THE INDIAN EVIDENCE ACT
by JAMES FITZJAMS STEPHEN
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Title: THE INDIAN EVIDENCE ACT Author: JAMES FITZJAMS STEPHEN Language: English Subject: Fiction, Literature 'LJLWDOPublisher: World Public Library Association
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t^-
THE INDIAN EVIDENCE ACT
^-^^
(I.
OF
1872).
THE
INDIAN EVIDENCE ACT (I.
of 1872).
WITH AN INTEODUCTION
PRINCIPLES
JUDICIAL EVIDENCE.
*0E
By JAMES FITZJAMES STEPHEN,
Q.C.
fLanSon:
MACMILLAN AND Calcutta: Thacker, Spink
&
Co.
;
CO.
Bombay: Thackeb,Vining
MDCOCLXXII.
&
Co.
PEBFACE. On "
the 5th March, 1872, in moving that the " Indian
Evidence Act
"
shovdd be taken into consideration
by the Legislative
Council,
I
said
— " many
topics
" closely connected with the subject of Evidence are " incapable " press law. "
of being satisfactorily dealt with It
would be easy
on which the whole subject
to dilate rests,
by
ex-
upon the theory
and the manner in
" which an Act of this kind should be used in practice. " I think, however, that it would not be proper to "
do so on the present
"
put into
writing
occasion.
what
I
have
I
have therefore say
to
on
these
" subjects,
and I propose to publish what I have " written, by way of a commentary upon, or intro" duction to, the Act itself I hope that this may be " some use to Civil Servants who are preparing " in England for their Indian career, and to the law " students in Indian universities. The subject is " one which reaches far beyond law. The law of "evidence is nothing unless it is founded upon a " rational
conception of the manner in which truth
" as to all matters of fact whatever ought to
be in-
" vestigated."
written
This,
remarks were since
my
for
the
made, but
most
corrected
return to England,
ferred to. AuffUst.SOth, i,
1872.
Papek Buildings,
part
Tbmpli?.
is
before
these
and completed
the Introduction re-
—
POSTSCEIPT. In the Gazette of India of August 17, 1872, a Bill for the Amendment of the Evidence Act is published In the Statement of Objects and
for the first time.
Reasons appended to the BUI primary object of this Bill "which
it
is
time
opportiuiity
is
and other accidental
clerical
has been
is
" the
said that
to continue certain rules
believed were inadvertently
is
the Indian Evidence Act."
same
it
It
is
repealed
by
added that "at the
taken to errors to
correct
some
which attention
called."
If the Bill has already become or should hereafter
become law in
present shape, the following errata
its
should be made in the Act as printed below 1.
32,
S.
clauses
insert " 2.
S. 41, in
by
5
and
6,
after
:
"relationship"
blood, marriage, or adoption."
each of the last three paragraphs, after
the word "judgment" add
the words "order
or decree." 3.
S. 45, after
the word "art" add
"or
in
ques-
tions as to the identity of handwriting." 4.
S. 57,
paragraph
13, after the
word "road" add
" on land or at sea." 5.
66, after
S.
is "
add
" in
whose possession the document
" or to his attorney or pleader."
Postscript.
In
6.
9i, exception (2),
S.
Succession Act
" read.
vii
"under the Indian
for "
admitted to probate in
British India." 7.
S. 92, proviso 1, for "
In "
S.
want
In
want
of failure " read
or failure."
"when"
read "provided that when," and for the word " on" in the last line S.
for
108,
read " shifted to." 9.
In
S.
126 (paragraph immediately preceding the
explanation) and in section 128 insert "pleader" after "barrister." 10.
In
S.
126 paragraph
2,
for
"criminal" read
" illegal."
11.
In
155, paragraph 2, for " or has
S.
of a bribe
"
had the
read " or has accepted the
offer
offer
of a
bribe." 12.
In the repealing schedule No.
add "except
Of these
third column,
section 12."
errata three,
viz.,
substantial alterations in the it
3,
was drawn advisedly
Nos.
8, 10,
and
11,
make
Act on points on which
in the
words in which
it
now
stands, for various reasons which were carefully con-
sidered
and regarded as
points there
is
of course
satisfactory.
room
4,
Paper Buildwgs, Temple.
these
for difference of opinion,
but there was no inadvertence. September 30th, 1872.
Upon
TABLE
CONTENTS
OF
OF
CHAPTEE
INTRODUCTION.
I.
GENEEAL DISTRIBUTION OP THE SUBJECT.— Pp.
1-12. PAGE
Technical and
Law
English
General Elements of
of Evidence
^
" Evidence
2
3—5
Law
"
Natural Distribution of Subject
Relevancy of Facts
1
.
.
.
Fundamental Rules of English
Ambiguity of word
Law
6,7 7,8
.
9
.
Proof of Relevant Facts
10
Production of Proof
11
Tabiolar
.
Scheme
.
.
.
12
.
CHAPTEE
II.
A STATEMENT OF THE PRINCIPLES OF INDUCTION AND DEDUCTION, AND A COMPARISON OP THEIR APPLICATION
TO
SCIENTIFIC
AND
INQUIRIES—
JUDICIAL
Pp. 13—15.
....
Principle of Judicial and Scientific Inquiries
General Object of Science
13
14
... .16 ... ... ... ... ... ....
Pacts
.
.
15,
Definition of Pacts in Evidence Act
Propositions
.
.
True Propositions How framed
.
Induction and Deduction
.
.
16
.
17
.
.
.
16
.
17
.
18,
.
Methods of Agreement and Difference Their Difficulties
.
.
.
19
20, 21
21
X
Contents.
How
...
witt
dealt
PAGE .
.
Deductive Method
Comparison of Judicial and Difference as to
Amount
22,23
.
23,24 25
Scientific Inquiries
25—27
of Evidence
Difference as to Object of Evidence Difference
.
as to Trustworthiness
.
Evidence
of
.
27, 28
.
28,29
Advantages of Judicial Inquiries
29
Maxims
30
easily appreciated
Limitations easily perceived
31
Simplicity of Problems
32
32,33
Illustrations
Summary
.
.
33,34
Result of Judicial Inquiries to produce high degree of Probability
....
.
.
(
35
35
Meaning of Moral Certainty Moral Certainty a Question of Prudence
36
.
Principle on which Probabilities are estimated
Two
Classes of Inferences in Judicial Inquiries
37
38,39
.
40
Theory of these Inferences Inferences from Assertion to Truth of Matter Asserted Its Difficulties not AffeotedbyEulfes of Evidence
40 41,42
Grounds of Belief and Disbelief of a Witness Inference from Truth of Matters Asserted to other Matters
42,43
.
Comparatively easy Facts proved must
Rule as
to Cm-pus
Summary
.
fulfil
45
...
.
46
Test of Method of Difference
Delicti
47
48,49
.
of Conclusions
50,51
CHAPTER
III.
THE THEORY OF RELEVANCY, WITH ILLUSTRATION.— Pp.
52—128.
Relevancy means Connection by vfay of Cause and Effect Reasons of wider Definition in Evidence Act .
Illustrations
:
— Case
of E.
v.
Donellan
Case of R.
v.
Case of R.
V.
Richardson
Case of R.
v.
Patch
Case of R.
v.
Palmer
Irrelevant Eacts
.
.
Belaney
.
....
.
.
.
.
.
52
— 54
55,56
.
67
62
63—67 68
— 75
76, ,
.
.
82
81
— 121 1-22
XI
Contents. Facts apparcmtly but
Exclusion of Hearsay
Reasons
for it
.
not really relevant
.
...
.
.
PAGE 122
.
123
123—124 165, 124
Effect of Section 11
Unconnected but Similar Transactions
.... .... .... ... ...
121
.
Evidence of Opinion
.
Exceptions to Rules on Irrelevancy
.
Admissions
Statements by Witnesses
.
who cannot be
called
125
125
.
125
.
126
Statements under Special Circumstances
Judgments Opinions
126 .
127
.
127
127, 128
Character
CHAPTEE
IV.
GENERAL OBSERVATIONS ON THE INDIAN EVIDENCE ACT. -Pp. 129—134. English Cases not referred Judicial Notice
Oral Evidence
to
.
...... .....
.
.
.
Presumptions English
How
Law
....
129
.
Documentary Evidence When Documents are Exclusive Evidence Principle of Provisions on Documentary Evidence .
.
as to Presumptions
by Evidence Act
129
.
129
129
.
130 .
131
131—132 132,
133
.
133
Legal Principles improperly called Presumptions
.
133
Estoppels
.
134
Affected
.
.
.
.
;
THE
PRINCIPLES OF JUDICIAL EYIDENCE BEING AN INTEODtfCTION TO THE
INDIAN
EVIDENCE ACT (I.
of 1872).
CHAPTER
I.
GENERAL DISTRIBUTION OF THE SUBJECT.
Almost every branch of law some
grounded
are
upon
is
composed of rules of which convenience
practical
experience of actual litigation, whilst
nected with
the
in
such as
of
which
but
it
relate
dishonest persons tamper
to
the effect
of
several of the
madness
forms
imitate
coin;
or
those which relate to
responsibility,
which depend on
most interesting branches of moral and physical
This
of evidence
on
general
is
than
of its provisions,
perhaps more conspicuously true of the law of
Many
any other branch of the law.
however useful and necessary, are technical
and the enactments in which they are contained can claim no other merit than those of completeness
The whole subject of documentary evidence
and perspicuity. is
of
this nature.
Other branches of the subject, such as the relevancy of are intimately connected with the
knowledge, and with
The
object
the
subject,
logic,
as
of this introduction
by
stating
the
whole theory of human
applied is to
theory
facts,
to
human
illustrate
conduct.
these parts of
on which they depend
and on which the provisions of the Act proceed.
As
to
more
i.
Technical ^"^^^^"'^'
society, ments
the various
with
contains provisions, such as
also
learning.
those which
the
others are closely con-
human nature and many provisions of no
constitution
Thus the criminal law contains interest,
and
chap.
of
;
General Distribution of the Subject.
2 Chap.
I.
nothing to add to
Act speaks
the
matters,
technical
its
for
itself,
and
I
have
contents.
Evidence Act to English law
more than an attempt to law of evidence to the form of express yeduce the English ° J T. propositions arranged in their natural order, with some modi-
denc^
fications
Relation of
The Indian Evidence Act
is little
•
•
necessary
rendered
peculiar circumstances
by the
of India. English law of evidence-
Like almost every other part of English law, the English law No part of the law has Qf evidence was formed by degrees. o ./
been
left so entirely to
The
Judges.
of
but
the discretion of successive generations
Legislature
very
tiU
with the matter, and since
little
it
interfered
recently
began to
interfere, it
has done so principally by repealing particular rules, such as that which related to the
disc|;ualification
of
witnesses
by
and that which excluded the testimony of the parties has not attempted to deal with the main principles of the
interest,
but
it
subject. Its
want
°'^^'"'
range-
ment.
It is
natural that a body of law thus formed
and with reference
to particular cases, should '-
arrangement, and in particular that
its
by
degrees,
be destitute of
leading terms should
by authority that general rules should have been laid down with reference rather to particular circumstances than to general principles, and that it should have been found necessary to qualify them by excep-
never
have
been
defined
;
tions inconsistent with the principles Difficulties
ing
it.
When subject courts
this
confusion had once been introduced into the
was hardly capable
it
on which ihey proceed.
of law, or
by
writers
of being
remedied either by
of text-books.
The
courts
law could only decide the cases which came before according to the rules
in force.
of
them
The writers of text-books
could only collect the results of such decisions.
The
Legisla-
ture might, no doubt, have remedied the evil, but comprehensive legislation
upon
abstract questions of
law has never yet been
attempted by Parliament in any one instance, though in several in India.
weU-kuown
it
has
cases been attended with signal success
Ftindamental Rules.
-i
That part of the English law of evidence which professes to Chap. i. be founded upon anything in the nature of a theory on the Fundasubject
may
be reduced to the following rules
:—
mies^of
(2)
Evidence must be confined to the matters in Hearsay evidence is not to be admitted.
(3)
In
(1)
Each
law or evidence.
the best evidence must be given.
all cases
of these rules
which
'evidence,'
English
issue.
is
very loosely expressed.
the leading term of each,
is
The word undefined
is
and ambiguous. It
sometimes means the words uttered and things exhibited
by witnesses before a court of At other times, it means the
justice.
proved to exist by those
facts
words or things, and regarded as the groundwork of inferences as to other facts not so proved.
Again,
it is
sometimes used as meaning to assert that a par-
under inquiry.
ticular fact is relevant to the matter
The word
'issue'
is
used with reference to the pleading, the
main
accuracy, the
precise
party to a
suit,
it is
cases
English
which
is
to
matter which
is
affirmed
object of
and denied by the
In other cases
of
rules
strict
many
In
ambiguous.
it
is
special
with great
define,
by the one
other.
used as embracing generally the whole
subject under inquiry.
Again, the word times it
it
'
hearsay
is
Some-
used in various senses.
means whatever a person
is
heard to say
;
sometimes
means whatever a person declares on information given by
some one
else;
sometimes
synonymous with
'
issue
as
being
must be confined
to the
it
is
treated
nearly
irrelevant.'
If the rule that evidence in
'
were construed
strictly,
it
would
matters Ambiguity
run thus
' :
ISTo
°^
confin^^
those facts which ™g ^viexcept witness shaU ever depose to any ^ > fact, ^ dence to by the form of the pleadings are affirmed on the one side and issue. '
_
denied on the other.'
So understood, the rule would obviously
put a stop to the whole administration of exclude evidence of decisive
A sues B note.
on a promissory
justice, as it
would
facts.
note.
B
denies that he
made
the
'
General Distribution of the Subject.
4 Chap.
A
I.
B
has a letter from
note,
and promises
proved
pay
to
This absurd result
the note, and not whether he
it.
is
avoided by using the word
meaning not testimony but any
may be inferred.
must be confined ,
This admission could not be
it.
B made
whether
is,
admitted having made
fact
may
Thus
be proved to
exist,
the rule
little
use
facts
may
run thus
except
facts
in
can be
of the facts in issue it
:
'
No
issue or facts
facts
from but
inferred;'
becomes so vague as
to
be of
from what sort of
for the question naturally arises,
;
the existence of other facts be inferred
To
?
this
question the law of England gives no explicit answer at
though partial and confused answers to parts of inferred
'
interpreted, the rule that evidence,
thus interpreted,
is
evidence
'
from which any other
fact
to matters in issue will
which the existence if
the
the rule referred to were construed strictly, because
if
the issue
as
made
in which he admits that he
it
all,
may
be
from some of the exceptions to the rule which excludes
hearsay.
For instance, there are cases from which
may sometimes be given may be inferred, although
that evidence
another fact
the inference
be founded
is to
fact to
be inferred
whom
the evidence
The which
full
is
is
be given
may
of a fact
be inferred
from which
the fact upon which
a crime, and although the
also a crime for
is to
it
is
answer to the question,
'
which the person agaiast on his trial.
what
facts are relevant,'
the most important of aU the questions that can be
is
asked about the law of evidence, has thus to be learnt partly
by
experience, and partly
and narrow
The
Ambiguity of the rule excluding hearsay.
collecting together such crooked
illustrations of it as the
rule that
'
^
hearsay n
,-<
degree, as each oi the ^^
by
one just given.
no evidence
is
'
is
vague to the
«,.-,, meanmgs of which the
word
susccptiblc is somctimes treated as the true one.
nowhere
down
'
last
hearsay
As
the
an authoritative manner, its meaning has to be collected from the exceptions to it, and
rule
is
laid
in
these exceptions, of which there are as thirteen, '
imply at
hearsay.'
least three different
many
as twelve
or
meanings of the word
Hearsay. Thus it is a rule that evidence may he given of statements which accompany and explain relevant actions. As no rule determines what actions are relevant, this factory
but as the rule
;
excluding
hearsay,
which a man
is
is
heard to
say.
that
in itself unsatis-
'hearsay'
If this is
which excludes
hearsay, the rule
i.
treated as an exception to the rule
implies
it
is
Chap.
means
meaning of
the
would run thus
it
that
'
:
No
witness shall ever he allowed to depose to any thing which he
has heard said by any one
else.'
The
result of this
would be
that no verbal contract could ever be proved, and that no one
could ever be convicted of using threats with intent to extort
money, or of defamation by words spoken, except in virtue of exceptions which stultify the rule.
Most of the exceptions indicate that the meaning of the word hearsay is that which a person reports on the infor'
'
mation of some one
is
and not upon the evidence
This, with certain exceptions,
senses. rule,
else,
but
it is
is
of his
no doubt a valuable
not the natural meaning of the words
no evidence,' and
own
'
hearsay
in practice almost impossible to divest
it is
words of their natural meaning.
The
may
rule that documents
which support ancient possession
be admitted as between person
them,
is
This
who
not parties to
are
treated as an exception to the rule excluding hearsay.
implies
that
quite, equivalent to
the
word
the word
'
'hearsay' irrelevant.'
nearly,
is
if
not
But the English
law contains nothing which approaches to a
definition
of
relevancy.
The ,
fact
of
rule
is
the
which requires that the best evidence of which a
susceptible
three
should be
rules
referred
one of the most useful. obvious maxim, that
know about
possible authority.
man his own
if
a matter,
It is
a
given,
to
is
above,
the
and
most it
is
distinct
certainly
simply an amplification of the
know aU are to him
wishes to senses
that he can
the highest
If a hundred witnesses of unimpeachable
character were all to swear to the contents of a sealed letter,
and
if
the person
who heard them swear opened
the letter
Rules as to nP^t evidence.
—
General Distribution of the Subject.
6 Chap.
and found that
I.
its
contents were different, he
would conclude,
without the intervention of any conscious process of reasoning at
The ambiguity
Ambiguity "evidence."
that they had sworn
all,
what was not
word
of the
'
evidence
great deal of obscurity apart from that
In
rules above mentioned.
and general purposes,
it
is
true. is
'
the cause of
which
scientific inquiries,
a
gives to the
it
and
for popular
no doubt convenient to have one
word which includes
The testimony on which a given fact the facts so believed, and the arguments founded upon them.
(1) (2)
(3)
For instance, tn the
word
tianity," the
is
title
of " Paley's
is believed.
Evidences
of Chris-
The nature
used in this sense.
of the
work was not such as to give much importance to the distinction which the word overlooks. So, in scientific inquiries, it
is
seldom necessary
occasion to refer
(foi
reasons to
hereafter) to
lay stress upon
between the testimony on which a
In judicial
fact itself
most
important,
mean mode ''
l.aiTty.'"
is
have
the difference
believed,
and the
and the neglect
to
observe
is
has thrown
it
by causing English lawyers
overlook the leading distinction which ought to form the
on which the whole law should be
principle
Effects of
fact
shall
however, the distinction
inquiries,
the whole subject into confusion to
which I
I
classified.
the distinction between the relevancy of facts and the of proving relevant facts.
The use of the one name evidence for the fact to be proved, and the means by which it is to be proved, has given a double meaning to every phrase in which the word occurs. '
Thus, for instance, the phrase
means
ment
'
'
primary evidence
a relevant fact, and sometimes the
opposed to a
as
opposed to
'
copy.
direct evidence.'
usually means a
fact,
'
'
sometimes
original of a docu-
Circumstantial evidence
But
'
'
is
circumstantial evidence
from which some other fact
is inferred,
means testimony given by a man as to what he has himself perceived by his own senses. It would thus be correct to say that circumstantial evidence whereas
'
direct evidence
'
—
English
Law
of Evideiue.
7
—
must be proved by direct evidence a clumsy mode of expression, which is in itself a mark of confusion of thought. The evil,
goes beyond mere
however,
Chap.
i.
clumsiness of expression.
People have naturally enough supposed that circumstantial
and direct evidence admit of being contrasted in respect of their cogency,
and that
which they ought
to the conditions is
different canons
convinced by them.
and
of proof,
word It
'
an
is
This,
can be laid down, as
to satisfy before the court
I think,
theory
confuses the
due entirely to the ambiguity of the
error,
evidence.'
would be a mistake
character and
to
infer
from the unsystematic
absence of an'angement which belong to the law
English law of evidence that the substance of the law
On
bad.
the contrary,
it
it is, is
to
what
it
itself is
of s™^°'=£-
possesses in the highest degree the
English case law,
characteristic merits of English case law.
as
Merits of
ought to be, and might be,
if
it
were
properly arranged, what the ordinary conversation of a very clever it,
man on
and
as
would be
down as he passing circumstances furnished him with all sorts of subjects
to the
written
matured and systematic statement of It is full of the
berate opinions.
the result of great
most vigorous
sagacity applied
to vast
uttered
a text,
his deli-
sense,
and
is
and varied ex-
perience.
The manner
in
which the law of evidence
the general theories which give
stood
it its
is
interest can
related
be under-
only by reference to the natural distribution
subject,
which appears
All rights and
to be as follows
liabilities
to
of the
;
are dependent
upon and
arise out
of facts.
Every judicial proceediag whatever has ascertaining of
some
right or liability.
for its purpose the
If the proceeding is
criminal, the object is to ascertain the liability to
of the person accused. is to
ascertain
some right of property
right of one party, of relief.
If the proceeding
and the
or
is
punishment
civil,
the object
of status,
liability of the other, to
or the
some form
Natural tion"ofVhe subject.
——
8 Chap.
General Distribution of the Subject. I.
In order to law
must be made by
provision
result,
foUowing objects
the
for
effect this
the
First,
:
legal
particular classes of facts in establishing rights
must be determined. called ^substantive
must be
laid
This
law.
effect
and
of
liabilities
the province of what has been
is
a
Secondly,
down by which persons
of
procedure
may
apply the
others,
two main
course
interested
substantive law to particular cases.
The law of procedure branches,
—
particular
amongst
includes,
the law of pleading, which determines what in
(1)
cases
the
are
questions
dispute between
in
the
how
parties,
and
parties
are to convince the court of the existence of that state
the law of evidence, which determines
(2)
the
of facts which, according to the provisions of substantive law,
would
establish the existence of the right
they allege to Illustration.
which
exist.
The following for Rs.
or liability
1,000.
a simple illustration
is
B
says
that the
:
A
sues
B
on a bond
execution of the bond
was
procured by coercion.
The substantive law
is,
that a bond executed under coercion
cannot be enforced.
The law
A
which
is to establish his
in
the method according to
right to the
One
secured by' the bond.
manner
down
of procedure lays
payment
of the
sum
of its provisions determines the
which the question between the
parties is to
be
stated.
The question
stated under that
provision
is,
whether the
execution of the bond was procured by coercion.
The law (1)
of evidence determines
What
sort of facts
may
the existence of that which
is
be proved in order to establish defined
by the substantive law
as coercion. (2)
(3) (4)
What
Who How
Thus,
sort of proof is to
is to
is it to
before
applied to
give
be given of those
facts.
it.
be given.
the law of evidence
any particular
case, it
is
can be understood
or
know
so
necessary to
—
Relevancy of Facts.
9
mucli of the substantive law as determines what, under given states of
much
would be the
fact,
of the law
what questions
rights
of procedure as
parties,
so
determine
to
sufficient
is
and
I.
open to them to raise in the particular
is
it
the
of
Chap.
proceeding.
Thus in general terms the
upon the following
provisions
law of evidence subjects
(2)
The relevancy of facts. The proof of facts.
(3)
The production of proof
(1)
to
For
exhaustive.
is
be relevant, and that
Court
is
in
existence,
a
position
nature,
ascertainment
and
of
to
of relevant facts.
if
we assume
its
existence
go
on
extent of
or
which
is
to
this
that a fact
how
right
or
the
liability,
the
the ultimate object of the inquiry,
carried further.
may be
more particularly
.TJie
rights (1)
facts,
and
Relevancy liabilities
known
affects
it
The matter must, however, be I
is
duly proved, the
is
say
the
account of the
Court has to do.
this is all that the
general heads
Result,
:
The foregoing observations show that matter
of
consists
distributed
of Facts.
—Facts
may
The three
be
as follows
related
:
to
in one of two ways,
They may by themselves,
in
or
Reievancy i^F
connection with other
constitute such a state of things that
the existence
*^'t'
in
issue,
of
the disputed right or liability would be a legal inference from
them. arises
From of
the fact
necessity
that
A
is
the eldest son of B, there
A
the inference that
is
by the law
England the heir-at-law of B, and that he has such
From
thaf^status involves.
of
B
under certain
the fact that
circumstances, and
A
rights
of as
caused the death
with a certain inten-
tion or knowledge, there arises of necessity the inference that
A
murdered B, and
law
is Liable
to
the
punishment provided by
for murder.
Facts thus ^related to a proceeding
may
be called facts in
issue, unless their existence is undisputed. (2)
Facts,
which are not themselves in issue in the sense
above explained,
may
•
affect
the probability
1
•
of the existence
2.
Rele-
V3Ilt 13.Cts
lo Chap.
General Distribution of the Subject. I.
foundation of inferences
of facts in issue, and be used as the
them
respecting
Act
;
such facts
as relevant facts.
All the facts with which
can in any
it
event be necessary
concern themselves, are included in
of justice to
courts
for
the Evidence
in
described
are
these two classes.
The
first
should decide
evidence
what
is,
answer to this question
facts
are
law
the
of
The
relevant.
be learnt from the general theory
to
is
which
therefore,
question,
great
of judicial evidence explained in the foUowing chapter.
What
facts are in issue in particular cases is a question to
be
determined by the substantive law, or in some instances by that
branch of the law of procedure which regulates the forms of pleading, civil or criminal.
Proof of facts.
II. is
The Proof of Relevant
Facts.
—Whether an alleged
fact
a fact in issue or a relevant fact, the court can draw no in-
ference from
its
existence tiH
it
believes
it
to exist
;
and
it
is
obvious that the belief of the court in the existence of a given fact
ought to proceed upon grounds altogether independent
of the relation
of the
proceeding in which question
is
fact
existence
its
whether
the object and nature of the
to
A
wrote a
is to
may have
crime by B.
It
may
court cannot act
^he
upon
a
libel.
it
confession of crime
the
unless
fact it
to
the
believes
but what-
;
proceeding, the that
A
did write
belief
court requires the
writing of the letter
is
production
.
of
the original
when the
a crime, there can be no reason
should be satisfied with a copy is
may have been
must obviously be produced, in each mentioned, by the same or similar means. If
and that
of the cases
may have
supply proof of an alibi in favour of A.
may be an admission or a ever may be the relation of letter,
It
letter
The
constituted the motive for the commission of a
It
the
The
letter.
contained the terms of a contract. It
be determined.
a motive for a crime.
In
when
short,
why
it
the writing of the letter
the
way
in
should be proved depends on the nature of the
on the relation of the fact to the proceeding.
which a fact,
fact
and not
Oral and Documentary Evidence. Some
facts are too notorious to reqiiire
i ]
any proof
at
and Chap.
all,
of these the court will take judicial notice; but if a fact does
i.
I.
judicia
require proof, the
convinced of uttered,
or
it is
instrument by which the court must be evidence by which I mean the actual words ;
documents,
in court, and
other
or
things
2°'oral evidence.
produced
mentary"
not the facts which the court considers to be
^'"^^"'=^-
proved by those words and documents. of the
word must be
third
class
either
Evidence in this sense
of things
A
documentary.
or (2)
(1) oral
might be formed
actually
produced in
court,
not being documents, such as the instruments with which a
crime was committed, or the property to which damage had
been done, but this division would introduce needless intricacy into
the matter.
The reason
and documentary evidence
is
distinguising between oral
for
that in
many
employment
of the latter excludes the
cases the existence
of the former
condition of material things, other than documents,
proved by oral evidence, so that there
is
;
but the
is
usually
no occasion to
dis-
tinguish between oral and material evidence. It
may
be said that in strictness aU evidence
documents or other material things must be evidence before
the
court
can take
notice
unnecessary to discuss the justice of phrase
'
documentary
convenient
evidence
common
and in
avoiding the use of the word in which most writers use
it,
'
is
The
evidence that
is
it
'
by
of them. criticism,
only
in the
as
oral,
identified
ambiguous,
not
use. '
this
is
oral
It
as
is
the
and
reason
is
for
general sense
leads, in practice, to
confusion, as has been already pointed out.
—
The Production of Proof. This includes the subject the rules upon which answer the of the burden of proof III.
:
question,
witnesses is to
By whom :
is
the rules
proof to be given
?
upon which answer the
give evidence, and under what conditions
of the examination of witnesses
the
question.
how
is
How
are
their evidence
The
to
the
:
subject
question, ?
The
of
who
subject
the rules upon which answer
witnesses
be tested
?
to
be examined,
Lastly, the
effect
and
upon
Produc-
^^°^
—
12 Chap.
General Distribution of the Subject. I.
the subsequent proceedings, of mistakes in the reception and rejection of evidence
may
be included under this head.
The following tabular scheme of the subject may be an assistance to the reader. The figures refer to the sections of the Act which treat of the matter referred to :
The object of legal proceedings is the determination of ri^ts and liabilities Trhich depend on facts (§3).
with
connected issue, §
the
5—16.
— admissions,
—
31. § 17 statements by persons who cannot be
I
In
issue,
§
called as witnesses,
Relevant to the issue (§ 3) which may be
3.
§
32—3.
—statements under special circnaistances, §
34-9.
-judgments
*
in
— —
other
40 44. opinions, \ 45 51. character, § 52 5. cases,
§
—
They may be
—
—primary proved by
Judicially noticed, ch.
oral evidence, ch. iv.
iii.
or condary,
proved by
documentary evidence
(ch. v.)
which
se-
§61—6. —attested
is
or
un-
attested, §
67—73.
-public or private,
This Proof must be produced by the party on whom the burden of proof rests, (ch. vii.), unless he is estopped (ch. viii.) If
given
must
by
witnesses (ch. ix.) they testify, subject to rules as to
examination (ch. x.). Consequence of mistakes defined, ch. zi.
§
74—78.
-sometimes
sumed
pre-
to
be
genuine, -
§ 79—90. exclusive or not of oral evidence, ch. vi.
3
Ge7ieral Theory of Jtidicial Evidence.
CHAPTEE A
STATEMENT
OF
THE
1
II.
PRINCIPLES
OF
AND
INDUCTION
DEDUCTION, AND A COMPARISON OF THEIK APPLICATION TO SCIENTIFIC
The to
INQUIRIES.
general analysis given in the last chapter of the subjects
which the law
the
AND JUDICIAL
of evidence
must
relate, sufficiently explains
To
arrangement of the Indian Evidence Act.
general
understand the substance
of the
Chap. il
Act
it is
necessary to have
some acquaintance with the general theory of judicial evidence.
The
object
of the
and to compare
its
present' chapter is to
explain this
application to physical
science
application to judicial inquuies.
theory
with
its
—
Huxley remarks in one of his latest works " The vast results obtained by science are won by no mystical faculties, by no mental processes, other than those which are practised by every one of us in the humblest and meanest Mr.
•'
A detective policeman discovers
affairs of life.
the marks
with that
a burglar from
made by his shoe, by a mental process identical by which Cuvier restored the extinct animals of
Montmartre
from fragments of their bones, nor does
process of induction
that
and deduction by which a lady finding
a stain of a particular kind upon her
dress,
concludes that
somebody has upset the inkstand thereon, differ in any way from that by which Adams and Leverrier discovered a new planet*
The man
of science, in fact, simply uses with scru-
pulous exactness the methods which
every
moment
we
use carelessly." *
Lay Sermons,
p. 78.
all
habitually and at
^"''" J^""-
ley on physical judicial inl*"''^^-
A
H Chap.
tion of his remarlcs .to
law of evidence.
inverse application.
These observations are capable of an
II.
Applica-
Statement of the Principles of Induction.
methods in question to the investigation of matters of every-day occurrence, with a greater degree of exactness than is commonly needed, it is necessary This rest. to know something of the theory on which they
we wish
If
is
to apply the
specially important when, as in judicial
On
investigations.
have been imposed,
is
the
positive
it is difficult
is
conditions
understand their import-
to
theory on which
It appears necessary for these
understood.
upon the general subject
a certain extent
reasons to enter to
it
law upon such
when such
other hand,
significance, unless the
ance or their true
they are based
by
conditions
impose
necessary to
proceedings,
of the investigation of the truth as to matters of fact, before
particular
attempting to explain and discuss that it
which
General
relates to judicial proceedings.
First, then,
what
object of science.
to discover, collect,
is
appears,
illustration of its terms,
tions, (3)
it
what
are facts
Indeed,
perception.
namely,
(1)
one
for
thing that conscious
thing,
we
perceive,
we
as
We
regard
and we perceive
all
our perceptions of the external world
as
is
the
with
case
feelings of our
own
our perceptions
feelings.
collectively
They
the
of the
from the
whatever are
;
is
we
distinct
are
from
the case with
others, in
of the
time only,
thoughts and
our perceptions,
of
whole sum
constitute, in short, the
are acquainted, for without
existence
two
are
minds.
Whateyer may be the objects
make up
it
ot
are conscious of every-
Moreover, our perceptions
of
are in a state
and perception
consciousness
according
we
life
each other, some both in space and time, as
facts.
proposi-
facts, (2)
1
passive or active point of view.
External
facts.
necessary to enter upon
is
During the whole of our waking
names
It is
?
the truth of propositions.
First, then,
Facts.
the general problem of science
and arrange true propositions about
Simple as the phrase
some
branch of
external
entering world,
of our
thoughts
they
and
world with which we
upon the question of the
it
may
be
asserted
with
5
External and Internal Facts. confidence that our knowledge of
perceptions
;
that
for
illustration
composed,
we
should perceive
No
we were
The human
purpose.
of this.
if
one
of our
jir&t,
and, secondly, of the inferences which
from them as to what situated
it is
1
Chap.
ii.
we draw
favourably-
body supplies an
doubts that
his
own body
is
composed not only of the external organs which he perceives by his senses, but of numerous internal organs, most of which it is
highly improbable that either he nor any one else wiUever
see or touch,
and some of which he never
of things, see or touch as long as
he
can,
from the nature
When
lives.
he afiSrms
the existence of these organs, say the brain or the heart, what
he means
is
that he
is
led to believe from
by other persons about human
human
other
that
bodies,
if
what he has been
told
bodies, or observed himself in
his
skull
and chest were
laid
open, those organs would be perceived by the senses of persons
who might There
is
direct their senses towards them.
another class
of perceptions,
duration, and not perceived
which
are,
nevertheless,
utmost importance.
by the
distinctly
transient
five best
marked
perceptible
These are thoughts and
in
their
senses,
and of the
feelings.
Love,
hatred, anger, intention, will, wish, knowledge, opinion, are all
perceived that a
by the person who
man
is
feels
them.
When
it is
affirmed
angry, that he intends to sell an estate, that he
knows the meaning of a word, that he struck a blow voluntarily
and not by accident, each proposition
relates
to
a
matter
capable of being as directly perceived as a noise or a flash of light.
The only
difference between the
When
sitions is this.
it is
affirmed that a
intention, the matter affirmed is one
can perceive;
when
it
is
see,
man
man
has a given
man which may
is
sitting
be perceived
by any other perso:* able to But the circumthe purpose.
either event is
for
regarded as being, or as having
by some one or other, what we mean, and aU that we mean, when we say that been,
or
himself, but
and favourably situated
stance that
classes of propo-
which he and he only
affirmed that a
standing, the matter affirmed is one
not only by the
two
capable of being
perceived
is it
internal ^^'^'^^'
—
A
i6 Chap.
II.
Statement of the Principles of Induction.
when we denote the same thing by calling The word fact is sometimes opposed to theory
exists or existed, or it
a
'
fact.
sometimes
opinion,
to
modes of using
are.
it
'
sometimes to
more or
and
exists,
it
as
is
to
difficult
assertion that a thing exists
it
these
all
When
rhetorical
less
used with any degree of accuracy
but
feeling,
it
is
implies something which
attach
any meaning
which neither
is,
the
to
nor under any
conceivable circumstances could be perceived by any sentient
any meaning
being, as to attach
which can be so perceived does
to the assertion that
anything
time of percep-
not, or at the
tion did not, exist. Definition
with reference to this that the word
It is
'
fact
'
defined
is
of facts in
Evidence
in the Evidence Act (§ 3) as meaning and including
Act.
(1)
Any
thing, state of things, or relation of chings capable
of being perceived (2)
Any
the senses, and
mental condition of which any person
important to
It is
as
by
remember, with respect to
aU thought and language contains a
generality,
it
is
with greater or
we are concerned into Thus we might speak of
facts.
the
doubted, or
if
the
number
a
room
that
facts,
same
of
facts
minuteness, and to decompose every fact
with which
persons in a
conscious.
element
certaia
always possible to describe
less
is
at
one time as a
fact,
presence
but
other circumstances rendered
respective
positions,
furniture,
and many
their
if
the fact were
position
might
particulars
several
of
it desirable,
occupations, the
other
of subordinate
their
of
have
to
the
be
specified. Proposi-
Such being the nature
tions.
proposition
?
A
as to raise in the
of facts,
proposition
is
what
the meaning of a
is
a collection of words so related
minds of those who understand them a
cor-
responding group of images or thoughts.
The other
by which words are distinguished from their power of producing corresponding
aharacteristic
sounds
thoughts
though
or
is
images.
most words
I raise
images in the mind, this
say
thoughts
what may be is
or
images,
because
intelligibly
true principally of
those
called
which
7
Framing of
Such words
relate to visible objects. '
up
call
smell,'
Propositions. '
hard/
hardly be described as images, and the same
which qualify
of words
others, like
'
'
soft/
taste,'
Chap.
Ii.
more true
is still
although,'
'
but they can
thoughts,
definite
sufficiently
as
1
'
whereas,'
and
other adverbs, prepositions and conjunctions.
The statement that a
proposition, in order to be entitled to
the name, must raise in the mind a distinct group of thoughts or images,
may
'that horse
knows that '
be explained by two
niger
I see a sound
'
means
form a proposition to no one, unless some
sea)
Such bdug a
The words
black, but to no one else.
signification is attached
an arm of the
The words
illustrations.
form a proposition to every one who
niger'
is
word
to the
'
sound'
which would make the words
what
proposition,
is
instance,
(for
intelligible.
a true proposition
A
?
mind thoughts those which would be excited in
true proposition is one which excites in the or images
the
mind
riding
corresponding to
Tme
pro-
^°^' '°"^'
of a person so situated as to be able to perceive the
which the proposition
facts to
iiiusti-a-
"°"^'
down
The words
relates.
'
man
a
is
the road on a white horse' form a proposition,
because they raise in the mind a distinct group of images.
The proposition
is
true if all persons favourably situated for
purposes of observation did actually perceive a corresponding
group of
facts.
The next question is. How are we to proceed in order to How true proposiascertain whether any given proposition about facts is true, tionsareto .
.
This, and in order to frame true propositions about facts ? already observed, is the general problem of science, which
only another
name
knowledge so arranged
for
as
^
"^"^
is
as to be easily
imderstood and remembered.
The
facts, '
in the
must be correctly observed. Facts must ^ 11-''^ co-rectly observed must, in the next place, be recorded
first
place,
m
.
The observations made
apt language, and each of these operations delicacy
almost
and
difficulty
impossible to
than
is
one of
usually supposed
is
discriminate between
fa'r ;
greater
for
it
is
observation and
a bare record of our percep-
inference, or to
make language
tions, instead of
being a running commentary upon them. c
To
pg^i^ie" ''°^^^^-
8
A
1
Chap.
IT.
Statement of the Principles of Induction.
go into these
and some kindred points would extend
inquiry beyond
them
reasonable bounds, and I accordingly pass
all
with
over
this
reference
slight
and language
how
are they to be
common
purposes,
applied to inquiries into matters of fact
An
Mr. Mill's
fixed order
prevails in the world,
existence.
their
to
Assuming, then, the existence of observation sufficiently correct for
logic^— a
this
answer to these questions
?
sufficient
for
present
the
purpose will be supplied by giving a short account of what is The g^j^ ^^ i^q subiect by Mr. Mill in his treatise on logic. ° substancc of that part of it which bears upon the present •'
•"
subject is as follows
observation
of the
The
:
great lesson learnt from the
first
which we
world in
that a fixed
live, is
order prevails amongst the various facts of which
Under given
posed.
com-
is
it
conditions, fire always burris wood, lead
always sinks in water, day always follows night, and night
By
day, and so on.
conditions
are
happen.
We
we
degrees
under which these learn,
certain quantity of air
is
and
instance,
for
what the
able to learn
are
such
other
that
events
presence
the
a condition of combustion
of a
that the
;
presence of the force of gravitation, the absence of any equal or
greater
acting in
force
an opposite
maintenance by the water of
its
of lead in water
maintenance by the
bodies
positions,
of
;
their
and the persistency of the various
their paths are
the
properties as a fluid, are con-
ditions necessary to the sinking
heavenly
and
direction,
respective
forces
determined, are the conditions
that the
by which
under which
Induction
day and night succeed each other. The great problem is to find out what particular antecedents
tion.
S'^'i
the
consequents are thus connected together, and what are conditions
processes
are
of
their
employed, namely,
Deduction assumes and derives
which
it
rests
a great part at least affords
For
connection.
of carrying
this
and deduction.
induction
upon previous value
of its
purpose two
inductions,
and
from the means
on the process of thought from
the point at which induction stops.
the ultimate foundation of induction
The ?
questions, AVhat is
Why
are
we
justified
Observation of Facts. in believing tliat
ig
men will die because we have reason to men hitherto have died? Or that every
all
believe
that
particle
of matter
all
whatever wiU continue to
attract
other particle of matter with a force bearing a
proportion to
its
mass and
of matter have hitherto tions
which
lie
For practical purposes
is
limits
of
enough
to
are valid, and will be found
ferences
are
?
the present
ques-
inquiry.
assume that such
by experience
true results in the shape of general propositions,
we can
every
certain fixed
been observed to do so
it
ii.
because other particles
its distance,
beyond the
Chap.
in-
yield
to
from which
argue downwards to particular cases according to the
rules of verbal logic.
as every fact
What,
it
away.
would give us
can
for instance,
the ground.
it
facts
ob-
of™acts "^sufficient.
or no
A
?
natural
and
down.
tree is cut
It
Several birds which were perched upon
Its fall raises
and simple as
questions at least.
more
appear
a cloud of dust which
by the wind, and splashes up some Natural
little
Mere
were connected with and checked by other
than the following
simple
it fly
that
intricate
information xinless
falls to
extracted
which we can observe, however apparently simple,
in reality so
facts.
be
from the observation of nature or of human conduct,
directly
is
cannot
general propositions, however,
True
this
Why
of the
seems,
it
did the tree
dispersed
water in a pond.
raises fall
is
at
the all
?
following
The
tree
why did not the birds fall too, and how came they to away ? What became of the dust, and why did it disappear
falling,
fly
in the
aii",
which
it
whereas the water
was splashed
?
illustrations of the rules
of gravity,
them
is
fell
back into the pond from
To see in aU these facts so many by which we can calculate the force
and the action of
fluids
on bodies immersed in
the problem of science in general, and of induction and
deduction iu particular. Generally together
some
speaking, this
different groups
particulars,
and
problem
of facts
is
solved by comparing
resembling
differing in others,
inductive methods described by Mr.
each other in
and the
Mill are
in
different reality
no
Proceeddu'ction.
—
A
20 Chap.
II.
more
Statement of the Principles of Induction.
than
rules
The
comparisons.
these
arranging
for
last
methods which he enumerates are five* hut the three are
more than
little
method
the
special
and
agreement
of
method
the is
applied upon such a scale as to
make
difference.
equivalent
it
the
to
of difference..
Methods of
The nature
agreement and differ-
AU
ence.
of
other two,
iticonclusive, unless it is
Indeed the method of agreement
method
of the
applications
events
Every
of these
may
effect is
of which are
is
be regarded as
as follows
effects of
:
antecedent causes.
preceded by a group of events, one or more true
its
methods
cause or
and
causes,
all
of
which are
possible causes.
The problem
between the possible and
discriminate
to
is
the true causes.
whenever the
If
constant
one possible
cause
the
and
recurs,
causes precedes
its
the
extent
when
occurrence,
of possible
causes
a
particular
which
absent
set
of possible
co-exist,
one only being absent,
when
it
when
the effect was
was not produced,
The following
Illustrations.
materials
are
each case soap are
* 3.
illustration
makes the matter
mixed together is
on
produced, and in
two of the materials so mixed.
1.
The
The joint
of residues.
is
Arguments founded on such a arguments on the method of difference.
true cause of the effect. are
the
and does not occur when the
the possible cause which was present produced, and was
to
arguments on the method of agreement.
occurs
effect
of things
is
Arguments founded on such a
causes vary.
state of things are
set
cause which
measured by the persistency with which the
other possible
same
possible
probably the true cause, and the strength of this
is
probability is
If
one possible cause occurs, the
varying, the
causes
possible
other
effect occurs
several
plain.
It is
oil
state
Various
occasions.
each case
the
and
In alkali
probable from this
method of agreement. 2, The method of difference. method of agreement and difference. 4. The method 5. The method of concomitant variations.
1
Rules of Induction.
2
that oil and alkali are the causes of the soap, and the degree, of the probability
is
measured by the number
This
Various
is
of
materials,
which
oU and
of the
This
soap.
oil
alkali, are
would obviously be the same
materials, with
mixed, and soap
of
if
oil
two, are
are
alkali
and alkali
oil
method
the
is
and
The same
produced.
is
produced. The mixture of the the
and
oil
the method of agreement.
mixed, and soap exception
II.
of the experi-
ments and the variety of the ingredients other than alkali.
Chap.
is
not
is
the cause
The
difference.
and
the
alkali
of
case
were
only
Soap was unknown, and upon the mixture being
mixed.
made, other things being unchanged, soap came into existence.
These are the most important of the rules of induction induction
;
but
only one step c towards the solution of the probJ
is
Difficulties
—
^^^^"'^^
In the statement of the rules
causes producing the
for the sake of simplicity that all
—result as
i-
lems which nature presents.
same
of induction
the causes and
assumed
is
it
all
the effects under examination are separate
and independent
facts,
some one
effect.
single
and that each cause This, however,
may be produced by any causes may contribute to the
given effect
Various
This
effect.
is
peculiarly
If that
number
value
of instances,
its
method
not the
A
case.
production of a single in is
small.
is
connected with
one of several causes.
important
method of agreement.
is
is
reference
to
the
applied to a small
For instance, other
substances might produce soap by their combination besides oil
and
alkali,
say, for
that the combination of
instance,
and B, and that of C and
D
would do
were two experiments as follows
A
so.
Then,
there
:
(1)
oil
and
and B, produce
soap.
(2)
oil
and alkaU, C and D, produce
soap.
alkali,
if
A
would be produced in each case, but whether by the combination of oil and alkali, or by the combination of A and
soap
B, or
by that of C and D,
alkali,
A
with A, B,
watch
C
is stolen,
or
by the combination of oil, or D, would be altogether uncertain. or
of
from a place to which A, B, and C only
effect
of ™reement.
:
A
22 Chap.
II.
had
Statement of the Principles of Indiution. Another watch
access.
E
which A, D, and
A
one of three persons one of
is
the watch, but this
stolen
to
only had access.
In each instance,
must have
stolen from another place
is
whom
consistent Avith
is
it
having been stolen by any of the other persons mentioned. This weakness
^Yeakness of the
method of agreement can be cured
of the
method of
only by so great a multiplication of instances as to
agreement
highly improbable that any
make
it
other antecedent than the one
present in every instance could have caused the effect present in every instance.
statement of the theory of chances and
ITor the
on the probability of events, pursue the subject to the
upon
it
;
from the
A
either
but
its
A
observation
or 0,
who wish
many works which have been
general validity
common or B,
I miist refer those
A
wUl be
of
If
life.
or D, and
it
so forth,
same kind, no one could doubt that and the
test
when
applied
is
A
was the
instance,
for
it
had been committed committed
it
;
and
;
relied upon,
then, that one of
lastly, that in
of
thief.
peculiarly liable to error, as
would be necessary
separately in each of the cases
thefts,
such a test as
In the case
each separate alternative requires distinct proof. supposed,
written
by every one was certain that up to A and Z,
It is extremely difficult, in practice, to apply this,
to
inferred
had committed one of a large number of successive the
bearing
its
to
first,
ascertain
that a theft
two persons must have
each case the evidence bore
with equal weight upon each of them. Intermixeffects
and
interfe-
rence of causes with
The intermixture ^^'^
each other
is
of effects and the interference of causes
a matter of
much
greater intricacy
and
difficixlty.
It
may
each other. (1.)
"
take place in one of two ways,
In the one, which
is
viz.
exemplified by the joint opera-
tion of different forces in mechanics, the separate effects of all
the
causes
together, (2.)
"
continue
to
be
produced, but
and disappear in one In the
other,
action, the separate
are
compounded
total."
illustrated
effects cease
by the
entirely,
case
of chemical
and are succeeded
Difficulties.
by phenomena
23
and governed by
altogether different,
different
Chap.
ii.
laws."
In the second case the inductive methods already stated may be applied, though it has difficulties of its own to which I need not now refer.
In the
first case,
any one
i.
e.,
where an
effect
not the result of
is
but the result of several causes modifying
cause,
each other's operation, the results cease to be
Some
cernible.
and in
cancel each other.
by observation any
may
be the
fixed
body,
for
effect of the
action
of
effects.
exactly counteracting each other, but
be inferred from such an
A as
effect
balloon ascends into the
difficulty in
relation whatever between
A
the causes and the
This
Others merge in one sum,
an insurmountable
this case there is often
tracing
separately dis-
instance, is at rest
two opposite
how
forces
are such causes to
?
air.
This appears,
if it is treated
an isolated phenomenon, to form an exception to the theory It is in reality
of gravitation.
though several concomitant
an illustration of that theory
facts
and independent theories
must be understood and combined together before
this
can be
ascertained.
The
difficulty
of applying the inductive
cases arises from the fact that they state
of things
supposed.
assume the absence of the
The subsequent and antecedent
phenomena must be assumed separate observation before
methods to such
it
to be
capable of specific and
can be asserted that a
fact invariably follows another given fact, or that
possible causes
two
given sets of
resemble each other in every particular with
a single exception. It
is
necessary for this reason to resort to the deductive
method, the nature of
which
is
as follows
:
A
by induction is used as a premiss from which consequences are drawn according to the rules of logic, The as to what must follow under particular circumstances. position established
inference so if
drawn
is
compared with the
facts
Deductive
general pro- ™^
observed, and
the result observed agrees with the deduction from the in-
'°
'
——
A
'24 Chap.
II,
;
Statement of the Principles of Induction.
ductive
premiss,
the
inference
phenomenon
that the
is
is
The complete method, inductive and deductive,
explained.
thus involves three steps, Establishing
(1)
practice,
the
by
premiss
comes to
the
induction,
same
thing,
what,
or
by a previous
deduction resting ultimately upon induction (2)
Illustra-
;
Eeasoning according to the rules of logic to a conclusion
(3)
tion.
in
by observation.
Verification of the conclusion
The
whole
process
illustrated
is
and
by the discovery
proof of the identity of the central force of the solar system
known on
with the force of gravity as steps in (1)
were as follows
it
the earth's surface.
The
:
was proved by deductions resting ultimately upon
It
inductions that the earth attracts the
moon with
a force vary-
ing inversely as the square of the distance.
This
is
the
first step,
the establishment
upon
a process resting ultimately (2)
The
amount
moon's
was ascertained with would cause the moon
is
the second
the earth, and the actual
from the tangent being known,
what rapidity to fall if she
more acted upon by extraneous This
induction.
distance from
of her deflexion
by
of the premiss
step,
the
it
attraction
earth's
were no further
and no
off
forces than terrestrial bodies are.
the reasoning, regulated
by the
rules of logic. (3)
Finally, this
calculated velocity being
the observed velocity with which
all
compared with
heavy bodies
fall
mere gravity towards the surface of the earth (sixteen the
first
second, forty-eight in the second,
ratio of the
and
by
feet in
so forth in the
odd numbers), the two quantities are found to
agree.
This
the verification.
The
facts observed agree
with
tlie
facts calculated, therefore the true principle of calculation
has
is
been taken. This paraphrase, for
it is
no more, of Mr. Mill
—
is
I
hope,
•
;
and
Resemblances
and the manner
tigation,
Differences.
show, in general, the nature of
sufficient to
in
propositions about matters
'
which
of fact.
25
scientific inves-
Chap.
