An indictment for bigamy under the 35 Geo. 3, c. 57, s. 1 (now Form of inrepealed), alleging that the prisoner married A., and afterwards dictment. feloniously married C., 'the said A., his former wife, being then alive,' sufficiently charged the offence, without also alleging that the prisoner was still married to A., when he married C.; for a divorce from A. was not to be presumed. (g) written at any time, and therefore proof was given that it was in reply to the daughter's letter; but this seems to have been unnecessary, for the date is prima facie evidence of the time when an instrument is written. Rex v. Harborne. Sinclair v. Baggaley, 4 M. & W. 313. Hunt v. Massey, 5 B. & Ad. 903. Potez v. (g) Murray v. The Queen, 7 Q. B. 700. 318 BOOK THE SIXTH. OF EVIDENCE. Rules of evidence the same in cri minal as civil cases. Bill of exceptions to evidence. Case reserved." CHAPTER THE FIRST. OF WHAT NATURE EVIDENCE MUST BE. OF PRESUMPTIVE EVI DENCE, p. 320.-ON THE RULE THAT THE BEST POSSIBLE BEFORE entering upon the subject of Presumptive Evidence, to which the following section will be appropriated, it may be proper to pay attention to a few points applicable to the law of evidence in criminal prosecutions generally. There is in general no difference as to 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) A fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence. It has been doubted whether a bill of exceptions lies in any criminal case. (c) It seems now to be settled that it does not. (d) If the judge who presided at the trial was of opinion that there was a doubt whether he might not have admitted some evidence or witness improperly, or whether the facts proved constituted the crime charged, he might formerly, in his discretion, forbear to pass sentence, or respite the judgment, until the opinions of the fifteen judges were obtained upon a case reserved. And now by the 11 & 12 Vict. c. 78 (e), when any person is convicted of any treason, felony, or misdemeanor, before any court of oyer and terminer or gaol delivery or court of quarter sessions, the judge or commissioner or justices of the peace before whom the case is tried, may, in his or their discretion, reserve any question of law, which has arisen on the trial (ƒ) for the consideration of the court consti (a) By Abbott, J., in Rex v. Watson, 2 Stark. R. 155. (b) Lord Melville's case, 29 Ilow. St. Tr. 763. (c) Sir H. Vane's case, 1 Lev. 68. S. C. Kel. 15. 1 Sid. 85. Hawk. P. C. b. 2, c. 46, s. 210. Rex v. Lord Paget and others, 1 Leon. 5. Rex v. Nutt, 1 Barnardist. 307. 2 Phil. Ev. 465. Rex v. Inhabitants of Preston, Cas. temp. Hardw. 249. (d) Reg. v. Rice, 2 Cox, C. C. 118; R. v. Jelly, 10 Cox, C. C. 553; Reg. v. Esdaile, 1 F. & F. 213. Lord Campbell, C. J. Reg. v. Alleyne, Dears. C. C. 505. Arch. C. P. 149. Reg. v. Brown, Arch. C. P. 149. (e) See the Appendix of Statutes, viii. (f) If prisoner pleads guilty, no ques tion can be reserved under this Act, R. v. tuted by that Act, and forbear to pass sentence, or respite the judgment until such question is decided. (g) If the case were clearly made out by proper evidence in such a way as to leave no doubt of the guilt of the prisoner in the mind of any reasonable man, such a conviction ought not, it seems, to be set aside because some other evidence was given which ought not to have been received; (h) but if the case without such improper evidence were not so clearly made out, and the improper evidence might be supposed to have had an effect on the minds of the jury, it would be otherwise. (i) of New trial when indict ment for mismoved into demeanor re Queen's Bench. Where the defendant has been convicted on an indictment for a misdemeanor, removed into the Court of Queen's Bench by a writ of certiorari, a new trial may be granted, at the instance of the defendant, where the justice of the case requires it. () Where several defendants are tried at the same time for a misdemeanor thus removed, and some are acquitted and others convicted, the Court of Queen's Bench may grant a new trial as to those convicted, if they think the conviction improper. (k) And it is a rule that where there is only one defendant, he must be present in court when a motion is