corporal agency. All consultations therefore carried on by one conspirator, relative to the general design, and all conversations in his presence, are evidence against another conspirator, though absent. 1 Phill. Ev. 95, 7th ed. The effect of such evidence must depend on a variety of circumstances, such as whether the party was attending to the conversation, and whether he approved or disapproved; still such conversations are admissible in evidence. Per Eyre, C. J., Hardy's case, 24 How. St. Tr. 704. In Lord George Gordon's case the cry of the mob, being part of the transaction, was held to be admissible against the prisoner. 21 How. St. Tr. 535. And upon the same principle, the expressions of the mob in the Sacheverell riots, that they designed to pull down the meeting-houses, were admitted in evidence. Damaree's case, 15 How. St.

Tr. 552.

Cases where evidence of other transactions is admissible, as referable to the point in issue-admissible for prisoner as well as for prosecution.] Evidence of other acts and declarations of the prisoner, as it is admissible for the prosecution, under the restrictions above stated, so it is also admissible on behalf of the prisoner. On a charge of murder, for instance, expressions of good will, and acts of kindness on the part of the prisoner towards the deceased, are always considered important evidence, as showing what was bis general disposition towards the deceased; from which the jury may be led to conclude that his intention could not have been what the charge imputes. Phill. Ev. 491, 8th ed. So antecedent menaces may be given in evidence, to show the prisoner's malice against the deceased, see post, p. 88. So on the trial of an information. against the proprietor of a newspaper, for a seditious libel, Lord Ellenborough, ruled that the defendant had a right to have any parts of the same paper, upon the same topic with the libel, or fairly connected with it, read, although locally disjoined from the libel. Passages, his lordship observed, of the same paper, tending to show the intention and mind of the defendant with respect to the specific paragraph, must be very material for the consideration of the jury. Lambert's case, 2 Campb. 398. In a case of arson, where it was opened by the counsel for the prosecution that evidence would be given of expressions of ill-will used by the prisoner to the prosecutor, Williams, J., held that the prisoner's counsel might cross-examine the prosecutor, to show that other persons had also used expressions of ill-will towards him. Stallard's case, 7 C. and P. 263 (a).

As, in trials for conspiracies, whatever the prisoner may have done or said, at any meeting alleged to be held in pursuance of the conspiracy, is admissible in evidence on the part of the prosecution against him; so on the other hand, any other part of his conduct at the same meetings, [*81] will be allowed to be proved on his behalf; for the intention and design of a party at a particular time are best explained by a complete view of every part of his conduct at that time, and not merely from the proof of a single and insulated act or declaration. Phill. Ev. 499, 8th ed. On the trial of an indictment for a conspiracy to overthrow the government, evidence was given to show that the conspiracy was brought into overt act, at meetings, in the presence of the prisoner Walker. His

