And if the party have no copy, then parol evidence may be given of the contents; and there is no difference between civil and criminal proceedings in this respect. (d)

But though the best evidence is required, the greatest quantity of existing proof is not. Thus, the execution of a deed, attested by several witnesses, may be proved by one of them; and if no witness can be produced, proof of the signature of one is sufficient. (e) So evidence equal in degree to that for which it is substituted, is sufficient. Thus, the writer of a paper need not be called to prove he wrote it; another may prove the handwriting. (ƒ)

Parol evidence is inferior in degree to written evidence; consequently, written evidence must be first resorted to. (g) But if a party can keep a written instrument out of view, he may, if he can, make a prima facie case by parol, which it lies on the opposite party to rebut. (h)

When a document is not evidence at common law, and a copy is made evidence by act of parliament, a copy must be produced. The original is still inadmissible. (i)

Another general rule is, that the evidence shall be confined to the point in issue. (k) Therefore it is not allowable to show,

*

on the trial of an indictment, that the prisoner has a [ *395] general disposition to commit the same kind of offense as

that for which he stands indicted. Nor is it competent for the prosecutor to give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference that the prisoner has committed the offense in question. (7) (2) But where several offenses

(d) 2 T. R., 201.

(e) Stark. Ev., 391. Matt. Dig., 120.
(f) stark. N. P. C., 167. Stark. Ev., 391.

(g) 8 Barn. & Cress., 708. 1 Barn. & Adol., 33.

(h) Per Bayley, J., 8 Barn. & Cress., 710.
(i) 2 Camp., 121, n. But see 6 T. R., 534.
(k) Roscoe's Cr. Ev., 57. 2 Russ. on Cr., 694.
(1) Roscoe's Cr. Ev., 57. 1 Leigh, 574.

(2) On a trial for a second offense, evidence of the former conviction is not to be rejected because it also goes to prove bad character. (Johnson v. People, 55 N. Y., 512; S. C., 65 Barb., 342.) On the trial of an indictment for an assault and battery, etc., which contains but a single count, after the prosecutor has proved one such act he can not give evidence of another offense, committed at another time. (People v. Hopson, 1 Denio, 574.) On a trial for murder, the prosecution can not show that the prisoner had been indicted for another offense, on the complaint of the deceased. (Stokes v. People, 53 N. Y., 164.) But it is no objection to evidence, on a trial for burglary, that it tends to show that the prisoner has committed a distinct offense, if pertinent to the issue before the jury. (Csborne v. People, 2 Park., 583; Stout v. People, 4 id., 71, 132.) If a prisoner, on cross-examination, without objection, call out facts tending to show that he is not guilty of another offense, this does not justify evidence on the part of the prosecution, to prove him guilty of such offense. (Coleman v. People, 55 N. Y., 81.) Evidence tending to prove any fact constituting an element of the crime charged in the indictment is admissible, though it may also tend to prove the prisoner guilty of some other offense. (Weed v. People, 56 N. Y., 628; S. C., 3 T. & C., 50.) Evidence of the commission of a distinct felony may be given, not for

are connected together and form part of one entire transaction, then the one is evidence to show the character of the other. (n) So overt acts of treason, not expressly charged in the indictment, are evidence, if they be direct proof of any that are laid. (n) So on an indictment for cheating a tradesman, evidence of the defendant's having made false representations to other tradesmen was admitted. (0) Where a person put marked money into a till, and set one to watch, evidence was admitted of several visits to the till by the prisoner, of several inspections of the till in consequence, and of the decrease of the money each time; though it was objected that these were several felonies. (p) So where several articles are found in the prisoner's possession, the prosecutor need not, on the mere probability that the prisoner stole them at different times, confine his evidence to one of them, if they might have been stolen at once. (9)

Where the prosecution is not directly for a crime, but for a penalty, evidence of the character of the prisoner is not admissible. (r) But in trials for felony and treason and also for misdemeanors, where the direct effect of the prosecution is to subject the defendant to corporal punishment, witnesses may be called to testify to his general character; but not as to particular transactions. (s) Evidence of good character, however, will be of no avail in a clear case. (t) (3)

(m) 2 Russ. on Cr, 696.

