dence of matters of public and general interest." So, whenever an object other than a writing cognizable by the senses is a relevant fact, such object may be exhibited to the jury, or its existence, situation and character may be proved by other evidence. The importance of this subject under any scheme of evidence must be apparent and accordingly it has received ample consideration in 1 Rice, Civil Evidence, chap. 7. The text occupies over 78 pages, and generally speaking, applies with equal force to both civil and criminal cases.

CHAPTER VII.

RELEVANCY.

§ 38. Preliminary View, Term Defined.

39. Evidence Confined to the Point in Issue.

40. Relevancy, how Determined.

41. The Attributes of Relevancy.

42. Offer of Proof.

43. Indecency no Ground for Excluding Relevant Testimony.

§ 38. Preliminary View, Term Defined.-Questions in regard to the relevancy of particular items of testimony always depend upon the peculiar circumstances of the case, and must be solved by the application of sound judgment and common sense. It very often happens, as practical men in the profession well know, that facts which in one state of the evidence and one aspect of the case are entirely irrelevant, suddenly, by a slight change in the conditions, become of controlling importance. Hence the necessity, which so often happens in attempting to taken written testimony, of introducing into a deposition so many facts which at first sight seem entirely irrelevant, but which may become admissible and important; hence, too, one reason why in criminal causes it is so important that the witnesses should testify in open court, and in the presence of the accused, in order that all their knowledge should be available to meet all the exigencies of the trial. It is for this reason that so many reported cases in the law of evidence are valuable, not so much for establishing principles of law, as for the illustration of those principles.

The word "relevant" means that the fact to which it is applied is so related to another fact, that, according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of the other. Stephen, Dig. Introduction.

The New York commissioners appointed to draft a code of evidence have elaborated this definition of Sir James Stephen and declare that any and all facts necessary to explain or introduce a fact in issue or relevant to the issue, or which support or

rebut an inference suggested by any such fact, or which establish the identity of anything or person whose identity is in issue, or is relevant to the issue, or which fix the time and place at which any such fact happened, or which show that any document produced is genuine or otherwise, or which show the relation of the parties by whom any such fact was caused, or which afforded an opportunity for its occurrence or transaction, or which is necessary to show the relevancy of other facts, are relevant so far as they are necessary for those purposes respectively.

NOTE.-The following is an extract from a lecture delivered by Prof. Austin Abbott, L. L. D., to the students of the Class of '92 of the University of the City of New York, stenographically reported by Mr. Charles W. Thompson, and published in the Columbia Law Times of Nov., 1892. Its reproduction here is by permission:

When Macaulay undertook to prepare a code for India, and Fitz-James Stephen undertook to prepare a digest of the law of evidence, they undertook to turn the law of evidence the other end to, so to speak; to bring up the logical principles of evidence into view, emphasize them, make them explain everything they could, and to sink the traditionary, the technical, the arbitrary rules, to give a reason for every rule of evidence they could, or one reason which would explain all rules of evidence so far as possible, and to minimize the rules of evidence that didn't depend on logical principles. And the logical principle that they laid down as the key-note of all the rules of evidence is that any fact ought to be competent which according to the ordinary course of events renders probable or improbable the truth of a fact in issue; and they called that RELEVANCY. They dropped the word competency so far as possible; applied that to witnesses; but proposed this test: for instance, if the fact alleged is payment of money, if that is a fact in issue, is the circumstance that before this alleged payment the debtor had plenty of money and after that he did not bave any, that before the alleged payment the creditor didn't have any money and afterwards he did have some, are those circumstances which tend to render probable the fact that that payment was made? In other words, they said that when a fact is in issue, any circumstance which according to the ordinary experience of human affairs tends to render probable any fact which would be the cause of the fact in issue, or would be an effect of that fact in issue, is relevant. Any fact which is the usual concomitant of that fact in issue is relevant. And

They carried this use of the term very far. For instance, Stephen in his Digest, says that the opinion of a witness is relevant if he is an expert; it is not relevant if he is not an expert. Now that is not according to the ordinary use of language. We should say, does his opinion relate to this fact in issue? Yes. Well, then, it is relevant. It bears on the subject. Is he an expert? No. Well, then it is not competent. It is relevant in the ordinary sense of the term, but if he is not qualified to express an opinion it is not competent.