II.
aims at framing true
it
It
would be foreign
the present purpose to follow the subject
further.
to
Enough
has been said to illustrate the general meaning of such words
"proof" and
as
tific
to
their application
in
to
judicial
investigations,
it
will
investigations
some
are carried
essential
ever object, are,
they resemble each other.
points
cases whatever,
all
unknown, from
the
to
in
scientific
on.
quiries into matters of fact, of whatever kind
known
scien-
be convenient
compare the conditions under which judicial and In
to
Before inqiiiring into the application of these
inquiry.
principles
"evidence"
our
and with what-
inquiries
present
In-
from
the
perceptions
or
Judicial tific
inqui-
pa^d"— resemblances,
our
present recollection
(which
ception) of past perceptions,
might have perceived,
if
or hereafter should be,
to
is
in
itself
a present
what we might
we now
.
favourably situated for that purpose.
uniformity both in natural events are
perceive, or
were, or formerly had been,
They proceed upon the supposition that there that all events
per-
connected
is
a general
and in human conduct
together as
cause and effect
and that the process of applying this principle to particular cases, and of specifying the manner in which it Avorks, though a difficult and delicate operation, can be performed.
There inquiries is,
are,
however,
which
are
into the order
lated matters of
several
commonly
great
and course of nature, and fact,
whether
much
carefully
Differ-
for judicial
observed before
life.
inquiries into iso-
or historical pur-
These differences
we can undertake with
advantage the task of applying to the one subject the
principles
The
between
called scientific, inquiries that
poses, or for the purposes of everyday
must be
differences
which appear
first
difference
is,
to
be true in reference to the other.
that in reference to isolated events,
can never, or very seldom, perform experiments, but are tied down to a fixed number of relevant facts which can
we
never be increased.
Firstdiffer-
amou^ftof evidence.
A
26 Chap.
The great
II.
In
scienti-
fic
inqui-
ries unli-
Statement of the Principles of Induction. object of physical science is to invent
formulas (perhaps unfortunately called laws) which
sum
certained,
vip
and enable us
to
general
when
as-
understand the present,
mited.
and predict the future course ultimately
of
These laws are
nature.
deduced by the method already described from
individual facts
j
but any one fact of an infinite number will
Serve the purpose of a scientific inquirer as well as any other,
and
in
many, perhaps in most,
facts for the purpose.
In
spaces,
was necessary
different bodies
in
failed, or
observation was inaccurate, or instance,
allowed
the
for,
resistance
if
the
of
to measure the
falling
aud every such observation was an
however, one experiment
through given
isolated fact.
was interfered with,
a disturbing cause,
atmosphere
obviously as
and
much
to
it
for
any one
froiti
set
of
;
experiments were
be trusted as inferences drawn from any unlimited
may, by the way, be observed that the ease
with which this has
been assumed
aigument that the course of being uniform
centuries
as,
an
had not been
relevant facts can be multiplied to a practically
as
if
Thus, with regard to inquiries into physical nature,
set.
extent,
If,
nothing could be easier than to repeat the process
and inferences drawn other
possible to arrange
is
order, for instance, to ascertain the
force of terrestrial gravity, it
time occupied by
cases, it
under
before the
natiire
superficial
modern
in
all ages,
is
does impress variations.
discoveries
in
a strong
mankind
For
many
astronomy were
made, the motions of the heavenly bodies were carefully observed,
and inferences as
upou those useless tliey
observations.
to their
Such observations would have been
and unmeaning, but
had done in times
future course were founded
for the tacit
past,
assumption that what
they would continue to do for
tlie future.
In judicial inquiries limited.
In inquiries into isolated events this great resource available.
Where
the object
a particular occasion,
we
can
is to
is
not
decide what happened on
hardly ever draw inferences of
any value from what happened on similar occasions, because the groups of events which form the subject of historical or
Evidence limited. judicial inquiry are
so
assumed that they will
we wish ago, when
themselves.
sand
If
years
it
can scarcely ever be
that
they have repeated
that
intricate
repeat, or
27
know what happened two
to
quantities
specific
II.
thou-
oxygen
of
Chap.
and
hydrogen were combined, under given circumstances, we can obtain complete certainty by repeating the experiment the whole course of
human
history
;
but
must recur before we could
witness a second assassination of Julius Csesar.
down inexorably to a certain limited amount of evidence. We know so much of the assassination of Csesar as has been told us by the historians, who are to us ultimate authorities, and we know "With reference to such events
we
which experience shows
deductions as
subjects
which
new
or
doubts about
whether they
it,
the
in
re-
writers
on
historical
story
untrustworthy
arise
this
and
subject,
of
historians
at a considerable distance of time
and must remain
any
from inherent improbadetail in the
from general considerations as
character
are,
comprise the whole
for ever
from differences of
itself,
different narratives, or
relate,
by some unforeseen should come to light, a
materials on the subject
human knowledge upon
of
be necessary in
Unless
criticized.
few pages of general history will
they
creased.
and upon the authority
interest their feelings,
not be weighed
and
cannot
which are no longer extant and therefore can-
of materials
accident,
to
made by
true, statements
ceiving
bilities
it
Their testimony must be taken subject to aU the
no more.
amount
are tied
writing on
to
the
hearsay,
from the events which
for
ever,
unsolved
and
insoluble.
Besides accessible
this
in
difference
as
and
scientific
historical
great difference as to the objects to directed. is
two
those
The object
fold,
—the
who
feel
which happens elements of
of
at
also
human
all,
to be
is
of
inquiries,
evidence
there
is
a
which the inquiries are
inquiries into
satisfaction of a it
quantity
to the
the course of nature
form of
curiosity, which, to
one of the most powerful, and
one of the most generally useful
nature; and the attainment of practical
Object of inquiries.
A
28 Chap.
II.
Statemnt of the Principles of Induction.
results of very various kinds.
Neither of these ends can be
by nature have
attained unless and until the problems stated
been solved the
as
far
may be, but at all events truly, as goes. On the other hand, there is no
partially
:
solution
it
pressing
or immediate
scientific
question
is
be discovered after
made
for
necessity
Every
their solution.
for
always open, and the answer to attempts
vain
discover
to
it
may
it
have been
may
thousands of years, or an answer long accepted
be rejected and replaced by a better answer after an equally
In
long period.
short, in
or as near an approach to
and
needful,
scientific it
as can
inquiries, absolute
be made,
So long as any
the constant object of pursuit.
is
one thing
the
is
truth,
part of his proof remains incomplete, so long as any one ascer-
tained
fact
not
does
into
fit
scientific inquirer neither
is,
and exeniplify
nor ought to be,
the
extent,
at
of that
least,
Until he
satisfied.
has succeeded in excluding the possibility of to
his theory, the
possibility,
he
error,
bound
is
suspend
to
his
judgment.
In judicial inquiries
Object of '"" q"uiries.
the case
iiiq.iiiries)
(I
need not here
different.
is
It
notice
necessary
is
historical for
urgent
practical purposes to arrive at a decision which, after a definite
process has been gone through, becomes final and irreversible. It
under these circumstances,
obvious that,
is
the
and the high standard of certainty
suspension of judgment,
required by scientific inquirers, cannot be expected. decisions
made
inquin^es''''
trust-
worthy.
must proceed upon imperfect
materials,
advantage over those fact .
to
that the
j
who conduct
evidence
n
depend upon
than that which
,
and must be
is
of this
which a
scientific
are
have an additional
judicial inquiries, in the
before them, in
so
far
as
thev have
-,
oral evidence, is infinitely
reasons
sions.
Judicial
at the risk of error.
Finally, inquirers into physical science
Evidence
patient
more trustworthy
brought forward in courts of justice. manifold.
In the
first
place,
the
The facts
observer has to report do not affect his pasIn the second place, his evidence about them is not
taken at
all
unless his powers of observation have been
mor0
Evidence of Witnesses. or less trained lie
can liardly
and can be depended upon.
know what
which he observes
In
third place,
tlie
from the
will be the inference
if
he were otherwise
know what
posed to misstate them, he would not
In the fourth
serve his purpose.
place,
Chap.
II.
facts
combined
until his observations liave been
with those of other persons, so that
ment would
29
dis-
misstate-
he knows
that his observations will be confronted with others, so that if
he
is
careless
he would be found
dishonest,
class of facts
and he
or inaccurate, and,
which he observes
In the
out. are,
he should be
if
and a careful
its results.
The very a court of
opposite of
many facts
facts to
.
true as regards witnesses in
which they
which they are more
testify
or less interested,
are, as
.
Evidence Inquiries^ '^s^ '™s'-
worthy. .
strongest passions
are
a
and which
.
cases excite their
The witnesses
degree.
any
all this is
The
justice.
rule, facts in
in
the
specially arranged
for the purpose of securing accurate observatioj^,
record of
place,
fifth
generally speaking, simple,
means
provided with
usually
is
a fortiori,
the highest
to
very seldom trained to observe
or to express themselves
with accuracy upon any
They know what the point at issue is, and how their evidence bears upon it, so that they can shape it according to the effect which they wish to produce. They are generally so situated that a large part at least of what they say subject.
is
to
secure
from contradiction, and the
observe
facts
which they have
being in most instances portions of
human
con-
duct, are so intricate that even with the best intention on the
part of the witness to speak the truth, he accurate,
what So
wiU
and almost always incomplete, in
generally be inhis
account of
occurred. far
it
appears that
our opportunities
and proving the existence of isolated to our opportunities for investigating
which
are
commonly
however, something to the evidence often scanty,
called
is
are
investigating
much
inferior
and proving the formulas
the laws
of nature.
be said on the other
available in judicial
and
facts
for
and
side.
There
is,
Though
historical inquiries
is
always fixed in amount, and though the
Advan'^^|^^;°j
over ries.
scieri-
A
30 Chap.
II.
facts
Statement of the Principles of Indtiction.
which form the subject of such inquiries are than those which attract the
intricate
far
more
inquirer into physical
nature; though the judge and the historian can derive no light
from experiments
;
though, in a word, their apparatus for as-
inquirers
dispose,
and
moreover, by some special
performing
which they have
the task
proportionally easier
which physical
far inferior to that of
certaining the truth is
ambitious.
less
perform
to
It
is
is
attended,
which are great helps in
facilities
it satisfactorily.
The question whether it is in the nature of things possible Maxims more easily i^^i^ formulas should ever be devised by general the aid of ° ' appreciated.
which human conduct can be explained and predicted in the short
manner in which
specific
explained
and
discussion,
and
predicted, is
been
has
not yet decided
phenomena
physical
;
the
subject
are
great
of
but no one doubts that
approximate rules have been framed which are sufficiently precise to be of particular to
in estimating the
of great service
Whether
events.
human conduct can
generality and
or
any
not
ever be enunciated,
accuracy'to
the
proposition
probability
proposition
approaching
as
in
that the force of
gravity varies inversely as the square of the distance, no one
would
feel disposed to
property
who
deny that a recent possessor of stolen
does not explain his possession
the thief or a receiver; or that
document in
if
a
man
is
probably either
refuses to
his possession, the contents of the
when
facts
such rules as these are nearly as useful
as rules of greater generality
of little service
document are
In inquiries into isolated
probably unfavourable to him. for practical purposes,
produce a
and exactness, though they are
the object
is to
interpret a series of facts
either for practical or theoretical purposes.
If,
for instance,
whether a particular person committed a crime in the course of which he made use of water, knowledge of the question
is
the facts that there
was a pump
in his garden,
can be drawn from a well by working the
and that water
pump
handle,
useful as the most perfect knowledge of hydrostatics.
is
But
as if
the question were as to the means by which water could be
1
External Nature and supplied for a house and
Human
Nature.
3
during the year, considerable
field
knowledge of the theory and practice of
Chap.
Ii.
hydrostatics and
of various other subjects might be necessary, and the
more
extensive the undertaking might be, the wider would be the
knowledge
To
reijuired.
this it
must be added that the approximate
rules
which
human conduct are warranted principally by each man's own experience of what passes in his own mind, corro-
relate
to
borated by his observation of the conduct of other persons,
which every one that
their
upon the hypothesis
obliged to interpret
mental processes are substantially similar to his
Experience appears to show that the results given by
own. this
is
process
correct within narrower limits of error than
are
might have been supposed, though the limits are wide enough
room
to leave
for
the exercise of a
amount
great
of indi-
vidual skill and judgment.
circumstance
This
the rules
invests
conduct with a very peculiar character. expressed with
little
precision,
human
relating to
They
are usually
and stand in need of many
exceptions and qualifications, but they are of greater practical
use
than
rough
generalizations
of
the
same
kind
about
physical nature, because the personal experience of those
whom
they are used readily supplies the qualifications and
exceptions which they require. these
:
by
'
heavy bodies
fall
to
Compare two such the
sessor of stolen goods is the thief
ground,'
The
'
the
rules as
recent pos-
rise of a balloon into
the air would constitute an unexplained exception to the of these rules, which might throw doubt
upon
its
first
but
truth,
no one would be led to doubt the second by the fact that a shopkeeper doing a large trade had in his till stolen coins shortly after they
Every one would
had been stolen without having
stolen them.
see at once that such a case formed one of the
many unstated exceptions we know external nature
to
the rule.
The reason
is,
that
only by observation of a neutral,
unsympathetic kind, whereas every
man knows more
nature than any general rule on the subject can ever
of human tell
him.
Their limi^oreeasily perceived,
A
32 Chap.
Statement of the Principles of Induction.
To these
II.
Judicial
whether an isolated
aresim™llr
to
tifk
pro^'
biems.
fact
The process
depend upon
The inquiry
happen.
class
compass.
it
and prove the rule according
ascertain
a given
must be added that to inquire exists, is a far simpler problem than
considerations
to
The deductions
which
of
inductions,
previous
of
facts
within a smaUer
falls
generally deductive.
is
which
truth
the
is
generally recognised, and which (at least in judicial inquiries)
directly
judge.
and
so
of
advantage just noticed
appealing
sympathy
and
experience
personal
the
to
the
in
generally share
the
of
The deductions, too, are, as a rule, of various kinds cross and check each other, and thus supply each
other's deficiencies.
may be
inferred
motive to commit a crime,
say the
For instance, from one
lUustrations.
that
A
had a strong
B
A
In
poison. true,
of
it
(1)
the
by
A,
Each separate
number
A
If
falls
he
does, various
of
and
(3)
B
by poison, motive
the
proposition, as
B
died
which would explain the poison
the
propositions
and the
had a motive establishing
about
a murderer.
is
it
fact
of
is
for
its
like, are
for
administration.
narrows
established,
upon the
true,
the administration
(2)
subject.
;
of his
When
the it
is
when
which
B
death consistently with it
is
proved that
died,
excluded
;
when
A
ad-
every supposition,
consistent with A's innocence, except those fication,
of
class
poison, innumerable hypotheses
of
A's innocence are excluded ministered
died.
such propositions are supposed to be
death
that
small
B
no two of which have any necessary con-
of possible hypotheses
established
within the
upon the hypothesis that he
this case three
viz.,
may be
set of facts it
administered the poison of which
whether
is,
nection, except
it
died of poison, and from another independent
set of facts that
The question murderers by him must be
of facts
From an independent
murder of B. inferred that
series
of accident, justiit is
shown that
A
administering the poison, the difficulty of
any one of these hypotheses,
e. g.,
accident,
is
largely increased,
and the number of suppositions consistent
with innocence
narrowed in a corresponding degree.
is
—
—
Summary.
*
33
This suggests another remark of the highest importance in Chap.
ii.
such
?" judicial
inquiries in all civilized countries are, or at least ought to be,
parties in-
estimating the real weight of judicial inquiries.
It is that
tcrGstcd.
conducted in such a manner as to give every person interested in the result the fuUest possible
opportunity of establishing
the conclusion which he wishes to
A
tration just given
would have
to explain the fact that
and every opportunity
at once the strongest
small
Hence
to do so.
B
he failed to do
it,
member
else a
persons
of
class
if
fj"!^™'"^^ heai-d.
motive to
of that inii-
who, having a motive to
commit murder, and having administered poison
whom
illus-
he had administered the poison
he would either be a murderer or nitesimally
In the
establish.
have op-
to the person
they have a motive to murder, are unable to suggest
any probable reason
for
supposing that they did administer
it
innocently.
The
up
results of the foregoing inquiry ,
r.
shortly
summed
The
matters
:
problem
of discovering
which are
truth
the
investigated
judicially
general problem of science,
—the discovery
in
relation
a part
is
of
to
the
of true propositions
as to matters of fact.
The general
II.
solution
of this
problem
is
contained in
the rules of induction and deduction stated by Mr. MiU, and
employed
generally
for
purpose
the
conducting and
of
testing the results of inquiries into physical nature. III.
By
cause and
standing towards each other in
effect,
and we are able
to argue
be
the relation
of
and precision
with which the
relevant
proportionate facts
have
facts
from the cause to
the effect and from the effect to the cause certainty
may
due application of these rules
the
exhibited as
to
with a degree of the
completeness
been observed or are
accessible.
IV.
The leading
and inquiries 1.
In
Summai-y of results.
ioUows
as
may be
,,
differences
between judicial investigations
into physical nature
physical
inquiries
the
are as foUows
number
of
:
relevant facts
is
A
34 Chap.
II.
Statement of the Principies ofInduction.
generally unlimited, and
capable of indefinite increase
is
by
experiments.
In judicial investigations the number of relevant facts limited 2.
may
by circumstances, and
Physical
be required in order to obtain
when a
clusion reached, and is
always liable to review
any
incapable of being increased.
is
can be prolonged for any time
inquiries
objection
arrived
is
proof of the con-
full
conclusion has been reached,
if fresh
the
to
thab
facts are discovered,
by which
process
it
or if
was
it
at.
In judicial
investigations
is
it
in a limited time
result
definite
arrived
made
is
at, it is final
and
;
necessary
and when
irreversible
arrive
to
at
that result
a is
with exceptions too rare
to require notice. 3.
In physical
established
the
inquiries
by testimony open
to simple facts
which do not
to
relevant facts
are
usually
no doubt, because they
affect the
relate
which are
passions,
who are exposed to detection if and who could not tell the effect of
observed by trained observers
they
make
mistakes,
misrepresentation, if they were disposed to be fraudulent.
In
They
complex.
the
inquiries
judicial
affect
relevant
facts
are
generally
the passions in the highest degree.
by untrained observers who are generally not open to contradiction, and are aware of the bearing of the facts which they allege upon the conclusion to be established. They
4.
are testified to
On
other hand,
the
more useful in the
because in
approximate generalizations
judicial than they are
case
in
scientific
of judicial inquiries
are
inquiries,
every man's indi-
vidual experience supplies the qualifications and exceptions necessary to adjust general rules to particular facts, which
not the case in regard to 5.
scientific inquiries.
Judicial inquiries being limited in
of reaching as good a conclusion as
materials scientific
is
far
easier than the
conclusion
conclusion
arrived at
with is
is
to
process
complete
less
is
extent,
process
be got out of the of
establishing a
certainty,
satisfactory.
the
though the
Degrees of Probability. It follows
35
from what precedes that the utmost result that Chap.
can in any by iudicial evidence ^ case be produced jT J d
Whether upon any
high degree of probability. .
ever more than this
amounts
of scientific proof
— whether
quines
subject what- usuallypro.
the highest form
more than an
to
Judical ma very J
duce only a very high
assertion that a pr^abiUty
order in natui-e has hitherto been observed to take
certain place,
.
possible
is
is
II.
and that
if
order continues to take place such
that
and such events will happen, are questions which have been
much
discussed, but
sent inquiry.
However
show why courts lower
degree
which
of
lie
this
may
be, the reasons given
than
rightly
is
can under
above
demanded
The highest probability
scientific investigation.
of the pre-
have to be contented with
justice
of probability
court of justice
beyond the sphere
a in
which a
at
ordinary circumstances arrive
is
the probability that a "witness or a set of witnesses affirming
which they say they perceived by
existence of a fact
the
their
own
senses,
and upon which they could not be mis-
taken, teU the truth.
It is
difficult
measure the value of
to
such a probability against those which the theories of physical inquirers produce, nor would it serve any practical purpose to
attempt to do
so.
It
is
enough
to
by which a comparatively low degree to exist in the one case
is
say that the process
of probabihty
is
shown
identical in principle with that
which a much higher degree of probability
shown
is
by
to exist
in the other case.
The degrees of probability judicial
inquiries
measurement
are
attainable
infinite,
in scientific and in
and do not admit Cases might
or description.
easily
of
exact ^mora'l'''
be men- "rtamty-
tioned in which the degree of probability obtained in either is
so high, that
if
there
is
any degree
kind than the knowledge of
any
practical
purpose
to
of
knowledge higher in
probabilities, it
distinguish
is
impossible for
between
the
two.
Whether any higher degree of assurance is conceivable than that which may easily be obtained of the facts that the earth revolves round the sun, and that Delhi was besieged and taken by the English in 1857,
is
a question which
Degrees of
does not
A
36 Chap.
II.
Statement of the Principles of Induction.
belong to this inquiry. clusions
From of
as
these
these
down
the
Tor
may
faintest
person has committed of
described
as
suspicion there
crime,
a
absolutely
is
a descending scale
which does not admit of any but
probabilities
it
worth
certainty,
noticing
and
which he happens which he Moral
cer-
tainty
is
What
u
question of
pni ence.
act
moral
called
upon under the circumstances in reference to the matter of
to be placed in
said to
is
very
The only point
commonly
is
a
means simply such a degree of probability
this
man would
as a prudent
what
is
certain.
particular
a
that
rough measurement for practical purposes. in
such con-
about the inhabitants
to the faintest guess
and the
stars,
be
practical purposes
all
morally certain.
be
moral certainty
Constitutes
is
thus a question
.
.
prudencB, and not a question of calculation.
of
commonly
It is
^^^^ j^ reference to judicial inquiries; that in criminal cases guilt
ought to be proved " beyond
that ia civil side ttiis
it
a
which
the decision ought to be in favour of the
cases
most probably
is
rule there is
reasonable doubt," and
all
no
objection,
To the
right.
though
it
latter
which character
is
For instance,
at stake partakes
of the nature of a criminal proceeding
;
of
should be added that
cannot be applied absolutely without reserve. civU. case in
part
but the
more
first
or less
part of the
means nothing more than that in most cases the punishment of an innocent man is a great evil, and ought to be carerule
fully avoided
;
but
sible to eliminate
uncertainty from
that,
on the other hand,
often impos-
an appreciable though undefinable degree of the
decision that
danger of punishing the innocent expression "
it is
a
man
is
guilty.
The
marked by the use of the
is
no doubt," the necessity of running some degree
of risk of doing so in certain cases " reasonable."
intimated by the word The question, what sort of doubt is " reason-
able " in criminal cases case ever occurs
in
is
is
a question of prudence.
which
it is
Hardly any
not possible for an ingenious
person to suggest hypotheses consistent with the prisoner's innocence.
The hypothesis
of falsehood
on the part of the
witnesses can never be said to be more than highly improbable.
Mr. MiWs Though different
it
probabilities
possible to
what Mr.
how
not,
impossible
is
Principle. invent
to
any rule
can be precisely valued,
say whether or not they
ilill describes as the
Method
same
the
in
by which
it
always
is
and
of Difference;
The principle
it.
be
arranged
and
classified
is
hypothesis except one
is
inconsistent with one or
that one hypothesis
facts,
hypothesisis consistent with the
reasonably probable— that
may
the
to
thod
'ofdif-
ference.
different
or
existence of
with the
reference
Principle
unknown or suspected facts, by which the the known facts can be accounted for. If every
hypotheses,
known
cases,
^\-ith
ii.
if ^at'of Mr.
however complicated or however simple, and whether the nature of the inquiry is scientific or judicial. In all cases the known facts must all
Chap.
conditions of tingproba-
the
fulfil
nearly they approach to fulfiHing
precisely
37
common
is
is
proved.
known
more
of the
more than one
If
but one only
facts,
is
to say,'if one only is in accordance
course of events, that one in judicial inquiries
be said to be
proved "beyond
The word and uncertain quantity
all
reasonable
doubt."
" reasonable " in this sentence denotes a fluctuating
allowed), and
ceedings
is
of probability
the expression
shows that the lUtimate question
may
be
in judicial pro-
and must be in most cases a question of prudence.
Let the question be whether
cumstances
(if
are
such that
A
the
act
did a certain act
;
the
must have been
cir-
done
lUustra''°""
by somebody, but it can have been done only by A or by B. If A and B are equally likely to have done the act,
the matter cannot be carried
"Who did
it ?
must remain undecided.
have been done by one person, strength, child, it
and
may
further,
if
A
is
if
it
and the question
But
the act must
if
required
an exceedingly powerful
great physical
man and B
be said to be proved that B,did
it.
If
A
a is
stronger than B, but the disproportion between their strength is less, it is
B may
A
did
and so
on.
probable that
have done
it,
it,
but not impossible that
In such a case as this a
nearer approach than usual to a distinct measurement of the probability
is possible,
but no complete and definite statement
on the subject can be made.
_/"/.
f
—
A
38 Chap.
II.
^ufrie'fin"-'
Statemeni of the Principles of Induction.
Jii'iicial
volve two
process
inferences,
mine
inquiries
by which they
the
chief
and the general nature of the
directed,
are
are carried on,
forms
it
be well to exa-
will
somewhat
process
that
of
which
of the object towards
Such being the general nature
more
particularly. It
be found
will
employed in judicial (1)
Inferences
upon examination that the inferences inquiries fall under two heads :
from an
assertion,
whether
or docu-
oral
mentary, to the truth of the matter asserted. (2)
upon the strength of such facts of which the existence
Inferences from facts which,
assertions, are believed to exist, to
has not been so asserted.
For the sake of simplicity, I do not here distinguish various subordinate classes of inferences, such as inferences from the
manner
which
in
assertions are made, from silence,
from the
absence of assertion, and from the conduct of the parties.
They may be regarded
may
as
so
many forms
of assertion,
and
therefore be classed under the general head of inferences
from an assertion to the truth of the matter asserted. Direct and stantiai
evidence.
This
is
the distinction usually expressed
evidence
either
is
circumstantial
or
direct
by saying that aU I
avoid
the
use of this expression, partly because, as I have already ob-
whereas
cir-
cumstantial evidence means a fact on which an inference
is to
served,
direct
be founded,
evidence
means
and partly
for
direct
assertion,
the more important reason that
the use of the expression favours an unfounded notion that
the principles on which the two classes are different,
and that they have
of inferences depend
different degrees of cogency,
The truth is that each inference the same general theory, though
which admit of comparison. depends
upon precisely
somewhat
different
considerations apply to the investigation
of cases in which the facts testified to are
many, and
to cases
in which the facts testified to are few.
The general theory has been the question
is,
are the
a;lready stated.
known
other than the conclusion
facts
suggested
?
In every case
inconsistent with
The known
any
facts
in
—
Direct
and Circumstantial
Evidence.
39
every case whatever are the evidence in the narrower sense of
The judge hears with
the word.
his
the witnesses and sees with his
of
produced in court. sees
and
His task
hears, the
is to
own ears own eyes infer,
Chap.
II.
the statements the documents
from what he thus
existence of facts which he neither sees
nor hears. Let the question be whether a will was executed. witnesses,
entirely
they witnessed
above suspicion, come and
its
These
execution.
which the judge hears possible suppositions,
that
testify
are
assertions
Now
himself.
for
Three
facts
are three
there
and no more, which the judge has
consider in proceeding from the
known
to
the assertion of
fact,
the witnesses that they saw the will executed, to the fact to
be proved
—the actual execution
of the will
(2)
The witnesses may be speaking the The witnesses may be mistaken.
(3)
The witnesses may be
(1)
and
(3)
i. 6.,
be proved.
as to render suppositions
improbable in the highest degree, and generally
speaking they would be thesis,
truth.
telling a falsehood.
The circumstances may be such (2)
:
so.
In such a case the
hypo-
first
that the will really was executed as alleged, would
The
facts before the
judge would be inconsistent
with any other reasonable hypothesis execution of the
except
that
This would be commonly
will.
of
the
called
a
case of direct evidence.
Let the question be whether
A
committed a crime.
The
which the judge actually knows are that certain witnesses made before him a variety of statements which he
facts
believes to
be
true.
establish certain facts
The
result
of
these
which show that
statements
either
A
or
B
is to
or
C
must have committed the crime, and that neither B nor In this case the facts before the judge would did commit it. be inconsistent with any other reasonable hypothesis except This would be commonly that A committed the crime. called
a
case
of circumstantial
evidence; yet
it
is
obvious
that the principle on which the investigation proceeds as in the
Illustra-
,
A
4-0
Chap.
II.
last case is identically the
number
the
The only
same.
no new principle
of inferences, but
method
tl^e
by Mr.
of difference as explained
in
difference is
introduced.
is
with
It is also clear that each case is identical in principle
Identity of
with Mr.
Statement of the Principles of Induction.
Mill.
^^- Mill's illustration of the application of that method to
tHeonr
the motions of the planets
is as
follows
:
—The planets with
The planets
central force give areas proportional to the times.
without a central force give a different set of motions
;
but
Therefore there
areas proportional to the times are observed. is
a
a central force. Similarly in
the cases
The
suggested.
witnesses give the execution of a will,
*.
of the
assertions
no other cause
e.,
can account for those assertions having been made.
had not been executed those assertions would not have
will
But the
been made. will
If the
were
assertions
Therefore the
made.
was executed.
Though
inferences
an
from
assertion
to
truth,
its
and
inferences from facts taken as true to other facts not asserted to
be
true, rest
upon the same
has
principle, each inference
its
peculiarities.
The inference from the
Inference
from
assertion to the truth of the matter
asser-
.
tion to
asserted
matter as-
T,i.i
serted.
little
rightly,
lot
easy matter, callmg for
i
in particular cases
certain sense
it
an
remark.
Though a
regarded as
iisually
is
is
it is
by
of a judge
it is
always easy, to deal with, to deal with
far the
most
difficult
and miscarriages
by dealihg with
variably caused
and though in
really easy,
task which justice
it
wrongly.
the
almost in-
are
of
falls to
This requires
full explanation.
To is
infer
from an assertion the truth of the matter asserted,
The
in one sense the easiest thing in the world.
process consists of only one step, and that gives no trouble,
But
to
true
is
and
is
is
taken in most cases
intellectual
a step
which
unconsciously.
draw the inference in those cases only in which a matter of the utmost difficulty.
affirm the proposition, " All
men upon
all
If
we
it is
were able to
occasions speak the
Inference frofn Assertion. truth/' the so," "
remaining propositions,
Therefore
major premiss, however, are not forced
upon the
were, the judge has
and
or not,
How
to
is it
says so and Chap.
Moreover,
means
often no
which
to
they
if
whether
of ascertaining
what extent they apply
any particular
case.
how far the powers of observaman seen once for a few minutes
possible to tell
and how
enable him,
one or more of which he
may
be actuated dispose him, to
on which he
the truth upon the matter
testifies
?
least
as
its
A
cool,
man
steady
contradiction will
baffle
liar
not shaken by
who happens
who
it
it
ought to be
not to be open to
the most skilful cross-examiner in
the absence of accidents, which are not so tice as persons
who
application wiE. be disposed to trust
a proof that a
believed.
tell
Cross-
examination supplies a test to a certain extent, but those
have seen most of
its difficul-
innumerable motives by any
the
far
II.
The
difficulty.
subject to wide exceptions,
is
judge's attention.
and memory of a
tion
man
This
"
would present no
true,"
it is
—
41
take their
notions
common
in prac-
on the subject from
anecdotes or fiction would suppose.
No
of evidence
rules
which the
perceptibly affect this difficulty.
legislator
can enact can Cannot be
Judges must deal with
it
by the use of their natural faculties and acquired experience, and the miscarriages of justice in which they wiU be involved by reason of it must be set down to The the imperfection of our means of arriving at truth. natural and acquired shrewdness and experience by which an as well as they can
observant is
man
not lying,
forms an opinion as to whether a witness
is
by
far the
qualifications, infinitely
most important of
all
or
a judge's
more important than any acquaintance
with law pr with rules of evidence.
No
which the
not required
exercise
is
of this faculty
is
trial
ever occurs in ;
but
it is
only in exceptional cases that questions arise which present
any
legal difficulty,
or
in
which
it is
necessary to exercise
any particular ingenuity in putting together the which the evidence tends
to establish.
important power for a judge
is
different facts
This pre-eminently
not to be learnt out of books.
^^f^'^g'^f^^
evidence,
A
42 Chap.
II.
In so
Statement of the Principles of Induction.
far
as
it
can be acquired at
all,
it
is
be acquired
to
only by experience, for the acquisition of which the position of a judge
by no means peculiarly favourable. People come before him with their cases ready prepared, and give the evidence which they have determined to give. Unless he knows them in their unrestrained and famuiar moments, is
he will have great believing one
may
provide
man tests,
value
the
quality of the materials is
of
drawn from a
may
upon which
logical
Grounds
satisfied that
be
their
tells
the truth or
the
judgments are to ;
but they
know whether
what inference
or not is
to
be
The correctness with which done must depend upon the natural sagacity, the power, and the practical experience of the judge,, not
is
upon
rules of evidence
not open to certain obvious objections
a particular witness
for
which has been proved by
do not profess to enable the judges to
this
The
rather than another.
long experience, by which judges
proceed
any good reason
diificulty in finding
his
particular fact.
acquaintance with the law of evidence.
The grounds
for believing
or disbelieving particular state-
witness.
ments made by particular people under particular circummay be brought those which under three heads, °
Power.
affect
inganddis-
—
behevinga gtanccs
the power of the witness
which
affect
his
wiU
do so
to
;
to
speak the truth; those
and those which
arise
from
the nature of the statement itself and from surrounding cir-
cumstances. his
A
man's power to speak the truth depends upon
knowledge and his power of expression.
His knowledge
depends partly on his accuracy in observation, partly on his
memory, partly on pression depends
his
upon an
and varies in relation •yviu.
A
presence of infinite
mind number ;
to the subject of
his
power of ex-
of circumstances,
which he hag
to speak.
man's will to speak the truth depends upon his educa-
tion, his character, his courage, his sense of duty, his relation
to the particular facts as to for the
which he
is to testify,
his
humour
moment, and a thousand other circumstances, as
presence or absence of which in any particular case difficult to
form a true opinion.
it is
to the
often
Poor Reason for
Probability a
The
third set of reasons are those
Belief.
43
which depend upon the Chap.
ii.
probability of the statement.
Many
discussions have taken
improbability
of
which can never
place
statement upon
a
on the
under judicial consideration.
fall
necessary to enter upon that
subject here.
observe
that whilst
is
un-
Looking
at
the
for disbelieviag it if
its
is
in practice, a conclusive reason
probability
is
a poor reason for believing
upon uncorroborated testimony. Probable falsethose which an artful liar naturally tells and the ;
that
occurs
is
Upon
good
a
opportunity
the commonest of
all
for
telling
reasons for
such a falsehood
its
being told.
must be admitted that little that is really serviceable can be said upon the inference from an assertion to the truth of the matter asserted. The observations of which the matter admits are either generalities too vague to be of
the whole,
much
that they
it
practical use, or they are so narrow
Such observations
thrown by those who make them do
into
are seldom,
if
it
would be impos-
The most acute observer would never be
so.
ever
the form of express
Indeed, for obvious reasons,
propositions. sible to
and special
can be learnt only by personal observation and
practical experience.
able
to catalogue the tones of voice, the passing shades of expression
or the unconscious gestures which he
with falsehood
be of
little
this sort
;
and
if
he
himself,
for
had learnt
did, his observations
use to others.
important to
to associate
would probably
JEvery one must learn matters of
and though no
a judge, no
rules
can
sort of
be
knowledge
laid
down
is
for
so its
acquisition.*
* I
may
give a few anecdotes which have no particular value in " I always used to look themselves, hut which show what I mean. at
stateni°ent.
it rests
hoods are fact
it,
be,
Pipba-
sufacient
it is
the improbability of a statement
may
always a reason, and
cases
It
matter merely in relation to judicial inquiries, to
in
credibility
its
of the
effect
the witnesses' toes
friend of
when
I
was cross-examining them," said a
mine who had practised
they began to
lie
they always fidgeted
"
As soon as I knew a about with them."
at the bar in Ceylon.
Expefjf'"^ni'^
guide on
—
A
44 Chap.
Statement of the Principles of Induction.
If the
II,
™"^ite
opinion
class of cases in
a
it
man and
railway carriage.
The
man
history of either.
a
woman
are
alone in
travelling
train stops at a station,
is
known about
The woman
is
he
not betrayed on cross-exami-
them
is
a bet, but
easier to deal satisfactorily with the
may
from
of syllogisms in this form
make
most com-
an assertion
to
the
be shown by stating them
They may be considered
logically.
it is
inference.
inferences
matter asserted
truth of the
as
anything
easy to
It is easy to decide
of
denies.
the character or previous
like so great.
The uncertainty
a
and the woman
the difficulty of arriving at a satisfactory decision
and lengthy chain of
?
There are no cases in which
nation into any inconsistency.
plicated
come
depend upon the
with indecent conduct, which
Nothing particular
it is
any
of the case, incapable of corroboration
For instance, a
the
Is there
so difficult to
those which
as
—
testimony of a single witness uncorroborated,
by the nature
charges
in practice,
is,
satisfactory decision
explicit, direct
and,
which
:
would
I
strange,
attention to the following illustration
tion^''^'^"
to
advanced appears
here
as being the conclusions
:
Judge who formed the opinion that a letter had been forged because the expression " that woman " which it contained appeared to him to be one which a woman and not a man would use, and the question was whether the letter in question had been forged by a woman. In
Lord Keeper Guildford it is said that he always acted on the principle that a man was to be believed in what he said when he was in a passion. The commonplaces about the evidence of policemen, children, women, and the natives of particular countries belong The only remark I feel inclined to add to what is to this subject.
the
Life of
commonly to tell
said
on
it is
that, according to
the truth, which implies accurate
the relative importance of
facts,
proportioned to each other,
suppose to
it
is
my
observation, the
observation, knowledge of
and power of
much
less
power
description, properly
common than
people usually
to be. Ic is extremely difficult for an untrained person not
mix up inference and
to distinguish
assertion.
It is also difficult for
such a person
between what they themselves saw and heard and what
they were told by others, unless their attention to the distinction.
is
specially directed
Inference from All
men
situated
such
in
Broad
45
and such a manner speak the
truth or speak falsely (as the case
A
Facts.
may
chap.
ii.
be).
B, situated in such and such a manner, says so and
so.
Therefore, in saying so and so, he speaks truly or falsely
the case
(as
This
is
be).
a deduction resting on a previous induction,
obvious
is
may that
the
induction
which furnishes
and
it
major
the
premiss must always be exceedingly imperfect, and that the truth of the miaor premiss which is
always more or
is
essential to the deduction
less conjectural.
In many cases the defects of inferences of the- first kind may be incidentally remedied by inferences of the second kind, namely, inferences from facts which
on the ground of such
by the court
assertion, believed
not asserted to exist
exist, to facts
;
asserted, and,
are
and these
to
Inference
proved to otherwise proved,
now proceed
I
to examine.
have observed that the inference from an assertion to the
I
inference
from
truth
the
01
matter asserted often
In very many instances, which
appears to be. to recognise assertion,
when they
even by a single witness of
is
tradiction.
mass of that a
is,
A
number
combined
of
is to
falsehood.
may
allege
sort
fair,
were
known,
is
that
open to con-
be,
may
outweigh a
Suppose, for iastance,
have been
witnesses
be proved at a
magistrate of the
easier
and upon which
called
to
fair
district,
prove
an
on a given day they were
present together with the person on behalf of
aim the
much
little is
itself,
single assertion of this
artfully
always
Suppose, for instance, that the matter
or for aught he can tell
aim, and that they all
whom
of a character indifferent in
the witness
it is
it
occur than to reduce to rule, a direct
entitled to great weight.
asserted
easy as
as
is
whom
held at a certain place.
whose duty
it
was
to
the
If the
superintend
to depose that the fair did not begin to
be held
day subsequent to the one in question, no one would doubt that the witnesses had conspired together to give false In this evidence by the familiar trick of changing the day. tiU a
case one direct assertion
would outweigh many
direct asser-
asser-
tion to
thnes^"™^" really easy.
A
46 Chap.
II.
Statement of the Principles of Induction.
Why ?
tions.
be a
man
Because the magistrate of the
of character
and position
must assume) be quite issue
indifferent
because he would (we
;
the particular case in
to
known
to a vast
contradiction,
and
;
number
lastly,
because the feet would
of people, and he
and
detection,
ruin
adultery
testi-
Suppose,
was asked whether he had committed
His denial would carry hardly any weight in any
?
conceivable case, inasmuch as the charge
man would
is
one which a guilty
man
always deny, and an innocent
could do no
In other words, since the course of conduct supposed
more.
one which a
is
falsely.
explicit
same man might be worthless.
of the very
instance, that he
for
would be open
he spoke
if
Change these circumstances, and the equally
mony
it
and on which he
his official duty to be cognizant,
could hardly be mistaken
to
would
because he would be deposing to a fact of which
;
would be be
district
man would
certainly take whether he were
innocent or not, the fact of his taking
it
would
afford
no
criterion as to his guilt or innocence.
Now
in almost
all judicial
proceedings a certain
number of
assertions
made under such
circumstances that no one would seriously
doubt their truth.
facts
are
by
established
direct
Others are rendered probable in various degrees, and thus the
judge
furnished with facts which he
is
inferences
his
to the
as
may
use as a basis for
existence of other facts
which are
by
unsatis-
These inferences are generally considered to be more
difficult
either not asserted to exist or are asserted to exist,
factory witnesses. Such
in-
ferences
comparatively easy,
to
draw than the inference from an assertion to the matter
asserted.
In
is far
fact, it
easier
to
combine materials sup-
posed to be sound, than to ascertain that they are sound. the
one case no rules for the judge's guidance can be laid
No
down. can
In
process
afterwards
be
is
gone through, the correctness of which
independently
nothing to trust to but his
In the
other
case
all
process with which, as
own
that J\Ir.
is
tested.
The judge
has
natural and acquired sagacity.
required
is
to
go through a
Huxley remarks, every one has a
—
Converging Probabilities. general superficial acquaintance tested
and the theory of which to follow out
The
by every-day
practice.
must ultimately
combined by any of the recognised combination of them aU.
they
aU
are
directed
to
make
instances omissions
it
be
method of
by
difterence.
reach
it
this plain.
small
in
sum
a book is.
in
that the
The account-
accidental.
found that in a long
series
of
sums have been made, each
of
is
of small
enter
His defence
it.
entry was
the
examined, and
is
not
did
have entered
make
to
and
employer,
which he ought book
though they
embezzled a
has
or
Facts must
indeed, at which
object,
illustrations will
A
may
logical methods,
same,
fulfil
say a particular rupee which he received on ac-
count of his
omission
The
the
is
by different roads. A few The question is, whether of money,
ii.
and apply.
the conditions of the method of difference, but they
a
Chap.
easy to understand and interesting
it is
supposed to be proved
facts
47
This, in the absence of which omissions is in A's favour. explanation, would leave no reasonable doubt of A's guUt in
each and every
account
such
for
systematic fraud.
would be practically impossible
It
case.
except
facts
upon the
assumption
Logically, this is aniustance of the
to
of
Method
number of instances as to When, however, this is exclude the operation of chance. done, the Method of Agreement becomes a case of the Method of
Agreement applied
to so great
a
of Difference.
The well-known
number
cases
which
in
guilt
inferred from a
is
of separate, independent, and, so to speak, converging
probabilities,
principle.
B was
may
be regarded as an illustration of the same
Their general type
murdered by some
is
as follows
:
one.
Whoever murdered B had a motive
for his murder.
A
had a motive for murdering B. Whoever murdered B had an opportunity
A
had an opportunity
for
murdering B.
murdering B.
Whoever murdered B made ofB.
for
preparations for the murder
Converblbfii^e°'
A
48 Chap.
II.
A for
Statement of the Principles of Induction. manner which might amount
acted in a
a preparation
to
murdering B.
In each of these instances, which might of course be indebetween the ascertained hypothesis
that
A
of agreement
item
one
multiplied,
finitely
fact that
established
is
B was murdered and
murdered him; and
sometimes
does
it
happen that these coincidences may be multiplied extent
and may be of such a character as
to
to
such an
exclude
the
A
was
supposition of chance, and justify the inference that
and there
I'he case, however, is a rare one,
guilty.*
the
is
always
a great risk of injustice unless the facts proved go beyond
the mere
multiplication
cating guilt, and
circumstances
of
amount
separately
indi-
a substantial exclusion of every
to
reasonable possibility of innocence. Illustra-
The
in Lord
passage
celebrated
Macaulay's
Essays in
tion.
which he seeks
author of Junius 's this
kind.
prove that
to
The
an instance of an argument of
letters, is
he
letters,
PhUip Francis was the
Sir
says,
show
may
be predicated of Junius, whoever he these five facts
may
and of no one
else.
Whether
proceeds Rule
as to
The
corpus delicti.
will
ment
is
in which
be done by
cases
it
which
the method
it.
This
is
it
would be
on which
it
be inferred from It
that
most
no
are
probable that injustice' the method
of
of agree-
those in which the existence
circumstances
the foundation of the well-known rule
delicti
independently.
is
has to be inferred from
fact
the corpus
proposition
a question to
the application
to judicial inquiries
of the principal
that
is
argument
this
legitimate there can be no doubt.
cases
pointing to
can
But
have been.
any part of
here, but that
refer
facts
five
be predicated of Sir Philip Francis
also
can in fact be sustained, impertinent to
that
should other
has
not facts,
in
general
but
should
in
be proved
been sometimes narrowed
one should
be
criminal
convicted of
to
the
murder
unless the body of the murdered person has been discovered.
*
Ste TUchaiclson's Case,
p.
68.
Rule as Neither of these rules application
of
the
Corpus
to
more
is
general
Delicti.
than a
principle
circumstances are such as to
make
49 and
rough
partial
il.
If the
above.
stated
Chap.
morally certain (within
it
the definition given ahove) that a crime has been committed, the inference that
it
was
committed
so
any other
as safe as
is
such inference.
The captain
of a ship, a thousand miles from any land, and
with no other vessel in
sight, is
pursued by several mutinous
captain
A
is
The cabin
The
in confusion, and the
is
never seen or heard of again.
Immediately at
of a struggle
of the vessel.
person looks at his watch and returns
snatch
his cabin,
soon afterwards come
sailors
command
out of the cabin and take the cabin windows are open.
The noise
sailors.
The
and a splash are heard.
to run into
seen
man comes
afterwards a
the watch, which
He
side.
the watch
never found.
In these cases respectively
it is
makes a
and
;
man
he
is
being
arrested
possession,
and
morally certain that murder and theft
were committed, though
body, and in the second the watch Cases, however, do
to his pocket.
The
river
has no watch in his
on the other is
across a
it
past,
disappears.
away and swims
pursued, runs
is
in the
case
first
undoubtedly occur in which the -1
committed at
ence that a crmie has been
the
not producible.
•
71
all is
infer-
.
a mistake,
They may often be resolved into a case of begging the quesThe process is this suspicion that a crime has been tion. committed is excited, and upon inquiry a number of circumstances are discovered which if it is assumed that a crime :
has
been
committed
are
suspicious,
suspicious unless that assumption
A
is
but
which
are not
made.
away under such circumstances that her either by fraud or by accident. loss may be accounted for The captain is tried for making away with her. A variety of circumstances exist which would indicate preparation aud expectation on his part if the ship really was made
away
ship
lllustra-
is
cast
with, but
which would
justify
E
no suspicion at
all if
she
Existency of corpus delicti
wrongiT^ '"^^="6^.
—
A
50 Chap.
II.
was
;
Statement of the Principles of Induction.
not.
It
manifestly
is
illogical
regard
to
first
the
antecedent circumstances as suspicious, because the loss of the ship the
is
assumed
was
ship
be fraudulent, and next to
to
from the
destroyed
fraudulently
common occurrence, both proceedings and in common life.* The modes in which facts may be so combined fallacy
every hypothesis other than the one which establish
from
are very numerous,
specific illustrations
abstract
in
very
of
are,
I
as to excludfe
is
it
judicial
intended to
think, better learnt
and from actual practice than from
One
theories.
and
suspicious
This, however, is
character of the antecedent circumstances.
a
infer that
of
given in the next chapter
the objects
the illustrations
of
enable students to understand
is to
this matter.
Summary
The
result of the foregoing inquiries
may
summed up
be
as
of conclusions.
follows
:
In judicial inquiries the
I.
the
for
decision
persons
These
assert
facts the
own
with his
the
of
certain
facts
court
things
which form the materials
are
the
under certain
judge hears with his
own
certain
that
facts
circumstances.
He
ears.
also sees
documents and other things respecting
eyes
which he hears certain
infer—
II.
His task
(1)
From what he
is to
assertions.
himself hears and sees the existence of
the facts asserted to exist (2)
From
the facts which on the strength of such assertions
he believes to
exist other facts
which
are not so asserted
to exist.
Each
III.
Method each
vs.
for
cause,
inferences
and
each
of Difference; that
case
An
*
the
to
effect
of these
should
be
such
illustration of this
is
is
an
ought to
that
inference to
from the
conform
to
the
say,
the circumstances in
the
effect
is
inconsistent
form of error occurred in the case of E.
Steward and two others, who were convicted at Singapore in 1867 casting away the Schooner JBrm, and subsequently received a
free
pardon on the ground of their innocence.
"
1
Degrees of Probability. (subject
to
paragraphs)
than
the
the
limitations
contained
with the existence of which
cause
the
in
5
the
following
any other cause
of
existence
is
for
proposed to
it
be
proved.
The highest
IV. rally
be,
result of judicial investigation
for the reasons already
given, to
must gene-
show that
certain
conclusions are more or less probable.
V.
The
question
necessary to
show,
in a given case,
and
is
is
— what
in
degree
probability
of
order to warrant
is
it
a judicial decision
a question not of logic but of prudence
identical with the question, "
What
risk
of error
is
it
wise to run, regard being had to the consequences of error in either direction
?
VI. This degree of probability varies in different cases to an extent exists
which it
may
cannot
be
strictly
defined,
be called moral certainty.
but wherever
it
Chap.
ll.
The Theory of Relevancy, with
52
CHAPTEE
Illustrations.
III.
THE THEOET OF EELEVANCT, WITH ILLUSTEATIONS. Chap.
III.
means^"*^^ connection as cause
^
intelligence
of
atlc to conceive of
cause and effect
relation of
of
human minds
short
aU events
of this,
and
in
regard
lengths, but
to
effect,
which
efforts
fall infinitely
only to trace the connection
human
both in regard to
inanimate
see that
to
matter,
numerous
may
may
events
cause their
to
effect;
widest
when any true,
and
if
acceptation
theory has
ence of any
was
not be open to observation.
be traced in either direction, from
fact,
would be
It
whatever are or universal
all
may
alleged
fact
to
to
exist
taken
say
in
that
exist-
theory
either in
effect.
would extend the limits of
reasonable bounds, inasmuch as
all
events
be more or less remotely connected by the
chain of cause and
gravitation
were
relevant which, if that
all facts are
said that this theory
relevancy beyond
cause or from
been formed which alleges the
would stand to the
may be
which con-
The connection
correct
the relation of cause or in the relation of Objections.
connected
are
effect to
these two words it
conduct
very considerable
to
together, although the precise nature of the links
nect them
be
and though the most powerful
;
possible not
between cause and
perhaps
as standing to each other in the
are unequal to
it is
might
capacity
sufficient
would upon
this
effect,
principle
so
that the
theory
of
be relevant wherever
one of the facts in issue involved the falling of an object to the ground. Answer.
The answer which apply
to
this objection
is,
to all occurrences, are,
that wide, general causes,
in most cases, admitted,
and do not require proof; but no doubt to the matter
if
their application
in question were doubtful or were misunder-
Cause and stood, it
might be necessary
Effect.
53
For instance,
to investigate them.
Chap. hi.
suppose that, in an action for infringing a patent, the defence
up was that the patent was invalid, because the invention had been anticipated by some one who preceded the patentee. The issue might be whether an earlier machine was substanset
tially
the same
therefore,
as the
patentee's
the
facts,
which went to make up each machine would be
But each machine would be constructed with
facts ia issue.
the general formulae caUed laws of nature, and
reference to
thus the existence of an alleged law
become,
not
the
iaventor
first
AU
machine.
and had had
merely of
but
relevant,
a
fact
in
had taken
barometers
to defend its validity,
might well
of nature
issue.
out a
If,
patent,
the variation of atmos-
pheric pressure, according to the height of a column of air, and
the fact that air has weight, might have been facts in issue.
