by his adversary to state what he proposes to prove, and in that case he must state it. But he need make no such statement unless called upon to do so. It is enough for him to proceed and put his questions to the witness unless desired to state what he expects to prove. It will not be presumed that an improper question will be asked him." But, offers to prove conversations between third persons, tending to implicate the defendant, but not had in his presence, are not admissible as evidence against him, even if they did not relate to the particular offense with which he is charged, they would be inadmissible because irrelevant. Tolbert v. State, 87 Ala. 27.

When the admissibility of testimony depends upon the determination of a prior fact by the court, such prior fact need not be established by a weight of evidence amounting to a demonstration. It is only necessary that there should be so much evidence as to make it proper to submit the whole testimony to the jury. Com. v. Robinson, 146 Mass. 571.

Precedent acts which render the commission of the crime charged more easy, more safe, more certain, more effective to produce the ultimate result which formed the general motive and inducement, if done with the intention and purpose, have such a connection with the crime charged as to be admissible, though they are also of themselves criminal. Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81; Com. v. Choate, 105 Mass. 451; Swan v. Com. 104 Pa. 218; Goersen v. Com. 99 Pa. 388; Shaffner v. Com. 72 Pa. 60, 13 Am. Rep. 649; Mayer v. People, 80 N. Y. 364. See also Jordan v. Osgood, 109 Mass. 457. For cases where such connection was not shown, but where the principle was recognized, see Com. v. Jackson, 132 Mass. 16; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; People v. Sharp, (per Peckham, J.),

107 N. Y. 427.

Where the relevancy of evidence is brought in question, it is the duty of the court to indulge a preliminary examination as to its competency, and this may be conducted in the presence of the jury; but during it they stand simply in the attitude of spectators, with the testimony given them have no concern, it being merely for the information of the court, and until by its ruling some portion of it is presented to the jury as competent evidence in the case, there is nothing to which the defendant may except as constituting legal error. It is within the discretion of the court to

determine how far the examination shall extend. The exercise of that discretion is not reviewable unless it appears that such discretion was abused, and the action of the court arbitrary and unreasonable. People v. Smith, 104 N. Y. 491.

Where evidence is received for no specific purpose it is not error to receive it if it is admissible for any purpose. Starkey's App. 61 Conn. 199.

All questions of law, including the relevancy of evidence, the determination of such relevancy, the construction of statutes and writings, and of all rules of evidence, are to be decided by the court, and all discussions of law addressed to it. Whenever a fact is assumed to be known to the court, the court is to declare its knowledge to the jury, who are bound to accept it.

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§ 43. Indecency no Ground for Excluding Testimony.Mr. Taylor ($ 867) adopts from Professor Greenleaf the statement that "the law excludes on public grounds evidence which is indecent or offensive to public morals, or injurious of the feelings of third persons." The authorities given for this are actions on wagers which the court refused to try, or in which they arrested judgment, because the wagers were in themselves impertinent and offensive, as, for instance, a wager as to the sex of the Chevalier D'Eon Da Costa v. Jones, Cowp. 729; Stephen's Digest, art. 2, note 11.

In the recent case of State v. Markins, 95 Ind. 464, 48 Am. Rep. 733, 735, it was held that the chief element of the offense charged consists in illicit intercourse between the sexes evidence of previous lascivious conduct of the parties is admissible. Abbott's Criminal Brief, citing People v. Jenesse, 5 Mich. 305; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; Thayer v. Thayer, 101 Mass. 111; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; State v. Pippin, 88 N. C. 646; State v. Kemp, 87 N. C. 538.

The position taken by Professor Greenleaf on this subject is utterly indefensible, and this condemnation is judicially expressed by Sir James Stephen when he says: "I know of no case in which a fact in issue or relevant to an issue, which the court is bound to try, can be excluded merely because it would pain some one who is a stranger to the action." Stephen, Dig. (Chase's ed.) art. 2, note 2. Rice, Civil Evidence, § 257.

