UNIVERSITY
OF CALIFORNIA
LOS ANGELES
HAND BOOK
ON THE
LAW OF EVIDENCE
A CONCISE STATEMENT OF THE RULES
IN CIVIL AND CRIMINAL TRIALS
i
BASED UPON
THE MODERN LAW OF EVIDENCE
5 VOLUMES
BY CHARLES FREDERIC CHAMBERLAYNE
*\
EDITOR OF AMERICAN EDITION OF BEST S PRINCIPLES OF THE LAW OF EVIDENCE,
AMERICAN EDITION OF TAYLOR ON EVIDENCE
EDITED BY
ARTHUR W. BLAKEMORE
Of the Boston Bar, Editor of Blakemore and Bancroft
on Inheritance Taxes, etc.
AND
DEWITT C. MOORE
Author of "The Law of Carriers," "Fraudulent Conveyances,"
and Editor of "Wood on Limitations," 4th Edition
ALBANY, N. Y.
MATTHEW BENDER & COMPANY
INCORPORATED
1919
v
r
COPTHIOHT, 1919
BT MATTHEW BENDER & COMPANY
INCORPORATED
8
PREFACE
This Handbook on the Law of Evidence is designed to present to the Bench
and the Bar in compact form the important rules and principles of evidence
as applied in both civil and criminal trials and proceedings, with a treatment
in clear and succinct style of all the leading questions involved in a considera-
tion of the subject.
.The work is based on Mr. Chamberlayne's exhaustive and comprehensive
work, " The Modern Law of Evidence," which has been published in five large
volumes.
The editors have attempted to include all topics and propositions covered
by that great work.
Mr. Chamberlayne's text, like that of all comprehensive treatises of law
subjects, contains much that is technical, historical and explanatory, with a
great number of pertinent illustrations showing the application of the prin-
ciples discussed. Much of this material has been eliminated in preparing
this handbook, to the end that the principles that control the disposition of a
concrete question may be readily available.
It is obvious that the active practitioner is required very frequently to refer
quickly, without loss of time, to definite, clearly expressed rules of evidence.
For this purpose he needs the rules themselves with citation of leading author-
ities, but without elaborate discussion or extended illustrative matter. Multi-
plication of cited precedents is not always essential. It is confidently expected
that this handbook will prove of great value to the profession as a practical
manual for constant use in trials of litigated cases and in the preparation for
such trials.
In carrying out the intention of basing this handbook upon Chamberlayne's
elaborate work, references are made under each section to the corresponding
sections of such work. By referring to the sections of Chamberlayne's Avork
thus cited, a discussion and full treatment of all the principles laid down in
the handbook will be found.
Many important cases which have been decided by the courts since the pub-
lication of Chamberlayne's Modern Law of Evidence have been inserted in
their proper places in this handbook, and much new matter covering questions
which are now of present importance, but which were not of so much impor-
tance when Chamberlayne's work was published, has been added.
The editorial work was partially done by the late DeWitt C. Moore of the
New York Bar. Upon his death the work was revised and completed by
Arthur W. Blakemore, Esq., of the Boston Bar.
Februarv. 1919.
CONTENTS
CHAPTER I.
Law of Evidence. SECTION
Definitions in general 1
J.aw of evidence 2
Scope of the law of evidence 3
Evidence defined 4
Extra judicial evidence 5
Judicial evidence 6
' Proof " and ' evidence " -. 7
" Testimony ' ' and " evidence " 8
Subdivisions of evidence 9
admissible evidence 10
best and secondary evidence _ 11
competent evidence 12
conclusive evidence 13
direct and circumstantial evidence 14
material evidence 15
oral and documentary evidence: document defined 16
difficulty of removal 17
symbolical representations of thought 18
proper scope of documentary evidence 19
positive and negative evidence 20
real and personal evidence 21
Secondary meanings of the term ' evidence " 22
CHAPTER II.
Facts.
Fact defined 23
Matter of fact 24
Matter of law 25
Matter of opinion 26
Classification of facts : physical or psychological 27
simple and compound 28
component facts 29
component and probative 30
res yestw and constituent 31
compound, component and constituent 32
positive and negative 33
principal and probative 34
states and events 35
Relevancy . 36
Constitutionality of statute declaring effect of certain facts 37
CHAPTER III.
Law and Fact.
Law defined 38
A divided tribunal 39
ix
CONTENTS. x
SECTION
Who should apply the law 40
judge authoritatively announces rule of law 41
jury ascertain constituent facts 42
application of law to constituent facts 43
Coke's maxim considered 44
General verdicts 45
More rational expedients 4G
agreed statements of fact 47
advantages to be expected 48
special verdicts ; statutory 49
special interrogatories ; common law 50
special interrogatories ; statutory 51
administration by the court 52
Matters of argument, opinion or judgment 53
Matter of la\v 54
Meaning of words .' 55
The use of reason 56
Construction of documents 57
Construction of oral contracts 58
Demurrers to evidence 59
Certainty of law : rulings on facts ^ 60
Trial by inspection 61
CHAPTER IV.
Court and Jury: Court.
Court and jury : court 62
Function* of the judicial office 63
judicial 64
procedure denned 65
rights relating to matters of procedure 66
substantive law may prescribe the remedy 67
verbal metabolism 68
distinction not important 69
promote justice 70
apply practice 71
administrative 72
field of administration 73
reason characteristic of administration 74
discretion 75
range of application ; abscence of judge from courtroom 76
adjournments 77
compelling consistency in parties 78
exclusion of persons from the courtroom 79
grounds for admitting public 80
persistence of conditions 81
furnish proof or contradiction 82
grounds for exclusion 83
adjournments to avoid unwise publicity . . . 84
separation of witnesses 85
order not matter of right 86
vhat constitutes violation of order 87
time of motion for order 88
by whom motion is. made 89
whom the order applies 90
xi CONTENTS.
Functions of the judicial office Continued,
administrative Continued.
separation of witnesses Continued. SECTION
enforcement of the order 91
consequences of disobedience 92
party's relation to violation 93
proceedings against offending witness 94
swearing of witnesses 95
method of inquiry 96
children as witnesses ; insane persons 97
form of oath 98
executi ve 99
require order and decorum 100
compel obedience to directions; administrative orders 101
attorneys 102
others subject to directions 103
protect the course of justice 104
attorneys 105
court officers 106
newspapers; embarrassing the administration of justice 107
service of process 108
witnesses .' 109
enforcement by contempt proceedings 110
civil and criminal cases Ill
direct and constructive 112
constructive presence of judge 113
Judge sitting as a jury ; 114
rulings of law 115
administrative questions x . 116
Evidence as a matter of administration 1 17
Stare decisis as applied to <the law of evidence 118
Recapitulation 4 119
CHAPTER V.
Court and Jury: Jury.
The growth of the jury system 120
Function of the jury ; jury confined to the issue 121
Comment on facts 122
English and federal courts 123
the American minority 124
American majority 125
assumption of facts 126
refusal of assumptive instructions 127
uncontroverted facts 128
weight and credibility 129
when comment is permitted 130
customary cautions 131
Subordination of judge to jury 132
Granting of new trials: verdicts against reason or weight of evidence 133
action of appellate courts : palpable confusion 134
technica 1 errors as to evidence 135
substantive law 136
English rule : harmless error 137
American majority 138
federal courts 139
criminal cases '. . 140
CONTENTS. xii
Granting of new trials Continued.
action of appellate courts Continued.
American majority Continued. SECTION
a purely voluntary situation 141
futile legislation 142
technical inerrancy required 143
American minority 144
prejudice from error 145
Taking jury's opinion 146
CHAPTER VI.
Principles of Administration. A. Protect Substantive Rights.
Principles of administration 147
protection of substantive rights 148
right to prove one's case 149
right to use secondary evidence 150
documents 151
probative documents 152
means of communication . . 153
interpreters 154
deaf mutes, etc 155
Scope of right 156
limited to proof of res yestce 157
order of stages 158
right to open and close 159
plaintiff as actor 160
defendant as actor 161
code and common law pleading : admissions 162
proceedings in rem 103
variations in order of evidence 164
evidence in chief 165
actor 166
nonactor 167
order of topics 168
conditional relevancy; bearing apparent 169
bearing not apparent 170
right to test adversary's case 171
cross-examination 172
rebuttal 173
actor 174
use of experts 175
anticipatory rebuttal 176
non-actor 177
subsequent rebuttal 178
right to use of reason 179
should prevent jury from being misled 180
guessing not permitted 181
striking out prejudicial evidence 182
withdrawal of jury 183
preventing irrational verdicts 184
directing verdicts 185
relation to grant of new trial 180
relation to motion in arrest of judgment 187
a matter of law 188
general rules 189
Xlll
CONTENTS.
Principles of administration Continued.
protection of substantive rights Continued,
right to use of reason Continued.
directing verdicts Continued. SECTION
scintilla of evidence not sufficient 190
motion equivalent to a demurrer to evidence 191
direction against the actor
direction in favor of actor
time for making motion
direction on opening
party moving may be required to rest
nominal or actual verdicts
effect of waiver ,.
action of appellate courts
effect of rulings on evidence 200
901
judge sitting as jury
right to judgment of court or jury
performance of functions by judge 2 3
904.
waiver
general right to jury trial; witnesses not permitted to reason 205
a strongly entrenched right 20 *
federal constitution
state constitution 2 ^
scope of common law
judicial powers reserved "**
statutory construction ; criminal cases 211
waiver forbidden
incidental hearings
special proceedings *"
statutory proceedings 2 ^ c
in what courts right can be claimed
who may claim right
reasonable limitations permitted ; demand
minor criminal offences
payment of jury fees 2 -0
restricted appeals
unreasonable limitations unconstitutional
waiver and estoppel 2 - 3
004
right to confrontation
waiver "
CHAPTER VII.
Principles of Administration. B. Furtherance of Justice.
09A
Furtherance of justice
primary evidence required
eradins: of nrimarv evidence
,. 99Q
evidence by perceptions -
written and oral evidence
not a question of probative force
extent of administrative action *-
? OO
necessity for using secondary evidence
orounds of necessitv : witnesses or documents 234
OO K
degrees of secondary evidence
how objection is taken
" best evidence " as a rule of procedure
" best evidence " rule at the present time 238
CONTENTS. xiv
Furtherance of justice Continued.
primary evidence required Continued.
"best evidence" rule at the present time Continued. SECTIO*
present scope of rule 239
a sole survival 240
a vanishing rule 241
hearsay 242
attesting witnesses 243
completeness demanded 244
oral statements; proponent 245
admissions and confessions 246
oral 247
confessions 248
independent relevancy 249
res i/est(F an exception 250
oral statements opponent 251
probative effect 252
right of initiative 253
former evidence 254
independent relevancy 255
documents: proponent; independent relevancy 256
judgment 257
general practice 258
depositions 259
admissions 260
public records 261
executive 262
legislative 263
judicial 264
pleadings at law 265
pleadings in chancery 266
statutory interrogatories 267
judgments 268
verdicts 269
executions 270
wills and probate papers 271 t
private records 272
opponent : independent relevancy 273
incorporation by reference 274
obligation to introduce into evidence resulting from demand and inspection 275
prevent surprise 276
new trial for newly discovered evidence 277
action of appellate courts 278
amendment of pleadings 279
decisions on dilatory pleas ( 280
testimony 281
production of documents 282
time and place of hearing 283
surprise must be prejudicial 284
protection against unfair treatment 285
unfair comment 286
incidental comment permitted 287
unreasonable comment 288
comments on law 289
influence of spectators 290
misquoting evidence 291
xv CONTEXTS.
Furtherance of justice Continued,
prevent surprise Continued.
protection against unfair treatment Continued. SECTION
reprimanding counsel 292
reprimanding a party or his witnesses 293
effect of waiver 294
protect witnesses from annoyance 295
cross-examination 296
a reasonable limitation 297
judge may interrogate witnesses 298
in order to elicit material facts 299
range of inquiry 300
judge may call additional witnesses 301
judge should hold balance of indulgence even 302
judge should require full disclosure 303
expedite trials 304
judge should aim to give certainty to substantive law 305
action of appellate court; judicial function of trial judge: substantive law.... 306
findings of fact 307
facts conditioning admissibility 308
competency of witnesses 309
administrative function of trial judge 310
executive function of trial judge 311
all iutendments made in favor of trial judge 312
powers of an appellate court 313
modification of action 314
CHAPTER VIII.
Judicial Knowledge.
Knowledge 315
Knowledge of law ; in general 316
Common and judicial knowledge 317
Judicial vs personal knowledge ; judge 318
judge as witness 319
jury 320
Scope of judicial knowledge of law 321
Judicial knowledge of common law : national courts 322
state and provincial courts 323
Judicial knowledge of international law ..... 324
Judicial knowledge of law merchant 325
Judicial knowledge of written law ; extension and intension 326
treat ies . 327
national courts 328
state and provincial courts 329
local courts 330
amendment and repeal . . 331
what statutes are public 332
How judicial knowledge of law is acquired 333
Judicial knowledge of the results of law 334
official proceedings 335
executive department : nation 336
state 337
public surveys 338
rules and regulations : nation 339
signatures and seals : national 340
legislative department : general facts 341
CONTENTS. xvi
Judicial knowledge of the results of law Continued. SECTION
judicial department ; general facts 342
attorneys and counsel 343
court records, papers, etc 344
CHAPTER IX.
Knowledge; Common.
Common knowledge 345
administrative advantages 346
What knowledge is common 347
knowledge as affected by jurisdiction ." 348
restricted communities 349
potential knowledge 350
General notoriety; classes of facts so established; res gestce 351
What facts are covered by thr rule 352
nature . 353
science 354
facts of geography 355
facts of human experience 356
standards of reasonable conduct 357
facts of social life 358
facts of history 359
facts of business 360
evidence of skilled witness not required 361
various matters covered , 362
How actual knowledge may be acquired 363
judge may decline to know fact 364
may require aid of parties 365
examination by judge : 366
function of the jury 367
books not evidence 368
standard treatises 369
testimony of skilled witnesses 370
How far knowledge is binding 37 1
matter of fact 372
matter of law 373
Cognizance as affected by action of the parties : waiver 374
CHAPTER X.
Knowledge: Special.
Special knowledge 375
reason for excluding knowledge in general 376
administrative action of judge 377
necessity of relevancy 378
adequate knowledge 370
_ echnical or scientific facts 380
administrative considerations 381
scope 382
properties of matter 383
business affairs 384
various matters 385
interstate, or foreign law 386
maritime affairs 387
nechanic arts 388
i
XV11
CONTENTS.
Technical or scientific facts Continued. SECTION
mining ; natural history 389
professional facts ; medicine 390
railroad facts ; rules 391
CHAPTER XI.
Burden of Proof.
Preliminaries to a trial by jury
Burden of proof has a double meaning
Position of burden of proof; who would fail if no further evidence were introduced.
never shifts t
common law pleading
equity pleading
statutory pleading
actions in rem, etc
criminal cases : burden on prosecution
affirmative defences .
392
393
394
395
396
397
398
399
400
401
CHAPTER XII.
Burden of Evidence.
Burden of evidence
Position of burden of evidence
criminal cases
facts known to adverse party
negative facts
Scope of burden of evidence //
quantum of proof required ; number of witnesses
prima faeie case '.
special inertia of the court; civil cases
documents _. . . .
criminal oases I
Effect of presumptions
CHAPTER XIII.
Presumptions; Inferences of Fact.
Presumptions ; classification of j
Inferences of fact : res i/tso loquitur
inference of continuance
nature of subject matter
legal results
legal status and standing
life
mental conditions
personal or business relations
inferences of regularity; human attributes; physical
mental or moral
business affairs
official business: mail service
rebuttal of inference of receipt from mailing L>g
inference rebuttable
telegrams statutes
Omnia contra spolintorem .on
spoliation a deliberative fact .32
spoliation as an insult to the court .33
fabrication : witnesses I .34
writings
suppression ; witnesses : failure to call
Z6
CONTENTS. xviii
Omnia contra spoliatorem Continued.
suppression Continued. SECTION
failure to testify . . 43(
removal or concealment 437
probative force of inference 438
writings ; destruction 439
failure or refusal to produce 440
refusal to produce on demand 441
mutilation, alteration, etc 442
real evidence 443
CHAPTER XIV.
Presumptions of Law.
Assumptions of procedure 444
Presumptions of law , 445
Presumption of legitimacy marriage 446
proof of access 447
rebuttal of presumption 448
limitation upon scope of evidence 449
inferences of fact 450
presumption of death ; continuance of life 451
an inference of varying probative force 452
adoption of rule in America : . . 453
statutory modifications 454
proof of death by inferences of fact 455
failure to hear 456
subjective facts .- 457
unavailing search 458
computation of the seven year period 459
time of actual death; no presumption of life during seven years 460
presumption rebuttable 461
criminal cases 462
capacity for crime 463
presumption of larceny from recent unexplained possession of stolen goods 464
explanation 405
place and cause of rinding 466
proof of possession 467
presumption of malice in homicide 468
CHAPTER XV.
Pseudo-Presumptions.
Pseudo-presumptions 469
conclusive presumptions 470
scope of presumptions of this class-fictions 471
lost grant 472
presumption of malice in libel 473
death of attesting witness in case of ancient writings 474
consequences of conduct 47-">
good character 476
knowledge of law 477
presumption of innocence 47*
an overstated rule 47')
meaning of phrase 4*0
valueless as affirmative proof 48 i
treatment of prisoners in judicial administration 4*2
weighing the presumption of innocence 43
xix CONTENTS.
Pseudo-presumptions Continued.
presumption of innocence Continued. SECTION
other views 484
presumption of survivorship 485
CHAPTER XVI.
Administrative Assumptions.
, Administrative assumptions 486
presumptions of law contrasted 487
identity of person from similarity of name 488
property from possession 489
regularity 490
order of events 49 1
judicial proceedings 402
public officers 493
relation between foreign and domestic law 494
wrongdoing not assumed 495
Conflict of presumptions: civil cases 496
criminal cases ; knowledge of law 497
presumption of innocence 498
CHAPTER XVII.
Admissions : Judicial.
Admissions defined 499
Probative force , . 500
Formal judicial admissions 501
form of admissions , . 502
pleadings : in same case 503
constituting the issue 504
deliberative facts 505
use as admissions 506
in other cases : formation of issue 507
use as admissions 508
code pleading 509
law and equity 510
equity pleadings answe'r 51 1
state and federal courts 512
superseded or abandoned : evidence rejected 513
stipulations 514
Informal judicial admissions 515
form of admissions: oral : testimony by party 516
writings 517
affidavits 518
answers to interrogatories 519
depositions 520
Judicial admissions ; by whom made ; 52 1
attorneys 522
probative force : same case 523
formal judicial admissions conclusive 524
informal judicial admissions constitute prima facie case 525
CHAPTER XVIII.
Admissions: Extra- Judicial.
Extra-judicial admissions : definition 526
use a general one 527
CONTENTS. xx
SECTION
Conditions of admissibility ; statement must be one of fact 528
statement must be voluntary 529
statement must be certain 530
statement must be complete 531
statement must be relevant 532
Extra- Judicial admissions ; by whom made ; parties 533
parties to the record 534
co-parties ; declarant affected as if sole party 535
co-party not affected 536
nominal parties 537
persons beneficially interested 538
admissions by privies 539
admissions by agents 540
evidence is primary 541
res gestfe in this connection 542
independent relevancy distinguished 543
Form of extra-judicial admissions ; adoption 544
references to another 545
writing , 540
book-entries 547
business documents 548
commercial paper 549
letters 550
obituary notices 551
official papers 552
professional memoranda 553
tax lists 554
temporary or ephemeral forms of writing 555
Transmission by telephone 556
Scope of extra-judicial admissions 557
Probative force of extra-judicial admissions 558
CHAPTER XIX.
Admissions; By Conduct.
Admissions by conduct ; "inconsistent conduct 559
silence 560
failure to object to written statements 561
probative force 562
scop^e of inference ; book entries 5;);;
independent relevancy ........ 5(54
falsehood . 565
silence as proof of acquiescence 566
conditions of admissibility 567
statement must have been understood 568
denial must be natural 569
adequate knowledge 570
party must be physically and mentally capable of reply -. . . 571
probative force and effect 572
Statement and other facts 573
CHAPTER XX.
Offers of Compromise.
)ffers of compromise : rule of exclusion 574
Toncessions of liability received ; accepted offers 575
xxi CONTENTS.
SECTION
By whom compromise offer may be made ; plaintiff 576
Independent relevancy 577
Specific admissions 578
What offers are for peace 579
Without prejudice ; English practice 580
Reasons for the rule ; value of peace 581
CHAPTER XZI.
Confessions.
Confessions 582
Requisites of admissibility 583
Misleading inducements 584
hope and fear; how mental state is established
subjective considerations 585
objective considerations ; hope 586
assumption of continuance 587
physical or mental discomfort 588
pain 589
threats 590
moral or religious 591
who are persons in authority 592
effect of arrest 593
effect of suspicion 594
deception 595
illegality 596
Self-incrimination ; history of doctrine 597
' \erno tenet ur se ipsum accusare;" present rule stated 598
procedure and reason 599
knowledge and waiver 600
preliminary hearings 601
Duress 602
Form of confessions 603
Independent relevancy 604
introduction of confession into evidence; hearing on voir dire 605
hearing of the jury 606
leaving question to the jury 607
Probative force : infirmative considerations 608
judicial confessions 609
corroboration required 610
a question for the jury 611
judicial views 612
Specific admissions 613
To whom extrajudicial confession is made 614
Administrative detail 615
The evolution of reason 616
CHAPTER XXII.
Former Evidence.
Former evidence 617
Administrative attitude of the court 618
Adequate necessity 619
absence from jurisdiction 620
claim of privilege against self-incrimination 621
death . 622
CONTENTS. xxii
Adequate necessity Continued. SECTION
imprisonment 623
inability to find 624
infamy 625
interest 626
mental incapacity 627
official duty 628
physical incapacity 629
Former trial 630
The hearsay rule 631
Identity of the issue 632
Identity of the parties 633
Scope of proof ; extension 634
intension ; precision in recollection 635
Media of proof; official documents . . 630
unofficial documents; memoranda 637
stenographers 638
witnesses ; independent relevancy 639
CHAPTER XXIII.
Relevancy.
Relevancy 640
Stephen's definition 641
Stephen's definition considered 642
CHAPTER XXIV.
Incorporation of Logic.
Incorporation of logic 643
logic defined 644
propositions 645
mental operations 646
intuitions 647
deductive operations 648
inductive reasoning 049
inference from experience 650
deduction the basis of induction 651
mental certainty 652
hypothesis 653
CHAPTER XXV.
Probative Relevancy.
Canons of relaxation ; claim of the crux 654
direct and circumstantial evidence 655
inherent difficulty of proof 656
Canons of requirement; must accord equal privileges 057
definitencss demanded 658
time must be economix.ed -. 659
jury must lit- protected 660
fact must not be remote 661
time 662
proving tli<> res vestrr 663
optional admissibility 664
consistent and inconsistent facts 665
explanatory or supplementary facts 666
negative facts 667
preliminary facts 668
xxiii CONTENTS.
SECTION
Probative relevancy ; objective and subjective 609
objective ; ancillary facts 670
subjective 67 1
CHAPTER XXVI.
Reasoning by Witnesses.
" Matters of opinion " ; an ambiguous phrase 672
irrelevancy as true ground for rejection 673
Inference by witnesses; use of reason a matter of right 674
Entire elimination of inference impossible 675
Involution of reasoning 676
conditions of admissibility 677
necessity: inability of witness to state precise mental effect of observation.. 678
inability of jury to coordinate the sense impressions of the observers. . . 679
functions of the judge 680
relevancy : objective and subjective 681
adequate knowledge 682
ordinary observer 683
skilled witness 684
conclusions and judgment of skilled witness 685
judge as tribunal of fact 686
action of appellate courts 687
s
CHAPTER XXVII.
Inference from Sensation; Ordinary Observer.
Inference from sensation; ordinary observer; familiar physical objects 688
Negative inferences 689
Instinctive inferences 690
Reasoned inferences 691
Conditions of admissibility of inferences from observation 692
Physical inferences ; body 693
conduct 694
identities and correspondences 695
how far reasoned inference is essential 696
circumstantial evidence 697
intoxication 698
physicial condition of inanimate objects 699
Physiological inferences 700
Psychological inferences . 701
insanity: ordinary observer rejected; Massachusetts rule 702
rule in New York 703
ordinary observer admitted 704
qualification of ability to state details of phenomena 705
qualification of suitable opportunities for observation 706
qualification of ability to coordinate phenomena 707
judicial estimates as to probative force 708
skilled observer 709
subscribing witness 710
objective mental states 711
inference rejected ." 712
CHAPTER XXVIII.
Inference from Sensation; Skilled Observer.
General position of skilled witness 713
CONTENTS. xxiv
SECTION
Ordinary and skilled observers; differentiation by subject-matter; what topics are
technical 714
necessity and relevancy 715
Architects and builders 710
Business affairs 717
Technical matters 718
Mechanic arts 7 19
Finger prints and tracks 720
Title to real estate 72 1
Medical inferences 722
qualifications of witnesses 723
detail of constituting facts 724
who is qualified .' 725
probative weight 726
results of autopsy 727
Military affairs 728
Mining matters 729
Photographic art 730
Railroad matters; qualifications 731
Street railways 732
Telegraphing 733
CHAPTER XXIX.
Estimates.
Estimates 734
Administrative requirements 735
Age ' 730
Capabilities : animate objects 737
mechanical 738
causation 739
Dimensions, speed, weight, etc 740
CHAPTER XXX.
Value.
Value 741
various methods of proof 742
Market value 743
hearsay 744
individual 745
qualifications 740
The proper market 747
Proof by estimate. Time of estimate 748
Change in value 749
Relative value 750
Administrative requirements : necessity 751
relevancy demanded 752
qualifications of witness; adequate knowledge 753
claim of knowledge 754,
action of appellate courts 755
preliminary statement of fact 756
Ordinary observer ; personal property, real estate and services 757
Owner as witness 758"
Skilled observer as witness 759
Skilled witness testifying as an expert 760
xxv CONTENTS.
Skilled witness testifying as an expert Continued. SEcnour
probative force of the judgment ; how tested 761
function of the jury 702
Constituents for the expert's judgment; factors controlling it 763
CHAPTER XXXI.
Handwriting.
Proof by direct evidence 764
Proof by secondary evidence ; circumstantial 765
characteristics of handwriting 766
phenomena of documents 767
who are qualified as witnesses 768
age or alterations 769
inference from observation ' 770
Ordinary observer : qualifications; seeing person write 771
adoption in course of business 772
special experience 773
Skilled observer ; qualifications required 774
Comparison of hands 775
qualifications must be affirmatively proved 776
requirements 777
English rule 778
American rule 779
witness to comparison rejected ." . 780
witness to comparison accepted 781
statutory modifications 782
proof of standard 783
proof 784
testing on cross-examination 785
proof in criminal cases 786
standardi/ing document 787
Probative weight of the inference 788
function of the court 789
inference a reasoned one 790
tests furnished by cross-examination 791
CHAPTER XXXII.
Conclusion from Observation; Fact.
Conclusions from observation ' 792
administrative requirements : necessity 793
relevancy ; preliminary detail of facts 794
Conclusions of fact ; when admitted 795
sufficiency 796
bloodhounds tracking criminal 797
utility 798
voluminous data 799
When rejected ; conducted 800
inferences 801
suppositions 802
CHAPTER XXXIH.
Conclusions from Observation; law.
Conclusions of law 803
legal reasoning 804
when admitted 805
CONTENTS. xxvi
Conclusions of law Continued. SECTION
intrusion upon the function of the court 806
when conclusion is received. 807
CHAPTER XXXIV.
Judgments of Experts.
Judgments 808
an obvious administrative danger field of the expert 809
admissibility a question of administration 810
illustrative instances of judgments 811
medicine 812
mining matters 813
railroad matters 814
trolley and street railways 815
CHAPTER XXXV.
Hypothetical Questions.
The hypothetical question 816
Conclusion and judgment 817
Form of question 818
must include all facts essential to some relevant hypothesis 819
must include all undisputed material facts 820
facts must be plausibly proved 821
general assumptions 822
administrative details 823
CHAPTER XXXVI.
Probative Force of Reasoning.
Element of observation 824
how weight is tested ; detail of preliminary facts 825
qualifications of witness 826
Inferences tested ; when tests are applied 827
Probative force of inferences from observation ; stage of rebuttal 828
Probative force of judgments ; how enhanced ; use of text-books 829
how tested on cross-examination 830
stage of rebuttal 831
Use of standard treatises; deliberative effect 832
Weight of inferences; a question for the jury 833
reason essential and sufficient 834
comparison between inferences from observation and reasoning from assumptions 835
Weight of judgments ; a field of conjecture 836
CHAPTER XXXVII.
Unsworn Statements; Independent Relevancy.
Hearsay rule as a distinctive anomaly: scope of the anomaly 837
Independent relevancy of unsworn statements; meaning of the res gestce 838
distinct criminal offences 839
Extra-judicial statements part of the res gestce 840
existence of the statement itself 841
evidence is primary 842
forms of statements 843
Extra-judicial statements as probative facts 844
bodily sensation 845
identification 846
mental condition .... 847
xxvii CONTEXTS.
Extra-judicial statements as probative facts . Continued. SECTION
intent and intention , 848
illustrative instances ...... 849
knowledge 850
illustrations 851
Extra-judicial statements as deliberative facts 852
Form of statement ; oral .. 853
reputations 854
libel, etc 855
Administrative details 856
CHAPTER XXXVin.
Unsworn Statements; Hearsay.
Unsworn statements ; hearsay 857
antiquity of rule 858
Hearsay rule stated 859
a controlling rule ; an absolute bar \ 860
statutory exceptions 861
hearsay memoranda refreshing memory 862
implied hearsay 863
knowledge based on reputation 864
testimony based on hearsay 865
Reasons for hearsay rule ; inherent weakness 866
distrust of the jury ; hearsay in other judicial systems 867
Scope of hearsay rule 868
Relevancy of hearsay 869
objective relevancy 870
subjective relevancy 871
Form of hearsay 872
composite hearsay 873
reputation 874
rumor 875
tradition 876
printed 877
written 878
official statements ; admissions 879
I
CHAPTER XXXIX.
Hearsay as Secondary Evidence; Declarations Against Interest.
Hearsay as secondary evidence 880
Declarations against interest; rule stated 881
distinguished from admissions 882
administrative requirements ; necessity 883
subjective relevancy 884
nature of interest ; pecuniary 885
proprietary 886
interest other than pecuniary or proprietary 887
general requirements 888
CHAPTER XL.
Hearsay as Secondary Evidence; Declarations as to Matters of Public or General Interest.
Declarations as to matters of public and general interest 889
Administrative requirements; necessity . . . 800
subjective relevancy ; adequate knowledge 891
absence of controlling motive to misrepresent 892
CONTENTS. xxviii
SECTION
Form of declaration 893
Scope of rule ; boundaries, etc. 894
CHAPTER XLI.
Hearsay as Secondary Evidence; Dying Declarations.
Hearsay as secondary evidence ; dying declarations 895
Administrative requirements : necessity 896
relevancy 897
subjective relevancy 80S?
completeness demanded 899
rule strictly construed 900
who are competent as declarants 901
functions of the court 902
Expectation of death 903
modes of proof 904
Form of declaration 905
Number of dying declarations 906
Privilege of husband and wife 907
Scope of declaration 908
Weight for the jury 909
a discredited rule 910
impeachment 911
mental state of declarant 912
Rule constitutional 913
CHAPTER XIII.
Hearsay as Secondary Evidence; Entries in Course of Business.
Declarations in course of business 914
English rule ! 915
American rule 916
Administrative requirements : necessity 917
subjective relevancy : adequate knowledge 918
absence of controlling motive to misrepresent 919
contemporaneousness required 920
regularity 921
Form of statement 922
written 923
Nature of occupation 924
CHAPTER XLIII.
Hearsay as Secondary Evidence; Declarations Concerning Pedigree.
The pedigree exception 925
Rule stated : unsworn statements as to pedigree 926
Administrative requirements: necessity: general and special 927
relevancy 928
validity of document not demanded 929
issue must be one of genealogy 930
Scope of rule : facts directly asserted 931
facts incidentally asserted ; relationship 932
Form of statement 933
composite ; reputation 934
tradition 935
individual 936
Circumstantial proof of pedigree 937
xxix CONTENTS.
SECTION
Proof by acquiescence in case of pedigree 938
Animal pedigree 939
Scope of circumstantial evidence in case of pedigree 940
birth 941
death 942
marriage 943
names 944
race 945
relationship 946
residence 947
status 948
CHAPTER XLIV.
Hearsay as Primary Evidence; Spontaneity.
Hearsay as primary evidence 949
Relevancy of spontaneity ' 950
Declarations part of a fact in the res gestce 951
relevancy to fact asserted 952
statement must be contemporaneous 963
The principle of the res (jestce 954
relation to the rule against hearsay 955
The modern view 956
considerations determining spontaneity 957
elapsed time 958
form of statement 959
consciousness and lack of motive to misstate , 960
permanence of impression 961
physical state or condition 962
Narrative excluded : admissions 963
spontaneous statements by agents 964
remoteness 965
Range of spontaneous statements: probative facts preceding the res gestce 966
probative facts subsequent to the res gestae 967
accusation in travail 968
declarations of complainant in rape 969
American rule 970
independent relevancy : failure to complain 971
the element of time : independent relevancy 972
declarations of owner on discovering larceny, etc 973
personal injuries -,.... 974
Probative weight of spontaneous statements 975
Who are competent declarants 976
CHAPTER XIV.
Hearsay as Primary Evidence; Relevancy of Regularity.
Shop book rule : 977
Administrative requirements : necessity 978
relevancy : adequate knowledge 979
absence of controlling motive to misrepresent 980
suppletory oath '. 981
books must be those of original entry 982
corroboration aliunrie 983
entry must be intelligible 984
entry on book account must have been a routine one 985
facts creating suspicion 986
CONTENTS. xxx
Administrative requirements Continued. SECTION
identity of book must be established 987
material used 988
original must be produced 989
Scope of evidence 990
nature of charges ; special contract 99 1
other matters 992
nature of occupation 993
who may be charged 994
Weight 995
CHAPTER XLVI.
Relevancy of Similarity; Uniformity of Nature.
Relevancy of similar occurrences; uniformity of nature 996
Preliminary observations; rule an assignment of irrelevancy; true ground of re-
jection 997
Rule stated 998
Administrative requirements ; necessity 999
relevancy 1 000
relevancy of similarity 1001
essentially similar occurrences '. . . 1002
experiments 1003
varying phenomena 1 004
relevancy of dissimilarity 1005
Inferences other than similar occurrences 100(5
Other uniformities than that of physical nature: regularity of law or business; habits 1007
CHAPTER XLVII.
Relevancy of Similarity: Moral Uniformity.
Res inter alias I 1008
Administrative requirements 1009
relevancy of similarity 1010
proof of mental state 101 1
knowledge 1012
malice 1013
other mental states 1 014
motive 1015
unity of design lOHi
relevancy of dissimilarity 1017
psychological induction . 1018
Inferences other than conduct 1019
constituent facts 1020
contradiction 1021
corroboration or explanation 1022
identification of doer of act; essential conditions for conduct 1023
probative facts 1024
CHAPTER XLVIII.
Moral Uniformity: Character.
Inference of conduct from character 1025
Necessity 1026
Relevancy 1027
Rule stated : civil cases 1 028
criminal cases 1029
quasi-criminal cases 1030
xxxi CONTENTS.
Rule stated Continued. SECTION
administrative details 1031
physical or mental impairment * 1032
trait must be relevant . 1033
Inferences other than conduct ; independent relevancy 1034
character a constituent fact 1035
character a probative fact 1036
Proof of character ; reputation is character 1037
what witnesses are qualified ; adequate knowledge 1038
knowledge of the community 1039
remoteness in time 1040
absence of controlling motive^ to misrepresent 1041
animals 1042
probative force ; reputation 1043
Proof other than by reputation 1044
particular facts 1045
animals; illustrative occurrences 1046
Weight .' 1047
CHAPTER XLIX.
Public Documents.
Public documents ; definition of 1048
principle controlling admissibility 1049
objection that they should not be removed 1050
equally admissible as copies , 1051
where not kept in strict conformity to statutory requirements 1052
authentication ; necessity of 1053
mode of 1054
legislative acts: domestic 1055
ordinances 1056
papers and documents relating to affairs of state 1057
compelling production of 1058
CHAPTER L.
Judicial Records.
Judicial records ; administrative requirements 1059
In same court and in another court 1060
Minutes or memoranda; when admissible 1061
Judicial records ; effect when perfected 1062
extent to which admissible 1063
justices of the peace 1064
probate courts 1065
CHAPTER LI.
Copies and Transcripts: Judicial Records.
Copies and transcripts; judicial records 1066
exemplifications x 10(57
examined or sworn copies 1068
office or certified copies 1069
justices' courts , 1070
probate courts 1 07 1
federal courts 1072
of other states 1073
attestation of the clerk 1074
certificate of the judge 1075
CONTENTS. xxxii
Copies and transcripts Continued.
of other states Continued. SECTION
Justices of the peace 1076
probate courts 1077
state courts in federal courts 1078
foreign courts 1079
CHAPTER in.
Public Documents; Official Registers, Papers and Writings.
Public documents; official registers, papers and writings 1080
certificates by public officers 1081
particular documents 1082
same 1083
private writings of record ; conveyances 1084
CHAPTER LIII.
Copies and Transcripts; Official Registers, Papers and Writings.
Copies and transcripts; official registers, papers and writings 1085
mode of proof ; certified copies 1086
land office records t 1087
ordinances 1088
records of private writings 1089
records of other states 1090
foreign records , 1091
CHAPTER LIV.
Private Documents and Writings.
Private documents and writings; corporation records -. photographs 1092
commercial agencies' records , 1093
ecclesiastical records . . 1094
nautical records 10J)5
secret society records 10!)6
compelling adversary to produce 1097
CHAPTER IV.
Private Documents and Writings; Memoranda.
Private documents and writings : memoranda 1098
CHAPTER LVI.
Private Documents and Writings; Proof of Original.
Private, documents and writings : proof of original 1099
attested writings: general rule . . 1 100
instrument? executed under a power 1101
exceptions to rule 1 1 02
CHAPTER IVII.
Ancient Documents.
Ancient documents: admissible without proof of execution 1 103
writings within rule: copies 1 1<H
private writings 1 105
deeds 1 106
public documents , 1 107
xxxiii CONTENTS.
CHAPTER LVIII.
Farol Evidence Rule. SECTION
Parol evidence rule ; general statement of 1 108
private documents 1 109
exceptions; collateral agreements ; instrument incomplete 1110
delivery incomplete or conditional 1111
duress fraud or fraudulent representations 1112
illegality 1113
incapacity 1114
interpretation and explanation; evidence admissible for purposes of.. .. 1115
modification or rescission subsequent to execution 1116
mistake ' 1117
parties ; identification of % . 1118
unauthorized signing 1119
public records 1120
CHAPTER LIX.
Best Evidence Rule.
Best evidence rule; application to documents 1121
writings executed in duplicate 1122
when proof other than by original allowed: administrative requirements 1123
loss or destruction of original 1 124
diligence required in search 1 125
public records; official and judicial 1126
voluminous facts in different writings 1127
writing collateral to issues 1128
writing in control of adverse party . . . .' 1 129
writing in possession or control of third party ; out of jurisdiction 1130
CHAPTER LX.
Evidence By Perception.
Evidence by perception ; meaning of term . 1131
Administrative power of court 1132
Subjects of; animals 1133
persons : facts to be proved : age u 1 1 34
resemblance, paternity, etc 1135
things : in civil actions 1 1 36
Tn criminal cases 1137
Experiments 1138
View 1 139
CHAPTER LXI.
Witnesses; Attendance of.
Attendance of witnesses ; power of court as to 1140
mode of procuring : subpoena 1141
subpoena duces tecvm 1 1 42
habeas corpus ad testificandum 1 143
recognizance 1 144
'rvivmlsory process; not a taking of property; duty to testify 1145
payment for attendance 1 146
punishment for contempt 1147
CONTENTS. xxxiv
CHAPTER LXII.
Incompetency of Witnesses; Mental Incompetency. SECTION
Incompetency of witnesses ; nature of an oath 1 148
immaturity of children's minds 1 149
insanity, idiocy, etc 1 150
intoxication 1 151
victims of drug habits 1 152
CHAPTER LXIII.
Incompetency of Witnesses; Policy of the Law.
Incompetency of witnesses; policy of the law; atheism and other disbelief in God. . . . 1153
attorneys 1 154
husband and wife ; general rule 1 1 55
infamous crimes ; common law rule 1156
interest, etc : 1157
judge and jurors 1158
CHAPTER LXIV.
Incompetency of Witnesses; Race.
Incompetency of witnesses ; race 1 159
CHAPTER IXV.
Privileged Communications.
Privileged communications 1160
attorney and client ; general rule 1161
when applied 1 162
exceptions 1163
waiver by client of privilege 1 164
clergymen x 1165
husband and wife ; general rule 1 166
physician and patient : privilege is of statutory origin 1 167
public justice: grand jurors ' 1 168
petty or traverse jurors 1 1 69
secrets of state 1170
CHAPTER LXVI.
Examination of Witnesses.
Examination of witnesses 1171
direct examination : leading questions 1172
use of memoranda to refresh memory 1 173
cross-examination 1174
scope of 1175
redirect examination 1176
examination subsequent to redirect 1 177
recalling of witnesses 1 1 78
privilege aa to self-incrimination 1 179
CHAPTER LXVII.
Impeachment of Witnesses.
Impeachment of witnesses; application of maxim "falso in uno falsus in omnibus". .
right to impeach
one's own witness
opponent's witness : character
bias or interest
contradictory statements
LAW OF EVIDENCE.
CHAPTER I.
LAW OF EVIDENCE.
Definitions in general, 1.
Law of evidence, 2.
Scone of the law of evidence, 3.
Evidence defined, 4.
Extra judicial evidence, 5.
Judicial evidence, 6.
" Proof '' and " evidence" 1.
" Testimony " and " evidence," 8.
Subdivisions of evidence, 9.
admissible evidence, 10.
best and secondary evidence, 11.
competent evidence, 12.
conclusive evidence, 13.
direct and circumstantial evidence, 14.
material evidence, 15.
oral and documentary evidence: document defined, 16.
difficulty of removal, 17.
symbolical representations of thought, 18.
proper scope of documentary evidence, 19.
positive and negative evidence, 20.
real and personal evidence, 21.
Secondary meanings of the term " evidence," 22.
1. Definitions in General. 1 Whatever may be true of the ancient maxim,
" Omnis definitio in jure periculosa est," in other connections, one who, like
]\Ir. Justice Stephen, is seeking to render the law of evidence intelligible,
cannot well refrain from incurring the danger of violating it. The constant
necessity of adapting familiar technical terms to the apprehension of a popular,
ever-changing, tribunal like the jury, and the careless, inexact sufficiently
accurate for immediate purposes action of the courts in their use of terms
have a constant tendency to break down any remnants of scientific precision
in the use of terminology, and to develop numerous connotations for each
term or phrase commonly employed in connection with the subject. That any
1. 1 Chamberlayne. Evidence, 1.
| 2-4 LAW OF EVIDENCE. 2
treatise on evidence should be understandable, tbis confusion must, so far as
practicable, be eliminated by a careful definition of the terms about to be
employed. It has, however, been deemed advisable not to attempt incumbering
the subject with the additional complication of a new terminology. The
only course, therefore, would seem to be the selection of one among several con-
notations of the multifold-meaning terms. This has, wherever possible, been
done.
2. Law of Evidence. 2 The u rules of evidence " are such precepts in the
general subject of judicial administration as determine the manner in which a
designated fact submitted to judicial decision may be proved ; 3 whether such
a fact may be proved at all ; if so, who are competent to prove it and under what
conditions. In the aggregate, these rules constitute the " law of evidence."
3. Scope of the Law of Evidence. 4 " The law of evidence has to do with
the furnishing to a court of matter of fact, for use in a judicial investigation.
(1) It prescribes the manner of presenting evidence; as by requiring that it
shall be given in open court, by one who personally knows the thing, appearing
in person, subject to cross-examination, or by allowing it to be given by depo-
sition, taken in such and such a way; and the like. (2) It fixes the qualifica-
tions and the privilege of witnesses, and the mode of examining them. (3 ') And
chiefly, it determines, as among probative matters, matters in their nature
evidential, ^hat classes of things shall not be received. This excluding
function is the characteristic one in our law of evidence.'' 5
4. Evidence Defined. In its original sense, the term " evidence " is that
which causes the state of being evident or plain. As at present employed, the
term '* evidence," in general, covers all facts from which an inference may
logically be drawn as to the existence of a fact under investigation. For ju-
dicial purposes, evidence may be conveniently divided, in the order in which
a fact may present itself to observation, into e:rfrn judicial and jucficinl. " Ju-
dicial evidence is that which is produced to the court; it comprise? all evidential
facts that are actually brought to the personal knowledge and observation of
the tribunals. Extrajudicial evidence is that which does not come directly
under judicial cognizance but nevertheless constitutes an intermediate link
between judicial evidence and the fact requiring proof." ~
2. 1 Chamberlayne. Evidence. 2. 3. T.apham v. Marshall. 5] Hun (N. Y.)
Mr. Chamberlayne's treatise concerns it- 361, 3 X. V. Supp. 601 (1889).
self primarily with evidence, neither as de- 4. 1 fhamberlayne. Evidence. 3.
noting the science of proof nor the art of 5. Thayer, Prelim. Treat.. '264.
proof, but " as covering the physical means 6. 1 Chamberlayne, Evidence, 4.
by which the art of producing belief in the 7. Salmond. Jurisp. (2nd ed.), 447. For
truth of a given proposition or of verifying other definitions of evidence, see Chamb.,
a fact by the use of reason, is carried on." Ev., 4 and 5, and notes thereto.
This aspect of the term " evidence " is the
special subject of his treatise.
3 SUBDIVISIONS OF EVIDENCE. 5-9
5. Extrajudicial evidence. ^ " Extrajudicial evidence includes all evidential
facts which are known to the court only by way of inference from some form
of judicial evidenced 9 Extrajudicial evidence is part of the order of nature
as distinguished from the art of investigating reports of the natural occur-
rences. It is the field of objective relevancy.
, 6. Judicial evidence. Judicial evidence includes all testimony given by
witnesses in court, all documents produced to and read by the court, and all
things personally examined by the court for the purposes of proof. lu Judicial
evidence is the domain of subjective relevancy; 11 of the use of deliberative
facts: la of the balancing in mental scales, of the weight the true probative
force of the statements of witnesses or of the declarations of documents. 13
7. " Proof " and " Evidence." The terms " evidence " and " proof " have
ben used as synonyms that is, as indicating the means by which mental cer-
tainty on the part of a tribunal is created. 14 But when properly employed,
" proof ' ? sustains to " evidence " the relation of an end to the means used in
attaining it. Proof is the state of mind which it is the object of evidence to
produce. 1 " 1 The most pernicious effect of using the word " proof " as meaning
either (1) the end of mental certitude, or (2) the means by which a party
seeks to attain that end lies in connection with the phrase " burden of proof,"
where the two senses of the term proof are interchangeably employed in a be-
wildering way. 16
8. "Testimony" and " Evidence." Evidence " and "testimony" have
been used frequently by the courts as conveying the same meaning. More prop-
erly, " testimony " is that part of judicial evidence which comes to the tribunal
through the medium of witnesses i.e., by means of their verbal statements. 17
9. Subdivisions of Evidence. No general system of classification has been
adopted by those who have sought to create classifications in the generic term
8. 1 Chamberlayne, Evidence. 6, 55. Albany County Savings Bk. v. McCarty. 149
9. Salmond. Jurisp. (2nd ed.), 417. X. Y. 71, 83. 43 X. E 427 (1896).
10. 1 Chamberlayne, Evidence, 7; Sal- 15. 1 Chamberlayne. Evidence, 8: Schloss
mond, Jurisp. (2nd ed., 417. v. Creditors. 31 Cal. 201 i!866): Powell v.
11. 1 Chamberlayne, Evidence, 7. 56. State. 101 Ga 9. 21, 29 S. E 309, 65 Am
12. 1 (hamberlayne. Evidence. 7. 47, 52. St. Rep. 277 (18971 : Perry r. Dubuque. etc ,
13. 1 Chamberlayne. Evidence, 7. R. Co. 36 Towa, 102 (1872) : Miles v. Edelen.
14. 1 Chamberlayne, Evidence. 8: 1 Duv (Ky.) 270 (1864): .lastrzembski v.
O'Kfiliy v. Guardian, etc., Life Ins. Co.. 6 Marxhausen. 120 Mich. 677. 683. 79 X W
X. Y 169, 172; 19 Am. Rep 151 (1875): 935 (1 899 ): Buffalo, etc , R Co v. Reynolds.
Hill v. Watson. 10 S. C. 268, 273 (1878) 6 How Pr (X. Y.) 96-9S (1851): Hill v.
Reverse confusion. Under a Xew York Watson. 10 S. C. 268. 273 (1S78) <; Evi-
statute a certain certificate was declared to dence is the medium of proof: proof is the
be " evidence without further proof." These effect of evidence." People v Beckwith. 108
words were construed to mean that the cer- X. Y* 67. 73 ilSSS).
tificate was proof without further evidence 16. 1 Chamberlayne. Evidence. 8, 936.
17. 1 Chamberlayne, Evidence, 9.
g 10-13 LAW OF EVIDENCE. 4
" evidence.'' In most cases the classification is, as it were, modal, i.e., the
classes are differentiated according to the mode or method by which the evidence
operates in creating belief in the existence of a given fact, e.g.. direct and
circumstantial evidence; or probative, i.e., as indicating the evidentiary force
- belief-generating effect of the facts in question as related to the facts
involved in the inquiry as material evidence, competent evidence and the
like. 18
10. [Subdivisions of Evidence] ; Admissible Evidence. Evidence which the
court receives in the course of a trial, or might properly receive, is admissible
evidence. Admissible evidence relates to proof of three classes or species of
facts: (1) Constituent, or res gestae facts; (2) probative or evidentiary facts;
(3) deliberative facts. 19
11. [Subdivisions of Evidence] ; Best and Secondary Evidence. The im-
portant subject of " best and secondary " evidence indicates no absolute division
between facts of one class and facts of another. The classification, in any
particular case, is conditioned upon a number of variables, e.g., the evidence
which it is fairly within the power of a proponent to produce, the nature of
the case or investigation, the stage of the trial, the state of the evidence, and
the like. It, therefore, indicates a relative rather than an absolute line of de-
markation. Such division of relation is obviously not a rule of law or even a
rule of procedure. It is rather a guide to the discretion of the court in admit-
ting testimony, i.e., a canon of judicial administration. 20
12. [Subdivisions of Evidence] ; Competent Evidence. Facts which, under
these rules of procedure or the canons of administration, will be considered by a
judicial tribunal, have been designated as " competent." 21 though the term has
been used as equivalent to sufficient to warrant action by the tribunal. 22
13. [Subdivisions of Evidence] : Conclusive Evidence. 23 Where the evidence
of a probative fact or set of facts amounts to a demonstration of the fartvm pro-
bandum to which it is directed, where the evidence is uncoritrovertible, it is
said tc be conclusive. 24 This conclusive evidence has been spoken of as
" either a presumption of law. or else evidence so strong as to overbear all other
in the case to the contrary." 25 Such a statement would be appropriate, in
reality, only of a mathematical demonstration, the ultimate basis of which is
18. 1 Chamberlayne, Evidence, 10. 22. 1 Chamberlayne. Evidence. 13: Xiles
19. 1 Chamberlayne. Evidence. 11 v Spra<nie. 13 Town. 198, 204 M862)
20. 1 Chamberlayne, Evidence. 12, 339. 23. 1 Chamberlaynp. Evidence. 14
21. 1 Chamberlayne, Evidence. 13: Evan 24. Wood v Chapin, 13 X. Y 509. 515,
v. Bristol. 63 Conn. 26, 36 27 Atl. 360 67 Am Doc. 62. per Denio. C -T (1856)
(18931: State v. Johnson. 12 Minn. 476, 93 25. Haupt v Pohlnaan, 1 Rob (N Y.) 121,
Am. Dec 241 (1867) : Porter v Valentine. 18 127, per Robertson, J. (1863).
Misc. (X. Y.) 213-215, 41 N. Y. Supp 507
and cases cited (1896).
SUBDIVISIONS OF EVIDENCE.
14
where the existence of the thing observed as distinguished from the inferences
to be drawn from it being a state of consciousness, cannot admit of doubt. 26
14. [Subdivisions of Evidence] ; Direct and Circumstantial Evidence. 27 As
commonly used, direct evidence is the immediate perception of the tribunal or
the statement of a witness as to the existence of a constituent fact. Circum-
stantial evidence is the statement of a witness as to the existence of a fact in
some degree probative as to the existence of a constituent fact. The distinction
is generally regarded as important. Where a witness testifies to the existence
of a res gestae fact his testimony is direct. Where, on the contrary, he
testifies to a' probative fact, i.e., to a fact which, either alone or in connection
with other facts, renders probable the existence of a res gestae fact, the evidence
is circumstantial. "Evidence is of two kinds: That which, if true, directly
proves the fact in issue; and that which proves another fact from which the
fact in issue may be inferred." 28 Tlie distinction seems confusing and mislead-
ing rather than helpful. It is an attempt to turn a difference in degree of im-
mediateness in proving a res gestae fact into a difference in kind or nature of
evidence itself. 29 The -value of the distinction does not apparently compensate
for the danger involved in emphasizing it, and it might readily be abandoned
without injury to any interests of judicial administration. 30
26. 1 Chamberlayne, Evidence, 14. The
phrase, conclusive evidence, may be used to
etate a proposition as to which the law of
evidence has nothing whatever to do, though
couched in the appropriate phraseology of
the subject; the equivalence between two
things prescribed by the substantive law.
Thus, the rule of substantive law that pre-
scriptive user of a non-corporeal heredita-
ment for a period of twenty years bars the
right of action, may be announced by say-
ing that proof of such a user is conclusive
evidence of a lost grant, or by the equiva-
lent expression that a lost grant is conclu-
sively presumed from the fact of such user.
See Wallace r. Fletcher. 30 X H 434 (1855).
27. 1 Chamberlavne. Evidence, 15.
28. Hart v. New-land, 10 N. C 122, 123
(1824); West r. State, 76 Ala 98 (1884);
Terr. r. Fagan. 3 Dak. 119, 13 X W. 568
(1882) -, Keed's Case, 1 Cen. L. J (Me) 219
(1874): Com. v. Webster, 5 Cush (Mass.)
295, 310, 52 Am. Dec. 711 (1850): McCann
r. State, 13 Smedes & M. (Miss.) 471
(1850): State r. Avery, 113 Mo 475. 21
X W. 193 '18021: Curran > Percival. 21
Xeb. 434, 32 X. W 213 1887 : State r.
Slingerland. 10 Nev. 135, 7 Pac 280 'ISv'il:
Pease v. Smith. 61 X. Y. 477 '1875): Bash
v. Bash, 9 Pa. St. 260 (1848); Lancaster v.
State, 91 Tenn. 267, 18 S. W. 777 (1891);
U. S. v. Cole, 5 McLean ( U. S.) 513, Fed.
Cas. Xo. 14,832 (1853): U. S. v. Gilbert, 2
Sumn. (U. S) 19, Fed. Cas. Xo. 15,204
(1834)
" Direct or positive evidence is when a
witness can be called to testify to the pre-
cise fact which is the subject of the issue on
trial." Com. r. Webster, supra, per Shaw,
C.J.
Circumstantial not cumulative as regads
direct evidence. Evidence tending, circum-
stantially, to establish a fact in issue is not
cumulative as regards direct evidence as to
the same fact. Vardeman v. Byrne, 7 How.
(Miss) 865 (1843).
29. 1 Chamb., Ev., 15. A fact proved
by a legitimate inference is proved no less
fhan when it is directly sworn to. Doyle v.
Boston, etc.. Ry. Co., 145 Mass. 386 (1888).
30. See discussion in 1 Chamb , Ev., 15.
This has been done by Stephen. See Dig.
Law of Ev.. art. 1.
Circumstantial evidence is not of second-
ary importance to direct or positive evi-
dence All evidence is largely circumstan-
tial and even when most direct it depends
upon circumstances for its credibility, weight
and effect. Xo human testimony is superior
to doubt even in cases of the most direct
15-17 LAW OF EVIDENCE. 6
15. [Subdivisions of Evidence]; Material Evidence. 31 Where a fact of-
fered in evidence is not merely relevant, in the logical sense, but presents the
cogency of probative force required for affirmative action on the part of the
tribunal, 32 it is ki material evidence." 33
16. [Subdivisions of Evidence]; Oral and Documentary Evidence; Docu-
ment Defined. 34 By " document " is denoted the union of a material sub-
stance and the written language carried by it. A document is a physical
thing a piece of paper, parchment, any material substance, and this physi-
cal, material thing is a vehicle, instrument or means by which thought is pre-
sented to the mind. Both of these ideas are essential to the conception of the
term " document." A blank sheet of paper would not be a document. The
oral testimony of a witness though it convey thought, is not a document.
The stenographic notes by which the testimony of the witness has been placed
upon paper would probably constitute the paper containing them a document.
When these notes are transcribed into the ordinary written, typewritten or
printed characters of language, the material substance carrying the thoughts so
represented is clearly one. It is this combination of a material substance and
its conveyance of thought which constitutes the essential feature of a document.
In other words, the term " document " will be limited to writings in the present
treatise. 35 No restriction exists as to the material substance which may thus
convey thought. 36
17. [Subdivisions of Evidence] ; Difficulty of Removal. 37 Practical con-
proof. It is always possible that witnesses facts into those which are the material, i.e.,
may err unintentionally or may corruptly constituent, and those which are not. 1
falsify their testimony for reasons which are Chamb., Ev., 16.
at the time not apparent and not known. 34. 1 Chauiberlayne, Evidence, 17.
If the law required mathematical certainty 35. 1 Chamber layne, Evidence, 17. Such
either as to matters of fact or as to the con- a limitation of the characters on a document
elusions drawn by the courts and juries the to language which conveys thought, rather
enforcement of law would be impossible. Ex than to marks or symbols which merely
parte Jeffries, 7 Okla. Crim. Hep. 544, 124 sugyest it, from the existence of which it
Pac. 924, 41 L. R. A. X. S 749 (1912). may reasonably be inferred seems to be in
31. 1 Chamberlayne, Evidence, 16 the direction of clearness and precision in
32. 2 Chamberlayne, Evidence, 903. terminology. Unless this limitation be
33. 1 Chamberlayne, Evidence. 16: For- adopted, the whole definition of document
ter v. Valentine, IS Misc (N. Y. ) 213, 41 at once becomes involved in a fog as is
N Y. Supp. 507 (1896) abundantly shown by the interesting specu-
While " material " implies an additional lations of Bentham and Mr. Gulson's corn-
logical persuasiveness to that necessarily mentaries upon them. (See 1 Chamb., Ev.,
carried by the term relevant, 'immaterial" 23, 27.) The limitation to language is
and " irrelevant." as generally used, are also in the interest of symmetry and bar-
practical !y synonymous. What facts are mony in the subject itself. 1 Chamb., Ev.,
material to any inquiry will be fou.d to be 17
determined by the nature of the right or 36. 1 Chamberlayne, Evidence, 17; Row-
liability asserted, i.e., so far as this is ex- land v. Burton, 2 Harr. (Del.) 288 (1837),
pressed in terms of fact, by the component wood: Kendall r. Field, 14 Me. 30 (1836),
facts of the case The existence of these wood,
component facts differentiates the res gestae 37. 1 Chamberlayne, Evidence, 19.
7 SUBDIVISIONS OF EVIDENCE. 18,19
siderations of convenience may, as a matter of administration, excuse the physi-
cal production of a document where its size, weight or immobility are such as
to render it difficult, if not impossible, to afford the court and jury actual
personal inspection of it. In such cases, as is more fully stated elsewhere, 38
the court may take a view or permit the jury to take one if this seems the more
satisfactory course; or, witnesses may be permitted to testify as to the con-
tents, 39 or a copy, 40 by photographic or other means, may, upon proper identi-
fication, be introduced in evidence. But this inconvenience of production in
no way affects the fact that, whatever may be the material substance, it is, so
long as it conveys thought, a document. Up to this point, harmony exists
among the authorities.
18. [Subdivisions of Evidence] ; Symbolical Representation of Thought.
For practical purposes the sole method by which thought may properly be said
to be conveyed with a reasonable approximation to clearness and accuracy from
one mind to another, is by the use of language. It would seem appropriate
therefore that the use of written language should be the sole means of conveying
thought which, when joined with a material substance, -shall be deemed to con-
stitute a document. 41
19. [Subdivisions of Evidence] ; Proper Scope of Documentary Evidence.
To sum up the results of examination into the proper scope of " documentary
evidence," 42 and state the conclusions reached, it may be taken (1) that as a
species of evidence, a classification into oral evidence and documentary evidence
would be of little or no value. (2) That as a medium of proof, documents have
a recognized and valuable place, sharing with the oral testimony of witnesses
and with perception the class of media of proof. (3) That the oral testimony
of witnesses is properly confined to the psychological facts, such as thought,
and the like, which are conveyed to the tribunal by means of oral testimony,
i.e., the verbal statements of witnesses. (4) That " documentary evidence "
is confined to such psychological facts, including thought and the like, as are
conveyed to the consciousness of the tribunal by the medium of written lan-
guage carried by any material substance. (5) That the third medium of proof,
perception, 43 may properly be used. to denote all physical facts, including the
38. See Evidence by Perception, post CK rying a number suggests tbe thought of a
LX corresponding number which may serve to
39. Tracy Peerage Case, 10 Cl. & Fin. identify the proper claimant Yet neither
154, 180 (1843). But the difficulty of re- this, nor any similar suggestions apparently
moral must affirmatively appear; otherwise suffice to make the check such a conveyor of
the evidence will be rejected. Jones r. Tarle- thought as to constitute it a document,
ton, M. & W. 675, 677, per Parke, B. " The tag referred to was not a document,
(1842). but an object to be identified." Com. v.
40. Slaney v. Wade, 1 Myl. & C. 33S Morrell. 00 Mass. 542 (1868)
(1835). 42. 1 Chamberlayne. Evidence. 21-24.
41. 1 Chamberlayne. Evidence. 20 The 43. See Evidence by Perception, post Chap-
check attached to a trunk and car- ter LX.
20,21 LAW OF EVIDENCE. 8
expression or manifestation of psychological facts, whether the immediate
source of these facts is a person or thing, which the court perceives by the use
of its own senses. It may be added that in connection with the treatment of
documents as a medium of proof, it has seemed appropriate to treat the re-
quirements of substantive law or various branches of procedure especially af-
fecting the use of documents and their distinctive effect in evidence, under
this heading of documentary evidence. 44
20. [Subdivisions of Evidence] ; Positive and Negative Evidence. 45 The
term " positive evidence " has been used as synonymous with " direct." 46 A
more accurate use of the term " positive " is that by which it is employed as
opposed to " negative " positive evidence being denned as direct evidence
as to the existence of an alleged fact, negative evidence being used to indicate
the case where a tribunal is asked to infer the nonexisteuce of the fact in ques-
tion from the circumstance that the witness did not perceive it. 47 Certainly
the distinction is of little if any practical importance.
21. [Subdivisions of Evidence] ; Real and Personal Evidence. 48 The dis-
tinction between real and personal evidence has proved one fertile in confusion.
The fundamental difficulty does not lie in the main line of cleavage real evi-
dence, on the one hand, being the evidence furnished by things Latin, res;
personal on the other, being evidence furnished by persons, as this distinction
was originally formulated by Bentham. The distinction between real 'and
personal evidence is thus stated by Bentham : " Personal evidence, that which
is afforded by some human being by a being belonging to the class of per-
sons; real evidence, that which is afforded by a being belonging, not to the
class of persons, but to the class of things."
This distinction has been confused by Mr. Best by attempting to make the
distinction depend on whether the evidence is furnished by the testimony of
a witness or by perception of the tribunal : and by making a distinction between
evidence which is voluntary and that which is involuntary.
It seems the better rule to follow to hold that that which the tribunal per-
44. 1 Chamberlayne, Evidence, 25 be illustrated thus: It is positive to say
45. 1 Chamberlayne Evidence. 26. that a thing did or did not happen; it is
46. Davis r. Curry, 2 Bibb (Ky.) 238 negative to say that a witness did not see
(1810): Cooper?'. Holmes. 71 Md 20,281. 17 or know of an event's having transpired
Atl. 711 (1880): Com. v. Webster. 5 Cush McConnell v State. 07 (Ja. 033 (1881).
(Mass.) 205, 310 (1850): Xiles r. Rhodes, Although positive testimony will outweigh
7 Mich 374 i 1850); Pease v Smith. 61 negative testimony still testimony by men
i>. Y 477. 484 (1875) : Bash v. Bash, Pa that no warning was given when the wit-
St. 260. 262 (1848), "positive" and "clear nesses were in a position to hear one if it-
and satisfactory " See also Schrack v. Me- had been given is not purely negative but ia
Knight, 84 Pa. St. 26, 30 (1877), "positive" sufficient to justify a verdict which the ap-
and " satisfactory " pellate court will not set aside on appeal
47. Falkner v. Behr, 75 Ga. 2671, 674 P. B. & W S R. v Gatta. 4 Boyce (Del.) 38,
(1885) Illustration. The distinction be- 85 Atl 721. 47 L. R. A. (X. S.) 932 (1013).
tween positive and negative testimony may 48. ] Chamberlayne, Evidence. 27-31.
9 SECONDARY MEANINGS. 22
ceives of an evidentiary nature furnished by a thing, a physical object, is real
evidence; that which it perceives of an evidentiary nature furnished by a
person, is personal evidence. In other words, that evidence is personal which
is furnished to the tribunal by persons, and real evidence, that which is fur-
nished to the tribunal by things. If this mental concept of the viewpoint of
the tribunal be abandoned, the distinction has no value, and only confusion
results from its use. Thus the physical aspect of persons who appear before
the tribunal is personal and not real as it emanates from persons and so of evi-
dence of involuntary acts.
22. Secondary Meanings of the Term " Evidence." 49 It seems appropriate
that the subsidiary or secondary meaning of the term " evidence,'' that is evi-
dence treated as a science, or regarded as an art should receive brief attention
at this point. This subordination must be understood as merely relative to
the purposes of a particular treatise. Jurisprudence stands sorely in need of
a science of evidence. Judicial administration, both in the work of trial and
appellate courts would be greatly facilitated and expedited were the art of evi-
dence more clearly formulated and better understood by the vast majority of
practitioners. The rules and practical administration of evidence the law
of evidence may fairly be defined as being that part of the doing of judicial
justice which concerns itself with the ascertainment of truth. That justice
should be done in any case it is first essential that the truth of the matter be
ascertained. It is as to this preliminary requisite to the just action of any
tribunal with which the law of evidence, whether regarded as a science or as
an art, exclusively concerns itself. The object of the law of evidence is,
therefore, that of all scientific inquiry the establishment of truth by the use
of the perceptive and reasoning faculties.
Substantive law is in the nature of things comparatively distinct but sub-
stantive law has much direct influence on the law of evidence introducing its
considerations of public policy and the rights of the parties. Substantive law
has further much concealed influence on evidence and the instances in which
this is done, are most frequently introduced by the phrase " evidence is ad-
missible to prove " or " evidence is not admissible to prove " a given fact.
The peculiarity is that in many such cases, the evidentiary fact, the factum
probans, is well calculated to prove the fact to the proof of which it is directed,
i. e., the factum probandum. The real cause for rejecting the former fact is
that the latter fact is not provable under the rules of substantive law, or that
the ultimate factum probandum the constituent fact at the end of the chain
of probative facts would be excluded by these rules. The real difficulty lies in
a failure to distinguish accurately between the function of a probative fact and
that of a constituent one.
49. 1 Chamberlayne, Evidence, 32-37.
CHAPTER II.
FACTS.
Fact defined, 23.
Matter of fact, 24.
Matter of law, 25.
Matter of opinion, 26.
Classification of facts, physical or psychological, 27.
simple and compound, 28.
component facts, 29.
component and probative, 30.
res gestae and constituent, 31.
compound, component and constituent, 32.
positive and negative, 33.
principal and probative, 34-.
states and events, 35.
Relevancy, 36.
Constitutionality of statute declaring effect of certain facts, 37.
23. " Fact " Defined. Scientifically speaking, a fact is that which exists
either in the world of matter or in that of mind. " We may define a fact as
a reality of nature, existing or perceptible in the present or the past, and hav-
ing its seat either in matter or in mind.'' 1
24. " Matter of Fact."- - For judicial purposes, " fact " as a genus, is
divided into three species (1) matter of law, (2) matter of opinion, and (3)
matter of fact. N'o very clear differentiae indicate these several species.
It may be said that whatever falls within the genus " fact " which is not
clearly " matter of law " or " matter of opinion " is properly classed as " mat-
ter of fact." -
25. Matter of Law. The existence of a rule of foreign law is, by the
great, weight of authority. 3 a question of fact. But it is otherwise as to rules
of municipal or domestic law. Knowledge and enforcement of these laws is, so
far as the judge is concerned, part of the judicial office. It has seemed wise,
party as conducive to the proper demarcation of the respective provinces of
the court and jury, 4 to segregate such matters of fact from facts of a different
relation to the administration of justice under the general term " matter of
law." 5
1. 1 Chamberlayne, Evidence, 38, 39. 4. 1 Chamberlayne, Evidence, 67 et seq.
2. 1 Chamberlayne. Evidence. 40. 5. 1 Chamberlayne, Evidence, 41.
3. 1 Chamberlayne, Evidence, 154 et seq.
10
11 CLASSIFICATION. 26-29
26. Matter of Opinion. " Matter of opinion, not being disputed questions
of fact, are general propositions or theorems relating to laws of nature or mind,
principles and rules of human conduct, future probabilities, deductions from
hypotheses and the like, about which a doubt may reasonably exist. All doubt-
ful questions, whether of speculation or practice, are matter of opinion. With
regard to these, the ultimate source of our belief is always a process of rea-
soning." 6
27. Classification of Facts ; Physical or Psychological Classifying facts in
general, according to whether they are within or without the body of the ob-
server, they may be divided into (1) physical, of which the knowledge of the
observer comes through the perception of the senses; and (2) psychological,
comprising feelings, emotions and other phases of the mind of which the
latter is intuitively aware. It may well be that the mind is aware only of
changes in its states of consciousness. 7
28. [Classification of Facts] ; Simple and Compound Facts of a compara-
tively simple nature may unite to form compound facts of a greater- degree of
complexity, these in turn joining with others to form a fact still more involved,
and so on to an indefinite extent. An absolutely simple, uncompounded, in-
divisible fact apparently does not exist in nature as commonly presented to
perception. Even the simplest act to which a single name is attached in lan-
guage as of a unit is in reality upon closer inspection found to be a series of
collection of simpler acts. 8 " In theory we can conceive a fact absolutely
simple ; for example, the existence of an atom in a state of rest, an instanta-
neous perception of the mind, etc. In practice, there is nothing of this kind ;
a fact, though it may be spoken of as a single fact, is still in reality an aggre-
gate of facts."
\\"hile this is essentially true, it has been deemed practically expedient to
treat as a simple fact any existing state of matter or mind which may be ascer-
tained or verified by a single act of perception or intuitive consciousness. 9
29. [Classification of Facts] ; Component Facts. In any investigation, judi-
cial or other, in which the existence of a right is claimed or a liability asserted,
the truth of certain special facts which, when united, make up or compose such
right or liability, is necessarily involved. It seems proper to designate these
facts as component. Proof of these facts is absolutely essential to proof of
6. 1 Chambcrlayne, Evidence, 42. issue the circumstances attending his acts are
Lewis, Authority on Matters of Opinion, c. competent evidence of it and also his own
1, 1. testimony as to his motive, purpose and intent
7. Physiological Facts. Tt has seemed best, is also competent, Eckerd v. Weve, 85 Kan.
to classify physiological with physical facts, 752, 118 Pac. 870, 38 L. R. A. (N. S.) 516
1 Chamberlayne, Evidence, 43. (1911).
Proof of condition of mind. Where the 8. 1 Chamberlayne, Evidence, 44.
condition or state of mind of a party is in 9. 1 Chamberlayne, Evidence, 45.
30-32 FACTS. 12
the proposition submitted to investigation. They, or more properly, their ex-
istence is essential to the truth of the proposition in issue. 10
30. [Classification of Facts] ; Component and Probative. The relation be-
tween a compound fact and its component facts is essentially different from
that between an evidentiary and. a principal one, between a factiun probans and
a factum probandum whatever be the degree of approximation to the res
gastae and through these and the component facts to the proposition in issue.
First, a component fact is comprised in, and part of, its compound fact. The
latter, at least in its present form, does not exist unless the component fact
also exists. If the compound fact exists, its component facts, of necessity,
also exist.
On the contrary, a probative or evidentiary fad (factum probans} is some-
thing extrinsic to and entirely outside of the principal fact (factum proban-
dum), it is externalized as part of objective nature. The evidentiary or pro-
bative fact may exist and the 'principal fact not exist ; or, on the contrary, the
probative fact may not be true and the factum probandum still exist. 11
31. [Classification of Facts] ; Res Gestae and Constituent. The res fjestae
of a judicial inquiry are that portion of the natural occurrences, a portion, as
it were, of the world's aggregate of happenings or existences, out of which
the right claimed or liability asserted comes into being. Constituent facts are
those among the res gestae facts which are material to the existence of this
right or liability. 12
32. [Classification of Facts] ; Compound, Component and Constituent. The
relation of the component facts to the compound proposition of the facts in
issue to the issue itself is a matter of law. The existence of these com-
ponent facts is part of the definition, in point of law, of the main proposition,
i.e., of the issue. These component facts are the requirements of substantive
law expressed in terms of fact, they establish the legal standard up to which
the facts proved in the case are to come in order to establish the truth of the
main proposition asserted.
The constituent facts constitute the final or primary facts, to which, when
established to their satisfaction, the court or jury, as the case may be, will
apply the rule of law involved in the main proposition the issue. In other
words, component facts are part of the rule, furnished by the court, and ap-
plied by it or by the jury. The constituent facts are those to which the rule
is applied. 1 '"
10. 1 Chamber layne, Evidence, 45. rated by evidence of other witnesses that
11. 1 Charaberlayne, Evidence, 46. men were seen in the places where the ac-
12. 1 Chamberlayne, Evidence, 47, 48. complice said they were who looked like the
For example. An accomplice may testify accused. Grant v. State, Tex. Grim. Rep.
as to the plans of the conspirators before 148 8. VV. 760, 42 L. R. A. (N. S.) 428 (1912)
the crime and what they intended to do with citing text.
the money they expected to steal from the 13. 1 Chamberlayne, Evidence, 45, 49.
victim. So his testimony may be corrobo-
13' CLASSIFICATION. *
33. [Classification of Facts] ; Positive and Negative. 14 It has been said
by high authority 15 that all facts may be classified as positive or negative.
This statement is true rather of propositions than of facts. In the nature of
things, all facts must be positive. For, as Bentham more accurately says, 16
" the only really existing facts are positive facts. A negative fact is the non-
existence of a positive one, and nothing more. But it is otherwise of proposi-
tions of fact. We may, and frequently do, predicate, both in judicial or other
inquiries, the nonexistence of a fact." A proposition, negative in form, may
well be positive in substance ; a statement in form positive, may
in reality be negative. Indeed, the same proposition may be made positive or
negative at will it being obvious that it is not material to the meaning
whether the existence of a fact be affirmed or its nonexistence be denied ; or
whether its nonexistence be affirmed or its existence be denied. The proposi-
tion, in either form, is positive in the first case and negative in the second.
It is for this reason that one who testifies to a positive fact, e.g., that he no-
ticed a certain detail of an accident, is deemed, as a rule, more credible than
he who affirms the negative fact thai it did not occur.
The most that can be done in the way of proof of the negative fact or, if the
expression be preferred, the- disproof of the correlative positive is the proof
of some positive fact, the existence of which is inconsistent with the existence of
the correlative positive fact, and then infer the nonexistence of the latter from
the existence of the former. In other words, while a negative fact presents
peculiar difficulties in the way of direct proof, it may be established inferen-
tially or, by the more customary phrase, circumstantially.
34. [Classification of Facts] ; Principal and Probative. 17 According to the
classification adopted by Bentham the distinction between a principal and an
evidentiary fact is that between a factum probandum and a factum probans.
The relation is not as to the proposition in issue but as to the two facts the
fact to be proved and the fact offered as proving or assisting to prove it. In
other words the principal fact is not a principal fact as related to the issue
but as related to the evidentiary or probative fact. " In every case, there-
fore, of circumstantial evidence, there are always at least two facts to be
considered 1. The factum probandum, or say, the principal fact the fact-,
the existence of which is supposed or proposed to be proved the fact evi-
denced to, the fact which is the subject of proof. 2. The factum probans
the evidentiary fact the fact from the evidence of which that of the factum
probandum is inferred.
An anomahj of code pleading 'may make such a statement inaccurate. As
contrasted with common law pleading and statutory pleading which adopts
common law pleading as its basis, code pleading, distinctively so called, states
14. 1 Chamberlayne, Evidence, 50. 17. 1 Chamberlayne. Evidence, 51, 52.
15. Best, Ev., 13 Bentham, Rationale of Jud. Ev., bk. V, c. 1.
16. Rationale of Jud. Ev., bk. I, 50.
35,36 FACTS. 14
the constituent rather than the component facts. This circumstance must be
kept constantly in mind while dealing with the rulings of certain courts. 18
The ultimate facta probanda . are these constituent facts. Here the line of
proof the proper subject of evidence ceases. 19 Deliberative facts, in the
original significance of the term, comprise that species of judicial evidence
which assists the tribunal in weighing the truth of a party's contention or the
credibility of the witnesses or other proof by which it is established. Delib-
erative facts enable the court or jury to exercise adequately and accurately the
function of judging. They explain, elucidate or qualify the probative or res
gestce facts in such a way as to determine the evidentiary weight that shall be
accorded them. They are placed, as it were, in the mental scales, together
with the probative or res gestce facts to assist in striking the proper balance.
Such facts are probative ; but possess that slight degree of probative relevancy
which may properly be spoken of as deliberative.
35. [Classification of Facts]; States and Events. 20 Bentham distinguishes,
as a classification of facts, between events and states of things. 21 Best adopts
the same distinction and assigns Bentham's reasons for making it. 22 " By an
event," says Best, " is meant some motion or change considered as having come
about either in the course of nature or through the agency of the human will,
in which latter case it is called an act or action. The fall of a tree," he goes
on, " is an event, the existence of a tree is a state of things, but both are alike
facts." The essential point of difference here indicated is that between mo-
tion and rest. Whatever embodies motion is an event ; that which is attended
by a condition of rest is a state of things. Such a distinction one may ven-
ture to observe, with deference to these two eminent authorities who have
placed the students of the law of evidence under such heavy obligations, is, in
reality, superficial and inaccurate.
From the standpoint of the law of evidence, however, the distinction will
continue to be of importance. It need not be pointed out that only facts,
however numerous or complicated, which constitute to the observer, whether
a witness or the tribunal itself, present existences or states of things, can be
the subject of perception and, consequently, of personal knowledge. Com-
pleted events can be learned only by information derived from others results
of their past perception of what were to them, at that time, continuing states of
things.
36. Relevancy. 23 The relation between a factum probans and a factum
probandum by virtue of which of which the former tends to establish the exist"
18. An "ultimate or issuable fact" is one 19. Caywood v. i-arrell. 175 111. 480, 51
essential to the claim or defense, and which N. E. 775, 776 (1808).
cannot be stricken from the pleading without 20. 1 Chamberlayne, Evidence, 53.
leaving it insufficient. Meyer v. School Dist. 21. Rationale, Jud. Ev., bk I, 47.
No. 31, 4 S. D. 420, 57 N. W. 68, 69 (1893). 22. Best, EV., 13.
23. 1 Chamberlayne, Evidence, 54-64.
1." RELEVANCY. 36
ence of the latter is logical relevancy. Objective relevancy is a relation aris-
ing in the world of matter, as distinguished from the realm of mind. Subjec-
tive relevancy deals with the realm of mind. It is chiefly confined, in its
operation, to judicial evidence, 24 i. e., to the oral statements, the testimony
of witnesses, given in court, or the written declarations of the author of a
document. Relevancy is a state of relation. Unless and until conditioned, it
may well be regarded as a link connecting any given fact in point of time, with
varying degrees of remoteness, with all other facts, prior or subsequent, and in
all directions of space. The proponent may start his proof of a material res
gestce fact as far back over the links of the chain of causation as the court,
under all the circumstances of the case, shall deem not too remote to be helpful
to him or the jury. He may then prove the existence of the several links in the
chain until the ultimate factum probandum, the res gestce fact is reached.
This is the direct line of proof, the direct lineal relevancy. Any res gestce
fact may be proved in this way. Establishing the direct line of proof, in and
of itself, makes other potentially direct relevancy indirect or collateral. It is
as natural and inevitable as that laying out and constructing a road should
create sides for it. Other relevant relations persist but in a subordinate, col-
lateral and incidental capacity. As Frederick Pollock says : " Facts may be
relevant to one another not only when they are links in the same chain, but
when they are links in two chains having a common link in some other part of
their length ; that is, when they are effects of the same cause or causes of the
same effect. Relevancy is a question of logic, with which law, either in its
substantive or adjective form has nothing to do. The only test is that of
experience ; and to follow it, presents in practice, little, if any, difficulty except
the question of what degree of probative force may be deemed by a presiding
judge helpful to himself and to the jury. The probative relation of a delib-
erative fact to the existence of one in the res gestce may well be spoken of as
deliberative relevancy. It is a relation of logical relevancy where the con-
nection between the evidentiary and principal fact is a slight one. All rele-
vancy is not, however, that of logic.
Two inquiries at once arise: ' (1) What is the nature of the relevancy exist-
ing between the constituent and the component facts ? (2) What is the nature
of the relevancy which exists between the component facts or expressions of
fact and the right or liability asserted or denied ? In answering them, it will
at once occur to the mind ; that an entirely distinct element has been added to
the logical relevancy, based on experience, which has been hitherto dominant
in establishing the res gestce from which. the constituent facts have been
selected or inferred ; and that this new element furnishes the selective prin-
ciple in determining which of the res gestce facts are material to the component
facts and so are constituent, of the right or liability. It so becomes clear that
this new element is the substantive or positive law of the subject which confers
24. Summerour v. Felker, 102 Ga. 254, 29 S. E. 448, 450 (1897).
37 FACTS. 16
the right or imposes the liability. Such a rule is entirely outside the logic of
experience, is arbitrary, of legal rather than mental allegiance and relations.
The establishment of the proposition in issue by the correspondences between
the constituent and .the component facts is determined, in pan at least, by legal
reasoning, with which logic has no exclusive function. This is, so far as pos-
sible, within the inviolable province of the jury the judging of their evi-
dence. To this form of relevancy, no designation seems more appropriate than
that of legal or constituent relevancy. Legal relevancy imports the possi-
bility of legal reasoning. The relation between the constituent and the com-
ponent facts and the further step from the component facts to the truth of the
main proposition in issue is determined by this legal reasoning. Reasoning
from probative to constituent facts is thus seen to be a conclusion of fact, while
any reasoned result from the constituent or res gestce facts is a matter of
legal reasoning. 25 This class of reasoning is merely reasoning in general
motivated and conditioned by a rule of substantive law.
37. Constitutionality of Statute declaring Effect of certain Facts. It is not
competent for the Legislature to declare that affidavits of the shipper as to the
amount of grain carried is conclusive on the carrier. The Legislature may
declare rules of evidence, change the burden of proof, or declare that a fact
from which an inference as to the existence of another fact may reasonably be
drawn should be regarded as evidence of the latter fact but it is not compe-
tent for the Legislature to declare that the existence of the first fact shall con-
clusively establish the existence of the latter. 26
25. Nolan v. New York, N. H., etc., R. Co., 26. Shelabarger Elevator Co. v. Illinois
70 Conn. 159, 39 Atl. 115, 43 L. R. A. 305 Central R. Co., 278 111. 333, 116 N. E. 170,
(1898). L. R. A. 1917 E 1011 (1917).
CHAPTER III.
LAW AND FACT.
Law defined, 38.
A divided tribunal, 39.
Who should apply the law, 40.
judge authoritatively announces rule of law, 41.
jury ascertain constituent facts, 42.
application of law to constituent facts, 43.
Coke's maxim considered, 44.
General verdicts, 45.
More rational expedients, 46.
agreed statements of fact, 47.
advantages to be expected, 48.
special verdicts; statutory, 49.
special interrogatories; common law, 50.
special interrogatories; statutory, 51.
administration by the court, 52.
Matters of argument, opinion or judgment, 53.
Matter of law, 54.
Meaning of words, 55.
The use of reason, 56.
Construction of documents, 57.
Construction of oral contracts, 58.
Demurrers to evidence, 59.
Certainty of law ; rulings on facts, 60.
Trial by inspection, 61.
38. Law Defined. Law may, for municipal or domestic judicial purposes,
be defined as a rule of conduct prescribed by the sovereign of the forum upon
its subjects and enforced by a sanction. 1
39. A Divided Tribunal. In considering the relation between the respec-
tive provinces of judge and jury, at common law, in an English or American
court, in respect to the distinction between " matter of law " and " matter of
fact," it may be said, in general, that it is error to instruct the jury that they
are to judge the law 2 or of its constitutionality. 3 While the contrary has been
1. 1 Chamberlayne, Evidence, 66. Ohio 424 (1842): 1 Chamb., Ev., 67, n. 2
2. Sweeney v. State, 35 Ark. 586, 001 and cases cited.
(1880); Hamilton v. People, 29 Mich. 173, 3. Com. v. Anthes. 5 Gray (Mass.) 186
189-193 (1874); Montgomery v. State, 11 ( 1855) ; Pierce v. State, 13 N. H. 537 (1843).
17
40,41 LAW AND FACT. 18
at times held, 4 the view that even in criminal cases the jury are to receive and
applv the rule of law as announced by the court is supported by the great
weight of authority. 5 With the policy of the law the jury are not concerned. 6
40. Who Should Apply the Law. Before it can be ascertained by the tri-
bunal as to whether the right or liability asserted or denied in the ordinary
judicial action can be regarded as established or shown not to' exist, three
steps, one of law, one of logic and one partly of law and partly of logic, i.e.,
of legal reasoning, must be taken by the tribunal, or one of its component parts.
That is to say, (1) a rule of law must be formulated and announced; (2) the
ultimate facts must be ascertained; (3) the rule of law must be applied to
these ultimate constituent facts and determine in this way whether the right
or liability has been established. 7
41. [Who should apply the Law] ; Judge Authoritatively Announces Rule
of Law. It is the universally recognized duty of the jury, 8 even in criminal
cases, 9 to follow the rulings of the judge as to matter of law. 10 These instruc-
tions as to rules of law the judge will give so far as required by the state of the
evidence, either sua sponte, of his own motion, 11 or at the request of the
parties, 12 even in criminal cases. 13 This, for the purposes of the trial, is
authoritative; revision or correction, so far as needed, 'is the work of other
judges, nothing of the kind being allotted to the jury. 14
Civil Cases. As quasi matter of fact, the jury have been considered, in a
few cases, as entitled to find the laW to be different from that announced to
them by the court, should the law be one of local nature. 15 This may be re-
garded as untenable. 16
Criminal Cases. Juries are not judges of the law in criminal cases. 17
Connecticut permits this. State v. Thomas, (1845) ; Montgomery v. State, supra; Nels v.
47 Conn. 546, 36 Am. Rep. 98 (1880). State, 2 Tex. 280 (1847).
4. Infra, 41, 45; 1 Chamb., Ev., 71. 13. Montee v. Com., 3 J. J. Marsh. (Ky.)
86. 132 (1830) ; 1 Chamb., Ev., 69.
5. Washington v. State, 63 Ala. 135, 35 Am. 14. Hamilton v. People, supra; No inde-
Rep. 8 (1879); Com. v. Rock, 10 Gray pendent examination into the law is per-
(Mass.) 4 (1857); Hamilton v. People, 29 missible in the jury-room. Newkirk v. State,
Mich. 173, 189 (1874); Duffy v. People, 26 27 Ind. 1 (1866); Merrill v. Xary, 10 Allen
X. Y. 588 (1863); 1 Chamb.,' Ev., 67, n. 6 (Mass.) 416 (1865); Harrison v. Hance, 37
and cases cited. Mo. 185 (1866) ; State v. Smith, 6 R. L. 33
6. State v. Buckley, 40 Conn. 247 (1873); (1859). Improper conduct in using law
State v. Miller, 53 Iowa 154, 4. N W. 900 books in the jury-room does not require that
(1880). the verdict should be set aside. State v.
7. 1 Chamberlayne, Evidence, 68. Hopper, 71 Mo. 425 (1880); People v. Gaff-
8. Higginhotham v. Campbell, 85 Ga. 638, ney, 14 Abb. Prac. (N. Y.) 37 (1872).
11 S. E. 1027 (1890). 15. Sparf v. U. S., 156 U. S. 51, 110, 15
9. Infra. 140; 1 Chamb., Ev., 71. S. Ct. 273 (1895).
10. Council v. Teal, 122 Ga. 61, 49 S. E. 16. State v. Gannon, 75 Conn. 206, 52 Atl.
806 (1876) ; Com. v. Rock, supra 727 (1902) ; Com. v Porter, supra; State v.
11. State v. Stonum, 62 Mo. 596 (1876). Hodge, 50 N. H. 510 (1869) : 1 Chamb., Ev.,
12. Com. v. Porter, 10 Mete. (Mass.) 263 70, n. 3 and cases cited.
17. Townsend v. State, 2 Black (Ind.) 151
19 JUDGE ANNOUNCES LAW. 41
Double Jeopardy. In criminal cases, the court may direct a verdict for
the defendant but not against him. 18 The entire power of the jury to deal
with the rules of law in any case is incidental to their right to render a gen-
eral verdict. 19 The peculiarity in criminal cases is this: that wh*ere such a
general verdict is one of acquittal, the judge cannot set it aside. 20 Under an
almost universal constitutional provision, one accused of crime cannot twice be
placed in jeopardy for the same offence. Changed social conditions seem
greatly to have impaired the basis of public policy upon which the rule orig-
inally rested. 21 The fact of the provision against double jeopardy has given
rise to the conception that as the work of the jury in acquitting contrary to the
rule of law formulated by the court could neither be prevented, revised, -nor
punished, 22 therefore, they had a right to disregard the instructions of the
court. " This power, instead of being called a power to judge of the law,
should rather be regarded as a power to set aside the" law in a given instance. 23
Such is the general view of American courts who very properly distinguish
sharply between a right and an uncorrectible abuse of power. 24
Public Policy. The rule of law laid down by the court may be the sole
protection of innocence. A lawless jury may be as dangerous to a person
accused of crime though innocent as a lawless mob. 25 " If the court had no
right to decide the law, error, confusion, uncertainty and licentiousness would
characterize the criminal trials, and the safety of the accused might be as
much endangered as the stability of justice certainly would be." 26
Confusion of Law. To permit casual bodies of twelve untrained men, se-
lected by lot from the community, to construe the law, would introduce such
an element of confusion as to what that law is as would amount to an intoler-
able abuse and degradation of the administration of justice. 27 More than this :
under such circumstances, " Jurors would become not only judges but legis-
lators as well." 28 Xor is this all. " If the jury were at liberty to settle the
law for themselves, the effect would be, not only that the law itself would be
(1828); Com. v. Anthes, supra; Hardy v. vided a punishment of the jury for false
State, 7 Mo. 607 (1842); State v. Hodge, verdicts by way of attaint. Co. Litt., 155b,
supra; Duffy v. People, supra; Com. v. Me- 228a.
Manus, 143 Pa 64. 21 Atl. 1018, 22 Atl. 761 23. 2 Thomp. on Tr., 2133.
(1891) : Sparf v. U. S., supra. 24. State v. Ford, 37 La. Ann. 443 (1865) ;
CONTRA: Montee v. Com., supra; State U. S. v. Greathouse, 4 Sawy. ( U. S.) 457,
v. Jurche, 17 La. Ann. 71 (1865): State 464, 2 Abb. 364 ( 1863) ; 1 Chamb., Ev., 72,
v. Snow, 18 Me. 346 (1841) ; Drake v. State, n. 7 and cases cited. CONTRA: Kane v.