With
regard to
the remark that
events
all
together more or less remotely as cause and
...
observed that though this
is
may
or
are connected
effect, it is
be true,
it
to be
equally ^
is
./
.
true that the limit withia which the influence of causes
upon
A
knife
effects is
can be perceived
generally very narrow.
is
used to commit a murder, and
is
is
out.
It is
and
obvious that, unless each effect
could be
is
link in this
separately
°"
effects
narrow.
carefully washed, the
thrown away, and the notch in the blade
water
of causes
notched and stained
is
The knife
with blood ia the process.
cause
it
Traceable
proved,
it
ground
chain of
would be
impossible to trace the connection between the knife cleaned
and ground and the purpose the other hand,
if
the
first
that
fact,
which
had been
On
used.
fact
inc[uiring into the
further effects produced
such as the staining of the water in which
washed, the infinitesimal
effects
rule, therefore, that facts
it
by
was
produced on the river into
which the water was thrown, and so
The
it
that the knife was —the place — was proved, there would
step
bloody at a given time and
be no use in
for
forth.
may '
be regarded as relevant ° which can be shown to stand either in the relation of cause or in the relation of effect to the fact to which they are said to
^"1^ ^^ '? cause and effects true
—
The Theory af Relevancy ^ with
54 Chap.
III.
subject to caution
that every
connection
made^out
lllustra-
*'°°'
—
^^^
'
^jjgjj
be accepted as true, subject to the caution
may
be relevant,
Illustrations..
^^ inference
is to
be founded upon the existence of .
,
.
gucb a connection, every step by which the connection is made out must either be proved, or be so probable under the circumstances of the case that
it
be presumed without proof.
may
The circumFootmarks are found near the scene of a crime. stances are such that they may be presumed to be the foot-
made by the
marks
These
criminal.
precisely with a pair of shoes found
on the
marks
correspond
feet of the accused.
The presumption founded upon common experience, though its force may vary indefinitely, is that no two pairs of shoes It may further be would make precisely the same marks. presumed, though this presumption is by no means conclusive, that
shoes were worn
Here the steps are (1)
by
their
as follows
owner on a given
occasion.
:
The person who committed the crime probably made those marks by pressing the shoes which he wore on the ground.
(2)
The person who committed the crime probably wore his
(3)
(4)
own
shoes.
The shoes These
so pressed
shoes are
A
were probably these
B's shoes.
Therefore
A B probably made those
Therefore
A B
These effect
facts
thus
(1)
shoes.
marks with those
shoes.
probably committed the crime.
may
be exhibited in the relation of cause and
:
A's owning the
shoes was the cause of his wearing
them. (2)
His
wearing them at a given place and time caused
the marks. (3)
The
marks
were
caused
by
the
flight
of the
criminal. (4)
The
flight
of the criminal
was caused by the com-
mission of the crime. (5)
Therefore the marks were caused by the flight of the criminal, after committing the crime.
A
Obscurity of Definition.
Though it
this
mode
of describing relevancy might he correct,
would not be readily understood.
how is an
be asked,
55
alibi relevant
For instance,
under
might
it
this definition
The
?
answer
is,
time
a cause of his not having done a given act at that
is
obscurity definition
that a man's absence from a given place at a given
place and time.
be
Chap. hi.
and
obscui-e,
mode of using language would, however,
This
was
it
fully defined in
for this reason that relevancy
the Evidence Act
(ss.
6
—
was very
both iaclusive)
11,
These sections enumerate specifically the different instances of the connection between cause and effect frequently
iu
They
proceedings.
judicial
worded very widely, and in such a way
Thus a motive
other.
cause
(s.
part of
as
issue
effect
(s.
(s.
8) is part of its
by
it
on which
Act in
facts
this
and as popular forms its
relevancy
may
8) is
The
object
manner was that the general ground
relevant
are
(s.
11 would,
s.
in most cases, be relevant under other sections. of drawing the
each
overlap
to
Facts relevant under
7).
designedly
are
SubsecLuent conduct influenced
7).
its
for a fact in
which occur most
might
be stated in as
as possible, so that if a fact
many
is relevant,
be easily ascertained.
These sections are by
far
the most important, as they are
most original part of the Evidence Act, as they af&rm positively what facts may be proved, whereas the English law
the
assumes this to be known, and merely declares negatively that certain facts shall not be proved.
Important as these sections are for puposes of study, and in order to make the whole body of law to which they belong easily intelligible to students and practitioners not trained in English courts, they are not likely to give nice distinctions.
The reason
which was formerly a matter of
little
s.
57 of
is
that
II. of
s.
rise to litigation or to
167 of the Evidence Act
1855, renders
it
practically
importance whether evidence of a particular
fact is admitted or not.
The extreme
intricacy
of the law of England on this subject
is
and minuteness
principally due to
the fact that the improper admission or rejection of a single question
and answer would give a right
to
a
new
trial
in
Importtheir see-
*'™^'
—
56
The Theory of Relevancy^ with a
civil
case,
ground
and -would upon a crimiual
Crown Cases reserved. The improper admission
be
trial
sufficient
Court
conviction before the
the quashing of a
for
Illustrations.
for
has no
effect
or rejection of evidence in India
at all unless the court thinks that the evidence
improperly dealt with either turned or ought to have turned
A judge,
the scale.
moreover,
of a fact suggested,
can,
thing relevant, ask about
In order to exhibit
Illustra-
he doubts as to the relevancy
he thinks
if it
if
it
himself under
wHl lead
any-
to
165.
s.
fuUy the meaning of these
sections,
show how the Act was intended to be worked, and to furnish students with models by which they may be guided to
the
in
discharge
abstracts
lowing remarkable K.
2.
E.i;.Belany.
3.
E.
4.
E.«. Patch.
5.
E.
V.
most
trials
the
important of evidence
given at the
Palmer. fact
proved in each of these cases, the most in-
section of the Evidence
may
Act
it
would be
showing under relevant.
observe upon these cases that the general princi-
ples of evidence are, perhaps, for
fol-
:
tricate that I could discover, a note is attached,
I
duties,
Eiehardson.
To every what
their
Donellan.
1.
y.
the
appended of
are
V.
of
more
murder, than in any others.
cealed with as
much
clearly displayed in trials
Murders are usually con-
care as possible
;
and, on the other hand,
they must, from the nature of the case, leave traces behind
them which render effects
to
it
possible to apply the argument from
causes with greater force
other cases.
attention,
vestigated with special care.
which show so and
ground
fact,
these than in most
Moreover, as they involve capital punishment
and excite peculiar
fact
in
the evidence
is
generally in-
There are accordingly few cases
distinctly the
sort
of
connection
which makes the existence of one
for inferring the existence of another.
between
fact a
good
Case of R.
Donellan.
v.
57
I.
Case of E.
John Donellan,
Esq.,
was
v.
Donellan
tried at
*
Warwick Spring
Assizes,
1781, before Mr. Justice BuUer, for the murder of Sir Theodosius Broughton, his brother-in-law, a young tune, twenty years death,
had been in good health and
laxative
Mrs.
draught.'^
for
spirits,
with the excep-
which he occasionally took a
Donellan was
deceased, and, together with
of for-
who, up to the moment of his
of age,'
tion of a trifling ailment,
man
the
Lady Broughton,
sister
of
the
his mother, lived
with him at Lawford Hall, the family mansion.' In the event of Sir T. Broughton's death, unmarried and without
issue,
the greater part of his fortune would descend
Mrs. Donellan
to
;
^
but
was
it
stated,
though not proved, by
the prisoner in his defence that he on his marriage entered into articles for the immediate settling of her whole fortime
on herself and children, and deprived himself of the possibility
of
and that
enjoying even a this
life
estate in
settlement extended
case of her death,
not only to the fortune,
but to expectancies.*
For some time before the death of
Sir
Theodosius
the
prisoner had on several occasions falsely represented his health
*
"Wills,
on " Circumstantial Evidence," pp.
192-6.
Introductory fact (section
'
State of things under which facts in issue happen (section
^
Motive (section
*
Fact rebutting an inference suggested by a relevant fact (section
9).
'
These
7).
8).
facts are omitted
account of the case.
9).
by Mr.
Wills, but are
Gen. View, Grim. Law.,
mentioned in
p. 338.
my
Case of R.
58
Donellan.
v.
On
to
te very bad, and his
of
August the apothecary in attendance sent him a nuld and
harmless draught
life to
be precarious.^
the 29th
In the
be taken the next morning.^
to
evening the deceased was out fishing/ and the prisoner told
mother that he had been out with him, and that he had
his
imprudently got his feet wet, both of which assertions were
When
false.^
Sir
Theodosius was
morning he was in good mother went
to his
and about seven o'clock his
health,*
chamber
on the following
called
him
to give
his draught,'" of
he immediately complained," and she remarked that like
bitter
very
much
Broughton
keep the
"to
observed
a
found
she
clenched, and
down, and
medicine
gurgling
in
his
minutes he seemed inclined to doze afterwards
it
smelt
In about two minutes he struggled
almonds.'^ as if
which
him with
;
stomach
" but in
his
eyes
;'*
five
fixed,
Lady ten
in
minutes
his
teeth
running out of his mouth, and within
froth
half an hour after taking the dose he died."
Lady Broughton ran down-stairs to go for the apothecary,
and in
less
than
who
to give orders to a servant
lived about three miles distant,'^
minutes after Sir Theodosius had been
five
taken Donellan asked where the physic bottle was, and Lady
^
Facts showing preparation for facts in issue (section
The
8).
Btatementa are also admissions as against the prisoner (section 17). ^
A
'
Introductory to what follows (section
^
Preparation (section
°
State of things under which fact in issue happened (section
fact affording
an opportunity
8).
for facts in issue (section 7).
Admission
9).
(section 17). 7).
was suggested that Donellan changed the apothecary's draught for a poisoned one administered by Lady Broughton, an innocent Therefore the administration of the draught suggested to be agent. '°
It
poisoned was a fact in issue, (section
5).
"
As to this, see section 14. "J. e.,of prussic acid. Lady Broughton presence of the poison.
" Effects of facts in issue (section
up the
perceived by smell the
Therefore she smelt a fact in issue (section
fact of his death,
which was a
7).
All these facts go to
fact in issue.
" Introductory to next fact as fixing the time (section
9).
5).
make
Case of R. v. Donellafi. Broughton showed him the two took up one of them and
bottles.
said, " Is this it 1"
59
The prisoner then and being answered
" Yes,"
he poured some water out of the water bottle which was near into the phial, shook it, and then emptied it into
some dirty water which was in a wash-hand basin. Lady " Broughton said, You should not meddle with the bottle,"
upon which the prisoner snatched up the other bottle and poured water into that also, and shook it, and then put his finger into
it
and tasted
what he was about, and the bottles
it.
Lady Broughton again asked
said
he ought not to meddle with
on which he replied that he did
;
though'* he had not tasted the
first
away the
ordered a servant to take
it
to taste
it,'*
The prisoner the dirty things, and
bottle.'*
basin,
the bottles, and put the bottles into her hands for that pur-
pose
;
she put them
Broughton to do
down
so,
again on being directed by Lady
but subsequently removed them on the
peremptory order of the prisoner."
On
the arrival of the
apothecary the prisoner said the deceased had been out the preceding evening fishing, and had taken cold, but he said
nothing of the draught which he had taken.'^
The prisoner
had a
for
in
still
roses;'"
his
own room which he used
and a few days
brought cleaned.'"
full
it
of
after the
wet lime
to
The prisoner made
distilling
death of Sir Theodosius he
one of
the servants to be
several false
and inconsistent
statements to the servants as the cause of the young man's death;'"
and on the day of
death he wrote to Sir W.
his
Wheeler, his guardian, to inform him of the event, but made
no reference "
to its
suddenness.™
Subsequent conduct influenced by a
explanatory of conduct (section '*
The cof&n was soldered up
This word
is
fact in issue
and statements
8).
Mr. Wills's comment.
"
Subsequent conduct and explanatory statements (section 8). " Opportunity to distil laurel water, the poison said to have been
nsed (section
7).
'"
Subsequent conduct (section
'»
Admissions,
17, 18.
8).
6o
Case of R. on the fourth day
W.
Sir
after
v.
Donellan.
Two
the death."
days afterwards
Wheeler, in consequence of the rumours which had
reached him of the manner of Sir Theodosius's death, and that suspicions were entertained that he had died from the effects of poison,^^ wrote a letter to the prisoner requesting that an
examination might take place, and mentioning the gentlemen
by whom he wished
it
to
be
conducted.*'
W.
Wheeler's
suspicion that the deceased
had been
accordingly sent for them, but did not exhibit Sir letter
alluding to the
poisoned, nor did he mention to for
at
his
The prisoner
them
that they were sent
Having been induced by the prisoner
request.
to suppose the case to be one of ordinary death,-*
and finding
the body in an advanced state of putrefaction, the medical
gentlemen declined to make the examination on the ground that
it
might be attended with personal danger.
lowing day a medical
man who had
examine the body offered to do
to
his offer for
On
him.'^
^'^
fully
but the prisoner declined to
send
W. men
the same day the prisoner wrote to Sir
letter
in
satisfied
which he stated that the medical
the family, and
endeavoured to
Introductory to what follows (section
^ Introductory
the fol-
heard of their refusal
on the ground that he had not been directed
Wheeler a
had
so,
On
to,
and explanatory
of,
account
9).
wliat follows (section
9).
It
should be observed that proof of the rumours and suspicions for the
purpose of showing the truth of the matters rumoured and suspected
would not be admissible. picions explains Sir "'
W.
The
fact that there
Wheeler's
were rumours and sus-
letter.
Statement to the prisoner and affecting his conduct (section
8,
ex. 2). *"
Subsequent conduct of prisoner (section
8)
and Mr. Wills's com-
ment on the conduct. ^^
Subsequent conduct (section
8).
The
fact that the first set of
doctors refused explains the prisoner's conduct by showing that
it
had the effect of preventing examinations (section 7). The ground on which they refused tends to rebut this inference (section 9), but the second doctor's offer, and the prisoner's conduct thereon, tend to confirm
it
(section 9).
—
Case of R.
6i
Donellan.
v.
the event by the aflment under which the deceased had
for
been suffering
;
but he did not state that they had not made
the examination.^*
Three or four days
after. Sir
W. Wheeler
having been informed that the body had not been examined,*'^ wrote to the prisoner insisting that it should be done,''^ which, however, he prevented by various disingenuous contrivances,"'
and the body was interred without examination.'"
In the
meantime, the circumstances having become known to the
he caused the body to be disinterred and examined
coroner,
on the eleventh day to
be
after
Putrefaction was found
death.
advanced, and the head was not opened, nor the
far
bowels examined, and in other respects the examination was incomplete.''
When Lady
Broughton,
giving
in
evidence
before the coroner's inquest, related the circumstance of the
prisoner
having riased the
he was observed to take
bottles,
hold of her sleeve and endeavour to check her, and he
after-
wards told her that she had no occasion to have mentioned that circumstance, but only to answer such questions as were
put to her
;
and in a
letter to the qproner
and jury he endea-
voured to impress them with the belief that the deceased had inadvertently poisoned himself with arsenic, which he had
purchased to
kill fish.''
Upon
the
trial four
—were
three physicians and an apothecary
medical
men
examined on the
part of the prosecution, and expressed a very decided opinion,
mainly grounded upon the symptoms, the suddenness of the death, the jpost-mortem appearances, the smell of the draught ''^
"''
Sjibsequent conduct (section 11) and admission (section 17).
Introductory (section
9).
^ Statement to the prisoner affecting his conduct (section 8, ex. 2.) ^' Each contrivance and each circumstance which showed that it was disingenuous would come under the head of subsequent conduct (section 8). 30
The burial was part
examination
whole '^ ^^
is
is
The absence of explanatory of parts of the medical evidence. The of the transaction (section
6.)
introductory to medical evidence (section
Introductory to opinions of experts (sections
Subsequent conduct (section
8)
9).
9, 45, 46).
and admissiona
(section 17).
^2
Case of R.
v.
Donellan.
by Lady Brongbton, and the
as observed
similar effects pro-
duced by experiments upon animals, that the deceased had been poisoned with laurel water
;'*
one of them stating that on
opening the body he had been affected with a biting acrimonious
tastCj like
experiments with laurel water.^^ anatomist
him
that which affected
stated
An
aU the subsequent eminent'* surgeon and in
a positive opinion that the
symptoms did
hot necessarily lead to the conclusion that the deceased had
been poisoned, and that the appearances presented upon section
explained nothing but putrefaction.''^
The
dis-
prisoner
was convicted and executed. ^^
Opinion of experts (section
^*
This
present in ^2
is
45).
a case of tasting a fact in issue,
tlie
body.
See definition of
This was the famous John Hunter.
'
fact,'
int.,
section
the laurel water 3.
Case of R.
v. Belaney,
63
II.
Case of E.
A
surgeon
Belaney*
v.
named Belaney was
tried at the Central Criminal
Court, August, 1844, before Mr. Baron Gurney, for the murder of his wife. land,
They left
their place of residence, at
North Sunder-
on a journey of pleasure to London on the
1st of
June
made mutual wills in each other's favour),' where on the 4th of that month they went The deceased, who was advanced in pregnancy, into lodgings." a few
(having
was
days
previously
slightly indisposed after the journey;
but not sufficiently
On
so to prevent her going about with her husband.^
Saturday morning
beino- the
prisoner rang the bell
spoon
;
*
and he and
for
after^
arrival
in
town, the
some hot water, a tumbler, and a
his wife were
chamber about seven
the
the 8th,
o'clock.
heard conversing in their
About a quarter before
eight
the prisoner called the landlady up stairs, saying that his wife was very ill ; and she found her lying motionless on the bed,
with her eyes shut and her teeth closed, and foaming at the On being asked if she was subject to fits, the primouth. soner said she had had
she would for
fits
before,
not come out of
it.
but none like
this,
and that
On. beiag pressed to
send
a doctor, the prisoner said he was a doctor himself, and
should have
let
blood before, but there was no pulse.
beino- further pressed to
On
send for a doctor and his friends he
* Wills, on "Circumstantial Evidence," pp. 176-178. '
Motive (section
^
Introductory (section 9).
'
State of things under which fact in issue happened (section
•
Preparation (section
8).
8).
7).
Case of R.
"^4
assented, adding that she
two of the
fetch
would not come
to
;
The servant was accordingly
ago.
and applied a mustard plaster
to
was sent
arrival the
but before his
sent to
and on her return she and
prisoner's friends,
warm
the prisoner put the patient's feet and hands in
for,
was an
thSit this
and that her mother died in the same
affection of the heart,
way nine months
v. Belaney.
A
her chest.
water,
medical
had
patient
man
died.^
There was a tumbler close to the head of the bed, about onethird fuU of something clear, but whiter than water
was
also
paper
a
an empty tumbler on the other side of the
Epsom
of
In
salts.^
reply to
and there
;
table,
and
question from a
a
medical man' whether the deceased had taken any medicine that morning, the prisoner stated that she had taken nothing
but a
little
a grave
salts.''
for
On
the same morning the prisoner ordered
interment
on the following Monday.^
In the
meantime the contents of the stomach were examined, and found to contain prussic acid and Epsom
It
salts.
was de-
posed that the symptoms were similar to those of death by prussic acid, but might be the result of poison,
and that the means resorted
likely to promote recovery respiration,
in the
to
any powerful sedative
by the prisoner were not
but that cold affusion,
;
and the application of brandy
shape of smelling
salts
is
probably have been
effectual.
No
odour '
of
is
window was
remedies,
open, and
it it
°
soon dissipated by a current of
and admissions
'
air.^
The
facts in issue facts are
prisoner
and part
conduct
(sec-
or cause or effect of administration of
7).
Admissions (sections
17, 18).
°
Conduct (section
"
Effect of poisoning (section
46).
a very strong
(sections 17, 18).
State of things at death,
poison (section
has
was stated that the
The death and attendant circumstances are the transaction (sections 5, 26). The other
tion 8)
and might
smell of prussic acid had
been discovered in the room, though odour, but the
ammonia (which every house) and
or
found in
other stimulants were the appropriate
artificial
The absence
8). 7),
opinions of experts (sections 45-
of the smell of prussic acid
and the presence of the
Case of R. had purchased prussic
acid, as
v.
Belaney.
also
acetate
65 of
morphine, on
the preceding day, from a vender of medicines with whom he was intimate but he had been in the habit of using these ;
poisons under advice for a complaint in the stomach.'"
days after the
fatal
Two
event the prisoner stated to the medical
man, who had been called in and who had assisted in the examination of the body, that on the morning in question he
was about
some prussic acid that on endeavouring to remove the stopper he had some difficulty, and used some to take
;
force with the handle of a tooth-brush
breaking the neck of the bottle by the
was
spilt
that he placed the
;
that in consequence of force,
some of the acid
remainder in
the tumbler on the drawers at the end of the bed room, that he went into the front room to fetch a bottle wherein to place the acid, but instead of so doing began to vsrite to his Ijriends in the country, wife's
;
when
in a few minutes he heard a scream from his
bed room, calling
for
cold water, and that the prussic
acid was undoubtedly the cause of her death.
asked what he had done with the
Upon
being
bottle, the prisoner said
he and on being asked why he had not mentioned the circumstance before, he said he had not done so because he was so distressed and ashamed at the consequences of his
had destroyed
it
;
To various persons in the north of England the prisoner wrote false and suspicious accounts of his wife's illness. In one of them, dated from the Euston Hotel on the negligence.
6th of June, he stated that his wife was unwell, and that two medical men attended her, and that in consequence he should give
up an intended
visit
to
Holland,
and
intimated
his
apprehension of a miscarriage.
was no foundation.
Eor these statements there At that time moreover he had removed
from the Euston Hotel into lodgings, and on the same day he had made arrangements for leaving his wife in London, and draft are respectively a fact suggesting the absence of prussic acid,
and a '°
fact rebutting that inference (section 9).
Preparation (section
of poison (section
9).
8)
and
fact rebutting inference
from purchase
66
Case of R.
Belaney.
v.
In another
proceeding himself on his visit to Holland.
death, though
dated 8th of June, and posted after his wife's
was written before or that he had had his wife removed
could not be determined whether
it
the prisoner stated
after,
letter,
it
from the hotel to private lodgings, where she was dangerously
whom
and attended by two medical men, one of
ill
nounced her heart to be diseased equally
false.
In another
letter^
these Tepresentations were
;
dated the 9th of June, but
not posted until the 10th, he stated the fact death, but without any allusion to the
sequent letter he
be
conceal
to
The
prisoner's
the reason
stated
the
shame
statement
and to
cause for
reproach
;
of his wife's
and in a sub-
the suppression to
landlady that
his
hood, the prisoner having himself stated registrar of burials that brain fever
for so horrible a
was urged that of her
it
careless
was the
of death."
was of a kind dispo-
in
his
testamentary disposition."
suggested;
habits out,
;'^
and no
though
desire of obtaining her property
last
certainly possible that an accident
way
also a false-
in writing to the
deed was clearly made
though the case was to the
the
wife's
he and his wife had lived upon affectionate terms
and that he was extremely
means
his
was the cause
It was, however, proved that the prisoner
motive
negligence.
of his
mother had died from disease of the heart was
sition, that
had pro-
degree
Upon
it
by
the whole,
suspicious,
it
was
might have taken place in
and the jury brought in a verdict
of
acquittal.
Remarks
The two
on cases of
m .
DoneUan and Belaney are not merely ' themselves, but throw light upon one of the most cases
of
DoneUan
curious
Belaney.
important of the points connected with judicial evidence, the point namely as to the amount of uncertainty which constitutes
what can be
already said
is
called reasonable
doubt.
This I have
a question, not of calculation, but of prudence.
" All these are admissions (sections 17, 18),
" Character (section " Motive (section
8).
53).
and conduct
(section 3).
Case of R. The at
cases
in
show
question
times
different
do
Belaney.
v.
that
measure
not
f]
different
in
it
tribunals
precisely
the
same way.
In Donellan's case the jury did not think the possibility that Sir Theodosius Broughton might have died of a
fit
sufficiently great to constitute reasonable
having been poisoned.
doubt as to his
In Belaney's case the jury thought
that the possibiKty that the prisoner gave his wife the poison
by accident did
constitute a reasonable doubt as to his guilt.
and innocence of the two men could
If the chances of the guilt
be numerically expressed, they would I think be as nearly as possible equal,
and
might be said that both or that neither
it
ought to have been convicted
if it
ant principle that every case
is
and that no decision upon other decision.
two
If
were not
independent forms
facts
juries
for the all-import-
of every
a precedent
other,
for
any
were to try the very same
upon the same evidence and with the same summiug up and the same arguments by counsel, theymight very procase,
bably arrive
at opposite conclusions,
and yet
it
might be im-
them was wrong. Of the moral qualifications for the office of a judge few are more important than the strength of mind which is capable of admitting possible to say that either of
the unpleasant truth probabilities,
and
that
it
some
to run
is
often
risk
necessary to act upon
of error.
The cruelty of
the old criminal law of Europe, and of England as well as of
many bad effects, one of which was those who had to put it in force. The
other countries produced that
it
intimidated
saying that
it is
bettter
that one innocent
man
sentiment, which has
done much
I
that ten criminals should escape than
should be
convicted
expresses
think been carried too
far,
to enervate the administration of justice.
this
and has
Case of R.
58
Richardson.
v.
III.
Case of E.
v.
Eichaedson*
In the autumn of 1786 a young woman, wlio lived with her parents in a remote district in the stewartry of Kirkcudbright/ was one
day
left
alone
in
having gone out to the harvest-field.^ a
little after
cottage,^ her parents
the
On
their return
mid-day,' they found, their daughter
with her throat cut
^
The circumstances
in a
home
murdered,*
most shocking manner.
in which she
was found, the character of the deceased, and the appearance of the wound, aU concurred in excluding
all
who examined
supposition of suicide
the
wound were
;
^
satisfied
while the that
it
surgeons
had been
in-
by a sharp instrument, and by a person who must have held the weapon in his left hand.'' Upon opening the body the deceased appeared to have been some months gone with child ^ flicted
;
*
Wills, pp. 225-229.
is
also con-
Memoirs of the Life of Sir Walter Scott, IV., supplied one of the most striking incidents in Guy
cisely
stated in the
p. 52,
and
it
Mr. Wills observes, " This case
Mannering." Introductory (section
9).
"
Opportunity (section
7).
^
Explanatory (section
9).
They found her with the throat eut, and Mr. Wills says she was murdered but her murder was to them an *
Mr. Wills's comment.
;
inference, not a fact (section 3). '
Fact in issue (section
®
Suicide would be a relevant fact as being inconsistent with murder.
The
facts
5).
which exclude suicide are relevant as inconsistent with a
relevant fact (section 11). '
Opinions of experts (section 45).
*
State of things under which death happened (section
section
8).
7).
Motive
Case of R.
Richardson.
v.
69
and on examining the ground about the cottage there were
who had seemingly been
discovered the footsteps of a person
running hastily from the cottage by an indirect road through a c[uagmire or bog, in which there were stepping-stones.^
It
appeared, however, that the person in his haste and confusion
had slipped
his foot
and stepped into the mire, by which he
must have been wet nearly
prints of the footsteps were accurately measured,
impression taken of them," and those of a person
The
to the middle of the leg.'"
it
and an exact
appeared that they were
who must have worn
the
shoes,
which had been newly mended, and which,
soles
usual in that
as is
part of the country, had iron knobs or nails in them."
were discovered
also along the track
certain intervals drops of blood,
way
of the
and on a
near the cottage, and in the line
footsteps,
stile or
of the
of
These
and at
small gate-
footsteps
some
marks resembling those of a hand which had been bloody." ISTot the slightest suspicion at this time attached to any particular person as the murderer, nor
was
it
even suspected
might be the father of the child of which the nant.'^
tended,'^
At
girl
who
was preg-
the funeral a number of persons of both sexes at-
and the steward-depute thought
tunity of endeavouring,
if
possible, to
it
the
fittest
oppor-
discover the murderer
conceiving rightly that, to avoid suspicion, whoever he was
he would not on that occasion be absent." he called together,
who were
" '»
after the interment, the
present, being about sixty in
Effects of fact in issue (section
This
is so
stated as to
With
this
whole of the
number."
He
view
men
caused
7).
mix up inference and
fact.
Stripped of
might have been stated thus,—' There were such marks in the bog as would have been produced if a person crossing such the stepping-stones had slipped with one foot. The mud was of inference, the fact
middle of a depth that a person so slipping would get wet to the the
leg.'
1'
Effects of fact in issue (section
^"^
Observation.
" Introductory
(section 9).
7).
Case of R.
70
the shoes of each of
one of the
them
shoes was
Richardson.
v.
to be takeu
found
to
and measured, and
off
resemble pretty nearly the
The wearer which led to
impression of the footsteps near to the cottage. of the shoe
was the schoolmaster
of the parish,
a suspicion that he must have been the father of the child, and
had been guilty of the murder closer
examination of the shoe,
On
to save his character.
it
was discovered that
it
a
was
pointed at the toe, whereas the impression of the footstep was
round
and
at that place."
after
The measurement
going through
nearly the
of the rest
went
whole number,
one
length was discovered which corresponded
exactly with
impression in dimensions, shape of the
form of the
and the number and position of the son, the
young man
to
whom
foot,
nails.'^
on, at
the sole,
William Eichard-
the shoe belonged, on being
asked where he was the day deceased was murdered, replied, seemingly without embarrassment, that he had been
day employed master and
at his master's work,'^
fellow-servants
all
that
— a statement which
who were
present
his
confirmed."''
This going so far to remove suspicion, a warrant of commit-
ment was not then
granted, but
some circumstances occurring
a few days afterwards having a tendency to excite
young
man was apprehended and
'*
Irrelevaiit.
'^
The making
of the footmark
was an
lodged in
effect of,
quent to and affected by, a fact in issue (section
7).
it
anew, the
jail.'^
Upon
or conduct subse-
The measurement
of the siKty. shoes, of which one only corresponded exactly with the
mark, was a
making highly probable shoe made that mark (section 11). The experiment itself is an application of the method of difference. This shoe would make the mark, and no other of a very large number fact,
or rather a set of facts,
the relevant fact that that
would. " This would be relevant against him, but not in his favour as an admission (sections 17, 18).
The fact that his master and fellow-servants confirmed his ment is irrelevant. If they had testified afterwards to the fact '^
it
would have been relevant. '"
Irrelevant.
stateitself,
Case of R. his examination '^he
v.
Richardson.
acknowledged that he was left-handed
;2<'
and some scratches being observed on his cheek, he said he had got them when pulling nuts in a wood a few days before.^'
He
adhered to what he had said of his having been on
still
the day of the
murder employed constantly in
his
master's
work f but in the course of the inc[uiry it turned out that he had been absent from his work about half an hour, the time *
being distinctly ascertained, in the course of the forenoon of that day
;
that he called at a smith's shop under the pretence
of wanting something which
any occasion
for
;
and that
it
when
the murder was
to the time
not appear that he had
this smith's
to the cottage of the deceased.''^
hundred yards from the
did
A
shop was in the
young
cottage, said
girl
that,
way
who was some
about the
time
committed (and which corresponded
when Eichardson was
absent from his fellow-ser-
she saw a person exactly with his dress and appear-
vants),
ance running hastily towards the cottage, but did not see him return,
though he might have gone round by a small eminence
which would intercept him from her view, and which was the very track where the footsteps had been traced."* "
By
Scotch law, as well as by the Code of Criminal Procedure, a
prisoner *"
The
may fact
be examined. that he was left-handed would be a cause of a fact in
issue, viz., the peculiar
way
in which the fatal
wound was
given.
The
admission that he was left-handed would be relevant as proof of the fact
by
sections 17, 18.
was suggested that the scratches were made in a struggle with the girl, they would be effects of a fact in issue (section 7), and the statement would be relevant as against the prisoner as an admis"'
If it
sion (section 17, 18). ^^
Opportunity (section
7).
Admissions (sections
17, 18).
the shop was preparation by making evidence (section '^
There
know
is
that a
mitted.
here a miKture of fact and inference
murder was committed
;
at the time
Probably she mentioned the time, and
it
8,
The
call at
illustration
e).
the girl could not
when
it
was com-
corresponded -with
This would be preparation and the time when Eichardson was away. opportunity (section 7). The existence of the small eminence explains
her not seeing him return (section
9).
Case of R.
rff
v.
Richardson.
His fellow-servants now recollected that on the forenoon that day they were employed with Eichardson in driving
their master's carts,
and
that,
when passing by a wood which
they named, he said that he must run to the smith's shop,
and would be back
He
a short time.
in
then
left
his cart
under their charge, and, having waited for him about half an
which one of the servants ascertained by having at the
hour,
time looked at his watch, they remarked on his return that
he had been absent a longer time than he said he would be, to
They observed
gather some nuts. his stockings
He
wood
to
same time one
of
which he replied that he had stopped in
said he
wet and soiled as
he had stepped in a puddle.
had stepped into a marsh, the name
mentioned, on which his
must have been
either
of
which he
fellow-servants remarked " that he
mad
or
drunk
if
he stepped into that
a footpath which went along the side of
marsh, as there was
then appeared by comparing the time he was absent
It
it."
if
at the
the
with the distance of the cottage from the place where he had left his fellow- servants
that he might have gone there,
mitted the murder, and
returned
A
them.^*
to
com-
search was
then made for the stockings he had worn that day.'^
They
were found concealed in the thatch of the apartment where he be
much
drops of blood on them.^^
The
and appeared
slept,
saying,
first,
before
but
;
that day,
that
it
to
his
nose
soiled, first
and
to
have some
he accounted
for
had been bleeding some
days
being observed that he wore other stockings on
he said he had assisted in bleeding a horse
was proved that he had not
assisted,
and had stood
;
but
On
All these facts are either opportunity or preparation or subse-
quent or previous conduct or admissions (section ''^
Introductory to next fact (section
7, 8, 17).
91).
subsequent conduct (section
8).
of the stockings is the effect of a fact in issue (section
7).
26
^'
it
at such a
distance that the blood cordd not have reached him.^''
^
by
The concealment The
is
falsehoods are subsequent conduct (section
(sections 17
&
18).
The
8),
The
state
or admissions,
prisoner's allegation about the horse
is
an
Case of R. Y examining the correspond
to
adjoining
the
mud
or sand
upon the
precisely with cottage,
Richardson.
that
73
stockings,
of the
and which was
of
appeared
it
mire
or
puddle
a very particular
kind, none other of the
same kind heing found in that neighThe shoemaker was then discovered who had
bourhood.^^
mended
his shoes a short time before,
to the shoes of the
and he spoke
distinctly
prisoner which were exhibited to
having been those he had mended.^'
It then
him
as
came out that
Eichardson had been acquainted with the deceased,
who was
considered in the country as of
one occasion
weak intellects, and had on been seen with her in a wood in circumstances
that led to a suspicion that he had criminal intercourse with her, and,
on being taunted with having such connection with
one in her situation, he seemed
much ashamed and greatly hurt.^° It was proved further by the person who sat next him when his shoes were measuring, that he trembled much and seemed a good deal agitated, and that, in the interval between that time and his being apprehended, he had been advised to
On
the
fly,
but his answer was,
other
hand,
"Where can
evidence was
I fly to ?"
^'
brought to show that
allegation of a fact explaining the relevant fact, that there
was blood
on the stockings (section 9) and the facb proved about his distance from the horse is a fact rebutting the inference suggested thereby ;
that the blood was the horse's (section
^
Effect of a fact in issue (section
slip,
which was the
effect of the
9).
The similarity of the sand marsh was one of the effects of
7).
on the stockings to the sand in the the
murder.
That the marks were made by the prisoner's shoe was relevant That the shoes which made the marks as an effect of facts in issue. were the prisoner's had been already proved by their being found on This further proof seems superflaous, unless it was sughis feet. gested that they belonged to some one else. ^° The opinion about her would be irrelevant. The fact that her intellect was weak would be part of the state of things under which the murder happened, and with what foUows would show motive ^^
(sections ^^
7, 8).
Subsequent conduct (section
slight.
i
10).
The weight of
this is
very
-
.>Vi'«.>^m.
—
—
C(3:^^
74
of R.
Richardson.
V,
about the time of the murder a boat's crew from Ireland had landed on that part of the coast near to the dwelling of the deceased
and
j'^^
was
it
said
that
some of the crew might
have committed the murder, though their motives for doing so
it
was
was
difficult to explain, it
their purpose,
not being alleged that robbery-
anything was missing from the
or that
The prisoner was convicted,
cottages in the neighbourhood. confessed,
Remarks ardson's' case.
"S.
.^*
THs
and was hanged.
case iUustrates the application of
*^^ method of agreement
upon a
supposition of chance, thus
The
(1)
had
murderer
what Mr. Mill
scale
calls
which excludes the
:
a
motive,
—Eichardson
had
a
1/8
motive.
The murderer had an opportunity
(2)
of a
day
certaiu
in
a
certain
at
a certain hour
—Eichardson
place,
had
an
opportunity on that hour of that day at that place. (3)
The murderer was
left-handed,
—Eichardson was
left-
handed.
The murderer wore shoes which made Eichardson wore shoes which made exactly (4)
(5)
If Eichardson
certain marks,
similar marks.
was the murderer and wore
stockings,
they must have been soiled with a peculiar kind of sand,
he did wear stockings which were
soiled with that
kiud of
sand. (6)
If Eichardson
conceal his (7)
was the murderer, he would naturally
stockings,
—he did conceal
his
stockings.
The murderer would probably get blood on
—Eichardson got blood on Eichardson was the murderer, —he did about the
his clothes,
his clothes.
(8)
If
blood,
tell lies
(9)
at the
If Eichardson
tell lies
he would probably about the blood.
was the murderer, he must have been
place at the time in question,
—a
man
very like him
was seen running towards the place at the time. (10) If Eichardson was the murderer, he would probably
^^
Opportunity
for the
mm-der
(section
7).
Case of R. v. Richardson. tell
liqp
about
Ms
proceedings
murder was committed,
during the
—he told such
Here are ten separate marks,
five
75 time
when
the
lies.
of which
must have
been found in the murderer, one of which must have been found on the murderer
if
he wore stockings, whilst
others
probably would be found in him. All ten were found in Eichardson. distinctive that they could hardly
man.
It
is
Four of them were so
have met in more than one
hardly imaginable that
two left-handed men,
wearing precisely similar shoes and closely resembling each other, should
have put the same leg into the same hole of
the same marsh at the same time, that one
of
them should
have committed a miirder, and that the other should have causelessly hidden the stockings
marsh.
Yet
this
would be
which had got soUed in the
the
only possible supposition
consistent with Eichardson's innocence.
Case of R.
76
Patch.
v.
IV.
Case of E.
A man
named
v.
Patch.*
had been received by Mr. Isaac Blight
Patcli
a ship-breaker, near Greenland Dock, into his service in the year 1803.'
Mr. Bright having become embarrassed in his
circumstances sition
with his creditors
of this arrangement,
perty to
them ness,
1805, entered into a deed of compo-
in July,
the
;
and in consequence
he made a colourable transfer of his pro-
was afterwards agreed between
It
prisoner.'
was
that Mr. Blight
to
which the prisoner was
to have
maining
two-thirds of the third,
for
of the failure
retire
to
nominally from the busi-
manage, and the former was
profits,
which he was
and the prisoner the to
pay £1,250.
Of
rethis
amount, £250 was paid in cash, and a draft was given for the remainder upon a person named Goom, which would become payable on the 16th of September, the prisoner representing that he to
it
had received the purchase-money
Goom.^
On
the 16th
of
September the prisoner repre-
sented to Mr. Blight's bankers that
the
bill,
Goom
to
and withdrew fall
it,
Goom
substituting
visit
and the prisoner accompanied him
his
On
his wife
as far
* Wills's Oiroumstantial Evidence. Introductory (section
Motive (section
own
draft
upon
the 19th of at
Margate,
as Deptford,* and
and represented to his bankers that
then went to London
•^
could not take up
due on the 20th September.^
September the deceased went to
'
an estate and lent
of
9).
8).
'
Preparation (section
'
Introductory (section 9) but unimportant.
8).
Case of R.
Goom would
v.
Patch.
not be able to face bis
jj
draft,
but tbat be bad
obtained from bim a note wbicb satisfied bim, and tberefore
tbey were not to present
prisoner boarded
in Mr.
and tbe only otber inmate was a female servant,
Bligbt's bouse,
wbom
Tbe
it.^
the prisoner, about eigbt o'clock tbe same evening (tbe
some oysters
19tb), sent out to procure
Dujing
for bis supper."
her absence a gun or pistol ball was fired through tbe shutter
when
of a parlour fronting tbe Thames, where the family,
home, usually spent their evenings.
mud was
the
so deep that
was low water, and
any person attempting
must have been
that direction
It
at
to escape in
and a man who was
suffocated,
standing near the gate of the wharf, which was the only other
mode
of escape, heard tbe report, but
saw no
From
person.'^
tbe manner in which tbe ball entered tbe shutter
it
was
clear
had been discharged by some person who was close to the shutter, and tbe river was so much below the level of tbe house, tbat tbe baU, if it bad been fired from thence, must have reached a much higher part than that which it struck.
that
it
The
prisoner declined the offer of the neighbours to
in the house with
bim
On
that night.^
remain
the following day he
wrote to inform the deceased of tbe transaction, stating bis
hope that tbe shot bad been accidental person
' '
who bad any
Preparation (section
tion
8).
own
in his
Hence
his
firing
favour.
9).
so, as
opportunity, and that
The
it
Preparation (section
of
no
8).
fired the shot himself in order to
This would be preparation
the shot would be a relevant
facts in the text are facts which,
bable that he did
knew
8).
The suggestion was that Patch
make evidence
tbat be
animosity against bim, that he wished
Explains what follows (section
'
;
taken together, make
it
fact.
(sec-
The
highly pro-
they show that he and no one else had the
was done by some one
last fact illustrates the
(section 11).
remarks made at pages
40, 41.
The infer-
ence from the facts stated, assuming them to be true, is necessary ; but, suppose that the " man standing near the gate " saw some one running,
and
for reasons of his
dicted? '
Conduct (section
8).
own denied
it,
how
could he be contra-
78
Case of R.
know
to
happy
for
whom
to hear
viously been to
was intended, and that he should be
it
home on London
subject of conversation,
Upon
his
getting home, the draft
became the
and the deceased desired the prisoner without the money."
return
and the deceased spent the
the prisoner
return,
on the subject of
his bankers
London, and not to
to
Mr.
September, having pre-
23rd
the
to see
Upon
the ^1,000 draft/"
go
Patch.
from him, but much more so to see him.^
Blight returned
to
v.
evening in the back parlour, a different one from that in which
About
the family usually sat.'^
eight o'clock theprisoner
went
from the parlour into the kitchen, and asked the servant for a candle'-^ complaining
way from
soner's
that
kitchen
the
which fastened by a spring
up
ships,
of soil peculiar
as
door
the
notwithstanding
the
of the state
The
pri-
outer door
and across a paved court
and
on which
premises for breaking
to
parlour,
of
palisades,
court,
and then through a counting-house.
doors, as well
open,
lock,
through an
wharf in front of that
throLigh a gate over a
there was the kind
was
which was enclosed by
of the house
in front
he was disordered.'*
All of these
the prisoner left
alarm
excited
by the
The servant heard the privy door slam, and almost at the same moment saw the ilash of a pistol at the door of the parlour where the deceased was sitting, upon which she ran and shut the outer door and gate. The priformer
shot.
soner immediately afterwards rapped loudly at the door for
admittance with his clothes in disorder. apparent concern for Mr. Blight,
and died on the following day. from the testimony of various '
Preparation (section
He
evinced great
who was mortally wounded, From the state of tide, and persons who were on the
8).
'°
Hardly relevant, except as introductory
"
Motive section
'"
State of things under which facts in issue happened (section
to
what follows
(section
9).
8).
" Preparation (section
8).
"
8).
Preparation (section
7.)
Case of R. outside of the premises, no
Patch.
V.
79
person could have escaped from
them.'*
In consequence of this event Mrs. Blight returned home,'^
and the prisoner in
answer
an inquiry about the
to
which had made her husband
so uneasy, told her that
and claimed the whole of the property
paid,
was
it
his
as
draft
own.''
Suspicion soon fixed upon the prisoner,"* and in his sleeping-
room was
stockings, but with the soil
up
found a pair of stockings rolled feet
clean
like
plastered over with
the
on the wharf, and a ramrod was found
found
of
sort
in
the
The prisoner usually wore boots but on the eventhe murder he wore shoes and stockings.^" It was
privy."
ing of
;
supposed that to prevent alarm to the deceased or the female servant,
the
murderer must
have
approached
shoes,
and afterwards gone on the wharf
pistol
into
the
All the prisoner's
river."'
his pecuniar}' transactions with
upon him, and the payment
He
false.^'^
to
Goom and
of
without
his
throw away the statements as to
his
right to
the bUl, turned
attempted to tamper with the servant
draw to
be
girl as
to
out
her evidence before the coroner, and urged her to keep to one account '^
shot
;^^
These
and before
that
facts collectively
officer
he
made
several incon-
are inconsistent with the firing of the
by any one except Patch
(section
11).
They would
also
be
relevant as being either facts in issue, or the state of things under
which
facts in issue
tunity (sections 7
happened
&
(section
8, illustration
7),
or as preparation or oppor-
h.).
'°
Introductory (section 9).
"
Subsequent conduct influenced by a fact in issue (section
" Irrelevant. " Effect of fact in issue (section
8).
7).
™ State of things under which facts in issue happened (section 7). the facts are Fact and inference are mixed up in this statement such that the deceased and his serwas (1) that the state of things ''
;
vant would have heard the steps of a man with shoes on under the window and (2) that a person who wished to throw anything into ;
the Thames would have to go on to the wharf. '"
Preparation (section
8).
^ Subsequent conduct (section
8),
and admissions
(sections 17ife 18).
8o
Case of R.
Patch.
v.
statements as to his pecuniary transactions with the
sistent
deceased, and
equivocated
much
as to
whether he wore boots
on the evening of the murder, as well as to the
or shoes
ownership
of
the
soiled
clearly proved to be his,
made no attempt
to
stockings,"* which,
and
for the
however, were
state of
soiled
The prisoner suggested the
account.^*
existence of malicious feelings in two persons with
deceased had been on
doing
for
him any
upon both occasions Remarks case.
ill
injury
and
may
it
it
no one
be regarded as
clearly proved
that
and the
of difference,
a very complete illustration
11.
else,
was
method
The general effect Patch had motive and opportunity
of section
the
of attack they were at a distance."
Patch's case illustrates the
whole of
whom
but they had no motive'-'
terms,^^ ;
which he
of
evidence
the
for the
is,
that
murder, and that
except himself, could have fired either the shot
which caused the murdered man's death,
or the shot
which
show that the murdered man had enemies who wished to murder him. The relevancy of the first shot arose from the suggestion that it was an act of preparation. The proof that it was fired by Patch consisted of independent facts, showing that it was fired, and that he, and no one else, could have fired it. The firing of the second shot by which the murder was committed was a fact in issue. The was intended
proof of
it
to
by a strange combination
of circumstances
precisely similar in principle to the proof as to the
was
first shot.
The case is also very remarkable as showing the way in which the chain of cause and effect links together facts of the most dissimilar kind and this proves that it is impossible to ;
draw a
line
between relevant and irrelevant
facts
otherwise
by enumerating as completely as possible the more common forms in which the relation of cause and effect dis-
than
plays ^* ^^ ""
itself.
In Patch's case the
Effect of fact in issue (section I.e.,
firing of the
7).
no special motive beyond general
^ Motive ill-will.
Pacts inconsistent with relevant fact (section
* P. 34
first
11).
shot was
(section
8).
— Case of R.
v.
by way
an act of preparation
8i
Patch.
of
what
called
is
evidence," but the fact that Patch fired
"
making
appeared from a
it
combination of circumstances which showed that he might,
and that no one
else could,
have done
easy to con-
It is
so.
some one of the facts necessary to complete this For proof might have had to be proved in the same way. ceive that
instance, part of the proof that Patch fired the shot consisted
in the fact that no one left certain premises
by a
which was one of the suppositions necessary
certain gate
to be negatived
show that no one but Patch could have fired the The proof given of this was the evidence of a man
in order to shot.
standing near,
who
at the time in
said that
question no one
did pass through the gate in his presence, or could have done so unnoticed
Suppose that the proof had been that
by him.
the gate had not been used for a long time
had been spun were unbroken
all
after the shot
have been spun examined.
over the opening of the gate
at night
;
that spiders' webs
;
that they
;
and remained unbroken in the morning
and that
it
was impossible that they should
after the shot
was
fired
and before the gate was
In that case the proof would have stood thus
:
Patch's preparations for the murder were relevant to the
question whether he committed
it.
Patch's firing the
The
shot was one of his preparations for the murder.
first
facts
inconsistent with his not having fired the shot were relevant to the question whether he fired
it.
The
fact
that a certain
door was not opened between certain hours was one of the facts
which, taken together, were inconsistent with his not
having
fired
The fact that a spider's web was whole in the morning was inconsistent with the
the shot.
overnight and also
door having been opened. Inversely, the integrity of the spider's
the opening of the door to the firing of the
first
;
shot
;
second shot was a fact in issue
web was
relevant to
the opening of the door was relevant
the firing of the
relevant to the firing of the second shot
spider's
web was
;
;
and the
shot was
firing of the
therefore the integrity of the
relevant to a fact in issue.
G
first
82
On Old
v.
Case of E.
v.
Palmer.
Case of R.
Palmer.'
the 14tli of May, 1856, William Palmer was tried at the Bailey,
under
powers
Bench by 19 Vic, Parsons Cook at Eugeley, in Queen's
twelve
days,
prisoner
and ended
on
conferred for
16,
c.
The trial lasted May, when the
27th
the
was convicted, and received sentence
which he was afterwards executed
was
a sporting
also
man
;
on
of death,
at Stafford.
Palmer was a general medical practitioner engaged iu sporting transactions.
of
Courts
murder of John
the
Staffordshire,
on
the
at Eugeley,
much
and
Cook, his intimate friend, attending
after
Shrewsbury
him on the 13th November, 1865, returned in his company to Eugeley, and died at the Talbot Arms Hotel, at
races with
that place, soon after midnight, on the 21st ITovember, 1855,
under circumstances which raised a suspicion that he had been poisoned by Palmer.
The
case against
he had a strong motive to murder his conduct before, at the time
and
of,
with the circumstances of the death
Palmer was that
friend,
death, coupled
after his itself,
and that his
left
no reasonable
doubt that he did murder him by poisoning him with antimony
and
strychnine,
antimony
administered
probably
being
used
on
various
as
a
occasions
preparation
—
for
^the
the
strychnine.
—
At the time of Cook's The evidence stood as follows death. Palmer was involved in bill transactions which appear His wife died in September, to have begun in the year 1853. :
'
Eeprinted
England,"
from
p. 357.
my
" General
View
of the
Criminal
Law
of
Case of R. 1854,
and
on her
life,
on her
Palmer.
v.
83
he received £13,000 on
death
policies
nearly the whole of which was applied to the dis-
charge of his
In the course of the year 1855 he raised other large sums, amounting in all to £13,500, on what liabilities."
purported to be acceptances of his mother's.
The
bills
were
renewed from time to time at enormous interest (usually sixty per cent, per annum) by a money-lender named Pratt, who, at the time of Cook's death, held eight bills four on his own
—
account and four on account of his client due,
and
six others falling due
two abeady over-
;
—some in November and others
About £1,000 had been paid off in the course of the year, so that the total amount then due, or shortly to faR due to Pratt, was £12,500. The only means which Palmer had by which these biUs could be provided for was a policy on the life of his brother, Walter Palmer, for £13,000. in January.
Walter Palmer died in August, 1855,' and William Palmer
had instructed Pratt
to recover the
but the
refused to pay.
office,
office
amount from the insurance In consequence of
difficulty, Pratt
earnestly pressed Palmer to
in order to keep
down
He
this
pay something
the interest or diminish the principal
him and his mother on the 6th November, and informed him in substance that due on the
bills.
issued writs against
they would be served at once, unless he would pay something
on account.
Shortly before
the
Shrewsbury races he had
paid three sums, amounting in
accordingly
which £600 went in reduction of the deducted for
was
to
interest.
money due
to Pratt, Mr.
held bUls for £10,400.
collaterally secured
Palmer's property.
by a bUl
and £200 was
A bill was A bUl was
Wright of Birming-
Part of these, amounting
by Mrs. Palmer, fall
WiUiam
due on the
Mr. Padwick also held a
found against him for her murder. found against Palmer for his murder.
to
part were
of sale of the whole of
These biUs would
second week of November.
