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cause it is a part of the occurrence which constitutes the riot and tends to show that the conduct of the defendant was riotous and violent. Gallaher v. State, 101 Ind. 411.

§ 82. Perplexing Nature of the Proof of. In a recent New Jersey case, Chief Justice Beasley, in referring to this subject, says: "I think I may safely say that there are few problems involved in the law of evidence more unsolved than what things are to be embraced in those occurrences that are designated in the law as the res gesta. The adjudications on the subject, more especially those in this country, are perplexingly variant and discordant. I can readily find judicial rulings by force of which this testimony would be excluded; but I can as readily find other rulings of equal weight, that would sanction its admission. This result has grown out of the difficulty of applying, with anything like precision, general rules to a class of cases of infinite variety. In the well considered case of Lund v. Tyngsborough, 9 Cush. 42, it is said: The res gesta are different in different cases, and it is, perhaps, not possible to frame any definition which would embrace all the various cases which may arise in practice. It is for the judicial mind to determine upon such principles and tests as are established by the law of evidence, what facts and circumstances in particular cases come within the import of the terms. In some instances, the test indicated will be found in the rule that such declarations are admissible, because they are so connected with an act, itself admissible as part of the res gestæ, as to have become incorporated with it. The declaration and the act must make up one transaction. The theory justifying this course is that, when such declarations are thus coupled with a probable act they receive confirmation from it; but if they stand alone, without such support, they depend altogether for their credence on the veracity of the utterer, and thus conditioned, they are pure hearsay, and inadmissible.' Alluding to the rule that excludes hearsay, Mr. Starkie, 1 Stark. Ev. p. 65, says: "The principle does not extend to the exclusion of any of what may be termed real or natural facts and circumstance in any way connected with the transaction, and from which any inference as to the truth of the disputed fact can reasonably be made."" Hunter v. State, 40 N. J. L. 495.

§ 83. Three Leading Cases Examined.

a. A Pennsylvania Case.—A recent Pennsylvania case which

came before the supreme court on appeal will best illustrate the present attitude of the American judiciary upon this very important phase of evidentiary law. The extract which is here reproduced will disclose its relations with our subject and sustain the positions of the text. The court says:

"The principal witness for the commonwealth testified to the prisoner's participation in the homicide, and the circumstances connected therewith. Among other things, she stated that immediately after the murder was committed and the money divided, one of the parties concerned therein scraped some of the blood from the floor into a piece of red earthen crock, emptied it at the east end of the house, so that the people would think the Kintzlers were killed outside and would not look for their remains in the house, and then threw the crock over the top of the appletree into the adjoining woods. It was proved by several witnesses that blood was found next morning where Mary Hartley said it had been emptied, and, in further corroboration of her testimony, the witness was permitted to testify, under exception, that in August, 1880, he, in company with other persons, made search in the edge of the woods, where Mary Hartley said the piece of crock was thrown, and there, among the leaves and stones, found several pieces; in the language of the witness, 'quite a number among the rotten leaves and dirt. There are small roots grown over parts of the pieces, wire roots.' He also testified that he tried some of the pieces, and they fitted together, thus indicating that they were parts of a larger piece, corresponding in kind with that alleged to have been thrown away on the night of the murder. This may appear to be a trifling circumstance, but in view of the fact that throughout the trial, the credibility of Mary Hartley was assailed as unworthy of belief, on the ground that, according to her own showing, she was an accomplice, it was not improper to corroborate her statement as to the res gesta. She had been corroborated as to other circumstances, but it was urged, as a special objection to the admission of the testimony complained of, that so long a time had elapsed before the pieces of crock were found. In reply to this, the learned judge properly remarked that he could not say, 'as matter of law, that it was too remote to be received in evidence.' The fact that the place where the pieces of crock were found was secluded, lessened the probability of their having been placed there by any other agency than that

testified to by Mary Hartley; and the further fact that they were covered with leaf mould, and wire roots had grown over them, indicated that they had probably lain there from the time the murder was committed. In connection with other facts and circumstances in the case, we cannot say it was improper to receive and submit the testimony to the jury. As corroborative evidence, it may have been very slight, but still it was not incompetent." Moyer v. Com. 98 Pa. 338.

b. A Michigan Case.-The prosecution can never, in a criminal case, properly claim a conviction upon evidence which, expressly or by implication, shows but a part of the res gesta, or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. This would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. It is the res gesta, or whole transaction, the burden of proving which rests upon the prosecution, so far at least as the evidence is attainable. It is that which constitutes the prosecutor's case, and as to which the defendant has the right of cross-examination; it is that, which the jury are entitled to have before them, and, "until this is shown, it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn."

