UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE GENERAL PRINCIPLES 01' TUB LAW OF EVIDENCE IN THEIR APPLICATION TO THE TRIAL OF CRIMINAL CASES AT COMMON LAW AND UNDER THE CRIMINAL CODES OF THE SEVERAL STATES. IN ONE VOLUME. BY FRANK S. RICE, Counselor at Law, Author of Evidence in Civil Cases, 2 Vols. THE LAWYERS' CO-OPERATIVE PUBLISHING CO. ROCHESTER, N. Y. 1893. Entered according to Act of Congress, in the year eighteen hundred and ninety -three, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO., In the Office of the Librarian of Congress, at Washington, D. C. T K.3ol8e.v '8:93 E. K. ANDREWS, P1UNTER, ROCHESTER. N. T. PREFACE. In concluding the examination of a subject which has engrossed my attention for many years, a few explanatory paragraphs as to the scope and nature of the undertaking will gratify one indi- vidual at least, and find their warrant for appearing, in an im- memorial custom that now has all the force of a vested right. The only work published in this country avowedly dedicated to the consideration of criminal evidence, is Dr. Wharton's exceed- ingly able treatise written in 1846, and which reached its last edi- tion in 1884. This treatise while in every way an admirable pre- sentation of the subject as reflected by the learning of fifty years ago, has encountered the infelicities that time imposes upon every text-book, however meritorious and sufficiently emphasizes in its present condition the urgent call for a revised and modernized view of a great subject, and a re-examination of former postulates that are now pronounced untenable. It is universally conceded that the law of evidence in many of its relations to the rules of pleading and practice has assumed, within the last twenty years, an importance but indifferently ap- prehended by early writers. The laborious researches of the cele- brated commission which compiled the Anglo-Indian Evidence Act, resulted in a new analysis and classification of the law. These results have met with very general indorsement by both the Am- erican and English judiciary "who now regard the law of evi- dence as respects the relevancy of facts from the standpoint of inductive logic, as systematized and refined by John Stuart Mill. The relevancy of evidence is considered in their view, and prop- erly so, as a particular case of the process of induction; the pro- cess of inferring the unknown from the known. A fact, if it is to be received in evidence as relevant, must base its claims to consideration by the jury, upon grounds identical with those upon which a fact must claim consideration at the hands of a scientist when investigating physical facts. It must be a fact having a logical place in the chain of causation with reference to the ulti- mate fact to be proved." Commissioners Report, Proposed Code of Evidence of the state of JNew York. (hi) IV 1'KEFACE. This attribute of ''relevancy" is entirely controlled by the prin- ciples that govern logical analysis, while it adjusts itself to the emergencies of the particular case at bar through the application of rules that are in no wise fettered by either mere precedent or formula. In the suggestive language of Dr. Wharton: "It is now determined by the laws, not of formal jurisprudence, but of free logic ; and in obedience to this conviction we have a series of recent rulings based on logical as distinguished from technically juridical grounds." The rapid expansion of the science of evidence under the ad- vantages derived from past experience and investigation, has sub- jected many of its exclusionary rules, especially, to the crucial test of both forensic and judicial review, resulting in such a renova- tion of early theories as to make a complete re-examination of the entire law not only desirable but necessary. One difficulty is obvious; so long as the administration of remedial and punitive justice reposes in numerous independent tribunals, state and Fed- eral, it is inevitable that many mooted questions, especially those of first impression, will meet with discordant interpretations that ulti- mately engender such permanent contradiction as to repel all hope of reconciliation. In such cases it has been my endeavor to in- dicate the reasoning that contributes to this result, by apposite quotations from the sustaining authorities, accompanied by such cautionary suggestions as seem desirable, remembering that con- tradictory decisions are frequently a useful warning against as- suming too much or generalizing too far. As in the preceding volumes the writer studiously avoids any obtrusion of his personal views, and the constant endeavor is to state what the law of evidence is, first in its statutory phases, and secondly as expounded and interpreted by our courts of last re- sort, acting upon the impulse given by logical conclusions assumed after careful examination. In the endeavor to give comprehen- siveness and certitude to this exposition, I have had recourse to the entire mass of criminal adjudication as preserved in our vari- ous reports, state and Federal, while the leading law periodicals of the period have contributed their quota of information to the same result. Thousands of cases have been critically examined and classified, and every principle implicated with the scheme of evidence in these numerous decisions has been examined, an- nounced and digested. PREFACE. V The pivotal concept throughout lias been to display the entire range of evidentiary law under its modern aspect — to disclose in the simplest manner possible the principles that underlie the re- cent adjudications, with the logic sustaining them, and to place before the practitioner an assistant that will be found responsive to every call that the emergencies of a hotly contested case may reasonably demand. My further endeavor has been to emancipate the text as far as possible from metaphysical discussion and relined theorizing and to place every assertion beyond the reach of suspicion, by citing in its support the deliberate utterance of some tribunal entitled to respect. In the accomplishment of this design I have at rare intervals encountered contradictions of the character referred to. Frequently these discrepancies of view in the various jurisdic- tions arise from divergencies in the organic or statutory law that inspire antagonistic rulings that must be recognized as necessities of the situation and which must both be accepted and treated ac- cordingly. Following numerous precedents the subject is treated under five subdivisions or parts. Part I. considers criminal evidence in its general relations to the criminal law. In many instances the rule announced is equally applicable to the trial of a civil case, and in rare instances taken m extenso from the preceding volumes on Civil Evidence. Cross-references are frequently made to these volumes in order to avoid a duplication of statement, and to economize the space, which the extent and scope of the undertaking requires. Part II., discusses the instrumentalities of evidence and is an extended presentation of what is frequently regarded by adroit practitioners as the most vexatious phase of our entire subject. Part III., exhibits the evidence of the prosecution, under the recitals of the indictment, and is an attempt to faithfully portray the rules of evidence that are sanctioned by authority in order to secure the conviction of the accused. Part IV., is devoted to defensive evidence, and is expository of those rules that assist in determining the innocence of the de- fendant. Part V., is a somewnat ambitious attempt to simplify and lucidly state the more intricate problems of evidentiary law as found in the trial of specific offenses. Here I have endeavored VI PREFACE. to italicise all the deviations from standard rule and to clearly in- dicate the logic and effect of these deviations both upon the law and upon the practice. As an aspirant for favorable consideration I shall not rely either upon the generosity or the indifference of the public, but rather confidently depend upon its sense of fairness and candor. Upon this I base a hope that the merits of my undertaking will be found to far outweigh its imperfections, and that its deficien- cies and crudities will be attributed, in part at least, to the per- plexities imposed by the extended treatment of a vast subject, many of the subordinate phases of which are still involved in con- tradiction and obscurity, while others still are without 'the least aid from judicial interpretation. It is believed that a perusal of this final volume will justify a conclusion that the treatment accorded to the subject has been practical, accurate and modern, as well as exhaustive and discrim- inating. Fkank S. Bice. Kochester, May 15th, 1S93. TABLE OF CONTENTS. PART I. DISCUSSION AND SUMMARY OF GENERAL RULES. CHAPTER I. INTRODUCTION. Seel. Preliminary Suggestions 1 Sec. 2. What Distinguishes Criminal from Civil Evidence 2 Sec. 3. The Term "Evidence" Defined 3 Sec. 4. Definitions from the Celebrated "Field Code" 5 Sec. 5. Differences in the Effect of Evidence 7 Sec. 6. Observations on the Rules of Evidence 7 Sec. 7. What is Embraced in the Term " Crime" 9 Sec. 8. What is Criminal Law 10 Sec. 9. Principals and Accessories 11 CHAPTER II. JUDICIAL NOTICE. Sec. 10. Present Attitude of Judicial Authority 12 Sec. 11. Judicial Notice Excludes the Necessity of Proof .-. 13 Sec. 12. Late Statute Relating to the Subject 13 CHAPTER III. PRESUMPTIONS. Sec. 13. The Term Defined 15 Sec. 14. Presumptions of Law 16 Sec. 15. Presumptions of Fact 18 Sec. 16. Presumptions of Innocence 19 Sec. 17. Presumptions of Legitimacy _ 21 Sec. 18. Presumptions of Death 22 a. Raised by Continuous Absence for Seven Years 22 b. No Presumption as to the Time of Death Arises from Mere Absence .-. 23 c. How Established 23 d. Importance of this Presumption in Criminal Law 24 e. Suicide 24 Sec. 19. Presumption of Sanity and Responsibility 25 Sec. 20. Presumption where Accused is under Seven Years of Age 26 Sec. 21. Continuance 27 Sec. 22. Presumption of Guilt Arising from Silence and Conduct Generally 28 Sec. 23. Presumption of Natural Consequences of Act - - . 30 Sec. 24. Statutory Law of California on the Subject 30 (vii) Vlll TABLE OF CONTENTS. CHAPTER IV. PRIMA FACIE EVIDENCE. Sec. 25. Term Defined 35 Sec. 26. Case Made by 37 Sec. 27. Legislature may Declare Effect of 38 CHAPTER Y. BEST AND SECONDARY EVIDENCE. Sec. 28. Characteristics of Best and Secondary Evidence 41 Sec. 29. Foundation for Secondary Evidence _ 42 Sec. 30. Relaxation of the Rule in Certain Cases 44 Sec. 31. Notice to Produce 45 CHAPTER VI. DOCUMENTARY EVIDENCE. Sec. 32. Term Defined 48 Sec. 33. Public Documents in Evidence 50 a. Examined Copy __ 52 b. Recent State Legislation on the Subject 52 c. The Rule in California 53 d. The Rule in IS ew York 54 e. Rule in United States Courts 55 Sec. 34. Refreshing Memory by the Use of _ 56 a. Private Accounts and Documents Obtained by Seizure 58 Sec. 35. The English Rule 58 Sec. 36. Parol Evidence as Affecting 62 Sec. 37. Maps, Charts, etc. , in Evidence 62 CHAPTER VII. RELEVANCY. Sec. 38. Preliminary View, Term Defined 64 Sec. 39. Evidence Confined to the Point in Issue 66 Sec. 40. Relevancy, how Determined- 69 Sec. 41. The Attributes of Relevancy 70 Sec. 42. Offer of Proof 72 Sec. 43. Indecency no Ground for Excluding Relevant Testimony 74 CHAPTER VIII. LETTERS. Sec. 44. Present Rules Regarding Letters 79 Sec. 45. Importance of Letters 80 Sec. 46. Originals must be Produced or Accounted for 80 Sec. 47. Letter-press Copies ._ 80 Sec. 48. Foundation for Secondary Evidence of Contents 81 Sec. 49. Views of the Massachusetts Supreme Court.. 81 Sec. 50. Mailing Letters Raises the Presumption of Receiving 82 Sec. 51. Genuineness must be Shown 83 Sec. 52. Unanswered Letters ._ 84 Sec. 53. Failure to Answer as Admission 84 Sec. 54. Extract from a Lost Letter 84 Sec. 55. Decoy Letters . 85 Sec. 56. Miscellaneous Authorities. 85 TABLE OF CONTENTS. IX CHAPTER IX. TELEGRAMS. Sec. 57. Rule as to Letters Applied - 88 Sec. 58. Original Message the Primary Evidence _ 89 Sec. 59. Views of Different Courts. 90 a. Of Illinois Supreme Court 90 b. Of Alabama Supreme Court _. 91 c. Of the United States Circuit Court 92 Sec. CO. Presumptions as to Telegrams 94 Sec. 61. Secondary Evidence of Contents 95 CHAPTER X. MEMORANDA IN EVIDENCE. Sec. 62. Prerequisites Necessary to the Introduction of Memoranda 96 Sec. 63. Time of Making Memoranda 96 Sec. 64. Memoranda of Party Since Deceased 97 Sec. 65. Views of tbe United States Supreme Court 98 Sec. 66. Views of the Alabama Supreme Court 98 Sec. 67. Statement of the English Rule 100 Sec. 68. A Distinction Noted 100 Sec. 69. Restrictions of the General Rule. . 101 Sec. 70. Recent Cases Examined 102 Sec. 71. The Formula Deduced 107 CHAPTER XL PROOF OF HANDWRITIN'G- Sec. 72. How and by Whom Proved 109 Sec. 73. Rule as to Proof by Comparison in Different States. 110 a. Rule in Vermont 110 b. Rule in Massachusetts 110 c. Rule in New York 111 d. Rule in Alabama, Ohio and South Carolina 112 Sec. 74. Miscellaneous Authorities Examined 114 Sec. 75. Views of Mr. Wills 116 CHAPTER XII. PAROL EVIDENCE. Sec. 76. Its Extended Relatious to Criminal Cases Illustrated 118 Sec. 77. Statutory Instances of its Relevancy 119 Sec. 78. Must in all Instances be Direct 121 Sec. 79. Competent in Cases of Lost Instruments. 121 CHAPTER XIII. RES GESTAE. Sec. 80. Statement and Illustration of the Principle 122 a. Difficulty in Determining what is 125 b. Views of Mr. Rapalje 125 c. The General Rule 125 Sec. 81. What Evidence is Competent in Proof _ 126 a. The Rule in Roscoe 127 Sec. 82. Perplexing Nature of the Proof of. 128 X TABLE OF CONTENTS. Sec. 83. Three Leading Cases Examined 128 a. Pennsylvania Case 128 b. Michigan Case - - 130 c. A New York Case - -- 131 CHAPTER XIV. HEARSAY EVIDENCE. Sec. 84. Rule in Civil Cases Applied 133 •Sec. 85. General Rule Excluding - - - 133 •Sec. 86. Exceptions Noted by a "Prominent Text Writer 134 Sec. 87. When the Rule in Civil Cases does not Apply 136 Sec. 88. The Rule from Roscoe -- 136 CHAPTER XV. QUESTIONS OF LAW AND FACT. Sec. 89. Preliminary View 138 Sec. 90. Jury as Judges of the Law and the Fad 139 Sec. 91. Decisions Considered .. -_ 140 Sec. 92. Plea of Not Guilty Raises a Question of Fact 142 Sec. 93. Evidence of Habit is a Question of Fact .. 142 Sec. 94. The Result Stated 142 CHAPTER XVI. SCIENTIFIC BOOKS IN EVIDENCE. Sec. 95. Species of Evidence not Favored 144 Sec. 96. Not Read in Argument to Jury 146 Sec. 97. Partial Review of Authorities 146 Sec. 98. Views of Mr. Moak.. 147 Sec. 99. Exception Noted .. 149 CHAPTER XVII. PHOTOGRAPHY IN EVIDENCE. Sec. 100. Value of Photography in Evidence 150 Sec. 101. The Celebrated Udderzook Case Examined 150 Sec. 102. Accuracy of Photograph may be Questioned 151 Sec. 103. Photographs of Documents when Admissible - 152 CHAPTER XVIII. ORDER OF PROOF. Sec. 104. Order of Proof Largely Discretionary.. 155 Sec. 105. General Rule as to the Prosecution 155 Sec. 106. Usual Order of Proof in Criminal Cases 15*1 Sec. 107. Abuse of Discretion as Subject of Review 157 Sec. 108. Rule as to New Evidence... ... 157 Sec. 109. Pertinent Evidence may be Received at any Time 157 Sec. 110. Views of Judse Rosevelt 158 Sec. 111. Conditional Reception of Evidence on Promise to Show Rele- vancy 159 Sec. 112. Continuance Granted when 159 TABLE OF CONTENTS. XI CHAPTER XIX. EVIDENCE NECESSARY TO SECURE A CONTINUANCE. Sec. 113. Rule the Same as in Civil Cases 162 Sec. 114. Right not Affected by Admissions of Opposite Party. 162 Sec. 115. What Evidence is Necessary to Secure - 164 Sec. 116. What Motion Papers should Prove 165 CHAPTER XX. VARIANCE— IDEM SONANS. Sec. 117. The Term Variance Denned 167 Sec. 118. Proofs and Allegations must Correspond ... 167 Sec. 119. General Rule of Criminal Pleading Stated 168 Sec. 120. Illustration of these Rules 168 Sec. 121. Only Material Variance will be Regarded 169 Sec. 122. When Variance between Indictment and Proof will Call for Amendment 170 Sec. 123. The Doctrine of Idem Sonans Stated 170 Sec. 124. Instances of Immaterial Variance in Name... 171 Sec. 125. Extended Tabulation of the Cases from Rapalje's Criminal Pro- cedure 173 CHAPTER XXI. VIEWING THE PREMISES. Sec. 126. View Regulating the Statute 175 Sec. 127. Theory of Mr. Wharton 175 Sec. 128. New York Code Provisions 176 Sec. 129. The Views of the New York Supreme Court 176 Sec. 130. Vigorous Opposition to the Views Last Cited ^,. 179 CHAPTER XXII. OPENING AND CLOSING THE CASE. Sec. 131. Object of 181 Sec. 132. Extent to which Counsel may go in Opening 181 Sec. 133. Duty of the Respective Counsel in Closing the Case 183 Sec. 134. Arguing from Facts not in Evidence 185 CHAPTER XXIII. CHARGING THE JURY ON THE EVIDENCE. Sec. 135. Extreme Importance of the Subject 186 Sec. 136. Prominent Features of the Charge 188 Sec. 137. The Formula Usually Adopted 189 Sec. 138. Mistake, how Rectified 192 Sec. 139. Instances of Fatal Error 192 Sec. 140. Instructions must be Regarded in their Entirety 194 Sec. 141. Court Cannot Assume any Fact Established when there is Con- flict - 195 Sec. 142. Instructions are Advisory in their Nature... . 196 Sec. 143. Parlies may Submit Requests to Charge 197 Sec. 144. Instances of Harmless Error 198 Sec. 145. The Conclusion Reached as to Instructions 198 Sec. 146. Power to Direct a Verdict - -- 199 XLL TABLE OF CONTENTS. CHAPTEE XXIV. EVIDENCE OF PREJUDICIAL JURY. Sec. 147. Accused is Eutitled to Fair and Impartial Jury 200 Sec. 148. Mere Abstract Opinion of Guilt No Ground for Objection 200 Sec. 149. The Test of Competency 201 Sec. 150. When the Objection should be Regarded 203 Sec. 151. Irregularity of the Grand Jury may be Shown 204 Sec. 152. Evidence in Support of Verdict _. 206- CHAPTER XXV. EVIDENCE OF OTHER OFFENSES. Sec. 153. The General Rule Excludes 207 Sec. 154. An Exception Noted to the Above Rule 208 Sec. 155. Evidence of Another Crime if Pertinent to the Issue is Admis- sible 216- Sec. 156. Rule as to Misdemeanors 217 Sec. 157. Evidence of Other Offenses should be Cautiously Admitted 218 Sec. 158. Fabrication and Suppression of Evidence 219 1 CHAPTEE XXVI. DUTY OF THE JURY IN WEIGHING EVIDENCE. Sec. 159. What Rules should Govern 223 Sec. 160. A Distinction Noted.. 225 Sec. 161. Reconciling Variances 226 Sec. 162. Review of an Apt Decision in the United States Circuit Court.. 226 Sec. 163. Notes and Memoranda in the Jury Room 227 Sec. 164. May Return into Court for Information 227 Sec. 165. Instructions as to Duty in Weighing Evidence 228 Sec. 166. Relative Weight of Positive and Negative Testimony. _. 228 Sec. 167. Nature and Scope of the Scintilla Doctrine 229 Sec. 168. Statement of the Pennsylvania Rule ._ 232 Sec. 169. Views of Judge Foster... 232 CHAPTEE XXVII. EVIDENCE ON APPLICATION FOR A NEW TRIAL. Sec. 170. Preliminary Remarks. 234 Sec. 171. Prevailing Practice Outlined 235 Sec. 172. In what Cases Granted... 23ft Sec. 173. What Evidence should Show 236 Sec. 174. Doctrine of Anarchist's Case Stated.. 237 Sec. 175. Conflict in Evidence Ground for 238 Sec. 176. Insufficiency of the Evidence as Ground for 238 Sec. 177. Verdict against Weight of Evidence 242 Sec. 178. Newly Discovered Evidence 243 Sec. 179. Admission of Illegal Evidence as Ground for 244 Sec. 180. Statements of Prosecuting Attorney of Matters not in Evidence. 245 Sec. 181. Failure to Object to the Admission of Improper Evidence no Ground for 248 Sec. 182. Doctrine of Invited Error Considered 249 Sec. 183. Technical Errors Disregarded in Motion for 250 Sec. 184. Misconduct of Jury as Ground for 251 Sec. 185. Evidence of Irregularity in the Composition of the Grand Jury. 254- TAI5LK OF CONTENTS. X1L1 Sec. 18G, Evidence of the Record on Appeal 257 a. Rules in Admitting and Excluding Evidence. 257 b. Consideration of the Exceptions 258 c. When Exceptions are Deemed Waived 261 PART II. THE INSTRUMENTALITIES OF EVIDENCE. CHAPTER XXVIII. SECURING THE ATTENDANCE OF WITNESSES. Sec. 187. Subpuma, the Term Denned by Bnuvier 263 Sec. 188. Constitutional Guaranties to the Right to this Process 264 Sec. 189. Characteristics of the Writ -. 264 Sec. 190. United States Revised Statutes on the Subject 265 Sec. 191. Comments on the Writ 265 Sec. 192. Views of Mr. Justice Thornton 267 Sec. 193. Code Provisions on the Subject 271 a. Tennessee.. 271 b. Minnesota 271 c. California 272 Sec. 194. Writ of Habeas Corpus may Issue when 273 CHAPTER XXIX. COMPETENCY AND CREDIBILITY OF WITNESSES. Sec. 195. The Term Defined 275 Sec. 196. Competency Generally Presumed 275 Sec. 197. General Abrogation of Former Disqualifying Laws 278 Sec. 198. New York and California Rules Relating to the Subject-. 278 Sec. 199. Theory of Chief Justice Appleton 279 Sec. 200. Exceptions to the General Rule 280 a. Husband and Wife 280 b. Exception Arising from Lunacy or Intoxication 286 c. Exception as to Deaf Mutes ._ 289 d. Exception as to Infancy 289 e. Summary of the Foregoing Exceptions 291 Sec. 201. Credibility of Witnesses is for the Jury 292 Sec. 202. Effect of False Testimony on Credibility 293 CHAPTER XXX. PRIVILEGE OF WITNESSES. Sec. 203. Refusal to Answer Criminating Questions 296 Sec. 204. Witness may Waive his Privilege 296 Sec. 205. Court must Determine the Force of the Refusal . 297 Sec. 206. Restrictions upon the Privilege _ 298 Sec. 207. Recent Judicial Reviews of the Subject L".)!J Sec. 208. The Privilege of Attorneys ._ 314 Sec. 209. The Privilege of Physicians 317 Sec. 210. The Privilege of Clergymen 318 XIV TABLE OF CONTENTS. CHAPTER XXXI. THE EXAMINATION OF WITNESSES. Sec. 211. Method Discretionary with the Trial Court 319" Sec. 212. Strict Mode of Procedure Seldom Pursued 320 Sec. 213. Witness must Testify to Facts Within his Knowledge 321 Sec. 214. Examination in Chief — Views of Prominent Text Writers 321 Sec. 215. Object of the Examination in Chief 322 Sec. 216. Rule as to Leading Questions 323 Sec. 217. No Material Fact in Issue can be Assumed on Examination 326 Sec. 218. Nature and Scope of the Rebuttal Evidence in Criminal Cases.. 326 Sec. 219. The Cross-examination 329' a. Rule as to Hostile Witness 330 b. Confined to Relevant Facts 331 c. When Party Makes Witness his Own 333 d. Rule as to Collateral Matters 332 e. Duty of the Court to Protect the Witness 334 f. Cross-examination during Absence of the Accused 335 g. Recalling Witness... 335 h. Views of Sir James Stephen 336 i. Cause for Remembering Certain Facts 336 j. The English Rule 337 Sec. 220. Importance of Cross-examination 337 Sec. 221. Extent of the Cross-examination 338 Sec. 222. When Answer is Conclusive 341 Sec. 223. Cross-examination of Defendant in his Own Behalf 342 Sec. 224. Testimony of Witness since Deceased, Given on Former Trial.. 345 Sec. 225. Testimony of the Accused on his Preliminary Examination 357 Sec. 226. Summary of the Views here Stated 358 CHAPTER XXXII. IMPEACHMENT OF WITNESSES. Sec. 227. General Rules Relating to 359' Sec. 228. Great Latitude Allowed in Cross-examination 360 Sec. 229. To what the Attention of the Witness should be Called 361 Sec. 230. California Code Provisions on the Subject 362 Sec. 231. When the Impeachment is Effected 363 Sec. 232. Importance of Impeaching Testimony 363 Sec. 233. Partial Review of the Decisions _ 364 Sec. 234. When Party may Contradict His Own Witness 368 Sec. 235. Statement of the New York Rule.. 369 Sec. 236. Inconsistent Statements may be Shown 370 Sec. 237. Discrediting Party's own Witness on Ground of Surprise 372 Sec. 238. Party may Impeach a Witness he is Compelled to Call 374 Sec. 239. Specific Acts of Immorality cannot be Shown 375- Sec. 240. An Examination of Authorities 376 Sec. 241. When Declarations Made out of Court are Admissible 378 Sec. 242. Interpreter may be Impeached 378 CHAPTER XXXIII. DEPOSITIONS IN CRIMINAL CASES. Sec. 243. Only Admitted by Force of Statute 379' Sec. 244. Exposition of this Subject by New York Court of Appeals 383 a. Extreme Importance of the Right 385 b. Views of Distinguished Judges 385 Sec. 245. New York Criminal Code Provisions Stated 389. Sec. 246. Statement of the English and California Rule 394 Sec. 247. Examination of Witnesses Conditionally for the Accused 396' TABLE OF CONTENTS. XV PART III. EVIDENCE FOR THE PROSECUTION. CHAPTER XXXIY. EVIDENCE AFFORDED BY THE INDICTMENT. Sec. 248. What Allegations must be Proved and What may be Suggested. 397: Sec. 249. Phillips' "Three Rules" Stated 402; Sec. 250. Characteristics of an Indictment 402' Sec. 251. Rule Observed in Framing 403 Sec. 252. Former Strictness Relaxed 405 Sec. 253. Names of Witnesses must be Indorsed upon Indictment 406 Sec. 254. Evidence of Time and Place 407 Sec. 255. Quashing Indictment Founded on Illegal Evidence Given before the Grand Jury 409 Sec. 256. When Evidence Introduced to Sustain Indictment may be Stricken out 414 a. Examination of the Principle Affecting this Right to Exclude 415- b. Views of Justice McGowan and Others 415 c. Prejudice must have Resulted or Incompetent Evidence will Stand 418 d. When Incompetent Evidence is not Deemed Harmless ..419 e. When Motion to Strike out must be Made 420* CHAPTER XXXA^. BURDEN OF PROOF. Sec. 257. Preliminary View _ 421 Sec. 258. Burden of Proof Rests upon the Prosecution 421 Sec. 259. Never Shifts, but is with Prosecution throughout 424 Sec. 260. Where a Fact is Peculiarly within the Knowledge of a Party... 425 Sec. 261. When Accused must Establish the Defense of Insanity 426 Sec. 262. Proving a Negative 426 Sec. 263. A Prima Facie Case will not Rebut the Presumption of Inno- cence .. 427 Sec. 264. Burden of Proof in Statutory Crimes 42s Sec. 265. The Rule Deduced from the Celebrated Stokes Case 42s Sec. 266. Views of Sir James Stephen _._ 429 Sec 267. Summary of the Conclusion Reached 429 CHAPTER XXXYI. REASONABLE DOUBT. Sec. 208. Difficulty in Defining 431 Sec. 269. The Phrase "Moral Certainty" Examined. 435 Sec. 270. Observations of Authority on the Term "Reasonable Doubt" 436 Sec. 271. Views of the Missouri Supreme Court 437 Sec. 272. Extended Citation of Authorities 439' CHAPTER XXXVII. EVIDENCE OF MALICE, MOTIVE. PREMEDITATION AND IN- TENT. Sec. 273. Malice Defined. 441 Sec. 274. May be Expressed or Implied 442; XVI TABLE OF CONTENTS. Sec. 275. How Proved - 442 Sec. 276. Burden of Proof as to 443 Sec. 277. Intoxication as Affecting Malice 443 Sec. 278. Legal Significance of the Term "Motive" 444 Sec. 279. Term "Motive" Denned 445 Sec. 280. Collateral Facts in Relation to Motive 446 Sec. 281 . Any Proof Suggesting Motive is Relevant - 447 Sec. 282. What is Implied by tbe Term "Premeditation" 447 Sec. 283. Wide Range of the Evidence as to Premeditation ... 448 Sec. 284. Statement of the Rule as to Criminal Intent _ 449 Sec. 285. Intent, how Proved 449 Sec. 286. Presumption as to 450 Sec. 287. Prosecution may Show Evil Intent _-. 451 Sec. 288. Accused may Testify as to his Intent 452 Sec. 289. Digest Form of the Present Rule 455 Sec. 290. When Conviction may be had in the Absence of Criminal Intent 455 Sec. 291. Time not Necessary to form Criminal Intent 456 Sec. 292. Review of the Authorities 457 CHAPTEK XXXVIII. CORPUS DELICTI. Sec. 293. The Term Defined 465 Sec. 294. Full Proof of not Required. 466 Sec. 295. What must be Shown 466 Sec. 296. Cannot be Proved by Uncorroborated Confessions 467 Sec. 297. May be Shown by Circumstantial Evidence 469 Sec 298. Recent Legislation on the Subject 474 Sec. 299. Intent of the Rule Requiring Proof of 479 CHAPTER XXXIX. EVIDENCE OF IDENTITY. Sec. 300. A Cautionary Paragraph.. 480 Sec. 301. Circumstances from which Identity may be Inferred 481 Sec. 302. Voice as Evidence of Identity 482 a. Telephonic Communications 483 Sec. 303. Dress as a Means of Identification 485 Sec. 304. Perplexing Nature of this Grade of Evidence 486 Sec. 300. Cautionary Suggestions of Mr. Justice Taylor 486 CHAPTER XL. CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. Sec. 306. The Term " Confessions " Defined 488 Sec. 307. Confessions must be Voluntary 489 Sec. 308. Judge to Decide if Confession is Voluntary 491 Sec. 309. Presumption as to 491 Sec. 310. If Elicited by Fear or Menace should be Rejected 492 Sec. 311. Great Caution Enjoined in Receiving. 494 Sec. 312. Province of Court and Jury with Reference to 496 Sec. 313. Confessions not Conclusive 497 Sec. 314. Credibility of the Witnesses Proving may be Examined 497 Sec. 315. Confessions under Intoxication 498 Sec. 316. Confessions Obtaiaed by Improper Influence 499 Sec. 317. New York Rule Relative to 499 See. 318. Demeanor of the Accused when under Arrest— Effect of Silence 500 TABLE OF CONTENTS. XV11 CHAPTER XLI. EVIDENCE AFFORDED BY ACCOMPLICES. Sec. 319. Who is an Accomplice. 505 Sec. 820. Immunities of 505 Sec. 321. Testimony of Accomplice Competent to Convict 506 Sec. 322. Caution against the Infirmities of this Evidence . 506 Sec. 323. Corroborative Testimony should by Required 508 Sec. 324. Extent of Corroboration is for the Jury 511 Sec. 325. Cross-examination of an Accomplice .. 517 Sec. 326. Rights of an Accomplice Giving Evidence for the State 518 Sec. 327. Rule as to Co-defendants who have Pleaded Guilty 519 Sec. 328. Credibility of Accomplice is for the Jury 522 Sec. 329. Evidence of Detectives, Decoys and Spies 522 CHAPTER XLIL DYING DECLARATIONS. Sec. 330. Characteristics and Scope of 527 Sec. 331. Admissible only when Death is the Subject of the Charge 529 Sec. 332. Not Competent in Cases of Abortion 530 Sec. 333. Admitted on Ground of Necessity Alone _ 532 Sec. 334. An Exception to the Rule Regarding Hearsay 533 Sec. 335. Imminency of Death must be Apparent 534 Sec. 336. Infirmities of this Evidence Outlined 535 Sec. 337. Accused may Show Want of Belief that Death is at Hand 536 Sec. 338. Matters of Mere Opinion are Inadmissible... 536 Sec. 339. Narratives of Past Occurrences are Inadmissible 538 Sec. 340. Impeaching Character of Declarant 538 Sec. 341. Illustrations of Extreme Rulings 539 CHAPTER XLIII. CIRCUMSTANTIAL EVIDENCE. Sec. 342. Term Defined... 544 Sec. 343. Test of Sufficiency 546 Sec. 344. Theory of the " Connected Chain " Examined 546 Sec. 345. Direct and Circumstantial Evidence Contrasted 548 Sec. 346. What must be Proved to Warrant a Conviction by 549 Sec. 347. Instructions from the Court Regarding this Grade of Evidence.. 551 Sec. 348. Great Latitude Allowed in the Reception of 552 Sec. 349. Views of Eminent Text-writers 552 Sec. 350. Review of the Celebrated Webster Case— the Harris Case. 553 Sec. 351. The Maybrick Case Considered 557 Sec. 352. The Stokes Case Considered... 559 Sec. 353. Views of the Texas Supreme Court. 559 Sec. 354. Comparative Weight of Direct and Circumstantial Evidence 559 Sec. 355. Rules of Induction Specially Applicable to Circumstantial Evidence 561 Sec. 356. The Rule in Civil Actions Having Criminal Attributes 565 B / Xviii TABLE OF CONTENTS. PAET IY. EVIDENCE FOR THE DEFENSE. CHAPTER XLIV. EVIDENCE OF SELF-DEFENSE. Sec. 357. Preliminary Remarks 567 Sec. 358. What must Appear to Justify the Claim of Self defense 568 ; Sec. 359. Self-defense Rests upon Necessity 571 Sec. 360. Extent of the Retreat 572 Sec. 361. When Heroic Methods may be Employed 574 Sec. 362. Threats Considered in Relation to Self-defense __ 575 Sec. 363. Threats Competent to Show Intent 579 Sec. 364 The Rule in Alabama. 585 Sec. 365. Proof of Lying in Wait and Violent Temper 585 Sec. 366. Vacillation in the Authorities 589 Sec. 367. Pertinent Illustration of a Missouri Case 589 Sec. 368. Views of the Virginia Court 590 Sec. 369. Wbat is Reasonable Cooling Time. 592 Sec. 370. Extended Collation of Authority 594 CHAPTER XLY. EVIDENCE OF CHARACTER. Sec. 371. Statement of the Present Rule 596 Sec. 372. Record Evidence of Bad Character how Rebutted 597 Sec. 373. What Evidence of Character may Show 598 Sec. 374. Always Available where Evidence is Circumstantial 599 Sec. 375. The Cases Examined 600 Sec. 376. When Evidence is Confined to General Reputation 604 Sec. 377. The English Rule Examined 605 Sec. 378. When Evidence of Good Character is Unavailing 606 Sec. 379. The Rule Restated 607 Sec. 3S0. When Negative Evidence of Character is Competent 608 CHAPTER XLVL EVIDENCE OF FORMER JEOPARDY OR CONVICTION. Sec. 381. Doctrine of Autrefois Acquit and Convict Examined 612 Sec. 382. How Question is Determined 615 Sec. 383. Views of Mr. Bishop 616 Sec. 384. Evidence that Jury were Discharged is Equivalent to an Ac- quittal 616 Sec. 385. Miscellaneous Authorities Examined 616 CHAPTER XLVIL DRUNKENNESS, INFANCY AND COVERTURE AS AN EXCUSE FOR CRIME. Sec. 386. Preliminary Statement 620 Sec. 387. Drunkenness no Excuse for Crime '_ 620 Sec. 388. Presumption of Sanity Obtains 623 See. 389. New York Code Provisions 623 Sec. 390. Statement of the General Rule 624 Sec. 391. Instances of its Availability 624- TABLE OF CONTEXTS. XIX Sec. 392. A Distinction Noted. 627 Sec. 393. Non- Age as an Excuse for Crime 628 Sec. 394. The Authorities Examined 629 Sec. 395. Evidence of Marital Coercion as an Excuse 631 CHAPTER XLVIII. EVIDENCE OF INSANITY. Sec. 396. Preliminary Observations . . 634 Sec. 397. Conflicting Theories Regarding the Subject G34 Sec. 398. Insanity should be Established beyond a Reasonable Doubt 636 Sec. 399. Statement in the Doctrine of the Boswell Case 638 Sec. 400. Wide Acceptance of the Rule last Stated 640 Sec. 401. Attitude of the New York Court 641 Sec. 402. The Celebrated McNaghten Case Considered _ 642 Sec. 403. The " Right and Wrong" Test Considered by Mr. Justice Ladd of New Hampshire 645 a. Analysis of the NcNaghten Case 646 b. The Result Examined (147 c. Worthlessness of the Conclusion Shown 649 d. Practical Repudiation of the McNaghten Case by Eng- lish Jurists 650 Sec. 404. Early Views of the Massachusetts Court 650 Sec. 405. New York and Pennsylvania Cases Considered.. 651 Sec. 406. Instances where all Tests have been Discarded 652 Sec. 407. Delaware Adopts the New Hampshire View 653 Sec. 408. The " Right and Wrong" Test in Formulas 654 Sec. 409. Liberal Views of the Alabama Supreme Court 655 a. As to Medical Experts 656 b. But Three Questions for the Jury.. 658 c. Modification of the Rule in Boswell's Case. 659 d. "Right and Wrong" Test Denounced 659 e. Rule of the French and German Criminal Codes Stated 661 f. Dissenting Views of Chief Justice Stone.. 661 g. A Cautionary Paragraph. 663 Sec. 410. The Problem Considered by Dr. Ordronaux. 663 Sec. 411. The Guiteau Case Examined 665 a. Abuse of Insanity as a Defense 665 b. Evidence of Insanity in Parents and Immediate Relatives. 666 c. Legitimate Conclusions from the Evidence 666 d. The McNaghten Case again Reviewed 667 e. Monomaniac and Insane Delusions Considered 668 f. Unsworn Declarations of the Accused 669 g. The Test of Criminal Responsibility. 670 h. Theory of Irresistible Impulse Examined... 671 i. Review of the State Decisions 072 j. Comments of Judge Somerville 074 Sec. 412. Views of Mr. Robert Desty _ 675 Sec. 413. Views of the Florida Supreme Court 675 Sec. 414. Moral Insanity as an Excuse for Crime 676 Sec. 415. Summary of the Conclusions Reached 677 Sec. 416. Review of the Subject by the Nevada Supreme Court 078 CHAPTER XLIX. EVIDENCE OF ALIBI. Sec. 417. Term Defined 681 Sec. 418. Essentials of Alibi Evidence 681 Sec. 419. What the Proof Involves 681 Sec. 420. Credibility of— how Strengthened 682 XX TABLE OF CONTENTS. Sec. 421. Want of Harmony in the Decisions 683 Sec. 422. Burden of Proving with the Defendant 684 Sec. 423. Prejudicial Theories Regarding this Defense 685 Sec. 424. Shifting Nature of the Burden of Proof . 686 Sec. 425. Not Bound to Prove beyond Reasonable Doubt 686 Sec. 426. Views of Mr. Justice Best 687 Sec. 427. The General Rule. 687 Sec. 428. Miscellaneous Decisions _ 688 CHAPTER L. COMPULSORY EXAMINATION OF PERSON OR PAPER. Sec. 429. Right to Examine Generally Denied in Criminal Cases 691 Sec. 430. Views of Mr. Justice Balcom in the McCoy Case 690 Sec. 431. The Authorities Examined 692 Sec. 432. The Rule in Civil Actions for Damages 694 Sec. 433. Compulsory Production of Paper 695 PART V. EVIDENCE IN ITS RELATIONS TO SPECIFIC OFFENSES. CHAPTER LI. FALSE PRETENSES. Sec. 434. The Offense Denned 699 Sec. 435. What must be Proved - 699 Sec. 436. MustRelate to anExisting Fact -- 703 Sec. 437. Intent to Defraud must be Shown 708 Sec. 438. Something of Value must be Obtained 711 Sec. 439. Similar Frauds may also be Shown 711 Sec. 440. Evidence of Ability to Repay the Amount Obtained Immaterial 714 Sec. 441. Pretense must be such as to Mislead Men of Ordinary Prudence — Contradiction in the Decisions . -- 714 Sec. 442. Distinction between Larceny and False Pretenses 716 Sec. 443. Examination of the English Rule 718 Sec. 444. Partial Review of the Authorities 719 CHAPTER LIE LARCENY. Sec. 445. Larceny Defined ..-. -- - 722 Sec. 446. Larceny Includes False Pretenses and Embezzlement. 723 Sec. 447. Distinction between Larceny and False Pretenses still Preserved 723 Sec. 448. Felonious Intent must be Shown 724 Sec. 449. Every Larceny must Include a Trespass. 729 Sec'. 450. Corpus Delicti must be Shown 730 Sec. 451. What may be Shown when Identity is in Question 732 Sec. 452. Recent Possession of Stolen Property may be Shown 733 Sec. 453. Evidence of other Similar Offenses 735 Sec. 454. Case of Reg. v. Thomas Considered.. - 735 Sec. 455. Evidence of Value - -- 736 Sec. 456. New York Rule as to Name of Party Defrauded 738 Sec. 457. Review of Miscellaneous Authorities - - 738 TABLE OF CONTENTS. XXI CHAPTEK Lin. EMBEZZLEMENT, ROBBERY AND BURGLARY. Sec. 458. Embezzlement Defined . _ 742 Sec. 459. What must be Established to Warrant Conviction 743 Sec. 460. Evidence of other Fraudulent Acts Admissible 743 Sec. 461. The Term "Robbery" Defined 744 Sec. 462. What Evidence is Competent to Establish _ 744 Sec. 463. Views of Professor Greenleaf 746 Sec. 464. The Terms "Fear" and "Violence" Considered 747 Sec. 465. Description of Property Stolen not Required 748 Sec. 466. The Terms "Burglary" and "Break" Defined 748 Sec. 467. What the State must Prove 749 Sec. 468. Presumptive Evidence of 750 Sec. 469. What is "Constructive Breaking" 750 Sec. 470. Evidence of Former Attempts 751 Sec. 471. Partial Review of Late Decisions 752 CHAPTER LIV. MURDER AND MANSLAUGHTER. Sec. 472. Distinction between Murder and Manslaughter 754 Sec. 473. Degrees of the Offense 75»i Sec. 474. When Justifiable 7-"j7 Sec. 475. Effect and Definition of Provocation 758 Sec. 476. Texas Code Provisions on the Subject of Homicide 760 Sec. 477. When Causing Death does not Amount to Homicide 762 Sec. 478. A Celebrated Case Examined 762 Sec. 479. Intent to Kill is the Essence of the Crime 764 Sec. 480. How Death may be Accomplished 765 Sec. 481. Burden of Proving Mitigating Circumstances 765 Sec. 482. Evidence of Character in Cases of 765 Sec. 483. Evidence of Death by Poisoning 766 Sec. 484. Evidence of Blood Stains in Cases of Homicide 767 Sec. 485. Evidence should Convince Jury beyond Reasonable Doubt 770 Sec. 486. Note on Expert Medical Evidence. 771 CHAPTER LY. FORGERY. Sec. 487. Forgery Defined 772 Sec. 488. What Constitutes an Intent to Defraud 774 Sec. 489. What is Making a False Document 1 774 Sec. 41)0. What Constitutes Uttering 776 Sec. 491. What Evidence is Pertinent 777 Sec. 492. Declarations must be Considered in their Entirety 778 Sec. 493. Burden of Proof is upon Prosecution 779 Sec. 494. Other Forgeries may be Shown 779 Sec. 495. What State must Show in Case of Bill, Note, Check, etc.. 7S0 Sec. 496. Evidence of Handwriting 780 Sec. 497. Direct Evidence Seldom Required -- 784 Sec. 498. New York Code Provisions.. 784 CHAPTER LVI. PERJURY. Sec. 499. Term Defined 788 Sec. 500. Two Witnesses Required to Prove 791 XXU TABLE OF CONTENTS. Sec. 501. One Witness Insufficient 791 Sec. 502. Proof Required that Defendant was on Oath 792 Sec. 503. Impeaching Evidence always Competent 793 Sec. 504. Testimony of an Accomplice Received with Suspicion 793 Sec. 505. Authorities Considered 794 CHAPTER LVII. BIGAMY. Sec. 506. What Constitutes the Crime 799 Sec. 507. What Evidence is Admissible 799 Sec. 508. The Case of Reg. v. Lumley Examined 800 Sec. 509. Rule under the Common Law 801 Sec. 510. Domestic Marriage, how Proved 801 Sec. 511. Views of an Eminent Text-writer 804 Sec. 512. Actual Marriage must be Shown 804 Sec. 513. First Marriage may be Proved by Confession 805 Sec. 514. General Reputation and Cohabitation as Proof of Marriage 806 Sec. 515. What must be Shown by the Prosecution 807 Sec. 516. Legal Wife not a Competent Witness 810 CHAPTER LVIII. RAPE. Sec. 517. The Term Defined 812 Sec. 518. Offense must be "by Force, against her Will" 812 Sec. 519. What must be Shown .... 816 Sec. 520. Reputation of the Prosecutrix for Chastity 818 Sec. 521. Complaint of the Outrage may be Shown 825 Sec. 522. Caution as to the Admission of Uncorroborated Testimony 830 Sec. 523. Utmost Resistance must be Shown 831 Sec. 524. Presumption as to Infants * . 832 Sec. 525. Evidence of Previous Offenses or Attempts 836 Sec. 526. Consent Secured by Fraud 836 CHAPTER LIX. INCEST. Sec. 527. The Term Denned 838 Sec. 528. Concurring Assent of both Parties Necessary _. 838 Sec. 529. Consanguinity may be Proved by Defendant 841 Sec. 530. Offense^may be Committed with Illegitimate Daughter... 841 Sec. 531. Previous Acts of Lasciviousness may be Shown 842 CHAPTER LX. ADULTERY. Sec. 532. The Term Defined 847 Sec. 533. Elements of the Crime 847 Sec. 534. Presumptive Evidence may be Sufficient 847 Sec. 535. Positive Proof never Required 848 Sec. 536. Views of Lord Stowell on the Subject 850 Sec. 537. Prior Offenses between the Parties may be Shown 851 Sec. 538. Admissions of Marriage Competent 852 Sec. 539. Adulterous Disposition may be Shown 852 Sec. 540. Birth of Child as Evidence of 853 Sec. 541. Reputation for Chastity may be Shown --- 854 TABLE OF CONTENTS. XX111 CHAPTER LXI. BASTARDY. •Sec. 542. The Term "Bastard" Defined 857 Sec. 543. Rule as to Children Born in Wedlock 857 Sec. 544. Unchaste Conduct of the Mother may be Shown 858 Sec. 545. Evidence of "Non-access" Competent 858 Sec. 546. Mother of Bastard may Prove Illicit Intercourse - 858 Sec. 547. When Presumption of Legitimacy will Govern - 860 Sec. 548. Resemblance as a Test of Parentage 860 Sec. 549. Charge may be Sustained by Preponderance of Testimony 801 CHAPTER LXII. SEDUCTION UNDER PROMISE OF MARRIAGE. Sec. 550. Term Defined 867 Sec. 551. Nature of the Proof .868 Sec. 552. Previous Chastity of the Woman the Main Issue 870 Sec. 553. Distinction between Seduction and Rape - 874 Sec. 554. Presumption as to Chastity, how Rebutted . _ 875 Sec. 555. Corroboration Required as to Promise and Intercourse s~7 Sec. 556. Time not Material 879 CHAPTER LXIII. CRIMINAL LIBEL. Sec. 557. The Term "Libel" Defined. 881 Sec. 558. What Constitutes Criminal Libel 882 Sec. 559. The Term " Publication " Defined 883 Sec. 560. Publication, how Proved . 883 Sec. 561. What the Indictment must Show 884 Sec. 562. Outline of Plaintiff's Proofs 885 Sec. 563. A Restriction upon Plaintiff's Evidence Noted 887 Sec. 564. Evidence in Aggravation of Damages 887 Sec. 565. Malice as an Element, Presumptions as to 888 Sec. 566. Privileged Communications. 889 Sec. 567. Rules as to Justification. 891 Sec. 568. Repetition of a Slander 892 Sec. 569. Malice, how Proved 892 Sec. 570. Evidence of Intent Material , 893 Sec. 571. Accused may Swear to his Intent 893 Sec. 572. Fair Criticism Allowed 894 Sec. 573. Rules as to Editors and Reporters 896 Sec. 574. Miscellaneous Authorities on the Subject 896 CHAPTER LXIV. CRIMINAL CONSPIRACY. Sec. 575. What Constitutes Conspiracy 809 Sec. 576. One Member of the Confederacy may be Convicted 901 Sec. 577. Proof under Indictment Governed by Same Rules as in Other Cases 901 Sec. 578. Declarations of Coconspirators Considered 901 a. New York Decisions in Reference to 901 b. The Wisconsin Rule 902 c. Views of Mr. Roscoe i»02 d. Other Sustaining Authorities ( J03 XXIV TABLE OF CONTENTS. Sec. 579. Defendant's Guilt must be Established by Evidence of bis own Acts 904 Sec. 580. Rule as to Criminal Intent . .. 904 Sec. 581. When Proof of Conspiracy must First be Shown 905 Sec. 582. What may be Shown in Aggravation of the Offense 905 Sec. 583. Rule from the " Star Route Case as to Reasonable Doubt 906 CHAPTEE LXV. EVIDENCE IN TRIALS BY COURTS-MARTIAL. Sec. 584. Courts-martial Entertain a Limited Jurisdiction 908 Sec. 585. Rules of Evidence Governing . . 909 Sec. 586. Arbitrary Nature of the Rules 909 Sec. 587. Justified only by Military Necessity 910 Sec. 588. Review of the Celebrated Milligan Case — 911 Sec. 589. Extract from De Hart's Military Law 913 Sec. 590. Power of these Courts to Originate Evidence 914 Sec. 591. Functions of the Judge Advocate 914 Sec. 592. Evidence in Support of the Averments of the Charge 914 Sec. 593. Liberal Rules as to Defensive Evidence 915 Sec. 594. Rule as to Counsel 915 Sec. 595. Recalling Witnesses 916 Sec. 596. Evidence of the Record on Appeal 916 Sec. 597. Partial Review of Miscellaneous Authorities . 917 CHAPTER LXVI. INTERSTATE RENDITION AND INTERNATIONAL EXTRADI- TION. Sec. 598. The Term Extradition Defined 920 Sec. 599. New York Legislative Enactments Regarding 921 Sec. 600. Evidence under United States Revised Statutes. .. 924 Sec. 601. Comments upon the Constitutional Provisions 928 Sec. 602. What Justifies the Issuance of the Warrant 928 Sec. 603. Rights of Party Proceeded Against... .. — 930 Sec. 604. Conduct of Proceedings 931 Sec. 605. Evidence by Deposition 932 Sec. 606. Hearing on Application for 933 Sec. 607. Accused must be Tried for the Offense for which he was Extradited ...934 a. Distinction in Cases of Interstate Rendition. _. 935 Sec. 608. Fugitive may be Surrendered for any Offense 938 Sec. 609. Evidence as Affected by Treaty Stipulations with Foreign States 939 Sec. 610. What Evidence will Authorize an Arrest 940 Sec. 611. What the Affidavit should Disclose 942 Sec. 612. Evidence in Habeas Corpus Proceedings .- 943 TABLE OF CASES. Aaron v. State, 37 Ala. 106 405 Abbott v. People, 86 N. Y. 460 321 v. State, 59 In d. 70 773 Abernathy v. Abernathy, 8 Fla. 243 75 Abernethy v. d >m., 101 Pa. 328 582 Abney v. Kingsland, 10 Ala. 355, 44 Am. Dec. 491 414 Accident Ins. Co. ot N. A. v. Bennett, 90 Tenn 23f i 25 Acklen v. Hickman,~60 Ala. 3B8 '.'".'.'.'". 99 Adae v. Zangs, 41 Iowa, 536. 104 Adams v. Adams, 16 Pick. 254.. 08 v. Davidson, 10 N. Y. 309 89 v. Field, 21 Vt. 256. 110, 116 v. Hannibal & St. J. K. Co., 74 Mo. 556, 41 Am. Hep. 333 108 v. Jones, 39 Ga. 479 22, 23 v. Keunedy, 90 Ind. 318 195 v. Robinsou, 65 Ala. 587 337 v. State, 67 Ala. 89 171, 173 V. State, 52 Ga. 565 404 V. State, 99 Ind. 244 616 V. State, 29 Ohio St. 412 440 v. Wheeler, 97 Mass. 67. 373 Adrian ce v. Arnot, 31 Mo. 471 319 v. Lagrave, 59 N. Y. 110, 17 Am. Hep. 317 932 .Etna Ins. Co. v. Weide, 76 U. S. 9 Wall. 677, 19 L. ed. 810 98,101 Ahitbol v. Beniditto, 2 Taunt. 401 172 Ake V. State, 6 Tex. App. 398, 32 Am. Rep. 586 430 Albinr. State, 63 Ind. 598 682 Albrecht v. People, 78 111. 510 219 Alderman v. People, 4 Mich. 414 518 Alexander v. Byron, 2 Johns. Cas. 318.. 159 V. Dunn, 5 Ind. 122 258 v. Mt. Sterling. 71 111. 366 481 v. People, 96 111. 96 26,425 V. State, 12 Tex. 540 526 V. State, 25 Tex. App. 260, 8 Am. St. Rep. 438 577,771 Allay v. Hutchings, 2 Mood. & R. 358... 373 AUbritton v. State (Ala.) Jan. 7. 1892 684 Allen's Case, 3 City Hall Rec. 118 707 Allen v. Harrison, 30 Vt. 219 363 v. State, 87 Ala. 107... 228 v. State, 17 Tex. App. 637 594 Allison v. Cum., 99 Pa. 32 202 y. People, 45 111. 37 861 Alton v. Hope, 68 111. 168 10 American Ins. Co. v. Butler, 70 Ind. 1.. 195 American U. Teleg. Co. v. Daughtery, 89 Ala. 191 ."91, 95 Amidon v. Hosley, 54 Vt. 25. 363 Anable v. Com., 24 Gratt. 563 403, 708 Anderson v. Cranmer, 11 W. Va. 562 25 v. Parker, 6 Cal. 197 23 V. Home, W. & O. R. Co., 54 N. Y. 334 412,418,419 V. Root, 8 Smedes & M. 362 46 r. State, 104 Ind. 467, 5 Am. Rep. 601 139,140, 832 V. State, 41 Wis. 430 .193, 430, «7 v. State, 43 Conn. 514, 21 Am. Rep. 669 241,003 V. State, 2 Wash. 183 2.53 Audre v. State, 5 Iowa, 398, 68 Am. Dec. 708 854 Andrews v. Dieterich, 14 Wend. 31 738 v. People, 60 111. 354 452 v. State, 2 Sneed, 550 104 Angelo v. People, 90 111.2U9, 30 Am. Rep. 132 248 Annesley v. Lord Anglesea, 17 How. St. Tr. 1430 560 Anonymous, Ambl. 252 57 Anonymous, 17 Abb. Pr. 48 69 Anonymous, 5 Coke, 125a 882 Anthony v. Smith, 4 Bosw. 503 159, 320 v. State, 1 Meigs, 265, 33 Am. Dec. 143 191,543 Apothecaries Co. v. Beotley, Russ. & M. 159 425 Arcia v. State, 28 Tex. App. 198 408 Argo, The, 1 Gall. 150 570 Armitaire r. state. 13 Ind. 441 45 Armour v. State. 63 Ala. 173 598 Armory v. Delamirie, 1 Strange, 504 487 Armstrong r. Lear, 33 U. S. 8' Pet. 52, 8 L. ed. 863 53 v. People. 70 X. Y. 38, 44 ...510, 867, 869, 870, 873, 874, 877, 880 V. State, 27 Fla.366. 676 v. Tait. 8 Ala. 035 198 Arnold v. Macungie Sav. Bank, 71 Pa. 2£7 70 V. State, 53 Ga. 574 807, 809 v. State, 23 Ind. 170 437 Arthur Armstrong's Case, 1 Hale P. C. 693.. 810 Ashbury v. Sanders, 8 Cal. 02, 08 Am. Dec. 300 22 Ashley v. Martin, 50 Ala. 537 70 Ashwbrth r. Kittridge, 12 Cush. 193, 59 Am. Dec. 178 ....146,147, 149 Astley v. Astley, 1 Hagg. Eccl. Rep. 719 854 Atchison v. Morris, 11 Fed. Rep. 582.... 931 Atchison, T. & S. F. R. Co. v. Beets, 10 Colo. 431.. 53 Atherf old r. Beard, 2 T. R. 610 50 Atkins v. State, 16 Ark. 568 328, 594 Atkinson v. Anderson, L. R. 21 Ch. Div. 100 863 v. Dailey, 107 111. 117 198 Atty. Gen. v. Hitchcock, 1 Exch. 91.... 333 Atwill v. Mackintosh, 12(1 Mass. 177 891 Atwood v. Impson, 20 N. J. Eq. 15U 363 v. Welton, 7 Conn. 70 358 Augusta v. Windsor, 19 Me. 317 97 Augustus v. Graves, 9 Barb. 596 137 Aurora v. Cobb, 21 Ind. 492 332 Austin v. State, 14 Ark. 555 ...332, 508 v. Thompson, 45 N. H. 113 40 Austine v. People, 51 111. 236 495, 490 Avery v. State, 10 Tex. App. 199 352 Axtel i). Chase, S3 Ind. 546 258 Ayrault v. Chamberlain, 33 Barb. 229... 181 Ayre v. Craven, 2 Ad. & El. 2 883 B. Baalam v. State, 17 Ala. 433 209 Babcock v. People, 13 Colo. 515 575, 584 v. People, 15 Hun, 347. _. 465 Baccio v. People, 41 N. Y. 205 827, 828,834,835 Bacon v. Parker, 12 Conn. 212 240 v. Williams. 13 Gray, 525 782 Badger v. Badger, 88 N. V. 547 810 (x.W XXVI TABI.K OF CASKS. Bagley v. Cleveland Roll. M. Co., 21 Fed. Rep. 159 231 Bagwell v. State, 56 Ga. 406 160 Baier v. Berberieh, 85 Mo. 50 260 Bailey v. Bailey, 25 Mich. 185 24 V. Com., 82 Va. 107 2:58, 831 v. State, 26 Ga. 579, 80 Ga. 359.. 491, 615 V. State, 26 Ind. 422 628 r. State, 67 Mass. 333 a51 Bainbridge v. State, 30 Ohio St. 205 458 Baird r. (iillett, 47 X. V. L86 412, 419 Bakeman v. Hose, 14 Wend. 105, 18 Wend. 146 376.824 Baker r. Cum. (Ky.) Nov. 28, 1S91 348 v. Dessauer. 49 Ind. 2s 258 v. Gausin, 76 Ind. 317 127 v. Joseph, 16 Cal. 173 260 t'. Lyman, 53 Ga. 3 9 70 V. People, 105 111.452 208 V. State, 4 Ark. 56.... 327 V. State, 2 Ind. App. 517 242 V. State, 29 Ohio St. 184 740 V. State, 4 Tex. App. 227 258 v. State, 47 Wis. 111. 80 Wis. 416.802, 902 v. United States, 1 Pinney, 641.849, 854 Baldwin v. Branch Circuit Judge, 48 Mich. 525 931 V. State, 12 Mo. 223. 634, 636 Bales v. State, 63 Ala. 30 149 Ball i\ Com., 8 Leigh, 726 240 V. Evening Post Pub. Co., 38 Hun. 15 _ 69 Baltimore & O. R. Co. v. State, 41 Md. 268 373 Bancroft r. Bancroft, 3 Swab. & T. 610. 68 Bank of Com. v. Mudgett, 44 N. Y. 514. 781 Bank of Middlebury v. Rutland, 33 Vt. 414 142 Bank of Salina v. Henry, 2 Denio, 155.. 296,301 Bank of Utica v. Mersereau, 3 Barb. Ch. 528 299, 316 Banks v. State, 72 Ala. 522 . . _ 546 Barber v- Bennett, 58 Vt. 476, 56 Am. Rep. 565 102 Barker, Ex parte, 11 Crim. L. Mag. 632. 930 Barkers. Kuhn, 38 Iowa, 392 352 v. State, 48 Ind. 163 139 Barnards r. State, 88 Tenn. 229 571 Barnes V. People, 18 111. 52 171, 172 v. State, 88 Ala. 204 584 v. State, 36 Tex. 356, 41 Tex. 342. . . 496, 546, 559 Barnctt v. State, S3 Ala. 40 827 Barney v. People, 22 111. 160. 831 v. State, 12 Smedes & M. 68 203, 255 Baron v. People, 1 Park. Crim. Rep. 246 404 Barons v. Brown, 25 Kan. 410 90, 92 Barrett v. Carter, 3 Lans. 68 159 Barron v. Baltimore, 32 D. S. 7 Pet. 247, 8L.ed.674. 383 Barrows v. Carpenter, 11 Cush. 456 884 Bartholomew v. Clark, 1 Conn. 472 240 v. People, 104 111. 601, 44 Am. Rep. 97 225 Bartlett v. Beardmore, 74 Wis. 485 258 Barton v. Kane, 17 Wis. 38 258 v. State, 29 Ark. 68.. 733 v. State. 12 Neb. 260 255 v. State. 18 Ohio. 221 ..77, 207, 327 Bartow v. People, 78 N. Y. 377 743 Bassell v. Elmore, 48 X. Y. 561 886 Basset t V. Spofford, 45 X. Y. 388, 6 Am. Rep. 101 724 Batdorff v. Farmers Xat. Bank, 61 Pa. 179 260 Bate r. Kinsey, 1 Cromp. M. & B. 41 221 } ates r. United States, 10 Fed. Rep. 92.. 525 Batten v. State. 80 Ind. 394 4:56 Batturs r. Sellers, 5 Harr. & J. 119 502 Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691 839 Bauskett v. Keitt. 22 S. C. 187 Baxter v. Abbott, 7 Gray, 71 Baylest). State, 63 A la. 30 Beagles v. Sefton, 7 Ind. 496 Beal v. Nichols, 2 Gray, 262 Beall v. State, 15 Ind. 378 Bean v. Briggs, 4 Iowa, 464 Beasley r. State, 59 Ala. 20 Beattic v. Hilliard, 55 N. H. 428 Beauchamp v. State, 6 Blackf. 299... 441, Beaulieu v. Portland Co., 48 Me. 291 Beaver v. Tavlor, 68 U. S. 1 Wall. 637, 17 L. ed. 601 Beavers v. State, 58 Ind. 530 Beck v. State, 20 Ohio St. 228 Becker v. Koch, 104 X. Y. 394 Bedell v. Foss. 50 Vt. 94 Bedford v. State, 5 Humph. 553 Bed good v. State, 115 Ind. 275 Bedingneld's Case, 14 Am. L. Rev. 817, 15 Am. L. Rev. 71 Beers v. Jackmau, 103 Ma?3. 192 Beery v. United States, 2 Colo. 186 Beggarly v. State. 8 Baxt. 520 Behrendt, R<\ 23 Blatchf. 40 Belknap v. Sealey, 14 N. Y. 143, 67 Am. Dec. 120 Bell v. Brewster, 44 Ohio St. 690 v. Rinner. 16 Ohio St. 45 v. State, 66 Miss. 192 Bellefontaine B. Co. v. Hunter, 33 Ind. 354, 5 Am. Bep. 201 Bolton v. Fisher, 44 111. 32.. Bemis v. Kyle, 5 Abb. Pr. N. S. 252 Benedict!). Williams, 48 Hun, 123 Bennett ii. State, 8 Humph. 118 V. State, 24 Tex. App. 73 Benson v. McMahon, 127 i'. S. 457, 32 L. ed. 234 Benstine r. State, 2 Lea, 169. 31 Am. Rep. 593.. 606,826, Benton v. Starr, 58 Conn. 285 Berckmans v. Berckmans, 16 X T . J. Eq. 122.... Bergen V. People, 17 111. 426, 65 Am. Dec. 672 ._ Bergin, Re, 31 Wis. 386 Bergin v. State, 31 Ohio St. Ill 635, Berkey v. Judd, 22 Minn. 287 Berlinger v. State, 6 Tex. App. 181 Berry v. People, 1 X. Y. Crim. Rep. 57.. V. State, 63 Ala. 126 v. State, 10Ga.511 v. State, 31 Ohio St. 219, 27 Am. Rep. 506 Betts B. Jacks, a), 6 Wend. 181 Bickham v. Smith, 62 Pa. 45 Bickley v. Com., 2 J. J. Marsh. 572... 264, Bielschofsky v. People, 60 X. Y. 616 462,700, Bigelow r. Hall, 91 X. Y. 145 Biggs v. State, 29 Ga. 723, 76 Am. Dec. 6:50.. Bigler v. Reyher, 43 Ind. 112... Bilberry v. Mobley, 21 Ala. 277 Biles v. Com., 32 Pa. 529, 75 Am. Dec. 568 Bintield v. State, 15 Xeb. 484 Binney v. Russell, 109 Mass. 55 . . . Binns v. State, 46 Ind. 311, 66 Ind. 432 ...16, 448, 533, 536, Bird v. Miller, 1 McMull. L. 123 Birtwhistle v. Yardill, 7 Clark & F.895 . Biebey v. Shaw, 12 X. Y. 67 Biseoe v. State, 67 Md. 6 .. Bishop v. State, ft Ga.121... Black r. Black, 30 X. .7. Eq. 228 v. State, 57 Ind. 109.... v. State, 1 Tex. App. 368 . . . 352, Blackburn v. Com., 12 Bush, 181 .... v. Crawford, 70 U. S. 3 Wall. 175, 18 L. ed.186 v. State, 23 Ohio St. 146 468, 373 637 149 258 325 741 53 710 91 448 230 80 160 252 373 69 240 313 K5 853 499 499 932 248 116 289 580 108 172 370 723 607 371 924 834 850 355 9 640 4.55 404 511 255 503 727 16 260 267 714 106 765 352 414 778 594 91 538 116 863 893 504 160 850 174 559 371 43 673 TABLE OF CASES. xxvu Blackincrton v. Johnson, 126 Mass. 21... 325 Blacklawsi;. Milne, 82 HI. 505 864 Blackman v. State, 78 Ga. 596 183 Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717 694 Blair v. Turtle, 1 McCrary, 372 931 Blake,!'. Blake. 70 111. 618 850 r. People, 73 N. Y. 586 588 v. Buss, 33 Me. 360. 46 v. Sawin, 10 Allen, 340 436 v. State, 3 Tex. App. 581 572 Blakely v. Frazier, 20 S. C. 144 70 Blakeslee v. Scott, 37 Pbila. Leg. Int. 474 232 Bland i;. Warren, 65 N. C. 372 98 Blankenship v. Douglas, 26 Tex. 230.... 189 v. State, 55 Ark. 244 194, 688 Blige v. State, 20 Fla. 742 165 Blizzard r. Applegate, 77 Ind. 516 414 Bloch v. Price, 24 Mo. App. 14 455 Blocker r. State, 9 Tex. App. 279... 440 Blodgett Paper Co. v. Palmer, 41 N. H. 403... 455 Bloomer v. People, 1 Abb. App. Dec. 146 744 v. People, 3 Keyes, 9 746 v. State, 48 Md. 521 67 Bloomington v. Sbrock, 110 111. 219, 51 Am. Rep. 679 145 Bluck v. Tborne, 4 Campb. 192 83 Blunt r. Little, 3 Mason, 102... 442 Blytbe v. State, 47 Obio St. 234 178 Boddie v. State. 52 Ala. 395 827 Boddy v. Boddy. 30 L. J. Mat. 23 851 Bode v. State, 6 Tex. App. 424. 455 Bogardus v. Trinity Church, 4 Paige, 198 865 Bogart, Be, 2 Sawy. 396 908, 917 Boggs v. State, 8 Ind. 463 260 Bohannon v. Com., 8 Bush, 481. 573 Bnk r. Vincent, 12 Abb. Pr. 137. 370 Bond i\ Poutiac, O. & P. A. R. Co., 62 Mich. 643 334 v. State, 21 Fla. 738 770 Bone v. State, 86 Ga. 108 86 Bonfanti c. State, 2 Minn. 123 636 Bonker v. People, 37 Mich. 4 452 Bonner v. State. 55 Ala. 242.... 499 Bonner c, Glattfeldt, 120 111. 166 106 Bonsall v. State, 35 Ind. 460 77, 208 Booth v. Hart, 43 Conn. 480 _ 859 Bosley v. Chesapeake Ins. Co., 3 Gill & J. 450 198 Bostick v. State, 3 Huniph. 344."."."."".""" 379 Boswell v. Com., 20 Gratt. 860 193. 444, 621, 635, 636, 638, 640 v. State, 63 Ala. 307. 35 Am. Hep. 20 430,635, 638. 659, 662, 677 Bottoralev v. United States, 1 Story, 135. 209, 210. 212, 459, 700, 714 Bounds v. Schwab, 5 Sneed, 594 366 Bow v. Allenstown, 34 N. H. 365, 69 Am. Dec. 489 16 Bowell v. State, 63 Ala. 307, 35 Am. Rep. 20 771 Bowen v. State, 9 Baxt. 45, 40 Am. Rep. 71 716 v. Stare, 3 Tex. App. 623 136 Bowers v. People, 74 111. 418 292 v. State, 29 Ohio St. 542 316 Bowler v. State, 41 Miss. 570 405 Bowler's Case, 67 Hans. Pari. Deb. 480.. 674 Bowles v. Bingham, 2 Muuf. 442, 5 Am. Dec. 497 857 Boyce v. People, 55 N. Y. 644 ....510, 867, 868, 870, 873, 874, 877, 879 Boyd v. Com., 77 Va. 52 400 v. United States, 116 U. S. 616. 29 L. ed. 746 58,310,475,096 Boyer v. State, 16 Ind. 451... 616 Boyle v. Kreitzer, 46 Pa. 465 363 v. Levings, 2& 111. 314 261 V. State, 105 Ind. 469, 55 Am. Rep. 218 ....197, 346, 348, 443, 528, 531, 533, 535, 537, 538 Boynton v. Trumbull, 45 N. H. 40S 206 Bradford v. Bush, 10 Ala. 386 370 v. State, 15 Ind. 347 206 Bradlaugh v. Keg., L. R. 3 Q. B. 607 .400, 743 Bradley v. Bradley, 4 Whart. 173 23 v. Heath, 12 Pick. 163, 22 Am. Dec. 418 890 V. State, 31 Ind. 492 26. 141, 440, 662 Bradshaw v. Combs, 102 111.428 320 Brady v. Com., 11 Bush. 282 440 Bragg v. Colwell, 19 Ohio St. 407 114 Bramlette v. State, 21 Tex. App. 611, 57 Am. Rep. 622. 439 Brandon v. People, 42 N. Y. 265 a51 Brant v. Fowler, 7 Cow. 562 253 Braswell v. Star.-. 2 Crim. L. Mag. 32.... 423 Brauer c. State, 25 Wis. 413... 817 Bray v. State, 41 Tex. 560 440 Breed v. First Nat. Bank, 6 Colo. 235 . 79 83 89 92 94 Breedlove"i\ Bundy," 96 ind! 319. ..'...' .158 Breen v. People, 4 Park. Crim. Rep. 380 194 Bressler v. People, 117 111.422 440 Briceland v. Com.. 74 Pa. 469 685 Brierly v. Davol Mills, 128 Mass. 291 70 Briflitt v. State. 58 Wis. 39 13 Brinkley v. State, 58 Ga. 298 678 Brister u. State, 26 Ala. 129 499 Broad v. Pitt, 3 Car.&P.518 . 318 Brock r. State, 26 Ala. 105 207 Broad head r. Wlltse, :>5 Iowa, 42!) 147 Brogy v. Com., 10 Gratt. 722 355 Brolley v. Lapham, 13 Gray. 294 370 Bromage v. Prosser, 4 Barn. & C. 247.442, 888 Bronner v. Loomis, 14 Hud, 341 _. 115 Brooke v. Winters. 39 Md. 505 70 Brooklyn Oil Works r. Brown, 38 How. Pr. 451 165, 166 Brooks r. Dutcher, 22 Neb. 644 258 v. State, 90 Ind. 428 139 v. Weeks. 21 Mass. 4313 374 Brothertou v. People, 75 N. Y. 159 ,. 422. 426. 528, 537, 63C Brown, Ex parte, 28 Fed. Rep. 653 943 Brown, Rr, i N. Y. Crim. Rep. 576 929 Brown v. Brown, L. R. 1 Prob. & Diw 46, 270 68 V. Burrus,8 Mo. 26 325 r. Com.. 86 Va. 466 141 r. Com., 73 Pa. 321, 13 Am. Rep. 740 203, 255, 380, 382, 384. 387, 528 v. Com., 76 Pa. 319 442,483 v. Com., 78 Pa. 122 673,674 r. European & N. A. R. Co., 58 Me. 384 230,233 v. Giles, 1 Car. & P. 118, 2 Phil. Ey. 500 326 v. LaCrosse, C. G. L. & C. Co., 21 Wis. 51 252 v. Marshall, 47 Mich. 576, 41 Am. Rep. 728 156 v. Mooers, 6 G ray . 451 373 r. Osgood, 25 Me. 505 370 v. People, 16 Hun, 535 708, 721 v. People, 36 Mich. 203.. 813 v. Piper, 91 U. S. 41. 23 L. ed. 201. . 12, 13 V. State.24 Ark. 620 160, 164, 276 V. State, 2 Tex. App. 115 289 v. State, 18 Ohio St. 496 292 v. State, 32 Miss. 4:33 4«7 V. State, 55 Ark. 593 576 V. State, 83 Ala. 33. 585 v. State, 1 Tex. App. 155 732 V. State, 52 Ala. 338 805, 807, 809 V. Swineford, 44 Wis. 282,28 Am. Rep. 582 248 U.Torrey,24 Barb. 583 25 V. Wood, 19 Mo. 475 37" Brown's Case, 3 City Hall Rec. 151 .. 371 Browne o. Gisborne, 2 Dowl. N. S. 963 274 Brugh v. Shanks, 5 Leigh, 598 $42 XXV111 TABLE OF CASES. Brumley v. State, 21 Tex. App. 222, 57 Am. Rep. 612 125 Bryan v. State, 74 Ga. 393 688 i?uford i). Com., 14 B. Mon. 24 428 Bulkeley v. Keteltas, 4 Sandf. 450, 6 N. Y. 384 194 Bullard v. Pearsall, 53 N. Y.-230 373, 758 Bulliner v. People, 95 111. 394 225, 228, 289 Bullock v. Bullock, 122 Mass. 3 864 v. Koon, 9Cow.30 789 Bunch v. Hurst, 3 Desaus. 273, 5 Am. Dec. 551 44 Bundy v. Cunningham, 107 Ind. 360 259 v. Hyde, 50 N. H. 116 266 Burchet v. Burchet, Wright (Ohio) 161. 849 Burden v. Pratt, 1 Tbomp. & C. 554 a39 Burdickt). Hunt, 43 Ind. 381 ..116,204,256,277,410 Burgamy v. State, 4 Tex. App. 572 173 Burger v. White, 2 Bos w. 92.... 159 Burgess v. Bennett, 20 Week. Rep. 720... 104 V.Com., 2 Va. Cas. 488 448 Burke v. Witherbee, 98 N. Y. 562 231 Burkhalter v. Edwards, 16 Ga.593, 60 Am. Dec. 744 370,373 Burley v. State, 1 Neb. 385 164 Burnham v. Hatfield, 5 Blackf. 21 204 Burns v. State. 49 Ala. 370 578,580 Burnswick v. Moore, 74 Ga. 409 260 Burrell v. State, 18 Tex. 713 559 Burrough c. Martin, 2 Campb. 112 97 Burrow v. State, 12 Ark. 65 708 Burrows v. Unwin. 3 Car. & P. 310 253 Burt v. Winona & St. P. R. Co., 31 Minn. 472 90 Burton v. Driggs, 87 U. S. 20 Wall. 134, 22 L. ed.302 91 V. March, 51 N. C. 409 469 v. Payne, 2 Car. & P. 520... 94 v. Plummer, 2 Ad. & El. 341.. .58, 97. 99 Bush v. Prosser, 11 N. Y.347 893 Bussard v. Levering, 19 U. S. 6 Wheat. 102. 5 L. ed. 215 79 Bussom v. Forsvth, 32 N. J. Eq. 2S5 863 Butler v. State, 3 McCord. L. 383 168 v. Watkins, 80 U. S. 13 Wall. 457, 20 L.ed.629 70 Byam v. Collins, 2 L. R. A. 129, 111 N. Y. 143. 890, 891 Byard v. Harkrider, 108 Ind. 376 259 Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440 281,412 Byrnes v. Byrnes, 102 N. Y. 5 798 Caballero's Succession, 24 La. Ann. 573. 863 Cady n. State, 44 Miss. 332 495 Cahen v. Continental L. Ins. Co., 69 N. Y. 308. 281 Cain v. State. 18 Tex. 387 493 Caldwell r. Bowen, 80 Mich. 382. _. 105 v. New Jersey S. B. Co., 47 N. Y. 282 157, 158, 320 v. State, 14 Tex. App. 171 404 Calhoun v. O'Neal, 53 111. 354.. 237 v. Thompson, 56 Ala. 166, 28 Am. Hep. 754 298 Calkins V. State, 14 Ohio St. 222 114 v. State, 18 Ohio St. 366, 98 Am. Dec. 121 219 Callahan v. State, 63 Ind. 198, 30 Am. Rep. 211 880 Callan v. Gaylord, 3 Watts. 321 94 v. Wilson, 127 U. S. 540, 32 L. ed. 223 10 Callaway v. McMillian, 11 Heisk. 557.... 98 Calvert v, Fitzgerald, Litt. Sel. Cas. 388 108 Camden v. Doremus, 44 U. S. 3 How. 515, 11 L. ed. 705 260 Cameron v. State, 14 Ala. 546, 48 Am. Dec. Ill 805,807, 809,840 Campbell v. Com., 84 Pa. 187.508, 524, 525, 893 v. Com., 2 Va. Cas. 314 521 v. People, 16 111. 17, 61 Am. Dec. 49 569 v. People, 109 111. 565, 50 Am. Rep. 621 614 v. Spottiswoode, 32 L. J. Q. B. 185. 894 v. State, 23 Ala. 44 288, 373 v. State, 11 Ga. £53 528 v. State, 38 Ark. 498 529 V. State, 109 111. 565 615 Cancemi v. People. 16 N. Y. 501. .600, 601, 607 Cannady v. Lvnch, 27 Minn. 435 288 Cannon, Be, 47 Mich. 482 932 Carico v. Com., 7 Bush, 124 573, 586 Carnes v. Piatt, 15 Abb. Pr. N. S. 338.... 414 Carney v. State, 79 Ala. 14 320 v. State, 118 Ind. 525 831 Carpenter v. Groff, 5 Serg. & R. 162 354 v. Nixon, 5 Hill, 260 280 v. People, 8 Barb. 603 820, 867 V. Ward, 30 N. Y. 243 342,370 Carrn. Gale, 3 Woodb. & M. 38 46 v. State, 14 Ga. 358 579 v. State, 23 Neb. 749... 582 Carroll v. Benicia, 40 Cal. 390 260 v. Com., 84 Pa. 107.... 507 D.Paul, 16 Mo. 241 189- v. People, 136 111. 463 470 v. Quynn, 13 Md. 379 476, 511 v. State, 23 Ala. 28 573, 579 Carson v. State, 50 Ala. 134 598, 601 Carter v. Bennett, 4 Fla. 284 260= V. Carter, 62 111. 439, 449 850 v. Ford Plate Glass Co., 85 Ind. 189 206 v. People, 2 Hill, 317 539 V. State, 2 Ind. 617 147 v. State, 46 Ga. 637 243 v. State, 63 Ala. 52 291 v. State, 82 Ala. 13 585 v. State, 12 Tex. 500, 62 Am. Dec. 539 635 v. St a te," 56 Ga." 463 """"""""" 640 Cartery's Estate, 56 Cal. 470. 110 Carver v. Carver, 97 Ind. 497 195 Gary v. Hotailing, 1 Hill, 311, 37 Am. Dec. 323 420,462,711 v. White, 59 N. Y. 339 317 Casat v. State, 40 Ark. 511 575 Case v. People, 76 N. Y. 242 20 v. Perew, 46 Hun, 57 13, 105 Casey v. People. 31 Hun, 158.. 426,642 v. State, 20 Neb. 138 771 Cass v. Bellows, 31 N. H. 501, 64 Am. Dec. 347 97 Castle v. State, 75 Ind. 146 436. Castleman v. Sherry, 42 Tex. 59 192 Castro v. lilies, 22 Tex. 5U3, 73 Am. Dec. 277 189 Catiin v. Underbill, 4 McLean, 199 101 Cato v. State, 9 Fla. 163 813 Caujolle v. Ferrie, 20 Barb. 177 137, 864 Caverno v. Jones, 61 N. H. 653 576 Cawdrv v. Higlev, Cro. Car. 270 883 Cavford's Case, 7 Me. 57 805, 807, 809, 840 Cesure v. State, 1 Tex. App. 19 208 Chaddoek o. Briggs, 13 Mass. 24S, 7 Am. Dec. 137 882,883 Chaffee v. Soldan. 5 Mich. 242 69 v. United States, 85 U. S. 18 Wall. 516, 21 L. ed. 908 98 Chahoon v. Com., 21 Gratt. 822 316 Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255.. 75 V. Smith, 1 Mo. 482 230 D.Vance, 51 Cal. 84 415 V. Wilson, 12 Vt. 491. . .296, 297, 300, 301 Chambers v. McGiveron, 33 Mo. 202 230 V. People, 105 111. 409 225, 346 v. People, 5 1)1.355 324 Champ v. Com., 2 Met. (Ky.) 17 371, 374 Chance v. Indianapolis & W. G. R. Co., 32 Ind. 472 116 TABLE OF CASES. XXIX Chandler v. Le Barron, 45 Me. 536. ...115, 118 V. State, 25 Fla. 728 408 Chapin v. Lapham. 20 Pick. 467 99 Chaplin v. Hartshorne, 6 Conn. 44 859 Chapman v. Brooks, 31 N. Y. 75 342, 370 15. Erie K. Co., 55 N. Y. 579 192 v. White, 8 Ves. Jr. 35 789 Chappel v. State, 7 Coldw. 92 686 Chappell it. Smith, 17 Ga. 68 281 v. State, 52 Ga. 359 404 Charles 15. Patch, 87 Mo. 450 230, 231 v. State.ll Ark. 389 813 Charlton v. Unis, 4 Gratt. 58 363 Charon v. Geo. W. Robv Lumber Co., 66 Mich. 68 231 Chaser. Breed, 5 Gray, 443 238 v. People, 40111.a52 252, 635, 036, 639, 645, 662 Chase v. State, 20 N. J. L. 218 .203, 255 Cheever v. Congdon, 34 Mich. 296 27 Cheney 15. Arnold, 18 Barb. 343 320, 864 Chesley v. Brown, 11 Me. 146. 16 Chester v. State, 1 Tex. App. 702 292 Chestnut v. Chestnut. 88 111. 548. 850 Chicago v. Greer. 76 U. S. 9 Wall. 726, 19 L. ed. 769 81 Chicago & E. I. R. Co. r. Holland, 122 111. 4(51. 259 Chicago & N. W. R. Co. 15. Fillmore, 57 111. 266 108 Chicago, B. & Q. R. Co. v. Riddle. 60 111. 535 108 Childs v. State, 55 Ala. 25 . . 374, 610 Chiniquy v. Catholic Bishop 'of Chi- cago, 41 111.148 172 Chittenden v. Evans, 41 111. 253 225 Choice v. State, 31 Ga. 424 621, 626 Chrisman v. Gregory, 4 B. Mon. 474 191 Chubb v. Flannagan, 6 Car. & P. 431.... 884 Chubbuck v. Cleveland, 37 Minn. 466 ... 932 Church v. Hubbart, 6 U. S. 2 (/ranch, 187, 2 L. ed. 249. 55 15. Milwaukee, 31 Wis. 512 123 Chute v. State, 19 Minn. 271 104 Cicely v. State, 13 Smedes & M. 21 12 440 Citizens State Bank v. Adams, 91 Ind. 280 258 City Bank of Brooklyn v. Dearborn, 20 N. V.246... 245 Claeknerv. State, 33 Ind. 412 734 Clapp 15. Devlin, 3 Jones & S. 170 886 Clare v. People, 9 Colo. 123. 551, 552 v. State, 30 Md. 164 203 Clark, Re, 9 Wend, 212 10 Clark i\ Com., 123 Pa. 55S 202 D. Dillon, 97 N. Y. 370 885 v. Fletcher. 1 A lien, 53 46 v. Hannibal & St. J. R. Co., 36 Mo. 202 231 v. Jones, 87 Ala, 474 346 v. Molyneaux, L. R. 3 Q. B. Div. 247 894 v. People, 2 Hun, 520 546 15. Rhodes, 2 II eisk. 206 219 U.State, 4 Humph. 254 164 v. State, 12 Ohio, 483. 40 Am. Dec. 481 432,636 15. State, 8 Humph. 671 448 15. State, 8 Tex. App. a50 635 15. State, 30 Tex. App. 402... . 748 15. Vorce, 19 Wend. 232 215 Clark Civil Twp. v. Brookshire, 114 Ind. 437 259 Clarke v. Dutcher,9 Cow."67i"I"II™ 18 v. Reese, 35Cal.89 361 15. State, 87 Ala. 71 347. 349 15. State, 78 Ala. 474 .347, 349,350 Clary r. State, 33 Ark. 561.... ...746, 753 Clayea v. Fen-is, 10 Vt. 112 155, 156 Clayton 15. State, 100 Ind. 204 206 Clear v. Reasor, 29 [owa, 327 850 Clem v. State, 33Ind. 418 ..399, 904 Clemens v. Patton, 9 Port. (Ala.i 289.... 98 Clements v. State, 21 Tex. App. 258 173 Cleveland v. Newson, 45 Mich. 62 529 v. State, 86 Ala. 2 585 Clifford v. Brooke, 13 Ves. Jr. 134 797 15. Richardson, 18 Vt. 620 481 Clifton 15. United States, 45 U. S. 4 How. 242, 11 L. ed. 957 41,221 Cline v. State, 43 Ohio St. 332 621 15. State, 43 Tex. 494 708 Clinton v. Englebrecht.SOU. S. 13 Wall. 434, 20 L. ed. 659 203 Clinton v. McKenzie, 5 Strobh. L. 36.... 326 Close v. Sam m, 27 Iowa, 503 180 Cobbett, Ex parte, 4 Jur. N. S. 145 274 Coble 15. State, 31 Ohio St. 100 208- Coburnu. Odeil, 30 N. H. 540 296,301 Cocheco Mfg. Co. v. Stratford, 51 N. H. 4*1 737 Cochran v. State, 7 Humph. 544 239 Codding 15. Wood, 112 Pa. 371 231 Codrington v. Codrington, 3 Swab. & T. 368 68 Coffee v. State, 3 Yerg. 283, 24 Am. Dec. 570 191 15. State, 25 Fla. 501 489, 494 Colli n r. Gephart, 18 Iowa, 256 253 15. Phoenix Ins. Co., 15 Pick. 291 ... 240 ». Vincent, 12 Cush. 98 99 Cokelvfl. State, 4 Iowa, 479 408 Coker r. State, 20 Ark. 53 206,594 Colbath r. State, 2 Tex. App. 391... .193, 444 Colbert 15. State. 1 Tex. App. 314 715 Cole 15. Com., 5 Gratt. 696. 208,327 v. Hebb, 7 Gill & J. 20 233 u. People, 2 Lans. 370 338 Cole's Trial, 7 Abb. Pr. N. S. 321.637 660,677 Colee 15. State, 75 Ind. 511 481 Coleman v. t torn., 25 Gratt. 865 288, 289 v. Com., 84Va. 1 819 V. People, 55 N. Y. 81, 58 N. Y. 555 66,77, 126, 197, 2ii7, 211, 328, 418, 712, 780 V. State, 44 Tex. 109 515 15. State, 59 Miss. 484 606 v. Tennessee, 97 U. S. 509, 24 L. ed. 1118 919 Collier v. Simpson, 4 Car. & P. 73 147 r. State, 20 Ark. 36.. 252 Collins v. Com., 12 Bush, 271 ....i52, 535 15. Rockwood, 64 How. Pr. 57. ..96, 100 Colt D. Sixth Ave. R. Co., 49 N. Y. 671.. 233 Columbus 15. Dahn. 36 Ind. .330 454 Coman t;. State, 4 Blackf. 241 81 Cominsr. Hetfleld, 12 Hun. 375. 357 Com. v. Abbott, 130 Mass. 472 215, 583 15. Andrews. 143 Mass. 23 116 15. Anthes, 5 Gray, 185 141 v. Bakeman, 131 Mass. 577, 41 Am. Hep.248 S47 15. Baker, 11 Phila. 631 625 15. Baldwin, 11 Gray, 197, 71 Am. Dec. 703 _. 774 15. Barlow. 97 Mass. 597 219 15. Barry, 124 Mass. 325 716 1). Blair, 126 Mass. 40 522 V. Blanding, 3 Pick. 304, 15 Am. Dec.214 388 v. Blood, 141 Mass. 571 ..700, 706 15. Bonner, 97 Mass. 587 352, 364 15. Bonner, 9 Met. 410 888 v. Bosworth, 22 Pick. 397 .509, 512, 515 15. Bowden, 9 Mass. 494 617 15. Bowers, 121 Mass. 45 851 15. Bradford, 126 Mass. 42 214 15. Brady, 5 Gray, 78 15. Briggs, 5 Piek. 429 240 15. Brooks, 9 (.raw 299. 512 15. Brown, 121 Mass. 69 147, 149 15. Bruce, 16 Phila. 510.. - 529 v. Burdick, 2 Pa. 164, 44 Am. Dee. 186 ---- 704 XXX TABLE OF CASES. Com. v. Burke, 12 Allen, 182 v. Burke, 16 Gray, 33 ._ v. liutland, 119 Mass. 317 V. Butts, 124 Mass. 449 v. Buzzell, 16 Pick. 160 v. Call, 21 Pick. 509, 32 Am. Dec. 284 209, 327, 701, v. Campbell. 7 Allen, 542 v. Carey, 2 Brewst, 4(14 290, 440, v. Casey, 11 Cush. 417, 59 Am. Dec. 150 v. Chabbock, 1 Mass. 144 v. Chapman. 13 Met. 68.. 882, v. Cherry, 2 Va. Cas. 20 V. Choate, 105 Mass. 451 -.-... 73. 212, 216, 688, 700, v. Clap, 4 Mass. 163, 3 Am. Dec. 212 v. Clark, 145 Mass. 251 . . v. Cleary, 8 L. R. A. 301, 135 Pa. 64 V. Cobb, 14 Grav, 57 435, V. Coe, 115 Mass. 481 110, 111, 153, 458. 700, 709, 714, 720, 780, v. Cohen, 12; Mass. 282 v. Collins, 138 Mass. 4*3 V. Cooper, 5 Allen, 495, 81 Am. Dec. 737 276 791 738 201 851 152 601 539 504 S9S 203 714 ss2 348 600 439 781 525 738 539 v. Cor lies, 3 Brewst. 575777." 906 V. Cornish, 6 Uiim. 249 788, 789 v. Costello, 12( t Mass. 1367 773 V. Costley, 118 Mass. 1 133, 436, 437, 439 v. Crawford, 8 Phila. 490 569 V. Crocker, 108 Mass. 4*,4 500, 501 v. Crozier, 1 Brewst. 349 625 v. Cuttee, 108 Mass. 285 491, 500, 501 v. Cullen, 111 Mass. 435 499 U. Culver, 126 Mass. 464 491 V. Uu rtis, 97 Mass. 574 504 v. Davis, 11 Pick. 4i2 67 v. Deacon, 10 Serg. & R. 125 920 v. Desmarteau, 16 Gray, 1 405 t'. Dillane, 11 Gray, 67 616 v. Donahoe, 133 Mass. 407 571 v. Dorsey, 103 Mass. 412 ....193, 444, 621 v. Dougherty, 1 Browne App. 20.. 621 r. Douglass, 5 Met. 241 798 r. Dowdican, 114 Mass. 237 481 v. Downing, 4 Gray, 29.197, 508, 514, 525 V. Drew, 19 Pick. 179 ..700, 702, 703, 708 v. Drew, 153 Mass. 588 705 v. Drum, 58 Pa. 9.. 572, 771 v. Duulop, Lewis, Crim. L. 394 625 V. Eastman, 1 Cush. 189, 48 Am. Dec. 596 82 212.218, 4627 m 71L 71477197 Vs 7 :'. 900 v. Eddy, 7 G ray, 583 424, 635 v. Eichelberger, 119 Pa. 254 706, 721 V. Elliot, 110 Mass. 104 512 v. Emmons. 98 Mass. 6 27 v. Parkin, 2 Pars. Sel. Eq.Cas. 43'.!. 674 v. Ferrigan, 44 Pa. 386 212, 700, 714 v. Fisher, 9 Phila. 594 706 V. Fitzpatrick, 1 L. R. A. 451, 121 Pa. 109 617 v. Flanagan, 7 Watts. & S. 415 405 V. Ford, 130 Mass. 64, 39 Am. Rep. 436 106 v. Freeth (Pa.) 6 Am. L. Reg. 400.. 678 v. Frev, 50 Pa. 245 706 v. Gallagher, 16 Gray, 21(1 738 v. Gardner, 11 Gray, 438 191, 405 v. Giles, 1 Gray, 466 67, 68 v. Gillespie, 7 Serg. & R. 479 171 i'. Goodwin, 14 Gray, 45, 122 Mass. 19 220,436,441 v. Gray, 150 Mass. 327 457 v. Gray, 101 Pa. 386, 47 Am. Rep. 733 465 v. Gray, 129 Mass. 474, 37 Am. Rep. 378 854 v. Green, 17 Mass. 515 2H0 D.Green, 1 Ashm. 289 441, 448 V. Green, 2 Pick. 380 832 Com. v. Grimes, 10 Gray, 470, 71 Am. Dec. 666 738 v. Gross, 1 Ashm. 281 191 v. Hackett, 2 Allen, 136 80, 122 r. Haggefty, Lewis, Crim. L. ■lie' _ 625 v. Hanlon73 Brews"t746i..777'*...7 498 r. Hard v, 2 Mass. 303 600,606 V. Harman, 4 Pa. 269 436, 546, 548 v. Harmon, 2 Gray, 289 888 v. Harris, 131 Mass. 336 606 V. Hart, 2 Brewst. 546 621, 624, 625 v. Harwood, 4 Gray, 41, 64 Am. Dec. 49 126 v. Haskell, 2 Brewst. 491, 4 Am. L. Rev. 240 652,661,673 v. Hawkins, 3 Gray, 463 190, 621, 624, 626, 627, 757 v. Hayes, 138 Mass. 186 483 v. Heath, 11 Gray, 303 635, 640 v. Henry, 22 Pa. 253 716 v. Hill, 11 Cush. 137 204, 410 v. Hill, 14 Mass. 207 289 V. Hills, 10 Cush. 530 290 v. Holmes, 127 Mass. 424. 34 Am. Rep. 391 476, 511, 515, 516 v. Holmes, 17 Mass. 336 882 v. Horton, 2 Grav, 354. 824, 851, 855 v. Howe, 9 Gray, 110.. 498 r. Hudson, 97 Mass. 565.. 445 (-. Hunt, 4 Met. Ill, 38 Am. Dec. 346. 719,901 v. Hussey, 111 Mass. 432.... 738 v. Hutchinson, 10 Mass. 225 291 u.Irwin, 8 Phila. 380 901 v. Jackson, 132 Mass. 16 73, 215 c. Jackson, 11 Bush, 679, 21 Am. Rep. 225 804, 807, 809 v. Jeffries, 7 Allen, 548, 83 Am. Dec. 713 81, 88,708 v. Jenkins, 76 Mass. 485 72 v. Johns, 6 Grav, 274.. 795 v. Johnson, 133 Pa. 293 735) V. Jones, 1 Leigh, 598. 193, 444, 448 v. Kenney, 12 Met. 235, 46 Am. Dec. 672... 501,502 v. Kimball, 24 Pick. 373. 35 Am. Dec. 326 39 ■V. King, 9 Cush. 284 ._ 740 v. Kinison, 4 Mass. 646 42 V. Knapp, 9 Pick. 496, 20 Am. Dec. 491 175,492,499 v. Lahey, 14 Gray, 91. . .824. 8:36, 851, 855 v. Lane, 113 Mass. 458, 18 Am. Rep. 509 804, 864 v. Larrabee, 99 Mass. 413 512 v. Lannan, 13 Allen, 563 349 v. Leach, 1 Mass. 59 729 o. Leonard, 140 Mass. 473, 54 Am. Rep. 485 440 v. Littlejohn, 15 Mass. 163.. 804, 805, 852 v. Locke, 114 Mass. 288 ._ 427 v. Luscomb, 130 Mass. 42 168 v. Lyden, 113 Mass. 452. 319 v. McCarthy, 119 Mass. a54 214 v. McDonald, 110 Mass. 405 813, 832 v. McGorty, 114 Mass. 299 335 v. McKie, 1 Gray, 61, 61 Am. Dec. 410 39,423,424 i'. M'Pike, 3 Cush. 181, 50 Am. Dec. 727 80, 125,536,543 v. Malone, 114 Mass. 295.... •_ ._ 626 V. Marsh, 10 Pick. 57 519, 521 v. Mash. 7 Met, 472 457 v. Mason, 105 Mass. 163 709, 720, 727 v. Matthews. 89 Ky. 287 534 l'. Mead, 12 Gray, 167, 71 Am. Dec. 741 204,410 v. Merrian, 14 Pick. 518, 25 Am. Dec. 420.. .214, 510, 824, 836, 853, 855 v. Merrill, 14 Gray, 418, 77 Am. Dec. :J30 238 TABLE OF CASES. XXXI Com. v. Messenger, 1 Bum. 273, 2 Am. Dec. 441 v. Miller, 3 Custa. 243 v. Minor, 88 Ky. 422. v. Moore (Pa.) 3 Crim. L. Mag. 839. v.Moore, 3 Pick. 194 v. Morgan, 107 Mass. 199 349, v. Morrell, 99 Mass. 542 B. Morrill, 8 Cush. 571 v. Mosier, 135 Pa. 221 v. Mosier, 4 Pa. 264 652, 660, 674, v. Mulatto Bob, 4 U. S. 4 Dall. 145, 1L. ed. 776 u. Mullen, 97 Mass. 545 v. Mullins, 2 Allen, 295 v. Murphy, 14 Mass. 388 v. Murray, 2 Ashm. 41 v. Murtagh, 1 Ashm. 272 .. .805, 807. v. Newell, 7 Mass. 247 v. Newton, 1 Grant, Cas. 454, v. Nichols, 114 Mass. 285, 19 Am. Rep. 346 349, 521, 836, 651, v. Norfolk County Ct. of Sess. 5 Mass. 435 B. Nott, 135 Mass. 269 v. O'Brien, 12 Allen, 183 v. O'Brien, 119 Mass. 342, 20 Am. Rep. 3^5 ....606, V. O'Brien, 2 Brewst. 566 v. Packard, 5 Gray, 101 v. Parker, 2 Pick. 550 v. Parker, 2 Cush. 212. 792, v. Perrier,3 Phi la. 229 v. Piatt, 11 Phila. 415 B. Pollard, 12 Met. 225. v. Pomeroy. 117 Mass. 143 638, 13. Porter, 10 Met. 263 13. Porter, 4 Gray, 423 13. Preece, 140 Mass. 276 v. Price. 10 Gray, 472, 71 Am. Dec. 60S 512, 516, 521, 700, 13. Purchase, 2 Pick. 525 13. Putnam, 1 Pick. 136. V. Ray, 69 Mass. 446 13. Regan, 105 Mass. 593 13. Richards, 18 Pick. 434 384. u. Ricketson, 5 Met. 412 13. Riggs, 14 Gray, 376, 77 Am. Dec. 333 13. Robinson, 146 Mass. 571 73, t3. Robinson, 1 Grav, 555 . 13. Roby, 12 Pick. 496 613. 614, 13. Roarers, 7 Met. 500. 41 Am. 1 > c. 458 6*5,637,650, 663, 668, 13. Rowe, 14 Grav, 47 39, 13. Ruddle, 142 Pa. 144 d. St. Clair, 1 Gratt. 556... v. Samuel, 19 Mass. 103 13. Sawtelle, 141 Mass. 140 13. Scott, 123 Mitss. 222 73, 483, v. Scott, 1 Pa. L. T. N. S. 221 13. Sego, 125 Mass. 210.. 13. Selfridge, Horrigan & T. Cas. on Self-defense ....198, 570, 573, v. Seybert, 4 Kulp, 4. v. Shaw, 4 Cush. 594, 50 Am. Dec. 813 13. ShawTPa.) 6 Crim." L. Mag. 245 " '. 13. Shedd. 7 Cush. 514 719, 900, 13. Shepard, 1 Allen, 575 211, 13. Shepherd, 6 Binn. 283, 6 Am. Dec. 449 v. Shurlock, 14 Phila. Leg. Int. 33. 13. Shurn, 145 Mass. 150 v. Simnson, 9 Met. 138 V. Smith, 119 Ma-s. 305 13. Smith, 12 Met. 238 v. Smith, 15 Phila. Leg. Int. 33 .... 13. Smith, 11 Allen, 253 13. SnelHng, 15 Pick. 321, 32 Mass. 337 67. v. Snow, 111 Mass. 411 45 207 42* 7115 824 882 49 Tin 348 678 191 349 290 823 243 K09 748 265 854 203 191 512 608 738 238 203 798 625 625 798 680 111 201 491 714 617 804 773 606 :•><; 158 173 771 521 618 763 Com.v. Sparks, 7 Allen, 534 286 13. Speer, 2 Va. Cas. 65 720 13. Starkweather, 10 Cush. 60 373 13. Stearns, 10 Met. 256 216 13. Stebbins. 8 Gray, 492 738 13. Stone, 4 Met. 43. 458, 700,714 1). Strieker, 1 Browne App. 47 857 13. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401 145, 147, 149, 769 13. Sullivan, 150 Mass. 315 352 13. Swinney, 1 Va. Cas. 146 7211 13. Taylor, 129 Pa. 534 202 13. Tavlcr, 5 Cush. 605 493, 499 13. Taylor, 5 Binn. 281 882 13. Tennev, 97 Mass. 50. 709 13. Thomas, 1 Va. Cas. 307.. 816 13. Thompson. 3 Dana, 301 79S 13. Thrasher, 11 Gray, 450 824. 855 13. Tinkham, 14 Gray, 12 13. Tolliver, 119 Mass. 312 348 V. Trimmer, 84 Pa. 69 617 V. Tuckermnn, 10 Grav, 173, 211, 214. 451, 462, 493, 495, 700, 714, 743 b. Tuey, 8 Cush. 1 440 13. Turner, 3 Met. 19 461 B. Tuttle, 12 Cush. 502 436, 439 B. Upricbard, 3 Gray, 434, 63 Am. Dec. 762 740 b. Walker, 108 Mass. 309 705 B.Wallace, 7 Gray, 222 39, 456 v. Wallace, 10 Grav, 221.. 719 0. Walton, 2 Brewst. 487 867, 872 v. Webster, 5 Cush. 295, 52 Am. Dec. 711 .191, 424, 435, 450, 474,546, 550, 554. 556, 597,598, 600, 601,604, 683 B. Weiss, 11 L. K. A. 530, 139 Pa. 247 449 V. Welsh, 4 Gray, 535 372 v. Wentz, 1 Ashm. 269 857 o. White, 8 Pick. 453 789 B. Whittemore, 11 Grav, 201 495 v. Williams, 2 Ashm. 69.... 243 r. Williams,6 Grav, 1 456 b. Williams. 105 Mass. 62... 483 v. Williard, 22 Pick. 476 Sfft v. Wilson. 1 Gray, 337 ....146. 149 V. Wood. 4 Gray, 11 67. 68 b. Wood, 11 Grav, 86 525 B. Work. 43 Phila. Lesr. Int. 57.901, 904 B. York, 9 Met. 93, 43 Am. Dec. 373 424 432 440 118 Compton "bV Wilder," 40" Ohio St. 136"-931, 935 Comstock B. Smith, 20 Mich. 338 70 Conger's Case. 4 City Hall Rec. 65 707 Coukey B. People, 1 Abb. App. Dec. 418 605 Connaghan v. People, S8 111. 460 431, 440 Connaughtv v. Slate, 1 Wis. 159, 60 Am. Dec. 370 f J04 Connecticut v. Bradish, 14 Mass. 296 83 Connecticut Mut. L. Ins. Co. b. Ellis, 89 111.516. 145, 147 Connecticut Mut. L. Ins.jCo. 13. Lathrop, 111 U. S. 612, 28 L. ed. 536 85 Conner's Case, 3Citv Hall Rec. 59 774 Connor b. Giles, 76 Me. 132 230 Connors v. People, 50 N. Y. 240 346, 351 Continental Ins. Co. b. Delpeuch, 82 Pa. 225 335 Conwav "state," 118 In"d"."483".".".".*.'.*.*.V369. 641 Cook 13. Cook, 32 N. J. Eq. 475 8.50 13. Corn, 1 Overt. 340 296, 297 B. Hart. 146 U. S. 183. 36 L. ed. 934. 938 B. People, 2 Thomp. & C. 404 401, 871, B80 B. State, 49 Miss. 9... 404 B. State, 11 Ga. 53, 56 Am. Dec. 416 805,840,852 Cooke B. Woodrow, 9 U. S. 5 Cranch, 13, 3L.ed.22 42 Cookham v. State, 5 W. Va. 510 136 Cooper t3. Barber. 24 Wend. 105 893 B. Blood, 2 Wis. 62 258 V. Cooper, 10 La. 249, 252 850 X.XX11 TABLE OF CASES. Cooper v. Gibbons, 3 Campb. 363 221 V. Lawson, 8 Ad. & El. 746.. 894 v. State, 120 lnd. 377 198, 244, 251 v. State, 53 Miss. 383 481 Coote v. Bank of United States, 3 Crancb, C. C. 50 46 Copeland v. Koontz, 125 lnd. 126 198 r. State, 7 Humph. 479 239,240 Copperman v. People, 1 Hun. 15 -. 700,712,714,735 Corbett v. Brown, 8 Bin?. 33 240 Corley v. State, 50 Ark. 305 401 Cornelius v. Com., 15 B. Mon. 539 580 Corning v. Ashley, 4'Deni<>. 354... 100 Cornman v. Eastern Counties R. Co., 4 Hurlst. & N. 784 233 Corcoran v. Boston & A. R. Co., 133 Mass. 509 233 Corson v. Corson, 44 N. H. 587 75 Cortlandt County Supt. of Poor v. Her- kimer County Supt. of Poor, 44N.Y 22 454 Costello v. Crowell, 133 Mass. &52._ 98.104,111,781 Costelo v. Crowell, 139 Mass. 590 Ill Costly v. State, 19 Ga. 614 252 Cotton v. State, 87 Ala. 103 349 V. State, 31 Miss. 504 569 V. Timer, 45 Ala. 378, 6 Am. Rep. 703 25 Cottrilli;. Myrick, 12 Me. 222.. 481 Couch v. Charlotte, C. & A. R. Co., 22 S. C. 557 159 v. State. 63 Ala. 103 ._ 255 Coughlin v. People, 18 111. 266, 68 Am. Dec. 541 229 Coulter v. American Merchants D. Exp. Co., 56 N. Y. 588 373 D.Stuart. 2 Yerg. 225 797 Course v. Stead, 4 U. S. 4 Dall. 22, 1 L. cd.. 724 56 Coveney r. Tannahiii." i" Hill" ~33.7".7.~299~, 316 Cowan v. State. 22 Neb. 520 7m Co wen v. People, 14 111.348 706, 710 Cowley v. People, 83 N. Y. 464, 38 Am. Rep. 464 152, 153, 350, 665 Cox v. Coleridge, 1 Barn. & C. 37 ..257 v. Eayres, 55 Vt. 24 373, 374 V. People, 109 TU. 457.. 190 v. People. 80 N. Y. 500 206, 405, 730 V. State, 64 Ga. 374 160 Toy, Ex parte, 32 Fed. Rep. 911 931, 9a5 Coyle v. Com., 1(30 Pa. 573. 45 Am. Rep. 397 693 Cozzens v. Higgins, 1 Abb. A pp. Dec. 451 .152, 153 Craddock v. Craddock, 3 Lift. (Kv.) 78.. 416 Craft v. State, 3 Kan. 450 771 Craft'sApp., 42Conn.l46 98 Crafts v. Boston. 109 Mas-. 521 232 Craig v. Grant, 6 Mich. 453 373 Crandalli\People,2Lans.309 .s;n. -;:;, s;i,-:t Crane v. Morris, 31 U. S. 6 Pet. 598, 8 L. ed. 514 35 Crary v. Sprague, 12 Wend. 51, 27 Am. Dec.110 382, 384, 387 Craven v. Smith, L. R. 4 Exch. 146 400 Crawford, Re, 113 N. Y. 560 258 v. Elliott, 1 Houst. (Del.) 465 22 ». State, 12 Ga. 112 328 Creamer r. State. -U Tex. 174 283 Creek v. State, 24 lnd. 151 573 Crerar-u. Sodo, 1 Mood. & M. 85 156 Cribbs v. State, 86 Ala. 613 57."), 584 Crichton v. People, 6 Park. Crim. Rep. 363.. 404 Crisp V. Anderson. 1 Stark. 35 221 Crockett v. State, 52 Wis. 214 206 ( rogban v. State. 22 Wis. 444 ( ronan v. Roberts, 65 Ga. 678 370 C.-onkhite v. Dickerson, 51 Mich. 178 ... 334 Crookshank v. Kellogg, 8 Blackf , 256 . . 195 Crosby v. Berger, 11 Paige, 377 316 Cross v. Bartholomew, 42 Vt. 206 103 v. People, 47 111. 152, 95 Am. Dec. 474 249 v. State. 68 Ala 476 183, 185, 248 Crosswell v. People, 13 Mich. 427, 433, 87 Am. Dec. 774 831 Crouch r. Eveleth, 15 Mass. 305 23 Crowe, He, 1 Chitty, 214 257 Crowell v. Western Reserve Bank, 3 Ohio St. 406 321 Croy v. State, 32 lnd. 384 252 Crozier v. People, 1 Park. Crim. Rep. 457 854 Cruger v. Hudson R. Co., 12 N. Y. 199 255 Culhane t;. New York Cent. & H. R. R. CO..60N. Y.136 231 Cullen v. Com.. 24 Gratt. 624 306, 310 Cummingsi - . Taylor, 24 Minn. 429 335 Cunningtiam v. Hudson River Bank, 21 Wend. 557 481 v. State, 56 Miss. 269, 21 Am. Rep. 360 26, 6a5, 639, 642, 662 v. State, 73 Ala. 51. 878 Curry v. Com., 2 Bush, 67. 626 Curtis v. Chicago & N. W. R. Co., 18 Wis. 312 __ 481 r. Jackson, 13 Mass. 507 240 v. State,6Coldw. 9 733 Cuyler v. McCartney, 40 N. Y. 221... 901, 904 D. Dacey v. People, 116 111. 555 426, 645 Da Costa v. Jones, Cowp. 729 ...74, 75 Daggers v. Van Dyck, 37 N. J. Eq. 130.. 5 D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. Rep. 777, note 854 Dahmer v. State, 56 Miss. 789 142 Dailey v. Dailey, Wright (Ohio) 514, 650 v. Grimes, 27 Md. 440 157 Dainese v. Allen, 14 Abb. Pr. N. S. 363... 83 Dainsi'. State, 2 Humph. 439 191 Dale v. State, 10 Yerg. 551 191 Dalton Divorce Case (Mass.) May, 1856. 548 Daly v. Maguire, 6 Blackf. 137 153 Dana v. Kemble, 19 Pick. 112 83 v. Tucker. 4 Johns. 487 206 Danforth v. Reynolds, 1 Vt. 265.. 56 Daniel v. Prather, 1 Bibb, 484 240 c. State, 65 Ga. 200 136 Danielson v. Dyckman, 26 Mich. 109 ... 156 Danner v. State, 54 Ala. 127, 25 Am. Rep. 662.. 21 Darby v. Ouseley, 1 Hurlst. & N. 12 147 Darland v. Kosencrans, 56 Iowa, 122 159 Darling v. Westmoreland, 52 N. H. 401, 108 266 Dairy v. People, 10 N. Y. 136 191 Daver. State, 22 Ala. 23 156 Davenport r. State. 38 Ga. 184 174 Davenport Wool. M. Co. v. Neinstedt, 81Iowa,226 85 Davidson v. De Lallande, 12 La. Ann. 826 325 v. People. 4 Colo. 145 ...581, 594 V. State, 39 Tex. 129 290 Davie v. Briggs, 97 U. S. 028, 24 L. ed. 1086 22,23 Davis v. Chapman, 6 Ad. & El. 767 68 v. Duncan, L. R. 9 C. P. 396 894 v. Field. .V, Vt. 420.. 104, 107 v. Foster. 68 lnd. 258.. 609 v. Franke. 33 Gratt. 413 610 v. Fulton, :s_' Wis. dot 258 v. Hardy, 76 lnd. 272.. 187 r. Liberty & C. G. R. Co., 84 lnd. 36 258 v. People, 114 111. 86 440 v. People. 1 Park. Crim. Rep. 447 . 750 V. Peveler, 65 Mo. 189 414 v. Ruff, 1 Cheves, L. 17, 34 Am. Dec. 584 883 TABLE OF GASES. XXX111 Davis v. State, 38 Md. 15 145 v. State, 35 In-1. 498,9 Am. Rep. 760 253 V. State, 46 Ala. 80 203 V. State, 17 Ala. 354 353 V. State, 15 Tex. App. 594 483 v. State, 2 Tex. App. 588 493 v. State, 74 Ga. 869.. 771 v. Walter, 70 Iowa, 465 485 Davison, Be, 21 Fed. Rep. 618 917 Davison v. People, 90 111. 221 573, 758 Dawson v. State, 16 Ind. 438 626 Day v. Bream, 2 Mood. & R. 54 884 v.Moore, 13 Gray, 522 157 v. State, 63 Ga. 669 694 D'Ayrolles r. Howard, 3 Burr. 1385 240 Dayton V. Adkisson, 4 L. It. A. 488, 45 N. J. Eq.603 863, 865 Dean v. Com., 32Gratt. 912 546. 771 Dear v. Knight, 1 Fost. \- F. 433 371 Dearman r. State, 71 Ala. 351. 375, 766 Deathridge v. State, 1 Sneed, 75 496 Deaveru. Rice, 25 N. C. 280 ....43, 44 Debaun, Be (Canada) 11 Crim. L. Mag. 47. .. 940 Deere v. Plant, 42 Mo. GO 230 Deerins v. Metcalf , 74 N. Y. 501 224,295 De Fries v. Da vies, 7 Car. & P. 112 887 DeGroat c. People. 39 Mich. 124... 839 DeHart v. Etnire, 121 Ind. 244 206 Deig v. Morehead, 110 Ind. 451 258 De Jarnette v. Com., 75 Va. 867 637, 663 DeLane v. Moore, 55 U. S. 14 How. 253, 14 L. ed. 409 42 Delaney v. Erickson, 10 Neb. 492 89 Delany'r. People, 10 Mich. 241 839 DeLibellis Famosis, 5 Coke, 125a 884 Delk D. State, 3 Head. 79 229 Delphi v. Lowery, 74 Ind. 520 260 Dempsey v. State, 3 Tex. App. 429 14!) Den v. Vancleve, 4 Wash. C. C. 263 25 Dean v. Driver, 1 N.J. L. 160 276 Dennett r. Dow, 17 Me. 19 :i72 Denny v. Williams,5 Allen, 4 238 Densmore v. State, 67 Ind. 306 . . . .192, 436, 437 Derby v. Derby, 21 N. J. Eq. 36 Detroit & M. R. Co. v. Van Steinburg, 17 Mieh. 99 156, 231 Dick v. State, 30 Miss. 593 504 Dickenson v. Coulter, 45 Ind. 445 358 Dickerson v. State, 48 Wis. 288.. 357 Dickey v. Maine Teleg. Co., 43 Me. 492.. 232 v. State, 21 Tex. App. 430 831 Dickinson v. Breeden, 25 111. 186 43, 44 Dietrich v. Baltimore & H. S. R. Co., 58 Md.347.. 108 Dignowitty v. State, 17 Tex. 530, 67 Am. Dec. 670 726 Dill v. State, 1 Tex. App. 278 281 v. State, 25 Ala. 15 569 V. State, 6 Tex. App. 113 746 Dilleber v. Home Ins. Co., 69 N. Y. 256.. 710 Dillin v. People. 8 Mieh. 357 127, 414 Dillinjjham r. State. 5 Ohio St. 280 708 Dimmig, Exparte, 71 Cal. 165 943 Dinah v. State, 39 Ala. 359. 496 Dinwiddie i\ State, 103 Ind. 101 249 Disque v. State, 49 N.J. L. 249 347 Distin r. Rose, 69 N. Y. 122 886 District of Columbia v. Armes, 107 U. S. 519,27 L. ed. 618 286 Dixon v. State. 13 Fla. 6:36 495, 496 Dobbins v. State, 14 Ohio St. 493 616 Dodge v. Brattain, Meigs, 84 536 Dodge v. Gaylord, 53 Ind. 365 195 v. State, 34 N. J. L. 45.5 798 Doe v. Arkwright, 5 ( !ar. & P. 575 80 v. Broad, 2Seott, N. R. 685 68 v. Flanagan, I Ga. 538 22, 23 V. Philips, 6T. R. 597 r,s v. Ross, 7 Mees. & W. 102 81 v. Sisson, 12 East, 63 70 w.Tyler, 6 Bing. 561 245 C Doe v. Vardill, 5 Barn. & C. 438 863 Dominges v. State, 7 Smedes & M. 475, 45 Am. Dec. 315 163,379 Don's Estate. 4 Drew. 197 862 Donahue v. O'Conner, 13 Jones & S. 297. 38 Doncaster v. Day, 3 Taunt. 262 356, 358 Donley v. Camp, 22 Ala. 659 258 Don Moran v. People, 2.5 Mich. .356, 12 Am. Rep. 283 815 Donnall's Case, Frazier, 171 321 Donnel v. United States, 1 Morris (Iowa) 141.39 Am. Dec. 457 171, 173 Donnellan v. Com., 7 Bush, 676 448 Donnelly v. State. 26 N. J. L. 463 ....332, 440, 501, 502, 539, 536, 539, 540 Donohue v. People, 56 \. V. 211 68 Dooly v. Jinnings, 6 Mo. 61 231 Duo Woon. Be, IS Fed. Hep. 898 943, 944 Doran v. Mullen, 78 111. 343 330 U.Smith, 49 Vt. 353.. 631 Dorman v. State, 56 Ind. 454 13 Dove v. State, 3 Heisk. 348. 26,635, 638, 639, 674 Dow's Case. 18 Pa. 37 931 Dowdy v. Com., 9 Gratt. 737, 00 Am. Dec. 314 720 Dowling v. Dowling, 10 Ir. L. Rep. 336.. 78 Downer v. Baxter,*! Vt. 467 206 Downiug v. Rugar, 21 Wend. 178, 34 Am. Dec. 223 281 Doyle v. Jessup, 39 111. 460 606 v. Mulren, 7 Abb. Pr. N. S. 258 .... 248 v. State. 17 Ohio, 222 203,255 Doyley v. Roberts. 3 Bing. N. C. 835.... 883 lazier v. Jerman. 30 Mo. 216, 220 157, 260, 32S Draper v. Draper, 68 Hi. 17 289 V. State. 4 Baxt. 246 249, 758 Drayton r. Wells, 1 Nott & McC. 409, 9 Am. Dec. 718 354 Drew v. Andrews. 8 Hun, 23 228 r. State, 124 Ind. 9 251,377 Ducher r. state, 18 Ohio, 308... .7-50, 751 Duchess of Kingston's Case, 20 How. St. Tr. 355... 57, 805, 806, 809 Duebbe v. State. 1 Tex. App. 159... 448 Dufresne v. Weise, 46 Wis. 290 . 361 Duffy v. Masterson. 44 N. V. 5,57 250 ». People, 26 x. Y. 588 189 Dugan v. Mahoney, 11 Allen, 573 104 Dugau, Be, 2 Low. Dec. 367 930,933 Dukes V. State, 11 Ind. 557, 71 Am. Dec. 370 ...581,594 Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241 804 Duncan v. McCullougb, 4 Serjr. & R. 480 319 v. Seeley, 34 Mich. 369 104 v. State, 49 Ark. 543.... 569 Dunlap v. Richardson, 63 Miss. 447 374 v. State, 9 Tex. App. 179 &56 Dunlop v. Higgins, 1 H. L. Cas. 381 94 V. Patterson. 5 Cow. 243 224, 295 Dunn v. Com.. 6 Pa. 384 165 V. Dunnaker, 87 Mo. 597.. 373 v. James, 62 How. Pr. 307 100 v. People, 109 111.635.... .100,243,431.439,663 V. People, 29 N. Y. 523, 86 Am. Dec. 319 159,224,394, 417 V. Sin >wden, 32 L. J. Ch. 104 23 V. State, 2 Ark. 229, 35 Am. Dec. 54 208,209,337, 576 V. State, 70 Ind. 47 615, 616 l'. State, 45 Ohio St. 249. 831 Dunning v. Roberts, 35 Barb. 471 94 Dupree v. State, 33 Ala. 380, 73 Am. Dec. 433 . 569, 57-;, 576, 594 Durant u.Durant, 1 Hagg. Eocl. Rep. 767 s:,i Durkee v. Vermont Cent. R. Co., 29 Vt. 137 ..83,89, 93,94 Durnell v. Sowden, 5 Utah, 216 116 Durnl'ord v. Clark, 1 Mart.. 0. 8. 202 ... 325 Durreti v. state, 62 Ala. 441 189 XXXI V TABLE OF CASES. 70 Durst v. Masters, L. R. 1 Prob. Div. 373. ].-,•' if,.) Dutell v. State, 4 G. Greene. 1SS "."\sm\ 255 Dutteuhoier v. State, 34 Ohio St. 91,38 _ Am. Rep. 362 352 Duvall v. Darby, 38 Pa. 56 321 Dwight v. Brown, 9 Conn. 83.. 78 15. Germania L. Ins. Co., 103 N. Y. _ 341, 57 Am. Rep. 729 231 Dynes v. Hoover, 61 U. S. 20 How. 65, 15 L. ed. 830. 909, 919 E. Eames v. Eames, 41 N. H. 177 27 Earll v. People, 73 111. 329 261 Early v. Smith, 12 Ir. C. L. Rep. 35". 68 Eason v. Chapman, 21 111. 33. . . " " 3ttf Eastman v. Crosby, 8 Allen, 206 " " 53 Eastwood v. Holmes, 1 Post. & F. 349 894 v. People, 3 Park. Crim. Rep. 25 -- 204,206 Eaton v. Com., 6 Binn. 447 203 v. New England Teleg. Co., 68 Me. 63 Eborn v. Zimpelman, 47 Tex."503,26 I'm". Rep. 315 153 Eddy v. Gray, 4 Allen, 435 " """ 861 Edgar v. State, 43 Ala. 48. 578 580 Edgerly v. Emerson, 23 N. H. 555 258 Edington v. Etna L. Ins. Co., 77 N. Y. 564 „■■■•••••"■ -...317, 318 v. Mutual L. Ins. Co., 67 N. Y. 185 281 Edmonds »j. Foster, 45 L. J. M. C. 41 221 Edmonston's Case, 1 Scotch L. Rep. 107 501 Edwards r. Currier, 43 Me. 474 .. 455 v. State, 47 Miss. 581 ... 594 Egbert v. Egbert, 78 Pa. 328 "5 Eggler i!. People, 56 N. Y.642... 192, 588, 607 Eggspieller v. Nockles, 58 Iowa, 649 159 Ehlert v. State, 93 Ind. 76. it,7 Eighmy v. People, 79 N. Y. 546 ... 160, 165 Elam v. State, 25 Ala. 56 14>> Eldridge v. State. 27 Fla. 162 " 897 Eliot c. Eliot, 1 Hagg. Consist. Rep. 302 854 EUicott v. Pearl, 35 U. S. 10 Pet. 412, 9 L. ed. 475 371 Elliott v. Dycke, 78 Ala. 150. . . " 97 v. Peirsol, 26 V. S. 1 Pet. 328, 7 L. ed. 164 _ 260 V. Van Buren, 33 Mich. 49. 20 Am. Rep. 668 48i Elwood v. Deitendorf, 5 Barb. 398 260 Emerson v. State, 43 Ark. 372 .. 616 v. Sturgeon, 18 Mo. 170.. " 231 Emery's Case, 107 Mass. 172 305, 307, 308 Emig v. Diehl, 76 Pa. a59.. . a54 Emmons v. Westfield Bank, 97 Mass. 243 35 Empire Transp. Co. v. Steele. 70 Pa. 188 43 Engleman v. State, 2 Ind. 91, 52 Am. Dec. „ 494 599 733 Ennis v. Smith, 55 U. S. 14 How. 400, 14 L. ed. 472 55 Epps v. State, 102 Ind. 539 ... 149 v. State. 19 Ga. 102. 'mil Erben v. Lorillard, 19 N. Y. 299, 302 418' 419 Erwin v. State, 29 Ohio St. 186 573' 574 v. State, 10 Tex. App. 700 642 Estep v. Wattrous, 45 Ind. 140 252 Estes v. State, 55 Ga. 30. 131 404. 621 626 Evans v. Evans, 1 Hagg. Consist. Rep. 105 476, 510 V. Evans, 41 Cal. 103 849 v. State, 62 Ala. 6 "" 584 v. State, 80 Ala. 4... . "744 V. Rees, 12 Ad. & El. 55 266 Evansville & C. S. L. R. Co. v. Cochran, 10 Ind. 560 180 Everingham v. Roundell, 2 Mood. & R. 138 si Evey v. Smith, 18 Ind. 461 260 Eyler v. State, 71 Ind. 49 831 F. Fahay v. State, 25 Conn. 205 45 Fahnestock v. State, 23 Ind. 231 448 Fain v. Com., 78 Ky. 183. 39 Am. Rep. 213 637 Fairman v. Ives, 1 Dowl. & R. 255 888 Falk r. People, 42 111. 331 239,241 Fanning r. State, 14 Mo. 386 . 29 Farez, Re, 7 Blatchf . 345 932, 933", 941 Farkas v. State, 60 Miss. 847 357 Farr v. Payne, 40 Vt. 615 27 v. Thompson, Cheves, L. 37. 370 Farrant v. Olmius, 3 Barn. & Aid. 692 240 Farrell v. Brennan, 32 Mo. 328, 82 Am Dec. 137 25 v. State, 45 Ind. 371. 408 Farrer v. State, 2 Ohio St. 54 77 Farris v. Com., 14 Bush. 362 570, 572" 758 Faulk v. State. 52 Ala. 415 546 Fay v. Com., 28 Gratt. 912. 7,8- Felix v. State, 18 Ala. 720 ... 601 Fennell v. Tait, 1 Cromp. M. & R. 584"""" 274 Fenno v. Weston, 31 Vt. 345 501 Fenton v. Livingstone, 5 Jur. N. S. 1183 865 V. Reed, 4 Johns. 52, 4 Am. Dec. 244 809 Ferguson v. Ferguson, 3 Sandf. 307 850 v. Hubbell, 97 N. Y. 507 771 v. State, 49 Ind. 33, 35 ..183, 185, 245, 594 v. Thacher, 79 Mo. 511 70 Feriter v. State, 33 Ind. 283 260 Ferneaux v. Hutchins, 2 Cowp. 807 "" 70 Ferney r. Hallacher, 8 Serg. & R. 159". 805, 840 Fero v. Ruscoe, 4 N. Y. 162. . 888 892 Ferrell v. State, 43 Tex. 503 193' 444 Ferrill v. Simpson, 8 Pick. 359 . * 206. Fetter, Be, 23 N. J. L. 311, 57 Am. Dec.loO 930 Field v. Boynton, Si Ga. 239 .. . 98 v. Thompson, 119 Mass. 151 108 Fielder v. Fielder, 2 Hagg. Consist. Rep". 197, 4 Eng. Eccl. Rep. 527 ...„. 864 Fields v. State, 47 Ala. 603, 11 Am. Rep 771 598 v. Wyoming, 1 Wyo. 78" 217 Finch v. Bergins, 89 Ind. 360 187," 188 195 Find ley v. State, 5 Blackf. 576 ' 258 Finley, Ex parte, 66 Cal. 'i64 "" 773 Finley v. State, 61 Ala. 201 203 -'55 Finn v. Com., 5 Rand. (Va.) 701 354' 387 Finnegan v. State, 57 Ga. 427 ' 203 First Baptist Church i\ Brooklyn F. Ins" Co., 28 N. Y. 153 342 370 First Nat. Bank v. Jones, 88 U. S 21 Wall. 325, 22 L. ed. 542.. 451 v. First Nat. Bank, 114 Pa.l ""' 106 Fisher v. People, 23 111. 293... 139, 635, '636, 673 v. Ronalds, 16 Eng. L. & Eq. 417 296 Fitzgerald v. Pendergast, 114 Mass. 368 " ~69 v. State, 4 Wis. 395 " 203 Fitzgerrold v. People, 37 N. Y. 413""!"!! Fitzhugh"i\ State! 13 Lea." 258 . . " 4 ' 240' 594 Flanagan v. People, 52 N. Y 467, 11 Am ' Rep. 731. ...636, 638,642,655, 674', 678 Flanagin v. State, 25 Ark. 92 ->89 495 Flanders v. Groff, 25 Hun. 553 '886 Flanigan v. People, 86 N. Y. 554, 40" Am" Rep. 556 194 444 (505 Fleet v. Hollenkemp, 13 B. Mon". 219 ' 158 FlemmgtJ. People, 27 N. Y. 329 """ 811 Flon v. St. Louis. 3 Mo. App. 231 "" 031 Flower v. State, 39 Ark.209 J»« Floyd v. Mintsey, 5 Rich. L.361" 43 ^ v. Wallace, 31 Ga. 668 363 Flynn v. Coffee, 12 Allen. 133 23 v. Murphy, 2 E. D. Smith, 378 417 Folsom v. Brawn, 25 N. H. 122 w< Foot v. Bentley, 44 N. Y. 166, 4Am."Re"p". O** QQ CI v. HunMns, 98 Mase/523 - .! 363 Foote v. Beecher, 78 N. Y. 158 419 Forbes 0, Waller, 25 N. Y. 430 4A4 Forbingu. Weber, 99 Ind. 5S8 %0 TABLE OF CASES. XXXV Ford v. Ford, 7 Humph. 92 377 v. Jones, 02 Barb. 484. 606 V. Xiles, 1 Hill, 300 320, 327 c. State, 71 Ala. 385 .38, 454, 638, 659, 663 Fordyce r. McCants. 55 Ark. 509... 258 Forrest v. Forrest, 25 N. Y. 510 245 v. Forrest, 6 Duer, 102 361 o. Kissam, 7 Hill, 465 356, 357 Fortenberrv v. State, 55 Miss. 403. - 569 Fun Scott Coal A: Min. Co. v. Sweeney, 15 Kan. 244 233 Fosgate v. Herkimer Mfg. & H. Co., 12 Barb. 353.. 137 Foster v. Hall, 12 Pick, 89, 22 Am. Dec. 4iiii 281 o. People, SON. Y. 609 451 v. People, is Mlch.366. 518 v. State, 8 Tex. App. 248.. 125 V. State, 1 Tex. App. 531 173 v. State, 35 Tex. App. 544 017 Foster's Will, Re, 34 Mich. 21. 153 Fouts 0. Stat.'. 8 Ohio St. 98. 191 V. State. 4 G. Greene, 500.. 44S, 678 Fowler, Re, 18 Blatebf. 437, 4 Fed. Rep. 303 927 v. State, .85 Ind. 538 196 Fowles v. Bowen, 30 N. Y. 22 892 Fox v. Clifton, 6 Bing. 354. 68 v. State, 3 Tex. App. 329, 30 Am. Rep. 144 905 V. Territory, 2 Wash. Terr. 297... 288 Frain r. State, 40 Ga. 529 495 Fralieh v. People, 65 Barb. 48.... 259, 346, 501 Fralick v. Presley, 29 Ala. 457, 65 Am. Dec. 413 -.-- 320 Francis' Case, 4 City Hall Rec. 12 797 Frank v. State, 39 Miss. 705 495 Franklin r. State, 29 Ala. 14 766 Frazer v. McCloskev, 60 N. Y. 337, 19 Am. Rep. 193..' - v. People, 54 Barb. 300 470, 510-512 Freeman v. Freeman, 31 Wis. 235... 649, B50 v. People, 4 Denio, 9. 47 Am. Dec. 216. .636, 652, 660, 074, 077, 078 French r. State, 12 Ind. 070, 74 Am. Dec. 229 683 Fresh v. Gilson, 41 U. S. 16 Pet. 327, 10 L. ed. 982 28. 42 Friend v. Hamill. 34 Md. 298 462 Friendly v. Lee, 20 Or. 202. 105 Friery v. People, 5+ Barb. 319.... 327. 621, 626 Fries v. Brugler, 12 N. J. L. 91, 21 Am. Dec. 52 300, 361 Frith v. Sprague, 14 Mass. 455 53 Fry v. Com., 82 Va. 334 23S Fuller ». Smith, 74 Ga. 835 360 v. State, 1 Blackf. 03 405 r. State. 48 Ala. 273... 469 Fulton r. Staff ord, 2 Wend. 483 325 Funston v. Chicago, R. I. & P. R. Co., 61 Iowa, 4o2 4*1 Furst v. Second Ave. R. Co., 72 N. Y. 547 418 Gaddy v. McCleave, 59 111. 183 201 Gadsby v. Dyer, 91 N. C. 313... 373 Gaffney v. People, 50 N. Y. 410 362 Gagahau v. People, 1 Park. Crim. Rep. 378 806 Gagg v. Vetter, 41 Ind. 22S, 13 Am. Rep. 322 180 Gainer v. Com., .50 Pa. 319 ....157, 328 Galbreath v. Eichelberger, 3 Yeates, 515 301 Gale v. People, 26 Mich. 157 340 Galena & C. U. R. Co. v. Fay, 16 111. 558, 63 Am. Dec. 323 363 Gallagher r. State, in Tex. App. 409.... 13 v. State, 101 Ind. 411... '... 128 Gallagher v. People, 120 111. 179 142 r. state, 3 Minn. 270 509 Gandolfo v. State, 11 Ohio St. 114.... 009-011 Gardner r. Gardner. 22 Wend. 526, 34 Am. Dec. 340 25 o. Gardner, 2 Gray, 434 69 Garfield v. State, 74 Ind. 60 187, 440 Garlitz r. State, 71 Md. 293 185 Garmire r. State, l'J4 Ind. 444 773 Garner v. Green, 8 Ala. 90 27 v. State, 38 Fla. 113 577,578 Garrat v. Garrat. 4 Yeates, 244 69 Gaskill v. Skene, 14 Q. B. 664 • 84 Gass v. Stinson, 2 Sumn. 610 824 People, 14 111.433 498 Gathercole r. Miall, 15 Mees. & W. 319.. 884 Gazley v. State. 17 Tex. App. 267 831 Gebbart v. Burkett.57 Ind. 378.. 358 Gehrke r. State, 13 Tex. 508.. 147, 405 Genet ». Mitchell, 7 Johns. 130 893- George r. Pilcher, 28 Gratt. 299 158 Georgia Cent. R. Co. v. Coggin, 73 Ga. 6S9 27 Georgia M. Mut. L. Ins. Co. v. Gibson, 52 Ga. 7 327 '.'.'.'. '.'.'.'. 771 Goode v. State, 2 Tex. App. 520 173 r. State, 70 Ga. 752... 017 Goodhue r. People. 94 111. 37.. 401 Goodman r. State, 1 Meigs, 195 163, 164 Goodnow ». Hill, 125 Mass. 589 414 Goodrich v. Weston, 102 Mass. 302, 3 Am. Rep. 409 80 Goodwin v. State, 96 Ind. 550, 551, 560, 4 Crim. L. Mas- 505 445, 575, 011 Gordon v. Com., 92 Pa. 210, 37 Am. Rep. 672 256 v. People. 33 N. Y. -501 143, 447, 503 D. State, 3 Iowa, 410.. 599 G( ird< »n's Case, 2 Maule & S. 582 2i 4 Gorman c. Sutton, 32 Pa. 247 Goss r. Turner, 21 Vt. 437 155, 156 Gould v. Crawford, 2 Pa. 89. 288 v. Norfolk LeadCo.,9 Cush.:i>s, 57 Am. Dec. 50 '. 27 Goyernor v. Shelby, 2 Blackf. 26 195 Gower o. Emery, 18 Me. 83... 281 Grafton n. Grafton. 38 L. T. N. S. 141 Graham v. Com., 16 B. Mon. 587 . .635, 636, 640, 660. 678 V. Glover, 5 El. & Bl. 591 274 XXXVI TABLE OF CASES. Graham v. People, 115 111. 566 259, 261 v. People, 63 Barb. 468. 316 v. Smith, 1 Edm. Sel. Cas. 267 880 v. State, 40 Ala. 659_ 160, 164 Graintrer r. Stale, 5 Yerg. 459 '>'■ l Grantr. Gould, 2 H. BL 69 ..910, 915 v. People, 4 Park. Crim. Rep. 527.. 616 Grattan r. Metropolitan L. ins. Co., 80 N. Y. 281,36 Am. Kep. 617 318 13. National L. Ins. Co., 15 Hun, 77, 881 Graves v. Campbell, 74 Tex. 576 258 13. State, 12 Wis. 593 27 V. State. 45 N. J. L. 203 134 V. Stare, 25 Tex. App. 333 740 Gray 13. Com., 101 Pa. 386, 47 Am. Rep. 733 465, 469, 476 V. Gray, 3 Litt. (Ky.) 465.... 370 13. JNellis, 6 How. Pr. 290 886 Greaves 13. Greaves, L. R. 2 Prob. & Div. 423 678 Green v. Com., 12 Allen, 170 405 13. Disbrow, 7 Lans. 3*1 85 13. Gilbert, 60 N. H. 146 69 v. State, 12 Tex. App. 51 71 V. State, 59 Md. 123, 43 Am. Rep. 542 204 255 v. Stated A rk\" 3047.7.7.7.7-7.7.--' 352 v. State, 3 Tex. Apu. 656 448 v. State, 69 Ala. 6 577, 594 13. State, 21 Fla. 403, 58 Am. Rep. 670 804 Greene v. State. 17 Tex. App. 395.... 183, 185 r. State, 79 Ind. 537 403 Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636 .136, 192, 503 v. People, 13 Hun, 242 342 Greenman v. O'Connor, 25 Mich. 30 415 Greenoujrh r. Gaskell, 1 Myl. & K. 98... 299 Greenwood v. Curtis, 6 Mass. 358, 377-379 864 v. Lowe, 7 La. Ann. 197 .476, 511 v. State, 35 Tex. 587 283, H52 Greer v. State, .53 Ind. 420 454, 455 Gregg r. McDaniel, 4 Harr. (Del.) 367... 253 Gregory v. State. 80 Ga. 269 292 Griffin r. Marquardt, 21 N. Y. 121 454 13. State, 90 Ala. 596. .113, 575, 581 v. State, 7« Ala. 29 826 Griffith v. Williams, 1 Cromp. & J. 47... 783 Griggs v. Houston, 104 U. S. 553, 26 L.ed. 840 231 Grimes v. State, 63 Ala. 166.... 295 Grinnell v. Phillips. 1 Mass. 530.. 2C6 Grisham v. State, 19 Tex. App. 504 616 Grottkau r. State. 70 Wis. 470... 208 Grove. Be. L. R. 40 Cb. Div. 210 863 Grubb v. State, 117 Ind. 277 141 Guenther v. People. 24 N. Y. 100 404 Guetig u. State, 66 Ind. 94, 32 Am. Rep. 99 635, 639, 770 Guffu v. State, 8 Tex. App. 187 37 Guiteau's Case, 10 Fed. Rep. 161.. 674, 675, 677 Gulerette v. McKinley. 27 Hun, 320 606 Gulicku. Loder, 13 N. J. L. 68 18 Gunter v. State, 83 Ala. 96 770 Gutehess v. Gutchess, 66 Barb. 483 321 Guy v. Mead, 22 N. Y. 162 10s H. Habersham r. State, 56 Ga. 61 .143. 189 Hadjo r. Gooden, 13 Ala. 718 610 Hasan v. Merchants & B. Ins. Co., 81 Iowa. 321 80 Hailet'. State, 11 Humph. 154 193.444,624, 757 Hair v. State, 16 Neb. 601. 352, :354 Ha*?h 13. Munday, 12 111. App. 539 326 Halbert v. Stale. 3 Tex. App. 656 448 Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17. 804 Hall v. Houghton, 37 Me. 411 370 r. Huff, 74 Ga. 409. 260 v. Naylor, 18 N. Y r . 588, 75 Am. Dec. 269— - 711 t\ Patterson. 51 Pa. 289 414 11. People, 6 Park. Crim. Rep. 671.. 420 v. People, 47 Mich. 636 831 y. Stanley, 86 Ind. 219 70 v. State, 40 Ala. 698 298, 360, 598 13. State, 15 Tex. App. 40 737 13. State, 8 Ind. 439 753 Hallahau v. New York, L. E. & W. R. Co., 102 X. Y. 194... 481 Hallaway v. Com.. 11 Bush. 344... 569 Halsey v. Siusebaugh, 15 N. Y. 485 97, 101, 107 Halsted v. State, 41 N. J. L. 552, 32 Am. Kep. 247 905 Ham w. State, 4 Tex. App. 645 937 Ham's Case, 11 Me. 391. 805, 807, 809, 840 Hamilton v. Eno, 81 N. Y. 116 8&-891 13. People, 29 Mich. 173 .434, 439, 518 13. Reg.,9Q. B.271 7(12 13. State, 35 Miss. 219 — 726 Hammond v. Dike, 42 Minn. 273, 18 Am. St. Kep. 506... -. 366 v. Wadhams, 5 Mass. 353 240 Hammond's Case, 2 Me. 35, 11 Am. Dec. 39 115 Hampton r. State, 8 Ind. 336 408 Hanawalt v. State, 64 Wis. 84, 54 Am. Rep. 588 861 Hancock r. American L. Ins. Co., 62 Mo. 26 .22, 23 13. Kellv, 81 Ala. 368 104 13. Wilson. 39 Iowa. 47 79 Hancock's App., 64 Pa. 470 OS Hancock Mut. L. Ins. Co. 13. Moore, 34 Mich. 41 - 24 Hand v. Ballon, 12 N. Y. 543 38, 456 Haney 13. Com. (Ky.) 5 Crim. L. Mar. 47 537 Hanford v. Obrecht, 49 111. 146 200 Hanley 13. Donohue, 116 U. S. 1, 29 L. ed. 535 53 Hannon 13. State, 70 Wis. 448, 10 Crim. L. Mag. 421 - 835 Hanoff 13. State, 37 Ohio St. 178.... 349 Hanover R. Co. 13. Coyle, 55 Pa. 396 122 Haurataan v. People. 91 111. 142 195 Hanson r. Elton, as Minn. 493 258 Hardtke v. State, 67 Wis. 552 597 Hardy v. Norton, 60 Barb. 527 331 13. State, 7 Mo. 607 141 Hargrove v. John, 120 Ind. 285 86 Harrington r. Harrington, 107 Mass. 329.... 09 13. State, 19 Ohio St. 364 598, 601 Harris r. Panama R. Co., 3 Bosw. 7 147 13. People, 64 N. Y. 148 170, 174. 795 13. State, 34 Ark. 469 594 13. State, 47 Miss. 318.... 594 13. State, is Tex. App. 287 662 13. White, 81 N. Y. 532 884 13. Woody, 9 Mo. 113 233 Harris in r. Bush, 5 El. & Bl. 344 890 r. Hanee. 37 Mo. 185 253 V. Harrison, 43 Vt. 417 509 13. State, 6 Tex. App. 42 553 Hart 13. Com., 85 Kv. 77, 7 Am. St. Rep. 576 579, 581, 594 v. State, 2 Tex. App. 39.... 4 Ga. 44 491 Holt r State, 9 Tex. App. 571 583,758 Holten v. Lake County Comr3., 55 Ind. 191 ..... .. . 1*1 Holtz p. Stare. 76 Wis. 99. 902 Homansr. Corning, 60 N. H.4is 454 Home Ins. Co. p. Weide. 78 V. S. il Wall. 440, 20 L. ed. 198 16 Homer p. Wall is, 11 Muss. 30, 93 Am. Dec. 169 115 Hood 0. Hood, 2 Grant, Cas. 229 27 Hoc iker r. Ri igers, 6 < !< »w. -",77 . 165 Hooper v. Moor ■. 50 X. C. 130 53 Hopt v. People, 114 U. S. 488, 29 L. ed. 183 ... 414 r. Utah, 104 U. S. 631, 26 L. ed. 873, 110 U. S. 574, 28 L. ed. 262 ...622,624, 491 Hope v. People, Si X. Y. 418.. 126 Hope's ( !as 1, 1 City Hall Rec. 150. ..469, 476 Hopewell v. De Pinna, 2 Campb. 113 23 Hopkins p. Com., 50 Pa. 9, 88 Am. Dec. 518 584 Hopper v. Ashley. 15 Ala. 465 113 Hopps v. People, 31 111. 385, 8:^ Am. Dec. 231 26, 635, 644, 645, 662, 673. 678 Horford v. Wilson, 1 Taunt. 12 245 Hornbeck 0. State, 35 Ohio St. 277, 8 r ) Am. Rep. 608 826,830 Home v. M'Kenzie, 6 Clark & F. 728 99 Horton 0. State, 53 Ala. 4^8. 3-53 Hough r. Cook. 69 111.581 70 Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331 230 Houghton r. Jones, 68 U. S. 1 Wall. 702, 17 L. ed. 503 332 House v. Metcalf, 27 Conn. 638.. 167 Housh p. People, 75 111.487 20 Houston r. State. 13 Tex. ApD.595 .... 404 Hovey v. Chase. 52 Me. 304, S3 Am. Dec. 514 lits v. Grant. 52 X. II. 569 69 Howard, Be, 26 Vt. 208 10 Howard r. Daly, 01 X. Y. 302, lo Am. Rep.285 83, '1 C. Moot. 64 N. Y. 262 38, 155 p. Patrick, :s Mich. ;'.'."> 354 (•.Smith, l Jones & 8. 12-: 233 xxx vm TABLE OF CASES. Howard v. State. 23 Tex. App. 265, 25 Tex. App. 686 575, 576, 585,594 13. State, 50 Ind. 190 687 v. State, 32 lad. 478 758 Howard Exp. Co. v. Wile, 64 Pa. 201 232 Howard F. & M. Ins. Co. v. Corniek, 24 111. 455 439 Howell 13. Huvck, 2 Abb. App. Dec. 423 45 13. State, 5Ga. 48 - 576 Howley v. Whipple, 48 N. H. 487 --—^ ^ Hoyes' Case, 39 Ga". 718 '.'. ----- 581 Hoyt v. Newbold, 45 N. J. L. 219, 46 Am. Rep. 767 22 Hubbellt'. Grant. 39 Mich. 641 281 Huber v. State, 57 Ind. 341 745 13. Teuber, 3 McArth. 485 224 Hudelson v. State, 94 Ind. 420, 48 Am. Rep. 171 440 Hudgins r. State. 2 Kelly . 404 404 Hunter i\ State, 40 N. J. L. 495.. 125, 128, 328 v. State. 8 Tex. App. 75 167 v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544 370 Huntingdon & B. T. M. K. A: C. Co. r. Decker, 82 Pa. 119 418 Huntley v. Whittier, 105 Mass. 392. 7 Am. Rep.336 94 Huntsman v. Nichols, 116 Mass. 521 157, 328 Hurd r. People, ~'5 Mich. 405, 406, 415 . 124, 407, 529, 589 Hurlburt 13. Bellows. 50 N. H. 105 373 Hurlbut .13. Meeker, 104 III. 541 332 Hurley v. State. 29 Ark. 17 354 13. State, 4 L. R. A. 161, 46 Ohio St. 320 372 Hussey 13. State. 87 Ala. 121 534, 604 Hutchinson 13. Com.. 82 Pa. 472 251 Hyatt 13. Johnston. 91 Pa. 200 231 Hyde 13. State, 16 Tex. 445, 67 Am. Dec. 632 165 Hyltoni3. Brown, 1 Wash. •'. C. 343 46 Hynds i\ Hays, 25 Ind. 31 195 Hynes 13. McDermott, 82 X. \. 41, 37 Am. Rep. 538 152, 154 I. Ihinger 13. State, 53 Ind. 251 27 Indiana, B. & W. R. Co. 13. Finnell, 116 Ind. 414 249 Indianapolis v. Scott. 72 Ind. 196 180 Indianapolis, P. & C. R. Co. v. Anthony, 43 Ind. 183 258 Inglis v. Inglis, 15 Week. Rep. 1093 70 Ingram r. State, 67 Ala. 67 375 Inman 13. Foster, 8 Wend. 602 886 Inskeep 13. Inskeep, 5 Iowa, 204,203 849 Iryin v. State, 13 Mo. 306 408 Irvine v. Cook, 15 Johns. 239 418 Irvinson 13. Van Riper, 34 Ind. 148 260 Isaacs r. State. 25 Tex. 174 570 Ives v. Hamlin, 5 Cush. 534 321 J. Jackmanv. State, 71 Ind. 149 188 Jackson 13. Browner, 18 Johns. 39 137 v. Cadwell, 1 Cow. 622 260 1). Com., 19 Gratt. 656 160, 164, 540 13. Etz, 5 Cow. 319 24, 137 13. Frier, 16 Johns. 193 43 13. Hardin, 83 Mo. 175 712 13. Humphrey, 1 Johns. 498 789 13. King, 4 Cow. 207, 15 Am. Dec. 354 25 13. Lewis, 13 Johns. 504 824 13. Parkhurst, 4 Wend. 369 261 13. People. 3 111. 231. 805 v. ple. 113 III. 99 723 13. State, 17 Ala. 624 127.501 v. State, 14 Ga. 55 229, 568 13. State. 27 FIa.245 252 13. State, 28 Tex. App. 17 283 v. State, 1 Tex. App. 3:33 352 v. State, 76 Ga. 76... 404 13. State. 18 Tex. App. 385 550 13. State, 66 Miss. 189 577 13. State, 29 Ark. 31, 21 Am. Rep. 154 619 13. State. 41 Tex. 65 703 13. State. 17 Ohio, 593 830, 8:34, 839 TABLE OF CASES. XXXIX Johuston r. Com., 85 Pa. 54, 27 Am. Rep. 622... 750 D.Johnston, Wright (Ohio) 454... 850 U.Mason, 27 Mo. 511. 159 Jones v. Angell, 95 Ind. 376 198 v. Bewicke, L. R. 5 C. P. 32 68 v. Com., 75 Pa. 403 193. 444, 448, 524, 625, 757 v. Holland, 8 Met. 377, 41 Am. Dec. 525 - 455 V. Jones, 45 Md. 144 861 v. Littler, 7 Mees. & W. 423 883 V. People, 2 Colo. 351 252 V. Statu, 13 Tex. 1, 62 Am. Dee. 550 20,37,253,618 V. State, 14 Tex. App. 85 197 v. State, 5 Tex. App. 86 240 V. State, 48 Ga. 163 292 r. State, 65 Miss. 179 518 V. State, 71 Ind. 66 530 v. State, 76 Ala. 9 604 V. Stroud, 2 Car. \- P. 196 58 V. Turpin, 6 Heisk. 181 256 v. United States, 5 Cranch, C. C. 653 703 Jordan v. Osgood, 109 Mass. 457 73, 211 V. State, 22 Ga. 545 125 v. State, 81 Ala. 20 295 V. State. 32 Ml-.-. 382 493 v. Wilkins, 2 Wash. C. C. 482 46 Joseph. The, 12 U. S. 8 Cranch, 451, 3 L. ed. 621 570 Joslin r. Grand Rapids Ice & C. Co., 53 Mich. 323 414 Judge r. State, 58 Ala. 406. 447 Judy v. Johnson, 16 Ind. 371 371 Jumper tz p. People, 21 111. 375 109 Juneau Bank v. McSpedan. 5 Biss. 04. . nil Jupitz v. People, 34 111. 510. __ 598, 601 K. Kaelin v. Com., 84 Ky. a54 3S0. 405 Kaine, Ex parte. 3 Blatchf. 1 _y34, 941 Kalk v. Fielding, 50 Wis. 339 45 Kalle v. People, 4 Park. Crim. Rep. 591 156. 158 Kane v. People. 8 Wend. 203 401 Kansas Pac. R. Co. v. Pointer, 9 Kan. 620 I Kaolatype Entrraving Co. v. Hoke. 30 Fed. Hep. 444 13 Kautfman r. People, 11 Hun. 82 S67 Kaufman v. State, 49 Ind. 248. 6*7 Kean c. Com., 10 Bush, 190, 19 Am. Rep. 63 352, 387 r. People, 11 Colo. 258 641 Kearney v. State, 48 Md. 16. _ 4U3 Keegan v. Geraghty, 101 111.26 863 Keely r. State, 14 Ind. 36 727 Keenan v. Com., 44 Pa. 55, 84 Am. Dec. 414. _ 193. 444. 448, 624 Keener v. State, 18 Ga. 194, 63 Am. Dec. 269. 252. 407, 581, 584, 5:14, 766 Keenholts u. Becker, 3 Den io, 346 887 Kehoe v. Com., 85 Pa. 127 529 Reiser v. State, 83 Ind. 234 __ 196 v. Topping, 72 111.229 167 Keitler r. State, 4 G. Greene, 291 21 '5 Keller r. State, 51 Ind. 11 703, 70S Kelley, Re, 25 Fed. Rep. 268,2 Low. L>e< . 33:i 930, 933 Kellogg v. Kellogg, 6 Barb. 116... 159 v. State, 26 OhioSt. 15 719 Kelly, Be, 26 Fed. Rep. 852. 932, 944 Kelly 0. lire m >k-, 25 Ala. 523 326 v. Com., 1 Grant. Cas. 4<4. 193, 444. 624 v. Jackson, 31 U. S. 6 Pet. 622, 8 L. ed. 523.. .35. 36, 436 V. People, 115 HI. 583 251 v. People, 6 Hun. 509 738 v. state, 3 Smei les & M. 518. 638 Kelseau. Fletcher, 48 N. H. 283 108 Kemp 0. State, 11 Tex. App. 174 771 Kendall v. Brown, 86 111. 3*7 194 v. State, 8 Tex. App. 569 569 Kendrick r. state, 55 Miss. 436 771 Keniston v. Rowe, 16 Me. 38 861 Kennedy v. Com., 78 Ky. 447 13 v. Com., 2 Va. Cas. 510 206 V. Com., 14 Bush, 340 252, 572, 758 V. Gitford, 19 Wend. 293 886 v. People. 39 N. Y. 245 405, 446, 7:39 v. People, 40 111. 488 439 V. State, 9 Tex. App. 399 16S v. Cpsbaw, 64 Tex. 411 116 Kenny v. People. 31 N. V. 330 621, 626 c. Van Horn, 1 Johns. 394 _. 46 Kenrick v. Keurick, 4 Hagg. Eccl. Rep. 114 854 Kensingtons. Inglis, 8 East, 273 99 Kent v. People, 8 Colo. 563 19. 124,262, 425, Kentucky v. Dennison, 65 D. S. 24 How. 66, It; L. ed. 717 10, 928, 937, Kenyou v. People, 26 X. V. 203, M Am. Dec. 177 510, - "4. 867, 868, 870, 874. 677 Ker, Exparte, I s led. Rep. 167 Ker v. Illinois. 119 U. S. 436, 30 L. ed. 421 930 938 V. People," 110 "ill! 627,51" Am. Rep.' 706 930- Kernin r. Hill. 37 111.209 Kerrains v. People, 60 X. Y. 221, 14 Am. Rep. 158 454, Keutgen v. Parks, 2 Sand f. 60 Keyes v. Mate. 122 Ind. 527 Kibler i'. Mcllwaine, 16 S. C. 551 Kidder v. Stevens, 60 Cal. 415 Kilpatrick v. Com., 31 Pa. 193 Kiuchelow v. State. 5 Humph. 9 King v. Atkins, 33 La. Ann. 1057. v. t.'i im„ 2 Ya. Cas. 78 r. D'Eon, 1 W. Bl. 510, 3 Burr. 1513 ..165, r. Donahue. 110 Mass. 155, 14 Am. Rep. 589 V. Lynn. 2 T. R. 733 v. Paddock, 18 Johns. 141 V. Root, 4 Wend. 113 c. State, 4 Tex. App. 256, 30 Am. Rep. 130. v. State, 40 Ala. 314 v. Stare. 55 Ark. 801 v. State, 89 Ala. 14o _ r. Worthington, 73 HI. 161.... Kingenn c State. 45 Ind. 51- Kingsbury r. Moses, 40 X. H. 222. Kinne c. Kinne, 9 Conn. 102... Kinney v. State. 21 Tex. App. 34-> Kinsley v. Morse, 40 Kan. 577 Kirschner v. State, 9 Wis. 140 Kirwin v. Joins, 3 Hodges, 230 Kistler v. State, 54 Tnd. 400. Kizer v. State, 12 Lea. 564 Klein v. Hottheimer, 132 U. S. 367. 33 L. ed. 373 v. Russell, 86 U. S. 19 Wall. 439, 22 L. ed. 116 Klimple v. Boelter, 44 Minn. 172 Kliuck u.Colby, 46 N.Y. 427 ....889,890, Klink v. People. 11; Colo. 467 Klock v. State. 60 Wis. 574 Knapp 0. Schneider, 24 Wis. 70 ... Knickerbocker i\ People. 43 N.Y. 177, 1 Cow. Crim. Rep. 287 Knickerbocker L. Ins. Co. i>. Ecclesine, 6 Abb. Pr. N. S. 30 Knitner v. State, 45 Ind. 175... Knoll r. State, 55 Wis. 249. 42 Am. Pep. 704 . 769, Knopf r. State. -I Ind. 316 Koerner v. State, 98 [nd. 7. 684 942 879 930 940 940 109 894 370 346 326 27 771 76 325 448 166 114 742 22 894 240 498 578 584 80 758 415 240 173 258 300 68 600 181 258 44 198 894 794 330 .. 734 292 113 196 xl TABLE OF CASES. Pi 56 te. - rex. App. l l""' ... 5 Bush, •' i 626, 635, L. u v. People, M N 30, t<»4 i & B. R. i ". o. Doak, 52 Pa. 198 : Lafayette, B.& M.R. Co.v. Winslow,66 III. 219 ........ 411 ithern Underwriters' \-- .,88 N.C. Laird v. i ampbell, H*i Pa. 159 97 . i). Trunin.:; Mo. 529 22 14U. S.218. 29L.ed.94 53 - wart,2 Ohio, 230 363 i -.1 hi. mi. 29 !.. J. i h. 286 .- 23 Lam! I e, 9 < ow. 578 .... Lea, 575 144,623 u. Washington L. Ins. Co., 62 Mo. 121. ----- 23 I 12.j . 1:: ri s. H52 441 Landsberger p. Gorham, 5< al. 150 281 Landwerlin v. Wheeler, 106 Ind. 26] . Bryant, 9 Gray, 245, 69 Am. Dec. 282 e, 50 Barb. 265 626, 628 Lang v. State, 84 3, 766, 770 1 parte, 25 Vt. 682 265 Lte, 95 Ind. Ill 764 '. Wright (Ohio) Langtry o. Stat.-, 30 \ i. 536 805 ley, 13 Abb. Pr. 272 415 Kelly, 35 Vt. 195 102 , o. Huey, 13 II. Mon. 436 .. .... 158 Larrison r. Larrison, 20 N. J. Eq. 100... 819 11. 789 i . S. Sup. Ct.) April 3. 1893 930 516... Latham v. Reg.,5 Best.&S.63o 719 ! ,2 Swab. & T. 524 Latti : .1 Iowa, 1, 63 Am. Dec. Laugblin v. Chicago & N. W. R. Co., 28 3. 204, 9 Am. Rep. 493 27 te, l- ' hum. 99, 51 Am. D< c. Ill 634 Lawn • er, 5 Wend. 301... 108, 370 D. Lanning, 1 Ind. 194 - te. 84 Ala. 4J4 ... 575 : d v. Bacbman, 81 N. V. 616 45 - te, 17 Tex. App. 292 Ala. 65,56 Am. Dee. 182 ! • Mass. 241 . 1 < oldw. L* v. J ; 1 Humph. 144 - . \. V. 1 84 92V r Wreck. \- Tr . ..152, -.54 Stal 8:t2 L 11 Mo. 114 231 598 i ... 720 Drake, 1 ( ihio St. 286 ... .. 14-, 325 '. Lehigh Lpp. li I. 51 Lciber v. Com., 9 Bush, 11 53? Leigh r. People, 113 III. 372. 440 er o. Wilke, i Serg. & B. 203.... 358 Leighton o. People, 88 N. Y. 117 593 r. Sargent, 31 N. H. 119, 34 Am. D C. 324 253 Leland, Re, : Abb. Pr. \. S. 64... 945 Lelandc. Bennett, 5 HiU, 286.. 320 V. Wilkinson, 31 LT. S. 6 Pet. 317, 8 L. ed. 112.... 56 Lemons v. State, 4 W. Va. 755, 6 Am. Rep. 293 611 Lenox v. Fuller, 39 Mich. 268 363. . State, n Ala. lit) Ml Lesau v. Maine Cent. R. Co., 77 Me. 87 .. 232 L r o. Peo] le, 12 Hun, 668 703,708 Letton v. Graves, 26 Mo. 250 260- Levy V. State, 28 T< \. App. 203, 19 Am. St. Rep. 826.. 578-580 Lewer o. Com.. 15 Serg. & R. 93 739 Lewis r. Blair, 3 Irvine, 16 501 Eagle Ins. Co., hi Gray, 508 289 r. Payn, 4 Wend. 423 240 v. People, 82 111. 104 861 r. Ryder, 13 Abb. Pr. 1 159 r. State, H Head, 127 448 v. State, 88 Ala. 11 585 Liebman r. Pooley, l stark. 107.. 81 Lieutenant Kiev's Case, 2 DeLolme, Eng. Const. 982. 911 Lightfoot r. People, 16 .Mich. 507 328 Lightner r. Wike, 4 Serg. & R. 203 108 Liles 0. State, 30 Ala. 24, 08 Am. Dec. 108 ._. ...-127, 501 Lilienthal's Tobacco r. United States, 97 U. S. 268, 24 L. ed. 905 35 Lilly v. Waggoner. 27 IU. 395 25 Linard v. Crossland, 10 Tex. 4*12.. 258 Lincoln r. French, 105 U.S. 614,26 L. ed. 28 Lindenberger r. Beall, 19 U. S. 6 Wheat. I 14, 5 L. ed. 216.. 79 Lindsay o. People, 63 N. Y. 143. 514, 515,521,770 Lingo r. State, 29 Ga. 470. 578, 594 Linsley v. Lovely, 26 Vt. 123. 325 i. State, 1 Tex. App. 739. 538 Littler.! om., 25 Gratt. 921 204 \ Mate, 6 Baxt. 493... 579, 594 l.i\ ingston t>. i lorn., 14 Gratt. 592 405 r. Kiersted, 10 Johns. 362. 288 Lloyd v. Newell, 8 N. J. L. 365 240 Locke r. State, 32N. H. 106. 737 Loeffner r. State. 10 Ohio St. 598 165. 636,641,678 Logan o. State. 17 Tex. App. 50 594 . p. State. 3 Ilei.-k. 414 290 Logue o, Com., 38 Pa. 265, 80 Am. Dec. 481 570,572,573 Long v. Davis, 18 Ala. 801 353,354 v. Drew. 114 Mass. 77 46 15 lnd.488 206 V. Stale. 56 In.!. 186.. 246 v. State, 86 Ala. 43 584 Loomis v. Edgerton, 19 Wend. 420 729 -. People, 67 X. ?.322,23Am. Rep. 123 ...777, 723, 730, 736 Lord Me', in re'- Case, 4 How. St. Tr. 654 911 Lord Melville's Case. 29 How. St. Tr. 763 8 Lord r. State, 17 Neb. 526.... 811 o. Steineman, 1 Met. 204 23 Loss* n I'. Mate. 62 Ind. 437 441 Lott v. .Macon. 2 Strobb. L. 178 253 Louis, The. 2 Dod. Adm. 264 574 ST. A. i: C. K. Co. r. Falvev, 104 Ind. 409 " 259 V. Grantham, 104 Ind. 353 260 Love v. Masoner, 6 Baxt. 24, 32 Am. Rep. 522 879 r. Stale. 22 Ark. 336 .495, 496, 499 li ii i\ Loveden, 2 Hasrg. Consist. Rep. 2 B51, 854 TABLE OF CASES. xli Lovell v. State, 12 Ind. 18 842,851 Lovinger v. Madison Fii - st Nut. Bank, 81 Ind. 354 258 Low u. Hall, 47 X. Y. 104 708 Low's Case, 4 Me. 439 203 Lowe v. Lowe, 40 Iowa. 220 320 o. Ryan, 94 Ind. 450 24!/ c. State, 86 Ala. 47 354 v. State, 88 Ala. 8 491 Lowenberjr v. People, 5 Park. Crim. Ren. 414 601 Luby v. Hudson River K. Co., 17 N. Y. 131..... 108 Lucas v. State. 23 Conn. 18 281 v. State, 27 Tex. App. 322 408 Luce v. Hoisington. 56 \ t. 430 69 Luco v. United States. 64 V. S. 2:3 How. 515,16 L. ed. 545. 154 Ludwigr, Re, 32 Fed. Hep. 774 932 Lumpkin v. State. 68 A la. 56 516 Lund «. Tyngsborouffh, 9 Cush. 36. . .122, 128 Lynch v. Coin.. 77 Pa. 205 635, 638 V. State. 9 Ind. 541 330 Lyon v. Lyman, 9 Conn. 55 115 Lyons r. People, 68 111. 272 404 Lytle v. State, 31 Ohio St. 196 626 M. Mabbett v. White, 12 N. Y. 442 360 McAdams v. State, 8 Lea. 463 249 13. State. 25 Ark. 405.. 405 McAdory r. State, 62 Ala. 154 499 McAllister c. state. 17 Ala. 434. 52 Am. Dec. ISO.. 635, 640, 674 McCall v. United States, 1 Dak. 321 49 Met aim o. State, 13 Smedes & M. 471.... 545 McCarnev v. People, 83 X. Y. 40s. 3s Am. Rep. 456 85, 159, 486, 901 McCartee v. Camel, 1 Barb. Ch. 4vVJ 23 McCartney 13. McMullen, 38 111. 240 189 McCarty r. People, 51 111. 231, 99 Am. Dec. 542 599 McCloskey r. People. 5 Park. Crim. Rep. 299.. 203, 745 McCluno- r. MeClung, 40 Mich. 493.. .850, 851 McClurkin r. Ewing. 42 III. 283 261 McCombs v. State, 8 Ohio St. 643 606 McConnell v. State, 67 Ga. 633. 229 f. State, 46 Ind. 298 _ 365 V. State, 22 Tex. App. 454, 58 Am. Rep. 647 403 McConnell's App., 97 Pa. 34 16 McCorkle v. Binns, 5 Binn. 340 ... 116 13. State, 14 Ind. 39 616 McCormick v. Joseph. 77 Ala. 236. 454 McCotter r. Hooker. 8 X. Y. 497 80 McCoy r. People. 65 111. 439 861 v. State, 25 Tex. 33, 78 Am. Dec. 520 441 McCullough d. Davis. 108 Ind. 292 259 v. Mclntee, 13 U. C. C. P. 441 888 v. State, 48 Ind. 112 732 McDaniel v. Baca, 2 Cal. 320, 56 Am. Dec.339 362 V. Com., 77 Va. 281. 242, 570 v. State, 8 Smedes & M. 401, 47 Am. Dec. 93 447,543,606 13. State, 76 Ala. 1 585 McDermitt v. Hubanks, 25 Ind. 232 258 McDermott v. State, 89 Ind. 187 16">. 195 McDonald v. State, 63 Ind. 544. 196, 224 Macdonnell, Re, 11 Blatchf. 170 933, 944 McDougal y. State, 88 Ind. 24 ...26, 141 McDousrall r. Claridfre, 1 Campb. 26'i B9I McDowell o. Crawford, 11 Gratt 377 158 Macet'. State, 6 Tex. App. 470 436 McElhanon v. People, 92 III. 369 203 McElven r. State, 30 Ga. 868.. 440 McFadden v. Fritz. 110 Ind. 5 249 McFarland v. People. TSzH.368 861 McGarry v. People, 45 X. V. 153 347 McGinnis v. State, 24 Ind. 500 45, 46 McGuire v. Peonle, 44 Mich. 2£6, 38 Am. Rep. 265.... 437,440 v. People, 9 X. Y. 38... 521 Mclntvre v. People. 38 111. 520 757 Mack o. People. B2 X. Y. 236 265 0. State, 48 Wis. 27! 125 McKain v. Love, 2 Hill, L. 506, 27 Am. Dec. 401 - 276 McKee o. People. 36 X. Y. 116 oUl McKeever r. New York Cent. & H. R. K. Co., B8 X. Y. 667.. 231 McKenna r. State. 61 Miss. 589 ..1 McKenney r. Dingley, 4 Me. 172 463 McKenzie 13. State. 26 Ark. 334 -- 448. 621, 635, 640, 641 McKeone b. People, 6 Colo. 346 346 MeK< --on r. Sherman, 51 \\ is, 303 2o8 Mackey v. Com., 80 Ky. 345 16& McKinney 13. Jones. 55 Wis. 39 lo9 v. People, 17 HI. 556 259 McKivitt u. Cone, 30 Iowa. 455 104 McKleroy v. State, 77 Ala. 95 439 McKown v. Craig, 39 Mo. 156 ~o0 13. Hunter, 30 X. Y. 625 454, B94 McLain 13. Com.. 99 Pa. 86 — - 771 13. State, 18 Neb. 154 687, 733 McLane u. State, 4 Ga. 335...-- — 3.9 McLaughlin 13. State. 52 Ind. 4,6.. 17* McLean v. Clark. 47 Ga. 24 ~~3, <>~jl Mc Lei Ian v. Croften, 6 Me. 301 ~>~ McManus r. State. 36 Ala. 285 5Jb McMeen 13. Com.. 114 Pa. 300 440, 5 04 McNair o. Cow/., 36 Pa. 388 . n«{ Macon,! tt, 1" Kan. .».-}— lib McPhaul 13. Lapsley, 87 U. S.20 Wall. 264, .» l ed 344 ** McPhun.~Be,"24 Blatchf.254.....927, 932, 933 McQuigan r. Delaware. L. & W. R : < O., 14 L. R. A. 166, 129 N. \ . o0 ... 691 McQuiUen r. State, - Smedes \- M. 587 - Madden v. State. 65 Miss. 176 Maddin 13. Head. 1 Lea. 664 . Maden 13. Emmons. 83 Ind. 331 Magee r. Scott, 9 Cush. 148, 55 Am. Dec. 49 -' Magill 13. Kauffman. 4 Perg. & R. 317 354 Mahala v. State, 10 Yerg. 532, 31 Am. Dee. 591 i~ :~- blt Maher 13. People, 10 Mich. 217, 81 Am. £> ec 7S1 12b. 131, 191 Mahon r. Justice. 127 U. S. 700, 32 L. ed. ogo y.3?, s»u Mahoney 13. People, 5 Thomp. A: C. 329.. 745 Maine p. People. 9 Hun, H3 5l{ Maines 13. States, 26 Tex. App. 14. .. Mallet (3. People, 3 Am. Crim. Rep. o82 Malonev 13. People, 38 111. 62. Manice v. Brady, 15 Abb. Pr. 1.3 Mann 13. Clifton. 3 Blackf. 304... 249 616 791 827 861 248 240 l\ People, 35 111. 467 861 r. Sii aix City i: P. R. Co., 46 Iowa, 037 '0 Manuel r. People. 48 Barb. 548 239, 253 Mapes 13. People, 69 III. 530 142 Marble u. Marble, 36 Mich. 386 350 March v. Ludlum. 3 Sandf. Ch. 45. 316 v. State, 117 Ind. 547 ;vv-v ',?- Marclv 13. Shults, 29 N. Y.346 97. 100, 107, 24o Marcott v. Marquette, H. & O. R. Co., 1. Mich. 1 - 231 Marcy 13. Barnes, 16 Gray, 162 . 15d Marianna Flora, The. 2+ I*. S. 11 A\heat. 51,6 L. ed. 417 -■ 574 Marion ». State, 16 Neb. 349 .- 440 Marion County v. dark, 94 I . s. 384, IA L. ed. 61 231 Mark- 13. State. -7 Ala. 99 419 Marler 13. State. 67 Ala. 55, 42 Am. Rep. 95 353, 354, 187, 517, 583 13. State, 68 Ala. 580 515 Marquand c Webb, 16 Johns. 89 ....245, 419 \lii TABLE OF CASES. Mareden p. Overbury, l*C. B. 34 274 Marebv. Band, 35 Md. 123 80.81 v. Loader, 14 C. B. \. 8. 535 291 Marshall v. Brown, 50 Mich. 148 .... 145 v. Daviee, 78 N. V. Hi 157, 327,328 o. BJli \. 7 Ga. 367 290, 301 o. SI .t -. 5Tex.App.273 414 p. State, 8 Ind. 498 616 r. Slat.'. 59 Ga. 154 621 p. State, 7! Ga.26 ...- 770 Martin p. Farnham. 25 N. II. L99 358 p. People, 54 111. 225 206 v. State, 28 Ala. si 127, 501 v. 'iv. bin. I-::; Mass. 85 70 p. Travere, 12 Cal.243 2r,o Martin. -an p. May. 18 Wi9. 59. 360 Marvin t>. State, 53 Ark. 395 ... 795 Marx p. Pi o >le, 8J Barb. 618 346 Mary p. Stht i, oMo. 71 156 Mason p. Libbey, 90 N. V. 683 4:! 0. Lord, hi \. V. 177 -50 V. State. 12 Ala. 532 216, 545, 751 p. State, 32 Ark. 239 47';, 511 rale t>. -tat.-. :i Tex. App. i v i - . 771 Mass. j p. Allen, L. K. 13 Ch. Div. 558 97 p. State. 1 Tex. App. 564. «; Masten p. Masten, 15 n. ll. 159 850 Math, wa p. State, 19 Neb. 330 831 . N iyi S, !5 Ul. 593 89,91 Matthews c. St. Louis (.. Elev.Co.,50 M.. 3.v> ™->ti ksw. LymanVi'6Vt.*ii3-"".""I." 501 Maurer v. People, 4;; X. V. I . 335, 394, 396 Mauri v. Befferman, 13 Johns. 58 109 Mauro p. Piatt, 62 111. 150 19;.' Maxbam p. Place, 4>; \'t. 434 316 Maxwell p. Rives, 11 Nev. 213 274 V. Stat.', 89 Ala. 164 419 May v. l'.lam. •'; Iowa, 365.. 2t)l r. People. 60 III. 1".' - - 431,440 u. State, 6 Tex. App. 191 436,572 1 . State, 92 III. 343 469, 476 p. State, 55 Ala. 39... 529 Mayer p. Mayer, 21 N. J. Eq. 246 a50 pli . 8 I \. V. 364 7:;. 700, 711 713, 779 Mayfleld v. State, 110 Ind. 591 . 594 Maynard p. Beardsley, 7 Wend. 561, 22 Am. Dec. 595 887 v. Firemen's Fund Ins. Co., 34 ('a I. 48, 91 Am. Dec. 672 141, 888 Mayson p. Beazley, 27 Miss. 106. 97 ise, l Lew. C. C. l-i 578 Means p. state, in Tex. App. 16, 38 Am. Rep. 640 .264, 267 Mechelke v. Bramer,59 Wis.57 414 Medler v. State, 26 Ind. 171 206 Medway p. Needham, 16 Mass. 157 804 Meecb p. Smith, 7 Wend. 315 .... 17 Mehle p. Lapeyrollerie, 16 La. Ann. 4 850 Meixsell p. Williamson, a5 111.533 225 Melluisfa r. CoUier, 14 Jur. 621 372,510,758 M. Km p. Melvin, 58 N. II. 569 71 Memphis & G. R. Co. v. Maples, 63 Ala. 49 Meranda p. Spurlin, 100 Ind. 380.. 249 Mercer p. State. 17 Ga. 146 621 P. Stat.-. 17 Tex. App. 452 Merchants Nat. Bank r. State Nat. Bank 77 r. s. 10 Wall. 637, 19 L. ed. 1015 229 ii p. Com.. 1- B. Mon. 49.. . Mergentheim p. State, 107 [nd Merrill p. Berkshire. II Pick. 26 1 v. Ithaca & > >. R. 1 V .. 16 Wend. 586, 30 Am. [i.e. 130 102, 108 r. IS 253 Merriman p. Stat.-. 3 Lea, 394 377 Merritt's Case, 4 City Hall Ri .. 797 Metzger p. Franklin Bank, 119 Ind. 359 259 '-. State. 1- Fla. 481 495, 196 P. ("iillen. .54 X. V. 392 157 Mover v. Goedel, 31 How. Pr. 450 320 v. Pacific R. Co., 40 Mo. 151 231 Meyers v. Com., 83 Pa, 131.. 19:!, 436, 437, 443, 635, 771 Michel v. Ware, :> Neb. 229 260 Michigan Cent. K. Co. v. Coleman, 28 Mich. 44ti 108 Miles, Be. 52 Vt.609 937 Miles v. I nited States, 103 TJ. S. 304, 26 L. ed. 181 437,439,805-807 Milliken p. Pratt, 125 Mass. 380 864 Miller, Be, 23 Fed. Rep. 33 931 Miller r. Barber, 66 X. Y 558 402, 711 U.Cook, L24 Ind. 101 369 V. Com. (Ky.) 10 Ky. L. Rep. 672 .. 581 v. Com.. 78 Ky. 15. 39 Am. Rep.194. 706 r. Kerr, 2 McCord, L. 2s5, 13 Am. Dec. 722 886 r. Kirbv, 74 Dl. 242... 195 v. Miller, 9i X. Y. 315 802, 863 l>. People, 39 111. 457 431, 440, 493. 495, 504, 686 v. Russell, 7 Mart. (La.) 206 S54 r. State. 33 Miss. 356 255 r. State, 15 Fla. 577 346 ■r.State, .54 Ala. 155 448 V. State, 40 Ala. 54 493 p. State, 25 Wis. aS4 529, 530 Miller's Case, 2 W. HI. 881 789 Millett v. Blake, 81 Me. 531 173 Milligan, Ex -parU , 71 U. S. 4 Wall. 2, is L.ed. 281 ...911-913 Millner v. Eglin, 04 Ind. 197, 31 Am. Rep. 121 188 Miltenberjrer v. Logausport, C. & S. W. R. Co., 106 U. S. 311, 27 L. ed. ];>() 4fi5 Milton v. State', 6 Neb.' 138"."."."".'"."."'" 239 Mima Queen v. Hepburn, 11 U. S. 7 Cranch. 290, 3 L. ed. 348 137 Mims v. Sturdevant, 36 Ala. 640 10s Miner v. Phillips, 42 111.123.. 455 Minich r. People. 8 Colo. 440 .228, 439 Mint. in v. Com., 79 Ky. 461 758 Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195 4S4 Mitchell v. Carter, 14 Hun, 448 227, 253 r. Cum. (Ky.) 12 Ky. L. Hep. 458.. 352 p. State, 8 Yerg. 514 405 p. State, 60 Ala. 26.. 419 v. State, 79 Ga. 730 491 v. State, 42 Ohio St. 383 ._ 616 Mitchell's Case. 12 Abb. Pr. 249 310 Mixon v. State, 55 Miss. 527 430 Mobile & M. R. Co. v. Ashcraft, 48 Ala. 30 108 Moett r. People, 85 X. Y. 373 198, 224 Moflit v. Varden, 5 Cranch, C. C. 658.... 22 Monroe r. state, 5 Ga. 85 _ 570 Montana r. Whitcomb, 1 Mont. 359, 25 Am. Rep. 740.. B47 Montee r. Com., 3 J. J. Marsh. 149 _ 141 Montelius v. Atherton, 6 Colo. 227 79, 83 Montgomery r. Be vans, 1 Sawy. tit?6 803 p. Montgomery, 3 Barb. Ch. 132 ... 860 r. State, 11 Ohio, 427 141 v. State, SO Ind. 338. ...529, 531, 533, 538 Montgomery & W. PI. R. Co. p. Webb, 27 Ala. 618 27 Moody v. Osgood, 54 X. Y. 488 197 V. People, 20 111.315 ... 165 p. Unwell, 17 Pick. 490, 28 Am. Dee. 317 ._ 115.325 Moon o. Crowder. 72 Ala. 88... 113 V. State. 68Ga.687 229 Mooney p. State. 33 Ala. 419 626 Moore V. Hank of Metropolis. 38 U. S. 13 Pet. 302, 10 L. ed. 172 200 13. Philadelphia Bank, 5 Serg. & R. II 243 r. State, 68 Ala. 360 292 r. Stat.-, 12 Ala. 704, 46 Am. Dec. 270 535 TABLE OF CASES. xliii JMoore v. State, 2 Ohio St. 590 506 v. State, 17 Tex. Anp. 170 737 u. United States. 91 U. S. 273, 23 L. ed. 347 114 Moots v. State, 21 Ohio St. 653 101 Morales v. State, 1 Tex. App. 494, 28 Am. Rep. 419 181 Morehead v. Brown, 51 N. C. 307 636 Morehouse v. Mathews, 2 N. Y. 514 321 Morey r. Morning Journal Asso., 9 L. It. A. 621, 123 N. Y. 207 886 Morgan v. Browne, 71 Pa. 130 712 v. Brydges, 2 Stark. 314 32.5 V. Farrell, 58 Conn. 413 86 V. Frees, 15 Barb. 352 359 V. People, 59 111. 58 90 V. Ravey, 6 Hurlst. & N. 265 18 V. Reid. 7 Abb. Pr. 215 261 v. State, 48 Ohio St. 371 432 Morgan's Case, lMood.& R. 134... 783 Morris v. Bowman, 12 Gray. 467 436 r. Davies, 3 Oar. & P. 215 B58 v. Lachman, 68 Cal. 109 105 V. Miller. 4 Burr, 21 157 .69, 809, 852 V. Patchin, 24 N. Y. 395, 82 Am. Dee. 311 ._ 51 V. Talcott, 96 N. Y. 100 885 v. "Wadsworth, 17 Wend. 103 417 Morrison v. Cbapin, 97 Mass. 72 97 v. Emslev. 53 Mich. 564 27 r. Lennard, 3 Car. & P. 127 ... 889 v. Porter, 35 Minn . 42.">, 5:< A m. Rep. 331 116 V. State. 13 Neb. 527 241 Morrow v. Ostrander, 13 Hun, 219 In7 Morse v. Potter, 4 Gray. 292 _ 328 Morton r. Reeds, 6 Mo. 64 231 Mose r. State, 36 Ala. 211 495 Moser v. Kreiyh. 49 11!. 84 260 Mosier v. Stoll, 119 Ind. 244 249 Moss v. Witaeaa Printing Co.,64Ind. 1".'.") 195 Mosser r. Mosser, 29 Ala. 313. 849 Mott o. State, 29 Ark. 147 405 Moultrie v. Hunt, 23 N. Y. 394 862 Mount v. Mount, 15 N. J. Eq. 162, 82 Am. Dee. 276 v. State, 14 Ohio, 295, 45 Am. Dec. 542 615 Mt. Desert r. Cranberry Isles, 46 Me. 411 252 Mown v v. Walsh, 8 Cow. 238 738 Mover v. Com., 98 Pa. 338 130 Mulhado v. Brooklyn Citv R. Co., 30 N. 862 Y. 370 695 Mulhollin r. State. 7 Ind. 640 320 Mullen v. Morris, 2 Pa. 65 56 V. Prvor, 12 Mo. 307 27 Mullinix v. People. 70 HI. 211 139 Mullins r. People, 110 111. 42 440 Muloek r. Mulock, 1 K lw. Ch. 14 850 Mulrooney r. State. 20 Ohio St. 326 738 Munkers v. State. 87 Ala. 94 880 Munsr. Dupont, 3 Wash. C. C. 31 942 Murphy v. Hagerman. Wright (Ohio) 293 110 r. People, 90 111.59 229 v. State, If) Neb. 383 240 V. State. 106 Ind. 90 413 Murray v. Harway, 56 N. Y. 337... 250 r. Rable, 4 Hayw. iTenu.) 203 240 v. State, 25 Fla. 528 489, 494 Mutual L. Ins. Co. V. Suiter, 131 N. Y. 557 782 v. Terry. 82 U. S. 15 Wall. 580, 21 L. ed. 236... 073 Myer v. Fegaly, 39 Pa. 429 172 Myers v. Dixon, 45 How. Pr. 4? 233 Nash r. Hunt, 116 Mass. 237 45 v. State, 2 Tex. App. 362 578 Nash v. Towne. 72 U. S. 5 Wall. 689, 18 L. ed. 527 107 Nason v. West. 78 Me. 256 233 Nathan v. Bueklaud, 2 Moore, 153 245 NausrJe v. State, 101 Ind. 284... 258 Neale v. Delaware, 103 U. S. 370, 26 L. ed. 567 203 v. Neal, 58 Cal. 287 110 Neiderluek v. State. 21 Tex. App. 320... 173 Nelms v. State, 58 Miss. 362 165 v. State. 13 Smedes & M. 500, 53 Am. Dec. 94 533 Nels v. State, 2 Tex. 280 141 Nelson r. Dodge, 116 Mass. 367 228 v. Musgrave, 10 Mo. 648 898 v. People. 5 Park. ("rim. Rep. 39... 408 r. State, 2 Swan. 259 366 v. Yorce, 55 Ind. 455 188 Nepeau v. Knight, 2 Mees. \- W. 894.. 23, 801 Nesbit v. State, 43 Ga. 238.. 539 Nevlingt). Com., 98 Pa. 322... 20 Newcomb v. Griswold, 24 N. Y. 298 45,280, 362 v. State, 37 Miss. 383 .361, 580, 594 New Haven Countv Hank v. Mitchell, 15 Conn. 206 79 Newkirk v. State. 27 Ind. 1.... 253 Newman v. Goddard, 3 Hun, 72 418 v. State, 49 Ala. 9 504 New Orleans Draining Co. v. DeLizardi, 2 La. Ann. 281 263 Newson v. Lycan, 3 J. J. Marsh. 440 240 Newton v. State. 21 Fla. 53 396 r. -rate. 92 Ala. 33 .5s:> New York, The, 18 U. S. 3 Wheat. 59, 4 L. ed. 333 570 New York F. Ins. Co. v. Walden, 12 Johns. 513 194 Nicholls i . State, 5 N. .1. 1.. 539 203 V. State, 68 Wis. 410, 00 Am. Rep. 870 ._ 751 r. Webb, 21 C. s. 8 Wheat. 326, 5 L. ed. 628 98 Nichols V. Com., 11 Bush. 575 575, 765 V. People. 17 N. Y. 114 486 c. State, 8 Ohio Sr.4:;"> ii20 v. White, 85 N. Y. 531 373 Nicholson r. Descbry. 14 La. Ann. 81. 325 Nicoles v. Calvert. 96 Ind. 316 195 Nitche v. Karl. , 117 Ind. 270 249 Nixon r. Brown, 4 Blackf. 157 195 Noble r. State, 22 ohi«. St. 545 840 Noles v. State, 20 Ala. 31, 02 Am. Dec. 711 569 Norris r. State, -7 Ala. 85 228, 347, 349 Norris' Case. 6 City Hall Rec. 86 745 North v. North, 5 Mass. 320 850 Northwestern Mut. L. Ins. Co. v. Haze- Lett, 105 Ind 212 201 Norton v. State. 106 Ind. 163 840 Norwood c. Kenfield, 30 Cal. 393 370 Noves, Re, 17 Alb. L. J. 407 937 Nuzum v. State, 88 Ind. 599 196 O. Oaks v. Weller, 13 Vt. 106, 38 Am. Dee. 5-3. 16 Vt. 71 16, 83 Ober r. Carson, 02 Mo. 209 320 i >berfelder v. Kavanaugh, 21 Neb. ; ( ib mchon v. Boon, in Mo. 442 230 O'Brien v. People, 48 Barb. 274 420, 44\ 19.5, 021, 628, 642 O'Byrnes v. State, 51 Ala. 2.5 203 O'Callaghan v. Bode, 84 Cal. 489 198 O'Connell v. People. 87 N. Y. 377, 11 Am. Rep. 379 26, 198, 426, 639, 042 O'Connor v. State, 30 Ala. 9 708 Odell v. Montross, 68 N. V. 499 in; Ogden v. Payne, 5 Cow. 15 165, loo xliv TABLE OF CASES. 358 4*1 771 . Bro< k-. "7 [nd. 81 0, .4 Am^Rep. 778 Til O'Hagan v. Dillon,7l v V 70 330 < I'll, rrlo p. State, ei [nd. 42 i - 620 n r. staii'. 11 Neb.276, 38 Am. Rep. Oliver o. Com., l'H Pa. 215, 47 Am. Rep. 880 p. 81 Olmstead v. Winsted Bank, 32 Conn. 278, im. D( c. 360 370 Olmsted p. Brown, 12 Barb. 657 892 on., 75 Pa. i~i .... .... - ■ rtonk v. Ranlett, 3 Hill. 323.. .165, 166 O'Neale v. Walton. 1 Rich. L.234 97 O'Neil Ga. 66 223, 444) Oram p. Bishop, 12 N. J. L. 177. 240 Orriway p. Haj nes, 50 N. II. 159 . 154 ■ Hi-. H Abb. .N. C. 388, 53 \m. Rep. .1 v p. People, 86 N. Y. 154, 40 Am. " Rep. 525 798 . Pi ople, 53 N. V. 172 ■ L, 598,901, 904 Orton i). McCord, 33 Wis. 205 316 Ortwein p. Com., 76 Pa. U4, 18 Am. Rep. 420 202, 635, 640, 771 pie, 2 Park. Crim. Rep. 72. ! v. Manhattan Co., 3 Cow. 621, 25 245, 419 . Tu big, 10 Oshkosh Gaslight Co. p. Germania F Ins. Co., 71 Wis. 454 Oskami b.) 17 L. R. A Overman p. Stab . 49 Ark. 364 Bow. (Miss.) 328 Owen p. Stat» .7- Ala." 125 "'-."""."..'.'.".7.494. 499 Ow< ii- -• 17 105 _ 239 352 _ 450 mil it Barb. 640 245 p. Id. mail-. 14 Me. 178 116 p. Kankey, 6 Mo. 133 32 p. Parker, 13 N. H.363, BOAm. Dec. 172 414 Palmer. Re, 18 Int. Rev. Rec. 84 944 ret Nat. Bank,4N.Y. Week. 80 p. People (III.) J ■ II 5*2 van. 21 Neb. 452, 59 Am. Rep. i; 931 state, 29 Ark. 248 594 Panhandle Nat. Hank p. Emery, 78Tex. 85 I mi.. 86 Pa. 268 635 • ople, 1 14 111. 505 . 2 Tex. App. 228 171 Park Ban . p. Tilton, 15 Abb. Pr. 384.... 261 rex. A pp. 351 .... 404 : Ala. 77, 53 Am. Ri p. . 67 Mil. 329 831 Parkin* v. Cobbitt, 1 I ar. & 1'. 282 . 44 --. 52 I'. S. 11 How. 373, 13 L. 229 i . - Hun. 623 721 . Lyman, 30 N. V. 1 3 862 Am. Rep. 193 i,44. 650,655, : '. - . 370 .661 439 J .... 584 , 569 Patt< rson v. Harden, 3 L. R. A. 529, 17 Or. 238. p. People, 12 Hun, 137 Pavev r. Pavey, 30 'Hun St. 600 Payne p. Com., i Met. (Ky.)370 p. State, 60 Ala. 8!)... - it., i.l Miss. 161 Peak p. state. 50 N. J. L. 179 Pease p. Cole, 53 Conn. 53, 55 Am. Rep. 53 v. Smith, 61 N.T. 477 Peck v. Chouteau. 91Mo.l38.. p. Hibbard, 26 Vt.698, 62 Am. Dec. 605 P. Lake, 3 Bans. 136 p; State, 86 Tenn. 259 136,367, r. State, 5 Tex. App. till r. Valentine, 94 X. Y.569 p. Von Keller, 76 X. V. 604 Pedlej '.* Case, 1 Leach, C. L. Rep. 242 .. 1'eliiam /-. Page, 6 Ark. 535 l'elluni p. Stare. 89 Ala. 32 Pembroke p. AUentown, 41 X. H. 365... Penneld p. Carpender, 15 .Johns. 350 Pennington p. Gibson, 57 U. S. 16 How. 65, 14 L. eel. *47 Pennsylvania r. McFall, Add. Rep. 257. Pennsylvania R. Co. v. Brooks, 57 Pa. 343 v. Butler," 57Pa.* 335."".".* '.'.'."'.'.'.'.'.'.'. p. Zebe, 33 Pa. 318... ... People v. Abbott, 4 West ( toast Hep. 132 p. Abbot. 19 Wend. 192 P. Ah How, 34 Cal. 21S y. Ah Sing, 59 Cal. 400 193, 437, p. Ah Wee; is Cal. 237 p. Ah Yute, 53 Cal. 613 v. Aikin, 66 Mich. 481 r. Alivtree, 55 Cal. 263 _. p. Allen. 5 Denio, 76 v. Anderson, 2 Wheel. Crim. Cas. 398 v. Anderson, 44 Cal. 65 146, 569, r. Anthony, 56 Cal. 397 r. Arnold, 15 Cal. 476 578, r. Ashe, 44 Cal. 288 ._ 439, 598, v. Austin, 1 Park. Crim. Rep. 154. 191, v. Badgley, 16 Wend. 53 466,467,469,476, V. Baker, 3 Hill. 159 _. V. Baker, 96 X. Y.340 452. 454. 708, 710, 73S, v. Ball, 14 Cal. 101, 73 Am. Dee. 631 v. Barker, 60 Mich. 277 ... 491, 498, r. Barnes (Idaho) Jan. 25, 1886 p. Barnes, 4- < a 1.551. 77, p. Barnhart, 59 Cal. 381 V. Barrie. 49 Cal. 342 493, 494, V. Barry, 63 Cal. 62... p. Bartow, 1 Wheel. Crim. Cas. 381 r. Batting, 49 How. Pr. 392.194, 444, r. Beach, 87 N. Y. 508 r. Bealoba, 17 Cal. 389 r. Belencia, 21 Cal. 544 .193, 444, 624, p. Bell, 49 Cal. 4** Hows, 2 X. Y. Crim. Rep. 12 08, V. Bennett, 49 X. Y". 137. .140. 199, 239, 446. 476, 516, V. Bennett, 37 X. Y. 117, 93 Am. Dec. ^•"•1 490, r. Beno Ville. 3 Abb. N. C. 195.... V. Benson, C Cal. 221, 65 Am. Dec. 51 wj r. Biles. 5 West Coast Rep. 829.... v. Bill, 10 Johns. 95. 520, 13. Blakeley, 4 Park. Crim. Rer«. 176 p. Blanchard, 90 X. Y r . 314 V. Bodine, 1 Edm. Sel. Cas. 36 201, 292, 598, 868 173 114 771 361 536 535 424 224 200 53 104 377 577 103 100 7*9 253 684 101 418 53 191 108 417 242 536 821 504 752' 415 165 553: 594 s*:, 540 75* 5-.0- 579 601 328 477 401 893 732 499 840 208 284 525 795 837 450 260 448 559 746 064 606- 638 244 521 299 710 593 TABLE OF CASES. xiv People v. Bolanger. 71 Cal. 21 Boling. 83 Ca 1.380 .524, Bonney, 19 Cal. 426. V. Bo wen, 49 Cal. 654 V. Bowers, 79 Cal. 415 185,241,210,247. V. Bradt. 46 Hun, 445 v. Bm.lv. 5(3 N. Y. 182 927. 17. Brasde. 88 N. Y. 585, 42 Ara. Rep. 269 V. Bransby, 32 N. Y. 525 245,259,4 V. Brewer. 27 Mich. 134 820, 854, v. Briggs. »*> How. Pr. 17. ..281, 410, v. Brotherton, 47 Cal. .388 v. Brown, 72 X. Y. 571, 28Am. Rep. 183 329,351, t. Brown. 59 Cal. 345 v. Brown, 76 Cal. 573 ..575, C. Brown, 34 Mich. 339, 22 Am. Rep. 531 V. Brown, 47 Cal. 447 V. Brown. 6 Park. Crim. Rep. 666 v. Buddensieck, 103 N. Y. 501, 57 Am. Rep. 766 176, 17. Burns. 53 Hun. 274 r. Bush, 68 Cal. 623. V. Rush. 71 Cal. 602 v. Bussey, 82 Mich. 49 V. Cahoon. 88 Mich. 456 V. Campbell. 30 Cal. 312. 59 Cal. 243, 43 Am. Rep. 257 v. Cannon, 61 Cal. 476 381 17. Camel, 2 Edm. S< .... 642 17. Carpenter. 4 X. Y. ( 'rim. Rep. 39 189 v. Carpenter. 102 X. Y. 250 20 I, 642 v. Casborus, 13 Johns. 351 617 y, 65 Cal. 261 190 7, 96 X. Y. 115 .' i v. Casey, 72 X. Y.394.. 331 . v. Caton, 25 Mich. 392 776 7-. Chapleau, 121 X. Y. 266 488 v. Cheekee.61 Cal. 404 149 v. Cheong Food Ark. til Cal. 527 .. 20 v. Christman, 66 111. 162 861 r. Chung Ah Chue, 57 ( 'al. 567 382 V.Cignarale.llON. Y. 23 771 v. Cipperly, 101 N. Y. 634, 37 Hun, 319 455, 4:6 v. Clark. 7 X. Y. 385 191, 448 v. Clark. 33 Mich. 112 217. 820 V. Clark. 102 X. Y. 735. 347 v. Cleveland, 49 Cal. 577 195 r. (lews. 57 How. Pr. 245 413 17. Cline. 74 Cal. 575, 83 Cal. 374.344, 752 17. Clough, 73 Cal. 348 516 v. Clough, 17 Wend. 351, 31 Am. Dec. 303 719 r. Coffman, 24 Cal. 233 635, 636 17. Cole. 43 X. Y. 508 &56 17. Cole, 4 Park. Crim. Rep. 35 607 v. Coleman, 1 N. Y. Crim. Rep. 3 ..641,673 17. Collier. 1 Mich. 140 862 17. Collins, 48 Cal. 277 415 17. Com., 43 X. Y. 508 357 V. Conger, 1 Wheel. Crim. Cas. 448 ....707, 71H V. Connor. 12*5 X. Y. 278 238 17. Conroy. 97 X. Y. 62.30, 210, 405. 422.739 v. Cook. 8 N. Y. 67 335 v. ( '. iilun, 56 X. Y. 363, 15 Am. Rep. 429 77, 209, 712 v. Costello, 1 Denio, 83 .506, 514 v. Cotta, 49 Cal. 169 44s v. Coughlin, 65 Mich. 704 569 17. Courtnev, 94 X. Y. 190 346, 793 v. Courtney, 28 Hun, 593 476,510,511,901, 904 17. Crandon, 17 Hun. 490 V. Crapo, 76 X. Y. 288, 32 Am. I 302 329, 351, 376 People v. Crissie. 4 Denio, 525 702 17. Cronin, 34 Cal. 202. 203 546 r. Cross, 135 X. Y. 536 937 B.Croswell, 3 Johns. Cas. 202... 881, 893 v. Crowley, OCX. Y.234. 816 17. Cruger, 102 N. Y. 510, 55 Am. Rep. 830.. 738, 740 V. Curtis. 50 X. Y. 321, 10 Am. Rep. 483 924 17. Cunningham, 6 Park. Crim. Rep. 398 553 0. Dam-. 59 Mich. 552 245 v. Darr, 61 Cal. 544 357 r. Davis, 64 Cal. 44" i 44"i 17. Davis, 1 Wheel. Crim. Cas. 230 631 17. Davis, 56 X. Y.95 401. ■">- . 17. D;i\ is, 21 Wend. 309. 506,511,514, 516 17. De F( .re. 64 M ich. 693 ... v. DeGrafl, 6 X. Y. S. R. 412 132 v. Deniston, 17 Wend. 312 62 v. Dei roit Sup. Ct. Judge, 40 Mich. 730 931 V. Devine. 46 Cal. 45 354 «. Dick, 32 Cal. 216.. 141 r. Dickie. 62 Hun. 400 778 r. Dishler, 4 X. Y. Crim. Rep. 188 79 v. Divine. 1 Edm. Sel. Cas. 594 191 17. D 1. 44s 269 u. Doe, 1 Mich. 451.. v. Dohring. 59 X. Y. 374, 17 Am. Rep. 349.. 419, v. Dolan, 9 Cal. 576 v. Donnelly, 1 Abb. Pr. 459 520 v. Donohue, 84 N. Y.438 934 v. Douglass, 4 Cow. 26 253 v. Dowling, 84 X. Y. 478 132, 328 V. Driseoll, 107 N. Y. 414.. 262 r. Druse, 5 X. Y. Crim. Rep. 10 ... 5 ? v. Dutl. 65 How. Pr. 365... r. Dumar, 1 6 X. Y. 505. ...723, 7 t>.Dve,62 Cal. 523 V. Dvle, 21 X. Y. 578.. 30 v. Earnest. 45 Cal. 29 v. Eastwood, 14 X. Y. 566. r r. Eckert, 2 X. Y. Crim. Rep. 17 351 17. Emerson, 20 X. Y. S. R. 18 511 17. Enoch. 13 Wend. 176. 27 Ara. Dec. 197 191. i v. Elliott, 5 X. Y. Crim. Rep. 204 509 17. Elliott, 106 X. Y. 288 514, 873, 374, .-77 1?. Elliott, 90 i al.586 17. Estrada. 53 Cal. 601 238 17. Evans, 40 X. Y.l 22 17. Evans, 122111.384... 906 t7. Everhard t, >4 X. Y. 294 511, 514, 779. 873. 874, 877 17. Faber, 92 X. Y. 146, 44 Am. Rep. 357 s "4 r. Farrell. 31 Cal. 576. 45a 17. Farrell, a> Cal. 316 50S, 52; 17. Fenwick, 45 Cal. 287.. r. Ferris. 55 Cal. 588 194. 44-! ». Few. 2 Johns. 290 -l'^ 17. Finley, 38 Mich. 482.. 431, 437,44 v. Finnegan, 1 Park. Crim. Rep. 147..... - --- 374 17. Fish, 125 X. Y. 136 333 17. Flvnn. 73 Cal. 511... 19 17. F< >ley, 9 X. Y. S. R. 24 17. Fong Ah Sing. 64 Cal. 253. ...5 17. Fong Chin-. 78 Cal. L69... 344 c. Fox, 121 X. Y. 449.. - 492 V. Francis. 38 Cal. 183 ....165, 269 r. Freel, 48 Cal. 136 148 v. Fuller, 2 Park. Crim. Rep. 16. 163,621, 626 ». Gage, 62 Mich. 271 830, 835 17. Garbutt,17 Mich. 9, '.'7 Am. Dec. 162 26, 577. 601,621, 635, 17. Gardiner, 6 Park. < Irim. Rep. 158 60 v. Gardiner, 2 Johns. 177 741 r. Gass iway, 23 Cal. 51 733 xlvi TABLE OF CASES. . Say, r n. v. 881. v. Gelabert, 38 Cal. 663 ml. L9 Mini, !H tohell, 8 Mich. (96 D. dii.!.-. BS v Jf. m Hblln, 1 L. K. A. 757,115 N.Y. v. Gilkinson, i Park. (rim. Hep. 26 r. Gillian, 50 Hun, 36 . Glober, 71 Mich. 808 r r. Goldenson, 76 Cal. ■;•">- 119, o. Gonzales. 33 N. Y. BO 259,404,418,419, !•. Gonzales, 71 Ca). 569 v. Q Iwin, 18 Johns. 187 612, D. Goslaw, 78 Cal. 323 i . Graham. 6 Park. Crim. Rep. 135 v. (ii i\ es, 5 Park. Crim. Rep. 154 . r. Graves, 18 < '"In. — v. Gray, 66 Cal. -71 r. Gray, 61 Cal. 164, 14 Am. Rep. 549 i-.(.< - N. Y. 301 v. Griffin, 38 How. Pr. 475 o. Grim, 3 N. V. Crim. Kep. 317 D. Guidici, 100 X. Y.507 V. Hall, 48 Mich. 482, 42 Am. Hep. 3(1, r. Hall, 6 Park. Crim. Rep. 642 r. II;. Hi. lav.:. Utah, 467.. i. Hamblin, - - Cal. 101. v. Marc .",7 Mich. 506 c. Harriden, 1 Park. Crim. Rep. 344 839, v. Harris. 29 Cal. 678 ....194, . .1 irris (N. Y.) Jan. 17,1893 o. Iliiuii, 44 Cal. 96 ... v. Baynes, 55 Barb. 450, 38 How. Pr. 369 _ 419,511,516, v. Haynes, 14 Wend. 546, 28 Am. Dec. 530.. 699, v. Beine,8 X. V. Leg. Obs. 139 .... r. Renderson, 28 Cal. 465 r. Henssler, 18 Mich. 49 700, r. Mick-. 79 Mich. 457 v. Hisli p, 77 \. Y. 335.. o. Hoin.62 i !al. 120, 45 Am. Rep. 651 r. Holbrook, 13 Johns. 90 v. Holselder, 5 N. Y. Crim. Rep. 179 o. dooghkerk, 96N. Y. 149 147, o. Hopson, 1 Denio, "4 72, r. Horton, 64 X. Y.610. r. Hovey, 29 Hun, 382. 219,244,284, 285, V. Howard, 50 Mich. 241, 73 Mich in •'-•* 'J- Huihut. i Denio, 133 Rill,309 .607, 813, 819, 831, Humphrey, 7 Johns. 314 804 806, Hylcr. 2 Park. Crim. Ken. 5 ; Cal. 115 Irving, 95 \. V. 541" \i .. 6 Cal. 207 i. Ml X. V. ;>:2 - . 3 Park. Crim. Rep Jacobs, 49 Cal. 384. . 372, Ja< ma , H :; N. V. L82 .477, 511, Jaurez, I ich. 321 - 74,293,838, Jim Ti, 32 Cal. 60 . Johnson, 46 Hun. 667 Johnson, 1 Park. Crim. Rep. Johnson, 57 Cal. 571 Johnsoi . Johnson, 4 X. Y. i rim. Rep •| Mich. 215 II i al. 565 Jon< -. 99 V V. 667 146, S33,:835 .-09, 70.. 874, 844, 496, 176, :."..! L91" 196, V.i I .77, 57 5, People v. Jordan, 66 Cal. 10 70O v. Josephs, 7 Cal. 129 607 v. Josselyn, 39 Cal. 398 87a r. Kane. 14 Abb. Pr. 15 869 v. Kearney, MO N. Y. 188 867, 877 v. K< illey, 94 X. Y. 520 181 V. Kelly, 46 Cal. 357 2U6 V. Kelly, 24 N. Y. 74 297, 303, 306, 307, 313, 475 V. Kelly, 6 Cal. 210 408 v. Kemler, 119 N.Y. 580 771 V. Kendall, 25 Wend. 399, 37 Am. Dec. 240 721, 746 v. Kennedy. 32 N.Y. 145. ...476, 51(1, 544 0. Kenyon^S Park. Crim. Rep. 286 854 0. Kerr, 6 N. Y. Crim. Rep. 406 511 r. Kerrigan, 73 Cal. 222.. 677 v. Kibler, 106 N. Y. 321.. 455 V. King, 2 Cai. 98 203 v. Kirby, 1 Wheel. Crim. Cas. 64... 607 v. Kleim, 1 Edna. Sel. Cas. 13 642, 652,659,677 v. Knapp, 42 Mich. 267, 36 Am. Rep. 438 254 V. Knapp, 26 Mich. 112.. ^ 529 v. Knapp, 1 Edm. Sel. Cas. 177 539 V. Koehler, 5 Cal. 72 160, 164 v. Kohler, 49 Mich. 324. 239 v. Laiuente, 6 Cal. 202 408 v. Lake, 110 N. Y. 61 842 v. Lamb, 2 Keyes, 371 587, 58S, 598,600,607 V. Larned, 7 N. Y. 448 688 v. Lattimore, 86 Cal. 403 688 v. Lawton, 56 Barb. 126 511 V. Lee, 17 Cal. 76 529 v. Lee Chuck, 78 Cal. 317 254 v. Lenon, 79 Cal. 626 238 v. Levine, 85 Cal. 39 424 v. Leviston, 16 Cal. 99, 76 Am. Dec. 505 _ 241 v. Lewis, 36 Cal. 531 239- v. Littlefield, 5 Cal. 355 408 V. Long, 43 Cal. 444 500- v. Long, 44 Mich. 299 711 v. Luke, 27 N. Y. Week. Dig. 51... 87 V. Lyon. 27 Hun, 180 456 V. Lyons, 110 N. Y. 618 771 v. McCallain, 5 N. Y. Crim. Rep. 143 511 V. McCann, 16 N. Y. 61, 69 Am. Dec. 642 190, 245, 259, 422, 426, 437, 440, 636, 638, 660, 678 V. McCoy, 45 How. Pr. 216 691, 692 v. McCrea, 32 Cal. 98 501 v. McDonnell, 47 Cal. 134. . .635, 636, 641 V. McDonald, 43 N. Y. 61 .730,736, 740, 746, v. McFarland, 8 Abb. Pr. N. S. 57.. 660,672,673,677 v. MeGee, 1 Denio, 19 289, 833-835 v. McGinty, 24 Hun, 64 745 V. McGloin, 91 N. Y. 242 469,476 v. McGuire, 45 Cal. 57 276 v. Mclnerny, 5 N. Y. Crim. Rep. 47 189 v. McKay, 18 Johns. 212 203 v. McKenney, 10 Mich. 54 67 v. McLane, 60 Cal. 412 276 V. McLean, 84 Cal. 480 415 v. McManon, 15 N. Y. 384 488 v. McNair, 21 Wend. 608 290 V. McWhorter, 4 Barb. 438 29 V. Manyano, 29 Hun, 259 240 v. Marble, 38 Mich. 125. _ 434 0. Markham, 64 Cal. 157, 49 Am. Rep. 700 363 v. Marseiler, 70 Cal. 98 264 V. Mather, 4 Wend. 229 . . 296, 297, 300, 301, 306, 824 V. Mayes, 06 Cal. 597, 56 Am. Rep. 126. 826, a35 V. Mead, 50 Mich. 228 693 TABLE OF CASES. xlvii People v.Menken, 36 Hun, 91, 3 N.Y. Crim. Rep. 233.... v. Meseersmith, 57 Cal. 575 V. Meyer, 75 Cal. 383. 340, V. Millard. 53 Mich. 63 149, v. Miller, 2 Park. Crim. Kep. 197 .. v. Miller, 33 Cal. 99 v. Millgate, 5 Cal. 127 V. Mills, 98 N. Y. 176 v. Millspaugh, 11 Mich. 278 v. Mitchell, 45 Barb. 212 v. Mitchell, 62 Cal. 411 183, v. Mitchell. 64 Cal. 85 269, 382, V. Moett, 23 Hun, 60 v. Moudon. 103 N. Y. 211, 57 Am. Hep. 709 v. Montgomery, 13 Abb. Pr. N. S. 209.. 500, 641,612, v. Moore, 65 How. Pr. 177 v. Moore, 37 Hun, 84 708, v. Morine, 54 Cal. 575. V. Morine, 61 Cal. 367 v. Morrison, 1 Park. Crim. Kep. 625 ..419, 813,814, v. Morrow, 60 Cal. 144 .288, V. Morse, 3 N. Y. Crim. Kep. 104 .. v. Murphy, 45 Cal. 137 352, V. Murphy, 1 N. Y. Crim. Kep. 102 v. Murray, 85 Ca-1. 361 v. Myers,2 Hun, 6 V. Myers, 20 Cal. 518 v. Naughton, 38 How. Pr. 430 v. Nevins, 1 Hill, 158 v. Newman, 5 Hill. 295.355, 382, 384, v. New York County Jail warden. 100 N. Y.20 v. New York County Justices, 10 Hun. 224 v. New York Hospital, 3 Abb. N. C.229. v. New York Police Comrs., 39 Hun, 510... v. Nicliol, 1 Fost. & F. 51— v. Nichol, 34 Cal. 211 V. Noelke, 94 N. Y. 137 350, v. Noyes(N. Y.) N->v. 1876 v. Nyce, 34 Hun, 2! 8 425, V. O'Brien, 66 Cal. 602 v. Odell, 1 Dak. 203 v. Ojrle, 104 N. Y. 511.. v. O'Neill, 112 N. Y. 363 V. O'Niel, 109 N. Y. 267 v. Ontario Poor Overseers, 15 Barb. 290 859, V. Ostrander, 18 Iowa, 435.. V. O'Sullivan, 104 N. Y. 481, 58 Am. Rep. 530 v. Over & Terminer Ct., 36 Hun, 279... V. Oyer & Terminer Ct. 83 N. Y. 436 107, 320, 330, 347, 376, v. Padillia, 42 Cal. 536 v. Palmer, 43 Hun, 407 v. Palmer, 109 N. Y. 113 v. Parr, 5 N. Y. Crim. Kep. 34 v. Parton, 49 Cal. 632. v. Pease, 27 N. Y. 45 v. Penhollow, 5 N. Y. Crim. Rep. 41 v. People's Ins. Exch. 2 L. K. A. 340, 126 111. 466. v. Perkins, 1 Wend. 91 160, v. Perry, 8 Abb. Pr. N. S. 34 v. Petmecky, 99 N, Y. 421.. 113, 224, v. Petrea, 92 N. Y. 12S. V. Phelps, 72 N. Y. 334 D.Phillips, 42 N. Y. 200 v. Pbipps, 39 Cal. 326 439, V. Pierpont, 1 Wheel. Crim. Cas. 139 v. Piuckney, 51 N. Y. S. It. 310 .... v. Pine. 2 Barb. 57:! 636, v. Pinkerton, 79 Mich. 110 v. Pinkerton, 17 Hun, 199..929, 933, People v. Pitcher, 15 Mich. 397 219 . Plath, 100 N. Y. 590, 53 Am. Rep. 236 - . .421, 476, 510, 513, 873, 874, 877 . Pool, 27 Cal. 572 447 . Porter, 2 Park. Crim. Rep. 14.. 476,621 . Poucher, 1 N. Y. Crim. Rep. 544 738 . Powell, 11 L. R. A. 75, 87 Cal. 348 582 . Powell, 63 N. Y. 370.. 904 . Quant, 2 Park. Crim. Rep. 410.. 425 .Quick, 58 Mich. 324 245 . Quin, 1 Park. Crim. Rep. 340.... 194 . Quin, 50 Barb. 128 813, 814, 817 . Rae, 66 Cal. 42:;, 56 Am. Rep. 102 706 . Knina, 45 Cal. 292 598 . Ramirez, 56 Cal. 533, 38 Am. Rep. 73.... 378 .Rand, 41 Hun. 529 916 . Rando, 3 Park. Crim. Rep. 336. -. 72,131 . Randolph, 2 Park. Crim. Kep. 174 832 . Kathbun, 21 Wend. .509.. .501, 776. 777 . Reavey, 38 Hun, 418 295,350 . Rector, 19 Wend. 569 ....157, 159, 578 . Reich, 110 X. Y. 660 771 . Restell, 3 Hill, 289 381, 394, 396 . Restenblatt, 1 Abb. Pr. 268.. 411, 412 . Richards, 5 N. Y. Crim. Rep. 355 753 . Ricker, 7 N. Y. Crim. Rep. 22... 511 . Riley, 15 Cal. 48 81 . Risley, 1 N. Y. Crim. Kep. 492 .. 161 . Roberts, 6 Cal. 214 _ 607 . Robertson, 1 Wheel. Crim. Cas. 66 499 . Robinson, 2 Park. Crim. Rep. 235 190 . Robinson, 86 Mich. 415 340 . Robinson, 1 Park. Crim. Rep. 649 ....426,442,621, 626, 636 . Robinson, 19 Cal. 40.. 498 . Robles, 34 Cal. 591. 292 . Roderigas, 19 Cal. 9. 880 . Rodrigo, 69 Cal. 601 44U . Rodriguez, 10 Cal. 50 504 . Rodundo. 44 Cal. 541 415 . Rogers, 18 N,Y.9, 72 Am. Dec. 481 193, 444, 62l, 622, 624, 757 . Rolfe, 61 Cal. 541 481 . Rozelie, 78 i ai. B4 344 . Rugg, 34 Hun. 632 374 . Rulloff, 3 Park. Crim. Rep. 438. ! 468, 496 . Runjje, 3 N. Y. Crim. Rep. 85... 512 . Russell, 46 Cal. 121 348 . Ryland, 97 N. Y. 126 511 . Safford, 5 Denio, 112 373 . San Martin, 2 Cal. 484 240 . Sehenek, 2 Johns. 479 741 . Schry ver, 42 N. Y. 1, 1 Am. Rep. 480 422, 420, 437, 636 . Schweitzer, 23 Mich. 310 211, 293 . Scoggins, 37 Cal. 676, 683.577, 579, 594 . Sharp, 107 N. Y. 427 73, 207, 312 . Sharp, 5 N. Y. Crim. Rep. 388... 511 . Shattuck, 6 Abb. N. C. 34 410 .Shaw, 63 N. Y. 36.. 537 . Sheldon, 68 Cal. 434... 190 . Sherman, 103 N. Y. 513 325, 511 , Shulman, 80 N. Y. 373, note 779 Simpson, 48 Mich. 474 575 Skeeham, 49 Barb. 217 370 Sligh, 48 Mich. 54 352 Smith, 104N. Y.491 74 Smith, 15 Cal. 408 ... 504 Smith, 28 Hun, 626 505, 507 , Smith, 5 Cow. 258 729 Sprague, 2 Park. Crim. Rep. 43 .... 642,674 Snuire, 3 N. Y. S. R. 194.. 394 Squires, 49 Mich. 487 Standisb, 6 Park. Crim. Rep. Ill 885 Sb in, 1 Park. Crim. Kep. 202.... 404 xlviii TABLE OF CASES. People v. .(•!_-. 82 Bow. Pr. 48 409 Stokes. 8 X. Y. Crim. Rep. 382.. 476, 511, 559 Stoke-. 58 V Y. 1-4 588 Stott, t N. V. (run. Rep. 306 ... 895 Stout, 4 Park. dim. Rep. 106 .. 66 Stout, 3 Park. Crim. Rep. 670 .. 317 ■. 30 Col. 15] .488,653 Stubeavoll, 62 Mich.329. ....434, 439 Sullivan, 7 N. V. :i% l'.'l. 572. 573, 593 Sullivan, 4 X. V. Crim. Rep. 197 893 Bully, :> Park. Crim. Rep. 143... 703 Sutton, 7- Cal. 243 344 Sweeney, 55 Mich. 586 450 Sweeney, 133 X. Y.609 607 Taylor, 36 Cal. 255 441 Taylor.3 Denio, 91 y, '.'7 Mass.50 — 709 Thayer, 1 Park. Crim. Rep. 595 19 Thomas, 9 Mich. 314 346 Thomas, 23 N. Y.321 ....719, 720 Thomas, :> Park. Crim. Hep- '■' Thompson, 41 N. Y. 6 66 psoD, -i I'd. 598 . 3 Park. Crim. Rep. 256 '.ml Thomsen, 3 N. Y. Crim. i. p. 582 5] I Thornton, 71 Cal. 488. 206 Thrall, 50 Cal. 415 - 468 Thurston, 5 Cal. 69 203 I.. R.A.669, 131 X. Y. 651 347 Tierney, 67 Cal. 54 - ... 831, 835 Titherington, 59 Cal. 598 752 Tompkins, 1 Park. Crim. Rep. 701,706,710 Tonielli.81 Cal. 275 .... B92 send, 1'! Abb. X. C. 169... 916 Travis, 56 Cal. 251 594 Treadwell, 69 Cal. 226 14ti Tuthill,36 X. Y.431... 798 Tyrrell, 3 N. Y. Crim. Rep. 1!:.' . 170 Van Alstine, >7 Mich. 09 299 Vane, 1'.' v\ end. 52 607 Yan Hmjtcr. 38 Hun, 168 607 Van Wyck, 2 Cai. 334 Vermilyea, 7 Cow. 369. ..162, 165, 394 Videto, 1 Park. Crim. Rep. -. . 477. 546 Wakely, 62 Mich. 298.. ..211, 700, 710 Walki r, 5 City Hall Rec. 137. . 631 Wallin, 55 Mich. 497 293 Waltz, 50 How. Pr. 204 642 Walworth, 4 X. Y". Crim. Rep. 355 042 Ward, 4 Park. Crim. Pop. 516 Ward,3N. Y. Crim. Rep. 483 ... 485 rvogle, 77 Cal. 173.. .. 700 Wentz, 37 X. Y. 309 493, 5 Wheeler, 60 I al. 581 145, 147, 149 Whipple, 9 Cow. 707 White, 53 Mich. 537 White, 24 Wend .539 .. 204 It Wend. Ill 323, 418, 599 White, 22 Wend. 167 ...405, 739 White,62 Hun. 114 774 4J-6 3 Hill. 214... 194,245 Willett, 1 How. Pr. X. S. 197 101 WUley,2 Park Crim. Rep. 19 621 William?. l3Cal. 344 21, 024 Williams, Z 223, 476, ' Williams, 35 Hun. 516 .... William-. 19 Wend. 377.. 521 Williams, 32 Cal. 280 .. 569 Williams, 4 Hill, 9, 40 Am. Dec. 702. 710 Willi! ... 7;ii Q, 109 X. Y. .if.") . 771 i, 55 Mich. 506 ... I 265 People v. Wilson, 3 Park. Crim. Rep. 199 46y, 473, 478 v. Wilson, 49 Cal. 14 635 v. Wolcott, 51 Mich. 612. ...406. 416, 493 V. Wood, 3 Park Crim. Rep. 681.. . 212, 214, 461, 700, 714 V. Woodward, 31 Hun, 57 728. 729 r. Wreden, 59 Cal. 392 321 v. Ybarra, 17 Cal. 166 529 v. Young, 31 Cal. 563 204 v. Zeiger, 6 Park. Crim. Rep. 356.. 867 v. Zimmerman, 4 N. Y. Crim. Kep. 272 225 Pepoon o. Jenkins, 2 Johns. Cas. 119 55 Perkins v. Hayward, 124 Ind. 445 249 Perry r. Gibson, 1 Ad. i: El. 32.. 52 Pers< 'us r. MeKibben, 5 Ind. 261, 61 Am. Dec. 85 258 V. State, 90 Tenn. 291 .24, 25 Perteet v. People. 70 Til. 171... 237. 259 Peterv. Star.-. 4 Stnedes & M. 31 496. 504 Peterson v. Morgan, 116 Mass. 350 602 v. State, 47 Ga. 524 276, 290 v. State. 50 Ga. 142 579,581 V. Toner, 80 Mich. 350 584 Petty v. People, 118 111. 157 237 Pl'omer v. People, 4 Park. Crim. Rep. 588 194 Phelps v. People, 72 N. Y. 349 404, 885 Phene, Re, L. R. 5Ch. App. 139 803 Philadelphia & T. R. Co. v. Stimpson, 39 U. S. 14 Pet. 463. 10 L. ed. 543 417 Philadelphia Bank v. Officer, 12 Serg. & R. 49 97 Phillips r. Com., 2 Duv. 328 572, 573 r. Gregg, 10 Watts. 158 808 v. People. 57 Barb. £54 462, 751 r. State. 29 Ga. 105 469 v. State, 9 Humph. 246, 49 Am. Dec. 709 834 Pickard v. Collins, 23 Barb. 444 296, 297, 301, 361, 370 Pickens v. State, 6 Ohio, 274 174 Pierce v. Goldsberry, 35 Ind. 317 502 r. Hoffman, 24 Vt. 527 209 V. State, 13 N. H. 536 141,189 Pierson r. People, 79 N. Y. 424, 35 Am. Rep. 524 213, 217, 615, 767 v. People, 18 Hun, 253 766 v. State, 12 Ala. 153. 141 Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558 .194, 444, 021, 624, 626 Pike v. Evans, 15 Johns. 213 248 Pilger v. Com., 112 Pa. 220 _ 29 Pingry v. Washburn, 1 Aik. (Vt.) 204 155 156 Pinkh ami' Cnekelf, 77 "Mich! 265.7. V. .. .' 86 Pinney v. CahHl, 48 Mich. 584 145,147 Piper v. White, 56 Pa. 90 414 Pirtle v. State,9 Humph. 663 193 444, 624 757 Pitman v~. State," 22 A rk."3547. ...'....! 570,' 594 Pitt u. Davison, 37 N, Y. 239 205 Pitts r.Stat.'. 43 Miss. 472 405,469,476 Place o. Minster, 65. N. Y. 105 904 . State, 121 Ind. 433 141 - r. State, 1 Tex. App. 673 441 Plath v. Minnesota Farmers Mut. F. Ins. Co., 23 Minn. 479,23 Am. Rep. 697 83 Plato D.Kelly, 16 Abb. Pr. 188. 331 v. Reynold*. 27 N. Y. 586 342, 370 Piatt r. Piatt. 5 Daly, 295. 850 Pleasant.r. State, 15 Ark. 024... -. 290.297.301,378,826 Pleasants r. Fant, 89 D. S. 22 Wall. 120. 22 L. ed. 782 229,271 Poage r. state. 3 Ohio St. 229 616 Poe u. Dorrah, 20 Ala. 289, 56 Am. Dec. 196 27 c.State, 10 Lea, 673... 771 Poertner v. Poertner, 60 Wis. 614 223 TABLE OF CASES. xlix Polin v. State, 11 Neb. 510 439 Polk v. Butterheld, 9 Colo. 333 53 v. State, 19 Ind. 170, 80 Am. Dec. 382 141.6*5,638 V. State, 40 Ark. 482, 48 Am. Rep. 17 820,880 Poller v. Lennox Iron Works, 4 Allen, 329 238 Pollock v. Pollock, 71 N. Y. 137. Ul 250, 373. 559, 848. 849, 851 Pomeroy v. State, 94 Ind. 96 833 Pond v. People, 8 Mich. 160 570, 573, 765 Pontius 0. People, 82 N. Y. 339. .126, 217. 258 Poole r. Perritt, 1 Speer, L. 128 296, 297 i Pope v. State, 22 Ark. 372 Portr. Port, 70 111. 484 476,511, 364 Porter v. Campbell. 2 Baxt. 81 25 v. Judson, 1 Grav, 175 97 v. Millard, is Ind. 502.... 195 r. Porter, 3Swab. & T. 796 68 V. State, 55 Ala. 95 493,499 V. Throop, 47 Mich. 313 182 Portis v. State, 23 Miss. 578 203 Possett r. Miller, 3 Sneed, 76 364 Post v. Kendall County Suprs., 105 U. S. 667, 26 L. ed. 1204 56 Potter v. State, 85 Tenn. 88 579 Pound v. State, 43 Ga. S8 352 Pounders v. State, 37 Ark. 399 426 Powell r. Harper, 5 Car. & P. 590 131 v. State, 19 Ala. 577, 52 Ala. 1 576,578,580.594 v. State, 17 Tex. A pp. 345 616 v. State, 88 Ga. 32 737 Powers v. State, 87 Ind. 145 440 Prather v. Com., 85 Va. 122 243 v. Rambo, 1 Blackf. 189 260 Pratt v. Norton, 5 Thorn p. & C. 8 45 r. Richards Jewelry Co., 69 Pa. 53. 70 v. State, 56 Ind. 179 188 Pray v. Garcelon, 17 Me. 145 230 Presbury v. Com.. 9 Dana, 203 252 Presser v. State, 77 Ind. 274. 569 Preston v. state, 8 Tex. App. 30 552 PrfMiit r. People, 5 Neb. 377 522 Pilce v. State, 190hio, 423.. 495 Pnadvr. Dodd, 4 Ind. 84 260 Pridgen r. State, 31 Tex. 420 594 Priest v. Groton, 103 Mass. 530. 463 V. State, 10 Neb. 393 469,476 Priestman v. United States, 4 C. S. 4 Dall. 28, 1 L. ed. 727 53 Primm r. Stewart, 7 Tex. 183 22 Printer. Samo,7 Ad. & Ei. 627 340 Prindle v. Glover, 4 Conn. 266 78 Priner. Com., IS Pa. 103 164 Pritchett v. State. 22 Ala. 39, 58 Am. Dec. 250 577, 760 Proctor r. M'Call, 2 Bail. L. 298, 23 Am. Doc 135 **■* Pryor v. Com., 27~Gratt.~10i6".I™"II" 242 Puettr. Beard, 86 Ind. 104... 502 Pulliam v. State, 88 Ala. 1 534, 575 Pulver v. Hiserodt, 3 How. Pr. 49. ..165, 166 Putnam v. Putnam, 8 Pick. 433 864 v. Sullivan, 4 Mass. 45, 3 Am. Dec. 208 778 Puryear v. State, 28 Tex. App. 73 479 Queen t>.State,5 Har.& J. 232 371, 373 Queen's Case, The, 2 Brod. & B. 297 340, 359, 362, 903 Queeneru. Morrow. 1 Coldw. 134 365 Quimby v. Morrill, 47 Me. 470 455 Quinn v. State, 14 Ind. 589 371 Quinsigamond Bank v. Hobbs, 11 Gray, 250 363 D R. Radford v. State, 35 Tex. 15 737 Ratterty ,v. People, 66 111. 118, 18 Am. Rep. 601 621,626, 757 Railing v. Com., 110 Pa. 100 529, 531, 532 Railway Pass. Assur. Co. v. Warner, 1 Thump, ,5c C. addenda, 21 84 Rains r. State, 88 Ala. 91... 347,575 Ralph v. Brown, 3 Watte \- S. 395 43 Randel v. Chesapeake & D. Canal Co., 1 Harr. (Del.) 233 46 Ranney v. People, 23 N. Y. 413 703, 706-708, 710, 711 Rasberry v. State. 1 Tex. App. 664 569 Rawls v. State, 8 Smedes & M. 599.... 203, 255 Rawson v. Haigh, 2 Bin g. 99 80 V. State, 19 Conn. 295 408 Ray v. State, 50 Ala. 104 440 Raymond v. Richmond, 83 N. Y. 671 198 Raynes v. Bennett, 114 Mass. 424 69 Raynham v. Canton, 3 Pick. 295 _ 56 Rea v. State, 8 Lea, 356 546 Read v. Com., 22 Gratt. 924 ...243, 590 v. Decker, 67 N. Y. 182 70 Real v. People, 42 N. Y. 270, 55 Barb. 551 1531, 367, 626, 638 Rector r. Com., 80 Kv. 468 357 Redd i'. State, 69 Alai 355 496, 497 Redden v. Spruance, 4 Harr. (Del.) 267. 108 Keddin v. Gates. 52 Iowa, 210. _ 154 >■;. dford v. Peggy, 6 Rand. fci •» 706 V. Higgins »n, 1 » ar. i; K. 129 639,646,674 v. Hill. 5Ci E, C. C. 259 p. Hind, 8 Cox, C. C. 300 529, 53] o. Holden, 8 Car. & P. 609 407 v. Holloway, 1 Den. C. C. 376.. .727, 728 p. B St. A i . 788 291 I \. C ('. 411 713 v. Hughes, 1 Car. & K. 519 796 o. Jenkins, i I >'.«'. L91... ^'.4 p. Jenuison, Leigh & C. 157.. 708 v. Johnston, 2 Mood. C. C. 254 706 I). Jones, 4 L.T.N.S.154.. 836 p. Kenrick, 5 Q. B. 49 719 v. Langley, 3Salk.l90 p. Lavey, 3 Car. & K.26 793 v. F.aw. 2 F( St. & P. 836.... 077 p. Layton, 1 Cox, C. C. 149 674 p. Lee, 9 c, C. C. 304 706 p. Lee, Leic i & C. 309 708 p. Lefr >y. L. R.8 Q. B. 134 265 i. Lewis, 6 i ar. & P. 161 216 ■ . L. ,:. : C.C.196. 23,800 p. Mel irthy, 2 Car.& K.379 72 p. McNaghten. 10 Clark & F.200... ! i, o50, C77, 078 r. " r. V 1'. 641 816 p. Mead, 2 Ld. Raym. 927 691 p. Megson, 9 Car. .V P. 418 .. _ p. Mercer, 6 Jur. 243 834 p. Mills, 1 Dears. 6 B C. C. 305 .... 721 p. Moore, 3 Car. & R. 319 626 [uU - x, C. C. 526 525, 893 v. Muse • ..... ;\; v. Newton,2 Moo I.& I?. 503.805. -117, Nut r. N ir. a: K. 246 291 P. Oddy, 5 Cox, C. C. 210 -- . - 327, 700, 712-714 074, 677 r. < Irchard, - Car. & P. 565 131 P. Osborne, 1 Car. & M. 621 B34 v. 1 tulagbam, Jebb, C. C. 270 291 •verton, 2 Moo 1. c. C. 263 364 p. Oxford, 9 Car. & P. 525 -045, 650, 674, 077 v. Parish. 8 ''ar. & P. 94 525 v. Pearce, 9 1 ar. v P. 637 077 p. Perkins, 2 M I. C. C. 139 .. 291 p. Pickup, LO L. C. .1.310... 70S p. Prince, 13 Moak, Ens. Rep. 385 905 p. Rearden, 4 Fost. & F. 76 836 v. Rendle, 11 Cox, C. C. 209 365 p. Rhodes. 2 Ld. Raym. 886 169 p. Richardson, 2 Fost. \- !•'. 343 --.211, 743. 777 r. Richardson, SCox, C.C. u- ?00, 7H v. Riley, 16 Cox, C. C. 199 s^'5 Reg. v. Rosebuck, Dears. & B. C. C. 24.. 'til p. How ton, 1 Leigh. & C. 520. 10 1 ox, C. C. 25 ..602, 610, 611 V. Russell, 7 Dow. P. C. 0,1)3 265 v. Russell, Car. & M. 247 399 p. Selten, 11 Cox, C. C. 674 442 ■p. Simru(jnsto, 1 Cur. & K. 164 805,806,809 V. Smith, 8 Car. & P. 160 573 V. Smith. 1 Cox, C. C. J-'OO 631 v. Sprv, 3 Cox. C. C. 221 45 r. Stokes, 3 Car. & K. 185 674 v. Stubbs, 7 Cox, C. C. 48. 512 v. Taylor, 13 Cox, C. C. 77 1+6 V. The World, 13 Cox, C. C. 305 .... 882 v. Thomas. 9 Car. & P. 741 735 p. Tufts, 1 Den. C. C. 319. 314 p. Tylney, 18 L. J. M. C. 37 314 r. Upton, 1 Car. & K. 165. 806, 809 v. Vautfhan, 1 Cox, C. C. 80 674 ■p. Voke, 1 Rugs. & R. 531 326 v. Walker. 2 Mood. & R. 212 S33, 835 v. Walsh, 5 Cox, C. C. 115 3S0 v. Weeks, Leigh. & C. 18 72, 216 v. West, 8 Cox, C. C. 12 708 v. Wheatland, 8 Car. & P. 238 796 V. White, 4 Post. & F. 383 436 V. White, 2 Car. & K. 404, 2 Cox, C. C.210 773 ■p. Wiekham, 10 Ad. & El. 34 702 V. Wilson, 2 Car. & K. 527 777 ■p. Wood, 1 Fost. & F. 497 132 c. Wood, 5 Jur. 225 375, 605 Reggel. Ex parte, 114 U. S. 042, 29 L. ed. 250 .937. 938 Reich v. State, 53 Ga. 73, 21 Am. Rep. 265 203 Reid v. Reid, 17 N. J. Eq. 101 610 v. State, 50 Ga. 556 328 Reitzp. State, 33 Ind. 187 861 Remseu p. People, 43 N. Y. 6 599 Republic Fire lus. Co. v. Weido, 81 U. S. 14 Wall. 375, JO L. ed. 894 C8 Respublica r. Gibbs, 3 Yeates, 429, 4 U. S. 4 Da 11. 253, 1 L. ed. 822 301 p. Lac-aze, 2 U. S. 2 Dall. 118, 1 L. ed. 313 240. v. Newell, 3 Yeates. 414 789 v. Shaffer. 1 U. S. 1 Dall. 230, 1 L. ed. 115 257 Reviere p. Powell, 61 Ga. 30, 34 Am. Rep. 94 106 Rex v. All Saints, 6 Maule & S. 194 285 p. Appleby, 3 Stark. 33. 29 v. Arscott, 6 Car. & P. 408 773 v. Asterly, 7 Car. & P. 191 708 v. Atwood, 1 Leach, C. C. 464 506 V. Ball, Russ. & R. 132 218, 245 v. Barker, 3 Car. & P. 589 821, 823 v. Bartlett, 7 Car. & P. 832 501, 502 V. Birkett, 1 Russ. & R. 251 509 v. Bispham. 4 Car. & P. 392 v. Blandy, 18 How. St. Tr. 1118... 8, 560 v. Bootyman, 5 Car. & P. 300 68 p. Borron, 3 Barn. & A. 432 257 v. Bowman, 6 Car. & P. 101 013 V. Brooke, 2 Stark. 472 325 v. Broufrhton, 2 Strange, 1230 797 v. Burdett, 4 Barn. & Aid. 122 ...16, 467, 732 r. Burrow, 1 Lew. C. C. 238 674 V. Cabbage, 1 Russ. & K. 292.726, 727, 729 p. Clarke, 2 Stark. 241 .820, 822-824, 828, 833-835 V. Clewes, 4 Car. & P. 221 . ... 212 v. Cli vig-er, 2 T. R. 263 285 v. Codrington, 1 Car. & P. 661 703 V. Coveney, 7 Car. & P. 667 379 v. Crossley, 26 How. St. Tr. 218 8 -P. Culkin, 5 Car. & P. 121 401 V. Curwood. 3 Ad. & El. 815 68 -p. Dale, 7 Car. & P. 352 " 706- v. Davis, 6 Car. & P. 171 72, 700, 714 TABLE OF CASES. Rex v. Davison, 31 How. St. Tr. 217 .... 607 13. Dawlin, 5 T. K. 311 169 v. Deakin, 2 Leach, C. C. 862 746 v. Deering, 5 Car. & P. 165 501 13. Derrington, 2 Car. & P.418 498 v. Despard, 28 How. St. Tr. 846 524 13. Dickenson, 1 Buss. & K. 101 399 v. Doug-las, Mood. C, C. 102 706 v. Drake, 1 Lew. C. C. 25 808 v. Dutfin, 1 Russ. & It. 366 742 v. Duun,l Mood. C.C. 146 72.209,790,714 13. Edwards, 1 Kuss. & K. 224 613 13. Egerton, 1 Kuss. & R. 375 70, 209 13. Eggingtou, 2 Bos. & P. 503 526 V. Ellis, G Barn. & C. 145 70, 72, 208, 211, 288, 700, 714 13. Eriswell, 3 T. It. 722... 380 13. Erring-ton, 2 Lew. C. C. 142 380 13. Parrington, 1 Kuss. & It. 207.... 450 v. Fletcher, 1 Strange. 633 520 v. Flint, 1 Ituss. & It. 4150 720 v. Forbes, 7 Car. & P. 224 v. Foster, 6 ( !ar. & P. 325 v. Gardelle, 4 Celebrated Trials, 400 V. Gill, 2 Barn. & Aid. 204 v. Goodhall, 1 Russ. & R. 401. ..703, v. Grady, 7 Car. & P. 050 v. Hadfield, G7 Hans. Pari. Deb. 480 13. Hamilton. 7 Car. & P. 448 v. Hanks, 3 Car. & P. 419 13. Hsu-borne, 2 Ad. & El. 540 13. Hart, 7 Car. & P. 652 v. Harrie, 6 Car. & P. 105 13. Harris, 5 Barn. & Aid. 920 ";. Harrison, 12 How. St. Tr. 850... v. Harvey, 2 Ham. &C. 257 13. Hay ward, Csir. & P. 157 13. Hilditch. 5 Csir. & P. 299 13. Hill, 1 Kuss. & K.190 v. Hobson, 1 Lew. C. C. 261 ... 13. Hodgson, 3 Car. & P. 445 13. Hodgson, 1 Kuss. & K. 211 . . 822, v. Hogg, Car. & P. 170 13. Holden, 1 Kuss. & R. 154 13. Hughes, 2 Lew. C. C. 229 13. Hutchinson, 2 Barn. & C. 608 . 13. Jacobs, 1 Mood. C. C. 140 ....807, v. Jones, 2 Campb. 132 V. Jones, 31 How. St. Tr. 251 13. Kew, 12 Cox. C. C. 355 v. Killan, 21 How. St. Tr. 1085 .. . V. Kirkwood, 1 Lew. C. C. 103 13. Knill, 5 Barn. & Aid. 929 v. Laf one, 5 Esp. 155 v. Lara, 6 T. R. 505 13. Lloyd, 6 Car. &P. 393 13. Lloyd, 4 Car. & P. 23? 13. Lloyd, 7 Car. & P. 318 v. Long. 6 Car. & P. 179 13. Lynch, 5 Car. & P. 324 v. McDaniel, Post. C. C. 121 13. Maiden, 4 Burr. 2135 v. Martin, 6 Car. & P. 562 v. Mason, 1 Leach, C. C. 487 V. May, 1 Dougl. 193 13. Mayhew, 6 Car. & P. 315 13. Mead, 2 Barn. & C. 005 529. V. Mogg, 4 Car. & P. 364 V. Moore, 2 Car. & P. 236 13. Morflt, 1 Kuss. & K. 307 720, 13. Morris, 1 Kuss. & K. 270 032 v. Norwood, 1 East, 470 805, 807, 809 13. Owen, 4 Car. & P. 236 039, 631 v. Paine, 5 Mod. 163 380 u. Parker,7Car. & P. 825 708 ». Parsons, 1 W. Bl. 392 711.900 V. Pearce, Peake, 75. 70,884 13. Philp, 1 Mood. C. C. 204 442 03. Pippett, IT. R. 235 401 13. Pownell, 1 W. Kel. 58 898 t3. Ramsden, 2 Car. & P. 003 103 Rex 13. Rath wick, 2 Barn. & Ad. 039 .... 285 v. Roberts, 1 Campb. 399 .212, 700, 711, 714 13. Roddatn, Cowp. 672 274 13. Rosser, 7 Car. & P. 048. 276 13. Rowland, 1 Ryan & M. 401 521 v. Rudd, 1 Cowp. 332 500 13. Russen, 1 East, 435 827 B.Scaife, 1 Mood. & R. 551 536,537 v. Shakespeare, 10 East, 83 171 13. Shaw, Car. & P. 372.... 448 v. Sheen, 2 Car. & P. 635 616 13. Smith, 2 Stark. 208 380 13. Smith, 3 Burr. 1476 425 13. Smithies, 5 Car. & P. 332 501 13. Staffordshire, 6 Ad. & El. 99 50 v. Stannard, "i Car. & P. 673 COO 13. Stevens, 5 East, 244. 406 13. Stimpson, 2 Car. & P. 415. ...320, 327 13. Story, 1 Kuss. & K. 81 773 13. Stratton,21 How. St. Tr. 1045... 570 13. Swallow, 31 How. St. Tr. 907.... 509 v. Tannett, 1 Russ. & it. 351 171 13. Thatcher, T. Jones, .53. 379 V. Thomas, 7 Car. \- P. 345 498 13. Tinkler, 1 East, 381.. 245 13. Topham, 4 T. It. 127 882 13. Truman, 1 East, 470. 805,806, 809 13. Twyning, 2 Barn. & Aid. 385 _ 801,803 13. Warickshall, 1 Leach, C. C. 203. 490 13. Watson, 2 Stark. 116 8 13. Weltje, 2 Cam lib. 142 _ 898 13. Wbilev, 2 Leach, C. C. 983. . . .208, 327 13. Whitehead, 1 Car. & P. 67— .131,329 13. Wildey, 1 Maule & S. 188 613 13. Wilkes, 7 Car. & P. 272 516 13. Winkworth, 4 Car. & P. 444 459 13. Withers, 3 T. R. 429 893 13. Woodcock, 1 East, 350 380 13. Worsenham, 1 Ld. Raym.705 091 13. Wylie, 1 Bos. & P. N. K. 92 .209, 700, 714 13. Woodcock, 1 Leach, C. C. 500... 534,542 v. Tend, 6 Car. & P. 176 405 13. Young, 3T. R. 98 _ 708 Reynolds v. People, 41 How. Pr. 179 419,817 13. State, 68 Ala. 502 534 13. United States, 98 U. S. 145, 25 L. ed.244 354 Rhodes 13. State. 128 Ind. 189 309 Kice 13. Com., 102 Pa. 408 400 1). Des Moines, 40 Iowa, 638 194 13. Lnmley, 10 Ohio St. 596 22 13. Rice, 31 Tex. 174 801 Rich 13. Jakway, 18 Barb. 357 321 Richardson v. Burleigh, 3 Allen, 479 432, 803 13. Newcomn, 21 Pick. 215 115 13. Richardson, 1 Hagg. Eccl. Rep. 6 _ 854 13. State, 63 Ind. 192 217 13. State, 34 Tex. 142 851 Richie v. State, 58 Ind. 355 000 Richman 13. State, 2 G. Greene, 532. 296, 301 Richmond & D. It. Co. v. Childress, 3 L. R. A. 808, 82 Ga. 719 695 Rickabus 13. Gott, 51 Mich. 227 334 Rickerson u. State. 78 Ga. 15 193 Ricketts 13. Harvey, 106 Ind. 564 198 Ricklesu. State, 68 Ala. 538 017 Ridley t\ Gyde, 9 Bing. 349 80 Riehl 13. Evansvdle Foundry Asso., 104 Ind. 70. Riggs 13. Hatch, 16 Fed. Rep. 838 79 13. State, 6CoIdw. 517 546 V. State, 104 Ind. 201 748 Riley 13. Connecticut River It. Co., 135 Mass. 292 233 13. State, 95 Ind. 446 251 lii TABLE OF CASES. Ripon i-. Blttel 30 Wis. 614 145, 14* Rippey v. Friede, 88 Mo. 523 231 Bisk r. Stat.-, 19 [nd. LS2 861 Ritzman r. People, im III. 363 250 Rivara t). Ohio, 3 E. D.Smith,264 289 Rizzolo p. Com., 126 Pa. 54 - 201 Roach v. People. 77 III. 25 570 Robbv. Rackley, 23 Wend. 50 378 Bobbins d. Alton Marine F. [ns. Co., 12 Mo. 380 230 r. Smith, 47 Conn. 182 859 v. State, 8 Ohio St 131 530 Roberts, Re,24 Fed. Rep. 132 943 Roberts v. Allatt, 1 M I. & M. 192 921 c Burks, I. in. Sel. Cas. 411 108 v. Graham, 7:; U. S. 6 Wall. 578, 18 I., ed. 791 248 t>. Peoj le, 9 Colo. 158 L9, 160, 101,701 r. People, 11 Colo. 212 466, 507 r. People. 19 Mich. 101 626 ly,1161 . S. 80, 29 I,, ed. 544 933,943 v. State, 68 Ala. 156, 515 1358, 386,579.580, 59 1 ». State, 19 Ala. 526 408 r. State, 5 Tex. App. 141 536 D. State, 61 Ala. 401 732 Robertson v, State 4 Lea, 425 240 Robinson u.Mandell. 3 Cliff. 169 153 r. NeaL5T. B. Mon. 213 296 u. Shanks, 118 [nd. 125... 258 v. State, -4 Ind. 4 2 v. Mate, 12 Mo. 592 524 p. State, 21 Tex. App. 160 . 617 Roche v. Brooklyn C. & N. R.Co., 105N. Y. 294, 59 Am. Rep. 506 125 Rockwood v. Poundstone, 38 [11.199.... 370 Roddy r. Finnegan, 43 Md. 190 361 re v. Stat.-, 50 Ala. 102 13 Roe v. Day, 7 Car. & P. 698 M v. Harvey, i Burr. 2484 221, 691 Rogers < . Ritter. 7'.) U. S. 12 Wall. 317, 20 L.i'd. 417 113 State, 62 Ala. 170.. 578, 580 Rolfe r. Rumford,66 Me. 564.. 245 32 Pa.306, 22 Am. Rep. 758 750 Rollins v. state, 21 Tex. App. 148 45 Romaine t>. State, 7 [ud. 67 252 Romertze v. East River Nat. Bank, 2 ley, B2 it'll Root v. Lowndes, 6 Hill, 518, 41 Am. Dec. 762 . Rose v. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258 782 Roseborougb v. State, 43 Tex. 570 252 thai r. Mayhugh, 33 Ohio St. 155 22 v. Walker, Ul U. S. 185, 28 I., ed. ...79, -:;. 89, 92, 94 eeig v. People, 63 Barb. 634... 207, 419 trie, 2 Bond, 252 932 Ross v. Ackerman, 46 X. Y. 210 419 v. [nnis, 35 III. 187 . 743 v. Overton, 3 Cal. 309, 2 Am. Dec. 552 242 v. People, 5 Hill, 294 700, 738, 789 v. Ross, 129 Mass. 252 863 v. Mate, 74 Ala. 532 517 . Ala. 224 623 Both o. >tate. LO Tex. App. 27 174 Rouch v. Great Western R. Co., 1 Q. 1$. 51. 80 Bourko i'. Bullens, 8 Gray, 549 2:>0 rte, 7 Cal. 485... .... 303 Rowellv. Fuller, 59 Vt. 684 110, 111, 110,780 Rowley v. Bigelow, 12 Pick. 311, 23 Am. Dec.607.. 462 offin, 70 Me. 468 158 Biilo r. State, 19 Tn I. 298 010 BulolT v. People, 18 N. Y. 17!) ... 23,24,219, ' V. People, 15 X. Y. 213 153, 317 Runyan 13. Price, 15 Ohio St. 1, 80 Am. Dec. 459 25 D. State, 57 Ind. 80. 26 Am. Rep. 52 509,574,585, 758 Russell r. Coffin, 8 Pick. 14:; 007 c. Com., 78 Va. 400 771 t. Hudson River R.Co., 17 N. Y. 134 107,108 v. State, 11 Tex. App. 288 71 13. State, 68 Ga. 785 240 Rutherford v. rum., 2 Met. (Ky.)387... 290 Rutter, Re. 7 Abb. Pr. X. s. 67 945 Rutzen 13. Fair. 4 Ad. & El. 53 245 Ryan, Ex parte, 44 Cal. 555 403 Ryan v. Harrow, 27 Iowa, 491, 1 Am. Rep. 302 2.53 v. People, 79 N. Y. 594. 329, 375 r. People, 19 Abb. Pr. 232.. 601 Ryder v. Womb well, L. R. 4 Exch. 39.. 229,231 Ryerson r. Abington, 102 Mass. 526. 374 Safford v. People, 1 Park. Crim. Rep. 474.... 809,871 St. Charles r. O'Mailey, IS 111. 407. ...508, 893 St. Louis & I. M. B. Co. v. Silver, 50 Mo. 265 325,33!) Samu. State. 33 Miss. 347 409 Sanchez v. People, £1 N. Y. 147 371 Sanders v. Leigh, 2 Har. & McH. 380.... 224 Sanderson v. Caldwell. 45 N. Y. 398, 6 Am. Rep. 105 883, 888, 897 v. Osgood, 52 Vt. 309 110 r. Sanderson, 20 Week. Rep. 261... 68 Sanderson's Case, 3 Cranch, C. C. 638.... 230 Sandwell v. Sandwell, Holt, 2y5 97 Santissima Trinidad. The, 20 U. S. 7 Wheat. 338, 5 L. ed. 468 224 Sarbach v. Jones, 20 Kan. 497 288 Sargent v. People, 04 111. 327 239 r. Wilson. 59 N. H. 396 363 Sartorious v. State, 24 Miss. 602 150 Satterlee v. Bliss, 30 Cal. 507 281 Satterwhite v. State, Tex. App. 609.... 240 Saunderson v. Jndpe, 2 H. Bl. 509. 94 Sawyer v. Chicago & N. W. B. Co., 22 Wis. 403 19-< Saxon v. Whitaker, 30 Ala. 237 25 Saverf. Kitchen, 1 Esp. 210 46 Sayres v. Com., 88 Pa. 29 1 635, 640 Scarlett v. State, 25 Fla. 717 708 Schappner v. Second Ave. B. Co., 55 Barb. 497 227 Scheel v. Eidman, 77 111. 9)4.. 24 Schlencker v. State, 9 Neb. 241 193, 441 Schnecher v. People, 88 N. Y. 192 126 Schnier v. People, 23 111.17 139 Scholes v. Hilton, 10 Mees. & W. 15 265 Schoolcraft v. People, 117 111. 271 575 Schooler r. Asherst, 1 Litt. (Ky.) 216.... 171 SchoonoM-r v. State. 17 Ohio St. 294 738 Schriedley v. State, 23 Ohio St. 130 452 Schroeder r. Chicago, R. I. & P. R. Co.. 47 Iowa. 375 091 Schultz v. State, 20 Tex. App. 316 439 v. Third Ave. R. Co., 80 N. Y. 213 342,370 Schuster p. State. 80 Wis. 107 325, 339 Schuylkill &• D. Imp. & B. Co. v. Mun- son, 81 D. S. 14 Wall. 448, 20 L. ed.872 16,229,231 Schwartz r. Com., 27 Gratt. 1025, 21 Am. Bep. 365 ...795, 790 Scott 13. Com., 4 Met. (Ky.) 227, 83 Am. Dec. 461.. _ 678 13. Key, 11 La. Ann. 232 863 u. People, 63 111. 508. 407. 529 13. People, 62 Barb. 02 706, 710 ». State, 63 Ala. 59 255 TABLE OF CASES. liii Scott v. State, 19 Tex. App. 325.. 13. State, 23 Tex. App. 452 Scovil v. Baldwin, 27 Oonn. 316 Scripps u. Reilly, 38 Mich. 10 Scroggina u. Scroggins, Wright (Ohio) 21-' Searla t>. People, 13 111. 597 v v. Dearborn, 19 N. H. 351 Seeley v. Engell, 13 N. V. 542. Segar v. Luikin, 77 Me. 142 Seibertr. Allen, (51 Mo. 482 Seller r. Jenkins, 97 Ind. 430 Selma, R. & D. R. Co. v. Keith, 53 Ga. 178 ii r. People, 42 Mieh. 141 Seymour o. Wilson, 14 N. Y. 567 Shackleford v. State. 33 Ark. 539... Staaffner r. Com., 72 Pa. 60 ...73, 2 shall o. Lathrop, 3 Hill, 237 Shannahan o. Com., 8 Bush. 4>;4 621, Shapoonmash c. United State-. 1 Wash. Terr. 188 Sharp r. State, 1". Tex. App. 171 Sharwin's Case, 1 East, 341.. 401, Shaw, Ex parte, 61 Cal. 5s 264, Shaw v. Emery, 42 Me. 59 _ v. Gould, L. R. 3 H. L. 55.... V. People, 3 Hun, 272 v. Shaw, 2 Swan. & T. 042 Shay i). Pe< >ple, 22 N. Y. 317 Shealy o. Edwards, 75 Via. Ul ... Sheldon v. Wood, 2 Bosw. 267 Shelton 13. Durham, 76 Mo. 434 v. Hampton, 28 N. C. 216 Shepard v. Giddings, 22 Conn. 282 13. Parker, 36 X. Y.517 334, 13. Potter, 4 Hill, 202 Shepherd v. Lanfear, 5 La. 336 13. People, 19 X. Y. 537 13. People, 25 N. Y. 406 Sheriden v. Smith, 2 Hill, 538... Sheriff of New Y^ork, Re, 1 Wheel. Criru. Cas. 303.... Sherman v. Gundlach, 37 Minn. 118 Sherwin v. People, 100 X. Y. 351 Shields v. Cunningham. 1 Blaekf. 86 Shinn 13. State, 64 Ind. 13, 31 Am. Kep. 110 Shipply r. People. 86 N. Y. 375.. Shoekey v. Mills, 71 Ind. 288, 36 Am. Rep. 196 Shoemaker v. State, 12 Ohio, 43 Shook v. Thomas, 21 111. 87 Shorb v. Kinzie, Km Ind. 429 Shorey i\ Hussey, 32 Me. 579 Short v. State, 4 Harr. (Del.) 568.. 296, 301, Shorter v. People, 2 X. Y*. 193, 51 Am. Dee. 286 245, 259, 570, v. Sheppard. 33 Ala. 6is Shubert r. State, 21 Tex. App. 551 Shular v. State, 105 Ind. 289, 55 Am. Rep. 211 176, 179, 180, Shultz v. Hoagland, 85 X. Y. 464 Sibley v. smith, 46 Ark. 275, 55 Am. Rep. 584 Sidney School Furniture Co. o. Warsaw Twp. School Dist., 122 Pa. 494 . Sikes 13. Dunbar, 2 Wheat. Sel. N. P. 1091 Sills 13. Brown, 9 Car. & P. 601.. Silverman v. Foreman, 3 E. D. Smith, Simmons r>. Com., 5 Binn. 617 Simms 13. State, 10 Tex. App. 131 352, Simon v. State. 5 Fla. 285 ... 495, 496. 499, Simpson v. Dall, 70 U. S. 3 Wall. 460, 18 L.ed. 26.5. 43, v. Pitman, 13 Ohio, 365 v. state, 4 Humph. 456 13. Stale. In lex. App. 681 Sims v. Boynton, 32 Ala. 353, 70 Am. Dec. 51U 550 771 219 182 B51 370 286 70 320 71 70 Am. Rep. 604 741 Stanton p. Andrews,5 V. ('. Q. B. 22 P. Star.-. Ti Ark. 317 206 Stanwood p. McLellan,48 Me. 275 101 Starin p. Kelly, 88 X. Y. 418. 454 v. People, 15 N. V. 341 419 Starkey v. People, 17 [11.20.. 533 Starkey's App. 61 Conn. 199. 74 Starr p. Peck, 1 Hill, .: ' 864 p. Torrey, 22 N. J. L. 190 94 •. Hogan, 120 fad. 207 198 . Abbey, 29 Vt. 60, 67 Am. Dec. r. Abbott, 8 W. Va. Ui'.'.'.Y.'.'.V.'.'.'. 758 r. Able, 65 Mo. 357 356 v. Adams, 20 Kan. 311 180 v. Adams, 78 Io 26, 366 V. A Or. 525 408 v. Adams, 1 Houst. Crim. Cas. 361 901 V. Addington, 1 Bail. L. 310 746 v. .Mi Cbuey, 11 Nev. 79, 33 Am. Rep. 530 •: . 691, v. Ah Lee, 7 Or. 2S7, B Or. 214 440.448 v. Alexander, 66 Mo. 148 579 v. Alexander, 11 N. C. 182. r. Allen, lit Mo. 07. 163 r. Allen. , C.805.. V. Anderson. 2 Bail. L. 565 240 V. Anderson, 17 Iowa. 112.. 703 r. Andersi ■ . - i Mo. 309 771 p. A •< I .. 771 V.Archer, 54 N. H. 465.. 354 V. Arnold, 35 N. C. 1-1 27, 12o r. Ashi r. 50 Ark. 427 711 v. Avery, 17 Wis. 073 258 v. Avery, 44 N. H. 392.. 020 p. Ayi r, 23 X. H 2C6 v. Avery, 7 Conn. 268, 18 Am. Dec. 105 882 r. Bacon, 13 Or. 143.. 333 State v. Baron, 41 Vt. 526, 98 Am. Dec. 616 v. Bailey, 32 Kan. 83 V. Bailey, 31 X. H.521 r. Bailey, 94 Mo. 311 v. Baker, 43 La. Ann. 11GS V. Baldly, 17 Iowa, 39 253, v. Baldwin, 36 Kan. 3... 105, 107,149, 503, V. Banks, 48 Ind. 197 u. Barker, 28 Ohio St. 583 r. Harnett. 3 Kan. 250 v. Bartlett, 43 X. H. 224, 80 Am. Dec. 154 .635, r. Bartlett, 11 Vt. 650 r. Hatch. 'lor. 15 Mo. 207 r. Bateman, 52 Iowa, 604 v. Battle, 7 Ala. 261 r. Bayne, 88 Mo. : 4. v. Beaucleigh, i»2 Mo. 4S0 r. Beaudet, ->3 Conn. 536, 55 Am. liep. 155 r. Behimer, 20 Ohio St. 572 v. Belcher, 13 S. C. 459 V. Bell, 49 Iowa, 440 187, V. Benham. 23 Iowa, 154, 92 Am. Dec. 410... 569, v. Benner, 04 Me. 267 255, r. Bennett, 52 Iowa, 724 p. Benthall. 82 N. C. 664.. p. Benton, 79 Me. 314. r. Bergman, 6 Or. :541 p. Berkley. 92 Mo. 41 r. Berry, 21 Me. 171 v. Bertin, 24 La. Ann. 46. 160, V. Beuchier, 103 Mo. 203.. v. Bilansky, 3 Minn. 240 V. Bird. 1 Mo. 417. v. Bishop, 7 Conn. 185. r. HlaisdeU, 59 N. H.-^S r. Blankensbip, 21 Mo. 501 v. Bohan. 19 Kan. 28, 55 v. Boiee, 1 Houst. Crim. Cas. 355.. f. Bostick, 4 Harr. (Del.) 583 V. Bowen, 10 Kan. 475 p. Bowen. 4 McCord, L. 254 v. Bowles, 52 N. C. 579 r. Bowser, 42 La. Ann. 936 r. Boyd, 2 Hill, L. 288. v. Boyland,24 Kan. 186 r. Bradley (Vt.) Aug. 25, 1892 r. Brady, 87 Mo. 142:. p. Branuum, 95 Mo. 22 v. Brassiield, 81 Mo. 152, 51 Am. Rep. 234 r. Bregard, 76 Mo. 322.. v. Brent, loo Mo. 231 v. Brewer, 98 X. C. 607 v. Brewster, 7 Vt. 118 v. Bn d--e.s 29 Kan. 138 437, v. Bridgman, 49 Vt. 202. 24 Am. Rep. 124 74. 156, 845,851, 854,874, v. Brinkhaus, :>4 Minn. 285 v. Brinyea, 5 Ala. 241 v. Britt, 7- X. C. 4:19. !'. Britton, 4 McCord, L. 256 ._ 805, 807, V. Brockman, 46 Mo. 566 495, v. Brooks, 92 Mo. 542. 344, 500, v. Brooks, 39 La. Ann. 817. V. Brooks, 3 Humph. 72. r. Broughton, 29 X. C. 96 .204, r. I in i wn, 22 Kan. 222 v. Brown, 3 Strobh. L. 516 607, v. Brown, 2 N. C. 100, 1 Am. Dec. 548 Bryan, 34 Kan. 63.. Bryce, II S. C. 342. Bucklev, 40 Conn. 243... Bullard, 16 X. H. 139.... Bullock, 13 Ala. 413 Bundy, 24 S. C. 439 102 206 401 580 345 254 530 196 532 408 636 741 413 1st 617 700 344 134 617 125 879 570 320 165 413 408 404 163 504 104 150 301 240 10 62 173 75S 630 492 13 379 861 582 399 a is 504 339 261 868 404 344 771 930 439 636 801 490 524 578 617 410 594 727 741 820 . . . 203, 255 440 253 621 687 .642. TABLE OF CASES. lv State v. Burgdorf, 53 Mo. 65J 813 v. Burke, 30 Iowa, 331 5011 v. Burnett, 81 Mo. 119 259 v. Burnett, 119 Ind. 302 714 V. Buraham, 9 N. H. 34, 31 Am. Dee. 217 882 V. Burnsiue, 37 Mo. 343 243 v. Byrne, 47 Conn. 466 405, 827, 830 831 v. Cain, 8 N. C. 352.- .403, 113 V. Cain, 20 W. Va. 679 407, 758 v. Calkins, 73 Iowa, 128 116, 744 V. Camden, 48 N. J. L. 89 426 Cameron, 2 Finn. 495. Campbell. 35 S. C. 28. Cantrell, 21 Ark. 127. Carland, 90 N. C. 668. Carr, 21 N. H. 166.... Carr, 6 Or. 1S3 Carr, 37 Vt. 191. 529 584 203 140 243 404 195 v. Carson, 66 Me. 116 351 D.Carver, 12 R. I. 285 404 v. Carver, 65 Iowa, 53.. K " s V. Center, 35 Vt. 378.. 530 v. Chamberlain, 89 Mo. 129 341, 344 v. Chamberlain, 30 Vt. 559... 79k V. Chambers, 43 La. Ann. 1108 380 V: Chambers, 39 Iowa, 179 499 v. Chambers, 47 Alb. L. J. 163 846 v. Ctiavis, 80 N. C. 353 573 v. Christian, 66 Mo. 138 765 v. Chyo Chiagk, 92 Mo. 395 509 u.Clark, 46 Kan. 65... 700 V.Clarke, 69 Iowa, 294 835 v. Clements, 15 Or. 243.. 241 V. Clinton, 67 Mo. 380, 28 Am. Rep. 506 345,348 v. ( louser,69 Iowa, 313 771 v. Clyburn, 16 S. C. 375.. 158 t\C6ckraa,l Bail. L. 50 7«k i . Cohn. 9 Nev. 179 347, 352. 445 r. Coleman, 27 La. Ann. 691 159, 636 V. Collins, 70 N.C. 241, 16 Am. Hep. 771 182 13. Collins, 32 Iowa, 36 .569, 5S9 v. Cone,46N.C. 18 B31 v. Conner, 5 Blackf. 325 255 V. Connor, 5 Coldw. 311 616 v. Cook, 23 La. Ann. 347. 35;.' V. Cook, 52 Ind. 574 773 v. Cook, 65 Iowa, 5(50 831 v. Copp, 15 N. H.212 401 V. Cosgrove, 42 La. Ann. 753 578 13. Covington. 2 Bail. L. 569 526 13. Cowan, 1 lb-ad. 280. 399 v. Cowell, 12 Nev. 337... 75, 76 v. Cox, 67 Mo. 392. 345, 348, 904 13. Craft, 72 Mo. 456 240 13. Crawford, 11 Kan. 32 ...26, 426,635,638, 639 V. Crawford, 34 Mo. 200 440 r. Crawford, 34 Iowa, 40 867 v. Cross, 27 Mo. 332 160, 164, 626 v. Cross, 12 Iowa, 66, 79 Am. Dec. 519 831 v. Crowley, 13 Ala. 172, 174 850 V. Crowley. 41 Wis. 271, 22 Am. Rep. 719 900 V. Cro wner, 56 Mo. 147 847 v. Crozier, 13 Nev. 300 447 v. Cueuel,31 N. J. L. 249 206 v. Curran, 51 Iowa, 112 872 V. Curtis, 39 Minn. 357 352 v. Cutshall, 109 N. 0. 764 847 13. Dakin, 52 Iowa, 395.. 160 V. Dale, 8 Or. 229 404 v. Daley, 53 Vt. 442, 38 Am. Rep. 694. 598 13. Dame, 60 N. H. 479, 49 Am. Rep. 331 401 13. Danby, 1 Houst. Crim. Cas. 175 635, 640 V. Danfortli, 48 Iowa, 43, 30 Am. Rep. 387 861 State r. Dart, 1 Cow. Crim. Rep. 49 137 v. Daubert, 42 Mm. 242 156, 414 v. Davidson, 30 Vt. 377, 73 Am. Dee. 312 469 13. Davis, 12 R. I. 492, 34 Am. Rep. 704 203 V. Davis, 38 N. J. L. 176 450, 727 v. Dayton, 23 N. J. L. 49 399 v. Dearborn, 59 N. H. 348 71 v. De Lay, 93 Mo. 98 708 v. Demareste, 41 La. Ann. 617 578 v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90 .289, 818, 824, 826, 827, 831 1, wa, 636 363 B. Elden, 41 Me. 165 613 v. Elkins. 101 Mo. 344 575 r. Elliot, 34 Tex. 148 408 V. Ellis, 74 Mo. 385, 41 Am. Rep. 321 8;ffl u. Elvins, 101 Mo. 246 261 13. Emerson, 48 Iowa, 174 753 13. Evans, 33 W. Va. 417 576, 581 v. Ezekiel, 33 S. C. 115 114 V. Falk, 46 Kan. 498 71 v. Fancher,71 Mo. 460 404 13. Farley, 4 McCord, L. 317 898 13. Farmer. 84 Me. 436 67 «. Fassett, 16 Conn. 457 410 13. Fay, 43 Iowa, 651 349 13. Fellows. 3 N. C. 340 403 v. Felter. 3.! Iowa, 50 635, 636, 638, 040, 641 13. Felter. 25 Iowa, 67 . . .652, 655, (362, 673 v. Fenly, 18 Mo. 445 773 v. Ferguson, 9 Nev. 106... 594 v. Fields, Peck (Tenn.i 140 494 13. Files, 3 Brev.304 165 r. Fisher, 33 La. Ann. 1344 594 13. Fitzgerald. 'Si Iowa, 263 386 v. Flanders, 38 N. H 324 321, 77.s 13. Fletcher, 18 Mm. 426... 218 v. Fletcher, 35 N. J. L. 445 720 v. Flint, 62 Mo. 393 404 13. Ford, 38 La. Ann. 797 174 v. Ford, 3 Strobh. L. 517 215, 584, 598 v. Forshner, 43 N. H. 89, 80 Am. Dec. 132 6 Forsythe, 89 Mo. 669 242- Foster, 9 Tex. 65...- 203 Fowler, 52 Iowa, 103 ill Fraser, 2 Bay, 96.. 163. Frazier, 6 ii.i.vt. 539.. 499 . F n (deric, 69 Me. 400 52 . Fredericks, B5 Mo. 145 .498, .524 . Freeman, 5 Conn. 348 276 . Freeman, 1 Speer, L 57 542 Froiseth, 16 Minn. 298. 4JU Funek, 17 Iowa, 365 253 hi TABLE OF CASES. State v. Furlong, 19 Me. 225 784 i er, Wright (Ohio) 392.. . 674 v.Gardner, 1 Root, 485 286 v. Gi . (mi. 970 758 r. Qarrand, 5 Or. 816 448 0. Garria, Bfi \. C. r33 709 D. Garvey, ll Minn. L54 626 o. Gedioke, 13 V J. L. 86 340 V.i ,92 N.C.766 l'-K) O.Gee. 85 Mo.647 440 o. George, 62 [owa, 682 771 v. German, 54 Mo. 526, 14 Am. Rep. 181 408, 524 v. Gibeon, 26 La. Ann. 71 794 o. Gilmore,9 W. Va.641.— 408 i: Givens, 5 Ala. 754. -- 113 v. Glahn, .'7 Mo. 679 575, 584 r. Glass, 50 Wis. 218, 30 Am. Rep. B45. 357 v. Gleason, 1 Nev. 173 007 Idsborough, 1 Houst. Criin. 540 v. Gonce,79 Mo. 600 62, 437 .i u h, 19 Yi. lit., 47 Am. Dec. 5(19,577 V. Goodrich. 46 N. EI. 186.. 737 p. Gordon, 46 N. J. L. 432 286 v. Grac !, 18 Minn. 398 264, 266, 367 v. Graff. 47 [owa, 384 515 o. Graham, 62 [owa, 108. 246 i . I • : ilium. 74 N. C. 646, 21 Am. Rep. 693 V. Grant, 79 Mo. 113, 49 Am. Rep. 218 363,396 r. Grate, 68 Mo. 22 - 611 v. Graves, is Colo. — 420,534 v. Gray, 14 Nev. 212 1(55 v. Grear, 28 Minn. 126, 11 Am. Rep. 498 v. GreeDwade, 72 Mo. 298 463 v. Green, 7 Wis. 676 708 17. Gregor, 21 La. Ann. 473. 578 r. Griffice, 74 N. C. 316 203 17. Guild, 10 N. .1. L. 193. .469, 476, 492, 499 t\ Guillory,44 La. Ann. - — 57S r. Gurnee, 14 Kan. Ill 45 i). Gustafson, 50 [owa, 194 598 v. Gut, 13 Minn. 341 638, 640 17. Gutekunst. 24 Kan. 252 245 f. Hagan, 22 Kan. 490 135 v. Hagan, 54 Mo. 192 . 493 v. Balida,28 W. Va. 499 406 v. Hall, 9 Nev. 58 — 577, 594. 595 v. Had, 76 Iowa, 85. 706 r. Hall. 10 Kan. 338 934 r. Hannett, 54 Vt. 83 185 ». Hanson, 39 Me.337... 408 v. Harden, 3 Rich. L. 533 203 v. Hardin, 16 Iowa, 623,26 Am. Rep. 117 .61 i. 688 V. Flare, 95 N. C. 682 174 v. Har#rave, 65 N. C. 466 816 v. Harlow, 2] Mo. 446 621,636 V. Harp. 31 Kan. 498. 408 v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596... 529, 532 r. Harrington, 12 Nev. 125 577 V.Harris, '"■ N. C. 1 157 7-. Harris, 59 Mo. 550 577 v. Harrison, 50 X. C. 115 771 v. Harrod, Krj Mo. 590 577 V. Hascall, 6 N. II. 352 795 v. Hastings, 53 N. H. 453.. 110 v. Hattaway, 2 Nott & Mc. C. L. ll- 789 V. flav.'ly. 21 Mo. 198 170 v. Hayden, 45 Iowa, 17 i39 v. Hayes, L05 Mo. 70 5:'4 17. Hays 23 Mo.287... 441,448, 578 v. Hayward, 1 Nott \- McC. L. 546 „ V. Hazleton, 15 La. Ann. 72... . 316 State v. Heatherton, 60 Iowa, 175 875 v. Hedge, 6 Ind. 333 406 V. Heed, 57 Mo. 254 868 v. Ht 'mm, 82 Iowa, 609 871 V. Henderson, 1 Rich. L. 179 898 V. Henn, 39 Minn. 476 575 u. Henrv, 50 N. C. 65 ..598, 600 17. Henry, 48 Iowa, 403 753 V. Herd, 57 Mo. 252 794 v. Hewitt, 31 Me. 396 900 17. Hicklin^, 41 N. J. L. 208 900 17. Higdon, 32 Iowa, 262 880 17. Higgins, 13 R. I. 330 426 17. Hill, 20 N. C. 491 573 v. Hill, 91 Mo. 423 875 D. Hilton, 3 Rich. L. 434, 45 Am. Dec. 783 805, 807, S09 17. Hirsch, 45 Mo. 429 426 17. Hockett, 70 Iowa, 442 662, 764 17. Hodsre, 50N. H. 510 733 17. Hodg-skins, 19 Me. 155 805 17. Hogard, 12 Minn. 293 469- 17. Holden, 42 Minn. 350 551 17. Hollis, 1 Houst. Crim. Rep. 24.. 758 17. Hollowav,8 Blackf. 45 276 17. Holme, 54Me. 153 448 v. Homes, 17 Mo. 379, 57 Am. Dec. 269 1 89 17. Honig,78M"oV249""."."II""."I" 181 v. Hood, 51 Me. 364 69 v. Hooker, 17 Vt. 658 387 V. Hopkins, 50 Vt. 316... 86, 90, 110, 116 17. Hopkirk, 84 Mo. 278 524 V. Horn. 43 Vt. 20.. 110- 17. Home, 9 Kan. 119 352, 626 17. Horton, 33 La. Ann. 289 125 17. House r, 28 Mo. 233 355 17. Houston. 50 Iowa, 512. 281, 282 17. Howard, 17 N. H. 171.206, 252, 495,496 17. Howard, 32 Vt. 380 529 17. Howard, 4 McCord, L. 159 798 v. Howerton, 58 Mo. 581 747 17. Hoyt, 46 Conn. 330 148, 149, 426, 635, 640, 663 17. Hoyt, 47 Conn. 518, 30 Am. Rep. 89 182 V. Huff, 11 Nev. 17 346 v. Huirhes, 35 Kan. 020, 57 Am. Rep. 195 804 17. Hundley, 40 Mo. 414 620, 036 17. Hunsaker. lOOr. 497 241 17. Hunt, 91 Mo. 490.. 243 17. Hurley, 54 Me. 502. 40 V. Hurley, 1 Houst. Crim. Cas. 28. 021 17. Hutinf?. 21 Mo. 464 036 17. Hutson, 15 Mo. 512 173 17. Hyland, 19 West Coast Rep. 622 244 17. Infold, 49 N. C. 210 573 17. Ivey, 100N. C. 53) 403 17. Jackson, 17 Mo. 544,59 Am. Dec. 281 : 218,578 17. Jackson, 95 Mo. 023 248 17. Jackson, 37 La. Ann. 890 594 17. Jackson (Tenn.) 1 L. R. A. 373.. 932 17. Jacobs, 6 Tex. 99 255 17. Jacobs, 50 N. C. 259 692, 694 17. James. 37 Conn. 355 45 17. James, 34 S. C. 49 416 v. James, 58 N. H. 67 737 17. Jamison, 74 Iowa, 613 700 V. Jansen, 22 Kan. 498 524 17, Janvier, 37 La. Ann. 645 594 v. Jarvis. 20 Or. 437 838, 840 17. Jennings, 18 Mo. 4*5 163, 448 17. Jeuninsrs, 15 Rich. L. 42 255 17. John, 30 N. C. 330 626 U.Johnson, 26 Minn. 316 13 V. Johnson, 40 Conn. 142 .... 194, 241, 443, 444. 624-626, 662, 663 17. Johnson, 91 Mo. 439 293 17. Johnson, 12 Nev. 121 356 17. Johnson, 16 Nev. 36 436 TABLE OF CASES. LV11 State o. Johnson, 8 Iowa, 525 443 13. Johnson, 76 Mo. 121 538 V.Johnson, G7 N. C. 58 693 13. Johnson, 37 Minn. 493 771 v. Jones, 64 Iowa, 349 26 l). Jones, 77 X. C. 520 183 v. Jones, 50 N. H. 369, 9 Am. Rep. 842.426, 635, 638, 639, 645, 653, 662, 670 v. Jones, 54 Mo. 478 496, 498, 499 v. Jones, 51 Me. 1 25 521 », 52 1 13. Jones, 1)7 X. C. 469 771 13. Jones, 13 Iowa, 270 900,901 V. Justice. 13 X. C. 199 720 13. Kabrieh,39 Iowa, 277 599 v. Kane, 63 Wis. 202 751 13. Keaeh, 40 Vt. 113 900,901 13. Kearley. 26 Kan. 77 439 i). Keath, 83 N. C. 626 621 v. Keeler. 28 Iowa, 553 409, 731 v. Keene, 50 Mo. 357 589 v. Kejjiron, 55 N. H. 19 428 13. Kelsoe, 76 Mo. 505, 11 Mo. App. 91 616 v. Kemp, 87 N. C. 538 .74, 845, 85] v. Kennedy, 20 Iowa, 569.. 274 13. Kibby, 7 Mo. 317 218 V. Kimbrough, 13 X. C. 431 43 v. King, 44 Mo. 238 245 v. King, 9 Mont. 445 584 v. Kinnev. 44 Conn. 153, 26 Am. Rep. 436 826, 834 13. Klintrer, 43 Mo. 127 636, 678 v. Klitzke, 46 Minn. 343 349 13. Knapp, 6 Conn. 417... 11 13. Knapp. 45 X. H. 156 836 v. Knox, 61 X. C. 312 190 v. Krieger, 68 Mo. 98 737 V. Kring, 74 Mo. 612 396 13. Kroeger, 47 Mo. 552 778 v. Kobe, 20 Wis. 217, 91 Am. D <•. 390 706 V. Labuzau, 37La. Ann. 489 594 13. Ladd, 32 X. H. 110 7:17 V. Lange, 59 Mo. 418. 165 v. Lanier, 90 X. C. 714 403 V. Lapage,57 X. H. 245 .... 73. 207. 208, 217. 266, 412, 443, 449. 452. 597, 601, 608. 712, 713, 735, 856 13. Laque, 41 La. Ann. 1070 583 v. Lattin, 29 Conn. 389 276 v. Lautenschlatrer, 22 Minn. 514 . 443 v. La whom, 88 X. C. 634 351 V. Lawrence, 57 Me. 574 426, 635, 640, 641 v. Laxton. 78 X. C. 504 75, 826 v. Leabo, 89 Mo. 247 185 13. Le Blanch, 31 X.J. L. 82 741 v. Lee, 66 Mo. 165.. 248, 579 V. Lee. 22 Minn. 407, 21 Am. Rep. 769 609,610 v. Lentz, 45 Minn. 177. 197 V. Levy, 5 La. Ann. 64 276 V. Levy, 23 Minn. 104 290 •U.Lewis, 74 Mo. 222 160 v. Lewis, 20 Xev.333 642, 678, 680 v. Libbv, 44 Me. 469 805, 807, 809 v. Lightbodv, 38 Me. 200 2 B 13. Lindlev, 51 Iowa, 343, 33 Am. Rep. 139 598 D. Linnev. 52 Mo. 40 156, 570 v. Little. 42 Iowa, 51 400 V. Long. 103 Ind. 481 700 13. Loveless. 17 Xev. 427 732 13. Lowhorne, 66 N. C. 638 495, 499 13. Lurch. 12 Or. 99 341, 345 13. Lvon, 12Corm. 487 240 V. Lynch (Mo.) 4 L. & Eq. Rep. 6.53 638 13. McCahlll, 72 Iowa, 111 575, 583 v. MeCall, 4 Ala. 643, 39 Am, Dec. 314 750 V. McCants, 1 Speer. L. 384 626 V. Mc( a.-ki-v. 104 Mo. 644 871 v. Mace, 76 Me. 04 403 State v. McClintic. 73 Iowa, 063 S79 w.McCluer, 5 Xev. 132. 771 13. McComb, 18 Iowa, 43 163 v. McCoy, 29 La. Ann. 593 578 13. McCoy, 34 Mo. 531 63ft v. MeCrackeu, 66 Iowa. .569 688 v. McCroskev. 3 McCord, L. 308... 789 13. McCunnilf, 70 Iowa. 217 174 -0. McDonald, 85 Mo. .539 259, 261 v. McDonald, 25 Mo. 176 ...805, 807, 809 v. McGinnis, 17 Or. 332 211 v. McGlothlen, 56 Iowa, 544 861 v. McGowan, 1 S. C. 14 469 v. McGraw, 74 Mo. 573 344 v. McKean. 36 Towa, 343, 14 Am. Rep. 530 508, 524, 525 v. McKenzie, 102 Mo. 620 578 v. Mackey, 12 (jr. 154 142 v. Mackey, 82 Iowa, 393 ...871, 872 V. McKinney (Kan.) March 6, 1884 575 0. McKinzie, 102 Mo. 620 345 v. McLaughlin, 70 Mo. 320 341, 344 r. McMurphy, 52 Mo. 251... 598, 601, 606 r. McNally, 37 Mo. 644 594 v. McXamara, 3 Xev. 71 203 v. Magee, 11 Ind. 1.54 706, 708 v. Manly, 68 Mo. 316 248 v. Main, 31 Conn. 572 156 v. Maine Cent. R. Co., 77 Me. .541 . 232 V. Maloy, 44 Iowa, 104 194, 578 t. Maney, 51 Conn. 178.507, 511,515, 522 C.Mann, 83 Mo. 589 161 0. Manuel, 64 X. C. 601 157 v. Markins, 95 Ind. 464, 48 Am. Rep. 7.33 74, 842 r. Marler, 2 Ala. 43, 36 Am. Dec. 398 636,638 13. Marshall. 36 Mo. 400 259, 296, 301 13. Martin, 74 Mo. 547. 248 v. Martin, 76 Mo. 337 618 13. Marvin, 35 X. H. 22.-285, 824, 836, 855 r. Matthews, 37 X. H. 450 245 13. Matthews, 78 X. C. 533. 569, 758 v. Matthews, 10 L. R. A. 308, 44 Kan. 596 700 v. Maxwell, 51 Iowa, 314 615 v. Maxwell, 47 Iowa. 454 778 v. Mayberry, 48 Me. 218 45, 905 13. Meekins, 41 La. Ann. 543 192 13. Melville, 11 R. I. 418.. 404 13. Merrick. 19 Me. 398 753 13. Merrill, 13 N. C.269.. 77 13. Merrinian.34 S. C. 17 348. 603 v. Meshek, 61 Iowa, 316 . W r. Meyers, 99 Mo. 107 259, 191 13. Millain, 3 Nev. 409. 448 13. Miller, 47 Wis. 530 208 13. Miller, 10 Minn. 313 219 v. Miller, 53 Iowa. 209 292 13. Mills. 88 Mo. 417 345 r. Mills, 17 Me. 211 703, 700, 710, 716 V. Mills. 12 Xev. 403 726 13. Mitchell. 61 X. C. 447 498 13. Molier, 12 X. C. 263.. 798 13. Molisse, 36 La. Ann. 920 536 13. Moody, 3 X. C. 31. 2 Am. Dec. 616... 540 13. Moorman. 27 S. C. 22 492 l3.Morgan, 20 La. Ann. 442 255 v. Morgan, 95 X. C. 641 617 13. Morphy, 33 Iowa, 270 - 126 u.Morris,9N. H. 96 798 13. Mowrv. 37 Kan. 369 642. 663 v. Moxley, 102 Mo. 374 197, 5.->3 v. Mullen, 14 La. Ann. 577 621 V. Murphy,84 X. C. 742 732 u. Murphy, 6 Ala. 765, 41 Am. Dec. 79 813 V. Murrav, 11 Or. 413 642 t3. Myers, 82 Mo. 558.. ..457, 464, 512, 700 13. Myers, 30 Mo. 1H 218 13. Nagle, II Et. 1.331. 6!> Iviii TABLE OF OASES. -State i'. Nance. 25 S. C. 173 p. Nash, 7 [owa, 347 v. N. lelej , 20 [owa, 108 I), Nelson, 19 Mo. 393. r. Nelson, n Nev. 334 v. Nelson, 68 [owa, 208 r. Nettlebush, 80 [owa, 257 r. Newcomb, 1 Houst. Oriin. 66 536. Rep, .Newell, 58 N. H. 314 . Nichols, 29 Minn. 357 349, . Niles, 17 vt. 82 . Nixon, Wrighl (Ohio) 703 . Nixon, 32 Kan. 205 . Norris, 2 N. ('. 438 . Northup, 48 Iowa, 583, 30 Am. Rep. 408 . Norwood, 71 N.C. 247 . O'Bannon, 1 Bail. I/. 144.. . Ober, 52 N. M. 159, 13 Am. Hep. . O'Brien, 7 R. !. 338 145, 140, . oilntt, 4 Blackf. 355 . Olds, I90r. 397 24(1, . Oliver,:.' Houst (Del.) 585 .Oliver. 13 La. Ann. 10U3 . O'Neal, 29 N. C 251 598, . ( trmiston, 66 [owa, 143 . Oscar, 52 N. C. 305 . Ostrander, 18 Iowa, 4:35. .440, 495, . i >wen, 78 Mo. 367 . Owens, 7!' Mo. 620 . Packwood, 26 M<>. 341 239, . Pagels,92 Mo.300 . Painter, 50 [owa, 317. i, 104 N. C. 679 . Parker, 96 Mo. 382 . Parker, 61 N. C. 175 . Parker,13 Lea, 226 . Parker, 1 1). Chip. 298, 11 Am. Dec. 735 . Parks, 21 La. Ann. 251 . Partlow, 90 Mo. 608, 55 Am. Rep. 31 . Patrick, 48 N. C. 443 . Patterson, 73 Mo. 695.. . Patterson, 88 Mo. 88, 57 Am. Rep. 371 341,344, 868, . Patterson, 45 Vt. 308, 12 Am. Rep. .'< 26,540, . Paulk, 18 s. c. 515 . Payne. 66 N. C. 609 .37, . Pearce, 15 Nev. 19] . Penny, 70 Iowa, 190 . Perkins, m N. U.377.. . Peter, li La. Ann. 527 . Peterson, 41 Vt. 511 . Pi ttaway, 1" N. o. 623 . Pfetferle, 36 Kan. 90 . Phair, 48 Vt. 366 . Phelps, 11 Vt. 116,34 Am. Dec. 672 . Phi Ips, 74 Mo. 128 498. . Pierce, 65 [owa, 89 . Pike, 21 \. II. 344 .. . Pike, 49 N. H.399, 6 Am. Rep. 53.3 25, 26, 105, 644, 661, . Pints 64 Mo. 317 . Pippin. ^ N. C. 646 74" 845 . Pitts, 11 [owa,343 . Porter,34 [owa, 140 123 . Port.!-. 26 Mo. 201 . Porter, 38 Ark. 637 Porter, 75 Mo. 171 '341 . Potter, 52 Vt. 33 ON. C. 457 642 Pratt, 15 Rich. L. 47 Pratt, l Houst. Orim. Cas". 269 Pri« e. 11 N. J. L. 241 Pritchett, 106 N. 0. 367 Prizer,49 Iowa. 531,31 Am. Rep. 155 Stale r.'Probnseo, 46 Kan. 311) 352 v. Quarrel, 2 Pay, 150, 1 Am. Dec. 637 252 v. Quin, 3 Brev. 515 509 v. QuintOD. 5'.i Iowa. 362 240 v. Randolph, 24 Conn. 363 303 v. Rankin, 4 Coldw. 145 919 V. Pawls 2 Nott. & McC. L. 331. .97, 108 r. Ray, 53 Mo. 345 - 259 r. Raymond, 53 N.J. L. 260 212 r. Red, 53 Iowa. 69 347 r. Redemeier, 71 Mo. 173, 36 Am. Hep. 402. .630, 640 v. Redman, 71 Iowa, 329 617 V. Reed, 02 Me. 129 220, 430, 437, 440 V. Reed, 71 Mo. 200 248 v. Reed, 39 Vt. 417, 94 Am. Dec. 337 606 v. Reitz, 83 N. C. 034 688 V. Renton, 15 N. H. 174 735 V. Reonnals. 14 La. Ann. 276 741 V. Revells, 34 La. Ann. 381, 44 Am. Rep. 4:36 493 V. Richard. 39 Conn. 591 674 v. Richards, 33 Iowa, 420 834, 735 V. Richie, 28 La. Ann. 327, 26 Am. Rep. 100 289 r. Rider, 90 Mo. 54 594 r. Roach, 3 N. C. 352 413 V. Huberts, 19 N. C. 540 403 1: Roberts, 34 Me. 320 900 V. Robinson, 59 N. H. 275 413 r. Rockafellow, 6 N. J. L. 405 203 V. Rodman, 62 Iowa. 456 598 v. Rogers, 79 N. C. 609 862 v. Rohfrischt, 12 La. Ann. 382 360 V. Romain, 44 Kan. 719 350 V. Rose, 33 La. Ann. 932 158 D.Rose, 30 Kan. 501.... 758 V. Roswell, Conn. 446 804. 805, 809. 838, 852 V. Rounds, 76 Me. 123 440 V. Rover, 11 Nev. 348. _ 430 V. Howe, 43 Vt. 265 67 v. Rowlev, 12 Conn. 101 ....703, 708,901 v. Rujfan, 68 Mo. 214 345, 348, 015 V. Rush, 95 Mo. 199 498 r. Kuthven, 58 Iowa, 121 407 V. Ryan, 30 La. Ann. 1176. _ 594 v. Sarony, 95 Mo. 349 700 V. Saunders, 14 Or. 300 341, 345 v. Sayres, 58 Mo. 585 325 v. Scott, 80 N. C. 365 .320, 330 v. Scanlan, 58 Mo. 204 276 V. Scott, 39 Mo. 424.... 467, 524 U.Scott, 12 La. Ann. 274 529 V. Scott, 20 N. C. 415, 42 Am. Dec. 148 580 V. Seals, 16 Ind. 352 ..805, 807, 809 V. Sears, 61 N. C. 146 190 r. Shaeffer, 89 Mo. 271 .437, 439 t). Shelledy, 8 Iowa, 477 252 V. Sherill, 82 N. C. 094 167 V. Sherill, 81 N. C. 550. 174 v. Shermer, 55 Mo. 83 328 v. Shields, 45 Conn. 256 814 V. Shippey, 10 Minn. 223, 88 Am. Dee. 70 .572, 573 V. Shiver, 30 S. C. 392 403 V. Shuford, 69 N. C. 480 207 V. Sims, 2 Bail. L. 29 240 V. Slack, Ala. 676 .017 v. Sling-erland, 19 Nev. 135 224, 725 v. Sloan, 47 M< >. 004 569, 570, 599 v. Sloan, 55 Iowa. 220 _ 436 v. Smallwood, 75 N. C. 104. 292 v. Smith, 53 Mo. 267 25,636, 041 V. Smith, 8 Rich. L. 400 105 v. Smith, 65 N. C. 309 240 C.Smith, 6 R. I. 33 253 v. smith, 49 Conn. 370 332 r. Smith, 11 Or. 205 ... 404 V. Smith, 21 Mo. App. 595 440 TABLE OF CASES. lix Stater. Smith, 10 Nev. 106 v. Smith, 54 Iowa, 104, 37 Am. Rep. 192 v. Soper, 16Me.203 v. Sopher, 70 Iowa, 494 V. South, 28 N. J. L. 28, 75 Am. Dec. 250.. v. Spencer, 21 N. J. L. 1% 26, 149, 636-638 , »34Q, 653, v. Spier, 86 N. C. 600 v. Squires, 48 X. H. 364 v. Staley, 14 Minn. 105 495, r. Stanley. 33 Iowa, 526 v. Staples. 47 N. H. 113..- v. Stark, 1 Strobb. L. 479 v. StarliDg. 51 N. C. 366 636. v. Starr, 38 Mo. 270 v. Stephenson, 4 McOord, L. 165 .. . v. Stewart, 9 Nev. 120 .._ 577, v. Stewart, 60 Wis. 587, 50 Am. Rep. 388 v. Stowe, 14 L. R. A. 609, 3 Wash. 206 - v. Strauder, 11 W. Va. 745, 27 Am. Rep. 606 63*3, v. Stroll, 1 Rich. L. 244 r. St ruble, 71 Iowa. 11-. r. Sullivan, Add. Rep. 143 v. Sullivan, 104 N. Y. 481... v. Summers, 9 West. L. J. 415 v. Swayze. 30 La. Ann. 1323 v. Symonds, 30 Me. 128 203, 205, V. Tarr, 28 Iowa, 397 817, v. Tarrant, 24 S. C. 5 3 v. Tatro, 50 Vt. 483 493, v. Taunt, 16 Minn. 109 v. Taylor, 64 Mo. 358 v. Teeter, 69 Iowa, 717 v. Testerman, 68 Mo. 408 345, v. Thaden, 43 Minn. 253 v. Thomas, 98 N. C. 599 V. Thomas, 53 Iowa, 214. r. Thompson. 80 Me. 194 115, V. Thompson, 12 Nev. 140 .405. v. Thompson, 97 N. C. 4!« V. Thompson, 1!> Iowa, 299 V. Thompson, 38 Ind.39 V. Thorton, 20 Iowa. 80 v. Tomlinson, 11 Iowa, 401 V. Town, Wright (Ohio) 75 v. Trott, 36 Mo. App. 29 v. Trout, 74 Iowa, 545 v. Tuller, 34 Conn. 294 v. Turner, 76 Mo. 350 207, 341, V. Turner, 19 Iowa, 144 601, v. Turner, 1 Houst. (.'rim. Rep. 70. v. Turner, Wright (Ohio) 20 V. Turpin, 77 N. C. 473. 24 Am. Rep. 455 580, v. Tweedy, 11 Iowa. 351 v. Underwood, 57 Mo. 413 v. Underwood, 49 Me. 181, 77 Am. Dec. 254 v. Valentine. 29 N. C. 225 879, V. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431 r. Vane-ant, 80 Mo. 67 .. V. Vickery, 19 Tex. 326 V. Vincent, 24 Iowa, 570, 95 Am. Dec. 753 V. Vines, 1 Houst. Crim. Rep. 424. v. Vittum,9N. H. 519 V. Voigbt, 90 N. C. 741 v. Vorback, 66 Mo. 108 v. Wadsworth, 30 Conn. 57 v. Walker, 34 Vt. 296 492, v. Walker, 26 Ind. 346 v. Walker, 98 Mo. 93 v. Wall, 15 Mo.208... V. Wallace, 9 N. H. 515. 518 s24, 836, 851, V. Waller, 80 N. C. 401, 402 850, Stater. Walsb, 3 X. J. L. J. 119 267 V. Ward. 61 Vt. 153 29, 6*2, 685 r. Ward. 39 Vt. 235 11" v. Ward, 19 Nev. 297 189 v. Warner. 74 Mo. 83 199 r. Warren, 34 Iowa. 453 873 V. Wart. 51 Iowa, 587 206 r. Waterman, 1 Nev. 543.-26, 039, 683 v. Watkins, 9 Conn. 52 77 1?. Watson, 7 S. C. 63 688 v. Way, S Neb. 2*7 836, 851 r. Way,6Vt.311.. 850 V. Webb, 41 Tex. 68 239 v. Welch, 26 Me. 30. 15 Am. Dec. 94 286 u.Wells, 61 Iowa, 629 160 V. Wells, 1 X. .1. L. 628 607 v. Wen' worth, 65 Me. 234, 20 Am. Rep. 688 - 347,361 r. West. 1 Houst. Crim. Rep. 371.. 149 v. White, 68 X. C. 158 136 V. White, 19 Kan. 444, 27 Am. Rep. 137 352 V. White, 35 Mo. 500 606 v. White. 25 Wis.359 737 v. White. 29 N. C. 180 898 v. Whitfield, 70 X. C 356 493 v. Whitney, 7 or. 386 142 r. Whittier, 21 Me.341,38 Am. Dec. 272.. - 276 V. Wilbourne, 87 N.C. 529 u.Williams. 1 Rich. L. 188 203 r. Williams, 65 N. C. 505 245 v. Williams, 5 Port. . MeNamara, 3« Me. 176... .22, 23 r. siatc 31 J ii. 1. 485. 99 Am. Dec. 03.-., 0.5:;, ooo, 073, 678 o. Stebbina, 4 ill. 25 171, 172 Stewart o. ('(inner. 9 Ala. 803 97 v. Huntingdon Bank, 11 Serg. & R. 267 417 v. People. 23 Mich. 63, 9 Am. Rep. 319 v. S1 He. 58 '■;(. 577 104 v. Suite, 1 Ohio St. 66 569 v. State, 15 Ohio St. 155 616 13. Stewart, 3] X. J. Eq. 407 - 863 o. Turner, 8 Edw. Ch. 458 296, 297 Stiles o. Tilford, 10 Wend. 339 245 Stilling v. Thorp, 54 Wis. 528, 41 Am. Kep. 60 770 Stitt v. Huidekoper, 84 U. 8. 17 Wall. 385,21 L.ed. 644 228 V. State, 91 Ala. 10. 570 Stitz 13. State, 104 fad. 359 432. 440 Stockton r. Demuth. T Watts, 39 370 Stockwell r. State. HH Ind. 1 249 Stoffi r r. State. 15 Ohio St. 487, 86 Am. Dee. 470 293 Stokes u. Johnson, 57 N. Y. 673 84 v. People. 53 N. V. 104. 13 Am. Rep. 193 ... 201, 342. 370, 418,422, 428, 581 r. State. 24 Miss. 621 ....203, 255 13. Slate. 5 Baxt. 619, 30 Am. Kep. 72 093 13. State. 58 Miss. 077 737 Stolpu Blair, 68 III. 541 374 Stoltz c. Doering, 112 111. 234 803,8(54 Stone t). Crocker, 24 Pick. 88 50 13. Greal Western Oil Co., 41 111. 85 200 V. People, 13 Hun, 265 - 902 v. State, 4 Humph. 27 207 Storck r. Buffalo German K. Printing Asso., 22 Alb. L. J. 135.... 880 St- .rev ,'. State, 71 Ala. 329 766 Storrs 13. State, 3 Mo. 10 217 St rj 13. Saund< is. 8 Humph. 606 304 ' 13. State. 99 fad. 413 195 Stoudenmire v. Harper. : 1 Ala. 242 104 St. mt v. People, 4 Park. Crim. Rep. 71 . 214, ', 13. State. 90 Ind. 1 440 Stouvenel v. Stephens. 2 Daly, 319 23 Stovall v. State, 9 Baxt. 597 862 Stover v. People, 56 N. V. 315 Strader v. Graham, 51 U. S. 10 How. 93, 13 L. ed. 342 862 Strang r. People, 24 Mich. 6 606, 813, 836 Strang r -. s, arle. 1 Esp. 14 . 114 ier r. West Virginia, 100 U. S. 303, 25 L. ed. 664 203 Streety v. Wood, 15 Barb. 105 890 Stringer o. Frost, 2 L. K. A. 014, no fad. 177 259 : el low p. State, 20 Miss. 157, 59 Am. Dec. ..•;: 467 Strong 13. state, st; ind. 208, 44 Am. Rep. 292 700 Btrother 13. Lucas. 31 U. S. 6 Pet. 7G3, 8 L. ed. 573 53 Stuart r. People, 1 Baxt. ITS 674 Stubba r. Houston. 33 Ala. 555 25 Stupp. Be, 12 Blatchf.501. 944 Stuyvesant's < fcse, 4 City Hall Rec. 156. 703 Sullivan D. Hurley, 147 M ... 8.53 p. Kuykendall, 82 Ky. 483, .50 Am. Rep. 901. 83, 484 13. People, 1 Park. Crim. Rep. 347 19] Sullivan 13. State, Tex. App. 319 ...354,387 13. State, 52 fad. 309 439 Summons r. State. 5 Ohio St. 325.353, 354, 384 Sumner v. State, 5 Blaekf. 579, 36 Am. Dec. 561 440,550 Sunderland's Estate, 60 Iowa, 732 863 Suuderlin v. Bradstreet, 46 N. Y. 191, 7 Am. Rep. 322 889 Surber 13. State, 99 Ind. 71 198, 620 Sussex Peerage, The, 11 Clark & F. 108. 529 Sutherland 13. Venard, 32 Ind. 483. 260 Sutton c. Devonport, 27 L. J. C. P. 54 .. 221 u. Johnson, 62 111. 209 208 Swails t3. State, 7 Blaekf. 324 171 Swallcy 13. People, 110 111. 247 616 Swamp Land Dist. r. Gwvnn, 70 Cal.570 35 Swamscot Mach. Co. 13. Walker, 22 N.H. 457 370 Swan 13. Com., 104 Pa. 218 73, 210, 901, 904 p. State, 4 Humph. 136 444 Swart v. Kimball, 43 Mich. 451 942 Sweeden v. State, 19 Ark. 205. 164 Sweeney 13. Ten Mile Oil & G. Co., 130 Pa. 193 85- Sweetser 13. Lowell. 33 Me. 44*5 116 Swigar i>. People, 109 III. 272.... 771 Swinnerton ('.Columbian Ins. Co., 37 N. Y. 174, 93 A m . Dee. 560. 12 Swisher 13. Com., 26 Graft. 963 530 Sydleman 13. Beckwith, 43 Conn. 13 142 Sydserfl 13. Re*., 11 Q. B. 245. 719 Sylvester v. State, 71 Ala. 17 538 T. Tabart v. Tipper, 1 Campb. 350. 895 Talbot 13. Seeman, 5 U. S. 1 Cranch, 1, 2 L.ed. 15 53 Talcott 13. Harris, 93 N. Y. 567 84 13. Wilcox, 9 Conp. 134 240 Tanner 13. Hughes, 53 Pa. 289. S3. 94 Tarble 13. People, 111 111.120 261 Tarpley v. State. 79 Ala. 271 173 Tate 13. Missouri, K. & T. R. Co., 64 Mo. 149 481 Taulman v. State, 37 Ind. 353.. 281 Taunton Bank 13. Richardson, 5 Pick. 436 43 Tayloe 13. Riggs, 26 U. S. 1 Pet. 591, 7 L. rre 42 Taylor 13. Baltimore & O. R. Co., Si W. Va.39 258 73. Betsford, 13 Joins. 4*7 253 r. Carew Mfp. Co., 14U Mass. 151... 232 13. Everett, 2 How. Pr. 23 2t6 13. Greet y, 3 Me. 201 252 13. People, 12 Hun, 212 521 13. Shemwell. 4 B. Mon. 575 158 13. State, 35 Tex. 97 469, 474 13. State, 52 Miss. 84 802 13. State, HI Ind. 270 815 Taylor Will Case, 10 Abb. Pr. N. S. 300.. 152 153- Teachout v. People, 41 N. Y.7.V. "."." . . . ..' 501 Teerpenning r. Corn Exch. Ins. Co., 43 N. Y. 279 321 Teese v. Huntingdon. 64 U. S. 23 How. 2, 16 L. ed. 479 363 Temple 13. Com., 75 Va. 892 300, 309 Tenney v. Evans, 13 N. H. 462 206 . Mulvaney, 8 Or. 522 245 Territory i\ Bannigan, 1 Dak. 432 770- 13. Campbell, 9 Mont. 16 578 13. ( lavton, 8 Mont. 1 771 t'. McClin, 1 Mont. 394 468 13. Manton, 8 Mont. 95 771 t3. O'Hare, 1 N. Dak. 30 347 13. Roberts, 9 Mont. 12 584 13. Yarberrv. 2 N. M.391 126 Terry 13. Ashton, 34 L. T. 97 '. 147 v. State, 13 Ind. 70... 292 Thacher 13. Phinney, 7 Allen, 146 454 TABLE OF CASES. lxi Tharpr. State, 15 Ala. 757 Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec.110 .... 74, 824, 845, 850-852. 855, 874, Tberasson 17. People, 82 N. Y. 238, 240. 197, Third Great West. Turnp. It. Co. 13. Loomis, 32 N. Y. 127. 139 320, 330, 331, Third Nat. Rank v. Owen, 101 Mo. 558 .. v. Robinson, 1 Baxt. 484 Thomas v. Com., 2 Rob. (Va.) 705 ' v. Newton, 2 Car. & P. 000 v. People, 67 N. Y. 218 443, r. People, 34 N. Y. 351 702, 711, V. State, 103 Ind. 419 Thomason r.Territoiy.4 N. M. 150.378, 577, Thompson v. Blanchard. 4 N. Y. 303.370, v. Com., 8 Gratt. (537 v. Com., 20ftratt. 724 ....495, V. Musser, 1 U. S. 1 Dall. 458, 1 L. ed.222 v. Page, 16 Ca). 78 v. Rose, 16 Conn. 71, 41 Am. Dee. 121 13. Shackell, 1 Mood. & M. 187 v. State, 9 Tex. App. 301 v. State, 11 Tex. App. 51 13. White, 04 111.314 Thorley v. Kerry, 4 Taunt. 355 Thorn v. Moore, 21 Iowa, 2^5. _ Thorndike r. Boston, 1 Met. 242 Thorne v. Turek,94 N. Y. 95, 46 Am. Rep. 126 ....723, Thornton, Ex parte, 9 Tex. 635.. Thornton v. Appleton, 29 Me. 300 Thrall 13. Lincoln, 28 Yt. 356 Thurston v. Wright, 77 Mich. 96 Tibbitts v. Sternberg, 66 iiarb. 201 Tidwell v. State, 70 Ala. 33 ..621, Tiernev v. Spiva, 76 Mo. 279 Tiffany u. Com., 121 Pa. 165 Timmerman v. Territory, 3 Wash. Terr. 445 Titford v. Knott, 2 Johns, (as. 211 Titus v. State, 49 N. J. L. 36 206, v. Sumner, 44 N. Y. 266 Todd v. Boone County, 8 Mo. 432 Tolbert 13. State, 87 Ala. 27. Tome v. Parkersburg- R. Co., 39 Md. 36, 17 Am. Rep. 540 Tomlinson's Case, 4 City Hall Rec. 125 _ Tompkins v. Saltmarsh, 14 Serg. & R. 17. Starr, 41 Ohio St. 305 Toogood r. Spynug, 1 Cromp. M. ic R. 181... Toome's Estate. 54 Cal. 509 Topolanckr. State, 40 Tex. 160 Townsend v. Smith, 47 Wis. 623, 02 Am. Rep. 793 _ v. State. 2 Blackf. 151 Tracey Peerage, The, 10 Clark & F. 154. Tracy v. McManus, 58 N. Y. 257 Travelers Ins. Co. v. Moslev. 75 U. S. 8 Wall. 397. 19 L. ed. 437 Travis v. Brown. 43 Pa. 9 Treat v. Browning, 4 Conn. 408, 10 Am. Dec. 156 Trevor r. Wood, 36 "n.'Y." 307 '.".".""" "".'.'.". Trimble v. State, 4 Blackf. 435 Trogdon 13. Com., 31 Gratt. 862 .461,463,700, 708, Trotter v. Maclean, L. R. 13 Ch. Div. 574 Trull v. True, 33 Me. 367 Tucker v. Ely, 37 Hun. 565 u. Henniker,41 N. H.318 v. State, 57 Ga. 503 Tully, Be, 20 Fed. Rep. 816 Turkr. State, 7 Ohio, 240 Turnbull 13. Bird, 2 Fost. & F. 508 Turner v. People, 33 Mich. 378.. 13. State, 38 Tex. 169 20'J Ttrner v. State, 89 Tenn.547 249 v. Yates. 57 U. S. 16 How. 14, 14 L. ed. 824 43 44 13. State, 8 Sme'des &" M." 104.".".".*.".".. 818 Turpin 13. State, 55 Md. 462 595 Tweedy 13. Briggs, 31 Tex. 74 252 13. State. 5 Iowa, 433 573 Tyler 13. Todd, 36 Conn. 218 116, 782 Tyner v. State, 5 Humph. 383 169 U. Udderzook v. Com., 76 Pa. 340.150, 153, 405, 549 Underwood v. State, 72 Ala. 220 173 Union Bank i\ Knapp, 3 Pick. 96, 15 Am. Dec.181 97 Union Pac. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734 691, 695 United States v. Amedy, 24 U. S. U Wheat. 392, 6 L. ed. 502 56 13. Angell, 11 Fed. Rep. 34 Ii55 V. Anthony, 11 Blatchf.200 140, 199 13. Babcock. 3 Dill. 571 92, 94 13. Bailey, 34 U. S. 9 Pet. 238, 9 L. ed. 113 789 V. Battiste, 2 Sumn. 240 141 13. Bee be, 2 Dak. 292 ]3 v. Benner, 1 Baldw. 234 51 v. Blodgett, 35 Ga. 336 257 ?\ Bridgman, 9 Bias. 221 931 13. Britton, 17 Fed. Rep. 732 79 r. Hurler, 1 Cranch, C. C. 422... .254, 267 V. Caldwell, 8 Blatchf. 131 931 v. Cashiel, 1 Hughes, 552 919 17. Chamberlain, 12 Blatchf. 390.... 782 13. Charles, 2 Cranch, C. C. 76 204 13. Clarke. 2 Cranch, C. C. 158 628 13. Coffin, 1 Sumn. 394 441 V. Cook, 84 U. S. 17 Wall. 174, 21 L. L.ed. 539 3)8 v. Cornell,^ Mason. 91 626 ». Cruikshank, 92 I'. S. 542. 23 L. ed. 588 ...383,403.743,900 13. Darton, 6 McLean, 46 168 13. Doebler, 1 Baldw. 519... 45 13. Dorsey, 3 Star Route Trials (Gov. ed.) 3188 332.907 v. Drew, 5 Mason, 28 621, 624, 627 13. Duff, 19 Blatchf. 9, 10 79, 292 17. Durkee, 1 McAll. 196 728 13. Durling, 4 Biss. 509 __ 267 13. Farriugton, 5 Fed. Rep. 313 410 13. Faulkner, 35 Fed. Rep. 730. 641 13. Ford, 99 U. S. 594. 25 L. ed. 399.506, 519 v. Foulke, 6 McLean, 349 4.: I 13. Freeman, 4 Mason, 510 6(!7 13. Gale, 109 U. S. 65, 27 L. ed. 857. . . . 255 13. Gavlord, 17 Fed. Rep. 441 79 13. Gibert, 2 Sumn. 20 72, 614 13. Goggin, 1 Fed. Rep. 49 403 13. Guiteau (D. C.) 3 Crim. L. Mag. 358 042 13. Hammond. 2 Woods, C. C. 197 203 v. Hayward, 2 Gall. 485 425 U. Hearing. 11 Sawy. 521 792 13. Hinz, 35 Fed. Rep. 272 51] 13. Howard, 3 Sumn. 12 174 13. Hughes, 34 Fed. Rep. 732 227 v. Jackson, 29 Fed. Rep. 503 440 13. Johns, 4 U. S. 4 Dall. 412, 1 L. ed. 888 56 V. Johnson, 26 Fed. Rep. 682 440 13. Jones, 10 Fed. Rep. 469 L15 13. Jones, 3 Wash. C. C. 209 90 13. King,34 Fed.Rep.302 ... it; 13. Lawrence, 4 Cranch, C. ('. 518 257 13. Lawrence, 13 Blatchf. 295 931 13. Lee, 2 Cent. Rep. 692,4 Mai 489 764 v. Liddel, 2 Wash.C.C.205 51 v. Lloyd, 4 Blatchf. 427 265 lxii TABLE OF CASES. United States i\ Long, 30 Fed. Hep. 07S 779 B. Lynn, 2 Cranch, C.C. KN 296, 301 r. >]".•< !onaughy,33 Fed.Kep.168... 782 r. McGlue, l Curt.C. C.l .... 85,623, 624, 628, 636, 663, 677, 678 0. Mese i. in (N. ST. ! I .hi. L.J.121 152 o. Mills, 32 U.S. 7 Pet. 142, 8L. ed. 637 -- ®fi v. Morris, I Curt.C. C'23 ... ... HI o. Moses, i Cranch, C.C. 17(> .. 296, 301 I). MuLholland, 50 Fed. Rep. U3 ... 136 r. Mullaney, 32 Fed. Rep. 370.. - 34] u. Mulvaney, i Park.< rim. Kep.164 468 ■v. Noelke, i7 Blatchf . 555 157 v. Oi teg . i Wash.C.C.53] 51 r. i >utei i ridge, 5 Sawy. 620 442 o. Palmer, 2 Cranch, C. C. 11 257 r. Porter, 3 Day. 283 - 168 r. Randall, Deady, 524 22U isctaer, 119 U. S. 107, 30 L. ed. ■125 935-937,940 v. Reed, 2 Blatchf. 435 »9 o. Reiter i La.) 4 Am. L. Rear. N. S. 919 o. Reyburn, 31 U. S. 6 Pet.352, 8 L. ed.424 42-44 o. Reynolds, l Utah, 319 352 r. Roudenbush, Baldw.514 ....607,626 r. Searcey, 26 Fed. Rep. 135 ....469, 476 v. Shellmire, 1 Baldw. 370 788 . pard, ! Abb. U.S. 431 413 v. Shults, 6 McLean, 121 674 r. Slenker, 32 Fed. Rep. 691 525 r. Smith. 2 Bond, 323.... 607 r. Spintz, L8 Fed. Rep.377 173 v. Strother, 3 Cranch, C. C'432 296 c. Taylor, 3 McCrary, 500 199 o. Taylor, 2 Sumn. 586 44:.' V. The Burdett,34 U.S.9Pet.i 1 . I. 273.. v. Turner, '>■: V. S. 11 How. 663, 13 L.ed.857 53 V. Vansickle,2 McLean, 219 303 V. Walsh. 22 Fed. Rep. 644 199 c. Warr, 3 X. Y. Leg. Obs.346 933 v. Watts, 8 Sawy. 370 935 o. Whitaker,6 McLean, 342... 601 0, White, 2 Wash. C. C. 29 257 r. Whittier, 5 Dill. 35 526 V. Wiggins, 39 U. S. 14 Pet. 334. 10 I., ed. . Hopkins, 5 Johns. 211, 4 Am. Dec. 339 . 887 Van V •■ intnall, 86 X. V. 18, to Am. Rep. 505. 804 Van Wyck o. Aspenwall, 17 X. Y. 190 889 c. Mcintosh, 14 X. Y. 439 7^1 Varick r. Jackson, 2 Wend. 166, 19 Am. Dec. 571 325 Varnadoe v. State, 67 Ga. 768 105 Vass v. Com., 3 Leigh, 786, 24 Am. Dec. 695 540 Vaughan u. Com., 17 Gratt. 576 4H5 r. State, 83 Ala. 55 410 Vaux's Case, t Coke, 45 012 Vickery r. McCormack, 117 Ind. 594 .... 259 Vincent, Ex parte, 26 Ala. 145, 02 Am. Dec. 714.. 751 Vincent i\ State. 3 Heisk.120 290 Vinton v. Peck, 14 Mich. 295 no Virginia a- T. K. Co. v. Sayers, 20 Gratt. 351.. 108 Vischer v. Conant. 4 Cow. 896 6S ees, Re, 32 X. .1. L. 144 10, 329 Vowells i'. Com., 83 Ky. 193 616 Vowlesu. Young, 13 Ves. Jr. 145 864 W. Wade v. State, 65 Ga. 756 688- Wadge, R . 15 led. Rep. 864, 21 Blatchf. 300 987, 932,944 Wagener i>. Bill, 19 Barb. 321 632 Wasrner v. People, 4 Abb. App. Dec. 509 030, 638, 07S v. People. 2 Keyes, 6S4 642 0. State, 110 Ind. 181 628 Wahl, Be. 15 Blatchf. 334. 945 Wait r. .\rxeil.7 Mass. 261.. 240 Walbridge v. Kilpatrick, 9 Hun, 135 .... 85 r. State. 13 Xeb. 236 546 Waldele r. New York Cent. & H. R. R. Co., 19 Hun, 69 533 Wales v. Whitney, 114 U. S. 504, 29 L. ed. 277 917 Walker v. Curtis, 110 Mass. 9S 98, 153 v. People, 88 N. Y. 81. 426, 641 v. Sauvinet, 92 U. S. 90, 23 L. ed. 678 383 v. State, 13 Tex. App. 618 100 v. State, 85 Ala. 7... 575, 576 r. State, 102 Ind. 502 602 f. Walker, 14 Ga. 242 157, 158, 327 v. Winn, 8 Mass. 248 898 Wall D. State, 18 Tex. 682, 70 Am. Dec. 302... 405 Waller v. State, 38 Ark. 050 13 V. State, 40 Ala. 325 810 v. Stewart, 4 Cranch, C. C. 532 46 Walsh i). People, 88 N. Y. 458... 183, 637 Walfeton v. Com., 16 B. Mon. 15 387 Walter v. People. 32 X. Y. 147 .25, 428 v. People, 50 Barb. 144. 419, 837 v. State, 105 Ind. 589... 610 Walters i\ Jordan, 35 N. C. 361. _ 198 v. People. 6 Park. Crim. Rep. 15 .. 120 r. State, 39 Ohio, 215 688 Walton o. Slate, 88 Ind. 9 303 Wandell v. Edwards, 25 Hun, 498 606 Wanzer r. Bright. 52 111. 35 931 Ward v. Bonis, 14 Xeb. 114 80 v. State, 2 Mo. 120 300 r.State, 50 Ala. 120.... 496 Warden r. State. 00 Miss. 040 726 Ware r. State, 67 Ga. 349 688 0. State, 33 Ark. 507 737 Waring v. Warren, 1 Johns. 340 2*>4 Wark v. Willard, 15 X. H. 390 900 Warner v. Com.. 2 Va. Cas. 95 -.805, 807, 809 t'.Lockerby, 31 Minn. 421 363 t). State, 114 Ind. 137 641 Warren i'. Com., 37 Pa. 45 771 V. Dickson, 27 111. 115 439 v. Gabriel, 51 Ala. 235 370 Warrick, E.r parte, 73 Ala. 57 292 Wartena r. State, 105 Ind. 445 641 Warwick 0. White, 76 X. C. 175 861 Washburn, Be, 4 Johns. Ch. 106 920 EABLE OF CASES. lxiii Washburn v. Cooke, 3 Denio. 110 891 v. Cuddihy, 8 Gray, 430 149 Washington v. State, 17 Tex. App. 197.. 283 o.State, 58 Ala. 355 428 v. State. 8 Tex. App. 377. - 552 Wason r. Walter, 38 L. .). Q. B. 31. 894 Waterman v. State, &i 111. ill 772 Waters v. State, 51 Md. 430 202 Watertown Rank & Loan Co. 13. Mix, 51 N. Y.561 227 Watkins 13. Paine. 57 Ga. 50 80 c. Wallace, 19 Mich. 57 454, 455 Watry r. Ferber, 18 Wis. 501, 86 Am. Dec. 789 606 Watson v. Com., 15 Va. L. .7. 379 348 v. Com., 95 Pa. 418, 424 515,688 v. McLaren, 19Wend.557. 260 v. People, 87 N. Y. 561, 41 Am. Rep. 397 702 v. Roode, 30 Neb. 264 86 13. State. 63 Ind. 548 529 Watt 13. People, 1 L. K. A. 403, 126 111. 9. 770 Watts v. Green, 30 Ind. 98 260 Way v. Butterworth, 106 Mass. 75 410 v. State, 35 Ind. 409. 734 Wayne County Turnp. Co. r. Berry, 5 Ind. 286 258 Weaver v. Lloyd, 4 Dowl. & R. 2:10 898 Webb v. State. 29 Ohio St. 351.... 374 v. State, 9 Tex. App. 490.. 640 v. State, 8 Tex. App. 310 743 Webster v. Com., 5 Cush. 295, 52 Am. Dee. 711 585 v. Jones, 7 Dowl. & R. 774 68 V. Lee, 5 Mass. 335 325 v. People, 92 N. Y. 422 165, 394 Weed 13. Bibbins, 32 Barb. 315 .. 887 c. Mutual Ben. L. Ins. Co., 70 N. Y. Y.561 Weeks 13. State. 79 Ga. 36 764, 770 Welde v. Davidson. 15 Minn. 330 ~0u Welch v. Sackett, 12 Wis. 257 16 u.Ware, 32 Mich. 77.. 70 Welden v. State, 10 Tex. App. 400 515 Wellar ». People. 30 Mich. 20 . . 124, 262. 407 Wellington, Re, 16 Pick. 87,26 Am. Dec. 631 205 Wells 13. State, 4 Tex. App. 20 173 Welsh v. Barrett, 15 Ma«. 380 97 Wentworth r. Buhler, 3 E. D. Smith, 309 331 13. Lloyd, 33 L. J. Ch. 688 221 Wentworth 13. Wentworth, 71 Me. 72.... 23 Wenz v. State, 1 Tex. App. 36 626 Wern wag v. Chicago & A. R. Co., 20 Mo. App. 473 104 Wesley 13. State, 37 Miss. 327, 75 Am. Dee. 62.. 601, 606 West v. Camden, 135 U. S. 507, 34 L. ed. 254 198 V. State, 2 Tex. App. 460, 18 Tex. App. 640 594 v. State, 1 Wis. 217 854 West Cambridge v. Lexington, 1 Pick. 506 ....864 West Coast Lumber Co. v. Newkirk, 80 Cal. 275 258 Westmoreland v. State, 45 Ga. 225 636 Weston v. Com., Ill Pa. 251 45(5. 597, 764 13. United States, 5 ( 'ranch. ('.('. 194 725 Weston & P. R. Co. v. Cox, 32 Mo. 456 260 Weyman 13. People, 4 Hun. 511.. 700, 711. 713 Whaley v. State, 11 Ga. 123.. 504 Wharton v. State. 73 Ala. 366 37 Wheat 13. Cross, 31 Md. 99, 1 Am. Rep. 28 92 i3. st&^h'iio.^Y.'.Y.". ....'....'.'. 426 Wheelden 13. Wilson, 44 Me. 1 455 Wheeler v. Wallace. 53 Mich. 356... 334 Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661 198 Whilden v. Merchants & P. Nat. Bank, 84 Ala. 1, 38 Am. Rep. 1 . . .91, 93, 95 Whitcher 13. McLaughlin. 115 Mass. 167. 97 White, Ke, 9 Sawy. 19, 17 Fed. Rep. 723. 917 White 13. Com.. 6 P.inn. 179 405 13. Howard, 46 N. Y. 144... 862 V. M urtland, 71 111.250. 22 Am. Rep. 100 ...©.16,879' 13. Nicholls, 44 U. S. 3 How. 266, 11 L. ed. 591 888.890,891 13. State. 72 Ala. 195 71 13. State, 52 Miss.216 199 13. State, 10 Tex. App. 381 371 B. State, 53 Ind. 595 454, 455 13. State, 30 Tex. App.652.. 576 v. Territory, 3 Wash. Terr. 397.... 572,575,581,584, 594 13. Tucker, 16 Ohio St. 468 455 Whiteford v. Com., 6 Rand. (Va.) 735.191, 448 Whitehead 13. Com., 19 Gratt. 640 2.55 13. State, 20 Fla. 841 737 Whitenack v. Whitenack. 36 N.J. Eq. 474 850 Whitfield 13. Aland, 2 Tar. & K. 1015 97 Whiting 13. Barney, 30 N. Y. 330. 316 c. Nicholl, 46 111. 230, 92 Am. Dec. 23 Whitlev 13. State, 38 Ga. 50 536 Whitman 13. Morey, 63 X. H. 448.... 372, 373 Whittaker v. Com., 13 K'v. L. Rep. 504.. 584 13. State, 50 Wis. 518, 36 Am. Rep. 815 Whltten 13. State. 36 Ind. 211 265 r. State, 61 Miss. 717 616 Whizenant v. State, 71 Ala.383 454 Wick- 13. Com.. 2 Va. Cas. 387.... 405 Wiegand.iJe, 14 Blatchf. 370 944 Wiggin v. Coffin, 3 Story, 7. 441 13. Scammon, 27 N. H. 360 70 Wiargins 13. Holley, 11 Ind. 2.. 321 13. Utah, 93 D. S. 165, 23 L. ed. 941.. 571, 581, 594, 766 Wilburn v. State. 21 Ark. 198 255 . >hio St. 520 943 Wilder v. State. 250hio St. 555 252 Wiley r. State 3 Coldw. 362... 504 Wilke !>. People, 53 N. Y. 525 281 Wilkins r. Earle, 44 N. Y. 172. 3 Am, Rep. 655 27 Wilkinson 13. Adam, 1 Vis. & B. 422 864 v. Payne, 4 T. R. 4(38 18, 19 Willard v. Santa Barbara County Sup. Ct., 82 Cal. 450 268 13. State, 27 Tex. App. 386 466 Willet 13. Coin., 13 Bush, 230. 630 Willett 13. People, 27 Hun, 469 85 William v. State, 53 Ga. Supp.) 85 281 Williams )'. Brickell, 37 Miss. 682, 75 Am. Dec. 88 89 u. Chadbourne, 6 Cal. 559 382 13. Com., 91 Pa. 493 219,794, 798 13. Eldridge, 1 Hill, 249, 255 320 13. Fitch, 18 N. Y. 546.. 418 D. Hartford Ins. Co , 54 Cal. 449... 415 v. Hayes, 20 X. Y. 58 159 v. Jarrot, 6 111. 130 324 v. Karnes, 4 Humph. 9 898 13. People, 101 111.382 37 v. People, 24 X. Y. 405 737 13. Reed, 29 N. J. L. 385 931 1). Sargeant, 46 N. Y. 482. 335 13. State, 67 G a. 260. 13 13. State, £5 Ark. 430 426 13. State, 3 Tex. App. 316 441 v. State. 55 Ga. 391 525 V. State, 41 Tex. 209 516 13. State, 15 Tex. App. 401 771 13. State, 54 Ala. 131, 25 Am. Rep. 665.. sill v. Stat.', 44 Ala. 24 .805, 807, 8(l<) 13. State, 20 Fla. 777 832 13. State, J4 Ohio, 222, 45 Am. Dec. i ■ R32 13. State, 8 Humph. 585 836 lxiv TABLE OF CASES. Willis i'. Com., 22 Alb. L. J. 170 0?8 o. Com., 32 Gratt. 929 757 r. People, ;t-' N. Y. 715 . 642, 678 Willougbby p. Dewey, 54 111. 266 7" Wills r. People, 3 Park. Crim. Rep. 473 i31 Wilson v. Abrahams, 1 Bill,207 253 v. Beauehamp. 50 Miss. 24 ... L16 V. Boerem, 15 Johns. 287 533 v. Bowie, 1 Car. & P. 10 46 r. Minneapolis A: N. W. R. Co., 31 Minn, 481 90 v. People, l Park. Crim. Rep. 619 190 v. People, 94 111. 327 .. .. ."•'.: v. People, 39 N. V. 159 728 v. Pei pie, 84 Mich. 410 758 p. Smith, 5 Yerg.381 249 r. South Park Comrs.,70 111. 40.... 778 V. State iFla.) 17 L. If. A. 654 575 v. State, 18 Tex. App.576... 594 ,-. siat.-, 15 Tex. 77, 23 Am. Rep. 602 614 v. State, 24 » lonn. 57 618 p. state. 73 Ala. 527 878 p. State, 5- Ga. 328 879 d. Wilson, Wright (Ohio! 128... 850 Wilson's Trusts, Be, L. R. 1 Em- Cas. 247 862 Winchell p. Edwards. 57 111.41.... 29 Windsor, Ex parte, 10 Cox. C. C. 121... 924 Winkleyu Foye,33N. II. 171 258 Winnv. State. 43 Ark. 151... 157 Winscom ». Winscom, 3 Swab. & T. 380 68 Winston P. Mosely, 2 Stew. (Ala.)137... 370 p. Wales, 13 Mo. 569 231 Winter v. Butt, 2 Mood. & R. 357... 373 Wither p. Buckley, 61 U.S. 20 How. 84, 15 L. ed. 816 383 Withers v. Gillespy, 7 Serg. & 11.14 48 Witt p. State, 6 Coldw. 5 ... ... 405 Wittkowsky p. Wasson, 71 X C. 451 231, 233 Wixson p. Pe iple, 5 Park. Crim. Rep. 119 520 Woburn p. Henshaw," "l0i"Mass.'i93,"3 Am. It. p. 333 352 Wolcott p. Yeager, Hind. 84.. 260 Wolfe p. Hauver, 1 Gill, 84 370 p. Missouri Pac. R. Co., 3 L. R. A. 539. 97 Mo. 473 1*4 Wolkoff p. Tefft, 35 N. Y. S. R. 93 597 Wolstenholme p. Wolstenholme File Mfg. Co., 3Lans. 467. 281 Wolve t( , 16 Ohio, 173. 47 Am. Dec. 373 - 15, -i 7, 309 Wood p. Cooper, 1 Car. & K. 64". 57,97 p. Cullen, 13 Minn.394 43 p. Gale, 10 N. H. 247, 34 Am. Dec. 150 823,855 v. People, 59 N. Y. 117 404, 795 r. Stat". 92 Ind. 269 127, 320, 576 p. State, 48 Ga. 192, 15 Am. Rep. 664 ....879, 880 r. United States. 41 V. s. 16 Pet. 342, H» L. ed. 987.. .72, 460, 700, 714 v. Wood, 2 Paige, 108, 28 Am. Dec. 451 .. ... 69 Woodbeck p. Keller, 6 Cow. II 1 - ....797,798 Woodcock p. Houldsworth, 16 Mees. & W. 1 94 Woodford p. McClenaban, 9 111. so 109 p. People, 5 Thomp. & C. 589 546 Woodman p. Buchanan, L. K. 5 Q. B. r. Dana, 52 Me. 13 115 Woodrow v. O'Connor, 28 Vt. 776 53 Woolen p. Whitacre, 93 Ind. 502 188 Wooley p. United States, 20 L. R. 631... 919 Woolfolk p. State, 81 Ga. 551 583 Wooster p. State. 55 Ala. —I.. 133 Wooten p. Nail, 18 Ga. 609. 46 Word p. Com., 3 Leigh, 743 45 Work v. Stevens, 76 End. 181 188 Worley v. Moore, 97 Ind. 15 198 p. State, 11 Humph. 172 441 Worrall p. Parmelee.l N. Y. 519, 49 Am. Dec. 350 412, 418, 419 W r orth v. Chicago, M. & St. P. R. Co., 51 Fed. Rep. 171 583 Wrav r. People, 78 111. 212 165 Wren v. Wield, L. R. 4 Q. B. 213 68 Wright, Be, 2 Kay & J. 595 862 Wright p. Doe, 7 Ad. & El. 313 245,450 v. Fansler, 90 Ind. 492 195 v. Pasre, 36 Barb. 441 887 V. People, 4 Neb. 407 ....26, 635, 636, 639 v. Smith, 22 Gratt. 880 448 v. State, 69 Ind. 163, 35 Am. Rep. 212 193,4*3,437 v. State, 7 Tex. App. 574, 32 Am. Rep. 599 525 V. State, 5 Ind. 292, 61 Am. Dec. 90. 617 p. Willcox, 9C. B. 650 335 v. Woodgate, 2 Crump. M. & R. 573 896 r. Wright, 6 Tex. 3. 801 Wroe v. State, 20 Ohio St. 460 536 Wusing p. State, 33 Tex. 651 631 Wynehamer v. People, 13 N. Y. 378. .191, 255 Yanke v. State, 51 Wis. 464 349 Yarbrougb, Ex parte, llou. S. 651. 28 L. ed. ~'74 944 Yates p. Yates, 76 N. C. 143... 116 STeager p. Wright, 112 Ind. 230 249 Yoe p. People, 49 111. 410 144, 145, 149 Yeoman p. State. ~1 Neb. 171 839 Yeomans v. Petty, 40 N. J. Eq. 495 116 Young- v. Bank of Alexandria, 8 U. S. 4 Cranch, 384, 2 L. ed. 655 56 v. Com., 6 Bush. 312 57:; r. Makepeace, 103 Mass. 50 862 v. Rex, 3T. R. 98 703 v. State, 6 Ohio, 4:36 255 p. State, 68 Ala. 569 493, 497 Youngs v. Heffner, 36 Ohio St. 232 23 Zabriskie v. State. 43 N. J. L. 640, 39 Am. Rep. 610 877, 880 Zachary v. Pace, 9 Ark. 212, 47 Am. Dec. 744] 198 Zeigler v. Henry, 77 Mich. 480 86 Zell p. Com., 94 Pa. 558 159 Zimmerman, i?e. 30 Ef-d. Rep. 176 908 Zink v. People, 77 N. Y. 114, 33 Am. Rep. 589 706, 723,738 Zuber v. Geigar, 2 Yeates, 522 240 LAW OF EVIDENCE IN CRIMINAL CASES. PART I. DISCUSSION AND SUMMARY OF GENERAL RULES. CHAPTER I. INTRODUCTION. J 1. Preliminary Suggestions. 2. What Distinguishes Criminal from Civil Evidence. 3. The Term "Evidence" Defined. 4. Definitions from the Celebrated Field Code. 5. Differences in the Effect of Evidence. 6. Observations on the Rules of Evidence. 7. What is Embraced in the Term " Cr. 8. What is Criminal Laic. 9. Principals and Accessories. § 1. Preliminary Suggestions. — The object of all evidence tinder every scheme of jurisprudence that has ever been recog- nized as worthy of that name has been the evolution of truth in its entirety, subject only to the limitation that it must be relevant to the issue tried. It follows as an obvious corollary that the same rules that are designed for the development of truth in a civil .action apply with equal force to a criminal case. A step further on will lead to the assertion that all evidentiary matter involved under such subdivisions as are comprehended in judicial imrice. prima facie evidence, best and secondary evidence, hearsay, relevancy, etc., sustain the same relation in both classes of cases. Indeed, it may be affirmed that criminal evidence differs from ■civil evidence merely in matters of specialized application; and the most minute investigation of our theme will merely disclose 1 1 2 LAW OF EVIDENCE IN CKIMINAL CASES. the fact that our concern is with the modification, the deflections,.; the singularities, — the aberrations, if you will, — that experience in criminal prosecutions has engrafted upon the rule of civil evidence. It is to the study of these specialized applications that it is the- design and import of this work to assist in directing. The foregoing paragraph, in the reasoning it contains, will be sufficient justification in the present work for the somewhat meagre treatment accorded to those great sub-headings of the general law of evidence which, by virtue of their apt and well recognized application to both civil and criminal evidence, have been accorded extended treatment in the volumes already before the profession. By means of this abridgment, it is hoped to bring the thorough treatment of the entire scheme of civil and criminal evidence- wit hin the compass of three volumes; and where an apparent deficiency exists in the treatment, let the critic investigate the entire text before proceeding to condemn. These remarks are especially pertinent in view of chapter 1, Civil Evidence. In the present volume most if not all the topics composing those chapters were carefully amplified under similar headings in volume 1, Civil Evidence, which will be found to supplement the examination here given in many desirable ways. § 2. What Distinguishes Criminal from Civil Evidence. — What are the distinguishing characteristics between criminal and civil evidence? Is the line of cleavage so well defined as to war- rant a separate treatment, and upon what lines should such treat- ment be extended? The appearance of this work will indicate at. least the editorial view, which is accompanied however with the- assertion that it is the weight of evidence that creates and main- tain- the fundamental distinction. This distinction is further emphasized by the fact that criminal prosecutions involve different applications of the law of evidence from those in vogue in civil cases, where the parties approach the- contention indicated by the pleadings upon terms of proximate equality with perhaps a slight presumption in favor of the plain- tiff, who having committed himself to specific allegations of injury tritably presumed to be in a situation to prove his case. In criminal prosecutions, however, there is an antipodal relation between the primacy accorded to the state, with all the parapher- nalia of the law ro maintain its dignity and sustain its cause, and the alleged offender, often friendless and in penury; and always- INTRODUCTION. 6 laboring under the derogatory imputations that a criminal indict- ment is presumed to transmit. In this immediate connection, it is appropriate to outline the last and greatest distinction that char- acterizes civil and criminal evidence. The law, in its tender solici- tude for the life and liberty of the citizen, seeks to equalize the inequalities between the state and the accused, by conjuring up as a staunch ally of the accused, one who accompanies him from the moment of apprehension to the moment of conviction, one who is doubly armed with those mighty bulwarks of the crim- inal law — -presumption of innocence and reasonable doubt. To overcome this presumption, and to dispel this doubt, the prosecution must direct its energy. It must prove every averment of its indictment. It must establish its case by convincing testi- mony. It must assume the integrity of the accused ; and substan- tiate its position without the aid of his testimony. Through all the mutations of the trial, the burden of proof is with the state. These peculiar characteristics of criminal evidence generate in their turn a hoard of peculiarities that necessitate constant atten- tion in a criminal trial; and the difficulty is, that they assume a varying importance in proportion to the magnitude and heinous, ness of the offense. However, to indicate all of these differences, is the very object of this book ; and we refrain from further par- ticularization in this introductory chapter. § 3. The Term " Evidence " Defined.— Evidence is the means employed for the purpose of proving an unknown or disputed fact, and is either judicial or extra-judicial. Judicial evidence is that which is used on trials or inquiries before courts, judges, com- missioners, referees, etc., while extra-judicial evidence is that which is used to satisfy private persons as to facts requiring proof. Eapalje & Lawrence, Law Diet., title Evidence. Every determi- nation of the judgment, whatever may be its subject, is the result of evidence. Proof and evidence are constantly used in practice as synony- mous, and are sometimes so treated in the books. Properly speak- ing, however, evidence is only the medium of proof; proof is the effect of evidence. Burrill, Law. Diet., title Proof. The term "proof" is often confounded with that of "evidence,' 1 and applied to denote the medium of proof, whereas in strictness it marks merely the effect of evidence. When the result of evi- dence is undoubting assent to the certainty of the event or propo- 4 LAW OF EVIDENCE IN CRIMINAL CASES. sitibu which is the subject-matter of inquiry, such event or proposi- tion is said to be proved; and, according to the nature of the evidence on which such conclusion is grounded, it is either known or believed to he true. Our judgments, then, are the consequence of proof; and proof is that quantity of appropriate evidence which pr< "duces assurance and certainty ; evidence, therefore, differs from proof, as cause from effect. Wills, Circ. Ev. p. 2. " The term ' evidence ' is to be carefully distinguished from its synonyms, 'proof and 'testimony.' 'Proof is the logically suffi- cient reason for assenting to the truth of a proposition advanced. In its judicial sense it is a term of wide import, and comprehends everything that may be adduced at a trial, within the legal rules, for the purpose of producing conviction in the mind of judge or jury, aside from mere argument; that is, everything that has a probative force intrinsically, and not merely as a deduction from or combination of, original probative facts. But ' evidence ' is a narrower term, and includes only such kinds of proof as may be legally presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, records, or other docu- ments. Thus, to urge a presumption of law in support of one's case is adducing proof, but it is not offering evidence. ' Testi- mony,' again, is a still more restricted term. It properly means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions. Thus, an ancient deed, when offered under proper circumstances, is evidence, but it could not strictly be called ' testimony.' * I3elief ' is a subjective condition resulting from proof. It is a conviotion of the truth of a proposition, existing in the mind, and induced by persua.-i( »n, proof, or argument addressed to the judgment." Black, Law. Diet, title Evidence, Evidence is "any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. The fact sought to be proved is termed the 'principal fact;' the fact which tends to establish it, 'the evidentiary fact.' " 1 Bentham, Jud. Ev. 17. L8. It is that which brings or contributes to bring the mind to a just conviction of the truth or falsity of the fact asserted or denied. 1 Livingston's Works, (ed. 18T3) 419. The word signifies in its original sense, the state of being evi- dent, i. e. plain, apparent or notorious. But by an almost peculiar / INTRODUCTION. O inflection of our language, it is applied to that which tends to render evident or to generate proof. Best, Ev. § 11. This is the sense in which it is commonly used in modern law books, and will be used throughout this work. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself — such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance. Evidence is generally considered improbable when it imputes to the parties to a transaction, occurring in the ordinary course of business, conduct inconsistent with the principles by which men, similarly situated, are usually governed. Daggers v. Van Dyck 37 K J. Eq. 130. § 4. Definitions from the Celebrated " Field Code." — After '' an extended survey of the entire field of definition and after a critical review of every treatise bearing upon the topic, the con- viction remains that the celebrated " Field Code " of California contains by far the most satisfactory statement of what evidence is, in juridical contemplation, of any to be met with in the entire range of legal literature. In proof of this the text of §§ 1823-1839, inclusive, is herewith furnished. The rare aptitude of its distin- guished author for condensed and perspicuous expression here receives a most vivid illustration. § 1823. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a ques- tion of fact. § 1824. Proof is the effect of evidence, the establishment of a fact by evidence. § 1825. The law of evidence is a collection of general rules estab- lished by law : 1. For declaring what is to be taken as true without proof ; 2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and, 3. For the production of legal evidence ; 4. For the exclusion of whatever is not legal ; 5. For determining in certain cases the value and effect of evidence. t a
