Upon trial for arson. To explain facts. To rebut an alibi. Where all the acts are part of the same transaction. Proof of other acts and de clarations of prisoner as evidence for him of his innocence. admissible in order to negative the defence that these were merely accidental errors. (a) Upon a trial for arson with intent to defraud an insurance company, evidence that the prisoner had made claims on two other insurance companies in respect of fires which had occurred in two other houses which he had occupied previously and in succession, was admitted for the purpose of showing that the fire which formed the subject of the trial was the result of design and not of accident. (b) On an indictment for arson, one count laying an intent to defraud, and it being opened for the prosecution that the motive might have been to realize the money insured by the prisoner upon her goods, evidence was received that she was in easy circumstances, with a view to show that she was, at all events, under no pecuniary temptation to commit such an act. (c) Where on a trial for rape it was elicited on cross-examination that the act had not caused any pain, Rolfe, B., held that it might be proved on re-examination that the prisoner had done the same thing on previous occasions; for that evidence tended to explain the fact that the act in question had not caused any pain. (d) On an indictment for robbery the defence was an alibi, and in order to show that the prisoner was near the place of the robbery at the time it was committed, Alderson, B., held that a witness might be examined to show not merely that he had been accosted by the prisoner on the road shortly before the prosecutor was robbed, but that he had also been in fact robbed by the party who accosted him. (e) On an indictment for abusing a child under the age of ten years, the first occasion spoken to by the child was a Thursday morning, on which the prisoner threatened to beat her if she told, and it was held that evidence of subsequent perpetrations of the offence on Saturday and Monday was admissible. Willes, J., The practice is, no doubt, in the discretion of the Court, to call on the prosecution to elect, but that is a course never taken where the acts are all in substance part of the same transaction; and here, in my opinion, it is so. It has repeatedly appeared to me, in cases of this sort, that the man, by a threat of violence, deters the child from complaining, and thus acquires a species of influence over her by terror, which enables him to repeat the offence on subsequent occasions, and this seems to me to give a continuity to the transaction, which makes such evidence properly admissible.' (ƒ) As other acts and declarations of the prisoner, besides those charged in the indictment, may be given in evidence on the part of the prosecution, so he himself in his defence may in some cases prove other acts and declarations of his own, as evidence of his innocence. Thus on a charge of murder, expressions of goodwill and acts of kindness on the part of the prisoner towards the deceased are always considered important evidence, as showing what was his general disposition towards the deceased, from which the jury may be led to conclude that his intention could not have (a) Reg. v. Richardson, 2 F. & F. 343, vol. 2, p. 386. See R. v. Balls, 40 L. J. M. C. 148. (b) R. v. Gray, 4 F. & F. 1102. (c) R. v. Grant, 4 F. & F. 322. 92. (d) Reg. v. Chambers, 3 Cox, C. C. been what the charge imputes. (g) So in the case of Rex v. Lambert, (h) where the supposed libel, which was the subject of prosecution, was contained in a paragraph of a newspaper, of which the defendants were the printer and proprietor, Lord Ellenborough, C. J., held that the defendants had a right to have read in evidence any other paragraph in the same newspaper connected with the subject of the passage charged as libellous (although disjointed from it by extraneous matter, and printed in a different character) for the purpose of showing the intention and mind of the defendants with respect to the specific paragraph laid in the indictment. And as in trials for conspiracies, whatever the prisoner may have done or said at any meeting alleged to be held in pursuance of the conspiracy is admissible in evidence against him on the part of the prosecution, so, on the other hand, any other part of his conduct at the same meetings will be allowed to be proved on his behalf; for the intention and design of the party at a particular time are best explained by a complete view of every part of his conduct at that time, and not merely from the proof of a single and insulated act or declaration. (i) In the case of Walker and others, who were tried for a conspiracy to overthrow the Government, and evidence was produced, on the part of the prosecution, to show that the conspiracy existed, and was brought into overt act at meetings in the presence of Walker, the counsel for the prisoners was allowed to ask a witness whether, at any of these times, he had ever heard Walker utter any word inconsistent with the duty of a good subject. The question was opposed, but held by Mr. J. Heath to be admissible. The prisoner's counsel were also allowed in the same case to inquire into the general declarations of the prisoner at these meetings, whether the witness had heard him say anything that had a tendency to disturb the peace of the kingdom; and questions to the same effect were put to many other witnesses in succession. (j) On the trial of Hardy for high treason, where the overt act Hardy's case. charged was that the prisoner, for the purpose of accomplishing the treason of compassing the King's death, did conspire with others to call a convention of the people, in order that the convention