This Handbook on the Law of E v idence is designed to present to the Bench and the Bar in compact form the important rules and principles of e v idence as applied in both ci v il and criminal trials and proceedings, with a treatment in clear and succinct style of all the leading questions in v ol v ed in a considera- tion of the subje Ct.

The work is based on M r Chamberlayne's exhausti v e and comprehensi v e work, " The Modern Law of E v idence," which has been published in fi v e large v olumeS The editors ha v e attempted to include all topics and propositions co v ered by that great wor K M r Chamberlayne's text, like that of all comprehensi v e treatises of law subjects, contains much that is technical, historical and explanatory, with a great number of pertinent illustrations showing the application of the prin- ciples discusse DMuch of this material has been eliminated in preparing this handbook, to the end that the principles that control the disposition of a concrete question may be readily a v ailabl E It is ob v ious that the acti v e practitioner is required v ery frequently to refer quickly, without loss of time, to definite, clearly expressed rules of E v idence For this purpose he needs the rules themsel v es with citation of leading author- ities, but without elaborate discussion or extended illustrati v e matte r Multi- plication of cited precedents is not always essentiaL It is confidently expected that this handbook will pro v e of great v alue to the profession as a practical manual for constant use in trials of litigated cases and in the preparation for such trialS In carrying out the intention of basing this handbook upon Chamberlayne's elaborate work, references are made under each section to the corresponding sections of such wor K By referring to the sections of Chamberlayne's A v ork thus cited, a discussion and full treatment of all the principles laid down in the handbook will be foun DMany important cases which ha v e been decided by the courts since the pub- lication of Chamberlayne's Modern Law of E v idence ha v e been inserted in their proper places in this handbook, and much new matter co v ering questions which are now of present importance, but which were not of so much impor- tance when Chamberlayne's work was published, has been adde DThe editorial work was partially done by the late DeWitt c Moore of the New York Ba r Upon his death the work was re v ised and completed by Arthur W Blakemore, Esq , of the Boston Ba r 1 Definitions in GeneraL 1 Whate v er may be true of the ancient maxim, " Omnis definitio in jure periculosa est," in other connections, one who, like ]\I r Justice Stephen, is seeking to render the law of e v idence intelligible, cannot well refrain from incurring the danger of v iolating i T The constant necessity of adapting familiar technical terms to the apprehension of a popular, e v er-changing, tribunal like the jury, and the careless, inexact sufficiently accurate for immediate purposes action of the courts in their use of terms ha v e a constant tendency to break down any remnants of scientific precision in the use of terminology, and to de v elop numerous connotations for each term or phrase commonly employed in connection with the subje Ct That any treatise on e v idence should be understandable, tbis confusion must, so far as practicable, be eliminated by a careful definition of the terms about to be employe DIt has, howe v er, been deemed ad v isable not to attempt incumbering the subject with the additional complication of a new terminolog Y The only course, therefore, would seem to be the selection of one among se v eral con- notations of the multifold-meaning termS This has, where v er possible, been don E 2 Law of E v idence 2 The u rules of e v idence " are such precepts in the general subject of judicial administration as determine the manner in which a designated fact submitted to judicial decision may be pro v ed ; 3 whether such a fact may be pro v ed at all ; if so, who are competent to pro v e it and under what conditionS In the aggregate, these rules constitute the " law of E v idence" 3 Scope of the Law of E v idence 4 " The law of e v idence has to do with the furnishing to a court of matter of fact, for use in a judicial in v estigatio N (1) It prescribes the manner of presenting e v idence; as by requiring that it shall be gi v en in open court, by one who personally knows the thing, appearing in person, subject to cross-examination, or by allowing it to be gi v en by depo- sition, taken in such and such a way; and the like (2) It fixes the qualifica- tions and the pri v ilege of witnesses, and the mode of examining theM (3 ') And chiefly, it determines, as among probati v e matters, matters in their nature e v idential, ^hat classes of things shall not be recei v e