A Treatise on the Law of Criminal Evidence: Including the Rules Regulating the Proper Presentation of Evidence and Its Relevancy, the Mode of Proof in Particular Classes of Crimes, and the Competency and Examination of Witnesses, with Full References to Decisions

Portada
Bobbs-Merrill, 1898 - 947 páginas

Dentro del libro

Comentarios de la gente - Escribir un comentario

No encontramos ningún comentario en los lugares habituales.

Páginas seleccionadas

Contenido

Burden of proof and presumption of innocence distinguished 3940
39
Burden of proofGeneral rule casting it upon prosecution 4043
40
Burden of proving a negativeFacts peculiarly within knowledge of party alleging them 4344
43
24a Constitutionality of statutes regulating the burden of proof
45
CHAPTER III
46
The accused as a witness before the grand jury 5152
51
Sufficiency of evidence before the grand jury
52
The indictment is not evidence
53
CHAPTER IV
54
Proof of essential particulars of persons time and place 5556
55
Variance in namesIdem sonans 5657
56
Variance in proving species or genus of animals 5758
57
Proving the venueJudicial notice of general geographical facts 5859
58
The venue may be proved by circumstantial evidenceProof be yond a reasonable doubt not required 596i
59
Proof of venue in forgery and crimes committed in retirement 6162
61
CHAPTER V
63
Primariness of witnessesProof of handwriting 6466
64
SECTION PAGES 40 Evidence which is required to be in writing
66
41a The necessity for showing loss or destruction of the writing 6769
67
Notice to produce 6970
69
Writings whose existence and contents are in issueImpeachment by contradictory writings 7071
70
Primary evidence of collateral facts 7174
71
Exception in the case of proving general results 7476
74
Proof of records and official appointments 7677
76
Physical condition of personal property 7778
77
Incriminating articlesWeapons clothing etc 7881
78
Inscriptions on bulky articles 818J
81
Photographs as primary evidenceFersonal identity 8285
82
Accuracy and relevancy of photographs 8586
85
2 Paintings and drawings
87
Real evidenceInspection by jurors 8890
88
Compelling accused to submit to inspection or to stand for identi fication 9092
90
Mode and effect of identifying evidence 9295
92
SECTION PAGES
93
Identification of the voice 9596
95
CHAPTER VI
97
58a Evidence obtained by searches legal and illegal 101104
101
Mode of examining the accused 104105
104
CrossexaminationIncriminating and disgracing questions 105107
105
Examination as to prior imprisonment etc 107111
107
Statutory limitation of crossexamination to relevant matters m112
111
Mode of crossexamination
112
Privileged communications on the crossexamination
113
The bad character of the accusedWhen admissible to impeach him 114115
114
Commenting on the failure of the accused to testify 115117
115
Exclusion or withdrawal of comments on failure to testifyFail ure to call other witnesses or to testify to incriminating facts 117119
117
Accomplices definedProvince of court and jury 119122
119
7a Accomplices when jointly indictedWitnesses for each other 122124
122
Accomplices as witnesses for the state 124126
124
SECTION p
126
The nature of the crime as a test of corroborationSufficiency
132
Bad characterWhen admissible 139141
139
Mode of proofIrrelevancy of personal opinionsDerogatory
146
Number of witnesses to character
152
Evidence of other offenses to show specific intention or guilty
161
Identity of means employed in several crimesIdentity of
168
Mental and physical conditions as influencing the declarations 180182
180
CHAPTER X
187
Sending for legal or spiritual advisers nature of wounds
193
Dying declarations distinguished from those which are a part
199
in Declaration is admissible in its entiretyContradictoryor
206
Dying declarations made by children
212
CHAPTER XI
213
Falsehoods by accused or suspected persons 214216
214
Demeanor subsequent to crime 216218
216
The flight or attempted escape of the accused 218222
218
Explanation by accused of his flight or attempted escape 222225
222
119a Declarations which are selfserving are rejected 225226
225
Resistance to arrest 226227
226
Fabricating or suppressing evidence 227229
227
Silence under accusations of guilt 230232
230
Attendant circumstances explaining motives and reasons of si lence 232234
232
The accusatory assertion or question 234237
235
CHAPTER XII
238
Voluntary character of confessions 242245
242
Burden of proof to show voluntary character 245247
245
Circumstances under which confession becomes involuntary 247249
247
Confessions made while under arrest 249251
249
Effect of cautioning the accused 251254
251
Confessions under oath 254256
254
Confessions taken at the preliminary examination 256258
256
Mode of proving confessions made at the preliminary examina tion 259261
259
Confessions of persons associated in a conspiracy
261
Confessions by intoxicated persons 263265
263
Admissions receivable though involuntary
265
