Evidence in criminal actions generally. It is better for courts in criminal actions to adopt the liberal than the rigid and technical rule in the admission of evidence for the defendant; for any error, however slight, in this regard affecting the defendant's rights is ground for reversal: State v. O'Neil, 13 Or. 183; and therefore testimony for the defendant having any possible bearing on his case should not be excluded: State v. Mah Jim, 13 Id. 235. In the cross-examination of witnesses in capital cases great latitude should be allowed: Id.

The state on a criminal trial need do no more than prove the substantive offense charged: Howell v. State, 1 Or. 241.

"Evidence in civil cases": See chapters 8 and 9 of the Code of Civil Procedure, ante.

"Except as otherwise provided": See the sections following and in this chapter for special rules of evidence governing criminal cases. Admissions and confessions: See note to § 706 [696, Code Civ. Proc.], ante, pp. 553, 554; and see § 1368 [169], post, stating the rule as to confessions in criminal actions.

Res gesta: See note to § 686 [676, Code Civ. Proc.], ante, pp. 539, 540. Presumption of innocence: See note to $776 [766, Code Civ. Proc.], ante, p. 585.

Reasonable doubt: See note to § 1357 [158], ante.

Circumstantial evidence: See note to § 1357 [158], ante.

Proof of corpus delicti. — The corpus delicti consists of a criminal act, and defendant's agency in its production: State v. Dickson, 78 Id. 438; Smith v. Commonwealth, 21 Gratt. 813; People v. Bennett, 49 N. Y. 137; United States v. Williams, 1 Cliff. 25; Ruloff v. People, 18 N. Y. 179; Pitts v. State, 43 Miss. 472; People v. Jones, 31 Cal. 565; State v. Scott, 39 Mo. 424; Johnson v. Commonwealth, 29 Gratt. 811. The fact that a criminal act has been committed constitutes the base of the corpus delicti: Pitts v. State, 43 Miss. 480. The judges in various de cisions mean, when they say that the corpus delicti must be proved beyond a reasonable doubt, that the criminal act must be proved beyond a reasonable doubt before evidence can be introduced of defendant's criminal agency in connection with it: Pitts v.

dence in crimi

State, 43 Miss. 472; People v. Schryver, Oct. 19, 1864, 42 N. Y. 1; State v. Dickson, 78 Mo. $210. 438. The corpus delicti may be proved by circumstantial evidence. Direct Law of evi and positive evidence is unnecessary nal actions. to prove the corpus delicti: United States v. Williams, 1 Cliff. 21, 26; State v. Keeler, 28 Iowa, 551; State v. Dickson, 78 Mo. 438. In all criminal prosecutions, no matter what may be the kind of evidence on which they rest, whether circumstantial or direct, the burden is on the prosecution to prove the corpus delicti: and the people must prove it beyond a reasonable doubt: Wharton's Crim. Ev., sec. 324; People v. Schryver, 42 N. Y. 1; S. C., 1 Am. Rep. 480; People v. Jones, 31 Cal. 565. When there is an entire want of evidence of the corpus delicti, except statements made by the prisoner, the court should direct the jury to acquit the prisoner: People v. Jones, 31 Id. 565; United States v. Mulvaney, 4 Park. Cr..164.

See for a valuable discussion the note to State v. Williams, 78 Am. Dec. 252.

Dying declarations. The admission of dying declarations in evidence in cases of homicide constitute one of the principal exceptions to the general rule rejecting hearsay evidence. They are admitted in evidence from necessity, and because the persons whose declarations are thus admitted are considered as standing in the same situation as if they were sworn; the danger of impending death being equivalent to the sanction of an oath: 1 Greenl. Ev., sec. 157; People v. Glenn, 10 Cal. 32; People v. Lawrence, 21 Id. 368. To be admissible, they must have been made under the belief of impending death; if there was any hope of recovery, the declarations cannot be received: State v. Garrand, 5 Or. 156; Montgomery v. State, 11 Ohio, 424; Commonwealth v. McPike, 3 Cush. 181; S. C., 1 Am. Dec. 727; People v. Gray, 61 Cal. 164; People v. Taylor, 59 Id. 640; People v. Hodgdon, 55 Id. 76. Where several witnesses testify to the declarations, it is not necessary that each should testify as to decedent's sense of impending death; and one may testify as to the declaration and another as to the belief of death: People v. Garcia, 63 Id. 19. As the theory of admission of the evidence is not immediate death after the declaration, but instead the sense of impending death