might depose the King; the counsel for the prisoner were allowed to ask a witness whether, before the time of the convention which was imputed to the prisoner, he had ever heard from him what his objects were, and whether he had at all mixed himself in that business. (k) But the better opinion seems to be that, But such acts of a sum of money advanced by him by and declara tions of the prisoner must be connected with the facts him. in order to make such other acts or declarations of the prisoner applicable to his defence, it must be shown that they are in some way connected with the facts proved against him. (1) In the case proved against of Horne Tooke and others, however, for high treason, several publications having been given in evidence on the part of the Crown, containing republican doctrines and opinions, the distribution of which had been promoted by the prisoners during the period assigned in the indictment for the existence of the conspiracy, the prisoner was allowed to read in his defence various extracts from works which he had published at a former period of his life; and these the jury were permitted to carry along with them when they retired to consider of their verdict. (m) But the propriety of allowing such a defence has been questioned by very high authority. (n) Evidence of several transactions when cumulative instances are necessary to prove the offence charged. Cases as to the relevancy of evidence. Unlawful assembly. Hunt's 8 case. It may also happen that, from the nature of the offence charged, it is impossible to confine the evidence to proof of a single transaction. Thus on an indictment against several defendants for a conspiracy to cause themselves to be believed persons of large property, for the purpose of defrauding tradesmen, Lord Ellenborough allowed the prosecutor to prove various instances of their giving false representations of their circumstances; (0) observing that the indictment was for a conspiracy to carry on the business of common cheats, and cumulative instances were necessary to prove the offence. The same sort of evidence, said his lordship, is allowed on an indictment for barratry; (p) and in a prosecution for high treason itself, the gravest of all offences. The rule is clear and general, that no question can be put which is not relevant to the issue (unless for the purpose of impeaching the credit of a witness); but the applicability of the rule must obviously depend upon the particular circumstances of each individual case, and will not admit of a general demonstration. It may, however, be useful to state some criminal cases, where questions as to the relevancy of evidence have arisen and been decided. On the trial of an indictment against several persons for a conspiracy, in unlawfully assembling for the purpose of exciting discontent and disaffection, it would be irrevelant to inquire, on behalf of the defendants, what the conduct of those, employed to disperse the meeting, may have been at the time of the dispersion, if no evidence has been previously offered, on the part of the prosecution, as to the conduct of the meeting at that time or subsequently; for the conduct of the dispersers of the meeting can have no bearing on the intention and object of the meeting itself; in other words, it is irrelevant to the matters at issue. (q) In such a prosecution, as the material points for the consideration of the jury are, the general character and intention of the assembly, and (1) Rex v. Lambert, 2 Campb. 400. Lord George Gordon's case, 21 How. St. Tr. 542. Hanson's case, 31 How. St. Tr. 4281. 1 Phill. Ev. 480. (m) 1 East, P. C. c. 11, s. 8, p. 61. 25 How. St. Tr. 545. (n) By Lord Ellenborough in Rex v. (0) Rex v. Roberts, 1 Campb. 400, ante, Mars. 337, ante, p. 151. (p) The prosecutor must, before the trial, give the defendant a note of the particular acts of barratry he intends to prove against him; and will not be at liberty to give evidence of any other. Vol. 1. p. 362. (7) Rex v. Hunt, 3 B. & A. 566, 577. 1 Phill. Ev. 476. See also Redford v. Burley, 3 Stark. N. P. C. 87, 88, 91. the particular case of each defendant as connected with that general character, it would be relevant to prove, on the part of the prosecution, that bodies of men came from different parts of the country to attend the meeting, arranged and organized in the same manner, and acting in concert. It would be relevant also to show, that early on the day of the meeting, in a spot at some distance from the place of meeting (from which very spot a body of men came afterwards to the place of meeting), a great number of persons, so organized, had assembled, and had there conducted themselves in a disloyal, riotous, or seditious manner. (r) Further, it would be relevant, on such trial, to produce in evidence certain resolutions, which had been proposed, by one of the defendants, at a large assembly in another part of the country, very recently held for the same professed object and purpose as were avowed by the meeting in question, that defendant having acted at both meetings as president or chairman; in a question of intention as this is, it is most clearly relevant to show, against that individual, that, at a similar meeting, held for an object professedly similar, such matters had passed under his immediate auspices. (8) In cases of treason and felony, it may be proved that articles Articles found were found secreted in the prisoner's house, after his apprehension. in prisoner's In Watson's case, evidence was admitted that a quantity of pikes apprehension. had been found secreted in the prisoner's house subsequently to his apprehension. (t) With respect to writings found after the pri- Writings soner's apprehension, it appears to have been laid down