the magistrate performed the duties imposed on him by statute.56 Where an amended information and an amended affidavit were filed at the same time before a justice, the amended information will be presumed to have succeeded the amended affidavit on which its context shows that it was based.57

[§ 1018] (2) Official Acts. The well recognized presumptions as to the legality and proper performance of official acts 5s apply in criminal proceedings.59 The presumptions are rebuttable.60

[ý 1019] h. Law of Sister State. In the absence of evidence to the contrary, it will be presumed that the common law of another state is the same as the common law of the forum.81 Likewise, it will not be assumed that the statutory law of a sister state differs from that of the forum.62

[ 1020] 3. Arising from Particular Matters 63 -a. Indictment. The finding of an indictment against a person does not raise a presumption of his guilt, except, in some jurisdictions, on an application for admission to bail.5

[§ 1021] b. Conviction of Alleged Coprincipal. No presumption arises against one alleged principal jointly indicted with others, because his codefendants have been convicted on a separate trial;66 nor

56. Peo. v. Bruno, 175 App. Div. 33, 161 NYS 647 [rev on other grounds 220 N. Y. 702, 115 NE 1004]; State v. Mewhinney, 43 Utah 135, 134 P 632, LRA1916D 590, AnnCas1916C 537.

57. State V. Adams, 80 Mo. A.

293.
58. See Evidence [16 Cyc 1076].
59.
U. S.-May v. U. S., 236 Fel.
495, 149 CCA 547; U. S. v. Elton, 222
Fed. 428; Norddeutscher Lloyd v. U.
S., 213 Fed. 10, 130 CCA 85; Carlisle
V. U. S., 194 Fed. 827, 114 CCA
531.

Ala.-Davis v. State, 17 Ala. 415. Del.-State v. Barr, 23 Del. 340, 79 A 730.

Fla.-Haynes v. State, 71 Fla. 585, 72 S 180; Montgomery v. State, 53 Fla. 115, 42 S 894.

Ill.-Peo. v. Walker, 179 Ill. A. 455. Ind.-Mountjoy v. State, 78 Ind. 172 (signature of the clerk to the jurat); Woods v. State, 63 Ind. 353.

Ky.--Smith v. Com., 4 SW 798, 9 KyL 215 (swearing of the sheriff and the deputy before taking charge of the jury).

La-State v. Maroun, 136 La. 54, 66 S 395; State v. Wright, 41 La. Ann. 600, 6 S 135 (service of a correct copy of the venire).

Miss. Simmons v. State, 109 Miss. 605, 68 S 913; Hightower v. State, 58 Miss. 636.

Nebr.-Holland v. State, 100 Nebr. 444. 160 NW 893.

Nev-State v. Clark, 32 Nev. 145, 104 P 593, AnnCas1912C 754.

Oh.-State v. Wallahan, Tapp. 80. S. D.-State v. Flagstad, 25 S. D. 337, 126 NW 585; State v. Matejousky, 22 S. D. 30, 115 NW 96.

Tenn.-Balden v. State, 122 Tenn. 704. 127 SW 134.

Tex.-Wilson v. State, 16 Tex. A.

71

72

69

[§ 1022] c. Failure to Testify. It is a rule, affirmed by constitution or statute in some states, that no presumption against an accused arises from the fact that he has not taken the stand as a witness in his own behalf.70 On the other hand, the failure of an accused to testify does not raise any presumption in his favor, and he cannot avoid the natural and reasonable inferences deducible from proved facts by merely remaining silent or by declining to become a witness.7 Also an inference that accused could not truthfully deny the important facts bearing upon the question of his guilt or innocence may be drawn where he does not rely on his right not to testify, but excuses himself by presenting a question of fact as to whether his condition of health is such that he can safely offer himself as a witness, and the jury find that faet against him.73 The admission of the testimony of accused given on a former trial is not in violation of the law which protects one from being prejudiced by having failed to testify for himself.74

32

46.

-N. Y. Code Cr. Proc. § 393, declaring that defendant in all cases may testify as a witness in his own behaif, but that his neglect or refu al to testify does not create any presumption against him, applies only to "defendants." or persons against whom a charge has been brought, and is not the same as the constitutional provision declaring that no person shall be compelled to testify against himself, which provision includes not only defendants, but all witnesses. U. S. v. Kimball, 117 Fed. 156.

71. Peo. v. Smith, 144 Ill. A. 129 [aff 239 Ill. 91, 87 NE 885].

[a] Thus, where accused does not take the stand nor offer any evidence other than that of good character, it cannot be assumed that any matter or excuse not developed by the state's proof is available to him as a defense. Peo. v. Smith, 144 Ill. A. 129 [aff 239 III. 91, 87 NE 885].

72. Peo. v. Smith, 114 App. Div. 513, 100 NYS 259, 20 N. Y. Cr. 307 [app dism 187 N. Y. 557 mem, 80 NE 1116 mem]; State v. Hillstrom, 46 Utah 341, 357, 150 P 935.

