Evidence of other acts of prisoner as proof of his guilty knowledge.

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 confined 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 14. 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 up to the prosecutor, and very civilly, and, as the prosecutor then believed, with a good intention, advised him to give them some thing 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 bond 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, suprà. 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 his 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 Exeter.

notes having been uttered by the prisoner, in order to shew his knowledge of the forgery. (See post, Vol. III. (Criminal Law), tit. Forgery, p. 288, 289.) 1 New Rep. 94. S. C. 2 Leach, 983. So the possession of other forged instruments may be proved as evidence of a guilty knowledge: ibid. Rex v. Hough, Russ. & Ry. 120.; but there must be regular proof that they are forged, Rex v. Millard, Russ. & Ry. 385. It has been questioned, whether it may be proved that the prisoner had uttered forged bills or notes of a different kind: Bayley on Bills, 4th edit. 450. But in Rex v. Balls, H. T. 1835, MS., the twelve judges held, that, on an indictment for uttering forged Polish notes, it was admissible, as proof of the scienter, to shew that the prisoner had offered a short time before the imputed offence to make some forged Austrian notes. So on counts for forging Polish notes, it was held to be admissible to shew that the prisoner had had in his possession, a year before, plates for the engraving of other Polish notes different from those which were the subject of the prosecution. (See Addenda to Vol. III. p. 1008.) Where the second uttering was made the subject of a distinct indictment, Vaughan B. held, that it could not be given in evidence to shew a guilty knowledge: Rex v. Smith, 2 Carr. & P. 633. But in Kirkwood's case, Lewin. C. C. 103., Littledale admitted the evidence. In Hodgson's case, ibid., Hullock B. considered the point as unsettled. So on a prosecution for uttering counterfeit money, it is the practice, for the purpose of shewing a guilty knowledge, to receive proof of more than one uttering committed by the party about the same time, though only one uttering be charged in the indictment. (See post, Vol. III. (Criminal Law,) tit. Coin, p. 153.) So, though on an indictment against a receiver for receiving several stolen articles, if it be proved that they were received at several times, the prosecutor may be put to his election, yet evidence may be given of all the receipts for the purpose of proving guilty knowledge: Rex v. Dunn and another, Ry. Mood. C. C. R. 148. If it be material to shew the intent with which the act charged was done, evidence may be given of a distinct offence not laid in the indictment. Thus, upon an indictment for maliciously shooting, if it be questionable whether the shooting was by accident or design, proof may be given that the prisoner at another time intentionally shot at the same person: Rex v. Yoke, Russ. & Ry. 531. On a prosecution for a libel, the publication of other libels, by the defendant, not laid in the indictment may be given in evidence, to shew quo animo the defendant published that in question: Stuart v. Lovell, 2 Stark. N. P. C. 95. In the trial of an indictment for murder, former grudges and antecedent menaces are admitted to be given in evidence as proof of the prisoner's malice against the deceased: 1 Phil. Ev. 160. (a) And it has been considered, in a case where three persons were charged with uttering a forged note, that other acts done by all of them jointly, or any of them separately, shortly before the offence, may be given in evidence to shew the confederacy and common purpose, although

(a) So the declarations of the prisoner, and the seditious language used by him, are clearly admissible in evidence on an indictment for high treason, explaining his conduct, and shewing the nature and object of the conspiracy. Ibid. 167. Rer v. Watson, 2 Stark. N. P. C 134.

Proof of other acts and declarations of prisoner as evidence for him of his inno

cence.

such acts constitute distinct felonies: Rex v. Tattersall, MS. Bayley J. On an indictment for sending a threatening letter, prior and subsequent letters, from the prisoner to the party threatened, may be given in evidence, as explanatory of the meaning and intent of the particular letter on which the indictment is framed: Robinson's case, 2 Leach, 749. 2 East, P. C. c. 23. § 2. p. 1110. Ante, Vol. III. (Criminal Law,) tit. Letters (Threatening,) p. 503.

