will be presumed if he has not been heard of for seven years. (d) (1) And the death of a party without issue has been presumed after one hundred years. (e) Proof that a person sailed for the West Indies two or three years ago, and that the ship has not since been heard of, is presumptive evidence of his death; but the time of death, if material, must depend upon the circumstances of the case. (ƒ) After twenty years a legacy will be presumed to be paid; or a bond, unless kept alive by admissions or payments. So, after twenty years' possession by the mortgagee, a mortgagor will be presumed to have abandoned his equity of redemption. (g) And after an entry upon land, under a contract to purchase, and a possession by the purchaser for over thirty years, claiming as owner, a deed in fee from the original vendor or those succeeding to his rights may be presumed. () The law prima facie presumes that a public officer does his duty. (¿) And where a person is bound to do a certain act, the omission to do which would be a culpable neglect of duty, the performance of it will be presumed, unless the contrary is proved. (k) But [455] the presumption * that a public officer has done his duty, is not conclusive. It may be overthrown by proof. (7) It should never be allowed to sustain a vital jurisdictional fact. (m) The existence of a person, personal relations, or a state of things, once established by proof, is presumed to continue without change, till the contrary be shown; and the character of a witness established to be good or bad, by his neighbors, some years before a trial, will be held still to be such when he has removed and lived for some time in another neighborhood, unless shown to be otherwise. (n) But there is no absolute presumption of law as to the continuance of life, nor any absolute presumption against a party doing an act because the doing of it would make him guilty of an offense against the law. In every instance the circumstances of the case must be considered. (0) (d) 6 East, 84. 4 Barn. & Ald., 430. (e) 8 Barn. & Cress., 22. (f) 1 Stark. N. P. Ca., 121. (g) Matt. Dig., 124. 3 Dow. & Ry., 240. (h) 4 Barb., 566. (i) 9 Cowen, 110. (1) OF DEATH. (k) 19 John., 345. (0) 1 House of L. Cas., 498. Absence for seven years.]-A person upon whose life an estate in real property depends, who remains without the United States, or absents himself, in the state or elsewhere, for seven years together, is presumed to be dead, in an action or special proceeding concerning the property, in which his death comes in question, unless it is affirmatively proved that he was alive within that time. (Code Civ. Pro., '§ 841.) The distinction between presumption and proof is that the one may be false, but until shown to be so must be regarded as true; that the other (the facts upon which it is founded being admitted) can not be otherwise than true. (p) All those numerous presumptions which stand for proof till overturned, are of the first class in the above order, or violent presumptions. The second class (probable presumptions) seems to embrace all those circumstantial proofs, the effect of which is not reducible to rules, and must therefore go to a jury in order to be weighed upon the force of the circumstances. And this seems to be more properly denominated circumstantial evidence. (4) Presumptive or circumstantial evidence, of which the jury are the exclusive judges, should be carefully distinguished from what the law calls prima facie evidence. The latter is, in judgment of law, sufficient to establish the fact; and if not rebutted, remains sufficient. (7) As regards the effect of presumptive evidence, the rule, even in a capital case, is, that should the circumstances be sufficient to convince the mind, and remove every rational doubt, the jury is bound to place as much reliance on these circumstances as on direct and positive proof; for facts and circumstances can not lie. (s) (2) (p) 2 Ev. Poth., 329, No. 16, § 14. (7) Cowen & Hill's Notes to Phil. Ev., 307. 3 Stark., 478. (r) 6 Peters, 622, 631. (8) Per Livingston, J., 2 City Hall Rec., 143. 1 Wash. C. C. Rep., 372. (2.) When one accused of the crime of murder is required to account for his whereabouts at a particular time, to avoid the force of criminating circumstances, his omission to produce such evidence is not, in law, conclusive of the facts in dispute. (Gordon v. People, 33 N. Y., 501.) The absence of an attempt to account for his whereabouts, when it appears to be in the power of the prisoner to do so, is strong presumptive evidence against him. But the force of such circumstances must be left for the consideration of the jury. And it is error for the court to instruct them that it is of a "conclusive character;" or that, by such omission, doubtful evidence of guilt "ripens into certainty." (Id.) The presumption that a party intends the ordinary and probable consequences of his act, is not conclusive, but may be rebutted by competent evidence. (Filkins v. People, 69 N. Y., 101.) The possession of stolen goods, where the prisoner does not account for such