Where an act is in itself unlawful, it is presumed to be criminal, until the contrary appear. Thus on a charge of murder, malice is presumed from the fact of killing: and if there are any circumstances of accident, necessity, or infirmity, of which the prisoner would avail himself in excuse or extenuation, they ought to be proved by the prisoner in his defence, unless they arise out of the evidence produced against him. On an indictment for larceny, proof that the stolen goods were found upon the prisoner is presumptive evidence against him of his having stolen them, so as to call upon him for his defence; and may be sufficient to convict him, if no facts appear in *evidence to repel that presumption.This kind of evidence is frequently strengthened materially by other circumstances, as by proof that about the time of the offence the prisoner was near the spot from which the goods were taken, or that he gave some false account respecting the goods on being charged with the crime, or endeavoured to conceal them, or perhaps tried to prevent an inspection, or by some other proof of suspicious circumstances in his behaviour.(1) On the other hand, the inference arising from the mere fact of possession will often be much weakened, if any considerable time has elapsed between the loss of the property and the finding of it again, or if the property was from its nature likely to pass in the interval through many hands; especially, where the prisoner betrayed. no appearance of guilt at the time of his apprehension.(a) (1) See other cases of presumptive Index, tit. Presumption. idence, in the next section; and see * 125 [130] (a) Where a horse is stolen and is found in possession of a man at such a distance from the place where the horse was missing, in so short a time after as shows he must have come directly from that place, and without any loss of time, that is such evidence as a jury may infer the guilt of the prisoner upon, as it raises a violent presumption against him that he was the taker. It is, however, not conclusive. Any circumstance inducing a probability that the prisoner may have gotten him honestly, will render it improper for a jury to convict. State v Adams, 1 Haywo. 463. * 126 A presumption of fact is in some cases made a presumption of law. Thus in the law of treason, an intention to kill the king may be reasonably inferred from a conspiracy to seize his person and imprison him. "Experience has shewn," says Mr. Justice Foster(1), "that the distance is very small between the prisons and the graves of princes." This is a presumption of fact.But it is fully settled by the best authorities, that such a conspiracy is in law an overt act of compassing the king's death, and in itself a substantive act of high treason within the statute of Edward the Third. The same observation applies to other acts, which have a less immediate and direct tendency to endanger the king's life, such as entering into measures in concert with foreigners in order to effect an invasion of the kingdom; this also is an overt act of compassing the king's death.(1) "It is a presumption of fact so obvious and so undeniable, that the law has adopted it, and made it à presumption of law. So, on an indictment for the murder of a bastard child, the concealment of the death by the mother is a strong circumstance of suspicion against her, if the child is proved to have been born alive. But, unless that is proved, the mere fact of concealment is in its nature equivocal.(a) However, by the statute of 21 J. 1. c. 27. the burthen of proof was cast upon the mother; and unless she proved the negative, namely, that the child was not born alive, that statute did in effect make the concealment conclusive evidence of the murder.This act has been since repealed by the statute 43 G. 3. a. 58. s. 3.; by which the endeavour to conceal the birth is subject to a lighter punishment.* (1) Fost. 196. (a) Vide The State v Love, 1 Bay. 167, *The 4th section enacts, "that it may be lawful for the jury, by whose verdict any prisoner charged with such murder shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, which if born alive would have been bastard, and that she did by secret burying SECT. III. Evidence is to be confined to the Points in Issue. AS the sole object and end of evidence is to ascertain the truth of the several disputed facts or points in issue on the one side or on the other, no evidence ought to be admitted to any other point. (131] In an action of assumpsit, the defendant under the Non assumpsit. general issue of non assumpsit may give in evidence any thing which shews, that the plaintiff at the time of the commencement of the suit, had not a good cause of action, or that nothing is due(1), as, performance, or payment(a); or may shew a release(2), or accord and satisfaction(3), or discharge before breach(4)(b), as a legal excuse for non-performance; or that the contract was different from that *stated (as, that it was made with the plaintiff and other persons not named(c) in the action(5), or with one of the plaintiff's alone)(6); or may disaffirm (1) Bull. N. P. 152. 4 Taunt. 165. (2) Bull. N. P. ib. Hawley v Peacock, 2 Campb. 558. 4 Taunt. 165. Miller v Aris, 3 Esp. N. P. C. 234. (3) Paramore v Johnson, 1 Ld. Ray. 566 12 Mod. 376. S. C. Huxham v Smith, 2 Campb. 