DThis excluding function is the characteristic one in our law of E v idence'' 5 4 E v idence Define DIn its original sense, the term " e v idence " is that which causes the state of being e v ident or plai N As at present employed, the term '* e v idence," in general, co v ers all facts from which an inference may logically be drawn as to the existence of a fact under in v estigatio N For ju- dicial purposes, e v idence may be con v eniently di v ided, in the order in which a fact may present itself to obser v ation, into e:rfrn judicial and jucficinL " Ju- dicial e v idence is that which is produced to the court; it comprise? all e v idential facts that are actually brought to the personal knowledge and obser v ation of the tribunalS Extrajudicial e v idence is that which does not come directly under judicial cognizance but ne v ertheless constitutes an intermediate link between judicial e v idence and the fact requiring proo F" ~ 3 SUBDI v ISIONS OF E v idence 5-9 5 Extrajudicial E v idence ^ " Extrajudicial e v idence includes all e v idential facts which are known to the court only by way of inference from some form of judicial e v idenced 9 Extrajudicial e v idence is part of the order of nature as distinguished from the art of in v estigating reports of the natural occur- renceS It is the field of objecti v e rele v anc Y , 6 Judicial E v idence Judicial e v idence includes all testimony gi v en by witnesses in court, all documents produced to and read by the court, and all things personally examined by the court for the purposes of proo F lu Judicial e v idence is the domain of subjecti v e rele v ancy; 11 of the use of deliberati v e facts: la of the balancing in mental scales, of the weight the true probati v e force of the statements of witnesses or of the declarations of documentS 13 7 " Proof " and " E v idence" The terms " e v idence " and " proof " ha v e ben used as synonyms that is, as indicating the means by which mental cer- tainty on the part of a tribunal is create D14 But when properly employed, " proof ' ? sustains to " e v idence " the relation of an end to the means used in attaining i T Proof is the state of mind which it is the object of e v idence to produc E 1 " 1 The most pernicious effect of using the word " proof " as meaning either (1) the end of mental certitude, or (2) the means by which a party seeks to attain that end lies in connection with the phrase " burden of proof," where the two senses of the term proof are interchangeably employed in a be- wildering wa Y 16 8 "Testimony" and " E v idence" E v idence " and "testimony" ha v e been used frequently by the courts as con v eying the same meanin g More prop- erly, " testimony " is that part of judicial e v idence which comes to the tribunal through the medium of witnesses i e, by means of their v erbal statementS 17 9 Subdi v isions of E v idence No general system of classification has been adopted by those who ha v e sought to create classifications in the generic term " E v idence'' In most cases the classification is, as it were, modal, i e, the classes are differentiated according to the mode or method by which the e v idence operates in creating belief in the existence of a gi v en fact, e g direct and circumstantial e v idence; or probati v e, i e, as indicating the e v identiary force - belief-generating effect of the facts in question as related to the facts in v ol v ed in the inquiry as material e v idence, competent e v idence and the lik E 18 10 [Subdi v isions of E v idence] ; Admissible E v idence E v idence which the court recei v es in the course of a trial, or might properly recei v e, is admissible E v idence Admissible e v idence relates to proof of three classes or species of facts: (1) Constituent, or res gestae facts; (2) probati v e or e v identiary facts; (3) deliberati v e factS 19 11 [Subdi v isions of E v idence] ; Best and Secondary E v idence The im- portant subject of " best and secondary " e v idence indicates no absolute di v ision between facts of one class and facts of anothe r The classification, in any particular case, is conditioned upon a number of v ariables, e g, the e v idence which it is fairly within the power of a proponent to produce, the nature of the case or in v estigation, the stage of the trial, the state of the e v idence, and the lik E It, therefore, indicates a relati v e rather than an absolute line of de- markatio N Such di v ision of relation is ob v iously not a rule of law or e v en a rule of procedur E It is rather a guide to the discretion of the court in admit- ting testimony, i e, a canon of judicial administratio N 20 12 [Subdi v isions of E v idence] ; Competent E v idence Facts which, under these rules of procedure or the canons of administration, will be considered by a judicial tribunal, ha v e been