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of the argument, said: "I have always thought a man acts maliciously when he wilfully does that which he knows will injure another in person or property." See also Reg. v. Welch, post, tit., " Cattle." Where by the words of the statute creating the offence, the offence must be done unlawfully and "maliciously," it must be shown to have been done " wilfully" by an intentional act; whatever may be the rule as to malice in cases of murder. A man who had been fighting in a crowd threw a stone which broke a window, but he threw it at the people he had been fighting with, intending to strike one or more of them with it, but not intending to break the window: held not guilty. If the jury had found that the prisoner was aware that the window was where it was, and that he was likely to break it, and was reckless whether he broke it or not, it might have been different. R. v. Pembliton, L. R. 2 C. C. 119; 43 L. J., M. C. 91. The prisoner, with the intention of causing terror to persons leaving a theatre, put out the gas on a staircase, and also with the intention of obstructing the exit, placed an iron bar across a doorway. In attempting to escape several of the audience were by the crush injured, it was held that the prisoner was rightly convicted of unlawfully and maliciously inflicting grievous bodily harm upon two of the crowd. "He acted," said Lord Coleridge, "unlawfully and maliciously, not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others were in fact injured." Stephens, J., said: "if the prisoner did that which he did as a mere piece of foolish mischief unlawfully and without excuse, he did it' wilfully,' that is, 'maliciously,' within the meaning of the statute." R. v. Martin, 8 Q. B. I). 54; 51 L. J., M. C. 36. Where the prisoner carelessly set fire to some rum which he intended to steal, and in consequence the ship in which the rum was placed, caught fire, it was held that he could not be convicted of arson of the ship. Reg. v. Faulkner, 13 Cox, C. C. R. Ir. 550. (See this wise, post, tit., "Arson.") Sec post, "Malicious Injuries."

Presumption of intent to defraud. This presumption is very similar to that of malice; it is always made whenever the natural consequence of the act is to defraud, and no proof is necessary that such was the intention of the prisoner. The only cases which have arisen upon this head of presumptions relate to forgery and arson, with respect to which the law has been somewhat modified by statute; it is therefore considered more convenient to discuss it in the chapter relating to those classes of offences.

•HEARSAY. [*25


General nature of hearsay evidence 25

Evidence to explain the nature of a transaction .... 25

of complaint in cases of rape 26

in other cases 28

Hearsay evidence—exceptions as to admissibility of . . . 29
Evidence which has already been given in judicial pro-
ceedings ..... 29

Statement* contained in ancient documents on the subject

of ancient iH)ssession 29

Statements of deceased persons on questions of pedigree . 29
Evidence of reputation on questions of public or general

right ... . 30

Statements of deceased persons against their own interest 30
Statements of deceased persons making entries, etc., in

regular course 31

Statements having reference to the health or sufferings of

the person who makes them 31

Dying declarations 33

Admissible only in cases of homicide .... 33

The situation of the party who makes them . . 34

Interval of time between the declaration and death . 37

Admissibility of, question forjudge .... 87

When reduced into writing 38

Degree of credit to be given to 88

Evidence in uuswer to 39

General nature of hearsay evidence. Evidence of facts with which the witness is not acquainted of his own knowledge, but which he merely states from the relation of others, is inadmissible upon two grounds. First, that the party originally stating the facts docs not make the statement under the sanction of an oath; and secondly, that the party against whom the evidence is offered would lose the opportunity of examining into the means of knowledge of the party making the statement. A less ambiguous term by which to describe this species of evidence is second-hand evidence.1

1 But the remarks made by the witness himself to the defendant are not hearsay. Charles v. State, 49 Ala. 332. In an indictment for keeping a faro bank, a witness cannot testify that he understood from others that the defendant owned the faro bank. Schooler v. State, 57 Ind. 127; nor can a witness prove anything that took place between the accused and a third person, that person must be called as a witness. Davis i'. State, 37 Tex. 237. For the same reason where a child is too young to testify as a witness, a statement made by it to others is not admissible in evidence. Smith v. State, 41 Tex. 352. In a prosecution for adultery parol evidence of the contents of a letter stating that the husband of one of the parties was dead, is inadmissible as hearsay. State v. Henke, 58 la. 457. Willett v. People, 27 Hun, (N. Y.) 469. The admission of the testimony of a witness that the shoes of the defendant, produced on the trial, would produce certain tracks, his knowledge of the character of these tracks being derived Bolely from what he had been told, was ground for error. Bluitt r. State, 12 Tex. App. 39; S. C. 41 Am. Rep. 666. The evidence given by a sworn interpreter is not hearsay. People v. Ah Wee, 49 Cal. 236. The admissions and declarations of third persons are hearsay and inadmissible. Grigsby r. State, 4 Baxter (Tenn.) 19; State r. Swain, 68 Mo. 605. As the threats of a mob against the defendant, made after the homicide. State r. Sneed, 88 Mo. 138. Except when part of the rt» gesUt. State t>. Gabriel, 88 Mo. 631. So also self-serving declarations. State v. Evidence to explain the nature of the transaction. The term