  • and usages of merchants; the seals of notaries; things- which must happen according to the laws of nature; the coinci- dence of the days of the week with those of the month; the meaning of the words in the vernacular language; the customary abbreviations of Christian names; the accession of the chief magistrate to office, his leaving it, and the appointment of mem- bers of his cabinet; the election and resignation of senators; the appointment of marshals and sheriffs, but not of their deputies; of the ports and waters where the tide ebbs and flows; of the boundaries of the states, and of judicial and collection districts. Brown v. Piper, 91 U. S. 42, 23 L. ed. 201. Statutes prescribing the boundaries of the territory, and its- division into judicial districts, are public acts, which the courts are bound to know, and of which they will take judicial notice. 12 JUDICIAL NOTICE. 13 The limits of such divisions are therefore of judicial cognizance; and so with regard to leading places and the geographical features of the land within such limits; as also with regard to the location and position of leading cities, villages, and public places therein. United States v. Beebe, 2 Dak. 292. Besides those facts of which courts are bound by law to take judicial notice, they will ordinarily only take notice of facts of universal notoriety, — of facts that are so generally understood that they may be regarded as forming part of the common knowl- edge of every person. Brown v. Piper, 91 U. S. 41, 23 L. ed. 201; Kaolatype Engraving Co. v. Hoke, 30 Fed. Rep. 441. To aid the court, a document which is a proper source of gen- eral information for the purpose, may be handed up to the judge. Abbott, Trial Brief, § 494, citing Case v. Perew, 46 Hun, 57. § 2. Judicial Notice Excludes the Necessity of Proof. — •" No evidence of any fact of which the court will take judicial notice need be given by the party alleging its existence, but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, refer to any person or document or book of reference for his satisfaction, in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling on him to take such notice produces any such document or book of reference." Stephen, Dig. art. 59. See also Kennedy v. Com. 78 Ky. 447; Rodgers v. State, 50 Ala. 102; Dorman v. State, 56 Ind. 454; Williams v. State, 67 Ga. 260; Briffitt v. State, 5S Wis. 39; Waller v. State, 38 Ark. 656; Gallagher v. State, 10 Tex. App. 469; State v. Johnson, 26 Minn. •316; United States v. Beebe, 2 Dak. 292; State v. Bowen, 16 Kan. 475. § 3. Late Statutes Relating to the Subject. — The most ex- tended survey of the adjudications relative to this subject of judicial notice has failed to disclose the presence of any more apt and concise expressions than those contained in sections 707-708 of the Statutory Law of Oregon. The recitals of those sections crystalize the entire tenor and trend of American adjudication on the subject; and the legitimate inferences to which the language used may be justly subjected, will demonstrate the rare force and precision of the terms employed. 1 append this entire text of these justly celebrated sections. Courts take judicial notice of the following facts: ]± LAW OF EVIDENCE IN CRIMINAL CASES. 1. The true signification of all English words and phrases, and of all legal expressions. 2. Whatever is established bylaw. 3. Public and private official acts of the legislative, executive,. ami judicial departments of this state and of the United States. •1. The seals of all the courts of this state and of the United Stat,-. 5. The accession to office, and the official signatures and seals of office, of the principal offices of government in the legislative, executive, and judicial departments of this state and of the United States. 6. The existence, title, national flag, and seal of every state or reign recognized by the executive power of the United States. 7. The seals of courts of admiralty and maritime jurisdiction, and of notaries public. 8. The laws of nature, the measure of time, and the geographi- cal divisions and political history of the world. In all these cases the court may resort for its aid to appropriate 1 »< 'i iks or documents of reference. This subject of judicial notice has been accorded extended treatment in 1 Rice, Civil Evidence, chap. 2. To avoid extended reduplication we refrain from further comment. CHAPTER III. PRESUMPTIONS. § 13. The Term Defined. 14. Presumptions of Law. 15. Presumptions of Fact. 16. Presumptions of Innocence. 17. Presumptions of Legitimacy. 18. Presumptions of Death. a. Raised by Continuous Absence of Seven Years. b. No Presumption as to the Time of Death Arises from Mere Absence. c. How Established. d. Importance of this Presumption in Criminal Law. e. Suicide. 19. Presumption of Sanity and Responsibility. 20. Presumption where Accused is under Seven Years of Age. 21. Continuance. 22. Presumption of Guilt Arising from Silence and Conduct Gen- erally. 23. Presumption of Natural Consequences of Act. 24. Statutory Law of California on the Subject. § 13. The Term Defined. — "A presumption arises, where, some- facts being proved, another follows as a natural or very probable conclusion from them, so as readily to gain assent from the mere probability of its having occurred, without further proof. The fact thus assented to is said to be presumed, that is, taken for granted, until the contrary be proved by the opposite party; stabiter jpraesumjptioni donee jprobetur in contrarium. And it is adopted the more readily, in proportion to the difficulty of prov- ing the fact by positive evidence, and to the obvious facility of disproving it, or of proving facts inconsistent with it, if it really never occurred. It is, therefore, we have seen, adopted in proof of intent, of the willful doing of an act, of malice, and of guilty knowledge, for these can be proved only by the admission of the party, or from his overt acts, from which the jury may infer oi presume them. It is adopted, also, in proof of the commission of the offense itself, in the absence of evidence of any person who- 15 10 LAW OF EVIDENCE IN CRIMINAL CASES. actually saw it committed, as shall be noticed presently." Arch- bold, Criin. Pr. & PI. 134. A presumption is a rule of law, that courts and judges shall draw from certain facts, certain inferences; it stands as a rule dispensing, in certain cases, with any ulterior inquiry. It assumes a certain condition of tilings to exist until the contrary is shown. Schuylkill <& J). In p. d ) IL Co. v. Munson, 81 U. S. 14 Wall. 449, 20 L. ed. 872. "A presumption of any fact is properly an inference of that fact from other facts that are known; it is an act of reasoning, and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascer- tained by inference in a court of law, very few offenders could be brought to punishment." Hex v. Burdett, 4 Barn. & Aid. 161. It is a species of evidence which proceeds upon the theory that the jury can infer the existence of a fact from another fact that is proved, and which most usually accompanies it. Home Ins. Co. v. Weide, 78 U. S. 11 Wall. 440, 20 L. ed. 198. See also Stanley v. State, 26 Ala. 30; Binns v. State, 66 Ind. 432; Chesleij v. Brown, 11 Me. 146; Bow v. Allenstown, 34 N. H. 365, 69 Am. Dec. 4S9; Snediker v. Everingham, 27 K J. L. 150, 153; Pa its x'. Jackson, 6 Wend. 181; Jackson v. Warford, 7 Wend. 66; McConneWs App. 97 Pa. 34; Oaks v. Welter, 16 Vt. 71; Welch v. Sackett, 12 Wis. 257. § 14. Presumptions of Law. — With regard to presumptions of law there is not much difficulty, the circumstances under which they arise being generally pretty clearly defined. It is not so, however, with regard to presumptions of fact, there being fre- quently the difficulty not only of deciding whether a particular presumption ought to be made at all, but which of several pre- sumptions arising out of the same state of facts is the right one. In civil eases it is always necessary for a jury to decide the question at issue between the parties, and, whatever be their deci- sion, the rights of the parties will accordingly be affected; however much, therefore, they may be perplexed, they cannot escape from giving a verdict founded upon one view or the other of the con- flicting facts before them; presumptions, therefore, are necessarily made on comparatively weak grounds. Put in criminal cases there is always a result open to the jury, which is practically PBESUMPTIOflS. 17 looked upon as merely negative, namely, that which declares the accused to be not guiltv of the crime with which he is charged. In cases of doubt it is to this view that juries are taught to lean. 1 Phil. Ev. (10th ed.) 456; M'Xally, (Mm. Ev. 578. " Great cau- tion is, doubtless, necessary in all cases of presumptive evidence, .and, accordingly, Lord Hale has laid down two rules with regard to the acting upon such evidence in criminal cases. "I would never," he says, "convict any person of stealing the goods of a certain person unknown, merely because he could not give an account how he came by them, unless there was due proof made that a felony was committed of these goods." And again, "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." 2 Hale, P. C. 290. So it is said by Sir William Black- stone, 4 Bl. Com. 359, that all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape, than that one innocent suffer. See 1 Jtoscoe, Crim. Ev. 16. Presumptions of law are, in reality, rules of law and part of the law itself; and the court may draw the inference whenever the requisite facts are developed, whether in pleading or otherwise, while all other presumptions, however obvious, being only infer- ■.ences of fact, cannot be made without the intervention of *a jury. Pest, Presumptions, IS. The presumption of innocence, of sani- ty, that all men are free, etc., are examples of presumptions of law. So, too, a promise will be implied from a legal obligation. But the presumption of the existence of one fact from the exist- ence of another, that is, the progress of ascertaining one fact from the proof of another fact, is within the exclusive province of the jury. 1 Green! . Ev. § 48. The usual presumption as to a ship which becomes distressed, or founders without apparent cause shortly after leaving port, is that she was unseaworthy when she sailed; but the presumption is one of fact and for the jury, under instructions from the court, and subject to the power of the court to set aside the verdict if against evidence. Best, Presumptions, 50. Whether an agreement to pay interest is to be presumed from the established usage and custom is a question for the jury. Jleech v. Smith, 7 Wend. 315. When there is a dispute as to the facts which go to prove the making of a new promise, whether a sufficient promise has been made to take the case out of the 2 18 LAW OF EVIDENCE IN CRIMINAL CASES. statute of limitations, is a mixed question of law and fact for the- jury. Clarke v. Butcher, 9 Cow. 074. Presumptive evidence and the presumptions or proofs to which it gives rise are not indebted for their probative force to any rules of positive law; but juries, in inferring one fact from others which have been established, do nothing more than apply, under the sanction of the law, a process of reasoning, the force of which rests on experience and observation, and such inferences are pre- sumptions of fact. Best, Presumptions, 15, § 14; Morgan v. Bavey, 6 Hurlst. & N. 265. Presumptions are of two classes, natural and legal or artificial. The natural presumption is, when a fact is proved, wherefrom by reason of the connection founded on experience, the existence of another fact is directly inferred. The legal or artificial presump- tion is, where the existence of the one fact is not direct evidence of the existence of the other, but the one fact existing and being proved, the law raises an artificial presumption of the existence of the other. Forbearance to enforce a pecuniary demand for twenty years, is not direct evidence that the money has been paid, but on the fact of forbearance, the law builds a presumption that the demand has been satisfied, since it wisely supposes a man will sooner recover and enjoy what belongs, or is due to him, unless prevented by some impediment. The law gives to the evidence a technical efficacy beyond its simple and natural force and opera- tion. Inasmuch then as this is but a presumptive bar, the fact which the lapse of time conduces to prove must be pleaded, and not the mere lapse itself. Gulick v. Loder, 13 1ST. J. L. 68. § 15. Presumptions of Fact. — Presumptions of fact are but inferences drawn from other facts and circumstances in the case, and should be made upon the common principles of induction. I am aware that many of the elementary writers have said that pre- sumption may be looked upon as bold inferences pushed further than the facts established will strictly warrant. Gresley, Equity Ev. 372. These extreme cases of forced and extravagant presumptions are very justly dealt with by Sir W. D. Evans (see appeal to Pothier, 331) where he says : " The principle adopted in Wilkin- son v. Payne, -f T. R. 4 Cal. L97; Ruloffv. People, is X. Y. 179; Crouch v. Eveleth, 15 Mass. •'!"">; Hancock Mut. I. 24 LAW OF EVIDENCE IN CRIMINAL CASES. Ins. Co. v. Moore, 34 Mich. 41; Bailey v. Bailey, 25 Mich. 185;; Scheel v. Eidman, 77 111. 304; Jackson v. Etz, 5 Cow. 319. d. Importance of this Presumption in Criminal Law. — The presumption of life or death is one of great importance in criminal law. For an elaborate discussion of the principles un- derlying this presumption, see the opinion of Johnson, Ch. J., in Buloffv. People, IS N. Y. 179. Mr. Wills, in his treatise on Circumstantial Evidence, says: "Death may be inferred from such strong and unequivocal cir- cumstances that render it morally certain and leave no ground for doubt." p. 208. e. Suicide. — In the case of Persons v. State, 90 Tenn. 291, the- court below charged the jury in the manner following: "All tilings being equal you are to presume that a party found dead did not die by his own hands. In all cases of sudden death the- presumption of the love of life negatives the idea of suicide. It is true, however, that this presumption of death other than by suicide, yields at once to any inference that may be logically in- ferred from the facts of the case." On appeal, the supreme court, speaking through Turney, Ch. J. r held this to constitute reversible error in that it left the jury to conclude that if the proof preponderated against the contention for suicide, or was evenly balanced, then it was, by a rule of law, required to find against the insistence of the defense; that the de- fendant was not entitled to the benefit of a reasonable doubt, but must make out to the satisfaction of the jury that the deceased took his own life. It placed the defendant in the relation of prosecutor to make clear a case of suicide before he could insist upon such facts as conducing to prove an hypothesis inconsistent with his own guilt. When the defendant has shown conduct, declarations, and cir- cumstances pointing to a suicidal intent, then it devolves upon the state to show satisfactorily and beyond a reasonable doubt it was not suicide, before the defendant can be deprived of the benefit of such reasonable doubt as his facts would create. The charge of the judge reversed the rule, and put the burden of full proof on the defendant. Persons v. State, 90 Tenn. 291. In civil cases, where one has been found dead, even with marks of violence, nothing else appearing, the presumption is that the deceased did not commit suicide, as also that he or she was not PRESUMPTIONS. 25* murdered. Accident Ins. Co. of iV. A. v. Bennett, 90 Teim. 236. Further it appears that upon a charge of homicide, even when the body has been found, and although iudications of a violent death be manifest, it shall still be fully and satisfactorily proved that the death was neither occasioned by natural causes, by accident, nor by the deceased himself. 1 Starkie, Ev. 575. While it is unquestionably true that the rules of evidence are the same in civil and criminal cases, it does not follow that be- cause the rule is the same that presumptions applicable in one are always applicable in the other. An antagonistic presumption may exist, and does in criminal cases — that is, the innocence of the defendant. So the presumption that a deceased did not com- mit suicide cannot be applied in criminal cases against the pre- sumption of innocence. Persons v. State, 90 Tenn. 291. § 19. Presumption of Sanity and Responsibility. — Should the question of insanity become one of any importance in a criminal proceeding, reliance may be had upon the postulate of law which attributes to all persons the possession of their faculties. Where the contrary is alleged it must be proved. Lilly v. Waggoner, 27 111. 395; State v. Pike, 49 N. II. 399, 6 Am. Eep. 533; Stubbs v. Houston, 33 Ala. 555; Thornton v. Appleton, 29 Me. 300; United States v. Me Glue, 1 Curt. C. C. 1; Runyan v. Price, 15 Ohio St. 1, 86 Am. Dec. 459; Cotton v. TJlmer, 45 Ala. 378, 6 Am. Kep. 703; Farrell v. Brennan, 32 Mo. 328, S2 Am. Dec. 137; State v. Smith, 53 Mo. 267; Porter v. Campbell, 2 Baxt. 81; Saxon v. Whitaker, 30 Ala. 237; Den v. Vancleve, 4 Wash. C. C. 262; Jackson v. Van Dusen, 5 Johns. 158, 4 Am. Dec. 330; Jackson v. King, 4 Cow. 207, 15 Am. Dec. 354; Egbert v. Egbert, 78 Pa. 328; Anderson v. Cranmer, 11 W. Va. 562;- Weed v. Mutual Benefit L. Ins. Co. 70 N. Y. 561; Brown v. Torrey, 24 Barb. 5S3; Walter v. People, 32\N". Y. 147; Gardner v. Gardner, 22 Wend. 526, 34 Am. Dec. 340. In Weed v. Mutual Benefit L. Ins. Co. it was said: "The sanity of every individual is presumed, and insanity cannot be presumed from the mere fact of suicide." Sanity is a normal condition, and the criminal law harbors the presumption that all men are in possession of their faculties to the extent of intending or contemplating the natural results of the act they commit. It follows, that where the prosecution has proved the commission of an offense, the legal presumption as to •v, law of evidence in criminal cases. sanity may l>e invoked as supplemental to this proof, and the state has made out a prima facie case sufficient, without rebutting testimony, to sustain the conviction. Upon this showing, where the defendant seeks to avoid the consequences of his offense through the plea of insanity, the burden of proof in a certain sense shifts, and it devolves upon him to show that the presumption of insanity is to be ignored. It should be added that the presumption of innocence clings to the accused throughout the entire trial. IIopps v. People, 31 111. 385, 83 Am. Dec. 231; Alexander v. People, 96 111. 96; Bradley v. State, 31 Ind. 192; McDougal v. State, 88 Ind. 24; State v. Jones, 61 Iowa. 349; State v. Crawford, 11 Kan. 32; People v. Garljvtt, 17 Mich. 9, 97 Am. Dec. 162; Cunningham v. State, 56 Mi-, i'-;'.'. 21 Am.Kep. 360; Wright v. People,^ Neb. 407; State v. Pike, 4'. i X. H. 399, 6 Am. Eep. 533; State v. Waterman, 1 Nev. 543; OH 'onru 11 v. People, 87 K Y. 377, 41 Am. Eep. 379; Dove v. State, 3 Heisk. 348; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. There is considerable contradiction upon this subject, and the practitioner must observe the lex for I in all cases. When the evidence of sanity on the one side, and of insanity on the other, leaves the scale in equal balance, or so nearly poised that the jury have a " reasonable doubt," there a man is to be considered sane and responsible for what he does. But if the probability of his being insane at the time is, from the' evidence in the case, very strong, and there is but a slight doubt of it, then the jury ought to say, that the evidence of his insanity was clear. The proof of insanity at the time of committing the act, ought to be as clear and satisfactory, in order to acquit him on the ground of insanity, as the proof of committing the act ought to be, in order to find a sane man guilty. State v. Spencer, 21 JS". J. L. 196. §20. Presumption where Accused is Under Seven Years of* Age. — .V child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the pre- sumption may be removed by proof that he had sufficient capacity to understand the act or neglect charged against him, and to know its wrongfulness. Whenever in any legal proceedings it becomes necessary to determine the age of a child, the child may be produced for personal inspection, to enable the magistrate, . 593; Laughlin v. Chi- cago <% N W. 12. Co. 28 Wis. 204, 9 Am. Rep. 493; Farr v. Payne, 40 Vt. 615. It must be remembered that all presump- 28 LAW OF EVIDENCE IN CRIMINAL CASES. tions of every name and nature are accorded legal indulgence merely to supply the place of facts that are supposed to exists but they arc utterly impotent, and worthless as against an estab- lished fact. Fresh v. Gilson, 41 U. S. 16 Pet. 327, 10 L. ed. 982; Lincoln v. French, 105 IT. S. 614, 26 L. ed. 1189; Best, Presump- tions, § 136; Smith v. New York Cent. R. Co. 43 Barb. 225. It is only when insanity of a chronic or permanent nature is- proved that its continuous existence is presumed. No such pre- sumption arises where fitful and exceptional attacks of insanity are proved; and where an insane person has lucid intervals, an offense by him is presumed to have been committed during a lucid interval, unless the contrary appears. An ordinary witness may testify to the sanity or insanity of a. person with whom he is intimately acquainted. If expressing the opinion that such person is of unsound mind, he should state the facts on which such opinion is founded; but when he testifies- that such person is sane, this is not necessary, since a sane person- would not manifest any such eccentricities as usually mark the conduct of person of unsound mind. Ford v. State, 71 Ala„ 385. § 22. Presumption of Guilt Arising from Silence and Con- duct Generally. — In almost every criminal case a portion of the evidence laid before the jury consists of the conduct of the party at the time of, or after being charged with, the offense. Thus it is frequently proved that upon being charged he fled, or endeav- ored to make his escape. Upon this proof it is said by Smith, B., that he had the authority of the law to say, that though a man charged with an offense should fly, that is not conclusive evidence of guilt. The jury could not forget that one of the oaths they had taken was, whether the prisoner had fled in consequence of the charge made on him; but though it should be established that he fled in consequence of the charge, yet it did not follow of necessity that he was guilty of the murder; though it was a cir- cumstance materially unfavorable and suspicious. Crawley's Case, cited in M'Nally, Crim. Ev. 577. The introduction of a false- hood into the defense is also a presumption against a prisoner. This presumption is heightened if the falsehood is to be support- ed, a- ir almost necessarily must be, by a witness conscious of it. :<'.v Case, 1789, cited in Gilbert, Ev. (Loft, ed.) 898; M'Nally, Ev. 580. ."No presumption of guilt arises from the PKESUMPTIONS. 29 silence of a prisoner when, on his examination before a magistrate, he is charged by another prisoner with having been joined in the •commission of the offense. Rex v. Appleby, 3 Starkie, 33. In weighing the effect of the presumptive evidence furnished by the conduct of a person charged with the criminal offense, great caution should be exercised. An innocent man finding him- self in a situation of difficulty, and perhaps from the circumstances of the case, of danger, is sometimes induced to adopt a line of •conduct which bears with it a presumption of guilt. 2 Hale, P. C. 290n. "Flight may be very strong evidence of guilt, or it may weigh nothing, according to the circumstances under which it takes place. The legal presumption from flight is against the prisoner, and it lies upon him to rebut it." Fox, J., Chapman's Trial (Pamphl.) p. 213; Fanning v. State, 14 Mo. 386. So the destruction, supjiression, withholding or fabrication of •evidence by a party, creates the presumption that the truth is detrimental to his interests. Winchell v. Edwards, 57 111. 41. And reasoning from analogy we have the further proposition that where a defendant adopts a theory of defense which is false, and which he must have known to be false, it is not error for the court to instruct the jury, that if the attempted explanation fails it may be regarded as indicative of his guilt. Pilger v. Com. 112 Pa. 220. And "a failure to produce proof, when in the power of the party, is recognized, even in criminal cases, as proper to be •considered by the jury." State v. Ward, 61 Vt. 153. The rule which imposes upon a suspect the obligation of pro- ducing evidence, which will contradict or explain circumstantial •evidence against him, requires him to do so only when he is pressed by circumstantial proof, having it in his power to destroy its apparent force. 1 Cowen & Hill's Notes, 310, and cases there eited; 1 Starkie, Ev. 34; 3 Starkie, Ev. 487. Before the absence of evidence can affect the accused, it must appear that there is evidence that would elucidate the matter in dispute, and that it is peculiarly within the knowledge of the accused; and then if he is pressed by the force of circumstantial evidence and does not pro- duce the evidence within his power, it may afford a strong pre- sumption against him. People v. Mc Whorter, 4 Barb. 438. Of similar import is the language of Judge Barnard, who in writing for affirmance in a criminal case decided 30 years later, 30 LAW OF EVIDENCE IN CRIMINAL CASES. employs the following language: "When a man has evidence at hand, by which he could prove a given fact material to his defense,. and docs not use it, it was for the jury to say whether it should be considered against him or not." And generally we may affirm, that where the guilt of the accused depends upon the credibility of evidence given by an accomplice, it is no error to charge the jury that they might take into consideration the omission of the prisoner to contradict the accomplice upon a statement in respect to winch, if false, contradictory evidence was apparently within the prisoner's power. People v. Dyle, 21 N. Y. 578. The silence of a defendant when he should have spoken cannot be taken to be an admission unless it is proved that he heard the statement which he should have denied. People v. Ilolfelder, 5- X. Y. ( rim. Rep. 179. And this rule is of doubtful propriety in any event obviously if the silence of a witness can be treated as- evidence against a party who cannot compel him to answer, it would not be difficult to make out a case against anyone on mere insinuations. It is the duty of the court to caution the jury against this. People v. Hall, IS Mich. 4:82, 42 Am. Rep. 177. § 23. Presumption of Natural Consequences of Act.— In Starkie on Evidence it is said, "that a rational agent must be taken to contemplate and intend the natural and immediate conse- quences of his own act, is a presumption so cogent as to constitute rather a rule of law than of mere evidence 1 ' (p. 818). "There is- a general presumption in criminal matters that a person intends whatever is the natural and probable consequences of his own actions." 1 Phil. Ev. 032. It was said by Judge Andrews, that " it is a fundamental rule of evidence of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequences of his act." People v. Convoy, 97 N. Y. 62. It follows from this presumption, that a criminal intent is pre- sumed from the commission of a criminal act. K. l r . Penal Code, § 17. i. Statutory Law of California on the Subject.— Three sections of the California Code of Civil Procedure embody the most exhaustive resume of authority, and reflect so faithfully the present attitude of the law regarding this somewhat extended topic, that a failure to reproduce the salient features they embody would argue gross neglect of the subject. As a monumental ex- PRESUMPTIONS. 3L hibit of condensation they will attract attention, and as an epi- grammatic statement of statutory law they are of ideal excellence and singularly pertinent in their relations to the law of criminal evidence throughout the Federal union. The following extract is from part 4, California Code of Civil Procedure, title "Evidence — Inferences and Presumptions,"' chap. 5. When Presumptions may be controverted — § 1001. "A pre- sumption (unless declared by law to be conclusive) may be con- troverted by other evidence, direct or indirect; but unless so con- troverted, the jury are bound to h'nd according to the presump- tions." What Presumptions are conclusive. — § 1002. " The following presumptions and no others are deemed conclusive: "1. A malicious and guilty intent, from the deliberate commis- sion of a unlawful act, for the purpose of injuring another; "2. The truth of the facts recited, from a recital in a written instrument between the parties thereto, or their successors in in- terest by a subsequent title; but this rule does not apply to the recital of a consideration; "3. Whenever a party has, by his own declaration, act or omis- sion, intentionally and deliberately led another to believe a partic- ular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be per- mitted to falsify it; "4. A tenant is not permitted to deny the title of his landlord. at the time of the commencement of the relation; "5. The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate; "0. The judgment or order of a court, when declared by this Code to be conclusive; but such judgment or order must be alleged in the pleadings, if there lie an opportunity to do so; if there be no such opportunity, the judgment or order may be used as evidence; "7. Any other presumption which by statute is expressly made conclusive." What presumptions may be controverted; extended tabulation of these instances. — §1003. "All other presumptions are satis- factory, if uncontradicted. They arc denominated disputable pre- sumptions, and may be controverted by other evidence. The following; are of that kind: .32 LAW OF EVIDENCE IN CRIMINAL CASES. "1. That a person is innocent of crime or wrong; "2. That an unlawful act was done with an unlawful intent; "3. That a person intends the ordinary consequences of his vol- untary act; "4. That a person takes ordinary care of his own concern; "5. That evidence willfully suppressed would be adverse if pro- duced; "6. That higher evidence would be adverse from inferior, being produced; "7. That money paid by one to another was due the latter; "8. That a thing delivered by one to another was due the latter. "9. That an obligation delivered up to the debtor has been paid; "10. That former rent or installments have been paid when a receipt for the latter is produced; "11. That things which a person possesses are owned by him; "12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of his own- ership; "13. That a person is possessed of any order on himself for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly; "14. That a person acting in a public office was regularly ap- pointed to it; "15. That official duty has been regularly performed; "16. That a court or judge, acting as such, whether in this state or in any other state or country, was acting in the lawful exercise of his lawful jurisdiction; "17. That a judicial record, when not conclusive, does still cor- rectly determine or set forth the rights of the parties; "18. That all matters within an issue are laid before the jury and passed upon by them, and, in like manner, that all matters within a submission to arbitration were laid before the arbitrator and passed upon by him; "19. That private transactions have been fair and regular; "20. That the ordinary course of business has been followed; "21. That a promissory note or bill of exchange was given or endorsed for a sufficient consideration; "22. That an endorsement of a negotiable promissory note or bill of exchange was made at the time and place of making the note or bill; PKESUMPTIONS. , 33 "23. That a writing is truly dated; "24. That a letter duly directed and mailed was received in the regular course of the mail; "25. Identity of person from identity of name; "26. That a person not heard from in seven years is dead; "27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact; "28. That things have happened according to the ordinary course of nature and the ordinary habits of life; "29. That persons acting as copartners have entered into a con- tract of copartnership; "30. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; "31. That a child born in lawful wedlock, there being no di- vorce from bed and board, is legitimate; "32. That a thing once proved to exist continues as long as is usual with things of that nature; "33. That the law has been obeyed; "34. That a document or writing more than thirty years old is genuine, when the same has been since generally acted upon as genuine by persons having an interest in the question, and its custody has been satisfactorily explained; "35. That a printed and published book purporting to be printed or published by the public authority was so printed or published; "36. That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the state or country where the book is published, contains correct reports of such cases; "37. That a trustee or other person, whose duty it was to con- vey real property to a particular person, has actually conveyed to him, when such presumption is necessary to perfect the title of such person or his successor in interest; "38. The uninterrupted use by the public of land for a burial ground for five years, with the consent of the owner, and without a reservation of his right, is presumptive evidence of his intention to dedicate it to the public for that purpose; "39. That there was a good and sufficient consideration for a written contract; "40. "When two persons perish in the same calamity, such as a 3 34 LAW OF EVIDENCE IN CRIMINAL CASES. wreck, a battle or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities re- sulting from the strength, age, sex, according to the following rules: "41. If both of those who have perished were under the age of fifteen years, the older is presumed to have survived; "42. If both were above the age of sixty, the younger is pre- sumed to have survived; "43. If one be under fifteen, and the other above sixty, the former is presumed to have survived; "44. If both be over fifteen and under sixty, and sexes be dif- ferent, the male is presumed to have survived; if the sexes be the same, then the older; "45. If one be under fifteen or over sixty, and the other be- tween those ages, the latter is presumed to have survived." For an elaborate consideration of this topic, see 1 Kice, Civil- Evidence, chap. 3. CHAPTER IT. PRIMA FACIE EVIDENCE. § 25. Term Defined. 2G. Case Made by. 27. Legislature may Declare the Effect of. § 25. Term Defined. — Prima facie evidence is such evidence as in judgment of the law is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose (KeMy v. Jack- son, 31 D. S. 6 Pet. 632, 8 L. ed. 526; LilienihaVs Tobacco v. United States, 97 TJ. S. 26S, 24 L. ed. 905); evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced {Emmons v. Westfield Bank, 97 Mass. 243); that which suffices for the proof of a particular fact until contradicted and overcome by other evidence. Cal. Code, Civ. Proc. § 1833; Swamp Land Dist. v. Gwynn, 70 Cal. 570. See Anderson, Law Diet, title Prima Facie Evidence. Prima facie evidence is that which, not being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favor that it must prevail if it be accredited by the jury, unless it be rebutted, or the contrary proved. Conclu- sive evidence, on the other hand, is that which excludes, or at least tends to exclude, the possibility of the truth of any other hypothesis than the one attempted to be established. 1 Starkie, Ev. 479. As defined by the United States Supreme Court, prima facie evidence of a fact is such evidence as in judgment of law is sufficient to establish the fact, and remain sufficient for that pur- pose if not rebutted. The jury are bound to consider it in that light, and the court will set aside their verdict and grant a new trial if without any rebutting evidence they disregard it. In a legal sense, such prima facie evidence, in the absence of all con- trolling evidence, of discrediting circumstances, becomes con- clusive; that is, it should operate in the minds of the jury as decisive to found their verdict as to the fact. Crane v. Morris^ 35 36 LAW OF EVIDENCE IN CRIMINAL CASES. 31 TJ. S. 6 Pet. 598, 8 L. cd. 514; United States v. Wiggins, 39 U. S. 14 Pet. 334, 10 L. ed. 481. Mr. Justice Story's definition is scarcely less logical and satis- factory. He says : " It is such that in judgment of law is suffi- cient to establish the fact; and if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded and supported. No judge would hesitate to set aside their verdict, and grant a new trial, if, under such circumstances, without any rebutting evidence, they disregarded it. It would be error on their part, which would require the remedial interposi- tion of the court. In a legal sense, then, such prima facie evi- dence, in the absence of all controlling evidence or discrediting circumstances, becomes conclusive of the fact; that is, it should operate upon the minds of the jury as decisive to found their ver- dict as to the fact. Such was understood to be the clear prin- ciples of law on the subject." Kelly v. Jackson, 31 U. S. 6 Pet. 622, 8 L. ed. 523. A consideration for this topic becomes necessary when the principles that characterize the affirmative of the issue are recalled. A party litigant, upon whom is cast the onus probandi, in order to comply with certain well recognized principles of law, intro- duces in support of the averment of his declaration certain evi- dence. Thus, in an action to determine the liability on a promissory note, the plaintiff usually declares and incorporates in affirmation of his claim statements to the effect that the defend- ant made, executed and delivered the note in suit; that the complainant became, in the due course of business, the holder and owner thereof for value, before maturity; that the same is due and unpaid; and that payment has been demanded and refused. This constitutes a prima facie case, on producing the note, which is usually then offered in evidence, and the plaintiff rests. The burden of proof is then shifted. This mercurial nature of the burden of proof, and many illus- trations of the peculiar province prima facie evidence sustains in the actual trial of a case are afforded by a close examination of that topic. It would involve a technical inaccuracy, perhaps, but would thoroughly accord with the actual facts, as seen and developed in our trial court, were I to postulate for prima facie PRIMA FACIE EVIDENCE. 37 evidence this characteristic, viz: " Whenever the burden of proof devolves upon any party other than the one originally holding the affirmative, then and in that event, prima facie evidence has been established, and if no other evidence were offered, each party would be entitled to judgment." Mr. Best is singularly infelicitous in his attempt at a definition. He says : " Strong presumptions of fact shift the burden of proof, even though the evidence to rebut them involve the proof of a negative. The evidentiary fact giving rise to such a pre- sumption is said to be 'prima facie evidence ' or the principal fact of which it is evidentiary. Thus, possession is prima facie evi- dence of property; and the recent possession of stolen goods is sufficient to call on the accused to show how he came by them, and in the event of his not doing so satisfactorily, to justify the conclusion that he is the thief who stole them." Best, Ev. § 321, citing Gilbert, Ev. (4th ed.) 157. § 26. Case Made by. — The party upon whom the onus jprohandi rests, can make out a prima facie case, and close the evidence. The defense is not required to offer any evidence until the prose- cution has made out a case sufficient to support a verdict; and when the prosecution has closed, the defendant is entitled to an acquittal if the case of the prosecution is not made out beyond a reasonable doubt. If the prisoner thinks it necessary to offer proof independent of what has appeared from the prosecution, he does not necessarily assume the burden of proof; it is simply offering rebutting testimony, which may be sufficient or not. The defendant all the time has the presumption of innocence, which is a substantial rule, operating during the whole trial, and continuing to operate until the case is finally determined. But because the defendant considers it necessary to rebut, is no reason why the law should raise a presumption of guilt, and thereby destroy the presumption of innocence, by evidence amounting to proof of innocence. Malone, Criminal Briefs, p. 250; Wharton v. State, 73 Ala. 3G6; Guffu v. State, 8 Tex. App. 187; State v. Wingo, m Mo. 181, 27 Am. Kep. 320; Jones v. State, 13 Tex. App. 1; Williams v. Peojple, 101 111. 382; State Y.Payne, 86 X. C. 609. — It is the province of the judge to determine whether there is testimony sufficient to make it appear, prima facie, that a crime has been committed. The evidence on which the judge act- may 38 LAW OF EVIDENCE IN CRIMINAL CASES. not necessarily establish the corpus delicti. It may be, and often is, conflicting and contradictory. In such case, the credibility of the witnesses, and the sufficiency of the entire evidence, are for the ultimate decision of the jury.^"" § 27. Legislature may Declare the Effect of. — While the legislature may establish the effect of certain evidence and shift the burden of proof from one party to another, and declare what may be presumptive evidence of certain facts, it has not the power to make the lawful act of one person presumptive evidence of the unlawful act of another without any proof of his knowledge, com- plicity or consent. See New York Const, art. 1, § 6. It has been repeatedly decided in New York, that the legisla- ture has the right to declare what shall be presumptive evidence of any fact. Hand v. Ballou, 12 N. Y. 543; People v. Mitchell, 45 Barb. 212; H'tckox v. Tollman, 38 Barb. 608; Donahue v. O'Connor, 13 Jones & S. 297; Howard v. Moot, 64 K Y. 262, 5 Thomp. & C. 93. Legislation of the character in question, as to rules of evidence is not without precedent, nor is its validity a question unadjudi- cated. In Com. v. Williams, 6 Gray, 1, Williams was indicted and convicted for being a common seller of spirituous and intoxi- cating liquors. The statute concerning the manufacture and sale of spirituous and intoxicating liquors, under which the indictment was found, provided, among other things, that "delivery in or from any store, shop, warehouse, steamboat or other vessel, or any vehicle of any kind, or any building or place other than a dwelling house, shall be deemed prima facie evidence of a sale." The trial judge instructed the jury that the delivery by the defendant of such liquors in his place of business, the same not being a dwelling house, without evidence of payment therefor, was prima facie evidence of sale by the defendant, unless explained or controlled by other evidence. It was contended, upon appeal by the supreme court, that the provision was uncon- stitutional, because it was unreasonable, contrary to the rules and principles of the common law, an encroachment upon the judicial department, and subversive to the right of trial by jury. The court held the statute to be constitutional, and the view taken of it is that it only prescribes, to a certain extent and under particular circumstances, what legal effect shall be given to a par- ticular species of evidence, if it stands entirely alone and is left PRIMA FACIE EVIDENCE. 39 wholly unexplained, that this evidence neither conclusively deter- mines the guilt or innocence of the party who is accused, nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried; that the purpose and effect of the clause of the statute are to simply give a certain degree of artificial force to a designated fact until such explanations are afforded as to show that it is at least doubtful whether this pro- posed statutory effect ought to be attributed to it, but the fact itself is still to be shown and established by proof sufficient to -convince and satisfy the minds of the jurors, and if ^this proof is furnished, and the delivery of any quantity of spirituous liquor, in a place other than a dwelling house, is fully shown, this will not be conclusive against the party charged with having made the sale of it; that making out a prima facie case does not change the burden of proof but is only the result of that amount of evidence which is sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if the fact so established be not encountered and controlled by other evidence tending to modify its effect, or to so explain it as to render the statutory inference from it too uncertain and improbable to be relied upon; the burden remains continuously on the government to establish the accusation charged in the indictment or information. Com. v. Kimball, 24 Pick. 373, 35 Am. Dec. 326; Com. v. MeKie, 1 Gray, 61, 61 Am. Dec. 410. In Com. v. Wallace, 7 Gray, 222, where the indictment was for an unlawful sale of spirituous and intoxicating liquors, it was again contended that the provision in question was unconstitu- tional, and applied only where a naked delivery was proved with- out any accompanying circumstances; and the trial judge was requested, inter alia, to so charge; but he refused, and instructed the jury that, if there was proved beyond a reasonable doubt a delivery of intoxicating liquor by the defendant from any build- ing or place other than a private dwelling house or its dependen- cies, it would be prima facie evidence of a sale, and would war- rant a conviction, but that the circumstances under which the delivery was made might rebut the presumption, or the presump- tion might be rebutted by proof. The supreme court overruled the exceptions taken to the instructions given. Com. v. Howe, 14 Gray, 47, maintains the same doctrine, and that the burden is on the government to prove the sale beyond a reasonable doubt* See also Holmes v. Htmt, 122 Mass. 505, 23 Am. Rep. 381. 40 LAW OF EVIDENCE IN CRIMINAL CASES. A statute of Maine provided that whenever an unlawful sale of intoxicating liquor is alleged, and delivery proved, it shall not be necessary to prove a payment, but such delivery shall be "suffi- cient evidence of sale." This provision was held to be constitu- tional. "Delivery, in the absence of all other proof," says the court, "is made sufficient evidence of sale — sufficient when no other proof is offered. It is open to disproof from every source. It may be explained by attendant circumstances. The party delivering is not estopped by the fact of delivery. The fact of delivery is deemed sufficient, if not explained by the circumstances accompanying the delivery, or if the inference is not negatived by disproof." State v. Hurley, 54 Me. 562. CHAPTER V. BEST AND SECONDARY EVIDENCE. § 28. CJiaraci 'eristics of Best and Secondary Evidence. 29. Foundation for Secondary Evidence. 30. Relaxation of the Rule in Certain Cases. 31. Notice to Produce. § 28. Characteristics of Best and Secondary Evidence. — One dominant law of evidence that is without relaxation and at all times in the ascendency, is that demanding the best attainable evidence of which the case is susceptible. Bench, bar and com- mentator are alike agreed upon this postulate, and it is enforced with precision, both in this country and in England. The United States Supreme Court, through Mr. Justice Nelson, delineates the rule with admirable lucidity. In a case that is still quoted with approbation, and as a pertinent exposition of the subject under review, an excerpt from the opinion is inserted: "One of the general rules of evidence, of universal application, is that the best evidence of disputed facts must be produced of which the nature of the case will admit. This rule, speaking technically, applies only to the distinction between primary and secondary evidence; but the reason assigned for the application of the rule in the technical sense is equally applicable, and is fre- quently applied, to the distinction between the higher and inferior degree of proof, speaking in a more general and enlarged sense of the terms, when tendered as evidence of a fact. The meaning of the rule is, not that courts require the strongest possible assur- ance of the matters in question, but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party's possession or power; because the absence of the primary evidence raises a presumption, that, if produced, would give a complexion to the case at least unfavor- able, if not directly adverse, to the interest of the party." Clif- ton v. United States, 45 U. S. 4 How. 242, 11 L. ed. 957. On prior and on subsequent occasions the same court lias an- nounced a similar principle, and we may safely affirm that it is a 41 42 LAW OF EVIDENCE IN CRIMINAL CASES. cardinal feature of evidentiary law as administered in this country. No evidence shall be received, which presupposes better evidence in the party's possession, and this rule may be regarded as estab- lished beyond question. Tayloe v. Biggs, 26 U. S. 1 Pet. 591, 7 L. ed. 275; Cooke v. Woodrow, 9 U. S. 5 Cranch, 13, 3 L. ed. 22; Fresh v. Oilson, 41 U. S. 16 Pet. 327, 10 L. ed. 982; DeLcme v. Moore, 55 U. S. 14 How. 253, 14 L. ed. 409; MePhaul v. Laps- ley, 87 TJ. S. 20 Wall. 264, 22 L. ed. 344. The rule that the best evidence must be produced which the nature of the case admits, means, not that the courts require the strongest possible assurance, but that no evidence shall be admit- ted which presupposes greater evidence in the party's favor. United States v. Beyburn, 3] TJ. S. 6 Pet. 352, 8 L. ed. 424. The reason of the rule that secondary or inferior evidence shall not be substituted for any evidence of a higher nature which the case admits of, is that the attempt to substitute the inferior for the higher implies that the higher would give a different aspect to the case of the party introducing the lesser. United States v. Wood, 39 TJ. S. 14 Pet. 430, 10 L. ed. 527; Tayloe v. Biggs, 26 TJ. S. 1 Pet. 591, 7 L. ed. 275; Clifton v. United States, 45 TJ. S. 4 How. 242, 11 L. ed. 957; DeLane v. Moore, 55 U. S. 14 How. 253, 14 L. ed. 409. The reasons calling for the production of the best evidence of which the case is susceptible in civil cases, are of equal weight and cogency in criminal prosecutions. Chief Justice Parsons in a criminal case decided in 1808, sententiously an- nounces the rule in the following language: "It is an indispensable rule of law, that evidence of an inferior nature, which supposes evidence of a higher in existence, and which may be had, shall not be admitted." Com. v. Kinison, 4 Mass. 646. § 29. Foundation for Secondary Evidence. — In accounting for the absence of a writing material to the case, so as to let in secondary evidence of its contents, no universal rule can be de- clared which will be applicable under all circumstances. The testimony is addressed to the presiding judge, and he pronounces on its sufficiency. He must be reasonably convinced that it has been destroyed, is lost, or is beyond the reach of the court's pro- cess. A material inquiry in such cases is, whether or not there was a probable motive for withholding this highest and best evi- dence. Whenever the court is able to answer this inquiry in the negative, less evidence will satisfy its conscience, than if suspicious BEST AND SECONDARY EVIDENCE. 43 •circumstances attended the transaction. As a rale there must be a careful search at the place at which it was last known to be, if its place of custody can be traced or remembered. If not, then such search must be made at any and every place where it would likely be found. Jernigan v. State, 81 Ala. 58. A foundation for secondary evidence is not laid by the state, by showing that the original document is not in the possession of the prosecuting witness, as he is not the party offering the evi- dence. State v. Penny, TO Iowa, 190. Proof must be given of the exercise of reasonable diligence in the effort to procure the original. The circumstances must be indeed exceptional which would warrant the assertion that the •efforts of the plaintiff in this case to produce the original were reasonably diligent. Beaver v. Rice, 25 N. C. 280; Dickinson v. Breeden, 25 111. 1S6; Ralph v. Brown, 3 AVatts. & S. 395; Shep- ardv. Giddings, 22 Conn. 2S2; Wood v. Cullen, 13 Minn. 391; Johnson v. Arnwine, 42 X. J. L. 451, 30 Am. Rep. 527; Floyd v. Mintsey, 5 Rich. L. 3G1; Turner v. Yates, 57 U. S. 16 How. 14, 14 L. ed. 824; Simpson v. Ball, 70 U. S. 3 Wall. 460; 18 L. ed. 265; Blackburn v. Crawford, 70 U. S. 3 Wall. 175, IS L. ed. 186; Jackson v. Frier, 16 Johns. 193; Taunton Bank v. Richard- son, 5 Pick. 436; Empire Transp. Co. v. Steele, 70 Pa. 1S8. Where the contents of an instrument alleged to have been de- stroyed are sought to be proved by oral evidence it is for the court to determine whether the evidence establishes the destruc- tion, and whether, if established, the destruction was not intended to injure the opposite party or to create an excuse for its non- production. Mason v. Libbey, 90 N. Y. 683. It is a sufficient excuse for the non-production of a document to trace it to the possession of one interested in retaining it, and who, were he subpoenaed to produce it, could refuse to do so, on the ground that it would tend to criminate him. Abbott, Trial Brief, § 452, citing United States v. Reyburn, 31 U. S. 6 Pet. 352, 366, S L. ed. 424, 429; State v. Kimbrougli, 13 N. C. 431. In civil cases it has been repeatedly held that where the paper or document wanted in evidence has been traced to the possession of a certain party, that party must be produced to prove its loss, and if beyond the jurisdiction of the court his testimony must be taken by deposition or a reasonable excuse given for the failure. It must also appear that the party offering secondary evidence 44 LAW OF EVIDENCE IN CRIMINAL CASES. show that he has exercised good faith and reasonable diligence in- seeking for the primary evidence, and that he has explored with reasonable fidelity all sources of information the case would nat- urally suggest. Simpson v. Dall, 70 U. S. 3 Wall. 460, 475, 18 L. ed. 265, 267; Deaver v. Bice, 24 K C. 280; Parkins v. Cob- bitt, 1 Car. & P. 282; Dickinson v. Breeden, 25 111. 186; Turner v. Yates, 57 U. S. 16 How. 14, 14 L. ed. 824; Bunch v. Hurst, 3 Desaus. Eq. 273, 5 Am. Dec. 551. § 30. Relaxation of the Rule in Certain Cases. — Before sec- ondary evidence is admissible as to the contents of a lost instru- ment, it must appear that due search was made for the same in the place where it was last seen or where it is most likely to be found, and the rigor with which this search is prosecuted must be proportioned to the value of the instrument sought. Slight proof of loss is sufficient where the paper is of a transient charac- ter such as a monthly receipt for a gas or water bill. On the other hand the last will and testament, or valuable muniments of title, call for protracted effort in the way of search; as to what constitutes sufficient search in each instance must be regarded as a question for the trial court, to be determined by the facts dis- closed. The rule that when the non-production of a written instrument is satisfactorily accounted for, secondary evidence of its existence and contents may be given, is applicable to criminal as well as civil suits. United States v. Beyburn, 31 U. S. 6 Pet. 352, 365 y S L. ed. 424, 429. As we have seen, there is no universal rule as to the necessary foundation for the introduction of secondary evi- dence; but the presiding judge must be reasonably satisfied that the document is lost, destroyed or beyond the jurisdiction of the court. When no probable motive appears for withholding the document, less evidence is required than under suspicious circum- stances. Jernigan v. State, 81 Ala. 58; Ilaun v. State, 13 Tex. App. 8^0, 44 Am. Eep. 706. The rule excluding secondary evidence does not apply to matter not relevant to the merits, but drawn out on cross-examination to test the temper and credibility of the witness, except that if the contents of a document are sought to be used to discredit or con- tradict the witness, as containing his own statements contrary to his testimony, the original, not a copy, must be produced. Abbott, Trial Brief, § 436, citing Klein v. Bussell, 86 U. S. 19 BEST AND SECONDARY EVIDENCE. 45 Wall. 439, 464, 22 L. ed. 110, 1 24; Kalk v. Fielding, 50 Wis. 339; JSfewcomb v. Griswold, 24 N. Y. 298; Pratt v. Norton, 5 Thomp. & C. 8; JSTash v. .SWirf, 116 Mass. 237. § 31. Notice to Produce. — Due notice, according to the rules ■of evidence, to produce papers required at trial must be given. It may occasionally be desirable to obtain from tlie court a preliminary order permitting the inspection, before trial, of something in the opposite party's possession. For example, on an indictment being found for sending a threatening letter, the court, on the defendant's motion, ordered the letter to be deposited with an officer of the court for the inspection of the witnesses for the defense. In case of a homicide by alleged poisoning, where the contents of the deceased person's stomach were in the possession of the police, having been examined by experts on the part of the execution, the court, on the defendant's application, made an order permitting an expert nominated by the latter to examine them in the presence of the other experts. 1 Bishop, Crim. Proc. §§ 959-959^e v. Brooks, 87 Ind. 600, 44 Am. Rep. 778; Hancock v. TT^7«m, 39 Iowa, 47; Mann v. Sioux City & P. R. Co. 46 Iowa, 637; Johnson v. Filkington, 39 Wis. 62; Blakely v. Frazier, 20 S. C. 144; Baker v. Lyman, 53 Ga. 339; &?/«2a, 7?. cfe D. R. Co. v. Zi^A, 53 Ga. 178; Ashley v. Martin, 50 Ala. 537; Shealy v. Edwards, 75 Ala. 411; Fergu- son v. Thacher, 79 Mo. 511. Restating the above proposition we may say that facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will against any particular person, or showing the existence of any state of body or bodily feeling are relevant, when the existence of auy such state of mind or body or bodily feeling, is a fact in issue or rele- vant to the issue. Any other facts are relevant from which the facts in issue are presumed, or are logically inferable, or which, having regard to the relation of cause and effect, or the ordinary motives of human conduct, or the usual sequence of events, would, considered by themselves, create a probability with respect to the facts in issue. Set- noti . page 74. § 41. The Attributes of Relevancy. — To invest evidence with the attribute of relevancy, it must have a manifest tendency To prove or disprove the allegations of the indictment. Adhesion to this rule will exclude proof of collateral facts incapable of gen- erating a legitimate presumption, that they will connect them- selves with the question in dispute. A fact sought to be estab- KELEVANCY. 71 lished may be very remote in point of time and place from the issues involved, but if the trial court can still detect in the evi- dence offered a tendency to explain the issue, sound policy would insist upon its admissibility. Proffered evidence is always rele- vant which seeks to show a motive for the crime charged. Green v. State, 12 Tex. App. 51; White v. State, 72 Ala. 195; Russell v. State, 11 Tex. App. 288; State v. Dearborn, 59 X. II. 31S. Ordinarily the improper admission of evidence in favor of one party is no excuse for the subsecpient admission of illegal testi- mony on the other side. But the supreme judicial court of Maine has held that if prejudicial evidence is admitted without objection on one side, the other party is entitled to introduce evi- dence however remote it may be from the main issue to contra- dict it. This view should meet with unanimous approval. State v. Witham, 72 Me. 531. "It is sufficient, in order to make a question relevant, that the answer which it seeks to elicit will tend in some sensible degree to prove or disprove the fact in issue. It is not necessary that the answer, if believed, should in itself afford complete proof. It may be corroborative testimony merely, or a single link in a chain of circumstances, or a single fact in a collection of facts, neither of which is sufficient in itself, but all of which, when taken col- lectively, may be of sufficient probative force to carry conviction to the minds of the jurors. If, therefore, the answer to a ques- tion may tend to prove, or may form part of the proof of the matters alleged, though not wholly sufficient to prove them, the question may be asked." Seller v. Jenkins, 97 Ind. 130. So it is not error, in a criminal case, for the trial court to receive relevant evidence, notwithstanding the witness has vio- lated an order of the court to remain outside of the court room while other witnesses were testifying. He may be punished for disobeying a rule of the court, but the state or the defendant should not be deprived of his evidence. State v. Folk, 40 Kan. 498. Any facts tending to prove the main fact, and contemporaneous and connected with it, are admissible as a general rule. All relevant and material evidence must be received; and evidence is not to be rejected because it fails to be conclusive; it is sufficient if it fairly tends to prove a point sought to be established. Tes- timony in reference to similar transactions is admissible to show 72 LAW OF EVIDENCE IN CRIMINAL CASES. the criminal intent of a party, where other transactions of the same general character and connected therewith are investigated. Am. & Eng. Enc. Law, title Criminal Procedure, snbdiv. 15. See also Reg. v. McCarthy, 2 Car. & K. 379, 1 Den. C. C. 453; Roscoe, Crim. Ev. 876; Beg. v. Weeks, Leigh & C. 18; Com. v.J! nkms, 76 Mass. 485; Osborne v. People, 2 Park. Crim. Rep. 583; Wood v. United States, 14 II. S. 16 Pet. 360, 10 L. ed. 994; Bex v. Ellis, 6 Barn. & C. 145; Beg. v. Foster, 2 Eng. L. & Eq. 548; Beg. v. Cobden, 3 Fost. & F. 833; Bex v. Dunn, 1 Moody, C. C. 146; Bex v. Davis, 6 Car. & P. 171; People v. Bando, 3- Park. Crim. Pep. 336; People v. Nichol, 1 Fost. & F. 51; People v. Jlopson, 1 Denio, 574. The declarations of a party to a civil or criminal proceeding, in respect to matters within his own knowledge, or of which he may be presumed to have knowledge, and relevant to the issue, are always competent against him. Coleman v. People, 58 1ST. Y. 555. Evidence is not to be rejected because it fails to be conclusive; it is sufficient if it fairly tends to prove a point sought to be estab- lished. Com. v. Sawtelle, 141 Mass. 140. As tending to prove a point sought to be established, the entries of a person since deceased, made at or near the time of a transac- tion, when he may be presumed to know the facts stated therein, may be read as evidence of the facts stated if it appears that, (1) the entry was made in the ordinary course of business; or, (2) that it was made in a professional capacity, and in the ordi- narv course of professional conduct; or, (3 1 that it was made in the performance of a duty imposed by lawful authority. And further (4) any act, declaration, or omission of a party against his inter- est is relevant, and hence admissible. § 42. Offer of Proof. — Where counsel offer to prove a certain fact and the relevancy of the evidence is not apparent, the court may require him to disclose the substance and on its satisfactorily appearing that it will connect itself legitimately with the question in the case it should be admitted. If it is rejected an exception should be duly entered as in civil eases, and on appeal the materi- ality of the rejected evidence must be shown. Morgan v. Browne,^ Pa. 130; Jackson v. Hardin, S3 Mo. 175; United States v. Gibert, '1 Sumn. 20. "A party having a witness on the stand, may be called upon RELEVANCY. 73 by his adversary to state what he proposes to prove, and in that case he must state it. But he need make no such state- ment unless called upon to do so. It is enough for him to pro- ceed and put his questions to the witness unless desired to state what he expects to prove. It will not be presumed that an improper question will be asked him." But, offers to prove con- versations between third persons, tending to implicate the defend- ant, but not had in his presence, are not admissible as evidence against him, even if they did not relate to the particular offense with which he is charged, they would be inadmissible because irrelevant. Tolbert v. State, 87 Ala. 27. AVhen the admissibility of testimony depends upon the determi- nation of a prior fact by the court, such prior fact need not be established by a weight of evidence amounting to a demonstra- tion. It is only necessary that there should be so much evidence as to make it proper to submit the whole testimony to the jury. Com. v. Robinson, 140 Mass. 571. Precedent acts which render the commission of the crime charged more easy, more safe, more certain, more effective to produce the ultimate result which formed the general motive and inducement, if done with the intention and purpose, have such a connection with the crime charged as to be admissible, though they are also of themselves criminal. Com. v. Scott, 123 Mas-;, 222, 25 Am. Hep. 81; Com. v. Choate, 105 Mass. 451; Swan v. Com. 104 Pa. 21S; Goersen v. Com. 99 Pa, 3SS: Shaffner v. Com. 72 Pa. 60, 13 Am. Eep. 649; Mayer v. People, SO jST. Y. 364. See also Jordan v. Osgood, 109 Mass. 457. For cases where such connection was not shown, but where the principle was rec- ognized, see Com. v. Jackson, 132 Mass. 16; State v. Lapage, 57 K H. 245, 24 Am. Eep. 69; People v. Sharp, (per Peckham, J.) Y 107 K Y. 427. "Where the relevancy of evidence is brought in question, it is the duty of the court to indulge a preliminary examination as to its competency, and this may be conducted in the presence of the jury; but during it they stand simply in the attitude of spectators, with the testimony given them have no concern, it being merely for the information of the court, and until by its ruling some por- tion of it is presented to the jury as competent evidence in the case, there is nothing to which the defendant may except as con- stituting legal error. It is within the discretion of the court to -74 LAW OF EVIDENCE IN CRIMINAL CASES. -determine how far the examination shall extend. The exercise of that discretion is not reviewable unless it appears that snch discretion was abused, and the action of the court arbitrary and unreasonable. People v. Smith, 104 N. T. 491. Where evidence is received for no specific purpose it is not •error to receive it if it is admissible for any purpose. Starkei/s App. 61 Conn. 199. All questions of law, including the relevancy of evidence, the determination of such relevancy, the construction of statutes and writings, and of all rules of evidence, are to be decided by the •court, and all discussions of law addressed to it. Whenever a fact is assumed to be known to the court, the court is to declare its knowledge to the jury, who are bound to accept it. § 43. Indecency no Ground for Excluding Testimony. — Mr. Taylor (§ 867) adopts from Professor Greenleaf the state- ment that "the law excludes on public grounds * ■evidence which is indecent or offensive to public morals, or in- jurious of the feelings of third persons." The authorities given for this are actions on wagers which the court refused to try, or in which they arrested judgment, because the wagers were in themselves impertinent and offensive, as, for instance, a wager as to the sex of the Chevalier D'Eon Da Costa v. Jones, Cowp. 729; Stephen's Digest, art. 2, note 11. In the recent case of State v. Markins, 95 Ind. 464, 48 Am. Rep. 733, 735, it was held that the chief element of the offense charged consists in illicit intercourse between the sexes evidence of previous lascivious conduct of the parties is admissible. Ab- bott's Criminal Brief, citing People v. Jenesse, 5 Mich. 305; Law- son v. Statt , 20 Ala. 65, 56 Am. Dec. 182; Thayer v. Thayer, 101 Mass. Ill ; State v. Bridgman, 49 Yt. 202, 24 Am. Rep. 124; State v. Pippin, 88 X. C. 646; State v. Kemp, 87 K C. 538. The position taken by Professor Greenleaf on this subject is utterly indefensible, and this condemnation is judicially expressed by Sir James Stephen when he says: "I know of no case in which a fact in issue or relevant to an issue, which the court is bound to try, can be excluded merely because it would pain some •one who is a stranger to the action." Stephen, Dig. (Chase's ed.) art. 2, note 2. Rice, Civil Evidence, § 257. Judge Thompson very aptly observes: '"The fact that evidence is indecent is no objection to its being received, where it is nee- RELEVANCY. 75 ■essary to justice. But it is proper for the trial court to refuse to permit indecent questions to be put to children on the witness stand, nor will the court commit error in refusing to compel a female witness testifying upon an indelicate subject, to couch her answers in indecent language, although, if so expressed, her an- swer would be more direct though not necessarily more intelli- gible." Thomp. Trials, § 356. Citing, inter alia, People v. White, 53 Mich. 537; State v. Laxton, 7S X. C. 564. Evidence, if relevant, is not excluded on account of its indeli- cacy or indecency. Although courts may not refuse to consider details, however offensive and disgusting, if they become neces- sary in the course of investigation, yet they should always require the witnesses to be examined in a spirit of due delicacy, avoiding vulgar and obscene language. So a wife, if competent, may prove excessive intercourse; it is public policy which prevents a husband or wife from proving non-access. Stewart. Mar. & Div. § 34S, citing Melvin v. Melvin, 58 X. II. 569; DaCosta v. Jones, Cowp. 729; Inglis v. Inglis, 15 Week. Rep. 1093; Abernathy v. Aber- nathy, 8 Fla. 243; Corson v. Corson, 44 X. II. 5ST; Chamberlain v. People, 23 N. Y. 85, 80 Am. Dee. 255. It may be stated in general that the law excludes, on public grounds, evidence which is indecent or offensive to public morals or injurious to the feelings of third persons, the parties them- selves having no interest in the matter, except what they have impertinently created. Yet the mere indecency of disclosure does not exclude, where the evidence is necessary for the purpose of civil or criminal justice, as on an indictment for rape, or on a question of sex of one claiming an estate tail, as heir, male or •fe- male, or upon the legitimacy of one claiming as lawful heir; or on a petition for dissolution of marriage or judicial separation, or for damages on the ground of adultery. In these and similar cases the evidence is necessary either for the punishment of crime or for the vindication of rights existing before or independent of the fact sought to be disclosed. Hagernan, Privileged Communi- cations, § 185, citing 20 & 21 Vict. chap. 85, §§ 16, 27, 33. Note. — A well considered article in 6 Central Law Journal, embodies a dis- cussion of this subject, aud while it lacks the weight and influence accorded to a judicial determination it well merits high consideration as a logical pr< tion of a vexed and subtle distinction, that many courts attempt to sustain in criminal proceedings. The article is based upon and was inspired by the case of State v. Cowell, decided by Supreme Court of Nevada in 1878, and report! d 76 LAW OF EVIDENCE IN CKIMINAL CASES. in 12 Nev. 337. The writer characterizes this case as the last of a series, "in ■which judges seem to have striven for the practical overthrow of the well set- tled rule of criminal law that the evidence must he confined to the issue." "In this case, as well as in all others of the class to which it belongs, the ex- istence and binding force of that rule is recognized; but the judges demonstrate to their own satisfaction that it is not infringed by the introduction of evidence showing that a prisoner has committed or agreed to commit an offense uncon- nected with the one for which he is on trial. They shelter themselves behind the rule which forbids the exclusion of evidence, in other respects admissible, merely because it shows, or tends to show, that the prisoner's character is bad, and allows the prosecution, in certain cases, to show that the accused has com- mitted, or agreed to commit a crime other than the one for which he is on trial. They tell us that one of the cases in which this may be allowed, is where such evidence 'tends to throw light on what were the prisoner's motives and inten- tiou in doing the act complained of,' and conclude that the evidence decided to be admissible has this tendency. " Such is the position of the supreme court of Nevada in the case in question. Whether it be correct or incorrect w T e shall proceed to consider. " While the writer does not believe that courts should so closely confine the evidence to the particular transaction charged that the ends of justice shall be defeated and the guilty shielded, he is far from believing that they should go to the»other extreme. " The 'safe middle course' should be followed. On the one hand, evidence having a legitimate tendency to show a guilty purpose should not be excluded, and when other crimes commited by the prisoner are so closely connected with the one for which he is on trial that they can justly be said to throw light on his motives in doing the act complained of, evidence of their commission should be allowed to go to the jury. On the other hand, the dictates of justice and hu- manity require that the prosecution should not be allowed, by showing that the prisoner has committed a wholly disconnected offense, to induce the jury to convict him of a crime which he did not commit, because he deserves punish- ment for another which he did commit. " The rule is too well settled to admit of dispute that the commission of one offense cannot be given in evidence on the trial of a person for another, merely for the purpose of inducing the jury to believe that the prisoner committed one offense, because he committed one of the same nature on another occasion. "After a careful investigation of the subject the writer is forced to conclude that in the case of State v. Cowell, this rule was violated. " What bearing on the question of a man's intent in entering a house has the fact that three days before such entry he agreed with others to rob the owner of the house on the street? Does it show that his intent was to steal? Decidedly not, unless the fact that a man is bad enough to steal tends to show that he en- tered a house for that purpose. If the evidence of the agreement to rob had no more bearing on the question of intent than this, it should not, as we have al- ready seen, been received. Had it any more bearing? The writer thinks not, and his views are sustained by decisions of undoubted authority." Here follows a collation of apt authorities beginning with Einchelow v. State, 5 Humph. 9, where it was held that an accomplice could not, with a view tO' sustain his testimony, be permitted to narrate other instances of crime proposed to him by the defendant, though made in the same conversation in which the RELEVANCY. 77 ■crime charged was proposed. The court in its decision, said: "The only ob- ject of such testimony necessarily is to prejudice the minds of a jury, as it can by no possibility establish or elucidate the crime charged. We can well see how a jury who, in the case under consideration, might have unhesitatingly refused to find a verdict against the prisoner upon the evidence of the witness confined within its legitimate scope, may have been misled by the proof of the utter baseness and want of principle as detailed against him." In People v. Corhin, 56 N. Y. 3G3, 15 Am. Rep. 427, it was held that upon a trial for forgery, the confession of the prisoner that he had committed other forgeries was not admissible on the question of criminal intent. In Bonsall v. State, 35 Ind. 460, it was held that on the trial of the prisoner for a robbery committed on December lGth, it was error to allow the prosecu- tion to show a second robbery of the prosecutor by the prisoner on the follow- ing day. In People v. Barnes, 48 Cal. 551, it was held error for the trial court to admit evidence showing that on the night previous to that on which the burglary for which he was on trial was committed, the prisoner entered the prosecutor's room and stole a sum of money. In Barton v. State, 18 Ohio, 221, it was held that upon the trial of the pris- oner for stealing a horse, evidence that he had on the night of the day previous to that on which the horse was taken, stolen a sum of money, was inadmissi- ble. In holding that such evidence was not admissible on the question of the prisoner's intent in taking the horse, the court say: "Although the court, in' this instance, say that the evidence was only admitted for the purpose of show- ing the intent with which the defendant got possession of the property, yet we do not see any connection between the two transactions that would enable any legitimate conclusion to be drawn as to that fact. The ouly conclusion we can see that could fairly be drawn from the evidence, would be that the defeudant intended to steal the horses and other property with which he was charged, be- cause he was a thief and had just before stolen a sum of money. Each case must be tried on its own merits and be determined by the circumstances con- nected with it, without reference to the character of the party charged, or the fact that he may have previously committed similar crimes. On the part of the prosecution the general bad character of the defendant cannot be proved, when he offers no evidence of character; much less can particular acts of his be proved of which the record gives him no notice and which he, therefore, cannot be expected to meet." See also on this point, Coleman v. People, 55 N. Y. 81; People v. Bowen, 49 Cal. 654; People v. Jones, 31 Cal. 565; Fairer v. State, 2 Ohio St. 54; State v. Merrill, 13 N. C. 269; State v. Wisdom, 8 Port. (Ala.) 511. A resort to the very valuable annotation of section 1, Stephen's Digest by Judge May, will disclose a supplementary discussion of this somewhat con- fused topic of " Relevancy," but along other lines of investigation than those indicated in the preceding note, — as instance the following: — There seems to be no general test of relevancy. What is relevant on one issue is not relevant on the other. When the issue is fraud, great latitude is allowed in the proof of circumstances. Peels v. Knight, 8 Mart. N. S. 267. Cir- cumstances so trivial and remote in themselves, that, if individually and sepa- rately offered, they might justly be rejected, may, from their multitude and relation, become important and obviously relevant. Slate v. Watkins, 9 Conn. 52. Especially, in cross-examination, when it becomes important to show 78 RELEVANCY. ■who and what and how related to the case the witness is or may be, are many questions relevant which otherwise would not be relevant. The decisions of courts of last resort afford no data, and have no such uniformity or similarity as to afford the grounds of a general rule. What they decide to be relevant or irrelevant is or is not so, for the particular case and within their jurisdic- tion, and to that extent only. A few cases, showing what has and what has not been deemed relevant, will serve to illustrate this remark. It will generally be found that the circumstances of the parties to the suit at the time of the controversy are relevant. On the trial of an action for work done and mate- rials supplied to certain houses on the orders of a third person, the defendant denying that he is the owner of the houses, or the real principal, evidence is relevant that other persons had received orders from the defendant to do work at the same houses, without showing that the plaintiff knew of those orders at the time he did his work. But if the orders had been to do work upon other houses, it seems they would not have been relevant. Woodman v. Buchanan, L. R. 5 Q. B. 585; Bowling v. Bowling, 10 Ir. L. Rep. 236. The question being whether A loaned money to B, the fact of A's property at the time of the alleged loan is relevant. Bowling v. Bowling, supra. The question be- ing to which of two persons the plaintiff gave credit, the facts that he had already before brought suit upon the same demand against one, is relevant, as showing that he did not give credit to the other. Head v. Taylor, Litt. Sel. Cas. 258. On proof that the defendant was at a certain place where he might have committed an alleged trespass, it is relevant to show that he was there from another motive than to commit it. Prindle v. Glover, 4 Conn. 266; Tracy MbManus, 58 N. Y. 257. The fact that A usually procured and paid for the board of the workmen in his employ at other boarding houses, is relevant on the question of his indebtedness for the board of those boarding with B. B (eight v. Brown, 9 Conn. 83. The question being whether A caused B to mis- carry, by violence, the fact that B had several times before miscarried, without violence, is relevant. Slattery v. People, 76 111. 217. Stephen, Dig. (May's ed.) Chap. 1, art. 1, note. For further exposition of this subject see 1 Rice.. Civil Evidence, chap. 12. CHAPTER VIII. LETTERS. | 44. Present little* Regarding Letters. 45. Importance of Letters. 46. Originals Must be Produced or Accounted for. 47. Letter-press Copies. 48. Foundation for Secondary Evidence of ( 'ontents. 49. Views of the Massachusetts Supremt Court. 50. Mailing Letters Raises the Presumption of Receiving, 51. Genuineness Must be Shown. 52. Unanswered Letters. 53. Failure to Answer as Admission. 54. Extract from a Lost Letter. 55. Decoy Letters. 56. Miscellaneous Authorities. § 44. Present Rules Regarding Letters. — Letters as "writ ing." A letter is certainly a "writing," if addressed by one person to another. While we may call it a letter, it is also a writing, whether the characters are made with the pen. by type, or in any other manner. United States v. Gaylord, 17 Fed. Rep. 441:. United States v. Britton, 17 Fed. Rep. 732. The word "letter" will include the envelope in which it is sent; as, in a notice to produce a letter. United States v. Duff, 19 Blatchf. 10. The postmark on a letter is prima facie evidence that the letter was in the postoffice at the time and place specified. New II Count tj Bank v. Mitchell, 15 Conn. 206; Bussa/rd v. Levering, 19 U. S. 6 Wheat, 102, 5 L. ed. 215; Lindenberger v. Beall, L9 U. S. 6 Wheat. 104, 5 L. ed. 216; Biggs v. Match, 16 Fed. Rep. 838, 842, 850; Rosenthal v. Walker, ill U. S. 193, 28 L. ed.398; Montelius v. Atherton, C Colo. 227; Breed v. First Sat. Bank, 6 Colo. 235. If a letter is sent by post, it is presumed from the known course in that department of the public service that it reached its desti- nation at the regular time, and was received by the person to whom it was addressed. Breed v. Fird Nat. Ban]:, supra. 79 80 LAW OF EVIDENCE IN CRIMINAL CASES. § 45. Importance of Letters. — Letters frequently disclose facts that are well calculated to unfold and develop the nature of a transaction, and they should be admitted as part of the res gestae, notwithstanding they contain declarations in a party's favor. Beaver v. Taylor, 68 U. S. 1 Wall. 637, 17 L. ed. 601. Although a letter contains a statement as to an alleged agree- ment made after the date when an agreement was made, it is still admissible as part of the res gestae. McCotter v. Hooker, 8 !N. Y. 497; Palmer v. First Nat. Bank, 4 K Y. Week. Dig. 268; Jewell v. Jewell, 42 U. S. 1 How. 219, 232, 11 L. ed. 108, 114; Com. v. McPike, 3 Cush. 181, 1 Am. Eep. 727; Com. v. JIaekett, 2 Allen, 136; Tompkins v. Saltmarsh, 14 Serg. & R. 275; Paw- son v. Eaigh, 2 Bing. 99, 104; Pidley v. Gyde, 9 Bing. 349; Pouch v. Great Western P. Co. 1 Q. B. 51; Thorndike v. Boston, 1 Met. 242, 247; Doe v. Arkwrigld, 5 Car. & P. 575. § 46. Originals Must be Produced or Accounted for. — The mere fact that a party keeps letter-press copies, does not relieve him from the necessity of producing the original, or of laying foundation in the ordinary usual way, for the reception of second- ary evidence. Foot v. Bentley, 44 K Y. 171, 4 Am. Rep. 652; King v. Worthington, 73 111. 161; Watkins v. Paine, 57 Ga. 50; Delaney v. Erlc'kson, 10 Neb. 492; Ward v. Beads, 14 Neb. 114. And in Maryland it is held that, to entitle a party to the intro- duction of secondary evidence, the opposite party must have been served with a notice to produce the original document; and, further, that some proof must be adduced that this notice was received. Marsh v. Hand, 35 Md. 123. This entire topic is the subject of an extended note appended to the case of the Oregon SS. Co. v. Otis, 14 Abb. K C. 388, 53 Am. Rep. 221. § 47. Letter-press Copies.— A sworn copy of a letter-press copy of a lost letter is competent as evidence of the contents of the letter, without producing the letter-press copy. Goodrich v. Weston, 102 Mass. 362, 3 Am. Rep. 469. This is upon the ground that there are no grades of secondary evidence. When- ever a copy of a record or document is itself made original or primary evidence, the rule is clear and well settled that it must be a copy made directly from or compared with the original. If the first copy be lost or in the hands of the opposite party, so long as another may be obtained from the same source, no grounds can LETTERS. ' 81 be laid for resorting to evidence of an inferior or secondary char- acter. 3 Waite, Law & Pr. (5th ed.) 444. So when secondary ■evidence is admissible, parol evidence of the contents of a docu- ment is admissible, although there is a copy of the document in evidence. Doe v. Boss, 7 Mees. & W. 102, 107; Best, Ev. § 87. But this rule is not universally recognized, and it has in many instances been held that the general rule applies also to secondary evidence, so that a copy of a copy is not evidence, although a copy of the original paper might be, in some cases. See People v. Riley, 15 Cal. 48; Reeve v. Long, Holt, 286; Liebman v. Pooley, 1 Stark. 167; Emringham v. Roundell, 2 Mood. & R. 138; Coman v. State, 4 Blackf. 241. But though a press copy is secondary, it may be used as a means •of determining the identity and genuineness of an instrument. ■Com. v. Jeffries, 7 Allen, 561, S3 Am. Dec. 712; Whart. Crim. Ev. § 177. The weight of authority favors the contention that a copy of a letter to the opposite party, cannot be given in evidence when no notice has been given to produce. Chicago v. Greer, 76 U. S. 9 Wall. 726, 19 L. ed. 769. § 48. Foundation for Secondary Evidence of Contents. — When it becomes necessary to prove the contents of letters which have passed between parties, the originals must be produced, or the party desiring to give proof of their contents must lay the foundation for secondary evidence in the ordinary and usual way. Letter-press copies are in no sense original papers, and cannot be admitted in evidence without the preliminary proof. Foot v. Bentley, 44 K T. 166, 4 Am. Eep. 652; Marsh v. Hand, 35 Md. 123. When this proof has been given these copies are ad- mitted as evidence. § 49. Views ot the Massachusetts Supreme Court. — The Massachusetts supreme court has outlined the prevailing juridical view relative to this subject in an opinion by Chief Justice Bige- low. This decision although rendered in 1863, is unimpaired and the logic that originally supported it retains all of its force and vigor. The court admitted press or machine copies of certain letters, purporting to have been written by the defendant, to hi: read to the jury. These wereadjudgnl competent on two grounds. Independently of proof that the originals were in the handwriting ■of the defendant, the copies were admissible as documents in his 6 82 LAW OF EVIDENCE IN CKIMINAL CASES. possession, and to which ho had constant access. They therefore- furnished room for the inference that he was acquainted with their contents, and affected him with an implied admission of the statements contained in them. This is the ordinary rule of law applicable to papers found in the possession of a party. 1 Greenl. Ev. § 198, and cases cited. Evidence of a precisely similar char- acter was admitted without objection in Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596. Nor are we able now to see any valid reason for excluding it. But upon another and distinct ground the court was of opinion, that the evidence was admissible. The press copies, as they are called, were in fact proved to have been in the handwriting of the defendant. They were in truth a part of the original letters as written by him, transferred by a mechanical pressure to other sheets. But such transfer did not destroy the identity of the handwriting as shown on the impression, or render it unrecogniz- able by persons acquainted with its characteristics. These to a considerable extent it must necessarily still retain, so that a person having adequate knowledge could testify to its genuineness with quite as much accuracy as if he had before him the original sheets on which the letters were first written. Writings thus transferred are not unlike written documents which have been defaced or partially obliterated by exposure to dampness, rough usage, or the wasting effect of time. Such papers may not possess all the dis- tinctive features of the original handwriting, but their partial destruction or obliteration will not render them inadmissible as evi- dence, if duly identified by testimony. A press copy, it is true, might furnish a very unsatisfactory standard of comparison by which to determine whether another paper, the handwriting of which w T as in controversy, was written by the same person, be- cause the mechanical process to which it had been subjected in transferring it would, by spreading the ink and blurring the letters, necessarily somewhat affect its general resemblance. For this reason it was rejected when offered for such purpose in Com. v. Eastman, 1 Cush. 217, 48 Am. Dec. 596. But although in- competent as a means of comparison by which to judge of the characteristics of handwriting which is in dispute, it might still retain enough of its original character to be identified by a wit- ness, when its own genuineness was called in question. Com. v. Jeffries, 7 Allen, 518, 83 Am. Dec. 712. LETTERS. 83 § 50. Mailing Letters Raises the Presumption of Receiv- ing. — Letters placed in designated repositories or delivered to a postman, when duly addressed and stamped, afford prima facie evidence that they were duly received by the addressee. Oaks v. Welter, 13 Vt. 106, 38 Am. Dec. 583; Connecticut v. Bradish, 14 Mass. 296; Oregon SS. Co. v. Otis, 100 N. Y. 446, 53 Am. Kep. 221; Breed v. First Nat. Bank, 6 Colo. 235; Durhee v. Vermont Cent, B. Co. 29 Yt. 127; Tanner v. Hughes, 53 Pa. 289; Plath v. Minnesota Farmers Mut. F. Ins. Co. 23 Minn. 479, 23 Am. Rep. 697; Howley v. Whipple, 48 N. H. 487; Sulli- van v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901; Scott & Jar- nagin, Telegraphs, §§ 340, 341; Allen, Teleg. Cas. passim; Bo- senthal v. Walker, 111 IT. S. 193, 28 L. ed. 398. A letter is presumed to reach its destination at the regular time, and to be received by the addressee, if living at the place and usually receiving letters there; as, in cases where notice of the protest of paper is to be sent to an indorser. MonteUus v. Atherton, 6 Colo. 227. If a letter offered in evidence purports to be a reply to a letter referred to, the letter must be called for, in order to put in evi- dence with it. Harvey v. Pennypacker, 4 Del. Ch. 454. § 51. Genuineness must be Shown. — The New York supreme court holds that secondary evidence of the contents of a written instrument, when allowed, does not obviate the necessity of prov- ing the genuineness of the instrument, but renders it more imper- ative. When secondary evidence of the contents of a writing is admissible, it is indispensable that the person by whom it is pro- posed to prove it should have seen and read the writing, and can speak from personal knowledge. His having heard another per- son read it is not sufficient, and a party cannot be charged with notice of the contents of a letter written and sent to him, without proof that it was properly mailed and forwarded to his address. Dainese v. Allen, 14 Abb. Pr. K S. 303. The placing of a communication in a box used by the party for the deposit of letters creates a presumption that it reached him, — and his denial that he received it raises a conflict of evidence. Dana v. Kernble, ^9 Pick. 112; Bluck v. Thome, 4 Campb. 192; Howard v. Daly, 61 K Y. 362, 19 Am. Eep. 285. When it is necessary to prove a demand by the introduction of 84 LAW OF EVIDENCE IN CRIMINAL CASES. a letter containing other matter, only that part of the letter which contains the demand can he put in evidence, and if the demand is admitted the letter is properly excluded. Railway Pass. Assur. Co. v. Warner, 1 Thomp. & C. addenda, 21. Where a letter is offered for the purpose of proving a notice contained in it, a general ohjection is not sufficient, but the inad- missible part must be objected to. Stokes v. Johnson, 57 N. Y. 673. § 52. Unanswered Letters. — The supreme court of Illinois held in a very celebrated case decided in 1887, that an unanswered letter is admissible in evidence against the person who received it and to whom it was addressed, if it appears to have been invited by him, and to have been written in response to some previous communication by him. Spies v. People, 122 111. 1, subse- quently considered in the Supreme Court of the United States, Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80. § 53. Failure to Answer as Admission. — An omission of one of the parties to a transaction, to answer a letter written to him after the transaction, by the other party thereto, giving the latter's version thereof, may not be taken as an admission to the truth of the statements in the letter; they are mere declara- tions of the writer in his own behalf, which do not demand an answer, and are not admissible against the party to whom the let- ter is sent. The mere ex parte statements of a party's case can- not be received as evidence simply on the ground that it remains unanswered. Learned v. Tillotson, 97 X. Y. 1. Reasons may exist why he may choose and has a right to remain silent and to vindicate himself at some future period and on some more op- opportune occasion. Talcott v. Harris, 93 N". Y. 507. But when part of an act, declaration, conversation or letter or other writing has been given or read in evidence by one party, so much of the remainder thereof as tends to explain or qualify what has been received may be given or read in evidence by the other. ^Vlien a letter has been read in evidence, so much of the answer as tends to explain, qualify or deny material parts of the letter may be read in evidence; and when an act, declaration, conversation or writing has been given or read in evidence, any other act, declaration, conversation or writing, which is necessary to make it understood, may also be given or read in evidence. See Roe v. Bay, 7 Car. & P. 09S ; GashUl v. Skene, 11 Q. B. 064. LETTERS. 85 § 54. Extract from a Lost Letter. — The Xew York courts hold that an extract from a lost letter is not evidence, unless the witness can testify as to the contents of the whole document. Walbridge v. Kilpatrick, 9 Hun, 135. Where the person to whom the letter is written testifies that he does not know where it is, but believes it has been destroyed, its contents are admissible in evidence. Green v. Disbrow, 7 Lans. 381. And it further appears from the decisions that mere possession of letters addressed to one does not render them compe- tent against him. Willett v. People, 27 Hun, 169. In this connection it is well to observe the constant tendency on the part of the courts of last resort throughout this country to admit evidence of any facts which tend to elicit the truth. Con- necticut Mut. L. Ins. Co. v. ZatArop, 111 U. S. 612, 28 L. ed. 536. § 55. Decoy Letters. — A decoy letter sent by one engaged in larceny to the porter of a warehouse for the purpose of alluring the latter from his place, is admissible against one who is shown to be connected with such larceny. McCai % ney v. People, 83 N. Y. 408, 3S Am. Kep. 456. § 56. Miscellaneous Authorities.— Letters written by the president of a bank concerning business of the bank are admissi- ble in evidence against the bank, though written in his individual capacity and though at the time they are offered in evidence his interests are adverse to those of the bank. Panhandle Nat. Bank v. Emery, 78 Tex. 498. On the issue as to actual membership of a firm, letters written by the party sought to be charged as a member, pertaining to the partnership business, are admissible in evidence, although they were written after the transaction as to which he is sought to be charged. Da/uegvport Woolen Mills Co. v. JVeinstedt, 81 Iowa, 226. Letters from the mother of an illegitimate child to its nurse may be admitted in evidence for the purpose of showing her assent to the disposition that is being made of the child, and the manner in which it is being provided for, but are incompetent for the purpose of proving paternity. Re Jessaj/s Estate, 6 L. E. A. 594, SI Cal. 408. The genuineness of a private letter is not sufficiently proved by the testimony of the receiver that he received it by mail, and that 86 LAW OF EVIDENCE IN CRIMINAL CASES. it is the signature of a certain person, of whose signature he has no knowledge. Sweeney v. Ten Mile Oil da G. Co. 130 Pa. 193. And the mere receipt of letters purporting to be from a person never seen, and with whom no subsequent relations existed, which were based on them as genuine, does not qualify the recipient to prove the handwriting of the signer. PinTiham v. CocJcell, 77 Mich. 265. The exclusion of a letter written by a third person to an agent, introduced in evidence against the principal, is not error where there is no evidence that the principal authorized the letter to be written. Hargrove v. John, 120 Ind. 285. A copy of a letter cannot be received in evidence over the objection of the first party, unless it is shown that the original is lost or destroyed. Watson v. Roode, 30 Neb. 261. Secondary evidence of the contents of a lost letter is incompe- tent unless the witness is shown to be acquainted with the hand- writing of the alleged writer of the letter. Bone v. State, 86 Ga. 108. Parol evidence is admissible to prove the subject-matter of a letter which cannot be produced on the trial. Hagan v. Merch- ants & B. Ins. Co. 81 Iowa, 321. A letter written by a third person is inadmissible against a party who is not shown to be bound by its contents. Zeigler v. Henry, 77 Mich. 480. In an action for false imprisonment and malicious prosecution, a letter of the prosecuting attorney authorizing the commence- ment of the proceedings, tending to show motive and probable cause that an offense has been committed, and that the usual course was taken in such cases, is admissible. Thurston v. Wright, 77 Mich. 96. A party cannot introduce in evidence in his own behalf letters purporting to have been written by him, to show that a contract is as he claims it to be, where there is nothing to show that the one to whom they were written ever received or acted upon them. Griffith v. Lake (Tex.) Oct. 28, 1889. Where letters and postal cards have been put in evidence for the purpose of showing a partnership between defendant and another, he may, for the purpose of showing that some of them related to other matters, put in evidence other letters and postals between the same parties. Morgan v. Farrel, 58 Conn. 413. LETTERS. 87 Upon an indictment for larceny in obtaining goods by means of a false representation or pretense, evidence of other similar transactions at or about the same time is competent as bearing upon the question of intent. Letters written by the prisoner to other dealers, and their replies thereto, and the procuring of the goods by means thereof, are admissible for such purpose, but let- ters written long after the transaction has taken place are not .admissible for any purpose. People v. Luke, 27 JS". Y. Week. Dig. 51. CHAPTER IX. TELEGRAMS. § 57. Rule as to Letters Applied. 58. Original Message the Primary Evidence. 59. Views of Different Courts. a. Of Illinois Supreme Court. b. Of Alabama Supreme Court. c. Of the United States Circuit Court. 60. Presump>tions as to Telegrams. 61. Secondary Evidence of Contents. % 57. Rules as to Letters Applied. — The legal intendments that follow and apply to evidentiary facts connected with the in- troduction of letters as media of proof, suggest the question whether similar intendments are to be indulged with reference to^ telegrams. The drift of authority gives the affirmative answer. Gray, Telegraphs, § 136; Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712; Whart. Ev. § 76; State v. Hopkins, 50 Vt. 316; Scott & Jarnagin, Telegraphs, § 345. The presumption indulged in is one of fact, and so open to rebuttal and contradiction, and consists merely in the natural inference which may be drawn from the experienced certainty of transmission. The great bulk of letters sent by mail reach their destination, and equally so the great bulk of telegrams. A failure in either case is an exception, possible, but rare. The letters are transported by government officials under oath, and upon a system framed to secure regularity and precision; telegrams by private corporations, whose success and prosperity depend largely upon the accuracy and promptness of the work, and are faithful under the incentive of interest. These companies perform a public service and are regulated to some extent by the public law. There is impressed upon the telegraph service something of a public character, and thrown around it the guard and the obligations of the public law, and it seems to us reasonable to assimilate the rules of evidence founded upon trans- mission by mail to that of transmission by telegraph. It may be that the presumption of correct delivery, agreeing in kind with that raised upon delivery to the postoffice, should be deemed weaker in degree, but in view of the wide extension of telegraphic 88 TELEGRAMS. 89 facilities, and of their increasing use in business correspondence, and the difficulty of tracing a dispatch to its destination, it should be held that upon proof of delivery of the message for the pur- pose of transmission, properly addressed to the correspondent at his place of residence, or where he is shown to have been, a pre- sumption of fact arises that the telegram reached its destination sufficient at least to put the other party to his denial, and raise an issue to be determined. There is greater safety in conceding the existence of such a presumption of fact under a system like ours in which the party addressed is always at liberty to testify, and if dead, his representatives are protected against the evidence of hi& adversary as to personal transactions and communications. The primary and original evidence of that fact would be the teleoram itself, and the handwriting of the sender, or of an agent shown to have been duly authorized; but when it appears that the teleoram has been destroyed by the company, secondary evidence of the essential fact may be given. Howley v. Whipple, 48 1ST. H. 487*. Durkee v. Vermont Cent. R. Co. 29 Vt. 127; Breed v. First Nat. Bank, 6 Colo. 235; Rosenthal v. Walker, 111 IT. S. 185, 28- L. ed. 395. §58. Original Message the Primary Evidence.— It is only on proof excusing its production that a copy of it can be received in evidence or its contents be shown aliunde. The rule which is- applicable to letters, applies to telegrams affecting contracts, Wharton, Ev. § 76; Scott & Jarnagin, Telegraphs, § 340; Mat- teson v. Noyes, 25 111. 591; Durkee v. Vermont Cent. R. Co. 29 Vt. 127. It has been held in Williams v. Brickell, 37 Miss. 6S2, 75 Am. Dec. 88, that although secondary evidence of the contents of a telegram is inadmissible without accounting for the absence of the original, yet a new trial will not be granted on account of the irregular admission of such secondary evidence if it appears that the sender himself admitted the sending of the telegram and the contents of it. His omission to deny the sending of the alleged telegrams should have the same effect. Adams v. Davidson, L0 K Y. 309; Oregon SS. Co. v. Otis, 14 Abb. K C. 388, 53 Am. Eep. 221. Where a party sending a message is the responsible party, and sends a message for the purpose of giving directions to be acted upon, the message delivered at the end of the line is the original. "90 LAW OF EVIDENCE IN CRIMINAL CASES. Morgan v. People, 59 111. 58. In Wilson v. Minneapolis & N. W. R. Co. 31 Minn. 481, the court says: "It is as though the .communication had been made orally by a personal agent, in which case it would have been enough to prove the agency and the message delivered by the agent." A telegraphic message is not admissible in evidence as a com- munication of a party offering it without proof of its authenticity. Burt v. Winona c& St. P. B. Co. 31 Minn. 472. On an indictment for forgery in a case reported from Vermont, the state's attorney introduced evidence showing that the accused had knowledge of a certain fact. This evidence was in the form of an uncertified copy of a telegram received by a third party, but purporting to have been sent by the accused, making inquiries about the fact in question. The answer to this message which had been received by the accused was also in evidence. It fur- ther appears, that the third party testified to the accuracy of the telegram he had sent to the accused, and the state had shown that the original message had been destroyed. The court admitted both telegrams, and the appellate tribunal affirmed the ruling. State v. Hopkins, 50 Vt. 316. § 59. Views of Different Courts. a. Of Illinois Supreme Court. — The Illinois supreme court has given this matter critical attention and in an early case reached a conclusion that embodies the most logical exposition of the principle underlying both the legal relations of the telegraph .company to the general public, and the rules of evidence this familiar relation is held to impose. It is an elementary principle that resort may always be had to the best evidence within the power of the party, by which the fact is capable of proof. And it is an inflexible rule that if it is in writing, the original must be produced, unless it be shown that it is destroyed, lost, or not within the power of the party to pro- duce it, before secondary evidence can be received of the con- tents, and before a copy of a written instrument can be admitted, a sufficient foundation must be laid by preliminary proof of de- struction or absence. Where no such proof is made to justify the reception of a copy in evidence, it is inadmissible. We know that, by the admirable system regulating the govern- ment of the telegraph companies, the original dispatch is pre- served, and may be at all times procured for proper purposes. TELEGRAMS. 91 The paper filed at the office, from which the message is sent, is of course the original, and that which is received by the person to whom it was sent, purports to be a copy. If the dispatch is sought to be used in evidence, the original must be produced, and its execution be proved, precisely as any other instrument, or its absence accounted for in the same mode, before the copy can be received. Matteson v. Noyes, 25 111. 591. b. Of the Alabama Supreme Court. — The supreme court •of Alabama, in a recent case, has had this entire subject under critical review. The distinguished Chief Justice Brickell, writing for affirmance and voicing the unanimous opinion of the entire •court says : " The general principle is, that a party is bound to produce the best evidence within his power, of which a fact is capable; and that whenever the original of a writing can be produced, second- ary evidence of its contents will not be received, and it is as applicable to telegrams as to other writings. There is some difficulty in determining whether the message delivered to a telegraphic office, or that which is delivered to the person to whom it may be addressed at the point of destination, is to be re- garded as the original. Perhaps under some circumstances the one or the other may be considered the original. It is not now necessary to enter on that inquiry. If the message as it was delivered to, and may be preserved in the office of the telegraph company at Philadelphia, is to be regarded as the original, it was without the jurisdiction of the court, as was its custodian. It is a settled rule of evidence in this country, that if writings, neces- sary as evidence in a court of one state, are in the custody of persons residing in another, secondary evidence of their contents will be received." American U. Teleg. Co. v. Daughtt ry, 89 Ala. 191; Shorter v. Sheppard, 33 Ala. CIS. And see Whilden v. Merchants & P. Nat. Bank, 6-1 Ala. 1, 38 Am. Rep. 1; Bur- ton v. Briggs, 87 U. S. 20 Wall. 131, 22 L. ed. 302; Seattle v. Billiard, 55 1ST. H. 428; Binney v. Russell, 109 Mass. 55. In a note appended to the case of Whilden v. Merchants & /'. Nat. Bank, supra, we find the following suggestive commentary upon the subject under review: " In Smith v. Saston. 54 Md. 138, 39 Am. Rep. 355, it was held that a telegraphic dispatch is not admissible in evidence without proof of the handwriting of the original and of its delivery for transmission. This was an 92 LAW OF EVIDENCE IN CRIMINAL CASES. action to enforce an agreement by telegraph to indorse. The court said : ' The message, sent by Easton, to be transmitted to Chesapeake city, was the original (Scott & Jarnagin, Telegraphs,. § 357, and authorities there cited) and not the message which was received over the wires .at Chesapeake city. The latter must be considered as a copy, and carries with it none of the qualities of primary evidence. Ordinarily the usual course is to show the delivery of the original message of the party sought to be charged, at the office from which it is to be telegraphed, and then show that it was transmitted and delivered at the place of its destina- tion. But even where the original is produced its authenticity must be established, and this either by proof of the handwriting, or by other proof establishing its genuineness. The destruction of all the messages sent from the office, on the day named, i& sufficient foundation for the admissibility of secondary evidence. But this secondary evidence can only be admitted upon proof that the copy offered is a correct transcript of the message actually authorized by the party sought to be affected by its contents.' This is sustained by Howley v. Whipple, 48 N. H. 487, and United States v. Babcock, 3 Dill. 576. Mr. Abbott (Trial Ev. 290) assents to this where the object is to prove assent or admission,, but says the copy delivered is the primary evidence to prove notice to the receiver. Wheat v. Cross, 31 Md. 99, 1 Am. Rep. 28. In Barons v. Brown, 25 Kan. 410, it is held that where the contro- versy is not between the sender and the person to whom a tele- gram is addressed, the original message, if not left or destroyed, must be produced." c. Of the United States Circuit Court. — In a very important case Judge Dillon admitted telegrams in evidence, addressed to the defendant by name, care of the Executive Mansion, "Washing, ton, D. C, on proof that they were received by the telegraph company in "Washington, and delivered to the doorkeepers at the executive mansion, it being shown that the defendant had an office therein as the private secretary of the President, and that the usage of the doorkeepers was to deliver such messages to the persons to whom they were addressed, or place them on their desks. Under such circumstances, telegrams were admitted,. without direct proof of their actual delivery to, or actual receipt by the defendant. The following is from the opinion of the court overruling the TELEGRAMS. 93 objections of the defendant to the introduction of dispatches pur- porting to be from the defendant, and to and from McDonald and Joyce : " We are of the opinion that the objection to the dispatches which have been offered in evidence, based upon the ground that they are not relevant or material, is not well taken. The jury is the constitutional tribunal to determine controverted questions of facts, under appropriate advice from the court to assist them in .the discharge of this duty. If the evidence offered tends, in any degree, to establish the existence of any material fact, it cannot be rejected as irrelevant, but must be received and submitted to the consideration of the jury. " To reject the dispatches offered, on the ground that they were irrelevant and immaterial, would be a decision by the court that such dispatches had nothing to do with the alleged conspiracy, and would take that question, which is a question of fact, from the jury, whose exclusive province it is to decide questions of fact. "We do not deem it expedient, or even proper, to remark upon the several dispatches, or to say anything in the presence of the jury calculated to disclose the views of the court as to the force and effect of the several dispatches offered in evidence. It is not to be inferred that, in admitting the dispatches, the court holds that they do or do not connect the defendant with the alleged conspiracy. That is a question for the jury, under advice and direction from the court, which should properly come in the •charge or summing up to the jury. "As to the objection that some of the dispatches addressed to the defendant were unanswered, we are of the opinion that, this alone does not constitute a sufficient ground to exclude them. Such dispatches are to be viewed in connection with all the cir- cumstances of the case, including the nature of the dispatches themselves, as calling for an answer or otherwise, and the situa- tion and relation of the parties, and the effect to be given to the circumstance, that no answers were returned, is to be determined by the jury upon the whole evidence, under the rules of the law to be given in the charge to the jury, bearing upon the subject. "As to the dispatches between McDonald and Joyce, confessed conspirators, such dispatches are admissible as statements or acts of conspirators among themselves, in furtherance of the con- spiracy; but as to. the defendant (Babcock) they go for naught, 94 LAW OF EVIDENCE IN CRIMINAL CASES. unless he is shown, by other evidence, to be connected with the conspiracy charged in the indictment." United States v. Bab- cock, 3 Dill. 5T1. § 60. Presumptions as to Telegrams. — Proof of the sending of a letter by mail raises the presumption of its receipt by the addressee, and for the same reasons telegrams are now held to be subject to the same rules. Trotter v. Maclean, L. R. 13 Ch. Div. 574; United States v. Babcock, 3 Dill. 573; Breed v. First Nat. Bank, 6 Colo. 235; Scott & Jarnagin, Telegraphs, §§ 340, 341; Allen, Teleg. Cos,, passim; Ilowley v. Whipple, 48 1ST. H. 487; Dunning v. Roberts, 35 Barb. 471; Trevor v. Wood, 36 1ST. T. 307; Durkee v. Vermont Cent B. Co. 29 Vt. 127; Rosenthal v. Walker, 111 U. S. 185, 2S L. ed. 395. The notice to produce is sufficient to authorize the admission of a telegram, although it may have been presumed that the papers called for were in the possession of the telegraph company. Burton v. Payne, 2 Car. & P. 520. By the unqualified indorsement of the United States Supreme Court, the principles announced by the state jurisdictions have received additional commendation as authoritative utterance of the law, and in Rosenthal v. Walker, supra, Mr. Justice "Wood announced the rule in language that places the sentiments of the Federal court beyond cavil, controversy, or question. He says : " The rule is well settled that if a letter properly directed is proved to have been either put into the postoffice or delivered to the postman, it is presumed from the known course of business in the postoffice department, that it reached its destination at the regular time and was received by the person to whom it was addressed. Saunderson v. Judge, 2 H. Bl. 509; Woodcock v. Houldsworth, 16 Mees. & W. 124; Dunlop v. Higgins, 1 H. L. ('as. 381; Cotton v. Gaylord, 3 "Watts, 321; Starr v. Torrey, 22 N. J. L. 190; Tanner v. Hughes, 53 Pa, 289; Howard v. Daly, 61 K Y. 362, 19 Am. Rep. 285; Huntley v. WhiUier, 105 Mass. 392, 7 Am. Rep. 536. As was said by Gray, J., in the case last cited : ' The presumption so arising is not a conclusive presump- tion of law, but a mere inference of fact, founded on the prob- ability that the officers of the government will do their duty and the usual course of business, and when it is opposed by evidence that the letters never were received, must be weighed, with all the other circumstances of the case, by the jury, in determining the question whether the letters were actually received or not.' " TELEGRAMS. 95- § 61. Secondary Evidence of Contents. — As in cases of other ■writings, proof of the loss of a telegram is a necessary foundation to the admission of parol evidence of its contents. Wliilden v. Merchants cfe P. Nat. Bank, 64 Ala. 1, 38 Am. Kep. 1. It has been held that the testimony of the operator in charge of the company's office from which a telegram was sent, that he sent away all the papers found there shortly after the telegram was sent, and that he has been informed that they were destroyed, is not competent to show the destruction of the telegram for the purpose of admitting parol evidence of its contents. A?nerican U. Tel eg. Co. v. Daughtery, 89 Ala. 191. This subject is treated generally in connection with the topic of the preceding chapter in 2 Rice, Civil Evidence, 1007-1040, CHAPTER X. MEMORANDA IN EVIDENCE. § 62. Prerequisites Necessary to the Introduction of Memoranda. 63. Time of Making Memoranda. 64. Memoranda of Party Since Deceased. 65. Views of the United States Supreme Court. 66. Views of the Alabama Supreme Court. 67. Statement of the English Rule. 68. A Distinction Noted. 69. Restrictions of the General Rule. 70. Recent Cases Examined. 71. The Formula Deduced. § 62. Prerequisites Necessary to the Introduction of Mem- oranda. — It is an indispensable preliminary to the introduction of memoranda in evidence that it should appear in the case that the witness is unable without the aid of the memoranda to speak from memory as to the facts. It is only as auxiliary to, and not as a substitute for the oral testimony of the witness that the writing is admissible. It is the duty of the court in all cases to see, before receiving a memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witnesses, and that there is necessity for its introduction on account of the inability of the witness to remember the facts. Collins v. Rochwood^ 64 How. Pr. 57. A witness who says that after refreshing his memory by a writ- ton memorandum, made by himself at or about the time of the occurrence, he cannot recollect the fact, but that he is confident that he knew the memorandum to be correct when it was made, is not required, to swear to the facts in positive terms, but the memo- randum itself is received in connection with and as auxiliary to the oral testimony. § 63. Time of Making Memoranda. — It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the trans- 96 MEMORANDA IN EVIDENCE. 97 action, and while it must have been fresh in his memory. The memorandum must have been "presently committed to writing," (Lord Holt in Sandwell v. Sandwell, Comb. 445, Holt, 295); "while the occurrences in it were recent and fresh in his recollec- tion," (Lord Ellenborough in Burrough v. Martin, 2 Campb. 112) ; " written contemporaneous with the transaction," {Chief Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313); or "contemporaneously or nearly so with the facts deposed to," Chief Justice Wilde, afterwards Lord Chancellor Truro, in Whitfield v. Aland, 2 Car. & K. 1015. See also Burton v. Plummer, 2 Ad. & L. 341, 4 Nev. & M. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72-77; Spring ■Garden Mut. Ins. Co. v. Evans, 15 Md. 54, 74 Am. Dec. 555. The reason for limiting the time within which the memorandum must have been made are, to say the least, quite as strong when the witness, after reading it has no recollection of the facts stated in it, but testifies to the truth of those facts only because of his confidence that he must have known them to be true when he signed the memorandum. Halsey v. Sinsebaugh, 15 ]ST. Y. 485; March/ v. Shults, 29 K Y. 346; State v. Bawls, 2 Nott. & McC. 331; CNeale v. Walton, 1 Rich. L. 234. It is an elementary rule that when an entry has been repeated, in the regular course of business, one having been copied from another, at or near the time of the transaction, all the entries are regarded as original. § 64. Memoranda of Party Since Deceased.— The authori- ties are unanimous in declaring that memoranda made by a per- son in the regular course of his employment are competent as evidence after his death and the inclination seems to be to extend this rule so as to include those parties who have passed beyond the jurisdiction of the court or through infirmity or insanity are unable to attend the trial. These assertions find warrant and support in the following cases: Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181; Philadelphia Bank v. Officer, 12 Serg. & R. 49; Augusta v. Windsor, 19 Me. 317; Cass v. Bellows, 31 N. H. 501, 64 Am. Dec. 347; Whitcher v. McLaughlin, 115 Mass. 167; Mayson v. Beazley, 27 Miss. 106; Massey v. Allen, L. II. 13 Ch. Div. 558; Welsh v. Barrett, 15 Mass. 380; Stewartv. Conm r, 9 Ala. 803; Elliott v. Dycke, 78 Ala. 150; Laird v. Campbell, 100 Pa. 159; State v. Phair, 48 Vt. 366; Porter v. Judson, 1 Gray, 7 98 LAW OF EVIDENCE IN CRIMINAL CASES. 175; Costello v. Orowell, 133 Mass. 352; Walker v. Curtis, 116 Mass. 98; Callaway v. McMillian, 11 Heisk. 557; Bland v. Warren, 65 N. C. 372; Clemens v. Patton, 9 Port. (Ala.) 289; Field v. Boynton, 33 Ga. 239; Craft's App. 42 Conn. 146. "While this general statement of the doctrine is universally ac- cepted, there are some points of difference in its practical applica- tion. These differences will be found, upon careful examination, to arise, not from any doubt as to the general principle itself, but from a certain want of uniformity in the local law of the various states in respect to the nature of the quantum of preliminary proof. § 65. Views of the United States Supreme Court. — The high consideration which attaches to any decision of the United States Supreme Court naturally invests its utterances with great interest and imposes a certain degree of respect upon the most assertive and unconventional tribunal. In a very recent case the topic now under treatment received the attention of that court, and a decision was reached that will doubtless go far to quiet the controversy upon this subject. The court, Mr. Justice Gray writing the opinion, holds that a memorandum in writing, of a transaction which occurred twenty months before its date, and which the person who made the memorandum testifies that he had no recollection of, but knows it took place because the mem- orandum so states, and because his habit was never to sign a state- ment unless it was true, cannot be read in aid of his testimony. Parsons v. Wilkinson, 113 U. S. 656, 28 L. ed. 1037. Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contempora- neous with the transaction to which they relate. NicJwlls v. Well, 21 U. S. 8 Wheat. 326-337, 5 L. ed. 628-630; JEtna Ins. Co. v. Weide, 76 U. S. 9 Wall. 677, 19 L. ed. 810; Republic Fire Ins. Co. v. Weide, 81 U. S. 14 Wall. 375, 20 L. ed. 894; Chaffee v. United States, 85 U. S. 18 Wall. 516, 21 L. ed. 908. § Q6. Yiews of the Alabama Supreme Court. — The pres- ent status of this entire subject has the benefit of a discriminating and logical review from Mr. Justice Stone of the Alabama su- preme court. As it would be difficult to frame in language a more elucidative statement, we append the decision in full. "The law recognizes the right of a witness to consult memo- randa in aid of his recollection, under two conditions: First, when after examining a memorandum made by himself, or known MEMORANDA IN EVIDENCE. 99 or recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testi- mony thus given, and ordinary evidence of facts, is that the wit- ness by invoking the assistance of the memorandum, admits that without such assistance his recollection of the transaction he tifies to had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out same on cross-examination. This he may do for the purpose of testing its sufficiency to revive a fading or faded recollection, if for no other reason. "In the second class are embraced cases in which the witness cannot testify to an existing knowledge of the fact, independent of the memorandum ; in other words, cases in which the memo- randum fails to refresh and revive the recollection, and thus con- stitute its present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum nor the testimony of the witness can go before the jury. If, however the witness go further, and testify that at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the wit- ness and the memorandum. The two are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum." AcJden v. Hickman, 60 Ala. 568. In order to refresh the recollection of the witness it is not im- portant that the paper, book or memorandum should have been written or printed by himself, or that it should be an original writing. It is sufficient that he saw it while the facts stated therein were fresh in his memory, and he knows that they are correctly transcribed or printed. Upon inspecting it, he can state the facts, if thereby called to his recollection. Chopin v. Lapham, 20 Pick. 467. See Coffin v. Vincent, 12 Cush. 98; Kensington v. Inglis, S East, 273; Rex v. Dutchess of Kingston, 29 How. St. Tr. 619; Burton v. Plumnu r, -1 Ad. 6c El. 311 ; Huff v. Bennett, 6 K Y. 337. In Home v. M'Kenzie, 6 Clark .V V. 728, a surveyor was called to refresh his memory by an extract 100 LAW OF EVIDENCE IN CRIMINAL CASES. from his field notes, embodied in a printed note made by him, and verified by him as correct. § 67. Statement of the English Rule. — "A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction, concern- ing which he is questioned, or so soon afterwards that the judge considers it likely that the transaction was then fresh in his mem- ory. "The witness may also refer to any such writing made by any person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. "An exjjert may refresh his memory by reference to profes- sional treatises." Stephen, Dig. art. 136. § 68. A Distinction Noted. — A distinction which it is of the utmost importance to observe is this: In all instances where the witness has a clear and accurate recollection of the fact it is sought to show by the written memoranda — has a vivid recollection of all facts independent of the memoranda — the latter must be excluded from all consideration. It is not admissible as a medium of evi- dence, and must not be introduced. Corning v. Ashley, 4 Denio, 354; Peck v. Von Keller, 76 K Y. 604; Dunn v. James, 62 How. Pr. 307. The importance of emphasizing this distinction is illustrated in a recent case in the general term of the fourth department of the New York supreme court. The action was for goods sold and delivered, the answer alleged payment; on the trial the defendant stated: "I remember distinctly paying this money, I Avas per- fectly sure I had paid it without looking at my memorandum." Just here was developed the difficulty that led to the reversal of the case, and where the subtlety of the distinction sought to be emphasized is best illustrated. The defendant swears to a distinct recollection of paying, independent of the written memorandum which he produced and read from, under the objection of coun- sel. The objection was to the incompetency of the written mem- orandum, it appearing that the witness could distinctly recall the fact without it — that his recollection of the transaction which resulted in the payment of the claim was vivid and abiding, and that he was in no wise dependent for the least assistance upon the writing. Collins v. Bockwood, 64 How. Pr. 57. In Marcly v. Shults, 29 1ST. Y. 346, the same rule was approved, MEMORANDA IN EVIDENCE. 101 and it was held that a memorandum was incompetent because, in the language of Judge Mullin, "it was not intimated by the wit- ness that he did not remember the fact without reference to the memorandum." And at page 335 of the same case, Judge Denio reaffirms the same rule. The absence of harmony in the various state decisions as to the legal status of the writing itself admonishes us to indicate a further distinction which should constantly be borne in mind. This distinction relates to the varying degrees of credence given to the original memorandum, and a copy of it. Those jurisdic- tions which still adhere to the exclusionary principles of the early common law decisions are inclined to a very discourteous recep- tion of a principle which has found great favor in other states. To introduce into one cause a copy of a paper the truth of the copy must be first established and a proper foundation laid for its introduction, {Smith v. Carrington, 8 U. S. 4 Cranch, 65, 2 L. ed. 551; Catlin v. Underhill, 4 McLean, 199) but after such founda- tion is laid, the memorandum itself may be introduced and it is abundantly established by authority that such evidence is compe- tent. Pembroke v. Allenstown, 41 1ST. H. 365; Guy v. Mead, 22 jST. Y. 462; Halsey v. Sinsebaugh, 15 K Y. 4S5; jEtna Ins. Co. v. Weide, 76 U. S. 9 Wall. 677, 19 L. ed. 810. See also Moots v. State, 21 Ohio St. 653. § 69. Restrictions on the General Rule. — There is some con- flict in the authorities regarding the rules as to the admission of memoranda as evidence, and we find an unfortunate disposition in some jurisdictions among jurists of acknowledged eminence to uphold the principle engrafted upon the Scottish law, and approved by Lord Tenterden, to exclude from consideration all memoranda not in the handwriting of the witness. This refine- ment must be clearly apprehended. The doctrine was asserted and declared in the early years of the common law, and has been a pet theory with the Scottish jurists, who have continued to assert it with unbroken force from the earliest time. "The law is a practical science and repudiates subtle refine- ments and speculative inquiry. It will not sacrifice substantial rights to impracticable processes, but will reject them to make way for practical justice. Recondite discussion of 'efficient cause,' 'plurality of causes,' and cognate topic are for the meta- physician and the speculative philosopher, not for the practical 102 LAW OF EVIDENCE IN CRIMINAL CASES. lawyer or judge. There are doubtless instances where the reason- ing which supports the rule excluding the memoranda of a stranger from evidence operates in a beneficial way, but those instances merely illustrate the force of that glib phrase 'hard cases make bad law.' " Tait, Ev. § 133. A legal maxim originating in the dark ages has been the pro- lific source of this contrariety of view, and is directly responsible for the sluggish attitude of some courts upon this subject of mem- oranda. Where memoranda of disputed items covering ten years, made by a decedent on a loose slip of paper, found in his desk after death, without proof that they were original items, or when made, or that it was his custom to make charges in this manner, are not admissible as evidence of an indebtedness to the decedent. Bar- ber v. Bennett, 5S Yt. 476, 56 Am. Rep. 565. While the peculiar situation disclosed by previous evidence had given this case an exceptional status in the law of evidence, still we can detect the presence of a restrictive tendency on the part of the court, in the matter of memoranda as evidence. The court says: "There was error in admitting the exhibit as evidence, and the error cannot be regarded as a harmless one. The jury might and probably did consider the account, as it appeared on that exhibit, of the same value, as evidence, as they would any other account that Elijah Barber might have kept against the defend- ant; and their verdict, under the charge of the court, may have been predicated upon that evidence." Lapham v. Kelly, 35 Yt. 195; Cross v. Bartholomew, 42 Yt. 206; Godding v. Orcutt, 44 Yt. 54; Barber v. Bennett, 58 Yt. 476, 56 Am. Rep. 565. § 70. Recent Cases Examined. — It would contravene the most obvious principles of justice, were a party allowed to produce memorandum evidence without submitting it to the inspection of the opposite party. The law guards with exceptional caution every avenue that leads to forgery or imposition. Merrill v. Ithica & 0. B. Co. 10 Wend. 600, 30 Am. Dec. 130. A correla- tive right follows as of course to cross-examine with reference to the memoranda. The practitioner is referred for further elucidation upon this subject of inspection to a Yermont case, where the matter was a subject of a carefully prepared opinion which has been cited repeatedly with every symptom of approval. See State v. Bacon, 41 Yt. 526, 98 Am. Dec. 616. MEMORANDA IN EVIDENCE. 103 The court says: "An entry or memorandum made by the wit- ness himself, at or near the time of the transaction in question and before it has in any degree faded from his memory, which is full and complete, so as naturally to suggest and aid the mind in recalling what really transpired, is a strong ground of reliance and belief. It would, therefore, seem that it is a legitimate subject of inquiry and examination with reference to a witness referring to entries on the stand for the purpose of refreshing his recollec- tion, whether the memorandum thus used and referred to really does assist his memory or not. That must depend in some meas- ure upon its character, and that can be ascertained only by inspec- tion and cross-examination in respect to it, and when and by whom made, its appearance, genuineness, fullness and faithfulness. . . . 'It is always usual,' says Phillips (1 Phil. Ev. p. 289), 'and very reasonable, when a witness speaks from memoranda, that the counsel should have an opportunity of looking at them when he is cross-examining the witness;' and Starkie (1 Starkie, Ev. p. 179) asserts the same doctrine. He remarks: 'The wit- ness may be cross-examined as to other parts of the entry.' If the document be produced the opposite counsel is entitled to cross-examine from it. See also part 1, Cowen & Hill's notes (2d ed.) 757; Rex v. Ramsden, 2 Car. & P. 603. The view as pre- sented by these authorities is alone consistent with the party's right to cross-examine the witness upon whose credibility the question in issue somewhat depends, and which, it is said, consti- tutes a 'strong test, both of the ability and willingness of the wit- ness to declare the truth.' In no other way can his accuracy and recollection be ascertained and tested, which in all cases are proper matters of inquiry with a view to weighing his evidence, and the range of inquiry is open to this extent. And a witness cannot deprive a party of this right, or shield himself from the obligation of disclosing the whole truth to this end, or refuse the production and examination of a memorandum which is in court, and upon which he relies and to which he refers for the reason disclosed by this case; certainly not, unless it appears to the court that he had a reasonable ground of belief that he would subject himself to personal injury in consequence of producing and allowing an ex- amination of it." Mr. Justice Andrews, in Peck v. Valentine, 94 N". Y. 569, characterizes this right to inspect the document and cross-examine 104 LAW OF EVIDENCE IN CRIMINAL CASES. the witness as one of great importance, and a substantial safe- guard and protection against fabricated evidence. To the same effect are the following decisions: Peck v. Lake, 3 Lans. 136; Chute v. State, 19 Minn. 271; Duncan v. Seeley, 34 Mich. 369; Stanwood v. McLellan, 43 Me. 275; TiWdts v. Sternberg, QQ Barb. 201; McKivitt v. Cone, 30 Iowa, 455; Dugcm v. Mahoney, 11 Allen, 573; Costello v. Crowell, 133 Mass. 352; Adae v. Zangs, 41 Iowa, 536; Davis v. ^e/J, 56 Vt. 426; Burgess v. Bennett, 20 Week. Rep. 720. When a witness produces a memorandum, and testifies that he made it in the usual course of business, and that he knew at the time its contents were true, his testimony and the memorandum are both admissible as evidence; and if the person who made the memorandum or entries in books is dead, they are admissible as evidence on proof of his handwriting, and of the fact that they were made in the usual course of business, at or about the time of the transaction to which they relate. Hancock v. Kelly, 81 Ala. 368. A witness may be allowed to refresh his memory by referring to memoranda made by himself, relating to numbers, dates, sales and deliveries of goods, payments and receipts of money, accounts and the like, in respect to which no memory could be expected to be sufficiently retentive without depending upon memoranda. Wernwag v. Chicago & A. R. Co. 20 Mo. App. 473; Howards. McDonough, 77 K Y. 592. To render a memorandum admissible as evidence, the witness must be able to testify that he knew its contents when it was ' made and knew them to be true; it must have been made at or near the time of the occurrence or transaction to which it relates, and the original must be produced, or its absence accounted for. But a witness may refresh his memory by reference to a memo- randum made at or about the time of the occurence to which it relates, when he knows it to be correct, and after refreshing his memory, can testify from independent recollection; and he may use a copy which he knows to be correct without producing the original; in which case, the memorandum is not admissible as evi- dence unless called for by the adverse party, nor can a copy be used if the original is in court. Stoudenmire v. Harper, 81 Ala. 242. A witness will be permitted to refresh his memory by an exam- ination of the memoranda reasonably contemporaneous with the MEMORANDA IN EVIDENCE. 105 transaction to which they relate, regarding dates, figures, results of calculation and the like. Friendly v. Lee, 20 Or. 202. A witness may be permitted to refresh his memory by reference to bank book entries and by inspection of stubs of checks, where such entries were made by those having charge of the books, in the usual and ordinary course of the business in which the wit- ness was at the time engaged and with the conduct of which he was familiar, and were examined by him and found correct and were calculated only to render accurate and definite that which was otherwise in a manner shown to be true by his evidence. Third Nat. Bank v. Owen, 101 Mo. 558. A reporter for a commercial agency who visited a certain per- son for the purpose of getting a statement of his financial condi- tion and who has made a copy of his statement, may in testifying as to representations made by such person refresh his memory from the copy, but where he does not remember the figures given him by such person but only that he went to him and procured a statement he cannot read the copy in evidence. Caldwell v. Bowen, 80 Mich. 382. An almanac may be received in evidence, to refresh the mem- ory of the jury as to the time the moon rises or sets. Case v. Perew, 46 Hun, 57. If a witness swears that he made an entry or memorandum in accordance with the truth of the matter as he knew it to exist at the time of the occurrence, such entry or memorandum is admis- sible in evidence in confirmation of what the witness states from memory. Owens v. State, 07 Md. 307. A witness cannot refresh his memory from an affidavit previ- ously sworn to and subscribed by him ex parte, unless it be shown that the affidavit was written by him or under his direction at the time the facts occurred or immediately thereafter, or at some other time when the facts were fresh in his memory, and that he knew the same were correctly stated in his affidavit. Morris v. Lach- man, 68 Cal. 109. A witness may be permitted to refresh his memory from a writing or memorandum made by himself shortly after the occur- rence of the fact to which it relates; but it is only when the mem- ory needs assistance that resort may be had to these aids, and if the witness has an independent recollection of the fuels inquired ill »nut, there is no necessity nor propriety in his inspecting any writing or memorandum. Stale v. Baldwin, 36 Kan. '). 106 LAW OF EVIDENCE IN C1UMINAL CASES. The copy of a writing, as well as the original may be referred to by the witness, if his memory, refreshed thereby, enables him to testify of his own recollection of the original facts, independ- ent of his confidence in the accuracy of the copy. But he is not in such case to read from the copy. Bonnet v. Glattfeldt, 120 111. L66. A witness in fixing the date of a transaction may refer to a book or diary and the entries therein, but the book or diary may not be produced for the inspection of the jury. First Nat. Bank of Dubois v. First Nat. Bank of Williamsport, 114 Pa. 1. The supreme judicial court of Massachusetts in a well con- sidered case, held that a newspaper reporter who had made specific memoranda, of certain alleged facts, and had frequently woven the '■'> Ind. 354, 5 Am. Kep. 201; Adams v. Hannibal <& St. J. R. Co. 74 Mo. 556, and note, 41 Am. Eep. 333; Ifansas Pac. U. C<>. v. Pointer, 9 Kan. 630; Roherts v. Burks, Litt. Sel. Cas. Ill; Hawker v. Baltimore & O. R. Co. 15 W. Va. 636, 36 Am. Rep. V- _T>. See also ~i Rice, Civil Evidence, chap. 20. CHAPTER XI. PROOF OF HANDWRITING. ■§ 72. How and By Wliom Proved. 73. Ride as to Proof by Comparison in Different States. a. Rule in Vermont. b. Rule in Massachusetts. c. Rule in New York. d. Rule in Alabama, Ohio and South Carolina. 74. Miscellaneous Authorities Examined. 75. Views of Mr. Wills. § 72. How and By Whom Proved. — The law points out two modes of proving private writings, in order to enable the parties to use them as evidence. First, when a witness has seen letters or documents purporting to be in the handwriting of the party, and having afterward personally communicated with him respect- ing them, or acted upon them as his, the party having known and acquiesced in such acts, it is sufficient to enable the witness to give evidence in relation to the handwriting of the party to the instrument sought to be used in evidence. Woodford v. McClen- ■ahan, 9 111. 89. The other mode is, by a witness who has seen the party write, and if the witness has seen the party write but once, he is competent to prove the handwriting. 1 Greenl. Ev. § 577; Woodford v. McClenahan, supra. But the handwriting cannot be proved by comparing the paper in dispute with other papers acknowledged to be genuine, either by a witness, or by the court or jury. 1 Phil. Ev. 490; Jumpertz v. People, 21 111. 375; Kernin v. Hill, 37 111. 209; Mauri v. Heffeman, 13 Johns. 58; Titford v. Knott, 2 Johns. Cas. 211; Haines, Justices of Peace, p. 683. Substantially the same rule in statutory form finds appropriate expression in the following language: "The handwriting of a person may be proved by any one who believes it to be his, and who has seen him write, or has seen writings purporting to be his, upon which he has acted or been charged, and who has thus acquired knowledge of his handwrit- ing. Evidence respecting the handwriting may also be given by 109 110 LAW OF EVIDENCE IN CRIMINAL CASES. a comparison made by the witness or the jury, with writings- admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. "Where a writing is more than thirty years old, the comparisons may be made with writings purporting to be genuine, and generally respected and acted upon as such by persons hav- ing an interest in knowing the fact." Neal v. Neat, 58 Cal. 287; ( '. Views of Mr. Wills. — "Evidence of similitude of hand- writing by the comparison of controverted writing with the admitted or proved writing of the party, made by a witness who :■ seen the party write, nor lias any knowledge of his handwriting, and who arrives at the inference that it is his hand- writing because it is like some other which is so, is a mode of proof which has been much lauded by writers on the civil law, and i- commonly admitted in those countries whose jurisprudence is founded on that system; the comparison being made by pro- PKOOF OF II AND WHITING. 117 fessional experts appointed by the court or agreed upon by the parties, under many restrictions for securing the genuineness of the writings which are to form the standard of comparison. Comparison of handwriting appears also to be a recognized mode of proof in some of the American states, whose judicial systems are generally founded on our own. Such evidence is in general inad- missible in this country, though the leaning of text-writers of authority appears to have been rather in favor of the principle of its admissibility; the only admitted exceptions are where the writing acknowledged to be genuine is already in evidence in the cause, or the disputed writing is in ancient writing. In these excepted cases, the evidence is admitted, it is said, of necessity, in the former case because it is not possible to prevent the jury IV' m making such comparison, and therefore it is best, as was remarked by Lord Denman, for the court to enter with the jury into that inquiry, and do the best it can under ci renin stances which cannot be helped; in the latter, because from the lapse of time no living person can have any knowledge of the handwriting from his own observation, and because in ancient documents it often becomes a pure question of skill, the character of the handwriting varying with the age, and the discrimination of it being materially assisted by antiquarian researches." "Wills, Circ. Ev. pp. 132-131. For further review of this subject see 1 Rice, Civil Evidence, chap. 0. CHAPTEE XII. PAROL EVIDENCE. § 76. Its Extended Relations to Criminal Cases Illustrated. 77. Statutory Instances of Its Relevancy. 78. Must in all Instances be Direct. 79. Competent in Cases of Lost Instruments. % 76. Its Extended Relations to Criminal Cases Illustrated. — The extended treatment accorded this subject, of best, second- ary and parol evidence, in volume 1, of Rice on Civil Evidence, is sufficient warranty for the extreme brevity of the treatment here. A reduplication of the views there expressed, is quite impossible through considerations of space alone, and it is doubt- ful if the author could improve the exposition there given, within the same limits. As regards the topic of parol evidence, its obvious implications with nearly every caption of this volume, are sufficiently suggest- ive to prevent any attempt to minimize the subject by circum- scribing the statement of its applications to the few paragraphs that usually form the text of a chapter. Certainly, when we con- sider that parol or oral evidence is competent to prove any fact whatever (Stephen, Dig. Ev. § Gl) it would seem permissible under the peculiar circumstances of the case, to treat the tupic under the various sub-headings to which it naturally belongs, and to which the practitioner would naturally refer, rather than attempt the colligation of its myriad applications, for the purpose merely of scattering them again throughout the text of the entire volume. As illustrative of our position, parol evidence naturally associ- ates with (1) the examination of witnesses; (2) the impeachment of witnesses; (3) proof of handwriting; (4) relevancy; (5) res gestce; (6) expert and opinion evidence, and with defensive and inculpatory proof in all of its endless diversities. Its competency under nearly every branch of our subject is avowedly or by impli- cation admitted by jurists and textwriters indiscriminately and with the aid of an exceptional index the practitioner can readily US PAROL EVIDENCE. 119 turn to the minutest detail of the subject or to any sub-heading and find the affinities of this particular branch of the science, ■elaborated and explained. This will sufficiently account for the absence of an extended chapter dedicated to tlte needs of the subject. The treatment of parol evidence is synonymous with the treat- ment of criminal evidence. "Every fact except (speaking gen- erally) the contents of a document must be proved by oral evi- dence." Indeed a modern writer has recently placed before the profession a work of exceptional merit and rare discrimination, that vindicates the averments of the text. Professor Browne has given the elucidations of this subject in one of the most scholarly and comprehensive legal compositions that have solicited the fav- orable attention of the bench and bar for many years. I cordially recommend the attentive perusal of his work, as a complete vin- dication of the views of the present author. § 77. Statutory Instances of Its Relevancy. — Eeturning from this brief digression it may be expedient to illustrate the extreme breadth and ramification of this subject, by a transcript of section 1870, of the California Code of Civil Procedure. While it is not claimed that this statutory regulation has any extra-terri- torial effect, it is insisted that its wide acceptation as a correct expose of modern rules admitting this species of evidence, are but one of its many titles to recognition, while it may be profitably .added that it recently met with the cordial indorsement of the very able commission, appointed by the legislature of New York to draft and report a code of evidence, with a view to its ulti- mate enactment as statutory law. Any fragment or brochure in the form of a legal screed, that can meet with the critical approval of such eminent jurists as David Dudley Field, David L. Follett and William Rumsey, is liable to be as nearly perfect as the present writer has any expec- tation of making an independent statement of his own. This fact is certainly another title to recognition. The section in question relates to facts which may be proved in criminal prosecutions by parol evidence and are tabulated in the following form: 1. The precise fact in dispute; 2. The act, declaration, or omission of a party, as evidence against such party; 120 LAW OF EVIDENCE IN CRIMINAL CASES. 3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto; 4. The act or declaration, verbal or written, of a deceased per- son in respect to the relationship, birth, marriage or death of any person related by blood or marriage to such deceased person; the act or declaration of a deceased person done or made against his interest in respect to his real property; and also in criminal actions, the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death; 5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the part- nership or agency, and during its existence. The same rule applies to the act or declaration of joint owner, joint debtor, or other person jointly interested with the party; 6. After proof of a conspiracy, the act or declaration of a con- spirator against his co-conspirator, and relating to the conspiracy; 7. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission, is evidence, as part of the transaction; 8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter; 9. The opinion of a witness respecting the identity or handwrit- ing of a person, when he has the knowledge of a person or hand- writing; his opinion on a question of science, art, or trade, when he is skilled therein; 10. The opinion of a subscribing witness to a writing, the valid- ity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given; 11. Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty year.- old, and in cases of pedigree and boundary; 12. Osage to explain the true character of an act, contract, or instrument, where such character is not otherwise plain; but usage is never admissible, except as an instrument of interpreta- tion: {'■). Monuments an. 1 inscriptions in public places, as evidence of common reputation; and entries in family Bibles, or other fam- PAROL EVIDENCE. 121 ily books or charts; engravings on rings, family portraits, and the like, as evidence of pedigree; 14. The contents of a writing, when oral evidence thereof is admissible; 15. Any other facts from which the facts are presumed or logically inferable; 1/, stce;" that is, that the declarations of the individual made at the moment of a particular occurrence, when the circumstances are such that we may assume that his mind is controlled by the event, may be received in evidence, because they are supposed to be expressions involuntarily forced out of him by the particular event, and thus have an element of truthfulness which they might otherwise not have. To make declarations on this ground admis- sible, they must have not been mere narratives of past occurrences, but must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the acts they were intended to explain; and to s>» harmonize with them as to constitute a single transaction. The general rule is that declarations, to become a part of the res gestw, must accompany the act which they are supposed to characterize, and must so harmonize as to be obviously one trans- action. See Hanover R. Co. v. Coyle, 55 Pa. 396; Lund v. Tyngsborough, 9 Cush. 36; Com. v. LTaekett, 2 Allen, 130. In the case last cited a witness testified that, at the moment the fata! stabs were given, lie heard the victim cry out " I am stabbed," 122 KES GESTAE. 123 and he at once went to him and reached him within twenty seconds after that, and then heard him say, "I am stabbed; I am gone; Dan Hackett has stabbed me." This evidence was held competent as part of the res gestae. Bigelow, Ch. J., speaking of this evidence, said : " If it was a narrative statement, wholly un- connected with any transaction or principal fact, it would be clearly inadmissible. But such was not its character. It was uttered immediately after the alleged homicidal act, in the hear- ing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him after so brief an interval of time that the declarations or exclamations of the deceased may fairly be deemed a part of the same sentence as that which followed instantly, after the stab with the knife had been inflicted. It was not, therefore, an abstract or narrative statement of a past occurrence, depending for its force and effeet solely on the credit of the deceased, un- supported by any principal fact, and receiving no credit or significance from the accompanying circumstances. But it was an exclamation or statement contemporary with the same transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gestae." The learned judge also said that the rule which renders res gestce competent has been often loosely administered by courts of justice so as to admit evi- dence of a dangerous and doubtful character; and that the tend- ency of recent decisions has been to restrict within the most narrow limits this species of testimony; and that that court was disposed to apply the rule strictly, and to exclude everything which did nut clearly come within its just and proper limitations. It may therefore be laid down as the established doctrine that, as to all facts in evidence properly constituting part of the res gestae, they are to be considered by the jury, in passing upon the question of guilt or innocence, whether introduced by the prose- cutor or the defendant. Hill v. People, 1 Colo. 452; State v. Porter, 3-1 Iowa, 140; Roscoe, Crim. Ev. (7th ed.) 135. In" Maker v. People, 10 Mich. 217, 81 Am. Dec. 7S1, it is held that in criminal prosecutions the whole of the res gestae, should be before the jury, so as to show the real nature, state of mini], and intention with which the act was done; that the object of the trial should bo to show the real nature of the whole transaction, whether its tendency bo to establish guilt or innocence. It is there 124 LAW OF EVIDENCE IN CRIMINAL CASES." suggested that any inference drawn from $ detached portion of an entire transaction may be entirely false. In Wellar v. People^ 30 Mich. 20, the court held it to be the duty of the prosecutor in cases of homicide to call those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, unless, possibly, where too numerous. In Hard v. People, 25 Mich. 406, attention was called to a fact often over- looked by courts as well as prosecuting officers, that "a public prosecutor is not a plaintiff's attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty, and he has no right to suppress testimony." Kent v. People, 8 Colo. 563. Evidence of exclamations, groans and screams is now permitted more upon the ground that it is a better and clearer and more vigorous description of the then existing physical condition of the part}* by an eye-witness than could be given in any other way. It characterizes and explains such condition. True such condi- tion might be simulated, but this possibility is not strong enough to outweigh the propriety of permitting such evidence as fair,. natural and original and corroborative evidence of the plaintiff, as to his then physical condition. Its weight and propriety are not therefore now sustained upon the old idea of the necessity of the case. But evidence of simple declarations of a party made -nine time after the injury and not to a physician for the purpose of being attended to professionally, and simply making the state- ment that he or she is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration and of a most dangerous tendency while the former necessity for its admission has wholly ceased. As is said by Judge Allen in Reed v. New York, Gent. It. Co. 45 X. i. 575, the necessity for giving such declarations in evi- dence where the party is living and can be sworn no longer exist- ing, and that being the reason for its admission, the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously, should also cease. With the rules as herein announced there can be no fear of a dearth of evidence as to the extent of the injury and the suffering caused thereby. The party can him- self be a witness if living, and if dead, the suffering is of no mo- ment, and the exclamations of pain, the groans, the signs, the screams can still be admitted. Lut we are quite clear that the KES GEST.E. 125 bald statement made long after the injury by the party that he suffers from pain ought not to be admitted as in any degree cor- roborative of his testimony as to the extent of his pain. Roche v. Brooklyn C. & X. R. Co. 105 X. Y. 294, 59 Am. Rep. 506. a. Difficulty in Determining what is. — It is not easy always to determine when declarations may be received as part of the res gestm, and the cases upon this subject in this country and in England are not always in harmony. The cases of Com. v. Mc- PiJce, 3 Cush. 181, 1 Am. Eep. 727, and Travelers Ins. Co. of Chicago v. Mosley, 75 U. S. 8 Wall. 397, 19 L. ed. 437, are ex- treme cases upon one side, and would justify the reception of the declarations in the last paragraph. The case of Reg. v. Beding- field, 14 Cox, C. C. 341, is an extreme case upon the other side, and goes much further than would be needed to justify the exclu- sion of these declarations. That case was decided by Lord Chief Jwstict Cockburn, after consulting with Field and Manisty, JJ., and aroused much discussion and criticism in England. Beding- fteld's Case, 14 Am. L. Rev. 817, 15 Am. L. Rev. 71. The rule as to res gestcs laid down in Com. v. McPike, supra, has since been limited, and very properly applied in other cases. b. Views of Mr. Rapalje. — When it becomes necessary to inquire into the nature of a particular act,, or the intention of the person who did it, proof of what he said at the time is admissible for the purpose of showing the true character of the act; but to render such declaration competent, the act with which it is connected should be pertinent to the issue; for when the act is per se incompetent, the union of the two will not render the dec- laration admissible. Brumley v. State, 21 Tex. App. '222. 57 Am. Rep. 012; State v. Belcher, 13 S. C. 459; State v. Horton, 33 La. Ann. 289; Lander v. People, 104 111. 248; Hunter v. State, 40 X. J. L. 405; Mack v. State, 48 Wis. 271. The true test of the ad- missibility of such testimony is, that the act. declaration or excla- mation must be so intimately interwoven with the principal fact or event which it characterizes, as to be regarded a part of the transaction itself, and also to clearly negative any premeditation or jjurpose to manufacture testimony. Land< r v. J'< opl< . supra; Foster v. State, S Tex. App. 24S; Rapalje, Crim. Proc. 243. c. The (general Rule. — The general rule as to res gesta is that all declarations made at the same time the main fact under consideration takes place, and which are so connected with it as 126 LAW OF EVIDENCE IN CRIMINAL CASES. to illustrate its character, are admissible as original evidence,, being- what is termed a part of the res gestae, in other words, a part of the thing done. The cries of the bystanders while the thing is being done are original, and not hearsay evidence, because they arc part of the res gestae, but a defendant may not manufact- ure evidence for himself, either before or after or in the moment of The assault, and claim its admission under this head, and in no- just sense can words spoken several moments before or after the event be considered a part of the thing done. Territory v. Yar- lerry, 2 New Mex. 391. The res gesfae consists of two parts, — the accompanying acts and the declarations attending them. The rule is, as we have seen, that the whole transaction may be given in evidence. But it is impossible to deduce, from the authorities, an available rule as to what shall be deemed of the transaction, and what shall not. The subsidiary act need not transpire at the same instant with the main one, or always even on the same day; and, in rea- son, as well as in accordance with the current of the authorities, the time which divides the two is not the controlling considera- tion, though it may be taken into the account. Is it presumable that, distinctly and palpably, it influenced or was influenced by the main act, or proceeded from the same motive? If so, it is admissible, otherwise not. Such is the doctrine in reason; and, it is submitted, the current of authority is, at least, not adverse. Bishop, Crim. Proc. § 10S5. §81. What Evidence is Competent in Proof of. — When a declaration, act or omission forms part of a transaction which is a. fact in issue relevant to the issue, such declaration, actor omission is relevant if it tends to explain or to show the purpose or char- acter of the transaction. This is equivalent to holding that evi- dence of occurrences at or about the time the crime is committed, is admissible as part of the res gestcB. Com. v. liar 'wood, 4 Gray, ■11. 64 Am. Dec. 41); Sehneck&r v. People, 88 K Y. 102; 3 Rus- sell, Crimes (9th ed.) 288; Coleman v. People, 5S N. Y. 555,. affirming 1 Hun, 396; Pontius v. People, 21 Hun, 328, affirmed : X. Y. 339; Hope v. People, 83 K Y. 418; Skipply v. Peo- . 36 X. Y. 375; Walters v. People, Park. Crim. Bop. 15; /<'../■ v. Ellis, 6 Barn. & C. 115; 2 Russell, Crimes, 287, 288; 2 by, Crim. Law, 192; Jordan v. State, 22 Ga. 545. The rule of the res gestae admits declarations made under the RES GESTAE. 127 impulse of the occasion, though somewhat separated in time and place, if so woven into it by the circumstances as to receive credit from it. Abbott, Trial Brief, § 628. So what a by-stander says during an occurrence, and in the presence of the actors, is compe- tent as part of the res gestae. Baker v. Gaicsin, 76 Ind. 317;. Wood v. State, 92 Ind. 269. It must certainly be regarded that, in criminal trials, the conduct of the accused at or about the time the offense is alleged to have been committed, and at or about the time of the arrest, may go in evidence to the jury as one means of establishing the fact and extent of the defendant's guilt. This species of evidence has been so often received that we will not undertake to cite the numerous authorities. See Johnson v. State,- 17 Ala. 624; Martin v. State, 28 Ala. 81. a. The Rule in RoSCOe. — It is said in Eoscoe's Criminal. Evidence, p. 115, that "not unfrequentlya presumption is formed from circumstances which would not have existed as a ground of crimination but for the accusation itself; such are the conduct,, demeanor, and expressions of a suspected person when scrutinized by those who suspect him." While this is an authority enjoining on courts and jury the duty of exercising great caution in receiv- ing and weighing such evidence, it is nevertheless a direct author- ity for receiving evidence of the conduct, demeanor and expres- sions of the accused. Lilts v. Stats, 30 Ala. 24. The true rule is, that all acts and facts upon which any reason- able presumption of the truth or falsity of the issue can be founded, may be given in evidence; but such acts or facts must precede or be part of the res gestae, and, unless as confessions or given for the purpose of explanation or qualification, the subsequent acts and statements of the party are never admissible. The acts and declarations of the prisoner given in evidence in his favor ought to be connected, both in point of subject-matter and of time, with the acts or declarations proved against him. Roscoe, Crim. Ev. 88; DiUin v. People, 8 Mich. 357. What is said and done by persons during the time they arc en- gaged in a riot constitutes the res gestae, and it is, of course, com- petent to prove all that is said and done. If the violenl 0] disorderly conduct of the rioters results in injury to property, and the act causing the injury is committed during the riot, the state may prove the act which caused the injury. This evidence is not admitted for the purpose of establishing another offense, but be- L28 LAW OF EVIDENCE IN CRIMINAL CASES. cause it is a part of the occurrence which constitutes the riot and tends to show that the conduct of the defendant was riotous and violent. Gallaher v. State, 101 Ind. 411. § 82. Perplexing Nature of the Proof of. — In a recent New Jersey case, Chief Justice Beasley, in referring to this sub- ject, says: "I think I may safely say that there are few problems involved in the law of evidence more unsolved than what things are to be embraced in those occurrences that are designated in the law as the res gestae. The adjudications on the subject, more especially those in this country, are perplexingly variant and dis- cordant. I can readily find judicial rulings by force of which this testimony would be excluded; but I can as readily find other rulings of equal weight, that would sanction its admission. This result has grown out of the difficulty of applying, with anything like precision, general rules to a class of cases of infinite variety. In the well considered case of Lund v. Tyngshorough, 9 Cush. 12, it is said: ' The res gestae are different in different cases, and it is, perhaps, not possible to frame any definition which would embrace all the various cases which may arise in practice. It is for the judicial mind to determine upon such principles and tests as are established by the law of evidence, what facts and circum- stances in particular cases come within the import of the terms. In some instances, the test indicated will be found in the rule that such declarations are admissible, because they are so connected with an act, itself admissible as part of the res gestae, as to have become incorporated with it. The declaration and the act must make up one transaction. The theory justifying this course is that, when such declarations are thus coupled with a probable act they receive confirmation from it; but if they stand alone, with- out such support, they depend altogether for their credence on the veracity of the utterer, and thus conditioned, they are pure hearsay, and inadmissible.' Alluding to the rule that excludes hearsay, Mr. Starkie, 1 Stark. Ev. p. 65, says: 'The principle d< >es n< >t extend to the exclusion of any of what may be termed real or natural facts and circumstance in any way connected with the transaction, and from which any inference as to the truth of the disputed fact can reasonably be made.'" Hunter v. State, 40 N. J. L. 41*5. § 83. Three Leading Cases Examined, a. A Pennsylvania Case. — A recent Pennsylvania case which KES GESTiE. 129 came before the supreme court on appeal will best illustrate the present attitude of the American judiciary upon this Very impor- tant phase of evidentiary law. The extract which is here repro- duced will disclose its relations with our subject and sustain the positions of the text. The court says : "The principal witness for the commonwealth testified to the prisoner's participation in the homicide, and the circumstances connected therewith. Among other things, she stated that imme- diately after the murder was committed and the money divided, one of the parties concerned therein scraped some of the blood from the floor into a piece of red earthen crock, emptied it at the east end of the house, so that the people would think the Kintz- lers were killed outside and would not look for their remains in the house, and then threw the crock over the top of the appletree into the adjoining woods. It was proved by several witnesses that blood was found next morning where Mary Hartley said it had been emptied, and, in further corroboration of her testimony, the witness was permitted to testify, under exception, that in August, 1880, he, in company with other persons, made search in the edge of the woods, where Mary Hartley said the piece of crock was thrown, and there, among the leaves and stones, found several pieces; in the language of the witness, 'quite a number among the rotten leaves and dirt. There are small roots grown over parts of the pieces, wire roots.' He also testified that he tried some of the pieces, and they fitted together, thus indicating that they were parts of a larger piece, corresponding in kind with that alleged to have been thrown away on the night of the mur- der. This may appear to be a trilling circumstance, but in view of the fact that throughout the trial, the credibility of Mary Hartley was assailed as unworthy of belief, on the ground that, according to her own showing, she was an accomplice, it was not improper to corroborate her statement as to the res gestce. She had been corroborated as to other circumstances, but it was urged, as a special objection to the admission of the testimony complained of, that so long a time had elapsed before the pieces of crock were found. In reply to this, the learned judge properly remarked that he could not say, 'as matter of law, that it was too remote to be received in evidence.' The fact that the place where the pieces of crock were found was secluded, lessened the probability ■of their having been placed there by any other agency than that 9 130 LAW OF EVIDENCE IN CRIMINAL CASES. testified to by Mary Hartley; and the f urther fact that they were' covered with leaf mould, and wire roots had grown over them, indicated that they had probably lain there from the time the murder was committed. In connection with other facts and cir- cumstances in the case, we cannot say it was improper to receive and submit the testimony to the jury. As corroborative evidence, it may have been very slight, but still it was not incompetent." Moyer v. Com. 98 Pa. 338. b. A Michigan Case. — The prosecution can never, in a crim- inal case, properly claim a conviction upon evidence which, expressly or by implication, shows but a part of the res gestce, or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. This would be to deprive the defend- ant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. It is the res- gestce, or whole transaction, the burden of proving which rests upon the prosecution, so far at least as the evidence is attainable. It is that which constitutes the prosecutor's case, and as to which the defendant has the right of cross-examination; it is that, which the jury are entitled to have before them, and, "until this is shown, it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn." The prosecutor in a criminal case, is not at liberty, like a plain- tiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then, to put the defend- ant to the proof of the other part, so long as it appears at all probable from the evidence, that there may be any other part of the transaction undisclosed, especially if it appears to the court that the evidence of the other portion is attainable. The only legitimate object of the prosecution is, "to show the whole trans- action, as it was, whether its tendency be to establish guilt or innocence." The prosecuting officer represents the public inter- est, which can never be promoted by the conviction of the inno- cent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional Buccess. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, vet, justice so attained is unjust and dangerous to the whole com- munity. And, according to the well established rules of the KES GESTAE. 131 English courts, all the witnesses present at the transaction, should be called by the prosecution, before the prisoner is put to his defense, if such witnesses be present, or clearly attainable. See Maker v. People, 10 Mich. 225, 81 Am. Dec. 781. The English rule goes so far as to require the prosecutor to produce all present at the transaction, though they may be the near relatives of the prisoner. See Reg. v. Chapman., 8 Car. & P. 559; Reg. v. Orchard, 8 Car. & P. 565, note; Roscoe, Crim. Ev. 161. Doubt- less, where the number present has been very great, the produc- tion of a part of them might be dispensed with, after so many had been sworn as to lead to the inference that the rest would be merely cumulative, and where there is no ground to suspect an intent to conceal a part of the transaction. c. A New York Case. — In a recent criminal case decided by the New York court of appeals, the late Chief Justice Folger, writing for affirmance and voicing the prevailing opinion of that distinguished court, took occasion to commit the appellate bench to some very radical conclusions upon this subject of res gestae. The case arose under an indictment for grand larceny, and the defendant in error offered to prove what was said as to the mode of obtaining the property, by the men of whom he alleged that he had bought it at the time of the alleged purchase. His honor says: "It was doubtless hearsay, and was not competent testimony to prove that the alleged vendors came by the property in the mode asserted. But as it was competent for the defendant to prove the acts by which the goods came into his possession, if he was able to, it was competent to prove all pertinent sayings and doings that then were made and done, as relevant upon the issue of guilty knoAvledge. It was competent. It was for the jury still to say whether it was of weight in showing the prisoner innocent in the transaction, if they found that the transaction took place as he testified. Rex v. Whitehead, 1 Car. & P. 67; Powell v. Harper, 5 Car. & P. 590; Hay slip v. Gymer, 1 Ad. & El. 162. The cases to the contrary, cited from 3 Park. Crim. Pep., People v. Ran do. p. 335, and Wills v. People, p. 473, were doubtingly decided. On principle, such evidence must be competent. It is the rule, generally speaking, that declarations accompanying acts are admissible in evidence as showing the nature, character and object of such acts. 1 Stark. Ev. 51, S7. The direct proof of 132 LAW OF EVIDENCE IN CRIMINAL CASES. knowledge of the larceny, is not needed to convict of receiving stolen goods with guilty knowledge. That knowledge may be gathered from the circumstances of the case, of which one is the buying the goods at an under valuation. 1 Halstead, Dig. Ev. 619; 2 East, P. C. chap. 16, p. 765, § 153. If the circumstances of the case and such buying are proof tending to show guilty knowledge, then whatever that is relevant, that was said at the time of the buying, is a part of the res gestae, and competent to explain the act. And see Reg. v. Wood, 1 Fost. & F. 497; 1 Phil. Ev. (7th ed.) 231. Of course, the jury are not bound to believe cither that the statements, if made, were true, or that the prisoner believed them to be true and was moved by them, or that they were in fact made to him. Like all other testimony, it is to be given to them for what it is worth, and it is for them to give to it the value it deserves. People v. Bowling, 81 N. Y. 478. The defendant is entitled to the admission of evidence of a con- versation tending to exculpate him and forming part of the res gestae. People v. DeGraff, 6 K Y. S. K. 412. " The rules expressive of the prevailing views upon this subject of res gestce, are fully stated in 1 Rice, Civil Evidence, section 212. chapter 10, p. 375. If desirable to pursue the topic in detail, the practitioner is referred to that part of this under- taking. CHAPTER XIV. HEARSAY EVIDENCE. § 84. Rule in Civil Cases Applied. 85. General Rule Excluding. 86. Exceptions Noted by a Prominent Text Writer. 87. When the Ride in Civil Cases does not Apply. 88. The Rule from Roscoe, The subject of hearsay evidence will be accorded very meagre treatment in this immediate connection. The thoroughness with which the entire topic was canvassed in chapter 10 of volume 1 of Evidence in Civil Cases obviates all necessity for further notice. Nothing can be added to the exposition already given, and considerations of space alone will preclude any attempt at a duplication of the views previously expressed, through nearly 70 pages of the chapter referred to. § 84. Rule in Civil Cases Applied.— The same exclusionary rules which are observed in civil cases relative to the introduction of this peculiar grade of evidence, obtain with equal force in criminal cases: and the same exception which public policy and the obvious demands of justice have engrafted upon these exclu- sionary rules by which hearsay evidence is, under proper condi- tions, admissible, obtains equally in criminal as in civil cases. No legal pr< (position that we can state has received more extensive endorsement than that which accords to the rule of evidence the same force and pertinency in criminal as in civil cases. Clearly, if the object of all evidence is the ascertainment and development of truth, the regulations and formulas which are supposed to assist in its development should not be placed in a condition of estrangement merely because the fact to be developed arises in different forms of action. -•">. Geiieral Rule Excluding. — Hearsay evidence is inad- missible, to establish any specific fact capable of direct proof by witnesses, speaking from their own knowledge, and when the rule is relaxed, it is from necessity alone. Ovt rstre< 1 v. Sf.it, , :; ! [ow. (Miss.) 328; Wooster v. State, 55 Ala. 221. 133 134 LAW OF EVIDENCE IN CRIMINAL CASES. After such an inveterate and universal acceptance of a rule acknowledged to be of great practical importance and frequent application, it must be considered that the time has passed for testing its correctness by the criterion of speculation. If such a rule of evidence, after so conspicious and protracted an existence, is to be pushed aside, or even is to be considered as liable to challenge on theoretic grounds, it is difficult to divine upon what stable basis the administration of the law is to be conducted. Graves v. State, 45 N. J. L. 203. There is no rule in the law of evidence more important or more frequently applied than the general one, that hearsay evidence of a fact is not admissible. If any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth; and the reason of the rule is, that evidence ought to be given under the sanction of an oath, and the person who is to be affected by the evidence may have an opportunity of interrogating the witness as to his means of knowl- edge, and concerning all the particulars of his statement. There are, however, certain instances where hearsay evidence is admis- sible, because either the objection does not apply, or from the necessity of the case the rule is relaxed. When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, it is then admissible; for to exclude it might be to exclude the only evidence of which the nature of the case is capal >le. And, generally speaking, declarations accompany- ing acts are admissible in evidence as showing the nature, char- acter, and objects of such acts. 2 Russell, Crimes, § 3. In 2 Best, Ev. § 506, under the head of " Res inter alios acta," it is said : " No person is to be affected by the words or acts of others, unless he is connected with them, either personally or by those whom he represents, or by whom he is represented." State v. Beaudet, 53 Conn. 536, 55 Am. Rep. 155. § 86. Exceptions Noted by a Prominent Text Writer.— Hearsay (derivative, or secondhand, as opposed to secondary) evidence is that which is learnt from some one else, whether by word of mouth or otherwise; in other words, it is anything which does not derive its value solely from the credit given to the wit- ness himself, but which rests also, in part on the veracity and competence of some other person. HEAKSAY EVIDENCE. 135 Harris well known Treatise on Criminal Law tabulates ei°-ht ■exceptions to the rule rejecting hearsay evidence. The reasons usually assigned for the rejection of hearsay evi- dence are two: (a) that the original statement or writing was not made an oath; (b) that the party affected has not the oppor- tunity of cross-examining the originator of it. Its reception would also have the effect of lengthening the proceedings, with- out any corresponding advantage. "We have seen that secondary evidence can be given only where there has been an explanation of the absence of the best evidence; secondhand evidence cannot be given at all, subject to the following exceptions : 1. To prove the death of a person beyond the sea. 2. To prove a prescription, a custom, matters of pedigree, repu- tation on questions of public or general right. 3. "When the hearsay is what the witness has been heard to say at another time, in order to invalidate or confirm his testimony given in court. [This is not hearsay. The evidence is direct and primary that the witness made a certain statement; there is no evidence, in such case, either direct or hearsay, as to the truth of the matter contained in the statement.] 4. Declarations made by persons under the sensible conviction of their impending death. Such declarations are admitted only when the death of the deceased is the subject of the charge (that is, in cases of murder or manslaughter) and only if the declara- tion refers to the injury which is the cause of death. 5. Statements made by deceased persons, if against their inter- est, or entries made by them in the regular course of their duty or employment. 6. "When the bodily or mental feelings of a person are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible as original evidence; for example, what was said to a surgeon immediately after an assault. 7. When the sayings, etc., of another are part of the res gestae, that is, of the general transaction, and are not merely a medium of proof of another fact. Thus the cries of a person being stabbed, in a mob, are good evidence. In fact, these are not strictly instances of hearsay evidence at all, but the original proofs of what took place. 8. Evidence, in the second trial, of testimony given by a wit- ness now deceased, at a former trial of the same case between the eaiue parties.. 136 LAW OF EVIDENCE IN CRIMINAL CASES. It will be convenient here to notice the rule that if a witness is dead, or too ill to travel (or kept out of the way, as against the person so keeping him out) his depositions may be read provided that such depositions wore taken in the presence of the accused,, and that he had an opportunity of cross-examining the witness. Harris, Crim. Law, p. 371. To this category should be added the familiar clause : " The acts or declarations of a deceased person with respect to tlie' relationship, birth, marriage or death of any person related by blood or marriage to a deceased person is relevant when such act or declaration occurred before the question had arisen in respect to which it is to be proved, and the fact to be proved by it is a fact in issue." See Kice, Civil Evidence, chap. 10. § 87. When the Rule in Civil Cases does not Apply. — Another objection to the rule rejecting hearsay evidence arises in civil cases when the declaration proved is adverse to the interests of the party making it; and it further appears that the declarant is dead or beyond the jurisdiction. But the utmost industry fails to disclose a solitary instance in criminal prosecutions where this rule has been accorded the least consideration. This subject was recently under careful examination in the United States district court, and the conclusion reached furnishes sufficient authority for the foregoing text. See United States v. Mulholland, 50 Fed. Rep. 113. See also Snow v. State, 58 Ala. 375; Daniel v. State, 65 Ga. 200; Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636; CooTcham v. State, 5 W. Va. 510; Bowen v. State, 3 Tex. App. 623; Peck v. State, SG Tenn. 2G7; State v. White, 68 X. C. L58. An illustration is afforded of the doctrine under review in all where, as a part of the exculpatory evidence, it is sought to prove admissions made by absent parties tending to show that tiny themselves were guilty of the crime and not the person on trial. Such testimony in criminal cases is unquestionably incom- petent. ; 88. The Rule from Roscoe. — Evidence of facts with which the witness is not acquainted of his own knowledge, but which he merely states from the relation of others, is inadmissible upon two grounds. First, that the party originally stating the facts does not make the statement under the sanction of an oath; and sec- ondly, that the party against whom the evidence is offered would HEARSAY EVIDENCE. 137 lose the opportunity of examining into tlie means of knowledge of the party making the statement. A less ambiguous term by which to describe this species of evidence is secondhand evidence. The term hearsay evidence is often applied to that which is really not so in the sense in which the term is generally used. Thus, where the inquiry is into the nature and character of a certain trans- action, not only what was done, but also what was said by those present during the continuance of the transaction, is admissible; and this is sometimes represented as an exception to the rule which excludes hearsay evidence. But this is not hearsay evi- dence; it is original evidence of the most important and unexcep- tionable kind. In this case, it is not a secondhand relation of facts which is received, but the declarations of the parties of the facts themselves, or of others connected with them in the transac- tion, which are admitted for the purpose of illustrating its peculiar character and circumstances. 1 Roscoe, Crim. Ev. p. 25. Hearsay evidence is not admissible merely because in the par- ticular case no better can be had. State v. Dart, 1 Cow. Crim. Rep. 49. But in cases of pedigree or of death it is admissible when from great lapse of time, or for other sufficient cause, the law presumes that original or direct evidence is not attainable. 2 Phil. Ev. (4th Am. ed.) 238; 1 Phil. Ev. (4th Am. ed.)194, 197: Cowen & Hill, Notes, 012; Higman v. Ridgway, In East, 120, 129; Jackson v. Brovmer, 18 Johns. 39;Zeggett v. Boyd, 3 Wend. 379; CaujoUe v. Ferrie, 26 Barb. 177; Stein v. Bowman, 38 U. S. 13 Pet. 220, 10 L. ed. 134; Mima Queen v. Hepburn, 11 U. S. 7 Cranch, 290, 3 L. ed. 318; Jackson v. Etz, 5 Cow. 319; Fos- gatt v.Herkimer Mfg. & H. Co. 12 Barb. 352; Augustus v. Graves, 9 Barb. 590. Extreme thoroughness has characterized the preceding treat- ment of this subject and the practitioner is referred to 1 Rice, ( livil Evidence, chap. 10, for further views respecting it. CHAPTEE XV. QUESTIONS OF LAW AND FACT. § 89. Preliminary View. 90. Tlie Jury as Judges of the Law and the Fact. 91. Decisions Considered. 92. Plea of not Guilty Raises a Question of Fact. 93. Evidence of Habit is a Question of Fact. 94. The Result Stated. § SO. Preliminary Tiew. — We consider it a well settled prin- ciple and rule, lying at the foundation of jury trial, admitted and recognized ever since this system was adopted as an established and settled mode of proceeding in courts of justice, that it is the proper province and duty of judges to consider and decide all questions of law which arise, and that the responsibility of a cor- rect decision is placed finally on them; that it is the proper prov- ince of the jury to weigh and consider evidence, and decide all questions of fact, and that the responsibility of a correct decision in the first instance is placed upon them. The safety, efficacy and purity of jury trial obviously depends upon the steady main- tenance and practical application of this principle. It would be alike a usurpation of authority and violation of duty, for a court, on a jury trial, to decide authoritatively on the questions of fact and for the jury to decide ultimately and authoritatively upon the questions of law. In deciding upon this question of fact however, the jury are at liberty to consider that in the vast majority of cases (except as otherwise provided by statute) the evidence of one witness who is entitled to credit is sufficient to prove any fact. If the jury are the sole judges of the law without any aid from the court in its exposition and application, then whenever the court instructs either for the prosecution or the accused, it invades the province of the jury. Whilst accused insists that the province of the jury is invaded, he would not hesitate to demand a new trial if the jury had found against the law as given to them by the court. Hence, he would, in such case, appeal from the jury to the court, upon the grounds that the court ultimately, and not the 138 QUESTIONS OF LAW AND FACT. 139 jury, has the right to reverse the decision of the jury as to the law of the case, and because the court has the right to inform the jury as to the law and to enforce its decisions when disregarded, and against the accused, in criminal cases, as well as in civil cases. "It is not unreasonable to require the jury to say they know the law better than the court before they disregard its instructions. See Schnier v. People, 23 111. 17; Fisher v. People, 23 111. 283, and Mullinix v. People, 76 111. 211, where this form of instruc- tion is approved and sanctioned." Anderson v. State, 101 Ind. 467, 5 Am. Crim. Kep. 601, note. § 90. The Jury as Judges of the Law and the Fact. — The principle receives sturdy support in numerous cases that "in all criminal prosecutions, the jury must have the right to deter- mine the law and the facts." In the case of Barker v. State, 48 Ind. 163, Buskirk, ,/., who wrote the opinion, quoted from Graham & Waterman on New Trials, with approval, the following: '"When there is testimony which has any legal effect in a cause, it would be error in the court to determine the weight of it, and the fact which it did or did not ascertain. But whether evidence tends to prove anything pertinent to the issue, is a question for the court; and if there be no testimony that ought to have any legal effect, it is not error for the court to inform the jury that it does not prove what it does not tend to prove." In the case of Brooks v. State, 90 Ind. 428, the court, in com- menting upon the instructions in that case, said : "Under our system of practice, the court may sum up the evidence and submit hypothetical cases to the jury, but to do either of those things thoroughly and well usually requires very great care. It is a hazardous proceeding for the court, either directly or through the medium of hypothetical cases, to attempt any comments upon the evidence, and particularly to express any opinion upon it beyond an intimation or statement as to what certain evidence may tend to prove. The safer way is for the court to announce general principles applicable to the salient points of the evidence, and leave all inferences from facts apparently proven, or which the evidence tended to establish, to the jury." The provision that the jury shall have the right to determine the law and the facts evidently means that the jury have the right to determine all questions of law applicable to such matters as 110 LAW OF EVIDENCE IN CEIMINAL CASES. they are required to consider in making up their verdict, but can- not be rightfully construed to mean that the jury are the sole judges of i he law in every respect in a criminal cause. The court judges of the sufficiency of an indictment under the law. It de- cides all questions of law arising upon the admissibility of evi- dence, and has the power to grant a new trial when the jury have erroneously determined the law injuriously to the defendant. The judge, too, is required to instruct the jury upon all matters of law necessary for their information in the rendition of a ver- dict in a criminal cause. Thus, instructing the jury involves, in a qualified sense, at least, the exercise of a judgment upon all matters of law concerning which the judge must give information to the jury. The jury are, consequently, not, strictly speaking, the sole judges of the law in all its relations to a criminal case. Anderson v. State, 10-1 Ind. 467. § 91. Decisions Considered. — All the authorities tend to the same result. "It is the duty of the jury to act upon the facts. It is the duty of the court to decide the law. The facts being specially found by the jury, it is the duty of the court, not of the jury, to pronounce the judgment of guilty or not guilty. The facts being fully conceded, it is the duty of the court to announce and direct what the verdict shall be, whether guilty or not guilty. Therefore, I cannot doubt the power and the duty of the court to direct a verdict of guilty, whenever the facts constituting guilt are undisputed." United States v. Anthony, 11 Blatchf. 200, opinion by Hunt, J. In the case of People v. Bennett, 19 N. Y. 137, the court of appeals of the state of New York, through its Chief Judge,, uses the following language: "Contrary to an opinion formerly prevailing, it has been settled that the juries are not judges of the law, as well as the facts, in criminal cases, but that they must take the law from the court. All questions of law arising during the trial are to be determined by the court, and it is the duty of the jury to regard and abide by such determination." In ( nit( d States v. Anthony, supra, the question was, whether the court had power to direct a verdict of not guilty; and the Chief Justice says, the rule results from the principle that the jury must take the law from the court. The duty of the jury to take the law from this source is precisely the same whether it is favorable or unfavorable to the accused. As illustrative of another phase of the same subject, it is com- QUESTIONS OF LAW AND FACT. 141 petent to refer to the familiar rule that it is not the province of the court to instruct the jury that insanity is a physical disease. It is a quest-ion of fact, to be determined from the evidence, . whether insanity exists, and what its character and extent is; and not one to he determined as a matter of law by the court. Grubb v. State, 117 Ind. 277. The province of the court is to state the general rules of law to the jury, and it has no right to charge, as matter of law, that insanity is a physical disease of any particular organ of the body. It is not safe to take from works upon medi- cal jurisprudence definitions of insanity, for they are, in many instances, merely speculative opinions, and they are also opinions upon a subject on which it is impossible to reconcile the discord- ant views of theoretical writers. It must, in each particular case, be a question of fact to Lie determined from the evidence whether there was insanity, and what was its cause and character. Plake v. State, 121 Ind. 133. It is quite unnecessary to add that if the evidence is of "such a character as to create a reasonable doubt whether the accused was of unsound mind at the time the crime was committed he is enti- tled to a verdict of acquittal. Polk v. State, 19 Ind. 170, 80 Am. Dec. 3S2; Bradley v. State, 31 Ind. 492; McDougal v. State, 88 Ind. 21. A masterly analysis and review of this subject by Chief Justic< Shaw will be found in Com. v. Anthes, 5 Gray, 185. There are less elaborate but equally forcible statements of the theory by Story, J., in United States v. Battiste, 2 Sumn. 240; by Curtis, J., in United States v. Morris, 1 Curt, C. C. 23; by Gilchrist, J., in Pierce v. State, 13 K H. 536; and by Shaw, Ch. J., in Com. v. Porter, 10 Met. 203. See also Montgomery v. State, 11 Ohio, 427: Montee v. Com. 3 Marsh. J. J. 149; Tcwnsend v. State, 2 .Blackf. 151; Pierson v. State, 12 Ala. 153; Hardy v. State, 7 Mo. G07; Mis v. State, 2 Tex. 2S0; Brown v. Com. 86 Ya. 466; and lastly in England by Mr. Ilargrave in his note to Coke Litt. 155 o. In People v. Dick, 32 Cal. 216, the court says: "It is better for the court, in charging the jury in a criminal case, t<> avoid assuming any material fact as proved, however clear to the mind of the court such fact may seem to be established, because it is the province of the jury, unaided by the judge, to say whether a fact is proved or otherwise." 142 LAW OF EVIDENCE IN CRIMINAL CASES. And in State v. Whitney, 7 Or. 336, Kelly, Ch. J., said: "It m the exclusive province of the jury to determine questions of fact. They and they only have a right to judge of the credibility of witnesses, and the weight and effect of their testimony. And it has always been held to be an erroneous instruction when the court assumed any controverted fact to be proven, instead of sub- mitting to the jury the question whether or not it has been estab- lished by the testimony before them." State v. MacTtey, 12 Or. 154. § 92. Plea of not Guilty Raises a Question of Fact.— The plea of not guilty is a denial of every material allegation in the- indictment. All matters of fact, tending to establish a defense, may be given in evidence under the plea of not guilty. If the' defendant refuse to answer an indictment by demurrer or plea, a. plea of not guilty must be entered. N. T. Code Crim. Proc. §§ 33S, 339, 342. § 93. Evidence of Habit is a Question of Fact. — The gen- eral rule forbids the opinions or conclusions of witnesses from being given in evidence; but, whether or not a person possesses a. certain habit, is rather a question of fact than of opinion or con- dition. It respects a person's condition, as to which witnesses are often allowed to speak without being confined to a narration of the particulars which go to constitute the condition. Thus, under proper circumstances, a common witness may testify direct- ly as to sanity, solvency or insolvency; as to a person being sick or in pain; and, as in People v. Eastwood, 14 1ST. Y. 566, whether a person was drunk or sober; whether a horse was a safe and kind, horse. See Sydh id an v. Beckwith, 43 Conn. 13, where is quite a collection of instances where common observers, not experts, may give their opinions. In Stanley v. State, 26 Ala. 26, and JElam v. State, 25 Ala. 56, the allowance of precise direct evidence of intemperate habits was sustained. Gallagher v. People, 120 111. 179. Whether a person possesses a certain habit, is a question of fact, to which any person knowing may testify. Abbott, Trial Ev. 7-78;. Stanley v. State, and Elam v. State, supra; Spear v. Drainage Comrs. 113 111. 634; Bank of Middlebury v. Butland, 33 Yt. 414; Sydleman v. Beckwith, and People v. Eastwood, supra/ Dahmer v. State, r>r> Miss. 789; Mopes v. People, 69 111. 530. § 94. The Result Stated. — Lastly, it should be remembered QUESTIONS OF LAW AND FACT. 143 that there is no line of distinction better defined in the constitu- tion of the courts of criminal jurisdiction than that which sepa- rates the province of the court from that of the jury. Ad ques- tionem juris respond 'eant judices, ad quest ion emfacti respondeat juratores, is the law maxim which defines the line of separation. An intelligent and conscientious jury will look to the court, in the trial of the capital case, with confidence and reliance, for instruc- tion and guidance as to the law of the case, and all things exclu- sively within his province. In addition to their obligation to accept the law as he pronounces it, they naturally trust to his superior knowledge and his larger experience. Gordon v. People, 33 N. Y. 501. Logically considered, the trial of a criminal case is an effort to complete a final syllogism, having for one premise, matter of law: for the other, matter of fact; and for the conclusion, the resulting proposition of guilty or not guilty. It is the duty of the judge to supply the jury with material for the major premise of this syllogism; and it is the duty of the jury to collect from the evi- dence the minor premise, compare the two. draw the conclusion.: and declare it in their verdict. Habersham v. State, 56 Ga. Gl. CIIAPTEE XVI. SCIENTIFIC BOOKS IN EVIDENCE. § 95. Species of Evidence not Favored. 90. Not Read in Argument to Jury. 97. Partial Review of Authorities. 98. Views of Mr. Moak. 99. Exception Noted. § 95. Species of Evidence not Favored. — Although the courts are not uniform in their holdings upon the admissibility in evidence of medical and scientific books, the great weight of au- thority is to the effect that they cannot be admitted to prove the declarations or opinions which they contain. This view proceeds upon the theory that the authors did not write under oath, and that their grounds of belief and processes of reasoning cannot be tested by cross-examination. But while the books are not admis- sible, an expert witness is not confined wholly to his personal experience, but his opinions formed in part from the reading of treatises prepared by persons of acknowledged ability may be given in evidence. So, also, may a witness refresh his recollec- tion by reference to standard authors; but the judgment or opinion which he gives must be his own, and not merely that of the author. Dicta are to be found in the reports of the courts of several of the states which, disconnected with the context, would seem to support the proposition that counsel may be permitted to read from medical works of established credit in the profession "as part of his argument." But in one only of the cases, so far as we have been able to find, was it decided that this practice was proper, such decision being necessary to the conclusion reached by the court. In Yoe v. People, 49 111. 412, it was said that where the attorney for the people, against the objection of the prisoner, read copious extracts from medical works, the court (without special request on the part of the prisoner) should have instructed the jury that such books are not evidence, but theories simply of medical men. Even if we should accept this as law, the judg- 144 SCIENTIFIC BOOKS IN EVIDENCE. 145 ment in the present case must be reversed, since the court below did not so instruct the jury. In Yoe v. People, the reading of such books by the attorney for the people (in the absence of the instruction mentioned) was held to be error and the judgment was reversed. In our view the court came to the proper conclu- sion, — that error had occurred. People v. Wheeler, 60 Cal. 581,44 Am. Eep. 70. The weight of current authority is decidedly against the admis- sion of scientific books in evidence before a jury, although in some states they are admissible. 2 Greenl. Ev. § 440, and note; Whart. Ev. § 665; Eogers, Expert Testimony, §§ 16S, 169, et seq., and cases cited in notes. And the weight of current authority is, also, against allowing such treatises to be read from, to contradict an expert, generally. Com. v.Sturtwa/rtt, 117 Mass. 122, 19 Am. Rep. 401; Davis v. State, 38 Md. 15; State v. O'Brien, 7 R. I. 336. "Where, however, an expert assumes to base his opinion upon the work of a particular author, that work may be read in evidence to contradict him. This was, in effect, the ruling in Connecticut Mat. L. Ins. Co. v. Ellis, 89 111. 516, and it was ex- pressly so ruled in Pmney v. Cahill, 48 Mich. 584; Ripon v. Bittel, 30 ^Wis. 614, and Huffman v. Click, 77 X. C. 55. See .also Marshall v. Brown, 50 Mich. 14S; Rogers, Expert Testi- mony, § 181. Where a witness says a thing or a theory is so because a book says so, and the book, on being produced, is discovered to say directly to the contrary, there is a direct contradiction which any- body can understand. But where a witness simply gives his opinion as to the proper treatment of a given disease or injury, and a book is produced recommending a different treatment, at most the repugnance is not of fact, but of theory; and any num- ber of additional books expressing different theories, would obviously be quite as competent as the first, but since the books are not admissible as original cases in such evidence in such c it must follow that they are not admissible on cross-examination where their introduction is not for the direct contradiction of something asserted by the witness, but simply To prove a contrary theory. Bloomington v. Shrock, 110 111. 219, 51 Am. Rep. 679. In Bijyon v. Bittel, 30 "Wis. 614, the question was on the ad- mission of surgical treatise in evidence. The court said that it -was urged that they were improperly admitted, and should only . 10 146 LAW OF EVIDENCE IN CRIMINAL CASES. have been allowed to be read in argument, and that " such per- haps may be the general rule." But their admission was ap- proved. This therefore is not an authority on the point in question. § 96. Not Bead in Argument to Jury. — In Com. v. Wilson, 1 Gray, 337, Shaw, Oh. J., held that scientific books cannot be- read in argument to the jury. He said : " Facts or opinions on the subject of insanity, as on any other subject, cannot be laid before the jury except by the testimony under oath of persons skilled in such matters. Whether stated in the language of the court, or of the counsel in a former case, or cited from the works of legal or medical writers, they are still statements of fact, and must be proved on oath. The opinion of a lawyer on such a question of fact is entitled to no more weight than that of any other person." § 97. Partial View of Authorities. — This was reiterated by the same judge, in Ashworth v. Kittridge, 12 Cush. 193, 59 Am.. Dec. 178. He there said : " Where books are thus offered, they are in effect used as evidence, and the substantial objection is that they are statements wanting the sanction of an oath; and the statement thus proposed is made by one not present and not liable to cross-examination." In People v. Anderson, 44 Cal. 65, while the practice was con- sidered as improper, it was held not to be a reversible error, because it was a matter within the discretion of the trial court, and unreviewable on appeal except for an apparent abuse of dis- cretion. People v. Treadivell, 69 Cal. 226. And in Reg. v. Taylor, 13 Cox, C. C. 77, it was held: "Cases cited in books on medical jurisprudence are not admissible even to form part of an address to the jury." Counsel for defense, in addressing the jury, proposed to read from Taylor's Medical Jur- isprudence. Brett, J., said : " This is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was in all probability not present." To the same effect are the American cases, in which the ques- tion is fully considered and decided. In State v. O'Hrien, 7 R. I. 338, the court said : " The book offered to be read to the jury was not admissible as evidence. No evidence on the nature of parol testimony could properly pass to them, except unaer the sanction of an oath; and upon this* ground books of science are SCIENTIFIC BOOKS IN EVIDENCE. 147 excluded, notwithstanding the opinions of scientific men that they are books of authority and valuable as treatises. Scientific men are permitted to give their opinions as experts, because given under oath, but the books which they write containing them are, for want of such oath, excluded." People v. Wheeler, 60 Cal. 581, 44 Am. Kep. TO. Medical books are not addressed to common readers, but require particular knowledge to understand them. Every one knows the inability of ordinary persons to understand or discriminate between symptoms or groups of symptoms, which cannot always be described to those who have not seen them, and which with slight changes and combinations mean something very different from what they mean in other cases. The cases must be very rare in which any but an educated physician could understand detached passages at all, or know how much credit was due to either the author in general or to particular parts of his book. Scientific men are supposed to be able from their study and ex- perience to give the general results accepted by the scientific world, and the extent of their knowledge is tested by their per- sonal examination. But the continued changes of view brought about by new discoveries in most matters of science, and the necessary assumption of scientific writers of some technical knowl- edge in their readers, render the use of such works before juries — especially in detached portions and selected passages — not only misleading but dangerous. The weight of authority is against their admission. Such books may be read to discredit a witness who has testified that his views were supported by such authority. Pinney v. Cahill, 4S Mich. 584. Or to test the extent of an " expert's" knowledge on cross-examination. Connecticut. Ins. Co. v. Ellis, 89 111. 516. But see generally, Darljy v. Ouseley, 1 Hurlst. & K 12; Terry v. Ashton, 34 L. T. 07; Ashworth v. Kittrulge, 12 Cush. 193; Com. v. Brown, 121 Mass. 69; Carter v. State, 2 Ind. 617; Gehrke v. State, 13 Tex. 56S; Collier v. Simpson, 5 Car. & P. 73; Com. v. Sturtivant, 117 Mass. 122; Brodhead v. Wiltsee, 35 Iowa, 429; Harris v. Panama R. Co. 3 Bosw. 7' People v. Hall, 48 Mich. 4S2. § 98. Yiews of Mr. Monk. — From a valuable article in the Albany Law Journal, of Oct. 8, 1881, I extract the following as illustrative of the present attitude of the decisions as regards the reading of scientific books to the jury. 14:8 LAW OF EVIDENCE IN CRIMINAL CASES. In his interesting paper on "Experts and Expert Testimony," 21 Alb. L. J. 266, Mr. Moak says: "As a rule scientific works cannot be read in evidence to the jury. . . . In summing up to the jury, counsel are entitled to read approved scientific works as a part of their argument." The supreme court of "Wisconsin holds that where witnesses examined as medical experts have tes- tiiied that books recognized as standard authorities in the profes- sion, lay down certain propositions, or sustain certain conclusions, the books thus referred to may be put in evidence for the purpose of discrediting such witnesses. E'qwn v. Bittel, 30 Wis. 614. In State v. Hoyt, 46 Conn. 330, the doctrine as laid down by Mr. Moak was held, but two judges of the five dissented. In Wis- n and Texas the matter is said to be within the discretion of the court. It seems a wrong rule that counsel may read to the jury as part of his argument, on scientific facts, books which cannot be put in evidence for the same purpose. Whether the scientific opinion is read to the jury as evidence or as part of an argument seems to work out the same result, namely, to get before the jury the opinion of an expert, at secondhand, and with no opportunity for cross-examination. Mr. Moak cites three cases to his statement, — Legg v. Drake, 1 Ohio St. 286; Beg. v. Courvoisier, 9 Car. & P. 302; Bipon v. Bittel, 30 "Wis. 614. Tn the first of these cases the court went very near to holding in accordance with Mr. Moak's statement. The proposition was to read from Youatt's work on "Veterinary Sur- gery." The reading was forbidden. The court on appeal said : "It is not to be denied but that a pertinent quotation or extract from a work on science or art, as from a classical, historical, or other publication may by way of argument or illustration, be not only admissible, but sometimes highly proper. And it would seem to make no difference whether it was repeated by counsel from recollection or read from a book. It would be an abuse of this privilege however, to make it the pretense of getting im- proper matter before the jury as evidence in the cause." This essay is a fine specimen of inductive reasoning and will well pay perusal. Mr. Moak admirably formulates the existing conditions under which scientific books may be read in evidence. "While there can be no hostility to the conclusions that he reaches there well may be a want of sympathy with an exclusionary rule that shuts the averments of modern science from the court room under SCIENTIFIC BOOKS IN EVIDENCE. 149 any pretext whatever. Law itself is a science and in a state of gestation at that, and yet a law review of any description is ad- missible before either court or jury. Why should conclusions of other sciences be ignored % §99. Exception Noted.— Mr. Abbott in his Trial Brief, §459, says : "Statements made in books of inductive science, such as standard medical works, are not competent evidence for any pur- pose. Otherwise of books of exact science, such as the Northamp- ton tables, and the like, if recognized by the court as such, or shown to be such by a qualified witness. Citing Epps v. State, 102 Ind. 539; State v. Baldwin, 30 Kan. 491; Com. v. Wilson, 67 Mass. 337; Com. v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401; Com. v. Brown, 121 Mass. 69; People v. Millard, 53 Mich. 63; People v. Goldenson, 76 Cal. 328; Bales v. State, 63 Ala. 30; State v. West, 1 Houst. Crim. Rep. (Del.) 371; People v. Cheekee, 61 Cal. 404; Abbott, Trial Ev. 724, 22 Am. L. Reg. N. S. 105, note; 59 Am. Dec. 185, note. Judge Redfield will be readily recognized as a jurist unencum- bered by visionary speculations of doubtful value upon any topic. In his well known work on the Law of Wills he asserts that reading in the hearing of a jury of "general treatises upon scientific and professional subjects has been allowed by many courts, either as part of the testimony or of the argument of counsel. But when objected to, they have not generally been allowed to be read, either to court or jury." Com. v. Wilson, 1 Gray, 337; Wash- hum v. Cuddihy, 8 Cray, 430; Ax/uvo/>t7t v. Kittridge, 12 Cush. 193; S. P. E. v. Taylor, 13 Cox, C. C. 77. Traveling along the same lines of logic the supreme court of Texas has held that it is a subject vested in the sound discretion of the court, as to the extent to which scientific works may be read in evidence. Dempsey v. State, 3 Tex. App. 42'.