direct or hearsay, as to the truth of the matter contained in the statement.]

iv. Declarations made by persons under the sensible conviction of their impending death. Such declarations are admitted only when the death of the deceased is the subject of the charge (that is, in cases of murder or manslaughter), and only if the declaration refers to the injury which is the cause of death.

v. Statements made by deceased persons, if against their interest; or entries made by them in the regular course of their duty or employment.

vi. When the bodily or mental feelings of a person are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible as original evidence:(e) for example, what was said to a surgeon immediately after an assault. (d)

vii. When the sayings, etc., of another are part of the res gesta, that is, of the general transaction, and are not merely a medium of proof of another fact. Thus the cries of a person being stabbed, of a mob, are good evidence.(e) In fact, these are not strictly instances of hearsay evidence at all, but the original proofs of what took place.

[viii. Evidence, in a second trial, of testimony given by a witness now deceased, at a former trial of the same case between the same parties.(1)]

(c) 1 Tayl. Ev. 530.

(d) Aveson v. Lord Kinnaird, 6 East, 198. (e) v. 21 How. St. Tr. 514, 529.

(1) "It is essential to the competency of the witness called to give this kind of evidence, first, that he heard the deceased person testify at the former trial; and second, that he has such accurate recollection of the matter stated, that he will, on his oath, assume or undertake to narrate in substance the matter sworn to by the deceased person, in all its material parts, or that part thereof which he may be called on to prove.

It is essential to the competency of the evidence, first, that the matter stated at the former trial by the witness, since deceased, should have been given on oath; second, between the same parties, and touching the same subject-matter, where opportunity for cross-examination was given the person against whom it is now offered; and third, that the matter sworn to by the deceased be stated, in all its material

It will be convenient here to notice the rule that if a witaess is dead, or too ill to travel (or kept out of the way, as against the person so keeping him out), (f) his depositions may be read, provided that such depositions were taken in the presence of the accused, and that he had an opportunity of cross-examining the witness.(g)

5. Confessions, under certain circumstances, are not admitted as evidence.

Confessions, if received at all in evidence, are received with great caution, not only from the consideration that, owing to insanity, or other reason, they may be false, but also there is the danger of their not having been correctly reported. The general rule is, that to be admissible they must be free and voluntary. What amounts to a free and voluntary confession does not clearly appear. "This much is certain, that no confession by the prisoner is admissible which is made in consequence of any inducement of a temporal nature, having reference to the charge against the prisoner, held out by a person in authority; and on the whole, the tendency of the present decisions seems to be to admit any confessions which do not come within this proposition.(h)

Confessionary evidence is admissible only against the person who makes it, though, of course, if the jury hear any thing in it against accomplices, it will be apt to prejudice them against such co-defendants. In the same way, if a confession is improperly blurted out where it is not admissible, it can not but have weight with the jury.

With regard to confessions or statements before the magistrate, it is provided by statute(i) that after the examina

parts, and in the order in which it was given, so far as necessary to a correct understanding of it.

"The requirement that all the matter sworn to at the former trial by the person, since deceased, be stated, being one of the tests of the evidence, not of the witness, it is not essential that it be all proven by a single witness." Summons v. State, 5 Ohio St. 325.

(f) R. v. Scaife, 2 Den. 281.

(g) 11 and 12 Vict., c. 42, ? 16. of the accused, 30 and 31 Vict., c. (k) Rosc. 40.

So, also, as to depositions on behalf 35, § 3.

(i) 11 and 12 Vict., c. 42, ?, 18.

tion of all the witnesses for the prosecution, one of the magistrates shall have all the depositions against the accused read to him, and shall then say to him these words, or words to the like effect: "Having heard the evidence, do you wish to say any thing in answer to the charge? Yo, are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial." The magistrate gives a further caution that the accused has nothing to hope from any promise of favor, and nothing to fear from any threat which may have been holden out to induce him to make any confession or admission of his guilt. But this second caution is necessary only when it appears that some inducement has been holden out to the accused.(k) The statement of the prisoner thus made before the magistrate is read at the trial from the depositions without further proof.

It will be remembered that a witness is not compelled to answer questions which tend to criminate himself. By several statutes, though they are obliged to answer the questions, the evidence given by witnesses is expressly declared not available against them on a criminal charge; for example, under the corrupt practices prevention act, 1863.(4)

CIRCUMSTANTIAL AND PRESUMPTIVE EVIDENCE.