designated as " competen T" 21 though the term has been used as equi v alent to sufficient to warrant action by the tribunaL 22 13 [Subdi v isions of E v idence] : Conclusi v e E v idence 23 Where the e v idence of a probati v e fact or set of facts amounts to a demonstration of the fart v m pro- bandum to which it is directed, where the e v idence is uncoritro v ertible, it is said tc be conclusi v E 24 This conclusi v e e v idence has been spoken of as " either a presumption of la W or else e v idence so strong as to o v erbear all other in the case to the contrar Y" 25 Such a statement would be appropriate, in reality, only of a mathematical demonstration, the ultimate basis of which is 21 1 Chamberlayne, E v idence 13: E v an 24 Wood v Chapin, 13 X Y 509 515, v Bristol 63 Conn 26, 36 27 Atl 360 67 Am Doc 62 per Denio C -T (1856) (18931: State v Johnson 12 Minn 476, 93 25 Haupt v Pohlnaan, 1 Rob ( N Y) 121, Am Dec 241 (1867) : Porter v v alentin E 18 127, per Robertson, J (1863 ) where the existence of the thing obser v ed as distinguished from the inferences to be drawn from it being a state of consciousness, cannot admit of doub T 26 14 [Subdi v isions of E v idence] ; Direct and Circumstantial E v idence 27 As commonly used, direct e v idence is the immediate perception of the tribunal or the statement of a witness as to the existence of a constituent fa Ct Circum- stantial e v idence is the statement of a witness as to the existence of a fact in some degree probati v e as to the existence of a constituent fa Ct The distinction is generally regarded as importan T Where a witness testifies to the existence of a res gestae fact his testimony is dire Ct Where, on the contrary, he testifies to a' probati v e fact, i e, to a fact which, either alone or in connection with other facts, renders probable the existence of a res gestae fact, the e v idence is circumstantiaL "E v idence is of two kinds: That which, if true, directly pro v es the fact in issue; and that which pro v es another fact from which the fact in issue may be inferr ed" 28 Tlie distinction seems confusing and mislead- ing rather than helpfuL It is an attempt to turn a difference in degree of im- mediateness in pro v ing a res gestae fact into a difference in kind or nature of e v idence itsel F 29 The - v alue of the distinction does not apparently compensate for the danger in v ol v ed in emphasizing it, and it might readily be abandoned without injury to any interests of judicial administratio N 30 26 1 Chamberlayne, E v idence, 14 The phrase, conclusi v e e v idence, may be used to etate a proposition as to which the law of e v idence has nothing whate v er to do, though couched in the appropriate phraseology of the subject; the equi v alence between two things prescribed by the substanti v e la W Thus, the rule of substanti v e law that pre- scripti v e user of a non-corporeal heredita- ment for a period of twenty years bars the right of action, may be announced by say- ing that proof of such a user is conclusi v e e v idence of a lost grant, or by the equi v a- lent expression that a lost grant is conclu- si v ely presumed from the fact of such use r See Wallace r Fletche r 30 X H 434 (1855 ) 28 Hart v New-land, 10 N C 122, 123 (1824); West r State, 76 Ala 98 (1884); Ter r r Faga N 3 Dak 119, 13 X W 568 (1882) -, Keed's Case, 1 Ce N L J (Me) 219 (1874): CoM v Webster, 5 Cush (Mass) 295, 310, 52 Am Dec 711 (1850): McCann r State, 13 Smedes & M ( Miss) 471 (1850): State r A v ery, 113 Mo 475 21 X W 193 '18021: Curran > Perci v aL 21 Xe B 434, 32 X W 213 1887 : State r Slingerlan D10 Ne v 135, 7 Pac 280 'IS v 'il: Pease v Smith 61 X Y 477 '1875): Bash v Bash, 9 Pa St 260 (1848); Lancaster v State, 91 Ten N 267, 18 S W777 (1891); U S v Cole, 5 McLean ( U S) 513, Fed Cas Xo 14,832 (1853): U S v Gilbert, 2 Sum N ( U S) 19, Fed Cas Xo 15,204 (1834) " Direct or positi v e e v idence is when a witness can be called to testify to the pre- cise fact which is the subject of the issue on triaL" CoM r Webster, supra, per Shaw, C JCircumstantial not cumulati v e as regads direct E v idence E v idence tending, circum- stantially, to establish a fact in issue is not cumulati v e as regards direct e v idence as to the same fa Ct v ardeman v Byrne, 7 Ho W (Miss) 865 (1843 ) 29 1 Chamb, E v , 15 A fact pro v ed by a legitimate inference is pro v ed no less fhan when it is directly sworn to Doyle v Boston, etc R Y Co, 145 Mass 386 (1888 ) 30 See discussion in 1 Chamb , E v , 15 This has been done by Stephe N See Dig Law of E v art 1 Circumstantial e v idence is not of second- ary importance to direct or positi v e e v i- dence All e v idence is largely circumstan- tial and e v en when most direct it depends upon circumstances for its credibility, weight and effe Ct Xo human testimony is superior to