Commitment:-For that one C. D. on- at, being lawfully in custody of one E. F. a constable, in order to carry him the said C. D. to gaol, under and by virtue of a warrant of G. H. esquire one of Her Majesty's justices of the peace in and for the county of ・for having feloniously stolen the goods of I. K., he the said A. B. feloniously and unlawfully did then and there assist the said C. D. in attempting to escape from the custody of the said E. F.; against the form of the statute in such case made and provided. And you the said keeper, &c.

See further upon this subject, post, titles " Prison Breaking" and "Rescue."

Punishment of officers allowing escape.] If a constable, gaoler or other officer, having a prisoner in lawful custody, allow him to escape, it is either through negligence, or done intentionally; which latter is technically termed a voluntary escape. A negligent escape is a misdemeanor, and punishable with fine, or imprisonment, or both. A voluntary escape is punishable in like manner as a misdemeanor, whether the party escaping were guilty or not of the offence imputed to him; 2 Hawk. c. 19, 3. 26; but if he be retaken and convicted, then the offence of the officer in allowing him to escape, is punishable in the same manner as the offence of which the party was convicted, and is of the same degree, whether treason, felony or misdemeanor, 2 Hawk. c. 19, s. 22. In order, however, to constitute an escape of either kind, punishable as above-mentioned, there must have been an actual arrest of the party, justifiable in point of law, 2 Hawk. c. 19, s. 2, and upon a criminal charge. Id. s. 3.

In the same manner if a private person arrest a man for an offence, in cases where by law he may do so, if he allow such person to escape, before he hands him over to the custody of the constable or other officer, (see ante, p. 120), he is in like manner punishable for it. 22 Hawk. c. 20, s. 2, 6.

Commitment:-on- at — having one C. D. in his custody, under and by virtue of a warrant of G. H. esquire one of Her Majesty's justices of the peace in and for the county of for having feloniously stolen the goods of E. F., did unlawfully and [negligently or voluntarily] permit the said C. D. to escape and go at large. And you the said keeper, &c.

Escape of prisoners of war.] If any person shall knowingly and wilfully aid or assist a prisoner of war to escape, he shall be deemed guilty of felony, and shall be transported for life, or for not less than seven years. 52 G. 3, c. 156, s. 1. See R. v. Martin, R. & Ry. 196.

Other escapes.] As to escaping from prison, or aiding a prisoner to do so, see "Prison Breaking,"

As to the escape of convicts under sentence of transportation, or aiding them to escape, or rescuing them from the custody of persons removing them,-see "Transportation."

ESTREAT.

See" Recognizance."

EVIDENCE.

1. What must be proved.

The facts constituting the offence, &c. p. 332.
Intent, p. 333.

Malice, p. 333.

Guilty Knowledge, p. 333.

Time, place, &c. p. 334.

2. The manner of proving it, p. 334.

By confessions, p. 334.

By presumptions, p. 334.
By proofs, p. 336.

3. Written evidence, p. 337.

Acts of parliament, p. 337.
Other records, p. 337.

Matters, quasi of record, p. 338.

Depositions of deceased witnesses, p. 338.

Other public documents, p. 338.

Deeds and other private instruments, p. 338.

4. Parol evidence, p. 339.

In what cases, p. 339.

Who may be witnesses, p. 340.
Number required, p. 342.

How compelled to attend, p. 342.
Their expenses, p. 342.

1. What must be proved.

The facts constituting the offence, &c.] Offences at common law, are defined by the rule of the common law relating to them; offences by statute, are defined by the statute creating them. In both cases, every thing stated in the definition of

the offence, is material, and must be proved. On the other hand, if any thing stated in an information or indictment &c., be not included in the definition of theoffence, it may be rejected as surplusage, and need not be proved. R. v. Wm. Jones, 2 B. & Ad. 611. In the same manner, the facts constituting a legal defence, must be proved.

Intent.] The intent with which an act is done, often forms a part, and a most material part, of the definition of an offence, and must be proved accordingly. This does not admit of positive proof; it can be proved only by the confession of the party, or by proving facts from which it may fairly be inferred.

Malice.] Malice often forms a material part of the definition of an offence, and must be proved: but this, like intent, can only be proved by the confession of the party, or by the proof of facts from which it may be inferred. It may often be inferred from the facts of the case alone: for instance, if a man without any apparent motives wilfully do an act which must necessarily be injurious to another, we are warranted in saying that he did it maliciously, unless he prove the contrary. Where the offence is committed in respect to inanimate things, the malice, if inferred, must of course be deemed to be malice towards the owner; but if committed with respect to animals, it may possibly be from malice to the animal, and not to the owner. There were formerly some nice distinctions taken upon this subject, with respect to some of the offences now punishable under one of Peel's acts (7 & 8 G. 4, c. 30) relating to malicious injuries; but it is provided by that statute, "that every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise. 7 & 8 G. 4, c. 30, s. 25.

