given from which death ensued, judging from the relative positions of the parties as stated by witnesses, are not [400] admissible in evidence. (b) So of opinions as to the age

of a person from his appearance; (c) and the like as to fraud or criminal intention. (d) Professional men are to state facts and opinions within the scope of their professions, not to give opinions on things of which the jury can as well judge. (e) Where the opinion of an expert is offered, the court may hear evidence first to ascertain whether he is an expert, and then allow the opinion to be given in evidence to the jury. (ƒ)

In proving the laws of foreign countries also, the opinions of competent witnesses are admissible. The unwritten law of a foreign state may be proved by the parol evidence of witnesses possessing professional skill; but where the laws are in writing, a copy properly authenticated must be produced. (g) Thus, on a trial for abduction, a gentleman of the Scotch bar was examined, as to whether the mar riage as proved by the witnesses would be a valid marriage according to the law of Scotland. () So, foreign unwritten laws, customs and usages may be proved, and indeed must ordinarily be proved by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the law, under oath. (¿)

A party after having introduced evidence, before the jury, on the trial of a cause, can not be permitted to withdraw it, on finding that it does not answer his purpose. Evidence, once given, belongs to the cause, and is the common property of all the parties. (Z) (8)

(b) 19 Wend., 569.

(c) 6 Conn. Rep., 9.

(d) 1 Whee. Cr. Cas., 205.

(e) 5 Rogers' Rec., 26.

(f) 6 Rand., 704.

(g) Roscoe's Cr. Ev., 137; 4 Camp., 155.

(h) Id., ib.; Wakefield's Case, 238.

(i) Story's Confl. of L., 530; Roscoe's Cr. Ev., 137, n. (1); 15 Serg. & R., 84; 1 John., 385. (k) 7 Barb., 182.

(8) GENERAL RULES OF EVIDENCE.

Circumstantial evidence.]—On the trial of a man for the murder of his wife, it may be shown that the father of the deceased had so disposed of his estate, by will, as to disappoint the expectations of the prisoner. (Hendrickson v. People, 10 N. Y., 9; S. C., 1 Park., 396, 406; 8 How. Pr., 404.) It is competent to prove that the prisoner advised an accomplice to break jail and escape. (People v. Rathbun, 21 Wend., 509.) But evidence that the prisoner refused to escape, when informed of the charge and advised to do so, is inadmissible. (Id.) The tools, wherewith a burglary is supposed to have been committed, may be exhibited to the jury, in connection with evidence tending to show them to have been used in its commission, and to connect them with the prisoner. (People v. Larned, 7 N. Y., 445. And see People v. Fernandez, 35 id., 49; People v. Ruloff, 11 Ab. Pr. [N. S.], 245; Gardiner v. People, 6 Park., 155.) So evidence is admissible of the finding of burglars' tools at the place where the crime was committed, which were made for another person jointly indicted with the prisoner, and shown to be connected with him in the perpetration of the offense. (Clark v. People, 2 Hun, 520; S. C., 5 T. & C., 33.) Where a charge depends upon circumstantial evidence, it ought not only to be con

214154

[ *401 ]

*CHAPTER II.

WRITTEN EVIDENCE.

1. PUBLIC DOCUMENTS AND RECORDS.

2. PRIVATE DOCUMENTS.

FIRST. Public documents and records.] Public statutes, the rules of the common law, and the general customs of the country, are never

sistent with the prisoner's guilt, but inconsistent with any other rational conclusion. (Stephens v. People, 4 Park., 396; People v. Bennett, 49 Ñ. Y., 137.) On a trial for killing a police officer while he was attempting to arrest the prisoner in the nighttime, it is material for the prosecution to fix upon the prisoner presumptive knowledge, at the time of the killing, of the official character of the deceased. This presumptive knowledge may be established by circumstantial evidence, such as that the deceased was clad in the uniform and insignia of his office, and that it was light at the time; that the prisoner must have seen such uniform, etc. (Yates v. People, 32 N. Y., 509.) But circumstances, to be competent evidence for that purpose, must have specific connection with the time and place of the killing, so that, the circumstances being true, the presumption of knowledge would arise therefrom. (Id.) It is not erroneous, on the trial of one who was last seen with a murdered man, a few moments before the homicide, to admit proof, by those who arrested him, that they found his clothing stained with blood. (People v. Fernandez, 35 N. Y., 49.) Such stains upon the person and clothing of the accused are among the ordinary indicia of homicide; and the practice of identifying them by circumstantial evidence, and the inspection of witnesses and jurors, has the sanction of immemorial usage in all criminal tribunals. (Id.) The testimony of a chemist who has analyzed blood, and that of an observer, who has merely recognized it, belong to the same legal grade of original and primary evidence; and though one may be entitled to greater weight than the other, with the jury, the exclusion of either would be illegal. (Id.) The clothes, identified as those worn by the accused on the evening of the homicide, are properly submitted to the inspection of the jury. (Id.) To convict on circumstantial evidence, it is only necessary that it be sufficient to satisfy the understanding and conscience of the jury, and exclude from their minds all reasonable doubt of the prisoner's guilt. (Murphy v. People, 4 Hun, 102; S. C., 6 T. & C., 369; aff'd 63 N. Y., 590.)