"The defendant, without some proof tending to rebut them, may not avoid the natural and reasonable inferences deducible from proven facts by merely declining to take the stand or remaining silent. . . . Here the commission of the offense is proved be yond all doubt. That is conceded. Other facts also are shown from which natural and reasonable inferences arise that the defendant was one of, and the active, perpetrator of the offense. The probative effect of them and the natural and reasonable inferences deducible from them cannot be avoided by the defendant remaining silent or refusing to take the stand and offering no proof to rebut them. While the proven facts and inferences against him are neither strengthened nor weakened by his mere silence or failure to take the stand, yet when he, with peculiar knowledge of facts remains silent, or has evidence in his power by which he may repel or rebut such proven facts and inferences, and chooses not to avail himself of it, he must suffer the consequences of whatever the facts and inferences adduced against him tend fairly and reasonably to prove." State v. Hillstrom, supra. State v. Skillman, 76 N. J. L 74. Bess v. Com., 118 Ky. 858, 82 SW 576, 26 KyL 839.

464. 70 A 83.

The

[§ 1023] d. Failure to Call Witnesses.75 neglect or failure of accused to call as witnesses those who could testify of their own knowledge as to material facts raises no presumption of law that, if called, they would have testified unfavorably to him 76 and while the jury may consider his failure to produce or his endeavor to produce such evidence as a circumstance in determining his guilt, and may draw inferences therefrom," this doctrine is to be applied cautiously, and only where it is manifest that the evidence is in the power of accused to produce and is not accessible to the prosecution,78 the rule that no unfavorable inference can be drawn from the failure to produce or to examine a witness who is equally accessible to both parties being applicable in criminal 79 as well as in civil cases.80 A statute providing that the omission to produce evidence within a party's reach to repel a charge raises a presumption that the charge is well founded is inapplicable to criminal cases,81 especially where the evidence is clearly accessible to both the prosecution and accused.82 Where accused testifies, and the testimony of other persons who were not called as witnesses would have been of no higher class than his own, a statutory presumption that higher evidence, not produced, would have been adverse to inferior evidence which is produced is not applicable.83

The failure of the prosecution to call a witness to prove a fact material to its case raises no in

75. Cross references: Admissibility of evidence excusing failure to call witness see infra 1023. Comments by counsel on failure to produce witnesses or evidence see infra 2250.

Instructions as to presumptions arising from failure to call witness see infra 2450.

76. U S.-U. S. v. Schindler, 10 Fed. 547. 18 Blatchf. 227. Hawaii-Republic v. Anderson, 10 Hawaii 255.

Ind.-Doty v. State, 7 Blackf. 427. Iowa.-State v. Cousins, 58 Iowa 250, 12 NW 281; State v. Rosier, 55 Iowa 517, 8 NW 345. Kan.-State v. Grebe, 17 Kan. 458. Me.-State v. McAllister, 24 Me.

139.

Mich.-Peo. V. Hendrickson, Mich. 525, 19 NW 169.

53

N. J.-State v. Callahan, 76 N. J. L. 426, 69 A 957 [aff 77 N. J. L. 685, 73 A 235].

N. Y.-Peo. v. Hovey, 92 N. Y. 554; Gordon v. Peo., 33 N. Y. 501; Peo. v. Dyle, 21 N. Y. 578; Peo. v. McGovern, 105 App. Div. 296, 94 NYS 662, 19 N. Y. Cr. 99; Peo. v. Sweeney, 41 Hun 332.

N. C.-State v. Smith, 164 N. C. 475, 79 SE 979; State v. Smallwood, 75 N. C. 104.

Pa.-Com. v. McMahon, 145 Pa. 413, 22 A 971.

Va.-Taylor v. Com., 90 Va. 109, 17 SE 812; Chahoon v. Com., 20 Gratt. (61 Va.) 733.

77. Ind.-Lee v. State, 156 Ind. 541, 60 NE 299; Hinshaw v. State, 147 Ind. 334, 47 NE 157.

Mass.-Com. v. Spencer, 212 Mass. 438, 99 NE 266, AnnCas1913D 552. N. J.-State v. Callahan, 76 N. J. L. 426, 69 A 957 [aff 77 N. J. L. 685, 73 A 235].

Cr.

Okl.-Tucker v. State. 7 Okl. 634. 124 P 1134, 125 P 1089; Manning v. State. 7 Okl. Cr. 367, 123 P 1029. Va.-Chahoon v. Com., 20 Gratt. (61 Va.) 733.

