of them to another overt act of the same treason. If two or more distinct treasons of divers heads or kinds are alleged in one indictment, one witness produced to prove one of the said treasons and another witness produced to prove another of the said treasons are not to be deemed to be two witnesses to the same treason within the meaning of this article. (a)

This provision does not apply to cases of high treason in compassing or imagining the Queen's death, in which the overt act or overt acts of such treason alleged in the indictment are assassination or killing of the Queen, or any direct attempt against her life, or any direct attempt against her person, whereby her life may be endangered or her person suffer bodily harm, (b) or to misprision of such treason.

If upon a trial for perjury the only evidence against the defendant is the oath of one witness. contradicting the oath on which perjury is assigned, and if no circumstances are proved which corroborate such witness, the defendant is entitled to be acquitted. (c)

NUMBER OF WITNESSES.

General Rules.

The number of witnesses is sometimes limited by rules of court. Hoskins v. Northern Pac. R. Co., 39 Mont. 394, 102 P. 988; Brady v. Shirley, 18 S. D. 608, 101 N. W. 886.

(a) 7 & 8 Will. III. c. 3, ss. 2, 4; [3 Wigmore Ev., § 2036 et seq.].

(b) 39 & 40 Geo. III. c. 93.

(c) 3 Russ. on Crimes, 77-88; [3 Wigmore Ev., §§ 2040

California. A preponderance of evidence does not necessarily mean a preponderance of the number of witnesses. -Grant v. McPherson, 104 Cal. 165, 37 P. 864.

Colorado. The court may limit the number of experts that may be called upon the trial.-Huett v. Clark, 4 Colo. App. 231, 35 P. 671.

It is within the discretion of the trial court to limit the number of witnesses who may be allowed to testify upon a given point.-Outcalt v. Johnston, 9 Colo. App. 519, 49 P. 1058.

Kansas. Every person who is a party to an action, and not incompetent to testify, has a right, in protection of his interests, to be heard as a witness as to what he has seen and knows of the principal matter in controversy; and the court may not, by limiting the number of witnesses on a side, deprive him of that right.-Fisher v. Conway, 21 Kan. 18.

Montana. The jury are not bound to regard the weight of the evidence as preponderating in favor of the party who produces the greater number of witnesses.-Lehane v. Butte Elec. Ry. Co., 37 Mont. 564, 97 P. 1038.

Nebraska. A preponderance of evidence is not determined alone by the number of witnesses testifying to a particular fact. In determining upon which side the evidence preponderates, the credibility of the witnesses, their situation, interest, means of knowledge, and manner of testifying, should be considered.-Fitzgerald v. Richardson, 30 Neb. 365, 46 N. W. 615; Buck v. Hogeboom, 2 Neb. (Unof.) 853, 90 N. W. 635.

A jury is not required to decide a disputed proposition of fact merely by a count of witnesses, but should determine which are the most worthy of credit; and where the evidence is conflicting, a verdict based upon the testimony of the minority of the witnesses will not be disturbed, unless it is manifestly wrong.-Howell Lumber Co. v. Campbell, 38 Neb. 567, 57 N. W. 383.

A trial court may limit the number of witnesses that may be called to prove facts collateral to the main issue. --Biester v. State, 65 Neb. 276, 91 N. W. 416.

Where the evidence is conflicting, it is within the province of the jury sitting at the trial to consider all proved physical facts and conditions attending the main fact for the purpose of arriving at the true solution of the question presented. They are not bound by the number of witnesses testifying if in the exercise of reasonable judgment they are convinced that the truth is shown by the side producing the smaller number of witnesses.-Hoskovec v. Omaha Street Ry. Co., 85 Neb. 295, 123 N. W. 305. Texas. The proposition that where witnesses are equal in credibility the greatest number must prevail is untenable.-Jones v. State, 13 Tex. 168, 62 Am. Dec. 550.

Evidence is not weighed by the number but by the credibility of the witnesses, and the probable truth of their testimony.-International & G. N. R. Co. v. Poloma, (Tex. Civ. App.), 123 S. W. 1149.

Washington. An instruction that the number of witnesses might control where they are all of the same candor, fairness, intelligence, truthfulness, and equally corroborated by other evidence, held not to have misled the jury.Northern Pac. R. Co. v. Holmes, 3 Wash. Ter. 543, 18 P. 76. In Prosecutions For Perjury.