(n) 4 St. Tr,, 661, 697. Holt, 683. (0) 1 Camp., 400. 4 East, 171, n. (p) 6 Barn. & Cress., 145.

(q) Ry. & Moo. C. C., 148.

(r) 2 Bos. & P., 532.

(8) Matt. Dig., 128. Peake's Ev., 7.
(t) Roscoe's Cr. Ev., 73, n. (1)

the purpose of establishing the fact on trial, but in order to show a motive for committing it. (People v. Wood, 3 Park., 681.) On the trial of an indictment for obtaining money by false pretenses, evidence is admissible that the prisoner and his co-defendants practiced a like fraud upon another person, a day or two previously, in order to establish a fraudulent intent. (Bielschopsky v. People, 3 Hun, 40; S. C., 5 T. & C., 277; 60 N. Y., 616.) Evidence of the circumstances connected with a forgery is not to be rejected because it tends to prove the minor offense of obtaining goods by false pretenses. (Watson v. People, 64 Barb., 130; S. C., 52 N. Y., 645.) On the trial of an indictment for forgery, evidence of the prisoner's admission of the commission of other forgeries is inadmissible. (People v. Corbin, 56 N. Y., 363.) On the trial of an indictment for receiving stolen goods, it is not competent, for the purpose of showing the scienter, to prove that the accused has received other property, from other persons, knowing the same to have been stolen. (Coleman v. People, 55 N. Y., 81.) On the trial of an indictment for petit larceny, proof of attempts to commit other offenses of like character, on distinct occasions, is inadmissible to prove intent. (People v. Justices of Special Sessions, 10 Hun, 158.) On the trial of an indictment for procuring an abortion, the defendant, being examined as a witness in his own behalf, may be asked, on cross-examination, whether he had not committed other offenses of a similar character. (Maine v. People, 9 Hun, 113.) Evidence of the commission of another crime, by the prisoner, is competent where it is relevant and material on the question of the guilt of the prisoner of the crime for which he is on trial. (Hope v. People, 83 N. Y., 418.)

(3) Evidence of good character is available not only in doubtful cases, but where the testimony tends very strongly to establish the guilt of the accused. It may of

It is also a general rule that where the defendant pleads the general issue, not guilty, the prosecutor must prove every fact and cir

itself create a doubt, which would not otherwise exist. (Remsen v. People, 43 N. Y., 6; People v. Lamb, 2 Keyes, 360; S. C., 2 Ab. Pr. [N. S.], 148; Ryan v. People, 10 Ab. Pr., 232; People v. Cole, 4 Park., 35; Stover v. People, 56 N. Y., 315.) But the judge is not bound to charge that proof of previous good character is a sufficient defense in a doubtful case. (Coats v. People, 4 Park., 662.) It is error to charge a jury that evidence of the prisoner's good character is entitled to far inferior weight, where the question is one of great and atrocious criminality, than upon accusation of a lower grade. The presumption of innocence which it raises varies in force with the circumstances, but not with the grade of the crime imputed. (Cancemi v. People, 16 N. Y., 501.) Where evidence of good character is introduced by the prisoner, which is not controverted on the part of the prosecution such evidence is to be considered by the jury. It is not merely of value in doubtful cases, but will, of itself, sometimes create a doubt when, without it, none could exist. And if good character be proved, to the satisfaction of the jury, it should produce an acquittal, even in cases where the whole evidence slightly preponderated against the accused. (Stephens v. People, 4 Park., 396.) Evidence of the prisoner's bad character is not admissible, unless his good character has been attempted to be proved. (People v. White, 14 Wend., 111.) Nor is evidence of the good character of the prosecutrix admissible, on a trial for rape, until first impeached by the prisoner. (People v. Hulse, 3 Hill, 309; People v. Gay, 7 N. Y., 378; S. C., 1 Park., 308.) On a trial for murder, in the absence of any evidence that the deceased had assaulted the prisoner, evidence to show that the deceased was of a quarrelsome, vindictive and brutal character, is inadmissible. (People v. Lamb, 54 Barb., 342 ; S. C., 2 Ab. Pr. [N. S.], 148.) Evidence concerning the previous good character of the accused must be duly considered by the jury; and a charge that the jury may, in their discretion, reject such evidence entirely, is erroneous. (S C., 2 Keyes, 360.) Evidence of good character is not admissible on the trial of an indictment for assault and battery; as this does not necessarily involve moral turpitude. (Gillespie's Case, 4 C. H. Rec., 154.) On a trial for homicide, the character of the deceased as a dangerous, violent and quarrelsome man is not evidence, where it does not appear that such character was known to the prisoner. (Reynolds v. People, 17 Ab. Pr., 413.) Where the prisoner is criminated by an admitted accomplice, the omission to prove good character affords a strong presumption of guilt. (People v. Vane, 12 Wend., 78.) Where the accused is examined as a witness in his own behalf, and the prosecution gives evidence of his bad character, such evidence goes only to the question of his credit as a witness; not to that of his guilt or innocence. (Adams v. People, 9 Hun, 89.) On a trial for murder, evidence of the character of the deceased is not admissible, unless some ground for it is laid in the previous testimony. (Thomas v. People, 67 N. Y., 218.) Where the character of the deceased is attacked by the prisoner, the prosecution may give evidence of his subsequent conduct, in rebuttal. (Id.) Where the evidence is circumstantial, no inference is to be drawn, against the prisoner, from his omission to give evidence of good character. (People v. Bodine, 1 Denio, 281; S. C., Edm. R., 36; Ormsby v. People, 53 N. Y., 472; Ackley v. People, 9 Barb., 609; Donoghoe v. People, 6 Park., 120.)