Judge Thompson very aptly observes: "The fact that evidence is indecent is no objection to its being received, where it is nec

essary to justice. But it is proper for the trial court to refuse to permit indecent questions to be put to children on the witness stand, nor will the court cominit error in refusing to compel a female witness testifying upon an indelicate subject, to couch her answers in indecent language, although, if so expressed, her answer would be more direct though not necessarily more intelligible." Thomp. Trials, § 356. Citing, inter alia, People v. White, 53 Mich. 537; State v. Laxton, 78 N. C. 564.

Evidence, if relevant, is not excluded on account of its indelicacy or indecency. Although courts may not refuse to consider details, however offensive and disgusting, if they become necessary in the course of investigation, yet they should always require the witnesses to be examined in a spirit of due delicacy, avoiding vulgar and obscene language. So a wife, if competent, may prove excessive intercourse; it is public policy which prevents a husband or wife from proving non-access. Stewart, Mar. & Div. § 348, citing Melvin v. Melvin, 58 N. H. 569; Da Costa v. Jones, Cowp. 729; Inglis v. Inglis, 15 Week. Rep. 1093; Abernathy v. Abernathy, 8 Fla. 243; Corson v. Corson, 44 N. H. 587; Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255.

It may be stated in general that the law excludes, on public grounds, evidence which is indecent or offensive to public morals or injurious to the feelings of third persons, the parties themselves having no interest in the matter, except what they have impertinently created. Yet the mere indecency of disclosure does not exclude, where the evidence is necessary for the purpose of civil or criminal justice, as on an indictment for rape, or on a question of sex of one claiming an estate tail, as heir, male or female, or upon the legitimacy of one claiming as lawful heir; or on a petition for dissolution of marriage or judicial separation, or for damages on the ground of adultery. In these and similar cases the evidence is necessary either for the punishment of crime or for the vindication of rights existing before or independent of the fact sought to be disclosed. Hageman, Privileged Communications, 185, citing 20 & 21 Vict. chap. 85, §§ 16, 27, 33.

NOTE.-A well considered article in 6 Central Law Journal, embodies a discussion of this subject, and while it lacks the weight and influence accorded to a judicial determination it well merits high consideration as a logical presentation of a vexed and subtle distinction, that many courts attempt to sustain in criminal proceedings. The article is based upon and was inspired by the case of State v. Cowell, decided by Supreme Court of Nevada in 1878, and reported

in 12 Nev. 337. The writer characterizes this case as the last of a series, "in which judges seem to have striven for the practical overthrow of the well settled rule of criminal law that the evidence must be confined to the issue."

"In this case, as well as in all others of the class to which it belongs, the existence and binding force of that rule is recognized; but the judges demonstrate to their own satisfaction that it is not infringed by the introduction of evidence showing that a prisoner has committed or agreed to commit an offense unconnected with the one for which he is on trial. They shelter themselves behind the rule which forbids the exclusion of evidence, in other respects admissible, merely because it shows, or tends to show, that the prisoner's character is bad, and allows the prosecution, in certain cases, to show that the accused has committed, or agreed to commit a crime other than the one for which he is on trial. They tell us that one of the cases in which this may be allowed, is where such evidence 'tends to throw light on what were the prisoner's motives and intention in doing the act complained of,' and conclude that the evidence decided to be admissible has this tendency.

"Such is the position of the supreme court of Nevada in the case in question. Whether it be correct or incorrect we shall proceed to consider.

"While the writer does not believe that courts should so closely confine the evidence to the particular transaction charged that the ends of justice shall be defeated and the guilty shielded, he is far from believing that they should go to the other extreme.

"The 'safe middle course' should be followed. On the one hand, evidence having a legitimate tendency to show a guilty purpose should not be excluded, and when other crimes commited by the prisoner are so closely connected with the one for which he is on trial that they can justly be said to throw light on his motives in doing the act complained of, evidence of their commission should be allowed to go to the jury. On the other hand, the dictates of justice and humanity require that the prosecution should not be allowed, by showing that the prisoner has committed a wholly disconnected offense, to induce the jury to convict him of a crime which he did not commit, because he deserves punishment for another which he did commit.