>. See gen- erally, on this subject, Bayles v. State, 03 Ala. 30; State v. Hoyt, 46 Conn. 330; State v. O'Brien, 7 R. I. 330; People v. W/ieeler, 60 Cal. 581; Toe v. People, 41) 111. 410. There can certainly be no objection to such reading in argu- ment to the court. "I believe that those judges, who carefully study the medical writers, and pay the most respectful attention to their scientific researches on the; subject, will seldom if ever submit a case to a jury in such a way as to hazard the conviction of a wronged man." State v. Spencer, 21 N. J. L. 1 '.»<;. Books of exact science are under a different rule and arc gen- erally admissible. CHAPTER XVII. PHOTOGRAPHY IN EVIDENCE. § 100. Value of Photography as Evidence. 101. Tlie Celebrated Udder zook Case Examined. 102. Accuracy of Photograph may he Questioned. 103. Photographs of Documents, ivhen Admissible. § 100. Value of Photography as Evidence. — The recent dis- coveries of Dr. Lippmann have imparted additional value to the art of photography as a means of evidence. Without employing pigments or coloring matter of any description, this discovery by the use of a sensitized film, transparent and free from all granula- tions or imperfections, taken in connection with an ingenious combination of mirrors of a most perfect polish gives to the nega- tive when fixed the colors of the object photographed. This reproduction of the color is not an artificial accomplishment, but is entirely due to natural phenomena. For many years the prob- lem in photography has been directed toward this discovery. It gives a permanent value to the photographic process which it has never heretofore possessed, and its direct influence upon eviden- tiary law must have immediate and permanent effect in that it imparts an additional element of certainty to a process that is already of incalculable advantage in both art and science. § 101. The Celebrated Udderzook Case Examined. — The phenomenal accuracy of the photographic art has become well recognized as a successful ally in the detection of crime. Few cases of recent years have been more tragic in their incidents or more startling in their developments than that of the famous case of Udderzook v. Com. YG Pa. 310. This case was tried in 1S73, and the opinion of Chief Justice Agnew is especially sig- nificant upon the subject now under review. Its obvious perti- nency will be questioned by none. The portion contributing to this discussion is in the following language: "All the bills of exception relate to the use of a photograph of Goss. This photograph, taken on the same plate with a gentle- man named Langley, was clearly proved by him and also by the artist who took it. Many objections were made to the use of the 150 PHOTOGRAPHY IN EVIDENCE. 151 photograph, the chief being to the admission of it to identify Wilson and Goss. That a portrait of a miniature, painted from life and proved to resemble the person, may be used to identify him, cannot be doubted, though, like all other evidence of iden- tity, it is open to disproof or doubt, and must be determined by the jury. There seems to be no reason why a photograph, proved to be taken from life and to resemble the person photographed, should not fill the same measure of evidence. In the case before us, such a photograph of the man Goss was presented to a wit- ness who had never seen him, so far as he knew, but had seen the man known as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a case depends on the relia- bility of the photograph as a work of art, and this must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The daguer- rean process was first given to the world in 1S39. It was soon followed by photography. It has become a customary and a com- mon mode of taking and preserving views, as well as the likenesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science, that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retinae through the lenses of the eyes. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct like- nesses." § 102. Accuracy of Photograph may he Questioned. — Pho- tographic pictures are the product of natural laws and a scientific process. It is true that in the hands of a bungler, the result may not be satisfactory. Much depends for exact likeness upon the nice adjustment of machinery, upon atmospheric conditions, upon the position of the subject, the intensity of the light, the length of the sitting. Most of evidence is but the signs of things. Spoken words and written words are symbols. So the signs of the portrait and the photograph, if authenticated by other testimony, may give truthful representations. When shown by such testimony to be correct resemblances of a person, we see not why they may not be shown to the triers of the facts, not as conclusive, 152 LAW OF EVIDENCE IN CKIMINAL CASES. but as aids in determining the matter in issue, still being open,, like other proofs of identity, or similar matter, to rebuttal or doubt. Photographs at best, are but secondary evidence — mere "hear- say of the sun;" and when the lack of better evidence compels a resort to them, the correctness of the photographic copies offered must be shown by proof that the process of taking them was con- ducted with skill and under favorable circumstances, as well as that the result has been a fair resemblance of the object. Taylor Will Case, 10 Abb. Pr. K S. 300, 318; Ilynes v. McDermott? 82 X. Y. 41, 50, 37 Am. Eep. 538; Cowley v. People, 83 K T. 461, 478, 38 Am. Rep. 464. Still it must be deemed established that photographic scenes are admissible in evidence as appropriate aids to a jury in apply- ing the evidence, whether it relates to persons, things or places. Cozzens v. Higgins, 1 Abb. App. Dec. 451; Cowley v. People, supra; Durst v. Masters, L. R. 1 Prob. Div. 373, 378. § 103. Photographs of Documents, when Admissible. — Photographic copies of public documents on file in the depart- ments at Washington, which public policy requires should not be removed, are admissible in evidence when their genuineness is authenticated in the usual way, by proof of handwriting. Leath- ers v. Salvor Wrecking d' Transp. Co. 2 "Woods, C. C. 680. In the case of United states v. Messman (jST. Y.) 1 Cent. L. J» 121, which has been on trial before Judge Blatchford, an interest- ing point of evidence was decided. According to the Herald's report of the case, the action was brought to recover $253.79, on the following charge: Mr. Messman, on the 20th of July, 1S64, presented his pay-rolls for the months of January and February, 1864, and upon the presentation of that paper received $253.79. It is charged by the government that on March 18, 1864, he had received his pay for those months, and the inference raised by the government was that he had obtained double pay. The coun- sel for the defense set up that one of the pay-rolls was a forgery. The government had sent on photographic copies of those pay- roll.- purporting to have been signed by Mr. Messman. The United States assistant district attorney offered to put those photographic copies in evidence, but Judge Blatchford declined to accede to the offer, saying that as the defense was that one of these pay-rolls was a forgery, counsel for the government 'must PHOTOGRAPHY IN EVIDENCE. 153 put in the originals. The counsel replied that the court of com- mon pleas, in a case of this kind, had decided that where it was set up that a paper was forgery, a photographic copy of it could be received in evidence. Judge Blatchford: "I am not bound by the decision of the court of common pleas, and I shall not con- cur in its decision. To admit in evidence a photographic copy of a pay-roll would be acting contrary to well established rules of evidence — in fact, it would be monstrous." "With the consent of defendant, a photograph representing the place where the homicide was committed, was put in evidence, W, a witness for the prosecution, who was present when the photograph was taken and who had seen part of the affair from a window near by, placed three persons in the highway to repre- sent the positions, which, according to his recollection the deceased, the defendant and another person present at the homicide occu- pied. W's testimony as to that fact was received under objection and exception, and it was held to be no error. People v. Jack- son, 111 K Y. 362. Where the party introducing a photograph in evidence verifies the process by which it was taken by showing that the result obtained fairly resembles the object photographed, the picture becomes competent evidence in the case, provided there is proper occasion for the introduction of any view of the person or prem- ises and the modern cases generally support this view, nor are the cases adverse to these views. Ruloff v. People,. 45 N. Y. 213- Udderzook v. Com. 76 Pa. 310; Cowley v. People, 83 N". Y.465, 38 Am. Rep. 464. And in another case, when the genuine signature and the dis- puted signature were both brought into court, magnified photo- graphic copies of each, together with the originals, were submit- ted to the inspection of the jury, and it was held not to have been error. Marcy v. Barnes, 10 Gray, 162; Cozzens v. Higgins, 1 Abb. App. Dec. 451; Church v. Milwaukee, 31 "Wis. 512; Hollen- beck v. Rowley, 8 Allen, 173; Com. v. Coe, 115 Mass. 481; Walh r \. Curtis, 116 Mass. 98; Ruloff v. People, supra; Cowley v. People, supra; Robinson v. Mandell, 3 Cliff. L69; Taylor Will Case, 10 Abb. Pr. K S. 300; Tome v. Parkersburg R. Co. 39 Md. 36, 17 Am. Rep. 510. Sec Daly v. Maguire, 6 Blatchf. 137; Re Foster's Will, 31 Mich. 21; Eborn v. Zimpelman, 17 Tex. 503, 26 Am. Rep. 315; R< Stephens, L. R. 9 C. P. L87; 154 LAW OF EVIDENCE IN CRIMINAL CASES. leathers v. Salvor Wrecking & Tramp. Co. 2 Woods, C. C. 682 JLuco v. United States, 64 U. S. 23 How. 515, 16 L. ed. 515 Ri ddin v. Gates, 52 Iowa, 210; Ordway v. Haynes, 50 N". H. 159 Eynes v. McDermott, 82 K Y. 41, 37 Am. Eep. 538; Durst v. Masters, L. E. 1 Prob. Div. 373. The general rule is without contradiction that where the pho- tograph is shown to be a faithful representation of whatever it purports to reproduce it is admissible, as an appropriate aid to a jury in applying the evidence; and this is equally true whether it relates to persons, things or places. For further exposition of this subject see 2 Rice, Civil Evidence, ■hip. lii. p. 1163, el seq_. CHAPTER XYIII. ORDER OF PROOF. § 104. Order of Proof Largely Discretionary. 105. General Rule as to the Prosecution. 106. Usual Order of Proof in Criminal Cases. 107. Abuse of Discretion as Subject of Review. 108. Rule as to New Evidence. 109. Pertinent Evidence may be Received at any Time. 110. Views of Judge Rosevelt. 111. Conditional Reception of Evidence on Promise to Show Rele- vancy. 112. Continuance Granted when. § 104. Order of Proof Largely Discretionary.— In the trial of both civil and criminal causes, the order in which the testimony shall be admitted is one of practice rather than of strict right, and may, in the discretion of the court, be varied to meet the exigen- cies of a given case, without error being predicable thereon, unless it is manifest that the variance has operated to surprise, or in some way work a legal disadvantage to the excepting party. 1 Archb. Crim. Pr. & PI. 576; Pingry v. Washhwrn, 1 Aik. (Vt.) 264; Clayes v. Ferris, 10 Vt. 112; Goss v. Turner, 21 Yt. 437; 1 Bishop, Crim. Proc. § 966. § 105. General Rule as to the Prosecution.— The courts in the trial of criminal causes have generally, but not universally required the prosecution to put in its whole case in the opening, and have confined it in the close to testimony which tended to rebut the testimony of the respondent. We apprehend that this practice, so far as it varies in this respect from that which obtains in civil cases, has been adopted rather out of tenderness to the re- spondent, and that before entering on his defense he might be fully apprised of the case which he had to meet, than because of right he could demand it. But in no state, so far as we are aware, has it ever been pushed to the extreme of rejecting in the clo.se, testimony which legitimately tended to weaken the effect of the testimony adduced by the respondent because it also tended to strengthen and confirm the testimony introduced in the opening 155 156 LAW OF EVIDENCE IN CRIMINAL CASES. by the prosecution. Pmgry v. Washburn, 1 Aik. (Vt.) 264; Clayesv. Ferris, 10 Vt. 112; Goss v. Turner, 21 Vt. 437; 1 Saunders, PL & Ev. 1100; Stephens, K P. 1802; Koscoe, Crim. Ev. 79; 1 Stark. Ev. 151, note k; Dave v. State, 22 Ala. 23; Kalle v. People, 1 Park. Crim. Rep. 592; Sa/rtorious v. State, 21 Miss. 602; Mary v. Sifote, 5 Mo. 71; 2 Phil. Ev. 17; 2 Russell, Crimes,. 588; Bees v. xWM, 2 Stark. 20; (Jrw v. £k7o, 1 Mood. & M. 85; XW, v. XY/'A/, /ww, 49 Vt. 202, 24 Am. Rep. 124; State v. Mam, 31 Conn. 572; 1 Best, Crim. Proc § 966. § 106. Usual Order of Proof in Criminal Cases. — The jury having been impaneled and sworn, the trial must proceed in the following order : 1. The district attorney, or other counsel for the people, must open the case, and offer the evidence in support of the indictment; 2. The defendant or his counsel may then open his defense, and offer his evidence in support thereof; 3. The parties may then, respectively, offer rebutting testimony, but the court, for good reason, in furtherance of justice, may per- mit them to offer evidence upon their original case; 4. When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the defendant or his counsel must commence, and the counsel for the people conclude the argument to the jury; 5. The court must then charge the jury. Generally in criminal prosecutions it may be said that the order in which the proof is presented to the consideration of the jury is in no sense arbitrary and the variant circumstances of each par- ticular case require more or less latitude in their application. /'■ r /, v. Wilson, 55 Mich. 500. See Spies v. People, 122 111. 1,. 9 Crim. L. Mag. 829, 3 Am. St. Rep. 320, 6 Am. Crim. Rep. 570. The Michigan supreme court has repeatedly held, that the ad- mission of evidence out of strict order is in the discretion of the court. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Danielson v. Dyckman, 26 Mich. 169; Somerville v. Richards, 37 Mich. 299; Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 7i' v : Peopli. v. Wilson, 55 Mich. 506. See also State v. Daubert, 42 Mo. 242; Stat< v. Lmney, :»i J Mo. 40; State v. Beuchler, 103 Mo. 203, as expository of the Missouri rule. The foregoing text renders any further comment unnecessary a.- to the arbitrary control accorded the presiding judge in matters OKDEli OF PBOOF. 157 relating to the order of proof. The United States circuit court has held that it is within the discretion of the trial court to ffrant an adjournment for the purpose of allowing further testimony to be introduced; and this, after one side has rested its case. JJn ited States v. Woelke, 17 Blatchf. 555. See also State v. Manuel, 64 K C. 001; Winn v. State, 43 Ark. 151; Peopk v. Rector, 19 Wend. 5*;'.'; State v. Harris, 03 X. C. 1. The discretion however, that is reposed in the presiding judge, if palpably abused may be made the subject of inquiry in the appellate court, and when clearly prejudicial to the accused or granted with reckless im- providence, will constitute reversible error. See Meyer y. Culr len, 54 X. Y. 392. Even after the testimony in a case has closed, it is discretionary with the court whether to open the case or not, to receive addi- tional evidence, and the decision is not reviewable. Caldwell v. New Jersey S. B. Co. 47 N. Y. 282. § 107. Abuse of Discretion as Subject of Review. — An abuse of judicial discretion has always been, and always ought to be, the subject of review in some form. An abuse of discretion, in a legal sense, does not by any means imply that the judge committing it was actuated by an improper motive. It is quite likely to happen in the hurry of a trial at circuit; and without careful consideration a plain error of lawmav be committed, resulting to the prejudice of a party, which the judge committing the error would, upon further reflection, be most happy to correct if he could have the opportunity. In such case there is no doubt but that an appellate court will do justice. Meyer v. ('"Urn. 54 X. Y. 392. § 108. Rule as to New Evidence.— It is entirely within the discretion of the trial court to permit a party to introduce new evidence to maintain the issue, or to re-examine a witness on his part as to transactions previously testitied to; and this is true although the evidence is not strictly rebutting. Marshall v. Da- vies, 78 X. Y. 414; Huntsman v. Nichols, 110 Mass. 521; Gaines v. Com. 50 Pa. 319; Dally v. Grimes, 27 Md. 440; Day v. Moore, 13 Gray, 522; L)<>~i> r v. Jerman, 30 Mo. 210; Walker v. Walker, 14 Ga. 242. § 109. Pertinent Evidence may be Received at any Time. — In this connection it must lie borne in mind, that the order of proof and, indeed, the whole conduct of the trial as relate- to the 158 LAW OF EVIDENCE IN CRIMINAL CASES. admission of evidence is largely within the discretion of the trial court. This we have seen, and when it is further considered that one of the most elementary principles of practice that can be stated is to the effect that the exercise of a mere discretion, upon the part of the presiding judge, is never a fit subject for com- ment or review, unless there is palpable evidence of gross abuse,. it becomes apparent that material evidence is always in order at any time before the conclusion of the arguments, provided the right to its admission is sanctioned by the court. Mr. Justice Lumpkin expressed these sentiments in more appropriate lan- guage in delivering the decision in an early Georgia case: " I must say that so much adverse am I to withholding testimony, that I can hardly conceive of a case so gross and palpable that I should feel constrained to control the discretion of the circuit judge from receiving at any time additional affirmatory, cumulative or cor- roborative evidence of facts previously proved, or which tends to strengthen and add force or probability to such evidence." Wal- ker*. Walker, 14 Ga. 212. § 110. Views Of Judge R-OSevelt. — Judge Eosevelt,in a criminal ease decided by the New York general term in 1859, entertained similar views with the full concurrence of his associate judges, Sutherland and Lott. From a careful review of that case it appears, that in criminal as well as in civil cases, it is within the discretion of the court to receive further evidence on the part of the prosecution after the summing up has been commenced. Ordinarily, the prosecution must introduce all the evidence in support of the indictment, before resting. A prosecuting attorney may supply an omission, as matter of right; but this implies that he may do so as matter of favor; in other words, that it is discre- tionary with the judge, in view of all the circumstances, to grant the permission or to refuse it; and that no appeal, in such case,. lies from his decision. Kalle v. People, 4 Park. Crim. Rep. 591. These positions are sustained by a formidable array of authority. See Com. v. Ricketson, 5 Met. 412; Taylor v. Shemwell, 4 B. Mon. 575; Fleet v. Hollenkemp, 13 B. Mon. 219; Hess v. Wilcox, 58 Iowa, 380; State v. Rose, 33 La. Ann. 932; Tierney v. Spiva, T<; -Mo. 279; State v. Clyhurn, 16 S. C. 375; Buggies v. Coffin,^ Me. 46S; Breedlove v. Bundy, 96 Ind. 319; George v. Pilcher y 28 Grratt. 299; Larman v. Iluey, 13 B. Mon. 436; Caldwell v. New Jersey S. B. Co. 47 K Y. 282; McDowell v. Crawford, 11 ORDER OF PROOF. 159 1 Gratt. 377; Williams v. Hayes, 20 N. Y. 58; Eggspieller v. Knockles, 58 Iowa, 649; Darland v. Rosencrans, 56 Iowa, 122; McKinney v. Jones, 55 Wis. 39; State v. Porter, 26 Mo. 201;. State v. Coleman, 27 La. Ann. 691; Johnston v. Mason, 27 Mo. 511; CWA v. Charlotte, C. & A. R. Co. 22 S. C. 557; Jackson v. Tallmadge, 4 Cow. 150; Lewis v. Ryder, 13 Abb. Pr. 1;. Alexander v. Byron, 2 Johns. Cas. 31S; /S'tecy v. Graham, 3 Duer. 414; Burger v. 117^'fe, 2 Bosw. 92; Anthony v. Smith, 4 Bosw. 503; Speyer v. Stern, 2 Sweeny, 516; Williams v. Hayes, 20 X. Y. 58; Kellogg v. Kellogg, 6 Barb. 116; Barrett v. CW^cr, 3 Lans. 6S; Peqpfe v. ift?cfcw, 19 Wend. 569. In the case last cited, it was said : " The refusal to recall a, witness to restate his testimony, after a cause has been summed up and the jury charged, is a matter of discretion appertaining to the court before whom the trial is had; with the exercise of which a court of review will not interfere." § 111. Constitutional Reception of Evidence on Promise to Show Relevancy. — That a court may base its action upon the avowals and declared purposes of counsel is shown by Dunn v. People, 29 N. Y. 523. It would too much hamper the trial courts in their proceedings, if they were much restricted in the exercise of a discretion in the order in which proof should be received. There must be a discretion vested in them, in such case, for the convenience and dispatch of business, and often for a proper understanding and appreciation of the testimony. McCarney v. People, 83 K Y. 408, 415, 38 Am. Eep. 456. A well considered case in Michigan holds directly contrary to the Xew York rule and the practice generally regarding the con- ditional reception of evidence must be regarded as involved in more or less contradiction. People r. Millard, 53 Mich. 63; Zell v. Com. 94 Pa. 558, 2 Crim. L. Mag. 22. § 112. Continuance Granted when. — Continuances ought always to be granted when, from the showing, justice requires it to be done, and to enable a defendant to procure all legal and competent evidence necessary for the fair presentation of his case, if he had used due diligence to obtain the same. Technical objec- tions should not ordinarily prevent the granting of the motion for continuance, if it is necessary to the proper presentation of the defendant's case. But continuance will not be granted unless it is shown that there is some necessity for the production of the 160 LAW OF EVIDENCE IN CRIMINAL CASES. proposed testimony. Hence, in affidavits for a continuance, it is the uniform practice for the party applying for the continuance, to state that he has no other witness by whom he can establish the same fact. Continuances will not be allowed to enable the party to produce evidence that is merely cumulative, unless there is some necessity shown therefor, — such as, that there will be a con- flict in the evidence in reference to the particular matter in regard t< i which the absent witness is expected to testify. Eighmy v. People, 70 1ST. Y. 546; Roberts v. People, 9 Colo. 458; Dunn v. People, 109 111. 635; Bagwell v. State, 56 Ga. 406; State v. Dakin, 52 Iowa, 305; Beavers v. State, 58 Ind. 530; Walker v. State, 13 Tex. App. 618; State v. Lewis, T4 Mo. 222; Shook v. Thomas, 21 111. 87. The evidence usually relied upon to secure a continuance in a criminal case is brought to the attention of the trial court through the medium of affidavits, or upon such direct statements in open court by reputable counsel as will entitle them to judicial consid- eration. In cases of felony the absence of the accused is a sufficient cause for a continuance. Brown v. State, 24 Ark. 620; State v. Cross, 27 Mo. 332; People v. Perkins, 1 Wend. 91; Graham v. State, 40 Ala. 659; People v. Koehler, 5 Cal. 72; Jackson v. Com. 19 Gratt. 656; State v. Doohj, 64 Mo. 146; Sm > d v. State, 5 Ark. 431; State v. Bertin, 24 La. Ann. 46; K Y. Code Crim. Proc. § 465. Public indignation against the accused, owing to the enormity of the alleged offense, when satisfactorily shown to the court should result in a continuance. State v. Wells, 61 Iowa, 629; Bishop v. State, 9 Ga. 121; Cox v. State, 64 Ga. 374; Beavers v. State, 58 Ind. 530. Sudden illness of the attorney for the accused, and possibly unavoidable absence may be shown in sur^jbort of a motion for continuance. Bagwell v. State, 56 Ga. 406. And, in most jurisdictions, insufficient time to properly prepare the defense may be urged with propriety. State v. Leiois, 74 Mo. 222. By statutory enactment in Kew York, the defendant after a plea of not guilty is entitled to a continuance of at least two days to prepare for his trial if he require it. The trial itself however, may be had in absence of the accused if he appear by counsel, bur, if the indictment be for a felony, the defendant must be per- sonally present. K Y. Code Crim. Proc. § 356, 357. It is the constitutional privilege of one accused of crime to have OKDEK OF PKOOF. 161 the assistance of counsel and this privilege carries with it the co- ordinate right to a personal interview. See U. S. Const. 6th Amendment; Cooley, Const. Lim. 331. To give life and effect to this constitutional provision, and to make the presence of counsel upon the trial a valuable right it must include a private interview with his counsel prior to the trial. "Westbrook, J., in People v. fiisley, 1 N. Y. Crim. Eep. 492. So " every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried or some judge thereof shall immediately, upon his request, assign to him such •counsel, not exceeding two, as he may desire, and they shall have free access to him at all seasonable hours." U. S. Rev. Stat. § 1031; N. Y. Code Crim. Proc. § 108; People v. Willett, 3 K Y. Crim. Rep. 51, 1 How. Pr. K S. 197. Any failure to accord this right may be shown by affidavit, and where it satisfactorily appears that further time should be allowed to perfect the defense, a continuance should be granted. Ms parte affidavits are evidence in judicial proceedings only as 6ome law has declared them to be evidence, and they are not evi- dence of any facts stated in them unless some law makes them such. Still they may be effectively employed in an application for a continuance as a basis for the motion. 11 CHAPTER XIX. EVIDENCE NECESSARY TO SECURE A CONTINUANCE. § 113. Rule the Same as in Civil Cases. 114. Right not Affected by Admissions of Opposite Party. 115. What Evidence is Necessary to Secure. 116. What Motion Papers should Prove. § 113. Rule the Same as in Civil Cases. — "The rule govern- ing applications for a continuance," said Sutherland, J., in People v. Vermilyea, 7 Cow. 369, "is substantially the same in civil and criminal cases; though in the latter the authorities all agree that the matter is to be scanned more closely, on account of the superior temptation to delay and escape the sentence of the law. . . .• In cases where the common affidavit applies, the court has no dis- cretion. The postponement is a matter of right, resting on what has become a principle of the common law. But where there has been laches, or there is reason to suspect that the object is delay, the judge at the circuit may then take into consideration all the circumstances, and grant or delay the application at his pleasure. "Where the subject takes this turn, the application ceases to be a matter of right, and rests in discretion." This doctrine seems to be borne out by the authorities. 2 Phil. Ev. Cowen & Hill's Notes, 353. § 114. Right not Affected by Admissions of Opposite Party. — Shall a party who has made out good grounds for a continu- ance, on account of the absence of witnesses, be ruled to trial upon the admission of his adversary, that his witnesses who are absent, if present would swear to the facts which he states he ex- pects to prove by them; or shall he be required to admit the fact proposed to be proven by them? The common law rule of confronting the jurors with the wit- nesses in a public, oral examination, has ever been regarded by the wisest jurists as a most invaluable rule in the ascertainment of truth. By such an examination, a party has not only the benefit of the naked fact detailed, but also the benefit of the deportment, the manner, the physiognomy, the impression, detail, and intelli- gent reasons given by his witnesses, which are calculated to force 102 EVIDENCE NECESSARY TO SECURE A CONTINUANCE. 163 conviction upon the triers, and greatly outweigh the same num- ber of witnesses on the other side. Of all these he would be deprived, if compelled to go to trial upon the naked admission that his witnesses would swear to the facts which he proposes to prove by them. Such admission, if not forgotten, would make but little impression, amid a consistent and rational detail of a similar number of witnesses, deposing, orally, to facts of a coun- teracting character. His right to bring his witnesses before the jury is a legal right, and which may be of essential advantage to him, especially in the establishment of controverted facts, and of which he ought not to be deprived. If, therefore, entitled to a continuance in such a case, he ought not to be deprived of it by any admission short of the admission of the fact intended to be proved by his absent wit- nesses. Smith v. Creason, 5 Dana, 298, 30 Am. Dec. 688; Do- mi/nges v. State, 7 Smedes & M. 475, 45 Am. Dec. 315; Goodman v. State, 1 Meigs, 195. Where the evidence discloses sufficient ground for a continu- ance, the prosecution cannot frustrate the application by stipulat- ing to admit the evidence sought to be adduced. . By constitu- tional guarantee in every state in the Union the prisoner has a right to the personal presence of witnesses in his behalf. State v. Berkley, 92 Mo. 41; State v. Parker, 13 Lea, 226. Much controversy has surged about this proposition but the dis. senting opinion of Mr. Justice Sherwood in the recent case of State v. Jennings, 81 Mo. 85, will go very far toward placing the the question beyond cavil or demur. In several jurisdictions this question is determined by statutory enactment and is granted once as matter of right. If allowed as to one joint defendant the others are entitled to the same privi- lege. Stephenson v. State, 5 Tex. App. 79; State v. Frasi r, '2 Bay, 96. But see State v. McComb, IS Iowa, 43; Thompson v. State, 9 Tex. App. 301. As to the light to a prosecution by con- tinuance, see People v. Fuller, 2 Park. Crim. Rep. 16. "Where the defendant in a criminal case reads, as the evidence of an absent witness, the statement contained in the affidavit for continuance of what the evidence of the witness would be if pres- ent, the state may contradict his testimony or impeach the witness as if he were present. And the state may offer the witness him- self to contradict such statement so read in evidence. State v. Mann, 83 Mo. 589. 161 LAW OF EVIDENCE IN CRIMINAL CASES. Where a defendant in a criminal case, offers a sufficient affi- davit for continuance, stating the facts to which the absent wit- nesses are expected to testify, it is error to refuse a continuance, even though the prosecuting attorney offers to admit, not simply that the witness would testify to the facts stated, but also, the truth of the facts stated; for the defendant has the constitutional right, to have the witnesses personally present at the trial. "Where the circuit court refuses a continuance for the insufficiency of the reasons stated in the affidavit, the court of errors would be extremely cautious and circumspect in controlling its discretion, though they entertained a clear opinion that the reasons were suf- ficient. Goodman v. State, Meigs, 195. § 115. What Evidence is Necessary to Secure. — Privilege of a postponement is an absolute right where either party can produce satisfactory reasons for the request, and although there is abundant dicta intimating that the application to postpone is ad- dressed to the sound discretion of the court, still the careful analysis of the authorities will clearly establish the fact that any arbitrary exercise of this discretion is discountenanced, and where the application is improvidently refused the appellate court will grant relief. Without attempting an extended tabulation of all the cases that have been deemed sufficient ground for postponement the follow- ing may be regarded as among the most prominent, and any evi- dence based upon one of these several grounds for a continuance is considered pertinent. (1) A disturbed and excited state of the public mind prejudicial to the accused. (2) Illness of counsel. (3) Absence of the defendant, in cases of felony. (1) Surprise at some unexpected development of the case which could not have been reasonably anticipated. (5) Want of adequate time in prep- aration of the defense. (6) Refusal to admit counsel to the jail premises for the purpose of consultation with the prisoner. In support of these propositions are cited as illustrative: Re Sheriff of New York,l AVheeler Grim. Cas. 303; Stewart v. State, 58 Ga. 577; Brown v. State, 21 Ark. 620; State v. Gross, 27 Mo. 332; People v. Kohler, 5 Cal. 72; Jackson v. Com. 19 Gratt. 65G; Gra- ham v. State, 10 Ala. 659; State v. Bertin, 21 La. Ann. 16; Clark v. State, 1 Humph. 251; Burley v. State, 1 Neb. 385; Sweeden v. State, 19 Ark. 205; People v. Perkins, 1 Wend. 91; Andrews v. State, 2 Sneed, 550; Prine v. Com. 18 Pa. 103; Shapoonmash v. EVIDENCE NECESSARY TO SECURE A CONTINUANCE. 165 United States, 1 Wash. Terr. 188; State v. Dooly, 64 Mo. 146; State v. Allen, 64 Mo. 67; Dunn v. Com. 6 Pa. 384; Sneed v. State, 5 Pike, 431; N. Y. Code Crim. Proc. § 465. When an application for an adjournment is made in good faith and upon proper facts shown, aud not for the purpose of delay, it is error at law to refuse same, and such refusal is review- able. Brooklyn Oil Works v. Brown, 38 How. Pr. 451; Onder- donk v. Ranlett, 3 Hill, 323; Ogden v. Payne, 5 Cow. 15; Hooker v. Rogers, 6 Cow. 577; People v. Vermilyea, 7 Cow. 3S3; Pulver v. Hiserodt, 3 How. Pr. 49; 2 Tidd. Pr. 708; 1 Archb. Crim. Pr. & PL 210; 1 Chitty, Crim. Law, 392; King v. B'Eon, 1 W. Bl. 510, 3 Burr. 1513; Webster v. People, 92 K Y. 422. Should it appear, however, that the evidence sought is clearly inadmissible, or is cumulative in its character the motion should be denied. Nelms v. State, 58 Miss. 362; Krebs v. State, 8 Tex. App. 1; Varnadoe v. State, 67 Ga. 768. And so proof of the pendency of a civil action against the accused or even of another indictment for the same offense is insufficient evidence upon which to base an order of continuance. Elghmy v. People, 79 N. Y. 546; Loeffner v. State, 10 Ohio St. 598. § 116. What Motion Papers Should Prove. — To sus- tain the application for a continuance the affidavit should show: (1) The material nature of the evidence sought. (2) High degree of probability that it may be secured. (3) The exercise of due diligence in the effort already made to obtain it. Hyde v. State, 16 Tex. 445, 67 Am. Dec. 632; Moody v. People, 20 111. 315; State v. Bennett, 52 Iowa, 724; State v. Hagan, 22 Kan. 490; Blige v. State, 20 Fla. 742; McBermott v. State, S9Ind. 187; People v. Francis, 38 Cal. 183; State v. Gray, 14 JSTev. 212, 7 Crim. L. Mag. 84; People v. Vermilyea, 7 Cow. 369; State v. Files, 3 Brev. (S. C.) 304; 1 Tread. (S. C.) 234; Wray v. People, 78 111. 212; State v. Smith, 8 Pdch. L. 460; State v. Lange, 59 Mo. 418; Mackey v. Com. 80 Ky. 345, 4 Ky. L. Rep. 179; People v. Ah Yute, 53 Cal. 613. The case of King v. D'Eon, 1 W. Bl. 510 and 3 Burr. 1513, is a leading case on this subject, and contains the principles above formulated which have since prevailed in relation to a continu- ance. Lord Mansfield says in that case, "three things are neces- sary to put off a trial: 1. That the witness is really material, and appears to the court so to be. 2. That the party who applies has 1GG LAW OF EVIDENCE IN CRIMINAL CASES. been guilty of no neglect. 3. That the witness can be had at the time to which the trial is deferred." Wilmot, J., said that the rule is the same in criminal and civil cases; and Yates, J., said, whatever indulgence the law gives to defendant in civil cases, it ought, a fortiori, to give in criminal. Where the application for a continuance is made in good faith and is based upon evidence of proper facts which go to negative the theory of mere captious delay it is reversible error to refuse it. Brooklyn Oil Works v. Brown, 38 How. Pr. 451; Ortder- donTc v. Ranlett, 3 Hill, 323; Ogden v. Payne, 5 Cow. 15; Pulver v. Eiserodt, 3 How. Pr. 49; 2 Tidd, Pr. 708; 1 Archb. Grim. Pr. & PI. 210; Chitty, Crim. Law, 492; King v. UEon, 1 W. PI. 510; 3 Purr. 1513. But if there are suspicious circumstances attending the appli- cation, then the court will require the party to be more minute in stating the circumstances and facts upon which the application rests. This general rule is found in books of practice both civil and criminal 2 Tidd, Pr. 70S; 1 Archb. Crim. Pr. & PI. 210; 1 Dunl. 580, 587; 1 Chitty, Crim. Law, 492. CHAPTER XX. VARIANCE, IDEM SONANS. § 117. TJie Term Variance Defined. 118. Proofs and Allegations must Correspond. 119. General Rule of Criminal Pleading Stated. 120. Illustrations of these Hides. 121. Only Material Variance will be Regarded. 122. Wlien Variance between Indictment and Proof will Call for Amendment. 123. The Doctrine of Idem Sonans Stated. 124. Instances of Immaterial Variance in Name. 125. Extended Tabulation of the Cases from Rapelje's Criminal Procedure. § 117. The Term Variance Defined. — Variance has been defined as a disagreement between the allegation and the proof in some matter which, in point of law, is essential to the charge or claim. House v. Metcalf, 27 Conn. 638; State v. Wadsworth, 30 Conn. 57; Reiser v. Topping, 72 111. 229. § 118. Proofs and Allegations must Correspond. — Undoubt- edly, the rule is that the proofs must correspond with the allega- tions in the declaration, but the requirement in that behalf is fulfilled, if the substance of the declaration is proved. Nash v. Towne, 72 U. S. 5 Wall. 689, IS L. ed. 527. The North Carolina supreme court has decided, that where there is a variance between the allegation and proof in a criminal proceeding, its effect is to vacate the verdict, but leaving the prisoner liable to re-trial. State v. Sherill, 82 N. C. 694. Where it appears that a party is as well known under his alias name as under his real name, a variance in names will be disre- garded. Ehlert v. State, 93 Ind. 76; Hunter v. State, 8 Tex. App. 75. And it has been held, that where a statute of limitations imposes a specified time within which a criminal prosecution must be instituted, a variance as to the time in which the offense is com- mitted is immaterial, provided the time alleged in the indictment and that proved at the trial, are both within the statutory limita- tions. State v. Bell, 49 Iowa, 440. 167 168 LAW OF EVIDENCE IN CRIMINAL CASES. § 119. General Rule of Criminal Pleading Stated. — It is a general rule of criminal pleading that material allegations must be proved, and that if an allegation need not be proved, it is not material. State v. Porter, 38 Ark. 637. The proof must always correspond with the charge in the indictment ( United States v. Barton, 6 McLean, 46) even though the offense is set out with greater particularity than is required; nothing connected with the offense can be disregarded as surplusage. United States v. Brown, 3 McLean, 233. "Where an offense is susceptible of commission in more than one way, it must be proved to have been committed in the particular way charged, and in no other way. Kennedy v. State, 9 Tex. App. 399. The precise offense charged, and no other, must be proved. Rapalje, Crim. Proc. § 107. § 120. Illustrations of these Rules. — A distinction obtains as to those variances occasioned by the proof and the context or recitals of an enactment or even of a contract. Variance under such conditions must be regarded as fatal. Butler v. State, 3 McCord, L. 383. "Where the prosecutor states the offense with greater particu- larity than he is bound to do, the proof must correspond with the averments. That cannot be regarded as surplusage, which is con- nected with the offense. United States v. Brown, 3 McLean^ 233. Thus, in an indictment charging the defendant with having in his custody and possession, with intent to sell the same, " one pint of adulterated milk, to which milk water had been added," the allegation is descriptive, and is not supported by proof that the milk in question was adulterated by adding water to pure milk. Com. v. Luseomb, 130 Mass. 42. The rules of pleading are the same in civil as in criminal actions. In Jerome v. Whitney, 7 Johns. 321, the court held that if the plaintiff in his declaration on a note for value received, instead of stating generally that it was given for value received, sets forth specially in what the value received consisted, he is bound to prove the particular value according to the averment, and the general knowledge of value in the note is not sufficient to support the declaration. So in United States v. Porter, 3 Day, 283, it was- held, that where in an indictment for stopping the mail, the contract of the carrier of the mail with the postoffice department, was set out, it must be proved. And where an indictment for burglary VARIANCE, IDEM SONANS. 1G9 1 in the house of J. D. with intent to steal the goods of J. "W". it appearing that J. A\ r . had no property there, it was held material to state truly in whom the property of the goods was. In 1 Chitty, PI. 263, it is said, That if however the matter un- necessarily stated be wholly foreign and irrelevant to the cause, SO' that no allegation whatever on the subject was necessary, it will be rejected as surplusage. If the prosecutor choose to state the offense with greater particularity than is required by the statute, he will be bound by the statement, and. must prove it as laid. Bex v. Dawli?i, 5 T. R. 311; United States v. Brown, 3 Mc- Lean, 233. § 121. Only Material Variance will be Regarded. — A vari- ance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense. Abbott, Trial Brief, § 680. This entire subject of variance has received direct illumina- tion from a recent decision of the New York court of appeals. Mr. Justice Earl, writing for affirmance and voicing the unani- mous opinion of his associates says : " It is also claimed that there was a false variance between the indictment and the proof, in that the indictment alleges that Harris swore before the fire marshall that there were 60,000 cigars in the building at the time of the fire, whereas the proof showed that he swore that there were 65,000. This objection was in no form made at the trial, and therefore cannot avail here. If it had been made, the evi- dence as to that item could have been excluded or waived, or the judge could have instructed the jury to disregard the evidence and that there would have been still enough to uphold a convic- tion. The variance was as to the one of a number of distinct items as to which Harris was charged with swearing falsely, and if the jury had found that he swore falsely as to the other items, or as to anyone of them, a verdict of guilty would have been proper. Where an indictment charges that the prisoner has stolen a num- ber of articles, or has inflicted a number of blows, or has obtained goods by a number of false pretenses, or has sworn falsely in an affidavit as to several facts, it is not necessary to prove all that is charged. It is sufficient to prove enough to make out the offensi charged. 3 Russell, Crimes (4th London ed.) L05; Reg.v.Jihodes, 2 Ld. Raym. SS6; 3 Starkie, Ev. 860; Tomlinson's Case, 1 I Hall Rec. 125; Roscoe, Crim. Ev. (6th Am. ed.) 763. . . , 170 LAW OF EVIDENCE IN CRIMINAL CASES. v " The strictness of the ancient rule as to variance between the proof and the indictment has been much relaxed in modern times. Variances are regarded as material, because they may mislead a prisoner in making his defense, and because they may expose him to the danger of being again put in jeopardy for the same offense." Harris y. People, 64 K Y. 148. § 122. When Variance between Indictment and Proof will Call for Amendment. — If there be a variance between the indictment and the evidence brought forward to sustain it, the •courts, on application, will amend the indictment, as in the fol- lowing instances: where the variance is in the setting out of any matter in writing, or in print, or in the name of any county, city, town, parish, etc., or in the name of the owner of any property which is the subject of the indictment, or in the name of any per- son injured, or intended so to be, by the offense charged, or in the name of any person mentioned in the indictment, or in the "name or description of any matter or thing whatsoever therein named or described," or in the ownership of property therein named or •described. But there are some cases of variance where an amendment is not necessary. Upon an indictment for embezzlement, if the evi- dence prove a larceny, the jury may acquit the prisoner of the embezzlement and find him guilty of simple larceny, upon an indictment for obtaining goods or money under false pretenses; if the evidence prove a larceny, the defendant, notwithstanding, may be convicted of false pretenses; upon an indictment for a misdemeanor, if the evidence prove a felony, the defendant shall not, on that account, be acquitted, unless the court think proper to discharge him from that indictment, and order him to be prose- cuted for the felony. Archb. Crim. Pr. & PI. 124. § 123. The Doctrine of Idem Sonans Stated.— There is a rule of growing importance by which courts, for many years, have evinced, by their decisions, a disposition to recede from the fading adherence to common law technicalities, and hold rather to sub- stance than mere form. Modern decisions conform to the rule that a variance, to be material, must be such as to mislead the opposite party to his prejudice, and hence the doctrine of idem sonans has been much enlarged by modern decisions, to conform to the above salutary rule. The law does not treat every slight variance, if trivial, such as the omission of a letter in the name, as VARIANCE, IDEM SONANS. 171 fatal. The variance should be a substantial and material one to be fatal. Harris, Identification, § 139; Trimble v. State, 4 Blackf. 435; Stevens v. Stehhins, 4 111. 25. Courts are not fastidious in enforcing absolute precision in regard to orthography. Names admitting of the same pronunci- ation are often made up of very different letters. In these cases, a mistake of one mode of spelling for another is unimportant, •even in an indictment. The public prosecutor is not bound to ascer- tain the particular letters used by the accused in writing his name, for this might often be impracticable. But where the orthography of the indictment composes a name which by the ordinary rules •of pronunciation produces a different sound from the true one, the mistake will be fatal. The doctrine of idem son arts is too well established to be dis- regarded. If the name as laid in the indictment, and the name proven on the trial, were of the same sound, then there is not a fatal variance, although the two names may have been spelled slightly different. Donnel v. United States, 1 Morris (Iowa) 141, •39 Am. Dec. 457; Parchman v. State, 2 Tex. App. 228; Schooler v. Asherst, 1 Litt. (Ky.) 210; Barnes v. People, 18 111. 52; Rex v. Tannett, Russ. & R. 351; Rex v. Shakespeare, 10 East, 83; Com. v. Gillespie, 7 Serg. & R. 479; Swails v. State, 7 Blackf. 324. § 124. Instances of Immaterial Variance in Name. — It is held to be an immaterial variance where the words may be sounded alike, without disturbing the power of the letters found in the variant orthography. Adams v. State, 67 Ala. 89. See Rice, Annotated Colo. Code, Civ. Proc. title Idem Sonans. In a recent Texas case Judge Willson says: "Hix Nowels" and "Hicks Nowells" are idem sonans, and the court did not err in its charge to the jury in disregarding the difference in the •orthography of the name, and in omitting to submit to the jury for their determination whether or not the name as spelled in the indictment was the same as that proved on the trial. There was no room for doubt upon this question, and the court might well assume that the names were identical. If there had been any doubt as to whether the names were idem sonans, it would have been proper, and perhaps essential, to have submitted the question to the jury. Henry v. State, 7 Tex. App. 388; Spoonemore v. State, 25 Tex. App. 35S. 172 LAW OF EVIDENCE IN CRIMINAL CASES. The law docs not treat every slight and trivial variance, such a& the omission of a letter, as fatal. The variance should be a sub- stantial and material one, such as would render the instrument offered in evidence a different and distinct instrument from the one described in the petition, to authorize the court to exclude it from the jury on the ground of variance. The rule of idem soncms, when strictly adhered to, is considered too rigid, and has been much relaxed in modern practice. Stevens v. Steblins, 4 111. 25. It is claimed that mere identity of sound is a surer method of designating the names of persons than that of depending upon mere identity in the orthography. Ahiibol v. Beniditto, 2 Taunt. 401; Myer v. Fegaly, 39^ Pa. 429. If the sound of a name idem sonans be not affected by a mis- spelling which occurs, such error is immaterial, and any two names being alike in original derivation and used interchangably, though different in sound, do not, by the use of either, constitute a ma- terial variance. 2 Rolle, Abr. 135; Bacon, Abr. title Misnomer. The doctrine of idem sonans should not be too rigidly enforced. The principal question in all cases should ask as to the materiality of the variance. Belton v. Fisher ; 44 111. 32. And this is always- a question of fact, to be determined by the jury. In the case of foreign names, courts are reluctant to pronounce that a variance which in most instances is a simple misspelling, or the result of a mispronunciation shall affect vested rights honestly acquired. In an early case the supreme court of Illinois has held, where ma- terial variance was claimed in the names of a conveyance that Michael Allen, named in a deed as grantor was, presumptively,. Michael Allaine, grantee of the same property as, also, that Oto- ine Allaine was, presumptively, Antoine Allaine. Chiniguy v. Catholic Bishop of Chicago, 41 111. 148. The missioning of a defendant's name in a summons is no ex- cuse for non-appearance to defend, especially where it appears that the name "Butler" was written "Bulter." Knowing there is a suit against himself, defendant is held bound to appear. Iler- mann v. Butler, 59 111. 225. The rule is, that if the distinction in the pronunciation of the names is indistinguishable in ordinary conversation, the doctrine of idem sonans applies. Barnes v. People, IS 111. 52. The po- sition contended for is sustained by a Maine decision which holds VARIANCE, IDEM SONANS. 173 that, although the surname of a party defendant has been spelled in seven different ways in the course of a judicial proceeding, the names were all idem sonans and sufficiently identified the defend- ant. Millett v. Blake, 81 Me. 531. § 125. Extended Tabulation of the Cases from Rapalje's Criminal Procedure. — Mr. Rapalje in his well known work on Criminal Procedure at Section 83, tabulates a series of cases that have been decided upon this interesting topic. The section is reproduced in this connection as affording by far the most lumin- ous exposition of this subject to be found in any of the text-books early or late. The rule as to the materiality of variances between the name as stated in the indictment and as proved on the trial, is that the mere misspelling of a name, whether of the accused or of a third person, is not fatal to the indictment, unless the difference causes .a material change in the pronunciation of the name; whether it •does or not is, on the trial of the general issue, a question for the jury and not for the court ( Underwood v. State, 72 Ala. 220. But see as to the last point, Com. v. Biggs, 14 Gray, 376, 77 Am. Dec. 333) or where the court does pass upon it, a stringent con- struction will not be applied. Foster v. State, 1 Tex. App. 531. Thus "Mary Etta" is idem sonans with "Marietta," Goode v. State, 2 Tex. App. 520; "Hutson" with "Herdson," State v. Hut- son, 15 Mo. 512 (a strange conclusion); "Owens D. Havely" with "Owen D. Haverly," State v. Havely, 21 Mo. 198; "Blankenship" with "Blackenship," State v. BlanJcenship, 21 Mo. 504 (one judge dissenting); "George "Washington Bank" with "Geo. Washington Bank," Patterson v. People, 12 Hun, 137; "'Chin Chan" with "Chin Chang," Wells v. State, 4 Tex. App. 20; and "McLaugh- lin" with "McGlofin," McLaughlin v. State, 52 Ind. 476. On the other hand, the following among others have been held not to be idem sonans: "Spintz" and "Sprintz," United States v. Spintz, 18 Fed. Eep. 377; "Clements Turner" and "Turner Cle- ments," Clements v. State, 21 Tex. App. 25S; "Tarpley" and "Tapley," Tarpley v. State, 79 Ala, 271; "Kinney" and -.Me Kin- ney," Kinney v. State, 21 Tex. App. 34S; "Donald" and "Don- nell," Bonnell v. United States, 1 Morris (Iowa) 141, 39 Am. Dec. 457; "Mincher" and "Minshen," Adams v. State, 67 Ala. 89; "Abie Burgamy" and "Avie Burgamy," Burgamy v. State, 4 Tex. App. 572; and "Wood" and "Woods," Neid&rluck v. State, 174 '" LAW OF EVIDENCE IN CRIMINAL CASES. 21 Tex. App. 320. Some of these decisions are unsatisfactory,, notably a North Carolina case, where "Willis Fain" was held to be idem sonans with "Willie Fanes," State v. Hare, 95 1ST. C. 6S2; but no doubt "Chatam Bank" is idem sonans with "Chatham Bank." Both v. State, 10 Tex. App. 27. Where the name "George J. Farley" appeared four times in an indictment which went on to allege an intent to kill said "Frank I. Farley," it was- held proper to instruct the jury that if this was clearly a clerical error and not prejudicial to the accused, it was not a fatal vari- ance. State v. McCunniff, 70 Iowa, 217; State v. Ford, 38 La. Ann. 797. So, where on the separate trial of one for a joint of- fense with one "Land," it appeared the latter' s name was "Lance," but there was no doubt as to his identity, the variance was deemed immaterial. Davenport v. State, 38 Ga. 184. But where an in- dictment gave the name of the injured person as "McKasky," "McKlaskey," and "McKloskey," and the proof showed its proper spelling to be "McCoskey," the conviction was set aside. Black v. State, 57 Ind. 109. So an indictment charging a trespass upon land in possession of A, is not supported by proof of a trespass upon land in possession of B. State v. Sherrill, 81 N. C. 550. And a charge that an affidavit was sworn to by J. N. P. is not supported by proof that J. P. signed it. Pickens v. State, 6 Ohio, 274. But a misnomer is fatal only when it is of a party whose existence is essential to the offense charged. United States v. Howard, 3 Sumn. 12. A variance is not now regarded as material unless it is such as i night mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense. Ab- bott, Trial Brief, § 680. Citing inter alia Earl, J., in Harris v. People, 64 K Y. 148. CHAPTER XXL VIEWING THE PREMISES. § 12G. View Regulating the Statute. 127. Theory of Mr. Wharton. 128. New York Code Provisions. 129. The Views of the New York Supreme Court. 130. Vigorous Opposition to the Views Last Cited. § 126. View Regulated by Statute. — In criminal cases it appears that the jury are not permitted to view the premises where the crime was alleged to have been committed, unless it is authorized by statute. It was not permitted by the common law, because the jury could not or should not act on the case except upon information received by the evidence given in court. The question was presented in a murder trial in Massachusetts in 1829, and it was refused, though moved for by the prisoner and and consented to by the attorney general. But on the second trial of the same case, the jury made the request that they be permitted to see the place of the murder, and both parties con- sented, and the court hesitated, but finally granted the request, " Because," the court said, " this course was without precedent, and if it should turn out to be incorrect, they had doubts whether they could hold the prisoner to his consent." And in this case, the court directed that no person should go with the jury except the officers having them in charge, and that no person should speak to them under penalty of a contempt. Plans were exhibited and explained to the jury in court, and they were permitted to take them with them to aid them in making the view. Harris. Identification, § 5S1; Com. v. Knapp, 9 Pick. 515, 20 Am. Dec. 491. See Mass. Eev. Stat. chap. 137, § 10. The rule still holds that in criminal trials a view of the prem- ises will seldom be permitted in the absence of statutory enact- ment authorizing it. § 127. Theory of Mr. Wharton.— Mr. Wharton says : " The practice which obtains in civil suits, in permitting the jury to visit the scene of the res gestce is adopted in criminal issues whenever such a visit appears to the court important for the elucidation of 175 176 LAW OF EVIDENCE IN CRIMINAL CASES. the evidence. The visit, however, should be jealously guarded, so as to exclude interference by third parties, and should be made under sworn officers. Such view may be granted after the judge has summed up the case. But where only a part of the jury visited the premises, and this after the case was committed to the jury for their final deliberation, this was held ground for a new trial. The visit also must be made in the presence of the accused, who is entitled to have all evidence received by the jury, taken in his presence." 3 Whart. Am. Crim. Law (7th ed.) p. 151, § 31G0. § 128. New York Code Provisions. — When, in the opinion of the court, it is proper that the jury should view the place in which the crime is charged to have been committed, or in which any material fact occurred, it may order the jury to be conducted, in a body, under charge of proper officers, to the place, which must be shown to them by a judge of the court, or by a person appointed by the court for that purpose. The officers must be sworn to suffer no person to speak to or communicate with the jury, nor to do so themselves, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a .specified time. Cook's N. Y. Code, Crim. Proc. §§ 411, 412, cit- ing Abbott, Trial Brief, 72-74, 26 Cent. L. J. 436; People v. Johnson, 110 K Y. 143, 46 Hun, 673; People v. Buddensiek, 103 K Y. 501, 57 Am. Eep. 766; People v. Oyer & Terminer, 36 Hun, 279, 3 K". Y. Crim. Rep. 215; People v. Tyrrell, 3 K Y. Crim. Eep. 142; People v. Pahner, 43 Hun, 407, 5 N. Y. •Crim. Rep. 106, disapproving Shular v. State, 105 Ind. 289, 55 Am. Rep. 211. § 129. The Yiews of the New York Supreme Court. — The vigorous contention that has serged around a very recent case ad- monishes me to illustrate this topic by a careful reference to what that case decides. The defendant had been indicted for an assault, and the substance of the charge was, that he had shot at and wounded one Ira Gray, at a saloon in the town of Catskill, JST. Y. The trial was before the Green county oyer and terminer, and upon the aj^plication of the defendant's counsel, the county judge decided to allow a view of the. premises by the jury, the judge and two officers of the court; but refused to allow the defendant •or his counsel to accompany them. To this extraordinary ruling, the defendant's counsel naturally excepted. On a review had in VIEWING THE PREMISES. 177 the general term, the opinion written by the presiding justice states the conclusions of the court in language that is apt to crystallize itself as the law governing such cases for the future. In view of the importance of this subject and the frequency with which the jury are asked to inspect the premises where crime is alleged to have been committed, I shall make an extended quotation from the opinion which was concurred in by Judge Bockes. The case will be found reported in 43 Hun, 397, under the title of People v. Palmer : " Was evidence given to the jury in this case, in the absence of the prisoner ? One member of the court and two officers, went out from the court room. The two other members of the court and the prisoner and his counsel remained. The prisoner asked to accompany the jury, but this was refused. On returning, the member of the court who had gone with them stated that the jury had been up to the saloon; that the jury had not been allowed to communicate with one another, or hold any conversation w T ith any person outside. "The view of the place was itself evidence. It might be very important for the jury to know the size of the room. For instance, the defendant might have testified that the room was not more than ten feet long, and that the complainant, standing at one end, had struck with a stick the defendant, standing at the ■other. The jury may have been shown a room twenty feet long. And the length of the room would tend to discredit defendant's testimony, and would be material evidence whether the affray arose as defendant claimed. "It is not an answer to this argument to say that there could be no doubt as to the size of the room by those who were allowed to see it; because the principle is not that no evidence, true or false, shall be so given. Hence, if the size and appearance of the room tends in any way to bear upon the question of the defendant's guilt or innocence, it is evidence, and must not be given to the jury in his absence. Bullet holes and splashes of blood might be in the room, and their position might bear strongly on the guilt or innocence of the prisoner. In this very case importance seems to have been attributed to the existence, or non-existence, of a bullet hole aft a certain place in the room. If it would have been evidence to testify that there was such a bullet hole, then it was giving evidence to show to the jury the bullet hole itself. "But again, either by words, or by gestures, or by the mere fact 12 178 LAW OF EVIDENCE IN CRIMINAL CASES. that they were taken to a certain room by the officers and the member of the court, the jury were informed that that room was the place where the affray happened. Now, in the first place, this was un- sworn evidence. No one stated to them under oath that that was- the place of the affray. If on a trial any articles are to be exhibited to the jury, as, for instance, the clothes of a murdered man, the pistol of the murderer, and the like, before they can be given in evidence proof must be given in respect to them. Some one must, on oath, identify them as being what they are alleged to be. But there was no identification of the room shown to the jury. Did anyone testify before the jury, ' This is the saloon % ' If so, then that evidence was given in defendant's absence; if not,, then the room was shown without identification by sworn testi- mony. But, in the next place, the defendant had has no opportunity of denying that the room shown was that saloon. What knowl- edge has he as to the place to which the jury were taken ? They may have been taken to another room distant from the place of the affray. He has no means of knowing where they went. "Suppose it were in dispute whether the affray occurred in one room or in another of a house. Can it be permitted that the jury shall be shown by two officers and one member of the court, in the defendant's absence, such room as they may think best to exhibit, and that the defendant shall thus be kept in ignorance what room was so exhibited? For, unless the defendant is pres- ent, he cannot know what room was exhibited. Could the alleged clothes of a murdered man, or the alleged pistol of the murderer, be exhibited to a jury at some place outside of the court room and in the absence of the defendant ? If the defendant had been pres- ent, he might have denied that the room exhibited was the place of the affray. He might have called witnesses to show this. But, as it is, he cannot, because he does not know what room was exhibited. True the judge who accompanied them said, on his return, that they had been taken to the saloon of Hallenbeck Brothers. But how did the defendant know what place the judge and the two officers believed to be that saloon?" So it has been held no error for the jury to make a view of the place where a felony is claimed to have been committed, under the order of the court and in charge of the sheriff, where the privilege is awarded the accused to accompany the jury, though he may refuse to attend the view. Bhjtlie v. State, 47 Ohio St. 234. VIEWING THE FKEMISES. 179 § 130. Vigorous Opposition to the Views last Cited. — The elucidations of the Palmer case will favorably impress the prac- titioner with the entire equity of the practice outlined, and it is certainly matter of surprise to find that the conclusions stated are under the judicial displeasure of several courts of high repute — notably that of Indiana. Judge Elliott in Shular v. State, 105 Ind. 294, 55 Am. Rep. 211, says: "It cannot be seriously doubt- ed that evidence can only be delivered to a jury in a criminal case in open court, and, unless there is a judge, or judges, present, there can be no court. The statute does not intend that the judge shall accompany the jury on a tour of inspection; this is so obvi- ous that discussion could not make it more plain. The jury are not, the statute commands, to be spoken to by any one save by the officer and the person appointed by the court, and they are forbidden to talk upon the subject of the trial. It is the duty of the jurors to view the premises, not to receive evidence, and nothing could be done by the defendant, or by his counsel, if they were present, so that their presence could not benefit him in any way, nor their absence prejudice him. The statute express- ly provides who shall accompany the jury, and this express pro- vision implies that all others shall be excluded from that right or privilege. It is quite clear from these considerations, that the statute does not intend that the defendant or the judge shall accompany the jury, and it is equally clear that the view obtained by the jury is not to be deemed evidence. " Turning to the authorities we shall find our conclusion well supported. The statute of Kansas is substantially the same as ours, except that it does not require the consent of all the parties, and in a strongly reasoned case it was held that it was not error to send the jury, unaccompanied by the defendant, to view the premises where a burglary had been committed. Brewer, J., by whom the opinion of the court was prepared, said, in speaking of the statute: 'Nothing is said in it about the presence of the defendant, the attorneys, the officers of the court, or the judge. On the contrary, the language seems to imply that only the jury and officer in charge are to be present. The trial is not tempo- rarily transferred from the court-house to the [dace of view. They are 'to be conducted in a body' 'while thus absent.' This means that the place of trial is unchanged, and that the fury, and the jury only, are temporarily removed therefrom. Just as when ISO LAW OF EVIDENCE IN CRIMINAL CASES. the case is finally submitted to the jury, and they retire for delib- eration, there is simply a temporary removal of the jury. The place of trial is unchanged. And whether the jury retire to the next room, or are taken to a building many blocks away, the effect is the same. In contemplation of law the place of trial is not changed. The judge, the clerk, the officers, the records, the par- ties, and all that go to make up the organization of the court remain in the court room.' State v. Adams, 20 Ivan. 311. "The keenest scrutiny will disclose no infirmity in this reason- ing, and it is in close agreement with that of our own court. In Jejfersonville, M. & I. R. Co. v. Bowen, 40 Ind. 515, this court overruled the case of JSvansville & C. S. L. B. Co. v. Cochran, 10 Ind. 560, and adopted the views of the supreme court of Iowa, expressed m Close v. Samm, 27 Iowa, 503. That court, in speaking of a statute similar to ours, said: 'It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the wit- nesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party.' The doctrine of Close v. Samm, supra, was again expressly approved in Heady v. Yevay, M. S. <& V. Transp. Co. 52 Ind. 117, and it was said: 'It results that the impression made upon the minds of the jurors does not constitute a part of the evidence in the cause.' The case of Jeffersonville, 2f. & I. JR. Co. v. Bowen, supra, was approved in Gagg v. Vet- ter, 41 Ind. 228, 13 Am. Rep. 322, and in Indianapolis v. Scott, 72 Ind. 196. In the case last cited it was said: 'Perhaps, strict- ly speaking, the jury had no right to do anything more than to view the premises, thereby to enable them the better to apply the evidence given upon the trial.' " The jury are simply to gain assistance in applying the evidence, and not to find new evidence, by viewing the premises, and the rule best supported by reason, therefore, if not by the weight of authority, would seem to be that the presence of the accused is not necessary upon such an occasion. Shular v. State, 105 Ind. 290, 55 Am. Rep. 211. Against the authority of this case must be set the opinion of Judge Barrett previously noticed. CHAPTER XXII. OPENING AND CLOSING THE CASE. § 131. Object of. 132. Extent to wliicli Counsel may go in Opening. 133. Duty of the Respective Counsel in Closing the Case. 134. Arguing from Facts not in Evidence. § 131. Object of. — The object of an opening of a case to the jury is to state, briefly, the nature of the action, the substance of the pleadings, the points in issue, the facts and circumstances of the case, and the substance of the evidence to be adduced in its support. The counsel for the plaintiff, in opening, may also state the nature of the defense, if it appears upon the record. But further than this, he ought not to go, it seems. Each party should be confined to a legitimate and proper opening of his own case; the plaintiff's counsel to a statement of his cause of action, and the defendant's counsel to a statement of his answer to the plain- tiff's case, and the evidence he proposes to give to sustain it; and in such opening should not comment, in the way of summing up, after the English manner, upon the plaintiff's evidence, any fur- ther than is essential to a proper understanding by the jury of the defendant's evidence. Ay vault v. Chamberlain, 33 Barb. 229. § 132. Extent to which Counsel may go in Opening. — The extent to which counsel may go, in opening a case to a jury, can- not, in the nature of things, be regulated by precise rule. The court may doubtless interfere in the interest of justice to restrain undue license on the part of counsel in addressing the jury. It might perhaps be its legal duty to interfere, in a criminal case, where a prosecuting officer, under the guise of opening the case to the jury, should seek to prejudice them by the recital of facts proposed to be proved, which would be manifestly incompetent, if offered in evidence. See State v. Bateman, 52 Iowa, 604; State v. Meshek, 61 Iowa, 316; State v. Eonig, 78 Mo. 249; Mo- rales v. State, 1 Tex. A pp. 494, 28 Am. Rep. 411); Peoplev. A'./ ley, 94 N. Y. 526; Kizer v. State, 12 Lea, 564; State v. Eoyt, 47 1 8 1 182 LAW OF EVIDENCE IN CRIMINAL CASES. Conn. 518, 36 Am. Rep. 89; State v. Collins, 70 N. C. 241, 16 Am. Rep. 771. In Scripps v. Reilly, 38 Mich. 10, the opinion of Mr. Justice Graves ventilates the subject under review in the following lan- guage: "There is no doubt of the right of this court to revise in such a case as this. If the trial court may pursue any course it pleases in relation to the opening statement, if it may act inde- pendently of all control, then the idea of a rule to be prescribed by this court, under the constitution and legislative enactment, for its guidance and government, is preposterous and absurd. But the point is too plain for argument. This court will not revise such matters unless there is plain evidence of action amounting to what is called an abuse of discretion, and calculated to injuriously affect the legal rights of a party; and where such is the case, whether the result of accident, or inadvertence, or misconception, it will take cognizance. The error in this case was not cured, and is one subject to review, and is sufficient to require a reversal." Since the decision of the case of Scripts v. Reilly, supra, an impression seems to have prevailed that the opening statements of counsel might be challenged step by step, and questions of rel- evancy and materiality of evidence raised and considered, and even argued at length, on counsel stating what he proposed to prove. Under this impression the practice of interrupting counsel, and demanding the judgment of the court on the competency of what he proposed to show, has in some cases been carried to extraordi- nary lengths, and elaborate arguments had been indulged in over the question whether counsel should be suffered to make certain statements of proposed evidence to the jury. Any such practice is a great abuse, and in a desperate criminal case might be resorted to for the purpose of defeating the ends of justice, by breaking the force of a connected statement of the case to the jury, and by prolonging the trial until the trouble and expense should dis- hearten the authorities, and result in a relaxation of effort for conviction. The cases must be rare in which counsel would be justified in interrupting the opening of his antagonist to raise questions of competency; and when he does so, the questions ought to be disposed of summarily, and without argument. A very clear case of abuse however would justify the court in inter- rupting and restricting the counsel's opening, {Porter v. Throop, 47 Mieh. 313; People v. Wilson, 55 Mich. 506) for as a general OPENING AND CLOSING THE CASE. 1S3 rule the interference of the court with counsel, when opening a case to a jury, is a matter of discretion, the exercise of which is not the subject of exception. Walsh v. People, 88 1ST. Y. 458. § 133. Duty of the Respective Counsel in Closing the Case. — The presiding judge should rigidly insist that the respect- ive attorneys in a criminal case, should confine themselves to the facts developed by the evidence in summing up the case to the jury. Where, however, either side, through inadvertence, has alluded to an alleged state of facts not warranted by the evidence, it is proper to allow some reply — the extent of the explanation is largely within the discretion of the court. People v. Mitchell, 62 Cal. 411; Gross v. State, 68 Ala. 476; Ferguson v. State, 49 Ind. 33; Greene v. State, 17 Tex. App. 305; Beeves v. State, 84 Ind. 116. A frequent illustration of the principles suggested in the fore- going text is the comment as to the failure of either side to place & person on the stand who has been regularly subpoenaed. This practice stands condemned; and the court should promptly sup- press the least allusion to it. State v. Jones, 77 jST. C. 520. In Blackman v. State, 78 Ga. 596, the accused answering to an indictment for murder, before the impanelling of the jury made & motion for a postponement of the case on the ground of material testimony not then available. The parties were subpoenaed; but during the progress of the trial they were not examined. The prosecuting attorney in summing up the case to the jury com- menting upon this fact began a sentence which the court promptly suppressed. On review, the appellate court reversed the judg- ment, holding that the trial court should not only have arrested the remark, but should have expressly instructed the jury to dis- regard it. The following suggestive language will the better in- dicate the juridicial view. ''This defendant had made a motion to continue this case for the absence of certain witnesses, by whom he expected to prove that he was not near the scene of the homi- cide at the time it took place. These persons appeared, but he failed to introduce them. This motion was made before the jury was empanelled, and was probably made in writing, or, if made orally, there was no evidence of it before that jury; and it was certainly a very damaging circumstance to allow counsel to pro- ceed and argue the guilt of the prisoner from his failure to pro- duce these witnesses; and when the court's attention was called to 184 LAW OF EVIDENCE IN CRIMINAL CASES. this subject, he should have promptly reproved the proceeding and admonished the jury that it was improper, and that they should give it no attention; but this lie seems to have declined. Unless this was a case of circumstantial evidence so strong as to imperatively demand the finding the jury made, we can easily see how injury, and great injury, might have resulted to this defend" ant from such a course of proceeding. The defendant may be guilty, and may have been proven to be gnilty, but his guilt could be established only by legal testimony properly introduced to the jury by witnesses with whom he was entitled to be confronted. Has the defendant had a fair trial with none but legal testi- mony before the jury ? We think not; we cannot undertake to say what influence the circumstances improperly insisted upon in the argument may have had upon the jury; and a new trial is therefore granted." Misstatements of the testimony in summing up, do not of them- selves constitute error especially if promptly corrected by the court; nor do illogical inferences from the facts in evidence. Ab- bott, Trial Brief, § 713, citing People v. Bamhart 59 Cal. 381, 402; Shular v. State, 105 Ind. 289, 55 Am. Eep. 211. Kor is an erroneous statement of the evidence made by counsel to the jury, such error as will warrant the granting of a new trial. It would be strange if it was. It often occurs that counsel do not agree as to what the testimony is. Indeed, it rarely happens that they do. It is for the jury to determine that question. People v. Bamhart^ supra. The over nourished zeal of counsel displayed in attempts to secure conviction for crime, frequently calls for condemnation on the part of the appellate court, especially when in the closing argument to the jury the attorney for the state travels outside the evidence for his facts or indulges in truculent abuse of the accused. A suggestive illustration of this error is afforded in a case reported in Colorado in 18S5. The defendant had aj)pealed, alleging as- reversible error comments by the state's attorney entirely unwar- ranted by the evidence, and this despite the admonition of the presiding judge. To such an extent had this error prevaded the record that the Attorney General, Hon. Theodore H. Thomas, refused to present the case and suggested that the court should set aside the verdict, which was accordingly done. Smith v. People, S Colo. 457. In the course of an opinion delivered by the supreme court of OPENING AND CLOSING THE CASE. 185- California in a very remarkable criminal case, this paragraph oc- curs which will be found apt in this connection. The conduct of the assistant district attorney in proposing to read to the jury, during his argument, a paper which had not been introduced in evidence, and in asserting that it contained the record of defendant from the chief of police of Chicago, was inexcusable and reprehensible. We think, however, that, so far as the defendant's interests were concerned, no prejudice resulted from his violation of professional duty, for it was promptly re- buked by the court at the time, and the following instruction was- thereafter given: "In weighing the evidence in this case, it is important that you should bear constantly in mind that statements of fact made by counsel, whether in examination of witnesses or in argument of the facts so stated, are not in proof, are not in evidence, and are to be discarded from your consideration." Peo- ple v. Bowers, 79 Cal. 415. § 134. Arguing from Facts not in Evidence. — The para- graph last cited sufficiently indicates that it is error to allow the prosecuting attorney, against defendant's objections, to argue from facts not in evidence. But if defendant's counsel has, in summing up, commented on such facts, the court may permit a reply of like character. Abbott, Trial Brief, § T07, citing People v. Mit- chell, 62 Cal. 411; Cross v. State, 68 Ala. 476; Ferguson v. State, 49 Ind. 33; Greene v. State, 17 Tex. App. 395; Reeves v. State,. 84 Ind. 116; People v. Bush, 68 Cal. 623; State v. Zeabo,89 Mo. 247. With these exceptions the authorities converge upon the prop- osition that counsel in their arguments to the jury are bound to keep within the limits of fair and temperate discussion. The range of that discussion is circumscribed by the evidence in the case; any violation of this rule entitles the adverse party to an ex- ception which is as potent to upset a verdict as any other error committed during the trial. State v. Ilannett, 54 Yt. 83; Gar//'/.:. v. State, 71 Md. 293. It would be strange, indeed, if counsel could make any sort of reckless assertion as to the law applicable to a case on trial, while arguing a question of evidence to the judge, and the latin- was without authority to give expression to his full and emphatic dis- sent from the unwarrantable contention of counsel. This is cer- tainly the right of a judge, and it may often he his imperative- duty to exercise that right in a very positive and emphatic man- ner. Garlitz v. State, supra. CHAPTER XXIII. CHARGING THE JURY ON THE EVIDENCE. .§ 135. Extreme Importance of the Subject. 136. Prominent Features of the Charge. 137. TJie Formula Usually Adopted. 13S. Mistake, how Rectified. 139. Instances of Fatal Error. 140. Instructions Must he Regarded in their Entirely. 141. Court Cannot Assume any Fact Established when there is Conflict. 142. Instructions are Advisory in their Nature. 143. Parties may Submit Requests to Charge. 144. Instances of Harmless Error. 145. The Conclusion Reached as to Instructions. 140. Power to Direct a Verdict. § 135. Extreme Importance of the Subject. — One of the most delicate functions pertaining to the judicial state, is exercised by the presiding judge in charging the jury on the evidence. A question of great importance is always presented where improper evidence has been admitted and the judge seeking to neutralize its effect, instructs the jury to disregard it. Instructions of this character are usually held to cure the defeat, unless it should clearly appear that the evidence erroneously admitted was of a seriously prejudicial character. In some jurisdictions it should be observed the judges are prohibited by the organic law from charging the jury with respect to matters of fact, and are confined to the testimony elicited in the case, and a statement of the law pertinent to the issue; The constitutions of Tennessee, ( Jalifornia and Nevada have this effect. North Carolina, Georgia and Alabama have express legislation on this subject, but none of their provisions preclude the right to charge in respect to facts the counsel have alluded to in their opening address to the jury, but in support of which they have failed to produce evidence. It is equally pertinent for the court to admonish the jury as to the dangers of circumstantial evidence, and to explain the status of negative testimony. So, the court may, within certain limitations, 186 CHARGING THE JURY ON THE EVIDENCE. 1ST advise the jury as to the credibility of certain witnesses, taking care not to infringe upon the functions of the jury in estimating the degree of credit to be accorded to the testimony. He may inform the jury of their right to consider the general environment of the witness, his age, degree of intelligence, relationship to the party, apparent bias, or interest in the case. In short the charge should be strictly confined to the evidentiary matters as are fairly within the compass of the case. For a further exposition of this subject, the practitioner is referred to appropriate works on trial practice. The frequency with which criminal convictions are reversed, owing to the evidence of some error in the judge's charge to the jury will abundantly excuse a somewhat protracted consideration of this branch of our subject. Great difficulty has arisen in many jurisdictions because of a slavish adherence to a formula given in section 200 of volume 1 of Greenleaf on Evidence. This instruction has been repeatedly condemned and condemned with emphasis. The Indiana supreme court, in Finch v. Bergins, 89 Ind. 360, reversed a judgment because the court below had given an instruction adopting the very words of Greenleaf in the sec. tion above mentioned. And Howk, J., in delivering the opinion of the court, said : " Of this section of Greenleaf's text, in a similar instruction in Davis v. Hardy, 76 Ind. 272, this court said : 'To give it in a charge, as written, would, in this state, be an invasion of the jury's exclusive right to judge of the credibility and weight of evidence. It is proper matter of argument that such evidence is subject to imperfection and discredit, for the reasons suggested, and the court may direct the jury's attention to the subject. But it is not for the court to say, as matter of law, in reference to the evidence of this kind, given in a particular case, that it is subject to much imperfection, or that "it frequently happens that the witness, by unintentionally altering a few ex- pressions really used gives an effect to the statement completely at variance with what the party did say; or that, where 'the ad- mission is deliberately made and precisely identified, the evidence is of ten of the most satisfactory nature.' These are matters of fact, experience and argument, but not otherwise the subject of legal cognizance.' " So, in Garfield v. State, 74 Ind. 60, in commenting en an instruction transcribed, like the one above quoted, from t Green- 188 LAW OF EVIDENCE IN CRIMINAL CASES. leaf on Evidence, this court said : " It is not every statement of the law found in a text-book or opinion of a judge, however well and accurately put, which can properly be embodied in an instruc- tion. . . . The instruction under consideration does not con- tain a single proposition of law, but only declarations of supposed facts, which common experience has perhaps established as true. The teachings of experience on questions of fact are not, however, doctrines of law, which may be announced as such from the bench. . . . They may well enter into the arguments of attorneys, . . . but the jury, not the judge, is the arbitrator of such contentions. . . . The most that the judge may do, under our practice, which leaves questions of fact entirely to the jury, is to direct the attention of the jurors to such propositions and leave them, in the light of their experience, to say what credit should be given to any testimony on account of its alleged doubt- ful character." In the case of Woolen v. Whitacre, 91 Ind. 502, it was said, by Hammond, J.: " The decisions of this court are numerous to the effect that it is error for the court to say or intimate to the jury that any circumstance or fact should be considered by them to the disparagement of a witness's testimony." And the rule above indicated in Finch v. Bergins, 80 Ind. 360, is supported by Nel- son v. Vorce, 55 Ind. 455; Pratt v. State, 56 Ind. 179; Millner v. Eglin, 64 Ind. 197, 31 Am. Rep. 121; Jachnan v. State, 71 Ind. 14!': WorJcs v. Stevens, 76 Ind. 181. § 136. Prominent Features of the Charge. — In charging the jury it should be the aim of the court not to give undue promi- nence to any phase of fact which the testimony tends to establish. If there be apparent incompleteness or weakness of proof on any of the controverted issues in the cause, counsel will usu- ally dwell on this in argument. But when parties ask a charge which isolates certain enumerated facts and circumstances, real or supposed, and invoke the instruction of the court on these, as circumstances especially to be weighed in the cause, the usual return is to give such facts and circumstances great, if not undue, prominence before the jury; and if given, the charge should be circumstances which point to the opposite conclusion. Less than this is apt to leave on the minds of the jury an impres- sion that the convictions of the presiding judge incline in favor of the party such instructions are supposed to benefit; and the sup- CHARGING THE JURY ON THE EVIDENCE. 189 posed bias is none the less patent and apparent, even though, in giving such charge the court adds : " These circumstances are to be considered with the other evidence in the case." Durrett v. State, 62 Ala. 441; and see Castro v. lilies, 22 Tex. 503, 73 Am. Dec. 277; McCartney v. McMullen, 38 111. 240; Blankenship v. Douglas, 26 Tex. 230; State v. Homes, 17 Mo. 379, 57 Am. Dec. 269; Carroll v. Paul, 10 Mo. 241; State v. Ward, 19 Xev. 297. In charging the jury the court must state to them all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may /^ v - Divine, 1 Edm. Sel. Cas. 594; Wynehamer v. People, 13 X. Y. 378; People v. Enoch, 13 "Wend. 159; Com. v. TPe&sfef, 5 Cush. 305; Com. v. Gardnsr, 11 Gray, 438; ifywfe v. $fofe, 8 Ohio St. 98; Anthony v. 5Stofe, 1 Meigs, 265; Hastings v. Bangor House Proprs. 18 Me. 436; Chrisman v. Gregory, 4 B. Mon. 474. The Oregon law provides that the jury are to be instructed by the court on all proper occasions: (1) That their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subor- dination to the rules of evidence; (2) That they are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a pre- sumption or other evidence satisfying their minds: (3) That a witness false in one part of his testimony is to be distrusted in others; (4) That the testimony of an accomplice ought to be viewed with distrust, and the oral admissions of a party with caution; (5) That in civil cases the affirmative of the issue shall be proved, and when the evidence is contradictory, the finding shall be according to the preponderance of evidence; that in criminal cases guilt shall be established beyond reasonable; doubt; (6) That evidence is to be estimated, not only by its own in- trinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and therefore, (7) That if the weaker and less satisfactory evidence Is offered 192 LAW OF EVIDENCE IN CRIMINAL CASES. when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. Hill's Annotated Law of Oregon, § 845. § 13S. Mistake how Rectified. — When upon a criminal trial the judge in charging the jury lays down erroneous propositions, but, upon his attention being called thereto by objections, corrects the misdirections and lays down the correct rule, no error is pre- sented for review. But to obviate an erroneous instruction upon a material point the withdrawal must be absolute and in such explicit terms as to preclude the inference that the jury might have been influenced thereby. Greenfield v. People, 85 IN". Y. 75, 39 Am. Eep. 636; Eggler v. People, 56 K Y. 642; Chapman v. Erie R. Co. 55 K Y. 579. § 139. Instances of Fatal Error. — In the case of Castleman v. Sherry, 42 Tex. 59, the court said: "The charge is further objectionable as being upon the weight of the evidence, when the court tells the jury that evidence of the admissions of a party is regarded as dangerous and liable to abuse, etc. Such expressions as these, found in every treatise on evidence, are to be regarded as matters of argument rather than rules of evidence having the force of law, upon which the court should instruct a jury." See also Mauro v. Piatt, 62 111. 450. It is fatal error to instruct the jury that evidence of verbal admissions made some time ago are subject to imperfection and mistake, and should be cautiously received, because the party may not have expressed his own meaning, or may have been misunder- stood, and the witness may not give the exact language, and there- by change the meaning; but admissions deliberately made against interest, are well understood, are entitled to consideration; never- theless the jury are the exclusive judges of the weight of the evi- dence. Shorb v. Kinzie, 100 Ind. 429. A charge which instructs the jury that, if the evidence is sus- ceptible of two reasonable constructions, one of which is consistent with the defendant's innocence, it is their duty to adopt that con- struction, is calculated to confuse and mislead, and is properly refused. Gibson v. State, 91 Ala. 64. In Densmore v. State, 67 Ind. 308, the court charged the jury that '"what is commonly called common sense is perhaps the ju- rors' best guide in those particulars." This was held erroneous, the court saying : "JSow, while common sense is a very desirable CHARGING THE JURY ON THE EVIDENCE. 193 and admirable quality in a man, and exceedingly useful in all the practical affairs of life, including the duties of jurors, we do not see how it can be a better guide to them in the discharge of those duties than the rules of law. Indeed, the rules of law are gener- ally the condensed common sense of ages. But the common sense of twelve jurors would not be likely to be all alike. What one might regard as the common sense view of a question, another might think utterly destitute of common sense. If each juror were to act upon his common sense instead of the rules of law, there would be as many different opinions as there were jurors. With each juror acting upon his own common sense instead of the rules of law, we might expect a verdict in accordance with the law 'when everlasting fate shall yield to fickle chance and chaos judge the strife.' " To the same effect, Wright v. State, 69 Ind. 165; Anderson v. State, 41 Wis. 430, 434; Meyers v. Com. 83 Pa. 142; People v. Ah Sing, 51 Cal. 372. A charge which selects and gives undue prominence to particu- lar portions of the evidence, to the exclusion of other material portions, is properly refused; as, where it asserts that the failure to prove any motive for the crime, or the proof of friendly rela- tions between the defendant and the deceased, "is a strong cir- cumstance in favor of the defendant's innocence." Goley v. State, 85 Ala. 333. So it is error to refuse to charge that, if there is apparent con- flict in the evidence, it is the dut} T of the jury to reconcile it if they can, and not impute perjury to any witness. Rickerson v. State, 78 Ga, 15. It is error for the court to refuse to charge the jury that if the evidence shows that at the time of committing the act the accused was in a state of intoxication, the jury must consider that fact, and that condition as bearing upon the question of premeditation, and showing the absence of deliberation in the act. Haile, v. State, 11 Humph. 154; Com. v. Jones, 1 Leigh, 598; Pirtie v. State, 9 Humph. 663; Sivan v. State, 4 Humph. 136; Boswell v. Com. 20 Gratt. 860; Lancaster v. State, 2 Lea, 575; Sehlencker v. State, 9 Neb. 241; People v. Rogers, 18 K Y. 9, 72 Am. Dec. 484; People v. Belencia, 21 Cal. 544; Ferrell v. State, 43 Tex. 503; Colhath v. State, 2 Tex. App. 391; Whart. Homicide, § 587; Com. v. Dorsey, 103 Mass. 412; Kelly v. Com. 1 Grant Cas. 484; Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414; Jones v. Com. 75 13 194: LAW OF EVIDENCE IN CRIMINAL CASES. Pa. 403; State v. Johnson, 40 Conn. 136; People v. Williams, 43 Cal. 344; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558; Peo- ple v. Ferris, 55 Cal. 588; People v. Harris, 29 Cal. 678; People v. Batting, 49 How. Pr. 392; Flanigan v. People, 86 N. Y. 554,. 40 Am. Kep. 556. A general rule of wide acceptance is to the effect that a court should not give a jury such instructions as to prevent them from exercising their own judgment and deciding for themselves. New- York F. Ins. Co. v. Walden, 12 Johns. 513; Bulkeley v. Ketel- tas, 4 Sandf. 450, 6 K T. 384; People v. Wiley, 3 Hill, 194; People v. Quin, 1 Park. Crim. Rep. 340; Pfomer v. People, 4 Park. Crim. Rep. 588; Breen v. People, 4 Park. Crim. Rep. 380;. Fitzgerrold v. People, 37 K Y. 413. In a larceny case an instruction invades the jury's province which charges that if the defendant denied having in his posses- sion goods which had been stolen, and such goods were found in his possession immediately after his denial, and he failed to ex- plain such possession, these facts were sufficient to sustain a con- viction. Blankenship v. State, 55 Ark. 244. § 140. Instructions Must be Regarded in their Entirety. — Although an instruction, considered by itself, is too general, yet if it is properly limited by others given on the other side, so that it is not probable it could have misled the jury,, judgment will not be reversed on account of such instruction. Kendall v. Brown, 86 111. 387; Skiles v. Caruthers, 88 111. 458. The supreme court of Iowa has said : "It is usually not practi- cable, in any one instruction, to present all the limitations and restrictions of which it is susceptible. These very frequently must be presented in other and distinct portions of the ch'arge. The charge must be taken together, and if, when so considered,, it fairly presents the law and is not liable to misapprehension nor calculated to mislead, a cause should not be reversed, simply be- cause some one of the instructions may lay down the law without sufficient qualification." Pice v. Pes Moines, 40 Iowa, 638. The same court held in a criminal case, where the indictment was for murder, that "instructions are all to be considered and construed together," and that an omission to state the law fully in one instruction, when the omission is fully supplied in another, does not constitute error. State v. Maloy, 44 Iowa, 104. The supreme court of California said, in a criminal case; t CHARGING THE JURY ON THE EVIDENCE. 195 "While some of the instructions are perhaps subject to criticism and may not state the law with precise accuracy, yet, taken as a whole, they were substantially correct and could not have misled the jury to the prejudice of the defendant." Peojple v. Cleve- land, 49 Cal. 577. The principle here announced, that an instruc- tion, which is general in its character, may be limited or qualified by other instructions in the series, does not contravene the rule, that in a criminal case "material error in one instruction calcu- lated to mislead is not cured by a subsequent contradictory in- struction." Whart. Crim. PL & Pr. (8th ed.) § 793. Notwith- standing this, as was said in the case of McDermott v. State, 89 Ind. 187, "The instruction should not be dissected and sepa- rated. It must be considered as a whole. If an instruction may be separated into fractional parts, so that one portion may not limit and qualify, or extend and explain another portion, it will be difficult, if not impossible, to form an instruction that will stand such an examination and criticism. In thus separating into parts, the sense may be twisted and tortured so that the most cor- rect may appear to be the most faulty instruction." See also Nicoles v. Calvert, 96 Ind. 310; Wright v. Pansier, 90 Ind. 492; Story v. State, 99 Ind. 413. § 141. Court Cannot Assume any Fact Established when there is Conflict. — It is the settled law that where there is any conflict in the evidence as to the existence of any fact in the case, the court can not, in charging the jury, assume that such fact has, or has not been established. This would be an invasion of the province of the jury. This is the ruling in the case of Finch v. Bergins, 89 Ind. 360. But where the existence of a fact is estab- lished by the evidence without any conflict, contradiction or dis- pute whatever, it is not an available error for the court to instruct the jury that there is evidence tending to prove such fact. See the following authorities : Carver v. Carver, 97 Ind. 497; Ilaz- zard v. Citizens State Bank, 72 Ind. 130; Moss v. Witness Print- ing Co. 64 Ind. 125; Bodge v. Gaylord, 53 Ind. 365; American Ins. Co. of Chicago v. Butler, 70 Ind. 1; Adams v. Kennedy, 90 Ind. 318; Steinmetz v. Wingate, 42 Ind. 574; JFynds v. Hays, 25 Ind. 31; Porter v. Millard, 18 Ind. 502; State Bank v. Hays, 3 Ind. 400; Crookshank v. Kellogg, 8 Blackf. 256; Nixon v. Brown, 4 Blackf. 157; Governor v. Shelly, 2 Blackf. 26; Hughes \. Monty, 24 Iowa, 499; Miller v. Kirhy, 74 111. 242; Ileartt v. Bhodes, GG 111. 351; Ilanrahan v. People, 91 111. 142. 196 LAW OF EVIDENCE IN CRIMINAL CASES. Judge Thompson, in his work on " Charging the Jury," at page 71, says : " But whilst it is improper for the judge to assume the existence of a fact in issue, yet, where the evidence is clear and conclusive as to the existence of the particular fact, and there is no evidence to the contrary, an instruction, assuming it as true, will not work a reversal of the judgment." This is a very good summary of the doctrine of the cases above cited. Koerner v. State, 98 Ind. 7. In the case of Sindram v. People, 88 N. Y. 196, Judge Rapallo said: "Comments upon the testimony, so long as the judge leaves all the questions of fact to the jury, and instructs them that the sole judges of matters of fact, are not the subjects of legal exception. It is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influ- ence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error. But in the present case, whenever its attention was called by the prisoner's counsel to any part of the charge which he considered as an infringement upon the province of the jury, the court promptly and clearly withdrew the remarks objected to, and emphatically reminded the jury that they alone had the right to determine the facts." § 112. Instructions are Advisory in their Nature. — The jury being the judges of the law and the facts in criminal cases, the instructions of the court are merely advisory, and not oblig- atory. Nuzum v. State, 88 Ind. 599; McDonald v. State, 63 Ind. 511; Keiser v. State, S3 Ind. 231; Fowler v. State, 85 Ind. 538. In the case of State v. Bank's, 18 Ind. 197, the court instructed the jury, under the facts, to return a verdict of not guilty. It is said by the supreme court, in affirmance of that case, that, "A c( >urt, in charging a jury, has no right to assume the guilt of the accused, or that a fact has or has not been proved, or to express any opinion or manifest a leaning upon evidence which would be submitted to the jury; but when there is no evidence, or none upon a particular point, upon which a conviction could be based, the court has a right to say so, and direct the jury to iind the defendant not guilty." On a trial for murder, where the evidence against the defend- ant is circumstantial, the jury should be advised that casual state- CHARGING THE JURY ON THE EVIDENCE. 197 ments made by the defendant, in the course of ordinary conver- sation, concerning the death of the deceased, should be considered with great caution. State v. Moxley, 102 Mo. 374. So where the evidence not only contained no suggestion of any provocation, or other mitigating circumstances, or that the killing was accidental, but affirmatively negatived any such hypothesis, it is not error for the court to advise the jury that no degree of manslaughter, and no degree of murder, except murder in the first degree, was applicable to the case; that, if they were satisfied beyond a reasonable doubt that the defendant killed the deceased with a premeditated design to effect his death, they must find him guilty of murder in the first degree; but that, if they were not so satisfied beyond a reasonable doubt, they must acquit him. State v. Lentz, 45 Minn. 177. § 143. Parties may Submit Requests to Charge. — If evi- dence has been received as proper for one purpose, although not for another — for instance, evidence of another offense, received to show knowledge or intent — the party affected has a right to an instruction, that the jury must consider it only as bearing on the question in reference to which it was properly received. Abbott, Trial Brief, § 791, citing Therasson v. People, 82 K Y. 238; People v. Gray, GO Cal. 271; Jones v. State, 14 Tex. App. 85; Holmes v. State, 20 Tex. App. 509; Coleman v. People, 55 X. Y. 81; Boyle v. State, 105 Ind. 409, 55 Am. Rep. 21S. When the instructions of the court are unexceptionable as to the offense charged and for which the prisoner is on trial, and such instructions cover every element of the crime, and correct rules for the proper application of the evidence, it is not strictly the right of a prisoner to ask instructions upon a hypothetical case, based upon other facts. Slatterly v. People, 58 N. Y. 354. Where the jury have been properly instructed, the judge may refuse to entertain any further application to charge them {Moody v. Osgood, 54 N. Y. 488) and he is under no obligation to sub- mit abstract propositions of law for their consideration. " The refusal to charge the requests, in respect to the credi- bility of the two detectives, or informers, was not error, for the reason that one of the requests was to charge that they were accomplices, and the other assumed that they were such." The testimony of such witnesses should be viewed with caution, — and even distrust; but it is, after all, a question for the jury, whether they shall be believed. Com. v. Downing, 4 Gray, 29. 198 LAW OF EVIDENCE IN CRIMINAL CASES. A judge is not bound to repeat his charge, nor is he bound to adopt the exact language of counsel in their request to charge. Tucker v. Ely, 37 Hun, 565; O'Connell v. People, VI K Y. 377; Moett v. People, 85 N. Y. 373; Raymond v. Richmond, 88 N". Y. 671. And he may properly refuse to give instructions asked after the argument has commenced. Surber v. State, 99 Ind. 71. § 144. Instances of Harmless Error. — The rule is firmly established that if, upon considering all the instructions together, it fairly appears that the law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate. Cooper v. State, 120 Ind. 377. The same reasoning that applies to a harmless error in an instruction is equally available as regards any error that is mani- festly without prejudice to the accused. All arguments upon this proposition converge upon the same conclusion. Armstrong v. Tait, 8 Ala. 635; O'Callaghan v. Bode, 84 Cal. 489; Klimple v. Boelter, 44 Minn. 172; West v. Camden, 135 U. S. 507, 34 L. ed. 254; Hogshead v. State, 120 Ind. 327; Cooper v. State, supra; Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Staser v. Ho- gan, 120 Ind. 207; Walters v. Jordan, 35 K C. 361; Atkinson v. Bailey, 107 111. 117; Copeland v. Koontz, 125 Ind. 126; Bos- ley v. CJiesapeake Ins. Co. 3 Gill & J. 450; Jones v. Angell, 9 # 5 Ind. 376; Johnson v. Evans, 8 Gill, 155, Ricketts v. Harvey, 106 Ind. 564; Sawyer v. Chicago & N. W. R. Co. 22 Wis. 403; Zach- ary v. Pace, 9 Ark. 212, 47 Am. Dec. 744; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514; Lackawanna dc B. R. Co. v. Doalc, 52 Fa. 379; Worley v. Moore, 97 Ind. 15. § 145. The Conclusion Reached as to Instructions. — Sum- marizing the conclusions of eminent authority, we may appropri- ately refer to the case of Com. v. Self ridge, Har. & T. 2, de- cided in 1S06. Ch. J. Parker in summing up the evidence and in- structing the jury, makes use of the following expressive language: "I hold the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I interfere with my opinion on the testimony, in order to influence your minds to incline either way, I should certainly step out of the province of the judge into that of an advocate. All which I conceive necessary or proper for one to do in this part of CHARGING THE JURY OX THE EVIDENCE. 199 the cause is, to call your attention to points of facts on which the cause may turn, state the prominent testimony in the case which may tend to establish or disprove those points, give you some rules by which you are to weigh testimony, if a contrariety should have occurred, and leave you to form a decision according to your best judgment, without giving you to understand, if it can be avoided, what my opinion of the subject is." Eighty years later the same principle was reasserted by the supreme court of Mississippi in the following language: "It has been correctly laid down, by authority, that the court is bound to instruct the jury on all the points pertinent to the case. The responsibility of a correct announcement of the law is upon the court. It would seem to follow, therefore, if the requests to charge do not, in the opinion of the judge, correctly state the law applicable to the case, that he ought to so modify them as to make them conform to the law." White v. State, 52 Miss. 216. § 146. Power to Direct a Verdict. — The trial court has not the power to direct a verdict of guilty, even though the evidence of guilt be overwhelming, and the question of guilt or innocence depends wholly upon a question of law. The contrary, however, was held in a case where the facts constituting guilt were undis- puted. On the other hand, the trial being in progress, the court cannot discharge the prisoner on the ground that the corpus delicti has not been proved; but a question of law only being pre- sented, may instruct the jury to acquit, and a refusal so to instruct is error. But such an instruction should only be given where there is no evidence tending to prove the offense charged. In the Federal courts it is not the practice to direct a specific verdict, but rather to instruct the jury upon the law as to the competency of the evidence, and leave it to them to find their verdict accord- ingly. Bapalje, Crim. Proc. § 376, citing Tucker v. State, 57 Ga. 503; United States v. Taylor, 3 McCrary, 500, 3 Crim. L. Mag. 552; United States v. Anthony, 11 Blatchf. 200; People v. Ben- nett, 49 1ST. Y. 137; State v. Warner, 74 Mo. S3; United States v. Walsh, 22 Fed. Bep. 644. "Where, on the trial of an indictment, the facts in evidence are admitted or undisputed, and are insufficient to establish that the offense charged has been committed by the defendant, it is the duty of the court, on request therefor, to direct the jury to return a verdict of not guilty. Com. v. Ruddle, 142 Pa. 144. CHAPTER XXIV. EVIDENCE OF PREJUDICIAL JURY. § 147. Accused is Entitled to Fair and Impartial Jury. 148. Mere Abstract Opinion of Guilt no Ground for Objection, 149. TJie Test of Competency. 150. Wlien the Objection Should be Regarded. 151. Irregularity of the Grand Jury May be Shown. 152. Evidence in Support of Verdict. § 147. Accused is Entitled to Fair and Impartial Jury. — A frequent objection obtruded, upon the trial of a criminal case,, relates to the prejudice or bias of the individual members com- posing the jury. Evidence is produced which tends to establish the fact that some individual who sat in the jury box approached the consideration of the case under circumstances that prevented him from being influenced solely by the evidence adduced. This objection is an important one, especially where the life of the accused is concerned ; as no privilege is more important to the citizen, than that of having the issues made, tried and determined by a fair, competent and disinterested jury, standing impartially between himself and his accusers. § 148. Mere Abstract Opinion of Guilt no Ground for Ob- jection. — This entire subject has received the critical attention of the Xew York court of appeals in a very recent case ; and Chief Justice linger in delivering the opinion of the court has left little that can be said upon the subject. In People v. Carpenter, 102 X. Y. 238, the evidence shows that one of the jurymen testifying as to his competency to sit in the case, said : "My mind is prac- tically clear and unbiased as between the people and this prisoner. I have no opinion now as to the guilt or innocence of the defend- ant. If the defense of insanity was interposed, I would have a prejudice against it. My answer only implies that I believe the defense of insanity has been misused and abused and I am not prejudiced against a person who is insane. It is a prejudice against sham defenses. I don't think that feeling would control or influence my judgment against the defense of insanity." The 200 EVIDENCE OF PREJUDICIAL JUET. 201 juror was held competent. Cora. v. JBuzzell, 16 Pick. 160; Com, v. Porter, 4 Gray, 423. The existence of a mere abstract opinion in which no element of malice or unreasoning prejudice enters, can certainly form no- just ground for the rejection of a juror, even where he admits that the defense of insanity, owing to its gross abuse, would raise some feeling of hostility to the accused. If the evidence shows, that notwithstanding this feeling against this defense, the juror can still be guided to his verdict by the testimony in the case, uninfluenced by any feeling of bias, he is competent as a juror. The end sought by the common law was to secure a panel that would impartially hear the evidence and render a verdict thereon uninfluenced by any extraneous considerations whatever. If the person proposed as a juror can and will do this, the entire pur- pose is accomplished. To secure this the statute requires that he shall make oath that he can do this, irrespective of any previ- ous or existing opinion or impression. Not satisfied that this may be safely relied upon, on account of the difficulty of deter- mining by a person having an opinion or impression how far he may be unconsciously influenced thereby, the statute goes further and provides that the court shall be satisfied that the person pro- posed as a juror does not entertain such a present opinion as would influence his verdict as a juror. Surely this latter provis- ion, if rightly and intelligently administered by a competent court,, will afford protection to the accused from injury from a partial jury. Stokes v. People,^ N". Y. 164, 13 Am. Rep. 493. On a question of actual bias even slight evidence is admissible. People v. Bodine, 1 Demo, 281, 307. The object of the inquiry is the state of mind of the proposed juror, and that state must be such, in order to make him compe- tent, as will lead to the inference that he will act with entire im- partiality. May v. Elam, 27 Iowa, 365. The leading and must recent case is People v. Casey, 96 1ST. Y. 115, 2 N. Y. Crim. lie}). 194. §149. The Test of Competency. — The test of the compe- tency of a juror in a capital case is his ability to render a verdict upon the evidence, and upon the evidence alone, uninfluenced by any opinion which he may have previously formed from news- paper or other reports of the crime. Pizzolo v. Coin. L26 Pa. 54. That case followed directly in the line of Staup v. Com. 71 Pa. 202 LAW OF EVIDENCE IN CRIMINAL CASES. 458; (P Mara v. Com. 75 Pa. 424; Ortwein v. Com. 76 Pa. 414, 18 Am. Kep. 420; Allison v. Com. 99 Pa. 32; Clark v. CW. 123 Pa. 558. In Allison v. Com. 99 Pa. 32, it was held that where a juror in a criminal case h^s formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent, even if his opinion thus formed does not come up to the standard of a fixed opinion. But this rule does not apply where the juror has heard or read only fragmentary portions of the evidence; on the con- trary, his opinion must have been formed upon all the evidence in a former trial against the same prisoner, before the disqualifi- cation referred to attaches; and it was distinctly ruled that the hearing or reading the evidence upon a preliminary examination before a coroner or committing magistrate, was not a trial within the meaning of this rule. We need not discuss this question fur- ther. It is worn threadbare, and the law ought now to be well understood. Com. v. Taylor, 129 Pa. 534. In Staup v. Com. supra, it was laid down as a primary rule, that a juror who had read the evidence taken on a former trial and had formed an opinion from what he read that was fixed, deliberately formed and still entertained, was not a competent juror. In O'Mara v. Com. supra, the rule stated was affirmed with the addition that where the juror's "opinion of the prisoner's guilt has become a fixed belief, it would be wrong to receive him." Ortwein v. Com. supra, followed, affirming all that was decided in the two former cases. The court then formulated and laid down the rules touching the competency of jurors in Allison v. Com. supra, and ruled: "Where the juror entertains a fixed or deliberate opinion, no matter how formed, of the prisoners guilt, he is incompetent, and his belief that he can try the prisoner im- partially will not remove the disqualification." In our present state of society, all that can be required of a juror, to render him competent, is, that he shall be without bias, or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former orjinion or impres- sion existing in his mind, formed upon rumor or newspaper re- ports. Whenever it is shown that such is the state of mind of the juror, he should be held to be competent; and such is the rule as laid down in Waters v. State, 51 Md. 430. In that case it was EVIDENCE OF PREJUDICIAL JURY. 203 said "that the opinion which should exclude a juror must be a fixed and deliberate one, partaking in fact of the nature of a pre- judgment." § 150. When the Objection Should he Regarded. — Where the evidence clearly shows that the objection raised is vital in its character, and is not referred to a mere matter of trivialty or de- tail, but strikes at the foundation of the organization of the jury panel as where the proof elicited shows the facts, that too many or too few persons composed the jury, or that the public officials failed to perform their duty by omitting to make any selection or list of names as is required by law; or to properly draw or sum- mon any or all of the panel from the names selected — such evi- dence discloses fatal defect in the composition of the jury, and is pertinent as showing the invalidity of any indictment found by them. Barney v. State, 12 Smedes & M. 68; Stokes v. State. 24 Miss. 621; Finley v. State, 61 Ala. 201; Fitzgerald v. State, 4 Wis. 395; Boyle v. State, 17 Ohio, 222; Low's Case, 4 Me. 439; People v. King, 2 Cai. 98; McCloskey v. People, 5 Park. Crim. Kep. 30S; State v. Bryce, 11 S. C. 342; People v. Thurston, 5 Cal. 69; Com. v. Cherry, 2 Ya. Cas. 20; Com. v. St. Clan: 1 G-ratt. 556; State v. Griffi.ce, 74 X. C. 316; State v. McNamara, 3 Xev. 71; Clare v. State, 30 Md. 164; Forth v. State, 23 Miss. 578; Brown v. Com. 73 Pa. 321; People v. Earnest, 45 Cal. 29; State v. Harden, 3 Kich. L. 53:!: Davis v. State, 46 Ala. 80; Fin- negan v. State, 57 Ga. 427; C Byrnes v. State, 51 Ala. 25; Clin- ton v. Englebrecht, 80 U. S. 13 Wall. 434, 20 L. ed. 659; Com. v. Norfolk County Ct. of Sessions, 5 Mass. 435; Nicholls v. State, 5 X. J. L. 539; Chase v. State, 20 X. J.L. 218; State v. Williams, 1 Pach. L. 1S8; People v. McKay, IS Johns. 212; State v. Liglit- body, 38 Me. 200; Pawls v. State, 8 Smedes & M. 599; Co, Parker, 2 Pick. 550; Eaton v. Com. 6 Binn. 447; State v. Can- trell, 21 Ark. 127; MeElhanon v. People, 92 111. 369; State v. Symoncls, 36 Me. 12S; United 'States v. Hammond, 2 Woods C. C. 197; State v. Pockafellow, 6 X. J. L. 405; JS* ich v. Statt . 53 Ga. 73, 21 Am. Kep. 265; State v. Foster, 9 Tex. 65; Jackson v. State, 11 Tex. 261; State v. Davis, 12 E. 1. 492, 34 Am. Rep. 704; 1 Chitty, Crim. Law. 307; 2 Hawk. P. C. 307; 2 Sale, !'.('. 155; Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664; JVeal v. Delaware, 103 U. S. 370, 26 L. ed. 567. In criminal cases and especially those involving such a moment- 204 LAW OF EVIDENCE IN CRIMINAL CASES. cms result as the life of the accused, it is quite essential that no* irregularity on the part of the jury is permitted which can pos- sibly prejudice him, and in such a case a new trial will ordinarily be granted unless it clearly appears that it did not affect the verdict. Eastwood v. People, 3 Park. Crim. Rep. 25; People v. Johnson, 46 Hun, 007. § 151. Irregularity of the Grand Jury may be Shown. — The exclusionary rules that formerly obtained as to the inviola- bility of grand jury secrets, have entirely disappeared. It is now well settled, that when evidence of a grand juror as to proceed- ings before that body becomes material to the administration of justice, such evidence will be allowed and indeed demanded. State v. JJnxtghton, 29 K C. 90; State v. Wood, 53 K PI. 484;. Burnham v. Hatfield, 5 Blaekf. 21; Little v. Com. 25 Gratt. 921; United States v. Charles, 2 Cranch, C. C. 70; Com. v. Hill, 11 Cush. 137; People v. Young, 31 Cal. 503; Hurdick v. Hunt,. 43 Ind. 3S1; Com, v. Head, 12 Gray, 167, 71 Am. Dec. 741. Numerous instances in our criminal annals disclose an attempt on the part of the accused to vitiate the indictment against him, by introducing evidence having a tendency to affect the constitu- tionality of the organization under which the functions of the jury are supposed to derive their force. And wherever evidence showing this informality is of a direct and convincing kind a ques- tion at once arises of the utmost gravity. Because of the far reaching consequences of such evidence, whenever it is properly introduced, the question under review is thought to merit the somewhat extended examination it receives in this immediate connection. When old and valid laws still operative for the obtainment of a grand jury are disregarded, and a new, unlawful and forbidden enactment is obeyed in its selection, what possible vitality of life can an organization thus set on foot obtain? See in this connec- tion the opinion of the chancellor in People v. White, 24 Wend. 539, 540, 541, 542, as to the distinction between de facto officers of a tribunal " duly organized," and of the " de facto officers of an unconstitutional and therefore illegally organized court;" also,. Hildreth v. Mclntire, 1 J. J. Marsh. 206-209; also Green v. State, 59 Md. 125, 43 Am. Eep. 542, in which the court of appeals of that state, per Irving, J., says : " The general method prescribed for drawing juries is mandatory, and substantial EVIDENCE OF PREJUDICIAL JUKT. 205 compliance with the provisions thereof in respect to the selection and drawing of jurors is necessary to make the jury a legal one; .and unless the selections are made by the judge in the manner pointed out by the statute, exception at the proper time and in the proper May may be successfully taken to a jury improperly chosen or drawn; otherwise the statutory provisions would be wholly nugatory;" also Dutell v. State, 4 G. Greene, 125, which was to review the denial of a motion " to quash the indictment on the ground that the grand jurors who found it were not selected according to law." The court says, per Greene, J.: " But it is urged by the attorney general, that the defendant cannot raise this objection after the indictment is found, but that he should have challenged the panel of the grand jury. This course may be adopted with propriety by a defendant held to answer for a pul >- lie offense; but can it be expected that citizens at large, against whom there is no imputation of offense, are required to appear and challenge the panel of grand jurors, or be forever precluded from raising an objection to their selection or authority to act ? It is true, as a general rule, that when the indictment is duly exhibited in open court, and indorsed ' a true bill,' it is evidence that it was duly found by a legal grand jury. But when the records of a county show that the grand jury were not legally selected, and had no authority to act, it is evidence of a higher grade, and shows that the indictment could not ha -e been found, exhibited and indorsed by legal authority." See also Iu itler v. State, 4 G. Greene, 291; State v. Symonds, 36 Me. 128. Evidence of irregularities in the selection or empanelling of the grand jury which do not affect the material rights of the suspect, are inadmissible, as in such case the irregularities if proven would afford no valid ground of objection to the indictment. People v. Petrea, 92 K Y. 128. Courts will not listen to an objection made to the constitution- ality of an act by the party whose rights it does not affect, and who, therefore, has no interest in defeating it. Cooley, Const. Lim. 163, 161; Be Wellington, 16 Pick. 87, 26 Am. Dec, 631. Nor will they look with indulgence upon objections to irregu- larities in the mode of selecting or drawing grand jurors com- mitted without fraud or design, which have not resulted in plac- ing upon any panel disqualified jurors. " .Mere irregularities in the drawing of a grand jury and petit 206 LAW OF EVIDENCE IN CRIMINAL CASES. jurors do not furnish a ground for reversing a conviction unless it appears that they operated to the injury or prejudice of the- prisoner." Cox v. People, 80 K Y. 500. § 152. Evidence in Support of Verdict. — Affidavits of the jurors are always admissible to sustain their verdict as rendered, and while evidence is rarely heard to impeach a verdict, in all cases where it becomes necessary to sustain the conclusion reached, affidavits tending to that result may be read as evidence. State v. Bailey, 32 Can. 83; Downer v. Baxter, 30 Yt. 467; Martin v. People, 54 111. 225; Thrall v. Lincoln, 28 Yt. 356; State v. Wart, 51 Iowa, 587; Clayton v. State, 100 Ind. 201; Taylor v. Everett, 2 How. Pr. 23; Long v. State, 95 Ind. 486; Kennedy v. Com. 2 Ya. Cas. 510; De Hart v. Etnire, 121 Ind. 244; State v. Cucuel, 31 K J. L. 249; Carter v. Ford Plate Glass Co. 85 Ind. 189; Colcer v. State, 20 Ark. 53; Medler v. State, 26 Ind. 171; Jenkins v. State, 41 Tex. 128; Spencer v. Trqford, 4z2 Md. 1; Stanton v. State, 13 Ark. 317; Eastwood v. People, 3 Park. Crim. Eep. 25; People v. Kelly, 46 Cal. 357; Tenney v. Evans, 13 1SL H. 462; People v. Murray, 85 Cal. 361; State v. Howard, 17 'N. H. 171; Pe^te v. Pye, 62 Cal. 523; State v. Pifo, 20 N. H. 344; Peopte v. Goldenson, 76 Cal. 352; £tofe v. Ayer, 23 K H. 301; People v. Thornton, 74 Cal. 488; Boynton v. Trumbull, 45 N. H. 408; Grinnell v. Phillips, 1 Mass. 530; P^ma v. Ticker, 4 Johns. 487; Ferrill v. Simpson, 8 Pick. 359; Crockett v. /State, 52. Wis. 214; Grottkau v. /State, 70 Wis. 470; Bradford v. /State, 15 Ind. 347. Jurors cannot be called as witnesses to prove their own official misconduct or that of their fellows. Such a course is conspicu- ously illegal. The court cannot base its action on such testimony, for it has been the long established rule that jurors cannot be called to the stand for such a purpose. Titus v. State, 49 N. J. L. 36. CHAPTER XXV. EVIDENCE OF OTHER OFFENSES. § 153. The General Rule Excludes. 154. An Exception Noted to the Above Rule. 155. Evidence of Another Crime if Pertinent to the Issue is Admissible. 156. Rule as to Misdemeanors. 157. Evidence of other Offenses Should be Cautiously Admit- ted. 15S. Fabrication and Suppression of Evidence. § 153. The General Rule Excludes. — It is indeed elementary law that no evidence can be admitted which does not tend tO' prove the issue joined, and the reason and necessity of the rule are much stronger in criminal than in civil cases for the observ- ance of this rule and of confining the evidence strictly to the issue. The indictment is all that the defendant is expected to come prepared to answer. Therefore, the introduction of evi- dence of another and extraneous crime is calculated to take the defendant by surprise and do him manifest injustice by creating a prejudice against his general character. People v. Sharp, 107 K Y. 427. The general rule is against receiving evidence of another offense. A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime if it was known that he had committed anoth- er of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one. Cole- man v. People, 55 K Y. 81; State v. Lapagi , 57 N". II. 245; Peo- ple v. Gibbs, 93 IST. Y. 471; Snyder v. Com. 85 Pa. 519; Com. v. Miller, 3 Cush. 243; State v. Turner, 76 Mo. 350; Brook \. State, 26 Ala. 105; State v. Shuford, 69 K C. 486; Stone v. State, 4 Humph. 27; Eosenweig v. People, 63 Barb. 634; Barton v. State, 207 2l»S LAW OF EVIDENCE IN CRIMINAL CASES. 18 Ohio, 221; Coble v. State, 31 Ohio St. 100; Bonsall v. State, 35 Ind. 460; Sutton v. Johnson, 62 111. 209; Baker v. Peopte, 105 111. 452; State v. Miller, 47 Wis. 530; P^^Ze v. Barnes, 48 Cal. 551; Cesure v. State, 1 Tex. App. 19; /S^ate v. Boyland, 24 Kan 1S6; Cbte v. <7om. 5 Gratt. 696; Dunn v. /State, 2 Ark. 229, 35 Am. Dec. 54. The above authorities conclusively show that it is beyond the .countenance of either precedent or statute to disturb this rule. It is said by the court, in Shaffner v. Com. 72 Pa. 60, 13 Am. Rep. 651: "Logically the commission of an independent offense is not proof of itself of the commission of another crime. Yet it cannot be said to be without influence on the mind, for, certainly, if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged; it, therefore, predisposes the mind of the juror to believe the prisoner guilty." It tends to give undue prominence, force and weight to all the other evidence in the case for the prosecution. It detracts, in like manner, but in double portion, from all the evidence in his defense. It preju- dices the jury against him, and inclines them to look with suspi- cion on all who come forward to testify in his favor. Hence, it is "not only unjust to the prisoner to compel him to acquit himself •of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues, that tend to confuse and mislead the jury." State v. Lapaae, 57 N. H. 245. § 154. An Exception Noted to tlie Above Rule. — It is famil- iar knowledge that few postulates of law are without exception. And to the general rule, which excludes evidence of another fel- ony than the one under review, we tind an exception in cases where several felonies are connected together. This view is upheld in Rex v. Ellis, 6 Barn. & C. 145, where the court says: "Generally speaking, it is not competent for a prosecutor to prove a man guilty by proving him guilty of another unconnected fel- ony; but where several felonies are connected together, and form part of one entire transaction, the one is evidence to show the character of the other." Mr. Roscoe (Roscoe, Crim. Ev. 86) cites a case referred to by Lord Ellenborough in Rex v. Whiley, 2 Leach C. C. 9S5, where a man committed three burglaries in one night, and stole a shirt in one place and left it in another, and they were all so connected that the court heard the history of all EVIDENCE OF OTHER OFFENSES. 209 three burglaries, and Lord Ellenborough remarked that "if crimes do so intermix, the court must go through the detail." See also Pierce v. Hoffman, 24 Yt. 527; Bottomley v. United States, 1 Story, 142; Baalam v. State, 17 Ala. 433; Dunn v. State, 2 Ark. 243, 35 Am. Dec. 54; Com. v. Call, 21 Pick. 522, 32 Am. Dec. 2S4; Bex v. Dunn, 1 Moody, C. C. 150; Bex v. TPy/^V, 1 Bos. & P. JST. E. 92; Bex v. Long, 6 Car. & P. 179; Bex v. Mogg, 4 Car. •ife P. 364; Bex v.' Egerton, 1 Puss. & P. 375; Tharp v. ^Yrt^, 15 Ala. 757. It is never competent upon a criminal trial to show that the •defendant was guilty of an independent crime not connected with or leading up to the crime for which he is on trial, except for the purpose of showing motive, interest or guilty knowledge. Earle, J., in People v. Greenwall, 10S N. Y. 301. It has been reasoned, but on grounds that will not be every- where admitted, that, under certain indictments, evidence of previous crimes may be shown. Judge Papallo says: "The ■cases in which offenses other than those charged in the indict- ment may be proven, for the purpose of showing guilty knowl- edge or intent, are very few." People v. Corbin, 5G JN". Y. 363, 15 Am. Pep. 429. The very language employed indicates that there are cases where such evidence is relevant. "To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor, by a con- nection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offenses charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudicial character of such evi- dence, it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visi- ble connection, to prove the commission of the other by the pris- oner. If the evidence be so dubious that the judge <1<>cs not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the 14 210 LAW OF EVIDENCE IN CRIMINAL CASES. jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt." Shaffner v. Com. 72 Pa. 60, 13 Am. Eep. 649 (Agnew, J.). In the case of Bottomley v. United States, 1 Story, 135, that eminent jurist said: "In all cases where the guilt of the party depends upon the intent, purpose, or design with which the act is done, or upon his guilty knowledge thereof, I understand it to be a general rule, that collateral facts may be examined into, in which he bore a part, for the purpose of establishing such guilty intent, design, purpose, or knowledge. ... In short, wherever the intent or guilty knowledge of a party is a material ingredient in the issue of a case, these collateral facts [that is other acts and declarations of a similar character] tending to establish such intent or knowledge, are proper evidence." It is certainly true that, in a criminal trial, evidence may be received of any one of a system of crimes, mutually dependent, but there must be a system established between the offense on trial, and that introduced, to connect it with the defendant. Hester v. Com. 85 Pa. 139. To make one criminal act evidence of another, some connection must exist between them; that the connection must be traced in the general design, purpose or plan of the defendant, or it may be shown b} 7 such circumstances of identification as necessarily tends to establish that the person who committed one must have been guilty of the other. The collat- eral or extraneous offense must form a link in the chain of cir- cumstances or proofs relied upon for conviction; as an isolated or disconnected fact it is of no consequence; a defendant cannot be convicted of the offense charged simply because he is guilty of another offense. In the case of Goerson v. Com. 99 Pa. 388, Mercur, J., giving the result of all the cases upon the admissibility of such testimony, Bays: "Yet, under some circumstances, evidence of another offense by the defendant may be given. Thus, it may be to establish identity; to show the act charged was intentional and willful, not accidental; to prove motive; to show guilty knowledge and purpose, and to rebut any inference of mistake; in case of death by poison, to prove the defendant knew the substance administered to be poison; to show him to be one of an organiza- tion banded together to commit crimes of the kind charged, and to connect the other offense with the one charged as part of the same transaction." Swan v. Com. 104 Pa. 218. EVIDENCE OF OTHER OFFENSES. 211 "Where it is necessary to prove a particular intent in order to establish the offense charged, proof of previous acts of the same kind is admissible for the purpose of proving guilty knowledge or intent. In cases of uttering forged instruments; "receiving stolen property; passing worthless bank bills, — these, and many other cases might be referred to." See People v. Schweitzer, 23 Mich. 310, and note. See marginal note appended to the case of Peo- ple v. Wakely, 62 Mich. 297. If a prisoner upon trial for one offense does call out facts on cross-examination, without objection, tending to show that he is not guilty of another offense, this does not justify evidence on the part of the prosecution to prove that he is guilty of the other offense. The accused can only be tried for the crime charged; and this rule cannot be abrogated by evidence which may have been called out in relation to another crime. If a person on trial for stealing a horse gives evidence, without objection, that he did not on some other occasion steal other property, it would not be competent for the prosecution to introduce evidence that he was in fact guilty of the other crime; and especially not, if the evi- dence as to the other property came out incidentally upon c examination. A party does not acquire the right to give imma- terial evidence because his adversary has done the same thing. The rule involved would apply when a party had given secondary evidence of a material fact, but does not unless the evidence itself is material. Otherwise, the parties could make every trial inter- minable, by litigating collateral questions. Coin/tan v. People, 55 N. Y. 81. Another exception to the general rule that independent crimes cannot be proved, is found in that class of cases where acts are shown to have been done as part of the same plan or scheme of fraud. Jordan v. Osgood, 109 Mass. 457. Where an act is shown to have been done by a party entrusted with money, and the inquiry is whether it was an act of embezzlement, other acts in the conduct of the same business are admissible as showing his criminal intent. Rex v. Ellis, 6 Barn, e a prima facie presumption that they have been properly stamped. It cannot, however, be denied, but that such conduct,, in the absence of all excuse, is calculated to produce in the minds of the jury a very prejudicial effect against any person having recourse to it; and if such person be charged with fraud or other misconduct, and the production of his papers would establish his guilt or innocence, the jury will be amply justified in presuming him guilty from the unexplained fact of their non-production. On the same principle, jurors will do well to regard with suspi- cion the conduct of any party, who, having it in his power to pro- EVIDENCE OF OTHER OFFENSES. 221 ■duce cogent evidence in support of bis case, is content to offer testimony of a weaker and less satisfactory character. 1 Taylor, Ev. § 117, citing 3 Coke, Inst. 232; Wills, Circ. Ev. 154; Went- worth v. Lloyd, 33 L. J. Ch. 6S8, per Lord Chelmsford, Doin. Proc. 10 H. L. Cas. 5S9; Cooper v. Gibbons, 3 Campb. 363; Crisp v. Anderson, 1 Stark. 35; Roe v. Harvey, 1 Burr. 2184, per Lord Mansfield; Bate v. Kinsey, 1 Cromp. M. & R. 41, per Lord Lynd- liurst; Sutton v. Devonjjort, 27 L. J. C. P. 54; Edmonds v. Fos- ter, 45 L. J. M. C. 41; Clifton v. United States, 45 U. S. 4 How. 242, 11 L. ed. 957; New York Civ. Code, § 1852, art, 0, 7. Mr. Colby, in his well known treatise on Criminal Law, under the caption above indicated, employs the following pertinent lan- guage: "Among examples of this nature maybe mentioned the common case of obliteration of marks of identity, as by filing away the •engraving from articles of plate, or the removal or endeavor to remove from the person or clothes stains of blood or other marks. The shoeing of a horse backwards, so as to reverse the track.-, and many other instances of the obliteration or distortion of marks of identity. Wills, Circ. Ev. 75; 1 Whart. Am. Crim. Law, 723." In the case of an indictment for murder by poisoning, the con- tents of the stomach, which had been placed in a jug for exami- nation, were clandestinely thrown by the prisoner into a vessel containing a large quantity of water. Upon this circumstance, the learned judge commented very forcibly in his charge to the jury. "What pretense," said he, "was there for this? And if the prisoner did it, why do it in secrecy? Why place the jug in the precise condition in which it was left by the medical man? Why not allow it to remain in the situation in which a vessel may be placed in the progress of such an examination." JJonnaWs Case, Frazier, 171. The concealment of death by the destruction or attempted destruction of human remains falls within the same classification. Bemis' Webster case, 471; Bex v. Gardelle, 4 Celebrated Trials, 400. Prominence among the cases of suppression of evidence is the attempt to prevent post mortem examinations by the premature interment of human remains, under the pretext that it is neces- sary by the state of the body. In the case of violent or sudden death, and especially when caused by poison, it cannot but be 222 LAW OF EVIDENCE IN CRIMINAL CASES. known that the post mortem examination will always furnish important and generally conclusive evidentiary matter as to the cause of death. Besides the suppression, destruction and fabrica- tion of evidence by criminals, which, when detected, raises a. strong presumption against them, facts are often simulated for the purpose of attracting suspicion in a direction different from the true one. Sometimes the object of simulated facts is not merely to divert suspicion from the real culprit, but also to attract it t( iward a particular individual; and such is the weakness of human nature that there are even instances where innocence has degraded and betrayed itself by the simulation of facts, for the purpose of evading the force of circumstances of apparent suspicion. Wills,. Circ. Ev. 79-82; Hex v. Coleman, 1 Remarkable Trials, 162, 4 Remarkable Trials, 344. CHAPTER XXVI. DUTY OF JURY IN WEIGHING EVIDENCE. § 150. What Rides Should Govern. 160. A Distinction Noted. 161. Reconciling Variances. 162. Review of an Apt Decision in the United States Circuit Court, 163. Notes and Memoranda in the Jury Room. 164. May Return into Court for Information. 165. Instructions as to Duty in Weighing Evidence. 166. Relative Weight of Positive and Negative Testimony. 167. Nature and Scope of the Scintilla Doctrine. 168. Statement of the Pennsylvania Rule. 160. Views of Judge Foster. § 159. What Rules Should Govern.— In deliberating upon the evidence adduced in the trial of a criminal case, the jury should keep in mind one cardinal principle that is occasionally overlooked. It is the wide distinction between evidence which tends to satisfy an intelligent jury, that the accused has perpe- trated a crime, and such evidence as merely tends to raise in the mind of the jury a suspicion of guilt. People v. Williams, 29 Hun, 520. The question as to the weight of testimony is for the jury ex- clusively, and it would have been an invasion of their province for the judge to say to them that the character which the prisoner may have established should have great weight with them. The utmost that could be asked of him would be to say to the jury that if they believed that the prisoner had established a good character, that would be a circumstance to be taken into consid- eration by them in forming their conclusion. State v. Tarrant, 24 S. C. 593. Within certain limits, the judge may propose to the jury cer- tain rules to aid them in weighing the evidence, and even in de- termining the credibility of witnesses. Thomp. Trials, § 2114, citing O'JYeil v. State, 48 Ga. G6; McLean v. Clark, 47 Ga. 24; Poertner v. Poertm,er, 66 Wis. 644. Some embarassment arises when a defendant in a criminal 99,3 221 LAW OF EVIDENCE IN CRIMINAL CASES. case offers himself as a witness in his own behalf. In such a case it is the duty of the jury to give his evidence all the credit to which it is entitled; but, in ascertaining the extent of its credi- bility it is proper and necessary to consider the situation in which he is placed. A person accused of a crime may speak the truth, and it is for the jury to say, in view of all the facts whether or not he has done so in whole or in part. They should give proper weight and effect to all his evidence, if they are convinced of its truth, or so much thereof as in their best judgment is entitled to credit. State v. Slingerland, 19 Nev. 135. If he makes conflicting statements as to material facts, a charge by the court that if the jury believe that such witness has will- fully testified falsely, he is not entitled to credit, and they are authorized to disbelieve his entire testimony, is proper. As to whether it would be proper for the court to direct the jury to wholly disregard the testimony of a witness who had tes- tified to a willful falsehood, quaere. Punlop v. Patterson, 5 Cow. 213, 217; People v. Evans, 10 K Y. 1; Peases. Smith, 61 K Y. 177, 189; Peering v. Metcalf, 71 K Y. 503-505; Punn v. People, 29 K Y. 523; People v. Petmechj, 99 K Y. 121; Moett v. People, 85 jS\ Y. 373; The Santissima Trinidad <& The St. An- der, 20 U. S. 7 Wheat. 338, 339, 5 L. ed. 168; Ruber v. Teuber, 3 McArth. 185; 2 Starkie, Ev. 873; Sanders v. Leigh, 2 Harr. & McH. 380; Best, Presumptions, 206. It is unquestionably the duty of the jury to give careful and respectful consideration to the instructions of the court, in every criminal cause, and not to disregard such instructions, except for some sufficient reason addressing itself to their judgment; yet, when the time for their ultimate decision upon the merits of the cause is reached, they have the right to determine for themselves the law as well as the facts by which their verdict shall be gov- erned. McPonald v. State, 63 Ind. 511. We have considered what evidence is necessary; we have now to consider what evidence is admissible as relevant to the issue. Bearing in mind all that has been said as to the nature of the issue or issues raised by an ordinary criminal pleading, it may be laid down as a general rule, that in criminal, as in civil cases, the evidence shall be confined to the point in issue. In criminal pro- ceedings it has been observed (3 Russell, Crimes (5th ed.) 368), that the necessity is stronger, if possible, than in civil cases, of DUTY OF JURY IN WEIGHING EVIDENCE. 225 strictly enforcing this rule; for where a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and matters relating thereto, which alone he can be expected to come prepared to an- swer. The importance of keeping evidence within certain pre- scribed grounds is greater now than before the alterations in crim- inal pleadings. Roscoe, Crim. Ev. 92. We have elsewhere adverted to the duty of the court to strike ■out improper evidence that has been inadvertently or unadvisably received, but we cannot be too emphatic in reminding the prac- titioner that evidence of this character when accompanied by cir- cumstances likely to influence a jury to the prejudice of the accused is not deprived of its obnoxious qualities by being merely stricken from the record. If its effect is evidently pernicious its reception must work a reversal. There is a conflict upon this jjoint and great caution should be exercised in instances of this nature. People v. Zimmerman, 4 N. Y. Crim. Rep. 272. The jury are not justified in disregarding evidence in the case, unless there is some reason to believe there is some unworthiness •or turpitude on the part of the witness offering it. It is a familiar rule, that no discredit can attach to a testifying witness in the absence of something discrediting to his character. J/, ixsell v. Williamson, 35 111. 533; Hartford Life c& A. Ins. Co. v. Gray, SO 111. 28; Chittenden v. Evans, 41 ill. 253. The same distinguished court is also authority for the proposition that the weight and credibility of defendant's testimony in a criminal case, must depend upon the testimony of the witnesses taken in its entirety; and as to the duties of the court in giving proper in- structions as to the weight and credibility of this testimony, see Chambers v. People, 105 111. 414; Bulliner v. People, 95 111.407; Bartholomew v. People, 104 111. 001, 44 Am. Rep. 97. § 160. A distinction Noted. — The first point in weighing •evidence is to ascertain whether the statements to which the wit- ness has testified are facts within his own knowledge, that is, information which he has derived through the medium of his own senses, or whether they are mere beliefs which he entertains, founded upon the exercise of his reasoning powers, ami based npon the occurrence of other facts and circumstances. Colby, Crim. Law, chap. 4, p. 100. 15 226 LAW OF EVIDENCE IN CRIMINAL CASES. § 161. Reconciling Variances. — Where the testimony of di- rect witnesses is apparently at variance, it is to be considered, in. the first place, whether they be not in reality reconcilable, especially where there is no extrinsic reason for suspecting error or fraud. But, if their statements, upon examination, be found irreconcilable, it becomes an important duty to distinguish between the misconception of an innocent witness, which may not affect his general testimony, and willful and corrupt misrepresentations which destroy his credit altogether. The presumption of reason as well as of law in favor of innocence will attribute a variance in testimony to the former rather than to the latter origin. Partial incongruities, discrepancies in testimony, as to collateral points, are, as has been already observed, to be expected; and it is for a jury to determine whether in the particular instance they are of such a nature and character, under all the circumstances, that they may be or cannot be attributed to mistake. In estimating the probability of mistake and error, and also in deciding on which side the mistake lies, much must depend on the natural talents of the adverse witnesses, their quickness of perception, strength of memory, their previous habits of general attention, or of attention to particular subject matters. Starkie, Ev. (10th Am. ed.) 866. It is particularly the province of the jury to determine all con- flicts in the evidence of a criminal trial, and this rule extends to cases where a witness is in conflict with himself. State v. Ad- ams, 7S Iowa, 292. §162. Review of an Apt Decision in the United States Circuit Court. — The entire range of legal literature fails to dis- close a more felicitous exposition of this subject than that con- tained in the opinion of Judge McCormick, in the case of United States v. Hughes. The case is reported from the fifth circuit. The decision was handed down in 1888, and a very brief review of the well considered paragraphs will disclose its rare pertinency to the present discussion. His honor says: " Each juror is entitled to have, and, in my judgment, is bound to thoughtfully and impartially consider the argument of counsel, the comments of the judge, and the views of his fellow jurors and allow all these such influence in helping him to a satisfactory con- clusion as in his judgment their various suggestions deserve, and honestly to strive to bring his own mind and the minds of his fellows into harmony, so that the jury may agree upon a verdict,. DUTY" OF JURY IN WEIGHING EVIDENCE. 227 It is true that if, in any given case, any one or more of the jury, after an earnest and impartial consideration of all these matters proper to be considered in weighing the evidence, under the law applicable thereto, as given in the charge of the court, cannot bring his mind or their minds to concur in the conclusion of his or their fellows as to the guilt or innocence of the accused, each such juror not only may, but must, adhere to the final and fixed conclusion of his own mind, for it is the logic and the law of jury trials that the twelve minds of the jury must actually and hon- estly concur in a verdict, before a verdict can rightly be rendered." United States v. Hughes, 34 Fed. Kep. 732: § 163. Notes and Memoranda in the Jury Room. — The court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people. The jury may also take with them notes of the testimony or other proceedings on the trial, taken by them- selves or any of them. But it is at all times the undoubted policy of the law to watch over the deliberations of the jury, and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court, in the presence of the parties and their counsel, where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law. Slight circumstances and inconsiderable observations may some- times influence a jurors mind. Watertown Bank ct> Loan Co. v. Mix, 51 N. Y. 561; Schappner v. Second Ave. JR. Co. 55 Barb. 497. Private communication to a jury is very properly and strongly condemned by Johnson, J., in Watertown Bank ci> Loan Co. v. Mix, supra. The burden of showing improper communications or observations in writing or, otherwise, should not be thrown upon a defeated party, who challenges any irregularity occurring in the deliberation hours of a retired jury. Mitchell v. Carter, 14 Hun, 448. § 164. May Return into Court for Information. — It is an elementary principle of criminal practice that the jury may, after their retirement, return into court to receive some further instruc- tions either upon the evidence or as to some point of law. No 22S LAW OF EVIDENCE IN CRIMINAL CASES. exception can be based upon such action in the absence of any prejudice shown and within proper limitation such action should be encouraged as leading to more accurate results in jury trials. Drew v. Andrews, 8 Hun, 23; State v. Pitts, 11 Iowa, 313; Nelson v. Dodge, 116 Mass. 367. § 165. Instructions as to Duty in Weighing Evidence. — It is competent for the court to instruct the jury, that in weighing the evidence of the accused, they could consider his interest in the case. In Allen v. State, 87 Ala. 107, in reference to a charge on this subject, it is said : " The court should not have gone further in this connection, than to instruct the jury that, in deter, mining the weight they would give to the defendant's testimony, they should consider, along with other circumstances having any bearing on the matter, the fact that he was the defendant." Mor- ris v. State, 87 Ala. 85. In weighing the testimony of a party, and passing upon its credibility, the jury have an undoubted right to consider all the circumstance under which it is given, including his particular per- sonal interest in the result of the trial; and it is not error for the court to remind them of the latter circumstance, provided he refrains from intimating or suggesting the degree of weight to be given it. See Bulliner v. People, 95 111. 391; People v. Morrow^ 60 Cal. 142; Minich v. People, 8 Colo. 410. § 166. Relative Weight of Positive and Negative Testi- mony. — It is a rule of presumptions that ordinarily a witness who testifies to an affirmative is to be preferred to one who tes- tifies to a negative, because he who testifies to a negative may have forgotten. It is possible to forget a thing that did happen. It is not possible to remember a thing that never existed. Stitt v. EuideJcoper, 84 U. S. 17 Wall. 385,21 L. ed. 644. The distinction between positive and negative testimony may be illustrated thus : it is positive to say a thing did or did not happen; it is negative to say that a witness did not see or know of its having happened. Where the witnesses are equally credible, positive testimony will outweigh negative testimony. But testimony stated in a negative form is not always negative testimony; thus, where a witness swears positively that the de- fendant did not strike the blow, this is not negative testimony, but is entitled to equal weight with the testimony of another witness, who swears that he did strike. Negative testimony DUTY OF JUKY IN WEIGHING EVIDENCE. 229 may sometimes, however, equal positive in weight, and even exceed it; as for instance, where there is an inherent improbability in the positive testimony. Rapalje, Crim. Proc. § 231, citing- Mc- Connell v. State, 67 Ga. 633; Moon v. State, 68 Ga. 687; Johnson v. State, 14 Ga. 55; Delk v. State, 3 Head, 79; Coughlim v. People, 18 111. 266, 68 Am. Dec. 541. See Kapalje, Witnesses, §193. The weight of the negative testimony depends upon the obser- vation, whether exhaustive or slight. Murphy v. People, 90 111. 59. If the attention of the negative witness is concentrated on a particular point, his testimony may outweigh a witness who swears affirmatively, but whose attention has not been so concentrated. Reeves v. Poindexter, 53 N. C. 308; Malone, Crim. Briefs, p. 103. Full and conclusive proof, where a party has the burden of proving a negative, is not required, but even vague proof, or such as renders the existence of the negative probable, is, in some cases, sufficient to change the burden to the other party. People v. Pease, 27 K Y. 45. § 167. Nature and Scope of the Scintilla Doctrine. — De- cided cases may be found, where it is held that if there is a scin- tilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit : that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to rind a ver- dict for the party producing it, upon whom the burden of proof is imposed. Schuylkill & D. Imp. & R. Co. v. Munson, 81 U. S. 14 Wall. 448, 20 L. ed. 872; Pleasants v. Fant, 89 U. S. 22 Wall. 120, 22 L. ed. 782; Parks v. Ross, 52 U. S. 11 How. 373, 13 L. ed. 735; Merchants Nat. Bank of Boston v. State Nat. Bank of Boston, 77 U. S. 10 Wall. 637, 19 L. ed. 1015; Hick- man v. Jones, 76 U. S. 9 Wall. 201, 19 L. ed. 553. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a char- acter that it would warrant the jury to proceed in rinding a verdict in favor of the party introducing such evidence. Ryder v. Wombwell, L. E. 4 Exch. 39. "A jury cannot be permitted to rind there is evidence of a fact 230 LAW OF EVIDENCE IN CRIMINAL CASES. where there is not any. A plaintiff cannot read his writ to the jury and claim a verdict without submitting any evidence. Nor can he do so where the evidence is too slight or trifling to be considered or acted upon by a jury. The evidence must have some legal weight. There is no practical or logical difference between no evidence and evidence without legal weight." "The old rule that a case must go to the jury if there is a scintilla of evidence has been almost everywhere exploded. There is no ob- ject in permitting a jury to find a verdict which a court would set aside as often as found. The better and improved rule is, not to see whether there is any evidence, a scintilla, crumb, or dust of the scales, but whether there is any upon which a jury can, in any justifiable view, find for the jury producing it, upon whom the burden of proof is imposed." Accordingly, the presiding judge directs a non-suit where the jury would not be authorized for the plaintiff under the evidence adduced. Thomp. Trials, § 2149, citing Connor v. Giles, 76 Me. 132; Beaulieu v. Portland Com- pany. IS Me. 294; Brown v. European & JV. A. B. Co. 58 Me. 384; Rourke v. Bullens, 8 Gray, 549; Pray v. Garcelon, 17 Me. 145; Head v. Sleeper, 20 Me. 311. As late as 1S85 the Missouri supreme court held that "whether there is any evidence, or what its legal effect may be, is to be declared by the court. And if there is no evidence to support an issue, it is the duty of the court so to instruct the jury;" but "if there is any evidence it must go to the jury, who are exclusive judges of irs weight and sufficiency," "however slight it may be, and whether direct or inferential." Tested by this rule, let us advert briefly to the character and nature, force and effect of the plaintiff's evidence, and also to the position and relation of the par- ties plaintiff and defendant, to each other and to the title and pos- session of the premises in controversy. Charles v. Patch, S7 Mm. 450. It should be added that the courts of this state manifest a very strong attachment for a rule that is abrogated entirely in many jurisdictions. This attachment is evidenced by the following authorities. Says v. Bell, 10 Mo. 496; Houghtaling v. Ball, 19 Mo. 84, 59 Am. Dec. 331; Chambers v. McGiveron, 33 Mo. 202; Been v. Plant, 12 Mo. 60; McEown v. Craig, 39 M<>. 156; Mat- thews v. St. Louis Grain Elevator Co. 50 Mo. 149; Chamberlain v. Smith, 1 Mo. 482; Speed v. Herrin, 4 Mo. 350; Obouchon v. Boon. 10 Mo. 41i'; Bobbins v. Alton Marine E. Ins. Co. 12 Mo. DUTY OF JURY IN WEIGHING EVIDENCE. 231 ■380; Dooly v. Jinnings, 6 Mo. 61; Todd v. Boone County, 8 Mo. •432; Winston v. Wales, 13 Mo. 569; Clark v. Hannibal & St. J. R. Co. 36 Mo. 202; Lee v. David, 11 Mo. 114; Meyer v. Pacific R. Co. 40 Mo. 151; Glasgow v. Cqpeland, 8 Mo. 268; Hughes v. Ellison, 5 Mo. 110; Morton v. Reeds, 6 Mo. 64; Emerson v. /Sft-wr- .<7 Cal. , . , '. , . 7*'> Am. Dec. 505. In People v. Bowers, 79 Cal. 41."), a very recent California case, the court re- viewed the evidence in a capital case, where it was conflicting, 10 24:2 LAW OF EVIDENCE IN CRIMINAL CASES. and granted a new trial. State v. Forsythe, 89 Mo. 6G9; Penn- sylvania It. Co. v. Zebe, 33 Pa. 318. The appellate court will refuse to entertain a motion for a new trial on the ground of the insufficiency of evidence, when it ap- pears that some proof was offered in the court below which tends to sustain the verdict rendered. This is well settled law.. Wherever there is some evidence to sustain the material points of the indictment, there will be no reversal of the verdict. This position has been reaffirmed as late as 1891 by the appellate court of Indiana in the case of Baker v. State, 2 Ind. App. 517. §177. Verdict against Weight of Evidence. — In Ross v. Overton, 3 Cal. 309, 2 Am. Dec. 552, Judge Koane, delivering the resolution of the whole court, laid down the principle (in lan- guage which has since been cited and approved in many cases) thus : A new trial, on the ground that the verdict is contrary to evidence, "ought to be granted only in case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers." In Brugh v. Shanks, 5 Leigh, 598, Judge Carr, after quot- ing the above language of Judge Roane, says : "These remarks are applied to the court which presides at the trial, and has all the advantages (possessed by the jury) of seeing and hearing the witnesses; how much more strongly do they apply to an appellate court, deprived of these all important aids in eviscerating truth I But here they apply to a multo fortiorari; for not only have the triers appointed by law found the verdict, but the court which heard the witnesses has refused the new trial. In such a case the 'deviation' must be gross and palpable indeed, before I could asree to interfere with the verdict." Upon an application of this kind the appellate court is always loth to disturb the judgment of the court below. On this point, Christian, J, delivering the opinion in Pryor v. Com. 27 Gratt. 1010, said : "We should act with great caution in granting new trials in cases where the new trial is asked solely upon the ground that the verdict is contrary to the evidence, and great weight is always given and justly so, to the verdict of the jury and judg- ment of the court in which the case is tried. The cases are very rare in which this court interferes, and it is only in a case where the evidence is plainly insufficient to warrant the finding of the- jury." McDomiel v. Com. 77 Ya. 281. EVIDENCE ON APPLICATION FOE A NEW TKIAL. 243 It is not enough to justify interference with the verdict that the court on the case before it can see that the evidence made the case a conflicting or doubtful one, demanding the solution of a verdict to settle the doubt or conflict; but it must be quite appar- ent that the conflict has been settled by a verdict against the sub- stantial and preponderating weight of evidence. It was said by Brady, J.,in People v. Panniza, JS". Y. (not rep.) that "justice requires a new trial whenever the court can perceive in reviewing all the evidence, either that a verdict of acquittal should have been rendered or that the jury were led by reason of prejudice into convicting the defendant of a grade of offense altogether unwarranted by the evidence." See also Prather v. Com. 85 Ya. 122. It is perhaps superfluous to add that where the verdict is wholly unsupported by the evidence the appellate court will reverse. State v. Hunt, 91 Mo. 490. "Where one was convicted of an assault on his wife with intent to kill and murder her, and the proof was clear that the accused did shoot his wife, it was held, that the question whether the shooting was an accident, or was intentional, was a question of fact for the jury; and that when they have settled that fact adversely to the defendant, without passion or prejudice, in accordance with the evidence, it was not the province of an appel- late court to disturb the verdict. Dunn v. People, 109 111. 635. § 178. Newly Discovered Evidence. — After discovered evi- dence, in order to afford a proper ground for the granting of a new trial, must possess the following qualifications: It must have been discovered since the former trial. It must be such that a reasonable diligence on the part of the defendant could not have secured it at the former trial. It must be material in its object, and not merely cumulative and corroborative, or collateral. It must be such as ought to produce, on another trial, an oppo- site result on the merits. It must go to the merits, and not rest on merely a technical defense. State v. Carr, 21 1ST. IT. 166; Com. v. Murray, 2 Ashm. 41; Com. v. Williams, 2 Ashm. 69; Thompson v. Com. 8 Gratt. 637; Read v. Com. 22 Gratt, 924; Carter v. State, 1«; Ga. 637; State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309; Moore v. Philadelphia Bank, 5 Serg. & R. 41; Whart. Crim. PI. & Pr. § 855. 244 LAW OF EVIDENCE IN CRIMINAL (MSES. "Where the refusal to grant a new trial on the ground of newly discovered evidence is a matter largely within the discretion of the trial court, yet, if it appears that the evidence is material, and could not have been discovered with reasonable diligence, the supreme court will reverse the ruling. "Where the object of evi- dence is to prove an alibi, the rule making newly discovered cumulative evidence insufficient to command a new trial has no application. State v. Stowe, 14 L. R. A. 609, 3 Wash. 206. New trials for newly discovered evidence ought only to be granted after the most careful scrutiny of the evidence alleged to have been discovered, and when it raises a violent presumption that a different result would i)e reached upon a second trial. Thomp. Trials, § 2759; Pines v. Driver ', 100 Ind. 315; Cooper v. State, 120 Ind. 377. A new trial should not be granted upon the application of defendant, where the alleged newly discovered evidence is incon- sistent with the testimony of the defendant on the former trial. People v. Jlovey, 1 1ST. Y. Grim. Rep. 324. And evidence which existed and was known to defendant before the former trial can- not be considered newly discovered, because he has since discov- ered that it might have been important if used on the trial. Peo- ple v. Ilovey, supra. So if the accused relies, for the purpose of proving the character of the crime, upon the condition of his mind at the time of doing the act, he must proceed upon the trial to establish that condition by the production of all the evidence bearing upon the question within his knowledge, or which he could have procured by proper diligence. And. although there was the grossest laches, still, if the evidence was important, the court, in a case in which human life is at stake, should be very guarded in depriving the prisoner of the slightest right he may possess. Evidence merely cumulative in its character, can never afford proper ground for a new trial. People v. Piles, 5 West Coast Rep. 829; State v. Hyland, 19 West Coast Rep. 622. § 179. Admission of Illegal Evidence as Ground for. — The reception of illegal evidence is presumptively injurious to the other party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt, that the result would have been the same if the objectionable proof had been rejected, the error furnishes no ground for reversal. Many of the EVIDENCE ON APPLICATION FOR A NEW TRIAL. 245 earlier cases in New York favored a departure from the English rule on this subject, and maintained that it was impossible to determine whether the evidence improperly received might not have had a controlling influence upon the jury. Marquand v. Webb, 16 Johns. 89; Osgood v. Manhattan Co. 3 Cow. 621; Clark v. Vorce, 19 Wend. 232; People v. Wiley, 3 Hill, 214. The later decisions have modified this doctrine, in harmony with the gen- eral current of English and American authority, and we think they rest upon sound principles. The intendment is, that an error of the judge, whether in the admission of evidence or in his instructions to the jury, was prejudicial to the party, but there is no more difficulty in the one case than in the other, in determin- ing, upon the whole record, whether, in the particular case, such intendment is repelled.- Where it is apparent and obvious that the supposed error did not and could not affect the result, nor work either injury or injustice to the party accused, it does not call for a reversal of the conviction. Shorter v. People, 2 X. Y. 193, 51 Am. Dec. 280; City Baal: of Brooklyn v. Dearborn, 20 KY. 246; Forrest v. Forrest, 2:. X. Y. 510; Smith v. Paton, 31 K Y. G6; State v. Ford, 3 Strobh. L. 517. note; Rex v. Ball, Russ. & R. 132; Bex v. Tinkler, 1 East, P. C. 384; Horford v. Wilson, 1 Taunt. 12; Doe v. Tyler, Me. 564; Tinny v. Midvam y, S ( >r. 522; Tucker v. Henniker, 41 N. H. 318. In criminal cases the rule is more stringent. Ferguson v. State, 49 End. <">■'!; /'>>>/>/>? v. Quick, 5s Mich. M24; People v. Dane, 59 Mich. 552; State v. King, 44 Mo. 238. It is the duty of the court to stop the district attorney on its own motion when he states facts not before the jury, or uses vituperation and abuse predicated upon alleged facts not in evidence, and calculated to create prejudice to the pris- oner. State v. Gutekunst, 2 1 Kan. 252; Jenkins v. North Caro- l/ma Ore Dressing Co. 65 JS\ C. 563; State \. William*, 65 X. C. 216 LAW OF EVIDENCE IN CRIMINAL CASES. 505; State v. Smith, 65 K C. 369. A new trial was ordered where the court sustained an objection to the language, and admonished the attorney that it was improper. Long v. State, 56 Ind. 186; State v. Graham, 62 Iowa, 108. Where the court in a capital case interfered, rebuked the attorney, and instructed the jury to pay no attention to the statements, but it was impossible to say that no injury resulted to the defendants therefrom, a new trial was granted. People v. Bowers, 79 Cal. 415. A very remarkable case illustrative of these remarks is reported in State v. Olds, 19 Or. 397. The case was one of homicide, and was invested in many theatrical incidents owing to the promi- nence of the parties, and the additional fact that the bunco fra- ternity of two states had combined to effect the release of the accused. It was vehemently contended by the district attorney in his address to the jury, that the gamblers in Portland were at the bottom of the affair, that they had compassed the death of Weber, had employed Olds to carry out their design, and raised money to clear him and defeat the ends of justice. And he strongly inti- mated that the police force of the city had lent its aid and influ- ence .to further the scheme. This harangue of the district attorney to the jury was highly sensational, and served, no doubt, to incite their passions and prejudice against the accused; but, unless justified by the evi- dence, was quite out of place. The trial of a fellow being for murder, where the penalty is death, devolves a grave responsibil- ity upon the attorney for the state as well as upon the court and jury, and a conviction should never be urged unless justified by the proof, fairly weighed and considered. It is to ascertain the truth and apply the law, and a resort to imagination or fancy in order to incite the passions and prejudices of the triers, is a devi- ation from the true and proper course. To convict and put to death a human being through the influence of prejudice and ca- price is morally murder, and more pernicious in its consequences by far, than the escape of a guilty person; and the forms of law should never be prostituted to such a purpose. It has been held repeatedly that the court has no author- ity to review the decision upon a motion for a new trial; and has been intimated very strongly a number of times that the question as to the sufficiency of evidence to support the judgment or con- EVIDENCE ON APPLICATION FOR A NEW TRIAL. 247 viction, must have been first passed upon in the trial court. Where the evidence in. a capital case is shown to be clearly in- sufficient to warrant a conviction, it would be the duty of this court, under its supervisory power over the circuit courts, to re- verse the conviction and order a new trial. "It is," says Black- stone, "the noble declaration of the law that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular." Bl. Com. (Cooley's >ed.) 354; State v. Olds, 19 Or. 397. Our extended comment on the foregoing case is fully war- ranted in view of the frequency with which the records in criminal cases under the review of the appellate court are en- cumbered with allegations touching the error of the trial court in tolerating the respective counsel in commenting upon the case as to matters not warranted by the evidence. In further exposi- tion of this point I cite a case from California where the error complained of infected the record through the joint effort of the prosecuting attorney and the trial court. On the reversal the court says : "Unfortunately, the judge allowed himself rather frequently to question the witnesses, always in the interest of the prosecution, and often by putting questions which were leading and suggestive. We think the jury would be sure to get the im- pression that the judge thought the defendant guilty. Still more objectionable was the conduct of the prosecuting attorney. It is true, the court properly interfered, rebuking the attorney, and instructing the jury to pay no attention to the statements. But the statements were all calculated to influence the jury in a case of this character, and it is impossible for us to say that no injury resulted to the defendant therefrom. We think, upon a careful examination of the record, that the interests of justice require a new trial before a judgment of this gravity should be carried into execution." People v. Bowers, 79 Cal. 415. The Illinois supreme court has placed the brand of condemna- tion upon a very common method much in vogue among our prosecuting attorneys. I refer to the almost universal habit of commenting upon the failure of the accused to take the witness stand. Upon this subject the court says : "It is to be regretted that counsel who assisted the prosecuting attorney referred, in his argument to the jury, to the fact that plaintiff in error was not placed on the stand as a witness, as one 248 LAW OF EVIDENCE IN CRIMINAL CASES. of the reasons why he should be convicted. It is true, that when stopped by the court, he said it was inadvertently done, and the jury were directed by the court to disregard it, who can know what effect it may have had on the jury in forming their verdict? Such comments are prohibited by the statute, and it is strange that any attorney should so far forget the rights of the accused, and his professional duty, for a moment, even in the heat of dis- cussion; but he said it was inadvertent, and we are loth to believe that any attorney would intentionally act so unfairly and unpro- fessionally. We cannot conceive that any member of the bar could deliberately seek by such means to wrongfully procure a conviction and the execution of a fellow being, when his highest professional duty to his client only requires him to see that there is a fair trial according to the law and the evidence. Where suck things are done, whether intentionally or inadvertently, it may make an impression on the minds of the jury that nothing can remove. And who can say that this inadvertence may not have produced the verdict of guilty ? " Angelo v. People, 96 111. 209, 36 Am. Eep. 132. Improper language of prosecuting attorneys has frequently been made the basis of severe animadversion by the Missouri courts. State v. Mahly, 68 Mo. 316; State v. Lee, 66 Mo. 165; State v. R< d, 71 Mo. 200; State v. Martm, 71 Mo. 517. See also Cross v. State, 68 Ala, 176; Brown v. Swineford, 11 Wis. 282, 28- Am.. Kep. 582; State v. Jackson, 95 Mo. 623. § 181. Failure to Object to the Admission of Improper Evidence no Ground For. — Where evidence that is objection- able is permitted to go to the jury without objection, and it is such as will prove a fact, a verdict founded on it will be sus- tained. This is in harmony with the general rule substantially thus stated by some of the authorities : "A party objecting to a variance between the pleadings and the proof must make his ob- jection at the proper time during the trial, and, if he does not, he cannot afterward avail himself of the objection." Belknap v. Sealey, 11 K Y. 113, 67 Am. Dec. 120; ' Manice v. Brady, 15 Abb. Pr. 173; Shall v. Lathrop, 3 Hill, 237; Pike v. Evans, 15 Johns. 213; Doyle v. Mulren, 7 Abb. Pr. K S. 258. In Roberts v. Graham, 73 U. S. 6 Wall. 578, 18 L. ed. 791, the Supreme Court of the United States said : "The objection of a variance not taken at the trial, cannot avail the defendant as an 'error in the-. EVIDENCE ON APPLICATION FOR A NEW TRIAL. 249 higher court, if it could have been obviated in the court below;, nor can it avail him on a motion for a new trial." This general doctrine was applied in a criminal case in Gross v. People, 47 111. 152, 95 Am. Dec. 474. It has often been held that a verdict will be sustained on evidence which would have been excluded had proper objection been made. Stockwell v. State, 1< >1 Ind. 1; Riehl v. Evansville Foundry Asso. 104 Ind. 70; Yeagerx. Wright, 112 Ind. 230; McFadden v. Frits, 110 Ind. 5; Indiana, B. & W.R. Co. v. Finnell, 116 Ind. 414. Without intimating that the decisions last cited are not declar- atory of the law, is it not obvious that at least in the trial of a capital case, a conviction based upon illegal evidence should be set aside? "If the evidence, although not strictly admissible, is not of a character to damage the defendant, or, as it has been otherwise expressed, if the court can clearly see that the error has not influ- enced the result, it is no ground for a new trial." Draper v. State, 4 Baxt. 254; Wilson v. Smith, 5 Yerg. 3S1; Clark v. Rhodes, 2 Heisk. 206; Maddin v. Head, 1 Lea, 664; McAdams v. State, S Lea, 463. "And ordinarily, when a prisoner's guilt is made out clearly by positive testimony, it should be no ground for a new trial that evidence was introduced which was not strictly admissible, if the court, can see that the defendant was not prejudiced thereby." McAdams v. State, supra; Turner v. Steite, 89 Tenn. 547. § 1S2. Doctrine of Invited Error Considered. — If the party opens the door to the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened. Perkins v. Hayward, 124 Ind. 44.~>. See similar rulings of the same court in the cases of Lowe v. Ryan, 9 I Ind. 450; Meranda v. Spurlin, 100 Ind. 380; Hinton v. Whit- taker, 101 Ind. 344; Dinwiddie v. State, 103 Ind. 101; Hobos v. Tippecanoe <_'<>"ntij Comrs. 116 Ind. 376; Nitche v. Earle, 117 Ind. 27"; Mosier v. Stoll, 119 Ind. 244. Judge Elliott in Dinwiddit v. State, supra, >: of the ques- tion involved in that case: "As the question comes to us we can not say that the appellants did not. on cross-examination, intro- duce evidence of the same character as that which they now seek to make available for a reversal of this judgment. Nor can we presume that there was nothing done making the evidence com 260 LAW OF EVIDENCE IN CRIMINAL CASES. petent without a departure from settled and familiar principles. It is, and long has been, a settled rule that all reasonable intend- ments will be indulged in favor of the ruling of the trial court. So, too, it is well settled that a party who seeks to overthrow the judgment of a court must affirmatively show an erroneous ruling and that it was prejudicial to him. It is evident that, under these settled rules, the appellants cannot successfully demand a rever- .sal of the judgment upon the ground that there was error in admitting the testimony to which we have referred, for it does not affirmatively appear that there was error of which they can take advantage, nor is the presumption which we are bound to yield to the rulings of the trial court overthrown. We do not decide whether the evidence was or was not per se incompetent; we decide that the record does not show that the appellants are in a situation to successfully make any question upon its intrinsic character." It is an error of law to find a material fact when there is a total absence of evidence to sustain it, and that error of law is review- able in the appellate court upon due and proper exceptions. Mur- ray v. Harway, 56 N. Y. 337; Daffy v. Masterson, 44 JS". Y. 557; Mason v. Lord, 40 K Y. 477; Pollock v. Pollock, 71 N. Y. 137. § 1S3. Technical Errors Disregarded in Motion lor. — In Hitzman v. People, 110 111. 303, the court says: "If it is not already understood, it is high time it should be, that where a case is clearly made out against the accused, and the jury have so found, this court will not reverse for a mere technical error, which it can see could not have affected the result." Taylor, in the recent edition of his work on the law of evi- dence, in speaking of the scope and meaning of substantial jus- tice, says that — "Even judges are beginning to discover that substantial justice is of more real importance than mere technical precision. Wise men should ever bear in mind that the objects of the acts which authorize amendments in criminal proceedings is to render pun- ishment more certain by neutralizing the effect of trivial vari- ances, which have constantly protected the wrong-doer. "So long as the least rational doubt exists respecting the guilt of a prisoner, it is only fair that the ample shield of justice should screen him from injury; that jurors should weigh with jealousy the evidence against him, and judges should see more clearly that EVIDENCE ON APPLICATION FOR A NEW TRIAL. 251 (the act with which he is charged is an offense against the law. But when courts of justice go further than this and permit the law to be defeated by technical errors, which cannot by possibility mislead a defendant, and which have nothing to do with the sub- stantial merits of the case, they take the most effectual means of rendering the administration of the criminal law a fitting subject for contempt and ridicule. In civil causes, the rules authorizing • amendments receive a liberal construction, and properly so. Why, then, should an absurdly strict construction be apj)lied in criminal courts? The statutes themselves warrant no such dis- tinction, and to introduce into the interpretation of them the old doctrine, strictissimi juris, is to misunderstand and misapply the meaning of that doctrine and to make the commandments of the legislature of more effect through your traditions." The foregoing reasoning may be relied upon to support the rule now well understood that no new trial can be granted for newly dis- covered evidence which merely tends to discredit a witness. Hunt v. State, 81 Ga. 140. In Cooley, Const. Lim. (5th ed.) 501, 505, it is laid down: "It is a general rule that irregularities in the course of judicial pro- ceedings do not render them void. An irregularity may be defined .as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case." Kelly v. People, 115 111. 583. The tendency of modern legislation, as well as judicial decision, is to do away, as far as possible, with the subtle and refined dis- tinctions of the common law, when they interfere with substantial justice. Hutchinson v. Com. 82 Pa. 172. And what makes this proposition so peculiarly offensive to the criminal classes is the impossibility of refuting it. § 181. Misconduct of Jury as Ground for. — A defendant in a criminal case is not entitled to a new trial merely because there is evidence showing the misconduct of a juror, unless it be shown that such misconduct was prejudicial to the rights of the defend- ant, or such a state of facts is shown from which it may fairly be presumed that the defendant's rights were prejudiced. II< lining v. State, 10G Ind. 38G, 55 Am. Kep. 756; Mergentheim v. State, L07 Ind. 5(17; Riley v. State, 9 5 Ind. 446; Cooper v. State, L20 Ind. 377; Drew v. State, 124 Ind. 9. The same conclusion was reached in People v. .!/< nhen, 36 Hun, 252 LAW OF EVIDENCE IN CRIMINAL CASES. 91, 3 ~N. Y. Crim. Rep. 233, where it was held that a verdict of a* jury in a criminal case will not be set aside for irregularity or improper conduct upon the part of jurors, unless it be shown that the defendant was prejudiced thereby. Where subsequent to the verdict the alienage of one of the jurors is shown, while that fact would have been a just ground for challenge, it is no reason for avoiding the verdict and granting a new trial; nor where a juror has been shown to have expressed a disqualifying opinion as to the subject-matter of the trial; or where he was not a citizen of the county or state, or is shown to have been related to the accused within the prohibited degrees. Brown v. La Crosse, C. G. L. & C. Co. 21 Wis. 51; State v. Shelledy, 8 Iowa, 477; Hollingsworth v. Duane, 4U.S.4 Dall. 353, 1 L. ed. 864; State v. Quarrel, 2 Bay, 150, 1 Am. Dec. 637; State v. How- ard, 17 ~N. H. 171; Simjyson v. Pitman, 13 Ohio, 365; Presbury v. Com. 9 Dana, 203; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; Jones v. People, 2 Colo. 351; Chase v. People, 40 111. 352;. Mt. Desert v. Cranberry Isles, 46 Me. 411; Hull v. Albro, 2 Disney, 147; Pomaine v. State, 7 Ind. 67; Thompson v. Page, 16 Ca'l. 78; Poseborough v. State, 43 Tex. 570; Costly v. State, 19 Ga. 614; Kennedy v. Com. 14 Bush, 340; McLellan v. Crofton, 6 Me. 307; Orme v. Pratt, 4 Cranch, C. C. 124; Taylor v. Gree- ly, 3 Me. 204; Baker v. State, 4 Tex. App. 227; Smith v. Parle, 118 Mass. 531. Where the attorney for the accused fails to inquire as to the alienage and competency of a juror at the time the trial jurors are being selected, such failure will be construed as a waiver of the defendant's right to challenge. Jeffries v. Randall, 14 Mass. 205; State v. Punch, 17 Iowa, 365; JEstep v. Wattrous, 45 Ind. 140; State v. Shelledy, supra', Alexander v. Dunn, 5 Ind. 122; Keener v. State, and Chase v. People, supra; State v. Patrick, 3 Jones, L. 443; Collier v. State, 20 Ark. 36; Croy v. State, 32 Ind. 384; Wilder v. State, 25 Ohio St. 555; Tweedy v.Briggs, 31 Tex. 74; Beak v. State, 20 Ohio St, 228; State v. Parks, 21 La. Ann. 251. It is erroneous to allow the jury, after retiring to consider of their verdict, to have access to law books of any description. They must get their instructions as to the law of the case from the court, and not from their own perusal of the books. John- son v. State, 27 Fla. 245. EVIDENCE ON APPLICATION FOR A NEW TJRIAL. 253 It has been held that a new trial should be granted for miscon- duct of the jury in consulting law books on the crime of rape during their deliberations. Proffatt, Jury Trials, 404; Mt rrill v. Nary, 10 Allen, 416; State v. Smith, 6 R. I. 33; Harrison v. Hom.ce, 37 Mo. 185; Xru-kirk v. State, 27 Ind. 1; Burroics v. JJnwin, 3 Car. & P. 310; Ilartung v. People, 4 Park. Crim. Pep. 311), affirming 8 Abb. Pr. 132, 17 How. Pr. 85; Manuel v. People, 48 Barb. 54S; Coffin v. Gephart, L8 Iowa. 256; Mitchell v. Carter, 14 Hun, 44S; Taylor v. lltxford, 13 Johns. 487; Zo^ v. Macon, 2 Strobh. L. 178. In a very recent case reported from the state of Washington, it was conceded that, while the rule that the separation of the jury in a criminal case prior to the receipt of its verdict by the court was a misconduct which would entitle the defendant to a new trial was a good one when made, and could not be disre- garded at that time without greater danger of seriously prejudic- ing the substantial rights of the defendant, as then the jury could not render a written verdict in a criminal case, but must render it ore tenus, and that, under such a provision of law, if a jury Mere permitted to separate prior to the rendering of the verdict, they might be subjected to influences dangerous to society and subversive of the rights of the defendant. Anderson v. State, 2 Wash. 183. i Where the proof of drinking is clear and undisputed, and that it was done while the jury were actually deliberating upon their verdict, in a capital case, a verdict of conviction should not be allowed to stand. This rale is recommended by considerations far too obvious to require formal justification. See P><>jilc v. .Gray, 61 Cal. 164, 183, 44 Am. Rep. 549; Leighton v. Sargent, 31 JS r . H. 119, 34 Am. Dec. 324: Brant v. Fowler, 7 ; - 562; People v. Douglass, 4 Cow. 26; Wilson v. Abrahams, 1 Hill, 2*'7; Jones v. State, 13 Tex. 168, 62 Am. I )ec 550; State v. A'''/'///. 1 7 Iowa, 39; Ryan v. Harrow, 27 Iowa, 494, 1 Am. Pep. 302; Davis \. State, 35 Ind. 496, 9 Am. Rep. 760; State \. Bullard, 16 X. H. 139; Pelham v. Page, 6 Ark. 535; cV/vyy v. McDaniel, 4 Harr. (Del.) 367. In the case of People v. Douglass, supra, the court said: "It will not do to weigh and examine the quantity which may have been taken by the juror, nor the effect produced." And in Li'njldori v. Sargent: "For the cause that brandy was furnished 254: LAW OF EVIDENCE IN CRIMINAL CASES. to the jury, and drunk by several of them, while deliberating- upon the cause, after retiring to form their verdict, we think the verdict must be set aside. The quantity drank was probably small, but we cannot consent that that fact should make a differ- ence." So in State v. Baldy, 17 Iowa, 39 : "The parties have a clear right to the cool, dispassionate and unbiased judgment of each juror, applied to the determination of the issues in the cause; and the use in any degree of that which stimulates the passions, and has a tendency to lessen the soundness of judgment, is itself con- clusive evidence that the party who has the right to the exercise of that dispassionate judgment has been prejudiced in not having it, as perfect as it existed in the juror when accepted, applied to the determination of the cause. If this is true as a general rule, and as applicable to civil cases, a fortiori is the rule applicable in criminal cases, and especially in this case, in which the offense charged involves obedience to passions stimulated more than oth- ers by the use of spirituous liquors, and, of course, in its correct determination, requiring the most careful guarding against undue influence from them." People v. Lee Chuck, 78 Cal. 317. After a careful examination of the subject, the general doctrine is announced as this : "A verdict will not be vacated, even in a capital case, on account of the misconduct or irregularity of the jury, unless it be such as might affect their impartiality or dis- qualify them from the proper exercise of their functions." Titus v. State, 49 K J. L. 36. § 185. Evidence of Irregularity in the Composition of the Grand Jury. — Chitty, in his work on Criminal Law, vol. 1, p. 307, says : "It is perfectly clear that all persons serving upon the grand jury must be good and lawful men; by which it is in- tended that they must be liege subjects of the King, and neither aliens nor persons outlawed even in a civil action; attainted of any treason or felony; or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. And if a man who lies under any of these disqualifications be returned he may be challenged by the prisoner before the bill is presented or, if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony; for which purpose he may be allowed the assistance of counsel on producing in court the record of the outlawry, attainder, or conviction, on which the incompetence of the jurymen rests." EVIDENCE ON APPLICATION FOR A NEW TRIAL. 255- This is, undoubtedly, the general rule as to the manner in which objection may be taken to the personnel of the grand jury though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The require- ment of answering over to the felony in connection with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits if he should fail in sustaining his special plea; a precaution which probably would not be neces- sary in our practice. United States v. Gale, 109 XJ. S. Go, 27 L. ed. 857. The method of selecting, drawing, summoning and impaneling a grand jury or a trial jury, is prescribed by statutory law. Wynehamer v. People, 13 X. Y. 127; Young v. State, 6 Ohio, 436; Cruger v. Hudson River R. Co. 12 N. Y. 199; People v. Buff, Go How. Pr. 365; McQuillen v. State, 8 Smedes & M. 587. And any evidence tending to show the failure in the observance, the statutory recital is competent. The personnel of the grand jury must comply with the law in order to constitute a legal body; and any indictment found by a panel drawn in contravention of the law is a mere nullity. Clare v. State, 30 Md. 164; State v. Symonds, 36 Me. 128; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 710; Chase v. State, 20 X.J. L. 21S; Whitehead v. Com. 19 Gratt. 610; Raids v. State, 8 Smedes & M. 599; McQuillen v- State, 8 Smedes & M. 599; Stokes v. State, 21 Miss. 621; Barney v. State, 12 Smedes & M. 6S; Miller v. State, 33 Miss. 356; Doyle v. State, 17 Ohio, 222; State v. Williams, 5 Port. (Ala.) 130; Finley v. State, 61 Ala. 201; Scott v. State, 63 Ala. 59; B< rry v. State, 63 Ala. 126; Couch v. State, 63 Ala. 163; State v. Conm r, 5 Blackf. 325; Dutellx. State, 4 G. Greene, 125; State v. Jennvngs, 15 Rich. L. 42; State v. Pratt, 15 Rich. L. 47; State v. Bryce, 11 S. C. 342; Wilburn v. State, 21 Ark. 198; State v. Morgan, 20 La. Ann. 412; State v. Jacobs, 6 Tex. 99; Barton v. State, 12 Neb. 260; Green v. State, 59 Md. 123. 13 Am. Rep. 512. In State v. Wood, 53 X. H. 484, Sargeant, Ch. J., states the weight of authority now to be, "that a grand juror may be com- pelled to testify when necessary to promote the cause; of the jus- tice, what the witnesses before the grand jury testify to, either to contradict such witnesses or otherwise." In State v. Benner, 64 Me. 207, the court says : "But the oath of the grand juror does not prohibit his testifying what was 256 LAW OF EVIDENCE IN CRIMINAL CASES. sworn before the grand jury, when the evidence is required for the purposes of public justice or the establishment of private rights. . . . So in all cases when necessary for the protection of the rights of parties, whether civil or criminal, grand jurors may bo witnesses. Such seems the result of the most carefully •considered decisions in this country." In Bur dick v. Hunt, 43 Ind. 381, it is said that "the oath of grand jurors does not prevent the public, or an individual, from proving by one of the jurors, in a court of justice, what passed before the grand jury." In Jones v. Turjyin, 6 Heisk. 181, it is said that "when these -ends have been accomplished the entire purpose of secrecy is effected, and if at a subsequent period it shall become necessary to the attainment of justice and the vindication of truth and right in a judicial tribunal that the conduct and testimony of prosecu- tors and witnesses shall be inquired into, there is no reason why it should not be done." In Gordon v. Com. 92 Pa, 216, 37 Am. Rep. 672, it is said that "on no sound principle can it be said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication, so that it shall not be shown under the direction of the court, whenever it becomes ma- terial in the administration of justice. It is material when the evidence is necessary to protect public or private rights." "When for the purposes of public justice, or for the protection of private rights, it becomes necessary, in a court of justice, to disclose the proceedings of the grand jury, the better authorities now hold that this may be done. It is obvious that there are certain transactions of the grand jury room which it can never be for the interests of justice to disclose; for example, what particu- lar jurors concurred in or opposed the finding of the indictment, what opinions were expressed by various members of the body. In respect to such matters the injunction of secrecy may well be perpetual." Thomp. & M. Juries, § 703; Ex parte Sontag, 61 Cal. 525. The question before the grand jury being whether a bill is to be found, the general rule is that they should hear no other evi- dence but that adduced by the prosecution. But it has been doubted whether, as they are sworn to "inquire,'' they may not if the case of the prosecution appear imperfect, call for such wit EVIDENCE ON APPLICATION FOR A NEW TRIAL. 257 nesses as the evidence they have already heard indicates as neces- sary to make out the charge. Under such a suggestion, it would become the duty of the prosecuting officer to cause the requisite witnesses to be summoned; and it is his duty in any view to bring before the grand jury all competent witnesses to the res gestce. But it is not the usage to introduce, in matters of confession and avoidance, witnesses for the defense, unless their testimony becomes incidentally necessary to the prosecution. Whart. Crim. PI. & Pr. (8th ed.) § 360, citing 2 Hawk. P. C. chap. 25, § 145; 2 Hale, P. C. 257; 4 Bl. Com. 303; United States v. Palmer, 2 •Cranch, C. C. 11; United States v. Lawrence, 4 Cranch, C. C. 518; 1 Chitty, Crim. Law, 318; Dickinson, Quarter Sessions, 174, 175; ■Cox v. Coleridge, 1 Barn. & C. 37, 51; Reg. v. Borron. r 3 Barn. & A. 432; Re Crowe, 1 Chitty, 214; Duty of Grand Jury, Addison's Charges (Pa.) 42; United States v. White, 2 Wash. C. C. 29; United States v. Blodgett, 35 Ga. 336; Resjnihlica v. Shaf- fer, 1 U. S. 1 Dall. 236, 1 L. ed. 115. § 186. Evidence of the Record on Appeal. a. Rules in Admitting and Excluding Evidence. — Where a point upon which evidence is excluded is conceded by an admission made during the trial, or by an admission in the plead- ings as well as where it is established by uncontradicted evi- dence, error in excluding additional evidence is generally said to be harmless, although it would, perhaps, be more accurate to say there is no error. Permitting the introduction of evidence that is clearly immaterial is, as a general rule, harmless even if errone- ous. But this rule is one to be applied with some care, since it is not always possible for the appellate tribunal to ascertain what effect apparently immaterial evidence may have had upon a jury. It is, at all events, not safe to apply the rule strictly or too gen- erally. AVhere it affirmatively appears or where it may be fairly inferred that in the particular case the erroneous admission of the evidence could not have influenced the verdict, the error is always to be regarded as harmless. As evidence seemingly immaterial may sometimes arouse prejudice, create undue passion, to carry the jury to collateral issues, it must be true that there are cases forming exceptions to the settled general rule. Where objection is made, but no evidence is introduced, the error in overruling the objection is rendered harmless for the reason that the ruling 17 258 l LAW OF EVIDENCE IN CRIMINAL CASES. wasuninfluential. It is held in one of our cases that "illegal' proof of what need not be proved at all will not vitiate a verdict." But this doctrine requires some little qualification, for it is very clear that serious harm may be done by permitting a party to give incompetent evidence, although he may not be under any obliga- tion to give any evidence upon the point. Elliott's Appellate Procedure, § 641, citing Citizens State Bank v. Adams, 91 Ind. 280; Ilolliday v. Thomas, 90 Ind. 80S; Cooper v. Blood, 2 Wis.. 62; State v. Avery, 17 Wis. 673; Heath v. Keyes, 35 Wis. 668; Axtel v. Chase, 83 Ind. 546; Davis v. Liberty dc C. Gravel Road Co. 84 Ind. 36; McKesson v. Sherman, 51 Wis. 303; Davis v.. Fulton, 32 Wis. 657; West Coast Lumber Co. v. Netvkirk, 80 Cal. 275; Dickinson v. Coulter, 45 Ind. 445; Indianapolis, P. & C. R. Co. v. Anthony, 43 Ind. 1S3; Persons v. McKibben, 5 Ind. 261, 61 Am. Dec. 85; Re Crawford, 113 K Y. 560; Kinsley v. Morse, 40 Ivan. 577; Oshkosh Gaslight Co. v. German ia F. Ins. Co. 71 Wis. 454, 5 Am. St. Eep. 238; Latterett v. Cool; 1 Iowa, 1, 63 Am. Dec. 428; Barton v. Kane, 17 Wis. 38; Wmkley v. Foye, 33 K II. 171; Edgerly v. Emerson, 23 N. II. 555; &/^> herd v. Lanfear, 5 La. 336: Brooks v. Duteher, 22 Neb. 644; Hanson v. Elton, 38 Minn. 403; Robinson v. Shanks, 118 Ind. 125; JTfcm v. Hqfheimer, 132 U. S. 367, 33 L. ed. 373; McDer- mitt v. Hubanks, 25 Ind. 232; Wayne County Tump. Co. v. Berry, 5 Ind. 286; Wangle v. State, 101 Ind. 284; Gebhart v. Burkett, 57 Ind. 37S; Lovinger v. Madison First Nat. Bank, 81 Ind. 354; i?^ v. Morehead, 110 Ind. 451; Graves v. Campbell. 74 Tex. 576; r«y^ v. Baltimore & a i?. &?. 33 W. Ya. 39; Bartlett v. Beardmore, 74 Wis. 485; Fordyce v. Mc Cants, 55 Ark. 509; ifofo/' v. Dessauer, 49 Ind. 28; Findley v. tftafe, 5 Blackf. 576; Beagles v.Sefton, 7 Ind. 496; Linardv. Grassland. ,10 Tex. 462; Donley v. <7 produce evidence to relieve the horrors of their position through the media of the court's process. And, while we are not prepared to countenance an indiscriminate excerpting from dissenting opin- ions by even such an eminent jurist as Judge Thornton has long been known to be, we are constrained to an exception in this instance. The opinion proceeds in the following language: "This process (of subpoena) cannot be denied to the defendant by any power of the state, legislative, executive or judicial. The constitution assures this right to a defendant accused of felony. It needs no statute to confer it. The constitution confers it, and it cannot be taken away by statute. "The law by its very terms refers only to a witness for the peo- ple, not to a witness for the defendant. It grants the right to- the defendant to have the deposition of his witness taken, when the witness is confined in the state prison or in the county jail of a county other than that in which the defendant is to be tried, in the manner provided for in the case of a witness who is sick, but he is not bound to have the testimony of the witness so taken. He can waive his constitutional right and have the deposition taken, should he so elect. But it is entirely at his option to have' the witness compelled to attend, or to have his testimony taken by deposition. . . . Doubtless the accused would elect to have the deposition taken, if the witness was unable from illness to attend, rather than lose his testimony. The legislature cannot . . . restrict one on trial in a criminal action to having the testimony procured by deposition. "The guaranty of the constitution ... is for the benefit of the defendant in criminal actions. JNo such guaranty is given SECURING THE ATTENDANCE OF WITNESSES. 269 to the people. . . . Convicted felons are now competent witnesses. But as at present advised, we are not prepared to hold that the legislature can . . . enact that a witness, ma- terial for the defense of a person accused and on trial for a felo- ny, shall be declared incompetent to testify for the defense. •Certain we are that no such legislation will ever be attempted while the constitution remains unchanged. It would be cruel to withhold such testimony from a person tried for an offense which may result in his deprivation of liberty. ''The guaranty that a defendant shall 'have the process of the court (i. e., a subpoena) to compel the attendance of witnesses in his behalf,' as the guaranties of a speedy and public trial, and to appear and defend in person and with counsel, is assured in the same section of the constitution. Other guaranties are also ex- pressed in the same section. A state legislature cannot deprive defendant of any of these rights. . . . " 'It is to the interest of the people, as well as the defendant, that the witnesses of the latter should be made to give their tes- timony in the presence of the jury, for we all know, by daily experience, how much weight is added to or taken from the testi- mony by the personal appearance, bearing, and manner of the witness while under examination; if these add to the weight of his testimony, the defendant ought not to be deprived of such effect, except upon the grounds of necessity; and if they detract therefrom, such effect should be secured to the people in order that the ends of public justice may be subserved. Thus this rule requiring the personal attendance of witnesses, if the same can be had, is founded upon considerations of the wisest policy; and the various statutory provisions whereby the defendant is enabled to examine conditionally on commission a witness who is about to leave the state, or is sick or infirm, as to afford reasonable grounds for apprehending that he will be unable to attend the trial, were not designed to impair the rule or abridge the previous rights of the defendant, but, on the contrary, to enlarge those rights by enabling him to secure testimony of which he would otherwise be deprived, and at the same time preserve the rule in full force, so faras the same could be done in view of the right conferred by the statute.' People v. Dodge, 28 Cal. 44S. See People v. Francis, 38 Cal. 183; People v. Mitchell, 64 Cal. 85. "A defendant has the constitutional right to have the witnesses 270 LAW OF EVIDENCE IN CRIMINAL CASES. against him examined in open court and in his presence. By the- guaranty of due process of law he has a right to be confronted with the witnesses for the prosecution. The correlative right is given him to have the witnesses in his behalf testily in open court. "One further proposition should be stated. . . . The state owes equal and exact justice to those under its authority in all proceedings against them. It can have no higher justifiable right as to witnesses than the defendant. Nor should nor does it ask any higher right in this regard. If anything, it should be con- tent with an inferior right. It holds the lists and appoints the president thereof, in which the contest between the people and the defendant on trial is waged. And the defendant might truly say that equal justice has not been done, when the state can com- pel the attendance of a witness to prove his guilt, and the defend- ant cannot compel the attendance of a witness in like circum- stances to establish his innocence. Justice, as Lord Coke says, should be free, full, and speedy; free, because nothing is more unjust than justice which has to be bought; full, because justice ought not to halt or be maimed; and speedy, because delay is to some extent a denial of justice. See Coke, Inst.pt. 2, p. 55. "It should be recollected that a witness brought from the state prison might clearly show the defendant's freedom from guilt. The difference between the living speaking witness before a jury, and the inanimate lines of a deposition, is recognized by all fa- miliar with courts of justice. As is well said in an old act of Parliament of 9 Edward II., styled Articuli Cleri, in referring to a trial by jury: 'We hold, and shall be able to approve it to be a far better course for matter of fact upon the testimony of wit- nesses, sworn viva voce, than upon the conscience of any one par- ticular man, being guided by paper proofs.' See Coke, Inst. pt. 2, p. Gil. "Especially would this be the case with a convict in prison brought from a state prison. He comes with the stain of convic- tion on his credit. But his appearance and manner, under the ordeal in open court of examination and cross-examination, might assuredly show to court and jury that he is a perfectly reliable witness, and establish beyond question the innocence of the per- son on trial. Should a defendant then be deprived of this- right?" SECURING THE ATTENDANCE OF WITNESSES. 271 § 193. Code Provisions on the Subject. a. Tennessee. — Statutory provisions of the Tennessee Code as contained in §§ 6225-6232, inclusive, are typical of the modern law relative to this subject. The sections referred to provide as follows : " The magistrate before whom an infor- mation is made, may issue subpoenas to any part of the state for witnesses, on behalf either of the defendant or the state. The clerk of the court in which a criminal cause is pending, shall issue subcenas, at any time, to any part of the state, for such witnesses as either the district attorney or the defendant may re- quire. He shall also issue a subpoena, without any application, for witnesses, whose names are marked as such by the district attorney upon the indictment. The clerk of the court should make the subpoena returnable on the day fixed by the law, or by the court, for taking up the criminal business of the term, or the particular case. The subpoena is served in the same way and by the same officers as the subpoena in civil cases. If the witness conceal himself to avoid the service of a subpoena, the officer may make service by leaving a copy posted on the door or other con- spicuous place. Proceedings may be had against defaulting wit- nesses in criminal cases, as prescribed in civil cases. The under- taking of recognizance of witnesses is forfeited and enforced like the undertaking and recognizance of bail." b. Minnesota. — Where the prisoner is admitted to bail, or com- mitted by the magistrate, he shall also bind by recognizance such witnesses against the prisoner as he deems material, to appear and testify at the next court having cognizance of the offense, and in which the prisoner is held to answer. If the magistrate is satisfied that there is a good cause to believe that any such witness will not perform the condition of his recog- nizance unless other security is given, such magistrate may order the witness to enter into a recognizance, with such sureties as may be deemed necessary, for his appearance at court. When any married woman or minor is a material witness, any other person may be allowed to recognize for the appearance of such witness; or the magistrate may, in his discretion, take the recognizance of such married woman or minor in a sum not exceeding fifty dollars. All witnesses required to recognize, either with or without sure ties, shall, if they refuse, be committed to prison by the magistrate 372 LAW OF EVIDENCE IN CRIMINAL CASES. there to remain until they comply with such order, or are dther- wise discharged according to law. It shall not be lawful, except in cases of murder in the first degree, arson, where human life is destroyed, and cruel abuse to children, to commit or imprison any witness who is willing and offers to enter into his or her own recognizance, without sureties, to appear and testify in the case or prosecution in which his or her testimony is required. All persons held as witnesses shall receive such compensation during confinement as the judge of the court in which the case is pending shall direct, not exceeding reg- ular witness fees. 1872, chap. 77, § 1; Minn. Stat. chap. 106, §§ 19-23. c. California. — The process by which the attendance of a wit- ness before a court or magistrate is required is a subpoena: It may be signed and issued by — ■ 1. A magistrate before whom a complaint is laid, for witnesses in the state, either on behalf of the people or of the defendant. 2. The district attorney, for witnesses in the state, in support of the prosecution, or for such other witnesses as the grand jury, upon an investigation pending before them, may direct. 3. The district attorney, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried. 4. The clerk of the court in which an indictment or informa- tion is to be tried; and he must, at any time, upon an application of the defendant, and without charge, issue as many blank sub- pcenaes, subscribed by him as clerk, for witnesses in the state, as the defendant may require. A subpoena may be served by any person, but a peace officer must serve in his county any subpoena delivered to him for service, either on the part of the people or of the defendant, and must, without delay,- make a written return of the service, subscribed by him, stating the time and place of service. The service is made by showing the original to the witness personally, and informing him of its contents. When a person attends before a magistrate, grand jury, or court, as a witness in a criminal case, upon a subpoena or in pursuance of an undertaking, and it appears that he has come from a place outside of the county, or that he is poor and unable to pay the expenses of such attendance, the court, at its discretion, if the SECURING THE ATTENDANCE OF WITNESSES. 273 attendance of the witness be upon a trial, by an order upon its minutes, or, in an}' other ease, the judge, at his discretion, bv a written order, may direct the county auditor to draw his warrant upon the county treasurer in favor of witness for a reasonable sum, to be specified in the order, for the necessary expenses of the witness. No person is obliged to attend as a witness before a court or magistrate out of the county where the witness re-ides, or is served with the subpoena, unless the judge of the court in which the offense is triable, or a justice of the supreme court, or a judge of a superior court, upon an affidavit of the district attorney or prose- cutor, or of the defendant, or his counsel, stating that he believes the evidence of the witness is material, and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness. Disobedience to a subpoena, or a refusal to be sworn or to testi- fy as a witness, may be punished by the court or magistrate as a •contempt. "When a witness lias entered into an undertaking to appear, upon his failure to do so the undertaking is forfeited in the same man- ner as undertakings of bail. "When the testimony of a material witness for the people is required in a criminal action, before a court of record of this state, and such witness is a prisoner in the state prison or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending, or by the judge thereof; but in case the prison or jail is out of the county in which the appli- cation is made, such order shall only be made upon the affidavit of the district attorney, or other person, on behalf of the people, showing that the testimony is material and necessary; and even then the granting of the order shall be in the discretion of the court or judge. The order shall be executed by the sheriff of the county in which it shall be made, whose duty it shall lie to bring the prisoner before the proper court, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken; the expense of executing such order shall be paid by the county in which the order shall he made. Desty, Cal. Penal Code, §§1326 L333. §194. Writ of Habeas Corpus may Issue when. — Theattend- L8 274 LAW OF EVIDENCE IN CRIMINAL CASES. ance of a witness in prison may be secured by a habeas corpus ad tcstifi<;in us that nei- ther his official duty nor public policy would require that he should withhold his evidence of the tact when called upon by the defendant to testify as to the fact, and seek a conviction of the defendant upon evidence which, from the facts within his per- sonal knowledge, he had reason to believe was at least doubtful." Burdick v. Hunt, 43 End. 381. 276 LAW OF EVIDENCE IN CRIMINAL CASES. § 107. General Abrogation of Former Disqualifying Laws. — Express legislation in many states has wholly abrogated former rules of disqualification by reason of crime, and a party may now show the record of conviction not because it renders the witness incompetent but merely for the purpose of impairing the credibility. For authorities sustaining this proposition, see gen- eral statutes of all the states. § 19S. New York and California Rules Relating to the Sub- ject. — "A person heretofore or hereafter convicted of any crime is, notwithstanding, a competent witness, in any cause or proceed- ing, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any proper question relevant to that inquiry; and the party cross- examining is not concluded by the answer to such question." K Y. Penal Code, § 714. "This section abolishes a relic of the old rules disqualifying witnesses, M'hich is contrary to the spirit of modern legislation upon the subject in this state, and has been abolished in England for fully a third of a century. The settled theory in regard to the competency of the witnesses now is, that the court or jury shall have all possible light thrown upon the facts, and judge for itself what credence to give to the evidence offered. The exclu- sion of felons as witnesses has been justified by the argument (1) that their testimony is unreliable and unsafe, and (2) that it is a proper punishment for their crimes. Upon neither theory can it be justified." Per Throop, N. T. Code Commissioner. "The following persons cannot be witnesses: "1. Those who are of unsound mind at the time of their produc- tion for examination. "2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. "3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person." Amend- ment, approved April 16, 18S0; Cal. Code Civ. Proc. § 1880. The California Code of Civil Procedure embodies the best feat- COMPETENCY AND CKEDIBILITY OF WITNESSES. 279 ■ares of modern legislation on this topic of competency. Section 1879 of that act crystalizes the juridical sentiment upon the sub- ject, and it ma}' be quoted as typical of the law as at present understood by the judiciary of the United States. The following is the context of the section referred to: "All persons, with exception, who, having organs of sense, can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceed- ing are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question, as provided- in Cal. Code Civ. Proc. 1879, § 1847." § 199. Theory of Chief Justice Appleton.— The Hon. John Appleton, for many years chief justice of the state of Maine, in the preface to his valuable work on "The Rules of Evidence," states the result of his research and experience to be: "1. All persons without exception, who having any of the organs of sense, can perceive, and perceiving can make known their perceptions to others, should be received and examined as witnesses. 2. That objections may be made to the credit but never to the competen- cy of witnesses. 3. That while the best evidence should always be required, the best existing evidence should not be excluded because it is not the best evidence of which the case in its nature is susceptible." The learned author goes on to say that many of the reforms pointed out in his essay have been partially adopted. Interest and infamy, in very many states, have ceased to be ground for the exclusion of testimony. A limited admission of the testimony of the husband and wife has been allowed in cases where one or the other, is a party. The parties in civil cases, with greater or less restrictions upon their testimony, have been received or compelled to testify in their own cases. In offenses of the lowest grade of criminality the accused in one state (and since then in others) has been admitted as a witness in his own behalf. But incompetency from defect or from a want of religious belief, is still the law in most of the states. The law as to con- fessions and hearsay continues in a chaotic condition. Different courts and the same court on different occasions, employ differing modes of extracting proofs. So far as changes have been made, 280 LAW OF EVIDENCE IN CRIMINAL CASES. their practical working in the administration of the law has been such as to make it a matter of astonishment how courts could have ever hoped to administer justice, when the evidence now received was excluded. As to whether a record of conviction of a witness for a felony, where it does not disqualify, is evidence in a civil action for the purpose of impeachment, qucere. In the case of People v. Noyes, tried at the Livingston circuit in November, L876, it was held, that a person convicted of felony in the state of Michigan, was nut thereby rendered incompetent to testify, but that the fact of the conviction went only to his credibility. To the same effect is the case of the Com. v. Green, 17 Mass. 515, where the question received great consideration,. and an able opinion was written by Parker, Ch. J., which was con- curred in by the whole court. It was decided in the case of Carpenter v. Nixon, 5 Hill, 260,, that the record of the conviction of a witness of petit larceny, was admissible fur the purpose of affecting the credit of such wit- ness, and that the refusal to receive it for that purpose was error. In lYt wcorrib v. Griswold, 24: X. Y. 29S, the competency of such evidence for that purpose is admitted, but it is held that the fact of the conviction cannot be proved by parol, even by the witness himself upon cross-examination, but must be established by the general rule laid down in all the elementary works upon evidence, that particular facts cannot be proved to effect the credit of a witness, but that the examination must be confined to his general reputation. The entire discussi< »n is of trifling importance in view of the very general abrogation of the old exclusionary rules which denied to convicts the privilege of a witness. This disqualification has been removed in all of the New England states, in California, Colorado, .Delaware. Georgia, Illinois. Indiana, Iowa, Kansas. Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina. Vermont, Virginia, Washington and Wisconsin. A lingering sur- vival of the rule is found in some of the southern states, notably. Florida, Mississippi and South Carolina. . 200. Exceptions to the General Rule. a. Husband and Wife. — There are particular relations in which it is tiie policy of the law to encourage confidence, and to preserve COMPETENCY AND CREDIBILITY OF WITNESSES. 281 it inviolate; therefore a person cannot be examined as a witness in the following cases: — A husband shall not be examined for or against his wife with- out her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage afterwards, with- out the consent of the other, be examined as to any communication made by one to the other during the marriage. But the excep- tion does not apply to a civil action, suit, or proceeding, by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other; An attorney shall not. without the consent of his client, be examined as to any communication made by the client to him. or his advice given thereon, in the course of professional employ- ment; A priest or clergyman shall not. without the consent of the per- son making the confession, be examined as to any confession made to him in his professional character, in the course of discipline, enjoined by the church to which he belongs; A public officer shall not be examined as to communications made t Iowa, 425. .298 LAW OF EVIDENCE IN CELMLNAL CASES. § 206. Restrictions upon the Privilege. — The privilege of refusing to answer is restricted to questions, answering which may tend to criminate the witness, or expose him to punishment. Hall v. State, 40 Ala. 698. It is an established and universally .accepted maxim of the common law, that a witness shall not be compelled to answer any question that tends to criminate him, or to expose him to a criminal prosecution, or to a penalty; which finds expression in the constitutional guaranty, that no person shall be compelled to give evidence against himself. The right •of exemption extends, not only to answers which may criminate, but also to such as may tend to criminate. On the trial of a female, charged with being a common prosti- tute, and having no honest employment, whereby to maintain her- self, the petitioner was called by the prosecution and sworn as a witness. Having testified that he was a witness before the grand jury when the indictment was found, the question was proposed to him, whether or not he had had sexual intercourse with the accused within six months prior to the time he was before the grand jury. The court instructed the witness that it was his duty, and directed him, to answer the question. The witness refused to answer, whereupon the court adjudged him guilty of a contempt, and ordered his imprisonment. It was the province of the court to determine, in the first instance, whether a direct answer to the question proposed would furnish criminating evidence against the witness. The rule is founded on the duty of the court to take care that the exercise of the privilege shall not extend, by mistake or error of the witness, or on simulated pretense, to the suppression of evidence, which is necessary to the due administration of the law, and in giving which there can be no real and appreciable danger of crimination, or exposure to prosecution, or to any kind of punishment. Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754. It is also of the highest importance, that the witness shall be protected in the proper and rightful exercise of his privilege, which has for its object the security of life and liberty. The court should not require the witness to fully explain the manner in which his answer may tend to criminate him, as the purpose of the privilege may be thereby defeated; nor should he be required to answer, when he claims his privilege, unless from the nature of the answer, and the circumstances of the case, it is evident to the court that his answer can not have any tendency to expose PRIVILEGE OF WITNESSES. 