Guilty knowledge.] A guilty knowledge of some particular fact, sometimes forms a material ingredient in an offence, and must of course be proved: such for instance, as uttering a forged instrument, knowing it to be forged; receiving stolen goods, knowing them to have been stolen; and the like. And this guilty knowledge, like intent and malice, can be proved only from the party's confession, or by proving facts from which it may be inferred. Where a man was charged with uttering a forged bill of exchange, knowing it to be forged, evidence that he gave a false account as to the parties to it, and that when he was apprehended he had other forged bills in his possession, was received in proof of his guilty knowledge that

the first bill was forged. R. v. Haugh, R. & Ry. 120. So, that he had previously uttered other forged notes of the same description, would be good evidence of it. R. v. Ball, R. & Ry. 132. So, upon a charge of uttering counterfeit coin, knowing it to be counterfeit, the guilty knowledge may be inferred from the party's having other base coin in his possession at the time, or having passed other base money about the time, or the like. See 2 Arch. P. A. 247, &c. So upon a charge of receiviug stolen goods, knowing them to have been stolen, evidence that the party had at other times received goods from the same party, under suspicious circumstances, R. v. Dunn & Smith, Ry. & M. 146, or that he concealed the goods, or bought them for a price much under their value, or the like, may be received in proof of his guilty knowledge that they had been stolen.

Time and Place.] The time at which an offence is charged to have been committed, unless it be of the essence of the offence, need not be proved as laid; a variance in this respect is wholly immaterial.

So, if an offence be charged to have been committed at a particular place within the county or other jurisdiction of the magistrate or court, and it be proved to have been committed at some other place within the same jurisdiction, the variance will be wholly immaterial, unless the place be laid as matter of local description.

2. The manner of proof.

By confessions.] A confession of an offence, by the party charged with it, if obtained without any inducement holden out to him, by threat or promise of favour, is always receivable in evidence against him, and is often the strongest evidence that can be given. This subject has already been fully treated of, ante, p. 233-235. It is immaterial whether the confession be made before commitment, or at the time, or after it, or, in the case of summary convictions, whether it be made before or at the time of the hearing.

By presumptions.] A presumption is, where some facts being proved, another follows as a natural or very probable conclusion from them, so as readily to gain assent from the mere probability of its having occurred. Arch. Pl. & Ev. civ. act. 362, 363. The fact there assented to, is said to be presumed; that is, taken for granted, until the contrary be proved by the opposite party: stabitur præsumptioni donec probetur in contrarium. Co. Lit. 373. And it is adopted the more readily, in proportion to the difficulty of proving the fact by positive

evidence, and to the obvious facility of disproving it, or of proving facts inconsistent with it, if it really never occurred. These presumptions are of three kinds: violent presumptions, where the facts and circumstances proved, necessarily attend the fact presumed; probable presumptions, where the facts and circumstances proved, usually attend the fact presumed; and light or rash presumptions, which, however, have no weight or validity at all. For instance, in larceny, if the stolen goods be found in the possession of a person, shortly after the stealing of them, and he give no satisfactory account of the manner in which he came by them, it is presumed that he is the person who stole them; and if to this be added evidence that the goods, when found, were concealed or disguised, or that the prisoner when charged with the offence absconded, it will very much strenghten the presumption. On the other hand, if the goods be not found for a considerable time after they were stolen, the presumption is proportionably weakened.

Under this head is classed that very usual mode of proving offences, adopted from necessity, called circumstantial evidence. Direct and positive evidence of the commission of offences, cannot in all cases be procured; they are often committed in secret, and if circumstantial evidence were excluded by our law, all secret offences might be committed with impunity. Circumstantial, or (as it is frequently termed) presumptive evidence, therefore, is allowed in all cases where direct and positive evidence of the defendant's having committed the offence cannot be procured; and it is often as satisfactory as direct and positive evidence.

Under this head also, might be classed the proof of intent, malice, and guilty knowledge, which we have already considered, ante, p. 333.

Also, upon an indictment against any person, exercising an office, profession or employment, for a criminal act done by him as such officer, &c., proof that he acted as such officer, &c., will raise the presumption that he was duly appointed, and his appointment therefore need not be proved. See 6 T. R. 535 n. 4T. R. 366, per Buller, J. 1 Stark. 405. Peake, 236. So in proof of offences against officers, as for instance, peace officers, per Buller, J. in Berryman v. Wise, 4 T. R. 366, or officers, &c. employed in the prevention of smuggling, 3 & 4 W. 4, c. 53, s. 118, or the like, proof of their having acted as such, will be deemed sufficient evidence of their being such, without proving their appointment. And the same in other cases, where it becomes a question whether a person, acting as a public officer, was so at the time; R. v. Jones, 2 Camp. 131; for it is a general presumption of law, that a person acting in a public capacity, is duly authorized so to do. Per Ld. Ellenborough, C. J. 3 Camp. 433, 432.