30 N. J. L. 422 (1863); Nelson v. State, 2 Com., 89 Pa. 522 (1879).
Swan (Tenn.) 482 (1852); State v. Croteau, 25. Pennsylvania v. Bell. Add. (Pa.) 156,
23 Vt. 14 (1849). Generally, see 1 Chamb., 160 (1793): U. S. v. Battiste, 2 Sumn. (U.
Ev., 71 and cases cited. S.) 240 (1835) ; Hamilton v. People, 29 Mich.
18. Infra, n. 20. 173 (1874).
19. Devizes v. Clark, 3 A. & E. 506 (1835) ; 26. Montee v. Com., supra; 1 Chamb., Ev.,
1 Chamb., Ev., 72, n. 2 and cases cited. 73.
20. King- v . Jones, 8 Mod. 201, 208 (1724). 27. Hamilton v. People, supra: Duffy v.
21. Duffy v. People, 26 N. Y. 588, 591 People, supra; Pennsylvania v. Bell, supra.
(1863). 28. Duffy v. People, supra.
22. Attaint. The earlier practice pro-
42-44 LAW AND FACT. 20
most uncertain, from the different views which juries might take of it, but, in
case of error, there would be no remedy or redress of the injured party; for the
court would not have any right to review the law as it had been settled by the
jury. Indeed, it would be almost impracticable to ascertain what the law, as
settled by the jury, actually was." - !l
Differing Views. In several jurisdictions more powers in dealing with
the rule of law than are generally adjudged to be in the public interest have, by
statute or constitution, been conferred upon the jury. 3 " The same results
authorizing the jury to invent or improvise a rule of law for themselves, in
criminal cases, have been occasionally effected by judicial decision/ 51 Among
these jurisdictions are Illinois, 32 Indiana, 33 Louisiana/' 4 Maine, 3 * Massa-
chusetts, 36 Pennsylvania, 37 Tennessee 38 and Vermont/' 9 A growing tendency
is, however, observable among such courts to bring their rulings more nearly
into correspondence with the general weight of authority. 40
42. [Who should apply the Law] ; (2) Jury Ascertain Constituent Facts.
Speaking generally, the second step that of ascertaining the constituent
facts is admittedly for the jury. 41
43. [Who should apply the Law] ; (3) Application of Law to Constituent
Facts. Upon a natural scientific division of matter of law and matter of fact,
the jury should find simply the constituent facts. To the judge should fall the
duty of announcing the rule of law and applying it to the constituent facts
fdund by the jury. In other words, both the rules of law and their applica-
tion judicial knowledge 42 and legal reasoning 43 are "matter of law."
44. Coke's Maxim Considered. 44 It may be accepted as settled that what-
29. State v. Ford, supra; Nicholson v. Com., 36. Com. v. Porter, .10 Mete. (Mass.) 263
96 Pa. 503 (1880) ; L. S v. Battiste, supra; (1845).
1 Chamb., Ev.. 74, n. 3 and cases cited. 37. Kane v. Com., 89 Pa. 522 (1879).
30. Hudelson v. .State, 94 Ind. 426 (1883) ; 38. Hannah v. State, 75 Tenn. (11 Lea) 201
State v. Ford, supra; State v. Miller. 75 X. C. ( 1883) .
74 (1876); R. S. Ind. 1881, 64, 1823. In 39. State v. Croteau, 23 Vt. 15 (1849).
Georgia a code provision is as follows: For full list of cases, see 1 Chamb., Ev., 75
" The jury in all criminal cases shall be and notes.
the judges of the law and the facts." Const. 40. State v. Ford, supra.
Ga., art. I, 2. par. I (1877); Ga. Code 41. Fowler v. State. 85 Ind. 538 (1882);
1882, 5019. See 1 Chamb., Ev., 75, n. 1 Robbins v. State, 8 Ohio St. 131, 14b, 166
and cases cited. (1857) ; U. S. v. Greathouse, supra; 1 Chamb.,
31. An erroneous instruction by the court Ev.. 76. This is the rule even in states
will, even in states where the jury are judges which by constitutional provision make the
of the law, beg round for a new trial. Clem jury judges of both law and fact in criminal
v. State, 42 Ind. 422, 447 (1873); State v. causes. State v. Tisdale, 41 La. Ann. 338, 6
Rice, 56 Iowa 431, 9 N. W. 343 (1881). So. 579 (1889).
32. Adams v. People, 47 III. 376 (1868). 42. Infra, 315 et seq.; 1 Chamb., Ev.,
33. Stout v. State, 96 Ind. 407 (1884). 570 et seq.
34. State v. Vinson. 37 La. Ann. 792 43. Supra, 36; 1 Chamb., Ev., 59, 63.
<1885). 44. 1 Chamberlayne, Evidence, 78-84.
35. State v. Snow, 18 Me. 346 (1841).
I
21 PROVINCE OF JUDGE AXD JUHY. 44
ever be the proper relation between law and fact on a jury trial, no such simple
division exists as that all matters of law are for the judge ; all matters of fact
are for the jury, which has had a wide vogue in England 45 and America. 46
The so-called maxim ad quaestionem facti non respondent judices, ad quaes-
tionem juris non respondent juratores was a favorite with Lord Coke and
was by him 47 attributed to Bracton. It was, however, never more than par-
tially true.
"Ad Quaestionem Facti Non Respondent Judices." So far as regards the
first branch of the statement that judges do not decide questions of fact
the announcement is so transparently false as not to be essentially misleading. 48
The only facts with which the jury is concerned are constituted facts, i.e., ma-
terial facts in the res gestae relevant to the issue raised by the pleadings ; 49 or,
where there are no pleadings, to the existence of the right or liability involved
in the inquiry. Other questions of fact are normally for the court.
Incidental Findings. On any trial u carried on at once before court and
jury " 50 questions of fact are incessantly arising. Whether an expert is suf-
ficiently qualified to make his '' opinion " of value to the jury; a document has
been " attested " ; a confession offered in evidence is " voluntary '' ; whether
the nonproduction of a document has been sufficiently explained these and
other subsidiary or preliminary questions of fact 51 can, under the rules of
common law procedure, be decided only by the judge. 52
Preliminary Facts Conditioning AdmissibiUty. It may happen that the
admissibility of particular testimony is dependent upon or conditioned by the
existence of a preliminary fact. 53 Where a serious conflict arises upon the
evidence as to the existence of a conditioning or qualifying fact, the judge may
adopt one of several expedients: (1) He may hear the evidence and adjudi-
cate as to the existence of the qualifying fact, 54 hearing the evidence as offered
by both sides, and not in the presence of the jury. 5 " When he has decided
whether the evidence in support of admissibility is such that the jury might
rationally act on it, he will proceed as in a case where the evidence is uncon-
45. \\elstead v. Levy, 1 Mood. & Rob. 138 51. Zipperlen v. Southern Pac. Co., 7 Cal.
(1831). App. 206. 93 Pae. 1049.
46. Scott v. People, 141 111. 195, 30 N. E. 52. Fail-bank v. Hughson, 58 Cal. 314
329 (1892); Com. v. Robinson, 146 Mass. (1881); Com. v. Robinson, supra; Semple v.
571, 16 X. E. 452 (1888) ; Strauas V. Kansas, Callery, 184 Pa. 95, 39 Atl. 6 (1898); 1
etc.. R. Co., S6 Mo. 421 (1885) : New Jersey Chamb., Ev., 80. n. 3 and cases cited.
Steamboat Co. v. Xew York City, 109 N. Y. 53. As, for example, whether a witness is
621. 15 X. E. 877 (1888); 1 Chamb., Ev., disqualified by interest, Bartlett v. Hoyt, 33
78, n 2 and cases cited. X. H. 151. 165 (1856) : whether one to whom
47. Isaak v. Clark, Rolle, 59; 2 Bulstr. 314 a communication was made was. at the time.
(1614). ' a legal adviser. Hartford F. Ins Co. v. Rey-
48. Thayer, Prelim. Treat. 185: 1 Chamb., nolds, 36 Mich. 502 (1877); or the like.
Ev., 79 54. Cleve v. Jones. 7 Exch. 421 (1852).
49. State v. Hodge, 50 X. H. 510. 522 55. State v. Shaffer, 23 Or. 555, 32 Pac. 545
(1869i : 31. supra; 1 Chamb., Ev., 47. (1893).
50. Com. v. Porter, 10 Mete. (Mass.) 263,
284 (1845).
44 LAW AND FACT. 22
troverted. 56 (2) He may ask the jury to find, specifically, as to the existence
of the qualifying fact ; and, upon receiving their report, proceed as where the
evidence is uncontroverted. Or, (3) he may leave the entire matter to the
jury, to whom it must ultimately go on the question of weight, under suitable
instructions directing them as to their proper course in the event that they find,
or fail to find, the existence of the qualifying fact. 57
Function of the Jury. Common practice permits a presiding judge to sub-
mit the evidence in its entirety to the jury, instructing them to regard or dis-
regard it according as they shall find as to the existence of the preliminary
fact upon which its admissibility is dependent. 58 But making such prelimi-
nary findings is not a recognized and essential part of the jury's duty.
" Ad Quaestionem Juris Non Respondent Juratores." The second division
of the rule that the jury are not to answer questions of law is more nearly
accurate than is its associated branch of the rule. Their power of applying the
rule of law announced by the judge to the constituent facts found by them and
of returning a general verdict 59 seems, however, to approximate closely to
dealing with a question of law. As is more fully stated elsewhere, 60 it is the
substantive right of a party to have the judge exercise his allotted functions.
He will not, therefore, as a rule, submit questions of law to the jury.* 51
Collateral Rulings. Where the ruling as to the law concerns a collateral
matter, as in connection with the admissibility of evidence, statements as to the
issue raised by the pleadings, 62 whether the evidence is sufficient in law to sup-
port a verdict 3 or the like, the power and duty of the court to make an authori-
tative ruling for the purposes of the case are unchallenged in any quarter. 64 The
jury may refuse to follow evidence admitted by the judge, but they cannot dis-
regard it. 65 For the court to instruct the jury that they may so act is error. 66
56. Infra, 179 et seq.; 1 Chamb., Ev., App.) 92 S. W. 439 (1906) ; 1 Chamb., Ev.,
385 et seq. It has been held that the pro- 82.
priety of the judges finding in this connec- 59. Infra, 45; 1 Chamb., Ev., 86.
tion will not be reviewed in an appellate court. 60. Infra, 203; 1 Chamb., Ev., 409.
Com. v. Robinson, supra. It has been sug- 61. Thomas v. Thomas, 15 B. Mon. (Ky.)
gested that in a criminal case, the court, to 178 (1854); Hickey v. Ryan, 15 Mo. 63
find a fact against a prisoner, must be satis- (1851) ; 1 Cham.. Ev., 84, n. 3 and cases
tied of the truth of the matter beyond a rea- cited.
sonable doubt. Lipscomb v. State, 75 Miss. 62. Missouri Coal & Oil Co. v. Hannibal,
559, 23 So. 210 (1898). The better view is etc., R. Co., 35 Mo. 84 (1864).
that no such limitation on the court's action 63. Harris v. Woody, 9 Mo. 113 (1845) ;
exists. Com. v. Robinson, supra. Cole v. Hebb, 7 Gill & J. (Md.) 20 (1835).
57. 1 Chamb, Ev., 81. The reason as- 64.' Carter v. Bennett, 6 Fla. 214 (1855);
signed for this course is that it "does not Gorton v. Hadsell. 9 Cush. (Mass.) 508
properly belong to a judge to decide upon the (1852) ; 1 Chamb., Ev., 85, n. 4 and cases
truth of matters which have come out during cited.
the examination of witnesses who conflict." 65. Com. v. Knapp, 10 Pick. (Mass.) 477,
Hartford F. Ins. Co. v. Reynolds, supra. 496 (1830).
58. Central of Ga. Ry. Co. v. Harper, 124 66. Thomason v. Odum, 31 Ala. 108 (1857) ;
Ga. 836, 53 S. E. 30] (1906) : Com. v. Cul- Robinson v. Ferry, 11 Conn. 460 (1836) ; Rat-
ver, 126 Mass. 464 (1879). See American liff v. Huntley, 5 Ired. (N. C.) 545 (1845).
Nat. Bank v. First Mat. Bank (Tex. Civ.
2:5 GENERAL VERDICTS. 45
45. General Verdicts. 67 The result announced in a general verdict is a
composite one, blending a decision as to certain constituent facts with the appli-
cation of a rule of law to them. 68 That it is the duty of the jury in thus
blending the fact and the law into a composite result to take the rule of law to
be as stated by the presiding judge is entirely settled. 69 The right of the jury,
by returning a general verdict, to make for themselves the application of the
rule of law as stated by the courts to the constituent facts ascertained by them
is equally settled. 70 They may, in all cases, civil 71 or criminal, 72 return a
general verdict. In the absence of regulation by statute. 73 the jury may decline
to return any other verdict than a general one, 74 although the court may have
required special findings. It follows from this power and practice of the jury
to return a general verdict that the whole matter of law as well as of fact must
be stated and explained to the jury so that they may fully understand and
apply it to the facts. 75 Fox's Libel Act set this matter as to the right of a
jury to return a general verdict at rest, so far as England itself was concerned,
by expressly providing that on such prosecutions it should be the right of the
jury to return a general verdict, passing not only upon the facts but applying
the rule of law to them. The rule essentially of administration or, at most of
procedure, upon this point has been inscribed into most of the constitutions of
the American States, it being provided, for example, in Pennsylvania, that " in
all indictments for libel, the jury shall have the right to determine the law and
the facts under the direction of the court, as in other cases." 77 Other juris-
dictions, with great uniformity, have enacted similar provisions, statutory 78
or constitutional. Very strong arguments in favor of the contrary view, in
point of administrative principle, may be found, among the American courts. 79
Matter of Law for the Jury an Incidental Power. Only when the jury are
themselves required to find the constituent facts and in connection with the dis-
charge of such a duty may the jury apply the law to the facts. Xo practice
exists under which the jury are to apply the rule of law, announced by the
court, to constituent facts found b\ others, or to such facts when admitted, not
67. 1 Chamberlayne, Evidence, 86-88. 263 (1845): Com. v. McManus. 143 Pa. 64
68. Gibson v. Hunter, 2 H. Bl. 187 (1793). (1891) : 1 Chamb., Ev., 86.
69. Supra, 41; 1 Chamb., Ev.. 69. 76. Stat. 32 Geo. Ill, c. 60.
70. Kane v. Com., 89 Pa. 522 (1879); 1 77. Const. Pa., Art, 1. 7
Chamb.. Ev., 86, n. 5 and cases cited. 78. People v. Croswell, 3 Johns. Cas. (N.
71. Com. v. Porter, 10 Mete. (Mass.) 263 Y.) 337 (1804).
(18451. 79. Prominent among these is the opinion
72. King v. Jones, 8 Mod 201 (1723). See of Chief Justice Lewis, in which Chief Jus-
also. Erving v. Cradock. Quincy (Mass.) 553 tice Livingston concurred (People v. Croswell.
(1761) ; Georgia v. Brailsford, 3 Dall (U. S.) supra}, where, after an elaborate review of
1 (1794). the authorities, the conclusion is reached
73. Infra, 49 et seq.: 1 Chamb., Ev.. that Lord Mansfield was right in holding that
96. !>8 et seq. judges had power to determine, after the
74. Devizes v. Clark, 3 A. & E. 506 (1833) fact of publication has been found, as to
75. higginbotham v. Campbell, 85 Ga. 638 whether a given publication was or was not
(1890): Cain v. Porter, 10 Mete. (Mass.) libellous.
>j 4:0,47 LAW AXD FACT. 24
disputed, or established beyond the point of successful contradiction. 80 The
rule is well-nigh universal that, where the constituent facts are found and all
which remains to determine the action of the court is the application of the
measuring rule of law, the application of this rule is a question of law and
within the function of the judge. 81
46. More Rational Expedients. 1 " 2 The common law judge is not compelled,
in all cases, to work out the substantial rights of the parties through the expen-
sive and dilatory ,- method of granting new trials. In certain cases the more
normal relations of the judge and jury are maintained the jury finding
some or all of the constituent facts and the judge applying the rule of law. 83
Inferences of Fact. A main difficulty encountered by a court in applying
the rule of law to facts found by a jury, or agreed upon by the parties, is that
certain inferences of fact, so called, still remain to be found. The rule of law
can properly, as has elsewhere been said. 84 be applied only to the constituent
facts, 85 the ultimate facts so called. But it frequently happens that th jury
in finding the facts or the parties in agreeing on them rest content with finding
the probative facts 86 without proceeding to ascertain the constituent facts to
be proved by these probative ones. Clearly these inferences from the existence
of the probative to that of the constituent facts which they tend to establish is
for the jury to draw, or, in case of a statement of agreed facts, for the agree-
ment to cover. 87
47. [More Rational Expedients] ; Agreed Statements of Fact. 88 Questions
of fact may be submitted to the court in the form of an agreed statement. The
function of applying the law to the facts is thus transferred to the judge.
Where only the probative facts are agreed upon, unless there is a provision that
the court may draw the inferences from the probative to the constituent facts,
the task is to apply the rule of law to the probative facts. 89
Power to Draw Inferences; Express Authority Needed. It has been deemed
by certain courts advisable 90 and even necessary 91 that power to draw infer-
80. 1 Chamb., Ev., 88. See discussion of tempt takes place in the presence of the court
the question of Matter of .Law for the Jury, (Infra, 112; 1 Chamb., 255), the judge is
1 chamb., Ev., 87, 88. the percipient witness of all the constituent
81. Illustrative Instances. It is not ma- facts In all such cases, it is not questioned
terial whether the right of the jury to ap- that it is for the judge to apply the law.
ply the law is excluded because the constitu- 82. 1 Chamberlayne, Evidence, 89, 90.
ent facts are agreed by the parties, as in 83. 1 Chamb., Ev., 89.
agreed statements (Infra, 47 ; 1 Chamb., 84. Supra, 36: 1 Chamb., Ev., 61.
Ev., 91) demurrers to evidence (Infra, 59; 85. Supra, 31: 1 Chamb., Ev., 47.
1 Chamb., Ev., 139) or the like: or because 86. Supra, 34; 1 Chamb., Ev., 51.
the facts are uncontroverted, as where the 87. 1 Chamb., Ev. 90.
court orders a verdict where only one outcome 88. 1 Chamberlayne, Evidence, 91-94.
is rationally possible, (Infra. 184; 1 Chamb., 89. 1 Chamb , Ev., 91.
Ev., 390) or, as in the case of the construe- 90. Cole v. Northwestern Bank, L. R. 10,
tion of documents (Infra, 57 et seq. ; 1 C. P. 354 (1875).
Chamb., Ev., 128 et seq.), or where con-
25 RATIONAL EXPEDIENTS. 48,49
ences other than those necessary, as matter of law,? 2 should be conferred totidem
verbi if the court is to exercise it. Otherwise the province of the judge is
limited in the original instance, to finding the effect of the facts thus stated on
the record as matter of law 93 and that of an appellate court to saving whether
the ruling was right, or, if erroneous, what it should be; not, as in case of a
finding of fact, as where the court is permitted to draw inferences of fact, 94
whether there was any evidence warranting a finding. 95
A Different View. The action of the parties may reasonably be regarded as
implying liberty to use a certain discretion in drawing inferences from the
facts stated. Even, therefore, in the case of stipulations where no express
power of drawing inferences of fact has been conferred, certain judges have
asserted and exercised the right of drawing these inferences, 96 while declining
to exercise the same power in dealing with the facts found by a jury in the
form of a special verdict. 97
Effect of Agreement. But where a case is tried on an agreed statement of
facts, it is not necessary that the courts should make separate findings of fact
and law. 98 Where the facts are agreed on they are equivalent to facts found
by the court. 99 Though findings of fact are not necessary to the validity of a
judgment, the court is not thereby precluded from making such findings. 1
48. [More Rational Expedients] ; Advantages to Be Expected. That the
jury should, in all cases, find the existence of all constituent facts about which
a dispute exists between the parties, leaving the court, in all cases, to apply the
rule of law, has certain attractive features as a satisfactory rule of adminis-
tration. 2
49. [More Rational Expedients]; Special Verdicts; Statutory. 3 The prac-
tice of rendering special verdicts is one of considerable antiquity. 4 The differ-
ence between a special verdict and the answers to special interrogations, con-
91. Schwartz v. Boston, 151 Mass. 226 mate fact in issue if it may be inferred from
(1890); Kinsley v. Coyle, 58 Pa. 461 the stipulated facts. Crisman v. Lanterman,
(1868) ; Byam v. Bullard, 1 Curt. C. C. (U. 149 Cal. 647. 87 Pac. 89 (1906).
S.) 100 (1852); 1 Chamb.. Ev., 92 and cases 97. Tancred v. Christy, 12 M. & W. 316
cited. (1843).
92. Later v. Haywood, 14 Ida. 45, 03 Pac. 98. Cincinnati, etc., Ry. Co. v. Hansford &
374 (1908): May hew v. Durfee, 138 Mass Son. 30 Ky. L. Rep. 1105, 100 S. W. 251
5S4 (1885). (1907).
93. Coffin v. Artesian Water Co., 193 Mass. 99* Anderson v. Messinger. 146 Fed. 929, 77
274. 79 X. E. 262 (1906); Schwartz v. Bos- C. C. A. 179, 7 L R. A. (X. S.) 1094 (1906).
ton, supra. 1. Towle v Sweeney, 2 Cal. App. 29. 83
94. Charlton v. Donnell, 100 Mass. 229 Pac. 74 ( 1905) .
(1868). 2. See discussion of the question in 1
95. Schwartz v. Boston, supra. Chamb.. Ev.. 95 and notes thereto, wherein
96. Jackson v. Whitbeck, 6 Cow. (X. Y.) the author advances si\ important advantages
632 (1827) ; Whitney v. Sterling. 14 Johns, to be expected from the rule.
(X. Y. ) 215 (1817). But see, contra, under 3. 1 Chamberlayne, Evidence, 96.
the Code, Clark v. Wise, 46 N. Y. 612 (1871). 4. First Xat. Bank v. Peck, 8 Kan. 660
It is the duty of the court to find an ulti- (1871); Ross's Case, 12 Ct. Cl. 565 (187.6).
50, 51 LAW AND FACT. 26
sidered elsewhere, 5 is obvious and fundamental. The interrogations inquire as
to the existence of one or more constituent facts.* 5 The special verdict finds
them all. 7 Xo special interrogatories can be propounded, as of right, by a
party when a special verdict is asked. 8 Should the jury have the option to
return either a special or a general verdict, they need return special answers
only in case they decide to return a verdict in general form. 9
50. [More Rational Expedients]; Special Interrogatories; Common Law.
The old practice of requesting special findings of fact has increased in popular-
ity with judges, 10 frequently acting under legislative sanction. 11 The right to
interrogate the jury, on returning a general verdict, as to the method in which
they reached their conclusion in certain particulars has been denied in Eng-
land, 12 and by courts in this country, in the absence of agreement by the
parties. 13 The practice, however, has obtained in certain sections of Amer-
ica. 14 If the ground assigned by the jury for their action could not support it,
the verdict is set aside. 15 Other courts have been bolder and have directly
submitted interrogations to the jury for them to answer. 16
51. [More Rational Expedients]; Special Interrogatories; Statutory. 17
Many states of the American Union have re-enacted, with some variation in
detail, the common law practice of submitting special interrogatories to the
jury. A typical statute is that of Indiana. 18
5. Infra, 51 et seq.; 1 Chamb., Ev., 98 by the verdict, it is not unusual to ask the
et seq. t J U1 T upon what principle it was found."
6. Hazard Powder Co. v. Viergutz, 6 Kan. Pierce v. Woodward, 6 Pick. (Mass.) 206
471, 486 (1870); Smith v. Warren, 60 Tex. (1828). See also, Roche v. .Ladd, 1 Allen
462 (1883). (Mass.) 436 (1861).
7. Housworth v. Bloomhuff, 54 Ind. 487 15. Parrott v. Thatcher, 9 Pick (Mass.)
(1876) ; Pittsburg, etc., R. Co. v. Spencer, 98 426 (1830). See Spurr v. Shellmrne, 131
Ind. 186 (1884) ; 1 Chamb., Ev., 96. Mass. 429 (1881). The answers to such in-
8. Chapin v. Clapp, 29 Ind. 614 (1868). terrogatories may also be used as part of a
9. Hendrickson v. Walker, 32 Mich. 68 bill of exceptions or on motion for a new trial
(1875). based on the insufficiency of the evidence.
10. Atchison. etc.. "Ry. Co. v. Morgan, 43 Monies v. City of Lynn, 11!) Mass. 273 ( 1876).
Kan. 1 22 Pac. 995 (1890); Maceman v. 16. McMasters v. West Chester County, etc.,
Equitable L. Assur. Soc., 69 Minn. 285, 72 Co., 25 Wend. (N. Y.) 379 (1841).
N. W. Ill (1897). 17. Chamberlayne, Evidence., 98-116.
11. 1 Chamb. Ev., 97. 18. '' In all actions, the jury, unless other-
12. Mayor of Devisees v. Clark, 3 A. & E. wise directed by the court, may, in their dis-
506 (1836). cretion. render general or special verdict; but
13. Allen, etc., Co. v. Aldrich, 9 Fost. (X. the court shall, at the request of either party,
H.) 63 (1854). Sucli consent has also been direct them to give a special verdict in writ-
held not to be necessary. Walker v. Sawyer, ing upon all or any of the issues; and in all
13 N. H. 191 (1S42) : See Barston v. Sprague, cases, when requested by either party, shall
40 X. H. 27 (1859). instruct them, if they render a general ver-
14. For example, the presiding judge may diet, to find specially upon particular ques-
ask the jury whether they read certain papers tions of fact, to be stated in writing This
improperly taken by them to their consulta- special finding is to be recorded with the
tion-room. Hix v. Drury, 5 Pick. (Mass.) verdict. . . . When the special finding of
296 (1827). "Where the judge is surprised facts is inconsistent with the general verdict,
27 RATIONAL EXPEDIENTS.
Criminal Cases Excluded. The enabling statutes do not, in the absence of
express language, apply to criminal cases. 19 In equity causes where the jury
is brought in to assist the judge no binding effect attaches to the findings. 20
Object of Special Findings. It has been said that the object of answers to
special interrogatories is to obtain an explanation of a general verdict, 21 and to
place upon record the details of this explanation. 22 If the jury finds simply
u general verdict, and it should happen later that the judge should be convinced
that he had given the wrong rule of law to the jury, the obvious available course
is to order a new trial. If the separate findings are before the judge on the
record, he may, however, order such a verdict as would have been rendered,
had the correct rule been given. 23 A special verdict or set of findings must set
forth the existence of all constituent facts necessary to the actor's case. 24
Thus is the emotionalism of the jury in part controlled. 25 Error may be recti-
fied by checking, by the knowledge furnished by separate findings, erroneous
inferences from the facts found ; 2ti a consideration of no small consequence
where any verdict is allowed to stand for which any logical basis can be
assigned from the evidence.- 7
52. [More Rational Expedients] ; Administration by the Court, 28 The court
may, with great propriety, exert its administrative powers so to formulate the
interrogations to the jury as to raise material questions, so framed as not to
confuse or mislead them 29 the object being to enable the judge to apply the
law to the constituent facts. 30 Where, therefore, the question asked is as to the
existence of a probative as distinguished from a constituent fact, it may prop-
erly be rejected. 31 The question should be specific, something more than a
mere application of a rule of law to a particular branch of the case. 32 In other
the former shall control the latter, and the 26. Morse v. Morse, 25 Ind. 156 (1865);
court shall give judgment accordingly" In- Cole v. Boyd, 47 Mich. 98 (1881).
diana Kev. St., 1881, 546, 547. 1 Chamb., 27. Buntin v. Rose, 16 Ind. 209 (1861).
Ev., 98. 28. Chamberlayne, Evidence, 101-116.
19. State v. Ridley. 48 Iowa 370 (1878) ; 29. Manning v. Gasharie, 27 Ind. 399, 409
People v Marion. 29 Mich. 32 ( 1874) . ( 1866) .
20. Jennings v. Durham, 101 Ind. 391 30. Plyler v. Pacific Portland Cement Co.,
(1884); Learned v. Tillotson, 97 N. Y. 1 (Cal. 1907) 92 Pac. 56.
(1884) ; 1 Chamb.. Ev., 99. Inferences of fact. If the constituent
21. llendrickson v. Walker, 32 Mich. 68 facts found by the jury are ambiguous, they
(1875). may be asked for a definite inference of fact
22. Dtirfee v Abbott, 50 Mich. 479 (1883). from them. Ft. Wayne Cooperage Co. v.
23. Moss v. Priest. 19 Abb. Prac (N. Y.) Page, (Ind. App. 1907) 82 N. E. 83. But
341, 1 Hob. 632 (1863). See Dempsey v they cannot be asked to draw a conclusion of
Mayor, etc., 10 Daly (N. Y.) 417 (1882); law.
Partridge v. Gilbert, 3 Duer (X. Y.) 184 31. Springfield Coal Min. Co. v. Gedutis,
(1854). 227 111. 9, 81 X. E. 9 (1907) [affirming judg-
24. Ehvood State Bank v. Mock, 40 Ind. ment. 127 111. App. 327 (1906)].
App 685, 82 X. F. 1003 (1907). 32. Trentman v. Wiley, 85 Ind. 33 (1882).
25. Morrow v. Commrs. Saline Co., 21 Kan.
484 (1879).
53 LAW AND FACT. 28
words, questions of mingled law and fact, as it is said, should not be permitted. 33
Of such a nature is the scope of a partnership. 34
On the other hand where the jury, in reply to a proper question state a mere
conclusion as to the law the answer may be disregarded.
That a fact is compound or complex is no ground for rejecting a tinding as
to it ;i5 but the question must be sufficiently specitic to be helpful and must
admit of a direct answer. 30 ISuch questions should be few in number, 37 in a
form approved by the court 3S and so drawn as to present a single material
proposition for the jury ' M and should be asked for before the arguments. 40
The answers should be full and unequivocal 41 and not in the alternative. 42
Qualifying expressions as " in our judgment " may be disregarded. 43
General verdicts cannot take the place of the special answers 44 which the
judge may require. 45 Special answers are without effect unless the ques-
tions were regularly submitted to them. 40 Usually the special answers will
prevail over general verdicts when they are inconsistent 4T if irreconcilably
so. 48 Granting a new trial sets .aside a special answer 49 but the special an-
swers may be used by the judge in deciding whether a new trial should be
ordered. 50
53. Matters of Argument, Opinion or Judgment. 51 Not all matters of fact
involved in the province of the jury are the subject of evidence. Within limi-
tations imposed by the rule of law which requires the exercise of reason, the
judging of the issue, the exercise of the reasoning faculty on the facts involved
in the case as to the truth of the proposition in issue or as to the existence of
any constituent fact is a function of the jury. A witness, therefore, is not at
liberty (1) to testify to the existence and nature of the rules of reasoning
33. Town of Albion v. Hetrfek, ; )0 Ind. 545 40. Plyler v. Pacific Portland Cement Co.,
(1883). (Cal 1907) 92 Pac. 56.
The construction of an unambiguous writ- 41. .Summers v. Greathouse, 87 Ind. 205
ing is of this nature. Comer v. Himes, 49 (1882).
Ind. 482 (1875) ; Symmes v. Brown. 13 Ind. 42. Peters v. Lane, 55 Ind. 391 (1876).
318 (1859). 43. Peters v. Lane, 55 Ind. 391 (1876).
34. Bonner Tobacco Co. v. Jennison, 48 44. Leavenworth, etc., R Co. v. Rice, 10
Mich. 4.-)0 (1882); Dubois v. Compan, 28 Kan. 426 (1872).
Mi<-h. 304 (1873). 45. L'rbanek v Chicago, etc., Ry. Co., 47
35. Howard v. Beldenville Lumber Co., Wis. 59 (1879).
(Wis. 1908) 114 X. W. 1114. 46. Hamilton v. ShoafT, 99 Ind. 63 (1884).
36. Plyler v. Pacific Portland Cement Co., 47. Plyler v. Pacific Portland Cement Co.,
(Cal. 1907) 92 Pac. 56. (Cal. 1907) 92 Pac. 56; New York, etc., R.
37. City of Indianapolis v. Lawyer, 38 Ind. Co. v. Hamlin, (ind. 1908) 83 X. E. 343
348 (1871) ; Atchison. etc., R. Co. v. Plunket, [judgment modified, 79 N. E. 1040 (1907)].
25 Kan. 188 (1881). 48. Woollen v. Wishmier, 70 Ind. 108
38. Ormond v Connecticut Mut. Life Ins. (1880).
Co., 145 N. C. 140. 58 S. E. 997 (1907). 49. Hollenbeck v. Marshalltown, 62 Iowa
39. Rosier v Barnes, 16 Ind. 502 (1861); 21 (1883K
City of Wyandotte v. Gibson, 25 Kan. 236 50. Atcliison, etc , R. Co. v. Brown, 33 Kan.
(1881). 757 (1885).
51. 1 Chamberlayne, Evidence, 117, 118.
29 MATTERS OF LAW. 54-56
applicable to the case; (2) to argue a proposition in issue or the inferences from
any fact in evidence, or (3) to state the effect which the evidence as to the
existence of any probative or constituent facts has produced in his mind.
What constitute the rules of sound reasoning, or as to what inferences should
properly and logically be drawn from the evidence as to the truth of proposi-
tions in issue, is within certain limits also a matter for the jury and is also
imposed by the substantive law on the judge.
^ 54. Matter of Law. 52 Consideration has thus been given to " matter of
fact, " as rather loosely used in the phraseology of judicial proceedings ; and as
to* the manner and extent to which, under the generally prevailing system of
English jurisprudence, issues involving matters of fact are decided by a jury.
Jt remains to turn attention to the many and important issues, or questions of
fact which are decided by the judge. While these matters of fact, grouped
under the heading of " matter of law," present the common feature that they
embody the use of legal reasoning, i.e., involve the application of the rule of
law to a set of facts, they yet present among themselves certain points of differ-
ence. Among them, for example, are the meaning of words and the general
requirement of the use of reason in extrajudicial as well as in judicial conduct,
especially in relation to certain branches of the substantive law. In addition
to these more general matters, it is the practice of the courts when certain sets
of constituent facts have been found by the jury, or where these are admitted
or not controverted, to apply to them the rule of law for themselves. A familiar
instance of this is in connection with the construction of documents.
55. Meaning of Words. 53 The meaning of words is equally a question of
fact, whether the meaning is of words taken separately of themselves, as defini-
tions or when the inquiry is as to the meaning in which they have been used
in a given context or under a certain set. of circumstances. In other words,
definition as well as interpretation presents a question of fact. The function
of defining words used in connection with rules of law necessarily, however,
fell to the court as part of its duty of administration as presiding officer of a
mixed tribunal charged by the sovereign with the work of administering jus-
tice. These definitions may well be so drawn as to exclude from the considera-
tion of the jury many inferences of fact otherwise permissible, and in this way
to take over into the custody of the judge the decision of numerous matters of
fact.
?; 56. The Use of Reason. 54 The power of the jury to deal with the facts as
measured by the rule of law given to them by the court for that purpose is not,
however, unlimited. Among matters of law, i.e., rules of legal requirement,
which still remain in the handling of the judge, is the requirement that the
52. 1 C hamberlayne. Evidence, 119. 54. 1 Chamberlayne, Evidence, 120a-127.
53. 1 Chamberlayne, Evidence, 120.
;>7 LAW AND FACT. 30
jurv must proceed according to reason, whether the reasoning is logical or legal.
The law in general requires that all should act reasonably and this issue of
reasonableness is frequently left to the jury. 55
Where the facts as to what is a reasonable time are established the question
is one of law. 50 In cases of negligence the same principle is applied that
where the facts are undisputed their effect is a question of law, 57 but where the
evidence is disputed the issue must be left to the jury. !So in an action for
malicious prosecution where the facts are conceded the existence of reasonable
cause is a question for the court as a question of law, 58 but where the facts are
in dispute the case may be submitted to the jury with alternative rulings
adapted to their action in determining the question of fact. 59
57. Construction of Documents. 6 " The discovery of the intention of the
writer of a written document is largely a question of fact, 61 but where the facts
are not in dispute and the intention is to be gathered from the document itself
its discovery presents merely a question of law to be ascertained by the judge. 62
The modern method of construction is to introduce all the surrounding circum-
stances in an effort to ascertain this intention. 63 The court has also to con-
strue documents other than probative 64 and all public documents, 65 including
statutes, 06 but it is beyond the province of the court to decide whether a
writing was intended to have a certain effect as between the parties to it 6T or
as to what inferences are to be drawn from its existence. 08
Where the terms of a document are vague, technical, in a foreign language
or the like where the facts are not all found any conflict of testimony is to be
settled by the jury. 110 The jury also must decide where the effect of the instru-
55. Chesterfield v. Ratliff, (S. C. 1898) 30 obtained by fraud. The theory of the courts
S. E. 593 (unreasonable shooting). is that the result of a full hearing before the
56. American Window Glass Co. v. Indiana trial court should foreclose the question.
Natural Gas & Oil Co., (Ind. App. 1906) 76 Haddad v. Chesapeake & 0. R. Co., \V. Va
N. E. J006. 88 S. E. 1038. L. R. A. 1916 F 192 (1916).
57. Boyle v. Mahanoy City, 187 Pa. 1, 40 60. 1 Chamberlayne. Evidence. 128-132.
Atl. 1093 (1898). 61. Edes v Boardman, 58 X. H., 580
58. Besson v. Southard, 10 N. Y. 236 (1879).
(1851) 62. Hamilton v. Tns. Co., 136 U. S 242,
59. Schattjren v. Holnback, 149 111. 646, 652, 255, 10 Sup 945 i 1889).
36 N E. 969 (1894). 63. Shaw v. Pope. SO Conn. 206, 67 Atl.
The question what facts are sufficient to 495 ( 1907 ) .
constitute probable cause is an unmixed ques 64. Ellis v. Littlefield. (Tex. Civ. App,
tion of law. Where the facts are disputed it 1906) 93 S W. 171.
must be left to the jury to determine what 65. Bedenbaupb v Southern R'y Co.. ij v
the facts are: but the court should instruct C I. 48 S E 53 (1904).
what facts amount to probable cause and 66. \Vinchell v Town of Camillus. 95 N". Y-.
what do not. Matson v. Michael, SI Kan. Sup. 6SS. 10!) App. Div 341 (1905).
360. 105 Pac. 537. L. R. A. 1915 D 1 (1909). 67. Holm v Coleman. 89 Wis. 233 (1895).
In an action for malicious prosecution evi- 68. Teesdale v. Bennett. (Wis. 1904) 101
dence of a conviction is conclusive evidence of X. W. 688.
probable cause although the conviction was 69. Rochester & P. Coal & Iron Co. v. Flint,
reversed on appeal unless the conviction was Eddy & Co., 84 X. V. Supp 269 (1903).
31 DZMCBEEBS TO EVIDENCE. 58-60
ment depends on collateral facts 70 or where the language is ambiguous 71 or
uncertain in any way.
58. Construction of Oral Contracts. 72 By a parity of reasoning when the
terms of an oral contract are undisputed its construction and effect are to be
determined by the court as a matter of law. 73 But where its interpretation
depends on collateral facts which are disputed the court will leave the construc-
tion to the jury conditioned on their findings as to the collateral facts. 74
59. Demurrers to Evidence. 75 A demurrer to evidence is an effort to ascer-
tain the rule of law applicable to the facts, admitting the facts proved, 76 and
has been practically rendered obsolete by the more convenient expedient of
moving to direct a verdict. The latter course has the advantage of permitting
the party who makes the motion to introduce further evidence if his motion is
overruled while the party who demurs is precluded from putting in new evi-
dence. 77 The party against whom such a motion is made is entitled to the
most, favorable inferences deducible in his favor from the evidence and the
pleadings. 78
The English rule required the demurring party to state exactly what he
admitted, 79 while in this country this rule has not been generally enforced, 80
but the party against whom the demurrer is taken has a right to have every
inference taken in his favor. 81 A demurrer to evidence may be taken before
a judge sitting without a jury. 82
60. Certainty of Law; Rulings on Facts. 83 In assuming the right of apply-
ing the rule of law to the facts when nothing remains as to them but to find
their legal effect, judges have realized that only in this way can certainty in
the rules of law be acquired and maintained. Where a given state of constitu-
ent facts is measured by a rule of law and the result is announced in the re-
ports, it amounts pro tanto to a construction of the law, in terms of fact. If
this process were left to the variant action of successive juries nothing but a
very undesirable uncertainty, vagueness and confusion could result. Where
this is necessary by reason of the circumstance that some disputed proposition of
70. West v. Smith, 101 U. S. 263, 270 78. Konigsberg v. Davis, 108 X. Y. S. 595,
(18791. 57 Misc. Rep. 630 (1908).
71. Rankin v. Fidelity Ins., etc., Co. 189 79. Gibson v. Hunter, 2 H. Bl. 187 (1793).
U. S. 242. 23 Sup. 553 (1903). 80. See Skinner Mfg Co. v. Wright, (Fla.
72. 1 C hamberlayne. Evidence, 136-138. 1906) 41 So. 28.
73. Spragins v. White, 108 X. C. 449 81. On a demurrer to evidence the evidence
(1*911. is to he given full belief and should be sub-
74. Na.-h v. Classen, 163 111 409. 45 X. E. mitted to the jury where the allegations of the
277 (1S96). plaintiff's pleadings are supported by com-
75. 1 (hamberlayne. Evidence, 139-145. petent evidence. Maryland Casualty Co. v.
76 Golden v. Knowles, 120 Mass. 336 Cherryville Gas. etc., Co., 99 Kan. 563. 162
(1876) -. Colegrove v. New York, etc.. R'y Co., Pac. 313. L. R. A. 1917 X. C. 487 (1917).
20 X. Y. 492 (1859). 82. Gerork v. Western Union Telegraph Co,
77 \\oldert Grocery Co. v. Veltman, (Tex. (X. C. 1906) 54 S. E. 782.
Civ. App. 1904) 83 S. W. 224. 83. 1 C hamberlayne. Evidence, 145-150
61 LAW AND FACT. 32
fact is to be determined, the mischief must, possibly, be endured. But where
all the facts are before the court, it realizes the great social advantages of
deciding for itself as to what is correct legal reasoning.
This is often done by announcing where the juries have decided for a series
of verdicts that certain acts do or do not constitute negligence that there is a
presumption of fact as to it which binds subsequent juries. The court may
also exercise its powers by ruling after hearing the evidence or the statement
of counsel as to what he expects to prove that there is no evidence for the jury
of the negligence or other liability claimed. 84
61. Trial by Inspection. 85 The determination of a plea of nul tiel record
is one of a class of issues of fact, determined by the presiding judge by his
'own perception in much the same way that he needs no evidence to decide on an
issue of direct contempt. At common law, these were grouped under the gen-
eral title of trial by inspection. Under this form of trial the nonage of an
infant, whether a party alleged to be dead was in fact alive, issues of idiocy,
mayhem, or the like were decided by the judge. Early law points to the con-
clusion that trial by inspection antedates the more modern form of trial by
jury. 86 So far as it applies to deterir' ; "'-'Hon of a constituent fact, e.g., whether
certain pieces of wood submitted to inspection were " chips " or " shingles " it
is probably no longer permissible. A close approximation to the finding of a
fact by the court upon inspection is furnished where the judge decides from the
examination of a document as to whether it is sealed or not sealed.
So an issue as to whether a certain record exists " uul tiel record' ' is deter-
mined by the judge looking at it. 87 However, a judgment of a sister State in
this country may be proved otherwise than by inspection. 88 The existence of a
foreign law is a question of fact 89 and it is still an open question whether evi-
dence as to it should be presented to the judge or to the jury. !)IJ It may be
proved through skilled witnesses. 91 Where the foreign law is in written form
the province of the judge is somewhat broader than when it is not.
The court will as far as possible require that the document itself be pro-
duced when the law is in written form 92 and may presume certain things as
that the rate of interest in a foreign country is statutory although the better
practice is to make no assumption in regard to it.
84. " It frequently is not possible by a gen- 86. Thayer, Preliminary Treatise. 19-24.
eral formula to mark out the dividing line 97. Adam: v. Bet/, 1 Watts 425. 427
with reference to every conceivable case, and (1833).
it is not wise to attempt it. The best and 83 Mills v. Bartlett. 179 Mass. 76. 61 N. E.
only practicable course -is to consider the cases i 1 si :; i .
as they arise, and bearing in mind the grounds 89. Cook v. Bartlett. 179 Mass. 76. 61 X. E.
upon which the soundness of each principle 266 (1901).
is supposed to rest, by a process of elimina- 90. Ottowa v. Perkins, 94 U. S. 260 (1876) ;
tion and comparison to establish points by judge. Hancock v. Western Union Tel.
through which the line must run." Per Ham- Co., (N. C. 1905) 49 S. E. 952: by jury
mond. J., in Martell v. White, 185 Mass. 255, 91. Mexican N. H. Co. r Slater, 115 Fed.
258 (1904). 593. 606 : 53 C. C A. 239 (1902).
85. 1 Chamberlayne, Evidence, 151-162. 92. McDeed v. McDeed. 67 111 545 (1873).
CHAPTER IV.
COURT AND JURY; COURT.
Court and jury ; court, 62.
Functions of the judicial office, 63.
judicial, 64.
procedure defined, 65.
rights relating to matters of procedure, 66.
substantive laiv may prescribe the remedy , 67.
verbal metabolism, 68.
distinction not important, 69.
promote justice, 70.
apply practice, 71.
administrative, 72.
field of administration, 73.
reason characteristic of administration, 74.
discretion, 75.
range of application; absence of judge from court room, 76.
adjournments, 77.
compelling consistency in parties, 78.
exclusion of persons from the courtroom, 79.
grounds for admitting public, 80.
persistence of conditions, 81.
furnish proof or contradiction, 82.
grounds for exclusion, 83.
adjournments to avoid unwise publicity, 84:.
separation of ii'itnesses, 85.
order not matter of right, 86.
what constitutes violation of order, 87.
time of motion for order, 88.
by whom motion is made, 89.
to whom the order applies, 90.
enforcement of the order, 91.
consequences of disobedience, 92.
party's relation to violation, 93.
proceedings against offending witness, 94.
swearing of witnesses, 95.
method of inquiry, 96.
children as witnesses; insane persons, 97.
form of oath, 98.
33
62,63 COURT AND JURY; COURT. 34
executive, 99.
require order and decorum, 100.
compel obedience to directions; administrative orders, 101.
attorneys, 102.
others subject to directions, 103.
protect the course of justice, 104.
attorneys, 105.
court officers, 106.
newspapers; embarrassing the administration of justice, 107.
service of process, 108.
witnesses, 109.
enforcement by contempt proceedings, 110.
civil and criminal eases,- 111.
direct and constructive, 112.
constructive presence of judge, 113.
Judge sitting as a jury, 114.
rulings of law, 115.
administrative questions, 116.
Evidence as a matter of administration, 117.
Stare decisis as applied to the law of evidence, 118.
Recapitulation, 119.
62. Court and Jury; Court. 1 Before proceeding to consider in some detail
the respective functions of the court and jury, it may be of advantage to take
a brief survey of the general constitution and relations of the two branches of
the mixed tribunal so familiar to the English law. The central figure of the
courtroom is unquestionably the judge. The office, and, much more frequently
than not, the individual, are hedged about with a dignity based upon varied
and highly important considerations. This is due not alone to the great an-
tiquity of the office of judge and to the universal social respect in which, wher-
ever worthily exercised, the office has uniformly been held. The title of judge
is, indeed, venerable with age and revered for the wisdom with which the age-
enduring traditions of the past have enriched it. Compared with the institu-
tion of judge, that of the jury is extremely recent.
63. Functions of the Judicial Office. 2 In the machinery of judicial pro-
cedure, to which reference will be more fully made, the law of evidence has
an especial place intervening in operation between the establishment of
issues of fact by means of the rules of procedure as to pleading, and the exercise
of the reasoning faculty in the act of judging or rendering a verdict upon the
facts which it is the province of evidence to supply. But beside having an
appropriate field in the procedure of a trial, the admissions and rejections of
1. 1 Chamberlayne, Evidence, 163. 2. 1 Chamberlayne, Evidence, 164.
35 JUDICIAL FUNCTIONS. 64-60
evidence, the form which it is compelled to assume, the limitations upon its
use or effect, are being constantly modified and, in the course of a trial, con-
trolled by rules imported from other branches of procedure.
This blending of the rules of evidence with those of substantive law or other
branches of procedure is rendered easy of occurrence and difficult of disassocia-
tion by reason of the fact that knowledge and enforcement of all rules of sub-
stantive law, as well as those of procedure, are, together with the task of ad-;
ministration, centered in the same person the presiding judge.
A Necessary Arrangement. This multiplicity of function on the part of
the presiding judge could at no time well be avoided.
A Palpable Confusion. It has proved easy for a presiding judge, under
the confusing conditions of a nisi prius trial to fail to distinguish or, indeed,
greatly to concern himself as to what was the particular branch of procedure
under which he was exercising a power which he clearly was entitled to use ; or
whether, indeed, he was dealing with procedure at all, rather than, in reality,
announcing or applying a rule of substantive law, or exercising his power of
administration.
But the common statement that evidence is not admissible for a given pur-
pose does not specify whether the exclusion is made because the fact which the
evidence tends to prove (a) is not material to the claim or defense relied on,
(b) is not relevant under the pleadings, (c) is not a probative or constituent
fact, (d) is calculated to mislead or confuse the jury, or unduly protract the
trial.
For convenience, the functions of the court may be divided into those which
are (1) judicial, i.e., involve the use of judgment; (2) administrative, i.e.,
imply the use of discretion; (3) those which are executive, i.e., require the
exercise of what may be called the " police powers " of the court.
64. [Functions of the Judicial Office] ; Judicial. 3 The presiding judge has
not only the duty of announcing the substantive law of which he is said to
have judicial knowledge, and which will be more fully considered later, in con-
nection with that subject ; he also is charged with the duty of applying the
rules of procedure.
65. [Functions of the Judicial Office] ; Procedure Defined. 4 Properly consid-
ered, procedure relates, not to the remedy, but to the process by which the rem-
edy is made available. The law of procedure governs the process of litigation. 5
66. [Functions of tne Judicial Office] ; (1) Rights Relating to Matters of Pro-
cedure/'- - The substantive rights of the parties may well extend to the observ-
ance of certain methods of procedure. Indeed, the rights to the observance of
3. 1 Chamberlayne. Evidence. Ifio. braced by the three technical terms, pleading,
4. 1 Chamberlayne. Evidence, 166. 167. evidence and practice." Krino- v. Missouri,
5. ii;e Supreme Court of the United States 107 U. S. 221. 231.
defines procedure to include " Whatever is em- 6. 1 Chamberlayne, Evidence, 168.
| 67-69 COUKT AND JUKY; COURT. 36
an ebiablished procedure are the most ancient of which we know anything in
Teutonic law. Historically, procedure antedated substantive law. In the
more formal jurisprudence of early days, procedure was, in itself, the test of
truth. Facts were " proved," not by any appeal to reason, but by carrying
through without variation certain established formulae, known to the judges
noticing the result and acting accordingly.
67. [Functions of the Judicial Office] ; (2) Substantive Law May Prescribe the
Remedy. 7 As the right to the observance of a rule of procedure may be a
matter of substantive right, so the remedy itself may be, and frequently is,
prescribed by the substantive law. Thus, the punishment for crimes, the dam-
ages awarded upon the violation of a right or the infraction of a duty are all
clearly part of the remedy. It is equally plain that such remedies are pre-
scribed by the substantive law.
38. [Functions of the Judicial Office] ; Verbal Metabolism. 8 This verbal
metabolism between the phraseology of the substantive law and that of pro-
cedure by which the rules of positive law are made to appear as if they were
part of 'the separate and distinct branch of law denominated procedure, takes
place, most frequently, in practical judicial administration in three ways:
1. Exclusive Mode of Proof. ' The first instance of this verbal interchange-
ability of a rule of substantive law with one of procedural law is furnished
where an exclusive mode of proof is, in reality, a component element of the
right or liability prescribed by substantive law. Thus, if contracts of a certain
nature can, under the rule of substantive law, be proved only by a writing, the
evidentiary requirement practically adds an additional condition, under which
i alone a right to enforce such a contract will arise.
2. Conclusive Presumptions. A second paraphrasing or interchangeability
of substantive for procedural rules is furnished where a conclusive effect is
given to a particular fact in a given connection, irrespective of probative force ;
e.g., where a certain evidentiary fact is the equivalent of and may be substituted
for another. A conclusive presumption, as it is called, states in substance,
the equivalence in legal effect between two facts. The form of expression is
that of procedural law; the reality is a proposition in substantive law. For ex-
ample a child under seven is said to be conclusively presumed to be incapable
of forming a criminal intent. Of this the only rational meaning can be that
the law of persons provides that infants under this age shall not be criminally
punished for offenses of which intent is an essential element.
3. Statute of Limitations. The limitation on the right to bring an action
a specimen of procedural law is practically equivalent to the loss of prescrip-
tion of the right itself by lapse of time.
69. [Functions of the Judicial Office] ; Distinction Not Important. 9 It
7. 1 'hamberlayne, Evidence, 169. 9. 1 Chamberlayne, Evidence, 171.
8. 1 hamberlayne, Evidence, 170.
37 PROMOTE JUSTICE. 70
would thus appear that the distinction between substantive and procedural law
is one not only of but little consequence ; it is one which is principally based,
as, perhaps, the historical evolution of substantive law from forms of rigid
procedure might in itself suffice to show, on a mere difference in form of state-
ment. The distinction between substantive and procedural law is artificial
and illusory. In essence, there is none. The remedy and the predetermined
machinery, so far as the litigant has a recognized claim to use it, are, legally
speaking, part of the right itself.
In reality, the true distinction for the purpose of the law of evidence, the
correct line of radical cleavage, is not between rules as announced in substan-
tive law and similar and often interchangeable rules formulated as part of the
law of procedure; but is, on the contrary, between rules of law, substantive or
procedural, on the one hand, and the principles of rational judicial adminis-
tration on the other.
70. [Functions of the Judicial Office] ; Promote Justice. 10 Equally within
the judicial function of the court with the enforcement of law, and far tran-
scending it in social importance is the promotion and furtherance of justice.
This is the field of judicial administration. The primary mandate to the
judge is to promote justice. But society is not only interested in the doing of
abstract individual justice. It is also essential to the objects which it has in
view that rights and duties should be certain, that things once done in a given
way should continue to be done in that way. The taking of judicial action in
a particular way creates, to a certain extent, a right on the part of the litigant
and a corresponding obligation on the judge to do the same thing in a similar
case. .Thus arises a rule, a law.
For this uniformity, created by its legal rules, society, however, is forced to
pay a heavy price in terms of justice. This is inevitable; but it should be
recognized. As the objective and subjective conditions of no two cases are, it
may be anticipated, precisely similar, applying a rule from a case to which it
was perhaps ideally accurate to another case can only be done by the disregard
of certain of the attendant features of the actual situation in the latter case.
The more general the rule, the more rigidly it is enforced, the greater must be
the number, variety and importance of the elements present in the situation
before him which the judge is forced to disregard.
A further price is paid in terms of popular respect. Truth is usually in
advance of public opinion ; public opinion is, as a rule, in advance of the law.
The standards of what is just and even of what is socially expedient are not
only in a state of constant flux but in one of incessant sublimation. Those
held by any particular epoch are, as a rule, mentally and morally in advance
of those used by that which has preceded it. The law, in proportion as it pre-
sents the advantage of fixity and uniformity, tends pari passu to exhibit the
10. 1 Chamber layne, Evidence, 172.
71-73 COUET AND JUKY; COURT. 38
evils of undue conservatism. Law almost necessarily lingers behind the ethical
standards of the age in which it is being applied. It proclaims the views of a
previous age.
A mare disguised but still very substantial price is paid by society in the
prevalence, in the body of law, of the trivial, the false and the formal, the un-
true estimate of real values which is not only in practice detrimental to the
cause of justice, but powerfully operates to impair the instinct for justice itself
which is the very crown of the judicial office. Formalism dies hard; it is kept
alive by technicality of which the essential element is the rigidity of legal re-
quirement.
71. [Functions of the Judicial Office]; Apply Practice. 11 The presiding
justice is charged not only with the function of enforcing the rules of law and
promoting justice ; he has also the duty and function of announcing and apply-
ing to matters before him the judicial practice, local or general, which prevails
in the jurisdiction of his forum. In connection with the field of " Evidence,"
" Practice " may be defined as that portion of the field of administration which
is covered by a custom or usage.
The right of a party, for example, to cross-examine his opponent's witnesses,
is a matter of procedural law. The scope of such an examination at any par-
ticular stage of the trial is largely a matter of administration, controlled and
conditioned by the fact that reason must be exercised. The order in which
the. examination of the adversary's witnesses shall be conducted is controlled,
unless the judge actively intervenes, by a custom.
A rule of court is improperly spoken of as a rule of practice. When passed
under authority of law a rule of court is one of procedural law.
72. [Functions of the Judicial Office] ; Administrative. 12 " The judicial of-
fice is really one of administration." So far as it ceases to be administrative,
it ceases to be judicial. Undoubtedly the supreme function of the judicial
office is precisely that of administration. The function of enforcing law is
governed by rules; the function of administration is guided and governed by
the fundamental nature of the judicial office itself. In other words, adminis-
tration is that portion of procedure which is not governed by a rule of law.
73. [Functions of the Judicial Office] ; Field of Administration. 13 The gen-
eral field of administration and the force and effect which shall be wisely ac-
corded it, as contrasted with law, procedural or substantive, is determined in
any particular connected by the inherent nature of administration itself. An
infinite series of minute details, a nice adjustment of a principle to a number
of conflicting phenomena requiring the constant exercise of judgment, the
choice and selection of means to an end, cannot well be made the subject of a
rule of law. This is the distinctive field of administration.
11. 1 Chamberlayne, Evidence, 173. 13. 1 Chamberlayne, Evidence, 175.
12. 1 Chamberlayne, Evidence, 174.
39 ADMINISTRATIVE FUNCTIONS. 74, 75
74. [Functions of the Judicial Office] ; Reason Characteristic of Administra-
tion. 14 The characteristic feature of that portion of procedure which we shall
term administration, is its constant employment of reason and judgment rather
than the imposition of a command to do things in a particular way. The test
and guide of sound administration is the exercise of the reasoning faculty.
75. [Functions of the Judicial Office] ; " Discretion." 15 It is commonly
said that matters of procedure in which there is no definite rule are those of
" judicial discretion." Ko especial objection exists to the use of the phrase
other than that it appears misleading by a suggestion of arbitrary and irrespon-
sible action on the part of the presiding judge. This by no means, in fact,
exists. As Lord Mansfield says : 16 " Discretion, when applied to a court of
justice, means sound discretion guided by law. It must be governed by rule,
not by humor; it must not be arbitrary, vague and fanciful, but legal and
regular."
Of discretion in the sense of purely arbitrary power to deal with the rights
of litigants it may be truly said that no such right exists in the English law
of evidence. 17
Action of appellate courts as to matters of discretion. It may fairly be ob-
served that the action of many appellate courts in this respect is such as not
only to add enormously to their own labors, but also to create a serious conges-
tion of judicial business through repeated new trials and a consequent prac-
tical denial of justice. In matters properly of administration or discretion
reversal should properly occur only where error in law has been committed.
Abuse of discretion, it would thus appear, is its unreasonable 1S or other-
wise illegal, 10 use. This is commonly spoken of as "abuse" of discretion, it
being said that the action of the trial judge on a matter within his discretion
will not be reversed except in the event of its abuse, 20 a phra'se which does
14. 1 Chamberlayne, Evidence, 176. order which the trial judge should have made,
16. R. v. Wilkes, 4 Burr, 2527, 2539 ( 1770) . removes the hardship and delay of justice
15. 1 Chamberlayne, Evidence, 177, 178. which attend the attempt, undertaken in sev-
17. New Jersey. Sea Isle City Imp. Co. v. eral jurisdictions, to establish the same rule
Assessors of Taxes of Borough of Sea Isle at law. It follows that judicial discretion, in
City, 61 X. J. Law 476, 39 Atl. 1063. 1064 equity cases, is not arbitrary or capricious
(1898). dependent upon the mere pleasure of the judge
Discretion in equity is, normally, quite a but is a " sound and reasonable discretion
different matter from the exercise of adminis- which governs itself, as far as it may, by gen-
trative powers at common law. The juris- eral rules and principles/' Patten v. Stewart,
diction of equity was a prerogative one: many 24 Tnd. 332 (1865) (rescission),
of its remedies were not obtainable as of 18. McBride v. McBride, (Iowa 1909) 120
right. Much, in most cases, depended on the X. W. 709; Freasier v. Harrison. (Mo. App.
extent to which certain facts affected the 1909) 118 S. W. 108.
mind and conscience of a particular judge. 19. Connecticut.- McKone v. Schott, 82
The substantive law relating to equity pro- Conn. 70, 72 Atl. 570 (1909).
cedure made the discretionary action of a Florida. Atlantic Coast Line R. Co. v.
trial judge reviewable in an appellate chan- Dees. 56 Fla. 127. 48 So. 28 H908).
eery tribunal. Absence of the jury, enabling 20. Kansas. Hackett v. Turner, 19 Kan.
the appellate court in equity to enter the final
76,77 COURT AND JURY; COURT. 40
not seem, essentially modified in meaning by the addition of adjectives such
as " gross," 21 " wanton " or the like. 22
" All reasonable intendments must be made in favor of the acts of officials
who are under obligations to perform their duties correctly, so long as they
appear to be acting in good faith." 23 It has even been suggested that where
the police powers have alone been exercised, by the court, the propriety of the
trial judge's action will not be revised. 24
76. [Functions of the Judicial Office] ; Absence of Judge from Courtroom. 25
The presiding judge may, in his administrative discretion, leave the bench
when so disposed.
A purely temporary absence of the judge from the courtroom will not be
deemed error. 26
On the other hand, as much prejudice may be caused to a party by the un-
controlled action of his adversary during a prolonged absence of the judge, re-
versible error may be committed in leaving the courtroom. 27
77. [Functions of the Judicial Office] ; Adjournments. 28 The court may
grant adjournments if justice apparently requires it, but he is not required to
defer justice to other 'suitors because, in a case on trial, a party has failed to
present such a case as with due diligence he might and should have done. 29
Where, however, surprise on a material point 30 has been caused to a party as
by the taking of a sound technical objection which was not fairly to have been
anticipated, ai or an unexpected demand for available proof arises, 32 an ad-
journment, upon suitable terms, 33 may reasonably be conceded.
527 (1878) (amendments; continuances; 27. Wells v. O'Hare, 209 111. 627, 70 N. E.
costs). 1056 (1904). [Judgment reversed, 110 111.
21. Murphy y. Southern Pac. Co., (Nev. App. 7 (1903).]
1909) 101 Pac. 322. 28. 1 Chamberlayne, Evidence, 180.
22. Maryland. Consol. Gas, etc., Co. v. 29. The court is not bound to suspend to
State, 109 Md. 186, 72 Atl. 651 (1909) (arbi- enable a party to procure additional evidence,
trary). Zipperer v. City of Savannah, 128 Ga. 135,
Massachusetts. Jenkins v. Weston, 200 57 S. E. 311 (1907): Black v. Sherry, 87
Mass. 488, 86 X. E. 955 (1909) (manifestly X. Y. Supp. 166, 43 Misc. Rep. 342 (1904);
unfounded). Sheedy v. City of Chicago, 221 111. Ill, 77
23. l!io (Grande County Com'rs v. Lewis, 28 X. E. 539 (1906) (Measure sewer) ; or to get
Colo. 378. 65 Pac. 51 (1900) [citing Smith v. a witness whom he has neglected to summon.
Board. 10 Colo. 17 (1887)]. vozlowski v. City of Chicago, 113 111. App 515
The fact of abuse must be affirmatively es- ( 1904) -. Knapp v. Order of Pendo, 36 Wash,
tablished by the objecting party. Waldron v. 601, 79 Pac. 209 (1905).
First Xat. Bank. 60 Neb. 245. 82 X. W. 856 30. Xieberg v. Greenberg, 91 X. Y. Supp.
(1900) : Brenxinger v. American Exch Bank. 83 (1904).
19 Ohio fir. Ct. R. 536, 10 O. C. D. 775 31. Reiss v. PfeifTer, 117 X. Y. App. Div.
(1900). 880, 103 X. Y. Suppl. 478 (1907)
24. Xorris v. C'linkscales, 47 S. C. 488, 25 32. Heyman v Singer, 99 X. Y. Supp. 942,
S. E. 7!)7 (1896). 51 Misc. Rep. IS (1906).
25. 1 Chamberlayne. Evidence, 179. 33. Poland v. Minshall. 96 X. Y. Supp.
26. Chicago City Ry. Co. v. Creech, 207 III. 500 (1905) (judgment of costs).
400, 69 X. E. 919 (1904).
41 ADMINISTRATIVE FUNCTIONS. 78-81
An unreasonable refusal to adjourn may be treated as prejudicial error. 34
On the other hand, the court may proceed to trial ex .paste where a case is
reached in its order, 35 and no request for adjournment is made or such a
motion has been overruled. He may even proceed ex parte where the attor-
neys of the moving party upon the refusal of their motion to adjourn, immedi-
ately withdraw from the case. 36
78. [Functions of the Judicial Office] ; Compelling Consistency in Parties.
Parties to a suit ought to be consistent and not play fast and loose w T ith the
court. Where a defendant objects to a rule of damages laid down by the
court, and later accepts the court's theory and asks for rulings upon that very
theory and the court does instruct upon that theory the party must be held to
have abandoned his first theory and accepted the theory of the court. 37
79. [Functions of Judicial Office] ; Exclusion of Persons from the Courtroom. 38
- The presiding justice may exclude from the courtroom any persons not
directly concerned in the particular trial which is in progress, except where
the constitution guarantees a public trial. 39
80. [Functions of Judicial Office] ; Grounds for Admitting Public. 40 As a
rule, a portion of the public, suited to the capacity of the courtroom, will be
admitted by the special or standing order of the judge.
A valuable educational influence tending toward interest in and respect for
public justice is thereby created. The correction of judicial abuses, loyalty to
good administration and general respect for law and its enforcement, are made
personal to the citizen, and greatly .promoted by examination and discussion.
The power for good in this connection, is perhaps most dramatically revealed
in the abuses which have, as an almost invariable rule, attended the exercise of
judicial administration through tribunals whose proceedings have been held in
secret. Xot only is publicity in judicial proceedings helpful in making the
influence of legal administration powerful and personal through the commu-
nity ; it is an important guarantee for truth, as it is elicited from witnesses,
in civil or criminal cases.
81. [Functions of Judicial Office] ; Persistence of Conditions. 41 The exist-
ence and nature of the subtle, intangible and yet powerful emotional disturb-
ances which may be called the psychic atmosphere of a trial, are carefully to
be considered and dealt with by the wise practitioner, and it is no small ad-
vantage of the public trial of causes that a practitioner may thus gauge the
34. Heyman v. Singer, 99 N. Y. S. 942, 51 143 N. W. 439, L. R. A. 1916 E. 983 (1913).
Misc. Rep. .18 (1906). 38. 1 Chamberlayne, Evidence, 182.
35. Linderman v. Nolan. 16 Okl. 352, 83 39. State v. Keeler. Mont. 156 Pac. 1080, L.
Pac. 796 (1905). R. A. 1916 472 (1916).
36. Mclnnes v. Sutton, 35 Wash. 384, 77 40. 1 Chamberlayne, Evidence, 183.
Pac. 736 (1904). 41. 1 Chamberlayne, Evidence, 184.
37. Ottumwa v. Nicholson, 161 Iowa 473,
82,83 COURT AND JURY; COURT. 42
mental attitude of the tribunal in approaching the consideration of his case and
be able to judge as to the precise nature of the task before him. 42
82. [Functions of Judicial Office] ; Furnish Proof or Contradiction. la The
presence of the public in the courtroom and, to a still wider and more impressive
extent, the publication in the newspaper press of judicial proceedings, is a
powerful agency in bringing to the attention of persons having facts in their
possession relating to a matter on trial the knowledge that they may be helpful
to the cause of justice. 44
83. [Functions of Judicial Office] ; Grounds for Exclusion. 45 In discharging
his administrative power in relation to the admission of the public to the court-
room, very different considerations may well be felt to apply to those who are
attending on business in the courtroom as compared with those whose position
is that of mere spectators.
In the case of persons having no direct connection with the business before
the court, it may frequently seem to a presiding judge that his administrative
control of the courtroom will be more rationally exercised by excluding their
personal presence from it all legitimate social interests being amply con-
served by fair reports of the newspapers of daily judicial proceedings and
temperate editorial comments upon finished,cases, the interests of justice being
secured in this connection by a correction by the judge of any abuses.
Fear of Violence. Where the judge apprehends danger of disorderly pro-
ceedings by the spectators, or, the exercise of undue and improper influence on
the jury, he may properly exclude from the courtroom all persons who have no
direct connection with the proceedings. 40
Protect Public Movals. Unmoral or immoral cases, especially those relat-
ing to sexual offenses or perversions, are constantly arising for trial and obvi-
ously tend to excite and gratify the morbid sensationalism of the lovers of
moral filth at the expense, in all cases, of public morals and social sanity ; and,
in many cases, of great mental anguish to sensitive witnesses or parties. The
judge, as custos morum, may reasonably consider that the assemblage over which
he directly presides should be rather held for the dispatch of public business
42. State v. Brooks, 92 Mo. 542, 573 purpose of hearing what is going on." Daub-
(1887) ; Garnett v. Ferrand, 6 B. & C. 611, ney v. Cooper, 10 B. & C. 237, 240 (1829).
626 (1827). "The public had a right to be 43. 1 Chamberlayne, Evidence, 185.
present, as in other courts." Colier v. Hicks, 44. A jeweler, reading in the papers of a
2 B. & Ad. 663, 668 (1831), per Tenterder, perjured testimony as to when he did certain
C. J. " We are all of opinion that it is one engraving on jewelry, attended and rendered
of the essential qualities of a court of justice valuable assistance in exposing the deceit,
that its proceedings should be public, and that Smyth v. Smyth, Woodley's Celebrated Trials,
all parties who may he desirous of hearing 1, 115, 140, 144 (1853).
what is going on, if there be room in the place 45. 1 Chamberlayne, Evidence, 186.
for that purpose, provided they do not inter- 46. Stone v. People, 3 111. 326, 338 (1840).
rupt the proceedings and provided there is People v. Kerrigan, 73 Cal. 222, 14 Pac. 849
no specific reason why they should be re- (1887).
moved, have a right to be present for the
43 ADMINISTRATIVE FUNCTIONS. 84, 85
than composed of persons met for diversion innocent or prurient. This
power may however be controlled by a constitutional provision guaranteeing a
public trial. 47
Declaratory statutes have been passed in many states making it the duty of
the judge to exclude the public from cases of a lascivious nature 48 which may
however be void when the state constitution contains a guarantee of a public
trial. 49
84. [Functions of Judicial Office] ; Adjournments to Avoid Unwise Publicity,
etc. 50 An alternative administrative expedient for the purpose of avoiding
unwise publicity is to keep the courtroom open for the general dispatch of
public business, while withdrawing a particular case, presenting exceptional
circumstances, from idle or morbid curiosity or the other evils to which refer-
ence has been made, and hearing it privately in some other place. 51
Other causes for Adjournments. Adjournments may be made to places
other than the courtroom, for causes entirely apart from protection of the
public morals. The adjournment may, for example, be to the house of a sick
witness 52 or party. 53
85. [Functions of Judicial Office] ; Separation of Witnesses. 54 It is within
the administrative function of the presiding justice to order that certain wit-
nesses be excluded from the courtroom until they or other witnesses, whether
called by the party proposing the order or by his opponent, 55 shall give their
testimony. 56
Such an order may go further and direct that one witness be kept apart from
the others ; or that each witness shall have been kept by himself until after he
has testified. When falsehood or bad faith is to be prevented or detected the
expedient is of obvious value in that it permits effective inquiry as to sub-
sidiary matters difficult to cover by a previous agreement between the wit-
nesses. It is not, however, essential, in order that a separation should be or-
47. Where the constitution guarantees an (1877) at lawyer's office; Bates v. Sabin, 64
accused a public trial it is error to exclude Vt. 511, 514, 24 Atl. 1013 (1892) at his own
from the court room all persons except those home.
then in it even in a rape case where the order 50. 1 Chamberlayne, Evidence, 187.
is made in the interest of decency. The defen- 52. Sutton v. Snohormish, 11 Wash. 24, 39
dant must protect his rights by objecting to Pac. 293 (1895).
the order at the time. State v. Keeler. Mont. 53. Selleck v. Janesville, 100 Wis. 157, 75
156 Pac. 1080, L. R. A. 1916 E 472 (1916). X. W. 975 (1898).
48. Colo. C. C. P. 1891, 427; Ga. Code, 54. 1 Chamberlayne, Evidence, 188, 189.
1895, 5296; Mich. Comp. L. 1897, 11873; 55. State v. Zellers. 7 N. J. L. 220, 224
Mich. Comp. L. 1897, 11852; Utah Rev. St. (1824) (defendant's witnesses).
1898, 696; Wis. Stats. 1898. 4789. 56. Alabama. McClellan v. State, 117 Ala.
49. People v. Murray, 89 Mich. 276. 50 140, 23 So. 653 (1897); McLean v. State, 16
X. W. 95 (1891) ; People v. Yeager, 113 Mich. Ala. (X. S.) 672 (1849).
228, 71 X. W. 491 (1897). Massachusetts. Com. v. Knapp, 9 Pick.
51. Heed v. State, 147 Ind. 41, 46 X. E. 496, 20 Am. Dec. 491 (1830).
135 (189") : Le Orange v. Ward, 11 Ohio 257 A>? York. People v. Green, 1 Park Cr. R.
(1842); Mohon v. Harkreader, 18 Kan. 383 (N. Y.) 11 (1845).
86,87 COURT AND JURY; COUET. 44
dered, that fraudulent collusion should be charged. Separation is further
useful at times in preventing a certain unintentional and even unconscious col-
lusion between interested persons who hear each .other's story when testify-
ing. 57
Persons testifying to the same transaction almost invariably, and without
active bad faith, seek to harmonize their story. It apparently seems to them
to strengthen it and give to each the moral support of all.
86. [Functions of Judicial Office] ; Order Not Matter of right. 58 It fol-
lows, for obvious reasons, that the request is usually granted, as a matter of
course. This, however, is quite different from saying that the judge, whatever
his view of the actual situation, is required to make the order, as has been at
times decided, 59 or intimated. 00
The Right to Demand a Separation May be Conferred by Statute.^ In
trials before Houses of Parliament the practice of granting an order seems to
have been invariable. 62
Unless the judge's discretion has been abused, the propriety of the exercise
of this power to order a separation of witnesses will not be reversed in an
appellate court." 3
87. [Functions of Judicial Office] ; What Constitutes Violation of the Order. 64
- A reasonable construction should be applied to such an order. As the ob-
ject is to prevent giving of information to the witnesses, a hypothetical ques-
tion which gives no information is not objectionable." A counsel is at liberty,
unless otherwise ordered, to consult with one of his own witnesses, and tell him
while the latter is under the rule, what one of those called by his opponent has
stated in the course of his testimony, 60 though it has been required that the
consultation take place in the presence of the court <i7 or one of its officers, 68 or
57. Louisville, etc., Ry. Co. v. York, 128 61. Nelson v. State. 2 Swan (Tenn.) 237,
Ala. 305, 30 So. 676 (1900) ; State v. Zellers, 257 (1852).
7 N. J. L. 220. 226 ( 1824) ; Rainwater v. El- 62. Taylor v. Lawson, 3 C. & P. 543 (1828) ;
more, 1 Heisk. (Tenn.) 303. 30.1 (1870); Berkeley Peerage Trial, Sherwood's Abstract,
Fortesque, De Landilms Legum Angliae, c. 26 151 (1811).
( 1470) . " The rule is provided merely to pre- 63. May v. State, 94 Ga. 76 ( 1894) ; Nelson
vent the testimony of one witness from in- v. State, 2 Swan (Tenn.) 237 (1852); Powell
fluencing the testimony of another." Cook v. v. State, 13 Tex. Ap. 244 (1882) ; Haines v.
State, 30 Tex. App. 607 (1892). Terr., 3 \Vyo. 168 (1887) ("gross abuse.").
58. 1 Chamberlayne, Evidence, 190. 64. 1 Chamberlayne, Evidence, 191.
59. Georgia. Shaw v. State, 102 Ga. 660, 65. State v. Taylor, 56 S. C. 360, 34 S. E.
29 S. E. 477 ( 1897) . 939 ( 1899) (" if your husband says so " is it
West }'irginia. Gregg v. State, 3 W. Va. true?).
705 (1869). 66. Home v. Williams, 12 Ind. 324 (1859) ;
60. Wilson v. State, 52 Ala. 299, 303 Allen v. State. 61 Miss. 627, 629 (1884);
(1875) ("rarely if ever" withheld); Cook White v State. 52 Miss. 216. 224 (1876);
v. State, 11 Ga. 55, 02 (1852) (the prosecu- Williams v. State. 35 Tex. 355 (1872) ("in
tion may claim as of right) : Walker v. Com., a proper manner ").
8 Bush (Ky.) 86, 89. 96 (1871): R. v. 67. Jones v. State, 3 Tex. Cr. App. 150, 153
Murphy, 8 C. & P. 307 (1837) (almost a (1877).
right).
45
ADMINISTRATIVE FUNCTIONS.
88-90
be expressly permitted iu the court's discretion. 69 The rule is the same as to a
party ; 70 whether this privilege applies to other agents assisting in the trial
of the cause is more doubtful. 71 Information as to the trial conveyed by the
daily journals does not violate such an order. 72
88. [Functions of Judicial Office] ; Time of Motion for Order. 73 The order
may properly be requested at any time 74 after the reading of the pleadings 75
and the opening address of the counsel, 76 and before the close of all the evi-
dence; though it has been held inappropriate to make a motion for a separation
while affidavits are being read. 77
ji 89. [Functions of Judicial Office] ; By Whom Motion is Made. 78 The mo-
tion may be made by either 79 or both 80 parties; the jury may request it; 81
or the judge may make the order, sua sponte. 82
90. [Functions of Judicial Office] ; To Whom the Order Applies. 83 The ad-
ministrative power of the court extends not only to the making of the order,
and the details of its enforcement, but as to whom it shall cover. 84 Not only
do attorneys (in the American sense) 85 and counsel, 86 form, as a rule, an ex-
68. Brown v. State, 3 Tex. Cr. App. 294,
310 (1877).
69. Kennedy v. otate, 19 Tex. Cr. App. 618,
631 (1885).
70. Shaw v. State, 79 Miss. 21, 30 So. 42
(1901); Holt v. State, 9 Tex. Cr. App. 571,
580 (1S80) (discretionary with court).
71. Travelers' Ins. Co. v. Sheppard, 85 Ga.
751, S14, 12 S. E. 18 (1890).
72. Com v. Her>ey, 2 Allen (Mass.) 173
(1861).
73. 1 Chamberlayne, Evidence, 192.
74. Southey v. X*ash, 7 I. & P 632 (1837).
The separation may be ordered at the re-
quest of a party whose own witnesses have
been already examined Southey v. iSash, 7
C. & P. G32 (1837).
75. Wilson v. State, 52 Ala 299 (1875);
Roberts v. Com., 94 Ky 499 i 1893).
76. Benaway v Conyne, 3 Chand. (Wis )
214, 219 (1851).
Little doubt exists that in most jurisdic-
tions, if reasonably requested, separation
would be ordered before the opening. Rex v.
Murphy, S Car. & P. 297 (1S37). It may.
under certain circumstances, be highly im-
portant that the witnesses be not influenced
by suggestions conveyed to them by counsel at
this stage. It has been held, however, that it
is beyond the court's power to separate the
witnesses during the opening address. Ben-
away v. Conyne, 3 Chand. (Wis.) 214 (1851).
77. Penniman v. Hill, 24 Wkly. Rep. 245
(1876) (Hall, V. C.).
78. 1 Chamberlayne, Evidence, 193.
79. Holder v. U. S., 150 U. S. 91 (1893).
80. State v. Sparrow, 3 Murph. (N. C.)
487 (1819).
81. Earl of Shaftesbury's Trial, 8 How. St.
Tr. 759, 778 (1681).
82. Ryan v. Couch, 66 Ala. 244, 248 (1880) ;
Wilson v. State. 52 Ala. 299 (1875).
83. 1 Chamberlayne. Evidence, 194.
84. Alabama. Webb v. State, 100 Ala. 47,
52 (1893). See also Strickland v. State,
(Ala. 1907) 44 So. 90.
85. State v. Brookshire, 2 Ala. 303 ( 1841 ) ;
Wisener v. Maupin, 2 Ba..c. (Tenn.) 342, 357
(1N72); Powell v. State. 13 Tex. App. 244
(1882); State v. Ward, 61 Vt 153. 179, 17
Atl. 483 (1888) (not employed on case).
This has been said to be a matter of discre-
tion and not as of right. Powell v. State. 13
Tex. App. 244, 252 (1882). An attorney ap-
pearing simply as a witness may bo granted
a similar privilege of remaining, although the
other witnesses have been placed under the
rule. Mitchell v. State, (Tex. Cr. App. 1908)
114 S. W. 830.
No express exception need be made in the
case of an attorney or counsel. It will be
implied. Powell v. State. 13 Tex. App. 244
(1882) : Gregg v. State. 3 W. Va 705 (1869'
See also to the same effect, Bischoff v. Com.,
29 Ky. Law Rep 770. 96 S. W. 538 (1906).
86. Boatmeyer v State, 31 Tex. Cr. 473, 20
S. W. 1102 (1893) ; Powell v. State, 13 Tex.
App. 244 (1882) : Pomeroy v. Baddeley, R. &
90
COUET AND JURY; COURT.
ception to the operation of the order, but the party ST and other persons neces-
sary to protect his interest in the management of the trial, 88 also are permitted
to remain in the court room. 89
Corporations as parties come under the same administrative indulgence.
Its officers, e.g., a president, 90 so far as, in the opinion of the judge, 91 their
presence shall be reasonably necessary to protect the interest of the company,
will be allowed to remain.
Court officers, 92 jurors 3 and parties/** are equally privileged to remain.
In criminal cases, the exemption from the order of separation applies also
to prosecutors 95 and defendants. 96 Public officers/ 7 medical 98 or other ex-
perts, and. indeed, any witness " or class of witnesses may be excepted from
the order by express action of the court or agreement of parties. 1 If persons
M. 430 (1820) ; Everett v. Lowdham, 5 Carr
& P. 91 (1831).
87. Seaboard Air-Line Ry. v. Scarborough,
(Fla. 1906) 42 So. 706.
88. Ryan v. Couch, 66 Ala. 244, 248 (1880)
(father of absent plaintin").
89. Thus the judge may properly permit
a brother of a person accused of crime to re-
main in the court room and assist in the de-
fense. May v. State, 94 Ga. 76 (1894). So
also of the wife and daughter of one accused
of crime. State v. Pell, (Iowa 1909) 119
N. W. 154.
90. Warden v. Madisonville,<H. & E. R. Co.,
101 S. W. 914, 31 Ky. ^. Rep. 234 (1907) .
91. Trotter v. Town of Stayton, (Ore. 1904)
77 Pac. 395. As between its president and
vice-president the corporation may properly
be called upon to elect whom it would prefer.
Atlanta Terra Cotta Co. v. Georgia, Ry. &
Electric Co., 1.32 Ga. 537, 64 S. E. 563 (1909).
A municipal corporation occupies a similar
position. Thus, a city recorder may be ex-
cluded although it is asked that he he per-
mitted to remain to assist counsel. Trotter
v. Town of Stayton, (Or. 1904) 77 Pac. 395.
92. Johnican v. State, (Tex. Cr.) 48 S. W.
181 (1898) (clerk of court); State v. Lock-
wood, 58 Vt. 378, 3 Atl. 539 (1886) (deputy
sheriff) .
93. State v. Vari, 35 S. C. 175, 14 S. E. 892
(1801).
94. Mclntosh v. Mclntosh, 79 Mich. 198,
203, 44 N. W. 592 (1890).
The marked degree to which parties are
exposed to the temptations to perjury and
general falsity in testimony which separation
seeks to minimize, has not, however, escaped
attention. Salisbury v. Com., 79 Ky. 425,
432 (1881); Wisener v. Maupin, 2 Baxt.
(Tenn. ) 342, 357 (1872). In pursuance of
this line of thought it has been held that
parties stand on the same position as other
witnesses ^and should be equally subject to
exclusion.
Arkansas. Randolph v. McCain, 34 Ark.
696 (1879).
Georgia. Tift v. Joens, 52 Ga. 538, 540,
542 (1874).
Kentucky. Salisbury v. Com., 79 Ky. 425,
432 (1881).
Tennessee. Wisener v. Maupin, 2 Baxt.
342, b56 (1872).
England. Penniman v. Hill, 24 W. R. 245
(1876).
95. Coolman v. State, (Ind. 1904) 72 -N. E.
568; State v. Whitworth, 196 Mo. 573, 29 S.
W. 595 (1894) (father of prosecutrix in
rape) . But see to the contrary, Salisbury v.
Com., 79 Ky. 425, 432 (1881).
96. Of two persons jointly charged with
crime, each proposing to testify for himself,
neither can be excluded during the examina-
tion of the other. Richards v. State, 91 Tenn.
723, 30 Am. St. 907 (1892).
97. Webb v. State, 100 Ala. 47, 52, 14 So.
865 (1893) (sheriff); People v. Garnett, 29
Cal. 622 (1866) (chief of police).
98. Vance v. State. 56 Ark. 402, 19 S. W.
1066 (1892; (insanity).
99. May v. State, 94 Ga. 76 (1894) ; Hinkle
v. State, 94 Ga. 595 (1894) : State v. Whit-
worth, (Mo. 1895) 29 S. W. 595; Cook v.
State, 30 Tex. App 607 (1892).
1. Alabama. Hall v. State, 137 Ala. 44,
34 So. 681 (1902).
California. People v. Sam Lung, 70 Cal.
515, 11 Pac. 673 (1886).
Vermont. State v. Hopkins, 50 Vt. 316,
322, 332 (1877).
47 ADMINISTRATIVE FUNCTIONS. 91
reasonably necessary to the orderly conduct of the case are. 2 not expressly ex-
cluded from the scope of the order, but nevertheless remain in court contrary
to its terms, the presiding judge may ratify and sanction their action, in this
respect, thus placing them in a position equivalent for administrative purposes
to a previous exemption.
Such exemption is matter of administration. A party has no right to insist
that his expert 3 or other special witnesses, or even the members of his imme-
diate family, 4 be allowed to remain.
91. [Functions of Judicial Office] ; Enforcement of the Order. 5 A witness
" under the rule " is not, unless specially permitted, at liberty to remain in the
courtroom after giving his testimony. 6 It may be necessary to require his evi-
dence again as a witness at a later stage of the trial ; to permit him to hear the
testimony of others whom he may be asked to refute is, therefore, within the
mischief which separation seeks to prevent. The judge's order is at times,
especially in cases of magnitude, enforced by the sheriff." The parties may
furnish the latter with a list of the witnesses to enable him to see that they
withdraw from the courtroom. 8 But a party is not under obligation to do so. 9
Where the list is not furnished, or in case of witnesses who for any reason
have not been placed on it, it is the duty of each party to see that the witnesses
whom he proposes to have sworn do not enter the courtroom before they are
called to testify. 10 A more usual course is to require counsel to state to the
judge the names of the witnesses to be affected in the order and for the judge
to direct the sheriff as to the time at which their appearance will be required
in court for the purpose of testifying, and as to the other particulars of the
order. 11
A common practice is for the judge merely to announce from the bench that
certain witnesses are directed to withdraw. The effect of their failure to do
so, or of their returning to the courtroom before being called for the purpose
of testifying, 12 or of their conversing or consulting with other witnesses or
third persons, either while the trial is actually going on or during adjourn-
ment, 13 may be, and usually are also stated to them. It is within the adminis-
2. Shaw v. State, 102, Ga. 660, 29 S. E. 477 6. Roach v. State, 41 Tex. 261, 263 (1874).
(1897) (two witnesses assisting in the prose- 7. Hey v. Com. 32 Gratt. (Va.) 946, 34 Am.
cution). R. 799 (1879).
3. Roberts v. State, 122 Ala. 47, 25 So. 238 8. Anon., 1 Hill ( S. C.) 251 (1833).
(1898) ; Atlantic & B. Ry. Co. v. Johnson, 127 9. Anon., 1 Hill (S. C.) 251 (1833).
Ga. 392, 56 S. E. 482 (1907). State v. Forbes, 10. Anon.. 1 Hill (S. C.) 251, 254 (1833).
Ill La. 473, 35 So. 710 (1903). 11. Golden v. State, 19 Ark. 590, 598
4. McGuff v. State, 88 Ala. 147, 150, 7 So. (1858).
35 (1889); May v. State, 94 Ga. 76 (1894) 12. Golden v. State, 10 Ark. 590, 598
(brother); Hinkle v. State, 94 Ga. 595, 21 (1858).
S E. 595 (1894) ; Bond v. State, 20 Tex. App. 13. Broyles v. Priaock, 97 Ga. 643, 25 S. E.
437 (1886). 389 (1895).
5. 1 ( hamberlayne. Evidence, 195.
92-94 COURT AND JURY; COURT. 48
trative powers of the court to decline to allow the offending witness to testify, 14
though it is also within his power to receive the evidence. 15
92. [Functions of Judicial Office} ; Consequences of Disobedience. 16 Where
an express order of separation has been made 1T and a witness, though aware
of its terms and that it applies to himself, 18 willfully 19 violates it, by listening
to the evidence of the other witness as given in court, either before he has testi-
fied or after 2(J he has himself testified ; or mingling with persons who have
heard the other witnesses, 21 he is in contempt of court and ready to be dealt
with by the presiding judge as seems just and proper under the particular
circumstances of the case.
93. [Functions of Judicial Office] ; Party's Relation to Violation. 22 If the
disobedience is not only wilful on the part of the witness, but is aided and
abetted by a party 23 or his counsel, 24 the right and propriety 25 of refusing to
hear the evidence of the witness is undoubted, and would in many instances
be exercised. Where the party is himself without fault in the matter, to ex-
clude a guilty witness is in reality to punish an innocent person, 26 or enable one
of his witnesses to do so ; and at the same time, avoid the possibly unwelcome or
irksome task of testifying at all. 27
It is, therefore, the practice, i.e., a customary exercise of judicial adminis-
tration, to receive the testimony of the offending witness, in the absence of
facts from which the inference of connivance by the party or his counsel in
the misconduct of the witness 28 can reasonably be drawn.
94. [Functions of Judicial Office] ; Proceedings against offending Witness. 29
The witness, in any event, may himself be dealt with by the court, as for
a contempt.
14. Alabama. gloss-Sheffield Steel & Iron W. 76 (1899); Clemmons v. Clemmons
Co. v. Smith, 40 So. 91 (1905); Jarvis v. (Nebr.) 96 N. W. 404 (1901); Pile v. State,
State, 138 Ala. 17, 34 So. 1025 (1902). 107 Term. 532, 64 S. \V. 476 (1901).
Kentucky. Crenshaw v. Gardner, 25 Ky. 20. Sartorius v. State, 24 Miss. 602 (1852)
Law Rep. 506, 76 S. W 26 (1003) ; Gilbert v. 21. Porter v. State, 2 Ind. 435 (1851).
Com., Ill Ky. 793, 64 S. W. 846 (1901). 22. 1 Chamberlayne, Evidence, 197.