^
£800, of
was understood that more money
£6,500, purported to be accepted
"
principal,
to
be raised as early as possible.
Besides the
ham
It
all
first
or
bill
of
^4
Case of R.
Palmer.
v.
the same kind for £2,000, on which £1,000 remained unpaid,
and which was twelve months overdue on the 6th of October, 1855.
Palmer, on the 12th November,
had given Espin a
cheque antedated on the 28th November, for the other £1,000. Mrs. Sarah Palmer's acceptance was on nearly all these biUs,
and in every instance was forged. The result is, that about the time of the Shrewsbury races. Palmer was being pressed for payment on forged acceptances to the
were
amount a
of nearly £20,000, and that his only resources
certaiu
amount
of personal property,
over which
Wright held a bill of sale, and a poUcy for £13,000, the payment of which was refused by the of&ce. Should he succeed in obtaining payment, he might no doubt struggle through his
but
difficulties,
there
stUl
remained the
cheque given to Espia, which at once
his
by some means
own was proved by
it
It
of a farmer
was necessary
or other.
to provide for
That he had no funds of
the fact that his balance at the bank
on the 19th November was £9
£25
£1,000 antedated
6s.
named WaUbank,
and that he had to borrow to go to
Shrewsbury
races.
foUows that he was under the most pressing necessity to
obtain a considerable
obtaining
it
sum
of money, as even a short delay in
might involve him not only in insolvency, but in
a prosecution for uttering forged acceptances. Besides the embarrassment arising from the bills in the
hands of
Pratt,
Wright, and Pad wick, Palmer was involved in
a transaction with Cook, which had a bearing on the rest of the case.
Cook and he were
Pratt had discounted, giving rant for £65,
He
and
also required
parties to a bill for
£365 in
charging £60
for
cash,
£500 which
and a wine war-
discount and expenses.
an asignment of two racehorses of Cook's
— Pole-star and Sirius — as a collateral security.
By
Palmer's
request the £365, in the shape of a cheque payable to Cook's order,
and the wine warrant, were sent by post
Doncaster.
to
Palmer
at
Palmer wrote Cook's endorsement on the cheque,
and paid the amount to his own credit atjthe bank at Eugeley.
On
the part of the prosecution
it
was said that
tliis
transac-
Case of R. v. Palmer. tion afforded a reason
inasmuch as
Cook,
it
why Palmer
that there were
should desire to be rid of
amounted to a forgery by which Cook
was defrauded of £375. side,
85
It appeared, however,
£300 worth
on the other
some
of notes relating to
other transaction, in the letter which enclosed the cheque; and as it did not appear that
Cook had complained
consideration for his acceptance,
it
was suggested that he had
authorized Palmer to write his
name on
cheque, and had taken the notes
himself.
seems not improbable, as plain
why Cook
ceptance, for the
it
of getting no
the
back
This arrangement
would otherwise be hard
case that there
ex-
to
acquiesced in receiving nothing for his ac-
and there was evidence that he meant
bUl when
the
of
became due.
it
was another bin
Palmer were jointly
to provide
It also appeared late ia the for
£500, in which Cook and
^
interested.
Such was Palmer's position when he went to Shrewsbury 1855. Cook was races, on Monday, the 12th November, there also ;'and on Tuesday, the 13th, his mare Pole-star
won
the Shrewsbury Handicap, by which he became entitled to the stakes,
worth
nearly £2,000.
about £380, and bets
Of these
the course at Shrewsbury. saU's
bets he received
The
rest
was
to
to
the
£700
amount of or
£800 on
be paid at Tatter-
on the following Monday, the 19th November.
^
After
the race Cook invited some of his friends to dinner at the
Eaven Hotel, and on that occasion and on the foUowiag day On the Wednesday night a he was both sober and well.'' man named Ishmael Fisher came into the sitting-room, which Palmer shared with Cook, and found them in company with Cook comsome other men drinking brandy and water. plained that the brandy " burned his throat dreadfully," and '
put down his glass with a small quantity remaining in it. Palmer drank up what was left, and, handing the glass to Eead, asked him '
^
tion
if
he thought there was anything in
it
to
these facts go to show motive (section 8). (secState of things under which the following facts occurred
AH 7).
86
Case of R.v. Palmer. which Eead
when
"
replied,
What's the use of handing
me
the glass
empty?"
Cook shortly afterwards left the room, called out Fisher, and told him that he had been very sick, He and, " he thought that damned Palmer had dosed him." also handed over to Fisher £700 or £800 in notes to keep for him.^ He then became sick again, and was iU aU night, and had
it's
to
He
be attended by a doctor.
told the
doctor,
Mr.
Gibson, that he thought he had been poisoned, and he was treated on that
that
Cook had
Next day Palmer told Fisher that he (Palmer) had been putting some-
supposition. said
He added
thing into his brandy. tricks with people,
before
'
that he did not play such
Cook had been drunk the night
and that
—which appeared not
to be the
expressly say that he returned the
the
course of the evidence
it
case.
money
Fisher did not
8
to
seems that he
Cook, but from did,
'
Cook
for
asked him to pay Pratt £200 at once, and to repay himself on the following
Monday
out of the bets which he would receive
on Cook's account at the
About
settling at Tattersall's.
the Wednesday,
half-past ten on
Cook drank the brandy and water which he
shortly before
complained
and apparently
Palmer was seen by a Mrs. Brooks
of.
in the
passage looking at a glass lamp through a tumbler
contained some clear iluid
shaking and turning in
Ms
have been no secrecy in
to
and continued
to hold
like
hand. this,
as
and which
whom
he
he spoke to Mrs. Brooks
oflfence
as
he did
so.
'"
was committed, and
statement explanatory of such conduct (section 8
;
exp.
1).
'The administration of antimony by Palmer would be a issue, as
was
There appears, however,
and shake the tumbler
Conduct of person against
*
water,
which
fact in
being one of a set of acts of poisoning which finally caused
Cook's death.
Cook's feelings were relevant as the efiect of his being
poisoned (section
7)
and
;
his statement as to
them was
relevant under
section 14 as a statement showing, the existence of a relevant bodily feeling. '
Admission (sections
'
Motive (section
'"
17, 18).
8).
Preparation (section
8).
Case of R.
Palmer.
v.
87
George Myatt was called to contradict this
He
said tliat
for the prisoner.
was in the room when Palmer and Cook
lie
Cook made a remark about the brandy, though he gave a different version of it from Fisher and Eead that came
in
;
that
;
he did not see anything put in
been put
in
it
Palmer never
it,
he should have
left
Cook went
to bed.
and Eead."
All
and that
He
seen.
anything had swore that
also
the room from the time he came in
He
this,
however, came to
As Myatt was
till
put the time later than Fisher
also
very
the sort of difference which always arises evidence.
if
was
It
little.
in the details of
a frend of Palmer's, he probably
remembered the matter (perhaps honestly enough) in a way
more favourable
to
him than
appeared from the evidence of Mrs. Brooks, and also
It
from that of a
man named
Cook were taken £1 tion,
an
Herring, that other persons besides
at Shrewsbury,
with similar symptoms.
observation
poisoned his
the other witnesses.
in
way back
we thought
Shrewsbury.'' to
The evidence
Mrs.
on the evening Brooks
water
the
Palmer
said,
might
himself
in ques-
We
made
have
been
"
vomited
on
Rugeley according to Myatt.'^ as
to
what passed
at
Shrewsbury
clearly
proves that Palmer, being then in great want of money. Cook
was to his knowledge in possession of £700 or £800 in banknotes, and was also entitled to receive on the following
Monday about £1,400 more. It also shows have given him a dose of antimony, though
that Palmer
may
the weight of the
weakened by the proof that diarrhoea and vomiting were prevalent in Shrewsbury at the time. evidence to this. effect
It
however,
is,
is
important
in
connection with
subsequent
events.
On
Thursday, November 15th, Palmer and Cook returned
together to Pugeley, which they
Cook went
to the Talbot
reached
Arms, and Palmer to his own house
" Evidence against last fact (section
" Facts tion
9).
rebutting
about ten at night.
5).
inference suggested
by preceding
fact
(sec-
88
Case of R. Cook
immediately opposite.
On
Palmer.
v.
stUl complained of being
imweU.
the Friday he dined with Palmer, in company with an
Jeremiah Smith, and returned perfectly sober
attorney, Mr.
about ten in the evening." At eight on the following morning
(November 17th) Palmer came
and ordered a cup
over,
of
was given to Cook by Mills the chambermaid, in Palmer's presence. "When she next went to his room, an hour or two afterwards, it had been vomited.'* In
The
coffee for him.
coifee
the course of the day, and apparently about the middle of the day, Palmer sent a charwoman,
named Eowley,
broth for Cook at an inn called the Albion. to Palmer's house, put
Soon
room.
and sent from
who
it
Mr.
after
it
by the
Palmer brought
to the Talbot
Arms with
Jeremiah Smith.
at first refused to take it
said he
must have
it out,
poured
It
noon Palmer of age, his
to see Cook,
(Palmer's)
came
it
to Cook, in,
and
The chambermaid brought back the
it.
called
the
left
Palmer, however, came
was thrown up."
also
it
into a cup,
a message that
broth which she had taken downstairs, and
room.
it
The broth was given ;
some
She brought
warm, and
to
fire
to get
left
it
In the course of the
in Mr. Bamford, a surgeon
the
in
after-
eighty years
and told him that when Cook dined
house he had taken too
at
much champagne.
'^
Mr. Bamford, however, found no bilious symptoms about him,
and he said he had only drunk two
day night Mr. Jeremiah Smith
was
still
On
ill.
Palmer sent
the
over his
" Introductory
to
its
On
the Satur-
Cook's room, as he
between
twelve
gardener,
Hawley,
with some more
what follows
Pact in issue and
slept in
^^
Sunday,
things under which following '*
glasses.
(section
9),
and
and shows
one,
state
of
facts occurred (section 7).
eifect,
as
this
was an act of poisoning
(section 5).
" Conduct and statements explaining conduct '°
(section 8).
Eebuts inference in Palmer's favour, suggested by preceding
and
explains the object of his conduct
was
false (section 9).
(section 14).
by showing that
fact
his statement
Cook's statement relates to his state of body
Case of R. broth for Cook. "
Arms, tasted
Palmer.
v.
89
Elizabeth Mills, the servant at the
taking two or three spoonfuls.
it,
Talbot
She became
exceedingly sick about half an hour afterwards, and vomited till five
o'clock in the afternoon.
go to bed.
to
She was
This broth was also
cup afterwards returned
Palmer.
to
By
^°
ill
had
that she
taken to Cook, and the It appears
taken and vomited, though the evidence
on that point.
so
have been
to
not quite explicit
is
the Sunday's post Palmer wrote to Mr.
an apothecary, and Cook's most intimate friend, to come and see him. He said that Cook was " confined to his Jones,
bed with a severe
The
bilious
servant Mills said
on the
observed
there of
part
combined with
attack,
was no
the
diarrhoea." '^
diarrhcea.
defence that this
was
It
was
letter
The prosecution suggested that it was " part of a deep design, and was meant to make evidence in the prisoner's favour." The fair conclusion seems strong
proof of innocence.
be to that
it
was an ambiguous act which ought
neither way, though the falsehood about Cook's suspicious as far as
On
When
on the Monday he
She
"
said,
Why
He
said,
street.
not
It
sure.
was just mad
" I
for
he
was
all
fast
disturbed
two minutes."
He
? "
and
asleep,
by a
This incident
called at the request
not
" I
hear
quarrel in the
was not
mentioned
at first
It
of the prisoner's counsel.
had an attack
of
was
" Fact in issue
some kind before administered
;
—administration of
Effects of facts in issue (section
" Conduct (section
8),
it
and
by
being re-
their
was con-
Cook had
sidered important for the defence, as proving that
'8
said,
might have waked and disturbed him, but he was
Barnes and MiUs, but was brought out on
strychnine
is
Monday Cook had some
did you not ring the bell
said
also
symptoms
the servant Mills went into his room
thought that you would be it."
weigh
goes.
it
the night between Sunday and
sort of attack.
to
was suggested that any the
principal
poison (section
5).
7).
and explanation of
it
(section
9).
medical
Case of R.
90 witness
the
for
v.
Palmer.
Mr. Nunneley, referred to
defence,
it
with
this view.'^"
On
the Monday, about
Palmer
itgain visited
He
Cook
but as he was in London about
;
must have gone
half-past two, he
During
a quarter-past or half-past seven,
to
town by an
early train.
whole of the Monday Cook was much
the
better.
dressed himseK, saw a jockey and his trainer, and the
sickness ceased.^'
In
meantime
the
appointment a
man named
the turf Palmer told
and read read
it,
to
him from
was in London.
Palmer
Herring,
him he wished a
the particulars
list,
who was
He met hy
connected with
to settle Cook's account
which Herring copied
of the bets
which he was
Palmer
as
to receive.
£984 clear. Of this sum Palmer instructed Herring to pay £450 to Pratt and £350 to Padwick. The nature of the debt to Padwick was not proved in evidence, as Padwick himself was not called. Palmer told Herring the
They amounted
£450 was horses.
words
:
—
to
He "
to
settle the bill
for
which Cook had assigned
wrote Pratt on the same day a
Dear
Sir,
—you
in these
letter
£50 I have
will place the
his
just paid
£450 you will receive from Mr. Herring, together £500, and the £200 you received on Saturday " (from Pisher) "towards payment of my mother's acceptance for
you, and the
£2,000 due 25th October.^^
Herring received upwards of £800, and paid part of
accordmg the £450
to Palmer's directions. ;
Pratt gave Palmer credit for
was retained by Mr.
some debts due from Cook
less
away
but the £350 was not paid to Padwick, according
to Palmer's directions, as part for
it
than he expected.
said that the
to him,
Herring
and Herring received
In his reply the Attorney-General
£350 intended
to
be paid to Padwick was on
account of a bet, and suggested that the motive was to keep '°
Fact tending to rebut inference from previous facts (section
'^'
Supports
the
inference
suggested by the
Palmer's doses caused Cook's illness (section "'
previous
fact
9).
that
9).
Conduct and statement explanatory thereof (section
8, ex. 2).
;
Case of R. Padwick quiet to
Palmer.
v.
as to tlie aute dated cheque for £1,000 given
Espin on Padwick's account.
and
this,
tended
it
not
is
he
to
g
much
of
paid
There was no evidence of
importance.
Padwick
to
on
It
was
clearly in-
not
account,
thus
disposed,
attempted
or
to
dispose,
Palmer
the
in
course of
Monday, Nov. 19th, of the whole of Cook's winnings
own
and Palmer were
to the
biU for £500, in which Cook
On
jointly interested.
Cook and Palmer dined together (Nov. Fisher (his agent) in these words
:
—
the
" It is of
"
should be paid to a Mr. Pratt, of
" 300?. has
enough
" this,
been sent
to
up
" at TattersaU's."
if
Mayfair
Street,
you would be kind
I will settle it
receipt of
on Monday
Fisher did pay the £200, expecting, as he
a
person," said Pratt,
me
"
know, called on
"
account of the prisoner
"whose name I did not
with a cheque, and paid ;
me
300?.
When Pratt
heard
death he wrote to Palmer, saying, " The death of
Mr. Cook wiU now compel you
to look about as to the pay-
£500 due the 2nd of December." ^^ Great use was made of these letters by the defence.
ment
on
that " (apparently the cheque, not
the 300?.) " was a cheque of Mr. Fisher's." of Cook's
£500
of
Saturday, Nov. 17th (the day after the date of
the
letter), "
oblige me.
to
Cook's account on the Monday, and repay him-
said, to settle
On
and
sum
pay the other £200 to-morrow, on the
you wiU greatly
seK.
to-night,
Queen
when
very great im-
portance to both Palmer and myself that a 5,
Friday
Cook wrote
16),
"
"
his
a convenient place to mention the final result of
is
the transaction relating
the
for
advantage.'^
This
"
Cook
of
(except possibly as to a small part), but of Palmer.
of the bUl for
was argued that they proved that Cook was helping Palmer, and was eager to relieve him from the pressure put on him by Pratt
£500 '"
;
that in consequence of this he not only took
bill,
It
up the
but authorized Palmer to apply the £800 to similar
All this
is
Palmer's conduct,
and
is
explanatory of
7,9).
" Motive for not poisoning Cook (section
8).
it
(section
i
Case of R.
92
purposes, and to get the
which he had advanced interest,
die, especially as
the
settled
to Pratt.
on
first
this
It
by Herring, instead out of it the £200
was asked how
could
it
Cook should
supposition, that
consequence of his death was Pratt's
money due on the £500
application for the
These
amount
Palmer.
Fisher might not stop
of Fisher, so that
be Palmer's
v.
arguments were, no doubt,
bill.
plausible
that Cook's death compelled Pratt to look to
and the
;
Palmer
fact
the
for
£500 lends them weight but it may be asked, on the other hand, why should Cook give away the whole of his winnings to Palmer ? Why should Cook allow payment
of the
;
Palmer to appropriate to the diminution of his own
liabili-
£200 which Fisher had advanced to the credit of the biU on which both were liable ? Why should he join with the
ties
Palmer in a plan advance
As
No
?
for defrauding Fisher of his security for this
answer to any of these questions was suggested.
to the £300, Cook's letter
sent
up
received
for
it,
Cook's death. did receive
he
£300
lias
ieen
There was evidence that Pratt never
evening."
this
to Fisher says, "
applied to Palmer for
the
money on
Moreover Pratt said that on the Saturday he
£300 on account of Palmer, which he placed
Where
the account of the forged acceptance for £2,000.
Palmer get the money
to
did
The suggestion of the prosecution him to pay to Pratt on account of their ?
was that Cook gave it joint bUl, and that he paid
on
it
probably the true view of the
his
case.
own
account.
This was
The observation that
Pratt,
on hearing of Cook's death, applied to Palmer to pay the £500 bill, is
met by the
reflection that
collaterally secured
that the satisfied
other
that biU
by the assignment
was genuine, and
of the racehorses, and
biU bore a forged acceptance,
at all hazards.
The
result is
and must be
that on the
Monday
evening Palmer had the most imperious interest in Cook's death, for he
had robbed him of aU he had in the world, except
the equity of redemption in his two horses.
On Monday and went
to
evening (Nov. 19th) Palmer returned to Eugeley, the
shop of Mr.
Salt,
a
surgeon there, about
Case of R. nine p.m.
He saw
Newton,
v.
Palmer.
93 and asked him
Salt's assistant,
for
three grains of strychnine, which were accordingly given him."
Newton never mentioned
this
before his examination as
transaction tiU a day or two
London, though he
a witness in
was examined on the inquest. He explained this by saying that there had been a quarrel between Palmer and Salt, his (Newton's)
master, and that he thought
him
pleased with
having given
for
Salt
would be
dis-
No
Palmer anything.
doubt the concealment was improper, but nothing appeared on cross-examination to suggest that the witness was willfully perjured.
Cook had been much
Monday evening
Mr.
better throughout
Bamford,
who was
brought some piUs for him, which he
left at
Monday, and on him,
attending
They
the hotel.
They were taken Cook's room by the
contained neither antimony nor strychnine.
up in the box in which they came chambermaid, and were
left
there on the dressing-table about
Palmer came (according
eight o'clock.
to
to Barnes, the waitress)
between eight and nine, and Mills said she saw him the
fire
between nine and
sitting
by
ten.^^
If this evidence were believed he would have
had an oppor-
tunityofsubstitutingpoisonedpillsforthosesentbyMr.Bamford just after he had, according to Newton, procured strychnine.
The
was contradicted by a witness called He said that Jeremiah Smith the attorney.
evidence, however,
for the prisoner,
on the Monday evening, about ten minutes past Palmer coining
in a car
from the
ten,
he saw
directon of Stafford
;
that
they then went up to Cook's room together, stayed two or three minutes, and
went
with Smith to the house of
old
Mrs.
"Bamford sent him some pills, and he had taken them, and Palmer was late, intimating that he should not have taken them if he had thought Palmer Palmer,
his
would have it
Cook
mother.
called in before."
said
If this evidence were believed
would of course have proved that Cook took the piUs which ^ Preparation '"
(section
Opportunity.
The
8).
rest is introductory (section
7, 9).
Case of R.
94 Bamford sent examined
as
by
Palmer.
v.
Smith, however, was cross-
he sent them5
He
length.
Attorney-General at great
the
admitted with the greatest reluctance that he had witnessed the assignment of a policy for £13,000 by Walter to William
Palmer
;
an
that he wrote to
£10,000 on the
£1 a week his widow
;
office to effect
of Bates,
life
who was
an insurance for
Palmer's
groom, at
that he tried, after Walter Palmer's death, to get
give
to
up her claim on the policy
;
that he was
applied to to attest other proposals for insurances on Walter
Palmer's for
£5
life for
similar
amounts
;
and that he had got a cheque
for attesting the assignment.''^
Lord Campbell said of this witness in summing up,
"
Can
you believe a man who so disgraces himself in the witnessbox ? It is for you to say what faith you can place in a witness, who,
by
own
his
admission, engaged in such fraudu-
lent proceedings." It is curious that
much shaken
though the credit of this witness was so
in cross-examination, and though he
was contra-
both by MiUs and Newton, he must have been right
dicted
and they wrong
as
to the time
when Palmer came down
to
Eugeley that evening.
Mr. Matthews, the inspector of police
Euston
proved that the only train by which
at the
station,
Palmer could have left London Herring) started at
five,
after half-past
and reached Stafford on the night in
question at a quarter to nine. Stafford to Eugeley, so that he
the road in
him
"
much
less
""
tion "^
;
about ten miles
is
coixld
from
not have got across by
than an hour -^ yet Newton said he saw
is
more
on the other hand,
difficult if
ten.''
than to speak accurately to
Smith spoke the truth Newton
Evidence against the existence of the
fact last
mentioned
(sec-
5).
This cross-examination tended to test the veracity of the witness
and to •"
It
about nine," and MiUs saw him " between nine and
Nothing, however,
time
two (when he met
test his credit (section 146).
Facts inconsistent with a relevant fact
(section 11),
he time of the occurrence of a relevant fact (section
9).
and
fixing
Case of R. could not have seen
him
must have seen him
v.
Palmer.
at all that night,
for a
moment only
and
95 Mills, if at aU,
in Smith's company.
Mills never mentioned Smith, and Smith would not venture to
swear that she or any one else saw him at the Talbot Arms.
It
was a suspicious circumstance that Serjeant Shee did not open Smith's evidence to the jury.
An opportunity
for perjury
was
by the mistake made by the witnesses as to the time, which the defence were able to prove by the evidence of the police inspector. If Smith were disposed to tell an untruth, the knowledge of this fact would enable him to do so with an
afforded
appearance of plausibility.
Whatever view was
is
taken as to the
evidence
clearly proved that about the middle of the night
Monday and Tuesday Cook had About
When
in
beU rang
;
it
between
a violent attack of some
twelve, or a little before, his
sort.
he screamed
came in he was sitting bed, and asked that Palmer might be fetched at once.
violently.
up
effect of this
He was
Mills, the servant,
beating the bedclothes
and jerked.
He had great
protruded.
His hand
Palmer came
He
pills.
whole body jumped
and he asked
and to
his eyes
have
it
and gave him a draught and some glass,
He had
teeth.
stiff,
if
and got both it and the spoon
also great difficulty in swallowiag
After this he got more easy, and Palmer stayed by
the piUs.
him some Great
in,
his
difficulty in breathing,
was
snapped at the
between his
he said he should suffocate
His head and neck and
he lay down.
rubbed.
;
time, sleeping in an easy chair.^
efforts
were made in cross-examination to shake the
evidence of Mills by showing that she had altered the evidence
which she gave before the coroner, so as to make her description of the symptoms tally with those of poisoning by
by showing that she had been drOled as the evidence which she was to give by persons connected
strychnine, and also to
with the prosecution.
'"
tion
Effect 7).
of fact
She denied most of the suggestions
in issue,
iiiz.,
the administration of poison (sec-
96
Case of R.
v.
conveyed by the questions asked
As
to the differences
and
the
at
show that the
called to
at the inquest.
On
her,
others."
(Mr.
Gardner, an attorney) was
depositions were not properly taken
''
the following day, Tuesday, the 20th, Cook was a good
deal better.
Palmer
if
In the middle of the day he sent the boots to ask he might have a cup of
might, and came over, tasted a cup
took
and explained
between her evidence before the coroner
a witness
trial,
Palmer.
it
from her hands to give
it
Palmer said he
coffee.
made by the
servant,
,
and
This coffee was
to Cook.
afterwards thrown up.'^
A
little
before or after this, the exact hour
Palmer went
to
is
not important.
the shop of Hawkins, a druggist at Rugeley,
and was there served by his apprentice Eoberts with two drachms of prussic acid, six grains of strychnine, and two drachms of Batley's sedative.'* Whilst he was making the purchase,
Newton, from
whom
he had obtained the
other
Palmer took him
to the
strychnine the night before, came in
;
speak to him; and when he was
door,
saying he wished to
there
asked him a quesion about the farm of a Mr. Edwin
Salt
—a
matter
with which he
had nothing
at
aU
to
do.
Whilst they were there a third person came up and spoke to
Newton, on which Palmer went back
into. Hawkins'
shop and
took away the things, Newton not seeing what he took. obvious suggestion upon this
is
that Palmer wanted to pre-
vent Newton from seeing what he was about.
2'
Former statements inconsistent
'*
The
depositions
No
attempt
with, evidence (section 155).
before the coroner would be a proper
proof as being a record of a relevant fact in the discharge of his official
The
made by a
duty (section
35),
mode
of
public servant
and any document
purporting to be such a deposition would on production be presumed to be genuine, and the evidence would be presumed to be duly taken (sections 79
nition =^
"
of
and
80),
but this might
be rebutted (section
shall presume.'
Part of the transaction of poisoning (section Preparation (section
8).
8).
8),
defi-
Case of R.
97
Palmer.
v.
even was made to shake, or in any way
discredit,
Eoberts the
apprentice.^'
At about
four p.m. Mr. Jones, the friend to
had written, arrived from Lutterworth.'^
He
whom
Palmer
examined Cook
in Palmer's presence,
and remarked that he had not the tongue
of a bilious
patient
to
have seen
before."
it
;
which Palmer
Cook appeared
replied,
"
You
should
to be better during the
At about seven p.m. Mr. Bamford came in, and Cook told him in Palmer's presence that he objected to the pills, as they had made him ill the night before. The three medical men then had a private consultation. Palmer proposed that Bamford should make up Tuesday, and was in good
spirits.'*
the pills as on the night before, and that Jones should not
tell
Cook what they were made of, as he objected to the morphine which they contained. Bamford agreed, and Palmer went up to his house with him and got the pills, and was present whilst He they were made up, put into a pill-box, and directed. Cook took them away with him between seven and eight.'^ was well and comfortable all the evening he had no bilious ;
symptoms, no vomiting, and no
diarrhoea.'*
Towards eleven Palmer came with a box
He
Bamford's hand.
of pills directed in
called Jones's attention to the goodness
man
of the handwriting for a
of eighty.**
It
was suggested by
the prosecution that the reason for this was to impress Jones
with the fact that the
With
reference
to
had been made up by Bamford.
pills
evidence
Smith's
it
is
remarkable that
Bamford on the second night sent the pills, not " between Palmer pressed Cook to take nine and ten," but at eleven. the
him
pills,
which
at
first
so iU the night before.
afterwards vomited.
whether the '^
he refused to
Condact
pills
At last he
do, as
did
so,
they had made
and immediately
Jones and Palmer both examined to see
had been thrown up, and they found that ''
(section 8).
3*
State of things under which
'5
Preparation (section
'"
Conduct and statements
Introductory (section 9).
Cook was poisoned
8).
(section
H
8, ex. 2).
(section
7).
98
Case of R. they had not.
This was about eleven.
and went
supper,
Palmer.
v.
Jones then had his
"When
bed in Cook's room about twelve.
to
he had been in bed a short time, perhaps ten minutes, Cook
up and
started
lU
;
called out, " Doctor, get
ring the beU for Mr.
The back
neck."
across the road to Palmer's
came
diately
Two minutes
said he
had never dressed
sitting
By
was
;
I
going to be
Eub my
MOls ran Palmer immehe would come
and hard.
stiff
and rang the beU.
afterwards he was in Cook's room, and so quick in his
The suggestion upon
up expecting
am
also said, "
bedroom window and said
to the
at once.
as usual.
He
Palmer."
of his neck
up
be
to
this
He was
life.
dressed
was that he had been
called.'''^
the time of Palmer's arrival Cook was very
ill.
Jones,
Elizabeth Mills, and Palmer were in the room, and Barnes stood
the
at
Immediately afterwards
pills.
—he
pUls to have any effect
when he began
said,
be convulsed,
to
not, as the limbs
were
He
rigid.
which was done.
—
^too
soon
he
for the
was dreadfully convulsed.
Palmer and Jones
be suffocated."
over,
of his neck were stiff;
Palmer gave him what he said were two
screamed loudly.
ammonia
The muscles
door.
His
"
Eaise
tried to
me up, do
soj
.
He
or I shall
but could
then asked to be turned
heart
began to
beat
weakly.
Jones asked Palmer to get some ammonia to try to stimulate
He
it.
fetched a bottle, and was
When
that purpose.
absent about a minute for
he came back Cook was almost dead,
and he died in a few minutes, quite
quietly.
The whole
The body was twisted back bow, and would have rested on the head
attack lasted about ten minutes. into the shape of a
and
heels,
laid out,
it
had
till
feet also
had
the
been laid on
its
back.
When
the body was
The arms could not be kept down by they were tied behind the back with tape. The
was very
the sides
stiff,
it
stiff.
to be tied,
and the
hand being clenched.
or three quarters of
an hour
hand were very
This was about one a.m., half
after the death.''
Conduct (section
^^
Fact in issue (section
3^
Cook's death, in all its detail,
16).
fingers of one
was a
8).
fact in issue (section 6).
Case of R,
As soon
v.
Palmer.
99
Gook was dead, Jones went out
as
speak to
to
When
the housekeeper, leaving Palmer alone with the body.
Jones she
and
room he sent the servant Mills in, and Palmer searching the pockets of Cook's coat the
left
saw
searching
shortly
under
also
afterwards
returned,
He
and
for
me, as I
Palmer
am
and I hope Mr. Cook's they do not assist me,
any
said, "
take possession
all
five
He
shillings.
Mr. Cook's death
my
me
will not let
friends
horses
will
that
lose
a
is
it
;
If
it.
The
be seized."
said, " It will
Palmer
and added
one,"
that
responsible for £3,000 or £4,000
betting-book was mentioned. to
him
told
to
and
purse, containing five sovereigns
bad thing
Jones
accordingly took possession of his watch
found no other money.
use
Palmer
and
he (Jones) ought
as Cook's nearest friend,
of his property.
pillow and bolster.
the
be
no
would probably be
found.*'
On
"Wednesday, the 21st
racing agent,
who kept
ceived from
Palmer a
against the
amount
Wetherby was
a sort of letter
of the
receive
to
Mr. Wetherby, the London
inst.,
bank
for
enclosing a
sporting
cheque
Shrewsbury stakes for
him.
This
men, for
re-
£350
(£381), which
cheque had been
drawn on the Tuesday, about seven o'clock in the evening, Palmer sent for Mr. Cheshire, under pecuL'ar circumstances.
him to bring a receipt stamp, and when he arrived asked him to write out, from a copy which he produced, a cheque by Cook on Wetherby. He said it was for money which Cook owed him, and that he Cheshire wrote was going to take it over for Cook to sign.
the
postmaster
Eugeley, telling
at
out the body of the cheque, and Palmer took
it
away.
When
Mr. Wetherby received the cheque, the stakes had not been He accordingly returned the cheque paid to Cook's credit. to Palmer, to at the
whom It
trial.''"
the prosecution gave notice to produce
was
called for,
Conduct
(section 8).
" Conduct
(section 8).
'^
*'
but not produced.*'
See section 66 as to notice to produce.
it
This
"
loo
Case of R. was one
Palmer.
v.
Palmer in the whole of
of the strongest facts against
the case,.
had produced the
he
If
and
cheque,
appeared to have been really signed by Cook,
shown that Cook, his stakes
some reason
for
Palmer,
to
strong presumption
the bets to his
own
and
or
In
purposes.
would have
it
have
destroyed the
it
was a forgery
On
as to the motive.
;
of
would have greatly
fact, it
amounted
the other hand, the non-production of the cheque
an admission that
had
it
from Palmer's appropriation
arising
weakened and almost upset the case to
if
had made over
other,
would
this
;
and
if
that were
so.
name for the purpose of stealing his stakes at the time when to all outward appearance there was every prospect of his speedy recovery which must If he knew that Cook result in the detection of the fraud. Palmer was forging his
would die that position
it
friend's
was
night, this
was LQConceivable
On any
natural.
other sup-
rashness.'"
Either on Thursday, 22nd, or Priday, 23rd, Palmer sent for
a paper which he said Cook
Cheshire again, and produced
had given to him some days be aji acknowledgment that which were stated Palmer's.
was
—were
for £1,000,
certain biUs
— the
particulars
for
£500.
This document
ported to be signed by Cook, and Palmer wished
document was
it,
which he refused
called for at the
same observations apply to
it
trial,
£25
to
£9
6s, at
England note
*^ *^
Ab
This
The
^''
Palmer, who,
the bank, and had borrowed
He
paid Pratt £100 on the 24th
he paid a farmer named SpUsbury £46
of
do.
go to Shrewsbury, paid away large sums of money
soon after Cook's death.
sum
to
as to the cheque.'"''
that
pur-
Cheshire to
and not produced.
Evidence was further given to show shortly before, had but
of
considerable, as at least one item
and another
attest Cook's execution of
to
Cook's benefit, and not for
for
all
The amount was
The paper purported
before.
£60
for
or
£50 on the 22nd
thereabouts
in
;
2s.
with a Bank of
and Bown, a draper, a
two £50
notes,
to these inferences see section 114, illust. g.
Conduct
(section 8).
on the 20th,"
Case of R. The general
result of these
appropriated to his
own
appropriate his stakes
;
Palmer.
V.
money
use
transactions
Cook's bets
aU.
loi
and that shortly
;
is,
that Palmer
that he tried to
before, or just
after
he was in possession of between £400 and £600, of which he paid Pratt £400, though very shortly before he was his death,
being pressed for money.
On Wednesday, November
21st,
Mr. Jones went up
to
London, and informed Mr. Stephens, Cook's step-father, of his Mr. Stephens went to Lutterworth, found a
step-son's death.
by which Cook appointed him his executor, and then went on to Eugeley, where he arrived about the middle of the will
He
day on Thursday."* Cook's out of
affairs,
his,
and he
and I
am
asked Palmer for information about
replied, "
There are £4,000 worth of bills
my name
sorry to say
them
to
is
;
but
up by a lawyer and signed by Mr. Cook to show that I never had any benefit from them." Mr. Stephens said that at all events he must be buried. have got
I
Palmer
a paper drawn
offered to do so himself,
and said that the body ought
be fastened up as soon as possible.
to
Palmer went
ended
for the time.
from
Mr. ^Stephens
ordered
a
out,
The conversation then and without authority
shell
and
a
oak
strong
cofEin."^
In the afternoon Mr. Stephens, Palmer, Jones, and a Mr. Bradford,
dined
Cook's brother-in-law,
together,
and
after
dinner Mr. Stephens desired Mr. Jones to fetch Cook's bettingbook.
Jones went to look for
it,
but was unable to find
it.
The betting-book had last been seen by the chambermaid. Mills, who gave it to Cook in bed on the Monday night, when he took a stamp from a pocket at the end of it. that the book could not be found. Palmer said
manner
won
of use.
no
it
hearing,
was
of
no
Mr. Stephens said he understood Cook had
a great deal of
replied, " It's
On
money
at
use, I assure
Shrewsbury, to which Palmer
you
;
when
**
Introductory and explanatory (section
*5
Admission and conduct
a
man
dies, his bets
9).
(sections 17, 18;
section 8).
^02
Case of R. v. Palmer.
He
are done with."
bets
had been paid
mention the fact that Cook's
not
did
to Herring
on the Monday.
Mr. Stephens
then said that the book must be found, and Palmer answered that no doubt
would
it
phens went to look
Before leaving the inn Mr. Ste-
be.^"
at the body, before the coffin
and observed that both hands were clenched. at once to
town and went
to
his attorney.
was fastened
He returned He returned to
Eugeley on Saturday, the 24th, and informed Palmer of his intention to
place on
have a post-mortem examination, which took
Monday,
26th.''^
The post-mortem examination was conducted in the presence of Palmer by Dr. Harland, Mr. Devonshire, a medical student, assisting Dr.
Monkton, and Mr. Newton.
was
empty.
contracted and
There were
The heart
numerous
small
yellowish white spots, about the size of mustard-seed, at the larger
cord
The upper part
end of the stomach.
was
in
its
natural
lower
the
state;
spinal
of the
part
was
not
examined tUl the 25th January, when certain granules were found.
There were
many
follicles
on the tongue, apparently
The lungs appeared healthy to Dr. Harland, but Mr. Devonshire thought that there was some congestion.** Some points in Palmer's behaviour, both before and after the post-mortem examination, attracted notice. Newton said that on the Sunday night he sent for him, and asked of long standing.
what dose grain.
He
of strychnine
would
asked whether
it
and what would be death.
Newton
did not think
it
" It's all right,"
snapped his 40
These
that Pahner stole
duct (sections
a dog.
Newton
said a
would be found in the stomach,
the appearance
said there
of
the
stomach
after
would be no inflammation, and he
would be found.
Newton thought he
as if speaking to himself,
fingers.
facts
kill
replied,
and added that he
Whilst Devonshire was
opening the
and statements together make it highly probable the betting-book, which would be relevant as con-
8, 11).
4'
Introductory to what follows (section
*'
Facts supporting opinions of experts (section 46).
9).
"
Case of R.\. Palmer.
103
stomacli Palmer -pushed against him, and part of the contents of the stomach
was
Nothing particular being found
spilt.
in the stomach, Palmer observed to Bamford, "
They
will not
hang us yet." As they were all crowding together to see what passed, the push might have been an accident and as ;
weU known,
Mr. Stephens' suspicions were
though
natural,
After
coarse.
pleted, the intestines, &c.,
which were
tied
two
he thought
placed
it
examination was
the
were put iato a
jar,
over the top of
and when
it
was missed
When
would be more convenient.
it
was found that a
com-
Palmer removed the jar from
bladders.
the table to a place near the door, said
the remark was
slit
re-
had been cut through both the
bladders.*^
After
the
examination
Mr.
and
Stephens
clerk took
the jars containing the viscera,
Stafford.^"
Palmer asked the postboy
them to Palmer said,
drive
He
Stafford " Is it
Palmer
said, " I believe it is." ?
"
he would upset them
said
if
its
a fly to
going to
said, " I believe I ani."
?
He He
" I suppose
said,
said,
said,
" I
shall
you are
not."
Palmer
He
also said
him.
for
being " a humbugging concern."^'
confusion was introduced
into
this
1
Palmer asked
am."
" I
he would there was a £10 note
something about
&c., in
he was
if
attorney's
Mr. Stephens you are going to take
going to take the jars if
The postboy
?
an
evidence
by the
Some cross-
examination, which tended to show that Palmer's object was to upset Mr. Stephens (J.
Myatt) repeated
difference whether jars, as
it
and not the jars, but as given above.
Palmer wished
they were aU in one
fly,
at last the postboy
Indeed,
to upset
it
makes
little
Stephens or the
and must be upset together
if at aU.
Shortly after the post-mortem examination an inquest was
held before Mr. Ward, the coroner.
It
began on the 29th
November and ended on the 5th December.
"''ir^l,.
^^
Conduct
'"
Introductory (section
''
Conduct
(section 8).
(section 8).
9).
On Sunday,
Case of R.
I04
v.
Palmer.
3rd December, Palmer asked Cheshire, the postmaster, "
had anything open a
Cheshire
fresh."
Afterwards,
letter.
replied that
he
could not
he
he did open a
however,
if
letter
from Dr. Alfred Taylor, who had analyzed the contents of the stomach, &c., to Mr. Gardiner, the attorney for the prosecution,
and informed Palmer that Dr. Taylor said in that no traces
of strychnia were
letter that
Palmer said he knew
found.
they would not, and he was quite innocent.
Soon afterwards
Palmer wrote to Mr. Ward, suggesting various questions to be put to witnesses at the inquest, and saying that he Taylor had
Dr.
Gardiner there were no traces
Mr.
told
knew
strychnia, prussic acid, or opium.
A
few days before
this,
of
on
the 1st December, Palmer had sent Mr. Ward, as a present, a codfish, a barrel key.*^
These
even
criminal
of oysters, a
circumstances conduct.
brace
certainly
Cheshire
and a
of pheasants,
prove
improper and
was imprisoned
and Lord Campbell spoke in severe terms
offence,
conduct of the coroner
;
tur-
for
his
of the
but a bad and unscrupulous man, as
Palmer evidently was, might act in the manner described, even though he was innocent of the particular offence charged.
A
medical book
found in Palmer's possession had in
some MS. notes on the subject of strychnine, one
of
it
which
by causing tetanic contraction of the respiIt was not suggested that this memorandum ratory muscles." was made for any particular purpose. It was used merely to show that Palmer was acquainted with the properties and was, "It kills
effects of strychnine.^^
This
completes
before, at,
and
evidence
the
after the
as
to
death of Cook.
Palmer's It proves
behaviour
beyond
all
question that, having the strongest possible motive to obtain at once a
considerable
sum
of money, he robbed his friend of
the whole of the bets paid to Herring on the series of ingenious devices,
stakes;
it
raises the
and that he tried
strongest presumption
'*
Conduct and
'^
Pact showing knowledge (section
to
Monday by a rob him of the
that
he robbed
facts introductory thereto (sections 8/ 9). 14).
Case of R.
Cook
Palmer.
v.
105
£300 which, as Cook supposed, was sent up to Pratt on the 16th, and that he stole the money which he had on his person, and had received at Shrewsbury it proves that he forged his name the night before he died, and that he of the
;
tried to procure a fraudulent attestation to another forged docu-
ment
relating to his
affairs
the day after he
died.
It
also
proves that he had every opportunity of administering poison to Cook, that he told repeated
lies
about his state of health,
and that he purchased deadly poison, lawful
use,
on two
separate
for
occasions
paroxysms of a similar character to each
which deprived him
of
which he had no shortly before
two
other, the second of
life.
The rest of the evidence was directed to prove that the symptoms of which Cook died were those of poisoning by strychnine, and that antimony, which was never prescribed for
him, was found in his body.
tne course of the
At
as
trial
Both
the state of Cook's health.
Cook was about twenty-eight father and mother died young, and
death
the time of his
years of age.
to
Evidence was also given in
his
He inherited and half-brother were not robust. from his father about £12,000 and was articled to a solicitor. Instead of following up that profession he betook himself to his
sister
sporting pursuits, and appears to have led a rather dissipated life.
He
suffered from sjrphilis,
consulting Dr.
sionally
Dr. Savage saw
him
Savage
and was in the habit of occaon the
in November,
state
of
his
health.
1854, in May, in June,
towards the end of October, and again early in
November
1855, about a fortnight before his death, so that he had ample
means of giving satisfactory evidence on the subject, especially Dr. Savage as he examined him carefuUy whenever he came. said that he had two shallow ulcers on the tongue corresponding to bad teeth that he had also a sore throat, one of his ;
tonsils
small.
being very large, red, and tender, and the other very
Cook himself was
syphilitic, not.
He
afraid that these
symptoms were
but Dr. Savage thought decidedly that they were also noticed
"
an indication of pulmonary affection
1°^
Case of R. under the
man who was saw him some
for
to get
His general health Dr. Savage considered good
winter.
last
him away from his turf Savage recommended him to go ahroad for the Wishing
left lung."
associates, Dr.
Palmer.
v.
Mr. Stephens said that when he
not robust. alive
he was looking better than he had looked
and
time,
on
his
"You do
remarking,
and said he was quite
said that his health
also
not
very
His
well.
Mr. Jones
friend,
was generally good, though he was and played
and that he both hunted
robust,
look
not
himself on the
anything of an invalid now," Cook struck breast,
for a
at
cricket.^*
On the other hand, witnesses who gave a different account of said he
bury
was with him that
races,
mouth and
he
surprised
was
He
in.
months,
A
his health.
at Liverpool a
week
Mr. Sargent
before the Shrews-
he called his attention to the state of his
throat,
complete state of
were called for the prisoner
and the back part of
ulcer.
could
eat
" I
said,"
added the witness, " I was
and drink in the
he had been in that
said
mouth weeks and his
state for
state
and now he did not take notice of
it."
certainly not consistent with Dr. Savage's evidence.
Such being the
state of health
was in a
his tongue
of
Cook
This was ^*
at the time
of his
The prosecution was as to its cause. contended that the symptoms which attended it proved that Several eminent physicians he was poisoned by strichnia. Mr. Curling, Dr. Todd, Sir Benjamin Brodie, and surgeons death, the next question
—
Mr. Daniel, and
Mr. Solly
—gave
an account of the general
character and causes of the disease of tetanus.
Mr. Curling
said that tetanus consists of spasmodic affection of the volun-
tary muscles of the body which at last ends in death, produced either
or
by
suffocation caused
by the wearing
effect
by the
of the
closing of the windpipe
severe
which the muscular spasms produce.
and painful struggles
Of
—idiopathic tetanus, which
are three forms,
'*
State of things uuder which crime
this is
disease there
produced with-
was committed
(section
7).
Case of R.
v.
out any assignable external cause results
from wounds
Palmer. ;
107
traumatic tetanus,
and the tetanus which
;
wliicli
produced by
is
the administration of strychnia, bruschia, and nux vomica, aU of which are different forms of the
same
tetanus
England.
is
a very rare disease
Brodie had seen
who
only one doubtful case of
was surgeon
for twenty-eight years
saw only two. Leeds, had seen four.
pital,
Mr. Daniel,
it.
to the
Bristol
In India, however,
it is
Hos-
comparatively
in twenty-five years' practice there,
cases.
It
was agreed on
all
though the exciting cause of the two diseases
symptoms
Benjamin
Sir
Mr. Nunneley, professor of surgery at
common: Mr. Jackson, saw about forty
in
Idiopathic
poison.
hands, that is
different,
They were described in similar terms by several of the witnesses. Dr. Todd said the disease begins with stiffness about the jaw, the symptoms then extend themselves to the other muscles of the trunk and body. They their
are the same.
When
gradually develop themselves.
begun there are remissions of mission of the symptoms.
much
by one of the
shortest case
In chronic cases
will go
it
on
There was some question as to
as three weeks.
what was the
but not complete inter-
In acute cases the disease termi-
nates in three or four days. for as
severity,
has
once the disease
upon
record.
In a case mentioned
prisoner's witnesses, Mr. Eoss, the
patient
was
said to have been attacked in the morning, either at eleven or
some hours
earlier,
it
did not clearly appear which, and to
This was the
have died at half-past seven in the evening.
shortest case specified on either side, though its duration
not
accurately
determined.
As
a rule,
whether traumatic or idiopathic, was said
however, to
was
tetanus,
be a matter not
of minutes, or even of hours, but of days.^^
Such beiug the nature of four questions arose. of traumatic tetanus
^*
?
tetanus, traumatic
Did Cook die Did he die of
of tetanus
?
idiopathic,
Did he
idiopathic tetanus
Opinions of experts, and facts on which
(sections 45, 46).
and
The rest of the evidence
falls
they
were
?
die
Did
founded
under this head.
"
ioS
Case of R.v. Palmer. he die of the tetanus produced by strychnia the prosecution upon these questions was,
was
action of the muscles (which
Cook's case
who contended
by tetanus
very
his definition of tetanus) in
like "
that the death of
for
Cook was caused
by the tetanus of
in its ordinary forms nor
strychnia, admitted that the
was
that he did die
and even Mr. Nunnely, the principal witness
;
the prisoner,
"
first,
case for
Mr. Curling said no doubt there was spasmodic
of tetanus.
neither
The
?
paroxysm described by Mr. Jones
The
the paroxysm of tetanus.
close general
resemblance of the symptoms to those of tetanus was indeed
assumed by aU the witnesses on both
sides,
was proved
as
by the various distinctions which were stated on the side of the Crown between Cook's symptoms and those of and idiopathic
traumatic
between
prisoner
of
the tetanus
sidered
to
form or
Cook's
tetanus,
and on
symptoms
of strychnia.
and
established that he died
be
side
of
the
symptoms
the
therefore, be
might,
It
the
of tetanus in
con-
some
other.
The next point
asserted
by the prosecution was,
that he did
not die of traumatic or idiopathic tetanus, because there was
no wound on
symptoms
was
different.
symptoms were those
Upon
these
any form
Q.
"
What
" tetanus
or
They
"
by
was
?
He
"
them from the
which you have described?"
" milder
A.
" Yes."
He
of tetanus."
Q.
:
—Mr.
consistent with
come under
answered, " 'No."
cases
of traumatic
notice the disease has been preceded
symptoms
" their complete
foUows
A. "There was the In aU cases that have
" sudden onset of the fatal symptoms.
my
as
tetanus which has ever
observation
the
strychnia.
Were the symptoms
distinguished
" fallen under
asserted that
further
the evidence
of traumatic
" your knowledge
because the course of the
also
of poison
points
Curling was asked, Q. "
and
his body,
by the
" Gradually progressing to
development, and completion, and death also
?
mentioned "the sudden onset and rapid
subsidence of the spasms " as inconsistent with the theory of either traumatic
or idiopathic tetanus
;
and he said he had
;
Case of R.
known
never
In the one case which occupied so
short a time, the true period
Benjamin Brodie was
"
could not be ascertaiaed.
was from one
general, the time required
asked, "
as
In
to several days.
Sir
In your opinion, are the symp-
toms those of traumatic tetanus or not
" far
109
case of tetanus whieli ran its course in less
a
than eight or ten hours.
"
Palmer.
v.
?
He
"
replied, "
As
the spasmodic contraction of the muscles goes, the
"
symptoms resemble those of traumatic tetanus as to the course which the symptoms took, that was entirely different." He added, " The symptoms of traumatic tetanus
"
always begin,
;
"
as
" stiffness of the lower " first
"
complained of
seen,
—at
jaw being, I least, so it
very gradually, the the
believe,
has been in
" extremities " the
much later; a much less
are affected in
neck and trunk, except in some
symptom
my experience
then the contraction of the muscles of the back
" a later symptom, generally
"
have
as I
far
always
is
the muscles of the degree than those of
cases,
where the injury
has been in a limb, and an early symptom has been a con-
" traction of the " lect
case in which in
a
" contraction "
muscles of that limb.
stand was stated to
three
" period " to sion,
days,
I
;
and
have terminated " I
runs
often
know one
of
the
there was that
hand which I under-
The
have existed in this instance.
" ordinary tetanus rarely "
ordinary tetanus
muscles
of the
I do not myself recol-
is
its
course in less that two or
protracted
case only in
to
a
much
longer
which the disease was said
in twelve hours."
He
said, in
conclu-
never saw a case in which the symptoms described
" arose from any disease
;
when
I
say that,
of course I refer
" not to the particular
symptoms, but to the general course
"
took."
which the symptoms
Mr. Daniel being asked whether
the symptoms of Cook could be referred to idiopathic or trau"
In
my
judgment they could
He
matic tetanus,
said,
also said that
he should repeat Sir Benjamia Brodie's words
if
he were
that the
to
enumerate the
symptoms were not
witnessed
;
and Dr. Todd
distinctions.
referable to
said,
" I
not."
Mr. SoUy said
any disease he ever
think the symptoms
were
'
I
lo
Case of R.
The same opinion was expressed with
those of strychnia."
equal
confidence
Palmer.
v.
by
Dr.
Alfred
Dr.
Taylor,
and
Eees,
Mr. Christison.^*
In order to support
who gave account
called
strychnia,
The
who was
Senet,
1845,
fatal cases of poisoning
of three
cases
fatal
by
was that
of
Agnes Trench, or
accidentally poisoned at Glasgow Infirmary, in
by some piUs which she
and which were intended
took,
According to the nurse, the
a j^aralytic patient.
for
evidence witnesses were
and of one case in which the patient recovered. of the
first
general
this
was
girl
taken Ul three quarters of an hour, according to one of the (who, however, was not present) twenty minutes
physicians
swallowed the
after she floor
when her
;
clothes
she vomited slightly
spine
of the
curved.
seconds,
were cut
;
fell
suddenly back on the
was
off she
arms were stretched
poker," her
traction
She
pills.
out, _
mouth and
face,
"just like a
her hands
had no lockjaw
she
stiff,
;
there
clenched;
was a
re-
the head was bent back, the
She went into severe paroxysms every few
and died about an hour
She was perfectly conscious.
after
the
symptoms began.
