BOOK THE FIFTH.

OF EVIDENCE.

CHAPTER THE FIRST.

OF WHAT NATURE EVIDENCE MUST BE. OF PRESUMPTIVE EVIDENCE, p. 354. — ON THE RULE THAT THE BEST POSSIBLE EVIDENCE MUST BE PRODUCED, p. 362. - AND OF HEARSAY EVIDENCE, p. 383.

BEFORE entering upon the subject of Presumptive Evidence, to which the following section will be appropriated, it may be proper to pay attention to a few points applicable to the law of evidence in criminal prosecutions generally.

There is in general no difference as to the rules of evidence between criminal and civil cases. What may be received in the one case may be received in the other, and what is rejected in the one ought to be rejected in the other. (a) A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence. (b) In a criminal trial if evidence is improperly admitted the conviction is bad although there was sufficient legal evidence upon which to convict. (c)

It has been doubted whether a bill of exceptions lies in any criminal case. (d) It seems now to be settled that it does not. (e) If the judge who presided at the trial was of opinion that there was a doubt whether he might not have admitted some evidence or witness improperly, or whether the facts proved constituted the crime charged, he might formerly, in his discretion, forbear to pass sen

5.

Kel. 15. 1 Sid. 85. Hawk. P. C. b. 2, c. 46. s. 210. R. v. Lord Paget and others, 1 Leon, R. v. Nutt, 1 Barnardist. 307. 2 Phil. Ev. 465. R. v. Inhabitants of Preston, Cas. temp. Hardw. 249.

(e) R. v. Rice, 2 Cox, C. C. 118; R. v. Jelly, 10 Cox, C. C. 553; R. v. Esdaile, 1 F. & F. 213. Lord Campbell, C. J. R. v. Alleyne, Dears. C. C. 505. Arch. C. P. 149. R. v. Brown, Arch. C. P. 149.

AMERICAN NOTE.

1 It seems to be the law in America that if the defendant does not object to the illegal evidence, but permits it to go to the jury, he

cannot afterwards avoid the effect of the verdict and judgment. Bishop, i. s. 997, citing Bishop v. S., 9 Ga. 121.

tence, or respite the judgment, until the opinions of the fifteen judges were obtained upon a case reserved. And now by the 11 & 12 Vict. c. 78, (ƒ) when any person is convicted of any treason, felony, or misdemeanor, before any court of oyer and terminer or gaol delivery or court of quarter sessions, the judge or commissioner or justices of the peace before whom the case is tried, may, in his or their discretion, reserve any question of law, which has arisen on the trial (g) for the consideration of the Court constituted by that Act, and forbear to pass sentence, or respite the judgment until such question is decided. (h)

Where the defendant has been convicted on an indictment for a misdemeanor, removed into the Court of Queen's Bench by a writ of certiorari, a new trial may be granted, at the instance of the defendant, where the justice of the case requires it. (i) Where several defendants are tried at the same time for a misdemeanor thus removed, and some are acquitted and others convicted, the Court of Queen's Bench may grant a new trial as to those convicted, if they think the conviction improper. (j) And it is a rule that where there is only one defendant, he must be present in court when a motion is made for a new trial. (k) And where several defendants are convicted upon an indictment for a misdemeanor thus removed into the Court of Queen's Bench, all must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. (1) But where a defendant has been found guilty of an offence, e. g. a nuisance, for which he is not liable to personal punishment, but only to a fine, it is not necessary that he should be present in court when a motion is made for a new trial. (m) Whenever it is necessary for a defendant to be present, if he be already in custody, he must obtain a habeas corpus to bring him into court. (n) The presence of the defendant is not necessary on the argument of a special verdict, as the presumption of innocence may be supposed to continue. (0) As a general rule, no new trial can be had where the defendant is

(f) See Appendix of Statutes.

(g) If prisoner pleads guilty, no question can be reserved under this Act, R. v. Clark, L. R. 1 C. C. R. 54, 36 L. J. M. C. 16; 10 Cox, C. C. 338.

(h) See the rules issued by the judges as to such cases reserved in 1 Den. C. C. ix.

(i) R. v. Mawbey, 6 T. R. 638. Tidd, 942, 943. R. v. Whitehouse, Dears. C. C. 1. It seems there can be no new trial in cases of felony. Ex parte Edulgee Byramjee, 11 Jur. 855; R. v. Bertrand, L. R. 1 P. C. 520, 10 Cox, C. C. 618; Att.-Gen. of New South Wales v. Murphy, 11 Cox, C. C. 372; R. v. Scaife, 17 Q. B. 238; 2 Den. C. C. 281; 13 East, 416.1

(j) R. v. Mawbey, 6 T. R. 619. R. v. Gompertz, 9 Q. B. 824. But in conspiracy, if several are convicted, the new trial must be as to all, though only one shews himself to be entitled to it.

R. v.

(k) R. v. Caudwell, 17 Q. B. 503, 21 L. J. M. C. 48. Howard v. R., 11 L. T. 629. (1) R. v. Teal, 11 East, 307. Askew, 3 M. & S. 9. (m) R. v. Parkinson, 2 Den. C. C. 459, 21 L. J. M. C. 48, note (r).