doubt e v en in cases of the most direct 15 [Subdi v isions of E v idence]; Material E v idence 31 Where a fact of- fered in e v idence is not merely rele v ant, in the logical sense, but presents the cogency of probati v e force required for affirmati v e action on the part of the tribunal, 32 it is ki material E v idence" 33 16 [Subdi v isions of E v idence]; Oral and Documentary E v idence; Docu- ment Define D34 By " document " is denoted the union of a material sub- stance and the written language carried by i T A document is a physical thing a piece of paper, parchment, any material substance, and this physi- cal, material thing is a v ehicle, instrument or means by which thought is pre- sented to the m Ind Both of these ideas are essential to the conception of the term " documen T" A blank sheet of paper would not be a documen T The oral testimony of a witness though it con v ey thought, is not a documen T The stenographic notes by which the testimony of the witness has been placed upon paper would probably constitute the paper containing them a documen T When these notes are transcribed into the ordinary written, typewritten or printed characters of language, the material substance carrying the thoughts so represented is clearly on E It is this combination of a material substance and its con v eyance of thought which constitutes the essential feature of a documen T In other words, the term " document " will be limited to writings in the present treatis E 35 No restriction exists as to the material substance which may thus con v ey though T 36 17 [Subdi v isions of E v idence] ; Difficulty of Remo v aL 37 Practical con- proo F It is always possible that witnesses facts into those which are the material, i e, may err unintentionally or may corruptly constituent, and those which are no T 1 falsify their testimony for reasons which are Chamb, E v , 16 33 1 Chamberlayne, E v idence 16: For- adopted, the whole definition of document ter v v alentine, IS Misc ( N Y ) 213, 41 at once becomes in v ol v ed in a fog as is N Y Supp 507 (1896) abundantly shown by the interesting specu- While " material " implies an additional lations of Bentham and M r Gulson's corn- logical persuasi v eness to that necessarily mentaries upon theM (See 1 Chamb, E v , carried by the term rele v ant, 'immaterial" 23, 27) The limitation to language is and " irrele v an T" as generally used, are also in the interest of symmetry and bar- practical !y synonymouS What facts are mony in the subject itsel F 1 Chamb, E v , material to any inquiry will be foud to be 17 determined by the nature of the right or 36 1 Chamberlayne, E v idence, 17; Row- liability asserted, i e, so far as this is ex- land v Burton, 2 Har r (DeL) 288 (1837), pressed in terms of fact, by the component wood: Kendall r Field, 14 Me 30 (1836), facts of the case The existence of these wood, component facts differentiates the res gestae 37 1 Chamberlayne, E v idence, 19 siderations of con v enience may, as a matter of administration, excuse the physi- cal production of a document where its size, weight or immobility are such as to render it difficult, if not impossible, to afford the court and jury actual personal inspection of i T In such cases, as is more fully stated elsewhere, 38 the court may take a v iew or permit the jury to take one if this seems the more satisfactory course; or, witnesses may be permitted to testify as to the con- tents, 39 or a copy, 40 by photographic or other means, may, upon proper identi- fication, be introduced in E v idence But this incon v enience of production in no way affects the fact that, whate v er may be the material substance, it is, so long as it con v eys thought, a documen T Up to this point, harmony exists among the authoritieS 18 [Subdi v isions of E v idence] ; Symbolical Representation of Though T For practical purposes the sole method by which thought may properly be said to be con v eyed with a reasonable approximation to clearness and accuracy from one mind to another, is by the use of languag E It would seem appropriate therefore that the use of written language should be the sole means of con v eying thought which, when joined with a material substance, -shall be deemed to con- stitute a documen T 41 19 [Subdi v isions of E v idence] ; Proper Scope of Documentary E v idence To sum up the results of examination into the proper scope of " documentary e v idence," 42 and state the conclusions reached, it may be taken (1) that as a species of e v idence, a classification into oral e v idence and documentary e v idence would be of little or no v alue (2) That as a medium of proof, documents ha v e a recognized and v aluable place, sharing with the oral testimony of witnesses and with perception the class of media of proof (3) That the oral testimony of witnesses