Wyer v. Dorchester, &c. Bank, ubi supra. But where the action is by the holder of a bank-bill, and the defendant proves it to have been stolen, the plaintiff is not bound to show how he came by the bill, to enable him to recover upon it, but the defendant, to defeat the plaintiff's right to recover upon it, must show that he received it under such circumstances as to prevent the maintenance of his action. Wyer v. Dorchester, &c. Bank, ubi supra; Solomons v. Bank of England, 13 East, 135, n.; De la Chaumette v. Bank of England, 2 Barn. & Adolph. 385. And see post, vol. ii. § 172. When goods are obtained from their owner by fraud, the burden of proof is upon one who claims under the fraudulent purchaser to show that he is a bona fide purchaser for value. Haskins v. Warren, 115 Mass. 514. § 81 b. It would seem to be the true rule in criminal cases, though there are some decisions to the contrary, that the burden of proof never shifts, but that it is upon the government throughout; and that in all cases, before a conviction can be had, the jury must be satisfied, upon all the evidence, beyond a reasonable doubt, of the affirmative of the issue presented by the government; to wit, that the defendant is guilty in manner and form as charged in the indictment. The opinion of the court, by Bigelow, J., in the case of Commonwealth v. McKie, 1 Gray, 61-65, contains an acceptable and very able exposition of the general rule of law as to the burden of proof in criminal cases, but it is too extensive to be here inserted. § 81 c. Although the above decision is carefully limited to that precise case, yet it would seem that its principle would cover all cases, including those in which the defendant relies on some distinct substantive ground of defence not necessarily connected with the transaction on which the indictment is founded, as insanity for instance. For in every case the issue which the government presents is the guilt of the defendant, and to prove this the jury must be satisfied not only that the defendant committed the act constituting the corpus delicti, but also that, at the time of the commission thereof, he had intelligence and capacity enough to have a criminal intent and purpose; because, "if his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not punishable for criminal acts." By Shaw, C. J., in Commonwealth v. Rogers, 7 Met. 501; see Commonwealth v. Hawkins, 3 Gray, 465; 1 Bennett & Heard's Lead. Crim. Cas. 87, note to Commonwealth v. Rogers, and p. 347, note to Commonwealth v. McKie. And if the burden is on the government thus to satisfy the jury, it is difficult to see why the rule of proof beyond a reasonable doubt does not apply; and why a reasonable doubt of the insanity of the defendant should not require the jury to acquit. In the more recent case of Commonwealth v. Eddy, 7 Gray, 583, which was an indictment against the defendant for the murder of his wife, and in which the insanity of the defendant was pressed to the jury as a defence, the court instructed the jury in substance that the burden of proof was on the government throughout, and did not shift; although, so far as the sanity of the defendant was concerned, the burden was sustained by the legal presumption that all men are sane, which presumption must stand until rebutted by proof to the contrary, satisfactory to the jury. Subsequently in Pomeroy's case (117 Mass. 143), although it was intimated that Com. v. Eddy was not a binding authority, but only the opinion of three judges, the court held the following language: "The burden is upon the government to prove every thing essential beyond reasonable doubt; and that burden, so far as the matter of insanity is concerned, is ordinarily satisfactorily sustained by the presumption that every person of sufficient age is of sound mind and understands the nature of his acts. But when the circumstances are all in, on the one side going to show a want of adequate capacity, on the other side going to show usual intelligence, the burden rests, where it was in the beginning, upon the government to prove the case beyond reasonable doubt." See also State v. Pike, 49 N. H. 395; State v. Jones, 50 N. H. 370. And this perhaps is the prevailing opinion. People v. Garbutt, 17 Mich. 9; State v. Crawford, 11 Kan. 32. But it does not seem to be accepted in New York (Flanagan v. People, 52 N. Y. 467), where it is held that insanity must be proved by a preponderance of evidence, and it is not sufficient for the prisoner to raise a doubt. And the law in Pennsylvania substantially accords with that of New York. Lynch v. Com., 77 Pa. St. 205; Ortwein v. Com., 76 Pa. St. 414. The cases on this subject are very fully collected and stated in a note to State v. Crawford, Sup. Ct. Kansas, 23 Am. L. Reg. N. 8. 21. And see also Wharton's Hom. § 666; post, vol. iii. § 5. Where liquors are not by law vendible without a license, the presumption that the defendant has no license is sufficient proof of the case for the prosecution to call upon the defendant to rebut it. Bliss v. Brainard, 41 N. H. 256; ante, § 79, n. ; Wheat v. State, 6 Mo. 455. On an indictment for perjury for falsely swearing to ownership in a certain house, it was intimated that, on proof of prior ownership by the wife of the defendant, the presumption that she continued to own it sufficiently proved the negative for the government. Com. v. Hatfield, 107 Mass. 227. If a prisoner pleads that he was under the age of presumed capacity, the burden of proof is upon him. State v. Arnold, 13 Ired. (N. C.) Law, 184. In Com. v. Choate (105 Mass. 452), it was held that where an alibi was set up, a charge to the jury that when the defendant wished them to take as an affirmative matter of fact proved, that he was at a certain place at a certain time, the burden of proof was upon him, and, if he failed to sustain the burden, they could not consider