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AS TO PROOF.
be recalled (1), and this is competent though the wit- GENERAL RULES ness was not re-inclosed (2).
The burden of proof lies on the party who makes Burden of proof. an allegation. But this does not hold where the facts are peculiarly within the knowledge of the other party, and where leaving the burden on the examiner would necessitate proof of a general negative.
Thus, in charges of concealment of pregnancy, the negative fact that the woman did not reveal, or call for and use assistance, is presumed (3). And many statutes throw the burden of proof on the accused, that things done contrary to them were not done knowingly. Also, where the prosecutor proves the offence charged, prima Prima facie
proof shifts facie, the burden is shifted.
If he prove that the burden. accused wounded and killed another, he throws the burden upon him of showing that his act was not murderous. If he prove that the accused abstracted property, he throws upon him the burden of showing that he did not do so theftuously (4). The same holds where the offence consists in doing what it is illegal to do without a special qualification. The act being proved, it lies with the accused to show that he possessed the qualification (5). All proof must be in presence of the Court, accused Proof in presence
of Court, accused and assize (6). It is not competent to read to the and assize. jury sworn depositions of witnesses taken upon a former occasion (7). They, if alive, must themselves appear and depone (8). Neither judge or jury may act upon
1 Act 15 and 16 Vict c. 27 & 4. 3 Dicksou i. $ 10.-Hume i. 294.— -Dickson ii. & 1981.--Hume ii. 381, Alison i. 155. case of Hamilton in note 2.-Alison 4 Dickson i. $ 14. ii. 543. -Ann Scott and others, 5 Dickson i. $ 10. H.C., March 21st 1842; 1 Broun 6 Hume ii. 404, 405.-Alison ii. 131 and Bell's Notes 268. Other 548. cases are mentioned on this page of 7 Hume ii. 406. Bell's Notes. See James Wilson 8 Hume ii. 406. As to procedure and others Glasgow, Dec. 23d 1862; where a juryman is taken ill and 4 Irv. 255 and 35 S. J. 159, as an another ballotted, see Donald Ross, instance of the Court refusing to Inverness, Sept. 29th 1842; 1 allow recall.
Broun 434 and Bell's Notes 287 ; 2 Geo. Gilchrist and others, July and Denis Lundie, H.C., June 22d 13th 1831.-Bell's Notes 268.
1868; 1 Couper 86.
AS TO PROOF.
GENERAL RULES private knowledge of a fact (1). It has even been held that a jury ought not to inspect documents to satisfy themselves as to handwriting (2).
Jury inspecting document.
Where it is proposed to prove facts to discredit the witness under examination, or facts which the witness is best qualified to speak to, a foundation must be laid by interrogating the witness on them (3), and this rule applies whether the facts are to be proved by witnesses or documents (4). The prosecutor is in a position of difficulty as regards contradicting evidence for the defence, as it has never been held that he can lead a proof in replication. Accordingly, in one case the prosecutor was allowed to ask a Crown witness whether a witness for the defence had made a certain statement (5).
Rule as to foundation only
ters known to party.
The rule requiring a foundation to be laid is only applied to mat- applied to matters which the parties ought to have known and spontaneously propose to prove. If it come out "suddenly and unawares" that a previous witness has expressed malice against the accused, it is competent to ask whether he was ever heard to say anything else indicating malice (6).
The accused cannot be put on oath, nor a reference made to his oath. And although the prosecutor may be a competent witness it is not competent to refer the case to his oath.
Discrediting exculpatory witness.
Reference to oath.
PAROLE PROOF. Questions must be relevant.
The questions put must be relevant. But the
1 Morrison v. Monro, H.C., Dec., 16th 1854; 1 Irv. 599 and 27 S. J. 78.
2 John G. Robertson, H.C., Feb. 19th 1849; J. Shaw 186.-Will. M'Gall, H.C., March 13th 1849; J. Shaw 194.-These cases seem not to have been before the Court in the Circuit case of Rob. M. Beveridge, Ayr. Oct. 6th 1860; 3 Irv. 625, where it was intimated that the jury might look at the documents and judge for themselves.
in note 4.-Hugh M'Hardie, Glas-
4 Jas. Stevens, H.C., Mar. 15th
3 Hume ii. 399, case of Stewart
5 Will. Common, H.C., Dec. 10th 1860; 3 Irv. 632 and 33 S. J. 68.
6 Robertson v. Mackenzie, Inverness, April 20th 1856; 2 Irv. 411 and 28 S. J. 388.
fere with cross, merely because the relevancy of the questions is not at first sight apparent. For it may be necessary to lead up to what is relevant by preliminary questions, and in cross examination latitude must be allowed to test the witness' capacity and credibility (1). But oppressive examination will be checked by the Court. Although, as a rule, witnesses must speak to facts, Exceptions to
rule that proof is and not to inferences, certain exceptions are admitted. to facts only Where a witness has deponed to hearing cries, he may say whether he thought they were those of a male, or a female, or a child, such an inference, though matter of opinion, being equal to fact from the almost absolute certainty with which one can judge. Again, persons who know an individual well may be asked as to their opinion about his sanity, even though not possessed of medical skill (2). The principal exception to the rule Scientific .