And see cases supra note 76. [a] Failure of accused to produce his wife (1) is within the rule where her testimony would be material, and she is a competent witness for him (Com. v. Spencer, 212 Mass. 438, 451,

ference unfavorable to the state, unless it is shown that the evidence is within its reach.84 However, the failure of the solicitor or the prosecuting attorney to examine witnesses, cognizant of the material facts, bound over for the state, and presumably available at the trial, permits an inference of fact favorable to accused.85

86

[§ 1024] e. Attempted Bribery. An offer of a bribe by accused to the arresting officer to permit him to escape does not raise a presumption of law that accused is guilty, but is only a matter from which the jury are permitted to infer a fact when taken in connection with other evidence tending to establish guilt.87 In the absence of some proof of authority, any attempt on the part of counsel to bribe a witness to leave must be attributed to his own motion; it cannot be presumed to have been authorized by accused.89

[ 1025] f. Suppression or Fabrication of Evidence.90 The fabrication by defendant of false records and accounts," his failure to produce records and books which are under his control and not within the reach of the state and which are material to his defense,02 his destruction or concealment of papers after his arrest,93 or any attempt to destroy or to withhold evidence, may justify an inference by the jury that such evidence, if produced, would have been unfavorable to him. Some courts state the rule to be that the presumption al ways is that competent and pertinent evidence the_crime charged).

supra.

94

82. Williamson v. State, 9 Ga. A. 442, 71 SE 509; Davis v. State, 4 Ga. A. 441, 61 SE 843.

83. Peo. v. Dole, 122 Cal. 486, 55 P 581, 68 AmSR 50.

84. State v. Buckman, 74 Vt. 309, 52 A 427; State v. Smith, 71 Vt. 331, 45 A 219. And see Peo. v. Roach, 215 N. Y. 592, 109 NE 618, AnnCas 1917A 410 (failure to call as a witness a person deficient in understanding and unable to talk intelligently). 85. State v. Harris, 166 N. C. 243, 80 SE 1067. But see Norman v. State, 13 Ala. A. 337, 346, 69 S 362 (where, in a prosecution for burglary charging the taking of unfinished state examination papers from an office in the capitol, the court said: "Nor did the failure of the state to examine each person shown to have had a key to the office and to show by each of them severally that defendant did not obtain the papers through him as an accomplice creates any presumption favorable on this score to the innocence of defendant. when it appears that the state did show by those who were charged with the custody and keeping of said papers that they had been stolen").

86. Com. v. Wyoda, 44 Pa. Super.

552. 87. 552.

88.

Com. v. Wyoda, 44 Pa. Super.
Luttrell v. State, 40 Tex. Cr.

651, 51 SW 930.

89. Luttrell v. State, 40 Tex. Cr. 651. 51 SW 930.

90. Relevancy of evidence of suppression, fabrication, or destruction of evidence see infra $ 1075. 91. U. S. v. Randall, 27 F. Cas. No. 16.118, Deady 524; McMeen V. Com., 114 Pa. 300. 9 A 878.

92. U. S. v. Flemming, 18 Fed. 907: State v. Rosier, 55 Iowa 517, 8 NW 345; State v. Atkinson, 51 N. C. 65.

93. Roberson v. State, 40 Fla. 509, 24 S 474; Rex v. Ah Hoy, 17 Hawaii 749; State v. Baldwin, 70 Iowa 180, 30 NW 476; State v. Chamberlain. 89 Mo. 129, 1 SW 145.

94. State v. Dickson, 78 Mo. 438; Hubbard v. State, 65 Nebr. 805, 91 NW 869; State v. Rozum, 8 N. D. 548, 80 NW 477.

within the knowledge or control of a party, which evidence he withholds, is against his interest.95

[§ 1026] g. Possession of Property. In a prosecution for murder the possession of articles apparently taken from the deceased raises a prima facie presumption of guilt to be rebutted or explained away by the accused;96 and in many jurisdictions it is held that the possession of stolen property may raise a presumption of guilt in prosecutions for burglary, larceny, and robbery.97 presumption, however, is one of fact, not of law.98 No presumption that stolen goods were received within the county can be indulged from the mere fact of recent possession, in the face of uncontradicted evidence that the receipt was in another county.99

This

[§ 1027] h. Other Crimes. Evidence of a crime unconnected with that charged does not raise a presumption of guilt.1

[1028] i. Presence of Accused near Place of Crime. The proximity of accused to the place of the crime about the time of its commission, in connection with other circumstances, may establish, by a necessary or reasonable inference, the presumption of his participation in the crime.2

[ 1029] j. Identity of Name. The rule that identity of name furnishes presumptive evidence of identity of person 3 is not applicable where the name is a common one in the vicinity, or where it is shown that there is more than one person to whom the name may be applied." The presumption is a disputable one. Some courts have refused to assume that the employer of accused is identical with a person of the same name who has been convicted of crime."

8

[§ 1030] k. Age and Sex. Evidence that accused has a son eight years old is sufficient to raise the presumption that he is over fifteen years of age. Where, on the trial of accused, his sex was not made an issue, but was accepted by all as a conceded fact, and he repeatedly responded to masculine pronouns addressed to him, the jury were authorized to presume that he was a male person.