15. Sharpton v. Augusta & A. Ry. Co., 72 23. Kentucky. Crenshaw v. Gardner, 76
S. C. 162. 51 S. E. 553 (1905). S. W. 26 (1903).
16. 1 Chamberlayne, Evidence. 196. Virginia. Com. v. Brown, 90 Va. 671,
17. R. v. Fursey, 3 State Tr. (N. S.) 543, 675, 19 ,s. E. 447 (1894).
564 (1833). 24. Bird v. State. 50 Ga. 585, 589 (1874) ;
18. A bystander unexpectedly called upon Com. v. Crowley, 168 Mass. 121, 46 N. E. 415
to testify after the making of an order is not (1897).
excluded from the witness stand by reason of 25. Dyer v. Morris, 4 Mo. 214 (1835) ;
his previous presence in the court room. Trujillo v. Terr. (X. M. 1802), 30 Pac. 870.
Laughlin v. State, 18 Oh. 09 (1849). 26. Hubbard v. Hubbard, 7 Oreg. 42 (1879).
19. An inadvertent violation without con- 27. Keith v. Wilson, 6 Mo. 435, 441 (1840).
nivance by the party is not ground for exclu- 28. Holder v. U. S., 150 I". S. 91 (1893).
sion. State v. Sumpter, 153 Mo. 436, 55 S. 29. 1 Chamberlayne, Evidence, 198.
49 ADMINISTRATIVE FUNCTIONS. 95-97
Direct Punishment of Conniving Party, If a party has aided and abetted
the offense, he may be treated in like manner. ' M
The inference of bad faith is still more cogent in case of a party, 31 and the
jury may be asked to consider his conduct in weighing the evidence. 32
95. [Functions of Judicial Office] ; Swearing of Witnesses. 33 General
Rule. Where not regulated by statute the administration of the oaths im-
posed upon interpreters and other witnesses takes place under the direction of
the court. As the sanction of truthfulness which the imposition of an oath
seeks to attain, consists in u laying hold of the conscience of the witness and
appealing to his sense of accountability/' 34 it must.be, so far as possible, im-
posed in a form binding upon his conscience, or such as to arouse his fear of
punishment. 35 The duty of ascertaining the nature of such an oath devolves
upon the judge, as a preliminary finding of fact, on voir dire; though he may
delegate to a party the duty of eliciting any facts necessary to his contention; 36
and, in any event, counsel have the right to bring out by examination con-
ducted by themselves, facts of advantage to their position; the burden of
proof being on the party objecting to the competency of the witness. 37
96. [Functions of Judicial Office] ; Method of Inquiry. 38 The subject of
inquiry, being as to the existence of a particular mental state, belief or fear,
may logically be proved by any of the methods employed in proof of mental
states. The natural and frequently the only source of information on these
particulars is the person himself. His mental attitude may be gathered, (1)
directly from his answers as a witness upon voir dire, or (2) indirectly from
evidence of his declarations as narrated by others.
97. [Functions of Judicial Office]; Children as Witnesses; Insane Persons. 39
- The examination of children as to a belief in future punishment sufficient
to make the oath, when administered, of binding effect, is usually conducted by
the judge himself, 40 whose finding will not, as a rule, be revised. 41
Feeble-blinded and Insane Persons. Feeble-minded and insane persons
30. Hagan v. State, 45 La. Ann 839 (1893). (1854) ; Gray v. Macallum, 2 Brit. Col. 104
31. Laughlin v. State, 18 Oh. 99 (1849). (1892).
32. Davenport v. Ogg. 15 Kan. 363 (1875) 37. Smith v. Coffin, 18 Me. 157 (1841);
33. 1 Chamberlayne, Evidence. 199. 200. Donnelly v. State. 26 X. J. L. 463, 601
34. C'linton v. State, 33 Oh. St. 27 (per (1857): Den v. Vancleve. 5 X. J. L. 589
Aehburn J.) (1877). '1819) ; Attorney-Gen, v. Bradlaugh, 14 Q. B
35. The modern purpose of the oath is to Div. 667 (1885).
call the attention of the witness to God. 38. 1 Chamherlayne. Evidence. 201.
Blackburn v. State, 71 Ala. 319 (1882): 39. 1 Chamberlayne. Evidence. 202.
Curtiss v. Strong, 4 Day (Conn.) 51. 56 40. State v. Crocker. 65 X. J. L. 410, 47
(1809); Clinton v. State. 33 Ohio, 27, 33 All. 643 (1900).
(1877). Its ancient object was rather to di- 41. Com. v. Lynes, 142 Mass. 577, 580
rect the attention of God to the witness. (1886).
36. Com. v. Smith, 2 Gray (Mass.) 516
98,99 COUET AND JURY; COURT. 50
should be examined as to their understanding of the nature and obligation of
an oath in the same manner as is done in the case of children. 42 It has been
doubted whether a difficulty of so permanent a nature might reasonably be
overcome by instruction during an adjournment. 43
98. [Functions of Judicial Office] ; Form of Oath. 44 JX'o particular form of
oath is essential 45 unless one is prescribed by the religion of the witness. 46
Telephone administration. Although the officer administering an oath may
be familiar with the voice of the person swearing, the administration of an oath
over the telephone is not valid for the purpose. 47
99. [Functions of Judicial Office] ; Executive. 48 Inherent in the judicial
office are certain powers conferred upon the presiding judge and designed to
enable him to preserve order, maintain the dignity of his office, to compel and
preserve popular respect for the public administration of justice. Such powers
may, with apparent propriety, be designated the executive or '' police " powers
of a presiding judge; although it may fairly be objected that the difference
between these and the administrative function of the court is but slight. The
power of the judge to enforce, by summary proceedings, 49 by compliance with
any order for securing calm deliberation and orderly quiet in the courtroom 50
is undoubted, 51 subject to the limitation imposed by constitutional or statutory
provisions. 52
Federal Courts. The power to punish for contempt is an inherent attribute
42. Holcomb v. Holcomb, 28 Conn. 179 470; State ex rel. Stewart v. Reid, 118 La.
(1859); R. v. Whitehead, L. R. 1 C. C. 33, 827, 43 So. 455 (1907).
38 (1866) ; R. v. Hill, 2 Den. C. C. 254 (1851). 50. A summary proceeding, in this con-
43. R. v. Whitehead, L. R. 1 C. C. R. 33 nection may mean one where the party offend-
(1866) (idiot). ing is not given a trial by jury. Yoder v.
44. 1 Chamberlayne, Evidence, 203. Com. (Va. 1907), 57 S. E. 581.
45. Miller v. Salomons, 7 Exch. 475 (1852) ; 51. Ormond v. Ball. 120 Ga. 916. 48 S. E.
Atcheson v. Everitt, Cowp. 382 (1776); 383 (1904); State v. Rose (Kan. 1906), 85
Omychund v. Barker, 1 Atk. 21 (1744). "A Pac. 803; Back v. State (Nebr. 1906), 106
Jew is to be sworn on the Bobk of the Law N. W. 787. The primary purpose of such
and with his head covered, a Brahmin by the punishment is the vindication of public au-
mode prescribed by his peculiar faith, a thority. Powers v. People, 114 111. App. 323
Chinese by his special ceremonies, and the (1904).
like." Miller v. Salomons, 7 Exch. 535, 558 52. Arkansas. Ford v. State, 69 Ark. 550,
(per Alderson, B.). 64 S. W. 879 (1901).
46. R. v. Pah-Mah-Gay, 20 Q. B. U. C. 195 Indiana. Mahoney v. State, 72 X. E 151
(I860). (1904).
47. Sullivan v. First Nat. Bank (Tex. Civ. Xorth Carolina. In re Gorham, 129 X. C.
App. 1904) 8:5 S. W. 421. 481, 40 S. E. 311 (1901). While courts do
48. 1 Chamberlayne, Evidence, 204. not derive their power to punish for contempt
49. Only a breach of order and decorum from any statute, it is their duty to conform
in the presence of the court in actual session to a statute which does not abridge this
and within its view and hearing can be prop- power, but simply points out the manner in
erly dealt with without notice to show cauae. which it shall be exercised. Ex parte Morris,
Reymert v. Smith (Cal. App. 1907), 90 Pac. 28 Ohio Cir. Ct^R. 611 (1906).
51
EXECUTIVE FUNCTIONS.
100
of the federal courts, vested in them by Const. U. S. art. 3, 1, granting to
them the judicial power of the nation. 53
Protected by Constitution. The right to prevent the commission of
breaches of order in the presence of the judge while sitting at a trial is pro-
tected by a judicial power, in the proper exercise of which, the entire commu-
nity is deeply interested and concerned. Any attempt on the part of the legis-
lature to abridge this right is invalid, as tending to alter the constitutional dis-
tribution of power between different branches of government. 54
100. [Functions of Judicial Office] ; Require Order and Decorum. 55 The
court may punish insulting language, 50 or disorderly conduct 57 such as carry-
ing weapons 5S or appearing in court intoxicated 59 or indulging in objection-
able language. 00 !So insults in papers submitted to the court 61 or filed 62 are
punishable. Abuse of the trial court may properly be deemed contrary to the
administration of justice 3 when used on appeal and so with attacks on the
court officers of the lower court. 64 Writing letters to the court designed to
influence his conduct in the pending litigation 65 or to upbraid him for past
conduct may also be punished, but merely writing to the opposing attorney
53. In re Xevitt, 117 Fed. 448, 54 C. C. A.
622 (1902).
54. State v. Shepherd, 177 Mo. 205, 76 S.
W. 79 (1903).
55. 1 Chamberlavne, Evidence, 88 205-212.
v * OO
56. State ex rel. Stewart v. Reid, 118 La.
827, 43 So. 455 (1907). In re Chartz (Nev.
1905), 85 Pac. 352.
In a certain case defendant, an attorney of
the Supreme Court of Nevada, in a petition
for rehearing of a cause in which the Su-
preme Court had held a statute limiting the
hours of labor constitutional, stated that in
hi? opinion the decisions favoring the power
of the state to limit the hours of labor on
the ground of the police power of the state
were all wrong, were written by men who
have never performed manual labor, and by
politicians and for politics, and that they
did not know what they wrote about. Such
a statement was regarded as constituting a
contempt of Supreme Court, which was not
purged by defendant's disavowal of any intent
to commit a contempt and by his apology.
In re Chartz (Xev. 1905) 85 Pac. 352.
Davies v. State (Ark. 1905), 84 S. W. 633.
State ex rel. Stewart v. Reid, 118 La. 827,
43 So. 455 (1007) district attorney.
Hill v. Crandall. 52 111. 70 (1869).
57. Holman v. State. 105 Ind. 513. 5 X. E
5.16 H885); U. S. v. Patterson, 26 Fed. 509
i
58. Sharon v. Hill, 24 Fed. 726 (1885) (at-
torney ) .
59. Marcum v. Hargis, 31 Ky. Law. Rep.
1117, 104 S. W. 693 (1907); Com, v. Clark,
13 Pa. Co. Ct. 439 (1893).
60. Indiana. Dodge v. State, 140 Ind. 284,
39 X. E. 745 (1894).
Iowa. Russell v. French, 67 Iowa 102, 24
X. W. 741 (1885).
North Dakota. State v. Crum, 7 N. D. 299,
74 X. \V. 992 (1898).
61. Lamberson v. Superior Court of Tulare
County (Cal. 1907), 91 Pac. 100.
62. Lamberson v. Superior Court of Tulare
County (Cal. 1907), 91 Pac. 100; Sommers
v. Torrey, 5 Paige 54, 28 Am. Dec. 411
(1835) : U. S. v. Church, 6 Utah 9, 21 Pac.
503, 524 (1889). Where the papers are filed
in the ordinary course of the proceedings, it
will not be assumed that the attorney filing
them acted in bad faith. Tracy v. State, 28
Ohio Cir. Ct. R. 453 (1906) (motions).
63. Sears v. Starbird, 75 Cal. 91, 16 Pac.
531, 7 Am. St. Rep. 123 (1888). In re
Thompson, 46 Kan. 254. 26 Pac. 674 (1891) ;
In re Dalton, 46 Kan. 253, 26 Pac. 673 ( 1891 ) .
64. In re Breck, 4 Fed. Cas. Xo. 1,823
(1876).
65. State v. Johnson ^Ohio (1908), 83 N.
E. 702.
66. State v. Waugh. 53 Kan. 688, 37 Pac.
165 (1894); In re Pryor, 18 Kan. 72, 26
101 COURT AXD JURY; COURT. 52
criticizing the court is not objectionable as it is not calculated to influence the
court." 7
101. [Functions of Judicial Office]; Compel Obedience to Directions; Admin-
istrative Orders. 08 The directions of a presiding judge, regarding any matter
pertaining to the administration of justice or the use of the judicial machinery
by which it is sought to attain it, are to be promptly and unreservedly obeyed?
In the event of a refusal, it is within the power and it may become the duty
of the judge to enforce his order.
Enforcement of Rights. Closely analogous to this requirement of obedi-
ence to an order of the court relating to the administration of justice, is that
which arises where an order is made in favor of one of the parties against the
other in vindication of a right previously ascertained to exist; or provi-
sionally assumed for administrative purposes, as where a preliminary order is
made, by way of injunction or otherwise.
Civil Contempts. Where the order is made in connection with relief
granted a party, as part of a right established by him, as where a defendant is
ordered to comply specifically with the terms of a contract which he is found
to have made, a failure to obey such an order is a civil contempt. In other
words, a person who fails or refuses to do something which he has been or-
dered to do, or does something that he has been ordered not to do, for the bene-
fit of the opposite party to a cause, is guilty of a civil 'contempt, and the object
of the punishment is to coerce the performance of an aet remedial in its
nature. 69
Criminal Contempts. Should it happen, however, that the act which a
person is ordered to do is one which affects the due and orderly administration
of justice, rather than applies to the rights of the parties, the dignity of the
court itself is involved and an entirely different situation, viewed from a moral
or .social standpoint, is developed. The interests of society demand that such
an order should be enforced in its own behalf, i.e., by punishment. Such a
contempt is a criminal one. In all cases where such an offense is claimed, an
element of wilful intent may well be required.
Advice of Counsel. Advice of counsel is no defense to a proceeding for
contempt of court ; although where the party said to be in contempt is a lay-
man and not an officer charged with the enforcement of the law the fact may
be considered in mitigation. 70
Notice Necessary. In either case the person to be affected by proceedings
in contempt must have had notice of the issuance of the order. 71
Am. Rep. 747 (1877); Matter of Walace, 4 69. Ex parte Clark, 208 Mo. 121, 106 S.
Moore P. C. N. S. 140, L. R. 1 P. C. 283, W. 090 (1907).
36 L. J. P. C. 9, 15 Wkly. Rep. 533, 16 Eng. 70. Coffin v. Burstein, 74 X. Y. S. 274. 68
Reprint 269 (1866). App. Div. (1902); Royal Trust Co. v. Wash-
67. Fellman v. Mercantile Fire & Marine burn, etc., Ry. Co. (Wis. 1902), 113 Fed.
Ins. Co., 116 La. 723, 41 So. 49 (1906). 531.
68. 1 Chamberlayne, Evidence, 213. 71. State v. McGahey (X. D. 1903), 97
53 EXECUTIVE FUNCTIONS. 102, 103
Impossibility of performance, not caused by the fault of the person in
question is an excuse. 72
Jurisdiction. lu all proceedings for the enforcement of a judicial order,
the fact that the court making the order had jurisdiction is an important pre-
liminary fact to be affirmatively shown. 73 If the court has jurisdiction, the
order must be obeyed though it may have been improvidently or erroneously
granted- 74
102. [Functions of Judicial Office] ; Attorneys. 75 A practitioner who coun-
sels and advises the commission of an act contrary to the dignity of the court is
deservedly deemed guilty of the same offense, as he who follows his advice. 76
Counsel must at once desist from speaking for a client when ordered by the
court to do so. 77
Advice given in good faith does not, however, subject the attorney to punish-
ment. A lawyer has the right to advise his client as to the validity of an
order of court, or of a writ issued under its authority, so far as this affects the
client's interests: and his advice to the effect that such order or writ is illegal
and void, if given in good faith, will not render him liable for contempt, be-
cause of an error in judgment. But he is guilty of contempt if he goes beyond
the right to advise in matter of law and, actuated by a spirit of resistance,
counsels or conspires with his client or others to disobey an order of court and
obstruct its enforcement. 78
103. [Functions of Judicial Office] ; Others Subject to Directions. 79 The
duty to obey the orders of the court extends to corporations and to their
X \V. 865 It has even been held that where 378 (1906) : Swedish-American Telephone Co.
disobedience to a decree is not wilful, and v. Fidelity & Casualty Co of Xew York,
does not clearly appear to have arisen from 208 111. 562, 70 X. E. 768 (1904; Pike v. Frost
an intent to set at naught or bid defiance fWis 1005), 130 Fed. 865. See also Russell
thereto, the power to punish for contempt v. Lumber Co., 102 Ga. 563, 29 S. E. 271
cannot be properly exercised. Kahlbon v. (1897).
People, 101 111. App. 567 (1902). A con- 75. 1 Chamberlayne, Evidence. 214-220.
tempt must be wilful, and cannot arise from 76. People v. Tenth Judicial Dist. Ct., 29
mere inability. Moseley v People. 101 111. Colo. 182, 68 Pac. 242 (1901): Lowenthal v.
App. 564 (1902). If a person has actual Hodge, 120 X. Y App. Div. 304, 105 X. Y.
knowledge of an order of court, he is liable Suppl. 120 (1907). See Territory v. Clancy,
for the consequences of violating it. although 7 X. M. 580, 3.7 Pac. 1108 (1894).
he has not been formally served with it. In 77. EJC parte Shortridge (Cal. App. 1.907),
re Wilk (X. Y. 1907) 155 Fed. 943. 90 Pac 478.
Personal service has, however, been re- 78. Anderson v. Comptois, 109 Fed. 971.
quired. Grant v. Greene. 106 X. Y. S. 532, 48 C. C. A. 1 i 1901 i : In re Dubose. 109 Fed.
121 App. Div. 756 (1907). 971. 48 C. C. A. 1 (1901). [Judgment af-
72. McHenry v. State (Miss. 1907), 44 firmed on rehearing 1 11 Fed. 998. 50 C. C. A.
Stfuth. 831. 76.] See also Wells v. Com.. 21 Grat. 500,
73. Early v. People. 117 111. App. 608 508 (1871).
(1905). 79. 1 Chamberlayne, Evidence. 221-226.
74. Meeks v. State. 80 Ark. 579, 98 S. W.
104
COUKT AND JURY; COURT.
54
officers, 80 and to municipal 81 or unincorporated 82 associations to court offi-
cers 83 and clerks of court 84 or other attendants, to sheriffs 85 or constables or
to jurors. 80 The power also extends to the conduct of proceedings before in-
ferior tribunals 87 or to boards 88 or to the general public. sy The court also
has control of witnesses and may enforce their attendance t(0 or may require
them to produce documents as directed," 1 to be separated >J ~ or to be sworn. 93
104. [Functions of Judicial Office] ; Protect the Course of Justice. 94 The
presiding judge will protect the purity and unobstructed course of justice as
a matter of paramount importance. -More insulting to the dignity of a court
of justice than any disorderly disturbance of its outward proceedings, or the
most contemptuous refusal to obey the will of its minister presiding at the
80. Sercomb v. Catlin, 128 111. 550, 21 N.
E. 606, 15 Am. St. Rep. 14? (1889) ; Una v.
Dodd, 39 N. J. Eq. 173 (1884); Davis v.
New York, 2 Duer 451 (1853).
81. Marson v. City of Rochester, 185 N. Y.
602, 78 N. E. 1106 (1906) [affirming 97 N. Y.
Suppl. 881J ; Marson v. City of Rochester, 112
X. Y. App. Div. 51, 97 X. Y. Suppl. 881
<1906).
82. Patterson v. Wyoming Valley Dist.
Council, 31 Pa. Super. Ct. 112 (1906).
83. In re Birdsong, 39 Fed. 599, 4 L. R. A.
628 (1889).
State v. O'Brien, 87 Minn. 161, 91 N. W.
297 (1902).
84. State v. Simmons, 1 Ark. 265 (1839);
In re Contempt by Two Clerks, 91 Ga. 113,
18 S. E. 976 (1893) ; Ex p Thatcher, 7 111.
167 (1845); Territory v. Clancey, 7 N. M.
580, 37 Pac. 1108 (1894).
Cross v. State, 11 Tex App. 84 (1881)
85. Arkansas. In re Lawson, 3 Ark. 363
(1840).
Georgia. Hunter v. Phillips, 56 Ga. 634
(1876).
86. In re Summerhayes, 70 Fed. 769 (1895).
Georgia. State v. Helvenston, R. M.
Charlt. 48 (1820).
Indiana. Murphy v. Wilson, 46 Ind. 537
(1874).
New Jersey. Crane v. Sayre, 6 N. J. L. 110
(1822).
yew York. Ex p. Hill, 3 Cow. 355 (1824).
87. California. In re Rogers, 129 Cal. 468,
62 Pac. 47 (1900).
88. Spokes v. Banbury, etc., Bd. of Health,
11 ,Tur. (N. S.) 1010, 35 L. J Ch. 105, 13
L. T. Rep. '(N. S.) 453 (1865) [affirming
L. R. 1 Eq. 42, 14 Wkly. Rep. 128].
89. Orman v. State, 24 Tex. App. 495, 6
S. W. 544 (1887).
State v. Doty, 32 N. J. L. 403. 90 Am. Dec.
671 (1868); State v. Keene, 11 La. 596
(1837); Thomas v. Gwynne, 8 Beav. 312
( 1845 ) ; McCartney v. Simonton, Ir. R. 5 Eq.
594 (1843).
90. Baldwin v. State, 126 Ind. 24, 25 N. E.
820 (1890); State v. Newton, 62 Ind. 517
(1878); Tredway v. Van Wagenen, 91 Iowa
556, 60 X. W. 130 (1894).
91. The documents should be both relevant
and material.
California. Ex p. Zeehandelaar, 71 Cal.
238, 12 Pac. 259 (1886).
Kansas. Davis' Petition, 38 Kan. 408, 16
Pac. 790 (1888). Compare In re Merkle, 40
Kan. 27, 19 Pac. 401 (1888).
Montana. In re MacKnight, 11 Mont. 126,
27 Pac. 336, 28 Am. St. Rep. 451 (1891).
\ew lork. Matter of Leich, 65 N. Y.
Supp. 3, 31 Misc. 671 (1900): Matter of
Odell, 19 N. Y. St. 259, 6 Dem. Sur. 344
(1887).
Pennsylvania. Rauschmeyer v. Bank, 2 L.
T. (N. S.) 67 (1880).
92. California. People v. Boscovitch, 20
Cal. 436 (1862).
Georgia. Hoxie v. State, 114 Ga. 19, 39
S. E. 944 ( 1901 ) .
Ohio. Dickson v. State, 39 Ohio St. 73
(1883).
Texas. Cross v. State, 1 1 Tex. App. 84
(1881).
Canada. Sadlier v. Smith, 14 U. C. L. J.
(X. S.) 30 (1877).
93. Ex p. Stice, 70 Cal. 51, 11 Pac. 459
(1886); Heard v. Pierce, 8 Cush. 338, 54
Am. Dec. 757 (1851) ; Com. v. Roberts, 2 Pa.
L. J. Rep. 340. 4 Pa. L. J. 126 (1841).
94. 1 Chamberlayne, Evidence, 227, 228.
o3 EXECUTIVE FUNCTIONS. 105, 106
trial, is any attempt to corrupt or debauch the moral quality of justice itself.
The judge will be prompt to resent and punish so grave an offense against
those interests of society of which he is guardian. Xo person whatever will
be permitted to assail in public addresses, or otherwise, the motives and char-
acter of the judges of courts in such a manner as to bring the administration of
justice into contempt. ' ( ' J From this point of view, a charge against a judge
may be none the less objectionable because it is true. 90
Intent not Material. If the effect of an intentional act is to embarrass the
orderly administration of justice, the fact that the actor disclaims having had
any such purpose or desire is not important. 97
105. [Functions of Judicial Office] ; Attorneys. 98 Any attorney who wil-
fully obstructs the course of justice, even by a nonfeasance," as where he
.contumaceously absents himself from court, 1 may be summarily treated. A
lawyer who advises a course which results in contempt is himself guilty of
that offense. 2 Indeed, the professional knowledge of an attorney renders any
assault on the integrity of justice especially heinous. 3
In general, where an attorney is pursuing in good faith what he supposes
to be his right in a court of justice, he is not guilty of contempt though he
falls into error and violates rules of court and statutes not penal. To consti-
tute contempt in such a case, there must be something in the circumstances
under which the act is done that is disrespectful to the judge or a hindrance of
the administration of the affairs of the court. The act must, moreover, be
done wilfully and for an illegitimate or improper purpose. 4
106. [Functions of Judicial Office] ; Court Officers. 5 A court will protect
officers and appointees exercising powers under it from indignities offered to
them in the discharge of their official duty by attacking them 6 or by attempt-
ing to bribe them. 7 So newspaper attacks on grand jurymen 8 or attempts to
95. U. S. v. Gehr, 116 Fed 520 (1902). 4. Hunt v. State, 27 Ohio Cir. Ct. R. 16
96. Tracy v. *tate, 28 Ohio Cir. Ct. R. 453 (1904).
(1906). 5. 1 Chamberlayne, Evidence, 230-237.
97. Terry v. State < Nebr. 1906), 110X. W. 6. O'Xeal ( Fla. 1903 1, 125 Fed. 967;
733; King v. Charlier .Can. 1903), Rap. Jud. Ex parte McLeod, 120 Fed. 130 (1903).
Que. 12 B. R. 385 The highest consideration of the public good
98. 1 Chamberlayne, Evidence, 229. demands that the courts protect their officers
99. Ex parte Clark, 208 Mo. 121, 106 S. W. against revenges induced in consequence of the
990 (1907). performance of their duties, as well as
1. In re Clark, 126 Mo. App. 391. 103 S. W. against violence while engaged in the actual
1105 (1907). The absence from the court- discharge of such duties. Ex parte McLeod,
room of an attorney, to the delay and em- 120 Fed 130 (1903).
barrassment of a trial, if it amounts to a 7. Sinnott v. State, 11 Lea, 281 (1883).
contempt. See also Keppele v. Williams, 1 Dall. 29, 1
2. People v. District Court of Tenth Ju- L. ed 23 (1776) (pocketing venire),
dicial District, 29 Colo 132. 6S Pac. 242 8. Allen v. State, 131 Tnd. 599. 30 N. E.
(1901). 109.3 (1892): Fishhack v. State, 131 Ind.
3. Seastream v. Xew Jersey Exhibition 304. 30 X. E. 1088 (1892).
Co. (X. J. Ch. 1905), 61 A. 1041 Matter of Tyler, 64 Cal. 434, 1 Pac. 884
Jj 107 COURT AND JURY; COURT. 50
influence jurymen by discussions about a pending case or by attempting to
bribe them U) will be punished by the court. Neither can a juryman be per-
mitted to disqualify himself by expressing an opinion 011 a pending case. 11
So where a lower officer like a coroner seeks to deceive the court by presenting
a fictitious claim this is an obstruction to justice. 12
107. [Functions of Judicial Office] ; Embarrassing the Administration of
Justice. 13 Any publication concerning a pending cause or regarding a matter
likely to become a subject of judicial inquiry, which in any way tends to em-
barrass u the orderly administration of justice will be deemed an offense
against the dignity of the court. 15 To charge, for example, the supreme court
of a state and certain of its judges with having been influenced by corrupt
motives in their rulings in causes still pending for rehearing, is obviously calcu-
lated to bring justice into contempt. 16 It is not material, in this connection,
whether the statements made are true 17 or false; or whether, if false, they were
by reason of intention or inadvertence, 18 or that the assault was directed at the
members of the court and that the latter were not affected by it. 19 The pro-
tection is not designed for the personnel of the court, but for the dignity of
judicial administration. The existence of a pending suit which the publication
may affect, while a usual incident in the mischief, is not one absolutely essential
to liability for publication. The true object of the court's action is the pro-
tection from public assault of the administration of justice. The following
distinction has properly been taken : Contempts relating to a pending cause
may either consist in abusing parties concerned in cases pending in court, or in
prejudicing mankind against persons before the cause is heard, while con-
(1884). See also Bergh's Case, 16 Abb. Pr. (1903), 2 K. B. 432, 89 Law T. 439, 52 Wkly.
(N. S.) 266 (187,)): In re Van Hook (N. Rep. i,*5, 67 J. Pac. 421 (1904).
Y. 1818), 3 City Hall Rec. 64. It is not material, in the matter of liabil-
9. Baker v. State, 82 Ga. 776, 9 S. E. 743, ity, that the cause is not pending nor to be
14 Am. St Rep. 192, 4 L. K. A. 128 (1889) ; tried at a time then determined. But the
Drady v. Dist. Court of Polk County ( Iowa, circumstance that the matter was to be heard
1905).- 102 X. VV. 115: In re Gorham. 129 judicially at a time then unascertained may
N C 481, 40 S. E. 311 i 1901) ; Davidson v. be relevant upon the question of a suitable
Manlove, 2 Cold. 346 (1865). punishment for the offense. Globe Newspaper
10. Hurley v. Com., 188 Mass. 443, 74 N. E. Co. v. Com., 188 Mass. 449, 74 N. E. 682
677 (19051; Nichols v. Judge Super Ct. (1905).
(Mich. 1902), 89 N. \V. 691; Langdon v. 15. Globe Newspaper Co. v. Com., 188 Mass.
Judges of Wayne Cir. Ct., 76 Mich 358, 43 449, 74 N. E 682 (1905); In re Providence
N. W. 310 118*89): Gandy v. State, 13 Nebr. Journal Co. (R. I. 1907), 68 Atl. 428.
445, 14 N \V. 143 (1882); U. S. v. Carroll, 16. People v. News-Times Pub. Co. (Colo.
147 Fed 947 (1906). 1906), 84 Pac. 912.
11. U. S. v. Devaughan, 25 Fed. Cas. No. 17. Hughes v Terr. (Ariz. 1906), 85 Pac.
14,952, 3 Cranch C. C. 84 (1827). 1058; People v News-Times Pub. Co. (Colo.
12. Ex parte Toepel (Mich. 1905), 102 N. 1906), 84 Pac. 912.
W 369, 11 Detroit Leg N. 759. 18. In re Providence Journal Co. (R. I.
13. 1 Chamberlayne, Evidence, 238- 1907), 68 Atl. 428.
244. 19. People v. News-Times Pub. Co. (Colo.
14. R. v. Parke, 72 Law J. K. B. 839 1906), 84 Pac. 912.
57 EXECUTIVE FUNCTIONS. 108
tempts consisting of scandalizing the court itself need not relate to a pending
suit. 20
So the circulation in the conimunijty of stories calculated to influence the
outcome of litigation 21 or efforts at intimidation 22 is a grave indignity against
justice. The press has, however, a right to publish a correct report of judicial
proceedings. 23 The newspaper may be guilty of a contempt although it is
published in a different place from that of the trial if it circulates at the place
of trial. 24
For a litigant to seek by any means to avoid the due and lawful effect of the
process of a court to whose judgment he has become subject richly merits re-
buke. Thus, when one court has made an order in a cause pending before it,
for a party to institute similar proceedings in another court in order to pre-
vent the enforcement of the prior order is an insult to the court first obtaining
jurisdiction. 25
108. [Functions of Judicial Office] ; Service of Process. 26 A court will re-
quire that the due and regular service of its process should not be impeded,
delayed or obstructed, 27 by those who have notice of the facts. 28 Delaying a
messenger of a court will, therefore, be resented by the judge. 29 Counseling
and advising disobedience or resistance to the commands of such a writ is repre-
hensible as an insult to the cause of judicial administration. 3 " Personal vio-
lence inflicted upon one who is serving the process, because he is doing so, is an
affront to the court out of which it issues. 31
20. State v. Shepherd, 177 Mo. 205, 76 44 L. K. A. 159 (1899); In re Sturoc, 48
b. W. 79 (1903). X- H. 428, 97 Am. Dec. 626 (1869); Myers
21. Sew Hampshire In re Sturoc, 48 N. v. State, 46 Ohio St. 473, 22 X. E. 43, 15 Am.
H. 428, 97 Am. Dec. 626 (1869); Tenney's St. Rep. 638 (1889).
Case, 23 X. H. 162 (1851). 25. Terry v. State (Nebr. 1906), 110 X. YV.
\ew Jersey. In re Cheeseman, 49 X. J. 733.
L. 115, 6 Atl. 513, 60 Am. St. Rep. 596 (188(3). 26. 1 Chamberlayne, Evidence, 245.
tiouth Dakota. State v. Edwards, 15 S. D. 27. California. De Witt v. Fresno Co.
383, 89 X. W. 1011 (1902). Super. Ct., 47 Pac. 871 (1897).
22. State v. Bee Pub. Co., 60 Xebr. 282, 83 Massachusetts. Clark v. Parkinson, 10
N. \\ 204, 50 L. R. A. 195 (1900) ; Burke v Allen 133. 87 Am. Dec. 628 (1865).
Territory, 2 Okla. 499, 37 Pac. 829 (.1894) -. -Veir York. People v. Gilmore, 26 Hun 1
Mackett v. Herne Bay, 24 \\kly. Rep. 845 (1881); Conover v. Wood, 5 Abb. Pr. 84
(1876). The threat employed may U- that (1857).
of popular disapproval. People v Wilson. 64 United States. Alberston v. The T. I.
111. 195, 16 Am. Dec. 528 (1872). Sevius. 4J> Fed. 927 (1892)
23. McClatchy v. Sacramento Co Super 28. State v District Court of Seventh Ju-
Ct , 119 Cal. 413, 51 Pac. 696, 39 L. R. A. licial Dist., 2< Mont. 230. 74 Pac. 412 (1903).
691 (1897). 29. Ex p Page, 1 Rose 1 (1810).
Stuart v. People, 4 111. 395 (1842) ; In re 30. King v. Barnes. 113 X. Y. 476, 21 X E.
Press-Post, 6 Ohio S. & C. PI. 10, 3 Ohio 182. 415. 23 X. Y. St. 263 (1889) [affirming
X. P. 180 (1896). 51 Hun 550. 4 X. Y. Suppl. 247. 22 X. Y.
24. State v. Judge Civ Dist Ct., 45 La. St. 47. 51, 54 (1889)]; In re Xoyes, 121
Ann. 1250, 14 So. 310, 40 Am. St. Rep. 282 Fed. 209, 57 C. C. A. 445 (1902).
(1893) -. Telegram Xewspaper Co v. Com . 172 31. Price v. Hutchinson (Eng.), L. R. 9
Mass. 294, 52 X. E 445, 70 Am. St. Rep. 280, Eq 534, 18 Wkly. Rep. 204 (1870).
109,110 COUET AND JURY; COURT. 58
109. [Functions of Judicial Office] ; Witnesses. 32 The witnesses have a
right to be protected against the use of threatening language or insults 33 or
against arrest 34 while attending court or while going to or from the court house
or against attempts at bribery. 35 The witness may himself be guilty of con-
tempt by false swearing 36 which is a grave insult to the court. Other forms of
obstructing justice are by intimidating 3T a witness or by preventing a witness
duly summoned from attending 3S and giving his testimony or by advising him
to leave the jurisdiction 39 or by refusing to produce a clerk 40 or other person
under his control.
110. [Functions of Judicial Office]; Enforcement of Contempt Proceedings. 41
As mentioned elsewhere, the executive powers of the court are most fre-
quently ascertained and vindicated upon proceedings for contempt, so called.
The proceeding is a special one, without direct connection with the matter in
which it occurs. 42 Xo court is required ex debito justitice to find a person in
contempt and award punishment for it. The matter is one of administration.
Long delay in applying for relief may furnish ground for declining to act. 43
Being to ascertain guilt and, if found, to award punishment for it, the pro-
ceeding partakes of the nature of a criminal trial. 44 The complaint requires
equal particularity of statement, 45 and proof of guilt should be clear and satis-
factory. 40 A contempt proceeding is summary, and the extent of the hearing
as to questions of law rests in the discretion of the court, though one charged
with contempt has the right to be heard in his defense. 47
32. 1 Chamberlayne, Evidence, 246-252. Swab. -6 Tr. 517 (1861) ; Re Young, 137 N. C.
33. U. S. v. Carter, 25 Fed. Cas. Xo. 14,740, 552, 50 S. E. 220 (1905).
3 Cranch C. C. 423 (1829); U. S. v. Em- 38. Montgomery v. Palmer, 100 Mich. 436,
erson, 25 Fed. Gas. No. 15,050, 4 Cranch 59 N. W. 148 (1894).
C. C. 188 (1831) ; Welby v. Still (Eng. 1892), 39. Whittem v. State, 36 Ind. 196 (1871) ;
66 L. T. Rep. (X. S.) 523. In re Whetstone, 9 Utah 156, 36 Pac. 633
34. Smith v. Jones, 76 Me. 138, 49 Am. (1893).
Rep. 598 (1884); State v. Buck, 62 N. H. 40. Green v. Hill, 3 Del. Ch. 92 (1866).
670 (1883). See also Butler v. People, 2 41. 1 Chamberlayne, Evidence, 253.
Colo. 295 (1874). 42. In re Depue, 185 X. Y. 60, 77 X. E. 798
35. U. S. v. Carroll, 14 Fed. 947 (1906: (1906).
Fisher v. McDaniel, 9 Wyro. 457, 64 Pac. Therefore, it is no defense to such pro-
1056 (1901). ceedings that the prior conduct of the main
36. Beattie v. People, 33 111. App. 651 action has been irregular. Christensen v.
(1889) ; Gibson v. Tilton (Md. 1829), 1 Bland People, 114 111. App. 40 (1904).
3,52, 17 Am. Dec. 306: Ricketts v. State (Tenn. 43. Matheson v. Hanna-Schoellkopf Co., 122
1903), 77 S. W. 1076; Berkson v. People, 154 Fed. 836 (1903).
111. 81. 39 X. E. 1079 (1894) : Bernheimer v. 44. U. S. v. Richards. 1 Alaska 613 (1902).
Kelleher (X. Y. 1900). 31 Misc. 464, 64 X. Y. 45. Back v. State ( Xebr. 1906), 106 X. W.
Suppl. 409; In re Rosenburg, 90 Wis. 581, 787. But a statute allowing for criminal ap-
63 X. W. 1065, 64 X. W. 299 (1895) :In re peals does not apply to judgments enforcing
Fellerman. 149 Fed. 244 (1906): In re Gos- the dignity of the court. State v. Peralta,
lin, 180 X. Y. 505, 72 X. E. 1142 (1904); 115 La. 530, 39 So. 550 (1905).
Seastream v Xew Jersey Exhibition Co. (X. 46. Wells v. Dist. Court of Polk County
J. Ch. 1905). 01 Atl. 1041. (Iowa 1905), 102 X. W. 106.
37. Shaw v. Shaw. S Jur. (X. S. ) 141, 31 47. State v. Xicoll, 40 Wash. 517, 82 Pac.
L. J. P. M. 35, 6 L. T. Rep. (X. S.) 477, 2 895 (1905).
59 EXECUTIVE FUNCTIONS. 111-113
111. [Functions of Judicial Office] ; Civil and Criminal Cases. 48 Civil con-
tempts have been defined as being such contempts as affect a private person, as,
for instance, where a party refuses to obey an order of court which will benefit
such private persons. 49
Criminal contempts are those which are committed in presence of the court
and disturb its administration of justice either physically and directly, as by
disorderly conduct, or morally and indirectly by bringing the administration
of justice into public disgrace. Criminal contempts are all acts committed
against the inajestyof the law, or against the court as an agency of the govern-
ment, and in which, therefore, the whole people are concerned. 50
112. [Functions of Judicial Office]; Direct and Constructive. 51 Direct Con-
tempts. The administrative power and dignity of the court necessarily involve
the right of punishing summarily for offenses against justice committed in the
immediate presence and hearing of the judge, 52 or so near as to interrupt pro-
ceedings before him. 53 These are called direct contempts. 54 The judge needs
no evidence ; he is himself, in such cases, the percipient witness ; 55 should
pleadings be deemed advisable, they may be of the briefest and simplest de-
scription. 50
Constructive Contempts. Constructive contempts, on the other hand, may
be defined as those arising from matters not occurring in court, but which tend
to degrade or make impotent the authority of the judge, or which tend to
impede or embarrass the administration of justice. 57 In dealing with con-
tempts not committed in the presence of the judge, the offender must be brought
before the court by a rule or some sufficient process. 58
113. [Functions of Judicial Office] ; Constructive Presence of Judge. 59 The
court is said to be present wherever during its sessions, the judge, court officers,
48. 1 Chamberlayne, Evidence, 254. in the sight and hearing of the judge. Fell-
49. State v. Shepherd. 177 Mo 205, 76 S. W. man v. Mercantile n\ & M. Ins. Co., 116 La.
79 (1903) Contempt proceedings in con- 733, 41 So 53 (1906). A court may punish
nection with equity processes as for the for a direct contempt without issue or trial
violation of an injunction are civil in their in any form. Burdett v. Com., 103 Va.
nature and a deposition may be used David- 838, 48 S. E. 878 (1904)
son v. Munsey i Utah 1905), 80 Pac 743. Venue. In a prosecution for contempt in
50. State v Shepherd, 177 Mo 205, 76 S. the presence of the court, defendant is not
\V. 79 (1903). entitled to a change of venue because of
51. 1 Chamherlayne, Evidence. 255 alleged prejudice Connell v. State (Xebr.
52. Illinois Ferriman v. People, 128 111. 1907 i 114 N. W. 294.
App. 230 (1906): 55. Oordon v. State (Xebr. 1905), 102 X.
Indiana. Mahoney v State, 72 X E. 151 W. 458.
(1904). 56. Ferriman v. Peple, 128 111. App. 230
Kansas. State v. Anders, 68 Pac. 668 (1906).
(1902). 57. O'Xeil v. People, 113 111. App. 195
53. Ex parte Clark, 208 Mo. 121, 106 S. W. (1904).
990 ( 1907. 58. Burdett v. Com., 103 Va. 838, 48 S. E.
54. The court can punish for a direct con- 878 (1904).
tempt only where the offense took place 59. 1 Chamberlayne, Evidence, 256.
114-116 COURT AND JUKY; COURT. * 60
jurors aud other persons in attendance for the performance cf judicial or
ministerial functions in aid of judicial proceedings, are present, engaged in
their respective duties, in the part of the courthouse reserved to their use. 00
114. Judge Sitting as a Jury. 01 With exceptions due to differences in
intellectual equipment and a consequent absence of danger of being misled by
certain classes of evidence liable to be overestimated by an untrained mind,' 12
the rules which govern the action of a jury apply equally to a judge sitting
instead of one. Thus, a verdict will be directed where but one outcome of a
hearing would be rational. 03 There must be a finding on 'every material fact
alleged in the complaint and controverted by the answer necessary to support
the judgment rendered. 04 Where the evidence is uncontradicted, the party is
entitled to definite and direct findings with reference thereto. 05
115. [Judge Sitting as a Jury] ; Rulings of Law. 00 While there is a certain
appearance of incongruity in the spectacle of a judge solemnly laying down
rules of law to himself as a jury to guide his deliberations as to matters of fact,
it is within the right of a litigant to demand that he do so. 07 provided there is
sufficient evidence to render a proposition applicable to the case. 08 On trial
by the court, a party asking a ruling correct in law has a right to know whether
in deciding the case against him the judge acted on the rule of law stated. 09
Where a decision rests on one of two alternatives, one adjudged under a cor-
rect ruling, and the other under an incorrect one, the decision cannot be sus-
tained. 70 "
116. [Judge Sitting as a Jury]; Administrative Questions. 71 Where the
judge is satisfied as to the evidence he is. not obliged to listen to argument, 72
but he may if he wishes take a view. 1 " The court deals with the weight of
60. 1 Com. v. Clark, 13 Pa. Co. Ct 4.1'' 65. Lackmann v. Kearney, 142 Cal. 112, 75
(1893); U. S. v. Anonymous, 21 Fed 701 Pat-. 668 (1904).
(1SS4). A claim to occupy a room in the 66. 1 Chamber layne, Evidence, 259.
courthouse as a matter of right, coupled with 67. Murphy v. Smith, 112 111 App. 404
retention of possession cannot be deemed an (1904): White v. Black. 115 Mo App. 28,
insult to the order of a commissioner's court 90 S. \V. 1153 ( 1905) ; E. E. Souther Iron Co.
which requires the tenant to vacate. Watson v. Laclede Power Co., 109 Mo. App. 353, 84
v. Scarbrough (Ala. 1'iOfii, 40 So. 672. S. VV. 450 (1904).
See Ex part e Hedden < Nev. 1907). 90 Pac. 68. Hayes v Metropolitan St. Ry. Co, 84
737. X. Y. Suppl 271 (1903).
61. 1 Chamberlayne, Evidence. 257 69. -laquith v Morrill, 191 Mass. 415, 78
62. In the trial of an action by the court X. E. 93 (1906)
without a jury there is no necessity for the 70. Jaquith v Morrill. 191 Mass. 415, 78
rigid insistence upon the rules of evidence X. K. 93 (1906).
which would otherwise be proper. Shelley v. 71. i Chamherlayne, Evidence, 264,
Wescott. 23 App D. (.. 135 (1904). 265
63. Infra, 184 et seq. 72. Barnes v. Benham, 13 Okl. 582, 75 Pac.
64. Bell v. Adams (Cal. 1907) . 90 Pac. 1130 (1904).
118; Shuler v. Lashhorn, 67 Kan 694, 74 73. Hatton v f!resr<r (Cal. App 1906), 88
Pac. 264 (1903): Crowley v. Crowley, 72 N. Pac. 592; Atlantic & B Ry. Co v. City of
H. 241, 56 Atl. 190 (1903). Cordele, 125 Ga. 373, 54 S. E. 155 (1906);
61 ADMINISTRATION. 117, 118
the evidence in the same way that a jury would deal with it 74 and on appeal
the only question is whether the verdict is one which may be justified in reason
from the facts found. 75 The court should carefully distinguish between find-
ings of fact and rulings of law 70 to preserve the rights of the parties on appeal
and the parties are entitled to separate findings of fact and rulings of law on
all material issues as to which they request such findings. 77
117. Evidence as a Matter of Administration. 78 In no branch of judicial
procedure is the proportion of administration naturally and normally so great
as in the law of evidence. In none are the elements characteristic of adminis-
tration so prominent as here. Administration, for example, is guided by sound
reasoning. Thus reason is the controlling influence in the law of evidence.
// cannot be doubted that in the law of evidence is a large element of posi-
tive or substantive law. Xor is it questionable that a still larger admixture
of procedural rules having the force of law must be regarded as part of it.
But, in a special sense, and to an extent beyond that which is true in case of
other forms of procedure, the law of evidence is a matter of administration.
118. Stare Decisis as Applied to the Law of Evidence. 79 The objection to
any proposed exercise of administrative power, that no case has gone so far in
a particular jurisdiction, may easily be accorded undue importance. The
motto of stare decisis is of and should concern only the substantive law. Xo
question can properly arise as to the propriety of following precedent in pass-
ing upon the substantive rights of the parties, including those relating to estab-
lished rules of procedure as distinguished from those of practice or adminis-
tration. Xothing but confusion could result, uncertainty as to all tenures of
property, were any other course generally followed. But it is otherwise with
regard to administration. A litigant has, in the nature of things, no better
right to insist that a particular course be pursued in arriving at truth by the
use of reason than he would have that his judges shall or shall not wear gowns,
blatters of administration, rules of evidence, are, properly considered, purely
utilitarian, mere methods of doing something else. In this, indeed the parties
may have rights, but not in the method by which it is done. This is more
properly a subject of direct judicial control, of rules of court, or even the mere
establishment of a practice.
Blending Substantive Law with Administration. But recognition of the
Bigham v. Clubb (Tex. Civ. App 1906), 95 411, 90 App. Div. 553 (1904): Pittshurg
S W. 675 Stove & Range Co v. Pennsylvania Stove
74. Allis v. Hall, 76 Conn. 322. 56 Atl. 637 Co. 208 Pa 37. 57 Atl. 77 (1904).
(1904K 77. Contaldi v. Erriohetti. 79 Conn. 273, 64
75. Kenworthy v. Mast, 141 Cal. 268, 74 Atl. 211 (1906^: Wood v. Broderson (Idaho
Pac *41 <1903). 1906) So Pac. 490: State v. Baird, 13 Idaho
76. Mnelman v. Musselman, 140 Cal. 197. 29. 89 Pao. 298 (1907)
73 Pa.- <24 '1903): Kent v. Common Conn- 78. 1 Chamberlayne. Evidence, 266.
cil f City of Binghamton, 86 N. \. Supp 79. 1 Chamberlayne. Evidence. 267.
119 COURT AND JURY; COURT. 62
fact that no legal right exists to any particular exercise of an administrative
power apparently ceases when jurisprudence comes to deal with the admissions
of evidence or rulings as to the probative weight of particular inferences. The
interbleudiug of substantive la\v with the rules of practice or administration is
apt to occur when the significant ruling is made that u evidence is admissible "
or " not admissible " to prove a particular fact ; that it is a *' presumption of
law " that certain inferences are correct; that a jury " would be justified '' in
finding from certain facts a given result. Here this blending has most fre-
quently taken place. It has ended by largely obscuring the very important and
essential principle of judicial administration on which it originally rested, the
free hand of the court in dealing with matters of evidence. For it necessarily
resulted when a proposition of substantive law was thus blended with or made
to assume the garments of a rule of evidence, that, whatever might be the proper
claim of the litigant in the part which was really a rule of administration, he
undoubtedly had legal rights in that portion of the blended whole which was
substantive law. If the two could be separated, the legal rights might be made
to attach to the substantive law alone.
119. Recapitulation. 80 To recapitulate this brief outline of the judge's
functions, it may be said that these powers are of three general classes or de-
scriptions: (1) Judicial functions which specially concern the enforcement
of the rules of law, the ascertainment of the existence of facts and the applica-
tion of the rule of law to the facts so ascertained ; (2 ) administrative powers
which concern the manner in which the rules of law, substantive or procedural
or the usages of practice are to be conditioned in scope and operation by the
higher social objects of litigation; and, (3) executive and police powers con-
ferred for the purpose of enabling the judge to protect the dignity of his office,
the public respect due to it and the purity of justice itself. It is further to be
observed that the essential and fundamental consideration, so far as relates to
the law of evidence, is not as to whether a rule of law which controls the
action of the judge is substantive or procedural ; but as to whether there is a
rule on this subject, or there is none, i.e., as between law, on the one hand, and
administration on the other. The presiding judge announces the rule of sub-
stantive law and applies it to the facts or allows or requires the jury to do so,
according to their respective duties. The judge is bound by and applies the
rules of procedural law in the same way. In exercising powers of admini-
tration the' sole procedural rule and condition is that rruson must be exerci >..
other control and direction being exerted by broad principle- or canons de-
signed for the doing of justice, which it is the special object of administration
to attain. In judging of the reasonableness of the court's administrative
action, the existence of any custom or usage of practice relating; to it or any
similar administrative questions, may properly be considered. It may be
80. 1 Chamberlayne, Evidence, 268.
63 RECAPITULATION. 119
noted that the executive or police powers of the presiding judge are but specific
illustrations of his general functions of administration.
Applying these broad classifications to the subject of the law of evidence,
it becomes clear that while a large admixture of substantive law is present
within its boundaries, and a still greater proportion of procedural rules, either
by statute or judicial legislation, which also have the force of law, that, in
essence and by necessary consequence of the objects which it seeks to attain
and the variety of means by which it endeavors to reach them, the law of evi-
dence is a branch of judicial administration. As such, it is properly con-
trolled, not by precedent, but by these canons or principles to the consideration
of which the inquiry is soon to advance.
Before entering upon this inquiry, it seems appropriate, however, to con-
sider, in the succeeding chapter, certain of the procedural rules and adminis-
trative principles connected with what is, so far as the law of evidence is con-
cerned, probably the most dominating and characteristic factor in an English
trial at common law the institution of the jury.
CHAPTER V.
COURT AND JURY: JURY.
The growth of the jury system, 120.
Function of the jury ; jury confined to the issue, 121.
Comment on facts, 122.
English and Federal courts, 123.
the American minority, 124.
American majority, 125.
assumption of facts, 126.
refusal of assumptive instructions, 127.
uncontroverted facts, 128.
weight and credibility, 129.
when comment is permitted, 130.
customary cautions, 131.
Subordination of judge to jury, 132.
Granting of new trials; verdicts against reason or weight of evidence, 133.
action of appellate courts; palpable confusion, 134.
technical errors as to evidence, 135.
substantive law, 136.
English rule; harmless error, 137.
American majority, 138.
Federal courts, 139.
criminal cases, 140.
a purely voluntary situation, 141.
futile legislation, 142.
technical inerrancy required, 143.
American minority, 144.
prejudice from error, 145.
Taking jury's opinion, 146.
120. The Growth of the Jury System. 1 The modern jury system is a his-
torical outgrowth of certain early crude forms of procedure which were not
really trials at all but tests through which the party went to prove his claim
to facts which had nothing to do with the test itself. There was for example
the irinl bij witnesses, which was a proceeding in which the party produced
witnesses or backers, called secta. Another form was proof by bargain wit-
nesses who were persons selected in advance to prove the nature of a con-
templated transaction.
1. 1 Chamberlayne, Evidence, 269-274.
64
65 HISTORY OF JURY. 121, 122
Another mode of trial was wager of law or com purgation where the proof
was also entirely one-sided and the party produced certain backers who swore
that his oath was a true one. These were both forms of trial by ordeal which
flourished until the thirteenth century and consisted in suitors undergoing
certain forms of torture to prove their case. Tria by battle was introduced
bv the Normans and consisted in a physical contest by the suitors themselves
or by their champions.
The institution of the jury itself came gradually and at first through
leaving to the freemen of the district a disputed question and depending on
their common knowledge of the facts. One form of this procedure was
known as the Frankish Inquisition where the judges summoned those who
were likely to know about a matter in controversy to tell what they knew.
The next step was giving a suitor the absolute right to demand a trial by
inquisition, or " assize " as it was popularly called. One of the difficulties
of the jury system was that for a long time the accused or defendant could
not be forced to submit to trial by jury, and various expedients including
torture were employed to force such submission. The first form of the
assize was known as the grand assize selected from among the knights
with great formality and these were supplemented for certain purposes by the
Petty Assize composed of freemen who knew the facts in controversy.
The final stage in the development of the jury is the introduction of wit-
nesses and allowing the jury to make findings based on their statements. This
introduces the real modern function of the jury which is to ascertain the facts,
and the great difference between the ancient and modern juryman sufficiently
appears in the fact that the modern juryman is disqualified if he has any
relations with the parties which might influence his judgment. 2
121. Function of the Jury; Jury Confined to the Issue. 3 " This function of
ascertainment is one which the jury is well adapted to discharge; and a very
useful contribution to the administration of justice is thus effected by the
introduction of the average common sense, experience and standards of con-
duet prevalent in the community for the purpose of determining what is the
truth regarding disputed matters of fact with which the jurors are familiar.
122. Comment on Facts. 4 A difference of judicial opinion and practice
exists as to whether the court, in discharge of its duty to promote the attain-
ment of substantial justice, is at liberty while recognizing the right of the
jury to judge as to the truth of the facts, including the credibility of witnesses
and the general weight of evidence, to endeavor to assist them by his com-
ments in these and other particulars. In the normal and typical discharge
of the jury's function of ascertaining truth, it would have the benefit of the
2. Hufnagle v. Delaware & H. Co., 227 Pa. 3. 1 Chamberlayne, Evidence, 275.
476, 76 Atl. 205. 40 L. R. A. (N. S.) 982 4. 1 Chamberlayne, Evidence, 276.
(1910) (employee of litigant disqualified).
123-125 COURT AND JUKY: JURY 66
suggestions and comments of the court, which while not affecting their auton-
omy and independence of action, furnished them help from a trained and dis-
interested mind, controlled by the wider social interests of litigation and
enriched by long professional experience in dealing with questions which the
jury are usually approaching for the first time. Such was trial by judge
and jury at common law.
123. [Comment on Facts] ; English and Federal Courts. 5 The common law
relation of judge and jury in this particular continues to be the practice
of the English judges, a fact which assists largely to account for the very
satisfactory efficiency of the system of jurisprudence over which they pre-
side.
Federal Courts. Such also is and for many years has been the practice of
the judges of the Federal courts of the American Union. 6 In these courts the
judge is permitted to comment on the weight of the evidence, 7 provided the
jury be distinctly and cogently informed that it is mere advice and sugges-
tion which they are entitled to disregard.
124. [Comment on Facts] ; The American Minority. 8 The Federal courts
do not stand entirely alone among the tribunals of America in preserving
the common law landmarks as to the respective provinces of court and jury,
but the English and Federal rule is still followed in some form in Connecti-
cut, 9 Minnesota, 10 and in Pennsylvania. 11
125. [Comment on Facts] ; American Majority. 12 The great majority of
the American states have in their constitutions and statutory legislation turned
" trial by judge and jury " as it existed at common law into " trial by jury "
a very anomalous and modern type of judicial procedure. In this conception
of the proper position of a presiding jiidcre, his duty is merely to preserve
order in the courtroom, rule as requested upon sufficient points of evidence
or substantive law to enable the defeated party to take an appeal to a higher
court ; and, having done this, simply turn the case over to the joint control
of counsel acting as masters of ceremony and of the jury sitting as arbitrators
between the litigants. 13
In pursuance of the line of thought above referred to as dominating a major-
ity of American courts, a judge is forbidden to comment upon the facts of
5. 1 Chamberlayne, Evidence, 277. 9. Sackett v. Carroll, 80 Conn. 374, 68
6. Simmons v. United States, 142 U. S. 148, Atl. 442 (1908).
155 (1891): U. S. v. Hall, 44 Fed. 864 10. Ronness v. Felsin<r, 97 Minn. 227, 106
(1890): Lovejoy v. U S. 128 U. S. 171. 173, N. \V. 909 (190f>). .
8 Sup. Ct. R. 77 (1888); United States v. 11. Sperry v. Seidel, 218 Pa. Ifi, 66 Atl.
Philadelphia, etc., Co.. 123 U. S. T13 (1887). 853 (1907).
7. Vicksburff R. Co. v. Putnam, 118 U. S. 12. 1 Chamberlayne, Evidence, 281.
545, 553, 7 Sup. 1 (1886). 13. Illinois. Frame v. Badger, 79 111. 441
8. 1 Chamberlayne, Evidence, 278-280. (1875).
67 COMMENT ON FACTS. 126-128
any given case in instructing or otherwise addressing the jury, 14 or even in
their hearing intimating the opinion he hajs formed from the evidence; and
a caution to disregard this observation, addressed directly to the jury, may
weli be regarded as ineffective for the purpose. 15 The error is rendered the
more prejudicial where a judge incorrectly states to the jury that there is no
evidence to a given effect ; 16 or assumes that there is evidence of a particu-
lar fact where in reality there is none. 17
126. [Comment on Facts] ; Assumption of Facts. 18 The judge will not
give expression to any idea which could only exist properly in his mind
if the truth of a controverted fact were proved or disapproved. 19 In like man-
ner, a judge cannot assume that evidence has been introduced which has
not, in fact, been received; 20 nor that there is no other evidence on a given
point. 21
127. [Comment on Facts] ; Refusal of Assumptive Instructions. 22 It fol-
lows that the judge will not give a charge at the request of counsel which
presents the feature of assuming the existence or nonexistence of certain
facts. 23
128. [Comment on Facts] ; Uncontroverted Facts. 24 The administrative
reason why a judge is not at liberty to instruct the jury on the basis of an
assumption of the existence of a disputed fact, is that so doing implies an
intimation to the jury as to what effect the evidence on that point has had
14. Loveman v. Birmingham Ry.. L. & P. Consol. Ry. Co. v. Gregory, 122 111. App. 607
Co. (Ala. 1907), 43 So. 411; Indianapolis (1905).
Traction & Terminal Co. v. Richer (Tnd. 20. Brazis v. St. Louis Transit Co., 102
App. 1907), 80 X. E. 170; Rubinovitch v. Mo. App 224, 76 S. W. 708 (1903).
Boston Elevated Ry. Co. (Mass 1906). 77 N. 21. Duncan v. St. Louis & S. F. R. Co.
E. 895; Corrigan v. Funk, 96 N. Y. Supp. (Ala. 1907), 44 So. 418. This prohibition
910, 109 App. Div. 846 (1905) ; Keen v. extends to an announcement that there is no
Keen, 90 Pac. 147, 10 L. R. A. (N. S.) 504 evidence on a given point. Patten v. Town
(1907). of Auburn. 41 Wash. 644, 84 Pac. 594 (1906).
15. Davis v. Dregne (Wis. 1903), 97 X. W. 22. 1 Chamberlayne, Evidence, 283, 284.
512. 23. Western Coal & Mining Co. v. Burns,
16. Rose v. Kansas City, 125 Mo. App 231, 84 Ark. 74, 104 S. W. (1907); Kelley v.
102 S. W. 578 (1907) ; McLaughlin v Syra- Town of Torrington. 80 Conn. 378, 68 Atl. 855
cuse Hapid Transit Ry. Co., 115 X. Y. (1908); Lewter v. Tomlinson, 54 Fla. 215,
App. Dh. 774, 101 X. 1. Suppl. 196 (1906) 44 So. 935 (1907): Xorthern Ohio Ry.
Statement of an obvious and uncontroverted Co. v. Rigby, 69 Ohio St. 184, 68 X. E.
inference carries no prejudice. Webb v. At- 1046 (1903). Requests intimating to the
lantic Coast Line R. Co.. 76 S. C. 193. 56 S. jury the inference to be drawn from the
E. 954, 9 L. j?. A (X T . S.) 1218 (1907). facts therein carefully set out in detail are
17. Steltemeier v Barrett, 115 Mo App. properly refused Insurance Co. of Xorth
" ;> 3. 91 S. W. 56 (1905): Texas & Louisiana America v, Leader. 121 Ga. 260. 48 S. E.
Lumber Co. v. Rose (Tex. Civ. App. 1907), 972 (1904): Picard v. Beers (Mass. 1907),
I -13 S. W. 444. 81 X*. E. 246: Weaver v. Southern Ry. Co.,
18. 1 Chamberlayne. Evidence. 282. 76 S. C. 49. 56 S. E. 657 (1907).
19. Atlantic & R. Ry. Co. v. Hattaway, 24. 1 Chamberlayne, Evidence, 284.
126 Ga 333, .V> S ,; 21 (1906); Springfield
129,130 COURT AND JURY: JURY 68
on his mind. This makes such an instruction a comment upon the evidence
within the prohibition of the substantive or procedural law in the majority
of the American states. 25 An instruction, however, may properly assume
the existence of facts where the evidence with respect to them is conclusive
and uncontroverted. 20 The same result follows where a fact is admitted. 27
The court may even legitimately assume that a fact exists where it has been
proved beyond the range of controversy. 28
The elements of damage universally recognized by the courts may be stated
where the fact 'of injury is not disputed.- 9 It is. however, prejudicial
error for the court, in a personal injury action, to state to the jury, in his
charge, his calculation of the amount of damages sustained by plaintiff by
loss of employment. 30
129. [Comment on Facts] ; Weight and Credibility. 31 The judge will not
in these jurisdictions, be permitted to give the jury his impression as to the
probative force of the testimony given by a witness, or any set of witnesses, 32
the probability of their story :5:! or the general weight of the evidence, 3 " 4 includ-
ing the credibility of those who testify. 35 He cannot intimate to the jury
as to what inference he draws from the evidence as to the truth of any issue
in the case. 36 Nor can he express, directly or indirectly, his views as to the
good faith of the parties. 37
130. [Comment on Facts] ; When Comment is Permitted. 38 Practical con-
venience has established certain limitations upon the scope of the administra-
tive or procedural rule which forbids, in a majority of American jurisdic-
tions, a judge to comment on the evidence. He must, at least, hold the
25. North Georgia Milling Co. v. Bender- 77 Conn. 4lil, 59 Atl. 499 (1904); Belt Ry.
son Elevator Co., 130 Ga. 113, 60 S. E. 258 Co. of Chicago v. Confrey, Ill 111. App. 473
(1008). (1903): Hayes v. Moulton (Mass 1907), 80
26. W. A. Greer & Co. v. Raney, 120 Ga. X E. 215; hnboden v. Imboden's Estate (Mo.
290, 47 S. E. 939 (1904) : Holton v. Cochran, App. 1905), *6 S. VV. 263.
208 Mo. 314, 106 S. W. 1035 (1907): Lowns- 34. A orth Carolina. Hancock v. West-
dale v. Gray's Harbor Boom Co., 36 Wash. ern Union Tel. Co, 142 N. C. 163, 55 S. E. 82
198, 78 Pao. 904 (1904). (1906).
27. Shults v. Shults, 229 111. 420, 82 N. E. South Carolina. McGrath v Piedmont
312 (1907). Mut. Ins. Co., 74 S. C. 69, 54 S. E. 218 (1906).
28. Shafer v Russell (Utah 1905), 70 Pac. 35. Lingle v. Scranton Ry. Co., 214 Pa. 500,
559: Halverson v Seattle Electric Co, 35 63 Atl. 890 (1906).
Wash. 600, 77 Pac 1058 (1904). 36. Douglas v Metropolitan St. Ry. Co.,
29. Illinois Cent, R. Co. v. Prickett, 210 119 X. Y. App. Div. 203, 104 X. Y. Suppl.
111.' 140, 71 X. E. 435 (1904): Jennings v. 452 (1907): Ruffin v. Atlantic & N. C. R.
Edgefield Mfg. Co. r 72 S. C. 411, 52 S. E. 113 Co., 142 X C. 120, 55 S. E. 86 (1906) ; Louis-
(1905). ville & X. R. Co. v. Bohan, 116 Tenn. 271, 94
30. Heller v Donellan. 90 N. Y. Suppl. 352, S. W. 84 (1906).
45 Misc. Rep. 355 (1904). 37. Rondinella v. Metropolitan Life Ins.
31. 1 Chamberlayne Evidence, 285. Co., 24 Pa. Super. Ct. 293 (1904); Rich v.
32. Lingle v. Scranton Ry. Co., 214 Pa. 500, Victoria Copper Min. Co., 147 Fed. 380, 77
63 Atl. 890 (1906). C. C. A. 558 (1906).
33. Xorman Printers' Supply Co. v. Ford, 38. 1 Chamberlayne, Evidence, 286.
69 COMMENT ON FACTS. 131
scales and tell the jury how to strike a balance and recognize one when
struck. While the judge is restrained from intimating to the jury an idea
of how, were he a juryman, he would apply the reasoning faculty to the
evidence or the law to the facts, no objection exists to his leading the jury
up to their task of logical or legal reasoning and suggesting its nature to
them. 39
131. [Comment on Facts] ; Customary Cautions. 40 While, as is said else-
where 40a a presiding judge is restrained' in a majority of American state
jurisdictions from commenting on the weight of the evidence in the case
on trial or as to the credibility of the witnesses by which it is given, it would
be an error to conclude that, even in these states, judges are absolutely pre-
vented from commenting upon the evidence.
General cautions as to the relative probative weight to be given oral admis-
sions would seem legitimate, and even, occasionally, necessary. So, where
an instruction as to the relative probative value of admissions as contrasted
with that of self-serving statements by a party as a witness would amount
to a comment on the evidence, it is to be refused. 41
A judge also may properly caution a jury against one whom they shall
find has willfully attempted to deceive them. 42 In instructing a jury it is
not objectionable to inform the jury that testimony concerning verbal state-
ments of others should be received with great caution ; that the repetition
of oral statements is subject to imperfection and mistake; that such kind of
testimony should be scanned closely; and that, where a witness can only
give what he thinks was the substance of what was said, the weight to be
given to such testimony depends largely upon the strength of memory
and intelligence of the witness. This does not invade the province of the
jurv. 43
The court may properly instruct the jury as to the mental attitude in which
properly to approach the consideration of " expert " evidence 44 or the infer-
ence of observers, 45 or of the misleading nature of photographs in estimating
distance 46 or the court may instruct that positive testimony is more to be
believed than negative if the qualification is added that the witnesses are of
equal credibility. 47 The court may also comment on the probative force of
39. Central of Georgia Ey. Co. v. Harper, 44. Infra, 808 et seq.
124 Ga. 836, 53 S. . 391 (1906). 45. Ellis v. Republic Oil Co. (Iowa 1906),
40. 1 Chamberlayne, Evidence, 287. 110 X. W. 20.
40a. Supra, 125. 46. McLean v. Erie R. Co. (X. J. 1904), 57
41. 2 Brown v. Quincy, 0.. etc.. R Co., 127 Atl. 1132.
Mo. App. 614, 106 S. W. 551 (1908). 47. Southern Ry. Co. v. O'Bryan, 119 Ga.
42. Sanders v. Davis (Ala. 1907), 44 So. 147, 45 S. E. 1000 (1903) ; Central of Georgia
979; Alabama Steel & Wire Co. v. Griffin Ry. Co. v. Sowell, 3 Ga. App. 142, 59 S. E.
(Ala. 1907), 42 So. 1034. 323 (1907); Cleveland, C., etc., Ry. Co. v.
43. Pumorlo v. City of Merrill (Wis. 1905). Schneider, 40 Tad. App. 38, 82 X. E. 538
103 N. W. 464. (1907).
132 COURT ANT> JURY: JURY 70
various witnesses 48 as on their experience 49 or probable bias 50 or on the
weight to be attached to the relative numbers of witnesses on each side. 51 He
may also explain to them the relative value of written and oral evidence 52 and
may point out to them the issues 3 without singling out or unduly emphasizing
the contentions of either side. 54 He may also use such illustrations as serve
to explain the evidence 55 and explain the meaning of scientific or legal terms 56
or may properly correct a mistake of counsel or any other person in stating
the evidence. 57
132. Subordination of Judge to Jury. 58 The American tendency to sub-
ordinate the power and prestige of the judge to the supremacy of the jury,
by clothing them with power to apply the law to the facts, without comment
by the court as to the facts ; and to exercise other powers of judicial adminis-
tration, seems of extremely doubtful value to the cause of jurisprudence, not
only on account of the bulk of the tribunal from which unanimous action
is expected but for various other reasons among which are (1) The fact that
the mental operations of a jury are largely guided by emotion while those
of the judge are dominated by reason; (2) That while the jury have special
experience of life in general, the judge has a valuable technical knowledge
of the psychology of the courtroom which would materially assist the correction
of the jury's action ; and, in view of the judge's right to set aside a verdict if,
in his opinion, unreasonable or against the weight of the evidence, helpful
also in procuring a speedy termination of litigation; (3) That the jury, as
a general rule, adopt the personal interests of litigation, as the basis of their
action, while the judge represents the higher and more valuable interests of
society in the efficient, correct and speedy attainment of justice through the
administration of law.
Yet the time is certain to arrive when the jurisprudence of America will
stop long enough to take a full look over its shoulder for the purpose of deter-
mining whether the danger from which it is so persistently running away is
48. Strickler v. Gitchel, 14 Okl. 523, 78 Pac. 357 (1906); Johnson County Sav. Bank v.
94 (1904). Walker, 7!> Conn. 348. Go Atl. 132 (1906).
49. Indianapolis Northern Traction Co. v. 53. McChire v. Lenz (Ind. App. 1907), 80
Dunn (Ind. App. 1905), 76 X. R. 269. X. E. 988.
50. Kirkpatriok v. Allemannia Fire Ins. 54. Jones &. Adams Co. v. George, 227 Til.
Co., 92 X. V. Supp. 466. 102 App. Div. 327 64, SI N*. E. 4 (1907) [rerersinri 125 111. App.
(1905) : Kavanaugh v. City of Wausau (Wis. *503 (1906)]: Oalvert Bank v. J. Katz & Co.,
1904), 98 X. W. 550; Strasser v. Goldberg 61 Atl. 411 (1905) ; Morrell v. Lawrence, 203
(\Vis. 1 904 I, 98 X. W. 554. Mo. 363, 101 S. W. 571 (1907); Galveston,
51. Kozlowski v. City of Chicago, 113 111. etc., Ry. Co. v. Wallis (Tex. Civ. App. 1907),
App. 513 (1904): Hammond, etc.. Klectric 104 S*. W. 418.
Ry Co. v. Antonia (Ind. App. 1908). 83 55. Feddeck v. St. Louis Car Co., 125 Mo.
X. E. 766. See W. H. Stubbing* Co. v. App. 24, 102 S. W. 675 (19071.
World's Columbian Exposition Co., 110 111. 56. Union Traction Co. v. Bick (Tnd. App.
App. 210 (1903) ; Indianapolis St. Ry. Co. v. 1907), 81 X. E. 617 ("car plant").
Schomberg (Ind. App. 1904), 71 X. E. 237. 57. State v. Lane (Or. 1906), 84 Pac. 804.
52. Lee v. Williams, 30 Pa. Super. Ct. 349, 58. 1 Chamberlayne, E\'idence, 300-306:
71 STEW TRIALS. 133, 134
a real one or a memory to which no present reality corresponds; to decide
calmly whether a judge elected under universal suffrage by a popular vote at
short intervals presents the same danger to popular liberty that was threat-
ened by Mr. Justice Buller or the Court of High Commission; and whether
society has not a vital interest under, above and beyond the interest of the
litigants themselves that law should be speedily and justly administered.
133. Granting of New Trials; Verdicts Against Reason or Weight of Evi-
dence. 59 Normally and properly, the presiding judge should set aside a verdict
rendered in a trial before him where he finds that the jury have failed to exer-
cise the reasoning faculty, where their verdict cannot be defended as the act of
rational men. 60 Trial courts have been sustained in going further and set-
ting aside verdicts as against the weight of the evidence, because the testimony
and other proofs, while they might justify, in point of reason, the verdict
of the jury, would, in the opinion of the presiding judge, with greater reason,
have warranted the opposite conclusion. 61
A judge may, indeed, be justified in allowing a verdict to stand though he
himself would not have reached it on the evidence. 62
In an appellate court the question of the propriety of the trial judge's action
commonly assumes not the form of asking whether the verdict of the jury
can be sustained, in point of reason, which was the question presented to the
trial judge; but takes the form of asking; Can the action of the trial judge
be sustained in point of reason ? 63 This seems entirely correct, as a mat-
ter of principle. The question is, in reality, one of law. 64 The appellate
court, not having heard the evidence or seen the witnesses, will not reverse
the action of the trial judge if there is evidence on which it can reasonably be
sustained. 65
134. [Granting of New Trials] ; Palpable Confusion. 66 The effort to recon-
cile these antagonistic conceptions, that of a jury whose finding is conclusive
as to matters of fact, and to whose wisdom a very marked deference is cou-
59. 1 Chamberlayne. Evidence. 307-310. Ulman v. Clark, 100 Fed. 1S3 (1900). "The
60. Birdseye's Appeal, 77 Conn. 623 (1905). maxim at present adopted [is] this, that (in
The court may always disregard evidence all oases of moment) where justice is not
which is contrary to recognized scientific done upon one trial, the injured party is
principles. So the appellate court may re- entitled to another." 1 Black. Comm. 387.
verse a verdict for the plaintiff where the 62. Reeve v. Dennett. 137 Mass. 315
only evidence of negligence was that the (1884): Dickerson v. Payne, 06 X.' J L. 35
defendant turned the water into its pipes and (1001) : McCord v. R R. Co., 134 N. C. 53
the plaintiff's faucet was found open as (1903).
it is clear that the water could not have 63. Bishop v. Perkins. 19 Conn. 300 ( 1848) ;
turned the faucet which was of the screw Capital and Counties Bank v. Henty, 7 App.
variety. Louisville Water Co. v. Lally. 168 Cas. 770 (1882).
Ky. 348, 182 S. W. 186, L. R. A. 1916. D 300 64. Infra. 188.
(1916). 65. Ruffner v Hill. 31 u Va. 428 (1888).
61. Ureen v. Soule, 145 Cal. 96 (1904); 66. 1 Chamberlayne. Evidence, 311,312.
Coal, etc. Co. v Stoop. 56 Kan. 426 H896) ;
135-137 COUET AND JUEY: JURY 72
tinuallj paid, 67 with an autocratic power of the judge to set the results of
this wisdom aside, practically at his option, as the only condition which will
make trial by jury even " tolerable," naturally leads to some conflict in
statement on the part of the courts. 68 Certain tribunals state the scientific
rule, of permitting a rational verdict to stand, with great precision. 69 On the
other hand, the position of an arbiter as to where the preponderance of the
evidence rests has been authoritatively assigned to the trial judge ; 7U in other
words, where two courses, both rational, are open to the jury, it is the right
of the court to compel them by vetoing the other, to adopt the one which
he, rather than they, may happen to prefer.
135. [Granting of New Trials]; Technical Errors as to Evidence. 71 The
same duty of enforcing the rules of' correct reasoning which presses upon the
trial judge in his administrative relation to the jury rests upon all revising
or appellate tribunals in passing upon the action of trial judges or inferior
courts. Sound reasoning is the legal standard of proper conduct, whether in
a court of any relative position or outside, in the world of affairs. The need
for it is, in reality, a requirement of law. That a verdict will not be dis-
turbed where sound reason has been exercised, truth ascertained, and sub-
stantial justice done, is the rule of administration adopted in England. In
the United States the more technical rule is frequently observed that error
in law, departure from precedent, being shown, a verdict will be set aside and
a new trial granted; regardless of whether substantial justice has or has
not been done. If the game has not been correctly played, the fact that it
turned out as it should is not material. It must be played over.
136. [Granting of New Trials] ; Substantive Law. 72 Wherever, under the
confusion and blending of the rules of substantive law with those of pro-
cedure or practice to which reference is elsewhere made a ruling of a trial
court, though apparently one as to a question of evidence, really involves a
decision as to substantive law, a more technical rule may properly be applied
to the action of the trial judge. Wherever the admissibility of a fact is con-
ditioned, not upon its logical effect to prove a given fact, but upon whether
the ultimate facium prnlxindum which it is offered as tending to prove is, as
matter of law, constituent of the right or liability asserted in the action,
obviously the court is dealing with a question of substantive law, however dis-
guised by the phraseology in which it is stated.
137. [Granting of New Trials]; English Rule; Harmless Error. 73 Where
it appears that substantial justice has been done, or, as the phrase goes, the
67. Capital Traction Co. v. Hof, 174 U S. 69. Pleasants v. Fant, 22 Wall. 116, 122
13 (1809). (1874).
68. R. K. Co. v. Ryan. 49 K an , 1 (1892) ; 70. Clark v. Ry. Co., 37 Wash. 537 (1905).
Williams v. Townsend, 15 Kan. 563 (1875); 71. 1 Chamberlayne, Evidence, 312.
v. Adams, 26 S. C. 105 (1886). 72. 1 Chamberlayne. Evidence. 313.
73. 1 Chamberlayne, Evidence, 314-319.
73 NEW TRIALS. 138-140
[trial] judge " is satisfied with the verdict," no reversal will be had, on
account either of the erroneous admission or rejection of evidence; espe-
cially where it appears that adding or subtracting the evidence in question
would not alter, or should not alter, the result.
Thus, a new trial wil not be granted in England on account of the admis-
sion of objectionable testimony where unexceptional evidence to the same
effect, sufficient to sustain it, 74 has been given.
In a similar way, where an English appellate court feels that a correct
result has been reached, reason has been exercised and justice done, no new
trial will be granted on account of a rejection of evidence, however competent
in itself, which, under the exercise of sound reasoning, would not have altered
the result. 75
138. [Granting of New Trials] ; American Majority. 76 J n a majority of
the American jurisdictions the more technical rule to the effect that every
improper ruling regarding the admissibility of evidence should be ground
for a new trial, was at once adopted and steadily maintained. 77
139. [Granting of New Trials]; Federal Courts. 78 The early rule
announced by the Supreme Court of the United States in dealing with the
granting of new trials for technical error of the trial court in the admission
or rejection of evidence was entirely unexceptional ; endorsing, as it did,
the scmnd rule, that the use of reason by lower courts is the standard of require-
ment to be imposed by an appellate tribunal. 79 In later years, however, few,
if any, courts have applied the erroneous rule of administration adoj ted in
this matter by state tribunals with greater relentlessness and indifference to
social consequences than the Supreme Court of the United States. 80
140. [Granting of New Trials] ; Criminal Cases. 81 If the action of Ameri-
74. R. v. Ball, R. & R. 133 (1907). Lingenfelter, 42 Neb. 728, 60 N. W. 1022
75. "If the evidence had been admitted, it (1894) (material contradiction); Cutler v.
could have made no difference, at least it Skeels, 69 Vt. 154, 37 Atl. 228 (1897) (im-
ought not to have made any in the verdict." proper remark of counsel on his argument).
R. v Teal, 11 East 311 (1809) per Lord 78. 1 Chamberlayne, Evidence, 321.
Ellenborough, C. J. The same rule has been 79. M'Lanahan v. Ins. Co., 1 Pet. 170, 183
adopted in equity. Pemberton v. Pemberton, (1828).
11 Ves. 50, 52 ( 1805) ;Barker v. Ray, 2 Russ. 80. Carver v. U. S., 160 U. S. 553, 16 Suppl.
76 (1826) ; Bullen v. Michel, 4 Dow 297, 319, 388 (1896) (reversed 164 U. S. 694, 17 Suppl.
330 (1816). " The true consideration always 228.
is whether upon the whole there appears to " It is elementary that the admission of
be such a case as enables the judge, in illegal evidence over objection necessitates
equity satisfactorily to administer the equi- a reversal." Waldron v. Waldron, 156 U. S.
ties between the parties without the assist- 380, 15 Suppl. 383 (1894).
ance of another trial." Lorton v. Kingston, The United States Supreme Court shows a
5 Cl. & F. 269, 340 (1838) per L. C. Gotten- later tendency to adopt the sounder view.
ham Motes v. U. S., 178 U. S. 458, 20 Suppl. 993
76. 1 Chamberlayne, Evidence, 320. (1899).
77. Louisville & N. R. Co. v. Miller, 109 81. 1 Chamberlayne, Evidence, 322.
Ala. 500, 19 So. 989 (1896); Carpenter v.
141-143 COURT AND JUKY: JUKY 74
can courts of last resort in dealing with rulings on evidence deemed improper
is devoid of scientific justification, still more impressive is their practice
in criminal matters. The rule is carried so far that even where the error
is clearly immaterial, having had, as the court admit, u no reference what-
ever to the guilt or innocence of the defendant ; " 82 or where the verdict was
warranted by the other evidence, 83 a reversal is granted.
A typical statement of this view is that of Judge Miller of Louisiana : 84
" The admission of illegal evidence in a civil case is comparatively unim-
porlant. . . . But in a criminal case ... it is for the jury to convict, and
it is presumed to act on all the evidence submitted. ... It is the right of the
accused to be tried on legal evidence alone. . . . The conviction must be by
legal evidence only."
141. [Granting of New Trials; Action of Appellate Courts; Technical Errors
as to Evidence ; American Majortiy] ; A Purely Voluntary Situation. 85 Judges
speak of a " presumption " of prejudice from an erroneous admission or rejec-
tion of evidence. The term " presumption " connotes the idea of logic enforced
by procedural law ; that, by a rule of law an inference of fact is given a
prima fxcie effect in the absence of evidence to the contrary. In point of fact,
neither law nor logic, legal or logical reasoning, are in the least involved in
this so-called presumption of prejudice from error. There is no " presump-
tion,'' properly speaking ; at most there is but a pure " assumption " of admin-
istration. With the observation of this fact, the entire theory of the " rule "
falls. As a matter of administration, which is based on and tested by reason
alone, the assumption is entirely indefensible. A court of justice cannot
within the bounds of reason, so administer legal rules as to recognize and pro-
tect the right to commit injustice. Viewed from the standpoint of adminis-
tration, the desired end is already attained, the verdict is a just one.
142. [Granting of New Trials] ; Futile Legislation. 86 Even the legislature
has found itself impotent to control the insistence of the appelate judges upon
reversals for technical error in matters of evidence. So deep-rooted is the
feeling that a new trial should follow any slip, however slight, in this connec-
tion, that statutes providing a sounder rule have been customarily disregarded
by the courts. 87
143. [Granting of New Trials] ; Technical Inerrancy Required. 88 The
impressive feeling of the American appellate courts that they must reverse
82. People v Bell. 53 Cal. 110 (1878) 85. 1 Chamherlayne, Evidence, 323.
(contradicting proof that a murderer's vie- 86. 1 Chamherlayne. Evidence. 324. 325
tim was habitually profane). 87. People v. Strait, 154 X. Y. 165, 47
83. State v. Jefferson, 125 X. C. 712, 34 X. E 1090 (1897) : Kohl v State, 59 X. J. L.
S. E. 648 (1899). 445. 37 Atl. 73 (1897). See however, Ruther-
84. State v. Callahan, 47 La. Ann. 497, 15 ford v. Com, 78 Ky. 639, 643 (1880).
So. 50 (1895). 88. 1 Chamberlayne, Evidence, 326.
75 NEW TKTAT.S. 144, 145
if error, however far from the substantial merits, has occurred, has been else-
where noticed. It all apparently proceeds on the theory that certain rules
of law must be followed, regardless of consequences. It involves a require-
ment of absolute inerrancy on the part of a trial judge. He must, at the peril
of justice, comply absolutely with every technical requirement of the law of
evidence working out, in the hurry and other embarrassments of a nisi prius
trial, a result to which the greater calm and leisure of an appellate court will
not enable them to find any possible exception. When the number of admin-
istrative problems, accentuated by the desire, of counsel to " get error into the
record," is considered, the unfairness of this to a trial judge is obvious. A
practically impossible standard is erected. Penalty, reversal. Kesult, delay
and expense to litigants; disrespect for law. 89
r lhe result is a general breakdown in the effectiveness of criminal procedure
to deal with crime, general lawlessness and popular contempt for the work
of the courts. Happily England, where democracy is not without an enor-
mous influence in government, has wisely escaped much of this. In America,
justice steadily awarding injustice rather than sacrifice a jot or title of the
legal formality by which it is hampering itself is by no means an impressive
spectacle.
144. [Granting of New Trials] ; American Minority. 90 In a minority of the
American jurisdictions the rule, originally adopted and finally established in
England, that the improper admission or rejection of evidence would not be
permitted to set aside a verdict which did substantial justice, has been employed.
Many valiant protests against the majority rule have been registered by dis-
senting judges, whose opinions normally carry weight. 91
145. [Granting of New Trials] ; Prejudice from Error. 92 In these juris-
dictions, the so-called " presumption " of prejudice from error does not obtain.
When the verdict is a just one, these courts naturally fail to see either (1)
why there should be any need of presumption in the matter; or, (2) why,
if presumption is to be indulged at all it should be assumed or presumed
that a party is prejudiced by a just verdict.
If the record shows all the facts, the reasonableness of the decision is a
matter of law. It is this question of law which is the appropriate duty of the
appellate court to resolve. The verdict reached being the correct one, reason
clearly has been used and the verdict should stand. 93 Where the facts thus
89. See Davis v. State, 51 Xebr. 301, 70 Lipscomb v. State, 75 Miss. 559, 23 So. 210,
N. W. 984 (1897). 228 (1898).
90. 1 Chamberlayne. Evidence, 327. 92. 1 Chamberlayne, Evidence, 328-330.
91. People v. Stanley, 47 Cal. 113, 119 93. " The judgment was manifestly for the
(1874), per Wallace, J. : People v. Koerner, right party; and where such is the case, the
154 N. Y. 355, 48 N. E. 730 (1897), per judgment will not be reversed because some
Haight, J. ; State v. Musgrave. 43 W. Va. incompetent testimony was admitted." Gard-
672, 28 S. E. 813 (1897), per Brannon, J.; ner v. E. Co., 135 Mo. 90, 36 S. W. 214
146 COUKT AND JUEY: JUKY 76
appear, it would seem that the necessity for assumption or presumption
as to what should be taken to be the case in the absence of evidence, does not
arise.
146. Taking Jury's Opinion. 94 The judge, in discharging his own duty,
may take the opinion of the jury; giving it such weight as he deems proper,
lie may, in like manner, ask their view as to the meaning of a document. 95
Where a trial by jury is not a constitutional or statutory right, but the court
seeks the aid of the jury in determining questions of fact, it may adopt, modify
or disregard their findings. 90 This convenient practice has the sanction
of statute in certain jurisdictions. 97 The judge may, however, prefer the
shorter procedure of leaving the entire question to the jury under appropriate
instructions as to what rule of law they should apply in the event of their
contingent findings of fact. 98
(1896). These courts follow the same rule L. R. B. D. 619, 627, 34 W. R. 208, 210
in equity' (Dowie v. Droscoll, 203 111. 480, (1885).
(jri N. E. 56 (1903) or in criminal cases. 96. Kelly v. Home Sav. Bank, 92 N. Y.
Where the ruling "could not properly have Suppl. 578, 103 App. Div. 141 (1905).
changed the result, then he [defendant] was 97. Willeford v. Bell (Cal. 1897), 49 Pac.
not aggrieved by the ruling." State v. Beau- 66, 7; Maier v. Lillebridge (Mich. 1897), 70
det, 53 Conn. 536, 539, 4 Atl. 237 (1885). N. W. 1032.
94. 1 Chamberlayne, Evidence, 331. 98. Hawea v. Forater, 1 M. & R. 368 (1834).
95. Stewart v. Merchant, etc., Ins. Co., 16
CHAPTER VI.
PRINCIPLES OF ADMINISTRATION; A. PROTECT SUBSTANTIVE RIGHTS.
Principles of administration, 147
protection of substantive rights, 148.
riyht to prove one's case, 149.
right to use secondary evidence, 150.
documents, 151.
probative documents, 152.
means of communication, 153.
interpreters, 154.
deaf mutes, etc., 155.
scope of right, 156.
limited to proof of res gestae, 157.
order of stages, 158.
right to open and close, 159.
plaintiff as actor, 160.
defendant as actor, 161.
code and common law pleadings; admissions, 162.
proceedings in rem, 163.
variations in order of evidence, 164.
evidence in chief, 165.
actor, 166.
non-actor, 167.
order of topics, 168.
conditional relevancy; bearing apparent, 169.
bearing not apparent, 170.
right to test adversary's case, 171.
cross-examination, 172.
rebuttal, 173.
actor, 174.
wse o/ experts, 175.
anticipatory rebuttal, 176.
non-actor, 177.
subsequent rebuttal, 178.
use o/ reason, 179.
should prevent jury from being misled, 180.
guessing not permitted, 181.
striking out prejudicial evidence, 182.
withdrawal of jury, 183.
77
PROTECT SUBSTANTIVE RIGHTS. 78
preventing irrational verdicts, 184.
directing verdicts, 185.
relation to grant of new trial, 186.
relation to motion in arrest of judgment, 187.
a matter of law, 188.
general rules, 189.
scintilla of evidence not sufficient, 190.
motion equivalent to a demurrer to evidence, 191.
direction against the actor, 192.
direction in favor of actor, 193.
time for making motion, 194.
direction on opening, 195.
party moving may be required to rest, 196.
nominal or actual verdicts, 197.
effect of waiver, 198.
action of appellate courts, 199.
effect of rulings on evidence, 200.
judge sitting as jury, 201.
right to judgment of court or jury, 202.
performance of functions by judge, 203.
waiver, 204.
general right to jury trial; witnesses not permitted to reason,
205.
a strongly entrenched right, 206.
Federal Constitution, 207.
State Constitution, 208.
scope of common law, 209.
judicial powers reserved, 210.
statutory construction; criminal cases, 211.
waiver forbidden, 212.
incidental hearings, 213.
special proceedings, 214.
statutory proceedings, 215.
in what courts right can be claimed, 216.
who may claim right, 217.
reasonable limitations permitted; demand, 218.
minor criminal offenses, 219.
payment of jury fees, 220.
restricted appeals, 221.
unreasonable limitations unconstitutional, 222.
waiver and estoppel, 223.
right to confrontation, 224.
waiver, 225.
79 PRINCIPLES OF ADMINISTRATION. 147-149
147. Principles of Adminintration. 1 The exercise by judges of the broad
and somewhat ill-defined powers of administration connected with the judicial
office is necessarily governed rather by principles than by rules. These prin-
ciples in turn are naturally somewhat indeterminate, eluding complete and
definite statement. They grow out of and are guided by the accurate judicial
instinct, the appreciation of highly intellectual skilled observers as to what
should be the ultimate results of litigation.
Conveniently epitomized, these broad canons of judicial administration may
be said to be four:
A. Protection of Substantive Rights.
B. Furtherance of Justice.
C. Expediting Trials.
D. Perfecting Substantive Law.
The operation of these canons of administration may conveniently be con-
sidered in this order.
148. [Principles of Administration] ; Protection of Substantive Rights. 2
The primary principle of judicial administration regarding the admission of
evidence is to preserve during the course of the trial the fundamental rights of
the parties.. This principle is justly deemed paramount to all others.
