for any purpose. h So, also, under an indictment for one burglary, evidence of the manufacture by the defendant of the burglarious instruments by which another burglary was committed, was held inadmissible. ¿

§ 649. Exception when acts form part of one transaction.When the acts form one transaction, the evidence is admissible. ¿1 Thus, on a trial for murder, evidence that the prisoner, on the same day the deceased was killed, and shortly before the killing, shot a third person, was held admissible, under the circumstances of the case, notwithstanding the evidence tended to prove a distinct felony committed by the prisoner; such shooting, and the killing of the deceased, appearing to be connected as parts of one entire transaction.j

So, also, upon a trial for breaking into a booking office of a railway station, evidence was admitted that the prisoners had, on the same night, broken into three other booking offices, belonging to three other stations on the same railway, the four cases being all mixed up together.j1

So, on an indictment for arson, in setting fire to a rick, the property of A., it was ruled that evidence could be given of the prisoner's presence and demeanor at fires of other ricks, the property respectively of B. and C., occurring the same night, although those fires were the subject of other indictments against the prisoner, such evidence being important to explain his movements and general conduct before and after the fire of A.'s rick. It was, however, held, in conformity with the views heretofore expressed, that it was not admissible to prove threats, statements, or particular acts pointing alone to other indictments, and not tending to implicate or explain the conduct of

h Walker v. Com. 1 Leigh, 574; see, also, Brock v. State, 26 Alabama, 104; Hall v. People, 6 Parker C. R. 671; ante, § 640, note n.

i Com. v. Wilson, 2 Cushing, 590. il Osborne v. People, 2 Parker C. R. 583; People v. Robles, 34 Cal. 591; Mason v. State, 42 Ala. 543. On a charge of arson (the case turning on identity) evidence was rejected that, a few days previously to the fire, another building of the prosecutor's was

found on fire, and the prisoner was seen standing by, with a demeanor which showed indifference or gratification. R. v. Harris, 4 F. & F. 342– Willes.

j Heath v. Com. 1 Rob. (Va.) 735; State v. Rash, 12 Ired. 382; Johnson v. State, 17 Ala. 618; Walters v. People, 6 Parker C. R. 15; R. v. Voke, R. & R. 531; ante, § 635.

j1 R. v. Cobden, 3 F. & F. 833. See R. v. Rearden, 4 F. & F. 76.

the prisoner in reference to the fire, under immediate investigation.j2

Exception when scienter or quo animo is to be proved.— Where the scienter or quo animo is requisite to, and constitutes a necessary and essential part of the crime with which the person is charged; and proof of such guilty knowledge, or malicious intention, is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct, or declarations of the accused, as tend to establish such knowledge or intent, is competent; notwithstanding they may constitute in law a distinct crime. k Where a prisoner was indicted as accessary before the fact, to the crime of killing a person who had been actively engaged in ascertaining the perpetrators of a former murder, evidence of the guilt of the accused as to the former murder was held admissible, for the purpose of showing motive as to the second murder. And so, on an indictment against persons for a conspiracy to carry on the business of common cheats, evidence is admissible of the defendant having made false representations to other tradesmen besides those named in the indictment. m So where the defendant and his sister were indicted for the murder of the sister's husband, with whom she had lived unhappily, it was held competent for the prosecution to offer evidence of an incestuous connection between defendant and his sister, existing some months prior to the murder. m1 In another case, n upon an indictment for conspiring and unlawfully meeting for the purpose of exciting disaffection and discontent among his majesty's subjects at Manchester, it was holden that the previous conduct of a portion of the assembly, in training, &c., and in assaulting persons whom they called spies, was competent evidence as to the general character and intention of the meeting, although the effect of it as to each particular defendant was a distinct matter for the consideration j2 R. v. Taylor, 5 Cox C. C. 138 Patteson.

k Bottomly v. U. S. 1 Story, 135; Dunn v. State, 2 Pike, 229; 2 Russ. on Crimes, 777; People v. Hopson, 1 Denio, 574; R. v. Roebuck, 36 Eng. Law & Eq. 631; People v. Wood, 3 Parker C. R. (N. Y.) 681; R. v. Weeks, Leigh & Cave, 18; State v. Raymond,

20 Iowa, 582; 1 Greenl. on Evid. § 53; ante, § 631-2-3-4-5.

1 Dunn v. State, 2 Pike, 229; ante,

§ 635.

m R. v. Roberts, 1 Camp. 400.

m1 Stout v. People, 4 Parker C. R. 71, 132.

n R. v. Hunt et al. 3 B. & Ald. 566.

of the jury. It was held competent to show, also, as against Hunt (who, though a stranger, except by political connection, had been invited to preside as chairman at the meeting), that at a similar meeting in another place, holden for an object professedly similar, certain resolutions had been proposed by that person; it being in its nature a declaration of his sentiments and views on the particular subject of such meetings, and of the topics there discussed. So in an indictment for adultery, previous improper familiarities may be shown to show the quo animo, o though it is otherwise with evidence of subsequent improper intercourse at another place. p And so, too, on an indictment for rape, or for an assault with an intent to commit a rape, evidence of previous assaults or rapes on the prosecutrix, are admissible to show the intent. q

