Instances of adopted as a ground of judgment, than in the latter, which affect life and liberty. (c) One of the most usual presumptions in criminal prosecutions presumptions. Occurs in cases of larceny, where upon proof of the felony having been committed, and of the property stolen having been shortly afterwards found in the possession of the prisoner, it is presumed that he obtained it feloniously, unless he proves how he came by it.(d) So also on an indictment for the crime of arson, proof that property, which was taken out of the house at the time of the firing, was afterwards found secreted in the possession of the prisoner, raises a presumption that the prisoner was present, and concerned in the arson. (e) The buying goods at an under value is said to be presumptive evidence, that the buyer knew they were stolen. (f) Upon an indictment for perjury, in falsely taking the freeholder's oath, at the election of a knight of the shire, in the name of J. W., it appearing by competent evidence, that the freeholder's oath was administered to a person who polled on the second day of the election, by the name of J.W., and who swore to his freehold and place of abode; and that there was no such person, and that defendant voted on the second day, and was no freeholder, and some time afterwards boasted that he had done the trick, and was not paid enough for the job, and was afraid he should be pulled for his bad vote; and it not appearing that more than one false vote was given on the second day's poll, or that the defendant voted in his own name, or in any other than the name of J. W.; it was held, that there was sufficient evidence for the jury to presume that the defendant voted in the name of J. W., and consequently, to find him guilty of the charge as alleged in the indictment.(g) (c) 1 Phil. Ev. 155. 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 coutrol, 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. (d) Where two prisoners were indicted for stealing two horses, and the case against them consisted entirely of evidence to shew, 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 against the prisoner was, that goods which were stolen sixteen months before, were found in the prisoner's possession, Bailey, J., directed an acquittal, without calling on the prisoner for his defence. Rex 1 Carr & P. 459. ບ. (e) Rex v. Rickman, 2 East. 1035. (ƒ) Ante, p. 259. (g) Rex v. Price, 6 East. 323. The following is an example of a case of circumstantial evidence too weak for conviction. Two women were indicted for colouring a shilling and sixpence, and a man (Isaacs) as counselling them, &c. The evidence against him was, that he visited them A very common presumption is made by a jury in favour of at defendant from the goodness of his character; which subject, together with the presumption as to the intent of a prisoner, or his guilty knowledge, respecting the act which is the subject of the indictment, raised from the proof of prior acts unconnected with it, will be considered in the 4th Chapter of this Book, where the rule as to evidence being confined to the points in issue is discussed.(h) Besides the presumptions which a jury may make from circum- Presumptions stantial evidence, there are also presumptions of law. Thus, on every charge of murder, the fact of killing being first proved, the law presumes it to have been founded on malice till the contrary appear; and therefore all circumstances alleged by way of justification, excuse, or alleviation, must be proved by the prisoner, unless they arise out of the evidence produced against him. (i) Indeed it is a universal principle, as Lord Ellenborough observed, in the case of Rex v. Dixon, (k) that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing the act. In the case of Rex v. Sheppard, (7) uttering a forged stock receipt to a person who employed the prisoner to buy stock to that amount, and advanced the money, was held sufficient evidence of an intent to defraud that person; and it was further held, that the oath of the person to whom the receipt was uttered, that he believed the prisoner had no such intent, would not repel the presumption of an intention to defraud. So where the prisoner was indicted (under the repealed statute 43 Geo. 3. c. 58.) for setting fire to a mill, with intent to injure the occupiers thereof, it was held, that an injury to the mill being the necessary consequence of setting fire to it, the intent to injure might be inferred; for a once or twice a-week; that the rattling of copper money was heard whilst he was with them; that once he was counting something just after he came out; that on going to the room just after the apprehension, he resisted being stopped, and jumped over a wall to escape; and that there were then found upon him a bad three-shilling piece, five bad shillings, and five bad sixpences. Upon a case reserved, the Judges thought the evidence too slight to convict him. Rex v. Isaacs, MS. Bayley, J., Ante, Vol. I. 62. See also ante, Vol. I. p. 202. as to presuming consent of parents to a minor's marriage, on a prosecution for bigamy. (h) So a jury may presume that a man is dead at the expiration of seven years from the time when he was last known to be living. Per Lord Ellenborough, in Doe v. Jesson, 6 East. 84. See also Doe v. Deakin, 4 B. & A. 433. Doc v. Griffin, 15 East. 293. Watson v. King, 1 Stark. 121., as to (i) Fost. 255. 1 East. P. C. c. 5. s. (k) 3 M. & S. 15. (1) Russ. & Ry. C. C. R. 169. Ante, p. 354. Presumption of innocence. Omnia esse rite acta. Caution of to presump tions. man must be supposed to intend the necessary consequence of his own act.(m) So in prosecutions for forgery, a jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine, although, from the manner of executing the forgery, or from that person's ordinary caution, it would not be likely to impose on him, and although the object was general to defraud whoever might take the instrument, and the intention of defrauding in particular the person who would have to pay the instrument, if genuine, did not enter into the prisoner's contemplation. (2) In the case of Rex v. Fuller and Another, (o) the twelve Judges were of opinion, that the having in possession a large quantity of counterfeit coin unaccounted for, and without any circumstance to induce a belief that the defendants were the makers, was evidence of having procured it with intent to utter it.(p) In general, however, a presumption of law arises in favor of innocence until the contrary is proved; (9) and it arises not only in matters essentially criminal, but in every instance the rule is, that illegality is never to be presumed, but that the presumption always is, that a party complies with the law. (r) So it is a legal maxim, that "omnia presumuntur esse rite et solenniter acta donec probetur in contrarium;" and therefore it is a general presumption of law, that a person acting in a public capacity, as a peace officer, justice of the peace, constable, &c. is duly authorised to do so;(s) and that even in a case of murder.