made for a new trial. (1) And where several defendants are convicted upon an indictment for a misdemeanor thus removed into the Court Queen's Bench, all must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. (m)* But where a defendant has been found guilty of an offence, e. g. a nuisance, for which he is not liable to personal punishment, but only to a fine, it is not necessary that he should be present in court when a motion is made for a new trial. (n) Whenever it is necessary for a defendant to be present, if he be already in custody, he must obtain a habeas corpus to bring him into court. (o) The presence of the defendant is not necessary on the argument of a special verdict, as the presumption of innocence may be supposed to continue. (00) As a general rule, no new trial can be had where After an the defendant is acquitted, although the acquittal was founded on acquittal. the misdirection of the judge; (p) or where a verdict is found for a defendant on a plea of autrefois acquit, although that raises a Clark, L. R. 1 C. C. R. 54, 36 L. J. M. (7) See the rules issued by the judges as to such cases reserved in 1 Den. C. C. ix. (h) But see the more correct account of Rex v. Tinkler, on which Rex v. Ball, infra, is reported to have been rested, in 1 Den. C. C. iv., and Lord Denman's notes, ibid. (i) Rex v. Ball, R. & R. 132. Oldroyd, ibid. 88; but see Harling, R. & M. C. C. R. 39. 37 Viet. c. 66, sched. R. 48. Rex ". (j) Rex v. Mawbey, 6 T. R. 638. Tidd, 942, 943. Reg. v. Whitehouse, Dears. C. C. 1. It seems there can be no new trial in cases of felony, Ex parte Edulgee Byramjee, 11 Jur. 855; R. v. Bertrand, L. R. 1 P. C. 520, 10 Cox, C. C. 618; Att.-Gen. of New South Wales . Murphy, 11 Cox, C. C. 372; Reg. v. Scaife, 17 Q. B. 238. 2 Den. C. C. 281; (k) Rex v. Mawbey, 6 T. R. 619. Reg. (1) Reg. v. Caudwell, 17 Q. B. 503, 21 L. J. M. C. 48. Howard v. Reg. 11 Law T. 629. (i) Rex v. Teal, 11 East, 307. Rex 2. Askew, 3 M. & S. 9. (n) Reg. v. Parkinson, 2 Den. C. C. 459, 21 L. J. M. C. 48, note (r). (0) Rex v. Spragg, 2 Burr. R. 930. See R. v. Hollingberry, 4 B. & C. 329, where the defendant is in custody on criminal process. (00) Note to Rex v. Spragg. (p) Rex v. Cohen, 1 Stark. N. P. C. collateral issue, which may have been found in favour of the defendant on insufficient evidence. (q) But where the proceeding is in substance merely to try a civil right, a new trial may be granted where the indictment has been removed as above after an acquittal; () and therefore a new trial may be granted where the question is as to the liability to repair a highway, (s) but not where the charge is a wrongful obstruction of a highway. (t) Before the Judicature Acts, when it was intended to move the Court of Queen's Bench for a new trial in a criminal case, either the motion should be made within the first four days of term, or during those days an intimation must have been given to the Court that counsel was prepared to make that motion. (u) Presumptive or circumstantial evidence. SEC. I. Of Presumptive Evidence. When a fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances that necessarily or usually attend such facts, and are called presumptions, not proofs, for they stand instead of the proofs till the contrary be proved. (v) In criminal cases, from the secret manner in which guilty actions are generally perpetrated, it is seldom possible to give direct evidence of the commission of the offence charged, i. e. to produce a witness who saw the act committed; and, therefore, recourse must necessarily be had to presumptive (or, as it is often called, circumstantial) evidence, i. e. the direct evidence of circumstances, from which the commission of the act may be presumed by the jury. (w) (9) Rex v. Lea, 2 M. C. C. R. 9, S. C. 7 C. & P.836. (r) Reg. v. Chorley, 12 Q. B. 515. Reg. v. Russell, 3 E. & B. 942, 23 L. J. M. C. 173. Reg. v. Leigh, 10 A. & E. 398. (s) Reg. v. Chorley, supra. (t) Reg. v. Russell, supra. Reg. v. Johnson, 2 E. & E. 613, 29 L. J. M. C. 133. (u) Reg. v. Newman, 1 E. & B. 268, 22 L. J. Q. B. 156. (v) Gilb. Ev. 142. As if a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword; this is a violent presumption that he is the murderer : for the blood, the