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his presence; and as it is only for the sake of these inferences that the conversation can ever be admitted, I think it is better to refuse
the evidence now offered." Whole of a con- If the confession is not in writing, the whole of what the prisoner fession or ad- said must be fully stated, although it may happen that some part mission must
of it concerns other prisoners who are tried on the same indict. be stated.
ment: in such a case it is not possible to make any selection; for until the evidence has been heard, it cannot be known what it is, or to whom it relates ; and all that can be done is, to direct the jury not to take into their consideration such parts as affect the other prisoners. 1 Phil. Ev. 108. (a) But a distinction might perhaps be made in this respect, in case the confession has been reduced into writing, if that part which relates to the other prisoners is capable of being separated and detached from the rest, and can be omitted without affecting in any degree the prisoner's narration
against himself. 1 Phil. Ev. 108. (6) It must be all
If, on the part of the prosecution, a confession or admission of taken together. the defendant, made in the course of a conversation with a witness,
be brought forward, the defendant has a right to lay before the court the whole of what was said in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relates to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion: By Abbolt C. J. in The Queen's case, 2 Brod. &; Bing. 297.
“ If a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leare another; and if there be either no other evidence in the cause, or no other evidence incompatible with it, the declaration so adduced in evidence must be taken as true. But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so, and then the statement of the prisoner and the whole of the other eridence must be left to the jury for their consideration, precisely as in any other case, where one part of the evidence is contradictory to another.” By Bosanquet Serj. in Rex v. Jones, 2 Carr & P.650.
So in a case before Mr. Baron Garrow, where the prisoner Fas indicted for a larceny, and in addition to evidence of the possession of the stolen goods, the counsel for the prosecution put in the prisoner's statement, made before the magistrate, in which the prisoner asserted that he had bought the goods, the learned baron is
(a) In Rer v. Hearne, 4 C. & P. 215., Littledale J. said, “ The witness must mention the name; he is to tell us what the prisoner said; and if he left out the name, he would not do so. The prisoner did not say, “another person;' and the witness must give us the conversation just as it occurred; but I shall tell the jury that it is not evidence against the other prisoner."
(6) But Littledale J., on more than one occasion, has ruled that the whole of a written confession of one prisoner must be read, though the name of the otbers are mentioned therein. In R. v. Fletcher, 4 C. & P. 250., that learned judge said, " There has been inuch doubt upon this point; and on one of the circuits the practice has becn to omit the names. I have, however, considered it a good deal, said to have directed an acquittal, saying, that if a prosecutor used a prisoner's statement, he must take the whole of it together. Ibid.
However, the true principle appears to be, that although the confession must be taken altogether, and is evidence for the prisoner as well as against him, still the jury may, if they think proper, believe the one part of it and disbelieve the other. Thus, in Rex v. Higgins, 3 C. & P.603., the prisoner was charged with a larceny, in stealing two yards of woollen cloth, the property of John Cor. nock. It appeared that the prosecutor was at an inn at Berkeley, and that, having the piece of cloth with him, he left it on a chair in one of the rooms of the inn while he went out, and that on his return he missed the cloth. It was proved, that in about four hours after the loss of the cloth, the prisoner sold it at a place eight miles distant from Berkeley. The statement of the prisoner, made before the magistrate, was read as evidence on the part of the prosecution. In this the prisoner said, “ that the cloth was honestly bought and paid for."- Mr. Justice J. Parke (in summing up). “In this case the prosecutor has given evidence of what th prisoner said before the magistrate. Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner ; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner as well as against him ; but still, like all evidence given in any case, it is for you whether you believe it. If you believe that the prisoner really bought and paid for this cloth, as he says he did, you ought to acquit him ; but if, from his selling the cloth so very soon after it was lost, and that, too, at a distance of eight miles, you feel satisfied that the statement of his buying it is all false, then you must find him guilty.”
(See also Rex v. Clewes, 4 C. & P. 221., coram Littledale J.: Rex v. Steptoe, ibid. 397., coram Park J.)
So in a civil case, if a person says, “ that he did owe a debt, but that he had paid it,” such an admission would not be received as evidence to prove the debt, without being also evidence of the payment. Per Hale C. J. Anonymous case, cited 12 Vin. Abr. tit. Ev. A. 23. What he has said in his own favour may perhaps weigh very little with the jury, while his admission against himself may be conclusive ; however, it is reasonable, that if any part of his statement is admitted in evidence, the whole should be admitted. (See also Smith v. Blandy, Ry. & Mood. N. P.C. 257.)
