tendency in regard to them has occasionally fallen from learned judges, which implies that they may be modified, according to the enormity of the crime, or the weightiness of the consequences which attach to conviction. Lord Finch, afterwards Lord Chancellor Nottingham, on the trial of Lord Cornwallis, said, "The fouler the crime is, the clearer and plainer ought the proof to be." 7 St. Tr. 149; and see Rex v. Crossley, 26 St. Tr. 218. "The more flagrant the crime is," said Mr. Baron Legge, "the more clearly and satisfactorily you will expect that it will be made out to you." Rex v. Blandy, 18 St. Tr. 1186. Mr. Justice Holroyd is represented to have said that "the greater the crime, the stronger is the proof required for conviction." Rex v. Hobson, 1 Lewin, C. C. 261. It may be proper here to premise that the rules of evidence in criminal cases are, in most respects, the same as in civil cases. The chief distinction which prevails will be found to originate in that caution which is always observed when life or liberty is in question, and in those benign presumptions with which the law meets every accusation involving moral turpitude. Barbour, Crim. Law, p. 351, and see N. Y. Laws, 1892, chap. 279, § 392. An early English case which is still cited with approval affirms that, "there is no distinction as regards the rules of evidence between criminal and civil cases. What may be received in the one case may be received in the other; and what is rejected in the one ought to be rejected in the other. A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence." Rex v. Watson, 2 Stark. 116; Lord Melville's Case, 29 How. St. Tr. 763. These positions are distinctly sustained by Chief Justice Russell, who holds, in his well known work on "Crimes," that there is no difference between civil and criminal cases, with reference to the modes of proof by direct or circumstantial evidence, except that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in the latter, which affect life and liberty. Mr. Bishop is found in entire accord with the preceding view. In section 1046 of his 'Criminal Procedure,' he very aptly observes: "The object of all evidence being the establishment of truth, the rules for its admission and effect must be, and are, the same in criminal causes as in civil. But this abstract doctrine, sometimes thus broadly laid down by the courts, is practically, in a degree, modified by the fact that in criminal causes, the end whereof is disgrace and punishment, the law has its presumption of innocence, differing from any known in civil jurisprudence; its consequent special rules for overcoming this presumption; and some others which seem peculiar, because applicable only in issues which never arise in the other department." § 7. What is Embraced in the Term "Crime."-While we distinctly repudiate any intention of blending our subject with that of criminal law, we should arrive at some accurate definitions. If we are to produce evidence of a crime or of criminal intent, it is obviously of considerable importance to first establish what crime is; or, more accurately, what the criminal law embraces. Sir William Blackstone says: "Crime is an act committed or omitted in violation of a public law either forbidding or commanding it." 4 Bl. Com. 5. It is a wrong of which the law takes cognizance as injurious to the public, and punishes in what is called a criminal proceeding prosecuted by the state in its own name or in the name of the people or the sovereign. Re Bergin, 31 Wis. 386. See 1 Bishop, Crim. Law, § 32. The New York Penal Code contains by far the most comprehensive definition. According to sections 3, et seq. "A crime is an act or omission forbidden by law, and punishable upon conviction by "1. Death; or "2. Imprisonment; or "3. Fine; or "4. Removal from office; or "5. Disqualification to hold any office of trust, honor, or profit under the state; or "6. Other penal discipline. "A crime is either (1) a felony; or (2) a misdemeanor." New York Penal Code, § 4. "A felony is a crime which is or may be punishable by either (1) death; or (2) imprisonment in a state prison." New York Penal Code, § 5. "The intent of the legislature to elevate an act to the importance of a crime cannot be imputed by loose influences and doubtfal implications, but must be made to appear with reasonable certainty. We may guess that the legislature intended to make all prohibited acts criminal offenses, but it is impossible to so affirm with any degree of certainty, and the fact that they did not so declare is indicative that they did not so intend." People v. Hislop, 77 N. Y. 335. The word "crime," in its more extended sense, comprehends every violation of public law; in a limited sense, it embraces offenses of a serious or atrocious character. Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223. 8. What is Criminal Law?