to advise the accused of the charge made against him he is not entitled to any further particulars; but where the counts are so general and embrace so many subjects that they do not advise the accused with sufficient distinctness of the charge in each made against him, the particulars as to these charges should be given to defendant so that he may be prepared to meet them. People v. Bellows, 2 N. Y. Crim. Rep. 12.

In this connection we will digress sufficiently to remind the practitioner that an exception should be taken to the ruling of the court in refusing to grant the bill, as, a writ of error in a criminal case brings up for review only questions of law raised by exceptions properly taken upon the trial. Donohue v. People, 56 N. Y. 211.

A bill

At common law the court has power to order a bill of particulars in any action, without regard to its nature, subject or form. Phil. Ev. 799; Com. v. Snelling, 15 Pick. 321; Hancock's App. 64 Pa. 470; Early v. Smith, 12 Ir. C. L. Rep. 35; Wren v. Wield, L. R. 4 Q. B. 213; Tidd, Pr. 526; Vischer v. Conant, 4 Cow. 396. The N.Y. code does not diminish but enlarges this power. See 158, 469. A bill of particulars may be ordered in an action of tort. Com. v. Snelling and Early v. Smith, supra; Jones v. Bewicke, L. R. 5 C. P. 32; Vischer v. Conant and Wren v. Wield, supra; Doe v. Philips, 6 T. R. 597; Humphrey v. Cottley, 4 Cow. 54; Doe v. Broad, 2 Scott, N. R. 685; Kirwin v. Jones, 3 Hodges, 230; Johnson v. Birley, 5 Barn. & Ald. 540; Webster v. Jones, 7 Dowl. & R. 774; Davis v. Chapman, 6 Ad. & El. 767. of particulars may be ordered in a criminal proceeding. Hodgson, 3 Car. & P. 445; Rex v. Bootyman, 5 Car. & Reg. v. Flower, 3 Jur. 558; Com. v. Giles, 1 Gray, 466; Rex v. Curwood, 3 Ad. & El. 815; 1 Hawk. P. C. chap. 83, § 13; Goddard v. Smith, 6 Mod. 261; Com. v. Davis, 11 Pick. 432; Lambert v. People, 9 Cow. 578, 587; Com. v. Snelling, supra. In an action of crim. con. or for divorce, an order for a bill of particulars is proper. Higgs v. Higgs, 11 Week. Rep. 154; Sanderson v. Sanderson, 20 Week. Rep. 261; Codrington v. Codrington, 3 Swab. & T. 368; Bancroft v. Bancroft, 3 Swab. & T. 610; Winscom v. Winscom, 3 Swab. & T. 380; Porter v. Porter, 3 Swab. & T. 796; Grafton v. Grafton, 28 L. T. N. S. 144; Brown v. Brown, L. R. 1 Prob. & Div. 46, 270; Adams v. Adams, 16 Pick. 254; Shaw v. Shaw, 2 Swab. & T. 642; Greaves v. Greaves, L. R. 2

Rex v.

P. 300;

Prob. & Div. 423; Latour v. Latour, 2 Swab. & T. 524; Garrat v. Garrat, 4 Yeates, 244; Steele v. Steele, 1 U. S. 1 Dall. 409, 1 L. ed. 199; Hancock's Appeal, 64 Pa. 470; Gardner v. Gardner, 2 Gray, 434; Harrington v. Harrington, 107 Mass. 329; Wood v. Wood, 2 Paige, 108, 112, 2 L. ed. 833, 835, 28 Am. Dec. 451; Anonymous, 17 Abb. Pr. 48; 2 Greenl. Ev. § 461; Bishop, Mar. & Div. § 315; Morris v. Miller, 4 Burr. 2057.

"It may be laid down as the result of the adjudications that the only proper office of a bill of particulars is to give information of the specific proposition for which the pleader contends in respect to any material issuable fact in the case, but not to disclose the evidence relied upon to establish any such proposition." Ball v. Evening Post Pub. Co. 38 Hun, 15. And the rule in relation to furnishing bills of particulars in criminal cases, as stated by Mr. Wharton in his work on Criminal Pleadings and Procedure, is: "that whenever the indictment is so general as to give the defendant inadequate notice of the charge he is expected to meet, the court on his application, will require the prosecution to furnish him with a bill of particulars of the evidence intended to be relied upon."

