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Cr. Law, 125, 7th ed. Mr. Phillipps observes, that the authorities appear to be in favor of such evidence being admitted, but that they are not very satisfactory. Phill. 570, 8th ed. And a writer of high reputation has stated, that the distinction between these depositions, and those taken before a magistrate, is not warranted by the legislature, and that as it is unfounded in principle, it may, when the question arises, be a matter of very grave and serious consideration, whether it ought to be supported. 2 Stark. Ev. 278, 2d ed. This opinion has been adopted by another text [*70] writer of eminence. 2 Russ. 661. Mr. Phillipps also remarks, that as far as the judicial nature of the inquiry is important, it appears to be as regular for the coroner to take the depositions in the absence of the prisoner, as it is for a justice to take the evidence in his presence. But although an inquiry by the coroner in the absence of the prisoner be a judicial proceeding, and required by the duty of his office, yet there seems no satisfactory reason why it should not be confined to its proper objects, or why the depositions should be received under circumstances which render every other kind of depositions taken judicially inadmissible, except by express statutory provision. Phill. Ev. 570, 8th ed.

The judges have power, by their general authority as a court of justice, to order a copy of depositions taken before a coroner to be given to a prisoner indicted for the murder of the party concerning whose death the inquiry took place before the coroner, although the case is not one in which the coroner would have been compelled to return them under the 7 Geo. 4, c. 64, s. 4. Greenacre's case, 8 C. and P. 32 (a).

Depositions in India, by consent, &c.] By the 13 Geo. 3, c. 63, for establishing certain regulations for the better management of the affairs of the East India Company, in all cases of indictments or informations in the King's Bench, for misdemeanors or offences committed in India, that court may award a mandamus to the judges of the supreme court, &c., who are to hold a court for the examination of witnesses, and receiving other proofs concerning the matters in such indictment or information; and the examination publicly taken in court shall be reduced to writing, and shall be returned to the court of King's Bench in the manner directed by the act, and shall be there allowed, and read, and deemed as good evidence, as if the witness had been present. Sec. 40. Depositions with regard to prosecutions for offences committed abroad by persons employed in the public service, are regulated by statute 42 Geo. 3, c. 85.

Depositions are sometimes taken by consent in prosecutions for misdemeanors. Morphew's case, 2 M. and S. 602. Anon. 2 Chitty, 199 (b). But these cannot be read if the witness is in this country. 2 Russ. 664.

(a) Eng. Com. L. Rep. xxxiv. 280. (b) Id. xviii. 305.

*ONUS PROBANDI.

General Rule-affirmative to be proved. 71 | Where a fact is peculiarly within the Where the presumption of law is in favor knowledge of a party of the affirmative.

71

72

General Rule-affirmative to be proved.] It is a general rule of evidence established for the purpose of shortening and facilitating investigations, that the point in issue is to be proved by the party who asserts the affirmative. Phill. Ev. 827, 8th ed. B. N. P. 298. It is however, necessary to look to the substance, and not to the form of the issue, for in many cases a party, by making a slight change in the form of his pleading, might make the issue affirmative at his pleasure. Per Lord Abinger, C. B., Soward v. Leggatt, 7 C. and P. 613 (a). There are some exceptions to the above rule.

Where the presumption of law is in favor of the affirmative.] As the above rule is not founded on any presumption of law in favor of the party, but is merely a rule of practice and convenience, it ceases in all cases where the presumption of law is thrown into the other scale. "Where the law," says Gilbert, C. B., "supposes the matter contained in the issue, there the opposite party must be put into the proof of it by a negative, as in the issue of ne unques accouple in loyal matrimonie, the law will suppose the affirmative without proof, because the law will not easily suppose any person to be criminal; and therefore, in this case the defendant must begin with the negative." Gilb. Ev. 145.

In general, therefore, as the law presumes that every person acts legally, and performs all the matters which he is by law required to perform, the party who charges another with the omission to do an act enjoined by law, must prove such omission, although it involves the proof of a negative (!). Thus in an information against Lord Halifax for refusing to deliver up the Rolls of the Auditor of the Exchequer, it was held that the plaintiff was bound to prove the negative, viz. that Lord Halifax did not deliver them, for a person shall be presumed duly to have executed his office till the contrary appear. B. N. P. 298. So in an action for the recovery of penalties under the Hawkers' and Pedlars' Act, (29 Geo. 3, c. 26, s. 4; repealed and re-enacted by 50 Geo. 3, s. 7) against a person charged with having sold goods by auction in a place in which he was not a householder, some proof of this negative, *viz. of the defendant not being a [*72] householder in the place, would be necessary on the part of the plaintiff. Phill. Ev. 828, 8th ed. So in ejectment for not insuring according to coveHartwell v.

(1) Commonwealth r. James, 1 Pick. 375. Jackson v. Shaffer, 11 Johns. 513. Root, 19 Johns. 345.

(a) Eng. Com. L. Rep. xxxii. 654.

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 (b). 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. 22 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 v. Hayward, 2 Gall. 484.

On an indictment for selling liquor without a license, it lies on the defendant to license. Gening v. The State, 1 McCord, 573.

(a) 2 Eng. C. C. 154. (b) Eng. Com. L. Rep. xii. 215. (c) Id. xxi. 404.

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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 v. Greenfield, 5 Ohio, 227. See Commonwealth v. Hopkins, 2 Dana, 418. Walker . 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 inadmissible, to inquire into any othe stealing of goods than that specified in the indictment, 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. 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 him 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 him 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 (b). 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. 269.

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 towards 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. (b) 1 Eng. C. C. 376.

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