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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
fruie evidence of the time when an instru-
ment is written. Rex v. Harborne. Sin.
clair u. Baggaley, 4 M. & W. 313. Hunt

9. Massey, 5 B. & Ad. 903. Potez v.
Glossop, 2 Exch. R. 191. Anderson v.
Weston, 6 B. N. C. 296. Morgan v.
Whitmore, 6 Exch. 716.

(9) Murray v. The Queen, 7 Q. B. 700. Reg. v. Apley, 1 Cox, C. C. 71.

318

BOOK THE SIXTH.

OF EVIDENCE.

CHAPTER THE FIRST.

OF WHAT NATURE EVIDENCE MUST BE.-OF PRESUMPTIVE EVI

DENCE, p. 320.—ON THE RULE THAT THE BEST POSSIBLE
EVIDENCE MUST BE PRODUCED, p. 327—AND OF HEARSAY EVI-
DENCE, p. 349.

What may

Rules of evi. dence the same in cri. minal as civil cases.

Bill of ex.
ceptions to
evidence.
Case reserved."

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.

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. (6)

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 (f) for the consideration of the court consti

(a) By Abbott, J., in Rex v. Watson, 2 Stark. R. 155.

(6) Lord Melville's case, 29 IIow. St. Tr. 763.

(c) Sir H. Vane's case, 1 Lev. 68. S. C. Kel. 15. 1 Sid. 85. Hawk. P. C. h. 2, c. 46, s. 210. Rex ». Lord laget and others, 1 Leon. 5. Rex v. Nutt, 1 Barnardist. 307. 2 Phil. Ev, 465. Rex . Inhabitants of Preston,

Cas. temp.

Hardw. 219,

(7) Reg. 1. Rice, 2 Cox, C. (. 118 ; R. 1. Jelly, 10 ('ox, C. (. 553 ; Reg. 1. Esdaile, i F. & F. 213. Lord ('ampbell, (. J. Reg. t. Alleyne, Dears. C. C. 505. Arch. (. P. 149. Reg. x. 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, 7,

tuted by that Act, and forbear to pass sentence, or respite the judgment until such question is decided. (y) 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 ; (1) 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. (0)

Where the defendant has been convicted on an indictment for New trial a misdemeanor, removed into the Court of Queen's Bench by a when indict. writ of certiorari, a new trial may be granted, at the instance of ment for misthe defendant, where the justice of the case requires it. (j) moved into Where several defendants are tried at the same time for a misde- Queen's Bench. meanor 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. (1.) 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 of 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. (o0) 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; (?) 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. Scaife, 17 Q. B. 238. 2 Den. C. C. 281 ; C. 16; 10 Cox, C. C. 338.

13 East, 416. (9) Sce the rules issued by the judges (k) Rex v. Mawbcy, 6 T. R. 619. Reg. as to such cases reserved in 1 Den. v. Gompertz, 9 Q. B. 824.

But in con('. C. ix.

spiracy, if several are convicted, the new (h) But see the more correct account trial must be as to all, though only one of Rex v. Tinkler, on which Rex v. Ball, shows himself to be entitled to it. infra, is reported to have been rested, in (1) Reg. v. Caudwell, 17 Q. B. 503, 21 1 Den. (. C. iv., and Lord Denman's L. J. M. C. 48. Howard v. Reg. 11 Law notes, ibid.

T. 629. (1) Rex v. Ball, R. & R. 132.

(m) Rer . Teal, 11 East, 307. Rex Oldroyil, ibiil. 88; but see Rex . 7. Askew, 3 M. & S. 9. Harling, R. & M. C. C. R. 39. See 36 & (n) Reg. 1. Parkinson, 2 Den. C. C. 37 Vict. c. 66, sched. R. 48.

459, 21 L. J. M. C. 48, notc (r). (j) Rex v. Mawbey, 6 T. R. 638. (0) Rex v. Spragg, 2 Burr. R. 930. See Tidd, 912, 913. Reg. v. Whitehouse, R. v. Hollingherry, 4 B. & C. 329, where Dears. ('. (. 1. It seems there can be the defenlant is in custody on criminal no new trial in cases of felony, Ex parte process. Edulgee Byramjee, 11 Jur. 855 ; R. v. (00) Note to Rex r'. Spracy. Bertrand, L. R. 1 P. C. 520, 10 Cox, ('. (p) Rex v. Cohen, 1 Stark. N. P. C. C. 618 ; Att.-Gen, of New South Wales 516. Rex 1. Sutton, 5 B. & Ad. 52. 8. Murphy, 11 Cox, C. (. 372 ; Reg. v.

Rex 7.

collateral issue, which may have been found in favour of the defendant on insufficient evidence. (9) 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; (9-) 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)

Sec. I.

Of Presumptive Evidence.

Presumptive or circumstantial evi. dence.

