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nant, it lies upon the plaintiff to prove that no insurance has been effected. Doe v. Whitehead, 3 N. and P. 557.
Upon the same principle on the trial of an indictment under the 42 Geo. 3, c. 107, s. 1, (repealed, which made it felony to course deer in an enclosed ground, “ without the consent of the owner of the deer;" it was held that proof of the consent not having been given must have been produced on the part of the prosecutor. Rogers's case, 2 Campb. 654. But in order to prove such want of consent it was not essential to call the owner himself. Allen's case, Chamberlain's case, 1 Moo. C. C. 154 (a). Hazy's case, 2 C. and P. 458 (6). Upon the same principle, where the issue is on the legitimacy of a child born in lawful wedlock, it is incumbent on the party asserting its illegitimacy to prove it; Banbury Peerage case, 2 Selw. N. P. 709; and where the issue is on the life of a person who is proved to have been alive within seven years, the party asserting his death must prove it. Ante, p. 22.
Where a fact is peculiarly within the knowledge of a party.) But where a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law, will not render it incumbent upon the other side to prove the negative; but the party who must know the fact is put to the proof of it (1). Thus in the case of a conviction under the stat. 5 Ann. c. 14, s. 2, (repealed,) against a carrier having game in his possession, it was held sufficient that the qualifications required by the stat. 29 and 23 Car. 2, c. 25, (repealed,) were negatived in the information and adjudication, without negativing them in evidence. Turner's case, 5 M. and S. 206. So where, on a conviction for selling ale without a license, the only evidence given was that the party sold ale, and no proof was offered of his selling it without a license, the party being convicted, it was held that the conviction was right, for that the informer was not bound to sustain in evidence the negative averment. It was said by Abbott, C. J., that the party thus called on to answer for an offence against the excise laws, sustains not the slightest inconvenience from the general rule, for he can immediately produce his license; whereas if the case is taken the other way, the informer is put to considerable inconvenience. Harrison's case, Paley on Convictions, 45, (n.) 2d ed. See also Smith's case, 3 Burr. 1476. The same rule has been frequently acted upon in civil cases. Thus on an action against a person for practising as an apothecary, without having obtained a certificate according to the 55 Geo. 3, c. 194, the proof of the certificate lies upon the defendant, and the plaintiff need not give any evidence of his practising without it. Apoth. Comp. v. Bentley, R. and M. N. P. C. 159 (c).
(1) “ If the charge consist in a criminal neglect of duty, as the law presumes the affirmative, the burthen of proof of the contrary is thrown on the other side. But in other cases, as where the negative does not admit of direct proof, or the facts lie more immediately within the knowledge of the defendant he is put to his proof of the affirmative.” Story, J., in U. States o. Hayward, 2 Gall. 484.
On an indictment for selling liquor without a license, it lies on the defendant to prove his license. Gening o. The State, 1 McCord, 573.
(a) 2 Eng. C. C. 154. (b) Eng. Com. L. Rep. xii. 215. (c) Id. xxi. 404.
General Rule.] It is a general rule, both in civil and criminal cases, that the evidence shall be confined to the point in issue. In criminal proceedings it has been observed, (2 Russ. 694; 1 Phill. Ev. 178, 7th ed.) that the necessity is stronger, if possible, than in civil cases, of strictly enforcing this rule; 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 consist exclusively of the transaction, which forms the subject of the indictment, which alone he can be expected to come prepared to answer.
Under this rule, therefore, it is not competent for the prosecutor to give evidence of facts, tending to prove another distinct offence, for the purpose of raising an inference that the prisoner has committed the offence in question. Thus, in treason, no overt act amounting to a distinct and independent charge, though falling under the same head of treason, can be given in evidence, unless it be expressly laid in the indictment; yet if it amounts to direct proof of any of the overt acts laid, it may be given in evidence. Foster, 245. Upon the same ground it is not competent to the prosecutor to give evidence of the prisoner's tendency to commit the offence with which he is charged. Thus on a prosecution for an infamous crime, an admission by the prisoner, that he had committed such an offence at another time, was held by all the judges to have been properly rejected. Cole's case, Phill. Ev. 499, 8th ed. (1)
*Upon an indictment for stealing a piece of pork, a bowl, some [ *74 ] knives, and a loaf of bread, it appeared that the prisoner entered the prosecutor's shop, and ran away with some pork, but in about two minutes he returned, replaced the pork in a bowl which contained the knives, and took away the whole. In about half an hour he returned and took away the loaf. Held by Littledale, J., that the taking of the loaf could not be given in evidence upon that indictment, that the prisoner's taking the pork and returning in two minutes and taking away the bowl must be considered as one continuing transaction; but that half an hour was too long a period to admit of that construction, and therefore that the taking of the loaf was a distinct offence. Birdeye's case, 4 C. and P. 386 (a).
