conviction is right. It seems to me that this case is not distinguishable from Rex v. Turner. It is a general rule that the proof of the affirmative lies upon the party who is to sustain it. The prosecutor, in general, is not called upon to prove negatively all that is stated in the information as matter of disqualification. In Rex v. Turner all the learned judges concur in that principle. I concur in all the observations upon which the judgment of the Court in that case was founded: and I think every one of them is applicable in principle to this. The general principle, and the justice of the case, are here against the defendant. It is urged, that if we decide against the defendant, we shall open the door to a great deal of inconvenience: that by no means follows; this man might have produced his license without any possible inconvenience, which would at once have relieved him from all liability to penalties. Probably the whole inquiry before the magistrates was as to the fact of selling the ale, and that nothing was said about the license; but, however, I think, by the general rule, the informer was not bound to sustain in evidence the negative averment that the defendant had not a license. I do not mean to say that there may not be cases which may be fit to be considered as exceptions to that general rule; there is no general rule to which there may not be exceptions; all I mean to say is, that this is not one of those exceptions. The party thus called upon to answer for an offence against the excise laws, sustains not the slightest inconvenience from the general rule, for he can immediately produce his license; whereas, if the case is taken the other way, the informer is put to considerable inconvenience. Discussions may arise before the magistrates, whether the evidence produced is proper to sustain the negative; whether a book should be produced, or an examined copy, and many other questions of that sort; whereas none can arise when the defendant himself produces his license. This, therefore, not being one of the excepted cases, but a case falling directly within the general rule, I am of opinion that judgment must be given for the Crown.' () In Willis's case it is said to have been agreed that, although an indictment states that the prisoner then or at any time before, not being a contractor with or authorized by the principal officers or commissioners of our said Lord the King of the navy, ordnance, &c., for the use of our said Lord the King, to make any stores of war, &c.,' yet that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must show, if the truth be so, that he is within the exception in the statute. (k) Upon the same principle, the Apothecaries' Company v. Bent- Apothecaries' ley (l) was decided. That was an action for a penalty on the Company v. 55 Geo. 3, c. 194, for practising as an apothecary without having obtained the certificate required by that Act. All the counts in the declaration contained the allegation that the defendant did act and practise as an apothecary, &c., without having obtained such certificate as by the said Act is directed. No evidence was offered (j) So in Rex v. Smith, 3 Burr. 1475, which was a conviction for trading as a hawker and pedlar without a license, it was held that the onus of proving the license lay on the defendant. (k) 1 Hawk. P. C. c. 89, s. 17. Vol. 2, P. 507. (2) Ry. & Mood. N. P. C. 159. S. C. 1 C. & P. 538. Bentley. by the plaintiffs to show that the defendant had not obtained his certificate. The plaintiffs having closed their case, the counsel for the defendant submitted that there must be a nonsuit. But Abbott, C. J., said, 'I am of opinion that the affirmative must be proved by the defendant. I think that it being a negative, the plaintiffs are not bound to prove it, but that it rests with the defendant to establish his having a certificate. (m) Evidence to be confined to point in issue. Evidence must apply to the single transaction charged. SEC. II. Evidence confined to the point in Issue. No evidence can be admitted which does not tend to prove or disprove the issue joined. In criminal proceedings the necessity is stronger, if possible, than in civil, of strictly enforcing the rule, that the evidence is to be confined to the point in issue; for where a prisoner is charged with an offence, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer. It is, therefore, a general rule, that the facts proved must be strictly relevant to the particular charge, and have no reference to any conduct of the prisoner unconnected with such charge. Therefore, it is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence as that for which he stands indicted. Thus, in a prosecution for an infamous crime, an admission by the prisoner that he had committed such an offence at another time, and with another person, and that he has a tendency to such practices, ought not to be received in evidence. (n) Where upon an indictment for a burglary and stealing goods, the prosecutor failed to prove any nocturnal breaking, or any larceny subsequent to the time when the prisoners entered the house, which must have been after three o'clock in the afternoon of the day on which the offence was charged to have been committed, it was proposed to abandon the charge of burglary, and to give evidence of a larceny by the prisoners of some of the articles mentioned in the indictment, though committed before three o'clock on the day on which they were charged to have entered the house; but