the judges; but the majority of them being of opinion, that the evidence ought to have been received and left to the jury, the judgment below was affirmed. (1)

In trespass for taking goods, the plaintiff can only prove the taking of such goods, as are mentioned in the declaration. And in trespass for assault and battery, or quare clausum fregit, where the declaration charges, that the defendant on a certain day and on divers other days between that day and the commencement of the suit assaulted, &c. the plaintiff may prove any number of trespasses within those limits; or he may prove a trespass beyond the remotest day, waiving all the rest (2). And even after proving several assaults within the days mentioned in the declaration, perhaps he would be allowed to give evidence of assaults committed before that time, as proof of the defendant's malice. So in an action for criminal conversation, the plaintiff may prove several acts of adultery within the times specified; and in addition to this, he may shew indecent familiarities antecedent to the first-mentioned day, though he cannot shew a previous criminal connection.

In an action for slander, the plaintiff, after proving the words as laid in the declaration, may shew also, that the. defendant spoke other actionable words either before or afterwards (3), or that he published other libels (4). This evidence is admissible for the purpose of proving the defendant's malice in publishing or speaking the words, which are the subject of the action. And the distinction, which was at one time made between words actionable and such as are not actionable, (that, in the latter case they might be given in evidence, but not in the former,) (5) has

(1) See infrà, p. 137, as to the proof of knowledge in issuing counterfeit money. (2) Bull. N. P. 86.

(3) Charlter v. Barrett, Peake, N. P. C. 22. Rustell v. Macquister, 1 Campb. 49. Tate v. Humphrey, 2 Campb. 73, (b).

(4) R. v. l'earce, Peake. N. P. C. 74. Lee v. Huson, Peake. N. P. C. 166. Plunkett v. Cobbett, MS. case in 2 Sel. N. P. 938.

(5) Mead v. Daubigny, Peake. N. P. C. 125.

been

been since over-ruled (1). In the last case on this subject,
Finnerty v. Tipper (2), which was an action for a libel
published in a periodical work, Mansfield C. J. refused to
admit in evidence subsequent numbers of the same work,
unless they expressly referred to the libel, for which the ac-
tion was brought; for the subsequent publication, he said,,
might contain the most scandalous imputations, while the
former libel may have been almost nothing; and the ne-
cessary consequence must be, that the jury would give
damages for the second libel in an action for the first,
although the defendant would not have the same oppor-
tunity of proving the truth of its contents, as if it were
made the subject of a distinct action. The Chief Justice
was of opinion that the same restriction was proper, and
had been observed, in actions for words spoken, namely,
that the subsequent words ought to refer to the same sub-
ject; and he drew a distinction between the case then before
him and that of Carr v. Hood, which had been cited for
the admissibility of the evidence; the defence there was,
that the publication in question was fair criticism on the
writings of the plaintiff, and therefore any other papers
published by the defendant, to shew that he was actuated
by malice in publishing the libel complained of, were cer-
tainly admissible evidence. On a review of the cases,
which have been above cited, it will be found that in all of
them except two, namely, Lee v. Huson and Rustell v.
Macquister, the subsequent words or libels, offered in
evidence, did expressly refer to those which were the sub-
ject of the action; and in those two cases, it does not ap-
pear from the reports, whether they had, or had not, such
a reference.

cases.

The same rule applies, if possible, more strongly to cri- In criminal minal prosecutions; in which all manner of evidence ought to be rejected, that is foreign to the point in issue.

This

(1) Rustell v. Macquister, 1 Campb. 49. And see cases cited above.

(2) 2 Campb. 72.

K 4

rule

rule is founded in common justice; for no person can be expected to answer, unprepared and at once, for every action of his life. In treason, therefore, no evidence is to be admitted of any overt act, that is not expressly laid in the indictment. This was the rule at common law; and it is again prescribed and enforced by the statute (1) of Wm. 3. which contains an express provision to that effect, in consequence of some encroachments that had been made in several state prosecutions (2). The meaning of the rule is, not that the whole detail of facts should be set forth, but that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment; but still, if it amount to a direct proof of any of the overt acts which are laid, it may be brought as evidence of such overt acts. (3)

On the trial of an indictment for burglary and larceny (4), it appeared upon the evidence, that the prisoners might have entered the house before it was dark, and that they had not taken any part of the goods at the time when they were discovered in the house; upon which, the counsel for the prosecution proposed to give evidence of a larceny in the house committed by the prisoners on a preceding day; but the Court rejected the evidence, on the ground that it tended to prove a felony of a totally distinct kind; the prisoners were, therefore, acquitted on this charge, but afterwards indicted again for the other offence and convicted.