The prosecutor in a criminal case, is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then, to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence, that there may be any other part of the transaction undisclosed, especially if it appears to the court that the evidence of the other portion is attainable. The only legitimate object of the prosecution is, "to show the whole transaction, as it was, whether its tendency be to establish guilt or innocence." The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innoHis object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained is unjust and dangerous to the whole community. And, according to the well established rules of the

cent.

English courts, all the witnesses present at the transaction, should be called by the prosecution, before the prisoner is put to his defense, if such witnesses be present, or clearly attainable. See Maher v. People, 10 Mich. 225, 81 Am. Dec. 781. The English rule goes so far as to require the prosecutor to produce all present at the transaction, though they may be the near relatives of the prisoner. See Reg. v. Chapman, 8 Car. & P. 559; Reg. v. Orchard, 8 Car. & P. 565, note; Roscoe, Crim. Ev. 164. Doubtless, where the number present has been very great, the production of a part of them might be dispensed with, after so many had been sworn as to lead to the inference that the rest would be merely cumulative, and where there is no ground to suspect an intent to conceal a part of the transaction.

c. A New York Case.-In a recent criminal case decided by the New York court of appeals, the late Chief Justice Folger, writing for affirmance and voicing the prevailing opinion of that distinguished court, took occasion to commit the appellate bench to some very radical conclusions upon this subject of res gestœ. The case arose under an indictment for grand larceny, and the defendant in error offered to prove what was said as to the mode of obtaining the property, by the men of whom he alleged that he had bought it at the time of the alleged purchase. His honor says:

"It was doubtless hearsay, and was not competent testimony to prove that the alleged vendors came by the property in the mode asserted. But as it was competent for the defendant to prove the acts by which the goods came into his possession, if he was able to, it was competent to prove all pertinent sayings and doings that then were made and done, as relevant upon the issue of guilty knowledge. It was competent. It was for the jury still to say whether it was of weight in showing the prisoner innocent in the transaction, if they found that the transaction took place as he testified. Rex v. Whitehead, 1 Car. & P. 67; Powell v. Harper, 5 Car. & P. 590; Hayslip v. Gymer, 1 Ad. & El. 162. The cases to the contrary, cited from 3 Park. Crim. Rep., People v. Rando, p. 335, and Wills v. People, p. 473, were doubtingly decided. On principle, such evidence must be competent. It is the rule, generally speaking, that declarations accompanying acts are admissible in evidence as showing the nature, character and object of such acts. 1 Stark. Ev. 51, 87. The direct proof of

knowledge of the larceny, is not needed to convict of receiving stolen goods with guilty knowledge. That knowledge may be gathered from the circumstances of the case, of which one is the buying the goods at an under valuation. 1 Halstead, Dig. Ev. 619; 2 East, P. C. chap. 16, p. 765, § 153. If the circumstances of the case and such buying are proof tending to show guilty knowledge, then whatever that is relevant, that was said at the time of the buying, is a part of the res gesta, and competent to explain the act. And see Reg. v. Wood, 1 Fost. & F. 497; 1 Phil. Ev. (7th ed.) 234. Of course, the jury are not bound to believe either that the statements, if made, were true, or that the prisoner believed them to be true and was moved by them, or that they were in fact made to him. Like all other testimony, it is to be given to them for what it is worth, and it is for them to give to it the value it deserves. People v. Dowling, 84 N. Y. 478.

The defendant is entitled to the admission of evidence of a conversation tending to exculpate him and forming part of the res gesta. People v. DeGraff, 6 N. Y. S. R. 412.

The rules expressive of the prevailing views upon this subject of res gesta, are fully stated in 1 Rice, Civil Evidence, section 212, chapter 10, p. 375. If desirable to pursue the topic in detail, the practitioner is referred to that part of this undertaking.

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