To warrant a conviction upon circumstantial evidence, the case must be such as to exclude, to a moral certainty, every other hypothesis, except that of the guilt of the accused. (People v. Cunningham, 6 Park., 398.) Charge of the court, on a trial for murder, when the case rests entirely upon circumstantial evidence. Rules by which circumstantial evidence is weighed. Comparison between circumstantial and direct evidence, and an explanation of the character of each, respectively. (See Id.) Circumstantial evidence is proper on the hypothesis that certain things are usual concomitants of each other. Hence one set of facts must be proved, that the other may be reasonably inferred therefrom. (People v. Kennedy, 32 N. Y., 141.) Where the direct evidence is insufficient, collateral circumstances may be adduced in aid thereof; but if the same defect attach alike to the collateral circumstances, they will be incompetent evidence. (Id.)

Assault and battery, with intent to commit a rape, may be proved without the testimony of the person injured. (People v. Bates, 2 Park., 27.) Where there is reason to believe that the person injured is kept out of the way by the prisoner or his friends, and the assault, etc., are proved by persons who heard the cries of the woman, and witnessed the transaction from a distance, the jury may infer the intent, from the circumstances. (Id.)

required to be set forth in the pleadings or proved at the trial ; because the courts are bound ex officio to take notice of them. And

To justify a conviction on circumstantial evidence, the facts and circumstances must be such as to exclude every other hypothesis than that of the guilt of the accused. (Jefferds v. People, 5 Park., 522.)

Where a criminal charge rests upon circumstantial evidence, and where, upon any hypothesis, however improbable, consistent with circumstances proved, the accused may be innocent, it is erroneous for the court to charge the jury that it is incumbent on them to convict. The question of guilt, in such cases, is for the jury, and not for the court. (Breen v. People, 4 Park., 380.)

A motive for the act may be established by circumstantial evidence, the same as any other fact. (People v. Wood, 3 Park., 681.). It does not lie with the prisoner to object that the fact proposed as a circumstance is so heinous in its nature, and so prejudicial to his character, that it shall not be used against him, if it bears upon the fact in issue. (Id.) The proper inquiry, when the circumstance is offered, is, does it fairly tend to raise an inference in favor of the existence of the facts proposed to be established? If it does, it is admissible, whether such circumstance be innocent or criminal, in its character. (Id.)

Where circumstances are relied on, by the public prosecutor, to establish the commission of a felony by the prisoner, they must be such as are reconcilable with his guilt only, and are utterly inconsistent with his innocence. (Plunkett's Case, 3 C. H. Rec., 137; Atwood's Case, 4 id., 91.)

The rule which requires a party to produce evidence which will contradict or explain circumstantial evidence against him requires him to do so only when he is pressed by circumstantial proof, and has it in his power to destroy its apparent force. (People v. McWhorter, 4 Barb., 438.) Before the absence of evidence can affect a party accused, it must appear that there is evidence that would elucidate the matter in dispute, and that it is peculiarly within the knowledge of such party. Then if he is pressed by the force of circumstantial evidence, and does not produce the evidence within his power, it may afford a strong presumption against him. (Id.) But a party is not bound, in order to avoid a presumption against him arising from circumstantial evidence, to produce as witnesses persons who may, by possibility, have knowledge on the subject. He need only produce those who are proved to have been so circumstanced as to justify the conclusion that they must have knowledge which, if divulged, would throw light on the subject. (Id.)

