the jury fails to do so.56 In the absence of such statutory requirement, however, a general verdict of guilty is a conviction of the highest degree of crime charged in the indictment.57 Where the punishment is fixed by the law or the court, and the jury do so in the verdict it may be rejected as surplusage.58 But if the law requires the jury to fix the punishment, and the verdict fails to do so, it is bad unless duly corrected.59 In some jurisdictions the jury may, in the verdict, recommend mercy.60 Such a recommendation, if improper, may be rejected as surplusage. Where the verdict fixes the punishment beyond the extreme limits of the law it is bad.62 The court may amend the verdict as to matters of form,63 but not as to matters of substance without the jury's consent and direction. In certain states, perhaps in all, in cases of misdemeanor, if the court has adjourned when the jurors determined on their verdict, they may reduce it to writing, seal it up, separate, and bring it into court when it opens. 64 § 982. Evidence-Generally.-The rules of evidence are mainly rules which exclude certain classes of testimony. The general rules of evidence, applicable in civil cases, are applicable in criminal cases. Generally speaking, testimony is admissible to prove the facts in issue and also to prove facts not in issue but which are relevant to facts in issue,65 pro 56 State v. Jackson, 99 Mo. 60, 12 S. W. 367. 57 State v. Weese, 53 Iowa 92, 4 N. W. 827. 58 Harvey v. Commonwealth, 23 Grat. (Va.) 941. 59 Padfield v. People, 146 Ill. 660, 35 N. E. 469; Commonwealth v. Scott, 5 Grat. (Va.) 697. 60 Valentine v. State, 77 Ga. 470. 61 Opinion of Justices, 120 Mass. 600. 62 Allen V. Commonwealth, 2 Leigh (Va.) 727. 63 Commonwealth v. Lang, 10 Gray (Mass.) 11; 2 Hawk. P. C. ch. 47, § 9. 64 Nolan v. State, 53 Ga. 137; Stewart v. People, 23 Mich. 63, 9 Am. Rep. 78. 65 Commonwealth v. Abbott, 130 Mass. 472; Commonwealth v. Jeffries, 7 Allen (Mass.) 548, 83 Am. Dec. 712; Stephen Dig. Evid. (Chase's Ed.) 4; Wharton Cr. Ev. §§ 21, 23, 24. 67 vided they are not too remote to be material or are not excluded by some arbitrary rule of law. Facts may be proved in evidence which are necessary to introduce or tend to explain other facts which are relevant.66 Facts which tend to show a motive for the commission of the crime charged, or evidence tending to show that the defendant made preparations to commit the act charged, are relevant and may be proved.68 Subsequent conduct of the accused, apparently a consequence of the crime charged, not self-serving, may be shown." 69 Acts and declarations which are a part of the same transaction are said to be a part of the res gestae and are admissible in evidence.70 Statements adverse to the accused made in his presence and not denied by him, such as accusations of crime to which he remains silent, may be offered in evidence.71 Hearsay testimony, that is, testimony of a witness who does not tell what he knows personally but merely relates what he has heard from others, is admissible only in a few exceptional 66 Hackett v. King, 8 Allen (Mass.) 144, 85 Am. Dec. 695; Commonwealth v. Brady, 7 Gray (Mass.) 320; In re Gordon's Case, 21 How. St. Tr. 485; Barnard's Case, 19 How. St. Tr. 815; Rex v. Donellan, Steph. Dig. Ev. (Chase ed.) 21. 67 Painter v. People, 147 Ill. 444, 35 N. E. 64; Commonwealth v. Holmes, 157 Mass. 233, 32 N. E. 6, 34 Am. St. 270; People v. Harris, 136 N. Y. 423, 33 N. E. 65; Commonwealth v. Ferrigan, 44 Pa. St. 386. 68 Redd v. State, 68 Ala. 492; State V. Hoyt, 46 Conn. 330; Commonwealth v. Blair, 126 Mass. 40; Commonwealth v. Roach, 108 Mass. 289; People v. McGuire, 135 N. Y. 639, 32 N. E. 146. 69 Jamison v. People, 145 Ill. 357, 34 N. E. 486; Commonwealth v. Tolliver, 119 Mass. 312; State v. Howell, 117 Mo. 307, 23 S. W. 263; Donohue v. People, 56 N. Y. 208; State v. Williams, 27 Vt. 724. 70 Lander V. People, 104 Ill. 248; Commonwealth v. Costley, 118 Mass. 1; Commonwealth v. Densmore, 12 Allen (Mass.) 535; People v. Parker, 137 N. Y. 535, 32 N. E. 1013. 