not necessarily establish the corpus delicti. It may be, and often is, conflicting and contradictory. In such case, the credibility of the witnesses, and the sufficiency of the entire evidence, are for the ultimate decision of the jury.

27. Legislature may Declare the Effect of.-While the legislature may establish the effect of certain evidence and shift the burden of proof from one party to another, and declare what may be presumptive evidence of certain facts, it has not the power to make the lawful act of one person presumptive evidence of the unlawful act of another without any proof of his knowledge, complicity or consent. See New York Const. art. 1, § 6.

It has been repeatedly decided in New York, that the legislature has the right to declare what shall be presumptive evidence of any fact. Hand v. Ballou, 12 N. Y. 543; People v. Mitchell, 45 Barb. 212; Hickox v. Tallman, 38 Barb. 608; Donahue v. O'Connor, 13 Jones & S. 297; Howard v. Moot, 64 N. Y. 262, 5 Thomp. & C. 93.

Legislation of the character in question, as to rules of evidence is not without precedent, nor is its validity a question unadjudicated. In Com. v. Williams, 6 Gray, 1, Williams was indicted and convicted for being a common seller of spirituous and intoxicating liquors. The statute concerning the manufacture and sale of spirituous and intoxicating liquors, under which the indictment was found, provided, among other things, that "delivery in or from any store, shop, warehouse, steamboat or other vessel, or any vehicle of any kind, or any building or place other than a dwelling house, shall be deemed prima facie evidence of a sale."

The trial judge instructed the jury that the delivery by the defendant of such liquors in his place of business, the same not being a dwelling house, without evidence of payment therefor, was prima facie evidence of sale by the defendant, unless explained or controlled by other evidence. It was contended, upon appeal by the supreme court, that the provision was unconstitutional, because it was unreasonable, contrary to the rules and principles of the common law, an encroachment upon the judicial department, and subversive to the right of trial by jury.

The court held the statute to be constitutional, and the view taken of it is that it only prescribes, to a certain extent and under particular circumstances, what legal effect shall be given to a particular species of evidence, if it stands entirely alone and is left

wholly unexplained, that this evidence neither conclusively determines the guilt or innocence of the party who is accused, nor withdraws from the jury the right and duty of passing upon and determining the issue to be tried; that the purpose and effect of the clause of the statute are to simply give a certain degree of artificial force to a designated fact until such explanations are afforded as to show that it is at least doubtful whether this proposed statutory effect ought to be attributed to it, but the fact itself is still to be shown and established by proof sufficient to convince and satisfy the minds of the jurors, and if this proof is furnished, and the delivery of any quantity of spirituous liquor, in a place other than a dwelling house, is fully shown, this will not be conclusive against the party charged with having made the sale of it; that making out a prima facie case does not change the burden of proof but is only the result of that amount of evidence which is sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if the fact so established be not encountered and controlled by other evidence tending to modify its effect, or to so explain it as to render the statutory inference from it too uncertain and improbable to be relied upon; the burden remains continuously on the government to establish the accusation charged in the indictment or information. Com. v. Kimball, 24 Pick. 373, 35 Am. Dec. 326; Com. v. McKie, 1 Gray, 61, 61 Am. Dec. 410.

In Com. v. Wallace, 7 Gray, 222, where the indictment was for an unlawful sale of spirituous and intoxicating liquors, it was again contended that the provision in question was unconstitutional, and applied only where a naked delivery was proved without any accompanying circumstances; and the trial judge was requested, inter alia, to so charge; but he refused, and instructed the jury that, if there was proved beyond a reasonable doubt a delivery of intoxicating liquor by the defendant from any building or place other than a private dwelling house or its dependencies, it would be prima facie evidence of a sale, and would warrant a conviction, but that the circumstances under which the delivery was made might rebut the presumption, or the presumption might be rebutted by proof. The supreme court overruled the exceptions taken to the instructions given. Com. v. Rowe, 14 Gray, 47, maintains the same doctrine, and that the burden is on the government to prove the sale beyond a reasonable doubt. See also Holmes v. Hunt, 122 Mass. 505, 23 Am. Rep. 381.

A statute of Maine provided that whenever an unlawful sale of intoxicating liquor is alleged, and delivery proved, it shall not be necessary to prove a payment, but such delivery shall be "sufficient evidence of sale." This provision was held to be constitu tional. "Delivery, in the absence of all other proof," says the court, "is made sufficient evidence of sale-sufficient when no other proof is offered. It is open to disproof from every source. It may be explained by attendant circumstances. The party delivering is not estopped by the fact of delivery.

