to meet the witnesses that are produced against him, face to face.19 Second. Dying declarations of persons killed are admissible in criminal prosecutions, in homicide cases, but such dying declarations can not be introduced or considered in any other class of civil or criminal cases. Third. In criminal cases, the defendant is protected against the introduction in evidence, and the consideration by the jury, of his confessions not shown to have been made of his own free will and accord. Fourth. In all criminal prosecutions, the defendant is presumed to be innocent, and this presumption continues with him throughout the trial of the case and applies to each and every element of the offense charged against him, necessary to be proved and established to sustain a conviction.20 Fifth. While in civil cases, it is only necessary to establish a cause of action by a preponderance of evidence, in criminal cases in order to warrant a conviction, it is necessary that the proof should convince the jury of the defendant's guilt beyond a reasonable doubt.21 None of which rules govern in the trial of civil cases. The law of evidence is, however, in this state, substantially the same in equity as at law. 19. Sec. 15623, Comp. Laws 1915. 20. In People v. Cutler, 197 Mich. 6, it is said: "It is stated by Greenleaf on Evidence that 'this legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.' 1 Greenleaf on Evidence, § 34. This theory is attacked as unsound by Thayer's Preliminary Treatise on Evidence, p. 551; also by Wigmore in his work on Evidence (volume 4, § 2511). Wharton on Criminal Evidence also declares against the evidence doctrine (volume 2, pp. 1817, 1818). In Coffin v. United States, 156 U. S. 460 (15 Sup. Ct. 394), the Federal Supreme Court declared in favor of the rule as laid down by Greenleaf, but in a later case it appears to have receded in part from its position in that case. Agnew v. United States, 165 U. S. 36 (17 Sup. Ct. 235). In the State courts some of them have declared in favor of the evidence doctrine, while others have declared against it." 21. People v. Powers, 203 Mich. 40; People v. Coulon, 151 Mich. 200. In Dougherty vs. Randall22 it is said: "No sound reason has ever been assigned, either in the books or at the bar, why the same evidence received in a court of equity should not be received in a court of law, when offered to prove the same fact. It is true that courts of law and courts of equity are differently constituted and that their jurisdiction and powers are different in respect to facts and circumstances when proved, but, in general, the rules of evidence are the same at law as in equity, and the principles which govern the means of obtaining proof are substantially the same in the one court as in the other." It will be assumed that the essential difference between civil and criminal trials, and between law and equity courts, is understood with sufficient clearness, and that the functions of judge and jury are well enough understood to require no extended discussion.23 § 2. The Question of the Admissibility of Evidence-How Raised.-Questions of evidence are reviewed most often on error assigned on rulings of the trial court in excluding and in admitting evidence. (1) Excluding Evidence. In order that the court of review may pass upon errors alleged to have been made by the trial court in rejecting evidence, there must have been (a) An Offer of Evidence; which offer should be distinct and clear, and should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled on in the intended sense by the trial court and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling.1 The facts ought to be stated with 22. Dougherty V. Randall, 3 Mich. 581. 23. In Boudeman v. Arnold, 200 Mich. 162, it is said: "The functions of judge and jury are too well understood to require extended discussion. The jury finds the facts, the judge decides the law. The jury weighs the evidence, the judge determines the legal ques tions. The credibility, sufficiency, and weight of the evidence on a given subject are for the jury; the question whether there is any evidence, on a given subject is for the court." 1. In Reynolds v. Continental Ins. Co., 36 Mich. 131, it is said: "In submitting propositions of proof it is requisite that counsel such clearness in regard to identity and sense as to enable the trial judge and adverse counsel to judge intelligently concerning their admissibility. If the party making the offer does not apprise the court of the purpose for which the testimony is offered, he can not complain of a ruling rejecting it.3 Courts are not bound to spend their time in inquiries which apparently, or from the showing of the party, can have no proper result. And where an offer is rejected but the court should be distinct and clear. A proposition should embody the specific fact or facts in such connection and in such terms as to be apprehended and ruled in the intended sense by the trial judge, and be examined and applied in the appellate court in the proper light to test the accuracy of the ruling if an adverse one." In People v. Long, 50 Mich. 249, it is said: "To render it admissible the offer should have been distinct." 2. In Reynolds v. Continental Ins. Co., 36 Mich. 131, it is said: "The object is to economize time by getting an admission of the facts or a ruling on their admissibility without the tedious process of examination, and the facts proposed ought to be indicated with sufficient clearness in regard to identity and sense to enable the court and adverse counsel to judge intelligently concerning their admissibility." When testimony is offered on the trial for one purpose and excluded, it cannot be claimed that it was admissible for another purpose to which the attention of the court was not called. In Adkin v. Pillen, 136 Mich. 682, it is said: "If from another point of view, the testimony was admissible, it was the duty of the defendant's counsel to bring that to the attention of the court. Having failed to do that, he cannot complain of the court's ruling. It cannot be said that a trial judge errs when he decides a question correctly from the point of view he is encouraged to take by appellant's counsel." 