when a person was last heard of, he will be presumed to be dead;(1) Doe v. Jesson, 6 East, 84; Doe v. Deakin, 4 B. & A. 433;" and with the addition of other [22] circumstances, the *presumption may arise at an earlier period. Thus evidence that a person sailed in a ship bound for the West Indies, two or there years ago, and that the ship has not been since heard of, is presumptive evidence of the death of the party; but the time of his death, if material, must depend upon the particular circumstances of the case. Watson v. King, 1 Stark. N. P. 121. The fact of the party being dead or alive at any particular period within or at the end of the seven years, must be proved by the party asserting that fact. Doe v. Nepean, 5 B. & Ad. 86. And see Rex v. Harborne, 2 A. & E. 540. Nepean v. Doe d. Knight, 2 M. & W. 894.

Z

The term hearsay evidence is used with referénce both to that which is written, and to that which is spoken. But in its legal sense, it is confined to that kind of evidence which does not derive its effects solely from the credit to be attached to the witness himself, but rests also in part on the veracity and competency of some other person, from whom the witness may have received his information. Phill. Ev. 197, 8th ed.

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 sanctity 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

(1) Miller et al. v. Beater, 3 S. & R. 490. King v. Paddock, 18 Johns. 141. Wambaugh v. Scharck, 1 Penn. 229. Innis et al. v Campbell et al., 1 Rawle, 373. Crouch et ux. v. Eveleth, 15 Mass. 305. Battin's Lessee v. Bigelow, Peters, C. C. Rep. 452.

statement. Where, however, the particular circumstances of the case *are such as to afford a presumption that the hearsay evidence is true, it is then admissible, as in the following instances.

Hearsay admissible as part of the res gesta.] Where the inquiry is into the nature and character of a certain transaction, not only what was done, but also what was said, by both parties, during the continuance of the transaction, is admissible; for to exclude this would be to exclude the most important and unexceptionable evidence. In this case, it is not the relation of third persons unconnected with the fact, 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.(1) 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. Lord G. Gordon's case, 21 How. St. Tr. 535. So in a prosecution for a rape, the

(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.

There are some cases in which the declarations of a prisoner are admitted in his favour, mainly upon the principle of being part of the res gesta; as to account for his silence where that silence would operate against him. U. States v. Craig, 4 Wash. C. C. Rep. 729. So to explain and reconcile his conduct. State v. Ridgely, 2 Har. & M Hen. 120. Robetaille's case, 5 Rogers, 171. See Tomkins v. Saltmarsh, 14 Serg. & R. 275.

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 Bailey, 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 Serg. & 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. The 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 v. Tilly, 3 Iredell's N. C. Law Rep. 424.

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 Metcalf, 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. The 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 up stairs into another room, is admissible in evidence after her death, as a part of the res gesta. Commonwealth v. Pike, 3 Cushing, 181.

On an indictment for a misdemeanor the declarations of the defendant were held admissible in evidence when they accompanied, explained, and characterised the acts charged: The State v. Huntly, 3 Iredell, 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 v. White, 9 N. Carolina, 63.

The declarations of a party are admissible in his favour 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.

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. The State v. Wisdom, 8 Port. 511.

fact of a woman having made a complaint soon after the assault took place, is evidence; but it was ruled by Holroyd, J., that the particulars of her complaint could not be given in evidence. Clarke's case, 2 Stark. N. P. C. 242.a By the laws of Scotland, the particulars of such declarations, when made de recenti, are allowed to be given in evidence. Thus in a case of rape, followed by cutting and stabbing, the account which the woman gave when she returned home, all bleeding, the following morning, of the way in which she had been used by the prisoner, was allowed to be fully laid before the jury, though she had just before been examined herself. M'Cartney's case, 1828, Alison, Prac. Crim. Law of Scotl. 514. And in another case of rape, the account which the woman gave to several witnesses the next day, was laid without reserve before the jury. M'Kenzie's case, Id. But this privilege is extended to those accounts only which are connected more or less directly with the res gestæ of the inquiry, or which were so recently given after it, as to form in some sort a sequel to the actual violence. Id. 515. On an indictment for an assault on a child with intent to ravish, the fact of her having complained of the injury recently after it was received, is confirmatory evidence. Brazier's case, 1 East, P. C. 444. In this case the evidence of the child having made a complaint was received, although the child herself was not examined, she being only five years old, and incapable of taking an oath. Such evidence being only admissible as confirmatory evidence, would hardly be received now. In a recent case, it was said by Parke, B., "at the time of Brazier's case, it seems to have been considered, that as the child was incompetent to take an oath, what she said was receivable in evidence. The law was not so well settled then as it is now." Guttridge's case, 9 C. & P. 472 ; S. P. Per Parke, B., Walker's case, 2 Moo. & R. 212. The counsel for the prisoner, may, however, if he thinks proper, elicit the particulars of the complaint on cross-examination. Ibid. Where the prosecutrix had died before the trial, and without her deposition having been taken, Rolfe, B., received evidence (the prisoner's counsel not objecting) that she had made a complaint on her return home, of an outrage having been committed upon her, but held that the particulars of such complaint were not admissible. Megson's case, [ *24 ] 9 C. & P. 420. But in a case where the prosecutrix *was called but did not appear, and it was objected on the part of the prisoners, that evidence of recent complaint is receivable only to confirm the prosecutrix's story, and that as her evidence was not before the jury it could not be confirmed, Parke, B., rejected evidence of the prosecutrix having made a complaint. Guttridge's case, 9 C. & P. 471. Again, in actions of assault, what a man has said of himself to his surgeon, is admissible to show what he has suffered by the assault. Per Lawrence, J., Aveson v. Kinnaird, 6 East, 199. So where a man was killed in consequence of having been run over by a cabriolet, it was held, on an indictment against the driver for manslaughter, that what the man said immediately after receiving the injury, was admissible in evidence. Foster's case, O. B., 6 C. & P. 325. So inquiries by medical men, with the answers to them, are evidence of state of health of the patients at the time, and the symptoms and conduct of the parties themselves at the time, are always received in evidence upon such injuries, and must be resorted to from the very nature of the thing. Per Lord Ellenborough, Aveson v. Kinnaird, 6 East, 195.

