CHAPTER XVII. EVIDENCE. "EVIDENCE includes all the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact the truth of which is submitted to judicial investigation."(ƒ) In ascertaining the law on the subject of evidence in general, four or five heads present themselves under which may be ranged the chief principles which it is necessary to consider: 1. On whom the burden of proof lies. 2. What must be proved, and what may not be proved. 3. The best evidence must always be given. 4. Hearsay is not evidence. 5. Confessions, under certain circumstances, are not admitted as evidence. 1. The burden of proof is on the prosecution as a rule. The prosecution must prove their case before the prisoner is called upon for his defense; and this, although the offense alleged consists of an act of omission and not of commission, and therefore the prosecution have to resort to negative evidence.(g) The law considers a man innocent until (f) 1 Tayl. Ev. 1. (g) There is an exception to this rule when the accused pleads specially, e. g., autrefois acquit. [The issue made by the pleadings determines on which party the burden of proof lies. Throughout the trial the burden of proof remains on him to establish his claim, while the other party is bound only to prevent the claim being established. When the issue is made by a special plea in bar, as former acquittal or former conviction, the burden is on the defendant. But when the issue is made by the plea of not guilty, the burden is continually on the state to prove the guilt of the defendant; and the defendant need only invalidate, or raise a reasonable doubt as to the proof of, any es sential ingredient of the crime charged. But this is by no means uni he is shown to be guilty. But the principle under discussion must not be understood with unlimited significaversally accepted. For when the law creates a particular disputable presumption, either in the absence of evidence, as the presumption of innocence or the presumption of sanity-or from the proof of some fact, as the presumption of larceny from the unexplained possession of stolen goods, or the presumption of malice from the fact of killing-a particular burden of proof is frequently said to lie on the party who proposes to controvert such presumption. Accordingly, many cases speak of the burden of proof shifting, in the course of the trial, from one party to the other. This is especially the case with the presumptions of sanity and of malice. The state must prove, beyond a reasonable doubt, every essential element of the crime charged. Criminal intent, unless otherwise provided by statute, is an essential element. If the defendant was insane, the law holds he was incapable of criminal intent. Hence, the defense of insanity is merely a denial of criminal intent, and is, therefore, provable under the general issue. Hence, if the evidence raises a reasonable doubt of the sanity of the defendant, it raises a doubt a to his criminal intent, and, logically, he is entitled to an acquittal. And it is so held in State v. Bartlett, 43 N. H. 224; State v. Jones, 50 N. H. 369; State v. Johnson, 40 Conn. 136; People v. McCann, 16 N. Y. 58; Wagner v. People, 4 Abb. App. Decisions, 509; McFarland's case, 8 Abb. App. Decisions, 57; Dove v. State, 3 Heiskell, 348; People v. Garbutt, 17 Mich. 1; Polk v. State, 19 Ind. 170; Bradley v. State, 31 Ind. 492; Hopps v. People, 31 Ill. 385; Chase v. People, 40 Ill. 352; State v. Crawford, 11 Kansas, 32; Wright v. People, 4 Neb. 407. The cases People v. Garbutt, 17 Mich. 1, and State v. Crawford, 11 Kansas, 32, are especially full and thorough. In other cases, it is held that the presumption of sanity throws the burden of proof on the defendant; that the defense of insanity is in the nature of a plea of confession and avoidance; and that the defendant must establish the fact of his insanity by a preponderance of proof. Commonwealth v. Eddy, 7 Gray, 583; Ortwein v. Commonwealth, 76 Penn. St. 414; Lynch v. Commonwealth, 77 Penn. St. 205; Myers v. Commonwealth, 83 Penn. St. 131; Boswell v. Commonwealth, 20 Grattan, 860; State v. Coleman, 27 La. Ann. 691; McKenzie v. State, 26 Ark. 334; Graham v. Commonwealth, 16 B. Mon. 589; Kriel v. Commonwealth, 5 Bush, 362; Loeffner v. State, 10 Ohio St. 598; Bergin v. State, 31 Ohio St. 111; State v. Felter, 32 Iowa, 49; State v Stickley, 41 Iowa, 232; State v. Klinger, 43 Mo. 127; State v. Smith, 53 Mo. 267. But, in this last case, though the court says it is neces sary for the defendant to make out insanity by a preponderance of tes timony, it also says it is irregular to tell the jury so, and cites approv ingly the statement of Mr. Bishop, that the jury should acquit if they entertain a reasonable doubt of the defendant's sanity. Bonfanti v. tion. Though the burden of proof of the charge is in gen eral on the prosecution, yet on particular points it is on the prisoner. This is markedly the case in some offenses. Thus, by various acts of parliament it is declared penal to do certain things, or possess certain articles, without lawful State, 2 Minn. 123; People v. McDonnell, 47 Cal. 134; People v. Wilson, 49 Cal. 13. The facility of juries in finding the existence of insanity, in cases of homicide, has influence in some of these decisions. The court say, in Ortwein v. Commonwealth: "And if this reasoning were less conclusive, the safety of society would turn the scale. Merely doubtful insanity would fill the land with acquitted criminals." The influence of this consideration may be estimated by comparing the ruling of this court in cases of homicide with the ruling made in the case of a contested will-Egbert ». Egbert, 78 Penn. St. 326. Some American cases hold that the defense of insanity can not prevail, unless established beyond a reasonable doubt. These cases are clearly erroneous. In like manner, the claim of self-defense is merely a denial of the malice which the prosecution is bound to