Motives. In a criminal case, evidence of the existence, or want, of motive is always admissible. (People v. Robinson, 1 Park., 649; 2 id., 235; McCann v. People, 3 id., 272; People v. Wood, id., 681; Breen v. People, 4 id., 380; Freund v. People, 5 id., 198; People v. Cunningham, 6 id., 398.) Every thing which happened in the presence and hearing of the prisoner, at the time of the commission of the homicide, is material as tending to show the prisoner's motive. (McKee v. People, 86 N. Y., 113.) Evidence of the commission of a distinct felony may be given, not for the purpose of establishing the fact on trial, but in order to show a motive in committing it. (People v. Wood, 3 Park., 681.) But a motive for the commission of a crime can not be imagined. The facts from which such motive may be inferred must be proven. Hence, a suggestion, in a charge to the jury, of a motive which is not warranted by the evidence, and may have influenced their minds to the prejudice of the prisoner, is error. (People v. Bennett, 49 N. Y., 137.) On a trial for a felony, evidence tending to prove the existence of a motive for its commission is not to be rejected because it may incidentally show that the accused has been guilty of a separate and distinct felony; or because such evidence relates to the acts of the party accused, done subsequently to the principal felony. (Pierson v. People, 18 Hun, 239; aff'd 79 N. Y., 424.)

On the trial of the prisoner for murdering his wife, it was proved, on the part of the prosecution, under objection and exception, that a short time before the alleged murder, the prisoner married another woman. Evidence was also given, as to his prior and subsequent relations with her. Held, that the evidence was proper, as showing a motive. (Reinhart v. People, 82 N. Y., 607.) So, upon the trial of a man for murdering his wife, it is proper, on the question of motive, to prove that the wife had entered a complaint against the defendant, as a disorderly person, in that he had abandoned his wife, and that he, on being arrested, had given a recognizance, on

therefore when the printed copy of a public statute is produced at a trial, as is frequently the case, it is not to be deemed to be produced

which he had been required to pay, and had paid, a certain sum, weekly, for her support. (People v. Williams, 3 Park., 84.)

On the trial of a party for the murder of his wife, it was held that evidence of conversations between the prisoner and his brother-in-law, tending to show an alienation of affection on his part, in regard to his wife, was admissible on the question of motive. (People v. Hendrickson, 1 Park., 406; S. C., 8 How. Pr., 404.) Held, also, that the will of the prisoner's father-in-law was properly received in evidence, for the purpose of showing that the pecuniary expectations which the prisoner might have entertained, by reason of his alliance with the family, had been disappointed. (Id.) Upon the trial of a prisoner for the murder of his wife, it is competent, upon the question of motive, for the prosecution to prove that several months before the commission of the act, the deceased made a complaint against the prisoner for assault and battery, upon which he was arrested and held to bail. (M.Cann v. People, 3 Park., 272.)

On the trial of an indictment for murder, evidence on the part of the prosecution of a fact tending to prove a motive for the commission of the homicide, ought to be received, although the fact thus offered to be proved amounts to a distinct felony. (Stout v. People, 4 Park., 132.)

On a trial for perjury evidence to prove a motive is admissible. (Harris v. People, 6 T. C., 696.)

On this subject, a learned American writer observes: "The will acts under a variety of motives, some very complex. The motive varies with the man. What is strong with one being weak with another. Instinctive passion is a responsible motive; and so also is the general intent to violate law, fall the consequences on whom they may. And the law is that if among all the motives leading to a particular act, one is illegal, this is sufficient to add to the act the essential evil intent, no matter how strong may be other concurrent intents." (Whart. Cr. L., § 119.)

On a trial for crime, a quarrel between the complainant and the party against whom he testifies, though disconnected with the subject-matter of the complaint, may be taken into consideration by the jury, in ascertaining the motive and weighing the credibility of the witness. (Breen v. People, 4 Park., 380.)

Motive is a minor or auxiliary fact, from which, when established in connection with other necessary facts, the main or primary fact of guilt may be inferred; and it may be established by circumstantial evidence, the same as any other fact. (People v. Wood, 3 Park., 681.)

It is not collateral, but relevant, to the main issue to inquire into the motives which influence a witness in giving his testimony; and a party examining a witness in regard to them is not bound by his answers, but may contradict him. (People v. Austin, 1 Park., 154.)

Statements.]-What a person says, when examined as a witness in a legal proceeding, may be used in evidence against him; but the statements or oath of a party accused can not be given in evidence. (People v. Hendrickson, 1 Park., 406; S. C., 10 N. Y., 13.) Where, on the trial of a party for the murder of his wife, it appeared that the prisoner had been examined as a witness, before the coroner's inquest, on the evening subsequent to the death, and that he had not then been charged or accused of the crime, and that his statements then made, under oath, were free and voluntary, such statements were held to be properly receivable in evidence against him. (Id.)

