Where the crime charged is part of a plan or system of criminal action, evidence of other crimes near to it in time, and of simi lar character, is relevant and admissible to show the knowledge and intent of the ac cused, and that the act charged was not the result of accident or inadvertence ; Griggs v. U. S., 158 Fed. 572, 85 C. C. A. 596; or where the other and independent criminal acts of themselves form the motive for com mitting the crime alleged in the case on trial ; Thompson v. U. S., 144 Fed. 14, 75 C. C. A. 172, 7 Ann. Cas. 62 ; or is an incident to, or part of, or leads up to the latter; Peo ple v. McLaughlin, 150 N. Y. 365, 44 N. E. 1017; but as such evidence, if wrongfully admitted, would greatly prejudice the pris oner, its relevancy should be carefully scrutinized; Com. v. Shepard, 1 Allen (Mass.) 575, 581; hence its admission upon an issue as to which it is not relevant will be prejudicial and therefore reversible er ror ; People v. Collins, 144 Mich. 121, 107 N. W. 1114.
The substance of the issue joined between the parties must be proved; 1 Phill. Ev. 190; Tayl. Ev. 233. Under this rule will be con sidered the quantity of evidence required to support particular averments in the declara tion or indictment.
And,, first, of civil cases. 1. It is a fatal variance in a contract if it appear that a party who ought to have been joined as plaintiff has been omitted ; 1 Saund. 291 n.; 2 Term 282 ; and so where a bill for specific performance alleges the execution of a contract a certain year, and the proof shows that it was made in another ; John ston v. Jones, 85 Ala. 286, 4 South. 748. But it is no variance to omit a person who might have been joined as defendant ; because the non-joinder ought to have been pleaded in abatement ; 1 Saund. 291 d, n. 2. The con sideration of the contract 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 suffi cient to state so much of the contract as con tains the entire consideration of the act, and the entire act to be done in virtue of such consideration, including the time, manlier, and other circumstances of its performance ; 6 East 568 ; 4 B. & Ald. 387.
Second. In criminal cases, it may be laid down that it is, in general, sufficient to prove what constitutes the offence. 1. It is enough to prove so much of the indictment as shows that the defendant has committed a sub st-antive crime therein specified; 2 Campb. 585 ; U. S.; v. Vickery, 1 H. & (Md.) 427, Fed. Cas. No. 16,619. See Daniels v. State, 78 Ga. 98, 6 Am. St. Rep. 238 ; People v. Wake ly, 62 Mich. 297, 28 N. W. 871. 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 ; 1 Leach 14; 2 Stra. 1133.
2. When the intent of the , prisoner fur nishes one of the ingredients in the offence, and several intents are laid in the indict each of which, together with the act 'done, constitutes an offence, it is sufficient 'to prove one intent only ; 3 Stark. 35.
Whe• a person or thing necessary to be mentioned- in an indictment is described With circumstances of greater particularity ithan is • requiSite; yet those ' circumstances must be proved ; U. S: v. Porter, 3 Day (Conn.) '283, Fed.. CaS. NO. 16,074; Clark v.
State, 26- Tex. App. 486, 9 S. W. 767. For if a party be charged with stealing 'a black 'horse, the evidence must correspond With the averment; although it was unneces sary to make it ; Hooker v. State, 4 Ohio 350 ; rBerrien V. State, 83 Ga. 381, 9 S. E. 606 ; but People v.'Monteith, 73 Cal. 7, 14 Pac. 373, Where an indictment charging a murder with a "bludgeon" is supported by, proof that death was produced by a MOW with a bolt or clUb ; Long v. State, 23 Neb. 33, 36 N. W. 310. See State v. Weddington, 103 N. C. 364, 9 S. E. 577; Douglass v. State, 26 Tex. App. 109, 9 S. W. 489, 8 Am. St. Rep. 459.
4. The name of ' the prOsecutor or party injured 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. See Robinson y. Com., 88 Ky. 386, 11 S. W. 210, 10 Ky. L. 'Rep. 972; State v. Quinlan, 40 Minn. 55, 41 N. W. 299.
The affirmatite Of the issue must be proved. The general rule with regard to the burden ,if proving the issue requires that the party Who asserts the affirmative should :prove it. but this' rule ceases to operate the moment the preaumpticin of law is thrown into the Other scale. When the issue is, on the legiti iiiacy child, therefore, it is incumbent on the party asserting the illegitimacy to prove it; Selw. N. P. 709. where an answer affinits all the averments of the complaint, .ftia Ats up a counter-claim as a defence, the affikmative 'of all the issues raised by the jileadings is on the defendant ; Hamilton Cohl CO. 'v. Bernhard, di' Hun 624, 16 N. Y. SUPii: ' See. Onus i'nonANni; PREsuktp-, fv; V. S. v. Hayward, Fed. Cas.
1.6:386 ;'State v. Geuing, 1 McCord (S. C.) L. ReV. (N. S.) 126; Delachaise v. 44 La. Ann.-1043, 11 South. 715. cttes of proof. Records are to be prOved by an exemplification, duly authenticated according to law, in all cases where the is sue is vial tiel record. In other cases, an ex amined copy, duly proved, will, in general, be evidence ; Leathers v. Wrecking, etc., Co., 2 Woods 680, Fed. Cas. No. 8,164. Foreign laws are proved in the mode pointed out un der the. article FOREIGN LAW. See supra.
Incompetent and irrelevant evidence can not be rendered competent and relevant by being contained in an official document ; U. S. v. Corwin, 129 U. S. 381, 9 Sup. Ct. 318, 32 L. Ed. 710.
Private writings are proved by producing the attesting witness ; or in case of his death, absence, or other legal inability to testify, as if after attesting the paper he becomes in famous, his handwriting may be proved. When there is no witness to the instrument, it may be proved by the evidence of the hand writing of the party, by a person who has seen him write, or who in a course of cor respondence or business relations has ;became acquainted with his hand. See Munns v. De Nemours, 3 Wash. C. C. 31, Fed. Cas. No. 9,926; Arnold v. Gorr, 1 RaWle (Pa.) 223; 4 Am. L. Rev. 625 ; Berg v. Peterson, 49 Minn. 420, 52 N. W. 37. As to the question whether the genuineness of a signature may be proved' or disproved by comparison, or the signature to documents not a part of the case be proven for the purpose of using them as Standards of comparison with the signature to the instrument sued on, see HANDWRITING.
Books of original entry, when duly proved, are prima facie evidence of goods sold and delivered, and of work and labor done. See