299 ■him to a criminal charge or prosecution, or to a penalty. If the prosecution for the offense is barred by the statute of limitations, the reason of the privilege ceases, and the witness should be com- pelled to answer. See cases cited in § 205. Professional communications are not privileged when such communications are for an unlawful purpose, having for their object the commission of crime. They then partake of the nature of a conspiracy, or attempted conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so. The interests of public justice require that no such shield from merited expos- ure shall be interposed to protect a person who takes counsel how he can safely commit a crime. The relation of attorney and cli- ent cannot exist for the purpose of counsel in concocting crimes. The privilege does not exist in such cases. 1 Gilbert, Ev. 277; GreenougJi v. Gf the court, certain questions propounded to him by the grand jury in an examination concerning the disposition of certain mon- eys taken from the state treasury, on the ground that his answer would disgrace him and would tend to subject him to a prosecu- tion for felony. The supreme court of California, on habeas cor- pus, considered the construction and constitutionality of the 5th section of an act passed April 16, 1855, which provided, that '"the testimony given by such witness shall in no instance be used against himself in any criminal prosecution." The court held that the provision of the constitution was intended to protect the witness from being compelled to testify against himself in regard to a criminal offense; that he could not be a witness against him- self unless his testimony could be used against him in his own case; and that the statute gave the witness that protection which was contemplated by the constitution, and therefore he was bound to answer. The constitution of the state of New York declares, that no person shall "be compelled, in any criminal case, to be a witness against himself." In the case of People v. Kelly, 24 X. Y. 74. one Hackley, as a witness before the grand jury on a complaint against certain aldermen for feloniously receiving a gift of money under an agreement that their votes should be influenced thereby in a matter then pending before them, in answer to a question put to him as to what he had done with certain money which he had received, said that any answer which he could give to the question would disgrace him, and would have a tendency to accuse him of a crime and he demurred to the question. Having been ordered by the court of general sessions of the peace to answer it. in' .-till refused and was adjudged guilty of contempt and put in prison. On a writ of habeas corpus, he was remanded into cus tody by the supreme court, and he appealed to the court of appeals. ■3Ui LAW OF EVIDENCE IN CRIMINAL CASES. That court, speaking by Judge Denio, said: "The mandate that an accused person should not be compelled to give evidence against himself, would fail to secure the whole object intended if a prosecutor might call an accomplice or confederate in a crim- inal offense, and afterwards use the evidence he might give to procure a conviction, on the trial of an indictment against him- If obliged to testify, on the trial of the co-offender, to matters which would show his own complicity, it might be said, upon a very liberal construction of the language, that he was compelled to give evidence against himself — that is, to give evidence which might be used in a criminal case against himself. ... It is, of course, competent for the legislature to change any doctrine of the common law, but I think they could not compel a witness to testify, on the trial of another person, to facts which would prove himself guilty of a crime, without indemnifying him against the consequences, because, by a legal construction, the constitution would be found to forbid it." But the court went on to say: "If a man cannot give evidence upon the trial of another person with- out disclosing circumstances which will make his own guilt appar- ent, or at least capable of proof, though his account of the trans- actions should never be used as evidence, it is the misfortune of his condition, and not any want of humanity in the law. If a witness objects to a question on the ground that an answer would criminate himself, he must allege, in substance, that his answer, if repeated as his admission, on his own trial, would tend to prove iiim guilty of a criminal offense. If the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no author- ity which holds or intimates that the witness is privileged. It is not within any reasonable construction of the language of the con- stitutional provision. The term, 'criminal case,' used in the clause must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offense. But it must be a prosecution against him; for what is forbidden is that he should be compelled to be a witness against himself. Now if he be prosecuted criminally, touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said that in such criminal case he has been made a witness against him- PRIVILEGE OF WITNESSES. 305 self, by force of any compulsion used toward him to procure, in the other case, testimony which cannot possibly be used in the criminal case against himself." In Kim ry's Case, 107 Mass. 172, Emery was summoned as a witness before the joint special committee of the general .court appointed "to inquire if the state police is guilty of bribery and corruption." Interrogatories were propounded to him by the committee, which he declined to answer. On a report of the facts to the senate, it ordered his arrest for contempt. He was brought before the senate and asked the following question : "Are you ready and willing to answer . . . the following questions, namely: First, "Whether, since the appointment of the state con- stabulary force, you have ever been prosecuted for the sale or keeping for sale of intoxicating liquors. Second. Have you ever paid any money to any state constable, and do you know of any ■corrupt practice or improper conduct of the state police? If so, state fully what sums, and to whom you have thus paid money, and also what you know of such corrupt practice and improper conduct." He answered in writing as follows : "Intending no disrespect to the honorable senate, I answer, under advice of counsel, that I am ready and willing to answer the first question, but I decline to answer the second question, upon the grounds, First, that the answer thereto will accuse me of an indictable offense; Second, that the answer thereto will furnish evidence .against me by which I can be convicted of such an offense." The senate thereupon committed him to the custody of the sergeant at Arms, to be confined to jail for twenty-five days, or until the fur- ther order of the senate, unless he should sooner answer the ques- tions. He was imprisoned accordingly, and the case was brought before Judge Wells of the supreme judicial court on a writ of habeas corpus, and was fully argued. It was held under advise- ment and for conference with the other judges; and in the opin- ion subsequently delivered hj Judge Wells it is stated, that that opinion had the approval and unanimous concurrence of all the members of the court. It is said in the opinion: "It is appar- ent that an affirmative answer to the question put to him might tend to show that he had been guilty of an offense." In regard to the clause above quoted from the bill of rights, the opinion says: "By the narrowest construction, this prohibition extends to all investigations of an inquisitorial nature, instituted 20 306 LAW OF EVIDENCE IN CRIMINAL CASES. for the purpose of discovering crime, or the perpetrators of crime,, by putting suspected parties upon their examination in respect thereto, in any manner; although not in the course of any pending prosecution. But it is not even thus limited. The principle applies equally to any compulsory disclosure of his guilt by the- offender himself, whether sought directly as the object of the in- quiry, or indirectly and incidentally for the purpose of establish- ing facts involved in an issue between other parties. If the disclosure thus made would be capable of being used against himself as a confession of crime, or an admission of facts tending to prove the commission of an offense by himself, in any prose- cution then pending, or that might be brought against him there- for, such disclosure would be an accusation of himself, within the- meaning of the constitutional provision. In the absence of regu- ' lation by statute, the protection against such self-accusation is secured by according to the guilty person, when called upon to answer as witness or otherwise, the privilege of then avowing the' liability and claiming the exemption; instead of compelling him to answer and then excluding his admissions so obtained, when afterwards offered in evidence against him. This branch of the constitutional exemption corresponds with the common law maxim, nemo tenetur seipsum accusare, the interpretation and application of which has always been in accordance with what has been just stated. Broom, Legal Maxims (5th ed.) 90S; "Wingate,. Maxims, 486; Boscoe, Crim. Ev. (2d Am. ed.) 159; Stark. Ev_ (8th Am. ed.) 41, 201 and notes; 1 Greenl. Ev. § 151 and notes." The opinion then cites the case of People v. Kelly, 21 X. Y. 71, as holding that the clause in the constitution of New York of ls40 protected a witness from being compelled to answer to matters which might tend to criminate himself, when called to testify against another party; and also People Y.Mather, 1 AVend. 22'.». as declaring that the exemption in the constitution of New York extended to the disclosure of any fact which might consti- tute an essential link in a chain of evidence by which guilt might he established, although that fact alone would not indicate any crime. In Cullen v. Com. 21 Graft. 621, in 1873, Cullen, when asked before a grand jury to state what he knew of a certain duel, de- clined to answer, because the answer would tend to criminate him. The hustings court ordered him to answ T er, and, on his still PRIVILEGE OF WITNESSES. 307 refusing to do so, fined him and committed him to jail. The case was brought before the court of appeals of Virginia. The bill of rights of the constitution of Virginia of 1870, in § 10 of article 1, provided that no man can ''be compelled to give evidence against himself." That provision had existed in the bill of rights of Virginia as far back as June 12, 1776, and of it the court of appeals said it was the purpose of its trainers a to declare, as part of the organic law, that no man should anywhere, before any tri- bunal, in any proceeding, be compelled to give evidence tending to criminate himself, either in that or any other proceeding;" and that the provision could not be confined "only to cases in which a man is called on to give evidence himself in a prosecution pend- ing against him." The opinion then cited People v. Kelly, 24 N". Y. 71, and Emery's Case,107 Mass. 172, as sustaining its view, and proceeded to consider the effect of an act of Virginia, passed October 31, 1870, in regard to dueling, which provided as follows : "Every person who may have been the bearer of such challenge or accept- ance, or otherwise engaged or concerned in any duel, may be re- quired, in any prosecution against any person but himself, for having fought, or aided, or abetted in such duel, to testify as a witness in such prosecution; but any statement made by such person, as such witness, shall not be used against him in any prosecution against himself." The court held that the effect of the statute was to invade the constitutional right of the citizen, and to deprive the witness of his constitutional right to refuse to give evidence tending to criminate himself, without indemnity, and that the act was, therefore, to that extent, unconstitutional and void. It was held further that, before the constitutional privilege could be taken away by the legislature, there must be absolute indemnity provided; that nothing short of complete amnesty to the witness, an absolute wiping out of the offense as to him, so that he could no longer be prosecuted for it. would furnish that indemnity; that the statute in question did uot fur- nish it, but only provided that the statement made by the witness should not be used against him in a prosecution against himself; that, without using one word of that statement, the attorney for the commonwealth might in many cases, and in a case like that in hand, inevitably would, be led by the testimony of the witness to means and sources of information which might result in crim- 30S LAW OF EVIDENCE IN CRIMINAL CASES. mating the witness himself; and that this would he to deprive the witness of his privilege, without indemnity. The judgment of the hustings court was reversed. Article 15 of the bill of rights in the constitution of New Hamp- shire of 1792 declared that no subject shall "be compelled to accuse or furnish evidence against himself." In State v. Newell, 58 N. H. 314, in 1878, Newell refused to testify before a grand jury as to whether, as a clerk for one Goodwin, he had sold spirituous liquors, and whether Goodwin sold them or kept them for sale. He declined to answer on the ground that his evidence might tend to criminate himself. A statute of the state (Gen. Stat, chap. 99, § 20) provided as follows : "No clerk, servant, or agent of am- person accused of a violation of this chapter, shall be ex- cused from testifying against his principal, for the reason that he may thereby criminate himself; but no testimony so given by him shall, in any prosecution, be used as evidence, either directly or indirectly against him, nor shall he be thereafter prosecuted for any offense so disclosed by him." A motion having been made before the supreme court of New Hampshire, for an attachment against him for contempt for refusing to testify, that court, after quoting the provision in the bill of rights, said : "The common law maxim (thus affirmed by the bill of rights) that no one shall be compelled to testify to his own criminality, has been understood to mean, not only that the subject shall not be compelled to dis- close his guilt upon a trial of a criminal proceeding against him- self, but also that he shall not be required to disclose, on the trial of issues between others, facts that can be used against him as admissions tending to prove his guilt of any crime or offense of which he may then or afterwards be charged, or the sources from which, or the means by which, evidence of its commission, or of his connection with it may be obtained. Emery's Case, 107 Mass. 172. 181." In regard to the statute, the court said that the legislature, having undertaken to obtain the testimony of the witness without depriving him of his constitutional privilege of protection, must relieve him from all liabilities on account of the matters which he is compelled to disclose; that he was to be secured against all lia- bility to future prosecution as effectually as if he were wholly innocent; that this would not be accomplished if he were left lia- ble U> prosecution criminally for any matter in respect to which PRIVILEGE OF WITNESSES. 309 he might be required to testify; that the statute of New Hamp- shire went further than the statute of Massachusetts considered in Emery's case, because it provided that the witness should not b*e thereafter prosecuted for any offense so disclosed by him; that the witness had, under the statute, all the protection which the com- mon law right, adopted by the bill of rights in its common law sense, gave him; that if he should be prosecuted, a plea that he had disclosed the same offense on a lawful accusation against his principal would be a perfect answer in bar or abatement of the prosecution against himself; and that, unless he should testify, the motion for the attachment must be granted. In 1880, in LaFontaine v. Southern Underwriters Asso. 83 N. C. 132, the constitution of North Carolina of 1876 had provided^ in the declaration of lights (art. 1, § 11) that, "in all criminal prosecutions, every man has the right . . . to . . . not be compelled to give evidence against himself." One Blacknall, as a witness in a hearing before a referee in a civil suit, had refused to answer a question as to his possession of certain books, on the ground that indictments were pending against him, con- nected with the management of the affairs of the association own- ing the books, and that his answer to the question might tend to criminate him. The case was heard before an inferior state court, which ruled that he must answer the question. On appeal to the supreme court of North Carolina, it is held that the fair interpre- tation of the constitutional provision was to secure a person, who was or might be, accused of crime, from making any compulsory revelations which might be used in evidence against him on his trial for the offense, that, as the witness was protected from the consequences of the discovery, and the facts elicited could be given in evidence in no criminal prosecution to which they were pertinent, the plaintiff in the case was entitled to all the informa- tion which the witness possessed, whether it did or did not impli- cate the witness in a fraudulent transaction, that the inquiry could not be evaded upon any ground of the self-criminating answer which might follow, although the answers of the witness could not be used against him in any criminal proceeding what, ever; and that his constitutional right not to "be <• pelled to give evidence against himself" would be maintained intact and full. In Temple v. Com. 75 Va. 892, in 1881, the same § 10 of 310 LAW OF EVIDENCE IN CKIMINAL CASES. article 1 of the bill of rights of the constitution of Virginia of 1870, that was considered in Cullen v. Com. 24 Gratt. 624, was in force. An indictment had been found by a grand jury, on the evidence of Temple, against one Berry for setting up a lottery. On the trial of Berry before the petit jury, Temple refused to tes- tify, on the ground that by so doing he would criminate himself; and for such refusal he was fined and imprisoned for contempt by the hustings court. The case was taken to -the court of appeals by writ of error. The court cited with approval Cullen v. Com. siqyra, and held that it was applicable. It appeared that in the hustings court, the attorney for the commonwealth was asked whether any prosecution was pending against Temple in that court or whether it was the intention of such attorney to institute a pro- ceeding against Temple for being concerned in a lottery, to both of which questions he replied in the negative. The court of appeals held that Temple had a right to stand upon his constitutional privilege, and not to trust to the chances of a further prosecution; that the court could offer him no indemnity that he would not be further prosecuted, nor could the attorney for the commonwealth; that Temple had a right to remain silent whenever any question was asked him, the answer to which might tend to criminate himself; that the great weight of authority in the United States was in favor of the rule that, when a witness on oath declared his belief that his answer would tend to criminate himself, the court could not compel him to answer, unless it was perfectly clear, from a careful consideration of all the circum- stances in the case, that the witness was mistaken, and that the answer could not possibly have such a tendency. In Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, in 1886, the court, in considering the 4th and 5th amendments to the Constitution of the United States, which declares that no person "shall be compelled in any criminal case to be a witness against himself," and the 4th Amendment, which declares that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, said, speaking by Mr. Justice Bradley, p. 631 [751]: "And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to con- vict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts PKIVILEGE OF WITNESSES. 311 of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom." It was further said, p. 633 [752]: "We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the 'unreasonable searches and seizures' condemned in the 4th Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the 5th Amendment, and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the 5th Amendment, throws light on the question as to what is an 'unrea- sonable search and seizure,' within the meaning of the 4th Amend- ment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and mean- ing of those terms. . . . As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the 4th Amendment of the Constitution, and of that portion of the 5th Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, with- in the meaning of the 5th Amendment to the constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the 4th Amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it con- tains their substance and essence, and effects their substantial pur- pose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional prac- tices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional pro- visions for the security of person and property should be liberally construed. A close and literal construction deprives them of half 312 LAW OF EVIDENCE IN CRIMINAL CASES. their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis." In that case, the fifth section of the Act of June 22, 1874 (18 Stat, at L. 187) which authorized the court in revenue cases to- require the defendant or claimant to produce his private papers- in court, or else the allegations of the government's attorney would be taken as confessed, was held to be unconstitutional and void, as applied to a suit for a penalty or to establish a forfeiture of the goods of the party, because it was repugnant to the 4th and 5th amendments to the Constitution; and it was held that a pro- ceeding to forfeit the goods was a criminal case within the mean- ing of the 5th Amendment. Mr. Justice Miller, in the concurring opinion of himself and Chief Justice Waite in the case, agreed that it was a criminal one, within the meaning of the 5th Amend- ment, and that the effect of the Act of Congress was to compel the party on whom the order of the court was served, to be a. witness against himself. In People v. Sharp, 107 K T. 427, in 1887, the court of appeals of New York had under consideration the provision of Article 1, § G, of the Constitution of New York of 1840, that no person shall "be compelled, in any criminal case, to be a witness against himself," and the provision of section 79 of the penal code of New York, title 8, chapter 1, in regard to bribery and corruption, which was in these words : "A person offending against any provision of any foregoing section of this code relat- ing to bribery, is a competent witness against another person SO' offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as- any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment of prosecution." Sharp and others were indicted for bribing a member of the common council, and Sharp was tried separately. It was proved that he had been examined as a wit- PRIVILEGE OF WITNESSES. 313- ness before a committee of the state senate, and there gave testi- mony of his complicity in the crime; and that testimony was- offered in evidence by the prosecution. The testimony had been given under the compulsion of a subpoena, and was admitted at the trial, against the objection that the disclosures before the sen- ate committee were privileged. The court of appeals held that § 79 of the penal code made the constitutional privilege inappli- cable, because it indemnified or protected the party against the consequences of his previous testimony. The court cited with approval the case pf People v. Kelly, 24 N. Y. 74. In Bedgood v. State, 115 Ind. 275, in 18S8, the supreme court of Indiana had under consideration the provision of art. 1, § 14 of the bill of rights of the constitution of Indiana of 1851, which provides that "no person in any criminal prosecution shall be compelled to testify against himself," and the provisions of § 1800 of the revised statutes of Indiana of 1881, to the effect that testimony given by a witness should not be used in any prosecution against him. On a trial before a petit jury in a. criminal case against others, a woman had refused to answer a question, on the ground that the answer might criminate her. The supreme court held that, as the statute prohibited her testi- mony from being used against her, it completely protected her, and the judgment was reversed because the trial court had erro- neously refused to require her to answer the question. This review of the cases shows that in the constitution of Geor- gia, California, and New York, the provision is identically or substantially that of the Constitution of the United States, namely, that no person shall "be compelled in any criminal case to be a witness against himself;" while in the constitution of Pennsylva- nia, Arkansas, Indiana, Massachusetts, Virginia, New Hampshire, and North Carolina it is different in language, and to the effect that "no man can be compelled to give evidence against himself;" or that, in prosecutions, the accused "shall not be compelled to give evidence against himself;" or that "no person in any criminal prosecution shall be compelled to testify against himself," or that no person shall be "compelled to accuse or furnish evidence against himself;" or that no man can "be compelled to give evi- denceagainst himself;" or that, in all criminal prosecutions, "every man has the right to not be compelled to give evidence against himself." ■314 LAW OF EVIDENCE IN CRIMINAL CASES. Under the constitutions of Arkansas, Georgia, California, Indi- ana, New York, New Hampshire, and North Carolina it was held that a given statutory provision made it lawful to compel a wit- ness to testify; while in Massachusetts and Virginia it was held that the statutory provisions were inadequate in view of the con- stitutional provision. In New Hampshire, and in New York under the penal code, it was held that the statutory provisions were sufficient to supply the place of the constitutional provision, because, by statute, the witness was entirely relieved from prose- cution. But, as the manifest purpose of the constitutional provisions, "both of the states and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same inter- pretation; and that where the constitution, as in the cases of Mas- sachusetts and New Hampshire, declares that the subject shall not be "compelled to accuse or furnish evidence against himself;" ■such a provision should not have a different interpretation from that which belongs to constitutions like those of the United States and of New York, which declare that no person shall be "com- pelled in any criminal case to be a witness against himself." §208. The Privilege of Attorneys. — The rule of privileged •communications as applied to the relation of attorney and client in civil matters, is substantially the same as in the administration of criminal justice. Whether the protection can be removed without the client's consent in cases in which the interest of criminal justice requires the production of the evidence may ad- mit of some doubt. Hageman, Privileged Communications, § 252, citing Taylor, Ev. § 029; Reg. v. Tykiey, 18 L. J. M. C. 37; Reg. v. Tufts, 1 Den. C. C. 319. A paragraph from Judge Cooley is pertinent in this connec- tion : " In guaranteeing to parties accused of crime the right to the aid of counsel, the Constitution secures it with all its accustomed in- cidents. Among these is that shield of protection which is thrown around the confidence the relation of counsel and client requires, and which does not permit the disclosure by the former, even in PRIVILEGE OF WITNESSES. 315 "the courts of justice, of communications which may have been made to him by the latter, with a view to pending or anticipated litigation. This is the client's privilege; the counsel cannot waive it; and the court would not permit the disclosure even if the cli- ent were not present to take the objection." Cooley, Const. Lim. <6th ed.) 407. In the case of Tichhorne v. Lushington, Shorthand Notes, p. 5211, out of which the prosecution of Orton for perjury arose, Bovill, Ch. 'an v. Mullen, 78 111. 342; State v. Benner, 64 Me. 267); and questions, though leading in form, are always competent, when merely intended to direct the attention of the witness to the sub- ject-matter of his testimony. Lowe v. Lowe, 40 Iowa, 220. Where the question asked is of doubtful propriety and yet it is apparent that under a particular view of the case it may be rele- vant the opposing counsel or the court may demand a statement of what it is proposed to prove and in what way its relevancy to the issue may be shown. Wood v. State, 92 Ind. 269. THE EXAMINATION OF WITNESSES. 321 No witness can be heard except upon oath or affirmation; and upon a trial he can be heard only in the presence and subject to the examination of all the parties, if they so elect. § 213. Witness Must Testify to Facts Within his Knowl- edge. — No principle is better settled than that the belief, thoughts or operation of the mind of a witness are not admissible evidence, .as a general rule. He must testify only as to facts within his knowledge, and cannot give evidence outside of this, unless a case is made out where his opinion may be asked. Abbott v. People, st; \. Y. 460; Gutchess v. Outchess, 66 Barb. 483; Rich v. Jak- way, 18 Barb. 357; Morehouse v. Mathews, 2 X. Y. 514; Gibson v. Williams, 4 Wend. 320. Generally oral evidence must in all cases whatever, be direct ; that is to say — If it refers to a fact alleged to have been seen, it must be the evidence of a witness who says he saw it; If it refers to a fact alleged to have been heard, it must be the evidence of a witness who says he heard it; If it refers to a fact alleged to have been perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion, or to the grounds on which that opin- ion is held, it must be the evidence of the person who holds that opinion on those grounds. Stephen, Dig. art. 62. See Teerpenning v. Corn Exchange Ins. Co. 43 N. Y. 279. Trull v. True, 33 Me. •367. So oral evidence is admissible if the witness swears to a certain fact as true to the il best of his knowledge and belief" or to his "best impression" McLean, v. Clark, 47 Ga. 24. As the accuracy of his "impression" is for the determination of the jury. Crowell v. Western Reserve Bank, 3 Ohio St. 406; Duvall v. Darby, 38 Pa. 56. It should be added however in this connec- tion, in regard to this subject of impression, that where they are vague and illusive- — not sufficiently defined in or impressed upon the memory to leave a substantial reason as a basis for the testi- mony, the evidence should be rejected. Humphries v. Parker, 52 Me. 502; State v. Flanders, 38 K II. 324; Ives v. Hamlin, 5 Cush. 534; People v. Wreden, 59 Cal. 392; Wiggins v. Holley, 11 Ind. 2. § 214. Examination in Chief— Views ot Prominent Text Writers. — After a witness has been regularly sworn, the party 21 [V2'2 LAW OF EVIDENCE IN CRIMINAL CASKS. who lias called him proceeds to examine him in chief; respecting- which examination the most important rule is, that the leading 1 1 in-! imis must not be put to the witness; that is, questions which, being material to any of the points of the issue, plainly suggests- to him the answer he is expected to make. But this objection is not allowed to be applied^if the question is merely introductory and one which, if answered by "yes" or "no," would not be con- clusive on any of the points of the issue; for it is necessary to a certain extent to lead the mind of the witness to the subject of the inquiry. If a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the court may deem it right to relax the rule against leading questions, and allow the exami- nation in chief to assume something of the form of a cross-exam- ination. It is entirely in the discretion of the judge to determine how far he will allow the examination in chief to be by leading questions. Russell, Crimes, chap. 5, p. 913, 915, § 2. t ^ 215. Object of the Examination in Chief. — The object of the examination in chief is to elicit from the witness all the material facts which tend to prove the case of the party who calls the witness. In such a case, as the presumption and the ordinary tact are that the witness, having been chosen by the party who call- him, is favorable to his cause, and therefore likely to over- state or misstate the circumstances which conduce to establish the- party's case, it is a principal rule that — On an examination in chief, a witness must not be asked lead- ing questions. The simple meaning of this rule is, that a party who calls a witness to prove a case must not suggest answers to the witness,. nor frame his question in such a manner that the witness by an- swering merely "yes" or "no," shall give the reply and the evi- dence which the party wishes to elicit. A question is said to be lending when the words which the witness is expected and re- quired to utter, are put into his mouth, or when it suggests to the witness tin- answer which the examiner wishesor expects to have; and such a question is inadmissible, because the object of calling witnesses and examining them viva voce in open court is, that the judge and jury may hear them tell their own unvarnished tale of the circumstances which they are called to attest. Such a course would strike radically at the credibility of all oral evidence, and. THE EXAMINATION OF WITNESSES. 323 therefore it is a sound and established rule, that, on the examina- tion in chief, leading questions must not be asked. Heard, Crim. Law, p. 209. It is matter of discretion with the court before whom a trial is had, whether they will or will not compel counsel to disclose what they expect to prove by a witness, before he is examined in. chief. Where the case is one of delicacy and importance, and the evidence is nicely balanced, and the scale is liable to be affect- ed by slight circumstances, courts are vigilant in preventing any extraneous or irrelevant matter from being brought before the jury. In such cases counsel will be required to state the substance of what they expect to prove, in order that, if irrelevant or im- proper, the evidence may not be given; when the lines of the case are more broadly marked, less caution is necessary a- the rights of the parties may be sufficiently protected by the court deciding upon the competency or relevancy of the evidence as it falls from the witness. People v. White, 14 Wend. 111. § 216. Rule as to Leading Questions. — Though the rule is, that leading questions may not be put in examination in chief, there are certain exceptions, some allowed as of right, others for convenience sake. (a) For the purpose of identifying persons or things which have already been described, the attention of the witness may be directly pointed to them. (b) When a witness is called to contract another, who has sworn to a certain fact, he may be asked in direct terms whether the fact, ever took place. (c) When the witness is, in the opinion of the judge, hostile to the party calling him. (d) When the witness is unable to answer general questions from defective memory, or the complicated nature of the matter as to which he is interrogated. Leading questions are also not objected to — (a) When merely introductory, so as to save time. (b) When the particular matter is not disputed. Thus, where a witness, having deposed to a fact, has not been cross-examined on it, questions may be put which assume that fact. Harris, Crim. Law, p. 355. The first general rule is, that a party to whom a witness is called, cannot ask him leading questions, that is, questions sug- 324 LAW OF EVIDENCE IN CRIMINAL CASES. gesting the answer desired. 1 Phil. Ev. Cowen & Hill's Notes, 268; Chambers v. People, 5 111. 355; Williams v. Jarrot, 6 111. L30. This rule proceeds upon the supposition that the witness is favorable to the party calling him. Where such is not the fact, and the witness appears to be hostile, the rule is relaxed, and a more searching mode of examination is permitted, partaking of the character of a cross-examination. Starks v. People, 5 Denio, lin',; Williams v. Jarrot, su/pr a. Questions of introductory mat- ter, leading and directing the mind and attention of the witness to tin' main inquiry, and which will not be conclusive upon any of the points in the case, are not liable to the objection of being leading. 1 Phil. & Am. Ev. 8SS; Williams v. Jarrot, supra. In some cases, however, leading questions are permitted on a direct examination. Thus, where an omission in the testimony of the witness is caused by a want of recollection, which a sugges- tion may assist, such suggestion is permitted to be made. As, where a witness called to prove a partnership, is not able at the momi at to specify the several names of the partners, a number of names, containing the names of the partners among others, may be suggested to him for the assistance of his memory. Stark. 1ST. P. lot i; Haines, Treatise, p. 672. A recent celebrated criminal case reported from California dis- closes the latitude in which leading questions may be propounded by the trial court, The conviction was for murder, and wife murder at that, and was based upon circumstantial evidence and the opinion of experts. After the accused had been convicted and sentenced to death, the brother of the deceased wife con- fessed the crime, exculpated the prisoner and then committed sui- cide. It would seem, that, during the progress of the trial, the presiding judge became very much dissatisfied with the character of the expert testimony; and the appellate court could see no valid objection to such a proceeding, except that, in form, some of the questions asked were leading and suggestive. Patterson, Justice, says: "If they assumed facts not proved, the attention of the court ought to have been directed to this objection. While it was probably not the duty of the defendant to urge his objec- to questions asked by The court with the formality and per- ce required when counsel for the prosecution were examining the witness, yet the attention of the court ought to have been me manner to the objectionable matters. It is in the THE EXAMINATION OF WITNESSES. 325 discretion of the court to allow counsel to ask leading questions and there is no reason why the court may not, of its own motion, ask questions in that form." People v. Bowers, 79 Cal. 415. Leading questions may be put to an unwilling witness, but there is some conflict of authority as to whether if a witness unexpect- edly gives testimony adverse to the party calling him, such party may ask him if he has not on another particular occasion made a contrary statement. We think the cases which hold that the wit- ness may be thus cross-examined by the party who called him are supported by the better reasons. /Schuster v. State, 80 Wis. 107. As late as 1892 the New York court of appeals restated its position in reference to leading questions and unanimously held, .that the entire subject relating thereto in criminal prosecutions was within the discretion of the trial court. People v. Sherman, 133 N. Y. 319. The matter of leading questions at any stage of the examina- tion, is so far a matter of discretion that no legal exception will lie to any ruling thereupon. 2 Phil. Ev. 892, et seep- Sheldon v. Wood, 2Bosw. 267. The English rule on cross-examination is that, when a witness has been introduced, sworn and examined as to any material point in the case, the other party may cross-examine him as to the whole case, including any new matter of defense; but the extent to which he may be allowed to press the witness with leading ques- tions will depend upon the circumstances of the case, the demeanor of the witness, his apparent bias and other considerations, and must, to a great extent, be left to the sound discretion of the trial judge. This rule is adopted by several of the American state courts. 1 Thomp. Trials, § 430, citing 2 Phil. Ev. 896-911; Mor- gan v. Brydges, 2 Stark. 314; Rex v. Brooke, 2 Stark. 472; Web- ster v. Zee, 5 Mass. 335; Merrill v. Berkshire, 11 Pick. 269; Moody v. Powell, 17 Pick. 490, 28 Am. Dec. 317; Blackington v. Johnson, 126 Mass. 21; Beal v. Nichols, 2 Gray, 262; Varick v. Jackson, 2 Wend. 166, 19 Am. Dec. 571; Fulton v. Stafford^ 2 Wend. 483; Linsley v. Lovely, 26 Vt. 123; Legg v. Drake, L Ohio St. 286; Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; St. Bonis & I. M. E. Co. v. Silver, 56 Mo. 265; State v. Sayres, 58 Mo. 585; Knapp v. Schneider, 24 Wis. 70; Durnford v. Clark, 1 Mart. O. S. 2<>2; Davidson v. DeZallande, 12 La. Ann. 826; Nicholson v. Desobry, 14 La. Ann. 81; Kmg v. At- 32G LAW OF EVIDENCE IN CRIMINAL CASES. bins, 33 La. Ann. 1057; Kibler v. Mcllwaine, 16 S. C. 551; Clin- ton v. McK mie, 5 Strobh. L. 36; Kelly v. Brooks, 25 Ala. 523; Fralick \. Presley, 20 Ala. 457, 65 Am. Dec. 413. § 217. No Material Fact in Issue can be Assumed on Exam- ination. — It is no objection to the form of a question put to a witness that it assumes facts which are not disputed. The rules of law which govern in the examination of witnesses as effectually prohibit counsel from assuming, in their questions, any facts which are material to the point of inquiry, but which are to be ultimately found by the jury, as other rules of law forbid the pre- siding judge from assuming such facts in his instructions to the jury. In the former case the reason of such rules does not rest merely upon the consideration that such assumption of facts might mislead the witnesses, but upon the liability of such assumption or assertion of facts by counsel becoming a substitute in the minds of the jurors for evidence, and thus calculated to mislead them. In the latter ease the reason is the same, with the further reason that the assumption by the court, in its instructions to the jury, of material facts to be found by them, is regarded as an invasion by the court of the peculiar province of the jury. The rules in the former case are so rigidly maintained that they will not per- mit counsel, even upon cross-examination and when leading ques- tions may be put, to assume any material facts in issue and which are to be found by the jury, or to assume that particular answers have been given contrary to the fact. Uaish v. Munday, 12 111. A pp. 539. ' § 218. Nature and Scope of the Rebuttal Evidence in Crim- inal Cases. — The rule is well settled that in rebuttal the people are restricted to evidence controverting the facts proven by the evidence of the defense; and that no evidence confirmatory of the original case can be introduced by way of rebuttal, even though it clearl} establishes the prisoner's guilt. McLeocl's Trial, pamph. o. 222; R x v. JRlditch, 5 Car. & P. 200; Rex v. Stimpson, 2 ( Jar. & 1'. 415; Brown v. Giles, 1 Car. & P. US, 2 Phil. Ev. note 500. The cases seemingly contra(JRexv. Yoke, Puss. & P. 531; Poscoe, prim. Ev. (6 Am. ed.) 88) have been overruled by later eases, and the recent rule now well settled is, where two offenses of a differ- grade of felony have been committed by a prisoner who stands charged only with the commission of the latter and greater, the THE EXAMINATION OF WITNESSES. 327 evidence must be restricted to proof of the last offense. Proof of any one crime cannot be introduced to support the charge of another. Reg. v. Oddy, 2 Den. C. C. 26S, 273; Barton v. State, IS Ohio, 221; Cole v. Com. 5 Graft. 696; Com. v. Call, 21 Pick. 515; Baker v. State, 4 Ark. 56; Dunn v. State, 2 Ark. 229; Bex v. Whiley, 2 Leach, C. C. 983; LaBeau v. People, 34 N. Y. 223; Friery v. People, 2 Keyes, 424. No rule for the conduct of a trial is more familiar than that the party holding the affirmative is bound to introduce all the evi- dence on his side before he closes. Hastings v. Palmer, 20 Wend. 225. He must exhaust all his testimony in support of the issue on his side before the testimony on the opposite side has been heard. Ford v. Niles, 1 Hill, 301; Rex v. Stimpson, 2 Car. vfe P. 415. He can afterwards introduce evidence in rebuttal only. Rebutting evidence in such cases means not merely evi- dence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove. Silverman v. Foreman, 3 E. I). Smith, 322; Rex v- Stimpson, supra. These rules may, in special cases, be departed from in the discretion of the trial judge, but a refusal to depart from them is no ground of exception. Marshall v. Davies, 78 X. Y. 414. "I must say that so much averse am Ito withholding testimony, that I can hardly conceive of a case so gross and palpable that I should feel constrained to control the discretion of the circuit judge from receiving at any time additional affirmatory, cumula- tive and corroborative evidence of facts previously proved, or which tends to strengthen and add force or probability to such evidence.'' Lumpkin, J., in Walker v. Walker, 14 Ga. 242, 250. So largely is the admission or exclusion of evidence not strictly in rebuttal a discretionary matter with the court that we are jus- tified in formulating a general rule to the effect that material testimony in a case should be admitted at any time, before the formal submission of the case to the consideration of the jury. The presiding judge in the exercise of this discretion has absolute immunity from all review unless it should clearly apj)ear that there was a willful abuse of the discretion confided to him. Of •course where important testimony is withheld with the obvious purpose of placing either party to a disadvantage the trial court 328 LAW OF EVIDENCE IN CRIMINAL CASES. would be abundantly justified in refusing it admission. Gaines v. Com. 50 Pa. 319; Dozier v. Jermcm, 30 Mo. 216, 220; Hunts- man v. Nichols, 116 Mass. 521; Morse v. Potter, 4 Gray, 292; Marshall v. Davies, 58 How. Pr. 231. The language of the New York court of appeals is a practical reaffirmance of the last paragraph. "The extent of the cross-ex- amination upon matters immaterial to the issue, is in the discre- tion of the judge. Inquiries on irrelevant topics to discredit the witness, and to what extent this maybe pursued — are matters committed to the sound discretion of the trial court; and this is the rule as regards the right of inquiry into all matters wholly collateral and immaterial to the issue. The court may permit disparaging inquiries on matters irrelevant to the issue, where the ends of justice demand it, and may exclude them without infring- ing upon any legal right af the parties; and the exercise of this discretion is not the subject of review, except in cases of plain abuse and injustice." La Beau v. People, 31 N. Y. 230. Any evidence in rebuttal that could be fairly considered admis- sible in a civil action is equally competent in a criminal case. This does not imply that a party is at liberty to swell the vol- ume of his former testimony, but rather that lie must meet the evidence afforded by new matter; by evidence not already in the case that will have a tendency to neutralize the effect of the ad- versary's proof. As a rule any evidence that rebuts either the main issue or any minor inquiry, is pertinent. Com. v. Tinkham, 11 Gray, L2; Atkins v. State, 16 Ark. 56S; Spivey v. State, 26 Ala. 90; Lightfoot v. People, 16 Mich. 507; Coleman v. People, :»:> X. Y. 81; State v. Shermer, 55 Mo. 83; Eeid v. State, 50 Ga. 556; People v. Austin, 1 Park. Crim. Rep. 154; Crawford v. State, 12 Ga. 142. The rule exemplified by the authorities is this: that whenever the existence of a purpose, or state of mind, is the subject of in- quiry, explanatory conduct and accompanying expressions of the party himself, or of other persons to him or in his presence, may be shown by proof. Thus, in the case of Hunter v. State, 40 X. .1. L 495, it was declared by the court of errors that the dec- larations of a third party explanatory of an act that was part of the res gestce were not hearsay but were legitimate evidence. In the recent case of People v. Bowling, 84 K Y. 478. which was a prosecution for receiving stolen goods, after the state had proved the receipt of the goods, the defendant, in order to rebut THE EXAMINATION OF WITNESSES. 329- the inference of guilty knowledge on his part, offered to show what statement the thief had made to him at the time he pur- chased the property, with respect to the source from which he had got it; and such statements were held competent evidence by the court of appeals. An application of the same principle appears in the case of Rex v. Whitehead, 1 Car. & P. 67, and reference to other like cases will be found in the text-books. § 219. The Cross-examination. — The privilege of cross-ex- amination is limited only to the discretion of the judge. Peake in his treatise on Evidence, says: "It is impossible to lay down a rule on this subject applicable to all cases, and therefore it must be left wholly to the discretion of the judge, who, in general, is guided by the demeanor of the witness, and the situation he stands in, with relation to the parties." (pp. 189, 190). Pothier, in his treatise on Obligations says : "The cross-examination of witnesses adduced by the opposite party, is a subject of the utmost nicet}^, with respect both to the conduct of the advocate and the discrim- ination of those who are to form a judgment. . . . The abuse to which this procedure is liable are the subject of very frequent complaint, but it would be absolutely impossible, by any but general rules, to apply a preventive to these abuses, without destroying the liberty upon which the benefits (above adverted to) essentially depend; and all that can be effected by the inter- position of the court, is a discouragement of any virulence towards the witness, which is not justified by the nature of the cause. . . Whatever can elicit the actual dispositions of the witness with respect to the event, whatever can detect the operation of a concerted plan of testimony, or bring into light the incidental facts and circumstances that the witness may be supposed to have suppressed; in short, whatever may be expected fairly to promote the real manifestation of the merits of the cause is not only jus- tifiable, but meritorious." Vol. 2, pp. 228, 229. So, as a general rule the range and extent of such an examina- tion is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character. People v. Brown, 72 K. Y. 571;. Ryan v. People, 79 N. Y. 594; People v. Gr«p<>, 70 N. Y. 290, 32 Am. Iiep. 302. If this limitation is not disregarded we can 330 LAW OF EVIDENCE IN CRIMINAL CASES. onl v interfere where there has been an abuse of discretion. Third (,'/■■ at Western Tump. R. Go. v. Loomis, 32 1ST. Y. 127; LaBeau v. People, 34 K Y. 230; People v. Casey, 72 In. Y. 393; People v. Oyer cfc Terminer Ct. 83 !N. Y. 436. The opposite party may cross-examine the witness to any facts stated in his direct examination, or connected therewith, and in so doing may put leading questions, but if he examines him as to other matters, such examination is to be subject to the same rules as a direcl examination. And the court may in all instances, limit the time allowed for the cross-examination of witnesses {Lynch v. State, 9 Ind. 541), or Hie number of witnesses on either side. Mergentheim v. State, 107 Ind. 567. So, too, the court may at all times interpose its .authority to regulate the manner and substance of the examina- tion, to prevent the intimidation of witnesses or the evasiveness. of their replies or any matters legitimately within the scope redi- rect, cross or otherwise. State v. Scott, 80 N. C. 365. a. Rule as to Hostile Witnesses. — Where it appears that a witness is hostile to the party calling him or is reluctant and evasive in his replies, leading questions although generally ex- cluded may be allowed. This too is a matter largely within the sphere of the court's discretion. Klock v. State, 60 Wis. 574. In the language of a well known writer, "the judge may, in his discretion, allow leading questions to be put, on director redirect examination; where the witness is hostile or reluctant, or is in the interest of the other party, or so youthful, ignorant, or infirm as to require the attention to be led; or where his memory has been exhausted without stating some particular, such as a name, which cannot be significantly pointed out by a general inquiry." Ahhott. Trial Brief, 95. Instances frequently arise, particularly on the part of the pros- ecution, where the witness is evidently reluctant and the state's .attorney is burdened with his presence chiefly because he may have been the only eyewitness of the alleged offense. In such cases the trial court should regard the witness as hostile and in- dulge the utmost latitude in his examination. It is quite time that it was understood that the criminal classes of this country are not to be emancipated from all the effects of their vicious courses merely because one of their own ilk is a witness for the state and as such attempts by evasion and subterfuge to further THE EXAMINATION OF WITNESSES. 331 their own interests by placing a stumbling block in the path of the state's attorney. The wide discretion accorded the trial court in the matter of the cross-examination ' of witnesses will correct any tendency to jeopardize the people's case. It is competent to ask a witness on cross-examination, whether lie has been in jail or state prison, and how much of his life he lias passed in such places, with a view to impair his credibility. The extent of such cross-examination rests somewhat in the dis- cretion of the court, but the discretion should be liberally exer- cised. Real v. People, 42 K Y. 270. b. Confined to Relevant Facts. — A witness cannot be asked, upon cross-examination, questions which are not in any way rele- vant to the matters in issue; neither is a question allowed to be asked which, if answered affirmatively, would be wholly irrelevant to the issue; for the purpose of discrediting the witness if he answers in the negative, by calling other witnesses to disprove what he says; but this subject will perhaps be more conveniently •discussed in a subsequent section. Counsel upon cross-examination cannot assume that the witness has made an assertion in his examination in chief, which was not in fact made, or put a question which assumes a fact not in proof. Russell, Crimes, chap. 5, § 2. In Wentworth v. Bidder, 3 E. D. Smith, 309, a point was made that the witness, on cross-examination, had been asked irrelevant ■questions. Woodruff, J., says : "True, the evidence was not relevant to the issue, but there is no test for a cross-examination, if it was relevant to the credibility of the witness or any collat- eral matter opened by the adverse party. The latitude given to -cross-examination is such, moreover, that we must be fully satis- fied that injustice is caused by it, before we would reverse a judgment because on cross-examination a purely irrelevant ques- tion was allowed." See Plato v. K, lly, 16 Abb. Pr. 1SS; Third Great Western Turnp. R. Co. v. Loomis, 32 N. Y. 127; Hardy v. Norton, 66 Barb. 527. The examination, both direct and cross, must be confined to facts relevant to the issue, but in cross-examination the witness need not be confined entirely to the facts to which he testified to the chief, and in the re-direct examination, he is only allowed to explain such matters as were first elicited upon the cross-examina- tion. It is hardly necessary to state that where new matter is by 332 LAW OF EVIDENCE IN CRIMINAL CASES. express sanction of the court introduced after the direct examina- tion by either party, the opposite party is privileged to cross-ex- amine upon the subject of the new matter. c. When Party Makes Witness his Own. — By going into a. new matter not involved in the direct examination, the party cross-examining, makes the witness his own so far as concerns his response to the questions regarding that matter. Houghton v. Jones, 68 U. S. 1 Wall. 702, 17 L. ed. 503; Hughes v. Westmore- land Coal Co. 104 Pa. 207; Donnelly v. State, 26 K J. L. 463, 601; Aurora v. Cobb, 21 Ind. 492; Ilurlhut v. Meeker, 104 111. 541; Austin v. State, 14 Ark. 555; People v. Miller, 33 Cal. 99; State v. Smith, 49 Conn. 376; State v. Swayse, 30 La. Ann. 1323. d. Rule as to Collateral Matters. — Where collateral matter has been introduced into the cause by the party whose witness is on the stand in the testimony in chief — evidence not exactly per- tinent to the issue on trial — whether the other side is bound to treat that as his own collateral matter, as the collateral matter of the cross-examining party. The cross-examiner may ask ques- tion- which are collateral, and may do this very extensively, but he must take the answer of the witness as true. If he is not, satisfied with the answer, nevertheless he is bound by it, because he has chosen to ask the question that really does not belong to the case. But where the party whose witness is on the stand in- troduces collateral matter, and his witness, I will presume, testifies falsely in regard to that collateral matter, whether the other side may not contradict that witness in regard to that collateral matter,, is another question. Wylie, Justice, in United States v. Horsey, Star Route Trial, p. 3S32. Digesting the statement of the court with reference to this matter, it appears that answers to questions regarding side issues or collateral matters are not open to contradiction; but where such matters are brought out by the examination in chief, the cross- examiner may endeavor to contradict him. It should be remembered that ordinarily a witness can testify only to those facts which he knows of his own knowledge except in those cases in which his opinion or the declaration or conduct of others is relevant. When a witness is cross-examined, he may be asked any ques- tion which tends ; (1) To test his accuracy, veracity, or credibility; or THE EXAMINATION OF WITNESSES. 333 (2) To shake lii.s credit, by injuring his character. Witnesses have been compelled to answer such questions, though the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness; but it is sub- mitted that the court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not, in the opinion of the court, affect the credibility of the witness as to the matter to which he is required to testify. In the case provided for in article 120, a witness cannot be compelled to answer such a question. Stephen, Dig. art. 1-20. The rule, as stated in the books, that a witness cannot be en >ss- examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evi- dence, if he should deny it, thereby to discredit his testimony, does not, by any means, imply that a witness may be cross-exam- ined, for such purpose, as to every fact which is relevant to the issue. The right of cross-examination, for such purpose, is lim- ited to those matters which tend to contradict, discredit, vary, qualify, or explain the testimony given by the witness on direct examination. In the leading case of Atty. Gen. v. Hitchcock, 1 Exeh. 01, the rule was stated as follows by Alderson, B.\ "A witness may be asked any question which, if answered, would qualify or contradict some previous part of that witness's testi- mony, given on the trial of the issue: and if that question is so put to him and answered, the opposite party may then contradict him, and for this simple reason, that the contradiction qualifies or contradicts the previous part of the witness's testimony, and so removes it." The reported cases, so far as we are acquainted with them, are consistent with the rule, and the reason of it, stated by Baron Alderson. If the cross-examination tends merely to disgrace the witness, but relates to a collateral and independent fact, and goes clearly to the credit of the witness, whether in such ease he lias the priv- ilege to decline or not, the matter so far rests in the discretion of the trial court that in the absence of a claim of privilege, if the question relate to a matter of recent date and would materially assist the jury or the court in forming an opinion as to his credi- bility, the court will usually require an answer, over the objection of counsel, but may sustain an objection. 334 LAW OF EVIDENCE IN CRIMINAL CASES. When tlic answer would tend to criminate the witness, but would be collateral and irrelevant to the issue, and yet would affect his credibility, if he do not claim his privilege, no distinc- tion, so far as the discretion of the court and the right of a party to call for its exercise 1 > \ an objection are concerned, can be per- ceived between Mich a case and one differing from it in only that the answer would merely disgrace the witness. In short, where- the question relates to a particular act which is collateral and irrelevant to the issue, it is proper for a party to object, and it is- within the sound discretion of the court, where the witness does do1 exercise a privilege to decline, to permit an answer, if, by affecting the credibility of the witness, it will subserve justice, or to sustain the objection, if such purpose will not be promoted by the answer; and if the answer would not affect the credibility of the witness, the court should sustain the objection, and has no- discretion to admit the evidence. See Third Great Western Tump. R. Co. v. Loomis, 32 K Y. 127; Shepard v. Parker, 36 N. V. 517; South Bend v. Hardy, 98 Ind. 577. e. Duty of the Court to Protect the Witness. — Zeal in a prosecuting attorney is entitled to the highest commendation, but that zeal most be exercised within proper limits. In civil cases counsel often take too much latitude in the cross-examination of witnesses. Witnesses are entitled to respectful consideration, and it is the duty of courts to see that they are protected from the insinuations and attacks of counsel, whether the insinuation or attack is direct or is in the form of a suggestive question. In criminal cases the prosecuting attorney is a public officer, acting in a quasi judicial capacity. Juries very properly regard him as- unprejudiced, impartial, and non-partisan; and insinuations thrown out by him regarding the credibility of witnesses for the defense are calculated to prejudice the defendant. People v. Cahoon, 88- Mich. 456. In Riokdbus v. Gott, 51 Mich. 227, the court held that "the duty of the trial judge to repress needless scandal and gratuitous attacks on character is a very plain one, and good care should be taken to discharge it fully and faithfully." See also, as bearing upon this question. Bond v. Pontiac, O. & P. A. R. Co. 62 Mich. 643; Cronhhite v. J > ickerson, 51 Mich. 178; Wheeler v. Wallace, 53 Mich. .">.">»'>; People v. Hare, 57 Mich. 5061 These cases also- impose the duty on the judge to protect every witness from irrel- THE EXAMINATION OF WITNESSES. &6o evant, insulting or improper questions, and from harsh or insult- ing treatment; and a witness shall be detained only so long as the interests of justice require. f. Cross-examination During Absence of the Accused. — Generally, it may be said that the continuance of a cross-examin- ation of the people's witnesses during the brief absence of the prisoner on the trial is not a violation of the statutory provision that no person can be tried for a felony "unless he be personally present during such trial." People v. Bragle, 88 N. Y. 585, 42 Am. Rep. 269. Maurer v. People, 43 N. Y. 1, does not state a contra view, as in that case the absence was of some length and effected a substantial right of the accused. g. Recalling Witness. — "Whenever any witness has been exam- ined in chief, the opposite party has a right to cross-examine him, and after the cross-examination is concluded the party who called the witness has a right to re-examine him. The court may, in all cases, permit a witness to be recalled either for further examina- tion in chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and further re-examination respectively. Stephen, Dig. art. 126; Cummings v. Taylor, 24 Minn. 429; Com. v. McGorty, 114 Mass. 299; Con- tinental Ins. Co. v. Delpeuch, 82 Pa. 22a. It is within the discretion of the judge at the trial, to permit a witness to be recalled to a fact in respect to which he had before testified, and to explain, qualify or contradict his former state- ments, and the discrepancy in the statements only affects his credi- bility. A court of review cannot revise or reverse the decision of the judge at the trial, in a matter properly resting in his discre- tion! Wright v. Willcox, 9 C. B. 650; People v. Cook, 8 K Y. 67; Williams v. Sargeant, 46 N. Y. 482. A witness once examined cannot be re-examined as to the same matter without leave of the court. But he may be re-examined as to any new matter, upon which he has been examined by the adverse party. After the examinations on both sides are once concluded, the witness cannot be recalled without leave of the court. This is purely a discretionary matter and never a fit sub- ject of review unless for gross abuse of the discretion. Under obvious principles of justice the trial court should allow, in all cases, civil or criminal, a witness to explain an error or inad- vertence in his testimony when he requests to do so before leav- ooti LAW OF EVIDENCE IN CRIMINAL CASES. ing tlic stand; and it is within the discretion of the court to recall him for that purpose. Oberf elder v. Kavanaugh^l Neb. 483. h. Views of Sir James Stephen. — Stephen, in his Digest of the haw of Evidence, expounds the law as follows: "When a witness is cross-examined he may be asked any ques- tion which tends: 1. To test his accuracy, veracity, or credibility; or _. T<> shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except in the case provided for in article 120, namely, where the answer might expose him to a criminal charge or pen- .alty." Art. 129. By placing such inquiries within the sound discretion of the court, the past lives of witnesses are not liable to be ransacked and exposed; for against such unreasonable and oppressive cross- examinations the power of the court may be interposed, on its own .motion, to protect the witness and prohibit such questions. In the liberality allowed on cross-examinations, to promote the ends of justice, a sound discretion will never sanction inquiries the sole purpose of which is to disgrace the witness, and not to test his credibility. And whenever such is the object of it, it is the duty of the court to disallow it, and to confine the cross-examination to proper limits. It will be seen, therefore, that the abuse of such a cro.-s-examination is guarded against: 1. By the privilege of the wirne^ to decline to answer any question which may disgrace him, or may tend to charge him as a criminal; and 2. By the power of the court to interpose and to protect the witness, of its own motion. State v. Bacon, 13 Or. 143. i. Cause for Remembering Certain Facts. — A witness is at liberty to state certain collateral facts that tend to fix some other fact about which he is being questioned in his memory, and it frequently occurs in all examinations that the fact of having had a conversation concerning a certain matter is one of the surest methods of remembering the subject-matter called for. It is always competent for a witness to state that he had a con- versation with a third person on a certain subject germane to the ;n dispute, andatatime specified, as a reason for his accurate recollection of the fact to which he has testified. The rules of evidence are those of common sense and human experience; and both of these teach us that the retentiveness of a witness's memory THE EXAMINATION OF WITNESSES. 337 «,s to a particular fact or indictment, is greatly improved where, after seeing or hearing of it, he subsequently converses about it. -Adams v. Robinson, 65 Ala. 587. j. The English Rule. — Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the action and inconsistent with his present testimony, the circum- stances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he has made such a statement, proof may be given that he did in fact make it. The same course may be taken with a witness upon his exami- nation in chief, if the judge is of opinion that he is "adverse" (i e. hostile) to the party by whom he was called, and permits the ■question. Stephen, Dig. art. 131. When a witness under cross-examination has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence can be given to contradict him, except in the follow- ing cases : (1) if a witness is asked whether he has been previously con- evicted of any felony or misdemeanor, and denies or does not admit it, or refuses to answer, evidence may be given of his previous conviction thereof. (2) If a witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted. Stephen, Dig. art. 130. § 220. Importance of Cross-examination. — The importance and value of a cross-examination is truly and forcibly stated by Mr. Starkie in his"*work on Evidence, vol. 1, page 25. He says : "The power given to a party against whom evidence is offered, •of cross-examining the witness upon whose authority the evidence depends, constitutes a strong test both of the ability and the will- ingness of the witness to declare the truth. By this means the opportunity which the witness had of ascertaining the fact to which he testifies, his ability to acquire the requisite knowledge, liis powers of memory, his situation with respect to the parties, his motives, are all severally examined and scrutinized." Every jjerson who has been engaged in the trial of causes in courts of 22 ;;:;s law of evidence in criminal cases. justice, indeed every one who has given any attention to the trial of causes, lias seen how efficacious a cross-examination is, in elicit- ing truth, in separating hearsay from knowledge, and in defeating the most carefully prepared schemes of perjury and fraud. A right so valuable to parties should not he taken away or impaired.. ( >n the contrary, it should be held sound and guarded against all attempts, open or covert, to limit or restrict it. Like most other rights of litigants, it may be waived or lost by laches. But to deprive a party of it, the waiver or the laches must be clearly shown. It will not do to refuse a party the right of cross-exami- nation upon doubtful evidence of an intention onhis part to waive or surrender it. Cole v. People, 2 Lans. 370. "Cross-examination," says Christiancy, Ch. J., "is the greatest, test of knowledge, as well as the veracity of the witness. The right to pursue it may sometimes be abused; and when it is sought to be abused, — as when counsel insists upon going over the same ground again and again, or where it is apparent that the witness- has already fully answered without any appearance of evasion, and it is evident the counsel is merely pushing the witness for the- sake of annoyance, or for any illegitimate purpose, — it is compe- tent for the court, in its discretion, to put an end to it." The advantages of the viva voce examination are thus outlined: I iv Sir John Coleridge : "The most careful note must often fail to convey the evidence fully in some of its most important ele- ments, viz: those for which the open oral examination of the wit- ness in presence of prisoner, judge and jury, is so justly prized.. It cannot give the look or manner of the witness; his hesitation, his doubts, his variations of language, his confidence or precipi- tancy, his calmness or consideration; it cannot give the manner of the prisoner, when that has been important, upon the statement of anything of particular moment. It is, in short, or it may be,, the dead body of the evidence, without its spirit, which is supplied when given open or orally, by the ear and eye of those who receive it." Reg. v. Bertrcmd, L. E. 1 P. C. 535, 10 Cox, C. C. 625. § 221. Extent of Cross-examination. — It was ruled at an early day in the supreme court of Missouri that when one party introduced a witness and examined him, the adverse party could cross-examine tin; witness as to all matters involved in the case, no matter how formal or unimportant the examination in chief THE EXAMINATION OF WITNESSES. 339 may have been. Page v. Kankey, 6 Mo. 433; St. Louis & I. J/. R. Co. v. Silver, 56 Mo. 200. The authorities are in conflict on this subject and may be found collated by Professor Greenleaf. 1 Greenl. Ev. § 445; State v. Brady, 87 Mo. 142. And where a witness, cross-examined in part, without fault of the party who summoned him, disappears, so that his cross-exam- ination cannot be completed, it is not the right of the cross- examining party to have the whole evidence stricken out. lin- den v. Pratt (Sup. Ct. K Y.) 1 Thomp. & C. 554, S AhV L. J. 382. Whether, when a party is once entitled to cross-examine a wit- ness, his right continues through all the subsequent stages of the cause, so that if the party should afterwards recall the same wit- ness, to prove a part of his own case, he may interrogate him by leading questions, and treat him as the witness of the party who first adduced him, is also a question upon which different opin- ions have been held. It is legitimate cross-examination to interrogate an opposing witness as to his relations to the parties and the litigation, his motives, interests, inclinations, and prejudices, his means of ob- taining correct and certain knowledge of the facts to which he testifies, and the manner in which he has used those means. 1 Greenl. Ev. § 446. Such testimony is not collateral and irrele- vant to the issue, and the party calling it out, if it be adverse to him, may contradict it by other testimony for the purpose of dis. crediting the witness. All this is quite rudimentary in the law of evidence. Schuster v. State, 80 Wis. 107. From the necessity of the case, it is difficult, perhaps impossible to lay down any precise or definite rule fixing the limits of such cross-examination. Necessarily, it must be left to the sound dis- cretion of the trial court, subject only to review for its abuse. The limit of cross-examination of ordinary witnesses is not marked with any great accuracy or distinctness. Questions are frequently allowed which strictly do not refer to matters about which the witnesses testified in chief. Great latitude is given trial courts in passing upon the admissibility of such questions; and their discretion is rarely interfered with by appellate courts. It must be remembered that the privilege given a defendant in a criminal case to testify for himself is by no means an unmixed blessing. There are cases where an innocent defendant could do 340 LAW OF EVIDENCE IN CRIMINAL CASES. himself no good, and might do himself harm, by going on the witness stand. But his refusal to do so will be construed to his injury by the average juryman, in spite of any instruction the court may give on the subject. And then, if he does testify, his temptation to commit perjury will be considered so great that he will rarely be credited with telling the truth. But if he cannot go upon tin- stand for the mere purpose of stating a fact which will explain some suspicious circumstance, without being forced, uponjM*oss-examination, to lay bare the whole history of his life, he bad better keep away from it, — unless, indeed, instead of hav- ing a human character, he is a miraculous bundle of virtues, with no vice, and with nothing which men call a vice. People v. JA ', p. 202, tbat when "a person accused of crime elects to become a witness in his own behalf, he occupies the same position as any other witness TUE EXAMINATION OF WITNESSES. 347 •state or by the accused. Such proof does not violate defendant's -constitutional right to "meet the witness face to face." And his and may be fully examined in conformity to the established rules of evidence to contradict any testimony he may give, or to impeach or impair his own credibility, in the same manner as that of any other witness may be impaired." In Ruloffw. People, 45 X. Y. 213, 221, although the exception was to com- ments by the trial judge on the failure of the defendant to take the stand in his own behalf, Allen, J., said : "If sworn, ... he (the defendant) will, under the law as now understood and interpreted, be subjected to the cross- examination of the prosecuting officer, and made to testify to any and all mat- ters relevant to the issue, or his own credibility and character, and under pre- tense of impeaching him as a witness, all the incidents of his life brought to bear with great force against him. " Cross examination of an accused as to matters not touched by his direct ex- amination is not compelling him "to be a witness against himself" within the constitutional prohibition. McGarry v. People, 2 Lans. 227. The court said, p. 232: "He was not only a volunteer, but had taken the necessary oath to enable himself to testify, 'to tell the truth, the whole truth and nothing but the truth' upon the whole issue of traverse between himself and the people. He could not have been compelled to give evidence at all, but when he made himself a witness, ... he waived the constitutional pro- tection in his favor and subjected himself to the peril of being examined as to any and every matter pertinent to the issue." Reversed on another point with- •out noticing the question arising on the defendant's cross-examination. Me- Garyx. People, 45 X. Y. 153. The range and extent of cross-examination is within the discretion of the trial judge, subject to the limitation tbat it must relate to facts pertinent to the issue or which tend to discredit the witness or impeach his moral character. People v. Court of Oyer d- Terminer, 83 X. Y. 436, 460; People v. Clark, 3 Cent. Rep. 801, 102 X. Y. 735; People v. Hooghkerk, 96 X. Y. 149, 163; Territory v. O'Hare, 1 X. D. 30. When the accused testifies in his own behalf it is within the discretion of the trial court to allow cross-examination on the whole case, although not covered by the direct examination. Bisque v. State, 6 Cent. Rep. 331, 49 X. J. L. 249. An accused when a witness in his own behalf is subject to the same tests as are applied to other witnesses, i. e., to cross-examination as to any pertinent matter and impeachment by assailing his character or by proof of contradictory statements. Clarke v. State, 78 Ala. 474; on subsequent appeal, 87 Ala. 71; Norris v. State, S7 Ala. 85. An accused person may be cross-examined the same as any other witness to lay the foundation for his impeachment. State v. Red, 53 Iowa, 09. As to relevant matters. A defendant in a criminal proceeding, who elects to testify in his own be- half, waives the constitutional protection against being compelled to give evi- dence against himself and is subject to cross-examination on all matters perti- nent to the issue, State v. Wentworth, 65 Ml-. 234, 240, 20 Am. Rep. Q88;State v. Witham, 72 Me. 531; State v. Ober, 52 X. II. 459, 13 Am. Rep. 88; Stale v. Cohn, 9 Xev. 179; Rains v. State, 88 Ala. 91; People v. Bussey, 82 Mich. 49. ,'Ab LAW OF EVIDENCE IN CRIMINAL CASES. testimony then given may be proved, if necessary, by the testi- mony of one who was present and heard it, who may state its- Where an accused person as a witness for himself broadly denies the crime charged, the prosecutor may cross-examine him on any matter relevant and material to the issue. Thomas v. State, 1 West. Rep. 309, 103 Ind. 419; Com.v. Clark, 5 New Eng. Rep. 378, 145 Mass. 251. State v. Clinton, 67 Mo. 380, decided prior to the limitation of the cross-ex- amination of an accused by statute held him subject to cross-examination on any matter pertinent to the issue. So, too, Slate v. Rugan, 68 Mo. 214; States. TesUrman, 68 Mo. 408, and State v. Cox, 67 Mo. 392. Cross-examination of an accused directed against the accuracy and truthful- ness of his evidence in chief is proper. People v. Hicks, 79 Mich. 457, 463. If the accused in a testimony in chief has given an account of his movements- upon a day named, it is proper to go fully into the subject on cross-examina- tion. Boyle v. State, 2 West. Rep. 788, 105 Ind. 469. An accused person who undertakes to tell all that transpired within a certain time may be asked on cross-examination if a certain incident happened within that interval, although he has made no reference to it in his direct examination. People v. Russell, 46 Cal. 121, decided prior to the limitation of cross-examina- tion by statute. See supra. It is proper to ask one on trial for murder, whose plea was self-defense,, whether he did not flee after the killing and whether he had been in jail or en- gaged in other altercation. Baker v. Com. (Ky.) Nov. 28, 1891. One on trial for rape who has testified that he was not suffering from gon- orrhoea at the time of the offense may properly be cross-examined as to his pos- session and use of certain bottles of medicine while in jail after his arrest. People v. Glover, 71 Mich. 303. In State v. Pritchett, 106 N. C. 367, it was held proper cross-examination of one on trial for murder to ask what he played off crazy for, referring to hie conduct at the time of his arraignment. One indicted for murder, who has testified that he committed the homicide because of insulting words spoken concerning his wife, may properly be asked on cross-examination whether she is really his wife, and when and by whom they were married. Watson v. Com. (Va.) 15 Va. L. J. 379. A defendant on trial for adultery having denied in his testimony in chief the commission of the offense at the time alleged, or at any other time, may be asked on cross-examination as to having pleaded guilty to such an offense in another state. Com. v. Mosier, 135 Pa. 221. A defendant testifying in his own behalf is to be treated the same as any or- dinary witness, and having put his character in issue may be cross-examined with a view of showing that it is different than represented by his witnesses. State v. Merriman, 34 S. C. 17. A defendant who becomes a witness for himself may be asked about previous statements inconsistent with his testimony for the purpose of affecting his cred- ibility. Com. v. Tollicer, 119 Mass. 312. In this ease Ames, /., said, p. 315: "By availing himself of the right to take- the stand as a witness, the defendant became a general witness in the case, sub- ject to the same tests of truthfulness and the same rules as to examination and cross-examination as are applicable to all other witnesses. Being sworn to tell THE EXAMINATION OF WITNESSES. 349 6iil»>fance, if unable to repeat its words. But such testimony must be placed before the jury as nearly as possible as the de- the truth, the whole truth and nothing but the truth, he waived all right to keep anything buck, even in the case of questions, the answers to which would tend to criminate himself." In Com. v. Lannan, 13 Allen, 563, Hoar, J., says: "The defendant, by of- fering himself as a witness, waives his right to object to any question pertinent to the issue, on the ground that the answer may tend to criminate him." This language is criticised as obiter and not justified by the facts of that case by a writer in 4 Crim. Law Mag. 335, who maintains that the question there allowed was proper on the ground that the direct examination had opened the way for it, and who also maintains that the true rule is that as to questions asked on the cross-examination which are entirely foreign to the testimony in chief, the accused when a witness is entitled to claim his privilege against self crimina- tion, p. 334. A like criticism is made on similar language in Com. v. Mullen, 97 Mass. 545. The cross-examination of a defendant in a criminal prosecution is neither limited to the range of the direct, nor can he refuse to answer questions crimi- nating himself of the very offense for which he is being tried. State v. Allen, 107 N. C. 805. In Spies v. People, (The Anarchists' Case), 10 West. Rep. 701, 122 111. 1, 235 it is said: "If a defendant offers himself as a witness to disprove a criminal ■charge, he cannot excuse himself from answering on the ground that, by so doing, he may criminate himself." So held in Com. v. Morgan, 107 Mass. 199. An accused who testifies in his own behalf and denies the commission of the offense at the place charged may be asked on cross-examination whether he has ■committed the offense charged elsewhere, and he will not be excused from answering on the ground that his answer would criminate himself. Com. v. Nichols, 114 Mass. 285; Slate v. Klitzke, 46 Minn. 343. A witness who consents to testify to any matter tending to criminate himself must tell all relating thereto. State v. Fay, 43 Iowa, 651; Slate v. Nichols, 29 Miss. 357. "As to any fact or circumstance relevant to the issue, or which sheds light upon the commission and character of the offense, though iuculpatory, he waives his constitutional right to protection against being compelled to give evidence against himself. But the waiver extends no farther than to all such facts and circumstances as may tend to illustrate the particular-offense charged." Clarke v. State, 78 Ala. 474, 480; Cotton v. State, 87 Ala. 103; Clarke v. State, £7 Ala. 71; Norris v. State, 87 Ala. 85. "Within these limits, the fullest cross-examination should be allowed; but its range into inquiries respecting past transactions and offenses, separate and distinct, is prohibited by the constitutional inhibition." Clarke v. Slate, supra; Smith v. State, 79 Ala., 21; Clarke v. State, and Norris v. State, supra. As to irrelevant matters. An accused person testifying in his own behalf is subject to the same cross- examination as any other witness, the range of which on irrelevant matters rests in the sound discretion of the trial court. Uanoff v. State, 37 Ohio St. 178; Tanke v. Slate, 51 Wis. 404. 350 LAW OF EVIDENCE IN CRIMINAL CASES. ceased witness would have placed it, if living and present. The* fact that a witness on such previous trial, who is still living, is The extent to which a defendant may be cross-examined as to his previous residence and history is largely in the discretion of the trial court. State v. Bomain, 44 Kan. 719. The extent of the cross-examination of an accused directed against his credi- bility is within the discretion of the trial court. Cowley v. People, 8 Abb. N. C. 1, 34, affirmed, 83 N. Y. 464, 38 Am. Rep. 464, without noticing this point. Earl, 4 LAW OF EVIDENCE IN CRIMINAL CASES. to attend on some future occasion. 1 Stark. Ev. (Sharswood's ed.)» 411, note Y. The more recent decisions in this country how- ever, support the contrary view; and they seem to us to better comport with both reason and analogy, as well as to more effi- ciently promote the convenient administration of justice. It is- the settled rule, that when the subscribing witness to an instru- ment is out of the state, his handwriting may be proved, whether in a civil or criminal proceeding. The following authorities are directly in point on this question in criminal cases : Sullivan v. State, 6 Tex. App. 319; People v. Devine, 46 Cal. 45; ShacMeford v. State, 33 Ark. 539; Hurley v. State, 29 Ark. 17. And the following in civil cases: Magill v. Kaufman, 4 Serg. & R. 317; Howard v. Patrick, 3S Mich. '795; Carpenter v. Graff, 5 Serg. & E. 162; Long v. Davis, 18- Ala. 801. The reasoning and dicta in the following cases, of absent, de- ceased, insane and sick witnesses, support the same view: Dray- ton v. Wells, 1 Xott & McC. 409, 9 Am. Dec. 718; Reynolds v. United States, 98 U. S..145, 25 L. ed. 244; Slusser v. Burling- ton, 47 Iowa. 300; Summons v. State, 5 Ohio St. 325; Marler v. State, 67 Ala. 55; Rex v. Hogg, 6 Car. & P. 170; Emlg v. Diehl, 76 Pa, 359; Miller v. Russell, 7 Mart. X. S. 266; Lowe v. State,. S6 Ala. 47. In People v. Murphy, 45 Cal. 137, it is distinctly held that a person who kept notes of the testimony of a deceased witness may read such notes to the jury as the testimony of the deceased witness. Hair v. State, 16 Neb. 601. And the same ruling obtains in New Hampshire. "Any per- son who heard the respondent testify on a former hearing, may testify what he then stated for the purpose of contradicting his present story. Such impeaching testimony is not confined to such witnesses as took minutes of his former testimony." State Archer, 54 N. H. 465. In cases where the witness was living, but had gone without the jurisdiction, the decisions have been very uniform that the testi- mony is not admissible. In Finn v. Com. 5 Rand. (Va.) 701, it is said that proof of what a witness said upon a former trial is inadmissible in a crim- inal prosecution, especially where he has only removed out of the state. The same was held in New York, in the case of People v_ THE EXAMINATION OF WITNESSES. 355 Newman, 5 Hill, 295. So also in Brogy v. Com. 10 Gratt. 722; Bergen v. People, 17 111. 420, 65 Am. Dec. 672; State v. Jlouser, 28 Mo. 233. I have found no case where the testimony of a witness, absent but living, given at a former trial, has been allowed to be proved at a subsequent trial. There are cases where the testimony of the witness in the preliminary examination has been allowed to be proved, when the witness had died, but none where he had gone from the jurisdiction. And I think the law must be held to be that when the witness is living he must be produced, or his testi- mony cannot be received in criminal cases, even if he be beyond the jurisdiction of the court or all of the United States. The Constitution of the United States provides (Amendments, art. 6), that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him, and this without exception. Not if they can be produced, nor if they be within the jurisdiction, but absolutely and on all occasions. And, if the accused has this right, it must be mutual, and exist on the part of the government. The trial would not be a fair one otherwise. Nor can it fairly be maintained that, if the witness has once been confronted with the accused, before the committing magistrate, that the requirements or guaranties of the constitution are an- swered. It is little better than an evasion of the matter to say that if the witness has been present at the preliminary examination, when the real question is whether the accused shall be held for the action of the grand jury, that, therefore, when he is indicted, and life, liberty or property are at stake, the right no longer ex- ists. As well might it be said that if, in the complaint before the magistrate, the accused was informed of the nature and cause of the accusation, the subsequent indictment need not state the accu- sation again. The fair meaning of the constitution is that wherever and whenever he is put on his final trial he shall be confronted with the witnesses against him, if they be alive. United States v. AngeU, 11 Fed. Rep. 34. "What a witness, since dead, has sworn upon a trial between the same parties may be given in evidence, cither from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having 356 LAW OF EVIDENCE IN CRIMINAL CASES. 1 :i given." Mansfield, Oh. -J., in Doncaster v. Day, 3 Taunt. lv.l ; . See also Roberts v. State, 68 Ala. 515; State v. Able, 65 Mo. 357; People v. Brotherton, 47 Cal. 388; State v. Johnson, 12 .\Y\. 121; Dunlap v. State, 9 Tex. App. 179; State v. Wilson, 21 Kan. 1S9. Paraphrasing the expression of Lord Mansfield the paragraph might read: "The testimony of a witness in a former trial since deceased, or beyond the jurisdiction, or for any adequate reason unable to testify, is com potent if it satisfactorily appears that the absence or disability is without the connivance or fault of the party offering the evidence. Provided always that the evidence offered was given in a former trial of the same action between the same parties and affected the same rights in issue." The common law rule (in its application to parties examined as witnesses) has been incorporated into the 1ST. Y. Code of Civil Procedure, § 830, which provides, "where a party has died since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, may be given or read in evidence at anew trial or hearing by either party, subject to any other legal objection to the competency of the wit- ness, or to any legal objection to his testimony or any question put to him." It is pertinent to add that the death of the absent witness must be satisfactorily shown and that mere hearsay evidence calculated tn establish it is inadmissible. State v. Wright, 70 Iowa, 152. See Presumption of Death, ante, § 18. It may be taken as the rule, that where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify or other misconduct of the witness, or by any means, other than by the act of God, the act of the party himself, or some cause to which he assented, that the testimony given on the examination in chief may not be read. P< ojpU v. ( 'ole, 43 N. Y. 508; Smith v. Griffith, 3 Hill, 333. See J r nrr<:'st v. Kissam, 7 Hill, 465. And the rule may be applied to the examination of a witness on commission, or conditionally out of court, when, in such case, the party desiring the benefit of a cross-examination has not been present or represented at the tak- ing of the testimony, and had no opportunity to push his exaini- THE EXAMINATION OF WITNESSES. 357 nation, or to know the refusal of the witness to testify, or of his neglect to answer any question, or of other like misconduct of the witness. Smith v. Griffith, supra. § 225. Testimony of the Accused on his Preliminary Ex- amination. — Immediately upon his arrest the party accused of crime is brought before a committing magistrate and examined with a view to determine the probability of his guilt or innocence. The testimony elicited on such examination, so far as it regards the accused, is not competent against him at the trial unless he is duly cautioned that any statement he may make is liable to be urged against him in his subsequent trial. State v. Spier, SO JS". C. 600; People v. Dorr, 61 Cal. 544; Dickerson v. State, 48 Wis. 288; Farhas v. State, 60 Miss. >47; Rector v. Com, SO Ivy. 46S; State v. Glass, 50 Wis. 218, 36 Am. Rep. 845. The testimony of a mere witness on a preliminary examination may be given against him where subsequently he is indicted for offense. People v. Mondon, 103 X. Y. 211, 57 Am. Eep. 709. We have previously stated the general rule that testimony either by witness or by the accused given in a former trial or investigation which is compulsory and tends to criminate them cannot be used. On the preliminary examination or indeed in any trial whatever a neglect to cross-examine a witness assuming the presence of the right and opportunity to do so will not preclude the opposite party from introducing the testimony of the witness on a subse- quent trial. Forrest v. Kissam, 7 Hill, 470; Gomins v. Ildjidd, 12 Hun, 375; People v. Com. 43 X. Y. 508. Generally it may be said that it is error to suffer to go to the -jury any evidence given by a witness on direct examination for the people, where by sudden illness or by death of such witness, or other cause without the fault of and beyond the control of the prisoner, he is deprived of his right of cross-examination. Peo- ple v. Cole, supra. Mr. Greenleaf says in section 163 of his work on Evidence: k 'But, where the testimony was given under oath in a judicial proceeding, in which the adverse litigant was a party and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer want- ing, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties." See 358 LAW OF EVIDENCE IX CRIMINAL CASES. also Doncaster v. Day, 3 Taunt. 262; Glass v. Beach, 5 Yt. 172; Leightner v. Wilke, 4 Serg. & K. 203; Sheriden v. Smith, 2 Hill, 53S. § 220. Summary of the Views here Stated. — The most crit- ical analysis of the entire topic relating to the examination of wit- nesses fails to disturb the well recognized principle that accords to the trial court a wide discretion in dealing with the sub- ject. The number of witnesses sworn to prove a given fact, the extent of their examination, the order of the proof, the lati- tude indulged as to leading questions, the scope of the cross- examination, together with many other essentials connected with the trial of a criminal case combined to place within the control of the presiding judge many functions that tend to neutralize all set formulas regarding the subject. Especially is this true of crim- inal prosecutions where life and liberty are at stake, the previous analysis has shown that at every stage of the trial, evidence relevant to the issues will be admitted, at least on the part of the defendant. Xo arbitrary rules relating to direct, re-direct, rebutting or surrebut- ting evidence will be allowed to infringe the great constitutional right of personal liberty and the American juries are substantially a unit in recognizing the constant presence of that indefinable thing familiarly known and previously referred to as the "discre- tion of the court." Now it is familiar law carrying its own pregnant commentary that a discretionary order or ruling will not be disturbed by an appellate tribunal except for gross and palpable abuse. Is it not obvious, then, that any attempt to fetter a criminal trial by the dogmatic assertion of rules as to the examination of witnesses is a sheer dissipation of energy? It is with this theory well in mind that we find our warrant for cautioning the practitioner against too great a reliance upon technique in criminal prosecution. CHAPTER XXXII. IMPEACHMENT OF WITNESSES. ;§ 227. General Rules Relating to. 228. Great Latitude Allowed in Cross-examination. 229. To Wind the Attention of the Witness should be Called. 230. California Code Provisions on the .Subject. 231. When the Impeachment is Effected. 232. Importance of Impeaching Testimony. 233. Partial Review of the Decisions. ^3-i. When Party may Contradict his own Witness. 235. Statement of the New York Rule. 23G. Inconsistent Statements may be Shown. 237. Discrediting Party's own Witness on Groiind of Surprise. 238. Party may Impeach a Witness he is Compelled to Call. 239. Specific Acts of Immorality cannot be Shown. 2-40. An Examination of Authorities. 241. When Declarations Made out of Court are Admissible. 242. Interpreter may be Impeached. § 227. General Rules Relating to. — In regard to the im- peachment of witnesses, I will first refer to the earnest contention so familiar to the annals of our criminal courts, that inquiries as to particular acts are incompetent; and that impeachment can be accomplished only by evidence of the general reputation for truth -and veracity. As a corollary to this first contention it is claimed that such evidence cannot be admitted under any circumstances without first inquiring of the witness sought to be thus impeached, whether the fact was true or not. The general rule that a witness cannot be impeached by con- tradicting him as to collateral matters, is well understood. But it has been held, that the feelings of a witness, and his disposition to tell or conceal the truth in the particular suit in which he is called, are not collateral within the meaning of this rule. And he may therefore be impeached by showing that he has attempted to procure another witness to give false evidence in the same suit. Folsom v. Brawn, 25 X. II. 122; Martin v. Farnham, 25 X. 11. 199; Atwood v. Welton, 7 Conn. 70; Morgan v. Frees, 15 Barb. 552; Queen's Case, 2 Brod. & B. 251. 359 3G0 LAW OF EVIDENCE IN CRIMINAL CASES. If sueli evidence is admissible to impeach an ordinary witness it would more clearly be admissible against a party to the suit. An attempt by a party to sustain his claim in court by procuring a witness to commit perjury in support of it, would fairly warrant an inference that his claim was not founded in truth. And it must have been upon this principle that in State v. RoJifrischt y 12 La. Ann. 382, the jn-osecution was allowed to prove that the defendant had attempted to bribe one of the witnesses of the state to swear falsely. Such acts by a party would seem fairly admis- sible as circumstantial evidence which the jury are entitled to consider. But where such evidence is admitted merely for the purpose of impeachment, it is perhaps the established rule, that the wdtness sought to be thus impeached must first be interrogated as to the fact. It was so held in the Queen's Case, above cited; and such is the general current of authority in this country, though there are c uses where the rule has been denied. But in that case the rea- son of the rule was stated to be, that the witness might have an opportunity to explain. The Chief Justice said: "And it is in our opinion of great importance that this opportunity should be thus offered, not only for the purpose already mentioned, but be- cause if not given in the first instance it may be wholly lost; for a witness who has been examined, and has no reason to suppose that his further attendance is requisite, often departs the court and may not be found or brought back until the trial be at an end." This shows, perhaps, a good reason for the rule. But where the reason fails, the rule fails also. Martineau v. May, IS Wis. 59. § i'i >s . Great Latitude Allowed in Cross-examination. — It is abundantly settled that in criminal prosecutions the rules of evidence accord to the cross-examiner great latitude in any attempt to impeach the character of the witness. In a very recent case the witness was asked: "Are you a prostitute?" Even if the witness claimed a privilege, the question should have been allowed. enl. Ev. (4th ed.) § 445; Stark. Ev. 170; Hall v. State, 40 Ala. 699; Com. v. Shaw, 4 Cush. 594, 50 Am. Dec. S13. All the authorities hold that such a privilege, if any, is purely personal witli the witness, and may be waived by the witness if he does- not claim it himself. 1 Thomp. Trials, § 307; 1 Greenl. Ev. IMPEACHMENT OF WITNESSES. 361 § 451; Whart. Crim. Ev. § 465; Clark v. Reese, 35 Cal. SO; Short v. State, 4 Harr. (Del.) 56S; Sodusky v. JfcGee, 5 J. J. Marsh. 621; State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688; Roddy v. Finnegan, 43 Md. 400; State v. Bilansky, 3 Minn. 246; T< w- comb v. State, 37 Miss. 3S3; Fries v. Brugler, 12 X. J. L. 01, 21 Am. Dec. 52; Richard v. Collins, 23 Larb. 441; Southard v. Rexford, 6 Cow. 255. The foregoing authorities are ample warrant for the formula that, upon cross-examination, a witness may be asked any cmes- tion which tends to test his accuracy or credibility or to impair his credit by compromising his character, but the extent to which such examination shall be allowed is in the discretion of the court. But it is well settled that evidence of the good character of a. party is not relevant in a civil action, or of a witness in an action, until evidence of the bad character of such party or witness may be given, or unless the issue involves the reputation of the party. § 220. To What the Attention of the AVitness should Ibe Called. — It has been proper at all times to discredit a witness by proof of contradictory statements as to a material matter; but it could not be done until he had been cross-examined as to the supposed contradiction in such a manner as to direct his attention to the matter assumed. The rule which prescribes this condition rests on the principle of justice to the witness. The tendency of the evidence was to impeach his veracity, and common justice demands that before his credit is attacked he should have an opportunity to declare whether he made such statements to the person indicted, and to explain what he said, and what he intended and meant in saying it. When this opportunity has been afforded him, justice can de- mand in his behalf nothing more, and the reason of the rule is satisiied. If he neither admits nor denies the statement, can it be proven % The decisions of the English courts upon this question are con- flicting. If the matter is irrelevant, the proof of contradictory statements is certainly inadmissible; but if it is relevant, the weight of the English authorities favor their admission. 2 Phil. Ev. 960. This rule is sustained by American cases. Payne v. State, 60 Ala. 80; Dufresne v. Weise, 46 Wis. 290. It is competent for a party on the trial to prove that a witness, on the part of his adversary, has made oral statements inconsi .362 LAW OF EVIDENCE IN CIIIMINAL CASES. with evidence upon a material question given by such witness on the trial, for the purpose of impeaching the credibility of a wit- ness, and weakening the force of the evidence. But it is requisite that the party offering the impeaching evidence should first call the attention of the witness to the circumstances under which the statements were made, that he may have an opportunity of cor- recting the evidence given on the trial, or of explaining the ap- parent inconsistency between his evidence and his former state- ments. The reason of the rule applies as strongly to written as to oral statements made by the witness; and when his evidence is sought to be impeached by written statements, alleged to have been made by him, the writing should be first produced, so that he may have an opportunity for inspection and examination. And as the writ- ing is the best evidence of the statement made by the witness therein, questions as to the contents are not ordinarily admissible. Queen's Case, 2 Brod. & B. 2S7; Newcomb v. Griswold, 24 N. Y. 298, 2 Phil. Ev. 962; Gaffney v. People, 50 K Y. 416. § 230. California Code Provisions on the Subject. — The rules as to the impeachment as at present administered, find con- cise and appropriate expression in the recitals of the California Code : "A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony. A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but be- fore this can be done, the statements must be related to him. with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they musl be shown to the witness before any question is put to him concerning them. Whenever a writing is shown to a witness it may be inspected by the opposite party, and, if proved by the witness, must be read to the jury before his testimony is closed, or it cannot be read except on recalling the witness." Cal. Code Civ. True §§ 2051, 2052, 2054. See also MeDaniel v. Baca, 2 IMPEACHMENT OF WITNESSES. # 0G0 New York. People v. Marhham, 64 t Cal. 157, 49 Am. Hep. 700. In Illinois, where it is shown that the general charac- ter of the witness among his neighbors for truthfulness is bad, it is erroneous to let the impeaching witness answer, whether he would believe such witness upon oath. Eason v. Chapman, 21 111. 33. The knowledge of a witness's character must be derived from his general reputation. § 232. Importance of Impeaching Testimony.— When a wit- ness gives material evidence it is always important to ascertain •and discover how much weight, or reliance, can be placed upon his testimony. Whatever may weaken or tend to discredit his evidence is important and material and necessarily affects the determination of the issue. Shepard v. Barker, 36 N. Y. 517. If the testimony of the witness is unassailed by any discrediting •circumstances, then it will obviously be attended with greater 304 LAW OF EVIDENCE IN CRIMINAL CASES. effect in the determination of the controversy, than it would be,. if he should be shown to be a person unworthy of full credit. AYhatever may tend to sustain or support a witness, is, therefore, material to the issue, so far as it may increase the confidence to- be placed in his statement. And, likewise, whatever may tend to discredit him, and in that manner to reduce the confidence his evidence may deserve, will materially affect the determination of the issue in controversy. No special degree of materiality to cre- ate the crime of perjury has been defined or required, but all that can be insisted upon, is that the evidence itself shall appear to have had some material bearing in the determination of the case, and whatever may tend to the discredit of the witness, giving material evidence, must be regarded as within this rule. In Reg. v. Overton, 2 Moody, C. C. 203, it was held that everything was material that affects the credit of the witness, and that every ques- tion on cross-examination that goes to the credit of the witness is material. In ( 'om. v. Bonner, 97 Mass. 587, the same conclusion was reached. § 233. Partial Review of the Decisions. — The Tennessee supreme court held in St ory v. Saunders, 8 Humph. 600, that "a witness cannot be confirmed by proof that he has given the same account before, even though it has been proved that he has given a different account in order to impeach his veracity, for his mere declaration of the fact is not evidence;" although exceptions to this rule have been admitted. The question again came before this court in Possett v. Miller, 3 Sneed, 70, where error was assigned to the ruling of the court below, which ruling was as follows: "Where the credit of a wit- ness is attacked, upon the ground that he had made statements inconsistent with the statements he had made in court, testimony may be heard to show that at other times and on other occasions the witness had made statements consistent with his testimony given in court." It will be observed that this is a broad statement of the rule,, and is in conflict with the rule stated in Story Y.Saunders, supra, unless the facts of the case brought it within the exceptions of "special circumstances," but the facts are not given, and we can- not see whether the ''special circumstances" existed. In passing upon this ruling at the circuit court, Judge Caruthers said: "Upon this question there is a very great conflict in the authorities. In IMPEACUMENT OF WITNESSES. 3G5 1 Greenleaf on Evidence, § 469, such evidence is declared to be inadmissible unless where a design to misrepresent is charged upon the witness in consequence of his relation to the party or to the cause, in which case it seems it maybe proper to show that he made a similar statement before that relation existed." This is a statement of the "special circumstances" which would take the case out of the general rule as stated by Judge MeKinney in Story v. Saunders, swpra. Continuing, the court said: ""We think the case put by Mr. ■Greenleaf above is a proper one for the admission of previous con- sistent confirmatory statements, but would also allow it in all cases where the evidence given in court is impeached by proving former contradictory statements." He then holds that there was no error in the ruling of the court below. In Queener v. Morrow, 1 Coldw. 134, Judge MeKinney, after stating the rule as given by Greenleaf, says: "The case of Dos- sett v. Miller sanctions the principle that evidence of previous consistent statements is admissible in all cases where the testimony of the witness, given in court, is sought to be impeached by proof of contradictory statements." He then says: "The abstract prin- ciple announced we are not disposed to disturb," and proceeds to -dispose of the case on that basis, but limits the consistent state- ments of those made antecedent to the impeaching statements which they are intended to meet. In Third Nat. Bank v. Robinson, 1 Baxt. 484, Judge McFar- land quotes from and approves the cases of Dossett v. Miller and Queener v. Morrow, and approves the act of the court below in admitting proof of the consistent statements of the witness, although the facts did not bring the case within the exception of "special circumstances." In Ha/yes v. Cheatham, 6 Lea, 10, Judge Cooper refers to the cases of Dossett v. Miller, (J Keener v. Morrow, and Third Nat. Bank v. Robinson, swpra, and says the rule is that where it "is sought to destroy the credit of a witness by proof of contradictory representations, evidence of his having given the same account of the matters, at a time when no motive existed to misrepresent the facts, ougli' to be received, because it naturally tends to inspire in the sworn statement." The facts of that case brought it clearly within the exception of "special circumstance.-,." In Glass v.Bennett, 89 Tenn. 481, Chief Justice Turney quoted 366 LAW OF EVIDENCE IN CRIMINAL CASES. the rule as stated in Hayes v. Cheatham, supra, and held that proof of consistent statements was properly admitted. It did not appear in that case that the facts brought it within the excep- tion of "special circumstances," but it came within the broad rule laid d«»\vn in Dossett v. Miller, supra, and reaffirmed in Queener v. Morrow and Third Nat. Bank v. Robinson, supra. His con- clusion was that, "whatever may be the rule in other states, and whatever might be our view of the question as an original ques- tion, the rule in this state is, that previous consistent confirmatory statements, made before the impeaching statement, are admissible in all cases where the evidence given in court is impeached by proving former contradictory statements." In Bounds v. Schwab, 5 Sneed, 594, the impeaching statement was made under oath in an oral examination in another case, but. in reference to the same transaction. Afterwards the deposition of the witness was taken, and his testimony did not agree with, his previous testimony in the other case; but his attention was not called to his previous testimony so as to give him an opportunity to explain it. It was then sought to impeach his deposition by proving his previous contradictory testimony. It was held that this could not be done, because his attention had not been called to the previous testimony so as to give him an opportunity to- explain it. In Nelson v. State, 2 Swan, 259, the impeaching statement was contained in the testimony of the witness given before the com- mitting magistrate, and signed by the witness. It was held that this impeaching statement was not admissible to contradict the witness unless his attention had been called to it, and opportunity given him to explain it. In limn a, oad v. Dike, 42 Minn. 273, 18 Am. St. Eep. 506, the impeaching statement was contained in a deposition, and the same rule was applied in the Tennessee cases and a similar reasoning supports the rule that the minutes of the evidence given by wit- nesses on a preliminary examination cannot be used on the trial of the defendant to impeach such witnesses. State v. Adams, 78 Iowa, l".'± Nor can a witness be corroborated by proving that on other occasions he made statements conforming to his testi- mony, for such statements are but hearsay; nor can one who in- troduces a witness directly attack his credibility by proving facts- irrelevant to the issue. Madden v. State, 65 Miss. 176. IMPEACHMENT OF WJTNESSES. 36 T A defendant who testifies on his own behalf, on the trial of a. criminal case, may be impeached in the same manner as any other witness; but the jury should be instructed to consider impeaching testimony as affecting only his credibility as a witness, and not as impairing the presumption of his innocence. Peck v. State, 80 Tenn. 259. Judge Grover in Real v. People, 42 N". Y. 280, says : "A witness introduced by the accused, and who gave material testi- mony in his favor, was asked by the district attorney upon cross- examination, whether he had not been in the penitentiary, and how long he had been there. These questions were objected to by the counsel for the accused without a specific statement, calling attention to the fact of their being record evidence. The objec- tion was overruled, and the counsel excepted. The witness an- swered that he had, and stated the time, adding, that he was innocent of the crime. Waiving the question whether the ground was sufficiently stated, there can be no doubt that this testimony was material, and tended to prejudice the accused by impairing the credit of the witness, and if incompetent, the judgment should be reversed. The counsel now insists, that this point was decided in favor of the accused in J\ r ewco/uh v. Griswold, 24 jS". Y. 298, by this court. It was held in that case, that it was error to over- rule the objection of the opposite party to a question proposed upon the cross-examination of a witness, with a view to impair his credit, whether he had not been convicted of petit larceny, and the judgment was reversed upon this ground, the court holding, that if the fact was at all admissible, it could only be proved by the record. The same rule is laid down in volume 1 of Greenleaf on Evidence, § 457, where it is further added, that if the inquiry is confined in terms to the fact of his having been subjected to an ignominious punishment, or to imprisonment alone, it is made not for the purpose of showing that he was an innocent sufferer, but that he was guilty, and the only competent proof of his guilt is the record of his conviction. If the rule thus laid down by this author is correct, it is manifest that the exception in the present case was well taken. But I think that such is not the rule. It is well settled, that for the purpose of impairing the credit of a wit- ness, by evidence introduced by the opposite party, such evidence must go to his general character. That proof of specific acts of immorality is not competent, see authorities cited in 1 Greenl. Ev. 36S LAW OF EVIDENCE IN CRIMINAL CASES. § 4G1. Yet it Is held, that for the purpose of discrediting his testi- mony, the witness may be asked upon cross-examination, as to specific facts. 1 Greenl. Ev. § 456. This shows that upon a cross-examination of a witness, with a view of testing his credi- bility, inquiries are proper as to facts not competent to be proved in any other way. Such inquiries do not relate to the issue di- rectly upon trial, but relate only to the credibility of the witness. They are entirely collateral to the principal issue. As to the former the same strictness is not required when the evidence is confined to the cross-examination of the witness introduced by the opposite party. In such examination the presumption is strong, that the witness will protect his credibility as far, at least, as truth will warrant. All experience shows this to be so. It would be productive of great injustice often, if where a witness is produced, of whom the opposite party has never before heard, and who gives material testimony, and from some source, or from the manner and appearance of the witness, such party should learn that most of the life of the witness had been spent in jails, and other prisons for crimes, if this fact could not be proved by the witness himself, but could only be shown by records existing in distant counties, and perhaps states, which for the purposes of the trial are wholly inaccessible. No danger to the party intro- ducing the witness can result from this class of inquiries, while •their exclusion might in some cases, wholly defeat the ends of justice. My conclusion is, that a witness upon cross-examination may be asked whether he has been in jail, the penitentiary, or state prison or in any other place that would tend to impair his credibility, and how much of his life he has passed in such places. When the inquiry is confined as to whether he has been con- victed, and of what, a different rule may perhaps apply." § 234. When Party may Contradict His Own Witness — On this important subject, a recent case from Indiana may be regarded as authority. Upon a very careful investigation of the subject, the reas< >ning of Judge Elliott seems to accurately state the present pos- ture of the law in reference to this topic. In nearly every criminal prosecution, owing to the peculiar circumstances with which crime is committed and its perpetrators known, one of the first difficulties that confront the prosecution, is the character of the witnesses by which it is required to prove its case. It would grossly hinder the administration of justice, if the prosecuting attorney was ab- IMPEACHMENT OF WITNESSES. 369 solutely concluded by the statement of witnesses on the stand. Obviously, this would be a monstrous perversion of justice. The subject is regulated by statute in many jurisdictions, and the ex- position given it by the Indiana court, gives every reason that can support the rule. It is said : " It is no doubt true that the state may, in the proper case, contradict its witnesses by evidence of contradictory statements made out of court. ■ Con- way v. State, 118 Ind. 482. Justly limited and rightly applied, the statutory rule is a wise and salutary one, but if not properly limited and employed it may be very unjust and mischievous. If a party may call a witness, elicit from him only what is expected and what is not prejudicial, and then prove statements made out of court by the witness, great harm may be done the adverse part}-. It happens, as the decisions and the books show, that witnesses make careless or reckless statements out of court, which they will not make under oath, and such statements ought not to be brought out by the party who produces the witness unless the testimony* of the witness is prejudicial to him. It is, indeed, doubtful whether they can be brought out where there was no obligation on the party to call the witness, and the testimony was what the party knew, or had reason to believe, the witness would give. It is true that evidence of such statements is theoretically evidence affecting credibility only, and is not evidence of the facts embraced in the contradictory statements; but nevertheless, evidence of contradictory statements does often influence the jury. The limitation placed upon the statutory rule by the decisions is a wise one. That limitation is this : Where the witness gives no prejudicial testimony upon that point to which the contradic- tory statements relate, evidence of statements made out of court is not competent. Where the party calling the witness is sur- prised by his testimony, or where it is prejudicial then contradic- tory statements as to the point upon which the evidence is preju- dicial is competent, otherwise not. Hull v. State, 93 Ind. 128; Conway v. State, 118 Ind. 482, and cases cited; Mill< r v. Cook, 124 Ind. 101. In the case last cited it was rightly held that the contradictory statements must relate to the point upon which the evidence is prejudicial, and so we hold here." Elliott J. in Rhodes v. State, 128 Ind. 189. §235. Statement of the New York Rule. — The rule upon this subject of impeachment has frequently been made a matter 24 370 J. AW OF EVIDENCE IN CRIMINAL CASES. of consideration by the New York courts, and it is now well estab- lished that to entitle the party interrogating the witness by way of cross-examination, to introduce evidence to contradict his state- ments, the cross-examination must be directed to a material inquiry in the case, or to evidence establishing a hostile or unfriendly bias, against the party in the mind of the witnesses. I 'arp t nf, r v. Ward, 30 K. Y. 243, 245; Plato v. Reynolds, 27 K. Y. 586; First Baptist Church v. Brooklyn F. Ins. Co. 28 K T. 153; Chapman v. Brooks, 31 K Y. 75, 87; Stokes v. People, 53 X. Y. 1C.4, 175, 170; Schultz v. Third Ave. E. Co. 89 KY'.243. § 236. Inconsistent Statements may be Shown.— The party producing a witness is not allowed to impeach his credit by evi- dence of bad reputation, except when he is compelled to produce him by reason of the nature of the evidence sought, but he may contradict him by other evidence, and may also ask him whether he lias not made, at other times, statements inconsistent with his present testimony. Under all rules of reason he is not allowed to contradict his witness upon any particular and material fact. Norwood v. Ki nfield, 30 Cal. 393; Rockwood v. Poundstone, 38- 111. L99; Thorn v. Moore, 21 Iowa, 285; Burkhalter v. Edwards, If. Ga. 593, 60 Am. Dec. 744: Cronan v. Roberts, 65 Ga. 678; Gray v. Gray, 3 Litt. (Ky.) 465; Shelton v. Hampton. 28 X. C. i'!i'.: Warren v. Gabriel, 51 Ala. 235; Broom v. Osgood, 25 Me. 505; Bradford v. Bush, 10 Ala. 386; Hall v. Houghton, 37 Me. 411; Wolfe v. Hauver, 1 Gill, 84; Brolley v. Lapham, 13 Gray, 294; Olmstead v. Winsted Bank, 32 Conn. 278, 85 Am. Dec. 260; Brown v. Wood, 19 Mo. 475; Swamscot Mach. Co. v. Walker, 22 X. II. 4 r> 7 ; Seavy v. Dearborn, 19 K. H. 351; Skellinger v. Howell, 8 N. J. L. 383; Lawrence v. Barker, 5 Wend. 301; Wins- ton v. Moseley, 2 Stew. (Ala.) L37; Hunter v.Wetsell, 84 ZTST. Y- 549, 38 Am. Rep. 544; Hunt v. Fish, 4 Barb. .".24; Thompson v. Blanchard, 4 X. Y. 303; People v. Skeehan,43 Barb. 217; K< ut- n v. Parks, 2 Sandf. 60; Pickard v. Collins, 2)5 Barb. 444; Parsons v. Suydam, 3 E. D. Smith, 276; Boh v. Vincent, 12 Abb. Pr. 137; Bemis v. Kyle, 5 Abb. Pr. X. S. 232; 67* v. Huyler, 9 Jones & S. 190; Farr v. Thompson, Cheves, L. 37; Stockton v. Demuih, 7 Watts, 39; Hice v. Cox, 34 X. C. 315. So a party may contradict his own wdtness by evidence of state- ments made out of court. The only limitation is that the witness shall not be contradicted unless he has given testimony prejudicial IMPEACHMENT OF WITNESSES. 371 to the party by whom he was called. Judy v. Johnson, 16 I ml. 371; Hill v. Goode, 18 Ind. 207; JLdl v. State, 93 End. 128. In Hill v. Goode, supra, the court said, "that a party may prove previous statements of his own witness contradictory to those sworn to on the given trial." Other courts have so decided. Blackburn v. Com. 12 Bush, 181; Champ, v. Com. 2 Met. (Ky.) 17; Dear v. Knight, 1 Fost. & F. 433; Hemingway v. Garth, 51 Ala. 530; Cora, v. Donahoe, 133 Mass. 407; White v. State, 10 Tex. App. 381. A party cannot, after examining a witness, give in evidence his former testimony and declarations, ostensibly to discredit him, but in truth to operate an independent evidence. Smith v. Price, 8 Watts, 417. He is not at liberty to discredit his own witness by showing his former declarations on the same subject {Sanchez v. People, 22 !N\ Y. 117); though he may show the truth of the facts by other witnesses. The fact that the other side has also examined the witness in chief does not change the rule. Ellicvtt v. Pearl, 35 U. S. 10 Pet. 412, 9 L. ed. 475. The state cannot impeach her own witness. Quinn v. State, 14 Ind. 589. But it has been held in North Carolina that the attorney gen- eral may produce evidence to discredit a witness for the common- wealth. State v. Norris, 2 1ST. C. 438. But see Brown- s Cases, 3 City Hall Rec. 151; Queen v. State, 5 Harr. & J. 232; 1 Koscoe, Crim. Ev. 159. Texas Code of Criminal Procedure, article 755, provides that " the rule that the party introducing the witness shall not attack his testimony is so far modified that any party, when facts stated by the wdtness are injurious to his cause, may attack his testimony in any manner, except by proving his bad character;" but before this rule can be applied, the witness must have stated some fact in evidence which was injurious to the party in whose behalf he was testifying; and it is not sufficient that he merely made a, state- ment different from that which the party hud reason to and did believe he would make. Bennett v. State, 24 Tex. App. 7-'). The rule that a party cannot discredit his own witness by prov- ing that he had made contradictory statements at other times, does not apply to those eases where the party is under the neces- sity of calling the subscribing witness to an instrument. Dennett 372 LAW OF EVIDENCE IN CRIMINAL CASES. v. Bow, 17 Me. 10; WJiitmom v. Morey, 63 K Ii. 448; 1 Roscoe, Orim. Ev. 160; Best, Ev. (Chamberlayne's ed.) § 644. § 237. Discrediting Party's own Witness on Ground of Surprise. — A party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him in respect to declarations and statements previously made by him, which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testi- mony or explain his apparent inconsistency, and for such purpose his previous declarations may be repeated to him, and lie may be called upon to say whether they were made by him. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses. Hurley v. /State, 4L. R. A. 161,46 Ohio St. 320. In the case last cited Mr. Justice Williams collates many valu- able authorities in the course of his opinion and subjects them to analysis in the following language: "In the case of Com. v. Welsh, 4 Gray, 535. it is held that, 'A witness who has testified in chief that he does not know certain facts, cannot, although he shows a disposition to conceal what he knows, be asked by the party call- ing him whether he did not on a former occasion swear to his knowledge of those facts.' In the course of the opinion, Shaw, Ch. >/.. said: 'The evidence of what the witness testified before the grand jury ought not to have been received. It bore upon no question pertinent to the issue. ... It could only be to disparage the witness, and show him unworthy of credit with the jury, which was inadmissible.' The same rule was followed in the case of People v. Jacobs, 49 Cal. 3S4. On the trial of a prose- cut ion for rape a witness was called by the prosecution to prove threats by the prisoner. The witness testified the prisoner made no threats, and the prosecutor was then permitted to call a witness who testified that in a conversation with him the former witness stated the prisoner had made threats. For the admission of this evidence the judgment was reversed. "In Melluish v. Collier, 14 Jur. 621, 15 Q. B. 878, it is held that ' where a witness gives evidence adverse to the party who calls him. he may be asked whether he has not given a different account of the matter in question before the trial, but if the wit- ness denies it, the person to whom he gave that account cannot IMPEACHMENT OF WITNESSES. 373 be called to contradict him;' and 'Where a witness gives evidence of a fact adverse to the party who calls him, other witnesses may be called to disprove the fact, if it be relevant to the issue in the cause.' See also Holdsworth v. Dartmouth, 2 Mood. & K. 153; Allay v. Hutchings, 2 Mood. & K. 358, note; Winter v. Butt, 2 Mood. & R. 357. " This is the doctrine maintained by a long line of American cases, among them the following: Thompson v. JSlanchard, 4 X. T. 311; Pollock v. Pollock, 71 K Y. 137; Coulter v. American Merchants U. Exp. Co. 56 K Y. 58S; Nichols v. White, 85 ]N r . Y. 531; Gadsby v. Dyer, 91 N. C. 312; Becker v. Koch, 101 K Y. 394; Cox v. Eayres, 55 Yt. 21; Bauskett v. Keitt, 22 S. C. 187; BurkJialter Y.Edwards, 16 Ga.593, 60 Am. Dec. 711; Bal- timore <& 0. R. Co. v. State, 41 Md. 268; Bullurd v. Pearsall, 53 K Y. 230; Stearns v. Merchants Bank of Cleveland, 53 Pa. 490; Queen v. State, 5 liar. & J. 232; Adams v. Wheeler, 97 Mass. 67. " Statutes, similar in their provisions to the English Common Law Procedure Act, have been adopted by Massachusetts, Ken- tucky, Georgia, and some of the other states. The enactment of such statutes is, itself, a recognition of the necessity of a resort to legislation to accomplish the change in the rule thereby effected, and has been so regarded by the courts of the states where they have been adopted." Proof that a witness had made material false statements, which are relied on as proving him unworthy of credit, will not author- ize the party calling him to introduce evidence of his general rep- utation for truth. Crown v. Mooers, 6 Gray, 451; Jluscoe, Crim. Ev. 160. A party may prove the previous contradictory declarations of a witness whom he has called to the stand, when it is established that he was surprised at his testimony, and was not guilty of col- lusion or bad faith, and that the witness was adverse to him (Ilurlburt v. Bellows, 50 N. H. 105; Whitman v. Morey, 63 N. H. 448; Craig v. Grant, 6 Mich. 453; Campbell v. State, 23 Ala. 77; Corn. v. Starkweather, 10 Cusli. 60; Stearns v. Merchants Bank of Cleveland, supra; People v. Safford, 5 Denio, 112; Coulter v . American Merchants I . Exp. ( '<>. supra ; People v. Jacobs, 49 Cal. 384; Dunn v. Dunnaher, 87 Mo. 597; Hunt v. Fish, 4 Barb. 324; Burkhalter v. Edwards, supra) or where it 374 LAW OF EVIDENCE IN CRIMINAL CASES. is shown to the satisfaction of the court that he lias been deceived by the fraud or artifice of such witness; and even then the foun- dation must first be laid for such evidence by calling the attention of the witness to the time, place and person before whom such supposed contradictory declarations were made, and affording him opportunity for explanation. Dimlap v. Richardson, 63 Miss. 447. § 238. Party may Impeach a Witness lie is Compelled to Call. There is quite an array of authority for the proposition that where a party is compelled to call a certain witness he may both contradict and discredit him. Sho?*ey v. Hussey, 32 Me. 579; Cox v. Eayres, 55 Vt. 24. But he cannot sustain his own witness by proving by an inde- pendent witness he made the same statement at a prior time or as to an independent fact testified to by such witness. Smithy. Stickney, 17 Barb. 480; People v. Finnegan, 1 Park. Crim. Rep. 147; Uerrick v. Smith, 13 Hun, 448; People v. Rugg, 21 K Y. Week. Dig. 85, 34 Hun, 032, mem.; affirmed without discussing that point in 98 K Y. 537, 552, 3 K Y. Crim. Rep. 172; Stolp v. Blair, 68 111. 541; Childs v. State, 55 Ala. 25; Snyder v. Com, 85 Pa. 519; Webb v. State, 29 Ohio St. 351. The Kentucky statute on the subject is contained in section 660 of the Civil Code of Procedure, which is also made applicable to criminal cases. It provides that "the party producing a witness may contradict him by showing that he has made statements dif- ferent from his testimony." In the case of Champ v. Com. 2 Met. (Ky.) 17, it was said that prior to the adoption of the code, a party who was surprised by the testimony of his own witness, was allowed to contradict him, only by proving that the facts stated in evidence were different. By the code, as already shown, an additional means of contradic- tion is allowed — it may be shown that the witness has made state- ment different from his present testimony.' In Brooks v. Weeks, 21 Mass. 433, Endicott, J., in commenting upon the Massachusetts statute says: "Before its passage the wit- ness could not be directly contradicted. The object of the statute is .-imply to allow the party to impeach the credibility of his wit- in-.- by showing in the manner pointed out, that he has made statements inconsistent with his testimony." And in Ryersonv. Abmgton, 102 Mass. 526, Gray, J., after IMPEACHMENT OF WITNESSES. 375 quoting the statute proceeds as follows : "So great a change in the rules of evidence, giving so extensive a power to a party to introduce proof in contradiction and disparagement of a witness put upon the stand by himself, uncontrolled by the discretion of the judge before whom the trial is had, must be kept strictly within the bounds of the statute." The mere failure on the part of a witness to testify as expected by the party calling him will not enable said party to show other- wise alleged statements made by the witness or others tending to prove the case. People v. Jacob*, 49 Cal. 384; 1 Roscoe, Crim. Ev. 159. § 239. Specific Acts of Immorality cannot he Shown. — In Abbott's Trial Brief of Criminal Causes, § 473, we find the following : ''A witness who has testified to the good character of the accused may be asked, on s-examination, if he has not heard of a specified charge against the accused," — citing Ingram v. State, 67 Ala. 67, which was a murder case wherein it was held: "The shadings, as well as the brighter hues, are to be considered in making up the estimate of character and reputation, and, when a witness has testified that he knew the character of the accused, for peace and quietude, and that it was good, it is not error to allow him to be asked, on cross-examination, if he had not been informed that the defendant had 'killed a man in the statu of Georgia,' and his answer was admissible in evidence." 12<-. New York- Criminal Code Provisions Stated. 24*;. Statement of the English and California Hide. 247. Examination of Witnesses Conditionally for the Accused. £ 243. Only Admitted by Force of Statute.— In criminal cases in the United States, it has been held that depositions can- not be used without the consent of the defendant, and the Con- stitution of the United States declares that the accused shall enjoy the right to be confronted with the witnesses against him, and this provision has been incorporated in the constitutions of most of the states, or recognized as statutory law. In some states pro- vision is made for the taking of depositions by the accused. Greenleaf's opinion is. that no deposition is admissible by force of English or American statutes, unless taken wholly in the prison- er"- presence, in order to afford him the opportunity to eross- examine the witnesses, under the constitutional provisions before mentioned; nor even then, except as secondary evidence, the deponent being dead, or out of the jurisdiction, or to impeach his testimony given orally at the trial. And it is stated, as a general rule, that depositions are in no case admissible in criminal pro- ceedings, unless by force of express statutes, or possibly by con- sent of the prisoner in open court. Even in the case of informa- tions before a justice of the peace, numerous authorities hold that they should, be taken in the presence of the prisoner. Weeks, Depositions, § 557, citing 3 Greenl. Ev. § 11: McLane v. Stated (ia. 335; Rex v. Thatcher, T. Jones, •">•'!: :! T. R. 722; Sills v. Brown, 9 Car. & P. '''"1: Hex v. Grady, 7 Car. A' P. 650; Rex x. Coveney, 7 Car. & P. 667; Bostick v. State, 3 Humph. 344; Stat, v. Bowen, 4 McCord, L. -i:>A: Stat, v . Valentine, 29 X. C. 225; Dominges v. State, 7 Smedes A M. 17."»: Rex v. Paine, i> 379 380 LAW OF EVIDENCE IN CRIMINAL CASES. Mod. 163; Bex v. FrisweU, 3 T. R. 722; Bex v. Errington, 2 Lew. C. C. 142; Rex v. Woodcock, 1 East, P. C. 356; Bex v. Smith, 2 Stork. 208. But see Beg. v. Walsh, 5 Cox, C. C. 115; U. S. Const. 6th Amend.; Ohio Const, art. 1, § 10; Conn. Const, art. l r §9. There is no constitutional inhibition against the state allowing defendants in criminal cases to take and use the depositions of witnesses in their behalf. The constitution entitles the accused, in criminal and penal cases, to meet his accusers face to face, and to be confronted with the witnesses against him. The state, there- fore, cannot authorize the taking and using of depositions of wit- nesses against him, but he may use the depositions of witnesses in his behalf under any state of case that the legislature may allow. Kaelin v. Com. 84 Ivy. 354. In criminal prosecutions in this country depositions are rarely employed; but where the accused has had an opportunity to cross- examine the witness whose deposition it is thought to introduce,, he has no reason to complain that the constitutional guaranty has been violated. Such instance arises where, in a former trial, the accused was confronted with the witness, or on preliminary hear- ings before a coroner or committing magistrate. And it seems that notes taken on such occasion, are admissible in evidence where the witness has since died or is beyond the jurisdiction of the court. See Brown v. Com. 73 Pa." 321, 13 Am. Rep. 740;. State v. Chambers, 43 La. Ann. 1108. The right to a deposition in criminal cases is exclusively that of the accused, and by order of the court they may be taken in the manner prescribed for taking depositions in civil cases after due- notice to the district attorney. Tennessee Code, § 6223. If the witness be a prisoner, an order for his examination in the prison upon deposition, or for his temporary removal and produc- tion, before a court or officer, for the purpose of being orally examined, may be made as follows: 1. By the court or judge thereof in which the action, suit, or proceeding is pending, unless it be a court of a justice of the peace; 2. By any judge of a court of record, when the action, suit, or proceeding is pending in a justice's court, or when the witness's- deposition, affidavit, or oral examination is required before a judge or other person out of court; DEPOSITIONS IN CRIMINAL CASES. 381 3. Such order shall only be made upon the affidavit of the party ■desiring the order, or some one on his behalf, showing the nature of the action, suit, or proceeding, the testimony expected from the witness, and its materiality; 4. If the witness be imprisoned in the county where the action, suit, or proceeding is pending, and for a cause other than a sen- tence for felony, his production may be required; in all other •cases, his examination shall be taken by deposition. Hill, Ann. Law of Oregon, § 801. Depositions can only be admitted in criminal cases under local .statute, and in submission to the constitutional guarantees as to the personal examination of witnesses. Whart. Crim. Ev. § 306; People v. Murphy, 1 X. Y. Crim. Rep. 102; People v. Gannon. 61 Cal. 176. Under statutes or by consent of the prosecuting officer, evidence may be taken for the defendant by ordinary deposition. Bishop, Crim. Proc. (3d ed.) § 1206. See People v. Bestell, 3 Hill 289. But in order to render such a deposition competent evidence, the examination must in general be in the presence of the accused, so that he may know the precise words which the witness uses, and observe throughout his manner of testifying. If desired by the accused, he has a right that his counsel shall be present during the examination. A reasonable time after the arrest should be allowed for the purpose of employing counsel, where the accused requests it, and if the magistrate refuse this, the deposition will not be evidence. The answers of the witness should be on oath, .and hence, instead of taking the examination first and then swear- ing him to the truth of the statement, he should be sworn before the examination commences. The deposition should be taken as nearly as possible in the exact words of the witness. People v. Mestell, supra. It is essential that the accused should have a full and fair oppor- tunity of cross-examining; and if this be denied him, the deposi- tion will not be competent evidence. The deposition will be invalid, moreover, if the oath administered to the witness do not extend to his answers to questions put; e. (j., where it is merely to the truth of a statement previously drawn up. People v. Ji'estell, sup)ra. According to the provisions of the California renal ('ode, the right to take the deposition of a witness on behalf of the people, 382 LAW OF EVIDENCE IN CRIMINAL CASES. in a criminal case, arises out of the fact that the witness is unable to procure sureties for his appearance on the trial; and that fact must be satisfactorily established by the examination on oath of the witness himself, or of some other person. When the fact has been judicially ascertained, the right to take the deposition of the witness may he put in motion. But the examination of the wit- ness must be had in the presence of the defendant, or after due notice to him, and "must be conducted in the same manner as the examination of a witness beforea committing magistrate is required by the penal code to be conducted." Taking the testimony of a witness on behalf of the people in a criminal case by deposition,, is an exception to the rule, which entitles the defendant in a crim- inal action to be confronted with the witnesses against him in the presence of the court, and every substantial requirement of the law which authorizes it must be observed. Any real departure from the course prescribed for the taking of the deposition ren- ders the deposition itself objectionable. Peoples. Mitchell, Q4: Cal. 85; People v. Morine, 51 Cal. 575; Williams v. Chadbourne, 6 Cal. 559; /'■ opli v. < 'hung Ah Chue, 57 Cal. 567; Am. & Eng. Enc. Law, title Depositions, subd. 15, note. "In all criminal prosecutions the accused . . . has a right to be confronted by the witness against him." The accused was confronted by the witness on the former trial, and he had an op- portunity of making a cross-examination, that satisfies the require- ments of the statutes. The right secured to the accused, it is to be observed, is. "to be confronted with the witnesses against him." This language does not require that the accused shall, in all cases, be confronted with the witnesses against him upon a pending trial of the indictment. The court have held that the statute is satisfied, in cases of necessity, if the accused has been once con- fronted by the witness against him in any stage of the proceed- ings upon the same accusation and has had an opportunity of a cross-examination by himself or by counsel in his behalf. Peoplt \. N< wman, 5 Hill, 295. See Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740. This provision has no application to criminal trials in the state courts for a violation of state laws. This right secured to the accused is limited in its application to citizens of the United States on trial in the Federal courts charged with a violation of the Constitution of the United States or of the laws of Conoress.. DEPOSITIONS IN CRIMINAL CASK-. 3S3 This clause of the Constitution lias been frequently and deliber- ately interpreted by the Federal courts, and the decisions are so full, emphatic and conclusive that it is only necessary to cite the cases where the rule as stated may be found. Barron v. Balti- more, 32 (/. S. 7 Pet. 247, 8 L. ed. 674; Withers v. Buckley, 61 U. S. 20 How. 84. 15 L. ed. 816; United States v. Cruikshank, 92 T. S. :,42, 23 L. ed. 588; Walker v. Sauvinet, 92 T. S. 90, 23 L. ed. 678; Peoph v. P< nhollow, 5 X. Y. Crim. Rep. 41. People v. Williams, 35 nun. 516, 3 X. Y. Crim. Rep. 03. § 244. Exposition of this Subject by New York Court of Appeals. — A very recent decision by the New York court of appeals has contributed to place this vexed question of depositions taken in criminal cases beyond the reach of further controversy. The functions this species of evidence discharges in the trial of civil causes, is well recognized and perfectly understood, but, the fluctuation of the authorities upon the admissibility of depositions, in criminal causes, has led to discordant rulings, and considerable misapprehension. The importance of the topic, induces the fol- lowing somewhat extended extract from the opinion from Mr. Justia Karl in People v. Fish, 125 X. Y. 13(3: "It is clearly settled by numerous adjudications that the right of the defendant to be confronted with the witnesses within the meaning of the Federal Constitution and the Bill of Rights was not denied to him. The evidence of the witness was taken in his presence where he had the opportunity to cross-examine him. and where he did in fact cross-examine him, and thus he had all the protection that the Bill of Rights and the Constitution were in- tended to secure him. This constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial, but to protect him against ex parte affidavits and depositions taken in his ab- sence, as was frequently the practice in England at an early day. It was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial, if at some stage of his case he could be confronted with and cross-examine the witnesses to be used against him. in Cooley's Constitutional Limitations (5th ed.) 389, the learned author, speaking of this constitutional provision, .-ays: ' If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there was a 384 LAW OF EVIDENCE IN CRIMINAL CASES. former trial on which he was sworn, it seems allowable to. make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to tes- tify, or has been summoned, but appears to have been kept away by the opposite party.' And for this he cites numerous authori- ties." The admission of this grade of evidence does not offend against the well known amendment of the Constitution of the United States, which declares that in criminal prosecutions, the accused, shall be confronted with the witnesses against him, even the lit- eral construction of this article does not require that the accused should be so confronted upon the trial of the indictment itself, and when the effect of the same language has been considered by the courts, it has been held to be a compliance with what has in this manner been required, that at some stage in the progress of the criminal proceeding the accused should be confronted with the witnesses and afforded the opportunity for their cross-exami- nation, and when he has been so confronted and that opportunity has been afforded to him, that the evidence may afterwards, under certain circumstances certainly, be read upon the trial of an indictment subsequently presented against him. The construction upon this subject has been generally stated to be, "if the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there was a forme]' trial on which he was sworn, it seems allow- able to make use of his deposition, or of the minutes of his exam- ination, if the witness has since deceased, or is insane, or sick and unable to testify." Cooley, Const. Lim. (3d ed.) 318. And that the evidence of a deceased witness, in this manner taken either upon a preceding trial or before the committing magistrate, may be read upon the trial, has been sanctioned by the following authorities: Crary v. Sjorague, 12 Wend. 41, 27 Am. Dec. 110; Peoj>l>' v. Newman, 5 Hill, 295; State v. Valentine, 29 N. C. 225; Summons v. State, 5 Ohio St. 325; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; Com. v. Richards, 18 Pick. 437. It is manifest from the authorities permitting the deposition or evidence of a deceased witness to be read upon the trial of the accused, that it has not been deemed essential that he should be confronted by the witness against him upon the trial itself, but if the evidence be taken in the course of the proceeding in his DEPOSITIONS IN CRIMINAL CASES. 385 presence, and with the right or privilege of cross-examination secured to him, that will be sufficient to allow the deposition to he read in case of the decease of the witness making it, between the time when it may be taken and the time of the trial. And if this article of the Constitution should be held to be applicable to the case, it would not, therefore, exclude the deposition received in evidence on the trial of the defendant. a. Extreme Importance of the Right.— This subject of depositions received in criminal cases, is freighted with grave •constitutional rights. The organic law has guaranteed a well recognized prerogative, the manifest justice of which it was the just pride of the civil law to have established. That law pro- vides that no person shall be convicted of a heinous criminal offense — pilloried at the bar of opinion, deprived of his fair name and reputation, despoiled of his property, outraged in every sensi- bility by any law, which admits in evidence the irresponsible ex -parte allegation of his most virulent traducers, under the guise of a deposition. The metropolitan bar has produced no abler judge than James E. Brady and his legal fame is indissolubly linked with a superb protest in a way of a dissenting opinion against this whole enormity of criminal deposition, which we reproduce in connection with this immediate topic. That it is an incisive comment upon the abuses that infest this rule all will admit, and that it is a logical statement of an elementary propo- sition in the rules of governing natural right all will admit. b. Views of Mr. Justice Brady. — "Under the law in a crim- inal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or he may appear and defend in person and with counsel, and 3. To produce wit- nesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the tes- timony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross- examined, or had an opportunity to cross-examine the witness, . . the deposition of the witness may be read upon its being satisfactorily shown to the court that he is dead or insane, or can- not, with due diligence, be found in the state. "The preliminary examination is in no sense a trial by a jury and 25 3S6 LAW OF EVIDENCE IN CRIMINAL CASES. is not designed for that purpose. It is intended to protect the- accused from further prosecution if the magistrate is satisfied that none should be had, thus enabling the accused to have a summary hearing before the magistrate and protecting him from a series of burdens which, if innocent, he would otherwise unnecessarily have- to bear. It is not exalted in dignity because the right to cross- examine is given in the statute. This is not new in such exami- nations. The right to cross-examine has always existed. The fatal objection to the use of the deposition is that the accused is not confronted at the trial before the jury impaneled to try him with the witnesses,, as required by the constitution and bill of rights. He is confronted with him before the magistrate, who is really only setting the criminal machinery in motion, having no power to pronounce a judgment of which punishment may be predicated. This is not a compliance with the fundamental law and should not be tolerated. There are many reasons why it. should be regarded as a dangerous procedure. There are many cases in which the accused, upon such notice as his arrest gives, would, even if innocent, be entirely unprepared to ask any ques- tions arising from many causes which might exist and which the imagination can readily supply. " The charge is made by a stranger, and having made it departs and cannot be found. He may be actuated by malice or mistaken as to the identity of the transgressor if a crime has been commit- ted; but his testimony is to be received if he cannot be found,, and accepted as true without the test of a single element which dis- tinguishes a trial from a mere preliminary examination, and this because the accused has been advised that he may have the privi- lege of cross-examination. What privilege? The cross-examina- tion of a witness is an art which all lawyers do not possess, while with some it is a power which assists materially in the revelations of the truth and prevents the commission of great wrongs. It is an ally of justice in its administration, and as important if not more important than any other element of jurisprudence. This was well understood by the framers of the constitution, and was, no doubt, one of the considerations which induced the protection guaranteed by the right to be confronted w T ith the witness. It is true that in some states, and it may be said now in this state, the eviilence of a deceased witness on a former trial may be read on proof of his death. See State v. Fitzgerald, 63 Iowa, 268; Cora.. DEPOSITIONS IN CRIMINAL CASES. 387 v. Richards, 18 Pick. 434; Sullivan v. State, 6 Tex. App. 319; State v. Hooker, 17 Vt. 658; Kean v. Com. 10 Bush, 190, 19 Am. Kep. 63; Walston v. Com. 16 B. Mon. 15; Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; Roberts v. State, 68 Ala. 515; Brown v. Com. 73 Pa. 321, 13 Am. Kep. 740. But there a trial has been had and all the rights of such a proceeding secured. The accused has been confronted with the witnesses and has had the opportunity to sift their evidence and assail them if he could do so. " True, also, it has been held in other states (see Com. v. Rich- ards, and State v. Fitzgerald, supra), that evidence was received to show what a deceased witness stated on a preliminary examin- ation, and although a constitutional barrier existed similar to ours. The extent to which the authorities in this state have proceeded has only permitted the evidence of a deceased witness upon a former trial of the same indictment to be used. See People v. Newman, 5 Hill, 295; Crary v. Sprague, 12 Wend. 41, 27 Am. Dec. 110. And in the first of these cases it was expressly held that the public prosecutor could not use the testimony given by a witness on a former trial, though he be absent from the state. And it was suggested in that case that the rule which allowed the evidence of a deceased witness to be admitted in civil cases should not be applied to criminal proceedings, and the judgment in the ease of Finn v. Com. 5 Rand. (Va.) 701, was approved, in which Brockenbrough, J., said that even the death of the witness could not in a criminal case be allowed as a reason for receiving his former testimony. "Justice Kelson said, in Crary v. Sprague, that the testimony of a witness could not be received unless he were dead and his death were affirmatively shown, and proceeded further to say: ' Even diligent inquiry without being able to find the witness is not suffi- cient, though it is obvious there can scarcely be a shade of differ- ence between the two cases (death and absence) either in principle or hardship.' " It is true, as remarked by Justice Kelson, that there is scarcely a shade of difference between the principle upon which evidence of a deceased witness is admitted, and that of an absent witness whose presence cannot be secured by diligent search. But it is quite apparent that in allowing the evidence of a deceased wit- ness upon a former trial, where the right of examination was 388 LAW OF EVIDENCE IN CRIMINAL CASES. secured and in the presence of the jury, the inroad upon the constitutional protection was carried as far as it should be. It ought not to be extended to the evidence given upon a prelimi- nary examination of a witness not dead, but not able to be found. People v. ]\ T ewman, supra, sustains this proposition and it should be preserved. There is a wide distinction between a preliminary proceeding and a trial, and the cases to which reference has been made form no precedent for the section under consideration. Its passage is regarded as having been ill-advised and improvident, and its repudiation as a part of the law of the state should be declared at once." Judge Cooley, whose pre-eminence as a jurist and logician has long since passed beyond the domain of cavil or dispute, sustains the position of Judge Brady, in language that admits of no mis- conception from the sixth edition of his incomparable work on Constitutional Limitations, at page 387 I excerpt the following: "The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him; and if any of them be absent from the common- wealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances, but they are far from numerous. If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, oris insane, or sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party. So, also, if a person is on trial for homicide, the dec- larations of the party whom he is charged with having killed, if made under the solemnity of a conviction that he was at the point of death, and relating to matters of fact concerning the homicide, which passed under his own observation, may be given in evidence against the accused; the condition of the party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most pow- DEPOSITIONS IN CRIMINAL CASES. 389 erful considerations to tell the truth. ]STot that such evidence is of very conclusive character; it is not always easy for the hearer to determine how much of the declaration related to what was seen and positively known, and how much was surmise and suspicion only; but it is admissible from the necessity of the case, and the jury must judge of the weight to be attached to it." § 245. New York Criminal Code Provisions Stated. — While disclaiming any attempt to emphasize the provisions of the New York statutes, or to extend to them any extra-territorial effect I can- not ignore the fact that they have been found wonderfully effective in the administration of criminal justice, and have satisfactorily met the test imposed by many years of practical working. They are reproduced in this connection both as affording a practical exposition of the subject under review, and in the hope that their manifest merits may lead to their adoption in other jurisdictions especially in those whose criminal jurisprudence is conspicuously defective in that there is an utter failure to efficiently provide for the rights of one under criminal indictment who wishes to secure the testimony of a material witness without the state. Chap. 3, " § 620. "When a defendant has been held to answer a charge of a crime, he may, either before or after indictment, have witnesses examined conditionally on his behalf." " § 621. When a material witness for the defendant is about to leave the state, or is so sick or infirm as to afford reason a 1 >le grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally." "§ 622. The application must be made upon the affidavit showing : "1. The nature of the crime charged; "2. The state of the proceedings in the action; "3. The name and residence of the witness, and that his testi- mony is material to the defense of the action; and, "4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial. * •;:- * * * # * * -"• # "§ 627. On proof being furnished to the officer before whom the examination is appointed, of the service upon the district attorney, 390 LAW OF EVIDENCE IN CRIMINAL CASES. of a copy of the order, and of the affidavit on which it was granted, if no counsel appear on the part of the people, the examination must proceed." "§ 628. If the district attorney or other counsel appear on the part of the people, and it be shown to the satisfaction of the court or officer, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed." "§ 629. The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information, as prescribed in section 200." "§ 630. The deposition must be retained by the officer taking it, and filed by him in the office of the clerk of the court without unnecessary delay." "§ 631. The deposition, or certified copy thereof, may be read in evidence by either party on trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sick- ness or infirmity, or of his continued absence from the state." "§ 632. The deposition cannot, however, be read if it appear that the copy of the order and of the affidavit on which it was founded was not served on the district attorney, as directed, or that the examination was in any respect unfair or not conducted as pre- scribed in this chapter." "§ 633. Upon the reading of the deposition in evidence, the same objection may be taken to a question or answer contained therein as if the witness had been examined orally in court." "§ 634. The attendance of the witness may be enforced, by a subpcena subscribed by the officer, or issued under the seal of the court." "§ 635. Disobedience to the subpoana, or a refusal to be sworn or to testify, may be punished by the court or officer, as prescribed in section 619." Chap. 4. "§ 636. When an issue of fact is joined upon an indict- ment, the defendant may have any material witness residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise." "S 637. "When a material witness for the defendant resides out DEPOSITIONS IN CRIMINAL CASES. 391 •of the state, the defendant may apply for an order that the wit- ness be examined on a commission." "§ 638. A commission is a process issued under the seal of the court and the signature of the clerk, directed to one or more per- sons, designated as commissioners, authorizing them to examine the witness upon oath, on interrogatories annexed thereto, and to take and return the deposition of the witness, according to the •directions given with the commission." "§ 630. The application must be made upon affidavit, showing : "1. The nature of the crime charged ; "2. The state of the proceedings in the action, and that issue of fact has been joined therein; "3. The name of the witness, and that his testimony is material to the defense of the action; "4. That the witness resides out of the state." "§ 640. The application, if made during the term, must be made to the court." "§ 641. If not made during the term, the application may be made as follows : "1. "When the indictment is pending in a court of oyer and terminer, or in a court of sessions, except in the city and county of New York, to a judge of the supreme court or to the county judge; "2. When the indictment is pending in the court of general ses- sions in the city and county of New York, to the recorder or city judge or judge of general sessions, or to one of the judges of the court of common pleas of that city; "3. When the indictment is pending in a city court, to the re- corder or judge of the court in which it is pending." "§ 642. If the application be made to the court, it may be without notice to the district attorney, unless the court direct notice to be given, in which case it must prescribe the manner of giving the same. If made to one of the officers mentioned in the last sec- tion, the application must be upon five days' notice: to the district attorney served, with a copy of the allidavit upon which it is founded." "§ 643. If the court or officer to whom the application is made be satisfied that the witness resides out of the stale, and thai his examination is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, ;',',l2 LAW OF EVIDENCE I\ CRIMINAL CASES. and that the people be permitted to join in the commission, and to examine witnesses in support of the indictment." "§ 644. [f the application for a commission be granted, the court or judge must insert in the order therefor, a direction that the trial of the indictment be stayed for a specified time, reasonably suffr cienl for the execution and return of the commission." "§•645. When the commission is ordered, the defendant must serve up.,]] the district attorney, and the district attorney, if he in- tend to join in the commission and examine witnesses in support of the indictment, must serve upon the defendant or his counsel, a. copy of the interrogatories to be annexed thereto, with a notice to two days of their settlement, before an officer who might have granted the order out of term, as provided in section 641." "§ 646. The district attorney, and the defendant, may, in the same manner, serve cross-interrogatories, to be annexed to the commission, with the like notice of the settlement thereof." "§ 047. In the interrogatories, either party may insert any ques- tion pertinent to the issue." ••. 648. Upon the settlement of the interrogatories, the judge must expunge every question not pertinent to the issue, and modify the questions, so as to conform them to the rules of evidence, and. when settled, must indorse upon them his allowance, and annex to them the commission." "§ 640. Unless the parties otherwise consent, by an indorsement upon the commission, the officer must indorse thereon a direction, as to the manner in which it must be returned, and may, in his discre- tion, direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the indictment is pending, desig- nating his name and the place where his office is kept." •■; ''>.~.i>. The commissioners, or any one of them, unless otherwise specially directed, may execute the commission as follows : "1. They musl publicly administer an oath to the witness, that his answers given to the interrogatories shall be the truth, the whole truth, and nothing but the truth; "2. They must cause the examination of the witness to be re- duced to writing; •••".. They must write the answers of the witness, as nearly as- possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it, until it is made conformable to what he declares the truth; DEPOSITIONS IN CRIMINAL CASES. 393 "4. If the witness decline answering a question, that fact, with the reason for which he declines answering it, as he gives it, must be stated; "5. If papers or documents are produced before them, and proved by the witness, they must be annexed to his deposition, and be subscribed by the witness and certified by the commissioners; "6. The commissioners must subscribe their names to each' sheet of the deposition, and annex the deposition, with the papers or documents proved by the witness, to the commission, and must close it up under seal and address it, as directed thereon; "7. If there be a direction on the commission, to return it by mail, the commissioners must immediately deposit it in the near- est postoffice. If any other direction be made, by the written consent of the parties, or by the officer, on the commission, as to its return, they must comply with the direction." "§ 651. A copy of the last section must be annexed to the com- mission." "§ 652. If the commissi* >n and return be delivered by the commis- sioners to an agent, he must deliver it to the clerk to whom it is directed, or to a judge of the court in which the indictment is pending, by whom it may be received and opened, upon the affi- davit of the agent that he received it from the hands of one of the commissioners, and that it has not been opened or altered since he received it."' "§ 653. If the agent be dead, or from sickness or other casualty. unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent, that the agent i> dead, or from sickness or other casualty, unable to deliver it, that it has not I teen opened or altered since the person making the affidavit received it, and that he believes it has not been opened or altered since it came from the hands of the commissioner.-." "§ 654. The clerk or judge receiving and opening the commission and return must immediately tile it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending." "§ 655. If the commission and return be transmitted by mail, the clerk to whom it is addressed musl open and file it in his office, where it must remain, unless the court otherwise direct." 394 LAW OF EVIDENCE IN CRIMINAL CASES. "§ 656. The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same, or of any part thereof, on payment of his it the rate of five cents for rvn-v hundred words." "§ 657. The deposition, taken under the commission, may be read in evidence by either party on the trial, and the same objec- tion- may be taken to a question in the interrogatories, or to an answer in the deposition, as if the witness had been examined orally in court." For authorities bearing upon the general subject of depositions, and conditional examination under the practice above outlined, see People v. Guidiei, 100 K Y. 507; People r.Ward, 4 Park. Crim. Rep. 516; Mauer v. People, 43 X. Y. 1; People v.Pestell, 3 Hill, 289; Webster v. People, 02 X Y. 422; Peoples. Vermil- . 7 ( low. 369; People v. Squire, 3 X. Y. S. K. 194. § 246. Statement of the English and California Rule.— A deposition taken for the perpetuation of testimony in criminal -. under 30 & 31 Yict. chap. 35, § 6, may be produced and read as evidence, either for or against the accused, upon the trial of any offender or offense to which it relates — if the deponent is proved to be dead or if it is proved that there is no reasonable probability that the deponent will ever be able to travel or to give evidence, and if the deposition purports to be signed by the justice by or before whom it purports to be taken, and if it is proved to the satisfaction of the court that reasonable notice of the intention to take such deposition was served upon the person (whether prosecutor or accused) against whom it is proposed to be read, and that such person or his counsel or attorney had or might have had, if he had chosen to be present, full opportunity of cross- examining the deponent. Stephen, Dig. art. 141. "§ 1335. When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment or information, have witnesses examined conditionally, on his behalf, as prescribed by this chapter, and not otherwise. ••.' L336. When a material witness for the defendant is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined •conditionally. "§ 1337. The application must he made upon affidavit, stating — 1. The nature of the offense charged. DEPOSITIONS IN CRIMINAL CASES. 395 2. The state of the proceedings in the action. 3. The name and residence of the witness, and that his testi- mony is material to the defense of the action. 4. That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial. "§ 1338. The application may be made to the court, or to a judge thereof, and must be made upon three days' notice to the district ■attorney. "§ 1339. If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and that a •copy of the order be served on the district attorney within a speci- fied time before that fixed for the examination. "§ 1340. The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate of service upon the district attorney of a copy of the order, if no counsel appear on the part of the people, the examination must proceed. "§ 1311. If the district attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, oris not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed. "§ 1312. The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken. "§ 1343. The testimony given by the witness must be reduced to writing, and authenticated in the same manner as the testimony of a witness taken in support of an information. "§ 1344. The deposition taken must, by the magistrate, be sealed up and transmitted to the clerk of the court in which the action is pending or may come for trial. "§ 1315. The deposition or a certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sick- ness, or infirmity, or of his continued absence from the state. Upon reading the deposition in evidence, the same objection may be taken to a question or answer contained therein as if the wit- ness had been examined orally in court. 396 LAW OF EVIDENCE IN CRIMINAL CASES. "§ 1346. "Where a material witness for a defendant, under a crim- inal charge, is a prisoner in the state prison, or in the county jail or a county other than that in which the defendant is to be tried, his deposition may be taken, on behalf of the defendant, in the man- lier provided for in the case of a witness who is sick, and the pro- visions of the penal code, commencing with section thirteen hundred and thirty-five, and ending with section thirteen hundred and forty-five, shall, so far as applicable, govern in the application for and in the taking and use of such deposition. Such deposi- tion may be taken before any magistrate or notary public of the county in which the jail or prison is situated; or in case the wit- ness is confined in the state prison, and the defendant is unable to pay for taking the deposition, before the warden or clerk of the board of directors of the state prison, whose duty it shall be to act without compensation. Every officer, before whom testi- mony shall be taken by virtue hereof, shall have authority to administer, and shall administer, an oath to the witness that his testimony shall be the truth, the whole truth, and nothing but the truth." Desty, Penal Code of California, chap. 4. § 247. Examination of Witnesses Conditionally for the Accused. — As previously stated, the right to introduce a deposi- tion in evidence in a criminal prosecution is regulated entirely by statute. In some jurisdictions provision is made for taking depo- sitions for the benefit of the accused beyond the limits of the state, while denying such privilege to the prosecution. People v. Howard, 50 Mich. 241; Newton v. State, 21 Fla. 53. And it should be observed that where the local law countenances this method of procedure, the provisions of that law must be strictly followed. People v. Mitchell, <;4 Cal. 85. So it has been held that the prosecution cannot read on the trial a deposition taken before trial, unless the defendant was present when the deposition was taken. Maurer v. People, 43 N. Y. 1; ]N". Y. Code Crim. Proc. § 8. subd. 3; 1 Bishop, Crim. Proc. (3d ed.) § 265. The absence of the prisoner has been held to render the deposition inadmissible. Peojph v. Restell, 3 Hill, 289. A deposition is not entitled to the same weight and credence as oral testimony. State v. Grant, 79 Mo. 113, 40 Am. Rep. 218. After reading a deposition in evidence, it has been held that the deponent cannot afterwards be examined orally at the same trial (State v. Kring, 74 Mo. 612); but the reason for this ruling seems rather unsatisfactory. Rapalje, Crim. Proc. § 279. PART III. EVIDENCE FOR THE PROSECUTION. CHAPTER XXXIY. EVIDENCE AFFORDED BY THE INDICTMENT. § 248. What Allegations must be Proved and what may lie Suggested. 249. Phillips "Three Rules" Stated. 250. Characteristics of an Indictment. 251. Rule Observed in Framing. 252. Former Strictness Relaxed. 253. Names of Witnesses must be Indorsed upon Indictment. 254. Evidence of Time and Place. 255. Quashing Indictment Founded on Illegal Evidence Given be- fore the Grand Jury. 256. Wlien Evidence Introduced to Sustain Indictment mag be Stricken out. * a. Examination of the Principle Affecting this Right to Exclude. b. Views of Justice McGowan and Others. c. Prejudice must have Resulted or Incompetent Evidence will Stand. d. When Incompetent Evidence is not Deemed Harmless. e. Wlien Motion to Strike out must be Made. § 248. What Allegations must he Proved and what may he Suggested. — In the present chapter it is proposed to consider, 1st. What allegations in an indictment must be proved to support it, and what may be disregarded in evidence; and 2d. With what precision those allegations, which cannot be disregarded in evi- dence, must be proved. "1. In order to convict a man of an offense, all the material facts which constitute the offense, and which are necessary to enable the parties to avail themselves of the verdict and judgment, should the same charge be again brought forward, must be stated 397 398 LAW OF EVIDENCE IN CRIMINAL CASES. upon the indictment; and all these requisite allegations must be- satisfied in evidence, and proved as laid. But allegations not essential to such a purpose, which might be entirely omitted,. without affecting the charge against the prisoner, and. without detriment to the indictment, are considered as mere surplusage,. and may be disregarded in evidence. ********** "In considering the subject of surplusage, it must always be remembered that it is a most general rule that no allegation whether necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge in the in- dictment, can ever be rejected. ********** "2. It is to be considered with what precision of proof those allegations which cannot be disregarded in evidence must be sup- ported; or, in other words, what is a fatal variance between a. material averment in an indictment, and the evidence adduced in support of it. The general rule on this subject is, that a variance between the indictment and the evidence is not material provided the substance of the matter be found. ********** "And with respect to the proof of the offense charged the rule is universal that it is sufficient if the evidence agree in substance with the averments in the indictment. Thus, on an indictment for murder, it will be sufficient if the manner of the death proved. agree in substance with that charged. ********** "In criminal prosecutions, from the highest offense to the lowest, it is unnecessary to prove the time of committing the offense precisely as laid, unless that particular time is material; and the facts may be proved to have occurred on any day previous to the finding of the bill by the grand jury." 2 Russell, Crimes, chap. 2, p. '790, § 3. J!y express sanction of the Federal law which may be regarded as a settled principle of the legal polity of this country, the ac- cused lias the constitutional right "to be informed of the nature and cause of the accusation." U. S. Const. 6th Amend. In United, i v. Mills, 32 U. S. 7 Pet. 142, 8 L. ed. 637, this was con- strued to mean, that the indictment must set forth the offense "with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged; 1 ' and in United States EVIDENCE AFFORDED BY THE INDICTMENT. 399" v. Cook, 84 U. S. 17 "Wall. 174, 21 L. ed. 539, that, "every ingre- dient of which the offense is composed must be accurately and clearly alleged." It is an elementary principle of criminal plead- ing, that where the definition of an offense, whether it be by common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offense in the same- generic terms as in the definition; but it must state the species — it must descend to particulars. 1 Archb. Crim. Pr. & PI. 291.. The object of the indictment is first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a con- viction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with rea- sonable particularity of time, place, and circumstance. "Where satisfactory evidence is adduced tending to show that the indictment was founded upon incompetent or insufficient evidence a motion to quash is in order. A plea in abatement will not lie, and in fact should never be allowed. People v. Hulbut, 4 Demo, 133; State v. Boyd, 2 Hill, L. 288; United States v. Reed, 2 Blatchf. 435; Turk v. State, 7 Ohio, 240; State v. Day- ton, 23 ]ST. J. L. 49; Spratt v. State, 8 Mo. 247; Bex v. Dickenson, Kuss. & R. 401; Reg. v. Russell, Car. & M. 247. In People v. Hulbut, supra, the court, per Branson, Chief Justice, said : "The indictment when presented in due form by the grand jury and filed in court is a record, and, like other rec- ords, imports absolute verity. It cannot be impeached unless it be upon motion showing that it was not founded upon sufficient evidence, or that there was any other fault or irregularity in the proceedings." The grand jury is a constituent part of the court of oyer and terminer, and the control of that court over its proceedings con- tinues, and may be thus exercised after the grand jury has adjourned. People v. NaugUon, 7 Abb. Pr. N. S. 421, 1 23, 424, 38 How. Pr. 430; State v. Cowan, 1 Head, 280; Clem v. State, 33- Ind. 418. The minutes of evidence taken before the grand jury are a part of the records of the court and remain in the custody 400 LAW OF EVIDENCE IN CRIMINAL CASES. of one of its officers. State v. Little, 4.2 Iowa, 51. A court always takes judicial notice of its own records in the cause; and this though not brought before it by affidavit. Craven v. Smith, L. R. 4 Exch. 146. Every pleading, civil or criminal, must contain allegations of the existence of all the facts necessary to support the charge or defense set up by such pleading. An indictment must contain allegations of every fact necessary to constitute the criminal charge preferred by it. As, in order to make acts criminal, they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged. If, in order to sup- port the charge, it is necessary to show that certain acts have been committed, it is necessary to allege that those acts were in fact committed. If it is necessary to show that those acts, when they were committed, were done with a particular intent, it is necessary to aver that intention. If it is necessary, in order to support the charge, that the existence of a certain fact should be negatived, that negative must be alleged. Bradlatojh v. Reg. L. E. 3 Q. B. 007. It is also a familiar and elementary principle of criminal plead- ing that an indictment upon a statute must state all the circum- stances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it. If the indictment may be true, and still the accused may not be guilty of the offense described in the statute, the indictment is insufficient. So where the definition of an offense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indict- ment shall charge the offense in the same generic terms as in the definition, but it must state the species — it must descend to par- ticulars. Boyd v. Com. 77 Ya. 52. This rule does not require that the w< >rds of the statute should be precisely followed. Words of equivalent import may be substituted, or words of more extensive signification, and which necessarily include the words used in the statute. The decisions are by no means uniform on the subject. All tarts and circumstances stated i*n the indictment which cannot be rejected as surplusage, must be proved; and all descrip- tive averments must be strictly proved. 4 Am. & Eng. Enc. Law, title Criminal Procedure. The rule that a descriptive averment must be strictly proved, EVIDENCE AFFORDED BY THE INDICTMENT. 401 has one qualification in cases of homicide and felonious assault. If the averment is that the homicide was caused, or the assault •made, in a designated manner, it is not necessary to prove strictly the details of the means averred to have been used in so commit- ting the offense. If the indictment is for murder by poisoning, and, it is averred, by poisoning with a certain drug, the indict- ment is supported by proof of poisoning with a different drug. East, P. C, chap. 5, § 107. A charge of felonious assault with a staff will be sustained by proof of such assault with another bruising implement, as a stone, — SliarwirCs Case, cited in 1 East, P. C. chap. •5, § 107, — and a charge of strangling by clasping both hands about the throat, is sustained by proof of strangling by placing •one hand over the mouth. Bex v. CulJdn, 5 Car. & P. 121. It is necessary to prove matter of description only when the averment, of which the descriptive matter forms a part, is ma- terial. Bishop, Crim. Proc. §§ 484, 487; State v. Cqpp, 15 K H. 212; State v. Bailey, 31 K H. 521; Rex v. May, 1 Dougl. 193; Bex v. Bippett, 1 T. E. 235; State v. Dame, 60 N. H. 479, 49 Am. Pep. 331. The public prosecutor may insert several counts in the same indictment alleging the offenses distinctly and separately, in various ways, to meet the evidence, and the court will not compel an election between them on the trial. Nelson v. Beople, 5 Park. Crim. Pep. 39. And as was said by Chancellor "Walworth, in Kane v. People, 8 Wend. 203 : "It is every day's practice to charge a felony in different ways in several counts for the purpose of reaching the evidence as it appears on the trial," and "if the different counts are inserted in good faith for the purpose of making a single charge, the court will not compel the prosecution to elect." I am not aware that the correctness of this practice has ever, since that time, been questioned. The modern doctrine is, that the refusal to compel an election in such a case cannot be alleged for error, but is a matter of discretion. People v. Baker, 3 Hill, 159; Cook v. People, 2 Thomp. & C. 404. See also Bob- erts v. Beople, 9 Colo. 458; Corley v. State, 50 Ark. 305. We will conclude this subject by an extract from the opinion in Goodhue v. People, 94 111. 37 : "If two or more offenses form part of one transaction, and are such in nature that a defendant may be guilty of both, the prosecution will not, as a general rule, be put to an election, but may proceed under one indictment for 26 402 LAW OF EVIDENCE IN CRIMINAL CASES. tlic BeveraJ offenses, though they be felonies. ... In misde- meanors the prosecution may, in the discretion of the court trying the ease, be required to confine the evidence to one offense, or where evidence is given of two or more offenses, may be required to elect one charge to be submitted to the jury; but in cases of felony it is the right of the accused, if he demand it, that he be not put upon trial at the same time for more than one offense, except in cases where the several offenses are respectively parts "f the same transaction." 249. LMiillips "-Three Rules" Stated.— Fixed rules must !>e observed for the discovery of truth. Of these the following are, perhaps, the chief : "1. The actual commission of the crime itself shall be clearly established. "2. Each circumstance shall be distinctly proved. "3. When the leading fact or crime is only to be collected from circumstances, a material variation in these will defeat the effect of the whole. For, as each particular is to have an effect upon the general conclusion, a variation in the circumstances may give a different color to the whole transaction. A system of proposi- tions is only true because each of the propositions of which it is composed is true." Phillips, Famous Cases, Circ. Ev. Intro. 35. 50. Characteristics of an Indictment. — The indictment is the formal written accusation of one or more persons of a crime or misdemeanor preferred to, and presented upon their oath by, a grand jury. In strict legal parlance it is not so called until the hill has been found "a true bill." 4 Bl. Com. 302; Archb. Crim. Pr. & PI. 1. 58, 59. The action of the grand jury upon bills of indictment is very important to individuals and the public. On the one hand, the safety, good order and well-being of society are to be affected for good or evil by it, and, on the other, a person should m it be causelessly accused of crime. This should be done upon solemn consideration, and for reasonable apparent cause. It may be of great consequence to the accused whether the accusa- tion be well or ill founded. Such bills are not to be treated ly, but seriously; the action of the grand jury must be based, not merely upon conjecture, suspicion, mere information that they, or a member or members of their body, may know, but upon, the testimony of witnesses duly sworn, or other evidence that EVIDENCE AFFORDED BY THE INDICTMENT. 403 comes before them duly authenticated. If a grand juror has knowledge of facts material, he should be sworn as a witness and examined as such. State v. Cain, 8 X. C. 352. The grand jury is an inquisitorial and accusing body; they hear only the evidence on behalf of the prosecution. The finding of the bill of indictment is in the nature of an inquiry or accusation which is afterwards to be tried when the accused will have oppor- tunity to make defense. They must inquire whether there be sufficient cause to call upon the accused party to answer, but such inquiry must be founded upon proper evidence. They do not act in the light of evidence the accused may produce in his behalf upon his trial, but they should be satisfied of the truth of the charge contained in the bill of indictment, so far as the evidence goes. It is essential that witnesses should be sworn and compe- tent. State v. Fellows, 3 N. C. 340. It was held when the in- dictment was found upon the single testimony of an incompetent witness, it should be quashed. And it has been repeatedly held that the indictment should be quashed where the same was found upon the evidence of witnesses not sworn. State v. Cam, 8 ~N. C. 352; State v. Roberts, 19 X. C. 540; State v. Lanier, 90 N. C. 714; State v. Ivey, 100 K C. 539. An indictment duly found affords a presumption of guilt. See Ex parte Ryan, 44 Cal. 555. § 251. Rule Observed in Framing. — Mr. Rapalje in his Crim- inal Procedure at section 87. says: "The general rule in framing an indictment is, that the offense shall be so described that the defendant may know how to answer it, the court what judgment to pronounce, and that a conviction or acquittal on it may be jfieaded in bar to any other indictment for the same offense. The accused must be apprised of every ingredient of the crime with which he stands charged; and matters material to constitute the crime must be set forth with sufficient fullness to enable him to know with reasonable certainty what he has to meet, and so posi- tively and distinctly as to leave nothing to intendment or impli- cation." State v. Shirer, 20 S. C. 392: People v. Graves, 5 Park. Crim. Rep. 134; McConnell v. State, 22 Tex. App. 354, 58 Am. Rep. 047; United States v. Goggin, 1 Fed. Rep. 4'.*; t niU d StaU s v. Cruihshank, 92 TJ. S. 542, 23 L. ed. 588; Statt v. Mace, 76 ALe. 04; Greene v. State, 79 Ind. 537; Kearney v. State, 48 Md. 494 LAW OF EVIDENCE IX CRIMINAL CASES. 16; Hunt v. State, Tex. App. 404; Parker v. State, 9 Tex. App. 351; Houston v. State, 13 Tex. App. 595; Caldwell v. State, 14 Tex. App. 171. The same well known author says at section 91, in speaking of disjunctive and conjunctive averments: "When independent clauses in a statute are connected by the conjunction 'or,' the prosecution need satisfy but one of the alternatives. An indict- ment in such a case may count upon all the clauses by substitut- ing the copulative for the disjunctive conjunction, where the lat- ter is used in the statute; but, at the election of the pleader, the indictment may count upon any one of the alternative clauses which independently define the offense. The use of the disjunc- tive 'or' is fatal in charging a criminal offense." BerUnger v. . Tex. App. 181; State v. Fancher, 71 Mo. 460; State v. .ird, 76 Mo. 322; State v. Carr, 6 Or. 133; State v. Berg- man, 6 Or. 341; State v. Dale, 8 Or. 229; State v. Price, 11 K J. L. 241; State v. Carver, 12 K. I. 2S5; Hart v. State, 2 Tex. App. 39; State v. O'Bannon, 1 Bail. L. 144; State v. Flint, 62 Mo. 393. An indictment must be so drawn as to exclude any assumption that the indictment may be proved and the defendant still be innocent. State v. Melville, 11 R. I. 418; State v. Smith, 11 Or. 205. jS"o principle of criminal pleading is better settled than this: "If the indictment contains one good count, it is sufficient, and this notwithstanding there may be defective counts. Phelps v. People, 72 N. T. 365; People v. Davis, 56 1ST. Y. 95; Guenther v. People, 24 X. Y. 100; Crichton v. People, 6 Park. Crim. Rep. 363, 1 Keyes, 344, 1 Abb. App. Dec. 470; People v. Stein, 1 Park. Crim. Pep. 202; Baron v. People, 1 Park. Crim. Rep. 246; PeopU v. Gilkinson, 4 Park. Crim. Rep. 26; LaBeau v. People, :;r. EIow. Pr. ,70; Peed v. Keese, 60 K Y. 616; Lyons v. People, 68 111. 272; Latham v. Reg. \) Cox, C. C. 516; Cook v. State, 49 Miss. 9; Estes v. State, 55 Ga. 131; Adams v. State, 52 Ga. 565; Chappell x. State, 52 Ala. 359; 1 Bishop, Crim. Proc. (2d ed.) § 1015; 3 Whart. Crim.L. (7th ed.) §§ 3208, 3209; People v. Gon- zales, 35 X. Y. 60; Wood v. People, 59 K Y. 117. "An indictment containing a count charging murder in the com- mon law form, if sustained by evidence, justifies a conviction for any of the degrees of felonious homicide known to the law. This EVIDENCE AFFORDED BY THE INDICTMENT. . 405 lias been the well settled law in Kew York for upwards of half a century. People v. Enoch, 13 Wend. 159; People V. White, 22 Wend. 1G7; Fitzgerrold v. People, 37 K Y. 413; Kennedy v. People, 39 1ST. Y. 245; Cfo v. People, SO K Y. 500; People v. 6W'oy, 97 K Y. G2, 2 K Y. Crim. Rep. r>t\:>. This is the well settled rule in many of the other states. White v. Com. 6 Binn. 179; Puller v. State, 1 Blackf. 63; Wicks v. 6W 2 Ya. Cas. 387; Mitchell v. z&'tffo, 5 Yerg. 340, 8 Yerg. 514; Com. v. Flanagan, 7 Watts & S. 415; Ilines v. /Sitofc, 8 Humph. 597; Gehrke v. tftate, 13 Tex. 508; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; Livingston v. 6 r o??2. 14 Gratt. 592; Cbm. v. Gardner, 11 Gray, 438; People v. Dolan, 9 Cal. 570; CW. v. Desmarti au, 16 Gray, 1; c?/vr/, v. Cbw. 12 Allen, 170; Witt v. fltofe, 6 Coldw. 5; J/b- Adams v. State, 25 Ark. 405; $tate v. P//^, 49 KH. 399, 6 Am. Rep. 533; State v. Thompson, 12 ]Sev. 140. "The authorities with scarcely an exception, agree that it is absolutely necessary, in charging a felony, to charge that the act was feloniously done; . . . that the sukstance of a good com- mon-law indictment should be preserved. If one matter of sub- stance may be dispensed with, another may be, and where is the limit to the innovation? . . . This court has repeatedly held that, in indictments for felonies, the word 'feloniously' is substan- tive in charging the offense, — a word that has a fixed and well defined legal meaning, understood by bench and bar/' Kaelin- v. Com. 84 Ky. 354, quoting from Mott v. State, 29 Ark. 147. See also Bowler v. State, 41 Miss. 570. § 252. Former Strictness Relaxed. — The strictness with which indictments were formerly construed has been considerably relaxed; and it is right that it should be so, while the substantial rights of the accused are preserved. The natural leaning of the mind, observed Lord Kenyon (Sharwin , s Case, 1 East, 341), is in favor of prisoners, and in the mild manner in which the laws of this country are administered it has been a subject of com- plaint, with some, that the judges have given way too easily to formal objections in behalf of prisoners. Lord Hale remarks (2 Hale, P. C. 193) that the strictness required in indictments was grown to be a blemish and inconvenience in the law, and the administration thereof; that more offenders escape by the over ea.sy ear given to exceptions to indictments than by the manifesta- 406 LAW OF EVIDENCE IN CRIMINAL CASES. tion of their innocence, and that the greatest crimes had gone unpunished, by reason of these unseemly niceties. Chitty also remarks (1 Chitty, Crim. L. 171) that in criminal cases, where the public security is so deeply interested in the prompt execution of justice, it seems the minor consideration should give way to the greater, mid technical objections be overlooked, and as a practical vindication of this view we will cite the well settled rule that verbal or grammatical inaccuracies, which do not affect the sense, are not fatal. Mere misspelling is not fatal. Whart. Crim. PI. & Pr. £ 273; Shay v. People, 22 N. Y. 317; State v. Gilmore, 9 YV. Va. 641; State v. Hedge, 6 Ind. 333. If the sense be clear, nice exceptions ought not to be regarded. And even when the sense of the word may be ambiguous, this will not be fatal, if it is sufficiently shown by the context in what sense the phrase or word was intended to be used. Bex v. Stevens, 5 East, 244, 260; 2 Hale. P. C. 1 '.»•".; State v. Edwards, 19 Mo. 674; State v. Halida, 23 ^Y. Va. 499. § 253. Names of Witnesses must be Indorsed upon Indict- ment. — When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be indorsed upon the indictment before it is presented to the court. If not so indorsed the court must, upon the application of the defendant, at any time before the trial, direct the names of such witnesses as they appear upon the minutes of the grand jury, to be furnished to him forthwith. It is also the duty of the prosecution to call all material witnesses who were present at the commission of the crime, or any who had knowledge of it. "The commonwealth demands justice, not vic- tim.-." R-ict v. Coin. 102 Pa. 408. This rule, however, does not require the prosecution to call respondent's wife as a witness, in order that she may be cross-examined, even though her name has been indorsed on the information as one of the witnesses for the prosecution. People v. Wolcott, 51 Mich. 612. The rule effecting this subject as laid down in Poscoe is in the following language: "Although a prosecutor was never in strict- ness bound i" call every witness whose name is on the back of the indictment, yet it is usual to do so, in order to afford the prison- er's counsel an opportunity to cross-examine them; and if the prosecutor would not call them, the judge in his discretion might. The judges, however, have now laid down a rule, that the prosecutor EVIDENCE AFFORDED BY THE INDICTMENT. 407 is not bound to call witnesses merely because their names are on the back of the indictment, but that the prosecutor ought to have all such witnesses in court, so that they may be called for the defense, if they are wanted for that purpose. If, however, they are called for the defense, the person calling them makes them his own witnesses." See Scott v. People, 63 111. 508; Keener v. State, 18 Ga. 194; Hill v. People, 20 Mich. 196; People v. Bon- ney, 19 Cab 426. The prosecution can never, in a criminal case, properly claim a conviction upon evidence which expressly or by implication, shows but a part of the res gestae, or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. Hurd v. People, 25 Mich. 405, 415. "•Every witness," he said, "who was present at a transaction of this sort, ought to be called; and even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusion as to the real truth of the matter." Peg. v. Holden, 8 Car. & P. 609. The rules above stated as to the witnesses named on the back •of the indictment, in no way compel the state's attorney to place them on the stand. State v. Cain, 20 W. Va. 079. All that the rule requires is that such witnesses should be in court. Reg. v. Cassidy, 1 Fost. & F. 79. The above paragraph should be read in connection with the case of Wellar v. People, 30 Mich. 23, where it was held reversible error in the trial court not to compel the states' attorney to call an eye witness to the homicide whose name was indorsed on the back of the indictment. Another ex- ception is found as to rebutting witnesses. It would be useless because impossible for the prosecution to forecast the nature of the direct testimony or to even surmise the nature and scope of the rebutting evidence. Hence witnesses may lie called on rebut- tal whose names do not appear on the back of the indictment. Stat< v. Ruthven, 58 Iowa, 121. § 254. Evidence of Time and Place. — The precise time of the commission of an offense need not be stated in the indictment, and hence, the prosecution is not called upon to prove the precise time under the familiar rule, that it is only required to produce such evidence as is necessary to support the indictment. This statement, however, must he taken with this additional qualifica- tion that evidence must he produced tending to show that the 408 LAW OF EVIDENCE IN CRIMINAL CASES. offense was committed before the finding of the indictment, and before the statute of limitations was allowed to operate. In other words, this will be sufficient showing, unless time is an in- dispensable ingredient of the offense. United States v. Winslow, 3 Sawy. 337; Roberts v. State, 19 Ala. 526; Irvin v. State, 13 Mo. 306; People v. Lafumte, G Cal. 202;State v. Hanson, 39 Me. 337; v. Beaton, 79 Me. 314; Lucas v. State, 27 Tex. App. 322;. Chandler v. State, 25 Fla. 728; Arcia v. State, 28 Tex. App. 19S; Archb. Crim. Pr. & PI. p. 275; Whart. Crim. L. § 2G1. The term employed in designating time, is "on or about," and tin* is deemed a sufficient particularization; at least it is not so indefinite as to vitiate the indictment. State v. Harp, 31 Kan. 49S; State v. Barnett, 3 Kan. 250; State v. Tuller, 34 Conn. 294; People v. Littlefield, 5 Cal. 355; People v. Kelly, 6 Cal. 210; F'irr, II v. State, 45 Ind. 371; Hampton v. State, S Ind. 336; State v. Elliot, 34 Tex. 14S; CoJzely v. State, 4 Iowa, 479; fiawson v. State, 19 Conn. 295. The only object of alleging time, unless it enters into the nature of the offense, is to show that the prosecution is not barred by the statute of limitations, and that the offense was committed within the political subdivision of the state over which the court has criminal jurisdiction. These principles are elementary and stat- utory, and need no citation of authorities. State v. Adams, 20 Or. 525. Modern criminal law has utterly abandoned the old theories 'ling evidence of the time and place at which an offense was committed. The obvious hardship of requiring the prosecution to prove with absolute accuracy, the hour and minute at which an offense was done, doubtless contributed to this reform. Evidence is conclusive that a hideous crime has been committed. Evidence is equally conclusive as to the perpetrators of this dastardly act. The instrumentalities by which it was accomplished are also shown. Premeditation and fiendish malice are established — every ssory that can deprive the act of palliation or excuse is shown to exist; and yet the inability of the commonwealth to show the exact time of the occurrence, must operate to free the guilty par- ties. This standing reproach upon the administration of justice happily no longer exists; and the precise time at which the'erime was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding, EVIDENCE AFFORDED BY THE INDICTMENT. 409' except where the time is a material ingredient in the charge. !N"» Y. Code Crim. Proc. § 2S0. So long as the facts and incidents precluded all doubts respect- ing the identity of the transaction, and so long as it was manifest that the act was recent enough to be subject to prosecution, and that a preliminary examination in regard to it had been had, time is not an ingredient of the offense in any such sense as to make it necessary to charge it according to the truth. The infor- mation or indictment may state one time and the proof show a different one without involving an objectionable variance. Tur- ner v. People, 33 Mich. 3TS. It is a rule that time and place, when and where the crime was committed, must be stated with certainty in the indictment, but it is not necessary to prove them on the trial as stated, unless they are necessary ingredients in the offense. People v. Stocking, 32 How. Pr. 48. Place is immaterial, unless where it is matter of local descrip- tion, such as the parish, etc., where the house or building is de- scribed to be in an indictment for burglary, or for breaking and entering a house, shop, warehouse, or a building within the curti- lege, etc., in which cases the local description must be proved as laid. Upon an indictment for treason or conspiracy, if you prove one good overt act in the county where the venue is laid, you may prove the others to have taken place in any other part of the country. And upon an indictment against an accessory before or after the fact, he may be indicted, in any place and before any court where his principal may be tried, no matter where the offense of the accessory was committed. 1 Archb. Crim. Pr. & PI. p. 119. § 255. Quashing Indictment Founded on Illegal Evi- dence Given before the Grand Jury. — An indictment will be quashed, if it plainly appears to the court to have been found upon wholly incompetent or insufficient evidence; but if the jury acted upon legal testimony reaching the whole case, the court will not weigh its sufficiency. The jealousy with which the early law guarded the secrets of the grand jury room, has largely disappeared. The sacramental character of that august body is very imperfectly recognized at the present day. The theory that the proceedings Ik ■lore this body are beyond the scrutiny or condemnation of court or coun- •ilU LAW OF EVIDENCE IN CKIMINAL CASES. Bel, is a foolish pretense that is very generally abandoned. Mal- ice, corruption and ignorance frequently combine to impress upon the proceedings of this body, the tyrannical and oppressive func- tions of the Star Chamber and the Council of Ten. And to say or eveD intimate that where corrupt practices exist, there is no method open for their proper disclosure is simply to insist that our criminal law is crippled with a hideous deformity. In Burdick v. Hunt, 43 Ind. 381, it is said there is no suffi- cient reason why the prosecuting attorney may not be called upon in a court of justice to disclose any evidence given or proceedings had before a grand jury. And the following authorities are to the effect that generally the evidence of grand jurors is compe- tent whenever it is necessary to ascertain who was the prosecutor (Sikes v. Dunbar, 2 Wheat. Sel. K P. 1091; Huidekoper v. Cot- ton, 3 Watts, 56) <>r what was the issue and what the testimony of the witnesses before a grand jury in a given case. Thomas v. Com. 2 Rob. (Ya.) 795; State v. Offutt, 4 Blackl 355; State v. Fassett, L6 Conn. 457; Com. v. Hill, 11 Cush. 137; State v. Broughton, 29 K C. 96, 45 Am. Dec. 507; Way v. Butter worth, J i iti Ma>s. 75; Burdick v. Hunt, supra. The rule which may be adduced from the authorities, and which seems most consistent with the policy of the law, is that whenever it becomes essential to ascertain what has transpired before a grand jury it may be shown, no matter by whom; and the only limitation is that it may not be shown how the individ- ual jurors voted or what they said during their investigations {People v. Shattuck, 6 Abb. K C. 34; Com. v. Mead, 12~ Gray, 1»'>7. 71 Am. Dec. 741) because this cannot serve any of the pur- poses of justice. In Si, if, v. Froiseth, 16 Minn. 29S, it was conceded by the attorney general, and the court concurred, that where the grand jury required an accused person to be brought before them and testify touching the accusation the indictment should be set aside, although in that case the indictment was not found solely upon the testimony of theaccused. InPeople v.Briggs, 60 How. Pr.17, the court, Osborn, -/., held that an indictment should be quashed where the defendant's wife was called as a witness against him by the grand jury, for the reason that this was a substantial error, and it was doubtful whether the grand jury wouldhave found an indictment without the wife's testimony. United States v. Far- rington, 5 Fed. Rep. 343, 2 Crim. L. Mag. 525. EVIDENCE AFFORDED BY THE INDICTMENT. 411 The proceedings of grand juries cannot ordinarily be disclosed, but this rule is not to be carried to the extent of obstructing jus- tice or of creating wrong and hardship. A court may inquire into the evidence upon which a grand jury found an indictment, and if such evidence is plainly illegal and incompetent should •quash the indictment. People v. Hestenblatt, 1 Abb. Pr. 268; United States v. Farrin/;>/■<-t legal proof of which the case admits. In this respect they are judicial tribunals. The prosecuting officer is presumed to be familiar with the rules of evidence, and it is his duty to take care that no evidence is received by the grand jury which would not be admissible in a court upon the trial of a cause. 1 Whart Crim. L. § 493. As to how far grand jurors may be allowed or compelled to tes- til'v as to proceedings before their body, is a question upon which there is son a- diversity of decisions in the courts. By the policy of the law grand juries act in secret, and, with the view of sus- taining that policy, it is prescribed that a grand juror shall, among other things, swear that "the state's counsel, your fellows, and your own, you shall keep secret." The principal ground of that policy is to inspire the jurors with a confidence of security in the- discharge of their responsible -duties; and secrecy as to the actions and the opinions of jurors upon matters before them must ever remain inviolable. It follows from the foregoing review that an indictment should be quashed when it appears by affidavit that it was found by the- grand jury without adequate evidence to sustain it. People v. RestenhlaU, 1 Abb. Pr. 268; People v. Byler, 2 Park. Crim. Rep. 570. If any illegal evidence has been introduced before the grand jury which bears in the smallest degree upon the final result of the deliberations, it cannot properly be disre- garded, and the indictment should be set aside. Worrall r. Par- melee, 1 K Y. 519, 49 Am. Dec. 350; Anderson v. Rome, W. & 0. R. Go. 54 X. Y. 334; Baird v. Gtilett, 47 H". Y. 1S6. Since- the decision of the case of the People v. Briggs, 60 How. Pr. 17, deciding the incompetency of the wife as a voluntary witness- against the husband (per Judge Osborn), the same question has been decided the same way in the case of Byrd v. State, 57 Miss. 243, 34 Am. Kep. 440, reported since Judge Osborn's decision, ilso People v. Crandon, 17 Hun, 490, which holds directly that the wife is not a competent witness in a criminal action against her husband. Any defect which, in any stage of a crim- EVIDENCE AFFOKDED BY THE INDICTMENT. 413 inal proceeding will vitiate the indictment, may be taken advan- tage of by plea in abatement. 2 Hale, P. C. 2-'36. Any defect or irregularity appearing upon the face of the indictment or upon some matter of fact extrinsic of the record, may be cured by plea in abatement to quash. 1 Bishop, Crim. Proc. § 416. Upon a motion to quash an indictment, affidavits cannot be read to contradict or explain the allegations in the indictment without the consent of the district attorney, and common law proof is required to sustain or avoid the allegations in an indictment, unless by consent of the district attorney other proof is accepted. People v. Clews, 57 How. Pr. 215. In 1 Wharton's American Criminal Law, § 520, it is said: "It is error to quote on matters not apparent in the indictment, or ■caption, extrinsic matter being proper for the defense only on trial by jury." In a note to this section he says: "By consent, however, extraneous matter may be brought in." Bishop, in 1 Criminal Proceedings, § 763, admits this to be the general rule, but says: "The better doctrine is, that the court in its discretion may go outside of the indictment and record and try the whole •question on affidavits." This is the substance of his text for what he styles the "better doctrine." He cites on supporting this "better doctrine," State v. Batchel- ■or, 15 Mo. 207; State v. Wall, 15 Mo. 208; State v. Cain, 8 N. C. 552; Reg. v. Beam, 4 Best & S. 94, 9 Cox, C. C. 433, 10 Jur. K S. 724; United States v. STiepard, 1 Abb. U. S. 431. "I have examined these cases carefully and they do not author- ize, in my opinion, or sustain the views of Mr. Bishop. IsTor are they authority that affidavits can be received when objected to by the district attorney." Grosvenor, J., in People v. Clews, supra. There are various valid reasons which, when properly urged, will affect the quashing of an indictment. Thus uncertainty is frequently alleged as a reason {State v. Robinson, 29 1ST. n. 275- Mwphy v. State, 106 Ind. 9G; State v. Roach, 3 X. C. 352) or want of jurisdiction. State v. Benthall, 82 N. C. 6G4. And du- plicity constitutes a sufficient cause. . Knopf v. State, 84 Ind. 316. Under the New Tork Code of Criminal Procedure, § 32:), this last objection is made available by demurrer. The rules relating to this subject of quashing an indictment filiate more particularly with practice methods and will receive no further notice in this connection. 414 LAW OF EVIDENCE IN CRIMINAL CASES. § 256. When Evidence Introduced to Sustain Indictment may be Stricken out. — Where as it actually happens in many cases counsel offer certain irrelevant testimony under a promise to subsequently connect it with some vital fact in issue, and the court with this promise in view admits the evidence, it may be stricken out on motion, if the event discloses a failure to so con- inn it. Page v. Parker, 43 N. H. 363, 80 Am. Dec. 172. This rule, it must be borne in mind, is of doubtful propriety in criminal cases: "It must be apparent that such testimony, having (nice gone to the jury, its impression would necessarily, to some extent, remain in their minds, though they were ordered to dis- card it; and in a ease of circumstantial evidence, it is next to impossible to say how far that impression exercised its influence in supplying any defect which might have arisen, or in solving any doubt in their minds on the general state of the evidence. A prosecuting officer in behalf of the state, in his zeal for a convic- tion, should never overlook the fact that the interests in society and the vindication of the law require at his hands as much the protection of the innocent as the conviction of the guilty. Evi- dence of this character, in cases involving life, should never be proposed by him, unless he is morally certain that he can make good his promise of connecting the defendant with the matter; there should he no room for doubt, where, he could have ascer- tained in advance the existence or non-existence of defendant's connection with the proposed evidence." Marshall v. State, 5 Tex. App. 273. A contrary doctrine is held in regard to civil cases. Joslin v. Grand Rapids Ice & C. Co. 53 Mich. 323. As sustaining the doctrine of Marshall' v. State, supra, see State v. Daubert, 42 Mo. 242; Lafayette, B. & M. R. Co. v. Wins- low, 66 111. 219; Blizzard v. Ablegate, 77 Ind. 516; Hopt v. People, 114 U. S. 488, 29 L. ed. 1S3'; Specht v. Howard, 83 TJ. S. 1*; Wall. 564, 21 L. ed. 348; Davis v. Peeeler, 65 Mo. 189; Goodnow v. Hill, L25 Mass. 589; Dillin v. People, 8 Mich. 369; Abbott, Trial Brief, 52, citing Mechelke v. Bramer, 59 Wis. 57; Piper v. White, 56 Pa. 90; Hall v. Patterson, 51 Pa. 289; Bil- berry v. Molley, 21 Ala. 277; Van Buren v. Wells, 19 Wend. 203; Abney v. Eingsland, L0 Ala. Mr.."), 44 Am. Dec. 491; Games v. Piatt, 15 Abb. Pr. A'. S. 338, 4 Jones Ar S. 361, affirmed in 59 N. Y. 405. EVIDENCE AFFORDED BY THE INDICTMENT. 415 It frequently occurs in the trial of a cause civil or criminal, that a cunning and discriminating witness will attempt to foist upon the record an answer that is in no sense responsive to the question asked. Under such circumstances either party may ob- ject to the relevancy of the evidence and ask that it be stricken out. Such a request should always be granted. Greenman v. O'Connor, 25 Mich. 30; Lansing v. Coley, 13 Abb. Pr. 272; Kingsbury v. Jfoses, 45 N. H. 222. a. Examination of the Principle Affecting this Right to Exclude. — We have elsewhere discussed the regulations in vogue regarding "offers to prove." It is perhaps unnecessary to add that where there is a failure to connect the testimony elicited with any of the issuable propositions of the case the testimony that has been received, upon the theory that it is relevant, should be stricken out when it appears that it sustains no legitimate relation to the proof required. Upon this subject there is suggestive comment in several California cases. At a recent trial in that state the defendant moved to strike out certain evidence. The court denied the motion upon the statement of the district attorney that he would show its rele- vancy by other evidence, but gave the defendant leave to renew his motion at a subsequent stage of the trial. The district attor- ney failed to introduce the other evidence, and the defendant renewed his motion, which was granted. It was argued that the court ought to have granted the motion in the first instance, and that when the evidence was finally stricken out, a caution con- cerning it should have been given to the jury. But it is usual and quite proper for a court to accept the statement of a reputa- ble counsel, and upon the faith of such statement to temporarily refuse to strikeout evidence that has been introduced, or to admit evidence offered. And if the defendant had desired any caution to the jury; he should have asked for it. The failure of a court to charge on any point usually proceeds from inadvertence, and the law casts upon the parties the duty of calling the judge'.- at- tention to the matter by a formal request for an inst ruction in relation to it. People v. Haun, 44 Cal. 96; People v. P<>,/ u nolo, 44 Cal. 541; People v. Ah Wee, 48 Cal. 237; People v. Collin*, 48 Cal. 277; Chamberlain v. Vance, 51 Cal. 84; Williams v. Hartford In*. Co. 54 Cal. 410; People v. McLean, 84 Cal. 480. b. Views of Justice McGowan and Others. — In further 416 LAW OF EVIDENCE IN CRIMINAL CASES. vindication of the position taken of the text, I will refer to the case of State v. James, 34 S. C. 49, where the question involved was a subject of an extended review. As usual in cases of this character the counsel for the defense urged that the testimony complained of had been heard by the jury, that the evil effects inherent in erroneous evidence must have left a prejudicial im- pr< sssion which the mere instruction to disregard could not remove. Mr. Justice McGowan in refusing to grant a new trial on the ground of the admission of erroneous evidence, employs the fol- lowing vigorous language : "We know that the law is very tender ■of human life, but considering the character of the testimony in connection with the whole case, we cannot hold that the bare cir- cumstance of the evidence having been heard by the jury, should vitiate the whole proceeding. The jury was instructed not to consider it, and we must assume that they were what the law directs, sensible, intelligent men, entirely without bias. It is true, there are extreme cases in some of our sister states, in which the court- have gone very far in the opposite direction; but there is 11. > such case in this state. As we think, the proper rule in such cases is laid down in 2 Graham & Waterman, New Trials (2d ed.) page 633, where, in commenting upon the case of Craddock v. Craddock, 8 Litt. (Ky.) 78, the learned author says: 'But so rigid a discipline would be injudicious. A more moderate and less exacting course has been found to answer every purpose. In the progress of a warmly contested suit, exceptionable testimony will occasionally slip in, despite of the greatest care of the court and counsel. If, therefore, the bare circumstance that such evi- dence had gone to the jury, vitiated all the proceedings, scarcely a verdict in any case of importance would stand. So that it is, on the whole, the part of the wisdom for courts, to regard not so much the fact that improper evidence has been admitted, as the influence it may have had on the result. We may, then, lay it down as a settled rule, that if the verdict is undeniably correct, a new trial will not be granted, even in case of the admission of improper evidence.' " Notwithstanding the general propriety of this view it must be borne in mind that striking out testimony that has been improperly allowed in a criminal case, and caution- ing the jury not to be influenced by it, does not necessarily obvi- ate its effects. People v. Wolcott, 51 Mich. 612. EVIDENCE AFFORDED BY THE INDICTMENT. 417 Though the court know not, as seldom can it know, that the needful connecting proof will be forthcoming, may it not rest for awhile on the assertion of reputable counsel of his expectation that he can produce it ? That a court may base its action upon the avowals aiid declared purposes of counsel is shown by Dunn v. JPeopl , 29 X. T. 523. It seems to us that it would too much hamper the trial courts in their proceedings, if they are much restricted in the exercise of a discretion rested in them, in such case, for the convenience and dispatch of business, and often for & proper understanding and appreciation of the testimony. As •was said by Kelson, Ch. J., in a kindred matter, in Morris v. Wadsworth, 17 Wend. 103, the question must always depend so much upon the exercise of a sound discretion that it would be unsafe to lay down any general rule for the disobedience of which an exception should be allowed. See also Fly nn v. Murphy, 2 E. D. Smith, 37S; Philadelphia & T. R. Co. v. Stimpson, 39 U. S. 11 Pet. 4G3, 10 L. ed. 513, per Story, J. Truly it is at limes a delicate discretion, to be used with sound judgment and great care for the case of the prisoner, lest he be jeoparded with the jury by testimony that may never properly have a place in their consideration. And it may be well often to doubt whether the zeal of counsel does not lead to an expectation of forthcoming connecting testimony, when it does not exist. Tilghman, Ch. J., in Stewart v. Huntingdon Bank, 11 Serg. & R. 267, said: "It has grown into a habit, within these few years for counsel to propose a chain of evidence, the first link of which depended on those which follow, and would not be competent without them." He remarks the incident dangers, and adds : "The court should, therefore, keep a wary eye on proceedings of this kind, and take care to instruct the jury to pay no regard to the evidence which they have heard whenever the condition on which it was introduced is not complied with." At a much more recent date it was decided, that if improper evidence is given, tending to inflame the damages, and it is not struck out at or be- fore the close of the testimony, so that counsel shall not be allowed to refer to or dwell upon it in their address to the jury, it is alto. gether too late to cure the mistake by directing the jury to disre- gard it in the charge. Pennsylvania R. Co. v. Butler, 57 Pa. 335. Whenever the incompetent testimony received is of such a. •character as to inevitably tend to prejudice the minds of the 27 418 LAW OF EVIDENCE IN CRIMINAL CASES. jurors, the error is not cured by the court telling them, after the- argument lias closed, not to consider it. Huntingdon & B. T. .!/. R. & C. Co. v. Decker, 82 Pa. 119. The rule is settled that, in civil cases, if incompetent testimony is not withdrawn before the' argument, and so that it be reasonably certain that its poison has not infected the whole case, the error in the receiving of it is not cured. What then ought to be the rule when life or liberty is at stake? If it has become a custom in capital cases to receive incompe- tent evidence, on the faith that it will become competent before the trial closes, would it not be well to abandon it? When such evidence has been made competent by subsequent proofs, there will not be a reversal because it was prematurely received. If withdrawn at a time and in a way that makes it certain the accused was not prejudiced, the error would be cured. But if its tendency- was to affect the credibility of a witness, or to establish the pris- oner's guilt, who can say it was effaced from the juror's mind. Much pains is taken to get an unbiased and pure mind, as white paper, on which to write the legal evidence, and it should not be purposely blotted with irrelevant matter. Once fouled, it is hard to clean. New York holds to the same ruling. It has long been well settled in the courts of that state that an error in the reception of illegal evidence is not cured bv a direction to disregard the evi- dence. Erben v. Lorillard, 19 X. Y. 302; Furst v. Second Ave.. R. Co. 72 X. Y. 547; Coleman v. People, 58 X. Y. 501; Ander- son v. Rome, W. & 0. R. Co. 54 X. Y. 341; Stokes v. PeopU, 53 X. Y. 184, 13 Am. Rep. 492; Worrall v. Parmelee, 1 X. Y. 519,. 