laboring under the derogatory imputations that a criminal indictment is presumed to transmit. In this immediate connection, it is appropriate to outline the last and greatest distinction that characterizes civil and criminal evidence. The law, in its tender solicitude for the life and liberty of the citizen, seeks to equalize the inequalities between the state and the accused, by conjuring up as a staunch ally of the accused, one who accompanies him. from the moment of apprehension to the moment of conviction, one who is doubly armed with those mighty bulwarks of the criminal law-presumption of innocence and reasonable doubt.

To overcome this presumption, and to dispel this doubt, the prosecution must direct its energy. It must prove every averment of its indictment. It must establish its case by convincing testimony. It must assume the integrity of the accused; and substantiate its position without the aid of his testimony. Through all the mutations of the trial, the burden of proof is with the state. These peculiar characteristics of criminal evidence generate in their turn a hoard of peculiarities that necessitate constant attention in a criminal trial; and the difficulty is, that they assume a varying importance in proportion to the magnitude and heinous. ness of the offense. However, to indicate all of these differences, is the very object of this book; and we refrain from further particularization in this introductory chapter.

§ 3. The Term "Evidence" Defined.-Evidence is the means employed for the purpose of proving an unknown or disputed fact, and is either judicial or extra-judicial. Judicial evidence is that which is used on trials or inquiries before courts, judges, commissioners, referees, etc., while extra-judicial evidence is that which is used to satisfy private persons as to facts requiring proof. Rapalje & Lawrence, Law Dict., title Evidence. Every determination of the judgment, whatever may be its subject, is the result of evidence.

Proof and evidence are constantly used in practice as synonymous, and are sometimes so treated in the books. Properly speaking, however, evidence is only the medium of proof; proof is the effect of evidence. Burrill, Law. Dict., title Proof.

The term "proof" is often confounded with that of "evidence," and applied to denote the medium of proof, whereas in strictness it marks merely the effect of evidence. When the result of evidence is undoubting assent to the certainty of the event or propo

sition which is the subject-matter of inquiry, such event or proposition is said to be proved; and, according to the nature of the evidence on which such conclusion is grounded, it is either known or believed to be true. Our judgments, then, are the consequence of proof; and proof is that quantity of appropriate evidence which produces assurance and certainty; evidence, therefore, differs from proof, as cause from effect. Wills, Circ. Ev. p. 2.

"The term 'evidence' is to be carefully distinguished from its synonyms, 'proof' and 'testimony.' 'Proof' is the logically sufficient reason for assenting to the truth of a proposition advanced. In its judicial sense it is a term of wide import, and comprehends everything that may be adduced at a trial, within the legal rules, for the purpose of producing conviction in the mind of judge or jury, aside from mere argument; that is, everything that has a probative force intrinsically, and not merely as a deduction from, or combination of, original probative facts. But 'evidence' is a narrower term, and includes only such kinds of proof as may be legally presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, records, or other documents. Thus, to urge a presumption of law in support of one's case is adducing proof, but it is not offering evidence. 'Testimony,' again, is a still more restricted term. It properly means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions. Thus, an ancient deed, when offered under proper circumstances, is evidence, but it could not strictly be called 'testimony.' 'Belief' is a subjective condition resulting from proof. It is a conviction of the truth of a proposition, existing in the mind, and induced by persuasion, proof, or argument addressed to the judgment." Black, Law. Dict. title Evidence.

Evidence is "any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact. The fact sought to be proved is termed the 'principal fact;' the fact which tends to establish it, 'the evidentiary fact."" 1 Bentham, Jud. Ev. 17, 18. It is that which brings or contributes to bring the mind to a just conviction of the truth or falsity of the fact asserted or denied. 1 Livingston's Works, (ed. 1873) 419.

The word signifies in its original sense, the state of being evident, i. e. plain, apparent or notorious. But by an almost peculiar

inflection of our language, it is applied to that which tends to render evident or to generate proof. Best, Ev. § 11. This is the sense in which it is commonly used in modern law books, and will be used throughout this work.

Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself-such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of judicial cognizance. Evidence is generally considered improbable when it imputes to the parties to a transaction, occurring in the ordinary course of business, conduct inconsistent with the principles by which men, similarly situated, are usually governed. Daggers v. Van Dyck, 37 N. J. Eq. 130.

§ 4. Definitions from the Celebrated "Field Code."-After an extended survey of the entire field of definition and after a critical review of every treatise bearing upon the topic, the conviction remains that the celebrated "Field Code" of California contains by far the most satisfactory statement of what evidence is, in juridical contemplation, of any to be met with in the entire range of legal literature. In proof of this the text of §§ 1823-1839, inclusive, is herewith furnished. The rare aptitude of its distinguished author for condensed and perspicuous expression here receives a most vivid illustration.

1823. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact.

§ 1824. Proof is the effect of evidence, the establishment of a fact by evidence.

§ 1825. The law of evidence is a collection of general rules established by law:

1. For declaring what is to be taken as true without proof;

2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and,

3. For the production of legal evidence;

4. For the exclusion of whatever is not legal;

5. For determining in certain cases the value and effect of evidence.

§ 1826. The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

§ 1827. There are four kinds of evidence:

1. The knowledge of the court;

2. The testimony of witnesses;

3. Writings;

4. Other material objects presented to the senses. § 1828. There are several degrees of evidence:

1. Primary and secondary;

2. Direct and indirect;

3. Prima facie, partial, satisfactory, indispensable and conclusive. § 1829. Primary evidence is that kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents.

§ 1830. Secondary evidence is that which is inferior to primary. Thus a copy of an instrument, or oral evidence of its contents, is secondary evidence of the instrument and contents.

§ 1831. Direct evidence is that which proves the fact in dispute directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example: if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct.

§ 1832. Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example: a witness proves an admission of the party of the fact in dispute. This proves a fact, from which the fact in dispute is inferred.

§ 1833. Prima facie evidence is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence. For example: the certificate of a recording officer is prima facie evidence of a record, but it may afterward be rejected upon proof that there is no such record.

§1834. Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be received subject to be rejected as incompetent, unless connected with the

fact in dispute by proof of other facts. For example: on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterward connected with the fact in dispute.

1835. That evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. Such evidence alone will justify a verdict. Evidence less than this is denominated slight evidence.

§ 1836. Indispensable evidence is that without which a particular fact cannot be proved.

1837. Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example: the record of a court of competent jurisdiction cannot be contradicted by the parties to it.

§ 1838. Cumulative evidence is additional evidence of the same character to the same point.

§ 1839. Corroborative evidence is additional evidence of a different character, to the same point.

§ 5. Differences in the Effect of Evidence.-There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former, a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; but in the latter, especially when the offense charged amounts to treason or felony, a much higher degree of assurance is required. The serious consequences of an erroneous conviction or acquittal have induced the courts of every wise and civilized nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent judge expressed it, "such a moral certainty as convinces the minds of the tribunal, as reasonable men, beyond all reasonable doubt." The expression "moral certainty" is here used in contradistinction to physical certainty, or certainty properly so called; for the physical possibility of the innocence of any accused person can never be excluded. Best, Ev. 95.

§ 6. Observations on the Rules of Evidence.-The rules of evidence, as founded on reason and crystalized in the judgments of the courts, constitute the best means for discovering truth, and are an integral part of our legal system, essential alike for private and social security. Nevertheless, language of most dangerous.