As analogous to the former part of this section, concerning Acts and do admissions and confessions by the defendant himself, it may be clarations of co. proper in this place to mention the subject of acts and declarations conspirators ard of co-conspirators and of agents. How far the acts and words of of agents. one conspirator are evidence against the others, will be found discussed in another part of this work – Vol. III. (Criminal Law,) tit. Conspiracy, p. 179, 180. (See also 2 Stark. Ev., tit.
and though my opinion was once different, I am now satisfied that the whole of the letter must be read." See also the same point ruled by the same Judge in R. v. Clewes, ibid. 221., and by Alderson J. in Rex v. Hall, Lewin. C. C. 110., and Denman C. J., Rer v. Foster, ibid. However, in Rex v. Barston, Lewin. C. C. 110., on Rer v. Fletcher being cited, J. Parke J. said, “I know that is Mr. Justice Litiledale's opinion, but I do not like it. I do not think it the fair way.”
Agent of de
Conspiracy.) With respect to the statements and acts of agents, it fendant. was decided, on the impeachment of Ld. Melville, by the House of
Lords, that a receipt given in the regular and official forn by Mr. Douglas (who, it was proved, had been appointed by Ld. Merille to be his attorney, to transact the business of his office of treasurer of the navy, and to receive all necessary sums of money, and to sign receipts for the same), was admissible in evidence against Ld. Merille, to establish this single fact, that a person appointed by him, as his paymaster, did receive from the exchequer a certain sum of money in the ordinary course of business. 24 Hou. St. Tr. 746. In The Queen's case, 2 Brod. & Bing. 302., it was said by Abbott C. J., in delivering the opinion of the judges, that it would not be allowable on the part of the prosecution, to give evidence that an agent, who had been proved to have been employed by the defendant to procure evidence for the detence, but who had not been examined as a witness, offered a bribe to some third person, who also had not been examined. This was not the question proposed by the House of Lords to
the judges, but the converse of it, considered by the Chief A rest of prose- Justice, for the purpose of shewing the grounds of the determin. catur.
ation of the judges. The actual question proposed for their consideration was, as to the competency of proving, on the trial of a criminal prosecution, certain acts supposed to have been done by the agent of the prosecutor. And they determined that similar proof, as to the conduct of the prosecutor's agent in offering a bribe, was inadmissible. The question, the Lord Chief Justice observed, regarded the act of an agent addressed to a person not examined as a witness in support of the indictment, the proffered proof not apparently connecting itself with any particular matter deposed by the witnesses who had been examined in support of the indictment, and leaving therefore those witnesses unaffected by the proposed proof, otherwise than by way of inference and conclusion. His Lordship concluded by observing, that notwithstanding the opinion he had delivered, he was by no means prepared to say, that in no case, and under no circumstances appearing at a trial, it might not be fit and proper for a judge to allow proof of this nature to be submitted for the consideration of a jury; and that the inclination of every judge was to admit, rather than ex
clude, the offered proof. Admission of A letter written to the plaintiff's attorney, before action brought, attarney before by the attorney who afterwards appears in the cause for the deaction brougbi. fendant, is not evidence of a fact admitted therein, without further
proof that the defendant authorized the communication. Wagstafi
v. Hilson, 4 B. & Adol. 339. Examinations The subject of the examination of prisoners before justices of of prisoner be the peace, under the provisions of the stat. 7 G. 4 c. 64. (repeal. fure magistrate ing the former statutes of P.8 M.), will be found at large in another
volume of this work – Vol. II. (Criminal Law,) tit. Eraminston, p. 196. et seq.; and in the same place the authorities have been col lected respecting the admissibility of such examinations in evidence
against the prisoner at his trial. How proved It seems therefore only requisite in this place to mention some late
decisions respecting the mode of proving such examinations. It is laid down by Ld. Hale, 2 P.C. 52. 284., that in proving examina
tions of prisoners and informations of witnesses taken before justices of the peace, oath is to be made in court by the justice or his clerk that the examinations or informations were truly taken. However, in practice, this doctrine does not appear to have been acted upon. Thus in Rex v. Isabella Hopes, 7 C. & P. 136., the examination was allowed by Vaughan and Patteson Js. to be proved by the constable, who swore that he heard the prisoner make her statement, and saw the magistrate take down in writing what she said ; and that it was then read over to her by the magistrate, and she put her mark to it, after which he (the witness) put his name as attesting the mark, and the magistrate signed the examination as taken before him. So in Rex v. Foster, 7 C. & P. 148., on a trial before Bosanquet J. and Alderson B., it was proposed to read in evidence against the prisoner a statement made before the magistrate, and returned by him in writing. The only evidence in court, in addition to proof that it was the examination of the particular prisoner, was that ofa person who knew the magistrate's handwriting, by which the examination was authenticated. The counsel for the prisoner referred to the doctrine laid down by Ld. Hale on the subject. The judges intimated an opinion that the statement might be read on proof of the magistrate's handwriting, on the ground that the law required the magistrate to certify that it had been duly taken ; and proving that he had signed it, was sufficient to shew that; and Mr. Baron Alderson likened it to the case of an affidavit, where proof of the magistrate's handwriting was evidence of the party's having been sworn. Their lordships, in reference to Ld. Hale's doctrine, said, it could not be intended that the magistrate or his clerk must be called, on account of their office; but that any one who could shew that the examination was duly taken would be sufficient.
