CHAPTER XIV. HEARSAY EVIDENCE. 84. Rule in Civil Cases Applied. 85. General Rule Excluding. 86. Exceptions Noted by a Prominent Text Writer. The subject of hearsay evidence will be accorded very meagre treatment in this immediate connection. The thoroughness with which the entire topic was canvassed in chapter 10 of volume 1 of Evidence in Civil Cases obviates all necessity for further notice. Nothing can be added to the exposition already given, and considerations of space alone will preclude any attempt at a duplication of the views previously expressed, through nearly 70 pages of the chapter referred to. § 84. Rule in Civil Cases Applied.-The same exclusionary rules which are observed in civil cases relative to the introduction of this peculiar grade of evidence, obtain with equal force in criminal cases; and the same exception which public policy and the obvious demands of justice have engrafted upon these exclusionary rules by which hearsay evidence is, under proper conditions, admissible, obtains equally in criminal as in civil cases. No legal proposition that we can state has received more extensive endorsement than that which accords to the rule of evidence the same force and pertinency in criminal as in civil cases. Clearly, if the object of all evidence is the ascertainment and development of truth, the regulations and formulas which are supposed to assist in its development should not be placed in a condition of estrangement merely because the fact to be developed arises in different forms of action. § 85. General Rule Excluding.-Hearsay evidence is inadmissible, to establish any specific fact capable of direct proof by witnesses, speaking from their own knowledge, and when the rule is relaxed, it is from necessity alone. Overstreet v. State, 3 How. (Miss.) 328; Wooster v. State, 55 Ala. 221. After such an inveterate and universal acceptance of a rule acknowledged to be of great practical importance and frequent application, it must be considered that the time has passed for testing its correctness by the criterion of speculation. If such a rule of evidence, after so conspicious and protracted an existence, is to be pushed aside, or even is to be considered as liable to challenge on theoretic grounds, it is difficult to divine upon what stable basis the administration of the law is to be conducted. Graves v. State, 45 N. J. L. 203. There is no rule in the law of evidence more important or more frequently applied than the general one, that hearsay evidence of a fact is not admissible. If any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth; and the reason of the rule is, that evidence ought to be given under the sanction of an oath, and the person who is to be affected by the evidence may have an opportunity of interrogating the witness as to his means of knowl edge, and concerning all the particulars of his statement. There are, however, certain instances where hearsay evidence is admissible, because either the objection does not apply, or from the necessity of the case the rule is relaxed. When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, it is then admissible; for to exclude it might be to exclude the only evidence of which the nature of the case is capable. And, generally speaking, declarations accompanying acts are admissible in evidence as showing the nature, character, and objects of such acts. 2 Russell, Crimes, § 3. In 2 Best, Ev. § 506, under the head of “Res inter alios acta,” it is said: "No person is to be affected by the words or acts of others, unless he is connected with them, either personally or by those whom he represents, or by whom he is represented." State v. Beaudet, 53 Conn. 536, 55 Am. Rep. 155. § 86. Exceptions Noted by a Prominent Text Writer.— Hearsay (derivative, or secondhand, as opposed to secondary) evidence is that which is learnt from some one else, whether by word of mouth or otherwise; in other words, it is anything which does not derive its value solely from the credit given to the witness himself, but which rests also, in part on the veracity and competence of some other person. Harris well known Treatise on Criminal Law tabulates eight exceptions to the rule rejecting hearsay evidence. The reasons usually assigned for the rejection of hearsay evidence are two: (a) that the original statement or writing was not made an oath; (b) that the party affected has not the opportunity of cross-examining the originator of it. Its reception would also have the effect of lengthening the proceedings, with. out any corresponding advantage. We have seen that secondary évidence can be given only where there has been an explanation of the absence of the best evidence; secondhand evidence cannot be given at all, subject to the following exceptions: 1. To prove the death of a person beyond the sea. 2. To prove a prescription, a custom, matters of pedigree, reputation on questions of public or general right. 