suspicion of the prisoner's guilt, but the rules of law must be applied to all men alike. It is a practice, which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material circumstance. Now, in my opinion, the corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime will always be able to relate the facts of the case; and if the confirmation be only of the truth of that history, without identifying the persons, that is really no corroboration at all. If a man were to break open a house and put a knife to your throat and steal your property, it would be no corroboration that he had stated all the facts correctly: that he had described how the person did put the knife to the throat and did steal the property: it would not at all tend to show that the person accused participated in it. Here you find that the prisoner and the accomplice are seen together at the public-house. If they were found together under circumstances that were extraordinary, and where the prisoner was not likely to be unless there were concert, it might be something. But he lives within one hundred and fifty yards, and there is nothing extraordinary in his being there: and he left when they were shutting up the house. It is perfectly natural that he should have been there, and have left when he did. The single circumstance is, that the prisoner was seen in a house which he frequents, where he may be seen once or twice a week: there the case ends against him; all the rest depends on the evidence of the accomplice. The danger is that when a man is fixed, and knows that his own guilt is detected, he purchases impunity by falsely accusing others. I would suggest to you that the circumstances are too slight to justify you in acting on this evidence." The prisoner was acquitted. Where several prisoners are indicted together, and the evi

dence of an accomplice is only corroborated as to some of them, the jury ought to acquit the others (a).

The jury may convict on the uncorroborated evidence of an accomplice (b); and it is only a rule of practice, and not of law, for a judge to tell a jury that they ought not to convict on the uncorroborated evidence of an accomplice (a). In R. v. Jones (c), Lord Ellenborough said:"No one can seriously doubt that a conviction is strictly legal, though it proceed upon the evidence of an accomplice only. Judges, in their discretion, will advise a jury not to believe an accomplice, unless he is confirmed; but if he is believed, his testimony is unquestionably sufficient to establish the facts to which he deposes. It is allowed that he is a competent witness; and the consequence is inevitable, that if credit is given to his evidence, it requires no confirmation from another witness." He referred also to a case where four men were convicted on the evidence of an accomplice who was confirmed only as to his evidence against three of the prisoners.

On an indictment for receiving stolen goods the principal thief is a competent witness (d). And where several are indicted, the prosecutor may, by leave of the court, take a verdict of acquittal as to one or more, and call them as witnesses against the remaining prisoners (e). It appears also that an accomplice, who is himself charged on a separate indictment, is a competent witness for a prisoner (ƒ); and a prisoner, who has pleaded guilty, may be called, before sentence, for or against his co-defendants (g). So where the evidence against one of several prisoners is slight, the judge may direct an acquittal in order to enable the others to call

(a) R. v. Stubbs, Dears. 555; cf. In re Meunier, (1894) 2 Q. B. 415.

(b) R. v. Hastings, 7 C. & P. 152.

(e) 2 Camp. 133.

(d) R. v. Patram, 2 East, P. C. 782.

(e) R. v. Owen, 9 C. & P. 83. (f) 2 Hale, P. C. 280.

(g) R. v. George, C. & M. 111; R. v. Hincks, 1 Den. 84.

him as a witness; and it seems that this may be done without taking a verdict against the prisoner who is called as a witness (h); though it would, as a general rule, be judicious, where the accomplice is indicted with the prisoner, to dispose of the indictment by acquitting or convicting the prisoner, before he is called as a witness, so that the temptation to strain the truth should be as slight as possible (i). Although the contrary was once held, it has now been decided by the full Court of Criminal Appeal that, if prisoners are indicted and tried together, neither is a competent witness for the other (k).

(h) Windsor v. Reg., 7 B. & S. 360.

Per Blackburn, J., 6 B. & S. 186. (k) R. v. Payne, 1 C. C. R. 349.

CHAPTER IV.

THE RULE THAT THE BEST EVIDENCE MUST BE GIVEN PRIMARY AND SECONDARY EVIDENCE.

Ir is an inflexible rule that

The best evidence must be given.

This rule may also be stated thus:

The law requires that evidence which is the best attainable of its class.

Meaning of rule. The meaning of this rule is that no such evidence shall be brought, as ex naturâ rei supposes still greater evidence behind in the parties' own possession or power (a). The rule is founded on the presumption that if inferior evidence is offered, when evidence of a better and more original nature is attainable, the substitution of the former for the latter arises either from fraud, or from gross negligence, which is tantamount to fraud. Thus, if a copy of a deed or will be tendered, while the original exists and is producible, it is reasonable to assume that the person who might have produced the original, but who omits to produce it, has some interested motive for tendering a copy in its place. Here the deed or will itself is the best and primary evidence of its contents. The copy is secondary, and however indisputably it may be authenticated, it is inadmissible in evidence as long as the original can be produced, unless its production is dispensed with. Where secondary evidence of a document is admitted at any stage of an action without

(a) Gilbert on Evidence, p. 5.

objection by the party against whom it is tendered, it is too late for such party to object to it at any later stage (b).

What is primary and what is secondary evidence? This it is sometimes difficult to determine, and where both oral and written proofs of a fact are producible, the character of the fact must be investigated in order to ascertain which species of evidence is the best. The questions to be asked for this purpose are, which species is most original in its nature, and which is most likely to convey accurate information as to the matter in dispute. According to its proximity to or remoteness from the highest sources of moral certainty, evidence will be either primary or secondary.

In the case of written contracts. It is a rule that when a contract has been reduced to writing, the writing, as long as it exists, is the best and only evidence of the terms of the contract. Oral evidence is admissible to explain, but not to contradict it. But if the writing be destroyed; or if it cannot be found after diligent search; or if an adverse party, in whose hands it is, refuses to produce it, after having received due notice; then it is considered fair and reasonable, that any competent witness who is acquainted with the terms of the contract should be allowed to give oral evidence of it, or that a copy of it should be produced.

Depositions of witnesses in criminal cases. So, too, if a prisoner has been committed for trial on the oral depositions of witnesses, it would be manifestly unfair to admit their depositions, even when reduced to writing and certified by the committing magistrate, to be given in evidence against the prisoner, as long as the original witnesses can be produced before a jury, confronted with the prisoner, and subjected to the cross-examination of the latter, or his counsel; and therefore such depositions are secondary evi

(b) Robinson v. Davies, 5 Q. B. D. 26.