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able and convincing testimony is not required, no principle of law is violated by the introduction of faint or weak evidence, and the withholding of that which is more strong, cogent and convincing, if both are equally original. But it is a very natural inference, partaking somewhat of the character of a legal presumption, at least in the absence of explanatory circumstances, that a party who is withholding the best evidence of any fact in issue is prompted by a wrong motive which would be defeated by its production. When, therefore, evidence is produced that presupposes or suggests the existence of other evidence of the same facts of a more original character, that is to say, which is more immediate, and which lies closer to the material facts, the evidence introduced will be regarded as substitutionary, and, as such, will be rejected.

The rule requiring the production of primary evidence does not compel a choice between or among several witnesses, nor does it necessitate the calling of any particular witness among several who have knowledge of a given fact.3

So the testimony of a witness, claiming to be a minor, to his own age is primary evidence, even if his parents are living," while the oral evidence of a parent to the age of his child is also primary, the entry in a family Bible not being of necessity the best evidence.10

An exception is recognized in the case of subscribing witnesses as regards the proof of instruments which are by statute invalid unless witnessed. If a subscription by witnesses is not required by statute, the execution of the instrument may be shown by the evidence of any person who saw it signed, or who is familiar with the handwriting of a person who signed it, or otherwise, though it is in fact subscribed by witnesses. Hence, generally, in proving handwriting, the testimony of a witness acquainted with it is not secondary to that of the writer himself," nor should the testimony

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of the former be excluded when offered because the testimony of the latter can be obtained.

§ 40. Evidence which is required to be in writing.-Oral evidence is inadmissible if the law required primary evidence in writing, or if the party to substantiate his claims must produce a writing. Judicial records, other public records, deeds of conveyance and contracts not to be performed within a year are required by statute to be in writing. Hence the fact of another indictment pending,12 a prior verdict of acquittal or conviction,13 the proceedings and the testimony taken at a coroner's inquest, or at the preliminary examination, or before the grand jury, or a justice of the peace,15 or any body keeping a record of its actions, must be shown by the record or by a properly authenticated copy.10

14

§ 41. Statutory requirement as regards evidence of certain facts.Where by statute any fact or transaction must be evidenced in

man who signed the documents *** was not of a higher grade of evidence than the testimony of a man who had seen him make such signature, or who was acquainted with his writing and deposed to his opinion." See, also, Underhill on Evid., §§ 132, 139-141.

12 Saxon v. State, 96 Ga. 739, 23 S. E. 116; State v. McFarlain, 42 La. Ann. 803, 806, 8 So. 600; State v. Grayson, 38 La. Ann. 788; Huff v. State, 104 Ga. 521, 30 S. E. 808; Elliott v. State, I Ga. App. 113, 57 S. E. 972; Leftridge v. United States, 6 Ind. Ter. 305, 97 S. W. 1018. On a trial for murder, to prove that deceased had been tried for homicide, record must be introduced as evidence. State v. Andrews, 73 S. Car. 257, 53 S. E. 423.

13 Miller v. Commonwealth,

Ky.

113 S. W. 518; Von Vetsera, Er parte, 7 Cal. App. 136, 93 Pac. 1036. See § 195.

14 Bell v. State (Miss.), 38 So. 795; State v. Bringgold, 40 Wash. 12, 82 Pac. 132; Robinson v. State, 87 Ind. 292, 293; Epps v. State, 102 Ind. 539, 546, 1 N. E. 491; Sage v. State, 127 Ind. 15, 26, 26 N. E. 667; Leggett v. State, 97 Ga. 426, 24 S. E. 165; State v. Branham, 13 S. Car. 389; Wright v. State, 50 Miss. 332, 335; Cicero v. State, 54 Ga. 156; Oliver v. State, 94 Ga. 83, 84, 85, 21 S. E. 125; State v. Barrington, 198 Mo. 23, 95 S. W. 235; Campbell v. State, 123 Ga. 533, 51 S. E. 644. The fact that a preliminary examination was had may be shown orally. People v. Coffman, 59 Mich. 1, 26 N. W. 207. As to proof of judicial records, see Underhill on Evid., §§ 146-149. 15 State v. Ireland, 89 Miss. 763, 42 So. 797.

18 For mode of proving naturalization, see Underhill on Evid., § 31.

writing, it is usually necessary to consult the statute to understand its scope and effect, or to ascertain the correct mode of proof and when secondary evidence will be received. Generally, where the statute requires that written proof shall be made, oral evidence is secondary and inadmissible if the writing is procurable.

But where either the state or the prisoner can show to the satisfaction of the court that the writing was executed and has been destroyed, or cannot be found after a reasonable search, its contents may be proved by secondary evidence." Thus the contents of the warrant, on which the accused was arrested,18 or of the indictment against him,1o may be shown by parol where the loss of the writing is proved.20

In many states statutes exist which allow an instrument, duly acknowledged and recorded or registered, to be proved by a certified copy of the record, if the original instrument is not obtainable.21 Such a provision is of great benefit to one who, not being a party or privy to the writing, may never have had it in his possession, and hence may not be able to account for its absence by showing its loss or destruction. But the instrument itself is not made secondary evidence by a statute requiring record and allowing proof by a certified copy,22 nor can a party be excused from producing it when he can do so. For, unless the statute makes the copy equal in evidentiary value to the original, the copy is secondary evidence, and the absence of the original must be accounted for before the copy will be received.23

§ 41a. The necessity for showing loss or destruction of the writing. -The general rule that, before secondary evidence of the contents

"United States v. Reyburn, 6 Pet. Mo. 23, 95 S. W. 235; Campbell v. (U. S.) 352, 365, 8 L. ed. 424.

