Oct. 11, 1862, $ 662.

Direct evi

2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and, 3. For the production of legal evidence;

4. For the exclusion of whatever is not legal;

5. For determining in certain cases the value and effect of evidence.

§ 667. [657.] The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

§ 668. [658.] There are four kinds of evidence:1. The knowledge of the court;

2. The testimony of witnesses;

3. Writings;

4. Other material objects presented to the senses.
§ 669. [659.] There are several degrees of evidence:-
1. Original and secondary;

2. Direct and indirect;

3. Primary, partial, satisfactory, indispensable, and conclusive.

§ 670. [660.] Original evidence is an original writing or material object introduced in evidence.

Original evidence. This is known among the writers as primary evidence, and the primary evidence

of this code, § 674 [664], is known as prima facie evidence.

§ 671. [661.] Secondary evidence is a copy of such original writing or object, or oral evidence thereof.

Secondary evidence will not be admitted, unless it is shown that it is out of the party's power to produce original evidence: Sebree v. Dorr, 6 Wheat. 558; Hart v. Yunt, 1 Watts, 253; but it is held that secondary

evidence is admissible where no objection is raised: Goode v. Smith, 13 Cal. 81; Braly v. Reese, 51 Id. 447.

Proof of contents of instrument: See § 691 [681], post.

§ 672. [662.] Direct evidence is that which proves the fact in dispute directly, without an inference or predence defined. sumption, and which in itself, if true, conclusively estab

lishes that fact. For example: if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it is direct.

663.

Indirect evi

§ 673. [663.] Indirect evidence is that which tends Oct. 11, 1862, to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively estab- dence defined. lish that fact, but which affords an inference or presumption of its existence. For example: a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred. Indirect evidence: See title 7, post.

$ 664.

Primary evi

§ 674. [664.] Primary evidence is that which suffices Oct. 11, 1862, for the proof of a particular fact until contradicted and overcome by other evidence. For example: the certifi- dence defined. cate of a recording officer is primary evidence of a record; but it may be afterwards overcome upon proof that there is no such record.

17 Or. 88.

$665.

Partial evi

§ 675. [665.] Partial evidence is that which goes to es- Oct. 11, 1862, tablish a detached fact, in a series tending to the fact in dispute. It may be received, subject to be rejected as dence defined. incompetent, unless connected with the fact in dispute, by proof of other facts. For example: on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be afterwards connected. with the main fact in dispute.

$666. Satisfactory

§ 676. [666.] That evidence is deemed satisfactory oct. 11, 1862, which ordinarily produces moral certainty or conviction in an unprejudiced mind. Such evidence alone will evidence justify a verdict. Evidence less than this is denominated insufficient evidence.

defined.

§ 677. [667.] Indispensable evidence is that without Id., § 667. which a particular fact cannot be proved.

Indispensable evidence

Id., § 668.
Conclusive

§ 678. [668.] Conclusive or unanswerable evidence defined. is that which the law does not permit to be contradicted. For example: the record of a court of competent juris- evidence diction cannot be contradicted by the parties to it.

defined. Id., § 669.

§ 679. [669.] Cumulative evidence is additional evi- Cumulative dence of the same character to the same point.

§ 680. [670.] Corroborative evidence is additional evidence of a different character to the same point.

evidence defined. Id., $670.

Corroborative evidence

defined.

§ 683.
§ 684.

TITLE I.

OF THE GENERAL PRINCIPLES OF EVIDENCE.

§ 681. One witness sufficient to prove a fact.

§ 682.

Testimony confined to personal knowledge, and upon oath or affirma tion.

Witness presumed to speak the truth. How presumption overcome. One person not prejudiced by the acts of another, unless by virtue of a particular relation.

§ 689.

Declarations of deceased persons, when evidence against his successor in interest.

§ 690.

When part of a transaction proved the whole is admissible.

§ 691.

Contents of a writing, how proved.

§ 692.

An agreement reduced to writing to be deemed to include all its

terms.

§ 693. Construction of language relates to place where instrument executed unless otherwise expressed.

§ 694.

Construction of statutes and instruments; general rule.

§ 695.

§ 696.

§ 697. Terms of a writing to be construed in their general acceptation unless shown otherwise.