(a) Eng. Com. L. Rep. xxxii. 504

counsel was allowed to ask, whether at those times he had heard Walker utter any word inconsistent with the duty of a good subject. He was also allowed to inquire into the general declarations of the prisoner at the meetings, and whether the witness had heard him say any thing that had a tendency to disturb the peace. Ibid. 23 How. St. T. 1131. 31 Ïd. 43. The acts and declarations of a prisoner, given in evidence in his favor, ought to be connected both in point of subject matter, and of time, with the acts or declarations proved against him. See Phill. Ev. 500, 8th ed. In the two following cases, however, great latitude was allowed on trials for high treason. Where the overt act charged was, that the prisoner, to compass the king's death, conspired with others to call a convention of the people, &c.; the prisoner's counsel was allowed to ask the witness whether, before the time of the convention, he had ever heard from the prisoner what his objects were, and whether he had at all mixed himself in the business. Hardy's case, 24 How. St. Tr. 1097. So in Horne Tooke's case, 1 East, P. C. 61; 25 How. St. Tr. 545, evidence having been given on the part of the crown, of several publications containing republican doctrines and opinions, which had been distributed by the prisoner during the period assigned in the indictment (for high treason) for the existence of the conspiracy the prisoner offered, to put in a book, written by him, expressive of his veneration for the king and constitution; this was objected to, as being antecedent to the period of the conspiracy, and not relating to the particular transaction. After argument, the book was admitted, on the ground that it had reference to the proof given in support of the charge, to rebut the idea, that a reform in parliament was a pretence made by the prisoner, and that his real object was to overturn the government. The soundness of this decision has been doubted by Lord Ellenborough, who said, that if the point should ever occur before him, it would become his duty seriously to consider whether such evidence should be admitted. Lambert's case, 2 Campb. 409. In the following cases a more strict limit was placed to the investigation of the acts and declarations of a prisoner. On the trial of Lord George Gordon, a witness was asked by his counsel, on cross-examination, as to a statement made by the prisoner on the night before the meeting, in St. George's Fields, and with respect to which, such evidence had been produced. The question was overruled, and Lord Mansfield said, that as the counsel for the crown had given evidence of what the prisoner said at the meeting, on the 29th of May, the counsel for the prisoner might show the whole connection of what the prisoner said, *be- [ *82] sides, at that meeting; but that they could not go into evidence of what he said on an antecedent day. 21 How. St. Tr. 542. So in Hanson's case, on the charge of promoting a riot, the prisoner's counsel was not allowed to prove what he had said privately to a friend, previously to his going to the place of riot, respecting his motives in going thither. 31 How. St. Tr. 1281.

On the trial of an indictment for a conspiracy to defraud, the written correspondence of the defendant, with another of the conspirators relating to a transaction in question was allowed to be read, in order to show that the defendant was deceived by his correspondent, and was not a participator in the fraud. Per Best, J. "I think them admissible; for what the parties say at the time is evidence to show how they acted." Whitehead's case, 1 B. and P. 67 (a).

(a) Eng. Com. L. Rep. xi. 316.

Cases where evidence of other transactions is admissible as referable to the point in issue-cumulative offences.] Where the offence is a cumulative one, consisting, itself, in the commission of a number of acts, evidence of those various acts, so far from being inadmissible, is essential to the proof of the charge. Thus on an indictment against the defendants for a conspiracy, to cause themselves to be believed persons of large property, for the purpose of defrauding tradesmen; after proof of a representation to one tradesman, evidence was offered of a representation to another tradesman at a different time, and admitted by Lord Ellenborough, who said that cumulative instances were necessary to prove the offence, and that the same sort of evidence was allowed on an indictment for battery. Roberts' case, I Campb. 399 (1).

Cases where evidence of other transactions is admissible as referable to the point in issue-guilty knowledge.] In various cases it is necessary to prove a guilty knowledge in the prisoner, with regard to the transaction in question; and for this purpose evidence may be given of circumstances not connected with the particular offence, in order to raise a presumption of a guilty knowledge in the prisoner at the time of the offence committed. On this ground, evidence of other offences of the same kind, committed by the prisoner, though not charged in the indictment, is admissible against him.

This evidence most commonly occurs in cases of indictments for uttering forged instruments, knowing them to be forged, and false coin, knowing it to be counterfeit, in which the guilty knowledge is the principal ingredient of the offence (2). The prisoner was charged with uttering a bank of England note, knowing it to be forged; evidence was offered for the prosecution, that the prisoner had uttered another forged note in the same manner, by the same hand, and with the same materials, three months preceding, and that two ten pound notes and thirteen one pound notes of the same fabrication, had been found on the files of the company, on the back of which there was the prisoner's handwriting, but it did not ap[*83] pear *when the company received them. This evidence was admitted, but the case was referred to the opinion of the judges, the majority of whom were of opinion that it was admissible, subject to observation, as to the weight of it, which would be more or less considerable, according to the number of the notes, the distance of time at which they had been put off, and the situation of life of the prisoner, so as to make it more or less probable, that so many notes could pass through his hands in the course of business. Ball's case, Russ. and Ry. 132 (a); 1 Campb. 324, S. C. (3).