(Oliver v. State, 17 Ala. 487; Smith v. State, 9 Humph. 9), if the declarant had any hope or expectation, however slight, of recovery, the declaration is not admissible: Commonwealth v. Roberts, 108 Mass. 296; People v. Hodgdon, 55 Cal. 72. The admissibility of the declarations is to be determined by the court: State v. Poll, 1 Hawks, 444; S. C., 9 Am. Dec. 655; Hill's Case, 2 Gratt. 594; but credibility is for the jury: People v. Abbott, 4 West Coast Rep. 132; Ross v. Gould, 5 Mc. 204; and its judgment in this regard is to a certain extent discretionary: State v. Ah Lee, 7 Or. 237.

The rule that no person is incompetent to be a witness in this state on account of his opinions on matters of religious belief applies to dying declarations: People v. Sanford, 43 Cal. 29; People v. Chin Mook Sow, 51 Id. 597. It is held, however, in Goodall v. State, 1 Or. 333, S. C., 80 Am. Dec. 396, that a dying declaration may be impeached by showing that the declarant did not believe in a future state of rewards and punishments. But belief in the Christian religion is not necessary to the admission of declarations: State v. Ah Lee, 8 Or.

214.

Dying declarations cannot be received other than those coming from the deceased person, for whose murder the indictinent is found: Fitzhugh v. State, 2 Or. 227. In a prosecution for murder, the dying declarations of the person alleged to have been murdered are competent against or for the accused. The admissibility of such evidence is not confined to cases in which no other evidence of the killing is obtainable, but is in the sound discretion of the trial court: State v. Saunders, 14 Id. 300. Such declarations are permitted only as to those facts as to which the deceased would have been competent to testify if sworn in the case. But the statement of the deceased concerning the defendant, that "he shot me down like a dog," is not such a conclusion as to be excluded under this rule: Id. Where a dying declaration has been introduced in evidence by the prosecution, the defendant is entitled to prove other statements made by the deceased contradicting his dying declarations: People v. Lawrence, 21 Cal. 368. The fact that a written statement of the declarations made by the deceased, in extremis, was at the

time verified by him, and introduced in evidence at the trial of the party thereby accused of the murder, furnishes no objection to the introduction of oral evidence of the same or similar dying declarations of deceased: People v. Vernon, 35 Id. 49.

Alibi. "Proving an Alibi" is the title of an article reviewing many cases in 6 Crim. L. Mag. 655. For an instruction upon this subject sufficiently favorable to the accused, see People v. O'Neil, 59 Cal. 259. The commission of an offense implies the presence of the defendant at the necessary time and place: People v. Fong Ah Sing, 64 Id. 253. Any evidence that goes to show that the defendant was not present is always competent. Evidence tending to establish an alibi, though insufficient of itself to establish that fact, is not to be excluded from the case: People v. Fong Ah Sing, supra. Adducing it is termed setting up an alibi: 1 Bish. Crim. Proc., sec. 1061; Armstrong v. People, 70 N. Y. 38, 49; Commonwealth v. Choate, 105 Mass. 451. See a case of an attempted alibi, People v. Chin Ah Hong, 61 Cal. 376. It cannot be said, as a matter of law, that an unsuccessful attempt to prove an alibi is a circumstance of "great weight" against the prisoner: People v. Malaspina, 57 Id. 628. The setting up of an alibi does not change the presumptions and burden of proof: Toler v. State, 16 Ohio 583; Fife v. Commonwealth, 29 Pa. St. 429; State v. Josey, 64 N. C. 56. And although a person who relies upon this as a defense must prove it the same as any other fact, yet if on account of the alibi the jury are not satisfied beyond a reasonable doubt of the defendant's guilt, they must acquit him: State v. Cameron, 40 Vt. 555; French v. State, 12 Ind. 170; Gibbs v. State, 1 Tex. App. 12; Otmer v. People, 76 Ill. 149. The proof of the absence of the defendant when the crime was committed should cover the whole time when his presence was required: West v. State, 48 Ind. 483; Briceland v. Commonwealth, 47 Pa. St. 463. But evidence that does not cover the whole time will not for that reason be rejected: Kaufman v. State, 48 Ind. 483. Any competent evidence to disprove an alibi is admissible: Brown v. People, 17 Mich. 429; Commonwealth v. Williams, 105 Mass. 62. The defendant's admissions are admissible for such purpose: Rex v. Findon, 5 Car. & P. 132.