[§ 1031] 1. Course of Business or Conduct of Affairs. In accordance with the rule that facts which usually and regularly coexist in business affairs are assumed, in the absence of evidence to the

95. Standard Oil Co. v. State, 117 Tenn. 618, 100 SW 705, 10 LRANS 1015.

96. Wilson v. U. S., 162 U. S. 613, 16 SCt 895, 40 L. ed. 1090.

97. See Burglary §§ 145, 146; Larceny [25 Cyc 133]; Robbery [34 Cyc 1806].

98. See Burglary § 146; Larceny [25 Cyc 134].

99. Peo. v. Zimmer, 174 App. Div. 470, 160 NYS 459 [aff 220 N. Y. 597 mem, 115 NE 1047 mem].

1. Com. v. House, 223 Pa. 487, 72 A 804 [rev 36 Pa. Super. 363]. Admissibility of evidence of other crimes see infra §§ 1132-1201.

2. Lee v. State, 156 Ind. 541, 60 NE 229.

Relevancy of evidence of presence of accused near scene of crime see infra §§ 1051, 1062, 1087.

3. Nelson v. State, 151 Ala. 2, 43 S 966; Peo. v. Mullen, 7 Cal. A. 547, 94 P 867. And see Evidence. [16 Cyc 1055].

4. Peo. v. Wong Sang Lung, 3 Cal. A. 221, 84 P 843.

5. Peo. v. Wong Sang Lung, 3 Cal. A. 221, 84 P 843.

6. Peo. v. Mullen, 7 Cal. A. 547, 94 P 867.

contrary, to coexist in any particular case,10 it is presumed that letters in reply came from the person signing them;11 that a foreign corporation doing business in the state has complied with statutory requirements;12 that the drawer of a check in another's favor has deposits sufficient to pay the check, or has made arrangements to pay it; and that when a month is referred to it is a month of the current year.1

14

[§ 1032] m. Mailing of Letter. The mailing of a letter, postage prepaid, raises a presumption of receipt by the addressee.15

[§ 1033] 4. Conflicting Presumptions. Some courts state the rule broadly to be that, as between conflicting presumptions, that which is in favor of the innocence of accused prevails.16 At any rate, where two equal presumptions, one in favor of innocence and the other in favor of guilt, are presented, the one in favor of innocence is to be preferred and applied;17 and where the circumstances and lack of proof are such that the presumption of the continuance of a fact is a weak one, it is overcome by the presumption of innocence.18 Certain presumptions which might be invoked in civil actions,19 such as the presumption of delivery of an instrument arising from the fact of possession by the party to whom delivery must be made,20 or the presumption of ownership arising from possession,21 cannot be indulged in a criminal proceeding in opposition to the presumption of innocence. It is not the rule, however, that the presumption of innocence is stronger than any other presumption except that of sanity and of a knowledge of the law,22 for it has been held that it may be overcome by the presumption of a proper performance of official duty,23 or by the presumption in favor of the correctness of books of public account.24 The presumption that every man knows the law is not of such potency, in competition with the presumption of innocence, when imputed knowledge is applied to matters of civil contract, as it generally is when the act to which the ignorance relates is one denounced by the penal laws of the state.25 The question whether the presumption of innocence prevails over a conflicting presumption sometimes arises in prosecutions for seducing or enticing a woman of chaste character,26 for rape,27 for adultery, 28 for

19.

21. State v. Roswell, 153 Mo. A. 338. 133 SW 99.

22. Dunlop v. U. S., 165 U. S. 486, 17 SCt 375, 41 L. ed. 799.

23. Dunlop v. U. S., 165 U. S. 486, 17 SCt 375, 41 L. ed. 799.

24. Hemingway v. State, 68 Miss. 371, 8 S 317. But see State v. Shelley, 166 Mo. 616, 66 SW 430 (where it was held, on an indictment for impersonating an elector, that the presumption that the registration proceedings were regular could not overcome the presumption of innocence).

25. Hayes v. State, 13 Ga. A. 647, 79 SE 761. 26. See Abduction § 36; Seduction [35 Cyc 1344].

27. See Rape.

28. Howard v. State, 75 Ala. 27. 28 (where the court said: "In crim inal cases, the presumption of life may not, under all circumstances, or generally, outweigh the presumption of innocence which the law indulges. Neither presumption is absolute;

bigamy,29 and for libel or slander.30

either is disputable; and the weight to be attached to either must be determined by the facts of the particular case").

29. See Bigamy § 38.

30. See Libel and Slander [25 Cyc 580].

31. Ala.-Smith v. State, 13 Ala. A. 411, 69 S 406 [cert den 69 S 1019]. Conn.-State v. Dart, 29 Conn. 153, 76 AmD 596.

Fla-Wooldridge v. State, 49 Fla. 137. 154, 38 S 3 [cit Cyc].