3. When the hearsay is what the witness has been heard to say at another time, in order to invalidate or confirm his testimony given in court. [This is not hearsay. The evidence is direct and primary that the witness made a certain statement; there is no evidence, in such case, either direct or hearsay, as to the truth of the matter contained in the statement.] 4. Declarations made by persons under the sensible conviction of their impending death. Such declarations are admitted only when the death of the deceased is the subject of the charge (that is, in cases of murder or manslaughter) and only if the declaration refers to the injury which is the cause of death. 5. Statements made by deceased persons, if against their interest, or entries made by them in the regular course of their duty or employment. 6. When the bodily or mental feelings of a person are material to be proved, the usual expressions of such feelings, made at the time in question, are admissible as original evidence; for example, what was said to a surgeon immediately after an assault. 7. When the sayings, etc., of another are part of the res gesta, that is, of the general transaction, and are not merely a medium of proof of another fact. Thus the cries of a person being stabbed, in a mob, are good evidence. In fact, these are not strictly instances of hearsay evidence at all, but the original proofs of what took place. 8. Evidence, in the second trial, of testimony given by a wit ness now deceased, at a former trial of the same case between the same parties. It will be convenient here to notice the rule that if a witness is dead, or too ill to travel (or kept out of the way, as against the person so keeping him out) his depositions may be read provided that such depositions were taken in the presence of the accused, and that he had an opportunity of cross-examining the witness. Harris, Crim. Law, p. 371. To this category should be added the familiar clause: "The acts or declarations of a deceased person with respect to the relationship, birth, marriage or death of any person related by blood or marriage to a deceased person is relevant when such act or declaration occurred before the question had arisen in respect to which it is to be proved, and the fact to be proved by it is a fact in issue." See Rice, Civil Evidence, chap. 10. § 87. When the Rule in Civil Cases does not Apply.Another objection to the rule rejecting hearsay evidence arises in civil cases when the declaration proved is adverse to the interests of the party making it; and it further appears that the declarant is dead or beyond the jurisdiction. But the utmost industry fails to disclose a solitary instance in criminal prosecutions where this rule has been accorded the least consideration. This subject was recently under careful examination in the United States district court, and the conclusion reached furnishes sufficient authority for the foregoing text. See United States v. Mulholland, 50 Fed. Rep. 413. See also Snow v. State, 58 Ala. 375; Daniel v. State, 65 Ga. 200; Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636; Cookham v. State, 5 W. Va. 510; Bowen v. State, 3 Tex. App. 623; Peck v. State, 86 Tenn. 267; State v. White, 68 N. C. 158. An illustration is afforded of the doctrine under review in all cases where, as a part of the exculpatory evidence, it is sought to prove admissions made by absent parties tending to show that they themselves were guilty of the crime and not the person on trial. Such testimony in criminal cases is unquestionably incompetent. $88. The Rule from Roscoe.-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 secondhand evidence. The term hearsay evidence is often applied to that which is really not so in the sense in which the 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 a secondhand relation of facts which is received, but the declarations of the parties of 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. 1 Roscoe, Crim. Ev. p. 25. Hearsay evidence is not admissible merely because in the particular case no better can be had. State v. Dart, 1 Cow. Crim. Rep. 49. But in cases of pedigree or of death it is admissible when from great lapse of time, or for other sufficient cause, the law presumes that original or direct evidence is not attainable. 2 Phil. Ev. (4th Am. ed.) 238; 1 Phil. Ev. (4th Am. ed.) 194, 197; Cowen & Hill, Notes, 612; Higman v. Ridgway, 10 East, 120, 129; Jackson v. Browner, 18 Johns. 39; Leggett v. Boyd, 3 Wend. 379; Caujolle v. Ferrie, 26 Barb. 177; Stein v. Bowman, 38 U. S. 13 Pet. 220, 10 L. ed. 134; Mima Queen v. Hepburn, 11 U. S. 7 Cranch, 290, 3 L. ed. 348; Jackson v. Etz, 5 Cow. 319; Fosgate v. Herkimer Mfg. & H. Co. 12 Barb. 352; Augustus v. Graves, 9 Barb. 596. Extreme thoroughness has characterized the preceding treatment of this subject and the practitioner is referred to 1 Rice, Civil Evidence, chap. 10, for further views respecting it. |