hearsay evidence is frequently applied to that which is really not so in the sense in which that term is generally used. Thus, where the inquiry is into the nature and character of a certain transaction, not only what was done, but also what was said by those present during the continuance of the transaction, is admissible; and this is sometimes represented as an exception to the rule which excludes hearsay evidence. But this is not hearsay evidence; it is original evidence of the ^op-i most important and unexceptionable kind. In this case, it is *not J a second-hand relation of facts which is received, but the declarations of the parties to the facts themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances. Thus it has been held on a prosecution for high treason, that the cry of the mob who accompanied the prisoner, may be received in evidence as part of the transaction. R. v. Lord George Gordon, 21 How. St. Tr. 535; Best, Ev. 572; R. v. Damaree, Fost. Cr. Law, 213; 15 How. St. Tr. 522. See also Rouch v. The Great Western Railway Company, 1 Q. B. 51, 41 E. C. L.; R. v. Hall, 8 C. & P. 358,34 E. C. L.; Doe v. Hardy, 1 Moo. & Rob. 525. In R. v. Bedingfield, 14 Cox, C. C. 341, where a woman came from a house having had her throat cut immediately before by the prisoner, it was proposed to ask what she said; but Cockburn, C. J., said : "Anything uttered by the deceased at the time the act was being done would be admissible, as for instance, if she had been heard to say something as ' Don't, Harry.' But here it was something stated by her after it was all over, whatever it was, and after the act was completed." This decision gave rise to some discussion, of which a note will be found in the report of the case as cited above. It should seem that the ruling of Cockburn, C. J., was correct, if it is to be taken as a fact, that the transaction was entirely at an end, which it appears was the case. See letter of Cockburn, C. J., cited infra, p. 29. This evidence must not be confounded with evidence of what is said by the accused party himself, which is always capable of being received on another ground, namely, as an admission.1 See tit." Confessions."

Rntledge, 27 La. An. 378. But where part of the res gestae such declarations are admissible. State e. Walker, 77 Me. 488. What deceased said to a third person in prisoner's absence, is hearsay. Johnson v. State, 63 Miss. 313; Field v. State, 57 Miss. 474.

1 Where evidence of an act done by a party is admissible, his declarations made at the time, having a tendency to elucidate or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible as part of the res qexttx. Sessions v. Little, 9 N. H. 271. [Williams v. State, 4 Tex. App. 5; Boothe a, State, Id. 202; Foster t>. State, Id. 246; Allen i>. State, Id. 581. They can be offset only by declarations made by him at the same time. State t>. Gunter, 30 La. An. Pt. 1, 536; State r. Abbott, 8 W. Va. 741. Self-serving declarations are admissible when part of the res gestce. State v. Walker, 77 Me. 488. The guilty intent of" a party may be shown by his acts, conduct, and declarations, made after as well as before the offence charged, and also at the time of the commission of the act. State r. Pike, 65 Me. Ill; State v. Lewis, 45 la. 20; Thompson v. State, ll Tex. App. 51; Keman t.State, 65 Md. 253. So also the acts and exclamations of the prisoner's wife at the time of a murder and in his presence or hearing; People r. Murphy, 45 Cal. 137 J There are some cases in which

Evidence of complaint in cases of rape. The evidence which is almost always given in cases of rape that the woman made a com