Where statements, made by the prisoner, have been proved and put in evidence on the part of the prosecution, they are only evidence to be considered in connection with all the other evidence in the case. The prosecution is not bound or concluded by them. (Lowenberg v. People, 5 Park., 414.)

Statements made in the presence of the prisoner, are, in the absence of other proof, to be presumed to have been made in his hearing. (Hockreiter v. People, 1 Keyes, 66.)

Statements of a defendant, pertinent to the issues, are competent evidence against him, of the facts stated; but such statements are not competent to discredit the statements of a witness for the defendants. (New York Guardian, &c., Co. v. Gleason, 78 N. Y., 504.)

as evidence, but rather in aid of the memory of the court and jury. (a) The Revised Statutes may be read in evidence in all courts

(a) Arch. Cr. Ev., 125.

Evidence that the accused, when charged with the offense, or when declarations touching his guilt were made in his presence and hearing, remained silent when it would have been proper for him to speak, is competent. And it is no objection to the evidence that the accused was, at the time, under arrest. (Kelley v. People, 55 N. Y., 565.) The accused, however, is only called upon to deny statements of the truth or falsity of which he has personal knowledge. To make such evidence admissible, it must be of such statements (Id.) On a trial for grand larceny, evidence was received, that after the arrest of the defendants, the prosecutor went to their place of custody, to identify them; that he did identify them, and charged them with participating in the offense, stating the part each took, and describing the money stolen; to which the prisoners made no reply. Upon one of the prisoners was found two parcels of money, one answering the description given by the prosecutor. The prisoner requested that the two parcels should be kept separate, as the other wasbar-money." Held that the evidence was competent, as an implied acquiescence, on the part of the accused, in the truth of the prosecutor's statements. (Id.) Admissions and declarations of third persons, on the trial of an indictment for perjury, when competent as part of the res gesta. (See Eighmy v. People, 79 N. Y., 546.)

Declarations of the prisoner, made shortly after the act, of his want of memory of the transaction, are not admissible. (People v. Montgomery, 13 Ab. Pr. [N. S.], 209.) And declarations made by him at the time an offense is committed, may be given in evidence in his favor, as part of the res gesta; but not those made subsequently. (Rebetaille's Case, 5 C. H. Rec., 171.) On a trial for murder, declarations of the deceased, made some weeks before his death, that he had no money, are not admissible as proof of that fact. (Kennedy v. People, 39 N. Y., 245; S. C., 6 Ab. Pr. [N. S.], 147.)

Evidence of what the prisoner said to a policeman, the day after being arrested for the offense, is inadmissible; such declarations being no part of the res gesta. (Real v. People, 55 Barb., 551.)

Where there is sufficient evidence to justify the conclusion that different persons, charged with a crime, were all acting with a common purpose and design, although it does not appear that there had been a previous combination or confederacy to commit the particular offense, yet the acts and declarations of each, from the commencement to the consummation of the offense, are evidence against the others. (Kelley v. People, 55 N. Y., 565.)

Where the question to be determined by the jury is the sanity of a person, both the acts and declarations of the person are evidence for the purpose of ascertaining the state of mind of the actor. (Lake v. People, 1 Park., 495.) Thus where, on a trial for murder, the defense set up is insanity, evidence may be received of the acts and declarations of the accused, as well before and after, as at the time of the homicide. (Id.)

To make the acts and declarations of an alleged confederate competent evidence against a prisoner, such evidence must be given as to prove prima facie, that the two had conspired together to commit the offense charged, so as to make that question one proper for the determination of the jury. (Ormsby v. People, 53 N. Y., 472.) Threats.]-On the trial of an indictment for murder, against the keeper of a house of ill fame, evidence of previous threats by persons who had broken into the house on a former occasion, is admissible, to show the grade of the offense. (People v. Rector, 19 Wend., 569.) On the trial of an indictment for aiding and abetting the commission of a murder, the prisoner may show that he had heard previous threats against the person who committed the homicide, by persons who had, a short time before, taken the latter out of his house, by night, and done him violence. (Temple v. Lane, 4 Lans., 119) On the trial of an indictment for an attempt to murder by poisoning, evidence is admissible of threats on the part of the prisoner to injure the deceased by other means-as by a "slung-shot" -as tending to show the animus of the prisoner towards the deceased. (Le Beau v. People, 34 N. Y., 223; S. C., 6 Park., 371; 33 How., 66.)

On a trial for murder, evidence of violent threats, made by the deceased against