common law, as it was slowly developed by the judicial interpretation and recognition of feudal principles and customs.

The extreme technicality of the common law regarding the ownership of real property, and the framing of pleading in an action, is well known. Hence it need occasion no surprise that when the rules of legal evidence began to be formulated in connection with the development of modern social and commercial progress, they were based upon arbitrary principles and infected with the prejudices and superstitions of a rude and unlettered age.

So we find at various periods this branch of the law has been influenced and acted upon by such arbitrary and barbarous conceptions as that a man would lie if permitted to testify for himself, or that truth could be accurately ascertained by the employment of physical torture inflicted on the accused, or by compelling him to submit to a cruel ordeal. But the advance of scientific, commercial and political ideas, with the progress of modern ideas bringing about legal reforms, has had a most important re-action upon the law of evidence. That law is no longer harsh, technical and irresponsive to the demands of progressive civilization, but adaptable to the needs of an age in which considerations of simplicity and justice are paramount to forms and precedents, and when the demand is not only for logical development and coherence, but for flexibility to new uses and needs and economy and speed in administration.

Hence, at the present day, the sole tests which should be applied to ascertain the utility of a rule of evidence are, first, does it, while admitting all facts which bear upon the issue, tend to shorten or simplify legal proceedings; and second, is it calculated to render this evidence more valuable by making it more cogent and trustworthy.

§ 2. Evidence defined. The word "evidence" having been so frequently defined, it is unnecessary for the author to attempt another definition, though it may be of use to ascertain what elements these definitions have in common, and what idea is conveyed by all of them. It will be seen that they agree that legal evidence is only a means to an end, and that this end is the ascertainment of truth in the clearest and most speedy manner.

The truth of any statement of fact, when ascertained, is said to be proved; or, when mathematical truth is concerned, the word "demonstration" is used, which excludes all possibility of the existence of error.1

In the conduct of our every-day affairs we cannot expect, and hence have no right to insist upon, a demonstration of the truth of every statement of fact that is made. We must be content with evidence that will convince us beyond a reasonable doubt and render it easier to believe that a given proposition is probably true.'

Cumulative evidence means additional evidence of the same character to support the same point as other evidence already given.1

Corroborative evidence is additional evidence proving similar facts, or facts calculated to produce the same result as facts already given in evidence.

Partial evidence is evidence of one fact in a series which tends to prove the fact in issue."

11 Greenl. on Ev., § 13.

2 Facts are the sources or materials of evidence; evidence is the medium by which facts are present." Bouv. Law Dict.

3" Evidence means and includes, first, all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence. Second, all documents produced for the inspection of the court; such documents are called documentary evidence." Indian Evidence Act, § 3. "Evidence means, first, statements made by witnesses in court under a legal sanction in relation to matters of fact; such statements are called oral evidence. Second, documents produced for the inspection of the court or judge; such documents are called documentary evidence." Stephen, Digest of Evidence, art. 1.

"The word 'evidence,' in legal ac

ceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved." Greenleaf on Evidence, § 1.

"Evidence includes the reproduction before the determining tribunal of the admission of parties and of facts relevant to the issue. Evidence is adduced only by the parties through witnesses, documents or inspection." Wharton on Evidence, § 3.

The word "evidence," considered in relation to law, includes all the legal means, exclusive of mere argument, which tend "to prove or disprove any matter of fact the truth of which is submitted to judicial investigation." Taylor on Evidence, § 1 (Text-book Series).

4 People v. Supervisors, 10 Wend. 293; Guyot v. Butts, 4 id. 582; Parker v. Hardy, 24 Pick. 246, 248.

5 McCarney v. People, 83 N. Y. 408, 414, 415.

§ 3. Basis of belief. It is a truism to say that most of the knowledge which is possessed by any individual is derived from information imparted by others. So we must recognize the truth that the disposition to believe, or, in other words, to rely upon what others tell us, is inherent in humanity until, by repeated acts of deception practiced upon us, we become incredulous and learn to distrust the statements of other men.

Thus at a comparatively early period in life we learn by experience of the falsehoods uttered in our hearing that an urgent necessity exists for the use of rules and principles by which the truth of what is said may be separated from that which is false.

In the first place, the probability of any new fact with which we become acquainted constitutes a strong, although not the sole, ground for a belief in its truth. If the new fact is consistent with others which we already know or believe to be true, less evidence, or evidence of a less satisfactory character, is required to convince us of its truth than where the new fact is wholly unlike anything in our experience.

