Definition of hearsay evidence.

Reasons for the exclusion of hearsay evidence.

Exceptions

that a felony was committed of these goods. 2. That a person should never be convicted of murder, or manslaughter, unless the fact were proved to be done, or at least the body found dead.1

SECTION III.

OF HEARSAY EVIDENCE.

The general rule is, that hearsay evidence of a fact is not admissible.

The term hearsay is used with reference to what is done or written, as well as to what is spoken; and, in its legal sense, it denotes that kind of evidence 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.

That this species of evidence is not given upon oath, that it cannot be tested by cross-examination, and that it supposes some better testimony which might be adduced in the particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised with impunity under its cover, combine to support the rule that hearsay evidence is inadmissible.2

There are, however, certain important exceptions, of exclusion, which it will be the object of this section to point

to the rule

out, where hearsay evidence is admissible, because either the objection does not apply, or from the necessity of the case, the rule is relaxed.

When

66

hearsay" part of the transaction.

accompany

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.' Thus, in Lord George Gordon's case, on a prosecution for high treason, it was held that the cry of the mob might be received in evidence, as part of the transaction; and, generally speaking, declarations accompanying acts Declarations are admissible in evidence, as showing the nature, ing acts. character, and object of such acts.3 Thus, upon an indictment for manslaughter in killing a party by driving a cabriolet over him, it has been held, that a statement made by the deceased immediately after the accident, as to the cause of the accident, was admissible. So it is in every day's experience in actions of assault, that what a man has said himself to his surgeon is evidence to show what he suffered by the assault. Inquiries of patients by medical men, with the answers to them, are evidence of the state of health of the patients at the time;" and what were the symptoms, what the conduct of the parties themselves at the time, are always receivable in evidence upon such inquiries, and must be resorted to from the very nature of the thing. So, on a prosecution for robbery, it

1 2 Russ. 750.

2 21 How. Stat. Trial, 535.

3 2 Russ. 750.

R. v. Foster, 6 C. & P. 325.

5 Aveson v. Ld. Kinnaird, 6 East, 193.

Testimony

of deceased witness.

Dying declarations.

has been held that the fact of the party robbed making a complaint to a constable shortly after the robbery, and mentioning the name of the person as the name of one of the persons who had robbed him, is admissible. So, on a prosecution for rape, it has been held that proof may be given that the woman made a complaint recently after the injury.'

If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness given upon oath at the former trial is admissible on the subsequent trial, and may be proved by one who heard him give evidence.2

Besides the usual evidence of guilt in general in cases of felony, there is one kind of evidence peculiar to the case of homicide, which is the declaration of the deceased after the mortal blow as to the fact itself, and the party by whom it was committed. The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope in this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. It is therefore evident that declarations, though proved to have been made by a person in a dying

1 2 Russ. 751. R. v. Megson, 9 C. & P. 420 ; R. v. Walker, M. & R. 212. 2 2 Russ. 752.

3

2

1

state, are not admissible, unless it also appears that they were made under a sense of impending death; and the court must be satisfied that at the time that the deceased made the statement he was under the impression that he could not recover; even though he did not actually express any apprehension of danger; for his consciousness of approaching death may be inferred from the nature of the wound, the state of illness, or other circumstances of the case. The fact that a man has a possible hope of recovery, is not sufficient to exclude his declaration; for probably every dying man has such a hope: if a man is in such a state as to have no reasonable hope, and such a fear of impending death, as not to wish to go out of the world with a lie in his mouth, his declaration is admissible. The length of time which elapsed between the declaration and the death of the declarant, furnishes no rule for the admission or rejection of the evidence; for it is the impression of almost immediate dissolution, and not the rapid succession of death in point of fact, that renders the testimony admissible. But these declarations are only admissible where the death of the deceased is the subject of the charge, and the cause of the death the subject of the dying declaration."

4

The dying declarations of the deceased are not Dying

12 Russ. 752.

2 R. v. Reany & another, C. C. R. 26 L. J. M. 43.

3 R. V.

Dingler, 2 Leach, 61.

4 R. v. Dredge & others, Wilts Assizes, 1861: per Martin,

B., MS.

5 R. v. Mead, 2 B. & C. 605; R. v. Hind, C. C. R. 29 L. J.

M. 147.

declarations

or as well

as against a prisoner.

admissible only admissible against a prisoner, but also in his favor; and as the declarations of a dying man are admitted on the supposition that in his awful situation, on the confines of a future world, he had no motives to misrepresent, but, on the contrary, the strongest motives to speak without disguise, and without malice, it necessarily follows that the party against whom they are produced in evidence may enter into particulars of his state of mind and of his behaviour in his last moments, or may be allowed to show that the deceased was not of such a character as was likely to be impressed by a religious sense of his approaching dissolution.'

Public rights.

Declarations of deceased persons against their own inter

est.

Declarations of deceased

persons in the ordinary course of business.

Hearsay evidence is also admissible for the purpose of proving public rights and rights in the nature of public rights.

Declarations or statements made by deceased persons, where they appear to be against their own interest, have in many cases been admitted; as entries in their books charging themselves with the receipt of money on account of a third person, or acknowledging the payment of money due to themselves.

Declarations of deceased persons are admissible, even though not made against their interest, provided that in addition to a peculiar knowledge of the facts and the absence of all interest to prevent them, the declarations appear to have been made in the ordinary course of official, professional, or other business or duty, and to have been immediately connected with the transaction, or discharging such

12 Russ. 764.