KFLCC Kingdom Law 2nd Ed.

447

EVIDENCE

EVIDENCE

17 Or. 84, 21 Pac. 47; Civ. Code Ga. 1895. fi 5164. Secondary 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 lost or inaccessible; as when a witness details orally the contents of an instrument which is lost or destroyed. Wil liams v. Davis, 56 Tex. 253; Baucum v. George, 65 Ala. 259; Roberts v. Dixon, 50 Kan. 436, 31 Pac. 1083. Evidence is either direct or indirect. Direct evidence is evidence directly proving any mat ter, as opposed to circumstantial 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 op posed to secondary, although in point of fact it usually is primary. Brown; Com. v. Webster, 5 Cush. (Mass.) 310, 52 Am. Dec. 711; Pease v. Smith, 61 N. Y. 477; State v. Calder, 23 Mont. 504, 59 Pac. 903; People v. Palmer, 11 N. Y. St. Rep. 820; Lake County v. Neilon, 44 Or. 14, 74 Pac. 212. Indirect evidence is evidence which does not tend directly to prove the con troverted fact, but to establish a state of facts, or the existence of other facts, from which it will follow as a logical inference. Inferential evidence as to the truth of a disputed fact, not by testimony of any witness to the fact, but by collateral circumstances ascertained by com petent means. 1 Starkie, Ev. 15. See Code Civ. Proc. Cal. 1903, § 1832; Civ. Code Ga. 1895, § 5143. Evidence is either intrinsio or extrinsic. In trinsic evidence is that which is derived from a document wthout anything to explain it. Ex trinsic evidence is external evidence, or that which is not contained in the body of an agree ment, contract, and the like. Compound and descriptive terms.—Ad minicular evidence. Auxiliary or supple mentary evidence, such as is presented for the purpose of explaining and completing other evi dence. (Chiefly used in ecclesiastical law.)— Circumstantial evidence. This is proof of various facts or circumstances which usually attend the main fact in dispute, and therefore tend to prove its existence, or to sustain, by their consistency, the hypothesis claimed. Or as otherwise defined, it consists in reasoning from facts which are known or proved to estab lish /such as are conjectured to exist. See, more fully, CIRCUMSTANTIAL EVIDENCE.—Compe tent evidence. That which the very nature of the thing to be proven requires, as, the pro duction of a writing where its contents are the subject of inquiry. 1 Greenl. Ev. § 2; Chap man v. McAdams, 1 Lea (Tenn.) 504; Hor baeh v. State, 43 Tex. 249. Also, generally, ad missible or relevant, as the opposite of "incom petent," (see infra ) State v. Johnson, 12 Minn. 476 (Gil. 378), 93 Am. Dec. 241.—Conclusive evidence is that which is incontrovertible, ei ther because the law does not permit it to be contradicted, or because it is so strong and con vincing as to overbear all proof to the contrary and establish the proposition in question beyond any reasonable doubt. Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; Haupt v. Pohlmann, 24 N. Y. Super. Ct. 121; Moore v. Hopkins, 83 Cal. 270, 23 Pac. 318, 17 Am. St. Rep. 248; West v. West, 90 Iowa, 41, 57 N. W. 639; Freese v. Loan Soc, 139 Cal. 392, 73 Pac. 172; People v. Stephenson, 11 Misc. Rep. 141, 32 N. Y. Supp. 1112.—Corroborative evidence. Strengthening or confirming evidence; addition al evidence of a different character adduced in support of the same fact or proposition. Code Civ. Proc. Cal. § 1839.—Cumulative evi dence. Additional or corroborative evidence to the same point. That which goes to prove what has already been established by other evidence. Glidden v. Dunlap, 28 Me. 383; Parker v. Hardy, 24 Pick. (Mass.) 248; Waller v. Graves,

comprehends everything that may be adduced at a trial, within the legal rules, for the purpose of producing conviction in the mind of judge or jury, aside from mere argument; that is, every thing that has a probative force intrinsically, and not merejy as a deduction from, or com bination of, original probative facts. But "evi dence" is a narrower term, and includes only such kinds of proof as may be legally presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, rec ords, or other documents. Thus, to urge a pre sumption of law in support of one's case is ad ducing proof, but it is not offering evidence. "Testimony," again, is a still more restricted term. It properly means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depo sitions. Thus, an ancient deed, when offered under proper circumstances, is evidence, but it could not strictly be called "testimony." "Be lief" 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 bill of exceptions states that all the "testimony" is in the record; but this is not equivalent to a statement that all the "evi dence" is in the record. Testimony is one species of evidence. But the word "evidence" is a generic term which includes every species of it. And, in a bill 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 bill only contains all of that species of evidence. The statement that all the testimony is in the record may, with reference to judicial records, properly be termed an "affirmative pregnant." Gazette Printing Co. v. Morss, 60 Ind. 157. The word "proof seems properly to mean anything which serves, either immediately or mediately, to convince the mind of the truth or falsehood of a fact or proposition. It is also applied to the conviction generated in the mind by proof properly so called. The word "evi dence" signifies, in its original sense, the state of being evident, •. e., plain, apparent, or no torious. But by an almost peculiar inflection of our language, it is applied to that which tends to render evident or to generate proof. Best, Ev. §§ 10, 11. Classification. There are many species of evidence, and it is susceptible of being classified on several different principles. The more usual divisions are here subjoined. Evidence is either judicial or extrajudicial. Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact, (Code Civ. Proc. Cal. § 1823;) while extrajudicial evi dence is that which is used to satisfy private persons as to facts requiring proof. Evidence is either primary or secondary. Primary evidence is that kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents. Secondary evidence is that which is inferior to primary- Thus, a copy of an instrument, or oral evidence of its contents, is secondary evi dence of the instrument and contents. Code Civ. Proc. Cal. §§ 1829, 1830. In other words, primary evidence means orig inal or first-hand evidence; the best evidence that the nature of the case admits of; the evi dence which is required in the first instance, and which must fail before secondary evidence can be admitted. Thus, an original document is primary evidence; a copy of it would be sec ondary. That evidence which the nature of the case or question suggests as the proper means of ascertaining the truth. See Cross v. Baskett,