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 1. 2 M. C. C. R. 9, S. C. der was 'much discussed, Abbott, J., 7 C. & P.836.

said, 'A case might be put where a per(r) Reg. v. Chorley, 12 Q. B. 515. son should come up and find another Reg. 1. Russell, 3 E. & B. 942, 23 L. J. M. lying wounded with a dagger in his body, C. 173. Reg. v. Leigh, 10 A. & E. 398. and should draw it out, or should, in (s) Reg. v. Chorley, supra.

assisting the wounded man, wrench the (1) Reg. v. Russell, supra. Reg. v. knife out of the murderer's hand ; then, Johnson, 2 E. & E. 613, 29 L. J. M. C. if the murderer escaped, leaving him with 133.

the body, according to this law (Bracton] (u) Reg. v. Newman, 1 E. B. 268, he would be considered guilty of the 22 L. J. Q. B. 156.

murder, and be immediately hanged (v) Gilb. Ev. 142. As if a man be without trial.' And, in the history of found suddenly deal in a room, and the law, several presumptions which were another be found running out in haste at one time deemed conclusive by the with a bloody sword ; this is a violent courts, have, by the opinions of later presumption that he is the murderer: for judges, acting upon more enlarged printhe blood, the weapon, and the hasty ciples, become conclusive only in the flight, are all the necessary concomitants absence of proof to the contrary, or have to such horrid facts ; and the next proof been treated as wholly within the discre.. to the sight of the fact itself, is the proof tion of juries.' 1 Phil. Ev. 441. of those circumstances that do necessarily C. S. G. attend such fact. lbid. Unless the wound (29) Presumptions are often divided was in such a part of the body that the into three sorts, – violent, probable, and deceased could not have inflicted it him. light. Co. Lit. 6 b. 3 Blac. Com. 371. self, and it was shown that no other per- But such a classification seems altogether son had been in the room, it is conceived useless, and the distinction to amount to that such a presumption ought not to be nothing more than that in one case the considered as conclusive. In Ashford v. presumptive evidenco may be very strong, Thornton, 1 B. & Ald. 428, where the in another less so, and in another very subject of presumption in cases of mur- weak. See 1 Stark. Ev, 838, ct seq.

Where an indictment for murder was supported entirely by What cireumcircumstantial evidence, and there was no fact which, taken stantial evi.

dence is suffialone, 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. bis 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. (3)

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 presumption s. 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. (5)

(2) Hodge's case, 2 Lew. 227. See the against the prisoner was that three sheets very able observations on this subject, 1 were found upon his bed in his house Stark. Ev. 841, et seq., 859, et seq.

three calendar months after they had been (y) 1 Phil. Ev. 166, 7th edit. Perhaps stolen, and it was urged that this was too strong circumstantial evidence in cases of long a time after the larceny to call on crimes, committed for the most part in the prisoner to give any account how he secret, is the most satisfactory of any from had become possessed of them ; and Rex whence to draw the conclusion of guilt : V. Adams, ante, vol. 2, p. 275, was relieil for men may be seduced to perjury by upon; Wightman, J., held that the case many base motives, to which the secret must go to the jury, as it seemed to him nature of the offence may sometiines that it was impossible to lay down any afford a temptation ; but it can scarcely definite rule as to the precise time, which happen that many circumstances, espe. was too great to call upon the prisoner to cially if they be such over which the give an account of the possession, and accuser could have no control, forming that in this case there was some evidence, altogether the links of a transaction, although very slight, for the jury to conshould all unfortunately concur to fix the sider. The prisoner was acquitted. presumption of guilt on an individual, Reg. v. Hewlett, Salop Spring Ass. and yet such a conclusion be erroneous. 1813, MS. C. S. G. See vol. 2, p. 275, 1 East, P. C. c. 5, s. 9, p. 223.

et seq., and Reg. 2. Knight, L. & ('. (2) Where two prisoners were indicted 378, and Reg. v. Langmead, L. & C. for stealing two horses, and the case 427, vol. 2, p. 277. Mr. Starkie obagainst them consisted entirely of evi- serves that the recent possession of dence to show that both the horses were stolen goods is recognised by the law as found soon after the robbery, in the joint affording a presumption of guilt, and possession of the prisoners, and it ap- therefore, in one sense, is a presumption peared that the horses had been stolen on of law, but it is still in effect a mere different days, and at different plares, natural presumption ; for although the Littledalc, J., compelled the prosecutor circumstance may weigh greatly with to elect on which of the two stealings the jury, it is to operate solely by its he would proceed ; and his lordship ob- natural force, for a jury are not to convict served that the possession of stolen pro

unless they be actually convinced in their perty soon after a robbery is not in itself consciences of the truth of the fact. a felony, ough it raises a presumption Such a presumption is, therefore, essenthat the possessor is the thief; it refers to tially diflerent from the legal presumpthe original taking, with all its circum. tions in fact where a jury are to infer stances. Rex v. Smith, Ry. & Mood. that a bond has or has not been satisfied, N. P. C. 295. Where the only evidence as a few days or even hours, more or less,

Y

VOL. III.

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