It is usual to distinguish two kinds of evidence, direct or positive, circumstantial or presumptive. By the former we mean the evidence given by a person who testifies to having actually seen, etc., the act constituting the crime committed; the proof applying immediately to the factum probandum, without any intervening process. All other evidence is termed indirect, presumptive, or circumstantial; being evidence of facts from which the fact of the crime may be inferred; it applies to collateral facts which contribute to the conclusion that the principal fact exists.

(k) R. v. Sansome, 19 L. J. (M. C.) 143.

(4) 26 Vict., c. 29, 8 7. For other examples, v. Tavl. Ev. 1261.

Thus, if a witness proves that he saw the prisoner cut A.'s throat, or put his hand into B.'s pocket, draw out his purse, and run away, the evidence is direct. But if the witness' proves that the prisoner was seen going to B.'s house at 4 o'clock; that there was no other person in the house at the time; that at 4:15 B.'s throat was found cut, and that a blood-stained knife was found concealed in B.'s locked box, the evidence is circumstantial.

It is difficult to draw the line between direct and circumstantial evidence. This will be seen more readily from an example. A. stabs B. in three places; it is not known in consequence of which of the wounds death ensues. C. sees A.'s hand raised to strike one of these blows. Is his evidence to be regarded as direct or circumstantial as to the murder? In other words, it is often impossible to draw the line between the principal fact and subsidiary facts.(m) And if it were possible clearly to distinguish, what would be the advantage? It is certainly incorrect to say that direct is stronger than circumstantial evidence. It may be that in the former there is not the danger involved in drawing the inferences which are incidental to the latter; but, on the other hand, in the latter more facts are brought on the carpet by a greater number of witnesses, and thereby any mistake is much more likely to be exposed.(n)

(m) It is impossible to say specifically of any crime which is the principal fact. In murder, is the principal fact the conception of malice in the mind, or the infliction of bodily injury, or the death in consequence? Unless all these take place there is no murder. These facts may occur at times and places remote from each other. Are there three principal facts?"-Fitz. St. 267.

(n) There is no sort of difference between the cogency of the dif ferent kinds of evidence, whether the comparison is made between weak cases or strong ones. Compare two strong cases. How is it pos sible to say whether the evidence of several credible witnesses, who say they saw a man put his hand into another man's pocket, and take out his purse and run away, is stronger or weaker than that of the same number of equally respectable witnesses who prove that the purse was taken, and that immediately afterward the prisoner was seen running away, and on being stopped was found to have the purse in a secret pocket, no explanation being given? Or take two weak A man swears that he was robbed on a dark right, and that

cases.

The so-called circumstantial evidence is said to be of two kinds:

Conclusive, when the connection between the principal and evidentiary facts is a necessary consequence of the laws of nature; as in an alibi.

Presumptive, when it only rests on a greater or less de gree of probability.(0) Such evidence is termed "presumptive," inasmuch as the fact of the crime is to be presumed from certain other facts.

Presumptions, or inferences of other facts from facts which are already admitted or proved, are sometimes divided into violent, probable, slight, or rash, according as the facts presumed necessarily, usually, or otherwise attend the fact proved. A more scientific classification is into presumptions:

i. Juris et de jure.

ii. Juris.

iii. Facti or nominis.

The last of these is the kind of presumption produced by evidence in the way we have noticed. The other two must be explained:

i. Juris et de jure.-Presumptions of this character are absolute, conclusive, and irrebutable. No evidence is allowed to be given to the contrary. For example, an infant under the age of seven is incapable of committing a felony. Every person knows the law.

the prisoner is the man who robbed him. The light by which he saw him was the reflection of a furnace a long way off, which would cast a light at once strong and unsteady, and the robber was exposed to it only for a moment. A sack is stolen, and is found three months afterward, apparently concealed, in the house of a marine store dealer. He says something on the subject, which may be, and probably is, a lie. Other people had access to the place when the sack was found. Which of these cases is the stronger of the two? Their relative strength can not be shown to depend in any way on the properties of either direct or circumstantial evidence as such." . Circumɛtantial "is, in short, a word useful only for the sake of puzzling juries, and providing them with a loophole for avoiding a painful, but most important, duty."-Fitz. St. 273.

(e) Best, Ev. 25, 400