the indictment, and it will be no ground either of demurrer, or arrest of judgment. In such cases, however, the prosecution may be compelled to elect on which charge he will proceed. But in the case of offenses, inferior to felony, the practice of calling on the prosecutor to elect on which charge he will proceed does not exist, and the prosecutor may give evidence of several libels, assaults, etc., upon the same indictment whether they be on the same or different persons. In State v. Kibby, 7 Mo. 317, it was held that the joinder of several offenses in the same indictment in different counts is no cause of demurrer or arrest of judgment. When the crimes alleged are misdemeanors the court will not compel the prosecutor to elect on which one he will proceed. To the same effect are State v. Jackson, 17 Mo. 544, 59 Am. Dec. 281; State v. Nelson, 19 Mo. 393. In State v. Fletcher, 18 Mo. 426, it was declared that, "in cases of misdemeanors the joinder of several offenses will not in general vitiate in any stage of the prosecution. For, in offenses inferior to felony, the practice of quashing the indictment, or calling upon the prosecutor to elect on which charge he will proceed, does not exist. But on the contrary it is the constant practice to receive evidence of several libels and assaults upon the same indictment. It was formerly held that assaults upon more than one individual could not be joined in the same proceeding, but this is now exploded. And this practice is approved in State v. Myers, 20 Mo. 410.

§ 157. Evidence of Other Offenses Should be Cautiously Admitted. It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another. For this reason, it is essential to the rights of the accused that, when such evidence is admitted, it should be carefully limited and guarded by instructions to the jury, so that its operation and effect may be confined to the single legitimate purpose for which it is competent. Roscoe, Crim. Ev. 90, 94; Rex v. Ball, Russ. & R. 132; Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596.

"Proof that a man has violated the law in particular instances, cannot be rebutted by proof that he did not violate it in other instances when he had the opportunity, and was tempted to do

so." Com. v. Barlow, 97 Mass. 597; Albrecht v. People, 78 Ill. 510.

§ 158. Fabrication and Suppression of Evidence.-"The suppression or destruction of pertinent evidence, is always a prejudicial circumstance of great weight; for, as no act of a rational being is performed without a motive, it naturally leads to the inference that such evidence, if it were adduced, would operate unfavorably to the party in whose power it is." 1 Starkie, Ev. p. 437.

By a parity of reasoning any attempt to prevent the attendance of a witness who is morally certain to give important testimony in the case is a fact that may be proved at the trial as warranting a legitimate inference of guilt. People v. Pitcher, 15 Mich. 397; State v. Staples, 47 N. H. 113; People v. Hovey, 29 Hun, 382.

It is error however, to indulge this inference merely from the fact that a party fails to call a certain witness. No prejudice should arise from such failure unless the witness be a material one and presumptively under the special control of the party. Scovil v. Baldwin, 27 Conn. 316; Williams v. Com. 91 Pa. 493.

In this connection it is well to recall the statements of a previous paragraph in the text that no adverse presumption arises from the fact that the defendant fails to take the stand in his own behalf. By statutory enactment in many states, such failure is not even the subject of comment from the presiding judge or public prosecutor; although it would seem that where such comment is made, it is no ground for a new trial. Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121.

The language of the opinion in the celebrated Ruloff case, will sustain this averment of the text. "Upon a criminal trial, the presiding judge has no right, in charging the jury, to allude to the fact that the prisoner has not availed himself of the statutory privilege of being a witness in his own behalf, but where such allusion is made and subsequently, upon his attention being called to it, he states to the jury that there was no law requiring the prisoner to be sworn, and no inference to be drawn against him from the fact of his not being sworn. Held, that this cured the error." Ruloff v. People, 45 N. Y. 213.

The resort to falsehood and evasion by one accused of a crime affords of itself a presumption of evil intentions, and has always been considered proper evidence to present to a jury upon the

question of the guilt or innocence of the party accused. United States v. Randall, Deady, 524; State v. Reed, 62 Me. 129; Com. v. Goodwin, 14 Gray, 55.

"The falsity of the various accounts given by the defendant of the circumstances attending the commission of the crime, so far from modifying the force of the express admission of Conroy that he intended to shoot Keenan, gives it additional weight, and would of itself afford sufficient ground to authorize an inference of guilt, by the jury. Although the evidence shows that the defendant had been drinking during the evening, it does not show that he had become intoxicated, or that the liquor taken by him had obscured his reason or weakened his intellect. The readiness with which he saw the danger his conduct had brought upon him, and the promptitude with which he adopted precautions to obviate it, were circumstances from which a jury might well conclude that he perpetrated the act with an understanding of its consequences and a reckless disposition to brave them." People v. Conroy, 97 N. Y. 62.