For the same reason, it would not be allowable to shew, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence, as that charged against him. Thus, in a prosecution for an infamous crime, an admission by the prisoner that he had

(r) 7 W. 3. c. 3. 3. 8. (2) Foster, 245, 6.

(3) Id.

(4) R. v. Vandercomb and Abbott, 2 Leach, Cr. C. 816.

com

committed such an offence at another time and with another person, and that he had a tendency to such practices, ought not to be admitted (1). But on an indictment for uttering a bank note, knowing it to be forged, proof that the prisoner had passed other forged notes of the same kind, is evidence that he knew the note in question to be forged (2); and on a prosecution for uttering counterfeit money, the fact of the prisoner having other counterfeit money upon him, or of his having uttered other pieces of money of the same kind, is evidence of his having known that the money which he uttered was counterfeit (3). Such evidence, far from being foreign to the point in issue, is extremely material; for the head of the offence charged upon the prisoner is, that he did the act with knowledge; and it would seldom be possible to ascertain, under what circumstances the uttering took place, whether from ignorance or with an intention to commit a fraud, without inquiring into the demeanour of the prisoner in the course of other transactions. The more detached in point of time the previous utterings are, the less relation they will bear to that stated in the indictment: and the question then would be, whether the evidence is sufficient to warrant the inference of knowledge at one time, from such particular transactions at another time (4). That is a question entirely for the jury. But whatever weight the evidence may have, (which is quite another consideration,) it is clearly admissible; not as evidence of another offence, but simply of another transaction, in which the prisoner was engaged (5). The same kind of proof is constantly admitted in trials for murder; in which, former grudges and antecedent menaces are evidence of the prisoner's malice against the deceased.

(1) R. v. Cole, Mich. term, 1810, by all the Judges, MS.

(2) R. v. Wylie, 1 New. Rep. 92. R. v. Ball, I Campb. 324.

(3) 1 New Rep. 95.

(4) Id. 94. See suprà, as to presumptive evidence; and Hunter v. Gibson and Johnson, suprà, p. 133.

(5) See also Rickman's case, 2 East. P. C. 1035.

The

The plea of not guilty puts in issue all the material parts of the indictment; and under this plea the prisoner may give in evidence any matter of justification, excuse, or extenuation. And if some other acts of the prisoner, besides those which are the subject of the indictment, are proved against him for the purpose of shewing his design in the affair in question, he will be allowed to explain those parts of his conduct, and with this view may give in evidence other contemporaneous particulars of his conduct, which shew that he had a different design from that imputed to him. This limitation (namely, that the particulars offered in evidence by the prisoner ought to be contemporaneous with those proved on the other side, or at least confined within the same limits, to which the evidence on the part of the prosecution is subject,) appears to be not unreasonable; for otherwise the prisoner would be at liberty to take the whole range of his life, in the course of which his character and his designs may have undergone a complete change. This observation, however, is made with great deference; as the rule certainly appears to have been carried much further in one of the modern state trials, in the case of Horne Tooke (1). In that case, several publications were given in evidence, on the part of the crown, containing republican opinions, which had been distributed by the prisoner during the period assigned in the indictment for the existence of the conspiracy; and this evidence was much relied on, as shewing that the notion of a reform, which was expected to be set up by the prisoner in his defence, was a mere pretext to cover his treasonable designs: to repel this conclusion, the counsel for the prisoner offered in evidence a book, which had been written by the prisoner 12 years before, on the subject of parliamentary reform; the evidence was objected to, as having no relation with the particular transaction in question, and because the prisoner's opinions, whatever they were formerly, might have afterwards changed. But Lord Ch. J. Eyre said, that the

(1) East. P. C. 61.

question