confession, the danger of which is the only reason for excluding confessions at all, and as the hopes and fears, which the law contemplates are hopes of temporal advantage, and fears of punishment in this world, and not considerations relating to pardon or suffering in another state of being. (r) And discoveries made, or acts done, in consequence of a confession unduly obtained, may always be given in evidence, with so much of the confession itself as strictly relates to them. (s) Confessions are only evidence against the party con- Confessions only fessing, not against others indicted with him; unless evidence against party confessing, they were present when he made his statement, and by and must be silence or otherwise, may be fairly considered as assent- taken together. ing to its truth. (t) And the prisoner is always entitled to have the whole of any paper produced against him; and the whole of any conversation to part of which the prosecutor examines, submitted to the jury. (u) though the prosecutor is at liberty to shew that any part of the statement so made is false, either by direct proof, or by shewing facts with which it is incompatible, yet, if there be nothing to impugn it in the case, the jury ought to give weight to the whole, and acquit if its statement so adduced warrants an acquittal. (v) And § 8. OF CONFINING THE EVIDENCE TO A SINGLE TRANSACTION. Frequent confusion and occasional failures of justice have arisen from the want of a clear understanding of the rule, that the prosecutor is bound to make his election. of the precise felony on which he will proceed; and offenders have sometimes escaped punishment altogether, from the mere circumstance that they have committed several offences so connected that it was impossible entirely to sever one from the others. It is, therefore, important that we should ascertain precisely what the rule is, and in what manner it ought to be applied in practice. The only rule of law, strictly speaking, on this subject, is, Evidence must that all evidence must be relevant to the issue; and, there- be relevant to (r) The King v. Gilham, M. S. Easter Term, 1828. and M. p. 650, 1. (t) The King v. Tony, Kelyng, 18; the King v. Hevey, 1 Leach, 235; the King v. Appleby, 3 Stark. N. P. C. 33. (u) The Queen's case, 2 Brod. and Birg. 297. (v) The King v. Jones, 2 Carr. and P., N. P. C. 630. the issue. fore, it is not competent to the prosecutor to blacken the general character of the prisoner by shewing that he committed a crime for which he is not indicted, and which forms no part of the transaction which is the subject of inquiry. We have seen that, in point of law, the joinder of several felonies in one indictment is not liable to objection; and, in fact, every count purports on the face of it to contain a distinct charge; (w) but it has been the practice for judges, in their discretion, to require the prosecutor to confine his evidence to a single transaction, lest the prisoner should be overwhelmed by a number of accusations. But the principle on which this practice rests is entirely forgotten when the discretion of the Court is applied to prevent the full proof of one connected transaction involving the felony charged, because in such transaction another felony is involved, which must also appear in proof if the whole transaction is sifted. And accordingly the better considered and more recent decisions all shew that the prosecutor may prove every thing relative and necessary to elucidate a single charge, although in so doing he must shew other felonies as a medium of proof. Thus, in a very recent case, (r) where the prosecutor, suspecting the prisoner, had put marked money into his till, and caused him to be watched, evidence was admitted of several visits to the till by the prisoner, of several inspections of the till consequent upon them, and of the several results of those inspections, that the money was each time reduced, though it was objected that this was proof of several felonies. An application was made to the Court of King's Bench to stay the judgment on the ground that the prosecutor ought to have been confined to proof of a single felony; but the Court held that the judge had a discretion to allow evidence of several felonies when they formed part of one transaction. On this argument Mr. Justice Holroyd mentioned a case of the King v. Egerton, in which at a trial for robbery effected by a threat of a shocking accusation, he allowed evidence of an attempt by the prisoner at another time to obtain other property of the prosecutor; and the judges, on the point being stated to them, agreed that he was warranted in receiving the proof. Evidence even of three distinct burglaries, when necessary to the history of one has been received, and the admission of the proof had the high sanction of Lord Ellenborough's approval. (y) And where (w) Ante, p. 103. (x) The King v. Ellis, 6 B. and C. 145. (y) The King v. Wylie, 1 New R. 94. a number of articles are found in the prisoner's possession, the mere probability that he stole them at different times is no ground for requiring the prosecutor to confine his evidence to one of them if they might have been stolen at once. (z) And though, on an indictment for receiving, if it distinctly appear that articles were received at different times, the prosecutor may be required to elect on which act of receiving he will found his case, he may still give evidence of the other receivings as proof of guilty knowledge. (a) It is now completely settled that on an indictment for Evidence of uttering forged notes or counterfeit coin, the prosecutor other utterings to prove guilty may give evidence of other utterings of similar notes or knowledge. coin, though they are not charged on the record, as evidence of knowledge. (b) It appears, indeed, that in one case Mr. Baron Vaughan refused to admit evidence of an uttering for this purpose, which was the subject of a distinct indictment pending; (c) but, in another case, the same learned judge allowed the evidence to be given on the counsel for the prosecution abandoning the other indictment, though the prisoner had pleaded to it at the time, and the jury were sworn to try it; (d) and this interposition must be regarded as mere exercise of judicial discretion; for it is impossible to point out any rule of law on which the evidence could be rejected. The practice of confining the evidence, even to a single transaction, is confined to felonies. In misdemeanors, several distinct offences, as assaults and libels, if charged separately in the indictment, may be all proved at the trial. (e) (z) The King v. Dunn and Smith, R. and M. C. C. R. 148. The King v. Moss, Hereford Summer Assizes, 1827.