The mere fabrication of evidence does not furnish of itself any presumption of law against the innocence of the party, but is a matter to be dealt with by the jury. Innocent persons, under the influence of terror from the danger of their situation, have been sometimes led to the simulation of exculpatory facts, of which several instances are stated in the books. Again, the exercise by a client of his undoubted right to prevent his solicitor from dis closing confidential communications, can form no just ground for adverse presumption against him. Neither has the mere nonproduction of deeds or papers, upon notice, any other legal effect in general than to admit the other party to prove their contents by parol, and, as against the party refusing to produce them, to raise a prima facie presumption that they have been properly stamped. It cannot, however, be denied, but that such conduct, in the absence of all excuse, is calculated to produce in the minds of the jury a very prejudicial effect against any person having recourse to it; and if such person be charged with fraud or other misconduct, and the production of his papers would establish his guilt or innocence, the jury will be amply justified in presuming him guilty from the unexplained fact of their non-production. On the same principle, jurors will do well to regard with suspicion the conduct of any party, who, having it in his power to pro

duce cogent evidence in support of his case, is content to offer testimony of a weaker and less satisfactory character. 1 Taylor, Ev. § 117, citing 3 Coke, Inst. 232; Wills, Circ. Ev. 154; Went worth v. Lloyd, 33 L. J. Ch. 688, per Lord Chelmsford, Dom. Proc. 10 H. L. Cas. 589; Cooper v. Gibbons, 3 Campb. 363; Crisp v. Anderson, 1 Stark. 35; Roe v. Harvey, 4 Burr. 2484, per Lord Mansfield; Bate v. Kinsey, 1 Cromp. M. & R. 41, per Lord Lyndhurst; Sutton v. Devonport, 27 L. J. C. P. 54; Edmonds v. Foster, 45 L. J. M. C. 41; Clifton v. United States, 45 U. S. 4 How. 242, 11 L. ed. 957; New York Civ. Code, § 1852, art. 6, 7.

Mr. Colby, in his well known treatise on Criminal Law, under the caption above indicated, employs the following pertinent language:

"Among examples of this nature may be mentioned the common case of obliteration of marks of identity, as by filing away the engraving from articles of plate, or the removal or endeavor to remove from the person or clothes stains of blood or other marks. The shoeing of a horse backwards, so as to reverse the tracks, and many other instances of the obliteration or distortion of marks of identity. Wills, Circ. Ev. 75; 1 Whart. Am. Crim. Law, 723."

In the case of an indictment for murder by poisoning, the contents of the stomach, which had been placed in a jug for examination, were clandestinely thrown by the prisoner into a vessel containing a large quantity of water. Upon this circumstance, the learned judge commented very forcibly in his charge to the jury. "What pretense," said he, "was there for this? And if the prisoner did it, why do it in secrecy? Why place the jug in the precise condition in which it was left by the medical man? Why not allow it to remain in the situation in which a vessel may be placed in the progress of such an examination." Donnall's Case, Frazier, 171.

The concealment of death by the destruction or attempted destruction of human remains falls within the same classification. Bemis' Webster case, 471; Rex v. Gardelle, 4 Celebrated Trials, 400.

Prominence among the cases of suppression of evidence is the attempt to prevent post mortem examinations by the premature interment of human remains, under the pretext that it is necessary by the state of the body. In the case of violent or sudden death, and especially when caused by poison, it cannot but be

known that the post mortem examination will always furnish important and generally conclusive evidentiary matter as to the cause of death. Besides the suppression, destruction and fabrica tion of evidence by criminals, which, when detected, raises a strong presumption against them, facts are often simulated for the purpose of attracting suspicion in a direction different from the true one. Sometimes the object of simulated facts is not merely to divert suspicion from the real culprit, but also to attract it toward a particular individual; and such is the weakness of human nature that there are even instances where innocence has degraded and betrayed itself by the simulation of facts, for the purpose of evading the force of circumstances of apparent suspicion. Wills, Circ. Ev. 79-82; Rex v. Coleman, 1 Remarkable Trials, 162, 4 Remarkable Trials, 344.