Mass.-Com. v. Abbott, 130 Mass

Eng-Rex v. Burdett, 4 B. & Ald. 95, 6 ECL 404, 106 Reprint 873; Reg. V. Murphy, 8 C. & P. 297, 34 ECL 744; Rex v. Watson, 2 Stark. 116, 3 ECL 341, 11 ERC 145.

"The rules which govern the admission of evidence apply with equal authority and force in criminal and civil proceedings. There can be no safe departure from them under the influence of a feeling of tenderness or humanity for persons charged with crime." Com. v. Abbott, 130 Mass. 472, 473.

"Though the burden and measure of proof is different, the same rules govern as to the admissibility of evidence in civil suits and criminal prosecutions." Smith v. State, 13 Ala. A. 411, 414, 69 S 406.

32. Smith v. State, 13 Ala. A. 411, 69 S 406; and cases infra this note. [a] Statement of tests.-In many criminal cases, the courts have stated the same tests of relevancy as obtain in civil cases. Smith v. State, 13 Ala. A. 411, 69 S 406; Powell v. State, 5 Ala. A. 75, 59 S 530; State V. Sebastian, 81 Conn. 1, 69 Á 1054; Stone v. State, 118 Ga. 705, 45 SE 630. 98 AmSR 145; Alexander V. State, 7 Ga. A. 88, 66 SE 274; Peo. V. Pezutto, 255 Ill. 583, 99 NE 677; Peo. v. Gray, 251 Ill. 431, 96 NE 268; State v. Gebbia, 121 La. 1083, 47 S 32; Peo. v. Roach, 215 N. Y. 592, 109 NE. 618, AnnCas1917A 410; Peo. v. Furlong, 140 App. Div. 179, 125 NYS 164 [aff 201 N. Y. 511 mem, 94 NE 1096 mem]; Lane v. State, 73 Tex. Cr. 266, 164 SW 378; Belcher v. State, (Tex. Cr.) 161 SW 459.

Tests of relevancy in civil cases see Evidence [16 Cyc 1110 et seq]. 33. Billings v. State, 52 Ark. 303, 12 SW 574; Dyson v. State, 26 Miss. 362; Peo. v. Sharp, 107 N. Y. 427, 14 NE 319, 1 AmSR 851, 5 N. Y. Cr. 569 [rev 45 Hun 460, 5 N. Y. Cr. 3881; Hudson v. State, 3 Coldw. (Tenn.) 355.

While evi

39

Ill.-Peo. v. King, 276 Ill. 138, 114 NE 601. Kan.-State v. Moore, 77 Kan. 736, 95 P 409. Mass.-Com. V. Richmond, 207 Mass. 240, 93 NE 816, 20 AnnCas 1269.

Mo.-State v. Jackson, 95 Mo. 623, 8 SW 749.

N. Y.-Peo. v. Dorthy, 156 N. Y. 237, 50 NE 800 [aff 20 App. Div. 308, 46 NYS 970, 13 N. Y. Cr. 173]. Tex.-Satterwhite V. State, (Cr.) 177 SW 959; Luttrell v. State, 40 Tex. Cr. 651, 51 SW 930.

35. Ala.-Jones v. State, 174 Ala. 53, 57 S 31; Twitty v. State, 168 Ala. 59, 53 S 308; Fowler v. State, 161 Ala. 1, 49 S 788; Parker v. State, 153 Ala. 25, 45 S 248; Strickland v. State, 151 Ala. 31, 44 S 90; Sims V. State, 146 Ala. 109, 41 S 413; Teague v. State, 144 Ala. 42, 40 S 312; Hall v. State, 137 Ala. 44, 34 S 680; Sanders v. State, 134 Ala. 74, 32 S 654; Wilson v. State, 128 Ala. 17, 29 S 569; Palmer v. State, (A.) 73 S 139 [cert den 73 S 1001]; Wright V. State, (A.) 72 S 564; Graham V. State, 11 Ala. A. 113, 65 S 717; Maxwell v. State, 11 Ala. A. 53, 65 S 732; Hammock v. State, 8 Ala. A. 367, 62 S 322; Watts v. State, 8 Ala. A. 115, 63 S 15; Henley v. State, 3 Ala. A. 215, 58 S 96; Collins v. State, 3 Ala. A. 64, 58 S 80; Poellnitz v. State, 1 Ala. A. 121, 55 S 1028.

Cal.-Peo. v. Martin, 13 Cal. A. 96, 108 P 1034; Peo. v. Darr, 3 Cal. A. 50, 84 P 457.

D. C.-Penn Bridge Co. v. U. S., 29 App. 452, 10 AnnCas 719.

Fla.-West v. State, 55 Fla. 200, 46 S 93; McCall v. State, 55 Fla. 108, 46 S 321; Sylvester v. State, 46 Fla. 166, 35 S 142.

Ga.-Butler V. State, 10 Ga. A. 463, 73 SE 685.

