PROOF
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PROOF
of law; the decisive oath; judicial confession; evidence
or notoriety of the fact. Imperfect or semi-proof is
derived from the testimony of one witness only, or of
several singular witnesses, or of two witnesses not en-
tirely unshaken in their testimony or not beyond all
suspicion ; writings or instruments of a private charac-
ter; a document admitted as authentic only on the
strength of the handwriting; the necessary oath; pre-
sumption which is only probable, not conclusive; pub-
lic report when legally proved. Two imperfect proofs
cannot constitute perfect proof in criminal cases, in
which proof must be clearer than the noonday sun; in
matrimonial cases, when there is question of the valid-
ity of a marriage already contracted; or in civil actions
of a grave character. With these exceptions two in-
complete proofs tending to establish the same point
may constitute full proof or conviction. Judicial proofs
must as a rule be full and conclusive. There are, how-
ever, some exceptions. Thus the testimony of but one
witness will suffice when it is beneficial to another per-
son and hurts no one. Likewise in summary causes of
little moment and not prejudicial to any one, half
proof is sufficient ; also when the judge is commissioned
to proceed, having merely examined into the truth of
the fact (solafacti veritate inspecta).
Confession, the acknowledgment by a person that what is charged or asserted by his opponent is true, is judicial or extra-judicial. Judicial confession is the best of proofs. It must be made in clear and definite terms, in court, that is, before the judge in his official capacity, during the trial, with certain knowledge of the fact and also of the consequences of said confession, by a person not under twenty-five years of age, acting with full liberty and not through fear. Such a confession makes further proof un- necessary; renders valid any previous defective pro- ceedings; and, if made after the defendant has already been convicted, deprives him of the right of appeal. The confession may be revoked during the same session of court in which it was made; after an inter- ruption the only remedy available is to show, if possi- ble, that the confession was illegal, because wanting in some requisite quality, as above. Ordinarily a confession does not militate against accomplices or others, but only against the one confessing. Extra- judicial confession, if properly proved, constitutes in criminal causes a grave presumption, but not perfect proof; in civil cases it is sufficient for the pronouncing of sentence, if made in the presence of the plaintiff or his representative and if it specifically states the cause or origin of the obligation.
Instruments or Documentary Evidence. — -A public instrument is one drawn up by a pubhc official with the required formalities. If a document be the work of a private person, or of an official who does not observe the prescribed formalities, it is a private instrument. Instruments to possess weight must be genuine and authentic. Public instruments consequently must bear the name, title, and seal of the official issuing them. Private documents should be written in the presence of witnesses and attested by them.
Presumptions. — Circumstantial, presumptive, or in- direct evidence, strong enough to establish a moral certainty, is admitted also in canon law, but it must be accepted with caution, and sentence modified in ac- cordance with the degree of evidence. The rational basis of such evidence lies in the connexion of the facts or circumstances, known and proved, with the fact at issue. A presumption consequently is more or less strong, according as the fact presumed is a necessary (vehement, very strong presumption), or usual (strong presumption), or infrequent (rash, unreasonable pre- sumption), consequence of the fact or facts seen, known, or proven. A presumption is legal, if the law itself draw the inference. This is of two kinds: rebut- t able {juris simpliciler) , which may be set aside by con- trary proof; conclusive (juris etdejure), against which
no direct proof is admitted. A presumption is natural
(hominis) when the law permits the judge to draw
whatever inference he considers warranted by the facts
proved; such presumptions are sometimes called pre-
sumptions of facts. The general effect of presump-
tion is to place the burden of proof on him against
whom the presumption militates. A rash presump-
tion is Uttle more than mere suspicion; a grave or
sound presumption constitutes imperfect proof, while
a vehement presumption suffices in civil cases of not
too great importance. Legal presumptions or pre-
sumptions of law are of course stronger than natural
presumptions or presumptions of facts; while specific
presumptions have more weight than those of a
general character. Presumptions that favour the
accused or the validity of an act already performed
are preferred.
Oaths. — Oaths, as proof, are decisive (litis dcciso- rium) or necessary. The decisive oath is given by the judge, when private interests are in question, to one of the htigants at the instance of the other. The case is decided in favour of the one taking the oath; if he refuse to swear, sentence is pronounced against him. The necessary oath is given by the judge on his own initiative, not at the request of one of the litigants, to complete imperfect proof, and is called supplementary; or to destroy the force of circumstantial evidence, aris- ing especially from current rumour, against the ac- cused, and is called purgative. This latter is per- mitted only when there is not at least semi-perfect proof. The supplementary oath is permissible only when there is at least imperfect and yet not full proof. It is not allowed in criminal actions or in important civil cases, as, for example, when the validity of a mar- riage or a religious profession is in question.
Public Report. — Witnesses testify as to the exist- ence or non-existence, the origin, extent, and nature of a public report. Their testimony does not concern the truth or falsehood of the report. It is for the judge to trace the report to its source and accept it at its proper value. Since, however, it is to be pre- sumed that public opinion is founded on fact, in civil matters it furnishes semi-perfect proof, when its ex- istence is properly established. In criminal matters it has less weight still, being sufficient only for an in- vestigation.
Evidence of the Fact. — Evidence or notoriety of the fact, viz., when it is so open and evident that it can- not be concealed or denied, needs no proof. Hence a judicial inspection or visitation of the corpus delicti is often of advantage. Under this head might be mentioned the opinion of experts, who are appointed by the judge to examine certain matters and to give their expert testimony concerning the same.
Rules. — Proof must be clear, specific, and in keeping with the charge or point at issue; otherwise confusion and obscurity will arise. To establish a point other than the one in question will avail nothing. Whether the evidence offered be relevant or not, the judge will determine. The issue must be established substan- tially, not necessarily in all its details. The burden of proof lies with the plaintiff, though the defendant must offer proof in support of his allegations, excep- tions etc. What is evident needs no proof: in criminal cases this axiom applies only to what is evident in law, i. e. he who has the presumption of all in his favour is exempt from the necessity of proving his contention.
Time to Introduce Evidence. — Judicial evidence must be introduced during the trial. Ordinarily, therefore, evidence may not be presented before the hearing of the petition or charge and the answer of the defendant to the same (contestatio litis). This rule, however, does not apply when the judge proceeds summarily or by inquiry; and likewise in certain cases where there is danger of the testimony being lost through death or other cause. Again, as a rule, no
