EXPRESSIONS OF BODILY OR MENTAL FEELINGS.

373

of insurance on the life of his wife, where the question related to the state of her health at the time when the policy was effected, a witness for the defendants was allowed to state the result of a conversation she had had with the deceased, shortly after the surgeon who was consulted in effecting the insurance had given a certificate of her health, in which conversation the deceased had expressed an apprehension that she should only live a few days, and had added that she had not been well from a time preceding her being examined by the surgeon. The Court held that the conversation was admissible, notwithstanding the general rule which excludes the declaration of a wife as against her husband; and the more especially so, as the surgeon had been first called by the plaintiff, and had admitted that he had formed his opinion respecting her health, principally from the satisfactory answers she had given to his inquiries (h).

§ 393. So, on a trial for murder by poisoning, statements made by the deceased in conversation shortly before he took the poison, have been received in evidence for the purpose of proving the state of his health at that time (i); and, on the same ground, it has frequently been held, in actions or indictments for assault, that what a man has said about himself to his surgeon was evidence to show what he suffered by reason of the assault (j). So, on an indictment for highway robbery, the fact that the prosecutor, a few hours after the attack made upon him, complained to a constable that he had been robbed, will, perhaps, be admissible; though the witness cannot be farther asked whether, on making the complaint, the prosecutor mentioned the name of the prisoner (k). It would seem, also, that, in prosecutions for rape, proof that the woman, shortly after the injury, complained that a dreadful outrage had been perpetrated upon her, would, in the event of her death, be receivable as independent evidence (1); and if the prosecutrix were called

(h) Aveson v. Lord Kinnaird, 6 East, 188.

(2) R. v. Johnson, 2 C. & Kir. 354, per Alderson, B.

(j) Aveson v. Lord Kinnaird, 6 East, 198, per Lawrence, J.; R. v. Guttridge, 9 C. & P. 472, per Parke, B.

(k) R. v. Wink, 6 C. & P. 397; commented upon by Cresswell, J., in R. v. Osborne, C. & Marsh. 624.

(1) R. v. Megson, 9 C. & P. 420, per Rolfe, B.; R. v. Osborne, C. & Marsh.

374

MUTUAL DEPORTMENT OF HUSBAND AND WIFE.

as a witness, such complaints would à fortiori be admissible as tending to confirm her credit (m). In no case, however, can the particulars of the complaint be disclosed by witnesses for the Crown, either as original, or as confirmatory evidence, but the details of the statement can only be elicited by the prisoner's counsel on cross-examination (n). It is difficult to see upon what principle this rule is founded, where the complaint is offered as confirmatory evidence; because, if witnesses were permitted to relate all that the prosecutrix had said in making her original complaint, such evidence would furnish the best test of the accuracy of her recollection, when she was sworn to describe the same circumstances at the trial (o).

§ 394. Again, in actions for criminal conversation, if it be material, with the view of increasing or diminishing the damages, to ascertain upon what terms the husband and wife lived together before the seduction, their language and deportment towards each other, their correspondence together, and their conversations and correspondence with third persons, are original evidence (p). But to guard against the abuse of this rule, it must be proved by some evidence independent of the date appearing on the face of the letters (q), that they were written by the wife to the husband prior

624, per Cresswell, J. In R. v. Guttridge, 9 C. & P. 471, where a prosecutrix for a rape was absent from the trial, Parke, B., rejected proof of her complaint, apparently on the ground that it was only confirmatory evidence.

(m) R. v. Megson, 9 C. & P. 420; R. v. Clarke, 2 Stark. R. 241; 1 East, P.C. 444, 445; 1 Hale, 633.

(n) R. v. Walker, 2 M. & Rob. 212, per Parke, B.; R. v. Osborne, C. & Marsh. 622; R. v. Quigley, Ir. Cir. R. 677, per Torrens, J.

(0) See R. v. Walker, 2 M. & Rob. 212.

(p) Trelawney v. Coleman, 2 Stark. R. 191; 1 B. & A. 90, S. C.; Willis v. Bernard, 8 Bing. 376; Winter v. Wroot, 1 M. & Rob. 404, per Lord Lyndhurst ; Gilchrist v. Bale, 8 Watts, 355.

(9) Trelawney v. Coleman, 2 Stark. R. 193, per Holroyd, J.; Houliston v. Smyth, 2 C. & P. 24, per Best, C. J. This last case was an action for board and lodging supplied to a wife, while living separate from her husband, in consequence of his cruelty; and letters, purporting to be written by the wife, were tendered by the husband to rebut this charge, but were rejected, on the ground that no proof was given, beyond their date, of the time when they were sent. See ante, § 110, where this exception to the general presumption respecting dates is accidentally omitted.

RES GESTE ADMISSIBLE.

375

to any suspicion of misconduct on her part, and when, consequently, no grounds existed for imputing collusion (o). It is not, however, necessary, in the absence of other suspicious circumstances, to explain the cause of the husband and wife living apart at the time when the letters were written (p), though, of course, it is expedient that such explanation should, if possible, be given.

§ 395. There are other declarations and acts, which are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances, so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known, in order to a right understanding of its nature. These surrounding circumstances may always be shown to the jury along with the principal fact, provided they constitute parts of what are termed the res gesta; and whether they do so or not must in each particular case be determined by the judge in the exercise of his sound discretion, according to the degree of relationship which they bear to that fact (9). Thus, on the trial of Lord George Gordon for treason, the cry of the mob, who accompanied the prisoner on his enterprise, was received in evidence, as forming part of the res gestæ, and showing the character of the principal fact (r). So, on an indictment for manslaughter, a statement, made by the deceased immediately after he was knocked down, as to how the accident happened, has been held admissible (s); and similar evidence has been received by Lord Holt, in an action brought by a husband and wife against a defendant for wounding the wife (t). So, also, where a person enters upon land in order to

(0) Edwards v. Crock, 4 Esp. 39, per Lord Kenyon; Trelawney v. Coleman, 1 B. & A. 90; Wilton v. Webster, 7 C. & P. 198, per Coleridge, J.