weapon, and the hasty flight, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself, is the proof of those circumstances that do necessarily attend such fact. lbid. Unless the wound was in such a part of the body that the deceased could not have inflicted it himself, and it was shown that no other person had been in the room, it is conceived that such a presumption ought not to be considered as conclusive. In Ashford v. Thornton, 1 B. & Ald. 428, where the subject of presumption in cases of mur der was much discussed, Abbott, J., said, 'A case might be put where a person should come up and find another lying wounded with a dagger in his body, and should draw it out, or should, in assisting the wounded man, wrench the knife out of the murderer's hand; then, if the murderer escaped, leaving him with the body, according to this law [Bracton] he would be considered guilty of the murder, and be immediately hanged without trial.' And, in the history of the law, several presumptions which were at one time deemed conclusive by the courts, have, by the opinions of later judges, acting upon more enlarged principles, become conclusive only in the absence of proof to the contrary, or have been treated as wholly within the discre-. tion of juries.' 1 Phil. Ev. 441. C. S. G. (w) Presumptions are often divided into three sorts,-violent, probable, and light. Co. Lit. 6 b. 3 Blac. Com. 371. But such a classification seems altogether useless, and the distinction to amount to nothing more than that in one case the presumptive evidence may be very strong, in another less so, and in another very weak. See 1 Stark. Ev. 838, et seq. dence is suffi Where an indictment for murder was supported entirely by What circumcircumstantial evidence, and there was no fact which, taken stantial evialone, amounted to a presumption of guilt; Alderson, B., told the cient to warjury that before they could find the prisoner guilty, they must be rant a convicsatisfied not only that those circumstances were consistent with tion. his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person;' and he then pointed out to them the proneness of the human mind to look for, and often slightly to distort the facts, in order to establish such a proposition, forgetting that a single circumstance, which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. (x) 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. (y) One of the most usual presumptions in criminal prosecutions Instances of occurs in cases of larceny, where upon proof of the felony having presumptions. been committed, and of the property stolen having been shortly afterwards found in the possession of the prisoner, it is presumed that he actually stole it, unless he prove how he came by it. () (2) Hodge's case, 2 Lew. 227. See the very able observations on this subject, 1 Stark. Ev. 841, et seq., 859, et seq. (y) 1 Phil. Ev. 166, 7th edit. Perhaps strong circumstantial evidence in cases of crimes, committed for the most part in secret, is the most satisfactory of any from whence to draw the conclusion of guilt: for men may be seduced to perjury by many base motives, to which the secret nature of the offence may sometimes afford a temptation; but it can scarcely happen that many circumstances, especially if they be such over which the accuser could have no control, forming altogether the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erroneous. 1 East, P. C. c. 5, s. 9, p. 223. () Where two prisoners were indicted for stealing two horses, and the case against them consisted entirely of evidence to show that both the horses were found soon after the robbery, in the joint possession of the prisoners, and it appeared that the horses had been stolen on different days, and at different places, Littledale, J., compelled the prosecutor to elect on which of the two stealings he would proceed; and his lordship observed that the possession of stolen property soon after a robbery is not in itself a felony, though it raises a presumption that the possessor is the thief; it refers to the original taking, with all its circumstances. Rex v. Smith, Ry. & Mood. N. P. C. 295. Where the only evidence VOL. III. against the prisoner was that three sheets Y |