On an indictment under 7 & 8 Geo. 4, c. 30, s. 4, for breaking a machine, Patteson, J., allowed a witness to be asked, whether the mob by whom the machine

Eng. C. L. Reps. iii. 344. Id. xxxviii. 188. Id. 173. Id. 188. e Ib. xxv. 421.

was broken, did not compel persons to go with him and give one blow to each machine; and also whether, at the time when the prisoner and himself were forced to join the mob, they did not agree to run away from the mob at the first opportunity. Crutchley's case, 5 C. & P. 133.

Where a constable entered a house, with a warrant in his hand, and searched it; upon an indictment against him and others for a forcible entry, evidence was permitted to be given of what the constable said at the time as to the person for whom he was searching. Eliza Smyth's case, 5 C. & P. 201.8 Lord Tenterden, C. J. Upon an indictment for robbery, the prosecutor proved that he went early the next morning and complained to a constable, and mentioned the name of one of the persons who robbed him. Patteson, J., held that the constable could not be asked what name the prosecutor mentioned, but might be asked whether, in consequence of the prosecutor mentioning a name to him, he went in search of any person, and if he did, who that person was. Wink's case, 6 C. & P. 397.h

An indictment for perjury charged, that, in a suit in Chancery it became material to ascertain whether an annuity granted by G. H. to the defendant, or by G. H. to B., as trustee for the defendant, had been paid, and that the defendant falsely swore that it had not been paid, whereas in truth the annuity had been paid by G. H. to B., and B. had paid it to the defendant. In order to show that B., who had been abroad since 1832, had paid the money to the defendant, it was proved that B. had sent the money to his bankers by his clerk, and it was proposed to ask the clerk what B. said about the money at the time the clerk received it from him to pay it in at the banker's. On the question being objected to, Littledale, J., held it might be put, and that the evidence was receivable, on the ground of its being a declaration made at the time by an agent within the scope of his authority. The learned judge took a note of the objection, but the defendant was acquitted on the merits. Hall's case, 8 C. & P. 358.

*Where a will is disputed on the ground of fraud, circumvention or [25] forgery, the testator's declarations of his intentions are admissible. Doe v. Hardy, 1 Moo. & R. 525.

The admissibility of a declaration depends, not merely in its accompanying an act, but on the light which it throws on an act which is in itself relevant and admissible evidence. See the opinions of the judges, in Wright v. Doe. d. Tatham, 7 Ad. & E. 313; 4 New Cases, 489.1

The following instances of hearsay, admissible as part of the res gestæ are mentioned by Mr. Phillipps. If it be material to inquire whether a certain person gave a particular order on a certain subject, what he has said or written, may be evidence of the order; (see Jenkin's case, 1 Lewin, C. C. 114;) or where it is material to inquire whether a certain fact be it true or false, has come to the knowledge of a third person, what he has said or written, may as clearly show his knowledge, as what he has done. Where it is relevant and material to inquire into the conduct of rioters, what has been said by any of the party in the act of rioting, must manifestly be admissible in evidence, as showing their design and intention. On a charge of larceny, where the proof against the prisoner is, that the stolen property was found in his possession, it would be competent to show on behalf of the prisoner, that a third person left the property in his care, saying that he would call for it again afterwards; for it is material in such a case, to inquire under what i Id. xxxiv. 427.

'Eng. C. L. Reps. xxiv. 244. * Id. 279. * Id. xxxiv. 95.

h Id. xxv. 456. 1 Id. xxxiii. 426.

circumstances the prisoner first had possession of the property. 1 Phill. Ev. 233, 7th ed. (1)

With respect to the declarations of parties, combined together for some illegal purpose, see post, and title Conspiracy.

