If any improper, e.g., an irrelevant or leading, question be put in examination-in-chief, the counsel on the other side should immediately interpose and object to it before the witness has time to answer it, though in the case of a leading question this will often be ineffectual, inasmuch as the mischief has been done by the suggestion being made. Counsel in the same way should interpose if parol evidence is proposed to be given when a document should be produced. CHAPTER XIII. EVIDENCE. "EVIDENCE, in law, includes all the legal means, exclusive of mere argument, which tend to prove or disprove any fact the truth of which is submitted to judicial investigation" (a). In ascertaining the law on the subject of evidence in general, three heads present themselves under which may be ranged the chief principles which it is necessary to consider : 1. On whom the burden of proof lies. 2. What must be proved, and what may not be proved. 3. How it must be proved. 1. The burden of proof is on the prosecution as a rule. The prosecution must prove their case before the prisoner is called upon for his defence; and this although the offence alleged consists of an act of omission and not of commission, and therefore the prosecution have to resort to negative evidence (b). The law considers a man innocent until he is shown to be guilty. But the principle under discussion must not be understood with unlimited signification. Though the burden of proof of the charge is in general on the prosecution, yet on particular points it is on the prisoner. This is markedly the case in some offences. Thus, by various Acts of Parliament, it is declared penal to do certain things, or possess certain articles, without lawful excuse or authority; such excuse or authority must be proved by the accused. For example, to possess public stores marked with the broad (a) 1 Tayl. Ev. 1. (b) There is an exception to this rule when the accused pleads specially, e.g., autrefois acquit. arrow (c); to possess coining tools (d). Again it lies on the defendant to prove that signals to smuggling vessels were not made for the purpose of giving illegal notice (e), also to show some justification for sending an unseaworthy ship to sea (f). So where a person is charged with making or having in his possession any explosive substance, under suspicious circumstances, the onus lies on him to show that he made it or had it in his lawful possession for a lawful object (g). Again the onus lies on a defendant, who is accused of forging, &c., a trade mark, trade description, &c., to prove that he acted without intent to defraud (h); or if he be accused of selling, &c., goods, with any forged trade mark, description, &c., to prove that he took reasonable precautions and had no reason to suspect the genuineness of the mark, &c., gave the prosecutor all information in his power with respect to the persons from whom he obtained such goods, &c., or otherwise acted innocently (i). But it will be noticed that in all these cases there is something to be proved in the first instance by the prosecution-e.g., the possession of the goods or the unseaworthiness of the ship. And not only in the particular cases of which we have given examples, but in most cases of circumstantial evidence there is a point (though it is impossible to determine exactly where it lies) at which the prosecutor has done all that he can reasonably be expected to do, and at which it is reasonable to ask for evidence from the prisoner in explanation, and to draw inferences unfavourable to him from its absence" (k). Thus in a case of murder by poisoning, the Court will naturally expect from the prisoner an explanation of the object for which poison was purchased if it is traced to his possession; so also in the case of the possession of recently stolen goods. Killing is presumed to be murder until otherwise accounted for. (c) 38 & 39 Vict. c. 25. (d) 24 & 25 Vict. c. 99, s. 24. (k) St. Dig. Cr. L. 303 (1st ed.). 2. What must be proved? All facts and circumstances stated in the indictment which cannot be rejected as surplusage; in other words, all the constituents of the offence. Though, as we shall see hereafter, if a more serious crime contains, as it were, a less serious one, the prisoner indicted for the former may sometimes be convicted of the latter, if the more serious circumstances cannot be established; thus on an indictment for murder if malice be not proved, the prisoner may be convicted of manslaughter. In any case, however, the offence must be proved to have been committed within the extent of the Court's jurisdiction. Closely connected with the question "What must be proved?" is the question "What may not be given in evidence?" As a rule, nothing must be given in evidence which does not directly tend to prove or disprove the matter in issue. The previous or subsequent bad character of the prisoner may not be proved, unless to rebut evidence of good character (1). Nor may evidence be adduced to show that the prisoner has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried (m). But such evidence may be admissible if it is relevant to an issue before the jury, and it may be relevant to prove guilty knowledge, design, or system, or to rebut a defence set up by the prisoner (n), or where it relates to facts which form part of the same transaction as, and so explain, the facts upon which the prisoner is charged (o). Accordingly (i) When it is necessary to prove the guilty knowledge of the defendant, evidence may sometimes be given of his having committed the same offence on other occasions. Thus, on an indictment for uttering forged banknotes, or for uttering counterfeit coin, evidence may be given of the (1) v. R. v. Rowton, [1865] 34 L. J. M. C. 57; 11 L. T. (N.s.) 745. (m) Makin v. Att.-Gen. for New South Wales, [1894] A. C., at p. 65; 63 L. J. P. C. 41. (n) Ibid. and see other cases cited Archbold 342, 344. As to when such evidence may be given to rebut a defence, see in particular R. v. Bond, [1906] 2 K. B. 389. (0) See Archbold, 344. defendant having at other times uttered or had in his possession other forged banknotes or counterfeit coin (p)So the guilty knowledge of the falsehood of a pretence may be shown by evidence of a previous or even sometimes of a subsequent obtaining, or attempting to obtain, by similar. false pretences (q). So also, as we have seen (r) the guilty knowledge of a receiver of stolen property may be proved by evidence of his possession of other stolen property or of his. previous convictions. (ii) When it is necessary to prove malice, or intent, on the part of the defendant, or to rebut a possible suggestion of mistake or accident, evidence of other similar acts may be given. Thus in a trial for murder, evidence of former unsuccessful attempts or threats to murder the same person, and even of the actual murder of other persons by the same means, has been admitted as being relevant to the question whether the prisoner's actions proved in the case under inquiry have been wilful or accidental (s). And upon this principle it is permissible to prove by other acts committed by the prisoner similar to that with which he is charged that the latter offence was part of a systematic scheme or course of conduct which he designedly adopted, as such evidence raises a presumption that he was not acting under a mistake or undesignedly (t). Evidence of this kind has been admitted in cases of obtaining by false pretences (u), embezzlement and falsification of accounts by servants (w), forgery (a), larceny (y), procuring (p) For a number of authorities as to these and similar cases, v. Archbold, 345. (q) R. v. Francis, [1874] L. R. 2 C. C. R. 128; 43 L. J. M. C. 97; v. p. 236, ante. (r) Ante, p. 219.. (s) R. v. Geering, [1849] 18 L. J. M. C. 215; Makin v. Att.-Gen. for New South Wales, [1894] App. Cas. 57; 63 L. J. P. C. 41; R. v. Bond, [1906] 2 K. B. 389; 75 L. J. K. B. 693. (t) R. v. Francis, [1874] L. R. 2 C. C. R. 128; 43 L. J. M. C. 97; and see the cases cited above. (u) v. pp. 235, 236. (w) R. v. Richardson, [1860] 2 F. & F. 343; 8 Cox. C. C. 448; R. v. Stephens, [1888] 16 Cox, C. C. 387. (x) R. v. Millard, [1813] R. & R. 245; R. v. Salt, [1862] 3 F. & F. 834. (y) R. v. Bleasdale, [1848] 2 C. & K. 765; R. v. Firth, [1869] L. R. 1 C. C. R. 173; 38 L. J. M. C. 54. |