it as a fact proved; but that the burden was upon the government to show the defendant's presence at the commission of the crime, and on that question they were to consider all his evidence tending to prove an alibi, and if on all the evidence they entertained a reasonable doubt as to his presence they should acquit,—was unobjectionable. But in Pennsylvania it has been held, as in the insanity cases above cited, that it is not enough for the defendant to raise a doubt. Fife v. Com., 29 Pa. St. 439. When a party drives over a person in the street and kills him, and is indicted for manslaughter, the government need not show negligence on the part of the accused; but, on proving the killing, the accused may be called upon to show that he used due care. Reg. v. Cavendish, 8 Irish (C. L.) 178 (Ct. for Cr. Cases reserved), O'Brien, J., dissenting. In an action against a carrier for injuries resulting from his negligence, proof of the injury is prima facie proof of negligence, and throws on the carrier the burden of disproving it. Tennery v. Pippinger, 1 Phila. 543; Ware v. Gay, 11 Pick. (Mass.) 106. In criminal cases, where the defendant justifies, the proof of justification must be by a preponderance of evidence. People v. Schryver, 42 N. Y. 1. CHAPTER IV. OF THE BEST EVIDENCE. § 82. Best evidence required. A fourth rule, which governs in the production of evidence, is that which requires the best evidence of which the case in its nature is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any 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 better evidence is withheld, it is fair to presume that the party had some sinister motive for not producing it, and that, if offered, his design would be frustrated.1 The rule thus becomes essential to the pure administration of justice. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes only that evidence which itself indicates the existence of more original sources of information. But where there is no substitution of evidence, but only a selection of weaker, instead of stronger proofs, or an omission to supply all the proofs capable of being produced, the rule is not infringed. Thus, a title by deed must be proved by the production of the deed itself, if it is within the power of the party; for this is the best evidence of which the case is susceptible; and its non-production would raise a presumption that it contained some matter of apparent defeasance. But, being produced, the execution of the deed itself may be proved by only one of the subscribing witnesses, though the other also is at hand. And even the previous examination of a deceased subscribing witness, if admissible on other grounds, may 1 "Falsi præsumptio est contra eum, qui testibus probare conatur id quod instrumentis probare potest." Menoch. Consil. 422, n. 125. 2 Phil. & Am. on Evid. 438; 1 Phil. Evid. 418; 1 Stark. Evid. 437; Glassford on Evid. 266-278; Tayloe v. Riggs, 1 Peters, 591, 596; United States v. Reyburn, 6 Peters, 352, 367; Minor v. Tillotson, 7 Peters, 100, 101 [Shoenbergher v. Hackman, 37 Penn. St. 887]. § 85. Substitution of oral for written evidence. The cases which most frequently call for the application of the rule now under Hall v. Ball, 3 Scott, N. R. 577. And in the more recent case of Doe d. Gilbert v. Ross, in the Exchequer, where proper notice to produce an original document had been given without success, it was held that the party giving the notice was not afterwards restricted as to the nature of the secondary evidence he would produce of the contents of the document; and, therefore, having offered an attested copy of the deed in that case, which was inadmissible in itself for want of a stamp, it was held that it was competent for him to abandon that mode of proof, and to resort to parol testimony, there being no degrees in secondary evidence; for when once the original is accounted for, any secondary evidence whatever may be resorted to by the party seeking to use the same. See Doe v. Ross, 8 Dowl. 389; s. c. 7 M. & W. 102; Doe v. Jack, 1 Allen, 476, 483. The American doctrine, as deduced from various authorities, seems to be this, that if, from the nature of the case itself, it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it; but that, where the nature of the case does not of itself disclose the existence of such better evidence, the objector must not only prove its existence, but also must prove that it was known to the other party in season to have been produced at the trial. Thus, where the record of a conviction was destroyed, oral proof of its existence was rejected, because the law required a transcript to be sent to the Court of Exchequer, which was better evidence. Hilts v. Colvin, 14 Johns. 182. So, a grant of letters of administration was presumed after proof, from the records of various courts, of the administrator's recognition there, and his acts in that capacity. Battles v. Holley, 6 Greenl. 145. And where the record books were burnt and mutilated, or lost, the clerk's docket and the journals of the judges have been deemed the next best evidence of the contents of the record. Cook v. Wood, 1 McCord, 139; Lyons v. Gregory, 3 Hen. & Munf. 237; Lowry v. Cady, 4 Vermont, 504; Doe v. Greenlee, 3 Hawks. 