(1) So the evidence given by a witness, since dead, on a former trial, is competent. Wilbur v. Selden, 6 Cow. 162. Johnston v. The State, 2 Yerg. 58. Watson v. Lisbon Bridge, 14 Maine, 201. State v. De Witt, 2 Hill, S. C. Rep. 282. Keecher v. Hamilton, 3 Dana, 38. Kelly's Exr. v. Connell's Adm., 3 Dana, 533. Robson v. Doe, 2 Blackf. 308. In Virginia it has been held inadmissible in criminal cases. Finn v. The Commonwealth, 4 Rand. 501.

In a criminal case the public prosecutor will not be allowed to use the testimony given by a witness at a former trial of the same indictment, though he be absent from the state. The People v. Newman, 5 Hill, 295.

So the evidence is admissible where the witness has become unable to speak from paralysis. Rogers v. Raborg, 2 Gill & Johns. 54. But it is not enough that he has forgotten. Drayton v. Well, 1 Nott & M'C. 409. Nor that he has become interested. Chess v. Chess, 17 Serg. & R. 409. Irwin v. Reed et al. 4 Yeates, 512. Nor that he has been convicted of an infamous crime. Le Baron v. Crombie, 14 Mass. 234. Nor it seems that he is not to be found. Wilbur v. Selden, 6 Cow. 162. Arderry v. The Commonwealth, 3 J. J. Marsh. 185. Contra, Magill v. Cauffman, 4 Serg. & R. 319. Rogers v. Raborg, 3 Gill & Johns. 54. Pettibone v. Derringer, 4 Wash. C. C. Rep. 215. Read v. Bertrand, Id. 538.

The very words of the witness must be sworn to. U. States v. Wood, 3 Wash. C. C. Rep. 440. Wilbur v. Selden, 6 Cow. 162. Ballenger v. Barnes, 3 Devereux, 460. Bowie v. O'Neal, et al. 5 Har. & Johns. 266. But contra, Caton et al. v. Lennox et al., 5 Rand. 31. Cornell v. Green, 10 Serg. & R. 14. The whole examination must be given. Wolf v. Wyeth, 11 Serg. & R. 149. See the following cases as to notes of counsel; Lightner v. Wilie, 4 Serg. &. R. 203. Watson v. Gilday, 11 Id. 337. Chess v. Chess, 17 Id. 409. Miles v. O'Hara, 4 Binn. 110. Foster v. Shaw, 7 Serg. & R. 156. The postea of the former trial must be produced. Beales v. Guernsey, 8 Johns. 446. It is error to prove what a deceased witness testified to upon a former trial between the same parties, without proving the fact of such trial by the record; but the error is cured if such record proof be produced before the close of the evidence. Weart v. Hoagland, Adm. 2 Zabriskie, 517.

When a witness, who has once testified upon the trial of a case has deceased, his testimony may be used upon a subsequent trial of the same case, provided the substance of what is testified both in chief and on cross-examination can be proved in the very words used by him. Marsh v. Jones, 21 Vermont, 378.

It is not enough that the former trial was upon the same general subject, the point in issue must be the same. Melvin v. Whiting, 7 Pick, 79. So evidence of what a deceased witness swore on a question of bail, is inadmissible on the trial of the cause. Jackson et al. v. Winchester, 4 Dall. 206. See Jessup v. Cook, 1 Halst. 434.

Where a person is offered as a witness to prove the testimony of a deceased witness on a former trial of the same cause, he cannot be permitted to testify, if he state that he can give only the substance of such testimony, but not the language of the witness. Warren v. Nicholls, 6 Metcalf, 261.

Where in the trial of a cause, it is necessary and proper to prove what a deceased witness swore on a former trial, between the same parties, where the issue and matter in controversy is the same; it is sufficient for a living witness, who is called to testify, to prove that the deceased witness swore to certain facts, and he need not prove the precise words employed by such deceased witness. Garratt v. Johnson, 11 Gill & Johns. 173.

Where the merits were tried on a former suit, but the verdict was against the plaintiff solely on the ground of his incapacity to recover for want of interest in the note sued upon, the evidence given by witnesses then examined is admissible, if they are out of the state. Hacker v. Jamison, 2 Watts & Serg. 438. The absence of a witness from the state, so far as it affects the admissibility of secondary evidence, has the same effect as his death. Alter v. Borghaus, 8 Watts, 77.

If a witness be out of the state, notes of his testimony, proved to have been correctly taken upon a former trial of the cause may be read in evidence. But if it appear that the witness absented himself from that trial before he was fully examined, his testimony given cannot be read in evidence. Noble v. M'Clintock, 6 Watts & Serg. 58.

A party is not entitled to the benefit of the testimony of a witness who dies after he has been examined and testified, and before the opposite party has had an opportunity to avail himself of a cross-examination. Kissam v. Forrest, 25 Wend. 651.

It has been deemed proper to present the foregoing abstract of the cases upon this head, although in the only states in which the question has been raised, it has been held that the testimony of a witness given upon a former trial is inadmissible in criminal cases.