The heart was found empty on
examination.
The second case described was that of Mrs. Serjeantson Smyth, who was accidentally poisoned at Eomsey in 1848, by strychnine put into a dose of ordinary medicine instead of
She took the dose about
salicine.
seven
by a
;
in five or ten minutes
violent
five
or ten minutes after
more the servant was alarmed
ringing of the beU.
She found her mistress
leaning on a chair, went out to send for a doctor, and on her return found
her on the
floor.
She screamed loudly.
She
asked to have her legs pulled straight and to have water thrown over her.
A
me
she was turned over, and died very quietly almost
over
;"
few minutes before she died she
The
immediately.
fit
lasted about
clenched, the feet contracted,
tion the heart
The third
an hour.
said,
"Turn
The hands were
and on a post-mortem examina-
was found empty.
case
was that of Mrs. Dove, who
was poisoned
;
Case of R. v. Palmer. at Leeds
by her husband
which he was afterwards hanged) She had five attacks on the Monday
in February,
1856.
Wednesday,
Thursday,
(for
and Saturday of the week She had prickings in the legs and
Friday,
beginning February 24th. twitchings in the hands.
arms and
1 1 j
legs before the
She asked her husband spasms came
to
but when they were
on,
strong she could not bear her legs to be touched.
two hours and a
attack in her case lasted
were semi-bent, the
congested, the spinal cord
being opened
first,
was
paralytic
patient of Mr.
found him stiffened ;
made
out,
part of
heart.
Moore's.
He
every
in
of
a
took an over dose of
he was screaming and
His head was drawn
limb.
" frequently requesting that
should turn him, move him, rub him." back.
The head
and ia about three quarters of an hour Mr. Moore
strychnia,
back
congested.
which the patient recovered was that
in
case
much
fatal
The lungs were
good deal of blood flowed
a
which might flow from the
The
also
The
The hands
half.
strongly arched.
feet
rub her
He
we
His spine was drawn
snapped at a spoon with which an attempt was medicine, and was
to administer
perfectly
conscious
during the whole time. Dr.
and
Taylor
They found no liver,
Dr.
Owen Eees examined
Cook's body.
but they found antimony in the
strychnia,
the left kidney, the spleen, and also in the blood.
The case for the prosecution upon this evidence was, that the symptoms were those of tetanus, and of tetanus produced The case for the prisoner was, first, that several by strychnia. of the symptoms observed were inconsistent with strychnia and secondly, that all of them might be explained on other hypotheses.
Their evidence was given ia part by their
witnesses, and in part
examination.
founded
partly
given by
way
obtained
from
examination.
The on
Crown in crosssuggested by the Crown were
by the witnesses
replies
the
evidence
of anticipation,
the
own
witnesses
of
for the
their
own
witnesses
and partly by the evidence for
the
prisoner
on
cross-
112
Case of R. The
first
Palmer.
v.
and most conspicuous
prisoner was, that
the fact that no strychnia was
by Dr. Taylor and Dr. Eees was that any had been administered. Taylor's evidence
argument on behalf of the
upon
this
inconsistent with the theory
The material part of Dr. point was, that he had examined
the stomach and intestines of Cook for a strychnia
among
the stomach were
variety of poisons,
The contents of
without success.
others,
discovered
gone, though the contents of the intestines
remained, and the stomach itself had been cut open from end to
and turned inside
end,
which poison,
would have been found was rubbing
if present,
against the surface of the
This Dr.
intestines.
most unfavourable condition
sidered a poison,
and the mucous surface on
out,
for
the
and Mr. Christison agreed with him. witnesses,
prisoner's
on
Letheby, and Mr. Eogers,
the
—Mr.
contrary
—thought that
it
Taylor condiscovery of
Several of the
Nunneley,
Dr.
would only increase
thedif&culty of the operation, and not destroy
chance of
its
success.
Apart from the
way
discover
mode
this Dr. Taylor expressed his opinion that
in which strychnia acts,
even
it
if
of testing
it
might be impossible to
the circumstances were favourable.
its
presence in the stomach
stomach in various ways, until at
from
last
to
is
a residue
is
The
treat the
obtained
which, upon the application of certain chemical ingredients,
changes
its
colour
if
strychnia
is
present.
agreed that strychnia acts by absorption
up from the stomach by the
All the witnesses
—that
is, it is
absorbents, thence
it
taken
passes into
the blood, thence into the solid part of the body, and at some stage
of
its
nerves and muscles. it
a
has
left
stomach
noxious
From
by
effects
its
action
on the
do not begin tiU
this Dr. Taylor argued that if
dose were administered, none would be
at the
left in
the
time of death, and therefore none could be
discovered there. the blood
Its
the stomach.
minimum
death
causes
progress
before
He
also said that if the strychnia got into
examination,
it
would be diffused over the
whole mass, and so no more than an extremely minute portion
Case of R.
v.
Palmer.
would be present in any given quantity.
i
If the dose
were
half a grain, and there were twenty-five pounds of blood in the
body, each pound of blood would contain only one-fiftieth of a grain.
He was
also of opinion that the strychnia undergoes
some chemical change by small quantities short, the
the
in
of
result
would be it
tissues
it
was not in the stomach, there was no
fallacious,
He
In
detected.
a
if
minimum
was uncertain whether strychnia
present in the stomach after
be found at alL
presence in
its
be
cannot
evidence was, that
his
dose were administered,
reason of which
and that
death,
certainty that
it
if
could
added that he considered the colour
tests
might be produced by other
because the colours
substances.
Dr. Taylor further detailed some experiments which he had tried
upon animals
jointly with Dr. Eees, for the purpose
ascertaining whether strychnia could always be detected.
of
He
poisoned four rabbits with strychnia, and applied the tests for strychnia to their bodies.
been administered at
In one
intervals,
case,
where two grains had
he obtained proof of the presence
by a bitter taste and by the colour. In a case where one grain was administered, he obtained the taste but not the colour. In the other two cases, where he administered one grain and half a grain respectively, he obtained of strychnia both
no indications at
all
of the
presence
These
of strychnia.
experiments proved to demonstration that the fact that
lie,
did
prove that no strychnia was
not discover strychnia did not present in Cook's body.
Mr. Nunneley,
Mr. Herapath,
Mr. Eogers,
Dr.
Letheby
and Mr. Wrightson contradicted Dr. Taylor and Dr. Eees They denied the theory upon this part of their evidence. that strychniae undergoes any change in the blood, and they professed their
own
ability
to discover
its
presence even in
most minute quantities in any body into which introduced, and their belief that factory.
it
had been
the colour tests were satis-
Mr. Herapath said that he had found strychnine in
the blood and in a small part of the liver of a dog poisoned I
^3
Case of R.
114 by it
;
and he
Palmer.
v.
also said that lie could detect the fifty-thousandth
part of a grain
if it
were unmixed with organic matter.
Mr.
Wrightson (who was highly complimented by Lord Campbell for the
way
in which he gave his evidence) also said that
should expect to find strychnia
had found
were present, and that he
if it
in the tissues of an animal poisoned
it
he
by
it.
Here, no doubt^ there was a considerable conflict of evidence
upon a point on which persons
to
was very
it
have
pretend to
for unscientific
difficult
The
any opinion.
evidence
given for the prisoner however tended to prove not so that there
was no strychnia in Cook's body,
ought to have found less to
as that Dr. Taylor
In other words,
there was.
it if
much it
had
do with the guilt or innocence of the prisoner, than
with the
question whether Mr. Nunneley and Mr. Herapath
were or were not better analytical chemists than Dr. Taylor.
The evidence
could not even
be considered to shake
Taylor's credit, for no part of the case rested on his
except the discovery of the antimony, as to corroborated by
the
Mr.
Brande, and
Cook's symptoms was shared by of the highest eminence,
peached. difficulty
The by
this
rebutting
as
;
the natuare of
were placed in a curious
They had
to attack
credit vigorously for the purpose
conclusion
poisoned by strychnine
to
was altogether unim-
state of the question.
his
which he was
other medical witnesses
credit
prisoner's counsel
and did attack Dr. Taylor's of
many
whose
evidence
was not contradicted by
His opinion
witnesses.
prisoner's
Dr.
that
Cook
might
yet they had also
have been
to maintain his
credit as a skilful analytical chemist, for if they destroyed
the fact that he did not find strychnine went for nothing.
dilemma was client's all
fatal.
guilt.
their
admit his
own skill
To admit
To deny evidence.
it
was
his
was
to
This
admit their '
to destroy the value of nearly
The only
and deny his good
less for the reason just
skill
it,
possible
faith,
course was
to
but this too was use-
mentioned.
Another argument used on behalf of the prisoner was that some of the symptoms of Cook's death were inconsistent with
Case of R. poisoning by strychnine.
v.
Palmer.
Mr. Nuniieley
115 and Dr. Letheby
thought that the facts that
Cook sat up in Bed when the attack came on, that he moved his hands, and swallowed, and asked to be rubbed and moved, showed more power of voluntary motion than was consistent with poisoning by strychnia. But Mrs. Serjeantson Smyth got out of bed and rang the bell, and both
she, Mrs.
Dove, and Mr. Moore's patient begged to
be rubbed and moved before the spasms came
movements were before the paroxysm paroxysm ended his life. Mr. Nunneley referred
the
to
set
in,
that
fact
on.
Cook's
and the
the
heart
first
was
empty, and said that, in his experiments, he always found that the right side of the heart of the poisoned animals was full.
Both in Mrs. Smyth's Senet, the heart
case,
however, and in that of the
was found empty
and in Mrs. Smyth's case
;
the chest and abdomen were opened
was not emptied by the opening said that if a
man
girl
so
first,
of the head.
that the heart
Mr. Christison
died of spasms of the heart, the heart would
be emptied by them, and would be found empty after death, so that the presence or absence of the blood proved nothing.
Mr. Nunneley and Dr. Letheby of time before the
symptoms appeared,
of
measured.
paroxysm was not accurately
the pills and the It
as inconsistent with
The time between the adminis-
poisoning by strychnine. tration
also referred to the length
might have been an hour, or a
more
;
pills,
which would not begin
but the poison,
present at
if
all,
to operate
little less,
or
was administered in till
they were broken
and the rapidity with which they would be broken up would depend upon the materials of which they were made up,
Mr. Christison said that
if
the
pOls
were made up with
resinous materials, such as are within the knowledge of every
medical man, their operation would be delayed. " I
do not think
"precise
time
we can
fix,
He
added,
with our present knowledge, the
for the poison
beginning to operate."
Ac-
cording to the account of one witness in Agnes French's case,
1
16
Case of R. the poison did not operate
v.
Palmer. an
three quarters of
for
though probably her recollection of the time was not
hour, very-
Dr. Taylor also referred (in cross-
accurate after ten years.
examination) to cases in which an hour and a half, or even
two hours
elapsed, before the
These were the principal
symptoms showed themselves. points in Cook's symptoms said
to be inconsistent with the administration of strychnia.
of
them appear
to
have been
All
Indeed,
satisfactorily answered.
the inconsistency of the symptoms with strychnia was faintly
The defence turned rather on the
maintained.
possibility of
showing that they were consistent with some other
In order made.
to
make
out this point various suggestions were
In the cross-examination of the
the Crown,
it
diEferent witnesses for
was frequently suggested that the case was. one
of traumatic tetanus, caused there were
disease.
three
by
syphilitic sores
In the
fatal objections.
were no syphilitic sores
first
;
but to this place, there
in the second place, no witness for
;
the prisoner said that he thought that
it
was a case
of trau-
matic tetanus; and in the third place, several doctors of great experience
physician
in to
respect
the
of
syphilis
— especially
—declared
Lock Hospital
Dr.
Lee, the
that they never
Two witnesses man died of teta-
heard of syphilitic sores producing tetanus. for the prisoner
were called to show that a
nus who had sores on his elbow and elsewhere, which were possibly syphilitic
;
but
it
did not
appear whether he had
rubbed or hurt them, and Cook had no symptoms of the
sort.
Another theory was that the death was caused by general convulsions.
This was advanced by Mr. Nunneley
was unable
mention any case in which general convulsions
to
had produced death without destroying consciousness.
;
but he
He
said
vaguely he had heard of such cases, but had never met with one.
Dr. McDonald, of Garnkirk, near Glasgow, said that
he considered the case to be one of " epileptic convulsions with tetanic complications."
But he
also
failed to
mention
an instance in which epilepsy did not destroy consciousness. This witness assigned the most extraordinary reasons for sup-
7
Case of R. posing that that the
1
He
case of this form of epilepsy.
man was
though the ;
Palmer. said
might have been caused by sexual excitement,
fit
his death
was a
it
V.
and that
sexual intercourse
at
ill
Eugeley
was within the range of
it
week
for nearly a
before
possibility that
might produce a convulsion
after
fit
an
interval of a fortnight.
Both Mr. Nunneley and Dr. McDonald were cross-examined
Each
with great closeness. through point
strychnia,
how they
from those
differed
from anything
arise
Mr. Nunneley was forced "
paroxysm were
of the
separately
of
poisoning
by
and what were the reasons why they should be
supposed to trouble,
them was taken
the various syniptoms of the case, and asked to
all
out
of
After a great deal of
else.
to
admit that the symptoms
very like " those of strychnia, and that
the various predisposing causes which he mentioned as likely to produce convulsions could not be
He
have
existed.
but the only excitement
convulsions;
to
to
excitement and depression of spirits
said, for instance, that
might predispose
shown
under which Cook had laboured was on winning the race a
week
before
and
;
as
depression of
for
spirits,
he was laugh-
ing and joking with Mr. Jones a few hours before his death. Dr.
McDonald was
equally
explanation
of these
abridgment
to
It
difficulties.
convey
the
cares
full
give
is
impossible
which
to
satisfactory
by
these
any
cross-
be carefully studied
understand the
to
a
to
effect
They deserve
examinations produced.
by any one who
unable
full
effect
of this
the manifestation not merely of truth,
great instrument for
but of accuracy and fairness.
Of the other witnesses mitted that he had
for the prisoner,
said
that he
Mr. Herapath ad-
thought
that
there
strychnine in the body, but that Dr. Taylor did not know to find
it.
He
paper reports
;
he was
of
how
added that he got his impression from newsbut
it
did not appear that they differed from
the evidence given at the
symptoms
was
Cook were
acquainted
trial.
Dr. Letheby
irreconcilable
with
—strychnia
said
that
the
with everything that poison included.
He
1
;
ii8
Case of R.v. Palmer. admitted, however, that they were not inconsistent with what
he had heard of the symptoms
of Mrs. Serjeantson
who was undoubtedly
by
was
tridge
called
to
poisoned
cord caused
might be one of
case
one of the membranes of the
arachnitis, or inflammation of
spinal
Mr. Par-
strychnine.
show that the
Smyth
by two granules discovered
In
there.
cross-examination he instantly admitted, with perfect frankness, that
he did not think the case was one of arachnitis, as
the symptoms were not the same.
Moreover, on being asked
whether the symptoms described by Mr. Jones were consistent with poisoning by strychnia, he
said, "
Quite
cluded by saying that in the whole course
and he con-
;"
of his
experience
and knowledge he had never seen such a death proceed from natural to
Dr.
causes.
show that
Eobinson, from Newcastle,
tetanic convulsions
the cause of death.
preceded
was
called
by epilepsy were
He, however, expregsly admitted in cross-
examination that the symptoms were consistent with strychnia,
and that some
of
them were
inconsistent with
absence of any other cause,
said that in the
if
the hypothesis of strychnia," he would ascribe
He
epilepsy.
he
"
it to
put aside epilepsy
and that he thought the granules in the spinal cord might
The degree
have produced epilepsy.
by
to these granules
the witnesses for the
The
different
of importance attached
witnesses
Several of
varied.
Crown considered them unimportant.
last of the prisoner's witnesses
was Dr. Eichardson, who
said the disease might have been angina pectoris.
He
said,
however, that the symptoms of angina pectoris were so like those of strychnine that distinguishing
The
them from each
fact that
all
it
the
be denied that
symptoms
could have administered result of
in
other.
its
dis-
administration would
of sickness, &c.,
during the week before Cook's death.
The general
difficulty
antimony was found was never seriously
puted, nor could
account for
he should have great
No
which occurred
one but the prisoner
it.
the
whole
evidence
on both
sides
appears to be to prove beyond aU reasonable doubt that the
Case of R.
Palmer.
v.
symptoms of Cook's death were those of poisoning
by
strychnine,
119
perfectly
consistent with
and that there was strong
reason to believe that they were inconsistent with any other
Coupling this with the
cause.
strychnia just before each
robbed Cook of
all his
proof that
two
of the
property,
Palmer bought
attacks,
and that he
impossible to doubt the
it is
propriety of the verdict.
Palmer's case
is
remarkable on account of the extraordinary Remarks
minuteness and labour with which of the extreme ability with
both
was
it
which the
tried,
trial
and on account
was conducted on
sides.
The
intricate
of facts
set
which show that Palmer had a
strong motive to commit the crime
when
at the time
been committed
;
his behaviour before
it,
was being committed, and after it had the various considerations which showed it
;
Cook must have died by tetanus produced by strychnine that Palmer had the means of administering strychnine to him; that he did actually administer what in all probability was that
;
strychnine casions
;
that he also administered antimony on
and that
;
all
the different
theories
many
oc-
by which Cook's
death otherwise than by strychnine could be accounted for
were open
to fatal
ten different sets
form a collection of eight or
objections,
of
facts,
all
connected together immedi-
ately or remotely either as being, or as being
shown not
to be,
the causes or the effects of Cook's murder, or as forming part of the actual murder
The
scientific
itself.
evidence
but particularly because tration
of the
scientific
identity
research,
is
it
remarkable on various grounds,
supplies a singularly perfect illus-
between the ordinary processes
of
above
as
Take
for
and the priuciples
explained
being those on which Judicial Evidence proceeds. instance the question. or idiopathic first
?
Did Cook
die of tetanus, either traumatic
The symptoms
of those
diseases
are in the
place ascertained inductively, and their nature was proved
by the testimony
of Sir
Benjamin Brodie and
others.
course of the sjonptoms being compared with those
The
of Cook,
Paimer's '^'^^^
—
I20
Case of R.v. Palmer. The inference hy deduction was that
they did not correspond. Cook's death was
caused by those
not
diseases.
Logically
of traumatic or of
idiopathic
the matter might be stated thus
who
All persons
die
either
:
tetanus exhibit a certain course of symptoms.
Cook did not Cook did not
may
course
that
of
symptoms, therefore
die of traumatic or of idiopathic tetanus.
Every one case
exhibit
arguments and theories stated in the
of the
easily be
shown by a
attention to be so
little
many
on the one hand, and of
illustrations of the rules of evidence
the rules of induction and deduction on the other.
On
the other hand, a flood of irrelevant matter apparently
connected with the
and
to speak, for admittance,
trial pressed, so
had been admitted, would have swollen the
if it
unmanageable proportions, and thrown no
main
Palmer was actually indicted
question.
Ann
of his wife,
upon the
for the
murder
Palmer, and for the murder of his brother,
Every
Walter Palmer.
what he had
real light
trial to
done.
It
sort of story
was
was
in circulation as to
said that twelve or fourteen per-
sons had at different times been buried from his house under suspicious
circumstances.
It
was
had poisoned
said that he
Lord George Bentinck, who died very suddenly some years
He had
before. bills of
certainly forged his
mother's acceptance to
exchange, and had carried on a series of gross frauds
on insurance
offices.
There was the strongest reason to suspect
the evidence of Jeremiah Smith, referred to in the case
that
was plotted and
artful perjury.
If
Palmer had been
tried in
Erance, every one of these and ianumerable other topics would
have been introduced, and the real matter in dispute would not have been nearly so fully discussed.
No
case
practical
Act
is
One
sets
in a clearer
working of
light
the principles
theory or the
either the
on which the Evidence
based. special
matter on which Palmer's
trial
light is the nature of the evidence of experts.
relating to this subject are
throws great
The provisions
contained in Sections 45 and 46
Case of R. v. Palmer. of the Evidence Act.
The only point
connection with them
is
their evidence is given
occurred, but that
it
that
121
much importance
of
should be borne in mind that
it
on the assumption that certain
does not in
in
common
cases
facts
show whether
or
not the facts on which the expert gives his opinion did really '
occur.
For instance, Sir Benjamin Brodie and other witnesses
in Palmer's case said that the cribed were the
symptoms
symptoms they had heard
of poisoning
des-
by strychmne, but
whether the maid-servants and others who witnessed and des-
was speaking, an
cribed Cook's death were or were not speaking the truth
not a question for them, but for the jury. expert ought not to be asked, "
man
died of poison?"
He
Strictly
Do you think
that the deceased
ought to be asked to what cause
he would attribute the death of the deceased man, assuming
symptoms attending his death to have been correctly described ? or whether any cause except poison would account This, however, is a for such and such specified symptoms ? the
matter of form.
The substance
of the rules
that they are only witnesses, not judges
however important,
upon which fact
is
opinions
experts
is
that their evidence,
intended to be used only as materials
others are to form their decision
which they have
certain
;
as to
to prove
is
;
and that the
the fact that they entertain
on certain grounds, and not the
grounds for their opinions do really
exist.
fact
that
—
—
122
iKEBLEVAlirT FACTS.
Having thus vancy,
will be desirable to say something of irrelevant facts
it
which might
From
effect
at first sight be
the' explanations
chapter
shown
described and illustrated the theory of rele-
it
supposed to be relevant.
given in the
follows that facts are irrelevant unless they can be
to stand ia the relation of cause to
part of the
earlier
in issue, every step
facts
either proved or
of such
or in the relation of
connection beiug
in the
a nature that
may
it
be presumed
without proof. What
The
facts
vast majority
being
*^^^
any assignable
in
^ajit"^"^^^^"
For instance, in
a
great
of ordinary facts
at
city
moment
the
manner
on in the immediate neighbourhood
them
connected with the crime. present
with
Facts ap-
Enl
1-
transactions ;
are
going
but no one would think
some way
unless they were in
The only
difficulty arises in dealing
which are apparently relevant but are not really
The most important
so.
together.
Facts obviously irrelevant therefore
little difficulty.
facts
connected
of the commission of a crime
numberless other
of giving evidence of
simply coexist with-
of these are three
Statements as to facts
:
made by persons not
called as
Witnesses. 2.
Transactions similar to but unconnected with the facts
in issue. 3.
Opinions formed by persons as to the facts in issue or
relevant facts.
None
of these are relevant within the definition of relevancy
given iu Sections 6
argued that the Section 11
is
—
both inclusive.
11,
effect of the
as follows
It
may
possibly be
second paragraph of Section 11
*
:
Facts not otherwise relevant are relevant. (1)
If they are inconsistent with any fact in issue or relevant
fact.
Irrelevant Facts.
would be to admit proof of such instance, be
said
declare that he
A
:
had seen
B
higlily probable that
facts as these.
B commit
12
XJ. (Sections
which
— 39)
regarded
are
as to
sort of facts facts
which
made
or
was designedly
left in
the
them with The evidence can be got. to include
imply more or
are
distinctly
less
Some
the existence of the facts sought to be proved. latitude
because
invest
which the section was intended either exclude
Chapter
of statements,
either
facts
circumstances under which they are importance, or because no better
elaborate
part of the
particular classes
relevant
as
it
This was
(2).
shown by the
is
following
contained in the
for
Therefore A's
declaration is a relevant fact under Section 11
provisions
may,
This makes
a crime.
did commit that crime.
not the intention of the section, as
It
a witness) was heard to
called as
(not
123
degree of
the wording of the section (in
compliance with a suggestion from the Madras Government)
on account of the variety
The meaning expressed it
:— " No
if
of
the
words
of matters to
section
which
it
might apply.
would have been more
to the following effect
fully
had been added
to
statement shall be regarded as rendering the matter
stated
highly probable
unless
it
is
within the meaning of this section
declared to be a relevant fact under some other
section of this Act."
The reasons why statements
as to facts
made by persons
not called as witnesses are excluded, except in certain specified cases (see Sections 17
matter
of
common
conversation are
—
39), are various.
experience
made
that
so lightly,
In the
first
statements
and are so
place
in
liable to
it is
common be mis-
understood or misrepresented, that they cannot be depended
upon
for
any important purpose unless they are made under
special circumstances.
(2)
If by themselves, or in connection -with other facts, they
the existence
or non-existence
highly probable or improbable.
of any fact
make
in issue or relevant fact
Reason
for
of hearsay,
124
Irrelevant Facts. It
Objection.
may
be said that this
an objection to the weight of
is
such statements and not to their relevancy, and there
No
degree of truth in this remark.
doubt,
when
inquire into facts of which he receives in the
to
very confused accounts,
may and
it
a
some
man
first
often will be
is
has
instance
extremely
important for him to trace the most cursory and apparently report.
futile
facts
in issue
And facts relevant in the highest degree may often be discovered in this manner.
policeman or a lawyer engaged in getting up or
would neglect
civil,
to
^
a case, criminal
his duty altogether if he shut his ears
which was not relevant within the meaning of
to everything
A judge or
the Evidence Act.
magistrate in India frequently
has to perform duties which in England would be performed
by
He
police officers or attorneys.
has to
he can, and with
for himself as well
as
professional kind.
Section 165
is
out the truth
sift
little
assistance of a
intended to arm the judge
with the most extensive power possible for the purpose of Effect of section IDS.
getting at
order to
the
The
truth.
effect of this
section,*
get to the bottom of the matter before
and inquire into every
wiU. be able to look at It will not,
however, be
able to
found
its
it
is
that in
the court
fact whatever.
judgment upon
the class of statements in question, for the following reasons. If this were permitted
it
would present a great temptation
to indolent judges to be satisfied with second-hand reports. It
would
make
open
a
wide
door
to
fraud.
People
statements for which they would be in
sponsible,
and the
fact
that
these
statements
would
no way were
re-
made
would be proved by witnesses who knew nothing of the Every one would thus be at the mercy of matter stated. people
who might
choose to
tell
a
lie,
and whose evidence
could neither be tested nor contradicted. * Section 165 "
is
aa follows
The judge may
:
in order to
" relevant facts ask any question
discover or obtain proper proof of lie
pleases in any form, at any time,
" of any witness, or of the parties about any fact relevant or irrele" vant,
and may order the production of any document or thing."
Irrelevant
D
Suppose that A, B, C, and detailed
by
Z.
A,
B,
Facts.
125
G
give to E, F, and
a minute
account of a crime which they say was committed E, F,
C,
and
and
D
what they have heard
G- repeat
disappear or are
correctly.
not forthcoming.
evident that
Z would
in this case,
and that the court would be unable
It
is
be altogether unable to defend himself
The only way
statements of A, B, C, and D.
to test the
avoid this
to
exclude such evidence altogether, and so to put upon both
is to
judges and magistrates as strong, a pressure as possible to get to the It
trace
bottom of the matter before them.
would waste an incalculable amount of time. To try to unauthorized and irresponsible gossip, and to discover
may
the grains of truth which
lurk in
like trying to
is
it
trace a fish in the water.
The exclusion
of evidence as to transactions similar to, but
not specifically connected with the facts in issue, rests upon
the ground that or
civil life
were not enforced every
if it
criminal,
many
whether
"j.^'J'g,
''c'ions.
might run into an inquiry into the whole Litigants have
and character of the parties concerned.
frequently
trial,
Uncon-
matters
in
difference
point legally at issue between them, and
good deal of vigour
to prevent
justice into theatres in
which
the
besides it
often requires a
them from turning
all their affairs
may
courts
of
be discussed.
A
very slight acquaintance with French procedure
to
show the
evils of
precise
is
enough
not keeping people close to the point in
judicial proceedings.
As sion
to evidence of opinion,
would in nearly
The concluding
it is
all cases
excluded because
its
admis-
be mere waste of time.
part of the. chapter on the relevancy of facts
enumerates the exceptions which are to be made to the general rules as to irrelevancy.
The
rules as to admissions, statements
made by persons who ments made under circumstances which
cannot be called as witnesses,
a guarantee for their truth,
are an
and
in themselves
exception
to
the
state-
afford
exclu-
sion of statements as proof of the matter stated.
Judgments in courts
of justice
on other occasions form an
Exclusion
dence of °p™'°"tions to
^relevancy
126
Admission of Statements. exception
the
to
exclusion
with facts in
specifically connected
as to the
of transactions not
of evidence issue,
and the provisions
admission of evidence of opinions in certain cases
45
are contained in Sections
—
I will notice very shortly
55.
the principle on which these provisions proceed. Admissions.
The general rule with regard to admissions, which are defined to mean aU that the parties or their representatives in 1.
certain degrees say about the matter in dispute, or facts rele-
vant thereto,
may
that they
is
who made them, but not
A
If
rule is obvious.
be proved as against those
The reason
in their favour.
says,
''
B owes me
of the
money," the mere fact
that he says so does not even tend to prove the debt.
any value
statenient has fact
which
B
having lent testify,
beyond
lies
;
must be derived from some
for instance, A's recollection of his
To that
the money.
If,
on the other hand,
owe me anything," Confes-
it
all, it
fact,
of course,
A
can
but his subsequent assertions add nothing to what he
has to say.
use,
at
If the
this
is
A
a fact of
had
said, "
which
and which might be decisive of the
B
B
does not
might make
case.
Admissions in reference to crimes are usually called con-
sions.
fessions.
I
may
observe upon the provisions relating to
them
that Sections 25, 26, and 27 were transferred to the Evidence
verbatim from the
1861.
They
differ
inserted in the torture
by the
Code of Criminal Procedure, Act xxv. of widely from the law of England, and were
Act of 1861 in order
to prevent the practice of
police for the purpose of extracting confessions
from persons in their custody. State-
Statements made by
persons
who
are dead
or otherwise
ments by witnesses can-
who
not be called.
State-
ments under special
circumstances.
incapacitated from being called as witnesses are admitted in
the cases mentioned in Sections 32
and
33.
The reason
is
that in the cases in question no better evidence is to be had.
In certain cases statements are made under circumstances
which in themselves are a strong reason be true, and in these cases there calling the person
by
whom
sections whi(>h relate to
them
is
for believing
generally
them
little
use in
the statement was made. are
34
— 38.
to
The
yudgments. Opinions, Character. It
may be
well to point out here the manner in whiph the
Act
Evidence
the proof
affects
was
evidence
of
depends
given,
For instance,
principles of relevancy.
partly if
by
given
evidence
The relevancy
witness in a court of justice.
such
127
a
of the fact that
on
the
general
a witness were accused
of giving false testimony, the fact that he gave the testimony
alleged to be false
would be a
fact
But the Act
in issue.
also
provides for cases in which the fact that evidence was given
on a
different occasion is to
be admissible, either to prove the
matter stated (Section 33), or in order to contradict (Sections or in order to corroborate (Section
155, 3)
By
reference to these Sections
must be ascertained whether
it
the fact that the evidence was given relevant,
enacts that an
Section 35
made by any
If
relevant.
is
entry of
is
a record
in
it
it
public servant in the discharge of his duty shall
be relevant as a mode of proving
Procedure
Criminal
157) the witness.
direct
it.
The Codes
judicial
all
records of the evidence given before
of Civil
officers
to
and
make
them; and -Section 80 of
the Evidence Act provides that a document purporting to be
a record of evidence shall be presumed to be genuine, that statements
taken
made
shall
as to the circumstances under
be presumed
have been duly taken. gether sions
is
is
that
The
when proof
admissible,
it
to
may
be
true,
and
which
it
was
the evidence
to
result of these sections taken to-
of evidence given on previous occa-
be proved by the production of the
record or a certified copy (see Section 76).
The
sections as to
judgments
designedly omit to
(40, 41)
deal with the question of the effect of judgments in preventing further proceedings in regard of the same matter.
upon
this subject is
Civil Procedure,
and in Section
The
Procedure. are cases in
to be found in Section 2 of the
cases
of
the fact
is
of
Code of
460 the Code of Criminal
which the judgment of a court
The opinions
"g^'J^'^'
The law
which the Evidence Act provides
a law, and creates the right which
judgments
it
is
for
in the nature of
affirms to exist.
any persons, other than the judge by
whom
to be decided, as to the existence of facts in issue or
Opinions,
128
Characters. relevant cases to
facts are, as a
which they
rule, irrelevant to
the decision of the
the most obvious reasons.
relate, for
To
show that such and such a person thought that a crime had been committed or a contract made would either be to show nothing at
all,
or it
would invest the person whose opinion
was proved with the character of a judge. the reasons for which are self-evident, it are specified in Sections
The
Character when miportant.
—
is
is,
generally
51.
only
speaking,
(1)
In
Where conduct
this case
is
the owner.
highly
man
it
may
might
raise in the absence of
found in possession of stolen goods.
is
them and took charge
If he
is
explain conduct and
a
man
of
them
to give
of very high character
them this
be believed.
(2)
When
witness,
A
A
says he found
may
is
presumably criminal
equivocal, or even
evidence of character
such evidence.
to
it
:—
rebut the presumptions which
He
Evidence
makeweight,
a
though there are two classes of cases in which important
cases,
They
otherwise.
sections as to character require little remark.
character
of
45
In some few
man
whom
a charge rests on the direct testimony of a single
and on the bare denial of is
it
by
the person charged.
accused of an indecent assault by a
he was accidentally
left
alone.
He
woman with
denies
it.
Here a
high character for morality on the part of the accused person
would be of great importance.
—
129.
CHAPTEE
IV.
GENERAL OBSERVATIONS ON THE INDIAN EVIDENCE
ACT.
M the preceding pages I have stated and illustrated the theory of iudicial evidence ''
have but for
little
No
itself.
complete
to
and
on which the Evidence Act
add
to
As the
distinct.
feated
body
by
of
The Act. speaks make its provisions
law upon the
to
repeals
section
first
unwritten rules of evidence, and as distinct
which
If
it
it is
was meant
to ence't*^'" English
all
would be de-
subject, its object
elaborate references to English cases.
critics.
^°
the Act itself supplies a
In so
far as it is
obscure or incomplete, the judges and the Legislature are
proper
I
that explanation.
was spared
labour
based.
is
Chap. v.
its
turned iato an abridgment of the law
to replace, it will be injurious instead
being useful to those for
whom
it
of
was intended.
I shall accordingly content myself with a verj' short description of the contents of the remainder of the Act, referring for
a full explanation of the matter to the Act itself
The general scheme of Part
II.,
which
relates to
Proof and
consists of four chapters, containing forty-five sections,
expressed iu the following propositions
may
be
:
Certain facts are so notorious in themselves, or are stated
1.
Scheme Part II.
Judicial notice.
in so authentic a
manner
cations, that they require
know
them,
no
proof.
The
court, if it does not
can inform itseK upon them without formally
These
taking evidence. 2.
in well-known and accessible publi-
facts are said to
be judicially noticed.
All facts except the contents of documents
may be •>
by it
oral evidence,
must
which must in aU cases be
consist of a declaration
ceived by his
own
direct.
'
That
testifies.
9'"'^'
^^''"
dence. is,
by the witness that he per-
senses the fact to which he
K
proved
of
I30 Chap. IV, Documents.
Documentary Evidence. The contents of documents must be proved either by the production of the document, which is called primary 3.
evidence, or
copies or oral accounts of the contents, which
by
Primary evidence
are called secondary evidence. as a rule, but this
is
is
required
subject to seven important exceptiojls in
which secondary evidence may be given. of these are
cases in
(1)
The most important which the document is in the posses-
sion of the adverse party,
in which case
the adverse party
must in general (though there are several exceptions) have notice to produce the it
document before secondary evidence of
can be given.
And
(2) cases
in which certified copies of public documents
are admissible in place of the documents themselves.
Many
4.
documents which are defined in the
classes of
are presumed to be
what they purport
sumption
be rebutted.
is liable to
Two
be,
but this pre-
sets of
presumptions
to
apply to the same document.
will sometimes
For instance
what purports
to
produced.
must by Section 76 be presumed
It
be a
accurate copy of the
certified
act,
copy of a record of evidence
By
record of evidence.
facts stated in the record itself as to
to
is
be an
Section 80 the
the circumstances under
was taken, e.g., that it was read OA'er to the witness in a language which he understood, must be presumed to be
which
it
true. 5.
Writings
when
exclusive evidence.
is
When
a contract, grant, or other disposition of property
reduced to writing, the writing
of its contents)
is
not only the best but
evidence of the matter which
by
itself (or
it
is
contains.
secondary evidence the only admissible It cannot be varied
oral evidence, except in certain specified cases. It
is
applying these general doctrines
necessary in
expediency of which siderable
detail,
qualifications
they really
and
is
to
obvious) to
introduce provisos,
which appear more
are.
If,
practice to go into
intricate
exceptions,
and
difficult
(the
con-
and than
however, the propositions just stated are
once distinctly understood and borne in mind, the details will
be
easily
mastered
when
the
occasion
for
applying them
Presufnptions.
The provisions in the Act
arises.
131
are all
made
in Order to meet
Chap. iv.
which arose iu practice in England, and which must of necessity arise over and over again, and give occasion real difficulties
to litigation unless they
were
specifically provided for before'
hand.
One
single
runs
principle
through
documentary evidence.
relating to
the
propositions
Principle
It is that the very object
sfons^n'"
all
for
"^ocumen-
is
dence.
which writing is used is to perpetuate the memory of what written down, and so to furnish permanent proof of it. In
order that full effect
may
be
given to
document
necessary, namely, that the
this,
two things are
should whenever
itself
it is
possible be put before the judge for his inspection,
that
if it
purports to be a final settlement of a previous nego-
tiation, as in the case of
as
final,
first
and
and
a written contract,
shall not be
by word
varied
it
shall be treated
of mouth.
If the
of these rules were not observed the benefit of writing
would be unless
lost.
There
writing
the
is
is
read
observed people would settled, as
no use in writing a thing down
never
second
the
If
know when
they would be able to play
fast
rule
were not
a question
was
and loose with
their
M'ritings.
By
bearing these leading principles in miud the details and
exceptions
wiU become
Their practical importance
simple.
is
indeed as nothing in comparison to the importance of the rules
which they
The
qualify.
third part of the Act,
(Chapters
VII.,
VIII.,
relates to the production
which contains three chapters
and IX.) and
and sixty-seven
sections,
effect of evidence.
Chapter VII., which relates to the burden of proof, deals Presumpwith a subject which requires a the subject of presumptions.
little
explanation.
This
''°°^'
is
Like most other words intro-
duced into the law of evidence, it has various meanings, and it has besides a history to which ItshaH refer very shortly.
In times when the true theory of proof' was very imperfectly understood, inasmuch as physical science, by the progress
which that theoiy was gradually discovered, was in its infancy, numerous attempts were made to construct theories of
—
132 Chap. IV.
Presumptions. which should supply the wantof
as to the weight of evidence
In some cases this was effected
one founded on observation.
by requiring the testimony of a in
particular
cases;
such
witnesses, such another
a
by
particular items of evidence
number
certain
fact
must be proved
and so
four,
of witnesses
by two'
In other cases
on.
were regarded as
half
full proof,
proof less than half fuU, and proof more than half
full proof, full.
The doctrine of presumptions was
closely -connected with
Presumptions were inferences which the judges
this theory.
were directed to draw from certain states of facts in certain cases,
and these presumptions were allowed a certain amount
of weight in the scale of proof
amounted
evidence
and so
full,
on.
to
such
proof,
full
The very
such a presumption and such
;
irregular
another
manner
in
to
which the
English law of evidence grew up has had, amongst other that
of
making
it
an uncertain and
far the theory of presumptions,
they
formed a
the result
is
part,
somewhat
affect
difficult
half
effects,
question
how
and the other theories of which
English law, but
as follows
substantially
:
Presumptions are of four kinds according to English law. Conclusive
1.
presumptions.
they occur they provide that
These
certain"
are
modes
rare,
but when
of proof shall not
be liable to contradiction.
Presumptions which
2.
affect
the ordinary rule as to the
burden of proof that he who afi&rms must prove.
He who
man is dead must usually prove it, but if the man has not been heard of for seven years,
affirms that a
he
shows, that
he
shifts the
burden of proof on his adversary.
There are certain presumptions which, though Liable to
3.
be rebutted, are regarded by English law as being something
more than mere maxims, though say is
how much
to
more.
it
Ail instance
is
of
by no means easy
to
such a presumption
be found in the rule that recent possession of stolen
goods unexplained raises a presumption that the possessor either the thief or a receiver.
is
Prestiinptions. 4.
Bare
presumptions
arguments to
of
fact,
133
which the Court attaches
but Chap.iv.
nothing
are
-whieli
whatever value
it
pleases.
Chapter VII. of the Evidence Act deals with this subject as follows
:
—First
it
lays
regulate the burden
burden
in
particular
cases,
not
by
to
the
but
the
parties
It
111).
marriage cession
cases
cause,
two
notices
presumption
the
(section
of
— lOG).
the
determined
tions,
].01
(sections
which
the
—
of proof
the general principles which
in
enumerates
107
down
from
territory
cases
and
112),
is
relation
of
(sections
presump-
conclusive
of
from
publication
during
birth
presumption
the
the
the
then
proof
of
by presumptions
legitimacy
of
It
a
of
a
of
valid
notifica-
This
tion to that effect in the Gazette, of India, (section 113). is
one
of
will be
found in
Finally,
it
inferences
parts of the
different
draw
from
of this
as to reduce to their proper position
are to be applied to facts
number
large
a greater or
by the
of presumptions to
less extent,
an
in all
whatever
it
section are such
courts in their discretion, a
which English law
legal
gives, to
Nine of the most
artificial value.
notice of certain general
may
mere maxims which
of
important of them are given by way of
AU
before
facts
The terms
thinks just.
it
the
which
and Acts.
statutes
the court
declares, in section 114, that
whatever
cases
conclusive statutory presumptions
several
illustration.
principles
which
are,
sometimes called presumptions, but which in reality belong rather to the substantive law than to the law of evidence,
was
designedly omitted, not because the truth of those principles
was
denied,
but
because
it
was
not
Evidence Act was the proper place important of these called, that
more
is
for
stated
them.
the presumption, as
in the maxim,
law does not excuse a
breach
of
it
is
that the
The most sometimes
The principle
every one knows the law.
correctly
considered
that
it,
is
far
ignorance of the
which
is
one of the
fundamental principles of criminal law.
The
subject of estoppels (Chapter VIII,.)
differs
from that
134 Chap. IV.
Estoppels. of presumptions in the circumstance that an estoppel
sonal
disqualification
stanced
laid
from proving peculiar
is
prior judgments as a
is
pleading,
propositions
two
and the
particular
English learning
causes, the peculiarities fact that
the
effect
of
by the English text writers evidence, and not as a branch of the
of
of the Act consists of a reduction to express
rules
as
to
the
which are well established and no commentary or introduction,
own meaning, and do
law and
of the
a
Civil Procedure.
The remainder
their
drawn from
is
usually treated
branch of the law of
law of
presumption
extremely intricate and technical,
but this arises principally from of English special
A
facts.
Much
whoever proves them.
connected with estoppels
a per-
upon a person peculiarly circum-
rule that particular inferences shall be facts
is
practice.
examination of witnesses, understood. as they
They caU
sufficiently
for
explain
not materially vary the existing
THE
INDIAN
EVIDENCE
ACT.
—
THE INDIAN EVIDENCE ACT,
1872.
CONTENTS. Preamble.
Paet
I.
EELEVANCY OF FACTS. Chaptek
Pjrbliminaky.
1.
Section. 1.
Short
title.
Extent.
Commencement
of Act.
2.
Eepeal of enactments.
3.
Interpretation Clause.
4.
"
May
presume."
" Shall presume." " Conclusive proof."
Chapter II.— Of the Eelevancy of Facts. 5.
Evidence
may
he given of facts in issue and relevant
facts.
forming part of same transaction.
6.
Eelevancy of
7.
Facts which are occasion, cause, or effect of facts in issue.
8.
Motive preparation and previous or subsequent conduct.
9.
Facts necessary to explain or introduce relevant
10.
Things
said
common 11.
When
12.
In
facts
or
done
by
conspirator
reference
to
design.
facts not otherwise relevant
suit for
in
facts.
become
relevant.
damages, facts tending to enable Court to
determine amount are relevant.
when
right or custom is in question.
13.
Facts relevant
14.
Facts showing existence of state of mind, or of body or bodily feeling.
—
;
;
The Indian Evidence Act, 1872.
138 Section. 15.
Facts bearing on question whether act was accidental or intentional.
16.
Existence of course of business,
when
relevant.
Admissions. 17.
Admission
18.
Admission
defined.
by party to proceeding or his agent by suitor in representative character; by party interested in subject-matter by person from whom interest derived. 19.
Admissions by persons whose position must be proved as against party to suit.
20.
Admissions by persons expressly referred to by party to suit.
21.
Proof of admissions against persons
by 22.
or
When
on their
making them, and
behalf.
oral admissions
as to contents of documents
are
relevant.
when
23.
Admissions in
24.
Confession caused by inducement, threat, or promise,
when
civil cases,
relevant.
irrelevant in criminal proceeding.
25.
Confession to police of&cer not to be proved.
26.
Confession by accused while in custody of police not to
be proved against him. 27.
How much ofinformation received
from accused
may be
proved. 28.
Confession
made
after
removal of impression caused by
inducement, threat, or promise relevant. 29.
Confession otherwise relevant not to become irrelevant
because of promise of secrecy, &c. 30.
Consideration of proved confession affecting person making
31.
it
and others jointly under
trial for
Admission not conclusive proof, but
may
some estop.
offence.
;;
;
The Indian Evidence Act,
;
;
1872..
139
Statements by Persons who cannot be called as Witnesses. Section.
Cases in which statement of relevant fact by person
32.
is
dead or cannot be found,
When
it
or
who
&c., is relevant.
relates to cause of death
is
made
in course of business
or against interest of
maker
or gives opinion as to public right
or
custom, or
matters of general interest or relates to existence of relationship or
made
is
in will or deed relating to family affairs
document relating
or in
to transaction
in section 13, clause (a)
or
is
made by
mentioned
;
and expresses
several persons,
feel-
ings relevant to matter in question. 33.
Eelevancy of certain
evidence
for
quent proceeding, the truth of
proving,
in subse-
facts therein stated.
Statements made undee Special Circumstances.
when
34.
Entries in books of account
35.
Eelevancy of entry in public record, made in perform-
relevant.
ance of duty. 36.
Eelevancy of statements in maps,
37.
Eelevancy of statement as to
charts,
and plans.
facts of public nature, con-
tained in certain Acts or notifications. 38.
Eelevancy of statements as to any law contained
in
law-books.
How much 39.
What
of a Statement
evidence to be given
is
to be proved.
when statement forms
part
of a conversation, document, book, or series of letters or papers.
The Indian Evidence Act, 1872.
140
Judgments of Coukt of Justice, when Eelevant. Section. 40.
Previous judgments relevant
bar a second
to
suit
or
trial.
41.
Eelevancy of certain judgments in probate,
&c., juris-
diction.
42.
Eelevancy and
effect
of judgments, orders,
or decrees
other than those mentioned in Section 41. 43.
Judgments,
40 44.
—
42,
&c., other
when
than those mentioned in Sections
relevant.
Fraud or collusion in obtaining judgment, or incompetency of Court,
may
be proved.
when
Opinions of Third Peksons,
relevant.
45.
Opinions of experts.
46.
Facts bearing upon opinions of experts.
47.
Opinion as to handwriting, when relevant.
48.
Opinion as to
existence
of
right
custom,
or
when
relevant.
when
49.
Opinion as to usages,
50.
Opinion on relationship, when relevant.
51.
Grounds of opinion, when
tenets, &c.,
relevant.
relevant.
Chaeactek when Eelevant. 52.
In
civil
cases,
character
to
prove
conduct imputed
irrelevant. cases, previous
good character relevant.
53.
In criminal
54.
In criminal proceeding previous conviction relevant,but not previous bad character, except in reply.
55.
Character as affecting damages.
——
The Indian Evidence Act, 1872. Paet OiT
Chapter
III.
141
II.
PEOOF.
Facts which need not be peoved.
Section. 56.
Facts judicially noticeable need not be proved.
57.
Facts of whicb Court must take judicial notice.
58.
Facts admitted need not be proved.
Chapter IV.— Of Oral Evidence. 59.
Proof of facts by oral evidence.
GO.
Oral evidence must be
Chapter V.
direct.
Of Documentary Evidence.
61.
Proof of contents of documents.
62.
Primary evidence.
63.
Secondary evidence.
64.
Proof of documents by primary evidence.
65.
Cases in which secondary evidence
relating
to
docu-
ments may be given. 66.
Eules as to notice to produce.
67.
Proof of signature and handwriting of person alleged to
68.
have signed or written document produced.
Proof of execution of document required by law to be attested.
69.
Proof where no attesting witness found.
70.
Admission of execution by party
71.
Proof when attesting -witness denies the execution.
72.
Proof of document not required by law to be
73.
Comparison of signature, writing, or
to attested document.
admitted or proved.
Public Documents. 74.
Public documents:
75.
Private documents.
seal,
attested.
with others
—
The Indian Evidence Act, 1872.
[42 Section. 76.
Certified copies of public documents.
77.
Proof of documents by production of
78.
Proof of other
official
certified copies.
documents.
Presumptions as to Documents. 79.
Presumption as to genuineness of
80.
Presumption as to documents produced as record of
certified copies.
evidence. 81.
Presumption as to
gazettes, newspapers, private Acts
of Parliament, and other documents. 82.
Presumption as to document admissible in England without proof of seal or signature.
83.
Presumption as to maps or plans made by authority of Government.
84.
Presumption as to collections of laws and reports of decisions.
85.
Presumption as to powers of attorney.
86.
Presumption
as to
certified
copies
of foreign judicial
records.
87.
Presumption as to books, maps, and
88.
Presumption as to telegraphic messages.
89.
Presumption as to due
charts.
execution, &c., of
documents
not produced. 90.
Presumption as to documents thirty years
Chapter VI.
old.
Of the Exclusion of Oeal by Documentary Evidence.
91.
Evidence of terms of contracts, grants, and other
dis-
positions of property reduced to form of document. 92.
Exclusion of evidence of oral agreement.
93.
Exclusion of evidence to explain or amend ambiguous,
document. 94.
Exclusion of evidence against application of document to existing facts.
—
.
The Indian Evidence Aci, 18^2
143
Section. 95.
Evidence as to document unmeaning in reference to existing facts.
96.
Evidence as to
application
of
language
vrhicli
can
apply to one only of several persons. 97.
Evidence as to application of language to one of two sets of facts, to neither of
which the whole correctly
applies. 98.
Evidence as to meaning of
99.
Who may
illegible characters, &c.
give SAadence of agreement varying terms of
document. 100.
Saving of provisions of Indian Succession Act relating to wills.
Part
III.
PEODUCTION AND EFFECT OF EVIDENCE. Of the Btjkden of Proof.
Chapter VII. 101.
Burden of proof
102.
On whom burden
103.
Burden of proof
104.
Burden of proving
of proof
lies.
as to particular fact. fact to
be proved to make evidence
admissible.
105.
Burden of proving that case
of accused
comes within
exceptions. fact especially within
106.
Burden of proving
107.
Burden of proving death of person known aUve within thirty
108.
knowledge. to
have been
years.
Burden of proving that person
is alive
who has not been
heard of for seven years. 109.
110.
as to relationship iu cases of partners,
Burden of proof landlord and
tenant, principal
Burden of proof
as to ownership.
and agent.
111. Proof of good faith in transactions where one party relation of active confidence.
is
in
——
;
The Indian Evidence Act, 1872.
144 Section. 112.
Birth during marriage, conclusive proof of legitimacy.
113. Proof of cession of territory.
114.
Court
may presume
existence of certain facts.
Chapter VIII.
Estoppel.
115. Estopppel. 116.
Estoppel of tenant
and
of licensee of person in possession.
117. Estoppel
of
accepter
of bill
of exchange,
bailee
or
licensee.
Chapter IX. 118.
"Who may
119.
Dumb
120.
Parties to civil suit,
Of Witnesses.
testify.
witnesses.
Husband
and
their wives or husbands.
or wife of person under criminal
trial.
121. Judges and Magistrates. 122.
Communications during marriage.
