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STATUTES IN FULL IN THE APPENDIX.

PAGE

14 4 15 Vict. c. 100 1013

22 & 23 Vict.c. 17 1019

30 & 31 Vict. c. 35 1020

A DIGEST

OF

THE LAW OF EVIDENCE
IN CRIMINAL CASES.

The general rules of evidence are the same in criminal and in civil proceedings. "There is no difference as to the rules of evidence," says Abbott, J., "between criminal and civil cases: what may be received in the one may be received in the other; and what is rejected in the one ought to be rejected in the other." R. v. Watson, 2 Stark. N. P. C. 155, 3 E. C. L.; R. v. Murphy, 8 C. & P. 306, 34 E. C. L. The enactments, however, of the Common Law Procedure Act, 1854, which materially altered the rules of evidence in certain cases, are, by sect. 103, confined to courts of civil judicature, though some of the provisions of that statute have been extended to criminal cases by subsequent legislation.

BEST EVIDENCE.

Ha

Best evidence 1

Chattels *

Written instruments jj

Handwriting ''

Negative evidence of consent «

Persons acting in a public capacity °

Admissions by party «

Secondary evidence—

lost documents °

Documents in hands of adverse party 9

Notice to produce—When dispensed with ..... 10

Form of H

To whom and when 11

Consequences of 12

Privileged communications 1"

Physical inconvenience 13

Public documents J*

Duty of judge 13

Degrees of 1*

Best evidence. It is the first and most signal rule of evidence that the best evidence of which the case is capable shall be given; for if the best evidence be not produced, it affords a presumption that it *would make against the party neglecting to produce it. Gilb. L

Ev. .3 Bull. N. P. 293, per Jervis, C. J., in Twyman t». Knowles, 13 C. B. 224, 76 E. C. L.; Best on Ev., Pt, 1, ch. 1, ss. 87 & 89.1

Best evidence—chattels. Primary evidence of the contents of written documents is required, as will be presently seen, in almost every case; but with regard to the state or quality of a chattel not produced in court, it would seem that secondary evidence may be given. On the trial of an indictment for endeavoring to obtain an advance from a pawnbroker upon a ring by false pretences, evidence was tendered to show that the prisoner had offered another ring to another pawnbroker upon a previous day; this ring was not produced, but the pawnbroker stated that it was a sham. The evidence was held admissible. Lord Coleridge, C. J., made the following remarks :—No doubt if there was not admissible evidence that this ring was false, it ought not to have been left to the jury; but though the non-production of the article may afford ground for observation more or less weighty, according to circumstances, it only goes to the weight, not to the admissibility of the evidence, and no question as to the weight of this evidence is now before us. Where the question is, as to the effect of a written instrument, the instrument itself is primary evidence of its contents, and until it is produced or the non-production is excused, no secondary evidence can be received. But there is no case whatever deciding that when the issue is as to the state of a chattel, e. g., the soundness of a horse or the equality of the bulk of the goods to the sample, the production of the chattel is primary evidence, and that no other evidence can be given till the chattel is produced in court for the inspection of the jury. The law of evidence is the same in criminal and civil suits."1 R. v. Francis, L. R. 2 C. C. 128; 43 L. J., M. C. 97. As to an inscription on a ring see R. v. Farr, post, p. 9.

Baylor v. Biggs, 1 Pet. 8. CRep. 596; Cutbush r. Gilbert, 4 8. & R. 551; Duckwel r. Weaver, 2 O. 13; Fitzgerald v. Adams, 9 Ga. 471. The rule which requires the production of the best evidence is applied to reject secondary evidence which leaves that of a higher nature behind in the power of the party; but not to reject one of several eye witnesses to the same facts, for the testimony of all is in the same degree. United States v. Gilbert, 2 Sumner, 19. "When there are several eye witnesses to the same facts, they may be proved by the testimony of one only. All need not be produced. If they are not produced,. the evidence may be less satisfactory or less conclusive, but still it is not incompetent." . . . "A witness who has seen a party write several times is a good witness to prove his handwriting. But a clerk in the counting room of the party, who has seen him write innumerable times, would be in many cases a more satisfactory witness to prove the handwriting. But nobody can doubt that each would be a competent witness." Per Story, Id. 81. So the admissions of the prisoner that he had stolen from the person of another are not to be excluded though the person from whom the property was stolen is not produced as a witness. Commonwealth r. Kennev, 12 Met. 23o. See also, Shoenberger v. Hachman, 37 Pa. St. 87; Kichardson v. Milburn, 17 Md. 67. The testimony of a bystander, who oveoheard a conversation, is not secondary evidence of such conversation. Peeples v. Smith, 8 Rich. 90. &

•Thus ranchmen accustomed to ride in quest of stock over a range, majr give their opinion of the number of stock of a particular brand upon that range, if it is the best attainable evidence, though they may have no particular interest or charge in that stock. Albright v. Corley, 40 Tex. 105.

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