Ill-Roberts v. Peo., 226 11. 296, 80 NE 776; Gallagher v. Peo., 211 Ill. 158, 71 NE 842 [aff 110 Ill. A. 250].

Ind.-Whitney v. State, 154 Ind. 573, 57 NE 398.

Ky. Wendling v. Com., 143 Ky. 587, 137 SW 205.

La.-State v. Blassengame, 132 La. 250, 61 S 219; State v. High, 122 La. 521, 47 S 878. Md.-Hummelshime Md. 563, 93 A 990.

V. State, 125

Miss. Harper v. State, 83 Miss. 402, 35 S 572.

Mo.-State v. Huff, 161 Mo. 459, 61 SW 900, 1104; State v. Elvins, 101 Mo. 243, 13 SW 937.

Ark.-Billings v. State, 52 Ark. 303, 12 SW 574.

S. C.-State v. Stockman, 82 S. C. 388, 64 SE 595, 129 AmSR 888.

Tenn.-Hayes v. State, 130 Tenn. 661, 172 SW 296.

Tex.-Roberts v. State, 70 Tex. Cr. 297, 156 SW 651; Joseph v. State, 59 Tex. Cr. 82, 127 SW 171; Willis v. State, (Cr.) 75 SW 790; Ballow v. State, 42 Tex. Cr. 263, 58 SW 1023; Luttrell v. State, 40 Tex. Cr. 651, 51 SW 930.

36. Competent evidence see infra §§ 1090-1112.

37. U. S.-Moffatt v. U. S., 232 Fed. 522, 146 CCA 480.

Conn.-State v. Sebastian, 81 Conn. 1, 69 A 1054.

Fla.-Thompson v. State, 58 Fla. 106, 50 S 507, 19 AnnCas 116. Ga.-Stone v. State, 118 Ga. 705, 45 SE 630, 98 AmSR 145; Alexander v. State, 7 Ga. A. 88, 66 SE 274. Ill.-Peo. v. Pezutto, 255 Ill. 583, 99 NE 677; Peo. v. Gray, 251 Ill. 431, 96 NE 268.

Kan.-State V. Turner, 82 Kan. 787, 109 P 654, 136 AmSR 129, 32 LRANS 772.

N. Y.-Peo. v. Roach, 215 N. Y. 592, 109 NE 618, AnnCas1917A 410; Peo. V. Strait, 154 N. Y. 165, 47 NE 1090.

Tex. Sweeney v. State, 65 Tex. Cr. 593, 146 SW 883.

Wash.-State v. Flanney, 61 Wash. 482, 112 P 630.

W. Va.-State v. Kinney, 26 W. Va. 141.

But see State v. Clark, 85 S. C. 273, 275, 67 SE 300 (where, although holding the fact in question to be relevant, the court said that "the relevancy of testimony is largely within the discretion of the trial judge').

38. See infra § 1087 et seq.

39. McKay v. State, 90 Nebr. 63, 132 NW 741, 39 LRANS 714, AnnCas 1913B 1034; Tijerina V. State, 45 Tex. Cr. 182, 74 SW 913.

Harmless and prejudicial error in rulings on admission of evidence see infra XX.

40. Peo. v. Martin, 19 Cal. A. 295, 125 P 919; Bonner v. State, 67 Fla. 492, 65 S 663; Kirby v. State, 44 Fla. 81, 32 S 836.

Competency of prejudicial evidence see infra § 1090.

41. Smith v. State, 183 Ala. 10, 62 S 864.

42. Smith v. State, 183 Ala. 10, 62 S 864.

43. State v. Moore, 77 Kan. 736, 95 P 409; Peo. v. Thompson, 212 N. Y. 249, 106 NE 78, LRA1915D 236, AnnCas1915D 162.

44. Funk v. U. S., 16 App. (D. C.) 478; Tully v. State, 69 Fla. 662, 68 S 934; State v. Heath, 237 Mo. 255, 141 SW 26.

45. 46.

See infra § 1037.

Moffatt v. U. S., 232 Fed. 522, 146 CCA 480; Peo. v. American Ice Co., 120 NYS 443, 452. "It is a rule of law that, where the guilt of a party depends upon

lateral facts may be admitted properly in evidence depends upon the peculiar features of the case being tried. Usually such evidence is confined to cases where the prosecution is required to resort to circumstantial evidence to connect accused with the offense.48

[§ 1035] 2. In Connection with Other Evidence.1 49 Sometimes the relevancy of evidence is made apparent by other evidence in the case;50 but of course, where certain evidence is not independently relevant and its relevancy is not made to appear by other evidence, it is not admissible.51 Evidence may be admissible on account of its being a necessary preliminary to the relevancy of other evidence,52 or by reason of its constituting a link in a chain of evidence which is admissible.53 Circum

the intent, purpose, or design with
which an act is done, collateral facts
in which the party bore a principal
part may be shown for the purpose
of establishing a guilty intent, de-
sign, purpose, or knowledge."
v. American Ice Co., supra.

