Page images

by a servant or clerk; enacts, that if on an indictment for the one crime, the evidence should bring it within the legal definition of the other, the jury may convict of whichever crime the evidence establishes.

The 14th section allows prisoners charged with a joint receipt of stolen property, to be convicted severally of a separate receipt.

The object of the act, as stated by its author, Lord Campbell, C. J., is held "to apply to all cases where amendments may be made in furtherance of justice, and where the defendant cannot be prejudiced in his defence, on the merits, by such amendment."

[ocr errors]

It has been ruled that an amendment will not be allowed after the counsel for the prisoner has addressed the jury. The proper course is that, where the counsel for the prisoner has given all the evidence that he means to give, he should, if he wishes for an amendment, ask for it before he closes his case; and then, if the amendment be allowed, the counsel for the prisoner addresses the jury on the indictment as it is amended.2

The effect of the 14 & 15 Vict. c. 100, has been virtually to abolish the multitude of technical subtleties, which were formerly the means of defeating justice, and procuring unreasonable verdicts of acquittal, after the substance of the charge had been proved. The responsibility of letting loose on society a criminal of whose guilt no reasonable auditor has entertained a doubt, no longer rests with the shortcomings of the Legislature, but with the discretion of the judge; and, as it is his duty to amend a defective indictment, when the prisoner cannot fairly complain that he is required suddenly to meet a charge for which he is not prepared; so it is equally the duty of a judge not to endanger the liberty of the subject, or encourage the carelessness of prosecutors, by permitting the form of an indictment to be altered substantially from what it was when the prisoner was called on to plead to it.

1 R. v. Sturge, 23 L. J. 172, M. C.

* Vide Williams, J., R. v. Rymer, 3 C. & K. 326, sed vide supra, p. 199.

On this head, it has been said by a learned writer, that no general rule can be laid down for the guidance of the court in all cases. It is very possible that, an amendment which in one case might not prejudice a prisoner might in another case prejudice him materially.1 The inclination of the court will still be in favorem vitæ. The court will look at all the circumstances of the case to ascertain whether the transaction would be changed by the amendment ;2 and will not forget that the protection of the weak from oppression, and of the presumptively innocent from injustice, are higher objects, even in the estimation of positive law, than the detection and punishment of the guilty.

[blocks in formation]



As it is the object of pleading to reduce the case of each litigating party to one or more substantial issues which involve the merits of the question; and as for this purpose none but material allegations which tend to the raising of such issues are admitted; so it is the object of evidence to provide that, when such allegations have been made, and such issues selected, they shall be supported by strictly relevant proof. It is impossible to define the distinction between relevant and irrelevant evidence, and even the cases illustrate the difference unsatisfactorily. In the case of direct evidence, there is little difficulty in drawing the practical line; but, since a large proportion of evidence is of a presumptive or circumstantial character, it is an office requiring the keenest perspicacity, and the utmost delicacy of intuition, to distinguish between legitimate presumption and irrelevant hypothesis; and it is in observing this appreciable, but indescribable distinction, that the sense and wariness of an able judge especially appear.

The rule is that :

LII. The evidence offered must correspond with the allegations, and be confined to the points in issue.1

It is a fundamental principle that no credible presumption as to the conduct, intention, or course of

1 Greenl. 58; Tayl. 194.

dealing between two parties can be derived from proof of the conduct, intention, or course of dealing between one of them, and a third party. Such evidence is said to be res inter alios acta, and will be rejected as irrelevant to the issue. The fact that A. contracted, or dealt in a particular manner with B., is no evidence that he meant to contract, or deal in the same manner, with C.

Thus, in an action by a brewer against a publican, where the issue was as to the quality of beer supplied by the former to the latter, Lord Ellenborough refused to let the plaintiff call witnesses to show that he supplied them, at the time in question, with good beer, His Lordship said: "This is res inter alios acta. We cannot here inquire into the quality of different beer, furnished to different persons. The plaintiff might deal well with one, and not with the others. Let him call some of those who frequented the defendant's house, and there drank the beer which he sent in ; let him give any other evidence of the quality of the beer; but I cannot admit witnesses to his general character and habits as a brewer." Hence, where the issue was, whether the plaintiff, a tradesman, had given credit to A.'s father, evidence that other tradesmen had given credit to the father was rejected.2 So, evidence of the treatment of scholars at one school, is no evidence of the quality of their treatment at another school;3 and where the action was for withdrawing scholars without a quarter's notice, according to a prospectus of terms, which the defendant was proved to have received, it was held, that a witness might state that she had never received any prospectus while her children had been at the school; because this evidence bore on the usual course of the plaintiff's dealing, but that she could not prove that she had taken her children away without notice, and without being

1 Holcombe v. Hewson, 2 Camp. 391.
2 Smith v. Wilkins, 6 C. & P. 180.
3 Boldron v. Widdows, 1 C. & P. 59.

called on to pay a quarter's salary, apparently because this might have been merely a matter of peculiar arrangement.1 So, the terms on which one tenant holds are no evidence of the terms on which another tenant holds under the same landlord.2

But where the extraneous transaction contains the principle of a reasonable and credible inference as to the motive or conduct of the party, the judge, in his discretion, will admit evidence of it. Thus, in false imprisonment on a charge of felony, where the defence is a bonâ fide belief that the defendant had committed felony, the defendant may show that he had previously done acts which go to establish the presumption of bona fides. So, on a charge of uttering counterfeit coin, a guilty knowledge may be proved by evidence either of a previous or subsequent uttering of another description of counterfeit coin.4


The customs of one manor are not evidence of the customs of another manor,5 unless a connection between them be first established, as by showing that they belong to the same lord, that the same description of tenants has existed in each, and that their leases have been granted in the same terms. In such a case, the usage which has prevailed in one part, and is therefore evidence to explain the meaning of a grant there, is evidence to explain a grant expressed in similar terms as to any other part of the district.6 But the unity, or original identity of the manors must be clearly shown; and the mere fact of their being in the same leet, or parish, is not sufficient.7

A custom of trade may be proved by showing what is the custom of the same trade in a different place. Thus, evidence of the custom of fisheries off Newfound

1 Delamotte v. Lane, 9 C. & P. 261.

2 Carter v. Pryke, Peake, 95.

3 Thomas v. Russell, 23 L. J. 233, Exch.

4 Reg. v. Foster, 25 L. T. 119.

5 Marquis of Anglesea v. Lord Hatherton, 10 M. & W. 233.

• Bayley, J., Rowe v. Brenton, 8 B. & C. 764.

7 Lord Abinger, 10 M. & W. 236.



« EelmineJätka »