It will be expedient, however, to consider the right as separable. A party
may claim to be entitled to insist (1) that he be given a reasonable opportu-
nity to prove his case or establish his defense; (2) that he be accorded fair,
reasonable opportunity to test the affirmative case relied on by his opponent ;
(3) that both branches of the tribunal shall employ, in the discharge of their
respective functions, processes of correct reasoning; (4) that he be granted a
trial by judge or jury, or both, according to the established course of legal pro-
ceedings ; each branch of a mixed tribunal discharging the duty of judging
imposed upon it by law; (5) that he be allowed to confront the witnesses
against him.
149. Right to Prove One's Case. 3 The substantive law secures to every
litigant a fair opportunity to prove, in the best method at his command, and
at a designated time, the substance of his contention. In other words, the
party seeking the assistance of the court should be enabled to lay his case before
the appropriate tribunal ; while it is equally the right of his adversary to
unfold the substantial part of his defense at an appropriate time before the
same tribunal. To this end, as to the object of the entire proceedings, all rules
of administration regarding the admission of evidence are subservient.
The right of a party to a reasonable opportunity of proving his case implies
the right to have it tried in such a manner as to enable him to present his con-
tention with reasonable fullness. The right may be 'considered, (a) as it
1. 1 Chamberlayne, Evidence, 332. 3. 1 Chamberlayne, Evidence, 334-338.
2. 1 Chamberlayne, Evidence, 333.
150, 151 PROTECT SUBSTANTIVE KIGIITS. 80
applies to the matter as to which proof may be offered; (b) the means by
which these matters are established; (c) as to the scope of the right; (d) the
order of the stages at which it should be enforced; (e) the order of topics at
each stage.
The right of a party to prove his case may fairly require that his counsel be
permitted to testify. If so, this will be allowed. 4 The court may impose
conditions, 'e.g., that the counsel withdraw from the case.
150. [Right to Prove One's Case] ; Right to Use Secondary Evidence."' Good
faith to the tribunal, and fair play to his adversary require that original ob-
servers, original documents, facts rather than reasoning should be presented
to the court. But if a necessity for using secondary evidence is shown, the
principle of administration now under consideration permits the use of evi-
dence of that grade ; although possessing less probative force.
This, by far the most important in practical effect, of all aspects of the
principle permitting proof of a party's case, is the pel-missive, indulgent por-
tion of the " best evidence rule " which qualities and conditions the mandatory
section of that rule also enforced as an administrative principle. The
principle of administration under consideration is thus seen to be intimately
involved with the familiar " Best Evidence Rule." As commonly stated, the
"rule" contains these two distinct, though connected propositions: (1) The
best evidence which the nature of the case permits must always be presented ;
(2) when the best evidence of which the case is susceptible is presented it will be
admitted. The second half is the principle of administration under considera-
tion.
151. [Right to Prove One's Case] ; Documents. 6 Loss, destruction, inabil-
ity to find, or other sufficient reason for failing to produce an original docu-
ment having first been satisfactorily established, the party's right to prove his
cause authorizes or requires, as the case may be, that he be permitted to prove
its contents by parol evidence. \ r erbal precision is not required, 7 as a demand
to that effect would be subversive of the indulgence itself. 8 In case a docu-
4. Greenfield v. Kaplan, 52 Misc (N. Y.) Due and proper execution must be affirma-
132, 101 N. Y. Suppl. 567 (1906). tively proved. A reasonable latitude, neither
5. 1 Chamberlayne, Evidence, ,'139, 340. assenting to vagueness on the one hand, nor
6. 1 Chamberlayne, Evidence, 341-346. imposing strictness with which it is impossi-
7. In proving the contents of a lost instru- ble to comply on the other, is observable in
ment, it is sufficient to show who executed this connection; as in cases involving the
it and to whom it was executed, the time of requirements for proof of contents of lost
execution, the consideration and the property or otherwise unavailable instruments. Short-
conveyed, or the subject-matter of the con- er v. Sheppard. 33 Ala. 648 (1859); Hawley
tract. Harrell v. Enterprise Sav. Bank, 183 v. Hawley, 1ST 111. 351, 58 N. E. 332 (1900) ;
111.538,56 N. E. 63 (1900). Barley v. Byrd, 95 Va. 316, 28 S. E. 329
If the consideration of a deed be stated (189,7).
in it the parol evidence -of contents must 8. Perry v. Burton, 111 111. 138 (1884)
include proof of that fact, as it is a material (deed),
part of the deed. Capell v. Fagan (Mont.
1904), 77 Pac. 55.
81
RIGHT TO PEOVE CASE.
151
ment is constituent, i.e., is one of those which in themselves constitute or create
legal results, wills, etc., proof of contents by parol testimony must be, upon
natural grounds of public policy, particularly comprehensive and exact.
Bills of jSale, The contents of a bill of sale must be proved to a' reasonable
certainty by clear and satisfactory evidence as to all material parts.' J
Contracts, A contract originally reduced to writing may be a constituent
document. Its contents should be proved with fullness and precision. 1 '*
Deeds. In case of a deed, in the language of an early Indiana decision, 11
" The property conveyed, 12 the estate created, 13 the conditions annexed, 14 the
signing, 15 sealing 10 and delivery, are required to be proved with reasonable
certainty by witnesses who can testify clearly to its tenor and contents." 17
Negotiable Instruments. Negotiable instruments 18 and other commercial
specialties must be proved with great particularity, as, in respect practically
to all parts of the paper, a close approach to verbal precision is permitted by
the nature of the document. 19
Public records do not require for proof of contents by parol any other or
different rule than is applied to private instruments. The substance of the
contents of public documents, 20 in all material particulars, 21 must be proved
when the original is lost, destroyed or is for some other reason, practically
unavailable. Verbatim testimony is not necessary. 22
9. Hooper v. Chism, 13 Ark. 496, 501
(1853); Brown v. Hicks, 1 Ark. 233, 243
(1838). .
10. Shouler v Bonander, 80 Mich. 531, 535,
45 N. W. 487 (1890) (agreement); Ross v.
Williamson, 14 Ont. 184 (1387) (agreement).
A party who negligently loses a contract
cannot be allowed to put in a copy according
to a recent case. Missouri Oklahoma, etc.,
Co. v. West, Qkl. 151 Pac. 212. Tt would
seem however that the exclusion should be
confined to cases where the loss was collusive
or intentional, and that there is no sound
reason now for the early rule.
11. Thompson v. Thompson, 9 Ind. 323, 333
U857).
12. The courses of the description are not
essential. Jackson v. M'Vey, 18 John. (X.
Y.) 330, 333 (1820).
13. A lease, or surrender stand in the same
position in relation to proof of contents.
Doe v. Jack, 1 All. N. Br. 476 (1840).
14. " It should be made satisfactorily to
appear what were the substantial conditions
and covenants." Rector v. Rector, 8 111. 105,
122 (1S46).
15. Elyton Land Co. v. Denny, 108 Ala.
553, 561, 18 So. 561 (1895) : Neely v. Carter,
96 Ga. 197, 23 S. E 313 (1895).
16.' Seals. For some consideration ab to
how far a record copy should show the exist-
ence of a seal upon an original instrument
requiring a seal for its validity, see Strain
v. Fitzgerald, 128 N. C. 396, 38 S. E. 929
(1901).
17. Kenniff v. Caulfield, 140 Cal. 34, 73
Pac. 803 (1903).
18. Bond v. Whitfield, 32 Ga. 215, 217
(1861) i bill of exchange) ; Statemv. Peterson,
29 N. C. 556, 40 S. E. 9 ( 1901 ) .
19. But see Bell v. Young, 3 Grant (Pa.)
\T5 (1854) (amount of a note; about $80;
ibove $70 received).
20. Sturtevant v. Robinson, 18 Pick.
(Mass.) 175, 179 (1836) (writ); Cunning-
ham v. R. Co., 61 Mo. 33, 36 (1875).
\Yhere the original order of publication
in a tax proceeding has been Idfet the files
of the newspaper in which it was published
are admissible to prove it. Miller v. Kea-
ton. 260 Mo. 708, 168 8. W. 1140, L. R. A.
1915 C 690 (1914).
21. In case of familiar and formal docu-
ments, a mere abstract may suffice. Brown-
ing v. Flanagin, 22 N. J. L. 567, 571 (1849)
(writ).
22. Com. v. Roark, 8 Cush. (Mass.) 210,
213 (1851).
152,153 PROTECT SUBSTANTIVE EIGHTS.
Wills. The maximum of strictness in requirement as to proof of contents
is made in the case of wills. That the contents of a lost will may, in a proper
case, be established by parol is beyond question. 23 The rule that the substance
of all material portions of the instrument must be proved is equally applicable
in the case of wills as in that of other constituent instruments. A peculiarity
of this class of documents is that the complexity of provision is frequently so
great and the interdependence of the several parts is so intimate that prac-
tically all parts of a will are *' material," within the meaning of the rule.
152. [Right to Prove One's Case] ; Probative Documents. 24 The contents of
other than constituent documents may be shown by any appropriate evidence, 20
including that of a witness who can testify directly from memory or from a
recollection suitably refreshed by the use of appropriate memoranda, includ-
ing the use, as part of the testimony of the witness of a memorandum which
revives no present recollection but which the maker swears to have been accu-
rate when made.
With letters, 20 books of account 27 and other non-constituent documents, 28
verbal precision is less requisite than in case of constituent documents ; 29
though, of course, highly desirable, where it may be had. The substance 30 of
any portions relevant to the inquiry will, 31 as a rule, be deemed sufficient.
Letters as Contracts. Where letters are relied on to establish a contract,
the same particularity of proof in regard to essential parts is required as in
case of more formal instruments designed for that purpose. 32 The effect of a
letter is to be distinguished from its substance. That a witness should be per-
mitted to state the effect of the document would be, in certain cases, to substi-
tute his conclusion for that of the jury in point of law, 33 or fact.
153. [Right to Prove One's Case] ; Means of Communication. 34 The regular
and satisfactory means of communication between the witness and the tribunal
23. Sugden v. St. Leonards, L. R., 1 P. D. 29. Tobin v. Shaw, 45 Me. 331, 349 (1858)
154 (1876). (letter; "So far as she recollected," suffi-
24. 1 Chamberlayne, Evidence, 347, 348. cient).
25. Hardy's Trial, 24 How. St. Tr. 681 Some real recollection, however, is requi-
(1794). site. A witness who " thought he might per-
26. Case v. Lyman, 66 111. 220, 233 (1872) ; haps state" the contents of a letter was held
Strange v. Crowley, 91 Mo. 287, 294, 2 S. W. to have been properly rejected. Graham v.
421 (1886) ; Poague v. Spriggs. 21 Gratt. 220. Ohrystal, 2 Abb. App. C. 263 (1865).
231 (1871). 30. Camden v. Belgrade, 78 Me. 204, 3 Atl.
27. Mayson v. Beazley, 27 Miss. 106 (1854) 652 (1886).
(abstract sufficient). 31. People v. McKinney, 49 Mich. 334, 336,
28. Camden v Belgrade, 78 Me. 204, 3 Atl. 13 N. W. 619 (1882) ; Sizer v. Burt, 4 Den.
652 (1886) (marriage certificate): Wilker- 426, 429 (1847) (memorandum of claim),
son v. Allen, 67 Mo. 502, 510 (1878) (ad- 32. Elwell v. Walker, 52 Iowa 256, 261,
vertisement) . 3 N. W. 64 (1879) (antenuptial agreement).
Where way-bills have been lost it is error 33. Baltimore v War, 77 Md. 593, 603. 27
to exclude letter press copies of them. Barker Atl. 85 (1893) (that a letter was an " or-
v. Kansas City Mexico & Orient R. Co., 88 der").
Kan. 767. 129 Pac. 1151, 43 L. R. A. (N. S.) 34. 1 Chamberlayne, Evidence, 349, 350.
1121 (1913).
b3 EIGHT TO PBOVE CASE. 154, 155
is that the witness should address the judge or jury in the oral language to
which they are accustomed and which they understand. But should a witness
not understand the vernacular, should he be a deaf inute, were it to prove that
an important document, constituent or probative, is in a foreign tongue, the
present right permits a party to insist upon offering interpreters, translations
or any other reasonable substituted means of communication of thought be-
tween the witness or declarant and the court.
154. [Right to Prove One's Case] ; Interpreters. 35 The power to appoint
interpreters is frequently conferred in express terms by statute, 36 though such
an act is merely declaratory of the existence of a common law administrative
power of the judge. 37 Unless this administrative power is unreasonably exer-
cised, the result will not be revised by an appellate court. 38 The interpreter is
subject to cross-examination as to his qualifications, 39 and, unless found to be
disqualified, in the court's opinion, by reason of relationship to the parties 40
or other bias, 41 the office may be discharged by any competent witness. 42
The interpreter must, however, understand 43 or have a fair knowledge 44
of both languages as spoken; but it is not necessary that he should be able to
read English as written. 45
155. [Right to Prove One's Case] ; Deaf Mutes, etc. 46 The witness may
understand English and still be unable, by reason of some organic imperfec-
tion, to express himself in words. He may, for example, be a deaf mute ; and,
as such, confined to the use of signs. The necessity for it being shown, the
signs he makes must be translated into language by an interpreter 47 skilled in
the code of signs employed by the witness. 48
35. 1 Chamberlayne, Evidence, 351-354. 41. State v. Thompson, 14 Wash. 285, 44
36. California Code C. P. 1884 ("any Pac. 533 (1896).
person a resident of the proper county " may 42. South Carolina. State v. Weldon, 39
be selected): People v. Morine, 138 Cal. S. C. 318, 17 S. E. 688 (1893); People v.
626, 72 Pac. 166 (1903); Schall v. Eisner, 58 Thiede. 11 Utah 241, 39 Pac. 837 (1895)
(Ja. 190 (1S77); Rev. Stat. (Ind.) 1897, (juror); State v. Thompson, 14 Wash. 285,
508; Skaggs v. State, 108 Ind. 57, 8 X. E. 44 Pac. 533 (1896) (witness).
695 (188G) (the number of interpreters is 43. People v. Constantino, 153 N. Y. 24,
discretionary with the court); Com v. San- 47 X. E. 37 <1897).
eon, 67 Pa. St. 822 (1871). 44. Skaggs v. State, 108 Ind. 53. 8 X. E.
37. Schall v. Eisner, 58 Ga. 190 (1877); 695 (1886). The witness need not be one
Livar v. State, 26 Tex. App. 115 (1888). The exceptionally well skilled to act as an in-
consent of the opposite party is not necessary. terpreter. Skaggs v. State, 108 Ind. 53, 8
Mennella v. Metropolitan St. Ry. Co., 86 X. Y. .\. E. 695 (1886).
Suppl. 930. 43 Misc 5 (1904). 45. Central, etc., Ry. Co. v. Joseph, 125
38. Kozlowski v. City of Chicago, 113 111. Ala. 313. 28 So. 35 (1899).
App. 513 (1904). 46. 1 Chamberlayne. Evidence. 355. 356.
39. People v. John. 137 Cal. 220, 89 Pac. 47. People v. Weston, 236 111. 104, 86 N. E.
1063 (1902) ; Schearer v. Harber, 36 Ind. 536 188 (1908) ; Skaggs v. State, 108 Ind. 53, 8
(1871); In re Wiltsey's Will (Iowa), 98 X. E. 695 (1886), A second interpreter may
X. W. 294 (1904). be another deaf mute. Skaggs v. State, 108
40. State v. Thompson. 14 Wash. 285. 44 Tnd. 57, 8 X E. 695 (1886); State v. Burns,
Pac 553 (1896); Barber, etc, Co. v Odasz, 78 N. W. 681 (1899).
57 U. S App 129, 85 Fed. 754 (1898). 48. Writing by a deaf-mute has been sug-
156, 157 PROTECT SUBSTANTIVE RIGHTS. 84
The same considerations apply to a witness who cannot speak on account of
shock 49 or who is of tender years 50 or bashful. 51
156. [Right to Prove One's Case] ; Scope of Right. 52 The scope of a party's
case, which is protected by the administrative principle under consideration, is
such as will cover the proof of all facts as to which at any stage of the case he
has the burden of evidence. 53 In other words, it extends to proof of every
fact which he needs or on which he relies to establish his claim or defense. It
is the positive, affirmative evidence on which he rests his position ; as distin-
guished from evidence testing or rebutting the affirmative case against him, the
right of introducing which is elsewhere considered.
Evidence in Chief or in Rebuttal. The difference between these two classes
of facts, those covered by the scope of the first and those covered by that of the
second of the party's legal rights in a judicial trial is obvious. The first set of
facts is, -as it were, placed originally by the actor in the scale to establish a
prime facie case 54 or by the non-actor, 55 to make an equilibrium in a civil, or
a reasonable doubt in a criminal one, as the case may be, by means of a de-
fense. The second set of facts are those adduced at a later stage of the trial
by these respective litigants, in order to maintain their contentions by off-
setting any unfavorable inferences arising from facts first introduced by the
adversary at the last preceding stage. The original case of either party is
covered by his evidence in chief. The evidence which antagonizes that pro-
duced by his opponent, is evidence in rebuttal.
157. [Right to Prove One's Case] ; Limited to Proof of Res Gestae. 56 The
right to insist upon presenting to a tribunal the best evidence within the pro-
ponent's power is subject to a procedural qualification of great importance.
The right does not apply equally to all branches of a party's case. His claim
is confined to proof of the res gestce, or more properly to such facts found infer-
entially or in specie among the res gestce as are constituent. Where direct
proof of the res gestce is unattainable, he may, as of right, establish probative
gested as a preferable substitute for signs. 53. Infra, 402 et seq.
Morrison v. Leonard, 3 C. & P. 127 (1827). "This burden, however, which [in a crim-
But the better reasoning seems to be with the inal case] was simply to meet the prima facie
cases which deny such a modification of the case of the government, must not be con-
usual rule. State v. De Wolf, 8 Conn. 98 founded with the preponderance of evidence,
(1830); State v. Howard, 118 Mo. 127, 144, the establishment of which usually rests
24 S. W. 41 (1893). upon the plaintiff." Lnited States v. Denver,
49. Roberson v. State (Tex. Cr. 1899) 49 S. etc., R. Co, 191 U. S. 84, 92, 24 Supp. Ct.
W. 398. 33, 35, 36 (1903).
50. Lord Mohun's Trial, 12 How. St. Tr. 54. Infra, 409.
950 (1692). 55. Actor in this treatise will be used as
51. Connor v State, 25 Ga. 515 (1858); designating the party having the burden of
Earl of Wintowns Case, 15 How. St. Tr. 804, proof: non-actor, or reus, as indicating his
861 (1716). opponent.
52. 1 Chamberlayne, Evidence, 357. 56. 1 Chamberlayne, Evidence, 358.
85 RIGHT TO PROVE CASE. 158, 159
facts, from which, as circumstantial evidence, the existence of the res gestce
or constituent facts may be inferred.
The ultimate possible relations of any fact are infinite in number. For the
practical purposes of a trial lines or perhaps more properly, circles of logical
relevancy must be drawn upon the proposition in issue as a quasi center. The
circles are two; and precisely where each circle shall be drawn is necessarily
determined by an exercise of administrative power. When these circles are
formed, within the first will lie the facts which must be considered ; within the
second are properly placed facts which may be investigated. Beyond lie irrele-
vant facts, which should not be investigated. The first circle includes res gestce
or constituent facts. The second embraces those which are relevant but not
constituent. Outside the second circle, are the irrelevant, nonprobative facts.
In other words, the right of a party is to prove the res gestce or constituent
facts; by direct proof if and so far as in his power; by probative facts so far
as he is forced to resort to these.
158. [Right to Prove One's Case] ; Order of Stages. 57 The order in which
evidence may be introduced is within the administrative power of the presiding
judge. His action must be reasonable, in view of all the circumstances of the
case, including the existence of any rule of practice on the observance of which
the parties may have relied, the reasons upon which such a rule of practice has
been founded, the action of other judges on similar states of fact and the like.
If the action is reasonable it will be sustained, though each judge of an appel-
late court would himself have acted otherwise under the same state of facts.
159. [Right to Prove One's Case] ; Right to Open and Close. 58 At each
stage of a judicial trial, by a fairly uniform practice, the parties alternate ; -
the litigant who has the right to open and close preceding at each stage and
being immediately followed by his opponent. This continues until neither
party has further relevant facts to present for consideration.
Plaintiff Has Right. In certain jurisdictions as, Alabama, 59 California, 60
Maryland, 61 and Massachusetts 62 the rule of practice, except so far as modi-
fied by statute, is that the plaintiff invariably opens and closes, regardless of
the state of the pleadings. With these infrequent exceptions, however, the
rules of practice award the right, from obvious considerations of fairness, to
the party having the burden of proof. 63
The right may be waived, and a waiver of the right to open implies the
57. 1 Chamberlayne, Evidence, 359. 10) 25 (1848). See also Yingling v. Hesson,
58. 1 Chamberlayne, Evidence, 360. 16 Md. 112, 121 (1860).
59. Chamberlain v. Gaillard, 26 Ala. 504 62. Dorr v. Tremont Bank, 128 Mass. 349
(1855). (1880). See also Bradley v. Clark, 1 Cush.
60. Benham v. Rowe, 2 Cal. 387, 56 Am. (Mass.) 293 (1848).
Dec. 342 (1852). 63. Semler Milling Co. v. Fyffe, 127 111.
61. Townsend v. Townsend, 7 Gill (Md. App. 514 (1906).
PROTECT SUBSTANTIVE RIGHTS. 86
waiver of the right to close where the other party omits argument. 64 Who is
actor is a question which, under the common law system, would be decided
upon an inspection of the pleadings." 1 '
160. [Right to Prove One's Case] ; Plaintiff as Actor . Should the plaintiff
have the burden of proof on any issue," 7 including that of damages, 08 or if,
there being several defendants, he is found to have the burden of proof as to
any of them," 9 he will be accorded, as a rule, the right to open and close the
entire case. 70
161. [Right to Prove One'fc Case]; Defendant as Actor. 71 A defendant's
confession, in order to confer on him the privileges of the actor to open and
close must as in other cases, be full and complete as to the existence of sufficient
constituent of component facts to constitute a prima facie case in the plaintiff.
A partial confession is not sufficient. 72 Xor is this right lost because the
plaintiff fails to introduce any evidence on his own behalf. 73 At common law,
unless defendant by his pleadings admits plaintiff's cause of action and relies
on affirmative defenses, he is not entitled to open and reply. 74 Where the
defendant is actor, he will receive, as a rule, the right to open and close. 75
162. [Right to Prove One's Case]; Code and Common Law Pleading; Admis-
sions. 76 Under common law pleading, when a defendant, by not denying, ad-
mitted all the material allegations of the plaintiff's declaration, the burden of
proof was assumed by the defendant. 77 Under code pleading the rule takes on
the following form : The defendant may acquire the right to open and close by
admitting all the material 78 allegations of the plaintiff's complaint 79 and assign-
ing an affirmative defense. 80 Probably the same right accrues to him by making
the same admissions at the trial. 81
64. St. Louis & S. F. R Co. v. Johnson 74. Leesville Mfg Co v. Morgan Wood &
(Kan. 1906), 86 Pac. 156. Iron Works, 75 S. C. 342, 55 S. E. 768 (1906).
65. Beale-Doyle Dry Goods Co. v. Barton, 75. Gibson v. Reiselt, 123 111. App. 52
80 Ark. 326, 97 S. W. 58 (1906). (1905). Shaffer Bros. v. Warren, (Iowa
66. 1 Chamberlayne. Evidence, 362. 1905) 102 N. W. 497.
67. Taylor v. Chambers, 2 Ga. App. 178, 58 76. 1 Chamberlayne, Evidence, 364, 365.
S. E. 369 ( 1907 ) . 77. Infra, 396.
68. Geringer v. Novak, 117 111. App. 160 78. List v Kortepeter, 26 Ind. 27 (1866);
(1904). Murray v. New York, etc., Co., 85 N. Y. 236
69. Clodfelter v. Hulett, 92 Ind. 426 (1881).
(1883). See also Sodousky v. McGee, 4 J. J. 79. Fairbanks v. Irwin, 15 Colo. 366
Marsh. (Ky ) 267 (1830). (1890) ; Jackson v. Delaplaine, 6 Hous. (Del.)
70. A co-defendant who pleads affirma- 358 (1880); Osgood v. Grosellose, 159 111.
tively has, however, been granted the same 511, 42 N. E. 886 (1896).
right as if he were sole defendant. Sodousky 80. An argumentative denial though af-
v. McGee, 4 J. . J. Marsh. (Ky.) 267 (1830). firmative in form, is not sufficient. There
71. 1 Chamberlayne, Evidence. 363. must be an explicit admission. Robbins v.
72. Southern Ry. Co. v. Smith, 102 S. W. Spencer, 121 Tnd 594, 22 N. E. 660 (1889).
232, 31 Ky. L. Rep. 243 (1907). See also Turner v. Cool, 23 Tnd. 56 (1864) ;
73. Dickey v. Smith, 127 Ga. 645, 56 S. E. Bradley v. Clark, 1 Cush. (Mass.) 293 (1848).
756 (1907). 81. Campbell v. Roberts, 66 Ga. 733
87 RIGHT TO PROVE CASE.
Again the plaintiff may in his reply or perhaps by verbal admissions at the
trial concede the existence of the affirmative facts relied upon by the defendant
in his answer, 82 and so retain the right to open and close, but he must make
his admissions clear and comprehensive, leaving nothing, no matter how incon-
sequential, to be proved by plaintiff in order to establish a prima facie case. 83
For example, where a plaintiff charges gross negligence, a defendant cannot
acquire a right to open and close by admitting simple negligence. 84
163. [Right to Prove One's Case] ; Proceedings in Bern. 85 On proceedings
in rem he who concedes that his adversary is entitled to succeed unless he can
show that he is himself entitled to do so, has the right of an actor. Where, in
in a claim case, the claimant admits that the plaintiff has a prima facie case,
he will be deemed to have acquired the right to open and close. 86
164. [Right to Prove On^'s Case] ; Variations in Order of Evidence. 87 If he
think proper, a presiding judge may receive a relevant fact at any time prior to
final judgment ; 88 provided that when evidence is offered at a stage at which
alone it can be effective for the purpose for which it is offered the discretion of
the presiding judge does not extend to declining to receive it until a later
stage. In other words, the order of evidence is a matter of administrative
control ; it is, as is usually said, " within the court's discretion." 8 * So long
as the action of the trial court is reasonable, it will stand. 90 A judge may in
any case reject tenders of evidence for the non-actor made before the actor has
rested his case. 91
In all cases of variation, good reasons must be furnished. 92 No concession
(1881) ; City of Aurora v. Cobb, 21 Ind. 492 case that the proponent has the burden and ia
(1863). But compare Wigglesworth v. At- the actor throughout the hearing. Where all
kins, 5 Cush. (Mass.) 212 (1849) ; Lake On- claimants stand on an equal footing the allot-
tario Nat. Bank v. Judson, 122 N. Y. 278, 25 ment of the order of argument is purely a
N. E. 367 (1890). See contra, Lake Ontario matter of administration. Sorensen v. Soren-
Nat. Bank v. Judson, 122 N. Y. 278, 25 N. E. sen, (Neb. 1904) 98 N. W. 837-
367 (1890). 87. 1 Chamberlayne, Evidence, 367, 368.
82. Cilley v. Preferred Ace. Ins. Co., 187 88. Western Union Tel Co. v. Bowman,
N. Y. 517, 79 X. E. 1102 (1907) [affirming (Ala. 1904) 37 So. 493; Van Camp v. City of
109 N. Y. App. Div 394, 96 N Y. Suppl. 282 Keokuk, (Iowa 1906) 107 N. W. 933; Pharr
(1905)]. v. Shadel. (La. 1905) 38 So. 914: Knapp v.
83. Southern Ry. Co in Kentucky v Steele, Order of Pendo, 36 Wash. 601, 79 Pac. 209
28 Ky. L. Rep. 764. 90 S. W. 548 U906). (1905).
84. Illinois Edwards v. Hushing, 31 111. 89. Alquist v. Eagle Ironworks, (Iowa
App. 223 (1888). 1904) 101 N W. 520.
loica. Viele v. Germania Ins Co., 26 Burnside v Town of Everett, 186 Mass. 4,
Iowa 9, 96 Am. Dec. 83 (1868). 71 N. E 82 (1904).
Xorth Carolina? Love v. Dickerson, 85 90. McBride v. Steinweden, 72 Kan. 508,
N. C. 5 (1881). 83 Pac. 822 (1906)
United States. Hall v. Weare, 92 U. S. 91. Bowen v. White, 26 R. I. 69, 58 Atl. 252
728, 738 (1875). (1904).
85. 1 Chamberlayne, Evidence. 366. 92. Cincinnati. X. O. & T. Ry. Co. v. Cox,
86. Turner v Elliott. 127 Ga. 338, 56 S E. (Tenn 1906) 143 Fed 110; Wilkie v. Rich-
434 (1907). It is the sounder rule in a will mond Traction Co., (Va. 1906) 54 S. E. 43.
PROTECT SUBSTANTIVE RIGHTS.
88
will be given to evidence which is immaterial, 93 or simply cumulative. 94
Among administrative reasons is that of expediting trials. 90 In judging of
the reasonableness of the action of the trial judges, the existence of certain
regular stages approved in practice is a consideration of much importance.
Variations require explanation, i.e., the assignment of an administrative rea-
son. On the other hand, the preservation of the established order requires no
defense or explanation.
165. [Right to Prove One's Case] ; Evidence in Chief. 96 A party on his
original case may introduce evidence appropriate only to rebuttal. 97 On the
other hand, the actor may supplement his evidence in chief at that stage. 98
Either party may be permitted to do this not only after his case has been stated
by him to be closed, 99 and after both parties have rested their respective cases, 1
but after one party has rested and the other declined to introduce any evidence. 2
Nor is it even material that a motion for a verdict 3 or nonsuit has been made, 4
or even allowed 5 or refused. 6 Xor have the limits of the judge's power in this
respect yet been reached. Although the practice should be discouraged as a
rule, 7 additional evidence may, in the interests of justice, be received even after
counsel have concluded their arguments, 8 the case been taken under advisement
by the court, 9 or the judge has given his charge to the jury. 10 Nor is even this
the extent of administrative power. A party may ask and be permitted to
introduce new evidence even after the jury have retired to deliberate as to
their verdict; X1 and in fact, it is said, at any time before they are discharged
93. Potsdam Electric Light & Power Co. v.
Village of Potsdam, 9") N. Y. Suppl. 551, 112
App. Div. 810 (1906).
94. In re Walker's Estate, (Cal. 1905) 82
Pac. 770.
95. Bartlett & King v. Illinois Surety Co.,
(Iowa 1909) 119 N. W. 729.
96. 1 Chamberlayne, Evidence, 369-371.
97. Stephens v. Elliott, 36 Mont. 92, 92 Pac
45 (1907). See Witnesses.
98. Blair v. State, 69 Ark. 558. 64 S. W.
948 (1901); Hathaway v. Hemingway, 20
Conn. 191, 195 (1850).
99. Hartrick v. Hawes. 202 111. 334, 67 N. E.
13 (1903) [affirming judgment, 103 111. App.
433 (1902)]. Cathcart v Rogers, 115 la. 30,
87 N. W. 738 (1901). Com. v. Biddle, 200
Pa. 640. 50 Atl 262 (1901).
1. Watson v. Barnes, 125 Ga. 733, 54 S. E.
723 (1906).
2. Pocahontas Collieries Co. v. Williams,
105 Va. 708, 54 S. E. 868 (1906): Reiff v.
Coulter, (Wash. 1907) 92 Pac. 436
3. Bridger v. Exchange Bank, 126 Ga. 821,
56 S. E. 97 (1906); Cathcart v. Rogers, 115
Iowa 30, 87 N. W. 738 ( 1901 ) .
4. Hill v. City of Glenwood, (Iowa 1904)
100 N. W. 522; Richardson v. Agnew, (Wash.
1907) 89 Pac. 404
5. Penn v. Georgia, S. & F. Ry. Co., 129 Ga.
856, 60 S. E. 172 (1908).
6. Dorr Cattle Co. v. Chicago & G. W.
Ey. Co, (Iowa 1905) 103 X. W. 1003; An-
derton v. Blais, 28 R. I. 78, 65 Atl. 602
(1906).
7. Law v. Merrills, 6 Wend. (N. Y.) 268,
281 (1830).
8. Dyer v. State, 88 Ala. 225, 229, 7 So. 267
(1889). See also Western Union Tel. Co. v.
Bowman, (Ala. 1904) 37 So. 493.
9. Gross v. Watts, 206 Mo. 373, 104 S W.
30 (1907).
10. Dyer v. State, 88 Ala. 225, 229, 7 So.
267 (1889); Braydon v. Goulman, 1 T. B.
Monr. 115 (1824).
11. McComb v. Ins Co., 83 Iowa 247, 48
N. W. 1038 (1891) Van HUBS v. Rainbolt,
2 Coldw. 139, 141 (1865).
9 EIGHT TO PROVE CASE. 165
by order of court; 12 though at law, 13 as distinguished from equity, 14 no such
permission would probably be accorded after the verdict 15 or other final adju-
dication. 16
The principles are the same whether the evidence offered is by a new wit-
ness 17 or by the further examination of one who has already testified. 18
Should the court admit the evidence out of course, the right of the opponent
to meet and test it is obvious. 19
Opening of Case for Limited Purpose. This opening of a case for the
purpose of receiving new evidence is not of necessity a general opening of the
case for all purposes. Its effect may be limited to furnishing an opportunity
for introducing the specific fact alleged. 20
Reason Required. So long as this administrative power to vary the order
of evidence is exercised with reason, its exercise will not be revised. 21
The higher interests of the furtherance of justice, 22 which it is the appropri-
ate function of the court to regard in the discharge of its administrative func-
tions, supervenes as soon as the legal right of the party to a reasonable oppor-
tunity to present his case, 23 or test that of his opponent, 24 has been met in the
course of the trial. The order of evidence, in this sense, is within the admin-
istrative power of the presiding judge. 25
The maximum of concession will be extended where the evidence which the
party asks to supply is of a formal nature, or where it has been assumed that
it has been shown, that its existence is not controverted or that, as matter of
law, it could not be controverted ; 26 or where the evidence offered is already
in the case in another form. 27 This may be done up to the time when the
jury retire. 28
12. "According to the course of practice Atl. 419 (1904); Bridger v. Exchange Bank,
and common justice, before them in their 126 Ga. 821, 56 S. E. 97 (1906). The re-
several Courts, upon trial by jury, as long as striction originally imposed by the Court upon
the prisoner is at the bar and the jury not the testimony to be admitted may, in the
sent away, either side may give their evidence judge's discretion, itself be removed by subse-
and examine witnesses to discover truth." quent order. Ailing v. Weissman, 77 Conn.
Answer of judges in Lord Stratford's Trial, 394, 59 Atl. 419 (1904).
Lords' Journals, April 10, 1642. 21. Hill v. City of Glenwood, (Iowa 1904)
13. Meadows v. Ins. Co., 67 Iowa 57, 24 100 N. W. 522.
N. W. 951 (1885). 22. Infra, 226.
14. Clavey v Lord, 87 Cal. 413, 416, 419, 23. Supra. 149 et seq
25 Pac. 493 (1891). 24. Supra, 171 et seq.
15. iSee, however, Bahnsen v. Horwitz, 90 25. Ellison v. Branstrator, 153 Ind. 54
N. Y. Suppl. 428 (1905). N. FT 433 (1899) : Hess v. Wilcox, 58 Iowa
16. Commercial Bank v. Brinkerhoff, (Mo. 380, 383, 10 N. W. 847 (1882)
App. 1905). So S. W. 121. Kansas. Wilson v. Hays' Ex'r, 109 Kan.
17. Rucker v Eddings, 7 Mo. 115, 118 321, 58 S. W. 773 (1900); Webb v. State, 29
nH41). Ohio St. 351, 356 (1876).
18. Rucker v. Eddings, 7 Mo. 115, 118 26. Browning v. Huff, 2 Bail. 174, 179
<1H41). (1831).
19. Bersrman v. London & L. Fire Ins. Co., 27. Kane v. Kane, 35 Wash. 517, 77 Pac.
-U Wash 398, 75 Pac. 989 (1904). 842 (1904).
20. Ailing v. Weissman, 77 Conn 394, 59 28. " Where mere formal proof has been
166,167 PROTECT SUBSTANTIVE RIGHTS. 90
The minimum of administrative indulgence will be shown where the course
of the trial has developed a fatal weakness, unconsidered by the party
now offering the evidence, and where the latter 29 or other interested or
friendly person is offered as a witness for the purpose of repairing the diffi-
culty. 30
166. [Right to Prove One's Case]; Evidence in Chief; Actor. 31 It will be
convenient, therefore, to assume as universal that which is so general and say
that the party having the burden of proof the actor, as he may be shortly
called after making such an " opening " as is permitted or deemed advis-
able, first presents his case to the jury. He calls and examines his witnesses
the stages of whose examination present a matter for separate consideration 32
submits his documents, exhibits to the perception of the court, any article,
animate or inanimate, which is in any way relevant, and rests his case. This
is his evidence in chief. It should contain every fact necessary to the estab-
lishment of a prima facie case, 33 it covers the entire res yestce out of which the
right or liability claimed or asserted arises.
167. [Right to Prove One's Case] ; Nonactor. 34 His adversary the non-
actor, the reus whose only burden in proof in civil cases is the creation of
an equilibrium or, in criminal cases, establishing a reasonable doubt, 35 at the
close of the actor's evidence in chief, becomes entitled to an opportunity to
present his case, by way of defense. 36 Before doing so, a preliminary ques-
tion should be resolved: Has the actor presented to the court a prima facie
case? In other words, has he produced such evidence in favor of his conten
tion that the jury, or judge, as the case may be, would be justified as reason-
able men in acting in accordance with it '? This point is raised by a request
for a ruling upon the basis that such is not the case. The court may, upon
suitable terms, rule as to such a motion.
If the result is adverse to the actor, that is the end of the case. Otherwise,
i.e., if the point is not raised or not sustained, the nonactor proceeds. He
" opens " his case to the jury, calls his witnesses, who are examined at the-
same successive stages as those of his opponent. 37 produces his documents,
offers for inspection such articles as may be deemed relevant ; and, in turn
rests his case. This is his evidence in chief, his case in reply. The non-
omitted, courts have allowed witnesses to be 32. See Witnesses, Infra, 1171 et. seq.
called or documents to be produced at any 33. Southern Ry. Co. v. Gullatt, (Ala. 1907)
time before the jury retire, in order to supply 43 So. 577.
it" Rucker v. Eddinps, 7 Mo. 115, 118 34. 1 Chamberlayne, Evidence, 373.
(1841). 35. Infra, 4SO.
29. Lewis v. Helm, (Colo. 1907) flO Pac. 97; 36. The rights of co-defendants to be heard
Commercial Bank v. BrinkerhofT, (Mo. App. with respect to the contentions of each other
1905) 85 S. \Y. 121. are considered in (Jrundy v. Janesville, 84
30 Law v Merrills, 6 Wend. 268, 281 Wis. 574, 54 X. W. 1085 (1893) : R. v. Cooke,
(1830). 1 C. & P. 322 (1824).
31. 1 Chamberlayne. Evidence, 372. 37. See Witnesses 1171 et. seq
91 RIGHT TO PROVE CASE. 168, 1GP
actor's evidence in chief should contain proof of all facts necessary to meet
the claim of right or liability advanced by the actor. 38
At this [joint it is open to the actor to ask for a ruling to the effect that his
original prima facie case has not been impaired and that, consequently, there
is nothing for the jury to try. He may, in other words, ask the court to rule
that the jury could rot, as reasonable men, find otherwise than in favor of
his contention.
168. [Right to Prove One's Case] ; Order of Topics. 39 While it is not dis-
puted that what is preliminary should precede in proof that which is subse-
quent in point of time, 40 or causation, counsel claim and customarily exercise
the right to open their cases to the jury in any order of topics which seems to
them effective for their. purpose. In connection with the order of topics, an
administrative question is presented to the court which, unless it should appear
that the issue is likely to be befogged or the jury misled, will usually be exer-
cised by leaving the matter to the determination of the parties. This order is
not commonly disturbed by the court, where the facts alleged are relevant, un-
less as adopted it is obviously unfair or prejudicial. 41 Therefore, the order
in which counsel may see fit to offer evidence of the respective topics covered
by their contentions at any particular stage of the proof, is largely left to the
unhampered option of counsel. 42 They have the right to call witnesses at the
appropriate stage in proof of relevant topics in any order they may see fit, in
the absence of general or special regulation as that requiring a party who
declines to go out with his witnesses to testify before they do. 43 This right
connotes liberty of placing the topics in any order which he desires. The re-
verse is equally true that the right to vary the order of topics connotes that
of calling witnesses in any order which may seem judicious.
169. [Right to Prove One's Case] ; Conditional Relevancy; Bearing Apparent. 44
The right of counsel to present facts in any order of topics is also subject to
the very important qualification that it should affirmatively appear, or be made
to appear, that the fact offered in any case is relevant. Where the actual or
potential relevancy is obvious, on its face, the party as of right may introduce
it ; though it be not, unless .supplemented by other evidence sufficient to
warrant a finding in his favor. 4 '" But where the relevancy of the fact offered
38. Hathawav v. Hemin<rvvay, 20 Conn. be of no avail without further proof."
191, 195 (1850). branch Bank v. Kinder. 5 Ala. 9, 12 (1843).
39. 1 Chamberlayne. Evidence, 374. 42. McDaneld v. Logi. 143 111. 487, 32 X. E
40. White v. Wilmington City Ry. Co., 423 (1892)
(Del. Super 1906) 63 Atl 931 43. Barkley v. Bradford, 100 Ky. 304, 38
41. - It is certainly the privilege of a party S. W. 432 (1896) ; demons v. State, 92 Tenn.
to present his testimony in the mode his 282, 288, 286. 21 8. W. 525 (1892).
judgment or fancy may dictate: and. if rele- 44. 1 Chamberlayne, Evidence. 375.
vant. it cannot be objected to, although it may 45. Adams v. Adams, 29 Ala. 433 (1856).
Earnhardt v. Clement, 49 S. E. 49 (1904).
170 PROTECT SUBSTANTIVE RIGHTS. 92
is dependent upon proof of other facts, a somewhat different situation is pre-
sented, though the logical bearing is obvious.
The court is custodian of the time of the tribunal. In discharge of its ad-
ministrative function to expedite trials, 46 it is quite justified in insisting that
time be not fruitlessly consumed. If evidence is offered which will be of no
consequence unless another fact be also shown to have existed, ample warrant
is furnished for requiring some satisfactory assurance, before admitting the
fact offered, that evidence will at some time be furnished as to the existence
of the conditioning fact. 47 In other words, if proof of two facts is essential
to the relevancy of either, the court may well insist upon knowing that both
are to be shown before he admits proof as to either of them. 48 Still, the party
evidently can prove only one of these facts at a time, 49 and cannot reasonably
be required to prove all his facts, even those inseparably connected, by a single
witness. 50 He may, in general, present either fact he chooses first ; and, if
the fact so selected has an apparently logical bearing upon the truth of some
proposition in issue, 51 if connected with it later in an appropriate manner, 52
the evidence is competent ; 53 though standing alone it is irrelevant.
170. [Right to Prove One's Case] ; Bearing not Apparent. 54 Where the
actual or potential relevancy of the statement or other fact offered is not ap-
parent, the court may well ask the assurance of counsel as to proof of connect-
ing facts, and, if the information is not satisfactory, may require immediate
proof of the connecting facts as a condition for admitting the statement orig-
inally offered. 55 With such an assurance the court will, as a rule, rest con-
tent, 56 and -the evidence is admitted de bene provisionally to be con-
nected later, 57 by evidence which will render it relevant. 58 If the connection
is not made, if the appropriate fact is not proved, the remedy is to have the fact
already introduced in evidence stricken oat, 59 and this has been deemed a suf-
46. Infra, 304. 55. Hagan v. McDermott, (Wis. 1908) 115
47. Bashore v. Mooney, (Cal. App. 1906) -V W. 138.
87 Pac. 553: Kenniff v. Caulfield, 140 Cal. 34, 56. Wilson v. Jernigan, 57 Fla. 277. 49 So.
73 Pac. 803 i 1903). 44 (1909) ; Lanier v. Hebard, 123 Ga. 626, 51
48. Rogers v. Brent, 10 111. 573, 587 S. E. 632 (1905 ); Ellis v. Thayer, 183 Mass.
(1841M; Sloan v. Sloan, (Or. 1904) 78 Pac. 309, 67 N. E. 325 (1903).
893. 57. Hoffman v. Harrington, 44 Mich. 183,
49. Palmer v. McCafferty, 15 Cal. 334, 335 184, 6 N. W. 225 (1880). Pennsylvania.
(1860); Rogers v. Brent, 10 HI. 573. 587 American Car, etc., Co. v. Alexandria Water
(184!)). Co., 218 Pa. 542, 67 Atl. 861 (1007).
50. Rogers v. Brent. 10 111. 573. 587 (1849). 58. McCoy v. Watson, 51 Ala. 466. 467
51. Rogers v Brent, 10 111. 573, 588 (1849). (1874); Bischof v. Mikels, 147 Ind. 115. 46
52. Weidler v. Farmers' Bank, 11 S. & R. K E. 348 (1897). Cramer v. Burlington, 4Sf
(Pa.) 134, 140 (1824). Iowa 315, 319 (1875).
53. Palmer v. McCafferty, 15 Cal. 334, 335 Minnesota. Lane v. Agric. Soc., 67 Minn.
(1860) ; Rogers v. Brent, 10 111. 573, 587, 588 65, 69 N. W. 463 (1896).
(1S49) ; Ming v. Olster, 195 Mo. 460, 92 S. W. 59. Hix v. Gulley, 124 Ga. 547, 52 S. E.
898 (1906) 890 (1905). Rogers v Brent, in 111. 573,
54. 1 Chamberlayne, Evidence, 376. 587 (1849). Dorr Cattle Co. v. Chicago &
G. W. Ry. Co., 103 N. W. 1003 (1905).
93 EIGHT TO TEST ADVEKSARY. 171, 172
ficient protection to the rights of the adverse party, 60 or as a fair risk of litiga-
tion. 01 If the motion to strike out is not made, the objection to the admission
itself is regarded as waived. 62
171. Right to Test Adversary's Case. 63 The right to test an oppo-
nent's case which is conferred on every litigant by substantive law is of an
importance to him which makes its denial or unreasonable curtailment con-
trary to the principle of judicial administration now under consideration.
This right of testing is, in the normal course of judicial proceedings, exercised
by the parties at two principal stages, (a) on cross-examination, and (b) on
rebuttal.
172. [Right to Test Adversary's Case] ; Cross-examination. 64 The right to
a reasonable opportunity for cross-examination, at an appropriate stage, and in
relation to matters then open for consideration, 65 is undisputed in any quarter.
The right to cross-examine is, however, conditioned by the existence of a direct
examination. No right exists in the absence of direct examination. A party
has no just legal claim to insist upon cross-examining a witness whom his ad-
versary has merely called and sworn. 06 The rule as to the right of cross-ex-
amination in a criminal 7 case is the same which is applied to a civil OJS one;
although what is reasonable as to scope in any particular instance may be af-
fected by the nature of the proceeding in which the question arises. 69 The
right of cross-examination in criminal cases has also been conferred by consti-
tutional provisions. 70
60. Palmer v. McCafferty, 15 Cal 334, 335 discovery of truth and in furtherance of
(1860) ; Alexander v. firover, 190 Mass. 462, justice, and not be so restricted as to defeat
77 N. E. 487 ( 1906) ; Haigh v. Belcher, 7 C. these ends." Prussian Nat. Ins. Co v. Empire
& P. 389, 390 (1836). Catering Co., 113 111. App. 67 (1904), per
61. O'Brien v. Keefe, 175 Mass. 274, 56 Vickers, J., citing Hanchett v. Kimbark, 118
N. E. 588 (1900). 111. 121 (1886).
62. Alexander v. Grover, 190 Mass. 462, 77 66. Harris v. Quincy, O. & K. C. Ry. Co.,
N. E. 4S7 (1906). 115 Mo. App. 527, 91 S. W. 1010 (1906):
63. 1 Chamberlayne, Evidence, 377. Aikin v. Martin. 11 Paige 499 (1845)
64. 1 Chamberlayne, Evidence, 378. 67. Howard v. Com., 25 Ky. L. Rep. 2213,
65. City of Chicago v. Marsh, 238 111. 254, 80 S. W. 211 (1904) [rehearing denied, 26
87 N. E. 319 (1909). The supreme court of Ky. L. Rep. 36, 81 b. W. 704]: People v
isorth Dakota states a familiar and conceded Billis, 110 N. Y. Suppl. 387, 58 Misc Rep. 150
rule of procedure in saying: State v Foster. (1908).
(N. D. 1905) 105 X. W. 938, per Young, J. 68. Nickelson v. Dial, 93 Pac. 606 (190B).
"An opportunity to cross-examine is a matter Sullivan v. Fugazzi, 193 Mass. 518. 79 N. E.
of right, but the latitude and extent of the 775 (1907).
cross-examination rests largely in the discre- 69. Bight of co-defendants. In a crirn-
tion of the presiding judge, and he may place inal case, where two co-defendants are being
' a reasonable limit upon the time which shall tried together, it has been held bad adminis-
be allowed for the examination or cross-ex- tration to require that the counsel for only
animation of a witness'" The limitations one of the defendants should cross-examine
upon this exercise of discretionary power are the state witnesses. People v. Bill's. 110 N.
thus stated by the Illinois Court of Appeals: Y. Suppl 387, 58 Misc. Rep. 150 (1908). .
" This discretion should be exercised for the 70. Wray v. State, (Ala. 1908) 45 So. 697.
173, 174 PROTECT SUBSTANTIVE EIGHTS. 94
173. [Eight to Test Adversary's Case]; Rebuttal. 71 A party has a legal
right not only to test by cross-examination or otherwise, 72 the case made by his
opponent, at any stage; it is a further part of the right, at present under con-
sideration, that he should be at liberty to introduce evidence to offset any af-
firmative matter on which his opponent relies. In other words, each litigant
has a right to rebuttal^ 3 Whenever a party at a particular stage of rebuttal,
original or subsequent, introduces to the attention of the tribunal new matter,
it becomes the right of his opponent to introduce evidence to meet it. Should
the opponent, at this stage, in turn set up new matter, or a new aspect of old
matter, the right to a subsequent stage of rebuttal to meet it enures to the
benefit of the original pleader ; and so on, until the supply of relevant facts
is exhausted.
Testing on Rebuttal. But the litigant may not only introduce at this stage
facts which tend directly to meet and disprove those set up by his opponent;
he may introduce evidence which tests them and merely minimizes or destroys
their probative force.
Scope of Rebuttal. The object of rebutting evidence is to meet, antagonize
or confute new facts introduced by the adverse party at the next previous
stage,' 4 whether given by himself, 75 or by his other witnesses 7 " or on cross-
examination: 77 mere reassertion of the propositions advanced on the evi-
dence in chief not being permitted at this stage. 78 The facts offered in re-
buttal being in their nature deliberative, 79 strong probative force is not essen-
tial to adinissibility; s " although some evidentiary cogency, actual or poten-
tial, must be made to appear. 81 On the other hand, no test of admissibility is
furnished by the fact that the rebutting evidence tends to strengthen the case
made by the evidence in chief in a civil or criminal s2 case. That is, directly
or indirectly, the object of any rebuttal.
174. [Right to Test Adversary's Case] ; Actor. 83 If the actor fail at the end
of the nonactor's case to move for a verdict in his own favor; or if, when such a
motion is made, it has been overruled ; the actor has reached the stage of re-
71. 1 Chamherlayne. Evidence. 370. 76. Cross v. State, (Ala, 1!K)0) 41 So 875.
72. Supra, 172. 77. Thomas v. State. (Ala. 11107) 43 So.
73. " Kehuttinjj evidence means not merely 371 Roberts v Terre Haute Electric Co.,
evidence which contradicts the evidence on ( Tnd. App 1006) 7(5 X. E S!).) [denied peti-
the opposite side, hut evidence in denial of tion for rehearing. 76 \. K. 323 (1905)].
some affirmative fact which the answering 78. State v. Kelly. 77 Conn. 260, 58 Atl.
party is endeavoring to prove." State v. 705 (1004). Hal I wood Cash Register Co. v.
Fourchy, 51 T.a. Ann. 22S. 240. 25 So. 109, Rollins. 62 Atl. 380 (1005).
114 I 1800). 79. Xi/pra, 34.
74. Pronskovitch v. Chicago & A. TJv. Co.. 80. State v. C.allajrher, 14 Idaho 56, 94
232 Til. 13f>. 83 \ E. 545 < 1908) Alpena Tp. Pac. 581 (190SK
v Mainville, 153 Mich. 732. 117 X. \V. 338, 81. Wojtylak v. Kansas & T. Coal Co.. 188
15 Detroit Lejr. X. 605 (19081. Mo 260. 87 S. \V. 506 (1905) : People v. Cas-
75. Wells v. Gallagher, (Ala. 1905) 39 So. cone. 185 X Y. 317. 78 X". E. 287 (1906).
747: State v. Beckner. 194 Mo. 281, 91 S. W. 82. State v. Howard. (La. 1908) 45 So. 260.
892 (1906) (self defense). 83. I Chamherlayne. Evidence. 380.
95 EIGHT TO TEST ADVEESABY. 175, 176
buttal. The evidence in chief of the nonactor, as is characteristic of the gen-
eral position of one who will succeed if he but offsets the case against him,
has consisted largely of what practically amounts to rebuttal in the average
instance. 84 But, so far as the actor is concerned, the first opportunity for
rebuttal occurs at the close of the nonactor's case. He is not entitled to re-
iterate his evidence in chief, nor to reaffirm what his antagonist has denied,
or to introduce evidence which he should have offered as part of his original
case. 85 All this may be done by leave of court ; 86 but, in the average instance,
to permit it would amount to trying the case over again by the use of cumula-
tive evidence.
The normal scope of rebuttal is that it should meet the new matter given in
the nonactor's evidence in chief ; 87 nor is it material that the nonactor should
have interpolated part of his case into the actor's evidence in chief. 88 His
rights at this stage are confined to attacking the inferences from this new
matter. 89
175. [Right to Test Adversary's Case] ; Use of " Experts." 90 Where a non-
actor introduces expert testimony in support of his position, the actor may, as
a rule, introduce similar evidence on rebuttal. 91
176. [Right to Test Adversary's Case] ; Anticipatory Rebuttal. 92 Where
the position of the nonactor is known to the actor, a very natural impatience
is often shown, especially by inexperienced practitioners, to come at once to
the real point upon which the issue will ultimately turn, by means of what
may be called an " anticipatory rebuttal." 93 It is, however, clear that a fact
is not competent in an actor's evidence in chief merely because it may be re-
ceived upon rebuttal, when that stage is reached. 94 In general, therefore,
such anticipatory rebuttal is excluded ; except by leave of court.
84. Supra, 166. 88. Bade v. Hibbard (Or. 1908), 93 Pac.
85. Wilkinson v. State, 44 So. 611 (1907) 364.
(diagram) ; Patterson v. San Francisco & S. The interpolation itself may not be per-
il. Electric Ry. Co., 147 Cal. 178, 81 Pac. 531 mitted. McGregor v. Oregon R. Co., (Or.
(1905). 1908) 93 Pac. 465.
86. Birmingham Ry., Light & Power Co. v. 89. Hoggson & Pettis Mfg. Co. v. Sears, 77
Mullen, 138 Ala. 614, 35 So. 701 (1903). Conn. 587. 60 Atl 1^3 (1905). Mueller v.
Minard v. West Jersey & S. Ry Co., 64 Atl. Rebhan. 94 111. 142, 150 (1879). Bazelon v.
1054 (1906). Hall v. Wagner, 97 X. Y. Lyon. 128 Wis. 337, 107 N. W. 337 (1906).
Suppl. 570, 111 App. Div. 70 (1906). 90. 1 Chamberlayne. Evidence, 381.
87. American Car & Foundry Co. v. Alex- 91. Guenther v. Metropolitan R. Co., 23
andria Water Co.. 21s Pa. 542, 67 Atl. 861 App. D C. 493 (1904) : William Grace Co. v.
(1907). Morgan v. Hendricks, 80 Vt. 284, Larson, 227 111. 101. 81 X. E. 44 (1907) [af-
67 Atl. 702 (1907). Evidence offered by firming 129 111. App. 290 ( 1906) ].
plaintiff in rebuttal which rebuts no evidence 92. 1 Chamberlayne, Evidence, 382.
offered by defendants is properly excluded. 93. Atlas Lumber & Coal Co. v. Flint, (S.
Saucier v. New Hampshire Spinning Mills, 72 D. 1905) 104 X. W. 1046.
X. H. 292, 56 Atl. o*5 ( 1903) . 94. Maurice v. Hunt, 80 Ark. 476, 97 S. W.
664 (1906).
177-179 PKOTECT SUBSTANTIVE RIGHTS. 96
177. [Right to Test Adversary's Case] ; Nonactor. 05 At the close of the
actor's stage of rebuttal, the burden of evidence 9C returns to the nonactor to
rebut, as it were, the actor's rebuttal. The opportunity to meet rebuttal is,
.for purposes of distinction, -called the surrebuttal. The rights of the nonactor
on surrebuttal are analogous to the rights of the actor on rebuttal. 97 He is not
at liberty, without leave of court, 98 to reaffirm, the allegation of his evidence in
chief. The stage for that is past. 99 His rights are entirely in connection
with the new matter introduced by the actor on his rebuttal. He may directly
deny the existence of those facts or set up other facts inconsistent with their
^effect, supplementing facts ; l or he may attempt to discredit this new matter
or the witnesses by which it is sought to establish it.
178. [Right to Test Adversary's Case] ; Subsequent Rebuttal. 2 An actor
may be permitted 3 to exercise, at the stage of re-rebuttal, as regards the wit-
nesses and new facts set up by the nouactor on surrebuttal. the same rights as
were exercised by the latter at that stage. If new matter appears in the re-
rebuttal the nonactor becomes entitled to a re-surrebuttal, where the rights are
similar to those on surrebuttal, mutatis mutandis; and so on, in alternating
stages to which specific names are not, as a practical matter, usually assigned.
179. Right to the Use of Reason. 4 " At the outset, and for centuries after
the beginnings of our law as an established system there was no clear concep-
tion of Substantive Law as such. The whole legal theory was embodied in
forms of remedy. Ceremonies had been embalmed as primary and immutable
principles of law. Forms and modes of procedure stood in the place of sub-
stantive rights ; nor could justice see beyond them or above them/' 5 In the
slow evolution of legal institutions of Englishmen the use of reason has suc-
ceeded the application of the more formal tests with which our ancestors were
familiar.
A Substantive Right to Reason. In an attempt, at the present day, to de-
termine the truth of a proposition of fact by the use of reason, it is one of the
inherent fundamental rights of the parties to insist that this test should be
95. 1 Chamberlayne, Evidence, 383. 99. Baum v. Palmer, 165 Ind. 513, 76 N. E.
96. Infra, 40'2'et seq. 108 (1905)
97. Connecticut. Leiden v. Allen, 61 Conn. 1. Cooke v.- Loper, (Ala. 1007) 44 So. 78;
173, 2.3 Atl. 963 (1891). Duckworth v. Duckworth, (Md. 1JI03) 56 Atl.
/ llin ois Willa rd v. Pettitt, 153 111. 663, 490; Maloney v. King, (Mont. 1904) 76
39 X E 991 (1895), Pac 4
Michigan. Devonshire v. Peters, 104 Mich 2. 1 Chamberlayne. Evidence, 384.
501, 63 X. W. 973 (1895). 3. State v Alford. 31 Conn. 40, 46 (1862).
Pennsylvania. Koenig v. Bauer, 57 Pa. 4. 1 Cliamberlayne. Evidence. 385.
168, 172 (1868). 5. Hepburn, The Development of Code
Vermont. Pratt v. Rawson, 40 Vt. 183, Pleading. Salmond, Jurisp . (2d ed.) 451.
188 (1868). For some consideration of forma of trial in
98. Crosby v. Wells, 73 X. .T. L,. 790. 67 Atl. England antecedent to the use of reason, see
295 (1907); Wysong v.. Seaboard Air Line supra, 120.
Ry. ( 74 S. C. 1, 54 S. E. 214 (1906).
97 RIGHT TO EEASON. 180-182
reason alone and that the test should be properly applied. The presiding jus-
tice should so discharge his adnr'nistrative functions in dealing with the ad-
mission of evidence as to preserve this right.
180. [Right to the Use of Reason] ; Should Prevent Jury from Being Misled. 6
In enforcing the use of reason upon the jury, the court will be vigilant to
prevent the use of any evidence or argument which will tend to mislead them ;
or to replace reason as a guide by any form of emotionalism. 7
Thus a bitter attack by one party or witness on another party may justify
the court in withdrawing the case from the jury. 8 If counsel insist on asking
irrelevant questions the> court may require him to dictate them out of the pres-
ence of the jury. 9 So appeals to sympathy as by testifying from a stretcher 10
or by showing wounds to the jury should be avoided.
Many of the rules of evidence, procedural or administrative, e.g., excluding
hearsay, 1 " 3 rejecting inference "opinion," as it is called 11 and the like,
have been adopted and are being enforced, with the very object of protecting the
jury from being misled. Similarly, where the undisputed circumstances show
that the testimony of a witness cannot by any possibility be true, it is the duty
of the court to withdraw such testimony from the jury. 12
181. [Right to the TJse of Reason] ; Guessing not Permitted. 13 The jury
will not be permitted to guess. Where they cannot reason to a conclusion in-
volving the necessity of judicial action, they must decline to act. It is the
administrative duty of the court to enforce this rule. It is, for example, error
to submit a cause to a jury where the evidence only enables the latter to guess
as to which one of the several causes produced a certain result. 14
182. [Right to the Use of Reason] ; Striking Out Prejudicial Evidence. 15
Where inadmissible evidence has been received and is of such a nature as to
prejudice the party, the court will, in general, grant a motion to strike it out
of the record. Of this nature would be prejudicial hearsay. 16 The same
course may properly be followed where the evidence is irrelevant. 17 The fact
that the probative force of evidence is seriously impaired by cross-examina-
tion ls or in some other similar way furnishes no ground for striking it out.
6. 1 Chamberlayne, Evidence. 386. 11. Infra. 672.
7. Union Pac. R. Co. v. Field, ( U. S. 1905) 12. Wolf v. City Ry. Co. (Or. 1907), 91
6!) C. C. A. 536, 137 Fed. 14. Pac. 460.
8. Hale v. Hale, 32 Pa. Super. Ct. 37 13. 1 Chamberlayne. Evidence, 387.
(1<)06). 14. Fuller v. Ann Arbor R. Co, (Mich.
9. Marcum v. Hargis, 31 Ky. Law Rep. 1905) 12 Detroit Leg. N. 348, 104 N. W. 414.
1117, 104 S. \V. 693 H907). 15- 1 Chamberlayne, Evidence, 388.
10. Blanohard v. H'olyoke St. Ry Co.. 186 16. Skinner Mfg. Co. v. Dowville, 54 Fla.
Mass. 582. 72 X. E. 94 (1904). Blanchard v. 251, 44 So. 1014 (1907).
Holyoke >t. Ry. Co., 186 Mass. 582. 72 X. E 17. Johnston v Beadle, (Cal. App. 1907)
94 (1904). Felsch v. Babb (Neb. 1904), 101 91 Pac. 1011.
N. W. 1011. 18. Platt v. Rowand, 54 Fla. 237, 45 ISo. 32
lOa. Infra, 859. ( 1907 ) .
183 PROTECT SUBSTANTIVE EIGHTS. 98
Nor will this course be adopted merely on the ground that the evidence is
insufficient.
Irresponsive-ness. Where an answer is irresponsive, either party may
move to strike it out. 20 But here, as in other cases where objection to the
reception of evidence is taken, the objecting party, to secure consideration in
an appellate court, will be required to obtain a ruling upon the question by
the trial judge. If the ruling is adverse to him, he may then except. 21
Objection must have been made to an obvious incompetent question if the
motion to strike out is to be urged as a matter of right. 22 But where the evi-
dence has been admitted without objection, the judge is under no obligation to
strike out cumulative testimony on the same point. 23 But this proceeds upon
the ground of waiver, in failing to assert a legal right at the proper time. If
nothing in the question appears objectionable, no rights are lost by failing to
object to it, if a motion to strike out is promptly made. 24 On a general objec-
tion and motion to strike out, if any part of the evidence is competent, the
motion will properly be overruled. 25
Where evidence is improperly admitted it may be withdrawn if the evidence
is not very material and the error corrected but if the evidence is of a material
character arid is calculated to affect the jury the withdrawal of the same from
their consideration would not heal the vice of its admission. 26
183. [Right to the Use of Reason] ; Withdrawal of Jury. 27 Where an argu-
ment 011 any point if conducted in the presence of the jury would tend to mis-
lead them, they may be required to withdraw. 28 The court is to judge, as a
question of administration, whether it be preferable, in the interests of justice,
to order such a withdrawal and have the same thing gone over by counsel in
his argument to the jury ; or, on the contrary, to expedite the trial 29 by having
the entire matter discussed in their presence in the first instance. Counsel
have no right to have the court adopt the latter course. 3 "
19. 1'latt v. Rowand, 54 Fla. 237, 45 So. 24. Johnston v. Beadle (Cal. App. 1907),
32 (1907). 91 Pac. 1011; Skinner Mfg. Co. v. Dowville,
20. Kramer v. llaeger Storage, etc., Co., 54 Fla. 351, 44 So. 1014 (1907).
108 X. V. Suppl. 1, 123 App Div. 316 (1908). 25. Platt v. Rowand. 54 Fla. 237, 45 So. 32
21. Sheldon v. Wright, 80 Vt. 298, 67 Atl. (1907) ; Darrin v. \Vhittingham, (Md. J.907)
807 (1907). In the taking of testimony the 68 Atl. 269; Galveston, etc., Ry. Co. v. Janert,
occasional ejaculation of the word " excep- (Tex. Civ. App. 1008) 107 S. W. 963.
tion " is in the nature of a running and un- 26. Andrews v. State. 64 Tex. Crim. Rep.
favorable comment on the proceedings, and 2, 141 S. \V. 220, 42 L. R. A. (-X S.) 747
nothing more. It raises no question for the (1911 i.
decision of the court and reserves nothing." 27. 1 Chamberlayne. Evidence, 389.
Sheldon v. Wright. 80 Vt. 298, 304 (1907) 28. Henrietta Coal Co. v. Campbell, 211 111.
22. fnira. Aughey v. Windrem, 114 X. W. 216. 71 X. E. 863 (1904).
1047 i 1908). Darrin v. Whittingham, 68 29. Jnfrn, 304 et se</.
Atl. 269 i 1907). 30. Rice v. Dewberry, (Tex. Civ. App. 1906)
23. Skinner Mfg Co. v. Dowville, 54 Fla. 93 S. W. 715.
251, 44 So. 1014 (1907).
99 RIGHT TO EEASON. 184-186
184. [Right to the Use of Reason] ; Preventing Irrational Verdicts. 31 As
is stated more at length elsewhere, 32 the justice presiding at a jury trial may
direct a verdict for either party, when a contrary finding could not, as a matter
of reason, be sustained by the evidence/ 53 The judge, being charged with the
duty of enforcing upon the jury the use of the reasoning faculty, may also set
aside a verdict which is irrational, either as a matter of logical 34 or legal 35
reasoning.
Actions' for a penalty follow the same rules. In such a case a verdict
against the defendant has been ordered. ' M
185. [Right to the Use of Reason] ; Directing Verdicts. 37 But a result
which it would be the administrative duty of the court to nullify as irrational
and therefore illegal by awarding a new trial, 38 the judge may properly look
upon as something which it is his administrative duty to prevent. He may,
therefore, intervene either on motion or sua sponte, at an earlier stage by
withdrawing the case from the jury and directing a verdict against one of the
parties/ 59
186. [Right to the Use of Reason] ; Relation to Grant of a New Trial. 40
As a verdict by a jury may properly be set aside by the presiding judge if
reason has not been exercised 41 and as a verdict will be directed where only
one conclusion is logically, i.e., legally permissible, 42 it may properly be said,
the test being the same, that where the court would be constrained to set aside
a verdict for a party complaining, it would be justified in directing a verdict
in his favor.. 43 It is stating the same proposition to say that a verdict will be
ordered when the evidence at the trial, with all the inferences which the jury
could justifiably draw from it, is so insufficient to support a verdict that were
it returned it would be set aside. 44 .
In jurisdictions, on the contrary, where new trials may be granted because
the verdict is against the weight or preponderance of the evidence, 45 a jury
cannot be ordered to return a verdict where there is enough evidence to warrant
31. 1 Chamberlayne, Evidence, 390. 37. 1 Chamberlayne, Evidence, 391.
32. Infra, 191 et seq. 38. Supra, 133.
33. Wilson v. Alcatraz Asphalt Co., 142 39. School Furniture Co. v. Warsaw School
Cal 1S2, 75 Pac. 787 (1904). Kelly v.- Ins. Dist., 122 Pa. St. 494 (1888).
Co., 126 111. App. 528 (1906). Young v 40. 1 Chamberlayne, Evidence, 392.
Chandler, 102 Me. 251, 66 Atl. 539 (1!06). 41. Supra, 133.
Harrison Granite Co. v. Pennsylvania R. Co., 42. Infra, 36.
145 Mich. 712, 108 N. W. 1081, 13 Detroit 43. Illinois Cent. R. Co. v. Bailey, 222 111.
Leg. X. (i31 (1906). Loper v. Somers. 71 N. 480, 78 N. E. 833 11906).
J. L. 657. 61 Atl. 85 (1905). Guild v. 44. Chicago Hardware Co. v. Matthews, 124
Pringle, 145 Fed. 312 (1906). 111. App. 89 (1905) -. Anderson v. Cumberland
34. Xw/mj. 36, Telephone & Telegraph Co., (Miss. 1905) 38
35. Supra, 36. So. 786 ; Cobb v. Glenn Boom & Lumber Co.,
36. Gilhreath v. State, (Tex. Civ. App. (W. Va. 1905) 49 S. E. 1005.
1904) 82 S. W. 807. 45. Supra, 133.
187-189 PROTECT SUBSTANTIVE RIGHTS. 100
them, as a matter of reason, in finding otherwise ; although the court fully in-
tends, the weight of the evidence being determined in his mind, that if the jury
return any other verdict than the one he is asked to order he will set it aside. 46
187. [Right to the Use of Reason] ; Relation to Motion in Arrest of Judg-
ment. 47 Where a defect exists in the declaration or similar pleading which is
of such a character as to be ground for a motion in arrest of judgment, it is
proper to move to withdraw the case from the jury on the same ground. 48 On
such a motion based on a defect in the declaration, matters of evidence and.
facts proved cannot be considered. 49
188. [Right to the Use of Reason] ; A Matter of Law. 50 As the duty of
the jury is to reason correctly, and as it is the substantive right of the party to
insist that this reasoning be exercised, 51 a ruling as to what is or is not ra-
tionally possible for the jury to do is, in reality, ruling on a matter of law. 52
In other words, whether there is any evidence upon which the jury could rea-
sonably determine as to the truth of a matter in issue is a question of law for
the court; 53 if there is, it must be left to them. 54 But, in general, a matter
about which there is no controversy in the evidence should not be left to the
jury. 55
The question is however complicated by the fact that the jury is not bound
to believe uncontradicted evidence admitted without objection. 56
189. [Right to the Use of Reason] ; General Rules. 57 It is not necessary
to submit a cause to a jury, unless there is evidence which will warrant a
verdict in favor of the party producing it. u8 As a rule, where the evidence
46. yew York. Marshall v. City of Buffalo, Tennessee. Norman v. Southern Ry. Co.,
176 N. Y. 545, 68 X. E. 1119 (1903). Lehew 104 S. W. 1088 (1907).
v. Hewitt, 138 N. C. 6, 50 S. E. 459 (1905). United Mates. Minnesota & D. Cattle Co.
Weir v. Seattle Electric Co., 41 Wash. 657, v. Atchison, T. & S. F. Ry. Co., 147 Fed. 463,
84 Pac. 597 (1906). 77 C. C. A. 607 (1906).
47. 1 Chamberlayne, Evidence, 393. 53. Universal Metal Co. v. Durham & C. R.
48. Grace & Hyde Co. v. Sanborn, 124 111. Co., 145 X. C. 293, 59 S. E. 50 (1907) : Bos-
App. 472 (1906) [affirmed in 225 111. 238, 80 well v. First Nat. Bank, (Wyo. 1907) 92 Pac.
N. E. 88]. 624 [rehearing denied 93 Pac. 661].
49. American Car & Foundry Co. v. Hill, 54. Pigeon v. Lane, 80 Conn. 237, 67 Atl.
226 111. 227, 80 X. E. 784 (1907) [affirming 886 (1907).
128 111. App. 176 (1906)]. See Rasco v. Jef- Illinois. Clark v. Chicago R., etc., Ry.
ferson, (Ala. 1905) 38 So. 246. Owens v. Co., 231 111. 548, 83 X. E. 286 (1907). Paine
Lehigh Valley Coal Co., 115 111. App. 142 v. Kelley, 83 X. E. 8 (1907). Powers v.
(1904). Miller, 107 X. V. S. 960, 123 App. Div. 396
50. 1 Chamberlayne, Evidence, 394. (1908).
51. Infra, 179 et seq. 55. Keene v. Newark Watch Case, etc.
52. Illinois. Libby, McNeil & Libby v. Co., 188 N. Y. 598, 81 N. E. 1167 (1907) [a/-
Banks, 209 111. 109. 70 N. E. 599 (1904) [af- firming judgment, 98 N. Y. S. 68, 112 App.
firming 110 111 App 330 (1903)]. Div. 7 (1906)].
Maryland. Baltimore & O. R. Co. v. Belin- 56. Collins v. Casualty Co., Mass. 112 N. E.
ski, 67 Atl. 249 (1907). 634, L. R. A. 1916 E 1203 (1916)
yorth Carolina. Campbell v. Everhart, 57. 1 Chamberlayne, Evidence. 395.
139 N. C. 503, 52 S. E. 201 (1905). 58. Lynch v. Englehardt, Winning, Davison
101 RIGHT TO REASON. 190,191
on material points is conflicting, a verdict cannot be ordered ; 59 unless, indeed,
although there is technically a conflict, the evidence on one side is of so con-
clusive a character that the court would set aside a verdict rendered in oppo-
sition to it. 00
190. [Right to the Use of Reason]; Scintilla of Evidence Not Sufficient. 01
It is not at the present day sufficient to prevent ordering a verdict that the
party against whom the ruling is asked may have been able to furnish some
little evidence in support of his contention. 02 The earlier law allowed the
jury to act if a scintilla 63 of proof were furnished ; and thfe same proposition
is still occasionally announced. 04 In general, however, it is well settled that
a scintilla is no longer sufficient. 05 It is, indeed, quite frequently said that a
verdict cannot be ordered if there is any evidence. 66 But this is not the real
meaning of those who announce the rule. It should be completed by adding
to the words " any evidence " the phrase " from which the jury might reason-
ably find in its favor." 67
191. [Right to the Use of Reason] ; Motion Equivalent to a Demurrer to
Evidence. 08 A motion to direct a verdict is in effect a demurrer to the evidence
of the opposing party; and in passing on the same the court should consider as
established all the facts proved and all inferences which can be logically and
reasonably drawn from the evidence submitted by the party against whom the
order is asked. 69
Mercantile Co., 1 Neb. (Unof.) 528, 96 N. W. least particle. The doctrine that where there
524 (1901). is any evidence, however slight, tending to
59. Wileox v. Evans & Pennington, 127 Ga. support a material issue, the case must go to
580, 56 S. E. 635 ( 1907) ; City of Chicago v. the jury, since they are the exclusive judges of
Jarvis, 226 111. 614, 80 X. E. 1079 (1907). the weight of the evidence. Black., Law
Hummer v. Lehigh Valley R. Co, 65 Atl. 126 Diet.
(1906). Reilly v. Troy Brick Co., 184 N. Y. 64. Louisville, H. & St. L. Ry. Co. v. Hall,
399, 77 N. E. 385 (1906). 29 Ky. Law Rep. 584, 94 S. W. 26 (1906).
Pennsylvania. Raymer v. Standard Steel 65. Gipe v. Pittsburgh, etc., Ry. Co., 82
Works, 216 Pa. St. 101, 64 Atl. 902 (1906). N. E. 471 (1907). Cromley v. Pennsylvania
It is not within the province of the judge, on R. Co., 211 Pa. 429, 60 Atl. 1007 (1905).
a motion to withdraw a case from the jury, to West Virginia. Dye v. Corbin, 53 S. E.
weigh the evidence, and ascertain where the 14" (1906).
preponderance is, but his duty is limited I'nited States. New York Cent & H. R.
strictly to determining whether there is or is R. Co. v. Difendaffer, (111. 1903) 125 Fed.
not evidence legally tending to prove the fact 893.
affirmed. Woodman v. Illinois Trust & Sav- 66. Frank Parmelee Co. v. Wheelock, 224
ings Bank, 211 111. 578, 71 N. E. 1099 (1904) 111. 194, 79 X. E. 652 (1906). Scofield'g
60. Harriss v. Howard, 126 Ga. 325. 55 S Adm'x v. Metropolitan L. Ins. Co., 79 Vt. 161,
E. 59 (1906). Dederick v Central R. Co.. 64 Atl. 1107 (1906).
65 Atl. 833 (1907). Clark v. Slaughter. 129 67. Hillsborough Grocery Co. v. .Leman,
Wis. 642, 109 X. W. 556 (1906). (Fla. 1906) 40 So. 680.
61. 1 Chamberlayne, Evidence. 396. 68. 1 Chamberlayne, Evidence. 397.
62. OfiFutt v. Columbian Exposition, 175 69. Gibson v. Fidelity & Casualty Co., 232
111. 472, 51 N. E. 651 (1898). III. 49, 83 N. E. 539 (1908).
63. A spark; a remaining particle; the
192,193
PROTECT SUBSTANTIVE EIGHTS.
192. [Right to the Use of Reason] ; Direction Against the Actor. 70 fre-
quently this power of the court is employed against the party having the burden
of proof on the issue, the actor. As was said in Ryder v. H ombwell, 11 and cited
with approval in later cases, 72 " There is, in every case ... a preliminary
question which is one of law, viz., whether there is any evidence on which the
jury could properly find the question for the party on whom the onus of proof
lies. If there is not, the judge ought to withdraw from the jury and direct
a nonsuit, 73 or verdict for the defendant, if the onus is on the plaintiff, 74 or
on the contrary direct a verdict for the plaintiff if the onus is on the defend-
ant." 75 The simplest situation which can be presented is where the actor
produces no evidence in support of his contention 7G or of a material portion
of it, 77 evidence so slight that no reasonable man could act in accordance with
it ; 78 or it appears without contradiction that a conclusive defense to it
exists: 79
193. [Right to the Use of Reason] ; Direction in Favor of Actor. 80 By a
parity of reasoning, where the party having the burden of proof produces to
the tribunal a case so completely proved, established by such credible witnesses,
and beyond the range of controversy to such an extent sl that the only rational
course for the jury to pursue would be to render a verdict in favor of it, or
where the actor proves a prima facie case and the nonactor introduces no evi-
75. Baxley Tie Co. v. Simeon & Harper,
1 Ga App 670, 57 S. E 1090 ( 19C7 ) : McCall
v. Herring, 118 Ga. 522, 45 b. E. 442 I 1903) ;
Crosby v. Wells, 73 N. J. L. 790, 67 Atl. 295
( 1907*) .
76. Jennings v Ingle, 73 N. E. 945 (1905) ;
La Rue v. Lee, 60 S. E. 388 ( 1908) .
Where one of several counts of a declara-
tion is unsustained by the evidence, the jury
may be instructed to disregard that count.
Portsmouth St. R. Co. v Feed's Adm'r, 102
Va. 662, 47 S. E 850 (1904).
77. Agnew v. Montgomery, (Neb. 1904) 99
,\. \V. 820 )
78. Illinois. Continental Nat Bank v.
Metropolitan Nat. Bank, 107 111. App. 455
(1903).
79. Peckinpaugh v. Lamb, (Kan. 1905) 79
Pac. 673 (modification).
80. 1 Chamberlayne, Evidence, 399.
81. McKnight v Parsons, (Iowa 1907) 113
N. W. 858.
Evidence which a party cannot dispute
because it is supplied by his own witnesses
has for many purposes, the same effect as evi-
dence which cannot he disputed because it ia
true. American, etc.. Bank v. New York, etc.,
Co., 148 N. Y. 698, 43 N. E. 168 (1896).
Hanaen v. Kline, 113 N. W. 504 (1907):
Avery v. Union Pac. R Co., 85 Pac.
600 I 1901!) ; Acker, Merrall & Condit Co. v.
McGaw, 106 Md. 536, 68 Atl. 17 (1907);
Underfeed Stoker Co. v. Hudson, etc., Brew-
ing Co., 70 N. J. L. 649, 58 Atl. 296 (1904) ;
Hirsch v American Diet. Tel. Co., 90 N Y.
Suppl. 464 (1904).
Wisconsin. McCune v. Badger, 105 N. W.
667 (1905).
70. 1 Chamberlayne, Evidence. 398.
71. L. R. 4 Ex. 32 (necessaries for an in-
fant) (186S).
72. Bridges v North London Ry. Co., L. R.
7 H. L. 218 (1874).
73. See also Brooker v. Scott, 11 M. & W.
67 (1843) (necessaries for an infant).
74. Illinois. Hartlctt v. Wabash R. Co.,
220 111. 163. 77 N. E. 96 ( 190(i I .
Maine. Young v. Chandler, 102 Me. 251,
66 Atl. r>.'H> (1906); Romaine v. New York,
N. H. & H R. Co.. 86 N Y. Suppl. 248, 91
App Div. 1 (1904) ; Comm'rs. of Marion Co.
v ( lark. 94 T. S. 2'<8. 284 (1876).
Certain States forbid the court to exercise
this function. The ruling is based upon a
misconception of the province of the jury.
Dalton v Poplar Bluff, 173 Mo. 39, 72 S. W.
1068 (1902).
103 EIGHT TO REASON. 194, 195
deuce whatever 82 the court may direct the jury to find in accordance with the
evidence submitted to them. 83
In a criminal case the court is not at liberty to order a verdict for the prose-
cution. 84
194. [Right to the Use of Reason] ; Time for Making Motion. 85 When the
original case of the actor is closed, the uouactor may test its sufficiency by a
request to direct a verdict in his own favor.* On the other hand, the court
may postpone the decision of the motion until all the evidence is introduced
by both sides. 8 ' The matter is one of administration; 88 largely concerned
at all times, with the expediting of trials. 89 It is too late to move for a ver-
dict after the stage of argument and among the requests for rulings and in-
structions by the court to the jury. 90
195. [Right to the Use of Reason]; Direction on Opening^ l An adminis-
trative device of occasional value in expediting causes is for the presiding judge
to rule, sua sponte, or on request, at the close of the opening to the jury made
by the actor's counsel, that the jury could not, on these facts, find in his favor.
Great care must, however, be exercised by the court in seeing that the course
does not foreclose the party from the use of any probative fact or argument.
If, after all suitable administrative precautions against injustice have been
taken, the court still feels that the jury could not rationally find in favor of
the actor's contention, the judge may properly order a verdict against the
actor on his own statement of it. But it must affirmatively be made plain that
the actor has no case. 92
82. Village of Franklin Park v. Franklin, 85. 1 Chamberlayne, Evidence. 400.
231 111. 380, 83 X. E. '214 (19(17). 86. Grooms v. Xeff Harness Co., (Ark.
\ew Jersey. United States Fidelity & 19<>6) 'J6 S. W. 135. See also Crean v Mc-
Guaranty Co. v. Donnelly, Gl Atl 445 (1905.) Mahon, 106 lid. 507, 68 Atl. 265 (1907).
-Vetr York. Harding v. lionian Catholic 87. White v. Wilmington City Ry. Co.,
Church of St. Peter, 188 X. V. 631, SI X. E. i.Del. Super 1906) 63 Atl. 931.
1165 (1907) [judgment affirmed, 99 X. Y. 88. Gates v. Union R. Co., 27 R. I. 499, 63
Suppl. 945, 113 App Div. (5*5 .1906)]. Atl. 675 (1906).
83. Georgia. Williams Mfg. Co. v. Warner 89. Infra, 544 et ser/.
Sugar Refining Co., 125 Ga. 408, 54 S. E 95 90. Ewen v. Wilbor, 208 111. 492, 70 X. E
(1906). 575^(19041 [affirming 99 111. App. 132
Illinois. Marshall v. Gross, etc., Co., 184 (1001)]: Foy v. City of Winston, 135 X. C.
Ill 421, 56 X. E. 807 (1900). 439, 47 S. E. 466 (1904).
\ew York. Harding v. Roman Catholic Suggestion by Court. The judge may per-
Church of St. Peter. 99 X. Y. Suppl. 945, 113 ceive that, assuming everything the party
App Div. 685 (1906). asking relief alleges in his pleadings to be
i'nited States. Leach v Burr. 1R8 U. S. true, there is no aspect of the matter in which
, r >iO. 23 Sup. 393 (1902). See contra. Annis- he is entitled to recover. If so. the court
ton. etc, Bank v. Committee. 121 X C. 106, may surest the difficulty, sua sponte and
109, 28 S. E. 134 i 1897) . entertain a motion to direct a verdict Robin-
84. People v. Warren, 122 MHi 541. SI son Humphrev Co v Wiloox County. 129 Ga.
N. W. 360 (and cases cited) (1^99) : Sparf v. 104, 58 S. E. 644 (1907).
U S, 156 U. S. 51. 177, 15 Sup. 273 (1894) 91. 1 Chamherlayne. Evidence. 401
But see contra, Com. v. Alagee, 12 Cox Cr. 92. Brown v District of Columbia. 29 App.
549 (1873) D. C. 273 (1907). Where in an action for
196-198 PROTECT SUBSTANTIVE EIGHTS. 10-i
196. [Right to the Use of Reason] ; Party Moving May Be Required to Rest. 93
By an analogy to the rule employed by the court in dealing with demurrers
to evidence, 94 a party moving that the action be withdrawn from the jury
should rest his case, introducing no evidence. It was early contended that by
introducing evidence on his own behalf a party waived the right to make a
motion to withdraw. 95 While this has not prevailed generally, 110 time of pass-
ing upon a motion to withdraw from the jury is clearly a question of adminis-
tration, and the presiding judge may decline to act on such a motion until
after the entire evidence has been introduced, 97 unless the party moving shall
be willing to rest his case, foregoing the privilege of introducing evidence on
his own behalf. 98
197. [Right to the Use of Reason] ; Nominal or Actual Verdicts. 99 If the
reason for directing a verdict against the actor be the weakness of his case, the
proper verdict is one of nonsuit l or default ; especially where the nonactor
produces no sufficient evidence in support of his own contention. 2 On the
other hand, should the result be due to the affirmative strength of the nonactor's
case, he is entitled to a verdict in his own favor. '
198. [Right to the Use of Reason] ; Effect of Waiver. 3 Failure to aise a
question as to the sufficiency of the evidence to warrant a verdict for a par-
ticular party before the evidence is closed amounts to a waiver of the objec-
tion. 4 A previous request to direct a verdict does not preclude a party from
requesting to have the case submitted to the jury ; 5 but such a course may
constitute a waiver of the motion to withdraw. 6 A motion to direct a verdict
wrongful death, the opening statement of 97. Kaley v. Van Ostrand, (Wis. 1908)
plaintiff's case by her counsel was defective 114 N. W. 817; Robertson v. Perkins, 129 U.
only in that it fell short of stating facts suf- S. 233 (1888).
ficient to warrant plaintiff's recovery, but no 98. Columbia, etc., Ry. Co. v. Hawthorne,
fact indicating a complete defense, or show- 144 U. S. 202 (1891).
ing affirmatively that there was no cause of 99. 1 Chamberlayne, Evidence, 403.
action, \vas stated, it was error to direct a 1. Equitable Mfg. Co. v. J. B. Davis Co.,
final judgment on the merits for defendant on 130 Ca. 67, 60 8. E. 262 (1908).
such statement. Redding v. Puget Sound Iron 2. Rothenberg v. Rosenberg, 108 N. Y.
& Steel Works, 3(5 \\ash. 642, 79 Pac 308 Suppl. 678, 57 Misc. 653 (1908).
(1905). 3. 1 Chamberlayne, Evidence, 404.
93. 1 Chamberlayne, rvid-nce, 402. 4. El well v. Roper, 7: N. H. 585, 58 Atl.
94. Supra, 59 et se</. 507 (1904). This has been put into the
95. Barahask v. Rabat, 91 Md. 53, 46 Atl. somewhat misleading form of saying that a
3.'!" (1900); State v. Groves. 119 X. C. 822, failure to move to dismiss the complaint at
824, 25 S. E. 819 (1896) ; Purnell v Ry Co., the close of plaintiff's case, or of the whole
122 N. C. 832. 835, 29 S. E. 953 (1898). But case, is an admission that there is a question
see North Carolina Stat. 1899. c. 131. of fact. Rapp v. Hutchinson Stair Elevator
96. Stephen v. Scott, 43 Kan. 285 M890). Co., 87 N. Y. Suppl. 459 (1904).
*' The defendant, by putting in its evidence 5. Seddon v. Tagliabue, 98 N. Y. Suppl.
took the chance of aiding the plaintiffs case: 236, 50 Misc. 156 M906).
but it is not thereby deprived of the right to 6. Chicago L'nion Traction Co. v. O'Donnell,
ask the court to direct a verdict on all of 113 111. App. 259 (1904) [affirmed in 211 111.
the evidence." Weber v. Kansas City, etc., 349, 71 N. E. 1015].
Co., 100 Mo. 194 (1889).
105 RIGHT TO REASON. 199-201
in favor of the moving party may, until acted upon, be itself withdrawn. 7
Where the judge has acted on the motion, it is then too late to withdraw it and
ask fo v a jur\ trial. 8
199. [Righ' to the Use of Reason] ; Action of Appellate Courts. 9 The
order directing a verdict being a ruling on matter of law 10 the appellate court
may pass upon it as upon other questions of a legal nature. 11 Where it has
been ruled by the trial court that there is no sufficient evidence to support a
verdict for the actor and the appellate court differs in opinion, error may be
declared.
200. [Right to the Use of Reason] ; Effect of Rulings on Evidence. 12 The
irrationality of finding in favor of a given contention may have been caused
by the fact that the presiding judge has made rulings which have had the
effect of excluding important portions of the party's proof. But in an appel-
late court these rulings on the admissibility of evidence are themselves open,
in most cases, to review. An order, holding erroneous a rejection of impor-
tant evidence, may involve in it the ruling of the trial court directing a ver-
dict against a contention which was rendered irrational, i.e., illegal of adop-
tion, as the basis of the court's action by reason of the rejection. The trial
judge may anticipate the action of the appellate court by refusing to consider
in ordering a verdict any evidence already improperly admitted. 13
201. [Right of the Use of Reason] ; Judge Sitting as a Jury. 14 W T here a
judge sits as a jury for the determination of issues of fact, a party is as clearly
entitled to the use by him of the reasoning faculty as he would be entitled to
insist upon its exercise by a jury. It is not, for example, reaonable that a
judge so sitting should reject evidence upon a material issue on the ground
that it is cumulative, 15 and then deciding that issue in favor of the other side.
Where but one rational conclusion can be drawn from the evidence a party
may properly move that a verdict be directed by the judge in favor of that re-
sult, as he might do in a jury case. 16 If there be such evidence that a finding
7. Cravath v. Baylis, 99 N. Y. Suppl. 973, 10. Supra, 188.
113 App. Div. 666 (1906). 11. Sunderland v. Cowan, (Md. 1907) 67
8. Solomon v. Levine, 54 Misc. (N. Y.) 270, Atl. 141.
104 N. Y. Suppl. 443 (1907). Counterclaim. 12. 1 Chamberlayne, Evidence, 406.
Where defendant pleaded a countercFaim, 13. Townsend v. Greenwich Ins. Co., 178
and on the conclusion of plaintiff's evidence N. Y. 634, 71 X. h. 1140 (1904) [affirming
procured an order directing a verdict for de- 86 N. Y. App. Div. 323, 83 N. Y. Suppl. 909
tendant on plaintiff's cause of action, he is (1903)].
not entitled thereafter to introduce evidence 14. 1 Chamberlayne, Evidence, 407.
of his counterclaim, as the order concluded the 15. Brown v. Cohen, 96 N. Y. Suppl. 116
trial, and defendant by moving for a directed (1905).
verdict waived a hearing on his counterclaim. 16. Foskett, etc., Co. v. Swayne, 70 Conn.