(n) R. v. Spragg, 2 Burr. R. 930. See R. v. Hollingberry, 4 B. & C. 329, where the defendant is in custody on criminal process. (0) Note to R. v. Spragg.

AMERICAN NOTE.

1 In America, new trials are allowed in treason, felony, and misdemeanor, see Bishop, i. s. 1003. Where the verdict is guilty as to part only, it seems doubtful VOL. III. 23

how far the whole case is re-opened by the new trial. In Ohio, the Courts have held one way, and in Wisconsin the other. See Bishop, i. s. 1005, 1006.

acquitted, although the acquittal was founded on the misdirection of the judge; (p) or where the defendant's own fraud has secured his acquittal, (q) or where a verdict is found for a defendant on a plea of autrefois acquit, although that raises a collateral issue, which may have been found in favour of the defendant on insufficient evidence. (r) But where the proceeding is in substance merely to try a civil right, a new trial may be granted where the indictment has been removed as above after an acquittal; (8) and therefore a new trial may be granted where the question is as to the liability to repair a highway, (t) but not where the charge is a wrongful obstruction of a highway. (u) Before the Judicature Acts, when it was intended to move the Court of Queen's Bench for a new trial in a criminal case, either the motion should be made within the first four days of term, or during those days an intimation must have been given to the Court that counsel was prepared to make that motion. (v)

SEC. I.

Of Presumptive Evidence.

When a fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances that necessarily or usually attend such facts, and are called presumptions, not proofs, for they stand instead of the proofs till the contrary be proved. (w) In criminal cases, from the secret manner in which

(p) R. v. Cohen, 1 Stark. N. P. C. 516. R. v. Sutton, 5 B. & Ad. 52.

(q) R. v. Furser, Say. 90. R. v. Davis, 12 Mod. 9. R. v. Bear, 2 Salk. 646.1

(r) R. v. Lea, 2 M. C. C. R. 9, S. C. 7 C. & P. 836.

(s) R. v. Chorley, 12 Q. B. 515. R. v. Russell, 3 E. & B. 942, 23 L. J. M. C. 173. R. . Leigh, 10 A. & E. 398.

(t) R. v. Chorley, supra.

(u) R. v. Russell, supra. R. v. Johnson, 2 E. & E. 613, 29 L. J. M. C. 133. R. v. Duncan, 7 Q. B. D. 198.

(v) R. v. Newman, 1 E. & B. 268, 22 L. J. Q. B. 156.

(w) Gilb. Ev. 142. As if a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword; this is a violent presumption that he is the murderer: for the blood, the weapon, and the hasty flight, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself, is the proof of those circumstances that do necessarily attend such fact. Ibid. Unless the wound was in such a part of the

body that the deceased could not have inflicted it himself, and it was shewn that no other person had been in the room, it is conceived that such a presumption ought not to be considered as conclusive. In Ashford v. Thornton, 1 B. & Ald. 428, where the subject of presumption in cases of murder was much discussed, Abbott, J., said, 'A case might be put where a person should come up and find another lying wounded with a dagger in his body, and should draw it out, or should, in assisting the wounded man, wrench the knife out of the murderer's hand; then, if the murderer escaped, leaving him with the body, according to this law [Bracton] he would be considered guilty of the murder, and be immediately hanged without trial.' And, in the history of the law, several presumptions which were at one time deemed conclusive by the courts, have, by the opinions of later judges, acting upon more enlarged principles, become conclusive only in the absence of proof to the contrary, or have been treated as wholly within the discretion of juries.' 1 Phil. Ev. 441. C. S. G.

AMERICAN NOTE.

1 This seems to be so in America, see Pruden v. Northrup, 1 Root, 93. S. v. Jones, 7 Ga. 422. S. v. Wright, 2 Tread. 517. S.

v. Brown, 16 Con. 54. S. v. Davis, 4 Blackf. 345.

guilty actions are generally perpetrated, it is seldom possible to give direct evidence of the commission of the offence charged, i. e. to produce a witness who saw the act committed; and, therefore, recourse must necessarily be had to presumptive (or, as it is often called, circumstantial) evidence, i. e. the direct evidence of circumstances, from which the commission of the act may be presumed by the jury. (x)

Where an indictment for murder was supported entirely by circumstantial evidence, and there was no fact which, taken alone, amounted to a presumption of guilt; Alderson, B., told the jury that before they could find the prisoner guilty, they must be satisfied not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person;' and he then pointed out to them the proneness of the human mind to look for, and often slightly to distort the facts, in order to establish such a proposition, forgetting that a single circumstance, which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. (y)

There is no difference between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, except that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judg ment, than in the latter, which affect life and liberty. (z)

Presumptions. One of the most usual presumptions in criminal prosecutions occurs in cases of larceny, where upon proof of the felony having been committed, and of the property stolen having been shortly afterwards found in the possession of the prisoner, it is presumed that he actually stole it, unless he prove how he came by it. (a)

Ev. 838, et seq.