evidence. is where skilled witnesses are asked their opinion on facts, as assessors, to aid the jury in making inferences which require special information. Thus opinions may be taken on the question whether injuries caused death or danger to life, or were inflicted with sharp or blunt instruments, or the question whether a symptom indicated poisoning. Persons who are familiar with the writing of an individual may be asked to say whether he wrote a certain document. Care is taken to confine such investigations within proper limits. Thus, in a case of rape, where a witness was asked whether it was possible to commit rape in the circumstances detailed, the question was disallowed as not involving professional opinion (3). Again, where a doctor who had not examined the accused, was asked his opinion on the evidence as to the accused's state of mind, the question was objected to, and was withdrawn (4). 1 Dickson ii. § 2023.
10th 1836; 1 Swin. 316. 2 Alex. Dingwall, Aberdeen, 4 Malcolm M‘Leod, Inverness, Sept. 19th and 20th 1867; 5 Irv. 466. April 14th 1838 ; 2 Swin. 88 and
3 Rob. Henderson, H.C., Nov. Bell's Notes 269.
It is a ques
Anterior or collateral circumstances.
The proof is confined to those facts which are within the scope of the libel and defences. But this does not
mean that no other fact may be proved, but only that Confined to facts the proof is not to be extended generally to events
which happened before the crime libelled, or are of the
Circumstances which formed part of the res gesta
1 Donald Stewart and others, Inverness, Sept. 14th 1837 ; 1 Swin. 540 and Bell's Notes 91.
2 Malcolm M‘Leod, Inverness, April 14th 1838 ; 2 Swin. 88 and Bell's Notes 5.-James Gibson, H.C., Dec. 23d 1844 ; 2 Broun 332. -Jas. Brown and Geo. Brown, jun., Perth, April 25th 1855 ; 2 Irv. 154. -Ann M'Que, H.C., March 12th 1860 ; 3 Irv. 578.-Alex. Dingwall, Aberdeen, Sept. 19th and 20th 1867 ; 5 Irv. 466 and 4 S. L. R. 249
-Agnes Laing or Paterson, Perth, April 22d 1872; 2 Couper 222 and 44 S. J. 378 and 9 S. L. R. 448.
3 Elizabeth Laird or Stewart, Ayr, April 25th 1848 ; Ark. 471. Such a question must be determined according to circumstances, and there may be room to doubt whether such evidence should be admitted in any case.
4 Euphemia Robertson and others, Perth, April 22d 1812; 1 Broun 295 and Bell's Notes 290.
may be proved. But difficult questions arise as to the PAROLE PROOF. competency of proving facts without notice, e.g., in cases of seditious conspiracy, the prosecutor must set forth full details of the conspiracy, including statements of the import of speeches made; and yet it might be impossible to detail all the acts by which guilt was betrayed, and it seems, therefore, that if the prosecutor set forth the proceedings with such particularity as to make a relevant libel, he may prove additional incidents (1). Sometimes an incident, though not libelled Fact not duly correctly, may be admissible as a circumstance of evidence. Thus, where an article was libelled on stolen from a chest, whereas it was taken from another place close by, proof was allowed that it was found in the accused's possession, as a circumstance in the proof of the theft of the other articles libelled (2). Again, in Removal of goods
in fire-raising. a charge of fire-raising, proof was allowed (without notice of the removal of goods before the fire, as evidence of the fire-raising, and the intent (3).
Circumstances which supply a motive may be proved. Proof of motive. In cases of fraudulent fire-raising, it is competent to prove that the accused's affairs were embarrassed (4). And, in a case of murder of a wife, proof of criminal intimacy between the accused and a servant, and promises of marriage made to her was allowed (5).
Facts indicating malice may be proved for a period of a fortnight prior to the offence without notice (6).
1 Dickson i. $ 36.- Jas. Cumming 6 Dickson i. $ 36 and note o.-and others, H.C., Nov. 7th 1848 ; Alison i. 11 and case of Divine there. J. Shaw 17.
-i. 630.-John G. Robertson and 2 Jas. Gardiner, Glasgow, Sept., others, H.C., March 24th 1842; 1 30th 1837 ; 1 Swin. 548 and Bell's Broun 152, observation by Lord JusNotes 218.
tice Clerk Hope on page 173.-See 3 Will. M'Creadie, Ayr, Oct. 2d also Rob. Emond, Feb. 8th 1830; 1862 ; 4 Irv. 214 and 35 S. J. 3. Bell's Notes 289 and 293.-- Arthur
4 Harris Rosenberg and Alithia Woods and Henrietta Young or Barnett or Rosenberg, Aberdeen, Woods, H.C., Feb. 25th 1839 ; 2 April 16th 1842; 1 Broun 266 and Swin. 323 and Bell's Notes 289 and Bell's Notes 293.
291. In one case, Alex. Millar, 6 Edward W. Pritchard, H.C., H.C., March 18th 1837; 1 Swin. July 3d and 7th 1865 ; 5 Irv. 88. 483 and Bell's Notes 79, threats