When facts discovered admit parts of an involuntary confes sion 266267
266
Confessions procured by persons in authority 267269
267
Confession need not be spontaneous 260271
269
Confessions made by signs or gestures 271272
271
Confessions of treason
272
Judicial confessionsPlea of guilty 273276
273
SECTION PAGES 145 Confessions of persons not indicted 276277
276
The value of confessions as evidence 277279
277
Mode of proofWhen corroboration is required 279281
279
147a Credibility of confession and use of in favor of the accused 281283
281
CHAPTER XIII
284
Distance and period of absence 286288
286
Relevancy of evidence
288
Reasonable doubt 289290
289
Cautioning the jury 291295
291
CHAPTER XIV
296
Uncontrollable impulse and insane delusions 298299
298
Presumption of continuance of insanity 299300
299
Burden of proof to show sanity and insanity 300302
300
Proof of insanity beyond a resonable doubt not required 303304
303
The character and range of evidence to show insanity 305306
305
Evidence showing the appearance conduct and language of the accused after the crimeEvidence of insanity in family of ac cused 306308
306
Nonexpert evidence 308310
308
Nonexpert must relate in evidence facts on which his impres sion is basedDegree of knowledge required 310312
310
Expert evidenceWhat constitutes an expertPhysical exami nation of accused to ascertain sanity 312316
312
Evidence of voluntary intoxicationWhen irrelevant 316317
316
Insensibility or insanity from indulgence in intoxicants may be shown 3i73t8
317
Evidence of intoxication as bearing on a specific intent or on premeditation 318320
318
Mode of proving or disproving intoxication 320321
320
Morphine habit
321
CHAPTER XV
322
Executive communications and transactions 324325
324
Communications to police officials 325326
325
Communications to attorneys at law 326327
326
Communications made by or to the agent of the attorney 328330
328
Character and date of the communications 330332
330
Communications made in contemplation of crime 332335
332
Permanency of the privilegeWaiver 335337
335
Writings when privileged 337338
337
Communications to spiritual adviser 338340
338
Communications passing between medical practitioners and their patients 340343
340
Death of the patientPurpose of the communicationContem plated crime 343344
343
Communications made during an examination to detect or ascer tain sanity
344
Indecency of the facts to be proved 345346
345
Privileged communications between husband and wife 346347
346
Husband and wife as witnesses in criminal proceedings 347349
347
Statutory competency of husband and wife 349350
349
Confidential communications between husband and wife 350353
350
Husband or wife of codefendant as a witness for or against his associate in crimeTestimony of husband or wife on trial of a third person tending to cr...
353
Valid marriage is necessary
355
Privilege as relating to grand jurors 357359
357
Statutory regulations of the competency of grand jurors 350360
360
CHAPTER XVI
362
Essential facts to be shown 364365
364
Identity of crime and person 365366
365
Criminal judgments as admissions
367
CHAPTER XVII
368
Religious belief of the witness 370372
370
InsanityWhen disqualifying a witness 372373
372
Mode of proving insanity of witness 373374
373
Deaf mutes as witnesses 374375
374
Children on the witness stand 375378
375
Incompetency of witnesses caused by conviction of infamous crime 378379
378
The pardon of the convictWhen restoring competency 379380
379
Mode of proving pardonParol evidence 380381
380
Statutory regulations removing the incompetency of persons convicted of crime 381383
381
Statutes construed
383
CHAPTER XVIII
384
tion 386388
386
Forgetful witness may be asked leading questions 388390
388
Questions put to the witness by the court 390392
390
Judicial remarks upon the demeanor or credibility of a witness during his examination
393
Answers must be responsive
394
Character of the memorandum employed to refresh the memory 397398
397
Purpose and importance of crossexamination 398399
398
When right to crossexamine is lostCrossexamination con fined to matters brought out on direct 399402
399
Crossexamination to test credibility 402405
402
When answers to questions involving collateral matters asked in crossexamination may be contradictedHostility or friend ship towards the accused 40...
405
Redirect examination 40741C
408
Recalling witnesses 410411
410
Exclusion and separation of witnesses 41141
411
SECTION PAGES 226 Refusal to testify 414415
414
Interpreting the language of the witness 415416
415
Improper reception of evidence by the jurors 416418
416
View by the jurorsDiscretionary power of the court 418419
418
Purpose of the view is to afford evidence
419
Presence of the accused while taking testimony 421422
421
Experiments in and out of court 422424
422
CHAPTER XIX
425
hostile 426429
426
Impeachment of adverse witnesses by showing bad reputation for veracityBelief under oath 429431
429
Impeachment by showing the general bad character of the wit ness aside from truthfulness 431433