Miller v. McGannon, (Neb. 1907) 113 N. W. 74, 38 Atl. 893 (1897); Lee v. Callahan, 84
170. N. Y. Suppl. 167 (1903).
9. 1 Chamberlayne, Evidence, 405.
202-204 PROTECT SUBSTANTIVE RIGHTS. 106
of fact might rationally have been made in either way, it is error to dismiss,
summarily, the action. 1 ' Where there is a conflict in the testimony, the court
must judge, of necessity, as to the credibility of the witnesses. 18
202. Right to Judgment of Court or Jury. ia A party has a right under
the substantive law to insist not only that each branch of the mixed tribunal
of judge and jury shall exercise correct reasoning in connection with his case
that all their acts shall be reasonable or reasoned acts ; 2o his right extends
to a demand that the reasoning faculty shall be applied to any particular por-
tion of his case by that part of the tribunal to which the law has assigned its
consideration. In the enjoyment and exercise of this right it is the adminis-
trative duty of the presiding judge to protect the litigant.
203. [Right to Judgment of Court or Jury] ; Performance of Functions by
Judge. 21 A party is entitled to insist upon a discharge by the presiding jus-
tice of his customary judicial functions. It is the litigant's right to ask that
the court pass upon the competency of evidence. 22 The judge, therefore, will
exercise his duty of making preliminary findings of fact; he will not delegate
this power to the jury. Nor will he, in general, so discharge his administrative
duties as to leave questions of law to them. 2:! So the construction of a written
contract cannot properly be left to the jury. 2 ^ Still, where no difference of
opinion can well arise as to the meaning of the rule of law, no serious adminis-
trative error has been committed where the jury are referred to the law rather
than directed as to it. Tt is not error, therefore, when an ordinance has been
duly proved, and its terms are plain, for the court to charge the jury that they
are to determine what the ordinance is, and whether it has been violated. 25
204. [Right to Judgment of Court or Jury]; Waiver. 26 The right of in-
sistence upon discharge of functions by the appropriate branch of the tribunal
may be waived, either expressly, or by conduct. 2 '
17. Ness v. March. (Minn. 1905) 104 N. W. 20. Xupra, 179 et seq.
242; Weisberger v. Martin, 86 X. Y. Suppl. 21. 1 Chamberlayne, Evidence, 409.
115 (1904). Such a ruling does not amount 22. Com. v. Culver, 126 Mass. 464, 466
to a withdrawal by the judge from himself (1879); Bartlett v. Smith, 11 M. & W., 483
as a jury of any portion of the evidence in the ( 1843 ) .
case. Kansas City ex rel. Neill v Askew, 23. Chicago, etc.. Ry. Co. v Walker, 127
105 Mo. App. 84, 79 S. \V. 483 (1904). In an 111. App. 212 (1906) ; Outhouse v. Baird, 106
action tried to the court, it has no right to JN. Y. S. 246, 121 App. Div. 556 (1907) ; Trace-
dismiss the same without findings on the well v. Wood, County Court, , 52 S. E.
ground that plaintiff has failed to establish 185 (1905).
a cause of action, except where the evidence 24. Standard Mfg. Co. v. Slaughter, 122 111.
for plaintiff would not have justified findings App. 479 (1905)
in his favor. Ness v. March, (Minn. 1905) 25. Thomasson v. Southern Ry., 72 S. C.
104 N. W. 242. 1, 51 S. E 443 (1905).
18. Miller v. Piatt, 33 Pa. Super. Ct. 547 26. 1 Chamberlayne, Evidence, 410.
(1907). 27. Thus, for example, the right to treat
19. 1 Chamberlayne, Evidence, 408. the question of contributory negligence aa one
107 RIGHT TO JURY. 205-207
205. [Eight to Judgment of Court or Jury] ; General Right to Jury Trial ;
Witnesses not Permitted to Reason. 28 It is an essential part of this right to
insist upon performance of judicial function by the appropriate branch of the
mixed tribunal that the judge should not only protect his own province of
judging from invasion by the jury and himself refrain from interfering, by an
extension of his own province, from invading -the field of the jury's judicial
action ; he is also required to protect his own reasoning function and that of
the jury from invasion by the exercise on the part of witnesses of their reason-
ing faculties their "opinions," so-called. It is, therefore, within the scope
of the present principle of administration that, except in case of reasonable
necessity, the province of the jury in drawing the final inferences of fact should
not be invaded by the inference, conclusions or judgment of witnesses. 29
206. [Right to Judgment of Court or Jury] ; A Strongly Entrenched Right. 30
Entirely apart from this principle of administration, which forbids wit-
nesses to reason, except so far as is necessary, and, in a sense, behind and
above it, stands the substantive right of a litigant to a trial by jury. Within
its appropriate scope, few of the rights of a litigant are so strongly entrenched
in the substantive law. The original conception of the right to a trial by jury
is of ancient date and a matter of gradual evolution, in which no distinct steps
are traceable. 31 The right was claimed and conceded prior to Magna Charta, 32
and it was confirmed, as is commonly supposed, by that famous historical docu-
ment. 33 The American colonists took it from England as the palladium of
the liberties of Englishmen. 34
207. [Right to Judgment of Court or Jury] ; Federal Constitution. 35 The
provisions of the Constitution of the United States relating to the right of trial
by jury, extend only to common law actions in the federal courts. 36 The consti-
tutional guaranty does not apply to causes in equity or admiralty ; 37 or af-
fect proceedings in the state courts. 38 The interpretation limiting the right
of law is waived where the defendant has 34. Denver v. Hyatt, 28 Colo. 129, 63 Pac.
caused such question to be submitted to the 4li (J900) ; McHae v. Grand Rapids, etc., R:
jury as one of fact. Chicago City Ry. Co. v. Co., 93 Mich 399, 53 X. W. 561, 17 L. R. A.
Nelson, 116 111. App. 609 (1904) 750 (1892).
28. 1 Chamber lay ne, Evidence, 411. 35. 1 Chamberlayne, Evidence, 413-418.
29. Infra, 672 et seq. 36. The courts of the United States include,
30. 1 Chamberlayne, Evidence, 412. however, as the term is used in this connec-
31. Michigan. McRae v. Grand Rapids, tion, those of the District of Columbia. Capi-
etc, R. Co, 93 Mich. 399, 53 N. W. 561, 17 tal Traction Co. v. Hof, 174 U. S. 1, 19 Sup.
L. R. A. 750 (1892). St. 580, 43 L. ed. 873 (1898).
\ew Jersey. Brown v. State, 62 N. J. L. 37. Home Tns. Co. v. Virginia-Carolina, etc.,
666, 42 Atl. 811 (1899). Co, 109 Fed. 681 (1901) : Motte v. Bennett,
32. People v. Harding, 53 Mich 48, 481, 17 Fed. Cas. No. 9,884, 2 Fish. Pat. Cas. 642
18 N W. 555, 19 N. vv. 155, 51 Am. Rep. 95 (1S49).
(1884) 38. Foster v. Jackson, 57 Ga. 206 (1876).
33. Bron-n v. M:>tp. ft-2 V J. L. 666. 42 Atl. \ew York Jn re Newcomb, 18 N. Y.
811 , is-Hi' . Pv,>"-.m Inry Tr 24: 4 Black- Suppl 16 i 1*91) : Hall v. Armstrong. 65 Vt.
stone Comm. 349 421, 26 Atl. 592, 20 L. R. A. 366 (1893);
208,209
PROTECT SUBSTANTIVE RIGHTS.
108
so guaranteed as confined to cases where a jury might have been claimed at
common law, has been adopted in the federal as well as in the state courts. 39
Such provisions do not, in the least, abridge the right of the states to deal with
the question of trial by jury as they may see tit. 40
The term "jury," as used in the Federal Constitution, is the common law
petit jury of twelve. Providing a jury of a smaller number, e.g., six, 41 is
not a compliance with this provision.
208. [Right to Judgment of Court or Jury] ; State Constitutions. 42 In all
state constitutions the right to a trial by jury is regarded as existing and the
constitution purports only to forbid making change. The fundamental rule
is that where the right existed to a trial by jury at the time of the adoption of
the constitution, it exists at the present time, 43 and not otherwise. 44
209. [Right to Judgment of Court or Jury] ; Scope at Common Law. 45 At
common law the function of the jury is confined to an issue. 46 The right to a
trial by jury was, as a rule, restricted to actions at law in which there was an
issue of fact raised by means of pleadings. 47 In actions at law in contract,
tort, replevin, real actions, 4 ** and the like, where the use -of a jury was cus-
tomary at common law, the right is, as a rule, secured to litigants by American
constitutions or other statutes, state or federal.
Venue. Trial by jury means trial by jury in the county where the alleged
offense was committed. 49
Court May Allow Jury Trial. That the judge may, in exercise of his
Pearson v. Yewdall, 95 U. S. 294, 24 L. ed. 436
(1877).
39. The right io trial by jury does not
extend to consular courts. In re Ross, 140 U.
S. 453, 11 Sup. Ct. 897. 35 L. ed. 581 [af-
firming 44 Fed. 1S5 ( 1890) ( 1891 ) ] ; but does
apply to criminal cases, Bettge v. Terr., 17
Okl 85, 87 Pac 897 <M)06): and to cases
removed from the State courts to the Federal
courts, Phillips v Moore, 100 U. S. 208, 25
L. ed. 603 (1879). It does not apply how-
ever to special proceedings which did not
exist at common law as the exportation of
Chinamen, U. S. v. Ngum Lun May. 153 Fed.
209 (19071.
40. Keith v Henkleman, 173 Til. 137, 50
N. E. 692 (1898) : Shaw v. Silverstein, 21 R.
I. 500, 44 Atl. 931 (1899).
United Mates. Pearson v. Yewdall, 95 U.
S. 294, 24 L. ed. 436 i 1877).
41. Oius v. United States, (Alaska 1905)
141 Fed. 956, 73 C C. A. 272.
42. 1 Chamberlayne, Evidence, 419, 420.
43. East Kingston v. Towle, 48 N. H. 57,
97 Am. Dec. 575, 2 Am. Rep. 174 (1868).
Pennsylvania. Rhines v. Clark, 51 Pa. St.
96 (1865)
44. People v. City of Alton, 233 111. 542, 84
N. E. 664 (1908).
45. 1 Chamberlayne, Evidence, 421, 423.
46. .S'upm, 121.
47. Pennsylvania. Clone v. ArletTi, 162
Pa. St. 550, 29 Atl. 862 (1894).
Xouth Carolina. Gregory v. Ducker, 31
S. C. 141, 9 S. E. 780 (1889).
48. Lee v. Conran, 213 Mo. 404, 111 S. W.
1151 (1908) (alluvial deposits.)
Compulsory References. The judicial ma-
chinery at the time of the adoption of various
state constitutions included a provision for
the ordering of a compulsory reference where
there is a Ions and complicated account.
Such an order, therefore, does not violate the
right to trial by jury. Roughton v. Sawyer,
(X. C. 1907) 56 S. E. 480; Smith v. Kunert,
(X. D. 1908) 115 N. W. 76.
49. People v. Brock, 149 Mich. 464, 112 N.
W. 1116, 14 Detroit Leg. N. 506 (1907).
109 RIGHT TO JURY.
administrative powers, employ a jury in cases where such a trial cannot be
claimed as of right, is undoubted. 5 "
210. [Right to Judgment of Court or Jury] ; Judicial Powers Reserved. 51
The power of the presiding judge to set aside verdicts, 52 order nonsuits 3:! or
other verdicts, 54 award sentence 55 and perform the other functions of his judi-
cial office, are not, in the absence -of express provisions, 51 ' affected by these
enactments regarding jury trial.
The }>ower of Ihe cowt to perform its ordinary common law judicial func-
tions, e.g., receive pleas of guilty, 57 determine the nature of the offense thus
admitted. 5 * instruct jury as to grades of crime, 59 and the like. 00 is not affected
by the constitutional guaranty of a jury trial. Such a right is not violated
because few of the same race as the accused were put on the jury. 61 No right
to a jury trial is infringed by permitting the judge, rather than the jury, to
determine on the punishment for crime." 2
The riyht of an appellate court to order a lower court to impose a lesser
sentence than that of which the accused stands convicted is not inconsistent
with a right to trial by jury. Such a court may lawfully, for example, reduce
a conviction of murder in the second degree to one of manslaughter.' 53
211. [Right to Judgment of Court or Jury] ; Criminal Cases. 04 A person
cannot be punished either by fine, imprisonment or committal to an institu-
tion for reformatory purposes, 65 without a trial by jury in any case where,
at common law, a person so accused would have had a right to claim a jury. 06
50. McLean v. Tompkins, IS Abb. Pr. 24 62. State v. Eubanks, 199 Mo. 122, 97 S. W.
(18.57.1 876 (1906).
51. I Cliamberlayne, Evidence, 424-428. 63. Darden v. State, 80 Ark. 295, 07 S. W.
52. Supra, $ 133 et seq. 449 (1906).
53. Bohn v Pacific Electric Ry. Co. (Cal. 64. 1 Cliamberlayne, Evidence, 426-428.
App. l!>07) 91 Pac. 11.5; Xew England Trust 65. Pugh v. Bowden. 54 Fla. 31>2, 45 So. 499
Co. v. Boston Elevated Ry. Co., 181 Mass. 223, (190?). The power to commit an infant to
"t't X K. 7(59 (1906). a reformatory institution has. however, been
54. Tilley v. Cox, 119 Ga. 867. 47 S. E. 219 held to be not so much in the nature of a
(1904i : (tunn v. Union R. Co., 27 R. I. 320, criminal as of an equitable nature. Aceord-
62 A. 118 ; 190.5). iii'/ly the accused has no right to a jury trial.
55. Ex parte Brown, 39 Wash. 160, 81 Pac. Dinson v. Drosta. ( Ind. App. 1907) 80 X E.
552 (190.5). 32. Such a proceeding is not so much a trial
56. Reed & McCormiek v. Gold (Va. 1903). as an effort to prevent the necessity for one.
45 S. E. 86^ (hear demurrers to evidence). Accordingly, a jury is not required. Com v.
57. Hoilibaugh v. Hehn, (Wyo. 1905) 79 1-isher. 2*13 Pa. 48. 62 A. 19<< (190.5): State
Pac. 1044. v. Packenham, 40 Wash. 403, 82 Pac. 597
58. People v. Chew Lan Ong, 141 Cal. 550, (1905).
75 Pac 186 (1904). 66. Hughes v State. 29 Ohio Cir. Ct. R 237
59. State v. McPhail. 39 Wash. 199. SI Pac. (1907). It has been held that any statute.
683 (1905). which subjects an individual to a greater
60. Barry v. Tniax. (N. D 1904) 65 L. R. punishment for crime without the verdict of a
A. 762, 99 N. W. 769 (order change of jury than it was understood at the time of
venue). the adoption of the state constitution could
61. Miera v. Territory, (N. M. 1905) 81 be thus inflicted, is void. Wilmarth v. King,
Pac. 586. 74 X. H. 512, 60 Atl. 889 (1908).
212-215 PROTECT SUBSTANTIVE RIGHTS. 110
As may be seen elsewhere, 67 the legislature may provide otherwise in case of
misdemeanors and minor offenses." 8 But unless it has seen fit to do so, the
right attaches in all such instances. 60
212. [Right.to Judgment. of Court or Jury] ; Waiver Forbidden. 711 The de-
fendant is not at liberty to waive such a right.' 1 80 strong a course is, how-
ever, intended only for the protection of the accused in cases of serious felony.
He may effectively make such waiver in cases of misdemeanors, minor offenses, 72
or the like. T;!
213. [Eight to Judgment of Court or Jury] ; Incidental Hearings. 74 The
jury are not concerned with hearing's prior, incidental or subsequent to the
trial of the issue, as in case of motions 7r> or of proceedings following the
judgment. TC
214. [Right to Judgment of Court or Jury] ; Special Proceedings. 77 Where,
at common law, a party was entitled to a trial by jury, as in case of quo
warrant o,~ s contempt,' 9 writ of mandate, 8 " or proceedings of a similar nature,
he will be regarded as having the same right under the statutory or constitu-
tional provisions.
215. [Right to Judgment of Court or Jury] ; Statutory Proceedings. 81
Novel and special modes of trial such as the assessment of damages on condem-
nation proceedings, 82 the ascertainment of extra lateral mining rights, 88 de-
67. Infra, 219. pleadings, be triable by a jury, one has been
68. Bray v. State, (Ala. 1904) 37 So. 250; allowed. Drea v. Carrington, 32 Or. St. 595
Bowles v. District of Columbia, 22 App. D. C. (1877).
321 (1903) ; Kubach v State, 25 Ohio Cir. Ct. 76. Banning v. Taylor, 24 Pa. St. 289
K. 488 (1904). (1855); McGehee v. Brown, 3 La. Ann. 272
69. City of Vineland v. Denoflio, (N. J. (1848), settling exceptions-. Richardson v.
1907) 65 Atl. 837. City of Centerville, (Iowa 1908) 114 N. W.
70. 1 Chamberlayne, Evidence, 427. 1071 (attorney's fee) ; P'orrester v. Boston &
71. State v. Rea, 101 N. W. 507 (1904) ; M. Consol. Copper & Silver Min. Co., 29 Mont.
Jennings v. State, 114 N. W. 492 (1908). 397. 74 Pac. 1088 (1904).
72. Georgia. Moore v. State, 124 Ga. 30, 77. 1 Chamberlayne, Evidence, 432.
52 S. E. 81 (1905) ; Jacobs v. People, 218 111. 78. Metz v. Maddox, 189 X. Y. 4(i(t. 82
500, 75 X. E. 1034 (1905). Simmons v. N. E. 507 (1907) [order reversed, 105 X. V.
State, 75 Ohio St .S4fi. 7!) X. E. 555 (1906). S. 702]. A right to a jury may be claimed
73. Otto v. State (Tex. Cr. App. 1905) 87 on an issue of fact. Louisiana & Xorthwcst
S. W. 698 (Local Option Law). ee U. S. R. Co. v State (Ark. 1905) , 88 S. >V. 559.
Praeger, 149 Fed. 474 (1907), court martial; 79. O'Neil v. People, 113 ill. App. 195
Broadwell v. United States, 195 U. S. 65. Adv. (1904): Drady v. District Court of Polk
S. U. S. 826, 24 S. ft. 49 L. ed. (1904), sale County, 102 X. W. 115 (1905).
of oleomargarine: Kanorowski v. People, 113 80. Xelson v. Steele (Idaho 1906), 88 Par-.
111. App. 468 (1904), bastardy. 95.
74. 1 Chamberlayne, Evidence, 429-431. 81. 1 Chamberlayne, Evidence, 433.
75. Logansport, etc., R. Co. v. Patton, 51 82. Tngram v. Maine \Yater Co., 98 Me.
Ind. 487 (1875) : Pasour v. Lineberger, 90 N. 566, 57 Atl. 893 (1904); State v. Jones,
C. 159 (1884) : Banning v. Taylor. 24 Pa. St. 139 X. C. 613, 52 S. E. 240 (1905).
289 (1855). Where, however, a motion raises 83. TTickey v. Anaconda Copper Min. Co.
the same issue of fact as would, if stated upon (Mont 1905), 81 Pac. 806.
Ill EIGHT TO JURY. 216,217
structiou of intoxicating liquor intended for illegal sale, 84 and the like 8 ? may
or may not have the incident of a right to a jury trial, as the legislature may
determine.
216. [Right to Judgment of Court or Jury] ; In what Courts Right can be
Claimed.*' 5 Only in a "court " as that term was commonly understood at the
common law, when the provisions regarding jury trials were adopted, can such
a trial'be lawfully demanded at the present time. The fact that a body of men
as arbitrators'" are exercising judicial powers confers no right to a trial by
jury. A right to trial by jury, as usually limited, extends to all courts of
general jurisdiction and record which proceed according to the course of the
common law.* 8 Thus in courts of admiralty, 89 courts martial, 90 divorce courts, 91
equity 92 or probate 93 as no jury was employed at common law, so no just
claim to one on the part of a litigant exists under the constitutional guaranties.
217. [Right to Judgment of Court or Jury] ; Who May Claim Right. 94 The
condition of the scope of the right to a trial by jury, as it existed at the time
of the adoption of the constitution, limits not only the classes of actions in
which, in the absence of express regulation, the right may be claimed, and the
court in which such right may be exercised, but also the classes of legal persons
who may properly claim to exercise it. 95 For instance, where the state had,
at common law, no right to claim a jury trial in certain proceedings, none may
be properly demanded by it under the constitution. 915 Parties subsequently
joined to a pending suit have the same right to a jury trial as was enjoyed by
the primary parties. Such was the original rule. 97
Cities, town and other municipal corporations are not entitled to claim a
jury trial, as they possessed no right to one at the time of the adoption of the
constitution. 98
84. Kirkland v. State (Ark. 1904), 78 S. 92. Ross v. New England Mut. Ins Co., 120
W. 770. Mass. 113 (1876) : Tucker v. Edison Electric
85. Parmelee v. Price, 208 111. 544, 70 N. Illuminating Co. of New York, 184 N. Y 548,
E. 725 (in<)4) (liability of stock-holder); 76 N E.. 1110 (1906); Frank's Appeal, 59
Ingram v. Maine Water Co.. 98 Me. 566, 57 Pa. St. 190 (1868).
Atl. 80.S (1!)D4) (mills and mill dams). 93. Fay v. Vanderford, 154 Mass 498, 28
86. 1 Chamherlayne, Evidence. 434-446 N. E. 681 (1891); Frierson v. Jenkins, 75
87. Barker v. Jackson, 2 Fed. Cas. No 989, S. C. 471, 55 S. E. 800 (1906) : In re Welch,
1 Paine 559 (1826). 09 Vt 127. 37 Atl. 250 (1896).
88. Vauyhn v. Scade, 30 Mo 600 (1860) 94. 1 Chamherlayne. Evidence. 447-449.
89. Gillet v. Pierce, Brown Adm 553, 10 95. Harris v. Wood. 6 T. B Mon. 641
Fed. Cas. No. 5,437 (1875) ; Clark v. U. S., 2 (1828) -. Dowell v. Boyd. 3 Smedes & M. 592
Wash. (U. S.) 519. 5 Fed. Cas. No. 2837 (1844).
(1811). 96. In re New State House, 19 R I. 326.
90. Merriman v. Bryant. 14 Conn. 200 33 Atl. 448 (1895).
(1841); Hawson v. Brown. IS Me 216 97. Lacroix v. Menard. 3 Mart (N. S.)
(1^41): State v. Wasrener. 74 Minn 51S. 77 339. 15 Am. Dec. 161 (1825).
\ W 424. 73 Am. St Kep. 369, 42 L. R. A. 98. Stone v Charlestown. 114 Mass. 214
749 (ISOSi) (1*73): Kimhall v. Brid<rewater. 62 N. H.
91. Tiet/el v. Tietzel. 107 N. Y. Suppl 694 ( 1882) ; State v. Jersey City, 38 N J. L.
S7S. 122 App. Div. 873 (1907).
218-221 PROTECT SUBSTANTIVE RIGHTS. 112
The power of the legislature to extend the right to new classes of legal
persons cannot be doubted. <Ji)
218. [Right to Judgment of Court or Jury] ; Reasonable Limitations Per-
mitted; Demand. 1 The legislature may, with entire propriety, require a liti-
gant to avail himself of a right to jury trial under reasonable conditions. It
may, for example, properly be provided that one entitled to a jury trial should
specifically demand it, 2 within a limited reasonable time. Unless application
for a jury is made within the time specified, the right will be deemed to have
been waived/' A similar result may be prescribed by statute. 4 Failure to
claim in time as to certain of several defendants is not cured, as to them, by
a seasonable claim made by the others. 5
When one party seasonably claims a jury trial he preserves the rights of
both parties and cannot later, by withdrawing his claim or waiving it, prevent
a jury trial, unless his opponent also consents. 6
219. [Right to Judgment of Court or Jury] ; Minor Criminal Offenses. 7
Misdemeanors may, in the discretion of the legislature, be tried without a
jury. 8
220. [Right to Judgment of Court or Jury] ; Payment of Jury Fees. 9 It is
not unreasonable that a party who claims a jury should be required to deposit
a reasonable sum, not exceeding the amounts actually paid the jury, as a con-
dition precedent to the allowance of his right to a jury trial in a municipal 10
or other inferior court. The same requirement may be made on each continu-
ance of such a jury trial granted at the request of a party. 11
221. [Right to Judgment of Court or Jury] ; Restricted Appeals. 12 It is a
reasonable regulation upon the right to a jury trial that a court of first instance
259 (1876); Darlington v. New York, 31 Misc. (X. Y.) 614, 104 N. Y. Suppl. 867
M. Y. 164, 88 Am. Dec. 248, 28 How. (1907).
99. In re New State House, 19 R. I. 326, 6. Elmore v. New York City Ry. Co., 51
33 Atl. 448 (1895). Misc. (N. Y.) 675. 100 N. Y. Suppl. 1019
1. 1 Chamberlayne, Evidence, 450, 451. (1906); Allwortli v. Interstate Consol Ry.
2. Maddux v. Walthall, 141 Cal 412, 74 Co.. 27 R. I. 106, 60 Atl. 834 (1905).
Par 1026 (1903) : Miller v. Georgia R Bank, 7. 1 Chamberlayne. Evidence, 452, 453.
120 Ga. 17, 47 S. E 525 (1904): People v. 8. People v. Flaherty, 119 N. Y. App Div.
Halwig, 84 N. Y. Suppl. 221, 41 Misc. Rep 227 462, 104 X. Y. Suppl. 173 (1907).
(1903). 9. 1 Chamberlayne, Evidence. 454.
3. Hammond v. State (Ala. 1908), 45 So. 10. Williams v. Gottschalk, 231 111. 175,
654; Stafford v. State (Ala. 1908), 45 So. 83 X. E. 141 (1907) ($6): Humphrey v.
673; Mills & Williams v. Ivey, 3 Ga. App Eakley, 72 X. J. L. 424, 60 Atl. 1097 (1905)
557, 60 S. E. 299' (1908). [affirmed in 65 Atl. 1118 (1907)]; Cohen
4. Ross v. McCaldin, (107 N. Y. S. 381, v. New York City Ry. Co., 106 N. Y. Suppl.
123 App. Div. 13 (1907): Ettlinger v. Trus- 561, 121 App. Div. ,803 (1907) ($4.50 per
tees of Sailors' Snug Harhor, etc., 107 N. Y. S. day).
779, 122 App. Div. 681 (1907). 11. Cohen v. New York City Ry Co, 106
5. Spencer v. Adams Dry Goods Co., 54 N. Y. Suppl. 561. 121 App. Div 803 (1907).
12. 1 Chamberlayne, Evidence. 455.
113 RIGHT TO JURY. 222-224
should hear and determine issues of fact, in civil actions involving a limited
amount, in quasi criminal actions, as those for forfeiture of liquor kept con-
trary to law, 13 and, in criminal cases, on misdemeanors or minor crimes; 14
provided that the party is given, as of right, an appeal to a higher court in
which a trial by jury is preserved to him. Under both the state and federal 13
constitutions, such an appeal does not satisfy the right under consideration in a
case of treason, felony or other serious crime. While this appeal must be as
of right, it need not be unconditioned or unlimited. The legislature may pro-
vide certain reasonable restrictions. For -example, the appellant may be re-
quired to content himself with a hearing upon the matters which he specifies on
his appeal. 10
222. [Right to Judgment of Court or Jury] ; Unreasonable Limitations Tin-
constitutional. 17 The constitutional provision is violated by any monetary
qualification likely to prove an unreasonable impediment upon the right to a
jury trial; e.g., that the claim must amount to at least $50. 18
223. [Right to Judgment of Court or Jury] ; Waiver and Estoppel. 19 A
waiver may be created not only by express agreement, 20 but by failure to claim
a jury at a proper time, neglecting to appear at the trial, 21 or otherwise evi-
dencing an intention not to claim a jury. 22
224. Right to Confrontation. 23 Prominent among rights with which the
substantive law has endowed a litigant is that of confrontation; the privi-
lege of meeting the witnesses against him face to face. In other words, the
object to be secured is that the witness should give his evidence in presence 24
13. Stahl v. Lee (Kan. 1905), 80 Pac. 983. Hams v. Weeks, 70 8. C. 1, 48 S. E. 619
14. Little v State, 123 Ga. 503, 51 S. E. (1904).
501 (1905); Stone v. City of Paducah, 27 21. Cerussite Min. Co. v. Anderson (Colo.
Ky. L. Hep. 717, 86 S. W. 531 (l!Wf>): A i. 1903) , 75 Pac. 158.
State v. Lytle, 138 X. C. 738, 51 S. E. 66 22. Juvinall v. Jamesburg Drainage Dist.,
(1905); Bettge v. Terr., 17 Okl. 85, 87 Pac. 204 111. 106, 68 X. E. 440 (1903); Albe-
897 (1906). marie Steam Xav. Co. v. Worrell, 133 X. C.
15. Hettge v. Territory, 17 Okl. 85, 87 Pac. 93, 45 S. E. 466 (1903).
897 (1906). 23. 1 Chamberlayne. Evidence, 456-461.
16. Mead v. Cutler (Mass. 1907), 80 N. E. 24. The meaning of "presence," or "face
496. to face " in this connection has received a
17. 1 Cliamberlayne, Evidence, 456. common sense construction. It does not re-
18. De Lamar v Dollar, 128 Ga 57, 57 quire that the witness shoiild look at the
S. E. 85 (1907). party. He may look in another direction, as
19. 1 Chamberlayne, Evidence, 457. to the Court, while giving his testimony.
20. Lindstrom v. Hope Lumber Co. ( Idaho As was said to Earl Stafford, who complained
1906), 88 Pac. 92; Maass v. Rosenthal, 109 that a witness had averted his face from
X. -Y. Suppl. 917, 125 App. Div. 452 (1908). him: "My lord, do you see the witness;
Implied agreement as a consent to a ref- . that is enough for face to face." Earl of
erence may have the same effect. Reynolds v. Stafford's Trial. 7 How. St. Tr. 1293, 1341
Wynne, 111 N. Y. Suppl 248. 127 App. Div. (1680). A mere temporary absence from the
69 (1908); Bruce v. Carolina Queen Consol. court room of the witness while testifying
Min. Co. (N. C. 1908), 61 S. E. 579; Wil- should not be deemed an infraction of the
225 PROTECT SUBSTANTIVE EIGHTS. 114
of the adverse party. 25 The rule was not, however, intended to change any
existing rule of law and does not prevent the use of evidence of a kind where
there can from its nature be no confrontation, as in case of depositions or excep-
tions to the hearsay rule.
225. [Right to Confrontation] ; Waiver.- The constitutional protection
may be waived by a party, 2 ' as where he fails to object to evidence offered in
contravention of it ; 28 or, even more clearly, where a party, who would other-
wise be aggrieved expressly consents to its reception. 2 "
Constitution, Skaggs v. btate, 108 Ind. 571 644 (1898) ; State v. Mitchell, 119 N. C. 784,
JN. E. 695 (1886). 25 S. E. 783 (1869).
25. \\oodside v. State, 2 How. (Misa.) 665 28. State v. Rogers, 119 N. C 793, 26 S. E.
(1837); State v. Houser, 26 Mo 437 (1858). 142.
26. 1 Chamberlayne, Evidence,, 462. 29. Ruiz v. Terr., 10 N. M. 120, 61 Pac.
27. State v. Olds, 106 Iowa 110, 76 N. W. 126 (1900).
CHAPTER VII.
PRINCIPLES OF ADMINISTRATION: B. FURTHERANCE OF JUSTICE.
Furtherance of justice, 226.
primary evidence required, 227.
grading of primary evidence, 228.
evidence by perception, 229.
written and oral evidence, 230.
not a question of probalire force, 231.
extent of administrative action, 232.
necessity for using secondary evidence, 233.
grounds of necessity; witnesses or documents, 234r.
degrees of secondary evidence, 235.
how objection is taken, 236. .
" best evidence " as a rule of procedure, 237.
" best evidence " rule, at the present time, 238.
present scope of rule, 239.
a sole surriral, 240.
a vanishing rule, 241.
hearsay, 242.
attesting witnesses, 243.
completeness demanded, 244.
oral statements; proponent, 245.
admissions and confessions, 246.
oral,. 247.
confessions, 248.
independent relevancy, 249.
res fjestae an exception, 250.
oral statements ; opponent, 251.
probative effect, 252.
right of initiative, 253.
former eridence, 254.
independent relevancy, 255.
documents; proponent; independent relevancy, 256.
judgment, 257.
general practice, 258.
depositions, 259.
admissions, 260.
public records, 261.
115
FURTHERANCE OF JUSTICE. 116
executive , 262.
legislative, 263.
judicial, 264.
pleadings at law, 265.
pleadings in chancery, 266.
statutory interrogatories, 267.
judgments, 268.
verdicts, 2(55).
executions, 270.
Wi7?s and probate papers, 271.
private records, 272.
opponent; independent relevancy, 273.
incorporation by reference, 274.
obligation to introduce into evidence resulting from demand and
inspection, 27.~>.
prevent surprise, 276.
new /m// /or newly discovered evidence, 277.
action of appellate courts, 278.
amendment of pleadings, 27 ( ..
decisions on dilatory pleas, 280.
testimony, 281.
production of documents, 282.
ime and ;>?ace of /tearing, 283.
surprise must be prejudicial, 284.
protection against unfair treatment, 285.
unfair comment, 286.
incidental comment permitted, 287.
unreasonable comment, 288.
comments on law, 289.
influence of spectators, 290.
misquoting eridenee, 291.
reprimanding counsel, 292.
reprimanding a party or his witnesses, 293.
e/fer o/ waiver, 294.
protect witnesses from annoyance, 295.
cross-examination, 296.
a reasonable limitation, 297.
judge may interrogate witnesses, 298.
tn order to elicit material facts, 299.
range o/ inquiry, 300.
judge may call additional witnesses, 301.
judge should hold balance of indulgence even, 302.
judge should require full disclosure, 303.
117 PRINCIPLES OF ADMINISTBATION. 226.
expedite trials, 304.
judge should aim to give certainty to substantive law, 305.
action of appellate court; judicial function of trial judge; substantive
law, 306.
findings of fact, 307.
facts conditioning admissibility , 308.
competency of witnesses, 309.
administrative function of trial judge, 310.
executive function of trial judge, 311.
all intendments made in favor of trial judge, 312.
powers of an appellate court, 313.
modification of action, 314.
226. Principles of Administration; Furtherance of Justice. 1 Boni judicis
est ampliare justitiam. It is in furtherance of justice which constitutes the
characteristic and essential quality of the ideal judge. Only in proportion as
an v magistrate manifests, effectuates or embodies justice does he become ideal.
In this way alone is the highest obligation of the judiciary to the nation, state
or the community fulfilled. The administrative power of the court extends not
only to protecting the dignity and due regularity of judicial proceedings and
so determining the course of the trial as to protect the substantive legal rights of
the parties. It will go further and provide that litigation, as it affects the
parties, shall result in the attainment of substantial justice and in as speedy a
manner as is consistent with a careful attempt to gain it.
To secure substantial justice to the parties is avowedly the object of the pro-
cedure under consideration and the motive or object with which the court exer-
cises its wide administrative powers. In addition to its function of regulating
the orderly course of the trial itself, the judge may, in pursuance of these ad-
ministrative powers, intervene directly to secure the ends of justice. Certain
of the more prominent canons under which the presiding judge exercises his
powers may be stated. (1) He will insist that the primary evidence of any
probative or constituent fact in the possession or control of the proponent shall
be produced to the tribunal. (2) He will demand for himself, or permit a
party to obtain on request, a complete presentation of the case as a whole, or
in respect to any particular branch of it. (3) He will protect a party from
surprise or other unfair advantage, and witnesses from annoyance. (4) He
may insist on bringing out any fact deemed by him essential to a just decision ;
either by suggesting its existence to counsel or by personally asking questions
designed to elicit the truth. (5) In certain jurisdictions, he will comment if
necessary on the evidence for the guidance of the jury ; and may, in most cases,
1. 1 Chamberlayne, Evidence. 463. cannot stop to try the collateral issue as to
Evidence illegally obtained. Evidence how evidence was obtained. State v. Sut-
may he admissible though obtained by un- ter, 71 W. Va .371, 76 S. E. 811, 43 L. R. A.
lawful search or by an illegal entry. Courts (N. S.) 399 (1912).
227,228 FUKTHEKANCE OF JUSTICE. 118
call additional witnesses to the s"ame end. (6) He will hold the balance of
indulgence even between the parties ; according to both any privilege con-
ferred upon either. (7) So far as not restrained by substantive or proced-
ural law, he will require that a party or witness make a full disclosure of all
material facts. (8) lie will suggest amendments of pleadings or changes in
method of presentation calculated to bring the truth into a clearer light.
227. [Furtherance of Justice] ; Primary Evidence Required.' 2 A funda-
mental and far-reaching canon of administration is to the effect that primary
evidence will be preferred to secondary. 3 As will appear later, 4 this canon of
administration was, in its inception, treated as a rule of procedure ; which,
to a limited extent, it still continues to be. As commonly phrased, the rule is
stated by saying that the best evidence must be produced which the nature of
the case admits. 5
228. [Primary Evidence Required] ; Grading of Primary Evidence. 6 1. As
between direct evidence of any fact and circumstantial proof of that fact, the
direct evidence is deemed primary. This is the basis of the preference for
direct as compared with circumstantial evidence. Tt is also the foundation, in
part, upon which the rules as to res inter alios actae 7 have been formulated.
2. As between the judicial evidence of one who knows or has observed a
fact, and proof of an extrajudicial statement by the knower or observer, the
judicial evidence is primary. This is the administrative principle underlying
the exceptions to the rule against hearsay 8 and which ought, in principle, to
apply to the entire operation of the hearsay rule. 9
2. 1 Chamherlayne, Evidence, 464, 465. 6. 1 Chamberlayne. Evidence, 466.
3. The distinction between primary and sec- 7. Infra, 1008 et seq.
ondary evidence is one in degree of close- 8. Infra, 880 et seq.
ness, in logical relation, to the fact to be 9. The " hearsay rule " sustains an anom-
proved. The distinction is necessarily in alous relation to that requiring the " best "
large measure arbitrary : and, as commonly evidence. Like that requiring production of
drawn, indicates a relation to the fact which an original constituent instrument (infra,
is the immediate subject of the evidence the 482), the rule excluding hearsay is a regu-
factum probans rather than to its effect on lation of substantive law relating to pro-
the truth of the ultimate proposition. In cedure, or, if the phrase be preferred, a rule
other words, the evidence to establish a pro- of procedure. Unlike the procedural rule
bative fact may be primary, while that to as to documents, however, the hearsay rule
prove a constituent one may be secondary. presents the unusual feature that, so far
Speaking generally, it may be said that as given full operation, it absolutely and arbi-
evidence which a presiding judge is required trarily excludes the unsworn statements cov-
to admit as a matter of course, without ered by it. No secondary evidence is permit-
calling on the producer to explain the absence ted, however great the proponent's necessity,
of any other method of proving the fact, is On the other hand, the established exceptions
primary. Other evidence is secondary. to the hearsay rule, pedigree, declarations
4. Infra, 237 et seq. against interest, and the like, present the
5. Illinois. Vigils v O'Bannon, 118 Til. administrative feature of furnishing secon-
334, 8 N. E. 778 (J886 [reversing 19 111. App. dary evidence in the absence of the primary.
241] ; Kain v. Larkin, 131 N. Y. 300. 30 X E. (Infra, 895.) The hearsay rule becomes
105 (1892) [reversing 17 X. Y. Suppl. 223]. harmonious with the rest of the law of
119 PBIMAEY EVIDENCE. 229,230
3. In proving the contents of a constituent document, the production of the
original writing for the inspection of the court is deemed primary evidence as
compared with proof by copy or any verbal testimony as to its contents. This
application of the principle is apparently best regarded as part of the substan-
tive law relating to documents and will be considered in connection with that
important medium of proof. As is said elsewhere, 10 the present scope of the
" best evidence rule/' viewed as one of procedure, is practically limited to
prcof of the contents or execution of constituent documents.
4. As between evidence of the physical phenomena covered by actual obser-
vation and the inference of an observer as to the existence of a fact which these
phenomena appear to him to establish, the phenomena themselves are the pri-
mary evidence. This administrative principle is at the basis of the so-called
" opinion evidence " rule, excluding the unnecessary use by a witness of the
reasoning faculty, 11 and will be considered more fully in that connection.
229. [Primary Evidence Required] ; Evidence by Perception. 12 As has been
said, 13 the establishment of a grade of primary evidence is more or less arbi-
trary. It has been suggested, for example, that the evidence gained by the
direct perception of the tribunal is more cogent than any other method of
showing the same facts; that, therefore, so long as the person or object in
question can be brought before the court, no other inferior evidence should be
received. 14 This has been repudiated. 15
230. [Primary Evidence Required] ; Written and Oral Evidence. 16 It is
probable that no distinct administrative principle regards written evidence as
primary, and oral evidence as secondary. As a question of probative weight, it
is not doubtful that the document is much to be preferred. But it will, in most
instances, probably be found that the requirement of written evidence of a
given fact is due rather to the substantive law than to that of administration.
But as between two alternative methods of proving a fact, neither being for-
bidden by any act of law, there seems no principle of administration to the
effect that the one embodying the use of writing must be regarded as primary. 17
evidence by treating it as a requirement of 16. 1 Chamberlayne, 'Evidence, 468-470.
primary evidence analogous to that regu- 17. For example, while the original agree-
lating proof of the contents of a constituent ment of the parties must by rule of substan-
document and, when so regarded, is essen- tive law be produced in proof of any fact
tially sane and beneficial: while, as a bar to asserted, as primary evidence of its con-
the introduction of relevant testimony, it has tents, in any litigation between the parties
no adequate justification in reason. on the document, no such requirement is
10. Infra, 239. made in an action between a party and a
11. Infra, 672 et seq stranger. See Documentary Evidence, infra,
12. 1 Chamberlayne, Evidence, 467. 1048 et seq. So while ownership of a chat-
13. Supra, 228. tel may be established by exhibition of a
14. Greenleaf on Evid document, it may also ue shown by oral
15. Q. v. Francis, L. R. 2, C. C. R. 128 testimony. Fay v. Davidson, 13 Minn. .523
(1874): Lucas v. Williams, 66 L. T. R. 706 (1868) (steamboat): McMahon v. Davidson,
(1S92). 12 Minn. 357 (1867). The lading of goods
231-233 FURTHERANCE OF JUSTICE. 120
231. [Primary Evidence Required]; Not a Question of Probative Force. 18
The fact that other primary evidence is more probative than the primary evi-
dence offered, is no ground for excluding that actually produced. The " best
evidence " rule relates rather to admissibility than to weight. 1 '* In other
words, the rule of administration does not attempt to distinguish, in point of
admissibility, between different classes of relevant facts; provided it re-
gard them as primary. 20
232. [Primary Evidence Required] ; Extent of Administrative Action. 21
That the court is justified, unless a suitable necessity for receiving it is shown,
in rejecting the secondary evidence tendered, in refusing a continuance for
the purpose of securing the primary, seems clear. That the judge may further
properly call the attention of the jury to any unfavorable inferences which
arise from the fact of suppressing the truth, is equally unquestioned. Here
it would seem that the court must stop. It cannot dismiss the case itself with-
out hearing on the merits and as unprejudiced a consideration of the substan-
tial equities of the party's case as is possible to persons upon whom an impo-
sition has been attempted.
233. [Primary Evidence Required] ; Necessity for Using Secondary Evi-
dence. 22 Unless a litigant is able to show, to the reasonable satisfaction of the
judge, that it is necessary for him to use secondary evidence, he will be re-
quired to produce the primary. Wherever such a necessity is shown, he will
be permitted to use the secondary, 23 if otherwise competent. 24 Hearsay, never-
theless, will not be received as secondary evidence ; 25 the most startling
anomaly in the English law of evidence.
may be proved by oral testimony though a bank's officers receiving his money. The evi-
bill of lading exist. Giraudel v. Mendiburne, dence, therefore, is equally admissible. Zang
3 Mart. X. S. (La.) 509 (1825). v. Wyant, 25 Colo. 551, 56 Pac. 565, 71 Am.
18. 1 Chamberlayne, Evidence, 471. St. Rep. 145 (1898). One who saw an oc-
19. Indiana. Hewitt v. State, 121 Ind. currence from a distance though but little of
245, 23 N E. 83 (1889). it, is equally competent, if not quite as credi-
New Hampshire. Roberts v. Dover, 72 N. ble, as a witness who with excellent powers
H., 147 55 Atl. 895 (1903); Canfield v. John- of observation and a retentive memory, is
son, 144 Pa St. 61, 22 Atl 974 (1891). able to state, with absolute indifference be-
20. Roberts v. Dover. 72 N. H. 147, 55 Atl. tween the litigants, the entire set of happen-
895 (1903). ings in his immediate proximity.
For example, an admission, by a rule of 21. 1 Chamberlayne, Evidence. 472.
procedure, is made primary evidence Infra, 22. 1 Chamberlayne, Evidence, 473.
1232 et seq. It follows, so far as this 23. Binney v. Russell. 109 Mass. 55 (1871);
canon is concerned, that such a statement Langdon v. New York, 133 N. Y. 628, 31
is equally admissible, though often not so N. E. 98 (1892) [affirming 59 Hun 434, 13
probative, as the direct evidence of a per- N Y. Suppl. 864]; Inman v. Potter, 18 R. I.
cipient witness to the fact stated by the ad- 111. 25 Atl 912 (1892).
mission. Thus, the book of deposits kept by 24. Prince v. Smith, 4 Mass. 455 (1808) :
a bank, though made from slips kept by an- Niles v Totman, 3 Barb. (N. Y.) 594 (1848)
other clerk is quite as much primary evidence 25. Nichols v. Kingdom Iron Ore Co., 56 N
as to the state of a depositor's account, as Y. 618 (1874). See also Domschke v. Metro-
is the depositor's pass book kept by the politan El. R. Co., 148 N. Y. 337, 42 N. E. 804
121 PRIMARY EVIDENCE.
This necessity may arise at either of two stages of the proponent's case:
(1) that of establishing a prima facie case, or, if the proponent is not also the
actor, 2li in creating an equilibrium in a civil or a reasonable doubt in a crim-
inal case; or (2) at the stage when it is necessary for the proponent to main-
tain the situation, either of proof or doubt which he has succeeded in establish-
ing. The necessity arising at the former stage may properly be designated as
the necessity for establishing ; that arising at the latter stage seems more prop-
erly called the necessity for corroboration.
234. [Primary Evidence Required]; Grounds of Necessity; Witnesses or
Documents. 27 Reasons for resorting to secondary evidence are numerous.
A witness may be dead, sick, insane, he may be a resident of parts unknown
beyond the reach of legal process. In case of a document the primary evidence
may have been lost, destroyed or be beyond the reach of process.
Difficulty of Proof, Subject-Matter. Other reasons may justify the court
in employing secondary evidence. The necessity for using it may be inherent
in the nature of the subject-matter; as where the facts are ancient. 28
235. [Primary Evidence Required] ; Degrees of Secondary Evidence
Though the rule seems to be laid down broadly in England that there are no
degrees in secondary evidence the current of authority is otherwise in this
country. 29
236. [Primary Evidence Required]; How Objection is Taken. 30 - The party
objecting that the evidence offered is not primary, must affirmatively show that
the evidence produced by the proponent is secondary, that there is primary
evidence in existence and that it is within the power of the proponent to pro-
duce it. 31 The objecting party is bound to show not only the existence of
primary evidence within the control of the proponent of the secondary, but also
that this primary evidence is material and relevant to the truth of the proposi-
tion in issue ; 32 and that the exclusion sought will assist in the just determina-
tion of the cause. 33 For the administrative or procedural requirement of the
best evidence applies only to probative or constituent facts. It does not cover
those that are deliberative " >4 or what may be called collaterally relevant facts, 35
(1806) [reversing 74 Hun 442. 26 X. Y Suppl. Lamb v. Moberly, 3 T. B. Mon. (Ky.) 179
840] (1326); Clifton v. Litohfield. 106 Mass. 34
26. Infra. 159. (1870) : Doe v. Morris. 12 East 237 ' 1810).
27. 1 Chamberlayne, Evidence, 474-478. 33. Donahue v. McCosh, 70 Iowa 733. 30
28. Bogardus v. Trinity Church, 4 Sandf. X. \V 14 H886) : Den v. Hamilton, 12 X. J.
Ch. (X. Y.) 633 (1847) L 109 (1830 1 : Simmons Hardware Co. v.
29. Cummings v. Pennsylvania Fire Ina. Greenwood Bank, 41 S. C. 177. 19 S. E. 502,
Co., 153 Iowa 579, 134 X. W. 79. 37 L, R. A. 44 Am. St. Rep. 700 (1893).
(X. S.) 1169 (1912). 34. Xxpra, % 34.
30. 1 Chamberlayne, Evidence. 479. 35. Xew Jersey Zinc. etc.. Co. v. Lehigh
31. Roberts v. Dover, 72 X. H. 147, 55 Atl. Zinc, etc . Co . 59 X. J. L. 189, 35 Atl. 915
895 (1903). (1896); McFadden v. Kingabury, 11 Wend.
32. Ware v Morgan, 67 Ala. 461 (1880); (N. Y.) 667 (1834).
237,238 FURTHERANCE OF JUSTICE. 122
i.e., circumstances which are not in the direct line of proof of the constituent
facts.
237. [Primary E/idence Required]; "Best Evidence" as a Rule of Proced-
ure. 36 The insistence upon the primary grade of evidence in proving proba-
tive or constituent facts is by no means a universal procedural rule applicable
as a general test to all questions as to the admissibility of evidence. A rule
of this nature was much favored during the formative period of the law of
evidence.
But the attempt of English judges 37 and text-writers, 38 in the eighteenth
century to formulate a scientific procedural rule, that the best evidence of
which a case was capable was in all instances to be required, and, if produced,,
received as sufficient, necessarily failed and was abandoned ; 39 for reasons
which, in part, appear hereafter. 40
238. [Primary Evidence Required] ; " Best Evidence Rule " at the Present
Time. 41 It is not difficult to understand why the "best evidence rule" as a
rule of evidence, failed to attain the vogue which its advocates hoped and
apparently anticipated. As qualified by the words " within his power " a re-
quirement that the proponent of evidence produce the most probative proof, is
really a precept of caution, a canon of administration. Regarded as a rule of
procedure, it is unworkable. As each case arises, what shall be deemed the
most probative evidence in proponent's power must be decreed upon the special
facts, effect must be accorded to certain considerations which is denied to
others, the wealth of the parties, their opportunities for securing information,
the seriousness of the matter in controversy, all should be examined. No pro-
cedural rule could adjust such details. Only a precept of administration could
be effective under these circumstances.
ft is Inj no means invariably required, as a rule of procedure, that a party
should not suppress testimony of a higher probative force than that which he
presents; that he should conceal nothing of help to the tribunal in its search
for truth. Except in the limited cases, shortly to be mentioned, 42 he may do
as he pleases about keeping back from the tribunal, not only the best evidence he
has but the best possible evidence, if he is content to pay the penalty estab-
lished for doing so. The judge does not, as he well might under his adminis-
36. 1 Chamberlayne, Evidence, 481. admit of shall always be required, if possible
37. Yilliers v. Villiers, 2 Atk. 71 (1740), to be had; but if not possible, then the best
per Lord Hardwicke. " That all common- evidence that can be had shall be allowed."
law courts ought to proceed upon the gen- 3 Black Comm. 368.
eral rule, namely, the best evidence that 39. Queen v. Francis. L. R. 2 C. C. R.
the nature of the case will admit, I perfectly 128 M874) ; Lucas v. Williams, 66 L. T.
agree " Rep. 706.
38. ' The one general rule, that runs 40. Infrrt. 238.
through all the doctrine of trials is this, that 41. 1 Chamberlayne, Evidence, 481.
the best evidence the nature of the case will 42. Infra, 239.
123 PKIMAKY EVIDENCE. 239-241
trative powers, block his way in so doing. The u rules of the game " of litiga-
tion in general permit concealment, both in civil and criminal cases, if the
litigant prefers to pay the price for doing so. Ln many cases the only penalty
is a logical one; the presumptio contra spoliatorem, as it is occasionally
called. 43 An inference arises, as a matter of logical necessity, that he who
thus refuses to produce the decisive evidence undertakes to defraud justice
because the more conclusive testimony, if produced, would operate less favor-
ably upon his contention than does the less probative proof on which he prefers
to rely. 44
239. [Primary Evidence Required] ; Present Scope of Rule. 45 As a rule of
procedure the requirement of the best evidence never was enforced to its full
extent as stated by its formulators ; nor, for the reasons just given, could it
have been thus applied with any advantage to the cause of justice. As a rule
denitely regulating the admissibility of a class or species of evidence, the pres-
ent scope of the mandatory portion of the " best evidence rule " is limited to
proof of the contents of constituent documents in actions between the parties
thereto.
/
240. [Primary Evidence Required] ; A Sole Survival. 46 He who is to prove
the contents of a writing must produce the writing itself or account satisfac-
torily to the court for his failure to do so; as a condition precedent to per-
mission to use any less probative form of proof.
It is probable that the survival of this solitary application of the best evi-
dence rule as a rule, is due to a controlling influence entirely extrinsic to it-
self ; the existence of a substantive conventional right in each party to a
constituent document of insisting not only that its ascertained purport should
not be varied by outside evidence (which is the nucleus of the " parol evidence
rule"), but also that in ascertaining this purport the actual document should
be the sole evidence of its contents : which is the present form of the " best
evidence " rule viewed as one of procedure rather than as a principle of admin-
istration.
241. [Primary Evidence Required] ; A Vanishing Rule. 47 While, therefore,
the broad principle of the " best evidence rule." in the sense that primary evi-
dence will be required wherever attainable, is operative and gaining force and
extension, the line of operation of the " best evidence rule " as a rule of pro-
cedure, has dwindled to very narrow proportions. As the sole survival of the
procedural rule is this moribund requirement that in proving the contents of a
written instrument between the parties to it, the original must be produced or
43. Infra. 430 et seq. U. S. v. Reyburn, 6 Pet. (U. S.) 352, 8 L. ed.
Omnia praesumnntur contra spoliatorem. 424 (1832).
as is the common adage. Broom's Legal Max- 45. 1 Chamberlayne. Evidence, 482.
ims (7th ed.), p 717 46. 1 Chamberlayne, Evidence, 483.
44. Fitzgerald v Adams, 9 Ga. 471 (1851) ; 47. 1 Chamberlayne, Evidence. 484, 485.
242-245 FURTHERANCE OF JUSTICE. 124.
its absence accounted for, the requirement itself may well be regarded from
the standpoint of the modern law of evidence, as is elsewhere suggested, as
but an instance of the general administrative canon that primary evidence is
to be preferred to secondary.
242. [Primary Evidence Required] ; " Best Evidence Rule " at the Present
Time. 48 The rule against hearsay, in its inception at least, constituted a pro-
hibition attaching to a witness rather than to the derivative character of what
he said. Under the early procedure a person who could not state something
to the jury which he had seen or heard simply did not come within the class of
persons designated as witnesses. Two branches of the law of evidence come
from this single root the rule against hearsay 49 and that excluding " opin-
ion " evidence. 50 Neither he who could state only what some one had told
him nor the person who could say merely what he inferred were witnesses, as
the term was then understood.
243. [Primary Evidence Required]; Attesting Witnesses. 51 For reasons
similar to those affecting proof of the contents of documents, it may fairly be
assumed that the rule of procedure which requires that where the execution of
an instrument is attested by the signature of a subscribing witness in any pro-
ceedings based on the instrument, its execution must be proved by the evidence
of such subscribing witness, is not so much an example of the best evidence
rule as an independent regulation of substantive law, ratifying the assumed
convention of the parties.
244. [Furtherance of Justice] ; Completeness Demanded. 52 Fairness may
mean completeness. The preservation of good faith by the parties frequently
assumes the form of a requirement by the court that the complete meaning of
an oral statement or the entire purport of a document should be placed before
the jury.
245. [Completeness Demanded]; Oral Statements; Proponent. 53 From the
standpoint of the proponent of the evidence, the party taking the initiative, this
canon of administration is simple. Whatever he shall offer to the tribunal must
be presented with sufficient fulness to place it in a true light. lie is left free
to choose his evidence and limit the purpose of it. But he must not arbitrarily
select isolated portions of an entire statement which produce, when divorced
from their context and qualifications, a false impression, unduly favorable to
himself. He must, if he produces anything on a given subject, present so
much of it as. will represent it fairly and as it is. It is the clear right of the
tribunal to have for its consideration an entire oral utterance where any part
48. 1 Chamberlayne, Evidence, 486. 51. 1 Chamberlayne, Evidence. 487.
49. Infra, 857 et seq. 52. 1 Chamberlayne, Evidence. 488.
50. Infra, 672 et seq. 53. 1 Chamberlayne, Evidence, 489.
125 COMPLETENESS DEMANDED. 240-248
of such statement has been offered in evidence. This fundamental prerequisite
to the ability to adjudicate justly is not in dispute.
246. [Completeness Demanded] ; Admissions and Confessions. 54 In the ma-
jority of instances, the question as to completeness arises with regard to admis-
sions or confessions, including statements made by a third person in the pres-
ence of the party. The special reason for the truth of this fact is, that a party
whose statements are relied upon as admissions frequently seeks, under the
guise of completing his statement to introduce in evidence his self-serving and
otherwise incompetent declarations.
247. [Completeness Demanded] ; Oral. 55 Oral admissions should be proved
in their entirely, 50 the complete declaration made at one time being taken as a
whole. 57 This includes all conversations upon a relevant topic in which a
party participates, 58 or which takes place in his presence 59 under conditions
conferring relevancy upon his conduct with regard to it. 00
248. [Completeness Demanded]; Confessions. 01 A confession must be
proved as a whole. In case of such a statement, the whole declaration must,
as the phrase is, *' be taken together," G2 as well for as against the accused, 63
it being obviously impossible to ascertain what the accused has admitted with-
out knowing what qualifications, if any, he has placed upon the prima facie
meaning of the inculpatory phrases. Should the confession have been reduced
to writing the practice applicable to other documents may well be extended to
it, and the written confession introduced, as a whole, without being read, each
party being at liberty to use such portions as may be deemed material. 64 This
practice is especially commendable for the protection of the interests of third
persons whom the statement may tend to incriminate. As the confession, in
the absence of conspiracy or other agency, is competent against no one but the
declarant, there is danger lest third persons mentioned in the statement may be
prejudiced by it, if the entire document were read.
The American practice allows the confession to be read as a whole, caution-
54. 1 Chamberlayne, Evidence, 490. 64. Webb v. State, 100 Ala. 47, 52, 14 So.
55. 1 Chamberlayne, Evidence, 491. 865 (1893). " The practice has been, in read-
56. Wilson v. Calvert, 8 Ala. 757 (1845); ing confessions, to omit the names of other
Johnson v. Powers. 40 Vt. 611 (1868). Infra, accused parties, and, where they are used,
1296. to say ' another person,' ' a third person,'
57. Johnson v. Powers, 40 Vt. 611 (1868). etc,, where more than one other prisoner was
58. Barnum v. Barnum, 9 Conn. 242, 247 named : and some judges have even directed
(1832). witnesses, who came to prove verbal dec-
59. Gillam v. Sigman, 29 Cal. 637, 641 larations to omit the names of those persons
(1866). in like manner." R. v. Clewes, 4 C. & P.
60. Infra, 566. 221,224 (1830), note K. v. Hearne. 4 C. & P.
61. 1 Chamberlayne, Evidence, 492 215 (1830); R, v. Fletcher, 4 C. & P. 250
62. Com v Kussell, 160 Mass. 8, 10, 35 (1829) See also R. v. Walkley, 6 C. & P.
N. E. 84 (1893). 175 (1833).
63. Eiland v. State, 52 Ala. 322 (1875).
249-252 FURTHERANCE OF JUSTICE. 12U
ing the jury that it is not evidence as against tnird persons mentioned in
it." 5
249. [Completeness Demanded] ; Independent Relevancy . li(i Where, as in
case of admissions, contradictory declarations 7 or statements independently
relevant ' is for some other reason, u the object is merely to show that a given
statement was made, it will, in general, be sufficient for the proponent of the
evidence to prove the statement itself in its fullness, 70 leaving any modification
of its effect to his opponent.' 1
250. [Completeness Demanded] ; Res Gestse an Exception. 72 There is, how-
ever, one important qualification of this rule. Where the independently rele-
vant statements constitute or assist to constitute the res gestce of a transaction,
the entire matter must be stated by the proponent in the first instance. The
reason is plain ; that the statements cannot be divorced from their context.
The practice is the same where it is neither the fact of a statement, nor its
legal effect, but its logical and probative meaning which is involved in the
inquiry.
251. [Completeness Demanded] ; Opponent. 73 From the standpoint of the
party who does not offer the evidence in the first instance, the canon of com-
pleteness operates to permit a reasonable amount of supplementing on his part
of the evidence after his opponent has presented it to the court with the re-
quired degree of fairness and fullness. When once he has opened the door, it
is open for his antagonist as well.
The party may claim, in the first place that, on the whole, the oral state-
ments on the occasion referred to or the declarations of a particular document
on a given subject have not been fully and correctly stated.
In the second place, the opposing party may claim and exercise the right to
insist, not only that the extracts offered by his antagonist do not, when the
proper contemporaneous qualifications are made, support the latter's conten-
tion, but that, when taken as a whole, they actually sustain his own inconsistent
claim.
252. [Completeness Demanded] ; Probative Effect. 74 All that is said con-
cerning any given topic at any one rime should be received, if any portion of it
65. Massachusetts Com. v Bishop, 165 evidence of the facts asserted. Infra, 857
Mass 14S, 42 X. E. 560 (1896). et seq.
\ortk Carolina. State v. Collins, 121 N. 70. Sylvester v. State (Fla. 100.'}). 35 So
C. 667. -28 S. E. 5-20 (1S07K -l-r'2: State v La whom. SS N C 634. 6:57
66. 1 Chamherlayne, Evidence. 403. (1S*3) ; Davis v. Smith. 75 N. C 115 (18.76).
67. Infra, 071. 71. Hudson v State. 137 Ala. 00. 34 So
68. Infra, 837 et se<i.: Drake v. State, 854 (100-2): Halifax Nankin? Co. v. Smith.
110 Ala. 9, 20 So. 450 (1895) (threats). 29 N Bninsw. 46'2. 465. 18 Can. Suppl. 710
69. Admissions and confessions, though, in (1S90) (admissions).
a sense, independently relevant (infra, 72. 1 Chamherlayne. Evidence. 404
837 et seq.) , are considered as constituting 73. 1 Chamherlayne. Evidence. 495
74. 1 Chamberlayne, Evidence, 406
127 COMPLETENESS DEMANDED. 253-255
is admitted. 75 The tribunal is entitled to receive the whole of what was said
at the same time on the same subject. 76 But what was said at the same time on
a different subject, as to which the judge will determine, 77 cannot be added by
way of supplementation, unless, indeed, the matter is still pending. 78
253. [Completeness Demanded] ; Right of Initiative. 79 It will be observed
also that the part added, by way of supplementation, is not independent evi-
dence, but is a component part of the otherwise imperfect and fragmentary
statement which it completes and is governed as to its purpose and effect in
evidence by those of the main fact to which it is, in a way, ancilliary. But the
opponent has other rights than that of supplementing. He has also the right
of initiative in offering evidence. This may be permitted for one of two pur-
poses additional to the mere supplementing of the parts already in evidence,
(a) He may put in other parts to sustain an independent theory of his own
as to the effect of entire declaration, or (b) he may use such additional matter
to establish a disconnected fact as to which he himself has the initiative.
Having a right to introduce this evidence at some stage of the trial, whether it
shall be done at one point or another, is a question of the order of evidence,
and entirely within the administrative function of the judge a matter of
discretion. 80
254. [Completeness Demanded] ; Former Evidence. 81 The requirement re-
garding former evidence, 82 to the effect that the reporting witness should be
able to state, in extension, the entire oral utterance, 83 is exceptional. The
general practice is to receive the statements of a witness as to so much of the
relevant parts of the conversation 84 or other utterance, 85 . as he heard; fail-
ure to hear the entire conversation being a consideration properly affecting the,
weight. 86
255. [Completeness Demanded] ; Independent Relevancy. 87 This considera-
75. Cusick v. Whitcomb, 173 Mass. 330, 53 83. If part of the former testimony of
N. E. 815 (1899). a witness is admitted the whole is competent.
76. Bailey v. Carlton, 95 Pac. 542 (1908); Aulger v. Smith, 34 111. 534 (1864). Such
Chicago City Ry. Co. v. Bundy, 210 111. 39, additional evidence may, however, be properly
71 X E. 28 (1904) [judgment affirmed. 109 limited to statements Avhich may fairly be
111. App. 637 (1903)]; Earley v. Winn. 129 said to qualify the evidence already received.
Wis. 291, 109 X. \V. 633 (1906). Siberry v. State, 149 Ind. 684, 39 X. E. 937
77. Robinson v. Ferry, 11 Conn. 460, 463 (1895) : lie Chamberlain, 140 X. Y. 390, 393,
(1836). 35 X. E. 602 (1893).
78. "The question is merely this, whether 84. State v. Elliott, 15 Iowa 72, 74 (1863) ;
a particular conversation is part of a preced- State v. Daniels. 49 La. Ann. 954, 22 So. 415
ing conversation because a negotiation begun (1897).
was still pursued." Stewart v. Sherman, 5 85. People v. Daniels, 105 Cal. 262, 38 Pac.
Conn. 244, 245 (1824). 720 (1894).
79. 1 Chamberlayne, Evidence, 497. \orth Carolina. State v. Robertson, 121
80. See WITNESSES. 1171 rt seq. N. C. 551, 28 S. E. 59 (1897K
81. 1 Chamberlayne, Evidence, 498. 86. Mays v. Deaver, 1 Iowa 216. 222 (1855).
82. Infra, 633. 87. 1 Chamberlayne, Evidence, 499.
256-258 FURTHERANCE OF JUSTICE. 128
tion would be, for obvious reasons, of less importance in dealing with state-
ments independently relevant, 88 than where the statement shown is relied upon
as proof of the facts asserted in it. In either case, however, the weight may
be reduced below the point of relevancy. 89 It is no ground for excluding a
statement that the declarant made other disconnected statements at another
time which are in conflict with it. 90
Rules relating to incorporation by reference apply equally to oral statements
as to documents. Where an oral declaration is made with such reference to a
document, by whomever made, 01 or a verbal statement, 92 by whomever uttered,
as to be unintelligible, or otherwise incomplete without it, the document or
statement will be received or required, according to its obvious necessity to the
case of the proponent. If the part, admitted is reasonably intelligible in the
first instance, without the document or statement to which reference is made,
the opponent will be allowed to supply it at a stage where he has the initia-
tive.
256. [Completeness Demanded] ; Independent Relevancy. 93 In case of a
document used, not to the end of proving a proposition but of establishing the
existence of the document, or some statement contained in it, all that need be
proved is the existence of such a document or statement.
257. [Completeness Demanded] ; Judgment. 94 Thus, in case of a judg-
ment, all that need at times be proved is that, in point of fact, such a judgment
was rendered. Evidence of preliminary, subsequent or subordinate matters
need be produced only so far as is necessary to show that the judgment was
rendered and specialize as to what it covers. 95
258. [Completeness Demanded] ; General Practice. 90 Documents, viewed in
their probative capacity, i.e., as evidence of facts which their statements assert,
invite from their very nature, to an administrative practice fair to both parties
and also to the court, while avoiding unnecessary loss of time. The practice is
to require the proponent to produce, in evidence, the entire document and then,
the document being in evidence as having been offered by the proponent, to
88. People v. Dice, 120 Cal. 189, 52 Pac. 551 (1899); State v. Gossett, 9 Rich. L. (S.
477 (1898) (threats): State v. Moelchen, 53 C.) 437 (1856).
Iowa 310, 314, 5 X. W. 186 (1880) (foreign 91. Buffum v. New York Mfg. Co., 175 Mass,
language; one word '' knife " recognized) : 471. 56 N. E. 599 ( 1900 ) ; Trischet v. Ins. Co.,
Shifflet's Case, 14 Gratt. (Va.) 652, 657 14 Gray 457 (1860).
(1858) (confession). 92, Judd v. Brentwood, 46 X. H. 430
89. William v. State, 39 Ala. 532 (1865) (1866): Insurance Co. v. Xewton, 22 Wall,
(confession interrupted before completion; ex- (U. S.) 32, 35 (1874).
eluded) ; People v. Gelabert, 39 Cal. 663 93. 1 Cliamberlayne, Evidence, 500.
(1870) (confession partly in Spanish which 94. 1 Chamherlavne. Evidence, 501, 502.
the witness did not understand: excluded) ; 95. Little Rock C. Co. v. Hodge, 112 Ga.
State v. Gilcrease, 26 La. Ann. 622 (1874). 521, 37 S. E. 743 (1000); Rpiney v. Hines,
90. Com. v. Chance, 174 Mass. 245, 54 N. E. 121 N. C. 318, 28 S. E. 410 (1S97).
96. 1 Chamberlayne, Evidence, 503.
129 COMPLETENESS DEMANDED. 259-261
permit^ each party to read, at any appropriate stage, such portions of the docu-
ment as may be deemed material.
General Considerations. In general the proponent of a document produced
in evidence cannot, it is said, be required to read the entire instrument on its
presentation. ' There is, however, as in case of depositions, authority to the
contrary effect, that the proponent may be compelled to read the entire docu-
ment before proceeding with other evidence. 9 * 5
259. [Completeness Demanded] ; Depositions." The party who has taken
a deposition or given his own, 1 need, in the tirst instance, read only the direct
examination, 2 or such portion of it as he deems material, 3 subject to immediate
correction by the judge, in case of obvious unfairness, 4 or for other cause.
260. [Completeness Demanded] ; Admissions. 5 Where an admission is in
writing it is particularly appropriate, as in case of oral admissions, that the
self-serving portion go to the jury at the same time as the portion more favor-
able to the proponent, providing the two are needed to give the effect of the
statement as a whole. This is the practice not only where the statements are
made at or about the same time, e.g., were parts of a single transaction; but
where, as in case of an account, the entries, both of charge and discharge are
made at different times.
261. [Completeness Demanded]; Public Records. 7 Public record as a rule
is afforded to instruments constituent of legal results. The interdependence
of parts being especially marked in instruments of this nature, a full copy of
the original record, which itself, is usually irremovable, alone demonstrates
whether a particular conclusion is justified by the instrument ; or whether, on
the contrary, some minor and perhaps disconnected clause may modify and
indeed control the alleged meaning and effect. Such a full copy being as
97. Lester v. Ins. Co. 55 fia. 475, 470 (1875) California. Orland v. Finnell. 65 Pac. 976
(letter) : SlinglolT v. Bruner, 174 111. 561. 51 (1901).
X E. 772 (1S9S). 3. Bunzel v. Maas, 116 Ala. 68. 22 So. 568
98. Milne v. Leisler, 7 II. & X. 7S6, 795 (1897).
(1862). If one party reads a portion of a The entire direct examination must, it is
written document in evidence in his behalf. said, he read in the original instance. South-
the other party is entitled to the reading of wark Ins. Co. v. Knight. 6 Whart. (Pa.) 327,
the remaining portions thereof, before the 3.10 (1841).
intervention of other testimony. Snanagel 4. The whole of any particular answer
v. Bellinger, 38 Cal. 279, 283 (I860) (former must be read. Perkins v. Adams. 5 Mete,
pleadings). (Mass.) 44, 48 (1842).
99. 1 Chamberlayne, Evidence. 504. 5. 1 Chamberlayne, Evidence. 505.
1. Thomas v. Miller, 151 Pa. 4S2, 486. 25 6. Bridges v. State. 110 Ga. 246. 34 S. E.
Atl. 127 (1892). 1037 (1900) (entire book introduced) : State.
2. The practice, which seems a convenient v. Powers. 72 Vt. 168. 47 Atl. 830 (1900) :
ore, has not been adopted in England. Tern- Rowan v. Chenoweth. 49 W. Va. 287, 38 S. E.
perley v. Scott, 5 C. & P. 341 (1832). Xbr 544 (1901).
is it accepted in a majority of American 7. 1 Chamberlayne, Evidence, 506.
jurisdictions.
262-264 FURTHERANCE OF JUSTICE. 130
readily obtained as a partial one, the court is justified in so discharging its
administrative function as to require that it be done. The litigant offering
any part of a public record puts in evidence a copy of the whole of that recond 8
and, thereupon, reads or otherwise states the portion on which he actually
relies. 9
Deeds, Wills, etc. Records, as those of deeds, wills, and the like which are
customarily copied in extenso are proved by verbatim copies, duly certified by
an official or proved, under oath, by an examining witness.
262. [Completeness Demanded] ; Executive. 10 The executive department
of government affords numerous instances of records to which the requirement
of completeness is constantly being applied ; whether these public documents
are those made in extenso, or consist of what may be called " single entry "
records. Of this latter class are parish registers of births, marriages and
death, 11 and municipal official records covering the same data, 12 plats of lots, 13
tax lists. 14
263. [Completeness Demanded]; Legislative. 15 Where proof is required
of a statute, only such portions need be introduced in evidence as are material, 16
and relate to the proposition in issue, 17 whether the proof is by deposition 18 or
otherwise, and whether the statute be domestic 19 or foreign. 20
264. [Completeness Demanded] ; Judicial. 21 In no connection is the appli-
cation of the principle of completeness at once so difficult and so important as
in regard to judicial records. The requirement is strongly insisted upon by
the presiding judge, in the interest of public justice. 22
Irrelevancy, if Separable, Rejected. Where an entire record cannot, by
any possibility, ever become material on an issue, but a line of clear demarca-
8. Smith v. Rich, 37 Mich. 540 (1877): 17. Chamberlain v. Maitland, 5 B. Monr.
State v. Clark, 41 X. .T. L. 486 (1879) : Wood <Ky.) 448 (1845) (law as to holidays);
v. Knapp, 100 X. Y. 109, 2 X. E. 632 11885). Adle v. Sherwood. 3 Whart. (Pa.) 481, 483
See also Garrish v. Hyman, 20 La. Ann. 28 (1838).
(1877). The title of a statute is not sufficient to
9. Davis v. Mason, 4 Pick. (Mass.) 156 establish its effect. State v. Welsh, 3 Hawks
(1826). (X. C.) 404, 407 (1824) (incorporation).
10. 1 Chamberlayne, Evidence. 507. 18. Biesenthall v. Williams, ] Duv. (Ky. )
11. American Life Ins. Co. v. Rosenagle, 77 320 (1864) : Chamberlain v. Maitland, 5 B.
Pa. 507, 515 (1875). Monr. (Ky.) 448 (1845) i foreign notary ).
12. State v. Potter, 52 Vt. 33, 38 (1879); 19. Grant's Succession. 14 La. Ann. 795
Blair v. Sayre, 20 W. Va. 604, 606, 2 S. E. (1859).
!)7 (1887). 20. Chamberlain v. Maitland, 5 B. Monr.
13. Farr v. Swan. 2 Pa. St. 245. 255 (1845). (Ky.) 448 (1845) : Grant v. Coal Co., 80 Pa.
14. Job v. Tebbetts, 10 111. 376, 380 (1848) ; 208, 216 (1876).
State v. Howard, 01 Me. 396, 40 Atl. 65 21. 1 Chamberlayne, Evidence, 509.
(1898) liquor tax payers). 22. Illinois. Vail v. Iglehart, 69 111. 332
15. 1 Chamberlayne, Evidence, 508. (1873).
16. Swift v. Fitzhugh, 9 Port. (Ala.) 39,
54 (1839).
131 COMPLETENESS DEMANDED. 265-268
tion may be traced between relevant and irrelevant parts of the record, the pro-
ponent may rest content upon offering the former portions of the writing.
265. [Completeness Demanded] ; Pleadings at Law. 23 In connection with
the pleadings themselves, whether in equity or at law, substantially the same
canons of administration are adopted. Pleadings may be offered for either
of two purposes. In the first place, as is shown elsewhere, the statement may
be independently relevant, i.e., by reason of its own existence regardless of the
truth of the facts asserted. Or, on the other hand, the pleading may, as where
it contains an admission, be used as constituting evidence of something asserted
by it, i.e., in what may be called its probative or assertive capacity.
266. [Completeness Demanded] ; Pleadings in Chancery. 24 In dealing with
pleadings in chancery causes the bill, as a whole, should be produced by the
opponent ; and so much of it read by him, subject to supervision by the court
and correction by his antagonist, as fairly covers, to a reasonable exeut, 25 the
particular aspect or portion of the bill which he deems relevant to the truth of
a proposition in issue. 26 In equity causes where the answer is treated as a
pleading, e.g., when used in the cause in which it was filed, the same rule as to
completeness is applied.
267. [Completeness Demanded] ; Statutory Interrogatories. 27 The propo-
nent may offer such portions of his adversary's statements in sworn answers as
he deems material and helpful to himself 28 not being obviously unfair or mis-
leading, and subject at all times to the power of the court to order that other
portions of the adversary's statement, necessary to fairness 29 or essential to a
complete understanding 30 should also be read. The rights of the proponent
are subject also to the further qualification that, while he is at liberty to decide
on what topic, if any, he will interrogate his opponent, he will be required,
having selected his subject and asked his questions, to introduce in evidence all
that his opponent has to answer as to it. 31 The matter is one frequently
regulated by a " rule of court."
268. [Completeness remanded] ; Judgments. 32 It is not, in the absence of
exceptional circumstances, as where the inquiry is as to the nature of a claim
23. 1 Chamberlayne, Evidence, 510. 27. 1 Chamberlayne, Evidence, 512.
24. 1 Chamberlayne. Evidence. 511. 28. 2 Van Horn v. Smith, 59 Iowa 142. 148,
25. To introduce in evidence part of a writ- 12 X. W. 789 (1882): Lyon v. Marriott. 5
ing. such as a bill in equity, and withhold Brit. Col. 157 (1896): Wunderlich v. Ins.
from the jury the balance of the instrument, Co., 104 Wise. 382, 80 X. W. 467 ( 1809).
it is at least necessary to point out definitely 29. Hammatt v. Emerson, 27 Me. 308, 335
the part offered, that is, the pases, para- (1847).
graphs, sentences or words. When this is not 30. Allend v. R. Co., 21 Wash. 324, 58 Pac.
done, the whole or none should go to the jury. 244 ( 1899) .
Jones v. Grantham, 80 Ga. 472, 477. 5 S. E 31. Demelman v. Burton, 176 Mass. 363, 57
764 (1888). X. E. 665 (1900).
26. Jones v. Grantham, 80 Ga. 472, 476, 5 32. 1 Chamberlayne, Evidence, 513.
S. E. 764 (1888).
209-271 FUKTIIEKAXCE OF JUSTICE. 132
which has been placed iii a judgment, 33 or the effort is made for the enforce-
ment of the judgment itself, 34 the practice to require that the whole record, in
all its extension, on whatsoever matter relating, should be produced. What is
demanded, is the whole record relating to the particular proposition ; :i5 all
that which establishes by judicial hearing the existence of the fact which it is
sought to prove.
269. [Completeness Demanded] ; Verdicts/ 56 The general rule is that a rec-
ord of a verdict standing alone, i.e., without the judgment, is not admissible, be-
cause, otherwise, non constat but that the verdict may no longer be in force. It
may have been set aside or for some other reason no judgment have issued on it. 37
Clearly, however, the production of a verdict is independently relevant to the
effect that there was a suit which progressed so far as to reach a verdict* 1 ' 8
270. [Completeness Demanded]; Executions. 39 In its probative capacity
as establishing the facts adjudicated, an execution is not complete without the
judgment on which it was issued ; 4U and, usually, other portions of the record.
If the execution is independently relevant, e.g., where 1 an officer in possession
of goods under an execution proceeds against a third person acting without
claim or right, 41 or where the owner of the goods sues the officer for seizing
them under his writ, 42 mere production of the execution is sufficient.
271. [Completeness Demanded] ; Wills and Probate Papers. 43 It is essen-
tial that the* copy of a will be full and complete. In several states of the
American Union it is required, in order that a copy of a will should be admis-
sible, that it be accompanied by a record of its probate. 44 Elsewhere, a cer-
tificate of the register of probate or other suitable official that the accompany-
ing will has been duly proved will be accorded a prima facie effect. 45 Com-
pleteness is conditioned, however, in all cases, by the object of the offer.
Administration. Appointment as administrator of the estate of a decedent
should be proved, in the ordinary case, by production of the original papers,
or record books, or else by a copy of them, sworn or certified.
33. Jones v. Hopkins, 32 Iowa 503, 504 (1810). See also McLeod v. Crosby, 128
(1871). Mich. 641, 87. N. W. 883 (1901).
34. Willis v. Louderback, 5 Lea (Tenn.) 39. 1 Chamberlayne, Evidence. 515.
561 (1880). 40. Vassault v. Austin. 32 Cal. 507 (1867).
35. People v. Pike, 197 111. 449. 64 N. E. 41. Spoor v. Holland. 8 Wend. (X. Y.) 445,
393 (1902) (county court records). 24 Am. Dec. 37 (1832).
Indiana. Brown v. Eaton. 08 Ind. 591, 42. Deloach v. Myriok. 6 Ga. 410 (1849).
595 (1884): Drosdowski v Chosen Friends, 43. 1 Chamberlayne, Evidence. 516.
114 Mich. 178. 72 N. W. 169 (1897): Garner 44. Kentucky Land, etc., Co v. Crabtree,
v. State, 5 Lea 213, 217 (1880). 113 Ky. 922, 70 S. W. 31, 24 Ky. L. Rep. 743
36. 1 Chamberlayne, Evidence. 514. (1902).
37. Comm. v. Minnich. 250 Pa. 363, 95 Atl. 45. Lopan v. Watt. 5 Sera. & R. (P a .) 212
565. L. R. A. 1916 B 950 (1915). (1^19). See also Thursby v. Myers. 57 Ga.
38. Waldo v. Long, 7 Johns. (N. Y.) 173 155 (1876).
133 COMPLETENESS DEMANDED. 272-274
272. [Completeness Demanded] ; Private Records. 46 The records of a cor-
poration in any suit in which they are relevant and competent may be proved
by a certificate from the proper officer, an examined and sworn copy, 47 by pro-
duction of the books properly authenticated, 48 or in any other legal manner, as
an admission. 49
273. [Completeness Demanded] ; Independent Relevancy. 50 When proof of
the independent relevancy of a document has been made, the opponent is at
liberty to read so much of the remainder of its statements as pertains to the
same subject and tends to qualify, limit or explain the portion already read.
This doctrine applies to pleadings, 51 public records, 52 and private writings. 53
274. [Completeness Demanded] ; Incorporation by Reference. 54 The ad-
ministrative requirement, of completness calls for introduction in evidence of
documents referred to in the writings already before the court. The greater
the relative importance of the document in the case, the more its precise shades
of meaning are significant, the more .strenuously will the judge insist that all
writings incorporated in it by reference should be produced for inspection. 00
// a letter is introduced that to which it is in reply is rendered competent ; 56
and, indeed, will be required, 57 as in cases of oral conversation, 58 whenever
available; 59 extracts from it not being deemed a sufficient compliance with
the rule. " Where, however, the letter originally offered is intelligible 61 and
not obviously incomplete t;2 as it stands and it further appears that the letter
46. 1 Chamberlayne, Evidence, 517- 73 ('. C. A. 302, 142 Fed. 73: Tilton v. Beecher,
47. "Proprietors' records" of common X. Y., Abbott's Rep. II, 270 (1875).
lands, etc., are treated in the same manner. 57. Walson v. Moore, 1 C. & K. 626 (1844).
Pike v. Dyke, 2 Greenl. i Me. ) 213 (1823); " We can perceive no just distinction between
Woods v. Banks, 14 X. H. 101, 109 i 1843). oral conversation and written correspondence
48. Hanks v. Darden, 18 Ga. 318, 341 in this respect." Trischet v. Ins. Co., 14 Gray
(1855). (Mass.) 457 (I860).
49. Sinking Fund Com'rs v. Bank, 1 Mete. 58. Parts of a correspondence or conver-
(Ky.) 174, 185 (IS58) (recital of corpora- sation necessary to the complete understand-
tion's doings contained in a mortgage). ing of such conversation or correspondence
50. 1 Chamberlayne, Evidence, 518-520. are, as a rule, admissible by way of supple-
51. Davies v Flewellen, 29 Ga. 40 (1.859): mentation, if any portion of the eorrespon-
Sciple v Xorthcutt, t2 Ga. 42, 45 (1878) deuce or conversation is received. Trischet
(amendment to bill). v. Ins Co. 14 Gray (Mass.) 457 (I860).
52. Rule v State (Miss. 1S98) 22 So. 872. "If we have the sermon, let us have the
53. Stone v. Town of Tallalah Fall-. 131 text " Tilton v Beecher, X. Y, Abbott's
Ga. 452, 62 S. E. 592 MOOS) (ordinance Rep. 11. 270 (1875).
book): Page v. Hazelton. 74 X. H 252. 66 59. Kayward R. C. v. Duncklee. 30 Vt.
Atl. 1049 (1907) (entries in a book of ac- 29. 39 M856).
count). 60. Coats v. Gregory. 10 Tnd. 345, 346
54. 1 Chamberlayne. Evidence. 521-523. (1858).
55. East Coast Lumber Co. v. Ellis-Young 61. Brayley v. Ross, 33 Towa 505 (1871);
Co (Fla. 1908), 45 >o 826 (deed) : Stone v. Xew Hampshire T. Co v. Korsmeyer. etc., Co,
Sanborn, 104 Mass 319. 324 (1870) (con- 57 Neb 74. 7^ X. W. 703 (1899).
tract). 62. Stone v Sanborn, 104 Mass. 319, 324
56. Seciiritv Trust Co v. Robb (X. J. 1906). ( 1870).
275-277 FURTHEKANCE OF JUSTICE. 134:
to which it is in answer 63 or the documents enclosed or referred to are in the
possession of the adverse party, the balance of convenience may well be found
in receiving the letter as offered, leaving the work of supplementing or ampli-
fying it to the opposite side at a subsequent stage.
275. [Completeness Demanded] ; Obligation to Introduce into Evidence Re-
sulting from Demand and Inspection. 64 Under a certain set of circumstances,
the law of procedure itself overrides the option of the party to produce a docu-
ment in his power and compels him to put it in evidence. This occurs where
he who subsequently is obligated to become the proponent of the document has
given notice to his adversary requiring the latter to produce the writing, and
the latter has in fact produced it. The demanding party has now availed
himself of the opportunity so secured of inspecting .the document. He is no
longer at liberty to decline to keep the examined document out of evidence ; he
must, by the rule originally laid down in England, offer the whole writing 65
" if at all material to the issue." 66 The document is thereby made evidence
for both parties. 67 The object which the court in so ordering had in view was
to punish and thereby discourage " fishing " for the adversary's evidence.
267. Prevent Surprise. 68 It is the duty of the presiding judge to prevent
surprise upon a litigant ; that his substantive rights shall not suffer by
unforeseen developments in the case which could not have been anticipated and
prevented by the exercise of ordinary prudence. The judge's solicitude that
there be no miscarriage of justice will be proportionate to the importance of
the consequences of the untoward event to the party affected by it ; and also
to the degree of culpability of the respective parties for the existence of the
situation which is presented. It may be the duty of the court to adjourn the
hearing or continue the case, or even to award a new trial, 69 according to cir-
cumstances.
277. [Prevent Surprise] ; New Trial for Newly Discovered Evidence. A
new trial will not be granted on a mere showing that new evidence has been
discovered. Such evidence must meet the following requirements: 1. It must
63. Barnes v. Trust Co., 160 111. 112. 48 ' born. 104 Mass. 310, 3^4 (1870). The prac-
N. E. 31 (1807). tioe is the same even in criminal oases. I". S.
Stone v. Sanborn, 104 Mass. 310, 324 v. Doebler, 1 Baldxv. (U.S.) 510,522 (1832)
(1870). (forgery).
'' In either case, whether the communica- 64. 1 Chamberlayne. Evidence, 524-526.
tions are by successive letters or by distinct 65. Calvert v. Flower, 7 ('. & P. 380 (1836) ;
conversations, the party introducing the sec- Wharam v. Routledge. 5 Esp. 235 (1805).
ond in evidence may. if he pleases, introduce 66. Wilson v. Ro\vie, 1 C. & P. 8. 10 (1823).
the first also, and if he does not. the other 67. Com. v. Davidson, 1 Cush. (Mass.) 33,
party may. The actual custody of the papers 44 (1848).
does not affect the question which party shall 68. I Chamberlayne, Evidence. 527.
introduce them, but only the steps to be taken 69. Xorfolk & VV. Ry. Co. v. Coffey (Va.
to compel their production." Stone v. San- 1905), 51 S. E. 729.
135 PREVENT SURPRISE. 278
be such that it will probably change the result if a new trial is granted. 2. It
must have been discovered since the trial. 3. It must be such that it could not
have been discovered before the trial by the exercise of due diligence. 4. It
must be material to the issue. 5. It must be not merely cumulative to the
former evidence. 6. It must not be to merely impeach or contradict the former
evidence. Cumulative evidence is additional evidence of the same kind to the
same point. Evidence to prove a distinct issue is not cumulative. 70
278. [Prevent Surprise]; Action of Appellate Courts. 71 Adjournment or
continuance on the ground of surprise is a question of administration. When,
therefore, reason has been employed, the exercise of the power will not be re-
viewed on appeal. Where, however, its action is unreasonable the ruling of
the trial court may be reversed. 72
279. [Prevent Surprise]; Amendment of Pleadings. -a/roniment among
causes assigned for surprise warranting a stay of proceedings is in connection
with a change in the pleadings. Where the allowance of an amendment to a
pleading so alters the forensic position of the opposite party that he is not able
to proceed without delay except by impairing the chances for a successful
issue in his favor, 74 he will ordinarily be given the benetit of a continuance on
the ground of surprise. The rule is. enforced with particular strictness in
criminal cases. 75
280. [Prevent Surprise] ; Decisions on Dilatory Pleas. 76 In case of deci-
sions by the court upon dilatory pleas 77 or other formal matters, 78 the nature
of which might reasonably have been anticipated, some proof of threatened
prejudice other than the party's allegation or statement" that he is surprised at
the result, will be required to warrant a continuance. On the other hand, it
may be equally clear that where the result of the court's action is to place a
party in a situation different from what he could fairly have foreseen, the
continuance is not only reasonable, 79 but may even be necessary to the ends
of justice.
70. Vickers v. Carey Co. (Okla. 1015), 151 611 (embezzlement from another society).
Pac. 1023, L. II. A. 1916 C 1155. The accused may, however, be required to
71. 1 Chamberlayne, Evidence, 526-528. show that he intends in good faith a defense
72. Pirrung v. Supreme Council of Catholic to the amended complaint. Williams v State
Mut. Ben. Ass'n, 93 X. Y. S. 575, 104 App. (Tex. Cr. App. 1005), 87 S. YV. 1155.
Div. 571 (1905). 76. 1 Chamberlayne, Kvidence. 528b.
73. 1 Chamberlayne, Evidence. 52Sa. 77. St. Louis. 1. M. & S. Ry. Co. v. Smith
74. Despatch Laundry Co. v. Employers' (Ark. 1907). 100 S. W. 884 (plea in abat-
Liability As.sur. Corp., 105 Minn. 384. 118 X. ment).