"The rule is too well settled to admit of dispute that the commission of one offense cannot be given in evidence on the trial of a person for another, merely for the purpose of inducing the jury to believe that the prisoner committed one offense, because he committed one of the same nature on another occasion.

"After a careful investigation of the subject the writer is forced to conclude that in the case of State v. Cowell, this rule was violated.

"What bearing on the question of a man's intent in entering a house has the fact that three days before such entry he agreed with others to rob the owner of the house on the street? Does it show that his intent was to steal? Decidedly not, unless the fact that a man is bad enough to steal tends to show that he entered a house for that purpose. If the evidence of the agreement to rob had no more bearing on the question of intent than this, it should not, as we have already seen, been received. Had it any more bearing? The writer thinks not, and his views are sustained by decisions of undoubted authority."

Here follows a collation of apt authorities beginning with Kinchelow v. State, 5 Humph. 9, where it was held that an accomplice could not, with a view to sustain his testimony, be permitted to narrate other instances of crime proposed to him by the defendant, though made in the same conversation in which the

crime charged was proposed. The court in its decision, said: "The only object of such testimony necessarily is to prejudice the minds of a jury, as it can by no possibility establish or elucidate the crime charged. We can well see how a jury who, in the case under consideration, might have unhesitatingly refused to find a verdict against the prisoner upon the evidence of the witness confined within its legitimate scope, may have been misled by the proof of the utter baseness and want of principle as detailed against him."

In People v. Corbin, 56 N. Y. 363, 15 Am. Rep. 427, it was held that upon a trial for forgery, the confession of the prisoner that he had committed other forgeries was not admissible on the question of criminal intent.

In Bonsall v. State, 35 Ind. 460, it was held that on the trial of the prisoner for a robbery committed on December 16th, it was error to allow the prosecu tion to show a second robbery of the prosecutor by the prisoner on the following day.

In People v. Barnes, 48 Cal. 551, it was held error for the trial court to admit evidence showing that on the night previous to that on which the burglary for which he was on trial was committed, the prisoner entered the prosecutor's room and stole a sum of money.

In Barton v. State, 18 Ohio, 221, it was held that upon the trial of the prisoner for stealing a horse, evidence that he had on the night of the day previous to that on which the horse was taken, stolen a sum of money, was inadmissible. In holding that such evidence was not admissible on the question of the prisoner's intent in taking the horse, the court say: "Although the court, in this instance, say that the evidence was only admitted for the purpose of showing the intent with which the defendant got possession of the property, yet we do not see any connection between the two transactions that would enable any legitimate conclusion to be drawn as to that fact. The only conclusion we can see that could fairly be drawn from the evidence, would be that the defendant intended to steal the horses and other property with which he was charged, because he was a thief and had just before stolen a sum of money. Each case must be tried on its own merits and be determined by the circumstances connected with it, without reference to the character of the party charged, or the fact that he may have previously committed similar crimes. On the part of the prosecution the general bad character of the defendant cannot be proved, when he offers no evidence of character; much less can particular acts of his be proved of which the record gives him no notice and which he, therefore, cannot be expected to meet." See also on this point, Coleman v. People, 55 N. Y. 81; People v. Bowen, 49 Cal. 654; People v. Jones, 31 Cal. 565; Farrer v. State, 2 Ohio St. 54; State v. Merrill, 13 N. C. 269; State v. Wisdom, 8 Port. (Ala.) 511. A resort to the very valuable annotation of section 1, Stephen's Digest by Judge May, will disclose a supplementary discussion of this somewhat confused topic of "Relevancy," but along other lines of investigation than those indicated in the preceding note,- as instance the following:

There seems to be no general test of relevancy. What is relevant on one issue is not relevant on the other. When the issue is fraud, great latitude is allowed in the proof of circumstances. Reels v. Knight, 8 Mart. N. S. 267. Circumstances so trivial and remote in themselves, that, if individually and separately offered, they might justly be rejected, may, from their multitude and relation, become important and obviously relevant. State v. Watkins, 9 Conn. 52. Especially, in cross-examination, when it becomes important to show