5. Interest in or sympathy for others. serve the reputation either of the swearer, or others with whom he is identified in interest or affection. An example of this may be seen in those cases, and they are of frequent occurrence, where the person called as witness has on some former occasion given a certain account of the transaction about which he is interrogated, and is afraid or ashamed to retract that account. $189. Fifthly. The last source of bias which we shall notice is the feeling of interest in or sympathy for others. A man who belongs to a body, or is a member of a secret society, governed by principles unknown to the rest of mankind, comes before the tribunal loaded with the passions of others in addition to his own (s). To this head belong those cases where mendacious evidence is given through the sympathy generated by a similarity of station in life, or a coincidence of social, political, or religious opinion, and the like. This is most usually found in witnesses from the higher walks of society: and it is not easy for a hostile advocate to deal with such witnesses-for although it is evident they are misleading the tribunal, their station and demeanour alike render it unsafe to speak of them as perjured (t). CHAPTER II. REAL EVIDENCE. -what. § 190. "REAL EVIDENCE"-the evidentia rei vel facti Real evidence of the civilians (a)—means all evidence of which any object belonging to the class of things is the source; persons also included in respect of such properties as belong to them in common with things (b). Thus where an of- Sometimes fence or contempt is committed in presence of a tribunal, it has direct real evidence of the fact. So formerly, on an appeal of mayhem the court would in some cases inspect the wound, in order to see if it were a mayhem or not(c); and if the mayhem were obvious, such as striking direct. off an arm, &c., the proof was both real and direct. But Usually circumstantial. in most instances real evidence is only circumstantial in its nature (d), i. e. evidence from which the existence of the principal fact is deduced by inference. evidence. § 191. Real evidence is either immediate or reported (e). Immediate real Immediate real evidence is where the thing which is the source of the evidence is made present to the senses of the tribunal (ƒ)—of all proof the most satisfactory and 8; (a) Mascard. de Prob. Quæst. Calv. Lexic. Jurid. and the judgment of Lord Stowell in Evans v. Evans, 1 Hagg. C. R. 105. (b) 3 Benth. Jud. Ev. 26; 1 Id. 53. (c) 28 Ass. pl. 5; 22 Id. pl. 99; 37 Id. pl. 9 See also Mascardus de Prob. Quæst. 8, n. 10. (d) 1 Benth. Jud. Ev. 55; 3 Id. 33. (e) 3 Benth. Jud. Ev. 33. (f) Where the production of real evidence in open court would be indecent, the jury may inspect it in private; as was done in the case before Lord Hale, where a man successfully defended himself against a charge of rape by shewing that he had a frightful rupture, 1 Hale, P. C. 635, 636. See also Bonnier, Traité des Preuves, § 77. Sometimes exacted by law. Sometimes by practice. convincing" Cum adsunt testimonia rerum quid opus est verbis" (g); but, as already stated, rarely available, at least with respect to principal facts. And so sensible is the law of its transcendant value, that in some cases the production of certain species of real evidence is peremptorily exacted, to the exclusion of all substitutes. Thus, a coroner's inquest to ascertain the cause of the death of a person who has died suddenly can only be held super visum corporis (h). So, when a fine was levied, the parties were required by the ancient statute 18 Edw. I. st. 4, Modus levandi fines, to appear personally before the justices, in order that it might be judged and discerned by them if they were of full age and good memory, &c.(i). And the same seems to hold in the case of a recognizance (k); which is always expressed to be entered into on the personal appearance of the party before the justice who takes it (l). On this principle, in a great degree, rests the just and sound rule of English judicature that the evidence of witnesses must in general be given by them personally in open court; the real evidence afforded by their demeanour being one of the most powerful securities against perjury and fraud. But there are likewise instances where the production of real evidence is exacted by practice. Thus on an indictment for larceny, if the stolen property has been by an idiot, lunatic, &c. was good, for the law presumed that the judge would not allow a party to levy it unless he were of sound mind. See Beverley's case, 4 Co. 123 b; Mansfield's case, 12 Id. 123; and the argument in Molton v. Camroux, 2 Exch. 487. (k) Beverley's case, 4 Co. 124 a. Semble per Parke, B., in Molton v. Camrour, 2 Exch. 493. (1) See the precedents in Dalton, Burn, &c. found the court usually insists on its being produced before the jury. When the goods stolen are of a perishable nature this is of course frequently impossible; neither would it be required when likely to be inconvenient or offensive, as where flesh stolen is in an advanced state of decomposition, &c. So, generally speaking at least, a lunatic whose commission is sought to be superseded on the ground that he has recovered the use of his reason, must appear personally before the Lord Chancellor to be examined in order that that fact may be ascertained (m). Valuable evidence of this kind is sometimes had by means of what is technically termed a "view," i. e. a personal inspection by some of the jury of the place in dispute a proceeding allowed in certain cases by the common law (n), but much extended by the statutes 4 Anne, c. 16, s. 8, and by 6 Geo. IV. c. 50, s. 23 (o), although almost superseded in modern practice by the use of accurate and verified models (p). View. Models. evidence. § 192. Reported real evidence is, where the thing Reported real which is the source of the evidence is not present to the senses of the tribunal, but the existence of it is conveyed to them through the medium of witnesses or documents (q). This sort of proof is, from its very nature, Infirmities of. less satisfactory and convincing than immediate real evidence. "To the reporting witness indeed, if his report be true, it was so much immediate, so much pure real evidence but to the judge it is but reported real evidence. The distinction is far from being a purely (m) In re Dyce Sombre, 1 Phill. Ch. Ca. 436; In re Gordon, 2 Phill. Ch. Ca. 242. (n) F. N. B. 123 C., 128 B., 184 F.; 2 Salk. 665; 2 W. Saund. 44 a, note 4. (0) For the practice relative to view see 2 Tidd, Pr. 795, 798, 9th Ed.; 1 Chitt. Archb. Pract. (p) It is the same in France. (9) 3 Benth. Jud. Ev. 33. Circumstantial real evidence. Chiefly conspicuous in speculative one: practice requires to be directed by it. Reported real evidence is analogous to hearsay evidence, and labours more or less under the infirmities which attach to that modification of personal evidence, compounded of circumstantial evidence and direct,-of real evidence, and ordinary personal evidence (evidence given in the way of discourse): it unites the infirmities. of both. The lights afforded, or said to have been afforded, by the real evidence, are liable to be weakened. in intensity, and altered in colour, by the medium through which it is transmitted" (r). § 193. Circumstantial real evidence partakes of the nature of all other circumstantial evidence in this, that the persuasions or inferences to which it gives rise are sometimes necessary and sometimes only presumptive. And as it is in criminal proceedings that the value and criminal cases. dangers of this mode of proof are chiefly conspicuous, we shall devote the rest of this chapter to a consideration of its probative force and infirmative hypotheses in those proceedings. By "infirmative fact" or "hypofacts, or hypo- thesis" is meant any fact or hypothesis which, while insufficient in itself either to disprove or render improbable the existence of a principal fact, yet tends to weaken or render infirm the probative force of some other fact which is evidentiary of it (s). Infirmative theses. Necessary inferences from circumstantial real evidence. § 194. In the case of necessary inferences, properly so called, there can be no infirmative facts or hypotheses. As instances-where a female was found dead in a room, with every sign of having met a violent end, the presence of another person at the scene of action was demonstrated by the bloody mark of a left hand visible on her left arm (t). (r) 3 Benth. Jud. Ev. 34. And where a man was 10 Harg. St. Tr. App. No. 2, p. 29. |