The General Principles of the Law of Evidence: In Their Application to the Trial of Criminal Cases at Common Law and Under the Criminal Codes of Several States

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Lawyers Co-operative Publishing Company, 1894 - 979 sider

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CHAPTER V
41
Foundation for Secondary Evidence
42
Relaxation of the Rule in Certain Cases
44
Notice to Produce
45
CHAPTER VI
48
Public Documents in Evidence
50
a Examined Copy
52
The Rule in California
53
The Rule in New York
54
e Rule in United States Courts
55
Refreshing Memory by the Use of
56
a Private Accounts and Documents Obtained by Seizure
58
Parol Evidence as Affecting
62
CHAPTER VII
64
Evidence Confined to the point in Issue
66
Relevancy how Determined
69
The Attributes of Relevancy
70
Offer of Proof
72
Indecency no Ground for Excluding Relevant Testimony
74
CHAPTER VIII
79
Importance of Letters
80
Foundation for Secondary Evidence of Contents
81
Mailing Letters Raises the Presumption of Receiving
82
Genuineness must be shown
83
Unanswered Letters
84
Extract from a Lost Letter
85
CHAPTER IX
88
Original Message the Primary Evidence
89
Views of Different Courts
90
b Of Alabama Supreme Court
91
Of the United States Circuit Court
92
Presumptions as to Telegrams
94
Secondary Evidence of Contents
95
CHAPTER X
96
Memoranda of Party Since Deceased
97
Views of the United States Supreme Court
98
Statement of the English Rule
100
Restrictions of the General Rule
101
Recent Cases Examined
102
The Formula Deduced
107
CHAPTER XI
109
Rule as to Proof by Comparison in Different States
110
Rule in New York
111
Rule in Alabama Ohio and South Carolina
112
Miscellaneous Authorities Examined
114
Views of Mr Wills
116
CHAPTER XII
118
Statutory Instances of its Relevancy
119
Must in all Instances be Direct
121
CHAPTER XIII
122
a Difficulty in Determining what is
125
What Evidence is Competent in Proof
126
The Rule in Roscoe
127
Perplexing Nature of the Proof of
128
b Michigan Case
130
A New York Case
131
CHAPTER XIV
133
When the Rule in Civil Cases does not apply
136
CHAPTER XV
138
Jury as Judges of the Law and the Fact
139
Decisions Considered
140
Plea of Not Guilty Raises a Question of Fact
142
CHAPTER XVI
144
Not Read in Arguinent to Jury
146
Views of Mr Moak
147
Exception Noted
149
CHAPTER XVII
150
Accuracy of Photograph may be Questioned
151
Photographs of Documents when Admissible
152
CHAPTER XVIII
155
Usual Order of Proof in Criminal Cases
156
Abuse of Discretion as Subject of Review
157
Views of Judge Rosevelt
158
Conditional Reception of Evidence on Promise to Show Rele vancy
159
EVIDENCE NECESSARY TO SECURE A CONTINUANCE Sec 113 Rule the Same as in Civil Cases
162
What Evidence is Necessary to Secure
164
What Motion Papers should Prove
165
CHAPTER XX
167
General Rule of Criminal Pleading Stated
168
Only Material Variance will be Regarded
169
When Variance between Indictment and Proof will Call for Amendment
170
Instances of Immaterial Variance in Name
171
Extended Tabulation of the Cases from Rapaljes Criminal Pro cedure
173
CHAPTER XXI
175
New York Code Provisions
176
Vigorous Opposition to the Views Last Cited
179
CHAPTER XXII
181
Duty of the Respective Counsel in Closing the Case
183
Arguing from Facts not in Evidence
185
CHAPTER XXIII
186
Prominent Features of the Charge
188
The Formula Usually Adopted
189
Mistake how Rectified
192
Instructions must be Regarded in their Entirety
194
Court Cannot Assume any Fact Established when there is Con flict
195
Instructions are Advisory in their Nature
196
Parties may Submit Requests to Charge
197
Instances of Harmless Error
198
Power to Direct a Verdict
199
EVIDENCE OF PREJUDICIAL JURY Sec 147 Accused is Entitled to Fair and Impartial Jury
200
The Test of Competency
201
When the Objection should be Regarded
203
Irregularity of the Grand Jury may be shown
204
Evidence in Support of Verdict
206
CHAPTER XXV
207
An Exception Noted to the Above Rule
208
Evidence of Another Crime if Pertinent to the Issue is Admis sible
216
Rule as to Misdemeanors
217
Evidence of Other Offenses should be Cautiously Admitted
218
Fabrication and Suppression of Evidence
219
What Rules should Govern
223
A Distinction Noted
225
Reconciling Variances
226
Notes and Memoranda in the Jury Room
227
Instructions as to Duty in Weighing Evidence
228
Nature and Scope of the Scintilla Doctrine
