charged in the indictment. R. v. Francis, L. R. 2 C. C. R. 123: 43 L. J. (M. C.) 97; 12 Cox, 612: R. v. Rhodes [1899] 1 Q. B. 77, 83: R. v. Stenson, 12 Cox, 111: R. v. Cooper, 1 Q. B. D. 19; 45 L. J. (M. C.) 15; 13 Cox, 123. And on this ground it was held, that on an indictment for attempting to obtain money by falsely pretending that a ring was composed of diamonds, which in fact was composed of crystals, evidence was admissible of a false pretence by the defendant on a prior occasion to another person that a chain was gold, whereas it was plated, and on another distinct prior occasion that a ring was of diamonds, which it was not. R. v. Francis, ubi supra. On a charge of obtaining goods by a false pretence, evidence of the defendant's obtaining, within a week after the offence charged in the indictment, other goods from a different person by a similar false pretence was held inadmissible in R. v. Holt, Bell, 280; 30 L. J. (M. C.) 11; 8 Cox, 411. "The question in R. v. Holt was whether the prisoner had the authority or not which he said he had. The picce of evidence there objected to seems to me to be quite immaterial on that point, and how the reception of a perfectly immaterial piece of evidence caused the court to quash the conviction I cannot understand." R. v. Francis, 43 L. J. (M. Č.) 99, Blackburn, J. But the other false pretences, to be admissible in evidence, must not be isolated and distinct transactions, but must have some nexus or connection with the offence charged, e.g., as showing part of a scheme for carrying on a bogus business. R. v. Rhodes, ubi supra. In that case R. v. Holt was distinguished as dealing with totally distinct pretences.

R. v. Francis and R. v. Rhodes were followed in R. v. Wyatt [1904] 1 K. B. 188; 68 J. P. Rep. 31 (C. C. R.), where the defendant was charged with obtaining credit by fraud (32 & 33 Vict. c. 62, s. 13). The evidence was to the effect that he had obtained board and lodging and had not paid. The court held evidence admissible that he had shortly before obtained lodgings at other places and had left without pay as tending to establish a systematic course of conduct on the part of the accused, and as negativing any accident or mistake, or the existence of any reasonable or honest motive.

In R. v. Ollis [1900] 2 Q. B. 758; 67 L. J. Q. B. 918; 19 Cox, 554, an indictment for obtaining money by falsely pretending that certain cheques given by the prisoner was a good and valid order for the payment of money, it was held by Russell, L.C.J., Wright, Darling, and Channell, JJ., that to prove guilty knowledge evidence was admissible to prove that the prisoner had given the prosecutor in exchange for a cheque of the latter another cheque which was dishonoured on presentation notwithstanding that the prisoner had already been indicted and acquitted on a charge of fraud in respect of this last cheque. Bruce and Ridley, JJ., dissented.

Forgery.]-Upon an indictment for disposing of and putting away a forged bank-note, knowing it to be forged, the prosecutor may give evidence (See R. v. Millard, R. & R. 245) of other forged notes having been uttered by the prisoner at other times, before or after the commission of the offence for which he is indicted; R. v. Wylie, 1 B. & P.(N. R.) 93; S. C. sub nom. R. v. Whiley, 2 Leach, 983; R. v. Tattersal, 1 B. & P. (N. R.) 93, cit.: R. v. Ball, R. & R. 132; 1 Camp. 324; 10 R. R. 695; 1 Den., p. iv. ; or that he had in his possession other forged notes of the same kind; R. v. Hough, R. & R. 120; or it would seem, of a different kind, Bayley on Bills, 450; in order to prove, or at least to raise a presumption of, his knowledge that the note in question was forged. So also, upon an indictment for uttering a forged bill of exchange, guilty knowledge may be proved by showing that the prisoner has at different times uttered

other bills forged in other names. R. v. Salt, 3 F. & F. 834. See also R. v. Colclough, 15 Cox, 92; 10 L. R. Ir. 241), as to the sufficiency of the proof of the other utterings, not the subject of the indictment, but offered in evidence to prove guilty knowledge.

