135 *CHAPTER II. [ *112 ] THE MANNER OF PROVING THE MATTERS PUT IN ISSUE. EVIDENCE may be classed under three heads; admissions or confessions, presumptions, and proofs. These we shall consider fully in the several sections of this chapter. But before we enter into a particular consideration of the subject, it may be necessary first to notice one or two rules relating to evidence generally. First, it is a general rule, that the best evidence the nature of the case will admit of must be produced, if it be possible to be had; but if not possible, then the next best evidence that can be had shall be allowed. For if it appear that there is any better evidence existing than that which is produced, the very non-production of it creates a presumption, that, if produced, it would have detected some falsehood which at present is concealed, 3 Bl. Com. 368; Gilb. Ev. 16; R. v. James, 1 Show. 397; Carth. 220; Holt, 284; 4 Salk. 281: Williams v. E. I. Company, 3 East, 192. Therefore, before secondary evidence is offered, a fourdation for it must first be laid, by proving that the better evidence cannot be obtained. Thus, for instance, the best evidence of the contents of a deed or other written instrument is the written instrument itself; secondary evidence, a copy, or parol evidence of the contents of the original. Therefore, before a copy of a written instrument, or parol evidence of it contents, can be received as proof, the absence of the origiginal instrument must be accounted for, by proving that it is lost or destroyed, or that it is in the possession of the opposite party. The declarations of the opposite party, however, are always receivable in evidence against him, although they relate to the contents of a deed, or other written instrument, and even though its contents be directly in issue in the suit. Slatterie. Pooley, 6 M. & W. 664: Howard v. Smith, 3 Scott's N. R. 574. Records, however, are apparently an exception to this rule, for they are proved by exemplifications or other copies, in all cases, unless they be records of the court in which they are to be produced, and the matter of record form the gist of the pleading to be proved. See 1 Camp. 469; 2 Camp. 399; 1 C. & P. 578. This exception has been adopted from necessity; to require the record itself to be given in evidence would be productive of great inconvenience, for it probably might be wanted for that purpose in several parts of the kingdom at the same time; besides, by removing it from the place in which it was deposited, there would necessarily be great danger of its being lost. Gilb. Ev. 7, 8. For the same reasons, journals of the House of Lords or House of Commons,a bill, answer, depositious, and decree in equity, in most cases,-libel, answer, depositions, &c., in the ecclesiastical and admiralty courts, in most cases, the rolls of a court baron, and other inferior courts-parish registers entries in corporation books, or the books of public companies, relating to things public and general,-may all be proved by copies. [ *113 ] *When the copy of a document, (the document itself not being evidence at commou law), is made evidence by an act of Parliament, a copy must be produced; the original is not made admissible evidence by implication. Bourdon v. Ricket, 2 Camp. 121, π. Where a written instrument is in the hands of the opposite party, it is necessary to serve him or his attorney with a notice to produce it; and if he do not produce it at the trial, in pursuance of the notice, then, upon proving the service of the notice, you will be allowed to give secondary evidence of its contents. The rule in this respect is the same in criminal as in civil cases; Attorney-General v. Le Merchant, 2 T. R. 201; and the notice must be served a reasonable time before the trial. If served during the assizes, two days before the trial, it has been held insufficient to let in secondary evidence. R. v. Ellicombe, 1 M. & Rob. 260: see Trist v. Johnson, Id. 259. But in cases where the nature of the pleading gives sufficient notice to the defendant of the subject of inquiry, so that he may prepare himself to produce the written instrument, if necessary for his defence, a notice to produce it is not required; thus, for instance, it has been holden that, in trover for a bond, the plaintiff may give parol evidence of it, to support the general