229
Statement of the Pennsylvania Rule
232
EVIDENCE ON APPLICATION FOR A NEW TRIAL Sec 170 Preliminary Remarks
234
Prevailing Practice Outlined
235
In what Cases Granted
236
Doctrine of Anarchists Case Stated
237
Conflict in Evidence Ground for
238
Verdict against Weight of Evidence
242
Newly Discovered Evidence
243
Admission of Illegal Evidence as Ground for
244
Statements of Prosecuting Attorney of Matters not in Evidence
245
Failure to Object to the Admission of Improper Evidence no Ground for
248
Doctrine of Invited Error Considered
249
Technical Errors Disregarded in Motion for
250
Misconduct of Jury as Ground for
251
Evidence of Irregularity in the Composition of the Grand Jury
254
PART II
263
CHAPTER XXIX
275
CHAPTER XXX
296
THE EXAMINATION OF WITNESSES Sec 211 Method Discretionary with the Trial Court
319
Strict Mode of Procedure Seldom Pursued
320
Witness must Testify to Facts Within his Knowledge
321
Object of the Examination in Chief
322
Rule as to Leading Questions 323 Sec 217 No Material Fact in Issue can be Assumed on Examination
326
The Crossexamination
329
a Rule as to Hostile Witness
330
b Confined to Relevant Facts
331
When Party Makes Witness his own
332
e Duty of the Court to Protect the Witness
334
f Crossexamination during Absence of the Accused
335
h Views of Sir James Stephen
336
j The English Rule
337
Extent of the Crossexamination
338
When Answer is Conclusive
341
Crossexamination of Defendant in his Own Behalf
342
Testimony of Witness since Deceased Given on Former Trial
345
Testimony of the Accused on his Preliminary Examination
357
Summary of the Views here Stated
358
CHAPTER XXXII
359
Great Latitude Allowed in Crossexamination
360
To what the Attention of the Witness should be Called
361
California Code Provisions on the Subject
362
When the Impeachment is Effected
363
Sec 233 Partial Review of the Decisions
364
When Party may Contradict His Own Witness
368
Statement of the New York Rule
369
Inconsistent Statements may be shown
370
Discrediting Partys own Witness on Ground of Surprise
372
Party may Impeach a Witness he is Compelled to Call
374
Specific Acts of Immorality cannot be shown
375
An Examination of Authorities
376
When Declarations Made out of Court are Admissible
378
CHAPTER XXXIII
379
Exposition of this Subject by New York Court of Appeals
383
a Extreme Importance of the Right
385
New York Criminal Code Provisions Stated
389
Statement of the English and California Rule
394
Examination of Witnesses Conditionally for the Accused
396
EVIDENCE AFFORDED BY THE INDICTMENT Sec 248 What Allegations must be Proved and What may be Suggested
397
Phillips Three Rules Stated
402
Rule Observed in Framing
403
Former Strictness Relaxed
405
Names of Witnesses must be Indorsed upon Indictment
406
Evidence of Time and Place
407
Quashing Indictment Founded on Illegal Evidence Given before the Grand Jury
409
When Evidence Introduced to Sustain Indictment may be Stricken out
414
a Examination of the Principle Affecting this Right to Exclude
415
Prejudice must have Resulted or Incompetent Evidence will Stand
418
When Incompetent Evidence is not Deemed Harmless
419
e When Motion to Strike out must be Made
420
CHAPTER XXXV
421
Where a Fact is Peculiarly within the Knowledge of a Party
425
When Accused must Establish the Defense of Insanity
426
A Prima Facie Case will not Rebut the Presumption of Inno cence
427
Burden of Proof in Statutory Crimes
428
Views of Sir James Stephen
429
CHAPTER XXXVI
431
The Phrase Moral Certainty Examined
435
Observations of Authority on the Term Reasonable Doubt
436
Views of the Missouri Supreme Court
437
Extended Citation of Authorities
439
CHAPTER XXXVII
441
May be Expressed or Implied
442
Burden of Proof as to
443
Legal Significance of the Term Motive
444
Term Motive Defined
445
Collateral Facts in Relation to Motive
446
Any Proof Suggesting Motive is Relevant
447
CHAPTER XXXVIII
465
Full Proof of not Required
466
Cannot be Proved by Uncorroborated Confessions
467
May be shown by Circumstantial Evidence
469
Recent Legislation on the Subject
474
Intent of the Rule Requiring Proof of
479
CHAPTER XXXIX
480
Voice as Evidence of Identity
482
an Telephonic Communications
483
Dress as a Means of Identification
485
Perplexing Nature of this Grade of Evidence
486
CHAPTER XL
488
Confessions must be Voluntary
489
Judge to Decide if Confession is Voluntary
491