-The definition of crime as here outlined must not be regarded as trenching upon that of criminal law, which has been defined as "that branch of jurisprudence which treats of crimes and offenses. From the very nature of the social compact on which all municipal law is founded, and in consequence of which every man, when he enters into society, gives up part of his natural liberty, result those laws which in certain cases authorize the infliction of penalties, the privation of liberty, and even the destruction of life, with a view to the future prevention of crime and to insuring the safety and well-being of the public. Salus populi suprema lex." Bouvier, Law Dict., title Criminal Law. "Crimes and offenses are classed under the head of public wrongs, and are distinguished from private wrongs in this: that private wrongs, or civil injuries are an infringement or deprivation of the civil rights which belong to individuals, considered merely as individuals; whilst public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social, aggregate capacity." 4 Bl. Com. 5. common usage, Crime and misdemeanor are synonymous terms; though, in "crimes" denotes such offenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of "misdemeanors." 4 Bl. Com. 5; 3 Bl. Com. 2. In short, the term "crime" embraces any and every indictable offense. See People v. New York Police Comrs. 39 Hun, 510; State v. Bishop, 7 Conn. 185; Alton v. Hope, 68 Ill. 168; Re Voorhees, 32 N. J. L. 144; Re Clark, 9 Wend. 212; O'Shea v. Twohig, 9 Tex. 340; Kentucky v. Dennison, 65 U. S. 24 How. 102, 16 L. ed. 727; Re Howard, 26 Vt. 208; State v. Peterson, 41 Vt. 511; 2 N. Y. Rev. Stat. 70, § 22. Yet it is not synonymous with "felony." Lehigh County v. Schock, 113 Pa. 379. High crimes and misdemeanors are such immoral and unlawful acts as are nearly allied and equal in guilt to felony, yet, owing to some technical circumstance, do not fall within the definition of felony. State v. Knapp, 6 Conn. 417; 1 Russell, Crimes, 61. The meaning of the phrase "high crimes and misdemeanors," underwent much discussion in the case of President Johnson, who was tried on articles of impeachment in 1868, but the result of the case was not such that any authoritative rule can be derived from it. The criminal law has, therefore, this object in view: to secure to the public the benefits of a social compact, by preventing or punishing every breach and violation of those laws which have been established for the government and tranquility of the whole. Some of the leading principles of the American system of the criminal law are: First. That every man is presumed to be innocent till the contrary is shown, and, if there is a reasonable doubt of his guilt, he is entitled to the benefit of the doubt. Second. That no person can be brought to trial except in the regular mode prescribed. Third. That the accused is entitled to trial by an impartial jury of his peers. Fourth. That the question of the guilt of the accused is to be determined without reference to his general character. Fifth. That the accused cannot be required to criminate himself. Sixth. That the accused cannot twice be put in jeopardy for the same offense. Seventh. That the accused cannot be punished for an act which was not an offense at the time of its commission. Haines, Justices of the Peace, part 2, p. 845. § 9. Principals and Accessories.-In the codes and statutes generally the parties to crimes are classified as principals and accessories, and all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offence, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed. All persons who, after full knowledge that a felony has been committed, conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories. CHAPTER II. JUDICIAL NOTICE. 10. Present Attitude of Judicial Authority. § 1. Present Attitude of Judicial Authority. The present attitude of judicial authority upon this important topic of the law of evidence is indicated in a sententious utterance of the New York Court of Appeals in an opinion by Chief Judge Hunt. It is an epitome of the legal sentiment of this country, and through its logical inferences and implications it can be made to embrace every rule pertinent to this discussion. After an interesting resumé of the authorities implicated with this question, he summarizes the conclusion in the following terms: "In fine, courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction, and where the memory of the judge is at fault, he may resort to such documents of reference as may be at hand and he may deem worthy of confidence." Swinnerton v. Columbian Ins. Co. 37 N. Y. 174, 93 Am. Dec. 560. A court will notice, judicially, a thing in the common knowledge and use of the people throughout the country, as the general customs and usages of merchants; the seals of notaries; things which must happen according to the laws of nature; the coincidence of the days of the week with those of the month; the meaning of the words in the vernacular language; the customary abbreviations of Christian names; the accession of the chief magistrate to office, his leaving it, and the appointment of members of his cabinet; the election and resignation of senators; the appointment of marshals and sheriffs, but not of their deputies; of the ports and waters where the tide ebbs and flows; of the boundaries of the states, and of judicial and collection districts. Brown v. Piper, 91 U. S. 42, 23 L. ed. 201. Statutes prescribing the boundaries of the territory, and its division into judicial districts, are public acts, which the courts are bound to know, and of which they will take judicial notice. |