Page images
PDF
EPUB

circumstances. An entry made by a tradesman himself, stating the delivery of goods, is not evidence for him; but, whether made by him or not, it may often serve as a memorandum to refresh the memory of the shopman, and for that purpose is admissible.

It has been already stated, that admissions by one of the parties to a suit, against his interest, are evidence against him; and that statements made by a third person, on being referred to by a party respecting any litigated point (1), or representations by a party's agent (2), are in many cases admissible against the principal. To such cases the objection of hearsay does not apply. Nor does the objection apply to the account which has been given by a witness on a former trial, or to dying declarations.

on former trial.

If a witness, who has been examined in a former action Testimony between the same parties, and where the point in issue was the same as in the second action, is since dead, what he swore at the trial, may be proved by one who heard him give evidence (3). For such evidence was not given in an extrajudicial manner, but upon oath. The parties to the suit were the same, the point in issue was the same, and an opportunity was given for cross-examination. These circumstances plainly distinguish the proposed evidence from hearsay. So, where a person, who had been sworn on a former trial between the same parties on the same issue and subpoena'd to appear as witness at a second trial, did not appear in obedience to the writ, the Court of King's Bench, seeing reason to believe that he had been kept away by the contrivance of the adverse party, admitted other witnesses to prove what he had sworn on the former occasion (4). The person called to prove what a deceased wit

(1) See ante, p. 77.

(2) See ante, p. 74.

(3) Per Cur. in R. v. Carpenter, 2 Show. 47. Buckworth's case, Sir T. Raym. 170. Vin. Ab." Evidence," (T. b. 88.), pl. 4. Coker v. Farewell,

2 P. Will. 563. Pike v. Crouch, I I.d.
Ray. 730. Per Lord Kenyon, 4 T. R.
290. Mayor of Doncaster v. Day,
3 Taunt. 262.

0 4

(4) Green v. Gaturck, Bull. N. P. 243.

ness

Dying declarations.

ness said, must undertake to repeat precisely his very words, and not merely to swear to their effect (1). Thus, in a case before Lord Kenyon, a witness was not allowed to speak to the effect of what the deceased witness had sworn on the former trial. "He ought," said Lord Kenyon, “to recollect the very words; for the jury alone can judge of the effect of words (2)." And he cited the case of the King v. Deborah from one of his own notes, to the same point. For the purpose of introducing an account of what a deceased witness swore on the first trial, the nisi prius record and the postea indorsed are good evidence to shew, that a cause was brought on for trial, or that it was actually tried. (3)

The dying declarations of a person, who has received a mortal injury, are constantly admitted in criminal prosecutions, and are not liable to the common objection against hearsay evidence (4). The principle of this exception to the general rule is founded partly on the awful situation of the dying person, which is considered to be as powerful over his conscience as the obligation of an oath, and partly on a supposed absence of interest on the verge of the next world, which dispenses with the necessity of cross-examination. But before such declarations can be admitted in evidence against a prisoner, it must be satisfactorily proved, that the deceased, at the time of making them, was conscious of his danger, and had given up all hope of recovery. This consciousness of approaching death may be collected either from the circumstances of the case, (as, from the nature of the wound and the state of body), or from expressions used by the deccased (5). And it has been decided by all the judges, that the question, whether the deceased made the declarations under the apprehension of

(1) Ld. Palmerstone's case, cited by Lord Kenyon in R. v. Joliffe, 4 T.R. 290.

(2) Ennis v. Donisthorn, Cornw. Sum. Ass. 1789, MS.

(3) Pitton v. Walter, 1 Str. 162.

(4) R. v. Reason and Tranter, I Str. 499. Woodcoek's case, 2 Leach. Cr. C.566. Bambridge's case, 9 St. Tr. 161.

(5) Woodcock's case, 2 Leach, Cr. C. 566. Dingler's case, ib. 638. John's case, I East, Pl. Cr. 357

death,

death, is a question for the judge to determine, not for the jury. (1)

On the same principle, the dying declarations of an accomplice are admissible; for the accomplice himself would have been a competent witness, if he had been living. This was determined by all the judges in Margaret Tinkler's case (2). The greater part of the judges were of opinion in this case, that the declarations of the deceased were alone sufficient evidence to convict the prisoner; on the ground, that they were not to be considered as evidence coming from a particeps criminis, as she thought herself dying at the time, and had no view or interest to serve in excusing herself, or fixing the charge unjustly on others. But others of the judges held, that her declarations were to be so considered, and therefore required the aid of confirmatory evidence. The declarations of a criminal at the time of his execution cannot be received on the trial of an accomplice; for, after attainder, he could not be sworn as a witness. (3)

The same kind of evidence is admissible in civil cases, as well as in trials for murder. Thus, the declaration of a person, who, having set his name as subscribing witness to a bond, in his dying moments begged pardon of Heaven for having been concerned in forging the bond, was admitted to be evidence of the forgery by Mr. Justice Heath (4), on the authority of Wright on the demise of Clymer v. Littler (5), where similar evidence of a dying confession by a subscribing witness to a will had been received by Chief Justice Willes, and afterwards approved by the Court of King's Bench. Lord Mansfield on that occasion said,

(1) By the opinion of all the Judges, in John's case, 1 East, Pl. Cr. 357., and in Welborn's case, I East, Pl. Cr. 359. In Woodcock's case, which was before the two last, this question had been left to the jury by Eyre C.B., 1 East, Pl. Cr. 360.