establish beyond a reasonable doubt. Accordingly, some cases hold that the defendant is entitled to an acquittal, if, upon the evidence, it is doubtful whether the homicide or assault was malicious or was in self-defense. State v. People, 53 N. Y. 164; State v. Porter, 34 Iowa, 131; State v. Wingo, 66 Mo. 181. And, in Massachusetts, in cases of assault. Commonwealth v. McKie, 1 Gray, 61. While others hold the defendant must make out a case of self-defense by a preponderance of proof. People v. Shroyer, 42 N. Y. 1; Silvus v. State, 22 Ohio St. 99; Weaver v. State, 24 Ohio St. 584. And, in Massachusetts, in cases of homicide, the presumption of malice, arising from the fact of killing, remains till overcome by preponderance of proof. Where the possession of stolen goods by the defendant is established, he is not required to prove by preponderance of proof that he is innocent. State v. Merrick, 19 Maine, 401. In a case of forgery, where it was proved that the paper came into the hands of the defendant unaltered, and left his hands altered, it was held error to charge that thereby the burden was cast on the defendant to prove that he did not alter it. The court said: "If the result of the case depends upon the establishment of the proposition of the one on whom the burden was first cast, the burden remains with him throughout, though the weight of evidence may have shifted from one side to the other, according as each may have adduced fresh proof. There is a wide difference be tween a requirement, in a criminal prosecution, that the accused shall prove his innocence, when a presumption is raised against him, and the necessity of explaining, in some degree, the fact on which that presumption rests." State v. Flye, 26 Maine, 312] excuse or authority; such excuse or authority must be proved by the accused. For example, to possess public stores marked with the broad arrow ;(h) to possess coining tools.(i) Again, it lies on the defendant to prove that signals to smuggling vessels were not made for the purpose of giving illegal notice ;(k) also to show some justification for sending an unseaworthy ship to sea.() But it will be no ticed that in all these cases there is something to be proved in the first instance by the prosecution-either the possession of the goods, the unseaworthiness of the ship, etc. And not only in the particular cases of which we have given examples, but in most cases of circumstantial evidence "there is a point (though it is impossible to determine exactly where it lies) at which the prosecutor has done all that he can reasonably be expected to do, and at which it is reasonable to ask for evidence from the prisoner in explanation, and to draw inferences unfavorable to him from its absence."(m) Thus the court will naturally expect from the prisoner an explanation of the object for which poison was purchased; so also in the case of recent possession of stolen goods. Killing is presumed to be murder until otherwise accounted for. 2. What must be proved?-All facts and circumstances stated in the indictment which can not be rejected as surplusage; in other words, all the constituents of the offense. Though, as we shall see hereafter, if a more serious crime contains, as it were, a less serious one, the prisoner indicted for the former may sometimes be convicted of the latter; if the more serious circumstances can not be established; thus on an indictment for murder, if the malice prepense be not proved, the prisoner may be convicted of manslaughter. We have seen above(n) in what cases the time and place must be correctly stated in the indictment; (0) and thus we now know when they must be correctly proved. But in (h) v. 38 and 39 Vict., c. 25. (k) 16 and 17 Vict., c. 107, 8 245. (i) 24 and 25 Vict., c. 99, 8 24. (1) 38 and 39 Vict., c. 88, 8 4. (n) v. p. 264. any case the offense must be proved to have been committed within the extent of the court's jurisdiction. Any material variance between the fact laid in the indictment and the fact proved will be fatal, unless amended.(p) [In criminal cases, as in civil, descriptive averments must be strictly proved. If, under a statute against stealing any horse, mare, or gelding, the indictment charges the stealing of a horse, and the evidence shows the theft of a gelding, the defendant must be acquitted.(1) But the contrary is held in England.(2) So if the charge is stealing two turkeys, and the evidence shows the stealing of two dead turkeys;(3) for the allegation of an animal means a live animal, unless it is described as dead.(4) A variance as to a person named in the indictment is fatal, unless it is a vari ance in spelling merely, which does not affect the sound. The cases are not entirely harmonious in determining what is a variance in sound. Where the name in the indictment was Dougal McInnis, and the name proved was Dougal McGinnis, the variance was fatal; (5) while proof of Winyard in place of Whyneard, as averred, was not.(6) When a paper is set out by its tenor in the indictment, the rule is that where the omission or addition of a letter does not change the word, so as to make it another word, the variance is not material."(7) Where the allegation was "not," and the proof was "nor," and the sense was not af fected thereby, the variance was fatal; (8) but where the allegation was "undertood," and the proof was "understood," the variance was not fatal.(7) Though the descriptive averment be unnecessary, still it must be strictly proved. Where, in an indictment for the theft of a horse, the failure to prove that the stolen horse (p) v. p. 265, 267. (1) Hooker v. State, 4 Ohio, 350; Turley v. State, 3 Humph. 323. (2) Reg. v. Aldridge, 4 Cox C. C. 143. (3) Rex v. Halloway, 1 C. & P. 128. (4) Rex v. Edwards, R. & R. 497; Commonwealth v. Beaman, 8 Gray, 497; State v. Jenkins, 6 Jones (N. C.), 19. (5) Barnes v. People, 18 Ill. 52. (6) Rex v. Foster, R. & R. 412. (8) Rex v. Beech, Comp. 229. |