mitted from malice prepense. If the homicide be proved, the law presumes malice; and, although it may be rebutted by evidence, no such attempt has been made here." R. v. Maloney, 9 Cox, C. C. 6.1 All, therefore, that is meant by the presumption of malice is that when a man commits an unlawful act, unaccompanied by any circumstances justifying its commission, it is presumed that he has acted advisedly and with an intent to produce the natural consequences of such an act. Thus in R. v. Dixon, 3 M. & S. 11, upon an indictment against the defendant, who was employed to make bread for a military asylum, for delivering bread made from unwholesome materials, it was held to be unnecessary to allege in the indictment, and, therefore, of course, unnecessary to prove, that the defendant intended to injure the health of any one, as that was an inference of law arising from the doing of the act. Where a man was convicted of setting fire to a mill, with intent to injure the occupiers thereof, a doubt occurred under the words of the 43 Geo. 3, c. 58, whether an intent to injure or defraud some person ought not to be proved; or at least some fact from which such intention could be inferred, beyond the mere act of setting the mill on fire; but the judges were of opinion that a person who does an act wilfully necessarily intends that which must be the consequence of the act, viz., injury to the owner of the mill burned. R. v. Farrington, Russ. & Ry. 207. And in R. v. Philp, 1 Mood. C. C. 263, where a part owner of a ship was indicted for setting fire to it with intent to prejudice his co-owners, it was held that the intent to prejudice was implied by the act, and that no proof of the intent was, therefore, necessary. The prisoner was indicted in a very recent case for wounding with intent, but the jury found him guilty of unlawful wounding only, and it was held by the fifteen judges that malice was a necessary ingredient in the offence of which he was found guilty, and by the majority of them that malice was sufficiently shown under the following circumstances. The prisoner and the prosecutor, who had been on good terms, were in separate punts upon the water on a light night. The prisoner had on different occasions said he would shoot at a wild fowl even if somebody was in the way at the time. The prisoner fired at *twenty[*24 five yards distance, and at that moment the prosecutor's punt slewed round and he was shot. The prisoner then rendered help, and assured him it was an accident. It was stated in the case that it seemed probable that the prisoner only intended to frighten the prosecutor, and to deter him from coming to shoot there again. The court did not, however, give their reasons for arriving at the conclusion that there was evidence of maliciously wounding. R. v. Ward, L. R. 1 C. C. R. 356; 41 L. J., M. C. 69; but Blackburn, J., in the course 1Proof of a crime sufficient to imply malice unless rebutted by some fact connected with the commission thereof, shifts upon the defendant the burden of proof to rebut such implication. Fein v. Wyoming Ter., 1 Wy. Ter. 376. Such presumption cannot be rebutted by proof of declarations of the accused made after the commission of the offence. U. Š. v. Imsand, 1 Woods, 581. Where the intent forms a material part of the offence there can be no conviction until the intent has been demonstrated beyond a reasonable doubt. Mullins v. State, 37 Tex. 337. 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. 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. D. 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 case, post, tit., "Arson.") See 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. PAGE [ *25 *HEARSAY. General nature of hearsay evidence Evidence to explain the nature of a transaction of complaint in cases of rape in other cases Hearsay evidence-exceptions as to admissibility of Evidence which has already been given in judicial pro- Statements contained in ancient documents on the subject Statements of deceased persons on questions of pedigree. Statements of deceased persons against their own interest regular course Statements having reference to the health or sufferings of Dying declarations Admissible only in cases of homicide The situation of the party who makes them When reduced into writing Degree of credit to be given to Evidence in answer to 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 does 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 v. 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 Ia. 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 solely from what he had been told, was ground for error. Bluitt v. 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 v. State, 4 Baxter (Tenn.) 19; State v. 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 res geste. State v. 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 most important and unexceptionable kind. In this case, it is *not *26] 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. See tit. "Confessions." Rutledge, 27 La. An. 378. But where part of the res gesta such declarations are admissible. State v. 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 gesta. Sessions v. Little, 9 N. H. 271. [Williams v. State, 4 Tex. App. 5; Boothe v. State, Id. 202; Foster v. State, Id. 246; Allen v. State, Id. 581. They can be offset only by declarations made by him at the same time. State v. Gunter, 30 La. An. Pt. 1, 536"; State v. Abbott, 8 W. Va. 741. Self-serving declarations are admissible when part of the res gesta. 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 v. Pike, 65 Me. 111; State v. Lewis, 45 Ia. 20; Thompson v. State, 11 Tex. App. 51; Kernan v. 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 v. Murphy, 45 Cal. 137.] 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 comthe declarations of a prisoner are admitted in his favor, mainly upon the principle of being part of the res geste, 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. State v. Ridgeley, 2 H. & McH. 120; Robetaille's Case, 5 Rog. 171. See Tomkins 7. Saltmarsh, 14 S. & R. 275. [His declarations, however, made an indefinite time before the murder with which he is charged, cannot be given to explain his carrying arms on the day of the murder. Terrell v. Commonwealth, 13 Bush. (Ky.) 246; Rutherford v. Commonwealth, 13 Bush. (Ky.) 608; Harmon v. State, 3 Tex. App. 51; Hester v. Commonwealth, 85 Pa. 139; Maddox v. 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 v. Morrell, 4 Greenl. 368; Gorham v. Canton, 5 Id. 266; State v. Powell, 2 Halst. 244; Bennet 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 gesta, 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 Brunet 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 be made. Commonwealth v. 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 gesta. Bartholemy v. People, 2 Hill, 249. The declaration of a person, who is wounded and bleeding, that the defendant has stabbed 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 gestæ. 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 v. 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 v. Huntly, 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 ine 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 v. Wisdom, 8 Port. 511. The declarations of third persons are not admissible in evidence as part of the res geste, unless they in some way elucidate or tend to give a character to the 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 party who makes them, they are not admissible merely because they 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. Felch, 132 Mass. 22; Felt v. Amidon, 43 Wis. 467; State v. Brown, 64 Mo. 367; see Lauder v. People, 104 Ill. 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 res gesta. Wetmore v. Mell, 1 O. 26; Dawson v. Hall, 2 Mich. 390. To |