§ 667. Functions of court and jury as to evidence.Questions as to the competency and relevancy of evidence. are decided by the court. The weight of the evidence, or what it proves, is a question for the jury.

§ 668. Things which need not be proved, or of which courts take judicial notice. There is a class of facts which need not be proved, and which are presumed to be known to the judge and jury. They are facts of which courts take judicial notice, as of the existence of nations, of national flags and seals, of the titles of sovereigns or rulers, of public acts, decrees and judgments certified under the seal of foreign nations, of the public laws of the state in which the court is held, of the usages of commercial business, of the genuineness of a notary's seal, of the geographical boundaries of states and nations, of the distances of cities and towns from one another. In short, the court will take judicial notice of what ought to be generally known within the limits of their jurisdiction, and if the memory of the judge is at fault, he may resort to books, maps or other documents to refresh his memory.

§ 669. Written and oral evidence.-Evidence is written or oral. Written evidence consists of all written agreements, instruments, records, public or private, the production and contents of which tend to establish or disprove any material fact in issue. Oral evidence consists of the viva voce statements made by witnesses in open court under oath. Oral evidence is allowed where it relates to facts observed by the witness, or in case of experts to matters of opinion. A deposition is the oral evidence of a witness who can not be produced at the trial, which has been reduced to writing by some competent person, in the presence of the parties. It is in

the form of questions and answers. When properly taken upon due notice, and filed in court, it may be read to the jury.

§ 670. Attendance of witnesses, how procured.The attendance of witnesses within the jurisdiction of the court is procured by the issuing and service upon the witness of a writ which is called a subpoena. This requires him to appear in court upon a day named and to remain in attendance until discharged by the court. The subpoena is usually served by the sheriff, by reading it to the witness in person or by leaving a copy for him at his residence. When served the officer returns the subpoena to the clerk with his indorsement thereon showing the time and manner of service. If, in addition to the testimony of the witness, the party calling him wishes him to produce at the trial any document in his possession, there is a clause inserted in the subpoena requiring him to bring with him the document named, giving a particular description of it, so that the witness may know precisely what is wanted. Such a subpoena is called a subpoena duces tecum. If a witness refuses to obey a subpoena, an attachment will be issued against him, and in a proper case he will be punished for a contempt of

court.

§ 671. Competency of witnesses. Before the enactment of recent statutes on the subject, many persons who are now competent witnesses were held to be incompetent, on account of their interest in the result of the suit, their relation to the parties and upon other grounds not necessary to be enumerated. By the law of most if not all of the states, these objections which formerly went to the competency of the witness now go to his credibility. There still remains a rule which is almost universal which

excludes from the consideration of the court and jury what are called privileged communications. These are communications between priest and penitent, husband and wife, physician and patient, attorney and client. Secrets of state are also privileged, and a witness can not be compelled to testify to any fact which would tend to expose him to prosecution for crime.

§ 672. Hearsay evidence.-Hearsay evidence is what a witness says he heard somebody else say, and such evidence is generally excluded. The reasons for the rule are obvious. To allow such evidence would enable the party producing it to get before the jury the statements of persons who were not testifying under the sanction of an oath, and were not subjected to cross-examination. There is the danger also that the witness testifying to the statement may not have heard all of it, or may have remembered it imperfectly: It is a weak sort of evidence at best, and to admit it would be to furnish strong temptations to impose upon the court and jury false and fabricated evidence.

§ 673. Exceptions to the rule excluding hearsay evidence. There are, however, some declarations that in strictness might be called hearsay, which are admissible in evidence:

(1) Where the fact that the declaration was made and not its truth or falsity is the point in question.

(2) Expressions of bodily or mental feelings where the existence of such feelings is the subject of inquiry.

(3) In cases of disputed pedigree, the declarations of the members of the family asserting kinship, entries in the family bible, inscriptions on mural tablets or tombstones are admissible.

(4) Declarations accompanying an act and which tend

to show the intent, or any statement made at the time and forming a real part of the transaction.

(5) Dying declarations of the victim of a homicide, made under the apprehension of death, concerning the identity of the slayer and the circumstances of the killing.

(6) Where a statement is made by a witness out of court inconsistent with his testimony in court it can be proved to impeach his veracity.

(7) Where the statement is made by a party to the suit, or by his authorized agent, in relation to the matter in controversy, and which is against the interest of the party.

§ 674. Examination of witnesses.-The order of the examination of witnesses is as follows: First, the direct examination by the counsel of the party calling the witness; second, the cross-examination by the counsel of the opposite party; and, third, the redirect examination by the counsel of the party calling the witness. As a general rule leading questions, or questions which suggest the desired answer, can not be asked of a party's own witness. A witness who surprises the party who calls him by giving adverse evidence may be asked leading questions on his direct examination, and the same privilege is allowed to a party who is compelled to call a witness who is hostile to him. On cross-examination leading questions are allowed. A witness may refresh his memory while testifying by referring to a written memorandum, but if he does so the opposite party has a right to inspect the memorandum and cross-examine the witness in relation thereto.

§ 675. Burden of proof.-The burden of proof in civil cases rests upon the party making an allegation, and the plaintiff must establish his right to a verdict by

producing a preponderance of the evidence.

Where the

defendant makes an affirmative defense, the burden of proving it rests upon him. This burden is sometimes shifted from one party to the other.

§ 676. Arguments of counsel and instructions of the court. When the evidence is closed counsel address the jury in the order in which the evidence was produced, the party upon whom the burden of proof rests having the right to open and close the argument. After the arguments are made, the judge instructs the jury in the rules of law which are applicable to the facts proved. Counsel have a right to request the court to give specific instructions, and if they state the law and are applicable to the case, it is the duty of the judge to give them. A refusal to give them, or the giving of erroneous instructions, furnish grounds for a new trial to the party injured by them.

§ 677. Deliberations of jury and verdict.-After the instructions are given the jury are conducted to a room where they are kept in charge of an officer of the court until they have unanimously agreed upon a verdict. A verdict may be general or special. A general verdict is expressed in general terms, and finds the issue for the plaintiff or defendant. A special verdict is where the jury, by request of the parties or of their own motion, write out a statement of the facts found by them in detail, leaving it for the court to decide upon the facts so found, whether the judgment should be given for the plaintiff or defendant. When they have so agreed they reduce the verdict to form, cause their foreman to sign it, and then bring it into court, where it is delivered to the clerk, who reads it and asks the jury if it is their verdict. If they assent it is recorded. If either party