possession, raises but a presumption of guilt, which may be rebutted by circumstances. (Bell's Case, 6 C. H. Rec., 96.) The presumption of dereliction, applicable to lost inanimate chattels, does not apply to stray domestic animals, as to which there is always supposed to be an animus revertendi. (People v. Kaatz, 3 Park., 129.) Every one is presumed to be innocent until the contrary is proved; and if there is reasonable doubt of a person's guilt, he is to have the benefit of such doubt. In criminal cases, in order to convict, the testimony must be such as to satisfy the jury, beyond a rational doubt, that the prisoner is guilty. Such doubt, however, should be well grounded-not mere possibility or speculation. Everything relating to human affairs and depending upon moral evidence, is open to some possible or imaginary doubt. But no one is to be required to explain or contradict until enough has been proved to warrant a just and reasonable conclusion against him, in the [* 456] *CHAPTER VI. HEARSAY EVIDENCE. HEARSAY evidence is the deposing on oath to certain facts, which are only known to the witness by the relation of some other person. (a) (a) 2 Hawk., ch. 4, § 46. Roscoe's Cr. Ev., 15. Bull. N. P., 294. absence of explanation or contradiction. (1 Arch. Cr. Pl., 117, note; United States v. Gooding, 12 Wheat., 460; People v. Bodine, 1 Denio, 281.) A person on trial for a felony is entitled to have the jury charged that innocence should be presumed, until the case against the defendant, in all its material circumstances, is proved beyond a reasonable doubt; and that the evidence ought to be strong and cogent, to justify them in finding the defendant guilty as charged. (Moorer v. State, 44 Ala., 15.) In criminal cases the law requires that guilt shall be established beyond any reasonable doubt. In cases affecting life or liberty, the evidence must be so conclusive as to exclude any rational doubt of the defendant's guilt. (Connor v. State, 34 Texas, 659; Dorsey v. S. ate, id., 651.) The mode of reasoning and drawing conclusions from facts and circumstances is the same, whether the case under consideration is a mere contest respecting the rights of property, or one involving the life of an individual; except that in criminal cases the accused must be presumed to be innocent until the contrary is clearly established by proof which leaves no reasonable doubt on the mind. (People v. Thayer, 1 Park., 596.) Presumptive, or circumstantial evidence is admissible both in civil and criminal cases; and in prosecutions for some of the worst species of crimes, it is often the most satisfactory and convincing that can be produced. (Id.) Seal --A seal, upon an executory instrument hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed. (Cole of Civ. Pro., § 840.) Official certificates.]—Where the officer, to whom the legal custody of a paper belongs, certifies, under his hand and official seal, that he has made diligent examination, in his office, for the paper, and that it can not be found, the certificate is presumptive evidence of the fact so certified, as if the officer personally testified to the (Id., § 921.) same. Where a public officer is required or authorized, by special provision of law, to make a certificate, or an affidavit, touching an act performed by him, or to a fact ascertained by him, in the course of his official duty, and to file or deposit it in a public office of the state; the certificate or affidavit, so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated by special provision of law. (Id., § 922.) Notary's certificate, when presumptive evidence.]-(See id., §§ 923, 924.) Of service of notice.]—(Id., § 927.) Marriage certificate.]-(Id., § 928.) Book of foreign corporation as evidence of corporate acts or transactions. (Id., §§ 929, 930, 931.) Statutes, or other written laws, etc., of another state, territory, or country; when printed copies presumptive evidence. (Id., § 942.) Books of reports of decisions in other states, etc., when presumptive evi dence of unwritten or common law thereof. (Id.) Record of observations of the weather, taken under the direction of the signal service of the United States; when presumptive evidence. (Id., § 945.) Pedigree, births, and marriages.] On account of the great difficulty of proving remote facts by living witnesses, hearsay and reputation (which latter is the hearsay of those who may be supposed to have known the fact handed down from one to another) have been admitted as evidence in cases of pedigree. (b) Thus declarations of deceased members of a family are admissible to prove relationship, as whom a person married, how many children he had, the time of a marriage, or birth of a child, and the like, of which it can not be reasonably presumed that better evidence can be procured. (c) The declarations of a relative are admissible, notwithstanding that, if he were alive, he would stand in pari jure with the party in whose behalf such evidence is tendered, and would have the same rights to recover. (d) But declarations of servants and intimate acquaintances are not admissible to prove a pedigree. (e) Nor is a pauper's hearsay evidence of the declarations of his deceased putative father, as to the birthplace of the pauper, admissible. (f) The declarations of deceased persons as to whether they were married, or whether the person in (b) 10 East, 120. (c) Phil. Ev., 238. (d) Ry. & Moo. N. P. Cas., 141. (e) 2 Bing., 86. Intent to bribe.]