49 Am. Dec. 350; Newman v. Goddard, '■>> Hun, ~rl: Irvine v. Cook, 15 Johns. 239; Penfield v. Carpender, 15 Johns. 350; Vandevoort v. Gould, 36 K Y. 639; People v. Gonzcdes, 35 X. Y. 49. c. Prejudice must have Resulted or Incompetent Evi- dence will Stand. — When a fact is conclusively proved, by com- petent evidence, so that the court can see that no prejudice or injury could possibly have resulted from the admission of incom- i evidence to prove the same fact in another stage of the case, its admission will not be cause for interfering with the result, but the rule is to be cautiously applied, especially in crim- inal cases. Williams v. Fitch, 18 X. Y. 546; People v. White, 14- EVIDENCE AFFORDED BY THE INDICTMENT. 419 Wend. Ill; Erlen v. Lorillard, 19 K T. 299. The true and the only rule that can be sustained upon principle is, that the intend- ment of law is, that an error in the admission of evidence is prej- udicial to the party objecting, and will be ground for the reversal of the judgment unless the intendment is clearly repelled by the record. The error must be shown conclusively to be innocuous. Vandevoort v. Gould, 36 N. Y. 639; People v. Gonzales, 35 IS". Y. 49. It is not enough that the court sitting in review of the judgment may be of the opinion that the result ought to, and probably would, have been the same if the objectionable evidence had been excluded, and especially ought not such a presumption avail to cure an error upon a criminal trial. The rule laid down in Foote v. Beecher, 78 jST. Y. 158, is as fol- lows: "An error in receiving incompetent evidence, if properly excepted to, can only be disregarded when it can be seen that it did no harm. If the evidence is slight or irrelevant, or if, with- out it, the fact is conclusively established by other evidence, it may be disregarded, because it could not have injured the other party." A just application of the law will not allow an indictment to stand unless warranted by the evidence. People v. Morrison, 1 Park. Crim. Rep. 025; Reynolds v. People, 41 How. Pr. 179; People v. Bransby, 32 X. Y. 525; People v. Dohrvng, 59 N". Y. 374; Walter v. People, 50 Barb. 144. And in Alabama the admission of illegal or irrelevant evidence against the objection of a defendant, on trial for a criminal offense, is a reversible error, unless it affirmatively appears that no injury resulted therefrom. Maxwell v. State, 89 Ala. 164; Maries v. State, 87 Ala. 99; Vaughcm v. State, 83 Ala. 55; Mitchell v. State, 60 Ala. 26. d. When Incompetent Evidence is not Deemed Harmless. — When incompetent evidence may have a tendency to arouse the prejudices of the jury it cannot be deemed harmless. Ander- son v. Rome, W. & 0. R. Co. 54 K Y. 334. And this rule applies in both civil and criminal cases, and with even greater force in the latter than in the former. Baird v. Gillett, 47 N. Y. 186; Worrcdl v. Parmelee, 1 N. Y. 519, 49 Am. Dec. 350; Starin v. People, 45 K Y. 341; Ross v. Ackerman, 40 K Y. 210; Osgood v. Manhattan Co. 3 Cow. 612, 15 Am. Dec. 304; Mar- quand v. WeUb, 16 Johns. 89; Rosenweig v. People, 63 Barb. 635; Peopjle v. Haynes, 38 How. Pr. 309; People v. Pierpont, I Wheel. 420 LAW OF EVIDENCE IN CRIMINAL CASES. Crim. Cas. 139; People v. Ilopson, 1 Denio, 574; Cary v. Hotail- ing, 1 Hill, 316, 37 Am. Dec. 323; Hall v. People, 6 Park. Crim. Kep. 071; 1 Greenl. Ev. §§ 51, 52, 448. But when such incompetent evidence is offered, the objection should be fully stated. After this has been done and the objec- tion argued, overruled, and the evidence received; the attention of the court again called to its objectionable character by a motion to strike it out, and exception to the adverse rulings duly taken, counsel may well desist from renewing fruitless objections. State v. Graves, 17 Colo. . e. When Motion to Strike out must be Made. — It is not too late after argument is closed, for the party who has given improper evidence, to call upon the judge to charge the jury, that it was illegally admitted and should be disregarded by them. Abbott, Trial, Brief, § 716. CHAPTER XXXV. BURDEN OF PROOF. i § 257. Preliminary View. 258. Burden of Proof Pests upon the Prosecution. 259. Never Shifts but is with Prosecution throughout. 2G0. Where a Fact is Peculiarly within the Knowledge of a Party. 261. When Accused must Establish the Defense of Insanity. 262. Proving a Negative. 263. A Prima Facie Case will not Rebut the Presumption of Innocence. 264. Burden of Proof in Statutory Crimes. 265. The Rule Deduced from the Celebrated Stokes Case. 266. Views of Sir James Stephen. 267. Summary of the Conclusion Reached. § 257. Preliminary View. — It is an elementary principle of criminal jurisprudence, a principle firmly imbedded in the or- ganic law of every free state and vindicated by statutory guar- antee as well as by innumerable judicial decisions, that every criminal, however hideous his alleged crime, or however debauched and fiendish his character, may require that the elements of that crime shall be clearly and indisputably defined by law, and that his commission of and relationship to the alleged offense shall be established by legal evidence delivered in his presence and before a jury of his peers. Until accorded this right, he may safely Haunt and boast his immunity from punishment, and his right to invoke the protection of the legal presumption of innocence which the law in its leniency extends to every person. This principle is vindicated in countless decisions that it is mere pedantry to cite. Its latest exposition perhaps is from Chief Judge linger of the .New York court of appeals in People v. Plath, 100 N. Y. 590. This is a valuable principle that ought never to be drawn in ques- tion. § 258. Burden of Proof Bests upon the Prosecution. — Independent of any modification by statute to rebut the presump- tion of innocence, the burden of proof rests upon the prosecution in every kind of criminal action or proceeding; or, as otherwise 421 422 LAW OF EVIDENCE IN CRIMINAL CASES. expressed by an eminent author, "the burden of proof is always on the party who asserts the existence of any fact which infers legal accountability." Wills, Circ. Ev. 145, Kule 2. Guilt must be established by sufficient evidence. There has been various formulae in use, such as "beyond a reasonable doubt," "fully satisfied," "satisfied, etc." The first expression is said to be inexplainable. Probably as sensible a definition as can be found, was expressed by Baron Parke: "The doubt, however, must be not a trivial one such as speculative ingenuity may raise, but a conscientious one, which may operate upon the mind of a ra- tional man, acquainted with the affairs of life." Reg. v. Tawell Aylesbury Special Assizes, 1845, cited in "Wills, Circ. Ev. 194; Bailey, Onus Proband!, p. 442. Where the crime consists of several degrees, this burden exists as to the degree charged, and as to every fact necessary to consti- tute that degree; and that, if, upon the whole evidence, including that part of the defense, as well as that of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt; and this is true with re- spect to the degree of the crime charged, and with reference to every essential requisite of that degree; and that in all these re- spects the burden is never shifted from the prosecutor to the prisoner. Stokes v. People, 53 K Y. 164, 13 Am. Rep. 492; Broiherton v. People, 75 N. Y. 159; People v. MeCann, 16 ~N. Y. 58, 69 Am. Dec. 642; People v. Convoy, 97 N. Y. 62-75, 2 K Y. Crim. Rep. 565; People v. Schryver, 42 K Y. 1, 1 Am. Rep. 480. "The general rule as to the burden of proof in criminal cases is sufficiently familiar. It requires the government to prove, beyond a reasonable doubt, the offense charged in the indictment, and if the proof fails to establish any of the essential elements necessary to constitute a crime, the defendant is entitled to an acquittal. This results not only from the well established principle that the presumption of evidence is to stand until it is overcome by proof but also from the form of the issue in all criminal cases tried on the merits, which being always a general denial of the crime charged necessarily imposes on the government the burden of showing affirmatively the existence of every material fact or in- gredient which the law requires in order to constitute an offense. If the act charged is justifiable or excusable, no criminal act has BURDEN OF PROOF. 423 been committed and the allegations in the indictment are not proved. This makes a broad distinction in the application of the •rule as to the burden of proof to civil and criminal cases. In the former, matters of justification or excuse must be specifically pleaded in order to be shown in evidence, and the defendant is therefore, by the form of his plea, obliged to aver an affirmative, and thereby to assume the burden of establishing it by proof, while in the latter all such matters are open under the general issue, and the affirmative, namely, proof of the crime charged, remains in all stages of the case upon the government." Com. v. McKie, 1 Gray, 61, 61 Am. Dec. 410. Continuing, the learned judge remarks — and this is the qualification of the general rule: "There may be cases where a defendant relies on some distinct, substantive ground of defense to a criminal charge, not necessarily connected with the transaction on which the indictment is founded (such as insanity, for instance) in which the burden of proof is shifted upon the defendant." In fact, we know of no case where it has been held that the rule that "the burden of proof never .shifts from the state," has been held to extend further than proof of the case as charged in the indictment; nor of any case where, if .the defendant seeks to excuse himself from liability on account of some substantive, distinct matter, he has not been held to have the laboring oar, and the onus of making good his issue thus pre- sented. Much has been written, and there is much hypercriticism in the discussion of the propositions that in criminal prosecutions the ■onus is never shifted, and that the presumption of innocence .accompanies the prisoner through all the stages of his trial. These are valuable canons of the law, but, like most other general rules, are subject to some modifications in their application, the observance of which is essential to the good order and well-being of society. JBraswell v. State, 2 Crim. L. Mag. 32. ' "All the presumptions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven guilty. If, upon such proof, there is a reason- .able doubt remaining, the accused is entitled to the benefit of it by an acquittal.' In the decision of a criminal case, there must be more than a preponderance of evidence. It would not be suf- ficient to justify a conviction if the jury should be satisfied of the guilt of the defendant to such a moral certainty as would inliu- 424 LAW OF EVIDENCE IN CRIMINAL CASES. ence their minds in the important affairs of life. But the evidence must entirely satisfy the jury of the guilt of the defendant before they can convict. If the jury are not entirely satisfied, they should acquit." People v. Levine, 85 Cal. 39. § 259. Never Shifts, hut is with Prosecution through- out. — "Properly it (the term 'burden of proof) is applied only to a party affirming some fact essential to the support of his case.. Thus ii-i'd it never shifts from side to side during the trial. Loosely used . . . it is confounded with the weight of evi- dence, a very different thing, which often shifts from one side to the other as facts and presumptions appear and are overcome, and in this indiscriminate use of the term 'burden of proof,' much of the apparent conflict in the cases has its origin. For, after all,, the test of the burden of proof is very simple, and so is the ques- tion of the weight of evidence, and there is no contrariety in the principle adopted by the authorities." Pease v. Cole, 53 Conn. 53, 55 Am. Rep. 53. The true rule is that the burden of proof never shifts; that in all cases, before a conviction can be had, the jury must be satisfied from the evidence, beyond a reasonable doubt of the affirmative of the issue presented in the accusation, that the defendant is guilty in the manner and form as charged in the indictment. Com. v. McKie, 1 Gray, 04, 61 Am. Dec. 410; Com. v. York, 9 Met. 125, 43 Am. Dec. 373; Com. v. Webster, 5 Cush. 305, 52 A in. Dec. 711; Com. v. Eddy, 7 Gray, 584. "The proposition . . . that the burden of proof never shifts on the defendant at any stage of the proceedings is not strictly correct. It is true the state must prove the offense charged beyond a reasonable doubt. The statute then casts the burden of proof as to matters of mitigation or excuse upon the defendant. The public prosecutor cannot be compelled to search for and put in evidence all the facts connected with the transaction, or excul- patory facts in the prisoner's favor. The policy of the law, as evinced by the presumption of innocence and the doctrine of rea- sonable doubt, would require the public prosecutor to introduce such proof as will give a fair account of the transaction. This bring done, it devolves upon the defendant to produce in evidence- such matters of mitigation, justification, or excuse, if any such exist, as may tend to explain his action and show the necessity therefor; otherwise a verdict of guilty must necessarily be returned BURDEN OF PROOF. 425- against him. He is not required by the statute however, to prove such circumstances beyond a reasonable doubt or to the extent of satisfactorily establishing his defense. He is only required to- prove the same as any other facts are required to be proved; and if the matters relied on be supported by such proof as would pro- duce a reasonable doubt in the minds of the jury as to the guilt of the prisoner, when the whole evidence concerning the transac- tion comes to be considered by the jury, the rule of law is that there must be an acquittal." Alexander v. People, 96 111.96;. Kent v. People, 8 Colo. 503. § 260. Where a Fact is Peculiarly within the Knowledge of a Party. — But where a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law, will not render it incumbent upon the other side to prove the negative; but the party who must know the fact is put to the proof of it. l'i, if "I States v. Wayward, '1 Gall. 4S5. It was said by Abbott, Ch. J., that the party was called on to answer for an offen>e against the excise laws, sustains not the slightest inconvenience from this general rule, for. he can imme- diately produce his license; whereas if the case is taken the other way, the informer is put to a considerable inconvenience. Har- risons Case, cited in Paley, Convictions (2d ed.) 45, note. See also Pee v. Smith, 3 Burr. 1470. The same rule has been fre- quently acted upon in civil cases. Thus, on an action against a. person for practicing as an apothecary, without having obtained a certificate, the proof of the certificate lies upon the defendant, and the state need not give any evidence of his practicing without it. Apothecaries Co. v. Bentley, Buss. & M. 159; People v. Nyce, 34 Hun. 298. The law is well settled that "in an action for a penalty given by statute, it was not necessary for the prosecutor to disprove any qualification; that in such case the onus prooandi lay upon the defendant." People v. Quant, 2 Park. Crim. Bep. 410. Tims, on an indictment for a breach of the excise law, evidence of a sale of spirituous liquors by the defendant, in less quantities than five gallons, establishes, prima facie, the offense. It is in such case for the defendant to show that he has the license required by law.. Smith v. Joyce, 12 Barb. 21. 426 LAW OF EVIDENCE IN CRIMINAL CASES. § 261. When Accused must Establish the Defense of In- sanity. — Crimes can only be committed by human beings who are in a condition to be responsible for their acts; and upon this gen- eral proposition, the prosecutor holds the affirmative, and the burden of proof is upon him. Sanity being the normal and usual condition of mankind, the law presumes that every individual is •in that state. Hence a prosecutor may rest upon that presump- tion without other proof. The fact is deemed to be proved prima facie. Whoever denies this, or interposes a defense based upon* its untruth, must prove it. The burden, not of the general issue of crime by a competent person, but the burden of overthrowing the presumption of sanity and of showing insanity, is upon the person who alleges it; and if evidence is given tending to estab- lish insanity, then the general question is presented to the court and jury whether the crime, if committed, was committed by a person responsible for his acts; and upon this question the pre- sumption of sanity and the evidence are all to be considered, and the prosecutor holds the affirmative, and, if a reasonable doubt exists as to whether the prisoner is insane or not, he is entitled to the benefit of the doubt, and to an acquittal. BrotJierton v. Peo- ple, 75 K Y. 159; G 'Connell v. People, 87 K Y. 377, 41 Am. Eep. 379; Walker v. People, SS K Y. 81; Casey v. People, 31 Hun, 158; People v. McCann, 16 K Y. 58, 69 Am. Dec. 612; People v. Schrtiyver, 42 K Y. 1, 1 Am. Kep. 480; Walter v. Peo- ple, 32 K Y. 147; O'Brien v. People, 4S Barb. 274; People v. Robinson, 1 Park. Crim. Kep. 649; State v. Iloyt, 46 Conn. 330; State v. Lawrence, 57 Me. 574; State v. Jones, 50 !N". H. 369, 9 Am. Eep. 242; Dacey v. People, 116 111. 555; State v. Crawford, 11 Kan. 32. § 262. Proving a Negative.— The burden of proving the defendant's guilt may require the prosecution to prove a negative. Com. v. Samuel, 19 Mass. 103; State v. Morphy, 33 Iowa, 270; State v. Ilirsch, 45 Mo. 429; State v. Wilbounie, S7 N. C. 529. But where the fact is peculiarly within the knowledge of one party rather than the other, the burden of proof may be imposed on the one having the means of proof. State v. Arnold, 35 JST. ( '. 1 84; Pounders v. State, 37 Ark. 399; State v. Camden, 48 N. J. L. 89; Wheat v. State, 6 Mo. 455; Williams v. State, 35 Ark. 430; Pi ople v. Syce, 34 Hun, 298; Flower v. State, 39 Ark. 209; State v. Higgins, 13 E. I. 330; State v. Keggon, 55 Is. II. 19; BURDEN OF PROOF. 427 •Com. v. Locke, 114 Mass. 288; Abbott, Trial Brief, §§ 739, 740. See § 4, ante. There are many negative propositions which admit of easy and -certain proof; for instance, that a man was not at a given place; this may be established by showing that lie was at another place, •so distant as to render it impossible to suppQse that he was at both; ■ and in this and similar cases, the difficulty of showing a negative will have little or no weight in determining upon whom the onus lies. Phil. Ev. Cowen & Hill's Notes, note 346. "An affirmative proposition is to be proved by the party ad- vancing it; and so a negative proposition. Among the most authoritative exponents of this view is Mr. Best, in his treatise on Evidence. 'The general rule,' he declares, 'is, that the burden of proof lies on the party who asserts the affirmative of the issue, or question in dispute, — according to the maxim, Ei incumbit jpro- ■batio qui dicit, non qui negatf and to this effect he cites Mr. Starkie and Mr. Phillipps, sustaining his views by a copious expo- sition. The negative, it is argued, is not suseej)tible of proof. An affirmative proposition, therefore, is the only kind of propo- sition which a party can be called upon to prove. "But to this it has been well replied, that there is no proposition which does not blend negation with affirmation, and in which affirmation of one side does not involve a denial of the other side. An alibi, for instance, is at once a negation of the defendant's presence at a particular spot at a particular time, and an affirma- tion of his presence at another place at the same time. Or the defense of insanity is in like manner both an affirmation and a negation — an affirmation of the existence of disturbing mental ■conditions, a negation of sanity. Nor is this all. In many cases •each party unites, with an affirmation on his part of his own rights, and a denial of the rights of his opponent; and the affirmation and denial are so mixed as to be incapable of severance in proof." Whart. Grim. Ev. §§ 10, 320. § 263. A Prima Facie Case will not Rebut the Pre- sumption of Innocence. — In a criminal case, a prima facie case •of guilt does not generally rebut the presumption of innocence, or .shift the burden of proof. Until the state proves, in the first instance, beyond a reasonable doubt, the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence. The jury are not authorized to find 426 LAW OF EVIDENCE IN CRIMINAL CASES. the defendant guilty on the evidence of a single witness, upon whose testimony the question of guilt depends, if they have a- reasonable doubt of the truth of his statements. Washington v. State, 58 Ala. 355. § 264. Burden of Proof in Statutory Crimes.— In all stat- utory crimes it is competent for the legislature to say that certain facts proven by the common wealth shall be sufficient to make out a presumptive cast' against the accused, and cast the burden of proof upon him, provided the burden is cast upon him to prove his innocence, without first requiring the commonwealth to prove some material fact or circumstance conducing to prove the guilt of the accused. For instance, where it has been proven that a faro bank or other table mentioned in the statute has been set up in any of the houses mentioned in the statute, the statute makes such proof evidence that the faro bank or other table was set up by the permission of the person occupying or controlling the house, etc. The constitutionality of this provision has never been questioned. In the case of Buford v. Com. 14 B. Mon. 24, the right of the commonwealth to convict on such testimony was .-auctioned. Com. v. Minor, 88 Ky. 422. § 265. The Rule Deduced from the Celebrated Stokes Case. — It is a cardinal rule in criminal prosecutions that the burden of proof rests upon the prosecutor; and that if upon the whole evidence, including that of the defense as well as of the prosecution, the jury entertains a reasonable doubt of the guilt of the accused, he is entitled to the benefit of the doubt. The jury must be satisfied on the whole evidence of the guilt of the accused; and it is clear error to charge them, when the prosecution has made out a prima facie case and evidence has been introduced tending to show a defense, that they must convict, unless they are satisfied of the truth of the defense. Such a charge throws, the burden of proof upon the prisoner and subjects him to a con- viction, though the evidence on his part may have created a rea- sonable doubt in the minds of the jury as to his guilt. Instead of leaving it to them to determine upon the whole evidence whether his guilt is established beyond a reasonable doubt, it constrains them to convict, unless they are fully satisfied that he- has proved his innocence. Stokes v. People, 53 N. Y. 104, IS Am. Dec. 402. BUKDEN OF PKOOF. 429 § 266. Yiews of Sir James Stephen. — "Whoever desires any court to give judgment as to any legal right or liability de- pendent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist. If the commission of a crime is directly in issue in any proceeding, criminal or civil, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty •of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. . . . The burden of proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side, regard being had to any presumption which may appear upon the plead- ings. As the proceeding goes on, the burden of proof may be shifted from the party on whom it rests at first by his proving facts which raise a presumption in his favor. . . . The bur- den of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person; but the burden may in the course of a case be shifted from one side to the other, and in considering the amount of evidence necessary to shift the burden of proof the court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respect- ively. . . . The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." Stephen. Dig. chap. 13. § 267. Summary of the Conclusions Reached. — It is idle to pursue this topic further, as there are few legal propositions that are so wholly bereft of technical embarrassments. The formula we may safely adduce from the reported cases as to the burden of proof, may be stated as follows : It is obligatory upon the state to sustain the burden of proof throughout the trial, so far as re- gards the material averments of the indictment, and the proof of the same. And as regards these averments, the burden of proof never shifts. Where, however, the defense relies upon some dis- tinct substantive matter which is calculated to exempt him from punishment and absolve him from liability, then that is matter foreign to the issue as made by the state in her charge against 430 LAW OF EVIDENCE IN CRIMINAL CASES. him, and the burden of proving it in reason, common sense and law, should be upon the defendant. Ake v. State, 6 Tex. App.. 398, 32 Am. Rep. 586. For an exceedingly valuable review of this discussion, the practitioner is referred to an extended note appended to the case of Boswell v. State, 53 Ala. 307, as reported, in 53 Am. Rep. 20. The "ultimate essence" of all reasoning on the subject may be thus expressed : "The evidence given by the prosecution must furnish an adequate foundation for the conclusion of fact involved in the verdict against the accused." Otherwise the state has failed to rid itself of the onus probandi and the trial must result in an acquittal. CHAPTER XXXYI. REASONABLE DOUBT. § 268. Difficulty in Defining. 269. The Phrase "Moral Certainty''' Examined. 270. Observations of Authority on the Term "Reasonable- Doubt:' 271. Views of the Missouri Supreme Court. 2 72. Extended Citation of the Authorities. § 268. Difficulty in Defining. — Many efforts have been made to define the expression "reasonable doubt," and hitherto the defi- nitions given are not remarkable for clearness of thought or accuracy of expression. They appear generally to be involved in the uncertainty of the subject which they are attempting to define, and it is much easier to say what is not a correct definition of the term than to determine the precise signification of the expression as used in the trial of criminal cases. The following instruction as to what was meant by "reasonable doubt" was approved by Campbell, Ch. J., in People v. Pinley, 38 Mich. 482, viz: "A 'reasonable doubt' is a fair doubt, growing out of the testi- mony in the case. It is not a mere imaginary, captious, or possi- ble doubt, but a fair doubt, based upon reason and common sense. It is such a doubt as may leave your minds, after a careful exam- ination of all the evidence in the case, in that condition that you cannot say you have an abiding conviction, to a moral certainty,, of the truth of the charge here made against the respondent." A reasonable doubt is one arising from a candid and impartial investigation of all the evidence, and such as, in the graver trans- actions of life, would cause a reasonable and prudent man to hesi- tate and pause. May v. People, 60 111. 110; Miller v. People,^ 111. 457; Connaghan v. Peopjle, SS 111. 460; Dunn v. People, 109 111. 635. A reasonable doubt entertained by some of the members of the jury may not compel an acquittal, but it may so strongly prevail, and among so many, as to warrant others in yielding their opin- 431 432 LAW OF EVIDENCE IN CRIMINAL CASES. ions, and joining in a verdict of acquittal. Stits v. State, 104 Ind. 359. It is not eas}' to define, in a few words, what a reasonable doubt is, and, in some jurisdictions, it is deemed good practice not to attempt any explanation. In Ohio it is common to define the term. When it is attempted, the explanation should be an aceur rate one. The definition given by Birchard, e/!, in Clark v. /State, 12 Ohio, 483, note, 40 Am. Dec. 481, is well established as a safe one, and its sufficiency is not impaired by its age. It is safe to follow established precedents. Morgan v. State, 48 Ohio St. 371. The definition referred to is as follows: "You will be justified and are required to consider a reasonable doubt as existing, if the material facts, without which guilt cannot be established, may fairly be reconciled with innocence. In human affairs absolute certainty is not always attainable. From the nature of things, reasonable certainty is all that can be attained on many subjects. When a full and candid consideration of the evidence produces a conviction of guilt, and satisfies the mind to a reasonable certainty, a mere captious or ingenious artificial doubt is of no avail. You will look, then, to all the evidence and if that satisfies you of the defendant's guilt, you must say so. If you are not fully satisfied, but find only that there are strong probabilities of guilt, your only safe course is to acquit." Birchard, J., in Clark v. State, 12 Ohio, 495, note, 40 Am. Dec. 181. In criminal matters nothing is to be taken by intendment, but the utmost strictness of construction prevails in favor of liberty And life. State v. Dickinson, 41 Wis. 299. Again, it is an imperative rule of evidence that the allegations of the prosecutor must be proved beyond reasonable doubt. In civil cases, the law, in general, only requires that the fact in issue shall be established by the party having the burden of proof, to the reasonable satis- faction of the jury. This appears to be the meaning of the phrase "by a preponderance of proof." Com. v. York, 9 Met. £3, t3 Am. Rep. 373; Hichardson v. Burleigh, 85 Mass. 479. The administration of the criminal law is essentially dependent, in a large degree necessarily, on the existence and force of cir- cumstances, for the purpose of making out criminal charges. This results from the fact that crimes ordinarily seek concealment. They are committed ordinarily, openly, and before the public, or before the public eye, but occasions are sought for the commission REASONABLE DOUBT. 433 of crime when safety or security from observation, or from prose- cution and punishment to a certain degree, may be within hope and the expectation of the culprit. For this reason it has been found at all times in the intelligent administration of the law necessary to resort in a great measure to the force and effect of circumstances in order to discover from the inference, that maybe drawn from the circumstances whether the offense has or has not been committed. The law upon this subject has been wisely and carefully settled for the purpose of guarding the rights and interests of the defendant as well as protecting those of the public. And it requires, where the case depends, at least one branch of it depends, on circumstantial evidence, that those circumstances shall be of such a persuasive or satisfactory character as to leave no rational ground of doubt as to the defendant's guilt, before he may be convicted. In other words, the circumstances are required to be of so forcible a nature as to exclude every other reasonable supposition or hypothesis or theory than that of the defendant's guilt, before a conviction can be reached by force of evidence of this description. "A reasonable doubt is not such a doubt as any man may start by questioning for the sake of a doubt, nor a doubt suggested or surmised without foundation in the facts or testimony. It is such a doubt only as in a fair, reasonable effort to reach a conclu^ioe upon the evidence, using the mind in the >ame manner as in other matters of importance, prevents the jury from coming to a con- clusion in which their minds rest satisfied. If so using the mind, and considering all the evidence produced, it leads to a conclusion which satisfies the judgment, and leaves upon the mind a settled conviction of the truth of the fact, it is the duty of the jury so to declare the fact by their verdict. It is possible always to question any conclusion derived from testimony. Such questioning is not what is a reasonable doubt, but the circumstances, if the case is one of circumstantial evidence, must so concur that no well established fact or circumstance, which is capable of controlling the case, should go counter to the conclusion- sought to be reached, or which are to be reached. If al! the circumstances concur in one result, it is for the jury to say whether those circumstances are suffi- cient to establish that result, or whether there is a failure to cover probabilities of the case, so a.- to make it reasonably certain that the fact has been made out. . . ." Com. v. Costley, 118 Mass. 16. 23 434 LAW OF EVIDENCE IN CRIMINAL CASES. Mr. Justice Graves, in People v. Marble, 38 Mich. 125, consid- ered the following instruction misleading and inaccurate, viz: "What 1 mean by a 'reasonable doubt' is that it must be such evidence as would satisfy you, — as you would be willing to act upon in any of your own important concerns, your own business. Such evidence as would satisfy you it would be proper for you to act upon in any of your own private concerns, — that would be evidence that would satisfy you beyond a 'reasonable doubt.' That is what this means." We do not think that the phrase "reasonable doubt" is of such unknown or uncommon signification that an exposition by a trial judge is called for. Language that is within the comprehension of persons of ordinary intelligence can seldom be made plainer by further definition or refining. All persons who possess the quali- fications of jurors know that a "doubt" is a fluctuation or uncer- tainty of mind arising from defect of knowledge or of evidence, and that a doubt of the guilt of the accused, honestly entertained, is a "reasonable doubt." We repeat here what was said by Mr. Justice Campbell upon this subject in Hamilton v. People, 29 Mich. 104, namely: "But we do not think that juries can derive any help from attempts, by numerous and complicated requests, to explain what would be very much plainer without them. If a jury cannot understand their duty when told they must not convict when they have a reasonable doubt of the prisoner's guilt, or of any fact essential to prove it, they can very seldom get any help from such subtleties as require a trained mind to distinguish. Jurors are presumed to have common sense, and to understand common English; but they are not presumed to have professional or any high degree of technical or linguistic training." People v. Stu- henvoll,62 Mich. 329. "Then, what is reasonable doubt? It is a term often used . . . but not easily defined. It is not a moral and possible doubt, because everything relating to human affairs and depending upon moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after entire consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral cer- tainty of the truth of the charge. The burden of proof is upon the prosecutor; all the presumptions of law, independent of evi- KEASONAKLE DOUBT. 435 dence, are in favor of innocence, and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the ben- efit of it by an acquittal. For it is not sufficient to establish a probability . . . that the fact charged is more likely to be true than the contrary, but the evidence must establish the proof of the fact to a reasonable and moral certainty, a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it; this we take to be proof beyond a reasonable doubt, because if the law, which depends mostly upon considerations of a moral doubt, should go further than this and require absolute certainty, it would exclude circumstantial evidence altogether." Shaw, Ch. J., in Com. v. Webster, 5 Cush. 320, 52 Am. Dec. 711. § 269. The Phrase "Moral Certainty" Examined.— 'The phrase 'moral certainty' has been introduced into our jurispru- dence from the publicists and metaphysicians, and signifies only a very high degree of probability. It was observed by Puffendorf that, 'when we declare such a thing to be morally certain, because it has been confirmed by credible witnesses, this moral certitude is nothing else but a strong presumption grounded on probable reasons, and which very seldom fails and deceives us.' 1 Law of Nature & Nations (Eng. ed. 1749) chap. 2, § 11. 'Probable evi- dence,' says Bishop Butler, in the opening sentence of his Analogy, 'is essentially distinguished from demonstrative by this, that it admits of degrees, and of all variety of them, from the highest moral certainty to the very lowest presumption.' Proof 'beyond a reasonable doubt' is not beyond all probable or imaginary doubt, but such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof 'to a moral certainty' as distinguished from an absolute certainty. As applied to a ju- dicial trial for crime, the two phrases are synonymous and equiv- alent; each has been used by eminent judges to explain the other; and each signifies such proof as satisfies the judgment and con- sciences of the jury, as reasonable men, and applying their reason to the evidence before them, that the crime charged has been committed by the defendant, and so satisfies them as to leave uo other reasonable conclusion possible. . . . 'The evidence must establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and directs the understanding, and sat- 436 x LAW OF EVIDENCE IN CRIMINAL CASES. isfics the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond rea- sonable doubt; because if the law, which most depends upon con- siderations of a moral nature, should go further than this, and require absolute certainty it would exclude circumstantial evidence altogether.' See also Com. v. Goodwm, 14 Gray, 45. Baron Parke, in a case tried before him, expressed the same thought conversely, thus : 'Such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt.' Reg. v. Sterne, Surrey Sum. Assizes, 1843, cited in Best, Ev. §95. And instructions that the jury should be satisfied of the defend- ant's guilt beyond a reasonable doubt have often been held suffi- cient, without further explanation. Com. v. Tuttle, 12 Gush. 502; Com. v. Cobb, 14 Gray, 57; Com. v. Harman, 4 Pa. 269; Reg. v. White. 4 Fost. & F. 383 and note. . . . When sev- eral forms of expression are equally accurate, it is within the dis- cretion of the court at the trial to choose that form which it deems best adapted to make the rule of law intelligible to common minds. Kelly v. Jackson. 31 U. S. 6 Pet. 622, 8 L. ed. 523; Morris v. Bowman, 12 Gray, 467; Blake v. Sawm, 10 Allen, 340; State v. Reed, 62 Me. 129." Com. v. Costley, 118 Mass. 23. ij 270. Observations of Authority on the Term "Rea- sonable Doubt." — When the evidence is conflicting, it is error for the court to refuse to charge the doctrine of reasonable doubt. X. Y. Code Grim. Proc. §§ 389, 390; Spears v. State, 2 Tex. App. 244; May v. State, 6 Tex. App. 191; Mace v. State, 6 Tex. App. 47' K Snyder v. State, 59 Ind. 105; Whart. Horn. (2d ed.) § 649. Where the court, in defining what is a reasonable doubt, includes something which ought not, in fairness to the prisoner, to be included, a new trial should be granted. State v. Johnson, 16 Xev. 36; People v. Brenvn, 59 Gal. 345; Anderson v. State, 41 Wis. 430; Meyers v. Com. 83 Pa. 143; Castle v. State, 75 Ind. 146; State v. Sloan, 55 Iowa, 220. A reasonable doubt may not only arise out of the evidence, but may be the result of a want of evi- dence. Massey v. State, 1 Tex. App. 564; Densmore v.State,67 Ind. 306; Wright v. State, 69 Ind. 163, 35 Am. Rep. 212; Batten v. State, SO Ind. 394; Holmes v. State, 9 Tex. App. 313; State v. /.'"/•' r, 1 1 New 34s; Mixon v. State, 55 Miss. 527. A reasonable doubt exists when the evidence is not sufficient to satisfy the judgment of the truth of a proposition with such certainty that a REASONABLE DOUBT. 437 prudent man would feel safe in acting upon it in his own impor- tant affairs. Arnold v. State, 23 Ind. 170; State v. Reed, 62 Me. 142; Miles v. United States, 103 TJ. S. 304, 26 L. ed. 481; Com. v. Costley, 118 Mass. 16; People v. Finley, 38 Mich. 482; Mc- Gulre v. People, 44 Mich. 286, 38 Am. Rep. 265; State v. Bridges, 29 Kan. 138; State v. Sumrru rs, !< West. L. J. 415. • Nor is it an answer to what has been said, that the aggregated common sense of the twelve jurors is to determine when a juror is "able to give some reason" for his doubt. It is not necessary he should be able to do so even to his own satisfaction. 1)> nsmore v. State, Wright v. State, Anderson v. State and Meyers v. Com. supra; People v. Ah Sing, 51 Cal. 372; Bishop, Crim. Proc. § 1094; People v. Schryer, 42 N. Y. 6, 1 Am. Rep. 480; People v. McCann, 16 N. Y. 58. 69 Am. Dec. 642. ^ 271. Yiews of the Missouri Supreme Court. — Without attempting to clothe the decisions of the Missouri supreme court witli any extra-territorial effect, or to impute to them any special- ized virtue, we may still insist that the exceptional mental equip- ment of that court imparts to its decisions a very high degree of legal certitude. Its expositions of the law have been rarely questioned, and the identical topic under review has been the subject of very recent consideration. In order to italicise a dis- tinction of great importance, I excerpt from the opinion of Chief Justice Henry in the case of State v. Shaefft r. 89 Mo. 271. which was handed down in 1886, and faithfully represents the present status of the law relating to the subject, not only in the state of Missouri but throughout our entire federation. The argument unfolds itself with all the precision and certainty of a mathemat- ical demonstration. " The burden of proof to establish the guilt of defendant de- volves upon the state, and the law clothes him with a presump- tion of innocence which attends and protects him until it is overcome by testimony which proves his guilt beyond a reasonable doubt. By a reasonable doubt, is meant a substantial doubt, based upon the evidence or want of evidence in the case, and is not a bare possibility of defendant's innocence." This instruction was approved and declared to be the law in all criminal cases. State v. Gonee, 79 Mo. 600. In a subsequent case the court was obliged to encounter the same question and reverse a conviction in a criminal case because -JroS LAW OF EVIDENCE IN CRIMINAL CASES. of a slight departure on the part of the trial court from the well recognized instructions previously given, as to what constitutes reasonable doubt. The court employs the following language : " 'In law a party accused of crime is presumed to be innocent until the contrary is proven beyond a reasonable doubt. If, therefore, upon a consideration of all the evidence in this cause you entertain a reasonable doubt as to the guilt of defendant you will arive him the benefit of such a doubt and find him not guilty. In applying the rule as to reasonable doubt you will be required to acquit if all the facts and circumstances proven can be reasonably reconciled with any theory other than that the de- fendant is guilty; or to express the same idea in another form, if all the facts and circumstances proven before you can be as rea- sonably reconciled with the theory that the defendant is innocent as with the theory that he is guilty, you must adopt the theory most favorable to the defendant, and return a verdict finding him not guilty. You will observe, however, that the doubt to author- ize an acquittal on that ground alone must, as stated, be reasonable and must be also one fairly deducible from the evidence consid- ered as a whole.' "The mere possibility that the defendant may be innocent will not authorize an acquittal. It declares very properly 'that one accused of crime is presumed to be innocent until the contrary is proven beyond a reasonable doubt. If therefore, upon a consid- eration of all the evidence in this case you entertain a reasonable doubt of the guilt of the defendant, you will give him the benefit of such doubt and find him not guilty. ... In applying the rule as to reasonable doubt you will be required to acquit if all the facts and circumstances proven can be as reasonably reconciled with the theory that the defendant is innocent as with the theory that he is guilty; you must accept the theory most favorable to the defendant and render a verdict finding him not guilty.' This attempted explanation of the term 'reasonable doubt' would elim- inate it from the criminal code, and leave juries to find verdicts in criminal cases upon the mere preponderance of the evidence. By that explanation the benefit of a reasonable doubt in criminal - is no more than the advantage a defendant has in a civil case. The doctrine expressed in this explanation is exactly that which is applicable in a civil action, in which, if the facts proven can be reasonably reconciled with the theory that the defendant REASONABLE DOUUT. 439 owes what he is sued for as that he does not, the defendant is entitled to a verdict. The plaintiff must make out his case and if the evidence is evenly balanced he cannot recover." State v. Shaeffer, SO Mo. 282. § 272. Extended Citation of Authorities.— Innumerable decisions illustrate the attitude of the American judiciary towards this important subject. Our criminal annals contain many expositions of the governing rule. And still with all this reiterated announcement of what that rule embodies and with solemn and oracular warnings of what fatal results follow its want of observance, it is a frequent spectacle to see the convictions of undoubted criminals set aside, justice frustrated, law brought into disrepute, because of attempted innovations upon the phrase- ology of the rule regarding reasonable doubt. There is but little difficulty in the application of this rule when once its formula is cordially accepted and the court ceases to struggle for originality in cases where precedent should alone govern. Very deliberate consideration is required in order to reach this desired formula and a statutory definition is perhaps the most effective evasion of the discordant syntax of the present embarrassment. As indicating the present contradiction that pre- vails in this mere matter of definition we will cite a formidable array of authority collected from both the Federal and state de- cisions. Kennedy v. People, 40 111. 4SS; Howard F. & M. Ins. Go. v. Corniek, 24 111. 455; Springdale Cemetery Asso. v. Smith., 24 111. 480; Pate v. People, 8 111. 661; Warren v. Dickson, 27 111. 115; State v. Kearley, 26 Kan. 77; Miles v. United States, 103 U. S. 31)4, 26 L. ed. 481; McKleroy v. State, 77 Ala. 95; Hamilton v. People, 29 Mich. 194; People v. Steubenvoll, 62 Mich. 329, 8 Crim. L. Mag. 265; Com. v. Tuttle, 12 Gush. 502; Com. v. Cobb, 14 Gray, 57; Bramlette v. State, 21 Tex. App. 611, 57 Am. Rep. 622; Schultz v. State, 20 Tex. App. 316; State v. Dineen, 10 Minn. 4<>S; State v. Nelson, 11 Kev. 331; People v. P/iipps, 39 Cal. 326; People v. Padillia, 42 Cal. 536; Com. v. CosUey, 118 Mass. 1; State v. Vansant, 80 Mo. 67; Dunn v. People, 109 111. ■635; Sullivan v. State, 52 Ind. 309; State v. P'r roe, 65 Iowa, 89; Munich v. People, 8 Colo. 454; James v. State, 45 Miss. 572; People v. Ashe, 44 Cal. 288; State v. Bridges, 2!) Kan. 138; State v. Hayden, 45 Iowa, 17; Polin v. State, 14 Neb. 540; United 440 LAW OF EVIDENCE IN CRIMINAL CASES. Stales v. Jackson, 29 Fed. Kep. 503; Jane v. Com. 2 Met. (Ky.) 30; State v. Oscar, 52 N. C. 305; Ray v. State, 50 Ala. 104; Bradley v. -State, 31 Ind. 492; State v. Crawford, 34 Mo. 200; Garfield v. -State, 74 Ind. 60; -Sta?^ v. -State, 90 Ind. 1; Connag- han v. People, 88 111. 460; United States v. Johnson, 26 Fed. Eep. 682; -State v. Rounds, 76 Me. 123; -State v. Reed, 62 Me- 192; Blocker v. -State, 9 Tex. App. 279; State v. Ostrander, 18 Iowa, 437; J/ay v - People, 60 in - 119 ; J^Kfor v. People, 39 111. 457; State v. 67ee, 85 Mo. 647; Com. v. 6Wy, 2 Brewst. 404; Cicely v. -State, 13 Smedes & M. 202; Me Quire v. People, 44 Mich. 286, 38 Am. Rep. 265; Bray v. tftate, 41 Tex. 560; State v. 0wera«, 79 Mo. 620; -State v. Smith, 21 Mo. App. 595; People v. Zmtey, 38 Mich. 482; McMeen v. Cbm. 114 Pa. 300; Donnelly v. -State, 26 N. J. L. 602; State v. ^1A Zee, 7 Or. 237; United States v. Foulke, 6 McLean, 349; McElven v. -State, 30 Ga. 869; Zteteft v. -State, 20 Neb. 492, 57 Am. Eep. 835; People v. Davis, 64 Cal. 440; -State v. Willingham, 33 La. Ann. 537; Bressler v. People, 117 111. 422; Sumrier v. -State, 5 Black! 579, 36 Am. Dec. 561; Leigh v. People, 113 111. 372; Com. v. Zw&, 9 Met. 93, 43 Am. Dec. 373; Mullins v. People, 110 111. 42; Marion v. -State, 16 Neb. 349; Brady v. Om. 11 Bush, 282; Davis v. Peo- ple, 114 111. 86; -State v. Garland, 90 N. C. 668; -State v. TO&s, 63 N. C. 26; Pe^te v. Rodrigo, 69 Cal. 601; People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642; Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485; -State v. Buckley, 40 Conn. 246; Powers v. -State, 87 Ind. 145; lludelsonv. State, 94 Ind. 420, 48 Am. Rep. 171; O'JVeilv. State, 48 Ga. 6Q-, Adams v. -State, 29 Ohio St. 412;. Stitz v. -State, 104 Ind. 359; State v. Witt, 34 Kan. 488; Com. v. Tucy, 8 Cush. 1. CHAPTER XXXVII. EVIDENCE OF MALICE, MOTIVE, PREMEDITATION AND INTENT. § 273. Malice Defiant. 274. May be Expressed or Implied. 275. How Proved. 27G. Burden of Proof as to. 277. Intoxication as Affecting Malice. 278. Legal Significance of the Term "Motive.''* 279. Term "Motive" Defined. 280. Collateral Fads in Relation to Motive. 281. Any Proof Suggesting Mat ice is Relevant. 282. What is Implied by the Term "Premeditation" 283. Wide Range of the Evidence as to Premeditation. 284. Statement of the Rule as to Criminal Intent. 285. Intent, how Proved. 286. Presumption as to. 287. Prosecution may Show Evil Intent. 288. Accused may Testify as to his Intent. 289. Digest Form of the Present Rule. 290. Wlien Conviction may be Had in the Absence of Criminal Intent. 291. Time not Necessary to Form Criminal Intent. 292. Review of the Authorities. § 273. Malice Defined. — Malice in legal contemplation signifies a wrongful act perpetrated without reasonable cause and the intention with which the act is done is an inference of law based upon a well known presumption that the man shall be regarded as intending the legitimate results of his act. United States v. Cof- fin, 1 Sumn. 394; Maynard v. Fireman's Fund Ins. Co. 34 Cal. 48, 91 Am. Dec. 672; Wiejgin v. Coffin, 3 Story, 7; People v. Taylor, 36 Cal. 255; Woiiey v. State, 11 Humph. 172; Ha ins v. State, 58 Ga. 35; Williams v. State, 3 Tex. App. 31(1; Beauchamp v. State, 6 Blackf. 299; Plasters v. State, 1 Tex. App. 673; Los- sen v. State, 62 Ind. 437; McCoy v. State, 25 Tex. 3:5, 78 Am. Dec. 520; State v. Hays, 23 Mo. 287; Lander v. State, 12 Tex. 462; Com. v. Oooehviu, 122 .Mass. 19; Com. v. Green, 1 Ashuu. 441 412 LAW OF EVIDENCE IN CRIMINAL CASES. 289; State v. Town, Wright (Ohio) 75; United States v. Taylor, 2 Sumn. 586; Reg. v. Selten,'ll Cox, C. C. 674; Blunt v. Little, 3 Mason, 102; i?ea> v. Philp, 1 Moody, C. C. 264; United States v. Outerbridge, 5 Sawy. 620; Bromage v. Prosser, 4 Barn. & C. 247. See also 1 Russell, Crimes (9th ed.) 667; 1 Whart. Am. Crim. L. (8th ed.) §§ L06, 122; 1 Bishop, Crim. L. (6th ed.) 429; 4 Bl. Com. 190; 1 Archb. Crim. Pr. & PL 368. § 274. May be Expressed or Implied. — Actual proof of inten- tion is not always needed. Malice, the essence of all crime, may be expressed or implied. Brown v. Com. 76 Pa. 319. Nor is it indispensable to a conviction that a motive be proved. People v. Robinson, 1 Park. Crim. Kep. 649; State v.Lapage, 57 N. H. 245, 2 1 Am. Kep. 69. § 275. How Proved. — "Malice is proved in the same manner as intent — from the admissions or the overt acts of the offender. It may generally be inferred from the nature of the act itself. If a man do an act which cannot be of any benefit to himself or to those with or for whom he is acting, and which must neces- sarily be of injury to another person, . . . the jury will be warranted in inferring that the act was done from malice to the owner or party injured. "Malice may also be implied where no malice against any par- ticular person in fact existed. Even in murder, which is the highest offense of this class, in which malice forms a most mate- rial ingredient, and where the malice must be preconceived, malice may in this way be implied, although none actually existed as against any particular person. . . . So where a person tires a loaded pistol among an assembly of persons, or in the public streets where many persons are passing, and thereby kills a man, or the like, he is guilty of murder. So, in all other cases where a man willfully does an act which he knows must, or probably will, cause the death of another whom he knows not, and a man is thereby killed, he is guilty of murder, in the same manner as if he bad preci >ncei\ ed malice against the individual killed." Archb. Crim. Pr. & PL chap. 4, p. 121. So malice may be proved by direct evidence, such as prior threats, or seeking an opportunity to perpetrate the act. This is called express malice, and proof of such malice in this case would be evidence of premeditation, and would make the case murder in the first degree, if otherwise made out beyond a reasonable EVIDENCE OF MALICE, MOTIVE, PREMEDITATION AND INTENT. 443 ■doubt. Malice may also be implied from the act of killing, as if the killing is done purposely and without justification, legal excuse or reasonable provocation. And if the act is perpetrated with a deadly weapon so used as to be likely to produce death, the pur- pose to kill may be inferred from the act. Boyle v. /State, 105 Ind. 469, 55 Am. Hep. 218. When the scienter or quo animo becomes an essential factor in the problem of guilt or innocence to be solved, when proof of malice becomes indispensable to a conviction, such evidence of other like acts may then be competent. Whart. Am. Crim. L. 649. It is so when proof of the motive becomes peculiarly mate- rial on account of some peculiarity of the crime, or its dependence •on some peculiar motive, when the act is innocent as a rule, and its criminality the exception. State v. Lajpage, 57 N. H. 245, 24 Am. Pwep. 69. § 276. Burden of Proof as to. — Where the commission of a homicide by the defendant is proved, the law presumes it to have "been done with malice, and the burden of proving circumstances of mitigation, or that justify or excuse it, devolve upon him, unless the proof on the part of the prosecution tends to show that it only amounted to manslaughter, or that the defendant was jus- tifiable or excusable. People v. Bush, 71 Cal. 602; Thomas v. People, 67 N. Y. 218; State v. Lautenschlager, 22 Minn. 514; Meyers v. Com. 83 Pa. 131; State v. Zeibart, 40 Iowa, 169. § 277. Intoxication as Affecting Malice. — In State v. John- son, 40 Conn. 136, to convict of murder in the first degree it was necessary to show willful, deliberate intent and actual malice. The court said: "But the real question is, whether drunkenness, as a fact, may be considered by the jury as evidence tending to disprove an essential fact in the case, a deliberate intention to take life." Upon the question of malice, ''the state of the prison- er's mind is material. In behalf of the defense, insanity, intoxi- cation or any other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, not in mitigation of punishment, but as tending to show that the less and not the greater offense was in fact com- mitted.'" Lancaster v. State, 2 Leigh, 575, 3 Am. Crim. Rep. 160, note. If defendant was at the time of committing the act intoxicated, 444 LAW OF EVIDENCE IN CRIMINAL CASES. the jury will consider that fact as an evidence tending to show an abBence of premeditation or deliberation. New York Code Crira. Proc. title 1, p. 5, § 22; 1 Whart. Am. Crim. L. § 41; Halle v. State, 11 Humph. 154; Com. v. Jones, 1 Leigh. 598; PiHle v. State, 9 Humph. 003; Swan v. State, 4 Humph. 136; Boswell v. Com. 20 Gratt. 860; Lancaster v. State, 2 Lea, 575; Schlencker v. State, 9 Neb. 241; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484; People v. Belencia, 21 Cal. 544; Ferrell v. /State, 43 Tex. 503; CbZfctfA v. State, 2 Tex. App. 391; Whart. Horn. § 587, et S( '/.: Com. v. Dorsey, 103 Mass. 412; Kelly v. CW. 1 Grant, Cas. 484; Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414; Jones v. Com. 75 Pa. 403; State v. Johnson,*® Conn. 136; People v. TTOiaww, 43- Cal. 344; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558; Peo- ple v. Ferris, 55 Cal. 588; People v. Harris, 29 Cal. 678; People v. Batting, 49 How. Pr. 392; Flanigan v. Pt^te, 86 N. Y. 554, 40 Am. Rep. 556. If defendant, at the time of committing the act, was in a state of mental confusion, of which drink was the cause, the jury will consider the same as evidence tending to show that there was no specific intent to take life, or that there was no p< »sitive premeditation. Whart. & S. Medical Jurisprudence, § 70, note s.; Whart. Horn. 371. A refusal to charge on a trial for murder, that intoxication absolutely tends to show absence of premeditation and deliberation is not error. People v. Mills, 98 N. Y. 176. § 278. Legal Significance of the Term "Motive."— The law recognizes the principle that men are impelled to commit crimes from some motive. There are, indeed, few motiveless crimes, and among the motives impelling men to crime is that of gain. In a thoughtful and philosophical treatise it is said: "As there must pre-exist a motive to every voluntary action of a rational being, it is proper to comprise in the class of moral indications such par- ticulars of external relation as are usually observed to operate as inducements to commission of crime" and among; the motives that influence human conduct this author classes that of gain. Wills,. Circ. Ev. 39. Another author says: "In looking at the motives which insti- gate human conduct, we ascend to the very origin of crime." Burrill, Circ. Ev. 281. At another place this author says: "The motive of gain, in the stricter sense of the term, may be excited by two different classes of objects, first, by something visible and EVIDENCE OF MALICE, MOTIVE, PREMEDITATION AND INTENT. 445 tangible, which the party meditating the crime desires to possess; and, secondly, by some substantial benefit which is expected to accrue as the result of the contemplated act." Burrill, Circ. Ev. 285. The case of State v. Colin, 9 Nev. 179, supplies an illustration of the practical application of these principles. In that case the appellant was charged with arson, and it was held that evidence of over-large insurance upon his goods was competent "to show a possible or probable motive, such motive being a material link in the chain of circumstances." In the course of the opinion in that case it was said: "Now, it is not a natural thing for a man to tire his own premises; presumptively appellant was innocent. What then is the logical and natural course of human thought at such a juncture? Is it not to inquire what motive, if any, existed which could have influenced a sane person to do such an act? Such was the course pursued by the prosecution, the motive was sought, and by it claimed to be found in the fact of an undue insurance; not only a perfectly proper proceeding, but indeed the only one open." The same principle is declared in Com. v. Hudson, 97 Mass. 565, and in Shepherd v.Peoph . 1!> X. Y. 537. In this last case Denio, ■/., speaking for the court, said: "The prisoner's house had been burned and he was charged, upon circumstantial evidence, with having set it on lire. Prima facie he had no motive for the act, but a strong pecuniary one against it. But if he had a contract of indemnity, and especially if under it he might probably obtain more than the value of the property, the case would be quite dif- ferent." Mr. Bishop says: "Evidence that the insurance was for more than the worth of the building is pertinent; also, that the defend- ant attempted to procure payment of what was thus excessive." 2 Bishop, Crim. Proc. § 50. These cases are in harmony with the general rule which that author thus states: "Hence proof of motive is never indispensable to a conviction. But it is always competent against the defendant." 1 Bishop, Crim. Proc. § 1107; Wills, Circ. Ev. 41; Goodwin v. State, 96 Ind. 550, 560. While it is competent to prove facts tending to show an evil motive, yet such facts are always susceptible of explanation. Motive is but a circumstance, and it is always proper to explain the act which is adduced as evidence of a wicked motive. § 279. Term "Motive" Defined. — "Motive is an inducement, 446 LAW OF EVIDENCE IN CRIMINAL CASES. or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act r which has heen clearly proved, but from the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which admin- isters it, has any concern. It is in cases of proof by circumstan- tial evidence that the motive often becomes not only material, but controlling, and in such cases the fact from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case." Church, Ch. J., in People v. Bennett, 49 N. Y. 137. In criminal prosecutions it is always competent for the state's attorney to show that the motive for the offense was the hope of gain. Kennedy v. People, 39 N. Y. 245. § 280. Collateral Facts in Relation to Motive. — "Evidence of collateral facts which may appear to have presented a motive for a particular action deserves per se no weight. With motives merely the legislator and the magistrate have nothing to do;, actions, as the objects or results 'of motives, are the only legiti- mately cognizable subjects of human law. Actus non facit reum nisi mens sit rea is a maxim of reason and justice not less than of positive law. Motives and their objects differ, it has been re- marked, as the springs and wheels of a watch differ from the pointing of the hour, being mutually related in like manner. But such evidence is most pertinent and important when clearly connected with declarations which demonstrate that the particu- lar motive has passed into action, or with inculpatory moral facts which it tends to explain and co-ordinate, and which would oth- erwise be inexplicable." Wills, Circ. Ev. 42. "On a late trial for murder, Lord Chief Justice Campbell thus summed up the doctrine under discussion : 'With respect to the alleged motive, it is of great importance to see whether there was a motive for committing such a crime, or whether there was not;. or whether there is an improbability of its having been commit- ted, so strong as not to be empowered by positive evidence. But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from the experience of criminal courts, that atrocious- EVIDENCE OF MALICE, MOTIVE, PKEMEDITATION AND INTENT. 447 crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuni- ary advantage, and to drive off for a time pressing difficulties.' " Wills, Circ. Ev. 44. § 281. Any Proof Suggesting Motive is Relevant.— Proof tending to show that the deceased had money, suggests a motive for committing a robbery, and so a motive to take the life of the deceased, if that would facilitate the theft, or contribute to its- concealment. Such a fact formed a prominent circumstance, tending to the conviction of the prisoner, in Gordon v. People^ 33 N. Y. 501, and was not suggested as of doubtful admissibility in that case, and the court, in Hendrickson v. People, 10 N. Y. 1.3, went much further in sustaining the admission of evidence, tending, as was claimed, to show a motive for the commission of the crime charged, by receiving the testimony, which, at must, only showed that the prisoner had a diminished interest in the continuance of his wife's life. It is always a just argument, on behalf of one accused, that there is no apparent motive to the perpetration of the crime. Men do not act wholly without mo- tive. On the other hand, proof of motive tends, in some degree, to render the act so far probable as to weaken presumptions of innocence, and corroborate evidence of guilt. § 282. What is Implied by the Term "Premeditation."— Premeditation implies beforehand, or previous deliberation, and while all this must transpire before the fatal act, by some appre- ciable space of time, yet no particular length of time is required. If there be time for choice as the result of reflection that is suffi- cient. The mental processes are so swift that premeditation may be found to exist within the very shortest time. United States v. King, 34 Fed. Rep. 302. Premeditation differs essentially from will, which constitutes crime, because it supposes, besides an actual will, a deliberat i< »n and a continued persistence which indicates mere perversity. Bouvier, Law Diet, title Premeditation. "Willful, deliberate and premeditated, are merely cumulative and expressive of the same idea {People v. Pool, 27 Cal. 5 72. See McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93), and standing in the relation to the offense of murder is a conclu- sion of law drawn from certain facts. People v. Jacinto Aro, 6 Cal. 207; State v. Crosier, 12 Nov. 300; Judge v. State, 58 Ala. 44:8 LAW OF EVIDENCE IN CRIMINAL CASES. 406; King v. Com. 2 Ya. Cas. 78; Rex v. Shaw, 6 Car. & P. 372. But premeditation will not be implied from the use of a deadly weapon. Clark v. State, 8 Humph. 671. ISo appreciable time need intervene between the premeditated intent and the homicidal act. People v. Nichol, 34 Cal. 211; People v. Williams, 24 Cal. 31, 43 Cal. 344; Miller v. State, 54 Ala. 155; Jones v. Com. 75 Pa. 403, 1 Am. Crim. liep. 262; Peo- ple v. Cotta, 4'.' Cal. L69; Halbert v. State, 3 Tex. App. 656; State v. Z>wm, 18 Mo. 419; Green v. State, 13 Mo. 382; State v. Hays, 23 Mo. 287; State v. Garrand, 5 Or. 216; ,S7«te v. Hohnes, 54 Mo. 153; People v. Bealoba, 17 Cal. 389; State v. Johnson, 8 Iowa, 525, overruling Fonts v. State, 4 CI. Greene, 500. See Com. v. £ra^, 1 Ashm. 289; State v. Millain, 3 New 409; Zero's v. State, 3 Head, 127; and see Bmns v. State, 66 Ind. 433; Bean- champ v. State, Blackf. 299; Fahnestock v. State, 23 Ind. 231; ffi i mm v. <%//'. 44 Pa. 55, 84 Am. Dec. 414; McKenzie v. State, 26 Ark. 334; State v. Jennings, 18 Mo. 435; Z>«< M< v. State, 1 Tex. App. 159; Wright v. />W//>, 22 Gratt. 880. A momentary de- liberation may suffice. Duebbe v. State, supra. The reflection and premeditation may take place even at the moment of com- mitting the act, and, like any other fact, may be proved by cir- cumstances which exclude every reasonable doubt. Whiteford v. Com. 6 Rand. (Ya.) 722; Com. v. Jones, 1 Leigh, 611; People v. Clark, 7 K Y. 385; Com. v. York, 9 Met. 93, 43 Am. Dec. 373; Shoemaker v. State, 12 Ohio, 43; PeopU v. Freel, 48 Cal. 436; O'Brien v. People, -^ Barb. 274: State V. ZV>m, IS Mo. 419; State v. Holme, 54 Mo. 153; State v. Johnson, 8 Iowa, 525, 74 Am. Dec. 321; Lewis v. State, 3 Head, 127; DonneUan v. Com. 7 Bush, 070; State v. Ah Lee, 8 Or. 214; see Burgess v. Com. 2 Ya. Cas. 488.; Desty, Am. Crim. L. § 129 note K. § 283. Wide Range of the Evidence as to Premedita- tion. — Premeditation of crime, or the means to do it with, may precede the bare act of it a long time. Hence, evidence of them ma}- seem to take a wide range in both time and space. Buying poison may be shown, or stealing it, no doubt, with burglary and arson, perhaps; it may be a witness of a former crime, or ajjarti- eeps criminis liable to turn state's evidence, who is put out of the way; prior like attempts on the same person or thing, or like crimes on other persons, Outstanding in similar relations and giv- ing rise to the same motives; sexual crimes or acts indicating a EVIDENCE OK MALICE, MOTIVE, PREMEDITATION AND INTENT. 449 ■desire of change in marriage relations — in all these cases, and many more found in the books, a prior crime may be disclosed; but in all of them this disclosure is a mere incident, not an ele- ment or the burden of the evidence. And this we understand to be the true rule and spirit of all the authorities. State v. Lapacje, 57 N. H. 245, 24 Am. Rep. 69. § 284. Statement of the Rule as to Criminal Intent. — It is a general proposition previously adverted to, that the rules of evidence in civil cases apply with equal force in the investiga- tion of criminal offenses; but in such investigation many rules are in vogue which are not recognized in civil causes. For instance: "A cardinal doctrine of criminal law is, that it is the intention with which an act is done, that constitutes its criminality. The intent and the act must both concur, t<> constitute the crime; and, hence, the intent must be proved, like the other material facts in the case. This proof may be either by evidence, direct or indi- rect, tending to establish the fact, or by an inference of law, from other facts proved. Thus, where an act, in itself indifferent, be- comes criminal, if done with a particular intent, there the intent must be proved and found, but, if the act is in itself unlawful, the law implies a criminal intent/' Haines, Justices of Peace, <;s7, citing 3 Greenl. Ev. £ 13. Guilty knowledge, or guilty intent, is. in general, an essential element in crimes at common law; but, whether a criminal intent, or a guilty knowledge, is a necessary ingredient of a statutory offense is a matter of construction, to be determined from the language of the statute, in view of its manifest purpose and de- sign. Com. v. Weiss, 11 L. 11. A. 530, 139 Pa. 247. § 285. Intent, how Proved. — The state is not expected, and cannot be required, to make proof of felonious intent, as a fact, by direct and positive evidence; for, as a general rule, men who do or commit acts which the law denounces as public offenses do not proclaim in public places the intent with which such acts are done. If the state were required to make direct and positive proof of the felonious intent which characterizes the act done as a public offense, the result would be that many persons, charged and guilty of public crimes, would go acquitted, "unwhipt of justice." Therefore all that the state; is required to do, in such cases, is to introduce such evidence on the trial of the cause as 29 450 LAW OF EVIDENCE IN CRIMINAL CASES. will satisfy the triers of the facts, whether court or jury, beyond a reasonable doubt, not only that the act was done by the defend- ant, but that it was done with the felonious intent charged in the indictment. Padgett v. State, 103 Ind. 550. AY hen it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence for the purpose of showing its true char- acter. 1 Phil. Ev. (Gould's ed.) 231. But to render the declara- tion competent, the act with which it is connected should be pertinent to the issue; for where the act is in its own nature irrel- evant, and when the declaration is per se incompetent, the union of the two will not render the declaration admissible. Wright v. Doe, 7 Ad. & El. 313. A man's intention must be judged by his acts and expressions; and it is manifested by circumstances that vary with almost every case that is presented for consideration. The general rule to determine what he intends by his acts is, that a man intends that consequence which he contemplates, and which he expects to result from his acts, and he therefore must be taken to intend every consequence which is the natural and immediate result of any act which he voluntarily does. 2 Stark. Ev. 573; State v. Da- vis, 38 K J. L. 176. § 286. Presumption as to. — A sane man must be presumed to contemplate and intend the necessary, natural and probable consequences of his own acts. 3 Greenl. Ev. §§ 13, 14; Bex v. Farrington, Kuss. & E. 207; Com. v. Webster, 5 Cush. 305, 52 Am. Dec. 711. But when the intent is the gist of the crime, this presumption, though a very important circumstance in making the proof necessary upon this point to convict, is not conclusive nor alone sufficient, and should be supplemented by other testi- mony to avoid a reasonable doubt. People v. Sweeney, 55 Mich. 586. "The law infers an intent to do what a party does do. If I come to one of you and draw a pistol and shoot you, it infers that I intended t<> kill you, if you die from the wounds." "Westbrook, J., in People v. Batting, 49 How. Pr. 392. Persons of sound mind and discretion must, in general, be understood to intend, in the ordinary transactions of life, that which is the necessary and unavoidable consequences of their acts, EVIDENCE OF MALICE, MOTIVE, PREMEDITATION AND INTENT. 451 as they are supposed to know what the consequences of their acts will be in such transactions. Experience has shown the rule to be a sound one and one safe to be applied in criminal as well as civil cases. Exceptions to it undoubtedly may arise, as where the consequences likely to flow from the act are not matters of com- mon knowledge, or where the act or the consequence flowing from it is attended by circumstances tending to rebut the ordinary pro- bative force of the act or to exculpate the intent of the agent. First Nat. Bank of Clarion v. Jones, SS U. S. 21 Wall. 325, 22 L. ed. 542. It often occurs in human experience that the mere fact that a particular act has been done affords the best evidence of the motive or intention with which it was done. State v. Teeter, 69 Iowa, 717. This rule is always applied, unless from the circumstances of the case, it affirmatively appears that the will of the actor was subordinated to some controlling and irresistible cause precluding the existence of any voluntary mental action. In Starkie on Evi- dence it is said, "that a rational agent must be taken to contem- plate and intend the natural and immediate consequences of his own act, is a presumption so cogent as to constitute rather a rule of law than of mere evidence." Yol. 2, p. 818. "There is a general presumption in criminal matters that a person intends whatever is the natural and probable consequences of his own action." 1 Phil. Ev. 632. It was said by Judge Andrews that "it is a fundamental rule of evidence of very general application, founded upon obser- vation and experience, that a man is presumed to intend the natural consequences of his act." Foster v. People, 50 N. Y. 609, § 287. Prosecution may Show Evil Intent. — It is always competent for the government to introduce evidence of any facts tending directly to show an evil intent, or from which such evil intent may be justly and reasonably inferred; but all proof in relation to transactions not intimately and directly connected with the particular accusation against the defendant, or with the evi- dence, or in necessary explanation of the evidence introduced in support of the charge contained in the indictment, is irrelevant and inadmissible. Com. v. Tuckerrnan, 1<> Gray, L98. Evidence should have a peculiar and intimate, if not also an inseparable connection with, and tendency to explain and characterize, the act in issue charged against the prisoner. 452 LAW OF EVIDENCE IN CRIMINAL CASES. So, in Com. v. Campbell, 7 Allen, 542, it was held that such evidence is inadmissible where the offense charged and that offered to be proved are distinct. State v. Lapage, 57 N. II. 245, 24 Am. Rep. 69. No doubt, where guilty knowledge is an ingredient of the offense, the knowledge must be found; but actual positive know- ledge is not usually required. In many cases, to require this would be to nullify the penal laws. The case of knowingly pass- ing counterfeit money is an illustration; very often the guilty party has no actual knowledge of the spurious character of the paper, but he is put upon his guard by circumstances which, with felonious intent, he disregards. Another illustration is the case of receiving stolen goods, knowing them to be stolen; the guilt is made out by circumstances which fall short of bringing home to the defendant actual knowledge. He buys, perhaps, of a notori- ous thief, under circumstances of secrecy, and at a nominal price, and the jury rightfully hold that these circumstances apprise him that a felony must have been committed. And reins v. People, 60 111. 354; Schriedley v. State, 23 Ohio St. 130; Bunker v. Peo- ple, 37 Mich. 4. § 288. Accused may Testify as to his Intent. — Much of the misconception of uncertainty that pervades the right of a party to testify as to his intent, has been dispelled by a late decision of the New York court of appeals. The question is far removed from any approach to certainty, and in the New York case, three of the judges are recorded as dissenting. Still, the majority opin- ion written by that eminent jurist who is now the chief judge of that celebrated court must be regarded as tending to settle a con- troversy that is always perplexing and quite apt to result in gross injustice. The case referred to is that of People v. Baker, 96 N. Y . 340. The extract from the opinion will disclose the pertinency of the case to the subject we are endeavoring to illustrate. "The defendant as a witness in his own behalf was permitted to ft stify that he did not, at the time he received the $575, intend to defraud Meeker. He was also asked this question, 'Was your intention when you received moneys from time to time from Meeker, to defraud him?' That was objected to as incompetent and inadmissible, and the objection was sustained. As the intent with which those moneys were received was one of the material inquiries he should have been permitted to show that he did not EVIDENCE OF MALICE, MOTIVE, PREMEDITATION AND INTENT. 453 receive them with any fraudulent intent. The case went to the jury in such a way as to enable the people to claim, that not only the $575 was received by the defendant with the intent to defraud Meeker, but that all the other moneys were received in the same way, and that the receipt of all the moneys had a tendencv to show with what intent the $575 Mas received; and hence the defendant clearly had the right to show that he had no fraudulent intent in receiving any of it. "The defendant, after answering that at the time he received the $575 he did not intend to defraud Mei'ker, was also asked to state his intention at the time he received it. and the question was objected to on the part of the people, and the objection was sus- tained. AVe think that ruling was also erroneous. Upon the facts of the case as they were developed at the trial, it was claimed by the defendant that when he received the s575 it was his inten- tion to replace the stock to respond to Meeker whenever called upon for the stock, and that he was at the time able to do so. That was a theory he had a right to prove if he could, and the proof would bear upon the final issue whether he intended to cheat and defraud him, and hence he should have been permitted to answer the question. " The judge charged the jury as follows : 'If yon find that the defendant made the representations charged in the indictment, and that they were false, and that the defendant knew they were false when he made them, then the law presumes the fraudulent intent.' That portion of the charge was objected to by the de- fendant and we think the exception well founded. The crime of false pretenses is not made out by simply showing that the repre- sentations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from those facts and from all the other facts, may infer a fraudulent intent; but the law does not presume a fraudulent in- tent; that is to be found as a fact by the jury, and is not an infer- ence of law."' Judge Thompson says: ''It has been held, on the trial of an indictment for an assault and battery with intent to commit a rape, that the accused might testify as to what his intention was in the commission of the assault and battery. So, on the trial of an indictment for larceny, it is competent for the defendant to testify as to what his intention was at the time the goods came 454: LAW Ob' EVIDENCE IN CKIHIWAL CASES. into his possession. So, where the question concerns the intent with which an assignment of property has been made, it is com- petent for the assignor to testify what his intentions were. So, where the validity of a deed, or of an official act, is in question, it is competent for the grantor to testify that he executed it in good faith. And in general, it may be stated that, where the intent is an essential element in the charge of crime, the prisoner has the right to testify as to intent in doing the act. Kor is it necessary to the operation of the rule that the witness should be a party to the action. More broadly, the rule is, that where the motive of the witness, in performing a particular act or making a particular declaration, becomes a material issue in the case, or reflects im- portant light upon such issue, he may himself be sworn in regard to it, notwithstanding the difficulty in furnishing contradictory evidence, and notwithstanding the diminished credit to which his testimony may be entitled as coining from the mouth of an inter- ested party. Some courts, however, hold that, where a party takes the stand as a witness in his own behalf in civil and crimi- nal cases, it is incompetent for him to testify as to an uncommu- nicated opinion, belief or motive on which he acted. It is clear that a part}- cannot be allowed to testify to his undisclosed intent in order to alter the effect of that which was matter of contract, representation, or estoppel, on which the other party had a right to rely. " 1 Thomp. Trials, § 383, citing Greer v. State, 53 Ind. 420; White v. State, 53 Ind. 595; Watkins v. Wallace, 19 Mich. 57; Thacher v. Phinney, 1 Allen, 146; Cortlandt County Snj>t. of Poor v. Herkimer County Supt. of Poor, 44 N. Y. 22; Ker- rains v. 7\ ople, 60 N. Y. 221, 14 Am. Rep. 158; People v. Baker, 96 X. Y. 34o; Seymour v. Wilson, 14 JN". Y. 567; Homans v. Corning, 60 N. II. 418; MoKown v. Hunter, 30 X. Y. 625; Starin v. Kelly, 88 N. Y. 418; Griffin v. Marquardt, 21 N". Y. 121; Forbes v. Waller, 25 X. Y. 430; Columbus v. Z>ahn,36Ind. 330; Whizi nant v. State, 71 Ala. 383; Ford v. State, 71 Ala. 385; McCormick v. ,/<>*, j,/<, 77 Ala. 236. In Forbes v. Waller, supra, it was held proper to prove by the assignor his object and intent in making the assignment, and to prove by hitn that it was to prevent a sacrifice of the general principle is where the motive of a witness in performing a partic- ular act or making a particular declaration becomes a material issue in a cause, or reflects important light upon such issue, he EVIDENCE OE MALICE, MOTIVE, PREMEDITATION AND INTENT. 455 may himself be sworn in regard to it, notwithstanding the diffi- culty of furnishing contradictory evidence, and notwithstanding the diminished credit to which his testimony may be entitled as coming from the mouth of an interested witness. McKown v. Hunter, supra. § 289. Digest Form of the Present Rule. — In digest form •the rule would tind expression in this language: When a crimi- nal intent is imputed to a person or forms an element of a crime with which lie is charged, he is privileged to deny the intent when . 298. The limitation of the rule as applied by Agnew, J., supra, was proper, because there was no question, essentially, of guilty knowledge or intent, for as it said in the statement of the case : ' The evidence tended to show that she died of poison, and the principal question was whether the poison had been administered by the defendant.' "In the case at bar the very gist of the offense charged is the criminal intent with which the act was done, and the burden of proof rests upon the state. Andble v. Com. 24 Gratt. 563. It must be shown affirmatively that the defendant's purpose was to defraud. Such intent is not a presumption of law, but is a fact to be found by the jury. Trogdon v. Com. 31 Gratt. 862. It has been held by the highest authority in this class of cases, that even the admission of the accused that the act was done with the criminal intent cannot preclude the state from proving it by any other competent testimony, for the jury are the sole judges of the evidence. Com. v. McCarthy, 119 Mass. 354; Priest v. Groton, 103 Mass. 530. Under the facts of this case it was for the jury to say whether the act of the prisoner was a criminal act, done with a fraudulent intent to obtain the money of the clerk, or whether it was a mistake of effort merely to practice upon him a joke. The jury, without violence to reason, under an instruction to give the prisoner the benefit of every reasonable doubt, have convicted him. The prosecuting attorney, as suggested by Sta- ples, -/., supra, and by Roscoe in his Criminal Evidence, p. 91, had the right to anticipate an obvious defense of the prisoner that 464 LAW OF EVIDENCE IN CRIMINAL CASES. it was a mistake «>r without criminal intent, and put in, in the first instance, all his evidence bearing on the issue. The evidence further showed that the prisoner started out on that day with the perpetration of the several acts linked together in his mind. His purpose was, to employ his own vulgar but suggestive terms, ' to do the town.' He did 'beat' the unwary out of $10 by the same attempted ' trick.' " Stale v. Myers, S2 Mo. 562. CHAPTER XXXYIII. CORPUS DELICTI. § 293. The Term Defined. 294. Full Proof of not Required. 295. What must be Shown. 296. Cannot be Proved by Uncorroborated Confessions. 297. May be Shown by Circumstantial Evidence. 298. Recent Legislation on this Subject. 299. Intent of the Rule Requiring Proof of. §293. The Term Defined.— The corpus, delicti comprehends the essential elements of an offense — the fact that the particular crime alleged has been actually committed. The corpus delicti must be proved like any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury. A •confession alone is not regarded as sufficient proof. The state must first produce sufficient evidence to send the case to the jurv and the jury are first to be satisfied, from that evidence, that the crime has been committed. The doctrine applies to other crimes, as, larceny. The posses- sion of the fruits of a crime may do away with direct proof of the corpus delicti. See Anderson, Law Diet, title Corpus Delicti, citing, inter alia, Gray v. Com. 101 Pa. 386, 47 Am. Eep. 733; Miltenberger v. Logansport, ('. & S. W. R. Co.106 U. S. 311,27 L. ed. 126; TJdderzook v. Com. 7') Pa. 340; Pitts v. State, 43 Miss. 480, 482; United States v. Williams, 1 Cliff. 25; Johnson v. Com. 85 Ky. 377, 4 Crim. L. Mag. 902, 1)12. It is a general rule not to convict unless the corpus delicti can be established, that is. until the fact that the crime has been actu- ally perpetrated has been first proved. Hence, on a charge of homicide the accused should not be convicted unless the death be first distinctly proved, either by direct evidence of the fact or by inspection of the body. Best. Presumptions, 201; 1 Stark. Ev. 575. See Rex v. Tend, 6 Car. & P. 176; -2 Hale. P. C. 290. Instances have occurred of a person being convicted of having killed an- other, who, after the supposed criminal lias been put to death for the supposed offense, has made his appearance alive. The wi,s- 30 465 466 LAW OF EVIDENCE IN CRIMINAL CASES. dom of the rule is apparent; but it has been questioned whether, in extreme cases it may not be competent to prove the basis of the corpus delicti, by presumptive evidence. 3 Bentham, Judi- cial Ev. 234; Wills, Circ. Ev. 105; Best, Presumptions, 204. See 1 Bouvier, Law Diet, title Corpus Delicti. The corpus delicti consists not merely of an objective crime, but of the defendant's agency of the crime; and it is well settled that, unless the corpus delicti in both these respects is proved, a confession even is not by itself enough to sustain a conviction. It must be corroborated. This can seldom be done by direct or positive testimony, but it may as well be shown by circumstantial evidence. Willa?*d v. State, 27 Tex. App. 386. § 294. Full Proof of not Required.— "Full proof," said Nelson, Ch. J., in People v. Badgley, 16 Wend. 59, "of the body of the crime, the corpus delicti, independently of the confession, is not required by any of the cases, and in many of them slight corroborating facts were held sufficient." Nor is it necessary that the corpus delicti should be proved by direct and positive evidence; it would be most unreasonable to require such evidence. Crimes, and especially those of the worst kinds, are naturally committed at chosen times, and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present or admit, or society must be broken up. Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery, and to afford such a reasonable degree of certainty as men are daily accustomed to regard as sufficient in the most im- portant concerns of life; to expect more would be equally need- less and absurd. While direct evidence of the corpus delicti is always desirable, it should not be held indispensable. To so hold would, in many cases, give immunity to crime, especially in the class of cases to which this belongs. There is some conflict of authority; but we regard this as a better doctrine. If, however, circumstantial evi- dence is relied upon for this purpose, it should be such as to ex- clude all reasonable doubt. 1 Bishop, Crim. Proc. § 1071; Rob- erts v. People, 11 Colo. 213. 295. What must foe Shown. — Every allegation of the com- mission of legal crime involves the establishment of two distinct propositions; namely, that an act has been committed from which COKPUS DELICTI. 467 legal responsibility arises, and that the guilt of such act attaches to a particular individual, though the evidence is not always sep- arable into distinct parts, or applicable to each of those proposi- tions. Such a complication of difficulties occasionally attends the proof of crime, and so many cases have occurred of convictions for alleged offenses which have never existed, that it is a fundamental and inflexible rule of legal procedure, of universal obligation, that no person shall be required to answer, or be involved in the con- sequences of guilt without satisfactory proof of the corpus delicti,. either by direct evidence, or by cogent and irresistible grounds of presumption. Rex v. Burdett, 4 Earn. & Aid. 123. If it be objected that rigorous proof of the corpus delicti is sometimes unattainable, and that the effect of exacting it must be that crime will occasionally pass unpunished, it must be admitted that such may possibly be the result; but it is answered that, where there is no proof, or, which is the same thing, no sufficient legal proof of crime, there can be no legal criminality. In penal jurisdiction there can be no middle term; that the party must be absolutely and unconditionally guilty or not guilty. Burrill, in his work on Circumstantial Evidence, page 6S2, lays down the correct rule. He says : "A dead body or its remains having been discovered and identified as that of the person charged to have been slain, and the basis of the corpus delicti being thus fully established, the next step in the process, and the one which seems to complete the proof of that indispensable preliminary fact, is to show that the death has been occasioned by the crimi- nal act or agency of another person. This may always be done by means of circumstantial evidence, including that of the pre- sumptive kind; and, for this purpose, a much wider range of inquiry is allowed than in regard to the fundamental fact of death, and all the circumstances of the case, including facts of conduct- on the part of the accused, may be taken into consideration." § 296. Cannot be Proved by Uncorroborated Confessions. — There is abundant authority and little dissent to the proposition that extra-judicial confessions alone, uncorroborated by other evidence, are inadequate to establish corpus- delicti. Brown v. State, 32 Miss. 433; People v. Badgley, 16 Wend. 53; State v. Scott, 39 Mo. 424; Jenkins v. State, 41 Miss. 582; People v. Jones, 31 Cal. 565; Stringrf'ellow v. State, 26 Miss. 157, 59 Am. Dec. 217; 46S LAW OF EVIDENCE IN CRIMINAL CASES. Smith v. Com. 21 Gratt. 809; People v. Ruloff, 3 Park. Crim. Rep. 401; Territory v. McClin, 1 Mont. 394; State v. German, 54 Rio. 526, 11 Am. Rep. 481; Blackburn v. State, 23 Ohio St. 146; People v. Thrall, 50 Cal. 415; United States v. Mulvaney, 4 Park. Crim. Rep. 164. In the ease of Bidoff v. People, 18 N. Y. 179, "prisoner's counsel . . . moved the court to stop the trial for want of proof of the corpus delicti; and invoked the protection of the rule laid down by Lord Hale, that no person should be convicted of murder or manslaughter, unless the facts were proved to be done, or at least the body found dead." The motion was sus- tained. In the course of a well reasoned opinion by Chief Jus- tice Johnson, the following exposition of the subject under review occur.- : ''The corpus delicti as it is termed in the law, by which is meant the body of the crime, the fact that a murder has been commit- ted must be clearly and conclusively proved by the government. "The corpus delicti is made up of two things : first, of certain facts forming the basis of the corpus delicti, by which is meant the fact that a human being has been killed; and second, the ex- istence of criminal and human agency as the cause of the death. Upon this first branch of the case, the prisoner's counsel insists that it can only be proved by direct and positive evidence, that the government must prove the fact of death by witnesses who saw the killing, or at least the dead body must be found. It has been said by some judges that a conviction for murder ought never to be permitted unless the killing was positively sworn to or the dead body was found and identified. This, as a general proposition, is undoubtedly correct, but, like other general rules, has its exceptions, it may sometimes happen that the dead body cannot be produced, although the proof of death is clear and sat- isfactory. A strong case in illustration is that of a murder at sea, when the body is thrown overboard in a dark and stormy night, at a great distance from land or any vessel. Although the body cannot be found, nobody can doubt that the author of such a crime is guilty of murder. In such a case, the law permits the jury to infer that death has ensued from the facts proved; the circumstances being such as to exclude the least, if not almost every probability, that such a person could have escaped with life; and yet there is a bare possibility in such a case that the per- son could have escaped with life. CORPUS DELICTI. 469 "I am of opinion that the rule, as understood in this country, does not require the fact of death to be proved by positive and direct evidence in cases where the discovery of the body, after the crime, is impossible. In such cases the fact may be established by circumstances, where the evidence is so strong and intense as to produce the full certainty of death. By the proof of a fact by presumptive evidence, we are to understand the proof of facts and circumstances from which the existence of such fact may be justly inferred. The facts and circumstances to establish the death in the case of murder, in the absence of any positive evi- dence, must be so strong and intense as to produce the full cer- tainty of death, or, as Mr. Wills says, 'the death may be inferred from such strong and unequivocal circumstances as render it morally certain, and leave no ground for reasonable doubt.' " EuloffY. People, 18 K Y. 182. The coipus delicti must be established by evidence independ- ently of the confession. State v. Guild, 10 ~N. J. L. 193; State v. Dubois, 54 Iowa, 363; May v. State, 92 111. 343; Pitts v. State, 43 Miss. 472; Gray v. Com. 101 Pa. 386, 47 Am. Rep. 733; Priest v. State, 10 Neb. 393; United States v. Searcey, 26 Fed. Eep. 435; Hope's Case, 1 City Hall Rec. 150; People v.Badgley, 16 Wend. 53; People v. McGloin, 91 N". Y. 242; Whart. Am. Crim. L. § 633; Bishop, Crim. L. § 1071. On the whole, the doctrine may be said to be, that special care should be exercised as to the corpus delicti, and there should be no conviction except where this part of the case is proved with particular clearness and certainty. Hence the rule as to purely uncorroborated confessions out of court. Alone, they are never quite satisfactory proof; which the evidence, whether circumstan- tial or correct, must be, to establish the corpus delicti. This is the substance of the doctrine, but some judges spin it a little more finely. Bishop, Crim. Proc. § 1059, citing Smith, v. Com. 21 Gratt. 809; State v. Davidson, 30 Vt. 377, 73 Am. I >ec. :: 1 2; State v. Keeler, 28 Iowa, 551; Fuller^ v. State, 48 Ala. 27:*.; Pitts v. State, 43 Miss. 472; State v. Hogard, 12 .Minn. 293; State v. Mc- Gowan, 1 S. C. 14; Taylor v. State, 35 Tex. 97; Peopl v. Wil- son, 3 Park. Crim. Rep. 199; Sam v. State, 33 .Miss. 347; State v. Williams, 52 X. C. 446; Tyner v. State, i> Humph. 383; Burton v. March, 51 K C. 409; Phillips v. State, 29 Ga. 105. § 297. May be Shown by Circumstantial Evidence.— An 470 LAW OF EVIDENCE IN CRIMINAL CASES. ' intelligent commentary upon this subject is from the Kentucky court of appeals, as the following language will indicate: "The only question presented is whether the corpus delicti, the fact that the crime of murder has been perpetrated, must be established by direct proof of the killing, or by an inspection of the body; or whether the death may not be established by circumstantial evi- dence, as any other fact in the case is established. We think there can be no doubt that circumstantial evidence is competent to establish the fact that the person charged to have been mur- dered is dead. The production of the body is certainly the most conclusive, if not the best evidence of that fact, but in the very nature of crimes this is not always possible." Johnson v. Com. 85 Ky. 377, 4 Crim. L. Mag. 902. See also State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530. An early New York case of great celebrity was reasoned on similar lines by Ch ief Justice Johnson. "The corpus delicti, in. murder, has two components, death as the result and the criminal agency of another as the means. It is only where there is direct proof of one that the other can be established by circumstantial evidence." Ruloff v. People, 18 N. Y. 179. And a very recent decision of the Illinois supreme court supports the game view. "Kor is it essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together insepara- ble on one foundation of circumstantial evidence." Carroll v. People, 136 111. 463. The English judges have universally adopted a similar ruling and proof of the corpus delicti by circumstantial evidence is in all cases permissible. Mr. Justice Holroyd has said: "Xo man is to be convicted of any crime upon mere naked presumption. A light or rash presumption, not arising either necessarily, probably, or reason- ably, from the facts proved, cannot avail in law. But crimes of the highest nature, more especially cases of murder, are estab- lished, and convictions and executions thereupon frequently take place for guilt most convincingly and conclusively proved, upon presumptive evidence only of the guilt of the party accused; and the well-being and security of society much depend upon the CORPUS DELICTI. 471 receiving and giving due effect to such proof. The presumptions arising from those proofs should, no doubt, and most especially in cases of great magnitude, be duly and correctly weighed. They stand only as proofs of the facts presumed till the contrary be proved, and those presumptions are either weaker or stronger according as the party has, or is reasonably supposed to have it in his power to produce other evidence to rebut or to weaken them, in case the fact so presumed be not true, and according as he does or does not produce such contrary evidence." Of similar tenor are the remarks of Mr. Justice Bayley: "No one can doubt that presumptions can be made in criminal as well as in civil cases. It is constantly the practice to act upon them, and I apprehend that more than one half of the persons convicted of crimes, are convicted on presumptive evidence. If a theft has been commit- ted, and shortly afterwards the property is found iu the possession of a person who can give no account of it, it is presumed that he is the thief, and so in other criminal .cases; but the question always is, whether there are sufficient premises to warrant the conclusion." Lord Chief Justice Abbott supports the same view: "A fact must not be inferred without premises which will warrant the inference; but if no fact could be thus ascertained by inference in a court of law, very few offenses would be brought to punish- ment. In a great proportion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given; the man who is charged with theft is rarely seen to break the house or take the goods; and in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredient poured into the cup.' The law on this point was also very emphatically declared by Mr. Boron Parke in TaweWs Case. His lordship said: 'The jury had been properly told by the counsel for the prosecution that circumstantial evidence is the only evidence which can in ■cases of this kind lead to discovery. There is no way of investi- gating them except by the use of circumstantial evidence; but Providence has so ordered the affairs of men that it most fre- quently happens that great crimes committed in secret leave behind them some traces, or are accompanied by some circum- stances which lead to the discovery and punishment -of the offender; therefore the law has wisely provided that you need not have, in cases of this kind, direct proof, that is, the proof of eye- 472 LAW OF EVIDENCE IN CRIMINAL CASES. witnesses, who see the fact and can depose to it upon their oaths. It is impossible, however, not to say that it is the best proof, if that proof is offered to you upon the testimony of men whose veracity you have no reason to doubt; but on the other hand it is equally true with regard to circumstantial evidence, that the cir- cumstances may often be so clearly proved, so closely connected with it, or leading to one result in conclusion, that the mind may be as well convinced as if it were proved by eye witnesses. This- being a case of circumstantial evidence, I advise you,' said the learned judge, 'as I invariably advise juries, to act upon a rule that yon are. first to consider what facts are clearly, distinctly, indisputably proved to your satisfaction; and you are to consider whether those facts are consistent with any other rational suppo- sition than that the prisoner is guilty of that offense. If you think that the facts in this case are all consistent with the suppo- sition that the prisoner is guilty, and can offer no resistance to that, except the character the prisoner has borne, and except the supposition that no man would be guilty of so atrocious a crime as that laid to the charge of the prisoner, that cannot much influ- ence your minds; for we all know that crimes are committed, and, therefore, the existence of the crime is no inconsistency with the other circumstances, if those circumstances lead to that result. The point for you to consider is, whether, attending to the evi- dence, you can reconcile the circumstances adduced in evidence with any other supposition than that he has been guilty of the effense. If you cannot, it is your bounden duty to find him guilty; if you can, then you will give him the benefit of such supposition. All that can be required is, not absolute, positive proof, but such proof as convinces you that the crime has been made out.' " See Wills, Circ. Ev. (6th ed.) 202-204. Blackstone says: "All presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer, and Sir Matthew Hale, in particular, lays down two rules most prudent and necessary to be observed: 1. Never to convict a man for stealing, etc.; and 2. Never to convict any person of murder or manslaughter, till at least the body be found dead." 4 Bl. Com. 358. In 2 Best on Presumptions, p. 780, it is said that "every crim- inal charge involves two things; first, that an offense has been CORPUS DELICTI. 473 committed; and, second, that the accused is the author, or one of the authors of it;" and, the learned writer adds: "The identifica- tion of the body of the deceased need not be proved by witnesses, who, by an actual inspection of the body, recognize it as the body of the person with whose murder the prisoner is charged; but it may be by the same class of proof as is used to identify the pris- oner on trial, or any other material facts. . . . Indeed, it may be said that any proof that satisfies the jury that the body is that of the deceased is sufficient, as fragments of the clothing identi- fied as similar to that worn by the deceased when last seen alive." 1 Starkie on Evidence, p. 575, defines the corpus delicti as "the fact that the crime has been actually perpetrated," and 3 Greenleaf on Evidence, § 131, as "the fact that a murder has been committed," and adds that the rule requires "unequivocal and certain proof that someone is dead." All these cases and authors hold, with- out exception, that until a criminal fact has been established, "antequam de crimine constiterit" there can be no basis for j^re- sumptive proof, but when, in a case of murder, that basis has been certainly supplied, the identity of the victim and the agency of the prisoner may be shown by circumstances. So far as I have been able to discover, that rule has always been recognized and applied in this country. A few of the more remarkable cases may be studied to demonstrate its wide preva- lence. In People v. Wilson, 3 Park. Grim. Rep. 199, it appeared that a dead body, with marks of violence upon it, had been washed ashore. It was alleged to have been the body of Captain Palmer for whose murder the prisoner was being tried. JS T o direct evi- dence of that identity was or could be given. But the criminal fact of a death, by violence, having been fully established, the identity of the remains was proved by circumstances. Personal recognition had become impossible, and identity was established by an inference from resemblances. The height of deceased was shown, an unusual length of face, and a widening of the end of the little linger, to which, in a general way, the body corres- ponded. But a more important fact was that the captain had imprinted his name upon his leg and arm, and in the same por- tions of the body found the skm had been cut away, except that on the leg the letter P remained visible. A brother-in-law of deceased, who had seen the body, was asked the direct question, whose body it was; but the court would not permit an answer; 474 LAW OF EVIDENCE IN CRIMINAL CASES. saying that the question was not the ordinary one of personal identity, since the body had been submerged for five months, but was one of an inference from resemblances, which the jury and not the witness must draw. The prisoner was convicted. In Com. v. Webster, 5 Cush. 295, the identification stood mainly upon'a block of teeth found in the furnace where part of the body was consumed. There was no direct recognition of the body by any one, but the circumstantial evidence was very strong. I do not see how the identification of the false teeth can be deemed direct evidence of the identity of the remains. It was a fact from which that identity could be inferred, and the inference be very strong, but the conclusion would still be an inference. If Dr. Keep, the dentist, after examining the teeth, had been asked the direct question whether the mutilated remains were those of the deceased, he could only have answered in the affirmative, as a judgment founded upon a process of reasoning. False teeth are artificial and not natural. They may be worn at one time and omitted at another. They may be lost from the mouth and pass into a stranger's possession. If their identity as found among the remains directly identified the body, why did not in the present case the proved identity of the boot found on the foot of the body discovered directly identify that body? Is not the difference rather one of the degree than of the kind of proof? But in both case's 1 think the evidence was inferential, and cannot justly be regarded as direct. In Taylor v. State, 35 Tex. 97, there was no direct proof of the identity of the deceased, but his clothing, hat and papers were identified, and his wagon and team and even his dog were found in the prisoner's possession. A still more re- markable case was that of State v. Williams, 52 N. C. 440, where with the bono were found some trifling articles of feminine attire, seemingly insufficient to justify an inference of identity. § 298. Recent Legislation on the Subject.— The well rec- ognized rules as to corpus delicti have assumed a statutory form in the state of New York, and the Penal Code after defining homicide to be the killing of one human being by the act, pro- curement or omission of another, and declaring/the crime to class- ify under the head of either (1) murder; (2) manslaughter; (3) ex- cusable homicide; or (4) justifiable homicide, proceeds with the declaration that, "no person shall be convicted of manslaughter or murder unless the death of the person alleged to have been killed CORPUS DELICTI. 475 and the fact of killing by the defendant, as alleged, are each estab- lished as independent facts; the former by direct proof and the latter beyond a reasonable doubt." Kew York Penal Code, §§ 179-181. In construing a statute everything in favor of the liberty and the security of the citizen and the protection of the individual is to be liberally and comprehensively interpreted. Potter's Dwarr. Statutes, 49; Lieber, Hermeneutics [16th ed. 1880], chap. 5, § 134; People v. Kelly, 24 K Y. 74, 81, 82; Boyd v. United States, 116 TJ. S. 616, 29 L. ed. 746. "By the corpus delicti, the body or substance of the offense, has always been meant the existence of a criminal fact. Unless such a fact exists there is nothing to investigate. Until it is proved, inquiry has no point upon which it can concentrate. In- deed, there is nothing to inquire about. But, when a criminal fact is discovered, its existence, for the purpose of a judicial in- vestigation, must be established fully, completely, by the most clear and decisive evidence. For otherwise the after reasoning founded upon it and drawing its force from it will be dangerous, fallacious, and unreliable. As the weakness of the foundation is more and more intensified, while the superstructure ascends and the weight grows, so the circumstantial evidence built upon a criminal fact, not certain to have existed, becomes itself weak and indecisive, and more and more so as the suspicions expand and extend. If somebody has been murdered a motive for a murder becomes a significant fact, rendered more so when identification .shows it a motive for the particular murder. But if the death is doubtful the probative force of a motive dwindles to mere suspi- cion." People v. Palmer, 109 Is". Y. 113. The provision of the Penal Code in the section above referred to, which prohibits a conviction "of murder or manslaughter, un- less the death of the person alleged to have been killed, and the fact of killing as alleged, are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt." does not require direct proof of the identity of the vic- tim, but only of the death. Identity is not included in the cor- pus delicti, and is left open to indirect or circumstantial evidence. An intention to change the rule of the common law will not he presumed from doubtful statutory provisions; the presumption is that no such change was intended unless the statute is explicit and clear in that direction. P< <>j>l>' v. Palmer, supra. 476 LAW OF EVIDENCE IN CRIMINAL CASES. A confession is no evidence of the corpus delicti, but only of the connection of the defendant with the crime; the corpus delicti is a substantive independent fact in the case, to be proved as if defendant were not a party to the cause, and so his unsworn state- ment is no more evidence of the corpus delicti than the hearsay statement of any other person. State v. Guild, 10 N. J. L. 193; State v. Dubois, 54 Iowa, 363; May v. State, 92 111. 343. Cir- cumstantial evidence should be acted upon with great caution, especially where the public anxiety for the detection of a great crime creates an unusual tendency to exaggerate facts and draw rash inferences. Pitts v. State, 43 Miss. 472. All that the law requires is that the corpus delicti shall be proved, as any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury. Gray v. Com. 101 Pa. 386, 47 Am. Kep. 733; Priest v. State, 10 ]Seb. 393; United States v. Searcey, 26 Fed. Rep. 435; People v. Porter, 2 Park. Crim. Rep. 14; Hope's Case, 1 City Hall Rec. 150; People v. Badgley, 16 Wend. 53; People v. Mc- Gloin, 91 K Y. 242, Bishop, Crim. L. § 1071. The corroborative evidence must go to prove the entire crime, and not only one or more of its constituent elements; and proof . d one clement is no proof of another. People v. Plath, 100 N. Y. 590. The quantum of evidence, aliunde the confession, suffi- cient to convict, is not the same as suffices to corroborate an ac- complice under section 399 of the Criminal Code, or a female under sections 283 and 286 of the Penal Code. People v. Plath, supra; People v. Williams, 1 N. Y. Crim. Rep. 344; Frazer v. People, 54 Barb. 310. In determining a question of fact from circumstantial evidence, the hypothesis of guilt should flow natu- rally from the facts proved and be consistent with them all; and the evidence must be such as to exclude, to a moral certainty, every hypothesis but that of guilt of the offense imputed. Peo- ple v. Bennett, 49 N. Y. 137; People v. Stokes, 2 N. Y. Crim. Rep. 382; People v. Kennedy, 32 X. Y. 145, Lawson, Presumptions, 569; Eeans v. Evans, 1 Hagg. Const. 105. If the facts be consistent with innocence, they are no proof of guilt. Ormshy v. People, 53 N. Y. 475; People v. Courtney, 28 Hun, 593; Frazer v. Peo- ple, 54 Barb. 309; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 491; Port v. Port, 70 111. 484; Mason v. State, 32 Ark. 239; Car- roll v. Quinn, 13 Md. 379; Greenwood v. Lowe, 7 La. Ann. 197; United States v. The Burdett, 34 U. S. 9 Pet. 682, 9 L. ed. 273. CORPUS DELICTI. 477 "It is insisted that under the statute the corpus delicti must be proved, or evidence given tending to prove it, wholly independ- ent of the confession, and that no evidence was given, which, disconnected with the confessions, had a legal tendency to prove the body of the crime. It would be a sufficient answer to this point that it is not raised by any exception on the trial, and it clearly was not raised by the exception to the denial of a motion for a new trial, made after verdict. But we are of opinion that when, in addition to the confession, there is proof of circumstances which, although they may have an innocent construction, are nevertheless calculated to suggest the commission of crime, and for the explanation of which the confession furnishes the key, the case cannot be taken from the jury for a non-compliance with the requirement of the statute. The words of the statute, ' additional proof that the crime charged has been committed, 1 seem to imply that the confession is to be treated as evidence of the corpus delicti, that is, not only of the subjective criminal act but also the criminal agency of the defendant; in other words, as competent proof of the body of the crime, though insufficient without corroboration to warrant a conviction. ' Full proof,' said Nelson, Oh. J., in People v. Badgley, 16 Wend. 53, 'of the body of the crime, the corpus delicti, independently of the confession is not required by any of the cases, and in many of them slight corroborating facts were held sufficient.' We are of opinion that there was evidence in addition to the confession, which constituted 'additional proof within the statute." People v. Jaehne, 103 N. Y. 182. That I have correctly stated what is meant by the corpus di licti, requiring direct proof, and that it never did include the iden- tity of the victim, but left that open to indirect, or circumstantial evidence, is shown by an unbroken and unvarying concurrence of authority. In People v. Videto, 1 Park. Crim. Rep. 609, Walworth, Ch. J., says: "One rule however, which ought never to be departed from is, that no one should be convicted of murder upon circum- stantial evidence, unless the body of the person supposed to have been murdered has been found, or there be other clear and irre- sistible proof that such person is actually dead." It does not appear that this direction was material on that trial, and it is cited only to show how constantly the doctrine has been received as clear and undisputed law. 47b LAW OF EVIDENCE IN CRIMINAL CASES. Iii Peopli \. Wilson, 3 Park. Crim. Rep. 207, the cook of the schooner Eudora was indicted for the murder of the captain upon Long Island Sound; after five months a body floated on shore, which the prosecution claimed was shown to be that of the mur- dered man. Strong, ,/., who presided at the trial, charged the jury "that ordinarily there could be no conviction for murder until the body of the deceased was discovered. That there were several exceptions to the rule, however, as where the murder has Urn on the high seas, at a great distance from the shore, and the body had been thrown overboard, or where the body had been entirely consumed by fire, or so far that it was impossible to iden- tify it. But, in the present case, the scene of the supposed tragedy was near the shore, and there was strong reason to sup- pose that if a murder had been committed, the body of the deceased would be discovered. The exception to the rule is, therefore, inapplicable, and the jury must be satisfied that the body discovered . . . was that of the. murdered captain, before they could convict the prisoner." in E< g. v. Tawell, cited in Wills, Circ. Ev. (3d ed.) 181, Baron Parke told the jury that "the only fact which the law requires to be proved by direct and positive evidence is the death of the party by finding the body, or, when such proof is absolutely impossible, by circumstantial evidence leading closely to that result — as where a body was thrown overboard, far from land, when it is quite enough to prove that fact without producing the body." "The Texas statute following the liberal tendency of the Code Napoleon accurately states the rule as to corpus delicti that 'no person shall be convicted of any degree of homicide unless the body of the deceased, or portions of it, are found and sufficiently identified to establish the fact of the death of the person charged to have been killed.' Texas Penal Code, art. 549. Now, we t that the death- of the person charged to have been killed can he proved in no other manner — by no other evidence or cir- cumstances than those named in the statute. The dead body or a portion of it must be found. The body or a portion thereof must not only be found, but must be identified as the body or a portion of the body of the person charged to have been killed. The death of the person must be established by proof of these facts, and the death cannot be established by any other evidence CORPUS DELICTI. 479 or circumstance short of such proof. This the law requires, and whether this provision be wise or unwise is not for this court to determine. We will remark, however, that the fearful results consequent upon any other rule being adopted and followed are well known to all thoughtful readers and students of criminal jurisprudence." Hurt, J., in Puryear v. State, 28 Tex. App. 73. § 299. Intent of the Rule Requiring Proof of.— The rule that the corpus delicti must be proved beyond a reasonable doubt was intended as a shield to prisoners, and must never be used as a sword. In the language of Lord Hale, "tutius semper est errare in acquittando, quam inpuniendo, ex parte misericordice quam ex parte justitice" The people in every case of homicide must prove the corpus delicti beyond a reasonable doubt, and if the prisoner claims a justification he must take upon himself the burden of satisfying the jury by a preponderance of evidence. He must produce the same degree of proof- that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery, and had set up a justification. When a man takes human life, upon which the law sets a high value, it is not sufficient for him to raise a reasonable doubt whether he was justifiable or not but he must go one step further, and give satisfactory evidence that he was justified. This rule is sufficiently humane to the prisoner, and at the same time gives some protection to human life. CHAPTER XXXIX. EVIDENCE OF IDENTITY. § 300. A Cautionary Paragraph. 301. Circumstances from, ivliich Identity may he Inferred. 302. Voice as Evidence of Identity. a. Telephonic Communications. 303. Dress as a Means of Identification. 304. Perplexing Nature of this Grade of Evidence. 305. Cautionary Suggestimis of Mr. Justice Taylor. § 300. A Cautionary Paragraph. — "This branch of our sub- ject, simple as it may seem, and free from difficulty in the estima- tion of those unaccustomed to reasoning on the topic, is, on the contrary, perhaps one of the most difficult questions with which courts and juries are called upon to deal. The change in the appearance of the person whose identity is in question, wrought by age, mode of life, hardships, toil and care, sometimes coupled with a skillful disguise ; again, the want of perception and dis- crimination in the identifying witnesses; these and numerous other causes have led to numerous cases of mistaken identity, both in ancient and modern times, and in all civilized countries, as we shall see, in both civil and criminal causes. Sometimes position and estates are acquired by fraud, and again, the innocent is punished, and not unfrequently the guilty escapes, from a mis- take in the personal identity. These questions are fraught with their dangerous consequences, and difficult in their solution, and are of the greatest importance in the affairs of men. But where is the remedy? It lies alone in caution and prudence. Observa- tion and sad experience admonish courts and juries to the use of the utmost care, caution and prudence." Harris, Identification, The cautionary suggestions of this paragraph are abundantly emphasized by a brief reference to the celebrated Ticliborne Case, Feb. 28, 1872, MS. That an illiterate roving tramp could so impose upon people of marked intelligence as to induce eighty- five witnesses including the mother of the real heir to testify as to his identity, argues an appalling defect in human sagacity. 480 " EVIDENCE OF IDENTITY. 481 For 103 days this remarkable case engrossed the attention of one of the highest tribunals in Great Britain; and nothing but the searching and drastic cross-examination to which the imposter was subjected, dispelled the illusions that mistaken identity had evolved. The rule obtains in most of our jurisdictions that non- expert testimony is admissible upon all questions of identity. The exceptions to this rule will be hereafter considered; but in support of the general proposition we will cite the following: Cunningham v. Hudson River Bank, 21 Wend. 557; Tate v. Missouri, K. & T. R. Co. 64 Mo. 149; Hblten v. Lake County Comrs. 55 Ind. 194; State v. Vittum, 9KH. 519; Com, v. Dow- dican, 114 Mass. 237; Curtis v. Chicago & N. W. R. Co. 18 Wis. 312; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; Cooper v. State, 53 Miss. 393; People v. Rolf e, 61 Cal. 541; IlaUahan v. New York, L. K & W. R. Co. 102 K Y. 194; Funston v. Chi- cago, R. I. cfc P. R. Co. 61 Iowa. 152; Clifford v. Richardson, 18 Vt. 620; Cooper v. State, 23 Tex. 339; Alexander v. Mt. Sterling, 71 111. 366; Cottrill v. Myrick, 12 Me. 222; Colee v State, 75 Ind. 511. The elaborate opinion in the Tichborne Case, supra, while distinguished by a great parade of unusual learning was rendered somewhat perplexing and obscure by the subtlety of the distinc- tions and the very artificial texture of the argument. § 301. Circumstances from which Identity may be In- ferred.— "The liability to mistake must necessarily be greater where the question of identity is matter of deduction and infer- ence, than where it is the subject of direct evidence. The cir- cumstances from which identity may be thus inferred are innumer- able, and admit of only a very general classification, of which the following are perhaps the most remarkable heads. "Family likeness has always been insisted upon as a reason for inferring parentage and identity. In the Douglas Case, Lord Mansfield said: 'I have always considered likeness as an argu- ment of a child's being the son of a parent; and the rather as the distinction between individuals in the human species is more dis- cernible than in other animals; a man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discrimi- 31 482 LAW OF EVIDENCE IN CRIMINAL CASES. nancy of voice, a difference in the gestures, the smile, the other various tilings; whereas a family likeness runs generally through all these, for in everything there is a resemblance, as of features, size, attitude, and action.' But in a case in Scotland, where the question was who was the father of a certain woman, an allegation that she had a strong resemblance in the features of the face to one of the tenants of the alleged father was held not to be relev- ant, as being too much a matter of fancy and loose opinion to form a material article of evidence. Tait, Ev. 443. And, in another Scottish case, a trial for child-murder, it was permitted, after proof that the child had six toes, to ask a witness whether any member of the prisoner's family had supernumary fingers and toes; though the inference to be deduced was evidently only mat- ter of opinion. 1 Dickson, Ev. 14. " . . . Circumstances frequently contribute to identifica- tion, by confining suspicion and limiting the range of inquiry to a class of persons, as where crimes have been committed by left- handed persons; or where, notwithstanding simulated appearances of external violence and infraction, the offenders must have been domestics; as in the case mentioned on a former page, of two per- sons convicted of murder, who created an alarm from within the house; but upon whom,, nevertheless, suspicion fell, from the cir- cumstance that the dew on the grass surrounding the house had not been disturbed on the morning of the murder, which must have been the case had it been committed by any other than inmates." Wills, Circ. Ev. 117. § 302. Yoice as Evidence of Identity. — "In a Texas case on an indictment for arson in the burning of a house and fences in the night time, the owner hurried to the scene, and was shot at by the accused, he returned the fire, when he heard bitter oaths and vociferations emanating from the accused, whose voice he recog- nized and identified, having known him for thirteen years and lived within half a mile of him for many years. The court held that positive recognition of the defendant's voice, by Que who was familiar with it, might suffice to identify the guilty party. In a Massachusetts case the accused was indicted for an attempt at arson in burning a house belonging to one Farnham, whose wife testified that she heard the voice of the accused on the day before the attempt at night, had heard it but the one time, and again, that night, and recognized it and could identify it. This was held EVIDENCE OF IDENTITY. 483 competent." Harris, Identification, § 14, citing Davis v. State, 15 Tex. App. 594; Com. v. Hayes, 138 Mass. 186. A defendant in a criminal case, not under oath as a witness, is not entitled to repeat something in the presence of the jury, to- rebut evidence of a witness for the government, who testified that he identitied the defendant by his voice. Com. v. Scott, 123 Mass. 222. ' "Where the prisoner was in jail at the same time with the wit- ness, though not in the same room, the witness testified to a con- versation with the prisoner in which the prisoner confessed his guilt. He testified that he conversed with the accused through the soil pipes of the jail, and that he, the prisoner, confessed or admitted to him, the witness, that he was guilty of the charge on which he had been cast into prison, and that he knew the prisoner from his voice. The court upon this statement, with seeming- reluctance, permitted it to go to the jury. Ht Id. that it was com- petent to go to the jury, and that it was their province to con- sider it, and give it such weight as it might be entitled to." Harris, Identification, § 554, citing Brown v. Com. 76 Pa. 319. Similarly in a recent Massachusetts case, the testimony of a wit- ness, identifying the defendant by his voice, was held competent. The weight of it was for the jury, but it was properly submitted to them, to be considered in connection with other evidence of identity. Com. v. Williams, 105 Mass. 62; Com. v. Hayes, 138 Mass. L83. In ( 'inn. v. Scott, supra, the ruling was to the effect that though identification might be established by means of the voice, experi- ments in the court room were inadmissible. In Rex v. Harrison, 12 How. St. Tr. 850, conviction rested in part on identification of voice. See as to identification by voice, 3 Whart. & S. Medical Jurisprudence (4th ed.) § 634; Whart. Crim. Ev. § 803, note. a. Telephonic Communications. — The authorities upon the subject of the telephone in evidence, although meagre, voice but one sentiment. They one and all recognize the ex- extreme necessity of upholding the validity of telephonic commu- nications to impress the characteristics of an admission, confession, statement or contract, and will admit the telephonic message in evidence; first where the parties are identified by means of the the voice; and secondly on the well recognized principle of agency. As regards identification, it may be said that notwithstanding the 484 LAW OF EVIDENCE IN CRIMINAL CASES. metallic tone transmitted under certain atmospheric conditions it i- matter of common notoriety that the human voice can be easily discerned, while as regards the ground of agency, it is very appar- ent that under well recognized rules governing that subject, the parties can be made to sustain the relation of principle and agent in most if not all the cases that arise. See Oskam/p v. Gadsden, (Neb.) 17 L. R. A. 440; Missouri Pac. P. Co. v. Ileidenheimer, 82 Tex. 195; Sullivan v. Kuyhendall, 82 Ky. 483, 56 Am. Rep. 901. "Courts of justice do not ignore the great improvements in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses, are facts of general scientific knowledge, of which the courts will take judicial notice as part of public contemporary history. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are admis- sible in evidence, as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be, in rela- tion to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to deter- mine merely the admissibility of such conversations in such cir- cumstances, but not the effect of such evidence after its admission. It may be entitled, in each instance, to much or little weight, in the estimation of the triers of fact, according to their views of its credibility, and of the other testimony in support or in contradic- tion of it." Barclay, J., in Wolfe v. Missouri Pac. R. Co. 3 L. R. A. 539, 97 Mo. 473, 10 Am. St. Rep. 331. From a trenchant criticism on this case by the editor of the New York Law Journal, we extract the following : "It is evident that a clerk in an ordinary shop, in apparent charge thereof, has a somewhat different authority to speak for his employer than an unknown person speaking over a telephone. In each case it is a question of presumptive evidence, but the presumption is very much stronger in the case of the clerk in the store than of the speaker over the telephone. The question as to where is the clerk is absolutely determined; as to where is the speaker over the tele- phone is only a matter of very great probability. On the second point, that an identification of the voice of the speaker through EVIDENCE OF IDENTITY. 485 tne telephone is not necessary to make his declarations admissible, we think the court went to a very great extreme, and we doubt whether this ruling should be followed." Evidence of an alleged conversation by telephone with one of the defendants, fully identified by his voice, is not to be excluded on the ground that it is not shown that the person conversed with was in fact one of the defendants, when that fact sufficiently ap- pears by the testimony of another of the defendants. Davis v. Walter, 70 Iowa, 465. The magnitude of the interests involved, the prominence of the parties under accusation, the national reputation of those indirectly involved, the eminence of the counsel employed and the excep- tional ability of the presiding judge have invested the celebrated case of People v. Ward, 3 N. Y. Crim. Rep. 483, with unusual interest. Among the many incidents of that trial, hotly contested, arose over the admission in evidence of an alleged conversation over the wire between the then president of the Marine Bank and the defendant Ferdinand Ward. The Hon. Benjamin F. Tracey, subsequently of the New York court of appeals strenuously op- posed the reception of this evidence, and the court in the person of the distinguished Mr. Justice Barrett promptly overruled the objection and admitted the conversation in evidence. This ruling has excited vehement controversy and elicited a great amount of comment, wise and otherwise; but the decision itself has never been shaken; and the contention that has surged around it, has failed to impair either its logic or its justice. Refining causists have seriously contended that a distinction should be recognized in criminal and civil cases; but such argument seems grounded in mere mawkish sentimentalism without even a granule of common sense in its support. See Rice, Civil Evidence, chap. 03, title "Telephone." § 303. Dress as a Means of Identification. — "This is usu- ally one of the first circumstances observed in the appearance <»i a person, and, where it is in any degree peculiar, furnishes im- portant means of identification. ... It is the exterior cloth- ing, however, including the hut, which ordinarily makes the first and most lasting impression upon the sense of sight. An over- coat, from its size, will soonest attract attention, and frequently is the only portion of the clothing which is distinctly visible. Hence it is constantly mentioned in testimony descriptive of the persons 486 LAW OF EVIDENCE IN CRIMINAL CA.SES. of assailants and other offenders. The exterior clothing, like the size, is also frequently distinguishable by very imperfect or tran- sient lio-ht. But, in one respect, this circumstance of dress is less reliable than other observed appearances; it being frequently assumed for the very purpose of disguise, and laid aside or de- stroyed after the crime has been perpetrated. The absence of an article of apparel usually worn out of doors, such as a hat, consti- tutes another observable circumstance by which a person may be identified." Burrill, Circ. Ev. 639. § 304. Perplexing Nature of this Grade of Evidence.— Evidence of identity should be as far certain as human recollec- tion under the most favorable circumstances will permit. The books are full of instances where inaccurate evidence as to identity has consigned unfortunate beings to the prison and the gibbet. 3 Greenl. Ev. § 30; Wills, Circ. Ev. chap. 47; Nichols v. People, 17 K Y. 114; McCamey v. People, 83 N. Y. 408, 38 Am. Rep. 456. Questions of identity are often perplexing and doubtful, as ob- serve from the following cases : The case of Martin Guerre, heard before the Parliament of Toulouse in 1850. In this case Arnauld Dutille, an adventurer, imposed successfully on the wife of Guerre as her husband and had children by her. Several hundred witnesses were examined and it was only the arrival of the true husband that developed the deceit. 1 Beck, Medical Jurisprudence (13th ed.) 674. Case of Sieur De Caille, cited by same author, page 675; Case of /Salome Muller, heard before the supreme court of Louisiana, May term, 1S45. See Beck, Medical Jurisprudence (13th ed.) 683; Case of Shejpardson (Beck, page 683); the Lowell case, Len- aquez case, and the negro case cited by Beck, pages 684, 685. See also Munsell's Cases of Personal Identity, published in Albany in 1854. People v. Wiggins, 1 N. Y. Crim. Rep. 290, affirmed in 92 N. Y. 656, 1 N. Y. Crim. Rep. 296. § 305. Cautionary Suggestions of Mr. Justice Taylor.— "The first degree of evidence, and that which, though open to error and misconception, is obviously most satisfactory to the mind is afforded by our own senses. 'Believe half what you yourself see, and a twentieth part of what you hear from others,' is a maxim, which reflects severely upon human intelligence and ve- racity, but which, nevertheless, is founded in the main upon the experience of life, and marks the vast distinction that obtains be- EVIDENCE OF IDENTITY. 487 tween a knowledge of facts derived from actual perception, and the belief of the existence of facts resting on information. . . . "These observations apply to all cases, in which the guilt or inno- cence of the prisoner depends upon the identity or comparison of two articles found in different places; as, for example, the wad- ding of a pistol with portions of a torn letter found on the person of the accused, or the fractured bone of a sheep with mutton found in his house, or fragments of dress with his rent garment, or damaged property with the instrument by which the damage is supposed to have been effected. In all these, and the like cases it is highly expedient, if possible, to produce to the court the arti- cles sought to be compared; and although the law, in demanding the production of the best evidence, does not expressly require that this course should be adopted, but permits a witness to testify as to his having made the comparison, without first proving that the article cannot be produced at the trial, their non-production, when unexplained, may often generate a suspicion of unfairness, and will always furnish an occasion for serious comment." See 1 Taylor, Ev. §§ 554, 555, citing Armory v. Ddami/'ie, 1 Strange, 504; 1 Smith, Lead. Cas. (Sth Am. ed.) "374. CHAPTEK XL. CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. § 306. The Term "Confessions" Defined. 307. Confessions must be Voluntary. 308. Judge to Decide if Confession is Voluntary. 309. Presumption as to. 310. If Elicited by Fear or Menace should be Rejected. 311. Great Caution Enjoined in Receiving. 312. Province of Court and Jury with Reference to. 313. Confessions not Conclusive. 314. Credibility of the Witnesses Proving may be Examined. 315. Confessions under Intoxication. 316. Confessions Obtained by Improper Influence. 317. New York Rule Relative to. 318. Demeanor of the Accused ivhen under Arrest — the Effect of Silence. § 306. The Term "Confessions" Defined.— A voluntary confession is one proceeding from the spontaneous suggestion of the party's own mind, free from the influence of any extraneous disturbing cause. People v. McMahon, 15 N. Y. 384; People v. Chapleau, 121 N. Y. 266. "It is the voluntary declaration made by a person who has com- mitted a crime or misdemeanor, to another, of the agency or participation he had in the crime." People v. Strong, 30 Cal. 151. And in delivering the opinion of the court in People v. Parton,4Q Cal. 632, McKinstry, J., said: "A confession is a person's declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt." Prima facie, all confessions are voluntary, and it is for the partv objecting to their admission as evidence to show that they were uttered under such pressure of hope or fear as to raise a doubt of their accuracy. It is undoubtedly the duty of the court to guard carefully the rights of a defendant in this respect; and more especially so when the prisoner is in the custody of the law and the hope or fears are supposed to be raised by an offer of the law. The fact that a defendant may think it will be better for 488 CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. 489 him if he confesses, or thinks it will be worse for him if he does not confess, is immaterial, if that condition of mind is brought about by his own independent reasoning. It is when that state of mind is induced by promises or threats or other inducement from without, that the confession is to be rejected. Com. v. Sego, 125 Mass. 210. Confessions of the prisoner are receivable in evidence, upon the presumption that a person will not make an untrue statement against his own interest. 1 Phil. Ev. (9th ed.) 397. § 307. Confessions must be Voluntary.— To render confes- sions of a party charged with crime admissible against him, it must be clearly shown that they were free and voluntary. Coffee v. State, 25 Fla. 501; Murray v. State, 25 Fla. 528. This rule will receive further vindication as we proceed. Sir William Blackstone in a well known passage, says : "In cases of felony, confessions are regarded as the weakest and most suspicious of all testimony ; very liable to be obtained by artifice, false hopes, promises of favor, menaces; seldom remembered accurately or reported with precision, and incapable in their nat- ure of being disproved by other negative evidence." 4 Bl. Com. 357. It is to be observed in the first place that Blackstone uses this language in connection with his criticisms upon state trials for treason in England, and, although he intends his observations to have a general application to all cases of felony, he regarded them as primarily to be considered in state trials for treason. But the annotator upon this text of Blackstone thus remarks in a note: "It seems to be now clearly established that a free and voluntary confession of a person accused of an offense whether made before his apprehension or after, whether on a judicial ex- amination or after commitment, whether reduced into writing or not; in short, that any voluntary confession, made by a prisoner to any person, at any time or place, is strong evidence against him, and, if satisfactorily proved, sufficient to convict without any corroborating circumstances. But the confession must be volun- tary, not obtained by improper influence, nor drawn from the prisoner by means of a threat or promise; for, however slight the promise or threat may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made rather from a motive of fear or interest, than from a sense of guilt." Citing Phil. Ev. 80. Such undoubt- 490 LAW OF EVIDENCE IN CRIMINAL CASES. cdly is the rule as enunciated by the most authoritative text-writ- ers. People v. Bennett, 37 N. Y. 117, 93 Am. Dec. 551. "No confession is deemed to be voluntary if it appears to the judge to have been caused by any inducement, threat or promise, proceeding from a person in authority, and having reference to the charge against the accused person, whether addressed to him directly or brought to his knowledge indirectly; and if (in the opinion of the judge) such inducement, threat, or promise, gave the accused person reasonable grounds for supposing that by mak- ing a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. But a confession is not involuntary, only because it appears to have been caused by the exhortations of a person in authority to make it as a matter of religious duty, or by an inducement collateral to the proceed- ing, or by inducements held out by a person not in authority. The prosecutor, officers of justice having the prisoner in custody, magistrates, and other persons in similar positions, are persons in authority. The master of the prisoner is not as such a person in authority, if the crime of which the person making the confession is accused was not committed against him. A confession is deemed to be voluntary if (in the opinion of the judge) it is shown to have been made after the complete removal of the impression produced by any inducement, threat, or promise which would otherwise render it involuntary. Facts discovered in consequence of confessions improperly obtained, and so much of such confes- sions as distinctly relate to such facts, may be proved." Stephen, Dig. art. 22. While some of the adjudged cases indicate distrust of confes- sions which are not judicial, it is certain, as observed by Baron Parke in Reg. v. Baldry, 2 Den. C. C. 430, 445, that the rule against their admissibility has been sometimes carried too far, and its application, justice and common sense has too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. "Such a confession," said Eyre, G. _Z>., Rex v. WarickshaU, 1 Leach, C. C. 263, "is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt and, therefore, it is admitted as proof of the crime to which it refers." x\. confession is presumed to be voluntary unless the contrary is shown, or something appears in the confession or its attendant CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. 491 circumstances to combat such presumption. State v. Meyers, 99 Mo. 107; People v. Barker, 60 Mich. 277. And the jury are to determine for themselves whether the confession was made freely and voluntarily, without any influence of hope or fear; that if so, they could consider it, but if not, it is no evidence. This was a distinct recognition of the rule on the subject found in Holsen- bake v. State, 45 G-a. 44; Stallmgs v. State, 47 Ga. 572; Mitchell v. State, 79 Ga. 730; Bailey v. State, 80 Ga. 359. In any circum- stance, if information derived from a confession leads to a discov- ery of material facts which go to prove the commission of the crime alleged, so much of the confession as strictly relates to the facts discovered, and the facts themselves, are admissible in evi- dence, although the confession may not be shown to have been voluntary., Lowe v. State, 88 Ala. 8. § 308. Judge to Decide if Confession is Voluntary.— When a confession, is offered in evidence, the question whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that it is voluntary, it is admissible; otherwise it should be excluded. When there is conflicting testimony, the humane practice is for the judge, if he decides that it is admissi- ble, to instruct the jury that they may consider all the evidence, and that they should exclude the confession, if, upon the whole evidence in the case, they are satisfied that it was not the volun- tary act of the defendant. Com. v. Cuffee, 108 Mass. 285; Com. v. Nott, 135 Mass. 269; Com. v. Smith, 119 Mass. 305; Com. v. Preece, 140 Mass. 276. § 309. Presumption as to. — In the absence of all evidence, the presumption is that a confession is voluntary; and when the party confessing objects that confessions are not voluntary, he is called upon to show at least enough to rebut such presumption. Com. v. Culver, 126 Mass. 464. A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given to such evidence, namely: that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made, either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by or in the presence of such person, in reference to such charge. Ilopt v. Utah, 110 U. S. 574, 28 L. 492 LAW OF EVIDENCE IN CRIMINAL CASES. ed. 202. This must not be construed as holding that, a con- fession made by a defendant on the simple advice of an officer that he "had better tell- the truth" is free and voluntary [State v. Mi > hms, 41 La. Ann. 543) but confessions are always admissible if no inducement was held out or threat made, or anything done to induce the accused to believe that it would be better for him to confess, and worse if he did not. State v. Moorman, 27 S. C. 22. § 310. If Elicited by Fear or Menace should be Rejected. — The general principle is well settled, that the confessions of par- ties in civil suits or criminal prosecutions, are to be received in evidence. It is equally clear that confessions made under some circumstances are not admissible. Where they are entirely vol- untary, they are to be received; but where they are drawn out by any expectation of favor or by menaces, they are to be rejected. In determining this question, it is proper to take into view the reason on which confessions so drawn out are excluded. It is not because of any breach of good faith in admitting them, nor because they are extorted illegally (though there may be cases in which this would exclude them, as where a magistrate puts the arc used upon his oath) but the reason is, that in the agitation of mind in which the party charged is supposed to be, he is liable to be influenced by the hope of advantage, or fear of inquiry, to state things which are not true. Corn. v. Knapp, 9 Pick. 496, 20 Am. Dec. 491. The reasoning that prevailed in the Massachusetts case last cited led the New York court of appeals to declare that an accused who has signed a confession that he committed the crime of which he is charged, in concert with others, has the right to prove, if he can, that the important parts of the confession were not entitled to any credit with the jury, especially where he was indicted jointly with some of the persons described in the confession as his confederates. People v. Fox, 121 N. Y. 449. No reliance whatever can be placed upon admissions of guilt < il >tai ned by means of threats or promises; for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them. The cases of State v. Phelps, 11 Vt. 116, 34 Am. Dec. 672; State v. Walker, 34 Vt. 296; Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; State v. Bostick, 4 Harr. (Del.) 563; State v. CONFESSIONS, CONDUCT AND DEMEANOR OF THE, ACCUSED. 493 Guild, 10 K J". L. 192, 18 Am. Dec. 404; Spears v. State, 2 Ohio St. 583; Com. v. Taylor, 5 Cush. 605; Com. v. Tvckerman, 10 Gray, 190; Smith v. State, 10 Ind. 106; Miller v. People, 39 111. 457; Cain v. State, 18 Tex. 387; Davis v. State, 2 Tex. App. 588; Van Bun n v. State, 24 Miss. 512; Jordan v. State, 32 Miss. 382; People v. Barrio, 49 Cal. 342; State v. Fiwyfc, 37 N. H. 175; JftZ- te>* v. State, 40 Ala. 54; Porter v. State, 55 Ala. 95; -State v. Whitfield, 70 N. C. 356, and State v. Hagan, 54 Mo. 192, may all be cited in support of the views here expressed and the list might easily be increased very considerably. People v. Wolcott, 51 Mich. 612. As we have seen, if the confession is not elicited by any prom- ise or threat and is voluntary on the part of the accused, it is admissible. Peoplt \. Wentz, .".7 N. Y. 309. It is not sufficient to exclude a confession by a prisoner that he was under arrest at the time, or that it was made to the officer in whose custody he was, or in answer to questions put to him, or that it was made under hope or promise or a benefit of a collateral nature. Joy, Confessions, § 13; Rex v. Lloyd, 6 Car. & P. 393; State v. Tatro, 50 Vt. 483. A distinction should be recognized in this connection, which rejects evidence of a confession extorted during the excitement and turmoil of riot, mob violence, or other forcible means. In such cases the imminent danger of great bodily harm may prompt a person to solemn statements even under oath, the only object of which is to avoid the peril and apprehension of the moment. Young v. State, 68 Ala. 569; State v. Revells, 34 La. Ann. 381, 44 Am. Rep. 430; Miller v. People, 39 111. 457; Jordan v. Stat, , 32 Miss. 382. The theory underlying the principle in the text last cited, is of extending influence and in many jurisdictions the rule obtains that where the confession is induced by some promise of favor or threat of harm emanating from some person of official character, or believed by the accused to sustain an official relation, the con- fession should be excluded. Spears v. State, 2 < >hio St. 583; < om. v. Tuckerman, 10 Gray, 173; Peopli v. Wolcott, 51 Mich. 612; State v. Revells, supra. The foregoing reasoning will exclude a confession of crime, by one who was told that if he did not confess to the speaker he would have to confess to a justice of the peace. Johnson v. State, 494 LAW OF EVIDENCE IN CRIMINAL CASES. 76 Ga. 76. And, similarly, a confession is not admissible when* made by a defendant who sought the sheriff to find out if a con- fession would not be better for him, and was encouraged by the sheriff to think that it would be. People v. Thompson, 84 Cal. 598. AVhen a confession has been obtained through illegal influences, such influences will be presumed to continue and color all subse- quent confessions, unless the contrary is clearly shown. Coffee v. State, 25 Fla. 501; Murray v. State, 25 Fla. 528. Any, the slightest, menace, or threat, or any hope engendered or encouraged that the prisoner's case will be lightened, melio- rated, or more favorably dealt with, if he will confess — either of these is enough to exclude the confession thereby superinduced. Any words spoken in the hearing of the prisoner, which may in their nature, generate such fear or hope, render it not only proper but necessary that confessions made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made, after all trace of hope or fear had been fully withdrawn or explained away, and the mind of the prisoner made as free from bias and intimidation as if no attempt had ever been made to obtain such confessions. Ow< n v. State, 78 Ala. 425. " Public policy absolutely requires the rejection of confessions obtained by means of inducements held out by persons in au- thority. It may be true, even in such cases, owing to the variety and character of the circumstances, that the promise may not in fact induce the confession. But as it is thought to succeed in a. large majority of instances, it is wisely adopted as a rule applicable to them all. "We cannot too strongly urge on the district attorneys never to offer evidence of confessions, except it has first been made to appear that they were made voluntarily." People v. Barrie, 49 Cal. 345. § 311. Great Caution Enjoined in Receiving. — To be rele- vant and hence admissible, it must clearly appear that the confes- sion was entirely voluntary. The reason for this rule is very well stated in Slate v. Melds, Peck (Tenn.) 140, that "the evidence of such confession is liable to countless abuses. They are made by persons, generally, under arrest, in great agitation and distress, when each ray of hope is eagerly caught at, and frequently under the delusion, though not expressed, that the merit of a disclosure CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. 495 will be productive of personal safety. To disclose the confession is odious as a breach of confidence, which it is at all times. The confession is made in want of advisers, under circumstances of desertion by the world, in chains and degradation, with spirits sunk, fear predominant, hope fluttering around, purposes and views momentarily changing, a thousand plans alternating, a soul tormented with anguish, and difficulties gathering into a multitude — how easy it is for the hearer to take one word for another, or to take a word in a sense not intended by the speaker, and, for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of the one who made the confession, how almost impossible it is to make a third person understand the exact state of his mind and meaning. For these reasons such evidence is received with great distrust and under apprehensions of the wrong it may do. Its admissibility is made to depend on it being free of the suspicion that it was obtained by any threats or severity or promise of favor, and of every influ- ence, even the minutest." Jit hit v. State, 20 Neb. 492, 57 Am, Kep. 835. As previously stated, before the confessions of a party charged with crime are admissible in evidence against him, it must be shown that such confession was freely and voluntarily made. This widely accepted rule is sustained by numerous authorities. See Thompson v. Com. 20 Gratt. 724; Simon v. State, 5 Fla. 285; State v. Carr, 37 Vt. 191; Dixon v. State, 13 Fla. 636; State v. Walker, 34 Vt. 296; Metzger v. State, 18 Fla. 481; Com. v. Wltittemore, 11 Gray, 201; Flanagin v. State, 25 Ark. 92; Com. v. Tuckerman, 10 Gray, 173; State v. Stalcy, 14 Minn. 105; State v. Squires, 4S K H. 364; Cady v. State, 44 Miss. 332; People v. Phillips, 42 K Y. 200; State v. Loivhorne, 06 N. C. 63S; State v. Howard, 17 K H. 171; O'Brien v. People, 48 Barb. 274; Frain v. State, 40 Ga. 529; Vaughan v. Com. 17 Gratt. 576; State v. Broekman, 46 Mo. 566; Price v. State, 19 Ohio, 423 ; Frank v. State, 39 Miss. 705; Mose v. State, 36 Ala. 211; State v. Ostrander, 18 Iowa, 435; Aaron v. State, 37 Ala. 106; Austine v. People, 51 111. 236; Joe v. State, 38 Ala. 422; Miller v. People, 39 111. 457; Love v. State, 22 Ark. 336; People v. Jim Ti, 32 Cal. 60, But it is a rule of law of equally wide acceptance that the con- fessions of parties charged with crime should be acted upon by 496 LAW OF EVIDENCE IN CRIMINAL CASES. courts and juries with great caution. Deathridge v. State, 1 Sneed, 75; People v. Johnson, 41 Cal. 452; Simon v. State, supra; Dixon v. State, L3 Fla.636; Metzger v. State, 18 Fla.481; P^fe v. /,'s5 Mo. 145; State v. Rush, 95 Mo. L99; State v. Mitchell, 61 N. C. 447; Heldt v. State, 20 Neb. 492, 57 Am. Peep. 835; Com, v. Hanlon, 3 Brewst. 401.' The infirmities that attend a confession made by one under the influence of liquor equally apply to those made by one in sleep. In b< »th instances, the absence of knowledge as to the scope, nature and effect of the statement made, is a ground for exclusion. See People v. Robinson, 19 Cal. 40. Where, however, the confession is obtained as the result of an artful intrigue, or disingenuous practices and even gross false- hood, the confession is none the less admissible, if it sufficiently appears that, while induced by these reprehensible methods, it was >till voluntarily elicited, and did not originate in threats or pr< >mises operating upon the mind of the accused. King v. State, Gates v. People, State v. Phelps, State v. Mitchell, People v. Barker, State v. Jones, State v. Rush, State v. Fredericks, Com. v. Hanlon, State v. Staley and Heldt v. State, supra. CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. 499 § 316. Confession Obtained by Improper Influence. — Although an original confession may have been obtained by im- proper means, subsequent confessions of the same, or of like facts, may be admitted, if the court believe, from the length of time intervening, from proper warning, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled. A prisoner may be convicted on his own confession, when proved by legal testimony, although it is uncorroborated by any other evi- dence, provided the corpus delicti be proved. Corroborating circumstances, used in reference to a confession, are such as serve to strengthen it, to render it more probable, such in short, as may serve to impress a jury with a belief of its truth. State v. Guild, 10 N. J. L. 192, 18 Am. Dec. 404. The rule may be expressed as follows: When one confession is denied admission because improperly obtained, a subsequent confession is equally incompetent as evidence, unless it should satisfactorily appear that such an interval of time had elapsed be- tween the two confessions as to warrant the presumption, that the infirmities connected with the first confession had been effectually removed. In other words, if the inducements that prompted the first confession have disappeared, and there is reason to believe that they in no wise prompted the subsequent confession, it should be regarded as relevant testimony. Porter v. State, 55 Ala. 95: Bttr// v. United States, 2 Colo. ISO; Bonner v. State, 55 Ala. 242; People v. Johnson, 41 Cal. 452: McAdory v. State, 62 Ala. 154: Love v. State, 22 Ark. 336; Owen v. State, 78 Ala. 425; Si- mon v. State, 5 Fla. 285; State v. Guild, 10 K J. L. 192, 18 Am. Dec. 404; State v. Chambers, 39 Iowa, 179; People v. Barker, 60 Mich. 277; People v. Robertson, 1 Wheel. Crim. Cas. 66; Brister v. State, 26 Ala. 129; Com. v. Knapp, 9 Pick. 49*;, 20 Am. Dec. 491; State v. Jones, 54 Mo. 47b; People v. Jim 7V, 32 Cal. 60; Com. v. Taylor, 5 Cush. 605; Statt v. Super, 16 Me. 293; Com. v. CulUn, 111 Mass. 435; StaU v. Lowhorne, <66 N. C. 638: State v. Frazier, 6 Baxt. 539; State v. Wintzingerode, 9 Or. 153; Beg- garly v. State, 8 Baxt. 520. §317. New York Rule Relative to. — "A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made 500 LAW OI<' EVIDENCE IN CRIMINAL CASES. upon a stipulation of the district attorney, that he shall be prose- cuted therefor." N. Y. Code Crim. Proc. § 395. All a party has said, which is relevant to the question involved in the trial, is admissible in evidence against him. The excep- tions to this rule are where the confession has been drawn from the prisoner by means of a threat or a promise, or where it is not voluntary, because obtained compulsorily or by improper influ- ence. Hendrickson v. People, 10 1ST. Y. 21, 61 Am. Dec. 721. No rule of evidence has probably been more sharply criticized upon ethical grounds than this, not so much as to the admissibility of confessions against persons accused of crime, but rather as regards the methods permitted for obtaining the information. It must be admitted that in the use of this rule the moralist would find many instances where the end seems made to justify the means. "Improper influence" was never eagerly sought under the old rule, and has no place among the limitations of the code. Ac- cordingly it happens that officers of the law, skilled in eliciting information, and zealous (the critics say) to secure conviction in any event, are permitted to use every form of art and artifice short of the prohibition of the statute. Thus an officer may pur- posely ply the suspected person with liquor. Jefferds v. People, 5 Park. Crim. Rep. 522. lie may resort to all manner of decep- tion {Jefferds v. People, supra; People v. Wentz, 37 X. Y. 303) even to the length adopted in the recent Brooks murder trial at St. Louis, where the detective obtained indictment and imprison- ment of himself for a feigned crime, in order to become a fellow- prisoner of the accused, for the purpose of winning his confidence. State v. Brooks, 92 Mo. 512; Morrill, Competency & Privilege of Witnesses, chap. 8, p. 95. All confessions material to the issue, voluntarily made by a party, whether oral or written, and however authenticated, are admissible as evidence against him on a trial for a criminal offense. People v. Wentz, supra. % 318. Demeanor of the Accused when under Arrest— Effect of Silence. — The fact that a person charged with a crime is under arrest, does not render what he says or does inadmissible. People v. 11 r entz, :57 X. Y. 303; People v. Montgomery, 13 Abb. Pr. N. S. 209; People v. Long, 43 Cal. Ill; Com. v. Cuffee, 108 Mass. 285; Com. v. Crooner, 108 Mass. 461. What a third person says in the presence of a person charged, is admissible against CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. 501 him if he remains silent. His silence must be taken as an acqui- escence in its truth. McKee v. People, 36 N. Y. 116; Hochrieter v. People, 2 Abb. App. Dec. 363; Cases in K Y. Ct. Apps., Ct. Apps. Lib. vol. 144, case 1, pp. 10, 11; Donelly v. State, 26 N. J. L. 464, 601; Rex v. BarUett, 7 Car. & P. 832; Com. v. Kenney, VI Met. 235, 46 Am. Dec. t',7i>: Sp< ncer v. State, 20 Ala. 24; Rex v. Smithies, 5 Car. & P. 332; People v. McCrea, 32 Cal. 98; Li wis v. Blair, 3 Irvine. 16; Fenno v. Weston, 31 Vt. 345; Mat- tocks v. Lyman, 16 Vt. 113; Liles v. State, 30 Ala. 24, 68 Am. Dec. 108; Johnson v. State, 17 Ala. 624; Martin v. State, 2S Ala. 81; Fralich v. People, *'»•"> Barb. 48; Jewett v. Banning, 21 X. Y. 27; Phil. A: Am. Ev. § 696; Joy, Confessions. 77; Best, Presump- tions, § 241; Burrill, Circ. Ev. 482, 483; McDonald, Crim. L. of Scotland, 543; 2 Russell, Crimes, 866; 1 Phil. Ev. 400; 1 Taylor, Ev. (0th ed.) § 739. Statements made by the accused as a wit- ness in exculpation of another charged with the same offense, may be proved. MacDonald, Crim. L. of Scotland, 543; Edmondston's Case, 1 Scotch L. R. 107; 2 Russell, Crimes, 865, 866. When there is a question of identity it is proper to show that a witness, unacquainted with a party, identified him shortly after the occur- rence. Reg. v. Blackburn, 6 Cox, C C. 333; Rex v. Deering, 5 Car. & P. 165. The voluntary declarations and admissions of one on trial for a criminal offense, that is. those not made under duress, or induced by menaces <>r promises, are always evidence against the party making them, and are more or less cogent as evidence of guilt, depending upon the circumstances under which they are made. The same principle gives great effect to the action of the accused as evidence tending to prove or disprove his guilt. Teachout v. People, 41 N. Y. 7; People v. Wentz, 37 K Y. 303; Com. v. Cuffee, L08 Mass. 285; Com. v. Crocker, 108 Mass. 464. When tbe conduct of the accused, either before or after being charged with the offense, is given in evidence, it is for the jury to draw the proper inferences and determine whether it is consistent with innocence, or is indicative of a guilty mind, proving more or less conclusively the commissions by him of the particular offense charged. Roscoe, Crim. Ev. 18; People v. Rathbun, 21 Wend. 509. Where an individual is charged with an offense, or declarations are made in his presence and hearing, lunching or affecting his guilt or innocence of an alleged crime, and he remains silent when 502 LAW OB' EVIDENCE IN CRIMINAL CASES. it would be proper for him to speak, it is the province of a jury to interpret such silence, and determine whether his silence was, under the circumstances, excused or explained. At most, silence under such circumstances is but an implied acquiescence in the truth of the statements made by others. Still, it is a familiar ele- mentary principle, that silence, when the accused is under no restraint and at full liberty to speak, may sometimes be regarded as a tacit admission. At all events all such matters are proper for the consideration of the jury. Pierce v. Goldsberry, 35 Ind. 317; Puett v. Beard, 86 Ind. 104. The case of Com. v. Kenney, 12 Met. 235, 46 Am. Dec. 672, does not conflict with the general principle, but suggests impor- tant limitations in its application and in the extent of its operation. If the statement is not heard by the accused, or if being heard, he deny it, or if circumstances existed at the moment which pre- vented a reply or rendered a reply inexpedient or improper, the evidence certainly is of no value. Donnelly v. State, 26 N. J. L. 464. A confession may be inferred from the conduct and demeanor of a prisoner when a statement is made in his presence affecting himself, unless such statement is made under circumstances which prevented a reply. Bex v. Bartlett, 7 Car. & P. 832; Joy, Con- fessions, 77; 1 Greenl. Ev. § 215; 1 Phil. & Am. Ev. 422. In the most recent treatise on criminal law, the rule is thus stated: "Where a man, at full liberty to speak, and not in the course of a judicial inquiry, is charged with a crime, and remains silent, that is, makes no denial of the accusation by word or ges- ture, his silence is a circumstance which may be left to the jury." Whart. Am. Crim. L. § 696. In civil actions the same principle prevails. What is asserted in the presence of a party to a suit, and not contradicted by him, is received on the ground that his silence is an admission of the truth of what was said. Batturs v. Sellers, 5 Harr. & J. 119; 2 Phil. Ev. (Cowen & Hill's Notes) 192, note, 191. The degree of credit due to such tacit admissions is to be esti- mated by the jury under the circumstances of each case. 1 < J-reenl. Ev. § 215. It is admitted that such evidence should always be received with great caution. In some eases it may be equivocal and of the lightest possible value, in others it may be entitled to much weight. CONFESSIONS, CONDUCT AND DEMEANOR OF THE ACCUSED. 503 Its value, of necessity, must be estimated by the jury. If it be doubtful whether the jury heard or understood the proposition to which his silent assent is claimed, the jury may determine it. State v. Perkins, 10 N. C. 377; Berry V. State, 10 Ga. 511; 2 Phil. Ev. (Cowen & Hill's notes), 194, note 191. In Greenfield v. People, 85 N. Y. 85, 39 Am. Rep. 636, Judge Miller says: "The acts and conduct of a party at or about the time when he is charged to have committed a crime are always received as evidence of a guilty mind, and while, in weighing such evidence, ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted. . . . And the demeanor of the prisoner at the time of his arrest, or soon after the commission of the crime, or upon being charged with the offense, is a proper subject of consideration in determin- ing the question of guilt. Such indications, however, are by no means conclusive, and must depend greatly upon the mental char- acteristics of the individual." The conduct of a person charged with crime, immediately after the commission, is always the proper subject of inquiry. If he attempts to run away, or hide and evade the officer, it is a circum- stance proper to go to the jury. As has been said, the conduct and demeanor of the prisoner at the time of his arrest, or soon after the commission of the crime, may go to the jury as evidence of a guilty mind, and, so far as the testimony was confined to a reasonable time after the discovery of the crime and his arrest, it was certainly admissible. Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636; State v. Baldwin, 36 Kan. 1. It is an important circumstance always — the conduct of the per- son charged with the crime when they first hear of the offense committed; and also their conduct when the crime is first charged home upon them. Kow, among the ordinary evidences of guilt, is also the conduct of the party after the deed is committed. Flight and concealment are considered very strong evidences of guilt always. When it is in the power of the person to explain, his failure to do so is strong presumptive evidence against him. G<>r/> v. People, 33 N. V. 501. In closing my observations upon this subject it may be well to say that all confessions are prima facie involuntary and inadmissi- 504 LAW OF EVIDENCE IN CRIMINAL CASES. ble. People v. Rodriguez, 10 Cal. 50; People v. Ah How, 34 Cal. 218; People v. Gelabert, 39 Cal. 663; Biscoe v. State, 67 Md. 6. Nor are confessions presumed to have been voluntarily made when the party making it is restrained of his liberty, or is in immediate apprehension of irreat bodily harm. Hudson v. Com, 2 Duv. 531; X< <'-),, an v. State, 49 Ala. 9; Pick v. State, 30 Miss. 593; Miller v. People, 39 111. 457: State v. Berry, 21 Me. 171; Stephen v. State, 11 Ga. 225; Simon v. State, 5 Fla. 285; Com. v. Chabbock, 1 Mass. 144; UV^Ay v. tfteite, 11 Ga. 123; People v. Smith, 15 Cal. 408; procure conviction, it has been customary for judges presiding at the trial to instruct juries that it was ordinarily un- safe to convict upon the unsupported and uncorroborated evidence of the accomplice. Such instructions, however, have been merely advisory. Haskins v. People, supra. § 322. Caution against the Infirmities of this Evidence. — As a matter of theory, one charged with crime may be convicted EVIDENCE At'FOKDED HY ACCOMPLICES. 507 upon the evidence of an accomplice alone. As a matter of prac- tice, courts caution juries against reliance upon the testimony of accomplices, unless corroborated by independent evidence. Rob- erts v. People, 11 Colo. 213; Whart. Crim. Ev. §441. "An accomplice is an admissible witness; but, as he comes be- fore the court under suspicious circumstances, his testimony ought to be received with great caution. As a general rule, it will be unsafe to convict upon the testimony of an accomplice alone, un- corroborated by other testimony. It ought to be corroborated in material facts connecting the prisoners, and each of them with the crime; but the degree of credit to be given to the testimony of an accomplice, and the amount of corroboration necessary to render it satisfactory, are matters to be considered and determined by the jury." State v. Maney, 51 Conn. 178. The rule of law is, that a jury may convict on the evidence of an accomplice alone, if they believe it; but it is usual for the courts to say to the jury that they should not do it, and that they should have corroboration of his testimony before they would •convict. Carroll v. Com.. 84 Pa. 107. In People v. Noelhe, 29 Hun,461; 1 K Y. Crim. Rep. 252, it was held that one purchasing a Lottery ticket for the purpose of showing that the vendor was engaged in a violation of the statute was not an accomplice with the person from whom the ticket was purchased. See also People v. Noelke, '.'1 N. Y. 137; 1 X. Y- Crim. Rep. 195, 16 Am. Rep. 128, and Com. v. Willard, 22 Pick. 476. In the case of People v. Smith, 28 Hun. 626, 1 N. Y. Crim. Rep. 72, the defendant was convicted of a violation of the excise law in selling beer in quantities of less than five gallons without ■a license, and all the evidence under which she was convicted was given by the person to whom the sale was made. It was objected that, under section 397 of the Cede of Criminal Procedure, pro- hibiting a conviction upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, the prisoner could not be convicted upon the uncorroborated testimony of the witness. This objection was held to be untenable by the general term of this department, it being determined that as the excise law madeonlythe person selling, and not the purchaser, guilty of a criminal act, the purchaser was not an accomplice within the 5U8 LAW OF EVIDENCE IN CRIMINAL CASES. meaning of said section of the code. But the language of Daniels, J., in the case of People v. Sm ith, disposes of this objection. The learned judge says, "The purchaser has been subjected to no criminal accountability whatsoever, and by the mere purchase he could not be a participant in the offense. That was performed wholly and exclusively by the defendant, for she, unaided by the purchaser, acted alone in making the sale. An accomplice is a person involved either directly or indirectly in the commission of the crime. To render him such, he must in some manner aid, or assist, or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party, by reason of the criminal transaction.'' See Com. v. WUliard, 22 Pick. 4 7*>; Com. v. Downing, 4 Gray, 20: Campbell v. Com. 84 Pa. IsT: Statt v.McKean,B6 Iowa, 343, 14 Am. Kep. 530; St. Charles- v. (TMaiUy, IS ill. 4<>7; Smith v. State, 37 Ala. 472; People v. Farrell, 30 Cal. 316. Duer, Ch. •/.. says: u The principle deducible from the cases undoubtedly is, that an accomplice, although a competent witness against the associates and partners of his guilt is, nevertheless, only admissible from reasons of judicial necessity and policy, and in furtherance of the essential ends of public justice. And the question always addresses itself to the discretion of the court; not to their judgment as to the general competency of the witness, but to their sound legal discretion, whether, upon a full consider- ation of the facts and circumstances of the case, he shall be per- mitted to testify under an implied promise of pardon, which vests in him an equitable title thereto, if he speaks the truth." People v. Whipple, !» Cow. 707. Accomplice's, whether related as principal and accessory or equally concerned in guilt, are competent witnesses for each other, except when under a joint indictment. If tried under joint in- dictment, whether tried together or separately, neither is com- petent for the other. Abbott, Trial Brief, § 375. § 323. Corroborative Testimony should be Required. — As we have seen, it is competent for the jury to convict upon the uncorroborated testimony of an accomplice, and when corrobora- tion is deemed safe, or even necessary, the rule as to the manner and extent of the corroboration is not definitely settled. Learned judges have differed on the subject. Chief Baron Joy, in his treatise on the Evidence of Accomplices, page OS, after reviewing EVIDENCE AFFORDED BY ACCOMPLICES. 5U9 the cases, says: "The only rule, therefore, which has the appear- ance of reason to support, is that which I have endeavored to show, has uniformly and without an exception been laid down and acted upon by the English judges, which is, that the 'confir- mation ought to be in such and so many parts of the accomplice's narrative as may reasonably satisfy the jury that he is telling truth,' without restricting the confirmation to any particular points, and leaving the effect of such confirmation (which may vary in its effect, according to the nature and circumstances of the particular case) to the consideration of the jury, aided in that consideration by the observations of the judge." In Rex v- Birkett, 1 Russ. & R. 251, the twelve judges agreed that "an accomplice did not require confirmation as to the person he charged if he was confirmed as to the particulars of his story." In Reg. v. Farlar, 8 < !ar. & P. 106, Lord Abinger, Ch. B., said: "It is a practice which deserves all the reverence of law that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material circumstance. Now, in my opin- ion, the corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case; and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corrobo- ration at all. The danger is that when a man is fixed, and knows that his own guilt is detected, he purchases immunity by falsely accusing others." State v. Chyo OhiagJc, 02 Mo. 395. To sufficiently corroborate the testimony of the accomplice there should be some fact testified to entirely independent of the accomplice's evidence, which, taken by itself, leads to the infer- ence, not only that a crime has been committed, but that the defendant is implicated in it. People v. Elliott, 5 JNT. Y. Crim. Rep. 204. Corroborative evidence is any evidence which properly induces the belief that the facts testified to by the accomplice are true. Rex v. Jones, -*!1 How. St. Tr. 251, 325; Thompson, />.,in Rex v. Swallow, 31 How. St. Tr. 967, 980; -Joy, Evidence of Accom- plices, 68, 98. Such evidence must corroborate some material portion of the accomplice's testimony. ( '<■>///. v. Bosworth, 22 Pick. 397. Material testimony is such testimony as may properly 510 LAW OF EVIDENCE IN CKIM1NAL CASES. influence the result of the trial. Melluish v. Collier, 15 Q. B. 878; Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; 2 Bou- vier, Law Diet, title Materiality; 1 Stark. Ev. (4th ed.) 822. Whenever corroboration is required it must be as to material facts. P t opli v. Plath, 100 K Y. 593, 53 Am. Kep. 236; People v. ( 'ourtney, 28 Hun, 589; People v. Williams, 29 Hun, 520; Ormsby v. People, 53 X. Y. 474; Kenyon v. People, 26 N. Y. 2i» 7, 84 Am. Dec. 177; Boyce v. People, 55 K Y. 645; Armstrong 1 v. People, 70 N. Y. 38. The corroborative evidence must go to prove the entire crime and not only one or more of its constituent elements; and proof of one element is no proof of another. People v. Plath, 100 N. Y. 590, 4 N. Y. Crim. Kep. 53. "There must be some fact deposed to independently altogether of the evidence of the accom- plice, which taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it." People v. Plath, supra. "Such evidence as merely raises a suspicion of guilt is insufficient to satisfy the requirement of section 399; the evidence must carry conviction to the minds of the jury." People v. Williams, 1 K Y. Crim. Kep. 344. "The corroboration of any witness needing support ought to be by some tact, the truth or falsehood of which goes to prove or disprove the offense charged." Frazer v. People, 54 Barb. 310. The additional evidence here, if any, being purely presumptive,. it is important to bear in mind the principles by which the pro- bate force of circumstantial evidence is determined and measured. Peoplt v. Kennedy, 32 N. Y. 145. "All proof must begin at a fixed point. The law never admits of an inference from an infer- ence. Two imperfect things cannot make one perfect. . . . The circumstance itself from which the inference is to be drawn, is never to be presumed, but must be substantially proved; for who can prove one doubtful thing by another ?" Phillips, Theory of Presumptive Proof; Lawson, Presumptions, 569. "To take pr< sumptions in order to swell an equivocal and ambiguous fact into an criminal fact, is an entire misapprehension of the doctrine of presumptions." Evans v. Evans, 1 Hagg. Consist. Rep. 105. "In determining a question of fact from circumstantial evidence, there are two general rules to be observed; First, the hypothesis of guilt should flow naturally from the facts proved, and be con- tinent with them all; second, the evidence must be such as to EVIDENCE AFFORDED BY ACCOMPLICES. 511 exclude, to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him; or, in other words, the facts proved must all be consistent with and point to his guilt not only, but they must be inconsistent with his innocence." People v. Bennett, 49 N. Y. 137; People v. Stokes, 2 K Y. Crim. Rep. 382. "If the facts be consistent with innocence, they are no proof of guilt." Ormsby v. People, 53 N. Y. 475; People v. Courtney, 28 Hun, 593; Preiser v. People, 54 Barb. 309; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391. "Conduct being susceptible of two opposite explanations, we are bound to assume it to be moral rather than immoral." Port v. Port, 70 111. 484; Mason v. State, 32 Ark. 239; Carroll v. Quynn, 13 Md. 379. "Where the facts of a case are consistent with honesty and dishonesty, a judicial tribunal will adopt the construction in favor of innocence." Greenwood v. Lowe, 7 La. Ann. 197. "If a fair construction of the acts and declarations of an individual do not convict him of an offense — if the facts may all be admitted as proved, and the accused be innocent, should he be held guilty? . . . He may be guilty, but he may lie innocent." United States v. The Bur- dett, 34 U. S. 9 Pet. 082, 9 L. ed. 273; Frazer v. People, 54 Barb. 306. § 324. Extent of Corroboration is for the Jury.— The degree of evidence which shall be deemed sufficient to corroborate the testimony of the accomplice, is for the determination of the jury. The law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime so that his conviction will not rest entirely upon the evidence of the accomplice. People v. Everhardt, 104 N. Y. 591. Among the authorities that may be cited to sustain the averments of the text are the following: Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391; People v. OP Neil, 109 K Y. 267; State v. Maney, 54 Conn. 178; People v. Jaehne, 6 N. Y. Crim. Rep. 237; People v. Kerr, 6 N. Y. Crim. Rep. 406; People v. Ridker, 7 N. Y. Crim. Rep. 22; Berry v. People, 1 N. Y. Crim. Re]). 57; Peopl v. Hooghherh, 96 K Y. 149; People v. Sherman, 103 N. Y. 513; People v. Ryland, 97 K". Y. 126; Peopli v. Davis, 21 Wend. 309; People v. McCallam, 5 N. Y. Crim. Rep. 143; Maine v. People, 9 Hun, 113; People v. Sharp, 5 N. Y. Crim. Rep. 388; People v. Lawton, 56 Barb. 126; People v. Thomsen, 3 N. V. Crim. Rep. 562; People v. Haynes, 55 Barb. 450; People v. Emerson, 20 JN. 512 LAW OF EVIDENCE IN CRIMINAL CASES. Y. S. R. 18; Frazer v. People, 54 Barb. 306; People v. Runge, 3 N. Y. Crim. Rep. 85. We have seen that the rule requires in order to secure a convic- tion, that the evidence of an accomplice should be corroborated, but this corroboration need not extend in matters of particularity to the entire story of the accomplice. It is sufficient if the sub- stance of his story is sustained by the confirmatory matter. .£55- ttmjer v. Com. Us l'a. 338. And confirmation maybe found in the testimony of the wife of the accomplice. State v. Myers, 82 Mo. 558, 52 Am. Rep. 389. The province of corroborative evidence is, by confirming the testimony of the accomplice in regard to matters which are not within the general knowledge but likely to be known only to those engaged in the crime, to induce the belief that he is to be generally credited in his statements. Its weight is for the jury, and there is no established rule of law which requires the judge, in a case where there is corroborative evidence of this character upon matters material to the issue, to advise the jury to acquit unless there is also corroboration of the statements connecting the defendant with the crime. Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81. In Com. v. Bosworih, 22 Pick. 307, the court says, as to the kind of corroboration required: "It is perfectly clear that it need not extend to the whole testimony; but, it being shown that the accomplice has testified truly in some particulars, the jury may infer that he has in others. But what amounts to corroboration? We think the rule is, that the corroborative evidence must relate to some portion of the testimony which is material to the issue." In that case the evidence, held to be competent as corroborative, confirmed the accomplice as to a fact which did not tend to con- nect the defendant with the crime. Since this decision, it has been usual to instruct the jury in substantial compliance with the rule stated therein, though the practice of different judges in the exercise of their discretion has varied. Com. v. Brooks, 9 Gray, 299; Com. v. Price, 10 Gray, 472, 71 Am. Dec. 668; Com. v. (>' llr'nu.Vi Allen. 183; Com. v.Zarrabee, 99 Mass. 413; Com. v. Elliot, 110 Mass. 104; Com. v. Snow, 111 Mass. 411. See also Reg. v. Stubbs, Dears. C. C. 555, 7 Cox, C. C. 48. The principles which underlie the theories previously stated have been repeatedly vindicated by modern adjudication, and are EVIDENCE AFFORDED BY ACCOMPLICES. 513 so thoroughly in harmony with the most obvious principles of justice, that in many jurisdictions the rule has emerged from its chrysalis condition and assumed the more dignified proportions of a statutory law. Thus, in the well known Penal Code of Califor- nia, the rule is concisely stated in the following terms : "A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice, tends to con- nect the defendant with the commission of the offense, and the corroboration is not sufficient, if it merely shows the commit, m of the offense, or the circumstances thereof." Desty, Penal Code of California, § 1111. In the New York Code Criminal Procedure, § 399, a variant phraseology is employed expressive of the same intent. "A con- viction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the crime." The rule as to corroboration of accomplices is stated by the court in People v. Plath, 100 X. Y. 592, 53 Am. Eep. 236, as follows: ''Incases where corroboration is required, there has been some diversity of opinion in the authorities as to the partic- ular facts which should be corroborated and the extent of the corroboration needed in order to comply with the rule; but it is now conceded to l>e the general rule, that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices, it was the usual practice of trial courts to advise an acquittal, unless such evidence was in some respects corroborated by other testimony, although at com- mon law a conviction upon the evidence of the accomplice alone was sustainable. In those cases, the extent and degree of cor- roboration rested in the discretion of the trial court, and necessa- rily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish sonic help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Roscoe, Grim. Ev. 122, as follows: 'that there should be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime lias 33 514: LAW OF EVIDENCE IN CRIMINAL CASES. been committed, but that the prisoner is implicated in it.' Kus- sell, Crimes, 9(52, says : ' that it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged.' " It is not necessary that this corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to con- nect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant's innocence. The court should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to determine whether the corrol (oration is sufficient. As was said in People v. Everhardt, 104 N. Y. 591, "the law is complied with if there is some evidence fairly tending to connect the defendant with the commission of the crime, so that the conviction will not rest entirely upon the evidence of the accomplice." People v. Elliott, 106 N. Y. 288. Section 399 of the New York Code of Criminal Procedure, provides that "conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." Prior to the enactment of this section it was customary for judges to instruct jurors that they should not convict a defend- ant of crime upon the evidence of an accomplice unless such evi- dence was corroborated; and yet it was the law in this state that a defendant could be convicted upon the uncorroborated evidence of an accomplice, if the jury believed it. This section has changed that rule of law and requires that there should be simply corrob- orative evidence, which tends to connect the defendant with the commission of the crime. People v. Evans, 40 N. Y. 1; People v. Costello, 1 Denio, 83; Com. v. Downing, 4 Gray, 29; Whart. Am. Crim. L. 301; 1 Chitty, Crim. L. 904. Befo.e the enactment of this code, it was well established that a conviction of crime could properly be had upon the uncorrobo- rated testimony of an accomplice. People v. Costello, 1 Denio, 86; People v. Davis, 21 Wend. 313; Lindsay v. People, 63 K Y. 143. It was the general practice of trial courts to charge juries that it was unsafe to convict without confirmation of an accom- EVIDENCE AFFORDED BY ACCOMPLICES. 515 plice as to some material fact of the case ; this was not a rule of law, but rested in the sound discretion of the court, and the omission or refusal so to charge was not error. Lindsay v. Peo- ple, supra. ( 'uses would necessarily be very rare in which there would not be some corroboration of the accomplice as to some material fact; and it was entirely safe to leave the question of the credibility of an accomplice in the hands of the jury. An examination of the statute and of the cases in which it has received judicial construc- tion will clearly demonstrate the truth of this assertion. .In Com. v. Bosworth, 22 Pick. 399, Morton, J., in delivering the opinion of the court, said : u We think the rule is that the corroborative evidence must relate to some portion of the testi- mony which is material to the issue. To prove that an accomplice had told the truth in relation to irrelevant and immaterial matters, which were known to everybody, would have no tendency to confirm his testimony involving the guilt of the party on trial." See also Com. v. Holmes, 127 .Mass. 424. 34 Am. Rep. 391; Mar- ler v. State, 68 Ala. 580; Watson v. Com. 95 Pa. 424; State v. Graf, 47 Iowa, 384; Wddenv. State, 10 Tex. App. 400; Best, Ev. § 171. We have, then, the rule that the corroboration must be by proof of some fact tending to connect the defendant with the commission of the offense, independently of the testimony of the accomplice, and the test is to throw out all other evidence and see whether the evidence introduced tended to show that the defendant w T as connected with the offense. State v. Maney, 54 Conn. 178. The Texas supreme court held, in considering this question in Colejmcm v. State, 44 Tex. 109, that the rule of law forbidding a conviction on the testimony of an accomplice, unless corroborated by other testimony tending to connect the defendant with the offense committed, was under the statute positive and peremptory and that however much the jury might be disposed to credit the accomplice, the defendant could not be convicted legally, unless the evidence of the accomplice was confirmed in some material manner tending to show the defendant's guilt. And the learned justice said in that case, "To allow convictions to stand where the corroboration is only in immaterial matters, would be to violate both the letter and spirit of the statute, and to disregard these precautionary rules which experienced and wise jurists have 516 LAW OF EVIDENCE IN CRIMINAL CASES. deemed it necessary to adopt in order to guard against erroneous convictions based on evidence unreliable, because coming from a corrupt source." And in the case of State v. Thornton, 26 Iowa, 80, the court said : "Admitting, as we do, that corroborating evidence is to be sufficient, must not merely relate to the commis- sion of the offense or the circumstances thereof, but must be evi- dence of a character that shall connect the defendant with the commission of the alleged criminal act, it is the opinion of the court that evidence of this character was produced by the state." The corroborative evidence must be of some material fact and this was the rule in reference to the evidence of accomplices in this state, if corroboration were relied upon, and indeed, the general rule. What appears to be required is, that there should be some fact deposed, independently altogether of the evidence of the ac- complice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it. In the case of People v. Davis, 21 Wend. 309, the charge excepted to was that the accomplices of the prisoner were not to be believed by the jury unless confirmed by other credible wit- nesses in respect to the facts connecting the prisoner with the possession of the forged bills, or with the manufacture of them; but the court declared that no error had been committed, because it was not necessary by existing rules that every part of the testi- mony should be confirmed, the question usually being whether the jury will believe the witness in such parts of his narrative as the confirmation extends to, and quoted with approbation by the observation of Mr. Justice Anderson in summing up the case of Hex v. Wilkes, 7 Car. & P. 272, namely, that the confirmation he always advised juries to require, was the confirmation of the ac- complice in some facts which went to fix the guilt on the partic- ular person charged. This subject has been very largely discussed. Xote to Ala. Code of 1SS6, §1176; 1 Am.&Eng. Enc. Law, 78; note to Com. v. Price, 10 Gray, 172, 71 Am. Dec 671; Lumpkin v. State, 68 Ala. 56; People v. Haynes, 55 Barb. 450; People v. Clough, 73 Cal. 318. The fullest and ablest discussion of the question to which our attention has been directed is in Com. v. Holmes, 127 Mass. 421, 34 Am. Rep. 391. The opinion was by Gray, Ch. J., now Asso- ciate Justice of the Supreme Court of the United States. Among other things, he said: "Evidence which tends to prove the guilt EVIDENCE AFFORDED BY ACCOMPLICES. 517 of the defendant is sufficient by way of corroboration, although it does not directly confirm any particular fact stated by the accom- plice; as, for instance, evidence of the possession of stolen goods, by one indicted for stealing or receiving them." In Hoss v. State, 74 Ala. 532, the corroboration was not of any particular fact tes- tified to by the accomplice. The corroboration relied on was, first, the flight of the defendant, and, second, proximity and opportunity for committing the crime, it having been committed at an unreasonable hour. The trial court left it to the jury to decide whether these two facts sufficiently corroborated the testi- mony of the accomplice as to authorize the jury to convict upon it. § 325. Cross-examination of an Accomplice. — A trial court should permit the defense in the cross-examination of an accom- plice to go into every species of questioning that can affect or impair his credit as a witness. The extent of cross-examination under such circumstances and for such a purpose, is largely within the discretion of the trial court; and unless the evidence shows that discretion to have been grossly abused, the appellate court will not reverse. Marler v. State, 07 Ala. 55. It is another rule well recognized in cases where an accomplice gives evidence for the commonwealth, that the defendant may show a promise on the part of the district attorney to quash an indictment as to him. United States v. Hinz, 35 Fed. Rep. 272. The act of an accomplice in testifying for the state, so as to criminate himself with others, is voluntary. He could not be compelled to do so. He testifies for the state, under a promise of favor, express or implied, on condition that he will make a full statement and confession in regard to the matter. His testimony conies in such a questionable shape, that it should, in the interest of truth and justice, be subjected to the severest scrutiny and acted on with the greatest caution. There is no case in which cross-examination is more desirable or important to test the credit of a witness, than that in which one man is sec king to save his own life or liberty, by swearing away the life or liberty of others. But when one jointly indicted with others, turns state's evi- dence, and attempts to convict others by testimony which also convicts himself, the rule must be different, and he has no right to claim any privilege concerning any of the facts pertinent to the issue, nor any exemption from the broadest latitude of cross-: 513 LAW OF EVIDENCE IN CRIMINAL CASES. examination. He thereby waives all privileges against criminat- ing himself and against disclosing communications between him- self and his counsel touching the offense charged. Both client and counsel may, in such case, be compelled to disclose such com- munications. Alderman v. People, 4 Mich. 414; Foster v. Peo- ple, IS Mich. 266; Hamilton v. People, 29 Mich. 173. The reason for maintaining such privileges ceases, when one has voluntarily exposed himself by his own testimony, to the very consequences from which it was intended by the privilege to pro- tect him. To preserve such privilege in such case would be worse than vain, for while it could not help the witnesses, it might, by withholding the only means of contradicting and im- peaching him, operate with the greatest injustice towards the party on trial. Jones v. State, 65 Miss. 179. § 326. Rights of an Accomplice Wiving Evidence for the State. — In an application to nolle pros, an indictment against an accomplice who has given evidence for the commonwealth which has led to the conviction of other offenders, it is always competent in order to secure the desired immunity. From a very early period this principle has been recognized in English criminal law and the American courts have followed the precedent with rigid uniformity. Perhaps an exception was made in the case of People v. Faulkner (not reported) where the district attorney, owing to the pressure of public sentiment, refused to nolle p>ros. the indictment and the accomplice was consequently imprisoned. The facts disclosed were of substantially the following import. On September 20, 1890, Lester B. Faulkner and his brother James were indicted, tried, and convicted on the charge of wit eking the First National Bank of Dansville, X. Y.,and were sentenced to five years' imprisonment in the Erie county peni- tentiary. The case was appealed and while the appeal was pend- ing Lester Faulkner died. So far as James Faulkner was concerned the appeal amounted to nothing and he entered the penitentiary on January 26, 1891. On the trial James Faulkner was a witness against his brother, jointly indicted with him, and it was believed at the time that the conviction of Lester would have been possible without his evidence. It was expected that the prosecuting officers would make a plea for clemency in the case of James because of his testimony; but the people of Dans- ville demanded the punishment of both brothers and no plea was EVIDENCE AFFORDED BY ACCOMPLICES. 519 made to the mercy of the court. Satisfactory evidence of these facts having been brought to the attention of the Attorney Gen- eral of the United States, and through him to President Harrison the latter issued an unconditional pardon to the accomplice "be- cause I am advised that the United States having used the prisoner against one jointly indicted (his brother) an equitable right to clemency under the decision of the Supreme Court is established. This right, if it can be called such, could not be enforced, but as it has become a settled rule in criminal procedure, I very reluctantly act upon it." The action of the president is under date of August 2, 1892, and illustrates the tenacity with which our criminal courts adhere to the early precedent. The custom of allowing one criminal to turn state's evidence against another is abominable, and the promise of immunity, express or implied, seems a very vicious sort of bribery, but public officials often resort to this scheme and claim that it serves the ends ■of justice. The claim for pardon in Faulkner's behalf, therefore, while discreditable to him seems to be good against the govern- ment which has used him. "We can find no warrant for this doctrine of exemption either in the legal principles belonging to the subject or in the ad indi- cations — it seems wholly dependent for its effectiveness upon " a doubtful expediency." Accomplices, although admitted as witnesses for the prosecu- tion, are not of right entitled to a pardon, but have only an equit- able right to a recommendation to the executive clemency. United States v. Ford (" Whiskey Cases") 99 U. S. 594, 25 L. ed. 399, and it further appears that the district attorney had no au- thority to make an agreement that if a person charged with an offense would testify against his accomplices, he should be exempt from prosecution. United States v. Ford. ({'Whiskey Cases") supra. § 327. Rule as to Co-defendants who have Pleaded Guilty. — An interesting question frequently arises in a criminal prosecu- tion, when it appears that a co-defendant or accomplice has pleaded guilty, but lias not been sentenced, and the prosecution wish to call him as a witness. It has been held that a co-defendant, who has not been tried, cannot be called as a witness for one put on trial separately. Com. v. liars//, 10 Pick. 57. So it has been held, in New York, 520 LAW OF EVIDENCE IN CRIMINAL CASES. that a party in the same indictment cannot be a witness for his co-defendant, upon his trial, until he has been acquitted or con- victed. People v. Bill, 10 Johns. 95. But the reason does not apply to one who, by conviction of his own confession, has ceased to be a party to the issue to be tried. Rex v. Fletcher, 1 Strange, 633. And in a late case, where a co-defendant had pleaded guilty to a charge of house breaking, and was called as a witness, before sentence, he was admitted. Reg. v. George, Car. & M. 111. See also 1 Phil. & Am. Ev. 29, 70. A recent decision, says : " After a party has been adjudged guilty or not guilty by a verdict, or has voluntarily admitted his guilt by plea, he has no longer any interest in the proceedings in court to determine the guilt or innocence of the others named in the indictment. He has ceased to be a party to the issue to be tried." State v. Jones, 51 Me. 125. But see Henderson v. State, 70 Ala. 23, 45 Am. Rep. 72. The American courts are not agreed with regard to the ques- tion. The leading case in favor of the exclusion of a co-defend- ant iu an indictment as a witness for one of his fellows, who has a separate trial, is that of People v. Bill, 10 Johns. 95. It is there said that "it appears to be a technical rule of evidence, and one well settled, that a party in the same suit or indictment can- not be a witness for his co-defendant until he has been first acquitted, or, at least, convicted." And the court further declares that whether the defendant be tried jointly or separately does not vary the rule. This doctrine, so far as it relates to defendants jointly tried, is, of course, indisputable, but its extension beyond that point I do not think is sustained by any decision which we are bound to receive as a common law guide. Lord Ellenborough, in Rex v. Lafone, 5 Esp. 155, rejected a co-defendant as a wit- ness on a joint indictment for a misdemeanor, although he had let judgment go by default. But this ruling is now universally ad- mitted to be erroneous. In truth, I think it may be said to be incontestable that the English decisions do not warrant the asser- tion contained in the case of People v. Bill, supra. The case of People v. Donnelly, 2 Park. Crim. Rep. 182, 1 Abb. Pr. 459, is occasionally cited as an authority sustaining the proposition that a party to the same indictment cannot be exam- ined as a witness and give evidence against a co-defendant to the same indictment. This case was expressly overruled in Wixson EVIDENCE AFFORDED BY ACCOMPLICES. 521 v. People, 5 Park. Crim. Rep. 119, by the general term of the seventh district, and in the latter case it was shown in a careful opinion by the late Mr. Justice Knox, that it was only in cases where the defendants to the indictment were tried together, that one is an incompetent witness in behalf of the other. Such was the case of Rex v. Rowland, 1 Ryan & M, 401. In the cases of People v. Bill, M Johns. 95; People v. Williams, lit Wend. 377 and Mclntyn v. People, 9 N. Y. 38, and in those cases in other states which have been decided on the authority of People v. Bill, supra, such as Com. v. Marsh, 10 Pick. 57, and Campbell v. Com. 2 Va. ('as. .",14, the witness was offered to be examined in behalf of a co-defendant. Taylor v. People, 12 Hun, 212. It is said in Lindsay v. People, 63 X. Y. 143, that "accom- plices may, in all cases, by permission of the court, be used by the government as witnesses in bringing their confederates and asso- ciates to punishment. . . . There is no practice in Xew York requiring a previous application or a formal order of the court to permit an accomplice to become a witness for the state/' Accomplices when under a joint indictment are not competent witnesses for each other. But where •<>■ nollt prosequi has been entered against one the disqualification is removed. The reason for excluding him as a witness against his fellow does not apply after his conviction on his own confession as he has then ceased to be a party to the issue. Com. v. Smith, 12 Met. 23S. "After a party has been adjudged guilty or not guilty by a verdict, or has voluntarily admitted his guilt by plea, he has no longer any inter- est in the proceedings in court to determine the guilt or innocence of the others named in the indictment.' He has ceased to be a party to the i>sue to be tried.'" State v. Jones, 51 Me. 125. If an accomplice being fully aware of his privileges .-till volun- teers as a witness in the case and so gives criminating testimony, he cannot subsequently refuse to answer. "He cannot be allowed to state such facts only as he pleases to state, and so withhold other fact-." ( 'om. v. Price, 10 Gray, 472, 71 Am. Dec. 668. This entire question relating to the evidence of an accomplice is, in many jurisdictions, regulated by statute. Thus in Massa- chusetts "the accomplice having offered himself as a witness, his testimony was competent for and against the other defendants, as well as himself." Mass. Stat. L 870, chap. 393, §1, cl. 3. See also Com. v. Nichols, 114 Mass. 285, 1'.) Am. Rep. 340; Com. v. •522 LAW OF EVIDENCE IN CRIMINAL CASES. Mobinson, 1 Gray, 555. The court might permit the common- wealth to introduce any competent evidence at any stage of the trial, even after it had once rested its case. Com. v. Blair, 126 Mass. 40. § 328. Credibility of Accomplice is for the Jury. — The credibility of an accomplice, in respect to all his testimony, is for the jury. They may require corroboration in respect to that part of it in which he states his own connection with the crime. Man- ifestly if the defense had questioned that, the evidence objected to would have been admissible for that purpose. But the credi- bility of such a witness is for the jury as to all that he says. Plence any fact or circumstance which tends to corroborate in a slight degree any part of his testimony is admissible. It was so held in State v. Wolcott, 21 Conn. 272. In that case the accom- plice detailed two conversations which he had with the prisoners, or one of them, in which they related to him conversations which they had had with third parties. The third parties were admitted t« ' testify that they in fact had such conversations, although there was nothing in either conversation in itself which tended to crim- inate the prisoners. The court by Church, Ch. J., say they "showed a privity and connection and a conspiracy between Dick- erman and the prisoners," and that Dickerman "was their confi- dant, to whom theyjmparted their plans and their motives, as lie had testified." State v. Maney, 51 Conn. 178. § 329. Evidence of Detectives, Decoys and Spies. — A man who will deliberately ingratiate himself into the confidence of another, for the purpose of betraying that confidence, and, while with words of friendship from his lips, he is seeking by every means in his power to obtain an admission which can be tortured into a confession of guilt, which he may blazon to the world as a means to accomplish the downfall of one for whom he professes great friendship, cannot be possessed of a very high sense of honor, or of moral obligation. Hence the law looks with suspi- cion on the testimony of such witnesses, and the jury should be specially instructed that in weighing their testimony, greater care is to be exercised than in the case of witnesses wholly disinter- ested. Preuit v. People, 5 JS T eb. 377. The weight to be given to such evidence is a question for the jury, and cannot be urged against its admissibility. The confession, however, seems to have been voluntary, although made to one who deliberately and re- EVIDENCE AFFORDED BY ACCOMPLICES. 523 peatedly deceived and made false statements to the plaintiff to obtain it. It is doubtful if anything is really gained in the ad- ministration of the law from the admission of such testimony, and the consequent encouragement of the courts of the practice. If it is answered that confessions are thus obtained which otherwise could not be had, it may be said, in reply, that the same is true of the rack and wheel, by means of which confessions were form- erly forced from its victims, but which experience showed were entirely unreliable. So far as appears, the plaintiff confided in this man as a friend, and was betrayed by this professed benefac- tor. The testimony of such a man may be entitled to very little credence, yet it must be submitted to the jury. Held v . State, 20 Neb. 492, 57 Am. Rep. 835, 9 Crim. L. Mag. 248. In April, 1885, at the Southern Hotel in the city of St. Louis, Charles Arthur Preller was murdered under circumstances of exceptional atrocity. The body was dissected, packed in a trunk, and left in the room occupied by the deceased. The murderer was apprehended in New Zealand and subsequently brought to trial. With the connivance with the state's attorney, a detective under the alias of Dingfelder secured an indictment against him- self from the grand jury and procured his incarceration in the same cell with Brooks, for a period of forty-seven days, the alleged murderer of Preller. While so confined, by infamous deception, he secured from Brooks what purported to be a con- fession; and at the subsequent trial under objection from the defense he was allowed to give evidence of this confession. Chief Justice Norton on review of the case in the appellate court makes use of the following language in regard to this testimony: "While the officers whose duty it was to prosecute criminal offenses, may, in their anxiety to ferret out the circumstances con- cerning the death of Preller, have overstepped the bounds of pro- priety in the course pursued by them, which is not to be com- mended, but condemned, it affords no legal reason for rejecting the evidence and not letting it go to the jury, whose peculiar prov- ince it was to pass upon the credibility of the witness who detailed the confession and give to it such weight as, under the circum- stances, they believed it entitled to. It was for the court to say what evidence should be received and for the jury to say what weight it should have when received. "In Missouri the following authorities establish the proposition 524 LAW OF EVIDENCE IN CRIMINAL CASES. that an extra-judicial confession, uncorroborated and without proof aliunde that the crime lias been committed, will not justify a conviction. Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. Gt , man, :.4 Mo. 526, 14 Am. Rep. 481; State v. Pat- terson, 73 Mo. 695 ; " State v. Brooks, 10 West. Kep. 679, 92 Mo. 542. Many authorities of high repute hold that the confessions of a, prisoner even when obtained by artiiice, cunning, falsehood, and deception are admissible in evidence, especially where the purported confession is corroborated by other circumstances in evidence. The corollary of this proposition is, that the discredit of an accom- plice does not attach to a detective who identifies himself with a criminal organization with a view to exposing it, and this even where it appears that he assisted in and apparently approved many of its councils and methods. Ileldt v. State, 20 Neb. 492, 57 Am. liep. 835; State v. Patterson, 73 Mo. 695; Campbell v. Com. 84 Pa. 1ST; State v. Hojpkirk, 84 Mo. 278; Rex v. Despard, 28 How. St. Tr. 346; State v. Phelps, 74 Mo. 128; State v. McKean, 36 Iowa, 343, 14 Am. Eep. 530; State v. Fredericks, 85 Mo. 145; People v. Bolanger, 71 Cal. 21; Wharton, Crim. Ev. 440. The act of a detective may, perhaps, be not imputable to the de- fendant, as there is a want of community of motive. The one has a criminal intent, while the other is seeking the discovery and pun- ishment of crime. State v. Jansen, 22 Kan. 498. Where the owner learns that his property is to be stolen, he may employ detectives and decoys to catch the thief. And we can do no bet- ter than to quote again from Judge Brew r er, in the case above cited, as to the relation of the acts of detectives and the thief, when a crime is alleged to have been committed by the two. He says: "Where each of the overt acts going to make up the crime charged is personally done by the defendant, and with criminal intent, his guilt is complete, no matter what motives may prompt, or what acts done by the party who is with him, and apparently assisting him. Counsel have cited and commented upon several cases in which detectives figured, and in which defendants were adjudged guiltless of the crimes charged. But this feature dis- tinguishes them, that some act essential to the crime charged was in fact done by the detective, and not by the defendant, and this act not being imputable to the defendant, the latter's guilt was not made out. The intent and act must combine; and all the ele- EVIDENCE AFFORDED BY ACCOMPLICES. 525 ments of the act must exist, and be imputable to the defendant." See State v. Hayes, 105 Mo. 70, 24 Am. St. Rep. 360. A policeman, by pretending to be an accomplice, may obtain access to a chamber where counterfeiting instruments are collected; but this does not prevent a conviction being rendered on his tes- timony. Wills, Circ. Ev. 117, 118. The guilty party may be induced by a trap to offer the counterfeit coin, but this does not make the offering the counterfeit coin any the less indictable. Bex v. Iloiden, Russ. & R. 151, 2 Taunt. 334. Now, does the fact that a detective attends unlawful meetings for the purpose of afterwards disclosing their secrets and becoming a witness against the wrong-doers make him an accomplice i Beg. v. Bernard, 1 Fost. & F. 240; Beg. v. Mullins, 3 Cox, C. C.526; Com. v. Down- ing, 4 Gray, 29; Com. v. Wood, 11 Gray, 86; Com. v. Cohen. 127 Mass. 282; Campbell v. Com. S4 Pa. 1ST; State v. McKea, 36 Iowa, 343, 14 Am. Rep. 530; People v. Farrell, 30 Cal.316; Peo- ple v. Barrio, 49 Cal. 342; Williams v. State, 55 Ga. 391; Wright v. State, 7 Tex. App. 574, 32 Am. Rep. 599. One of the most nefari< >us and infamous conspiracies ever known in this country — that of the "Molly Maguires," in 1S76, to coerce by assassination the coal proprietors of the Pennsylvania anthra- cite region — was exploded, and the chief perpetrators brought to justice by the sagacity and courage of a detective who attended the meetings of the conspirators and thus became possessed not only of their plans for the future but of their exploits in the past. The fact is, there is no crime that is committed under the influ- ences of some sort of decoy, and to acquit in all cases where the offender is incited to the crime by some instigation of this kind would leave few cases in which there could be a conviction. If the decoy is not intentional it may act by the way of negligence; and if an intentional decoy is a ground for defense so should be a negligent decoy. Rut it is now well settled that contributory negligence, unless breaking the casual relation between the offender and the offense, is no defense. Bex v. Kew, 12 Cox, C. C. 355; Bex v. Forbes, 7 Car. & P. 224; Beg. v. Parish, 8 Car. & P. 04; Beg. v. Beard. 8 Car. A: P. 143; Bates v. United States, L0 Fed. Rep. 92, note by Francis Wharton. The fact that postoffice inspectors resorted to test or decoy let- ters in order to bring to justice a person suspected of using the mails for the circulation of obscene literature, does not operate to 526 LAW OF EVIDENCE IN CRIMINAL CASES. discredit their testimony upon the trial of that person for that offense, raited States v. Slenker, 32 Fed. Kep. 691. There is a difference between detecting and decoying, between traps and invitations, between contrivances to expose and contri- vances of participation by an owner. So if the owner delivers property to the would-be thief, this is no larceny. In like manner the decoy must not himself commit any ingredient of the actwhich it is necessary for the criminal to commit in order to constitute the offense; as leaving the outer door open or opening it to admit the burglar. Dillon, J., observed in United States v. IV/tittier, 5 Dill. 35: ''There is a class of cases in respect of larceny and rob- bery in which it is held that where one person procures, or orig- inally induces the commission of the act by another, the person who does the act cannot be convicted of these particular crimes, although he supposed he was taking the property without the con- sent or against the will of the owner. . . . The reason is obvious, viz: the taking in such cases is not against the will of the owner, which is the very essense of the offense, and hence no offense, in the eye of the law, has been committed. The offender may be as morally guilty as if the owner had not consented, but a necessary ingredient of legal guilt is wanting." Citing Rex v. Eggington, 2 Bos. & P. 508; State v. Covington, 2 Bail. L. 569;. Dodge v. Brittain, Meigs, 84; Alexander v. State, 12 Tex. 540^ Rex v. McDanieL Fost. C. C. 121. CHAPTER XLII. DYING DECLARATIONS. § 330. Characteristics and Scope of. 331. Admissible only when Death is the Subject of the Cliarge- 332. Not Competent in Cases of Abortion. 333. Admitted on Grounds of Necessity (done. 334. An Exception to the Rule Regarding Hearsay. 335. Imminency of Death must be Apparent. 336. Infirmities of this Evidence Outlined. 337. Accused may Show Want of Belief that Death is at Hand. 338. Matters of Mere Opinion are Inadmissible. 339. Narratives of Past Occurrences are Inadmissible. 340. Impeaching Character of Declarant. 341. Illustrations of Extreme Rulings. § 330. Characteristics and Scope of.— Upon well reasoned grounds of expediency dying declarations are admissible in criminal prosecutions, where manslaughter is the gravaman of the crime alleged. This species of evidence is obviously liable to great abuse and should be received with great caution and onlv when a proper introduction entitles it to be received. The wit- ness whose testimony is cast upon the record is beyond the reach of cross-examination — all opportunity for investigating the ques- tion of malice, enmity, positive identification is lost forever, and the accused whose tenure of life is hanging in the balance, has to contend with the additional disadvantage that a just indignation aroused in the minds of the triers by the mere recital of a hideous crime. Evidence of this character is universally admitted however on the ground of necessity and in order to prevent the entire frustation of justice, to impart competency to this evidence it must clearly appear that the declarant was conscious of the imminency of death — believed himself to lie beyond the prob- abilities of recovery, and this belief must be evident by some word or act of a conclusive and unmistakable character. This conviction in the mind of the declarant that death is surely approaching is generally presumed to supply all of the impressive 51^7 528 LAW OF EVIDENCE IN CRIMINAL CASKS. effects of a duly administered oath, as it has been argued, no man in the very article of death, will deliberately go down to his grave with a lie upon his lips, and the life of a fellow being dependent upon the last gasp that he shall utter. The plausibility of this reasoning is admitted, but it is a well authenticated fact in criminal annals that countless men have calmly met the awful solemnities of death in an attitude of utter moral indifference; through the combined medium of resentment and mendacity they are induced to distort and falsify their statements until even in cases where firm belief in the doctrine of future retribution has been clearly shown the most flagrant and atrocious falsehoods have been de- liberately uttered. In determining, therefore, the degree of weight that should characterize this species of evidence consider- ation is due, first to the mental and physical equipment of the declarant at the time of making the statement; second to the character and capacity of the communicating medium, and here we pause to interpolate a cautionary suggestion as to the reliability of the reporters of the dying declaration. Obviously they are beyond the fear of contradiction and to divert suspicion, either from themselves or others of their kindred they are frequently impelled to a gross perversion of the truth. Notwithstanding the admitted infirmities we have outlined, the necessities of the case must and do prevail, and in all jurisdictions dying declarations are admissible in evidence. Primarily the question of admission is one of law for the court — the presiding judge must decide whether upon all the facts elicited the prose- cution has properly paved the way to its reception, but on this being fairly shown it is rarely (although sometimes) reversible error to allow the declaration in evidence. At one time the un- tenable position was maintained, that unless the declarant was shown to have accepted the doctrine of future punishment his declaration should be excluded. But this view no longer domi- nates and our courts of last resort have quite generally receded from the position. The authorities upon this subject are simply overwhelming, and in the following citations the aim has been to include only those that the best reflect the present law. Boyle v. State, J 05 Ind. 469, 55 Am. Rep. 21S ; Brotherton v. People, 75 N. V. 159; Brown v. Com. 73 Pa. 321, 13 Am. Rep. 740; Oliver v. State, 17 Ala. 587; Campbell v. State, 11 Ga. 353; Statt v. Nash, 7 Iowa, 347; People v. Johnson, DYING DECLARATIONS. 529 1 Park. Crira. Kep. 291; People v. Zee, 17 Cal. 76; Hill v. State, 41 Ga. 484; Scott v. People, 63 111. 508; Watson v. State, 6S Ind. 54S; Campbell v. State, 38 Ark. 498; Hurd v. Peopfe, 25 Mich. 405; People v. Knapp, 26 Mich. 112; Thompson v. £tafe, 11 Tex. App. 51; People v. Ybarra, 17 Cal. 166; Cleveland v. Newson, 45 Mich. 62; Donnelly v. £fote, 26 N. J. L. 463; Kehoe ■v. Com. 85 Pa. 127; State v. Oliver, 2 Houst. 585; Jfffy v. 6'tate, .55 Ala. 39; State v. Scott, 12 La. Ann. 274. § 331. Admissible only when Death is the Subject of the Charge. — The rule is, that such evidence is admissible only "when the death of the deceased is the subject of the charge, and the •circumstances of the death the subject of the dying declarations." Rex v. Mead, 2 Barn. & C. 605, and note,' State v. Cameron, 2 Pinney, 495; Miller v. State, 25 Wis. 388; Beg. v. Rind, 8 Cox, C. C. 300. In the last case cited, it is said that " the reception of this kind of evidence is clearly an anomalous exception in the law of England, which ought not to be extended.' 1 See also The Sus- sex Peerage, 11 Clark & F. 108, 112. This kind of evidence is not regarded with favor. The remarks ■of Redtield, J., in State v. Howard, 32 Vt. 380, are mere dicta. Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for the wrong to another, as well as the fact the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination; all these considerations conspire to render such declarations a dangerous kind of evidence. The rule of evidence is of common law origin, and applied and still applies only to cases of felonious homicide at common law. State v. Dickinson, 41 Wis. 299. We fail to perceive any substantial reason for limiting the application of this rule to cases of homi- cide at common law. On prosecution of indictments for procur- ing an abortion, dying; declarations should be admitted. A dving declaration is not admissible except where the death of the deceased is the subject of a charge of homicide, on trial, and the circumstances of the death are the subject of the declara- tion. Abbott, Trial Brief, ^ 56 -±, citing People \. Davis, 56 X. Y. 96; State v. Harper, '■'<:> Ohio St. 78, 35 Am. Rep. 596; Rail- ing v. Com. 110 Pa. 1"". 32 Alb. L. d. 409, overruling Com. v. Bruce, 16 Phila. 510; contra, Montgomery v. State, 80 34 530 LAW OF EVIDENCE IN CRIMINAL CASES. Ind. 338. And, contrary to the early views regarding the sub- ject, it is generally considered that the recitals of the Federal Constitution which provide that the accused shall be confronted by the witnesses against him, are not infringed by the rules of evidence which admit the declarations of a person in extremis. Miller v. State, 25 Wis. 384; Bobbins v. State, 8 Ohio St. 131. The rules of admission are fully satisfied if it can be shown that the declarant is conscious of the fact that he was in a dying con- dition; and the length of time that may elapse between the declaration and actual dissolution is of no consequence as regards the admissibility of the statement made. Com. v. Cooper, 5 Allen, 495; Jones v. State, 71 Ind. C>6; Swisher v. Com. 26 Graft. 963. Another well recognized rule requires that the " dying declara- tions should point distinctly to the cause of death, and to the circumstances producing and attending it, and this rule is one that should not be relaxed. Declarations at the best are uncer- tain evidence, liable to be misunderstood, imperfectly remembered, and incorrectly stated. As to dying declarations there can be no- cross-examination. The condition of the declarant in his ex- tremity is often unfavorable to clear recollection, and to the giv- ing of a full and complete account of all the particulars which it might be important to know. Hence all vague and indefinite expressions, all language that does not distinctly point to the cause of death and its attending circumstances, but requires to be aided by inference or supposition in order to establish facts tending to criminate the respondent, should be held inadmissible." State v. Center, 35 Vt. 378; State v. Baldwin, 79 Iowa, 714. The English rule, as formulated by Sir James Stephen (Dig. art. 26) is couched in the following language : "A declaration made by the declarant as to the cause of his death, or as t'o any of the circumstances of the transaction which resulted in his death, is deemed to be relevant only in trials for the murder or manslaughter of the declarant; and only when the declarant is shown, to the satisfaction of the judge, to have been in actual danger of death, and to have given up all hope of recovery at the time when his declaration was made. Such a declaration is not irrelevant merely because it was intended to be made as a depo- sition before a magistrate, but is irregular." § 332. Not Competent in Cases of Abortion. — As previ- ously noted, dying declarations are only admissible when the cir- DYING DECLAKATIOXS. 531 cumstances of the death are the subject of the declaration and the death the subject of the charge; they are not admissible in a trial for abortion, even though death has ensued. Railing v. Com. 110 Pa. 100. It is equally unquestioned that there is no grade of homicide involved in the crime commonly known as abortion. The death of the woman, when it occurs, is a necessary ingredient of the offense, and the death is in part, at least, the subject of the charge. In one sense this is true. But the question is, is it so in the real sense of the rule which controls the subject \ The above paragraph should be read in connection with the case of Montgomery v. State, 80 Ind. 338, and State v. Dickin- son, 41 "Wis. 299. In both those cases death resulted from an attempt to produce an abortion. It was held that the death was the subject of inquiry, and hence that it was a case for the admis- sion of dying declarations. The dying declaration was that "the operation was performed for the purpose of producing- an abor- tion." It was held that this declaration should have been excluded. It was said : "What the purpose of an act was is an inference from facts, and witnesses must state the facts, and not their con- clusions. A witness would have been required to state what was said and done. Facts are to be stated by witnesses; inferences to be made by the jury. This rule should be applied with jealous care to dying declarations. As the accused cannot cross-examine there are no means of toting the correctness of the conclusion. It may be entirely without any foundation in fact. But we need not discuss this question, for it is well settled that dying declara- tions must speak to facts only, and not to mere matters of opin- ion." Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218. The weight of authority seems to be quite decidedly against the admissibility of this grade of evidence in cases of abortion. Thus in Rex v. Hutchinson, 2 15am. & C. 608, note A., the pris- oner was indicted fur administering savin to a woman pregnant but not quick with child, with intent to procure abortion. The woman was dead, and for the prosecution, evidence of her dying declaration upon the subject was tendered. The court rejected the evidence, observing that although the declaration might relate to the cause of the death, still such declaration.- were admissible in those cases alone where the death of the party was the subject of the inquiry. In Reg. v. Hind, 8 Cox, C. C. 300, the defendant 532 LAW OF EVIDENCE IN CRIMINAL CASES. was indicted for using instruments upon a woman with intent to produce an abortion, in consequence of which she died. It was held that her dying declarations in relation to the offense were inadmissible. The same course was followed in the state of New York in the case of People v. Davis, 56 N". Y. 95. It was held that the dying declaration of the woman were incompetent on the general ground that the death was not the subject of the charge. In the case of State v. Harper, 35 Ohio St. 78, 35 Am. Hep. 596, the same doctrine was held. The Chief Justice said : " This was an indictment for unlawfully using an instrument with the intent of producing an abortion, and not an indictment for homi- cide. State v. Barker, 28 Ohio St. 583; People v. Davis, 56 N. Y. 96. The death was not the subject of the charge, and was alleged only as a consequence of the illegal act charged, which latter was the only subject of investigation. Did the court err in rejecting the dying declaration in proof of the charge ? We think not. The general rule is that dying declarations are admis- sible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. Bex v. Mead, 2 Barn. & C. 605; Bex v. Lloyd, 1 Car. & P. 233, 1 Greenl. Ev. 156." All the text-books and a host of judicial decisions assert that the rule of admissibility is confined to cases of homicide. The case in Indiana appears to be the only one in a court of last resort in which the declarations have been held admissible. Bailing v. Com. 110 Pa, 100. § 333. Admitted on Grounds of Necessity alone. — Dying dec- larations constitute the only exception to the rule, that in all cases the accused shall have the opportunity to meet, face to face, and to cross-examine, adverse witnesses. Such declarations are ad- mitted upon the single ground of necessity. The necessity rests primarily and principally upon the presumption, that in a major- ity of cases, there will be no equally satisfactory proof of the same fact. This presumption, and the probability of the crime going unpunished, are the chief grounds of this exception in the law of evidence. It has been well said by a learned judge, that the great reasons why dying declarations should not be received gen- erally, as evidence, in all cases where the facts involved may thereafter come in question, seems to be, that it wants one of the most important and indispensable elements of testimony, that of DYING DECLARATIONS. 533 an opportunity for cross-examination by the party against whom it is offered. 1 Greenl. Ev. § 156, note A. See also JSTelms v. State, 13 Smedes. & M. 500, 53 Am. Dec. 94; Boyle v. State, 105 Ind. 469, 55 Am. Kep. 218. The general rule is that matters contained in a dying declara- tion are not competent unless they would be admissible if they came from the lips of a living witness. Montgomery v. State, 80 Ind. 338; Binns v. State, 46 Ind. 311. In the case of Leiber v. Com. 9 Bush, 11, it was said : "The admission of dying declarations as evidence, being in derogation of the general rule which subjects the testimony of witnesses as ordinarily received to the two important 'tests of truth,' an oath and a cross-examination, it is obvious that such evidence should be admitted only upon the grounds of necessity and public policy, and should be restricted to the act of killing, and the circumstances immediately attending it and forming a part of the res gesUt\" In the case of Montgomery v. State, supra, the court quoted with approval the following from Mr. Starkie: "But so jealous is the law of any deviation from the general rule, that it confines the exception to the necessity of the case, and only renders such declarations admissible when they relate to the cause of death, and are tendered on a criminal charge respecting it." § 334. An Exception to the Rule Regarding Hearsay. — It is well settled that dying declarations can be received only on the trial of an indictment for homicide. Wilson v. Boerem, 15 Johns. 287; People v. Davis, 56 N. Y. 95. Such evidence is received as an exception to the general rule, that hearsay evidence is not admissible only upon the principle which protects human life by punishing those who commit homicide. Such crime is often committed when none but the victim and his assailant are present, and his declarations when in extremis — conscious that he is about to die — are received to prevent a failure of justice. 1 Greenl. Ev. §§ 156, 225, and cases cited. Not so in a civil case. Waldele v. New York Gut. d- If. R. E. Co. 19 Hun, 69. It is vain to attempt to disguise the infirmities and imperfec- tions of the human mind, and its susceptibility to false impres- sions, under circumstances touching the heart and exciting the sympathies; and the law has wisely, in case of dying declarations, required all the guaranties of truth the nature of the case admits of. Starkey v. People, 17 111. 20. 534 LA.W OF EVIDENCE IX CRIMINAL CASES. 135. Imminency of Death must be Apparent.— In order to render the statements of a person admissible as dying declara- tion^ such persons need not in express words declare that he knows he is about t<» die, or to make use of equivalent language. ('"///. \. Matthews, 89 Kv. 287. Dying declarations are limited in their scope to the act which cans.- the .loath, and the attendant circumstances, or res gestce. It i> essential to their admissibility that, at the time when they were made, the declarant should have been in actual danger of death, that he should then have a full apprehension of his danger and that death has ensued. 1 Taylor. Kv. § 718. "It is the impression of impending death and not the rapid succession of death in point of tart, which renders the testimony admissible." 1 Taylor, Kv. § 718; Reynolds v. State, 68 Ala. 502; Hussey v. . ^7 Ala. L21; Pulliam v. State, 88 Ala. 1; Whart. Crim. Kv. .;,• 282, 28-4; 3 Brickell, Ala. Dig. p. 226, §§ 6tto, et seq.; Clark's Manual. §§ 538, et seq. They are only admitted when it is shown that the party making them was in extn mis at the time and when all hope of this world had passed; when every motive to falsehood is supposed to be silenced and the mind is induced by the most powerful considera- tion- to speak tin' truth. "A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice." Rex v. Woodcock, '1 Leach, C. C. 500; State v. Graves, IS Colo. . The doctrine was declared and confined with succinct complete- . in the carefully considered case of Reg. v. Jenkins, L. R. 1 C. C. 191. In the following quotation, the Chief Baron says : '•The question is whether this declaration, as it now stands, was admissible in evidence. The result of the decisions is that there must be an unqualified belief in the nearness of death; a belief, without hope, that the declarant is about to die. If we look at reported cases, and at the language of learned judges, we find that one has used the expression, 'Every hope of this world gone;' another, -Settled, hopeless expectation of death;' another, 'Any hope of recovery, however slight, renders the evidence of such declarations inadmissible.' We, as judges, must be perfectly sat- isfied, beyond any reasonable doubt, that there was no hope of avoiding death: and it is not unimportant to observe that the burden of proving the facts that render the declaration admissi- DYING DECLARATIONS. 535 ble is upon the prosecution." Peak v. State, 50 N. J. L. 179, 10 €rira. L. Mag. 528. § 336. Infirmities of this Evidence Outlined.— The dying man is not allowed to make his statements until those about him think that he is near the end, and he sees, or thinks he sees, the shadows of death settling about him. Under such circumstances, and at such a moment, if he is a believer in personal responsil >il- ity and a future state, the mind will be centered upon and more concerned about that near future than about the things that are receding from view. And hence statements made under such circumstances, as to how the injury was received, etc., come with that infirmity that always attends inattention. Especially will this be so if those statements embody what must have been the result of a process of reasoning, as an inference, conclusion or opinion. It often happens, too, that in such an extremity the mind is not in its full vigor. The memory may have been con. fused and the reason blunted from physical suffering or mental anxiety. In such a condition the mind yields ready assent to what may be suggested, and the person states as a fact what is in truth a conclusion or an opinion, which would clearly appear to be erroneous, were the facts stated upon which they are based. And if facts are stated, it may be that but a part are stated, the most important being omitted. It has happened that a dying declara- tion made one day is contradicted by a different statement upon a subsequent day. Moore v. State, 12 Ala. 761, 16 Am. Dec. 276. "I have said this much in order to show how important and necessary it is to exercise great caution in the admission of dying declarations in evidence against the accused, who has no oppor- tunity for a cross-examination." Boyle v. State, 105 Ind. 469, 55 Am. Kep. 218. They should not be received at all where other evidence is attainable, and when the fact of killing is virtually admitted by the line of defense adopted, it is unnecessary to prove the declarations of the deceased. Collins v. Com. 12 13ush, 271. Mr. Roscoe says: "Such consideration^ show the necessity of caution in receiving impressions from accounts given by persons in a dying state; especially when it is considered, that they (•an not be subjected to the power of cross-examination, a power quite as necessary for securing the truth as the religious obligation of an oath can be. The security, also, which courts of justice have in ordinary cases for enforcing truth, by the terror of punishment 530 LAW OF EVIDENCE IN CRIMINAL CASES. and the penalties of perjury eannot exist in this case. Roscoe, Crim. Ev. 35. In the case of Shaw v. People, 3 Hun, 272, it was said: "It is even more important to exclude an opinion, declared in articulo mortis, than in an ordinary case, where the witness may be sub- jected to a cross-examination, etc." ?; 337. Accused may Show Want of Belief that Death is at Hand. — In a criminal prosecution the accused has the right to object to the introduction of a dying declaration, on the ground that when he made it the declarant did not believe that he was about to die. In support of his objection it is competent for the accused to introduce testimony tending to show that when the declaration was made the declarant was not under the sense of an impending dissolution, but that he had hopes of recovery. State v. Molisse, 36 La. Ann. 920. § 33S. Matters of Mere Opinion are Inadmissible. — blatters of mere opinion are inadmissible. Where the declarant merely states his opinion as to the cause of an injury, and such state- ment would not be received were the declarant to be sworn as a witness, it is equally inadmissible as a declaration in articulo mortis. In such cases the familiar rule obtains the ascendency that the witness must testify to facts and not emit mere opinion. Bmns v. Stab .40 Ind. 311; Wroe v. State, 20 Ohio St. 460; Whit- ley v. State, 38 Ga. 50. The introduction of testimony of this nature must very much he confided to the discretion of the judge, who has become famil- iar with all the antecedents in the conduct of the cause. Com. v. M'PiJce, :; Cush. 184, 50 Am. Dec. 727; Donnelly v. State, 26 X. J. L. 601. One feature of this peculiar grade of evidence must be clearly outlined. The nisi prius courts upon which ordinarily involved, in the tirst instance, the trial of those cases which involve ques- tions as to the admission of dying declarations, are frequently mis- led by the conflict in adjudication and the plausibility of argument into the admission of evidence that represents a conclusion or opinion of the declarant. Decisions have been found which apparently support the contention that such evidence is admissible. Wroi v. Stati . L" ' ( )hi< , St. 460; Roberts v. State, 5 Tex. App. 141; J'"!l ■ ■ 61 Miss. 101; Rex v. Scaife, 1 Mood. & K. 551; People v. Abbott, 4 West Coast. Kep. 132; State v. Nettlebush y DYING DECLARATIONS. 53T 20 Iowa, 257; Brotherton v. People, 75 N. Y. 159; Whart. Criin. Ev. § 294. Declarations of the deceased, made when in extremis, which are not statements of fact which a living witness would have been permitted to testify to, but are merely expressions of belief and suspicions, are not competent evidence. People v. Shaw, 63 N Y. 36. In the case of Rex v. Scaife, 1 Mood. & R. 551, the declaration was : "I don't think he would have struck me if I had not pro- voked him." Coleridge, J., hesitated, but finally admitted the declaration upon the ground that it might have an influence on the amount of punishment. There was no discussion at all as to whether or not the declaration involved a conclusion. It will be observed that the declaration did not involve the one and vital question in the case, and that it was in favor of, and not against, the prisoner. The prisoner was not endangered by the want of an opportunity to cross-examine the dying witness, because the declaration was in his favor. In speaking of this declaration, the Kentucky court of appeals, in the case of Haney v. Com. (Ky.) 5 Crim. L. Mag. 17. said, that it was the expression of an opinion? but was admissible because in favor of the accused. The Ohio court cites it as being the statement of a fact. It was held in the Kentucky case above, as stated in the syllabus, that "the general rule that declarations of the deceased are admissible only when they relate to facts and not to mere matters of opinion, is subject to the exception that declarations of the mere opinion of deceased are admissible when they are favorable to the accused, and explain the conduct or motives of the deceased." In speaking of such declarations in favor of the accused, the court said, amongst other things, " The admission of such declarations can do no harm. Frauds cannot be practiced under cover of the rule. And there is not so much danger of misconception or perjury as where the declarant speaks from hostile feelings, surrounded by sympathiz- ing friends, ready to construe his words as favorable to their own views, as may reasonably be done." Much of the foregoing discussion is embodied in the dissenting opinion of Mr. Justice Zollars of the Indiana supreme court of judicature in the case of Boyle v. State, L05 Ind. 469, 55 Am. Rep. 218, decided in 1885. It is seldom, indeed, that any opinion is so critical in its analysis, so exhaustive in its citation, or so 53$ LA.W OP' EVIDENCE IN CRIMINAL CA.SES. Logical in its conclusions. Any discussion of this subject which omits a careful consideration of this case, must be regarded as grossly imperfect. The principal opinion was delivered by Mr. Justice Elliott. It is a very ingenious argument in favor of the prevailing view. But while perfectly aware that my function as a text-writer will not tolerate the least attempt to make a law, I submit the dissenting opinion of this exceedingly able court con- tains the >tatcnicnt of the better view both upon principle and authority. § 339. Narratives of Past Occurrences are Inadmissible. — The decision in People v. Fong Ah Sing (Cal.) 5 Crim. L. Mag. 64, is that it is improper to prevent narratives of previous occur- rences to be given in a dying declaration. What was there said by the court: "Dying declarations are restricted to the act of killing and to the circumstances immediately attending it, and torn ling a part of the res gestae. When they relate to former and distinct transactions, they do not come within the principle or necessity on which such declarations are received." The general rule is that matters contained in a dying declaration are not com- petent unless they would be admissible if the}- came from the lips of a living witness, was declared and approved. Montgomery v. State, 80 Ind. 338; Binns v. State, 46 Ind. 311. The name of the person who committed the homicide, as well as the name of his victim, may be proved by the dying declarations of the latter. Sylvester v. State, 71 Ala. 17; State v. Johnson, 76 Mo. 121; List< r v. Stati , L Tex. App. 739; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218. § 340. Impeaching Character of Declarant. — The eminence of the late Dr. Wharton in the entire domain of criminal law, practice and evidence has been cordially acknowledged and by none with a deeper feeling of obligation than the present writer; but at section 77-"' of his well known treatise on the Law of Homi- cide 1 find the following: " It seems that evidence is admissible, on the part of the defense, to impeach the character of the de- ceased for truth, he standing on the same footing as a witness '■ailed into court and then examined: and in one case, where the dying declarations of the deceased were admitted to show that the defendant with intent to produce on her an abortion, had administered to her oil of tansy, which was the cause of her death, the defendant was allowed to show that the deceased was con- DYING DECLARATIONS. 539 eidered a woman of loose character and light reputation. So it may be shown that the declarant was insane, or was an unbeliever, •or was in the constant habit of making mistakes as to the identity of others." Neslit v. State, 43 Ga. 23S; Donnelly v. State, 26 K J. L. 496; People v. Knapp, 1 Ed in. Sel. Cas. 177; Carter v. People, 2 Hill, 317; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. '762. If this be established law, it seems monstrous perversion of natural justice. It is not our province to quarrel with the courts; but there is something inhuman in the theory that a person who has been foully murdered, and who in the solemnities of a dying state narrates the circumstances of the assault that must result in death should have his character for truth and veracity impeached by those who from motives of malignity or self interest have some- thing to gain through the smearing of his reputation. After the grave has inexorably interposed a bar to all challenge or contra- diction — to any attempt to show previous malice, enmity or hate for a court of justice to allow irresponsible and unfriendly criticism to frustrate the demands of justice, is an attitude of hostility to- ward every instinct of right and impartiality. Such a rule of ■evidence, if tolerated and indulged, can only result in the utter miscarriage of justice, and the entire immunity of that dangerous criminal class who have graduated from elementary crime, and through all the gradations of bestial criminality have finally reached the climacteric infamy of murder. £ 311. Illustrations of Extreme Rulings. — Upon this topic we find an instructive reading from the opinion of Chief Justice Shaw, in Com. v. Casey, 11 Gush. 417, 59 Am. Dec. 150. The prosecution was for murder. The evidence was introduced for the purpose of fastening the crime upon a certain person. The victim was unable to articulate; but was asked to squeeze the hand of her interrogator if it was the defendant who made the murderous assault. The victim thereupon took her hand from under the bed-clothes, seized the hand of her questioner, and squeezed it for about half a minute. At two other times she was questioned in the same way and responded in like manner. This evidence was admitted against the objection of the defendant. Commenting upon the admissibility, his honor says: "We appreciate the importance of the question offered for our decision. Where a person has been injured in such a way that 540 LAW OF EVIDENCE IN CRIMINAL CASES. his testimony cannot be had in the customary way, the usual and ordinary rules of evidence; must from the necessity of the case be departed from. The point first to be established is, that the per- son whose dying declarations are sought to be admitted was con- scious that he was near his end at the time of making them; for this is supposed to create a solemnity equivalent to an oath. If this fact be satisfactorily established, and if the declarations are made freely and voluntarily, and without coercion they may be admitted as competent evidence. A New York court of oyer and terminer has held with doubt- ful propriety that dying declarations should not be ignored in any case, but on the contrary should be admitted even where there is- a bare possibility of the declarant's recovery. People v. Ander- sori, 2 Wheel. Crim. Cas. 398. Mr. "Wharton says such a relaxa- tion of the rule is perilous; and though we have no right to rule- out such evidence because we conjecture that the deceased may have at certain moments nourished a transient hope, yet, so far as the construction of the deceased's own utterances are concerned, it is best to take the rule without qualification, and to hold that the expression of a hope excludes. Jackson, v. Com. 19 Gratt. 656; State v. Moody, 3 N. C. 31, 2 Am. Dec. GIG; Whart. Horn. § 754. The same distinguished author in a subsequent section employs the following language : "If it be shown that the declarations were uttered by the dying man, to be connected with and qualified by other statements and with them to form an entire complete narrative, and before the purposed disclosure was fully made, they had been interrupted and the narrative left unfinished; such partial declarations, it is said, would not be competent evidence. But if it appear that the deceased stated all that he desired to say. the fact that the narrative of what occurred is not complete does not render the declaration incompetent." Vass v. Com. 3 Leigh, 786, 24 Am. Dec. 695; State v. JSfetUebush, 20 Iowa, 257; State v. Patter-sun. 45 Vt. 308, 12 Am. Rep. 200; Whart. Horn. § 770. One of the most important criminal causes ever tried in the state of New Jersey is that of Donnelly v. State, 26 N. J. L. 4G3. The opinion concurred in by the full bench was written by the distinguished ( 'hief Justice Green: and affords a singularly logical presentation of this entire subject of dying declarations. The commonwealth was represented by the attorney general assisted DYING DECLARATIONS. 541 by Joel Parker; and among the counsel for the prisoner were Messrs. Bradley, Pennington and Scott. The case was decided in 1857 and has received the repeated indorsement of the Ameri- can judiciary as embodying sound principles of law relating to the admissibility of evidence. The main object of the following extended extract from the opinion in that case, is to show the extreme anxiety of our courts in the effort to detect and punish a hideous crime to admit every species of evidence that sustains any legitimate affinities to the allegations of the indictment. In the case referred to, the court doubtless went to the extreme limit of prudence in inferring the consciousness on the part of the declar- ant of impending death, in order to admit the statements made in evidence against the accused. We have already adverted to the very liberal position of New York oyer and terminer, and the Donnelly case is even more advanced as evincing the deliberate purpose of the court to admit any grade of evidence that can assist in even a slight degree in establishing the motive, manner and perpetrator of a crime. The opinion of the Donnelly case referred to proceeds as follows : "It is suggested, that whether the person making the declara- tion was or was not under a sense of impending death, was a mere question of fact, to be decided by the judge; and that, being a mere question of fact, it is not the subject-matter of a writ of error, and cannot be drawn in question in this court. The answer to the objection is, that the decision involves a mingled question of law and of fact. What constitutes a dying declaration is a question of law. Whether, therefore, the circumstances shown upon the trial evince that the statement offered is what the law denominates a dying deelaration, is a question of law, and the proper subject of review upon a writ of error. In dealing with this question, the court here will give to each fact sworn to its appropriate effect, without questioning the credibility of the tes. timony or the truth of the facts put in evidence. Upon the mere credibility of the testimony, upon this preliminary issue, the de- cision of the court below must be regarded as final. "Evidence had been offered tending to show that the deceased died from a wound inflicted with a sharp instrument on the left side of the neck or throat, six inches in depth, perforating the oesophagus, severing the jugular vein and a branch of the carotid artery, and inflicting other internal injury; that the wound in its 542 LAW OF EVIDENCE IN CRIMINAL CASES. nature was very dangerous, and the possibility of recovery from it very doubtful; that in point of fact the deceased died from the effect of the wound soon after its infliction; that after receiving the injury, he had raised the cry of murder, and had followed the murderer through an adjoining room into the hall, bleeding very profusely; that a few steps from the door of the room, he had fallen, and had there lost a large quantity of blood; that he thence entered the room adjoining his own and had laid himself upon the bed, from which he never rose; that Mr. Smith, the first per- son who entered the room, found him bleeding very profusely. The wounded man threw up his hands, called the witness by name, and repeated that he had been stabbed; that he had been murdered; that his throat had been cut. The witness then stated ' I asked him who by; he said, Donnelly, your book-keeper.' This is one of the declarations objected to. Upon this evidence alone, excluding all the testimony regarding the condition of the deceased from this moment till the time of his death, was not the court below justified in admitting this statement in evidence as a dying declaration? The facts before the court were, that the deceased had received a most dangerous wound, from which recovery was very improbable, and from which in fact the injured man died within an hour. That the statement was voluntarily made, immediately after the injury, to the first person that he spoke to while lying upon his bed weakened by loss of blood; that in fact he was at the moment bleeding to death. Was not that statement made under a sense of impending death ? Is there any evidence to warrant the belief, that at that time or at any time afterwards, he had the least expectation or hope of recovery. It is not necessary that ilu party injured should ■state, at the time of making tht declarations, that they were made under a sense of iding death. It is enough, if it satisfactorily appears in any mode, that they were made under that sanction. It may be directly proved by the express language of the declarant, but it may also be inferred from his evident danger, or the opinion of his attendants stated to him, or from his conduct, or other circum- stances of the case, all of which are resorted to in order to ascer- tain the state of the declarant's mind at the time of making the declarations. 1 Greenl. Ev. § 15S; 1 East, P. C. 358; Rex v. Woodcock, 1 Leach, C. C. 500; Hill v. Cum. 2 Graft. 594; State v. Freeman,\ Speer, L. 57. DYING DKCLAKATIONS. 543 "Declarations made by the injured party immediately after re- ceiving the injury have in some cases been received as competent evidence, though not as dying declarations. Rex v. Foster, 6 Car. & P. 325; Com. v. IP Pike, 3 Cush. 181, 50 Am. Dec. 727. In the latter case it was held that the declaration of a person who is wounded and bleeding, that the defendant had stabbed her. made immediately after the occurrence, though with such an in- terval of time as to allow her to go from her own room up stairs into another room, is admissible in evidence after her death as a part of the res gestce" It has long been a familiar axiom of the schools — "That is cer- tain which can be rendered certain;" and whenever the evidence discloses the presence of a certain apprehension of immediate death in the mind of the declarant, although there is no express avowal of that apprehension or belief the declaration should be admitted. A surgeon of great experience and of iron nerve and fortitude is fatally wounded, — the merest inspection of his injury reveals the impending result. In the nature of the case this re- sult is as clear to the apprehension of the wounded man as to any of his attendants, and to deny his dying declaration the status of legal evidence merely because he has failed to disclose his belief in approaching death is a rank prostitution of practical methods in the prosecution of crime. The circumstances of each particu- lar case may be relied upon to furnish a just inference as to whether the victim was conscious of the imminency of death. Anthony v. State, Meigs, 265, 33 Am. Dec. 143; McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93. See Essay of Clark Bell before the Medico-Legal Society of New York, 1893. CHAPTER XLIII. CIRCUMSTANTIAL EVIDENCE. § 342. Term Defined. 343. Test of Sufficiency. 344. Theory of the ''Connected Chain" Examined. 345. Direct and t 'ircumstantial Evidence Contrasted. 34(i. What must be Proved to Warrant a Conviction by. 347. Instructions from the Court Regarding this Grade of Evidence. 348. Great Latitude Allowed in the Reception of. 349. Views of Eminent Text-writers. 350. Review of the Celebrated Webster Case — the Harris Case. 351. The Maybrick Case Considered. 352. The Stokes Case Considered. 353. Views of the Texas Supreme Court. 354. Comparative Weight of Direct and Circumstantial Evi- dence: 355. Rules of Induction Specially Applicable to Circumstan- tial Evidence. 35G. The Rule in Civil Actions Having Criminal Attributes. § 342. Term Defined. — Circumstantial evidence consists in reasoning from tacts which are known or proved, to establish such as arc conjectured to exist; but the process is fatally vicious if the circumstances from which we seek to deduce the conclusion depends upon conjecture. People v. Kennedy, 32 N. Y. 141; Jenkins v. State, 62 Wis. 63; 1 Bishop, Crim. Proc. § 1069. In all of its correlations and affinities it is essentially the legal mani- festation of the inductive process, and in its best adaptations to the requirements of cither a criminal or a civil case, induction inspires its best efforts and suggests its best conclusions. This induction of which we speak, has been defined as, "that operation of the mind, by which we infer that what we know to be true in a particular case or cases, will be true in all cases which resemble the former in certain assignable respects. In other words, induc- tion is the process by which we conclude that what is true of cer- tain individuals of a class is true of the whole class, or that what 544 CIRCUMSTANTIAL EVIDENCE. 545 is true at certain times will be true in similar circumstances at all times. This definition excludes from the meaning of the term induction, various logical operations, to which it is not usual to apply that name. Induction, as above defined, is a process of inference; it proceeds from the known to the unknown; and any operation involving no inference, any process in which what seems the conclusion is no wider than the premises from which it is drawn, does not fall within the meaning of the term." Mills, Logic, Ratiocinative & Inductive (8th ed.) 210. Evidence is defined to be circumstantial where the main fact is deduced from a series of collateral facts by a process of reason- ing. Best. Presumptions, 12, 216; 1 Greenl. Ev. § 13; 3 Bl. Com. 371; 1 Phil. Ev. 598. This grade of evidence is frequently used to prove an offense, in the absence of positive evidence of it, and it may be satisfacr tory, and even stronger than positive evidence. It is also often used when there is direct and positive evidence of the commission of a crime and the guilt of the defendant, in order to make a stronger case against him. And it is quite common to prove cer. tain ingredients of the crime by the one, and other ingredients by the other kind of evidence. Thus "in larceny, for instance, after proving that the goods were taken or stolen, proof that they were found in the possession of the prisoner shortly afterwards, and that he did not give any satisfactory account of the manner in which he came b} T them, is deemed good presumptive evidence of the prisoner having stolen them; and if to this be added evidence that the goods when found, were concealed or disguised, or the prisoner when charged with the offense, absconded, it will very much strengthen the presumption." Archb. Crim. Pr. & PI. 135. It usually consists of various independent circumstances which, connected together, may show that a crime lias been committed, and that the defendant is guilty. Each circumstance may be sus- tained by independent proof, or the testimony of different parties and the value of the evidence may largely depend upon the suffi- ciency of the proof of a single fact, constituting a link in the whole chain of evidence. Sometimes, however, each necessary link in the chain may be sustained by corroborative facts and tes- timony; and the value of the whole may depend upon the amount and value of the testimony, to independent fact,-. McCann v. State, 13 Smedes cv. M. 171. See also Mason v. State, 42 Ala, 35 54:6 LAW OF EVIDENCE IN CRIMINAL CASES. 532; Williams v. State, 41 Tex. 209; Barnes v. State, 41 Tex. 342;. Riggs v. State, 6 Coldw. 517; Clark v. People, 5 Thorap. & C. 1 1 un. 520; Woodford v. People, 5 Tliomp. & C. 589; People v. .]///< /'.s, 2 Hun, 6. Circumstantial evidence is proof of a series of other facts than the fact in issue, which Try experience have been found so associ- ated with that fact that, in the relation of cause and effect, they lead to a certain and satisfactory conclusion; as when footprints are discovered after a recent snow, it is certain some animated being passed over the snow since it fell; and from the form and number of the footprints, it can be determined with equal cer- tainty whether they are those of a man, bird or quadruped. Such evidence is founded on experience and observed facts and coinci- dences, establishing a connection between the known and proved tacts and the facts sought to be proved. Com. v. Webster, 5 Cush. 310, 312, 52 Am. Dec. 711. See also People v. Cronin, 34 Cal. 202, 203; People v. Morrow, 60 Cal. 144. Presumptive or circumstantial evidence is admissible both in civil and criminal cases, and in prosecutions for some of the worst species of crimes, is often the most satisfactory and convincing that can be produced. Walworth, Chancellor, in People v. Videto, 1 Park. Crim. Rep. 603. In the abstract, it is nearly, if not quite as strong as positive evidence; in the concrete, it may be much stronger. Com. v. Harman, 4 Pa. 271-273. § 343. Test of Sufficiency. — The criterion of sufficiency is this, does the circumstantial evidence resorted to, establish in the minds of the jury a sense of conviction, to the exclusion of all mable doubt? The convincing effect that would follow from positive testimony, is not expected to flow from circumstantial evidence. Banks v. State, 72 Ala. 522; State v. Goldsborough, 1 Houst, Crim. Rep. 302; Jackson v. State, 9 Tex. App. 114; Faulk v. State, 52 Ala. 415; State v. Norwood, 74 N. C. 247; Bea v. State, 8 Lea, 356; Dean v. Cora. 32 Gratt. 912; Walhrldge v. State, 13 Neb. 236. § 344. Theory of the "Connected Chain"' Examined. — The philosophy of circumstantial evidence is this : That it con- si.-ts in proving the many independent circumstances by different witnesses; but which, if they are proved, and if they form one consistent and connected chain in a transaction, they are apt to convince the mind; while, if they are not true, error and falsehood CIRCUMSTANTIAL EVIDENCE. 547 are likely to be detected, so that no person shall be injured there- by. There are certain humane rules laid down in the law in relation to circumstantial evidence. In the first place, if there is a single circumstance proved which is one of the necessary links in the chain of the transaction that is inconsistent with the guilt of the accused, no matter how suspicious the other circumstances may be, he is entitled to an acquittal. Another rule is, that in order to find a verdict of guilty the circumstances all taken together, as you shall find them proved, shall sustain no other reasonable hypothesis than that of the guilt of the accused in order to find a verdict of guilty. In a case of circumstantial evidence, the jury have not only to determine whether the witnesses testified truthfully to the cir- cumstances, but also to draw a natural and reasonable inference from the circumstances they find to be proved. It is always an exceedingly satisfactory circumstance of corrob- oration in a criminal case, when in connection with other convin- cing proofs, an adequate motive for the crime or act can be assigned. It is a general axiom of human action, that all persons act from motive, and it is always a satisfactory circumstance if a jury can feel that it is proved to their satisfaction that the party had a motive, a strong, impelling motive, for the act which he is charged with doing. But it is not essential to a conviction that a motive should be proved. It is utterly impossible to see the op- erations of the human mind; the characters and instincts and in- tents of persons differ, so that what might be an adequate motive for another, for a certain act, and hence it is that it is not abso- lutely necessary that there shall be a motive proved in order to insure a conviction, but the absence of any probable motive is a circumstance always to be considered by a jury in favor of the accused. Pratt, J., in People v. Rubenstein, Kings County Over & Terminer (not reported). '"It is a rule that may be called a golden rule in the examination and application of this kind of evidence which we call circum- stantial, that should it so turn out that every fact and circumstance alleged and proved to exist is consistent on the one hand with the hypothesis of guilt, and on the other hand consistent, reasonably and fairly, with the hypothesis of innocence, then those circum- stances prove nothing at all. Unless they go so far as to establish a necessary conclusion of this guilt which they offered with a view 54:8 LAW OF EVIDENCE IN CRIMINAL CASES. to establish, they are utterly worthless and ineffectual for the in- vestigation of the truth. It is not enough that the circumstances relied upon are plainly and certainly proved. It is not enough to show that they are consistent with the hypothesis of guilt, They must also render the hypothesis of innocence inadmissible and impossible, unreasonable and absurd, or they have proved nothing at all." Rufus Choate in Dalton Divorce Case before the Su- preme Judicial Court of Mass. May, 1856. § 345. Direct and Circumstantial Evidence Contrasted. — Direct and circumstantial evidence so closely hinge upon each other that it is often vexatious to attempt to discriminate between them. Circumstances are always looked to, to support or contra- dict direct evidence, and direct evidence is absolutely necessary to prove the facts upon which the inference in circumstantial evi- dence is based. One sustains and supports the other. Where, then, is the line to be drawn by which one is to be used and the other withheld ? "Or how can any definite rule be laid down by which one is to be deemed more satisfactory than the other? With the facts clearly proved, beyond a doubt, in either case, if a logical process of reasoning is adopted, and a sound judgment exercised, the result must be the same in both. The danger of circumstantial evidence lies, first, in the liability of the senses to err where any facts are sought to be established, instead of one, as in direct evidence; and, second, in the danger of intended fal- sity where many witnesses are sworn to several facts instead of one to the main issue; and, third, in the danger of incorrect infer- ences and illogical conclusions from jurors not accustomed to close habits of reasoning, where the processes of inference and deduc- tion are exercised, either upon several circumstances, or even a single one, remote from the main fact sought to be established. 2 Colby, Crini. L. 175. As was said by Chief Justice Gibson in the case of Corn. v. Harman, -1 Pa. 269: "The only difference between positive and circumstantial evidence is, that the former is more immediate, and has fewer links in the chain of connection between the premises and conclusion; but there may be perjury in both. A man may as well swear falsely to an absolute knowledge of a fact as to a number of facts, by which, if true, the question of guilt or inno- cence is solved. No human testimony is superior to doubt. The machinery of criminal justice, like every other production of man CIRCUMSTANTIAL EVIDENCE. 549 is necessarily imperfect, but you are not, therefore, to stop its wheels. Innocent men have doubtless been convicted and exe- cuted on circumstantial evidence; but innocent men have some- times been convicted and executed on what is called positive proof. All evidence is more or less circumstantial, the difference being only in the degree; and it is sufficient for the purpose when it excludes disbelief, — that is, actual disbelief; for he who is to pass on the question is not at liberty to disbelieve as a juror while he believes as a man. It is enough that his conscience is clear." This quotation from the opinion of Chief Justice Gibson was ap- provingly referred to by Mr. Justice Butler in his charge to the jury in the celebrated case of Udderzook v. Com. 76 Pa. 340. § 346. What must be Proved to Warrant a Conviction by. — We say of a fact or statement, that it is proved, when we believe its truth by reason of some other fact or statement from which it is said to follow. Most of the propositions, whether affirmative or negative, universal, particular, or singular, which we believe, are not believed on their own evidence, but on the ground of something previously assented to, from which they are said to be inferred. To infer a proposition from a previous prop- osition or propositions; to give credence to it, or claim credence for it, as a conclusion from something else; is to reason, in the most extensive sense of the term. There is a narrower sense, in which the name reasoning is confined to the form of inference which is termed ratiocination, and of which the syllogism is the general type. The reasons for not conforming to this restricted use of the term were stated in an earlier stage of our inquiry, and additional motives will be suggested by the considerations on which we are now about to enter. In proceeding to take into consideration the cases in which in- ferences can legitimately be drawn, we shall first mention some cases in which the inference is apparent, not real; and which require notice chiefly that they may not be confounded with cases of inference properly so called. This occurs when the proposition ostensibly inferred from another, appears on analysis to be merely a repetition of the same, or part of the same, assertion, which was contained in the first. All the cases mentioned in books of logic as examples of equipollency or equivalence of propositions, are of this nature. Mills, Logic, Ratiocinative & Inductive (8th ed.) 122. See also DeMorgan, Formal Logic of the Calculus of In- ference Necessary and Probable. 550 LAW OF EVIDENCE IN CRIMINAL CASES. " In order to warrant a conviction of a crime on circumstantial evidence, each fact necessary to the conclusion sought to be estab- lished must be proven by competent evidence beyond a reasonable doubt.': Scott v. State, 19 Tex. App. 325; Lehman v. State, 18 Tex. App. 171, 51 Am. Rep. 298. " Every circumstance material in a case must be proven beyond a rational doubt, or it is the duty of the jury to acquit." Sumner v. State, 5 Blackf. 579. And "each essential independent fact in the chain or series of facts relied upon to establish the main fact, must be established to a moral certainty or beyond a reasonable doubt." People v. Phipps, 39 Cal. 326. " When the evidence against the defendant is made up wholly of a chain of circumstances, and there is a reasonable doubt as to one of the facts essential to establish guilt, it is the duty of the jury to acquit." People v. Anthony, 50 Cal. 397. " Every fact in a chain of facts, from which the defendant's guilt is to be inferred, must be proven by the same weight, de- gree and force of evidence as if it were the main fact of the defendant's guilt itself." Johnson v. State, 18 Tex. App. 385. " The evidentiary facts must all be proved, and the existence of none of them can be presumed." Burrill, Circ. Ev. 733. " The several circumstances upon which the conclusion depends must be fully established by proof. They are facts from which the main fact is to be inferred, and they are to be proved by competent evidence, and by the same weight and force of evi- dence as if each was itself the main fact in issue." Com. v. Webster, 5 Gush. 295, 317, 52 Am. Dec. 711. " The facts alleged as the basis of any legal inference, must be clearly proved and undubitably connected with the fact 'am pro- landumP Wills, Circ. Ev. 173. It is necessary to warn the jury against the danger of being misled by a train of circumstantial evidence. The mind is apt to take a pleasure in adapting circumstances to one another, and even straining them a iittle. if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual the more likely was it, in considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with it- previous theories and necessary to render them complete. Wills, Circ. Ev. 173. CIRCUMSTANTIAL EVIDENCE. 551 In order to justify the inference of legal guilt from circum- stantial evidence, the existence of the inculpatory facts must be absolutely inconsistent with innocence, and incapable of explana- tion upon any other reasonable hypothesis than that of his guilt; and, further, when a conviction is sought upon circumstantial evidence alone, the state must show by a preponderence of evi- dence that the alleged facts and circumstances are absolutely incompatible with any reasonable hypothesis other than the guilt of the accused. State v. JBolden, 4-2 Minn. 350. § 3-17. Instructions from the Court Regarding this Grade of Evidence. — In the case of ( 'lare v. People, 9 Colo. 123, the evidence was wholly circumstantial. The trial judge instructed the jury as follows : "That the rule requiring the jury to be satisfied of the defend- ant's guilt beyond a reasonable doubt, in order to warrant a con- viction, does not require that the jury should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant's guilt; it is sufficient if the jury are satisfied beyond a reasonable doubt that the defendant is guilty." Judge Helm, in reversing the trial court, said: "The metaphor used is inaccurate, and liable to misconstruc- tion. It is incorrect to speak of a body of circumstantial evidence as a chain, and allude to the different circumstances as the links constituting such chain; for a chain cannot be stronger than its weakest link, and if one link fails the chain is broken. This figure of speech may perhaps be correctly applied to the ultimate and essential facts necessary to a conviction in criminal cases; since if one be omitted or be not proven beyond a reasonable doubt, an acquittal must follow. . . . "The word 'circumstance' and the word 'fact' are frequently used interchangeably. . . . In cases where the conviction de- pends upon circumstantial evidence, it often happens that one or more of the ultimate or essential matters may very appropriately be called circumstances; and such matters, whether spoken of as circumstances or as facts, must be established by the state beyond a reasonable doubt. . . . We deem it quite as reasonable to suppose that the jury misunderstood and misapplied the language used as that they comprehended its appropriate meaning and appli- cation. Fortius reason the judgment must be reversed. . . . 552 LAW OF EVIDENCE IN CRIMINAL CASES. To prevent reversal for error in the charge, it must appear that the prisoner could not have been prejudiced thereby." The same instruction is considered at length in People v. Aihin, 66 Mich. 481, and its fallacy is exposed; the court concluding its argument by saying : "Each necessary link, each and every material and necessary fact upon which a conviction depends, must be proven beyond a reasonable doubt. •• The party upon whom the burden rests, is bound to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent as if the whole issue had rested upon the proof of each individual and essential circum- stance." Stark. Ev. (9th Am. ed.) § 586. We will add that the instructions delivered in Clare v. People, 9 Colo. 123, were again the subject of judicial condem- nation in the celebrated Graves case, where the conviction by the district court was reversed on appeal for error in the admis- sion and rejection of evidence, as well as for error in the judge's charge. This case has attracted great attention — -was vigorously prosecuted and ably defended and will be found reported under the title of People v. Graves, 18 Colo. . The decision was- handed down in February, 1893. § 348. Great Latitude Allowed in the Reception of. — Great latitude is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly required, not merely for the purpose of remedying the want of direct evi- dence, but of supplying an invaluable protection against imposi- tion. Stark. Ev. 81. The greatest scope may be indulged in matters of circumstantial evidence. Washington v. State, 8 Tex. App. 377. And any evidence may be resorted to which tends to develop a fact, which, if shown, would enhance the prospects of conviction or acquittal. Svm/ms v. Stat< , 1" Tex. App. 131; Preston v. State, 8 Tex. App. 30. § 349. Views of Eminent Text-writers. — Burrill says: "Sup- posing that, by a course of examination, combination and infer- ence, the jury have reached the point of forming an affirmative belief of the probability, and strong probability, of the hypothesis of guilt, their task is not yet completed. A great and final test of the accuracy of the conclusion they are thus led to form remains to be applied, in which the entire and peculiar efficacy CIRCUMSTANTIAL EVIDENCE. DOO of circumstantial evidence is said to consist; its application con- stituting the second stage in the general process of presumption. This test is the negative point of view. It is not sufficient that the circumstances proved coincide with, account for and therefore render probable the hypothesis sought to be established; but they must exclude, to a moral certainty, every other hypothesis but that single one." Burrill, Circ. Ev. 181. In another work of merit, the same line of thought is pursued, thus: "The hypothesis of delinquency should be consistent with all the facts proved. The chief danger to be avoided when deal- ing with presumptive evidence arises from aproneness natural to man, to jump to conclusions from certain facts, without duly adverting to others which are inconsistent with the hypothesis which those facts seem to indicate. ... It should never he forgotten, as observed by an able writer on the law of evidence, that all facts and circumstances which have really happened were perfectly consistent with each other, for they did actually so con- sist; an inevitable consequence of which is that, if any of the cir- cumstances established in evidence, is absolutely inconsistent with the hypothesis of the guilt of the accused, that hypothesis cannot be true." 2 Best, Ev. (Morgan's Notes) § 451. This familiar principle of evidentiary law is frequently enunci- ated in criminal reports. People v. Cunningham,, Park. Crim. Rep. 398; People v. Strong, 30 Cal. 151; Harrison v. State, 6 Tex. App. 42; State v. Moxl&y, 102 Mo. 374. "Where there is nothing but the evidence of circumstances to guide you," said Mr. Justice Bailey, "those circumstances ought to be closely and necessarily connected, and to be made as clear as if there were absolute and positive proof." Rex v. Downing, Salop Summer Assizes, 1822. Every circumstance, therefore, which is not clearly shown to be really connected as its correlative with the hypothesis it is supposed to support, must be rejected from the judicial balance; in other words, it must be distinctly established that there exists between the factum probanrfum and the facts which are adduced in proof of it, a real connection, either evident and necessary, or so highly probable as to admit of no other reasonable explanation. See Mittermaier, chap. 55, 57; Wills, Circ. Ev. chap. 6, pp. 173, 474. § 350. Review of the Celebrated Webster Case— the Har- ris Case. — Few criminal cas^s have been decided in this country 551 LAW OF EVIDENCE IN CRIMINAL CASES. that have given a wider scope to evidentiary rules or have called fur a more extended application of the many principles they embody, than that of the celebrated Webster case decided by the Massachusetts supreme judicial court in March, 1850. Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711. The high social dis- tinction enjoyed by the prisoner, his scientific attainments and his close relations with the greatest university of our land threw around the trial of that case an interest that but rarely attaches to a criminal prosecution. The distinguished chief justice who presided lias left behind him a monumental record of rare legal accomplishments coupled with great logical acuteness, rigid im- partiality and keen and unrelenting perceptions of what circum- stantial evidence should disclose in order to meet the exactions of a capital case. These considerations taken in connection with the eminence of the counsel appearing for both the common wealth and for the prisoner, must ever invest this celebrated case with intense interest and lasting value. The following quotations of the opinions of Chief Justia Shaw bear their own commentary and vindication. Much has been written since this opinion has been handed down pertaining to this subject; but the entire range of judicial discus- sion or theoretical review has failed to disclose a more apt or con- vincing statement of the rules pertaining to this particular grade of evidence than are found within the paragraphs of that singu- larly exhaustive and scholarly opinion. The most efficient and instructive application of the rules of circumstantial evidence were demanded by that celebrated case and every exaction was fully met. "The distinction between direct and circumstantial evidence is this. Direct or positive evidence is when a witness can be called to testify to the precise fact which is the subject of the issue on trial; that is, in a case of homicide, that the party accused did cause the death of the deceased. Whatever may be the kind or force of the evidence, this is the fact to be proved. But suppose no person was present on the occasion of the death, and of course that no one can be called to testify to it; is it wholly unsuscepti- ble of legal proof? Experience has shown that circumstantial evidence may be offered in such a case; that is, that a body of facts may be proved of so conclusive a character, as to warrant a firm belief of the fact, quite as strong and certain as that on which discreet men are accustomed to act, in relation to their most CIRCUMSTANTIAL EVIDENCE. 555 important concerns. It would be injurious to the best interests ■of society, if such proof could not avail in judicial proceeding's. If it was necessary always to have positive evidence, how many criminal acts committed in the community, destructive of its peace -and subversive of its order and security, would go wholly unde- tected and unpunished '. "The necessity, therefore, of resorting to circumstantial evidence if it is a safe and reliable proceeding, is obvious and absolute. Crimes are secret. Most men, conscious of criminal purposes, and about the execution of criminal acts, seek the security of secrecy and darkness. It is therefore necessary to use all other modes of evidence besides that of direct testimony, provided such proofs maybe relied on as leading to safe and satisfactory conclu- sions; and. thanks to a beneficent providence, the laws of nature and the relations of things to each other are so linked and com- bined Together, that a medium of proof is often therein* furnished, leading to inferences and conclusions as strong as those arising from direct testimony. "On this subject, I will once more ask attention to a remark in East's Pleas of the Crown, chap. 5, § 11: -Perhaps,' he says, • strong circumstantial evidence, in cases of crime like this, com- mitted for the most part in secret, is the most satisfactory of any from whence to draw the conclusion of guilt; for men may be seduced to perjury by many base motives, to which the secret nature of the offense may sometimes afford a temptation; but it can scarcely happen that many circumstances, especially if they be such over which the accuser could have no control, forming together the links of a transaction, should all unfortunately con- cur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous.' "Each of these modes of proof has its advantages and disadvan- tages; it is not easy to compare their relative value. The advan- tage of positive evidence is, that it is the direct testimony of a wit- ness to the fact to be proved, who, if he speaks the truth, saw it ■done; and the only question is, whether he is entitled to belief. The disadvantage is, that the witness may he falsi' and corrupt, and that the case may not afford the means of detecting his false- hood. "But, in a case of circumstantial evidence where no witness can testify directly to the fact to be proved, it is arrived at by a series 556 LAW OF EVIDENCE IN CRIMINAL CASES. of other facts, which by experience have been found so associated with the fact in question, that in the relation of cause and effect, they lead to a satisfactory and certain conclusion; as when foot- prints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of the footprints, it can be determined with equal certainty, whether they are those of a man, a bird, or a quadruped. Circumstantial evidence, therefore, is founded on experience and observed facts and coincidences, establishing a connection between the known and proved facts and the fact sought to be proved. The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances it less likely to be falsely prepared and arranged, and falsehood and perjury are more likely to be detected and fail of their purpose. The disadvantages are that a jury has not only to weigh the evidence of facts, but to draw just conclu- sions from them; in doing which, they may be lead by prejudice or partiality, or by want of due deliberation and sobriety of judg- ment, to make hasty and false deductions; a source of error not existing in the consideration of positive evidence. "From this view, it is manifest, that great care and caution ought to be used in drawing inferences from proved facts. It must be a fair and natural, and not a forced or artificial conclusion; as- when a house is found to have been plundered, and there are in- dieations of force and violence upon the windows and shutters, the inference is that the house was broken open, and that the persons who broke open the house plundered the property." Com. v. Webster, 59 Cush. 295, 52 Am. Dec. 711. Mr. Justice Grey of the New York court of appeals in a very recent case that has attracted wide attention says : "All evidence is, in a strict sense, more or less circumstantial, whether consisting in facts which permit the inference of guilt,. or whether given by the eye-witnesses of the occurrence; for the testimony of eye-witnesses is, of course, based upon circumstances more or less distinctly and directly observed. But, of course, there is a difference between evidence consisting in facts of a pe- culiar nature and hence giving rise to presumptions, and evidence which is direct, as consisting in the positive testimony of eye-wit- aesses; and the difference is material according to the degree of exactness and relevancy, the weight of the circumstances and the CIRCUMSTANTIAL EVIDENCE. 557 credibility of witnesses. The mind may be reluctant to conclude upon the issue of guilt in criminal cases upon evidence which is not direct, and yet, in the facts brought out, when taken together, all point in the one direction of guilt, and to the exclusion of any other hypothesis, there is no substantial reason for that reluctance. Purely circumstantial evidence may be often more satisfactory, and a safer form of evidence, for it must rest upon facts which, to prove the truth of the charge made, must collectively tend to establish the guilt of the accused. ... A fact has the sense of, and is equivalent to, a truth, or that which is real. It is in the ingenious combination of facts that they may be made to deceive, or to ex- press what is not the truth. In the evidence of eye-witnesses to prove the facts of an occurence we are not guaranteed against mistake and falsehood, or the extortion of truth by exaggeration or prejudice, but when we are dealing with a number of estab- lished facts, if, upon arranging, examining, and weighing them in our mind, we reach only the conclusion of guilt, the judgment rests upon pillars as substantial and sound as though resting upon the testimony of eye-witnesses. The necessity of a resort to cir- cumstantial evidence in criminal cases is apparent in the nature of things, for a criminal act is sought to be performed in secrecy, and an intended wrongdoer usually chooses his time, and an oc- casion when most favorable to concealment, and sedulously schemes to render detection impossible. All that we should recpaire of circumstantial evidence is that there shall be positive proof of the facts from which the inference of guilt is to be drawn, and that that inference is the only one which can reasonably be drawn from those facts." People v. Harris (X. Y.) Jan. 17, 1893. cj 351. The Mayhrick Case Considered. — The necessity of reviewing all criminal cases, especially those dependent upon cir- cumstantial evidence, and of correcting such errors as may have determined the verdict or in fact presided throughout the entire trial, has received ample vindication in a recent English ease pre- sided over by Sir James Stephen. It has since been abundantly established that the celebrated baronet was relapsing into the early stages of senility and decay, but the appalling result can be only discerned by a reference to the facts elicited on the trial. Florence Maybrick is an American woman who was tried in Liverpool, England, in August, L889, for the murder of her hus- band. August 27th she was found guilty and sentenced to bo 558 [.AW OF EVIDENCE IN CRIMINAL CASES. hanged. The trial caused great public excitement. When the verdict was announced there were violent manifestations of dis- approval in the court room, and a storm of protest throughout all England followed. The charge against Mrs. Maybrick was that she had killed her husband by giving him arsenic, but the evi- dence was weak, flimsy and contradictory, while the charge of the presiding judge to the jury was grossly unfair. Because of his behavior on this occasion and at subsequent trials, Justice Ste- phen has been pronounced insane and imbecile, and he has since resigned from the bench. There was a deep conviction in the popular mind that gross injustice had been done, and floods of petitions, demands and protests poured into the home office. The secretary felt compelled by the agitation to take the case under advisement, and after fourteen days of close investigation came to the conclusion that "there was a reasonable doubt whether in fact James Maybrick's death was caused by poison." Mrs. Maybrick's sentence was thereupon commuted to penal servitude for life, and for over three years she has been confined in Woking prison. Thus there is presented the singular spectacle of a woman un- dergoing punishment for a crime of which, in the opinion of the home secretary, there is a reasonable doubt of her guilt. The outrageous deportment of Mr. Justice Stephen during the trial of this case, is thus commented upon by Mr. Edward Stead: " lie laid himself out to excite prejudice against this 'horrible woman.* but even when he had finished his twelve hour harangue tor the prosecution from the bench, he had sufficient judicial acu- men left amidst preceptible decay of his faculties to doubt the possibility of a verdict of guilty. I was assured in Liverpool by one who had it direct from the official concerned, that when the jury retired the judge called up the clerk and asked him what the verdict would be. 'My lord,' he replied, 'I am not the jury.' ' ( )h.' said the judge, 'it is impossible for them to find her guilty in face of the medical evidence.' That was also the opinion of the prosecution." He ;dso states that under the English criminal law "no appeal is allowed from an unjust verdict or sentence, not even in a case fe and death; while in a civil action, where only a bale of cot- ton is at stake it is possible to appeal from court to court, even to the House of Lords. Thus Mrs. Maybrick's only hope is in the pardoning power, and the plan is to invoke this power by agitation." CIRCUMSTANTIAL EVIDENCE. 559 § 352. The Stokes Case Considered. — If all the circumstances shown are consistent with innocence, then there can be no con- viction. If they are not, then the question is whether they point to guilt so clearly and distinctly as to satisfy the mind beyond a reasonable doubt. The facts proved must all be consistent with and point to the defendant's guilt not only, but they must be in- consistent with his innocence. Church, Ok. J., in People v. B< n- nett, 49 N. Y. 144. If equally susceptible of two interpretations, one innocent and one not, the innocent one must be taken. Pollock v. Pollock, 71 N. Y. 137; Shultz v. Hoagland, 85 N. Y. 464. So it is said that if it be shown that either the defend- ant or a third person committed the deed, but it cannot be dis- tinctly ascertained which one, the defendant cannot be convicted. 1 Bishop, Crim. Proc. (3d ed.) £ 1106. The same author, section 1079, lays it down as established by many adjudications that the test of the sufficiency of circumstantial evidence is that the facts proved can be reasonably accounted for on no hypothesis which excluded the defendant's guilt, that with the theory of his guilt they are harmonious and consistent, and that they point to it so clearly and distinctly as to satisfy the jury of it beyond a reason- able doubt. People v. Stokes, -2 X. Y. Crim. Rep. 382. § 353. Yiews of the Texas Supreme Court. — The Texas supreme court has held, that to justify conviction upon circum- stantial evidence alone, the facts relied on must be absolutely in- compatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. Barnes v. State, 41 Tex. 342; Black v. State, 1 Tex. App. 391. In the case of Burrell v. State, 18 Tex. 713, the judgment was reversed as to the appellant, Burns, because the only evidence tending to criminate him was wholly circumstantial, and the court failed to instruct the jury upon its effect. They were instructed that " circumstantial testimony must tend closely to prove the fact, or it is not, of itself, sufficient, but may still be entitled to great weight in connection with direct testimony." In Cave v. State, 41 Tex. 182, it was held that in cases depend- ing upon circumstantial evidence, full instruction upon that species of evidence is requisite and essential. §354. Comparative Weight of Direct and Circumstantial Evidence. — With respect to the comparative weight due to direct 560 LAW OF EVIDENCE IN CRIMINAL CASES. and presumptive evidence, it has been said that circumstances are in many cases of greater force and more to be depended on than the testimony of living witnesses; inasmuch as witnesses may either be mistaken themselves, or wickedly intend to deceive others; whereas circumstances and presumptions naturally and necessarily arising out of a given fact cannot lie. Annesley v. Lord Anglesea, 17 7 low. St. Tr. 1430. It may be observed, that it is generally the property of circumstantial evidence to bring a more extensive assemblage of facts under the cognizance of a jury, and to require a greater number of witnesses, than where the evidence is direct, whereby such circumstantial evidence is more capable of being disproved if untrue. See 3 Bentham, Kationale of Judicial Evidence, 251. On the other hand, it may be observed, that cir- cumstantial evidence ought to be acted on with great caution, especially where an anxiety is naturally felt for the detection of great crimes. This anxiety often leads witnesses to mistake or exaggerate facts, and juries to draw rash inferences. Not un- frequently a presumption is formed from circumstances which would not have existed as a ground of crimination, but for the accusation itself; such are the conduct, demeanor, and expressions of a suspected person, when scrutinized by those who suspect him. And it may be observed, that circumstantial evidence, which must in general be submitted to a court of justice through the means of witnesses, is capable of being perverted in like manner as direct evidence, and that, moreover, it is subjected to this ad- ditional infirmity, that it is composed of inferences each of which may be fallacious. Phil. Ev. (10th ed.) 468; Phil. Ev. (8th ed.) 458; Eoscoe, Grim. Ev. (7th ed.) 14. The relative merit of evidence direct and circumstantial has proved fertile matter of controversy. On the one hand, it has been widely claimed in behalf of circumstantial evidence that, while witnesses lie, facts do not. Rex v. Blandy, 18 How. St. Tr. 1118, L187; 6 Paley, Moral and Political Philosophy, chap. 9, Ram. Facts (3d Am. ed.) 287; Burnett, Crim. Law of Scotland, 523; 2 Burke's Works (II. cV B.'s ed.) 624. On the other hand, frequent reference is made to lamentable instances of wrong con- viction on such evidence. Bam, Facts (3d Am. cd.) 439-459. Each have their peculiar advantages and characteristic dangers. Ab- stractedly speaking, presumptive evidence is inferior to direct evidence, seeing that it is in truth only a substitute for it, and an CIRCUMSTANTIAL EVIDENCE. 5G1 indirect mode of proving that which otherwise might not be probable at all. Gilbert, Ev. (4th. ed.) 157; Rex v. Burdett, 4 Barn. & Aid. 95, 123. "The force of circumstantial evidence," observes Mr. Starkie, " being exclusive in its nature, and the mere coincidence of the hypothesis with the circumstances being, in the abstract, insuffi- cient, unless they exclude, every other supposition, it is essential to inquire, with the most scrupulous attention, what other hypothesis there may be agreeing wholly or partially with the facts in evidence. Those which agree even partially with the cir- cumstances are not unworthy of examination, because they lead to a more accurate examination of those facts with which, at first, they might appear to be inconsistent; and it is possible that on a more accurate examination of these facts, their authenticity may be rendered doubtful, or even altogether disproved." The same able writer from whom this passage is quoted has another observation, which also should be kept in view, while dealing with the facts of this case. " To acquit, on light, trivial, and fanciful suppositions, and remote conjectures, is a virtual violation of the juror's oath- while, on the other hand, he ought not to condemn, unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and unless he be so convinced by the evi- dence, that he would venture to act upon that conviction, in matters of the highest concern and importance to his own inter- est." Phillips, Famous Cases Circ Ev. 53<>. § 355. Rules of Induction Specially Applicable to Circum- stantial Evidence. — Mr. A V ills in his justly celebrated essay on the Principles of Circumstantial Evidence, tabulates a few of the leading rules which are closely identified with this topic. "Rule 1. — The facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum. •?:- * * * * ■;•:• * * * * "Rule 2. — The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability. This is a universal rule of jurisprudence, founded upon evident principles of justice; and it is a necessary consequence, that the affirmant party is not absolved from its obligation because of the difficulty which may attend its application. No man can be 36 562 LAW OF EVIDENCE IN CRIMINAL CASES. justly deprived of his social rights but upon proof that he has- committed some act which legally involves the forfeiture of them. The law respects the status in quo, and regards every man as legally innocent until the contrary be proved. To prove a nega- tive is in most cases difficult, in many impossible. Criminality. therefore, is never to be presumed. But, nevertheless, the opera- tion of tliis rule may, to a certain extent, be modified by circum- stances which create a counter-obligation, and shift the onus prooandi. Lord Brougham said that the burden of proof often shifts about from one party to another in the progress of a cause, according as the evidence raises a presumption one way or the other. It follows, from the very nature of the circumstantial evidence, that, in drawing an inference or conclusion as to the existence of a particular fact from other facts that are proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. * * ******** "Rule 3. — In all cases, whether direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits. The suppression or non-production of pertinent and co- gent evidence necessarily raises a strong presumption against the party who withholds such evidence when he has it in his power to produce it, of which some interesting exemplifications appeal- in other parts of this essay. This rule applies a fortiori to cir- cumstantial evidence, a kind of proof which, for reasons which have been already urged, is inherently inferior to direct and posi- tive testimony; and, therefore, whenever such evidence is capable of being adduced, the very attempt to substitute a description of evidence not of the same degree of force, necessarily creates a suspicion that it is withheld from corrupt and sinister motives. Nor is the application of the rule conlined to the proof of the prin- cipal fact; it is 'the master rule which governs all the subordinate rules.' . . . The rule is, however, necessarily relaxed, where its application becomes impracticable by the wrongful act of the party who would otherwise be entitled to claim its protection; as where a witness is kept out of the way by or on his behalf (Reg. v. Guttridge, 9 Car. & P. 471; Reg. v. Scaife, 20 L. J. M. C. 229; 2 Hawk, P. C. chap. 46, § 15); or a deed or other instrument in his possession, which he refuses, after notice, to produce. Rex v. CIRCUMSTANTIAL EVIDENCE. 563 Hunter, 3 Car. & P. 591, 4 Car. & P. 128; Rex v. JIaworth, 4 Car. & P. 251. "Considering, moreover, the inherent infirmity of human mem- ory, in the fair construction and application of this rule, evidence ought in all criminal cases, and a fortiori in cases of circumstan- tial evidence, to be received with distrust, wherever any considera- ble time has elapsed since the commission of the alleged offense. . . . An unavoidable consequence of great delay is, that the party is deprived of the means of vindicating his innocence, or of proving the attendant circumstances of extenuation, the crime itself be- comes forgotten, or is remembered but as a matter of tradition, and the offender may have become a different moral being; in such circumstances punishment can seldom, perhaps never, be efficacious for the purpose of example. On those accounts judges and juries are not always reluctant to convict parties charged with offenses committed long previously. "Rule 1. — In order to justify the inferences of guilt, the incul- patory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This is the fundamental rule, the experimentum cruris by which the relevancy and effect of circumstantial evidence must be estimated. The awards of penal law can be justified only when the strength of our convictions is equivalent to moral certainty; which, as we have seen, is that state of the judgment, grounded upon an adequate amount of appro- priate evidence, which induces a man of sound mind to act with- out hesitation in the most important concerns of human life. In cases of direct credible evidence, that degree of assurance imme- diately and necessarily ensues; but in estimating the effect of cir- cumstantial evidence, there is of necessity an ulterior intellectual process of inference which constitutes an essential element of moral certainty. The most important part of the inductive pro- cess, especially in moral inquiries, is the correct exercise of the judgment in drawing the proper inference from the known to the unknown, from the facts proved to the factum prdbandum. A number of secondary facts of an inculpatory moral aspect being given, the problem is, to discover their causal moral source, not by arbitrary assumption, but by the application of the principles, of experience in relation to the immutable laws of human nature and conduct. It is not enough, however, that a particular by- 564 LAW OF EVIDENCE IN CRIMINAL CASES. pothesis will explain all the phenomena; nothing must be inferred because, if true, it would account for the facts; and if the circum- stances are equally capable of solution upon any other reasonable hypothesis, it is manifest that their true moral cause is not exclu- sively ascertained, but remains in uncertainty; and they must therefore be discarded as conclusive presumptions of guilt. Every other reasonable supposition by which the facts may be explained consistently with the hypothesis of innocence must therefore be rigorously examined and successively eliminated; and only when no other supposition will reasonably account for all the conditions of the case, can the conclusion of guilt be legitimately adopted. ********** Rule 5. — If there be any reasonable doubt of the guilt of the accused, he is entitled, as of right, to be acquitted. In other words, there must be no uncertainty as to the reality of the con- nection of the circumstances of evidence with the factum, pro- handura, or as to the sufficiency of the proof of the corpus delicti, or, supposing those points to be satisfactorily established, as to the personal complicity of the accused. This is in strictness hardly so much a distinct rule as a consequence naturally flowing from, and virtually comprehended in the preceding rules. In- deed, it is more properly a test of the right application of those rules to the facts of the particular case. The necessity and value of such test is manifest from the consideration of the numerous fallacies incidental to the formation of the judgment on indirect evidence and contingent probabilities, and form the impossibility in all cases of drawing the line between moral certainty and doubt. . . . While it is certain that circumstantial evidence is frequently mi >st convincing and satisfactory, it must never be forgotten, as was remarked by that wise and upright magistrate, Sir Matthew Hale, that * persons really innocent may be entangled under such pre- sumptions, that many times carry great probabilities of guilt;' (2 Hale, P. C. chap. 39; see Bex v. Thornton, Warwick Autumn As- sizes, 1^17) wherefore, as he justly concludes, 'this kind of evi- dence must be warily pressed.' 'It is safer . . . to err in acquitting than in convicting, and bet- ter that many guilty persons should escape than that one innocent man should suffer.' 2 Hale, P. C. chap. 30. Paley controverts the maxim, and urges that 'he who falls by a mistaken sentence may be considered as falling for his country, while he suffers under CIRCUMSTANTIAL EVIDENCE. 565 the operation of those rules by the general effect and tendency of which the welfare of the community is maintained and upheld." 6 Mor. & Pol. Phil. chap. 9. There is no judicial enormity which may not he palliated or justified under color of this execrable doctrine, which is calculated to confound all moral and legal dis- tinctions; its sophistry, absurdity, and injustice have been unan- swerably exposed by one of the ablest of lawyers and most upright of men. Romilly, Observation on the Common Law of England, 72; Best, Presumptions, 292. Justice never requires the sacrifice of a victim ; an erroneous sentence is calculated to produce incal- culable and irreparable mischief to individuals, to destroy all con- fidence in the justice and integrity of the tribunals, and to intro- duce an alarming train of social evils as the inevitable result." Wills, Circ. Ev. chap. 6. pp. 173-194. § 356. The Rule in Civil Actions Having Criminal At- tributes. — It is quite usual in civil actions, for the court to in- struct the jury that the mere preponderance of evidence is suffi- cient to justify a verdict for the plaintiff or defendant in the litigation as the case may be. But, in those civil actions where a criminal act is alleged, the attributes of a criminal act follow the allegation. And the party seeking to sustain such an averment, must comply w T ith the rule in criminal actions, and establish the allegation beyond a reasonable doubt. Blaeser v. Milwaukee M. Mat. Ins. Go. 37 Wis. 31, 19 Am. Rep. 747; ThurUll v. Beaumont. 1 Bing. 339; Washington U. Ins. Co. v. Wilson, 7 Wis. 169; McConnell v.Delawan Mut. S. Ins. Co. 18 111. 228; Weston v. Gravlin, 49 Vt. 507; Thayer v. Boyle, 30 Me. 475; Bradish v. Bliss, 35 Vt. 326; Butman v. Hobbs, 35 Me. 228; Jones v. Greaves, 26 Ohio St. 2, 20 Am. Rep. 752; White v. Comstock, 6 Vt. 405; Barfield v. Britt, 47 X. C. 41, 62 Am. Dec. 190; Brooks v. Clayes, 10 Vt. 37; Kmcade v. Bra dshaw, 10 N. C. 63; Biker v. Hooper, 35 Vt. 457, 82 Am. Dec. 646; Kane v. Hibemia Ins. Co. 39 K J. L. 697, 23 Am. Rep. 239; Freeman v. Freeman, 31 Wis. 235; FoUom v. Brown, 25 N. H. 122; Scott v. Home Ins. Co. 1 Dill, 105; Rothschild v. American Cent. Ins. Co. 62 Mo. 356; MunsonY. At/mood, 3d Conn. 102; Watklns v. Wallace, 19 Mich. 57; State v. Goldsborough, 1 Houst. Crirn Rep. 316; Burr v. Wlllson, 22 Minn. 206; Schnell v. Toomer. 56 Gra. 168; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; Welch v. Jugenheimer, 56 Iowa, 11, 41 Am. Hop. 77; Fills v. BuzzeU, 566 LAW OF EVIDENCE IN CRIMINAL CASES. 60 Me. 209, 11 Am. ltep. 204; Barton v. Thompson, 46 Iowa, 30, 26 Am. Rep. 131; Knowles v. Scribner, 57 Me. 495; Kendig v. Overhulser, 58 Iowa, 195; Schmidt v. JVew York U. Mut.F. Ins. Co. 1 Gray, 529; JZtna Ins. Co. v. Johnson, 11 Bush, 587, 21 Am. Rep. 223; Hoffman v. Western M. & F. Ins. Co. 1 La. Ann. 216; Sloan v. Gilbert, 12 Bush, 51, 23 Am. Rep. 708; Wightman v. Western 21. & F. Ins. Co. 8 Rob. (La.) 442. PART IV. EVIDENCE FOR THE DEFENSE. CHAPTER XLIY. EVIDENCE OF SELF-DEFENSE. § 357. Preliminary Remarks. 358. What must Appear to Justify the Claim of Self-defense. 359. Self-defense Rests upon Necessity. 360. Extent of the Retreat. 301. When Heroic Methods may he Employed. 362. Threats Considered in Relation to Self-defense. 363. Threats Competent to Show Intent. 364. The Rule in Alabama. 365. Proof of Lying in Wait and Violent Temper. 366. Vacillation in the Authorities. 367. Pertinent Illustration of a Missouri Case. 368. Views of tli e Virginia Court. 369. }\lt<>f is Reasonable Cooling Time. 370. Extended Collation of Authority. § 357. Preliminary Remarks. — All civilized communities as well as savage conditions recognize the principle of lawful resistance; but it is the province only of the higher civilization to prescribe the limits within which this insistence is to act, and within which when shown, it will declare the exoneration of the party resisting. The most expert publicists sanction "lawful resistance" to the commission of a crime. It is the first duty of the citizen to pre- vent it, and his only concern in preventing it is to take care that the methods he employs are lawful. Resistance sufficient to prevent the crime may be made by the party about to be injured : (1) To prevent a crime against his person; (2) To prevent an illegal attempt by force to take or injure property in his lawful possession. Any other person, in 567 508 LAW OF EVIDENCE IN CKIMIMAL CASES. aid or defense of the person about to be injured, may make resistance sufficient to prevent the injury. ]^. Y. Code Criin. Proc. §§80, 81. So by a parity of reasoning any evidence is pertinent in a criminal prosecution, that serves to show that the acts of the parties were in good faith designed to prevent a crime, and that the parties so acting, although so unfortunate as to inflict an in- jury persona] or otherwise, were acting in concert with the officers of justice or by their express command. It should be added that in capital cases the widest latitude should be given to the evidence for the defense, this always has been the rnle from the time of Lord Hale. 2 Hale, P. C. 290; Austin v. State, 14 Ark. 559; Johnson v. State, 14 Ga. 61; Moore v. State, 2 Ohio St. 500. It may be further said, that when a person is subjected to mal- treatment by another, he may seek protection from the authorities, and even that it is his duty to do so, as a conservator of the peace, but the omission to do it does not in any wise deprive him of the protection of the law, and when assailed, he may defend himself in the same manner, and to the same extent, and by the same means, as if he had sought the protecting arm of the law. The question is not, in such cases, whether the prisoner has sought that remedy, but whether he was in imminent peril, or was justified in believing himself to be, when he did the act com- plained of. § 35*. What must Appear to Justify the Claim of Self- defense. — In the majority of criminal prosecutions for homicide and assault and battery, self-defense is interposed by way of justification. In all instances where it is sought to uphold such a contention it must appear that there was no apparent mode of escape open to the defendant. The correct rule will find expression in the following language: " "Where a person is unlawfully assaulted by another, the party assaulted has a right to defend himself and to use sufficient force to make bis defense effectual. But the law never permits the unnecessary use of force; therefore, when a man is attacked he must not use force to defend himself, if he can otherwise protect himself. If he lias other means or ways of avoiding the assault that appear to him at the time sufficient and available and that are in fact sufficient and available he must resort to them and EVIDENCE OF SELF-DEFENSE. 569 cannot justify the force for his defense, or in that case its use can- not justify the force for his defense, for in that case its use would be unnecessary." Harrison v. Harrison, 43 Vt. 417; State v. Sloan, 47 Mo. 604; State v. Collin*, 32 Iowa. 36; State v. Good- rich, 19 Vt. 116, 47 Am. Dec. 676; Com. v. Crawford, 8 Phila. 490; State v. Wood, 53 Vt. 560; Com. v. Scott, 1 Pa. L. T. N. S. 221; Halloway v. Com. 11 Bush, 344; Kendall v. State, 8 Tex. App. 569; State v. Dixon, 75 IS". C. 275; Presser v. State, 77 Ind. 274; People v. Coughlin, 65 Mich. 704; *Sta& v. Matthi ws, 78 N. C. 523; Duncan v. State, 49 Ark. 543; Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52; People v. Gonzales, 71 Cal. 569; Fortenberry v. State, 55 Miss. 403; Steinmeyer v. People, 95 111. 383; State v. Parker, 96 Mo. 382; Sta& \. Donnelly, 69 Iowa, 705, 58 Am. Rep. 234; Ponton v. Peopte, 114 111. 505; Sta& v. Partlow, 90 Mo. 608, 55 Am. Rep. 31. A party assaulted is justified in using such force as is necessary to repel an assailant, but no more; and if unnecessary force is used he becomes the assailant. Gallaght r v. State, 3 Minn. 270; People v. Williams, 32 Cal. 280; People v. Campbell, 30 Cal. 312; Rasberry v. /State, 1 Tex. App. 664; Sfc //vr/ v. State, 1 Ohio St. 66; People v. Anderson, 44 Cal. 65. But it is well settled that the degree of force must not exceed the bounds of defense and prevention; and this depends on the circumstances of each ease; and the respective condition of the parties. Gallagher v. StaU , supra; State v. Quin, 3 Brev. 515; People v. Doe, 1 Mich. 451: Patten v. People, 18 Mich. 314; Cotton v. State, 31 Miss. 504; Jackson v. State, Horrigan & T. Cases on Self-defense, 476:. Oliver v. State, 17 Ala, 587. There must be at least a seeming necessity, an actual necessitv, or a reasonable belief of such necessity, to ward off some impend- ing harm. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422: State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416; State v. Burke, 30 Iowa, 331; Oliver v. State, supra', Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Reg. v. Bull, 9 Car. & P. 22; Dill v. Sta& , 25 Ala. 15. Men, when threatened with danger, must determine the neces- sity of resorting to self-defense, and they will not be held responsible for a mistake in the extent of the actual danger, nor be subject to the peril of making that guilty, if appearance prove false, which would be innocent if they prove true. Campbell v. 57U LAW OF EVIDENCE IN CRIMINAL CASES. People, 16 111. 17,61 Am. Dec. 49; Meredith v. Com. 18 B. Mon. 49; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; Pond v. P< >ple, 8 Midi. L60; State v. Sloan, 47 Mo. 604. Necessity is a defense when the act charged was done to avoid irreparable evil, from which there was no other adequate means of escape, and the remedy was not disproportionate to the threat- ened evil; and the necessity must not have been created by the fault of him who pleads it, nor be the result of his own culpa- bility, nor be rashly rushed into. Harris v. Com. 14 Bush, 362; Bex v. Stratton, 21 How. St. Tr. 1045; State v. Starr, 38 Mo. 270; Hi unes v. State, 17 Ga. 465; Roach v. People, 77 111. 25; The Argo, 1 Gall. 150; Reg. v. Dunnett, 1 Car. & K. 425; The Joseph, 12 U. S. 8 Cranch, 451, 3 L. ed. 621; The New York, 16 V. S. 3 Wheat. 50, 4 L. ed. 333; Shorter v. People, 2 X. Y. 193, 51 Am. Dec. 286; Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481; v. Smith, 1<» Nev. 106; Vaiden v. Com. 12 Gratt. 717; State v. Underwood, 57 Mo. 40; State v. Linney, 52 Mo. 40; State v. JVeeley, 20 Iowa, 108; State v. Stanley, 33 Iowa, 526; 0'//2. v. Selfridge, Horrigan ifc T. Cases on Self-defense, 3 ; Isaacs v. .s'/^A . 25 Tex. 174. See State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416. The authorities are believed to be quite con- sistent in maintaining this principle. It is laid down and believed to be undoubted law, that, in all cases of slight and insufficient provocation, if it may be reason- ably inferred from the weapon made use of, or the manner of using it. or from any other circumstance, that the party intended merely to do some great bodily harm, such homicide will be murder in the second degree, in like manner as if no provocation had been given, but not a case of murder in the first degree. Mc- Daniel v. Com. 77 Ya. 281; Davis, Crim. L. 99. Cases arise, as all agree, where a person assailed may, without retreating, oppose force to force, even to the death of the assail- ant; and other cases arise in which the accused cannot avail him- self of the plea of self-defense, without showing that he retreated as far as he could with safety; and then killed the assailant only for the preservation of his own life. Foster, Crim. L. 275; 1 East. P.O. 277; 4 Bl. Com. 184. Courts and text-writers have not always stated the rules of decision applicable in defenses of the kind in the same forms of expression. None more favorable to the accused have been EVIDENCE OK SELF-DEFENSE. 571 promulgated anywhere than those which were adopted seventy years ago, in the trial of Selfridge for manslaughter. Pamph. Rep. 160 ; Ilarrigan & T. Cases on Self-defense, 1. Three propositions were laid down in that case: 1. That a man who, in the lawful pursuit of his business, is attacked by another, under circumstances which denote an inten- tion to take away his life or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as*far as he can, or disabling his adver- sary without killing him, if it be in his power. 2. That when the attack upon him is sudden, tierce and violent, that a retreat would not diminish but increase his danger, he may instantly kill his adversary without retreating at all. 3. That when, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or to commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. Learned jurists excepted at the time to the third proposition, as too favorable to the accused; but it is safe to affirm that the legal profession have come to the conclusion that it is sound law, in a case where it is applicable. Support to that proposition is found in numerous cases of high authority. Wiggins v. Utah, 03 U. S. 465, 23 L. ed. OIL § 350. Self-defense Rests upon Necessity.—" Self-defense, therefore, rests upon necessity, actual or apparent. A common assault, not actually or apparently endangering life or doing great bodily harm, will not excuse a homicide in repelling it. . The danger of death or great bodily harm must be real, or honestly believed to be so, and on reasonable grounds. The danger must be apparent and imminent, and existing at the time of the fatal injury, or honestly believed to be so, and on reason- able grounds. The belief or apprehension of danger must be founded on sufficient circumstances to authorize the opinion that the purpose to kill or do great bodily harm then exists, and the fear that it will at that time be executed." Bamards v. State, 88 Term. 229. When a man is placed in such a position that a reasonably pru- dent man, by the circumstances and facts surrounding him, would have in good faith a well-founded belief that his life was in peril, 572 LAW OF EVIDENCE IN CRIMINAL CASES. then he would be justified in using such means in defense of him- self, as might fairly appear to be necessary. White v. Territory , 3 Wash. fer. 397. An act done from necessity raises no presumption of a criminal intent, but the necessity must be actual, imminent and apparent, with no other probable or possible means of escape. It must be great, and must arise from imminent peril to life or limb. Olive* v. State, 17 Ala. 587. See Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Kennedy v. Com. 14 Bush, 341; Farris v. Com. 14 Bush, 363; May v. State, 6 Tex. App. 191; Blake v. State, 3 Tex. App. 581; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; Peo- plt v. Sullivan, 7 X. Y. 396; Com, v. Drum, 5S Pa. 9; 4 BL Com. 28; 1 Hale, P. C. 43, 52; 1 Bishop, Crim. L. (6th ed.) § 346. So in Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481, Thompson, J., quoting the language used by Bronson, J., in the case of Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, says: "I take the rule to be settled that the killing of one who is an assailant must be under a reasonable apprehension of loss of life or great bodily harm, and the danger must appear so imminent at the moment of the assault as to present no alternative of escap- ing its consequences but by resistance. Then the killing may be excusable, even if it turn out afterwards that there was no actual danger. "The law of self-defense is a law of necessity, and that necessity must be real, or bear all the semblance of reality, and appear to admit of no other alternative, before taking life will be justifiable or excusable. Whenever it is set up, the case will always call for a most careful and searching scrutiny, to be sure that it rests., where alone it can rest, on the ground of real or apparently real necessity." Panton v. People, 114 111. 505, 5 Am. Crim. Eep. 425, note. § 360. Extent of the Retreat.— A man is not required to do everything in his power to avoid the necessity of slaying his assailant. "Where there is no escape, after retreating as far as possible, killing will be justifiable; so where retreat is impossible or perilous, or would increase the danger; or where further retreat is prevented by some impediment, or was as far as the fierceness of the assault permitted. But if the assaulted party is in fault, he is bound to retreat as far as he can safely do so; he is required to decline the combat in good faith. Phillips v. Com. 2 Duv. EVIDENCE OF SELF-DEFENSE. Did 328; Bohannon v. Com. 8 Bush, 481; People v. Sullivan, 7 N. Y. 306; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481; Meredith v. Com. 18 13. Mon. 49; Reg. v. aSW^A, 8 Car. & P. 160; Creek v. tftate, 24 Ind. 151; Tweedy v. State, 5 Iowa, 433; Com. v. Selfridge, Harrigan "■/„ v. .V.'A\ 29 Ohio St. 186; Davison v. J>pfe, 90 111. 221; tftate v. ///y^/, 49 K C. 216; £tafc v. /////, 20 K C. 491; State v. CAflOT*, 80 K C. 353. He is not obliged to retreat or to go to the wall from an assail- ant armed with a deadly weapon; and if he is driven to the wall .so that he must he killed or sustain great bodily harm, and there- fore kills his assailant, it is excusable homicide. State v. Ingold, Phillips v. Com. and Tweedy v. State, supra,' Smalts v. Com. 3 Bush, 32; Young v. Com. 6 Bush, 312; Carieo v. Com. 7 Bush, 124. But see Bohannon v. Com. supra/ ( 'arroll v. State, 23 Ala. 2S; Pond v. People, 8 Mich. 150; 1 East, P. C. 271; Destj, Am. Crim. L. 31. And if he uses all the means in his power to escape, even kill- ing in self-defense is lawful. Com. v. Selfridge, Horrigan & T. Cases on Self-defense, 1; People v. Doe, 1 Mich. 451; People v Sullivan, State v. Shippey, and Bohannon v. Com. supra. In 1803, Mr. East published his excellent Treatise on the Pleas of the Crown, and on page 271, says, in speaking of homicide from necessity: "Herein may be considered: 1. What sort of attack it is lawful and justifiable to resist, even by the death of the assailant, and where the party is without blame. 2. Where such killing is only excusable, or even culpable, and the party is not free from blame," etc. In relation to the first sort, the author says: "1. A man may repel force by force, in defense of his per- son, habitation or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary and the like, upon either. In these cases he is not obliged to retreat, but may pur- sue his adversary until he has secured him from all danger; and, if he kill him in so doing, it is called justifiable self-defense; as, on the other hand, the killing, by such felon, of any person so lawfully defending himself, will be murder. But a bare fear of any of these offenses, however well grounded, as that another lies in wait to take away the party's lite, unaccompanied with any 574 LAW OF EVIDENCE IN CKIMINAL CASES. overt act indicative of such an intention, will not warrant in kill- ing that other by way of prevention. There must be an actual danger at the time." Erwvn v. State, 29 Ohio St. 186. A very brief examination of the American authorities makes it evident that the doctrine, as to the duty of a person assailed to retreat as far as he can, before he is justified in repelling force by force, has been greatly modified in this country, and has with u& a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illustrated by the recent decisions of our courts, bearing on a general subject of the right of self-defense. Eunyan v. State, 57 Ind. 80, 26 Am. Rep. 52. This principle has been carried to its full extent in several of our decisions and has been vindicated in many others that are not reported. § 361. When Heroic Methods may be Employed. — Respect- able authority exists in favor of the proposition, that where the evidence clearly discloses the presence or imminency of great danger, resort may be had to heroic methods, even the taking of life. In 1 Rutherforth's Institutes of Natural Law, chap. 16, § 5, it is said, that the law of nature "cannot be supposed to oblige a man to expose his life to such danger as may be guarded against; and to wait till the danger is just coming upon him, before it allows him to secure himself." Also the following passage from the same section : " I see not, therefore, any want of benevolence which can be reasonably charged upon a man in these circum- stances, if he takes the most obvious way of preserving himself,, though perhaps some other method might have been found out, which would have preserved him as effectually, and produced less hurt to the aggressor, if he had been calm enough, and had been allowed time enough to deliberate about it." He also cited Grainger v. State, 5 Yerg. 459, to the effect that, " if a man, though in no great danger of serious bodily harm, through fear, alarm or cowardice, kill another, under the impres- sion that great bodily injury is about to be inflicted on him, it is neither murder or manslaughter, but self-defense." See also Tht, Marianna Flora, 24 U. S. 11 Wheat. 51, 6 L. ed. 417; The Louis, '1 Dod. Adm. 264; 13 Bacon's Works, by Montagu (Lon- don ed. 1831) 160; 4 Bl. Com. 186. EVIDENCE OF SELF-DEFENCE. 575 § 362. Threats Considered in Relation to Self- Defense.— Threats of violence by the deceased against the accused, though not communicated to the latter, are admissible as evidence where there is any doubt as to who began the encounter. They tend to show that it was the intention of the deceased at the time of the meeting to attack the accused, and hence tend to prove that the former brought on the conflict, and are relevant evidence. If all the evidence is to the effect that the defendant was the aggressor, it is not admissible. Wilson v. State (Fla.) 17 L. R. A. 05-f, and note, reproduced by permission. Note. — Ecidence in a criminal case of threats of accused, or of person injuria or killed. 1. Threats by the defendant. It is competent to show that the prisoner had made previous threats to kill his victim. Pullieim v. State, 88 Ala. 1; Beibcock v." People, 13 Colo. 515; Rains v. State, 88 Ala. 91; Hodge v. State, 26 Fla. 11; State v. Elkins, 101 Mo. 344: People v. Jones, 99 N. Y. 667; State v. Mr Kinney (Kan.) March 6, 1884; Stale v.. McCahill, 72 Iowa, 111; Howard v. State, 25 Tex. App. • ;>•!: Schoolcraft v. People, 5 West. Rep. 474, 117 111. 271; Griffin v. State, 90 Ala. 596; State v. Dickson, 78 Mo. 438. Threats by the defendant in a trial for murder are admissible to show his animus toward the deceased. White v. Territory, 3 Wash. Ter. 397; Peoples. Brown, 76 Cal. 573; Cribbs v. State, 86 Ala. 613; State v. Glahn, 97 Mo. 679; Nicholas. Com. 11 Bush, 575; Casat v. State, 40 Ark. 511; State v. Dickman, 11 Mo. App. 538. This although he was drunk at the time of making the threats. Smith v. Com. (Ky.) June 2, 1887. On the trial of a man for the murder of his wife, his threats to shoot or kill the deceased are admissible. People v. Simpson, 48 Mich. 474. In Goodwin v. State, 96 Ind. 550, 4 Crim. L. Mag. 565, threats of the accused to shoot deceased, made thirty years before the homicide, were admitted, there being other evidence of long continued hostility. Elliott, J., said: "Threats against life are always admissible against an accused, but their remoteness from the time of the homicide is a circumstance to be considered in determin- ing the weight and effect to be assigned them." On a trial for assault with intent to kill, it appearing that the defendant and the woman injured had lived in adultery for some time and that she had left him and refused to return, and his threats in consequence of her refusal to do 80, is competent to show motive. Walker v. Slate, 85 Ala. 7. On a trial for assault proof is admissible of threats made a few hours before. State v. Henn, 39 Minn. 476. The fact of a previous difficulty between defendant and a person assaulted by him and his threats against such person may be proved in the prosecution for assault with intent to murder, to show malice in motive. Lawrence v. State, 84 Ala. 424. a. Subsequent threats. A declaration by the prisoner who returned to the place of killing half an hour after the fatal blow was struck, " that he had come to kill " the deceased 576 LAW OF EVIDENCE IN CRIMINAL CASES. may be admitted to show his hostile feeling. McManus v. State, 36 Ala. 285. Where the defendant, in the court-house, after the indictment was found, and about two weeks before the trial, said to the injured party, " I'll get you yet," this was held admissible as referring to the past act and including an implied admission of the previous attempt. Walker v. State, 85 Ala. 7. Evidence of what preceded and followed between the parties is admissible to show that the language used in a letter imported a threat of the character mentioned in N. Y. Penal Code, § 538. People v. Gillian, 50 Hun, 35. Evidence of threats to do the plaintiff bodily harm, made by the defendant before an alleged assault, or so immediately after it as to constitute part of the transaction, is competent. Caverno v. Jones, 61 N. H. 653. 2. Threats by the deceased. a. Communicated threats. Threats made by deceased a short time before commission of the homicide indicating an angry and revengeful spirit toward prisoner and a determination to do violence to his person, communicated to prisoner, are admissible. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Powell v. Slate, 52 Ala. 1. An isolated complete sentence containing a threat by the accused against deceased is admissible on a trial for murder, although the witness did not hear and could not relate the whole of the conversation. State v. Oliver, 43 La. Ann. 1003. It is competent for the prosecution in a murder trial to prove a former difficulty and any threats made by defendant in connection therewith. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54. This although it is not competent to prove the particulars of such difficulty. Stitfrv. State, 91 Ala. 10, 24 Am. St. Rep. 853. Evidence of communicated threats is admissible to shed light upon the mental attitude of the prisoner towards the deceased when the homicide occurred. State v. Evans, 33 W. Va. 417; Wood v. State, 92 Ind. 269. Testimony on a murder trial, as to a meeting and altercation between deceased and defendant on the evening of the killing, in which deceased made threats against defendant, is admissible as tending to throw light upon the feeling existing between them. While v. State, 30 Tex. App. 652. Naked threats unaccompanied with personal violence are admissible to show reasonableness of prisoner's fears provided a knowledge of threats is brought home to him. Pitman v. State, 22 Ark. 354; Howell v. State, 5 Ga. 48; Monroe v. State, 5 Ga. 85. Evidence of threats by deceased against defendant, who killed him, though not affording a justification, is admissible, as it may operate in mitigation of the offense. Howard v. State, 23 Tex. App. 265. A declaration of deceased in the nature of a threat against defendant, made a few days before his death, is competent evidence on the murder trial as a circumstance tending to show that the deceased was the aggressor. Brown v. State, 55 Ark. 593. Evidence of threats made by the deceased some days prior to the killing, at which time the accused was in fear of the deceased, was held admissible, where at the time of the killing the defendant was without fault and was in imminent danger of an attack, to show the purposes and motives of the de- ceased in making the attack. Slate v. Dodson, 4 Or. 64. EVIDENCE OF SELF-DEFENSE. 577 la Hudgins v. State, 2 Kelly (Ga.) 181, a son of the accused testified that he said to the latter: " Yonder comes John Anderson (deceased) and he will kill you." Lumpkin, J., said: "Had young Hudgins informed his father that Anderson was advancing in great haste, apparently much enraged, that he was using threats of personal violence, armed with a weapon, and the like, all this would he admissible to satisfy the jury that the homicide was in self-defense. The opinion of the witness is a very different thing." See also State v. Goodrich, 19 Vt. 117, .47 Am. Dec. 676. (1.) Overt act of hostile demonstrations. Threats of personal injuries, or even against the life of another, will not justify killing the one making them when he is doing nothing to carry them into effect. Gilmore v. People, 13 West. Rep. 509, 124 111. 380; People v. lams, ■57 Cal. 115. Proof of threats by the deceased will have no effect in extenuating the crime when he was at the time of the killing making no effort to execute them. State v. Harris, 59 Mo. 550. Threats though communicated are not admissible when the killing was not done in self-defense. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Green v. State, 69 Ala. 6. Evidence that deceased carried weapons and threatened to use them was excluded where there was no evidence that the prisoner committed the homicide in self-defense. People v. Garbutt, 17 Mich. 9. The Criminal Code of Texas provides that " where a defendant accused of murder seeks to justify himself on the ground of threats made against his own life, he may be permitted to introduce evidence of threats made, but the same shall not be regarded as affording a justification of the offense unless it be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to execute the threats so made." Paschal, Dig. art. 2270; Peck v. State, 5 Tex. App. 611. Evidence of threats is admissible when they were communicated to the accused previous to the killing, and when it appears that at the time of the killing the deceased made overt acts, indicative of a present intention to exe- cute the threats. Johnson v. State, 6G Miss. 189; State v. Stewart, 9 Nev. 130; State v. Hall, 9 Nev. 58; State v. Harrington, 12 Nev. 125; People v. Scoggim, 37 Cal. 683; State v. Harrod, 102 Mo. 590. When deceased has made threats against prisoner which heat the time of the killing shows an intention of executing evidence of such threats should be submitted to the jury to be considered by them in determining whether or not "adequate cause" for the homicide existed. Alexander v. State, 25 Tex. App. 260, 8 Am. St. Rep. 438. Threats of the deceased are admissible on a trial for murder although not part of the res gestm and there is no doubt as to who began the difficulty, where there is the slightest evidence tending to show the hostile demonstration by him which may reasonably be regarded as placing the accused in apparent immi- nent danger of life or of great bodily harm. Garner v. State, 28 Fla. 113. But not if the homicide was committed in cold blood upon a person unarmed and retreating. Thomason v. Territory, 4 N. M. 150. Or if the homicide was the result of the defendant's invitation to fight. State y. Wilson, 43 La. Ann. 840. 37 578 LAW OF EVIDENCE IN CRIMINAL CASES. Or if the defendant in any way provoked the occasion which produced the killing. Levy v. State, 28 Tex. App. 203, 19 Am. St. Rep. 826. Evidence of prior threats is not admissible in support of a plea of self-defense in homicide, unless they have been followed by an overt act or hostile demon- stration at the time of killing of such a character as to indicate that the deceased was then and there about to execute such threats, and to justify defendant in believing that his life was in such apparently imminent danger as to authorize him to take his adversary's. State v. Vosgrove, 42 La. Ann. 753; State v. Guillory, 44 La. Ann. — ; Smith v. State, 25 Fla. 517; People v. Haiti- day, 5 Utah, 467; Ilinson v. State, 66 Miss. 532; State v. Brooks, 39 La. Ann. 817; State v. Hays, 23 Mo. 287; Slate v. Demareste, 41 La. A.nn. 617; Holly v. State, 55 Miss. 424; Nash v. State, 2 Tex. App. 362; Territory v. Campbell, 9 Mont. 16. Evidence of threats by the deceased the day previous to the killing, to the effect that he and another would come at night and pull the house down, was allowed on a trial for murder. Meade's & Belt's Case, 1 Lew. C. C. 184. Threats of rioters that they would return another night soon after, to the defendant's house and break in if they were not admitted were allowed in evi- dence to establish a reasonable ground of the prisoner's apprehension. People v. Rector, 19 Wend. 567. Evidence is competent on a trial for murder, of threats by the deceased to- take the life of a person who was in a house which the former was violently attempting to enter at the time he was killed. King v. State, 55 Ark. 604. On a trial of two persons jointly indicted for murder, threats against deceased, made by one of them in the absence of the other, are admissible but not to be considered so far as the other is concerned. State v. McKinzie, 102 Mo. 620. And the fact that the testimony in a murder trial in regard to an overt act of violence by the deceased is conflicting, is no ground for excluding evidence of threats made by him. Garner v. State, 28 Fla. 113. b. Uncommunicated threats. Concerning the admission of uncommunicated threats in cases of homicide there has been much conflict of authority. In People v. Arnold, 15 Cal. 476, it was said that threats to be admissible for any cause must be shown to have been communicated to the accused. See also Powell v. State, 19 Ala. 577; Ed- gar v. State, 43 Ala. 48; Burns v. State, 49 Ala, 370; Rogers v. State, 62 Ala. 170; State v. Jackson, 17 Mo. 544, 59 Am. Dec. 281. In Lingo v. State, 29 Ga. 470, it was held that uncommunicated threats of the deceased are inadmissible where it is shown that at the time of the killing he acted only in self-defense. Threats of personal injury made by deceased against prisoner half an hour before the shooting, not communicated to the latter, could not have influenced the latter and were therefore immaterial. State v. Maloy, 44 Iowa, 104. The admissibility of antecedent threats by the deceased depends upon the fact of their having been communicated to the accused as a condition prece- dent; and the court may well refuse to admit them until this necessary founda- tion is laid, just as the admission of the testimony of deceased or absent wit- nesses is refused until the death or absence is proved. State v. McCoy, 29 La. Ann. 593; State v. Gregor, 21 La. Ann. 473. EVIDENCE OF SELF-DEFENSE. 579 Newly discovered evidence to the effect that deceased had a few days before the killing said that he intended to kill the prisoner, will not authorize a new trial when defendant did not know of the statement at the time of the killing and could not have done the killing on account of fears induced through a knowledge of it. Peterson v. State, 50 Ga. 142; Carr v. State, 14 Ga. 358. Formerly uncommuuicated threats, made by the deceased against the accused, were not competent evidence for the latter unless they constituted a part of the res gesta. Carroll v. State, 23 Ala. 28. § 343. Threats Competent to Show Intent. But the more modern cases favor the admission of such evidence in the fol- lowing cases: (a) To sliaw who began the affray. ""Where A is charged with a murderous assault upon B, or with killing B (the plea of self-defense not being set up) remarks or threats affecting A, made by B to a third party before the assault, are not admissible in A's behalf; espe- cially when it does not appear at what time they are communicated to him. Yet, if the question is whether the deceased was the assailant, the fact that he declared beforehand that he meant to attack the defendant is material; nor, on this issue, is it necessary that the defendant should be proved to have had notice of such threats." 1 Whart. Crim. L. § 642; Hart v. Com. 85 Ky. 77, 7 Am. St. Rep. 576. "Where the question is as to who began the difficulty uncommunicated threats are admissible. Sparks v. Com. 89 Ky. 644; Levy v. State, 28 Tex. App. 203; State v. Alexander, 66 Mo. 148; State v. Lee, 66 Mo. 165; Roberts v. State, 68 Ala. 156. In Little v. State, 6 Baxt. 493 (approved in Potter v. State, 85 Tenn. 88) Mc- Farland, J., said: "In all cases where the acts of the deceased are of a doubt- ful character, then evidence which may tend to show that he sought the meet- ing, or began or provoked the combat, is admissible, and, in this view previous threats made by the deceased, though not communicated to the prisoner, may yet tend to show the animus of the deceased, and to illustrate his conduct and motives, and in some cases might be important, in the absence of more direct evidence, to show which party began or provoked the fight." "When a fatal encounter occurs and it is doubtful which of the two com- menced the affray, the declaration of the prisoner at the time of the purchase of a pistol that he meant to use it on the deceased is admissible for the consid- eration of the jury. People v. Arnold, 15 Cal. 476. In this case (cited with approval in People v. Scoggins, 37 Cal. 670) Mr. Jus- tice Baldwin in delivering the opinion of the court, said: "It shows in other words the purpose for which the weapon was procured. This leads us to the inquiry whether the fact that A procures a weapon for a particular purpose conduces at all to show in a question of conflicting proofs as to the manner in which he used it what that manner was. We apprehend that if a man goes into a house, borrows a gun, goes out with it, saying that he means to use it on another, and an encounter happens between him and that other, and the wit- nesses who see the difficulty differ, or the circumstances are equivocal as to which one of the two commenced the affray, some light might be thrown upon this question conducing to or toward its solution by the proof of these facts as to A's procuring it, and his motives in doing so. The jury might possibly with some reason, conclude that as the weapon was procured for this purpose of assault on another, that purpose was fulfilled; that the assault in other 560 LAW OF EVIDENCE IN CRIMINAL CASES. words was made in pursuance of the intended purpose when the weapon was procured, and especially if other facts in corroboration of this conclusion existed. It is true there would be nothing conclusive in this. But the fact of the conclusiveness of this proof to establish the proposition which it is intro- duced to prove is not the decisive question. The question is, whether this item of fact be a matter proper to be considered by the jury in arriving at their con- clusion upon this mooted point. And we have no doubt that it is; that it may enter into the deliberations of the jury with all the other facts as a matter to be weighed by them with the rest of the proofs." In a prosecution for an assault, where there is doubt as to which is the aggressor, uncommuuicated threats by one party, preceding the affray, are admissible to show his animus towards the other party, as tending to show that he was the aggressor. State v. Bailey, 13 West. Rep. 620, 94 Mo. 311. (b) To corroborate evidence of communicated threats. When it has been shown on a trial for murder that a short time before the killing the deceased made threats against the prisoner which were communi- cated to him it is error to exclude proof of uncommunicated threats made by deceased only a few days previous to the killing. Cornelius v. Com. 15 B. Mon. 539. Where communicated threats followed by a subsequent homicide have been proved, evidence of other threats made between the communicated ones and the assault may be received as corroborative and explanatory. State v. Williams, 40 La. Ann. 168; Levy v. State, 28 Tex. App. 203; Holler v. State, 37 Ind. 57, 10 Am. Rep. 74; Roberts v. State, 68 Ala. 156. Where it was shown that certain threats, communicated to the prisoner, had been made by the deceased, and that deceased had followed the prisoner to a house, and that in the fatal encounter a rock had been used by the deceased, uncommunicated threats were held admissible (1) to corroborate the evidence of the threats already made; (2) to show the state of feeling of the deceased and the quo animo with which he had pursued his enemy; (3) to fix the owner- ship of the rock. State v. Turpin, 77 N. C. 473, 24 Am. Rep. 455. (c) To show the altitude of the deceased. Uncommunicated threats are not admissible when, at the time of the conflict, the deceased was making no hostile demonstration. Newcomb v. State, 37 Miss. 383; State v. Scott, 26 N. C. 415, 42 Am. Dec. 148; State v. Taylor, 64 Mo. 358. But evidence of previous uncommunicated threats made by the injured party against the accused is admissible on a trial for assault with intent to kill where the circumstances in evidence properly raise a case of self-defense. Bell v. State, 66 Miss. 192; Roberts v. State, 68 Ala. 156. The rules laid down in Roberts v. State, supra, were said to be in full accord with the true doctrine as established by the more recent cases of the highest courts in this country, although not in harmony with the former decisions of this court. See Powell v. State, Edgar v. State, Burns v. State, and Rogers v. . ra. And "where the question is as to what was deceased's attitude at the time of the fatal encounter, recent threats may become relevant to show that this atti- tude was one hostile to the defendant even though such threats were not com- municated to defendant. The evidence is not relevant to show the quo animo of the defendant, but it may be relevant to show that at the time of the meeting EVIDENCE OK SELF-DEFENSE. 581 the deceased was seeking the defendant's life." Whart. Crim. L. 1027, affirmed in Davidson v. People, 4 Colo. 145; Wiggins v. Utah, 93 U. S. 467, 23 L. ed. 942. See also State v. Evans, 33 W. Va. 417. Where there was a feud of several years' standing between the deceased and the prisoner, and the deceased had repeatedly made threats to take the life of the prisoner, which had been communicated to the latter, an uncommunicated threat made just prior to the fatal encounter should have been admitted in evi- dence to show the jury the attitude of the deceased at the time. Davidson v. People, 4 Colo. 145. A conversation held two days before the killing in which deceased made threats against prisoner was held admissible as a substantive fact to show the evil intent with which deceased went to the place where the accused was, to throw light upon the conduct of the deceased up to the time of the killing and to illustrate the transaction. Keener v. State, 18 Ga. 194, 63 Am. Dec. 269. In this case Lumpkin, J., said: "The true distinction we apprehend, as to the admissibility of evidence of threats, and one apparently overlooked in many of the cases, is this: when sought to be introduced by the defendant as a justification for the homicide, and without any overt act, he must show that they have been communicated; otherwise they can furnish no excuse for his conduct; but when offered to prove a substantive fact, namely, the state of feeling entertained by deceased toward the accused, it is competent testimony whether a knowledge of the threats be brought home to the defendant or not." In Peterson v. State, 50 Ga. 142, it was said that the Keener case carries the question of the admissibility of much testimony to the point of extreme liberal- ity, and the court declared that it would not go any further in the direction of that case than its term required. See also Eoyes' Case, 39 Ga. 718. Where the guilt or innocence of a person charged with murder depends materially upon the question whether he had reasonable ground to believe him- self to be in danger when the deceased was advancing upon him with a drawn knife, proof of threats previously made by the deceased is admissible though they are not shown to have been communicated to the defendant. Miller v. Com. (Ky.) 10 Ky. L. Rep. 672; White v. Territory, 3 Wash. Ter. 397. A threat made by the deceased on the day before the killing that he would elect his man at tbe election which was to occur next day, or kill the deceased, was held to be admissible as affecting the question of whether the killing was done in self-defense, although not communicated. Hart v. Com. 85 Ky. 77, 7 Am. St. Rep. 576. Upon an indictment for murder evidence was admitted to the effect that a short time before the killing the deceased had, at a meeting of the secret society of Good Templars, made threats against the prisoner, and said that he should stop selling liquor or lose his life, to show the character of the attack, the intention with which it was made, and that he had reasonable grounds to believe it necessary to go to the extent of taking his adversary's life. Duias v. State, 11 Ind. 557, 71 Am. Dec. 370. In Stokes v. People, 53 N. Y. 174, evidence had been given making it a ques- tion for the jury whether the case was one of excusable homicide upon the ground that the accused killed the deceased in self-defense. It was held that evidence of violent threats against the life of the accused were admissible. Grover, J., in this case thus lays down the reasons upon which this rule is founded: "Evidence of threats made by the deceased, which had been com- 5S2 LAW OF EVIDENCE IN CRIMINAL CASES. municatcd to the accused, was received by the court. Proof of the latter facts was competent, as tending to create a belief in the mind of the accused that his life was in danger, or that he had reason to apprehend some great bodily harm from the acts and motions of the deceased, when, in the absence of such threats, such acts and motions would cause no such belief. But why admissible upon this ground? For the reason that threats made would show an attempt to exe- cute them probable when an opportunity occurred, and the more ready belief of the accused would be justified to the precise extent of this probability. But an attempt to execute threats is equally probable, when not communicated, to the party threatened as when they are so; and when, as in this case, the ques- tion is whether the attempt was in fact made, we can see no reason for exclud- ing them in the former that would not be equally cogent for the exclusion of the latter, the latter being admissible only for the reason that the person threat- ened would the more readily believe himself endangered by the probability of an attempt to execute such threats. Threats to commit the crime for which a person is upon trial are constantly received as evidence against him, as circum- stances proper to be considered in determining the question whether he has, in fact, committed the crime, for the reason that the threats indicate an intention to do it and the existence of this intention creates a probability that he has in fact committed it. Had the deceased, just previous to his going into the hotel where the transaction occurred, declared that he was going there to kill the accused, and that he was prepared to execute this purpose, we think the evi- dence would have been competent upon the question whether he had in fact made the attempt when that question was litigated. And yet there is in prin- ciple no difference between this and the testimony offered and rejected. The difference is only in degree." But in State v. Bowser', 42 La. Ann. 936, before prior acts, conduct, or threats of the deceased can be shown to excuse a homicide on the ground of self- defense, knowledge thereof by the defendant must be proved. 3. Threats against third persons. a. By the defendant. Generally, threats made by the defendant, to kill some person other than the deceased are not admissible. Carr v. State, 23 Neb. 749. Threats against a particular person with whom the prisoner had had a quarrel are not admissible to show malice or intention to kill another person with whom, at the time, he had no quarrel, but whom, in a scuffle, he afterwards killed. Abernethy v. Com. 101 Pa. 328. A threat of defendant to "get even" with a person whom he supposed to be the author of a libelous article but whom he afterwards found out was not, cannot be proved against him on a trial for killing another person, his ill feeling towards whom grew out of the same publication. People v. Powell, 11 L. R. A. 75, 87 Cal. 348. But in Palmer v. People (111.) June 16, 1891, it was held that evidence that one accused of murder iu killing an officer who was attempting to arrest him but previously stated that he expected arrest by another officer, and that he exhibited a deadly weapon and indicated his intention to use it in case such officer attempted to arrest him, is admissible to show his animus and a pre- mediated design to make resistance to the expected arrest. Threats of an accused to kill several persons, including deceased, are not in- EVIDENCE OF SELF-DEFENSE. 583 admissible in evidence as being threats to kill others than deceased, where the theory of the state is that defendant and others had conspired together to kill all of those persons. Slade v. State, 29 Tex. App. 381. On a trial for murder alleged to have been the result of a conspiracy, evi- dence of a threat made by the mob immediately after the homicide to kill another, and of their endeavors to execute such threat, was admissible as tend- ing to show the desperate character of the conspiracy, and that murder was a fart of its programme. State v. McCahill, 72 Iowa, 111. Evidence of previous threats made by defendant against a railroad company is admissible on a trial for an assault upon one of its employes, upon the ques- tion of the motive and intent of the assailant, tfewton v. State, 92 Ala. 33. On a trial for homicide, evidence of a threat to kill the defendant, by a man waom the witness did not know to be the deceased except as he was informed by a bystander, is not admissible. Hasson v. Com. (Ky.) 10 Ky. L. Rep. 1054. b. By the deceased. Evidence of quarrelsome conduct and threats made by the deceased against a third party shortly before the killing is not admissible when not brought to tLe knowledge of the prisoner. People v. Henderson, 28 Cal. 465. 4. Threats by third persons. A single isolated threat of a third party, unconnected with any other circum- stance of the killing, is not admissible on a trial for homicide. Woolfolk v. State, 81 Ga. 551; Holt v. State, 9 Tex. App. 571. On the trial of one for the murder of a woman, threats by the husband of the woman, made some time before, were held inadmissible, there being no evidence that the threats had been lately renewed or that the hostile feeling continued to the time of the killing. Com. v. Abbott, 1%0 Mass. 472 Threats made by the brother of the accused against the deceased are inad- missible if the brother is not shown to have been indicted for the offense, and there is no evidence tending to show a conspiracy between the brothers as to the crime charged. State v. Laque, 41 La. Ann. 1070. But threats by an accomplice of the defendant against the deceased because the latter was talking about his sister, are admissible because tending to show malice independent of the defendant, where the accomplice testified that he killed the deceased at the instigation of the defendant. Marler v. State, 67 Ala. 55, 42 Am. Rep. 95. Threats of discharged employes against a railroad company are admissible in an action against it for personal injuries to a passenger by a wreck, in con- nection with evidence that the wreck was caused by a tie inserted in a frog in such a manner that it must have been placed there by human means; that there had been difficulty between the company and its employes; and that on the evening of the accident persons had been seen acting suspiciously on the tracks, — to show that the train had been wrecked by the intentional wrong doing of a third person. Worth v. Chicago, M. & St. P. R. Co. 51 Fed. Rep. 171. 5. General threats. General threats made by the defendant on trial for murder, some time before the killing, are inadmissible in evidence, when defendant and deceased are shown. to have been on friendly terms until the day of the homicide. State v. Crabtree (Mo.) July 1, 1892. 584 LAW OF EVIDENCE IN CKIMINAL CASES. On a trial for murder a threat by the deceased, made the day before the murder, that he was going to win some money or kill some one, is not admis- sible where there is nothing to connect the threat with the defendant, although defendant shot him in a quarrel at a gaming table. King v. Stale, 89 Ala. 146. But evidence of a threat made by deceased just before the killing, not directed to the defendants in terms but plainly referring to them, is admissible. Sparks v. Com. 89 Ky. 044. And in Whiitaker v. Com. (Ky.) 13 Ky. L. Rep. 504, it was held that general threats by defendant to kill someone on that day accompanied by an exhibition or reference to a knife and pistol, though inadmissible as part of the res geste of a homicide committed by him of which they formed no part, are competent to show general malice and a purpose to injure and kill someone. And in Hopkins v. Corn. 50 Pa. 9, 88 Am. Dec. 518, it was said not to be necessary that the victim should be selected. Threats of the prisoner within an hour before the stabbing that within twenty-four hours he would kill some- body are admissible as part of the res gestce. The bare fact that threats uttered by one charged with murder, in the course of the transaction in which the crime was committed, did not disclose the name of the party threatened, does not make proof of them immaterial or irrelevant. State v. King, 9 Mont. 445. Evidence that defendant, charged with murder, was heard to make threats, " to kill a man before sundown," on the day of the murder, is admissible. Hodge v. State, 2G Fla. 11. 6. Effect of lapse of time. The remoteness or nearness of time as to threats and declarations, pertaining to the act subsequently committed makes no difference as to the competency of the testimony. Keener v. State, 18 Ga. 194; Slate v. Ford, 3 Strobh. L. 517. Evidence of threats made by a defendant on trial for murder against deceased four months previous to the killing is admissible. Pate v. State (Ala.) Jan. 8, 1892. Threats against deceased made by defendant in a murder trial a month before the homicide are admissible upon the trial. State v. Campbell, 35 S. C. 28. Threats made three years before are admissible to show malice on the part of one who has committed an assault. Peterson v. Toner, 80 Mich. 350. See also Territory v. Roberts, 9 Mont. 12; Babcock v. People, 13 Colo. 515. But the weight to be given to evidence of previous threats made by the de- fendant depends upon their character, the occasion, nearness of time, and the particular circumstances surrounding the offense. White v. Territory, 3 Wash. Ter. 397; People v. Brown, 76 Cal. 573; Cribbs v. State, 86 Ala. 613; State v. Olahn, 97 Mo. 679; Pate v. State (Ala.) Jan. 8, 1892; Griffin v. Stale, 90 Ala. 599; Long v. State, 86 Ala. 43; Barnes v. State, 88 Ala. 204; Evans v. State, 62" Ala. 6. The fact that six or eight months have elapsed since the threat, goes not to- the admissibility, but to the weight to be given to the threat. Slate v. Bradley (Vt.) Aug. 25, 1892. And the effect of lapse of time upon their weight is for the jury. Cribbs v. State, 86 Ala. 013. On an indictment for assault with intent to murder, a conversation was held inadmissible between witness and the injured party on the evening before the EVIDENCE OF SELF-DEFENSE. 585 shooting, in -which the injured party had said that he had intended to kill defendant,— "the d — d son of a whore," though it appeared that witness had informed defendant of the insulting words, it not appearing that the shooting took place at the first meeting between the parties after defendant was so in- formed. Howard v. State, 23 Tex. App. 2ti~). The* weight of authority establishes the doctrine that when a person being without fault and in a place where he has a right to be is violently assaulted, he may, without retreating, repel force by force and if, in the reasonable exercise of his right of self- defense, his assailant is killed he is justifiable. Runyan v. State. 57 Ind. 84, 26 Am. Rep. 52; 1 Bishop, Crim. L. § 865. § 30-f. The Rule in Alabama.— The Alabama decisions hold, that after the intention of killing of the deceased with a deadly weapon had been proved, the burden rested on the defendant to prove a pressing necessity on his part to take life in self-defense, unless this fact arises out of the question produced against him to prove the homicide. The onus, therefore, rests on the defendant, in such case, to show that he could not safely retreat without appar- ently increasing his peril. This must 1 >e s< », for the inability to safety retreat is one of the elements of fact which enters into and creates the necessity to kill. Carter v. State, v i' Ala, 13. If there be a safe mode of successful retreat, there can be no necessity to kill unless the appearances surrounding the defendant reasonably indicate the contrary. Webster v. Com. 5 Cush. 295, .52 Am. Dec. 711. The rule as to the onus of proof on this point is stated in accordance with the above view in Cleveland v. State, 86 Ala. 2, which is of later authority than Brown v. State, 83 Ala. 33 where the contrary rule seems to be asserted. We believe the doctrine of Cleveland v. State to be correct, and adhere to it. Lewis v. Stati , 88 Ala. 11. The burden was on the state, however, to show that the de- fendants were in fault in bringing on, or provoking the difficulty, — not on the defendants to prove that they did not provoke it. Brown v. State, supra; McDaniel v. State, 76 Ala. 1. § 365. Prool of Lying in Wait and Violent Temper. — The accused has a right to prove that a man, then dead, had but a short time before the homicide, told him that the deceased had armed himself with a shotgun to kill him. This was not legal evidence of deceased arming himself to kill accused, but it was competent to prove that accused had so heard, and may have a 580 LAW OF EVIDENCE IN CRIMINAL CASES. right so to believe; and to that extent and for that purpose, it wasi admissible. Carico v. Com. 7 Bush, 124-. The opinion in the case last cited announces a rule of conduct, which if generally observed, would ultimately result in utter prostration of criminal justice stripped of its verbiage. This ghastly proposition may be paraphrased as follows: It is argued that the deceased made violent threats against the life of defend- ant long before, and up to a short period of the killing, and that these threats coming to a knowledge of defendant, he had a right to hill the deceased on sight. — Let the murderer show communica- tion to him of statements made by the victim, that would lead him to apprehend attempts against his life, and such evidence will jus- tify an acquittal ! Judge Caruthers, in commenting upon this edifying propo- sition, says: '"We have had one case before us in the last few years, in which the hroad proposition stated in the first of the above extract, was charged as the law. But for this, and the indi- cation that it lias obtained to some limited extent in the legal profession, it would scarcely lie deemed necessary to notice it. There is no authority for such a position. It would be monstrous. ~No court should for a moment entertain or countenance it. The criminal code of no country ever has, nor, as we presume, ever will, give place to so bloody a principle." "The threats of even a desperate man, do not, and ought not, to authorize the person threatened to take his life; nor does any demonstration of hostility short of a manifest attempt to commit a felony, justify a measure so extreme. But when one's life has hern repeatedly threatened by such an enemy, when an actual attempt has been made to assassinate him, and when, after all this, members of his family have been informed by his assailant that he is to he killed on sight, we hold that he may lawfully arm himself to resist the threatened attack. He may leave his home for the transaction of his legitimate business, or for any lawful and proper purpose; and if, on such an occasion, he casually meets his enemy, having reason to believe him to be armed and ready to execute his murderous intentions, and he does believe, and from the threat.-, the previous assault, the character of the man, and the circumstances attending the meeting, he has the right to believe, that the presence of his adversary puts his life in imminent peril, and that he can secure his personal safety in no other way than EVIDENCE OF SELF-DEFENSE. 587 to kill him, lie is obliged to wait until he is actually assailed. He may not hunt his enemy and shoot him down like a wild beast; nor has he the right to bring about an unnecessary meeting in order to have a pretext to slay him; but neither reason nor the law demands that he shall give up his business and 'abandon society to avoid such meeting.' " Upon the trial of an indictment for murder in the first degree, where the homicide is proved and the evidence discloses no cir- cumstances indicating that it was committed under the influence of provocation at the time, or sudden anger, but it appears the act was done with premeditation, and deliberation, evidence that the prisoner had an irascible temper, or was subject to fits of passion from slight causes is incompetent. So also evidence is incompetent that the conduct of the prisoner for a period prior to the homicide was characterized by eccentric- ities and peculiarities* causing criticism with reference to his men- tal capacity, where the evidence is not offered for the purpose of proving insanity, but solely as bearing upon the question of intent, deliberation and premeditation. Sindram v. People, 88 K. Y. 196; Whart. & S. Medical Jurisprudence, §§ 307, 692. After evidence has been given tending to show that a homicide was committed in self-defense, defendant can fol!< >w it by proof of general reputation of quarrelsomeness and violence of the deceased, but cannot give in evidence specific acts of deceased of violence towards third persons or of cruelty to domestic animals. People v. Druse, 5 X. Y. Grim. Rep. 10. The question of the admissibility of the evidence of the general character of the deceased, is one of great doubt. The question first came up before the New York court of appeals in People v. Lavih, 2 Keyes, 371. The prisoner in that case had been convicted of the murder of his wife. The defense seems to have been that the murder was ■committed in self-defense. The particular violence alleged against the deceased was that she threw the cover of an iron pot at her husband. The general term reversed the conviction. Evidence •of the general character of accused, was in that case rejected, and the general term probably gave such refusal as a reason for the reversal of the conviction, in the court of appeals, Judge Davies, in an elaborate opinion, held the rejection of the evidence light, but the judgment of reversal was affirmed by a majority of the court on different grounds. 588 LAW OK EVIDENCE IN CK1M1NAL CASES. In Eggler v. People, 56 N. Y. 042, there was also a conviction for murder. In this case, at the trial, proof of the general char- acter of the deceased for violence was received. The prisoner offered to show specilic acts of violence in addition, which offer was rejected, and the court of appeals held the rejection right. In Blake v. People, 73 N. Y. 586, also a case of murder, the prisoner, by the cross-examination of one of the witnesses for the people, sought to prove that the deceased was a quarrelsome and dangerous man. The court refused to receive the testimony at that time.' It was held by the court of appeals that the court committed no error in rejecting the evidence in that way; "it being the introduction of a new subject as matter of defense, it. was simply a question as to the order of proof, which was in the discretion of the court." While thus, it will be seen, that is no direct decision upon the question, the weight of authorities seem to call for the admission of the testimony ia this case. In Peo- ple v. Lamb, 2 Keyes, 371, Judge Davies recognizes an exception to the general rule that the character of the deceased is not a question to be raised upon trials for murder. There is no right given to kill any man because of his character. When, however,, the character of the deceased is a material part to be considered in determining the guilt of the accused, it is to be received like other facts; and if such evidence is rejected improperly, then it furnishes a case where all the evidence was not before the jury, and an improper rejection of evidence is ground for reversal. People v. Stokes, 53 N. Y. 164. The prisoner has the right to have all competent evidence in his favor considered, and its rejec- tion cannot be overlooked. In People v. Lamb, supra, Judge Davies classes among the exceptions to the general rule that the character of deceased is not a subject of inquiry, cases where the. assault was first commenced by deceased, and the claim of the prisoner is that the killing was in self-defense. It may be stated as the general rule sustained by several recent, decisions and founded on manifest justice, that in trials for homi- cide or in cases of aggravated assault, for the accused to show the hectoring disposition of the deceased, his tendency to brawls, his' great muscular strength, and his violent demeanor, especially when under the influence of liquor. It must further appear that these characteristics were known to the accused at the time of the affray, such evidence being the case EVIDENCE OF SELF-DEFENSE. 589 it is an important circumstance from which the jury may deter- mine the nature of the assault, and the course of treatment the accused had reason to expect from his assailant. Stale v. Collin*, 32 Iowa, 36; State v. Keene, 50 Mo. 357; Surd v. People, 25 Mich. 405. § 366. Vacillation in the Authorities. — A critical examina- tion of the reports will disclose great vacillation as to the admissi- bility of this species of evidence. The question is one of great importance, and of constantly recurring interest in criminal pro- ceedings. The supreme court of Missouri, through Wagner, J., who wrote for reversal, has influenced this phase of our subject by a very able opinion, which will illustrate the tendency of the American judiciary on this subject. I subjoin the opinion entire. § 367. Pertinent Illustration of a Missouri Case. — "The defendant was indicted for killing one Evans. It seems that the defendant had been on terms of amity and good will with Evans till the day before the killing took place. On that day, they met at the house of a friend, together with other company, when the defendant treated Evans with friendship and civility. But Evans had ascertained that the defendant was engaged to be married to a niece of his wife, and was greatly enraged about it, and instead of returning the kind treatment of the defendant, he violently assaulted him with a pistol and knife, and swore that he would kill him, nothing but his blood would satisfy him. "Through the intercession of friends, he was kept from carrying out his purpose; but the defendant, in order to save himself from violence and death, was obliged to make his escape from a back door. After this occurrence, Evans renewed his threats — declared that he would make no compromise in reference to the matter — that he would kill defendant on sight, if it was the last act of his life. These threats were communicated to the defendant the same evening. " It further appears that on the morning of the occurrence above referred to, Evans hallooed to the defendant, saying to him that he was a 'damned cowardly son of a bitch, and that if he would come up there he would thrash hell out of him, and that he intended to kill him if he married his niece.' The only answer defendant made to his abuse, was to ask Evans what he wanted to kill him for. On his arrival at home, defendant went to his stable to put his horse up, and whilst he was still at his stable, 590 LAW OF EVIDENCE IN CRIMINAL CASES. Evans rode up. Evans went into a store across the street from the stable. Defendant wanted to go into the store, but he was warned not to do so, as he would be in danger of his life if he met Evans. Defendant then stayed in the stable, and sent friends to have an interview with Evans, for the purpose of trying to arrange the difficulty. But Evans was obdurate; he would abate nothing of his hatred and his desire for blood, and the life of defendant only would satisfy him. Evans then came out on the street, and was in fierce altercation with the persons around him, when the defendant fired the shot from which he afterward died. "At the trial, the court excluded all evidence of what occurred on the day previous to the killing, and the threats made by the deceased in reference to his intention to kill the defendant. In this, the court unquestionably erred. This whole transaction, and all the matters connected with the difficulty, are so nearly allied that it is impossible to separate them. From the inception to the fatal consummation, less than twenty-four hours intervened. The threats continued down, uninterruptedly, and were all nearly coeval with the killing, and they were all brought home to the knowledge of the party who did the slaying. They constituted the chain of one continued hostile series of facts by the deceased, down to the time he was shot. That they had created a dread in the breast of the defendant, that he was in danger of losing his life, there can be no doubt, that the evidence was admissible to show the reasonableness of his fears." State v. Sloan, 47 Mo. 604. § 368. Yiews of the Virginia Court. — There are compara- tively few reported cases that contain such abundant dicta upon this subject of threats or antecedent grudge, as a well considered case decided by the supreme court of appeals of Virginia in 1872. The decision was by a divided court, which will the better indi- cate the obscurity with which this subject is still shrouded. The importance of the topic, and the discord in the rulings, induce an extended quotation from the opinion in what is now well recog- nized as a celebrated criminal case. Read v. Com, 22 Graft. 024. "Words alone, however insulting or contemptuous, are never a suf- ficient provocation to have that effect, at least where a deadly weapon is used; so tender is the law of human life, and so much opposed is it to the use of such a weapon. " It is not only necessary in such a case and for such an effect that a reasonable provocation should be received, but it is also EVIDENCE OF SELF-DEFENSE. 591 necessary that the provocation should have the effect of produc- ing sudden passion under the influence of which alone the offense is committed. It must be a sudden transport of passion, which the law calls furor orevis. If a person on receiving the gravest provocation is unmoved by passion, but wantonly and wilfully and wickedly kills his adversary otherwise than in self-defense, he is guilty of murder. The law mitigates the offense to manslaughter only as an indulgence to the infirmity of human nature. Provo- cation without passion, or passion without provocation, will not do; both must concur to reduce the offense to the grade of man- slaughter. "Again, if an unlawful homicide be committed in pursuance of a preconceived purpose, the offense will be murder, no matter how great a sudden provocation may have immediately preceded the act. The provocation may have been brought about or sought by the perpetrator, or he may have availed himself of it to give color of justification or excuse to his act, done in execution of his deliberate purpose. It is true that where there is both an old grudge and fresh provocation, the jury ought rather to presume, in the absence of sufficient evidence to the contrary, that the homicide was induced by the fresh provocation, and not by the old grudge. But then this is a matter for the jury on all the evi- dence before it, and there is generally sufficient evidence in every such case to satisfy the jury beyond a doubt which one of these two concurring motives induced the act. "But, in this case, there was abundant evidence of an antecedent grudge and previous threats, and preparation for the commission of the act. Merriman has lost a twenty-dollar note, and suspected the prisoner of stealing it. The prisoner asked for time to show his innocence, and rejjeated the request from time to time, which Merriman as often granted him. At length the prisoner having given him an account which was not satisfactory, he charged the prisoner with the theft. Witness then said that Merriman must take back the charge or he would shoot him. Merriman replied, " Shoot then, if you choose, I will not take it back." This threat of the prisoner and this reply of Merriman were repeated as many as five different times. Now, although both the prisoner and Merriman drank freely on the day of the commission of the act, and were under the influence of spirits at that time, yet it does not appear, and it is not probable, that they were under 592 LAW OF EVIDENCE IN CRIMINAL CASES. such influence on the former occasion when the threat was made. The prisoner prepared himself with a deadly weapon, which he carried secretly about his person. It does not appear that he had been in the habit of carrying such a weapon, and as it is unlawful to do so habitually, the jury might well have presumed that he provided himself with the weapon for the special purpose of exe- cuting his threat, unless he could intimidate Merriman to retract the charge he had made against him. These acts, connected with the actual shooting which followed, and the circumstances under which it was done, strongly tend to show that the act was delib- erately done in execution of his prior threats that he would do precisely what he did do." The inaccurate dictum of the minority report in this ably reasoned case had the effect for a time of weakening its influence as a rule of criminal law but time has failed to impair the logic of its conclusions and it has met with the suggestive approval of " silent acquiescence." § 369. What is Reasonable Cooling Time. — As already inti- mated, the question of the reasonableness of adequacy of the provocation must depend upon the facts of each particular case. That can, with no propriety, be called a rule (or a question) of law which must vary with and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. Ev. (Am. ed. I860) 676-680. The law cannot, with justice, assume, by the light of past decisions, to catalogue all the various facts and combinations of fact which shall be held to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances, and there is no reason to hope for greater uniformity in future. Provoca- tions will be given without reference to any previous model, and the passions they excite will not consult the precedents. The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of the case. In Rex v. Hay ward, 6 Car. & P. 157, and Rex v. Lynch, 5 Car. & P. 324, this question of reasonable cooling time was ex- EVIDENCE OF SELF-DEFENSE. 593 pressly held to be a question of fact for the jury. And see Whart. Am. Crim. L. (4th ed.) § 990, and cases cited. I am aware there are many cases in which it has been held a question •of law; but I can see no principle on which such a rule can rest. Directly the opposite is laid down as the rule in 1 Russell, Crimes, pp. 524, 525, where it is said, "whether the blood has had time to cool or not is a question for the court and not for the jury." And in 2 Starkie, Evidence, pp. 947, 948, in speaking of the circumstances of "necessity, accident or infirmity," which justify, excuse or extenuate the act, the author uses the following language : " It is for the jury to pronounce upon the truth of such facts, and it is for the court to decide whether in point of law the fact of killing is justified, excused or alleviated by these facts." There is no evidence of any time for passion to cool. Leighton v. People, 8S K Y. 117; Roscoe, ( 'rim. Ev. 6S5. The prisoner may, in certain instances, extenuate his crime and reduce it from murder to manslaughter, by proof that the act was committed during the transport of passion and resent- ment, excited by sudden provocation, which for the time subdued his reason. For such evidence repels the inference of that delib- erate malice and malignity of heart, which is essential to the offense (of murder). What degree of provocation and under what circumstances, heat of blood, the furor brevis will or will not avail the defendant, is usually a question of law, arising upon the special facts of the case. Roscoe, Crim. Ev. 964. It is the nature of the provocation and not the mere effect of it on the mind of the prisoner, which the law regards, and the sufficiency of the provocation to extenuate the prisoner's guilt, is a question of law. If one killed another immediately upon a grave and serious provocation, likely to excite great passion, the offense will amount to no more than manslaughter, although the defendant used a deadly weapon. Roscoe, Crim. Ev. 965. Where, after mutual combat, a question arises whether there has been time for excited passions to subside, the question always takes this form; whether then' had been sufficient time to cool, and not whether, in point of fact, the defendant did remain in a state of anger. People v. Sullivan, 7 N. Y. 400. The rationale of this entire matter would seem to lie within a very small com- pass. 38 594 LAW OF EVIDENCE IN CRIMINAL CASES. In Ferguson v. State, 49 Ind. 33, 35, Pettit, J., said : "All elementary authority and adjudicated cases agree that time must be given for the passion of the injured person to become calm; and many authorities say that the question ought to be submitted to the jury as to whether the passion of the injured person had been actually quieted. If we suspend our discussion of the prin- ciples which ought to be applied to the question, and pass to the consideration of the decided cases as found in other jurisdictions, we shall find the ruling of the court vindicated, not simply by the preponderance of judicial authority, but by absolute unanimity." § 370. Extended Collation of Authority. — Where the evi- dence raises a doubt as to who was the aggressor at the time of the homicide — the deceased or the accused, and it further appears that the threats had not been communicated to the defendant, evidence of their nature and character is admissible. Roberts v State, 68 Ala. 156; Harris v. State, 34 Ark. 469; Palmare v State, 29 Ark. 248; People v. Trains, 56 Cal. 251; People v Alwtree, 55 Cal. 263; People v. Scoggins, 37 Cal. 676; White v Territory, 3 Wash. Ter. 397; West v. State, 2 Tex. App. 460 Powell v. State, 19 Ala. 577; Logan v. State, 17 Tex. App. 50; Pitman v. State, 22 Ark. 354; Wilson v. State, 18 Tex. App. 576; Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Hughey v. State, 47 Ala. 97; Davidson v. People, 4 Colo. 145; Howard v. State, 23 Tex. App. 265; Coker v. State, 20 Ark. 53; Atkins v. State, 16 Ark. 568; Green v. State, 69 Ala. 6; Lingo v. State, 29 Ga. 470; Wiggins v. Utah, 93 IT. S. 465, 23 L. ed. 941; Pridgen v. State, 31 Tex. 420; Fitzhugh v. "State, 13 Lea, 258; People v. Campbell, 59 Cal. 243, 43 Am. Eep. 257; Lleener v. State, 18 Ga. 194, 63 Am. Dec. 269; West v. State, 18 Tex. App. 640; Allen v. Stale, 17 Tex. App. 637; May field v. State, 110 Ind. 591; State v. Brown, 22 Kan. 222; Hart v. Com. 85 Ky. 77; State v. McNally, 87 Mo. 644; State v. Rider, 90 Mo. 54; Holler v. State, 37 Ind. 57, 10 Am. Eep. 74; State v. Jackson, 37 La. Ann. 896; Little v. State, 6 Baxt. 491; State v. Turpin, 77 K C. 473; State v. Janvier, 37 La. Ann. 645; JLarris v. State, 47 Miss. 318; Edwards v. State, 47 Miss. 581; State v. Labuzan, 37 La. Ann. 489; State v. Dumphey, 4 Minn. 438; State v. Ryan, 30 La. Ann. 1176; Newcoml v. State, 37 Miss. 3S3; B infield v. State, 15 Neb. 4^4; State v. Fisher, 33 La. Ann. 1344; Pukes v. £tate, 11 Ind. 557, 71 Am. Dec. 370; State v. Stewart, 9 Nev. 120; £tate v. EVIDENCE OF SELF-DEFENSE. 595 Ferguson, 9 Nev. 106; State v. Hall, 9 Nev. 58; State v. Williams, 40 La. Ann. 168; State v. Downs, 91 Mo. 19; Turpln v. State, 55 Md. 462; Thomason v. Territory, 4 New Mex. 150. In reviewing these decisions it is surprising to find that a rule of conduct so satisfactory and apparently so obvious should ever have been a subject of judicial controversy. The principle received its first expansion in the reports of Chief Justice Hobart in the time of James I., while the conclusions reached by that distinguished peer were reaffirmed by Lord Chancellor Notting- ham and thus given an abiding place in the English common law. See also the reports of Lord Chief Baron Comyns on the game subject. For the English law of self-defense, see Stephen's Digest of Criminal Law, art. 200, where the law in England is given, to- gether with criticism of some well known cases from Hale and Hawkins. This article is too long to be here given in full, but is worthy of attentive reading. CHAPTER XLV. EVIDENCE OF CHARACTER. § 371. Statement of the Present Rule. 372. Record Evidence of Bad Character how Rebutted. 373. Wliat Evidence of Character may Show. 374. Always Available when Evidence is Circumstantial. 375. The Cases Examined. 376. WJien Evidence is Confined to General Reputation. 377. T7ie English Rule Examined. 378. When Evidence of Good Character is Unavailing. 379. The Rule Restated. 380. When Negative Evidence of Character is Competent. § 371. Statement of the Present Rule. — In regard to the admissibility of evidence of character, there has been some fluctu- ation of opinion. The better rule now seems to be, that in all cases of a direct prosecution for a crime, evidence of the general good character of the accused is admissible, as in those cases where the guilty knowledge or criminal intention is of the essence of the offense. But where a penalty is claimed for the mere act, irrespective of the intention, evidence of character is not admissi- ble. No evidence of the general character of the person on whom the offense was committed, is, in general, admissible, the charac- ter being no part of the res gestae. An exception to this rule is, however, made in prosecutions for rape. And in cases of homi- cide, it is admissible to show, in his favor, expressions of good will and acts of kindness on the part of the prisoner towards the deceased. Haines, Justices of Peace, p. 68S, citing Greenl. Ev. §§ 26, 27. No mutter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities that a person of such character would be guilty of the offense charged, that the other evidence in the case is false, or the witnesses mistaken. Evidence of this nature is not a mere make-weight thrown into a case to assist in the production of a result that would happen at 596 EVIDENCE OF CHARACTER. 597 all events, but it is positive evidence, and may of itself, by the creation of a reasonable doubt, produce an acquittal. Weston v. Com. Ill Pa. 251. And it must be considered that, in criminal trials, it is always proper to prove the previous good character of the accused, in order to show that it was unlikely that such a per- son would have perpetrated the crime, and this notwithstanding his good character is presumed until it is impeached. His charac- ter is attacked by the charge against him. But this rule is ele- mentary. HardtJce v. State, 67 Wis. 552; Whart. Crim. Ev. § 58. But, in weighing evidence of good character, a jury should be careful to remember that all men at some time in their lives have been men of good character, and that men of previous good char- acter have been known to commit some of the gravest crimes known to the law. However, the law, in its humanity, says that evidence is to be received and considered by the jury, and given all the weight that they think it justly and properly entitled to, and no more. It is not competent for the government to give in proof the bad character of the defendant, unless he first opens that line of inquiry by evidence of good character. Com. v. Webster, 5 Gush. 325, 52 Am. Dec. 711; State v. Lavage, 57 N. H. 245, 24 Am. Kep. 69. § 372. Record Evidence of Bad Character how Rebutted. — Among the stereotyped questions propounded to a witness with a view to impair his credit is this, "Were you ever arrested and convicted of such a crime ?" (naming the crime). In the vast majority of instances the interlocutor has previous knowledge of the facts and the reply elicited is almost invariably in the affirma- tive. This naturally creates unfavorable presumptions. It is a matter of no small importance to the criminal bar of this country to know that relief may be afforded in part at least from these unfavorable impressions by eliciting upon the re-direct examina- tion testimony from the witness declaratory of his innocence of the crime charged and this although the record of his conviction be produced. Such a record is not conclusive of a person's guilt (Sims v. Sims, 75 N. Y. 467), and the witness has the right to show his innocence and relieve himself from the stigma of convic- tion. Wolkqfv. Teft, 35 N. Y. S. R. 93. The record of the judgment or conviction may under some cir- cumstances he received in civil actions as prima facie evidence of 59S LAW OF EVIDENCE IN CRIMINAL CASES. the fact of guilt, but never as conclusive or as estopping the party convicted from proving his innocence. One strong reason assigned for not holding such records con- clusive is the absence of any mutuality in the estoppel. The contusion which is sometimes perceptible in the cases on this sub- ject, results from losing sight of the distinction between the pur- poses for which such judgments are offered, whether as evidence of the fact of conviction and judgment, or of the fact of the guilt of the party. Such a judgment is conclusive for the purpose of establishing the fact that it has been rendered, and all the legal consequences which tiow from it. Therefore when by law the fact of conviction disqualifies a wit- ness, the record, when introduced for that purpose, is unimpeach- able and the evidence is for the court and not the jury. When offered for the purpose of establishing the fact of guilt there is a great weight of authority for the proposition that it is not admis- sible in a civil case, but it is well settled that if admitted it is only prima facie evidence. Sims v. Sims, 75 X. Y. 466. § 373. What Evidence of Character may Show. — Such evi- dence might create a reasonable doubt in favor of the accused. Armor v. State, 63 Ala. 173; Carson v. State, 50 Ala. 134; Fields v. State, 47 Ala. 003, 11 Am. Rep. 771; Hall v. State, 40 Ala. 698; Jupits v. People, 34 111. 516; People v. Ashe, 44 Cal. 288; People v. Fenwick, 45 Cal. 287; People v. Raina, 45 Cal. 292; State v. Gustafson, 50 Iowa, 194; State v. Lindley, 51 Iowa, 343, 33 Am. Rep. 139; State v. Donovan, 61 Iowa, 278; State v. Mc- Murphy, .")!' Mil 251; People v. Lamb, 2 Keyes, 360; Stover v. People, 56 K. Y. 315; State v. Henry, 50 K C. 65; Heine v. ( 'om. 91 Pa. 145; Lee v. State, 2 Tex. App. 338; State v. Daley, 53 Vt. 442, 38 Am. Rep. 694. Or it may be produced to rebut the pre- sumption arising from facts and circumstances. State v. Ford, 3 Strobh. L. 517, note} State v. Rodman, 62 Iowa, 456. But the failure of the accused to call witnesses as to his charac- ter raises no presumption of bad character. State v. Dockstader, 42 Iowa, 436; Com. v. Webster, 5 Gush. 295, 52 Am. Dec. 711; Harrington v. State, 19 Ohio St. 264; Ormsby v. People, 53 N. Y. 472; People v. Bodine, 1 Denio, 282; State v. O'Neal, 29 K C. 251. Where evidence of good character has been interposed, it may be rebutted by evidence of bad character deduced from his own EVIDENCE OF CHARACTER. 599 admissions, but not by proof of particular acts. Smith v. State, 47 Ala. 540; McCarty v. People, 51 111. 231, 99 Am. Dec. 542; Gordon v. State, 3 Iowa, 410; State v. Williams, 77 Mo. 310. The principle upon which good character may be proved is, that it affords a presumption against the commission of crime. This presumption arises from the improbability, as a general rule, that a person who has uniformly pursued an honest and upright course of conduct will deflect from it and perform acts inconsist- ent with such a course. Such a person may be overcome by temptation and fall into crime, but the general rule is fortunately •otherwise. The influence of this presumption from character will necessarily vary according to the varying circumstances of differ- ent cases. It must be slight when the accusation of crime is sup- ported by the positive testimony of unimpeached witnesses; and it will seldom avail to control the mind in cases where the testi- mony, though circumstantial, is reliable, strong and clear. But in cases where the other evidence in the case is nearly balanced, but slightly preponderating against the defendant, the presumption from proof of good character should determine the result and work an acquittal. Neither good nor bad character can be proved by specific acts or charges. Smith v. State, McCarty v. People, and Gordon v. State, supra J Engleman v. State, 2 Iiid. 91; People v. White, 14 Wend. 111. Where a person is charged with a crime, the failure to call wit- nesses to prove his general good character raises no presumption against it. State v. Kabrieh, 39 Iowa, 277; State v. O'Neal, 29 K C. 251; People v. Bodine, 1 Denio, 282; People v. White, 24 Wend. 52(>; State v. Dockstader, 42 Iowa, 436. § 371. Always Available when Evidence is Circumstantial. — Good character always is in favor of the prisoner against whom the proof is circumstantial. When there is direct evidence of the commission of a crime by a prisoner, then good character goes for naught; when the proof is circumstantial, proof of good character is a matter to be taken into consideration, and is to have a very favorable influence upon the mind of the jury. Good character of the accused is to be considered by the jury upon the question of the credibility of direct evidence of his guilt, the same as upon proof of circumstances tending to show it, or the inferences to be drawn from such circumstances. Remsen v. People, 43 N. Y. 6; Stover v. People, 50 K Y. 315. GOO LAW OF EVIDENCE IN CRIMINAL CASES. Indeed, in a close or doubtful case, great weight should be attached to evidence of good character. People v. Lamb, 2 Keyes, 360; 2 Abb. Pr. .N. S. 148; Ccmcemi v. People, 16 N. Y. 501. The weight of modern authority seems to be overwhelmingly in favor of the rule that proof of good character constitutes an ingredient to be considered by the jury, in all criminal cases, without reference to the apparently conclusive or inconclusive character of the other evidence. See State v. Henry, 50 N. CL 65; Rex v. Stannard, 7 Car. & P. 673; Kistler v. State, 54 Ind. 400; 1 Whart. Am. Crim. L. (7th ed.) 644. § 375. The Cases Examined. — In Com. v. Hardy, 2 Mass. 303, it was said that " in doubtful cases, a good general character, clearly established, ought to have weight with a jury, but it ought not to prevail against the positive testimony of credible witnesses," and in Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, a distinc- tion was taken between crimes "of great and atrocious criminality" and "smaller offenses," and it w r as said that "against facts strongly proved good character cannot avail," and that in the smaller offenses, such as "pilfering and stealing, where the evidence is doubtful, . . . proof of character may be given with good effect." If evidence of reputation is admissible at all, its weight should be left to be determined by the jury in connection with all the other evidence in the case. It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character. " Evidence of good character is always admissible for the de- fendant in a criminal case; it is to be weighed and considered in connection with all the other evidence in the cause, — it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. The rule itself is not merely merciful. It is both reasonable and just. There may be cases in which, owing to the peculiar circumstances in which a man is- placed, evidence of good character may be all he can offer in an- swer to a charge of crime. Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril ? " Paxson, Ch. J., in Com. v. CUary, 8 L. R. A. 301, 135 Pa. 64. EVIDENCE OF CHARACTER. 601 In Stephens v. People, 4 Park. Crim. Rep. 396, and Lowenbery v. People, 5 Park. Crim. Rep. 414, the jury was instructed that good character might raise the doubt entitling the prisoner to an acquittal, and the weight to be given thereto was for the jury in each case. The defendant having been found guilty in each case, no point was raised, as we understand, in the appellate court as to the validity of the instructions. The doctrine announced in Com. v. Webster, supra, has been disapproved and condemned in Cancemi v. People, 16 N. Y. 501; People v. Ashe, 44 Cal. 288; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Harrington, v. State, 19 Ohio St. 264. The rule of these cases is sustained by State v. Henry, 50 N. C. 65; Jupitz v. People, 34 111. 516; State v. Me Murphy, 52 Mo. 251; United States v. Whitaker, 6 McLean, 342; Com. v. Carey, 2 Brewst. 404; Epps v. State, 19 Ga. 102; Felix v. State, 18 Ala. 720; Car- son v. State, 50 Ala. 134; Ryan v. People, 19 Abb. Pr. 232. In Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, it is in sub- stance said that good character is no defense, and the better course is to submit the question as to its effect to the jury; but it would be going too far to lay it down as a fixed rule that it is sufficient to raise a reasonable doubt. This question was somewhat considered in State v. Turner, 19 Iowa, 144. The opinion is exceedingly brief, consisting of but a few lines so far as this point is concerned, and while it may not be clear and certain, yet we think the only rule established is "that in all cases a good character is to be considered." Of course, if the respondent sees fit to put his character in issue by offering evidence tending to show that it is good, it is then permitted to the prosecution to rebut this testimony by showing that it is bad, but the weight of authority is to the effect that this must be done by evidence, not of particular facts, but of reputation. State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69. Where a party undertakes to show that his reputation is good, or that the reputation of the other party or a witness is bad, he cannot put in evidence of particular facts to prove the general reputation he is endeavoring to establish. And to meet evidence of general reputation the opposing party may put in evidence to the contrary of a like general character. But he cannot prove particular facts for the reason that a particular fact does not necessarily establish a general reputation or fairly meet the issue 602 LAW OF EVIDENCE IN CRIMINAL CASES. presented, and may also raise collateral issues; and for the further reason that while a party is presumed always to be ready to de- fend his general reputation, he is not expected to be prepared to meet a distinct and specific charge. Peterson v. Morgan, 116 Mass. 350. In a case heard before all the judges in England, it was held that,- if evidence of good character is given in behalf of the pris- oner, evidence of bad character may be given in reply; but in either case the evidence must be confined to the prisoner's general reputation and the individual opinion of the witnesses as to his disposition, founded on his own experience and observation, is inadmissible. Chief Justice Cockburn, in delivering the opinion of the court, says : " The only way of getting at it (his character) is by giving evidence of his general character founded on his general reputation in the neighborhood in which he lives." " It is quite clear that, as the law now stands, the prisoner cannot give evidence of particular facts, although one fact would weigh more than the opinion of all his friends and neighbors. So, too, evi- dence of antecedent bad conduct w T ould form equally good ground for inferring the prisoner's guilt, yet it is quite clear evidence of that kind is inadmissible." Again, in speaking of the limits of rebutting evidence, where the prisoner puts in evidence of good character, he says : "I think that that evidence must be of the same character and confined within the same limits, — that as a prisoner he can only give evidence of a general good character, so the evidence called to rebut it must be evidence of the same general description, showing that the evidence which has been given in favor of the prisoner is not true, but that the man's general reputation is bad." The judges who dissented admitted that evi- dence of particular facts was admissible, but were of opinion that the testimony of a witness founded on his own experience and observation went to show disposition and was therefore admissible on the question of character. Chief Justice Erie said : " I agree that evidence of individual facts is to be excluded; but whether the answer given by the witness in this case is in the nature of an individual fact or not I do not stop to inquire, because a question of very general importance has been raised, and, with reference to that question, I am of opinion that the answer, understood as evidence of disposition, is admissible." Reg. v. Rototon, Leigh 214; Conkey v. People, 1 Abb. App. Dec. US; Woods v. People, 55 N. V. 515, 11 Am. Rep. 309; State v. Forshner, 43 K II. 89, 80 Am. Dec. 132, and cases infra. But they disagree as to whether particular acts of con- nection with other men can be proved. In many states the right to prove such acts is denied, either by her own examination or by the 606 LAW OF EVIDENCE IN CRIMINAL CASES. evidence of witnesses {Com. v. Harris, 131 Mass. 336; State v. Forshnei\ supra; McComte v. State, 8 Ohio St. 643; Richie v. State, 58 Ind. 355; Statt v. White, 35 Mo. 500; State v. Turner, 1 Houst. Crim. Rep. 76) but in some states such proof is compe- tent (State v. Reed, 39 Yt. 117, 91 Am. Dec. 337, permitting it by cross-examination; Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593; holding both modes of proof allowable, and so People v. Benson, 6 Cal. 221, 65 Am. Dec. 506; Strang v. People, 24 Mich. 1). In New York the decisions are conflicting ( Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309) but in a civil action for assault with intent to ravish, such evidence has been received in mitiga- tion of damages. Gulerette v. McKinley, 27 Hun, 320; Watry v. F< rher, 18 Wis. 501, SQ Am. Dec. 789. "In actions of seduction, the woman's bad character for chastity may be shown (see art. 57, note, ante), but she cannot be cross- examined as to acts of intercourse with other men than the seducer {Hoffman v. Kemerer, 44 Pa. 453; Boyle v. Jessup, 29' 111. 460; Smith v. Tar y an, 69 Ind. 445, 35 Am. Rep. 232, but see Wandell v. Edwards, 25 Hun, 498; South Bend v. Hardy, 98 Ind. 577) unless a child is born and its paternity is in question. See Smith v. Yaryan, supra. But some cases hold that such acts may be proved by the testimony of the men themselves." 2 Greenl. Ev. § 577; Ford v. Jones, 62 Barb. 484; White v. Murtland, 71111. 250, 22 Am. Rep. 100. In a prosecution for rape, the character of the woman for chastity is involved in the issue, and may be impeached by gen- eral evidence of her reputation, but particular instances of criminal connection with other persons than the defendant are in- admissible. Com. v. Regan, 105 Mass. 593; Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325. § 378. When Evidence of Good Character is Unavailing. — Where, however, the act charged in the indictment is malum in se, and the evidence clearly sustains it, and there is an entire absence of justifying circumstances or extenuating facts, proof of good character is wholly incompetent and irrelevant, as it has no tendency to either prove or disprove any issue raised by the in- dictment and evidence of this nature, if offered, should be wholly disregarded. Coleman v. State, 59 Miss. 484; Com. v. Hardy, 2 Mass. 317; State v. McMurphy, 52 Mo. 251; McDaniel v. State, 8 Smedes & M. 401; People v. Bell, 49 Cal. 488; Wesley v. State, EVIDENCE OF CHAKACTEK. GOT 37 Miss. 331, 75 Am. Dec. 62; State v. Northup, 48 Iowa, 583, 30 Am. Rep. 408; United States v. Smith, 2 Bond, 323; Bennett v. State, 8 Humph. 118; United States v. Roudi nbush, Baldw. 514; Hex v. Davison, 31 How. St. Tr. 217; United States v. Free- man, 4 Mason, 510; People v. Kirby, 1 Wheel. Crim. Cas. 64; P«opfe v. Vane, 12 Wend. 82; State v. Pearee, 15 Nev. 191; aS'/V/V v. Brown (note) 3 Strobh. L. 527; $tafe v. Gleason, 1 Nev. 173; A'tate v. ITeZfe, 1 N. J. L. 628; People v. Josephs, 7 Cal. 129; People v. Cole, 4 Park. Crim. Rep. 35; People v. Roberts, 6 Cal. 214; Peopfe v. Mitigate, 5 Cal. 127. As regards the instructions of the court with reference to char- acter, the charge should be so phrased as to clearly import to the jury that if upon the whole evidence that of good character among the rest, the jury regard the crime conclusively proven to their satisfaction beyond a reasonable doubt, then the good character furnishes no defense and can be of no avail to defendant. People v. Sweeney, 133 N. Y. 609. § 379. The Rule Restated. — The true rule is, that such evi- dence must, in any event, be considered by the jury, together with the other facts and circumstances of the case; it is not merely of value in doubtful cases, but will of itself, sometimes, create a doubt where none could exist without it, and if good character be- pro ved to the satisfaction of the jury, it should turn the scale in favor of the defendant, even in cases where, without it, the whole' evidence would slightly preponderate against him. Stephens v» People, 4 Park. Crim. Rep. 396; Cancemi v. People, 16 N. Y. 501; 2 Russell, Crimes, 785, 786. And Jewett, J., says in People v. Gay, 7 N. Y. 381, " that in general a party will not be permitted to give evidence of his wit- ness' good character until it has been attacked on the other side." A party is not allowed to sustain the character or chastity of his witness in advance of any attack. People v. Hulse, 3 Hill, 309; People v. Gay, supra; Russell v. Coffin, 8 Pick. 143; People v. Van Houter, 38 Hun, 168. Nor is evidence of specific acts of violence towards third per- sons admissible. People v. Lamb, 2 Keyes, 371; lEggler v. Peo- ple, 56 N. Y. 643; Thomas v. People, 67 N. Y. 218. Epitomizing the present rules it may bo advisable to cast them into the following propositions: 1. It is not permitted to the prosecution to attack the character 608 LAW OF EVIDENCE IN CRIMINAL CASES. of the prisoner, unless he first puts that in issue by offering evi- dence of his good character. 2. It is not permitted to show the defendant's bad character by showing particular acts. 3. It is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged. 4. It is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions. State v. Lavage, 57 N. H. 245, 24 Am. Rep. 69. In the case of Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325, the law in regard to the admissibility of evidence as to char- acter is very fully and satisfactorily discussed. The distinction that the term "character" concerns what the man is, and the term '' reputation" concerns what issaid of him, is kept plainly in view; and it is clearly shown that the only legitimate mode of proving character is by showing reputation. State v. Zapage, supra. § 380. When Negative Evidence of Character is Compe- tent. — The propriety of the rale, permitting negative evidence of good character, is gradually forcing itself upon the recognition of the courts, and there is a current and modern authority rapidly forming in support of it. Mr. Taylor, in his work on Evidence, after observing that the term "character" is not synonymous with "disposition," but simply means reputation, or the general credit which a man has obtained in public opinion, observes as follows of the practice of the English judges to this point: "Aware that 'the best character is generally that which is the least talked about,' they have found it necessary to permit witnesses to give negative evidence on the subject, and to state that 'they have never heard anything against the charac- ter of the person on whose behalf they had been called.' "Nay, some of the judges," he continues, "have gone so far as to assert that evidence in this negative form is the most cogent proof of a man's good reputation." 1 Taylor, Ev. § 350. In support of this view he cites the late case of Reg. v. Cory, 10 Cox, C. C. 23, where Cockburn, Ch. J., observes: "I am ready to admit that negative evidence to which I have referred, of a man saying 'I never heard anything against the character of the person of whose EVIDENCE OF CHARACTER. 609 character I come to speak,' should not be excluded. I think, though it is given in a negative form, it is the most cogent evi- dence of a man's good character and reputation, because a man's character does not get talked about until there is some fault to be found with him. It is the best evidence of his character, that he is not talked about at all. I think the evidence is admissible in that sense." A well considered case in direct support of this doctrine is that of State v. Lee, 22 Minn. 407, 21 Am. Kep. 7G9, where Berry, ,/., observes: "A very sensible and commendable instance of the relaxation of the old and strict rule is the reception of negative evidence of good character — as, for example, the testimony of a witness who swears that he has been acquainted with the accused for a considerable time, under such circumstances that he would be more or less likely to hear what was said about him, and has never heard any remark about his character — the fact that a per- son's character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for censure, or, in other words, that his character is good." It was held accordingly that a witness might, when a proper predi- cate of knowledge has been laid, be permitted to testify negative to one's good character by affirming that he had never heard his character discussed, or spoken of by any one." To the same effect is Gandolfo v. State, 11 Ohio St. 114, where negative evidence of a defendant's good character was allowed to be given. "Such evidence," it was said, u is often of the strongest description; as, where a character for truth is in issue, that among those acquainted with the party, it had never been questioned; and so, as to character for peace and quietness, that among those with whom the party associates, no instance has been known or heard of, in which he has been engaged in a quarrel." In State v. Nelson, 58 Iowa, 208, the same rule was recognized, and a party was allowed to testify that he had never heard any- thing against the defendant's character or reputation, the court observing that, in the absence of such a rule, "a person, who had lived so far a blameless life as to provoke but little discussion respecting his character would oftentimes be utterly unable to support his character when assailed." So in Davis v. Foster, 68 In I. 258, an instruction to the jury was held good, which asserted that, "if a man's neighbors say 39 610 LAW OF EVIDENCE IN CRIMINAL CASES. nothing whatever about him, as to his truthfulness, that fact of itself is evidence that his general reputation for truth is good." And in Davis v. Frarike, 33 Gratt. 413, a witness who had an opportunity to know another's character was allowed to testify that he never heard it called in question, Staples, J., observing: "Possibly, in many cases, the highest tribute that can be paid to the witness is that his reputation as a man of veracity is never called in question, or even made the subject of conversation in the community where he resides." In Childs v. State, 55 Ala. 28, a witness, who claimed to know the character of another witness, "but never heard his character discussed," was held competent to speak to the question of char- acter. A like principle was declared in Had jo v. Gooden, 13 Ala. 718. In Reid v. Rcid, 17 N. J. Eq. 101, much of the evidence as tc- the character of the witness was founded on opinions expressed by others after their examination, and a material portion was fur- nished by a person who made inquiries in the neighborhood of their residence for the purpose of procuring evidence in the cause. It is said: "All this evidence is clearly incompetent. No rule is better settled, or founded on clearer principles, than that which excludes all testimony touching reputation founded on opinion expressed post litem motam. Not only should the character of the witness be founded on reputation previously existing, but a. stranger sent by a party to the neighborhood of the witness, to- learn his character, will not be permitted to testify as to the result of his inquiries." A very sensible and commendable instance of the relaxation of the old and strict rule is the reception of negative evidence of good character — as for example, the testimony of a witness who swears that he has been acquainted with the accused for a consid- erable time, under such circumstances that he would be more or less likely to hear what was said about him, and he has never heard any remark about his character, — the fact that a person's character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for cen- sure, or in other words, that his character is good. Reg. v. Row- ton, 10 Cox, C. C. 25, 2 Hurd, Crim. Cas. 333; Gandolfo v. State, 11 Ohio St. 114; State v. Lee, 22 Minn. 407, 21 Am. Kep. 769. That reputation may, with justice, well be called good which EVIDENCE OF CHARACTER. 611 no slanderer has ever ventured to even as much as question. A blameless life, oftentimes, though not always, gives origin to such a reputation. But when it can be said of a man, by those well acquainted with him, that they never heard his reputation as to truth and morals discussed, denied or doubted, it is equivalent to passing upon him the highest enconium. The authorities abun- dantly establish that the person testifying need not base his means of knowledge on what is "generally said" of the person whose character is in question, but may base his knowledge of the repu- tation of such person on evidence of the negative nature above noted. Lemons v. State, 4 W. Va. 755, 6 Am. Rep. 293; Gan- dolfo v. State, supra; Cockburn, Ch. J., in Reg. v. Boioton, 1 Leigh & C, 536; State v. Grate, 68 Mo. 22; Kelly, Crim. L. § 241. See 1 Rice, CivD Evidence, p. 629. CHAPTER XLYI. EVIDENCE OF FORMER JEOPARDY OR CONVICTION. § 381. Doctrine of Autrefois Acquit and Convict Examined. 382. How Question is Determined. 383. Views of Mr. Bishop. 384. Evidence that Jury were Discharged is Equivalent to an Acquit tul. 385. Miscellaneous Authorities Examined. § 381. Doctrine of Autrefois Acquit and Convict Exam- ined. — The provision of the Constitution of the United State.-, that no person shall be twice put in jeopardy of life or limb for the same offense, is an explicit and solemn recognition of the maxim of the common law that no man shall be twice tried for the same offense; and the test by which the courts determine whether a person has been once in jeopardy, or once already tried, is whether a plea of autrefois acquit or autrefois convict can be sustained, according to the rules of the common law. People v. Goodwin, 18 Johns. 1ST; Story, Const. § 1787. There is, it must be allowed, at least a seeming inconsistency in the language of the authorities upon the question. Mr. Justice Blackstone (4 Bl. Com. 336) says that the plea of a former con- viction for the same identical crime, though no judgment was ever given or perhaps ever will be (being suspended by the bene- fit of clergy or for other causes) is a good plea in bar to an indictment. On the other hand. Sir Matthew Hale (Hale, P. C, 248) cites Vaux's Case,4: Coke, Rep. 45, as holding that autrefois convict by verdict is no plea, unless judgment be given upon the conviction. In the opinion of Chief Justice Spencer, in the case of People v. Goodwin, supra, he says, speaking of a plea of a former acquittal, that, to render it a bar, there must have been a legal acquittal by judgment upon a trial for the same offense and the verdict of a petit jury. Chitty, in his Criminal Law (vol. 1, p. 462) speaks somewhat less distinctly of a sentence or judgment. being requisite. He says, " the crime must be the same for which the defendant was bef ore convicted, and the conviction must have been lawful, on a sufficient indictment; and it he has neither 612 EVIDENCE OF FORMER JEOPARDY OK CONVICTION. 613 received sentence nor prayed the benefit of clergy, this plea is said not to be pleadable if the former indictment were invalid." There would seem to be a practical injustice, and an inconsist- ency with the meaning and spirit of the common law rule, as adopted by the constitutional provision in this country, in de- manding that a prisoner should have received sentence in all cases before he should be allowed to plead that he had been once con- victed, or had been once in jeopardy for the same offense. Rex v. Bowman, 6 Car. & P. 101; State v. Eldea, 41 Me. 165; Com. v. Roby, 12 Pick. 496. Pleas of the kind must allege that the former trial was in a court having jurisdiction of the case, and that the person and the offense are the same, and must set forth the former record, else the plea will be bad. Rex v. Wildey, 1 Maule & S. 188; 2 Rus- sell, Crimes (4th ed.) 60; Rex v. Edwards, Puss. & R. 224. Standard authorities which show that the plea of a former con- viction or acquittal must set forth the substance of the record are very numerous and decisive. Where the plea is autrefois convict, it must appear that the prisoner received sentence as required by law; or if the plea be autrefois acquit, it must appear that the court gave the order that he go without day. Roscoe, Crim. Ev. (8th ed.) 199. Defenses of the kind are often set up; and in order to avoid false pretenses, the established rule is, that the accused is required not only to show the nature of the former prosecution and the conviction or acquittal with certainty in his plea, but also to show the record or its substance to the court, by producing or vouching it at the time he pleads, for otherwise it would be in his power to delay the trial when he pleased by pleading a former conviction or acquittal in another jurisdiction; and, in order to prevent such false pretenses in pleading, the requirement is, that the plea shall show the record, or vouch it if it be in the same court in the first instance, and that he is not allowed to wait until nul tiel record is pleaded by the prosecutor. 2 Stark. Crim. PL 350. The rule may be stated to be, that, to make the plea a bar, proof of the facts alleged in the second indictment must be sufficient .in law to have warranted a conviction upon the first indictment of the same offense charged in the second, and not oi a different offense. The general rule adopted for ascertaining the identity of the offenses is as stated by Archbold in his work 614 LAW OF EVIDENCE IN CRIMINAL CASES. on Criminal Pleading, p. 106, where it is said: "The true test by which the question whether the plea is a bar in any particular may be tried is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction on the first." Substantially the rule has been stated in the same way by Chitty in his work on Criminal Law. Campbell v. People, 109 111. 565, 50 Am. Rep. 621. "To sustain this plea (autrefois convict or acquit), it is not sufficient simply to put in the former record; some evidence must be given that the offenses charged in the former and present in- dictments are the same. This may be done by showing, by some person present at the former trial, what was the offense actually investigated there; and, if that is consistent with the charge in the second indictment, a presumptive case will thus be made out, which must be met by proof on the other side, of the diversity of the two offenses." Wilson v. State, 45 Tex. 77, 23 Am. Rep. 602; 1 Bishop, Crim. Proc. § 816. It is the settled law that an acquittal on one indictment, in order to be a good defense to a subsequent indictment, must be an acquittal of the same identical offense as that charged in the second indictment. That fact must in some way appear from the plea itself, and that the offenses charged in both cases were the same in law and in fact. Com. v. Iiohy, 12 Pick. 496. The question must be determined by the facts appearing from the record, without the aid of extrinsic circumstances. What constitutes legal jeopardy has led to much discussion and diverse constructions. By most courts the constitutional pro- visions forbidding that any person be subject for the same offense to be twice put in jeopardy (U. S. Const. Amendments, art. 5 ; N. Y. Const, art. 1, § 6) are construed to mean nothing more than the common law rule as applied in the plea of autrefois acquit. In such construction there must have been a final verdict of con- viction or acquittal upon a valid indictment. Such is the rule in the United States courts {United States v. Gilbert, 2 Sumn. 41); in Massachusetts {Com. v. Bowen, 9 Mass. 494); in New York {Shepherd v. People, 25 X. Y. 406); and in many other states, as may !>c seen by reference to 1 Whart. Am. Crim. L. §§ 482-587. In other courts and in other states a very technical rule is adopted. The words, by the law of the land, as used originally in Magna Charta, in reference to this subject, are understood to mean due EVIDENCE OF FORMER JEOPARDY OR CONVICTION. 615 process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of those words. The better and larger definition of due process of law, is that it means law in its regular course of administration, through courts of justice. 3 Story, Const. 264, 661; 1 Kent, Com. pt. IV., p. 13. It is well settled, by abundant authority, that a person charged with the commission of a criminal offense, may waive any irregu- larity which exists in the case. He may waive a constitutional provision which is intended for his benefit. He may waive a trial by jury; he may waive a plea of autrefois acquit by not inter- posing it. He may also waive any matter of form or substance, ■excepting only what may relate to the jurisdiction of the court. Piersa-ti v. People, 79 N. Y. 424. § 382. How Question is Determined. — Obviously the most conclusive evidence the defense can furnish, is the record of the former conviction, and this seems to be required under the Mis- souri law. State v. Rugan, 6S Mo. 214. But as this rule would impose an unnecessary hardship upon the defense, it is well settled in most jurisdictions, that the record of the judgment is not abso- lutely essential. The identity of the two offenses may be estab- lished by either record or parol evidence. State v. Maxwell, 51 Iowa, 314; Dunn v. State, 70 Ind. 47; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542. Whether the accused has been previously tried for the same offense is a question to be determined partly by the record of the previous trial, and partly by parol evidence in connection with it for the purpose of identification. The burden of maintaining the defense of former jeopardy is upon the person pleading it; the record of a conviction of one of the same name raises a presump- tion of identity, and where the offense proved on the former trial corresponds with that alleged in the complaint, the presumption is that they are the same. While the record of the former trial is necessary, if it is not accompanied by other evidence, it will be insufficient to sustain the plea, it being equally necessary to pro- duce proof that the former prosecution was tor the same offense, and it must not only show that jeopardy had once attached, but also that it had not been discharged by operation of law or waived by some act of the defendant. Am. & Eng. Enc. Law, title Jeopardy, citing Bailey v. State, 20 (Ja. 579; Campbell v. State, 616 LAW OF EVIDENCE IN CRIMINAL CASES. 109 111. 565; Walter v. State, 105 Ind. 589; Marshall v. State, & Ind. 498; Grisham v. State, 19 Tex. App. 504; Emerson v. State, 43 Ark. 372; Swalley v. People, 2 West. Rep. 391, 116 111. 247;. Dunn v. State, 70 Ind. 47; Com. v. Dillane, 11 Gray, 67; 1 Bishop, Crim. L. § 1050; Whart. Crim. PL & Pr. § 481; F<9W^Z.s v. Com. 83 Ky. 193; State v. JTeto, 11 Mo. App. 91, 76 Mo. 505; Bayer v. State, 16 Ind. 451; Hensley v. State, 107 Ind. 587. § 383. Yiews of Mr. Bishop.— Mr. Bishop well expresses the prevailing juridical view in so far as evidence of a former convic- tion is concerned in the following language: "The former record is produced, and for what is provable thereby it is conclusive. Nor can the matter of the record be proved otherwise than by itself. There must be no variance between it and the plea. The identity of the parties and of the offense is established by parol testimony. ... If the identity alike of the parties and of the offense is conceded, it becomes a question for the court, whether or not there has been a previous conviction or acquittal." 1 Bishop, Crim. Proc. £ 816. This is in entire accord with the ancient common law authorities. 2 Hale, P. C. 241; Rex v. Sheen, 2 Car. & P. 635. § 384. Evidence that Jury were Discharged is Equivalent to an Acquittal. — It is well established that the discharge of a jury in a criminal case without the consent of the defendant, after it has been duly impaneled and sworn, but before verdict, is equivalent to a verdict of acquittal, unless the discharge was ordered in consequence of such necessity as the law regards as imperative, and that in such case the record must show the exist- ence of the necessity which required such discharge, otherwise the defendant will be exonerated from the liability of further answering to the indictment. Hints v. State, 24 Ohio St. 134; Mitchell v. State, 42 Ohio St. 383; Adams v. State, 99 Ind. 244; p.nr, 11 v. State, 17 Tex. App. 345; Whitten v. State, 61 Miss. 717; Maden v. Emmons, 83 Ind. 331; State v. Connor, 5 Coldw. 311; St, wart v. State, 15 Ohio St. 155; Dobbins v. State, 14 Ohio St. 4'.':;: Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Poage v. State,3 Ohio St. 229; State v. Walker, 26 Ind. 346; Rulo v. State, 19 Ind. 298; Grant v. People, 4 Park. Crim. Rep. 527; McCorkle v. State, 14 Ind. 39. § 385. Miscellaneous Authorities Examined. — Former ac- quittal, to be available as a defense, must be specially pleaded; EVIDENCE OF FOKMER JEOPAKDY OK CONVICTION. 617 the plea is not admissible under the general issue. Rickles v. State, 68 Ala. 538; State v. Morgan, 95 N. C. 641. Where the two trials of the same case were in the same court, it is not essential to interpose such pleas. Foster v. State, 25 Tex. App. 544; Robinson v. State, 21 Tex. App. 160. As to former jeopardy, see Com. y.Fitzpatrich, 1 L. K. A. 451, 121 Pa. 109. The plea of former acquittal is good only where the evidence necessary to support the second indictment would have been suffi- cient to procure a legal conviction on the first. HUands v. Com. 5 Cent. Kep. 267, 114 Pa. 372; Com. v. Trimmer, 84 Pa. 69. It applies where the transaction is the same and must be estab- lished by the same proof. Shubert v. State. 21 Tex. App. 551. An acquittal under an indictment for larceny is a bar to a sub- sequent indictment alleging ownership in a different person and the taking on a different day. Goode v. State, 70 Ga. 752; P> opU v. Goodwin, 18 Johns. 2u5; Com. v. Bowden, 9 Mass. 194; Com. v. Purchase, 2 Pick. 525. Nor is such a party put in legal jeopardy if the term of the court, as fixed by law, comes to an end before the trial is finished. State v. Brooks, 3 Humph. ~rl: Mahala v. State, 10 Yerg. 532, 31 Am. Dec. 591; State v. Battle, 7 Ala. 261; Be Spier, 12 N. C. 491; Wright v. State, 5 Ind. 292, 61 Am. Dec. 90; Cooley, Const. Lim. (4th ed.) 4<»4. Nor if the jury are discharged before verdict, with the consent of the accused, expressed or implied. State v. Slack, 6 Ala. 676. Nor if the verdict is set aside on mo- tion of the accused, nor on writ of error sued out in his behalf. State v. Redman. 17 Iowa, 329. Nor in case the judgment is ar- rested on his motion. People v. Casborus, 13 Johns. 351. The authorities in support of the doctrine that the effect of granting a new trial on the application of the defendant is the same in a criminal as in a civil case, and opens the whole cause for retrial upon the same issues as on the first, are collected in the case of State v. Behimer, 20 Ohio St. 572. It seems to us, how- ever, more in harmony with the humane maxims of the criminal law and the principles of the constitution, to hold that the find- ing of the jury acquitting the defendant of the higher offense was an adjudication upon that charge, and that legal effect should be given to it as Buch, while the new trial should be limited to the lower degree of homicide of which he had been convicted. 613 L.VW OK EVIDENOK IN CKIMLNAL CASKS. In the case of Wilson v. State, 24 Conn. 57, after an exhaustive examination of the question, it was held that the conviction of a person for petit larceny committed at the same time a burglary was committed, was not a bar to a subsequent prosecution for the burglary; and in case of Com v. Roby, 12 Pick. 496, it was held that a plea in bar is bad if the offenses charged in the two indict- ments be perfectly distinct in point of law, however closely they may be connected in point of fact. State v. Martin, 76 Mo. 337. In Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, the prisoners were indicted for murder in the first degree; they were tried on the plea of not guilty, and found guilty by the jury of murder in the second degree. A new trial was granted on their motion, and tluw were tried a second time and convicted for murder in the first degree. On appeal to the supreme court of Texas, the judgment was reversed. Mr. Justice Lipscomb, who delivered the "pinion of the court, after examining the authorities, said: " The result of our investigation is, that both on principle and the authority of adjudged cases, the appellants, after having been acquitted of murder in the first degree, and found guilty of mur- der in the second degree, could not be legally tried and convicted of murder in the first degree, and that the verdict so finding them cannot stand as the basis of a judgment and execution thereon." In State v. Tweedy, 11 Iowa, 351, the accused was indicted for murder in the second degree, and found guilty of manslaughter. The judgment was reversed on appeal, and the cause remanded for trial again. On the second trial, the court refused to instruct the jury that he had once been acquitted of murder, and could only be tried again for manslaughter. The case went again to tlif supreme court, and in a very able review of the authorities by Mr. Justice Wright, it was held that the verdict of manslaughter, on the first trial, was an acquittal of murder in the second degree, and that the prisoner could not again be put in jeopardy for that offense. The court said : "When the prisoner moved for a new trial, ami appealed to this court, he sought to be relieved of a judgment against him for manslaughter. He had no complaint to make that the jury had not convicted him in the offense of murder. If, however, he might properly be subjected to a second trial for murder, then he is compelled to submit to a verdict which he may deem ever so erroneous, lest by disturbing it, when EVIDENCE OF FORMER JEOPARDY OR CONVICTION. 619 insisting on his legal rights, he may place himself again in jeop- ardy. When a jury has once returned a verdict of guilty as to the lower offense, the prisoner should not, in our opinion, be placed in a position of additional hazard, by attempting to be relieved of the erroneous judgment. It is settled, upon authority, that if he obtains a new trial he may be again tried for the offense ■of which he was convicted. It is a very different thing, however when it is sought to try him for the offense of which he was not •convicted, and which was not necessarily in the verdict of guilty." Johnson v. State, 21) Ark. 31, 21 Am. Rep. 154. CIIAPTEK XL VII. DRUNKENNESS, INFANCY AND COVERTURE AS AN EXCUSE FOR CRIME. § 386. Preliminary Statement. 387. Drunkenness no Excuse for Crime. 388. Presumption of Sanity Obtains. 389. New York Code Provisions. 390. Statement of the General Rule. 391. Instance of its Availability. 392. A Distinction Noted. 393. Non-aye as an Excuse for Crime. 394. The Authorities Examined. 395. Evidence of Marital Coercion as an Excuse. § 386. Preliminary Statement. — The contention so frequently forced upon the attention of our jurists to the effect that the sod- den condition of the accused should operate an extenuation of his (au It, is a phenomena in criminal prosecution that should be suppressed. However strong the argument may be in the forum of con- science, in the dispensation of criminal justice it can find no place. It would not do to expose society to a doctrine so pernicious as this. It would never answer to say that a party who, in a drunken freak, comes into your house and murders you whilst you are harmless and inoffensive shall go free and unpunished. Life is too sacred and too dear — too valuable a gift from the Father and source of all life to be taken in this manner. The books contain but one rule upon this question from the earliest time down to the present, and that is, if a person voluntarily be- comes drunk he shall be accountable for what he does while in that condition. It does not avail the accused that he did the un- lawful act in the spirit of mere drunken bravado. Human life cannot be so cheapened as to permit voluntary drunkenness to shield an accused person who, in the commission of an unlawful act, unintentionally takes another's life. Surber v. /State, 99 Ind. 71. This sufficient reason locates the law governing the subject.. § 387. Drunkenness no Excuse for Crime. — Modern criminal 620 LUCU.NK.ENNESS, INFANCY AND 00VI5KTUSE AS EXCUSE. 621 jurisprudence has long recognized the presence of an inexorable law, which refuses to admit mere intoxication as an excuse for crime. Tidwell v. Stats, 70 Ala. 33; State v. Bullock, 13 Ala. 413; Friery v. People, 51 Barb. 319; People v. Robinson, 1 Park. Crim. Rep. 649; State v. Thompson, 12 Nev. 110; Shanna- han v. Com. 8 Bush, 461; State v. Turner, Wright (Ohio) 20; United States v. Drev), 5 Mason, 28; Boswdl v. Com. 20 Graft. 860; State v. Mullen, 14 La. Ann. 577; Eafferty v. People, 66 111. 118; McKenzie v. State, 26 Ark. 335; State v. Keaih, S3 N. C. 626; Peoph v. Williams, 43 Cal. 344; tfAwce v. State, 31 Ga. 421; AV'/A' v. Hurley, 1 Houst. Crim. Cas. 28; People v. Porter, 2 Park. Crim. Rep. 14; Mercer v. tftate, 17 Ga. 146; People v. H '///>//, 2 Park. Crim. Rep. 19; Estes v. State, 55 Ga. 30; State v. Harlow, 21 Mo. 446; Marshall v. $tafe, 59 Ga. 154; iVvyyA v. Puller, 2 Park. Crim. Rep. 16; Kenny v. People. 31 N. Y. 330; O'Brien v. People, 48 Pari). 274; Com. v. Hawkins, 3 Gray, 463; Pro/V^ v. i?^,-s, IS N.T.9, 72 Am. Dec. 4S4; <7o»i. v. Dougherty, 1 Browne, App. 20; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Com. v. J [art. 2 Brewst. 516; Golden v. aStofc, 25 Ga. 527; 1 Russell, Crimes, 12; 2 Bl. Com. 25; Coke, Inst. 274a. The foregoing adjudications sufficiently indicate the extended prevalence of the rule, any serious modification of this view would be dangerous to and subversive of public welfare. But in many cases evidence of intoxication is admissible with a view to the question whether a crime has been committed; or where a crime, consisting of degrees, has been committed, such evidence may be important in determining the degree. Thus an intoxicated person may have a counterfeit bank bill in his possession for a lawful purpose, and, intending to pay a genuine bill to another person, may, by reason of such intoxication, hand him the counterfeit bill. As intent, in such case, is of the essence of the offense, it is possible that in proving intoxication you go far to prove that no crime was committed. Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 55S; Clint v. State, 43 Ohio St. 332. A man who voluntarily puts himself in a condition to have no control of his action.- must be held to intend the consequei The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is so often resorted to as a means of nerving a person up to the commission of some desperate 022 LAW OF EVIDENCE IN CKIMINAL CASES. act, and is withal so inexcusable in itself, that law has never recognized it as an excuse for crime. Hopt v. Utah, 104 U. S. 631, 20 L. ed. 873. This exact question was before the New York court of appeals in the case of People v. Rogers, 18 N. Y. 18, 72 Am. Dec. 484. In delivering the judgment of the court in that case Chief Justice I K'liio, says: " When a principle in law is found to be well estab- lished by a series of authentic precedents, and especially where there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will, moreover, occur to every mind that such a principle is absolutely essential to the pro- tection of life and property. In the forum of conscience there is no doubt considerable difference between a murder deliberately planned and executed by a person of unclouded intellect and the reckless taking of life by one infuriated by intoxication, but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct. But there is, in truth, no injustice in holding a person responsible for his acts committed in a state of voluntary intoxi- cation. It is a duty which every one owes to his fellow men and to society, to say nothing of more solemn obligations, to preserve, so far as it lies in his own power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vice, the law holds him not accountable. But if by a voluntary act he temporarily casts off the restraints of reason and conscience, no wrong is done him if he is considered censurable fur any injury which in that state he may do to others or to society." The same doctrine w T as long since enunciated by that eminent judge, Lord Mansfield, who said, in the celebrated case of The Chambt rlain of London v. Evans, in the House of Lords, Febru- ary 4, 1767, that a " man shall not lie allowed to plead that he was drunk in bar of criminal prosecution, though, perhaps, he was at the rime as incapable of the exercise of reason as if he had been insane, because his drunkenness was itself a crime, he shall not be allowed to excuse one crime by another." It is a settled maxim of the law " that a man shall not disable himself." Mr. May, in his Criminal Law, § 22, says: "When, however, in the course of trial, a question arises as to the particular state of DRUNKENNESS, INFANCY AND COVERTURE AS EXCUSE. 623 the mind of the accused at the time when he committed a crime — as, for instance, whether he entertained a specific intent, or had express malice, or was acting with deliberation — the fact of intox- ication becomes an admissible element to aid in its determination; not as an excuse for the crime, but as a means of determining its degree. If a man be so drunk as not to know what he is doing, he is incapable of forming any specific intent." Lancaster v. State, 2 Lea, 575. Continued and excessive drunkenness may render the accused incapable of forming or entertaining the specific intent which is a material ingredient of the statutory offense of an assault with intent to murder. Ross v. State, 62 Ala. 224. § 388. Presumption of Sanity Obtains. — The accused must be presumed to be sane till his insanity is proved. It is not every kind or degree of insanity which exempts from punishment. If the accused understood the nature of the act; if he knew it was wrong and deserved punishment, he is responsible. Experts are not allowed to give their opinions on the case, where its facts are controverted; but counsel may put to them a state of facts, and ask their opinions thereon. If a person suffering under delirium tremens, is so far insane as not to know the nature of his act, etc., he is not punishable. If a person, while sane and responsible, makes himself intoxicated, and, while intoxicated, commits mur- der by reason of insanity, which was one of the consequences of intoxication, and one of the attendants on that state, he is respon- sible. United States v. McGlue, 1 Curt. C. C. 1. It would be easy to multiply citations of modern cases upon this doctrine; but it is unnecessary, as they all agree upon the main proposition, namely, that mental alienation, produced by drinking intoxicating liquors, furnishes no immunity for crime. § 389. New York Code Provisions. — "No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determin- ing the purpose, motive or intent with which he committed the act." K Y. Penal Code, § 22. 624 LAW OF EVIDENCE IN CRIMINAL CASES. If voluntary intoxication may be considered upon the question of intent, a fortiori upon that of deliberation. § 390. Statement of the General Rule.— At common law, indeed, as a general rule, voluntary intoxication affords no excuse, justification or extenuation of a crime committed under its influ- ence. United Stat,* v. Drew, 5 Mason, 28; United States v. Mc- GVue, 1 Curt. C. C. 1; Com. v. Hawtems, 3 Gray, 463; People v. Rogers, IS K". Y. 9, 72 Am. Dec. 484. But when a statute establishing different degrees of murder requires deliberate pre- meditation in order to constitute murder in the first degree, the question, whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, uecessarily becomes a material subject of consider- ation by the jury. The law has been repeatedly so ruled in the supreme judicial court of Massachusetts in cases tried before a full court. Com. v. Dorset/, 103 Mass. 412, and in well consid- ered cases in courts of other states. PirtU v. State, 9 Humph. 663; Haile v. State, 11 Humph. 154; Kelly v. Com. 1 Grant Cas. 184; Keenan v. Coin. 44 Pa. 55, si Am. Dec. 414; Jones v. Com. 75 Pa, 403; People v. Belencia, '11 Cal. 544; People v. Williams, 43 Cal. 344: Statt v. Johnson,^) Conn. 136, 41 Conn. 584; Pigman v. State, 14 Ohio, ->->'k 45 Am. Dec. 558. And the same rule is expressly enacted in the Penal Code of Utah, § 20: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particu- lar species or degree of crime, and the jury may take into consid- eration the fact that the actfnsed was intoxicated at the time, in determining the purpose, motive or intent with which he commit- ted the act." Compiled Laws of Utah, of 1876, pp. 568, 569; Hopt tah, 104 l'. S. 631, 26 L. ed. 873. | 391. Instances of its Availability. — Drunkenness, although carried to the extent that it overcomes the will, and incapacities from controlling the action of the mind, is no excuse for a crime; and voluntary intoxication, although amounting to a frenzy, does not exempt one who commits a homicide without provocation, from the same construction of his conduct, and the same legal inferences upon the question of intent, as affecting the grade of DRUNKENNESS, INFANCY AND COVERTURE AS EXCUSE. 