is properly confined to the psychological facts, such as thought, and the like, which are con v eyed to the tribunal by means of oral testimony, i e, the v erbal statements of witnesses (4) That " documentary e v idence " is confined to such psychological facts, including thought and the like, as are con v eyed to the consciousness of the tribunal by the medium of written lan- guage carried by any material substance (5) That the third medium of proof, perception, 43 may properly be use Dto denote all physical facts, including the 38 See E v idence by Perception, post CK rying a number suggests tbe thought of a LX corresponding number which may ser v e to 39 Tracy Peerage Case, 10 CL & Fi N identify the proper claimant Yet neither 154, 180 (1843 ) But the difficulty of re- this, nor any similar suggestions apparently moral must affirmati v ely appear; otherwise suffice to make the check such a con v eyor of the e v idence will be rejecte DJones r Tarle- thought as to constitute it a document, ton, M & W 675, 677, per Parke, B " The tag referred to was not a document, (1842 ) but an object to be identifi ed" CoM v expression or manifestation of psychological facts, whether the immediate source of these facts is a person or thing, which the court percei v es by the use of its own senseS It may be added that in connection with the treatment of documents as a medium of proof, it has seemed appropriate to treat the re- quirements of substanti v e law or v arious branches of procedure especially af- fecting the use of documents and their distincti v e effect in e v idence, under this heading of documentary E v idence 44 20 [Subdi v isions of E v idence] ; Positi v e and Negati v e E v idence 45 The term " positi v e e v idence " has been used as synonymous with " dire Ct" 46 A more accurate use of the term " positi v e " is that by which it is employed as opposed to " negati v e " positi v e e v idence being denned as direct e v idence as to the existence of an alleged fact, negati v e e v idence being used to indicate the case where a tribunal is asked to infer the nonexisteuce of the fact in ques- tion from the circumstance that the witness did not percei v e i T 47 Certainly the distinction is of little if any practical importanc E 21 [Subdi v isions of E v idence] ; Real and Personal E v idence 48 The dis- tinction between real and personal e v idence has pro v ed one fertile in confusio N The fundamental difficulty does not lie in the main line of clea v age real e v i- dence, on the one hand, being the e v idence furnished by things Latin, res; personal on the other, being e v idence furnished by persons, as this distinction was originally formulated by Benth Am The distinction between real 'and personal e v idence is thus stated by Bentham : " Personal e v idence, that which is afforded by some human being by a being belonging to the class of per- sons; real e v idence, that which is afforded by a being belonging, not to the class of persons, but to the class of thingS" This distinction has been confused by M r Best by attempting to make the distinction depend on whether the e v idence is furnished by the testimony of a witness or by perception of the tribunal : and by making a distinction between e v idence which is v oluntary and that which is in v oluntar Y cei v es of an e v identiary nature furnished by a thing, a physical object, is real e v idence; that which it percei v es of an e v identiary nature furnished by a person, is personal E v idence In other words, that e v idence is personal which is furnished to the tribunal by persons, and real e v idence, that which is fur- nished to the tribunal by thingS If this mental concept of the v iewpoint of the tribunal be abandoned, the distinction has no v alue, and only confusion results from its us E Thus the physical aspect of persons who appear before the tribunal is personal and not real as it emanates from persons and so of e v i- dence of in v oluntary actS 22 Secondary Meanings of the Term " E v idence" 49 It seems appropriate that the subsidiary or secondary meaning of the term " e v idence,'' that is e v i- dence treated as a science, or regarded as an art should recei v e brief attention at this poin T This subordination must be understood as merely relati v e to the purposes of a particular treatis E Jurisprudence stands sorely in need of a science of E v idence Judicial administration, both in the work of trial and appellate courts would be greatly facilitated and expedited were the art of e v i- dence more clearly formulated and better understood by the v ast majority of practitionerS The rules and practical administration of e v idence the law of e v idence may fairly be defined as being that part of the doing of judicial justice which concerns itself with the ascertainment of truth.

