language of the oral declaration, if it was read to the deceased and he then stated that it was all he wanted to say.23 But the circumstances of its preparation, and all questions as to whether the deceased understood the meaning and contents of the writing, are wholly for the consideration of the jury, to be considered in determining what weight they should give to it. A statement added to the writing by another after the accused had signed it, though a part of the res gestæ, must be regarded as an oral declaration, and proved as such.25

Granting that the writing is evidence, and that its sole use is not merely to refresh the memory, the question remains to be considered, is it the best or primary evidence of the oral declaration, so that its absence must be accounted for before the declaration can be proved by parol evidence? Upon this question the cases are divided. The original statements were oral, and the mere fact that they were written down as they were uttered gives the writing no greater value as evidence than the oral statement. On these grounds many authorities hold that the writing, even though signed and sworn to by the deceased, is not the best evidence of the declaration,20 and some even limit its use to refreshing the memory of the witness. But this rule is not of universal recognition, and it has several times been held that the writing is primary evidence, so that its absence must be accounted for before its contents can be proved by parol.27

23

People v. Bemmerly, 87 Cal. 117, 25 Pac. 266; Foley v. State, 11 Wyo. 464, 72 Pac. 627.

24

Perry v. State, 102 Ga. 365, 30 S. E. 903.

State, 139 Ala. 74, 36 So. 138, 101 Am. St. 17; State v. Clark (W. Va., 1908), 63 S. E. 402; Jarvis v. State, 138 Ala. 17, 34 So. 1025. Where a dying declaration was made under oath to a

State v. Doris (Ore., 1908), 94 justice of the peace which the justice

Pac. 44.

State v. Whitson, III N. Car. 695, 697, 698, 16 S. E. 332; Darby v. State, 92 Ala. 9, 15, 9 So. 429; State v. Mathes, 90 Mo. 571, 2 S. W. Soo; Commonwealth v. Haney, 127 Mass. 455, 458; Anderson v. State, 79 Ala. 5, 8; State v. Patterson, 45 Vt. 308, 314, 12 Am. 2001; State v. Sullivan, 51 Iowa 142, 50 N. W. 572; Kirby v. State, 151 Ala. 66, 44 So. 38; Sims v.

reduced to writing as fully as he could, it was proper for him, in addition to reading his notes, to supply from his recollection the remainder of the declarant's statement. Mitchell v. State, 82 Ark. 324, 101 S. W. 763. King v. State, 91 Tenn. 617, 650, 20 S. W. 169; People v. Glenn, ro Cal. 32; State v. Parham, 48 La. Ann. 1309, 20 So. 727; People v. Callaghan, 4 Utah 49, 6 Pac. 49; Drake v. State.

27

If the dying declaration was committed to writing by an official under some express statutory requirement, it partakes of the character of a public writing or record, and must be proved as such.

Where the written declaration is not read to or signed by the deceased, it is certainly not primary evidence, unless it be a record, as for example a statement taken by a coroner. 28

Indeed, it may be doubtful if a writing which was taken down from the lips of the deceased, but which was not signed by him, is competent at all. It may unquestionably be used, however, to refresh the memory of the witness who heard the declaration while he testifies orally to what he heard." Thus, for example, a justice of the peace may testify to an oral dying declaration made to him and taken down by him in writing. It is not improper to permit him to read his notes to the jury, though they were never signed by the deceased, if the justice will swear that he knows them to be substantially correct. 30

That some statements were committed to writing, while others were not, does not exclude parol proof of those wholly oral when the writing can not be produced or its absence accounted for.31

§ 113. Declarations by signs-Mental condition of the declarant.The declaration is usually oral, though this is by no means indispensable. It may be made by signs, where the dying person is speechless, as by a nod, the pressure of the hand, or by pointing to visible persons or objects in answer to leading questions.3

32

Under these circumstances, and also where the declaration is

25 Tex. App. 293, 7 S. W. 868; Collier v. State, 20 Ark. 36; Jones v. State, 71 Ind. 66; State v. Tweedy, II Iowa 350; Merrill v. State, 58 Miss. 65, 67; State v. Williams, 28 Nev. 395, 82 Pac. 353; State v. Clark (W. Va., 1908), 63 S. E. 402.

State v. Sullivan, 51 Iowa 142, 50 N. W. 572; Fuqua v. Commonwealth, 118 Ky. 578, 81 S. W. 923, 26 Ky. L. 420.

30 Mitchell v. State, 82 Ark. 324, IOI S. W. 763.

31 People v. Simpson, 48 Mich. 474, 12 N. W. 662; Rex v. Reason, I Str. 499, 500; State v. Walton, 92 Iowa 455, 61 N. W. 179, 181; State v. Schmidt, 73 Iowa 469, 35 N. W. 590; Underhill on Ev., p. 146. Otherwise if the writing is produced. Adams v. State (Tex. App., 1892), 19 S. W. 907. Cf. State v. Finley, 118 N. Car. 1161, 24 S. E. 495; State v. Doris (Ore., 1908), 94 Pac. 44.

32 "If the injured person had but the action of a single finger and with

35

33

offered in writing, it must appear by independent evidence that the declarant was mentally conscious, realized his dying condition, possessed memory, consciousness and intelligence sufficient to know what he was doing and saying, and, where a declaration in writing is offered, that he understood clearly its contents.36

These are all questions for the jury, to be determined upon a consideration of all the facts. And a non-professional witness may not testify that, in his opinion, the declarant was delirious at the time he made his dying statement unless he can state all the facts upon which his conclusion is based.37

§ 114. Dying declarations made by children.-It is always necessary, in order that a dying declaration should be admitted, to show that the declarant, if living, would be a competent witness. If, therefore, it appears from the facts of the case that the deceased was a child of tender years, who was not possessed of sufficient memory or intelligence to comprehend the nature and religious sanction of an oath, or that he did not expect to be punished in a future state if he told a lie, the declaration should be rejected.38

that pointed to the words yes or no in answer to questions in such a manner as to render it probable that he understood, and was at the time conscious that he could not recover, it is admissible." Commonwealth v. Casey, II Cush. (Mass.) 417, 422, 59 Am. Dec. 150; Mockabee v. Commonwealth, 78 Ky. 380, 382; Walker v. State, 139 Ala. 56, 35 So. IOII.