(y) Hodge's case, 2 Lew. 227. See the very able observations on this subject, 1 Stark. Ev. 841, et seq., 859, et seq.

(2) 1 Phil. Ev. 166, 7th edit. Perhaps strong circumstantial evidence in cases of crimes, committed 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 offence 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 altogether the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous. East. P. C. c. 5, s. 9, p 223.

1

(a) Where two prisoners were indicted

for stealing two horses, and the case against them consisted entirely of evidence to shew that both the horses were found soon after the robbery, in the joint possession of the prisoners, and it appeared that the horses had been stolen on different days, and at different places, Littledale, J., compelled the prosecutor to elect on which of the two stealings he would proceed; and his lordship observed that the possession of stolen property soon after a robbery is not in itself a felony, though it raises a presumption that the possessor is the thief; it refers to the original taking, with all its circumstances. R. . Smith, Ry. & Mood. N. P. C. 295. Where the only evidence against the prisoner was that three sheets were found upon his bed in his house three calendar months after they had been stolen, and it was urged that this was too long a time after the larceny to call on the prisoner to give any account how he had become possessed of them; and R. v. Adams, ante, vol. ii. p. 288, was relied upon; Wightman, J., held that the case must go to the jury, as it seemed to him that it was impossible to lay down any definite rule as to the precise time, which was too great to call upon the prisoner to give an account of the possession, and that

So also on an indictment for the crime of arson, proof that property, which was taken out of the house at the time of the firing, was afterwards found secreted in the possession of the prisoner, raises a presumption that the prisoner was present, and concerned in the arson. (b) So also proof that clothes, weapons, or implements, which are shewn to have been previously in the possession of the prisoner, were found at or near to the spot where a felony was committed, is frequently adduced in order to raise a presumption that the prisoner was present at the time when the felony was committed. (e) The buying goods at an under value is said to be presumptive evidence that the buyer knew they were stolen. (d) Upon an indictment for perjury, in falsely taking the freeholder's oath at the election of a knight of the shire, in the name of J. W., it appearing by competent evidence that the freeholder's oath was administered to a person who polled on the second day of the election, by the name of J. W., and who swore to his freehold and place of abode; and that there was no such person, and that the defendant voted on the second day, and was no freeholder, and some time afterwards boasted that he had done the trick, and was not paid enough for the job, and was afraid he should be pulled for his bad vote; and it not appearing that more than one false vote was given on the second day's poll, or that the defendant voted in his own name, or in any other than the name of J. W., it was held that there was sufficient evidence for the jury to presume that the defendant voted in the name of J. W., and consequently to find him guilty of the charge as alleged in the indictment. (e)

Ordinarily all instruments are written at the time they bear date, and therefore the date of any instrument is presumptive evidence

in this case there was some evidence, although very slight, for the jury to consider. The prisoner was acquitted. R. v. Hewlett, Salop Spring Ass. 1843, MS. C. S. G. See R. . Knight, L. & C. 378, and R. v. Langmead, L. & C. 427, vol. ii. p. 290. Mr. Starkie observes that the recent possession of stolen goods is recognised by the law as affording a presumption of guilt, and therefore, in one sense, is a presumption of law, but it is still in effect a mere natural presumption; for although the circumstance may weigh greatly with the jury, it is to operate solely by its natural force, for a jury are not to convict unless they be actually convinced in their consciences of the truth of the fact. Such a presumption is, therefore, essentially different from the legal presumptions in fact where a jury are to infer that a bond has or has not been satisfied, as a few days or even hours, more or less, have elapsed, when the twenty years are expiring.' 2 Stark. Evid. 684.

(b) R. v. Rickman, 2 East, P. C. 1035.

(c) In R. v. Stonyer and others, Stafford Spr. Ass. 1843, cor. Wightman, J., on an indictment for burglary in the house of Keeling, evidence was given of the finding of a crowbar in the house of one Bladon, which was near Keeling's, and was broken into the same night, it being proved that the

crowbar had been previously seen in the possession of the prisoners, and a chest of drawers in Keeling's house having been broken open by such an instrument. Such is the inference of guilt drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which by means of such an instrument had been burglariously entered. 1 Stark. Ev. 844. Greenl. Ev. 49. See R. v. Exall, 4 F. & F. 922.

(d) Ante, vol. ii. p. 440.

(e) R. v. Price, 6 East, 323. The following is an example of a case of circumstantial evidence too weak for conviction. Two women were indicted for colouring a shilling and sixpence, and a man (Isaacs) as counselling them, &c. The evidence against him was, that he visited them once or twice a week; that the rattling of copper money was heard whilst he was with them; that once he was counting something just after he came out; that on going to the room just after the apprehension, he resisted being stopped, and jumped over a wall to escape; and that there were then found upon him a bad three-shilling piece, five bad shillings, and five bad sixpences. Upon a case reserved, the judges thought the evidence too slight to convict him. R. v. Isaacs, MS. Bayley, J., ante, vol. i. p. 216.