Arkansas. Perjury cannot be established by proof of defendant's contradictory statements alone, or by his admissions. State v. Binkley, 123 Ark. 240, 185 S. W. 279. California. In a prosecution for perjury in falsely testifying that witness met a certain cow at a particular place upon the highway at 8 o'clock one morning, it is necessary to produce the positive testimony of at least one witness that such meeting did not take place, as that the defendant was not at that time at that place, or that the cow was not there.-People v. Wells, 103 Cal. 631, 37 P. 529.

Kentucky. To convict for perjury it is sufficient either that there are two witnesses, or that the testimony of the one witness is corroborated or sustained by other facts appearing in the case or testified to by other witnesses. -Williams v. Commonwealth, 24 Ky. Law Rep. 465, 68 S. W. 871.

Mississippi. The state must prove by two witnesses, or by one witness and corroborating circumstances beyond

reasonable doubt that defendant was not present at the place and time of an assault as testified to by him on the trial in which he was a witness.-Whittle v. State, 79 Miss. 327, 30 So. 722; accord: Lee v. State, 105 Miss. 539, 62 So. 360.

Missouri. A conviction for perjury will not be sustained upon the evidence of a single uncorroborated witness, but it is now held in this state and generally in the courts of other states, that any facts or circumstances which are strongly corroborative of the accusing witness will be sufficient. State v. Blize, 111 Mo. 464, 20 S. W. 210; State v. Faulkner, 175 Mo. 546, 75 S. W. 116.

Oklahoma. In a prosecution for perjury, the falsity of the defendant's evidence may be established by circumstantial evidence, but the facts constituting such circumstantial evidence must be directly and positively sworn to by at least one credible witness, supported by corroborating evidence, and, taken as a whole must be of such a conclusive character as to exclude every other reasonable hypothesis except that of the defendant's guilt.Metcalf, ex parte, 8 Okl. Cr. 605, 129 P. 675.

Texas. To convict of perjury there must be the direct testimony of two witnesses or of one witness strongly corroborated.-Brookin v. State, 27 Tex. App. 701, 11 S. W. 645; Reed v. State, (Tex. Cr. R.), 183 S. W. 1168. Washington. Corroboration held sufficient on the facts. -State v. Miller, 80 Wash. 75, 141 P. 293.

NOTE XXXIX.

(To Chapter XV.)

The law as to the competency of witnesses was formerly the most, or nearly the most, important and extensive branch of the Law of Evidence. Indeed, rules as to the incompetency of witnesses, as to the proof of documents, and as to the proof of some particular issues, are nearly the only rules of evidence treated of in the older authorities. Great part of Bentham's "Rationale of Judicial Evidence" is directed to an exposure of the fundamentally erroneous nature of the theory upon which these rules were founded; and his attack upon them has met with a success so nearly complete that it has itself become obsolete. The history of the subject is to be found in Mr. Best's work, book i. part i. ch. ii. ss. 132-188. See, too, T. E. 1210-1257, and R. N. P. 177-181. As to the old law, see 1 Ph. Ev. 1-104.

CHAPTER XVI.

OF TAKING ORAL EVIDENCE, AND OF THE EXAMINATION OF WITNESSES.

ARTICLE 123.

EVIDENCE TO BE UPON OATH, EXCEPT IN CERTAIN CASES.

All oral evidence given in any proceeding must be given upon oath, but if any person called as a witness refuses or is unwilling to be sworn from alleged conscientious motives, the judge before whom the evidence is to be taken may, upon being satisfied of the sincerity of such objection, permit such person, instead of being sworn, to make his or her solemn affirmation and declaration in the following words:

"I, A B, do solemnly, sincerely, and truly affirm and declare that the taking of any oath is according to my religious belief unlawful, and I do also solemnly, sincerely, and truly affirm and declare," etc. (a)

(b) If any person called to give evidence in any Court of Justice, whether in a civil or criminal proceeding, objects to take an oath, or is objected to as incompetent to take such an oath, such person must, if the presiding judge is satisfied that

(a) 17 & 18 Vict. c. 125, s. 20 (civil cases); 24 & 25 Vict. c. 66 (criminal cases). [3 Wigmore Ev., § 1818.]

(b) 32 & 33 Vict. c. 68, s. 4; 33 & 34 Vict. c. 49. I omit special provisions as to Quakers, Moravians, and Separatists, as the enactments mentioned above include all cases. The statutes are referred to in T. E. s. 1254; R. N. P. 175-176.