47.

Peo.

State v. Moore, 77 Kan. 736,

as

49. Admissibility of evidence affected by admission or exclusion of similar evidence of adverse party see infra § 1111.

50. Ala.-Mann v. State, 134 Ala. 1, 32 S 704; Thomas v. State, 11 Ala. A. 85, 65 S 863; Rowe v. State, 2 Ala. A. 238, 57 S 72.

Ark.-Ingram v. State, 110 Ark. 538, 162 SW 66.

Conn.-State v. Williams, 90 Conn. 126, 96 A 370.

Ind. Musser 423, 61 NE 1.

V. State, 157 Ind.

Mass.--Com. V. Richmond, 207 Mass. 240, 93 NE 816, 20 AnnCas 1269.

Mont.-State v. Hall, 45 Mont. 498, 125 P 639.

N. J. State v. Hummer, 72 N. J. L. 328, 62 A 388 [aff 73 N. J. L. 714, 65 A 249]; Parks v. State, 59 N. J. L. 573, 36 A 935. Oh.-Davis v. State, 20 Oh. Cir. Ct. 430, 10 Oh. Cir. Dec. 738.

Tex.-Hampton v. State, (Cr.) 183 SW 887; Johnson v. State, (Cr.) 171 SW 211; Doss v. State, 50 Tex. Cr. 49, 95 SW 1040; Cross v. State, (Cr.) 91 SW 223; House v. State, (Cr.) 69 SW 417; Weaver v. State, 43 Tex. Cr. 340, 65 SW 534; Sebastak v. State, (Cr.) 64 SW 242.

51. Ala.-Bolton v. State, 146 Ala. 691, 40 S 409; Henson v. State, 114 Ala. 25, 22 S 127.

Ky-Wendling v. Com., 143 Ky. 587. 137 SW 205.

Mo.-State v. Speyer, 207 Mo. 540, 106 SW 505, 14 LRANS 836.

N. Y.-Peo. v. Bissert, 71 App. Div. 118, 75 NYS 630 [aff 172 N. Y. 643 mem, 65 NE 1120 mem].

N. C.-State v. Moore, 129 N. C. 494, 39 SE 626, 55 LRA 96.

Okl.-Brown v. State, 9 Okl. Cr. 382, 132 P 359.

Tex.-Gay v. State, 40 Tex. Cr. 242, 49 SW 612.

Que.-Reg. v. Riendeau, 9 Que. Q. B. 147.

Admission of irrelevant evidence on promise to show its relevancy by other evidence see infra § 2151 et seq. Inadmissibility of evidence of bad character or reputation before admission of evidence of good character see infra § 1122.

of:

52. See Evidence [16 Cyc 1117]. Evidence preliminary to admission

Confession see infra § 1510. Evidence of trailing by bloodhounds see infra § 1095. Secondary evidence see infra § 1219. Testimony of expert see infra § 1532. 53. State v. O'Conner, 4 Ind. 299.

57

54. St. Clair v. U. S., 154 U. S. 134, 14 SCt 1002, 38 L. ed. 936; Sprinkle v. U. S., 141 Fed. 811, 73 CCA 285; Ulrich v. Peo., 39 Mich. 245.

55. Holcombe v. State, 5 Ga. A. 47, 62 SE 647. But compare Buck V. State. 47 Tex. Cr. 319, 83 SW 387 (holding that irrelevant evidence is not rendered admissible merely because it was part of a conversation which had already gone in evidence without objection).

Right to introduce whole conversation where part introduced by adverse party see infra § 1111.

56. Powell v. State, 5 Ala. A. 75, 59 S 530; Peo. v. Woodson, 29 Cal. A. 531, 156 P 378.

57. U. S. v. Hougendobler, Fed. 187.

218

58. See cases infra this note. [a] Limits of rule.-(1) The rule allowing the admission of explanatory evidence does not justify the admission of evidence which, for all that appears, is immaterial and unimportant. Peo. v. Mack, 14 Cal. A. 12, 110 P 967; Com. v. Smith, 163 Mass. 411, 40 NE 189. (2) Where the proffered testimony is too indefinite to explain the conversation in question, it is properly excluded. State v. Krampe, 161 Iowa 48, 140 NW 898. (3) A mere isolated transaction not shown to be similar to the transaction in question is not admissible. Richardson v. State, 49 Tex. Cr. 291, 94 SW 1016. (4) Neither can fraud and wrongdoing be explained, mitigated, or excused by evidence that other persons are engaged in the same fraudulent and disreputable practices. Peo. V. Flechter, 44 App. Div. 199, 60 NYS 777, 14 N. Y. Cr. 328. (5) Testimony is not admissible to explain the meaning of words which the jurors could have no difficulty in understanding. Mitchell v. State, 38 Tex. Cr. 170, 41 SW 816. (6) Where a divorce bill is in evidence, accused is not entitled to introduce his answer thereto in order to explain or to

contradict the bill, the answer being a mere self-serving declaration and he being present in court and able to testify to anything contained in the answer which is material and relevant to the controversy. Peo. v. Oldfield, 173 Ill. A. 655.

