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and he at once went to him and reached him within twenty seconds after that, and then heard him say, "I am stabbed; I am gone; Dan Hackett has stabbed me." This evidence was held competent as part of the res gesta. Bigelow, Ch. J., speaking of this evidence, said: "If it was a narrative statement, wholly unconnected with any transaction or principal fact, it would be clearly inadmissible. But such was not its character. It was uttered immediately after the alleged homicidal act, in the hearing of a person who was present when the mortal stroke was given, who heard the first words uttered by the deceased, and who went to him after so brief an interval of time that the declarations or exclamations of the deceased may fairly be deemed a part of the same sentence as that which followed instantly, after the stab with the knife had been inflicted. It was not, therefore, an abstract or narrative statement of a past occurrence, depending for its force and effect solely on the credit of the deceased, unsupported by any principal fact, and receiving no credit or significance from the accompanying circumstances. But it was an exclamation or statement contemporary with the same transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gesta." The learned judge also said that the rule which renders res gesto competent has been often loosely administered by courts of justice so as to admit evidence of a dangerous and doubtful character; and that the tendency of recent decisions has been to restrict within the most narrow limits this species of testimony; and that that court was disposed to apply the rule strictly, and to exclude everything which did not clearly come within its just and proper limitations. It may therefore be laid down as the established doctrine that, as to all facts in evidence properly constituting part of the res gesta, they are to be considered by the jury, in passing upon the question of guilt or innocence, whether introduced by the prosecutor or the defendant. Hill v. People, 1 Colo. 452; State v. Porter, 34 Iowa, 140; Roscoe, Crim. Ev. (7th ed.) 135.

In Maher v. People, 10 Mich. 217, 81 Am. Dec. 781, it is held that in criminal prosecutions the whole of the res gesta should be before the jury, so as to show the real nature, state of mind, and intention with which the act was done; that the object of the trial should be to show the real nature of the whole transaction, whether its tendency be to establish guilt or innocence. It is there

suggested that any inference drawn from a detached portion of an entire transaction may be entirely false. In Wellar v. People, 30 Mich. 20, the court held it to be the duty of the prosecutor in cases of homicide to call those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, unless, possibly, where too numerous. In Hurd v. People, 25 Mich. 406, attention was called to a fact often overlooked by courts as well as prosecuting officers, that “ a public prosecutor is not a plaintiff's attorney, but a sworn minister of justice, as much bound to protect the innocent as to pursue the guilty, and he has no right to suppress testimony." Kent v. People, 8 Colo. 563.

Evidence of exclamations, groans and screams is now permitted more upon the ground that it is a better and clearer and more vigorous description of the then existing physical condition of the party by an eye-witness than could be given in any other way.

It characterizes and explains such condition. True such condition might be simulated, but this possibility is not strong enough to outweigh the propriety of permitting such evidence as fair, natural and original and corroborative evidence of the plaintiff, as to his then physical condition. Its weight and propriety are not therefore now sustained upon the old idea of the necessity of the case. But evidence of simple declarations of a party made some time after the injury and not to a physician for the purpose of being attended to professionally, and simply making the statement that he or she is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration and of a most dangerous tendency while the former necessity for its admission has wholly ceased.

As is said by Judge Allen in Reed v. New York Cent. R. Co. 45 N. Y. 575, the necessity for giving such declarations in evidence where the party is living and can be sworn no longer existing, and that being the reason for its admission, the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously, should also cease. With the rules as herein announced there can be no fear of a dearth of evidence as to the extent of the injury and the suffering caused thereby. The party can himself be a witness if living, and if dead, the suffering is of no moment, and the exclamations of pain, the groans, the signs, the screams can still be admitted. But we are quite clear that the

bald statement made long after the injury by the party that he suffers from pain ought not to be admitted as in any degree corroborative of his testimony as to the extent of his pain. Roche v. Brooklyn C. & N. R. Co. 105 N. Y. 294, 59 Am. Rep. 506.

a. Difficulty in Determining what is. It is not easy always to determine when declarations may be received as part of the res gesta, and the cases upon this subject in this country and in England are not always in harmony. The cases of Com. v. MePike, 3 Cush. 181, 1 Am. Rep. 727, and Travelers Ins. Co. of Chicago v. Mosley, 75 U. S. 8 Wall. 397, 19 L. ed. 437, are extreme cases upon one side, and would justify the reception of the declarations in the last paragraph. The case of Reg. v. Bedingfield, 14 Cox, C. C. 341, is an extreme case upon the other side, and goes much further than would be needed to justify the exclusion of these declarations. That case was decided by Lord Chief Justice Cockburn, after consulting with Field and Manisty, JJ., and aroused much discussion and criticism in England. Bedingfield's Case, 14 Am. L. Rev. 817, 15 Am. L. Rev. 71. The rule as to res gesta laid down in Com. v. McPike, supra, has since been limited, and very properly applied in other cases.

b. Views of Mr. Rapalje.-When it becomes necessary to inquire into the nature of a particular act, or the intention of the person who did it, proof of what he said at the time is admissible for the purpose of showing the true character of the act; but to render such declaration competent, the act with which it is connected should be pertinent to the issue; for when the act is per se incompetent, the union of the two will not render the declaration admissible. Brumley v. State, 21 Tex. App. 222, 57 Am. Rep. 612; State v. Belcher, 13 S. C. 459; State v. Horton, 33 La. Ann. 289; Lander v. People, 104 Ill. 248; Hunter v. State, 40 N. J. L. 495; Mack v. State, 48 Wis. 271. The true test of the admissibility of such testimony is, that the act, declaration or exclamation must be so intimately interwoven with the principal fact or event which it characterizes, as to be regarded a part of the transaction itself, and also to clearly negative any premeditation or purpose to manufacture testimony. Lander v. People, supra; Foster v. State, 8 Tex. App. 248; Rapalje, Crim. Proc. 243.