3. In Chase v. Ainsworth, 135 Mich. 119, it is said: "It is a sufficient answer to this contention to say that defendant never apprised the court of this purpose and certainly that purpose could not have been inferred. The court was justified, in the absence of any explanation, in assuming that this question raised an entirely immaterial issue." 4. In Wyngert v. Norton, 4 Mich. 286, it is said: "And to make a question apparently irrelevant proper to be put as a link in a chain of evidence, the proposed question must be accompanied by a proposition to follow it up at the proper time by proof of other facts, which if true, would make the question put legitimately operative. But the court is not bound to spend its time in an inquiry which apparently, or from the showing of the party, can produce no proper results." subsequently suggests that he will consider a new offer of the testimony, and none is made, the error in rejecting it is thereby cured.5 (b) A Ruling of the Trial Court Rejecting the Offer; for where the court has made no ruling there is nothing to review;" and in criminal cases. (c) An Exception Taken. When once the testimony has been offered in proper form, and a ruling thereon made, and an exception to the ruling taken, the question may be passed upon in the appellate court as fully and completely as though an infinite number of exceptions had been taken covering the same point. It is the duty of counsel to rest content with the ruling of the court upon the question.8 and not to repeatedly offer incompetent testimony in the presence of the jury. Where he does so, and it is evident from repeated offers and statements of counsel that the rights of the opposite party may have been prejudiced, such offers and statements themselves constitute error.10 The correct practice in such 5. In Field v. Magee, 122 Mich. 556, it is said: "We think a clear intimation was thereafter given by the circuit judge that he would consider a new offer of this testimony, and no such offer was made. In fairness to the trial judge, the offer should have been renewed. We think the defendant is not in a position to complain of this ruling." 6. In People v. Murray, 52 Mich. 288, it is said: "When the court has made no ruling we have nothing to review." 7. Scripps v. Reilly, 38 Mich. 10. By the Judicature Act it is provided that an exception automatically follows an objection. Sec. 12632 Comp. Laws 1915. 8. In Turner v. Machine Foundry Co., 97 Mich. 166, it is said: "Counsel should have rested content with the ruling of the court upon the question and should not have been permitted under objection to state to the jury what he proposed to prove." In O'Connor V. Madison, 98 Mich. 183, it is said: "Repeated efforts to introduce testimony against the decision of the judge are unseemly, and except where something has been inadvertently omitted or where counsel has not anticipated the ruling made, should not be made or permitted." 9. In Phillips v. United States Benevolent Society, 120 Mich. 142, it is said: "Counsel should not offer testimony in the presence of the jury which they know to be incompetent." 10. In Scripps v. Reilly, 38 Mich. 10, it was claimed that the court was in error in allowing counsel to offer successively in evidence a large number of articles published cases is not clear11. Where the offer is likely to be of such a character that it would have a tendency to prejudice or influence the jury, the correct practice would seem to be to present the article, if in writing, to the court and counsel for the opposite party for examination, without stating either the purport or the substance of it12. But unless an exception to the ruling of the court excluding the testimony is taken, error assigned upon its exclusion will not be considered13. (2) Admitting Evidence. When testimony is offered and rejected, a similar practice prevails. The party against whom it is offered should object to its introduction and, the court having ruled that it is admissible, should except to the rul in the Evening News subsequent to the publication of the article complained of; and this after articles of the same character and offered for the same purpose had been ruled out. The Court said: "These articles under the previous decision were not admissible Counsel in offering the first article admitted that it was, he thought, covered by the previous ruling, but offered it as he desired a distinct ruling of the court below thereon. This he undoubtedly was justified in doing, and in a case of doubt as to the form of the offer, counsel would have a right to vary it, or offer it in connection with other matters, for the purpose of distinctly raising beyond doubt the particular question desired. When, however, this object was accomplished by the offer and rejection, counsel should not offer similar articles clearly covered by the same ruling. Beyond what we have already stated, we can see no good reason for so doing. Once offered in proper form, a ruling thereon and an exception thereto taken, the question may be passed upon in the court of review as fully and completely as though an infinite number of exceptions had been taken covering the same point. If counsel proceed beyond this and make the offers in the presence and hearing of the jury, and the court permits them to be made in this manner, the character of the offers so made may be such, even although they were rejected below, as to require on error a reversal of the judgment, where the party making such rejected offers obtains a verdict and judgment in the case." 11. MacLean V. Scripps, 52 Mich. 214. 12. In Jones v. Village of Portland, 88 Mich. 598, 16 L. R. A. 437, it is said: "The impression which the jury must have received from the offer and statement as well as from the testimony of the witness which the court did not on motion strike out was necessarily detrimental to the defendant." See also Porter v. Throop, 47 Mich. 313. 13. Ellis v. Whitehead, 95 Mich. 105. |