123. Evidence as to affairs of State. 124. Of&cial communications. 125.
Information as to commission of offences.
126.
Professional communications.
127.
Section 126 to apply to interpreters, &c.
128. Privilege not waived 129.
by volunteering
evidence.
Confidential communications with legal advisers.
130. Production of title-deeds of witness not a party. 131.
Production of documents which another person, having possession, could refuse to produce.
132. Witness not excused from answering
answer will criminate. Proviso.
133. Accomplice. 134. Niimber of witnesses.
on ground
that
— The Indian Evidence Act, 1872. Chaptee X.
145
Of the Examination of Witnesses.
Section. 135.
Order of production and examination of witnesses.
136.
Judge
to decide as to admissibility of evidence.
137. Examination in chief.
Cross-examination.
Ee-examination. 138.
Order of examinations.
139.
Cross-examination of person called to produce a docu-
Direction of re-examination.
ment. 140. Witnesses to character.
141.
Leading questions.
142. 143.
When When
144.
Evidence as to matters in writing.
145.
Cross-examination as to previous statements in writing.
146.
Questions lawful in cross-examination.
147.
When
148.
Court to decide
they must not be asked.
they
may
be asked.
witness to be compelled to answer.
when
question shall be asked and
when
witness compelled to answer. 149.
Questions not to be asked without reasonable grounds.
150. Procedure
of Court
in case
of question being asked
without reasonable grounds. 151.
Indecent and scandalous questions.
152. Questions intended to insult or annoy.
153. Exclusion of evidence to
contradict answers to ques-
tions testing veracity.
154.
Question by party to his
own
witness.
155. Impeaching credit of witness. 156.
Questions fact,
157.
tending to corroborate evidence of relevant
admissible.
Former statements of witness may be proved borate later testimony as to same
158.
What
matters
may
to corro-
fact.
be proved in connection with proved
statement relevant under section 32 or 33.
The Indian Evidence Act, 1872.
146 Section. 159.
Eefreshing memory.
When
may
witness
use copy of document to refresh
memory. 160.
Testimony to
stated in
facts
document mentioned in
section 159.
161.
Eight of adverse party as to writing used to refresh
memory. 162.
Production of documents. Translation of documents.
163.
Giving, as
evidence, of
duced on 164.
document
called for
and pro-
notice.
Using, as evidence, of document production of which
was refused on
notice.
165.
Judge's power to put questions or order production.
166.
Power
Chaptee XI.
of jury or assessors to put questions.
— Or
Improper Admission and Eejection of Evidence.
167.
No new
trial
for
improper admission
evidence.
Schedule.
—Enactments
repealed.
or rejection
of
—
:
—
ACT Passed by the
No.
—
;
I.
OF
1873.
Governoe Geneeal of India
in
Council.
{Received the assent of the Governor General on the 15th
March, 1872).
The Indian Evidence Act, 1872.
WHEEEAS Law
the
it is
expedient to consolidate, define, and
of Evidence
;
It is
hereby enacted as follows
Part
1.
This Act
may
Preamble.
:
I.
EELEVANCY OP Chapter
amend
PACTS.
Preliminary.
I.
be called "The
Indian Evidence Act,
Short
title.
1872:" It extends to the
whole of British India, and applies
judicial proceedings in or before
Martial, Officer,
and
but not to
affidavits
to all
any Court, including Courts presented
to
any Court or
nor to proceedings before an arbitrator
it
shall
come
of September, into force on the first day ' ^
1872 2.
Extent,
Commencement' of Act.
On and
repealed (1.)
from
that
•'
following °
laws
shall
be
AH
Repeal of enact-
ments.
:
rules
evidence not
of
Act or Eegulation in (2.)
day the
force in
contained in
any
Statute,
any part of British India
:
All such rules, laws and regulations as have acquired
the force of law under the twenty-fifth section of Councils' Act, 1861,' in ao far as they relate to
herein provided for
;
and
'
The Indian any matter
— —
—
;
The Indian Evidence Act, 1872,
148
The enactments mentioned in the schedule hereto, to the extent specified in the third column of the said schedule. (3.)
But nothing herein contained any provision of any
Statute,
shall he
deemed
to
affect
force in
Act or Eegulation in
any part of British India and not herehy expressly repealed. Inteq)retation-
In
3.
this
used in the
clause.
Act the following words and expressions are following
senses,
appears from the context "Court."
" Court "
includes
a contrary intention
unless
:
aU Judges and Magistrates and
all
per-
sons, except arhitrators, legally authorized to take evidence.
" ¥act "
"Fact/
any
(1)
means and includes thing, state of things, or relation of things, capable
by the
of being perceived
senses
any mental condition
(2)
of
which any person
is
conscious.
TJluiiraixons. (a)
That there are certain objects arranged in a certain order in a
certain place, (J.) (c.) ((Z.)
is
a
fact.
man heard or saw something is a fact. That a man said certain words is a fact. That a man holds a certain opinion, has a certain That a
good
acts in
faith, or fraudulently, or
ticular sense, or is or
was at a
uses a particular
intention
word in a par-
time conscious of a particular
specified
sensation, is a fact. (e.)
One
" Relevant.
That a
man
has a certain reputation
is
a
fact.
fact is said to be relevant to another
when
the one
is
"
connected with the other in any of the ways refeyred to in the provisions of this
"Facts issue."
in
The expression any
fact
relating to the relevancy of facts.
" Facts in issue "
from which, either by
other facts, the
any
Act
means and includes
itself or in
connection with
existence, non-existence, nature, or extent of
right, liability,
or
disability,
asserted or
denied in any
suit or proceeding, necessarily follows.
Explanation. for the
—Whenever, under the
provisions of the law
time being in force relating to Civil Procedure, any
Court records an issue
of fact,
denied in answer to such issue,
is
the
fact
to
be asserted or
a fact in issue.
;
—
;
—
The Indian Evidence Act,
1872,
149
TXliistratwns.
A is
accused of the murder of B.
At his trial the following facts may be in issue ^That A caused B's death. >That A intended to cause B's death. ^ y That A had received grave and sudden provocation from B. > That A, at the time of doing the act which caused B's ^death, was, by reason of unsoundness of mind, incapable of knowing its :
.;}
,
/ r^
•^
i^.'1^'-J!Im.i
nature.
"Document" means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or whicli
may
"Docu-
be used, for the purpose of recording that matter. Illustrations.
A
writing
is
a document.
Words printed, lithographed or photographed A map or plan is a document.
An
A "
inscription
on a metal plate or stone
is
are documents.
a document,
caricature is a document.
Evidence all
(1)
"
means and includes
statements which the Court permits or requires to
be made before
it
by
''
^^''j
witnesses, in relation to matters of fact
under inquiry such statements are called oral evidence
documents
all
(2)
produced
for
the
:
inspection
of
the
Court all
A
such documents are called documentary evidence. fact
said to be
is
matters before considers
its
it,
proved when, after considering the
the Court either believes
the supposition that fact is
dent
it,
considers
man
case, to act
exist,
man
or
ought,
case, to act
upon
it exists.
said to be disproved when, after considering the
matters before exist, or
to
existence so probable that a prudent
under the circumstances of the particular
A
it
ought,
'^Proved.'-
the Court either believes that its
it
does not
non-existence so probable that a pru-
under the circumstances of the particular
upon the supposition that
it
does not exist.
" DisP™^^'''
fj.
j-t' '^ir-'
—
—
:
The Indian Evidence Act, 1872.
I5P
A
"Not
fact
is
when
said not to be proved
it is
neither proved
proved."
nor disproved.
"May
4.
pre-
sume."
Whenever
raay presume a
Whenever
may
fact, it
unless and until "Shall
provided by this Act that
is
it
it
directed
is
Court
either regard such fact as proved,
may
disproved, or
it is
the
by
this
proof of
call for
it
Act that the Court
shall
presume.'
presume a until
disproved
it is
When
" Conclu-
fact, it shall
one fact
regard such fact as proved, unless and
:
declared
is
by
this
Act
to
be
conclusive
sive
proof."
proof of another, the Court shall, on proof of the one regard the
other as proved, and
shall not
be given for the purpose of disproving
Chapter Evidence may be given of
5.
Evidence
fact,
allow evidence to
it.
Of the Eelevancy of Facts.
II.
may be
given in any suit or proceeding of the
existence or non-existence of every fact in issue and of such
facts in issue and
other facts as are hereinafter declared to be relevant, and of
relevant
no
others.
facts.
ExplauMtion.
—This
section shall not enable
give evidence of a fact which he
any provision
law
of the
for
any person
is disentitled
to
to
prove by
the time being in force relating
to Civil Procedure. lOMsbfaiion. (o.)
A
is
tried for the mvirder
of
B by
beating
tim with a
club
with the intention of causing his death.
At A's
trial
A's beating
the following facts are in issue
B
with the club.
A's causing B's death by such a beating.
A's intention to cause B's death. (6.)
A suitor
does not bring with him, and have in readiness for
production at the relies.
prove
first
hearing of the case, a bond on which he
This section does not enable him to produce the bond or its
contents at a subsequent stage of the proceedings, otherwise
than in accordance with the conditions prescribed by the Code of Civil Procedure.
Relevancy of facts
forming
6.
Facts which, though not in issue, are so connected with
a fact in issue as to form part of the same transaction, are
The Indian Evidence Act, 1872, whether they occurred
relevant,
or at different times
and
151
the same time and place
at
places.
part of
sa^ron!^"'
mustrations.
A
(a.)
is
accused of the murder of
A
was said or done by
or
shortly before or after
B
it
B
by beating him.
Whatever
or the by-standers at the beating, or so as
to
form part of the transaction,
is
a
relevant fact. (6.)
A is
accused of waging war against the Queen by taking part in
armed insurrection in which property is destroyed, troops are attacked, and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at (c.)
A
sues
B
correspondence.
for
all
of them.
a Hbel contained in a letter forming part of a
Letters between the parties relating to the subject
out of which the libel arose, and forming part of the correspondence it
which
it is
contained, are relevant facts, though they do not con-
tain the libel itself.
The question is, whether certain goods ordered from B were The goods were delivered to several intermediate delivered to A. Each dehvery is a relevant fact. persons successively. ((Z.)
7.
or
Facts which are the occasion, cause, or
otherwise,
of relevant facts,
or facts
constitute the state of things under
which
in
effect,
issue,
immediate or
which
which they happened,
or
afforded an opportunity for their occurrence or trans-
Facts occasion, effect f^*^''^
issue.
action, are relevant. IHustrations. (a.)
The question
is,
whether A robbed B.
The facts that, shortly before the robbery, B went to a fair with money in his possession, and that he showed it, or mentioned the fact that
he had
it,
to third persons, are relevant.
The question is, whether A Marks on the ground, produced where the murder was committed, (c.) The question is, whether A (6.)
murdered B. by a struggle
at or near the place
are relevant facts.
poisoned B.
The state of B's health before the symptoms ascribed to and habits of B, known to A, which afforded an opportunity administration of poison, are relevant facts.
poison, for the
oT ^'°-
The Indian Evidence Act, 1872.
152 Motive, tion
and
subsequent conduct.
8.
Any'
fact
which
relevant
is
shows
or
constitutes
motive or preparation for any fact in issue or relevant
^^^ conduct of any party, any suit or proceeding, in ceeding,
or
in
reference
whom
is
to
any
such suit or pro-
to
fact
in
issue
the subject of any proceeding,
such conduct influences or or relevant fact,
reference
is
and whether
influenced it
fact,
any party, to
to
therein
and the conduct of any person an
relevant thereto, against
any agent
or of
a
is
by any
was previous
or
ofifence
relevant, if
fact in issue
or
subsequent
thereto.
EocplaTiation
1.—The word "conduct"
in this section does
not include statements, unless those statements accompany
and explain is
than statements
acts other
;
but this explanation
not to affect the relevancy of statements under any other
section of this Act.
Explanation relevant,
hearing,
2.
—^When
any statement made which
affects
conduct
the to
him
such conduct,
any
of
or in
person
his presence
is
and
is relevant.
Uhbitrations.
A
(a.)
is tried for
the murder of B.
The facts that A murdered 0, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant. B denies (6.) A sues B upon a bond for the payment of money. the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, is relevant. (c.) A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, {d.)
The question
The
facts that,
is,
relevant.
is
whether a certain document
is
the will of A.
not long before the date of the alleged
will,
A made
inquiry into matters to which the provisions of the alleged relate
;
will
making the will, and be prepared, of which he did
that he consulted vakils ia reference to
that he caused drafts of other wills to
not approve, are relevant. (e.)
The
A
is
accused of a crime.
facts that, either before, or at
the time
of,
or after the alleged
The Indian Evidence Act, 1872.
A
crime,
153
provided evidence whicli would tend to give to the facts of
the case an appearance favourable to himself, or that he destroyed or
concealed
evidence,
absence of persons
or prevented
presence
the
who might have been
persons to give false evidence respecting
it,
A robbed
B.
(/.)
The question
The
is,
facts that, after
coming
police are
whether
B was
to look
immediately afterwards
or
procured
or suborned
witnesses,
are relevant.
C said in A's presence, man who robbed B,' and
robbed,
for the
the
'
the
that
A ran away, are relevant. whether A owes B 10,000 rupees.
(g.) The question is, The facts that A asked C to lend him money, and that D said to C in A's presence and hearing, I advise you not to trust A, for he owes B 10,000 rupees, and that A went away without making any answer, are relevant facts. The question is, whether A committed a crime. (?!..) The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of '
the letter, are relevant.
A
(i.)
The
accused of a crime.
is
facts that, after
the commission of the alleged crime, he ab-
sconded, or was in possession of property or the proceeds of property
acquired by the crime, or attempted to conceal things which were or
might have have been used in committing it, are relevant. y.) The question is, whether A was ravished.
The
facts that, shortly after the alleged rape, she
made a complaint
relating to the crime, the circumstances under which,
and the terms
was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though
in which the complaint
it
may be
relevant
as a dying declaration
as
under section
corroborative evidence under
thirty- two, clause (one), or
section one
hundred and
fifty-
seven. (it.)
The
The question fact that,
is,
whether
A
was robbed.
soon after the alleged robbery, he made a complaint
relating to the offence, the circumstances under which,
in which, the complaint
The
fact
complaint,
may be
was made, are
and the terms
relevant.
that he said he had been robbed, without is
making any
not relevant as conduct under this section, though
relevant
as a dying declaration under section thirty-two, clause (one), or
M
it
The Indian Evidence Act, 1872.
154 as
corroborative
under secbion one hundred and
evidence
fifty-
seven. Facts necessary to explain or
Or relevant fact, or
relevaut
gcsted
facts.
9.
Tacts necessarv to explain or introduce a fact in issue o s-
by a
which support or rebut an inference sug-
fact in issue, or relevant fact, or
jjjg i(Je]i(;ity
of
any thing
which
whose identity
or person
is
establish relevant,
or fix the time or place at which any fact in issue or relevant fact
show the
happened, or which
whom any
by
of parties
relation
such fact was transacted, are relevant in so far as
they are necessary for that purpose. Ilhisin'aVions.
The question
(a.)
The
A
(J.)
whether a given document
and of
of A's property
state
alleged will
is,
may be
sues
B
is
the will of A.
his family at the date of the
relevant facts.
for a
imputing disgraceful conduct to
libel
A
;
B
afl&rms that the matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.
The
particulars of a
dispute between
connected with the alleged there was a dispute
may be
A
and B.
A
is
accused of a crime.
The
fact that,
from his house,
and
libel are irrelevant,
between (c.)
A
relevant if
it
B
about a matter un-
though the
affected
the
soon after the commission of the crime, is
fact that
relations
A absconded
under section eight, as conduct subse-
relevant,
quent to and afiected by facts in issue.
The
fact that, at the
time when he
left
home, he had sudden and
urgent business at the place to which he tending to explain the fact that he
The
left
home
on which he
details of the business
in so far as they are necessary to
left
went,
relevant,
is
as
suddenly. are not relevant, except
show that the business was sudden
and urgent. ((i.)
A
sues
B
for inducing
O
to break a contract of service
made
by him with A. 0, on leaving A's service, says to A, I am leaving you because B has made me a better offer.' This statement is a '
relevant fact as explanatory of O's conduct, which
is
relevant as a
fact in issue. (e.)
A
is
accused of theft,
is
seen to give the stolen property to B,
—
:
The Indian Evidence Act, who
is
seen to give
it
B
to A's wife.
you are to hide this.' B's statement fact which is part of the transaction. (/.)
A
is tried for
of a mob.
The
a
riot,
and
cries of the
is
mob
\^']2.
155
says, as lie delivers is
it,
'
A
says
relevant as explanatory of a
proved to have marched at the head are relevant as explanatory of the
nature of the transaction. 10.
or or
Where
there
reasonable ground to believe that two
is
more persons have conspired together an actionable wrong, anything
any one
to
commit an
done, or written by
said,
of such persons in reference to their
tion, after the
by any one
time
when such
of them,
is
offence
was
iatention
common
inten-
entertained
first
Things
done by f^^X-a. reference to common design.
a relevant fact as against each of the
persons believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose
of showing that any such person was a party to
it.
JXlusiration.
A
Keasonable ground exists for believing that
wage war against the Queen. The facts that B procured arms in Europe
has joined in a con-
spiracy to
conspiracy,
collected
suaded persons
money
to join the
for the
purpose of the
in Calcutta for a like object,
conspiracy
from Delhi to Calcutta,
G-
at
Cabul the money which
and the contents of a
B
Bombay,
in
writings advocating the object in view at Agra, and
letter written
F
had
by
D
per-
published
transmitted collected
at
H giving an account
of the conspiracy, are each relevant, both to prove the existence of
may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have the conspiracy, and to prove A's complicity in
it,
although he
taken place before he joiaed the conspiracy or after he
11.
Facts not otherwise relevant are relevant
(1)
if
they
are
inconsistent
with
any
fact
left it.
Whenfacts
in
issue
or
relevant
relevant fact (2)
make
if
by themselves
the
^se°'^^''
become
or in connection with other facts they
existence or non-existence of any fact in issue
relevant fact highly probable or improbable.
or
relevant.
—
15^
—
;
The Indian Evidence Act, 1872. lUiVLsiffaiions.
The question
(a.)
A
whether
is,
committed a crime at Calcutta on
a certain day.
The The
fact that,
on that day,
render
it
mitted
at
Lahore
relevant.
is
from the place where
it
A was
was committed, which would impossible, that he com-
highly improbable, though not
it, is
relevant.
The question
(6.)
was
time when the crime was committed,
fact that, near the
at a distance
A
is,
whether
A
committed a crime.
The circumstances are such that the crime must have been committed either by A, B, 0, or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by either B, 0, or D, is relevant. In suits for damages,
Will
enabk
wMch
amount
suits in
which damages are claimed, any
enable the Court
facts tend-
Court to determine
In
12.
to determine the
Ought to be awarded "v^iiere
]^3_
the question
amount
of
damages
jo
the existence of any right
is as to
'_
Any
(«)
transaction
which
is relevant.
or custom, the following facts are relevant
vant.
fact
by which
the
:
right
custom
or
in
Facts rele-
question was created, claimed, modified, recognised, asserted
right or
or denied, or
custom
IS
in question
which was inconsistent with
existence
its
Particular instances in which the right
(b)
claimed,
recognised,
or
or
exercised,
or custom
in which
was
its
exercise
A
deed con-
was disputed, asserted or departed from. Illustration.
The question
is
whether
A
has a right to a fishery.
ferring the fishery on A's ancestors, a father,
mortgage of the fishery by A's
a subsequent grant of the fishery by A's
cQable with the mortgage, particular instances
in
father,
exercised the right, or in which the exerciseof the right
by A's neighbours, are relevant Facts exi'sTenfe
of state of mind or of body or feeling.
14.
irrecon-
which A's father
was stopped
facts.
Facts showing the existence of any state of
^^°^ ^^ intention, knowledge, good
mind
faith, negligence, rashness,
good-wUl towards any particular person or showing 6 the existence of any state of body or bodily feelino' are ill-will or
—
.
relevant,
body
when
the existence of any such
state of
or bodily feeling is in issue or relevant.
mind
or
The Indian Evidence Act, Explanation.
a
relevant
—A
as showing the existence of
fact relevant
of
state
157
\Z']2.
mind must
show
that
exists,
it
not
generally, but in reference to the particular matter in question. JSmstrations.
A ia
(a.)
accused of receiving stolen goods knowing them to be
It is proved ttat lie
stolen.
was in possession of a particular
stolen
the same time, he was in possession of
many
article.
The
fact that, at
other stolen articles
and
all
(6.)
is relevant, as
of which he
of the^articles
A
is
accused
of
tending to show that he knew each
was in possession
fraudulently
to be stolen.
delivering to another person
a piece of counterfeit coin which, at the time when he delivered it, he
knew to be counterfeit. The fact that at the time of its delivery, number of other pieces of counterfeit coin, is (c.)
A
sues
B
A
was possessed of a
relevant.
damage done by a dog of B's which
for
B knew
to
be
ferocious.
The
dog had previously bitten X, T, and
facts that the
Z,
and that
they had made complaints to B, are relevant. (d.)
The question
The
fact that
whether A, the accepter of a biU of exchange knew that the name of the payee was fictitious. is,
A
had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person. (e.)
A
is
accused
of defaming
B by
publishing
an
imputation
intended to harm the reputation of B.
The
fact of previous publications
will on the part of
A towards
B,
is
by
A
respecting B, showing iU-
relevant, as proving A's intention
to harm B's reputation by the particular publication in question.
The facts that there was no previous quarrel between A and B and that A repeated the matter complained of as he heard it, are re^ levant, as showing that A did not intend to harm the reputation ofB. (/.)
A is
solvent,
sued by
B
for fraudulently representing to
B
that
whereby B, being induced to trust 0, who was
C was
insolvent,
suffered loss.
A
The fact that, at the time when was supposed to be solvent by
his
dealing with him,
showing that
is
relevant, as
sentation in good faith.
represented
C
neighbours
A
to be solvent,
C
and by persons
made the
repre-
The Indian Evidence Act,
158
A
ig.)
sued by
is
of which
A
is
A's defence
The
work
of the
B
work done by B, upon a bouse
for the price of
that B's contract was with 0.
is
A
paid
A did,
A
is
work in question is relevant, as the management make over to
in good faith,
was in a position to contract with
in question, so that
it,
for
A.
accused of the dishonest misappropriation of property
which he had found, and the question priated
•
the
for
on C's own account, and not as agent {h.)
2.
owner, by the order of G, a contractor.
fact that
proving that
B
\'&']
he believed in good
is
whether,
faith that the real
when he appro-
owner could not be
found.
The
fact that public
of the property
notice of the loss
given in the place where
A was,
is
relevant, as
had been
showing that
A
did
not in good faith believe that the real owner of the property could not be found.
A
knew, or had reason to believe, that the notice was who had heard of the loss of the property given fraudulently by
The
fact that
and wished
to set
the fact that
A
up a
knew
false
claim to
of the
it,
is relevant, as
not
did
notice
showing that
disprove A's good
faith. (i.)
A
B
charged with shooting at
is
with intent to kiU him.
In
order to show A's intent, the fact of A's having previously shot at
may be (J.)
B
proved.
A
is
charged with sending threatening
ing letters
A to B
previously sent by
may
letters to B.
Threaten-
be proved, as showing
the intention of the letters. (&.)
The question
is,
whether
A has
been guilty of cruelty towards
B, his wife.
Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.
The question is, whether A's death was caused by poison. Statements made by A during his illness as to his symptoms are
(l.)
relevant facts. (m.)
The question
is,
what was the state of A's health at the time life was effected.
when an assurance on his Statements made by A
as to the state of his health at or near the
time in question, are relevant {n.)
A
sues
B
for negligence in providing
hire not reasonably
The
facts.
fit
for use,
fact that B's attention
whereby
A
him with a
carriage for
was injured.
was drawn on other occasions
defect of that particular carriage, is relevant.
to the
The Indian Evidence Act, 1872. The (0.)
B
that
fact
which he
was habitually negligent
about
159 the
carriages
let to hire, is irrelevant.
A is
tried for the
B
murder of
by
intentionally shooting
him
dead.
The
on other occasions, shot
that A,
fact
B
at
relevant,
is
as
showing his intention to shoot B.
The fact that A was in the habit to murder them, is irrelevant. (p.)
A is
The
of shooting at people with intent
tried for a crime.
fact that
he said something indicating an intention to commit
that particular crime, is relevant.
The fact that he said something indicating a general commit crimes of that class, is irrelevant. 15.
"When there
an act was
a question whether
is
disposition to
acci-
dental or intentional, the fact that such act formed part of a series
of similar occurrences,
doing the act was concerned,
each of which the person
in
is relevant.
Facts question ^c't^^'^ accidental or intentional.
lllnitrati<ms.
(a.)
obtain
The
A
is
accused
money facts
of
which
for
that
A
down
burniag
it is
house
his
order
in
to
iasnred.
lived in several houses
successively,
each of
which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office,
are relevant,
as
tending
to
show that the
fires
were
not
accidental. (&.)
A
is
employed to receive money
from
the debtors
of
B.
make entries in a book showing the amounts reHe makes an entry showing that on a particular
It is A's duty to
ceived by him.
occasion he received less than he really did receive.
The question
is,
whether
this
false entry
was accidental or
inten-
tional.
The fact that other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant (c.)
A
is
accused of fraudulently delivering to
B
a
counterfeit
rupee.
The question is, whether the The facts that, soon before
delivery of the rupee
or
delivered counterfeit rupees to C,
that the delivery to
B
was accidental
soon after the delivery to B,
D
A
and E, are relevant, as showing
was not accidental.
—
;
The Indian Evidence Act, 1872.
l6o
of business
when
When
16.
Existence
rele-
there is a question whether a particular act
of any course of business, according to
doiG, the existence -^Y^y:^ it naturally
was
would have been done,
a relevant
is
fact.
Illwtrations. (a.)
The question
The
facts that it
is,
whether a particular
letter
was despatched.
was the ordinary course of business
for all letters
put in a certain place to be carried to the post, and that that particular letter
was put into that
The question
(6.)
facts that it
the
is,
place, are relevant.
whether a particular
letter
reached A.
The
was posted in due course, and was not returned through
Dead Letter
OflSce, are relevant.
Admissions.
An
17.
Admission defined.
admission
-wrhich Suggests
vant
fact,
is
statement,
a
oral
any inference as to any
and which
is
made by any
or
documentary,
fact in issue or rele-
of the
persons,
and
imder the circumstances, hereiaafter mentioned. 18.
Admission
—by
party
ceedingor
Statements made by a party to the
^^ agent to any such party,
whom
the circumstanccs
case,
of
the
his agent
,
in
^""
by party interested
by person
:
jj^ ^]^g
or
impliedly
sued in a
subject-matter of the proceeding,
and who make the
statement in their character of persons so interested, or (2.)
'
or
... admissions,
made while the party making them held that character. Statements made by (1-) psrsons who have any proprietary or pecuniary interest
interest
^"^^
expressly
representative character, are not admissions, unless they were
tadTC character
as
by
Court regards, under
by him to make them, are Statements made by parties to suits, suing
authorized by suitor
the
proceeding, or
persons from
whom
the parties to the suit have derived
their interest in the subject-matter of the suit,
are admissions, if they are
made during
the continuance of
the interest of the persons making the statements. 1^-
Statements
made by persons whose
position or liability
Admisby
^^
whose
admissions,
must be
such pei'sons in relation to such position or liability in a suit
sions
j^g
neccssary to prove as if
against any party to the suit, are
such statements would be relevant as against
— The Indian Evidence Aci, i8j7. brought by or against them, and
if
they are made whilst the
person making them occupies such position or
such
i6i
subject to
is
proved as
pf^Jyto si"t-
liability. Illustration.
A
undertakes to collect rents for B.
B
sues
A
for not collecting rent
due from
to B.
A denies that rent was due from to B. A statement by C that he owed B rent is relevant fact as against A, if A denies that 20.
Statements made by persons to
suit has
an admission, and
is
a
did owe rent to B.
whom
a party to the
Admissions
expressly referred for information in reference to a
elpressiyre-
matter in dispute are admissions.
^^'^'^^^
'°
^y
party to suit Illustration.
The question
A is
says to
is,
whether a horse sold by
B — Go
and ask
'
knows
0,
all
A
to
B
about
is it.'
sound. C's statement
an admission. 21.
Admissions are relevant, and
the person
who makes them,
may be proved
as against
or his representative in interest
.
proved by or on behalf of the r person who but they J cannot be r J makes them or by his representative in interest, except in .
the following cases
Proof of against
P^^^9^ making them, and by or on their be-
:
half.
(1.)
An
may be when it is
admission
person making
it,
person making
it
were dead,
it
proved by or on behalf of the of
such a nature that,
would be relevant
as
if
the
between
third persons under section thirty-two. (2.)
An
admission
person making
it,
may
when
be proved by or on behalf of the
it
consists of a statement of the ex-
mind or body, relevant or in issue, made at or about the time when such a state of mind or body existed, and is accompanied by conduct rendering its falseof any state of
istence
hood improbable. (3.)
An
admission
person making mission.
it,
may
if it is
be proved by or on behalf of the relevant otherwise
than as an ad-
1
The Indian Evidence Act, 1872.
62
Illustrations.
The
(a.)
deed
A
not forged.
or is
is
A
between
question
B
and
affirms that
it
is,
is
whether
genuine,
a
B
certain
that
it
is
forged.
A may prove a statement by B that the deed is genuine, and B may but A cannot prove prove a statement by A that the deed is forged ;
a statement by himself that the deed statement by himself that the deed
A, the captain of a ship,
(6.)
Evidence
is
is
genuine, nor can
is
B
prove a
forged.
is
tried for casting her away.
given to show that the ship was
taken out of her
proper course.
A produces
a book kept by him in the ordinary course
business, showing observations alleged to have been taken
of his
by him
from day to day, and indicating that the ship was not taken out of her
A may prove these
proper course.
admissible between third parties,
statements, because they would be
if he
were dead, under section thirty-
two, clause (two).
A is accused of a crime committed by him at Calcutta.
(c.)
He dg^y,
produces a letter written by himself and dated at Lahore on that
and bearing the Lahore post-mark of that day.
The statement if
A
were dead,
date of the
in the
would
it
letter
is
admissible, because,
be admissible under section thirty-two,
clause (two.)
A
(d.)
is
accused of receiving stolen goods knowing
them
to
be
stolen.
He
to
offers
prove
that
he
refused
to
them below
sell
their
value.
A
may
because
prove
they
these
statements,
are explanatory
of
though
conduct
they
are
influenced
adnyssions,
by
facts
in
issue. (e.)
feit
A is accused of
coin which he
He
offers to
coin, as
fraudulently having in his possession counter-
knew to be counterfeit.
prove that he asked a skilful person to examine the
he doubted whether
person did examine
it
it
was counterfeit or
and told him
it
not,
and that that
was genuine.
A may prove these facts for the reasons
stated in the last preceding
illustration.
When
oral
admissions tents of
^^-
^^^
admissions as to the contents of a document are
not relevant, unless and until the
them shows that he
is
party proposing to prove.
entitled to give secondary evidence of
The Indian Evidence Act,
xZ"] 2.
the contents of such document under the
163
rules hereinafter
contained, or unless the genuineness of a document produced
documents y^t!^^^'
in question.
is
In civU cases no admission
23.
relevant,
is
if
upon an express condition that evidence
either
it
of
made
is it
not
is
Admiscivil cases, '^^'^'
he given, or imder circumstances from which the Court ^^^"
to
can infer that the parties agreed together that evidence of
it
should not he given. Explanation.
exempt any
—Nothing
in this section shall
barrister, pleader, attorney
evidence of any matter of which he
be taken to
or vakil from giving
may be
compelled to give
evidence under section one hundred and twenty-six.
A
made by an accused person is irrelevant in a criminal proceedmg, if the making of the confession appears to the Court to have been caused by any inducement, 24.
confession
threat or promise, having reference to the charge against the
m .
accused person, proceeding from a person
him
person grounds, which would appear to
supposing that by making
it
^ induceJjJ™^'^
promise
when
.
authority and
the opinion of the Court, to give the accused
sufficient, in
Confession
reasonable, for
irre-
levant
in
p",^eed'"S-
he would gain any advantage or
avoid any evil of a temporal nature in reference to the pro-
him. ceedings against ° ° 25. No confession made to a Police .
as
,
agamst a person accused 26.
No
J.
-,
confession
custody of a Police
01
„ . , Confession
unless
to Police officer
any onence.
made by any person officer,
be proved
officer, shall
on
to
whilst he
be made
it
m
is
in the .
.
the im-
mediate presence of a Magistrate, shall be proved as against such person.
not
be
P^°''^^-
Confession
by accused custody of "°'
^°ll^
27. Provided
that,
when any
fact is
deposed to as discovered proved against
in consequence of information received from a person accused of
any
'
as relates distinctly to the
it
amounts
fact
much
of of^^i^ato a confession or not, ''^ ^f:
offence, in the custody of a Police
such information, whether
officer,
so
thereby discovered,
may be
proved.
If such a confession as .
four
is
made
ceivedirom accused
maybe
proved. 28.
him.
is
referred to in section twenty-
.
after the impression caused
1
•
J
by any such induce-
Confession
made
after
removal of
1
The Indian Evidence Act, 1872.
64
impression caused by
ment, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.
induce-
ment, or promise,
threat,
29.
If such a confession
become
is
otherwise relevant,
irrelevant merely because
it
does not
was made under a pro-
it
relevant.
Confession otherwise relevant not to be-
come
irre-
mise of secrecy, or in consequence of a deception practised
on the
when he was drunk,
it,
or
was made ra answer
to
purpose of obtaining
accused person for the or because
it
may
questions which he need not have answered, whatever
levant because of promise of
have been the form of those questions, or because he was not
secrecy,
warned that he was not bound
&c.
that evidence of Consideration of
30.
it
When more same
to
make such
confession,
and
might be given against him. persons than
one are being tried jointly
and a confession made by one
of such
proved
for the
confession
persons affecting himself and some other of such persons
offence,
is
affecting
may
person
proved, the Court
making it and others
as against such other
jointly
under
trial
who makes such
take into consideration such confession
person as well as
against
the
person
confession.
same
for
niusiraiions.
offence. (a.)
that
A and B are jointly tried for the murder of G. A said, — B and I murdered C The Court may '
It is proved
consider the
effect of this confession as against B. (6.)
A
is
show that murdered
on his
C
against A, as 31.
sions not
conclusive proof, but
may
the murder of 0.
was murdered by
This statement
Admis-
trial for
B
is
may
A
There
and B, and that
B
is
evidence to
said,
—
'
A
and I
not be taken into consideration by the Court
not being jointly tried.
Admissions
admitted, but they
are not
may
conclusive
proof of the matters
operate as estoppels imder the pro-
visions hereinafter contained.
estop.
Statements by Persons
who cannot be called
as
Witnesses. 32.
Cases in vfhich
statement of relevant fact
by per-
son
who
is
by
Statements, written or verbal, of relevant facts
a person
who
is
dead, or
who cannot be
become incapable of giving evidence,
or
found, or
made
who
has
whose attendance
cannot be procured without an amount of delay or expense
;
The Indian Evidence Act, wliicli,
under the circumstances of the
Court
unreasonable,
facts
to
the
dead or
in
the
found, &c. *= '^"i"^''"'-
:—
following cases
"When the statement
(1)
appears
case,
themselves relevant
are
165
x?,']2.
is
made by a person
as
to
the
cause of his death, or as to any of the circumstances of the transaction
which resulted in his death, in
which the
cases in
whenitre-
cbmx of ^^^^^'>
cause of that person's death comes into question.
Such statements are relevant whether the person who made
them was
was
or
not,
at
the
time when they were made,
under expectation of death, and whatever
may
be the nature
of the proceeding in which the cause of his death comes into question.
When
made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in (2)
the statement was
or
is
made
business
the ordinary course of business, or in the discharge of professional
him
duty
;
or of
an acknowledgment written or signed by
of the receipt of money, goods, securities or property of
any kind
;
or of
document used in commerce written
a
or
signed by him, or of the date of a letter or other document usually dated, written or signed by him.
When
(3)
the statement
prietary interest of the
would expose him
or
is
against the pecuniary or pro-
person making
it,
or when,
would have exposed him
if true,
it.
or against
^^^^If.
to a criminal
prosecution or to a suit for damages.
When
(4)
the statement gives the
opinion
of any
such
or gives
person, as to the existence of any public right or custom or
option
matter of public or general
right or
if
existed,
it
when such such
right,
(5)
he would have been likely to
be
which,
aware,
and
statmeent was made before any controversy as to
custom or matter had
When
relationship
to
the
existence of any
between persons as to whose relationship the statement
had
special
means
of
know-
and when the statement was made before the question
in dispute was raised.
matters' of .
'"'
f^j^t
arisen.
the statement relates
person making the ledge,
interest, of the existence of
as
orrelatesto
^f ^kt^onship; iyiCr^^^
^^ '^'^'p^^^"^
i66 or
The Indian Evidence Act, 1872,
IS
When
(6)
the statement relates to
the
existence of
any
m
any
made
in will or
deed
rela-
ting to
family
relationship nsetween persons will
or
and
deceased,
deed relating to the
affairs
made
is
which
of the family to
any such deceased person belonged or in any family pedigree,
affairs j
upon any tombstone, family
or
which such statement
or other thing on
portrait
statements are usually made,
made
was
the
before
and when such
question
dispute was
in
raised. or in docu-
ment
(7).
When
the statement
ting to transaction
mentioned in section 13, clause
other document which relates to any such transaction
mentioned in section thirteen, clause
When
(8)
is
made
by several
{a).
was made by a number of persons impressions on their part relevant
feelings or
to the matter in question.
persons
and expresses teeling relevant to matter in question.
as is
the statement
and expressed or
contained in any deed, will or
is
rela-
TWns^ations.
The question
(a.)
A
wtether
is,
A
was murdered by B
;
or
dies of injuries received in a transaction in the course of
she was ravished.
The question
B; or The question
whether
is,
stances that a suit would
Statements
made by A
A
lie
is,
was
whether she was ravished by
killed
B by
against
wUch
by
B
under such circum-
A's widow.
as to the cause of his or her death, referring
and the actionable wrong under
respectively to the murder, the rape, consideration, are relevant facts.
The question
(6.)
An
is
as to the date of A's birth.
entry in the diary of a deceased surgeon, regularly kept in the
course of business, stating that, on a given day,
he attended A's
mother and delivered her of a son, ia a relevant fact, (c.) The question is, whether A was in Calcutta on a given day.
A
statement in the diary of a deceased
on
in the course of business, that,
tended
A
place mentioned,
at a
conferring with (Si)
him upon
The question
is,
a
in
solicitor,
regularly kept
given day, the solicitor
at-
the purpose
of
Calcutta,
for
specified business, is
a relevant
fact.
whether a ship sailed from Bombay harbour
on a given day.
A letter which
whom
written by a deceased
she was
chartered,
to
member
their
of a merchant's firm,
by
correspondents in London to
the cargo was consigned, stating that the ship sailed on a
given day from
Bombay
harbour,
is
a relevant
fact.
The Indian Evidence Act, 1872. The question
(e.)
A
letter
ceived
is,
whether rent was paid to
from A's deceased
the
certain land.
saying that he had re-
ageflt to A,
acoonnt, and held
on A's
rent
A for
167
at A's
it
orders, is a
relevant fact. (/.) The question is whether A and B were legally married. The statement of a deceased clergyman that he married them
nnder such circumstances that the celebration would be a crime,
is
relevant.
The question
(g^
whether A, a person who cannot be found,
is,
wrote a letter on a certain day. is
dated on that day,
The question
fact that a letter written
by him
is relevant.
what was the cause of the wreck of a ship. protest made by the captain, whose attendance cannot be pro-
(fe.)
A
The
cured,
is
a relevant
is,
fact.
The question is, whether a given road is a public way. statement by A, a deceased headman of the village, that the road
(i.)
A was
a relevant
public, is
The question
(j.)
is,
fact.
what was the price of grain on a certain day
in a particular market.
A
statement of the price,
ceased banya in the ordinary course of his business,
The question
(fc.)
A
statement by
The question
(Z.)
A of
letter
A
is,
A
is,
An
B was
The question
entry in a
is is,
A
sues
B
a relevant
in a shop window.
cature and tators
33.
its
a
fact.
dead, was the father of B.
friend,
whether, and when,
libel
A
announcing the birth
fact.
memorandum-book by for
a relevant
what was the date of the birth of A.
his daughter's marriage with (w.)
is
is
de-
his son, is a relevant fact.
from A's deceased father to a
on a given day,
(m.)
whether A, who
that
made by a
A
and B were married.
C, the deceased father of
on a given date,
is
B, of
a relevant fact.
expressed in a painted caricature exposed
The question
is
as to the similarity
The remarks
libeUous character.
of a
of the cari-
crowd of spec-
on these points may be proved.
Evidence given by a witness in a judicial proceeding,
or before any person authorized
by law
to take
it, is
relevant
for the purpose of proving, in a subsequent judicial proceeding, or in a
later
of the
stage
truth of the facts which or cannot be found, or
it
is
same
states,
judicial proceeding, the
when
the witness
is
dead
incapable of giving evidence, or
kept out of the way by the adverse party, or cannot be obtained without
if
Relevancy "yi^g'j^^™ for prov-
sequent fng.'^tL"
is
his presence
rn amount of delay or expense
f^^^^^*^ in stated.
—
i68
;
:
The Indian Evidence Act, 1872. which, under the circumstances of the case, the court considers unreasonable.
Provided that the proceeding
was between the same
parties or their
representatives in interest
that the adverse party in the
and opportunity
first
proceeding had the right
to cross-examine
that the questions in issue were substantially the
the
in
as in the second proceeding.
first
Explanation. to be
same
—
be deemed
^A criminal trial or inquiry shall
a proceeding between the prosecutor and the accused
within the meaning of this section.
Statements made under special Circumstances. Entries in
34. Entries
in
books of
account,
regularly
J
kept
in
the
books of
course
account wiien rele-
matter into which the Court has to inquire, but such state-
vant.
of business,
ments
whenever they
refer
to
a
alone be sufficient evidence to charge any
shall not
person with
are relevant
liability.
TOMsivaiion.
A
B
sues
showing
B
for Es. 1,000,
to
and shows
the account-books
entries in
be indebted to him to this amount.
The
entries
are
relevant, but are not sufficient, without other evidence, to prove the
debt.
35.
Relevancy
An
entry in any public or other
official
book, register,
of entry in public re-
or record, stating a fact in issue or relevant fact,
cord, made in perform-
by a public servant
ance of duty.
by any
person
other
by the
enjoined
in the in
discharge of his
performance
of
and made
official
a
duty, or
duty specially
law of the country in which such book,
register, or record is kept, is itself a relevant fact.
36.
Relevancy
Statements of facts in issue or relevant
of statements in
published
maps,
in
maps
as
to
charts plans.
maps
facts,
made
in
or charts generally offered for public sale, or
or plans
made under
the authority of Government,
and
matters usually represented
or
stated
in
^uch maps,
charts, or plans, are themselves relevant facts. 37.
"When the Court has
to
form an opinion
as
to
the
The Indian Evidence Act, i^ji.
169
existence of any fact of a public nature, any statement of
made
in a
Relevancy
it,
contained in any Act of Parliament, or in
recital
any Act of the Governor General
of India in Council,
menfas
or of
to
^'^^°^
the Governors in Council of Madras or Bombay, or of the
public nature, con-
Lieutenant-Governor in Council of Bengal, or in a notification
certain
Government appearing in the
of the
of any
Gazette
the
Gazette of India, or in
Government, or in any printed
Local
^otifica''°"^-
paper purporting to be the London Gazette or the Government Gazette of
any colony
or possession of the Queen, is a relevant
fact.
When
38.
the Court has to form an
opinion as to a law of Relevancy
any country, any statement of such law contained in a book purporting to be printed or of the
Government
and any report
law-,
published under the authority
of such country ^
and
to contain
any such •'
ments as contained '" '^^^
books.
of a ruling of the Courts of such country
contained in a book purporting to be a report of such rulings, is relevant.
How MUCH When
39.
OF A Statement
any statement
of
is
to be pkoved.
which evidence
given forms
is
part of a longer statement, or of a conversation or part of an isolated document, or
is
contained in a document which forms
part of a book, or of a connected series of letters or papers,
evidence shall be given of so
much and no more
ment, conversation,' document, book, or '
papers
as
the
of the stateof letters
series
or
Court considers necessary in that particular
case to the full understanding of the nature and effect of the statement, and of the circumstances under which
it
what
evi-
^g"*^? '° ^''''="
statement forms part verea't°on,
'lo^nient, book, or series of papers.
was made.
Judgments of Courts of Justice, when relevant. 40.
The existence
of
any judgment, order or decree which
by law prevents any Court from taking cognizance of a suit is or holding ^ ° a trial, is a relevant fact when the question whether such Court ought to take cognizance of such to hold such 41.
A
suit, or
Previous ielera^n" to ^e^'^''f
cond for
suit
trial.
trial.
final
judgment,
order or
N
decree
of
a
competent
Relevancy of certain
;
;
i7o
The Indian Evidence Act, 1872,
judgments &c.^^uiis-^'
diction.
matrimonial, admiralty or
Court, in the exercise of probate,
insolvency fpQj^
g^j^y.
person
pgj^Qj^ a,ny
to
entitled
which confers upon or takes away legal character, or which declares any
jurisdiction,
be
any
to
any
to
entitled
person but absolutely,
is
such legal character, or the such thing,
is
when
relevant title
any
as against
not
specific thiug,
or
character,
such
to
be
specified
the existence of any
of any such person to any
relevant.
Such judgment, order
or decree is conclusive proof
that any legal character, which
confers accrued at the"
it
time when such judgment, order or decree came into operation;
that any legal
character,
to
which
declares
it
any such
person to be entitled, accrued to that person at the time when
such judgment. declares
it
have accrued to that person
to
that any legal character which
it
takes
away from
any, such
person ceased at the time from which such judgment declared that
it
had ceased or should cease
and that any thing
to
which
which such judgment
declares
any person
to
be
of that person at the time from
was the property
so entitled
it
.declares that it
had been
or should
be
his property. Relevancy and effect of judg-
ments
or-
ders or decrees, other than those meationed in
42.
Judgments,
orders
if
than
those
they relate to
matters of a public nature relevant to the enquiry
;
but such
judgments, orders or decrees are not conclusive proof of that
which they
state.
-m
i-
j.
niMstration.
A
sues
B
for trespass
on
pnbKc right of way over the
The
for a trespass
existence of the
land,
B
which
Judgments,
mentioned
in
onthe same
same right of way,
proof that the right of 43.
his land.
A
alleges
tlie
existence of a
denies.
existence of a decree in favour of the defendant, in a suit
A against
"her'ftan
other
decrees
mentioned in section forty-one, are relevant
section 41.
Judg'
or
way
by which C alleged the
relevant, but
it is
not conclusive
exists.
orders
sections
is
land, in
or
forty,
decrees,
forty-one
other
and
than
those
forty-two,
are
1
The Indian Evidence Act, irrelevant,
unless
the
decree,
a
in issue,
is
fact
1872.
of such judgment, order or
existence
those
40-42.
when releIllustrations.
A
and
of them.
B
separately sue
for
a
vant.
wHch
libel
reflects
upon
each.
in each case says, that the matter alleged to be libellous
and the circumstances are such that
is true,
men-
under some other seSfon™
or is relevant
provision of this Act.
(a.)
7
1
it is
probably true in each
case, or in neither.
A
C
obtains a decree against
failed to
make out
for
his justifi.cation.
damages on the ground that C The fact is irrelevant as between
BandO.
A
(6.)
B
prosecutes B, for adultery, with 0, A's wife.
B
denies that
C
is
Afterwards C
is
prosecuted for bigamy in marrying
C
lifetime.
A's wife, but the court convicts
during A's
says that she never was A's wife.
The judgment against B
A
of adultery.
B
is
irrelevant as against 0.
cow from him. B is convicted. A, afterwards, sues G for the cow, which B had sold to him before As between A and C, the judgment against B is his conviction. (c.)
prosecutes
B
for stealing a
irrelevant.
A
(d.)
has obtained a decree for the possession of
C, B's son, murders
The
A
exi3tence_of the
B
land against
in consequence.
judgment
is
relevant, as
showing motive
for a
may show
that
crime.
44.
Any
party to a suit or other proceeding
any judgment, section
forty,
or
order
forty-one
which
decree or
under
relevant
is
Fraud or obtaining'"
judgment,
and which has been
fqrty-two,
proved by the adverse party, was delivered by a Court not
competent to deliver
it,
or was obtained
Opinions of third Peksons, 45.
When
when
or collusion,
„
relevant.
.
J
,
•
1
,
-J
(.
1
the opinions upon that
Such persons
point of persons specially.,
are called experts. Illustrations,
The question
of experts,
1
of science or art, or as to identity ot hand-
skilled in such foreign law, science or art, are relev3,nt Tacts.
(a.)
b^pro^d
the Court has to form an opinion upon a point Opinions
of foreign law, or writing,
by fraud
petency of
is,
whether the death of
A was
caused by poison.
'
,
.
,. ''
The Indian Evidence Act, 1872.
172
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant. (6.) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. (c.) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons, are relevant. Facts bearing upon opinions of experts.
46.
Facts,
not
otherwise
relevant,
are
relevant
if
they '
.
Support Or are inconsistent with the opinions of experts, when ^^^j^ opinions are relevant.
TQ,usira,tions.
The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certaiu symptoms which experts afBrm or deny to be the symptoms of that poison, is relevant. question is, whether an obstruction to a harbour is (6.) The caused by a certain sea-wall. The fact that other harbours similarly situated in other resnects, (a)
but where there were no such sea-walls, began to be obstructed at about the same time is relevant. Opinion as to
handwriting,
when
relevant.
When the Court has to form person by whom any document was 47.
an opinion as to written
the
or signed, the
opinion of any person acquainted with the handwritino- of the person by whom it is supposed to be written or signed that
it
was
or
was not written or signed by that person,
is
a
relevant fact.
Explanation.
—A person
is
said to be acquainted with the
handwriting of another person write, or
when he has
when he has seen
that person
received documents purporting to be
— The Indian Evidence Act, 1872. by
written
173
person in answer to documents written by
tliat
himself or under his authority and addressed to that person,
when,
or
ordinary course
the
in
of
documents
business,
purporting to be written by that person have been habitually
submitted to him. IWasiraiion.
The question
is,
wtether a given
letter is in
tte handwriting of A,
a merchant in London.
B
A
and received
clerk,
D
a merchant in Calcutta,
is
is
letters
whose duty
it
B's broker, to
who has
written letters addressed to
purporting to be written by him.
was to examine and
whom B
porting to be written by
A
file
B's
C
B's
is
correspondence.
habitually submitted the letters pur-
for the
purpose of advising with him
thereon.
The opinions of B, in the handwriting
ever saw 48.
D
and of
A
on the question whether the
are relevant, though neither B,
letter is
D
C nor
A write.
When
Court has
the
to
form an opinion as to the .
,
,
.
existence of any general custom or right, the opmions, as to
the existence of such custom or right, of persons
know
be likely to
of
its
existence if
it
Opinion as to exist-
.
who would
existed, are relevant.
ence of "ustom^ '^^^^ ^^^' y^rA.
.
.
.
Uxplanation.—The expression 'general custom includes customs or rights
common
to
or right'
any considerable
class
of persons. HhistraUon.
The
right of the villagers of a particular village to use the water of
a particular well 49.
When
is
a general right within the meaning of this section.
the Court has to form an opinion as to
the usages and tenets of any body of the
constitution
and
government
men of
Opinions
or family,
any
^ages,
religious
or
charitable foundation, or
t™^'^'
^j^-'
vant.
the meaning of words or terms used in particular districts or
by
particular classes of people,
the opinions of persons having special means of knowledge thereon, are relevant facts. 50.
When
relationship
the
Court has
to
form
an opinion as
to
the
of one person to another, the opinion, expressed
Opinion tionship,
:
The Indian Evidence Act, 1872.
174 when
rele-
by conduct,
existence of such relationship, of any
as to the
person
who, as a member
special
means of knowledge on the
family or otherwise, has
of the
subject, is a relevant fact
Provided that such opinion shall not be suf&cient to prove a marriage in proceedings under the Indian Divorce Act, or in
under
prosecutions
hundred and ninety-four,
four
section
four hundred and ninety-iive, four hundred and ninety-seven or four
hundred and ninety-eight of the Indian Penal Code. JUusirations.