625 his crime, which are applicable to a person entirely sober. Flani- gan v. People, 86 JS\ Y. 554, 40 Am. Rep. 556. Intoxication, though not an excuse for crime, ma}' reduce the crime of murder to the second degree. Jones v. Com. 75 Pa. 403; Com. v. Crozier, 1 Brewst. 349; Com. v. Hart, 2 Brewst. 546; Com. v. Perrier, 3 Phila. 229; Com. v. Dunlop, Lewis, Crim. L. 394; Corn. v. Haggerty, Lewis, Crim. L. 402; Com. v. Baker, 11 Phila. 631; Com. v. Piatt, 11 Phila. 415. Many courts have allowed drunkenness to be shown in mitiga- tion of the higher offense. In the case of State v. Johnson, 40 Conn. 136, the court held that intoxication, as tending to show that the prisoner was incapable of deliberation, might be given in evidence. Chief Justice Seymour dissented, and Foster, -/., who tried the case below, did not sit, so that the four judges con- stituting the court, were in fact, equally divided. The same case came before the court again in 41 Conn. 5S4, and the opinion was delivered by the same judge. The court were hard pressed with the former opinion in the same case, and that it had taken a departure from the common law. But the court repelled the intimation, and declared that "we have enunciated no such doc- trine," but "held on a trial for murder in first degree which under our statute requires actual express malice, the jury might and should take into consideration the fact of intoxication, as tending to show that such malice did not exist." And, in the same opin- ion, the judge says: "Malice may be implied from the circum- stances of the homicide. If a drunken man take the life of another, unaccompanied with circumstances of provocation or justification, the jury will be warranted in finding the existence •of malice, though no express malice is proved. Intoxication, which is itself a crime against society, combines with the act of killing, and the evil intent to take life which necessarily accompa- nies it, and altogether afford sufficient grounds for implying malice. Intoxication, therefore, so far from disproving malice, is itself a circumstance from which malice may be implied. We wish, therefore, to reiterate the doctrine emphatically, that drunk- enness is no excuse for crime; and we trust it will be a long time- before the contrary doctrine, which will be so convenient to crim inals and evil disposed persons, who receive the sanction of this 40 020 LAW OF EVIDENCE IN CK1MINAL OASES. court." This reasoning seems to us both illogical and incongru- ous. Intoxication may be considered in connection with other facts in rebuttal of malice {State v. Tatro, 50 Vt. 483; Shannahan v. Com. 8 Bush, 403, 373; Golden v. State, 25 Ga. 527; Dawson v. State, 10 Ind. 428; 1I< nry v. State, 33 Ga. 441); or to test capacity to form a purpose {Kenny v. People, 31 N. Y. 330; People v. Odell, 1 Dak. 203); or to decide between right and wrong, to show incapacity to deliberate or to attack or defraud {State v. Johnson,. 40 Conn. 130; Wens v. State, 1 Tex. App. 30; State v. Home, 9- Kan. 11!* i or as to whether threats were its result, or deliberate. Lam rgan v. People, 50 Barb. 207; People v. Eastwood, 14 N. Y. 502. It is available to disprove a specific intent, as to pass counter- feit money with intent to cheat {United States v. Roudenbush, Baldw. r>14; Pigman v. State, 15 Ohio, 555, 45 Am. Dee. 558; but see, Nichols v. State, 8 Ohio St. 435; State v. Avert/, 44 JN\ II. 392); or to commit suicide {Lytle v. State, 31 Ohio St. 190); or perjury {Real v. PeopU , 42 X. Y. 270); or, in assault, an intent to murder {Reg. v. Cruse, 8 Oar. t% P. 541; State v. Garvey, 11 Minn. 154; Mooney v. State, 33 Ala. 419); or to do great bodily harm. State v. McCants, 1 Speer, L. 384; Gull (her v. CW&. 2 Duv. 103, 87 Am. Dec. 493; Roberts v. People, 19 Mich. 401; Y,\v. v. Moore, 3 Car. & K. 319. In case of wanton killing without provocation, intoxication is not. available to disprove the criminal intent. (>' Herrmv. State, 14 Ind. 4i J i»; Choice v. State, 31 Ga. 424; Humphreys v. State, 45 Ga. 190; Zfttes v. State, 55 Ga. 30; Rafferty v. People, 00 111. US; 7,', v. v. Gamlen,l Fost. & F. 90. Intoxication furnishes no extenuation where a man forms the purpose when sober and takes liquor to prepare himself for the act. Peopli v. Fuller, 2 Park. Crim. Pep. 10; State v. Johnson, 41 Conn. 584; State v. Cross, 27 Mo. 332; State v. Harlow, 21 Mo. 446; Com-, v. Hawkins, 3 Gray, 463; Com. v. Malone, 114 Mass. 295; United States v. Cornell, 2 Mason. '.H: Frlery v. ,/teo- y.V, . 54 Barb. 319; State v. JbAw, 30 N. C. 330; but see, State v. Hundley, 46 Mo. 414: Carry v. C presumption no averment shall be received. This legal incapacity, however, ceases when the infant attains the age of fourteen years, after which period his acts become subject to the same rule of construction as those of any other person." " Between the ages of seven and fourteen years an infant is deemed prima facie to be doli incapax,' but in this case the maxim applies, malitia supplet aslak m — malice supplies the want of mature years. Accordingly, at the age above men- tioned, the ordinary legal presumption may be rebutted by strong and pregnant evidence of mischievous discretion; for the capacity of doing ill or contracting guilt is not so much measured by years and days as by the strength of the delinquent's understanding and judgment. In all such cases, the evidence of malice ought to be strong, and clear beyond all doubt and contradiction." See also Archbold, Criminal Practice & Pleading, pp. 11, 12, where the same rule is announced. The doctrine recognized in the elementary books upon the question involved is, ''that infants are prima facie unacquainted with guilt, and cannot be convicted, unless at the time the offense was committed they had a guilty knowledge that they were doing wrong." This is not even a disputable presumption when applied to an infant under seven years of age; but between seven years and fourteen the commonwealth may rebut the presumption by show- ing a guilty knowledge on the part of the accused. Russell says that this presumption will dimish with the advance of the offender's years, and will depend upon the particular tacts and circumstances in his case. 1 Russell, Crimes, 2. 63^ LAW OF EVIDENCE IH CBIMINAL CASES. This same author suggests that "the proper course is to leave the case to the jury to say whether, at the time of the commission of the offense, such person had guilty knowledge that he was do- ing wrong." The test given by Lord Hale is, " whether the accused at the time was capable of discerning between good and evil." Taylor, in his work on Evidence, questions the philosophy of the rule laid down by Hale, for the reason that it is too indefinite, and may be applied "either to legal responsibility or to moral guilt," 1 Taylor, Ev. 190. Few infants between the ages of seven and fourteen years, with ordinary intellects, are so ignorant as not to know that to lie or steal is wrong; and, therefore, in applying the rule laid down by Lord Hale or Russell, the infant derives no benefit from the legal presumption, and, instead of being favored by the law, is dealt with in the same manner as those more advanced in life. A sense of moral guilt only on the part of the infant, in the ab- sence of a knowledge of his legal responsibility for his wrong- ful act, will not authorize a conviction. When the prosecution satisfies the jury that the infant, at the time he committed the offense, knew it was wrong, and was aware of his legal responsibility for the commission of the crime, the legal presumption of innocence on account of his tender years no longer exists; but in the absence of such proof, the legal pre- sumption must produce an acquittal. Willet v. Com. 13 Bush, 230. The attitude of criminal law upon this subject has crystalized int«> statutory form in England, and from it Sir James Stephen has redacted the following as expressive of its intent: "JlNoact done by any person under seven years of age is a crime. JS r o act done by any person over seven and under fourteen years of age is a crime, unless it be shown affirmatively that such person had sufficient capacity to know that the act was wrong." Stephen, Dig. art. ^:». 21 I. For authorities sustaining these propositions, the distinguished author cites 1 Hale, P. G. 27, 28; 1 Russell, ('rimes, 7; Rex v. Ow( n, 9 Car. & P. 230; and see cases collected, 1 Russell, Crimes, 7- 1 1 >. Sometimes statutes exist with reference to the criminal respon- sibility of minors. For example, in Texas, it is provided by DRUNKENNESS, INFANCY AND COVERTURE AS EXCUSE. 631 •statute, that no person shall be convicted of any offense com- mitted between the ages of nine and thirteen years, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act. Paschal, Dig. art. 1638. Under this statute it is held, that the prosecution must prove that a defendant, who comes within the statute and who is indicted for murder, knew that the killing of a human being was a great crime, prohibited by law under severe penalties. Wusing v. State, 33 Tex. 651. The same rule prevails in Alabama, except that the age of the infant is fixed at seven and fourteen. Godfrey v. State, 31 Ala. 323. With regard to capital crimes the law is, very properly, more minute and circumspect, distinguishing with greater nicety the several degrees of age and discretion, than in cases of inferior grade; but if it appear to the court and jury that the offender was doli capax, and could discern between good and evil when he committed the offense, he may be convicted and suffer death. Tyler, Infancy & Coverture, 139. Evidence that a boy is under the age of fourteen is always competent and where such a fact is made to appear is not liable for false pretense. Doran v. Smith, 19 Vt. 353. The question in all instances of his capacity to know good from evil, is a ques- tion of fact to be determined by the jury. Peopl< v. Davis, 1 Wheel. Crim. Cas. 230; State v. Doherty, 2 Overt. 80; People v. Walker, 5 City Hall Kec. 137; Stage v. !>■ ople,5 ( !ity Hall Rec. 177; fioj. v. Smith, \ Cox, C. C. 260; Rest v. Owen, 4 Car. & P. 236. § 395. Evidence of Marital Coercion as an Excuse. — It is a general rule of law that persons are excused from those acts which are not done of their own free will, but in subjection to the powers of others. And as to persons in private relations, the principal case where such constraint is allowed as an excuse for criminal misconduct, is that of a wife, based upon the idea of her matrimonial subjection of her husband. She will not be able to suffer for an offense done by his coercion, or in his company which the law construes as coercive. But the coercion from be- ing in his company is only presumed; and if it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is as guilty as he is. If she steal of her own will, or by the bare command of her husband or of his procurement, she is 632 LAW OF EVIDENCE IN CRIMINAL CASES. liable as well as he. Reg. v. Buncombe, 1 Cox, C. C. 183; Rex v. Hughes, 2 Lew. C. C. 229, cited in 1 Russell, Crimes, *22. The presence of the husband is not an absolute excuse, it gives only a prima facie presumption of coercion. * The prima facie presumption that the wife was coerced into committing the crime could be rebutted by showing that she was tlic more active party. Wagener v. Bill, 19 Barb. 321; Rex v. Hughes, 2 Lew. C. C. 229; Reg. v. Cohen, 11 Cox, C. C. 99; Rex v. Morris, Russ. & R. 270; 2 Barbour, Crim. L. 273; 1 Rus- sell, Crimes, 18, 21, 22. The rule is everywhere established, that the commission of a criminal act raises the presumption of the criminal intent, not- withstanding that the criminal was drunk when he committed it. No other rule would be consistent with the safety of society. But where the existence of a specific intent is necessary to the criminal act, a degree of drunkenness, incompatible with the formation of that intent, negatives the act, and disproves the crime. Robinson, Elementary Law, § 387, citing Broom, Com. 887, 888; 1 Hale, P. C. 32; 1 Russell, Crimes, 7, 8; 1 Whart Crim. L. §£ 32-14; 1 Bishop, Crim. L. §§ 397-416; 1 Bennett & Heard, Lead. Crim. Cas. 131-145. CHAPTER XLVIII. EVIDENCE OF INSANITY. § 390. Preliminary observations. 397. Conflicting Theories Regarding the Subject. 398. Insanity should be Established Beyond a Reasonable JJoubt. 399. Statement of the Doctrine in the Boswell Case. 400. Wide Acceptance of the Rule hist Stated. 401. Attitude of the New York Court. 402. The Celebrated McNaghten ''use Considered. 403. The Right and Wrong Test Considered by Mr. Justice Ladd of the New Hampshire Court. a. Anal //sis of the McNaghten Case. b. The Result Examined. c. Worthlessness of the Conclusion Shown. d. Practical Repudiation of the McNaghten Case by English Jurists. 404. Early Views of the Massachusetts Court. 405. New York and Pennsylvania Cases Considered. 40G. Instances where all Tests hare been Discarded. 407. Delaware Adopts the New Hampshire View. 408. " Right and Wrong" Test in Formulas. 409. Liberal Views of the Alabama Supreme Court. a. As to Medical Experts. b. But Three Questions for the Jury. c. Modification of the Rule in BosivelVs Case. d. " Right and Wrong" Test Denounced. e. Rule of the French and German Criminal Codes Stated. f. Dissenting Views of Chief Justice Stone. g. A Cautionary Paragraph. 410. The Problem Considered by Dr. Ordronaux. 411. The Guiteau (fuse Examined. a. Abuse of Insanity as a Defense. b. Evidence of Insanity in Parents and Immediate Relatives. c. Legitimate Conclusions from the Evidence, d. The McNaghten Case again Reviewed. 633 634 LAW OF EVIDENCE IN CRIMINAL CASES. e. Monomaniac and Insane Delusions Considered. f. Unsworn Declarations of the Accused. g. The Test of Criminal Responsibility. h. Theory of Irresistible Impulse Examined. i. Review of the State Decisions. j. Comments of Judge Somerville. 412. Views of Mr. Robert Desty. 413. Views of the Florida Supreme Court. 414. Moral Insanity as an Excuse for Crime. 415. Summary of the Conclusions Reached. 416. Review of the Subject by the Nevada Supreme Court. §396. Preliminary Observations. — The frequency with which the records of appeal in cases of homicide are incumbered with allegations of error regarding the instruction of the trial court as to what constitutes insanity, renders it desirable to reach some satisfactory conclusion on this subject. Our state reports contain many formulas which are designed to embody the existing law, and after a careful review of the various judicial dicta, we are inclined to recommend the instructions contained in the case of Baldwin v. State, 12 Mo. 223. The judge's charge in that particular case has been the subject of much comment and critical examination. It has been found to harmonize with both public sentiment and statutory law, in that it is founded upon the prin- ciple that "in medio tutissim us est" is found a rule lying between two extremes. This decision is authority for the broad proposi- tion that the defense of insanity is established when the evidence offered in support of it preponderates in favor of the fact, and reasonably satisfies the jury that it existed at the time the crimi- nal act charged was committed. The fact that insanity is so easily simulated demonstrates the wisdom of the rule, and affords a strong reason why we should adhere to it. Dr. Kay has well observed : "No cases subjected to legal in- quiry are more calculated to puzzle the understandings of courts and juries, fco mock the wisdom of the learned, and baffle the acuteness of the shrewd, than those connected with questions of imbecility;" and he might have safely added, insanity generally. See Ray, Insanity (3d ed.) § 104. 397. Conflicting Theories Regarding the Subject. — Two conflicting theories are struggling for ascendency in the criminal jurisprudence of the country, as regards the degree of evidence EVIDENCE OF INSANITY. 635 necessary to uphold a conviction where insanity is interposed as a •defense. The first theory is of English origin and generally ob- tains in Alabama, Arkansas, California, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, North Carolina. Ohio, Penn- sylvania, Virginia, West Virginia and Texas, with some slight modification. The rulings in these states substantially hold, that the jury must regard the preponderance of evidence as controllino- their decision on the question of lunacy — that is, it need nut be established beyond a reasonable doubt. The second group of •cases have been decided by the courts of New Hampshire, A^er- mont, Michigan, Illinois, Indiana, Kansas, and possibly New- York, and go far to sustain the contention, that under the de- fense of insanity, it is for the state to prove that the accused was ■compos mentis beyond a reasonable doubt. A review of the authorities will show the subtle distinction to which this subject gives rise and the infinite diversities of its ap- plication. State v.Jones, 50 X. 11. 369, Am. Rep. 242; State v. Bart- lett, 43 K H. 224, 80 Am. Dec. 154: Wright v. People, 4 Neb. 408; Cunningham v. State, 56 Miss. 272. 21 Am. Rep. 360; Peo- ple v. Finley, 38 Mich. 482; McAllister v. State, 17 Ala. 436, 52 Am. Dec. ISO; P^ple v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; State v. Crawford, 11 Kan. 32: Boswell v. State, 63 Ala. 307, 35 Am. Rep. 2": Guetig v. State, 66 Ind. 94. 32 Am. Rep. 99; Mc- Kenzii v. State, 26 Ark. 334; SU vens v. State, 31 Ind. 4^5: Peo- ple v. Myers, 20 Cal. 518; Polk v. State, 19 Ind. 170, SI Am. Dec 382; People v. Coffman, 24 Cal. 233: Chase v. People, 40 111. 352; People v. McDonnell, 47 Cal. 134; Hopps v. People, 31 111. 385, 83 Am. Dec. 231; People v. Wilson, 49 Cal. 14; Fisher v. People, 23 111. 293; State v. Hoyt, 46 Conn. 330; Boswell v. Com. 20 Gratt. 860; State v. Danby, 1 Houst. ('rim. Cas. 175; Clark v. State, 8 Tex. App. 350; Carter v. State, L2 Tex. 500, 62 Am. Dec. 539; State v. Fetter, 32 Iowa. 50; Dove v. State, 3 Heisk. .".4^; Kriel v. Com. 5 Rush, 362; So. v. Com. >> Pa. 301; Graham v. Com. 16 I!. Mon. 587; Pannell v. CW. 86 Ra. 268; N////7// v. Cbm. 1 Duv. 224; Meyers v. I 83 Pa. 141; >V///. ,6'A/A? v. Klinger, People v. Goffootn, Fisher v. Peo- ple, Bonfanti v. State, Leffner v. State, People v. McDonnell^ StaU v. Fetter, Boswell v. 6V>/m. and Kriel v. Com. supra. § 398. Insanity should be Established beyond a Reason- able Doubt. — It is a general rule, applicable to all criminal trials, that to warrant a conviction the evidence should satisfy the jury of the defendant's guilt beyond a reasonable doubt; and it has been held that there is a distinction in this respect between civil and criminal cases. This rule is based upon the presumption of iniK »cence, which always exists in favor of every individual charged witli the commission of a crime. It is also a rule, well established by authority, that where, in a criminal case, insanity is set up as- a defense, the burden of proving the defense is with the defend- ant, as the law presumed every man to be sane. But I apprehend that the same evidence will establish the defense which would prove insanity in a civil case. The rule requiring the evidence to satisfy the jury beyond a reasonable doubt is one in favor of the EVIDENCE OF INSANITY. 637 individual on trial charged with the crime, and is applicable only to the general conclusion, from the whole evidence, of guilty or not guilty. In Stats v. Spencer, 21 N. J. L. 196, Chief Justice Hornblower laid down the rule that, in order to acquit a person on the ground of insanity, the proof of insanity, at the time of committing the act, ought to be as clear and satisfactory as the proof of commit- ting the act ought to be in order to find a sane man guilty. In a capital case where insanity is interposed as a defense all rules of strict construction as to the admission of evidence, should be relaxed. Even in case where the court is convinced that the defense is spurious and improvised as a last resort for evading the conse- quences of crime, its duty is to hear the evidence for the defense and refrain from any expression of personal opinion regarding it. DeJarnette v. Com. 75 Va. 867; Fain v. Com. 78 Ky. 183, 39 Am. Rep. 213; Walsh v. People, 88 K Y. 458. So evidence of somnolentia is receivable. Fain v. Com. supra. And evidence of derangement or mental disturbance, in the ancestors or blood relations of the accused must be regarded as always competent. So it is error to exclude evidence that the father and brothers of the prisoner were the subjects of epilepsy and of strange con- duct, tending to show that they were tainted with insanity. Bax- ter v. Abbott, 7 Gray, 71; Cole's Trial, 7 Abb. Pr. N. S. 330, 331; Com. v. Rogers, 7 Met. 500, 11 Am. Dec. 458; Coon v. Andrews, Mass. 1868, cited in 1 Whart. & S. Medical Jurisprudence, § 375; 1 Whart. Am. Crim. L. § 57. As a question of evidence, the burden of proof of sanity is upon the government in all cases. The act must not only be proved, but it must also be proved that it is the voluntary act of an intelligent person. Where the will does not co-operate, there is no intent. But as sanity is the normal state of the human mind, the law presumes everyone sane till the contrary is shown ; and this presumption, in the absence of evidence to the contrary, is sufficient to sustain this burden of proof. If, however, the defendant can, by the introduction of evidence, raise a reasonable doubt upon the question of sanity, he is to he acquitted. This is the general rule, supported by the great weight of authority. In 038 LAW OF EVIDENCE IN CRIMINAL CASES. some of the states, however, it is held that if the prisoner sets up insanity in defense, he must prove it by a preponderance of evi- dence, or it is of no avail. It is not enough for him to raise a reasonable doubt on the point. In New York, the authorities, seem to be conflicting. In New Jersey, it seems to be the law that the prisoner must prove the defense of insanity beyond a reasonable doubt. May, Crim. L. § 20, citing Com. v. Pomeroy, 117 Mass. 143: People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Stati v. Crawford, 11 Kan. 32, 32 Am. L. Reg. N. S. 21 and note; Polk v. State, 19 Ind. 170, SI Am. Dec. 382; State v. Mar- ler, 2 Ala. 43, 36 Am. Dec. 398; Dove v. State, 3 Heisk. 348; Statt v. Jones, 50 K H. 369, 9 Am. Eep. 242; Lynch v. Com. 77 Pa. 205; Kelly v. State, 3 Smedes & M. 518; State v. Fetter, 32 [owa, lit; People v. Best, 39 Cal. 690; State v. Lynch (Mo.) 4 L. & Eq. Rep. 653; Boswell v. Com. 20 Gratt. 866; Wagner v. Peo- ple, 4 Abb. App. Dec. 509; People v. McCann, 16 K Y. 58, 69 Am. Dec. 642: Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731; State v. Spencer, 21 JST. J. L. 202. § 399. Statement of the Doctrine in the Boswell Case.— The questions involved in this chapter were fully and elaborately considered in Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, where the authorities on the subject in both England and America are lucidly reviewed in the opinion of Mr. Justice Stone speaking for a majority of the court. The doctrine is there held, that insanity is a defense which must be established to the satisfaction of the jury, by a preponderance of the evidence, and a reasonable doubt of the defendant's sanity, raised by all the evidence, does not authorize an acquittal. A subsequent case in the same court (Ford v. State, 71 Ala. 385) involving substantially the same question, elicited the same expressions from Mr. Justice Somer- ville. Traveling with the utmost caution to the conclusion reached, he says: "I confess, if the question were a new one, that, apart from authority, I should be greatly disposed to favor the view that, although the law presumed sanity, it at the same time presumed innocence, that these presumptions are each dispu- table and must go to the jury to be considered by them in con- nection with the other evidence, and that if the jury, upon the facts and conflicting presumptions of the whole case, entertain a reasonable doubt that the crime charged was committed by the prisoner while in a sane state of mind, he is entitled to an acquit- EVIDENCE OF INSANITY. 639 tal. This is the modern or strictly American doctrine, and finds no countenance, so far as I can discover, among the best law- writers or adjudged cases in England. It seems to be approved by Mr. Bishop alone of the American text-writers, and finds sup- port in the decisions of only some nine or ten of the highest courts of the several states. 2 Bishop, Crim. Proc. § 673; (f Conn ell v. People, 87 K Y. 377, 41 Am. Peep. 379; Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; State v. Crawford, 11 Kan. 32; Guetig v. State, m Ind. 94, 32 Am. Pep. 99; Chase v. People, 40 111. 352; Wright v. People, 4 Neb. 407; State v. Jones, 50 K H. 369, 9 Am. Eep. 242; Dove v. State, 3 Heisk. 348; State v. Patterson, 45 Vt. 308,. 12 Am. Rep. 200; State v. Waterman, 1 Nev. 543. "The doctrine of Boswell's case, which repudiated the ordinary rule of reasonable doubt as applicable to insanity cases, is, how- ever, sustained by the great weight of authority. It seems to be approved by all of the English text-writers and adjudged cases- coming within the sanction of the common law which, for many forcible reasons placed insanity upon a basis somewhat different from other defenses. Reg. v. McNaghten, 10 Clark & F. 200; Peg. v. Iligginson, 1 Car. & K. 130; Russell, Crimes (9th ed.) 525. It is said, in Roscoe's Criminal Evidence, that 'the onus of proving the defense of insanity, or in the case of lunacy, of show- ing that the offense was committed when the prisoner was in a state of lunacy, lies on the prisoner.' Roscoe, Crim. Ev. (7th ed.) 975. In Foster's Crown Law it is said, 'all the circumstances of the accident, necessity or infirmity, are to be satisfactorily proved by the prisoner.' Foster, Crown L. 225. "Among the American authors, Mi*. Wharton strongly favors the view that the burden of the proof is on the defendant to prove his insanity by a preponderance of the evidence, the defense being said to be extrinsic and likened to an application in 'the nature of a plea to the jurisdiction, or a motion for change of venue.' Whart, Horn. § 668; Whart. Crim. Ev. § 340; Whart. Am. Crim. L. (7th ed.) § 54. Mr. Greenleaf says that the defense 'must be clearly proved,' — and again that it 'must be established by evidence satisfactory to the jury.' 2 Greenl. Ev. § 373; 3 Greenl. Ev. 5. The adjudged cases in this country present a vast weight of authority favorable to the doctrine of Boswell's case, or at least in repudiation of the rule entitling the defendant to an 640 LAW OF EVIDENCE IN CRIMINAL CASES. acquittal upon the existence of a mere reasonable doubt of his sanity. Many of these cases state the rule more strongly against the defendant, and some go to the length that the defendant must establish his insanity to the satisfaction of the jury beyond a rea- sonable doubt. These views prevail in several of the states. Mc- Allister v. State, 17 Ala. 434, 52 Am. Dec. 180; Com. v. Heath, 11 Gray, 303; Sayres v. Com. SS Pa. 291; State v. Fetter, 32 Iowa, 49; State v. Payne, 86 N. C. 609; Graham v. Com. 16 B. Mon. 587; State v. Strauder, 11 W. Va. 745, 27 Am. Kep. 606; State v. Stark, 1 Strobh. L. 479; State v. Lawrence, 57 Me. 574; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462; Bergin v. State, 31 Ohio St. Ill; Webb v. State, 9 Tex. App. 490; Boswell v. Com. 20 Gratt. 860; People v. Messersmith, 57 Cal. 575; State v. Gut, 13 Minn. 341; McKensie v. State, 26 Ark. 334; Carter v. State, 56 Ga. 463; State v. Spencer, 21 K J. L. 196; State v. Banby, 1 Houst. Crim. Rep. 166; State v. Hoyt, 46 Conn. 330." § 400. Wide Acceptance of the Rule last Stated. — The Pennsylvania courts have accepted the doctrine of the Boswell case, as is abundantly evidenced by Chief Justice Agnew in Ort- v< In v. C<>in. 76 Pa. 414, 18 Am. Rep. 420. "Insanity is a defense. It presupposes the proof of the facts which constitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of willful and malicious killing has been proved, and requires a verdict of murder, the prisoner, as a defense, avers that he was of unsound mind at the time of the killing, and incapable of controlling his will, and, therefore, that he is not legally responsible for his act. . . . Soundness of mind is the natural and normal condition of men, and is necessarily presumed; not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society. JSTo one can justly claim irresponsibility for his act contrary to the known nature of the race of which he is one. He must be treated and be adjudged to be a reasonable being, until a fact so abnormal as a want of reason positively appears. It is therefore not unjust to him that he should be so conclusively presumed to be, until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact, the evidence of it must be satisfactory and not merely doubtful, as nothing less than satisfac- tion can determine a reasonable mind to believe a fact contrary to the course of nature." EVIDENCE OF INSANITY. 641 The position of the Pennsylvania court as above outlined is the accepted rule in other jurisdictions as is shown by the following cases: McKenzie v. State, 26 Ark. 334; State v. Smith, 53 Mo. 267; State v. Fetter, 32 Iowa, 50; People v. McDonnell, 47 Cal. 134; State v. Starling, 51 K C. 366; State v. Lawrence, 57 Me. 574; Loeffner v. State, 10 Ohio St. 599; 2 G-reenl. Ev. § 373; Whart Horn. § 665. § 401. Attitude of the New York Court.— "An act done by a person who is an idiot, imbecile, lunatic or insane, is not a crime. A person cannot be tried, sentenced to any punishment or pun- ished for crime when he is in a state of idiocy, imbecility, lunacy or insanity so as to be incapable of understanding the proceeding or making his defense. A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as either, 1. Xot to know the nature and quality of the act he was doing; or 2. Not to know that the act was wrong." JS T . Y. Penal Code, §§20, 21.^ Any evidence tending to show the presence of sufficient mental capacity to distinguish between right and wrong is relevant as it is well settled that if the will power is not overthrown by disease, there is criminal responsibility. Mere weakness of intellect will not shield one who commits a crime. Goodiuin v. State, 96 Ind. 551; Wartena v. State, 105 Ind. 445; Warner v. State, 114 Ind. 137. So, it is not error for the court to inform the jury that the evi- dence on the subject of mental capacity might be considered by them for the purpose of determining the mental status and capacity of the defendant. Conway v. State, 118 Ind. 483. Where a previous condition of insanity is shown, the prosecu- tion may show that the crime charged in the indictment was com- mitted during a lucid interval. People v. Montgomery, 13 Abb. Pr. X. S. 207. The New York rules have been generally adopted, and where the evidence shows the accused to be capable of discriminating between right and wrong, responsibility attaches. The theory that he is without power to control his actions no longer prevails. Walker v. People, 88 N. Y. 86; Kearney v. People, II Colo. 258; People v. Coleman, 1 N. Y. Crim. Rep. 1; United States v. 41 642 LAW OF EVIDENCE IN CRIMINAL CASES. Faulkner, 35 Fed. Rep. 730; Casey v. People, 31 Hun, 158;. State v. Potts, 100 K C. 457; People v. Walworth, 4 N. Y. Crim. Rep. 355; State v. Howry, 37 Kan. 369; People v. Camel, 2 Edm. Sel. Cas. 200; Cunningham v. £tote, 56 Miss. 369, 21 Am. Rep. 360; Willi**. People, 32 K Y. 715; £tote v. Bundy, 24 S. C. 439, 58 Am. Rep. 263; Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731; United States v. Young, 25 Fed. Rep. 710,7 Crim. L. Mag. 732; Wagner v. People, 2 Keyes, 684; ^afe v. L< wis, (Nev.) 12 Crim. L. Mag. 72; People v. TH///.-, 50 How. Pr. 204; PZe v. J^bp< >siti< >n be examined a moment. Knowledge that the act was contrary to the law of the land is here given as a test; that is. such knowledge is assumed to be the measure of mental capacity sufficient to entertain a criminal intent. By what possi- ble means, it may be asked, can that test or measure be applied, without first finding out whether the prisoner, in fact, knew what EVIDENCE OF INSANITY. 647 the law of the land was ? How could a jury say whether a man knew, or did not know, that an act was contrary to the law of the land, without first ascertaining whether he knew what the law was? . . . "In answer to the second and third questions, which relate to the terms in which the matter should be left to the jury, the judges say that ' to establish a defense on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, he did not know he was doing what was wrong.' "Suppose, now, an insane man does an act which he knows to be contrary to law, because from an insane delusion (if that term amounts to anything more than the single term insanity) he believes it to be right notwithstanding the law, that the law is wrong, or that the peculiar circumstances of the case make it right for him to disregard it in this instance: how are these two rules to be reconciled ? It would seem to be plain that they are in hopeless conflict, and cannot both stand. . . . " The answer to the fourth question introduces a doctrine which seems to me very remarkable, to say the least. The question was: ' If a person, under an insane delusion as to existing facts, com- mits an offense, is he thereby excused % ' To which the answer was as follows: ' On the assumption that he labors under partial delusion only, and is not in other respects insane, he must be con- sidered in the same situation, as to responsibility, as if the facts, with respect to which the delusion exists, were real. For example: if, under the influence of delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in self-defense, he would be exempt from punishment. If his delusion was, that the deceased had inflicted a serious injury to his character or fortune, and he killed him in revenge for such supposed injury, he would be liable to punish- ment.' b. The Result Examined.— "The doctrine thus promulgated as law has found its way into the text-books, and bus doubtless been largely received as the enunciation of a sound legal principle since that day. Yet it is probable that no ingenious studenl of the law ever read it for the first time without being shocked by 648 LAW OF EVIDENCE IN CRIMINAL CASES. its exquisite inhumanity. It practically holds a man confessed to- be insane, accountable for the exercise of the same reason, judg- ment, and controlling mental power, that is required of a man in perfect mental health. It is, in effect, saying to the jury, the prisoner was mad when he committed the act, but he did not use sufficient reason in his madness. He killed a man because, under an insane delusion, he falsely believed the man had done him a great wrong which was giving rein to a motive of revenge, and the act is murder. If he had killed a man only because, under an insane delusion, he falsely believed the man would kill him if he did not do so, that would have been giving rein to an instinct of self-preservation, and would not be crime. It is true, in words, the judges attempt to guard against a consequence so shocking, as that a man may be punished for an act which is purely the off- spring and product of insanity, by introducing the qualifying phrase, ' and is not in other respects insane.' That is, if insanity produces the false belief, which is the prime cause of the act, but goes no further, then the accused is to be judged according to the character of motives which are presumed to spring up out of that part of the mind which has not been reached or affected by the delusion or disease. This is very refined. It may be that mental disease sometimes takes a shape to meet the provisions of this in- genious formula, or, if no such case has never yet existed, it is doubtless within the scope of omnipotent power hereafter to strike with disease some human mind in such peculiar manner that the conditions will be fulfilled; and when that is done, when it is cer- tainly known that such a case has arisen, the rule may be applied without punishing a man for disease. That is, when we can cer- tainly know that, although the false belief on which the prisoner acted was the product of mental disease, still, that the mind was in no other way impaired or affected, and that the motive to the act did certainly take its rise in some portion of the mind that was vet in perfect health, the rule may be applied without any apparent wrong, but it is a rule which can be safely applied in practice, that we are seeking, and to say that an act which grows wholly out of an insane belief that some great wrong has been inflicted, is at the same time produced by a spirit of revenge springing from some portion or corner of the mind that has not 1mm m reached by the disease, is laying down a pathological and psychological fact which no human intelligence can ever know to EVIDENCE OF INSANITY. 649 be true, and which, if it were true, would not be law, but pure matter of fact. !No such distinction ever can or will be drawn in practice; and the absurdity as well as inhumanity of the rule seems to me sufficiently apparent without further comment. c Worthlessness of the Conclusion Shown. — '*To form a correct estimate of the value of these answers, we have only to suppose that, at the end of a criminal trial where the defense is insanity, they be read to the jury for their guidance in determin- ing the question with which they are charged. Tried by this practical test, it seems to me they utterly fail: and the reason of the failure, as I think, is, that it was an attempt to lay down as law that which, from its very nature, is essentially matter of fact. It is a question of fact whether any universal test exists, and it is also a question of fact what the test is, if any there be. " The efforts of text-writers to extract a rule from the cases have not, in my judgment, been more successful. See 1 Russell Crimes, 13; Koscoe, Crim. Ev. 944." American jurisprudence has of necessity been powerfully influ- enced by English models, especially in the formative period of its existence, where a compressed abstract of some English case was considered absolutely essential to impart a base of respectability and legal parentage to the decision. It followed, as obviously it must, that many of these early cases are beyond the countenance of either precedent or statute, and are besieged by errors ancient, inveterate, traditional and accidental, but all characteristic of their origin. The obstinacy with which some of our early jurists con- tended against the legal innovation upon accredited methods in- duced them to carry to the verge of eccentric caprice every dictum that had an alleged or reputed claim to English antecedents. And while it is true that this Anglo-maniac subserviency lias largely passed away, traces of its early ascendency are still discernible in the lax and illogical reasonings that led to the indorsement of the McNaijhbn Case. The only astonishment is that the reaction should have been so long delayed. There was nothing whatever in the early training of an English judge bred in the era of George IV., that would impart the least respect to his opinions upon a profound and per- plexing problem involving erethistic conditions but imperfectly understood even by the most advanced psychologists. It was never a proper proposition for the judges and no other 650 LAW OF EVIDENCE IN CRIMINAL CASES. debating club at Rugby or Eaton would ever have thought of establishing a precedent by such means. d. Practical Repudiation of the McXaghten Case by Eng- lish Jurists. — So great, it may be added, are the embarrass- ments growing out of the old rule, as expounded by the judges in the House of English Lords, that in March, 1874, a bill was brought before the House of Commons, supposed to have been draughted by the learned counsel for the queen, Sir Fitzjames Stephen, which introduced into the old rule the new element of an absence of the power of self-control, produced by diseases affecting the mind; and this proposed alteration of the laws was cordially recommended by the late Chief Justice Cockburn, his only objection being that the principle was proposed to be limited to the case of homicide. 1 Whart. Am. Crim. L. (9th ed.) p. 66, § 45, note 1; Browne, Insanity, § 10, note If Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193. If we leave the English rule, where it seems to be left by these authorities, I think an examination of the American cases will not lead to any more satisfactory result. § 404. Early Views of the Massachusetts Court. — In Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, Shaw, Ch, J., instructed the jury that "a person is not responsible for any criminal act he may commit, if. by reason of mental infirmity, he is incapable of distinguishing between right and wrong in regard to the particu- lar act, and of knowing that the act itself will subject him to pun- ishment; or has no will, no conscience, or controlling mental power; or has nut sufficient power of memory to recollect the rela- tions in which he stands to others, and in which they stand to him or lias his reason, conscience and judgment so overwhelmed by the violence of disease as to act from an uncontrollable impulse." Here seems to be four distinct tests. The first is substantially that given by Lord Denman in Reg. v. Oxford, 9 Car. & P. 525, but with one most important qualification added, namely, knowl- that the act will subject him to punishment. But how can it be said that such knowledge constitutes one of the links in a chain of conclusive evidence, that it is one fact in a chain of facts from which that degree of insanity which will excuse a person from crime is to be conclusively found? If that be so, then certainly a legal quality, effect or significance i- given to it by it- position in the chain, which no one would EVIDENCE OF INSANITY. 051 ever think it possessed when standing alone. The desire for re- venge may be so strong as to outweigh the fear of a punishment which a man without any mental disease knows must follow his act. But the rule is, that, in addition to the knowledge of right and wrong in respect to the particular act, the accused must have been capable of knowing that the act itself would subject him to punishment. It is, doubtless, true that ability to know that a certain act will be followed by punishment, furnishes evidence of the mental condition. So would knowledge of any other fact in law or sci- ence. But I can see no more reason for holding that such knowl- edge is any part of a legal test of capacity to commit crime, than for holding that knowledge of the cause of an eclipse is entitled to the same effect. The second rule relates to a case where there can be no doubt, where the will, the conscience and the controlling mental power are all gone ; and the fourth is substantially the same, where the reason, conscience and judgment are so overwhelmed by the vio- lence of disease, that he acts from uncontrollable impulse. There can be no very appreciable legal distinction between a person who has no will, no conscience, or controlling mental power, and one whose reason, conscience and judgment are so overwhelmed by the violence of disease as to act from an uncontrollable impulse. In both cases it is an act in which reason, conscience, judgment and will do not participate ; in a word, it is the product of men- tal disease. Power of memory sufficient to recollect the relations in which he stands to others and in which others stand to him, which is given as the third test, seems to me no more a legal criterion than power of memory to recollect any other fact which a healthy mind would be expected to remember, and such power of memory or its lack would be a fact, like other facts, for the jury to weigh in judging whether he had the mental capacity to entertain a criminal intent. There is no doubt but these instructions of the learned and eminent chief justice of Massachusetts have been largely followed in cases since tried in this country, but the course has been by no means uniform, as we shall see. § 405. New York and Pennsylvania Cases Considered.— In New York and Pennsylvania, in the two leading cases of G52 LAW OF EVIDENCE IN CRIMINAL CASES. Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216, and Com. v. Mosler, 4 Pa. 2(37, capacity to distinguish right from wrong was given as the naked test. But in neither of those states has the rule thus laid down been followed with uniformity. In the trial of Huntington for forgery, iti Xew York City, in 1856, Judge Capron said to the jury: "To constitute a complete defense, in- sanity, if partial, as monomania, must be such in degree as to wholly deprive the accused of reason in regard to the act with which he is charged, and of the knowledge that he is doing wrong in committing it." And the remarks of Edmonds, J., in the ear- lier case of People v. Kleim, 1 Edm. Sel. Cas. 13, are wholly at war with any such rule as that promulgated in Freeman v. People, supra. He says : " The moral as well as the intellectual faculties may be so disordered by the disease as to deprive the mind of its controlling and directing power, and that he must know the act to be wrong and punishable, and be able to compare and choose between doing it and not doing it." In Pennsylvania, in Com. v. Knepley (1850) knowledge of right and wrong in regard to the particular act was given as the test; and in Com. v. Haskell, 2 Brewst. 491, the judge charged that "the true test lies in the word 'power.' Has the defendant, in a criminal case, the power to distinguish right from wrong, and the power to adhere to the right and avoid the w rong ? " It would probably not be far out of the way to say that the number of American cases where knowledge of right and wrong in the abstract, and knowledge of the nature and quality of the act — that it was wrong — have been given as the test, is about equal to the tendency of late years to the latter form, while it will appear that, in almost every case where any rule has been given on the subject, it has been modified and explained to meet the facts of the particular case, or to carry out the personal views of the judge on the matter of insanity. § 406. Instances where all Tests have been Discarded. — But there are not wanting cases where all tests have been dis- carded. In Statt v. Ft Iter, 25 Iowa, 67, Dillon, Ch. J., says: "The jury, in substance, should be told that if the defendant's act in taking the life of his wife was accused of mental disease or un- dness, which dethroned his reason and judgment with respect to that act. which destroyed his power rationally to comprehend the nature and consequences of that act, and which, overpowering EVIDENCE OF INSANITY. 653 his will, irresistibly forced him to its commission, then he is not amenable to legal punishment. But if the jury believe, from all the evidence and circumstances, that the defendant was in posses- sion of a rational intellect and sound mind, and allowed his pas- sions to escape control, then, though passion may for the time being have driven reason from her seat and usurped it, and have urged the defendant, with a force at the moment irresistible, to desperate acts, he cannot claim for such acts the protection of insanity." And in Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 9 Am. Reg. N. S. 530, which was an indictment for murder, and the defense insanity, an instruction to the jury that, if they believed the defendant knew the difference between right and wrong in respect to the act in question, if he was conscious that such act was one which he ought not to do, he was responsible, was held erroneous. In the course of his opinion in that case, Gregory, J., speaking of the charge in Com. v. Bayers, 7 Met. 500, 41 Am. Dec. 458, said : " It is by no means clear, and we think it is not entitled to the weight usually awarded it." Very much to the same effect was State v. Spencer, 21 N. J. L. 196, Hornblower, Ch. J., said : " In my judgment the true ques- tion to be put to the jury is, whether the prisoner was insane at the time of committing the act, and in answer to that question there is little danger of a jury giving a negative answer, and con- victing a prisoner who is proved to be insane on the subject-mat- ter relating to or connected with the criminal act, or proved to be so far or so generally deranged as to render it difficult or almost impossible to discriminate between his sane and insane acts." State v. Jones, 50 N. H. 369, 9 Am. Rep. 242. § 407. Delaware Adopts the New Hampshire View. — The Delaware supreme court, after a struggle with its instincts, adopted the New Hampshire view, and holds that the true test is not, as sometimes laid down, the capacity merely to distinguish between the rightfulness and wrongfulness of the act committed, but also sufficient will power to choose whether he shall do or refrain from doing it. After referring to many cases upon the same sub- ject, the learned judge proceeded to say: "We do not perceive that there is any very great difference in all these cases, the aim of all seeming to be to define a state of mind in which the pris- oner is capable of the perception or consciousness of right and 651 LAW OF EVIDENCE IN CKTMINAL CASES. wrong as applied to the act he is about to commit, and has the ability, through that consciousness, to choose, by an effort of the will, whether he will do the deed which he knows to be wrong." In his report of the case, the words quoted are italicised by him to show the approval of the court of the definition of "sanity," which as before said, is knowledge of the rightfulness or wrongfulness of the contemplated action, — the power to decide against doing the wrongful deed. State v. Reidell (Del.) May 18, 1888. § 108. The Right and Wrong Test in Formulas.— There are some obiter dicta which would seem to evidence an intention to shroud this doctrine in doubt, or to hamper it with conditions subversive of its clearness and efficacy. There is no occasion however for this obscurity. The rule generally in vogue may be formulated as follows : " The true test of criminal responsibility where the defense of insanity is interposed to an indictment, is whether the evidence shows that the accused had sufficient reason to know right from wrong." Upon this simple test has been engrafted an entirely different proposition. It is this : " and in addition to this knowledge, has he sufficient power of control to govern his actions?" Satisfactory evidence of this last is a diffi- cult matter to obtain. The extent to which a person can control his actions under all the varying impulses aroused by passion, fear, avarice or religious frenzy, is a delicate determination. Frequently to reach a proper conclusion expert medical testimony is required, and such testimony too frequently ' k leads to bewilder and dazzles to betray." When an expert is called on to determine whether the mind is diseased to such an extent as to make the person an irresponsible being, the task is much more difficult. Especially is this true where the opinion must be formed and based upon a hypothetical question alone. In such case, it seems to us that the opinion must, of necessity, be mere theory. This is not the fault of the profession, but because more than human intelligence is required to solve the problem. This right and wrong test has been a persistent subject of attack. Seldom if ever in a capital case is the ingenuity of the counsel for the accused more strenuously exerted than in the attempt to inject into the general defense of insanity the theory, Borne mysterous pressure to the commission of the acts, the con- sequence of which he anticipates but cannot avoid. EVIDENCE OF INSANITY. 655- "Whatever medical or scientific authority there may be for this view, it has not been accepted by courts of law. The vagueness and uncertainty of the injury which would be opened, and the manifest danger of introducing the limitation claimed into the rule of responsibility, in cases of crime, may well cause courts to pause before assenting to it. Indulgence in evil passions weakens the restraining power of the will and conscience; and the rule suggested would be the cover for the commission of crime and its justification. The doc- trine that a criminal act may be excused upon the notion of an irresistible impulse to commit it. where the offender lias the ability to discover his legal and moral duty in respect to it, lias no place in the law. Every crime was committed under an influence of such a description, and the object of the lav,' is to compel people to control these influences. The doctrine of irresponsibility tor a crime committed by a person who had sufficient mental capacity to comprehend the nature and quality of his act, and to know that it was wrong, on the ground that he had not the power to control his action, has not met with favor in the adjudications in the state of New York. Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731. § 409. Liberal Views of the Alabama Supreme Court.— I shall elaborate the treatment of this subject with the following- extended extracts from the exceptionally able opinion of Mr. Justice Somervillein Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193. Taken together with the dissenting opinion of ( 1 h ief Justict Stone in the same case, there is a presentation of the topic under review, that seems to exhaust the subject. Few opinions even from this able court are so freighted in logical exposition, keen and discriminating analysis, extended collation of author- ity and scholarly research. Especially is this true when we reflect that of all medico-legal questions those connected with insanity are the most difficult and perplexing. State v. Fetter, 25 Iowa, 67. Judge Somerville says: "We do not hesitate to say that we reopen the discussion of this subject with no little reluctance, having long hesitated to disturb our past decisions on this branch of the law. Nothing could induce us to do so except an imperious sense of duty, which bus been excited by a protracted investiga- tion and study, impressing our minds with the conviction that the 656 LAW OF EVIDENCE IN CRIMINAL CASES. law of insanity as declared by the courts on many points, and especially the rule of criminal accountability, and the assumed tests of disease, to that extent which confers legal irresponsibility, have not kept pace with the progress of thought and discovery in the present advanced stages of medical science. Though* science has led the way, the courts of England have declined to follow, as shown by their adherence to the rulings in McNagliteri 's Case, 10 Clark & F. 200, emphasized by the strange declaration made by the lord chancellor of England, in the house of lords, on so late a day as March 11, 1862, that 'the introduction of medical opinions and medical theories into this subject has proceeded upon the vicious principle of considering insanity as a disease.' a. As to Medical Experts. — "It is obvious that the courts cannot upon any sound principle undertake to say what are the invariable or infallible tests of such disease. The attempt has been repeatedly made, and has proved a confessed failure in practice. ' Such a test,' says Mr. Bishop, has never been found, not because those who have searched for it have not been able and diligent, but because it does not exist.' 1 Bishop, Crim. L. (7th ed.) § 381. In this conclusion, Dr. Ray, in his learned work on the medical jurisprudence of insanity, fully concurs. Ray, Insanit}', 39. The symptoms and causes of insanity are so variable, and its pathology so complex, that no two cases may be just alike. 'The fact of its existence,' says Dr. Ray, 'is never established by any single diagnostic symptom, but by the whole body of symptoms, no particular one of which is present in every case.' Ray, Insanity, § 21. Its exciting causes being moral, psychical and physical, are the especial subjects of specialists' study. What effect may be exerted on the given patient of age, sex, occupation, the seasons, personal surroundings, hereditary transmission and other causes, is the subject of evidence based on investigation, diagnosis, observation and experiment. Peculiar opportunities, never before enjoyed in the history of our race, are offered in the present age for the ascertainment of these facts, by the establishment of asylums for the custody and treatment of the insane, which Christian benevolence and statesmanship have substituted for jails and gibbets. The testimony of these experts (Miller as they may in many doubtful cases) would seem to be the best which can be obtained, however unsatisfactory it may be in some respects. . . . EVIDENCE OF INSANITY. 657 "In Bucknill on Criminal Lunacy, page 59, it is asserted as 'the result of observation and. experience, that in all lunatics, and in the most degraded idiots, whenever manifestations of any mental action can be educed, the feeling of right and wrong may be proved to exist.' " 'With regard to this test,' says Dr. Eussell Reynolds, in his work on the Scientific Value of the Legal Tests of Insanity (London, 1872), p. 34, ' I may say, and most emphatically, that it is utterly untrustworthy, because untrue to the obvious facts of nature.' "In the learned treatise of Drs. Bucknill and Tuke on Psycho- logical Medicine (4th ed. London, 1879), p. 269, the legal tests of responsibility are discussed, and the adherence of the courts to the right and wrong test is deplored as unfortunate, the true principle being stated to be, 'whether, in consequence of con- genital defect or acquired disease, the power of self-control is absent altogether, or is so far wanting as to render the individual irresponsible.' It is observed by the authors: 'As has again and again been shown, the unconsciousness of right and wrono- is one thing, and the powerlessness through cerebral defect or disease to do right is another. To confound them in an asylum would have the effect of transferring a considerable number of the inmates thence to the treadmill or the gallows.' "Dr. Peter Bryce, superintendent of the Alabama Insane Asylum for more than a quarter century past, alluding to the moral and disciplinary treatment to which the insane inmates are subjected, observes: 'They are dealt with in this institution, as far as it is practicable to do so, as rational beings; and it seldom happens that we meet with an insane person who cannot be made to dis- cern, to some feeble extent, his duties to himself and others, and his true relations to society.' Sixteenth Annual Report Alabama Insane Hospital (1876) p. 22; Biennial Report (18S6) pp. 12 L8. " Other distinguished writers on the medical jurisprudence of insanity have expressed like views, with comparative unanimity. And nowhere do we find the rule more emphatically condemned than by those who have the practical care and treatment of the insane in the various lunatic asylums of avcry civilized country. A notable instance is found in the following resolution unani- mously passed at the annual meeting of the British Association of Medical Officers of Asylums and Hospitals for the Insane, held 42 658 LAW OF EVIDENCE IN CRIMINAL CASES. in London, July 14, 1S64, where there were present fifty-four medical officers : " '■Resolved, That so much of the legal test of the mental con- dition of an alleged criminal lunatic as renders him a responsible agent, because he knows the difference between right and wrong, is inconsistent with the fact, well known to every member of this meeting, that the power of distinguishing between right and wrong exists very frequently in those who are undoubtedly insane, and is often associated with dangerous and uncontrollable delusions.' Ordronaux, Judicial Aspects of Insanity (1877) 423, 424. "These testimonials as to a scientific fact are recognized by intel- ligent men in the affairs of every-day business, and are constantly acted on by juries. They cannot be silently ignored by judges. Whether established or not, there is certainly respectable evidence tending to establish it, and this is all the courts can require. "Nor are the modern law writers silent in their disapproval of the alleged test under discussion. It meets with the criticism or condemnation of the most respectable and advanced in thought among them, the tendency being to incorporate in the legal rule of responsibility ' not only the knowledge of good and evil, but the power to chose the one and refrain from the other.' Browne, Insanity, §§ 13, 18, et seq.; Ray, Insanity, §§ 10-19; "Whart. & S. Medical Jurisprudence, § 59; 1 Whart. Am. Crim. L. (9th ed.) §§ 33, 43, 45; 1 Bishop, Crim. L. (7th ed.) § 386, et seq.; Ordro- naux, Judicial Aspects of Insanity (1877) 419; 1 Greenl. Ev. § 372; 1 Stephen, Hist. Crim. L. § 168; 4 Am. L. Eev. 236, et seq." b. But Three Questions for the Jury. — In conclusion of this branch of the subject, that we may not be misunderstood, we think it follows very clearly from what we have said, that the inquiries to be submitted to the jury then, in every criminal trial where the defense of insanity is interposed, are these: 1. Was the defendant at the time of the commission of the alleged crime, as matter of fact, afflicted with a disease of the mind, so as to be either idiotic or otherwise insane? 2. If such be the case, did he know right from wrong as applied to the particular act in question ? If he did not have such knowl- edge he is not legally responsible. 3. If he did have such knowledge, he may nevertheless not be EVIDENCE OF INSANITY. 659 leg-ally responsible if the two following conditions concur: (1) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed. (2) And if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely. c. Modification of the Rule in Boswell's Case.— The rule announced in Boswell v. State, 63 Ala. 308, 35 Am. Rep. 20, is in conflict with the foregoing conclusions, and to that extent is declared incorrect, and is not supported by the opinion in that case otherwise than by dictum,. "We adhere however to the rule declared by this court in Bos- well's case, and followed in Ford v. State, 71 Ala. 385, holding that when insanity is set up as a defense in a criminal case, it must be established to the satisfaction of the jury, by a prepond- erance of the evidence; and a reasonable doubt of the defendant's sanity, raised by all the evidence, does not authorize an acquittal. d. "Right and Wrong" Test Denounced. — The leading writ- ers on medical jurisprudence and insanity do not look with favor on the right and wrong test. See "Wharton & Stille, Beck, Dean, and Taylor's works on Medical Jurisprudence, Ray on Insanity, and Browne on Medical Jurisprudence of Insanity. The American authorities differ somewhat, and in most cases very widely. In People v. Kleirrv, an early case in this state, Judge Edmonds charged the jury: "If some controlling disease was in truth the acting power within him, which he could not resist, or if he had not sufficient use of his reason to control the passions which promoted him, he is not responsible. But it must be an absolute dispossession of the free and natural agency of the mind. . . . If he have not intelligence enough to have a criminal intent and purpose, and if his moral and intellectual powers are either so deficient that he has not sufficient will, conscience or controlling mental power, or if, through the overwhelming violence of mental diseases, his intellectual power is for the time obliterated, he is not a responsible moral agent." People v. Kleim, I Edm. Sel. Cas. 13. "The question will be whether the disease existed to so high a degree that for the time being it overwhelmed the reason, con- 660 LAW OF EVIDENCE IN CRIMINAL CASES. science and judgment, and whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse; if so, then the act was not the act of a voluntary agent, but the involuntary act of the body without the concurrence of a mind directing it." Com. v. Rogers, 1 Bennett & Heard, Lead. Crim. Cas. (2d ed.) 87, 7 Met. 500, 41 Am. Dec. 458. See Free- man v. People, 4 Denio, 9, 47 Am. Dec. 216; Cole's Case, 7 Abb. Pr. K S. 321. In People v. MeFarland, 8 Abb. Pr. K S. 57, Recorder Hack- ett defined the state of sanity of a party who is accused of a crim- inal act to be that in which a man knows the act he is committing to be unlawful and morally wrong and he has not reason sufficient to apply such knowledge, and to be controlled by it;" "and the state of insanity in a similar case as that in which a man does not know the act he is committing to be unlawful and morally wrong, and he has not reason sufficient to apply such knowledge, and to be controlled by it." People v. MeFarland, supra. See also People v. McCarm, 16 K Y. 58, 69 Am. Dec. 642 (prisoner enti- tled to an acquittal if there be a reasonable doubt as to his sanity); Com. v. Mosler, 4 Pa. 267 (where the court recognizes homicidal insanity as an excuse for crime). See Huntingdon's Case, pamphlet. In the case of Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, the supreme court of that state held that where a person is moved to the commission of an unlawful act by an insane impulse con- trolling his will and his judgment, he is not guilty of a crime, and the court held to be erroneous a charge to the jury that if they believed from the evidence "that the defendant knew the differ- ence between right and wrong in respect to the act in question, if lie was conscious that such act was one which he ought not to do, and if that act was at the same time contrary to the law of the state, then he is responsible for his acts." In the important case of Smith v. Com. 1 Duv. 225, the court, after a very exhaustive discussion of the subject of insanity, held to be correct an instruction to the jury that "the true test for responsibility is whether the accused had sufficient reason to know right from wrong, and whether or not he had sufficient power of control to govern his actions." This instruction which was taken from the case of Graham v. Com. 16 B. Mon. 591, and approved by tiie Kentucky court of appeals, is the precise request which in the above case the recorder refused to charge the jury. EVIDENCE OF INSANITY. 661 "The true test lies in the word 'power.' Has the defendant in a criminal case the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong. Has the defendant, in addition to the capacities mentioned, the power to govern his mind, his hody and his estate." Com. v. Haskell, 2 Brewst. 491, 4 Am. L. Rev. 240. See also State v. Pike, 49 N. H. 399, 6 Am. Eep. 533, 4 Am. L. Rev. 245. The result is that the "right and wrong test," as it is sometimes called, which, it must be remembered, itself originated with the medical profession in the mere dawn of the scientific knowledge of insanity, has been condemned by the great current of modern medical authorities, who believe it to be "founded on an ignorant and imperfect view of the disease." 15 Enc. Brit. (9th ed.) title Insanity; Pat-sons v. State, 81 Ala, 577, 60 Am. Rep. 193. e. Rule of the French and German Criminal Codes Stated. — The Code of France provides: "There can be no crime or offense if the accused was in a state of madness at the time of the act." For some time the French tribunals were inclined to interpret this law in such a manner as to follow in substance the law of England. But that construction has been abandoned, and the modern view of the medical profession is now adopted in that country. The criminal code of Germany contains the following provision which is said to have been the formulated result of a very able discus-ion by both the physicians and lawyers of that country: "There is no criminal act when the actor at the time of the offense is in a state of unconsciousness, or morbid disturbance of the mind, throuo-h which the free determination of his will is excluded." 9 Enc. Brit. (9th ed.), citing Crim. Code, Germany, § 51, R. G. B. Parsons v. State, supra. f. Dissenting Views of Chief Justice Stone. — Chief Justice Stone in his dissenting opinion in this highly instructive case of Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, note, summarizes his views on this question of insanity as follows : "1. Insanity, when relied on as a defense to a prosecution for crime, is a mixed question of law and fact. "2. It is a perfect defense to an accusation of crime, if the ac- cused, at the time he committed the act, was afflicted with a men- tal disease to such extent as to render him incapable of determin- ing between right and wrong, or of perceiving the true nature and quality of the act done. 002 LAW OF EVIDENCE IN CRIMINAL CASES. "3. "When it is satisfactorily shown that the accused was men- tally diseased at the time he did the act charged as an offense, and that he did the act in consequence solely of such mental disease, without which it would not have been done, this is a complete defense, even though the defendant knew the act was wrong. "4. When at the time of committing the act charged, the defendant was laboring under a disease of the mind, known as delusion, illusion, or hallucination, and the act done was solely the result of such mental disease, connected with and growing out of it as effect follows cause, and without which the act would not have been done, the defendant should be acquitted on the plea of insanity. Whart. Crim. Ev. § 336; 2 Greenl. Ev. § 372. "5. No form of moral or emotional insanity is a defense against criminal accusation. ******** * * * * "I differ with my brother Somerville in the interpretation of some of the legal authorities he relies on as supporting his views, and as to others, in the estimate he places upon them as authority. This court has repudiated the doctrine of moral insanity as a defense for conduct otherwise criminal; and we hold that insanity is a defense to be affirmatively established by proof. It is not enough that a reasonable doubt of sanity is engendered. Boswell v. State, 63 Ala. 307, 35 Am. Eep. 20; Ford v. State, 71 Ala. 385. Of the judicial authorities relied on by him, the following cases hold that the defense of insanity is made good, if the testimony raises a reasonable doubt of its existence. Some of them go so far as to hold that when any evidence of insanity is produced, the burden is then cast on the prosecution to establish sanity be- yond a reasonable doubt. State v. Jones, 50 N. H. 309, 9 Am. Rep. %4%;Bradley v. State, Zl Ind. 492; Hopps v. People, 31 111. 385, 83 Am. Dec. 231; Cunningham v. State, 56 Miss. 269, 21 Am. Eep. 360; State v. Johnson, 40 Conn. 130." The learned judge proceeds to dissect the cases bearing upon the subject, and the practitioner who is confronted with any prob- lem associated with the topic of insanity would do well to consult the following cases : State v. Felter, 25 Iowa, 08; State v. Hock- ett, 70 Iowa, 442; Hopps v. People, supra,' Dunn v. People, 109 111. 635; Chase v. People, 40 111. 353; Bradley v. State, 31 Ind. 492; Walker v. State, 102 Ind-. 502; Harris v. State, 18 Tex. App. l>-7; Smith v. Com. 1 Duv. 224; Kriel v. Com. 5 Bush, 302; Can- EVIDENCE OF INSANITY. G63 -ningham v. State, 56 Miss. 269, 21 Am. Rep. 360; United States v. McGlue, 1 Curt. C. C. 1; Com. v. Rogers, 7 Met. 500, 41 Am. Dee. 458; Dejarnette v. Com. 75 Ya. 867; Cbyfe v. <7. where he fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive but sincere belief that what he is doing is by the command of a supe- rior power, which supersedes all human law 7 s and the laws of nature." But the insane delusion, according to all testimony, seems to be an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or, at least, impossible under the circumstances of the individual. A man, with no rea- son for it, believes that another is attempting his life, or that he himself is the owner of untold wealth, or that he has invented something which will revolutionize the world, or that he is presi- dent of the United States, or that he is God or Christ, or that he is dead, or that he is immortal, or that he has a glass arm, or that he is pursued by enemies, or that he is inspired by God to do something. In most cases, as I understand it, the fact believed is something affecting the senses. It may also concern the relations of the party with others. But generally the delusion centers around himself, his cares, sufferings, rights and wrongs. It comes and independently of the exercise of will and reason, like the phantasms of dreams. It is, in fact, the waking dream of the EVIDENCE OF INSANITY. 669 insane, in which facts present themselves to the mind as real, just as objects do to the distempered vision in delirium tremens. The insane delusion does not relate to mere sentiments or theo- ries or abstract questions in law, politics, or religion. All these are the subjects of opinions, which are beliefs founded on reason- ing and reflection. These opinions are often absurd in the extreme. Men believe in animal magnetism, spiritualism, and other like matters, to a degree that seems unreason itself, to most other people. And there is no absurdity in relation to religious, political, and social questions that has not its sincere supporters. These opinions result from naturally weak or ill-trained reason- ing powers, hasty conclusions from insufficient data, ignorance of men and things, credulous dispositions, fraudulent imposture, and often from perverted moral sentiments. But still, they are opin- ions, founded upon some kind of evidence, and liable to be changed by better external evidence of sounder reasoning. But they are not insane delusions. f. Unsworn Declarations of the Accused. — The prisoner's unsworn declarations, since the assassination, on this subject, in his own favor, are, of course, not evidence, and are not to be con- sidered by you. A man's language, when sincere, may be evi- dence of the condition of his mind when it is uttered, but it is not evidence in his favor of the facts declared by him, or as to his previous acts or condition. He can never manufacture evidence in this way in his own exoneration. It is true that the law allows a prisoner to testify in his own behalf, and thereby makes his sworn testimony on the witness stand legal evidence, to be received and considered by you, but it leaves the weight of that evidence to be determined by you also. I need hardly to say to you that no verdict could safely be ren- dered upon the evidence of the accused party only, under such circumstances. If it were recognized, by such verdict, that a man on trial for his life could secure an acquittal by simply testifying himself, that he had committed the crime charged under a delu- sion, an inspiration, an irresistible impulse, this would be to pro- claim in universal amnesty to criminals in the past, and an unbounded license for the future, and the courts of justice might as well be closed. It must be perfectly apparent to you that the existence of such 670 LAW OF EVIDENCE IN CRIMINAL CASES. a delusion can be best tested by the language and conduct of the party immediately before and at the time of the act. And while the accused party cannot make evidence for himself by his subsequent declarations, on the other hand, he may make evidence against himself, and, when those declarations amount to admissions against himself, they are evidence to be considered by a jury. And I have dwelt upon the question of insane delusion, simply because evidence relating to that is evidence touching the defend- ant's power, or want of power, from mental disease, to distinguish between right and wrong, as to the act done by him, which is the broad question for you to determine, and because that is the kind of evidence on this question which is relied on by the defense. g. The Test of Criminal Responsibility. — But the only safe rule for you is to direct your reflections to the one question which is the test of criminal responsibility, and which has been so often repeated to you, viz: whether, whatever may have been the pris- oner's singularities and eccentricities, he possessed the mental capacity, at the time the act was committed, to know that it was wrong, or was deprived of that capacity by mental disease. Hence the importance of viewing the moral as well as intellect- ual side of the man, in the effort to solve the question of sanity. That evidence on this subject is proper was held by the supreme judicial court of New Hampshire in State v. Jones, 50 N. H. 369,. 9 Am. Kep. 242, Judge Ladd said: '"The history of the defendant and evidence of his conduct at various times during a period of many years before the act for which he was tried, tending to show r his temper, disposition, and character, were admitted against his objection. It was for the jury to say whether the act was the product of insanity, or the naturally malignant and vicious heart. The condition of the man's mind, whether healthy or diseased, was the very matter in issue. This must be determined in some way or other from externa] manifestations as exhibited in his conduct. To know whether an act is the product of a diseased mind it is important to ascertain, if possible, how the same mind acts in a state of health. The condition of sanity or insanity shown to exist at one time is presumed to continue. For these reasons and others, which I have not thought it necessary to enlarge upon, it would seem that evidence to show defendant's mental and moral charac- EVIDENCE OF INSANITY. 671 ter and condition for many years before the act, was properly received." The London Lancet of December 12. 1881, a periodical well known to the medical profession of both England and America commenting upon insanity as a defensive plea refuse.- to admit the theory of moral insanity and denies it the least professional countenance. The writer says: "We fancied the 'plea of insan- ity' had been reduced to absurdity in the ridiculous attempt made to show that Lefroy was insane; but it seems that the apotheosis of stupidity is to take place in America. It is high time the non- sense recently talked and written about 'irresponsibility' should be exposed and ended. If the supreme triumph of medical psychology is to be sought in the attempt to prove that men are mere machines, and that the wrong they do is not their doing, but the outcome of disease, the sooner this branch of science is dis- countenanced by the common sense of the profession the better will it be for the credit and influence of our cloth. If a man is not acting under a recognizable and formulated delirium when he commits a crime, he is clearly responsible, and ought to be so held unless he is unquestionably, and on grounds other than those aris- ing out of or associated with his crime, shown to be insane. The mistake into which 'experts' and those who follow their leadcom- monlv fall is to confound the evidences of a neurotic constitution with the symptoms of mental disease. The inheritor of an organ- ism which predisposes to insanity is not necessarily insane. Lefroy was not insane, and Chateau is not insane. The only insanity accruing to the latter case is that which those who support the plea may themselves import into it. The position of matters in regard to this question is becoming one of exceeding gravity, and it will soon need to be very seriously discus>et, a lunatic, nor "affected with insanity." If he be EVIDENCE OF INSANITY. 673 insane, sound mind is wanting, and the crime is not established; therefore, the burden is on the state to establish sanity, and not upon the prisoner to show insanity. See Fisher v. People, 23 111. 283; JETopps v. People, 31 111. 394, 83 Am. Dec. 231. So, also, Judge Brewster, speaking for the judges of the Philadelphia common pleas, said, in 1868 : "The true test in all these cases lies in the word 'power.' Has the defendant in a criminal case the power to distinguish right and wrong, and the power to ad- here to the right and avoid the wrong ?" Corn. v. Haskell, 2 Brewst. 491. In Indiana a similar view was accepted in 1869. Stevens v. ■State, 31 Ind. 485, 99 Am. Dec. 634. In Ohio insane irresistible impulse is regarded as a defense ( Blackburn v. Statt , 23 Ohio St. 146) and such is the view in Min- nesota and Kentucky. Smith v. Com. 1 Duv. 224. In Iowa, in 1868, the same point was affirmed by the supreme court, Chief Justice Dillon delivering the opinion. The capacity to distinguish right and wrong, it was held, is not in all cases a safe test of crim- inal responsibility. If a person commit a homicide, knowing it to be wrong, but driven to it by an uncontrollable and irresistible impulse, arising not from natural passion, but from an insane condition of the mind, he is not criminally responsible. State v. F( lt< r, 25 Iowa, 67. See also People v. McFarland, 8 Abb. Pr. N. S. 57. To the same effect is a decision of the Supreme Court of the United States in 1872. Mutual L. Ins. Co. v. Terry, 82 U. S. 15 Wall. 580, 21 L. ed. 236. See also Blackburn v. State, 23 Ohio St. 165; Brown v. Corn. 78 Pa. 122; and other cases in Whart. Am. Oriin. L. (8th ed.) 145. Thus, in P<<>j>1( v. Coleman, 1 N. Y. Crim. Rep. 3, Judge Davis charged the jury as follows: "In this state the tesl of re- sponsibility for criminal acts, where insanity is asserted, is the capacity of the accused to distinguish between right and wrong at the time and with respect to the act which is the subject of inquiry." He further said that the question for the jury to de termine is "whether at the time of doing the act the prisoner knew what she was doing and that she was doing a wrong; or, in other words, did she know that she was shooting at the deceased, and that such shooting was a wrongful act?" The judge further ?aid: "No imaginary inspiration to do a personal or private vvron"-, under a delusion, a belief, that some great public benefit & 43 674 LAW OF EVIDENCE IN CRIMINAL CASES. will flow from it, where the nature of the act done and its proba- ble consequences, and that it is in itself wrong, are known to the actor, can amount to that insanity which in law disarms the act of criminality. Under such notions of legal insanity, life, property and rights, both public and private, would be altogether insecure, and every man who, by brooding over his wrongs, real or imagin- ary, shall work himself up to an irresistible impulse to avenge himself, or his friend or his party, can with impunity become a a self-elected judge, jury, aud executioner in his own case, for the redress of his own injuries or the imaginary wrongs of his friends, his party, or his country. But, happily, that is not the law, and whenever such ideas of insanity are applied to a given case as the law (as too often they have been) crime escapes punishment, not through the legal insanity of the accused, but through the emo- tional insanity of courts and juries." To the same general effect may be cited Reg. v. Oxford, 9 Car. & P. 525; Rex v. Burrow, 1 Lew. C. C. 238; Reg. v. Goode, 7 Ad. & El. 536, 67 Hans. Pari. Deb. 728; Bowler's Case, 67 Hans. Pari. Deb. 480; Rex v. Hadfield, 67 Hans. Pari. Deb. 480, 27 How. St. Tr. 1282; Reg. v. Barton, 3 Cox, C. C. 275; Reg. v. Of- ford, 5 Car. & P. 168; Reg. v. Higginson, 1 Car. & K. 129; Reg. v. Stokes, 3 Car. & K. 185; Reg. v. Layton, 4 Cox, C. C. 149; Reg. v. Vaughan, 1 Cox, C. C. 80; United States v. Shults, 6 McLean, 121; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; State v. Richard, 39 Conn. 591; Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216; Flanagan v. People, 52 K Y. 467, 11 Am. Rep. 731; People v. Sprague, 2 Park. Crim. Rep. 43; State v. Spencer, 21 K J. L. 196; Com. v. Hosier, 4 Pa. 264; Com. v. Farkin, 2 Pars. Sel. Eq. Cas. 439; Brown v. Com. 78 Pa. 122; State v. Gardiner, Wright, (Ohio) 392; Vance v. Com. 2 Ya. Cas. 132; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180; Dove v. State, 3 Heisk. 348; Stuart v. People, 1 Baxt. 178. Com- menting upon the Guiteau Case, 10 Fed. Rep. 194, Mr. Justice Somerville of the Alabama supreme court says : j. Comments of Judge Somerville. — "The Guiteau case was tried before the United States district court for the District of Columbia, before Mr. Justice Cox, whose charge to the jury is replete with interest and learning. While he adopted the right and wrong test of insanity, he yet recognized the principle that if the accused in fact entertained an insane delusion, which was EVIDENCE OF INSANITY. 675 the product of the disease of insanity, and not of a malicious heart and vicious nature, and acted solely under the influence of such delusion, he could not be charged with entertaining a criminal intent. An insane delusion was defined to be "an un- reasonable and incorrigible belief in the existence of facts which are either impossible absolutely, or impossible under the circum- stances of the individual;" and no doubt the case was largely de- termined by the application of this definition by the jury. It must ever be a mere matter of speculation what influence may have been exerted upon them by the high personal and political significance of the deceased, as the chief magistrate of the govern- ment or other peculiar surroundings of a partisan nature. The case in its facts is so peculiar as scarcely to serve the purpose of a useful precedent in the future." Parsons v. State, 61 Ala. 577, 60 Am. Rep. 193. § 412. Views of Mr. Robert Desty.— " The true test of re- sponsibility lies in the word 'power' — has the defendant the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong, and the power to govern the mind, body, and estate ? And it is sufficient if power to do so is shown to have existed in reference to the particular act. If he was under such defect of reason from disease of mind as not to know the quality of the act he was doing, or was under such delu- sion as not to understand the nature of his act, or had not suffi- cient memory or reason to know he was doing wrong, then he was not responsible; but if he knew what he was doing, and that the act was forbidden by law, and took precautions to accomplish his purpose, and had power of mind enough to know what he was doing at the time, then 1 onsible; for it is conscious knowledge coupled with the act which constitutes crime." See Desty, Am. Crim. L. p. 62, £ 23^, and cases cited; GuiU au's Cast . 10 Fed. Eep. 161. §413. Views of the Florida Supreme Court.— The relations sustained by the supreme court of Florida to this interesting topic, are best evidenced by the decision in the case of ffodgi v. State, 26 Fla. 11, which was decided in June L890, with the con- currence of the full bench. Upon a careful analysis, it appears that where the defense of insanity is relied upon as an extenua- tion or excuse for crime, and evidence is introduced which tends to overthrow the presumption of sanity, if upon the whole evi- 676 LAW OF EVIDENCE IN CRIMINAL CASES. dence the jury entertained a reasonable doubt of his sanity, they must acquit, regardless of whether it be adduced by the prosecu- tion or defendant, and that the accused is not required to estab- lish his insanity beyond a reasonable doubt; and in this we think they are correct, and that the charge of the trial judge, that the accused was required to prove his insanity beyond a reasonable doubt, was erroneous. The more humane and advanced rule on this subject is that if the jury, upon a consideration of the entire evidence, have a reasonable doubt as to the insanity of a party charged with crime at the time of committing it, it is their duty to give him the benefit of such doubt, and acquit. But the jury are to act upon a reasonable doubt of sanity in such cases, and are not to acquit upon a fanciful ground. Armstrong v. State, 27 Fla. 366. § 414. Moral Insanity as an Excuse for Crime— There are other species of insanity than those referable alone to diseases of the mind, or disorders of the mental powers; that there is a species of insanity denominated by medico-legal writers as moral insanity, and sometimes a lesion of the will; and that such species of insanity may co-exist with ample mental power and perception to distinguish right from wrong, and to understand fully the nature and consequences of criminal acts; and yet the party may be impelled to the doing of an act, wrong in itself, by a morbid, irresistihle impulse. This species of insanity, it is true, is recog- nized by many able writers upon medical jurisprudence; and by some few courts it has had a partial or qualified recognition. But, by the great majority of courts and jurists, it is, as an independ- ent state or condition, declared to have no place in the law. All crime is committed from bad motives or impulses, and it is the great object of the law to compel people to resist and restrain their vicious criminal impulses; the law giving no impunity to their indulgence. Taylor, an author of high repute, in vol. 2 of his work on Medical Jurisprudence (edition of 1873), at page 470, says, '"The intellectual disturbance may be sometimes difficult of detection; but in every case of true insanity it is more or less present, and it would be a highly dangerous practice to pronounce a person insane, when some evidence of its existence was not forthcoming. The law does not recognize moral insanity as an independent state; hence, however perverted the affections, moral feelings, or sentiments may be, a medical jurist must always look EVIDENCE OF INSANITY. 677 s?> for some indications of disturbed reason. Medically speaking there are, according to Dr. Prichard, two forms of insanity, moral and intellectual; but in law there is only one — that which affects the mind. Moral insanity is not admitted as a bar to responsi- bility for civil or criminal acts, except in so far as it may be accompanied by intellectual disturbance." And in speaking of moral or emotional insanity, as a defense for the commission of crime, the late Mr. Justice Curtis, in United States v. M c Glue, 1 Curt. C. C. 1, well said : " It is an important as well as a deeply interesting study, and it rinds its place in that science which min- isters to diseases of the mind. . . . But the law is not a medical nor a metaphysical science. Its search is after those practical rules which may be administered without inhumanity for the security of civil society by protecting it from crime, and therefore it inquires not into the peculiar constitution of mind of the accused, or what weakness or even disorders he was afflicted with, but solely whether he was capable of having, and did have, a criminal intent. If he had such intent the law punishes him, but if not, it holds him dispunishable." Moral insanity as an excuse for crime is no longer recognized as a defense. Guiteau's Case, 10 Fed. Rep. 161; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20; People v. Kerrigan, 73 Cal. 222; State v. Potts, 100 N. C. 457. But on a subject so intangible and of which so little can be clearly known we would not, in the spirit of dogmatism, under- take to say that there was no moral as distinguished from intel- lectual insanity. §415. Summary of the Conclusions Reached. — Without pushing the subject into unprofitable, refinements we may sum- marize the conclusions of legal authority by saying that the sole test of criminal responsibility is not the knowledge of right and wrong only; there must be will power to apply the knowledge and act accordingly. Reg. v. McNaghten, 10 Clark & F. 200; Reg. v. Oxford, 9 Car. & P. 532; Reg. v. Law, 2 Post. & F. 836; Reg. v. Ojf'ord, 5 Car. & P. 168; Rex v. Bellingham, cited in 1 Russell, Crimes (8th Am. ed.) *11; Beg. v. Pearce, 9 Car. & P. 637; Peo- ple v. Kleim, 1 Ed in. Sel. Cas. 14; Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458; 1 Bennett & Heard Lead. Crim. Cas. (2d ed.) 87; Freeman v. People, 1 Denio, 9, -17 Am. Dec. 216; Cole's Case, 7 Abb. Pr. N. S. 321; People v. McFarland, 8 Abb. Pr. GTS LAW OF EVIDENCE IN CRIMINAL CASES. K S. 57; People v. McCwm, 16 N. Y. 58, 69 Am. Dec. 642; WUlis v. Peqpfe, 32 N. Y. 715; Com. v. Mosler, 4 Pa. 267; i?^. v. Bleasdale, 2 Car. & K. 765; State v. Windsor, 5 Harr. (Del.) 512; xSco^ v. Com. 4 Met. (Ky.) 227, 83 Am. Dec. 461; Smith v. Com. 1 Duv. 224; Hopps v. $tafe, 31 111. 385, 83 Am. Dec. 231; Com. v. /-W'^A (Pa.) 6 Am. L.Reg. 400; Com. v.S/mrlock, 14 Phila. Le- gal Int. 33; Com. v. #m^A, 15 Phila. Legal Int. 33; Pouts v. State, 4 G. Greene, 500; Bilman's Case, cited in 1 Whart. Am. Crim. L. § 30; People v. P*w Nev. 333) gives an extended review of this EVIDENCE OF INSANITY. G79 entire topic, saying inter alia, "if any evidence is introduced tending to prove that defendant is insane the state is bound to prove and establish his sanity like all other elements of a crime, beyond a reasonable doubt." Continuing the court says: "It is earnestly and ably contended by learned judges, whose opinions have ever been entitled to great respect and considera- tion, that the burden of establishing the killing and the malicious intent is always upon the prosecution; that there cannot, logically, be any separation of the ingredients of the crime so as to require a part thereof, only, to be established by the state, and the balance to be established by the defendant; that the idea that the burden of proof ever shifts in a criminal case is unphilosophical and at war with fundamental principles of criminal law; that the rule established by a majority of the decided cases strips the defendant of the presumption of innocence which the law has given him as a shield throughout the entire proceedings, until the verdict of the jury establishes the fact, beyond a reasonable doubt, that he not only committed the act, but that he did so witli malicious intent. "We are of opinion that the weight of reason, as well as the pre- ponderance of the authorities, is opposed to these views. It is undoubtedly true thai it is incumbent upon the prosecution to prove every fact that is material, essential, and necessary to constitute the crime of which the defendant is accused, which, of course, includes the sanity of the defendant; but is it not equally true that the burden of proving his sanity is fully met by the presumption of law 'that every person is of sound mind until the contrary appears.' If this be true, then it is not a harsh, unphilosophical or inhuman rule that requires a defendant, who seeks to avoid the punishment which the law imposes upon him for the crime he has committed, by means of the defense of insanity, to rebut the presumption of sanity by proof that is satisfactory to the jury. Insanity being in its nature an affirmative defense, does it not necessarily follow that, where the insanity of the defendant is established by the presumption of law, or by the testimony of witnesses, or by both, the defendant, in order to overcome this presumption or testimony, must establish his insanity by a. prepon- derance of the evidence? "The presumption of the law in favor of innocence is essential, not only to the safety of the individual accused of crime, hut is absolutely necessary for the protection and security of society, 680 LAW OF EVIDENCE IN CRIMINAL CASES. and it is universally recognized in the trial of all criminal cases. But there are other legal and well recognized presumptions, sanc- tioned by law and approved by the wisdom of ages, which are equally as important and as indispensable to individuals, and to the well-being, safety and protection of society, and equally as necessary for the proper administration of justice in the trial of criminal cases. Within this category prominently stands the pre- sumption of sanity. ' Every man is presumed to be sane.' Is not this presumption as necessary and as universal in its applica- tion as the presumption of innocence? Ought not proof be required to rebut the other? State v. Lewis, 20 Nev. 333. "Upon the question of sanity at the time of committing an offense, the acts, conduct and habits of the prisoner at a subse- quent time may be competent as evidence in his favor. But they are not admissible as of course. When admissible at all it is upon the ground either that they are so connected with or correspond to evidence of disordered or weakened mental condition preced- ing the time of the offense as to strengthen then the inference of continuance, and carry it by the time to which the injury relates, and thus establish its existence at that time; or else they are of such a character as of themselves to indicate unsoundness to such a degree or of so permanent a nature as to have required a longer period than the interval for its production or development." Conn. v. Pomeroy, 117 Mass. 148; State v. Lewis, supra. The inference to be drawn from the discussion of the cases would seem to be in favor of the more reasonable doctrine last considered. It has been a question frequently and gravely argued both by theoretical writers and in forensic discussion, and the agita- tion is by no means allayed nor can the principles that infest it be regarded as even settled. CHAPTER XLIX. • EVIDENCE OF ALIBI. § 417. Term Defined. 418. Essentials of Alibi Evidence. 419. What the Proof Involves. 420. Credibility of — how Strengthened. 421. Want of Harmony in the Decisions. 422. Burden of Proving with the Defendant. 423. Prejudicial Theories Regarding this Defense. 424. Shifting Nature of the Burden of Proof. 425. Not Bound to Prove beyond Reasonable Doubt. 426. Views of Mr. Justice Best. 427. The General Rule. 428. Miscellaneous Decisions. § 417. Term Defined. — Alibi is a Latin word, signifying; else- where, and, in law, means a defense interposed by the defendant,, by which he proves that, at the time of the commission of the offense, he was at some other place than that where it was com- mitted. §418. Essentials of Alibi Evidence. — It is obviously essen- tial to the satisfactory proof of an alibi that it should cover the whole of the time of the transaction in question, so as to render it impossible that the prisoner could have committed the act; it is not enough that it renders his guilt improbable merely. Rex v. Fraser, Alison, Princ. 625, cited in Wills, Circ. Ev. 168. An alibi is a legitimate and proper defense to make, and if sat- isfactorily made is conclusive. Innocent men would and should resort to it, and no doubt it has often been the means of escape under wrongful charges. But it is a defense sometimes attempted by contrivance, subornation and perjury. It does not involve a complicated inquiry. Proof of it is measurably simple and direct, therefore persons may fabricate it with greater hope of success and less fear of punishment than many other kinds of evi- dence. §410. What the Proof Involves. — Proof of it involves ac- curacy as to dates, times of day and identity of persons seen, sub- 681 6S2 LAW OF EVIDENCE IN CRIMINAL CASES. jects in respect to which honest witnesses oftener mistake than in respect to many other things to which they testify. The direct proof therefore offered to sustain an alibi is to be subjected to a rigid scrutiny, because standing by itself it does not attempt to control or rebut the evidence of facts sustaining the charge, but attempts to prove affirmatively another fact inconsistent with it. It is in direct conflict with all the evidence tending to show the guilt of the defendant, because in so far as that tends to show he committed the offense, it tends in the same degree to show that he was at the place of the crime when committed. If therefore the proof of the alibi does not outweigh the proof that he was at the place when the crime was committed, it is not sufficient. In this conflict of evidence, whatever tends to support one theory, tends in the same degree to rebut and overthrow the other, and it is for the jury to decide which is the truth. State v. Ward, 61 Vt. 153. It cannot be held as a principle of law, that the defense- of alibi is liable to great abuse, growing out of the ease with which it may be fabricated, and the difficulty of detecting the fabrica- tion. This is not always true of such a defense. Sometimes the evidence which tends to prove an alibi is open, clear, and direct, without any of the signs of fabrication about it. Sometimes, doubtless, it is open to suspicion. So may evidence be which tends to prove any other fact. Law is fixed and uniform; it cannot be one thing in one case, and an- other thing in another case, as evidence may be. AVe know of no rule of law which attaches a suspicion to, or fixes a blemish upon, evidence tending to prove an alibi, any more than it does upon evidence tending to prove any other fact. Al- ii n v. State, 63 Ind. 598. § 420. Credibility of— how Strengthened.— "The credibility of an alibi is greatly strengthened if it be set up at the moment when the accusation is first made, and consistently maintained throughout the subsequent proceedings. On the other hand, it is a material circumstance to lessen the weight of a defense of this kind, if it be not resorted to until sometime after the charge has been made; or if having been once resorted to, a different and inconsistent defense is afterwards set up. AVills, Circ. Ev. 16S. ••This defense often involves considerations of the most difficult and perplexing nature. It is not an uncommon artifice to endea- EVIDENCE OF ALIBI. 6S3 vor to give coherence and effect to a fabricated defense of alibi, by assigning the events of another day to that on which the of- fense was committed, so that the events being true in themselves, are necessarily consistent with each other, and false only as they are applied to the- day in question. "Wills, Circ. Ev. 83." 2 Colby, Crim. L. chap. 4, § 7. § 421. Want of Harmony in the Decisions.— There is not ■entire harmony in the decisions as to the degree of proof of an alibi which must be produced, in order to entitle a defendant to an acquittal. In French v. State, 12 Ind. 670, 74 Am. Dec. 229, the trial court instructed the jury that, if he (the defendant) seeks to prove an alibi, he must do it by evidence which outweighs that given for the state, tending to fix his presence at the time and place of the crime. This instruction was held to be erroneous. In State v. Waterman, 1 Nev. 543, the following instruction was held to be erroneous : "It is not sufficient to warrant an acquit- tal that he merely raised a reasonable doubt as to whether the alibi is established, but, as before stated, you must be satisfied of its truth by testimony. If you believe from the testimony that the defendant. Waterman, at the time alleged, was in the city of Virginia, you must acquit him." In the course of a very lucid and able opinion, the court say : '-The rule of law and of common sense is. that where there is a reasonable doubt as to whether a prisoner has committed the act or offense with which he stands charged, he must be acquitted, whether the doubt arises from a defect in the evidence introduced by the state or from the evi- dence in rebuttal by the defendant." In the trial of Webster for the murder of Parkman, before the supreme judicial court of Massachusetts, the following direction was given to the jury: "In the ordinary case of an alibi when a party charged with a crime attempts to prove that he was in another place at the time, all the evidence tending to prove that he committed the offense tends in the same degree to prove that he was at the place when it was committed. If, therefore, the proof of the alibi docs not out- weigh the proof that he was at the place when the offense was committed, it is not sufficient." Com. v. Webster, 5 Cush. 324, 52 Am. Dec. 711. This doctrine was simply recognized and ap- proved in State v. Vincent, 24 Iowa. 570, 95 Am. Dec. 753; though the alibi sought to be established in thai case was of the alleged deceased, and not of the prisoner. 684 LAW OF EVIDENCE IN CRIMINAL CASES. The evidence sustaining it must outweigh the proof tending to establish its contradictory hypothesis. For this purpose a bare preponderance is sufficient. A preponderance of testimony is capable of producing very different degrees of conviction. It may be barely sufficient to turn the scale of probability in favor of the proposition which the mind is called upon to adopt. Where it so turns the scale, the fact which it favors is said to be proved by a preponderance of evidence. From this point the evidence may gradually increase in intensity until it creates full satisfaction, which is not distinguishable from satisfaction beyond a reasonable doubt. /State v. Hardin, 46 Iowa, 623, 26 Am. Rep. 174. There is sharp conflict in decisions in regard to the extent to- which the evidence must go in order to render the alibi effectual. § 422. Burden of Proving with the Defendant. — When the defense is that of an alibi, the law casts the burden upon the defendant to reasonably satisfy the jury that he was elsewhere at the time of the commission of the offense. Pelluni v. State, 89' Ala. 32. This rule of law, as applicable to the defense of an alibi, does not require of the defendant to reasonably satisfy the jury of his exact whereabouts every moment of the time necessary to cover the period when the offense was committed, but he is re- quired to prove such a state of facts or circumstances as to reason- ably satisfy the jury that he was elsewhere than at the place where and at the moment when the offense was committed. Pelluni v. State, supra', Allbritton v. State (Ala.) Jan. 7, 1892;. Fate v. State, 1 Am. & Eng. Enc. Law, 454, 455; 1 Bishop, Crim. Proc. §^ 1066, 1067. The extent to which the proof must go in making out an inde- pendent defense has been the subject of much discussion, some authorities holding that it is sufficient in any case to create a tea-. liable doubt of guilt, while others favor the doctrine that the defense must be made out to the satisfaction of the jury. The rule laid down in Wharton's Criminal Evidence (§ 331) is that when the case of the prosecution is admitted and the defense is one exclusively of avoidance, then this defense must be made out by the defendant by a preponderance of proof; to which he cites many authorities. He applies this rule to all facts set up by the defendant which do not traverse any averment of the indictments Kent v. People, S Colo. 563. EVIDENCE OF ALIBI. 635 § 423. Prejudicial Theories Regarding this Defense.— We have met with some dicta to the effect that if this defense of alibi turns out to be untrue it amounts to a conviction. Wills, Circ. Ev. 92, citing Justice Daly in Rex v. Kill an, 20 How. St. Tr. 1085. "But," says Mr. Wills, "it must not be overlooked that such is the weakness of human nature, there have been cases where innocence, under the alarm of menacing appearances, has fatally committed itself by the simulation of facts for the purpose of evading the force of circumstances of apparent suspicion. When the defense of an alibi fails, it is generally on the ground that the witnesses are disbelieved and the story considered to be a fabrication, and from the facility with which it may be fabrica- ted it is commonly entertained with suspicion and sometimes, per haps, unjustly so." As before stated the evidence of an alibi is either true or false. If true it should acquit the defendant. If false, the introduction of it, and the attempt to procure an acquittal by it, constitutes a circumstance against him. The introduction of false or fabricated evidence in a defense is always regarded as an inferential admis- sion of guilt, although not of a conclusive character. But to be entitled to any force, as it is only circumstantial and collateral to the main issue, it should be established beyond all question, that the party has been guilty of producing false and fabricated evi- dence. If this is doubtful no weight should be given to it. State v. Ward, 61 Vt. 153. " It must be admitted," says Sir Michael Foster in his Crown Law, 368, "that mere alibi evidence lieth under a great and gen- eral prejudice and ought to be heard with uncommon caution; but if it be founded in truth it is the best negative evidence that can be offered; it is really positive evidence which in the nature of things necessarily implieth a negative and in many cases it is the only evidence that an innocent man can offer." In Bricdcmd v. Com. 74 Pa. 469, the supreme court of Penn- sylvania carefully considered this question and says: "When a defense rests on proof of an alibi, it must cover the time when the offense is shown to have been committed, so as to preclude the possibility of the prisoner's presence at the place of the mur- der. Although the prisoner makes no admission of guilt by set ting up an alibi, yet clearly the value of the defense consists in showing that he was absent from the place where the deed was 686 LAW OF EVIDENCE IN CKLMINAL CASES. done, at the very time the evidence of the commonwealth tends to fix its commission upon him; for, if it be possible that he could have been at both places, the proof of the alibi is value- less." g 424. Shifting Nature of the Burden of Proof.— "In an indictment for crime, the defendant, ordinarily, is entitled to have the whole case left to the jury, upon the evidence of both sides, and if upon a consideration of all such evidence, every reasonable doubt be not removed, the jury should acquit. Therefore in a case of larceny, an instruction to the jury that the burden of proof to show the guilt of the prisoner is upon the state, but when the state has made out a prima facie case, and the prisoner attempts to set up an alibi, the burden of proof is shifted; and if the de- fense fail to establish the alibi to the satisfaction of the jury, they must find the prisoner guilty, is erroneous." § 425. Not Bound to Prove beyond Reasonable Doubt. — In Tennessee, the law has been laid down in substantially the same terms; that where the charge was "that the proof necessary to establish the alibi must be as certain as that by which the state would have to establish the guilt of the accused," this was held to be erroneous, because its effect was to exclude the prisoner from the benefit of any reasonable doubt as to his guilt, arising from the proof touching the alibi, in connection with other proof in the cause; and further that the prisoner was not bound to prove an alibi beyond a reasonable doubt. Chappel v. State, 7 Coldw. 92. "Evidence of an alibi," says the supreme court of Illinois (Mil- !< r v. /'. ople, 39 111. 457) " whether sufficient to render the guilt of the defendant impossible or only improbable, is proper for the jury, and he is entitled to any reasonable doubt that may entertain upon this point; and if he attempts to prove an alibi, and fails to do so, it should have no greater weight to convince them of his guilt, than a failure to prove any other important item of defense, and should not, generally speaking, operate to his prejudice." In similar vein is a decision of the South Carolina court. We can see no injustice in requiring matters of defense to be established according to the ordinary rule of evidence — that of a "preponderance," which is the lowest degree capable of producing conviction. If a party charged with crime pleads a particular defense, such as insanity or an alibi (or self-defense) the fact must be proved as it is alleged by him. Preponderance of evidence i& EVIDENCE OF ALIBI. 687 the lowest degree capable of producing conviction. Less cannot be required of one whose duty it is to establish a particular fact, subject, of course, to the general rule, that a party charged with crime is entitled to the benefit of all reasonable doubts. State v. Paulk, 18 S. C. 515; State v. Bundy, 21 S. C. 139. State v. Nance, 25 S. C. 173. The defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is sufficient if the evidence upon that point raises a reasonable doubt of his presence at the time and place of the commission of the crime charged. McLain v. State, 18 Neb. 151. § 426. Views of Mr. Justice Best.— The story of Susannah and the "Elders in the Apocrypha affords a very early and most admirable example. The two false witnesses were examined out of the hearing of each other; on being asked under what sort of tree the criminal act was done, the first said "a mastick tree''' and the other "a holm tree." The judgment of Lord Stowell also in Evans v. Evans, 1 JIagg. Consist. Rep. 105, shows how a sup- posed transaction may be disproved, by its inconsistency with sur- rounding circumstances. "What had you for supper?" says a modern jurist. 2 Bentham, Judicial Ev. 9. "To the merits of the cause, the contents of the supper were in themselves altogether irrelevant and indifferent. But if, in speaking of a supper given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare, the contrariety affords evi- dence pretty satisfactory, though but of the circumstantial kind, that at least some of them were not there." The most usual ap- plication of this is in detecting fabricated alibis. These seldom succeed if the witnesses are skillfully cross-examined out of the hearing of each other; especially as courts and juries are aware that a false alibi is a favorite defense with guilty persons, and consequently listen with suspicion even to a true one. 2 Best, Ev. § 655. §427. The General Rule. — The rule supported by the weight of authority is, that while the burden <<( proof to establish an alibi is on the defendant, yet, even though the evidence may fall short of establishing the pica, it may be considered by the jury with the entire evidence in determining whether a reasonable doubt of defendant's guilt has been raised. People v. Fong A ft Sing, 64 Cal. 253; Kaufman v. State, 49 Ind. 248; Howard v. 6SS LAW OF EVIDENCE IN CRIMINAL CASES. State, 50 Ind. 190; Com. v. Choate, 105 Mass. 451; State v. Beits, 83 X. C. 634; TPbto* v. State, 39 Ohio St. 215; Watson v. Com, 95 Pa. 418; State v. Hardin, 46 Iowa, 623, 26 Am. Rep. 174; Stab v. 1 1',/ Avow, 7 S. C. 63 But see Ware v. State, 67 Ga. 349; Bryan v. &tote, 74 Ga. 393. Rapalje, Criin. Proc. § 286. §428. Miscellaneous Decisions. — The defense of alibi is "not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in sup- port of any other issue in the oause;" and we may add that if trial courts will give an instruction to this effect the ends of jus- tice will be equally as well subserved, and the administration of the laws less embarrassed. People v. Lattimore, 86 Cal. 403. To establish an alibi the range of evidence in respect to time and place must be such as reasonably to exclude the possibility of the presence of the accused. Wade v. State, 65 Ga. 756; Com v. Seyhert, 4 Kulp, 4. An alibi need not be proved beyond reasonable doubt; it is established by a preponderance of evidence. Walters v \ State, 39 Ohio St. 215. Evidence tending to establish an alibi, even though not deemed by the jury sufficient for that purpose, may be considered by them, together with the other evidence in the cause, in determin- ing whether guilt has been shown beyond a reasonable doubt. Watson v. Com. 95 Pa. 418. If the jury should regard the evidence of alibi as preponderat- ing, their belief would be that the defendant was where he could not have committed the crime, and having reached that conclusion an acquittal should follow, of course. State v. McCracken, 66 Iowa, 569. Where the evidence adduced to prove an alibi is sufficient, con- sidered with the other evidence, to create in the minds of the jury a reasonable doubt as to defendant's guilt, he is entitled to an ac- quittal. Blankenship v. State, 55 Ark. 244. In the case of the People v. Lamed, 7 N. Y. 448, the presid- ing judge charged the jury : '•That the defense interposed by the prisoner was what was in law denominated an alibi, and if the three witnesses called by him to sustain it had testified truly, the prisoner should be acquitted; that it was however insisted by the prosecution that the defense was a fabricated one and sustained by perjury; that this issue the EVIDENCE OF ALIBI. 689 jury were to determine; that it was undoubtedly true that the de- fense of an alibi is not unfrequently the felon's plea; that when a prisoner finds himself surrounded by facts and circumstances which threaten to overwhelm him and establish his guilt, he not un- frequently resorts to this defense and seeks to maintain it by per- jured witnesses; and that it was the remark of an eminent judge in England that 'in his opinion, more perjury had been committed in defenses of this description than in all other defenses interposed in criminal trials.' " CHAPTER L. COMPULSORY EXAMINATION OF PERSON OR PAPER. § 429. Right to Examine Generally Denied in Criminal Cases, 430. Views of Mr. Justice Balcom in the McCoy Case. 431. The Authorities Examined. 432. The Rule in Civil Actions for Damages. 433. Compulsory Production of Paper. § 429. Right to Examine Generally Denied in Criminal Cast's. — In criminal trials, whether the defendant can be com- pelled by order of the court, against his consent, to submit to a physical examination, there is a difference of opinion. It has been supposed that it could not be done, because this compels the- accused to produce evidence against himself, and violate a funda- mental principle, as was held in a English custom-house case, where a motion to compel the production of books was denied. A forcible examination of a female prisoner, under an oath of a. coroner, by physicians, to ascertain if she had been pregnant and recently delivered of a child, was a violation of the Constitution. But we find on this subject that the authorities are in great con- flict, especially upon questions of identity of the prisoner, when that is the issue, and it becomes necessary to identify him by marks or sears on his person. We find a case decided in Nevada in 1S79, State v. Ah Ckuey, 14 Nev. 79, 33 Am. Rep. 530,. in which the defendant was indicted for murder, and the question of his identity became important. A witness stated that he knew the defendant, and that he had tattoo marks (a female head and bust) on his right fore-arm. Defendant was compelled by the court, against his protest, to exhibit his arm to the jury and show the marks to them. This was held to be proper, and that it did not violate any constitutional provision, as meaning that no person shall be compelled to testify as a witness against himself; that it was not prejudicial to defendant and was not erroneous. Hawley, J., among many other things, said : " The Con- stitution means just what a fair and reasonable interpreta- tion of its language imports. No person shall be compelled to be a witness, that is, to testify against himself. To use the com- mon phrase, it ' closes the mouth ' of the prisoner. A defendant 690 COMPULSORY EXAMINATION OF PERSON OR PAPER. 691 in a criminal case cannot be compelled to give evidence under oath or affirmation, or make any statement for the purpose of proving or disproving any question at issue before any tribunal, court, judge or magistrate. This is the shield under which he is protected by the strong arm of the law, and this protection was given, not for the purpose of evading the truth, but as before stated, for the reason that in the sound judgment of the men who framed the constitution, it was thought that, owing to the weak- ness of human nature, and the various motives that actuate man- kind, a defendant accused of crime might be tempted to give evidence against himself that was not true." In fairness, an extract from the dissenting opinion of Leonard, J., should be noticed. After quoting from the above opinion, he says: "In my opinion, the court has not stated the only reason why the provision in question was placed in the Constitution. Had that been the only one, there would have been a prohibition against allowing a defendant to testify for himself; because in the latter case there was and is a hundred-fold more danger of falsehood than in the former. Is there not an additional reason why this provision was adopted ? Was it not, in part, at least, because of the enlightened spirit of the age, that a man accused of a crime should not be compelled to furnish evidence of any kind which might tend to his conviction ? Did it not come, to some extent, from the spirit of justice and humanity which established the first of all legal presumptions — that every person should be con- sidered innocent until proven guilty '. Can the person of a criminal be examined against his objection, to furnish evidence of his identity, and tending to his conviction i Harris, Identifica- tion, §§ 605, 606, citing Rex v.Worsenham, 1 Ld. Raym. 705; Reg. v. Mead, -1 Ld. Raym. 927; Roe v. Harvey, 4 Burr. 24S9; People v. McCoy, 45 How. Pr. 216; State v. Ah Ohuey, 14 Nov. 79; Union Pac. R. Co. v. Botsford, 141 U. S. 250, 35 L ed. 734; McQuigan v. Delaware, L. da W. R. Co. 14 L U. A. 4:66, 129 N. Y. 5U; Schroeder v. Chicago, R. 1. dk P. R. Co. 47 Iowa, 375. § 430. Views of Mr. Justice Balcom in the McCoy Case.— "The forcible examination of the prisoner by the physicians for the purpose of obtaining evidence that she had been pregnant, and had been delivered of a child within two or three weeks previous to the time of such examination, was in violation of the 692 LAW OF EVIDENCE IN CRIMINAL CASES. spirit and meaning of the constitution, which declares that ' no person shall be compelled in any criminal case to be a witness against himself.' They might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been preg- nant and been delivered of the child, as to have compelled her, by threats, to allow them to look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and been recently delivered of a child. . . . ' Has this court the right to compel the prisoner now to submit to an examination of her private parts and breasts, by physicians, and then have them testify that from such examination they are of the opinion that she is not a virgin, and has had a child ? It is not possible that this court has that right; and it is too clear to admit of argument that evidence thus obtained would be inadmissible against the prisoner.'" J3al- com, J., in People v. McCoy, 45 How. Pr. 216. § 431. The Authorities Examined. — Whether the court has power to order a compulsory examination by experts of the per- son of a defendant in a criminal proceeding, is an important ques- tion which has been somewhat considered by the courts, and upon which a difference of opinion exists. The cmestion turns on the construction to be placed on the constitutional provisions which provide that the accused shall not be compelled to give evidence against himself in any criminal case. Such a provision is found in the Constitution of the United States, and in the constitutions of the several states, with hardly an exception. In State v. Jacobs, 50 N. C. 259, the supreme court of North Carolina, in 185S, held that a defendant could not be compelled to exhibit himself to the inspection of a jury fur the purpose of enabling them to deter- mine his status as a free negro. And this ruling was approved by the same court in Stale v. Johnson, 67 JN T . C. 58, in 1S72. Rogers, Expert Testimony, § 78. In a recent case in Iowa a physician made an examination of the face and neck of the defendant while in jail, and testified that he found several scratches. At the trial the defendant did not object to the admission of the testimony, but on appeal he insisted that there was error in admitting it, and claimed that the testi- mony was in respect to an examination to which he was compelled to siil unit, and that such examination was in violation of his con- stitutional rights, and that being so that the admission of the tes- timony was error, even though not objected to. The court COMPULSORY EXAMINATION OF PERSON OR PAPER. 693 replying to this: "Without considering the legal questions sug- gested, it is sufficient to say that we see no evidence that the defendant was compelled to submit to an examination. It is true the evidence shows that when Dr. Harman went into the jail the sheriff accompanied him, but there is no evidence that the sheriff did or said anything in respect to the examination. "We think there is no error in admitting the evidence." State v. St ruble, 71 Iowa, 11. A prisoner on trial for crime cannot be required, against objec- tion, to try on a shoe to determine whether tracks found at the scene of the offense were his own; nor if he objects, can he prop- erly be required to measure the shoe after trying it on. But if he tries it on without objection, the ruling that he must measure it is not prejudicial error, as any witness could do it as well as he. People v. Mead, 50 Mich. 228. A defendant on trial cannot be required to make evidence against himself by trying on shoes to fit tracks found near the scene of the offense. Stokes v. State, 5 JBaxt. 619, 30 Am. Rep. 72. "Take the case of Stokes. The prosecution sought to compel the defendant in the court-room to put his foot in a pan of mud, in order to identify the track thus made with a track found in mud of equal softness and similar character, made by a bare foot near the scene of the homicide. The court refused to compel the defendant ' to put his foot in it.' On appeal, the case was reversed because this circumstance might have had an influence on the jury prejudicial to the defendant. "It is argued that the act of the prosecution tended to compel the defendant to make evidence against himself. I am of opinion that too much importance has been attached and too much promi- nence given to the words, ' compelled to make evidence against himself.' The defendant Stokes, if he was the guilty person, was making evidence against himself when he put his foot in the mud near the scene of the homicide, and when arrested he could have been compelled to put his foot in that track, against his will, and if his foot corresponded with the track, that fact would have been admissible upon the trial of his case. Stale v. Graham, 74 N. C. 646, 21 Am. Rep. 493." Hawley, J., in State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530. In a case of homicide the defendant makes evidence against himself by being compelled to surrender the weapon with which C'.'i LAW OF EVIDENCE IN CRIMINAL CASES. the offense was committed, for it can always be used as evidence against him. A burglar is compelled to give evidence against him- self, when he is forced to surrender false keys and other burglarious instruments found in his possession. A counterfeiter is compelled to give evidence against himself, when the dies he had manufac- tured and used are discovered and brought into court for inspec- tion. The application of the principle sought to be enforced upon the reasoning of the court in State v. Jaeohs, 50 N. C. 259, as being within the protection of the constitution, would, if logically car- ried out, apply to all these and many other similar cases. In the case of Day v. State, 63 Ga. 669, the court held: "Evi- dence that a witness forcibly placed defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible." A defendant cannot be compelled to criminate himself by acts or words. The court says: "By the constitution of this state no person shall be compelled to give tes- timony tending in any manner to criminate himself; nor can one by force compel another against his consent to put his foot in a shoe-track for the purpose of using it as evidence against him on a criminal side of the court." Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717. "The object of every criminal trial is to ascertain the truth. The constitution prohibits the state from compelling a defendant to lie a witness against himself, because it was believed that he might, by the flattery of hope or suspicion of fear, be induced to tell a falsehood. None of the many reasons urged against the rack or torture, or against the rule compelling a man 'to be a wit- no- against himself,' can be urged against the act of compelling a defendant, upon a criminal trial, to bare his arm in the presence of the jury, so as to enable them to discover whether or not a cer- tain mark could be seen imprinted thereon. Such an examina- tion could not, in the very nature of things, lead to a falsehood. In fact, its only object is to discover the truth; and it would be a sad commentary upon the wisdom of the framers of the constitu- tion t<> say that by the adoption of such a clause they have effect- ually closed the door of investigation tending to establish the truth." 6 Grim. L. Mag. S07 ; State v. Ah Chuey, 14 Nev. 79, 33 Am. lie]-. 530. § t32. The Rule in Civil Actions for Damages. — There i> a want of harmony in the decisions upon this point, that is suf- COMPULSORY EXAMINATION OF PERSON OR PAPER. 695 ficiently indicated by the statement, that in some jurisdictions the practice is held to be utterly unknown to the law, while still other jurisdictions view the entire topic as resting within juridical dis- cretion. The Arkansas supreme court is in discord with both these views, and holds without qualification that physical exami- nation is a matter of right residing in the party whom it is sought to mulct in damages. The case of Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584, illustrates this position. Sibley as receiver of a bankrupt railroad corporation was sued for damages by Smith for being forcibly ejected from a passenger train, and in conse- quence of which he claimed to have received serious internal in- juries, for which the jury gave a verdict for $2,000 which was reversed. The appellate court after citing and commenting on several analagous cases, employed the following language : u The rule to be deduced, from these cases is, that where the plaintiff in an action for personal injuries alleges that they are of a perma- nent nature, the defendant is entitled as a matter of right, to have the opinion of a surgeon upon his conditional opinion based upon personal examination." This question is practically withdrawn from legal controversy by the recent decision of the United States supreme court in the case of Union Pac. E. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734. And see the dissenting opinion in this case in vol. 2, Rice on Civil Evidence, 1112. It has been held in Georgia that it is within the discretion of the trial court to require th 3 plaintiff, suing for a physical injury alleged to be permanent, to submit to a physical examination. See Richmond & D. E. Co. v. Childress, 3 L. R. A. SOS, and note, S2 Ga. 719. If physical condition of a party is material, lie has a right, when giving his testimony as to it, to exhibit it to the jury, or to an expert called to describe the injury; but he has not a right to make unsuccessful efforts before them, as evidence in his own be- half, of his incapacity. Abbott, Trial Brief, § fc J5 7, citing Mulr hado v. Brooklyn City E. Co. 30 N. V. 370. §433. Compulsory Production of Paper.— Where proceed- ings were in rem to establish a forfeiture of certain goods alleged to have been fraudulently imported without paying the duties thereon, pursuant to the 12th section of said Act, held thai an order of the court made under said 5th section, requiring the 696 LAW OF EVIDENCE IN CKIMINAL CASES. claimants of the goods to produce a certain invoice in court for the inspection of the government attorney, and to be offered in evidence by him, was an unconstitutional exercise of authority; and that the inspection of the invoice by the attorney, and its ad- mission in evidence, were erroneous and unconstitutional proceed- ings. It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the 4th Amendment. A compul- sory production of a party's books and papers to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the Amendment. It is equivalent to a compulsory production of papers, to make the non-production of them a confession of the allegations which it is pretended they will prove. A proceeding to forfeit a per- son's goods for an offense against the laws, though civil in form, and whether in rem or in personam, is a criminal case within the meaning of that part of the 5th Amendment which declares that no person "shall be compelled, in any criminal case, to be a wit- ness against himself." Boyd v. United States, 116 U. S. 616, 29 L. ed.746. PART V. EVIDENCE IN ITS RELATIONS TO SPECIFIC OFFENSES. INTRODUCTION. In the concluding chapters the endeavor is to place before the practitioner such evidentiary rules as regulate the trial of specific offenses under a criminal indictment. All attempt is disclaimed to even tabulate the list of felonies- and misdemeanors, but a studious effort is made to indicate the divergences in probative methods by which peculiar evidence may sustain an indictment for certain offenses or support a traverse of its recitals. The common incidents of " Police Court " evidence tending to sustain a charge of disorderly conduct, thieving, vagrancy, etc., are presumptively within the knowledge of the practitioner after a reading of the foregoing text. But in order to sustain a conviction for the more serious crimes the Penal Law requires a high degree of demonstration as to the guilt of the accused before it will venture to place upon him a stigma which must be borne for life and frequently transmitted to unoffending children. Here it is that technical rules engraft themselves upon the primary requirements of the law and impart an element of doubt and complexity to evidentiary procedure that it is the province of this subdivision to dispel. The attempt is to deal intelligently with such phases of the Law of Evidence as are generally regarded as exceptional — with rules of specialized and unusual application — that are far more perplexing to both bench and bar than any questions within the range of either plead- ing or practice. C97 CHAPTER LI. FALSE PRETENSES. § 434. Tlie Offense Defined. 435. What must be Prove!. 436. Must Relate to an Existing Fact. 437. Intent to Defraud must be Shown. 438. Something of Value must be Obtained. 439. Similar Frauds may also be Shown. 440. Evidence of Ability to Repay the Amount Obtained Im- material. 441. Pretense must be Such as to Mi si pad Men of Ordinary Prudence — Contradiction in the Decisions. 442. Distinction between Larceny and False Pretenses. 44:5. Examination of the English Rule. 444. Partial Review of the Authorities. § 434. The Offense Defined. — False pretenses consist in per- -suading the owner to part with his property by the utterance of a conscious falsehood by the party making the false pretenses or by the offender's simulation of a character that does nut belong to it or by representing himself to be in a condition he knows he does not really occupy. People v. Ifaynes^ 14 Wend. 546, 28 Am. Dec. 530. A false pretense is a false statement about a past or present fact, and not a mere promise, opinion, or statement of something to take place. Opinion as to quantity, quality, value, amount, etc., do not constitute the crime. Browne, Crim. L. 5". § 435. What must he Proved. — To constitute the offense charged, four thing- must concur, and four distinct averments must be shown by the evidence, viz: 1. An intent to defraud; 2. Actual fraud committed; 699 700 LAW OF EVIDENCE IN CRIMINAL CASES. 3. False pretenses for the purpose of perpetrating fraud ; and it must further appear, 4. That the fraud was accomplished by means of the false pre- tenses made use of; and this must be the cause which induced the owner to part with his property. Com. v. Drew, 19 Pick. 184; People v. Wasservogle, 77 Cal. 173. State v. Matthews, 10 L. R. A. 308, 44 Kan. 596; People v. Jordan, 66 Cal. 10; People v. Wakely, 62 Mich. 297; 2 Bishop, Crim. Proc. § 163. Tested by the above rules, which seem to be supported by rea- son and authority, it must appear that some one has been defrauded to insure a conviction. State v. Clark, 46 Kan. 65. Under indictments for this offense it is competent for the com- monwealth to introduce evidence of other false pretenses made at or about the same time with the one charged, as tending to estab- lish the guilty intent — an ingredient in every crime that must always be proved. People v. Wakely, 62 Mich. 298; Strong v. State, $6 Ind. 208, 44 Am. Kep. 292; State v. Jamison, 74 Iowa r 613; Com. v. Stone, 4 Met. 43; People v. Henssler, 48 Mich. 49; Thompson v. Rose, 16 Conn. 71, 41 Am. Dec. 121; State v. My- ers, 82 Mo. 558, 52 Am. Rep. 389; State v. Bayne, 88 Mo. 604;, Com. v. Blood, 141 Mass. 571; Cowan v. State, 22 Neb. 520; State v.Sarony, 95 Mo. 349; State v. Long, 103 Ind. 481; Mayer v. People, 80 K Y. 364; Trogdon v. Com. 31 Gratt. S62; Rex v. Roberts, 1 Campb. 399; Weyman v. People, 4 Hun, 511; Rex v. Ellis, 6 Barn. & C. 145; BielschofsTcy v. People, 3 Hun, 40; Copperma/n v. People, 56 N. Y. 591; Rex v. Davis, 6 Car. & P. 177; Com. v. Tuckerman, 10 Gray, 179; Rex v.Wylie, 1 Bos. & P. 94; Hitchcock's Case, 6 City Hall Rec. 43; Reg. v. Dossett, 2 Car. & K. 306; Com. v. Eastman, 1 Cush. 1S9, 48 Am. Dec. 596; Com. v. Choate, 105 Mass. 459; Com. v. Coe, 115 Mass. 481; Rex v. Dunn, 1 Mood. C. C. 146; Com. v. Stone, 4 Met. 43; Rex v. rAA/y, 2 Den C. C. 264; Com, v. Price, 10 Gray, 472, 71 Am. Dec. 668; Reg. v.Forster,l Dears. C. C. 456; Com, v. Ferrigan, 44 Pa. 386; Bottomley v. United States, 1 Story, 135; People v. Wood, 3 Park. Crim. Pep. 681; State v. Williams, 2 Rich. L. 418; Stout v. I } loj>Ic, 4 Park. Crim. Rep. 71; Ilw/rf v. United States, 41 U. S. 10 Pet. 360, 10 L. ed. 994; Reg. v. Gcering, 18 L. J. M. C. 215; Reg. v. Richardson, 8 Cox, C. C. 448; 7?<°j/. v. Francis, 12 Cox, C. C. 6Y1\ Reg. v. ta^r, L. R. 1 Q. B. 19. In Com. v. Stoio , supra, Shaw, Ch. J., speaking of this kind of evi- FALSE PRETENSES. 701 denee, said: "This is an exception to the general rule of evidence. But it must be considered that it is to prove a fact not provable by direct evidence, that is, a guilty knowledge and purpose of mind, which can rarely be proved by admissions or declarations, and can in general be proved only by external acts and conduct. The case is strictly analogous to the rule in relation to the proof of scienter on a charge of passing counterfeit bills or coins." An indictment charging false pretenses made to a certain per- son, and money paid by him on the strength thereof, is supported by proof that the false representations were made to an agent who communicated the same to the principal. Com. v. Call, 21 Pick. 521, 32 Am. Dec. 284; Roberts v. People, 9 Colo. 45$; 1 Whart. Am. Crim. L. § 598; 2 Whart. Am. Crim. L. §§ 2145, 2140. To constitute the crime of obtaining property by false pretenses under the statute, two things are essential, viz: a false representa- tion as to an existing fact and a reliance upon that representation as true. People v. Tomjpkins, 1 Park. Crim. Eep. 224. Every species of fraudulent pretense is included within the comprehensive terms employed by the various statutes in defining this offense. It does not matter what the nature of the transac- tion is, if money be obtained in the manner and by the means indicated in the statute. So long as there is a false representation designedly made, with the intent to cheat and defraud, it is enough to satisfy the requirement of the law. It is true that it must be a representation which affects and influences the mind of the prosecutor and induces him to sign the instrument, or to part with his money or property, and to surrender it by reason there- of. The question to be determined is, whether the false pretense charged and proven is of such a character that it is capable of defrauding and that the prosecutor could have been deceived by it. In some of the cases decided in New York as well as the English statute which is of a similar import and substantially the same as the first named statute, there was some hesitation as to whether it should not be interpreted, having in view the restric- tion which existed at common law in cases of a similar character. But this disposition ha- yielded to a more just construction so as to give full force and effect to the statute and to furnish protec tion to those who, from undue confidence in others, or inexperi- ence, are liable to become the victim- of dishonest, artful and designing dealers. This interpretation is more consistent with the 702 LAW OF EVIDENCE IN CRIMINAL CASES. intention of the law makers and the object in contemplation which was evidently to make a party responsible criminally for any false representation of a material fact designedly made with a fraudulent purpose in view and which did have the effect to cheat and defraud another. This rule has generally been upheld in the decisions with the exception perhaps of People v. Williams, 4 Hill, 9, 40 Am.Dec. 258, which may be regarded as tending in a different direction, although the precise point which now arises was not in that case. The later cases of People v. Crissie, 4 Denio> 525; Thomas v. People, 34 N. Y. 351; People v. Sully, 5 Park. Crim. Eep. 143; People v. Oyer ds Terminer Ct. 83 K Y. 436, are in a contrary direction. Watson v. People, 87 N. Y. 561, 41 Am. Eep. 397. The English decisions fully sustain the doctrine that it is enough that the pretense was made knowingly and the money obtained thereby with the intent to defraud and that the pretense was false to the knowledge of the person making it. Hamilton v. Peg. 9 Q. B. 271; Reg. v. Wickham, 10 Ad. & El. 34. Judge Morton in an early Massachusetts case outlines the pre- vailing rules that govern the production of evidence in actions for false pretenses, I excerpt from his opinion in Com. v. Drew, 19 Pick. 179. What is a false pretense, within the meaning of the statute ? It may be defined to be a representation of some fact or circum- stance, calculated to mislead, which is not true. To give it a criminal character there must be a scienter and a fraudulent in- tent. Although the language of the state is very broad, and in a. loose and general sense, would extend to every misrepresentation, however absurd or irrational or however easily detected; yet we think the true principles of construction render some restriction indispensable to its proper application to the principles of crimi- nal law and to the advantageous execution of the statute. We do not mean to say that it is limited to cases against which ordi- nary skill and diligence cannot guard; for one of its principal objects is to protect the weak and credulous from the Males and stratagems of the artful and cunning; but there must be shim.' limit, and it would seem to be unreasonable to extend it to those who, having the means in their own hands, neglect to protect themselves. It may be difficult to draw a precise line of dis- crimination applicable to every possible contingency, and we think FALSE PRETENSES. 703 it safer to leave it to be fixed in each case as it may occur. Young v. Rex, 3 T. R. 98; 2 East, P. C. 828. It is not the policy of the law to punish criminally mere private wrongs. And the statute may not regard naked lies, as false pretenses. It requires some artifice, some deceptive contrivance, which will be likely to mislead a person or throw him off his guard. He may be weak and confiding and his very imbecility and credulity should receive all practical protection. But it would be inexpedient and unwise to regard every private fraud as a legal crime. It would be better for society to leave them to civil remedies. Rex v. Goodhall, Russ. & R. 461; Roscoe, Crim. Ev. (2d ed.) 419. The pretense must relate to past events. Any representation or assurance in relation to a future transaction, may be a promise or covenant or warranty, but cannot amount to a statutory false pretense. They afford an opportunity for inquiring into their truth, and there is a remedy for their breach, but it is not by a criminal prosecution. StuyvesanOs Case, 4 City Hall Rec. 156; Rex v. Codrington. 1 Car. & P. 661; Roscoe, Crim. Ev. (2d ed.) 422. The only case. Young v. Rex, 3 T. R. 98, which has been supposed to conflict with this doctrine, clearly supports it. In 3 Archibold, Criminal Practice & Pleading, 467, it is said : "In order to convict a man of obtaining money or goods by false pretenses, it must be proved that they were obtained under such circumstances that the prosecutor meant to part with the right to the property in the thing obtained, and not merely with the pos- session of it." State v. AncL rson, 47 Iowa, 112. It is not necessary that the proof should be direct but such evi- dence must be given and such facts established as tend legitimately and necessarily to show the existence of such intent. People v. Pmclcney, 51 N. Y. S. R. 310; Lesser v. People, 73 N. Y. 78. The gist of the offense is that the false pretense must be of a past event, or of some fact alleged to have a present existence, and not of something to happen hereafter. Mere falsification is not sufficient to maintain an indictment for this offense. Jones v. United States, 5 Cranch, C. C. 653; Ranney v. J ^eople, 22 N. Y. 413; Keller v. State, 51 Ind. Ill; Lesser v. People, L2 I lun, 668; State v. Mills. 17 Me. 211; State v. Rowley, 12 Conn. L01; Com. v. Drew, 19 Pick. 17'.). §436. Must Relate to ;in Existing Fact.- The frequency 704 LAW OF EVIDENCE IN- CRIMINAL CASES. with which indictments for this offense are found and tried, will excuse an extended examination of the principles that must un- derlie and characterize the prosecution or the defense, or should govern the juridical view of the crime, when in the charge to the jury it becomes necessary to properly outline its characteristics — or suggest the implications the evidence necessarily involves, or the nature and scope of the facts necessary to be shown in order to sustain a conviction. A very recent case decided by the supreme court of Pennsyl- vania, well states the prevailing view in that jurisdiction. And after a critical examination of various statutory regulations on the subject, the phraseology of the Pennsylvania law is found to be similar in import with that employed in several other instances. Under these circumstances, I shall consider myself warranted in citing a somewhat extended extract from the opinion of Mr. Jus- tice Paxson : "The question is whether the indictment sets forth an indicta- ble offense. It contains two counts, in each of which the defend- ant is charged with cheating by false pretenses. The particular act alleged was the procuring of the prosecutor's indorsement of the defendant's promissory note, and the false pretense charged consisted in his representing that he would use the note so in- dorsed to take up and cancel another note then about maturing, ami upon which the prosecutor was liable as indorser. In other \\( ads, the note was given in renewal of another note of like amount, and the indictment charges that the defendant, instead of using it for this purpose, procured it to be discounted and used a portion of the proceeds for other purposes. "A false pretense, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the fut- ure. The man who asserts that he is the owner of a house states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise is another and very different affair. That occurs when a man fails to pay his note. It is true Chief Justice Gibson doubted, in Com. v. Burdick, v 2 Pa. 164, 44 Am. Dec 186, whether every naked lie by which a credit has been gained is not a false pretense within the statute. This doubt has run its course, and has long since ceased to disturb the criminal law of this state. . . . FALSE PRETENSES. 705 "In the case in hand there was no assertion of an existing fact, nor was there anything done by which even a credit was given. The credit had been obtained when the original note was indorsed; the present note was indorsed in lieu of and for the purpose of taking up the original; the failure to use it for such purpose was certainly a dishonest act on the part of the defendant, but we do not think it punishable under the statute defining false pretenses." Com. v. Moore (Pa.) 3 Crim. L. Mag. 839. False pretense relates not merely to the general mode of deal- ing of him who makes it, but the nature of the transation in which he is then engaged. If he is the proprietor of a retail store, and buys goods in the usual way, to be sold therein, he is ■" carrying on business and dealing in the regular course of trade;" but if he buys goods to be carried away, and sold at wholesale for half their value, he is not "dealing in the ordinary course of trade." The representation of his intention in regard to the dis- position of the property may be an important element in the pre- tense that he is dealing in the ordinary course of trade. Indeed, it may be the characteristic and distinguishing feature of the false pretense. The act of purchase in its external features is the same whether it is in the ordinary course of dealing or a wroner- ful procurement of property with intent to defraud. The inten- tion of the purchaser in reference to the disposition of the goods makes it the one or the other, and his statement of that intention, in connection with a representation that he is the proprietor of a retail store, may be in itself a statement that he is dealing in the ordinary course of trade, or that he is not, according as he says that he expects to sell the goods in his store in the usual way. or that he intends to devote them to a different kind of use. It must be a statement of a fact, and not a promise, or a mere ex- pression of a purpose. Com v. Walker, 10S Mass. 309. To 'in- stitute the offense it is not necessary that the pretense should be made in the express words set out in the statute. It is enough it it is plainly and intelligibly made in any form of words. Com. v. Brew, 153 Mass. 5s^, 13 Crim. L. Mag. 736. It must clearly appear in evidence that the accused obtained the title, together with the possession of the complainant's prop- erty, by means of false pretense, a- it is well settled that mere possession, in the absence of any intent on the pari of the owner to renounce the title, constitutes a different offense. State v. 45 706 LAW OF EVIDENCE IN CRIMINAL CASES. Kube, 20 Wis. 217, 91 Am. Dec. 390; State v. Vickery, 19 Tex 326; Zink v. People, 77 K Y. 114, 33 Am. Kep. 589; Glims v State, 43 Tex. 494; People v. Rae, 66 Cal. 423, 56 Am. Kep. 102 Com. v. Eichellerger, 119 Pa. 254; &mtYA v. People, 53 N. Y 111, 13 Am. Rep. 474; State v. Hall, 76 Iowa, 85; Ross v. Peo /?&, 5 Hill, 294; Miller v. Com. 78 Ky. 15, 39 Am. Rep. 194; March v. State, 117 Ind. 547. At tlie trial of an indictment against a person charged with obtaining money by false pretenses, letters written by him tend- ing to show that he committed the crime, are admissible in evi- dence against him, although they also tend to show that he com- mitted other crimes. Com. v. Blood, 141 Mass. 571. And if there is any evidence in support of an allegation in an indictment there is no variance between the allegation and the proof, although the evidence is contradictory; and, if the question of variance is submitted to the jury under proper instructions, the defendant has no ground of exception. Com. v. Blood, supra. The mere statement of an intention to do a certain thing, al- though made to induce the sale and although the buyer had not the intention stated is not a false pretense within the statute. Ranney v. People, 22 1ST. Y. 413; Rex v. Goodhall, Russ. & R. 461; Rex v. Douglas, Mood. C. C. 462; Scott v. People, 62 Barb. 62; Reg v. Lee, 9 Cox, C. C. 304; Rex v. Dale, 7 Car. & P. 352; People v. Tompkins, 1 Park. Crim. Rep. 224; Com. v. Fisher, 9' Phila. 594; Johnson v. State, 41 Tex. 65; Reg. v. Archer, Dears. C. C. 453, 1 Jur. N. S. 479; Reg. v. Bates, 3 Cox, C. C. 203, 204;. Rt g. v. Johnston, 2 Mood. C. C. 254; State v. Magee, 11 Ind. 155; Glackan v. Com. 3 Met. (Ky.) 233; People v. Getchell, 6 Mich. 496; Cowen v. P, qple, 14 111. 348; Com. v. Frey, 50 Pa. 245; 2 Russell, Crimes (6th ed.) 300; Bishop, Crim. L. (5th ed.) 419, 479. The indictment must show what the false pretenses were, and state them with reasonable certainty and precision. Rex v. Mason, 1 Leach, C. C. 487; Reg. v. Henshaw, Leigh & C. 444. It is not necessary that the prosecution should prove them all. State v. Mills, 17 Me. 211; Rex v. Hill, Russ. & R. 190. By reference to Cowen's Criminal Digest at page 320, we find it stated that "a false pretense must relate to an existing fact, any representation as to what will or will not happen cannot be con- FALSE PRETENSES. 707 sidered as a false pretense. So that if a man obtains goods by promising to pay cash for them, or to pay for them at a future time, or gives his note for them with assurances that it will be paid at its maturity, when at the same time he does not intend to pay, these are false promises because there is no pretense that any fact exists; there is no representation as to what is then untrue." And again he says : "As a general rule, there must be a false repre- sentation by words, written or spoken by the accused, or by some one for him, to which he gives his assent. A mere false show or appearance, however specious or successful it may be, will not support a prosecution under the statute. The false pretense must not only be a misrepresentation as to an existing fact, but it must be a willful misrepresentation; or, in other words, the party must know that he is making a false misrepresentation, and it must be so alleged in the indictment. . . . The false pretense must be one, to which the jury may believe the person defrauded might and actually did give credit." And again he says, at page 320 : " An allegation by speech is necessary to constitute false pre- tense." And again : " No false pretense made after the delivery of goods, can support an indictment for obtaining such goods by false pretenses. Then, also, pretenses must be predicated on some matter or thing pretended then to be in existence, but which in truth was not," People v. Conger, 1 "Wheel. Crim. Cas. 448; Allen's Case, 3 City Hall Kec. 118; Ranney v. People, 22 X. Y. 413; Conger's Case, 4 City Hall Eec. 05; 1 Colby, Crim. L. 501- 503. In 2 Russell On Crimes at page 288, it is said : "Barely asking another for a sum of money is not sufficient, but some pretense must be used and that pretense false, and the intent is necessary to constitute the crime." Wharton in his work on Criminal Law (7th ed.) says : " There must be always something to show adequately that a party de- frauded was induced to part with his property by reiving upon the truth of the alleged statements." Section 21as«#, 2 Car. & K. 306; Com. v. Coe, 115 Mass. 481; Com. v. Choate, 105 Mass. 459; Com. v. £/o?^, 4 Met. 43; Bex v. Dunn, 1 Mood. C. C. 146; 6W. v. Price, 10 Gray, 172, 71 Am. Dec. 668; Bex v. Oddy, 2 Den. C. C. 264; Com. v. Ferrigan, 44 Pa. 386; 7?eo/. v. Forster, Dears. C. C. 456; People v. iroo<#, 3 Park. Crim. Rep. 681; Bottomley v. United States, 1 Story, 135; Stout v. People, 4 Park. Crim. Rep. 71; Wood! v. United States, 41 U. S. 16 Pet, 360, 10 L. ed. 994; Beg. v. Bich- ardson, 8 Cox, C. C. 448; Beg. v. Francis, 12 Cox, C. C. 612; Beg. v. Cooper, L. R. 1 Q. B. 19. § 440. Evidence of Ability to Repay the Amount Obtained Immaterial. — It is no defense to an indictment alleging the obtaining of money by false pretenses, that the person so obtain- ing the money intended to repay it, and evidence of ability to make the repayment is immaterial. Where the property obtained by false pretenses is a check for $7000, evidence that the check, which was given as for a loan of money, was drawn on a bank, that the drawer at the time made deposits in two banks and was in the habit of drawing on one of them, is sufficient to warrant the jury in finding that the check was of value. Com. v. Coe, 115 Mass. 481. § 441. Pretense must be such as to Mislead Men of Ordi- nary Prudence — Contradiction in the Decisions. — A criminal prosecution cannot be based upon false representations which are not of such a character that a man of common understanding is justified in reiving upon them. State v. Burnett, 119 Ind. 392. This ruling of the Indiana court is utterly repudiated in other jurisdictions and must be regarded as a startling digression from the entire current of recent authority. Mr. Wharton says (2 Am. Crim. L. § 1188): "The prosecutor's capacities and oppor- tunities must be considered in determining his culpability. The question of carelessness is to be determined from the prosecutor's standpoint. To obtain from a jeweler money by exhibiting a spurious jewel might not be within the statute for the jeweler to offer the same spurious stone to an ignorant customer. Gross FALSE PRETENSES. 715 ■carelessness is to be determined by the capacity of the prosecutor. The weaker the mind, the less stringent the rule." Mr. Bishop says (2 Crim. L. §§ 433, 436): "But must the pre- tense be such as it is calculated to mislead men of ordinary pru- dence ? Some of the other cases rtiy down the doctrine that it must. But in reason, and it is believed, according to the better modern authorities, a pretense calculated to mislead a weak mind, if practiced on such a mind, is just as obnoxious to the law as one calculated to overcome a strong mind, if practiced on the latter. Practically, it is impossible to estimate a false pretense otherwise than by its effect. It is not an abso- lute thing, to be handled and weighed as so much material substance, it is a breath issuing from the mouth of a man, and no •one can know what it will accomplish except as he sees what in fact it does. Of the millions of men on our earth, there is not one who would not be pronounced to hold some opinion, or to be influenced in some affair, in consequence of considerations not adapted to affect any mind of ordinary judgment and discretion. And no man of business is so wary as never to commit, in a single instance, a mistake such as any jury would say on their oath could not be done by a man of ordinary judgment and discretion. These facts being so, plainly a court cannot, with due regard to the facts of human life, direct a jury to weigh a pretense, an argument, an inducement to action, in any other scale than that of its effect." There has been a conflict of opinion as to whether the false pretenses, to be indictable, should be such as would necessarily impose upon a man of ordinary prudence. In New York. Penn- sylvania, Arkansas, and some of the other states, if has been held that a representation, though false, is not within the statute mak- ing it an offense to obtain money or other property under false pretenses, unless calculated to deceive persons of ordinary pru- dence. In Pennsylvania and New York such is no longer the law, it being now held that it is not less a take pretense that the party imposed upon might by common prudence have avoided the imposition. We think that it is generally received both in England and the United States as the law. that the pretense need not be such an artificial device as will impose upon a man of ordi- nary prudence or caution, that the pretense need nol he such as cannot be guarded against by ordinary caution or common pru- dence. Colbert v. State, 1 Tex. App. 314. 716 LAW OF EVIDENCE IN CRIMINAL CASES. If the construction should be narrowed to cases which might be guarded against by common prudence, the weak and imbecile, the usual victims of these pretenses, would be left unprotected. State v. Mills, 17 Me. 211. It is none the less a false pretense because the party imposed on might, by common prudence, have avoided the imposition. Com. v. Henry, 22 Pa. 253. The object and purpose of the law is, to protect all persons alike, without regard to the single capacity to exercise ordinary caution, a condition of mind very difficult of definition, and cer- tainly of very different meaning under the various circumstances that may surround the person supposed to exercise it. Thus, a child entrusted with a watch, money or other valuables, to be borne to an artificer, merchant or friend might be induced by the most flimsy and self-apparent falsehoods, to part with it; still, if these representations were of a character to secure the credit of the child and deprive it of the possession of the goods, however- absurd such representations might seem to the more mature and experienced, yet it would be such false pretenses by one person to another as deprived that other of his personal property, as con- templated by the letter and spirit of the law. Bowen v. State, 9 Baxt. 45, 40 Am. Eep. 71. § 442. Distinction between Larceny and False Pretenses. — The distinction between the two crimes is sometimes very narrow,. but yet it is well defined. Where, by means of fraud, conspiracy or artifice, possession of the property is obtained with felonious intent and the title still remains in the owner, larceny is estab- lished; while the crime is false pretenses if the title as well as the possession is absolutely parted with. In Com. v. Barry, 124 Mass. 325, there was evidence that as A was passing a bar-room, the defendant, a girl, called him in, and he, at her request, gave her money to buy a bottle of brandy; they went upstairs together, and she said this bottle would not be enough for the night, and asked for more money with which to< buy another bottle. A thereupon gave her a twenty-dollar bill to get a quart of brandy, the price of which was §3, not expect- ing to receive the bill back, but the change after deducting the- price of the brandy; the defendant went out, and soon returned with another girl, saying she could not get it; the other girl said she knew where to get it, and the two girls w T ent out, and he saw FALSE PRETENSKS. 717 no more of them or his money. Upon this evidence the supreme court of Massachusetts had no difficulty in holding the defendant properly convicted of larceny. In the case of Loomis v. People, 67 K Y. 322, 23 Am. Rep. 123, it appeared that Lewis, one of the prisoners, made the acquaintance of Olason, the prosecutor, and under the pretense that he had a check for $500 lie desired to get cashed at a bank, invited Olason to go with him; he led him into a saloon, where was the prisoner Loomis, a confederate of Lewis. Lewis proposed to Loomis to throw dice; they did so for $5, and Loomis lost; they then proposed to throw for slOO. Lewis asked Olason to lend him $90, saying, "I am sure to heat him again, and you can have your money back. If I do lose I have got the check for $500, and we will go up to the bank and get the check cashed, and you can have the money." ( Mason let him have the $90, the dice were thrown, and Lewis lost. Olason insisted on the return of his money; the purported check was then put up against $100, and Lewis again lest; Loomis and Lewis thereupon went away. The court charged the jury that if satisfied, that the two prison- ers conspired fraudulently to obtain the complainant's money, and to convert it absolutely without his consent, they could con- vict of larceny; and it was held no error, and that the evidence was sufficient to sustain the conviction, the court observing: "It was a clear case of larceny. . . . The form of throwing the dice was only a cover, a device and contrivance to conceal the original ■design and so long-as there was no consent to part with the money, does not change the real character of the crime. While the element of trespass i> wanting, and the offense is not larceny where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even al- though such consent was procured by fraud, and the person obtain- ing it had an animus furandi', yet, a,- is well .-aid by a writer upon criminal law: 'It is different where, with the animus furandi, .-, person obtains consent To his temporary possession of property, and then converts it to his own use. The act goes farther than the consent, and may be fairly said to be against it. Consenl to deliver the temporary possession i- not consent to deliver the property in a thing, and if a person, animo furandi avails himself oi a temporary possession for a specific purpose, obtained h\ con sent, to convert the property in the thing to himself, and di I 718 LAW OF EVIDENCE IN CRIMINAL CASES. the owner thereof, lie certainly has not the consent of the owner. Me is, therefore, acting against the will of the owner, and is a trespasser because a trespass upon the property of another is only doing some act upon that property against the will of the owner.' " § 443. Examination of the English Rule. — " By 24 and 25 Viet., chap. 90, § SS, whosoever shall, by any false pretense ob- tain from any other person any chattel, money, or valuable secur- ity, with intent to defraud, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three (now five) years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confine- ment. " By the same section it is provided ' that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acrpiitted of such misdemeanor, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for lar- ceny upon the same facts.' " By the same section, ' provided also, that it shall be sufficient in any indictment for obtaining, or attempting to obtain, any such property by false pretenses to allege that the party accused did the act with intent to defraud, without alleging any intent to defraud any particular person, and without alleging any ownership of the chattel, money, or valuable security, and on the trial of any such indictment, it shall not be necessary to prove an intent to de- fraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to de- fraud.'" 2 Roscoe, Crim. Ev. (8th ed.) *497. On an indictment for obtaining goods by false pretenses, the government is not held to proof of all the pretenses alleged. See cases cited in 2 Bishop, Crim. Proc, §§ 165-171. But if there is no variance in such case, it certainly would savor of great refine- ment to hold that there is a variance when the indictment charges a conspiracy to obtain the goods by several false pretenses, and only one is proved. The ground taken in argument is, that in the latter case the agreement between the conspirators is not proved as laid. But the means by which the cheating is to be accomplished are not necessarily to be held to be indivisible. The FALSE PKETE.NSES. 719 specification of them is required in our practice, in cases wheie the purpose itself of the alleged conspiracy is not criminal or un- lawful, in order that it may appear that the means contemplated to carry it out are criminal and unlawful. According to the practice in England, as we gather from the course of the decisions, it is not necessary to set out the contem- plated means for effecting the cheat. Rex v. Gill, 2 Barn. & Aid. 204; Reg. v. Gompertz, 9 Q. 1!. 824; Sydserff v. Reg. 11 Q. B. 215 ; Latham v. Reg. 5 Best. & S. 035. But in order to give needed information to the court and to the defendant, where there is merely a general charge of a conspiracy to obtain goods by false pretenses, a specification of particulars is ordered by the court, if moved for. Reg. v. K< nrick, 5 Q. B. 19; Rex v. Ham- ilton. 7 Car. & P. US; Reg. v. Brown, 8 Cox, C. C. 69. In Massachusetts, as in others of the United States, it is held that this information should be given in the indictment, in cases where the purpose of the conspiracy itself does not appear to be crim- inal or unlawful, and that this rule applies to conspiracies to cheat, as cheating is not necessarily criminal or unlawful. Com. v. Hunt. 1 Met. Ill ; Com. v. Eastman, 1 Cush. 189, 18 Am. Dec. 590 ; Com. v. Shedd, 7 Cush. 511; Com. v. Wallace, 16 Gray, 221. § 111. Partial Review of the Authorities. — In Loomis v. People, 67 X. Y. 329, 26 Am. Rep. 123, it is stated: - Where, by fraud, conspiracy, or artifice, the possession is obtained with a felonious design, and title still remains in the owner, larceny is established. Where title as well as possession is absolutely parted with, the crime is false pretenses.*' Compare Whart Am. Crim. L. (9th ed.), §§ 961, 965. and Kellogg v. State, 26 Ohio St. 15. In People v. Clough, 17 Wend. 351,31 Am. Dec. 303, false pretenses were used to obtain charity, and it was held that the obtaining money by the applicant for that purpose by such means was not a criminal offense, as they called upon the donor to per- form a moral duty, arising out of compassion, and that the statute was deshmed only to protect persons in their commercial dealings; an d in Peopl V.Thomas, ■'< Hill. L69, the false pretenses induced the performance of a legal duty, and for that reason constituted no criminal offense. In Virginia, the statute makes the obtaining of money or other property by any false pretense, larceny. In that .talc, the court 720 LAW OF EVIDENCE IN CRIMINAL CASES. holds that an indictment for the offense may be either in the form of an indictment for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny. Leftwich v. Com. 20 Gratt. 710; Dowdy v. Com. 9 Gratt. 727, 704. 60 Am. Dec. 314. If any of the pretenses are false, to which persons of ordinary caution would give credit, it is sufficient. People v. Haynes, 11 Wend. 557; People v. Thomas, 23 K Y. 321. Any false pre- tense, which induces confidence, is sufficient. Thomas v. People, 'OX.Y. 352; Smith v. People, 47 K Y. 303. Under the common law a false bank check is not a false token. ■Com. v. Speer, 2 Va. Cas. 65 ; Com. v. Swinney, 1 Ya. Gas. 146 ; Rex v. Lara, 6 T. E. 565 ; Rex v. Flint, Buss. & R. 460 ; State x. Justice, 13 N. C. 199; State v. Stroll, 1 Rich. L. 244; Whart. Am. Crim. L. §§ 2061, 2065; 2 Russell, Grimes, 2S5, 2S6 ; 3 Archb. Crim. Pr. & PI. 473, and notes by Waterman. Even where the evidence shows that the accused had both the intention and the ability to pay for the articles purchased, a con- viction must follow. The act is not bereft of its criminality by evidence of intent or ability to pay. Com. v. Coe, 115 Mass. 481; Com., v. Mason, 105 Mass. 163. It is not of the essence of the misdemeanor that the defendant should be unable to restore that which he wrongfully obtains. If, by a false pretense, he had pro- cured the loan of $500 in bank notes, his ability to refund the monev would not shield him. and it would not be necessary to aver his inability to repay. State v. Fletcher, 35 N. J. L. 445. In the English case of Reg. v. Bryan, 1 Dears. & B. C. C. 265, decided in l x <'>7. the prisoner succeeded in obtaining a substantial loan from a pawnbroker on some very inferior spoons by fraudu- lently and falsely representing them to be as good as " Elkington's A," spoons, to have as much silver on them, that the foundations were of the best material, etc. It was held, however, that he could not be convicted of obtaining money by false pretenses, because his statements were in the nature of "mere praise or exaggeration, or puffing." " It seems to me," said Lord Campbell, Ch. J., "it never could have been the intention of the legislators to make it an indictable offense for the seller to exaggerate the quality of that which he is selling, any more than it would be an indictable offense for the purchaser, during the bargain, to depreciate the quality of the FALSE PRETENSES. 721 goods, and to say that they were not equal to that which they really were ... As yet, I find no case in which a mere mis- representation at the time of sale of the quality of the goods has been held to be an indictable offense." Shirley, Lead. Crim. ■Cas. 66. The intent with which the alleged false pretense is perpetrated, is always a question of fact for the jury, and is an essential ingre- dient of the charge. The evidence must disclose the intent to the satisfaction of the jury. Trogdon v. Com. 31 Graft. 872; People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240; Brown v. People, 16 Hun, 535; Parmelee v. People, 8 Hun, 623. In Reg. v. Mills, 1 Dears. & B. C. C. 205, the prisoner was charged with obtaining money by the false pretense that he had cut sixty-three fans of chaff, when in fact he had only cut forty- five. It appeared by the evidence that the prisoner was em- ployed to cut chaff at twopence per fan, and that on making the false pretense alleged in the indictment, he demanded 10s. 6d. from the prosecutor. The prosecutor had previously seen the prisoner remove eighteen fans from an adjoining place and add them to the heap which he pretended he had cut, but, notwith- standing this knowledge, he paid the prisoner the amount he demanded. It was held that there ought not to be a conviction, because the money had not been obtained by means of the false pretense. ''The test is," says Coekburn, C/t. J., "what is the motive operating on the mind of the prosecutor which induced him to part with his money? Here the prosecutor knew that the pre- tense was false, he had the same knowledge of its falseness as the prisoner. It was not the false pretense, therefore, which induced the prosecutor to part with his money; and if it is said that it was parted with from a desire to entrap the prisoner, how can it be said to have been obtained by means of the false pretense \ " It must always appear in eviden m an indictment for obtain- ing goods by false pretenses, that the prosecutor parted with the goods upon the faith of the false pretense alleged. 46 CHAPTER LII. LARCENY. § 445. Larceny Defined. 446. Larceny Includes False Pretenses and Embezzlement. 447. Distinction between Larceny and False Pretenses still Preserved. 448. Felonious Intent must be Shown. 440. Every Larceny must Include a Trespass. 450. Corpus Delicti must be Shown. 451. Wliat may be Shown when Identity is in Question. 452. Recent Possession of Stolen Property may be Shown. 453. Evidence of other Similar Offenses. 454. Case of Peg. v. Thomas Considered. 455. Evidence of Value. 456. New York Rule as to Name of Party Defrauded. 457. Review of Miscellaneous Authorities. § 445. Larceny Defined. — "A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either, "1. Takes from the possession of the true owner, or of any other person, or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; or, "2. Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, as?* K-iation, or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or per- son entitled to the benefit thereof: 722 LARCENY. 723 "Steals such property, and is guilty of larceny." N. Y. Penal Code, § 528. ' Larceny, by the common law, is defined to be "the felonious taking and carrying away of the personal goods or property of another." Jolmson v. People, 113 111. 99. § 446. Larceny Includes False Pretenses and Embezzle- ment. — The definition of the term larceny has now been broad- ened so as to take within it the offenses formerly known as false pretenses and embezzlement. And as between them and the common law offense of larceny, a distinction remains which must be observed in the presentation by indictment. People v. Dumar, 106 N. Y. 502. And we think the change exists only in the defi- nition, and does not go to the legal effect except so far as it is produced by the terms of the statute. And that as relating to those offenses which have been given the name of larceny by the statute, the consequences in respect to the property taken continue the same as they were before. The principle upon which the dis- tinction in that respect rested, was that larceny at common law was the act of feloniously taking property, which was without the consent of the owner, while obtaining it by false pretenses was produced by the consent and delivery of it by the owner to the fraudulent vendee, and when so delivered with the intent at the time being to part with the title and invest it in the latter, the effect of a common law larceny was not given to it, so as to defeat the title of a bona tide purchaser for value. Zink v. Peo- ple, 77 K Y. 114, 33 Am. Rep. 589. The same reason for this rule exists now as before the applica- tion of the extended definition, in Benedict v. Williams, 48 Hun, 123. The distinction, although fine, is quite clear, between larceny and obtaining money under false pretenses. Thome v. Turck, 94 N. Y. 95, 46 Am. Rep. 126, citing Loomis v. People, 67 N. Y. 329, 23 Am. Rep. L23. § 447. Distinction between Larceny and False Pretenses still Preserved. — The distinction between larceny and false pre- tenses is a very nice one in many instances. In some of the old English cases the difference is more artificial than real, and rests purely upon technical grounds. Much of this nicety is doubtless owino- to the fact that at the time many of the eases were decided larceny was a capital felony in England, and the judges naturally 724 LAW OF EVIDENCE IN CK1MINAL CASES. leaned to a merciful interpretation of the law out of a tender regard for human life. The distinction between larceny and cheating by false pretenses is well stated in Russell, Crimes (5th Am. ed.) 28. After an exhaustive review of the cases the learned author says: "The correct distinction in cases of this kind seems to be that if, by means of any trick or artifice, the owner of prop- erty is induced to part with the possession only, still meaning to retain tlie right of property, the taking by such means will amount to Larceny; but if the owner part with not only the possession of the goods, but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses." Com. v. Eichclberger, 119 Pa. 254. There is still in the state of New York the crime of larceny, and the crime of obtaining property under false pretenses, with different definitions by statute, and subjecting the offender to dif- ferent punishments; the one a misdemeanor, the other a felony. All distinction between them has been abolished in some of the states of the Union, but until the legislature interferes, the courts of this state have no right or power to disregard that distinction however technical it may seem. This distinction as we under- stand it is this: In larceny, the owner of the thing stolen has no intention to part with his property therein; in false pretenses, the owner does intend to part with his property in the thing, but this intention is the result of fraudulent contrivances. And one test we conceive to be this: Could the offender confer a good title upon another by the sale and delivery of the thing? I do not mean to apply this test to the case of money, but goods and chat- tels. If obtained by larceny it is clear he could not. Bassett v. Spoford, 45 K Y. 3S8, 6 Am. Rep. 101. If obtained by fraud it is equally clear that he could, for in that case the property passes in the subject-matter. In the former case it does not. § 44s. Felonious Intent must be Shown. — The felonious in- tent must exist at the time of taking or obtaining possession of the property, where the possession is obtained by means of false representation or pretense. Where, however, the offense con- sists in the secreting, withholding or appropriating, or where it consists in the appropriating of property by bailee, servant, attor- ney, agent, clerk, etc., it is only necessary that the felonious intent exists at the time of such secreting, withholding or appropriating LARCENY. 725 of the property, for in such cases the property stolen would be property in the possession of the party secreting, withholding or appropriating it. People v. Moore, 37 Hun, 84. It has been my endeavor in a somewhat extended investigation of the rules of evidence required in crimes of this nature, to re- produce the most recent judicial comment upon the subject. A formidable array of authority has been critically examined; and my conclusion is that Chief Justice Leonard of the Nevada supreme court in the case of State v. Slingerland, 19 JSev. 135, has stated the conclusions of both reason and authority that underlie this entire topic of evidence of intent in cases of larceny. It should be borne in mind, that there is a studious attempt in certain quarters to engraft a refinement upon the law governing larceny, in order that it may appear that an essential ingredient of the offense is wanting where the taking of the property is shown to have been without a view to pecuniary profit, but rather in a spirit of malicious mischief. In reproducing Judge Leonard's opinion, my idea is, to dissipate the errors arising from this view; and show the inadmissibility of evidence tending to establish a mere malicious taking with a view to annoyance and vexation. His honor says, in commenting upon an instruction which was alleged to have been erroneous : "The court instructed the jury that, if they believed beyond a reasonable doubt that the defendant took the property as alleged in the indictment, with the intent to permanently deprive the owner of the property, and without any intention to return the same, it was a felonious intent, and the defendant was guilty. It is claimed that this instruction is erroneous in stating that the crime of grand larceny may be committed, although the taker of the property alleged to have been stolen derives no benefit, and does not intend or expect to be benefited therefrom. If one of the essential elements of larceny is an intention to profit by the conversion of the property, then the instruction under considera- tion was incorrect. A court cannot instruct a jury that certain facts constitute a certain offense, unless every essential fact neces- sary to constitute the offense be included in the statement. Weston v. United States, 5 Cranch, C. C. 404. Although the authorities upon this question are somewhat conflicting, those sustaining the instruction greatly preponderate, and, in our opin- ion, they are upheld by good sense and sound reason. 726 LAW OF EVIDENCE IN CRIMINAL CASES. " In State v. Mills, 12 Nev. 403, this court acknowledged the correctness of the principle that, where the intent is to deprive the owner of his property, it is not essential that the taking should be with a view to pecuniary profit. " In Dignowitty v. State, 17 Tex. 530, 67 Am. Dec. 670, the court said : ' But to constitute the felonious intent, it is not nec- essary that the taking should be done lucri causa; taking with an intention to destroy will be sufficient to constitute the offense, if done to serve the offender or another person, though not in a pecuniary way.' "And, said the court in Hamilton v. State, 35 Miss. 219 : ' The rule is now w-ell settled that it is not necessary, to constitute lar- ceny, that the taking should be in order to convert the thing stolen to the pecuniary advantage or gain of the taker, and that it is sufficient if the taking be fraudulent, and with an intent wholly to deprive the owner of the property.' Roscoe, Crim. Ev. (2d ed.) 533; Bex v. Cabbage, Russ. & II. 202; Hex v. Morfit, Russ. & It. 307. And it is said by the commissioners of criminal law in England, that 'the ulterior motive by which the taker is influenced in depriving the owner of his property altogether, whether it be to benefit himself or another, or to injure any one by the taking, is immaterial.' The rule we consider to be in ac- cordance with the principle on which the law of larceny rests, which is to punish the thief for wrongfully and feloniously de- priving the owner of his property. The reason of the law is to secure a man's property to him, and that is to be carried out rather by punishing the thief for feloniously depriving him of it, than fur wrongful gain he has made by the theft. The mortal wrong is founded in the wrongful and felonious deprivation." " Sustaining the same doctrine in Warden v. State, 60 Miss. 640, the court said : ' It seems to meet the approval, also, of most of the modern w T riters on criminal law, and to be sanctioned by many cases both English and American.' "In State v. South, 28 N. J. L. 2s, 75 Am. Dec. 250, the ques- tion was whether the fraudulently depriving the owner of the temporary use of a chattel is larceny at common law; whether the felonious intent or animus furandi may consist with an intention to return the chattel to the owner. It was held that if the prop- erty is taken with the intention of using it temporarily only, and then returning it to the owner, it is not larceny; but if it appear LARCENY. 727 that the goods were taken with the intention of permanently de- priving the owner thereof, then it is larceny. And in State v. Davis, 3S IS". J. L. 177, 20 Am. Rep. 367, the same court adhered to the doctrine announced in State v. South, supra, and said : ' There has been no case decided in this state that has held that where the taker had no intention to return the goods, that the taking was merely temporary. Nor is there anything that should control the action of the jury, or the court acting as such, under the statute, when they find that the party having no such intent is guilty of larceny. It would be a most dangerous doctrine to hold that a mere stranger may thus use and abuse the property of another, and leave him the bare chance of recovering it by care- ful pursuit and search, without any criminal responsibility in the taker. 1 " In Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506, and Com. v. Mason, 105 Mass. 166, it was held that the wrongful taking of the property of another, without his consent, with intent to con- ceal it until the owner offered a reward for its return, and for the purpose of obtaining the reward, was larceny of the property taken. And see also, People v. Jaurez, 2s Cal. 380; State v. Brown, 3 Strobh. L. 516; Keely v. State, 11 Ind. 36; Bex v. Cabbage *1 Russ. & R. 292; 1 Bex v. Morfit, Russ. & R. 307; Reg. v. Hollo- way, 1 Den. C. C. 376, note a. . . . " Mr. Stevens, in his General View of the Criminal Law of Eng- land, 127 says : ' It is larceny to take and carry away a personal chattel from the possession of its owner with intent to deprive him of the property.' "Mr. Roscoe, in his Criminal Evidence, 621, says : 'Eyre, Ch. B., in the definition given by him, says : ' Larceny is the wrongful taking of the goods with the intent to spoil the owner of them lucri causa.'' And Blackstone says : 'The taking must be felo- nious, that is, done animo furandi, or, as the civil law expresses it, lucri causa.'' The point arrived at by these two expressions, animo furandi and lucri causa, the meaning of which has been much discussed, seems to be this, that the goods must be taken into the possession of the thief with the intention of depriving the owner of his property in them. . . . Property is the right to the possession, coupled with an ability to exercise that right. Bearing this in mind, we may perhaps safely define lar- ceny as follows : the wrongful taking possession of the goods of 728 LAW OF EVIDENCE IN CRIMINAL CASES. another with intent to deprive the owner of his property in them/ And see, Archb. Criin. Pr. & PI. (Pomeroy's Notes) 1185; Bar- bour, Crim. L. 174; 2 Bishop, Crim. L. SIS. "Against these authorities ... we are referred to four cases, viz: People v. Woodward, 31 Hun, 57; Smith v. Shultz, 2 111. 190; Wilson v. People, 39 K Y. 159, and United State v. DurJcee, 1 McAll. 196. In People v. Woodward, there was an able and exhaustive dissenting opinion by one of the three justices, and no authorities are cited in support of the majority opinion except Whart. Am. Crim. L. § 1784, and certain cases therein referred to, which do not sustain the text. In Smith v. Sh ulte, supra, the court only says : ' Every taking of the prop- erty of another without his knowledge or consent does not amount to larceny. To make it such, the taking must be accompanied by circumstances which demonstrate a felonious intention.' "But the court does not say there can be no felonious intent except there be a taking lucri causa. In Peg. v. Holloway, 1 Den. C. C. 376, Parke, B., defined 'felonious' to mean that there is no color of right or excuse for the act, and the intent must be to deprive the owner, not temporarily, but permanently, of the property. In Wilson v. People, supra, it was only decided that the felonious intent must exist at the time of the taking. In United States v. Durkee, supra, the court instructed the jury as follows : ' 1. That, if you believe from the evidence, that the pris- oner took and carried away the arms with intent to appropriate them, or any portion of them, to his own use, or permanently de- prived the owner of the same, then he is guilty. 2. But if you believe that he did not take the arms for the purpose of appropri- ating them, or any part thereof, to his own use, and only for the purpose of preventing their being used on himself or his associates, then the prisoner is not guilty.' . . . " To constitute larceny the taking must be felonious, and it is so when the intent is to permanently deprive the owner of his prop- erty, against his will." * *Note. — The extreme importance of this matter is quite obvious, whether the accused is to be precluded from introducing evidence tending to show that the taking was in a spirit of mere mischief, or was with a felonious intent, is evi- dently a question of considerable importance, at least to the party on trial. In the one case, he is punishable for misdemeanor with the possibility of a mere LARCENY. 729 § 449. Every Larceny must Include a Trespass.— It is a a well established, but somewhat technical rule, that every larceny flue. In the other case, it is treated as a felony, and he meets with a criminal's brand that follows him through life. That the distinction I have undertaken to outline is by no means fanciful, I will refer to the recent case of People v. Woodward, 31 Hun, 57, decided by the general term of the supreme court of the state of New York. Boardman, J., says; " Upon the evidence it is cer- tainly a grave question whether the act charged and proved was larceny or malicious mischief. To constitute larceny there must have been a felonious intent, animo furandi or lucri causa. The malicious killing of a horse is a misdemeanor. The offenses are quite distinct. In either case there is a tres- pass. In larceny the taking must be for the purpose of converting to the use of the taker. In malicious mischief no such intent is necessary. In the pres- ent case the evidence tends to show a taking of the horse to kill him, with a sole desire to injure the owner. It was incumbent on the court then to point out to the jury the legal elements in the crime of larceny, so as to distinguish it from malicious mischief. This, we think, was not done. The jury was told, in substance, if defendant took or procured to be taken this horse, and killed or aided in killing him, he must be found guilty. In no part of the charge is this language modified or qualified. "The seventh request to charge is as follows: 'There must have been a felonious intent, for without such an intent there was no crime, and the felonious intent must have been formed before the taking; and that if, before the taking of the horse, the intent was to take it and kill it, the crime would not be a felony, but an offense under the statute, classed among misdemeanors under the term of malicious mischief.' The defendant excepted to the refusal to charge as requested. The request to charge, the refusal to charge, and the exception are all very informal and inartificial, but sufficient, we think, to present the important point in the case. "The defendant was entitled to have the jury instructed in substance as re. quested. Mr. Wharton in his work on Criminal Law, §§ 1781-1784, has con- sidered whether larceny can exist where there is no intent on the part of the taker to reap any advantage from the taking. He has reviewed the decisions from the case of Rex v. Cabbage, 1 Russ. & R. 292, to the time of his writing, and concluded that the qualification, ' lucri causa,' has been accepted by our courts as an unquestioned part of the common law. He says (§ 1784): ' Thus it has been frequently held to be a misdemeanor, of the nature of malicious mischief, to kill an animal belonging to another, though it has never been held larceny so to kill and take, unless some benefit was expected by the taker.' And he cites, in support of such statement, among other cases, Com. v. Latch, 1 Mass. 59; People v. Smith, 5 Cow. 258; Loomis v. Edgerton, 19 Wend. 420. The conclusion is sustained by the authorities. " It was a serious matter for the defendant whether he should be convicted of grand larceny upon facts which he claimed could only constitute malicious mischief. He had the right to have the distinction pointed out to the jury. He requested it, but it was not done. Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny, whereby the defendant may have been convicted of a felony, while the facts and the charge 730 LAW OF EVIDENCE IN CRIMINAL CASES. must include a trespass, and that the taking must be under such circumstances, as that the owner might maintain an action of trespass. It follows, therefore, that the prosecutor must be in the actual or constructive possession of the property at the time of the taking. The application of these principles has been a fruit- ful source of litigation, and distinctions and refinements, which have rendered the administration of criminal justice in this class of cases exceedingly difficult. People v. McDonald, 43 N. Y. 61. And without this element the offense is not complete. 1 Hawk. P. C. p. 108, § 1; 2 Russell, Crimes (5th Am. ed.) 95; Eilderbrand v. People, 56 N. Y. 394, 15 Am. Rep. 435. Even although the owner is induced to part with his property by fraudu- lent means, yet if he actually intends to part with it, and delivers np possession absolutely, it is not larceny. Smith v. People, 53 K Y. Ill, 13 Am. Rep. 474; Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123. It is doubtless a general rule that every larcenous taking must be such as that trespass would lie therefor. Then another is, that trespass will not lie, unless the owner of the property is in the actual or constructive possession at the time of taking. Then another, that such possession must have existed apart from the charge of the property of the custodian; and that neither the civil nor the criminal action will lie, when such possession has been had only through his custody of it. But there have been some modifications of these rules. One is, that larceny may be charged, in such case, when the felonious appropriation is after the property reaches its ultimate destination. People v. Phelps, 72 N. Y. 334. § 450. Corpus Delicti must be Shown. — Every criminal charge necessarily involves two distinct propositions: (1) That a criminal act has been committed; (2) that the guilt of such act •were equally applicable to a misdemeanor. The learned county judge very properly and fully recognized the serious importance of this question when he stayed the execution of the sentence pending an appeal." The presiding justice Learned entered a vigorous dissent from the conclu- sions of his associates. While I have no wish to intrude upon this controversy, I cannot refrain from the observation that on principle and authority, the dis- senting view must be regarded as correct. The very opening sentence of Judge Learned's opinion is so ruthlessly logical, as to silence all argument in favor of the contrary rule. He says: " I cannot see why it is not as felonious to take another's property, with intent to injure him, as to do the same act in order to benefit the taker. Indeed, t/ce former is the more malicious act of the two." LARCENY. 731 ■attaches to the particular person charged with the commission of the offense. In cases of larceny it is, of course, essential for the prosecution to prove that the property was feloniously taken from the person named in the indictment as the owner. "It must appear that the goods were stolen from the prosecutor; and if he, being a witness, cannot swear to the loss of the articles alleged to have been stolen from him, the prisoner must be acquitted." 3 Greenl. Ev. § 161. In what manner may this proof be made '. Must it always be direct and positive ? Is it absolutely essential, in all cases, that the proof of the corpus delicti should be first established independent of the other elements of the offense? While it is true that a per- son charged with the commission of a criminal offense is not called upon to answer the charge without satisfactory proof, upon the part of the prosecution, of the corpus delicti, yet it is not essen- tial, in all cases, that there should be any direct evidence upon this point. Many of the eases are referred to in a note to 1 Bishop. Crim. Proc. § 1071. Some of them are cases like People v. Williams, •57 Cal. 108, where no evidence of any kind was offered upon that point. Bishop concludes the section by saving: "If we look at the matter as one of legal principle, we can hardly fail to be con- vinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be CQnvicted until it is in some way made clear that a crime has been committed, yet there can lie no one kind of evidence to be always demanded in proof of this fact any more than of any other. If the defendant should not be convicted when there has been no crime, su equally should he not be when he has not committed the crime, though somebody has; the one proposition is as impor- tant to be maintained as the other, yet neither should be put for- ward to exclude evidence which in reason ought to be convincing to the understanding of the jury." In State v. Keel< r, the court said: "The rule should be adhered to, with the utmost and strictest tenacity, that the facts forming the basis of the offense, or corpus delicti, must be proved either by direct testimony, or by presumptive evidence of the most cogent or irresistible kind, in one of these methods the essential fact or facts must be established bey< nd a reasonable doubt. But if thus establisl i d, - r if the jury can be or are satisfied oJ such 732 LAW OF EVIDENCE IN CELMINAL CASES. facts beyond this reasonable doubt, it matters not whether they are conducted to this result by direct or positive evidence. In other words, while the proof should be clear and distinct, it is not necessary that it should be direct and positive; for while that which is direct might be more satisfactory, less liable to deceive and mislead, this goes to its weight or effect, and by no means establishes that in no other way can the essential facts be shown with the requisite distinctness and clearness." 28 Iowa, 553. The fact that the corpus delicti may be established by circum- stantial evidence is well settled. Burrill, Circ. Ev. 680, 734;. Wills, Circ. Ev. 201; Reg. v. Burton, Dears. C. C. 282; Rex v. Burdett, 4 Barn. & Aid. 122; McCullough v. State, 48 Ind. 112; Brown v. State, 1 Tex. App. 155; Roberts v. State, Car. & P. 741. In that case the prosecutor gave the prisoner a sovereign to got changed, the prisoner failed to materialize with the equivalent, and the court held that he could not be convicted 736 LAW OF EVIDENCE IN CRIMINAL CASES. of larceny because the prosecutor had voluntarily divested him- self without the least expectation of its return. It is idle to speculate upon the reasoning which inspired this decision. Suffice it to say that it has been unqualifiedly con- demned by a court of very high repute in this country. It is an error to suppose that the doctrine of the case of Reg. v. Thomas had been adopted by the New York court of appeals. In the case of Hilderbrand v. People, 56 N. Y. 394, 15 Am: Rep. 435, where this court is supposed to have adopted that rule, the plaintiff in error had been convicted of stealing a $50 bill handed him to take out ten cents in payment for a glass of soda. The prisoner put down a few coppers upon the counter, and, when asked for the change, took the prosecutor by the neck and shoved him out of doors and kept the money. The prisoner was con- victed, and the conviction was affirmed by this court. The case of Reg. v. Thomas was cited and relied upon by the prisoner. The facts of the two cases differed, and, after criticising the case of Reg. v. Thomas as a nisi prius case and not authoritative for that reason, the court pointed out the difference between the facts of the case then being considered, without overruling or affirming the doctrine of Reg. v. Than nix. In Loomis v. People, 67 N. Y. 329, 23 Am. Rep. 123, the case of Reg. v. Thomas, was again referred to, and this court there de- clared that the weight of authority was decidedly opposed to the doctrine of that case, and again affirmed a conviction in which that ease was relied upon as an authority for reversal. The de- risions of this court have been uniformly against the doctrine of Reg. v. Thomas. In People v. McDonald, 43 N". Y. 61, this court held that : "If money or property is delivered by the owner to a person for mere custody or for some specific purpose, the legal possession remains in the owner, and the criminal con- version of it by the custodian is larceny." Again in Smith v. People, 53 X. Y. Ill, 13 Am. Rep. 474, it was said by Allen, J.. that "when the delivery of goods is made for a single and specific purpose the posses-inn is still supposed to reside, not parted with, in the first proprietor." The rule of Reg. v. Thomas was never adopted by this court, is not good law, and should be disregarded. § 455. Evidence of Value. — Without proof of the value of stolen property, there can be no conviction of larceny; and unless the record shows that there was such proof, the court will set LARCENY. aside a conviction, although the error was not pointed out by the counsel; and this, notwithstanding the property stolen was cur- rency as the United States silver certificates. It is always neces- sary to prove the value of the property alleged to have been stolen, in order to determine the grade of the offense and the penalty to be imposed; and in the absence of any evidence upon the subject of such value, the court must presume it to be nominal merely. But where the punishment of the offense charged does not depend on the value of the articles taken, proof of value is unnecessary, and the jury may ascertain whether or not the articles are of any value by inspecting them. Rapalje, Larceny & Kindred Offenses, § 140, citing Ware v. State, 33 Ark. 567; Whitehead v. State, 20 Fla. 841; Radford v. State, 35 Tex. 15; Hall v. State, 15 Tex. App. 40; Moore v. State, IT Tex. App. 176; State v. Krieg< r, 68 Mo. 98; Simpson v. State, 10 Tex. App. 6S1; Powell v. State, 88 Ga. 32; Stokes v. State, 58 Miss. 677; People v. Griffin, 38 How. Pr. 47:>; Com. v. Burke, 12 Allen. 182. The value of an article stolen is its market value; and evidence that it is worth S2Q to its owner, and worth nothing to anybody else, does not show its market value to be $20. To be of the market value of S2<> it must be capable of being sold for that sum at a fairly conducted sale, — at a sale conducted with reasonable care and diligence in respect to time, place and circumstances, for the purpose <>f obtaining the highest price. Locke v. State, 32 N. H. 106; State v. Ladd, 32 X. 11. 110; State v. Goodrich, 46 N. H. 186; Cocheco Mfg. Co. v. Strafford, 51 X. H. 481; State v. James, 58 X. H. 67. If the value, as alleged in the indictment, be the same as proved upon the trial, the verdict of guilty, as alleged in the indictment, is proper. If the value alleged in the indictment should be differ- ent from that established from the evidence, the jury, in render- ing a verdict of guilty, may find and state with their verdict the amount of loss resulting from the offense, etc. This view, as to the effect of a general verdict, appears to me to be sustained by the reasoning in the case of Williams v. People, 24 N. Y. 4(»5. It is true that the question was not raised in that case, but it would appear to follow from the argument employed. In Wis- consin, however, the question appears to have been settled in tin; case ot State v. White, 25 Wis. 359, in which it was held thai a o-eneral verdict of guilty is a finding 1 of the truth of all the ma- 47 738 LAW OF EVIDENCE IN CRIMINAL CASES. terial averments in the indictment, including the averment of value when value is material. To the same effect also is the case of Schoonover v. State, 17 Ohio St. 294. In charging a larceny of several articles of the same kind, it is- not necessary to state the number nor to allege the value of each article. It is sufficient to allege a larceny of divers of the articles of an aggregate value. This is a common mode of charging larceny of bank-notes and of coin. Com. v. Hussey, 111 Mass. 432; Com. v. Stebbins, 8 Gray, 492; Com. v. Grimes, 10 Gray, 470, 71 Am. Dec. 666; Com. v. Gallagher, 16 Gray, 240; Com, v. Butts, 124 Mass. 449; Com. v. Collins, 138 Mass. 483. § 456. New York Rule as to Name of Party Defrauded. — Formerly, before the adoption of the code of criminal procedure, it was the inflexible rule that the name of the person in whom property was laid, although matter of description, must be proved according to the indictment. But the rule is now changed by the code of criminal procedure. N. Y. Code Crim. Proc. § 293. The constitutionality of this provision was recognized without question in People v. JPoucher, 1 N. Y. Crim. Rep. 544; and was upheld by a divided court in People v. Johnson, 4 N. Y. Crim. Rep. 591. The constitutionality of similar statutory provisions has been recognized^without question by the highest courts of several of the states. Mulrooney v. State, 26 Ohio St. 326; Com. v. G ' Brien y 2 Brewst. 566; Haywood v. State, 47 Miss. 1. §457. Review of Miscellaneous Authorities. — If property is parted with voluntarily upon contract, the offense is not larceny^ Penal Code, § 528; People v. Morse, 3 K Y. Crim. Rep. 104; Zink v. People, 77 K Y. 114, 33 Am. Rep. 589; People v. Cruger, 102 N. Y. 510, 55 Am. Rep. 830; Moiorey v. Walsh, 8 Cow. 238; Andrews v. Bieterieh, 14 Wend. 31; Boss v. People, 5 Hill, 294; Smith v. People, 53 N. Y. Ill, 13 Am. Rep. 474; Thome v. Turch, 94 N. Y. 90, 46 Am. Rep. 126; People v. Bal-er, 96 K Y. 340; Kelly v. People, 6 Hun, 509; Cowen, Crim. Dig. 320. It is not larceny if the owner intends to part with the property, and deliver the possession absolutely, although he has been induced to part with the goods by fraudulent means. If by trick or artifice the owner of property is induced to part with the custody or naked possession to one who receives the property anirno LARCENY. 739 furandi, the owner still meaning to retain the right of property, the taking will be larceny; but if the owner part with not only the possession, but the right of property also, the offense of the party obtaining them will not be larceny, but that of obtaining goods by false pretenses. Ross v. People, 5 Hill, 394; L&wer v. ( 'om. 15 Serg. & R, 93; 2 Russell, Crimes, 28. In prosecutions for larceny and receiving, several articles may be joined in a count, and the proof of one of them will sustain the indictment. A nolle prosequi maybe entered on a portion of a divisible count, even after verdict. If several articles are embraced in a count for larceny, and one of them is sufficiently described and the others are not, it is not necessary to quash the indictment. In such case, it is proper to amend by striking out the articles defectively specified, or to enter a nolle prosequi as to them. Indeed, to quash an indictment on such ground might effectually defeat justice, as where the statute of limitations would be an answer to a new bill for the larceny of the article which was adequately described in the quashed indictment. A defective description of an article in a divisible count for larceny is analo- gous to a bad count in an indictment. In the latter case a general verdict will be supported, and referred to the good counts unless it appear that evidence was received which was admissible only under the bad counts. Corn. v. Johnson, 133 Pa. 293. Where an indictment for grand larceny charged the act con- stituting the crime thus, that defendant lt unlawfully and feloni- ously did steal, take and carry away" the property described. Held, that the indictment could not be sustained by proof that the defendant obtained possession of the property from the owner upon a sale on credit induced by false and fraudulent representa- tions. People v. Dumar, 106 N. Y. 502. The statute defining larceny is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proofs requisite to a conviction ; and an indictment charging larceny in the com- mon law form, if sustained by evidence, justifies a conviction for larceny committed in any of the ways now known to the law. People v. Enoch, 13 Wend. 17*'>. 27 Am. Dec. l!»7; /'<<>/>/, v. Whitt , 22 Wend. 1 76 ; Fitzg< rrold v. /', oplt , 37 X. V. 413 ; A' n- nedy v. People, 39 N. Y. 245; Cox v. People,^ X. Y. 500; People v. Conroy, !>7 X. V. 62. Where the owner of personal property entrusts it to another, 740 LAW OK EVIDENCE IN CRIMINAL CASES. to procure a loan thereon, and the latter procures the loan as authorized, his omission to account for, or appropriation of the proceeds of the loan will not sustain an indictment against him for larceny of the property. People v. Cruger, 102 N. Y. 510, 55 Am. Rep. 830. Evidence of embezzlement will not support a conviction of larceny. Com. v. Simpson, 9 Met. 13S ; Com. v. King, 9 Cush. 284. In People v. McDonald, 43 N. Y. 61, it is said: "If money or property is delivered by the owner to a person for mere cus- tody, or for some specified purpose, the legal possession remains in the owner, and the criminal conversion of by the custodian is larceny. A familiar illustration of this rule is the case of servants entrusted with the care of property belonging to their masters." In Smith v. People, 53 JS". Y. Ill, 13 Am.' Rep. 474, it was said by Allen, J.: "The rule is, that when the delivery of goods is made for a single and specific purpose, the possession is still sup- posed to reside, not parted with, in the first proprietor." In theft, general or from the person, the taking must be with- out the consent of the owner, or, though lawful (with consent) the possession of the property must be obtained by some false pretext, or with intent to deprive the owner of the value of the property and appropriate it to the nse of the taker, with an actual appropriation. If there be consent to the taking, and this con. sent is not obtained by false pretext, or there is no intent to deprive the owner of the value, accompanying the taking, there can be no theft. Graves v. State, 25 Tex. App. 333. " If a man find goods that have actually been lost, or are rea- sonably supposed by him to have been lost, and appropriates them, with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, it is not larceny. But if he takes, with like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny." Baker v. State, 29 Ohio St. 184. In Com. v. Uprirhard, 3 Gray, 434, G3 Am. Dec. 762, the property had been stolen in the province of Nova Scotia, and thence carried by the thief into Massachusetts. The defendant was convicted of larceny, charged to have been committed in the 'atter state. This conviction was set aside by a unanimous court, LARCENY. 741 although two decisions had been made by the same court confirm- ing convictions, where the property had been stolen in a sister state, and afterward brought by the thief into that commonwealth. Without overruling the older cases, Chief Justice Shaw, in deliv- ering the opinion of the court, distinguished between the two classes of cases. The following cases are in point, that a state, into which stolen goods are carried by a thief from a sister state, has no jurisdiction to convict for the larceny of the goods, and a fortiori when the goods were stolen in a foreign country. In New York: People v. Gardiner, 2 Johns. 477; Peoples. SeJu nek, 2 Johns. 479. The rule was afterwards changed in that state by statute. New Jersey: Stab v. L< Blanch, 31 N. J. L. 82. Pennsylvania: Simmons v. Com. 5 Binn. 617. North Carolina: State v. Brown, 2 N. C. 100, 1 Am. Dec. 548. Tennessee: Simpson v. State, 4 Humph. 456. Indiana : Beall v. State, 15 Ind. 378. Louisiana : State v. Reonnals, 14 La. Ann. 276. There are two cases sustaining convictions for larceny in the states, where the property had been stolen in the British prov- inces : State v. Bartlett, 11 Vt. 650, and State v. Underwood, 49 Me. 181, 77 Am. Dec. 254; Stanley v. State, 21 Ohio St. 166, 15 Am. Kep. 6u4. CHAPTER LIII. EMBEZZLEMENT, ROBBERY AND BURGLARY. § 458. Embezzlement Defined. 459. What must be Established to Warrant Conviction. 460. Evidence of other Fraudulent Acts Admissible. 461. The Term " Robbery" Defined. 462. What Evidence is Competent to Establish. 463. Yieivs of Professor Greenleaf. 464. The Terms "Fear" and "Violence" Considered. 465. Description of Property Stolen not Required. 466. The Terms "Burglary" and "Break" Defined. 467. What the State must Prove. 468. Presumptive Evidence of. 469. What is "Constructive Breaking" 470. Evidence of Former Attempts. 471. Partial Review of Late Decisions. § 458. Embezzlement Defined.' — Embezzlement is distin- guished from larceny properly so called as being committed in respect of property which is not at the time in the actual or legal possession of the owner. 1 Burrill, Law Diet. 415. The fraudulently removing and secreting of personal property, with which the party has been entrusted, for the purpose of ap- plying it to his own use. Bouvier, Law Diet. 522. The chattel, money, or valuable security embezzled by the pris- oner must be such as has not come to the possession of his master; if it has come to his possession, the offense is larceny, and not embezzlement. Roscoe, Crim. Ev. 445. Embezzlement is the fraudulent appropriation of another's property by one who has the lawful custody. It is distinguished from larceny by the fact of lawful custody. It is the peculiar crime of those employed or trusted by others. This is not a common law offense, but is a general statutory offense. Browne, ("rim. L. 48. Larceny cannot be committed of things that are not the subject of property, as of a dead body. Bex v. Duffin, Russ. & R. 360; King v. Lynn, 2 T. R. 733. 742 EMBEZZLEMENT, ROBBERY AND BURGLARY. 743 Funds appropriated under a claim of right are not embezzled, and it may be generally affirmed that only such property as can be the subject of larceny is subject to embezzlement. Ross v. Innis, 35 111. 487. § 459. What must be Established to Warrant Convic- tion. — To warrant the conviction of an agent for the embezzle- ment of his principal's money, four facts must be established beyond a doubt, to wit : First, The agency whereby the defend- ant was charged with the duty of receiving the money; Second, His receipt of his principal's money; Third, That he received it in the course of his employment; and Fourth, That he embezzled, misapplied or converted it to his own use. Eapalje, Larceny & Kindred Offenses, § 3S9, citing Webb v. State, 8 Tex. App. 310. Under these rules it is apparent that to sustain an indictment for embezzlement against the treasurer of a corporation for the alleged conversion of it> moneys, it must be shown that the money came into the possession of the accused or under his control by virtue of his office as treasurer. Bartow v. People, 78 N. Y. 377; United States v. Cruihshank, 92 U. S. 542, 23 L. ed. 588; Bradlaugh v. Reg. L. R. 3 Q. B. Div. 607. § 460. Evidence of other Fraudulent Acts Admissible.— Reg. v. Richardson, 2 Fost. & F. 343, was a charge of embez- zlement against a clerk who made out weekly accounts of his pay- ments. On three occasions within six months he entered the payments correctly, but, in adding them up, made the totals £2 greater than they were, and took credit for the larger amounts. These were 'the cases on which the indictment was founded. Evidence that, on a series of occasions before and afterwards, precisely similar errors had been made and advantage taken of by him, was received to show that the errors in the three instances to which the indictments related were intentional and fraudulent, and not accidental. Com. v. Tucherman, 10 Gray, 173, 200, was a charge. of embezzlement. The court said : "Where the intent of the accused party forms any part of the matter in issue, evi- dence may always he given of other act- not in issue, provided they tend to establish the intent imputed to him in committing the act." Coat. v.Shepard, 1 Allen, 575, 581, was another case of embezzlement. It was held that evidence of another act of embezzlement by the defendant, during the same week, was com- petent on the question of intent. 744 LAW OF EVIDENCE IN CRIMINAL CASES. §461. The Term "Robbery" Defined.— " Kobbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or vio- lence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery. To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery. . . . The degree of force is immaterial." N. Y. Penal Code, §§ 224, 225. See People v. Foley, 9 N. Y. S. R. 24. " The felonious and forcible taking from the person of another, of goods or money to any value, by violence or putting him in fear." 4 Bl. Com. 242. See also Bloomer v. People, 1 Abb. App. Dec. 140. § 462. What Evidence is Competent to Establish.— Evi- dence is competent which shows the snatching a thing from the hands of another, accompanied with violence, or threats creating apprehensions of bodily harm, or resistance however slight, as this constitutes robbery. Evans v. State, 80 Ala. 4. The supreme court of Iowa in a recent case {State v. Calhoun, 72 Iowa, 432) in passing upon the merits of certain instructions given by the trial court to the jury, has established certain propo- sitions relating to the crime of robbery that directly involve positive rules of evidence. The court says : " It is not necesssary, in order to constitute a stealing and carrying away 'in the im- mediate presence of said Nellie Baldwin,' that it should have been done (if done) in her immediate view, or where she could see it done. And if you find from the evidence, beyond a reasonable doubt, that the defendant made a violent assault upon said Nellie, by choking her and causing her to fall upon the floor of one of the rooms or apartments of her house, and then tied her hands and feet for the purpose and with the intention of stealing some money or property in the house; and you further so find that she, through fear of personal violence, told defendant where her money or watch was in an adjoining room or rooms; and you further so find that thereupon defendant passed through a door or doors into such room or rooms, and did there, within hearing of said Nellie Baldwin, take and carry away from said room or EMBEZZLEMENT, ROBBERY AND BURGLARY. 745 rooms the property described in the indictment, or some part thereof; and yon further so find that such property was under her immediate control, and that such taking, if any, was against the will of the said Nellie Baldwin, and was without any right, or claim of right, of defendant in said property, and with the intent to deprive her thereof, — then and in such case there would be a sufficient stealing and taking from the 'immediate presence' of the said Nellie Baldwin within the meaning of the law." Evidence of the mere snatching of anything from the hand of another in the absence of any struggle or resistance by the owner or any force or violence on the part of the thief is insufficient proof of robbery. McCloskey v. People, 5 Park. Crim. Rep. 299; People v. Hall, 6 Park. Crim. Rep. 642; People v. McGinty, 24 Hun, 64. The evidence must disclose the felonious intent, and as in cases of larceny, the taking of the property must be animo furandi. Where a scuffle takes place between the prosecutor and the accused, in the course of which the former was deprived of a ruling measure, his hat, and a quantity of articles out of his pockets, which were afterwards found by the roadside ; but as it turned out that he was tipsy at the time, and the articles might have been lost in the struggle, without any intent of felonious appro- priation on the prisoner's part, he was acquitted. Bruce's Case, Alison, Prin. Crim. Law of Scotland, 35S. Mere trick or contrivance by which possession of the property is obtained, if unaccompanied by violence, will not amount to robbery. Hiiber v. State, 57 lnd. 341. The taking of property from the person of another is robbery, when it appears that although the taking was fully completed without his knowledge, such knowledge was prevented by the use of force or fear. The violence contemplated means more than a simple assault and battery. It must be sufficient to force the person to part with his property not only against his will but in spite of his resistance. McClosJcey v. People, 5 Park. Crim. Rep. 299. Secretly picking a pocket is no robbery. The victim must be under the influence of fear. Norrii Case, 6 City Hall Rec. 86; Mahoney v. People, 5 Thomp. & C. 321>. Upon a trial for robbery in tin; first degree, the taking of prop- erty from the person by force and violence was clearly proved. A strong array of circumstances was proved, pointing to the 746 LAW OF EVIDENCE IN CRIMINAL CASES. prisoner as the person who committed the offense. Held, that the question of the prisoner's guilt was properly submitted to the jury. Woomer v. People, 3 Keyes, 9. A party in possession of a chattel is, to all intents, the legal owner, except as to the rightful owner, and especially as against any wrongdoer or criminal trespasser. Rex v. Deahin, 2 Leach, C. C. 862; People v. Bennett, 37 N. Y. 117, 93 Am. Dec. 551, and cases therein cited; State v. Addington, 1 Bail. L. 310. The age of the person in possession of the goods cannot be material. People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240. The cases abundantly sustain the position, that an averment of ownership in the person having the actual possession and control of the thing stolen at the time of the theft, is all that is required. People v. Bennett, supra, and cases cited. It is held in People v. McDonald, 43 N. Y. 61, that if money or property is delivered by the owner to a person for mere custody or charge, or for some specific purpose, the legal posses- sion remains in the owner, and a criminal conversion of it by the custodian is larceny. § 463. Views of Professor Ureenleaf. — Professor Greenleaf, says (3 Greenl. Ev. § 231): "Evidence that the money or goods were obtained from the owner by putting him in fear, will sup- port the allegation that they were taken by force. And the law, in odium spoliatoris, will presume fear, wherever there appears a just ground for it. The fear may be of injury to the person; or, to the property; or, to the reputation; and the circumstances must be such as to indicate a felonious intention on the part of the prisoner. The fear, also, must be shown to have continued upon the party up to the time when he parted with his goods or money; but it is not necessary to prove any words of menace, if the conduct of the prisoner were sufficient without them; as, if he begged alms with a drawn sword; or, by similar intimidation, took another's goods under color of a purchase, for half their value, or the like. It is only necessary to prove that the fact was attended with those circumstances of violence or terror, which, in common experience, are likely to induce a man unwilling to part with his mm iev for the safety of his person, property, or reputa- tion." The distinguished author cites in support of the propo- .- i t i - > 1 1 s of his text the following authorities : Clary v. State, 33 Ark. 561; Bill v. State, 6 Tex. App. 113; Shinn v. State, 64 EMBEZZLEMENT, ROBBERY AND BURGLARY. 747 Tnd. 13, 31 Am. Rep. 110; StaU v. Howerton, 58 Mo. 581; Foster, Grim. L. 128, 129; 2 East, P. C. 711, 712. § 464. The Terms " Fear " and " Violence" Considered.— It remains further to be considered of what nature this fear may be. This is an inquiry the more difficult, because it is nowhere defined in any of the acknowledged treatises upon this subject. Lord Hale proposes to consider what shall be said to a putting in fear; but he leaves this part of the question untouched. 1 Hale, P. C. 534. Lords Coke and Hawkins do the same. 3 Coke, Inst. 6S; 2 Hawk. P. C. chap. 34. Mr. Justice Foster seems to lay the greatest stress upon the necessity of the property's being taken against the will of the party, and he lays the circumstance •of fear out of the question; or that, at any rate, when the fact is attended with circumstances of violence or terror, the law in odium sjpoliatoris will presume fear, if it be necessary, where there appears to be so just a ground for it. Foster, Crim. L. 123, 128. Mr. Justice Blackstone leans to the same opinion. 