C.

The General Rule.-The general rule as to res gestæ is that all declarations made at the same time the main fact under consideration takes place, and which are so connected with it as

to illustrate its character, are admissible as original evidence, being what is termed a part of the res gesta, in other words, a part of the thing done. The cries of the bystanders while the thing is being done are original, and not hearsay evidence, because they are part of the res gesta, but a defendant may not manufacture evidence for himself, either before or after or in the moment of the assault, and claim its admission under this head, and in no just sense can words spoken several moments before or after the event be considered a part of the thing done. Territory v. Yar

berry, 2 New Mex. 391.

The res gesta consists of two parts, the accompanying acts and the declarations attending them. The rule is, as we have seen, that the whole transaction may be given in evidence. But it is impossible to deduce, from the authorities, an available rule as to what shall be deemed of the transaction, and what shall not. The subsidiary act need not transpire at the same instant with the main one, or always even on the same day; and, in reason, as well as in accordance with the current of the authorities, the time which divides the two is not the controlling consideration, though it may be taken into the account. Is it presumable that, distinctly and palpably, it influenced or was influenced by the main act, or proceeded from the same motive? If so, it is admissible, otherwise not. Such is the doctrine in reason; and, it is submitted, the current of authority is, at least, not adverse. Bishop, Crim. Proc. 1085.

§ 81. What Evidence is Competent in Proof of.-When a declaration, act or omission forms part of a transaction which is a fact in issue relevant to the issue, such declaration, act or omission is relevant if it tends to explain or to show the purpose or character of the transaction. This is equivalent to holding that evidence of occurrences at or about the time the crime is committed, is admissible as part of the res gesta. Com. v. Harwood, 4 Gray, 41, 64 Am. Dec. 49; Schnecker v. People, 88 N. Y. 192; 3 Russell, Crimes (9th ed.) 288; Coleman v. People, 58 N. Y. 555, affirming 1 Hun, 396; Pontius v. People, 21 Hun, 328, affirmed in 82 N. Y. 339; Hope v. People, 83 N. Y. 418; Shipply v. People, 86 N. Y. 375; Walters v. People, 6 Park. Crim. Rep. 15; Rex v. Ellis, 6 Barn. & C. 145; 2 Russell, Crimes, 287, 288; 2 Colby, Crim. Law, 192; Jordan v. State, 22 Ga. 545.

The rule of the res gesta admits declarations made under the

impulse of the occasion, though somewhat separated in time and place, if so woven into it by the circumstances as to receive credit from it. Abbott, Trial Brief, § 628. So what a by-stander says during an occurrence, and in the presence of the actors, is competent as part of the res gesta. Baker v. Gausin, 76 Ind. 317; Wood v. State, 92 Ind. 269. It must certainly be regarded that, in criminal trials, the conduct of the accused at or about the time the offense is alleged to have been committed, and at or about the time of the arrest, may go in evidence to the jury as one means of establishing the fact and extent of the defendant's guilt. This species of evidence has been so often received that we will not undertake to cite the numerous authorities. See Johnson v. State, 17 Ala. 624; Martin v. State, 28 Ala. 81.

a. The Rule in Roscoe.-It is said in Roscoe's Criminal Evidence, p. 115, that "not unfrequently a presumption is formed from circumstances which would not have existed as a ground of crimination but for the accusation itself; such are the conduct, demeanor, and expressions of a suspected person when scrutinized by those who suspect him." While this is an authority enjoining on courts and jury the duty of exercising great caution in receiving and weighing such evidence, it is nevertheless a direct authority for receiving evidence of the conduct, demeanor and expressions of the accused. Liles v. State, 30 Ala. 24.

The true rule is, that all acts and facts upon which any reasonable presumption of the truth or falsity of the issue can be founded, may be given in evidence; but such acts or facts must precede or be part of the res gesta, and, unless as confessions or given for the purpose of explanation or qualification, the subsequent acts and statements of the party are never admissible. The acts and declarations of the prisoner given in evidence in his favor ought to be connected, both in point of subject-matter and of time, with the acts or declarations proved against him. Roscoe, Crim. Ev. 88; Dillin v. People, 8 Mich. 357.

What is said and done by persons during the time they are engaged in a riot constitutes the res gesta, and it is, of course, competent to prove all that is said and done. If the violent or disorderly conduct of the rioters results in injury to property, and the act causing the injury is committed during the riot, the state may prove the act which caused the injury. This evidence is not admitted for the purpose of establishing another offense, but be

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