the Court refused to receive the evidence, on the ground that it was a distinct transaction. (o) The prisoners were, therefore, acActs of prisoner charged quitted on this charge, but were afterwards indicted again for the other offence, and convicted. In treason, no overt act, amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly in indictment alone can be proved. (m) See R. v. Harris, 10 Cox C. C. 541. (n) Rex v. Cole, Mich. T. 1810, by all the judges, MS. 1 Phill. Ev. 477. In an action against the acceptor of a bill of exchange, where the defence was, that the acceptance was forged, evidence that the party who negotiated the bill had been guilty of other forgeries was held inadmissible. Viney v. Barss, 1 Esp. 292. See also Balcettiv. Serani, Peake, Ñ. P. C. 142. Graft v. Bertie, Peake's Ev. 104. (0) Rex v. Vandercomb, 2 Leach, 708. Vol. 2, p. 49. laid in the indictment; (p) but still, if it conduce to the proof of any of the overt acts which are laid, it may be admitted as evidence of such overt acts. (q) With this view the declarations of the prisoner and seditious language used by him are clearly admissible in evidence, as explaining his conduct and showing the nature and object of the conspiracy. (r) So, though it is not allowable in general to inquire into any other stealing of goods, besides that specified in the indictment, yet, for the purpose of ascertaining the identity of the person, it is often important to show that other goods, which had been upon an adjoining part of the premises, were stolen in the same night, and afterwards found in the prisoner's possession. This is strong evidence of the prisoner having been near the prosecutor's house on the night of the robbery; and in that point of view it is material. (s) Thus also, on an indictment for the crime of arson, it may be shown that property, which had been taken out of the house at the time of the firing, was afterwards found secreted in the possession of the prisoner. (t) Where larceny of goods not ment may be proved. laid in indict Acts of other persons engaged in the may be same design proved, whether they are indicted Where several are proved to have been engaged in the same design, the acts and declarations of one in furtherance of that design may be received in evidence against another, though not present; (u) and it seems to make no difference as to the admissibility of the act or declaration of a conspirator against a defendant, whether the former be indicted or not, or tried or not, with the latter; for the making one a co-defendant does not make his acts or not. or declarations evidence against another any more than they were before; the principle upon which they are admissible at all is, that the act or declaration of one is that of both united in one common design, a principle which is wholly unaffected by the consideration of their being jointly indicted. (v) Neither does it appear to be material what the nature of the indictment is, provided the offence involve a conspiracy. Thus, upon an indictment for murder, if it appeared that others, together with the prisoner, conspired to perpetrate the crime, the act of one done in pursuance of that intention would be evidence against the rest. (w) So where in a case of forgery several persons had been shown to be connected together in respect of the charge contained in the indictment, it was held that what was said by one of them to a witness, when they were met together, on the subject of the present forgery, was evidence against the others, although the person who said it was not upon his trial. (x) Where several different felonies are alleged in the same indict- Prosecutor ment, or the evidence appears to refer to more than one distinct confined to unconnected felony, it is usual for the judge, in his discretion, to proof of one call upon the counsel for the prosecution to select one felony, and to confine the evidence to that particular charge. (y) Thus, on an also for examples of this rule, Rex v. (v) 2 Stark. Ev. 329. Ante, p. 149. (x) Rex v. Stansfield, 1 Lew. 118, (y) Young v. The King, 3 T. R. 106, by Buller, J. Rex v. Jones, 3 Campb. 132, B B felony. Proving one felony by showing prisoner guilty of another felony. Where the felonies are connected. indictment against a receiver for receiving several articles, if it appear that they were received at different times, the prosecutor may be put to his election, (2) though on an indictment for stealing several articles it is no ground for confining the prosecutor's proof to some one of the articles, that they might have been, and probably were, stolen at different times, if they might have been stolen all at once. (a) Generally speaking, it is not competent to a prosecutor to prove a man guilty of one felony by proving him guilty of another unconnected felony; but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to show the character of the other. (b) On an indictment for stealing six shillings, it was proved that the prisoner was a shopman in the employ of the prosecutrix, and, his honesty being suspected, on a particular day the son of the prosecutrix put seven shillings, one half-crown, and one sixpence, marked in a particular manner, into a till in the shop, in which there was no other silver at that time, and the prisoner was watched by the prosecutrix's son, who from time to time went in and out of the shop, occasionally looking into and examining the till, while customers came into the shop and purchased goods. Upon the