The question
(a.)
The
married persons,
The
(6.)
fact that
question
A was
A and B
were married.
and treated by their
they were usually received
fact that
friends as
whether
is,
is,
is relevant.
whether
A was
The
the legitimate son of B.
always treated as such by the members of the family,
is relevant.
Grounds
51.
Whenever the opinion
any living person
of
is
rele-
of opinion
when
rele-
vant, the grounds on
which such opinion
is
based are also
vant.
relevant. likhshration.
An
expert
for the
may
give an account of experiments performed
by him
purpose of forming his opinion.
Chaeactee when eelevant. In
52.
civil
In
civil cases,
the fact that the character of any person
cases character to
concerned
prove conduct im-
conduct imputed to him,
puted, irre-
such character appears from facts otherwise relevant.
is
such as to render probable or improbable any is
irrelevant,
except in so
far
as
levant.
In criminal cases, pre-
vious good character
53.
In
accused 54.
is
criminal
the
proceedings,
that
fact
the
person
of good character, is relevant.
In criminal
proceedings,
the
fact
that
the
accused
relevant.
In criminal proceedings previous conviction relevant,
but not previous
bad character,
cept in reply.
person has been previously convicted of any offence
vant
;
but the fact that he has a bad character
is
is
rele-
irrelevant,
unless evidence has been given that he has a good character, in which case
it
Eayplanation.
becomes
— This
relevant.
section
does
not
which the bad character of any person
ex-
issue.
apply to is
itself
cases
in
a fact in
TJu Indian Evidence Act, 55. is
In
civil cases,
xZ"] 2.
175
the fact that the character of any person
Character
such as to affect the amount of damages which he ought damages"^
to receive, is relevant.
Explanation.
and
fifty-five,
—In
sections iifty-two,
the word
and disposition
;
'
character
but evidence
'
may
fifty-three,
fifty-four
includes both reputation
be given only of general
reputation and general disposition, and not of particular acts
by which reputation
or disposition were shown.
—
:
——
;
;
;
:
The Indian Evidence Act, 1872.
176
Paet
II.
ON PEOOF. Chaptee Facts judidaily noticeable
proved. Facts of
Court must ciafnotice,
Xo
56.
Facts which need not be proved.
III.
fact of whicli
the Court will take judicial notice
need be proved.
The Court
^7. facts
shall take judicial notice of
the following
:
(!)
laws Or rules having the force
All
law now or
of
heretofore in force, or hereafter to be in force, in
any part
of
British India (2.)
AU
public Acts passed or hereafter to be passed by
Parliament,
and
all
and
local
personal
Parliament to be judicially noticed (3.)
Articles of
(4.)
The course
War
for
Acts directed
:
Her Majesty's Army
of proceeding
time being relating thereto
(four), 1.
— The word
'
Navy
and of the
Laws and Eegulations
established under the Indian Councils' Act, or
Explanation.
or
of Parliament
Councils for the purposes of making
for the
by
any other law
:
Parliament,' in clauses (two) and
includes
The
Parliament
of
the
United
Kingdom
of
Great
Britain and Ireland
3.
The Parliament of Great Britain The Parliament of England
4.
The Parliament
5.
The Parliament of Ireland
2.
(5.)
of Scotland,
and
:
The accession and the sign manual
of
the Sovereign
:
:
:
:
:
:
:
i77
The Indian Evidence Act, 1872. for the time being of the
United Kingdom of Great Britain
and Ireland All seals of which English Courts take judicial notice
(6.)
the seals of out
the Courts of British India, and of aU Courts
all
British
of
Governor General or
established
Courts of Admiralty and Maritime Jurisdiction and
seals of
of Notaries Public, rized
by the authority of the any Local Government in Council: the
India,
use
to
and
all seals
by any Act
which any person
Parliament
of
is
other
or
autho-
Act
or
Eegulation having the force of law in British India
The accession
(7.)
to
office,
names,
titles,
functions,
and
signatures of the persons filling for the time being any public
any part
office in
ment the
to such
official
The
(8.)
of British India, if the fact
office is notified in
the Gazette, of India,
The
or in
Gazette of any Local Government existence,
title,
and national
flag of
Sovereign recognised by the British Crown (9.)
of the appoint-
every State or
:
divisions of time, the geographical divisions of the
world, and public festivals, fasts and holidays notified in the official
(10.)
Gazette
The
:
territories
under the dominion of the British
Crown The commencement, continuance, and termination hostilities between the British Crown and any other State body of persons (11.)
(12.)
and of and
The names
of the
their deputies
members and
and subordinate
and
assistants,
also of all officers acting in execution of its process,
of all advocates, attornies, proctors, vakils, pleaders
persons authorized by law to appear or act before (13.)
In
all
The
rule of the road,
ct,
or
the Court
officers of
officers
of
and
and other
it
Qe^ oyoI- oaa.
these cases, and also in all matters of public history,
literature, science or art, the
Court
may
resort for its
aid to
appropriate books or documents of reference. If the Court
is
called
notice of any fact,
it
upon by any person
may
refuse
to
do
so,
to
take judicial
unless
and until
—
;
—
;
:
;
:
TIu Indian Evidence Act, 1872.
178
such person produces any such book or document as consider necessary to enable Facts ad-
No
68.
it
do
to
or
may
so.
need be proved in any proceeding whicli thp
fact
parties thereto or their agents agree
not be
it
to
admit at the hearing,
which, before the hearing, they agree
to
admit by any
by any rule of pleading deemed to have admitted by
writing under their hands, or which in force at the time they are their pleadings
Provided that the Court may, in
:
tion, require the
by such
admitted to be proved otherwise than
facts
admissions.
Of oral Evidence.
Chapter IV. Proof of
ALL
59.
its discre-
facts,
except the contents
of documents,
may be
proved by oral evidence,
oral evience.
^^
Oral evi-
evidence
Q\z!^
must, in
cases,i whatever,>
all
;>
be direct
7
_
dencemust be direct.
That If
Say
is to
which could be
to a fact
it refers
seen, it
must be the
I
evidence of a witness
'
i
If
who
evidence of a witness If "
;
to a fact
it refers
who
in
a witness
who
it
says he heard
it
must be the
it
which could be perceived by any other
any other manner,
sense or
saw
which could be heard,
to a fact
it refers
says he
says he
perceived
it it
must be the evidence
by
of
that sense or in that
manner If
it refers
to
an opinion or to the grounds on which that
must be the evidence of the person who holds that opinion on those grounds opinion
is
held, it
Provided that the opinions of experts expressed in any treatise
commonly
such opinions are held, such treatises
if
and the grounds on which may be proved by the production of
offered for sale,
the author
is
dead or cannot be found, or has
become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Coiut regards as unreasonable Provided
also, that, if
:
oral evidence refers to the existence
or condition of any material thing other than a document, the
—
— ;
;
The Indian Evidence Act, Court may,
if
thinks
it
material thing for
its
The contents
the
I'i'] 2.
179 of such
production
inspection.
Chapter V. 61.
require
fit,
;
:
Of documentaey Evidence.
may
of documents
be proved either by
primary or by secondary evidence.
document"!^
Primary evidence means the document
62.
itself
produced
1.
each part
parts,
Where
—Where a document
is
each
a document
counterpart
executing
is
executed in several
primary evidence of the document is
executed in counterpart, each counter-
being executed by one
part
Primary evidence.
for the inspection of the Court.
Explanation
Proof of
or
some of the
parties
only,
primary evidence as against the parties
is
it.
Explanation
2.
—Where
made by one uniform
a
number
lithography, or photography, each
contents
of
common
original,
the rest
;
in
process, as
of
the
documents case
of
are
all
printing,
primary evidence of the
is
but where they are
all
copies
of a
they are not primary evidence of the con-
tents of the original. TXlustration.
A
person
is
shown
to have been
in
possession of a
placards, all printed at one time from one original.
placards of
them 63. (1.)
is is
Any
number
of
one of the
primary evidence of the contents of any other, but no one primary evidence of the contents of the original.
Secondary evidence means and includes Certified copies given
Secondary
under the provisions hereinafter
contained (2.)
Copies made from the original by mechanical processes
which in themselves insure the accuracy of the copy, and copies compared with such copies ;
made from
or
compared with the original
(3.)
Copies
(4.)
Counterparts of documents as agaiast the parties
who
did not execute them (5.)
Oral accounts of the contents of a document given by
some person who has himself seen
it.
evidence.
;
i8o
The Indian Evidence Act, 1872. Tllustraiions.
A
(a.)
contents,
photograph of an original
though the two have not been compared,
was the
that the thing photographed
A
(6.)
machine it
secondary evidence of
is
is
if it
its
proved
original.
copy compared with a copy of a letter made by a copying is
contents
secondary evidence of the
made by
be shown that the copy
the
the
of
letter,
if
machine was made from the
original.
A
(c.)
copy transcribed from a copy, but afterwards compared secondary evidence
but the copy not so com-
with the
original, is
pared
not secondary evidence of the original, although the copy
is
;
was transcribed was compared with the original. Neither an oral account of a copy compared with the original, (i.) nor an oral account of a photograph or machine-copy of the original,
from which
is
Proof of documents by primary evidence.
secondary evidence of the original.
Documents must be proved by primary evidence except
64.
m .
it
,,
j-i
i
t
i_-
the cases heremaiter mentioned.
Secondary evidence
gg
may be
given of the existence.
Cases in
.
which
condition,
secondary evidence reiatmg to
CaseS
documents may be
/^j^
^
or
contents
of
document
a
,,
,
in
.
the
followmg
to
be in the
:
N '
WTjien the Original °
is
shown
or
appears '-'-
possession or power
given.
of the person against
whom
the document
is
sought to be
proved, or of any person out of reach
of,
or not subject to, the process
of the Court, or of
any person
and when,
legally
after
bound
When
it,
the notice mentioned in section
such person. does not produce (5.)
to produce
it;
the existence, condition or
contents of the ori-
gioal have been proved to be admitted in writing
son
against
whom
it
is
sixty-six,
proved or by his
by the
per-
representative ia
interest (c.)
the
When
the original has been destroyed or
party offering
evidence
of its
contents
lost, or
when
cannot, for any
—
;
;
:
;
The Indian Evidence Act, own
other reason not arising from his
duce
easily
When
the origiaal
moveable
When
(e.)
i8i
\%']2.
default or neglect, pro-
in reasonable time
it
(d)
;
;
is
of
is
a
such a nature as not to be
;
the
original
public document within the
meaning of section seventy-four (/.)
copy
When
the original
is
a document of which a certified
permitted by this Act, or by any other law in force
is
in British India, to be given in evidence {g^
When
the originals consist of numerous accounts or
other documents which cannot conveniently be Court,
and the
whole
collection.
In cases
be proved
fact to
(a.),
and
(c.)
contents of the document
In case In case
is
any secondary evidence of the
admissible.
or
(/.)
a certified
evidence
{g'),
may
is
admissible.
copy of the document, but no
other kind of secondary evidence
In case
the general result of the
the written admission
(&.), (e.)
(d,),
is
examined in
is admissible.
be given as to the general result
of the documents
by any person who has examined them,
and who
in the examination of such documents.
66.
is skilled
Secondary evidence of the contents of the documents
refeixed to in section sixty-five, clause
unless the party proposing
has
to
previously given to the
power the dociiment scribed
by law
and
;
is,,
if
(a.),
give such
shall not be
secondary evidence
party in whose
possession
such notice to produce
no notice
is
given
prescribed
it
by
as is
or
pre-
law, then
such notice as the Court considers reasonable under the
cir-
cumstances of the case Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in
any other case in which the Court thinks
dispense with (1.)
Wnen
it
fit
to
:
the document to be proved
is itself
When, from the nature of the case, the must know that he w^l be required to produce (2.)
'
a notice
adverse party it
Rules as to notice to """f^ duce.
;
;
l82
;
The Indian Evidence Act, 1872.
When
(3.)
it
appears or
proved that the adverse party
is
has obtained possession of the original by fraud or force (4.)
When
party or his agent has the original
the adverse
in Court (5.)
When
document
loss of the (6.)
When
of reach Proof of signature
and handwriting of
person alleged to
67.
the adverse party or his agent has admitted the
of,
the person in possession of the document
out
or not subject to, the process of the Court.
document
If a
is
alleged to be signed or to have been
is
by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his
written wholly or in part
have signed or written
handwriting. 68.
document produced.
shall
If a
document
is
required
by law
to be
attested,
it
not be used as evidence until one attesting witness at
Proof of execution of docu-
least has
ment
if
re-
quired by
been called
for the
purpose of proving
its
execution,
there be an attesting witness alive, and subject to the pro-
cess of the Court
and capable of giving evidence.
law to be
If
69.
attested.
no such attesting witness can be found, or
Proof where no
document purports
attesting
Kingdom,
witness found.
it
to
must be
have been executed proved
that
the
in
signature
of the
the
the United
attestation
attesting witness at least is in his handwriting^
if
of
one
and that the
person executing the document
is
in the
handwriting of that person. Admission
70.
The admission
of a party to
an attested document of
of execution
by
party to attested document.
Proofwhen
its
execution by himself shall be sufficient proof of
tion as
against him, though
law to be 71.
it
its
execu-
be a document required
by
attested.
If the attesting witness denies or does not recollect the
attesting
witness denies the execution.
Proof of
document not required by
law to be
execution of the document,
its
execution
be proved by
other evidence. 72.
An
attested 73.
attested
document
may be proved
as
if it
not
required
by law
to
be
was unattested.
In order to ascertain whether a signature, writing, or person by
whom
attested.
seal is that of the
Compari-
written or made, any signature, writing,
son of
may
it
purports to have been or seal
admitted or
—
The Indian Evidence Act,
183
\Z'] 2.
proved to the satisfaction of the Court to have been written or
made hythat person may be compared with the one which
is to
be proved, although that signature, writing, or seal has
not been produced or proved for any other purpose.
The Court may any words or
direct
any person present in Court
sigtiature,
^ai wfth ^-Jted m' proved.
to write
figures for the purpose of enabling the Court to
compare the words or figures so written with any words or figures alleged to
have been written by such person.
Public Documents.
The following documents
74.
Documents forming the
1.
are public documents
Public documents.
:
acts or records of the acts,
of the sovereign authority,
(i.)
of official bodies and tribunals, and
(ii.)
of public
(iii.)
officers, legislative,
judicial,
and executive^
whether of British India, or of any other part of Her Majesty's dominions, or of a foreign country.
Public records kept in India of private documents.
2.
75.
AU
76.
Every public
having the custody of a public
officer
document which any person has a right
demand
that person on
such copy that
it
thereof, as the case
a true
is
may
and subscribed by such and
by law
to
a copy of
with a
fees therefor, together
title,
pnvate documents.
other documents are private.
be,
make use
on payment of the
certificate written at
and such
documents.
the foot of
certificate shall
seal
be dated
with his name and his
whenever such
of a
legal
pXuc
copy of such document or part
officer
shall be sealed,
it
to inspect, shall give
Certified
;
and
officer is
official
authorized
such copies so
certified
shall be called certified copies.
E^plairmUon. duty,
is
— Any
officer
who, by the exercise of
official
authorized to deliver such copies, shall be deemed to
have the custody of such documents within the meaning of this section. Proof of
77.
Such
certified copies
may
be produced in proof of the documents "'^"
contents of the public documents or parts of the public docu-
ments of which they purport
to
tion^of
be copies. co^'i*'^'^
—
:
Proof of documents.
official
:
The Indian Evidence Act, 1872.
184
other
:
:
may
The following public documents
78. p
be proved
as
,,
lOlloWS ^j
Acts, orders or notifications of the Executive Govern-
^
ment
:
of British India in
any of
departments, or of any
its
Local Government or any department of any Local Govern-
ment,
by the
by the heads
records of the departments, certified
of
those departments respectively,
by any document purporting
or
to
be printed by order of
any such Government
The proceedings
(2.)
by the
journals
of the Legislatures,
of those bodies
lished Acts or abstracts, or
by order
of
or
by pub-
copies purporting to be printed
Government
Proclamations,
(3.)
by
respectively,
orders
or
regulations
by Her
issued
Majesty or by the Privy Council, or by any department of
Her
Majesty's Government,
by
or
copies
extracts
contained in the London Gazette, or
purporting to be printed by the Queen's printer
The
(4.)
acts
of
the Executive or the
:
proceedings of the
legislature of a foreign country,
by journals
published
by
their
authority,
received in that country as such, or
by a copy
of the
the seal
country or
some public Act
thereof in
sovereign,
or
or
commonly under
certified
by a recognition
of the Governor General of India,
in Council
The proceedings
(5.)
by a copy thereof, or
of a mimicipal
body in British
of such proceedings, certified
by a printed book purporting
by the
India,
legal keeper
to be published
by
the authority of such body
documents of
Public
(6.)
any other
class
in
a
foreign
country,
by the thereof,
or of
duly
a
original, or
with a
by a copy
certificate
certified
by the
legal
keeper
under the seal of a Notary Public,
British Consul or diplomatic
certified
by the
officer
agent, that the copy
is
having the legal custody of the
— The Indian Evidence Act, 1872.
185
and upon proof of the character of the document
original,
according to the law of the foreign country.
Peesumptions as to Documents.
The Court
79.
-n
1
to be a certificate, certified copy, or
by law declared fact,
to be duly certified
by any officer
with Her Majesty,
who
is
is
any
Presumptionasto genuine"'^"
particular
by any
officer in
[Jged" '^°V^^-
in any Native State in alliance
duly authorized thereto by the
Governor General in Council, such document
is
to be admissible as evidence of
and which purports
British India, or
J-o 11 other document, which
presume every document purporting
shall
.
be genuine
to
substantially in the form
:
Provided that
and purports
to
be executed in the manner directed by law in that behalf.
The Court shall also presume that any any such document purports to be signed
when he
signed
it,
the
officer
by whom
or certified held,
character which he claims in
official
such paper. 80.
Whenever any document
purportiag to be a record or
is
produced before any Court,
memorandum
of the evidence, or
of any part of the evidence, given
proceeding
or
such evidence,
by a witness in a judicial before any officer authorized by law to take or to be a statement or confession by any pri-
Presumpdocuments as record of evidence,
soner or accused person, taken in accordance with law, and
purporting to be signed
such
officer as aforesaid,
that the document
is
by any Judge
by
the Court shall presume
genuine
the circumstances under which
made by the person
or Magistrate, or
signing
that
any statements
as to
was taken, purporting to be are true, and that such evi-
it
it,
dence, statement or confession
;
was duly taken.
of every presume the genuineness " ^ ' document purporting to be the London Gazette, or the Gazette 81.
The Court
shall
of India, or the Government Gazette of any Local Government, or of any colony, dependency, or possession of the British
Crown, or to be a newspaper or a journal, or to be ,
copy of a private Act of Parliament printed by the Queen s Printer, and of every document purporting to be a document
Presumption as to Gazettes, pei^^^pri-
^^%^y^__ ment, and other documents.
1
86
The Indian Evidence Act, 1872. by any law to be kept by any
directed
ment
is
person, if such docu-
kept substantially in the form required by law and
is
produced from proper custody. 82.
Presumption as to
document admissible in
When any document
is
produced before any Court,
purporting to be a document which, by the law in force for the time being in England or Ireland,
would be admissible in
England
without proof of seal or signature.
proof of any particular in any Court of Justice in England or Ireland, without proof of the
thenticating
it,
and
signed
it,
which
Presump-
83.
purports to
seal,
the person signing the judicial or
and the document for
it
presume that such that
it
stamp or signature au-
or of the judicial or of&cial character claimed
by the person by whom shall
seal, or
stamp or signature it
official
shall
be signed, the Court
held,
at
character
the
is
time
genuine,
when he
which he claims,
be admissible for the same purpose
would be admissible in England or Ireland.
The Court
shall
presume that maps or plans pui-porting
tion as to
maps or plans
made by authority of Govern-
ment.
Presumption as to
collections
of laws and reports of decisions.
be made by the authority of Government were so made,
to
and
are accurate
;
but maps or plans made for the purposes of
any cause must be proved 84.
The Court
shall
to
be accurate.
presume the genuineness of every book
purporting to be printed or published under the authority of the
Government
of
any country, and to contain any of the
laws of that country,
and of every book purporting to contain reports of decisions of the Courts of such country. Presump-
85.
tion as to
powers-ofattomey.
The Court
shall
presume that every document purport-
ing to
be a power-of-attorney, and to have been executed
before,
and authenticated by, a Notary Public, or any Court,
Judge, Magistrate, British Consul or Vice Consul, or repre-
Presumption as to certified
copies of foreign judicial
sentative of
Her Majesty
so executed
and authenticated.
or of the
Government of
India,
was
The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Her Majesty's dominions is genuine and 86.
accurate, if the
document purports
records.
ner which
is
certified
to
be
certified in
by any representative
of
any man-
Her Majesty
'
The Indian Evidence Act, 1872. Government
or of the
the
187
of India resident in sucli country to be
manner commonly
in use in that country for
the
certifi-
cation of copies of judicial records. 87.
The Court may presume
that
and that any published map or facts,
to
and which
by
whom
or at
which
it
may
is
produced
for
Presump'°
interest,
chart, the statements of -which
was written and published by the person, and place,
which
on matters of public or general
refer for information
are relevant
any book
books^ °Jf
P^'
'^^^
inspection,
its
at the time
and
purports to have been written
it
or published.
The Court may presume
88.
from a telegraph
that a message,
forwarded
Presump-
whom
such message teWraph purports to be addressed, corresponds with a message delivered messages, for
office to
transmission at the
ports to be sent
person to
the
office
from which the message pur-
but the Court shall not make any presump-
;
tion as to the person
by whom such message was delivered
for transmission.
89.
The Court
presume that every document, called
shall
Presumption as to
for
and not produced
after notice
stamped and executed in the manner 90.
produce, was attested,
to
rec[uired
Where any document, purporting
years old,
is
by
law.
or proved to be thirty
may presume
that the signature and every other part of such document,
which purports is
to be in
and
attested, that it
by the persons by whom
it
was duly executed and
purports to be executed
attested.
Explanation. if
the handwriting of any particular
in that person's handwriting, and, in the case of a
document executed or attested
—Documents
are said to be in proper custody
they are in the place in which, and under the care of the
person with
tody
is
whom
improper
or if the
of docu""^"'^ not
produced from any custody which the Court in Presump-
the particular case considers proper, the Court
person,
due execu-
they would naturally be;
if it is
but no cus-
proved to have had a legitimate
origin,
circumstances of the particular case are such as to
render such an origin probable.
This explanation applies also to section eighty-one.
documents '^""ty years
—
1
88
The Indian Evidence Act, 1872. lUmiSbraiions.
A
(a)
He
has been in possession of landed property for a long time.
produces from his custody deeds relating to the land showing his
title to it.
A
(6.)
is
proper.
produces deeds relating to landed property of which he
mortgagee. (c.)
The custody
The mortgagor
is
in possession.
The custody
is
B
which were deposited with him by
The custody
is
the
proper.
A, a connection of B, produces deeds relating to lands
possession,
is
for safe
in B's
custody.
proper.
Of the Exclusion of deal by documentary
Chapter VI.
Evidence. Evidence
When
91.
of terms of
,
the terms of a contract, or of a grant, or of any
.
.
contracts.
Other disposition of property, have been reduced to the form
^hefdi^-
°^ ^ document,
positions of
law by "
and in
all cases
to be reduced to the
in which any matter
is
required
form of a document, no evidence
property reduced to
shaU be given in proof of the terms of such
document,
other disposition of property, or of such matter,
document
itself,
in which
secondary evidence
or secondary evidence of is
contract, grant or
its
except the
contents in cases
admissible under the provi-
sions hereinbefore contained.
Exception
1.
—When
a public
officer is
be appointed in writing, and when
it is
required
is
to
shown that any par-
ticular person has acted as such officer, the writing
he
by law
by which
notb^^vjd^^^^ ^ ^,^^ j^^^ 2. —Wills -wTiAef-tbe-Indiaa Success on Act m ay
appointed need
Exception
i
be proved by the probate.
Explanation
which the to
are
—This
1.
section
applies
equally to cases
in
contracts, grants or dispositions of property referred
contained in one
document,
and
to
cases in which
they are contained in more documents than one.
Explanation
2.
—Where
there are
more
originals
than one,
one original only need be proved. Explanation
3.
— The statement, in any document whatever,
of a fact other than the facts referred to in this section, shall
not preclude the fact.
admission of oral evidence as to
the same
:
The Indian Evidence Act, 1872.
189
lUnisbraiions,
If a contract be contained in several letters, all the letters in
(as.)
which
it is
contained must be proved.
If a contract
(6.)
is
contained in a
bill
of exchange, the bUl of ex-
change must be proved. If a bill of exchange is dravra in a set of three, one only need
(c.)
be proved,
A
(d.)
contracts, in writing, with
upon certain terms.
A
The
B, for the delivery of indigo
contract mentions the fact that
B had
paid
the price of other indigo contracted for verbally on another occa-
sion.
Oral evidence indigo.
is
The evidence
A gives B
(e.)
offered that
money paid by B.
a receipt for is offered
The evidence
is
When
for the other
admissible.
is
Oral evidence
92.
no payment was made
of the payment.
admissible.
the terms of any such contract, grant or other
disposition of property, or
any matter required by law
to
be
reduced to the form of a document, have been proved accord-
Exclusion of oral agreement.
ing to the last section, no evidence of any oral agreement or
statement shall be admitted, as between the parties to any
such instrument or their representatives in purpose of contradicting, varying, adding
interest, for
subtracting
or
to,
the
from, its terms Proviso.
lidate
(1.)
—^Any
fact
may
be proved which would inva-
any document, or w'hich would
any decree or order relating thereto tion,
;
any person to
entitle
such as fraud, intimida-
want of due execution, want of capacity in
illegality,
any contracting
party,
want
«)f
failure
of consideration,
or
mistake in fact or law. Proviso as to
(2.)
—The existence
of
any separate
any matter on which a document
not inconsistent with
its
terms,
may be
oral
is silent,
proved.
agreement
and which
is
In consider-
ing whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso
(3.)
—The existence of any separate
constituting a
oral agreement,
condition precedent to the attaching of any
(r/
^90
The Indian Evidence Act, i^T 2. under any such contract, grant or disposition of
obligation
may
property,
Proviso
(4.)
be proved.
—The existence of any
distinct subsequent oral
agreement to rescind or modify any such contract^ grant or disposition
of property,
which such
may be
contract, grant
proved, except in cases in
by
disposition of property is
or
law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso
(5.)
—Any usage
or
custom by which incidents not
expressly mentioned in any contract are usually annexed to contracts of that description,
may be proved
Provided that
:
the annexing of such incident would not be repugnant
to,
or
inconsistent with, the express terms of the contract.
Proviso
(6.)
— Any
may
fact
what manner the language
of a
be proved which
document
is related
shows in to exist-
ing facts. nVmtraiions. (a.)
A
policy of insurance is
from the (6.)
The
is lost.
A
on goods 'in ships from
The goods are shipped
Calcutta to London.'
which
effected
fact that that particular ship
policy, cannot
was made that
was orally excepted
be proved.
B
agrees absolutely in writing, to pay
of March, 1873.
ia a particular ship
Es. 1,000 on the
first
The fact that, at the same time, an oral agreement the money should not be paid till the thirty-first
March, cannot be proved. (c.)
An
estate
called
'
the
Bampur
tea
which contains a map of the property included in the
and was meant {d.)
A
map had to pass
contract,
of
institutes
and
The
sold
by a deed
fact that
land not
always been regarded as part of the estate
certain terms.
as to their value.
a suit against
B
as that provision
that such a mistake
to have the contract reformed.
B
to
A was This
for the
also prays that the contract
its provisions,
may prove
B
is
'
by the deed, cannot be proved.
upon
misrepresentation of
A
sold.
enters into a written contract with
the property of B,
(e.)
estate
work
certain mines,
induced to do so by a feet
specific
may be
performance of a
may be reformed
was inserted in
proved.
it
as to one
by mistake.
was made as would by law
entitle
A him
The Indian Evidence Act, 1872.
A orders
(/.)
B
goods of
by a
igi
which nothing
letter in
said as
is
and accepts the goods on delivery. B sues may show that the goods were supplied on credit
to the time of payment,
A for the price. A for a
term
A
(gi.)
B
still
unexpired.
B
sells
may prove
—
:
'
A
Bought of
a horse for
gives
B
Rs. 500.'
the verbal warranty.
A hires
(fe.)
A
a horse and verbally warranis him sound.
a paper in these words
B
lodgings of B, and gives
a card on which
is
written
Eooms, Ks. 200 a month.' A may prove a verbal agreement that these terms were to include partial board. A hires lodgings of B foy a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the
f
'
A may
subject of board.
'
not prove that board was included in the
terms verbally.
A applies
(i.)
B
the money.
a
suit for the
A and
(_/.)
to
B
for
amount
B make
A upon
by sending a
receipt for
In
keeps the receipt and does not send the money.
A may
prove
this.
a contract in writing to take effect upon the
The writing
happening of a certain contingency. sues
A
a debt due to
A
it.
may show
is left
with
B who
the circumstances under which
was
it
delivered.
When
93.
the language used in a document
ambiguous or
defective, evidence
which would show
its
may
is,
on
•
its face, J-
I'
not be given of facts
meaning or supply
its defects.
Exclusion of evidence to explain
amb^ous document.
JUMstraiions.
A
(a.)
agrees, in writing, to sell
a horse to
B
for
'Es. 1000, or
Rs. 1,500.'
Evidence cannot be given to show which price was to be given.
A
(i.)
deed contains blanks.
Evidence cannot be given of
which would show how they were meant to be 94.
When
and when
may
it
accurately to
not he given to show that
such
filled.
language used in a document applies
it
facts
is
I
plain in
itself.
existing facts, evidence
was not meant
to apply to
to
sells
bighas.'
dence
A
may
against ap-
document
l^f^
facts. Illustration,
A
Exclusion
B,
by
deed,
•
my
has an estate at
estate
Bampur
at
Eampur
containing
containing 100 bighas.
100 Evi-
not be given of the fact tbat the estate meant to be sold
was one situated
at a different place Bind of a different size.
192
The Indian Evidence Act, 1872.
Evidence
When
95.
language used
ment unmeaning in reference to existing
but
document
in a
as to docu-
is
plain in
itself,
unmeaning in reference to existing facts, evidence maybe given to show that it was used in a peculiar sense. is
facts.
IJluglraiion.
A sells to B, by deed, my house in Calcutta.' A had no house in Calcutta, but it appears that '
B
Howrah, of which
had been
he had a house at
in possession since the execution of
the deed.
These
facts
may be proved
to
show that the deed
related to the
house at Howrah. Evidence
When
96.
the facts are such that the language used might
as to appli-
cation of whicli can apply to
one only of several
have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or
may
things, evidence
be given of facts which show which of
those persons or things
it
was intended
to apply to.
persons or things.
lUiadraiions. (a.)
A
agrees to
sell
two white horses. of
to B, for Es. 1,000,
Evidence
may be
them was meant. (6.) A agrees to accompany
B
'
my
white horse.'
A
has
given of facts which show which
to Haidarabad.
Evidence
may be
given of facts showing whether Haidarabad in the Dekkhan or Hai-
darabad in Sindh was meant. Evidence as to application of
language to one of two sets of facts,
97.
When
language used applies partly to one set of
the
existing facts,
and partly
the whole of
it
may be
to another set of existing facts, but
does not apply correctly to
given to show to which of the two
either, it
evidence
was meant
to
to
neither of which the whole correctly applies.
apply. TJkisbration.
A
agrees to seU to
B
'
my
land at
X
in the occupation of T.'
A
has land at X, but not ia the occupation of T, and he has land in the occupation of T, but
it is
not at X.
showing which he meant to Evidence asto^meanillegible
98.
Evidence
yigg^ijje or
may
Evidence
may be
sell.
be
given
to
show the meaning
of
not commonly intelligible characters, of foreign,
obsolete, technical, local,
and provincial expressions, of abbre-
chaiacters,
&c.
given of facts
viations and of words used in a peculiar sense.
The
Indian Evidence Act, 1872.
193
IWvLsiratwn,.
A, a sculptor, agrees to
and modelling
meant 99.
to
tools.
sell to
B
Evidence
my mods.' A has
'aU
may be
both models
given to show which he
sell.
Persons
who
representatives in
are not parties to a document, interest,
may
or their
give evidence of any facts
Who may dem;e^f
tending to show a contemporaneous agreement varying the
^7^^"'
terms of the document.
terms of document. 'nkisbtaiiom,.
A
and
cotton, to
B make
a contract in writing that
be paid for on delivery.
At
B
shall sell
A
the same time they
certain
make an
oral agreement that three months' credit shall be given to A.
conld not be shown as between C, if
it
A
and B, but
it
This
might be shown by
affected his interests.
100. Nothing in this chapter contained shall he taken to afifect
any
of
the provisions
of the
Indian Succession Act
(X. of 1865)' as to the construction of wills. ^
Saving of of Indian^ Successsion Act relating to wills.
— The Indian Evidence Act, iS/i.
194
Part
III.
PEODUCTION AND EFFECT OF EVIDENCE. Of the Btjeden of Proof.
Chapter VII. Burden of
Whoever
101.
prooC
any
legal
right
facts -which
When
he
desires
or liability dependent on the
asserts,
a person
fact, it is said
any Court to give judgment as to
must prove that those
bound
is
existence
of
facts exist.
to prove the existence
of
any
that the burden of proof lies on that person. Tdustraiwns.
(a.)
for a
A
desires
a Court to give judgment that
crime which
A
says
A must prove that B (J)
A desires
B
be punished
has committed the crime.
a Court to give judgment that he
by reason
and which B denies, to be true. A must prove the existence of those
to cer-
is entitled
of facts which he
asserts,
facts.
The burden of proof in a suit or proceeding lies on person who would fail if no evidence at all were given
102.
On whom proof lies.
shall
has committed.
tain land in the possession of B,
burden of
B
that
on either
side.
IWastraiicns. (a.)
A
A
sues
asserts,
B
was
for land of
left to
A
which
by the
B
is
in possession, and which, as
will of C, B's father.
If no evidence were given .on either side,
B
would be
entitled to
retain his possession.
Therefore the burden of proof (&.)
A
sues
B
for
is
on A.
money due on a bond.
The execution of the bond is admitted, but obtained by fraud, which A denies. If no evidence were given on either side,
bond
is
not disputed and the fraud
Therefore the burden of proof
is
is
A
B
it
would succeed, as
not proved.
on B.
says that
was
the
The Indian Evidence Act, The burden
103.
1872.
195
of proof as to any particular fact lies on
that person
who wishes
unless
provided by any law that the proof of that fact
it is
the Court to believe in
its existence,
Burden of plrdcufar" ^^'^'
on any particular person.
shall lie
IWastration.
A
(a.)
B
prosecutes
B
for theft,
A must
admitted the theft to 0.
B
and wishes the Court to believe that prove the admission.
wishes the Court to believe that, at the time in question, he was
He must
elsewhere.
104.
The
prove
burden
it.
proving
of
any
fact
necessary to
l*®
proved in order to enable any person to give evidence of any
g ^j „ proving
{
be proved to
fact to
other fact
is
on the person who wishes
to give
such evidence,
make Illustrations.
A
(a.)
evidence .
wishes to prove a dying declaration by B.
A
must prove
admissible.
B's death. (b.)
lost
A
wishes to prove, by secondary evidence, the contents of a
docum«it.
A
must prove
105.
When
that the document has been lost.
a person
is
accused of any offence, the burden
of proving the existence of circumstances bringing the case
^^^^
°^
that case
within any of the General Exceptions in the Indian Penal comes Code, or within any special exception or proviso contained in
any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations. (a.)
A, accused of murder, alleges that, by reason of unsoundness of
mind, he did not know the nature of the
The burden
of proof is
act.
on A.
A, accused of murder, alleges that,
(6.)
by grave and sudden pro-
was deprived of the power of self-control. The burden of proof is on A. of the Indian Penal (c.) Section three hundred and twenty-five Code provides, that whoever, except in the case provided for by sec-
vocation, he
tion three
thirty-five, voluntarily causes grievous
hurt,
be subject to certain punishments.
shall
A
hundred and
is
charged with voluntarily causing grievous hurt under section
three hundred and twenty-five.
^'ceptions.
The Indian Evidence Act, 1874.
196
The burden section three
106. "When any fact
Burden of fact especially within
of proving the circumstances, bringing the case under
hundred and
thirty-five, lies is
on A.
^ny person, the burden of proving that
I'now-
knowledge of
especially within the
upon him.
fact is
Ilhish-ations.
When
(a.)
a person does an act with some intention other than
that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (6.) A is charged with travelling on a railway without a ticket.
The burden Burden of
When
107.
the question
shown that he was
^T^^ it is
deaa"of
have been
108.
and
in thirty
B^^^" f proving that person isaiivewho
been h
d
of for seven
Burden of proof as to
it
y®^^^
When
partners,
landlord
and tenant,
^he person
who amrms
^^^^
in rela-
acti've
con
him
if
he
is alive is
on
-^ it.
whether persons are partners,
is
landlord and tenant, or principal and agent, and
^hown that they have been
it
acting as such, the
has been
burden of
proving that they do not stand, or have ceased to stand, to
each other
m those relationships respectively, is
who affirms it. HQ. When
the question
is
_
111-
^
which he
is
shown
of proving that he
is
not the owner
that he
Where
is
on the person
whether any person •'
_
-vybo affirms
is
it.
alive or dead,
is
naturally have heard of
*^^ question
proof as to ownership.
where
man
the burden of proving that he ju
i
l^i"^*i6n
tions
burden
whether a
Burden of
faith
alive within thirty years, the
is
of anything of
Proof of
or dead,
the question
principal
good
is alive
on the person who af&rms
alive,
i
relation-
ship in the cases of
man
is
is
^y t^ose who would
^^^'
whether a
is
on him.
proved that he has not been heard of for seven
is
had been ,
ticket is
dead
°^ proving that he
known
had a
of proving that he
to
^
is
owner
be in possession, the is
on the person
not the owner,
there is a question as to the good faith of a
transaction between parties, one of
whom
stands to the other
in a position of active confidence, the burden of proving the
good faith of the transaction
is
on the party who
*^°^ °^ active confidence.
fidence.
is
in a posi•
Illustrations. (a.)
The good
faith
of
a sale by a
question in a suit brought by a client.
good
faith of the transaction is
client
to an attorney
is
The burden of proving
on the attorney.
in
the
—
;
;
;
;
The Indian Evidence Act, The good
(5.)
is
faith of
the good faith of the transaction
The
fact
\%'] 2.
proof that he
is
and any
marriage between his mother
mother remaining unmarried,
the
197
was born during the con-
man, or withia two hundred and eighty days tion,
;
by the son. The burden of proving is on the father.
that any person
tinuance of a valid
;
a sale by a son just come of age to a father
in question in a suit brought
112.
;
after its dissolu-
shall
be conclusive
the legitimate son of that man, unless
it
Birth
dur-
rw^co'n^^l^^'^e
legitimacy.
can
be shown that the parties had no access to each other at any
when he
time
113. of
A
could have been begotten.
notification in the Gazette of India that
ceded to any Native
been
has
British territory
any portion State,
Proof of territory.
Prince or Euler, shall be conclusive proof that a valid cession of such territory took place
at
the date mentioned in such
notification.
114.
which the
The Cour* may presume the existence it
fact
thinks likely to have happened, regard being had to
common
public
any
of
course
human conduct and
of natural events,
and private business in
their relation
to
the facts of
the particular case. IlVastrations.
The Court may presume (a.) That a man who is in possession
of stolen goods soon after the
theft is either the thief, or has received the stolen, unless (J.)
he can account
That an accomplice
is
goods knowing them to be
for his possession
unworthy of credit, unless he
corrobo-
is
rated in material particulars (c.)
That a
bill
of exchange, accepted
or
endorsed, was
siccepted
or endorsed for good consideration id.)
That a thing or
state of things
which has been shown to be in
existence within a period shorter than that within which such things
or states of things usually cease to
and
(e.)
That
(/.)
That the common course
judicial
official acts
exist, is still in existence
have been regularly performed
of business
has been followed in
particular cases {g.)
That evidence which could be and
produced, be unfavourable to the person {Ji.)
That
if
a
man
refuses
to
is
not
produced would,
who withholds
answer a
if
it
question which
he
is
Court
may
existence ^'"
'^^^^
: :
;
^9^
:
:
:
:
The Indian Evidence Act, 1872. not compelled to answer by law, the answer, favourable to (i.)
would be un-
if given,
him
That when a document creating an obligation
is in
the hands
of the obligor, the obligation has been discharged.
But the Court
shall also
have regard to such
facts as the following,
maxims do or
not apply to the par-
in considering whether such
do*
ticular case before it
As
to illustration
rupee soon after specifically,
but
was
it is
(a)
—A
shop-keeper has in
stolen,
his
and cannot account for
a marked
tiU
possession
its
continually receiving rupees in the course of his
business;:
As
—
(6) A, a person of the highest character, is tried a man's death by an act of negligence in arranging cer-
to illustration
for causing
tain machinery.
B, a person of equally good character,
who
also
took part in the arrangement, describes precisely what was done, and
admits and explains the
As A,
to illustration (6)
B and
common
carelessness of
—A crime
is
A
and himself:
committed by several persons.
C, three of the criminals, are captured on the spot
Bach gives an account
apart from each other.
and kept
of the crime impli-
cating D, and the accounts corroborate each other in such a
manner
as to render previous concert highly improbable
As
man
to illustration
of business.
(c)
—A, the
drawer of a biU of exchange, was a
B, the acceptor, was a young and ignorant person,
completely under A's influence
As
to illustration {&)
—It
course five years ago, but
to illustration
it
proved that a river ran in a certain
is
known
might change
since that time which
As
is
(e)
—A
its
that there have been floods
course
judicial act, the regularity of
which
question, was performed under exceptional circumstances
As It
is
to illustration (f)
shown
—The question
is,
whether a
letter
is in
:
was
received.
to have been posted, but the usual course of the post was
interrupted by disturbances
As
to illustration (g)—
A
man refuses
to produce a
document which'
would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family: As to illustration (fe) A man refuses to answer a question which
—
he
is
not compelled by law to answer, but the answer to
cause loss to
him
it
might
in matters unconnected with the matters in relation
to which he is asked
As
to illustration
{%)
— A bond
is
in possession
the circumstances of the case are such that he
of the obligor, but
may have
stolen
it.
The Indian Evidence Act, 1872.
199
Chapter VIII.^Estoppel.
When
115.
omission, to
person has, by his declaration,
one
believe a tiling
and
to be true
another
or permitted
intentionally caused
act
Estoppel.
person
upon such a
to act
or
belief,
neither he nor his representative shall be allowed, in any suit or proceeding between himself sentative, to
and such person or
deny the truth of that
his repre-
thing.
IJhiijii/ration.
A
intentionally
and
falsely leads
B
land
to believe that certain
B to buy and pay for it. The land afterwards becomes the property of A, and A seeks
belongs to A, and thereby indnces
to set
aside the sale on the ground that, at the time of the sale, he had no title.
He must
116.
not be allowed to prove his want of
title.
Notenant.of immoveable property, or person claiming
through such tenant, tenancy,
shall,
be permitted to
during the continuance of the
deny that the
of such
landlord
tenant had, at the beginning of the tenancy, a
Estoppel '^"^'"'
°
title
to
such
immoveable property; and no person who came upon any
immoveable property by the
permitted to deny that such person
session thereof, shall be
had a
license of the person in the pos-
,
title to
.
such possession at the time when
was given. 117.
No it ;
deny that
IT such license
ox
acceptor of a bUl of exchange shall be permitted '
to deny that the drawer
endorse
1
had authority
to
draw such
bill or to
nor shall any bailee or licensee be permitted to
his bailor or licensor had,
at
the
time
when
bailment or license commenced, authority to make such
ment
bail-
or grant such license.
Explarmikm
(1.)
—The
deny that the biU was it
the
a biU of exchange
acceptor of
really
drawn
may
by the person by whom
purports to have been drawn.
Explanation
(2.)
—If
a bailee delivers the goods
a person other than the bailor, he
had a right to them as against the
may
bailed to
prove that such person
bailor.
^\°
^
person in possession.
Estoppel of acceptor of bill of bailee, or
^"^™^^^-
— 200
The Indian Evidence Act, 1872. Of Witnesses.
Chapter IX.
Who may
118. All persons
testify.
shall
Court considers that
be competent to testify unless the
thej'^
are prevented from understanding
the questions put to them, or from giving rational answers to those questions,
by tender
extreme old age,
years,
disease,
whether of body or mind, or any other cause of the same kind.
Explanation. unless he
is
—A
lunatic
is
not
incompetent to
testify,
prevented by his lunacy from understanding the
him and giving rational answers to them. 119. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs but such writing must be written and the signs made in open Court. Evidence so questions put to
Dumb
wit-
nesses.
•
;
given shall be deemed to be oral evidence.
/
Parties to
120.
In
all
civil
proceedings the parties to the
suit,
and
civil suit,
and
their
the husband or wife of any party to the
wives or hnsbands.
petent witnesses.
Husband
son, the
or wife of person under criminal trial.
Judges and Magistrates.
suit,
shall be
com-
In criminal proceedings against any per-
husband or wife of such person,
respectively,
shall
be a competent witness. 121.
No Judge
or Magistrate shall, except
order of some Court to which he to
is
upon the
special
subordinate, be compelled
answer any questions as to his own conduct in Court as
such Judge or Magistrate, or as to anything which came to
knowledge in Court as such Jiidge or Magistrate but he may be examined as to other matters which occurred in his his
;
presence while he was so acting. TU.uiiraiicm.fi.. (a.)
sition
A, on his trial before the Court of Session, says that a depoB cannot be was improperly taken by B, the Magistrate.
compelled to answer questions as to
this,
except upon the special
order of a superior Court. (6.)
A is
accused before the Court of Session of having given
evidence before B, a Magistrate.
B
cannot be asked what
A
false said,
except upon the special order of the superior Court. is accused before the Court of Session of attempting to (c.)
A
—
The Indian Evidence Ac^, i8y2. murder a Police
B may
201
ofBcer whilst on his trial before B, a Sessions Judge.
be examined as to what occurred.
122.
No
peUed to
who
person
is
or has been married, shall be
any communication made
disclose
marriage by any person to
whom
he
is
to
or has
com- communi-
him during
been married
;
^u^ng mai>iage.
nor shaU he be permitted to disclose any such communication, unless the interest,
person
who made
consents, except in suits between married persons,
or proceedings
which one married person
in
any crime committed against the
No
123.
affairs
the
one shall
be
is
prosecuted for
give
any evidence
other.
permitted to
from unpublished
derived
or his representative in
it,
official
records
relating
to
any
Evidence of state?'"
of State, except with the permission of the ofBcer at
head
of
the department concerned,
withhold such permission as he thinks
No
124.
official
siders that the public interests
No
shall give
or
fit,
public officer shall be compelled to disclose com-
munications made to him in
125.
who
confidence,
would
Magistrate or Police
suffer
when he
by the
officer shall
con-
official
cations,
disclosure.
be compelled to
informa-
say whence he got any information as to the commission of c°^mis-°
any •'
s'°" °^
offence.
offences.
No
barrister, attorney,
pleader or vakil, shall at any
time be permitted, unless with
his client's express consent, to
126.
any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has disclose
become acquainted in the course and
for the purpose of his
professional employment, or to
disclose
him to his client employment :
and
in the course
Provided that nothing in this
any advice given by
for the
section
purpose of such
shall
protect from
disclosure •
,Q.)
Apy
sich communication made in furtherance of any
criminal purpose '^ (2.)
Any
fact
;
observed by any barrister, pleader, attorney,
profes-
^"n^J.^?™ tion.
202
The Indian Evidence Act, 1872. or vakfl, in the
course of his
employment as such, showing
that any crime or fraud has heen committed since the com-
mencement It
is
of his employment.
immaterial whether the attention of such barrister,
attorney or vakil was or was not directed to such fact by or
on behalf of his Explanation.
client.
— The
tinues after the
obligation
employment has
A, a
gery,
As
client,
man known
purpose, this communication
A, a
client,
session of property
you to
'
I have committed for-
to defend me.'
the defence of a
(6.)
—
says to B, an attorney
and I wish you
to be guilty is not a criminal
protected from disclosure.
is
says to B, an attorney
by the use
—
'
I wish to obtain pos-
of a forged deed
on which I request
sue.'
This communication, being made in furtherance of a purpose, (p.)
con-
ceased.
IllMstrations. (fls.)
in this section
stated
is
criminal
not protected from disclosure.
A, being charged with embezzlement, retains B, an attorney,
to defend him.
In the course of the proceedings,
B
observes that
an entry has been made in A's account-book, charging A with the sum said to have been embezzled, which entry was not in the book, at the commencement of his employment. This being a fact observed by
B
in the course
showing that a fraud has been committed since of the proceedings, Sectioni26 to apply to ters,
&c.
Privilege
by'vohn-'^ teering evidence.
127.
The
it is
not protected from disclosure.
provisions
of section one
barristers, pleaders, attorneys
own
hundred and twenty-
apply to interpreters, and the clerks or servants of
gj^ shall
128.
employment the commencement of his
If
any party
and
vakils.
to a suit gives
evidence therein at his
instance or otherwise, he shall not be
consented thereby to such disclosure as tion one hundred and twenty-six or proceeding calls
witness,
he
any such
shall be
;
and
is if
deemed
to
have
mentioned in
any party
sec-
to a suit
barrister, attorney, or vakil as
deemed
to
have consented to such
a
dis-
closure only if he questions such barrister, attorney or vakfl.
on matters which, but at liberty to disclose.
for
such question, he would not be
:
The Indian Evidence Acf, i8y2.
No
129.
any
203
one shall be compelled to disclose to the Court ConSden-
communication which has taken place be- munk™ ™"^ tween him and his legal professional adviser, unless he offers J'°°j confidential
may be compelled to communications as may appear to the be known in order to explain any evidence
himself as a witness, in which case he
any such
disclose
Court necessary to
which he has given, but no 130.
Ho
witness
who
pelled to produce his
document pledgee
in
virtue
is
mortgagee,
or
which might tend
others.
not a party to a suit shall be com-
title-deeds
of
which
or
advisers.
any property,
to
he
or
any
any property J -r r J
holds
as
Production deeds'^of «''?"essnot a party.
any document the production of
to criminate
him, unless he has agreed in
them with the person seeking the production of such deeds or some person through whom he claims.
writing to produce
131.
No
one shall be compelled to produce documents in
his possession
which any other person would be
entitled to
refuse to produce if they were in his possession, unless such last
mentioned person consents to their production.
A
Production
ments ^therpe" son, having possession,
not be excused from answering any
could re-
question as to any matter relevant to the matter in issue in
produce.
132.
any
suit
witness
or
shall
any
in
civil
or
criminal
proceeding,
upon the
ground that the answer to such question will criminate, or
Witness cused from
may
tend directly or indirectly to criminate, such witness, or on ground that it will expose, or tend directly or indirectly to expose, *g'j.^i']i
such witness to a penalty or forfeiture of any kiud
criminate.
Provided that no such answer, which a witness shall be
Proviso.
compelled to give, shall subject him to any arrest or prosecution,
or be
except
proved against him in any criminal proceeding, prosecution
a
for
giving
false
evidence
by
such
answer. 133.
An
accomplice shall be a competent witness against
an accused person because
it
;
and a conviction
is
not
illegal
Accom-
merely ^
"^^'
proceeds upon the uncorroborated testimony of an
accomplice. 134.
No
particular „
number
of witnesses
be required for the proof of any
shall
in any case
Number witnesses
,
fact.
of
—
The Indian Evidence Act, 1872.
204
Chaptee X. Order of
jij^g
^35
Of the Examination of Witnesses.
order
examined
witnesses,
time being relating to
shall
witnesses
whicli
in
production and exami-
produced ^
are
and
be regulated by the law and practice for the civil
and criminal procedure respec-
absence of any such law, by the discretion
tively, and, in the
of the Court. Judge
to
When
136_
give evidence of
any
ask the party proposing to give the
e'vi-
either party proposes to
the Judge
may
to admissi-
fact,
evidence.
dencB in what manner the alleged relevant
and the Judge
;
that the fact,
if
shall
fact, if
proved, would be
admit the evidence
is
admissible only upon proof of
some other
which evidence fact,
mentioned fact must be proved before evidence fact
mentioned,
first
proof of such
he thinks
proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of
•.
if
fact,
unless
is
such last-
given of the
the party undertakes
and the Court is
satisfied
to
give
with such under-
taking.