(1) In an action for a conspiracy to defraud A. by falsely representing B. to be a man of credit, evidence that such representations were made to others, in consequence of which such other persons made the same representations to A. is admissible. Gardner v. Preston, 2 Day's Cases, 205. To prove fraud against the defendant, a transaction between him and a third person of a similar nature to the one in question may be given in evidence. Snell & al. v. Moses & al., 1 Johns. 99. See also Rankin v. Blackwell, 2 Johns. Cas. 193. In an indictment for obtaining goods by false pretences, it is allowable to prove that the same pretences were used to another. Collins' case, 4 Rogers' Rec. 143.

(2) On an indictment for passing a counterfeit silver dollar knowingly, evidence that defendant had counterfeited other dollars, was held not admissible. State v. Odel, 2 Const. Rep. 758. But on an indictment for counterfeiting money, evidence of possession of instruments of coining is admissible. State v. Antonio, Id. 776.

(3) The State v. Houston, 1 Bailey, 300. Martin v. The Commonwealth, 2 Leigh, 745. Hendrick v. The Commonwealth, 5 Leigh, 707. But the notes must be produced, or proved (a) 1 Eng. C. C. 132.

The prisoners were indicted for uttering bank notes, knowing them to be forged. The trial took place in April, and to prove their guilty knowledge, evidence was given, that in February they had uttered, on three several occasions, forged bank notes to three different persons, and that on being asked at each place for their names and places of abode, they gave false names and addresses; and the court was of opinion that this evidence was admissible. Lord Ellenborough said, that it was competent for the court to receive evidence of other transactions, though they amounted to distinct offences, and of the demeanor of the prisoner on other occasions, from which it might fairly be inferred that the prisoner was conscious of his guilt, whilst he was doing the act charged upon him in the indictment. Heath, J., said, "the charge in this case puts in proof the knowledge of the person, and as that knowledge cannot be collected from the circumstances of the transaction itself, it must necessarily be collected from other facts and circumstances." Whiley's case, 2 Leach, 983. 1 New Rep. 92, S. C.

Not only is evidence of the act of passing other forged notes admissible to prove the prisoner's guilty knowledge, but proof of his general demeanor on a former occasion will be received for the same purpose (1). The prisoner was indicted for forging and knowingly uttering a bank note, and the question was, whether the prosecutor, in order to show that the prisoner knew it to be forged, might give the conduct of the prisoner in evidence, that is, whether from the conduct of the prisoner on one occasion, the jury might not infer his knowledge on another, and all the judges were of opinion that such evidence ought to be received. Tattershall's case, cited by Lord Ellenborough, 2 Leach, 984.

It has been decided that it is not necessary that the other forged notes should be of the same description and denomination as the note in question (2). The point was doubted in the following case. The prisoner was indicted for uttering on the 27th November, 1812, a 5l. Bank of England note, knowing it to be forged. To show the guilty knowledge, it was proved, that about six weeks previously to the time in question, the prisoner had tendered a 11. Leicester Bank note, which was supposed to be forged, but was not produced on the trial; that on the 4th July, 1812, he passed a forged 21. Bank of England note, (which was produced); that at the latter end of November, 1812, he tendered a 51. Bank note, supposed to be forged, but not produced at the trial; and that again in November, he paid away a 21. Bank note, (not produced) but supposed to be forged; being convicted, the opinion of the judges was taken on *this evi- [ 84 ] dence, and they held, that as evidence had been left to the jury as of forged notes, which were not proved to have been forged, the prisoner should be recommended to mercy. Some of the judges seemed to think, that if these bills had been clearly proved to be forged bills, yet being bills of a different description and denomination from that on which the prisoner had

to be destroyed or in the prisoner's possession and not produced on notice. People v. Lagrille, 1 Wheeler's C. C. 415. Helm's case, 1 Rogers' Rec. 46. Case of Smith & al., 4 Id. 166. So in accordance with the text, if the passing of the other note be at a remote period, it is not sufficient. Dougherty's case, 3 Id. 148. But proof of the scienter is not admissible before the principal charge is established. Jones' case, 6 Id. 86.

