proof. But this rule does not extend to allegations, necessary or unnecessary, which are descriptive of the identity of that which is legally essential to the charge. As, for instance, an indictment for stealing a black horse, will not be supported by proof that the horse was of some other colour; for the allegation of colour is descriptive of that which is legally essential to the offence, and cannot be rejected. 2 Stark. Evid. 1531. So, upon an indictment (upon the repealed stat. 57 G. 3, c. 90) for being found armed with intent to destroy game in a certain wood, called the Old Walk, in the occupation of J. J., it was holden, it appearing that the wood had always been called the Long Walk, and never the Old Walk, that, although it was unnecessary to state the name of the close when the occupation was stated, yet, being stated, it was material, and could not be rejected. R. v. Owen, R. & M. 118. And where an indictment for stealing a bank note described it as signed by A. H. for the Governor and Company of the Bank of England, it was holden by the judges that there could be no conviction without evidence of the signature of A. H. R. v. Craven, R. & R. 14.

Matter of defence, &c.]-Matter of defence, when given in evidence under the general issue (and which is almost invariably the case, see ante, p. 87), is proved by parol evidence, or by records or other written evidence, according to the rules laid down in the next chapter; when pleaded, and put in issue by the replication, it is also proved in the same manner, but subject to the same rules as to variance, that have just now been laid down with respect to indictments. And the same, as to matter of replication, &c.

Matter not alleged, in what cases]-The general rule upon this subject, in criminal as well as civil cases, is, that nothing shall be given in evidence, which does not directly tend to the proof or disproof of the matter in issue. Thus, it is not allowable upon the trial of an indictment to shew that the prisoner has a general disposition to commit the same kind of offence as that for which he stands indicted. Upon an indictment for an infamous crime, an admission by the defendant that he had committed such an offence at another time, with another person, and had a tendency to such practices, ought not to be received. R. v. Cole, 1 Phil. Ev. 170. In fact, there is no exception to this rule, in criminal cases, although there are certainly some cases which seem to be so. In high treason, by stat. 7 & 8 W. 3, c. 3, s. 8, no evidence shall be admitted or given of any overt act that is not expressly laid in the indictment; yet this does not prevent overt acts not laid from being given in evidence, if they be direct proof of any of the overt acts which are laid; R. v. Rookwood, 4 St. Tr. 661, 697, Holt, 683, 615. and see 4 St.

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Tr. 722, 731. 6 Id. 282, 284. Fost. 9, 22. R. v. Watson, 2 Stark. 134; and if any one overt act be proved against the defendant in the proper county, acts of treason tending to prove such overt act, though done in a foreign county, may be given in evidence. Fost. 9, 22. 8 St. Tr. 218. 9 Id. 580, 558-562. 4 Id. 627, 655. 6 Id. 292. 8 Mod. 91. Or, if the treason consist of a conspiracy, any act of the defendant's accomplices, done in furtherance of the common design, although not laid as an overt act in the indictment, may be given in evidence, provided it be direct proof of an overt act laid. R. v. Hardy, 1 East, P. C. 98, 99. So, in ordinary cases of conspiracy, acts done by some of the conspirators in the county in which the offence is laid being proved, acts done by others of the conspirators in other counties may be given in evidence. R. v. Bowes, 4 East, 171, n. And in an indictment against persons for a conspiracy to carry on the business of common cheats, evidence was admitted of the defendants' having made false representations to other tradesmen, besides those named in the indictment. R. v. Roberts, 1 Camp. 400. In R. v. Hunt and others, 3 B. & A. 566, upon an indictment for conspiring and unlawfully meeting for the purpose of exciting disaffection and discontent among his Majesty's subjects at Manchester, it was holden that the previous conduct of a portion of the assembly, in training, &c., and in assaulting persons whom they called spies, was competent evidence as to the general character and intention of the meeting, although the effect of it as to each particular defendant was a distinct matter for the consideration of the jury. It was also holden, that it was competent to shew, as against Hunt, (who, though a stranger except by political connection, had been invited to preside as chairman at the meeting), that at a similar meeting in another place, holden for an object professedly similar, certain resolutions had been proposed by that person; it being in its nature a declaration of his sentiments and views on the particular subject of such meetings, and of the topics there discussed. But the court held that evidence of the misconduct of the military and others, in the subsequent dispersion of the meeting, was properly refused by the judge at the trial, as irrelevant, and having no bearing upon the intention and objects of the meeting, which intention and objects obviously existed previously to the alleged misconduct of the military, attempted to be given in evidence. With a view to prove the identity of the defendant, it may be shewn that other goods not included in the indictment, which were stolen from the premises at the same time, were found in his possession. So, it may be shewn upon an indictment for arson, that property taken out of the house at the time of the firing was afterwards found secreted in the possession of the prisoner. R. v. Richman, 2 East, P. C. 1035. And where several felonies are connected together, and form one entire