\\ . 152 (1908) (raising new issues) [rehear- 78. Vulcan Ironworks v. Burrell Const. Co.
ing granted. 105 Minn. 384. 117 X. W. 506]: (Wash. 1905), 81 Pac. 836 (motions for
Horwitz v. La Roche (Civ. App. 1908), 10" non-suit K
S. W 1148-. Wright v. Xorthern Pac. Ry Co., 79. Crotty v. City of Danbury, 79 Conn. 379,
38 Wash. 64. SO Pac. 197 (1905). 65 Atl. 147 (1906).
75. Foreman v. State (Miss. 1909), 48 So.
281-284 FURTHERANCE OF JUSTICE. 136
281. [Prevent Surprise]; Testimony. 80 Where the testimony given at a
trial is such that it could not reasonably have been anticipated by the party
against whom it is offered, he will, if it is material to the decision of the case, 81
be entitled to an opportunity of meeting it, by adjournment, 8 - or continuance, 83
if this be the only adequate means of facing the situation. 84 Such an order
may be of especial importance in a criminal case.*"'
Such surprise may consist in the failure of a party's own evidence 86 where
he has used due diligence in procuring it 8T or in the change by a witness in
his testimony from what was fairly to be expected 88 or from the absence of a
witness whose testimony becomes suddenly and unexpectedly important. 89
282. [Prevent Surprise] ; Production of Documents/" 1 The rule is the
same with regard to the production of papers. The court has full power to
protect a party from surprise due to the introduction of documents by the
opposite party under circumstances not reasonably to have been anticipated by
him. 91 If necessary for doing justice, the judge may continue the case. 92
Nor is the rejection of immaterial documents a suitable ground for claiming
OQ
surprise.
283. [Prevent Surprise] ; Time and Place of Hearing/' 4 Where a party,
without his fault, is surprised as to the time or place of holding court, the
trial judge will be justified in granting a continuance. 95 A rearrangement of
cases on the court's docket may have this effect. 96
284. [Prevent Surprise] ; Surprise Must be Prejudicial. 97 The surprise
against which the presiding judge is bound, so far as consistent with his other
80. 1 Chamberlayne, Evidence, 528c- Contracting Co., 93 N. Y. Suppl. 920, 105
528g. App. Div. 90 (1905). A continuance on this
81. Dempsey v. Taylor, 4 Tex. Civ. App. ground may be refused where many witnesses*
126. 23 S. W. 220 (1893). are prepared to testify on the point. Blair
82. Heyman v. Singer, 99 X. Y. Suppl. 942, v. State (Neb. 1904). 101 X. W. 17.
51 Misc. IS (1906). 89. Schwar/.schild & Sulzberger Co. v. Xew
83. Louisville & X. R. Co. v. Bell (Ky. York City Ry. Co., 90 X. Y. Suppl. 374
1909), 119 S. W. 782; Johnson v. Com. 32 (1904) (gone home at G p. m.).
Ky. L. Rep. 1117, 107 S. W. 768 (1908). 90. I Chamberlayne, Evidence, 528h.
84. Freeland v. Brooklyn Heights R. Co.. 91. Leveret t v. Tift, 6 Ga. App. 90, 64 S. K
6(i X. Y. Suppl. 321, 54 App. Div. 90 (1900). 317 ( 1909) : Dare v. McXutt, 1 Ind. (1 Cart.)
85. Lir.dlc v. Com., 2.", Ky. L. Rep. 1307, 14S i 1848) ; Bronaugh v. Bowles, 3 La. 120
64 S. W. 980 (1901 ). (1831,.
86. Thready-ill v. Bickerstaff. 7 Tex. Civ. 92. Leverett v. Tift. 6 Ga. App. 90. 64 S. E.
App. 406, 26 S. W. 739 (1894): Texas & P. 317 (1900). A motion for a continuance
Its. Co. v. I5o<rgs (Tex. Civ. App. 1895) 30 should be promptly made. McLear v. Hap-'
S. \V. 1089 (failure ot counsel to comply with good, 85 Cal. 557, 24 Pac. 788 (1890).
stipulation) : Shipp v. Suggett, 48 Ky. (9 B. 93. Lyons & E. P. Toll Road Co. v. People,
Monr.) 5 (1848) (drunken witness). 29 Colo. 434. 68 Pac. 275 (1902).
87. Pinson v. Bass, 114 Ga. 575, 40 S. E. 94. 1 Chamberlayne, Evidence. 528i.
747 (1902) : Sheedy v. City of Chicago, 221 95. Ross v. Austill. 2 Cal. 183 (1852).
111. 111. 77 X. E. 539 (1906) (measuring a 96. Elliott v. Cadwallader, 14 Iowa 67
sewer) : St. Louis. \V. & \Y. R. Co. v. Ransom, (1862).
29 Kan. 298 (1883). 97. 1 Chamberlayne, Evidence. 528j.
88. McDonald v. Holbrook, Cabot ,1- Dalv
157 PREVENT SURPRISE. 285-287
administrative duties, to protect a litigant is one which clearly impairs the
latter's chances of success, i.e., is prejudicial to him. 08
285. [Prevent Surprise] ; Protection against Unfair Treatment.'^ A broad
canon of administration, so inclusive that but occasional instances can, here and
there, be given of its application, is that the court will, in furtherance of jus-
tice, protect each party from unfair treatment. This may be threatened either
from the opposite party or from the judge himself. In whichever guise the
danger may present itself, the administrative duty of the court to remove it is
clear.
286. [Prevent Surprise]; Unfair Comment. 1 The weight which the jury
attach to the utterances of the judge, their anxiety to seek a clue from him
which may, in a case of bewildering uucerainty, relieve them from their own
duty will make him extremely cautious that his prejudice shall not supplant
the orderly administration of law. The trial judge will, therefore, at all times,
carefully refrain from interpolating remarks which indicate to the jury the
opinion which he has formed on a material point in dispute, 2 or as to what
facts are 3 or are not 4 proved. 5 He may even refrain from stating as to what
facts there is evidence.*
287. [Prevent Surprise] ; Incidental Comment Permitted. 7 A certain in-
cidental comment by the court is not unreasonable, especially where the jury
are distinctly instructed that questions of fact in issue are to be decided by
them. It is not, for example, unreasonable for the judge in discussing with
counsel the admissibility of evidence, 8 the propriety of a nonsuit, 9 the direc-
98. The exclusion of inadmissible evidence (.a. App. 832, 58 S. E. 88 (1907) ; Thomson v.
furnishes no ground for surprise. McCutchin Kelley (Tex. Civ. App. 1906), 97 S. \V. 326.
v. Bankston, 2 Ga. 244 (1847); Simpson v. 3. Ficken v. City of Atlanta, 114 Ga. 970, 41
Johnson (Tex Civ App. 1898), 44 S. W. S. E. 58 (1902): In re Knox's Will (Iowa
1076 The fact that the same evidence was 1904), 98 X. W. 468 (Tex. Civ. App. 1907),
admitted without objection at a former trial 103 S. W. 444.
does not constitute the subsequent exclusion 4. Atlantic Coast .Line R. Co. v. Ponel 1 ,
a surprise. Turner v. Tubersing, 67 Ga. 161 127 Ga. 805, 9 L R. A. (X. S.) 769, 56 S. E.
(1881). Nor does the fact that the opposing 1006 (1907).
witnesses testify differently than they have 5. The demeanor of a judge may bo as
told the objecting party they would, consti unfair to a party as his verbal sxpretfuon*.
tute such a threatened prejudice as will be City of Xewkirk v. Dimmers, 17 Ok' 525,
deemed a surprise Brock v Com., 33 Ky. 87 Pac. 603 (1906).
JL. Rep. 630. 110 S. W. 878 (1908). See 6. Patten v. Town of Auburn (Wash,
also Texas Cent. Ry Co. v Brock (Tex. Civ. 1906), 84 Pac. 594.
App. 1895), 30 S. W. 274. 7. 1 Chamber layne. Evidence, 529b.
Improper conduct on the part of the judge 8. Hampton v City of Macon, 113 Ga.
which takes place after verdict rendered can 93, 38 S. E 387 (1901) (view); St. Louis
scarcely be deemed prejudicial. Central of &. S. W Ry. Co. v. Elgin Condensed Milk Co
Georgia Ry Co. v. Perkerson, 115 Ga. 547, 175 111. 557, 51 X. E 911 (1898) [judgment
41 S. E. 1018 (1902). affirmed, 74 111. App 619 (1898)]; Herrstrom
99. 1 Chamber layne. Evidence. 529 v. Xewton & X. W. R. Co., 105 X. W. 436
1. 1 Chamberlayne. Evidence, 529a. (1905).
2. Georgia Ry. & Electric Co. v. Baker, 1 9. Continental Ins. Co. v. Wckham, 110
288-291 FURTHERANCE OF JUSTICE. 138
tiou of a verdict, or other similar questions, 10 to refer to the evi-
dence. 11
288. [Prevent Surprise] ; Unreasonable Comment. 12 On the other hand,
to characterize the statement of a witness as '' very fair and unbiased,' 1 13 or
to suggest that certain evidence, if believed, is or is not 14 conclusive, that
other facts are or are not very material, 10 may well be regarded as objection-
able. 10
289. [Prevent Surprise] ; Comments on Law. 17 Whatever may be thought
of the good judgment of a trial court who shall undertake to criticize un-
favorably the rule of law which he is announcing to the jury, such a course
does not, in itself, constitute unfair treatment of the party for whom the rule
operates. 18
290. [Prevent Surprise] ; Influence of Spectators. 10 Aware of the psychic
influence of the dramatic features of a trial, to which reference is elsewhere
made, 20 the presiding judge will seek to prevent the issue of the trial from
being affected by applause, 21 or other manifestation of feeling, on the part of
the audience.
291. [Prevent Surprise]; Misquoting Evidence. 22 To misquote the evi-
dence of a witness upon a material point may be a form of unfair treatment
against which a party is reasonably entitled to the protection of the judge.
Against the action of a litigant so offending the court will promptly afford his
assistance to the injured party. Naturally, moreover, he will be careful that
his own quotations from the evidence shall be correct, or so modified by a
reference to the power and duty of the jury to judge of the testimony 23 that
any inexactness is calculated to do but little harm.
Ga. 129, 35 S. E. 2s7 (1900); Cave v. 114 Ga. 266, 40 S. E. 231 (1901). See also
Anderson, 50 S. C. 293, 27 S. E. 693 (1897). McMinn v. Whelan, 27 Cal. 300 (1865).
10. Elgin, J. & E. Ky. Co. v. Lawlor, 132 14. Haynes v. City of Hillsdale (Mich.
111. App. 280 (1907) [judgment affirmed, 1897), 71 N. W. 466; St. Louis & S. F. R. Co.
229 111. 621, 82 N. E. 407]: Stoebier v. St. v. Lane (Tex. Civ. App.. 1908), 110 S. W. 530.
Louis Transit Co., 203 Mo. 702, 102 S. W. 651 15. Howland v. Oakland Consol. St. Ry. Co.,
(1907) (motion to strike out evidence 1 ; Fi- 115 Cal. 487, 47 Pac. 255 (1896).
delity Mut. Fire Ins. Co. v. Murphy (Xeb. 16. McKissick v. Oregon Short Line Ry.
1903), 95 N. W. 702 (overruling dilatory Co., 13 Idaho 195, 89 Pac 629 (1907).
motions). 17. 1 Chamberlayne, Evidence, 529d.
11. Where a trial judge, on rejecting evi- 18. Martin v. Peddy, 120 Ga. 1079, 48 S. E.
dence, sees fit to comment upon its materiality 420 (1904) ; Lake Shore & M. S. Ry. Co v.
or value, the action may well be justified. Ford, 18 Ohio Cir Ct. R. 239 (1899);
In re City of Seattle. 52 Wash. 226, 100 Pac. Kreuger v. Sylvester (Iowa 1897), 69 N. W.
330 (1909); Manhattan Bldg. Co. v. City of 1059.
Seattle, 52 Wash. 226, 100 Pac. 330 (1909). 19. 1 Chamberlayne, Evidence, 529e.
12. 1 Chamberlayne, Evidence, 529c. 20. Supra, 81.
13. Edwards v. City of Cedar Rapids (Iowa 21. Central of Georgia Ry. Co. v. Mote, 131
1908), 116 N. W. 323 (expert physician). A Ga. lf>6, 62 S. E. 164 (1908).
judge should not, in the hearing of a jury, 22. 1 Chamberlayne. Evidence, 529f.
compliment^, witness. Alexander v. State, 23. Prescott v. Fletcher, 133 Ga. 404, 65
139 PRETEXT SURPRISE, 292-295
292. [Prevent Surprise]; Reprimanding Counsel. 24 The interests of par-
ties may be injuriously affected at times, by reprimands addressed by the
judge to their counsel. 25
293. [Prevent Surprise] ; Reprimanding a Party or His Witnesses. 26
Nothing unfair to a party is done where the judge, in reasonable discharge of
his executive or police powers, 2 ' has occasion to reprimand one of his witnesses
or even to commit him for contempt. 28
294. [Prevent Surprise] ; Effect of Waiver. 29 A party who might other-
wise be prejudiced by the action of a judge may place himself in a position
where he is not justly entitled to take advanage of it in an appellate court. 30
This may happen, for example, where the party claiming to be aggrieved de-
clines to avail himself of a reasonable offer on the part of the judge to repair
the consequences of the latter's erroneous action. 31 Where, moreover, a liti-
gant consents that the trial shall take a certain course, 32 e.g., that questions of
law shall be argued in presence of the jury 33 or that talesmen should be added
to a jury without waiting for the arrival of the regular panel, 34 he cannot
complain of the legitimate consequences flowing from the adoption of the pro-
cedure.
295. [Prevent Surprise] ; Protect Witnesses from Annoyance. 35 The further-
ance of justice requires that its administration should be made to press with as
little of hardship as possible upon witnesses. The judge may, therefore, rea-
sonably so exercise his administrative powers as to protect the witness from
all avoidable annoyance. The sacrifices of time and convenience usually ex-
acted as the price of testifying at all, he cannot well control. But the insult,
innuendo and gibes of counsel may, by a vigilant judge be, in large measure,
averted from their victim. 36 In view of the administrative powers at his
command, it would be impossible, even were it desirable, for the presiding
justice to escape responsibility in this matter.
S. E. 877 (1909); Lee v. Williams, 30 Pa. 29. 1 Chamberlayne, Evidence, 529i.
Super. t_t. 349, 357 (1906). 30. Richardson v. State (Tex. Cr. App.
24. 1 Chamberlayne, Evidence, 529g. 1906), 94 S. W. 1016.
25. Woodson v. Holmes, 117 Ga. 19, 43 S. E. 31. Richards v. City of Ann Arbor, 152
467 (1903). It is improper for the court to Mich. K, 115 N. W. 1047, 15 Detroit Leg. N.
refer to expert testimony as " bought en testi- 142 (1908).
mony." People v Jennings (Mich. 1903), 94 32. Farley v. Gate City Gaslight Co. (Ga.
.N. W. 216, 10 Detroit Leg. N. 39; Adams v. 1898), 31 S. E. 193; Spangehl v. Rpangehl,
Fisher, 83 Neb. 686, 120 N. W. 194 (1909). 57 X. Y. Suppl. 7, 39 App. Div. 5 (1899) (call
26. 1 Chamberlayne, Evidence, 529h but five witnesses).
27. Supra, 99. 33. Moore v. Rose, 130 Mo. App. 668, 108 S.
28. Marcumv. Hargis, 31 Ky. L. Rep. 1117, W. 1105 (1908).
104 S. W. 693 (1907) (drunkenness in court) 34. Rice v. Dewberry (Tex. Civ. App. 1906),
Seawell v. Carolina Cent. R. Co., 132 N. C. 93 S. W. 715.
856, 44 S E. 610 (1903) [rehearing denied, 35. 1 Chamberlayne, Evidence, 530.
45 S. E. 850] (laughing).
^ J'-n;-L",)8 FURTHERANCE OF JUSTICE. 140
296. [Prevent Surprise]; Cross-examination/ 57 The principal occasion for
the objectionable and offensive treatment of witnesses is upon cross-examination.
Here the zeal of counsel has been most frequently betrayed into excesses. If
this enthusiasm is honest, an intimation from the court usually suffices for its
control. 38 A cross-examination in any way abusive is improper, and can only,
so far as the witness is concerned, be repressed by the presiding judge. In
the same way, it may be proper for the court to intimate to counsel that the
cross-examination of a particular witness is being unduly protracted. 39
297. [Prevent Surprise] ; A Reasonable Limitation. 4 " It bv no means fol-
lows that the course of a judge in allowing a witness to be intimidated or
otherwise annoyed is, in all cases, bad administration. The object of this
treatment may richly merit such an experience ; the interests of justice may
demand that he be so treated. In undertaking to limit the rights of counsel,
as to tone, gesture, manner as well as substance of examination, the possible
existence of fraud, bad faith, perjury must not be overlooked.
.Innuendo. Counsel should rarely be permitted to comment upon the evi-
dence they are eliciting. 41 An appropriate opportunity will be reserved for
such observations at a later stage. At that of examination; the principal effect
of such comment, and often, apparently, its exclusive object, is to embarrass
the witness.
Intimidation. Any question which tends to intimidate 42 or embarrass a
witness is objectionable.
298. Judge May Interrogate Witnesses. 4 - The judge may elicit evidence;
he should not intimate his opinion as to the case, its .merits or the credibility
of witnesses. The right of a judge, for the promotion of justice, to interrogate
a witness is not affected by the constitutional provision forbidding judges to
comment upon the evidence in the case. 44 In any case, the court will not in-
terrogate a party or witness in such a manner as to indicate to the jury the
judgment which he may have formed regarding the truth of a disputed 7iiat-
ter of fact, especially if such a fact be a material one. 4 '' On the other hand,
36. Eliott v. Boyles, 31 Pa. St. 66 (1837). ally all that is needed to restrain such ardor.
Where a witness on the stand is wantonly when it does not arise in any degree from
attacked by the attorney of the opposite party habitual want of respect for the rights of
without any provocation whatever, the act others and for the order of public business."
of the trial judge in reproving such attorney Eliott v. Boyles, 31 Pa. 66 (1857).
is proper. Heffernan v. O'Xeill ( Xeb. 1901), 39. Crane Lumber Co. v. Bellows (Mich.
96 N. W. 244. In like manner, the judge 1898), 74 X. W. 481.
upon heing appealed to by a witness for fur- 40. 1 Chamberlayne, Evidence, 532, 533.
ther time in which to answer the questions of 41. Ings' Trial, 33 How. St. Tr 957, 999
counsel, is justified in directing that sufficient (1820)
time be allowed her for the purpose. Bir- 42. Haines v. Ins. Co., 52 X. H. 470 ( 1872 )
mingham Ry. & Electric Co. v. Ellard, 135 Ala. 43. 1 Chamberlayne. Evidence, 534-536.
433, 33 So. 276 (1903). 44. Wilson v. Ohio River & C. Ry. Co.
37. 1 Chamberlayne, Evidence, 531. (S C. 1898), 30 S. E. 406. Supra, 281.
38. " When the presiding judge is respected 45. Bryant v. Anderson, 5 Ga. App. 517,
and prudent, a hint kindly given is gener- 63 S. E. 638 (1909).
14:1 JUDGE MAY INTERROGATE. ^ i",U-301
he may not properly ask immaterial questions calculated to arouse the passions
arid prejudices of a jury. 46 In the same way, while the judge may question
witnesses to bring the facts properly before the jury, he must so frame his
questions as not to indicate hi? own opinion, and not to lay undue stress on
particular features of the witness' testimony tending t'o impeach him. 47
vj 299. [Judge May Interrogate Witnesses] ; In Order to Elicit Material
Facts. 4S But the judge may interrogate a witness for a higher purpose than
to enable him to give the jury full instructions. Beside his function of offer-
ing light to the jury, he has a duty to justice. He should therefore ask any
question calculated to present new and material evidence. 49
300. [Judge May Interrogate Witnesses] ; Range of Inquiry. 5 " The only
limitation upon the range of the judge's interrogation is that the power should
be reasonably exercised. The questions should be relevant, and so framed as
not to prejudice either of the parties. As is said by the supreme court of
Georgia.'"' 1 a judge may ask a witness " any legal question he pleases." He
may ask leading questions/' 2
;; 301. Judge May Call Additional Witnesses. ^ Where the social demands
of justice are likely to suffer by an avoidable inadequacy of proof, the court
may, of its own motion, seek to supply it. Thus, if a material witness, avail-
able to the parties, is not produced, the judge may cause him to be sworn and
testify.''' 4 The judge may make the order equally whether he is 5r> or is not
46. Flinn v Ferry, 127 Cal. 64*, 60 Pac. would likely throw any light upon the testi-
434 (1900) mony." Huffman v. Cauhle. 86 Ind 591,
47. Barlow Bros. t'o. v. Parsons, 73 Conn. 596 (1882).
606, 49 Atl. 205 i 1001. Should the examina- Xugc/estions to Counsel. The trial judge
tion clearly show the judge's opinion on the is not required to ask the questions person-
question of credibility, it is matter for re- ally. He may suggest them to counsel. State
versal. City of Flint v. Stockdale's Estate, v. Xoakes. 70 Vt. -247. 40 Atl. 240 (1898).
157 Mich. 503. 122 N. W 270. Hi Detroit Leg. 50. 1 Chamberlayne, Evidence. 538. 530.
X. 403 (19M<. This power and duty of 51. Epps v. State. 10 (ia. Ill (1855),
interrogation is not limited to judges. Tt Where the judge is forbidden to comment on
applies a\*o to inferior magistrates or persons the evidence in charging the jury, for the
exercising temporary judicial functions, such judge to indicate by his question his opin-
as arbitrators. Butler v. Boyles, 10 Humph. ion as to a material fact, would constitute
155 (1840). prejudice Harris v. State. 61 Ga. .350
48. 1 Chamberlayne, Kvidence. 537. (1878).
49. It may properly be said in any case 52. See WITNESSES, infra, 1172: 25 Han-
as was said by Judge Bickwell in the su- sard Parl. Deb. 207 (1813).
preme court of Indiana: "A circuit judge 53. 1 Chamberlayne. Evidence, 540
presiding at a trial is not a mere moderator 54. Selph v. State. 12 Fla. 537. 548 (1886) ;
between contending parties: he is a sworn Hoskins v. State. 11 Ga. 92, 97 (1852) : Ful-
officer charged with grave public duties. In lerton v. Fordyce. 144 Mo. 510. 44 S. W.
order to establish justice and maintain truth 1053 (1808) ; Coulson v. Disborough, L. R. 2
and prevent wrong, he has a large discretion Q. B. D 316 (1894).
in the application of rules of practice. . . . 55. Badische A. & S. Fabrik v. Levinstein,
There is nothing wrong in the court's asking L. R. 24 Ch. D. 156, 167 (1883).
the witness any question the answer to which
302, 303 FUKTHEKANCE OF JUSTICE. 142
sitting as a jury. His right to ask questions of a witness is subject, however,
to the qualification that his questions should be put in open court. It is
highly improper for a judge to interrogate a witness privately and subsequently
ask him questions upon the basis of the information so obtained. 5 " In much
the same way a witness may properly be recalled for further examination at
the request of the presiding judge. 57
302. Judge Should Hold Balance of Indulgence Even. 58 A presiding
judge will not be permitted to grant an indulgence to one party which he
denies to the other. This rule is one of wide range of application. So where
one party has been permitted to offer evidence on a particular subject 50 or to
use some special class of evidence, 60 his adversary will be conceded the priv-
ilege of meeting him upon the same ground 01 or with the same weapons. 62
Use of Incompetent Testimony. The principle has even been carried so
far, in certain courts, as to permit a party against whom is introduced irrele-
vant evidence 63 or that which is incompetent, 64 hearsay, " opinion " 65 or the
like," 6 to insist upon meeting it with equally incompetent evidence of the same
nature.
In a criminal case, the same right has been conceded to the prosecution
where the accused has introduced without objection, legally inadmissible testi-
mony. 67
303. Judge Should Require Full Disclosure. 68 A party is not entitled, as
a matter of right, to withdraw legal and competent evidence, voluntarily in-
56. Littleton v. Clayton, 77 Ala. 571, 575 Co. v. White (Colo. 1903), 75 Pac. 415; Mc-
(1884). See also Sparks v. State, 59 Ala. Ilwain v. Gaebe, 128 111. App. 209 ^1906)
82,87 (1877). (X-ray photographs).
57. Fitzgerald v. Benner, 219 111. 485, 76 63. Warren Live Stock Co. v. Farr, 142
N. E. 709 (1906). For an interesting and Fed. 116, 73 C. C. A. 340 (1905).
instructive contribution to the learning of this 64. German-Amer. Ins. Co. v. Brown (Ark.
subject see 57 L. R. A. 875. 1905), 87 S. W. 135.
58. 1 C'hamberlayne, Evidence, 541. 65. Provident Sav. Life Assur. Soc. v. King,
59. McElevaney v. McDiarmid, 131 Ga. 97, 216 111. 416, 75 N. E. 166 (1905) [affirming
62 S. E. 20 (1908); Alpena Tp. v. Mainville, judgment, 117 111. App. 556] (conclusion);
153 Mich. 732, 117 X. W. 338, 15 Detroit Leg. State v. Grubb, 201 Mo. 585, 99 S. W. 1083
N. 605 (1908). (1906) (handwriting) ; Ahnert v. Union Ry.
60. Bates v. Hall (Colo. 1908), 98 Pac. 3 Co. of N. Y. City, 110 N. Y. Suppl. 376
(parol evidence) ; Missouri, K. & T. Ry. Co. (1908) ; Lefevre v. Silo, 98 X. Y. Suppl. 321,
of Texas v. Steele (Tex. Civ. App. 1908), 110 112 App. Div. 464 (1906) (conclusion).
o. W. 171. 66. Aetna Ins. Co. v. Fitze (Tex. Civ. App.
61. Jefferson Min. Co. v. Anchoria-Leland 1904), 78 S. W. 370 (compromise offer).
Min. & Mill Co., 75 Pac. 1070, 64 L. R. A. 925 Where plaintiff gave secondary evidence with-
(1904); Kuhn v. j^ppstein, 239 111. 555, 88 out objection, defendant should have been
X. E. 174 (1909) ; Kelly v. Chicago, R. I. & allowed to give similar contradictory evidence.
P. Ry. Co. (Iowa 1908), 114 X. W. 536; McCormack v. Mandlebaum, 92 N. Y. S. 425,
Jetter v. Zeller, 104 X. Y. S. 229, 119 App. 162 App. Div. 302 (1005).
Div. 179 (1907) ; Whitney v. Haskell, 216 Pa. 67. People v. Duncan (Cal. App. 1908), 96
622, 66 Atl. 101 (1907) (construction of Pac. 414 (hearsay).
agreement). 68. 1 Chamberlayne, Evidence, 542, 543.
62. Farmer's High Line Canal & Reservoir
143 EXPEDITE TRIALS. 304
troduced by him, which is favorable to his adversary. 69 While the interests
of public justice may require a full disclosure on the part of a witness, the
attempt to break down the testimony of one whom the judge regards as mis-
taken 7 " may more properly be left to counsel.
304. Expedite Trials. 71 Beyond a certain point, to delay justice in any
case, in to deny it. " Undue delay is a denial of justice." ~ cz The expediting
of trials is therefore in the direction of the furtherance of justice, and, there-
fore, is well within the administrative duty of the court. But no furtherance
of justice, as a whole, can take place by declining to accord to a case all the
time reasonably necessary to diagnose every material fact merely in order to
advance a case standing later on the docket. 7 " The present canon of adminis-
tration prescribes economy in the use of time. It permits any expenditure
which is reasonably necessary for the purpose of doing justice.' 4 It cautions
merely against time's waste; nothing is said against its useful employment. 75
Methods Employed. In seeking this objective of administration the at-
tainment of substantial justice as speedily as is consistent with the adequacy
of the result itself courts proceed, in addition to minor and more incidental
methods, by these principal ways: (1) Such a use of its judicial knowledge
and power to rule as to the existence of prima facie states of evidence as will
prevent diverting of attention from the facts really in dispute and keep the
case as it were constantly turning on its hinge; (2) controlling the range of
inquiry at any stage to the reasonable requirements of proof; 76 (3) eliminat-
ing evidence of slight, collateral, or remote logical bearing; 7T (4) regulating
introduction of cumulative evidence; 78 (5) limiting number of witnesses; ''
((>) restricting repetition of question; 80 (7) restricting repetition of testi-
mony; 81 (8) restricting length of argument; 82 (9) restricting length of ex-
amination ; s3 number of conusel. etc.
69. Zipperer v. City of Savannah, 128 Ga. 79. White v. City of Boston, 186 Mass. 65,
135, 57 8. E. 311 (1907). 71 X. E. 75 (l'J04) ; Swope v. City of Seattle,
70. Glover v. United States, 147 Fed. 426, 36 Wash. 113, 78 Pac. 607 (1904); Austin
77 C. C. A. 450 (1906). v. Smith & Holliday (Iowa 1906), 109 N. W.
71. 1 Chamberlayne, Evidence, 544-555. 289; J. H. Clark Co. v. Rice, 127 Wis. 451,
72. Post v. Bklyn. Heights R. R. Co., 195 106 X. W. 231 (1906); Taylor v. Security
N. Y. 62 (1909).* Life, etc., Co., 145 X. C. 383, 59 S- E. 139
73. People v. Pease, 27 X. Y. 45, 61 (1863). (1907).
74. Amoskeag Mfg. Co. v. Head, 59 X. H. 80. Singer & T. S. Co. v. Hutchinson, 184
332 (1879). 111. 169, 56 X. E. 353 (1900) ; Simon v. Home
75. Godard v. Gray, L. R. 6 Q. B. 139, 152 Ins. Co., 58 Mich. 278, 25 X. W. 190 (1885) ;
(1870). Ulrich v. People, 39 Mich. 245, 251 (1878).
76. Aurora v. Hillman, 90 111 61 (1878) ; 81. Stern v. Bradner Smith & Co., 225 111.
Stroh v. South Covington, etc, R. Co. 78 430, 80 X. E. 307 (1907) [affirming 127 111.
S. W. 1120, 25 Ky. L. Rep. 1868( 1904); App. 640 (1906)]: Griswold v. Xichols, 126
Davis v. U. S., 165 U. S. 373, 17 S. Ct, 360, Wis. 401, lOo X. W. 815 (1905).
41 L. ed 750 (1S97). 82. Munro v. Stowe, 175 Mass. 169, 55 N.
77. Com. v. Williams, 105 Mass. 62 (1870). E 992 (1900) : Reagan v. St. Louis Transit
78. Georgia. U'hite v. Columbus Iron Co., 180 Mo. 117, 79 S. W. 435 (1904).
Works Co., 113 Ga. 577, 38 S. E. 944 (1901). 83. Walker v. McMillan. 21 X. Br. 31, 44,
o05-C07 FURTHERANCE OF JUSTICE. 144:
305. Judge Should Aim to Give Certainty to Substantive Law. 84 The final
general canon of administration is that of legal certainty. Litigation should
be so conducted as not only to (A) secure and enforce the substantive rights of
the parties, 85 ( l> ) further justice," (Cj do it in as speedy a manner a& is
consistent with the higher ends,*' but also (D) to create and establish a mure (
complete and perfect system of substantive law.
In seekiny to secure to the community as a whole the benefit of the litigation
between individuals, the judiciary as a body, having a continuous tradition
and a constant object, endeavors to utilize the results of repeated jury trials
for making the rules of law more precise and definite. Such action is evi-
dently in the line of the public interest.
Where successive juries upon substantially similar facts evidence by their
decisions a fairly uniform tendency to draw a particular inference from these
facts, the judge may, in committing the decision of the same question to a jury
call attention to this inference, if approved by him, as being a reasonable one,
which the jury may properly consider, giving it such weight as they may think
proper. The court has announced a " presumption of fact," so called. 88
306. Action of Appellate Court; Judicial Function of Trial Judge; Substan-
tive Law. 80 Any ruling as to substantive law, whether in open court or con-
fused 90 connection with administrative or judicial rulings, is clearly subject
to review. On ordinary principles, any ruling as to matter of substantive law
or procedure, incidental to a subsidiary finding 91 as that deciding a subordinate
issue of fact in a particular way renders certain evidence admissible or inad-
missible, 92 or that the court has or has not a discretion in the matter, may con-
stitute error.
307. [Action of Appellate Courts] ; Findings of Fact. ua A finding bv the
trial judge as to a preliminary or subsidiary fact may be final or provisional,
according as the ultimate determination as to the existence of the fact is or is
not within the duty of the presiding judge. If it is within his province and
is justified by the rules of reasoning, 94 it is " a finality as much as the verdict
of a jury upon a question of fact " 95 and will not be reviewed in an appellate
6 Can. Sup. 241, 245 (1882); Mason v. 94. How far. discretionary. The deter-
Ditchbourne, 1 M. & Hob. 460, 462 (1835). mination of a subsidiary question of fact is
84. 1 Chamberlayne, Evidence, 556. said necessarily to rest chiefly " in the dis-
85. Ritpra, 147 et seq. cretion of the presiding judge." Lane v.
86. Xupra. 226 et seq. Moore, 151 Mass. 87. <)1 (1890). This may be
87. Supra, 304 et seq. doubted, if by discretion is implied irrespon-
88. S'j/pra, 415. sible action. See Com. v. Gray, 129 Mass.
89. 1 Chamberlayne. Evidence, 557. 474 (1880).
90. Rupra, 118. 95. Lane v. Moore, 151 Mass. 87 (remote-
91. Com. v. Coe, 1 15 Mass. 481, 505 (1874). ness of declarations showing mental con-
92. Com v. CJray. 129 Mass. 474 (1880). dition) (1890) ; .State v. Pike, 49 N. H. 399
93. 1 Chamberlayne, Evidence, 558. (1870).
145 APPELLATE COURTS. 30S-310
court in a civil 96 or criminal 97 proceeding;- unless the judge sees fit to
permit a revision. 98 But in respect to failure to exercise the faculty of reason
in making an inference of fact the appellate court stands to the judge presiding
at nisi ijrius in much the same position that the presiding justice himself occu-
pies as regards the trial jury. To fail in exercising the reasoning faculties
through ignorance, prejudice, lack of competent evidence upon which a finding
could be based, 9 " or for any other cause, is in violation of the rule of substantive
law requiring the use of reason and is subject to correction on review at the
hands of an appellate court.
308. [Action of Appellate Courts] ; Facts Conditioning Admissibility. 1
While the action of the presiding judge in submitting evidence to the jury is
not reversible in an appellate tribunal, if the finding of a preliminary fact
necessary to admissibility is logically permissible, the party may ask that the
jury in discharging their function of weighing the evidence submitted, should
reverse the rinding of the judge as to the existence of the preliminary fact.
The usual effect of the ruling that evidence, the admissibility of which is con-
ditioned upon the existence of a preliminary fact, may be laid before the jury,
is merely that sufficient facts have been made to appear to convince the judge
that the jury may, within the bounds of reason, find that the preliminary fact
exists. 2 The ruling merely places the matter before the jury. It fails to give,
in any sense, to the existence of the conditioning fact the probative weight
of the judge's unqualified endorsement.
309. [Action of Appellate Courts] ; Competency of Witnesses. 3 For exam-
ple, the rinding as to the competency of a witness is not final; 4 where the evi-
dence is reported for the purpose, but will be revised though with hestiancy
and caution. 5
310. [Action of Appellate Courts] ; Administrative Function of Trial Judge. 6
It is, as has been .said, 7 the essential characteristic of judicial administration
that it is governed by the use of enlightened reasoning. The necessity for em-
ploying legal reason is the only limitation upon its exercise. H$ot the result,
but the process of reaching it. is in the control of an appellate court. If the
96. Walker v. Curtis. 116 Mass. 98 (gemi- 2. Com v. Robinson, 146 Mass. 571 (1888).
ineness of papers) (1874) : O'Connor v. Hal- 3. 1 Chamberlayne, Evidence. 560.
linan, 103 Mass. 547 (competency of wife as a 4. Udy v. Stewart, 10 Chit Rep. 501 (1886)
witness) (1870). It has been properly held, however, that un-
97 Com. v. Robinson, 146 Mass. 571 (gen- less some rule of law has been wrongly ap-
eral scheme or plan) (1888): Com. v Gray, plied, the finding is not a subject of excep-
129 Mass. 474 (1880); Com. v. Culver. tions. Com. v. Mullins, 2 Allen (Mass.) 295
126 Mass. 464 (confession voluntary) (1879). (1861).
98. Com. v. Robinson, 146 Mass. 571 5. Peterson v. State, 47 Ga. 524 (1873).
(1888) 6. 1 Chamberlayne, Evidence, 561.
99. Com. v. Williams, 105 Mass 62, 68 7. Kxpra, 74.
(1870). 8. Chicago, etc. tty. Co v. Shenk, 131 111.
1. 1 Chamberlayne, Evidence. 559. 283, 23 N. E. 436 (1890).
311-313 FiTBTHEBANCE OF JUSTICE. 146
administrative act of the trial judge is defensible on grounds of legal reason-
ing, it will stand. If, on the contrary, it is not supportable on these grounds
the discretion is said to be " abused " and the action is reversed. 8
311. [Action of Appellate Courts] ; Executive Function of Trial Judge. 9
The action of a presiding judge in enforcing obedience to his orders or in pro-
tecting the administration of justice is part of his function as judge, and, so
long as his acts are done under the guidance of reason, their propriety is not
reversible in an appellate court. 10 It has even been held that if the trial judge
had jurisdiction his action, reasonable or unreasonable, will not be re-
versed. 11
312. [Action of Appellate Courts] ; All Intendments Made in Favor of Trial
Judge. 12 .Xo mere irregularities, not prejudicing the substantive rights of the
person claiming relief against an order for contempt, will be permitted to affect
the action of the trial judge. 13 For a reversal, the difficulty with prior pro-
ceedings must be so radical that they are, in whole or in part, void. 14 Every
fact found by the trial judge will be assumed to be correct, all intendmeuts
being made in its favor. 15 Indeed, it might fairly be said that questions of
fact will not be deemed reviewable at all, 16 so long as the rules of reason are
observed, 17 including, as seems proper, within the term " matter of law,' 7 any
violation of the rule that in all judicial proceedings reason must be em-
ployed. 18 Revision properly extends merely to matters of law. 19
313. [Action of Appellate Courts] ; Powers of an Appellate Court. 20 In
matters of contempt an appellate court has the same power as in other error in
law. 21 Regarding questions of fact wherever reason has been followed by the
9. 1 Chamberlayne, Evidence, 562. C. 578, 41 S E. 784 (1902). But see In re
10. State v. Archer, 48 Iowa 310 (1878): Deaton, 105 X C. 59, 11 S. E. 244 (1890);
Bagley v. Scudder, 06 Mich. 97, 33 X W. 47 State v. McKinnon. 8 Or. 487 (1880).
(1887); Watrous v. Kearney, 79 N. Y. 496 17. The facts found by the judge in con-
(1880) [affirming (X. Y. ) 11 Hun 584]: tempt proceedings are not reviewable on ap-
Murray v. Berry, 113 N. C 46, 18 S. 'E. 78 peal, except for the purpose of passing upon
(1893); West v. State, 1 Wis. 209 (1853). their sufficiency to warrant the judgment.
11. In re Consolidated Rendering Co, 80 Green v. Green, 130 .N. C. 578, 41 S. E. 784
Vt. 55, 66 Atl. 790 [affirmed in 207 U S. 541, (1902).
28 S. Ct. 178] (1907). 18. Green v. Green, 130 X. C. 578, 41 'S. E.
12. 1 Chamberlayne. Evidence, 563. 784 (1902).
13. Indiana. Hawkins v. State, 126 Ind. 19. State v Seaton. 61 Iowa 563, 16 X. W.
294. 26 -\. E. 43 (1890). 73(i (1883); Bradley v. Veazie; 47 Me. 85
14. Drady v. Dist. Court of Polk County (1860).
(Towa 190o), 102 X. W. 115: Ex p Keeler, \eic York. In re Blumenthal. 22 Misc.
45 S. C. 537, 23 S. E. 865, 55 Am. St. Rep. 704, 50 N. Y. Suppl. 49 (1898) [affirming 22
785, 31 L. R. A. 678 (1895) Misc. 764. 48 X. Y. Suppl. 1101 (1897)].
15. Gunn v Calhoun, 51 Ga. 501 (1874); 20. 1 Chamberlayne, Evidence. 566, 567.
Park v Park. 80 X. Y. 156 (1880). 21. Questions finally determined by the ap-
16. TTolIv Mfsr. Co. v. Venner. 143 X. Y. 639, pellate court are res adjudicata. Ryan v.
37 X. E. 648 (1894) ; Green v. Green, 130 X. Kingsbery, 89 Ga. 228, 15 S. E. 302 (1892).
APPELLATE COURTS.
314
trial judge there will be no reversal merely because the exercise of reason
might have led the appellate court to a different conclusion. 22
314. [Action of Appellate Courts] ; Modification of Action. 23 Instead of
reversing, the appellate court may modify the order of t~e trial judge, 24 as by
reducing a tine imposed by him 25 to the statutory limit. 26 The appellate
court may make any orders incidental to carrying out its decree; e.g., pro-
vide for enforcing a modification. 27
22. In re Chesseman, 49 X. J L. llo, 6 X \'. Suppl. 314, 52 N. Y. St. Rep. 516
Atl. 513, 60 Am. Rep 596 (1886).
23. 1 Chamberlayne, Evidence, 568, 569.
24. Turner v. Com. (Ky.), 2 Mete. 619
(1859j.
25 Buffalo Loan. Trust, etc., Co. v. Medina
Gas, etc., Co., 74 X Y. Suppl. 486, 68 App.
Div. 414 il902).
26. Luedeke v. Coursen, 3 Misc. 559, 23
(1893).
As to costs in the appellate court, see
Tucker v. Oilman, 37 N. Y. St. Rep. 958, 14
N. Y. Suppl. 392, 20 N. Y. Civ. Proc. 397
(1891).
27. Oilman v. Byrnes, 10 N. Y. Civ. Proc.
46 (1886).
CHAPTER VIII.
JUDICIAL KNOWLEDGE.
Knowledge, 315
Knowledge of law ; in general, 316.
Common and judicial 1,-non-ledge, 317.
Judicial vs. personal knowledge ; judge, 318.
judge as witness, 319.
jury, 320.
Scope of judicial knowledge of law, 321.
Judicial knowledge of common law; national courts, 322.
state and provincial courts, 323.
Judicial knowledge of international law, 324.
Judicial knowledge of law merchant, 325.
Judicial knowledge of written law ; extension and intension, 326.
treaties, 327.
national courts, 328.
state and provincial courts, 329.
local courts, 330.
amendment and repeal, 331.
what statutes <ire public, 332.
How judicial knowledge of law is acquired, 333.
Judicial know-ledge of the results of law, 334.
official proceedings, 335.
executive department ; nation, 336.
state 337.
public surveys, 338.
rules and regulations; nation, 339.
signatures and seals: national. .'J40.
legislative department ; general facts, 341.
judicial department ; general facts, 342.
attorneys and counsel, 343.
court records, papers, etc., 344.
315. Knowledge. Pacts as to which no proof need be offered may be
designated, respectively, as judicial knowledge and common knowledge. Judi-
cial knowledge is that which the judge has, or is assumed to have by virtue of
his office; virtiite officii. It covers, in main, propositions of law and. to a
limited extent, facts established as the direct result of legal provisions. Com-
148
149 KNOWLEDGE OF LAW. 310-318
moii knowledge is the property of judge and jury alike, equally with any
other well informed members of the community. It is confined to matters of
fact. 1 Common knowledge may be divided into (a) that which is general
among the community to which the generic term " common " may be deemed
appropriate, and (b) the technical knowledge which is general among mem-
bers of a class, trade or profession. This class or species of knowledge may be
designated as special. 2
316. Knowledge of Law; In general. 3 To announce and enforce the pro-
visions of a certain code of laws, subsantive or procedural, is one of the judicial
powers of the court; * knowledge of that code is therefore an essential attribute
of the office. Cognizance of these rules of law is not, like that of facts in gen-
eral," something which comes to the judge from wihout, i.e., dehors the' judi-
cial office. Knowledge of domestic law is intrinsic in the judge, whose action,
in this respect, binds the jury and is, for the purposes of the case, final as to
the rights of the parties. 6
317. Common and Judicial Knowledge. 7 Essential differences exist be-
tween the knowledge which a judge has of the domestic law of the jurisdiction
which he is set to enforce, and that general information which is fairly to be
designated as common knowledge. 8 Knowledge of notorious facts, i.e., com-
mon knowledge, the judge may be assumed to share with other intelligent men.
But he may decline to notice the existence of such facts and may require that
they be proved. Knowledge of domestic law the judge must have. He has
no option or discretion as to whether he will have it or not. It is his elementary
duty to know the rules, to state them for the guidance of the jury and fully to
determine, for the purposes of the trial, the legal rights of the parties. He is
not at liberty to decline to rule as to his judicial knowledge until the parties
supply him with actual information, as he might do in a matter of common
knowledge: he must rule. The parties have not only the right to insist that
the judge should act, but to insist that he shall act right. 9 Should he fail to
do so, it is error; for which redress will be furnished on taking appropriate
steps. 1 "
318. Judicial vs. Personal Knowledge; Judge. 11 Judicial knowledge is not
1. 1 Chamb., Ev., oTO. and "judicial notice" are used practically
2. 1 ("hanilj. Ev., f>70. 870 et seq. indiscriminately, to cover two very dissimilar
3. 1 Chamberlayne, Evidence, 571. set of facts those which the judge knows
4. I Chamh , Ev.. Jj 69, 165. qua judge and those facts which every one
5. 1 Chamb., Ev.. 6. 7. knows. It has been deemed advisable to
6. 1 Chamb., Ev.. 571. disassociate these two classes of fact from
7. 1 Chamberlayne. Evidence. 572. under the common designation of " judicial
8. 1 Chamb., Ev., 601 et seq. knowledge." reserving the phrase exclti-
9. 1 Chamb.. Ev., 3 So et seq. sively for those which are part of the ju-
10. 1 Chamb., Ev . 572. dicial office 1 Chamb.. Ev.. 578
" Judicial Notice." As usually employed. 11. 1 Chamberlayne, Evidence. 574.
" judicial knowledge," '' judicial cognizance "
318
JUDICIAL KNOWLEDGE.
150
the personal knowledge of the judge. 12 To a certain extent a presiding judge
may use his knowledge of facts provided these are not part of the res gestw of
a case. lie may properly cognize facts which are notorious in the community
because arising out of celebrated or protracted litigation 13 or known to him,
because established in judicial proceedings before him in the same 14 or an-
other lf> case. He may even remember that he has done something now on
record in his court. 16 In none of these cases, is, it, strictly speaking, the
particular 17 knowledge of the judge, as an individual. That a presiding jus
tice cannot give judgment on his personal and private knowledge is well estab-
lished. 18 Where he possesses particular knowledge 19 which is important to
the cause of justice it is the duty of the judge to take the stand as a witness. 20
even when presiding at the trial. 21
A judge may judicially know the law 22 or procedure of an American state,
the law 23 or procedure of a ^foreign country, or facts notorious in the limited
professional community of which the judge is a member. 24 In a sense, this
12. Steenerson v. K. Co., 69 Minn. 353, 72
N. W. 713 (1897).
13. Davies v. Hunt, 37 Ark. 574 ( 1881 ) .
14. Robertson v. Meyers, 7 U. C. Q. B. 423
(1850).
15. People v. Lon, Yeck, 123 Cal. 246, 55
Pac. 984 (1899), Chinese perjury; Bryan v.
Beekley, Litt Sel. Cas. (Ky.) *91, 12 Am.
Dec. 276 (1809); Graham v. Williams, 21
La. Ann. 594 (1869), foreign statute: Hatch
v. Dunn, 11 Tex. 708 (1854), colonization
contract: U S. v. 'L'eschmaker, 22 How. (U.
S.) 392, 16 L. Ed. 353 (1859), foreign statute,
land office procedure.
16. Secrist v. Petty, 109 111. 188 (1883),
signed paper: Robertson v. Meyers, supra:
17. 1 Chamb., Ev., 570.
18. Bank of British North America v.
Sherwood, 6 U. C. Q. B. 213 (184!)) : Fox v.
State, 9 Ga 373, 376 (1851), credibility:
Dines v. People, 39 111. App. 565 (1890);
Stephenson v. State, 28 Ind. 272 (1867), age
from inspection ; State v. Edwards, 19 Mo. 675
(1854), previous conviction; Smith v. Moore,
3 How. (Miss.) 40 ( 1838), person has a mania
a potit; State v. Chase County School Dist.
No. 24, 38 Neb. 237. 56 N. W. 701 (1893),
false statements in pleadings: Purdy v Erie
R. Co., 162 X. Y 42, 56 N. E. 508, 48
L. R. A. 669 (1900): Cassidy v. McFarland,
139 N. Y. 201. 34 N. E. 893 (1893), case
suitable for a reference: Amundson v. Wilson,
11 N. D. 193. 91 N. W. 137 (1902), witness
cannot be excluded because he proposes to
,estify contrary to the court's knowledge;
State v. Horn, 43 Vt. 20 (1870), law of
another state; Halaska v Cotzhausen, 52 Wis.
G24, 9 N. W. 401 ( 1881 ) , judge's knowledge of
legal services rendered in a cause tried before
him, considered.
19. Brown v. Lincoln, 47 N. H. 468 ( 1867 ) ,
where a judge familiar with a signature ad-
mitted it a prima facie genuine; Wisconsin
Central Ry Co. v. Cornell Univ., 49 Wis. 162
(1880), judge's personal knowledge of a
portion of a state considered; Griffing v.
Gibbs, 2 Black. ( U. S.) 519, 17 L. ed 353
(1862). "The justice cannot act from his
own knowledge and call that knowledge
proof." Rosekrans v. Antwerp, 4 Johns. 239
(1809), sickness of witness. For a magis-
trate to act precisely on his personal knowl-
edge, as by excluding a witness because he
proposes to testify to a fact, which, as
the judge says, Shafer v. Eau Claire, 105,
Wis. 239, 81 N. W. 409 (1900) is "contrary
to what I know to be the fact from my own
personal knowledge." constitutes error.
20. Hoyt v. Russell, 117 U. S. 401 (1886).
21. 1 Chamb., Ev., 574.
22. Herschfeld v. Dexel, 12 Ga. 582 (1853) ;
Rush v. Landers. 107 La. 549, 35 So. 95, 57
L. R. A. 353 (1901) ; State v. Rood, 12 Vt.
396 (1840).
23. Arayo v. Currel, 1 La. 528, 20 Am. Dec.
286 (1830).
24. People v. McQuaid, 85 Mich. 123, 48
N. W. 161, value of unofficial publications
(189-1) : Day v. Decousse, 12 L. C. Jur. 265
(1868), lawyer out of practice.
151 PEKSO^AL KNOWLEDGE. 319, 320
knowledge is personal to the judge, lie caimot be required to know such
facts, as would be the case were the law or procedure domestic. More prop-
erly, however, the knowledge is used, as a rule, to expedite the judicial business
before the court, 25 and is a fair exercise of the function of administration. 26
319. Judicial vs. Personal Knowledge; Judge as Witness. 27 The early Eng-
lish practice authorized a judge to testify as a witness even before a jury at a
trial over which he was himself presiding or before a court of which he was a
member. 28 Later, in England, doubts as to the propriety of such a course
were expressed, 29 especially where the judge which testifies is sole judge pre-
siding at the trial. 30 The courts of the United States receive the evidence of
a judge, whether that of a single judge presiding at the trial, 31 or one of a
number of judges before whom a trial is being held. 32 Grave doubts as to the
propriety of the practice have, however, been entertained. 33
320. Judicial vs. Personal Knowledge; Jury. 34 The law is now settled that
a juryman is not at liberty to use his individual knowledge, to act on his own
knowledge as to probative or deliberative facts. 35 Such facts should be given
in evidence by the juryman as a witness. 36 The right of a party litigant to
require the evidence of a member of the panel which is trying his case where
the evidence is reasonably necessary to proof of the proponent's contention,
may be regarded as undoubted, either in England 37 or in the United States; 38
although it has been held that a juryman may refuse to tesify if so minded. 39
After testifying, the witness may return to his place on the panel. 40
25. 1 Chamb., Ev., 544 et seq. barrassed in deciding between the judge and
26. 1 Chamb, Ev., 574. other witnesses. Powers v. Cook (Okla.
27. 1 Chamberlayne, Evidence, 575-579. 1915), 149 Pac. 1121, L. R. A. 1915 F
28. Femriek's Trial, 13 How. St. Tr. 537, 766.
667 (1696). See 1 Chamb., Ev., 575 34. 1 Chamberlayne, Evidence, 580-582.
29. Duke of Buccleuch v. Metropolitan 35. Collins v. State, 94 Ga. 394, 19 S. E.
Hoard, L. R. 5 E. & 1. App. 429, 433 ( 1872). 243 (1894) ; Carver v. Hornburg, 26 Kan. 94
30. K. v. Petrie, SOOnt. 317, 323 (1890). (1881); Schmidt v. New York Union Mut.
31. State v. Barnes, 34 La. Ann. 395, 399 F. Ins. Co., 1 Gray (Mass.) 529 (1854);
(1882). Wharton v. State, 45 Tex. 2 (1876); John-
32. State v Duffy, 57 Conn. 525, 18 Atl. son v. Superior Rapid Transit R. Co., 91 Wia.
7!)1 (1889); People v. Dohring, 59 X. Y. 233, 64 X. W. 753 (1895).
374, 379 (1874). See also cases cited 1 36. 1 Chamb., Ev., 580 and cases cited
Chamb., Ev., 576. in preceding note.
33. Dabney v. Mitchell, 66 Ala. 495, 503 37. Heath's Trial, 18 How. St. Tr. 1, 123
(1880); Morss v. Morss, 11 Barb. (X. Y.) (1744).
510, 515 (1851). See 1 Chamb., Ev., 576. 38. People v. Dohring, 59 X. Y. 374
For discussion of the objections to a judge's (1874) ; Chicago, etc., R. Co. v. Collier, 1
testifying as a witness, see 1 Chamb., Ev., Xeb. (Unof.) 278, 95 X. W. 472 (1903); and
577, 578, 579. A presiding judere in a jury cases and statutes cited in notes to 1 Chamb.,
trial cannot testify in a suit pending before Ev., 581.
him as such a practice would lead to various 39. Manley v Shaw, Car. & M. 361 (1840).
unseemly situations. The judge could not de- 40. Fitzjames v. Moys, 1 Sid. 133 (1663).
cidc properly the admissihility of questions See 1 Chamb., Ev.. 581. As to objections
put to him and where there was a conflict to such evidence, see Morss v. Morss, 11 Barb,
in the testimony the jury would be em- (X. Y.) 510; 1 Chamb. ,.Ev., 582.
321,322 JUDICIAL KNOWLEDGE. 152
321. Scope of Judicial Knowledge of Law. Tribunals of general jurisdic-
tion enforce and apply, and, therefore, judicially know, not only the general
body of statutes enacted by the law-making body of tbe forum, but also any
laws constitutionally promulgated and adopted by the paramount national
authority under which the court exists. Tribunals of limited or local juris-
diction as county, circuit, police or city courts are required to know the local
regulations, municipal ordinances, town by-laws and the like which it is their
duty to administer. This is the extent or extension of the court's knowledge
of law. Courts may be roughly classified, in this connection, as (a) national,
(b) state or provincial, (c) local; and the laws as to which knowledge is
predicated, into unwritten and written. 41
322. Judicial Knowledge of Common Law ; National Courts. 42 Courts of
any national jurisdiction using the English system of jurisprudence judicially
know the unwritten common law of England. This rule applies to the courts
of the United States, as the common law existed prior to the independent of
the American States, legal doctrines adopted in England since that date not
being judicially known. 43 Such a court knows the rules and principles of
equity, 44 while courts sitting in equity know the propositions of civil 45 and
criminal 4C law administered by the common law courts. National courts
know the laws of states, colonies or provinces over which they exercise appel-
late jurisdiction. Thus, the supreme court of the United States, exercising
appellate jurisdiction from the highest court of a state, knows the law of that
state; 47 but judicially knows as to the law of states other than that whose
action is under review, merely to the same extent that the court appealed from
would have had such knowledge. 48 Every federal court, however, in its orig-
inal jurisdiction knows the laws, 49 written, 50 or unwritten, of any state, 51 or
territory, including the District of Columbia,' which it is called upon to ad-
minister, 52 either as a matter of original jurisdiction or of jurisdiction ac-
quired by removal from a state court. 53 And it necessarily follows from this
rule that the Supreme Court of the United States when reviewing tfie judgment
rendered in a federal court judicially knows the law of all the states and terri-
tories of the Union. 54
41. 1 Chamb., Ev , 583. 48. Lloyd v. Matthews, 155 U. S. 222, 15
42. 1 Chamberlayne, Evidence. 584, 585. Sup. Ct. 70, 39 L. ed. 128 (1804).
43. Liverpool, etc., Steam Co v. Phenix 49. U. 8. v. Chaves, 159 U. S. 452. 16 Sup.
Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 Ct. 57, 40 L. ed 215 (1895).
L. Ed. 788 (1888). 50. Lamar v. Micou, 114 U. S. 218, 5 Sup
44. Nimmo v. Davis, 7 Tex. 26 (1851). See Ct. 857, 29 L. ed. 94 (1884).
Garzot v. Rios De Kubio (Porto Rico 1908), 51. Liverpool, etc., Steam Co. v. Phenix Ins.
209 U. S. 283. 28 Sup. Ct. 548, 52 L. ed. 794. Co., supra.
45. Southgate v. Montgomery, 1 Paige (N. 52. See Wilson v. Owens, 30 C. C. A. 257, 86
Y.) 41 (1828). Fed. 571 (1898).
46. 1 Chamb., Ev., 584, 53. 18 U. S. St. at L. 472, 6 (U. S. Comp.
47. Hanley v. Donoghue, 116 U. S. 1, 6 St. 1901, p. 512). ,
Sup. Ct. 242, 29 L. ed. 535 (1885). 54. Lamar v. Micou, supra. I Chamb., Ev ,.
153
COMMON LAW.
323
323. Judicial Knowledge of Common Law; State and Provincial Courts. 55
The state courts of the American Union know the common law of England, 86
including early English general statutes applicable to their condition, and the
principles of equity jurisprudence, 57 which was in force at the time of the
separation from the mother country. Rules of law adopted in England since
that time are not judicially known by the American courts. 5 * Common law
courts know, when sitting at law, the rules and principles of equity jurispru-
dence 59 and know, when sitting in equity, the rules of ordinary civil and
criminal law ; 60 but common law courts do not know, in either capacity, the
rules of the ecclesiastical law. 01 A state court notices the unwritten law of
the forum, 62 including the unwritten laws of any country, 63 state/* 4 or terri-
tory, 65 which have been operative in any portions of the domain which now
constitutes the jurisdiction of the forum. 66 Unless required to do so by stat-
ute, 67 the courts of an American state do not judicially know the unwritten or
non-statutory law of a sister state. 6S Neither the courts of England, 69 nor
those of the United States, 70 judicially know 7 the laws of any foreign country. 71
.Matters of notoriety among the legal profession may be treated by the courts as
matters of common knowledge. 72
5.S.~>. \\ hat courts may take judicial notice.
See Note Bender Ed. 64 X Y. 272.
55. 1 t'hamberlayne, Evidence, 586-590.
56. Eureka Springs R. Co. v Timmons, 51
Ark. 459, 11 S. \V. 459 (1888); Stokes v.
Macken, 62 Barb. (N. Y.) 145 (1861)
57. Ximmo v. Davis, 7 Tex. 26 (1851).
58. \\ickersham v. Johnston, 104 Cal 407,
-i>8 Pac. 89, 43 Am. St. Rep. 118 (1894)
59. Ximmo v. Davis, supra.
60. Southgate v. Montgomery, 1 Paige ( N.
Y.) 41 (1828).
61. De Grandmont v. La Societe des Arti-
sans, etc., 16 Quebec Super Ct 532 (1899).
62. Gaylod's Appeal, 43 Conn 82 ( 1875).
63. Doe v. Enslava, 11 Ala. 1028 (1847);
Wells v. Stout, 9 Cal. 480 (1858) ; Chouteau
v. Pierre, 9 Mo. 3 (1845); Matter of Hall,
61 X. Y. App. Div. 266, 70 X. Y Supp 406
(1901).
64. State v. Sais, 47 Tex. 307 (1877);
Xorthwestern Bank v. Maehir, 18 \V Ya. 271
(1881).
65. Crandall v. Sterling Gold Min Co., 1
Colo. 106 (1868).
66. 1 Chamb., Ev., 586.
67. Hale v. Xew Jersey Steam Xav. Co , 15
Conn. 539, 39 Am. Dec 398 (1843).
68. Cox v. Morrow, 14 Ark. 603 (1854);
Hendryx v. Evans, 120 Iowa 310, 94 X. W.
853 (1903): Phenix Tns. Co v. Church. 59
How Pr. (X Y.) 293 (1880); Bollinger v.
Gallagher, 170 Pa. St. 84, 32 Atl. 569 ( 1895) ;
and cases cited 1 Chamb., Ev., 587, note 2.
The court will not take notice of the lawa
of another state but will presume that the
common law prevails there and that it is the
same as that in the state of the forum.
Maloney v. Winston Brothers Co., 18 Idaho
740, 111 Pac. 1080, 47 L. R. A. (X. S.) 634
(1910).
69. Godard v. Gray, L. R 6 Q. B. 139,
40 L. J. Q B. 62, 24 L. T. Rep. N. S. 89,
19 Wkly. Rep. 348 (1870).
70. Dianese v. Hale, 91 U. S. 13, 18
(1875).'
71. Bowditch v. Soltyk, 99 Mass. 136
(1868) ; Hall v. Costello, 48 N. H 176, 2 Am.
Rep. 207 1 1868) : Liverpool, etc., Steam Co. v.
Phenix Ins. Co., 129 U. S. 397. 9 Sup. Ct. 469,
32 L. ed. 788 (1888): and cases cited 1
Chamb. Ev., 589.
72. 1 Chamb.. Ev.. 590: Matter of Hall,
61 X. Y. App Div. 266. 70 N. Y Supp. 406
(1901). The court will not assume that in
Cuba which inherited the Spanish system
of law the law is that a promise to repair
defective machinery throws the risk on the
master until the time for repair has gone
by as this is evidence of the great considera-
tion with which a plaintiff is treated in
this country but is not a necessary incident
of all civilixed codes. The court remarks
that *' It may be that in dealing with rudi-
324,325
JUDICIAL KNOWLEDGE.
15-i
324. Judicial Knowledge of International Law. 73 The courts of a country
know the principles of international law to which the executive department of
the forum has assented. 74 Prize and admiral r courts judicially know inter-
national law. 75 They know the maritime regulations adopted by the commer-
cial nations as the law of the sea. 76 A notary public is judicially known by
the courts as existing under the law of nations, 77 and they will give effect to
his seal, 78 or jurat taken before him without seal, 79 when attached to an offi-
cial act shown to have been valid according to the law of the domicile of the
notary. 80 The same effect will be given his act whether he is acting in a
colony, foreign or domestic; 5 * 1 or in a foreign country 82 or. -in another state
of the Union, 83 or within the jurisdiction of the court itself. 84
325. Judicial Knowledge of Law Merchant. 85 The law merchant is part
of the common law and, as such, is judicially known. 86 The basis of the law
merchant is the civil law, prevalent on the Continent of Europe, and a general
uniformity exists, with regard to mercantile affairs, between the common and
the civil systems of law. Of this nature are laws relating to partnership, 87
negotiable instruments, 88 or banking. 89
mentary contracts or torts made or commft-
ted abroad, such as promises to pay money
for goods or services, or battery of the person
or conversion of goods courts would assume
a liability to exist if nothing to the contrary
appeared.'' Cuba Railroad Co. v Crosby,
222 U. S. 473, 32 Sup. Ct. 132, 38 L R. A.
(X. S.) 40 (1912).
73. 1 Chamberlayne, Evidence, 591.
74. Ocean Ins Co. v Francis, 2 Wend. (N.
Y.) 64, 19 Am. Dec. 549 (1828) : Strither v.
Lucas, 12 Pet. (U. S.) 410, 436, 9 L. ed.
1137 (1838); The Scotia, 14 Wall. (U. S.)
171 (1871). See also The Paquete Habana,
175 U. S. 677, 20 bup. Ct. 290, 44 L. ed 320
(1899), 1 Chamb., Ev., 591.
75. The New York, 175 U. S. 187, 20 Sup.
Ct. 67, 44 L. ed. 126 (1899).
76. The New York, supra. See also Liv-
erpool, etc., Steam Co. v. Phenix Ins. Co.,
supra; Sears v. The Scotia, supra.
77. 1 Chamb , Ev., 591 Recognition does
not extend to the power to attest deeds.
Neese v. Farmers' Ins. Co.. 55 Towa 604
(1881),;
78. Pierce v. Tndseth, 106 U. S. 546, 1 Sup.
Ct. 418. 27 L. ed 254 (1882).
79. Fhielmann v. Burp, 73 111 293 (1874).
80. Neese v Farmers' Ins. Co., supra ; Orr
v. Lacy. 4 McLean (U. P.) 243, IS Fed. Cas
No. 10, 589 (1847).
81. Brooke v. Brooke, 17 Ch. D. 833, 50 L.
J. Ch. 528, 44 L. T. Rep. (N. S.) ) 512, 30
Wkly Rep. 45 (1881)
82. Pierce v. Indseth, supra; Orr v. Lacy,
supra.
83. Denmead v. Mack, 2 MacArthur (D. C.)
475 (1876); Carter v. Burley, 9 N. H. 558
(1838); Halliday v. McDougall, 20 Wend
(N. Y.) 81 (1838).
84. Porter v Judson, 1 Gray (Mass.) 17">
(1854) ; Brown v. Philadelphia Bank. ,Sei::
& R. (Pa.) 484, 9 Am. Dec. 463 (1821). 1
Chamb., Ev., 591. Special powers co:,
ferred by domestic law, such as right to
administer affidavits must be proved in the
ordinary way Teutonia Loan, etc., BIdg. Co
v. Turrell, 19 Ind. App. 469, 49 N. E. 852, 65
Am. St. Rep. 419 (1897). The validity of
the acts of foreign officials discharging func-
tions similar to those of a notary must be
established by evidence. Chanoine v Fowler,
3 Wend. (N. Y.) 173 (1829).
85. 1 Chamberlayne, Evidence, 592.
86. Jewell v Center, 25 Ala 498 (1854);
Davis v Hanly. 12 Ark. 645 (1852); Munn
v. Bnrch. 25 111. 35. 38 (I860): Reed v
Wilson, 41 N. J. L. 29 (1879) : Edie v. East
India Co, 1 W. Bl 295, 2 Burr 1216 (1761)
87. Cameron v Orleans, etc , R. Co., 108 La.
83. 32 So. 208 (1902)
88. Sassoer v. Farmers' Bank. 4 Md. 409
(18531 : Reed v Wilson, supra.
89. Brandao v. Barnett, 3 C. B. 519. 54
155 WKITTEX LAW. - 326, 32T
326. Judicial Knowledge of Written Law; Extension and Intension. Writ-
ten laws may be conveniently divided into (a) constitutions, (b) public statutes,
(c) private statutes and (d) municipal regulations. All tribunals in a juris-
diction, regardless of grade, judicially know the organic law, or constitution.
Courts of national, provincial or state jurisdiction judicially know, in addition
to the constitution, such statutes as legislation in the forum has directed them
to know. Usually these are only public statutes. Occasionally knowledge
is required also of private statutes. Judicial knowledge of local or municipal
regulations is confined to the local tribunals of limited jurisdiction whose dis-
tinctive duty it is to enforce such minor enactments ; but who are, at the same
time, charged with judicial knowledge of the more general statutes known to
the superior courts. Such is the judicial knowledge of written law in exten-
sion; the breadth of its application. 90 In intension, or depth, this judicial
knowledge of written law covers the following particulars: (a) The exist-
ence of the law in question, including the date at which it went into effect, 91
was suspended 92 or repealed ; 9:5 so far as these facts are ascertainable from
the legislative records themselves or by a resort to customary sources of infor-
mation regarding official proceedings. Judicial knowledge is not demanded
when it can be acquired only by ascertaining a fact in pais. 94 The burden of
establishing facts in pais rests on the party claiming their existence. 95 (b) A
knowledge as to the direct results accomplished by the statute. 96 (c) Knowl-
edge of facts recited or recognized in the written law will be judicially known
to any court whose knowledge, in extension, covers the written law itself. 97
327. Judicial Knowledge of Written Law; Treaties. 98 By constitutional
provision, treaties legally made by the national executive are declared to be
K. C. L. 51!), 12 Cl. & F. 787, 8 Eng. Reprint 94. Stein v. Morrison, 9 Idaho 426, 75 Pac.
1(522 (1846). A judge is not required to 240; .Shaw v. Xew York Cent., etc., R. Co-
hear evidence as to the law merchant to an 85 X. V. App. Div. 137, 83 X. Y. Supp. 91
effect contrary to his judicial knowledge. (1903); Doyle v. Village of Bradford, 90
Jewell v Center, supra. 111. 416 (1878): Whitman v. State, 80 Md.
90. 1 Chamb., Ev . 593. 410, 31 Atl. 325 (1895) ; 1 Chamb., Ev., 594
91. Moss v. Sugar Ridge Tp., 161 Ind. 417, and cases cited.
68 X. E S'.6 (1003); Ottman v. Hoffman, 95. Miller v. Com., 13 Bush (Ky.) 731
7 Misc. (X. Y.) 714, 28 X. Y. Supp. 28 ( 1878) ; People v. State Land Office, 23 Mich
(1894) ; 1 Chamb., Ev., 594 and cases cited 270 (1871*.
The court may take judicial notice of the 96. Calloway v. Cossart, 45 Ark. 81 (1885);
history of a statute and the circumstances La Salle Co. v. Milligan, 143 111 321 (1892);
surrounding it. Industrial Commission v. Grant v State, 33 Tex. Cr. R. 527. 27 S. W.
Brown, Ohio St. 110 X. E. 744. L. R A. 1016 127 (1804) : 1 Chamb. Ev., 595 and cases
B 1277 (1915). cited.
92. Bernstein v. Humes, 60 Ala. 582. 31 97. Boyd v. Conklin, 54 Mich. 583. 20 X. W.
Am. Rep. 52 (1877) : Buckingham v. Walker. "05. 52 Am. Rep 831 (1884* : Watkins v. Hol-
48 Miss. 609 (1873). man. 16 Pet. (U S.) 25. 55, 56, 10 L. ed.
93. State v. O'Conner, 13 La. Ann. 486 S73 (1842); 1 Chamb., Ev., 506 and cases
(1858); Springfield v. Worcester, 2 Cush. cited.
i Mass ) 52 (1848). 98. 1 Chamberlayne, Evidence, 597.
328 JUDICIAL KNOWLEDGE. 156
the supreme law of the laud. The judges of all American courts, state " or
federal, 1 will, therefore, kuow of the existence and provisions ~ of treaties with
foreign nations or Indian tribes. 3 Protocols and schedules attached to a
treaty, 4 its date, 5 the date of its ratification and all other facts necessary to
its legal validity have been deemed part of the treaty itself. 7
328. Judicial Knowledge of Written Law; National Courts. 8 Tribunals of
national jurisdiction know judicially the written constitution which formulates
the fundamental law of the sovereignty under which they are acting, and the
constitution of each province or state within its jurisdiction. The federal
courts judicially know the Constitution of the United States and its amend-
ments. 9
Public Statutes. National tribunals know judicially the public statutes
passed by the national legislature. As English courts know the acts of Parlia-
ment, so the federal courts of the United States judicially know the public
statutes enacted by Congress. 10 A national court will also know judicially
the public statutes of every province or state, whose jurisdiction it administers
by virtue of an appellate jurisdiction. This includes the then existing statutes
of prior governments which at any time exercised sovereignty over the territory
in question; whether the control were colonial, 11 provincial, or in some
other form. 12
Private Statutes. A court of national jurisdiction does not judicially
know the private acts of the national legislature, nor the private acts of the
state whose public statutes it knows, 13 except where the statute expressly re-
quires such knowledge. 14
Foreign Statutes. The national courts of a country do not judicially know
99. La Rue v Kansas Milt. L. Ins Co., 68 supra. A superseded treaty, being no longer
Kan. 539, 75 Pac. 494. law, is not judicially known Ryan v. Knorr,
1. Knight v. rnited Land Assoc , 142 U. S. 19 Hun (X. Y ) 540 (1880).
161, 12 Sup. Ct. 258. 35 L ed. 974 (1891); 8. 1 Chamberlayne, Evidence, 598-601.
Callsen v Hope, 75 Fed. 758 (1896) 9. Young v. Montgomery, etc., R. Co., 30
2. La Rue v. Kansas Mut. L. Ins. Co., Fed. Cas. No. 18, 166, 2 Woods (U. S.) 606
supra. (1875) ; 1 Chamb., Ev.. 598 and cases cited
3. U. S. v. Beebe, 2 Dak. 292, 11 N. W. 505 10. Pennsylvania R. Co. v Baltimore, etc.,
(1880) : Dole v. Wilson. Ifi Minn. 525 (1871). R. Co., 37 Fed. 129 (1888) ; 1 Chamb., Ev.,
4. Callsen v. Hope, supra. 599 and oases cited.
5. Kreuger v. Schultz, 6 N. D. 310, 70 N. W. 11. Loree v. Aimer. 6 C. C A. 302, 57 Fed.
269 (1896). 159 (1893) : Municipality of Ponce v. Roman
6. Carson v. Smith. .1 Minn. 78, 77 Am. Cath. A. Church, etc. (Porto Rico 1908), 210
Dec 539 (1860). U. S. 296, 28 Sup. Ct. 737. 52 L. ed. 1068.
7. 1 Chamb.. Ev., 597 and cases cited. 12. 1 Chamb , Ev., 599 and cases cited, in
Acts done under a treaty, foreign laws, notes 3-7
usages, or other facts referred to therein, un- 13. Leland v. Wilkinson, 6 Pet (U S.) 317,
less cogni/able as matters of notoriety, i.e., of 8 L. ed. 412 (1832).
common knowledge, are secondary effects of 14. Case v. Kelly, 133 U. S. 21, 10 Sup. Ct.
law which will not be judicially known. Dole 216, 33 L. ed. 513 (1889) : Junction Ry. Co
v. Wilson, supra: Dainese v. Hale, 91 U. S. v. Ashland Rank. 12 Wall. (U. S.) 226.230,20
13, 23 L. ed. 190 (1875); U. S. v. Beebe, L. ed. 385 (1870): 1 Chamh., Ev., 600.
157 WRITTEN LAW. 329
the public laws of another country, 15 except such as may be known by them
as part of general international law. 10
329. Judicial Knowledge of Written Law; State and Provincial Courts. 17
All courts of a state judicially know the written Constitution of the United
States 18 and amendments to it subsequently adopted. 19 They also know the
direct results accomplished by the instrument, as the division of the powers of
the national government among the three great departments, the legislative,
executive, and judicial. 20 State courts know the state constitutions and the
adoption of amendments to.it. 21 They know judicially the effect 'of a state
constitution not only as to its direct enactments, but as to any results in re-
pealing statutes.- 2
Constitutional Requirements for Statutory Enactments. To know a statute,
it is necessary that the judge should ascertain that the facts essential to its
validity actually exist that constitutional requirements have been complied
with. 2 *
National Statutes. The courts of a province or state know the public
statutes passed by the national legislature. The domestic tribunals of the
states of the American Union judicially know the public acts of Congress, 24
including those \vhich relate to the District of Columbia, 25 and also the laws
of sister states which are referred to in such an act. 26
Xtate titatutvs. State courts know the public statutes of the state legisla-
ture, and any other statutes which the legislature or the constitution directs
that they shall know. 27 Provincial courts know the public statutes of the
legislature of the forum under which they are constituted. 28
15. Coghian v. South Carolina K. Co., 142 24. St. Louis, etc, R. Co. v. Brown, supra;
I. S. 101, 12 Sup. Ct. 150, 35 L. ed. 951 Schwerdtle v Placer County, 108 Cal. 589,
(1891); 1 Chamb., Ev., 001 and cases 41 Pac. 448 (1895); Gooding v. Morgan, 70
cited. Ill 2-75 (1873) ; \\heelock v. Lee, 15 Abb. Pr.
16. The New York, 175 U. S 187, 20 S. Ct. X S. i X. Y.) 24 (1873); 1 Chamb, Ev.,
07, 44 L ed 126 \ reversing 82 Fed. 819, 27 604 and cases cited.
C. C. A 154, 86 Fed. 814, 30 C. C A. 628) 25. Milliken v. Dotson, 117 N. Y. App. Div.
(1899); 1 Chamb., Ev., 591, 601. 5z.< , 102 X. Y. Supp 564 (1907).
17. 1 Chamber layne. Evidence, 602-616. 26. Flanigen v. Washington Ins. Co., 7 Pa.
18. St Louis, etc., H. Co. v Brown, 67 Ark. St. 306 (1847) ; Belt v. Gulf, etc., H Co., 4
295, 54 a. W. *65 (1899) ; State v. Bates, 22 Tex. Civ. App 231, 22 S. \V. 1062 (1893);
Utah 05, 61 Pac. 905, 83 Am. St. Rep. 768 1 Chamb., Ev., 604.
(1900). 27. Arndt v. Cullman, 132 Ala. 540. 31 So.
19. Graves v Keaton, 3 Cold (Tenn.) 8 478, 90 Am. St Rep. 922 (1901); Schwerdtle
(1866). v. Placer County, supra; Pittsburgh, etc.,
20. U. S. v. Williams, 6 Mont. 379, 387, H r v. Moore. 1 Hi 111 App 304 (1903);
12 Pac 851 (1887). Barnes v Squier. 19.3 Mass. 21, 78 X. E 731
21. Carmody v. St. Louis Transit Co., 188 (1906) : Warner v. Beers, 23 Wend. (X. Y.)
Mo 572. 87 S. W. 913 M905). 103 (1840) : 1 Chamb., Ev., 605 and cases
22 Campbell v. Shelby County, 147 Ala. cited
703, 41 So 408 (11)06) ; 1 Chamb , Ev. ; 602 28 Darling v. Hitchcock, 25 U. C. Q. B 463
and eases cited. (1866).
23. Gardner v Collector. 6 Wall. ( U. S.)
499, 511 ; 1867) ; 1 Chamb , Ev., 603.
329 JUDICIAL KNOWLEDGE. 158
Statutes of Former Sovereignties. Equally domestic are the public stat-
utes of a state or nation which exercised soverignty over the territory in ques-
tion, and which were in force at the time such sovereignty was exercised 29
Legislative Resolutions. Legislative resolutions of a public character are
classed with public acts and are accordingly judicially known to the state
courts. 30
Special Acts. Statutes specially limited by the legislature, though of a
public nature, e.g., a statute forbidding the sale of intoxicating liquors in a
particular county, are judicially known. 31
Priuate Statutes. In the absence of constitutional or statutory require-
ment to other effect, courts do not judicially know private statutes of a state, 32
provincial or uational 33 legislature, or legislative resolutions, affecting private
interests. 34 This is the uniform rule though the purpose is, in a sense, public;
as where a private act incorporates an association for business purposes, 35 or
affecting a municipal corporation. 30 The constitution or the legislature may,
however, require that certain private statutes shall be deemed public, i.e., shall
be judicially known to the court as would be the case with public statutes. 37
The private act may be recognized in the state constitution, 38 or in a public
statute ; 39 it may be amended by a public act. 4u Under any of these condi-
tions the courts judicially know the private act to the same extent as if it were
public, 41 and also know judicially any subsequent amendment. 42
Local Regulations. The power of passing ordinances or by-laws conferred
on municipalities by a general act of incorporation or granted by special
charter known to the court as a public act 43 is a direct result of the public stat-
29 Henthorne v. Doe, 1 Blackf (Ind.) 157, 36. Loper v. St. Louis, 1 Mo. 681 (1^26) ;
163 U822); 1 Cliamb., Ev., 606 Apitz v. Missouri Pac. K Co., 17 Mo. App.
30. McCarver v. Herzberg, 120 Ala. 523, 419 (1885). A private statute not known
25 So. 3 U898) ; 1 Chamb., Ev., 607 and to the courts of the state by authority of
cases cited. which it is enacted will not be known to the
31. Ball v. Com., 30 Ky. L. Rep. 600, 99 courts 01 other states. Miller v. Johnston,
S. VV. 326 (1907) ; 1 Chamb, Ev., 608 and 71 Ark. 174, 72 S. W 371 (1903).
cases cited 37. Mullan v. State. 114 Cal 578, 46 Pac.
32. Mobile v. Louisville, etc., R. Co., 124 670, 34 L. R. A. 262 (1896) ; Junction R. Co.
Ala. 132, 26 So. 902 (1899); Minck v. People. v. Ashland Bank, 12 Wall ( T. S.) 226, 20
6 111. App. 127 (1880): Hall v. Brown, 58 L. ed. 385 (1870>.
X H. 93 '1877): Pearl v. Allen. 2 Tyler 38. Vance v. Farmers', etc , Bank. 1 Blackf.
rVt ) 311 (ist)3>; 1 Chamb., Ev., 609 and (Ind ) 80 (1820)
cases cited. 39. Webb v. Bidwell. 15 Minn. 479 (1870).
33. Denver, etc., R Co v. U. S , 9 X M. 40. Lavalle v. People. 6 111 App. 157
380, 54 Pac. 336 i 1898) . Wright v. Paton. 10 ( 1880).
Johns. (N. V) 300 U813) 41. Ximmo v. Jackman. 21 111. App. 607
34. Simmons v Jacob. 52 Me. 147 (1862). '1888) : Bowie v. Kansas. 51 Mo. 454 (1873) ;
35. Mobile v Louisville, etc , R. Co., ftuprfi : State v Olinsrer (Iowa). 72 N W. 441
Butler v. Robinson. 75 Mo 192 (1881): ( 1897 ): 1 Chamh., Ev, 610 and cases cited.
Methodist Episcopal I'nion Church v. Picket t. 42. Stephens, etc.. Transp Co v New Jer-
19 .V. Y. 482 (18591 -. Timlnw v Philadelphia. sey Cent. R. Co. 33 X. J. I. 220 flSfiO).
etc, R. Co., 99 Pa. St. 2*4 (1882); 1 Chamb.. 43. Miter, where the power of legislating
Ev., 609 and cases cited. ordinances, etc., is not deemed a public act.
Butler v Robinson, 75 Mo 192 (1881).
159
WBITTEN LAW.
329
ute; and is, therefore, judicially known to the court. 44 The ordinances or
other regulations passed in pursuance of the powers so conferred are them-
selves secondary results of the public statute and are, in effect, so far as re-
gards state or provincial courts, matter in pais. Such a court, therefore, will
not judicially know their enactment. 45 Within this rule fall the ordinances of
a city, 46 or of a municipal department ; 4T the regulations of county 48 or ad-
ministrative boards, such as county commissioners ; 49 the by-laws of a cor-
poration, public or private. 50
Regulations of Voluntary Associations. A fortiori judges do not judicially
know the laws by which members of voluntary associations, e.g., labor unions, 51
are bound. A state or provincial court does not take judicial notice of the
by-laws of a private corporation ; but will require proof on the subject. 52
Statutes of Sister State. The courts of one state, or province, do not judi-
cially know, that is, without proof, 53 the written law of another state, or of an
Indian tribe. 54 If the foreign law is essential to a case, it must be pleaded, 55
proved 5ti and found 5T like any other fact.
44. Case v. .Mobile, 30 Ala. 538 (1857); themselves. Winona v. Burke, 23 Minn. 254
t 1876) ; Cox v. St. Louis, 11 Mo. 431 (1848) ;
Marker v. New York,i 17 Wend. (X Y.) 199
(1837). As to judicial knowledge of local
regulations on appeal or review of the de-
cision of a local court, civil or criminal,
see 1 Chamb., Ev., 612 and cases cited.
51. Birmingham Paint & Roofing Co. v.
Crampton & Tharpe (Ala. 1905), 39 So.
1020; 1 Chamb., Ev., 613.
52. Elkhart Hydraulic Co. v. Turner, 170
Ind 455, 84 X. E 812 (1908).
53. Southern Express Co. v. Owens, 146
Ala. 412, 41 So. 752 (1906) ; Crane v. Black-
man, 126 111. App. 631 (1906); Washburn
Green v. Indianapolis, 22 Ind. 192 (1864)
45. City of Greeley v. Hamman. 12 Colo.
94, 20 Pac. 1 ( 1888) ; Hill v. Atlanta, 123
Ga 697, 54 S. E. 354 (1906); Weaver v.
Snow, b'O 111. App. 624 (1895); Wolf v.
Keokuk, 48 Iowa 129 (1878); O'Brien v.
Woburn, 184 Mass. 598, 69 X. E. 350 (1904) ;
City of Xew Yprk v. Knickerbocker Trust
Co., 104 X. Y. App Div. 223, 93 X. Y.
Supp. 937 (1905) ; 1 Chamb., Ev., 611, note
3, and cases cited.
46. Case v. Mobile, supra ; Watt v. Jones,
60 Kan. 201. 56 Pac. 16 (1899); Porter v.
Waring. 69 X. Y. 250, 254 (1877).
47. State v. Inhabitants of Trenton, 51 X.
J. L. 495, 17 Atl. 1083 (1889); Department
of Health of City of New York v. City Real
Property Investigating Co., 86 X. Y'. Supp.
18 (1904).
48. Indianapolis & C. R. Co. v. Caldwell,
9 Tnd. 397 (1857)
49. Atkinson v. Mott, 102 Ind. 431, 26 X. E.
217 (1885).
50. Portage, etc.. Benev. Society v. Phillips,
36 Mich. 22 (1877); 1 Chamb., Ev., 611.
The repeal of any such regulations or ordi-
nances stands in the same position. Field v.
Malster, 88 Md. 691. 41 Atl. 10S7 (IsPSK
Such knowledge may be required by .statute.
Moore v. Jonesboro, 107 Ga. 704. 33 S. E.
435 (1899). Statutory niitfwritit for using
printed official copies as evidence, without
f -rther proof, does not have the effect of re-
quiring judicial knowledge of the regulations
Crosby Co. v. Boston, etc., R. Co., 180 Mass.
252, 62 N. E. 590 (1902) ; Harris v White 81
X. Y. 532 (1880); Smith v. Bartram, 11
Ohio St. 690 (1860); Spellier Electric Time
Co. v. Geiger. 147 Pa. St. 399. 23 Atl. 547
(1892); 1 Chamb., Ev., 614 and cases
citd.
54. Rowe v. Henderson (Ind. T. 1903), 76
S W. 250.
55. Nenno v. St. Louis & S. F. R. Co., 105
Mo. App. 540, 80 S. W. 24 (1904). See also
Leigh v. Xat. Hollow Brake Beam Co. 131
111. App 106 (1907): Electro-Tint Engraving
Co. v. American Handkerchief Co., 130 App.
Div. (X. Y.) 561. 115 X Y. Supp. 34 i!909).
56. Baltimore & O. R. Co. v. Ryan. 31
Ind. App 597. 68 X E. 923 (1903): The
Matterhorn. 63 C. C. A. 331, 128 Fed. 863
(1904).
57. Snuffer v. Karr, 197 Mo. 182, 94 S. W.
JUDICIAL KNOWLEDGE. 160
Statutes of Foreign Country. Courts of a state 58 or province 59 do not
know the corporation (io or other written laws, of a foreign country. The law
of the foreign country must be pleaded and proved. 01
330. Judicial Knowledge of Written Law; Local Courts. 62 The judicial
knowledge of unwritten law by the local or inferior courts is equally extensive
with that of courts of general jurisdiction. The judicial knowledge of tri-
bunals of local or limited jurisdiction is the same, in relation to the constitu-
tion and public statutes of the state, province or nation, as that of state or
provincial courts. 03 A local court being distinctively charged with the duty
of enforcing municipal regulations, judicially knows them. 84
331. Judicial Knowledge of Written; Amendment and Repeal. 65 Any
amendment of a public act is itself entitled to judicial knowledge; 66 and the
same is true of an act repealing a public statute.' 57
332. Judicial Knowledge of Written Law; What Statutes are Public. 68
Public statutes, in connection with the law of judicial notice, may be defined
as being those which affect, directly and equally, the inhabitants of a nation,
state or province; or apply, in the same way, to the dwellers in any municipal-
ity or other territorial division of such nation, state or province. If the pur-
pose be public, the act is not made private by the circumstance that the legisla-
ture has limited its operation to a particular territory. 69 Where special laws
983 (1906) ; 1 Chamb., Ev., 614 and cases 60. Duke v. Taylor, 37 Fla. 64, 19 So. 172
cited. (1896); Southern Illinois, etc., Bridge Co.
"Full faith and credit." The Supreme v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. E. A.
Court of the United States, on review of 301 (1903).
the judgment of a state court, will take only 61. Ryan v. North Alaska Salmon Co., 153
such knowledge of the law of a state other Cal. 438, 95 Pac. 862 (1908); Gordon v.
than the one under review as that court Knott, 199 Mass. 173, 85 N. E. 184 (1908); 1
itself would have taken. Lloyd v. Matthews, Chamb., Ev.. 616 and cases cited.
155 U. S. 222, 15 S Ct. 70, 39 L. ed. 128 62. 1 Lhamberlayne, Evidence, 617.
(1894). The majority of the state courts 63. 1 Chamb., Ev., 602, 604, 605, 617.
take no additional judicial knowledge of the 64. Ex parte Davis, 115 Cal. 445, 47 Pac.
laws of a sister state when they are asked 258 (1896); Fears v. State. 125 Ga. 740, 54
to give "full faith and credit" to its judg- S. E. 661 (1906); 1 Chamb., Ev., 617 and
ments. Sammis v. \Vihtman, 31 Fla. 10, cases cited.
12 So. 526 i l93i ; Knapp v. Abell. 10 Allen 65. 1 Chamberlayne, Evidence, 618.
(Mass.) 485 (1865); 1 Chamb., Ev.. 615 66. Parent v. Wamsly's Adm'rs, 20 Tnd.
and cases cited. 82, 86 (1863); Belmont v. Morrill, 69 Me.
58. Wickersham v. Johnston, 104 Cal. 40", 314, 317 (1879): 1 Chamb.. Ev., 618 and
38 Pac. 89, 43 Am St. Rep. 118 (1S94); cases cited.
McCurdy v. Alaska, etc., Commercial Co., 102 67. State v. O'Conner, 13 La. Ann. 487
111. App. 120 (1902); Chapman v. Colby, 47 (1858)
Mich. 46, 10 N \V. 74 (1*81): Monroe v. 68. 1 Chamberlayne, Evidence, 619-634.
Douglass, 5 N. Y. 447 (1851) ; 1 Chamb.. Ev., 69. Davis v. State, 141 Ala. 84, 37 So. 454,
616 and cases cited. 10!) Am. St. Rep 19 I'lOfUi; Rurnham v.
59. Giles v. Gariepy, 29 L. C. Jur. 207 Webster, 5 Mass. 266. 269 (1809); Bret/
(1885). v. Mayor, etc., of New York, 6 Robertson
161
WRITTEN LAW.
332
apply to different sections of the state, a court will know the public laws
locally limited which apply to each section. 7 " In general, statutes allowing
certain governmental agencies, counties, cities or the like, to adopt laws re-
lating to given subjects at their option are themselves public statutes; but
whether the necessary action, in pais, has in fact been taken in a given case
must usually be established by evidence. 71
Administration of (jtouernment. Administration of government being a
public purpose, statutes prescribing in what manner it shall be conducted are
public though dealing with details. Within this class fall statutes creating a
public office,' 2 determining the duties incumbent upon the individual holding
it, 7:J or establishing courts. 74
Local Option Laves. Certain states do not take judicial notice that the
general law has, by popular action, been made operative in a certain section
of the state. 75 In other states, courts judicially know the result of local op-
tion elections; 711 and the length of time after its adoption during which a
local option law persists. 77
Municipal Corporations. The creation of municipalities are pre-eminently
public statutes; 7S whether the incorporation be by general act, 79 or by special
charter, 81 * particularly where the courts are ordered to regard the latter as
(\. Y.) 325 (1868) ; State v. Finer. 141 N. C.
760, 53 S. E. 305 (1906) ; 1 Chamb., Ev.,
ol9 and cases cited.