the declarations of a prisoner are admitted in his favor, mainly upon the principle of being part of the nx gettie ; as to account for his silence where that silence would operate against him. United States v. Craig, 4 Wash. C. C. 729. So to explain and reconcile his conduct. Stater. Ridgelev, 2II.&McII. 120; Eobetaille's Case, 5Rog.l71. SeeTomkins r. Saltmarsh, 14 S. & R. 275. [His declarations, however, made an indefinite time before the murder with which ho is charged, cannot be given to explain his carrying arms on the day of the murder. Terrell i>. Commonwealth, 13 Bush. (Ky.) 210; Rutherford v. Commonwealth, 13 Bush. (Ky.) G08; Harmon v. State, 3 Tex. App. 51; Hester v. Commonwealth, 85 Pa. 139; Maddox t>. State, 41 Tex. 205.] Where a prisoner indicted for murder has produced evidence of declarations by the deceased, with a view to raise the presumption that he committed suicide, it is competent for the State to give in evidence the reasons assigned by him for his declaration. State v. Crank, 2 Bail. 66. See Little v. Lebby, 2 Greenl. 242; Kimball r. Morrell, 4 Greenl. 368; Gorham v. Canton, 5 Id. 2G6;'State r. Powell, 2 Halst. 244; Iiennet v. Hethington, 16 S. & R. 193. When the state of mind, sentiment, or disposition of a person at a given period become pertinent topics of inquiry, his declarations and conversations, being part of the res gestae, may be resorted to. Bartholemy v. People, 2 Hill, 248. it is not competent for a prisoner indicted for murder to give in evidence his own account of the transaction related immediately after it occurred, though no third person was present when the homicide was committed. State r. Tilly, 3 Ired. 424; contra Bronet v. State, 12 Tex. App. 521. On the trial of a party who is indicted for knowingly having in his possession an instrument adapted and designed for coining or making counterfeit coin, with intent to use it or cause or permit it to be used in coining or making such coin, he cannot give in evidence his declarations to an artificer, at the time he employed him to make such instrument, as to the purposes for which he wished it to lie made. Commonwealth ». Kent, 6 Met. 583. Semble, in a criminal prosecution for damages, mere naked admissions made by the party libelled, are in general incompetent evidence against the people, even to establish facts tending to a justification: otherwise as to conversations or declarations which are part of the res gextce. Bartholemy v. People, 2 Hill, 249. The declaration of a person, who is wounded and bleeding, that the defendant lias stabbsd her, made immediately after the occurrence, though with such an interval of time as to allow her to go from her own room upstairs into another room, is admissible in evidence after her death, as a part of the res geela:. Commonwealth v. Pike, 3 Cush. 181. [Harriman v. Stowe, 57 Mo. 93; Commonwealth v. Fenno, 134 Mass. 217; but see State v. Williams, 34 La. An. 959; People r. Ah Sing, 60 Cal. 85; State v. Carlton, 48 Vt. 636.] On an indictment for a misdemeanor the declarations of the defendant were held admissible in evidence when they accompanied, explained, and characterized the acts charged. State t>. Iluntly, 3 Ired. 418. Whenever the bodily or mental feelings of an individual at a particular time are material to be proved, the expression of such feelings, made at or soon before that time, is evidence of course subject to be weighed by the jury. Roulhac r. White, 9 N. C. 63. The declarations of a party are admissible in his favor when they are so connected with some material act as to explain or qualify it, or show the intent with which it was done. Russell v. Frisbie, 19 Conn. 205. [When the question in i r-ne is whether the defendant absconded, his declarations, made while on his way from his residence, as to his intention to return, are admissible. United States r. Penn, 13 Bankr. Reg. 464; Hunter v. State, 40 N. J. L. 495.] In an indictment for larceny, declarations at the time of his arrest by the prisoner as to his claim of ownership to the property taken, are not admissible in evidence. State r. Wisdom, 8 Port. 511. The declarations of third persons are not admissible in evidence as part of the res gala, unless they in some way elucidate or tend to give a character to tlie act which they accompany, or may derive a degree of credit from the fact itself. If they can have no effect upon the act done, and derive no credit from it, but depend for their effect upon the credit of the partv who makes them, they are not admissible merely because thev have some connection with the act or relate to it. Woods v. Banks. 14 N. H. 101. [People v. Mead, 50 Mich. 228; Greenfield v. People, 85 N. Y. 75; Wiggins r. People, 4 Hun, (N. Y.) 540; Robinson v. State, 57 Md. 14; Commonwealth v. Fclch, 132 Mass. 22; Felt v. Amidon, 43 Wis. 467; State v. Brown, 64 Mo. 367; see Lauder v. People, 104 111. 248.] When an act of a party is admissible in evidence, his declarations at the time, explanatory of that act, are also admissible, as a part of the rei gala. Wetmore v. Mell, 1 O. 26; Dawsou v. Hall, 2 Mich. 390. To plaint of having been violated, is not hearsay, but original evidence of a fact, which is most important, and which cannot be ascertained