transaction, upon an indictment for one, the other may be proved to shew the character of the transaction. R. v. Ellis, 6 B. & C. 145. See R. v. Egerton, R. & R. 375.

Where a guilty knowledge upon the part of the defendant is to be proved, the prosecutor is allowed to give in evidence other instances of his having committed the same offence for which he is now indicted. As, for instance, upon an indictment for disposing of and putting away a forged bank note, knowing it to be forged, the prosecutor may give evidence (see R. v. Millard, R. & R. 245) of other forged notes having been uttered by the prisoner, at other times, before or after the commission of the offence for which he is indicted, R. v. Wylie, 1 N. R. 93, 2 Leach, 983. R. v. Tatersal, 1 N. R. 93. R. v. Ball, R. & R. 132, 1 Camp. 324, or that he had other forged notes of the same kind in his possession, R. v. Hough, R. & R. 120, or, as it would seem, of a different kind; Bayl. on Bills, 450; in order to prove, or at least to raise a presumption of, his knowledge that the note in question was forged. So, upon an indictment for uttering counterfeit money, it is competent to the prosecutor to prove that other pieces of such counterfeit money were found upon the defendant, or were uttered by him at different times. 1 N. R. 95. For the same reason, proof of the defendant's conduct in such other utterings, as, for example, that he passed by different names, is admissible. Bayl. on Bills, 449. Upon an indictment for receiving stolen goods, evidence may be given of the receipt of several articles at different times, for the purpose of shewing a guilty knowledge. R. v. Dunn, R. & M. 148.

And nearly the same rule applies, where it is requisite for the prosecutor to prove malice upon the part of the defendant. As, for instance, upon an indictment for murder, former attempts of the defendant to assassinate the deceased would not only be receivable in evidence, but would be very strong presumptive proof of malice prepense. See R. v. Voke, R. & R. 531, ante, p. 97. So, for the same reason, former menaces of the defendant, or expressions of vindictive feeling towards the deceased, or in fact the existence of any motive likely to instigate him to the commission of the offence in question, are also in such a case receivable in evidence. In a civil action for defamation, the plaintiff is always allowed, in order to prove the malice of the defendant, to give in evidence other words spoken by the defendant, besides those set out in the declaration; Warne v. Chadwell, 2 Stark. 457. Rustel v. Macquister, 1 Camp. 49; and the same in actions for libel. Lee v. Huson, Peake, N. P. C. 74. 166.