On a trial for murder it is not erroneous for the court to charge the jury that they have a right to take into consideration all the evidence in the case showing that the acts and conduct of the prisoner previous to the commission of the alleged offense, as well as the testimony of the witnesses speaking directly to his character, for the purpose of determining what his character was. (Carrington v. People, 6 Park., 336.) Habitual criminals.]—Upon proof that a person has been adjudged an habitual criminal, when he is charged with a crime committed thereafter, the prosecution may introduce, upon the trial or examination, evidence as to his previous character, in the same manner, and to the same extent, as if he himself had first given evidence of character, and put the same in issue. (Code Cr. Pro., § 513.)

Upon a trial for murder, the defendant testified that he was attacked by the deceased, and used the knife in self-defense. He then offered to show specific acts of violence, committed by the deceased, on other occasions, upon other people, and also to show the character of the deceased to be bad, from general reputation, for violence. Held that the court properly excluded the evidence tending to prove spe

cumstance stated in the indictment which is material and necessary to constitute the offense. (u) Thus, all facts stated on the face of the indictment which enter into the substance of the offense charged, and all facts necessary to constitute the offense, though not so stated, must

(u) Arch. Cr. Pl. & Ev., 95.

cific acts of violence upon other occasions, but erred in excluding that which tended to show that the general character of the deceased, for violence, was bad. (Nichols v. People, 23 Hun, 165.)

In cases not free from doubt, the jury are at liberty to consider the prisoner's previous good character; but such a defense is not available where the guilt of the accused is clearly established. (People v. Hammill, 2 Park., 223.)

Evidence of a prisoner's good character is admissible in all criminal cases, and is to be considered by the jury, whether the evidence of the prisoner's guilt be doubtful and uncertain, or strong and conclusive; but in the latter case, it is of comparatively little importance. (People v. Moett, 23 Hun, 60.)

A witness called to impeach general character, must be able to state what is generally said of the person by those among whom he dwells, or with whom he is chiefly conversant. (Conkey v. People, 5 Park., 31.)

On the trial of an indictment, the court charged that the fact that the prisoner had failed to introduce evidence as to his previous good character was an element in the case which the jury had a right to take into consideration in determining his guilt or innocence. Held, that this was error; for which the conviction was reversed. (Donog hoe v. People, 6 Park., 120.)

On a trial for murder, it is not erroneous for the court to charge the jury that they have a right to take into consideration all the evidence of the case, showing the acts and conduct of the prisoner previous to the commission of the alleged offense, as well as the testimony of the witnesses speaking directly to his character, for the purpose of determining what his character was. (Carrington v. People, 6 Park., 336.)

The good character of a prisoner can not avail against clear proof of guilt. It is only where doubt exists as to the commission of the crime and the intent of the party, that good character will protect him. (Wagner v. People, 54 Barb., 367; aff'd 2 Keyes, 684.)