description of it in the declaration, without having given the defendant previous notice to produce it. How v. Hall, 14 East, 274. So, upon an indictment for stealing a bill of exchange, parol evidence of it was admitted, without a notice to produce it. R. v. Aickles, 1 Leach, 330. So, upon an indictment for administering an unlawful oath, where it appeared that the defendant read the oath from a paper, parol evidence of what the defendant, in fact, said, was holden to be sufficient, without giving him notice to produce the paper. R. v. Moore, 6 East, 421. So, where a seditious meeting came to certain resolutions, and the defendant, who was chairman, gave a copy of these resolutions to another person, it was holden that this copy might be given in evidence, without a notice to produce the original. R. v. Hunt, 3 B. & Ald. 566. In the same case it was also holden, that it was not necessary to produce or account for banners bearing certain inscriptions, &c., exhibited at such meeting, but that parol evidence of such matters, by eye-witnesses, was perfectly admissible to shew the general character and intention of the assembly. Secondly, it is a general rule, that hearsay is no evidence; and for two reasons what the other person said was not upon oath; and the party who is to be affected by it had no opportunity of cross-examining him. Gilb. Ev. 149. To this rule, however, there are some exceptions, arising from necessity :-1. Hearsay is admissible to prove the death of a person beyond sea. Ball. N. P. 294; Doe v. Griffin, 15 East, 293. 2. Hearsay is good evidence to prove a prescription, Bull. N. P. 295, or custom; Nicholas v. Parker, 14 East, 327, n. Doe v. Sisson, 12 East, 62: see R. v. Antrobus, 2 Ad. & Ell. 788: Pim. v. Curell, 6 M. & W. 234; and for this purpose old witnesses are usually called to prove what they beard in their youth from old persons upon the subject. What a witness has been heard to say at another time may be given in evidence, in order to invalidate or confirm the testimony he gives in court. 2 Hawk. c. 46, s. 14; Gilb. Ev. 150. 4. When hearsay is introduced, not as a medium of proof to establish a distinct fact, but as being part of the transaction in question, it is admissible. R. v. Gordon, 21 St. Tr. 535. So, declarations made by an agent acting at the time 3. within the scope of his authority, are receivable against the *prin- [ *114 ] cipal. See Reg. v. Hall, S C. & P. 358. Upon the same principle, the declarations of a person robbed, or a woman ravished, as to the fact made immediately afterwards, are evidence to confirm them, though the particulars of their statement cannot be inquired into. See R. v. Wink, 6 C. & P. 397: R. v. Brazier, 1 East, P. C. 444: Reg. v. Megson, 9 C. & P. 420. 5. Upon an indictment for murder, the dying declarations of the deceased are receivable in evidence, if it appear to the satisfaction of the judge (R. v. John, 1 East, P. C. 358, 360: R. v. Hucks, 1 Stark. 523) that the deceased was conscious of his being in a dying state at the time he made them, R. v. Woodcock, 1 Leach, 502 : R. v. Welbourn, 1 East, P. C. 358: R. v. Christie, Car. Sup. 202: R. v. Van Butchell, 3 C. & P. 629, and was sensible of his awful situation; R. v. Pike, 3 C. & P. 589: R. v. Crockett, 4 C. & P. 544: R. v. Hayward, 6 C. & P. 157: R. v. Spilsbury, 7 C. & P. 187: Reg. v. Perkins, 2 Mood. C. C. 135; 9 C. & P. 395 : Reg. v. Howell, 1 C. & K. 689; even though he did not actually express any apprehension of danger, 1 East, P. C. 385; R. v. Dingler, 2 Leach, 561, and his death did not ensue until a considerable time after the declarations were made. R. v. Mosley, 1 Mood. C. C. 97. The dying declarations of a boy ten years old were held admissible. Reg. v. Perkins, supra. Where the party expressed an opinion that she should not recover, and made a declaration at that tiine; but afterwards, on the same day, asked a person whether he thought she would rise again," it was held that this shewed such a hope of recovery as rendered the previous declaration inadmissible. R. v. Fagent, 7 C. & P. 238; see Reg. v. Megson, 9 C. & P. 418. But these declarations are only adinissible where the death of the deceased is the subject of the charge, and the cause of the death the subject of the dying declaration. R. v. Mead, 2 B. & C. 608—per Abbott, C. J. Therefore, upon