70. Lewis v Rasp, 14 Okl 69, 76 Pac. 142
(1904). Thus, for example, the "local op-
tion " law, so-called, regulating the sale of
intoxicating liquors in limited areas, ac-
cording to the wishes of the voters in that
section, will be judicially noticed; Crigler
v. Comm., 87 S. W. 281 (Ky. 1905), and
also the time when it goes into effect. State
v. Scampini, 77 Vt. 92, 59 Atl. 201 (1904).
71. Johnson v Scott, 133 Mo. App. 689,
114 S. W. 45 (1908).
72. State v. Jarrett, 17 Md. 309 (1861).
73. Lynn v. People, 170 111. 527, 48 N. E.
964 (1897): State v. Gut, 13 Minn. 341
(1868) : 1 Chamb., EV., 620 and cases cited.
74. La Salle Co. v. Milligan, 143 111. 321
( Hfl-2).
75. CraddiYk v State, 48 Tex, Cr. R. 385,
88 S. YV. 347 (1905); State v. Scampini,
supra Chicago & X. W. R. Co. v. Railroad
Commission. 156 Wis. 47. 145 N W 216. 1
Chamb.. Ev . 621. The same rule applies
to laws conferring an option of using the
highway -ontrar-t svstem State v Burkett.
S3 Miss :Wi. 3.1 So. 6*9 (1904).
Acceptance of Liquor Law. According to
the weiirht of authority the courts will not
take judicial notice of the acceptance at a
local election of a no-lioense liquor law This
is a matter of record to he proved like other
matters of record. People v. Mueller, 168
Lai. 521, 143 Pac. 748, L. R. A. 1915 B 788
(1914).
76. Oglesby v. State, 121 Ga. 602, 49 S E.
706 (1905): Cue v City of Eugene. 53 Or.
282, 100 Pac. 254 (1909); 1 Chamb, Ev.,
622 and cases cited.
77. State v. Hall, 130 Mo. App. 170, 108
S. W 1077 (1908). Where it is unlawful to
manufacture or sell intoxicants anywhere
within a county, the supreme court will take
notice of that fact State v. Arnold, 80
S C. 3S3. 61 S E. 891 (1908).
78. Frost v. State. 153 Ala 654. 45 So.
307 ( 1908) : Agnew v. Pawnee City, 79 Veb.
603. 113 X. W. 236 (1907) ; 1 Chamb., Ev.,
623 and cases cited.
79. State v Ricksecker, 73 Kan. 495. 85
Pac. 547 (1906K Arts in pnis must be
proved Hard v. City of Decorah. 43 Iowa
313 i 1876): 1 Chamb. Ev.. 623 and cases
cited
80. Pavne v. Treadwell. 16 Cal. 221. 232
(1860); Beatv v. Sears & Bennett. 132 Ga.
516. 64 S. E 321 (1900): Stone v Auer-
bach. 133 App. Div. i V. Y. ) 75, 117 X Y
Supp. 734 1 1909) ; 1 Chamb.. Ev., 623 and
cases cited.
332
JUDICIAL KNOWLEDGE.
102
public acts. 81 Acts prescribing the duties, or establishing the powers of these
public corporations 82 are equally public. 8a
Cities. Particular facts concerning individual cities, established by 84 or
recited in an act relating to such city will be judicially known. Acts providing
for the erection of municipal buiuldings * 5 and, occasionally, the adoption of a
general municipal incorporation law by a particular city so need not be proved.
Mercantile Corporations; Acts of Incorporation. General acts of incorpor-
ation for business or other private purposes, are public statutes, 87 especially
where, as in case of railways 88 the purpose is one which concerns the general
public.
Corporate Acts in Pais. Unless required by law to do so courts will not
notice acceptance by a corporation of its charter, as to what corporations are
established by acts in pais under the provisions of a general statute of incor-
poration, 85 * or, where there are several available statutes of incorporation, as to
which was actually employed. 90
81. City of Austin v. .Forbis, 99 Tex. 234,
bj S. W. 405 (1905).
82. Vance v. Rankin, 194 111. 625, 62 N. E.
607, 88 Am. St. Rep. 173, reversing 95 111.
.App. 562 ( 1902) ; Harris v. Quincy, 171 Mass.
472, 50 N. W. 1042 (1898); Shaw v. New
York Cent., etc., R. Co., 85 App. Div. IN. Y.)
137, 83 N. Y. Supp. 91 (1903): State v.
Banfield, 43 Or 287, 72 Pac. 1093 (1903);
1 Chamb., Ev., 623 and eases cited.
83. Foley v. Ray, 27 R. I. 127, 61 Atl. 50
( 1905 ) . Statutes establishing or changing
the name of a municipal corporation are
public. State v. Cooper. 101 X. C. 684
(1888). The powers of municipal officers
are judicially known by the judges. Lynn
v. People, 170 Til 527, 48 N. E. 964 (1897).
The repeal of acts incorporating a town are
public. Board of Tp. Conrrs for Sullivan's
Island v. Buckley, 82 S. C. 352, 64 S. E. 163
(1900).
84. Harris v. Quincy, supra; 1 Chamb., Ev.,
624.
85. Burlington Mfg. Co v. Board of Court-
House, etc.. Com'rs, 67 Minn. 327, 69 N. W
1091 M807).
86. Davey v. Janesville, 111 Wis. 628, 87
X. W 813 (1001). Statutes providing in-
dividual relief are, in their nature, private.
State v. FT. & C. Turnpike Co., 65 N. J. L. 97,
46 Atl. "700 (1900).
87. Woodruff v. Marsh, 63 Conn. 125, 26
Atl. 846. 38 Am. St. Rep. 346 (18931 -. Ximmo
v Jackman. 21 Til. App. 607 (1886): State
v. Webb's River Imp. Co., 07 Me. 559, 55 Atl.
495 (1903); Methodist Episcopal Union.
Church v. Pickett, 19 N. Y. 482 (1859) ; Case
v. Kelly, 133 U. S. 21, 10 S. Ct. 216, 33 L. ed.
513 (1889) ; 1 Chamb., Ev., 625 and cases
cited.
88. Heaston v. Cincinnati & Ft. W. R. Co.,
16 Ind. 275, 79 Am. Dec. 430 (1861). in
case of the federal courts, this knowledge
covers not only incorporation granted by
public acts of Congress, Central Bank v. Tay-
loe, 5 Fed. Cas. No. 2,548, 2 Cranch C. C.
(U. S. ) 427 (1823) ; but those created under
the public statutes of a state, Beaty v. Know-
ler, 4 Pet (U. S.) 152, 7 L. ed. 813 (1830).
They know also powers conferred by act of
Congress on existing corporations, state or
national. Pennsylvania R. Co. v. Baltimore,
etc., R. Co., 37 Fed. 129 (1888).
89. Danville, etc., Plank-Road Co. v. State,
16 Tnd. 456 (1861): People v. De Mill, 15
Mich. 164. 93 Am. Dec. 179 (1867): Purdy
v. Erie K. Co., 162 N. Y. 42, 56 N. E. 508,
48 L. R. A. 669. affirming 33 App. Div. 643,
54 X. Y. Supp. 1114 (1900): Trice v. State,
2 Head (Tenn.) 591 (1859) ; 1 Chamb., Ev.,
625 and cases cited.
90. Danville, etc , Plank-Road Co. v. State,
supra. Neither will a judge judicially know
whether a given corporation has adopted the
terms of a certain act. Id. : has in fact
consolidated with another corporation as au-
thorized by statute, Southgate v. Atlantic,
etc., R. Co., 61 Mo. 89 (1875): Columbus,
etc.. R. Co v. Skidmore. 69 111. 566 (1873) :
whether it has lot or forfeited it charter.
Shea v. Knoxville, etc.. R. Cc.. fi Baxt.
(Tenn.) 277 (1873) ; or has adopted by-laws,
163
WRITTEN LAW.
332
Mercantile Corporations; Existence of Such Corporations. As a result ac-
complished by the direct operation of a law which it is obliged to kuow the
court judicially knows the existence of private corporations established by a
domestic public statute, 1 ' 1 their names, 02 and powers; 03 and the duties of its
omcers 94 and of a time limit upon its corporate existence, 95 so far as anv has
been imposed by law. 96 Except where the fact is a notorious one in the com-
munity or where required by law so to do, the court will not know the existence
of domestic corporations existing under a private act, 97 or that of corporations
established under the law of a foreign country or sister state. 98
Mercantile Corporations; Statutes Conferring Powers. Statutes prescrib-
ing the powers and duties of all corporations of a public or semi-public nature,
or of all corporations organized for certain purposes, e.g., operating a railroad, 99
and the like, 1 are judicially known. Minor facts relating to corporations as
that all stockholders, residents of the state, are among its citizens 2 are not
within the judicial knowledge of the court. Facts of this class may be known
and, if so, what these are. Bushnell v. Hall,
9 Ky. L. Rep. 684 (18S7) : Simpson v. South
Carolina Mut. Ins. Co., 59 S. C. 195, 37 S. E.
18, 225 (1900). A court will not judicially
know what officers a certain corporation has
elected and what powers it has conferred on
them, Brown v. Missouri, etc., K. Co., 67 Mo.
122 i 1877 ); or, whether any other act in pais
whatever, has been done by the corporation,
Illinois Cent. H. Co. v. Johnson, 40 111. 35
(1864); People v. Tierney, 57 Hun (N. Y.)
357, 589, 10 N. Y. Supp. 940, 948 (1890);
Topp v. Watson, 12 Heisk. (Tenn.) 411
(1873) ; or its board of directors. Crawford
v. Mobile Branch State Bank, 7 Ala. 205
(1844); Topp v. Watson, supra. Statutes
of incorporation of private corporations will
not be judicially known, Winnipiseogee Lake
Co. v. Young, 40 N. H. 420, 428 (1860) ; nor
the seal of private corporations. Griffing
Bros. Co. v. Winfield, 53 Fla. 589, 43 So
687 (1907).
91. State v. Briscoe, 6 Pen. (Del.) 401,
67 Atl. 154 (1907).
92. Jackson v State, 72 Ga. 28 (1883).
93. Gordon v. Montgomery, 19 Tnd. 110
(1862); Chapman v. Colby, 47 Mich 46, 10
N W. 74 (1881): Bnell v Warner, 33 Vt.
570 (1861) ; 1 Chamb., Ev., 626 and cases
cited
94. Douglass v Mobile Br'anch Bank, 19
Ala. 6oO (1851)
95. Terry v Merchant?', etc., Bank, 66 Ga.
177 M8SO).
96. Cicero Hygiene Draining Co. v. Craig-
head, 28 Ind. 274 (1867). A federal court
will judicially know that a certain corpora-
tion is established under act of Congress,
neffelfinger v. Choctaw, O. & G. R. Co., 140
Fed. 75 (1905).
97. Mobile v. Louisville, etc., R. Co., 124
Ala. 132, 26 So. 902 (1899); Kirby v. Wa-
bash R. Co, 85 Mo. App. 345 (1900).
98. Savage Mfg. Co. v. Armstrong, 17 Me.
34, 35 Am. Dec. 227 (1840); Brown v. Dib-
ble, 65 Mich. 520, 32 N. W 656 (1887);
Southern Illinois, etc.. Bridge Co. v. Stone,
174 Mo. 1, 73 S. W. 453 (1902) ; 1 Chamb.,
Ev., 627 and cases cited. A court may
treat special charters incorporating persons
to carry on certain business enterprises of a
public or semi-public nature, as banking,
Davis v. Bank of Fulton, 31 Ga. 69 (1860) ;
Buell v. Warner, 33 Vt. 570, 578 (1861);
operating a railroad, street railway, or an
electric light. Nelson v. Narragansett Elec-
tric Lighting Co., 26 R. I. 258, 58 Atl. 802
(1904), or power plant, as within the range
of judicial knowledge
99. Caldwell v Richmond Ry. Co.. .89 Ga.
550 (1892): Chicago, etc., R. Co v. Liebel,
27 Ky. L Rep. 716, 86 S. W. 549 (1905);
1 Chamb . Ev., 628 and cases cited.
1. Miller v Matthews. 87 Md. 464, 40 Atl.
176 (1898). It will be judicially known that
a corporation, operating a canal in a naviga-
ble river can acquire a fee in such property
only by a grant from the legislature. State
v Portland General Kleotrio Co , 52 Or. 502,
98 Pac. 160, 9o.Pac. 722 (1908).
2. Lexington Mfg. Co. v. Dorr, 2 Litt.
(Ky.) 256 (1822).
332 JUDICIAL KNOWLEDGE. 164
wherever they are notorious in the community or historical, in some general
sense. 3
Mercantile Corporations; Railroads. Direct results of legislation as that
railroad companies are common carriers 4 and, as such, have certain duties to
perform, 5 will be recognized by the court as a matter of law, i.e., judicially
known. The creation of a railroad company either as an original corporation,
by charter or by certiticate under a general law,' 1 or as successor to another rail-
road, 7 will be noticed judicially. A special charter incorporating a railroad
will not be deemed a public statute. 8
Mercantile Corporations ; Street Railways. The incorporation of a street
railway by special charter is a direct result of a public statute of which the
courts take judicial notice. It follows that the presiding judge will know that
no special charter has been issued to a particular street railway company. 1 *
Courts also judicially know the legal powers and duties conferred or imposed
on such creations of law ; e.g., that they are common carriers of passengers. 1 "
Mercantile Corporations; Telegraph Companies. Particular facts relating
to telegraph companies, neither of general importance, nor a direct result of
legal enactment, as that there are only two telegraph companies in the state,
will not be treated as a matter of judicial knowledge. 11
Private Acts Made Public. The legislature may order that certain acts,
otherwise private, shall be treated as beiug public. 12 This regulation may
apply to private acts of a given class, 1 -' 5 or to all private acts whatever, 1 ' 1 or to
3. Ohio L. Ins., etc , to. v Debolt, 16 How. 7. Atlanta & W P. R. Co. v. Atlanta, B. &
(U. S.) 416, 435, 14 L. ed. 997 (1853); A. R. Co., supra.
State v. Franklin County Sav. Bank, etc, Co., 8. Perry v K. Co., 55 Ala. 413, 426 (1876).
74 Vt 246, 52 Atl. 1069 (1002): 1 Chamb., Contra: Wright v. Hawkins, 28 Tex. 452,
Ev., 620 In the case of certain well-known 471 (1866). Where the legislature has pro-
bodies notice will be taken that they are not vided a system of assessing railroad taxes,
organixed for business purposes Burdine v. the fact that the railroads of the state have
Grand Lodge, 37 Ala. 478 (1861), Free Ma- paid the taxes so assessed is judicially
sons. Protection of workingmen is a public known. Gulf & : I R. Co v. Adams, 85
purpose. Thus statutory regulations of the Miss 772. 38 So. 348 (1905).
duties due a servant from his master are 9. American Steel & Wire Co. v. Bearse, 194
public in their nature. Squilac-he v. Tide- Mass. 506. 80 X. E. 623 (1907); 1 Chamb.,
water Coal & Coke Co, 64 W. Va 337, 62 Ev., 631 and cases cited.
S. E. 446 (1908). 10. Indianapolis St. Ry. Co. v. Ray, 167
4. Caldwell v. Richmond, etc., R. Co., 80 Ind. 236, 78 X. E. 978 (1906)
Ga. 550, 15 S. E. 678 (1892); Boyle v. 11. State v. Atlantic Coast Line R Co., 51
Great Xorthern R. Co., 13 Wash. 383, 43 Fla. 578, 40 So. 875 (1906); 1 Chamb., Ev.,
Pac 344 (1896): 1 Chamb., Ev , 630, and 632.
cases cited 12. Gormley v. Day. 114 111 185 (1885);
5. Evansville. etc. R. Co. v. Duncan, 28 Beaty v Lessee of Knowler, 4 Peters ( U. S )
Ind. 441 (1S67K 152 (1830); 1 Chamb., Ev., 633 and cases
6. Atlanta & W. P. R Co. v. Atlanta. B. cited.
& A. R Co., 124 >.a 125. 52 S. E. 320 (1005) ; 13. Doyle v. Village of Bradford, 90 111. 416.
McArdle v Chicago City Ry. Co.. 141 111. App. 14. Doyle v. Hradford. Kiiprn : F.el River
59 (1908) ; 1 Chamb., Ev., 630 and cases D. Ass'n v. Topp, 16 Ind. 242 (1861).
cited.
165 How KNOWLEDGE ACQUIRED. 333
all statutes except those which expressly declare themselves to be of a private
nature. 15
Statutes of Sister State. The law-making body of a jurisdiction may re-
quire that the courts organized within it should know judicially the written
constitution of public statutes of another state; 16 in which case the foreign
law need not be introduced into evidence. 17
333. How Judicial Knowledge of Law is Acquired. 18 Knowledge of domes-
tic law, being a judicial function, is beyond the tield of evidence and the judge
is not called upon to receive it when tendered. 19 Constructively, i.e., in intend-
ment of law, the judge already knows the law. Any assistance from without
which he may require, or accepts from a party, or even from an arnicas curiae,
is simply to refresh the judicial memory. 20 This is commonly expressed by
saying that the judge is " presumed to know the law." 21 This is not a pre-
sumption or inference. 22 It merely states a necessary principle of adminis-
tration, viz. ; that trials must proceed upon the basis or assumption that the
judge knows the law, 23 although, in point of fact, he frequently does not know
it. 24 A statute may in reality have recently been passed and the court not
know it. 25 In discharging his function of knowing the law, a judge need not
make any investigation, or invite any assistance. If he sees fit to do so the
judge may examine into what the law is, in his own way; or he may require
the assistance of the parties, and adjourn or continue the case until he gets it. 2ft
Jf he decides to examine the matter for himself, he may resort to any source
of information which he feels is calculated to aid him. 2 '
15. Covington Drawbridge Co. v. Shepherd. 21. Lincoln v Battelle, supra.
20 How (U. S.) 227 (1857) 22. 1 Chamb., Ev.. 635, 1027.
Amendments or recognition of a private 23. 1 Chamb, Ev., 571, 635.
act by a public one entail judicial knowledge 24. Frost's Trial, Gurney's Hep. 168 (1840).
of the private act. Lavalle v. People, 6 111. 25. People v. Dowling, 84 X Y. 478 (1881).
-A pp. 157 I 1880) ; 1 Chamb.. Ev.. 600. 609, 26. Richardson County School Dist Xo. 56
633 Hie regulations of an administrative v. St Joseph F. & M. Ins. Co.. 101 U. S.
board, ear. the board of health Cohen v 472, 25 L. ed. 868 (1870)
Department of Health of the City of Xew 27. Strauss v Heiss, 48 Md 292 (1877);
York, 61 Misc. 124, 113 X. Y. Supp. 88 State v. Stearns, 72 Minn. 200, 75 X W.
(1908). may, if adopted by a public statute, 210 (1898): Bowen v Missouri Pac R. Co.,
receive judicial notice 118 Mo. 541. 24 S. W 436 (1893) : 1 Chamb.,
16. Mates v. McCully. 27 Miss. 584 (1854); Ev.. 635 and cases cited. "The ex-
Lockhead v Berkeley Springs Waterworks, istence of a public act is determined
etc, Co., 40 W Va 553, 21 S. E 1031 (1895): by the judges themselves, who if there
Miller v Johnston, 71 Ark. 174, 72 S. W 371 be any difficulty, are to make use of ancient
(1903). copies, transcripts, hooks, pleadings or any
17. F E C'reelman Lumber Co. v J A other memorial, to inform themselves.
Lesh & Co, 73 Ark 16. S3 S W. 320 (1004). Bowen v Missouri Pac Ky , snprn. The
18. I Chamber layne. Evidence. fi35, 636. judge may resort to official documents in the
19. In re Howard County. 15 Kan 194 executive or legislative departments. (Mare
(1875) : 1 Chamb. Ev . 035 v State. 5 Iowa 509 i 1857) : State v Stearns,
20. Lincoln v Rattelle. 6 \Yend. (X T Y) supra.. Puckett v State, 71 Miss. 192. 14
475 (1831): Clegg v Levy, 3 Campb. 166 So 452 (1893): seeking the most conclu-
(1811). sive, if available, Gardner v. Barney, 6 Wall.
334 JUDICIAL KNOWLEDGE. 166
Foreign Law. Even in the absence of statutory requirement, judges fre-
quently take or, perhaps, more properly, acquire judicial knowledge of such a
law in the manner appropriate to a rule of domestic law. 28 He may consult
text books, 29 or other authoritative printed or written statements,^ official deci-
sions, 31 volumes of statutes and the like; or any other source of information he
may deem reliable. 32
334. Judicial Knowledge of the Results of Law. 33 The second and remain-
ing branch of judicial knowledge properly so called, is a knowledge, cognizance,
notice or whatever may be the term preferred, of facts which are the direct
result of law. This knowledge may, under some circumstances, be actual ; -
as where a judge knows of the establishment of a county or other political
division of the state. In most cases, however, the knowledge is one of the im-
puted, constructive kind characteristic of knowledge of the rules of law them-
selves ; the sort of knowledge which one may be said to have who is merely
forbidden to say that he does not know. A judge judicially knows that which
is " matter of law." The phrase is sufficiently elastic to cover both the rules
of law and such facts as laws directly establish. 34
Governmental Assumptions. Perhaps as a relic of early days where the
King, the source of all government, as well as the fountain of justice, person-
ally sat in Court of King's Bench and gave judgment, courts, to a certain extent,
regard themselves as knowing w y hat the other departments of government know.
The courts recognize that they are parts of a system or scheme of governmental
administration. As such, they assume, in a spirit of co-ordinate responsibility,
the correctness of the official actions of other departments. Whether the process
be called taking judicial knowledge, raising a presumption of regularity or
otherwise, the real action is one of judicial administration proceeding by way
of an assumption of the correctness of official proceedings in another branch of
the domestic government. 35
(U. S) 409, 18 L. ed. 890 (1867): unless cisions of State courts Old Dominion Cop-
the legislature has regulated the matter for per Co. v. Bigelow. 203 Mass. 159. 89 X. E.
him. Puckett v State, supra 193, 40 L. K. A. (X. S.) 314 (1909).
28. See The Paquete Hahana, 175 U S 677, 32. The Pawashick, supra: Sussex Peerage
20 S. Ct. 220 (1899) ; 1 Chamb., Ev., 636). I ase, 11 Cl. & F 85 (1844) : 1 Chamb., Ev.,
29. Hilton v. C.uyot, 159 L S. 113, 16 S. 636.
Ct. 139, 162 (1894) 33. 1 Chamberlayne, Evidence, 637-641.
30. De Sonora v. Bankers' Mut C. Co 34. 1 Chamb.. Ev., 637. -
(Iowa 1903), 95 N \V 232: Devenbagh v. 35. 1 Chamb . Ev.. 038. Probably it is in
Devenbagh. 5 Paige Ch. (X. Y.) 554 (1836) ; this way that a court will assume that pub-
The Paquete Habana, supra. lie officials keep within the sums appropriated
31. The Pawashick, 2 Low. (U. S ) 148 by law for their use Stein v Morrison, 9
(1872). Idaho 426, 75 Pac 246 (1904) Courts can
Foreign law. The decisions of the Fed- take judicial notice of all questions relating
eral courts are not evidence as to the law to public policy. Hall v. O'Xeil Turpentine
of another state on a question of general Co, 56 Fla 324, 47 So. (609) The history
law as the Federal courts declare the law on of previous legislation upon a given subject,
their own views and are not bound by the de- and the practical contemporaneous construe-
167 KESULTS or LAW. 334
Official Position. In determining judicial action the incumbency, past or
present, of high public position in other departments of government may be an
important fact. All the courts of a country know who is or at any time was
the executive head of the state ; as president of the United States, 36 who
are 3T or, at a given time, were cabinet officers, 38 foreign ministers,' 59 or at the
head of the great departments of government, 40 or of important bureaus in
these departments. 41 In minor official connections, they know as a rule who
are deputies or acting substitutes, while the latter are exercising the functions
of the office, in the absence of the chief, 42 and, less frequently, in case of im-
portant officers, who are the deputies empowered to act for the chief. 43 The
court knows who are the principal subordinate department officials, 44 receivers
of public money, 45 as chief clerk, 46 and the like.
De Facto and De Jure Officers. It has been reasonably held that only de
jure officials could be judicially noticed. 47 Judicial knowledge is reserved for
matters of law law or its direct results or creations ; and does not, properly,
apply to de facto officers. The distinction, however, is not well established.
Time of holding elections for national officers, including congressmen ; 48 or
for the governor and other high officials of a state, will, when established by
law, be judicially known by all the courts of a state.
Tenure of Minor Offices. Minor political details as to official tenure of
state officers, as the appointment by the governor 49 or election by the legisla-
ture 6U or the voters, of inferior state officers, 51 whether de jure or de facto,
tion placed upon statutes of that nature by' 45. Herriot v. Broussard, 4 Mart. N. S.
olticers charged with their enforcement will (La.) 260 (1826).
be known to the presiding jud^e. State v. 46. Barton v. Hempkin, supra; 1 Chamb ,
Rutland R. Co., 81 V't. 508, 71 Atl. 97 (1908). Ev., 639.
36. Liddon v. Hodnett, 22 Fla. 442, 450 47. Williams v Finch, 148 Ala. 674, 41 So.
1886); 1 Chamb., Ev., 639. 834 (1906).
37. Backus Portable Steam Heater Co. v. 48. State v. Custer, Z6 R. 1. 222, 66 Atl. 306
Simonds, 2 App. Cas. (D (.) 290 (1894). (1907); 1 Chamb., Ev., 640.
38. Walden v. Canfield, 2 Rob. (La.) 466 49. Bailey v. McAlpin, 122 Ga. 616, 50 S.
(1842): Perovich v. Perry, 167 Fed. 789 E. 388 ( 1905) ; Louisville v. Board of Park
(1909). Com'rs, 112 Ky. 409, 24 Ky. L. Rep. 38, 65
39. Wetherbee v. Dunn, 32 Cal. 106 (1867). S. \V. 860 (1901) ; 1 Chamb., Ev., 641 and
40. State v Board of State Canvassers, 32 cases cited. Who are notaries- public in the
Mont 13. 79 Pac. 402 (1905). state will be judicially, noticed. Hertig v.
41. Keyser v. Hitz, 133 U S. 138, 10 S. People. 159 111. 237, 42 X. E. S79. 50 Am.
Ct. 290, 33 L. ed. 531 (1889). St. Rep 162 (1S96): Black v. Minneapolis,
42. Barton v. Hempkin, 19 La. 510 (1841) : etc., R. Co.. 122 Iowa 32. 9fi X. W 9S4 (1903).
York, etc.. R. Co. Y. Winans, 17 How. (U. S.) 50. Coljjin v. State Bank. 11 Ala. 222
30, 15 L. ed. 27 1S54). (1^47) : Bennett v State, Mart. & Y. (Tenn.)
43. Wetherbee v. Dunn, supra. Who are 133.
deputy United States marshals will not be 51. Fisk v. Hopping. IrtO Til. 105. 4S X. E.
known to state courts Ward v. Henry, 10 323 '1^07): People v. Johr. 22 Mich. 461
\\is. 76, 8 Am. Dec 672 (1865). (1871) : Xew York v. Vanderveer. 91 X. Y.
44. Rullock v. Wilson, 5 Port. (Ala.) 338 App Div. 303. 8fi X. Y. Supp 659 (1904); 1
(1837). Chamb., Ev., 641 and cases cited.
335 JUDICIAL KNOWLEDGE. 168
their tenure of office, 52 and the date of their election or appointment 53 will be
known to the courts. The appointee of a state official whose own tenure is
itself judicially known is not, however, an official within the meaning of the
rule. 54
Tenure Under Local Ordinances. Courts do not take judicial notice of the
primary results of statutes of which they do not take such cognizance. As
they do not take such notice of local ordinances, 55 a fortiori they do not judi-
cially know their results. For example, a state or provincial court will not
notice the salary of a policeman 0(i established by a municipal ordinance.
335. Judicial Knowledge of Results of Law; Official Proceedings. 57 The
reasons which control a court's action in dealing with official proceedings are
several. Judicial knowledge in this connection is a function of three variables,
(a; notoriety in the community; (b) directness of relation to a rule of law;
(c) difficulty of making other proof as compared to the readiness with which
the matter can be set at rest by inspection. In few cases does the court's actual
knowledge exteud to saying whether, in any particular instance, an official act
has been properly done. * But the general manner in which officials in close
touch with the public discharge the duties of their respective offices, as that
in the callection of taxes property is not assessed by the owner, 59 but by public
officers who customarily appraise it at less than its marker value," that taxes
are not at all times collected until years after they are assessed," 1 will be re-
garded as known.
Correspondence. Official correspondence, letters and the like, proceeding
with apparent regularity from the executive department of national govern-
ment, will be assumed to be what they purport to be. Thus, the letter of the
official head of the national land office relating to routine business is a public
document which is said to be judicially known. 62
Publications. Printed official copies are, as a rule, incompetent to estab-
lish facts of which judicial knowledge is taken.' 53 Judicial cognizance of facts
52. Gary v. State, 76 Ala. 78 (1884); Me- 59. Chicago, etc., R. LO v. Smith, 6 Ind.
Carty v. Johnson. 20 i'ex. Civ. App. 184, 40 App. 262. 33 X. E 241 (1892)
S. \V. 1098 (4899). 60. State v. Savage, 65 Xeh. 714, 91 X. W.
53. Lindsey v. Atty.-Gen., 33 Miss. 508, 716 (1902); Cummings v. Merchants' Nat.
528 (18.57). Bank, 101 U. S 153. 2.") L. ed. 903 (1879);
54. Crawford v State, 155 Ind. 692, 57 N. 1 Chamb., Ev., 642 and cases cited.
E. 931 .1900K 61. Mullen v. Sackett, 14 Wash. 100. 44
55. 1 Chamb.. Ev., 611, 641. Pac. 130 (1896); 1 Chamb., Ev., 642 and
56. (Jibbs v. City of Manchester, 73 X. H. cases cited.
265. til Atl. 128 (1905). 62. Southern Pac. ft. Co. v. Willard. 148
57. 1 Chamherlayne, Evidence, 642-644. Cal xvii, S3 Pac. 452 (1906): 1 Chamb., Ev.,
58. Koach v. Retcher, 11 Tex. Civ. App. 643
225, 32 S. W. 5S5 (1895). Whether a patent 63. Wellington First Xat. Bank v Chap-
has issued will not he judicially noticed. man, 173 V. S. 205, 19 S. Ct. 407, 43 L. ed.
Bottle Seal Co. v. Dela Vergne Bottle, etc., 669 (1898); 1 Chamb., Ev., 644 and cases
Co., 47 Fed. 59 (1891). cited.
169 RESULTS OF LAW. 336
stated in certain official publications such as the gazette, 64 may be required by
law. Public documents, as the returns of railroad companies 5 to appropriate
administrative boards, rendered in accordance with the requirements of law,
are proper subjects of judicial knowledge. Reports of departments, or admin-
istrative boards, to the executive or legislative branches of the government, if
ordered, recognized or sanctioned by law, stand in the same position.' 1 * 5
336. Judicial Knowledge of Results of Law; Executive Department; Nation. 07
All courts recognize, without proof, who is, and at any time in the past, was
the chief executive head of the nation; the incumbents of the principal depart-
ments into which the administration of national executive authority is divided,
as the State, Treasury, War, Interor or Navy Departments ; and of the princi-
pal bureau offices established in these departments; 68 whether the incumbent
is regular and permanent or holds as a substitute, or locum tenens. A state
court will take judicial notice of the inferior federal officers located within the
state. 7 "
Proclamations and Other Executive Acts. Public proclamations,' 1 mes-
sages, 72 orders " 3 and other official acts of the national executive, 74 as in de-
claring a state of war 75 or peace, 76 the existence of martial Jaw TT in certain
territory, are judicially known. Likewise, the granting of amnesty or par-
don, 78 establishing the status of a foreign country, 79 of a set of its people, or
of certain lauds, 8 " as related to the domestic government. The recognition by
the national executive of who is the sovereign, de jure or de facto of a territory
conclusively binds the judges of the government of the forum, 81 as it binds all
other citizens. A government so recognized, 82 its official name and style, 83
64. Simms v. Quebec, etc., R. Co., 22 L C. 74. Woods v. Wilder, supra; 1 Chamb., Ev.,
Jur. 20 (1878). 646 and cases cited.
65. Staton v Atlantic Coast Line R Co., . 75. Woods v. Wilder, supra; Sutton v.
144 X. C. 135, 56 S. E. 794 |UH)7). Tiller, 6 Cold. (Tenn ) 593, 98 Am. Dec. 471
66. State v Candland, 36 Utah 406, 104 (1869).
Pac. 285 (1909). 76. U. S. v Anderson, 9 Wall. (U. S.) 56,
67. 1 Chamherlayne, Kvidence. 645, 646. 19 L ed 615 (1869).
68. 1 Chamb., Ev., 645: R. v. Jones, 2 77. .Jeffries v. State, 39 Ala. 655 (1866).
Campb. 131 (1809). This rule applies to 78. Jenkins v. Collard, 145 U. S. 546, 12
any nation which has exercised jurisdiction S. Ct 868. 36 L. ed. 812 (1891).
over any portion of the territory now con- 79. Jones v. U. 8., 137 U. S '202, 11 S. Ct.
stituting the sovereignty of the forum 80. 34 L. ed. 691 (1890); 1 Chamb., Ev ,
69. York & M. R. Co. v. Winans, 17 How. 646 and cases cited.
(U. S. ) 30 (1854); 15 L. ed. 27. 80. Jones v. U. S., supra; Armstrong v.
70. Kellogg v. Finn, 22 S. D. 578, 119 X U. S, 13 Wall. (U. S.) 154, 20 L ed 614
W. 545 ( 1909). (1871).
71. Moss v Sugar Ridge Tp., 161 Ind. 417, 81. Jones v. U. S., supra.
68 X. E. 896 i 1903); Woods v Wilder. 43 82. Laxier v. Westcott. 26 N. Y. 146, 82
X Y 164, 3 Am. Rep. 684 (1870) : 1 Chamb. Am. Dec 404 (1862) ; Underbill v. Hernan-
Ev, 646 and cases cited. dez, 168 U. S. 250, 18 S. Ct. 83, 42 L. ed.
72. Wells v Missouri Pac. R Co., 110 Mo. 456 (1897); 1 Chamb., Ev., 646 and cases
286, 19 S. W. 530, 15 L. R. A. 847 (1892). cited.
73. State v. Tully, 31 Mont. 365, 78 Pac. 83. U. S. v. Wagner, L. J. 2 Ch. 624 (1866).
760 (1904).
337
JUDICIAL KNOWLEDGE.
170
boundaries, 84 the existence of its colonial possessions, 85 its flag, 86 and other
usual evidence of sovereignty will thereupon be judicially known. The exist-
ence of a state of peace 87 with such a government will be recognized.* 8
337. Judicial Knowledge of Eesults of Law; State. 89 Who, at any par-
ticular time, is the chief executive of the state oy or, for any given series of
years, was the chief magistrate of the state itself, 91 or of any state or nation
which at any time had jurisdiction over it 2 need not be proved. Courts will
also take judicial knowledge as to who are, or at any time in the past were,
officers which the law requires should be commissioned by the governor, 93 at
the head of the principal departments of state 94 and who were their deputies,
appointed under authority of law. 90
Proclamations and Other Executive Acts. A state court takes judicial
cognizance of the proclamations 6 or official messages to the legislature by the
chief executive of the jurisdiction, and of the general orders of military gov-
ernors. 97 it is said that federal courts will not take cognizance of the facts
stated in the messages of a state governor, civil or military. 98 Other executive
acts of the chief magistrate?* or of his principal officer of state 1 or of promi-
nent general officers, 2 may be noticed judicially. The rule is general that acts
of any state functionary which nearly affect the public will be judicially no-
ticed, 3 while those of local importance or limited interest will require proof. 4
92. Jones v. Gale, 4 Mart. (La.) 635
(1817).
84. Foster v. Globe Venture Synd., 1 Ch. 811
(1900).
85. Lazier v. Westcott, supra; Lumley v.
Wabash R. Co., 71 Fed. 21 (1895).
86. Watson v. Walker. 23 N. H. 471 (1851).
87. Trotta'a Adm'r v. Johnson, Briggs &
Pitts, 28 Ky. L. Rep 851, 90 S. W. 540
(1006).
88. Sohoerken v. Swift, etc., Co, 7 Fed.
469, 19 Blatchf. (U. S.) 209 (1881), but
this judicial knowledge does not cover the
question what are the departments of state
in the country so recognized.
Other acts of state of the chief national
executive, Dole v. Wilson, 16 Minn. 525
(1871) ; or by an official high in one of the
chief departments of government, Southern
Pac. R. Co. v. Groeck, 68 Fed. 609 (1895);
or of a prominent bureau in such a depart-
ment, Lerch v Snyder, 112 Pa. St. 161, 4 Atl.
336 (1886), may be judicially known by the
courts.
89. 1 rhamberlayne. Evidence. 647-650.
90. State v. Minnick, Iowa 123 (1863);
Lindsey v. Atty.-Gen.. 33 Miss. 508 (1857):
State v. Boyd, 34 Neb 435, 51 N. W. 964
(1892) : 1 Chamb., Ev., 647 and cases cited.
91. Wells v. Jackson Iron Mfg. Co.. 47 N.
H. 235, 260, 90 Am. Dec. 575 (1866).
93 Abrams v. State, 121 Ga. 170, 48 S. E.
965 (1904).
94. In re Clement, 132 N. Y. App. Div. 598,
117 N. Y. Supp. 30 (1909).
95. People v. Johr, 22 Mich 461 (1871).
96. Hanson v. South Scituate. 115 Mass.
336 (1874); Bosworth v. Union R. Co., 26
R. I. 309, 58 Atl. 982 (1904).
97. Gates v. Johnson County, 36 Tex. 144
(1872); 1 Chamb., Kv., 648 and cases
cited. But see Burke v. Miltenberger, 19
Wall. (U. S.) 519, 22 L. ed. 158 (1873).
98. Houston, etc., R. Co. v. Texas, 177 U.
S. 66, 20 S. Ct. 545, 44 L. ed. 272 ( 1899 )
99. State v Gramelspacher, 126 Ind. 398,
26 N. E. 81 (1890).
1. State v. Scampini, 77 Vt. 92, 59 Atl. 201
(1904).
2. Roach v. Fletcher, 11 Tex. Civ. App. 225,
32 S. W. 585 (1895).
3. State v. Gramelspacher, supra; State v.
Savage, 65 Neb. 714, 91 N. W. 716 (1902);
New York v. Barker, 179 U. S. 279, 21 S. Ct.
121. 45 L. ed. 190 (1900): 1 Chamb., Ev.,
648 and cases cited.
4. State v. Wise. 7 Ind. 645 (1856) ; Dole
v. Wilson, 16 Minn. 525 (1871); Porter T.
171 RESULTS OF LAW. 338
County. Courts of all grades judicially know the persons who hold the
principal executive offices in the counties of the state. 5 The courts of a county
will judicially know all the officers of its own county, 6 but in case of the officers
of other counties a higher degree of official standing is necessary to warrant a
similar course ; 7 and, in the absence of statutory requirement, courts will not
judicially -know wlio are the deputies appointed by county officials. 8 Chief
among county officers judicially known by courts in any county are sheriffs, 9
tax collectors, 10 or other officials discharging the duties usually included in the
office of sheriff. 11
Municipal. All courts know, as a primary result of legislation, what officers
are legally required, at any time, for the administration of municipal govern-
ment, the respective powers and duties of such officers, their terms of office,
amount of salary and similar facts. 12 What individuals, at any time, are the
municipal officers will be known to the courts of the municipality itself. 13 It
has been said that judicial knowledge will not be taken as to who are con-
stables. The fact is not of " public notoriety." 14 The courts of a county in
which a given city is located will judicially know who is, from time to time,
its mavor. 15
n
338. Judicial Knowledge of Results of Law; Public Surveys. 16 Knowledge
of the existence of public surveys made under national authority, as an act of
Parliament, 17 or of Congress, 15 * or under state authority, 19 will be judicially
Waring, 2 Abb. N. Cas. (N. Y .) 230 (1877); 10. Burnett v. Henderson, 21 Tex. 588
1 Chamb, Ev., 648 and cases cited. A (1858).
judge is apt to take judicial notice of a 11. Feld v. Loftis, 140 111. App. 530 (1908),
fact easily ascertainable from public official affirmed 240 111. 105, 88 N. E. 281 (1909).
records. Pleasant Valley Coal Co. v. Salt 12. 1 Chamb., Ev.. 650. Any relation
Lake County, 15 Utah 97, 48 Pac. 1032 which the law has established between in-
(1897). cumbency of one municipal office and that
5. Slaughter v. Barnes, 3 A. K. Marsh. of another, is a proper subject of judicial
(Ky.) 412, 12 Am. Dec 190, note (1821); knowledge. Inglis v. Hughes, 61 Ind. 212
Lanfear v. Mestier, 18 La. Ann. 497, 89 (1878).
Am. Dec. 658, 682, note (1866). 13. Fluagal v. Lards, 108 Mich. 682, 66 N.
6. Russell v. Huntsville, etc.. Co., 137 Ala. W. 585 (1896).
627, 34 So. 855 (1902): Hertig y People, 14. Doe v. Blackman, 1 D. Chipman (Vt.)
159 111. 237, 50 Am. St. Rep 162, 42 N. E. 1^ (1797).
879 (1896) : Slaughter v. Barnes, supra; 1 15. Lucas v. Boyd, 156 Ala. 427, 47 So. 209
Chamb, Ev., 640 and cases cited. (1908): People v. Hall, 45 Colo. 303. 100
7. White v Rankin, 90 Ala. 541, 8 So. 118 Pac. 1129 (1909).
(1889) ; State v. Ledford. 28 X. C. (6 Ired ) 16. 1 Chamherlayne, Evidence. 651. 652.
5 (1845) 17. Birrell v. Dryer, 9 App Cas 345, 5
8. Joyce v. Joyce. 5 Cal. 449 (1855) -. Al- Aspin. 267. 51 L. T. Rep. (X S.) 130 (1884).
ford v. State, 8 Tex. App. 545 (1880). But 18. Ledbetter v. Borland, 128 Ala. 418, 29
see also People v. Johr, 22 Mich. 461 (1871) ; So. 579 (1900) ; Gardner v. Eberhart, 82 111.
People v. Lyman. 2 Utah 30 (1877) 316 (1876); Quinn v. Champajrne. 38 Minn
9. Doe v. Riley, 28 Ala. 164, 65 Am Dec. 322. 37 N. W. 451 (1888); 1 Chamb. Ev.,
334 (1S56): Alexander v. Burnham, 18 Wis. 6.">1 and cases cited.
199 (1864). 19. Bank of Lemoore v. Fulgham, 151 Cal.
234, 90 Pac. 936 (1907).
JUDICIAL KNOWLEDGE.
172
taken by all courts 20 as a secondary legal result of great public notoriety. Not
only is the position of the boundaries of states, counties, towns, township and
other municipalities, as related to the principal lines, established by these sur-
veys, known to all courts of localities within which these facts are of public
interest, but the position of the meridian, 21 range- 2 and section- 3 lines estab-
lished in such localities are regarded in a similar way. In the same manner
the nomenclature, 24 including abbreviations, adopted by the government sur-
veyors, the numbering 25 arid relative position 20 of territorial divisions, as
counties, 27 towns, townships whole 2!> or fractional, 2a and the like, need not be
proved. Incidentally the court judicially knows the actual ;io and relative 31
size, of such divisions; and also their position both as regards each other 32 and
also in relation to the meridian lines 3;; or points of the compass. 34 An admin-
istrative assumption of regularity exists in favor of the surveys made under
official authority. 35 The general methods and results of government surveys
may well be matters for either judicial or common knowledge. 36
339. Judicial Knowledge of Results of Law; Rules and Regulations; Na-
tion. 37 The procedure adopted in and the regulations prescribed by the great
departments of national government, 1 ' 18 as the department of state,'" 9 depart-
ment of the treasury, 4 " department of the interior, 41 post-office, 42 or of war or
20. Wright v. Phillips, 2 Greene (Iowa)
191 (1849)
21. Muse v. Richards, 70 Miss. 581, 12 So.
821 (1893).
22. Muse v. Richards, supra.
23. Hill v. Bacon, 43 111. 477 (1867).
24. Quinn v Windmiller, 67 Cal. 461, 8
Pac. 14 (1885).
25. Sinitha v Flournoy, 47 Ala. 345
(1872) ; Albert v. *alem, 39 Or. 466, 65 Pac.
106S, 66 Pac. 233 ( 1901).
26. Mossman v. Forest, 27 Ind. 233 (1866).
27. Huxford v. Southern Pine Co., 124
Ga 181, 52 8. E 439 (1905). O'Brien v.
Krockinski, 50 111. App 456 (1893): 1
Chamb., Ev., 651 and cases cited
28. Peck v, Sims, 120 Ind. 345. 22 N T E.
313 1889).
29. Webb v. Mullins. 78 Ala 111 (1884).
30. Quinn v. Windmiller. supra
31. Hill v. Bacon, supra.
32. Muse v Richards, supra.
33. O'Brien v Krockinski. supra.
34. Kile v. Yellowhead, SO 111 208 (1875).
On the other hand, facts of a limited
public interest as the topography of a cer-
tain locality, Wilcox v. Jackson. 109 Til
261 (1883) : its minor divisions. Stanberry
v. Nelson. Wright (Ohio) 766 (1834): the
position of a particular lot upon the surface
of the ground, Goodwin v. Scheerer, 106 Cal.
690, 40 Pac. 18 (1895) ; or whether a certain
piece of land is within the public domain,
Schwertltle v. Placer Co., 108 Cal 589, 41
Pac. 448 ( 1895), fall outside the range of the
court's judicial knowledge.
35. Town of West Seattle v. West Seattle
Land Imp. Co., 38 Wash. 359, 80 Pac. 549
(1905).
36. Little v Williams. 88 Ark 37, 113 S
W. 340 (1908) ; Davis v. State, 134 Wis. 632,
115 X. W. 150 (1908).
37. 1 Chamberlayne. Evidence, 652-654
38. Caha v. U. S., 152 U. S. 211. 14 S. Ct.
513, 38 L. ed 415 (1893) ; 1 Chamb, Ev.,
952 and cases cited.
39. Zevely v. Weimer. 5 Tnd. T. 646, 82 S.
W 941 (1904).
40. Low v. Hanson. 72 Me. 104 (1881);
Dominici v. U S.. 72 Fed. 46 (1896); 1
Chamb.. Ev., 652 and cases cited
Regulations adopted by the Bureau of In-
ternal Revenue must be proved. Com. v
Crane. 158 Mass. 218. 33 S. W. 388 (1893).
41. Kimball v. McKee. 149 Cal 435, 86
Pac 1089 (1906): Campbell v. Wood. 116
Mo 196. 22 S W. 796 (1893^ : Caha v. U. S.,
supra : 1 Chamb.. Ev . 652 and cases cited
The main rules of practice of the land
office are of general notoriety and their re-
173
RESULTS OF LAW.
339
the navy, will be judicially known. In general, where a statute gives a depart-
ment or other agency of government the right to pass regulations intimately
affecting the conduct of large sections of the public, courts whose duty it is to
enforce such regulations will judicially know them. 43 Another reason is that
the power to enact these regulations not only to control the action of the public
in doing business with a department, or any of its bureaus, but equally to pass
ordinances tor conduct of the community, as where the lighthouse board deter-
mines the number and kind of lights which shall be placed upon drawbridges
across navigable waters, 44 regulations are made by federal authority for the
quarantine and transportation of infected cattle, 45 or the British orders in
council are adopted by virtue of an act of Parliament, 4 * 5 has often been granted
by the terms of a public statute.
Administrative Boards. The rules and regulations adopted by administra-
tive boards, departments of state or other executive agencies of government are
thus judicially cognized by the courts, where they are such as may be assumed
to ati'ect and, consequently, to be known by, a large proportion of the commu-
nity. 47 On the other hand, regulations which affect only the internal adminis-
tration of the oth'ce adopting them, 48 or a limited portion of the public, will not
be judicially known.
suits need no proof. Parkersville Drainage
Dist v. \\attier, 48 Or 332, 86 Pac. 775
(1906). The practice of the patent office as
to the consecutive numbering of patents falls
within the scope of judicial knowledge. A.
Smith, etc, Carpet Co. v. Skinner, Ml Hun
(X. Y ) U41, 36 X. V Supp 1000 ( 1895)
Department of justice, A court will ju-
dicially know that the action of the president
of the United States in passing upon an ap-
plication for pardon may properly he taken
through the department of justice Perovich
v Perry, 167 Fed. 789 (1909).
Interstate Commerce Commission. The
court knows that the Interstate Commerce
Commission has much to do with the regula-
tion of freight rates on ;irticies transported
in commerce between the states or with for-
eign nations. Law Reporting Co. v. Elvvood
Grain Co.. 135 Mo. App 10. 115 S. \V. 475
(1909)
42. Carr v First Nat. Bank. 35 Tnd App.
216. 73 X. E. 947 (10051 Judicial knowl-
edge has, however, been refused, even in the
federal courts Xasle v. I". S . 145 Fed. 302,
76 0. C. A. (X. Y ) 181 (1906)
43. State v Southern Ry Co.. 141 X. C.
846. 54 S E. 294 (1906)
44. Smith v. Shakopee, 103 Fed. 240. 44
. C. A 1 (1900).
45. Wabash R. Co. v. Campbell, 219 111. 312,
76 N. E. 346 (1905).
46. Reg. v. The Ship Minnie, 4 Can. Exch.
151 (1894).
Autnority of Congress. Regulations made
by an executive department in pursuance of
authority delegated by Congress have the
force of law, and the courts take judicial no-
tice of their existence and provisions U. S.
v. Moody, 164 Fed. 269 (Mich. 1908). But
when the action of an administrative board,
as supervising inspectors of steam vessels,
The E. A. Packer. 140 U. S. 360, 11 S Ct.
794, 35 L. ed. 453 (18901, comes but little
into direct touch with the public, their regu-
lations will not receive judicial notice On
the contrary, where a great department of
government, such as that of agriculture, is
expressly empowered to regulate a matter
which intimately concerns the public, eg,
the transportation of cattle. State v Southern
Ry. Co , supra, the courts of a state will ju-
diciallv notice these regulations It follows
that the practice of the departments will he
judicially recognized and given suitable
weight by the courts in the constntction of a
statute. Griner v. Ra<nrs & Perry. 4 Ga. App.
232. 61 S E 147 (1908).
47. 1 Chamb.. Ev.. 653.
48. Hensley v. Tarpey, 7 Cal. 288 (1857).
340
JUDICIAL KNOWLEDGE.
State. Rules for the transaction of business 49 adopted by the chief depart-
ments of state, 50 or important state 51 or county 52 officials, may be judicially
recognized by the courts. Cognizance is especially easy where the power to
prescribe regulations is expressly conferred by statute. 53 The regulations of
official boards which come but little into contact with the general public must
be proved. 54
340. Judicial Knowledge of Results of Law; Signatures and Seals; National. 56
The great seal of the nation u and the national seal of any government, 57
or any of its provinces, 5!> recognized by the executive of the sovereignty of the
court of the forum, will be judicially cognized; but the seal of an unacknowl-
edged government must be proved by such testimony as the nature of the case
admits. 59 .National courts, and, in many instances, courts of state jurisdic-
tion, 60 judicially notice the signature even by initials, 01 and the seals, of na-
tional officials, of the higher grades 2 such as the chief executive, -' 5 or the head
of departments, of state, or of bureaus under them. 04
Executive Magistrates of Foreign States. Except where other provision is
made by statute, 05 the seal of the chief magistrate, or an executive govern-
mental department, 60 of a foreign state or of any municipality existing
therein 6T will not be noticed, but is a subject of proof.
In any case, unless expressly required to take
judicial notice of the action of an adminis-
trative board, a court may decline to do so
and require that the fact be proved. Robin-
eon v. Baltimore & 0. R Co., 64 W Va. 406,
63 S. E. 323 (1908).
49. People v. Palmer, 6 N. Y. App. Div. 19,
39 X. Y. Supp. 631 (1896).
50. City of Jeffersonville v. Louisville & J.
Bridge Co., 169 Ind. 645, S3 N. E. 337 (1908) ;
1 Chamb., Ev., 654 and cases cited
51. People v. Kent County, 40 Mich. 481
(1879).
52. Mode v. Beasley, 143 Ind. 306. 42 X. E
727 (1895).
53. Larson v. Pendler First Nat. Bank, 66
Neb. 595, 92 X. \V. 729 (1902) For ex-
ample, quarantine regulations, e.g., those af-
fecting the transportation of diseased cattle,
will be noticed. Wabash R. Co. v Campbell,
117 111. App. 630. affirmed 219 111. 312. 76
N. E 34ti (1905).
54. New York City Health Dept. v. City
Real Property Invest. Co, 86 N. Y. Supp.
18 (1904) : People v. Dalton, 4fi N. Y. App.
Div. 264. 61 X. Y. Supp. 263 (1899): 1
Chamb.. Fv . 654 and cases cited.
55. 1 Chamherlayne. Evidence. SS 655-659.
56. Yount v. Howell. 14 Cal. 405 (1859).
57. Watson v. Walker, 23 N. H. 471
(1851) ; Lincoln v. Bartelle, 6 Wend (N. Y.)
475 (1831); The Santissima Trinidad, 7
Wheat. (U S.) 283. 5 L. ed. 454 (1822);
1 Chamb... Ev., 655 and cases cittd
58. Lazier v. Westcott, 26 N Y. 146, 82
Am. Dec 404 (1862)
59. U. S. v. Palmer, 3 Wheat. (U. S.)
610, 4 L. ed. 471 (1818).
60. Yount v Hovvell, supra; Jones v. Gale,
4 Mart. (La ) 635 (1817).
61. Liddon v. Hodnet, 22 Fla. 442 (1886).
A telegram signed with the surname of the
Attorney-General of the United States. Pero-
vich v Perry, 167 Fed. 789 (1909).
62. Ferguson v. Benyon. 16 Wkly. Rep. 71
(1867).
63. Gardner v. Barney, 6 Wall. (U. S. 499,
18 L. ed. 890 (1867).
64. York, etc., Line R. Co v. Winans, 17
How. (U. S.) 30, 15 L. ed. 27 (1854) The
same rule applies to the signatures and seals
of consuls. Barber v. Mexico International
Co.. 73 Conn 587. 48 Atl 758 (1901), and
other diplomatic representatives.
65. Duffey v. Bellefonte Presby. Cong., 48
Pa St. 51 (1864).
66. S(-hoerken v. Swift, etc.. Co.. 7 Fed.
469. ]H Blatchf (U. S.) 200 (1881).
67. Chew v. Kerk, 4 Rawle (Pa.) 163
(1833) ; 1 Chamb., Ev., 656 and cases cited.
175
RESULTS OF LAW.
341
State. The great seal of state of the sovereignty of the forum, 68 the seal
of every state 69 and territory 7ft in the American Union, will be judicially no-
ticed by all courts, state and federal, in the United States. So also the signa-
ture atfd public 71 seal of the present or any past governor of the state, 72 even
when under a former government : T3 and those of leading officers of state, 74
present or past, 75 or of their substitutes, 70 will be noticed by all courts within
a state of the Union.
County. The signature and seal of the principal county executive officials, 77
as recorder of deeds, 78 registers, 79 sheriff, 80 tax collector S1 and the like need
not be proved ; nor the signatures and seals of the deputies of such county
officers s - appointed by virtue of statute, and acting for them. 83
Cities, Toicns, etc. The official signatures and seals of city, town and other
municipal officers will bejioticed judicially, 84 and also those of their deputies
appointed under legal authority. 85
>; 341. Judicial Knowledge of Results of Law; Legislative Department; Gen-
eral Facts. 80 The existence of the national and its own state 8T legislature, the
number of members in its several branches, 88 general facts regarding its mem-
bership, as that a certain body of men comprise the legislature, 89 and when a
certain sessions ended, 91 ' will be noticed by all the courts.
68. Chicago, etc., K. Co. v. Keegan, 152
111 413, 39 X E. 33 (1894).
69. U S. v Amedy, 11 Wheat. (U. S ) 392
( 1826 I.
70. Coit v Millikin, 1 Den. (N. Y.) 376
<1845); U. S. v. Amedy, supra; 1 Chamb.,
Kv , 657 and cases cited.
71. An unollicial seal must be proved.
Beach v Workman, 20 X. H. 379 (1850)
72. Powers v. Com., 110 Ky ?>S6. 61 S. W.
735, 63 S. W. 976, 22 Ky L. Rep 1807, 53
L R A. 245 ( 1901 ; 1 Chamb., Ev .. 657 and
cases cited.
73. .Jones v. Gale's Curatrix, 4 Mart. (La.)
635 (1817).
74. Cary v. State, 76 Ala. 78 ( 1884) ; Weth-
rbee v. Dunn, 32 Cal. 106 (1867) : Roach v.
Fletcher, 11 Tex. Civ. App. 225, 32 S W. 585
(1895) ; 1 Chamb., Ev., 657 and cases cited.
75. Smyth v Xew Orleans. C. & B. Co., 35
C C. A. 646. 93 Fed. 399 (18091.
76. People v Johr, 22 Mich 461 (1871).
77. Himmelmann v. Hoadley. 44 Cal. 213
(1872); Wetherbee v. Dunn, supra.
78. Scott v. Jackson. 12 La Ann. 640
(1857).
79. Francher v. De Montegre. 1 Head
(fenn ) 40 (1858)
80. Thielmann v. Burg. 73 Til 293 (1874) :
Alford v State, 8 Tex. App. 545 (1880);
Martin v. Aultman, 80 VVis. 150, 49 X. W.
749 ( 1891 ) ; 1 Chamb., Ev., 658 and casea
cited.
81. Wetherbee v. Dunn, supra; Walcott T.
Gibbs, 97 111. 118 (1880).
82. Himmelmann v. Hoadley, supra.
83. Himmelmann v. Hoadley, supra : Martin
v. Aultman, supra. Formal proof of the of-
ficial signatures on a county warrant must be
made where their genuineness is placed in
issue by the pleadings. Apache County v.
Barth, 177 U. S. 538, 20 S. Ct. 718. 44 L. ed.
878.
84. 1 Chamb , Ev., 659.
85. Himmelmann v. Hoadley, supra. The
courts of England will judicially know the
seal of the city of London. Woodmasa v.
Mason. 1 Esp 53 (1793).
86. 1 Chamherlayne. Evidence, 660-663.
87. People v Burt. 43 Cal. 560 (1872).
House of Commons. Bradlaugh v. Gossett,
12 Q B D 271 (1884)
88. State v. Mason. 155 Mo. 486. 55 S. W.
636 (1900)
89. State v. Kennard. 25 La. Ann. 238
(1873): State v Schnitger, 17 Wyo. 65, 95
Pac. 698 (1908).
90. Perkins v. Perkins. 7 Conn 558. 13
Am. Dec 120 (1829) : 1 Chamb . Ev.. 660.
But facts pertaining to individuals aa that
341
JUDICIAL KNOWLEDGE.
176
Municipalities. The legislative branch of a municipal government, as the
aldermen of a city," 1 will be judicially noticed.
Journah. Journals of a branch of the legislature are public records.
" They prove their own authenticity." ya Their existence and function in legis-
lation are judicially known. 1 ' 3 Judges of a majority of American states""
hold that they may resort to these journals for the purpose of ascertaining what
is the law which they are charged with the responsibility of knowing at their
peril ; 9o when a statute went into effect whether it was properly enacted, and
facts of similar nature. Jn so doing, they judicially notice facts brought to
their attention on such inspection, and give effect to them even to the extent
of controlling the official certificate of enactment. 1 '
Legislative Proceedings. Courts will take judicial notice of legislative pro-
ceedings, for example, that the legislature has done certain official acts other
than the enactment of laws; e.g., expelled certain of its members. 97 Mu-
nicipal legislative bodies stand in a somewhat similar position. 98
Direct Results of Legislation. The judge knows judicially the direct re-
sults of legal enactments by public statutes, e.g., that the sale of intoxicating
liquor is prohibited in a particular county of the state. 9 " That certain coim-
a particular person is a member, State v.
Polacheck, 101 Wis. 427, 77 X. W. 708
(1898); or with relation to the internal
machinery of law making, Judah v. Vincennes
University, 16 hid. 56 (1861); State v Dow,
53 Me. 305 (1865): are outside the cate-
gory; except where the fact is one of noto-
riety. Walden v. Canfield, 2 Hob. (La.) 466
(1842).
91. Fox v. Com., 32 Leg. Int. (Pa.) 257,
i VV. N. C. 243 (1873)
92. Grob v. Cushman, 45 111. 119 (1867);
State v. Denny, 118 Ind. 44!) (1888).
93. State v Swiggart, 118 Tenn. 556. 102
S. \V. 75 (1907).
94. Sherman v. Story, 30 Cal. 253, 275
(1866); Hart v. McElroy, 72 Mich. 446, 40
N. W. 750 (1888); People v. Chenanjro, 8
N. Y. 317 (1853) ; Dane County v. Keindahl,
104 Wis. 302, 80 N. W. 438 (1890) : Post v.
Supervisors, 105 U S 667 (1881) ; 1 Chamb.,
Ev , 661 and cases cited.
95. 1 Chamb., Ev , $ 571 et seq.
96. The right of the legislature to amend
its journal so as to conform to the facts at
the same session, is not disputed. Turley
v Logan, 17 111 151 (1855).
In other jurisdictions different views pre-
vail. Xot only is the certificate of the proper
official that the act has duly become a law
been accepted as final, Harwood v. Went-
Avorth, 162 C. S 547, 16 S. Ct 390 (1895) ;
but the journals have been refused the status
of public records. Sherman v. Story, supra ;
Pangborn v. Young, 32 X. J. L. 29 (1866).
In these states they have been treated merely
as public documents, (Jrob v Cushman,
supra; Evans v. Browne. 30 Ind. 514, 95
Am. Dec. 710 (1869); which were to be
proved by evidence in the usual way, Cole-
man v.. Dobbins, 8 Ind. 156 (1S56;
Burt v Winona, etc., R Co., 31 Minn.
472, 18 X. W. 285 (1884); 1 Chamb., Ev.,
661 and cases cited; upon an issue as to the
validity of the statute regularly raised Il-
linois Cent, H. Co v People, 143 111 434,
33 X. E. 173 (1892); 1 Chamb., Ev , 661
and cases cited. The question, it will be
noted, is really one of administration.
97. French v. State Senate, 146 Cal. 604,
80 Pac. 1031, 69 I. H. A. 556 (1905). An
English court judicially knows the order and
course of proceedings in Parliament. Lake v.
King, 1 \Yrns. Saund. 131b (1S46).
98. 1 Chamb., Ev.. 662 Thus, where a
city council is required by law to meet at
certain intervals, the fact will be known to
the court. Stoner v. City Council of Los
Angeles, 8 Cal App. 607. 97 Pac. 692 (1908).
99. Bass v. State, 1 Ga. App. 728, 790, 57 S.
E. 1054 (1907).
177 RESULTS OF LAW. 342
ties, cities, towns 1 and the like, are municipal corporations, need not be proved.
Xor need the statute be introduced in evidence. 2
342. Judicial Knowledge of Results of Law; Judicial Department; General
Facts. 3 Among results of a primary nature established by law are the exist-
ence, organization, jurisdiction and powers of the judge's own court, 4 and of
other courts established by the constitution 5 or statutes of the state y or nation
under the authority of which the court is organized."
Inferior Courts. The same rule or practice applies to courts of inferior
jurisdiction, 8 as county " or municipal l " courts.
Special Tribunals. Xo proof need be offered as to the existence, jurisdic-
tion, and the like, of federal commissioners, 11 justices of the peace 12 and tri-
bunals of special functions as probate 13 courts, of inquest 14 or other irregular
judicial bodies. 15
Federal Courts. The jurisdiction of the federal courts over places within
the limits of a state ceded to the national government by the state legislature
will be judicially known; 16 but not where the acquisition of title is by pur-
chase or by the exercise of eminent domain by national authority. 1 '
Foreign Courts. The jurisdiction of a foreign court is not noticed. 18 But
the courts of any forum recognize, as a fact of notoriety. " that tribunals are
established in the several states for the adjustment of controversies and the
ascertainment of rights; '' 10 other notorious facts concerning courts of a sister
1. City of Brownsville v. Arbuckle, .'JO Ky. 10. Hearson v. Graudine, 87 111. 115
L. Hep. 414. !)! S. U . 2:}M i I'.iOTl. ' 1*77 .1 : Heffernan v. Hervey, 41 W. Va. 766,
2. In re Mohawk River U ridge Connecting 24 S. E. 502 il896i. A court of quarter
Towns of Rotterdam and Glenville. 12S X. sessions judicial knows the petty sessional
i,App. Div. 54, 112 X. \. Supp 428 i 1!08) ; divisions of a county. R. v. Whittles, 13
1 Chamb., Ev., 663 and cases cited. Q. B. 248 < 1849 I
3. 1 Chamberlayne, Evidence, ^ 664-675. 11. Ex parte Lane. 6 Fed 34 (1881).
4. State v. Schlessinger, 38 La. Ann. 564 12. Olmstead v. Thompson, 91 Ala. 130, 8
(1886). So. 755 (1800) : Goodsell v. Leonard. 23 Mich.
5. Tucker v. State, 11 Md. 322 (1857). 374 (1871).
6. Russell v. Sargent, 7 111. App. 98 .1880); 13. La Salle v. Milligan. 143 111. 321, 32
In re Hackley, 21 How. Pr. 103 (1861); X. E. 106 (1802): 1 Chamb., Ev., 666 and
State v. Marsh, 70 Vt. 288, 40 Atl. 836 cases cited.
(1898) ; 1 Chamb., Ev., 664 and cases cited. 14. State v. Marsh, supra.
7. Headman v. Rose, 63 Ga. 458 (1879); 15. Tucker v. State. 11 Md. 322 (1857).
Ledbetter v. U. S., 108 Fed. 52, 47 C. C. A. The court cannot take judicial notice in case
191 (1901); 1 Chamb., Ev., 664 and cases of a grand jury. Chicago, etc.. Coal Co. v.
cited. Bankruptcy courts are within the People, 114 111. App. 75, judg. aff'd 214 111.
rule. Lathrop v. Stuart. 5 McLean (U. S.)- 421. 73 \. E. 770 i 190.V) .
167 (1850). The existence of all courte 16. Lasher v. State. 30 Tex. App. 387. 17
established by Act of Parliament will be S. \Y. 1064. 28 Am. St. Rep. 922 i 1891) : 1
judicially noticed in England. Tregany v. Chamb.. Ev.. 57 1, 667.
Fletcher, 1 Ld. Raym. 154 (1694). 17. People v. Collins. 105 Cal. 504. 30 Pac.
8. Xelson v. Ladd, 4 S. D. 1 (1893). 16 n<W>5i.
9. St. Louis, etc., R. Co. v. Magness, 68 18. Xewell v. Xewton. 10 Pick. (Mass.) 470
Ark. 289, 57 S. W. 033 (1000); Lone v. (1830).
State. 1 Tev. App 700 tl*77): 1 Chamb., 19. Dozier v. Jovce. 8 Port. (Ala.) 303,
r.v.. 665 and cases cited. 312 (1838); 1 Chamb., Ev., 668 and cases
342
JUDICIAL KNOWLEDGE.
ITS
state or foreign country, as that courts of general jurisdiction are courts of
record 20 are equally known.
Districts. The location and boundaries of the judicial districts, into which
the nation 21 or a state 22 or a territory is divided, are established by statute and
are, therefore, primary results of legislation of which judicial notice is neces-
sarily taken." 3
Terms. Courts, whether of general or inferior jurisdiction, 24 judicially
know the times appointed by statute for holding terms of any court lawfully
established by state or national" 5 authority in their jurisdiction; 20 whether
the term is that of the judge's own court 2T or that of a court whose action is
under review, 2 * or the court is one of limited jurisdiction. 2 '-'
Administrative Boards. The same rule applies to administrative boanU.
exercising judicial functions, as county commissioners 3 " or supervisors; 3l and
the places at which their sittings are appointed to be held. 32
Length of Terms. Judicial knowledge extends to cover the length of terms,
when the fact is determined by law; 3;{ subject, of course, to the court's power
of adjournment. 34
Sessions; Lenytli of Actual Sitting. The actual length of a session or sit-
ting of a court cannot judicially be known ; 35 nor the time at which a grand
YV. 666 (1895); 1 Chamb., Ev., 670 and
cases cited.
28. Olmstead v. Thompson. 91 Ala. 130,
8 So. 755 (1800) ; Talbert v. Hopper. 42 Cal.
397 (1871); Moss v. Sugar Ridge Tp., 161
Ind. 417, 68 X E. 806 (1903): Matter of
Hackley, 21 How. Pr. (X. Y.) 103 (1861) : 1
C'hamli., Ev., 670 and cases cited. i
29. Van Duzer v. Towne, 12 Colo. App. 4,
55 Pac. 13 ( 1808) ; State v. Broderick, 70 Mo.
622 (1879); 1 Chamb., Ev., 670 and cases
cited.
30. Kane County v. Young, 31 111. 194
(1863); Collins v. State, 58 Ind. 5 (1877).
31. State v. Smith. 87 Miss. 551 (1906).
32. Ross v. Anstill, 2 Cal. 183. 191 (1852) ;
1 Chamb., Ev., 671.
33. McMullan v. Long (Ala. 1905), 39 So.
777; Durre v. Brown, 7 Ind. App. 127 (1893) ;
1 Chamb., Ev., 672 and cases cited.
34. Harrison v. Meadors, 41 Ala. 274
(1867 K Whether an act done on a certain
day was done in term time or vacation,
Rogers v. Venis, 137 Ind. 221, 36 X*. E. 841
(1893), are also fact* of the almanac. 1
Chamh., Ev.. 672, 727.
35. Dudley v. Barnev. 4 Kan. App. 122. 46
Pac. 178 (1896) ; Hadley v. Bernero, 97 Mo.
App. 314, 71 S. W. 451 (1902); 1 Chamb.,
Ev., 673 and cases cited.
cited. The rule applies to Canada. Lazier
v \\estcott, 26 X. Y. 146, 82 Am. Dec. 404
( 1 S62 ) .
20. Morse v. Hewett, 28 Mich. 481 (1874).
The rule does not apply to courts of inferior
jurisdiction. Holly v. Bass, 68 Ala. 206
(1880) ; Hill v. Taylor, 77 Tex. 295, 14 S. W.
.366 (1890).
21. State v Arthur, 129 Iowa 235, 105 X.
W. 422 (1905); 1 Chamb., Ev., 669 and
cases cited.
22. Alabama, etc., Ins. Co. v. Cobb, 57 Ala.
547 ( 1877 ) ; 1 Chamb., Ev., 669 and cases
cited.
23. Chicago, etc., R. Co. v. Hyatt, 48 Neb.
161, 67 V VY. 8 (1896). Courts will take
judicial notice that a particular municipality
is within the jurisdiction of a particular
court. Davis v. State, 134 \Yis. 632. 115 X.
\V. 150 (1908).
24. Ex parte Voncent, 43 Ala. 402
(1869).
25. Ledbetter v T. S., 108 Fed. 52, 47
C. C. A. 191 (1901); 1 Chamb., Ev., 670
and cases cited.
26. Edwards v. State, 123 Ga. 542, 51 S. E.
630 (1905); Ery v. Radzinski, 219 111. 526.
76 X. E. 694 11906); 1 Chamh., Ev., 670
and cases cited.
27. Harwood v. Toms, 130 Mo. 225, 32 S.
179
RESULTS OF LAW.
342
jury in fact met, 36 or the time at which any court or board, other than the
court in question, 37 actually adjourned the sitting. 38
Judges and Magistrates. While the number of judges established for a
particular court, 31 * the length of their term of office, 40 the amount of their
salaries 41 and the manner of their selection 42 and qualifications are cognized as
" matter of law," knowledge as to what persons compose the judiciary of the
state or nation cannot well be so regarded. It is, however, deemed a matter of
notoriety, certainly in the legal community 43 of which judicial notice is taken.
The courts of England, 44 Canada 45 and America 4G know who are and at any
time were, 47 either officially or as a locum tene-ns,** judges of their own tri-
bunals 4<J or of any superior court of record within the jurisdiction, state or
national, 50 including courts of probate. 51 They also know who was the pre-
siding officer at a given date, 52 at what time, 53 and under what law 54 he was
selected, 55 whether a proper commission has issued 56 and at what time a par-
ticular judge resigns his office 5T or, for any other reason, ceased to be a judge. 58
Inferior Courts. In America, according to the prevailing view, judicial
cognizance is taken as to who are justices of inferior tribunals 59 or even as to
who are justices of the peace, 60 or magistrates commissioned for or acting in
36. Matter of Hackley, supra.
37. Hadley v. Bennero, supra.
38. Baker v. Knott, 3 Ida. 700, 35 Pac. 172
(1893).
39. Vahle v. Brackenseik, 145 111. 231
(1893); 1 Chamb., Ev., 674 and cases
cited.
40. People v. Ebanks, 120 Cal. 026, 52 Pac.
1078 (1898) ; Upton v. Paxton, 72 Iowa 295,
33 X. \V. 773 (1887) ; 1 Chamb., Ev.. 674
and cases cited.
41. McKinney v. O'Conner, 26 Tex. 5
(1861).
42. Alayes v. Palmer, 206 Mo. 293, 103 S.
W. 1140 (1907).
43. Ward v. State (Ala. 1905), 39 So. 923.
44. Van Sandau v. Turner, 6 Q. B. 773, 786
(1845).
45. Watson v. Hay, 5 N. Brunsw. 559
(1847).
46. Means v. Stow, 29 Colo. 80, 66 Pac. 881
(1901): Vahle v. Brackenseik, supra: State
v. Ray, 97 X. C. 510, 1 S. E. 876 (1SS7):
State v. Marsh, 70 Vt. 288, 40 At I. 836
(1897); 1 Chamb., Ev., 674 and cases
cited.
47. Indianapolis St. R. Co. v. Lawn. 30
ind. App. 515, 66 X. E. 508 (1003).
48. Bell v. State, 115 Ala. 25, 22 So. 526
(1896).
49. Gilliland v. Sellers, 2 Ohio St. 223
(1853).
50. Vahle v. Brackenfseik, supra ; Barnwell
v. Marion, 58 S. C. 459, 36 S. E. 818
(1900).
51. McCarver v. Hertzberg, 120 Ala. 523,
25 So. 3 (1898).
52. Kilpatrick v. Com., 31 Pa. 198
(1858).
53. Fay v. Miville, 2 Rev. Leg. 333.
54. Clark v. Com., 29 Pa. St. 129 (1858).
55. De la Rosa v. State (Tex. Crim. App.
1893), 21 S. W. 192.
56. Follain .v. Lefevre, 3 Rob. (La.) 13
(1842).
57. People v. McConnell, 155 111. 192, 40
N. E. 008 (1895).
58. People v. Ebanks, supra; 1 Chamb.,
Ev., 674.
59. Perry v. Bush. 46 Fla. 242, 35 So. 225
( 1 903 ) ; People v. McConnell, supra ; In-
dianapolis St. Ry. Co. v. Lawn, supra; Kil-
patrick v. Com., supra; 1 Chamb., Ev., 675
and cases cited. Contra: Ripley v. Warren,
2 Pick. (Mass.) 592 (1824): County of San
Joaquin v. Budd, 96 Cal. 47 (1892).
60. Webb v. Kelsey, 66 Ark. 180. 49 S. W.
819 (1899) ; Gilbert v. Xational Cash-Register
Co., 176 111. 288, 52 X. E. 22 (1898); 1
Chamb., Ev., 675 and cases cited.
343
JUDICIAL KNOWLEDGE.
180
the county in which the court is sitting. 01 Judicial notice has been taken as
to who are the magistrates of parishes. 02
Other States. But judicial cognizance cannot be taken as to who are judges,
even of courts of record, li:{ in another state, or who are magistrates commis-
sioned to act in the jurisdiction of a sister state.' 54
343. Judicial Knowledge of Results of Law; Attorneys and Counsel.' 1 r<
Judicial notice is taken of who is attorney-general, 00 but not of who are dep-
uties." 7 .N'o necessity exists for proving any changes in the incumbency of
the office. 08 Judges know, judicially, who are the prosecuting attorneys of
the state 09 and their assistants T " 'or deputies appointed under authority of
law; 71 and the length of their terms of office. 72 A court will notice also who
are the attorneys ' ;! or counsellors admitted to its bar, and arc regularly
* O 9 r
licensed; 74 but does not know those legally practicing before the bar of an
inferior domestic tribunal. 7 "
Signatures and, Seals. The signatures of attorneys admitted to practice in
the court will, when attached to pleadings 70 or otherwise used, as an attorney,
often be judicially noticed. The signature of a prosecuting attorney, in his
official capacity, will be noticed. 77
Clerks. Judges judicially know who are the clerks of the various courts, 78
v. Jacobs, 22 \Vkly Notes Cas. (Pa.) 34S
(1888): Cothren v. Connaughton, 24 Wis.
134 (18ti9); J Chamb., Ev., 676 and cases
cited.
74. Ferris v Commercial Nat. Bank, supra;
bloan v Hallowell, 83 Xeb. 7(52, 120 N. W.
44!) (1909).
75. (.lark v. Morrison, "> An/. 349, 52 Pac.
985 (1898); Sutton v Chicago, etc., K Co..
98 Wis 157, 73 N. \V. 9!I3 (1898). Whether
lie is still in active practice, Cothren v.
( onnaughton, supra; or continues to reside
in the state, Sutton v. Chicago, etc., R. Co.,
supra, must be proved, if claimed.
76. Markes v. Epstein. 13 X. V Civ. Proc.
'. 293 (1888); Strippelmann v ; Clark, 11
Tex. 296 i 1854.) : 1 Chamb., Kv.. 677. But
not where the signature is made by the at-
torney in his personal capacity, Masterson
v. Le Claire, 4 Minn. 163 (18(50) : as where
he appears pro se Alderson v. Bell. 9 Cal.
315 (1858); Masterson v. Le Claire, supra.
77. State v. Kinney, 81 Mo. 101 (1883),
although the description of the office is in-
correct.
78. White v Rankin, 90 Ala. 541, 8 So. 118
(1890); Major v State, 2 Sneed (Tenn.) 11
(1854). See also State v. Kinney, 21 S. D.
390, 113 N. W. 77 (1907).
61. Graham v. Anderson, 42 111. 514 i 1867) .
The view in England is to the contrary
Van Sandau v Turner. 6.Q. B. 773, 9 Jur. 296,
51 E. C. L. 773 (1845).
62. Despau v. Swindler, 2 Mart. (La.)
X. S. 705 (1825).
63. r el lows v. Menasha, 11 Wis. 558
(1860).
64. In re Keeler, Hempst (U. S.) 300, 14
-ted Cas. No. 7,637 (1843).
65. 1 Chamberlayne, Kvidence, (576-681
66. Curry v. State, 7 Baxt. (Tenn.) 154
(1874); 1 Chamb., Ev., 676 and case,,
cited.
67. Crawford v. State, 155 Tnd. 692, 57 X.
E. 931 (1900).
68. State v. Evans, 8 Humphr. (Tenn.) 110
(1847)
69. State v. Kinney. 81 Mo. 101 (1883):
and of particular counties in the state. State
v Campbell, 210 Mo. 202. 32 S. \V. 670
(1908).
70. People v. Lyman. 2 Utah 30 (1877).
71. State v. C.uglielmo, 46 Or. 250, 79 Pac.
577 11905).
72. State v. Seibert. 130 Mo. 202. 32 S. \V.
670 (1895).
73. Ferris v Commercial Xat. Bank, 158
111. 237, 41 X. E. 1118 (1895); Philadelphia
181 RESULTS OF LAW. 343
whether state 79 or federal, 80 of the forum, and who are their deputies. 81 As
a rule, presenting but few exceptions/ 2 courts do not judicially notice who are
the clerks of court in other states; and it has been assumed 83 that the clerk of
an inferior court would not be judicially noticed.
Court Officers and Officials. Judges will know for judicial purposes who
are the customary 84 and legally appointed officers and officials of their own
courts 85 and of other courts of state 8G or national s7 jurisdiction exercising
judicial functions within the state.
Sheriffs, Constables, etc. Courts judicially and officially know who is sher-
iff of a particular county, 88 and in certain jurisdictions his legally appointed
deputies; 89 though not so in others. 90 Constables acting as court officers 91
stand in the same position. The length of the term of these respective offices
is judicially known. 92
Practice. Judges judicially notice the rules regulating the practice of their
own courts, 93 but not of those of inferior tribunals, 94 unless required to do so
by statute or otherwise. The judge of a federal court judicially knows the
practice and procedure of his own tribunal, but not those of a state court. 95 An
appellate court judicially knows the rules and practice of the court whose pro-
ceedings it has the duty of revising. 95 A judge will assume that the practice
of other domestic courts, 1 ' 7 of law or equity, 98 is, in a general way, the same as
that of his own. Courts of general jurisdiction will not judicially know the
79. Campbell v. West. 86 Cal. 1!>7, 24 Pac. (La.) 705 (1825). But see Norvell v. Mc-
1000 (1890); Mackimon v. Barnes, 06 Barb. Henry, 1 Mich. 227 (1849).
(X. V.) 91 (1867) ; Goodwin v. Harris, 2S 87. Buford v. Hickman, 4 Fed. Cas. No. 2,
Tex. Civ. App. 7, 66 S. \V. 308; 1 Chamb., 114a, Hempst. I U. S.) 232 (1834).
Ev., 678 and cases cited. 88. Thompson v. Haskell, 21 111. 215, 74
80. Ledbetter v. U. S., 108 Fed. 52, 47 Am. Dec. 98 (1859); Ex parte Bargagliotti,
C. C. A. 191 ( 1901 ) . 6 Cal. App. 333, 92 Pac. 96 (1907) ; 1 Chamb.,
81. Himmelmann v. Hoadley. 44 Cal. 213 Ev., 680 and cases cited.
(1872); State v. Barrett, 40 Minn 65, 41 89. Martin v. Aultman. 80 Wis. 150, 49
'X. W. 459 (1889). Their names need not N. W. 749 (1891)
be proved. Mountjoy v. State, 78 Ind. 172 90. State Bank v. Curran, 10 Ark. 142
(1881). But the name of a clerk, as that (1849); Ward v. Henry, 19 Wis. 76 (1865).
of an individual, is not a subject of judicial 91. Harris v Buehler, 1 Pennew. (Del.)
cognizance. Com. v. Fray, 126 Mass. 235 346, 40 Atl. 733 (1898).
(1879). 92. Hagland v. Wynn, 37 Ala. 32 (1860).
82. Monroe v. Eastman, 31 Mich. 283 93. Packet Co. v. Sickles, 19 Wall. (U. S.)
(1875). 611 (1873).
83. Davis v. McEnaney. 150 Mass. 451, 23 94. Bowen v. Webb, 34 Mont. 61, 85 Pac.
X. E. 221 (1890). 739 (1906).
84. See Frost v Hayward. 2 Dowl. P. C. 95. Handall v. New England 0. of P., US
(X. S ) 566, 6 Jur. 1045, 12 L. J Exch. 84 Fed. 782 (1902).
(1842). 96. .lohnson-Wynne Co v. Wright. 28 App.
85. Cary v. State, 76 Ala. 78 (18S4) : Miller Cas. (D. C ) 375 (1906).
v Matthews, 87 Md. 464. 40 Atl. 176 (1898) ; 97. Newell v. Newton. 10 Pick. (Mass.)
1 Chamb., Ev.. 679 and cases cited. 470 (.1830).
86. Despau v. Swindler, 3 Mart (N. S.) 98. Contee v. Pratt. 9 Md. 67 (1856); 1
Chamb., Ev., 681 and cases cited.
JUDICIAL KNOWLEDGE.
182
rules of practice of inferior tribunals." But without statutory regulation, 1 lie
will not judicially cognize with precision the rules and regulations of other
tribunals in the same jurisdiction, 2 or know or make any assumption as to the
procedure or practice of courts of a sister state :J or foreign country.
344. Judicial Knowledge of Results of Law; Court Records, Papers, etc. 4
Both as a matter, at times, of legal requirement and by reason of the difficulty
of making other proof and the ease and appropriateness of this method of estab-
lishing facts on a court record or in court papers-, judges take judicial notice
of such records and papers. 5 They will, under proper circumstances, examine
the records, papers or docket entries " on file in a case either sua sponte* or at
the suggestion of counsel. 9 Pacts so ascertained will be taken as proven ; 1(l
it being sufficient that the record or papers should be produced 1] and identi-
fied to the satisfaction of the jmlge. 12
Own Court; Same Case. It will not be necessary to prove to a judge the
record or papers in a case before him for trial, 13 whether originally filed in his
own court or transmitted from another. 14 He will, as a rule, judicially notice
their existence 15 and any facts which appear on their inspection, 16 either as
endorsements of the date of filing, 17 amount of claim, 18 and the like. The
99. Powell v. Springston Lumber Co., 12
Idaho 723, 88 Pac. 97 (1900); Bonney v.
McClelland, 138 111. App. 449, judg. alfd 235
111. 259, 85 N. E. 242 (1908).
1. Kindel v. Le Bert, 23 Colo. 385, 48
Pac. 641, 58 Am. St. Rep. 234 ( 1897) .
2. Sweeney v. Stanford, 00 Cal. 362 (1882) ;
Kindel v. Le Bert, supra; Gudgeon v. Casey,
62 111. App. 599 (1895); Rout v. Ninde. 118
Ind. 123, 20 N. E. 704 (1888) ; 1 Chamb., Ev.,
08! and cases cited.
3. Newell v. Newton, supra.
4. 1 Chamberlayne, Evidence, 682-690.
5. Hollenbach v. Schnabel, 101 Cal. 312,
35 Pac. 872, 40 Am. St. Rep. 57 (1894);
Waterbury Nat. Bank v. Reed, 231 111. 246,
83 N. E. 188 ( 1907 ) ; Stewart v. Hosengren,
66 Neb. 445, 92 N. W. 586 (1902) ; 1 Chamb.,
Ev., 682 and cases cited.
6. Dewey v. St. Albans Trust Co., 60 Vt.
1, 12 Atl. 224, 6 Am. St. Rep. 84 (1887).
7. Dewey v. St. Albans Trust Co., supra.
8. Denny v. State. 144 Ind. 503, 42 N. E.
929, 31 L* R. A. 726 (1895).
9. Denny v. State, supra.
10. Neville v. Kenny, 125 Ala 149, 28 So.
452, 82 Am. St. Rep. 230 (1899).
ll.-Watkins v. Martin, 69 Ark. 311, 65 S.
W. 103, 425 (1901).
12. Hollenbach v. Schnabel, supra; McGuire
v. State, 70 Miss. 504, 25 So. 495 (1898).
13. Bailey v. Kerr, 180 111. 412, 54 N. E.
105 (1899); State v. Bowen, 16 Kan. 475
( 1876) ; Pittel v. Fidelity, etc., Ass'n, 86 Fed.
255 (1898) ; 1 Chamb., Ev., 683 and cases
cited.
14. Boteler v. State, 8 Gill & J. (Md.) 359
(1836). For example, the probate papers
relating to a given estate in connection with
which the litigation in suit arises. Knight
v. Hamaker, 40 Or. 424, 67 Pac. 107 ( 1901 ) .
15. Hollenbach v. Schnabel, supra; Taylor
v. Adams, 115 111. 570, 4 N. E. 837 (1886) ;
State v. Postlewait, 14 Iowa 446 (1862);
Stewart v. Rosengren, supra.
16. World's Columbian Exposition Co. v.
Lehigh, 94 111. App. 43.3 (1900): State v.
Thomas, 74 Kan. 360, 86 Pac. 499 (1906);
State v. Ulrich, 110 Mo. 350, 19 S. W. 656
(1892) ; Farmers' L. & T. Co. v. Hotel Bruns-
wick Co., 12 App. Div. (N. Y.) 628, 42
N. Y. Supp. 693 (1896): 1 Chamb., Ev.,
683 and cases cited.
17. Chapman v. Currie, 51 Mo. App. 40
(1892) ; Fellers v. Lee, 2 Barb. (N. Y.) 488
(1848).
18. Chicago, etc., R. Co. v, Minard, 20 111.
9 (1858).
183 RESULTS OF LAW. 344
judge will know judicially any fact that can be gathered from the face of the
record or papers. 19
Own Court Other Cases. Courts do not generally take judicial notice of
the records in other cases than that on trial 20 as it is deemed better for the
parties themselves to submit what evidence they consider material, although
this is sometimes done in cases of great notoriety 21 or in actions in rem. 22
Supplementary proceedings are treated as part of the main case and noticed
only when growing out of the same case as is on trial. 23
Other Courts. For still stronger reasons courts do not take judicial notice
of the records, papers, etc., of other courts, 24 unless such knowledge is required
by statute. 25 So state courts do not take cognizance of the proceedings of fed-
eral courts 26 and federal courts do not know judicially the proceedings of state
courts, 27 and courts do not know judicially of the proceedings in courts outside
of their jurisdiction.
Signatures and Seals. The seal of a court of admiralty being of interna-
tional jurisdiction will be recognized in all other courts 28 and a state court will
judicially know the signature and seal of federal courts 29 and federal courts
judicially know the signature and seal of state courts 30 and even the official,
seal and signature of notaries public have been judicially noticed. 31
19. State v. Kesner, 72 Kan. 87, 82 Pac. 24. Hall v. Cole, 71 Ark. 601, 76 S. W.
720 (1905) ; George v. State, 59 Xeb. 163, 80 1067 (1903).
N. W. 486 (1899); Blum v. Stein, 68 Tex. 25. Ohm v. San Francisco (Gal. 1890), 25
608 (1887); 1 Chamb., Ev., 683 and cases Pac. 155.
cited. For example, defects on the record. 26. A state court cannot take judicial notice
State v. Ulrich, supra; Searls v. Knapp, 5 of bankruptcy proceedings. Tube City Min-
S. D. 325, 58 X. W. 807, 49 Am. St. Rep. ing & Milling Co. v. Otterson, 16 Ariz. 305,
S73 (1894). But not acts in pais concern- 146 Pac. 203, L. R. A. 1916 E 303 (1914).
ing a cause. Foster v. Chicago, etc., R. Co., 27. Stewart v. Masterson, 131 U. S. 151, 9
10 Tex. Civ. App. 476, 31 S. W. 529 (1895). S. Ct. 682, 33 L. ed. 114 (1888).
20. Lake Merced Water Co. v. Cowles, 31 28. Lincoln v. Battelle, 6 Wend. (N. Y.)
ral. 214 (1866). 475 (1881).
21. Story v. Ulman, 88 Md. 244, 41 Atl. 120 29. Adams v. May, 33 Conn. 419 (1866).
(1898). 30. Turnbull v. Payson, 95 U. S. 418
22. Cushman Co. v. Goddard, 37 C. C. (1877).
A. 221, 95 Fed. 664 (1S99). 31. Black v. Minneapolis & St. L. R. Co.
23. Lester v. People, 150 111. 408, 37 N. E. (Iowa 1903), 96 N. W. 984.
1004 (1894).
CHAPTER IX.
KNOWLEDGE; COMMON.
Common knowledge, 345.
administrative advantages, 346.
What knowledge is common, 347.
knowledge as affected by jurisdiction, 348.
restricted communities, 349.
potential knowledge, 350.
General notoriety; classes of facts so established; res gestce, 351.
What facts are covered by the rule, 352.
nature, 353.
science, 354.
facts of geography, 355.
facts of human experience, 356.
standards of reasonable conduct, 357.
facts of social life, 358.
facts of history, 359.
facts of business, 360.
evidence of skilled witness not required, 361.
various matters covered, 362.
How actual knowledge may be acquired, 363.
judge may decline to know fact, 364.
may require aid of parties, 365.
examination by judge, 366.
function of the jury, 367.
books not evidence, 368.
standard treatises, 369.
testimony of skilled witnesses, 370.
How far knowledge is binding, 371.
matter of fact, 372.
matter of law, 373.
Cognizance as affected by action of the parties; waiver, 374.
345. Common Knowledge. 1 Common knowledge is general knowledge. It
is the knowledge that every one has. The subject, as has been intimated, has
no special relation to the law of evidence. 2 A trial at law takes the world as
1. Chamberlayne, Evidence, 691, 692. need not be proved." South & N. Ala. R. R.
2. " All men know them and therefore they Co. v. Wood, 74 Ala. 449 (1883).