431
Impeachment of the adverse witness by showing contradictory statementsNecessity for foundation 433436
433
Impeachment by contradictory affidavits depositions and other writings 430437
436
Contradictory writings must be shown to the witness who is to be impeached
438
Previous silence as impeachment 430440
439
Relevancy of evidence to show the general reputation for truth fulness of a witness who has been impeached 440441
440
Limitations upon the right to ask questions which disgrace the witness 442443
442
Impeachment by showing social connections occupation and manner of living 443446
443
When and how previous imprisonment or conviction of crime may be shown 446447
446
Incriminating questions 447452
447
Interest and bias of the witness as impeachment 452456
452
Constitutional right of the accused to compulsory process
458
Change of venue for the convenience of witnesses
465
Witnesses sick or out of the jurisdictionDistinction between
471
Continuance when granted because of absence of witnessDis
477
Admissions to avoid continuanceConstitutional right of
483
CHAPTER XXII
487
Character and analysis of a general verdict 489490
489
Charging the jury on the lawPhysical power of the jury to disregard the judges charge 490492
490
Charging on the evidence 493494
493
Assumption of facts in charge
495
Directing a verdict 496498
496
Order and manner of introducing the proof
498
280a The credibility of detectives and experts 499500
499
CHAPTER XXIII
501
EmbezzlementThe intention to convert 502505
502
Proving other acts of embezzlement 505506
505
Evidence of demand and refusal 506507
506
The existence of the fiduciary relation 507508
507
Competency of owner of stolen goods as witnessProof of his nonconsent 518519
518
Identifying the stolen property 519522
519
Recorded brands of cattle 522523
522
Evidence of venue and of the value of money or property 523525
523
Inference from possession of the property stolen
525
Recent and exclusive character of possession 526527
526
Burden of explaining possessionCharacter of explanatory evi dence 528530
528
SECTION PACES 302 Explanatory declarations 530531
530
Evidence of footprints 531532
531
Financial standing and expenditures of the defendant
532
Stolen goods found through inadmissible confession
534
Malicious mischief
535
Ownership and value of propertyEvidence that the accused acted in good faith 537538
537
Maliciously injuring animals 538539
538
Injuries to grain trees crops etc 539540
539
CHAPTER XXIV
541
The result of the autopsy as evidence 546547
546
Variance in proof of means or weapon producing death 548551
548
Weapons as evidence 551552
551
Identity of the deceased
552
Expert testimony and the employment of a chemical analysis in cases of homicide by poisoning 553555
553
Relevancy of evidence to show poisoning 555556
555
319a The declarations of the deceased 556558
557
Presumption and proof of malice 558560
558
Connected crimes 560562
560
Conduct of the accused subsequent to the crime 562563
562
Facts showing possible motive 563568
563
Competency of evidence showing the habits character and dis position of the deceased 568570
568
Nature of the proof required to show the character of the de ceased 570572
570
Evidence of threats by the deceased 572575
572
Evidence to prove the peaceable character of the accused 575576
575
Threats by the accusedGeneral nature of these threats 576578
576
Form character and mode of proving threats 578580
578
Declarations forming a part of the res gestee 580582
580
330a Declarations of the accused after the crime 582583
582
Declarations of third persons and cries and exclamations of by standers 583584
583
Threats against deceased by third persons 584585
584
SECTION PAGts 333 Animosity between the deceased and the accused 585587
587
Conspiracy to commit homicide
589
337 Footprints 590591
590
SelfdefenseBurden of proofMalice 591592
591
338a The alibi of the alleged victim 593594
593
CHAPTER XXV
595
Abduction of a minorProving the nonconsent of the mother or other guardian
597
Evidence to show the age of prosecutrix 599600
599
Abduction for purposes of prostitution or concubinage 600602
600
Abortion at common law and by statute distinguished 6o_ 345 Intention to produce an abortionEvidence of other crimes
602
Victim of abortion is not an accompliceCorroboration when required 603604
603
Necessity for the operationBurden of proof 604605
604
Declarations of present pain and suffering and dying declara tions of the victim 605606
605
Evidence of the womans physical condition and illnessDirect and circumstantial evidence 606608
606
Expert testimony of physicianEvidence afforded by the post mortem 608609
608
Exception to rule regulating privileged communications to phy sicians
609
610
610
Evidence of other assaults
614
356a Declarations constituting a part of the res rjestcc
615
RobberyIntention present and force employed 617621
617
The crime of mayhem 621622
621
SECTION PACES 360 Sodomy 622623
622
Criminal libel defined