Upon an indictment for a rape, the defendant may give general evidence of the woman's character for want of chastity, or he may prove that she had before been criminally connected with him, but not that she had been criminally connected with others; R. v. Hodgson, R. & R. 211; and the same, upon an

indictment with intent to commit a rape. R. v. Clarke, 1 Stark. 243. See R. v. Barker, 3 C. & P. 589. Upon an indictment for libel, the defendant has been allowed to give in evidence such other parts of the same publication, as were fairly connected with the libel in question, and upon the same topic, in order to disprove the motive imputed to him by the indictment, and to shew the fair construction that should be put upon the passages therein set out. R. v. Lambert & Perry, 2 Camp. 398. And in Horne Tooke's case, (1 East, P. C. 31), it being proved upon the part of the prosecution that the defendant had distributed several publications advocating republican principles, and which was offered in evidence in order to induce a presumption that parliamentary reform (which was expected to be set up by the prisoner in his defence) was a mere pretext to cover his treasonable purposes: the defendant, in order to rebut that presumption, was allowed to give in evidence a book upon parliamentary reform, written by him and published twelve years before.

The prisoner also will be allowed to call witnesses to speak generally as to his character, but not to give evidence of particular actions, unless such evidence tend directly to the disproof of some of the facts put in issue by the pleadings.

These several cases now mentioned, when carefully considered, will be found to be, not exceptions to, but rather illustrations of, the rule above mentioned, namely, that nothing shall be given in evidence, which does not tend directly to the proof or disproof of the matter in issue. In most of them, the evidence admitted tended directly to the proof of the knowledge or intention of the defendant, at the time of the commission of the offence, and which was a material ingredient in the crime imputed to him. In the case of rape, above mentioned, the evidence tended to shew the great improbability of any resistance upon the part of the woman, and also, that the woman was not entitled to credit as a witness. As to evidence of the defendant's character, it can be of avail only in doubtful cases; where the probabilities of the defendant's guilt on the one side, and the probabilities of his innocence on the other, are nearly equal, satisfactory testimony as to his general good character for honesty or humanity may have the effect of raising a well founded presumption in the minds of the jurors, that a man of such a character could not have been the perpetrator of the larceny or murder imputed to him; and in this sense it may be deemed evidence tending to the disproof of the matter in issue.

Where the offence is stated in general terms in the indictment, as, for instance, where the defendant is indicted as a common barrator or common scold, or for keeping a common gambling house, or bawdy house, (see ante, p. 37), the prosecutor is allowed of course to give evidence of all the particular facts which constitute the offence thus generally stated in the indictment.

CHAPTER II.

THE MANNER OF PROVING THE MATTERS PUT IN ISSUE.

EVIDENCE may be classed under three heads: admissions or confessions, presumptions, and proofs. These we shall consider fully in the several sections of this chapter. But before we enter into a particular consideration of the subject, it may be necessary first to notice one or two rules relating to evidence generally.

First, it is a general rule, that the best evidence the nature of the case will admit of, must be produced, if it be possible to be had; but if not possible, then the next best evidence that can be had shall be allowed. For if it appear that there is any better evidence existing than that which is produced, the very nonproduction of it creates a presumption that, if produced, it would have detected some falsehood which at present is concealed. 3 Bl. Com. 368. Gilb. Ev. 16. R. v. James, 1 Show. 397, Carth. 220, Holt, 284, 1 Salk. 281. Williams v. E. 1. Company, 3 East, 192. See Arch. Pl. & Ev. 353-357. Therefore, before secondary evidence is offered, a foundation for it must first be laid, by proving that better evidence cannot be obtained. Thus, for instance, the best evidence of the contents of a deed or other written instrument is the written instrument itself; secondary evidence, a copy, or parol evidence of the contents of the original. Therefore, before a copy of a written instrument, or parol evidence of its contents, can be received as proof, 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 so strict is the rule in this respect, that not even the declarations of the party against whom it is to be used are admissible for this purpose, unless the non-production of the instrument be accounted for. Bloxam v. Elsie, 1 R. & M. N. P. 187.

Records, however, are seemingly an exception to this rule, for they are proved by exemplifications or other copies, in all cases, unless they be records of the court in which they are to be produced, and the matter of record form the gist of the pleading to be proved. This exception has been adopted from necessity; requiring the record itself to be given in evidence, would be productive of great inconvenience, for it probably might be