Best Evidence

The best evidence ol which the nature of the case admits, not the highest or strongest evidence which the nature of the thing to be proved admits of; e. g., a copy of a deed is not the best evidence; the deed itself is better. Gilb. Ev. IB; Starkie, Ev. 437; 2 Campb. 605; 3 Campb. 236; 1 Esp. 127; 1 Pet. (U. S.) 591; 6 Pet. (U. S.) 352; 7 Pet. (U. S.) 100. The term is confined to cases where the law has divided evidence into primary and secondary. 33 Mich..53. The rule requiring the best evidence does not exclude a witness on the ground that another is more credible, but merely excludes such evidence as is substitutionary in its character, if the original evidence can be had. 65 Me. 467.

The best evidence of which the nature of the case admits, n highest or strongest evidence which the nature of the thing to he proved admits of: e. g. a copy of a deed is not the best evidence: the deed itself is better. 1 Greenl. Ev., Lewis's ed. g 82; State v. m: 65 Me. 467: Tayloe v. Riggs, 1 Pet. (1 591, 7 L. Ed. 275; Whitehead v. School Disk, 145 Pa. 418. -1-1 Atl. 991; 15 Q. B. The rule requiring the best evid ace to be produced is to be understood of the best legal evidence; Gray v. Pentland, 2 S. & EL (Pa.) 34; 3 Bla. Com. 3GS, n. 10, by Christian. It is relaxed in some cases, as where the words or the act of the opposite party avow the fact to be proved. A tavern-keeper's sign avows his occupation; taking of tithes avows the clerical character; Cummim v. Smith, 2 S. & R. (Pa.) 440; 1 Saund. PI. 49. Letterpress copies of letters are the secondary evidence of their contents; Ford v. Cunningham, 87 Cal. 209, 25 Pac. 403. Where a note and the deed of trust given to secure it differ in describing the payee of the note, the note will prevail as evidence over the deed of trust; Magee v. Burch, 10S Mo. 336, IS S. W. 1078. Prof. Thayer (Evid. 484) treats the subject and expresses the opinion that this phraseology tends to confusion; though admitting that in the earlier days it may have been useful and may become so again as the discretion of the courts is enlarged. He prefers "primary" and "secondary." Id. 505.

Primary evidence, as distinguished from secondary; original, a3 distinguished from substitutionary; the best and highest evidence of which the nature of the case is susceptible. A written tnstrument is itself always regarded as the primary or best possible evidence of its existence and contents; a copy, or the recollection of a witness, would be secondary evi-; jence. of nature by man or woman in any manner with a beast. Code Ga, 1882, § 4354. Wo take it that there is a differeuce in signification between the terms “bestiality,” and the “crime against nature.” Bestiality is a connec tion between a human being and a brute of the op posite sex. Sodomy isa connection between two human beings of the same sex,—the male,—named from the prevalence of the sinin Sodom. Both may be embraced by the term “crime againat nat ure,” as felony embraces murder, larceny, etc., though we think that term is more generally used in reference to sodomy. Buggery seems to inelude both sodomy and bestiality. 10 Ind. 356.