In People v. Bellows, 2 N. Y. Crim. Rep. 12, Mr. Justice Brady holds that when the statements in an indictmeut are sufficiently definite to advise the defendant of the charge against him, he is not entitled to any further particulars.

A motion for a bill of particulars is a motion addressed to the discretion of the court, and, as such, is not reversible error on a bill of exceptions. Com. v. Giles, 1 Gray, 466; Com. v. Wood, 4 Gray, 11; Chaffee v. Soldan, 5 Mich. 242; State v. Hood, 51 Me. 364; State v. Nagle, 14 R. I. 331.

§ 40. Relevancy, how Determined.-Testimony is regarded as relevant, which has a tendency however remote, to establish a controverted fact. It should directly connect itself with the issues raised in such a manner as to assist in the determination of those issues. Hence the primary importance of a due regard for the scope and nature of the issue on trial, as it is quite obvious that evidence may be material and relevant as regards one of the issues while entirely incompetent and immaterial as regards the others. Hovey v. Grant, 52 N. H. 569; Green v. Gilbert, 60 N. H. 146; Bedell v. Foss, 50 Vt. 94; Luce v. Hoisington, 56 Vt. 436; Raynes v. Bennett, 114 Mass. 424; Fitzgerald v. Pender

gast, 114 Mass. 368; Martin v. Tobin, 123 Mass. 85; Brierly v. Davol Mills, 128 Mass. 291; Whart. Crim. Ev. § 24; Rex v. Pearce, Peake, 75; Rex v. Egerton, Russ. & R. 375, cited by Holroyd, J., in Rex v. Ellis, 6 Barn. & C. 148; Ferneaux v. Hutchins, 2 Cowp. 807; Doe v. Sisson, 12 East, 62; Butler v. Watkins, 80 U. S. 13 Wall. 457, 20 L. ed. 629; Standard Oil Co. v. Van Etten, 107 U. S. 325, 27 L. ed. 319; Eaton v. New England Teleg. Co. 68 Me. 63; Segar v. Lufkin, 77 Me. 142; Wiggin v. Scammon, 27 N. H. 360; Hill v. Crompton, 119 Mass. 376; People v. Horton, 64 N. Y. 610; Read v. Decker, 67 N. Y. 182; Pratt v. Richards Jewelry Co. 69 Pa. 53; Arnold v. Macungie Sav. Bank, 71 Pa. 287; Brooke v. Winters, 39 Md. 505; Tompkins v. Starr, 41 Ohio St. 305; Comstock v. Smith, 20 Mich. 338; Welch v. Ware, 32 Mich. 77; Willoughby v. Dewey, 54 Ill. 266; Hough v. Cook, 69 Ill. 581; Hall v. Stanley, 86 Ind. 219; Ogle v. Brooks, 87 Ind. 600, 44 Am. Rep. 778; Hancock v. Wilson, 39 Iowa, 47; Mann v. Sioux City & P. R. Co. 46 Iowa, 637; Johnson v. Filkington, 39 Wis. 62; Blakely v. Frazier, 20 S. C. 144; Baker v. Lyman, 53 Ga. 339; Selma, R. & D. R. Co. v. Keith, 53 Ga. 178; Ashley v. Martin, 50 Ala. 537; Shealy v. Edwards, 75 Ala. 411; Ferguson v. Thacher, 79 Mo. 511.

Restating the above proposition we may say that facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will against any particular person, or showing the existence of any state of body or bodily feeling are relevant, when the existence of any such state of mind or body or bodily feeling, is a fact in issue or relevant to the issue.

Any other facts are relevant from which the facts in issue are presumed, or are logically inferable, or which, having regard to the relation of cause and effect, or the ordinary motives of human conduct, or the usual sequence of events, would, considered by themselves, create a probability with respect to the facts in issue. See note, page 74.

41. The Attributes of Relevancy.-To invest evidence with the attribute of relevancy, it must have a manifest tendency to prove or disprove the allegations of the indictment. Adhesion to this rule will exclude proof of collateral facts incapable of generating a legitimate presumption, that they will connect themselves with the question in dispute. A fact sought to be estab

lished may be very remote in point of time and place from the issues involved, but if the trial court can still detect in the evidence offered a tendency to explain the issue, sound policy would insist upon its admissibility. Proffered evidence is always relevant which seeks to show a motive for the crime charged. Green v. State, 12 Tex. App. 51; White v. State, 72 Ala. 195; Russell v. State, 11 Tex. App. 288; State v. Dearborn, 59 N. H. 348.