Larceny.]-Where the prisoner was indicted under 7 & 8 G. 4, c. 29, s. 37 (rep.), in one count, for stealing coal from the mine of G. and from the mines of thirty other coal owners, and it appeared that the prisoner was himself the lessee of coal, and had carried workings from his own mine into the beds of forty different coal owners, from all of which he had got coal without their sanction, Erle, J., before whom the case was tried, thought it better that the attention of the jury should be confined to the charge of taking the coal of one owner, G.; but in order to show that when the prisoner took G.'s coal he knew he was out of his boundary, the learned judge permitted it to be proved that the prisoner had gone out of his boundary in many other instances, and into the property of many other persons, taking in all 15,000 yards of coal. R. v. Bleasdale, 2 C. & K. 765. And where, upon the trial of an indictment for larceny, it appears that the property alleged in such indictment to have been stolen at one time was taken at different times, although the prosecution may be called upon under 24 & 25 Vict. c. 96, s. 6, to elect upon which takings they will proceed, evidence may be given of takings other than those upon which they elect to proceed, in order to show guilty knowledge, and the felonious nature of the takings proceeded upon. R. v. Firth, L. R. 1 C. C. R. 172; 38 L. J. (M. C.) 54.

Libel.]-On this see R. v. Pearce, ante, p. 303, R. v. Whiley, ante, p. 311.

Receiving]-The cases and statutes as to evidence on a charge of receiving are given post, Book II. Part I. sect. 1, tit. "Receiving."

Threatening letters.]-On an indictment for sending a threatening letter, prior and subsequent letters from the prisoner to the party threatened may be given in evidence, as explanatory of the meaning and intent of the particular letter upon which the indictment is framed, R. v. Robinson, 2 Leach, 749, if the intent cannot be inferred from the letter itself. R. v. Boucher, 4 C. & P. 562.

Matter of defence, etc.]-Matter of defence, when given in evidence under the general issue (see ante, p. 179), is proved by parol evidence, or by records or other written evidence, according to the rules laid down in the next chapter; when pleaded, and put in issue by the replication, it is also proved in the same manner, subject to the same rules as to variance, as indictments (ante, p. 296, et seq.).

Upon an indictment for a rape, the defendant may give general evidence of the woman's character for want of chastity (or that she is a common prostitute, per Stephen, J., in R. v. Riley, infra), or he may prove that she had before been criminally connected with him; R. v. Riley, 18 Q. B. D. 481; 56 L. J. (M. C.) 52: R. v. Martin, 6 C. & P. 562, and n.; but not that she had been criminally connected with others; R. v. Holmes, L. R. 1 C. C. R. 334; 41 L. J. (M. C.) 12; R. v. Cockcroft, 11 Cox, 410, per Martin, B., and Willes, J. (overruling R. v. Robins, 2 M. & Rob. 512): R. v. Hodgson, R. & R. 211. And the same upon an indictment for an assault with intent to commit a rape; R. v. Clarke, 2 Stark. (N. P.) 241; or for an indecent assault. R. v. Holmes, ubi supra. See R. v. Barker, 3 C. & P. 589. Upon an indictment for libel, the defendant has been allowed to give in evidence such other parts of the same publication as

were fairly connected with the libel in question, and upon the same topic, in order to disprove the motive imputed to him by the indictment, and to show the fair construction that should be put upon the passages therein set out. R. v. Lambert, 31 St. Tr. 335; 2 Camp. 398; 11 R. R.748. And in R. v. Horne Tooke, 25 St. Tr. 1,345; 1 East, P. C. 61, 62, it being proved on the part of the prosecution that the defendant had distributed several publications advocating republican principles, which was offered in evidence, in order to produce a presumption that parliamentary reform (which was expected to be set up by the prisoner in his defence) was a mere pretext to cover his treasonable purposes, the defendant, in order to rebut that presumption, was allowed to give in evidence a book upon parliamentary reform, written by him, and published twelve years before.

Character. The prisoner also will be allowed to call witnesses to speak generally as to his character, but not to give evidence of particular acts, unless it tends directly to the disproof of some of the facts put in issue by the pleadings. Evidence of the defendant's character can be of avail only in doubtful cases; where the probabilities of the defendant's guilt on the one side, and the probabilities of his innocence on the other, are nearly equal, satisfactory testimony as to his general good character for honesty or humanity may have the effect of raising a well-founded presumption in the minds of the jurors that a man of such character could not have been the perpetrator of the offence imputed to him; and in this sense it may be deemed evidence tending to the disproof of the matter in issue. The proper time for calling witnesses to character is before verdict and not after verdict in mitigation of sentence. R. v. Mullins, 3 Cox, 526; 7 St. Tr., N. S. 1110. A witness to character will not be allowed to speak to his own opinion of the prisoner's disposition, but only as to the general reputation in which the prisoner is held. R. v. Rowton, L. & C. 520; 34 L. J. (M. C.) 57. Thus a witness to character for a defendant indicted for perjury has been asked, "Do you consider him a man who would be likely to commit perjury?" R. v. Hemp, 5 C. & P. 468, Denman, L.C.J.: sed quære. Witnesses called by the prisoner as to character may be cross-examined either as to particular facts, R. v. Hodgkiss, 7 C. & P. 298, or as to the grounds of their belief. 1 Taylor, Ev. (9th ed.) 250. But it has been held that such a witness cannot be crossexamined as to circumstances of suspicion against the accused arising on the day of the alleged offence. R. v. Rogan, 1 Cox, 291, Erle, J. General evidence of good character may also be rebutted by general evidence of bad character. R. v. Rowton, ubi supra. And if the prisoner endeavours to establish a good character, either by calling witnesses himself, or by cross-examining the witnesses for the prosecution, the prosecution is at liberty, in most cases, to give proof of the prisoner's previous conviction. R. v. Gadbury, 8 C. & P. 676: R. v. Shrimpton, 2 Den. 219; 21 L. J. (M. C.) 37. As to mode of proof, see 28 & 29 Vict. c. 18, s. 6, and 34 & 35 Vict. c. 112, s. 18. And where he is himself called as a witness he may be crossexamined as to his character or previous offences, charges, or convictions, if the proof that he has committed or been convicted of another offence is admissible to prove that he is guilty of the offence charged, if he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his good character, or has given evidence of his good character, or if the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or he has given evidence against any other person charged with the same offence. 61 & 62 Vict. c. 36, s. 1 (ƒ) (ii.), (iii.), post, p. 395). The same course may be adopted if proof of the commission or