19. So also in an action for slanderous words, Lane v Ap plegate, 1 Stalkie, 97. (4) 12 Mod. 538. S. P. Admitted 1 Mod. 262. (5) Leglise v Champante, 2 Str. 820. (6) Wilsford v Wood, 1 Esp. N. P. C. 183. See as to variance in proof of contract, post. * 127 er otherwise endeavor to conceal the birth thereof, and thereupon it shall be lawful for the court to adjudge, that such prisoner shall be committed to the common gaol or house of correction for any time not exceeding two years. It has been determined by the opinion of all the Judges, that the prisoner may be found guilty of the concealment, whether charged with the murder by the coroner's inquisition or on a bill of indictment returned by the grand jury. See R. v Cole, 3 Campb. 371. (6) Although made after the commencement of the suit, if before trial. Bird v Randall, 3 Burr. 1345. Baylies & Another v Fettyplace & Another, 7 Mass. Rep. 325. (5) Or the record of a former judgment between the same parties on the same cause of action. Rose v Learned, 14 Mass. 154. (c) Vide Baker v Jewell, 6 Mass. Rep. 460. Converse Symmes, 10 Mass Rep. 377. the contract by shewing, that the plaintiff, who sues as a feme sole, was married at the time of the contract; or [132] that the defendant, who is sued as a feme sole, was then married; or that the defendant, who is sued as a married woman, was at the time of the delivery of the goods married to another man, her first husband, who is still alive (1); or may avoid the contract by shewing that it was(a) usurious(2), or founded on a gaming or other illegal transaction(3), or that the defendant was an infant (b)at the time of making the promise(4), or that he was made to sign the supposed written agreement in such a state of intoxication, as not to know what he did. (5)But the defendant cannot, under the plea of non assumpsit, shew any matter, that would not go to the gist of the action, but merely to discharge it, as the statute of limitations (6); and though it should appear on the face of the declaration, that the cause of action did not arise within six years before the commencement of the action, yet the defendant can only take advantage of this, by pleading the statute. Nor will the defendant be allowed to prove under the general issue, that the contract was not with himself alone, as stated in the declaration, (c) but jointly with other persons still liv ing(7); for proof that another contracted, is not evi (1) Cowley v Robertson and wife, 3 Campb. 118. (2) 1 Str. 498. Bull. N. P. 152. (4) 1 Salk. 279. Bull. N. P. 152. (5) Pitt v Smith 3 Campb. 33. (7) Rice v Shute, 5 Burr. 2611. Ab. hot v Smith, 2 Blac. Rep. 946. Cowp 832. (a) Vide Cuyler v Robinson, 3 Day 68. Levy v Gadsby, 3 Cranch 180. (b) Vide Wailing v Toll, 9 Johns. Rep. 339. Stansbury Marks, 4 Dall. 130. But infancy of the plaintiff must be pleaded in abatement. Schermerhorn v Jen. kins, 7 Johns. Rep. 373. A want of jurisdiction in the court must, in general be pleaded in abatement; but it may be shown, under the general issue, that there is no court in the country which has jurisdiction of the cause. Rea v Haydon, 3 Mass. Rep. 24. (c) Vide Ziele v Executors of Campbell, 2 Johns. Cas. 382, Robinson v Fisher, 3 Caines' Rep. 99. dence that the defendant himself did not contract. Such an objection can only avail, when the fact is pleaded in abatement. And although it should appear on the evidence produced on the part of the plaintiff, that other persons are liable as joint contractors with the defendant, this is no variance, and the plaintiff will be entitled to recover.(1)(a) *The rule which has been just laid down with respect. * 128 to joint contracts, either written or by parol, applies al- Non est factum, so to the case of joint bonds. If an action is brought against one obligor alone, who pleads non est factum, the plaintiff may maintain his action, notwithstanding that on the production of the bond there appears to be a joint obligor,(2)(b) and although the bond is declared [133] upon as the joint bond of the defendant and two other persons, it will be sufficient to prove the execution by the defendant alone.(3)(c) The plea of non est factum 'puts it in issue, whether it be the defendant's deed at the time of pleading. It may therefore be proved, under this issue, that the party was incompetent to make a deed, or that the delivery of the writing was absolutely void as an execution; thus, it may be shewn, that the defendant was at the time of the delivery a lunatic(2); or (1) Germain v Frederick, and Evans Lewis, 1 Saund. 291: c. d. in note. (2) Whelpdale's case, 5 Rep 119. Cabell v Vaughan, 1 Saund. 291. Gaulton v Cualiner, 1 Saund. 291. f. note. South v Tanner, 2 Taunt. 254. (3) Middleton v Sandford, 4 Campb. 31-The bond, in this case, was the (4) Yates v Boen, 2 Str. 1104. (a) A promise must be proved to have been made by all the defendants, who are laid in the declaration to have made it, otherwise the plaintiff will fail under the general issue. Tom v Goodrich & others, 2 Johns. Rep. 213. (b) Vide I Bos. & Pul. 72. Mounstephen v Brooke, 1 B. & Aldison Rep. 224. So also on a joint and several bond where the defendant pleads performance. Hollingsworth v Denton, 3 Munford 168. (c) On non est factum pleaded to a bond, it is not sufficent to prove the execution by a person who executed in the name of the defendant without proof of Hentity. Parking v Hankshare, 2 Starkie 139. |