A witness may decline to answer any question the answer to which will have a tendency to expose the witness to penal liability, to any kind of punishment, to a criminal charge, or to a forfeiture of property. This is a personal privilege of the witness. Whether the answer may tend so to expose the witness is a point on which the court is bound to instruct the witness, and which the court will determine under all the circumstances of the case, but without requiring the witness fully to explain how he might be criminated by the answer. Where the transaction to which the witness is interrogated forms any part of the issue to be tried, the witness will be required to give evidence however strongly it may reflect on his character. But when the question is not material to the issue, the witness will not be required to answer the question if such answer has a direct tendency to degrade the character of the witness. Record evidence may be introduced to show a previous conviction of a witness of a crime subjecting him to an ignominious punishment.S In California, by statute, a witness must answer as to the fact of his previous conviction for a felony." The evidence on the trial of an action must correspond with the allegations and be confined to the points in issue, and all questions as to collateral facts except on except on cross-examination should be strictly excluded.10 The common law rule which renders incompetent as witnesses, parties to the action, persons interested in the result of the action, the judge before whom the action is tried, atheists and infidels, and persons infamous because convicted of heinous crimes, does not exist in California, nor does it exist in some of the states which have adopted the code system of civil remedies. In California the judge himself or any juror may be called as a witness by either party; but in such case it is in the discretion of the court or judge to order the trial suspended or postponed, and that it take place before another judge or jury. 8. 1 Greenleaf Ev., Sec. 451 et seq. 9. CHAPTER XXVII. OF SOME RULES OF EVIDENCE DECLARED BY THE SUPREME COURT AND BY STATUTE IN CALIFORNIA. ! Press copies of writings, if they exist, are next after the originals, the best evidence of the contents of such originals.1 A written receipt is open to explanation by parol evidence.2 Secondary evidence of the contents of an original writing is admissible, unless objected to on the trial of an action.3 A delivery of a patent of the United States for land is not necessary to pass the legal title to the land, if the patent has been duly signed and recorded.4 A letter beyond the territory of the state is within the meaning of the statute "lost," so as to allow secondary evidence of its contents.5 The record in the office of a county recorder of a power of attorney acknowledged only by one of the three persons, who, it is claimed, executed the power, is evidence, under sections 1855 of the Code of Civil Procedure of the contents of the original.® It was held in Brown v. Griffeth, 70th Califorina reports 14, that under section 1951 of the Code of Civil Procedure, as it then was, the contents of an original private writing could not be proven, by the record thereof, unless the absence of such original was first satisfactorily accounted for, but since the amendment of section 1951 of that code in 1889, such evidence is admissible, without such preliminary evidence.7 A copy of a certified copy of an original writing, which orig 1. Ford v. Cunningham, 87 Cal. 209. 2. Comptoir D'Escompte de Paris v. Dresbach, 78 Cal. 15. 3. Wright v. Rosberry, 81 Cal. 87. 4. Cruz v. Martinez, 53 Cal. 239. 5. Zellerbach v. Allenberg, 99 Cal. 58. 6. Spect v. Gregg, 51 Cal. 198. 7. Code of Civil Procedure, as amended in 1889. inal writing is lost, is not evidence of the contents of such original.8 A written statement of facts made by an agent within the scope of his authority is admissible as evidence against his principal.9 An original answer in an action which has been superseded by an amended answer is not admissible;10 but in Coward v. Clanton, 79 Cal. 23, such answer was held to be admissible in evidence as an admission made by the defendant. The evidence of an original complaint which has been superseded by an amended complaint is not admissible except to impeach the plaintiff, if a witness in the action.11 Under the rule in Coward v. Clanton, the superseded complaint might, perhaps, in some cases, be introduced in evidence as an admission. When a deed is executed and there is a question as to its delivery, what the grantor has said against such delivery, is not admissible, but what he said in favor of such delivery in another conversation is admissible.12 The statement by a testator, in his will, duly admitted to probate, that a person named in such will, was his wife is competent evidence of that fact, and his statement in the same will, that certain other persons named therein were his children, was competent evidence that they were his legitimate children.18 In the absence of ambiguity in a contract, it cannot be changed by parol testimony, except in an action in equity to reform the written contract.14 Parol evidence is admissible, when it relates to the execution, authenticity or delivery, of a written instrument.15 A postscript to a genuine letter may be shown to have been added after the letter was written, and without authority to do 80.16 8. Dyer v. Hudson, 65 Cal. 372. 9. Kamm v. Bank of California, 74 Cal. 191. 10. Osment v. McElrath, 68 Cal. 466; Stern v. Lowenthal, 77 Cal. 340. 11. Johnson v. Powers, 65 Cal. 179. 14. Harrison v. McCormick, 89 Cal. 327; Irving v. Cunningham, 66 Cal. 15; Swain v. Grangers' Union. 69 Cal. 186. 15. Verzan v. McGregor, 23 Cal. 339 Parol evidence to show the true consideration of a written contract is admissible:17 but if the consideration for a note was something to be done, and this is expressed in the written instrument, it is not competent to show that something else was to be done;18 and when a part of a contract be illegal, and the contract is indivisible, the contract cannot be enforced. 19 Parol evidence is always admissible to show the circumstances under which a written contract was made, including the situation of the subject of the instrument, and of the parties to it, to enable the court to arrive at its meaning.20 Evidence is admissible of a parol contemporaneous agreement fixing the time of the performance of a written contract, when such time is not fixed by the terms of the written contract.21 It is competent for the legislature at any time to adopt rules of evidence.22 If irrelevant evidence is received subject to a motion to strike out, if no such motion be made, the adverse party is presumed to have acquiesced in its admission.23 The transcript from the shorthand reporter's notes, certified to, as prescribed by statute, is not evidence of what a witness on the former trial of an action, said as such witness.24 The whole of the admission on the same subject must be admitted.25 An offer to prove, must specify the particular fact offered to be proved.26 An objection to evidence should state the particular grounds of the objection.27 The power of a jury of judging of the effect of evidence is not arbitrary, but this power is to be exercised with legal disretion and in subordination to the rules of evidence. 17. Hendrick v. Cowley, 31 Cal. 471; Moffat v. Bulson, 96 Cal. 106. 19. Moffat v. Bulson, 96 Cal. 106. McDonald v. Conniff, 99 Cal. 387. A jury is not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in their minds, against a less number or against a presumption or other evidence, satisfying their minds. A witness false in one part of his testimony is to be distrusted in others. The testimony of an accomplice ought to be viewed with distrust and the evidence of oral admissions of a party, with caution. In civil cases, the affirmative of the issue must be proved. If weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.28 Each party must prove his own affirmative allegation.29 A patent for land issued by the United States may be proven by producing from the recorder's office, the book within which it was recorded without proof of the loss of the original.30 Courts will take judicial notice of the time of harvest in the counties where they preside,31 of the laws in force in California at the time of its conquest, 32 as to the persons who hold the various county offices within their jurisdiction and of the genuineness of their signatures,33 of the offices of a county and of the genuineness of their official signatures, and of the genuineness of the signatures of such deputies as the law authorizes them to appoint,34 of the signatures of the officers of the court, but not of the signatures of the party to the cause,35 of the decisions of the court,36 of the proceedings in an action before it upon a proceeding therein for contempt,37 of the United States census returns, 38 of county boundaries and of the location of lands described by government, by township, range and sections and 28. Code of Civil Procedure, Sec. 2061. 29. Code of Civil Procedure, Sec. 1869. 38. People v. Williams, 64 Cal, 87. |