281. In all these and the like cases, the nature of the fact to be proved plainly discloses the existence of some evidence in writing, of an official character, more satisfactory than mere oral proof; and therefore the production of such evidence is demanded. Such, also, is the view taken by Ch. B. Gilbert. See Gilb. Evid. by Lofft, p. 5. See also Collins v. Maule, 8 C. & P. 502; Everingham v. Roundell, 2 M. & Rob. 138; Harvey v. Thomas, 10 Watts, 63. [In Harvey v. Thorpe, 28 Ala. 250, the American rule is preferred to the English. In Carpenter v. Davies, 10 Ind. 129, it is held that there are no degrees in the same class of secondary evidence.] But where there is no ground for legal presumption that better secondary evidence exists, any proof is received which is not inadmissible by other rules of law; unless the objecting party can show that better evidence was previously known to the other, and might have been produced; thus subjecting him, by positive proof, to the same imputation of fraud which the law itself presumes, when primary evidence is withheld. Thus, where a notarial copy was called for, as the best evidence of the contents of a lost note, the court held, that it was sufficient for the party to prove the note by the best evidence actually in his power; and that to require a notarial copy would be to demand that of the existence of which there was no evidence, and which the law would not presume was in the power of the party, it not being necessary that a promissory note should be protested. Renner v. the Bank of Columbia, 9 Wheat. 582, 587; Denn v. McAllister, 2 Halst. 46, 53; United States v. Britton, 2 Mason, 464, 468. But where it was proved that a copy existed of a note, he was held bound to prove it by the copy. 2 Mason, 468. But if the party has voluntarily destroyed the instrument, he is not allowed to prove its contents by secondary evidence, until he has repelled every inference of a fraudulent design in its destruction. Blade v. Noland, 12 Wend. 173. [See also ante, § 37. And the introduction of weaker secondary evidence, when better might be produced, gives rise to unfavorable inferences. Mordecai v. Beal, 8 Porter (Ala.), 529; Bailey v. McMeckle, 9 Cal. 430; Schoenberger v. Hackman, 37 Pa. St. 887.] Where the subscribing witness to a deed is dead, and his handwriting cannot be proved, the next best evidence is proof of the handwriting of the grantor, and this is therefore required. Clark v. Courtney, 5 Peters, 319. But in New York, proof of the handwriting of the witness himself is next demanded. Jackson v. Waldron, 13 Wend. 178. See infra, § 575. But where a deed was lost, the party consideration, are those which relate to the substitution of oral for written evidence; and they may be arranged into three classes: including in the first class those instruments which the law requires should be in writing; in the second, those contracts which the parties have put in writing; and in the third, all other writings, the existence of which is disputed, and which are material to the issue. § 86. Where the law requires written evidence. In the first pace, oral evidence cannot be substituted for any instrument which the law requires to be in writing; such as records, public documents, official examinations, deeds of conveyance of lands, wills other than nuncupative, promises to pay the debt of another, and other writings mentioned in the Statute of Frauds. In all these cases, the law having required that the evidence of the transaction should be in writing, no other proof can be substituted for that, as long as the writing exists, and is in the power of the party. claiming under it was not held bound to call the subscribing witnesses, unless it could be shown that he previously knew who they were. Jackson v. Vail, 7 Wend. 125. So it was ruled by Lord Kenyon, in Keeling v. Ball, Peake's Evid. App. lxxviii. In Gillies v. Smither, 2 Stark. 528, this point does not seem to have been considered; but the case turned on the state of the pleadings, and the want of any proof whatever that the bond in question was ever executed by the intestate. [This rule of evidence does not require proof of the loss of the primary evidence beyond possibility of mistake, but only to a moral certainty. Mr. Justice Campbell in United States v. Sutter, 21 How. (U. S.) 170, 175. If by "moral certainty "is meant, as in criminal cases, "beyond reasonable doubt," this case is more strict than the general current of the authorities. Reasonable proof, stronger or weaker, according to the circumstances, seems to be all that is required. Boulden v. Massie, 7 Wheat. (U. S.) 122; Minor v. Tillotson, 7 Pet. (U. S.) 99; Wing v. Abbott, 28 Maine, 367; Waller v. School Dist., 22 Conn. 326; Carr v. Minner, 42 Ill. 179. See also post, § 558. In Cornet v. Williams, 20 Wall. (U. S.) 226, the court, after saying that they do not adopt the English rule, that there are no degrees in secondary evidence, observe that the rule of exclusion or admission must be so applied as to promote the ends of justice, and guard against fraud, sur prise, and imposition. The idea is sug gested in a case in New York (Hubbard v. Russell, 24 Barb. 404), that two letters written at the same time to the same person, one being the exact counterpart of the other, may both be regarded as originals; and where one is sent, and the other retained, that the latter may be given in evidence without notice to produce the other. That might be true if the fact to be proved were merely the writing of the letters. But where, as is commonly the case, the point to be reached is the sending or receipt of the letter to or by another, a letter not sent could only be used as a copy. And if the letter sent was in fact a copy of that retained, it would, by the fact of being used for that purpose, become the origi nal. In Durkee v. Vermont Central Railway, 29 Vt. 127, it is held, that, where a telegraphic communication is relied on to establish a contract, it must be proved as other writings are, by the production of the original. If that is lost, it may be proved by a copy if there is one, and, if there is not, by oral testimony respecting it. The original, where the person to whom it is sent takes the risk of its transmission, or is the employer of the telegraph, is the message delivered to the operator. But where the person sending the message takes the initiative, so that the telegraph is to be regarded as his agent, the original is the message actually delivered at the end of the line.] |