71 Slattery v. People, 76 Ill. 217; Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235; Commonwealth v. McDermott, 123 Mass. 440, 25 Am. Rep. 120; People v. Willett, 92 N. Y. 29, 1 N. Y. Cr. 355. cases.72 Among these exceptions are, dying declarations, made by the deceased in a homicide case as to the cause of his death if it is shown that they were made when the deceased was in extremis, and had no hope of recovery;73 evidence given in a former trial, under certain circumstances, such as when the witness who there testified is dead, insane, or can not be produced at the trial. In prosecutions for rape the woman's conduct, especially the fact that she made complaint after the commission of the crime, may be shown in evidence.75 Evidence of another crime, other than that charged, is admissible when it falls under any of the rules above stated. The acts or declarations of any one of two or more persons who conspire to commit an offense, said or done in the presence of the others in the furtherance of their common design are admissible against any of them.76 Voluntary confessions by the defendant that he committed the crime with which he is charged are admissible in evidence." Involuntary confessions are not admissible. An involuntary confession is one induced by hope of reward or fear of punishment with reference to the particular charge held out by some person in authority.78 Persons in authority, as the term is here used, includes the prosecuting witness, the prosecuting 72 United States v. Wilson, 60 Fed. 890; Bedford v. State, 36 Nebr. 702, 55 N. W. 263; Davis v. State, 32 Tex. Cr. 377, 23 S. W. 794. 78 Simons v. People, 150 Ill. 66, 36 N. E. 1019; Jones v. State, 71 Ind. 66; State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. 405. 74 Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244; Bass v. State, 136 Ind. 165, 36 N. E. 124; Brown v. Commonwealth, 73 Pa. St. 321, 13 Am. Rep. 740. 75 Richards v. State, 36 Nebr. 17, 53 N. W. 1027; Baccio v. People, 41 N. Y. 265; Proper v. State, 85 Wis. 615, 55 N. W. 1035. 76 Williams v. State, 47 Ind. 568; Commonwealth v. Scott, 123 Mass. 222, 25 Am. Rep. 81; People v. Arnold, 46 Mich. 268, 9 N. W. 406; People v. Davis, 56 N. Y. 95. 77 Walker v. State, 136 Ind. 663, 36 N. E, 356; Commonwealth v. Johnson, 162 Pa. St. 63, 29 Atl. 280. 78 Commonwealth v. Myers, 160 Mass. 530, 36 N. E. 481; State v. Drake, 113 N, Car. 624, 18 S. E. 166. attorney, the magistrate or judge, and the officer who has the accused in custody." A witness must only state facts and not opinions, as a general rule.80 When some question of science or art is involved the opinion of a person specially skilled in such matters may be given in evidence.81 The defendant always may show that he has a good character,82 but the prosecutor may not show that he has a bad character until the accused has introduced evidence of good character, unless the character of the accused is itself in issue.88 Also in homicide cases where the defendant claims that he acted in self defense, he may show that the deceased was a violent and dangerous man.84 § 983. Presumptions and burden of proof.-A person charged with crime is presumed to be innocent and the state must prove every element of his offense and convince the jury of his guilt beyond a reasonable doubt.85 This requires a much higher degree of proof than in civil cases where the plaintiff is only required to prove his case by a preponderance of the evidence. When there is a defense of insanity to a criminal charge, the correct rule is, after the defendant has introduced evidence tending to show insanity, the burden is then upon the state to show beyond a reasonable doubt that the defendant is sane.88 79 State v. Staley, 14 Minn. 105; People v. Phillips, 42 N. Y. 200. 80 Jones v. State, 58 Ark. 390, 24 S. W. 1073; State v. Coella, 8 Wash. 512, 36 Pac. 474. 81 State v. Ginger, 80 Iowa 574, 46 N. W. 657; Coyle v. Commonwealth, 104 Pa. St. 117. 82 Hall v. State, 132 Ind. 317, 31 N. E. 536; Stover v. People, 56 N. Y. 315. 88 People v. White, 14 Wend. (N. Y.) 111. An insane person 84 Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. 232; Cannon v. People, 141 Ill. 270, 30 N. E. 1027. 85 Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. 320; Fanton v. State, 50 Nebr. 351, 69 N. W. 953, 36 L. R. A. 158. 86 United States v. Foulkner, 35 Fed. 730; Grubb v. State, 117 Ind. 297, 20 N. E. 257, 725. |