(2) 1 East, Pl. Cr. 354, 6.

(3) Drummond's case, I Leach, Cr. C. 378; 1 East, Pl. Cr. 353, S. C.

(4) Cited by Ld. Ellenborough in Aveson v. Lord Kinnaird, 6 East, 195. (5) 3 Burr. 1244. 1255.

"The

Dying declarations.

ness said, must undertake to repeat precisely his very words, and not merely to swear to their effect (1). Thus, in a case before Lord Kenyon, a witness was not allowed to speak to the effect of what the deceased witness had sworn on the former trial. "He ought," said Lord Kenyon, "to recollect the very words; for the jury alone can judge of the effect of words (2)." And he cited the case of the King v. Deborah from one of his own notes, to the same point. For the purpose of introducing an account of what a deceased witness swore on the first trial, the nisi prius record and the postea indorsed are good evidence to shew, that a cause was brought on for trial, or that it was actually tried. (3)

The dying declarations of a person, who has received a mortal injury, are constantly admitted in criminal prosecutions, and are not liable to the common objection against hearsay evidence (4). The principle of this exception to the general rule is founded partly on the awful situation of the dying person, which is considered to be as powerful over his conscience as the obligation of an oath, and partly on a supposed absence of interest on the verge of the next world, which dispenses with the necessity of cross-examination. But before such declarations can be admitted in evidence against a prisoner, it must be satisfactorily proved, that the deceased, at the time of making them, was conscious of his danger, and had given up all hope of recovery. This consciousness of approaching death may be collected either from the circumstances of the case, (as, from the nature of the wound and the state of body), or from expressions used by the deceased (5). And it has been decided by all the judges, that the question, whether the deceased made the declarations under the apprehension of

(1) Ld. Palmerstone's case, cited by Lord Kenyon in R. v. Joliffe, 4 T. R. 290.

(2) Ennis v. Donisthorn, Cornw. Sum. Ass. 1789, MS.

(3) Pitton v. Walter, 1 Str. 162.

(4) R. v. Reason and Tranter, 1 Str. 499. Woodcoek's case, 2 Leach. Cr. C.566. Bambridge's case, 9 St. Tr. 161.

(5) Woodcock's case, 2 Leach, Cr. C.566. Dingler's case, ib. 638. John's case, I East, Pl. Cr. 357

death,

death, is a question for the judge to determine, not for the jury. (1)

On the same principle, the dying declarations of an accomplice are admissible; for the accomplice himself would have been a competent witness, if he had been living. This was determined by all the judges in Margaret Tinkler's case (2). The greater part of the judges were of opinion in this case, that the declarations of the deceased were alone sufficient evidence to convict the prisoner; on the ground, that they were not to be considered as evidence coming from a particeps criminis, as she thought herself dying at the time, and had no view or interest to serve in excusing herself, or fixing the charge unjustly on others. But others of the judges held, that her declarations were to be so considered, and therefore required the aid of confirmatory evidence. The declarations of a criminal at the time of his execution cannot be received on the trial of an accomplice; for, after attainder, he could not be sworn as a witness. (3)

The same kind of evidence is admissible in civil cases, as well as in trials for murder. Thus, the declaration of a person, who, having set his name as subscribing witness to a bond, in his dying moments begged pardon of Heaven for having been concerned in forging the bond, was admitted to be evidence of the forgery by Mr. Justice Heath (4), on the authority of Wright on the demise of Clymer v. Littler (5), where similar evidence of a dying confession by a subscribing witness to a will had been received by Chief Justice Willes, and afterwards approved by the Court of King's Bench. Lord Mansfield on that occasion said,

(1) By the opinion of all the Judges, in John's case, i East, Pl. Cr. 357., and in Welborn's case, I East, Pl. Cr. 359. In Woodcock's case, which was before the two last, this question had been left to the jury by Eyre C.B., 1 East, Pl. Cr. 360.

(2) 1 East, Pl. Cr. 354, 6.

(3) Drummond's case, I Leach, Cr. C. 378; 1 East, Pl. Cr. 353, S. C.

(4) Cited by Ld. Ellenborough in Aveson v. Lord Kinnaird, 6 East, 195. (5) 3 Burr. 1244. 1255.

"The

« PreviousContinue »