That justice should be done in any case it is first essential that the truth of the matter be ascertaine DIt is as to this preliminary requisite to the just action of any tribunal with which the law of e v idence, whether regarded as a science or as an art, exclusi v ely concerns itsel F The object of the law of e v idence is, therefore, that of all scientific inquiry the establishment of truth by the use of the percepti v e and reasoning facultieS Substanti v e law is in the nature of things comparati v ely distinct but sub- stanti v e law has much direct influence on the law of e v idence introducing its considerations of public policy and the rights of the partieS Substanti v e law has further much concealed influence on e v idence and the instances in which this is done, are most frequently introduced by the phrase " e v idence is ad- missible to pro v e " or " e v idence is not admissible to pro v e " a gi v en fa Ct The peculiarity is that in many such cases, the e v identiary fact, the factum probans, is well calculated to pro v e the fact to the proof of which it is directed, i e, the factum probanduM The real cause for rejecting the former fact is that the latter fact is not pro v able under the rules of substanti v e law, or that the ultimate factum probandum the constituent fact at the end of the chain of probati v e facts would be excluded by these ruleS The real difficulty lies in a failure to distinguish accurately between the function of a probati v e fact and that of a constituent on E 23 " Fact " Define DScientifically speaking, a fact is that which exists either in the world of matter or in that of m Ind " We may define a fact as a reality of nature, existing or perceptible in the present or the past, and ha v - ing its seat either in matter or in m Ind'' 1 24 " Matter of Fa Ct"- - For judicial purposes, " fact " as a genus, is di v ided into three species (1) matter of law, (2) matter of opinion, and (3) matter of fa Ct N'o v ery clear differentiae indicate these se v eral specieS It may be said that whate v er falls within the genus " fact " which is not clearly " matter of law " or " matter of opinion " is properly classed as " mat- ter of fa Ct" - 25 Matter of La W The existence of a rule of foreign law is, by the great, weight of authorit Y 3 a question of fa Ct But it is otherwise as to rules of municipal or domestic la W Knowledge and enforcement of these laws is, so far as the judge is concerned, part of the judicial offic E It has seemed wise, party as conduci v e to the proper demarcation of the respecti v e pro v inces of the court and jury, 4 to segregate such matters of fact from facts of a different relation to the administration of justice under the general term " matter of la W" 5 26 Matter of Opinio N " Matter of opinion, not being disputed questions of fact, are general propositions or theorems relating to laws of nature or mind, principles and rules of human conduct, future probabilities, deductions from hypotheses and the like, about which a doubt may reasonably exi St All doubt- ful questions, whether of speculation or practice, are matter of opinio N With regard to these, the ultimate source of our belief is always a process of rea- soning.

" 6 27 Classification of Facts ; Physical or Psychological Classifying facts in general, according to whether they are within or without the body of the ob- ser v er, they may be di v ided into (1) physical, of which the knowledge of the obser v er comes through the perception of the senses; and (2) psychological, comprising feelings, emotions and other phases of the mind of which the latter is intuiti v ely awar E It may well be that the mind is aware only of changes in its states of consciousnesS 7 28 [Classification of Facts] ; Simple and Compound Facts of a compara- ti v ely simple nature may unite to form compound facts of a greater- degree of complexity, these in turn joining with others to form a fact still more in v ol v ed, and so on to an indefinite exten T An absolutely simple, uncompounded, in- di v isible fact apparently does not exist in nature as commonly presented to perceptio N E v en the simplest act to which a single name is attached in lan- guage as of a unit is in reality upon closer inspection found to be a series of collection of simpler actS 8 " In theory we can concei v e a fact absolutely simple ; for example, the existence of an atom in a state of rest, an instanta- neous perception of the mind, etc In practice, there is nothing of this kind ; a fact, though it may be spoken of as a single fact, is still in reality an aggre- gate of factS" \\"hile this is essentially true, it has been deemed practically expedient to treat as a simple fact any existing state of matter or mind which may be ascer- tained or v erified by a single act of perception or intuiti v e consciousnesS 9 29 [Classification of Facts] ; Component FactS In any in v estigation, judi- cial or other, in which the existence of a right is claimed or a liability asserted, the truth of certain special facts which, when united, make up or compose such right or liability, is necessarily in v ol v e DIt seems proper to designate these facts as componen T Proof of these facts is absolutely essential to proof of 6 1 Chambcrlayne, E v idence, 42 issue the circumstances attending his acts are Lewis, Authority on Matters of Opinion, c competent e v idence of it and also his own 1, 1 testimony as to his moti v e, purpose and intent 7 Physiological FactS Tt has seemed best, is also competent, Eckerd v We v e, 85 Ka N to classify physiological with physical facts, 752, 118 Pac 870, 38 L r A ( N S) 516 1 Chamberlayne, E v idence, 43 (1911 ) the proposition submitted to in v estigatio N