Page:United States Statutes at Large Volume 76A.djvu/498

–402– -402§ 3067. Burden of proof The party holding the affirmative of the issue shall produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. § 3068. Proof of aflSrmative and negative allegations A party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when the negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such a case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party. § 3069. Proof of material allegations; relevant evidence (a) A material allegation in a pleading is one which is essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. (b) None but a material allegation need be proved. (c) Evidence shall correspond with the substance of the material allegations and be relevant to the question in dispute. Collateral questions shall therefore be avoided. I t is, however, within the discretion of the court to permit inquiry into collateral fact, when the fact is directly connected with the question in dispute, and is essential to its proper determination or when it affects the credibility of a witness. § 3070. Effect of evidence; instructions to jury Where trial is by jury, the jury, subject to the control of the court, in the cases specified in this title, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They are, however, to be instructed by the court on all proper occasions: (1) that their power of judging of the effect of evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence; (2) that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds; (3) that a witness false in one part of his testimony is to be distrusted in others; (4) that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution; (5) that in civil actions the affirmative of the issue must be proved, and when the evidence is contradictory the decision must oe made according to the preponderance of evidence; that in criminal actions guilt must be established beyond reasonable doubt; (6) that evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore, (7) that if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust; and (8) that the jury are the exclusive judges of the credibility of a witness and that, in determining whether a witness speaks the truth, they may consider the manner in which he testifies; the character of his testimony; the evidence affecting his character for truth, honesty, or integrity, or his motives; and contradictory evidence. .*.v,».«/; s r 'T • •. ^*i»

