Definition of law of evidence. tation, includes the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. Proof is the effect or result of evidence.-Schloss vs. His Creditors, 31 Cal., p. 203; 1 Greenlf. Ev., p. 1; Willis. Circumst. Ev., p. 2; 1 Stark Evidence., p. 10; 1 Phil. Ev., p. 1; Whately's Logic, B. 4, Chap. 3, Sec. 1. 1825. The law of evidence, which is the subject of this part of the Code, is a collection of general rules established by law: 1. For declaring what is to be taken as true without proof; 2. For declaring the presumptions of law, both those which are disputable and those which are conclusive; and, 3. For the production of legal evidence; 4. For the exclusion of whatever is not legal; 5. For determining, in certain cases, the value and effect of evidence. NOTE. "It is sometimes said of the law of evidence, as of the other branches of the law, that its rules are well defined, well understood, and stable. The entire opposite would be nearer the truth. The books abound with contradictory, fluctuating, and inconsistent opinions. The following may be taken as specimens: "Lord Mansfield said, in the case of Lowe against Joliffe, 1 Bl., p. 366: We don't now sit here to take our rules of evidence from Siderfin or Kebie.' "Lord Kenyon: All questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives, our liberty, and our property are all concerned in the support of these rules, which have been matured by the wisdom of ages, and are now revered for their antiquity and the good sense in which they are founded. They are not rules depending on technical refinements, but upon good sense, and the preservation of them is the first duty of the Judges. 3 Term Rep., p. 721, King vs. Eriswell. "The same Lord Kenyon, in Bent vs. Baker, 3 Term Rep., p. 32: 'I premise, with mentioning what was said by Lord Mansfield on this subject, that the old cases, upon the competency of witnesses, have gone upon very subtle grounds. I must acknowledge that there have been various opinions upon this subject, and "Ashhurst: There is so great a contradiction in "Buller, on the same occasion: This case involves in it the question which has been so repeatedly agitated in Courts of law, what objections go to the credit and and what to the competency of the witness; than which, no question is more perplexed.' "Grose once said: The distinction between competency and credit is by no means accurately settled. In many of the books, the shade between them is so light that the boundaries of either can hardly be perceived; but in all the books which treat of evidence there are certain technical rules laid down which are highly beneficial to the public, and ought not to be departed from.'-See N. Y. Reported Code C. P., Sec. 1661. of certainty required to establish 1826. The law does not require demonstration; The degree that is, such a degree of proof as, excluding possibility of error, produces absolute certainty; because such facts. proof is rarely possible. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. NOTE. In the ordinary affairs of life we do not require demonstrative evidence, because it is not consistent with the nature of the subject, and to insist upon it would be unreasonable and absurd. The most that can be affirmed of such things is that there is no reasonable doubt concerning them. The true question, therefore, in trials of fact, is not whether it is possible that the testimony may be false, but whether there is sufficient probability of its truth; that is, whether the facts are shown by satisfactory evidence. Things established by satisfactory evidence are said to be proved.-1 Greenlf. Ev., p. 1; see also Gambier's Guide to the Study of Moral Evidence, pp. 121-196. As mathematical or absolute certainty is seldom to be attained in human affairs, reason and public utility require that Judges and all mankind, in forming their opinion of the truth of facts, should be regulated by 47-VOL. II. Four kinds of evidence specified. Several degrees of evidence specified. Original evidence defined. 1827. the superior number of probabilities on the one side or the other; whether the amount of these probabilities be expressed in words and arguments, or by figures and numbers. The principal difference to be remarked between civil and criminal cases with reference to the modes of proof by direct or circumstantial evidence is, that in the former, where civil rights are ascertained, a less degree of probability may be safely adopted, as a ground of judgment, than in the latter case, which affects life and liberty. In criminal prosecutions the circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony, and to exclude a rational probability of innocence. Doubtless the circumstances ought to be of such a nature as not to be reasonably accounted for on the supposition of the prisoner's innocence, but perfectly reconcilable with the supposition of the prisoner's guilt.-1 Phil. Ev., Chap. 10, and notes; 3 Stark Ev., p. 481; Plunket's Case, 3 C. H. Rec., p. 137; Atwood's Case, 4 C. H. Rec., p. 91. There are four kinds of evidence: 1. The knowledge of the Court; 2. The testimony of witnesses; 3. Writings; 4. Other material objects presented to the senses. 1828. There are several degrees of evidence: 2. Direct and indirect; 3. Primary, partial, satisfactory, indispensable, and conclusive. NOTE. This classification is new. 1829. Original evidence is an original writing or material object introduced in evidence. NOTE.