KFLCC Kingdom Law 2nd Ed.

448

EVIDENCE

EVIDENCE

events, and the testimony of men.— Newly-dis covered evidence. Evidence of a new and material fact, or new evidence in relation to a fact in issue, discovered by a party to a cause after the rendition of a verdict or judgment therein. In re McManus, 35 Misc. Rep. 678, 72 N. Y. Supp. 409; Wynne v. Newman, 75 Va. 816; People v. Priori, 164 N. Y. 459, 58 N. E. 668.— Opinion evidence. Evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves; not admissible except (under certain limitations) in the case of experts. See Lipscomb v. State, 75 Miss. 559, 23 South. 210.— Oral evidence. Evidence given by word of mouth; the oral tes timony of a witness.— Original evidence. An original document, writing, or other ma terial object introduced in evidence (Ballinger's Ann. Codes & St. Or. 1901, § 682) as distin guished from a copy of it or from extraneous evidence of its contents or purport.— Parol evidence. Oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence, given by witnesses in court. 3 Bl. Comm. 369. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as ex traneous evidence or evidence aliunde. (See supra.) — Partial evidence is that which goes to establish a detached fact, in a series tending to the fact in dispute. It may be received, sub ject to be rejected as incompetent, unless con nected with the fact in dispute by proof of other facts; for example, on an issue of title to real property, evidence of the continued possession of a remote occupant is partial, for it is of a detached fact, which may or may not be after wards connected with the fact in dispute. Code Civ. Proc. Cal. § 1834.— Positive evidence. Direct proof of the fact or point in issue; evi dence which, if believed, establishes the truth or falsehood of a fact in issue, and does not arise from any presumption. It is distinguish ed from circumstantial evidence. 3 Bouv. Inst, no. 3057; Cooper v. Holmes, 71 Md. 20, 17 Atl. 711; Davis v. Curry, 2 Bibb (Ky) 239; Com. v. Webster, 5 Cush. (Mass.) 310, 52 Am. Dec. 711.—Presumptive evidence. This term has several meanings in law. (1) Any evidence which is not direct and positive; the proof of minor or other facts incidental to or usually connected with the fact sought to be proved, which, when taken together, inferentially estab lish or prove the fact in question to a reason able degree of certainty; evidence drawn by human experience from the connection of cause and effect and observation of human conduct; the proof of facts from which, with more or less certainty, according to the experience of mankind of their more or less universal connec tion, the existence of other facts can be deduced. In this sense the term is nearly equivalent to "circumstantial" evidence. See 1 Starkie, Ev. 558; 2 Saund. PI. & Ev. 673; Civ. Code Ga. 1895, § 5143; Davis v. Curry, 2 Bibb (Ky.) 239; Horbach v. Miller, 4 Neb. 44; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137. (2) Evidence which must be received and treated as true and sufficient until rebutted by other testimony; as, where a statute provides that certain facts shall be presumptive evidence of guilt, of title, etc. State v. Mitchell, 119 N. C. 784, 25 S. E. 783; State v. Intoxicating Liq uors, 80 Me. 57, 12 Atl. 794. (3) Evidence which admits of explanation or contradiction by other evidence, as distinguished from conclusive evidence. Burrill, Circ. Ev. 89.— Prima facie evidence. Evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. Crane v. Morris, 6 Pet 611, 8 L- Ed. 514; State v. Bur-

20 Conn. 310; Roe v. Kalb, 37 Ga. 459. All evidence material to the issue, after any such evidence has been given, is in a certain sense cumulative; that is, is added to what has been given before. It tends to sustain - the issue. But cumulative evidence, in legal phrase, means evidence from the same or a new witness, sim ply repeating, in substance and effect, or adding to, what has been before testified to. Parshall v. Klinck, 43 Barb. (N. Y.) 212. Evidence is not cumulative merely because it tends to es tablish the same ultimate or principally contro verted fact. Cumulative evidence is additional evidence of the same kind to the same point. Able v. Frazier, 43 Iowa, 177.— Documentary evidence. Evidence supplied by writings and documents of every kind in the widest sense of the term; evidence derived from conventional symbols (such as letters) by which ideas are represented on material substances.— Evidence aliunde. Evidence from outside, from another source. In certain cases a written instrument may be explained by evidence aliunde, that is, by evidence drawn from sources exterior to the instrument itself, e. g., the testimony of a wit ness to conversations, admissions, or prelimi nary negotiations.— Expert evidence. Testi mony given in relation to some scientific, tech nical, or professional matter by experts, •. e., persons qualified to speak authoritatively by reason of their special training, skill, or fa miliarity with the subject.— Extraneous evi dence. With reference to a contract, deed, will, or any writing, extraneous evidence is such as is not furnished by the document itself, but is derived from outside sources; the same as evidence aliunde. (See supra.) — Hearsay evidence. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. See, more fully, HEARSAY.— Incompe tent evidence. Evidence which is not admis sible under the established rules of evidence; evidence which the law does not permit to be presented at all, or in relation to the particular matter, on account of lack of originality or of some defect in the witness, the document, or the nature of the evidence itself. Texas Brew ing Co. v. Dickey (Tex. Civ. App.) 43 S. W. 578; Bell v. Bumstead, 60 Hun, 580, 14 N. Y. Supp. 697; Atkins v.'Elwell, 45 N. Y. 757; People v. Mullings, 83 Cal. 138, 23 Pac. 229, 17 Am. St. Rep. 223.— Inculpatory evidence. Criminative evidence; that which tends, or is intended, to establish the guilt of the accused. —Indispensable evidence. That without which a particular fact cannot be proved. Code Civ. Proc. Cal. 1903, § 1836; Ballinger's Ann. Codes & St. Or. 1901, § 689 —Legal evidence. A broad general term meaning all admissible evidence, including both oral and documentary, but with a further implication that it must be of such a character as tends reasonably and sub stantially to prove the point, not to raise a mere suspicion or conjecture. Lewis v. Clyde S. S. Co., 132 N. C. 904, 44 S. E. 666; Curtis v. Bradley, 65 Conn. 99, 31 Atl. 591, 28 L. R. A. 143, 48 Am. St. Rep. 177; West v. Hayes, 51 Conn. 533— Material evidence. Such as is relevant and goes to the substantial matters in dispute, or has a legitimate and effective in fluence or bearing on the decision of the case. Porter v. Valentine, 18 Misc. Rep. 213, 41 N. Y. Supp. 507.— Mathematical evidence. Demonstrative evidence; such as establishes its conclusions with absolute necessity and certainty. It is used in contradistinction to moral evidence.— Moral evidence. As oppos ed to "mathematical" or "demonstrative" evi dence, this term denotes that kind of evidence which, without developing an absolute and nec essary certainty, generates a high degree of probability or persuasive force. It is founded upon analogy or induction, experience of the ordinary course of nature or the sequence of