first examination of the till it contained 11s. 6d. ; after that, the son of the prosecutrix received one shilling from a customer and put it into the till; afterwards another person paid one shilling to the prisoner, who was observed to go with it to the till, to put his hand in, and withdraw it clenched. He then left the counter, and was seen to raise his hand clenched to his waistcoat pocket. The till was examined by the witness, and 11s. 6d. were found in it instead of 13s. 6d. which ought to have been there. The prosecutrix was proceeding to prove other acts of the prisoner, in going to the till and taking money, when Wilde, Serjt., objected that evidence of one felony had already been given, and that the prosecutrix ought not to be allowed to prove several felonies. The learned judge overruled the objection, and the son of the prosecutrix proved that, upon each of several inspections of the till after the prisoner had opened it, he found a smaller sum than ought to have been there. The prisoner having been found guilty, application was made to the Court of King's Bench for a rule for staying the judgment, on the ground that the prosecutor ought to have been confined in proof to one felony; but the Court was of opinion that it was in the discretion of the judge to confine the prosecutor to the proof of one felony, or to allow him to give evidence of other acts, which were all part of one entire transaction. (c) So where on an indictment for stealing pork, a bowl, some knives, and a loaf of bread, it appeared that the prisoner entered a shop and ran away with the pork, and returned in about two minutes, replaced the pork in a bowl, which contained the knives, Rex v. Kingston, 8 East, 41. But this () Rex v. Dunn, R. & M. C. C. R., (a) Ibid. When the prosecutor will not be required to elect when goods have been taken at different times, see vol 2, p. 268, 280. (b) Per Bayley, J. Rex v. Ellis, 6 B. & C. 145. (c) Rex v. Ellis, supra. The indictment had been removed into that Court by certiorari from the city Court of Exeter. and took away the whole together; in about half-an-hour after, he came back to the shop, and took away the loaf of bread. Littledale, J., said, 'This taking away the loaf cannot be given in evidence upon this indictment. I think that the prisoner's taking the pork and returning in two minutes, and then running off with the bowl, must be taken to be one continuing transaction; but I think that half-an-hour is too long a period to admit of that construction. The taking of the loaf therefore is a distinct offence.' (d) So where the prisoner was indicted for stealing a halfpenny, and the prosecutor had marked a quantity of pence and halfpence and locked them up in a bureau, and had missed one halfpenny on the 9th of July, and others on the 13th; Erle, J., held that the prosecutor might prove that after the 13th the prisoner was searched, and all the marked pence found upon her, and that he could not say which of them was stolen on the 9th, but it must be one of them; for it mattered not that the evidence might apply to another charge if it were revelant and necessary for the support of this charge. (e) The prisoner was indicted for stealing one shilling. The pri- An admission soner was taken into custody, and the shilling, which had been of another distinct felony marked, found in his possession, and the constable asked him if he had any more of the prosecutor's money about him, on which he produced some half-crowns, and said something about them; and it was held that the statement so made was not admissible, as it related to another felony. (f) glaries in the same night. In the case of Rex v. Wylie, (g) Lord Ellenborough said he re- Several burmembered a case where a man committed three burglaries in one night; he took a shirt at one place and left it at another; and they were all so connected, that the Court went through the history of the three different burglaries. So where three burglaries were committed in the town of Uttoxeter, one at Keeling's and another at Bladon's, between twelve and three o'clock of the same night, and at Bladon's a crowbar was found, which fitted some marks on a chest broken open at Keeling's, and which was proved to have been in the possession of the prisoners previously to the night in question; Wightman, J., on the authority of the preceding case, allowed evidence to be given of the finding of the crowbar at Bladon's, and also of the finding goods stolen the same night from Bladon's in the possession of the prisoners, as such evidence tended to show that the prisoners had been at Bladon's, and that they might have left the crowbar there. (h) So where on an indictment for breaking into a counting house of the Midland Railway Station at Nether Whitacre, it was proposed to prove that the prisoners on the same night had successively broken into the stations of Wilnecote, Kingsbury, Nether Whitacre, and Forgehills, Nether Whitacre being at some distance from the other stations, and that some of the property taken from Nether Whitacre had been found on two of the prisoners, and property taken from another station (d) Rex v. Birdseye, 4 C. & P. 386. (e) Rex v. May, 1 Cox, C. C. 236. Erle, J., told the jury to convict, if they were satisfied that all the halfpence were identified, but to acquit if any was not identified. (f) Reg. v. Butler, 2 C. & K. 221, Platt, B. (g) 1 New Rep. 91, S. C. 2 Leach, 983. (1) Reg. r. Stonyer and others, Stafford Sum. Ass. 1843. MSS. C. S. G. |