-Proof of the payment of money, or delivery of any valuable thing to or for the use of any person or persons engaged or accustomed to be employed in lobbying, or attempting to influence legislation by personal attendance upon the legislature, except where such payment is shown to have been actually and in good faith made for some lawful purpose, and without intent, directly or indirectly, to violate the provisions of this act, shall be presumptive evidence of the offense mentioned in the preceding third section of this act. (Laws of 1869, ch. 742, §4; 3 R. S., 7th ed., 2504.) Of intent in cases of maiming.]-In a prosecution for maiming, the infliction of the injury is presumptive evidence of the intent. (Penal Code, § 206.) See Burke v. People (4 Iun, 481); Godfrey v. People (5 id., 369). Of carrying, etc., with intent to use, concealed weapons.]—The possession by any person other than a public officer, of any of the weapons specified in section 410, Penal Code concealed or furtively carried on the person, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of that section. (Penal Code, § 411.) Placing or affixing business advertisements on property or fence of another.]—The placing or affixing of any words, characters, device, or notice of any article, business or other thing specified in the last section (643) is presumptive evidence that the proprietor, vendor or exhibitor thereof caused or procured the same to be so placed or affixed. (Id., § 644.) Of continuance of life.]-The presumption that a person, proved to have been alive at a particular time, is still so, holds until it is rebutted by lapse of time, or other satisfactory proof. (Whart. Cr. L., § 309; Com. v. Herrman, 4 Barr., 269; Whart. Cr. Ev., §§ 324, 810.) Of rape.-Presumptive evidence is admissible to prove the offense of rape. (Russ. & Ry. C. C., 519.) Although, by the common law of England, a person under fourteen years of age is conclusively presumed to be incapable of committing a rape, in New York the presumption is not conclusive, and may be overcome by showing that the party charged had attained to puberty. (People v. Randolph, 2 Park., 174.) The proof of capacity must be clear, however. (Id.) [ 60 ] 945 question was born before or after marriage, are evidence. (g) Declarations made upon a point after a suit or controversy has arisen, are inadmissible. (h) Public or general rights.] A general right may be proved by traditionary evidence; a particular fact can not. (i) Thus, what old deceased persons had said concerning the boundaries between two parishes and manors, was admitted; though they were parishioners, and claimed rights of common which would be enlarged by their declarations, there not then being any dispute as to their right; but not as to particular facts or transactions. (k) If the declarations, however, have been made after a controversy has arisen with regard to the point in question, they are inadmissible. (7) It is [457] not necessary, in order to exclude the evidence, to * show that the controversy was known to the person making the declaration. (m) The term controversy must not be merely understood as signifying an existing suit. (n) But it seems that the commencement of a controversy must be taken to be the arising of that state of facts on which the claim in question is founded, without anything more. (0) Before a customary right can be proved by evidence of reputation, a foundation must be laid by showing acts of ownership; and then what old persons who were in a situation to know these rights have been heard to say concerning them, is admissible. (p) Where hearsay is part of the transaction.] Where the inquiry is into the nature and character of a certain transaction, not only what was done, but what was said by both parties during the continuance of the transaction, is admissible, as being part of the transaction in question; for to exclude it then, might exclude the only evidence the case admits of; (2) as the declaration of a party of a hurt he received, made immediately on his receiving it, from an assault. (r) In cases of this nature, it is not the relation of third persons unconnected with the fact, which is received, but the declarations of the parties to the fact, themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar (g) 2 Cowp., 591. Ry. & Moo., 297 (h) 4 Camp., 401. (i) 5 T. R., 123. (k) 14 East, 331, n. 1. (1) Roscoe's Cr. Ev., 22. 3 Campb., 444. id., 415. 2 Selw. N. P., 712, 4th ed. 11 Price, 180. 2 Conn. R., 349. 1 Peters' S. C. Rep., 328. 2 Leigh, 655. (m) 4 Campb., 417. (n) 2 Russ. & Myl., 161. (0) 6 Car. & Payne, 552, per Alderson, B (p) 1 Maule & Sel., 687. (9) Roscoe's Cr. Ev., 17. (r] Skin., 402. 6 East, 193. 3 Esp., 276. |