Flight as evidence of guilt. The flight of a person suspected of a crime is a circumstance to be weighed by the jury as tending in some degree to prove a consciousness of guilt: State v. Garrand, 5 Or. 216; and is entitled to more or less weight, according to the circumstances of the particular case. Such evidence is received, not as part of the res gesta of the criminal act itself, but as indicative of a guilty mind: People v. Stanley, 47 Cal. 114; People v. Collins, 48 Id. 277; People v. Wong Ah Ngow, 54 Id. 151; People v. Welsh, 64 Id. 167. This rule extends only to the person fleeing, and not to a case where a conspiracy to commit a crime has been entered into between two or more, and the flight of a co-conspirator is sought to be proved against another on his separate trial: People v. Stanley, 47 Id. 114. Where four men jointly commit a robbery, evidence of the flight of one, on the separate trial of another who did not flee, is admissible to show that after his arrest he had an opportunity to throw away the money stolen: People v. Collins, 48 Id. 277. So if a person when arrested on a charge of larceny, and, after being inforined of the cause of his arrest, escapes or attempts to escape, it is a circumstance that the jury may consider in determining his guilt or innocence: People v. Strong, 46 Id. 302. It does not, however, raise a strong presumption of the defendant's guilt: State v. Arthur, 21 Iowa, 430.

Possession of stolen property as evidence of guilt: See on this subject the extended note to Hunt v. Commonwealth, 70 Am. Dec. 447. The possession of stolen property is merely a circumstance from which guilt may be inferred. It does not raise a presumption of law as to guilt: State v. Hale, 12 Or. 352; People v. Levison, 16 Cal. 98; People v. Ah Sing, 59 Id. 400; Goldstein v. People, 82 N. Y. 231. The strength of the inference depends on surrounding circumstances. The possession, to raise an inference of any strength, must be personal: Knickerbocker v. People, 43 Id. 177; guilty: People v. Getty, 49 Cal. 581; State v. Bruce, 24 Me. 71; unexplained: People v. Hurley, 60 Cal. 74; State v. Butterfield, 75 Mo. 297; and recent: State v. Rights, 82 N. C. 677; State v. Hodge, 50 N. H. 510. Other facts may strengthen or weaken the

inference.

Defendant's declarations Oct. 19, 1864, at the time of receiving the property $210. may be admitted to rebut the inference of guilt: People v. Dowling, 84 N. Y. 478; and so the defendant's explanation if it prove false will strengthen the inference: Rex v. Dibley, 2 Car. & K. 818; State v. Bennett, 2 Tread. Const. 692; Wills's Circ. Ev., p. 57.

Reputation and character of defendant. The defendant in a criminal action is entitled to prove his previous good character for honesty and integrity. Such proof must be taken in consideration by the jury, and weighed with the other evidence in the case, in determining the question of guilt or innocence: State v. Garrand, 5 Or. 156. When proved, it is a circumstance tending in a greater or less degree to establish his innocence: People v. Stewart, 28 Cal. 395; People v. Ashe, 44 Id. 288; People v. Raina, 45 Id. 292; People v. Shepardson, 49 Id. 631; People v. Casey, 53 Id. 360. Evidence on this subject must not be as to a particular fact, but with reference to the whole case then being tried: People v. Milgate, 5 Id. 127. On a trial for murder, the character of the defendant for peace and quiet is involved in the issue of not guilty: People v. Stewart, 28 Id. 395, overruling People v. Josephs, 7 Id. 129, and People v. Lombard, 17 Id. 316. The bad character of the defendant is never admissible in evidence against a defendant as foundation for presuming guilt: State v. Lapage, 56 N. H. 245; State v. Hare, 74 N. C. 591; Harrison v. State, 37 Ala. 154; People v. Fair, 43 Cal. 137. The law presumes his character good, and when this presumption is met by prima facie evidence of guilt, he may introduce evidence of his good character: State v. Garrand, 5 Or. 156; People v. Fair, 43 Cal. 137. The prosecution may then, in rebuttal, show that his character is bad; but not until then can his character be impeached: Id. For the purpose of impeaching the defendant's character, his contradictory statements at other times are admissible: Glaze v. Whitely, 5 Or. 164. The failure of the defendant to introduce evidence of his good character cannot be considered by the jury as a circumstance against him: Ormsby v. People, 53 N. Y. 472; People v. White, 24 Wend. 520.

Character of deceased. - The