If Elicited by Fear or Menace should be Rejected
492
Great Caution Enjoined in Receiving
494
Province of Court and Jury with Reference to
496
Confessions not Conclusive
497
Confessions under Intoxication
498
Confessions Obtained by Improper Influence
499
Demeanor of the Accused when under ArrestEffect of Silence
500
EVIDENCE AFFORDED BY ACCOMPLICES Sec 319 Who is an Accomplice
505
Testimony of Accomplice Competent to Convict 506
506
Corroborative Testimony should by Required
508
Extent of Corroboration is for the Jury
511
Crossexamination of an Accomplice
517
Rights of an Accomplice Giving Evidence for the State 518
518
Rule as to Codefendants who have pleaded Guilty
519
Credibility of Accomplice is for the Jury
522
CHAPTER XLII
527
Admissible only when Death is the Subject of the Charge
529
Not Competent in Cases of Abortion
530
Admitted on Ground of Necessity Alone 532
532
An Exception to the Rule Regarding Hearsay
533
Imminency of Death must be Apparent
534
Infirmities of this Evidence Outlined
535
Accused may Show Want of Belief that Death is at Hand
536
Narratives of Past Occurrences are Inadmissible
538
Illustrations of Extreme Rulings
539
CHAPTER XLIII
544
Test of Sufficiency
546
Direct and Circumstantial Evidence Contrasted
548
What must be Proved to Warrant a Conviction by
549
Instructions from the Court Regarding this Grade of Evidence
551
Great Latitude Allowed in the Reception of
552
Review of the Celebrated Webster Case the Harris Case
553
The Maybrick Case Considered
557
The Stokes Case Considered
559
Rules of Induction Specially Applicable to Circumstantial Evidence
561
The Rule in Civil Actions Having Criminal Attributes
565
EVIDENCE FOR THE DEFENSE
567
CHAPTER XLV
596
EVIDENCE OF FORMER JEOPARDY OR CONVICTION
612
CHAPTER XLVII
620
CHAPTER XLVIII
633
Wide Acceptance of the Rule last Stated
640
New York and Pennsylvania Cases Considered
651
The Guiteau Case Examined
665
Views of Mr Robert Desty
675
CHAPTER XLIX
681
Want of Harmony in the Decisions
683
Burden of Proving with the Defendant
684
Prejudicial Theories Regarding this Defense
685
Shifting Nature of the Burden of Proof
686
Views of Mr Justice Best
687
Miscellaneous Decisions
688
CHAPTER L
690
The Authorities Examined
692
The Rule in Civil Actions for Damages
694
Compulsory Production of Paper
695
PART V
697
CHAPTER LI
699
Must Relate to an Existing Fact
703
Intent to Defraud must be shown
708
Something of Value must be Obtained
711
Evidence of Ability to Repay the Amount Obtained Immaterial
714
Distinction between Larceny and False Pretenses
716
Examination of the English Rule
718
Partial Review of the Authorities
719
CHAPTER LII
722
Distinction between Larceny and False Pretenses still Preserved
723
Felonious Intent must be shown
724
Every Larceny must Include a Trespass
729
Corpus Delicti must be shown
730
What may be shown when Identity is in Question
732
Recent Possession of Stolen Property may be shown
733
Evidence of other similar Offenses
735
Evidence of Value
736
New York Rule as to Name of Party Defrauded
738
EMBEZZLEMENT ROBBERY AND BURGLARY Sec 458 Embezzlement Defined
742
Evidence of other Fraudulent Acts Admissible
743
The Term Robbery Defined
744
Views of Professor Greenleaf
746
The Terms Fear and Violence Considered
747
Description of Property Stolen not Required
748
What the State must Prove
749
Presumptive Evidence of
750
Evidence of Former Attempts
751
Partial Review of Late Decisions
752
CHAPTER LIV
754
When Justifiable
757
Effect and Definition of Provocation
758
Texas Code Provisions on the Subject of Homicide
760
When Causing Death does not Amount to Homicide
762
Intent to Kill is the Essence of the Crime
764
How Death may be Accomplished
765
Evidence of Death by Poisoning
766
Evidence of Blood Stains in Cases of Homicide
767
Evidence should convince Jury beyond Reasonable Doubt
770
Note on Expert Medical Evidence
771
CHAPTER LV
772
What Constitutes an Intent to Defraud
774
What Constitutes Uttering
776
What Evidence is Pertinent
777
Declarations must be considered in their Entirety 1778
778
Burden of Proof is upon Prosecution
779
What State must show in Case of Bill Note Check etc
780
Direct Evidence Seldom Required
784
CHAPTER LVI
788
Two Witnesses Required to Prove
791
Proof Required that Defendant was on Oath
792
Impeaching Evidence always Competent
793
Authorities Considered
794
CHAPTER LVII
799
The Case of Reg v Lumley Examined
