gamy, where the first marriage was by licence, and the prisoner appeared to be under age at the time, it was held that it lay on the prosecutor to prove the consent of parents, required by the marriage act, in order to shew the marriage valid, and not on the prisoner to prove the negative in his defence. Rex v. Butler, Russ. & Ry.C.C.R. 61. Rex v. Morton, ibid. 19. in note to Rex v. James.

nocence some

ments.

In criminal proceedings, however, where negative averments The presumpusually impute a breach of the law to the defendant, the operation tion of law in of this rule is sometimes counteracted by the presumption of law in favour of infavour of innocence; which presumption, making, as it were, a times drives primâ facie case in the affirmative for the defendant, drives the the prosecutor prosecutor to prove the negative. (a) Thus on an information to prove the against Ld. Halifax for refusing to deliver up the rolls of the Au- negative averditor of the Exchequer, the court of exchequer put the plaintiff upon proving the negative that he did not deliver them: for a person shall be presumed duly to have executed his office till the contrary appear. Bull. N. P. 298. On an indictment for obtaining money, &c. under false pretences, the prosecutor must prove the averments negativing the pretences. In an action for the recovery of penalties under the Hawker's and Pedlar's Act, against a person charged with having sold goods by auction in a place in which he was not a householder, some proof of this negative, namely of the defendant not being a householder in the place, would be necessary on the part of the plaintiff. 1 Phill. Ev. 185, 186. On the trial of an indictment on the statute 42 G. 3. c. 107. § 1. (repealed by stat. 7 & 8 G. 4. c. 27.), which makes it felony to course deer on an inclosed ground, "without the consent of the owner of the deer," it ought to appear from the evidence produced on the part of the prosecution, that the owner had not given his consent. Rex v. Rogers, 2 Campb. 654. (See also Rex v. Hazy and Collins, 2 Carr. & P. 458.; and Rex v. Argent, Ry. & Mood. C. C. R. 154., antè, p. 1105, 1106.; the former of which cases was an indictment for lopping and topping an ash tree without the consent of the owner, and the latter an indictment for taking fish out of a pond without the consent of the owner). (b)

But where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favour of innocence is not allowed to operate in the manner just mentioned: but the general rule as above stated applies, viz. that he who asserts the affirmative is to prove it, and not he who avers the negative. Thus upon a conviction under the repealed stat. 5 Ann. c. 14, §2., against a carrier for having game in his possession, it was held, in the case of Rex v. Turner, 5 M. & S. 206., sufficient that the qualifications mentioned in stat. 22 & 23 Car. 2. c. 25. were negatived in

(a) The same rule applies in civil proceedings. The principal cases on the subject are, Monke v. Butler, 1 Roll. Rep. 83. 3 East, 199. Rex v. Hawkins, S. C. 3 Wils. 355. Williams 10 East, 216. Powell v. Milbank, 2 W. Bl. 851. v. East India Company, 3 East, 193. Rex v. Twyning, 2 B. & A. 386.

(b) According to the report of the case of Rex v. Rogers, Mr. Justice Lawrence seems to have thought it necessary to call the owner of the deer, for the purpose of disproving his consent; and the owner not being called, the jury were directed to find a verdict of acquittal. But this decision has been overruled; and it is now established, that the non-consent may be inferred from the circumstances unper which the act was done, or proved by the agents of the owner: antè, p. 1105.

But this presumption does when the affirmative is peculiarly within the knowledge of

not operate,

the party
charged.
Rex v. Turner.

14the information and adjudication, without negativing them in evidence. (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." (b) 5 M. & S. 209.

Rex v. Han

son.

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 unnecessary, 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 Rex v. 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. Turner. 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 princi ple, 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 magis trates 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 the 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 Heath J. In Rex v. Stone, 1 East. 639., the court of King's Bench were equally divided on the point.

(b) It is expressly provided in the new Game Act (1 & 2 W. 4. c. 32. § 42). see post, tit. Game, Vol. II. p. 611., that it shall not be necessary, in any proceeding against any person under this act, to negative by evidence any certificats, Ticence, consent, authority, or other matter of exception or defence; but the pay 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, or an examined copy, and 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 certificate 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 having a certificate."

III. (5.) Evidence confined to Point in Issue.

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 Rex 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.

(b) 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.

Evidence must apply to the single transaction charged.

Acts of prisoner charged in indictment

alone can be proved.

When larceny

of goods not laid in indictment may be proved.

Acts of other persons engaged in the same design

sist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to

answer.

It is, therefore, a general rule, that the facts proved must be strictly relevant to the particular charge; and have no reference to any conduct of the prisoner unconnected with such charge. 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 indictment 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 evidence, on the ground that it was a distinct transaction; Rex v. Vandercomb and Abbott, 2 Leach, 708. The prisoners were therefore acquitted on this charge; but were afterwards indicted again for the other offence, and convicted. In treason, no overt act amounting to a distinct independent charge, though falling 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 be admitted as evidence of such overt acts: Ibid. So, though it is not allowable, in general, to inquire into any other stealing of goods besides that specified in the indictment, yet, for the purpose of ascertaining the identity of the person, it is often important to shew that other goods, which had been upon an adjoining part 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. 159. Thus, also, on an indictment for the crime of arson, it may 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.

p. 1035.

of

be

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. (b); and it seems to make no

(a) In an action against the acceptor of 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 v. Barr 1 Esp. 292. (See also Balcetti V. Serani, Peake N. P. C. 141. Graft v. Berta, Peake's Ev. 104.)

(6) See also for examples of this rule, Rex v. Standley and others, Russ. & Ry 305. Rex v. Gogerley and others, ibid. 343. Rex v. Bingley and others, ibid. 446.

are indicted or

not.

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 codefendant 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.

Proving one felony by shewing prisoner guilty of another felony. where the felonies are connected.

Where several different felonies are alleged in the same indict- Prosecutor ment, or the evidence appears to refer to more than one distinct confined to unconnected felony, it is usual for the judge, in his discretion, to proof of one felony. call upon the counsel for the prosecution to select one felony, and 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. Rexv. 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 a man guilty of one felony by proving him guilty of another unconnected felony but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to shew the character of the other. In the case of Rex v. Ellis, 6 B. & C. 145., which was an indictment for feloniously stealing six shillings, the following facts were proved :- The prisoner was a shopman in the employ of the prosecutrix, and his honesty being 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.