The fact of delivery is deemed sufficient, if not explained by the circumstances accompanying the delivery, or if the inference is not negatived by disproof." State v. Hurley, 54 Me. 562.

CHAPTER V.

BEST AND SECONDARY EVIDENCE.

§ 28. Characteristics of Best and Secondary Evidence. 29. Foundation for Secondary Evidence.

30. Relaxation of the Rule in Certain Cases.

31. Notice to Produce.

§ 28. Characteristics of Best and Secondary Evidence.One dominant law of evidence that is without relaxation and at all times in the ascendency, is that demanding the best attainable evidence of which the case is susceptible. Bench, bar and commentator are alike agreed upon this postulate, and it is enforced with precision, both in this country and in England. The United States Supreme Court, through Mr. Justice Nelson, delineates the rule with admirable lucidity. In a case that is still quoted with approbation, and as a pertinent exposition of the subject under review, an excerpt from the opinion is inserted:

"One of the general rules of evidence, of universal application, is that the best evidence of disputed facts must be produced of which the nature of the case will admit. This rule, speaking technically, applies only to the distinction between primary and secondary evidence; but the reason assigned for the application of the rule in the technical sense is equally applicable, and is frequently applied, to the distinction between the higher and inferior degree of proof, speaking in a more general and enlarged sense of the terms, when tendered as evidence of a fact. The meaning of the rule is, not that courts require the strongest possible assurance of the matters in question, but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party's possession or power; because the absence of the primary evidence raises a presumption, that, if produced, would give a complexion to the case at least unfavorable, if not directly adverse, to the interest of the party." Clifton v. United States, 45 U. S. 4 How. 242, 11 L. ed. 957.

On prior and on subsequent occasions the same court has announced a similar principle, and we may safely affirm that it is a

cardinal feature of evidentiary law as administered in this country. No evidence shall be received, which presupposes better evidence in the party's possession, and this rule may be regarded as established beyond question. Tayloe v. Riggs, 26 U. S. 1 Pet. 591, 7 L. ed. 275; Cooke v. Woodrow, 9 U. S. 5 Cranch, 13, 3 L. ed. 22; Fresh v. Gilson, 41 U. S. 16 Pet. 327, 10 L. ed. 982; DeLane v. Moore, 55 U. S. 14 How. 253, 14 L. ed. 409; McPhaul v. Lapsley, 87 U. S. 20 Wall. 264, 22 L. ed. 344.

The rule that the best evidence must be produced which the nature of the case admits, means, not that the courts require the strongest possible assurance, but that no evidence shall be admit ted which presupposes greater evidence in the party's favor. United States v. Reyburn, 31 U. S. 6 Pet. 352, 8 L. ed. 424.

The reason of the rule that secondary or inferior evidence shall not be substituted for any evidence of a higher nature which the case admits of, is that the attempt to substitute the inferior for the higher implies that the higher would give a different aspect to the case of the party introducing the lesser. United States v. Wood, 39 U. S. 14 Pet. 430, 10 L. ed. 527; Tayloe v. Riggs, 26 U. S. 1 Pet. 591, 7 L. ed. 275; Clifton v. United States, 45 U. S. 4 How. 242, 11 L. ed. 957; DeLane v. Moore, 55 U. S. 14 How. 253, 14 L. ed. 409. The reasons calling for the production of the best evidence of which the case is susceptible in civil cases, are of equal weight and cogency in criminal prosecutions. Chief Justice Parsons in a criminal case decided in 1808, sententiously announces the rule in the following language: "It is an indispensable rule of law, that evidence of an inferior nature, which supposes evidence of a higher in existence, and which may be had, shall not be admitted." Com. v. Kinison, 4 Mass. 646.

§ 29. Foundation for Secondary Evidence.—In accounting for the absence of a writing material to the case, so as to let in secondary evidence of its contents, no universal rule can be declared which will be applicable under all circumstances. The testimony is addressed to the presiding judge, and he pronounces on its sufficiency. He must be reasonably convinced that it has been destroyed, is lost, or is beyond the reach of the court's proA material inquiry in such cases is, whether or not there was a probable motive for withholding this highest and best evidence. Whenever the court is able to answer this inquiry in the negative, less evidence will satisfy its conscience, than if suspicious

cess.