As other acts and declarations of the prisoner, besides those charged in the indictment, may be given in evidence on the part of the prosecution, so he himself in his defence may in some cases prove other acts and declarations of his own, as evidence of his innocence. Thus, on a charge of murder, expressions of good will, and acts of kindness, on the part of the prisoner towards the deceased, are always considered important evidence, as shewing what was his general disposition towards the deceased, from which the jury may be led to conclude, that his intention could not have been what the charge imputes: 1 Phill. Ev. 166. So in the case of Rex v. Lambert and Perry, 2 Campb. 400., where the supposed libel, which was the subject of prosecution, was contained in a paragraph of a newspaper, of which the defendants were the printer and proprietor, it was held by Ld. Ellenborough, that the defendants had a right to have read in evidence any other paragraph in the same newspaper, connected with the subject of the passage charged as libellous (although disjoined from it by extraneous matter, and printed in a different character), for the purpose of shewing the intention and mind of the defendants with respect to the specific paragraph laid in the indictment. And as, in trials for conspiracies, whatever the prisoner may have done or said, at any meeting alleged to be held in pursuance of conspiracy, is admissible in evidence against him, on the part of the prosecution; so, on the other hand, any other part of his conduct at the same meetings, will be allowed to be proved, on his behalf; for the intention and design of the party, at a particular time, are best explained by a complete view of every part of his conduct at that time, and not merely from the proof of a single and insulated act or declaration : 1 Phill. Ev. 170. In the case of Walker and others, who were tried for a conspiracy to overthrow the govern ment, and evidence was produced, on the part of the prosecution, to shew that the conspiracy existed, and was brought into overt act at meetings in the presence of Walker, the counsel for the prisoners were allowed to ask a witness whether, at any of these times, he had ever heard Walker utter any word inconsistent opposed, with the duty of a good subject? The question was but held by Mr. Justice Heath to be admissible. The prisoner's counsel were also allowed in the same case, to inquire into the general declarations of the prisoner at these meetings, whether the witness had heard him say any thing that had a tendency to disturb the peace of the kingdom; and questions to the same effect were put to many other witnesses in succession. Ibid.

On the trial of Hardy for high treason, where the overt act charged was, that the prisoner, for the purpose of accomplishing the treason of compassing the king's death, did conspire with others to call a convention of the people, in order that the convention might depose the king; the counsel for the prisoner

were

prisoner must

allowed to ask a witness whether, before the time of the convention, which was imputed to the prisoner, he had ever heard from him what his objects were, and whether he had at all mixed himself in that business. 24 How. St. Tr. 1097. On an indictment for a conspiracy, the letters of one of two defendants to the other are, under certain circumstances, admissible in evidence in his favour, to shew that he was the dupe of the other, and not himself a participator in the fraud. Rex v. Whitehead, 1 Carr. & P. 67. But the better opinion seems to be, that in order to make such But such acts other acts or declarations of the prisoner applicable to his defence, and declarait must be shewn that they are in some way connected with the tions of the facts proved against him. Rex v. Lambert and Perry, 2 Campb. Be connected 400. Lord George Gordon's case, 21 How. St. Tr. 542. Hanson's with the facts case, 31 How. St. Tr. 4281. 1 Phill. Ev. 71. In the case of proved against Horne Tooke and others, however, for high treason, several publi- him. cations having been given in evidence on the part of the crown, containing republican doctrines and opinions, the distribution of which had been promoted by the prisoners, during the period assigned in the indictment for the existence of the conspiracy, the prisoner was allowed to read in his defence various extracts from works which he had published at a former period of his life; and these the jury were permitted to carry along with them when they retired to consider of their verdict. 1 East, P. C. c. 11. § 8. p. 61. 25 How. St. Tr. 545. But the propriety of allowing such a defence has been questioned by very high authority. By Lord Ellenborough in Rex v. Lambert and Perry, 2 Campb. 400. It may also happen, that from the nature of the offence charged, it is impossible to confine the evidence to proof of a single transaction. Thus, on an indictment against several defendants for a cumulative inconspiracy to cause themselves to be believed persons of large stances are neproperty, for the purpose of defrauding tradesmen, Lord Ellen- cessary to borough allowed the prosecutor to prove various instances of their prove the of giving false representations of their circumstances; Rex v. Ro- fence charged. berts, 1 Campb. 400.; observing that the indictment was for a conspiracy to carry on the business of common cheats, and cumulative instances were necessary to prove the offence. The same sort of evidence, said his lordship, is allowed on an indictment for barratry (a); and in a prosecution for high treason itself, the gravest of all offences.

