To prove the guilty knowledge of a pri soner with regard to the transaction in ques tion, evidence of other offences of the same kind committed by the prisoner, though not charged in the indictment, is admissible against him : as, in the case where a prisoner had passed a counterfeit dollar, evidence that he had other counterfeit dollars in his pos session is evidence to prove the guilty know ledge. 2 Const. So. C. 758, 776; 1 Bail. So. C. 300; 2 Leigh, Va. 745 ; 1 Wheel. Cr. Cas. N. Y. 415; 3 Rog. 148; Russ. & R. Cr. Cas. I32; 1 Campb. 324 ; 5 Rand. Va. 701.
14. The substance of the issue joined between the parties must be proved. 1 Phillipps, Ev. 190. Under this rule will be considered the quantity of evidence required to support par ticular averments in the declaration or indict ment.
And, first, of civil cases. 1. It is a fatal variance in a contract if appear that a party who ought to have been joined as plain tiff has been omitted. I Saund. 291 h, n.; 2 Term, 282. But it is no variance to omit person who might have been joined as de fendant ; because the non-joinder ought to have been pleaded in abatement. 1 Saund. 291 d, n. 2. The consideration of the con tract must be proved ; but it is not necessary for the plaintiff to set out in his declaration, or prove on the trial, the several parts of a contract consisting of distinct and collateral provisions : it is sufficient to state so much of the contract as contains the entire consi deration of the act, and the entire act to be done in virtue of such consideration, in cluding the time, manner, and other circum stances of it performance. 6 East, 568; 4 Barnew. & Ald. 387.
15. Secondly. In criminal cases, it may be laid down that it is, in general, suffi cient to prove what constitutes an offence. It is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. 2 Campb, 585 ; 1 Harr. & J. Md. 427. If a man be indicted for robbery, he may be found guilty of larceny and not guilty of the robbery. 2 Hale, Pl. Cr. 302. The offence of which the party is convicted must, however, be of the same class with that of which he is charged. I Leach, 14; 2 Strange, 1133.
When the intent of the prisoner furnishes one of the ingredients in the offence, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offence, it is sufficient to prove one intent only. 3 Stark. 35.
16. 3. When a person or thing necessary to be mentioned in an indictment is described with circumstances of greater particularity than is requisite, yetthose circumstances must be proved. 3 Rag. 77 ; 3 Day, Conn. 283. For example, if a party be charged with steal ing a black horse, the evidence must corre spond with the averment, although it was un necessary to make it. Roscoe, Crim. Ev. 77; 4 Ohio, 350.
4. The name of the prosecutor or party in jured must be proved as laid ; and the rule is the same with reference to the name of a third person introduced into the indictment, as descriptive of some person or thing.
5. The affirmative of the issue must be proved. The general rule with regard to the burden of proving the issue requires that the party who asserts the affirmative should prove it. But this rule ceases to operate the moment the presumption of law is thrown into the other scale. When the issue is on the legitimacy of a child, therefore, it is incum bent on the party asserting the illegitimacy to prove it. 2 Selwyn, Nisi P. 709. See ONUS PROBANDI ; PRESUMPTION ; 2 Gall. C. C. 485 ; 1 M'Cord, So. C. 573.
11. Modes of proof. Records are to be proved by an exemplification, duly authenti cated (see AUTHENTICATION), in all cases where the issue is nul tiel record. In other cases, an examined copy, duly proved, will, in general; be evidence. Foreign laws are proved in the mode pointed out under the article FOREIGN LAWS.
Private writings are proved by producing the attesting witness; in case of his death, absence, or other legal inability to testify, as if after attesting the paper he becomes infamous, his handwriting may be proved. When there is no witness to the instrument, it may be proved by the evi dence of the handwriting of the party, by a person who has seen him write or in a course of correspondence has become acquainted with his hand. See COMPARISON OF HAND WRITING ; 5 Binn. Penn. 349 ; 6 Serg. & R. Penn. 12, 312; 10 id. 110 ; 11 id. 333, 347 ; 3 Wash. C. C. R. 31 ; 1 Rawle, Penn. 223 ; 3 Id. 312; 1 Ashm. Penn. 8; 3 Penn. 136.