15 Commonwealth v. Roark, 8 Cush. (Mass.) 210.

"State v. Whitney, 38 La. Ann. 379. See Underhill on Evid. 343, ante, & 30.

20 A witness may not testify orally as to an offense charged in a warrant which he had himself issued. The warrant itself is the best evidence. State v. Talbert, 41 S. Car. 526, 529, 19 S. E. 852; State v. Barrington, 198

V.

State, 123 Ga. 533, 51 S. E. 644.
2 Commonwealth v. Emery, 2 Gray
(Mass.) 80; Commonwealth
Preece, 140 Mass. 276, 278, 5 N. E.
494; Underhill on Evid., §§ 134, 142c.

22 Chapman v. Gates, 54 N. Y. 132, 145; Triplett v. Commonwealth, 122 Ky. 35, 91 S. W. 281, 28 Ky. L. 974; Lorenz v. United States, 24 App. (D. C.) 337.

23 State v. Penny, 70 Iowa 190, 30 N. W. 561.

of a writing shall be received, its loss or destruction must be shown is applicable to criminal cases.2* A failure to observe this rule is error.25 Proof of loss or destruction may be taken in the absence of the jury.26 The question usually is whether the loss or destruction of the writing has been sufficiently proved. Proof beyond all reasonable doubt is not necessary to render secondary evidence competent. There must be proof of a diligent search made in places the writing is likely to be found.27 An attorney or other person may testify that papers or books in his possession have been lost if he had made a search.28 Generally the proof of a failure to find the paper should be given by some one who has actually made the search. A letter from a clerk of a foreign court stating that he had made a search and had failed to find any record of a certain judgment, is not a sufficient foundation to admit secondary evidence of it.29

The fact that the instrument whose existence is in question and whose contents it is sought to prove by secondary evidence was last seen in the possession of the accused, together with evidence of a search for it by the witness is sufficient to admit secondary evidence.30 Proof that a writing missing at the trial was used in evidence on a former trial, that it went out with the jury and it had not been seen since by any person, though a thorough search of the jury room and of the papers on file had been made is a sufficient predicate for secondary evidence.31 In all cases, the clerk or other official in whose custody the papers was last seen, may, and in fact ought to be produced and testimony of the search by him and of his inability to find the writing is usually sufficient.3° Where the evidence is that the deceased person destroyed certain

24 Commonwealth v. Johnson, 199 Mass. 55, 85 N. E. 188; Gould v. State, 71 Neb. 651, 99 N. W. 541; Donner v. State, 69 Neb. 56, 95 N. W. 40; People v. Nall, 242 Ill. 284, 89 N. E. 1012; State v. Foundstone (Mo. App., 1909), 124 S. W. 79; Skidmore v. State (Tex. Cr. App.), 123 S. W.

1129.

27 State v. Bennett, 137 Iowa 427, 110 N. W. 150.

28 State v. Shour, 196 Mo. 202, 95 S. W. 405.

29 Grabill v. State (Tex. Cr. App.), 97 S. W. 1046.

80 State v. Leasia, 45 Ore. 410, 78 Pac. 328.

31 Andrews v. State, 152 Ala. 16 44

25 Kerr v. State, 105 Ga. 655, 31 S. So. 696. E. 739.

"Summerlia v. State, 136 Ga. 791,

"Degg v. State, 150 Ala 3. 43 S 61 S. E. 849. 484.

letters, the reason she gave for destroying them may be proved and secondary evidence may then be received.33

§ 42. Notice to produce. In a civil case if a writing is known to be in the possession of the opposite party, or if its whereabouts are absolutely unknown, he should have notice to produce it, before secondary evidence of its contents can be received. This rule is applicable to criminal prosecutions with the qualification that, as the state has no power to compel the production of a writing in the rightful possession of the defendant, the notice to him is nugatory and may, perhaps, under some circumstances, be dispensed with.84

This is the case when the indictment, as in forgery, or larceny of a writing, alleges the existence of a writing, and by implication that it is in the possession of the accused.35

36

Some effort should be shown on the part of the state to procure the papers which are in the possession of the accused. This need not amount to a notice to produce at the trial.

Before secondary evidence of writings in the hands of the accused can be admitted, it must be shown by the prosecution or admitted by the accused that the papers are in his possession. Where the accused is possessed of relevant documentary evidence and does not voluntarily offer to produce it, secondary evidence is admitted. The same rule applies if he denies having the docu

37

33 State v. Ryder, 80 Vt. 422, 68 49 Pac. 221, 55 Pac. 382; State v. Atl. 652. Constantine, 48 Wash. 218, 93 Pac. 317. In criminal cases, parol evidence of the contents of a written instrument in the possession of the accused is admissible without notice to the defendant to produce such instrument. O'Brien v. United States, 27 App. D. C. 263.

State v. Hanscom, 28 Ore. 427, 43 Pac. 167; State v. Gurnee, 14 Kan. III, 121; McGinnis v. State, 24 Ind. 500; Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799; State v. Mulloy, 111 Mo. App. 679, 86 S. W. 569; Sullivan v. People, 108 Ill. App. 328; State v. Walker, 129 Mo. App. 371, 108 S. W. 615; State v. Madeira, 125 Mo. App. 508, 102 S. W. 1046; Young v. People, 221 Ill. 51, 77 N. E. 536; People v. Dolan, 186 N. Y. 4, 78 N. E. 569, 116 Am. St. 521; Moore v. State, 130 Ga. 322, 60 S. E. 544.

State v. McCauley, 17 Wash. 88,

36 State v. Lentz, 184 Mo. 223, 83 S. W. 970.

Kinard v. State, 1 Ga. App. 146, 58 S. E. 263; Mahan v. State, I Ga. App. 534, 58 S. E. 265; Commonwealth v. Sinclair, 195 Mass. 100, 80 N. E. 799.

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