Definition of evidence.. The burden of proof, as a rule, on the CHAPTER XVII. EVIDENCE. "Evidence includes all the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact the truth of which is submitted to judicial investigation " (g). In ascertaining the law on the subject of evidence in general, four or five heads present themselves under which may be ranged the chief principles which it is necessary to consider:: 1. On whom the burden of proof lies. 2. What must be proved, and what may not be proved. 3. The best evidence must always be given. 4. Hearsay is not evidence. 5. Confessions, under certain circumstances, are not admitted as evidence. 1. The burden of proof is on the prosecution as a rule. The prosecution must prove their case before prosecution. the prisoner is called upon for his defence; and this, although the offence alleged consists of an act of omission and not of commission, and therefore the prosecution have to resort to negative evidence (h). law considers a man innocent until he is shewn to be The (g) 1 Tayl. Ev. 1. (h) There is an exception to this rule when the accused pleads specially, e.g., autrefois acquit. of the rule as guilty. But the principle under discussion must not Qualifications be understood with unlimited signification. Though to the onus the burden of proof of the charge is in general on the probandi. prosecution, yet on particular points it is on the prisoner. This is markedly the case in some offences. Thus, by various Acts of Parliament it is declared penal to do certain things, or possess certain articles, without lawful excuse or authority; such excuse or authority must be proved by the accused. For example, to possess public stores marked with the broad arrow (i); to possess coining tools (j). Again, it lies on the defendant to prove that signals to smuggling vessels were not made for the purpose of giving illegal notice (); also to shew some justification for sending an unseaworthy ship to sea (). But it will be noticed that in all these cases there is something to be proved in the first instance by the prosecution-either the possession of the goods, the unseaworthiness of the ship, &c. from the And not only in the particular cases of which we In some cases an explanation have given examples, but in most cases of circum- is expected stantial evidence "there is a point (though it is impossible to determine exactly where it lies) at which the prosecutor has done all that he can reasonably be expected to do, and at which it is reasonable to ask for evidence from the prisoner in explanation, and to draw inferences unfavourable to him from its absence" (m). Thus the court will naturally expect from the prisoner an explanation of the object for which poison was purchased; so also in the case of recent possession of stolen goods. Killing is presumed to be murder until otherwise accounted for. 2. What must be proved?-All facts and circum- What must be (i) v. 38 & 39 Vict. c. 25. proved. As to time and place. stances stated in the indictment which cannot be rejected as surplusage; in other words, all the constituents of the offence. Though, as we shall see hereafter, if a more serious crime contains, as it were, a less serious one, the prisoner indicted for the former may sometimes be convicted of the latter, if the more serious circumstances cannot be established; thus on an indictment for murder, if the malice prepense be not proved, the prisoner may be convicted of manslaughter. We have seen above (n) in what cases the time and place must be correctly stated in the indictment (o); and thus we now know when they must be correctly proved. But in any case the offence must be proved to have been committed within the extent of the court's Amendment jurisdiction. Any material variance between the fact laid in the indictment and the fact proved will be fatal, unless amended (p). of variance. Facts, &c., be given in evidence. As to other offences. Closely connected with the question "What must be which may not proved?" is the question "What may not be given in evidence?" As a rule, nothing must be given in evidence which does not directly tend to prove or disprove the matter in issue. The previous or subsequent bad character of the prisoner may not be proved; unless to rebut evidence of good character (q). Thus, also, if other true bills are found against the prisoner, theoretically this is not supposed to influence the judge or jury (r). Nor may it be proved that he has a general disposition to commit the particular kind of offence. Again, it is not allowable to prove a man guilty of one felony in order to prove him guilty of another unconnected with it. In other words, if the offences are (n) v. p. 338. (o) v. p. 339. (q) v. R. v. Rowton, 34 L. J. (M.C.) 57. (r) However, as both the judge and jury are supplied with calendars, they cannot help noticing that there are other charges against the prisoner. It would be well if the jury, at least, were not so supplied; they know perfectly well without a calendar what they are to give their verdict on. distinct, evidence of one offence is, in general, inadmissible on the trial of the prisoner for another offence. But if they are connected, and form one entire transaction, other offences may be proved to shew the character of the transaction. If the evidence is admissible on general grounds as being relevant, it cannot be excluded merely because it discloses other offences (s). There are exceptions to the rule excluding evidence When evidence of other offences : of other offences may be given : (a.) In treason, other overt acts may be given in evi- In treason. dence, if they directly prove any overt acts which are laid. And in conspiracy, sedition, libel, and similar offences, wide limits are given to the reception of evidence, inasmuch as the offence can only be estimated by the surrounding circumstances (t). (b.) When it is necessary to prove the guilty knowledge To prove of the defendant, evidence may be given of his having knowledge. guilty committed the same offence before. Thus, on an indictment for uttering forged bank notes, or for uttering counterfeit coin, evidence may be given of the defendant's having at other times uttered or had in his possession other forged bank notes or counterfeit coin. So it seems that the guilty knowledge of the falsehood of a pretence may be shewn by evidence of a previous obtaining or attempting to obtain by false pretences (u). Under the Prevention of Crimes Act, 1871 (x), when In cases of receiving. proceedings are taken against a person for receiving or having in his possession stolen goods, evidence may be given at any stage of the proceedings of the defendant's having had in his possession, within the preceding twelve months, other stolen property; and evidence may also be given, under the same circumstances, of his previous conviction, within five years, of any offence involving fraud or dishonesty. (8) Rosc. 92; v. R. v. Salisbury, 5 C. & P. 155. (t) v. R. v. Hunt, 3 B. & Ald. 566; R. v. Pierce, Peake, 75. (u) R. v. Francis, L. R. 2 C. C. R. 128; 43 L. J. (M.C.) 97. (x) 34 & 35 Vict. c. 112, 8. 19. To shew intent. Evidence of good character: of bad character. Effect of evidence of character. (c.) When it is necessary to prove malice or intent on the part of the defendant, evidence of other offences may, under some circumstances, be given. Thus, in a trial for murder, evidence of former unsuccessful attempts or threats to murder would be admissible. As to evidence of good character.-Witness may be called to speak generally to the good character of the prisoner; but they may not give evidence of particular acts, unless such evidence tends directly to the disproving of some of the facts put in issue by the pleadings. The evidence must be to the general reputation for good character, and not to the witness's own opinion. The way in which the information is elicited is by questions of this sort: "How long have you known the prisoner?" "During that time, what has been his general character for sobriety, honesty, and industry?" General evidence of good character may be disproved by general evidence of bad character; but not by particular cases of misconduct. However for such purposes, previous convictions may as a rule be proved (y). It is important to notice in what way evidence of previous good character operates: "Judges frequently tell juries that evidence of character cannot be of use when the case is clearly proved, except in mitigation (or, possibly, aggravation) of punishment; but, that if they have any doubt, evidence of character is highly important" (z). (y) v. 6 & 7 Wm. 4, c. 111; 24 & 25 Vict. c. 96, s. 116; 24 & 25 Vict. c. 99, s. 37. (2) Fitz. St. 312. "This always seems to me to be equivalent to saying, 'If you think the prisoner guilty, say so; and if you think you ought to acquit him independently of the evidence of character, acquit him rather more readily because of it.' Evidence of character would thus be superfluous in every case. The true distinction is, that evidence of character may explain conduct, but cannot alter facts. I do not disbelieve a credible witness because the man whose hand he swears he saw in his neighbour's pocket has a very high character for honesty ; but I do not draw the inference from the fact which I should draw in most cases, namely, that there existed a feloneous intent. I ascribe the act to some innocent motive."-Ibid. |