In modern prosecutions, whether for treasons, felonies or misdemeanors, for offenses existing at common law or made so by statute, the good character of accused may be proved and rebutted, to mitigate or enhance the punishment to be fixed by the jury. In order to be put in issue by the prosecution, the character of the prisoner must be an essential element of the crime charged; otherwise if the accused does not offer evidence as to his character or reputation, the State cannot put it in issue.

In most jurisdictions, in the impeachment of a witness, the testimony as to his character is limited to his general reputation for truth and veracity in the community in which he lives. In other states, evidence may be offered as to his general moral character.

In prosecutions for murder and manslaughter, testimony as to the reputation of the victim should be limited to his reputation for peace and sobriety in the neighborhood in which he lives at the time of the

Occurrence.

SECTION 33. MARKET Value.

The subject of "market value" is closely connected with hearsay, in that, in the usual routine of business, merchants, commission men and brokers, are wont to rely upon market and stock quotations and reports of sales, or sales, a knowledge of which they have obtained by hearsay. Real estate brokers daily base their estimates or opinions on reported sales or reports of income derived therefrom. While such sales or income cannot be proved by such reports, or by market or stock quotations, yet such sales having been proved by eye witnesses having competent knowledge thereof, opinions of experts based thereon

are admissible to prove market value, and to say whether or not such transactions represented the true market value.

In actions for breach of contract for goods sold, and not delivered, or not accepted, the market value of the goods at the time and place of delivery must be shown.

SECTION 34. TESTIMONY OF WITNESSES DEAD, ABSENT OR DISQUALIFIED.

The question often arises whether the testimony of a deceased or absent witness given in a former action between the same parties is admissible in evidence. This question may arise concerning testimony in a written deposition or given orally in court. The reasons underlying its admission or exclusion are the same in either case. And it may be that a witness, about to depart from the State, his testimony was taken in a written deposition, but afterwards returned to the State and testified orally in court at the time of the trial. In the latter case, if the witness be dead at the time of the second trial, the question arises as to whether the oral testimony or written deposition, or either, or both, be admissible in evidence. And if so, how to proceed. It has been held admissible to introduce in evidence, not only the written deposition, but, if preferred, the oral testimony of the deceased witness given at the former trial, notwithstanding the existence and accessibility of the deposition.

The earlier cases held that the precise words of the deceased witness should be given, and that to state the substance of them was inadmissible. The later cases, however, have relaxed the rule somewhat.

What the deceased witness orally testified to may be proved by any competent witness who will swear from his own memory or from notes taken by him, or by some other person who will swear to their accuracy.

Vol. XI.-11.

CHAPTER V.

PRESUMPTIONS.

SECTION 35. CLASSIFICATION.

Mr. Greenleaf, Sec. 14, divides presumptive evidence into two branches: "Presumptions of law" and "Presumptions of fact." "Presumptions of law," says Mr. Greenleaf, "consists of those rules, which, in certain cases, either forbid or dispense with any ulterior inquiry." They are founded either upon the first principles of justice, or the laws of nature; or the experienced course of human conduct and affairs, and the connection usually found to exist between certain things. The deliberate firing of a deadly weapon presumes a malicious intent to kill or do bodily injury, and twenty years of open and notorious, distinct and exclusive, hostile and adverse possession of land presupposes a prior lost grant. Absence unheard from for seven years or more presupposes the death of the person.

Presumptions of law have been divided into two classes, conclusive and rebuttable presumptions. Conclusive presumptions lose the character of presumptions and become absolute and fixed rules of law declaring a particular fact to be true under particular circumstances and forbidding any inquiry into its truth or falsity. Rebuttable or disputable presumptions may be overcome by countervailing evidence.

It appears that presumptions of law either assert that when a certain fact or series of facts exists, a certain other fact is deemed to be established either