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 the offence, 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 repect 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.

"

And

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. 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 receiving 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 and 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. 292-294. 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. So the admission of an inhabitant of a township, has been holden admissible evidence in support of an indictment against his township for not repairing a highway, even although he was not rated; for he was a party to the record. R. v. Adderbury East, 13 Law J. 9, m. 5 Q. B. 187.

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 strengthen 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. 443.

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. 4 T. 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, 8. 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.

By proofs.] Proofs are of two kinds: written evidence, and parol testimony: both of which shall be treated of, in a subsequent part of this title. We shall in this place merely notice the general rule, which is applicable as well to criminal cases as to civil actions, namely, 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. 1 Arch. Pl. & Ev. civ. act. 372. For if it be found that there is any better evidence existing than that which is produced, the very non-production of it creates a presumption that it would have detected some falsehood, which at present is concealed. 3 Bl. Com. 368. Gilb. Ev. 16.

1 Show. 397. Carth. 220. 3 East, 192.

And within the meaning of this rule, written evidence is better than parol evidence, of the same facts. And therefore, in order to prove the contents of a deed, agreement, bill of exchange, or the like, nothing else shall be admitted as proof of it but the deed, &c. itself, if in being, and within the control of the party who has to prove it; Gilb. Ev. 93. 10 Co. 92 b. 93. R. v. Merthyr Tydvil, 1 B. & Ad. 29; and it is deemed to be within his control, if it be in the hands of any third person whom he may compel by subpœna duces tecum to produce it. In parol evidence, however, there is no such distinction: if A. be called as a witness to prove a fact, and it appears that B. can give better parol evidence of it, still this does not prevent A. from being examined; the not calling of B. is merely matter of observation.

But in cases where there had been written evidence of the fact, if the writing have been destroyed or lost, then upon proof of that fact, secondary evidence shall be allowed to be given of it, that is to say, proof by an examined copy, or even parol evidence of its contents. If it be proved to have been destroyed, then the party is entitled, as of course, to prove its contents by secondary evidence. But if that cannot be proved, then, to let in secondary evidence, the court must be satisfied by evidence that the original is lost, or that, after diligent search for it, it cannot be found; and parol evidence to this effect, must be given by the person or persons who actually at one time had the custody of the original, or those legally entitled to the custody of it, and those likely to have it. See R. v. Castleton, 6 T. R. 236. R. v. Stourbridge, 8 B. & C. 96. It is not necessary that such evidence should prove a destruction of the instrument; if it prove such diligence in searching for

it, as to relieve the party of all charge of laches in not making further inquiry, it will be sufficient, R. v. Morton, 4 M. & N. 48. And see R. v. East Farleigh, 6 D. & R. 147. dichinton, 3 B. & Ad. 460.

R. v. Pid

If the written instrument be in the hands of the opposite party, so that you cannot produce it, or compel its production by a subpoena duces tecum, you must serve such opposite party with a notice to produce it at the trial, &c., and if he fail to do so, you may then give secondary evidence of its contents. Arch, Pl, & Ev, civ, act. 382-387, And the same, if it be in the hands of his attorney, banker, or agent, 2 Car, & P. 520. 1 Id, 582, But if the written instrument be merely a notice, it is not necessary to give a notice to produce it; Arch. Pl, & Ev, cio, act, 383; also in larceny of a written instrument, it is not necessary to give the defendant notice to produce it; R. v. Aickles, i Leach, 530; and the like in other cases, Bess. Pr. 140-142,

3. Written Evidence,

See Arch.

Acts of Parliament,] Public Acts need not be proved; nor local Acts containing a clause, either making them public Acts, or directing the judges to take judicial notice of them. But private Acts, not containing any such clause, must be proved in the same manner as any other record, namely, by an ex. amined copy of the enrolment. The statutes of Ireland, previous to the union, may be proved in this country, by copies printed and published by the Queen's printer.

Other records.] The records of the Queen's courts of common law at Westminster, may be proved by an examined copy, So the record of an indictment at the assizes or sessions, may be proved by an examined copy; or the record itself may be produced. And for this purpose the record must be made up; for the indictment itself cannot be given in evidence; R. v. Smith et al., B. & C. 241, R. v. Thring, Ry, & M. 171. So, to prove an order of sessions, the record must be made up; and it is then proved by an examined copy, or by the production of the record itself. Where the sessions book was produced in such a case, but the clerk of the peace said he would have made up the record on parchment if it had been bespoken, Park, J, refused to receive the book as evidence. R. v. Ward, 6 Car, & P. 366. But on the other hand, where the entry of the order in the sessions book had a regular caption, and was in the present tense, and in every other respect as a record, and it was proved that no other record ever was made up, the court held that the book was legal evidence of the order, R. v. Yeooley, MN, M. 1838, & Law J,, 9 m. A conviction be.