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19the information and adjudication, without negativing them in evi
dence. (a) “ The question is,” said Ld. Ellenborough in that case, “ upon whom the onus probandi lies; whether it lies upon the person who affirms a qualification to prove the affirmative, or upon the informer who denies any qualification to prove the negative. There are, I think, about ten different heads of qualification enumerated in the statute, to which the proof may be applied; and according to the argument of to-day, every person who lays an information of this sort is bound to give satisfactory evidence before the magistrates to negative the defendant's qualification upon each of those several heads. The argument really comes to this, that there would be a moral impossibility of ever convicting upon such
an information.” (6) 5 M. & S. 209. Rex v. Han
In the more recent case of Rex v. Hanson, MS. Paley on “Convictions” by Dowling, p. 45. n. (1), the rule was again considered and laid down by the court of K. B. In that case there had been a conviction by two justices for selling ale without an excise licence. The information negatived the defendant's having a licence; but there was no evidence to support this negative averment; the only evidence to support the conviction being that the defendant had in fact sold ale. The question was, whether the informer was bound to give evidence to negative the existence of a licence. In support of the conviction it was contended, that such evidence was undecessary, and that it lay upon the defendant to prove that he had a licence; for it is a rule, both of the civil and the common law, that a man is not bound to prove a negative allegation ; and her s. Turner was cited as an express authority on the point. Abbott C. J. said, “ I am of opinion, that the conviction is right. It seems to me, that this case is not distinguishable from Rex v. Turnet. It is a general rule, that the proof of the affirmative lies upon the party who is to sustain it. The prosecutor, in general, is not called upon to prove negatively all that is stated in the information as matter of disqualification. In Rex v. Turner, all the learned judges concur in that principle. I concur in all the observations upon which the judgment of the court in that case was founded ; and I think every one of them is applicable in principle to this. The general principle, and the justice of the case, is here against the defendant. It is urged, that if we decide against the defendant, we shall open the door to a great deal of inconvenience: that by no means follows: this man might have produced his licence without any possible inconvenience, which would at once have relieved him from all liability to penalties. Probably the whole inquiry before the magistrates was as to the fact of selling the ale, and that nothing was said about the licence ; but, however, I think, by the general rule. the informer was not bound to sustain in evidence ihe negative averment, that the defendant had not a licence. I do not mean to
(a) See also Spieres v. Parker, 1 T. R. 144., and Jelfs v. Ballard, 1 B. & P. 468. by Heaih J. In Rer v. Stone, 1 East. 639., the court of King's Bench were equally divided on the point.
(6) It is expressly provided in the new Game Act (1 & 2 W. 4. c. 32. $ 421 see post, tit. Game, Vol. II. p. 611., that it shall not be necessary, in any proceed ing against any person under this act, to negative by evidence any certificax, Ticence, consent, authority, or other matter of exception or defence; but the pary seeking to avail himself of any such certificate, licence, consent, authority, or other matter of exception or defence, shall be bound to prove the same.
say that there may not be cases which may be fit to be considered Rex v. Hanson. as exceptions to that general rule ; there is no general rule to which there may not be exceptions; all I mean to say is, that this is not one of those exceptions. The party thus called upon to answer for an offence against the excise laws, sustains not the slightest inconvenience from the general rule ; for he can immediately produce his licence; whereas, if the case is taken the other way, the informer is put to considerable inconvenience. Discussions may arise before the magistrates, whether the evidence produced is proper to sustain the negative ; whether a book should be produced, examined copy,
many other questions of that sort ; whereas none can arise when the defendant himself produces his licence. This, therefore, not being one of the excepted cases, but a case falling directly within the general rule, I am of opinion, that judgment must be given for the crown.” Holroyd and Best Js. concurred. - Bayley J. was absent. (a)
In Willis's case it is said to have been agreed that, although an Willis's case. indictment states that the prisoner, “then or at any time before not being a contractor with or authorized by the principal officers or commissioners of our said lord the king, of the navy, ordnance, &c. for the use of our said lord the king, to make any stores of war, &c.," yet, that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must shew, if the truth be so, that he is within the exception in the statute. 1 Hawk. P. C. c. 89. § 17. by the editor.
Upon the same principle, a late case, The Apothecaries' Com- Apothecarics' pany v. Bentley, Ry. & Mood. N. P. C. 159. S.C. 1 Carr. & P. Company v. 538., was decided. That was an action for a penalty on the sta- Bentley. tute 55 G. 3. c. 194., for practising as an apothecary without having obtained the certificate required by that act. All the counts in the declaration contained the allegation that the defendant did act and practice as an apothecary, &c. without having obtained such cer. tificate as by the said act is directed. No evidence was offered by the plaintiffs to shew that the defendant had not obtained his certificate. The plaintiffs having closed their case, the counsel for the defendant submitted that there must be a nonsuit. But Abbott C. J. said, “I am of opinion that the affirmative must be proved by the defendant. I think that it being a negative, the plaintiffs are not bound to prove it; but that it rests with the defendant to establish his liaving a certificate."