623
The publication of the libel 624626
624
The meaning of the language used
626
Evidence of the truth as a defense 629631
629
CHAPTER XXVI
632
Proof of actual burning requiredNonaccidental character of fireproof of premises burned
634
Threats and declarations by the accusedRemoteness 635636
635
Relevancy of evidence to show the intentProof of other sim ilar crimes 636638
636
Evidence of preparation to show that the accused was near the burned premises 638640
638
Burglary definedEntrance at nightimePreparations to com mit 640642
640
Evidence to prove forcible breaking in and enteringThe condi tion of the premises 642643
642
Proof of constructive breakingNonconsent of ownerOwn ership and value of property 643645
643
Correspondence of footprints with the footwear of the accused 645
645
374a Evidence obtained by trailing with bloodhounds 648650
648
Burglarious tools in the possession of the accused
650
The felonious intention present in entering 651652
651
Presumption from the possession of stolen property 653654
653
Articles stolen from the premises as evidence 655656
655
CHAPTER XXVII
657
Evidence to prove the intercourseActs of adultery other than that charged 658659
658
Competency of accomplice 659600
659
Character of evidence to prove the fact of marriage 660661
660
Sexual crimes
661
SECTION PAGES 384 Lascivious cohabitation or living in unlawful cohabitation 662663
662
Seduction defined
663
Evidence to prove the promises 664665
664
Relevancy of the previous conduct of the parties 665667
665
The examination credibility and corroboration of the prosecu trix
667
Character of corroborative evidence required 668669
668
The marriage of the accused to the seduced female 669670
669
The chastity of the femaleWhat constitutes chastity and how it may be proved 670673
670
The presumption of chastity
673
Defilement of female ward or servant
674
Evidence to show the sexual intercourse 675676
675
The kinship existing between the partiesEvidence of accom plices
676
BigamyThe intentInvalidity or annulment of first marriage
677
Competency of wife of accused
678
Absence of lawful spouse
679
Proof of marriage by reputation cohabitation and conduct 680681
680
The admissions of the accused as evidence to prove the mar riagePrimary evidence of the ceremonyWhen required 681682
681
Xlarriage certificates and transcripts of records as evidence Presumption of validityVenue 682683
682
Bigamous cohabitation
683
CHAPTER XXVIII
684
Relevancy of the victims complaintsProving the details of what she said 687688
687
Proving the details to impeach or corroborate 688689
688
Delay in making complaintReasons for delay 689691
689
Medical testimony
692
The prosecutrix as a witnessHer competency and credibility Infancy of the prosecutrix when rendering her incompetent as a witness 694696
694
SECTION PAGES 415 The prior relations of the parties
697
Proof of carnal knowledge requisite
698
The force or fraud employedThreats and mortal fearFailure to make outcry 699701
699
Reputation of the prosecutrix for chastityProof of specific un chaste acts 701704
701
CHAPTER XXIX
705
Competency of witnesses
707
Fraudulent intent and guilty knowledgeCircumstantial evi dence to show 709710
709
Evidence of similar crimes to show the intentEffect of acquit talRelevancy of possession of forged papers on charge of forgery 711713
711
Proof of uttering forged paper
714
Proving the venue
716
Proving the corporate existence of the bank upon which the forged check is drawn 717718
717
Proving the handwritingExpert evidenceStandards of com
718
parison 718720
719
Evidence to show that the forged writing could not accomplish the purpose intended 721722
721
Sufficiency of evidencePecuniary condition of the accused 722723
722
CounterfeitingElements of the crimeIntent and guilty knowledgeEvidence of similar offenses 724725
724
Evidence to show that counterfeit money or implements for its manufacture were found in the possession of the accused 725726
725
Resemblance to the genuine 726727
726
False pretenses 727729
727
Evidence to show the intention of the owner
729
Evidence of other similar crimes not inadmissible when relevant to show the intent to defraud 731732
731
The pretenses made and evidence to show their falsity 732734
732
The pretenses must have been calculated to deceive 734735
734
SECTION PACES 441 The value of the property obtained 735736
735
Belief in the false representations
736
Evidence of the pecuniary condition of the accused at the date of making the representations 737738
737
The false pretenses not necessarily verbal 738739
738
Proving the venue
739
CHAPTER XXX
740
Intention to obstruct justiceEvidence of threats or to show validity of warrant 742743
742
Preventing attendance of witnesses
743
EmbraceryEvidence required 744745
744
Bribery definedEvidence of circumstances to prove corrupt intention 745
745
Judicial notice of official character and acts 746747
746
Necessity for reliance on evidence of accomplices in the bribery Compulsory examination of accomplice 747748