(1) In a prosecution for perjury, proof of the general bad character of the defendant for truth and veracity would be inadmissible. Dewit o. Greenfield, 5 Ohio, 227. See Commonwealth o. Hopkins, 2 Dana, 418. Walker ö. The Commonwealth, 1 Leigh, 574.
(a) Eng. Com. L. Rep. xix. 433.
On an indictment for burglary and larceny, it appearing that the prisoners might have been in the house before dark, and that nothing had been stolen at that time; the prosecutor proposed to give evidence of a larceny committed in the house by the prisoners previously, but the court rejected the evidence, the latter felony being a distinct transaction. Vandercomb's case, 2 Leach, 708; 2 East, P. C. 519, S. C. (1)
Cases where evidence of other transactions is admissible, as referable to the point in issue. But where the evidence is referable to the point in issue, it will not be inadmissible, although it may incidentally apply to another person, or to another thing not included in the transaction in question, and with regard to whom, or to which, it is inadmissible. See Willis v. Bernard, 8 Bingh. 376 (a). Thus although it is not material in general, and it is therefore inadniissible, to inquire into any othe stealing of goods than that specified in the indictinent, yet for the purpose of ascertaining the identity of the person, it is often important to show that other goods which have been upon an adjoining part of the premises, were stolen on the same night, and afterwards found in the possession of the prisoner. 1 Phill. Ev. 109, 7th ed. So on an indictment for arson, evidence has been admitted to show that property which had been taken out of the house at the time of the firing, was afterwards discovered in the prisoner's possession. Rickman's case, 2 East, P. C. 1035. A case is cited by Lord Ellenborough, in Whiley's case, where a man committed three burglaries on one night, and stole a shirt at one place and left it at another, and they were all so connected, that the court heard the history of the three burglaries. Whiley's case, 2 Leach, 985; 1 New Rep. 92, s. C. Mr. Justice Heath, at the same trial, cited a case where several persons were indicted for a conspiracy to raise wages, and on the trial, evidence was received of circumstances which, taken by themselves, amounted to substantive felonies; but as those circumstances were material to the point in issue, they were admitted in evidence. Id. The prisoner was indicted for robbing the prosecutor, (by threatening to accuse bim of an unnatural offence.) For the prosecution, evidence was given of a similar attempt on the following evening, when the prisoner brought with him [ *75 ] a duplicate pawn ticket, for a *coat, which he had obtained before. This evidence was objected to, as going to establish a distinct offence, but Holroyd, J., received it (Wood, B., coinciding with hiin as to its admissibility) on the ground of its being offered as confirmatory of the truth of the prosecutor's evidence, as to the transactions of the former day, and as to the nature of those transactions. Egerton's case, Russ. and Ry. C. C. 376 (6). Upon the same principle, viz. that the other acts were explanatory of the transaction in question, similar evidence was admitted in the following case. The prisoner, who had been in the employ of the prose
(1). All facts upon which any reasonable presumption or inference can be founded as to the truth or falsity of the issue are admissible in evidence. Richardson v. Royalton & Woodstock Turnpike Co., 6 Verm. 436. Davis Calvert, 5 Gill & John. 26).
A. and B. when riding in a gig, were robbed at the same time, A. of his money, and B. of his watch, and violence used lowards both. There was an indictment for robbing A. and another for robbing B. Littledale, J. held, on the trial of the first indictment, that evidence might be given of the loss of B.'s watch, and that it was found on one of the prisoners, but that evidence could not be given of any violence offered to B. by the robbers. Rooney's case, 7 C. & P. 517 a.
(a) Eng. Com L. Rep. xxi. 325. (6) 1 Eng. C. C. 376.