an indictment for perjury, a dying declaration is not admissible to disprove a fact upon which the perjury is assigned. R. v. Mead, 4. D. & R. 120; 2 B. & C. 606. And upon an indictment for administering savin to a pregnant woman not quick with child, her dying declarations are not admissible, though they relate to the cause of her death. R. v. Hutchinson, 2 B. & C. 608, n. And where a man was robbed, and died before the trial of the person charged with the robbery, Bolland, B., refused to receive his dying declarations respecting the robbery, holding that such declarations were evidence only in cases where the death of the party is the subject of the inquiry. R. v. R. v. Lloyd, 4 C. & P. 233. But on an indictment for the murder of A. by poison, which was also taken by B., who died in consequence, the dying declarations of B. were held admissible. R. v. Baker, 2 M. & Rob. 53. The dying declarations of an accomplice are holden admissible in evidence, R. v. Tinkler, 1 East, P. C. 354, 356, provided he were at the time such a person as would be competent as a witness. R. v. Drummond, 1 East, P. C 353; 1 Leach, 378. Dying declarations in favour of the party charged with the death are admissible in evidence, as they may have an influence on the amount of punishment. R. v. Scaife, 1 M. & Rob. 551. Where two such declarations were made, the second of which alone was reduced into writing in the presence of a magistrate, this written declaration not being forthcoming at the trial, the judges held that, in the absence of it, the first declaration was admissible evidence. R. v. Reason, 1 Str. 499. But where a declaration in articulo mortis was reduced in to writing, and signed by the party, the judge refused to re [ *115]ceive either a copy of the paper, *or parol evidence of the declaration. R. v. Gay, 7 C. & P. 230. It is no objection against such a declaration, that it was made in answer to questions put to the deceased, and not a continuous statement made by him. gent, supra. R. v. Fa Having thus noticed these two general rules, we shall now proceed to consider the remainder of this part of our subject, under the following heads: SECT. 1. Admissions and Confessions, 115. 3. Written Evidence, 125. 4. Parol Evidence, 142. SECT. 1. Admissions and Confessions. In what Cases.]-ADMISSIONS and confessions are of four kinds :1. Where the defendant in open court confesses that he is guilty of the offence of which he is charged in the indictment. 2. Where the defendant, upon an indictment for a misdemeanor, yields himself to the Queen's mercy, and desires to submit to a small fine; which submission the court may accept, if they think fit, without putting the defendant to a direct confession. 2 Hawk. c. 31, s. 3. 3. Where the defendant, upon his examination before justices of the peace, on a charge of felony or misdemeanor, under stat. 7 G. 4, c. 64, ss. 2, 3, admits either his guilt or any fact which may tend to prove it at the trial. 4. Where the defendant makes an admission or confession of his guilt, or of any fact which may tend to the proof of it, to any other person; or a ssents to what is said in his presence and hearing, relative to a fact within his knowledge. All these several species of confession, in order to be admissible, must be free and voluntary. And in the case of a confession before a magistrate or other person, if it appear that the defendant was induced to make it by any promise of favour, or by menaces, or undue terror, it shall not be received in evidence against him. 2 Hale, 285. Thus, if it be said to the defendant that it will be better or worse for him if he do or do not confess; 2 East, P. C. 659; or that what he says will be taken down, and used for him or against him on his trial; Reg. v. Drew, 8 C. & P. 140; or even if a confession be procured by a threat to take the defendant before a magistrate, if he do not give a more satisfactory account; R. v. Thompson, 1 Leach, 291; or to send for a constable; R. v. Richards, 5 C. & P. 518: Reg. v. Hearn, C. & Mar. 109; or by saying, "tell mę where the things are, and I will be favourable to you;" R. v. Cass. Id. 190, n.: or, "you had better tell all you know;" R. v. Kingston, 4 C. & P. 387; or, "you had better tell where you got the property;" R. v. Dunn, 4 C. & P. 543; or, you had better split, and not suffer for all of |