(p) Trelawney v. Coleman, 2 Stark. R. 191; 1 B. & A. 90, S. C.

(2) Per Park, J., in Rawson v. Haigh, 2 Bing. 104; Ridley v. Gyde, 9 Bing. 349, 352; Pool v. Bridges, 4 Pick. 379; Allen v. Duncan, 11 Pick. 309. (r) 21 How. St. Tr. 514, 529.

(s) R. v. Foster, 6 C. & P. 325, per Park and Patteson, Js., and Gurney, B. (t) Thompson . Trevanion, Skin. 402.

376

DOCTRINE OF RES GESTÆ.

take advantage of a forfeiture, to foreclose a mortgage, to defeat a disseisin (u), or the like; or changes his actual residence, or domicil, or is upon a journey, or leaves his home, or returns thither, or remains abroad, or secretes himself; or, in fine, does any other act, material to be understood; his declarations made at the time of the transaction, and expressive of its character, motive, or object, are regarded as "verbal acts, indicating a present purpose and intention," and are therefore admitted in proof, like any other material facts (v). So, upon an inquiry as to the state of mind, sentiments, or dispositions of a person at any particular period, his contemporaneous declarations are admissible as parts of the res gestæ (w). Again, in a suit for enticing away a servant, his statement at the time of leaving his master will be received, as tending to show the motive of his departure (x); and where an action of trover was brought against the assignees of a bankrupt, and it appeared that the plaintiff, at the recommendation of the bankrupt, had sent some goods to a dyer, and had told him that the bankrupt would call and give directions about them, it was held that these directions should have been submitted to the jury on behalf of the assignees, as affording some evidence of a dealing with the goods, if not of the consent of the true owner to such dealing (y).

5 396. So extensive is this rule in its operation, that to a certain degree it even overrides the general provision of law, which precludes a party's declarations from being evidence for himself; and therefore, in an action for falsely representing the solvency of a stranger, whereby the plaintiffs were induced to trust him with goods, statements by them at the time when the goods were sup

(u) Co. Lit. 49 b, 245 b; Robinson v. Swett, 3 Greenl. 316; 3 Bl. Com. 174, 175.

(v) Bateman v. Bailey, 5 T. R. 512, and the observations of Mr. Evans upon it, in 2 Poth. Obl. App. No. xvi., § 11; Rawson v. Haigh, 2 Bing. 99; 9 Moore, 217, S. C.; Vacher v. Cocks, M. & M. 353, per Lord Tenterden; Smith v. Cramer, 1 Bing. N. C. 585; Doe v. Arkwright, 5 C. & P. 575, per Parke, B.; Gorham v. Canton, 5 Greenl. 266; Thorndike v. City of Boston, 1 Metc. 242. (w) Barthelemy v. The People, &c., 2 Hill, N. Y. Rep. 248, 257. (x) Hadley v. Carter, 8 N. Hamps. 40.

(y) Sharp v. Newsholme, 5 Bing. N. C. 713.

DOCTRINE OF RES GESTE.

377

plied, that they trusted him in consequence of the representation, were received as evidence on their behalf (z); and where a bailee was sued for loss by negligence, his declarations, contemporaneous with the loss, have been held in America to be admissible in his favour, as tending to show the nature of the loss (a). In Lord George Gordon's trial, his counsel strove to carry this doctrine one step further; and witnesses having been called by the Crown to speak to a meeting that was held on the 29th of May, and to what fell from the defendant on that occasion, one of them was asked on cross-examination, what Lord George had said relative to the meeting on the preceding night, the object being to show thereby that the defendant's motives in convening and attending it were not criminal. The Court, however, held, that though the witness might be questioned as to the whole conversation that passed at the meeting, the private declaration of the defendant, whether subsequent or precedent to that meeting, could not be given in evidence as explanatory of his intentions or conduct (b).

§ 397. In the practical application of this rule, two points deserve an especial attention. The first is that declarations, though admissible as evidence of the declarant's knowledge or belief of the facts to which they relate, and of his intentions respecting them, are no proof of the facts themselves; and therefore, if it be necessary to show the existence of such facts, proof aliunde must be laid before the jury; and it seems that, in strict practice, this proof should be given in the first instance, before the Court be called upon to receive evidence of the declarations. For instance, the fact of insolvency must be established, before statements of the insolvent will be admitted to show that he was aware of his embarrassed circumstances (c). Sometimes, under the law relating to bankrupts, the truth of the facts need not be proved, but it will suffice to show the bankrupt's belief. Thus, if the act of bankruptcy relied upon be an absenting with intent to delay

(*) Fellowes v. Williamson, M. & M. 306, per Lord Tenterden.

(a) Story on Bailm. § 339; citing Tompkins v. Saltmarsh, 14 Serg. & R. 275; Beardslee v. Richardson, 11 Wend. 25. (b) 21 How. St. Tr. 542, 543.

(c) Thomas v. Connell, 4 M. & W. 267, 269, 270; Craven v. Halliley, cited id. 270, per Parke, B.; Vacher v. Cocks, M. & M. 353.