The confirmation of the truth of any new fact by knowledge already possessed will vary in proportion to the nature of the fact communicated and the situation of the individual. Thus a statement involving a new scientific discovery, as, for example, that oral communication can be had by the telephone between persons hundreds of miles apart, will be regarded as extremely probable or as utterly absurd according as it is made to a well-educated man or to an illiterate savage.

So, though the direct evidence of a witness is uncontradicted, the jury may refuse to believe it, if from its inconsistency and improbability they conclude that it is false.1

Though we may have been repeatedly deceived by the misrepresentations of others, we find by experience that men, as a rule, tell the truth. Where neither prejudice nor passion exists, and where an individual has no private interests to advance by distorting truth, we may rely upon the credibility of his testimony, if we believe him to be a man of intelligence, possessing adequate powers and opportunity for acquir

1 Hawkins v. Sauby, 48 Minn. 69; 50 N.,W. Rep. 1015; Anderson v. Lil

jengren (Minn., 1892), 52 id. 219. See 1 Greenl. on Ev., §§ 7-11.

ing knowledge. But where the testimony of persons, such as police and private detectives and others engaged in the detection of crime, or expert witnesses who are under pay,1 who from character or position are inclined to take prejudiced or distorted views is involved, it will require a high degree of evidence to satisfy the mind of an impartial hearer.2

Again, the well-recognized connection often observed between collateral or subordinate facts which are proved or admitted and the main fact in issue frequently furnishes most cogent and satisfactory proof of the existence of the latter. This is only applying to the law of evidence the principles of inductive reasoning, which are used, often unconsciously, by all men in the conduct of their most trivial as well as of their most important affairs. It furnishes a basis for the division of evidence into direct and circumstantial, while on the other hand, by permitting the jury in a cause to draw inferences or presumptions from the facts, it has opened the door for the creation of presumptions of law.

Another incident affecting the credibility of evidence is found in the frequent occurrence of undesigned coincidences, which, though sometimes startling and unexpected, are unaccountable except upon the hypothesis that the narrative of which they are a part is true. No event stands alone. It is the result of others which preceded it. It may in its turn be the fruitful cause of many others which follow or relate to it. So every fact or circumstance is connected with others of a collateral nature, rendering it well nigh impossible for one to concoct a narrative which on comparison with other and related circumstances will stand the test. Even by compar

ing the various parts of the story, a mind trained in the habit of investigation may quickly ascertain the truth or falsehood; for in such a case the fabrication, however skilfully constructed, will crumble to pieces by reason of its inherent lack of verity.

1 "Skilled witnesses come with such a bias on their minds to support the cause in which they are embarked that hardly any weight should be given to their evidence.” In re Tracy, 10 Cl. & F. 191. See post, § 188.

2 Cen. R. Co. v. Attaway (Ga., 1893), 16 S. E. Rep. 956.

3 United States v. Ybanez, 53 Fed. Rep. 536.

41 Greenl. on Ev., §§ 9, 12.

5 In Fife, Jones & Stewart v. Com.,

§ 4. Direct and circumstantial evidence distinguished.— By direct evidence is meant evidence of such facts as constitute the actual and present subject of the judicial investigation; in other words, of those facts which are directly in issue between the parties. To say that the evidence is direct is equivalent to declaring that what the witness testifies to as having seen or heard is the fact or facts which are affirmed and controverted by the parties. In such a case the evidence has a direct and uninterrupted bearing and application to the facts to be proved. But where the facts seen or heard by the witness have, when shown, no direct bearing on the facts in issue, but require a course of reasoning or inference before their application to the latter can be apprehended, or before the truth or falsity of the latter facts can be presumed, the evidence is circumstantial.1

So where the dead body of defendant's wife is found with her throat cut in a manner which could not have been selfinflicted, and it is shown that defendant was seen in her company the evening previous; that near the body was found a razor, a walking-stick that defendant admitted was his, and a cuff button; that defendant's razor was missing; that the cuff button matched one in his possession, and that he had abandoned his wife, accusing her of infidelity, a chain of circumstances is forged leading irresistibly to the conclusion that he murdered her.2

Whether the evidence be direct or circumstantial, the truthfulness of the witness may be presumed by the jury; but in the latter case a further presumption is made, and the exist