in Hardy's found after case (u) that papers found in the possession of conspirators with prisoner's the prisoner, but subsequently to his apprehension, ought not to be read against him, unless there was evidence to show their previous existence; for otherwise there was no evidence that the prisoner was a party to it. And on a prosecution for a conspiracy, it was held that some letters which were directed to the prisoners and intercepted at the post-office after their apprehension, were not admissible in evidence against them, as they had never been in the custody of the prisoners, or in any way adopted by them. (v) So on an indictment for uttering a forged bank-note, knowing it to be forged, it was held that a letter purporting to come from the prisoner's brother, and left by the postman pursuant to its direction at the prisoner's lodgings, after he was apprehended, and during his confinement, but never actually in his custody, could not be read in evidence as proof of his knowledge that the note was forged. (w) But in Watson's case (x) it was held that papers found (r) Ibid. (s) Rex v. Hunt, 3 B. & A. 566, 577. 1 Phill. Ev. 477. See also Redford v. Burley, 3 Stark. N. P. C. 87, 88, 91. (t) 2 Stark. N. P. C. 137. Lord Ellenborough, in giving his opinion on this point, cited a case from recollection, where a butler to a banker at Malton had been taken up upon suspicion of having committed a great robbery; the prisoner had been seen near the privy, and this circumstance having excited suspicion in the minds of the counsel, who considered the case during the assizes at York; at their instance, search was made, and in the privy all the plate was found, the plate was produced, and the prisoner VOL. III. was in consequence convicted; he had (u) 24 How. St. Tr. 452. (v) Rex v. Hevey, 1 Leach, 237. See (w) Huet's case, 2 Leach, 820. ୯୯ house after his apprehension. Writings found in prisoner's pos session, though not published, may be read if relevant to the charge in the indictment. in the lodgings of a conspirator at a period subsequent to the apprehension of the prisoner might be read in evidence, although no absolute proof was given of their previous existence, where strong presumption existed that the lodgings had not been entered by any one in the interval between the apprehension and the finding, and where the papers were intimately connected with the objects of the conspiracy as detailed in evidence. (y) Writings found in the prisoner's possession, but not published, if plainly connected with the treasonable design charged, are evidence of such design upon an indictment for treason, though not published. (2) But it seems that, if it be doubtful whether they are so connected, they are not admissible. (a) In Watson's case, one of the objections made to the admission of a paper found in the house of a co-conspirator was, that there was no proof that it had been published; and Sidney's case was cited: but the Court distinguished that case from the present, and Abbott, J., said that he had always understood the ground of objection in Sidney's case was, not that the papers had never been published, but that they had no relation to the treasonable practices charged in the indictment, and he referred to 1 East's P. C. 119, where it is said, writings plainly applicable to some treasonable design in contemplation are clear and satisfactory evidence of such design, although not published.' If, say Mr. J. Foster and Mr. J. Blackstone, the papers found in Sidney's closet had been plainly relative to the other treasonable practices charged in the indictment, they might have been read in evidence against him.' That was the objection which had constantly been made to the reception of the evidence in Sidney's case. The paper there was not only an unpublished paper, but appeared to have been composed several years before the crime charged to have been committed. (b) So where on a trial for murder committed by the explosion of grenades, it appeared that the grenades had been ordered by Allsop, and, after the apprehension of the prisoner, a letter was found in the prisoner's house, which was in the handwriting of Allsop, and bore a memorandum in the handwriting of the prisoner. It was held that the letter was admissible. It must be assumed to have been in the prisoner's possession, and it must be admitted, not on the ground that the writer of it was a co-conspirator with the prisoner, but on the ground that it was in the prisoner's possession, and that its contents were relevant to the present inquiry. (c) But where on an indictment for fitting out a ship to (y) A letter found upon the prisoner may be read, but it is no evidence of the facts it states. Thus on an indictment against a person employed in the postoffice for secreting a letter containing a bill of exchange, the contents of the letter, which was found upon him, were held inadmissible to prove that the bill was enclosed in it. Rex v. Plumer, R. & R. 264. (z) Rex v. Watson, 2 Stark. N. P. C. 141. (a) Ibid. (b) 2 Stark. N. P. C. 147. (c) Reg. v. Bernard, 1 F. & F. 240, Lord Campbell, C. J., Pollock, C. B., Erle, J., and Cresswell, J. The letter alluded to the assassination of the Emperor of the French. But where two prisoners lodged together, and a portmanteau was found in their lodgings, which Rehden said was Hare's, and the prosecutor's invoice of the stolen shawls was found in it, and also a paper folded in the shape of a letter, and indorsed in Rehden's handwriting, J. Rehden, private,' and inside this was an inventory of the shawls that had been pawned, but this was not in Rehden's handwriting; it was held that this inventory was not admissible; for non constat that the words 'private' and the prisoner's name might |