cutrix, was indicted for stealing six shillings. The son of the prosecutrix suspecting the prisoner, had marked a quantity of money, and put it into the till, and the prisoner was watched by hiin. On the first examination of the till it contained 11s. 6d. The prosecutrix's son having received another shilling from a custo:ner, put it into the till; and another person having paid a shilling to the prisoner, he was observed to go to the till, to put in his hand and to withdraw it clenched. He then left the counter, and was seen to raise his hand clenched to his waistcoat pocket. The prosecutrix was proceeding to prove other acts of the prisoner, in going to the till and taking money, when it was objected that this would be to prove several felonies. The objection being overruled, the prosecutrix's son proved, that upon each of the several inspections of the till, after the prisoner had opened it, he found a smaller sun than ought to have been there. The prisoner having been convicted, the Court of King's Bench, on an application for staying the judgment, were 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. Ellis's case, 6 B. and C. 145 (a). Similar evidence was lately admitted in a case of robbery. The prisoners came with a mob to the prosecutor's house, and one of the mob went up to the prosecutor, and civilly, and as he believed with a good intention, advised him to give them something to get rid of them, which he did. To show that this was not bona fide advice to the prosecutor, but in reality a mode of robbing him, it was 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. Parke, J., having conferred with Vaughan, B., and Alderson, J., 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.” He afterwards stated that the judges (it was a special commission) had communicated with Lord Tenterden, who concurred with them in this opinion. Winkworth's case, 4 C. & P. 444 (b). See also Mogg's case, 4 C. and P. 364 (c) (1). So where, upon an indictment for felony, a matter which was the subject of another indictment for felony was essential to the chain of facts necessary to make out the case, both felonies being parts of one transaction, Patteson, J., held that *the subject-matter of the other in- [ *76'] dictment might be given in evidence without abandoning such other indictment. Salisbury's case, 5 C. and P. 155 (d). So upon an indictment for stabbing, in order to identify the instrument, evidence may be adduced of the shape of a wound given to another person by the prisoner at the same time, although such wound be the subject of another indictment. Per Gaselee, J., and Park, J., Fursey's case, 6 C. and P. 81 (e). So
(1) On an indictment for a conspiracy in inveigling a young girl from her mother's house, and reciting the marriage ceremony between her and one of the defendants, a subsequent carrying her off, with force and threats, after she had been relieved on habeas corpus, was al lowed to be given in evidence. Commonwealth o. Hevice and al., 2 Yeates, 114.
On an indictment against a man for killing his wife, the prosecutor has been allowed to prove an adulterous intercourse between the prisoner and another woman, not to prove the corpus delicti, but to repel the presumption of innocence arising from the conjugal relation. The State o. Watkins, Conn. 47. (a) Eng. Com. L. Rep. xiii. 123. (b) Id. xix. 465. (C) Id. xix. 42). (d) ld. xxiv. 253.
() Id. xxv. 293.
where there were three several indictments against the prisoner for burning three ricks which had been set on fire one immediately after the other, and the prisoner was tried on the third indictment, Gurney, B., allowed an accomplice to give evidence of the setting fire to all the three ricks, as constituting part of the same transaction. Lony's case, 6 C. and P. 179 (a).
On a trial where Spencer's case was referred to, Patteson, J. said, “It is the opinion of the judges that evidence of any confession is receivable, unless there has been some inducement held out by some person in authority.” Sarah Taylor's case, 8 C. and P. 733(b). In the last-mentioned case the prosecutor's house had been set on fire, and the prisoner, a female servant, was sent for into the parlor, where a person not in authority, in the presence of the wife of the prosecutor held out an inducement to the prisoner to confess, the wife expressing a dissent. The learned judge said that the inducement must be taken as if held out by the prosecutor's wife, who was a person in authority over the prisoner, and that therefore tbe evidence was inadmissible.
Cases where evidence of other transactions is admissible, as referable to the point in issue-acts and declarations of conspirators. Not only, as in the cases before inentioned, may the acts and declarations of the prisoner himself on former occasions, be admitted when referable to the point in issue, but also the acts and declarations of other persons with whom he has conspired, may, if referable to the issue, be given in evidence against him.
In prosecutions for conspiracies, it is an established rule, that where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party in pursuance of the original concerted plan, and with reference to the common object, is in the contemplation of law as well as in sound reason, the act of the whole party ; and therefore the proof of the act will be evidence against any of the others who were engaged in the same general conspiracy, without regard to the question, whether the prisoner is proved to have been concerned in the particular transaction. Phill. Ev. 210, 8th ed. (1) Thus on the trial of an indictment against several persons for a conspiracy, in unlawfully assembling for the purpose of exciting discontent or disaffection, as the material points for the consideration of the jury are, the general character and intention of the assembly, and the particular case of the defendant as connected with that general character, it is relevant to prove, on the part of the prosecution, that bodies of men came from different parts of the country to attend the meeting, arranged and organized in the same manner and acting in concert. It is relevant also to show, that early on the day of the meeting, on a spot at some distance from the place of meeting, (from which spot bodies of men came afterwards to the place of meeting) a great number of persons, so organized, had assembled, and had there
(1) Commonwealth o. Crowninshield, 10 Pick. 497. American Fire Co. o. The U. States, 2 Peters, 364. Snyder o. Lafrarnboise, 1 Bree. 269. Commonwealth o. Eberle, 3 S. and R. 9. Wilbur 0. Strickland, 1 Rawle, 458. Reitenback v. Reitenback, Id. 362. Martin o. The Commonwealth, 2 Leigh, 745. Gardner v. Preston, 2 Day's Cases, 205. Collins r. The Commonwealth, 3 S. and R. 220. Ex parte Bollman and Swartwout, 4 Cranch, 75. Liver. more v. Herschell and al., 3 Pick. 33. Rogers v. Hall, 4 Watts, 359. Gibbs 0. Nedy, 7 Watts, 305. Colt and al. v. Eves, 12 Conn. 243.
(m) Eng. Com. L. Rep. xxv. 343. (b) Id. xxxiv. 608.