Page:Black's Law Dictionary (Second Edition).djvu/455

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comprehends everything that may be adduced at 1 trial, within the legal ruies, for the purpose of producing conviction in the mind of judge or .Iu_ry, aside from mere argument: that is, every- thing that has a probative force intrinsically, and not mereiy as a deduction from, or combination of, original probative facts. But “evidence" is a narrower term, and inciudes only such kinds of proof as may be legaliy presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, records, or other documents. Thus. to urge a presumption of law in support of one‘s case is adducing proof, but it is not offering evidence. “Testimony," again, is a stiii more restricted term It properly means only such evidence as is deiiv-ered by I], witness on the trial of a cause, either orally or in the form of affidavits or depo- sitions. "l‘hus, an ancient deed, when offered under proper circumstances is evidence, but it c_ouid not strictiy be called ‘testinioiI_\ " “Be- iic " is a subjective condition resulting from proof. It is a conviction of the truth of a proposition, existing in the mind, and induced by persuasion. proof, or argument addressed to the judgment.

The bili of exceptions states that aii the " stimony" is in the record: but this is no equivaient to a statement that all the "evi- dence' is in the record. Testimony is one species of evidence. But the word “evidence" is a genetic term which includes every species of it. And. in a hill of exceptions, the general term covering all species should be used in the statement as to its embracing the evidence, not the term “testimony." which is satisfied if the bili only contains all of that species of evidence. The statement that all the testimony is in the record may, with refcrence to judicial records, properly he termed an "nlfix-inativc pregnant." Gazette Printing Co. v. Morss, G0 Ind. 157.

The word “proof” seems properiy to mean anything which serves, eitiicr immediately or medistely. to convince the mind of the truth or faischood of a fact or proposition. It is also applied to the conviction generated in the mind by proof properly so ciiilcd. The word “evi- dence" signifies, in its original sense, the state of being evident, 9'. e., pinin, apparent, or notorious. But by an almost peculiar infiection of our language. it is applied to that which tends to render cvidcnt or to generate proof Best. Ev. §§ I0, 11.

Classification There are many species of evidence, and it is susceptihie of being cinssificd on several different principles. The more usual divisions are here subjoined.

Evidence is either judicial or emtraiudicial. Jiidlcinl evidence is the means. s-inctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact, Code C-iv. Proc. Cal. § 1823 :) while extrajudicia evi- dence is that which is used to satisfy private persons as to facts requiring proof.

Evidence is either primary or aacimrlary. Primary evidcnce Is that kind of evidence which, under every possible circumstance. affords the greatest certainty of the fact in question.

has. a written instrument is itseif the hat possibie evidence of its existence and contents. Secondary evidence is that which is inferior to primary. has. a copy of an instrument, or orsi evidence of its contents, is secondary evi- deuce of the instrument and contents. Code Civ. Proc. Cal. §§ 1829. 1S30.

In othe'i'- words. pflmary evidence means orig- inal or first-hand evidence; the best evidence that Hie nature of the case admits of; the evi- dence which is required in the first instance, anil which must faii beforesecoudnry evidence can be admitted. Thus, an original document is primary evidence; a copy of it would be secondary. That evidence which the nature of the case or question suggests as the proper means of ascertaining the truth. See Cross v. Baskett,



17 Or. 84, 21 Pac. 47: Civ. Code Ga. 1395, 5 5164. Sccoizdriry evidence is that species of evidence which becomes admissible as being the next best, when the primary or best evidence of the fact in question is iost or inaccessible: as when a witness details orally the contents of an instrument which is lost or destroyed. Willianxs v. Davis. 56 Tex. 253: I’-ziucum ‘v. George, (55 Ala. 259; Roberts v. Dixon, 50 Kan. 43G. 31 Pac. 1083.

Evidence is either direct or indirect. Direct evidence is evidence directly proving any matter, as opposed to circurnstantiiil evidence. which is often called "indirect." It is usually conclusive, but, like other evidence, it is falli- ble, and that on various accounts. It is not to be confounded with primary evidence, as opposed to secondary, alihough in point of fact it usually is primary. Brown; Com. v. “'eIister, 5 Cash. (l\lass.) 3l0, 52 Am. Dec. 711; Peuse v. Smith, (51 N. Y. 477; Slate v. Cnidei-, 23 l\lnnt. 50-1. 50 Pac. 903: People v Palmer. 11 N. Y. St llcp. 820; Lake County v i\'eiion, 4-! Or. 14. 74 Pac. 212. Indirect evidence is evidence which does not tend directiy to prove the controverted fact, but to esrahiish a store of farts, or the existence of other facts. from which it wlil foiiow as a iogical inference. Inf:-rential evidence as to the truth of a disputed fact, not by testimony of any witness to the fact, but hy collateral circumstances ascertained by competent mcuns. Slarlsie. Flv. 15. Scc (‘uile

' . Proc. ('al. 1903. § 1S32; Civ. Code Ga. 1." 5. § 5143.

Evidence is either iiitrinsio or cztrinsic. Intrinsic evidence is that which is derived from a document wtboiit an_i thing to explain it Extrinsic evidence is externai evidence, or that which is not contained in the body of an agreement, contract, and the like.

Compound and descriptive tel'ms.—Ail- minicular evidence. Auxiliary or siippie— mentai-y evidence. such as is presented for the purpose of explaining and compli-ling other evi- dence. (Chiefly used in ecciesiasticni liin-.)— Circumstantial evi nee. This is proof of various facts or circunisiances which nsuaily attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypolhcsis claimed. Or as otherwise defined. it consists in reasoning from facts which tire known or proved to estab- lish such as are conjectured to exist. Scc. more fully, CIRCUMSTANTIAL EVIDENCE.—CDxnp2- tent evidence. That which the very nature of the thing to be proven rcqiiircs, as, the pro- duction of a writing where its contents are the

subject of inquiry. 1 Green]. Ev. § " rip- man v. McAdams. 1 Lou (Tenn) 50 . Flor- bach v. State. 442 Tex. 249. Aiso. gene y. admissible or relevant, as the opposite of ‘ nonm-

petent," (see iiifm_) State v. Johnson. l2 “ion. 47!? (Gii. 378). 93 Am. Dec 2-‘ll.-Conclusive evidence is that iiiiich is incontrorcrtihic. either becausc the in“ does not permit it to be contradicted, or because it is so strong and con- vincing as to overheat‘ all proof to the contrary and establish the proposition in question he; oud any reosonabie doubt Wood v. Chopin. 13 N Y .09. '7 Am. Dec. 62: Flnupt v. Poliiinnnn. 24 N. Y. Super. Ct. 121: Moore v. Hopkins. 8 Cal. 270. 2.! Pac. 313. 17 Am. St West v. “lest, 90 Iowa. 4] 57 N. W.

Frcese v. Lnnn Soc., 139 Cal. 992. '73 Pac. 1 People v. Stcphensnn. 11 Misc. Rrp. 141. Y. Supp. 1112.—Cor1~o'bo1-ative evi enne. Strengthening or confirming evidence- ai evidence of a different ('i‘I}lI"'|Cl(‘I' support of the same fact or prupns . Civ. Proc. Cal. § 1&J!l.—Cnmlilative evi- dence. Additionai or corroborative evidence to the same point That which goes to prove what has airendy been estahlished by other evidence. Giiddcn v. Duniiip, 28 He. 383: Pzirlicr v.

Hardy, 24 Pick. (BL es.) 248; Walicr v. Graves.