800
Rule under the Common Law
801
Views of an Eminent Textwriter
804
Sec 513 First Marriage may be Proved by Confession
805
General Reputation and Cohabitation as Proof of Marriage
806
What must be shown by the Prosecution
807
Legal Wife not a Competent Witness
810
CHAPTER LVIII
812
What must be Shown
816
Reputation of the Prosecutrix for Chastity
818
Complaint of the Outrage may be shown
825
Caution as to the Admission of Uncorroborated Testimuny
830
Utmost Resistance must be shown
831
Presumption as to Infants
832
Evidence of Previous Offenses or Attempts
836
CHAPTER LIX
838
Consanguinity may be Proved by Defendant
841
Previous Acts of Lasciviousness may be shown
842
CHAPTER LX
847
Positive Proof never Required
848
Views of Lord Stowell on the Subject
850
Prior Offenses between the Parties may be Shown
851
Admissions of Marriage Competent
852
Birth of Child as Evidence of
853
Reputation for Chastity may be Shown
854
BASTARDY Sec 542 The Term Bastard Defined
857
Unchaste Conduct of the Mother may be shown
858
When Presumption of Legitimacy will Govern 860
860
Charge may be Sustained by Preponderance of Testimony
861
CHAPTER LXII
867
Previous Chastity of the Woman the Main Issue
870
Distinction between Seduction and Rape
874
Presumption as to Chastity how Rebutted
875
Corroboration Required as to Promise and Intercourse
877
Time not Material
879
CHAPTER LXIII
881
What Constitutes Criminal Libel
882
The Term Publication Defined
883
What the Indictment must Show
884
Outline of Plaintiffs Proofs
885
A Restriction upon Plaintiffs Evidence Noted
887
Malice as an Element Presumptions as to
888
Privileged Communications
889
Rules as to Justification
891
Repetition of a Slander
892
Evidence of Intent Material
893
Fair Criticism Allowed
894
Rules as to Editors and Reporters
896
CHAPTER LXIV
899
One Member of the Confederacy may be Convicted
901
b The Wisconsin Rule
902
Acts
904
When Proof of Conspiracy must First be Shown
905
Rule from the Star Route Case as to Reasonable Doubt
906
Other Sustaining Authorities
908
Rules of Evidence Governing
909
Justified only by Military Necessity
910
Review of the Celebrated Milligan Case
911
Extract from De Harts Military Law
913
Power of these Courts to Originate Evidence
914
Liberal Rules as to Defensive Evidence
915
Recalling Witnesses
916
Partial Review of Miscellaneous Authorities
917
CHAPTER LXVI
920
New York Legislative Enactments Regarding
921
Evidence under United States Revised Statutes
924
Comments upon the Constitutional Provisions
928
Rights of Party Proceeded Against
930
Conduct of Proceedings
931
Evidence by Deposition
932
Hearing on Application for
933
Accused must be Tried for the Offense for which he was Extradited
934
a Distinction in Cases of Interstate Rendition
935
Fugitive may be Surrendered for any Offense
938
Evidence as affected by Treaty Stipulations with Foreign States
939
What Evidence will Authorize an Arrest
940
What the Affidavit should Disclose
942
Evidence in Habeas Corpus Proceedings
943

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Side 432 - It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
Side 50 - That the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form.
Side 886 - A communication made bona fide upon any subject-matter In which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contain criminatory matter, which, without this privilege, would be slanderous and actionable...
Side 886 - ... the law considers such publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.
Side 234 - When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors ; 5.
Side 643 - ... to establish a defense on the ground of insanity, it must be clearly proved, that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing ; or, if he did know it, that he did not know he was doing what was wrong.
Side 939 - The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States...
Side 777 - Comparison of a disputed writing with any writing proved to the satisfaction of the Judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.
Side 316 - ... in the course of professional employment. 3. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.
Side 55 - ... of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State, or Territory, or country, that the said attestation is in due form, and by the proper officers.

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