III. (5.) Evidence confined to point in 31ssue. No evidence can be admitted which does not tend to prove or Evidence to disprove the issue joined. (b) In criminal proceedings the neces- be confined to sity is stronger, if possible, than in civil, of strictly enforcing the point in issue. rule, that the evidence is to be confined to the points in issue ; for where a prisoner is charged with an offence it is of the utmost importance to him, that the facts laid before the jury should con
(a) So in Rer v. Smith, 3 Burr. 1475., which was a conviction for trading as a hawker and pedlar without a licence, it was held that the onus of proving the licence lay on the defendant.
(6) See antè, p. 1051. 1067., with respect to examining a witness as to facts, which are only relevant inasmuch as they tend to shew the witness unworthy of credit.
sist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to
It is, therefore, a general rule, that the facts proved must be apply to the
strictly relevant to the particular charge; and have no reference single transac- to any conduct of the prisoner unconnected with such charge. tion charged. Therefore, it is not allowable to shew, on the trial of an indictment,
that the prisoner has a general disposition to commit the same kind of offence as that for which he stands indicted. Thus, in a prosecution for an infamous crime, an admission by the prisoner, that he had committed such an offence at another time, and with another person, and that he has a tendency to such practices, ought not to be received in evidence: Rex v. Cole, M. T. 1810, by all the judges, M. S. 1 Phil. Ev. 170. (a) Where upon an indiciment for a burglary and stealing goods, the prosecutor failed to prove any nocturnal breaking, or any larceny, subsequent to the time when the prisoners entered the house, which must have been after three o'clock in the afternoon of the day on which the offence was charged to have been committed, it was proposed to abandon the charge of burglary, and to give evidence of a larceny by the prisoners
, of some of the articles mentioned in the indictment, though committed before three o'clock on the day on which they were charged to have entered the house; but the court refused to receive the evi
dence, on the ground that it was a distinct transaction; Rex v. Acts of pri
Vandercomb and Abbott, 2 Leach, 708. The prisoners were soner charged therefore acquitted on this charge ; but were afterwards indicted in indictment
again for the other offence, and convicted. In treason, no alone can be
overt act amounting to a distinct independent charge, though falling proved.
under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment; Fost. 245. But still, if it
conduce to the proof of any of the overt acts which are laid, it may When larceny be admitted as evidence of such overt acts: Ibid. So, though it of goods not
is not allowable, in general, to inquire into any other stealing of laid in indict- goods besides that specified in the indictment, yet, for the purpose ment may be proved.
of ascertaining the identity of the person, it is often important to shew that other goods, which had been upon an adjoining part of the premises, were stolen in the same night, and afterwards found in the prisoner's possession. This is strong evidence of the prisoner having been near the prosecutor's house on the night of the robbery; and in that point of view it is material : 1 Phil. Er. 139. Thus, also, on an indictment for the crime of arson, it be shewn that property, which had been taken out of the house at the time of the firing, was afterwards found secreted in the possession of the prisoner: Rickman's case, 2 East, P.C. c. 21. $ 11.
Where several are proved to have been engaged in the same design, the acts and declarations of one in furtherance of that design may be received in evidence against another, though not present: Rex v. Stone, 6 T. R. 528. (); and it seems to make no
Acts of other persons engaged in the same design
(a) In an action against the acceptor. a bill of exchange, where the defence was, that the acceptance was forged, evidence that the party who negotiated the bill had been guilty of other forgeries, was held inadmissible. Viney 1 Esp. 292. (See also Balcetti v. Serani, Peake N. P. C. 141. Graf v. Bet l'eake's Ev. 104.)
(6) See also for examples of this rule, Rer v. Standley and others, Ruse of Rs 305. Rex v. Gogerley and others, ibid. 343. Rer v. Bingley and others, ibid. 445
difference as to the admissibility of the act or declaration of a con- may be proved spirator against a defendant, whether the former bé indicted or whether they not, or tried or not, with the latter; for the making one a co
are indicted or defendant does not make his acts or declarations evidence against another, any more than they were before; the principle upon which they are admissible at all is, that the act or declaration of one is that of both united in one common design, a principle which is wholly unaffected by the consideration of their being jointly indicted : 2 Stark. Ev. 411. Neither does it appear to be material what the nature of the indictment is, provided the offence involve a conspiracy. Thus, upon an indictment for murder, if it appeared that others, together with the prisoner, conspired to perpetrate the crime, the act of one done in pursuance of that intention would be evidence against the rest : Ibid.