747
Proving other acts of bribery 748749
748
Bribery of votersJudicial notice of elections 749750
749
ExtortionIntent and guilty knowledgeEvidence to prove ig norance or mistake of law or fact 750751
750
Value of the thing extortedBurden of proving exception to statute
751
Contempt definedInherent judicial power to punish
753
Procedure in receiving evidence of constructive contempt 755758
755
EscapeDistinction from prison breach
758
Aiding prisoner to escape 75960
759
Illegality of arrest when relevant 760761
760
PerjuryThe intent to swear to what is false 761762
761
Materiality of the testimony 1 63764
763
Number of witnesses required and corroboration of single wit ness to prove falsity 76466
764
Falsity of the testimony 766767
766
Proof of the testimony alleged to be false 767769
767
CHAPTER XXXI
770
Evidence to prove manner of playing
771
The bet or wagerPlaying in public 772773
772
Accomplice evidence
774
Presumptions and burden ol proof
776
Mailing obscene literature etc 777778
777
Evidence obtained by decoy letters 778779
778
Adulteration of food drugs etc 770780
779
Evidence furnished by analysis 780782
780
Keeping disorderly house 782784
782
DuelingSending a challenge to fight a duel 784785
784
Carrying concealed weaponsHow concealment may be proved Intent 785788
785
Apprehension of danger 788789
788
Character of the defendant as an officer or traveler 789791
789
Forcible entry and detainer
791
Affray
792
Riot 793794
793
Conspiracy 794795
794
Circumstantial evidence 795797
795
Admissibility of acts and declarations of fellowconspirators 797799
797
Must be made during existence of and in furtherance of
799
conspiracy 709801
801
CHAPTER XXXII
803
Burden of proof and amount of evidence required in interna tional and interstate extradition to show criminality and other essential facts 804806
804
Fugitive character of the person claimed for extradition 806808
806
Evidential rules governing interstate extradition 808809
808
Character form and authentication of indictments etc in in terstate extradition 809811
809
and effect of records of other states 811812
811
General rules regulating the taking of evidence in foreign extra dition 812814
812
Authentication by consular certificate of warrants and other papers used as evidence in international extradition 814815
814
The competency of certified copies as evidence of criminality 815816
815
Proof of foreign laws and treaties in international extradition 816817
816
Proof of laws in interstate extradition 817818
817
CHAPTER XXXIII
819
Conviction of the former crime must have been prior to the commission of the crime now being tried
822
Effect of pardon of former crime in excluding proof of prior conviction
823
Effect of plea of not guilty
824
Necessity of proving discharge from prison
826
Proof of the identity of the accused with the person previously convicted 827829
827
CHAPTER XXXIV
830
must be shown 831833
831
Burden of proofThe new evidence must be set out in the affi davits
833
Credibility of the new evidence 834835
834
Materiality and relevancy of the newlydiscovered evidence
835
New evidence impeaching merely
836
Degree of proof requiredDoctrine of reasonable doubt not
840
Evidence rebutting the presumption of legitimacy 845846
845
Admissibility of the admissions and declarations of the parties 851853
851
Derechos de autor

Términos y frases comunes

Pasajes populares

Página 297 - ... to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing ; or, if he did know it, that he did not know he was doing what was wrong.
Página 297 - As these two questions appear to us to be more conveniently answered together, we submit our opinion to be that the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction.
Página 21 - It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
Página 811 - And the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are or shall be taken.
Página 188 - Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity when the party is at the point of death, and when every hope of this world is gone ; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth...
Página 810 - It must appear, therefore, to the Governor of the state to whom such a demand is presented, before he can lawfully comply with it: First, that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled, by...
Página 142 - It has been usual to treat the good character of the party accused as evidence to be taken into consideration only in doubtful cases. Juries have generally been told that where the facts proved are such as to satisfy their minds of the guilt of the party, character, however excellent, is no subject for their consideration ; but...
Página 808 - Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor...
Página 628 - ENACTED, that, On every Such trial, the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue...
Página 810 - The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus.

Información bibliográfica