If the relevancy of one alleged fact depends alleged fact being tion, either
first
proved, the Judge may, in his discre-
permit evidence of the
the second fact
is
upon another
first fact
to
be given before
proved, or require evidence to be given of
the second fact before evidence
is
given of the
first fact.
Hhish-ations. It is proposed to prove a statement about
(a.)
a person alleged to be dead, which, statement
a relevant fact by is
relevant
under
section thirty-two.
The
fact that the
person
is
dead must be proved by the person
proposing to prove the statement, before evidence
is
given of the
statement. It
(6.)
is
proposed to prove, by a copy, the contents of a document
said to be lost.
The
that the original is lost
fact
must be proved by the person
proposing to produce the copy, before the copy (c.)
been
A
is
is
produced.
accused of receiving stolen property knowing
it
to have
stolen.
It is
proposed to prove that he denied the
property.
possession
of the
The Indian Evidence Act, 1872.
205
The relevancy of the denial depends on the identity of the property. The Court may in its discretion, either require the property to be identified before the denial
of the possession
is
proved, or
permit the denial of the possession to be proved before the property is identified. (d.)
It is
proposed to prove a
fact (A)
which
the cause or efiect of a fact in issue.
proved, or
A
either permit
may
effect of
exist before the
the fact in issue.
to be proved before B,
require proof of B,
been
There are several interme-
can be regarded as the cause or
The Court may is
said to have
and D) which must be shown to
diate facts (B, fact (A)
is
C and D
or
D
before permitting
proof of A.
The examination
137.
of a witness
by the party who
him shall be called his examination-in-chief. The examination of a witness by the adverse party
calls
chief.
shall be
of
Cross'-ex-
"""^
called his cross-examination.
The examination
Examlna-
a witness, subsequent
the
to
cross-
examination by the party who called him, shall be called his
'°"'
Re-exami°^''°°-
re-examination. 138. Witnesses
shall
the adverse party
so
be
first
desires)
examined-in-chief, then
then
cross-examined,
(if
the
(if
party so desires) be re-examined.
The examination and
cross-examination
must
relate
to
Order of tions.
Direction of re-examination.
relevant facts, but the cross-examination need not be confined to the facts to
which the witness
testified
on his ex-
amination-in-chief.
The re-examination
shall
be directed to the explanation of
matters referred to in cross-examination
by permission
is,
the
adverse
;
and
if
new matter
of the Court, introduced in re-examination,
party
may
further
cross-examine
upon
that
matter.
A
summoned to produce a document does not become a witness by the mere fact that he produced it, and 139.
person
cannot be cross-examined unless and until he
is
called as a
witness.
140. Witnesses
re-examined.
to
character
may ^
be cross-examined and
Cross-ex-
of person '^^'^j'^
'°
produce a document. Witnesses to character.
206
The hidian Evidence Act, 1872.
Leading
Any
141.
question suggesting the answer which the person
questions.
putting
wishes or expects to receive,
it
is
a leading
called
question.
When they
142.
Leading questions must not,
objected
if
to
by the
must not be
adverse party, be asked in an examination-in-chief, or in a
asked.
re-examination, except with the permission of the Comt.
The Court
permit leading questions as to matters
shall
which are introductory or undisputed, or which have, in
its
opinion, been already sufficiently proved.
When
they
asked.
cross-examina-
be asked in
tion.
Evidence
144.
as to
matters in
may
143. Leading questions
may be
Any
witness
whether any
may be
whUst under examination,
asked,
grant or other disposition of property,
contract,
writing.
as to
which he
giving evidence, was not contained in a
is
document, and
if
any statement
as to
he says that
it
was, or
if
he
is
about to
make
the contents of any document, which, in
the opinion of the Court, ought to be produced, the adverse
party
may
document
object to
produced, or until facts have been proved which
is
who
the party
entitle
evidence of
such evidence being given until such
called
secondary
the witness to give
it.
Explanation.
—
^A witness
may
give oral evidence of state-
ments made by other persons about the contents of documents
if
such statements are in themselves relevant
facts.
niuatration.
The question
is,
deposes that he heard of theft,
and I
will
A assaulted B, A say to D— B
whether
'
be revenged on him.'
as showing A's motive for the assault, it,
though no other evidence 145.
Cross-ex-
A
amination
witness
may
statements
previous statements
and relevant to matters
in writing.
being shown contradict
to
This statement
is relevant,
letter.
cross-examined
as
previous
to
in writing, or reduced into writing, in
question, without such
him, or being proved
him by
me
and evidence may be given of
given about the
be
made by him
as to
to
is
wrote a letter accusing
;
but
if it
is
writing
intended
the writing, his intention must, before
;
;
;
The Indian Evidence Act,
207
\%'] 2.
the writing can be proved, be called to those'parts of
it
wbicli
are to be used for the purpose of contradicting him.
When
146.
a
witness
he
cross-examined,
is
addition to the questions hereinbefore referred
may,
in
be asked
to,
to test his veracity
(2)
to discover
(3)
to
shake
who he his
cross-ex-
amination.
any questions which tend (1)
Questions
is,
and what
by
credit,
is
his position in life
injuring
his
;
or
character,
although the answer to such questions might tend directly or
indirectly
directly
or
to
criminate him,
indirectly
to
or
might expose
expose him to
a
or tend
penalty or for-
feiture.
If
147.
any such question
a matter relevant to
relates to
the suit or proceeding, the provisions of section one hundred
When
and thirty-two
compelled
148.
If
shall apply thereto.
any such question
relates to a matter not relevant
to the suit or proceeding, except
of the witness
credit
shall decide
answer is
it,
by
in
so
injuring his
as
far
affects
it
character,
Court
the
whether or not the witness shall be compelled to
and may,
if it
not obliged to answer
thinks it.
fit,
warn the witness that he
In exercising
its
discretion, the
Court shall have regard to the following considerations (1.)
the
Such questions
—
:
are proper if they are of such a nature
that the truth of the imputation conveyed
by them would
seriously affect the opinion of the Court as to the credibility
of the witness on the matter to (2.)
Such questions
which he
testifies
are improper if the imputation
which
they convey relates to matters so remote in time, or of such a character, that the truth of the imputation
would not
affect,
or would affect ia a slight degree, the opinion of the Court as to the credibility of the witness
on the matter to which he
testifies (3.)
Such questions
are improper if there is
a great dis-
proportion between the importance of the imputation agaiast
the
evidence;
witness's
character
made
and the importance of his
wit-
'° ^"^^^''•
Qfsaxi. to
"^^'"^^^gj. tion shall bfi asked.
and when
^^elled to answer.
2o8
The Indian Evidence Act, 1872. The Court may,
(4.)
if
it
sees
fit,
draw, from the witness's
refusal to answer, the inference that the
answer
if
given would
be unfavourable. Question
No
149.
such question as
hundred and forty-eight ought
asked reasonable grounds.
asking
referred
to
in
section
one
to be asked, unless the person
has reasonable grounds for thinking that the impu-
it
wMch
tation
is
it
conveys
is
weU-founded.
lllustraticma. (a.)
A
portant witness
a dakait.
is
the witness whether he
A pleader is
(6.)
by an attorney or vakil that an imThis is reasonable ground for asking
barrister is instructed
witness
is
pleader,
gives
is
a dakait.
informed by a person in Court that an important
The informant, on being questioned by the
a dakait.
satisfactory
reasons
for
statement.
his
reasonable ground for asking the witness whether he
A
(c.)
whom
witness, of
random whether he *»
is
nothing whatever
a
dakait.
is
is
This
is
a
a dakait.
known,
is
asked at
There are here no reasonable
grounds for the question. (d.)
A witness,
of
whom
tioned as to his
mode
answers.
may
This
nothing whatever
of Hfe
and means of
is
known, being ques-
living, gives unsatisfactory
be a reasonable ground for asking him
if
he
is
a
dakait.
150.
Procedure case of question
asked
asked without reasonable grounds,
^^^
^"'^ ,
scandalous questions,
it
any such question was
may,
if it
was asked by
vakil or attorney, report the circum-
barrister, pleader,
wMch
High Court
or
other authority to
such barrister, pleader, vakil, or attorney n
.
,
• i-
is
subject in
•
the exercise ot his proiession. \^\.
Indecent
which
The
may
Court
forbid
any questions or inquiries
indecent or scandalous, although such ° questions or inquiries may have some bearing on the quesit
regards as °
tions before the to
Court, unless they relate to facts in issue, or
matters necessary to
whether or not the
o
of opinion that
is
stances of the case to the
reasonable grounds. ^
,
If the Court
'•^^'
stions
intended to
it
annoy.
in
-"-^^
be
known
in
order
determine
facts in issue existed,
Court shall forbid any question which appears to
to be intended to insult or annoy, or which, itself,
to
though proper
appears to the Court needlessly offensive in form.
The Indian Evidence Act, 1872.
When
153.
a witness has been asked and
any question which as
it
is
209
has answered
Exclusion
relevant to the inquiry only in so far
to contra-
by injuring his but contradict him
tends to shake his
credit
evidence shall be given to ° falsely, he may afterwards
; '
charged
be
character, if
no
he answers
^n'swersto questions testing
with
giving
false
veracity.
evidence.
Exception
1.
—If a witness
is
previously convicted of any
may be
and denies
crime
it,
evidence
given of his previous conviction.
Exception to
asked whether he has been
2.
—
impeach his
If
a witness
impartiality,
he
facts suggested,
may
is
asked any question tending
and answers
it
by denying the
be contradicted. Illustration.
A
(a.)
claim against an underwriter
is
resisted
on the ground of
fraud.
The claimant
made
asked whether, in a former transaction, he had not
is
He
a fraudulent claim.
Evidence is offered to
The evidence (6.)
(c.)
A is denies
is
situa-
He denies it.
is offered to
The evidence
claim.
asked whether he was not dismissed from a
is
tion for dishonesty.
Evidence
it.
show that he did make such a
inadmissible.
is
A witness
denies
show that he was dismissed for dishonesty.
not admissible.
A affirms that on a certain
day he saw
B at Lahore.
asked whether he himself was not on that day at Calcutta.
He
it.
Evidence
is
offered
show
to
that
A
was
on that
day at
Cal-
cutta.
The evidence which
B
affects
is
his
admissible, not credit,
as
contradicting
A
on
a
fact
but as contradicting the alleged fact that
was seen on the day in question in Lahore. In each of these cases the witness might, if his
denial were false,
be charged with giving false evidence. whether his family has not had a blood feud {d.) A is asked with the family of B against whom he gives evidence.
He
denies
it.
He may
be contradicted on the ground that the
question tends to impeach his impartiality.
154.
The Court may,
in its discretion, permit the person
Questions
by party
to
2IO his own witness.
Impeaching credit of witness.
—
;
;
;
The Indian Evidence Act, 1872. who
him which might
a witness to put any questions to
calls
be put in cross-examination by the adverse party.
The
155.
credit
following ways
by the adverse
the Court, by the party
By
(1.)
from
who
the evidence
their
may be impeached
witness
of a
of
in the
party, or, with the consent of
him persons who calls
:
testify
that they,
knowledge of the witness, believe him to be un-
worthy of credit
By
.(2.)
'V
nadtne
proof
offer of
that
the
has been bribed, or has
witness
a bribe, or has received any other corrupt
inducement to give his evidence
By
(3.)
proof of former statements inconsistent
part of his evidence which
"When a man
(4.)
may
ravish, it
immoral
is
is liable to
with any
be contradicted
prosecuted for rape or an attempt to
be shown that the prosecutrix was of generally
character.
Explanation.
unworthy of
—A
credit
witness declaring another witness to be
may
not,
upon his examination- in-chief
give reasons for his belief, but he
may
be asked his reasons in
cross-examination, and the answers which he gives cannot be contradicted, though, if they are false,
he
may
afterwards be
charged with giving false evideiice. Illustrations. (a).
C
A
sues
B
says that
for the price of
lie
goods sold and delivered to B.
delivered the goods to B.
is offered to show that, on a previous occasion, he had not delivered the goods to B.
Evidence that he
The evidence (6.)
A
is
is
admissible.
indicted for the
says that B,
said
when
murder of B.
dying, declared that
A had given[B the wound
of which he died.
show that on a previous occasion, C that the wound was not given by A or in his presence. The evidence is admissible. Evidence
Questions tending to corroborate
156.
is
offered to
When
a witness
whom
it
is
said ^
intended to corroborate
gives evidence of any relevant fact, he
may
be questioned as
The Indian Evidence Act, 1872, to
any
otlier
211
circumstances which he observed at or near to
the time or place at which such relevant fact occurred,
Court
of opinion that such circumstances, if proved,
is
evidence of
the
fact™d-
would
™'ssible.
if
corrohorate the testimony of the witness as to the relevant fact
which he
testifies.
niustratimi.
A, an accomplice, gives an account of a robbery in which betook
He
part.
describes various incidents unconnected with the robbery
which occurred on his way to and from the place where
was
it
committed.
Independent evidence
of
these facts
may
corroborate his evidence as to the robbery
be given in order to
itself.
In order to corroborate the testimony of a witness, Former
157.
any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or any authority
before fact,
may
legally
thirty-two ,
.
or ,
m
"oved^tg corrobo-
testimony
statement,
thirty-three,
is
all
matters
T
section
may
,
order to contradict or to
in order to impeach or confirm the
^^^^
under
relevant
proved,
,
.
proved, either
whom
the
investigate
be proved.
Whenever any
158.
competent to
of witness
credit
of the
be What matters
.
corroborate
f^ct,
it,
or
person by
may be comiection
that ^"^
was made, which might have been proved if person had been called as a witness, and had denied upon
statement
cross-examination the truth of the matter suggested.
under
159.
it
A
witness may, •" while under examination,' refresh his
memory by
referring to
any writing made by himself
time of the transaction concerning which he or so soon afterwards that the Court considers
at the
^.l*^''""
32 or 33. Refreshing '"^°^°'7-
is it
questioned, likely that
the transaction was at that time fresh in his memory.
The witness may
also
refer to
any such writing made by
any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
Whenever a witness may
refresh his
memory by .
to
reference
.
any document, he may, with the permission of the Court,
refer
to
a copy of such document,
provided the Court be
satisfied that there is sufficient reason for the
of the original.
When "''ss
non-production ^
wit-
may
use copy
ment'to ""^f"^^*
memory,
2
2
The Indian Evidence Act, 1872.
1
An
expert
may
memory by
refresh his
reference to pro-
fessional treatises.
Testimony to facts stated in
meXned in section
160.
A
may '
witness
such document as fifty-nine,
mentioned in any
''
m
mentioned
is
although he
themselves,' if he
f^pjjg
159.
also testify to facts
no
has
.
section one
specific
J J ana /I hunarea
1
recollection
sure that the facts were
is
of
the
correctly
recorded in the document.
Illusiratwm.
A
book-keeper
may
to
testify
recorded by
facts
regularly kept in tbe course of business,
if
him
in books
he knows that the books
were correctly kept, although he has forgotten the particular transactions entered.
Right of adverse
^jjy ;
ig]^
o referred to under the provisions of the
•v^rritinCT
4-
must be produced and shown
partyasto
two
used to
the adverse party
memory,
pl^ases, cross-examine the witness thereupon.
A
162.
Production ment°s!"'
last preceding
^^ ^^
sections if
he requires
summoned
witness
produce a document
to
iu his posscssion or power, bring
standing any objection which there or to its admissibility. shall .
it
may
to
shall, if
be to
its
production
The validity of any such objection
The
Court, if
sees
it
fit,
may
inspect the
document, unless
to matters of State, or take other evidence
to determine
on
be translated, the
to
to enable
its admissibility.
Court may,
translator to keep the contents is
he
Court, notwith-
jf for guch a purposc it is necessary to cause to
docu-
it
if
be decided on by the Court.
it refers
Transla-
such party may,
it;
to
be given in evidence
:
if
it
thinks
secret, unless
and
if
any document fit,
direct the
the document
the interpreter disobeys
such direction, he shall be held to have committed an offence
under section one hundred and sixty-six of the Indian Penal Code. Giving, as Evidence of docu-'
™lied
for
163.
When
a
party
calls
for
a document which he has
given the other party notice to produce, and such document ^^
produced and inspected by the party calling for
its
pro-
:
:
The Indian Evidence duction, he
ducing
is
requires
it
When
164.
bound
give
to
him
to do so.
and pro-
nXe.°" produce a document which
to
produce, he
to
213
as evidence if the party pro-
it
a party refuses
he has had notice
Act,' xZ"]!.
cannot afterwards use the
document as evidence without the consent
of the other party
or the order of the Court. _„
Using, as evidence of docu-'
dm;tion™f which was refused on notice.
.
Ilmstration.
A the
sues
B
trial,
A
document
The Judge may,
any form, tion
refuses to produce
B
contents.
At
it.
A
seeks to produce the
contradict the secondary evidence given by A, or show that the agreement is not stamped. He cannot do so.
proper proof of relevant
any
its
it.
notice to produce
itself to
to
165.
B
the document and
calls for
gives secondary evidence of
in order
B
on an agreement and gives
at
any time,
fact, relevant
in
order to
any
M'itness, or of
and
or irrelevant,
of any document
obtain
to
ask any question he pleases, in
facts,
of
discover or
may
the parties, about
order the produc-
and neither the
or thing,
make any
their agents shall be entitled to
Judge's
put queso™ej.
wo-
duction.
parties nor
objection to
any
such question or order, nor, without the leave of the Court, to
cross-examine
any witness upon any answer given in
reply to any such question
Provided declared
by
that
Act
this
Pr&vided also
Judge
to
the judgment must
this
based
upon
facts
and duly proved
to be relevant,
that
be
section
shall
not authorize
any
compel any witness to answer any question, or to
produce any document which such witness would be entitled to refuse
to answer or produce
and twenty-one if
to one
under sections one hundred
hundred and thirty-one both inclusive,
document were
the question were asked or the
by the adverse party which
it
;
nor shall the
would be improper
for
called for
Judge ask any question
any other
person
to
ask
under sections one hundred and forty-eight or one hundred and forty-nine nor shall he dispense with primary evidence ;
of
any document, except in the 166. In cases tried by jury
cases hereinbefore excepted. or
with assessors, the jury or Power jury or
of
—
The Indian Evidence Act,
214 assessoreto tions^"^^'
assessors
may put any
\Z']2.
questions to the witnesses, througli or
^y leave of the Judge, which the Judge himself might put and which he considers proper. Chapter
XL
Of Improper Admission and Eejectiox of Evidence.
No new tnalfor improper admission '
ofevirtence.
^^'^-
jjq^
'^'^
improper admission or rejection of evidence shaU
^g ground of °
decision in
any
a
itsclf for
ease,
if
which such objection evidence
objected
evidence
to justify
to
is
it
shall
raised
and
the
trial
that,
admttied,
it
or reversal
of
any
appear to the Court before
decision,
evidence had been received, decision.
new
or
independently of the there that,
was if
the
sufBcient rejected
ought not to have varied the
;
The Indian Evidence Act, 1872.
215
SCHEDULE. Enactments repealed. [See section 2.]
Stat.
26
cap.
Geo.
III.
57.
For
of the of certain Kast the
Section thirty-eight
Indies; for repealing so much of an Act, made in the twenty-fourth year of the reign of his present Majesty (intituled 'An Act for the better regulation and management of the affairs of the East India Company, and of the British possessions in India, and for estahlishing n, court of judicature for the more speedy and effectual trial of persons accused of offences committed in the East Indies') as requires the servants of the East India Company to deliver inventories of their estates and effects for rendering the laws more effectual against persons unlawfully resorting to the East Indies ; and for the more easy proof, in certain cases, of deeds and writings executed in Great Britain or India.
in the East Indies.
the further of persons
trial
committed
offences
Stat.
Vic,
14
and
15
To amend
regulation
accused
the
Law
in
of Evidence
eleven and of section nineteen as relates to British India.
Section
cap. 99.
ActXVof
1852.
so far as it relates to Courts of justice
so
To amend the Law of Evidence
much
So much as has not been heretofore repealed.
Act
XIX of 1853.
Act II of 1855
the Law of Evidence in the Civil Courts of the East India Company in the Bengal Presidency.
To amend
For the further improvement
Law Act
XXV
of 1861
of the
of Evidence.
of Criminal Judicature established by Koyal Charter.
Act I of 1868.
The General
Clauses' Act, 1868
So much been re
For simplifying the Procedure of the Courts
Sectito nineteen.
not
as has not heretofore
Section two hundred
and thirty-seven.
Sections eight.
seven
and
.
INDEX TO THE INDIAN EYIDENCE ACT L OF
1872.
PAGB
SECT.
Abbreviations, meaning of, evidence admissible to show Acceptor of Bill of Exchange estopped from denying anthority of drawer
.
.
may deny drawing Accession of Sovereign of TJnited Kingdom, Court must take judicial notice of Accession to office, &c., of Indian public officer, when Court must take judicial notice of
Accomplice, competent witness against person accused conviction upon evidence of, only, not illegal Account, books of, entries in, when relevant Act, application of
commencement
of conspirator,
how
19 9 199
67
176
67 133 133 34
177 203 203 168 147 147 147 147 155
192
1
of
1
extent of ... short title of
Act
98 117 117
1
1
10
far a relevant fact
See "Relevancy of statement." Acts,
how proved
of Parliament, of what Acts Court must take judicial notice private, copies of, presumption as to genuineness repealed Sched. and Sohed. and 26 Geo, III., c. 57, s. 38, part of 14 and 15 Vic, c. 99, s. 11, and part of s. 19 Sched. and Xy. of 1852 Sched. and Sched. and XIX. of 1863, s. 19 Sched. and 11. of 1855 Sohed. and XXV. of 1861, sec. 237 ... Sched. and I. of 1868, ss. 7 and 8 ... Exclusion of Evidence." Adding to terms of written contract, &c. See Admissibility of communications made during marriage document produced by witness evidence of affairs of State Judge to decide as to questions tending to corroborate evidence of relevant fact ... Admission by party to proceeding or his agent person interested in subject-matter of proceeding person from whom interest derived by party to suit person whose position or liability must be proved as against ... party to suit person expressly referred to for information by party to suit. ,
.
.
2
2 2
122 162 123 136 158
201 212 201 204 210 160 160 160
18
18 18
160 161 160 160 163 164 164 214 182 162 161
18
20 18 17 23 81 31 167 70
suitor in representative character definition of ... in civil oases, when relevant may operate as estoppel
not conclusive proof of evidence, improper, when no around for new trial of execution by party to attestea document oral, as to contents of documents, when relevant proof of, against person making it, and by or on his behalf Admissions Admitted fact need not be proved
184 176 185 147 147 147 147 147 147 147 147
78 57 81 2 2
,
...
22 21
17—31160- -164 68
...
178
2l8
Index
to
Act. SECT.
Affairs of state, admissibility of evidence of Affidavits presented to Court or Oiiicer, Act not appKcable to
Agent. Sea ' Principal and Agent." Agreement, oral, evidence of, inadmissible to vary terms of written contract, &c. Ambiguous document, exclusion of evidence to explain '
See "Language" Annoying questions. Court to forbid Answer of witness. See "Witness." Arbitrator, proceedings before. Act not applicable to Army of Her Majesty. See " Articles of War." Articles of War for Her Majesty's Army and Navy, Court notice of Assessors, questions to witness by
must take
judicial
Attested document, not required by law to be attested, proof of 6; required by law to be attested, proof of ... Attesting witness, proof when he cannot be found, or document executed in the United Kingdom proof when he denies execution when execution of document must be proved by Attorney. Se« "Powers of Attorney." certain questions asked by, without reasonable grounds, may be reported to High Court communication made to, by or for client, when disclosable when not disclosable ... waiver of privilege Authority. See "Estoppel."
Bad character, relevancy of, in criminal proceedings... Bailee estopped from denying authority of bailor may prove right of person to whom he delivers goods Bailor, authority of, estoppel of bailee from denying... Barrister, certain questions asked by, without reasonable grounds, may reported to High Court communication made to, by or for client, when disclosable when not disclosable waiver of privilege Bill of Exchange, acceptor of, estopped from denying authority of drawer
may deny drawing Birth during valid marriage, ^*''^
!o1?s["e of
"'
when
conclusive proof of legitimacy
...
}^-"Kelevancyoffacts."
Bona fides, i'ee "Good faith." Book of Laws, presumption as to genuineness Books of Account, entries in, when relevant Books, presumption as to
...
of ...
...
Bribe, credit of witness impeached by showing British India, Act extends to whole of laws in force in, Court must take judicial notice of British territories. Court must take judicial notice of British territory, proof of cession of Burden of proof 101definition of as to asserted legal right or liability in suit or proceeding as to particular fact of fact necessary to be proved to make other evidence admissible that case of accused is within exceptions of Indian Penal
Code of fact especially within knowledge of death of man known to have been alive within 30 years
92
Index
to
Act.
219 SECT.
Burden of proof
that man is alive who has not been heard of for 7 years as to relationship in case of partners
landlord and tenant and agent
principal
Business.
Su
as to ownership of good faith where one party stands in position of active confidence "Course of business."
220
Index
to
Act. SECT.
Contents of documents, oral evidence
secondary evidence of statements by other when admissible Contract in form of document, evidence of terms of of,
persons
of,
exclusion of evidence, of oral agreement varying terms of examination of witness as to ... Contradiction of proved relevant statement
ofwitness Contradictory terms of written contract, &c. 5ee " Exclusion of Evidence." Conviction, previous, relevancy of, in criminal proceedings upon evidence of accomplice only, not illegal Copy of document, when witness may refresh memory by reference to secondary evidence Corroboration of proved relevant statement Counsel. ^See "Barrister." Counterpart, how far primary evidence secondary evidence ... Course of business, existence of, when a relevant fact Course of proceeding of Parliament and Indian Law Couucil-s, Court must take judicial notice of Court. See "Judge." Act applicable to judicial proceedings in not applicable to af&davits presented to definition of names of Members and Officers of, Court to take judicial notice of ... to forbid insulting questions Court Martial, Act applicable to judicial proceedings before Courts, seals of, of wMch Court m'jst take judicial notice Credit of witness, how impeached 146questions in cross-examination affecting when may be confirmed
when may be impeached Criminal proceedings.
iSee
"Confession."
husband or wife of accused competent witness relevancy of bad character good character previous conviction 132— Criminating answer, witness not excused from answering on ground of Cross-examination of Witness as to previous written statements when they must be
produced leading questions may be asked meaning of must relate to relevant facts not confined to facts upon which examined in chief on new matter introduced in re-examination
producing document questions to test veracity, &c.
...
146-
not to be asked without reasonable grounds when Court may report asking of question to High Court to character
upon answer
to Judge's question, when permitted upon writing with which he refreshes memory
Custom.
Ste.
"Relevancy of
facts."
general, relevancy of opinions as to existence of
Damages, relevancy of character as affecting
48 55
...
...
173 175
"
Index
to
Act
221 SECT.
suits for, relevancy of facts in
Dead
person, statement of. Sia " Relevant facts. Death of man known to have been alive within 30 years, hurden of proving who has not been heard of for seven years, burden of proving _,
.
life
.
108
Documentary evidence
61 definition of
"Witness,
mode
156
107
Decision, reversal of. See " Reversal of decision," " Reports of decisions." Decree. See "Judgments." Deeds, title, of witness not a party, production of 130 Defective document, exclusion of evidence to explain 93 Definitions 3 Disease of body or mind, person affected with, when incompetent as witness 118 " Disproved," definition of 3 Divisions of time, when Court must take judicial notice of 57 Document. See " Evidence," " Presumption," " Production of document." contents of, how proved 61 definition of 3 if production refused, when party refusing can afterwards give it in evidence 164 presumptions as to 79—90 private 75 produced by witness, translation of 162 when Court may inspect 162 when referring to matters of State ... 162 on notice, party producing entitled to have it in evidence 163 production of, by witness 162 power of Judge to order 165 which another person, having possession, could refuse to produce 131 public 74—78 used by witness to refresh memory, production of, to adverse party 161
Dumb
PAGE
12
exclusion of oral, of giving evidence
3
2 ...
documentary exclusion of oral by documentary
when no ground
184 212
179 —187 149
"200
119
public record, &o., made in performance of duty, relevancy of ... Estoppel, admission may operate as definition of of acceptor of Bill of Exchange from denying authority of drawer bailee or licensee from denying authority of baQor or licensor licensee of person in possession of immovable property from denying licensor's possession tenant from denying landlord's title See the various titles. Evidence. admissibility of, Judge to decide as to admissible as to appUcation of language to one of two sets of facts, to neither of which whole correctly applies which can apply to one only of several persons or things as to use of language unmeaning in reference to exist ing facts as to written document or contents to show meaning of illegible characters, &c. when statement forms part of conversation, book, &c. definition of
of,
183,
91—100 188—193
by by
Enactments repealed Entry in books of account, when relevant
improper admission
— 90
185—187
for
new
trial
34 35 31 115 117 117
116 116 136
97
96
'
2
22
Index
to
Act. PAGE
SECT.
ETidence,improper rejection
of,
new trial language when document
when no ground
167
for
inadmissible as to meaning of applies accurately to existing facta 94 of affairs of State, admissibility of 123 of Attorney, Barrister, &o 126—128 of contemporaneous agreement varying terms of document, who may give 99 of dumb witness, mode of giving 119 of fact when not admissible under CivU Procedure Law 5 of facts in issue and relevant facts 5 of husband or wife 120—122 of Interpreter 127—128 of Judge or Magistrate... 121 of Magistrate or Police Officer 125 of oral agreement varying terms of contract, &c., exclusion of ... 92 of parties to suits 120 of public officer 124 of terms of contract, &c., in form of document 91 of witness, when relevant for proving in subsequent proceeding truth of facts stated 33
59,60
oral
must be
60 59 62 2 66 93
direct
proof of facts by primary... rules of, repealed
secondary 63,65, to explain ambiguous or defective document, exclusion of ... what matters may be proved when relevant statement proved under sec. 32 or 33 See " Evidence." Examination. of witness as to written document or contents of witnesses. Se^ ' Witness. Examination-in-chief of witness, leading question, when maybe asked ... when may not be asked '
facts
when cross-examination
191 201
...
201—202 ... ... ...
...
193 200 150 150
200—201 ... ... ... .-..
... ...
...
... ... ...
... ... ...
202 200 201 189 200 201 188
167 178 178 178 179 147
179—182 191
158
...
211
144
...
206
question
may
142 142 137 138
accurately to existing facts of oral agreement, varying terms of written contract, &c. to contradict answer to question testing veracity ...
94 92 153 93 100 70
to explain ambiguous or defective document 91 of oral by documentary evidence Execution, admission of, by party to attested document of document, proof of, when attesting witness cannot be found, or execution in the United Kingdom ... when attesting witness denies execution when must be proved by attesting witness ...
—
Executive, acts of, how proved Existence of foreign State, &c., when Court must take judicial notice of Expert, definition of may refresh memory by reference to professional treatises opinion of, expressed in treatise, when proved by production on foreign law, &c., relevancy of relevancy of facts bearing upon Explanation of ambiguous document, exclusion of evidence in S&e, "Relevancy of facts.'' fact in issue, or relevant fact. Extent of Act
... ...
... ...
206 206 205 205
be
154 138
"Presumption."
...
...
asked in Examinations of witness, order of Exclusion of evidence as to meaning of language when document applies
(See
214
'
meaning of must relate to relevant
Fact.
...
...
...
69 71 68 78 67 45 159 60 45 46 93 1
...
...
209 205
...
191 189 209
...
191
... ...
188—193 ...
...
... ...
... ...
...
182
182 182 182 184 177 171
...
212 178 171 172
...
191
...
147
... ... ...
"
Index
to
'
Act.
223 PAGE.
SECT.
Fact,
admitted need not be proved definition of
...
...
...
...
...
evidence of, when not admissible under Civil Procedure Law Fact in Issue. See, " Relevancy of facts." evidence of, may be given in suit or proceeding Facts in issue, definition of not requiring proof of which Court must take judicial notice proof of, by oral evidence ... relevancy of ... ... bearing on opinions of experts bearing on question whether act was accidental
66-
E
or intentional forming part of same transaction ... in suits for damages necessary to explain or introduce a fact in issue or relevant fact not otherwise relevant, when they become relevant showing existence of state of mind, body, or bodily feeling when course of business concerned where right or custom in question which are the occasion, &o., of relevant facts, or facts in issue relevant, evidence of, when admissible Fasts, public, when Court must take .judicial notice of Festivals, public, when Court must take judicial notice of Flag, national, of foreign State, &c., when Court must take judicial notice of Foreign expressions, evidence admissible to show meaning of Foreign judicial records, certified copies of, presumption as to Foreign law, opinions of experts on, relevancy of Forfeiture, exposure to, witness not excused from answering on ground of 132, 147 Fraud in obtaining judgment may be proved ... Functions of Indian Public Officers, when Court must take judicial notice of
" Gazette of India," notice
in,
of cession of British territory, proof
presumption as to genuineness of " General Clauses Act, 1868," sections 7 and 8 repealed
<7ffl2eWe,
s
Genuineness of documents, &c. See "Presumption." Geographical divisions of the world, when Court must take judicial notice of Good character, relevancy of, in criminal proceedings Good faith, burden of proof where one party stands in position of active Ill
confidence
...
196
...
189
'
Notifications of Government. Government. See Government Gazettes, of local Governments, &c, '
presumption as to genuineness of Grant, evidence of terms of, when in form of document examination of witness as to its being in writing exclusion of evidence of oral agreement, varying terms of, when in
form of document See " Opinion." Grounds of opinion.
...
...
...
...
...
...
of, relevancy of opinions of experts on proof of, when necessary ... relevancy of opinions as to High Court, certain questions asked by Attorney, &c., without reasonable ... grounds, may be reported to Holidays, public, when Court must take judicial notice of Hostilities between British Crown and other States, &c,, commencement, &c., of, Court must take judicial notice of Husband of accused in criminal proceeding, competent witness party to civil suit, competent witness
Handwriting, identity
92
"
2
'
24
Index
to
Act. PAGE
SECT.
Identity of handwriting, relevancy of opinions of experts on witness, questions in cross-examination to discover
45
146—150
...
not asked without reasonable grounds
to ...
...
171
207,208
be ...
149
...
150 98
...
208
When
may
Court report asking of question to High Court
Illegible characters, meaning of, evidence admissible to Impeaching credit of witness
show
155,158
Incompetency of Court to deliver judgment, may be proved Indecent questions, when Court may forbid India, British,
44 151
may not forbid Act extends to whole of
" Indian Councils Act, 1861," repeal of rules, &c., having force of law under sec. 25 course of proceeding of Councils under, Court must take judicial notice of " Indian Penal Code," burden of proof that case of accused is within excep-
...
210, ...
208 192 211 171
151
...
1
...
208 208 147
2
...
147
57
...
176
105
...
195
...
177
... ...
193 188
...
208
...
201 212 208 148
...
,
tions of
accession to office, &c., of, when Court must take judicial notice of "Indian Succession Act," provisions of, as to construction of "Wills not affected Wills under, how provable Inference Court may draw when witness in cross-examination refuses to answer question as to veracity, &c Information as to commission of offence, source of, Ma^trate and Police officer not compellable to disclose Inspection by Court of document produced by witness Insulting questions, Court to forbid Interpretation clause Interpreter. /Sse "Translator."
Indian Public
Officers,
communication made
to,
when disclosable when not disclosable
..,
waiver of privilege Introduction of &ct in issue or relevant fact. /See " Eelevancy of facts.
...
Judge must decide upon proved relevant facts not generally compellable to answer question as to conduct or ju(£cial knowledge when compellable to answer question as to conduct or judicial knowledge .. may be examined as to other matters which occurred in his presence power of, as to translation of document produced by witness to compel person to write for comparison to examine witness and order production of document to inspect document produced by witness to decide as to relevancy of facts
Judgment, fraud or collusion in obtaining, or incompetency of Court, be proved Judgments, &c, of Courts of justice, when relevant
when relevant to bar second suit or trial in Probate, &c., jurisdiction, of what conclusive proof relevancy of ... in other than Probate, &e., jurisdiction, relevancy effect of
Judicial notice,
other than above, when relevant ... must be based upon proved revelant facts facts of which Court must take
facts of which Court takes, not necessary to prove ... Judicial proceedings before Courts and Courts-Martial, Act applicable to Jury, questions to witness by
may
and
57 100 91
148 125 162 152
... ...
3
...
127 127 128
... ...
202 202 202
165
...
213
121
...
200
121
...
...
.
Index
to
Act.
225 SECT.
Landlord and Tenant, burden of proof aa to relationship in case of Landlord, title of, estoppel of tenant from denying Language. See, "Evidence." admissibility of evidence as to application of, to one of two sets of facts to neither of which whole correctly applies ...
when document
applies accurately to existing facts, evidence inadmissible as to meaning of which can apply to one only of several persons or things, admissible as to application of immeaning in reference to existing facts, evidence admissible as to use of Law book. /Sue " Law of Country." Law of Country, relevancy of statement of, contained in Law Book Laws. &e "Book of Laws." in force in British India, Court must take judicial notice of repealed Leading Question, meaning of ... in examination in chief and re-examination when may be
asked
when may not be asked asked in cross-examination Legislatures, proceedings of, how proved Legitimacy, in what cases birth during valid marriage, conclusive proof of Licensee, estoppel of, from denying authority of licensor of person in possession of immoveable property, estoppel of, from denying licensor's possession Licensor, authority of, estoppel of licensee from denying of immoveable property, possession of, estoppel of licensee from denying ... Lithographed documents, how far primary evidence Local expressions, meaning of evidence admissible to show London Gazette, presumption as to genuineness of Lunatic, when incompetent as witness .
may be
.
109 116
.
.
2
26
New
Index
to
Act. PA8E.
SECT,
167 57
-..
21i
...
177
163
...
212
...
213
...
164 66 66 66 113
...
78
...
3
...
184 150
98
...
192
improper admission or rejection of evidence, whenno ground for Notary public, seal of, Court must take judicial notice of Trial,
Notice to produce.
"Presumption" document produced under, party producing See.
have
if
entitled to
evidence production refused when party refusing can afterwards give document in evidence ... ... ... ... it in
rules as to
When when
necessary unnecessary
Notification in (?a2e
"Not
of Government, proved," definition of
how proved
...
...
...
...
...
Obsolete expressions, meaning of, evidence admissible to show Offence, commission of, source of information as to, Magistrate and Police officer not compellable to disclose ... Offensive questions. Court to forbid
125 152
Officer, affidavits
presented to. Act not applicable to communications, when public officer not compellable to disclose Old age, person of extreme, when incompetent as witness Onus. See, "Burden of proof." Opinion as to existence of general custom or right, relevancy of handwriting, relevancy of ... ... ... ... Official
relationship, relevancy of usages, tenets, meaning of terms, &c.
1 ...
...
124 118
48 47
relevancy of proved by its production ,
—
"
must be
direct of contents of document, secondary evidence ... of statements by other persons of contents of
when admissible proof of facts by Order.
...
...
...
... ...
60 63
201 208 147 201 200
... ... ...
...
...
... ...
50 ... 49 ... 60 ... 45 ... 46 ... 51 171 51 ...
of expert expressed in treatise, when ... on foreign law, &o., relevancy of relevancy of facts bearing upon 46 of third person, when relevant relevancy of grounds of ... ... ... ... ... ... ... Oral admission as to contents of document, relevancy of 22 ... ..; ... agreement, evidence of, not admissible to vary terms of written contract 92 evidence 60 69, definition of 3 119 evidence of dumb witness deemed ... 91—100 exclusion of, by documentary evidence
181 181 181 197
...
—
...
... ... ... ...
188
173 172 173 173 178 171 172 174 174 162 189 178 149 200 193 178 179
—
...
...
documents, 144 59
...
...
206 178
5ee " Judgments."
of examinations of witness Orders of Government, &c., how proved Ownership, burden of proof as to
138 78 110
Parliament, course of proceeding of, Court must take judicial notice of ... 57 See " Oral Evidence." Parol. Parties, power of Judge to examine 165 to civil suit, competent witnesses 120 Partners, burden of proof as to relationship in case of 109 Penalty, exposure to, witness not excused from answering on ground of 132, 147 Photographed document, how far primary evidence 62 Plans, Presumption as to 83 relevancy of statements in 36 Pleader, certain questions asked by, without reasonable grounds, may be reported to High Court 150 communication made to, by or for client, when disclosable ... 126 when not disclosable... 126 waiver of privilege ... 128
...
205 184 196
...
176
... ...
213 200 196 ... 203, 207 ... 179 ... 186 ... 168 ...' ...
...
208
...
201 201 202
... ...
.
.
Index
Act.
to
227 PAGE
SECT.
Police officer, confession to, not provable against accused 25 confession while in custody of, when provable against accused 26 how much provable against accused 27 Police officer not compellable to disclose whence information obtained as 125 to commission of offence 146- -150 Position in life of witness, questions in cross-examination to discover not to be asked without reasonable
grounds Court
149
may
when
report
asking
...
163 163
...
163
...
201
...
207, 208 ...
208
...
208
of
c^uestion to High Court I1O See "Judge." 85 Powers of Attorney, presumption as to .. 79-! Presumptions as to documents ... Sze " death." Presumption. as to books, maps, and charts ... certified copies of foreign judicial records document produced as record of evidence documents 30 years old ... execution &c. of document not produced after notice existence of probable facts genuineness of book of laws and reports of decisions certified copies, &e. England or admissible in document Ireland without proof of seal or signature newspapers, copies of private Gazettes, Acts of Parliament and other docu-
Power of Judge.
ments
maps and plans powers of attorney telegraph messages Previous conviction. S&& " Conviction." Primary evidence how far counterpart is printed document &c.
meaning
is
...
of
proof of document by Principal and agent, burden of proof as to relationship in case of Printed document, how far primary evidence Private documents Privilege.
"Attorney," "Barrister," " Marriage, " &c. of communications during marriage communications not waived by professional ,See
evidence
_
party
...
giving
...
how
waived when attorney examined by party how proved far
&c.
Privy Council, proclamations, &:c. of, Probate, proof of wUls under " Indian Succession Act," by Proceedings before arbitrator. Act not applicable to civil, parties to suit and husband and wife competent witnesses criminal, husband or wife of accused, competent witness Sk "Criminal proceedings." judicial, before Courts and Courts-Martial, Act applicable fo ... of
what
facts evidence admissible
in
Proclamations, how proved Production of document by witness
on
notice,
if
refused in what cases party refusing can afterwards give it in evidence .
,
party producing entitled to have it in evidence ... person summoned does not become witness by power of judge to order
...
"
.
Index
228
Act.
to
Production of document, which another person, having possession, could refuse to produce of title deeds of witness not a party of writing used by witness to refresh memory, adverse party entitled to See "Attorney," "Barrister," &c. Professional adviser. communication, when disclosable when not disclosahle ... ... waiver of privilege, as to treatise, expert may refresh his memory by reference to Proof, burden of. See ' ' Burden of proof. admission not conclusive facts not requiting judgments in probate, &c. jurisdiction, of what conclusive of admission against person maiing it and by or on his behalf admitted fact, not necessary ... attested document not required by law to be attested certain public and of&cial documents cession of British territory contents of documents documents by primary evidence ... execution of document required by law to be attested
when ing
witness
cannot be
found,
or
execution
in
... ...
212
126 126 128 169
Attoriiey,"
"Leading
question,''
...
Ee-exaimnation of witness, leading question,
...
when
attest-
on new Court
matter
164
— 178
...
170 161 178 182 184 197 179 180 182
...
182
... ... ... ...
... ...
...
71 134 69 67 112 77
...
... ...
...
... ...
91 3
...
98 74 76 77 78 57 91 124
...
57 35
...
...
... ... ... ...
... ... ...
...
182 203 178 182 197 183 188 149 192 183
183 183 184 177 188 201 177 168
facts,''
&c.
may
be reported to High 208
150
when may be asked when may not be asked
meaning of
...
201 201 202 212
attest-
United
of
...
...
the
•'Relevancy
...
...
41 21 68 72 78 113 61 64 68
...
69
"Veracity of Witness," "Witness," asked without reasonable grounds, when Court
memory by
...
...
'
Refreshing
161
176
ing witness denies execution no particular number of witnesses necessary facts by oral evidence handwriting and signature, when necessary legitimacy, in what cases birth during valid marriage conclusive ... public document, by production of certified copy Wills under " Indian Succession Act " "Proved," definition of Provincial expressions, evidence admissible to show meaning of Public documents certified copies of proof of, by production of certified copies proof of certain Public Festivals, &c., when Court must take judicial notice of ... ... ... ... ... officer, proof of appointment of... ... when not compellable to disclose official communications accession to office, &c., of, when Court must take officers, Indian, judicial notice of ... record, &c., relevancy of entry In, made in performance of duty
•'
203 203
31
fact,
See
...
...
56—58
Kingdom
Question.
131
130
142
...
introduced
by permission of
to character ... to what directed reference to writing, when
made by witness when made by other person when witness may refer to copy .
.
.
Index
to
Act.
229 SECT.
EefresMng memory, expert, by reference to professional Regulations of Government, &o., how proved ... repealed Rejection of evidence, improper, when no ground for Relationship, relevancy of opinions as to ... Relevancy of admission in civil cases bad character in criminal proceedings character as affecting damages
new
treatise
...
trial
...
to prove conduct imputed, in oivU cases
conduct
...
...
made
...
removal of impression caused hy inducement, threat, or promise entry in public record, &c., made in performance of duty ...
confession
after
facts
bearing on opinions of experts bearing on question whether act was accidental or intentional
forming part of same transaction ... in suits for damages ... judge to decide as to ... "necessary to explain or introduce a fact in issue or relevant fact
showing existence of state of mind, body, or bodily feeling where right or custom in question which are the occasion, &c., of relevant facta or facts in issue
good character, in criminal proceedings grounds of opinion judgments, &c., to bar second suit or trial in Probate, &c., jurisdiction
of what conclusive proof in other than Probate, &c., jurisdiction other than above opinions as to existence of general custom or right
handwriting
...
relationship usages, tenets, &c., oral admission as to contents of document previous conviction, in criminal proceedings statement as to fact of public nature contained in certain Acts or Notifications in maps, charts, and plans of Law of country contained in Law Book ... or act of conspirator
statements Relevant," definition of Relevant fact, existence of course of business, when a See " Relevancy of facts." facts. examinatiou-in-chief and cross-examination of witness must
"
relate to proved, judge must decide upon when evidence of, admissible when facts not otherwise relevant become written or verbal statement of, by person dead or not be found, &c., when relevant
who
Repeal of laws Reports of decisions, presumption as to genuineness of Reversal of decision, improper admission or rejection of evidence,
nogroundfor ;Se6 "Relevancy
of facts." general, relevancy of opinions as to existence of Rule of the Road, Court must take judicial notice of
Eight.
can-
when
Index
to
Act. SECT.
Eules of evidence repealed
Scandalous questions,
when Court may forbid .. when Court may not forbid
with admitted or proved seal of what Seals Court must take judicial notice Second suit or trial, relevancy of judgments, &o., to bar .,„. Secondary evidence, after notice to produce Seal,
comparison
of,
Seals, of Courts, &c.
,
certified copies
other copies far counterpart is ..» meaning of *hen admissible of existence, condition,
how
Servant.
;Se«
or contents of
document "Attorney," " Barrister," &c.
146... Shaking credit of witness, questions in cross-examination for not to be asked without reasonable grounds
when to
court
may
report asking
of question
High Court
"Shall presume," definition of ... Short title of Act Sign manual of British Sovereign, Court must take judicial notice of Signature, comparison of, with admitted or proved signature ' proof of, when necessary ... ... ... Signatures of Indian public officers, when Court must take judicial notice of Sovereign, foreign, existence &c. of, when Court must take judicial notice of State, affairs of, admissibility of evidence as to foreign, existence &c. of, when Court must take judicial notice of ... matters of, document produced by witness referring to State of mind, body, or bodily feeling. See " Relevancy of facts." Statement as to fact of public nature contained in certain Acts or Notifica... tions, relevancy of ... forming part of conversation, document, book, or series of letters or papers, what evidence admissible of conspirator, how far a relevant fact of law of country contained in Law Book, relevancy of
Statements.
ySee
"Admission."
by persons who cannot be
32 called as witnesses in maps, charts and plans, relevancy of 34made under special circumstances relevancy of written or verba], of relevant facts by person dead or who cannot be found, &c. , when relevant when relating to cause of death when made in ordinary course of business when against interest of maker when giving opinion as to public right or custom, or matter of public or general interest when relating to existence of relationship
and
made
in will, deed, pedigree, or on tombstone, &c. when made in document relating to transaction by which right or custom created, &c. when made by several persons and expresses feelings, &c., relevant to matter in question Sch. and Statutes, parts of, repealed Sch. and repealed, 26 Geo. III. c. 57, s. 38, (part) Sch. and 14 and 15 Vic. c. 99, s. 11, and part of s. 19 See "Exclusion of EviSubtracting from terms of written contract, &c.
dence."
Index Suit.
See, " Judgments," &c. for damages, relevancy of facts in of what facts evidence admissible in
to
Act.
...
Technical expressions, meaning of, evidence admissible to show Telegraph messages, presumption as to Tenant. See, " Landlord and tenant." estoppel of, from denying landlord's title years, person of, when incompetent as witness Tenets of body of men or family, relevancy of opiniona as to Terms, meaning of, relevancy of opinions as to Territory, British, proof of cession of
Tender
Title of Act, short of foreign State, &c.,
when Court must take judicial notice of of landlord, estoppel of tenant from denying Title-deeds of witness, not a party, production of Titles of Indian public officers, when Court must take judicial notice of Transaction. See " Relevancy of facts." Translation of document produced by witness See " Interpreter." divulging contents of document directed to be kept secret &e" Expert," "Professional treatise." Treatises. Trial. See " Judgments," &c. Trial, New. See " New trial." Translator.
United Kingdom, proof of document required by law to be attested when ... ... executed in, and attesting witness cannot be found... Usages of body of men or family, relevancy of opinions as to
69 49
Index
232
to
Act. SECT.
PAGE
146-150 questions in cross-examination affecting ... cross-examination. <See " Cross-examination of witness." 119 dumb, mode of giving evidence by evidence of, when relevant for proving in subsequent proceediiig 33 truth of facts stated 144 examination of, as to written document or contents "<Sfee Examination-in-chief of witness.'' examination-in-chief. 120 husband of accused, competent, in criminal proceedings ... 127 interpreter as
207, 208
Witness, credit
of,
121 165
judge as
power
of,
magistrate as
not a party,
to examine ...
title
..
deeds
of,
when compellable to produce when not compellable to produce
not excused from answerin g on ground that answer will criminate 132, by other persons of contents of documents, when admissible order of examinations of party to civil suit, and husband or wife, competent pleader as
...
200 167 206
...
... ... ...
121 ... 130 ... 130 ... 147 203,
200 202 200 213 200 203 203 207
oral evidence of, as to statements
pleader's clerk or servant as police officer as... production of document by proof of former statement of, to corroborate testimony public officer as questions to, by Jury or Assessors See, " Ee-examination of witness." re-examination. refreshing memory by reference to writing ...
...
when made by witness when made by another person witness
when
may
162 157 124 166
206 205 200 201 202 201 212 211 201 213
15§ 159
211 211
159
211
159
211
144 138 120 126 127 125
by persons who cannot be
it
called
32,
to character, cross-examination and re- examination of translation of document produced by ... vakil as ... vakil's clerk or servant as when compellable to answer question in cross-examination testing ,
.
.
veracity,
&o in
what decide
when he may
testify to facts
mentioned in document
161 33 140 162 126
ANU W.
ItlDBll;
...
...
...
PRINTKRS, LOWDOW.
...
212
164—168
127
...
205 212 201 202
147
...
207
...
... ...
case Court to
148 160 120 118- -134
wife of accused, competent, in criminal proceedings Witnesses 135—166 examination of ... 134 no particular number necessary to prove fact ... 135 order of production and examination of 118—133 what persons competent 73 Writing, comparison of, with admitted or proved writing to refresh witness's memory, adverse party entitled to production 161 of, and may cross-examine upon 159 when witness may refresh memory by reference to
111
...
be cross-examined
upon statements
...
refer
to copy
may
...
... ... ...
207 212 200
200—203 204—214 ...
...
203 204
200—203 ...
182 212 211
The End.
World Public Library Association