-Original evidence would correspond with the definition of primary evidence, as given by Mr. Greenleaf, so far as it is "the best evidence or that kind of proof which affords the greatest certainty of the fact in question, the instrument itself being always regarded as the primary or best possible evidence of its existence and contents. Until it is shown that the production of the original evidence is out of the party's power no other proof of the fact is in general admitted.-See Secs. 1855 and 1856, post, and notes; see Greenlf. Ev., p. 121, and notes; Sebree vs. Dorr, 9 Wheat., p. 558; Hart vs. Yunt, 1 Watts, p. 253. Copies sometimes regarded as original evidence.-See Sec. 1947, po-t. The rule is that the best evidence which the nature of the case is susceptible of must be adduced.-McCann vs. Beach, 2 Cal., p. 25. The word "original" is given in Worcester's Dictionary as a synonym for "primary." Probably original evidence as defined by this section would include almost all that evidence which has heretofore been included by Messrs. Greenleaf, Starkie, and Phillips, under the term primary evidence or the best evidence. Mr. Phillips uses the terms original and primary evidence as synonymous and in opposition to secondary evidence. Best on Evidence (Sec. 89) says "the terms 'primary' and 'secondary' evidence are used by our law in the limited sense of the original and derivative evidence of unwritten documents." And again the same author defines original evidence to be that which "has an independent probative force of its own." So that we may safely say that the term “original evidence” as used in Sec. 1829, corresponds to the term "primary evidence" as heretofore used. In general primary evidence is defined to be "the best evidence or that proof which most certainly exhibits the true state of facts to which it relates." The law requires this and rejects secondary or inferior evidence when it is attempted to be substituted for evidence of a higher or superior kind. McCann vs. Beach, 2 Cal., p. 25. For instance, if a written contract is to be proved, it is requisite to produce the original writing if it is to be attained; and in that case no copy or other inferior evidence will be received.-See Secs. 1855, 1856, and 1947, post, and notes. There would be grounds for a reasonable suspicion that the substitution of inferior for better evidence arose from sinister motives, and an apprehension that the best evidence, if produced, would alter the case to the prejudice of the party. This rule relates not to the measure or quantity of evidence, but only to its quality, when compared to some other evidence of superior degree. Since this rule refers only to the quality and not the quantity of evidence, it is apparent that the fullest proo, that the case admits of is not necessary. If there are several eye witnesses to a fact, it may be proved sufficiently by only one. It is not necessary always when the matter to be proved has been reduced to writing that the writing should be produced. For instance, though the narrative of a fact has been taken down in writing, yet the fact may be proved orally. A receipt for the payment of money, it has been held, will Secondary evidence dorned. not exclude oral evidence of payment.-4 Esp., p. 213; 7 Barnew. & C., p. 611; 1 Camp., p. 439; 3 Barnew. & Ald., p. 566; see Sec. 2075, post; see note to Sec. 1830. 1830. Secondary evidence is a copy of such original writing or object, or oral evidence thereof. NOTE.-See Secs. 1855, 1856, 1919, 1937, post, and notes; see, also, note to Sec. 1829, ante. Secondary evidence is that evidence which is admissible when the original evidence cannot be produced, and which becomes by that event the best evidence.-Armstrong But it must vs. Morgan, 3 Yeates, Penn., p. 530. clearly appear that the original evidence is not obtainable. The person having the original must be applied to. In case the opposite party has the original in his possession, notice to produce such original evidence must be proved before the secondary evidence will be admitted.-See Secs. 1937, 1938, post, and notes; see, also, Sec. 1000, ante; Grimes vs. Fall, 15 Cal., p. 63; Poole vs. Gerrard, 9 Cal., p. 584; Burke vs. T. M. W. Co., 12 Cal., p. 403. If there was a counterpart of the original, it should be produced before a mere copy or oral testimony is admitted.-6 Term, p. 236. If there is no counterpart, a copy may be proved in evidence by witnesses who know that it is a copy from having compared it with the original.-Buller Nisi Prius, p. 254; 1 Kebl., p. 117; 6 Binn., Penn., p. 234; 2 Taunt., p. 52; Mass., p. 273. Secondary evidence of the contents of a deed or grant is admissible where the possession of the original is traced to the possession of a party not in the State.-Gordon vs. Searing, 8 Cal., p. 49. Secondary evidence must always be received with caution, and then not until every means is shown to be exhausted in the effort to procure that which is superior.-Norris vs. Russell, 5 Cal., p. 249. It has been held that there are no degrees in secondary evidence, and when a party has laid the foundation for such evidence, he may prove the contents of a deed by parol, although it appears that an attested copy is in existence. - Brown vs. Woodman, 6 Carr. & P., p. 206. In the case of Doe d. Gilbert vs. Ross, in the Exchequer, where proper notice to produce an original document had been given without success, it was held that the party giving the notice was not afterwards restricted as to the nature of the secondary evidence he would produce of the contents of the document; and, therefore, having offered an attested copy of the deed in that case, which was inadmissible in itself for want of a stamp, it was held: that it was |