Tracy v. People, 97 Ill. 1OI.

4 Mitchell v. State, 71 Ga. 128. Expert testimony to show deceased was rational when he made his statement has been rejected. Lyles v. State, 48 Tex. Cr. App. 119, 86 S. W. 763.

credibility of testimony of a medical witness in relation to the condition of deceased at the time of making dying declarations is a question for the jury. State v. Davis, 134 N. Car. 633, 46 S. E. 722.

37

State v. Nowells, 135 Iowa 53, 109 N. W. 1016.

35 In Rex v. Pike, 3 C. & P. 598, the declaration of a four-year-old child was rejected because, while it was shown that she knew she would die, she did not have that idea of a future state which is needed to make such a declaration admissible. But in Reg. v. Perkins, 9 C. & P. 396, the declaration of a child was admitted upon it being shown that he had a proper conception of a future existence beyond the grave.

CHAPTER XI.

CONSCIOUSNESS OF GUILT.

$115. Facts showing a consciousness § 120. Resistance to arrest.

§ 115. Facts showing a consciousness of guilt.-Any statement or conduct of a person indicating a consciousness of guilt, where at the time or thereafter he is charged with or suspected of the crime, is admissible as a circumstance against him on his trial. Evidence of circumstances, which are part of a person's behavior subsequent to an event with which it is alleged or suspected he is connected with or implicated in, are relevant if the circumstances are such as would be natural and usual, assuming the connection or implication to exist. This rule of circumstantial evidence may be regarded as almost universally applicable. And sometimes, but not universally, evidence of actions and circumstances, inconsistent with such an assumption, is relevant as a basis for an inference that the person accused or suspected did not participate in the event. Under these rules evidence will be received to prove or disprove facts or circumstances which indicate a consciousness of guilt on the part of the accused, existing after the crime with which he is charged was committed.

His conduct and general demeanor, his language, oral or written, and his mental and physical condition, attitude and relations towards the crime, or his actions in the presence of those who dis

covered the crime,1 or who are engaged in detecting its perpetrator, are relevant.2

The time which has elapsed, between the time of the crime and the occurrence of the incriminating or accusatory actions relied on to connect the accused with the crime, is sometimes an important element. The circumstances of the conduct of the accused must not be so remote in time or extend over so long a period as to create a strong probability that they are the outcome of other motives than a consciousness of guilt. On the other hand the reception of this evidence, whether consisting of statements or events, never depends on its contemporaneous connection with the crime that is charged, or on its being a part of the res gesta.*

3

§ 116. Falsehoods by accused or suspected persons.-Evidence that the accused told falsehoods, or avoided, or attempted to avoid, giving information of himself, his actions or his whereabouts, at or about the time of the crime either in describing it or his relation to it, as when he has given false testimony at a coroner's in

1

1 People v. Pyckett, 99 Mich. 613, 58 N. W. 621; State v. Jacobs, 106 N. Car. 695, 10 S. E. 1031; Hart v. State, 15 Tex. App. 202, 49 Am. 188n. See Elliott Ev., § 2723.

2 McAdory v. State, 62 Ala. 154; People v. Stanley, 47 Cal. 113, 17 Am. 401; People v. Welsh, 63 Cal. 167; State v. Hill, 134 Mo. 663, 36 S. W. 223.

3 State v. Baldwin, 36 Kan. 1, 12, 12 Pac. 318; State v. Hogan, 117 La. 863, 42 So. 352; People v. Tubbs, 147 Mich. 1, 110 N. W. 132; Parnell v. State, 50 Tex. Cr. App. 419, 98 S. W. 269.

People v. Stanley, 47 Cal. 113, 119, 17 Am. 401; People v. Welsh, 63 Cal. 167.

State v. Williams, 66 Iowa 573, 574, 24 N. W. 52; Cathcart v. Commonwealth, 37 Pa. St. 108, 113; State v. Williams, 27 Vt. 724, 726; State v. Bradley, 64 Vt. 466, 469, 24 Atl. 1053;

Hicks v. State, 99 Ala. 169, 171, 13 So. 375; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; State v. Cronin, 64 Conn. 293, 305, 29 Atl. 536; Commonwealth v. Tolliver, 119 Mass. 312; Commonwealth V. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235; McCann v. State, 13 S. & M. (Miss.) 471, 497 (denial of name); Reg. v. Miller, 18 Cox Cr. Cas. 54; Commonwealth v. Johnson, 162 Pa. St. 63, 29 Atl. 280; Wilson v. United States, 162 U. S. 613, 40 L. ed. 1090, 16 Sup. Ct. 895; Hamilton v. State, 62 Ark. 543, 36 S. W. 1054: People v. Cuff, 122 Cal. 589, 55 Pac. 407; People v. Moran, 144 Cal. 48, 77 Pac. 777; State v. Jennings, 48 Ore. 483, 87 Pac. 524, 89 Pac. 421; Van Wyk v. People (Colo., 1909), 99 Pac. 1009; Logan v. Commonwealth (Ky.), 29 S. W. 632, 16 Ky. L. 508: State v. Benner, 64 Me. 267; State v. Lambert (Me., 1908), 71 Atl. 1092.