The rule is clear and general, that no question can be put which is not relevant to the issue (unless for the purpose of impeaching the credit of a witness); but the applicability of the rule must obviously depend upon the particular circumstances of each individual case, and will not admit of a general demonstration. It may, however, be useful to state some criminal cases, where questions as to the relevancy of evidence have arisen and been decided. On the trial of an indictment against several persons for a conspiracy, in unlawfully assembling for the purpose of exciting discontent and disaffection, it would be irrelevant to inquire, on behalf of the defendants, what the conduct of those employed to disperse the meeting may have been at the time of the dispersion,

(a) The prosecutor must, before the trial, give the defendant a note of the particular acts of barratry he intends to prove against him; and will not be at liberty to give evidence of any other. (Post, Vol. III. (Criminal Law,) p. 79.)

Evidence of

several transactions when

Cases as to the relevancy of

evidence.

Unlawful assembly.

Hunt's case.

Articles found in prisoner's house after his apprehension.

Writings found after

prisoner's apprehension.

if no evidence has been previously offered on the part of the prosecution, as to the conduct of the meeting at that time or subsequently; for the conduct of the dispersers of the meeting can have no bearing on the intention and object of the meeting itself; in other words, it is irrelevant to the matters in issue. Rer v. Hunt, 3 B. & A. 566. 577. 1 Phil. Ev. 169. (See also Redford v. Burley, 3 Stark. N. P. C. 87, 88. 91.) In such a prosecution, as the material points for the consideration of the jury are, the general character and intention of the assembly, and the particular case of each defendant as connected with that general character, it would be relevant to prove, on the part of the prosecution, that bodies of men came from different parts of the country to attend the meet. ing, arranged and organized in the same manner, and acting in concert. It would be relevant also to shew, that early on the day of the meeting, in a spot at some distance from the place of meeting (from which very spot a body of men came afterwards to the place of meeting), a great number of persons so organized had assembled, and had there conducted themselves in a disloyal, riotous, or seditious manner. Ibid. Further, it would be relevant, on such a trial, to produce in evidence certain resolutions, which had been proposed, by one of the defendants, at a large assembly in another part of the country, very recently held for the same professed object and purpose, as were avowed by the meeting in question, that defendant having acted at both meetings as president or chairman: for, in a question of intention, as this is, it is most clearly relevant to shew, against that individual, that, at a similar meeting, held for an object professedly similar, such matters had passed under his immediate auspices. Rex v. Hunt, 3 B. & A. 566.577. (See also Redford v. Burley, 3 Stark. N. P. C. 87.88. 91.)

In cases of treason and felony, it may be proved that articles were found secreted in the prisoner's house, after his apprehension. In Watson's case, 2 Stark. N. P. C. 137., evidence was admitted that a quantity of pikes had been found secreted in the prisoner's house subsequently to his apprehension. (a) With respect to writings found after the prisoner's apprehension, it appears to have been laid down in Hardy's case, 24 How. St. Tr. 452., that papers found in the possession of conspirators with the prisoner, but subsequently to his apprehension, ought not to be read against him, unless there was evidence to shew their previous existence; for otherwise there was no evidence that the prisoner was a party to it. And on a prosecution against Hevey, Beatty, and M'Carthy, 1 Leach, 235., for a conspiracy, it was held that some letters which were directed to the prisoners, and intercepted at the post-office after their apprehension, were

(a) Lord Ellenborough, in giving his opinion on this point, cited a case from recollection, where a butler to a banker at Malton had been taken up upon suspicion of having committed a great robbery; the prisoner had been seen near the privy, and this circumstance having excited suspicion in the minds of the counsel who considered the case during the assizes at York, at their instance, search was made, and in the privy all the plate was found. The plate was produced, and the prisoner was in consequence convicted; he had been separated from the custody of the plate, since he had been confined in York castle, for some time: but no doubt was entertained as to the admissibility of the evidence. Abbott C. J. also observed, that an assize had scarcely ever occurred, where it did not happen that part of the evidence against a prisoner consisted of proof that the stolen property was found in his house after his apprehension.