indictment is not liable to objection; and, in fact, every count purports on the face of it to contain a distinct charge (d); however, in trials for felonies, as soon as it appears from the prosecutor's opening, or otherwise, that the case extends to more than one charge, it has been the practice for judges, in their discretion, to confine the prosecutor's evidence to a single transaction, lest the prisoner should be embarrassed in his defence by a variety of charges. But the principle on which this practice rests is entirely forgotten, when this discretion of the court is applied to prevent the full proof of one connected transaction involving the felony charged, because in such transaction another felony is involved, which must also appear in proof if the whole transaction is sifted. Accordingly, the better considered and more recent decisions all show that the prosecutor may prove everything necessary to elucidate a single charge, although in so doing he must show other felonies as a medium of proof. Thus, in a recent case (e), where the prosecutor, suspecting the prisoner, had put marked money into his till, and caused him to be watched; the prosecutor was suffered to prove several visits to the till by the prisoner, several inspections of the till consequent upon those visits, and the several results of those inspections, viz. that the money was each time reduced. It was objected that this was admitting proof of several felonies. And an application was made to the king's bench to stay the judgment, on the ground that the prosecutor ought to have been confined to proof of a single felony; but that court held that the judge had a discretion to allow evidence of several felonies when they formed part of one transaction. On the argument Mr. Justice Holroyd mentioned a case (f), in which, at a trial for robbery effected by a threat of a shocking accusation, he allowed evidence of an attempt by the prisoner at another time to obtain other property of the prosecutor; and the judges, on the point being stated to them, agreed that he was warranted in receiving the proof. Evidence even of three distinct burglaries, when necessary to the history of one, has been received, and the admission of the proof had the high sanction of Lord Ellenborough's approval (g). And where a number of articles are found in the prisoner's possession, the mere probability that he stole them at different times, is no ground for requiring the prosecutor to confine

(d) Ante, p. 170.

(e) R. v. Ellis, 6 B. & C. 145; 9 D. & R. 174, S. C.

(f) R. v. Egerton, R. & Ry. 375. (g) R. v. Wylie, 1 New R. 91. In R. v. Trueman, 8 C. & P. 727., five counts

in arson. Each charged the firing the house of a different owner. Evidence that the five houses were in a row, and one fire burnt all. Erskine, J., refused to put the prosecutor to elect, saying it was all one transaction.

his evidence to one of them, if nothing shows that they might not have been stolen at once (h). And though, on an indictment for a felonious receiving, if it distinctly appear that articles were received at different times, the prosecutor may be required to elect on which act of receiving he will found his case, he may still give evidence of the other receivings as proof of guilty knowledge (i).

The prosecutor may, as it seems, be called on to make this election, at any part of the trial; but if the judge refuse the prisoner's request that he may do so, it will not invalidate the conviction. This was the opinion of all the judges in a case where the same parties were charged in one count as principals in larceny, and in another as receivers: though they were equally divided in opinion whether or not, in point of discretion, the prosecutor should have been put to his election (j).

More than one Indictment against the same Party.]—Again, where a person was separately indicted for offences of a nature totally distinct, as shooting at a keeper, and night poaching, the prosecutor was not put to his election to abandon either indictment; the evidence was received at the trial of the latter without directing abandonment of, or acquittal on, either (k). So where the subject matter of one untried indictment was material to be proved as part of the facts of another (1). In one case, where the very corpus delicti, for which an outstanding indictment was found, e. g. stealing a coat of a gamekeeper, was proposed as part of the proof to corroborate a prosecution pending against the same prisoner for night poaching on the same occasion, the evidence was rejected unless the prosecutor would consent to an acquittal of the larceny (m).

Giving Evidence of other Utterings to prove guilty Knowledge.]-It is now completely settled that on an indictment for uttering forged notes or counterfeit coin, the prosecutor may give evidence of other utterings of similar notes or coin, though they are not charged on the record, as evidence of guilty knowledge (n). It is reported, indeed, that in one instance, Vaughan, B., refused to admit evidence of an uttering for this

(h) R. v. Dunn and Smith, 1 Moody's C. C. 148.

(i) Id. ibid.

(j) R. v. Galloway, 1 Mood. C. C. 234.

(k) R. v. Handley, 5 C. & P. 565.
(1) R. v. Salisbury, 5 C. & P. 155.

See R. v. Smith, 2 C. & P. 633.

(m) R. v. Westwood, 4 C. & P. 447; but the authority of this case was denied in R. v. Edwards, Berks Assizes, 26 Feb. 1839, by Patteson, J., stating the opinions of the other judges, MS. Tyr. (n) R. v. Ball, R. & Ry. 132.

M M

purpose, it being the subject of a distinct indictment (0); but in another case, the same learned judge allowed the evidence to be given, on the counsel for the prosecution abandoning the other indictment, though the prisoner had pleaded to it at the time, and the jury were sworn to try it (p). This interposition must be regarded as a mere exercise of judicial discretion; for it is impossible to point out any rule of law on which the evidence could be rejected.

The practice of confining the evidence to a single transaction, is limited to felonies. In misdemeanours, several distinct offences, as assaults and libels, if charged separately in the indictment, may all be proved at the trial (q).

A previous conviction of the prisoner is not to be given in evidence to a jury till after they have convicted him of the charge before them, except when evidence to his character is given (r).

SECTION IX.

OF THE NECESSITY OF PRODUCING THE BEST EVIDENCE WHICH APPEARS TO BE IN EXISTENCE.

Ir is a general and invariable rule of evidence, both in civil and criminal cases, that whether the proof be offered on the part of the prosecution or of the defence, the best evidence must be produced of which the nature of the case will allow (s). The meaning of this rule is, not that the greatest quantity of proof which might be obtained shall be imperatively required, but that nothing shall be admitted as proof, which, being in its own nature secondary, implies

(0) R. v. Smith, 2 C. & P. 633. Denied by Patteson, J., as in note (m); and see R. v. Page, Shrewsbury Summ. Ass. 1837.

