EVIDENCE IN PROSECUTIONS FOR CRIMES.

2703. Statutory crimes-Statutes af- 2717. Criminal intent-Direct evi

principles.

and appearances.

2712. Circumstantial evidence-Con

duct and relations of ac-
cused.

2713. Circumstantial evidence

Proof of every link beyond

reasonable doubt.

2727. Alibi.

2728. Insanity.

2729. Intoxication.

2730. Former jeopardy.

2731. Former jeopardy-Burden and evidence to sustain.

2732. Provinces of court and jury.

2714. Substance of the charge- 2733. Cautionary instructions.

Venue Variance.

§ 2702. Crimes Definition and general principles.-A crime has been defined, in substance, and in general terms, as an act committed

or omitted in violation of a public law either forbidding or commanding it, as the case may be.1 It is an offense or wrong, directly or indirectly affecting the public, for which the law has prescribed punishment and which is prosecuted by the sovereignty in its own name in a criminal proceeding.2 The term usually includes misdemeanors as well as treason and felonies, and an attempt to commit a crime may itself be a criminal misdemeanor, although the crime attempted is only a misdemeanor. Generally speaking, it may be said that the rules of evidence, or at least the tests for its admission, are the same in criminal as in civil cases,3 and, for this reason, many of the rules that have been treated in the first and second volumes of this work are applicable to the subject of this volume and need not be repeated. But there is a fundamental difference in regard to the burden of proof or weight of evidence, as to criminal capacity and liability for an act in certain cases and as to various other matters. So, too, it is evident that what is relevant in the one case may not always be relevant in the other, and the rules are not altogether the same in regard to evidence of character and the like. So, there are certain defenses and certain constitutional safeguards and other privileges usually adopted for the protection of one accused of crime or to secure him a fair trial. These and similar matters will be treated in this chapter, with a general survey of the subject. Some matters, however, that relate particularly, or even exclusively, to criminal proceedings, such as confessions, dying declarations, and the like, have been already treated and will be considered in this volume only in connection with specific crimes.

14 Blackstone Comm. 15; Butt v. Conant, 1 B. & B. 548; Greely v. Hamman, 12 Colo. 95; Slattery v. People, 76 Ill. 220; State v. Peterson, 41 Vt. 511; United States v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764.

2 Mann v. Owen, 9 B. & C. 595, 17 E. C. L. 456; People v. Williams, 24 Mich. 163; 1 Bishop Cr. Law, § 32; "Crimes," says Edmund Burke, in the report of the committee appointed to inspect the Lords' Journals, "are the actions of physical beings, with an evil intention abusing their physical powers against justice, and to the detriment of society." 6

Burke Works (Bohn's Edition), 489.

Roscoe begins his work on "Criminal Evidence" with the statement that, "the general rules of evidence are the same in criminal and in civil proceedings," and quotes from Watson's Case, 2 Starkie N. P. 155, and Murphy's Case, 8 Car. & P. 306, to the same effect; see also, Lord Melville's Trial, 29 How. St. Tr. 746; Summons v. State, 5 Ohio St. 325, 352; Crawford v. State, 112 Ala. 1, 21 So. 214; West v. State, 22 N. J. L. 212.