Intention to govern particular provisions to control general one.
In the construction of an instrument the circumstances under which
it was made may be considered.

§ 699.

Persons may testify to decipher characters or to translate language unknown to the court.

Evidence confined to material allegations. When court may allow inquiry as to a collateral fact.

Oct. 11, 1862, § 671.

Direct evidence of one witness sufficient.

§ 705. Affirmative allegation only to be proved unless negative essential to cause of action or defense.

§ 706. Facts which may be proved on trial.

§ 681. [671.] The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact except usage, perjury, and

$672.

Testimony

§ 682. [672.] A witness can be heard only upon oath oct. 11, 1862, or affirmation, and he can testify of those facts only which he knows of his own knowledge, that is, which confined to personal are derived from his own perceptions; except in those knowledge. few express cases in which his opinions or inferences, or the declarations of others, are admissible.

Oath. Every court, judge, clerk of a court, or justice of the peace, or notary public is authorized to administer oaths: See § 871 [861].

Hearsay evidence inadmissible: See Mima Queen v. Hepburn, 7 Cranch, 290; Davis v. Wood, 1 Wheat. 6. The rule as to inadmissibility of hearsay evidence has been relaxed so as to admit (on the ground of absence of better evidence, and from the nature and necessity of the case) hearsay evidence of matters of public and general interest: Price v. Cunell, 6 Mees. & W. 234; Noyes v. White, 19 Conn. 250; of ancient possessions and documents: § 706 [696], pos'; Bishopv. Marquis of Winchester, 2 Bing. N. C. 183; Barr v. Gratz, 4 Wheat. 213; Jackson v. Laroway, 3 Johns. Cas. 383;

of declarations against interest: Bird
v. Heuston, 10 Ohio, 418; or of dying
declarations:
Rex v. Woodcock, 2
Leach Cr. Cas. 256: Brown v. Com-
monwealth, 73 Pa. St. 321; Robbins v.
State, 8 Ohio St. 131.

A witness is not allowed to give in
evidence his understanding of a con-
versation; but if given, and subse-
quent facts prove it to be correct,
judgment will not be reversed, though
it was error to admit such evidence:
Aikin v. Leonard, 1 Or. 224.

Opinion and expert evidence: See § 706 [696], post. The opinion of a witness not having personal knowledge of facts in a case is inadmissible except on questions of skill or science: Zachary v. Swanger, 1 Or. 92.

$673.

Witness pre

truth.

§ 683. [673.] A witness is presumed to speak the oct. 11, 1862, truth. This presumption, however, may be overcome by the manner in which he testifies, by the character of sumed to speak his testimony, or by evidence affecting his character or motives, or by contradictory evidence; and where the 15 Or. 250. trial is by the jury, they are the exclusive judges of his credibility.

ness.

Presumption in favor of wit- The jury are to judge of the credibility of a witness: State v. Swayze, 11 Or. 357; but in doing so, they are to presume that he speaks the truth. Whether this presumption is overcome is a question of fact for the jury. The court acted correctly

in refusing to instruct the jury: "A
witness who has been convicted of
the crime of burglary, and served out
a term of imprisonment for such
crime, is not entitled, as a witness, to
full credit at your hands": People v.
McLane, 60 Cal. 412.

$ 674.

§ 684. [674.] The rights of a party cannot be preju- Oct. 11, 1862, diced by the declaration, act, or omission of another, except by virtue of a particular relation between them. prejudiced by

Declarations of one not a party to the record, and having no connection with the controversy, are hearsay and inadmissible: Wells v. Adams, 7 Col. 26.

Husband and wife. — Among the

particular relations here mentionel is
that of husband and wife. The de-
clarations of one are sometimes ad-
missible in a suit against the other:
See Poole v. Gerrard, 9 Cal. 593;
Jewell v. Jewell, 1 How. 219.

When person

another's acts.

16 Or. 556.

Oct. 11, 1862, $674.

Oct. 11, 1862, 675.

Acts of prede

§ 685. [675.] Where, however, one derives title to real property from another, the declaration, act, or omiscessor in title sion of the latter, while holding the title, in relation to the property, is evidence against the former.

evidence.