(t) It may be proper here to mention the two well known cautions Lord Hale as of Lord Hale respecting presumptive evidence, viz. 1. That a person should never be convicted for stealing the goods cujusdam ignoti, because he cannot give an account of how he came by them, unless there be due proof made that a felony was committed of these goods. 2. That a person should never be convicted of (m) Rex v. Farrington, Russ. & (0) Russ. & Ry. C. C. R. 308. Ante, (P) See further as to the primary intention, including the collateral one imputed in the indictment, and the necessary proof of the particular intent laid. Ante, Vol. I. 590, 598, et seq. 2 Stark. Ev. 743. (q) Rex v. Twyning, 2 B. & A. 386., in which case, a woman having married again within the space of twelve months after her husband had left the country, the presumption that she was innocent of bigamy was held to preponderate over the usual presumption of the continuance of life. (r) Sissons v. Dixon, 5 B. & C. 758. See also Bennet v. Clough, 1 B. & A. 461., which was an action against a carrier for losing a parcel, (1) By Buller, J., in Berryman v. Wise, 4 T. R. 366. murder or manslaughter, unless the fact were proved to be done, or at least the body found dead. (u) SECTION II. The best possible Evidence must be produced. It is a general rule that you must give the best evidence that the nature of the thing is capable of: (a) the true meaning of which rule is, not that in every matter there must be all that force and attestation that by any possibility might have been gathered to prove it, and that nothing under the highest assurance possible shall be given in evidence; but that no such evidence shall be brought that ex naturâ rei supposes still greater evidence behind in the party's possession or power; for such evidence is altogether insufficient, and proves nothing, as it carries a presumption with it contrary to the intention for which it is produced. For if the other greater evidence did not make against the party, why did he not produce it to the Court? As if a man offer a copy of a deed or will where he ought to produce the original, this carries a presumption with it, that there is something more in the deed or will that makes against the party, or else he would have produced it; and, therefore, the proof of a copy in this case is not evidence:(b) but if he prove the original deed or will in the hands of the adverse party, or to be destroyed without his default, a copy will be admitted, because then such copy is the best evidence: the presumption of greater evidence behind in the party's possession being overturned by positive proof. (c) Hence it appears that evidence of an inferior quality, or as it is called, secondary evidence, cannot be received until it be shewn that no evidence of a superior quality, or as it is termed primary evidence, can be produced. It becomes necessary, therefore, to consider, 1st. What is primary evidence. 2dly. What is a sufficient ground for the admission of secondary evidence. 3dly. What is good secondary evidence. 1. What is primary evidence. It has already appeared that it What is priis the quality and not the quantity which the rule requiring the mary evidence. best possible evidence regards. Thus if a will of lands is to be Contents of proved, the primary proof of the contents is the will itself; and will. neither an exemplification under the great seal, nor the probate in the spiritual Court will be admissible : (d) but one of the three sub- Execution of scribing witnesses will be sufficient, without calling the others, to will proved by prove the execution, if he can speak to all the requisites of attes- witnesses. tation, and the jury believe him. (e) So if there are several subscribing witnesses to a deed, and all are proved to be dead, proof one of three writing. of the signature of one will be sufficient; for the proof is as far as it goes complete, and not inferior in its kind to any that can be Primary evi- produced. (f) So for the purposes of proving handwriting, where dence of hand- it happens to be a case when there would be no objection to the competency of the writer himself, it is not necessary to call him : it is sufficient to prove it by the evidence of some one acquainted with the general character of his writing, who on inspection can say he believes it to be the handwriting of the party. Thus, where the signature of a magistrate to a deposition is to be proved, it is usually done by a witness acquainted with the general character of his writing, without calling the magistrate himself. The evidence of such a witness is not in its nature inferior or secondary; and though it may generally be true, that the writer is best acquainted with his own hand-writing, and therefore his evidence will in general be thought the most satisfactory, yet his knowledge is acquired precisely by the same means as the knowledge of other persons, who Of disproving have been in the habit of seeing him write.(g) And it seems, that handwriting. on the same principle, the evidence of such persons is as much primary evidence to disprove his hand-writing as to prove it.(h) In Rex v. Hunt and others, on an indictment for unlawfully assembling, it was held, that a paper which had been delivered by Hunt to the witness at a meeting, as a copy of certain resolutions about stances of pri- to be proposed and read, and which corresponded with what the witness heard read from a written paper, was admissible as evidence of those resolutions, without giving the defendant notice to produce the original. (¿) And in the same case it was decided that parol evidence of inscriptions or devices on banners and flags displayed at the meeting was admissible without producing the originals, though it appeared that they had been seised by the police officers, and therefore might have been produced on the part of the prosecution.(j) Other in mary evi dence. Written instruments. The contents of a written instrument can only be proved by the instrument itself, unless it be lost, or in the hands of the other party not even the declarations of the party against whom it is to be proved are admissible for this purpose, unless the non-production of the instrument be accounted for.(k) And generally speaking, parol evidence is secondary in its nature to written evidence and where a written instrument is required by law, or made by private compact to express the intention of the parties, it possesses a force and authority superior to any other evidence. (/) Thus when an agreement has been reduced into writing, the writing itself must be produced ; (m) and, if not properly stamped, the |