CHAPTER XII. PAROL EVIDENCE. § 76. Its Extended Relations to Criminal Cases Illustrated. 78. Must in all Instances be Direct. 79. Competent in Cases of Lost Instruments. $76. Its Extended Relations to Criminal Cases Illustrated. -The extended treatment accorded this subject, of best, secondary and parol evidence, in volume 1, of Rice on Civil Evidence, is sufficient warranty for the extreme brevity of the treatment here. A reduplication of the views there expressed, is quite impossible through considerations of space alone, and it is doubtful if the author could improve the exposition there given, within the same limits. As regards the topic of parol evidence, its obvious implications with nearly every caption of this volume, are sufficiently suggestive to prevent any attempt to minimize the subject by circumscribing the statement of its applications to the few paragraphs that usually form the text of a chapter. Certainly, when we consider that parol or oral evidence is competent to prove any fact whatever (Stephen, Dig. Ev. § 61) it would seem permissible under the peculiar circumstances of the case, to treat the topic under the various sub-headings to which it naturally belongs, and to which the practitioner would naturally refer, rather than attempt the colligation of its myriad applications, for the purpose merely of scattering them again throughout the text of the entire volume. As illustrative of our position, parol evidence naturally associates with (1) the examination of witnesses; (2) the impeachment of witnesses; (3) proof of handwriting; (4) relevancy; (5) res gesta; (6) expert and opinion evidence, and with defensive and inculpatory proof in all of its endless diversities. Its competency under nearly every branch of our subject is avowedly or by implication admitted by jurists and textwriters indiscriminately and with the aid of an exceptional index the practitioner can readily turn to the minutest detail of the subject or to any sub-heading and find the affinities of this particular branch of the science, elaborated and explained. This will sufficiently account for the absence of an extended chapter dedicated to the needs of the subject. The treatment of parol evidence is synonymous with the treatment of criminal evidence. "Every fact except (speaking generally) the contents of a document must be proved by oral evidence." Indeed a modern writer has recently placed before the profession a work of exceptional merit and rare discrimination, that vindicates the averments of the text. Professor Browne has given the elucidations of this subject in one of the most scholarly and comprehensive legal compositions that have solicited the favorable attention of the bench and bar for many years. I cordially recommend the attentive perusal of his work, as a complete vindication of the views of the present author. 877. Statutory Instances of Its Relevancy.-Returning from this brief digression it may be expedient to illustrate the extreme breadth and ramification of this subject, by a transcript of section 1870, of the California Code of Civil Procedure. While it is not claimed that this statutory regulation has any extra-territorial effect, it is insisted that its wide acceptation as a correct exposé of modern rules admitting this species of evidence, are but one of its many titles to recognition, while it may be profitably added that it recently met with the cordial indorsement of the very able commission, appointed by the legislature of New York to draft and report a code of evidence, with a view to its ultimate enactment as statutory law. Any fragment or brochure in the form of a legal screed, that can meet with the critical approval of such eminent jurists as David Dudley Field, David L. Follett and William Rumsey, is liable to be as nearly perfect as the present writer has any expectation of making an independent statement of his own. This fact is certainly another title to recognition. The section in question relates to facts which may be proved in criminal prosecutions by parol evidence and are tabulated in the following form: 1. The precise fact in dispute; 2. The act, declaration, or omission of a party, as evidence against such party; 3. An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto; 4. The act or declaration, verbal or written, of a deceased person in respect to the relationship, birth, marriage or death of any person related by blood or marriage to such deceased person; the act or declaration of a deceased person done or made against his interest in respect to his real property; and also in criminal actions, the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death; 5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agency, and during its existence. The same rule applies to the act or declaration of joint owner, joint debtor, or other person jointly interested with the party; 6. After proof of a conspiracy, the act or declaration of a conspirator against his co-conspirator, and relating to the conspiracy; 7. Where, also, the declaration, act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission, is evidence, as part of the transaction; 8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter; 9. The opinion of a witness respecting the identity or handwriting of a person, when he has the knowledge of a person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein; 10. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given; 11. Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, and in cases of pedigree and boundary; 12. Usage to explain the true character of an act, contract, or instrument, where such character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation; 13. Monuments and inscriptions in public places, as evidence of common reputation; and entries in family Bibles, or other fam ily books or charts; engravings on rings, family portraits, and the like, as evidence of pedigree; 14. The contents of a writing, when oral evidence thereof is admissible; 15. Any other facts from which the facts are presumed or logically inferable; 16. Such facts as serve to show the credibility of a witness, as explained in section 1847. § 78. Must in all Instances be Direct.-Oral evidence must in all cases be direct. If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who said he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. Stephen, Dig. § 62. § 79. Competent in Cases of Lost Instruments.—If an original writing has been lost, proof of the loss must first be made, before parol evidence can be given of its contents. Upon such proof being made, together with proof of the execution of the writing, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by oral evidence. See Best and Secondary Evidence, ante, chap. 5. The extreme importance of this subject has induced elaborate consideration in 1 Rice, Civil Evidence, chap. 8. The treatment extends beyond 80 sub-divisions of that chapter, and is believed to faithfully reflect the juridical sentiment of this country upon this topic. CHAPTER XIII. RES GESTE. § 80. Statement and Illustration of the Principle. b. Views of Mr. Rapalje. c. The General Rule. 81. What Evidence is Competent in Proof of. 82. Perplexing Nature of the Proof of. b. Michigan Case. c. A New York Case. 66 § 80. Statement and Illustration of the Principle.-There is a principle in the law of evidence which is known as res gesta,;" that is, that the declarations of the individual made at the moment of a particular occurrence, when the circumstances are such that we may assume that his mind is controlled by the event, may be received in evidence, because they are supposed to be expressions involuntarily forced out of him by the particular event, and thus have an element of truthfulness which they might otherwise not have. To make declarations on this ground admissible, they must have not been mere narratives of past occurrences, but must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the acts they were intended to explain; and to so harmonize with them as to constitute a single transaction. The general rule is that declarations, to become a part of the res gestæ, must accompany the act which they are supposed to characterize, and must so harmonize as to be obviously one transaction. See Hanover R. Co. v. Coyle, 55 Pa. 396; Lund v. Tyngsborough, 9 Cush. 36; Com. v. Hackett, 2 Allen, 136. In the case last cited a witness testified that, at the moment the fatal stabs were given, he heard the victim cry out "I am stabbed," |