1824. Proof is the effect of evidence, the establishment of a fact by evidence. 1825. The law of evidence, which is the subject of this part of the code, is a collection of general rules established by law: 1. For declaring what is to be taken as true without proof; 2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and, 3. For the production of legal evidence; 4. For the exclusion of whatever is not legal; 5. For determining, in certain cases, the value and effect of evidence. 1. Evidence in Criminal Actions.-Penal Code, secs. 1102, n. 11, ante. 1826. The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. 1827. There are four kinds of evidence: 1. The knowledge of the court; 2. The testimony of witnesses; 3. Writings; 4. Other material objects presented to the senses. 1828. There are several degrees of evidence: 1. Primary and secondary; 2. Direct and indirect; 3. Prima facie, partial, satisfactory, indispensable, and conclusive. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1829. Primary evidence is that kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1830. Secondary evidence is that which is inferior to primary. Thus, a copy of an instrument, or oral evidence of its contents, is secondary evidence of the instrument and contents. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1831. Direct evidence is that which proves the fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example: if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct. 1832. Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example: a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred. 1. Circumstantial Evidence.-Penal Code, sec. 1102, n. 6, ante. 1833. Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example: a certificate of a recording officer is prima facie evidence of a record, but it may afterward be rejected upon proof that there is no such record. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1834. Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be received, subject to be rejected as incompetent, unless connected with the fact in dispute by proof of other facts. For example: on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterwards connected with the fact in dispute. 1835. That evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. Such evidence alone will justify a verdict. Evidence less than this is denominated slight evidence. 1836. Indispensable evidence is that without which a particular fact can not be proved. 1837. Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example, the record of a court of competent jurisdiction can not be contradicted by the parties to it. 1838. Cumulative evidence is additional evidence of the same character to the same point. 1839. Corroborative evidence is additional evidence of a different character, to the same point. TITLE I. OF THE GENERAL PRINCIPLES OF EVIDENCE. SECTION 1844. One witness sufficient to prove a fact. 1845. Testimony confined to personal knowledge. 1846. Testimony to be in presence of persons affected. 1849. Declarations of predecessor in title evidence. 1850. Declarations which are a part of the transaction. 1852. Declaration of decedent evidence of pedigree. 1853. Declaration of decedent evidence against his successor in interest. 1854. When part of a transaction proved, the whole is admissible. 1856. An agreement reduced to writing deemed the whole. 1861. Terms to be construed in their general acceptation. 1862. Written words control those printed in a blank form. 1863. Persons skilled may testify to decipher characters. 1864. Of two constructions, which preferred. 1865. A written instrument construed as understood by parties. 1866. Construction in favor of natural right preferred. 1867. Material allegation only to be proved. 1868. Evidence confined to material allegation. 1869. Affirmative only to be proved. 1870. Facts which may be proved on trial. 1844. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason. 1. Evidence of Treason.-Penal Code, sec. 1103, n. 2, ante. 1845. A witness can testify of those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible. 1. Competency of Witness.-Penal Code, sec. 1321, n. 25, ante. 2. Opinions of Witness.-Penal Code, sec. 1321, n. 29, ante. 3. Privileges of Witness.-Penal Code, sec. 1321, n. 30, ante. 1846. A witness can be heard only upon oath or affirmation, and upon a trial he can be heard only in the presence and sub ject to the examination of all the parties, if they choose to attend and examine. 1. Manner of Administering Oath.—Secs. 2093–2097, post; Penal Code, sec. 119, n. 1, ante. 1847. A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. 1. Credibility of Witness.-Penal Code, sec. 1102, n. 29, ante. 1848. The rights of a party can not be prejudiced by the declaration, act, or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one can not affect another. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1. Dying Declarations.-Penal Code, sec. 1102, n. 10, ante. 1849. Where, however, one derives title to real property from another, the declaration, act, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. 1850. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction. 1. Res Gestæ.-Penal Code, sec. 1102, n. 20, ante. 1851. And where the question in dispute between the parties is the obligation or duty of a third person, whatever would be the evidence for or against such person is prima facie evidence between the parties. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1852. The declaration, act, or omission of a member of a family, who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible. 1853. The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest. 1854. When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing, which is neces sary to make it understood, may also be given in evidence. 1. Cross-examination.-Penal Code, sec. 1102, n. 30, ante. 1855. There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: 1. When the original has been lost or destroyed; in which case proof of the loss or destruction must first be made; 2. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice; 3. When the original is a record or other document in the custody of a public officer; 4. When the original has been recorded, and a certified copy of the record is made evidence by this code or other statute; 5. When the original consists of numerous accounts or other documents, which can not be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole. In the cases mentioned in subdivisions three and four, a copy of the original, or of the record, must be produced; in those mentioned in subdivisions one and two, either a copy or oral evidence of the contents. [Amendment, approved March 24, 1874; in effect July 1, 1874. 1856. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue by the pleadings; 2. Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in section 1860, or to explain an extrinsic ambiguity, or to establish illegality or fraud. The term agreement includes deeds and wills, as well as contracts between parties. |