(1) Evidence of a prisoner's endeavors to engage a person to procure for him counterfeit money; of his declared intention to become acquainted with a counterfeiter, and to remove to a place near his residence, is admissible on a prosecution for passing a counterfeit note, to prove the scienter. Comm. r. Finn, 5 Rand. 701.

(2) See The People v. Lagrille, 1 Wheeler's C. C. 415.

been indicted, they ought not to have been given in evidence; and some of their lordships seemed to doubt whether the distance of time, was not too great. At the conclusion of the report of this case, it is said, quære, whether these are not chiefly subjects of observation. Millard's case, Russ. & Ry. 245 (a). The prisoner was indicted for uttering a forged 5l. Bank of Ireland note. To show guilty knowledge, it was proposed to give in evidence the uttering by the prisoner of two forged notes of the bank of Messrs. Ball and Co., bankers in Dublin. This evidence being objected to, on the ground, that the notes were of a different description. Littledale, J., without hesitation overruled the objection, and the prisoner was convicted. Kirkwood's case, 1 Lewin, C. C. 103, and see Hodgson's case, Id. 103, post, p. 85. The prisoner was indicted for forging and uttering a note in the Polish language. In support of the scienter the prosecutor gave evidence of the particulars of a meeting at which the prisoner agreed with the prosecutor, (who was an agent of the Austrian government, and had been sent over to endeavor to detect persons implicated in the forgery of Austrian notes) to make him 1000 Austrian notes for fifty florins. This evidence was objected to on the part of the prisoner, as it was a transaction relative to notes of a different description from the notes in the indictment, besides which no Austrian notes were in fact made. Littledale, J., however, admitted the evidence, and the prisoner was found guilty, but judgment was respited, that the opinion of the judges might be taken, who held the evidence admissible. Ball's case, 1 Moo. C. C. 470 (b).

It appears, that by the Scotch law, evidence of other forged notes is admissible, though they be not of the same description as those forged. "The most important circumstance," says an eminent writer on the criminal law of Scotland, "and which is generally per se, decisive as to guilty knowledge, is if other forged notes are found on the prisoner. If four or five forged notes, and especially forgeries on the same bank with that uttered, are found on the prisoner, it is hardly possible to form any other conclusion, than that he is a dealer in these dangerous instruments, caught in the very act of disposing of them. This will amount to a moral certainty if the other forged concealed in his possession, as in his hat, in a concealed pocket, sewed between his coat and the lining, or the like. On the other hand, the weight of this circumstance, always great, must be diminished, if the notes found on him were nowise concealed, and were exhibited by him without any suspicious circumstances or appearance of conscious guilt." Alison on the Princ. of the Cr. Law of Scotland, 420.

Though evidence of the uttering of other forged notes may be given to show guilty knowledge, yet what was said at another time by the prisoner [ *85 ] respecting those utterings, is inadmissible. Where evidence to this effect was tendered, Bayley, J., stopped it, and said, "The prosecutor is at liberty to show other cases of the prisoner having uttered forged notes, and likewise his conduct at the time of uttering them. But what he said or did at another time, collateral to such other utterings, can not be given in evidence; as it is impossible that the prisoner can be prepared to contradict it." Phillip's case, 1 Lewin, C. C. 105.

Whether, where the other forged note, the issuing or possession of which is proposed to be given in evidence, in proof of guilty knowledge,

(a) 1 Eng. C. C. 245. (b) 2 Ibid. 470.