conviction of another offence is admissible evidence to show that he is guilty of the offence charged, ante, pp. 306-312. And apparently the previous convictions can now be put under 28 & 29 Vict. c. 18, s. 6 (post, p. 404).

The several cases just mentioned, when carefully considered, will be found to be not exceptions to, but rather illustrations of, the rule above mentioned (ante, p. 306), namely, that nothing may be given in evidence which does not tend directly to the proof or disproof of the matter in issue. In most of them, the evidence admitted tended directly to the proof of the knowledge or intention of the defendant at the time of the commission of the offence, which was a material ingredient in the crime imputed (ante, p. 308). In the case of rape above mentioned (ante, p. 312) the evidence tended to show the great improbability of any resistance upon the part of the woman, and also that the woman was not entitled to credit as a witness.

CHAPTER II.

THE MANNER OF PROVING THE MATTERS PUT IN ISSUE.

SECT. 1. Preliminary Matters, p. 315.

2. Admissions and Confessions, p. 325.

3. Presumptions, p. 339.

4. Written Evidence, p. 344.

5. Parol Evidence, p. 385.

SECT. 1.

PRELIMINARY MATTERS.

EVIDENCE may be classed under three heads: (1) admissions or confessions, (2) presumptions, and (3) proofs. These we shall consider fully in the several sections of this chapter. But before we enter into a particular consideration of the subject, it may be necessary first to notice one or two rules relating to evidence generally. Generally speaking, at common law the rules of evidence in criminal cases are the same as in civil cases. R. v. Burdett, 1 St. Tr., N. S. 1; 3 B. & Ald. 717; subject to certain specific statutory modifications, and to the rule of practice that more evidence is required to justify conviction of crime than a verdict for the plaintiff in a civil action for trespass arising out of the same circumstances. See R. v. White, 4 F. & F. 383, and note, and see post, p. 339," Presumptions."

Primary evidence.]-First, it is a general rule, that the best evidence of which the nature of the case will admit must be produced, if it can possibly be obtained; if not, then the next best evidence that can be obtained is admitted. This means that, as a general rule, where a written document is to be used as proof, the original document must be itself produced, and where a fact can be proved by persons who actually saw or heard it they must be called (but see post, p. 317). For if it appears that there is any better evidence existing than that which is produced, the non-production of it creates a presumption that, if produced, it would have detected some falsehood which at present is concealed. 3 Bl. Com. 368; Gilb. Ev. 16; 1 Taylor Ev. (9th ed.), 277-282: R. v. James, 1 Show. 397; Carth. 220; cas. temp. Holt, 284: R. v. Paine, 1 Salk. 281; 1 Ld. Raym. 729: Williams v. H. E. Ï. Co., 3 East, 192; 6 R. R. 589. Therefore, before secondary evidence is offered, a foundation for it must first be laid, by proving that evidence at first hand cannot be obtained. The best evidence of the contents of a deed or other written instrument is the written instrument itself; secondary evidence is a true copy, or parol evidence of the contents, of the original. Therefore, before a copy of a written instrument, or parol evidence of its contents, can be received as proof, the absence of the original instrument must be accounted for, by proving that it is lost or destroyed, or that it is in possession of the opposite party. Thus, where it is sought to give in evidence the contents of a telegram sent by the prisoner to a witness, it is necessary that the original message handed to the post office should be produced, and the copy received by the witness cannot be given in evidence unless it is proved that such original has