§ 649 a. It is essential, however, that such evidence, if admitted, should be simply to prove intent, and not to prove character, or establish a substantive and independent crime. Thus in 1861, in Massachusetts, a new trial was granted in a case of embezzlement, where evidence of distinct acts of fraud was admitted, but where it did not appear that such evidence was limited by the judge, in his instructions to the jury, to the question of intent. q1

§ 6496. In many cases, it is an important question whether a thing was done accidentally or wilfully. Thus, it has been ruled in England that where a person is charged with having wilfully poisoned another, and it is a question whether he knew a certain white powder to be poison, evidence would be admissible to show that he knew what the powder was, because he had administered it to another person, who had died, although that might be proof of a distinct felony.r But such evidence is clearly inadmissible to prove the fact of poisoning; nor can it be admitted except on the assumption that the poisoning is proved, and the defence is accidental administration. r1

o State . Wallace, 9 N. Hamp. 518; Lawson v. State, 20 Ala. 66; Com. v. Pierce, 11 Gray, 447; Com. v. Lahey, 14 Gray, 91; post, § 2653. See ante, § 632, 636, 640.

p Com. v. Horton, 2 Gray, 354; 2 Greenl. Ev. § 47; State v. Crowley, 13 Ala. 172; post, § 2663.

q Williams v. State, 8 Humph. 585;

VOL. I.- -36

State v. Knapp, 45 N. H. 148; Strang v. People, 24 Mich. 1.

q Com. v. Shepard, 1 Allen, 575. See R. v. Ball, R. & R. 132.

r R. v. Dossett, Maule, J., 2 Car. & Kir. 306; S. P. R. v. Garner, 4 F. & F. 346.

rl Ante, § 635 c.

561

§ 650. Circumstantial evidence to increase presumption of guilt. — To what extent circumstantial evidence is admissible to increase the presumption of guilt will be noticed more fully hereafter. 8 One or two cases may be here enumerated. It is competent for the prosecutor of an indictment for selling liquor without a license, to prove that the defendant kept a bar with bottles in it. So where, on a trial for larceny, identity is in question, evidence is admissible to show that other property, which had been stolen at the same time, was in the possession of the defendant at the time he was in possession of the property charged in the indictment. u But where a defendant was on trial for breaking and entering the City Hall, at Charlestown, and a mass of burglarious tools and implements, found in his possession at the time of his arrest, were exhibited to the jury, some of which were adapted to the commission of the offence with which he was charged, it was held, that it was not competent for the government to prove that the ward of a key found among such tools and implements, was made and fitted by the defendant, for the purpose of opening the door of the building of the Lancaster Bank. On the other hand, it was ruled that where the prisoner was seen on the day after the burglary for which he was indicted, under very suspicious circumstances, near the place where it was committed, it was competent to prove that the implements used came from his home. w It is important not to confound the principles on which these two classes of cases rest. On the one hand, it is admissible to produce evidence of a distinct crime, to prove scienter or to make out the res gestæ, or to exhibit a chain of circumstantial evidence of guilt in respect to the act charged. a On the other hand, it is necessary strictly to limit the evidence to these exceptions, and to exclude it when it does not legitimately fall within their scope.

v

§ 651. On the trial of an indictment for manslaughter, the record of a previous conviction of the defendant for an assault and battery upon the person of the deceased, and judgment thereon before her death, is admissible evidence to prove the fact

s Post, § 707-27.

t People v. Hulbut, 4 Denio, 133.

u Yarborough v. State, 41 Ala. 405; see Mason v. State, 42 Ala. 532; but see ante, § 634-647.

v Com. v. Wilson, 2 Cushing, 590. w People v. Larned, 3 Selden, 445. x Ante, § 631-2-3-4-5.

of such conviction; but it is not evidence of an assault committed on the deceased, as alleged in the indictment for manslaughter, or that the assault stated in the record of such conviction is the same. y

An offer to bribe, and an attempt to escape from commitment under a different offence, are admissible, when both offences are founded on the same fact. z

1. As a General Rule, Secondary Evidence is inadmissible.

ΤΟ

§ 652. Secondary evidence, as a general rule, is inadmissible to prove any fact whatever, and the design of the rule is to prevent the introduction of any testimony which, from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when it is apparent that evidence of a higher order is held back, it is fair to presume that if offered it would have told against the party withholding it. a By requiring the production of the best evidence applicable to each particular fact, is meant, that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. Thus, the contents of a letter, written by a prisoner, cannot be testified to, by a witness for the prosecution, unless it is shown that the letter is destroyed or is in the possession of the prisoner. So a title by deed must be proved by the production of the deed itself, if it is within the power of the party, no higher evidence being possible; and its non-production would raise a presumption that, had it been produced, it would have injuriously affected the title of the party refusing to offer it. But where there is no withholding of

y Com. v. M'Pike, 3 Cush. 181. z Dean v. Com. 4 Grat. 541.

a 1 Greenl. on Evid. § 82.

b Com. v. Thompson, Thach. Cr. Ca. 28.