Indispensable evidence deined. Conclusive evidence defined. distinct from those which respect its sufficiency or effect; the former being exclusively within the province of the Court, the latter belonging exclusively to the jury.-1 Greenleaf Ev., p. 2; see Columbian Ins. Co. vs. Lawrence, 2 Peters, p. 25; Bank of U. S. vs. Corcoran, 2 Peters, p. 121; Van Ness vs. Pacard, 2 Peters, p. 137. What circumstances amount to proof can never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury on the one hand. Absolute, metaphysical, and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature to circumstantial evidence. To acquit upon light, trivial, and fanciful suppositions and remote conjectures, is a virtual violation of the juror's oath, and an offense of great magnitude against the interests of society, directly tending to the disregard of the obligations of a judicial oath, the hindrance and disparagement of justice, and the encouragement of malefactors. On the other hand, a juror ought not to condemn, unless the evidence exclude from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he is so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest; and in no case, as it seems, ought the force of circumstantial evidence, where it is adequate to conviction, to be inferior to that which is derived from the testimony of a single witness, the lowest degree of direct evidence.-1 Stark. Ev., p. 514. 1836. Indispensable evidence is that without which a particular fact cannot be proved. NOTE. The law makes certain evidence necessary to the validity or proof of particular acts. For example, treason must be proved by the testimony of two witnesses to the same overt act.—See this subject discussed, Secs. 1967-1974, post, and notes. 1837. Conclusive or unanswerable evidence is that which the law does not permit to be contradicted. For example, the record of a Court of competent jurisdiction cannot be contradicted by the parties to it. 1838. NOTE.-Reed vs. Easton, 1 East., p. 355; Stein vs. Bowman, 13 Pet., p. 209. The judgment roll of a Court of superior jurisdiction, if it does not show on its face affirmatively a want of jurisdiction, is conclusive evidence of its jurisdiction over the case.-Hahn vs. Kelly, 34 Cal., p. 416; see, 1 Greenleaf Ev., p. 14, et seq., and cases cited in notes. Mr. Best draws a distinction between estoppels and conclusive evidence and holds they are not synonymous.-Best on Ev., pp. 673, 674. lative Cumulative evidence is additional evidence Cumuof the same character, to the same point. 1839. NOTE.-Cumulative evidence is that which goes to prove what has already been established by other evidence.-Bouv. Law Dict., Title "Cumulative Evidence." evidence defined. Corroborative evidence is additional evi- Corrobo dence of a different character, to the same point. rative evidence defined. TITLE I. OF THE GENERAL PRINCIPLES OF EVIDENCE. SECTION 1844. One witness sufficient to prove a fact. 1845. Testimony confined to personal knowledge. 1847. Witness presumed to speak the truth. 1848. One person not affected by acts of another. 1849. Declarations of predecessor in title evidence. 1850. Declarations which are a part of the transaction. 1851. Evidence relating to third person. 1852. Declaration of decedent evidence of pedigree. 1853. Declaration of decedent evidence against his successor in interest. 1854. When part of a transaction proved, the whole is ad missible. 1855. Contents of writing, how proved. 1856. An agreement reduced to writing deemed the whole. One witness Testimony confined to knowledge. SECTION 1861. Terms to be construed in their general acceptation. 1862. Written words control those printed in a blank form. 1863. Persons skilled may testify to decipher characters. 1864. Of two constructions, which preferred. 1344. 1865. A written instrument construed as understood by parties. 1866. Construction in favor of natural right preferred. 1867. Material allegation only to be proved. 1858. Evidence contined to material allegation. 1869. Affirmative only to be proved. 1870. Facts which may be proved on trial. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason. 1845. A witness can testify of those facts only personal which he knows of his own knowledge; that is, which are derived from his own perceptions, except in those few express cases in which his opinions or inferences, or the declarations of others, are admissible. Testimony to be in presence of persons affected. Witness presumed to speak the truth. One person not affected by acts of another. 1343. A witness can be heard only upon oath or affirmation, and upon a trial he can be heard only in the presence and subject to the examination of all the parties, if they choose to attend and examine. 1847. A witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence; and the jury are the exclusive judges of his credibility. NOTE.-Stat.. 1868, p. 193; Sees, 2651, 2052, post. 1848. The rights of the party cannot be preju diced by the declaration, act, or omission of another, except by virtue of a particular relation between them; therefore, proceedings against one cannot affect another. NOTE. Declarations of third parties, not parties to the record, are not admissible, except where they have a joint interest with the plaintiff or defendant, or where tions of in title 1849. Where, however, one derives title to real Declaraproperty from another, the declaration, act, or omission predecessor of the latter, while holding the title, in relation to evidence. the property, is evidence against the former. NOTE.-1 Greenlf. Ev., Secs. 109-111. It was held that if an estoppel in pais is claimed against a vendee, arising from the admissions of his vendor, the party making such claim must show that his acts in relation to the property were induced by such declarations or admissions.-Duel vs. Bear Riv. & A. Co., 5 Cal., p. 84; see Visher vs. Webster, 8 Cal., p. 109. As a general rule, the vendor is not a competent witness to impeach the validity of a sale made by himself. But when evidence is introduced showing collusion between vendor and purchaser to defraud creditors of former, the declarations of the vendor are admissible, and, a fortiori, his sworn statement.-Howe vs. Scannell, 8 Cal., p. 325; Visher vs. Webster, 8 Cal., p. 109; Borland vs. Mayo, 8 Ala. (N. S.), p. 112. Declarations of a vendor of personal property subsequent to his sale are not admissible to defeat the title of his vendee, either when used as proof of fraud or any other act in avoidance of the sale; and the cases of Landecker vs. Houghtaling, 7 Cal., p. 391, and Visher vs. Webster, 8 Cal., p. 109, go only so far as to declare that the admissions of the vendor made before the sale is completed, are admissible to show his own fraud. Even to this extent the authorities have been much divided.-Cohn vs. Mulford, 15 Cal., p. 52; see 3 Phil. Ev., pp. 616, 619, 630, notes; sec, also, Paige vs. O'Neil, 12 Cal., p. 483; Gallagher vs. Williamson, 23 Cal., p. 331. The statements of the vendor, whether before or after sale, may be evidence against him to prove his fraud.-Gallagher vs. Williamson, 23 Cal., p. 331. It was held that the "declarations of the vendor of personal property made before the sale, are admissible for the purpose of showing a fraudulent intent on his part; but declarations made after the sale stand upon a different ground and cannot be received.-Jones vs. Morse, 36 Cal., p. 207, approving Landecker vs. Houghtaling, 7 Cal., p. 391; Paige vs. O'Neil, 12 Cal., p. 496; Visher vs. Webster, 13 Cal., p. 58; Cohn vs. Mulford, 15 Cal., p. 50; Cahoon vs. Marshall, 25 Cal., p. 202. The declarations of a party have been held to be always admissible against himself or those claiming under him, without reference to the time when, or place where, they were made. In the same case, also, it was held that in determining whether title ever vested under the Van Ness Ordinance on a stale claim, all the acts and declarations, wherever made, are admissible against the party claiming, for the purpose of ascertaining what he did really do to bring himself within the purview of the ordinance.-McFadden vs. Wallace, 38 Cal., p. 51. The declarations of a grantor, made subsequent to his deed, in the absence of his grantee, and while such grantee is in the exclusive possession under such deed, cannot be given in evidence to impeach or impair the validity of the title thus transferred.-Spanagel vs. |