Whenever a prisoner, on the trial, puts his general character in issue, by his own act, he takes the risk of its being proved bad, and of every presumption which such proof legitimately raises against him. (Burdick v. People, 58 Barb., 51.) Hence, if he avails himself of the privilege, given by statute, of testifying as a witness in his own favor, he necessarily puts his general character and credibility as a witness in issue, and makes it the proper subject of evidence on that question. (Id.) When he makes himself a witness, he becomes subject to all the rules applicable to other witnesses, notwithstanding his other character, of a party on trial for a felony. (Id.) The statute which allows a prisoner, on trial for a crime, to become a witness in his own behalf, at his election, does not protect him from being impeached, the same as any other witness. (Id.)

Where, upon the trial, no proof is given as to general character of the defendant, the law assumes that it is of ordinary fairness. (Ackley v. People, 9 Barb., 609.) A prisoner on trial may show what his reputation is, and then the question is open to the prosecution, and for the jury to determine, like other controverted facts. But if the prisoner chooses to give no evidence on the subject, the jury are not at liberty to indulge in conjecture that his character is bad, in order to infer that he is guilty of the particular crime charged. (Id.)

The good character of the prisoner is always a proper subject for the consideration of a jury. It may be taken into consideration not only in a case where doubt of guilt exists, but it may sometimes, of itself, generate a doubt in the minds of the jury. But where a clear case of guilt is made out on the proof, evidence of good character is of comparatively little importance. (Lowenberg v. People, 5 Park., 414.)

Evidence concerning the previous good character of the accused must be duly considered by the jury; and a charge that the jury may, in their discretion, reject such evidence entirely, is erroneous. (People v. Lamb, 2 Keyes, 360; 6 Ab. Pr. [N. 8. ], 148.)

be proved. (v) And all the distinctions between material and immaterial averments are equally well settled in criminal as in civil cases. Thus averments wholly unconnected with the charge may be treated as surplusage, and need not be proved. (w) And where averments in an indictment are divisible, it is sufficient if the substantive crime stated be proved, though not to the full extent charged. As where a defendant is charged with having done and caused [*396 ] to be done, &c., proof of either is sufficient; (x) or forged

*

or caused to be forged. (y) So where a man was charged with publishing a libel against magistrates with intent to defame them and also to bring the administration of justice into contempt, Bayley, J. held proof of either intention sufficient. (2)

On an indictment for felony, a felony must be proved; but the defendant may be convicted of a felony of less atrocity than that alleged; as on an indictment for murder he may be found guilty of manslaughter; (a) or when indicted for breaking a house and stealing, he may be convicted of simple larceny. (b) On an indictment under the statute of stabbing, he may be acquitted of the statutable offense and found guilty of felonious homicide. (c) On an indictment for stealing privately from the person, he may be found guilty of the larceny only. (d) On an indictment for grand, the offense may be reduced to petit larceny ; (e) robbery may be softened into felonious theft; (f) and evidence of a man's being a principal in the second degree will support an indictment charging him as principal in the first degree, and e contra. (g) Where an intent is laid to steal the whole, and the evidence is of an intent to steal a part, it seems to be sufficient. (h) And on an indictment founded on a statute the defendant may be found guilty at common law. (¿)

But a defendant can not be found guilty of a misdemeanor on an indictment for felony; because he would by that means lose the benefit of having a copy of the indictment, a special jury, and of making his full defense by counsel.(k)

Where the offense appears from the evidence to be of a higher degree than is alleged in the indictment, it is in the discretion of the court to discharge the jury, and direct another indictment to be pre

(#) 2 Leach, 594.

(w) 1 Chit. Cr. L., 294.

(r) 2 Camp., 593.

(y) 1 Burr., 400.

(2) 3 Stark., 35.

(a) 9 Co., 676

(b) 2 Hale, 203.

(c) Style, 86. 2 Hale, 302.

(d) 1 Leach, 240. 2 Hale, 302.
(e) 2 Hale, 302. 2 Str., 1134.
(f) Id., ib. 2 Hawk., ch. 47, § 6.

(g) Fost., 351. 1 Hale, 122.

(h) Ry. & Moo. C. C., 107.

(i) 2 Hawk., ch. 46, § 178.

(k) Str., 1137. Kel., 29. Cro. Car., 332.