59. U. S.-Crawford v. U. S., 212 U. S. 183, 29 SCt 260, 53 L. ed. 465, 15 AnnCas 392 [rev 30 App. (D. C.) 11: Perrin v. U. S., 169 Fed. 17, 94 CCA 385; Chitwood v. U. S., 153 Fed. 551, 82 CCA 505.

Ala.-Spicer v. State, 188 Ala. 9, 65 S. 972; Twitty v. State, 168 Ala. 59, 53 S 308; Pittman v. State, 148 Ala. 612, 42 S 993; Gilmore v. State, 126 Ala. 20, 28 S 595: Perry v. State, 8 Ala. A. 7, 62 S 392.

Cal.-Peo. v. Smith, 151 Cal. 619, 91 P 511.

Fla.-Alford v. State, 47 Fla. 1, 36 S 436. Ga.-Strickland Ga. v. State, 12 A. 640, 77 SE 1070.

Ill. Peo. v. Dougherty, 266 IIL 420, 107 NE 695; Peo. v. Turner, 260 Ill. 84, 102 NE 1036, AnnCas1914D 144.

Ind.-Jones v. State, 64 Ind. 473. Iowa.-State v. Rutledge, 135 Iowa 581, 113 NW 461.

Kan.-State v. Covington, 99 Kan. 151, 160 P 1009; State v. Nippert, 74 Kan. 371, 86 P 478.

Ky.-Powers v. Com., 114 Ky. 237, 70 SW 644, 1050, 71 SW 494, 24 KyL 1007, 1186; O'Brien v. Com., 89 Ky. 354, 12 SW 471, 11 KyL 534.

La.-State v. Lively, 119 La. 363, 44 S 128; State v. Williams, 111 La. 205, 35 S 521.

Mo.-State v. Wilcox, 179 SW 479; State v. Butler, 258 Mo. 430, 167 SW 509; State V. Young, 119 Mo. 495, 24 SW 1038.

Nebr.-Burlingim v. State, 61 Nebr. 276, 85 NW 76.

N. Y.-Peo. v. Van Aken, 217 N. Y. 532, 112 NE 380; Peo. v. Becker, 215 N. Y. 126, 721, 109 NE 127, 1086, AnnCas1917A 600; Peo. v. Manahan, 61 App. Div. 75, 70 NYS 108, 15 N. Y. Cr. 431.

N. D.-State v. Apley, 25 N. D. 298, 141 NW 740, 8 LRANS 269.

Okl.-Jones v. State, 10 Okl. Cr. 216, 136 P 182, 137 P 121.

Tex.-Dupree v. State, (Cr.) 190 SW 181; Smith v. State, (Cr.) 189 SW 484; Sanford v. State, (Cr.) 185 SW 22; Hampton V. State, (Cr.) 183 SW 887; Jackson v. State, (Cr.) 179 SW 711; Gillespie v. State, 73 Tex. Cr. 585, 166 SW 135; Qualls v. State, 73 Tex. Cr. 212, 165 SW 202; Qualls v. State, 71 Tex. Cr. 67, 158 SW 539; Walker v. State, 70 Tex. Cr. 84, 156 SW 206; Maclin v. State, 65 Tex. Cr. 384, 144 SW 951; Barnes v. State, 61 Tex. Cr. 37. 133 SW 887; Bowen V. State, 60 Tex. Cr. 595, 133 SW 256; Jackson v. State, 55 Tex. Cr. 79, 115 SW 262, 131 AmSR 792; Curry v. State, 50 Tex. Cr. 158. 94 SW 1058; Smith v. State, 46 Tex. Cr. 267, 81 SW 936, 108 AmSR 991; Hackney v. State, (Cr.) 74 SW 554.

Vt.-State v. Rosenberg, 88 Vt. 223, 92 A 145; State v. Manning, 75 Vt. 185, 54 A 181; State v. Shaw, 73 Vt. 149, 50 A 863.

Wash.-State v. Wilson, 83 Wash. 419, 145 P 455; State v. Armstrong. 37 Wash. 51, 79 P 490; State v. Ripley, 32 Wash. 182, 72 P 1036. Wyo.-Harris V. State, 23 Wyo. 487, 153 P 881, AnnCas1917A 1201.

[a] Illustrations.-(1) A witness may date a fact which he knows by relating it to the time when he heard of another fact, and may state, not only that he heard something, but what that something was, to let the jury see what reason he had to observe and remember. Alford v. State. 47 Fla. 1, 36 S 436. (2) Where a witness for defendant testified that a third person was near the place where the stolen horses were found.