Ordinarily the improper admission of evidence in favor of one party is no excuse for the subsequent admission of illegal testimony on the other side. But the supreme judicial court of Maine has held that if prejudicial evidence is admitted without objection on one side, the other party is entitled to introduce evidence however remote it may be from the main issue to contradict it. This view should meet with unanimous approval. State v. Witham, 72 Me. 531.

"It is sufficient, in order to make a question relevant, that the answer which it seeks to elicit will tend in some sensible degree to prove or disprove the fact in issue. It is not necessary that the answer, if believed, should in itself afford complete proof. It may be corroborative testimony merely, or a single link in a chain of circumstances, or a single fact in a collection of facts, neither of which is sufficient in itself, but all of which, when taken collectively, may be of sufficient probative force to carry conviction to the minds of the jurors. If, therefore, the answer to a question may tend to prove, or may form part of the proof of the matters alleged, though not wholly sufficient to prove them, the question may be asked." Seller v. Jenkins, 97 Ind. 430.

So it is not error, in a criminal case, for the trial court to receive relevant evidence, notwithstanding the witness has violated an order of the court to remain outside of the court room while other witnesses were testifying. He may be punished for disobeying a rule of the court, but the state or the defendant should not be deprived of his evidence. State v. Falk, 46 Kan. 498.

All

Any facts tending to prove the main fact, and contemporaneous and connected with it, are admissible as a general rule. relevant and material evidence must be received; and evidence is not to be rejected because it fails to be conclusive; it is sufficient if it fairly tends to prove a point sought to be established. Testimony in reference to similar transactions is admissible to show

the criminal intent of a party, where other transactions of the same general character and connected therewith are investigated. Am. & Eng. Enc. Law, title Criminal Procedure, subdiv. 15. See also Reg. v. McCarthy, 2 Car. & K. 379, 1 Den. C. C. 453; Roscoe, Crim. Ev. 876; Reg. v. Weeks, Leigh & C. 18; Com. v. Jenkins, 76 Mass. 485; Osborne v. People, 2 Park. Crim. Rep. 583; Wood v. United States, 14 U. S. 16 Pet. 360, 10 L. ed. 994; Rex v. Ellis, 6 Barn. & C. 145; Reg. v. Foster, 2 Eng. L. & Eq. 548; Reg. v. Cobden, 3 Fost. & F. 833; Rex v. Dunn, 1 Moody, C. C. 146; Rex v. Davis, 6 Car. & P. 171; People v. Rando, 3 Park. Crim. Rep. 336; People v. Nichol, 1 Fost. & F. 51; People v. Hopson, 1 Denio, 574.

The declarations of a party to a civil or criminal proceeding, in respect to matters within his own knowledge, or of which he may be presumed to have knowledge, and relevant to the issue, are always competent against him. Coleman v. People, 58 N. Y. 555. Evidence is not to be rejected because it fails to be conclusive; it is sufficient if it fairly tends to prove a point sought to be established. Com. v. Sawtelle, 141 Mass. 140.

As tending to prove a point sought to be established, the entries of a person since deceased, made at or near the time of a transaction, when he may be presumed to know the facts stated therein, may be read as evidence of the facts stated if it appears that,

(1) the entry was made in the ordinary course of business; or, (2) that it was made in a professional capacity, and in the ordinary course of professional conduct; or,

(3) that it was made in the performance of a duty imposed by lawful authority. And further

(4) any act, declaration, or omission of a party against his interest is relevant, and hence admissible.

§ 42. Offer of Proof.-Where counsel offer to prove a certain fact and the relevancy of the evidence is not apparent, the court may require him to disclose the substance and on its satisfactorily appearing that it will connect itself legitimately with the question in the case it should be admitted. If it is rejected an exception should be duly entered as in civil cases, and on appeal the materiality of the rejected evidence must be shown. Morgan v. Browne, 71 Pa. 130; Jackson v. Hardin, 83 Mo. 175; United States v. Gibert, 2 Sumn. 20.

"A party having a witness on the stand, may be called upon