(p) R. v. Moss, Hereford Summer Assizes, 1827. In a subsequent case at Stafford, the same learned judge proposed to reserve the point; but there the evidence was not pressed, and the prisoners were convicted without it. On that occasion, it was also contended that the prosecuting counsel could not abandon the indictment charging the uttering which he purposed to prove ; and the learned judge proposed to reserve this point in case the evidence should be pressed, and the prisoner's counsel persist in his objection. Sup

posing the doctrine carried to this extent, the greatest inconvenience would follow; for either the examining magistrate must take on himself to decide on which case of uttering, perhaps out of several, the prisoner must ultimately be tried; or he must bind over persons to prosecute, who by the act of preferring indictments in obedience to their recog nizance, would be actually affording the prisoner the certain means of escape, by striking out all evidence of his guilty knowledge.

(q) Ante, p. 171; 2 Campb. 132. (r) 6 & 7 W. IV. c. 111, ante, p. 509.

(s) Bul. N. P. 293.

the existence of primary proof, unless it be shown that such primary proof is destroyed, or is out of the reach of the party desiring to use it. Thus no copy of any document can ever be read, unless it be either proved that the original is lost, or is in the possession of the adversary; and further, that the party who offers the copy has done all in his power towards the production of the original, in the first case by making diligent search for it, and in the last by giving a timely notice to produce it. Again, the execution of a deed or will can only be proved by one of the subscribing witnesses, if he be living; but it is never necessary in point of law to call more than one, although there may be three names on the face of the instrument (t). In general, where matter in writing is to be proved, no parol evidence of its contents can be received, unless it be first proved that the writing is destroyed, or in the possession of the opposite party; but where the writing is not itself the fact to be proved, but is only one means of evidencing a fact, other means of proof may be at once adopted. Thus, the payment of money may be proved by a witness who saw it paid, or to whom the party receiving it has admitted the payment, although a receipt was given at the time (u). And if several persons are present at the same transaction, and one of them only makes a memorandum to refresh his memory, the evidence of the witnesses who made no memorandum will not be excluded (v).

Proof of Loss of Document.]-Where the original of any document is lost, it must be shown that all reasonable search was made for it in the places where it is likely to be found. If the instrument be traced to the possession of a particular person, that person must be called, and it will not suffice to show an application to him for it, and his answer that he cannot find it (w). And where an individual is by law entitled to the custody of an instrument, it is absolutely necessary to call him to disprove the presumption that he possesses it (x); or if he is dead, to prove a search of his papers (y). If two parts of a deed be executed, the non-production of both must be accounted for, before secondary evidence can be given of either (z). And all the witnesses to an instrument must be proved to be dead or abroad, or not producible on diligent inquiry, before evidence of the handwriting of

any can be given; but when this is done, proof of attestation by one will suffice; and except to show the identity of the parties, it is never necessary to prove the handwriting of the party executing (a).

Notice to Produce.]-Where an instrument is in the possession of a prisoner, notice to produce it must be given him as in a civil cause, or secondary evidence cannot be given (b). But this notice is not necessary where the nature of the charge implies that the instrument is in the possession of the prisoner, the instrument being the very object of the proceeding. Thus, on an indictment for stealing a security, parol evidence of its contents may be given without any notice to produce it (c). Again, on an indictment for forging a note, which the prisoner, on his apprehension, has swallowed or destroyed, no notice to produce is requisite (d). Where notice to produce is necessary, it may be by parol or in writing (e); if in writing, it should be intituled in the prosecution (ƒ); and should express, if not with literal, at least with substantial accuracy, the document required, so as to leave no reasonable doubt which is meant. For a notice to produce "all letters, papers, and documents relating to the cause," has been held too vague (g); but a different opinion seems now to prevail (h). Notice to produce "all letters written by plaintiff to defendant relating to matters in dispute in the action," was held good, though no dates were given, because the names of the parties were mentioned (i). The mere fact of an instrument being in court, in possession of the adversary, will not justify the reception of secondary evidence, except after proper notice to produce (j). If it is not shown that the instrument was ever in the prisoner's possession, no notice is necessary (k). The notice must be served either on the prisoner or his attorney, as in civil

(a) Whitelock v. Musgrave, 3 Tyrw. R. 541; Logan v. Allder, id. 557, n. (b) R. v. Watson, 2 T. R. 201, n. (a). (c) R. v. Aickles, 1 Leach, 294. (d) R. v. Spragge, cited by Lord Ellenborough, in Hare v. Hall, 13 East, 124.

(e) Smith v. Young, 1 Campb. 440. (f) Harvey v. Morgan, 2 Stark. N. P. C. 17.

(g) France v. Lucy, Ry. & M. N. P. C. 341. See Jones v. Edwards, M'Clell. & Y. 139.

(h) Rogers v. Custance, 2 M. & Rob. 179, Q. B. in banc : exactly contrary to France v. Lucy, which however was not cited.

(i) Jacob v. Lee, 2 M. & Rob. 33, Patteson, J.

(j) Bate v. Kinsey, 4 Tyrw. 662; 1 Cr., M. & R. 38.

(k) An officer called to produce a warrant under which he had acted, swore he lost it in the affray which ensued on his reading it at the offender's house, and had searched his pockets for it shortly after, while taking him to gaol, without finding it. A boy proved a search in the road between the house and the place where it was missed. No notice to produce, or search of the offender's house was proved; Vaughan, B., admitted secondary evidence, R. v. Hood and others, 1 Mood, C. C. 281.