They, or more properly, their ex- istence is essential to the truth of the proposition in issu E 10 30 [Classification of Facts] ; Component and Probati v E The relation be- tween a compound fact and its component facts is essentially different from that between an e v identiary an Da principal one, between a factiun probans and a factum probandum whate v er be the degree of approximation to the res gastae and through these and the component facts to the proposition in issu E First, a component fact is comprised in, and part of, its compound fa Ct The latter, at least in its present form, does not exist unless the component fact also existS If the compound fact exists, its component facts, of necessity, also exi St On the contrary, a probati v e or e v identiary fad (factum probans} is some- thing extrinsic to and entirely outside of the principal fact (factum proban- dum), it is externalized as part of objecti v e natur E The e v identiary or pro- bati v e fact may exist and the 'principal fact not exist ; or, on the contrary, the probati v e fact may not be true and the factum probandum still exi St 11 31 [Classification of Facts] ; Res Gestae and Constituen T The res fjestae of a judicial inquiry are that portion of the natural occurrences, a portion, as it were, of the world's aggregate of happenings or existences, out of which the right claimed or liability asserted comes into bein g Constituent facts are those among the res gestae facts which are material to the existence of this right or liabilit Y 12 32 [Classification of Facts] ; Compound, Component and Constituen T The relation of the component facts to the compound proposition of the facts in issue to the issue itself is a matter of la W The existence of these com- ponent facts is part of the definition, in point of law, of the main proposition, i e, of the issu E These component facts are the requirements of substanti v e law expressed in terms of fact, they establish the legal standard up to which the facts pro v ed in the case are to come in order to establish the truth of the main proposition asserte DThe constituent facts constitute the final or primary facts, to which, when established to their satisfaction, the court or jury, as the case may be, will apply the rule of law in v ol v ed in the main proposition the issu E In other words, component facts are part of the rule, furnished by the court, and ap- plied by it or by the jur Y The constituent facts are those to which the rule is applie D1 '" 33 [Classification of Facts] ; Positi v e and Negati v E 14 It has been said by high authority 15 that all facts may be classified as positi v e or negati v E This statement is true rather of propositions than of factS In the nature of things, all facts must be positi v E For, as Bentham more accurately says, 16 " the only really existing facts are positi v e factS A negati v e fact is the non- existence of a positi v e one, and nothing m Ore But it is otherwise of proposi- tions of fa Ct We may, and frequently do, predicate, both in judicial or other inquiries, the nonexistence of a fa Ct" A proposition, negati v e in form, may well be positi v e in substance ; a statement in form positi v e, may in reality be negati v E Indeed, the same proposition may be made positi v e or negati v e at will it being ob v ious that it is not material to the meaning whether the existence of a fact be affirmed or its nonexistence be denied ; or whether its nonexistence be affirmed or its existence be denie DThe proposi- tion, in either form, is positi v e in the first case and negati v e in the secon DIt is for this reason that one who testifies to a positi v e fact, e g, that he no- ticed a certain detail of an accident, is deemed, as a rule, more credible than he who affirms the negati v e fact thai it did not occu r The most that can be done in the way of proof of the negati v e fact or, if the expression be preferred, the- disproof of the correlati v e positi v e is the proof of some positi v e fact, the existence of which is inconsistent with the existence of the correlati v e positi v e fact, and then infer the nonexistence of the latter from the existence of the forme r In other words, while a negati v e fact presents peculiar difficulties in the way of direct proof, it may be established inferen- tially or, by the more customary phrase, circumstantiall Y 34 [Classification of Facts] ; Principal and Probati v E 17 According to the classification adopted by Bentham the distinction between a principal and an e v identiary fact is that between a factum probandum and a factum probanS The relation is not as to the proposition in issue but as to the two facts the fact to be pro v ed and the fact offered as pro v ing or assisting to pro v e i T In other words the principal fact is not a principal fact as related to the issue but as related to the e v identiary or probati v e fa Ct " In e v ery case, there- fore, of circumstantial e v idence, there are always at least two facts to be considered 1 The factum probandum, or say, the principal fact the fact-, the existence of which is supposed or proposed to be pro v ed the fact e v i- denced to, the fact which is the subject of proo F 2 The factum probans the e v identiary fact the fact from the e v idence of which that of the factum probandum is inferre DAn anomahj of code pleading 'may make such a statement inaccurat E As contrasted with common law pleading and statutory pleading which adopts common law pleading as its basis, code pleading, distincti v ely so called, states the constituent rather than the component factS This circumstance must be kept constantly in mind while dealing with the rulings of certain courtS 18 The ultimate facta probanda.