4 Bl. •Com. 242. But neither of them afford any precise idea of the nature of the fear or apprehension supposed to exist. The amount and degree of violence which the accused must ex- ert to bring him within the statute defining robbery, are not de- clared, and they manifestly could not be. The gravamen of the crime consists in taking "the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person." In other words the violence to the person, or the fear of immediate injury to the person, which, against the owner's will, is sufficient to take his property, will, if the taking be felonious, render the taker amenable to the statute. It is nor the extent and degree of force which make the crime, but the suc- cess thereof. In short, the force which is sufficient to take the property against the owner's will, is all that the statutes contem- plate; the distinction between robbery and larceny consists in this, in the latter, the act " is accomplished secretly, or by sur- prise or fraud, while in the former the felonious taking must be accompanied by circumstances of violence, threat- or terror to the person despoiled." 2 Fast, P. C. 559. To authorize a conviction of theft of property recently stolen from the fact that the stolen property was in defendant's posses- sion, such possession must be recent and personal, and there must 748 LAW OF EVIDENCE IN CRIMINAL CASES. be a conscious assertion of claim to the property; and a reasonable doubt thereof requires an acquittal. Clark v. State, 30 Tex. App. 402. § 465. Description of Property Stolen not Required. — "It would be unreasonable to expect one who is robbed of money or its representative to give an accurate description of it, and it would render it almost impossible to convict a thief or a robber if courts should undertake to require the prosecutor, in all cases, to give a particular description of the money or note feloniously taken. The failure to give an exact description can never en- danger the liberty of an innocent man, but the enforcement of such a rule as that for which counsel contend would furnish the guilty with ready and easy means of escape." -Riggs v. State, 104 ind. 261. § 406. The Terms " Burglary " and " Break " Defined.— The breaking and entering the house of another in the night- time, with intent to commit a felony therein whether the fel- ony be actually committed or not. State v. Wilson, 1 N. J. L. 441, 1 Am. Dec. 216; Com. v. Newell, 7 Mass. 247; 3 Coke, Inst. 63; 1 Hale, P. C. 540; 1 Hawk. P. C. chap. 38, § 1; 4 Bl. Com. 224; 2 East, P. C. chap. 15, p. 484, § 1; 2 Russell, Crimes, 2; Ros- coe, Crim. Ev. 252. The circumstances to be considered are, 1. In what place the offense can be committed; 2. At what time; 3. By what means; 4. With what intention. Bouvier, Law Diet. 196. The offense must be committed in the night, for in the day time there can be no burglary. 4 Bl. Com. 224. And the intent must be felonious. 2 Russell, Crimes, 33. Any, the least, entry, with the whole or any part of the body, hand, or foot, or with any instrument or weapon, introduced for the purpose of committing a felony, will be sufficient to constitute the offense. 3 Coke, Inst. 64; 4 Bl. Com. 227; Bac. Abr. title Burglary, B; Comyn, Dig. Justices, p. 4. "The word "break," means and includes, "1. Breaking or violently detaching any part, internal or exter- nal of a building; or, u 2. Opening, for the purpose of entering therein, by any means whatever, any outer door of a building, or of any apartment or set of apartments therein separately used or occupied, or any window, shutter, scuttle or other thing used for covering or clos- EMBEZZLEMENT, ROBBERY AND BURGLARY. 749 ing an opening thereto or therein, or which gives passage from one part thereof to another; or, "3. Obtaining an entrance into such building or apartment, by any threat or artifice used for that purpose, or by collusion with any person therein; or, "4. Entering such a building or apartment by or through any pipe, chimney, or other opening, or by excavating, digging, or breaking through or under the building, or the walls or founda- tion thereof." N. Y. Penal Code, § 499. "It seems agreed, that such a breaking as is implied by law in every unlawful entry on the possession of another, whether it be open or be inclosed, and will maintain a common indictment, or action of trespass quare clausum f regit, will not satisfy the words felonice et burglariter, except in some special cases, in which it is accompanied with such circumstances as make it as heinous as an actual breaking. And from hence it follows, that if one enters into a house by a door which he finds open, or through a hole which was made there before, and steals goods, etc., or draws any- thing out of a house through a door or window which was open before, or enters into the house through a door open in the day time, and lies there till night, and then robs and goes away with- out breaking any part of the house, he is not guilty of burglary." 1 Hawk. P.' C. chap. 38, §§ 4, 5. § 467. What the State must Prove. — "On an indictment for burglary it is essential to prove, 1st, a felonious breaking and en- tering; 2d, of the dwelling4iouse; 3d, in the night-time; 4th, with intent to commit a felony. "In the first place, it is a question of fact for the jury, whether the prisoner has been guilty of any act of breaking; but whether that act amounts to a burglarious breaking, is a pure question of law. There must be evidence of an actual or constructive break- ing, for if the entry was obtained through an open door or win- dow, it is no burglary. But the lifting of a latch; taking out a pane of glass; lifting up of folding doors; breaking of a wall or gates which protect the house; the descent down a chimney; the turning of a key where the door is locked on the inside, const i tutes a sufficient breaking. "Where the glass of the window was broken, but the shutter within was not broken, it was doubted whether the breaking was sufficient, and no judgment was given. 750 LAW OF EVIDENCE IN CRIMINAL CASES. "Where an entry lias been gained without any breaking, a sub- sequent breaking will constitute the offense; as where the party- lifts the latch of a chamber door, or a servant raises the latch of his master's door with intent to murder or rob his master." 2 Stark. Ev. 275. § 468. Presumptive Evidence of. — Where a burglary is con- nected with a larceny, mere possession of the stolen goods, with- out any other evidence of guilt, is not to be regarded as prima facie or presumptive evidence of the burglary. But where goods have been feloniously taken by means of a burglary, and they are immediately or soon thereafter found in the actual and exclusive possession of a person who gives a false account, or refuses to give any account of the manner in which the goods came into his possession, proof of such possession and guilty conduct is presumptive evidence, not only that he stole the goods, but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct, besides the bare possession of the stolen property before the presumption of burglary is superadded to that of the larceny. Davis v. People, 1 Park. Crim. Rep. 447. § 469. What is "Constructive Breaking." — It has fre- quently been held in this country, that the evidence must show beyond a reasonable doubt, that the accused obtained admission to a dwelling-house at night, with the intent to commit a felony, by means of artifice or fraud or upon a pretense of business or social intercourse, is a constructive breaking, and will sustain an indictment charging a burglary by breaking' and entering. John- ston v. Com. 85 Pa. 54, 27 Am. Rep. 622; Holland v. Com. 82 Pa. 306, 22 Am. Rep. 758; State v. Wilson, 1 K J. L. 439, 1 Am. Dec. 216; State v. McCall, 4 Ala. 643, 39 Am. Dec. 314; Bishop, Statutory Crimes, § 312, and cases there cited. The same was held in Ohio under a statute against " forcible " breaking and entering. Ducher v. State, 18 Ohio, 308. But it is claimed that in the state of Wisconsin, the common law doctrine of construct- ive breaking has no application to a case of this kind, and in fact is superseded by statute, except in so far as it is re-affirmed. Thus: "Any unlawful entry of a dwelling or other building with intent to commit a felony, shall be deemed a breaking and entering of such dwelling-house or other building, within the EMBEZZLEMENT, ROBBERY AND BURGLARY. 751 meaning of the last four sections." Rev. Stat., § 4411. This section merely establishes a rule of evidence whereby the scope of constructive breaking is enlarged so as to take in " any unlaw- ful entry of a dwelling-house or other building with intent to commit a felony." See State v. Kane, 63 "Wis. 262. It in no way narrows the scope of constructive breaking, as understood at common law, but merely enlarges it in the particulars named. In all other respects such constructive breaking signifies the same as at common law. It necessarily follows that as the word " break," used in section 4410, had obtained a fixed and definite meaning at common law when applied to a dwelling-house proper or other buildings within the curtilage, the legislature must be presumed to have used it in the same sense when therein applied to other statutory breakings. Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Ducher v. State, 18 Ohio, 308; Bishop, Statutory Crimes, §§ 7, SN . That is to say they must be deemed to have used the word as understood at common law in relation to the same or a like subject-matter. Nicholls v. State, 68 Wis. 416, 60 Am. Rep. 870. § 470. Evidence of Former Attempts. — On a trial for burg- lary, it is no valid objection to evidence, tending to show the burglarious intent of defendant's act, that it proves another and distinct offense, but the intent with which he entered may be shown by proof of a felony committed in an adjoining store. Osborne v. People, 2 Park. Grim. Rep. 583; Phillips v. People, 57 Barb. 363. In Mason v. State, 42 Ala. 532, evidence was held admissible to show that the prisoners had committed other burglaries than that charged. The court says: ""The evidence tended to show that there was a privity and community of design between the prisoners to commit offenses of the character charged against them." "Privity and community of design " is a larger phrase than "intent," but it means the same thing. To show their intent, written articles of agreement signed by the defend- ants, setting forth their intent of going into the burglary busi- ness, would be competent. And it would not be necessary that their agreement be reduced to writing. Their oral statements would be equally competent, as in the case of the dealer in coun- terfeit money, and the intent may be proved by other burglaries, as well as by written or oral statements; by arts, as well as by words written or spoken, by the executed, as well as by the i 752 LAW OF EVIDENCE IN CRIMINAL CASES. utory agreement. And in the case of a single defendant, his in- tent may be shown by the same kind of evidence that would be admissible against several joint defendants, as in the case of the dealer in counterfeit money. Evidence that a man has often passed counterfeit money has a legal tendency to show that he in rends to pass more of the same kind of money found in his pos- session. The number of his previous attempts to pass such money affects the weight, not the competency, of this kind of evidence. So, when A has broken and entered B's house, and the question is whether he broke and entered it with a burglarious intent, evi- dence of his having repeatedly broken and entered other houses for the purpose of stealing, tends to show the intent with which he broke and entered B's house. § 471. Partial Review of Late Decisions. — In People v. Ah Sing, 59 Cal. 400, the opinion of the court is as follows • '•' The defendant was proceeded against by information, and con- victed of the crime of burglary, and on the trial the court below instructed the jury that the possession of stolen property, supported by other circumstances and other evidence tending to show guilt, is a strong circumstance in the case. This was error, whether the possession was strong evidence, or only slight evi- dence, tending to show guilt, was a matter for the jury to pass upon, and not a question for the court to determine." In People v. Titherington, 59 Cal. 59S, wherein the appellant was convicted of burglary, a similar instruction was held erroneous, the court below having said that " such possession, if proven to the satis- faction of the jury, and unexplained by the defendant, supported by other circumstances tending to show guilt, i.- a strong circum- stance tending to show guilt." In People v. Cline, 74 Cal. 575, it appeared that the defendant was convicted of grand larceny, and the following instruction was given to the jury: "The pos- session of stolen property, supporting other evidence tending to show guilt, is a strong circumstance tending to show guilt." The court affirmed the case of People v. Ah Sing, supra, and Chief Justice Searls, in the opinion, says: "In other words, it is not a tion of law, upon which the court should instruct the jury, but one of fact which is wholly within the province of the latter. In adducing the ultimate fact of guilt or innocence, they are the sole judges of the weight to be given to the probative fact of possession of property recently stolen, and of all the circumstances surrounding and stamping the character of such possession." EMBEZZLEMENT, ROBBERY AND BURGLARY. 753 In Clary v. State, 33 Ark. 566, this court said : " Perhaps, on a trial for robbery, if the state fails to prove that the goods were taken from the person or party charged to, have been injured, by putting him in fear, or by intimidation or violence, and proves that the goods were taken from his person furtively, the accused might be accused of larceny." In State v. Emerson, 48 Iowa, 174, substantially the same ques- tion arose, and the court said : " When a reasonable doubts exists as to the character of the recent possession, whether it be inno- cent or guilty, a reasonable doubt exists as to the defendant's guilt. If such doubt exists he cannot be convicted. Xow, such a doubt may arise in the minds of the jury upon less than a pre- ponderance of the evidence. It was therefore erroneous to direct the jury that they could find the defendant guilty, unless defend- ant, by a preponderance of the testimony, reasonably satisfied them that his possession of the cattle was innocent." See also State v. Henry, 48 Iowa, 403; State v. Merrick, 19 Me. 398; Hall v. State, 8 Ind. 439; Heed v. State, 25 Wis. 421. A family vault in a cemetery is a " building or erection or en- closure," as defined in the penal code, and a person who breaks and enters the same with intent to commit a crime therein, is guilty of burglary in the third degree." People v. Richards, 5 X. Y. Crim. Rep. 355. 48 CHAPTER LIV. MURDER AND MANSLAUGHTER. § 472. Distinction between Murder and Manslaughter. 473. Degrees of the Offense. 474. Wlien Justifiable. 475. Effect and Definition of Provocation. 476. Texas Code Provisions on the Subject of Homicide. 477. When Causing Death does not Amount to Homicide. 478. A Celebrated Case Examined. 479. Intent to Kill is the Essence of the Crime. 480. How Death mag be Accomplished. 481. Burden of Proving Mitigating Circumstances. 482. Evidence of Character in Cases of. 483. Evidence of Death bg Poisoning. 484. Evidence of Blood Stains in Cases of Homicide. 485. Evidence should Convince Jury beyond Reasonable Doubt. 48G. Note on Expert Medical Evidence. § 472. Distinction between Murder and Manslaughter. — Voluntary manslaughter often so nearly approaches murder, it is necessary to distinguish it clearly. This difference is this : Man- slaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences or cruelty, being sometimes a willful act, as the term "voluntarily" denotes. It is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. There- fore, to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause or provocation, and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting, if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and rea- son has resumed its sway, the killing will be murder. " Murder ... is the voluntary killing of any person . . . of malice pretense or aforethought, either express or implied, by 754 MURDER AND MANSLAUGHTER. 755 law ; the sense of which word malice is not only confined to a par- ticular ill will to the deceased, "but is intended to denote, as Mr. Justice Foster expresses it, an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indi- cations of a heart regardless of social duty and fatally bent upon mischief. And therefore malice is implied from any deliberate, cruel act against another, however sudden." § 2. " Manslaughter is principally distinguishable from murder in this: that though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter; and, the act being im- puted to the infirmity of human nature, the correction ordained for it is proportionally lenient." § 4. " The implication of malice arises in every instance of homi- cide amounting, in point of law, to murder; and in every charge of murder, the fact of killing being first proved, all the circum- stances of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence pro- duced against him." £ 12. " Whenever death ensues from sudden transport of passion or heat of blood, if upon a reasonable provocation and without malice, or if upon sudden combat, it will be manslaughter; if without such provocation, or the blood has had reasonable time or opportunity to cool, or there be evidence of express malice, it will be murder." § 19. ""Words of reproach, how grievous soever, are not provocation sufficient to free the party killing from the guilt of murder; nor are contemptuous or insulting actions or gestures, without an assault upon the person; nor is any trespass against lands or goods. This rule governs every case, where the party killing upon such provocation made use of a deadly weapon, or otherwise manifested an intention to kill, or to do some great bodily harm. But if he had given the other a box on the ear, or had struck him with a stick, or other weapon not likely to kill, and had unluckily and against his intention killed him, it had been but man- slaughter." 1 East, P. C. chap. 5, §§ 2, 4, L2, L9, 20. No person can be convicted of murder or manslaughter unless the death of the person alleged to have keen killed and the fact 756 LAW OF EVIDENCE IN CRIMIMAL OASES. of killing by the defendant, as alleged, are each established as in- dependent facts; the former by direct proof and the latter beyond a reasonable doubt. § 473. Degrees of the Offense. — "The killing of a human be- ing, unless it is excusable or justifiable, is murder in the first degree when committed, either, 1. From a deliberate and premeditated design to effect the death of the person killed, or of another, or 2. By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a pre- meditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise; or, 3. When perpetrated in committing the crime of arson in the first degree. "Such killing of a human being is murder in the second degree, when committed with a design to affect the death of the person killed, or of another, but without deliberation and premeditation. "Such homicide is manslaughter in the first degree, when com- mitted without a design to effect death, either 1. By a person engaged in committing, or attempting to com- mit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or 2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon. "Such homicide is manslaughter in the second degree, when committed without a design to effect death, either 1. By a person committing or attempting to commit a trespass, or other invasion of a private right, either of a person killed, or of another, not amounting to a crime; or, 2. In the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual ; or 3. By any act, procurement or culpable negligence of any per- son, which, according to the provisions of this chapter, does not con- stitute the crime of murder in the first or second degree, nor man- slaughter in the first degree. See N. Y. Penal Code, §§ 183, 184, 180, 193. In jurisdictions where murder is divided into two degrees, mur- der in the first degree requiring deliberation and premeditation, MURDER AND MANSLAUGHTER. 757 in other words, actual malice, it has been frequently held that evidence of mental excitement resulting from drunkenness and, perhaps, also of other abnormal conditions of the mind not amounting to insanity, may reduce an unprovoked homicide to murder in the second degree; but it has always been held that such evidence cannot of itself reduce the crime to manslaughter. On this point see Jones v. Com. 75 Pa. 403; Mclntyre v. People, 38 111. 520; Rafferty v. People, 66 111. 118, 18 Am. Eep. 601; People v. Rogers, 18 K Y. 27, 72 Am. Dec. 481; Com. v. Hawk- ins, 3 Gray, 463; People v. Belenela, 21 Cal. 544; Plrtle v. State, 9 Humph. 663; Halle v. State, 11 Humph. 155; Tidwellv. State, 70 Ala. 33; Willis v. Com. 32 Gratt. 929. "All peculiar traits may be put in evidence to lower the grade of the offense, although they do not amount to insanity. " 1 Whart. Medical Jurisprudence. "Partial insanity may be evidence to disprove the presence of the kind of malice required by the law to constitute the particu- lar crime of which the prisoner is accused." Stephen, Dig. 1863, §92. In Pennsylvania, the legislature, considering that there is a manifest difference in the degree of guilt, where a deliberate in- tention to kill exists, and where none appears, distinguishes mur- der into two grades, murder of the first and murder of the sec- ond degree; and, provided that the jury before whom any person indicted for murder shall be tried, shall, if they lind him guilty thereof, ascertain in their verdict whether it be murder of the first or murder of the second degree. § 474. When Justifiable. — Homicide is declared to be justifi- able, excusable or felonious. 4 Bl. Com. 476. Every homicide which is neither justifiable nor excusable must of necessity be "felonious." Every felonious homicide must be and is either murder or manslaughter. 4 Bl. Com. 190. Murder and manslaughter are each and both felonies. 2 Bishop, Grim. L. 617. Therefore every assault feloniously committed with intent to "feloniously kill," must of necessity be and is a criminal assault, with intent to commit a felony, either murder or manslaughter. An assault with intent to commit either of these crimes is an assault with intent to commit a felony, and is indictable. 2 Bishop, Grim. L. 029. 758 LAW OF EVIDENCE IN CRIMINAL CASES. All statutes providing for the punishment of assaults with in- tent to commit crime contemplate complete commission of the one offense, the assault, the misdemeanor, with the intent to commit the other complete crime, which would be a felony. Wilson v. People, 24 Mich. 410. Where a party by one witness has introduced certain testimony, he is not necessarily bound thereby, but that he must give contra- dictory testimony by another witness or witnesses, and may there- after in argument claim the benefit of the more favorable portion of such contradictory testimony. Bullard v. Pear.mil, 53 N. Y. 230; Howard y. State, 32 Ind. 478; Melluish v. Collier, 15 Q. B. 878; 1 Stark. Ev. 210; 2 Phil. Ev. 985; 1 Greenl. Ev. § 414. Homicide is also justifiable when committed, either — 1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, or to any such person, that there is imminent danger of such de- sign being accomplished; or, 2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is. The statute above quoted states the general doctrine of the cases. Kingen v. State, 45 Ind. 518; Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52; People v. Anderson, 41 Cal. 65; People v. Morine, 61 Cal. 367; State v. Newcomb, 1 Houst. Grim. Rep. 66; State v. Hottis, 1 Houst. Grim. Rep. 24; StaU v. Vines, 1 Houst. Crim. Rep. 424; Davison v. People, 90 111. 221; State v. Bohan, L9 Kan. 28, 55; State v. Rose, 30 Ivan. 501; Kennedy v. Com. 14 Bush, 340; Farris v. Com. 14 Bush, 362; Minton v. Com. 79 Ky. 461; State v. Garic, 35 La. Ann. 97": State v. Mattht ws, 78KO. 523; Draper v. State, 4 Baxt. 246; Holt v. State, 9 Tex. App. 571; StaU v. Abbott, 8 W. Ya. 741; Stak v. Cain, 20 W. Va. 679. § 475. Effect and Definition of Provocation. — "Homicide, which would otherwise be murder, is not murder, but manslaugh- ter, if the act by which death is caused is done in the heat of pas- sion, caused by provocation, as hereinafter defined, unless the provocation was sought or voluntarily provoked by the offender as an excuse for killing; or doing bodilv harm. The following; acts MURDER AND MANSLAUGHTER. 759 may . . . amount to provocation : (a) An assault and battery of such a nature as to inflict actual bodily harm, or great insult, is a provocation to the person assaulted, (b) If two persons quarrel and fight upon equal terms and upon the spot, whether with deadly weapons or otherwise, each gives provocation to the other whichever is right in the quarrel, and whichever strikes the first blow, (c) An unlawful imprisonment is a provocation to the person imprisoned, but not, to the by-standers, though an unlaw- ful imprisonment may amount to such a breach of the peace as to entitle a by-stander to prevent it by the use of force sufficient for that purpose. An arrest by officers of justice, whose character as such is known, but who are acting under a warrant so irregular as to make the arrest illegal, is provocation to the person illegally arrested, but not to by-standers. (d) The sight of the act of adultery committed with his wife is provocation to the husband of the adulteress on the part of both the adulterer and of the adulteress, (e) The sight of the act of sodomy committed upon a man's son is provocation to the father on the part of the person committing the offense, (f) Neither words, nor gestures, nor injuries to property, nor breaches of contract amount to provoca- tion, except perhaps words expressing an intention to inflict actual bodily injury, accompanied by some act which shows that such injury is intended; but words used at the time of an assault — slight in itself — may be taken into account in estimating the de- gree of provocation given by a blow, (g) The employment of lawful force against the person of another is not a provocation to the person against whom it is employed. "Provocation does not extenuate the guilt of homicide unless the person provoked is, at the time when he does the act, deprived of the power of self control by the provocation which he has re- ceived; and, in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tend- ing to show the state of his mind. " Provocation to a person by an actual assault, or by a mutual combat, or by a false imprisonment, is in some cases provocation to those who are with that person at the time, and to his friends who, in the case of a mutual combat, take part in the tight lor 760 LAW OF EVIDENCE IN CRIMINAL CASES. his defense. But it is uncertain how far this principle extends." Stephen, Dig. art. 224, 225, 226. § 476. Texas Code Provisions on the Subject of Homicide. — "Homicide is permitted in the necessary defense of person or property under the circumstances and subject to the rules herein set forth." Texas Penal Code, art. 567; Paschal, Dig. art. 2225. "Homicide is permitted by law, and subject to no punishment, when inflicted for the purpose of preventing the offenses of mur- der, rape, robbery, maiming, arson, burglary, and theft at night, whether the homicide be permitted by the person about to be injured, or by some person in his behalf, when the killing takes place under the following circumstances: "1. It must reasonably appear by the acts, or by the words coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named. 2. The killing must take place while the person killed was in the act of committing the offense, or after some act done by him, showing evidently an intent to commit such offense. 3. It must take place before the offense committed by the party killed is actually completed, except that, in case of rape, the ravisher may be killed at any time before he has escaped from the presence of his victim, and except also in the cases hereinafter enumerated. 4. Where the killing takes place to prevent the murder of some other person, it shall not be deemed that the mur- der is complete so long as the offender is still inflicting violence, though the mortal wound may have been given. 5. If homicide takes place in preventing a robbery, it shall be justifiable, if done while the robber is in the presence of the person robbed, or is Hying with the money or other article taken by him. 6. In case of maiming, the homicide may take place at any time while the the offender is mistreating with violence the person injured, though he may have completed the offense of maiming. 7. In case of arson, the homicide may be inflicted while the offender is in or at the building or other property burnt, or flying from the place before the destruction of the same. 8. In case of burglary and theft by night, the homicide is justifiable at any time while the offender is in the building, or at the plaee where the theft is committed, or is within gunshot from such place or building." Texas Penal Code, art. 568; Paschal, Dig. art. 2226. "When the homicide takes place to prevent murder or maiming,. MURDER AXD MANSLAUGHTER. 761 if the weapons or means used by the party attempting or commit- ting sucli murder or maiming, are such as would have been cal- culated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." Texas Penal Code, art. 569; Paschal, Dig. art. 2227. "Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides tin isc mentioned in the preceding article, and in such cases, all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack besides those mentioned in the preceding article, and any person interfer- ing in such case, in behalf of the person about to be injured, is not justifiable in killing the aggressor, unless the life or person of the injured party is in peril, by reason of such attack upon his property." Texas Penal Code, art. 570; Paschal, Pig. art. 2228. "The party whose person or property is so unlawfully attacked, is not bound to retreat in order to avoid the necessity of killing his assailant." Texas Penal Code, art. 571; Paschal, Dig. art. 222!». "The attack upon the person of an individual, in order to jus- tify homicide, must be such as produces a reasonable expectation or fear of death, or some serious bodily injury." Texas Penal Code. art. 572: Paschal. Dig. art. 22o'». "When under article .">7" a homicide is committed in the pro- tection of property, it must be done under the following circum- stances: •'1. The possession must be of corporeal property, and not of a mere right; and the possession must be actual, and not merely constructive. 2. The possession must be legal, though the right of property may not be in the possessor. 3. If the possession lie once lost it is not lawful to regain it by such means as result in homicide. 4. Every other effort in his power must be made by the possessor, to repel the aggression, before he will be justified in killing." Texas Penal Code. art. 573; Paschal, Dig. art. 2231. "Simple assault and battery or mere trespass upon property, will not justify homicide, nor will any offense, not accompanied by force, such as theft, except in the night, time, and from some house or place, such a.- defined in article- 680 and 681." Texas Penal Code, art, 574; Paschal. Dig. art. 2232. 762 LAW OF EVIDENCE IN CRIMINAL CASES. The statutory provisions above expressed are in effect generally adopted in this country. The phraseology of the Texas statutes is more didactic and concise than many others and has for this reason been selected for illustration. § 477. When Causing Death does not Amount to Homi- cide. — Under the English rule, "a person is not deemed to have committed homicide, although his conduct may have caused death, in the following cases: (a) When the death takes place more than a year and a day after the injury is inflicted is to be counted as the first day. (b) [It is said] "When the death is caused without any definite bodily injury to the person killed, but this does not extend to the case of a person whose death is caused, not by any one bodily injury, but by repeating acts affecting the body which collectively cause death, though no one of them by itself would have caused death, (c) [It seems] When death is caused by false testimony given in a court of justice." Stephen, Dig. art. 221. § 47S. A Celebrated Case Examined. — The case of Com. v. «Si Ifridge (Horrigan & T. Cases on Self-Defense, 1) decided by the supreme judicial court of Massachusetts in 1806, is one of the celebrated cases in American criminal law. It established certain rules of action and principles of evidence, that many years after inspired distinctive legislation in the criminal codes of New York, Kansas, Missouri, Minnesota, Wisconsin and other states, that must ever be regarded as both wise and salutary. Mr. Wharton, whose primacy upon matters pertaining to criminal law, we all cordially recognize — has fallen into an unaccountable error in his extended criticism of this case. ( Vide 1 Whart. Grim. Law, (5th ed.) note appended to § 1026.) Aside from the dogmatic assertion of his language, which is a disfigurement to any text, and especially unfortunate to the semi-judicial treatment of a serious topic concerning the life of fellow citizens; and his offenses in this direction become positively inexplicable, when he embarks in a very decided attempt to impugn the character of one of the most stainless jurists, who has ever graced the bench in this or any other land. Returning to the case of Com. v. St [frie of such nature, that its tendency, under the circumstances- and as illustrated by his character, is calculated to create a rea- sonable apprehension of great bodily harm. The purpose of such evidence is to show the honesty of the accused's belief of immi- nent peril. Franklin v. State, 29 Ala. 14; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Stort >j v. State, 71 Ala. 329; DeArman v. State, 71 Ala. 357. Where the deceased, at the time the fatal blow was struck, was making no demonstration of violence against the defendant, spoke no words, and did no act, which could tend, even remotely, to produce in the mind of the defendant any ap- prehension of harm. His character for turbulence and violence is not admissible." Clopton, J., in Lang v. State, 84 Ala. 1. See Keener v. State, 18 Ga. 191, 63 Am. Dec. 269; Wiggins v. Utah,. 93 U. S. 165, 23 L. ed. 911. § 483. Evidence of Death by Poisoning. — "It would be most unreasonable and lead to the grossest injustice, and, in some circumstances, to impunity of the worst of crimes to require, as an imperative rule of law, that the crime of poisoning shall be proved by any special and exclusive medium of proof, when that kind of proof is unattainable, and especially if it has been rendered so by the act of the offender himself. No invariable and universal rule, therefore, can be laid down, and every case must depend upon its own particular circumstances; and, as in all other cases, the corpus dt licti must be proved by the best evidence which is capable of being adduced." Wills. Circ. Ev. 233. In cases of this kind the purchase or possession of poison under false pretenses and a knowledge of its properties are deemed among the most, if not the most material circumstances. 1 Archb. Crim. Pr. & PI. (8th ed.) 856; 3 Whart. Am. Grim. L. (7th ed.) § 3491a. Motive, however strong, does not prove the crime. Its office is to aid in the application of other circumstances that point toward guilt. It is said to be a minor or an auxiliary fact, from which, when established in connection with other necessary facts, the main or primary fact of guilt may be inferred. Pierson v. Peo- MURDER AND MANSLAUGHTER. 767 pie, 18 Hun, 253. "When the case depends upon circumstantial evidence, and the circumstances point to any particular person as the criminal, the case against him is much fortified by proof that he had a motive to commit the crime; and where the motive ap- pears, the probabilities created by the other evidence are much strengthened. Earle, J., in Pierscn v. People^ 79 N. Y. 436, 35 Am. Rep. 524. § 484. Evidence of Blood Stains in Cases of Homicide.— Stains of blood found upon the person or clothing of the party accused, have always been recognized among the ordinary indicia of homicide. The practice of identifying them by circumstantial evidence, and by the inspection of witnesses and jurors, has the sanction of immemorial usage in all criminal tribunals. Proof of the character and appearance of the stains by those who saw them has always been regarded by the courts as primary and legitimate evidence. It is in its nature original proof, and in no sense sec- ondary in its character. The degree of force to which it is enti- tled may depend upon a variety of circumstances, to be consid- ered and weighed by the jury in each particular case; but its competency is too well settled to be questioned in a court of law. Science has added new sources of primary evidence, but it has not displaced those which previously existed. The testimony of the chemist who has analyzed blood, and that of the observer who has merely recognized it, belong to the same legal grade of evi- dence; and though the one may be entitled to much greater weight than the other with the jury, the exclusion of either would be illegal. Each party is at liberty to offer such proof as he can, and if it be admissible in its nature and relevant to the issue, it can- not be rejected on the ground that, by greater diligence, it might have been made more satisfactory and conclusive. Either party has the right to resort to microscopic or chemical tests, but neither is bound to do it, and neither can complain of the other for the omission. Porter, J., in People v. Gonzales, 35 X. Y. 61. Dr. Wharton with rare felicity touches the very pith and mar- row of this entire subject in section 777 of his Criminal Evidence. "Scarcely a case arises where this issue is material in which ex- perts have not appeared ready to identify dried blood as human, and by this process to supply a link on which a conviction of a capital offense may be made to rest. It is perhaps a minor matter that in this way enormous expenses are heaped not only on the 768 LAW OF EVIDENCE IN CRIMINAL CASES. state, but on the accused. Experts are brought from a distance by the state at great cost, protracted experiments are made by them afterwards to be detailed to the jury; and testimony is ad- duced which the defendant must meet at the peril of his life. Controvert it he readily may, if he can procure the means, for the great weight of authority, as will presently be seen, is that such identification cannot be accurately determined. But to procure this testimony may be impossible for him, unless the prosecution assume the expense, which it is often either unwilling or unable to do. This amounts to a perversion of justice; but this is not the chief objection. Supposing experts are obtained so as to fully exhibit to the jury both sides of this vexed question, and the case goes to the jury on their testimony, what then? Is there not danger that the jury may regard the question as one determined, not by ascertainable physical laws, but by their own discretion or on the authority of particular experts % It would seem, in view of these dangers, and in view of the more recent explorations of scientists who have viewed the question, not as advocates retained by a particular party, but as dispassionate investigators, that the time has now arrived in which it is the duty of courts to advise juries, in all cases in which it is proposed to rest a conviction on the identification of certain blood-stains as human, that as matter of fact no such identification can be made out beyond reasonable doubt. That stains look like blood may be proved by expert and non-expert; that they are dried human blood can be satisfactorily proved by no one." In a highly instructive discussion of this subject by Mr. Rogers in his well known work on Expert Testimony, p. 141, I find the following : " When blood is dried on clothing, and it is necessary to extract the corpuscles by means of a liquid of a different nature from the serum, we cannot rely on slight fractional differences, since we cannot be sure that the corpuscles, after having once dried, will ever acquire, in a foreign liquid, the exact size which they had in serum. Medical evidence must, therefore, be based, in such cases, on mere speculation. . . . "There are no certain methods of distinguishing microscopically, or chemically, the blood of a human being from that of an animal, when it has once been dried on an article of clothing." Citing Satterthwaite's Manual of Histology, p. 30. MURDER AND MANSLAUGHTER. 769 Common observers, having special opportunity for observation, may testify to their opinions as conclusions of fact, although they are not experts, if the subject-matter to which the testimony re- lates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time, and the facts, upon which the witness is called to express his opinion, are such as men in general are capable of comprehending and understanding. Whether a witness, not an expert, is qualified to express his opin- ion as a conclusion of fact, is to be decided by the judge presid- ing at the trial, and his finding is not open to revision in this court, unless, upon a report of all the evidence, it is shown to be without foundation, or is based on some erroneous application of legal principle.-. Com. v. Sturtivant, 117 Mass. Vl'l, 19 Am. Eep, 401. On the trial of an indictment for murder, a witness familiar with blood, who had examined, with a lens, a blood-stain on a coat, when it was fresh, and who testified to its appearance at the time he examined it, and that it was not in the same condition at the trial, was permitted to testify that its appearance when he examined it indicated the direction from which it came, and that it came from below upward, although he had never experimented with blood or other fluid in this respect. Com. v. Sturtivant, supra. The views of the Wisconsin supreme court on one branch of its subject must be regarded as substantially embodying the jurid- ical sentiment of this country. In a recent case decided in that court (Knoll v. State, 55 Wis. 249, 42 Am. Eep. 704) a physician had testified as an expert in regard to an examination made by him with a microscope of certain blood stains found upon pieces of cloth and wood. He gave it as his opinion, founded upon such examination, that some of the stains were caused by human blood corpuscles. For the purpose of discrediting the witness it was proposed on the part of the defense to read opinions stare! in certain medical works on this subject. The court would not permit this to be done, holding, in effect, that as Dr. Piper had not referred to any medical work, and did not rely upon the au- thoritv of medical writers to support his view.-, hut testified from his own knowledge and experience, it was not proper to read from medical works to contradict him. There can he no doubf of tin; correctness of this decision, which is sustained by the authorities 49 770 LAW OF EVIDENCE IN CRIMINAL CASES. referred to by Mr. Justice Cassoday in Stilling v. Thorp, 54 Wis, 523, 41 Am. Rep. GO. Where a medical witness has testified as from his own knowl- edge and experience to a matter which is within his province as an expert (as that blood stains were caused by human blood cor- puscles) he cannot be impeached by reading to the jury extracts from medical w T orks. Knoll v. State, 55 Wis. 249, 42 Am. Rep. 704. Proof of finding, six months after the alleged murder, blood on timbers and boards of the barn, where according to the testi- mony the body had been, was held competent as tending to cor- roborate. So far as the lapse of time detracted from the force of evidence, it is for the consideration of the jury. After evidence had been given tending to identify certain boards as those taken from the prisoner's sleigh, and that spots, caused by the flow of blood from the dead body, had been on them since the night of the alleged removal, there being no evidence that they had been tampered with since that time or were in any different condition, save that hogs had been dressed upon them, evidence of an expert was received as to certain experiments determining that the spots upon the board were some of them human and some hog's blood. Held, no error, and that the facts that the boards had been a long time out of the possession of the prisoner and had been used by other people, while they affected the question as to the identity of the boards and of the blood spots, did not render such evidence inadmissible. Lindsay v. People, 63 N. Y. 143. Elaborate treatment of this subject is found in a discriminat- ing article by Hon. Clark Bell, reprinted in the September (1892) number of the Medico Legal Journal, under the title of "Blood and Blood Stains in Medical Jurisprudence." § 485. Evidence should Convince Jury Beyond Rea- sonable Doubt. — In cases of homicide before the defendant can be convicted — this being a crime involving a capital punishment — the jurors should be satisfied upon the evidence disclosed, that the accused is guilty ; and their belief in his guilt should be beyond a reasonable doubt. La tig v. State, 84 Ala. 1; Gunter v. State, 83 Ala. 96; Hudspeth v. State, 50 Ark. 534; People v. Gos- law, 73 Cal. 323; Territory v. Bannigan, 1 Dak. 432; Bond v. State, 21 Fla. 738; Weeks v. State, 79 Ga. 36; Marshall v. State,. 74 Ga. 26; Watt v. People, 1 L. R. A. 403, 126 111. 9; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99; Stale v. Trout, 74 Iowa, 545;. MURDER AND MANSLAUGHTER. 771 Craft v. State, 3 Kan. 450; Payne v. Com. 1 Met. (Ky.) 370; Com. v. Robinson, 146 Mass. 571; Sta& v. George, 62 Iowa, 682; State v. Johnson, 37 Minn. 493; McKenna v. State, 61 Miss. 589; Swigar v. Peopte, 109 111. 272; State v. TFa^r, 9S Mo. 93; State v. Anders m, 86 Mo. 309; Territory v. Clayton, 8 Mont. 1; Cas^y v. State, 20 Neb. 138; State v. McCluer, 5 Xev. 132; Peopfe v. Reich, 110 X. Y. 660; People v. WiOson, 109 X. Y. 345; Step& //* v. People. 4 Park. Crim. Kep. 396; State v. Bracer, 98 X. C. 6u7 State v. Harrison, 50 X. C. 115; State v. Anderson, 10 Or. 448 Tiffany v. Cfrm. 121 Pa. 105; McLain v. Cbm. 99 Pa. 86; Henry v. State, 11 Humph. 224; P<*? v. State, 10 Lea, 673; Alexander v. State, 25 Tex. App. 260; //-//V v. State, 24 Tex. App. 103 Williams v. State, 15 Tex. App. 401; Kemp v. State, 11 Tex App. 174; Russell v. Com. 78 Va. 400; Zteaw v. (.',,/„. 32 Gratt It 12; Timmerman v. Territory, 3 Wash. Terr. 445; Territory v Manton, 8 Mont. 95; £r0m< : v. State, 15 Tex. App. 327; Scott v State, 23 Tex. App. 452; Massengalt v. State, 24 Tex. App. 181 Meyers v. Com. SS Pa. 131; /Vy/te v. Lyons, 110 X. Y. 618 Kendrick v. State, 55 Miss. 4:;''.; Stafc v. Clouser, 69 Iowa, 313; Davis v. State, 74 Ga. S69; <><■< rin; Com. v. Drum, 58 Pa. 9; TTa'/T«SM v. CW. 37 Pa. 45; Kilpatrich v. . 31 Pa. 198; State v. ,/<,«<.*, 97 X. C. 469; People v. C%- wmfe, 110 X. Y. 23. § 486. Note on Expert 3Iedieal Evidence. — Apropos of this discussion I will refer to an article published in Yol. 6, p. 126, of the Columbia Law Times, the intent of which is to emphasize the uncertainty and distrust that so frequently attends the testimony of experts especially in capital cases. The article refers particu- larly to the comments of Lord Campbell in The Tracey Peer- age, 10 Clark & F. 154, to the equally incisive criticisms of Justices Earl and Grey of the New York court of appeals in Ferguson v. Hubbell, 97 X. Y. 507^and People v. K n,h ,\ Ll'.i X. Y. 580, respectively, and in the concluding paragraphs quotes Dr. Wharton's familiar phillipic against the whole fraternity of Medical Expert-. Whart. Crim. Ev. § 420. In many ways it will be found instructive as indicating the extreme caution that should accompany the consideration of such evidence. CHAPTER LV. FORGERY. § 487. Forgery Defined. '■ * 488. Wliat ('misfit iilcs an Intent to Defraud. 489. Wliat is' Making a False Document. 490. What Constitutes Uttering. 491. What Evidence is Pertinent. 492. Declarations must be Considered in their Entirety. 493. Burden of Proof is upon Prosecution. 494. Other Forgeries may be Shown. 495. Wliat State must Show in Case of Bill, Note, Chech, etc. 496. Evidence of Handwriting. 497. Divert Evidence Seldom Required. 498. Neio York Code Provisions. § 487. Forgery Defined. — Forgery is defined to be the signing by one without authority, and falsely, and with intent to defraud, the name of another to an instrument, which, if genuine, might apparently he of legal efficacy or the foundation of a legal liabil- ity. State v. Thompson, 19 Iowa, 299; Waterman v. State, 67 111. 91. In Com. v. Costello, 120 Mass. 307, where the defendant was charged with forging a bond to be used for the purpose of dis- solving an attachment, the court held that an instrument falsely made with intent to defraud is a forgery, although if it had been genuine, other steps must have been taken before the instrument would have been perfected, and those steps were not taken. It was contended that the bond was worthless upon its face, as it was not approved, and until approved, could not serve to dissolve the attachment. The court said: "It is true that the false making of an instrument merely frivolous, or one which upon its face is clearly void, is not forgery, because from its character it could not have operated to defraud, or been intended for that purpose; but if the instrument is one made with intent to defraud although before it can have effect other steps must be taken, or other pro- ceedings had upon the basis of it, then the false making is a for- gery, notwithstanding such steps may never have been taken or 772 FORGERY. 773 proceedings had." In Ex parte Finley, 6Q Cal. 264, the defend- ant was convicted of forging a decree of divorce, and it was held that the information was sufficient, without averring a marriage of the parties to the forged decree, as "on its face the writing shows that it may have been used to consummate a fraud." An instrument in writing of which forgery can be predicated is one which, if genuine, would operate as the foundation of another person's liability (Com. v. Ray, 09 Mass. 446; 3 Greenl. Ev. § 103; Reg. v. Boult, 2 Car. & K. 604; Reed v. State, 28 Ind. 396; Gar mire v. State, 2 West. Rep. 284, 104 Ind. 444; 2 Bishop, Crim. L. § 536; State v. Cook, 52 Ind. 574; Abbott v. State, 59 Ind. 70) though the contract need not be perfectly set out, but it must be in the instrument and arise from and be imported by the terms used. Garmire v. State, and Com. v. Ray, supra. The phrase "instrument in writing" or "instrument of writing," means a legal writing or written agreement embodying a promise, a contract, or obligation. 1 Bouvier, Law Diet. 728; 1 Rapalje & L. Law Diet, Q66; Rex v. Moore, 2 Car. & P. 236; Smith v. AdMns, L. II. 14 Eq. 402; State v. Fenly, 18 Mo. 445. When a note or instrument is spoken of as "forged," it is under- stood to be a counterfeit one, and this understanding is in con- formity with the definitions given to the two words by our best lexicographers. Webster's Dictionary, Worcester's Dictionary, Imperial Dictionary, etc. Whenever, therefore, the expression "forged note," or "counterfeit note," is used, we understand the speaker to refer to an instrument by which some one has under- taken to utter and pass, as the genuine and personal act of another, something which he has himself prepared in the similitude and likeness of the other's act, and by such similitude and likeness, which he has endeavored to impress upon the spurious instru- ment, to deceive and defraud. In other words, forgery is the attempted imitation of another's personal act, and by the means of such imitation to cheat and defraud; and not the doing of something in the name of another, which does not profess to be the other's personal act, but that of the doer thereof, who claims and insists by and in the act itself, that he is authorized to obligate the individual, whom he is assuming to obligate pre- cisely as he undertakes to do. 2 Russell, Crimes (9tb Am. ed.), 946,947; Reg. v. White, 1 Den. C. C. 208, 2 Cox, C. C. 210, 2 Car. & K. 404; Rex v. Story, Russ. & R. 81; Rex v. Arscott y 774 LAW OF EVIDENCE IN CRIMINAL CASES. 6 Car. & P. 40S; 2 Bishop, Crirn. L. (7th ed.) § 582; 2 Whart. Crim. L. (7th ed.) § 1432; 2 Archb. Crim. Pr. & PI. (7th ed.) 819; 2 Archb. Crim. Pr. & PI. (Pomeroy's ed.) 1584; Conner's Case, 3 City Hall Rec. 59; Re Heilbonn, 1 Park. Crim. Rep. 429; Com. v. Baldwin, 11 Gray, 197, 71 Am. Dec. 703; State v. Young, 46 N. H. 266, 88 Am. Dec. 212. § 488. What Constitutes an Intent to Defraud. — "An intent to defraud is presumed to exist if it appears that at the time when the false document was made there was in existence a specific person, ascertained or unascertained, capable of being defrauded thereby, and this presumption is not rebutted by proof that the offender took or intended to take measures to prevent such per- son from being defrauded in fact; nor by the fact that he had, or thought he had, a right to the thing to be obtained by the false document. " The presumption may be rebutted by proof that at the time when the false document was made there was no person who could be reasonably supposed by the offender to be capable of being defrauded thereby; but it is not necessarily rebutted by proof that there was no person who could in fact be defrauded thereby. "It is uncertain whether, in the absence of any evidence as to the existence of any person who can be defrauded by a false docu- ment, an intent to defraud will or will not be presumed from the mere making of the document. "An intent to deceive the public or particular persons, but not to commit a particular fraud or specific wrong upon any particu- lar person, is not an intent to defraud, within the meaning of this article." Stephen, Dig. Crim. L. art. 355. Proof of participation in the forgery of a promissory note, and in the use of it as genuine, is of itself proof of the guilty intent. Proof of like acts is allowed in some cases to show a criminal intent in the case of an act which might be an innocent one; but evidence of participation in forging a note, and using it as genu- ine, is of itself proof of guilty intent. Hence the reason of the rule fails in that case. People v. White, 62 Hun, 114. §489. What is Making a False Document. — "To make a false document is " (a) to make a document purporting to be what in fact it is not ; "(b) to alter a document, without authority, in such a manner FORGER V. 775 that if the alteration had been authorized it would have altered the effect of the document; " (c) to introduce into a document, without authority, whilst it is being drawn up, matter which, if it had been authorized, would have altered the effect of the document; "(d) to sign a document; " (i.) in the name of any person without his authority, whether such name is or is not the same as that of the person signing; "(n.) in the name of any fictitious person alleged to exist, whether the fictitious person is or is not alleged to be of the same name as the person signing; "(in.) in a name represented as being the name of a different person from that of the person signing it, and intended to be mis- taken for the name of that person; " (iv.) in a name of a person personated by the person signing the document, provided that the effect of the instrument depends upon the identity between the person signing the document and the person whom he professes to be. " But it is not making a false document " (a) to procure the execution of a document by fraud; "(b) to omit from a document being drawn up matter which would have altered its effect if introduced, and which might have been introduced, unless the matter omitted qualities the matter inserted; "(c) to sign a document in the name of a person personated by the person who signs it, provided that the effect of the instrument does not depend upon his identity with that person. " (d) It is not essential to the making of a false document that the false document should be so framed that, if genuine, it would have been valid or binding, provided that, in eases in which the forgery of any particular instrument is made a specific offense by any stat- ute, the false document must, in order that the offense may be completed, fall within the description given in the Act. "(e) The fact that a document is made t<> resemble that which it purports to he, and is not, is evidence, tor the consideration of the jury, of an intent to defraud, hut is nut essential to the making of a false document. "Provided that, in cases in which the forgery of any particular instrument is made a specific offense by any statute, the false document must have such a resemblance to the document which 116 LAW OF EVIDENCE IN CRIMINAL CASES. it is intended to resemble as to be likely to deceive a common person." Stephen, Dig. Crim. Law, arts. 356. § 490. What Constitutes Uttering. — In People v. Caton, 25 Mich. 392, Judge Cooley says : " To constitute an uttering, it is not necessary that the forged instrument should have been actually received as genuine by the party upon whom the attempt to de- fraud is made. To utter a thing is to offer it, whether it be taken or not." Putting a forged deed on record, or averring it in pleading as a genuine deed, is uttering and publishing it, within the meaning of the statute. Paige v. People, 3 Abb. App. Dec. 439, 6 Park. Crim. Rep. 683. The word "uttering" would seem to be more accurately defined by the word " negotiating," which means, in its popular sense, an intercourse of business, trafficing or treating, accordingly, not only a sale or paying away a counterfeit note or indorsement, but obtaining credit on it in any form, as by leaving it in pledge, or indeed, offering it in dealing, though it be refused, will amount to an uttering and publishing. The delivery of a counterfeit note to an innocent person for the purpose of having it passed away, is per se an uttering by the prisoner, although in another case, the uttering seems not considered complete till the innocent party has actually tendered the note in payment. This rule is based upon the doctrine that where an innocent person is employed for a criminal purpose, the employer must be answerable. Uttering implies two parties, a party acting, and a party acted upon. If, by the way of sale, there must be a vendee; if, by pledge, there must be a pledgee; if, by offer, there must be one present to hear the offer, and if, simply by declaring its goodness, there must be some one addressed as a reader or hearer. The crime of uttering and publishing, is therefore not complete until the paper is trans- ferred, and comes to the hands or possession of some person other than the felon, his agent or servant. People v. Pathlun, 21 Wend. 509. To utter and publish an instrument, is to declare or assert directly or indirectly, by words or actions, that it is good. 2 Archb. Crim. Pr. & PI. S46, note. The crime of forgery is one felony. That may be complete without any uttering and even without publication. 2 Russell, Crimes (Am. ed. 1836) 295, and cases cited. Uttering is another FORGERY. 777 and distinct felony. Even delivery to a guilty agent, for the pur- pose of uttering, thus absolutely and irrevocably parting with the paper, and though the agent complete the uttering, leaves the employer but an accessory. The principal crime is committed by the agent. Till he has performed his office there can be neither accessory nor principal. This alone shows that the disponee must be reached. The same thing, where the agent is innocent, makes the employer a principal. The distinction lies in the doctrine of principal and accessory, a doctrine peculiar to felonies; and the distinction cannot be maintained, if a mere delivery for the pur- pose of negotiation is in itself an uttering. People v. Rathbun, 21 Wend. 534. § 491. What Evidence is Pertinent. — The English authori- ties tenaciously maintain that any evidence is pertinent, which tends to show an unauthorized filling in of a blank check, draft, promissory note, or like instrument of a commercial character, as under their decisions, such an unauthorized filling in of the blank paper, amounts to forgery. In Rex v. Hart, 7 Car. & P. 652, the prisoner was given an accept- ance, blank as to amount, with authority to fill it in for £200. He filled it in for £500. This was held to be forgery, and upon the point being reserved the conviction was sustained by all the English judges. In Reg. v. Bateman, 1 Cox, C. C. 186, it was said that where a check is given with a certain limited authority, the agent is confined strictly within the limits of that authority, and that if he fills in the check with a different amount from that authorized, or if, after the authority is at an end, he fills it with any amount whatever, it is clearly forgery. The doctrine of L'< x v. Hart, was followed in Reg. v. Wilson, 2 Car. & K. 527. There the prisoner was authorized to fill in the amount due on a bill for £150 and interest, then to get the check cashed and pay the bill. Instead of doing this, he filled in £250 and retained part of the proceeds, claiming that it was due him for salary. This was hold to be forgery. Where the authority is general, a different rule prevails. Thus, in Reg. v. Richardson, 2 Fost. & V. 343, the clerk had authority to draw checks upon his employer's bank, nol only to the order of the creditors of the firm, but to his own order, for such sums as he deemed necessary to pay the cash dis- bursements of the business. Upon one occasion ho drew a check to his own order for £11, 10s, the proceeds of which he appropriated. 778 LAW OF EVIDENCE. IN CRIMINAL CASES. He was acquitted of forgery and put on trial for embezzlement, and the court held that the prisoner " could not be convicted of forgery, inasmuch as having a general authority to draw, he did not necessarily exceed his authority when he drew the check; and that the criminal act, if any, was the subsequent appropriation of it." In that case, however, the distinction is observed, in the statement of facts, that the clerk was not bound always to draw the checks in favor of a particular creditor, but had authority to draw generally and pay the creditor with cash. The principle of the English case.- seems to have been generally followed in this country. Whart. Am. Crim. L. (8th ed.) §§ 671, 672; People v. Graham, 6 Park. Crim. Rep. 135; Wilson v. South Park Comrs. 70 111. 46; State v. Maxwell, 47 Iowa, 454; Biles v. Com. 32 Pa. 529, 75 Am. Dec. 568; State v. Kroeyer, 47 Mo. 552; State v. Flanders, 38 N. H. 324. The only cases where a doubt is expressed as to the rule are Putnam v. Sullivan, 4 Mass. 45, 3 Am. Dec. 206, and Van Buzer v. Home, 21 K Y. 531. These, however, were civil actions upon paper which were fraudulently used, or in which the blank amount was fraudulently increased beyond the sum authorized. They were properly decided upon the estoppel principle, and the doubts which were expressed upon the point in question proceeded upon the mistaken idea that, if the paper was forged in the sense of the criminal law, it would be illogical, in a civil action, to hold the persons who signed it. But there is nothing incongruous between a definition of forgery, upon which the guilty agent may be punished criminally, and a civil rule that, notwithstanding the forgery, one who signed the paper in blank, intrusted it to such guilty agent and conferred upon the latter the power of defrauding the innocent, shall suffer rather than the victim. People v. Dickie, 62 Hun, 400. § 492. Declarations must be Considered in their Entirety. — If the prosecution lies on the confession alone, the prisoner is entitled to the full effect of that portion of the confession which goes in his favor; but if there is other evidence upon which the prosecution can with justice insist upon a conviction, the jury may, if they think proper, convict, notwithstanding the confes- sion alone would be sufficient. In other words, if the prosecution uses the declaration of the prisoner, the whole of it must be taken t< »gether. One part cannot be selected, and the other left; and if there be no other evidence incompatible with it, the entire FORGERY. 779 ■declaration of the prisoner must be taken as true. But if, after the whole of the statement of the prisoner is in evidence, the prosecution is in a situation to contradict any part of it, it is at liberty to do so, and then the statement of the prisoner is in evi- dence, the prosecution is in a situation to contradict any part of it, it is at liberty to do so, and then the statement of the prisoner, and all the other evidence, must be left to the jury for their con- sideration, precisely as in any other case, when one part of the evidence is contradictory to another. Roscoe, Crim. Ev. 55. § 403. Burden of Proof is upon Prosecution. — In all criminal cases the burden is upon the prosecution to produce such evidence as will satisfy the jury that the charge against the accused is true, — such evidence that, when the jury has considered it, and all the rest of the evidence, there will remain no doubt {for which a sensible reason can be given) that the accused is guilty. After fairly considering the evidence, if there remains a reason- able doubt upon the evidence, or because of the want of evidence about the guilt of the accused, he is entitled to his acquittal. If, on the other hand, the evidence is of that character that a con- scientious and sensible man may be satisfied that the prisoner is guilty, it is the duty of the jury to find him guilty. United States v. Long, 30 Fed. Rep. 67S. § 404. .Other Forgeries may be Shown. — For the purpose of showing the prisoner's guilty knowledge in such cases it has always been held competent to prove other forgeries. Mayer v. People, SO N". Y. 364; People v. Shulman, 80 N. Y. 373, note. "Such proof is not received for the purpose of show- ing other crimes than that charged in the indictment, but for the purpose of showing the guilty knowledge and intent which are elements of the crime charged, and it can be con- sidered by the jury only for that purpose. Although the evi- dence of Gaylord, corroborated as it was, as to the guilty knowl- edge of the defendant, was quite clear and convincing, yet the people are not bound to rest upon a prima facie case, but have the right to confirm that evidence by the proof as to the uttering oi other forged checks." People v. Ewrhardt, 1"1 N. Y. 591. It is quite obvious that a person may have in his possession one forged pieee of paper without being neccessarily chargeable with information as to its character, hut if possession of several other pieces of forged paper can be shown, the presumption of innocence diminishes. Hence other forgeries can he shown, as well as the 780 LAW OF EVIDENCE IN CRIMINAL CASES. possession of other forged documents. Lindsey v. State, 38 Ohio St. 507; State v. McAllister, 94 Me. 139; Francis v. State, 7 Tex. App. 501; Smith v. State, 29 Fla. 408; Carver v. People, 39 Mich. 786; Coin. v. Russell, 156 Mass. 196; State v. Fisher, 65 Mo. 437; People v. Farrell, 30 Cal. 316; Taylor, Ev. § 322. Evidence may be given upon an indictment for passing coun- terfeit money to establish the passing of other bills of a similar character, for the purpose of showing the intent of the defendant in reference to the passing of the bill for which he is upon trial. So, also, where guilty knowledge is an ingredient of the offense, evidence may be given of the commission of other acts of a like character where they are necessarily connected with that which is the subject of the prosecution, either by some connection of time or place, or as furnishing a clue to the motive on the part of the accused, as in the case of receiving stolen goods, knowing them to be such. Coleman v. People, 58 N. Y. 555. § 495. What State must Show in Case of Bill, Note, Check, etc. — "Where a bill, note, check, etc., is the subject of a forgery it must be shown by the prosecution that the instrument was not signed by the person by whom it purports to be signed or that such person did not exist at the time, or in other words is a fictitious person. And it further appears that the law will re- fuse to recognize a man's intentions as a crime, however corrupt and criminal those intentions may be. His intentions simply form the light by which we read and weigh his acts. People v. Elliott, 90 Cal. 586. § 496. Evidence of Handwriting. — Before a writing can be u.-ed as a standard of comparison of writing it must be proved that the specimen offered as a standard is the genuine handwrit- ing of the party sought to be charged, and this question of its- admissibility is to be determined by the judge presiding at the trial. So far as his decision is of a question of fact merely, it is final, if there is proper evidence to support it; and exceptions to its admission as a standard will not be sustained unless it clearly appears that there was some erroneous application of the princi- ples of law to the facts of the case, or that the evidence was ad- mitted without proper proof of the qualifications requisite for its competency. Com. v. Coe, 115 Mass. 4S1. The same question has very recently been before the court in Vermont in the case of Powell v. Fuller, 5 New Eng. Rep. 217, 59 Vt. 688, where the court, reviewing the decisions there, says FORGERY. 781 that the question has not before been authoritatively decided in that state, and lays down this rule : That when a writing is dis- puted, and another is offered in proof as a standard, the court should first find, as a fact, that the latter is genuine, and then submit it to the jury in comparison with that in controversy. The doctrine as enunciated in Cam. v. Coe, 115 Mass. 481, which is the same as that so recently settled in Vermont, has since been reaffirmed in Costello v. Crowell, 133 Mass. 352, and again in Costelo v. Crowell, 139 Mass. 590. The rule in England is now the same as in Massachusetts and Vermont. For centuries, however, it was otherwise, and the English courts denied the admissibility of such testimony alto- gether, until l s .")4, when Parliament, by IT & 18 Vict. chap. 125, passed what is known as "The Common Law Procedure Act," which provides that "comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise, of the writing in dispute." Under this rule, when any writing is proved to be genuine to the satisfaction of the presiding judge, it shall be admitted as a standard of comparison. By the English rule, under this statute, the jury need not consider or inquire into the genuineness of the writing introduced for the purpose of comparison, as the statute obviates the necessity of any such in- quiry, and makes the finding of the judge conclusive on that point. In the light of the authorities, however, there are courts of high standing and for whose decisions we have great respect, which have adopted a different rule, and which hold that the jury should ultimately pass upon the question. Such is the rule in Xew Hampshire, where, as it is well understood, the doctrine of proof of handwriting by comparison has always clung more ten- aciously to the conservative English common law rule than ever appeared satisfactory to the courts of Maine, Massachusetts, Con- necticut, Vermont, and some of the other states. A witness to handwriting cannot be asked on cross-examination his opinion as to a document not relevant to the issue, and not already received as a standard of comparison for the purpose of contradicting his answers. Van Wyck v. Mcintosh, 11 N. Y. 439; Bank of Commonwealth v. Mudgett, 44 N. Y. 514,523; 782 LAW OF EVIDENCE IN CRIMINAL CASES. United States v. Chamberlain, 12 Blatchf. 390; Rose v. First Nat Bank of Springfield, 91 Mo. 399, 60 Am. Rep. 258. Here issue being whether a check was forged, the court, over objection, permitted to he presented to the bank cashier upon cross-exami- nation, two checks upon which were written the alleged forged name; and subsequently a witness in rebuttal testified that he had written the name at the trial. Held, reversible error, as the rule which excludes comparison with extrinsic papers and signatures, is substantially the same in direct and cross-examination. Tyler v. Todd, 3G Conn. 218, citing Bacon v. Williams, 13 Gray, 525,. to the same effect. Abbott, Trial Brief, § 429. When handwriting is to be proved by comparison, the standard used for the purpose must he the genuine and original writing, and must first be established by clear and undoubted proof. Impres- Note. — While the defendants were putting in their evidence upon the trial, and for the purpose of having a larger number of Mary A. Suiter's genuine signatures in evidence for comparison with the alleged forged signatures, she produced a signature which she said she had written two years before; and the defendants' counsel offered to put it in evidence. Plaintiff's counsel objected to it as incompetent, immaterial and improper, and on the further ground that it was written with a pencil. The trial judge then remarked: "I don't think the signature of a party written on a loose scrap of paper at some time or another should be put in evidence. I will sustain that objection. It would be a dangerous rule to adopt. I will sustain the objection on that particular piece of paper." The same witness then produced two of her signatures written, one fourteen and the other twelve or thirteen years before the trial, and testified that she had written them at the times mentioned; and defendants' counsel offered to put them in evidence for the purpose of comparison. Plaintiff's counsel objected to them on the same grounds as before, and the trial judge said: "I will exclude the evidence and give you an exception. I don't think this evidence is either admissible or safe." It will be observed that these three signatures were not excluded upon the ground that they were not sufficiently proved, or that the judge was not satisfied that they were not genuine. We agree with the general term that these signatures should have been received in evidence for comparison. They would have given to the ex- pert witnesses a wider range for comparison. As it was, the only signatures they had for comparison with the alleged forged signatures were the signatures of Mary A. Suiter to her affidavit upon the answer, and the signature of Ann Suiter to her affidavit upon her answer in this action, which was written by Mary A. Suiter. So that there was in evidence for comparison only one signature of the name of Mary A. Suiter, with which the experts could compare the alleged forged signature. We think the range of comparison was altogether too nar- rowly limited, and that it could not be thus arbitrarily confined. It cannot be said that the exclusion of this evidence was harmless. Mutual L. Ins. Co. of New York v. Suiter, 131 N. Y. 557. FORGERY. 7S& sions of writings taken by means of a press, and duplicates made by a copying machine are not original, and cannot be used as standards of comparison. Corn. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596. The rule as to comparison of handwriting does not apply to the court or the jury, who may compare the two documents together,, when they are properly in evidence, and from that comparison form a judgment upon the genuineness of the handwriting. Griffith v. Williams, 1 (.'romp. & J. 47. But the document with which the comparison is made must be- one already in evidence in the case, and not produced merely for the purpose of the comparison. Thus, where upon an indictment for sending a threatening letter, in order to prove the handwrit- ing to it, it was proposed to put in a document undoubtedly written by the prisoner, but unconnected with the charge, in order that the jury might compare the writing with that of the* letter, Holland, B.. after considering Griffith v. Williams, rejected the evidence, observing, that to say that a party might select and put in evidence particular letters, bearing a certain degree of resemblance or dissimilarity to the writing in question, was a different thing from allowing a jury to form a conclusion from inspecting a document put in for another purpose, and therefore free from the suspicion of having been so selected. Morgan's Case, 1 Mood. & R. 134. In order to prove that the prisoner was guilty of counterfeiting it is not necessary to show that he was detected in the act. but presumptive evidence, as in other cases, will be sufficient, viz : that false coin was found in his possession, and that there were coining tools discovered in his house, etc. But the evidence must be such as to lead to a plain implication of guilt. Two women. were indicted for coloring a shilling and a sixpence, and the third prisoner, a man, for counseling them, etc. It appeared that he had visited them once or twice a week; that the rattling of copper money had been heard whilst he was with them: that on one occasion he was seen counting something after he came out; that he resisted being stopped, and jumped over a wall to escape; and there was foil ml upon him a bad three shilling piece, five bad shillings and five bad sixpences. Upon a case reserved, the judge thought this evidence too slight to support a CQnviction. Isaac's Case, cited in 1 Russ. Crimes (Greave's ed.) 61. 734 LAW OF EVIDENCE IN CRIMINAL CASES. §497. Direct Evidence Seldom Required. — "It is seldom that direct evidence can be given ot the fact of forgery. In the case of negotiable securities, the evidence is usually applied to the uttering rather than to the forging, although both are usually charged. Where the instrument is not of a negotiable nature, as in the case of a bond or will, after proof that the instrument has been forged by someone, a strong presumption necessarily arises against the party in whose favor the forgery is made, or who has the possession of it, and seeks to derive benefit from it. Evidence that the forged instrument is in the handwriting of the prisoner, must, if unexplained, necessarily be strong evidence of his guilt." 2 Stark. Ev. (2d ed.) 460. § 49S. New York Code Provisions. — "A person is guilty of forgery in the first degree who with intent to defraud, forges, " 1. A will or codicil of real or personal property, or the attesta- tion thereof, or a deed or other instrument, being or purporting to be the act of another, by which any right or interest in prop- erty is or purports to be transferred, conveyed, or in any way charged or affected; or, "2. A certificate of the acknowledgment or proof of a will, codicil, deed, or other instrument, which by law may be recorded or given in evidence when duly proved or acknowledged, made or purporting to have been made by a court or officer duly au- thorized to make such a certificate; or, " 3. A certificate, bond, paper, writing, or other public security, issued or purporting to have been issued by or under the authority of this state, or of the United States, or of any other state or territory of the United States, or of any foreign government, country or state, or by any officer thereof in his official capacity, by which the payment of money is promised absolutely or upon any contingency, or the receipt of any money or property is acknowledged, or being or purporting to be evidence of any debt or liability, either absolute or contingent, issued or purporting to have been issued by lawful authority; or, '• 4. An indorsement or other instrument, transferring or pur- porting to transfer the right or interest of any holder of such a certificate, obligation, public security, evidence of debt or liability, or of any person entitled to such right or interest; or, " 5. A certificate of stock, bond or other writing, bank-note, bill of exchange, draft, check, certificate of deposit, or other obliga- FORGERY. 785 tion or evidence of debt, issued or purporting to be issued, by any bank, banking association or body corporate existing under the laws of this state, or of the United States, or of any other state, government or country, declaring or purporting to declare any right, title or interest of any person in any portion of the capital stock, or property of such a body corporate, or promising or pur- porting to promise or agree to the payment of money, or the per- formance of any act. duty or obligation; or, " 6. An indorsement or other writing, transferring or purporting to transfer the right or interest of any holder of such a certificate, bond, or writing obligatory, or of any person entitled to such right or interest." N. Y. Penal Code, § 509. " A person is guilty of forgery in the second degree who, with intent to defraud, " 1. Forges the great or private seal of this state, the seal of any court of record, or of any public office or officer authorized by law, or of any body corporate created by or existing under the laws of this state, or of the United States, or of any other state or territory of the United States, or of any other state, govern- ment or country, or any impression of such a seal; or any gold or silver coin, whether of the United States or of any foreign state government or country; or, "2. Forges a record of a will, conveyance, or instrument of any kind, the record of which is by the law of this state made evi- dence, or of any judgment, order, or decree of any court or officer, or a certificate or authenticated copy thereof; or, "A judgment roll, judgment, order, or decree of any court or officer, or an enrollment thereof, or a certified or authenticated copy thereof, or any document or writing purporting to be such judgment, order, decree, enrollment, or copy; or, "An entry made in any book of record or accounts, kept by or in the office of any officer of this state, or of any village, city, town, or county of the state, by which any demand, claim, obliga- tion, or interest, in favor of or against the people of the state, or any city, village, town or county, or any officer thereof,is or pur- ports to be created, increased, diminished, discharged, or' in any maimer affected; or an entry made in any hook of records or accounts kept by a corporation doing business within the state, or in any account kept by such a corporation, whereby any pecuniary obligation, claim, or credit is or purports to be created, increased, diminished, discharged, or in any manner affected; or, 50 786 LAW OF EVIDENCE IN CRIMINAL CASES. "An instrument, document, or writing, being or purporting to be, a process or mandate issued by a competent court, magistrate, or officer of the state, or the return of an officer, court or tribunal, to such a process or mandate; or a bond, recognizance, undertak- ing, pleading, or proceeding, filed or entered in any court of the state, or a certificate, order or allowance by a competent court, or officer, or a license or authority granted pursuant to any statute of the state or a certificate, document, instrument, or writing, made evidence by any law or statute; or, "An instrument or writing, being or purporting to be the act, of another, by which a pecuniary demand or obligation is or purports to be or to have been created, increased, discharged, or diminished, or in any manner affected, or by which any rights or property whatever are or purport to be or to have been created, transferred, conveyed, discharged, increased, or diminished, or in any manner affected, the punishment for forging, altering, or counterfeiting which is not hereinbefore prescribed, by which false making, forging, altering, or counterfeiting, any person may be bound, affected or in any way injured in his person or property; or, " 3. Makes or engraves a plate in the form or similitude of a. promissory note, bill of exchange, bank note, draft, cheque, cer- tificate of deposit, or other evidence of debt, issued by a banker, or by any banking corporation or association, incorporated or carrying on business under the laws of the state, or of the United States, or of any other state or territory of the United States, or of any foreign government, or country, without the authority of such banker, or banking corporation or association; or, "Without like authority, has in his possession or custody such a, plate, with intent to use, or permit the same to be used, for the purpose of taking therefrom any impression to be uttered; or, " Without like authority, has in his possession or custody any impression taken from such a plate, with intent to have the same filled up and completed for the purpose of being uttered; or, " Makes or engraves, or causes to be made or engraved, upon any plate, any figures or words, with intent that the same may be used for the purpose of falsely altering any evidence of debt herein- before mentioned." N. Y. Penal Code, § 511. "An instrument partly written and partly printed, or wholly printed with a written signature thereto, and any signature or writing purporting to be a signature of, or intended to bind an FORGERY. 787 individual, a partnership, a corporation or association, or an officer thereof, is a written instrument or a writing, within the provisions of this chapter. N. Y. Penal Code, § 513. "A person, who, with intent to defraud or conceal any larceny or misappropriation by any person or any money or property,, either, " 1. Alters, erases, obliterates, or destroys an account, book of account, record, or writing, belonging to, or appertaining to the business of, a corporation, association, public office or officer,, partnership, or individual; or, "2. Makes a false entry in any such account or book of ac- counts; or, " 3. Willfully omits to make true entry of any material particu- lar in any such account or book of accounts, made, written, or kept by him or under his direction; " Is guilty of forgery in the third degree." ]S T . Y. Penal Code, §515. CHAPTER LVI. PERJURY. § 490. Term Defined. 500. Two Witnesses Required to Prove. 501. One Witness Insufficient. 502. Proof Required that Defendant was on Oath. 503. Impeaching Evidence always Competent. 504. Testimony of an Accomplice Received icith Suspicion. 505. Authorities Considered. § 499. Term Defined. — This offense at common law is defined to be a willful false oath, by one who being lawfully required to depose the truth in any judicial proceedings, swears absolutely in a matter material to the point in question, whether he be believed or not. If we analyze this definition we will find, 1st. That the oath must be willful. 2d. That it must be false. 3d. That the party was lawfully sworn. 4th. That the property was judicial. 5th. That the assertion was absolute. 6th. That the falsehood was material to the point in question. The intention must be willful. Tne oath must be taken and falsehood asserted with deliberation, and a consciousness of the nature of the statement made; for if it has arisen in conse- quence of inadvertency, surprise or mistake of the import of the question, there was no corrupt motive (1 Hawk, P. C. chap. 69, § 2); but one who swears willfully and deliberately to a matter which he rashly believes, which is false, and which he had no probable cause for believing, is guilty of perjury. Com. v. Cor- nish, 6 Binn. 249. See United States v. Shellmire, 1 Baldw. 370; State v. Cochran, 1 Bail. L. 50. The oath must be false. The party must believe that what he is swearing is fictitious; for, if intending to deceive, he asserts that which may happen to be true, without any knowledge of the fact, he is equally criminal, and the accidental truth of his evidence will not excuse him. 3 Coke, Inst. 166; 1 Hawk, P. C. chap. 69, § 6. The party must be lawfully sworn. The person by whom PERJURY. 789 the oatli is administered must have competent authority to receive it; an oath, therefore, taken before a private person, or before an officer having no jurisdiction, will not amount to per- jury. 3 Coke, Inst. 166; Jackson v. Humphrey, 1 Johns. 498; Bulloch v. Koon, 9 Cow. 30; State v. MeCroskey, 3 McCord, L. 308; State v. Stephenson, 4 McCord, L. 165; Bex v. Hanks, 3 Car. & P. 419; State v. Alexander, 11 N". C. 182; State v. Hay- ward, 1 Nott & McC. L. 546; State v. Wyatt, 3 K C. 56; Com. v. White, 8 Pick. 453; 2 Eussell, Crimes, 520; 2 Chitty, Crim. L. 304. The proceedings must be judicial. Proceedings before those who are in any way entrusted with the administration of justice, in respect of any matter regularly before them, are con- sidered as judicial for this purpose. 2 Chitty, Crim. L. 303; 2 Russell, Crimes, 51S; 1 Hawk, P. C. chap. 69, § 3. Vide Res- publica v. Newell, 3 Yeates, 414; United States v. Bailey, 34 U. S. 9 Pet. 238, 9 L. ed. 113. Perjury cannot therefore be committed in a case of which the court had no jurisdiction. State v. Alexan- der, State v. Wyatt, State v. MeCroskey, Com. v. White and State v. Hay ward, supra. The assertion must be absolute. If a man, however, swears that he believes that to be true which he knows to be false it will be perjury. 2 Russell, Crimes, 518; Millers Case, 3 Wils. 427, 2 W. Bl. 881; Pedlefs Case, 1 Leach, C. L. 242; Com. v. Cornish, 6 Binn. 249; Gilbert, Ev. (Lofft's ed.) 602. The oath must be material to the question depending. Where the facts sworn to are wholly foreign from the purpose and altogether immaterial to the mutter in question, the oath does not amount to a legal perjury. Chapham v. White, 8 Ves. Jr. 35; Larston's Case, 2 Rolle, 41,42, 369; 2 Russell, Crimes, 521; 3 Coke, Inst. 167; 1 Hawk, P. C. chap. 69, § 8; Bac. Abr. title Per- jury ^ a; State v. Hathaway, 2 Nott. & McC. L. IIS. Nor can perjury be assigned upon the valuation under oath, of a jewel or other thing, the value of which consists in estimation. Leaking v. Clissel, Sid. 146, 1 Keb. 510. It is not within the plan of this work to cite all the statutes passed by the general government, or the. several states on the sub- ject of perjury, ltis proper, however, here to transcribe a part of the 13th section of the Act of Congress. >f March 3, L825,4 Stat, at L. 118, which provides as follows : "If any person in any case, matter, 790 LAW OF EVIDENCE IN CRIMINAL CASES. hearing, or other proceeding, when an oath or affirmation shall be required to be taken or administered under or by any law or laws of the United States, shall, upon the taking of such oath or affirmation, knowingly and willingly swear or affirm falsely, every person, so offending, shall be deemed guilty of perjury, and shall on conviction thereof, be punished by tine, not exceeding two thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years, according to the aggravation of the offense. And if any person or persons shall knowingly or willingly procure any such perjury to be committed, every person so offending shall be deemed guilty of subornation of perjury, and shall on conviction thereof, be punished by fine not exceeding two thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years, according to the aggravation of the offense." 10. In general it may be observed that a perjury is committed as well by making a false affirmation, as a false oath. Vide gen- erally, 16 Vin. Abr. 307; Bac. Abr. h. t.; Com. Dig. title Justices of Peace, B. 102-106; 4 Bl. Com. 137, 13S; 3 Coke, Inst. 163- 168; 1 Hawk, P. C. chap. 60; 2 Russell, Crimes, book V. chap. 1; 2 Chitty, Crim. L. chap. 0; Poscoe, Crim. Ev. h. t.; Burn's J., h. t.; Williams' J., h. t. " Perjury is an assertion upon an oath duly administered in a judicial proceeding, before a competent court, of the truth of some matter of fact, material to the question depending in that proceeding, which assertion the asserter does not believe to be true when he makes it, or on which he knows himself to be igno- rant. In this definition, the word "oath" includes every affirma- tion which any class of persons are by law permitted to make in place of an oath. The expression "duly administered" means ad- ministered in a form binding on his conscience, to a witness legally called before them, by any court, judge, justice, officer, commis- sioner, arbitrator, or other person who, by the law for the time being in force, or by consent of the parties, has authority to hear, receive, and examine evidence. The fact that a person takes an oath in any particular form is a binding admission that he regards it as binding on his conscience. The expression "judicial proceed- ing" means a proceeding which takes place in or under the authority of any court of justice, or which relates in any way to the administration of justice, or which legally ascertains any right, PERJURY. 791 or liability. The word ' fact ' includes the fact that the witness holds any opinion or belief. The word ' material ' means of such a, nature as to affect in any way, directly or indirectly, the proba- bility of anything to be determined by the proceeding, or the credit of any witness, and a fact may be material, although evi- dence of its existence was improperly admitted." Stephen, Dig. Crim. L. art. 135. § 500. Two Witnesses Required to Prove. — The Texas Criminal Code, art. 710, accurately states the modern rule which evidently clings to the views of the old text-writers as modified, and holds that if the perjury is not confessed in open court the falsity of the statement assigned for perjury must be proved by the positive, direct testimony of two witnesses, or by the direct, positive testimony of one witness corroborated strongly by other evidence (evidently circumstantial). Now there may be evidence technically circumstantial which would be amply sufficient to establish perjury. Let us illustrate : B is on trial for the murder of A. C swears that he was at a certain time at a certain place in Travis county, Texas; that B and A were present at that time and place, and that no other person was present; that he saw B shoot and kill A, giving the circum- stances. B is convicted and executed. Subsequent facts lead to the conclusion that C perjured himself, and he is indicted for that offense. Upon the trial it is evident that the prosecution can- not adduce direct evidence against C, but by one or more wit- nesses it can be shown that he was, at the time of the homicide, and on the day of the homicide specified by him, in the city of New York. Technically speaking, this would be circumstantial evidence, but of such character as to be virtually positive or direct evidence. There would be no room for inferences or presump- tions, for, if the jury believed the witness, guilt would result without any process of reasoning or presumptions. Maines v. State, 26 Tex. App. 11. § 501. One Witness Insufficient.— The direct evidence of one witness, who is entitled to full credit, is sufficient for proof of any fact, except perjury and treason. In Com. v. Builand, L19 Mass. 317, Mr. Justice Morton, as the organ of the court, said: "It is not necessary that there should be two living witnesses in contradiction of the statement of the defendant to justify a con- viction of perjury. It is sufficienl if, in addition to one directly 792 LAW OF EVIDENCE IN CRIMINAL CASES. opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal pre- sumption of his innocence are proved. Com. v. Parker, 2 Cush. 212. And where the defendant's statement is contradicted by a wit- ness, who is supported by corroborating circumstances, the evi- dence must ordinarily be submitted, under proper instructions, to the jury, whose province it is to judge of the weight of such cor- roborating circumstances." See also 1 Greenl. Ev. (13th ed.) § 257, and cases cited; United States v. Wood, 39 U. S. 14 Pet. 430, 10 L. ed. 527. § 502. Proof Required that Defendant was on Oath. — In an indictment for perjury it must be directly stated in some form of apt words that the defendant was sworn. It is not sufficient that it so appears by inference or argument. 1 Whart. Am. Crim. L. § 1287; 2 Bishop, Crim. Proc. §912; State v. Dwoll, 44 K H- 142. The indictment in this case only alleges that the defendant did "depose and swear." All that is subsequently said about "said oath," and the taking and administering of the same, refers to the allegation "did depose and swear," and adds nothing to its signification or effect. The case in this respect is nearly on all fours with that of United States v. Hearing, 11 Sawy. 521. In that case the defendant was indicted for perjury in making a home- stead affidavit, which was set out in the indictment. This was followed by an allegation that the defendant did, before a person authorized to administer "said oath," depose and state contrary to his said oath. In sustaining a demurrer to the indictment, the court said that after setting out the affidavit there should have been an allegation "that the defendant, being then and there dulv sworn by the clerk," etc., "did depose and state that such affidavit was true;" and that the allegation that the defendant did depose and state contrary to his said oath is, if anything, an attempt to assign perjury on a "said" or supposed oath, the administration of which is nowhere alleged. But the fact that the defendant was sworn must be distinctly stated. It is not sufficient that it appeal's by implication. United States v. McConaughy, 33 Fed. Hep. 168. "A person who swears or affirms that he will truly testify, declare, depose, or certify, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him sub- scribed, is true, in an action, or a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required TERJUKY. 793 by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be admin- istered, or who in such action or proceeding, or on such hearing, inquiry or other occasion, willfully and knowingly testifies, declares, deposes, or certifies falsely, in any material matter, or states in his testimony, declaration, deposition, affidavit or certifi- cate, any material matter to be true which he knows to be false, is guilty of perjury." N. Y. Penal Code, § 90. The taking of a willful false oath by one who, being lawfully required to depose the truth in any judicial proceeding, swears- absolutely in a matter material to the point in question. Com. v. Smith, 11 Allen, 253. § 503. Impeaching Evidence always Competent. — Judge Andrews in a recent case has said: "Evidence going to the credit of a witness who has given material evidence is relevant, because it helps the jury in determining the main issue. The recent cases sustain the view that perjury may be assigned by false testimony going to the credit of a witness. Reg. v. Glover, 9 Cox, C. C. 501;. Reg. v. Lavey, 3 Car. & K. 26; Archb. Crim. Pr. & PI. 817. False swearing in respect to such matter is not distinguishable in respect to moral turpitude from false swearing upon the merits; and, we think, there is no just reason for refusing to treat false swearing as perjury whenever the testimony is relevant to the case, although it may not directly bear upon the issue to be found." People v. Courtney, 94 N. Y. 190. § 501. Testimony of an Accomplice Received with Suspi- cion. — It is important to remember that all courts receive the testimony of an accomplice with suspicion. The evident infirmi- ties of testimony given by a consort in crime, very properly impress it with elements of extreme disfavor. Where then, as has frequently happened, subsequent developments show that a conviction was secured upon perjured testimony it becomes the duty of the court, if no action be taken by the executive, to take such steps as shall bring to his attention the facts which may rea- sonably lead to the exercise of clemency, the presiding judge, who in the exercise of his legitimate functions has passed sentence upon a fellow citizen, under the influence of perjured testimony, should cause such steps to he taken upon the discovery of the character of the evidence upon which such conviction was based, as will lead to pardon. 794 LAW OF EVIDENCE IN CRIMINAL CASES. These views are fully sustained by a recent decision of the Bupreme court of Colorado. Klhik v. People, 16 Colo. 467. § 505. Authorities Considered. — Upon a trial for perjury, the materiality of testimony alleged to be false is a question of fact for the jury, under proper instructions by the court. 2 Bishop, Oim. Proc. § 935. An indictment for perjury must show on its face that the oath assigned as perjury was willful and false, and that the alleged false statement was material to the issue, or it cannot be sustained. Knobloch, Crim. Dig. 345; State v. Gibson, 26 La. Ann. 71. Perjury may consist not only in false and corrupt testimony on the main fact, but also in such testimony on the material circum- stances tending to prove the issue. Desty, Am. Crim. L. § 75; 3 Greenl. Ev. (14th ed.) § 195. The old rule that to convict of perjury two witnesses were necessary, has been relaxed; and a conviction may be had upon any legal evidence of a nature and amount sufficient to outweigh that upon which perjury is assigned. 1 Greenl. Ev. §§ 257-260; United States v. Wood, 39 U. S. 14 Pet. 430, 10 L. ed. 527: State v. Herd, 57 Mo. 252, 1 Am. Crim. Rep. 502; Williams v. Com. 91 Pa. 501. In Bey. v. Parker, A, having stated on an affidavit that he had paid all the debts proved under his bankruptcy except two; on an indictment for perjury on this affidavit, one of the assignments was that A had not paid all the debts proven except two; and another that certain other creditors were not paid in full. In support of this affidavit several creditors were called, who each proved the non-payment of his own debt. And it was determined that this was not sufficient to warrant conviction; that, as to the non-payment of each debt, it was necessary to have the testimony of two witnesses, or of one witness and some circumstances to supply the place of a second witness. 1 Car. & JVL 639. In Williams v. Com. supra, the court, in deference to 1 Greenl. Ev. ;i 2.">7, and Peg. v. Parker, supra, says: "The explanation ought to have been that the commonwealth is required to prove by two witnesses, or one witness and corroborative evidence, at least one corrupt payment, contribution or promise which the defendant is charged with having made or paid; and, though each of several such acts be proved by a single witness, if none be proved by two witnesses, or by one witness and corroborative proof of circum- stances, there could not be a conviction. ,- PERJURY. 795 "The preponderance of contradictory proof must go to some •one particular false statement. It will not be sufficient to prove by some inadequate line of testimony that one statement made by •the defendant is false, and then by another inadequate line of tes- timony that another statement made by him is false." "VVhart. •Grim. Ev. § 387. These cases sufficiently explain what is meant, when it is said that where there are several assignments of perjury, there must be, in addition to one witness, corroborative evidence as to each. Proof of any sufficient assignment will sustain a count containing several assignments of perjury. 2 Bishop, Crim. Proc. § 934; Com. v. Johns, 6 Gray. 274; Harris v. People, 64 K Y. 148; State v. RascaU, 6 X. H. 352. "•Where a witness has given testimony material to the issue, and in answer to a question as to whether he had not previously made a statement different from the testimony then given, he denies having done so, the answer affects his credibility as a wit- ness, and a charge of perjury may be founded upon it." People v. Barry, 63 Cal. 62, and cases cited. "It is not necessary that •the false statements should tend directly to prove the issue in order to sustain an indictment. If the matter falsely sworn to is circumstantially material or tends to support and give credit to the witness in respect to the main fact, it is perjury. And it is equally perjury if the false testimony tends to discredit the wit- ness." 2 Bishop, Crim. Proc. ^ 934; Wood v. People, 59 N. Y. 123; Marvin v. State, 53 Ark. 395. It must appear either from the facts set forth in an indictment for perjury that the matter sworn to and upon which the perjury is assigned was material or it must be expressly averred, that it was material, and the materiality must be proved on the trial or then- can be no conviction. A falsi' oath upon an immaterial matter will not support a conviction of perjury. Roscoe, Crim. Ev. 758; 2 Russell, Crimes, 639. The whole law in reference to perjury is based upon the idea that when there is witness against witness, oath against oath, there must he other evidence to satisfy the mind. Schwartz v. Com. 27 Gratt. L025, 21 Am. Rep. 365. Two early English cases are sometimes cited as holding that the perjury may he established by proof of the contradictory oath merely, without other evidence. One of these is an anonymous 796 LAW OF EVIDENCE IN CRIMINAL CASES. case decided by Yates, J., at the Lancaster assizes in 1764, and the ruling approved by Lord Mansfield. The other is the case of Rex v. Knill, 5 Earn. & Aid. 929, note. It is shown however in 2 Russell on Crimes, 652, that in each of these cases there were corroborating circumstances in addition to the contradictory oath. But if these cases even go to the extent which is claimed for them, they are overruled by the later English decisions. And it is now held by those courts that the defendant's own evidence upon oath is not sufficient of itself to disprove the evidence on which the perjury is assigned. In Reg. v. Wheatland', 8 Car. & P. 238, Mr. Baron Gurney held that it was not sufficient to prove that the defendant had, on two different occasions, given direct contradictory evidence,, although he might willfully have done so; but that the jury must be satisfied, affirmatively, that what he swore at the trial was false, and that would not be sufficiently shown to be false by the mere fact that the defendant had sworn contrary at another time;, it might be that his evidence at the trial was true, and his depo- sition before the magistrate false. There must be such confirma- tory evidence of the defendant's deposition before the magistrate as proved that the evidence given by the defendant at the trial was false. In Reg. v. Hughes, 1 Car. & K. 519, Tindall, Ch. J., said: "If you merely prove the two contradictory statements on oath, and leave it there, non constat, which statement is the true one." See also JacksoiCs Cane, 1 Lew. C. C. 270; Eoscoe, Crim. Ev. 767,. 768. In the United States there are but few decisions bearing upon the question. The writers on criminal law, however, lay down the rule in conformity with the English cases. 3 Wharf. Am. Crim. L. § 2275; 2 Bishop, Crim. L. § 1005; 1 Greenl. Ev. 259. Schwartz v. Com. 27 Gratt. 1025, 21 Am. Rep. 365. "The principle that one witness with corroborating circumstances is sufficient to establish the charge of perjury, leads to the conclu- sion that circumstances, without any witness, when they exist in documentary or written testimony, may combine to the same effect; as they may combine, altogether unaided by oral proof, except the evidence of their authenticity, to prove any other fact, connected with the declarations of persons or the business of human life. The principle is, that circumstances necessarily PERJURY. 797 make a part of the proofs of human transactions; that such as have been reduced to writing, in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde, and that such as have not been re- duced to writing, whether they relate to the declarations or con- duct of men, can only be proved by oral testimony. Accordingly, it is now held that a living witness of the corpus delicti may be dispensed with, and documentary or written evidence be relied upon to convict of perjury, — first, where the falsehood of the matter sworn by the prisoner is directly proved by documentary or written evidence springing from himself, with circumstances showing the corrupt intent; secondly, in cases where the matter so sworn is contradicted by a public record, proved to have been well known by the prisoner when he took the oath, the oath only being proved to have been taken; and, thirdly, in cases where the party is charged with taking an oath, contrary to what he must necessarily have known to be true; the falsehood being shown by his own letters relating to the fact sworn to, or by any other writ- ten testimony existing and being found in his possession, and which have been treated by him as containing the evidence of the fact recited in it. If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted. 1 Greenl.Ev. §§ 258, 259. Note. — Perjury, sufficiency of evidence to convict. When oral testimony is relied upon to establish perjury, the general rule is that there must be the testimony of two witnesses, or of one witness corrobo- rated by circumstances. Two witnesses are generally required. Reg. v. Mus cot, 10 Mod. 194; Bex v. Broughton, 2,Strange, 1280; Clifford v. Brooke, 13 Ves. Jr. 134; 2 Bridginan, Index, 395; 2 Stark. Ev. 262; Rex v. Mayhew, 6 Car. & P. 315, note. Because if a person could be found guilty on the testimony of a single wit- ness, there would only be one oath against another. 4 Bl. Com. 358. But where the defendant himself, in one part of his affidavit, states a fact, and afterwards, in another part, contradicts it, then one witness would be sufficient to prove the falsity of the statement first made. Rex v. Harris, 5 Barn. & Aid. 926, 929, note. On an indictment for perjury, two witnesses are not necessary to disprove the facts sworn to by the defendant; but where there is but one witness, some other evidence must be adduced independent of, and in addition to his testimony. StaU v. Hayward, 1 Nott & McC. 1.. 547; Woodbeck v. Keller, 6 Cow. 118; /•' i v Mayhew, 6 Car. & P. 315; Coulter v. Stuart, 2 Yen:. 225; Merritt's Case, -1 City Hall Rec. 58; Francis' Case, 4 City Ball Rec L2; 2 Russell, Crimes, 544, 545. The oafli of one witness and the declarations of the defendant inconsistent 798 LAW OF EVIDENCE IN CRIMINAL CASES. •with the oath in which perjury is assigned are sufficient. State v. Molier, 12 N. C. 263; Woodbeek v. Keller, supra. This strong proof in cases of perjury seems to be required not only as to the falsity of the oath, but as to the facts sworn to. State v. Howard, 4 McCord, L. 159. On a trial for perjury, the testimony of one witness is sufficient to prove that the defendant swore as is alleged in the indictment. Com. v. Pollard, 12 Met. 225. The testimony of one witness, corroborated by the letters of the defendant to him, is competent and sufficient evidence of the falsity of the statement alleged as the perjury. Com. v. Parker, 2 Cush. 212. Subornation of perjury may be proved by the testimony of one witness. Com. v. Douglass, 5 Met. 241. The better opinion is that one who swears in honest belief, although without probable cause, is not guilty. Browne, Crim. L. 86. Citing Com. v. Brady, 5 Gray, 78; State v. Chamberlain, 30 Vt. 559; Com. v. Thompson, 3 Dana, 301. Whether materiality is a question of fact or of law is mooted. Browne, Crim. L. 86; 2 Bishop, Crim. L. § 1039, a. To establish perjury requires two witnesses, or circumstances corroborating a single witness. Com. v. Pollard, 12 Met. 225; Williams v. Com. 91 Pa. 493. To constitute a valid oath, for the falsity of which perjury will lie, there must be an unequivocal and present act in some form in the presence of an offi- cer authorized to administer oaths, by which the affiant consciously takes upon himself the obligation of an oath. The mere delivery of an affidavit, signed by the person presenting it, to the officer for his certificate, is not such an act. O'Reilly v. People, 86 N. Y. 154 T 40 Am. Rep. 525. To sustain a conviction, it was necessary to show that the oath had been le- gally administered and taken in due form of law. People v. Tuttle, 36 N. Y. 431; State v. Morris, 9 N. H. 96; Dodge v. State, 24 N. J. L. 455. While it is perjury for one knowingly and willfully to swear to a fact as true about which he knows nothing, the swearing to an affidavit, the contents of which the deponent does not know, is not necessarily perjury; to constitute the crime he must have willfully made the affidavit, knowing that he did not know its contents or the facts alleged. Byrnes v. Byrnes, 102 N. Y. 5. To sustain a conviction of perjury, it is essential that the testimony given should be false, and known to be such, or not known to be true, though so alleged. If the witness testified under an honest mistake or misapprehension and honestly believed what he testified to be true, a conviction cannot be had. People v. Dishler, 4 N. Y. Crim. Rep. 188. CHAPTER LVII. BIGAMY. § 506. Wliat Constitutes the Crime. 507. What Evidence is Admissible. 508. The Case of Reg. v. Lumley Examined. 509. Rule under the Common Laic. 510. Domestic Marriage, how Proved. 511. Views of an Eminent Text-writer. 512. Act aid Marriage mast be Shozon. 513. First Marriage may be Proved by Confession. 514. General Reputation and Co-ltabitation as Proof of Mar- riage. 515. What must be Shown by the Prosecution. 516. Legal Wife not a Competent Witness. § 506. What Constitutes the Crime. — "A person who. having a husband or wife living, marries another person, is guilty of bigamy, and is punishable by imprisonment in a penitentiary or state prison for not more than five years. " The last section does not extend, "1. To a person whose former husband or wife has been absent for five years successively then last past, without being known to him or her within that time to be living, and believed by him or her to be dead; or, "2. To a person whose former marriage has been pronounced void, or annulled, or dissolved, by a judgment of a court of com- petent jurisdiction, for a cause other than his or her adultery, or,. " 3. To a person who being divorced for his or her adultery has received from the court which pronounced the divorce, permission to marry again, or, "4. To a person whose former husband or wife has been sen- tenced to imprisonment for life." X. Y. Penal Code, §§ 298, 299. § 507. What Evidence is Admissible. — As to what e\ idence is admissible, and what evidence is sufficient, to establish a prior valid marriage, there seems to exist a contrariety of opinion and decision in the books. A valid marriage must be proved, ami some statutes say "mere reputation" is not sufficient proof of the fact. 799 800 LAW OF EVIDENCE IN CRIMINAL CASES. Not that reputation is not admissible as evidence to be taken in connection with other proofs to establish the fact, but that in and of itself alone and without other evidence, it is insufficient to establish the fact. § 508. The Case of Reg. v. Lumley Examined. — The judg- ment in Reg. v. Lumley, L. R. 1 C. C. 196, sustains this rule, and in fact goes further, and holds that the law makes no presumption that a person continues to live, from the proof of his or her exist- ence at a former date. In that case, which was a prosecution for bigamy, the facts were as follows: The prisoner married one Victor at St. Helier's in the island of Jersey, in the year 1836, and lived with him in England until the middle of 1843, when they were separated, and she was taken by her parents back to Jersey, where she resumed her maiden name. On the 9th of July, 1847, she describing herself as a spinster, married Lumley, with whom she lived until March, 1864. Nothing was heard of Victor from the time the prisoner left him in 1843. No evi- dence was given of the age of Victor, by which it might be reasonably inferred that death had supervened. The learned judge (Lush) before whom the trial was had, directed the jury that there being no circumstances leading to any reasonable infer- ence that he had died, "Victor must be presumed to have been living at the date of the second marriage." The question whether this direction was right or not was reserved for the opinion of the court. The case was argued before a court composed of Kelly, G. B., Cleasby, B., Byles, Lush and Brett, J J. Lush, J., deliv- ered the opinion of the court. He said: "We are of opinion that the direction to the jury in this case (stating it as given above) was erroneous. In an indictment for bigamy it is incumbent upon the prosecution to prove, to the satisfaction of the jury, that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date. If f«>r example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible that he was living on the latter day, and the jury would in all probability find that he was so. If on the other hand, it were proved that he was then in a dying condition, and nothing further was proved, they would probably decline to BIGAMY. 801 draw that inference. Thus the question is entirely for the jury. The law makes no presumption either way. The cases cited of Hex v. Twyning, 2 Barn. & Aid. 386; Rex v. Harborne, 2 Ad. & El. 540, and Nepean v. Doe, 2 Mees. & W. 894, appear to us to establish this proposition. Where the only evidence is that the party was living at a period which is more than seven years prior to the second marriage, there is no question for the jury. The proviso in the act (24 & 25 Vict. chap. 100, § 57) then comes into operation, and exonerates the prisoner from criminal liability, though the first husband or wife be proved to have been living at the time when the second marriage was contracted. The legis- lature by this proviso sanctions a presumption that a person who has not been heard of for seven years is dead; but the proviso affords no ground for the converse proposition, viz: that when a party has been seen or heard of within seven years, a presumption arises that he is still living. That is always a question of fact." § 509. Rule under the Common Law. — Where a suit for divorce originated at an early day, and occurring on a state of facts at a time when the common law was not the rule of action as part of the law of the country, it was held that "cohabitation and common repute, as establishing a former marriage in countries governed bv the common law, cannot be admitted as evidence to annul a subsequent marriage contracted here while Texas was a part of Mexico, and solemnized according to the laws which then governed this country." And in such case it was further held that "the production of a certified copy from the office of a county recorder in the state of Missouri of a certificate under the sign manual of a justice of the peace that he had solemnized such former marriage according to law, cannot be admitted as compe- tent evidence to establish such foreign marriage to the exclusion of the domestic marriage, without due proof of the laws of that state relating to the subject-matter." Smith v. 8m ith, 1 Tex. 621, 46 Am. Dec. 121; Rice v. Rice, 31 Tex. 174. After the common law became the ride of action, it was held that "proof of general reputation, cohabitation of parties, and gen era! reception as man and wife, was competent evidence in a suit for divorce." Wright v. Wright, 6 Tex. 3. § 510. Domestic Marriage, how Proved. — Proof of a do tic marriage, or one thus solemnized, may unquestionably be made 51 802 LAW OF EVIDENCE IN CRIMINAL CASES. by the record, or by a certified copy thereof. Rev. Stat. art. 2252. This however is nowhere declared the only, or even the best mode of making the proof in domestic marriages. It is- believed that even in such cases, without the introduction of the record at all, the fact may be fully and completely established by the testimony of eye-witnesses who were present when the rites were solemnized. Where no rule of proof is expressly prescribed by statute, the marriage may be proven by parol. Mr. Bishop says: "The common course of proof is to present the record evidence, and with it, evidence to identify the parties, and these are prima facie sufficient. The testimony of persons present at the marriage is good evidence without the record, though the absence of the record may, under some circumstances, create suspicion." Bishop, Statutory Crimes, § 610. Where the time and place of the first marriage are known, the rules thus announced clearly indicate the character and sufficiency of the evidence to be adduced. But in prosecutions for bigamy it happens, in a majority of instances, perhaps especially where the first marriage took place, as is generally the case with biga- mists, in some other state or country, that the prosecuting officer must be wholly ignorant of, and that it is impossible for him to find out, the time and place of the prisoner's first marriage, or the names and residences of those present at its consummation. Such avenues of information are generally endeavored to be con- cealed by the guilty party. Where they are thus concealed, and the prosecution has been unable to find, open up and produce them, what evidence aliunde must and can be produced to supply their places '? We find, in a note to the case of Taylor v. State, 52 Miss. 84, reproduced in 2 Hawley's American Criminal Re- ports, the following apt observations on this subject by the editor. He says : " In some states it has been held, where in a criminal case it was found necessary to prove a marriage in order to con- vict a defendant of a crime with which he was charged, that all the essentials to a valid marriage must be strictly proved, as well as the law of the state or country where the marriage was cele- brated; and also that the admissions of the defendant's cohabita- tion and reputation were not sufficient evidence of such marriage. But experience has proven that such a rule in the United States amounts, in a large number of cases, to a denial of justice. Our people arc migratory in their habits, and very many of our foreign BIGAMY. 803 born citizens were married in the countries where they were born. To prove, in Missouri, a marriage which was celebrated in Bavaria, or even in Canada, within the rule adopted in some cases, is oftentimes an impossible task. Doubtless on account of this difficulty, the rule has been modified, and the better doctrine now is that cohabitation, reputation and admissions, are sufficient evidence of a legal marriage to submit to a jury." 2 Ilawley, Am. Crim. Rep. 17. The doctrine and the opposing and con- flicting authorities are all fully noted by the editor in his note. In Re Rhene, L. R. 5 Oh. App. 139, the question whether there was any presumption of law that a person continued to live arising upon proof of prior existence was very fully discussed and it was held that the law makes no such presumption. This was held to apply to civil and criminal cases alike. This question was also discussed at length by Field, J., in a case {Montgomery v. Bevans, 1 Sawy. 666) tried before him in the United States cir- cuit court for California. He reviewed several of the English cases considered in Re Rhene, as well as this case, and came to the conclusion that the law as declared in England in Re Rhene was different from the law which obtains in this country, stating: at the time that when this presumption of the continuance of life conflicts with the presumption of innocence, the latter prevails. In the opinion delivered in the case referred to, the learned justice says : " But the law as thus declared in England is different from the law which obtains in this country, so far as it relates to the presumption of the continuance of life. Here, as in England, the law presumes that a person who has not been heard of fur seven years is dead, but here the law, differing in this respect from the law of England, presumes that a party once shown to be alive continues alive until his death is proved, or the rule of law applies by which death is presumed to have occurred, that is, at the end of seven years. And the presumption of life is received, in the absence of any countervailing testimony, as conclusive of the fact, establishing it for the purpose of determining the rights of parties as fully as the most positive proof. The only exception to the operation of this presumption is when it conflicts with the pre- sumption of innocence, in which case the latter prevails." Mont- gomery v. Bevans, 1 Sawy. 666. The rule thus stated as to these conflicting presumptions by Field, J., is sustained by Rex v. Twyning, 2 Barn. & Aid. 385. 804 LAW OF EVIDENCE IN CRIMINAL CASES. § 511. Views of an Eminent Text-writer. — The offense con- sists in entering into a void marriage where a valid one already exists. Proof of an actual or ceremonial first marriage is not necessary; but evidence that the prisoner has declared himself and has been reputed to be married will suffice. This, however, is denied in some states. In some states a party against whom a divorce is obtained may not marry while the other party is living, and disobedience is bigamy. But a remarriage out of the state, followed by a return to the state, is not bigamy, even if the sec- ond wife is an inhabitant of that state, and the parties went away to evade the law. Browne, Crim. L. p. 39, citing People v. Brown, 34 Mich. 339, 22 Am. Rep. 531; Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225; Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; Halhrooh v. State, 34 Ark. 511, 36 Am. Rep. 17; Parker v. State, 77 Ala. 77, 53 Am. Rep. 643; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195 ; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Com. v. Littlejohn, 15 Mass. 163; State v. Ros- well, 6 Conn. 446; People v. Humphrey, 7 Johns. 314; Green v. State, 21 Fla. 403, 58 Am. Rep. 670; Com. v. Putnam, 1 Pick. 136; People v. Faber, 92 K Y. 146, 44 Am. Rep. 357; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Van Voorhis v. Brint- nall, 86 K Y. 18, 40 Am. Rep. 505. § 512. Actual Marriage must be Shown. — Mr. Bishop says: ''Record evidence and evidence of witnesses present at the cere- mony will be required where these can be had. But where the circumstances of the particular case show that these cannot be had, and in all cases as confirmatory of them, and in the proper cases as dispensing with them, it is competent to show the admis- sions of the party or his prior cohabitation under pretense of marriage, and various other things of like import." Bishop, Statutory Crimes, § 609. In Com. v. Jackson, 11 Bush, 679, 21 Am. Rep. 225, where the question before the court was what proof of marriage was ad- missible and sufficient in a case of bigamy, the court says : "The circuit judge seems to have been of the opinion that an indict- ment for bigamy could not be maintained without proof of the fact of two marriages, either by record evidence or by the testi- mony of one or more witnesses who were present at the solemni- zation of the marriage rites; or, in other words, that the declara- tions and conduct of defendant, admitting his marriage, and BIGAMY. 805 living with and recognizing the woman as his wife, were not sufficient to warrant the jury in finding a verdict against him. This is a subject about which there is irreconcilable conflict in the authorities. In Massachusetts, New York and Connecticut, and perhaps in some other states, it has been held that in prosecutions for bigamy an actual marriage of the prisoner must be proven, and that neither cohabitation, reputation, nor the confessions of the prisoner are admissible for that purpose, or if admissible, are not of themselves sufficient to warrant conviction. Com. v. Lit- ilejohn, 15 Mass. 163; Stale v. Roswell, 6 Conn. 446; People v. Humphrey, 7 Johns. 314. On the other hand, it has been held in South Carolina, Virginia, Georgia, Alabama, Ohio, Pennsylva- nia, Maine and Illinois, that in prosecutions for bigamy the con- fessions of the prisoner deliberately made are admissible as evi- dence to prove marriage in fact, and in some of those states that such confessions are of themselves sufficient to authorize the jury to convict. State v. Britton, 4 McCord. L. 256; State v. Hilton, 3 Rich. L. 434, 45 Am. Dec. 7S3; Warner v. Com. 2 Va. Cas. 95; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Cameron v. State, 14 Ala. 546, 48 Am. Dec. Ill; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; Com. v. Murtagh, 1 Aslnn. 272; Ferner v. Halla- cher, 8 Serg. & R. 159; Cayford's Case, 7 Me. 57; Ham's Case, 11 Me. 392; Stale v. Hodgskins, 19 Me. 155; Jackson v. People, 3 111. 231." § 513. First Marriage may be Proved by Confession.— In Miles v. United States, 103 U. S. 304, 26 L. ed. 481, it was held by the Supreme Court of the United States, that "on an in- dictment for bigamy the first marriage may be proved by the admissions of the prisoner, and it is for the jury to determine whether what he .said was an admission that he was actually and legally married according to the laws of the country where the marriage was solemnized." And in addition to the cases cited above in Jackson v. People, 3 111. 231, this last opinion cites Reg. v. Svmmonsto, 1 Car. & K. I'll, cited in 1 Russell, Crimes (Greaves' ed.) 218; Dutchess of Kingston's Case, 20 Eow. St. Tr. 355; Rex v. Trueman, 1 East, 1'. C. 470; State v. Lilly, 44 Mr. 469; Bex v. Norwood, 1 East, P. C. 470; Reg. v. Newton, 2 Mood. &R. 503; State v. McDonald, 25 Mo. L76; State v. Seals, L6Ind. 352; Brown v. State, 52 Ala,. 338; Williams v. State, 44 Ala. 24. In Langtry v. State, 30 Ala. 536, it was held that in prosecutions 806 LAW OF EVIDENCE IN CRIMINAL CASES. for bigamy the first marriage may be proved by cohabitation and the confessions of the prisoner; and such evidence, if full and sat- isfactory, is sufficient to authorize a conviction without the pro- duction of the records or the testimony of a witness who was present at the ceremony. It was held in England and in some of the states of this Union that evidence of declarations as to a former marriage was compe- tent in the trial of an indictment for bigamy against the party making them. Miles v. United States, 103 U. S. 304, 26 L. ed. 481. But in New York it has been held that such evidence was not sufficient in a prosecution for bigamy, to establish a marriage even against the party making the admissions. People v. Humphrey, 7 Johns. 314; Gahagan v. People, 1 Park. Crim. Eep. 378. The court in the latter case held them admissible to corroborate the proof of the actual marriage. §514. General Reputation and Cohabitation as Proof of Marriage. — It appears to us to be well settled from many au- thorities that general reputation, cohabitation, and admissions or confessions of the party are all admissible evidence of the fact of the first marriage. General reputation alone is insufficient, but taken in connection with cohabitation and admission, is competent evidence to establish a prima facie case sufficient to sustain a ver- dict and judgment of conviction for bigamy. Whenever such evidence establishes, in the minds of the jury, beyond a reasonable doubt, the existence of the fact of a valid first marriage, then it is sufficient in that regard to sustain a verdict and judgment for bigamy. A valid marriage must be proven, and if such evidence is relied upon it must establish the existence of a valid marriage to the satisfaction of the jury beyond a reasonable doubt. In Miles v. United States, 103 IT. S. 304, 26 L. ed. 481, where it is held, approving Reg. v. Simmonsto, 1 Car. & K. 164, that "on an indictment for bigamy the first marriage may be proved by the admissions of the prisoner, and it is for the jury to deter- mine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized." The court, of itself high authority, cited, as also sustaining this view, Reg. v. Upton, 1 Car. & K. 165, note, cited in 1 Russell, Crimes (Greaves' ed.) 218; Dutchess of Kings- tori's Case, 20 How. St. Tr. 355; Rex v. Trueinan, 1 East, P. C. BIGAMY. 807 470; CayforcVs Case, 7 Me. 57; Ham's Case, 11 Me. 391; State v. Libly, 44 Me. 469; £fafe v. 5*fton, 3 Rich. L. 434, 45 Am. Dec. 783; State v. Br iff on, 4 McCord, L. 256; Warner v. Com. 2 Va. t, P. C. 460. The text of East is supported by the following citation of authorities: 1 Hale, P. C. 603; 2 MS. Sum. 331; Ann Cheney's Case, (J. B. May, 1730, Sergt, Foster's MS. In Peake's Evidence (Norris ), 248, it is said : " It is clearly settled that a woman who was never legally the wife of a man, though she has been in fact married to him, may be a witness against him; as in an indictment for bigamy, the first marriage being proved by other witnesses, the second wife may be examined to prove the marriage with her, for she is not de jure his wife." The result of the authorities is that as long as the fact of the first marriage is contested, the second wife cannot be admitted to prove it. When the first marriage is duly established by other evidence to the satisfaction of the court, the second may be ad- mitted to prove the second marriage but not the first, and the jury should have been so instructed. BIGAMY 811 Any person who was present when the marriage took place is a ■competent witness to prove the marriage; and it is enough that he is able to state that the marriage was celebrated according to the usual form, and he need not be able to state the words used. Fleming v. People, 27 ST. Y. 329; Lord v. State, 17 Neb. 526. CHAPTER LYIII. RAPE. § 517. The Term Defined. 518. Offense must be "by Force, against her Will." 519. What must be Shown. 520. Reputation of the Prosecutrix for Chastity. 521. Complaint of the Outrage mag be Shown. 522. Caution as to the Admission of Uncorroborated Testi- mony. 523. Utmost Resistance must be Shoion. 524. Presumption as to Infants. 525. Evidence of Previous Offenses or Attempts. 526. Consent Secured by Fraud. § 517. The Term Defined.— "Rape is an act of sexual inter- course with a female not the wife of the perpetrator, committed against her will or without her consent. A person perpetrating such an act, or an act of sexual intercourse with a female not his- wife, " 1. When the female is under the.age of sixteen years; or, " 2. When through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent; or, " 3. When her resistance is forcibly overcome; or, " 4. When her resistance is prevented by fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her; or, "5. When her resistance is prevented by stupor or by weakness of mind produced by an intoxicating narcotic, or anaesthetic agent, administered by, or with the privity of, the defendant; or,. " 6. When she is, at the time, unconscious of the nature of the act. and this is known to the defendant, — is punishable by impris- onment for not less than five nor more than twenty years." jSI. Y. Penal Code, § 278. § 518. Offense must be "by Force, against her Will."'— The statutes contemplate that the offenses shall be "by force, against her will." McClellan's Dig. p. 355, § 36; 2 Bishop, Crim. L. 812 KAPE. 813 § 1113; Charles v. State, 11 Ark. 389; State v. Murphy, 6 Ala. 765, 41 Am. Dec. 70. There must be a concurrence of these two ingredients. Cato v. State, 9 Fla. 163, 184. If force was used and yet the carnal knowledge was not against the will of the female, the crime of rape has not been committed. In some states it has been held that there must be resistance to the extent of the woman's ability. Thus in New York, in People v. Dohr- ing, 59 1ST. Y. 374, 17 Am. Rep. 349, where a female was but fourteen years old, the decision is, that to constitute the crime of rape of a female over ten years of age, when it appears at the time of the alleged offense she was conscious, had the possession of her natural mental and physicial powers, was not overcome by numbers, or terrified by threats, or in such place and position that resistance would have been useless, it must be made to appear that she did resist to the extent of her ability at the time and under the circumstances. See also People v. Morrison, 1 Park. Crim. Rep. 025; People v. Quin, 50 Barb. 128. In other states it is said that there must be the utmost reluctance and the utmost resistance upon the part of the female, or her will must be overcome by fear of the defendant {Strang v. People, 24 Mich. 6) and that "the passive policy." or a half way case will not do, or resistance of such an equivocal character as to suggest actual consent, or not a very decided opposition. State v. Burgdorf,5Z Mo. 05; People v. Brown, 47 Cal. 447; People v. Hulse, 3 Hill, 309, 315, 317. If the jury entertain a reasonable doubt of such a reluctance, they should acquit (Strung v. People, supra) and where upon a trial the vital issue was whether the act was committed by force and against the will of the prosecutrix, the jury must be satisfied beyond a reasonable doubt that she did not yield her consent during any part of the act. Brown v. People, 30 Mich. 203. In Com. v. McDonald, 110 Mass. 405, the trial judge charged that the act of the defendant must have been without the woman's •consent, and there must have been sufficient force used to accom- plish his purpose; that the jury must be satisfied that there was no consent during any part of the act, and thai the degree of resistance was frequently an essential matter tor them to consider in determining whether the alleged want of consent was honest and real: hut that there was no rule of law requiring a jury to In- satisfied that the woman, according to their measure of her 814 LAW OF EVIDENCE IN CKIMINAL CASES. strength, used all the physical force in opposition of which she was capable; and this charge was held by the supreme court to be appropriate and correct. Likewise in State v. Shields, 45 Conn. 256, the supreme court of Connecticut approved a charge that there was no rule of law that there could be no rape unless the woman manifested the utmost reluctance and made the utmost resistance, but that the jury must be satisfied that there was no consent during any part of the act, and that the degree of resist- ance was an essential matter for them to consider in determining whether there was an honest and real want of consent. Mr. Bishop in his work on Criminal Law (vol. 2, § 1122) says that it is plain that in the ordinary case where a woman is awake, of mature years, of sound mind and not in fear, a failure to oppose the carnal act is consent, and though she objects verbally, if she makes no outcry and no resistance, she by her conduct consents, and the carnal act is not rape in the man; that the will of the woman must oppose the act, and that any intimation favoring it is fatal lo the prosecution. He, however, disapproves the doc- trine as to resistance affirmed in People v. Dohrhig, 59 N. Y. 374, 17 Am. Rep. 349, and says that the text of the law, and the bet- ter judicial doctrines require only that the case shall be one in which the woman did not consent; her resistance however, must not be a mere pretense, but in good faith. The text of the law referred to by him is the Statute of Westminster II. (13th ed. 1) chap. 34, A. D. 1285, which he gives in § 1111, as follows: "If a man from henceforth do ravish a woman, married, maid, or other, where she did not consent, neither before nor after, he shall have judgment of life and of member. And likewise where a man ravisheth a woman, married, lady, damsel, or other, with force, although she consent after, he shall have judgment as before is said (that is of life and member) if he be attainted at the king's suit, and there the king shall have the suit." Ilollis v. State, 27 Fla. 387. If consent in any degree at any time of the occasion be yielded by the female, the crime is not consummated; but the yielding to overpowering force may be submission and not consent. Peg. v. Fletcher, Bell, C. C. 63, 8 Cox, C. C. 131, 5 Jur. 1>. S. 179. The offense requires of her the utmost reluctance, and the utmost resistance on her part. People v. Morrison, 1 Bark. Crim. Rep. 625; People v. Quln, 50 Barb. 128; People v. Dohr- RAPE. 815 ing, 59 K Y. 374, 17 Am. Eep. 349. This rule is to be uni- formly observed in cases of this character. But what is such resistance, has relation to the circumstances attending the trans- action. If she was overpowered by force, and was unable, for want of strength, to actively resist any longer, or if such resist- ance was absolutely useless, the crime may have been committed. Beg. v. Ilallet, 9 Car. & P. 748; Don Moran v. People, 25 Mich. 356, 12 Am. Eep. 283; Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856. To support the charge of the crime in question, assuming that the prosecutrix was conscious and had possession of her mental and physicial powers, it was necessary that she should resist to the extent of her ability, and be overcome by the physical force of the defendant, unless she was by threats terrified into a submission,, or was in a place and so situated that resistance would have been useless. People v. Dohrlng, 59 K Y. 374, 17 Am. Eep. 349; Oleson v. State, 11 Neb. 276, 38 Am. Eep. 366. In such cases, although the woman never said "yes," nay more, although she constantly said "no," and kept up a decent show of resistance to the last, it may still be that she more than half con- sented to the ravishment. Her negative may have been so irreso- lute and undecided, and she may have made such feeble fight as was calculated to encourage, rather than repel the attack. And yet, a sense of shame, arising either from an apprehension of the consequences which may follow the illicit connection, or from the fact that the matter has already been known to others, may stimu- late the woman to call that a rape, which was in truth a sin of a much less odious character. And when once she has given the transaction a name, she has no alternative but to confess herself false, as well as guilty, or to go into court and arraign the sup- posed offender. And then, as there was no express consent, she is enabled to swear to the force without any such great stretch <>| conscience as would be necessary where the whole story was a tissue of falsehood from beginning to end. ( !ases of this charac- ter do not call for any relaxation of the rules of evidence for the purpose of supporting the accusation. On the contrary, courts and juries cannot well be too cautious in scrutinizing the testi- mony of the complaining witness, and guarding themselves against the influence of those indignant feelings which are so naturally excited by the enormity of the alleged offense. Tay lory. State,!!! Ind. 279. 816 LAW OF EVIDENCE IN CRIMINAL* CASES. § 519. What Must he Shown. — "Sexual penetration" can mean nothing but the piercing into the distinctive organ of sex. Commissioners on Revision [ed. of 18G5], § 321; N. Y. Penal Code, § 280; 2 Rev. Stat. 735. Where there is absolutely no proof of "sexual penetration" — of a rape accomplished, at most there is only proof of an attempt. Reg. v. McRue, 8 Car. & P. 641; Guy, Forensic Medicine [1st Am. ed.], with notes by Lee, 65; Roscoe, Crim. Ev. [10th ed.] 902; Beck, Medical Jurispru- dence, 53. In the United States proof of the slightest penetration without' emission has always been regarded as sufficient. Stats v. Har- grove, 65 N. C. 4:66; Waller v. State, 40 Ala. 325; Com. v. Thomas, 1 Ya. Cas. 307; State v. Sullivan, Add. Rep. 143; 1 Swin. Jud. Reg. 98; 1 Hale, P. C. 628 and note; Taylor, Medical Jurisprudence (7th Am. ed.) 701; Ogston, Lect. Medical Jurispru- dence, 90; Beck, Medical Jurisprudence, 229, 223. The essence of the crime is not the begetting of a child, nor the physical injury inflicted, but the violence done to the feelings and person of the sufferer and to her sense of honor and virtue. People v. Sulli- van, supra, 1 Barb. Crim. L. [3d ed.] 77; 1 Swin. Jud. Reg. 98. No form of words is necessary to prove penetration, the proof, therefore, can be inferred from circumstances apart from the state- ment of the party injured. People v. Crowley, 102 N. Y. 234; Whart, Am. Crim. L. § 555. Nothing is better established than that the prosecutrix, in trials of this nature, may testify as to what she did or said after the commission of the offense. In the language of Sir William Ev- ans, 2 Pothier, Ev. 289 : "Upon accusations for rape, for the forbearance to mention the circumstances for a considerable length of time is, in itself, a rea- son for imputing fabrication, unless repelled by other considera- tions, the disclosure made upon the first proper opportunity after iN commission, and the apparent state of mind of the party who has suffered the injury, are always regarded as very material; and the evidence of them is certainly admitted without objection." The text-ln >(»ks speak thus : "It must appear that the offense was committed without the consent of the woman, but it is no excuse that she yielded at last to the violence, if her consent was forced from her by fear of death, or by duress." Roscoe, Crim. Ev. (6th London & 6th Am. ed.) 806; 1 East, P. C. p. 444, §7. RAPE. 817 It is an extreme which they put, that shall be no excuse. So in Viner it is laid down, that a woman cannot be ravished by one man without some extraordinary circumstances of force. 1 8 Yin. Abr. Rape, p. 155, pi. 11. In People v. Abbot, 19 Wend. 192, Cowen, ./., says : "Any fact tending to the inference that there was not the utmost reluctance and the utmost resistance, is always received." Why, if the jury are not to inquire whether there were the utmost reluctance and the utmost resistance ? This say- ing lias been cited with approval in more than one instance. People v. Morrison, 1 Park. Crim. Rep. 625; People v. Quin, 50 Barb. 128; Reynolds v. People, 41 How. Pr. 179. Certainly, if a female, apprehending the purpose of a man to be that of having carnal knowledge of her person, and remaining conscious does not use all her own powers of resistance and de- fense, and all her powers of calling others to her aid, and does yield before being overcome by greater force, or by fear, or being surrounded by hostile numbers, a jury may infer that, at some time in the course of the act, it was not against her will. Our statutes provide that : '"In prosecutions for the offense of rape, proof of penetration shall bo sufficient evidence of the com- mission of the offense." Under this statute, however it may have been at common law. the slightest penetration of the genital or- gan of the male into that of the female is sufficient, other ele- ments of the crime being present, to establish guilt. Brauer v. State, 25 Wis. 413; Stat< v. Tarr, 28 Iowa. 397; Bishop, Statutory Crimes. § 488. In commenting upon some of the later case? the authors of a recent work on medical jurisprudence justly say: "In our opin- ion this is not only good law, but common sense. That a scoun- drel who attempts the chastity of a child or a young girl should escape punishment merely because her youth, or the imperfect development or narrowness of the parts prevent his fully consum- mating the crime, appears to us as undesirable as it would be unjust." Woodman A: Tidy. Forensic Medicine A: Toxicology, 640. '•The jury," says Mr. Bishop, "may infer the penetration from circumstances, without direct proof." Bishop, Statutory Crimes, 8 488. Discussing the same question, the supreme courl of Lowa said: "Nor is the prosecution bound to .-how the fad of actual penetration by the prosecutrix herself." Stab v. Tarr, supra. 52 6 818 LAW OF EVIDENCE IN CRIMINAL CASES. § 520. Reputation of the Prosecutrix for Chastity. — One of the most serious contentions that vex the appellate tribunal in cases of this character, arises from the attempt to prove the gen- eral reputation of the prosecutrix for chastity, before her charac- ter has been attacked. The general rule undoubtedly is, that evidence to sustain a witness whose character or credibility has not been attacked by the opposite party is inadmissible, the char- acter being no part of the res gestm; but the strenuous argument in these cases is to the effect, that there is a well recognized ex- ception to this rule in cases of rape or assault with intent to com- mit rape. In such cases, the general character of the prosecutrix for chastity being involved, it may be sustained, whether attacked or not. Upon this precise point the authorities are few, and they are not agreed. In State v. De Wolf, S Conn. 93, 20 Am. Dec. 90,. evidence to prove the general character of the prosecutrix for truth to be good, though not impeached, was admitted by the trial court, and it was said by the appellate court that it would not be going too far, perhaps, to say that the general character of the witness, who is the victim of the outrage, in prosecutions for rape may always be shown. The case, however, was disposed of on other grounds, and the point was not decided. In Turney v. State, S Smedes & M. 101, decided in 1847,. Thacker, J., from whose opinion on this point there seems to have been no dissent, said : "The party ravished is a competent wit- ness to prove the fact, but the credibility of her testimony must be left to the jury. It is legitimate to support her credibility by evidence of her good fame, or to attack it by evidence of her evil fame." "Such evidence," he added "tends to show, that the con- nection with the woman was had against or with her consent." This was all that was said upon the point, and no reference wa& made to the case of People v. Hulse, presently to be mentioned. The only authority referred to is 4 Bl. Com. 213, where the author adopting the language of Sir Matthew Hale in his Pleas of the Crown, as do most of the text-writers on the subject, said : "The party ravished may give evidence upon oath, and is in law a com- petent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the cir- cumstances of fact that concur in that testimony. For instance, if the witness be of good fame, if she presently discovered the RAPE. 819 offense, and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances which give greater probability to her evidence." See also East, P. C. 445; 1 Russell, Crimes, 502; 2 Whart. Am. Crim. L. (7th ed.) § 1149; 3 Greenl. Ev. § 212. On the other hand, in People v. Iluhe, 3 Hill, 309, decided in 1842, the supreme court of New York, composed of Nelson, Ch. J., and Bronson and Cowen, use as her excitement would admit, she stated the facts to the police captain. Upon these facts defendant's counsel requested the court to charge that "if the jury believe the prosecuting wit- ness did not make prompt disclosure of the alleged wrong, it is a circumstance against her, casting a great discredit on her testi- mony, and tends strongly to disprove the truth of the accusation. 1 ' This the court refused to charge, and it was held, conceding the proposition to be entirely accurate, it was an abstract one, as there was no ground for saying that the disclosure was not sufficiently prompt, and that it was not error, therefore, to refuse so to charge. Church, Ch. ./., writing the opinion, said : "The proposition (which the court was requested to charge) is, doubtless, substan- tially correct, although it is quite general and somewhat vague. Any considerable delay on the part of a prosecutrix to make com- plaint of the outrage constituting the crime of rape, is a circum- stance of more or less weight, depending upon the other surrounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not discredit the witness. A want of suitable opportunity, or fear may some- times excuse or justify a delay. There can he no iron rule on the 830 LAW OF EVIDENCE IN CRIMINAL CASES. subject. The law expects and requires that it should be prompt; but there is, and can be, no particular time specified. The rule is founded upon the laws of human nature, which induce a female thus outraged to complain at the first opportunity. Such is the natural impulse of an honest female." In Connecticut a more liberal rule as to disclosures made by a prosecutrix has been adopted than prevails in some other states. State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90; State v. Byrne, 17 Conn. 465. There it may be proved, not only that she made disclosures of the crime, but the details of the crime as she disclosed them may also be proved. In the two cases cited the disclosures were made after a much longer time than in. any other case which has come to our attention. In Ohio, the immediateness of the complaint is essential to its admissibility. Hornbeck v. State, 35 Ohio St. 277, 35 Am. Rep. 608. In Johnson v. State, 17 Ohio, 593, it is said: "There can be no doubt, that in a case of rape the declarations of the injured female, made immediately or soon after the injury inflicted are competent testimony, provided the female herself has first been examined; competent not for the purpose of proving the commission of the offense, but as corroborative of, or contra- dictory to her statements made in court. If these declara- tions are in accordance with the testimony given in court, they tend to strengthen and give effect to that testimony, if against it r the testimony is destroyed. If such testimony were to be entirely excluded when offered on the part of the prosecution, it would be extremely difficult to convict in any case. For, as a general rule it would be dangerous to convict, unless immediate complaint was made by the female, to her friends or others." The same doctrine has recently been announced in Michigan, People v. G Am. Rep. 740, 26 Am. Rep. '■'>'■'>. note; Com. v. Bakeman, 131 Mass. 577, II Am. Rep. 248; State v. Crowner, 56 Mo. 147; State v. Cutshall, 109 N. C. 764; Smith v. State, 39 Ala. 554. § 533. Elements of the Crime. — The elements of the crime are, 1st, that there shall bo an unlawful carnal connection; 2d, that the guilty party shall at the time; be married; 3d, that he or she shall willingly commit the offense; tor a woman who has be< n ravished against her will is not guilty of adultery. 3 Domat, Supp. du Droit Public-, title L0, note L3; I Bouvier, Law Diet, 7*'>. 534. Presumptive Evidence may be Sufficient. — Although presumptive evidence alone is sufficienl to establish the lad of adulterous intercourse, the circumstances must lead to it, not only 847 $48 LAW OF EVIDENCE IN CRIMINAL CASES. by fair inference bait as a necessary conclusion; appearances equally capable of two interpretations, one an innocent one, will not justify the presumption of guilt. Evidence simply showing full and frequent opportunity for illicit, carnal intercourse, is not alone sufficient to found an inference that the criminal act was committed. General cohabitation alone, i. e., the simple living or being together all or most of the time in the same household, apart from suspicious circumstances characterizing it, is not sufficient to warrant an inference of adultery; there must be some accompanying circumstances fitted fairly to induce a belief that it was not for a proper purpose. Pollock v. Pollock, 71 JN". Y. 137. § 535. Positive Proof never Required. — In almost every case of adultery, the fact is inferred from circumstances that lead to it by fair inferences as a necessary conclusion. Pos- itive proof of the fact is not required, and from the nature of the offense, not easily made. Circumstances that lead a rational and just man to a conclusion of guilt beyond a reason- able doubt, are sufficient to authorize a conviction. "A married man going into a known brothel raises a suspicion of adultery, to be rebutted only by the best evidence. His going there, and re- maining alone for some time in a room with a common prostitute, is sufficient proof of the crime. The circumstance of a woman going to such a place with a man furnishes proof of adultery." 2 Greenl. Ev. p. 31, § 41. The same author, in page 32, section 11, states that the rule has been elsewhere more briefly stated, to require that these be such proximate circumstances proven, as by former decisions, or in their own nature and tendency, satisfy the legal judgment of the court that the criminal act has been com- mitted; and, therefore, it has been held that general cohabitation excluded the necessity of proof of particular facts. Ordinarily, it is not necessary to prove the act to have been committed at any particular or certain time or place. It will be sufficient if the cir- cumstances are such as to lead the court, proceeding with every necessary caution, to this conclusion, which it has often drawn between persons living in the same house, though not seen in the same bed, or in any equivocal situation. " The adulterous dis- position of the parties being once established, the crime may be inferred from their afterward being discovered together in the bedchamber, under circumstances authorizing •such inference." The proof made in this case was not positive proof of the fact, ADULTERY. 849 but only of such facts as from which the guilt may be inferred. Being in bed together but once raises a presumption of guilt, but the guilt might possibly be disproved by a proper explanation of the circumstances; but being in bed together at various and different times cannot be satisfactorily explained consistently with innocence, and tends to satisfy the mind of the guilt of the accused beyond a reasonable doubt. From the nature of the charge, and the evidence reasonably to be expected to sustain it, latitude in the investigation must be allowed. Baiter v. United State*, 1 Pinney, fill. Adultery may be established by the evidence of parties who saw the act committed, or by proof of facts from which inter- course may be inferred. On account of the secret character of the offense, the former, direct proof, cannot be expected; proof that the parties were seen in the same bed, or occupied at night the same room in which there was but one bed, or lived together as if husbanof and wife (but not mere fact of a marriage ceremony between them) raises an almost irrebuttable presumption of their intercourse; so a wife's adultery may be proved by the fact of the birth of a child without access of her husband, or a husband's by his having a venereal disease too long after marriage to have been caused before. The circumstances from which adultery may be inferred must be such as to satisfy a reasonable and just man beyond reasonable doubt. Adultery may be proved by a pre- ponderance of evidence; all doubt need not be excluded, though of course it is not established by facts which are equally consistent with innocence. The proof must be clear, positive, satisfactory. Two things should be proved: (1) a criminal attachment between the parties, and a mutual intention to indulge in intercourse; and (2) opportunities to so indulge. If the intention of both is proved, and the opportunities are ample, adultery will be pre- sumed. Opportunities alone are not enough, nor are opportu- nities with mere suspicious circumstances; nor is mere scandal, or suspicion; but a combination of suspicious facts may lead to an inference of guilt when separately they would not. Stewart, Marriage & Div. § 246, citing the following American cases: Eoans v. Evans, 41 Cal. 103, 108; Larrison v. Larrison, 20 K J. Eq. 100, 101; Burchet v. Burchet, Wright (Ohio) 101; Pollock v. Pollock, 71 K Y. 137, 141; Mosser v. Mosser, 29 Ala. 313, 317; Inskeep v. Inskeep, 5 Iowa, 204, 208; Freeman v. 54 850 LAW OF EVIDENCE IN CRIMINAL CASES. Freeman, 31 Wis. 235, 240; Van Epps v. Van Epps, 6 Barb. 320, 323; State v. Way, 6 Yt. 311; Scroggins v. Scroggins, Wright (Ohio) 212; Langstqf v. Zangstqf, Wright (Ohio) 148, 149^ Masten v. Masten, 15 N. H. 159, 161; Reemie v. Reemie, 4 Mass. 586; Wilson v. Wilson, Wright (Ohio) 128, 129; Com. v. Shepherd, 6 Binn. 283, 286, 6 Am. Dec. 449; Johnson v. JbA/i- son, 14 Wend. 637, 642; Worth v. iVoWA, 5 Mass. 320; Mount v. J/btm*, 15 N. J. Eq. 162, 163, 82 Am. Dec. 276; Cook v. Cook, 32 K J. Eq. 475, 477, 478; Thayer v. Thayer, 101 Mass. Ill, 113, 114, 100 Am. Dec. 110; Berckmans v. Berckmans, 16 N. J. Eq. 122, 140; Mulock v. Mulock, 1 Edw. Ch. 14; Ferguson v. Ferguson, 3 Sandf . 307; 6"«/'^r v. Carter, 62 111. 439, 449; Smith v. £?m'£A, 5 Or. 186-188; Chestnut v. Chestnut, 88 111. 548, 551; IFA^itfc/k v. Whitenack, 36 N. J. Eq. 474, 477; Freeman v. Free- man, 31 Wis. 235, 241; Jeter v. Jeter, 36 Ala. 391; Clear v. Reasor, 29 Iowa, 327; JfeAZj>jon. 88 X. C. 646; Lawson v. State, 20 Ala. 66, 56 Am. Dec. 182> Richardson v. State, 34 Tex. 142; McClung v. McClwng, 4<> Mich. 493; Boddy v. Boddy, 30 L .1. Mat. -i:\\ State v. Witham, 72 Me. 531; State v. Bridgman, 49 Yt. 202, 24 Am. Rep. 124; Thayer v. Thayer, Ml Mass. Ill, LOO Am. Dec. lb'; State v. Way, 5 Neb. 283; Pollock v. Pollock, 71 N. Y. 137; State v. Waller, 80 X. (J. 401. Sb'2 LAW OF EVIDENCE IN CRIMINAL CASES. § 53S. Admissions of Marriage Competent. — Where a man is on trial for adultery, the allegation of the indictment that he is a married man may be proved by evidence of his own admissions to that effect. Upon this question there is some conflict of author- ity. In New York {People v. Humphrey, 7 Johns. 314) and in Connecticut {State v. Roswell, 6 Conn. 440) upon criminal charges involving the same point, it has been hold that the marriage can- not be so proved. In Massachusetts, in an indictment against two persons for lascivious cohabitation, one of them being a married woman, it was held that her admission, twelve years before, fol- lowed by cohabitation and the birth of children, was insufficient evidence of the marriage {Com. v. Littlejohn, 15 Mass. 163) and according to a citation in Cook v. State, 11 Ga. 53, 50 Am. Dec. 410, of a case to which we have not had access, a similar decision has been made in one other state Of these cases, those which we have examined, in so far as they rest upon authority, rest mainly upon the authority of Morris v. Miller, 4 Burr. 2057. This was an action for criminal conversa- tion, in which the evidence that the woman alleged to have been debauched was the plaintiff's wife, was the declaration of the de- fendant to his landlord that she was the plaintiff's wife, and that he had committed adultery with her. The opinion of the court was delivered by Lord Mansfield, who said : "We are all clearly of the opinion that in this kind of action, an action for criminal conversation with the plaintiff's wife, there must be evidence of a marriage in fact; acknowledgment, cohabitation and reputation are not sufficient to maintain this action." And he also said : "In prosecutions for bigamy, a marriage in fact must be proved." § 539. Adulterous Disposition may be Shown. — In proof of an unlawful sexual intercourse, the adulterous disposition of the parties at the time may be shown. To this end, the anteced- ent and subsecpient conduct and declarations of the parties, if it has a tendency to prove the fact, is admissible. It is a matter of common observation, that a criminal intimacy, is usually of grad- ual development and when established is likely to continue be- tween the parties. The act itself is the strongest evidence of the existence of the disposition; and it has been recently held that, for the purpose of proving it, an act of adultery at another time may be shown. Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec. Hi). It has long been held that prior acts of familiarity were ADULTERY. 853 admissible to render it not improbable that the act might have occurred. Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420. The only limit to this description of evidence is, that it must be sufficiently near in point of time, and sufficiently significant in character, to afford an inference of the moral condition to be proved. And this must be fixed to a greater extent by the dis- cretion of the judge who tries the case. Beers v. Jackman, 103 .Mass. 192. k 'The letters of the respondent to the complainant which were admitted in evidence to show a suspicious intimacy between them which was necessarily the result of their previous acquaintance and relations; they contain expressions which could hardly be used between persons whose relations were innocent, and which fairly lead to the inference that the parties had been guilty of criminal intercourse. They were therefore admissible, within the discre- tion of the presiding judge." Sullivan v. llarLij, 147 Mass. 3S7. There has been some difference of opinion as to the extent to which evidence of improper familiarities, other than that charged in the indictment is admissible. On the one hand, it has been said that in all cases, whether civil or criminal, involving a charge of illicit intercourse within a limited period may be adduced in connection with, and in explanation of, acts of a similar character occurring within that period, although such former acts would be inadmissible as independent testimony, and if treated as an offense, would be barred by the statute of limitations. In point of fact, as evidence of adultery is almost always circumstantial, and as even when it is direct, corroborative evidence is admissible to support it, it is difficult to see how evidence of prior improper familiarities can be rejected. On the other hand, evidence of improper conduct by the defendant, with other parties than those charged in the indictment, is clearly inadmissible, and evidence of guilt with the same part}' subsequent to the finding of the indict- ment is inadmissible unless to corroborate facts proved to have taken place before. And it is plain that evidence of a propensity to commit the particular offense is inadmissible. Suspicion.- of the wife, and rumors in the neighborhood, are both inadmissible. Wliart. Am. Crim. L. § 2o53. § 540. Birth of Child us Evidence of. — Adultery of the wife may be proved by the birth of a child, and non-access of tin; hus- 854 LAW OF EVIDENCE IN CRIMINAL CASES. band, lie being out of the realm; and if adultery is alleged to have been continued, for many years, and with divers particular indi- viduals, it is sufficient to prove a few of the facts, with identity of her person. Adultery of the husband, on the other hand, may be proved by habits of adulterous intercourse, and by the birth, maintenance, and acknowledgment of a child. 2 Greenl. Ev. § 44, citing Rich a prison v. Richardson, 1 Hagg. Eccl. Rep. 6; D'Agut- lar v. D'Aguilar, 1 Hagg. Eccl. Rep. 777, note; Astley v. Astley, 1 Hagg. Eccl. Rep. 719, 720; Loveden v. Loveden, 2 Hagg. Consist. Rep. 2, 4; Kenrick v. Kenrick, 4 Hagg. Eccl. Rep. 114, 124, 132, Eliot v. Eliot, cited in 1 Hagg. Consist. Rep. 302; Durant v. Durant, 1 Hagg. Eccl. Rep. 767; Bishop, Marriage & Div. § 427; et seg. § 541. Reputation for Chastity maybe Shown. — In adultery, the chastity of a woman previous to the time of the commission of the alleged offense is not necessarily in issue, and evidence of previous acts of sexual intercourse with a man named (not the accused) is not admissible. People v. Knapp, 42 Mich. 267, 36 Am. Rep. 438. But evidence of other acts of adultery between the parties, commencing about the time of the commission of the alleged offense, is admissible. State v. Bridgman, 49 Yt. 202, 24 Am. Rep. 124; State v. Witham, 72 Me. 531. And so is evidence tending to show subsequent illicit intercourse between them. Baker v. United States, 1 Pinney, 641; Com., v. Nichols, 114 Mass. 285, 19 Am. Rep. 346. And evidence of the reputation for chastity, of the woman with whom the offense is alleged to have been committed is admissible. Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378; People v. Brewer, 27 Mich. 134, note. The presumptions of law should be in accordance with the gen- eral fact; and whenever it shall be true bf any country, that the women, as a general fact, are not chaste, the foundations of civil society will be wholly broken up. Fortunately in our own coun- try an unchaste female is comparatively a rare exception to the general rule; and whoever relies upon the existence of the excep- tion in a particular case should be required to prove it. Crozier v. People, 1 Park. Crim. Rep. 457; People v. Kenyon, 5 Park. Crim. Rep. 286; Kenyon v. People, 26 X. Y. 204, 84 Am. Dec. 177; Andre v. State, 5 Iowa, 398, 68 Am. Dec 708; People v. MUlspaugh, 11 Mich. 278. The case of West v. State, 1 Wis. 217, which seems to hold otherwise, was decided upon the phrase- ADULTERY. 855 ology of the Wisconsin statute, which was thought to make the "previous chaste character" of the person seduced an ingredient in the offense, to be made out by proofs. The Michigan statute is very simple, and merely provides that, " if any man shall seduce and debauch an unmarried woman he shall be punished," etc. Comp.L. 1871, § 7697; People v. Brewer, 27 Mich. 131. A person's character for chastity, when it is relevant, is not shielded from inquiry. It is a disagreeable subject of investiga- tion, but the law makes no discrimination between subjects that are agreeable and those that are disagreeable. Wood v. Gale, 10 JN". H. 217, 34 Am. Dec. 150. Sexual crimes are not excepted, as a peculiar class, from the operation of the general rule that admits relevant evidence. On an indictment for adultery, evi- dence of previous improper familiarities is competent. State v. Wallace, 9 IS". H. 515; State v. Marvin, 35 N. H. 22; Com. v. Mt rriam, 11 Pick. 518, 25 Am. Dec. 420; Com. v. Lahey, 11 Gray, 91. In Com. v. Ilorton, 2 Gray, 351, and Com. v. Thrasher, 11 Gray, 450, it was held that although improper familiarities were competent, proof of actual adultery (other than that charged) committed by the same parties with each other was incompetent, but in Thayer v. Thayer, 101 Mass. Ill, 113, 111, 100 Am. Dec. 110, the absurdity of that distinction was acknowledged, and the two cases which established it were overruled. The court says : "When adulterous disposition is shown to exist between the par- ties at the time of the alleged act, then mere opportunity, with comparatively slight circumstances showing guilt, will be sufficient to justify the inference that criminal intercourse has actually taken place. The intent and disposition of the parties towards each other must give character to their relations, and can only be ascer- tained, as all moral qualities are, from the acts and declarations of the parties. It is true that the fact to be proved is the existence of a criminal disposition at the time of the act charged; but the indications by which it is proved may extend and ordinarily do extend over a period of time both anterior and subsequent to it. The rules which govern human conduct, and which are known to common observation and experience, are to be applied in these cases as in all other investigations of fact. . . . By the appli- cation of the rule laid down in these case- {Com. v. Horton, 2 Gray, 354, and Com. v. Thrasher, 11 Gray, 450) evidence tending to establish an independent crime is to be rejected, although ail 856 LAW OF EVIDENCE IN CRIMINAL CASES. acts which are only acts of irrmroper familiarity are to be admit- ted in proof. There is no sound distinction to be thus drawn. There is no difference between acts of familiarity and actual adultery committed, when offered for the purpose indicated, except in the additional weight and significance of the latter fact. The concurrent adulterous disposition of the defendant and the particeps criminis cannot be shown by stronger evidence than the criminal act itself." State v.Zapaye, 57 N. H. 245, 24 Am. Kep. 69. CHAPTER LXI. BASTARDY. § 542. The Term " Bastard" Defined. 543. Rule as to Children Born in Wedlock. 544. Unchaste Conduct of the Mother may he SJiown. 545. Evidence of " Non-access" is Competent. 54G. Mother of Bastard may Prove Illicit Intercourse. 547. When Presumption of legitimacy will Govern. 548. Resemblance as a Test of Parentage. 549. Charge may he Sustained by Preponderance of Testimony. §542. The Term "Bastard" Defined.— By the statutes of New York, a child is deemed a bastard who is begotten and born out of lawful matrimony; or while the husband of its mother continued absent out of the state, for one whole year previous to the birth of the child, separate from its mother, and leaving her during that time continuing and residing in the state; or during the separation of its mother from her husband, pursuant to a decree of any court of competent authority. 1 Rev. Stat, part 1. chap. 20, title 6, § 1; 1 Stat, at L. 595. § 543. Rule as to Children Born in Wedlock.— In some others of the American states, as in Pennsylvania, Virginia and North Carolina, a child born during marriage may be proved to be a bastard — first, by evidence of the husband's inability; second, by proof of the non-access of the husband to his wife; third, by proof that the child was born out of due time; or, fourth, by proof that the child was born during the wife's open cohabitation with another man, and such child was considered illegitimate by the family. Com. v. Strich /•, 1 Browne, App. 47; Coin. v. Wentz, 1 Ashm. 269; State v. Pettaway, 10 N. C. 623; Howies v. Bing- ham, 2 Munf. 442, 5 Am. Dec. 497. As a general thing, it would seem that the law recognizes a child as legitimate, begotten before but born after marriage, on the ground that a man marrying a woman in an advanced state of pregnancy thereby admits the child afterward born to be hisown, and in some .-tales this is conclusive upon the question of legiti- macy, while in others it is not. But in no case is it regarded as 857 858 LAW OF EVIDENCE IN CRIMINAL CASES. conclusive that a child begotten in lawful wedlock is legitimate. The presumption of law is in favor of legitimacy in such cases, but as a general rule, such presumption may be rebutted by evi- dence. Morris v. Dames, 3 Car. & P. 215; Reg. v. Mansfield, 1 Q. B. 618; Stegall v. Stegall, 2 Brock, 250. By the statutes of Maine, Vermont, Massachusetts, Connecticut, Ohio, Illinois, Indiana, Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Kentucky and Missouri, and possibly some •other states, it is provided, that when the parents of an illegitimate child intermarry after the birth of the child, and the father treats it as a legitimate child, the child shall thereby be adopted as such, and shall be deemed for all purposes legitimate from the time of its birth. Vide statutes of the several states. This is the law in France and in most other European nations, and efforts have been made to get such a provision into the code of New York. There would seem to be justice and mercy in the rule, and it will prob- ably soon be the law in all the American states. Tyler, Infancy f the domicil; and therefore any such marriage, valid by the law of the place where it is contracted, is valid everywhere to all intents and effects, civil or criminal, including the settlement S6i LAW OF EVIDENCE IN CRIMINAL CASES. of the wife and children, her right of dower, and their legitimacy and capacity, to inherit the father's real estate. Parsons, Ch. J., in Greenwood v. Curtis, 6 Mass. 358, 377-379; Medway v. Needham, 16 Mass. 157; West Caml/ridge v. Lex- ington, 1 Pick. 506; Putnam v. Putnam, 8 Pick. 433; Corn. v. Lane, 113 Mass. 458; Bullock v. Bullock, 122 Mass. 3; Milliken v. Pratt, 125 Mass. 380, 381. Under the provisions of the celebrated "Code Napoleon," enacted in 1804, and substantially adopted in many of the American states, humane regulations as to legitimacy will be found established. No. 331 is in the following lan- guage: Children born out of wedlock, other than such as are the fruit of an incestu- ous or adulterous intercourse, may be legitimated by the subsequent marriage of their father and mother, whenever the latter shall have legally acknowledged them before their marriage, or shall have recognized them in the act itself of celebration. The germ of this enactment dates back to the Roman law. A natural son born of a free woman, with whom marriage is not prohibited, will become subject to the power of the father as soon as the marriage instru- ments are drawn as the Constitution directs; which allows the same benefit to those who are born before marriage as to those who are born subsequent thereto. Cooper, Justin. Be Legitimatione, lib. 1, title 10, § 13. A charge of illegitimacy must be supported by direct and irrefutable evi- dence. It must be conclusively proved. Caujolle v. Feme, 23 N. Y. 90. As to the marriage at common law, and the evidence tending to prove it, see Hebblethwaile v. Hepworth, 98 111. 132; Port v. Port, 70 111. 486; Caujolle v. Ferrie, 23 N. Y. 107; 2 Greenl. Ev. § 4G2; 1 Bishop, Mar. & Div. §§ 13, 457, note, 1521; Stoltz v. Doering, 112 111. 234. The law is unwilling to bastardize children, and throws the proof on the party who alleges illegitimacy; and, in the absence of evidence to the contrary, a child, eo nomine, is therefore a legitimate child. Fielder v. Fielder, 2 Hagg. Consist. Rep. 197, 4 Eng. Eccl. Rep. 527; Wilkinson v. Adam, 1 Ves. & B. 422. In Yowles v. Young, 13 Yes. Jr. 145, Lord Chancellor Erskine said, in refer- ence to proof of an actual marriage, that the evidence, especially in the case of obscure families, must be very slight. As sustaining the same rule, may also •be cited Starr v. Peck, 1 Hill, 270; and the qualification of that case, as made in Cheney v. Arnold, 15 N. Y. 345, does not weaken its authority on the ques- tion of the duty of a court to presume matrimony, when the parties have cohabited, and there are circumstances from which a contract may be inferred. Caujolle v. Ferrie, 23 N. Y. 90. At common law a bastard has no right of inheritance. In the eyes of the law, bastards are not regarded as children for civil purposes. 1 Bl. Com. p. 458, in discussing the rights of bastards, says: " The rights are very few, being only such as he can acquire, for he can inherit nothing, being the son of uobody, and sometimes called filius nullius, sometimes filius populi. In Black- 'sters definition than those given by the legal lexicographers." A woman cannot be said to be "seduced" who at the time of the alleged seduction was leading a lewd and lascivious life. Pat- terson v. Hay den, 3 L. R. A. 520, 17 Or. 238. § 551. Nature of the Proof.— The jury may find the fact of seduction upon the uncorroborated testimony of the prosecuting witness, and corroboration as to the promise is satisfied by proof of the circumstances usually attending an engagement of marriage. Mo. Rev. Stat. § 1912; State v. Brassfield, 81 Mo. 152, 51 Am. Rep. 234, and cases cited; Kenyan v. People, 26 N. Y. 203, 84 Am. Dec. 177; Boyce v. People, 55 N. Y. 044. Evidence of general reputation of the girl's want of chastity is inadmissible. Previous chaste character, in this statute, means actual personal virtue, not reputation; and can he impeached only by specific proof of lewdness. Kenyon v. People, L'O N. Y. 203- 207, 5 Park. Crim. Rep. 254 285,84 Am. Dec. 177; Carpenter v. People, 8 lr,iv\>. 603-607; Kauffinan v. People, 11 Hun, 82. Although the female has previously fallen from virtue, yet if 867 868 LAW OF EVIDENCE IN CRIMINAL CASES. she lias subsequently reformed and become chaste, she may be the subject of the offense declared in the statute. Carpenter v. Peo- pl , 8 Barb. 603. The crime is a most atrocious one, and one which most naturally tends to enlist the sympathies of all men, and of course of jurors, in favor of the victim. In such cases, while administering the law with perfect fairness, courts must be extremely careful that no evidence of a tendency to excite or influence the resentment of jurors, and which does not tend to support the evidence of the prosecutrix, or to connect the defendant with the commission of the crime, should be permitted to go to the jury. People v. A- wrney, 110 N. Y. 188. It was necessary to support the prosecutrix by other evidence than her own as to the promise of marriage and the intercourse. Kenyan v. People, 26 X. Y. 207, 5 Park. Crim. Rep. 254, 81 Am. Dec. 177; People v. /Ann:, 8 N. Y. Legal Obs. 139; Boyce v. Peo- j> ! > , 55 N. Y. 015; People v. Haynes, 55 Barb. 450; State v. Craw- ford. 34 Iowa, 40; Com. v. Walton, 2 Brewst. 187; People v. Zei- /•. 6 Park. Crim. Rep. 356; Armstrong v. People, 70 N". Y. 38. In trials for seduction under promise of marriage, the evidence of the woman as to such promise must be corroborated to the same extent required of a principal witness in perjury. From these statutes it is plain to be seen that corroborating evidence is only required as to the promise of marriage, and in that respect to the extent of the principal witness in perjury. In cases of perjury, it is not required that the corroborating circumstances should be equal to a second witness. The additional evidence, it was said in State v. Heed, 57 Mo. 251, need not be such as, stand- ing by itself, would justify a conviction in a case where the testi- mony of a single witness would suffice for that purpose; but it must at least lie strongly corroborative of the testimony of the accusing witness. There must be some evidence, independent of the principal witness; any material circumstance proved by other witnesses, in confirmation of the witness who gave the direct tes- timony will be sufficient. Roscoe, Crim. Ev. (6 Am. ed.) 765. "We can, then, apply these guides to cases like the one in hand. Evidence of circumstances which usually accompany the marriage engagement will satisfy the statute as to supporting evidence, v. Brassfield, 81 Mo. 156, 51 Am. Rep. 231. That case, it is true, was overruled in State v. Patterson, 88 Mo. 88, 57 Am. DEDUCTION UNDER PROMISE OF MARRIAGE. SOU Rep. 374, in one respect, but not as to the question now under consideration. Under the provision of an act declaring that a conviction shall not be had upon the testimony of the female seduced, unsupported by other evidence, supporting evidence is only required as to the promise of marriage, and the carnal connection. As to the promise of marriage the provision is satisfied by proof of circumstances which usually attend an engagement of marriage; as to the illicit intercourse and the immediate persuasions and the inducements which led the female to consent, evidence of oppor- tunities more or less frequent and continued, and that the rela- tions of the parties were such as indicated that confidence in and affection for the accused, on the part of the female which ren- dered it possible that the act may have been done, are sufficient. The fact that the prosecutrix in her testimony limits the carnal connection to a single act, and specifies the time, does not require that the supporting evidence shall be confined to that particular time; if it covers a period including the specified time it is suffi- cient to meet the requirements of the statute, although there is no corroborative evidence as to the particular act testified to. Armstrong v. People, 70 N. Y. 38. On an indictment for seduction under promise of marriage, un- der the laws of 1848, chapter 111, — which constitutes such an act a misdemeanor, — although an express promise on the part of the defendant ought to be proved, it is not necessary that there should be proof of an express promise on the part of the person seduced, in order to support defendant's promise. A promise on her part, if necessary at all, may be inferred from circumstances. It seems, that a promise on the part of the defendant alone, is enough to sustain a conviction. On an indictment for seduction under promise of marriage, the previous chaste character of the complainant is presumed until evidence impeaching it is produced. People v. Kane, 14 Abb. Pr. 15. There must be a promise of marriage, seduction of and illicit connection with an unmarried female, who must have been ot "previous chaste character," and the indictment must be found within two years after the commission of the offense; and the prosecution cannot be sustained by the testimony of the female seduced, unsupported by other evidence. Safford v. People, 1 Park. Grim. Kep. 474. 870 LAW OK EVIDENCE IN CRIMINAL CASES. So, too, the act of illicit connection, and the immediate persua- sions and inducements, which led to the compliance, need not be proved by the evidence of third persons directly to the fact. They are to be inferred from the facts; that the man had the opportunities, more or less frequented and continued, of making the advances and the proposition; and that the relations of the parties were such, as that there was likely to be that confidence on the part of the woman in the asseverations of devotion on the part of the man, and that affection towards him personally, which would overcome the reluctance on her part, so long instilled as to have become natural, to surrender her chastity. Kenyon v. Peo- ple, 26 N. Y. 203, 84 Am. Dec. 177; Boyce v. People, 55 N. Y. 644. Circumstances of this kind vary in weight in different cases, and it is for the jury to determine their strength. But, when proof is made of the existence of them, in some degree, it cannot be said that there is no supporting evidence. A court cannot then properly direct a verdict, or discharge the defendant in the indict- ment, on the ground that no case is made for the consideration of the jury. Armstrong v. People, 70 N. Y. 44. I think the true rule is, in cases like this, when there is some evidence given by other witnesses, which supports the testimony of the prosecutrix, on the material questions in the case, the jury must determine whether she is sufficiently corroborated to war- rant a verdict of guilty. And this conclusion is in harmony with the decision in Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177; Crandall v. People, 2 Lans. 309. § 552. Previous Chastity of the Woman the Main Issue.— An important requisite to the offense charged is, that the female against whom it is alleged to have been committed, shall have been of a previously chaste character. The requisition of the statute, it is held, relates not to the reputation of the prosecutrix but to her actual condition, and requires absolute personal chastity. Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177. It is, there- fore, impossible that the offense be twice committed against the same female. If she has once consented to and willingly permitted sexual intercourse with herself, she no longer possesses that chaste character required by the statute as an essential ingredient of the offense. Accordingly where a seduction under a promise of mar- riage had taken place, four or five years before the indictment, SEDUCTION UNDER PROMISE OF MARRIAGE. 871 and the illicit intercourse and the promise of marriage had con- tinued down to within less than two years before indictment found, it was held that the offense could not have been committed within the two years limited by the statute before indictment found. Safford v. People, 1 Park. Crim. Eep. 474; Cook v. Peo- ple, 2 Thomp. & C. 406. The chastity of the woman is directly in issue in these cases {State v. Patterson, 88 Mo. 88, 57 Am. Rep. 374) and it is not the proper province of the court to determine the weight of the evidence. To overcome the presumption of previous chastity, defendant must show unchastity by a preponderance of evidence. State v. Hemm, 82 Iowa, 609. Though the law presumes that every woman is chaste and of good repute, it also presumes every one innocent of crime till proven guilty, and in prosecutions for seduction the burden is on the state to allege and prove in the first instance that the woman is of good repute. State v. McCashey, 1"4 Mo. ti44. Under indictment for seduction, where the evidence showed that the prosecutrix, at the time she yielded to the defendant, was a child a few days past the age of fourteen, and of weak mental development; that before the first act of intercourse defendant, who was a man of thirty-five, not only promised to marry her, but stated to her that many other young girls of the neighborhood were in the habit of engaging in sexual intercourse — it was error for the court to refuse to permit the fullest investigation into their subsequent relations with a view of showing whether defend- ant entered into such contract of marriage in good faith at the time, or merely to gratify his lust. State v. Hockey, 82 Iowa, 393. The court refused to charge that "the defendant has offered evidence ... of specific language and conduct on the part of the prosecutrix which, he claims, shows her to be of unchaste character at the time of the alleged seduction, and yon are instructed that it was the right of the state to introduce evidence . . rebutting" this "testimony." Held, that as the instruction fixed no consequences to the neglect of the state to introduce such evidence, it was properly refused as misleading. State v. Hemm, 82 Iowa, 609. Under an indictment for seduction, it is error to instruct that 872 LAW OF EVIDENCE IN CKIMINAL CASES. the burden of showing defendant's subsequent refusal to marry the prosecutrix is upon the state, since an offer of marriage after seduction is not a bar to the prosecution, but only an actual mar- riage. State v. Macfcey, 82 Iowa, 393. In prosecutions for seduction, it is usually required by statute that the prosecutrix should be corroborated at least as to promise of marriage. Com. v. Walton, 2 Brewst. 487; State v. Painter, 50 Iowa, 317; State v. Curran, 51 Iowa, 112. The prosecutrix also testified that the accused, to induce her to consent to his proposal, staged in substance that he never would marry a girl unless he was satisfied that she was a virgin, which he could ascertain only by her assenting to his proposition. But upon hei expressing apprehension that he would leave her if she yielded to him, he assured her, in the strongest terms, that he would marry her. The prisoner's counsel asked the court to charge in substance that, if the promise to marry was not an existing one, but an inchoate proposition depending upon the result of illicit intercourse as furnishing evidence of virtue to complete the mutuality of the contract, the case was not within the statute. The court declined, so to charge. Held (Church, Oh. «/., and Rapallo, re the jury can convict. If the corroborative evidence supports one or more, and yet fails to support all the necessary elements, such support is not given as the law requires to allow or sustain a convic- tion. See N. Y. Penal Code, § 286; People v. Plath, 100 K Y. 590, 53 Am. Eep. 236; Armstrong v. People, 70 N. Y. 38. In criminal trials where the fact proved or corroborated is consistent with innocence, it cannot be accepted as any proof of guilt. Peo- ple v. Elliott, 106 N. Y. 288; State v. Warren, 34 Iowa, 453; People v. Josselyn, 39 Cal. 398 ; People v. Williams, 29 Hun, 520. The testimony of a female seduced is sufficiently supported by proof of opportunity and confiding freedom of relations. Ann- strong v. People, 70 N. Y. 38. In all cases the sufficiency of the supporting evidence is for the jury, and it is reversible error to withdraw this question of sufficiency from their consideration. Crandall v. People, 2 Lans. 309; Armstrong v. People, 70 ]ST. Y. 44. Circumstantial evidence was always sufficient in supporting an accomplice, corroboration being required only as to the person of the accused; that is. testimony showing that the defendant was the party who committed the crime. "Whart. Crirn. Ev. § 442. In the case of an accomplice, whether evidence is sufficient is for the determination of the jury; the law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his convic- tion will not rest entirely upon the evidence of the accomplice. People v. Everhardt, 104 N. Y. 594; People v. Elliott, 106 N. 874 LAW OF EVIDENCE IN CRIMINAL CASES. Y. 288; People v. Jaehne, 103 N. Y. 182; Crandall v. People, supra; People v. Plath, 100 K Y. 594, 53 Am. Rep. 236. No corroboration is required as to previous chastity or as to the fact of being married. Armstrong v. People, supra; Kenyon v. People, 26 N". Y. 203, 81 Am. Dec. 177; Boyce v. Peop&, 55 N. Y. 641; Jenkins v. Putnam, 106 N. Y. 272. Corroboration is required as to the promise and intercourse only, and not with respect to chastity or being unmarried. Kenyon v. People and Crandall v. People, supra. Supporting evidence was required as to two matters only, to wit, the promise of marriage and carnal connection. Kenyon, v. People and Boyee v. People, supra. In prosecutions for adultery or for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties prior to or when indicating continuance of illicit relations, even subsequent to the act specifically under trial. Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec. 110; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 121; Crandall v. People, supra. The statute requires only previous chastity. N. Y. Penal Code, § 284; A r in- strong v. People, supra. The supporting evidence need not be such only as the character of the matters admits of being fur- nished. It was for the jury to say whether the supporting evi- dence was sufficient. People v. Armstrong, Crandall v. People, People v. Elliott and People v. Everhardt, supra. § 553. Distinction between Seduction and Rape. — The crime of seduction is not to be confounded with the higher and more atrocious crime of rape. The latter crime is defined to be the carnal knowledge of a woman by a man forcibly and unlaw- fully, against her will. 2 Bouvier, Law Diet, title Rape. The element of force forms a material ingredient of the offense, by which a resistance of the woman violated is overcome, or her con- sent induced by threats of personal violence, duress or fraud. For, unless the consent of the woman to the unlawful intercourse is freely and voluntarily given, the offense of rape is complete. But the word "seduction,'' when applied to the conduct of a man towards a female, is generally understood to mean the use of some influence, promise, arts, or means on his part, by which he induces the woman to surrender her chastity and virtue to his embraces. But we do not suppose that it must appear that any distinct promise was made to the female, or any subtle art or device em- ployed. It is sufficient that the means used to accomplish the SEDUCTION UNDER PROMISE OF MARRIAGE. 875 seduction, induced the female to consent to the sexual intercourse. Perhaps the motive of fear on the mind of the female is not to he •excluded — not the fear of personal violence and injury unless she consents to the connection, but the fear that the man may in some way injure her reputation or standing in society, unless she yields to his importunities. But the woman must be tempted, allured, and led astray from the path of virtue, though the violence of some means or persuasion employed by the man, until she freely con- sents to the sexual connection. But if the circumstances show that this consent was obtained by the use of force, and the woman's will was overcome by fear of personal injury, then the crime becomes one of a higher grade. Croghan v. State, "2'2 Wis. 444. Evidence is admissible that the defendant boasted to his friends that he had had illicit intercourse with the prosecutrix, as tending to show not alone the illicit connection, but also, in view of the -circumstances under which the admissions were made, the decep- tive practices by which it was brought about. State v. Hill, 91 JVIo. 4i>:;. Evidence which shows that the woman lived with her father .and bore his name, that she had received the addresses of the •defendant for more than three years, and that a marriage agree- ment existed between them when the crime was committed, is suf- ficient to warrant the jury to find that the woman is unmarried. ■State v. Heatherton, 60 Iowa, 175. § 554. Presumption as to Chastity, how Rebutted. — Under a statute making it indictable to seduce a female of good re- pute for chastity, under promise of marriage, the state must prove her good repute affirmatively; it will not be presumed. In a recent case the court below had charged the jury that the law presumes every woman to be of good repute for chastity; that this presump- tion must be destroyed by proof of bad repute, in the absence of which the defendant may be convicted. This, as seen by the syl- labus quoted, was held to be error. The court, enumerating the elements of the offense described by the statute of New Jersey, that, 1st, the defendant must be a single man over the age of eighteen; 2d, the defendant must be a single woman; 3d, she must be under the age of twenty-one; 4th, she must 1 f good repute for chastity; 5th, the sexual intercourse tnusl have been had under .a promise of marriage; 6th, she must thereby become pregnant; 876 LAW OF EVIDENCE IN CRIMINAL CASES. and 7th, the evidence of the female must be corroborated to the extent required in case of indictment for perjury, says : "These are essential elements of the offense; the presence of each and all of them is necessary to conviction, and the absence of any of them is fatal to the case of the state. The burden rests upon the state to prove the guilt of the accused beyond a reasonable doubt, and therefore each of these facts must be established Good repute for chastity is a quality which may or may not exist in the prosecutrix; women are not all chaste; the statute itself rec- ognizes two classes, those of good repute and those not of good repute. With the former class only can the statutory crime pos- sibly be committed. . . . " A woman who comes into court with a bastard child in her arms, is not a representative of her sex; happily she represents a very insignificant portion of it. The fact that she has sacrificed that virtue which was her glittering crown, casts such a shadow upon her, that ip the most charitable view of the case, it should be left without presumption either way, to be determined by com- petent evidence what her prior repute has been. Her immoral conduct, unless mitigating circumstances are shown, classes her with the vicious and disreputable, and, as to her, negatives the presumption of purity, so universally accorded to her sex. The question is, not whether the vast majority of females are of good repute, but whether in this case it shall be presumed as a fact. against the defendant that the woman with whom the crime is alleged to have been committed, and who carries with her the evidence of her shame, is of good repute. The rule, if well founded, must be of universal application, and involves the broad proposition that of the entire class of women who bear illegitimate children, it must be presumed that every one who prefers a charge of this kind is of good repute for chastity. It will be more rea- sonable to reverse the proposition. . . . " She has avowedly participated with the defendant in a viola- tion of the criminal law, and she must be regarded as in pari de- licto until those material facts (of which her good repute is one) are shown to exist which aggravate the character of the delictum and make the defendant alone amenable to the higher statutory crime. To assert that a woman establishes a claim before the law to the presumption of good repute for chastity, when she admits her dereliction, seems contrary to reason and propriety, and places- SEDUCTION UNDER PROMISE OF MARRIAGE. 877 her upon the same plane with those whose lives have been blame- less." Zabriskie v. State, 43 N. J. L. 641, 39 Am. Rep. 610. See 3 Grim. L. Mag. 333. § 555. Corroboration Required as to Promise and Inter- course. — Corroboration is required as to the promise and in- tercourse only, and not with respect to chastity or being unmar- ried. Kenyon v. People, 26 X. Y. 203, 84 Am. Dec. 177; Cran- dall v. People, 2 Lans. 309. Circumstantial evidence was always sufficient in supporting an accomplice, corroboration being re- quired only as to the person of the accused; that is, testimony showing that the defendant was the party who committed the crime. Wliart. Crim. Ev. § 412. In the case of an accomplice; whether evidence is sufficient is for the determination of the jury, the law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evi- dence of his accomplice. People v. Everhardt, 104 X. Y. 294; People v. Elliott, 106 K Y. 292; People v. Jaehne, 103 N. Y. 182; Crandall v. People, supra; People v. Plath, 100 X. Y. 594, 53 Am. Rep. 236. The supporting evidence need be such only as the character of the matters admits of being furnished. It was for the jury to say whether the supporting evidence was sufficient. Armstrong v. People, 70 X. Y. 14: Crandall v. People, People v. Elliott and People v. Ewrhardt, supra. In prosecutions for adultery or for illicit intercourse of any class, evidence is admissi- ble of sexual acts between the same parties prior to or when indi- cating continuance of illicit relation-, even subsequent to the act specifically under trial. "Whart. Crim. Ev. (8th ed.) § 35; Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec, 110; Statev. JSridgman, 49 Vt. 202, 24 Am. Rep. 124; Crandall v. People, supra. The statute requires only previous chastity. X. Y. Penal Code, § 284; Armstrong v. People, supra. No corroboration is required as to previous chastity or as to the fact of being unmarried. Arm- strong v. People and Kenyon v. People, .supra,; Boyee v. People, 55 N. Y. till; Jenkins v. Putnam, 106 N". Y. •ArJ; People v. K< wney, 110 X. V. 190. Under the .Now York act to punish seduction as a crime (Laws of 1 348, chap. 1 1 1) it is sufficient that the defendant effected his object by a conditional promise that, if the girl would permit his illicit connection, he would marry her. 878 LAW OF EVIDENCE IN CRIMINAL, CASES. The submitting to his embraces upon tliis proposition is, it seems, a promise to marry on her part. Evidence of general reputation of the girl's want of chastity is inadmissible. Previous chaste character, in this statute, means actual personal virtue — not reputation; and can be impeached only by specific proof of lewdness. The corroboration of the seduced female, required by the stat- ute, relates to the promise and the intercourse; it is not necessary in respect to her chastity or to her being unmarried. The evidence of the seduced female is admissible that the promise of marriage was the inducement to the illicit intercourse. It is unnecessary that the promise should be a valid one, or that the defendant be of full age. It is sufficient that he has arrived at the age of puberty. Kenyan v. People, 26 K. Y. 203,. 84 Am. Dec. 177. On a prosecution for seduction of a girl with whom defendant had previously had illicit intercourse, but who had again become of chaste character, evidence of other witnesses that defendant resumed his visits as a suitor, and continued them for several months, the same as persons contemplating marriage usually do, sufficiently corroborates the testimony of the prosecutrix to the principal facts. State v. Gnagy (Iowa) Dec. 18, 1891. The defendant was convicted of seduction, under section -1015 of the Alabama Code, 1886, which declares: "No indictment or conviction shall be had under this section, on the uncorroborated testimony of the woman upon whom the seduction is charged." This clause of the statute was fully considered in Cunningham v. State, 73 Ala. 51. It w T as then construed as not requiring that other witnesses shall testify to every fact testified to by the wom- an; but that its requirements are met, when the corroboration is of some matter which is an element of the offense, and its effect is to satisfy the jury that the corroborated witness has testified truly. The true rule is stated as follows : "That the corrobora- tion shall be such as to convince the jury, beyond a reasonable doubt, that the witness swore truly, but, to produce this convic- tion it must be in a matter material to the issue, and must tend to connect the defendant with that material matter, and the mat- ter itself must not be in its nature formal, indifferent, or harmless." This instruction was re-affirmed in Wilson v. State, 73 Ala. 527, at a subsequent term of the court. The corroborating evidence SEDUCTION UNDER PROMISE OF MARRIAGE. 879* consisted of the defendant's frequent visits to the female for whose seduction he was indicted, his escorting her to church, parties, and other social gatherings, and his admission of an en- gagement and intention to marry her, made about the time of the alleged seduction. A promise of marriage is one of the alterna- tive elements of the offense denounced by the statute. The cor- roboration was as to this act, with which the evidence connected defendant. His admissions were properly received in evidence. The phraseology of the charge of the court on this subject may be objectionable, as importing to the jury that the corroborating testimony was sufficient. Evidence may be sufficient to meet the statutory requirement as to corroboration, and yet not sufficient to satisfy the jury that the woman swore truly. § 556. Time not Material. — The exact time is never material. Although the prosecutrix may be quite positive in this respect, she is not infallible, and may be mistaken; and it is not material that the seduction occurred on the particular day named by the prosecutrix. It is therefore, not essential that she should be cor- roborated as to the exact day. In this connection we deem it proper to say that the instructions of the court, that if the seduc- tion was accomplished about or near the time named in the indict- ment, and fixed by the prosecutrix in her evidence, it was suffi- cient, are correct. State v. Bell, 49 Iowa, 440; State v. McClin^ tic, 73 Iowa, 663. As to further evidence necessary to sustain an action for seduc- tion, see Wood v. State, 48 Ga. 192, 15 Am. Rep. 664; Wilson v. State, 58 Ga. 328. On evidence to impeach the chastity of the female, see White v. Murtland, 71 111. 250, 22 Am. Rep. 100; Love v. Masoner, 6 Baxt. 24, 32 Am. Rep. 522. Where the offense charged is the last of several similar acts, the jury may consider them as the elements of one wrong. Haymond v. Saucer, M Ind. 3. It is not necessary that the promise should be a valid and bind- ing one between the parties. The offense consists in seducing and having illicit connection with an unmarried female under promise of marriage. It is enough that a promise is made which is a consideration for or inducement to the intercourse. Kenyan v. People, 26 K Y. 203, 84 Am. Dec. 177. This case is approved in Boyce v. People, 55 N. Y. 644. In that case the promise was one conditioned upon a consent to illicit connection. That con- 880 LAW OF EVIDENCE IN CRIMINAL CASES. sent, based upon such a promise was within the law. It was held, in Armstrong v. People, 70 N. Y. 38, that the question was not presented by the case. Any line of conduct on the part of a parent, from which there may be justly inferred an assent to, or connivance at the illicit intercourse, will deprive him of all right to maintain an action for the seduction of his daughter. Such conduct, even if not amount- ing to an absolute assent, but showing want of due care on his part, may be taken into account in measuring the damages. It is no excuse for the parent that such conduct was in conformity with the customs of the community in which he lived. Graham v. Smith, 1 Edm. Sel. Cas. 267. The chastity of the woman, at the time of the criminal connec- tion, is an essential ingredient of the offense. The statute pr< \- vides, "No conviction shall be had, if on the trial it is proved that such woman was, at the time of the alleged offense, unchaste." Munkers v. State, S7 Ala. 94. In Cook v. People. 2 Thomp. & C. 404, the prosecutrix was asked, "and would you have consented to it (the connection) in the absence of a promise ?" Held, inadmissible as calling for a merely speculative answer. But the female may testify to the fact that she consented to the intercourse because of the promise. State v. BrinJchaus, 34 Minn. 285, 7 Crim. L. Mag. 343. Evidence that defendant, subsequent to the seduction, had refused to marry the prosecutrix is inadmissible. Cook v. People, 2 Thomp. & C. 404. See Callahan v. State, 63 Ind. 198, 30 Am. Rep. 211; People v. DeFore, 64 Mich. 693, 8 Am. St. Rep. 868; State v. Prizer, 49 Iowa, 531, 31 Am. Rep. 155; Zabriskie v. State, 43 K J. L. 640, 39 Am. Rep. 610; Oliver v. Com. 101 Pa. 215, 47 Am. Rep. 704; People v. Roderigas, 49 Gal. 9; Polk v. State, 40 Ark. 482, 48 Am. Rep. 17; People v. Squires, 49 Mich. 487; Wood v. State, 48 Ga. 192, 15 Am. Rep. 664; State v. Rig- don, 32 Iowa, 262. CHAPTER LXIII. CRIMINAL LIBEL. § 557. The Term "Libel" Defined. 558. What Constitutes Criminal Libel. 559. The Term " Publication" Defined. 560. Publication, liow Proved. 561. What the Indictment mud Show. 562. Outline of Plaintiff's Proofs. 563. A Restriction upon Plaintiff's Evidence Noted. 564. Evidence in Aggravation of Damages. 565. Malice as an' Element — Presumptions as to. 566. Privileged Communications. 567. Rules as to Justification. 568. Repetition of a Slander. 569. Malice, hoto Proved. 570. Evidence of Intent Material. 571. Accused wan Sircar to his latent. 572. Fair Criticism Allowed. 573. Rules as to Editors and Reporters. 574. Miscellaneous Authorities on the Subject. § 557. The Term Defined. — There are many definitions of libel. The one by Alexander Hamilton in his argument in Peo- ple v. Croswell, 3 Johns. Cas. 203, viz: " A censorious or ridicul- ing writing, picture or sign, made with malicious intent towards government, magistrates or individuals," has been often referred to with approval; but, unless the word "censorious" is given a much broader signification than strictly belongs to it, the definition would not seem to comprehend all cases of libelous words. The word " libel," as expounded in the cases, is not limited to written or printed words which defame a man, in the ordinary sense, or which impute blame or moral turpitude, or which criticise or cen- sure him. In the case before referred to, words affecting a man injuriously in his trade or occupation, may be libelous, although they convey no imputation upon his character. " "Words," says Starkie, "are libelous if they affeel a person in his profession, trade or business, by imputing to him any kind of fraud, dis- honesty, misconduct, incapacity, unfitness or want of any neces- 56 881 882 LAW OF EVIDENCE IN CKIMINAL CASES. sary qualification in the exercise thereof." Starkie, Slander & Libel, § 188. Libel is the willful and malicious publication, in a permanent and visible form, of some matter tending to injure the reputation of another. Chaddoek v. Briggs, 13 Mass. 248, 7 Am. Dec. L37. See 4 Bl. Com. 150; 2 Whart. Am. Crim. L. (8th ed.) § 1504; 1 Hawk. P. C. chap. 73, § 1. Of deceased persons {Com. v. Clap, 4 Mass. 163, 3 Am. Dec. 212; Anonymous, 5 Coke, 125a) if done to bring the family into contempt, stir up hatred, or excite to a breach of the peace. Com. v. Taylor, 5 Binn. 281; Rex v. Topham, 4 T. K. 127; 2 Bishop, Crim. L. (6th ed.) § 905. It is a crime at common law (see Com. v. Chapman, 13 Met. 68; Com. Holmes, 17 Mass. 336; State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217; State v. Avery, 7 Conn. 268, 18 Am. Dec. 105) an in- dictable offense {Com. v. Chapman, supra) it is not a private action, subject to compromise {Beg. v. The World, 13 Cox, C. C. 305) and neither retraction nor apology is a defense, going only in mitigation of damages. Com. v. Morgan, 107 Mass. 199. When- ever an action lies for libel without laying special damages, indict- ment lies. Stanton v. Andrews, 5 U. C. Q. B. 229; Desty, Am. Crim. L. § 140«. § 558. What Constitutes Criminal Libel. — "A malicious pub- lication, by writing, printing, picture, effigy, sign or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any per- son, corporation or association of persons, in his or their business or occupation, is a libel. A person who publishes a libel is guilty of a misdemeanor. A publication having the tendency or effect mentioned in section 242, is to be deemed malicious, if no justifi- cation or excuse therefor is shown. The publication is justified when the matter charged as libelous is true, and was published with good motives and for justifiable ends. The publication is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for this belief, and consists of fair com- ments upon the conduct of a person in respect to public affairs, or upon a thing which the proprietor thereof offers or explains to the public."' N. Y. Penal Code, §§ 242-244. The rule derived from the authorities, and with 'which most of CRIMINAL LIBEL. 883 the eases can be reconciled, seems to be this: When the words spoken have such a relation that the profession or occupation of the plaintiff tend" to injure him in respect to it, or to impair con- fidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff; but when they convey only a gen- eral imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable, unless such application can be made. Cawdry v. Highley, Cro. Car. 270; Chaddock v. Briggs, L3 Mass. 24S, 7 Am. Dec. 137; Davis v. Ruff, 1 Cheves, L. 17, 34 Am. Dec. 584; Ayre v. Craven, 2 Ad. & El. 2; Doyley v. Roberts, 3 Bing. X. C. S35; Jones v. Littler, 7 Mees. ite W. 423; Starkie, Slander & Libel, 118; 1 New head. Cas. 124; Sandi rson v. ( 'aldwell, 45 iSL Y. 405, 6 Am. Rep. 105. §559. The Term "Publication" Defined.— "To sustain a charge of publishing a libel, it is not necessary that the matter complained of should have been seen by another. It is enough that the defendant knowingly displayed it, or parted with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself." N. Y. Penal Code, § -i45. This may be effected in criminal law by merely sending a letter to the prosecutor couched in such terms as tend to incite a breach of the peace. In civil eases a publication may run to some third person and this fact must be shown. In criminal prosecutions, however, this rule is not strictly enforced. Odgers, Libel & Slander, 432; Heard, Libel & Slander, £ 204. Where a writer of a letter, containing libelous matter, reads the same aloud to a stranger, it is a publication. When a charge, in a written publication, is equivocal, the construction of it is a question for the jury. When the writing complained of as libelous, is plain and unambiguous, the question, in a civil action, whether it be a libel or not, is a question of law. Snyder v. A ml /■■ //-.v. <"> Barb. 43. §560. Publication, how Proved. — The publication of a libel by the defendant may be proved by evidence that, he distributed it with his own hand, or maliciously exposed its contents, or read or sung it in the presence of others; or, if if were a, picture, or a 884: LAW OF EVIDENCE IN CRIMINAL CASES. sign, that he painted it, or if it were done by any other symbol or parade, that he took part in it, for the purpose of exposing the plaintiff to contempt and ridicule. But to show a copy of a cari- cature to an individual privately, and upon request, is not a pub- lication. Nor is the porter guilty of publishing, who delivers parcels containing libels, if he is ignorant of their contents. So, if one sells a few copies of a periodical, in which, among other things, the libel is contained, it is still a question for the jury, whether he knew what he was selling. If the libel was published in a newspaper, evidence that copies of the paper containing it were gratuitously circulated in the plaintiffs neighborhood, though they be not shown to have been sent by the defendant who was the publisher, is admissible to show the extent of the circulation of the paper, and the consequent injury to the plaintiff. 2 Greenl. Ev. § 415, citing De Libellis Famosis, 5 Coke, 125; Jamie's Case, 9 Coke, 59; Johnson v. Hudson, 7 Ad. & El. 233; Rex\. Pearce, Peake, 75; Smith v. Wood, 3 Campb. 323; Day v. Bream, 2 Mood. & P. 54; Ch ubb v. Flannagan, 6 Car. libelous. The rule that in all prosecutions for libel, the jury have the right to determine the law and the fact, relates to criminal proceedings only. Hunt v. Bennett, 19 X. Y. 17:!. § 561. What the Indictment must Show. — It was long since held that an indictment must show on its face that the libel was written or printed. 2 Archb. Crim. Pr. & PI. (7th ed.) 223, 224. It is the rule that, where an exception is stated in the stat- ute defining the offense, the indictment must show that the case is not within the exception. People v. Brown, 6 Park. Crim. Rep. 666. In Jefferson v. People, 101 1N T . Y. 19, this rule is re- stated; but it was held not to be applicable to the indictment in that case. In Harris v. White, 81 K Y. 532, it was held that, where the exception is contained in the enacting clause, the in- dictment must negative the exception. There are no exceptions CRIMINAL, LIBEL. b85 to a rule that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offense, so as to bring the accused perfectly within the provisions of the statute. People v. Allen, 5 Denio, 76; People v. Taylor, 3 Denio, 91; People v. Burns, 53 Hun, 271; Peoples. Dumar, 106 N. Y. o(»5; Phelps v. People, 72 N. Y. 319. Even in an action to recover damages for fraud it is the established rule that, where the proof is equally consistent with guilt or innocence, there must be a verdict for the defendant. Morris v. Talcott, 96 N. Y. 100. It is also settled that a party in pleading must clearly state his cause of action or defense; and. when a statement in a pleading is susceptible of two meanings, the one most unfavorable to the pleader must be adopted. Clark v. Dillon, 97 aST. Y. 370. In criminal cases it is the universal rule that, where the indictment will admit of a construction in favor of innocence, it should be adopted. This doctrine is illustrated in Pe&ple v. Standish, 6 Park. Crhn. Rep. 111. In that case the defendant was indicted for illegal voting. It was alleged generally that he, "not then and there being a qualified voter,'' did vote, etc. The particular disqualification under which he rested was not alleged. It was proven upon the trial that the defendant made a bet, which under the statute disqualified him. The court held that, the particular disqualification should have been alleged in the indictment. "Those facts which give character to the act. and which render it criminal, should be alleged in the indictment, otherwise the great object of pleading — that of informing the party what he is called upon to answer — will be defeated." An indictment for a criminal libel cannot be sustained if the prosecutor or libelee, in order to sustain a civil action for the of- fense, must allege special damages. § 562. Outline of Plaintiff's Proofs.— " The natural order of the proofs in actions for defamation on the part of the plaintiff, where the general issue has been pleaded, is : "(1 ) Plaintiff's special character and extrinsic matter. "(2) Publication of the defamatory matter. "(3) The colloquium and innuendoes. "(1) Malice. "(5) Damage. Where the words are actionable only by reason of the plaintiff's holding an office or exercising a profession or trade, the plaintiff 886 LAW OF EVIDENCE IN CRIMINAL CASKS. must prove that he held such office or exercised such profession or trade at the date of publication, and that the words complained of were spoken of him in that capacity." Newell. Defamation, Slander & Libel, 751. Upon a recent trial, plaintiff was permitted to prove, under ob- jection and exception, the nature of his business, and that he was a married man. Held, no error; and this proof was competent, not to show special damages, as none had been alleged, but as bearing upon the hurtful tendency of the libel and the general damage. Morey v. Morning Journal Asso. 9 L. R. A. 621, 123 23". Y. 207. Repetition of slanderous charge prior to the commencement of the suit may be proven to show motive. Root v. Lowndes, 6 Hill, 518, 41 Am. Dec. 762; Johnson v. Brown, 57 Barb. 118; Bassell v. Elmore, 48 K Y. 561; Gray v. Nellis, 6 How. Pr. 290; Inman v. Foster, 8 Wend. 602; Distin v. Rose, 69 N. Y. 122; Clapp v. Devlin, 3 Jones & S. 170; Flanders v. Groff, 25 Hun, 553; Titus v. Sumner, 44 N. Y. 266; Miller v. Kerr, 2 McCord, L. 285, 13 Am. Dec. 722. There is a conflict of authority as to whether repetitions subse- quent to the commencement of the suit may be shown. In addi- tion to the authorities above cited, see Frazer v. McClosk.ey, 60 X. Y. 337, 19 Am. Rep. 193; Distin v. Rose, 69 N. Y. 122; Storch v. Buffalo German R. Printing Asso. 22 Alb. L. J. 135; John- son v. Brown, 57 Barb. 118; Miller v. Kerr, 2 McCord L. 285, 13 Am. Dec. 722, 1 Whart. Crim. Ev. p. 44, § 32; Abbott, Trial Brief, 6G6; Kennedy v. Gifford, 19 Wend. 296. On a trial the witness was asked on behalf of the people, '•When you read this article did you recognize its application or any particular individual?" He answered, "I did." Then he was asked, "Who was the person that you recognized that this article referred to?" and he answered "Leo Oppenheim." This evidence was improper. It was for the people to show facts from which the jury might infer that Oppenheim was the person intended by defendant. The testimony of witnesses that they recognized Oppenheim as referred to, was only the statement of their opin- ion. This matter was not one for experts. Their opinion must have been based upon facts known to them. They should have testified only to such facts. If this kind of testimony were proper, then the defendant could have called witnesses to testify that they CRIMINAL LIBEL. 887 •did not recognize Oppenheim as the person referred to. But such testimony would be plainly improper. This principle is distinctly decided in Van Vechten v. Hopkins, 5 Johns. 211, 1 Am. Dec. 339; Gibson v. Williams, 4 Wend. 320; Maynard v. Beardsley, 7 Wend. 561, 22 Am. Dec. 595; Weed v. Bibbins, 32 Barb. 315, and by implication in Wright v. Page, 36 Barb. Ill; People v. Parr, 5 K Y. Crim. Rep. 31. § 563. A Restriction upon Plaintiff's Evidence Noted. — "The plaintiff should never be permitted to give in evidence words which might be the subject of another action. Root v. Lowndes, 6 Hill, 518, 11 Am. Dec. T62, per Bronson, J.; DeFries v. Da- vies, 7 Car. & P. 112, per Tindal, J. The reason is obvious; the defendant might be compelled to pay damages twice for the same injury. In the present case, the words allowed to be proven, being actionable^/' 6y j , and having been spoken after the com- mencement of the action, a second action would have been clearly maintainable for them. They were spoken in September, 1871, and the trial was in September, 1872. In KeenJiolts v. Becker, 3 Denio, 316, it was expressly adjudicated that words spoken after the commencement of the action were not admissible to aggravate the damages; and we see no reason to question the correctness of that decision." Rapallo, J., in Frazer v. McClosTcey, 60 Is. Y. 338, 19 Am. Kep. 193. § 561. Evidence in Aggravation of Damages. — The violence of the language, the nature of the imputation conveyed and the fact that the defamation was deliberate and malicious will aggra- vate the damages. All the circumstances attending the publica- tion may, therefore, be given in evidence, and any previous transaction between the plaintiff and the defendant which has any direct bearing on the subject-matter of the action, or is a nec- essary part of tho history of the case; the rank or position in society of the parties; that the attack was entirely unprovoked; that defendant could easily have ascertained that the charge he made was false; and evidence may be given to show that the defendant was culpably reckless or grossly negligent in the mat- ter; the mode, the extent and the long continuance of publication. Such evidence is admissible with a view to damages, although the publication has been admitted in the pleadings. The defendant's subsequent conduct may aggravate the. damages, as if he has refused to listen to any explanation or to retract the charge he &S8 LAW OF EVIDENCE IN CRIMINAL CASES. had made. Lea v. Robertson, 1 Stew. (Ala.) 138; Gorman v. Sutton, 32 Pa. 247; Fero v. Ruscoe, 4 K Y. 162. Newell, Defamation, Slander & Libel, 785. § 565. Malice as an Element, Presumptions as to. — Malice is a necessary ingredient of the offense; but it is not necessary to render an act malicious that the party be actuated by a feeling of hatred or ill-will, or that he pursue or entertain any general bad pur- pose or design. Express malice may be shown by other libels net materially different; and untruthfulness and other circumstances raise an inference of express malice. It is a question of fact to be submitted to the jury. The mere fact of publication shows malice. Malice in a legal sense means a wrongful act done inten- tionally, without just cause or excuse. Desty, Am. Crim. L. § 140 b., citing Com. v. Snelling, 32 Mass. 337; Com. v. Bonner, 9 Met. 410; Com. v. Blanding, 3 Pick. 304, 15 Am. Dec. 214. See 2 Whart. Am. Crim. L. (8th ed.) § 1648; Com. v. Harmon, 2 Gray, 289; MoCullough v. Mclntee, 13 U. C. C. P. 441; White v. Mcholls, 44 U. S. 3 How. 266, 11 L. ed. 591; Wheeler v. Nesbiit r 65 U. S. 24 How. 544, 16 L. ed. 765; Bromage v. Prosser, 4 Barn. & C. 247; Fairman v. Ives, 1 Dowl. & R. 255; Tltompson v. Shackell, 1 Mood. & M. 1S7; Maynard v. Firemans Fund Ins. Co. 34 Cal. 48, 91 Am. Dec. 672; Reg. v. Gat/