Where several different felonies are alleged in the same indict. Prosecutor ment, or the evidence appears to refer to more than one distinct contined to unconnected felony, it is usual for the judge, in his discretion, to proof of one call the counsel for the prosecution to select one felony, and
felony. upon to confine the evidence to that particular charge: Young v. The King, 3 T. R. 106., by Buller J. Rex v. Jones, 3 Campb. 132. Rex v. Kingston, 8 East, 41. (a) Thus, on an indictment against a receiver for receiving several articles, if it appear that they were received at different times, the prosecutor may be put to his election : Rex v. Dunn and Smith, Ry. & Mood. C. C. R. 148.: though, on an indictment for stealing several articles, it is no ground for confining the prosecutor's proof to some one of the articles, that they might have been, and probably were, stolen at different times, if they might have been stolen all at once: Ibid.
Generally speaking, it is not competent to a prosecutor to prove Proving one a man guilty of one felony by proving him guilty of another uncon- felony by nected felony: but where several felonies are connected together, shewing priand form part of one entire transaction, then the one is evidence soner guilty of to shew the character of the other. In the case of Rex v. Ellis, another fe6 B. & C. 145., which was an indictment for feloniously stealing where the fesix shillings, the following facts were proved :— The prisoner was lonies are cona shopman in the employ of the prosecutrix, and his honesty being nected. suspected, on a particular day the son of the prosecutrix put seven shillings, one half-crown, and one sixpence, marked in a particular manner, into a till in the shop, in which there was no other silver at that time, and the prisoner was watched by the prosecutrix's son, who from time to time went in and out of the shop, occasionally looking into and examining the till, while customers came into the shop and purchased goods. Upon the first examination of the till it contained 11s. 6d. ; after that, the son of the prosecutrix received one shilling from a customer and put it into the till; afterwards another person paid one shilling to the prisoner, who was observed to go with it to the till — to put his hand in, and withdraw it clenched. He then left the counter, and was seen to raise his hand clenched to his waistcoat pocket. The till was examined by the witness, and 11s. 6d, were found in it instead of 13s. 6d., which ought to have been there. The prosecutor was proceeding to prove other acts of the prisoner, in going to the till and taking money, when Wilde Serjt. objected, that evidence of
(a) But this rule does not in general extend to misdemeanors.
one felony had already been given, and that the prosecutrix ought not to be allowed to prove several felonies. The learned judge overruled the objection, and the son of the prosecutrix proved that, upon each of several inspections of the till after the prisoner had opened it, he found a smaller sum than ought to have been there. The prisoner having been found guilty, application was made to the court of K. B. (a) for a rule for staying the judgment, on the ground that the prosecutor ought to have been contined in proof to one felony: but the court was of opinion that it was in the discretion of the judge to confine the prosecutor to the proof of one felony, or to allow him to give evidence of other acts, which were all part of one entire transaction. And Mr. Justice Holroyd mentioned the case of Rex v. Egerton, tried before him (S.C. Russ. & Ry. 375.), where, upon an indictment for robbing the prosecutor of a coat, the robbery having been committed by the prisoner's threatening to charge the prosecutor with an unnatural crime, he received evidence of a second ineffectual attempt to obtain a ll
. note from the prosecutor by similar threats, but reserved the point for the consideration of the judges, and they were of opinion that the evidence was admissible, to shew that the prisoner was guilty of the former transaction.
In the case of Rex v. Wylie, 1 New Rep. 94. S.C. 2 Leach, 983., Ld. Ellenborough said, he remembered a case where a man committed three burglaries in one night; he took a shirt at one place, and left it at another; and they were all so connected that the court went through the history of the three different burglaries
Again, in Rex v. Winkworth, 4 C. & P. 444., upon an indictment for a robbery, it appeared that the prisoners went with a mob to the prosecutor's house, and that one of the mob went op to the prosecutor, and very civilly, and, as the prosecutor then believed, with a good intention, advised him to give them something to get rid of them, and prevent mischief; and that he, in consequence of this, gave them the money which was the subject of the present indictment. To shew that this was not bona fide advice to the prosecutor, but in reality a mere mode of robbing him, the counsel for the prosecution proposed to give evidence of other demands of money made by the same mob at other houses, at different periods of the same day, when some of the prisoners were present. And they cited the case of Rex v. Ellis, supra
. Mr. Justice J.Parke (having conferred with Mr. Baron Vaughan and Mr. Justice Alderson) said: “We are of opinion that what was done by the mob before and after the particular transaction at the prosecutor's house, but in the course of the same day, and when any of the prisoners were present, may be given in evidence." Mr. Justice J. Parke afterwards stated, that the learned judges of this commission had communicated with Ld. Tenterden, and that bis lordship concurred with them in this opinion.
Where it becomes necessary to prove a guilty knowledge on the part of the prisoner, evidence of other offences committed by him, though not charged in the indictment, is admissible for that purpose. Thus, upon an indictment for uttering a forged bank note, knowing it to be forged, evidence may be given of other forged
(a) The indictment had been removed into that court by certiorari from the city court of Ereter.
Evidence of other acts of prisoner as proof of his guilty knowledge.