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man murdered the first.1 Similarly, in larceny, where goods have been stolen by a person unknown, and they have been found shortly after in the possession of the prisoner, juries are always told by judges, that on this evidence alone they are bound to convict, unless they are satisfied with the prisoner's explanation of the manner in which he obtained the goods. Here the evidence consists not of statements, but of inferences from facts. But on this class of evidence it has been remarked by a learned writer,2 and the remark is universally applicable to all presumptive evidence, that it must be admitted that, like every other rule of human institution, it will sometimes fail to guide rightly. And Lord Hale mentions a case which he says was tried before a very learned and wary judge, where a man was condemned and executed for horse-stealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterwards it came out that the real thief, being closely pursued, had overtaken the man upon the road, and asked him to hold the horse for him for a few minutes. The thief escaped and the innocent man was apprehended with the horse.3 In such cases and generally it is well to bear in mind the recent language of a learned judge, that "where it is sought to establish a theory by circumstantial evidence, all the facts proved must be consistent with the theory; but there must also be some one substantial credible fact inconsistent
with the contrary." 994 Hence it has been decided lately, that since there can be no larceny of goods unless there be a felonious intention in the taker's mind at the time of the taking, a mere fraudulent conversion of goods by the taker after the taking is no evidence that he had a felonious intention at the time of taking, because such a malappropriation is consistent with the
1 Co. Litt. 6, b.
2 Russell on Crimes, by Greaves; note by editor.
3 2 Hale P. C. 289.
Great Western Railway v. Rimmell, 27 L. J. 201,
theory that he had no felonious intention at the time of the taking, but that he conceived the intention subsequently.1 At the same time it is held that where the facts do not clearly destroy the supposition that there is some evidence, they ought, at least in civil cases, to be left to a jury.2
Such, in outline, is the double basis on which the positive principles of the Law of Evidence are founded. It is compounded equally of the credibility which arises from oral testimony, and from facts which are considered to be tantamount to oral testimony. But before considering the principles of direct and presumptive evidence in detail, it will be convenient to treat of the different functions of judge and jury in the reception of evidence; of bills of exceptions; of demurrers to evidence; and of the competency of witnesses.
1 R. v. Christopher, 28 L. J. 35, M. C.
ON THE FUNCTIONS OF JUDGE AND JURY.
Ad quæstionem juris non respondent juratores: ad quæstionem facti non respondent judices. Whether there is any reasonable evidence is a question for the judge; but whether the evidence is sufficient is a question for the jury.1
THE meaning of this rule, which may be regarded as fundamental, is, that it is for the judge to decide on the character of all evidence that may be tendered, and to admit or reject it according to its consistency or inconsistency with the established rules of courts. The latest authorities, from which the above rule is drawn, have exploded the ancient form of it, by which a judge was bound to leave a case to a jury if there were any evidence for their consideration. Where there is merely a scintilla of evidence a judge ought not to leave it to a jury.2 At the same time it is a very delicate function for a judge to withdraw a case from a jury on the ground either that there is no evidence, or merely a scintilla; and it seems that when there is any sort of primâ facie presumption in a case,3 or a condition of facts which does not clearly negative the supposition that there is some evidence, the de
1 Avery v. Bowden, 26 L. J. 3, Q. B.; 28 L. T. Rep. 145; Sc: Cam. Wheelton v. Hardisty, 26 L. J. 278, Q. B.; 31 L. T. Rep. 303. 2 Per Cur. Avery v. Bowden, sup.
3 Dare v. Heathcote, 25 L. J. 245, Ex.
cision is for the jury and not for the judge.' The rule also must be limited by the nature of tribunals, and confined to such as are composed of the common law jurisdiction of judge and jury. Where the judge discharges at once his own peculiar functions and also those of the jury, then it will be his duty to estimate the credibility as well as the admissibility of evidence. Such is his position in Courts of Equity, and other jurisdictions which follow the practice of the Roman or civil law, although even here, under a recent act,2 trial by jury is annexed to the jurisdiction of the Court of Chancery, and will of course follow the rules of common law evidence in all cases of its employment. Such also it is in the new County Courts, in cases where either a jury is not allowed, or where the parties do not require the intervention of one.3 And now, by the 17 & 18 Vict. c. 125, s. 1, it is enacted, that the parties to any cause may, by consent in writing, signed by them or their attorneys, as the case may be, leave the decision of any issue of fact to the court, provided that the court, upon a rule to show cause, or a judge on summons, shall, in their or his discretion, think fit to allow such trial; or, provided the judges of the Superior Courts of Law at Westminster shall, in pursuance of the power hereinafter given to them, make any general rule or order dispensing with such allowance, either in all cases, or in any particular class or classes of cases to be defined in such rule or order; and such issue of fact may thereupon be tried and determined, and damages assessed, where necessary, in open court, either in term or vacation, by any judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other judge or judges of the same court or included in the same commission at the assizes; and the verdict of such judge or judges shall be of the same effect as the verdict of a jury,
Jewsbury v. Newbold, 26 L. J. 247, Ex. 2 21 & 22 Vict. c. 27.
39 & 10 Vict. c. 95, ss. 69, 70.
save that it shall not be questioned upon the ground of being against the weight of evidence; and the proceedings upon and after such trial, as to the power of the court or judge, the evidence and otherwise, shall be the same as in the case of trial by jury.
By this section it will appear that the procedure of the new County Courts is so far grafted on the Superior Courts as to enable the parties to an action to dispense with a jury by leave of a judge, whenever they think that a question of fact will be decided better by a full court or a single judge.
But, subject to the exceptions which have been stated, the rule, as laid down, is strictly maintained. Thus it is for the judge to explain the law to a jury; and the jury is bound to take the law to be that which the judge tells them that it is. It is for the judge to tell them how the law is applicable to the issues of fact, and to distinguish for them questions of law from those of fact; to decide on the competency of witnesses; to examine them as to their religious belief, before they are admitted to be sworn or to affirm; and to admit or reject them according to his view of the sincerity or insincerity of their belief in a Supreme Being, who will punish them, either in this life or a future life, for perjury and falsehood.1 It is for the judge to determine whether a witness be sane or insane; whether dying declarations, in cases of homicide, are admissible evidence as having been made by the deceased in the expectation of immediate death; whether secondary evidence may be substituted for primary evidence;2 whether a document come from proper custody, or is properly stamped; and generally on all conditions precedent to the reception of evidence. But when the judge has once admitted evidence, his function is complete.3 He has nothing whatever to do with the credibility of evidence: but
1 Omichund v. Barker, Willes, 538; 1 Sm. L. C. 195; 17 & 18 Vict. c. 125, s. 89.
2 Boyle v. Wiseman, 24 L. J. 284, Ex. 3 Heslop v. Chapman, 19 L. J. 49, Q. B.