But where, upon an indictment for murder, it was proposed to prove the prisoner's examination before the coroner, by evidence of the handwriting of the latter, and by calling a person who was present at the examination, it appearing that there were certain interlineations in the examinations, Ld. Lyndhurst said, that he thought the clerk who had taken down the examination ought to be called; and the evidence was withdrawn. Brogan's case, Lanc. Sum. ass. 183+, MS. Rosc. Cr. Ev. 49.
The provisions of the stat. 7 G.4. c. 64., relating to the taking Depositions. of depositions of witnesses in criminal cases before Justices of the Peace and Coroners, are stated at large in a later part of this work -Vol. III. (Criminal Law,) tit. Eramination, p. 196. et seq. ; where also the authorities have been collected respecting the proper mode of taking such depositions and their admissibility in evidence at their trial.
III. DE the Beneral Rules of Evidence. (1.) of presumptive evidence. (2.) The best possible evidence must be produced. (3.) Of hearsay evidence. (4.) Of the proof of negative averments. (5.) The evidence must be confined to the points in issue. (6.) What allegations must be proved : and herewith of surplusage
III.(1.) De presumptibe Evidence. Presumptive or When a fact itself cannot be proved, that which comes nearest circumstantial
to the proof of the fact is the proof of the circumstances that neevidence.
cessarily or usually attend such facts, and are called presumptions, not proofs; for they stand instead of the proofs till the contrary be proved. Gilb. Ev. 142. (a) In criminal cases, from the secret man. ner in which guilty actions are generally done, it is seldom possible to give direct evidence of the commission of the offence charged, 1.6
. to produce a witness who saw the act committed ; and therefore recourse must necessarily be had to presumptive (or as it is often called circumstantial) evidence, i. e. the direct evidence of circumstances from which the commission of the act may be presumed by the jury. (6) There is no evidence between civil and criminai cases, with reference to the modes of proof by direct or circunstantial evidence, except that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in the latter, which affect life and liberty.
i Phill. Ev. 155. (c) Instances of Proof of the possession of land or the receipt of rent is prima fase presumptions in evidence of seisin in fee: B.N. P. 103. A deed or other writing civil cases.
thirty years old is presumed to have been duly executed, provided some account be given of the place where found, c. B. N. P. 255. The licence of a lord to inclose waste may be presumed after twelve or fourteen years' possession, the steward of the lord having been cognizant of it. Doe v. Wilson, 11 East, is.
(a) As if a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword; this is a violent presumption that de is the murderer ; for the blood, the weapon, and the hasty fight
, are all the necessary concomitants to such horrid facts; and the next proof to the sighed the fact itself is the proof of those circumstances that do necessarily attend such fact. Gilb. Ev. 142.
(6) Presumptions are often divided into three sorts, – violent, probabile, and light. Co. Lit. 6.b. 3 Black. Comm. 372. But such a classification secins albgether useless, and the distinction to amount to nothing more than that in se case the presumptive evidence may be very strong, in another less so, and in other very weak.
(c) Perhaps strong circumstantial evidence in cases of crimes, committed for the most part in secret, is the most satisfactory of any from whence to draw the conclusion of guilt ; for men may be seduced to perjury by many base moins to which the secret nature of the offence may sometimes afford a temptation ; ** it can scarcely happen that many circumstances, especially if they be such as which the accuser could have no control, forming altogether the links of a tras. action, should all unfortunately concur to fix the presumption of guilt on 2 > dividual, and yet such a conclusion be erroneous. 1 East. P. C. c. 5. 8 9. p.833