POCKET EDITION ISSUED APRIL, 1912 A TREATISE ON THE CRIMINAL INCLUDING THE RULES REGULATING THE PROPER PRESENTATION OF EVIDENCE BY H. C. UNDERHILL, LL.B. OF THE NEW YORK BAR SECOND EDITION INDIANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS PREFACE The general conditions involved in a consideration of the law of criminal evidence are substantially the same as twelve years ago when the First Edition of this work was published. The author therefore trusts that he may be pardoned for quoting at length from the Preface of the First Edition. "The existing law of criminal evidence is almost wholly the product of the judiciary of England and America during the last hundred years. The disadvantages by which the accused was oppressed during the earlier periods of English criminal jurisprudence inaugurated a process of judicial legislation which evolved a series of extremely technical rules. These rules mitigated, in a large degree, the severity of the law, and frequently enabled an accused person to establish his innocence. The advance of education and of humane ideas which has, during the present century, effected so radical a reform in our criminal law to the advantage of the accused, has obviated the necessity for these rules. "The rules of modern criminal procedure have been conceived in a liberal spirit, and such safeguards are still thrown around the accused as enable him to defend himself with much greater advantage than he could possess if he were defending a civil action. But the state, as well as the prisoner, has rights in criminal proceedings, and it has been my aim to define these rights as far as possible. "I have endeavored to present: "First. A concise, but comprehensive and systematic treatment of those fundamental doctrines of the law of evidence. which are exclusively invoked in the trial of crimes. "Second. Those rules and principles of the law of evidence, which, while not confined in their application to criminal trials, are very frequently under consideration during such proceedings. "The relevancy of particular classes of facts and the mode of proving them are considered. "In the preparation of this work I have confined myself to a presentation of the rules and principles of the law as I have found them stated in the cases which have been decided by the courts of last resort. "The general rules of proof constituting the body of the law of evidence are so well settled as to obviate their discussion in detail in this work. The main difficulty in judicial proceedings is to determine when and to what extent general principles are applicable to the facts and circumstances of particular cases. The solution of this difficulty is to be found, first in ascertaining what the facts and circumstances are, and next in determining how the general principle claimed to be applicable has been applied in analogous cases.' In this Second Edition the author has endeavored to cite all important cases which have been decided since the publication of the First Edition and thus bring the work down to the date of going to press. In the preparation of the First Edition nearly nine thousand cases were analyzed, examined and cited, and several thousand have been added to this number in the present edition. The sections of the original text have been rewritten and enlarged and many new sections have been added as developments in the law have made such changes necessary. The total addition to the text is considerably over two hundred pages. In order to make the book more useful to the practitioner, citations are given not only to the official State Reports, but also to the L. R. A., the American Decisions, the American Reports, the American State Reports and to the Reporter System. 1367 Broadway, Brooklyn, N. Y. September 10, 1910. H. C. UNDERHILL. TABLE OF CONTENTS 1. Necessity for rules of evidence in judicial proceedings.. 2. Elements of probability and improbability as affecting the proof of 7. Circumstantial evidence to prove corpus delicti in trial for homicide. 12-14 8. Distinction between civil and criminal proceedings as regards rele- 16. Statutory changes in rules of evidence and modes of procedure............. 26–27 16a. Number of witnesses required and positive and negative evidence.. 27-30 17. The presumption of innocence-General rule............ 18. The presumption of innocence accompanies the accused until a ver- V |