must be given.

3. The best evidence must always be given. That is Best evidence if it is possible to be had; if not, then inferior evidence will be admitted. But before this inferior (or secondary) evidence is let in, the absence of the better evidence must be accounted for. By this is meant that merely substitutionary evidence, that is such as indicates more original sources of information, must not be received so long as the original evidence is attainable. It does not imply that weaker proofs (which are not substitutionary) may not be selected instead of stronger ones. Thus, an act may be equally proved by a written instrument, and also by some one who saw it; both these modes of proof are primary.

written

The most common application of this rule is in the The case of case of written instruments. It is plain that the best documents. evidence of the contents of a written document is the writing itself, and therefore before a copy, or parol evidence of its contents can be received, the absence of the original instrument must be accounted for by proving that it is lost or destroyed, or that it is in the possession of the opposite party, and that he has had reasonable notice to produce it. If once secondary evidence is admitted, any proof may be given, as there are no degrees of secondary evidence; thus, if an original deed cannot be produced, parol evidence of its contents may be given, although there is an attested copy in existence. But for the sake of convenience, copies may be given, in evidence of all records, other than those of the court requiring proof of them, of journals of either House of Parliament, and generally of the official documents of other courts, and parish registers, entries in corporation books and books of public companies relating to things public and general.

Entries in bankers' books may be proved by examined copies verified on oath or by affidavit (a).

(a) Banker' Books Evidence Act, 1879, 42 Vict. c. II.

Hearsay,
no evidence.

Hearsay,

4. Hearsay is no evidence.

Hearsay (derivative, or second-hand, 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 witness himself, but which rests also, in part, on the veracity and competence of some other person (b).

The reasons usually assigned for the rejection of why rejected. hearsay evidence are two: (a) that the original statement or writing was not made on oath; (b) that the party affected has not the opportunity of crossexamining the originator of it. Its reception would also have the effect of lengthening the proceedings When it may without any corresponding advantage. We have seen

be given in evidence.

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 (c):—

i. To prove the death of a person beyond the sea.

ii. To prove a prescription, a custom; matters of pedigree; reputation on questions of public or general right.

iii. 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.

iv. 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 declaration refers to the injury which is the cause of death.

(b) 1 Ph. Ev. 185.

(c) "All the exceptions to the rule are based upon the principle that the special circumstances which establish them supply a sanction to the statement and exclude the possibility of calling the person who made it."-Fitz. St. 319.

v. Statements made by deceased persons, if against their interest; or entries made by them in the regular course of their duty or employment.

vi. 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 (d); for example, what was said to a surgeon immediately after an assault (e).

vii. When the sayings, &c., of another are part of the res gesta, 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, of a mob, are good evidence (f). In fact, these are not strictly instances of hearsay evidence at all, but the original proofs of what took place.

ill or deceased persons may be read at

(g), the trial.

It will be convenient here to notice the rule that if Depositions of 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 were taken in the presence of the accused, and that he had an opportunity of cross-examining the witness (h).

5. Confessions, under certain circumstances, are not Confessions, admitted as evidence.

in evidence.

Confessions, if received at all in evidence, are re- when admitted ceived with great caution, not only from the consideration that, owing to insanity or other reason, they may be false, but also there is the danger of their not having been correctly reported. The general rule is, that to be admissible they must be free and voluntary. What

(d) 1 Tayl. Ev. 496.

(e) Aveson v. Lord Kinnaird, 6 East, 198.

(f) v. 21 How. St. Tr. 514, 529.

(g) R. v. Scaife, 2 Den. 281.

(h) 11 & 12 Vict. c. 42, s. 17. So, also, as to depositions on behalf of the accused, 30 & 31 Vict. c. 35, s. 3.

Against whom confessions are admitted in evidence.

Confessions before magistrates.

amounts to a free and voluntary confession does not clearly appear. "Thus much is certain, that no confession by the prisoner is admissible which is made in consequence of any inducement of a temporal nature, having reference to the charge against the prisoner, held out by a person in authority; and on the whole, the tendency of the present decisions seems to be to admit any confessions which do not come within this proposition" (i).

Confessionary evidence is admissible only against the person who makes it, though, of course, if the jury hear anything in it against accomplices, it will be apt to prejudice them against such co-defendants. In the same way, if a confession is improperly blurted out where it is not admissible, it cannot but have weight with the jury.

With regard to confessions or statements before the magistrate, it is provided by statute (j) that after the examination of all the witnesses for the prosecution, one of the magistrates shall have all the depositions against the accused read to him, and shall then say to him these words, or words to the like effect: "Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial." The magistrate gives a further caution that the accused has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to induce him to make any confession or admission of his guilt. But this second caution is necessary only when it appears that some inducement has been holden out to the accused (). The statement of the prisoner

(i) Rosc. 41. See also R. v. Fennell, 7 Q. B. D. 147; 50 L. J. (M.C.) 126; 44 L. T. (N.S.) 687; 29 W. R. 742.

(j) 11 & 12 Vict. c. 42, s. 18.

(k) R. v. Sansome, 19 L. J. (M.C.) 143.

thus made before the magistrate is read at the trial from the depositions without further proof.

bound to

It will be remembered that a witness is not com- Witness not pelled to answer questions which tend to criminate criminate himself. By several statutes, though they are obliged himself. to answer the questions, the evidence given by witnesses is expressly declared not available against them on a criminal charge, for example, under the Corrupt Practices Prevention Act, 1863 (l).

CIRCUMSTANTIAL AND PRESUMPTIVE EVIDENCE.

It is usual to distinguish two kinds of evidence, Circumstantial Direct or Positive, Circumstantial or Presumptive. By from direct distinguished the former we mean the evidence given by a person evidence. who testifies to having actually seen, &c., the act constituting the crime committed; the proof applying immediately to the factum probandum, without any intervening process. All other evidence is termed indirect, presumptive, or circumstantial; being evidence of facts from which the fact of the crime may be inferred; it applies to collateral facts which contribute to the conclusion that the principal fact exists. Thus, if a witness proves that he saw the prisoner cut A.'s throat, or put his hand into B.'s pocket, draw out his purse, and run away, the evidence is direct. But if the witness proves that the prisoner was seen going to B.'s house at 4 o'clock, that there was no other person in the house at the time, that at 4.15 B.'s throat was found cut, and that a blood-stained knife was found concealed in B.'s locked box, the evidence is circumstantial.

It is difficult to draw the line between direct and Fineness of the distinction. circumstantial evidence. This will be seen more readily from an example. A. stabs B. in three places;

(l) 26 Vict. c. 29, s. 7. For other examples, v. Tayl. Ev. 1226.