make declarations a part of the res geMat they must be contemporaneous with the main fact—not, however, precisely concurrent in point of time. If they spring out of the transaction, elucidate it, are voluntary and spontaneous, and make at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to be regarded as contemporaneous. Mitcham r. State, 11 Ga. (515; I lanbv r. J ohnson, 5 Md. 450. [State r. Garrand, 50 Oreg. 216; State v. Lull, 48 Vt 581; State" v. Winner, 17 Kan. 298; liockwell r. Taylor, 41 Conn. 55; Pierson r. State, 21 Tex. Ap. 14.] Representations made by a sick person to a medical attendant as to his symptoms, are admissible. Johnson r. State, 17 Ala. (518. Any evidence giving an account of the acts of the accused on the day of the murder, is competent against him. Campbell v. State, 23 Ala. 44. What declarations are part of the res gcMie cannot be determined by any precise general rule, but only upon consideration of all the circumstances of each case. Meek r. Perry, 3(5 Miss. 190. In a murder case, the declarations of the murdered man charging the defendant with murder when brought with others into his presence, are admissible, not as dying declarations, but as a part of the circumstances relating to the conduct of the accused when first charged with the crime. State v. Nash, 10 la. 81. The rule that declarations of a party at the time of doing an act which is legal evidence, are admissible as parts of the res gestae, does not apply so as to admit, as against third persons, declarations of a past fact, having the effect of criminating the latter. People v. Simonds, 19 CaL 275. [State ?'. Ilaynes, 71 N. C. 79.] The exclamation or declarations of the prisoner at t he time of the crime are admissible. Mitcham r. State, 2 Ga. (515. [False explanations of suspicious circumstances, made by the accused, are evidence. Walker v. State, 49 Ala. 398.] So silence is a fact, but to be weighed with great caution. Johnson r. State, 17 Ala. 618. Declarations ofthe prisoner, unless part of the rex gert<t, are inadmissible in his behalf. Tipper v. Commonwealth, 1 Met. (Ky.) C; Dickes v. State, 11 Ind. 557. [He cannot by offering proof of any act of his own lay the foundation for introducing nis declarations accompanying that act. Davis r. State, 3 Tex. App. 91; nor can evidence be given on his behalf of a statement made by him subsequent to the crime with which he is charged. Hall r. State, 48 Ga. 607; Powell v. State, 44 Tex. 63; nor are his declarations made to the deceased, at the time of killing, charging him with having insulted his wife, admissible in the absence of direct testimony that such insult was given. Ba.ssham r. State, 38 Tex. 622. Upon the question of the sanity of the prisoner, a letter written by him prior to the commission of the offence, is admissible in evidence to throw light on the condition of his intellect at the time of the act charged. State r. King, 64 Mo. 591; Wharton's Crim. Evid. $ 272, 9th ed. A witness may testify that the accused stated after the homicide that he was sane when it was committed. State t>. Kring, 74 Mo. 612. Declarations, etc., are admissible to explain mental feelinqs, as insanity, etc., as part of the res gestae. Brumlev v. State, 21 Tex. App. 222. Where a witness for the prosecution has testified that he charged the accused with the crime for which he is on trial, the prisoner should be allowed to elicit from the witness the reply to the accusation, though a declaration in his favor. Sager v. State, 11 Tex. App. 110. But self-serving declarations are generally inadmissible on his behalf. Walker ti. State, 13 Tex. App. 618. In an action for assault and battery the defendant cannot prove declarations of the party assaulted made before or after the affray. State D. Newland, 27 Kan. 764. Declarations of the accused made before an alleged stealing claiming the property are admissible on his behalf. State v. Thomas, 32 La. An. 600.] The acts or declarations of the prisoner are not admissible evidence for him, unless they occurred within the period covered by the criminating evidence, or tend in some way to explain some fact or circumstance proved against him, or to impair or destroy the force of some evidence for the prosecution. Chanev i: State, 31 Ala. 342. [State v. Ware, 62 Mo. 597; State v. Umfried, 76 Mo. 404.] In a trial for murder, it is competent for the defendant to prove how he was employed at the time he met with the person he is charged to have killed, and what was his conduct a short time before the affray which resulted in the killing. Stewart v. State, 19 O. 302. In proceedings for assault with intent to kill, the evidence tended to show that defendant was assaulted by the injured party and several others: held that declarations of these persons made at the time of the assault, illustrative of its object and motive, were admissible in evidence as part of the res gextct. People v. Roach, 17 Cal. 297. [But threats made by the deceased after the fatal wound are not part of the res gestce. Caw v. People, 3 Neb. 357.] A declaration made by the accused on the day of the

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