-In a subsequent case at Stafford, the same learned judge proposed to reserve the point; but there the evidence was not pressed, and the prisoners were convicted without it. On that occasion, it was also contended that the prosecuting counsel could not abandon the indictment charging the uttering which he purposed to prove; and the learned judge proposed to reserve this point in case the evidence should be pressed, and the prisoner's counsel persist in his objection. Supposing the doctrine carried to this extent, the greatest inconvenience would follow; for either the examining magistrate must take on himself to decide on which case of uttering, perhaps out of several, the prisoner must ultimately be tried; or he must bind over persons to prosecute, who by the act of preferring indictments in obedience to their recognizance, would be actually affording the prisoner the certain means of escape, by striking out all evidence of his guilty knowledge. (e) Ante, p. 103. Proof of loss of document. § 9. OF THE NECESSITY OF PRODUCING THE BEST EVIDENCE WHICH APPEARS TO BE IN EXISTENCE. It is a general and invariable rule of evidence, both in civil and criminal cases, and whether the proof be offered on the part of the prosecution or of the defence, that the best evidence must be produced of which the nature of the case will allow.(f) The meaning of this rule is not that the greatest quantity of proof which might be obtained shall be imperatively required, but that nothing shall be admitted as proof, which being in its own nature secondary, implies the existence of primary proof, unless it be shewn that such primary proof is destroyed, or is out of the reach of the party desiring to use it. Thus no copy of any document can ever be read, unless it be either proved that the original is lost, or that it is in the possession of the adversary, and further, that the party who offers the copy has done all in his power towards the production of the original, in the first case by making diligent search for it, and in the last by giving a timely notice to produce it. Thus, the execution of a deed or will can only be proved by one of the subscribing witnesses if he be living; but it is never necessary to call more than one, although there may be three names on the face of the instrument. (g) In general, where matter in writing is to be proved, no parol evidence of its contents can be received, unless it be first proved that the writing is destroyed, or in the possession of the opposite party; but where the writing is not itself the fact to be proved, but only one means of evidencing a fact, other means of proof may be at once adopted. Thus, the payment of money may be proved by a witness who saw it paid, or to whom the party receiving it has admitted the payment, although a receipt was given at the time. (h) And, if several persons are present at the same transaction, and one of them only makes a memorandum to refresh his memory, the evidence of the witnesses who made no memorandum will not be excluded. (i) Where the original of any document is lost, it must be shewn that all reasnoable search was made for it in the places where it is likely to be found. If the instrument be traced to the possession of a particular person, that person must be called, and it will not suffice to shew an (f) Bul. N. P. 293. (g) Bul. N. P. 264. (4) Rambut v. Cohen, 4 Esp. R. 213; Jacob v. Lindsay, 1 East, R. 460. (i) 1 Stark. Ev. 394. application to him for it, and his answer that he cannot find it. (j) And where an individual is by law entitled to the custody of an instrument, it is absolutely necessary to call him to disprove the presumption that he possesses it. (k) If two parts of a deed be executed, the non-production of both must be accounted for, before secondary evidence can be given of either. (7) And all the witnesses to an instrument must be proved to be dead or abroad, or not producible on diligent enquiry, before evidence of the handwriting of any can be given; but when this is done, proof of the attestation of one will suffice; and, except to shew identity of parties, it is never necessary to prove the handwriting of the party executing. Where an instrument is in the possession of a prisoner, Notice to prosecondary evidence of its contents must be given, after duce. notice to produce, as if he were a party in a civil cause. (m) And this notice is not necessary where the nature of the charge implies that the instrument is in the possession of the prisoner, the instrument being the very object of the proceeding. Thus, on an indictment for stealing a security, parol evidence of its contents may be given without any notice to produce it. (n) Thus, on an indictment for forging a note, which the prisoner, on his apprehension has swallowed or destroyed, no notice to produce is requisite. (0) Where notice to produce is necessary, it may be by parol or in writing; (p) if in writing, it should be entitled in the prosecution, (q) and should express, if not with literal, with substantial accuracy, the document required; for a notice to produce "all letters, papers, and documents relating to the cause" is too vague. (r) The notice must be served in time sufficient to enable the prisoner to produce the paper, (s) either on the prisoner or his attorney, as in civil cases. (t) It follows, as a plain example of this rule, that hearsay, Hearsay not adthat is, the statement of some third person, is not to be missible. received; because the party himself who is represented as The King v. Castleton, 6 T. R. 236. (k) The King v. Stoke Golding, 1 B. and A. 173. (1) Bull, N. P. 254. (m) The King v. Watson, 2 T. R. 201. n. (a.) (n) The King v. Aickles, 1 Leach, 294. The King v. Spragge, cited by Lord Ellenborough in Hare v. Hall, 13 East, 124. Smith v. Young, 1 Campb. 440. Harvey v. Morgan, 2 Stark. N. P. C. 17. France v. Lucy, Ry. and Mo. N. P. C. 341. (s) Bryan v. Wagstaff, 1 Ry. and Mo. N. P. C. 327. (t) The Attorney General v. Le Merchant, 2 T. R. 203, in note. |