In the ordinary use of language, and in American law, relevant means germane to the subject. The danger of following Stephen's Digest of Evidence is that it

uses relevant in the sense of competent or admissible, and there has been more than one case lost by an attorney objecting that the evidence wasn't relevant in Stephen's sense of the word, when he didn't give the other side, or the Court, to understand that it wasn't competent.

I give you the Code of Evidence, and I advise you all who are interested in this question-I have only opened the door to it here-to read the preface to the report of the Commissioners in preparing that Code of Evidence. You will see how far they have gone. In that Code of Evidence they have adopted this use of the term relevant; and it runs all through the provisions of that Code. The definition of relevant is better than the use of it in this Code. That is to say, where one fact does render probable the existence of the other, it may be said to be germane to the subject, and the definition of relevant is not far out of the way there; but the use of the term as matter of practice on the trial of a case is not safely to be substituted for more specific objections to the nature of the evidence.

§ 39. Evidence Confined to the Point in Issue. No evidence can be admitted which does not tend to prove or disprove the issue joined. In criminal proceedings the neces sity is stronger, if possible, than in civil, of strictly enforcing the rule that the evidence is to be confined to the point in issue; for where the prisoner is charged with an offense, it is of the utmost importance to him, that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer. Russell, Crimes, chap. 2, p. 772, § 2. And see People v. Stout, 4 Park. Crim. Rep. 106; Whart. Am. Crim. Law, 292; Roscoe, Crim. Ev. 81; Fox v. Clifton, 6 Bing. 354;

V.

1 Lead. Crim. Cas. 189; LaBeau v. People, 34 N. Y. 223; Respublica v. Mulatto Bob, 4 U. S. 4 Dall. 164, 1 L. ed. 777; People v. Gardiner, 6 Park. Crim. Rep. 158; People v. Thompson, 41 N. Y. 6; Coleman v. People, 58 N. Y. 555; Cowley v. People, 8 Abb. N. C. 1, 83 N. Y. 464.

The elementary rule of evidence, that the testimony must be confined to the points in issue, is based not only on the reason "that such evidence tends needlessly to consume the public time, to draw away the minds of the jurors, and to excite prejudice and mislead, but, moreover, that the adverse party, having had no notice of such evidence, is not prepared to rebut it." 1 Taylor, Ev. § 298.

We are admonished by this distinguished author that "the due application of this rule will occasionally tax to the utmost the firmness and discrimination of the judge; so that, while he shall reject as too remote every fact which merely furnishes a fanciful

analogy or conjectural inference, he may admit as relevant the evidence of all those matters which shed a real, though perhaps an indirect and feeble light on the question in issue." 1 Taylor, Ev. § 298; Bloomer v. State, 48 Md. 521.

That evidence properly admissible for one purpose may be so perverted in its use as to effect a different and illegitimate purpose, is not altogether preventable. But such evidence cannot on that account be wholly rejected. The correction of its abuse lies in such explanation as the presiding judge may feel required to give to the jury concerning it. Then too when the ill concealed purpose of its introduction becomes obvious to the jury it often reacts against the party attempting to profit by the irregularity. State v. Farmer, 84 Me. 436.

Generally, then, it may be affirmed that when there is testimony which has any legal effect, it would be error in the court to determine the weight of it or the fact which it did or did not ascertain. But whether evidence tends to prove anything perti. nent to the issue is a question for the court. State v. Taunt, 16 Minn. 109.

Relevancy may be further influenced by the intrusion of a bill of particulars. As in civil cases if either party has submitted such a bill, the evidence is restricted upon the trial to the speci fications of the bill. Com. v. Giles, 1 Gray, 466; State v. Rowe, 43 Vt. 265.

The demand should be made before the commonwealth opens its case to the jury, and there is no prescribed formula in drawing the bill. If it sufficiently indicates the evidence to be adduced in establishing the general charge it is all that can be expected. Com. v. Snelling, 15 Pick. 321; Com. v. Davis, 11 Pick. 432.

A bill of particulars cannot be demanded as a matter of absolute right. Its issuance is largely within the scope of judicial discretion. But, instances occasionally arise where the refusal to order a bill of particulars amounts to so gross an abuse of discretion as to require the court to recognize it as ground of reversible error. People v. McKinney, 10 Mich. 54; Com. v. Wood, 4 Gray, 11.

A copy of the minutes of the grand jury may, in the discretion of the court, be ordered to be furnished to the accused when necessary to enable him to prepare for trial.

When the statements of an indictment are sufficiently definite