Evidence

That which tends to prove or disprove any matter in question, or to influence the belief respecting it. Belief is produced by the consideration of something presented to the mind. The matter thus presented, in whatever shape it may come, and through whatever material organ it is derived is evidence. Prof. Parker, Lectures on Medical Jurisprudence, in Dartmouth College, N. H..,.,, The word "evidence," m l^al acceptation, includes all the means by which any alleged matter of fact, the truth of which That which is legally submitted to a jury, to enable them to decide upon the questions in dispute, or issues, as pointed out by the pleadings, and distinguished from all comment and argument, is termed "evidence."

1 Starkie, Ev. pt.

1, § 3. "Any matter of fact the effect, tendency, or design of which is to produce in the mind a persuasion affirmative or disaffirmative of the existence of some other matter of fact." Best, Ev. § 11. "Evidence" is to be distinguished from "proof." Evidence is not proof, but the medium of proof. Proof is the effect or result of evidence.

1 Greenl.

Ev. § 1. "Proof is the perfection of evidence. Without evidence there can be no proof, though there may be evidence which does not amount to proof."

Wills, Circ. Ev. 2.

It is also to be distinguished from "testimony," which excludes documentary evidence. Testimony embraces only the declaration of witnesses made under oath. "Testimony is but one of the several instruments of evidence, and cannot be considered the equivalent thereof, for evidence embraces not only testimony, but private writings and public documents."

Thomp. Trials, § 2784; 3 Wyo. 388; 7 Ind. 94; 76 Hun (N. Y.) 427.

Evidence may be classified with reference to its instruments, its nature, its legal character, its effect, its object. (1) The instruments, of evidence, in the legal acceptation of the term, are: (a) Judicial notice or recognition, being notice taken by the court, without the introduction of proof by the parties of matters, such as the territorial extent of their jurisdiction, local divisions of their own countries, seats of courts, etc. If the judge needs information on subjects, he will seek it from such sources as he deems authentic.

See 1 Greenl.

Ev. c. 2. (b) Documentary evidence, including public records. The registers of official transactions made by officers appointed for the purpose; as, the public statutes, the judgments and proceedings of courts, etc. Judicial writings, such as inquisitions, depositions, etc. Public documents having a semi-official character, as, the statute books published under the authority of the government, documents printed by the authority of congress, etc. Private writings, as, deeds, contracts, wills. (c) Parol evidence, being the testimony of witnesses. (d) Real evidence, being that which is addressed to the senses of the court without the intervention of testimony, as by the production in court of an object. (2) In its nature, evidence is direct or indirect. (a) Direct evidence is that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact. does not arise from any presumption. Evidence is direct and positive when the very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses.

1 Phil. Ev. 116; 1 Starkie, Ev. 19; Burrill, Circ. Ev. 4; 1 Greenl.

Ev. § 13. (b) Indirect (evidence is that which is applied to the principal fact indirectly by the proof of circumstances from which the principal fact is inferred. Indirect evidence is commonly known as "circumstantial evidence." See "Circumstantial Evidence." Evidence has also been divided into real or demonstrative evidence, and moral evidence, the latter including all evidence which is not demonstrative. Brad. Ev. § 15; Gamb. Moral Ev. 121. (3) With regard to its legal character, evidence is either primary or secondary. (a) Primary, sometimes called "best," evidence is that which most certainly exhibits the true state of facts to which it relates. The rule is one of quality of evidence, not of quantity (17 Md. 67), and is not based on mere credibility, but on the degree of proximity of the proof to the principal fact to be proved. See "Best Evidence." (b) Secondary evidence is any evidence suggesting in its nature that there is more direct evidence of the same fact. Hearsay evidence is a tjrpe of secondary evidence. See "Hearsay Evidence." (4) As to its effect, evidence is either prima facie or conclusive. (a) Prima facie evidence is that evidence which is sufficient proof respecting the matter in question until it is contradicted, but which may be contradicted or controlled. Satisfactory evidence is that which produces the degree of certainty required in the case in hand. 1 Greenl. Ev. § 6; 70 Mo. 248. ■ (b) Conclusive evidence is that which establishes the fact, and is not subject to contradiction. (5) As to its object, evidence is either substantive evidence, or evidence to credibility. (a) Substantive evidence is that addressed directly to the point in controversy. (b) Evidence to credibility is that which neither proves nor disproves the principal fact, but merely impeaches or sustains witnesses by whom the principal fact has been proved or disproved. Among the kinds of substantive evidence are "cumulative evidence," which is further evidence of the same kind to the same point, and "corroborative evidence," which is further evidence of a different kind to the same point. Underh. Ev. § 2.