Are these constituent factS Here the line of proof the proper subject of e v idence ceaseS 19 Deliberati v e facts, in the original significance of the term, comprise that species of judicial e v idence which assists the tribunal in weighing the truth of a party's contention or the credibility of the witnesses or other proof by which it is establishe DDelib- erati v e facts enable the court or jury to exercise adequately and accurately the function of judgin g They explain, elucidate or qualify the probati v e or res gestce facts in such a way as to determine the e v identiary weight that shall be accorded theM They are placed, as it were, in the mental scales, together with the probati v e or res gestce facts to assist in striking the proper balanc E Such facts are probati v e ; but possess that slight degree of probati v e rele v ancy which may properly be spoken of as deliberati v E 35 [Classification of Facts]; States and E v entS 20 Bentham distinguishes, as a classification of facts, between e v ents and states of thingS 21 Best adopts the same distinction and assigns Bentham's reasons for making i T 22 " By an e v ent," says Best, " is meant some motion or change considered as ha v ing come about either in the course of nature or through the agency of the human will, in which latter case it is called an act or actio N The fall of a tree," he goes on, " is an e v ent, the existence of a tree is a state of things, but both are alike factS" The essential point of difference here indicated is that between mo- tion and re St Whate v er embodies motion is an e v ent ; that which is attended by a condition of rest is a state of thingS Such a distinction one may v en- ture to obser v e, with deference to these two eminent authorities who ha v e placed the students of the law of e v idence under such hea v y obligations, is, in reality, superficial and inaccurat E From the standpoint of the law of e v idence, howe v er, the distinction will continue to be of importanc E It need not be pointed out that only facts, howe v er numerous or complicated, which constitute to the obser v er, whether a witness or the tribunal itself, present existences or states of things, can be the subject of perception and, consequently, of personal knowledg E Com- pleted e v ents can be learned only by information deri v ed from others results of their past perception of what were to them, at that time, continuing states of thingS ence of the latter is logical rele v anc Y Objecti v e rele v ancy is a relation aris- ing in the world of matter, as distinguished from the realm of m Ind Subjec- ti v e rele v ancy deals with the realm of m Ind It is chiefly confined, in its operation, to judicial e v idence, 24 i e, to the oral statements, the testimony of witnesses, gi v en in court, or the written declarations of the author of a documen T Rele v ancy is a state of relatio N Unless and until conditioned, it may well be regarded as a link connecting any gi v en fact in point of time, with v arying degrees of remoteness, with all other facts, prior or subsequent, and in all directions of spac E The proponent may start his proof of a material res gestce fact as far back o v er the links of the chain of causation as the court, under all the circumstances of the case, shall deem not too remote to be helpful to him or the jur Y He may then pro v e the existence of the se v eral links in the chain until the ultimate factum probandum, the res gestce fact is reache DThis is the direct line of proof, the direct lineal rele v anc Y Any res gestce fact may be pro v ed in this wa Y Establishing the direct line of proof, in and of itself, makes other potentially direct rele v ancy indirect or collateraL It is as natural and ine v itable as that laying out and constructing a road should create sides for i T Other rele v ant relations persist but in a subordinate, col- lateral and incidental capacit Y As Frederick Pollock says : " Facts may be rele v ant to one another not only when they are links in the same chain, but when they are links in two chains ha v ing a common link in some other part of their length ; that is, when they are effects of the same cause or causes of the same effe Ct Rele v ancy is a question of logic, with which law, either in its substanti v e or adjecti v e form has nothing to d O The only test is that of experience ; and to follow it, presents in practice, little, if any, difficulty except the question of what degree of probati v e force may be deemed by a presiding judge helpful to himself and to the jur Y The probati v e relation of a delib- erati v e fact to the existence of one in the res gestce may well be spoken of as deliberati v e rele v anc Y It is a relation of logical rele v ancy where the con- nection between the e v identiary and principal fact is a slight on E All rele- v ancy is not, howe v er, that of logi C Two inquiries at once arise: ' (1) What is the nature of the rele v ancy exist- ing between the constituent and the component facts ? (2) What is the nature of the rele v ancy which exists between the component facts or expressions of fact and the right or liability asserted or denied ? In answering them, it will at once occur to the mind ; that an entirely distinct element has been added to the logical rele v ancy, based on experience, which has been hitherto dominant in establishing the res gestce from whi Chthe constituent facts ha v e been selected or inferred ; and that this new element furnishes the selecti v e prin- ciple in determining which of the res gestce facts are material to the component facts and so are constituent, of the right or liabilit Y It so becomes clear that this new element is the substanti v e or positi v e law of the subject which confers the right or imposes the liabilit Y Such a rule is entirely outside the logic of experience, is arbitrary, of legal rather than mental allegiance and relationS The establishment of the proposition in issue by the correspondences between the constituent and.