184
185 ADMINISTRATIVE ADVANTAGES. 346, 347
a whole precisely as it finds it. With only a small portion of its happenings
does the law of evidence purport to deal. These it calls the res gestce.* Only
by assuming the reality and correctness of common knowledge can the settle-
ment of what the res yestce are and what they mean in terms either of fact or
law, possibly be reached within any reasonable limits of time. Indeed, the
requirement of substantive law, that reason must be employed by all branches
of the tribunal exercising administrative or judicial functions, 4 is in reality in
itself equivalent to and involves a permission and insistence, that the common
knowledge of the community should be used equally both by judge and jury.
346. [Common Knowledge] ; Administrative Advantages. 5 Were the foren-
isc use of common knowledge not necessary, it should be adopted and given force
and extension by reason of the marked advantages which it places within the
reach of the administrative powers of a presiding judge. Few of the adminis-
trative duties of such a magistrate are more impressive, especially for the expe-
diting of trials, than the necessity of seeing that any case before him keeps
constantly, as it were, turning upon its hinge. That is, attention should be
focused at all times on proof of the constituent facts or set of such facts as to
which the parties are in dispute. The jury should at no time be allowed to
digress to proof of facts which all persons know to be true, or as to which the
parties do not care to enter into a contest. As a method of expediting trials 6
and sustaining meritorious causes in an appellate court 7 the advantages of
steadily extending the forensic use of common knowledge are obvious. The
province of the jury, orderly administration and preservation of the rights of
the parties alike require that the judge should be the mouthpiece of the mixed
tribunal. Facts which the judge rightly regards as commonly known go to the
jury as established, without further proof, and the judge may charge the jury
to that effect. 8
347. What Knowledge Is Common. 9 The test of what knowledge is com-
mon is not furnished by any individual judge or any particular jury. Neither
of these judicial tribunals may ever have heard of the fact claimed to be " com-
monly known." Their ascertainment may require a long course of laborious
investigation. Common knowledge covers such facts of notoriety and general
3. Neville v. Kenney, 125 Ala. 140, 28 So 4. Supra, 31, 6 supra. 170 et seff.
452, 454 (1899). ''In seeking to ascertain 5. 1 Chamberlayne, Evidence, 693, 694.
the unknown from the known, a judicial tri- 6. Supra. 303 et sef/.
bunal is called on to use, apply, reflect upon, 7. Campbell v. Wood, 116 Mo. 196, 22 S. W.
and compare a great body of facts and 796 (1S93): Hunter v. New York, etc., R.
ideas of which it is already in possession, and Co., 116 X. Y. 615, 23 X. E. 9, 6 L. R. A.
of which no particle of 'evidence.' strictly 246 (1889).
so called, is ever formally presented in court. 8. People v. Mayes, 113 Cal. 618. 45 Pac.
And then, in addition, it has to be put in pos- 860 (1896) ; State v. Laffer. 38 Iowa 422
session of new material. It is this necessity, (1874).
that of furnishing new matter, which gives 9. 1 Chamberlayne, Evidence, 695.
occasion for rules of evidence." Thayer, Pre-
lim. Treat., 270.
348-351 KNOWLEDGE; COMMON. 186
acceptance as the ideal judge and jury should know ; the knowledge each
would have if he were a perfect representative of the community. The tri-
bunal, both court and jury, 10 will assume such facts to be true, without evi-
dence, 11 unless and until the judge demands that proof be furnished as to them.
348. [What Knowledge Is Common] ; Knowledge as Affected by Jurisdic-
tion. 12 Courts of general jurisdiction do not treat as matters of common
knowledge facts of merely local notoriety. Within limits not well defined, and
following, in part, the analogy of the court's knowledge of law, it is, as a rule,
rather the community for which than the community in which the judge is sit-
ting which determines the range of the facts which he will treat as common
knowledge.
340. [What Knowledge Is Common] ; Restricted Communities. 13 On the
contrary, facts may be regarded as commonly known even by a judge of gen-
eral jurisdiction ; provided they are so known and understood in a limited
community with which the judge is specially familiar and, for which, in a
real sense, he may be regarded as sitting. 14
350. [What Knowledge Is Common] ; Potential Knowledge. 15 The average
community, in addition to facts directly known, has a certain knowledge as to
the reach of the knowable, especially along scientific, historical or technical
lines, and knows where reliable information concerning them is stored. As to
these facts, about which no dispute exists, which are definitely settled, in a
particular way, the easy and sensible thing for a court to do is what any intel-
ligent person would do in his private affairs ; -*- " look it up" in an encyclo-
paedia,' atlas, scientific treatise or other work of standard authority. The
knowledge so acquired is deemed common knowledge.
351. General Notoriety; Classes of Facts so Established; Res Gestae. 16 As
elsewhere stated 17 use may be made of common knowledge in the establish-
ment of facts which are outside the necessity for strict proof. Where the fact
in question is one of the res gestce, 18 or a probative one necessary to proof of
10. Com. v. Peokham, 2 Gray (Mass.) 514 is not necessary to prove to a judge facts of
(1854) (gin intoxicating) ; Murdock v. Sum- a technical nature notorious in the legal pro-
ner, 22 Pick. (Mass.) 156 (1830); Spengler fession. In the same way courts dealing
v. Williams, 67 Miss. 1, 6 So. 61311880) (at- 'ustomarily with special subjects, as mari-
tractiveness to children of loosely piled lum- time or patent cases, regard as generally
ber). known facts commonly agreed upon among
11. State v. Main, 69 Com. 123, 37 Alt. 80, persons experienced in the particular branch
bl Am. St. Rep. 30, 36 L. R. A. 623 (1807) : in which the presiding judge is himself ex-
State v. Downs, 148 Ind. 324, 47 N. 'E. 670 pert. In this connection, these persons con-
(1897); King v. Gallun. 109 U. S. 99, 3 S. stitute the judge's "community."
Ct. 85, 27 L. ed. 870 (1883). 15. 1 niamberlayne. Evidence, 608.
12. 1 Chamberlayne, Evidence, 606. 16. 1 Chamberlnyne, Evidence, 700.
13. 1 Chamberlayne, Evidence, 607. 17. Supra. 346.
14. Thus, the legal profession is, to a cer- 18. Supra, 31. Aloore v. State, 126 Ga.
tain extent, the community of all judges. It
187
WHAT FACTS COVERED.
352, 353
the res gestce, 19 a fortiori where it is a constituent fact, either party is entitled
to insist within the limits prescribed by reason, that proof shall be furnished as
to its existence. It is not, therefore, established by the use of common knowl-
edge.
352. What Facts Are Covered by the Rule. 20 " Courts will not pretend to
be more ignorant than the rest of mankind." 21 Speaking broadly, the entire
range of human knowledge commonly accepted as true in the community for
which the court sits is regarded by it as generally known and its correctness is
assumed in dealing with the res gestce which are proved to the tribunal. 22 An
attempt to classify human knowledge in this connection must necessarily be in
a sense arbitrary. It falls naturally, however, into certain broad divisions,
distinct as a whole, though often indistinct in outline of boundary from cognate
classes. Such are facts relating to (1) nature; (2) science; (3) geography;
(4) human experience; (5) social life; (6) history; (7) business.
353. [What Facts Are Covered by the Rule] ; Nature. 23 Notorious facts
regarding the order of nature need not be proved. The natural order of events,
so far as invariable, 24 and obvious to common apprehension are commonly
known. 25 Of this nature is the succession of the seasons. 26
414, 55 S. E. 327 (1906) (former county
prohibited sale of liquor).
Maine. Chase v. Maine Cent. R. Co., 77
Me. 62, 52 Am. Rep. 744 (1885); Huntress
v. Boston, etc., R. Co., 66 X. h. 185, 34 Atl.
154, 49 Am. St. Rep. 600 (1890).
New York. Reynolds v. New York Cent.,
etc., R. Co., 58 X. Y. 248 (1874) ; Minnesota
v. Barber, 136 U. S. 313 (1890). On a crim-
inal proceeding for receiving stolen cotton,
the court will not dispense with proof that
cotton is a thing of value. Wright v. State,
1 Ga. App. 158, 57 S. E. 1050 (1907). "A
matter which could legitimately be the sub-
ject of inquiry in a court could not well be
said to be so well established and to have
acquired such notoriety as to come within
the judicial knowledge of the court." Chi-
cago, etc., R. R. v. Champion ( Ind. 1892),
32 X. E. 874. But see also Com. v. Peckham,
2 Gray (Mass) 514 (1854) (gin) (intoxi-
cating quality of certain liquor).
19. Supra, 34; Tunnison v. Field, 21 111.
108 (1859): Shiverick v. Gunning Co., 58
Xeb. 29, 78 X. \V. 460 (1899). "This fact
ought to have been proved, and not been thus
assumed by the court as a historical fact, of
which the court could take judicial notice."
Simmons v. Trumbo, 9 YV. Va. 358 (1876).
20. 1 Chamber layne, Evidence, 702.
21. Fisher v. Jansen, 30 111. App. 91
(1888).
22. Indiana. Jamieson v. Indiana Xatural
Gas, etc., Co., 128 Ind. 555, 28 X. E. 76, 12
L. R. A. 652 (1891).
Massachusetts. Com. v. Pear, 183 Maas.
242, 66 X. E. 719 (1903).
Michigan. Gilbert v. Flint, etc., R. Co.,
51 Mich. 488, 16 X. W. 868, 47 Am. Rep. 592
(1883) ; Howard v. Moot, 64 N. Y. 262 [af-
firming 2 Hun 475, 5 Thomps. & C. 89]
(1876).
23. 1 Chamberlayne, Evidence, 703-732.
24. Seufferle v. MacFarland, 28 App. Caa.
(D. C.) 94 (1906) ; Rex v. Luffe, 8 East 193,
9 Rev. Rep. 406 (1807). "The natural laws
of which courts take judicial notice are such
as are of uniform occurrence and invariable
in their action." Chicago, etc., R. R. v.
Champion (Ind. 1892), 32 X. E. 874 (mo-
tion of a freight car under given conditions).
The effect of placing obstructions in
streams, so far as uniform, will be commonly
known. Tewksbury v. Schulenberg, 41 Wia.
584 (1877) (dams).
25. Lake Shore, etc., R. Co. v. Miller, 25
Mich. 274. 292 (1872) ; Burwell v. Brodie, 134
X. C. 540, 47 S. E. 47 (1904) (planting
time) .
26. Tomlinson v. Greenfield, 31 Ark. 557
KNOWLEDGE; COMMON.
188
In other words, the physical world, the operation of the established laws of
nature, 27 including the application, in a familiar form, of combustion, 28
force, 29 gravitation,'' 50 momentum, 31 are not proper subjects of special knowl-
edge ; or, as is usually said, to be proved by expert testimony.
Regularly recurring and approximately uniform succession of weather con-
ditions, as heavy rains at a particular season of the year, 32 may be a subject of
common knowledge. But mere maxims of personal experience as that a
foggy night is followed by a foggy morning 33 must be established by proof.
The operation of natural laws, fairly invariable in their action, may, as in
case of the action of water in running streams, under varied common condi-
tions, 34 be facts of notoriety.
This rule includes the divisions of time into hours, minutes, 35 etc., the char-
acteristic properties of matter whether solid 3ti or liquid, 37 including intoxicat-
ing liquors, 38 distilled 39 or fermented, 40 or malt 41 as beer, 42 lager beer 43 and
medicines 44 or wines, 45 and so also of gaseous substances. 4 ' 5
(1876) ; Ross v. Boswell, 60 Ind. 235 (1877).
See also Barber Asphalt Pav. Co. v. City of
Wabash ( [nd. App. 1909), 86 N. E. 1034;
First Nat. Bank v. Rogers (Okla. 1909), 103
Pac. 582 (succession of seasons).
Agricultural seasons, not being fixed by
dates, cannot be judicially known with pre-
cision. Gove v. Downer, 59 Vt. 139, 7 Atl.
463 ( 1886 ) (pasture season ) .
27. Cooper v. Mills County, 69 Iowa 350,
28 X. W. 633 (1886) (action of currents).
Judicial notice must be taken of the primary
physical laws. Rome Ry. & Light Co. v. Keel,
3 Ga. App. 769, 60 S. E. 468 (1908).
28. Boothby v. Lacasse, 94 Me. 392, 47 Atl.
916 (1900) (fire) ; Welch v. Franklin Ins. Co.,
23 W. Va. 288 (1883).
29. Golson v. State, 124 Ala. 8. 26 So.
975 (1899) (bullet); Richardson -v. Eureka,
96 Cal. 443, 31 Pac. 458 (1892) settling of
building) ; Weane v. Keokuk, etc., R. Co.,
45 Iowa 246 (1876); Passmore v. Passmore,
60 Mich. 463, 27 N. W. 601 (1886).
30. Paducah St. R. Co. v. Graham, 15 Ky.
L. Rep. 748 (1894) (fall from car).
31. Chicago, etc., R. Co. v. Lewandowski,
190 111. 301, 60 N. E. 497 (1901) (train of
cars).
32. Elser v. Village of Gross Point, 223 111.
230, 79 N. E. 27 (1906).
33. Texas & X. 0. R. Co. v. Langham (Tex.
Civ. App. 1906), 95 S. W. 686.
34. Morton v. Oregon Short Line Ry. Co.,
48 Or 444, 87 Pac. 151, 7 L. R. A. (N. S.)
344 (1906) (freshet). It need not be proved
that when the specific gravity of a log be-
comes greater than that of water, it sinks
to the bottom; or that if the stream has any
considerable current, the log is apt to become
embedded in the bottom. Whitman v. Muske-
gon Log Lifting & Operating Co., 152 Mich.
645, 116 X. W. 614, 15 Detroit Leg. X. 383
(1908).
35. Williamson v. Brandenberg, 6 Ind. App.
97, 32 X. E. 1022 (1892); Mclntosh v. Lee,
57 Iowa 356, 10 X. W. 895 (1881) ; Bar Har-
bor First Xat. Bank v. Kingsley, 84 Me. Ill,
24 Atl. 794 (1891); Hedderich v. State, 101
Ind. 564, 1 X. E. 47, 51 Am. Rep. 768 (1884).
Judicial cognizance is not taken of the
hours of the day in England. Collier v.
Xokes, 2 C. & K. 1012, 5 Exch. 275, 61 E. C.
L. 1012 (1849).
36. Ware v. Chew, 43 X. J. Eq. 493, 11
Atl. 746 (1887) (brick wall); Worden's Ap-
peal, 71 Conn. 531, 42 Atl. 659, 71 Am. St.
Rep. 219 (1899) (asphalt); Xewlin v. St.
Louis & S. F. R. Co., 222 Mo. 375, 121 S. W.
125 (1909) (rotting of wood); Willis v.
Lance, 28 Or. 371, 43 Pac. 483, 487 (1896)
(deflect currents of air).
37. Wood v. Xorth Western Ins. Co., 46
X. Y. 421 (1871).
38. Blatz v. Rohrbach, 116 X. Y. 450, 22
X. E. 1049 (1889); Johnston v. State, 23
Ohio St. 556 (1873). To the contrary, see
State v. Biddle, 54 X. H. 379 (1874). See
Garst v. State, 68 Ind. 101 ( 1879) : Shaw v.
State, 56 Ind. 188 (1877) ; Haines v. Hanra-
han, 105 Mass. 480 (1870). The courts will
189
FACTS COVKKED.
354
354. [What Facts Are Covered by the Rule] ; Science. 47 The rule also in-
cludes matters of scieuce 48 like mathematics, 49 standards of measure, 50 value 51
aud weight, 52 the facts of the almanac 53 showing the movements , of the heav-
take judicial notice of the fact that spiritu-
ous and vinous liquors such as whisky,
brandy, wine, rum and gin, as well as malt
liquors like beer and ale, are intoxicating, but
the court cannot take notice that a new
drink called "Malt Mead ' is intoxicating
when it has not become so well known as to
have a reputation in the community. Gour-
ley v. Commonwealth, 140 Ky. 221, 131 8. \V.
34, 48 L. R. A. (X. S.) 315 (1910).
39. Hodge v. State, 116 Ga. 852, 43 S. E.
255 (1902); Schlicht v. State, 56 Ind. 173
(1877); Com. v. Morgan, 149 Mass, 314, 21
N. E. 369 (1889).
40. State v. McLalTerty, 47 Kan. 140, 27
Pac. 843 ( 1891 ) ; State v. Schaefer, 44 Kan.
90, 24 Pac. 92 (1890) ; State v. Crawley, 75
Miss. 919, 23 So. 625 (1898); Eureka Vine-
gar Co. v. Gazette Printing Co., 35 Fed. 570
(1888).
41 Wiles v. State, 33 Ind 206 (1870). See
also State v. Gill, 89 Minn. 502, 95 N. W.
449 (1003).
Malt liquor is commonly known to be a
general term for an alcoholic beverage pro-
duced merely by the fermentation of malt as
opposed to those obtained by the distillation
of malt or mash. Marks v State (Ala.
1909), 48 So. 864 \citing Allred v. State, 89
Ala. 112, 8 So 56 (1889): Tinker's Case, 90
Ala. 647, 8 So. 814 i 1889)].
42. \ew York. Blatz v. Rohrbach, 116
N. Y. 450, 22 X. E. 1049 (1889).
Kkode Island. State v. Beswick, 13 R. I.
211, 220 (1880).
43. State v. Morehead, 22 R. I. 272, 47 Atl.
545 (1900); State v. Rush, 13 R. I. 198
(1881). State v. Kibling, 63 Vt. 636. 22
Atl. 613 (1891). But see Tinker v State, 90
Ala 647 (18901; Rau v. People. 63 X. Y.
277 (1875). See also Smith v State. 113
Ga. 758. 39 S. E. 249 (1901).
Whether bitters, tonics or other compounds
are intoxicating is a question of evidence.
State v. Gregory, 110 Iowa 624. 82 X. W. 335
(1900).
44. Intoxicating Liquor Cases. 25 Kan. 751,
37 Am. Rep 284 (1S31); Mitchell v. C om ..
106 Ky. 602, 51 S. W. 17. 21 Ky. L. Rep 222
(1899) (Jamaica ginger): State v. Muncey.
28 W. Va. 494 (1886) (essence of cinnamon).
See also Robers v. State, 4 Ga. App. 207, 60 S.
E. 1082 (1908) ; Mason v. State, 1 Ga. App.
534, 58 S. E. 139 (1907).
45. Iowa. State v. Curley, 33 Iowa 359
(1871).
\orth Carolina. State v. Packer, 80 N. C.
439 (1879) (port).
Pennsylvania. Hatfield v. Com., 120 Pa.
St. 395, 14 Atl. 151 (1888).
Vermont. Starace v. Rossi, 69 Vt. 303, 37
Atl. 1109 (1897) (Italian sour wine).
Home-made blackberry wine is not known,
judicially, to be intoxicating. Loid v. State,
104 Ga. 726, 30 S. E. 949 ( 1898).
46. Jamieson v. Indiana Xatural Gas, etc.,
Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A.
652 (1891). Judicial notice will be taken
that gas, unlike oil, cannot be brought to the
surface and stored to await a market, but
must remain in the ground, and, unless al-
lowed to waste away, taken out only when
producer can find a customer. Eastern Oil
Co. v. Coulehan, 65 \V. Va. 531, ti4 S. E. 836
(1909). See also Indiana, etc., Gas Co. v.
State, 158 Ind. 516, 63 X. E. 220, 222 (1901).
That gas pipes always leak is not a subject of
judicial cognizance. Indiana, etc., Co. v.
Jones, 14 Ind. App. 55, 52 X. E. 487 (1895).
47. 1 Chamberlayne, Evidence, 733-748.
48. Luke v. Calhoun County. 52 Ala. 115
(1875); Poor v. Watson, 92 Mo. App. 89
(1901) ; Cox v. Seyenite Granite Co., 39 Mo.
App. 424 (1890) (gravitation).
49. Falls v. U. S. Saving, etc., Co., fl7 Ala.
417, 13 So. 25, 24 L. R A. 174 (18921 -. Scan-
Ian v. San Francisco Ry. Co. (Cal. 1898), 55
Pac. 694. ,
50. Reid v. McWhinnie. 27 U. C. O. B. 289
(1868) (a pint is less than five gallons). No
proof need be offered that a ten-cent glass of
whiskey contains less than three gallons
State v. Blands, 101 Mo. App. 61 S. 74 S. W.
3 (1903) : Tison v. Smith. 8 Tex. 147 (1852).
51. Grant v. State. 89 Ga. 393. 15 S. E.
488 (1S92): McCarty v. State. 127 Tnd. 223,
26 X. E. 665 (1890) : Jones v. State, 39 Tex.
Cr. 387, 46 S. W. 250 (1898).
52. Mays v. Jennings. 4 Humph. (Tenn.l
102 (1843) : Hockin v. Cooke, 4 T. R. 314
(1791) : Reed v. McWhinnie, 27 U. C. Q. B.
289 (1868). See also Putnam v. White, 76
355
KNOWLEDGE ;
190
enly bodies, 54 photography, 55 statistics as the census DC and mortality tables 57
or trade 58 tables or facts of public health. 59
355. [What Facts Are Covered by the Rule] ; Facts of Geography . 6U The
same considerations apply to facts of geography 01 as the boundaries of a
country <j2 or state (!3 and other political divisions, 04 what are the commercial
1884) ; Tison v. Smith, 8 Tex. 147
Me. 551
(1852).
53. Dawkins v. Smithwick, 4 Fla. 158
(1851); People v. Chee Kee, 61 Cal. 404
(1882) ; Wilson v. Van Leer, 127 Pa. St. 371,
379, 17 Atl. 1097, 14 Am. St. Rep. 854 (1889).
54. People v. Mayes. 113 Cal. 618, 45 Pac.
860 (1896); Case v Perew, 46 Hun 57
(1887) ; Cincinnati, etc., R. Co. v. Worthing-
ton, 30 Ind. App. 663, 65 X. E. 557. 66 N. E.
478 (1D02) (3:20 A.M., October 12th, not
daylight). It will be known that in the lati-
tude of Illinois 5 o'clock in the afternoon of
July 23d is about two hours before sunset.
Falkeneau Const. Co. v. Ginley, 131 111. App.
399 (1907).
55. Luke v. Calhoun County, 52 Ala. 115
(1875) ; Cowley v People, 83 N. Y. 464, 38
Am. Rep. 464 ( 1881 ) ; Udderzook v. Com., 76
Pa. St. 340 (1874). The court takes judicial
notice of the fact that X-ray machines some-
times cause serious burns. State v. Lester,
127 Minn. 282, 149 N. W. 297, L. R, A. 1915
D201 (1014).
56. Indiana. Whit ley County v. Garty,
161 Ind. 464, 68 X. E. 1012 (1003); Hunt-
ington v. Cast, 149 Ind. 255, 48 X. E. 1025
( 1 808 ) ; Stratton v. Oregon City, 35 Or. 400,
60 Pac. 905 (1000).
57. Joliet v. Blower, 155 111. 414, 40 X. E.
619 ( 1S05) ; People v. Life Ins. Co., 78 X. Y.
12S (1870) (vital statistics). See note,
Bender eel., 165 X. Y. 171: Campbell v. York
172 Pa. 205, 33 Atl. 879 (1806) : Crouse v. R.
Co., 102 Wis. 106, 78 X. W. 446 (1809).
58. Western Assur. Co. v. Mohlmann Co., 28
C. C. A. 157, 83 Fed. 811 (1897) (engineer-
ing tables). See infra, 859c et seq. Gar-
wood v. R. Co., 45 Hun 120 (1887) (mill-
wright's tables) ; Hatcher v. Dunn (Iowa
1896), 66 S. W. 005 (thermometer used in
gauging oils) ; Cherry Point Fish Co. v. Xel-
son, 25 Wash, 558, 66 Pac. 55 (1001) (tide
tables for Puget Sound) ; Gallagher v. Ry.
Co., 67 Cal. 16, 6 t'ac. 860 (1885).
59. The court will take judicial notice of
the fact that the sweepings of the streets
contain matter injurious to the public health.
Savannah v. Jordan, 142 Ga. 409, 83 S. E. 109,
L. R. A. 101.5 C741 (1914). The court may
take judicial notice of the fact that hogs when
kept in narrow limits are unclean and dan-
gerous to health when kept in a city in the
ordinary way. Ex Parte Botts, Tex. Crim.
Rep, 154 S. W. 221, 44 L. R. A. (X. S.) 629
(1913). The court cannot, however, refuse
to enjoin the operation of a gas holder as a
nuisance on the ground that it knows that the
escape of gas from it is a difficulty which is
temporary and can be remedied, as the court
should depend on evidence on this point. Ro-
mano v. Birmingham Railway, Light &
Power Co., 182 Ala. 335, 62 So. 677, 46 L.
R. A. (X. S.) 642 (1913).
60. 1 Chamberlayne, Evidence, 749-752
61. Trenier v. Stewart, 55 Ala. 458 ( 1876) ;
Bittle v. Stuart, 34 Ark. 224 (1879); Wil-
liams v. State, 64 Ind. 553, 31 Am. Rep. 135
(1878) ; Bell v. Barnet, 2 J. J. Marsh (Ky.),
516 (1829) ; U. S. v. La Vengeance, 3 Ball.
(U. S.) 297, 1 L. ed 610 (1706) ; Peyroux v.
Howard, 7 Pet. (I". S.) 324, 8 L. 'ed. 700
(1833).
62. Cooke v. Wilson, 1 C. B. (X. S.) 153,
163 (1856) (Colony of Victoria not in Eng-
land). See also Daly v. Old (L'tah 1909), 99
Pac. 460 (extent of territory named in con-
tract). '' It is a matter of which this court
will take judicial notice, that, by law, the
country is divided into collection districts for
internal revenue purposes, and in some states
there are several of these districts with defined
geographical boundaries." U. S. v. Jackson,
104 U. S. 41 (1881).
63. State v. Dunwell, 3 R. I. 127 (1855);
Harrold v. Arrington. 64 Tex. 233 (1885);
Thorson v. Peterson, Fed. 517, 10 Biss. 530
(1881); King v. American Transp. Co., 14
Fed. Cas. Xo, 7.787, 1 Flipp. 1 (1850) ; Top-
pan v. Cleveland, etc., R. Co., 24 Fed. Cas.
Xo. 14,000, 1 Flipp. 74 (1862). Race Island
is in the jurisdiction of Illinois. Gilbert v.
Moline Water Power & Mfg. Co., 10 Iowa 319
(1865) -. Harvey v. Territory, 11 Okl. 156, 65
Pac. 837 (1901| : Hoytt v. Russell, 117 U. S.
401 (1885).
64. Linck v. Litchfield, 141 111. 469, 31 N.
E. 123 (1892).
191
WHAT FACTS COVERED.
355
centers 65 and natural features like rivers, 66 railroads, 67 distances 68 and com-
mon facts about counties, 69 cities, 70 including their boundaries, 71 streets and
blocks, 72 even in case of foreign cities, 73 and so of towns 74 and townships 75
in the jurisdiction or villages. 76
70. Bally v. Birkhofer, 123 Iowa 59, 98
N. W. 594 (1904) ; Goodwin v. Appleton, 22
Me. 453 (1843) ; French v. Barre, 58 Vt. 567,
5 Atl. 568 (1886) ; Woodward v. Chicago, etc.,
R. Co., 21 Wis. 309 (1867).
71. De Baker v. Southern Cal. R. Co., 106
Cal. 257, 39 Pac. 610, 46 Am. St. Rep. 237
(1895) (river often mentioned in statutes) ;
In re Independence Ave Boulevard, 128 Mo.
272, 30 S. W. 733 ( 1895) : Atchison, T. & S. F.
R. Co. v. Paxton, 75 Kan. 197. 88 Pac. 1082
(1907); Houlton v. Chicago, etc., R. Co., 86
Wis. 59, 56 N. W. 336 (1893).
Precise boundaries cannot be judicially
known unless established by statute. Bos-
ton v. State, 5 Tex. App. 383, 32 Am. Rep.
575 (1879) ; Brune v. Thompson, 2 Q. B. 789
( 1842 ) ( tower of London not known to be
within a certain city line in London).
72. Certain considerations are apt to affect
the judge's action in any particular instance,
i 1 ) Where a plan has been recognized by
statute the facts set forth in it will be more
readily known [Whiting v. Quackenbush, 54
Cal. 306 (1880) : Sver v. Lyons, 170 111. 395,
48 N. E. 926 (1897); Armstrong v. Cum-
mings, 20 Hun I \. Y.) 313 (1880)] than
when established by dedication or a munici-
pal by-law. [Diggins v. Hartshorne, 108
Cal. 154, 41 Pac. 283 (1895).] (2) Where
judicial knowledge is taken of streets, etc., it
is rather of their general direction [Brady
v. Page, 59 Cal. 52 (1881) ; Canavan v. Stuy-
vesant, 7 Misc. (N. Y.) 113, 27 N. Y. Suppl.
413 (1894): Skelly v. New York El. R. Co.,
7 Misc. 88, 27 N. Y. Suppl. 304 (1894)]. the
existence of the arrangement itself [McMas-
ter v. Morse, 18 Utah 21, 55 Pac. 70 (1898)]
and the interrelations in position of the
streets, etc., to each other [Diggins v. Harts-
horne, 108 Cal. 154, 41 Pac. 283 (1895);
Brady v. Page, 59 Cal. 52 (1881); Gardner
v. Eberhart, 82 111. 316 (1876),] than an
attempt actually to know of the true posi-
tion of these ways on the surface of the
ground [Diggins v. Hartshorne, 108 Cal. 154,
41 Pac. 2S.3 (1805): Shepard v. Shepard, 36
Mich. 173 (1877)] or of their definite rela-
tions to established monuments [Pennsylvania
Co. v. Frana, 13 111. App. 91 (1883) ( inter -
Maine. Harvey v. Wayne, 72 Me. 430
(1881).
United States. U. S. v. Jackson, 104 U. S.
41. 26 L. ed. 651 (1881).
65. Harmon v. Chicago. 110 111. 400, 51
Am. Hep. 698 (1884) (Chicago river); State
v. Wabash Paper Co., 21 Ind. App. 167, 48 X.
E. 653, 51 NT. E. 949 (1898) i Wabash and
Miami rivers) See also State v. Jones, 11
Ohio Cir. Dec. 496 (1900). Ex parte David
son, 57 Fed 883. 887 (1893) (laying out as
the site of a city ) .
66. Walker v. Allen, 72 Ala. 456 (1882)
(all rivers in a particular county are of fresh
water). Supperle v. McFarland, 28 App. Cas.
(D. C. ) 94 (1906) (Potomac); State v.
Southern Ry. Co. ( N. C. 1906), 54 S. E. 294.
No part of the Tallapoosa river is in the city
of Montgomery. City Council of Montgomery
v. Montgomery, etc., Plankroad, 31 Ala. 76
(1857). See also Thosvold v. Bygland (Neb.
1908), 116 N. W. 971. It is commonly known
that the Arkansas and Poteau rivers bound
Ft. Smith on the west. McKenzie v. New-
ton, 89 Ark. 564, 117 S. W. 553 (1909). The
court knows that the Snohomish River flows
into Puget Sound. Vail v. McGuire (Wash.
1908), 96 Pac. 1042.
67. Hobbs v. Memphis, etc., R. Co.. 9 Heisk.
(Tenn.) 873 ( 1872) ; Texas & N. 0. Ry. Co. v.
Walker (Tex. Civ. App. 1906), 95 S. W. 743:
Miller v. Texas, etc., R. Co., 83 Tex. 518, 18
S. W. Oo4 (1892). See also Patterson v. Mis-
souri Pac. Ry Co. (Kan. 1908), 94 Pac. 138.
That the Missouri Pacific is a railroad cor-
poration engaged in interstate commerce may
well be a fact of judicial knowledge. State v.
Missouri Pac. Ry. Co., 212 Mo. 658, 111 S W.
500 ( 1908).
68. Bruson v. Clark, 151 111. 495, 38 N. E.
252 (1894); Williams v. Brown, 65 N. Y.
Suppl. 1049, 53 App. Div. 486 (1900) : Pearce
v. Langfit, 101 Pa. St. 507, 47 Am. Rep. 737
(1882).
69. Connecticut. State T. Powers, 25 Conn.
48 (1856).
Illinois. Gooding v. Morgan, 70 111. 275
(1873).
Massachusetts. Com. v. Desmond, 103
Mass. 445 (1869) (Suffolk county).
356, 357
KNOWLEDGE; COMMON.
192
356. [What Facts are Covered by the Rule] ; Facts of Human Experience. 77
The broad inductions of experience are '' assumed as truths in any process
of reasoning by the mass of sane minds." 7S A tribunal legally required to
render judgments according to reason, must know 79 such propositions ; and
counsel may properly use them as a basis of their argument to the jury.' 1 ' It
has even been said that the knowledge is not optional; M the use of sound
reason is mandatory at all times upon the tribunal.
357. [What Facts are Covered by the Rule] ; Standards of Reasonable Con-
duct.** The standards of conduct which experience has established in the
community are known to its eourts.' v; An act which this standard of experi-
Mexico) ; Phillips v. Lindley, 9S X Y Suppl.
423, 112 App. Div. 283 (1906).
74. State v. Simpoon, 91 Me. 83, 39 Atl.
287 (1897); Parker v. Burton. 172 Mo. 85.
72 S. W. 663 (1903); Winnipiseogee Lake
Co. v. Young, 40 X. H. 420, 429 (1860).
75. Kile v. Yellovvhead. 80 111. 208 (1875)
(coincide with sectional lines) : Wright v.
Phillips, 2 Greene (Iowa) 191 (1849): Dex
ter v. Cranston, 41 Mich. 448, 2 X W. 674
(1879). The exact position of boundary line
and facts dependent on that position
whether, for example, the particular town-
ship is or is not within a given county
must be proved. Backenstoe v. Wabash, etc.,
"R Co., 86 Mo. 492 I 1885 ) : Mayes v. St. Louis,
etc., R. Co., 71 Mo. App. 140 (1897). But
see City Nat. Bank v. (Joodloe-McClelland
Commission Co., 93 Mo. App. 123 (1902).
76. U. S. v. Beebe, 2 Dak. 292, 11 X. W.
505 (1880): Chamberlain v. Litchfield. 56
111. App. 652 (1894) ; Shaw v. Xew York, etc..
R. Co., 85 X. Y. Suppl. 91. 85 App. Div. 137
(1903) ; French v. Barre, 58 Vt. 567, 5 Atl.
568 (1886): Anderson v. Com., 100 Va. 860,
42 S. E. 865 (1902).
77. 1 Chamberlayne, Evidence. 753.
78. Lake Shore, etc., R. Co. v. Miller, 25
Mich. 274, 292 (1872).
79. Lake Shore, etc., R. Co. v. Miller, 25
Mich. 274, 292 MS72).
80. Philadelphia 15. Co. v. Lehman, 56 Md
209 i 1881) ; State v. Lingle, 128 Mo. 528, 31
S. \V. 20 (1895).
section of a street with a railroad location,
not noticed i ] , or even the actual distances
between the streets themselves. [West Chi-
cago St. H. Co. v. Vandehouten, 58 111. App.
318 (1895) (Chicago). J (3) Facts relating
to streets widely known, because (a) in a
great commercial metropolis [Poland v. Drey-
fous, 48 La. Ann. 83, 18 So. 906 (1896) (Xew
Orleans) ; In re City of Xew York, 96 N. Y.
Suppl. 554, 48 Misc. 602 (1905) (Xew York) ;
Oruber v. Xew York City R. Co., 53 Misc.
(X. Y.) 322, 103 X. Y. Suppl. 216 (1907)
(New York city) ; Canavan v. Stuyvesant, 7
Misc. 113, 27 X. Y 7 . Suppl 413 (1894) (Xew
York city)], ib) long established [State v.
Ruth, 14 Mo. App. 226 (1883) ; Breckinridge
v. American Cent. Ins. Co., 87 Mo. 62 (1885)
(less well-known streets, or their direction,
not noticed ) . See, however, Allen v. Schar-
ringhausen, 8 i.lo. App 229 (1880) (where
cognizance was taken of a street number)],
(c) located in the place where the court is
actually sitting [State v. Ruth. 14 Mo. App.
226 (1883)], will be known by the court as
notorious.
.4 Contrary View. Several jurisdictions
have peremptorily declined judicially to know
these ways [Sever v. Lyons, 170 III. 395, 4S
X. K. 826 (1897); Baily v. Birkhofer. 123
Iowa 59, 98 X. W. 5!4 i!904); Kitchie v.
Catlin, 86 Wis. 109. 56 X. W. 473 (1893)],
and. a fortiori, the house numbering on them
[Ritchie v. Catlin, 86 Wis. 109, 56 X. \V. 473
I 18! 13)].
Grades. The court may take judicial no-
tice of the fact that many sidewalks in the
state have a grade of more than thirteen per-
cent. Dougan v Seattle, 76 Wash. 621, 136
Pac. 1165, 51 L. R. A. (X. S.) 214 (1913).
73. Maese v. Hermann. 17 App. Cas. (D.
C.) 52 [affirmed in 183 V. S. 572, 22 S. Ct.
91, 46 L. ed. 33o J (1900) (Las Vegas in Xew
81. Whatever is matter of common knowl-
edge arid experience, courts are bound to rec-
ogni/.e (irirtith v. Denver Consol Tramwa'
Co., 14 Colo App. 504, 61 Par. 46 48 (1900).
32. 1 Chamberlayne, Evidence. 754.
83. Postal Tel Cable Co. v. Jones, 133 Ala.
217, 32 So. 500 (1901 i ; Lake Shore, etc., R.
Co. v. Miller, 25 Mich. 274, 292 (1872).
193
WHAT FACTS COVERED.
358
ence unhesitatingly stamps as unreasonable will be known to the court to be
so, 84 while conduct which the community's standard of prudence deems permis-
sible will be so regarded by the court. 85
358. [What Facts are Covered by the Rule}; Facts of Social Life. 86 No
proof need be olfered of facts which are well known incidents of the social life
of the community. Courts know the customary methods of doing business,
prevalent in the community. These will be regarded as notorious, 87 but not so
of local customs.** The courts know also what is customarily known by per-
sons of average intelligence concerning the tine arts, 89 gaming, 9 " language 91
and its abbreviations, 1 ' 2 and the meaning of words S)3 or phrases, 94 allusions to
well-known literature/' 1 "' and the state of the mechanic arts 9G and medicine. 97
84. Griffith v. Denver Consul. Tramway Co.,
14 Colo. App. 504, 61 Pac. 46, 48 (1900);
Upington v. Corrigan, 6!) Hun (X Y. ) 320, 23
X, V. Suppl. 4-11 (1893) (delay of twenty-
nine years in starting to build a church) ;
Texas, etc., R. Co. v. Cox, 145 I". S. 593, 12
fis. Ct. 905, 36 L. ed. 829 (1892). That elec-
tricity is a dangerous and treacherous agent,
similar to gunpowder or dynamite and is not
to he handled with a low degree of caution,
is a fact of common knowledge. De Kallands
v. Washtenaw Home Telephone Co., 153 Mich.
25, 110 X. \V. 564, 15 Detroit Leg. X T . 337
(1908).
85. Gilbert v. Flint, etc., R.- Co., 51 Mich.
488, 16 X. W. 868, 47 Am. Rep. 592 (1883)
(leaving a box freight car at a highway
crowing).
86. 1 Chamberlayne, Evidence, 755-782.
87. City Electric St. R. Co. v. First Xat.
Exch. Bank. 62 Ark. 33, 34 S. W 89, 54 Am.
St. Rep. 282, 31 L. R. A. 535 (1896) ; Pfeif-
fer v. Detroit Rd. of Education, 118 Mich. 560,
It X. W. 250, 42 L. R. A 536 (1898); Row-
land v. Miln, 2 Hilt. 150 (1858); Watt v.
Hooh. 25 Pa. St. 411 (1855); John O'Brien
Lumlier Co. v. Wilkinson ( Wis. 1904), 101
X. W. 1050; U. S. v . Arredondo, 6 Pet. 691,
8 L. ed. 547 ( 1.S32 ) .
88. Sanders v. Brown (Ala. 1905), 39 So.
732 (on ale of business to secure covenant
not to .compete); Schultx v. Ford Bros.
(Iowa 19(16), 109 X. W. 614.
89. Lumley v. Gye, 2 E. & B. 216, 267, 17
Jur. 827, 22 L. J. Q. B. 463, 1 Wkly. Rep.
432, 75 E. C. L. 216 (1S53) : Beck. etc.. Litho-
graphing Co. v. Evansville Brewing Co.. 25
Ind. App. 662, 58 N. E. 859 (1900) : Adams
Exprp-s Co. v. Hoeing, 9 Ky. L. Rep. 814
(1888).
90. State v. Burton, 25 Tex. 420 (I860);
Salomon v. State, 28 Ala. 83 (1856) ; Boul-
lemet v. State, 28 Ala. 83 (1856) ; Lohman v.
State, 81 Ind. 15 (1881j.
91. Power v. Bowdle, 3 X. D. 107, 54 N.
W 7 . 404, 44 Am. St. Rep. 511, 21 L. R. A. 328
(1893).
92. Sheffield Furnace Co. v. Hull Coal, etc.,
Co., 101 Ala. 446, 14 So. 672 (1892) ("F. O.
B."); Heaton v. Ainley, 108 Iowa 112, 78
Ni W. 798 (1899) ("acct.") : South Missouri
Land Co. v. Jeffries, 40 Mo. App. 360 (1890)
("Supt."). That ' 5x16," in speaking of
shingles, means 5 inches wide and 16 inches
long, is a matter of common knowledge. Bir-
mingham & A. R. Co. v. Maddox & Adams
(Ala. 1908), 46 So. 780. "0. X." signifies
" order notify." Ala. Ut. So. R. Co. v. Or-
gan Power Co. (Miss. 1908), 46 So. 254 (ab-
breviations) .
93. Sinnott v. Colombet, 107 Cal. 187, 40
Pac. 329, 28 L. R. A. 594 (1895); Com. v.
Pear, 183 Mass. 242, 66 N. E. 719 (1903)
("vaccination") ; Simpson t. Press Pub. Co.,
53 Misc. 228, 67 N. Y. Suppl. 401 (1900).
94. Lampton v. Haggard, 3 T. B. Mon.
(Ky.) 149 ( 1826) ; Hoare v. Silverlock, 12 Q.
B. 624, 12 Jur. 695, 17 L. J. Q. B. 306, 64
E. C. L. 624 (1848) ; Clarke v. Fitch, 41 Cal.
472 (1871); Edwards v. San Jose Printing,
etc., Soc., 99 Cal. 431. 34 Pac. 128. 37 Am.
St. Rep. 70 (1893): Greenfield First Xat.
Bank v. Coffin, 162 Mass. 180, 38 X. E. 444
(1894).
95. Forbes v. King. 1 Dowl. P. C. 672
( 1883) . The courts will take the same knowl-
edge as the community at large of matters of
literature. St. Hubert Guild v. Quinn, 118
X. Y. Suppl. 582. 64 Misc. Rep. 336 (1909).
96. Phillips v. Detroit, 111 U. S. 604, 4 S.
358
KNOWLEDGE: COMMON.
194
The court knows what the community as a whole knows as to animal 98 or
human " life, the moral. 1 mental 2 or physical 3 nature of human beings and
diseases, 4 or vegetable 5 life. The court also knows the well recognized fea-
tures of politics," religion 7 or the general amusements 8 of the people or their
clothing, 5 * food, 10 household conveniences, 11 the payment of taxes, 12 the use of
tobacco, 13 the value of property, 14 or general distribution of wealth. 15
Ct. 580, 28 L. ed. 532 (1883); Parsons v.
Seelye, 100 Fed. 452, 40 C. C. A. 484 (1900) ;
Heaton-Peninsular Button-Fastener Co. v.
Schlochtmeyer. 69 Fed. 592 (1895); Infra,
820, 902, 1988, ^404.
97. Com. v. Pear, 183 Mass. 242, 66 N. E.
719 (1903) (vaccination).
98. Fisk v. Chicago, etc., R. Co., 74 Iowa
424, 38 N. \V. 132 (1888); Gilbert v. Flint,
etc., R. Co., 51 Mich. 488, 16 N. W. 868, 47
Am. Rep. 592 (1883) ; Meyer v. Krauter, 56
X. .T. L. 696, 29 Atl. 426, 24 L. R. A. 575
(1894).
99. Ricks v. Broyles, 78 Ga. 610, 3 S. E.
772, 6 Am. St. 282 (1887).
1. Fonville v. State, 91 Ala. 39, 8 So. 688
(1890) ; People v. Lou Yeck, 123 Cal. 246, 55
Pac. 984 (1899); Gurley v. Butler, 83 Ind.
501 (drunkenness unfits administrator for
his trust) (1882).
2. Lake Shore, etc., R. Co. v. Miller, 25
Mich. 274, 292 (1872); Hunt v. Wing, 10
Heiske. (Tenn.) 139 (1872).
3. Hunter v. New York, etc., R. Co., 116
\. V. 615, 23 N. E. 9. 6 L. R. A. 246 i 1S89).
The court does not judicially know that the
employment of women more than ten hours in
one day is not injurious and not a proper sub-
ject of police regulation. People v. Elerding,
254 111. 579, 98 X. E. 982, 40 L. R. A. 893.
Where the question of a child's ability to be
of service is in issue and the court is doubt-
ful the jury should pass upon it and the
court should not take judicial notice of the
fact that a child three years old of vigorous
health is of no value for his services to his
parents. Many precocious children of very
tender years have shown great ability in vari-
ous ways. James v Central of Georgia R.,
138 OR." 415, 75 S. E. 431, 41 L. R. A. (X. S.)
75).) (1912).
4. Kiernan v. Metropolitan L. Ins. Co., 13
Misc. (X. Y.) 39. 34 X. Y. Suppl. 95 (189.'.)
(pneumonia). See also Lidwinofsky's Peti-
tion. 7 Pa. Dist. 188 (1898). See also State
v. Fox. <<> Md. 514, 29 Atl. 601, 47 Am. St.
424 (1894).
5. Meyers v. Menter, 63 Xeb. 427, 88 N. W.
662 (1902) ; Barr v. Cardiff (Tex. Civ. App.
1903), 75 S.'VV 341: Wetzler v. Kelly, 83
Ala. 440, 442, 3 So. 747 (1888); Person v.
V\ right, 35 Ark. 169 (1879); Garth v. Cald-
well, 72 Mo. 622 (1880); State v. Main, 69
Conn. 123, 37 Atl. 80, 61 Am. St. Rep. 30, 36
L. R. A. 623 (1897).
6. State v. Lindahl, 11 X. D. 320, 91 N. W.
950 (1902).
7. Smith v. Pedigo, 145 Ind. 361, 33 N. E.
777, 32 L. R. A. 838 (1896); State v. So.
Kingstown, 18 R. I. 258, 273, 27 Atl. 599, 22
L. R. A. 65 ( 1893 ) ( " Seventh-day baptists "
do not work on Saturday) : State v. District
Board, 76 Wis. 177, 44 X. W. 967, 7 L. R. A.
330 (1890).
8. State v. Maloney, 115 La. 498. 39 So.
539 (1905) ; Ex parte Berry, 147 Cal. 523, 82
Pac. 44 ( 1905) ; U. S. v. Strauss, Bros. & Co.,
69 C. C. A. 201, 136 Fed. 185 (1905) ; Sieberts
v. Spangler (Iowa 1908), 118 X. W. 292.
9. Wamser v. Browning, King, & Co., 95
X. Y. Suppl. 1051, 109 App. Div. 53 (1905).
10. People v. Meyer, 44 X. Y. App. Div. 1,
60 X. Y. Suppl. 415 (1899) ; People v. Hill-
man, 58 X. Y. App. Div. 571, 69 X. Y. Suppl.
66. 15 X. Y. Cr. 394 ( 1901) : Brown v. Piper,
9i U. S. 37 (1875) (ice cream freezer) : Pat-
terson v. Wenatchee Canning Co., 53 Wash.
155, 101 Pac. 721 (1909).
11. Roberts v. Bennett, 69 C. C. A. 533,
136 Fed. 193 (1905) : Moeckel v. C. A. Cross
& Co.. 190 Mass. 280, 76 X. E. 447 (1906).
The practice of lighting fires with coal oil is
commonly known. Waters- Pierce Oil Co. v.
Desplms, 212 I". S. 159, 29 S. ('t. "270 (1909) ;
P. Hoft'master Sons Co. v. Hodges, 154 Midi.
641. 118 X. W. 484, 15 Detroit Leg. X. 926
,,908).
12. State v. Mutty, 39 Wash. 624, 82 Pac.
118 (1905).
13. Austin v. State. 101 Tenn. 563, 48 S.
W. 305. 70 Am. St. Rep. 703, 50 L. R. A. 478
\affn-med in 179 U. S. 343, 21 S. Ct. 132. 45
L. ed 224] (1898): Kappes v. City of Chi-
cago, 119 111. App. 436 (1903). "Cigars are
195 WHAT FACTS COVERED. 359
359. [What Facts are Covered by the Rule]; Facts of History. 16 Facts of
history stand in much the same position, in regard to practical possibilities of
proof, as that of facts of science. 17 Certain matters of recent occurrence of a
local nature may at times be established by witnesses possessing first-hand
knowledge. Other facts may be regularly proven by persons of exceptional
skill and training from the use of original documents or other historical data.
In exercising his right to make proof of his case according to the practical pos-
sibilities of procuring evidence which it presents, 18 a party, to substantiate an
historical fact, must, in the average case, rely directly or indirectly, upon hear-
say ; either as presented by a witness who has examined treatises on the sub-
ject or by production of the treatise itself. The natural, and at times, the
necessary resort of one who would seek knowledge on the subject, is to printed
works on history. These being excluded as evidence of the truth of the state-
ments contained in them by the rule against hearsay, 19 the administrative expe-
dient is adopted of treating the matter as one of common knowledge and allow-
ing the use of the book to refresh the memory of the court on a point, in many
cases, of which it has never heard. The community in general has gained
knowledge of certain protruding historical facts in much the same way, to wit,
from standard treatises. The court, in like manner, in the absence of evidence
to the contrary, will assume the knowledge so gained as correct and proceed to
act judicially in accordance with it. More recondite facts, the court, ex neces-
sitate rei, will investigate for itself, by action of the judge, with or without the
assistance of the parties. The operation of this administrative expedience, sup-
plementing the common knowledge of judge and jury, may cover the entire
range of history, sacred or profane ; whether of the world, the nation, state,
county or of smaller municipal divisions, cities, towns, parishes, etc.
For example, notorious facts of the world history will be noticed, whether
ancient or contemporaneous, 20 but not minor facts. 21 The courts will notice
the important facts of the history of their own nation 22 as the development
manufactured articles familiar to every- 17. Supra, 698.
body." Com. v. Marzynski. 149 Mass. 68. 18. Supra, 334.
14. Rock Island & E. I. R. Co. v. Gordon, 19. Infra, 2700.
184 111. 456, 56 X. E. 810 (1!)00) ; Bradford 20. Banco de Sonora v. Bankers' Mut. Cas-
v. Cunard Co., 147 Mass. 55. 16 X. E. 719 ualty Co. (Iowa 1903), 95 X. W. 232 (basis
(1888) ; Head v. Hargrave, 105 U. S. 45, 49 of foreign law) ; Dowie v. Sutton, 227 111. 183,
(1881) (expert evidence as to land values). 81 X. E. 395 (1907) (Boer war); Underbill
Courts will recognize that a grossly inade- v. Hernandez, 168 U. S. 18 S. Ct. 83, 42 L. ed.
quate price is merely nominal. York v. Lev- 456 (1897) (Venezuela) ; Sears v. The Scotia,
erett (Ala. 1909) 48 So. 684. 14 Wall. < U. S.) 170, 20 L. ed. 822 (1871).
15. Central of Georgia R. Co. v. Wright, 21. Hebblethwaite v. Flint, 115 X. Y. App.
125 Ga. 589, 54 S. E. 64 (1906). What Div. 507. 101 X. Y. Suppl. 43 (1906); City
facts may not be judicially noticed, specific of Chicago v. Gage, 237 111. 328, 86 X. E. 633
instances. See note. Bender Ed.. 108 N. Y. ^908).
56. Of facts concerning the operation of rail- 22. U. S. v. Reynes, 9 How. ( U. S.) 127,
roads. See note, Bender Ed., 137 X. Y. 302. 147. 13 L. ed. 74 (1850). "The court will
16. 1 Chamberlayne, Evidence, 783-808. take judicial notice of the leading and con-
359
KNOWLEDGE; COMMON.
196
of commerce, 23 its action in foreign affairs, 24 its wars, 25 its habits and cus-
toms 2fi and the general course of affairs in important periods like the Civil
War. 27 The courts know also the history of their own state, 28 the history of
land titles, 2 " and industrial development 3 " such as the establishment of tele-
phones, 31 mining 32 and railroads 33 and the recent general 34 and political 35
history of the state, including that of the great national parties, 30 the results
of elections 3T and the religious history 38 of the state. Even county history, 39
trolling events in the history of the country
and of the official relations of the principal
actors therein to the government : and, in
elucidation thereof, also of less important
transactions of general and public interest
immediately connected therewith, when they
have passed into commonly received authen-
tic history." De Celis v. U. S., 13 Ct. of
Claims. 117 (1877); Daggett v. Colgan, 92
Cal. 53, 28 Pac. 51, 14 L. R. A. 474 ( 1891).
23. Wood v. Cooper, 2 Heisk, 441 (1871).
Compare, however, Laird v. Folwell, 10 Heisk.
92 (1872) ; Hart v. (State, 55 Ind. 509 (1877).
24. Xeely v. Henkel, 180 I. S. 109, 21
S. Ct. 302, 45 L. ed. 448 [affirming 103 Fed.
631] (1901); U. S. v. Reynes, 9 How. (U.
S.) 127, 13 L. ed., 73 (1850).
25. Maclane's Trial. 20 How. St. Tr. 797
(1797): R. De Berenger, 3 M. & S. 67, 69
(1814) ("so many statutes that speak of a
war with France"); La Rue v. Kansas
Mut. L. Ins. Co. (Kan. Sup. 1904), 75 Pac.
494 (1904).
26. Youngs v. Youngs, 130 111. 230, 22 X.
E. 806, 17 Am. St. Rep. 313. ti L. R. A. 548
(1889); Com. v. Whitney, 11 Cush. (Mass.)
477 (1853): Williamson 'v. Freer, L. R. 9 C.
P. 393, 43 L. J. C. P. Kil, 30 L. T. Rep.
N. S. 332, 22 Wkly. Rep. 878 (1874) ; Robin-
son v. Jones, L. R. 4 Ir. 391 (1879); State
v. Chingren, 105 Iowa 169, 74 X. W. 946
(18!8i: Marsh v. Colby, 39 Mich 620, 33
Am. Rep. 439 (1878) : Zapf v. State. 11 Ind.
App. 360. 39 X. E. 171 (1894); Von Mumm
v. Wittemann, 85 Fed. 966. 967 (1898);
The Conqueror. 166 t T . S. 110, 17 S. Ct.
510. 14 L. ed. 937 (1896) (before Xovember
1st).
27. Brooke v. Filer, 35 Ind. 402 (1871);
Woods v. Wilder, 43 X. Y. 164, 3 Am. Rep.
684 (1870).
28. Howard v. Moot. 64 X. Y. 262 [affirm-
ing 2 Hun 475] (1876): State v. Franklin
County Sav. Bank,, etc., Co., 74 Vt. 246, 52
Atl 1069 (1902).
26. City of Paterson v. East Jersey Water
Co. (Ch. 1908), 70 Atl. 472. Townsend v.
Trustees of Freeholders and Commonalty of
Town of Brookhaven, 89 X. Y. Suppl. 982, 97
App. Div. 316 (1904).
30. Funderburg v. Augusta & A. Ry. Co.,
81 S. C. 141, 61 S. E. 1075 (1908); Xew
York Cent. & H. R. R. Co v. Williams, 118
N. Y. Suppl. 785, 64 Misc. 15 (1909) ; Jack-
son Consol. Traction Co. v. Jackson Circuit
Judge, 155 Mich. 522, 119 X. W. 915, 15
Detroit Leg. X. 1081 (1909).
31. Wolfe v. Missouri Pacific Railway Co.,
97 Mo. 473, 11 S. W. 49, 3 L. R A. 539, 10
Am. St. Rep. 331 ( 1888) . t/uoted in Western
Union Telegraph Co. v. Ro\vell (Ala. 1907), 45
So. 73, 80.
32. State v. Jacksonville (Fla. 1904), 37
So. 652 (phosphate) ; State v. Indianapolis
(ias Co. (Ind. 1904), 71 N. E. 139; State v.
Barrett (Ind. 1909), 87 X. E. 7.
33. Knowlton v. Xew York, etc., R. Co., 72
Conn. 188, 44 Atl. 8 (1899); Hart v. Balti-
more, etc., R. Co., 6 W. Va 336 (1873);
Knowlton v. R. Co., 72 Conn. 188, 44 Atl. 8
(1899) ; Miller v. Texas, etc., R. Co., 83 Tex.
518, 18 S. W. 9.14 ( 1892) ; Chinn v. Chicago,
etc., R. Co., 100 Mo. App. 576, 75 S. W. 375
(1903) (live stock traffic shows yearly in-
crease) .
34. Brooke v. Filer, 35 Tnd. 402 (1871):
Hill v. Baker, 32 Iowa 302, 7 Am. Rep. 193
(1872): Douthitt v. Stinson, 63 Mo. 268
(1876): Jackson County v. Arnold, 135 Mo.
207, 36 S. W. 662 (1896) : Taylor v. Rennie,
35 Barb. (X. Y.) 272 (1861).
36. State v. Metcalf (S. D. 1904), 67 L. R.
A. 331. 100 X. W. 923.
37. In re Denny, 156 Ind. 104, 59 X. E.
359, 52 L. R. A. 722 ( 1901 ) ; State v. Stearns,
72 Minn. 200, 75 X. W. 210 (1898).
38. State v. District Board. 76 Wis. 177
(isno): Pfeiffer v. Board of Education. 118
Mich. 560. 77 X. W. 250. 42 L. R. A. 536
(1898) : State v. District Board, 76 Wis. 177
(1S90).
39. Hi.v v. Hix, 25 W. Va. 481 (1885).
197
WHAT FACTS COVERED.
360
officials,* population by census 41 and public institutions 42 unless of minor
character 43 need not be proved. The court may also know the commercial
growth of cities and towns 44 but not minor facts in connection with them 45
but may know their officials. 46
360. [What Facts are Covered by the Rule] ; Facts of Business. 47 Courts
regard as commonly known the facts relating to business matters generally
accepted as true in the community. " We cannot close our eyes," say the Su-
preme Court of the United States, " to the well-known course of business in
the country/' 48 This common course of business, 49 its instrumentalities, the
distinctions between them usually made in various branches, 50 and the changes
which have taken place in it, 51 are matters of such notoriety and generally
recognized importance as to warrant, and in a sense, require, that they be
treated as matters of common knowledge. 52
(1872) (superintendent of streets); Fleugel
v. Lards, 108 Mich. 682, 66 N. W. 585 (1896)
(marshal) ; St. Louis v. Greely, 14 Mo. App.
578 (1883) (street commissioner); Alford
v. State, 8 Tex. App. 545 (1880) (marshal) ;
Fox v. Com., 81% Pa. St. 511 (1875) (alder-
men) ; Alford v. State, 8 Tex. App. 545
(1880) (deputy marshal). But see Himmel-
mann v. Hoadley, 44 Cal. 213 (1872) (deputy
superintendent of streets ) .
47. 1 Chamberlayne, Evidence, 809.
48. Bank of Kentucky v. Adams Express
Co., 93 t. S. 185 (1876)*.
49. Hart v. Washington Park Club, 157
111. J) } 41 X. E. 620, 29 L. R. A. 492 (1895) ;
Howe v. Provident Fund Society, 7 Ind.
App. 586, 594, 34 X. E. 830 (1893) (that ap-
plications for insurance are usually made to
agents of the company) ; City of Grand
Rapids v. Braudy, 105 Mich. 670, 64 X. ^ .
29. 32 L. R. A. 116 (1895) (thieves dispose
of stolen articles through pawn brokers and
junk dealers) .
50. City of Kansas City v. Butt, ss Mo.
App. 237 (1901) (between wholesaler and
manufacturer ) .
51. Gregory v. Wendell, 39 Mich. 337, 33
Am. Rep. 390 (1878): Wiggins Ferry Co. v.
Chicago, etc., R. Co., 5 Mo. App. 347 [reversed
in 73 Mo. 389, 39 Am. Rep. 519] (1878);
Sacalaris v. Eureka, etc., R. Co., 18 Xev. 155,
51 Am. Rep. 737 (1883).
52. See Farmers', etc.. Bank v. Butchers',
etc., Bank, 28 X. Y. 431, 26 How. Pr. (X. Y.)
(1863).
The court may take judicial notice of the
usual method of operating crematories. Ab-
bey Land & Improvement Co. v. Mateo, 167
That the courts of a given county were open
in 1861 and 1862 will be judicially known.
Breckenridge Cannel Coal Co. v. Scott
(Tenn. 1908), 114 S. W. 930.
40. Ye it- Jersey. Campbell v. Dewick, 20
X. J Eq. 186 (1869) (constable serving as
tax collector).
Pennsylvania. Rauch v. Com., 78 Pa. St.
490 (1875) (treasurer).
Wisconsin. Martin v. Aultman, 80 Wis.
150, 49 X. W. 749 (1891) (sheriff).
41. Thus, where it is claimed that the
population of a county is in reality greater
than as given by the census, the fact must
be proved. Funderburg v. Augusta & A.
Ry. Co., 81 S. C. 141, 61 S. E. 1075 (1908).
Actual population is not known to the
court, as matter either of common or judicial
knowledge. Adams v. Elwood, 176 N. Y.
106, 68 X. E. 126 (1903).
42. State v. Tully (Mont. 1904), 78 Pac.
760.
43. Atkeson v. Lay, 115 Mo. 538, 22 S. W.
481 (1893) (that one is published). John-
son v. Parke, 12 U. C. C. P. 179 (1860).
44. Bookman v. Xew York El. R. Co., 137
.V Y. 302, 33 X. E. 33 [reversing 60 X. Y.
Super. Ct. 493, 17 X Y. Suppl. 951] (1893) ;
Denegre v. Walker, 114 111. App. 234 f!904)
[decree affirmed, 73 kl. E. 409 (1905)] (Chi-
cago ) .
45. Bogardus v. Trinity Church, 4 Sandf.
Ch. (X. Y.) 633, 724 (1847); McKinnon v.
Bliss, 21 X. Y. 206 (1860) : Chicago, I. & L.
Ry. Co. V. Town of Salem (Ind. 1906), 76
.N. E. 631, 634.
46. Himmelmann v. Hoadley, 44 Cal. 213
361,362
KNOWLEDGE ; COMMON.
361. [What Facts are Covered by the Rule] ; Evidence of Skilled Witness not
Required. 53 The jury need no expert assistance as to the methods of transact-
ing ordinary business which the average man does or may do, or has occasion
to observe understandingly at frequent intervals. 54 For example, general fea-
tures of the business of selling lumber ; 55 or running wires, 50 are too well
known to require professional aid, though as to the more technical features of
the business a different rule prevails. 57
362. [What Facts are Covered by the Rule] ; Various Matters Covered. 58
No proof need be offered of notorious facts concerning agriculture 59 as the
characteristics of farm animals, 00 and of ordinary farm products, 01 stock rais-
ing, 62 banking, 03 building, 04 education, 05 and insurance. 00 The same rule
covers the mechanic arts, 07 mercantile agencies, 08 and mining, 09 but not minor
v. Jackson, 69 Minn. 342, 72 N, W. 568 ( 1897 )
( '' crushed stone " ) .
65. In re Oxford Kate Poor-Rate, 8 E. &
B. 184, 92 E. C. L. 184 (1857) (University
of Oxford). The State University will be
known to be at Eugene. Mayhew v. City of
Eugene (Or. 1909), 104 Pac. 727; People v.
Maxwell, 84 N. Y. Suppl. 947, 87 App. Div.
391 ( 1903) (25 years). The court will know,
as a matter of common knowledge, that by
reason of these changes, one competent to
teach 20 years ago is not necessarily so at
the present time. People v. Maxwell, 84 N.
Y. Suppl. 947, 87 App. Div. 391 (1903) ; Sin-
nott v. Colombet, 107 Colo. 187, 40 Pac. 329
(1895).
66. Williams v. Niagara F. Ins. Co., 50
Iowa 561 (1879) (adjusting loss) : Perkins v.
Augusta Ins. Co., 10 Gray (Mass.) 312, 77
Am. Dec. 654 (1858).
Customary methods of conducting the bus-
iness of life insurance need not be proved
Thus, it is a matter of common knowledge
that life insurance is solicited by agents.
Modern Woodmen of America v. Lawson (Va.
1909), 65 S. E. 509 (use of agents).
67. Brown v. Piper, 91 U. S. 37 (1875).
68. Holmes v. Harrington, 20 Mo. App. 661
(1886): Wilmot v. Lyon, 11 Ohio Cir. Ct.
238, 7 Ohio Cir. Dec. 394 (1888); Ernst v.
Cohn (Tenn. Ch. App. 1900), 62 S. W. 186.
69. Black Diamond Coal-Min. Co. v. Ex-
celsior Coal Co., 156 U. S. 611, 15 S. Ct. 482,
39 L. ed. 553 (1895). "The true meaning
of such expressions as shaft, tunnels, levels,
chutes, slopes, uprisings, crossings, inclines,
etc., signifies instrumentalities whereby and
through which such mines are opened, de-
Cal. 434, 139 Pac. 1068, 52 L. R. A. (X. S.)
408 (1914).
53. 1 Chamber layne, Evidence, 810.
54. Georgia R., etc.. Co. v. Hicks, 95 Ga.
301, 22 S. E. 613 (1894).
55. Baldwin v. St. Louis, etc., R. Co., 68
Iowa 37, 25 N. W. 918 (1885) (piling lum-
ber) : Brown v. Doubleday, 61 Vt. 523, 17 Atl.
135 (1889) (piling bark).
56. Flynn v. Boston Electric Light Co., 171
Mass. 395, 50 X. E. 937 (1898) (among
trees ) .
57. Infra, 362.
58. 1 Chamberlayne, Evidence, 811-847.
59. Raridan v. Central Iowa R. Co., 69
Iowa 527, 530 (1886).
60. Shubrick v. State, 2 S. C. 21 (1870)
("sow"); State v. Abbott, 20 Vt. 537
(1848) ("steer").
61. Putnam v. St. Louis Southwestern Ry.
Co. of Texas (Tex. Civ. App. 1906), 94 S. W.
1102 (no pears or apples on trees in Jan-
uary). Courts know that it requires more
than a month to raise a crop of cotton. First
Nat. Bank v. Rogers (Okl. 1909), 103 Pac.
582.
62. Mathews v. Great Northern R. Co., 7
N. D. 81, 72 X. W. 1085 (1897).
63. Lewis, Hubbard & Co. v. Montgomery
Supply Co. (W. Va. 1900), 52 S. E. 1017;
Salt Springs Nat. Bank v. Burton, 58 N. Y.
430, 17 Am. Rep. 265 ( 1874) ; Lewis, Hubbard
& Co. v. Montgomery Supply Co. (W. Va.
1906), 52 S. E. 1017 (in cities and large
towns not earlier than 9 A. M.)
64. Duby v. Jackson, 69 Minn. 342, 72 X.
W. 568 (1897) ; Doyle v. New York, 69 N. Y.
Suppl. 120, 58 App. Div. 588 (1901); Duby
199
WHAT FACTS COVERED.
362
business facts. 70 The court knows also what are professional occupations 71
and the meaning of medical terms 72 as well as the general operation of rail-
roads 73 and freight 74 and passenger service. 75 Well known facts concerning
real estate dealings, 76 stock transactions, 77 and street railways, 7 * surveying, 79
telegraphing, 80 trading, 81 the transportation of the mail 82 and the business of
express companies 83 or the length of time consumed in transit from well-
veloped, prospected, improved and worked,"
need not be proved, hines v. Miller, 122 Cal.
517, 519, 55 Pac. 401 (1898). The court
takes judicial notice that explosions occur in
the best equipped, best regulated and per-
fectly ventilated coal mines. Dickinson v.
Stuart Colliery Co., 71 W. Va. 325, 76 S. E.
654, 43 L. R. A. (X. S.) 335 (1912).
70. Clark v. Babcock, 23 Mich. 164 (1871).
It cannot be known that the cutting and box-
ing of pine trees for turpentine, destroys their
value as timber, such not being a uniform re-
sult of experience. Board of Sup'rs of Han-
cock Co. v. Imperial Xaval Stores Co. (Miss.
1908), 47 So. 177; Knight v. Empire Land
Co. (Fla. 1908), 45 So. 1025.
71. O'Heilly v. Erlanger, 95 X. Y. Suppl.
760, 108 App. Div. 318 (1905).
72. State v. Wilhite (Iowa 1907), 109 X.
AV. 730 ("pathological neurology").
73. Alabama, etc., R. Co. v. Coskry, 92
Ala. 254, 9 So. 202 (1890). In like manner
the art of measuring railroad embankments,
need not be proved. Scanlan v. Ry. Co.
(Cal. 1898), 55 Pac. 694; Chicago & M. Elec-
tric R. Co. v. Diver, 213 111. 26, 72 X. E. 758
( 1904) ; Fleischman, Morris & Co. v. Southern
Ry., 76 S. C. 237, 56 S. E. 974, 9 L. R. A.
(X. S.) 519 (1907).
74. Illinois Cent. R. Co. v. Green, 81 111.
19 (1875) ; Chicago, etc., R. Co. v. Hazzard,
26 111. 373 (1861); President, etc. v. Cason,
72 Md 377, 20 Atl. 113 (1890).
75. Leary v. Fitchhurg Ry. Co., 173 Mass.
373, 53 X. E. 817 (1899) (custom in alight-
ing from cars). It need not be proved to
a court that more passengers and other per-
sons frequent a station in a large city than
in a small town. Cincinnati, X. O. & T. P.
Ry. Co v. Harrod's Adm'r (Ky. 1000), 115
>. \V. 609. Courts know that a passenger
need not retire beyond the range of flying
cinders to escape them. He can effectually
accomplish the same result simply by shading
liis pyes. Houston & T. C. Ry Co. v. Pollock
(Tex Civ. App. 1909), 115 S. AV. 843.
76. Anderson v. Blood, 86 Hun (X. Y.) 244,
33 X. Y. Suppl. 233 (1895).
Mortgagor's payment of charges of nego-
tiating mortgage. The custom of requiring
one borrowing on mortgage to pay all in-
cumbrances and expenses of effecting the loan
out of the amount of the loan is a proper sub-
ject for judicial knowledge. Pennsylvania
Steel Co. v. Title Guarantee & Trust Co., 193
X. Y. 37, 85 X. E. 820 (1908) [judgment
reversed, 105 X. Y. Suppl. 1135. 120 App. Div.
879 (1907)] [which affirms 100 X. Y. Suppl.
299, 50 Misc. 51 (1906)].
77. Fox v. Hale, etc., Silver Min. Co., 108
Cal. 369, 41 Pac. 308 (1895).
78. Meyer v. Krauter, 56 X, J. L. 696,
29 Atl. 426 (1894); Cook v. Decker, 63 Mo.
328 (1876) ; Towne v. St. Anthony, etc., Co.,
8 X. Dak. 200, 77 X. AV. 608 (1898) ; Book-
man v. N. Y. Elevated R. R. Co., 137 X. Y.
302 (1893); Geist v. Detroit City R. Co.,
91 Mich. 446, 51 X. AV. 1112 (1892).
79. Wells v. Jackson Iron Mfg. Co.. 47 X.
H. 235, 00 Am. Dec. 575 ( 1 866 ) ; 'infra,
886, 1970, 2384; Bryan v. Beckley, Litt, Sel.
Cas. (Ky.) 91, 12 Am. Dec. 276 (1809);
Putnam v. AVhite, 76 Me. 551 (1884).
80. Mobile & O. R. Co. v. Postal T. C. Co.,
120 Ala. 21, 24 So. 408 (1897): People v.
AVestern I'nion Tel. Co., 166 111. 15, 46 X. E.
731 (1897): State v. Indiana, etc., R. Co.,
133 Ind. 69. 32 X. E. 817, 18 L. R. A. 502
(1892); Yoiiree v. Vicksburg, etc., R. Co.,
ilO La. 791, 34 So. 779 (1903).
81. Kansas City v. Butt, 88 Mo. App. 237
(1901); >chollenberger v. Pennsylvania, 171
U. S. 1, 18 S. Ct. 757. 43 L ed. 49 (1897).
82. Bouden v. Long Acre Square Bldg. Co.,
86 X. Y. Suppl. 1080, 92 App. Div. 32.5
(1004). .tna Indemnity Co. of Hartford,
Conn. v. George A. Fuller Co., Ill Md. 321,
73 Atl. 738 (1900) [reargument denied, 74
Atl. 369].
83. Harper Furniture Co. v. Southern Ex-
press Co., 144 X. C. 639, 57 S. E. 758 (1907).
363,364 KNOWLEDGE; COMMON. 200
known points, 84 or the meaning of phrases 85 and methods of transportation, 86
are also within the rule.
363. How Actual Knowledge May be Acquired. ST In matters of fact, the
actual knowledge of a particular judge may be either greater or less than that
of the general community. His knowledge is greater when the attempt is
made by him to dispense with evidence of a fact because he chances to know
one which is not generally known or ascertainable by resort to a recognized
source of information. When it is said that a judge judicially knows a fact,
i.e., accepts it as one of common knowledge, it is by no means implied that the
judge actually knows it. All that is meant is that he either knows the fact or
as to how he may readily learn the truth with regard to it. 88
Where the judge's actual knowledge is less than that of the average member
of the community, or where, for any reason, he declines to know a particular
fact, he may do one of several things: (1) He may absolutely decline to know
the fact, (2) he may invoke the assistance of the party who requests judicial
cognizance, (3) he may investigate the question for himself as a matter of ad-
ministration, with or without the aid of the parties, i.e., he may gain such light
as he can from them and seek fuller mental certitude by an examination con-
ducted in his own way and on his own initiative. 89
364. [How Actual Knowledge May be Acquired] ; Judge May Decline to
Know Fact. 90 There is authority for the proposition that it is the duty of the
court to take cognizance of facts of common knowledge, 91 if a party asks for
it. 92 But, regarding matters of fact, the better rule is that the court may
decline to take any fact as being one of common knowledge even when it is
only a probative one and may require proof of it. 93 A judge is not re-
quired to know a particular fact judicially. 94 He may decline to take any
cognizance whatever of an alleged fact of common knowledge. 95
84. State v. Seery. 95 Iowa (552, 64 N. W. 88. Ball v. Flora, 26 App. Cas. (D. C.)
631 (lS!)o); Williams v. Rrown, 65 N. Y. 394 (1905).
Suppl. 1049, 53 App. Div. 486 (1900); Op- 89. Atty.-Gen. v. Dublin, 38 N. H. 459
penheim v. Leo Wolf, 3 Sandf. Ch. (N. Y.) (1859); Atty.-Gen. v. Drummond, 1 C. & L.
571 (1846); Pearce v. Langfit, 101 Pa. St. 210, 1 Dr. & Wai. 353 (1842).
507, 47 Am. Rep. 737 (1882). 90. 1 Chamberlayne, Evidence, 849.
85. Kilmer v. Moneyweijrht Scale Co. (Tnd. 91. State v. Makers, 35 Or. 520, 57 Pac. 197
App. 1905) 76 X. K. 271: Vo<rt v. Rhiene- (1899) (time of sunset); Gilbert v. Flint,
beck (Wis., 1904), 67 L. R. A. 756, 100 X. W. etc., R. Co., 51 Mich. 488, 16 N. W. 868, 47
820. Am. Rep. 592 (1883).
86. Gamble v. Central M. Co., SO Ga. 595, 92. Amundson v. Wilson, 11 N. D. 193, 91
12 Am. St. 276, 7 S. E. 315 (1888); Michi- N. W. 37 (1902).
gan R. Co. v. McDonoush, 21 Mich. 165, 194 93. People v Mayes, 113 Cal. 618, 45 Pac
(1870) (cattle); Burlington, etc., R. Co. v. 861 (1896); Littlehale v Dix. 11 Gush.
Dey, 82 Iowa 312, 48 X. W. 98. 12 L. R. A. (Mass) 364 (1853) (distance between
436, 31 Am. St. Hep. 477 (1891); Isaacson places).
v. New York Cent,, etc., R. Co., 94 N. Y. 94. Hunter v. N. Y., O. & W. R. Co., 116
278,46 Am. Rep. 142 (1884) N. Y. 615, 621, 23 X. E. 9 (1S89); In re
87. 1 Chamberlayne, Evidence, 848. Osborne, 52 C. C. A. 595, 115 Fed. 1 (1902).
201 How ACQUIKED. 365,366
365. [How Actual Knowledge May be Acquired] ; May Kequire Aid of Par-
ties. yG In such an event, the party is put to his proof. 97 While a judge may
properly require that the parties aid him by evidence in completing or re-
freshing his knowledge as to matters of general notoriety, he cannot require
evidence from the parties as to matters which he is required judicially to
know, e.g., the adoption of a constitution or of an amendment to it. 98 Nat-
urally, however, a judge is at liberty to use his common knowledge in dis-
charging his judicial function in announcing a rule of law. In construing
statutes the court is ruling on a matter of law." The judge may, therefore, in
preparing to do so, reject any evidence offered by the party which is contrary
to his judicial knowledge, 1 or may, in his discretion, request such evidence, or
take judicial cognizance of relevant facts. 2 But, in such cases, the knowledge
is judicial, rather than common.
366. [How Actual Knowledge is Acquired] ; Examination by Judge. 3 The
course and range of any investigation carried on by the judge, or under his
direction, is entirely within his administrative power; i.e., as is commonly
said, it is a matter entirely within his own discretion. As in cases involving
judicial knowledge of law, 4 the judge is preparing himself to discharge a judi-
cial function. The responsibility is entirely his and the test from the sources
from which information is to be sought is absolutely subjective ; i.e., as to
what is helpful to him, individually. 5 He is controlled by no rules of evi-
dence. Xor need he be required to hear testimony on such a subject. He
.may inquire of others, in whom he has confidence. 7 It is open to him to adopt
or reject the suggestion of a party, 8 as he deems most in accordance with his
On the contrary, a judge cannot well regard a 43 Am. St. Rep. 100 (1894) ; Jones v. Lake
fact as of common knowledge which is recog- View, 151 111. 663, 38 N. E. 688 (1894) ; Lit-
nized as being otherwise by a statute. Tim- tlehale v. Dix, 11 Cush. 364 (1853); Hunter
son v. Manufacturers' Coal & Coke Co., 220 v. New York, etc., R. Co., 116 X. Y. 615, 23
Mo. 580, 119 S. \V. 565 (1009). N. E. 9, 6 L. R. A. 246 (1889); Underbill
95. Cary v. State, 76 Ala. 78 (1884); v. Hernandez, 168 U. S. 250, 18 S. Ct. 83, 42
Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. L. ed. 456 (1897).
S13 (1883); Kaolatype Engraving Co. v. 6. People v. Mayes, 113 Cal. 618, 45 Pac.
Hoke, 30 Fed. 444 i .1887). 860 (1896); State v. Main, 69 Conn. 123, 37
96. 1 Chamberlayne, Evidence, 850, 851. Atl. 80, 61 Am. St. Rep. 30, 36 L. R. A. 623
97. People v. Mayes, 113 Cal. 618, 45 Pac. (1897) (what "peach yellows" means).
S61 (189ti); Kaolatype Engraving Co. v. Massachusetts. Com. v. Maryznski, 149
lloke, 30 Fed. 444 (1887). Mass. G8. 21 X. E. 228 (1889) (meaning of
98. State v. Hoard of Com'rs of Silver Bow phrase "drugs and medicines").
Comity, 34 Mont 426, 87 Pac. 450 (1006). 7. People v. Mayes, 113 Cal. 618, 45 Pac
99. .S'l/pnz, 57. 860 (1896). "The rule has been held in
1. Com. v. Mar/ynski, 149 Mass. 68, 21 X. many instances to embrace information de-
228 (1889). rived informally by inquiry from experts."
2. Redell v Moores, 63 Xeb. 219, 88 X. W. Gordon v. Tweedy, 74 Ala. 232 (1883).
243, !)3 Am. St. Rep. 431 (1901). 8. Rogers v. Cady, 104 Cal. 288, 38 Pac.
3. 1 Chamberlayne, Evidence, 852-855. 81, 43 Am. St. Rep. 100 (1894); Atty.-Gen.
4. Supra. 316. v. Dublin, 38 X. H. 459 (1859).
5. Rogers v. Cady, 104 Cal. 288, 38 Pac. 81,
367,368
KNOWLEDGE; COMMON.
202
own needs. He may consult official records, 9 or public documents of any kind, 10
almanacs u or calendars, 12 historical works 13 or encyclopedias. 14
367. [How Actual Knowledge is Acquired] ; Function of the Jury. 15 In
cases where the jury are to decide an issue of fact on which they use matters
as to which they may take judicial cognizance, the judge may properly permit
them to examine publications such as histories, 10 encyclopedias 1T and the like,
which he feels will aid them in reaching a correct conclusion as to the fact to
be judically known. He will so exercise his administrative power as to allow
them to consider only such printed statements as are relevant, because made by
a person of adequate knowledge and without motive to misrepresent. 18
368. [How Actual Knowledge is Acquired] ; Books not Evidence. 10 The
publications resorted to for the purpose of enabling the judge to ascertain a
fact of common knowledge are not, in reality, evidence at all. 20 They are
used merely for the purpose of aiding the '" memory and understanding of the
court." 21 While therefore the publications, books and other documents may
be rejected when offered as evidence, 22 as it is deemed irregular to receive
them, 23 the irregularity of receiving them as evidence may take place and still
9. People v. Williams, 64 Cal. 87, 27 Pao.
939 (1883) (census); State v. Wagner, 61
Me. 178, 186 (1873) (census); Whiten v.
Albany City Ins. Co.. 109 Mass. 24 (1871)
(census) : Kirby v. Lewis, 39 Fed. 66 (1889)
( land office ) .
10. Keyser v. Coe, 37 Conn. 597 (1871);
McMillen v. Blattner, 67 Iowa 287, 25 N. W.
245 (1885). See also In re Decatur St. in
City of New York, 117 X. Y. Suppl. 855, 133
App. Div. 321 (1909) [order reversed. Walker
v. Schauf. 196 N. Y. 286, 89 N. E. 829.]
11. Louisville, etc., K. Co. v. Brinkerhoff,
119 Ala. 606, 24 So. 892 (1898); Montenes
v. Metropolitan St. K. Co., 78 N. Y. Suppl.
1059, 77 App. Div. 493 (1902)
12. Cohn v. Kahn, 14 Misc. (N. Y.) 255,
35 N. Y. Suppl. 829 (1895).
13. Darby v. Ouseley, 1 H. & N. 1, 12
(1856) (Papal excommunication of kings,
etc.). Charlotte v. Chouteau, 33 Mo. 194,
201 (1862) Kramer's History of Canada).
A history of the Southern Confederacy, " The
Lost Cause," may he resorted to for dates
and events. Swinnerton v. Columbian Ins.
Co., 37 N. Y. 174 (1867). Keyser v. Coe. 37
Conn 597 (1871): Com. v. Alburger, 1
Whart (Pa.) 469 (1830) : U. S. v. One Thou-
sand Five Hundred Bales of Cotton, 27 Fed.
Cas. Xo. 1.1.058 (1872). "Information to
guide their judgment may be obtained by re-
sort to original documents in the public
archives or to books of history or science or
any other proper source." Hoyt v. Russell,
117 U. S. 401 (1885).
14. Steinbrunner v. R. Co., 146 Pa. 504, 515,
23 Atl. 239 (1892) (Britannica: preparation
of life tables).
15. 1 Chamberlayne, Evidence, 856. 857.
16. McKinnon v. Bliss, 21 X. Y. 206
(1860) ; Gregory v. Baugh, 4 Rand. (Va.) 611
(1827).
17. Stainer v. Droitwich, 1 Salk. 281
(1695) (Camden's Britannica).
18. Evans v. Getting, 6 C. & P. 586, 25 E.
C. L. 587 (1834).
19. 1 Chamberlayne, Evidence, 858.
20. Mobile, etc., R. Co. v. Ladd, 92 Ala.
287, 9 So. 169 (1890) (almanac).
United States. Brown v. Piper. 91 U. S.
37, 42, 23 L. ed. 200 ( 1875) (dictionaries).
21. Xix v. Hedden, 149 U. S. 304, 13 S. Ct.
881. 37 L. ed. 745 (1892).
22. Louisville & X. R. Co. v. BrinckerhofT,
119 Ala. 606, 24 So. 893 (1898) (almanac
to show sunset ) : Com. v. Marzynski, 149
Mass. 68, 21 X. E. 228 (1889): Rodgers v.
Kline, 56 Miss. 808. 31 Am. Rep. 389 (1879) ;
Atty.-Gen. v. Dublin, 38 N. H. 459 (1859).
23. Rodger v. Kline, 56 Miss. 808, 31 Am.
Rep. 389 (1879).
203 How ACQUIRED. 369
no error be committed. 24 The parties, in fact, have no rights in the matter
whatever.
369. [How Actual Knowledge is Acquired] ; Standard Treatises. 25 On a
matter pertaining to geography resort may be had to maps, 26 geographies, 27
histories, 28 public documents '^ in general. The meaning of words as a rule
may be ascertained by a resort to the dictionary, 3u glossaries, 31 grammars, 32
for scientific words to an appropriate treatise, 3i{ or, in case of a word of archaic
or other than current meaning, to works of history, 34 or other publications. 35
As has been said the only administrative danger in the use of standard treatises
is that the jury may abuse the statements by taking them as probative facts.
Situations arise upon which opposing views may reasonably be held and
incessantly clash. Persons of equal training and intelligence may not un-
naturally " take sides " on such a question and partisanship thus replace the
disinterested search for truth. But it is evident that these characteristic dif-
ferences between a complete and an incomplete induction in reality sketch the
essential differentiations between an exact and an inexact science. Where the
statement of a standard authority relates to some part of the subject-matter of
an exact or mathematical science, i.e., where the deduction follows from the
relations between the parts of hypothetical constructions involving no observa-
tion of fact but taking cognizance only of the creations of the mind, 36 the
danger of error is reduced to a minimum. The result must, if correctly worked
out, correspond to the postulate ; for the dealing is altogether with arbi-
trary subjective conceptions rather than with the realities of objective exist-
ence.
Where the science with regard to which the treatise speaks is an inexact or
moral one, an entirely different administrative situation is presented. The
conclusions of the text writer now rest not, as in case of the exact science, upon
arbitrary assumptions or hypotheses, but upon the objective reality of nature;
from the intricacy of whose manifestations various inferences may properly
24. Cook v. State, 110 Ala. 40, 47, 20 So. United States. Xix v. Hedden, 149 U. S.
360 (189.5) (Webster's international Diction- 304, 13 S. Ct. 881, 37 L. ed. 745 (1892)
aryj. But see Atty.-Gen. v. Dublin, 38 X. ("fruit" and "vegetable").
H. 459, 516 (1859). 31. Answer of Judges, 22 How. St. Tr. 302
25. 1 Chamberlayne, Evidence, 859-864. (1789).
26. VVainright v. Lake Shore, etc., R. Co.. 32. Answer of the Judges to the House
11 Ohio Cir. Dec. 530 (1901) of Lords, 22 How. St. Tr. 302 (1789).
27. L". S. v. The Montello, 11 Wall. (U. S.) 33. State v. Wilhite (Iowa 1907), 109 X.
411, 20 L. ed. 191 (1870). W. 730 (medical).
28. Keyser v. Coe, 37 Conn. 597 (1871) ; 34. Atty.-Gen. v. Dublin, 38 N. H. 459, 516
State v. Wagner, 61 Me. 178 (1873); U. S. (1859).
v. The Montello, 11 Wall. (U. S.) 411, 20 L. 35. Com. v. Kneeland, 20 Pick. (Mass.) 206
ed. 191 (1870). (1838); Atty.-Gen. v. Dublin, 38 N. H. 459
29. Keyser v. Coe, 37 Conn. 597 (171); (1859).
State v. \Vasner, 61 Me. 178, 190 (1873). 36. Cent. Diet, in verbo SciEJfCB.
30. Illinois. Parker v. Orr, 158 111. 609,
41 N. E. 1003 (1895) (Webster).
370
KNOWLEDGE; COMMON.
204
be drawn. The administrative danger of permitting the unsworn written
statement of an author to act with an undiscriminating tribunal as proof of
the facts asserted in it remains unabated.
Probative facts are frequently proved by such means especially in case of
mathematical calculations :J7 as those contained in mortality tables 3!> or trade
manuals/ 50 as well as historical works to prove ancient facts/" or market re-
ports, 41 registers of pedigree 42 and the like. The same considerations apply
to deliberative facts 4;{ which may be shown to the jury by means of diction-
aries, 44 encyclopedias, histories 45 and law reports 4ti and this use is often ap-
proved by statute. 47
Courts have however often declined to use this practice on the ground that it
is a clear infringement on the hearsay rule. 48
370. [How Actual Knowledge is Acquired] ; Testimony of Skilled Wit-
37. Huffman v. Click, 77 N. C. 55 11877).
38. Pearl v. Omaha, etc., R. Co., 115 lovva
538, 88 N. W. 1078 (1902); Sternfels v.
Metropolitan St. R. Co., 174 N. Y. 512, 66
N. E. 1117 [afiirminy 77 N. Y. Suppl. 309,
73 App Div. 494] (1903),
Mortality tables may be put in evidence to
show probable length of life where injuries
claimed are permanent. Coons v. Pritchard,
69 Fla. 362, 68 So. 225, L. R. A. 1915 F 558
(1915).
Mortality tables may be admissible even
in a case of a person afflicted with ill-health
or diseased or in a hazardous employment.
Such evidence may impair or destroy their
probative effect but it does not make them
inadmissible. Broz v. Omaha Maternity, etc.,
Ass'n., 96 Neb. 648, 148 N. W. 575, L. R. A
1915 D 334 (1914).
39. Western Assur. Co. v. J. H. Mohlman
Co., 83 Fed. 811, 28 C. C. A. 157, 40 L. R. A.
651 (1897) (engineers tables on strength
of materials). Jones v. McMillan, 129 Mich.
86, 88 N. W. 206 ( 1901 : Galveston, etc., R.
Co. v. Johnson, 24 Tev. Civ. App. 180, .58
S. W. 622 (1900) ; Cherry Point Fish Co. v.
Nelson, 25 Wash. 558, 66 Pac. 55 (1901).
40. Morris v. Harmer, 7 Pet. (U. S.) 554,
8 L. ed. 781 (1833).
41. Nash v. Classen, 163 111. 409, 45 N. E.
276 (1896) ; Aulls v. Young, 98 Mich. 231, 57
N. W. 119 (1893); Terry v. McNiel, 58
Barb. (N. Y.) 241 (1870); Cliquot v. U. S.,
3 Wall. (U. S.) 114, 18 L. ed. 116 (1865).
42. Pittsburgh, etc., R. Co. v. Sheppard,
56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep.
732 (1897) ; Louisville, etc., R. Co. v. Frazee,
71 S. W. 437, 24 Ky. L. Rep. 1273 (1903).
43. Western Assur. Co. v. Mohlman Co.,
83 Fed. 811, 28 C. C. A. 157, 40 L. R. A.
561 (1897).
44. Nix v. Hedden, 149 U. S. 304, 13 S.
Ct. 881, 37 L. ed. 745 (1893) ; Zante Currants,
73 Fed. 183 (1896). See also Cook v. State,
110 Ala. 40, 20 So. 360 (1895).
45. Morris v. Harmer, 7 Pet. (U. S.) 554,
8 L. ed. 781 (1883); Bow v. Allenstown, 34
N. H. 351, 69 Am. Dec. 489 (1857) (report
of secretary of state from a state historical
collection) ; Com. v. Alburger, 1 Whart. (Pa.)
469 (1836); Banco de Sonora v. Bankers'
Mut. Casualty Co. (Iowa 1903), 95 N. W.
232 (Bouvier's Dictionary as to law of Mex-
ico).
46. Supra, 333; Mackay v. Easton, 19
Wall. (U. S.) 619, 22 L. ed. 211 (1873)
[affirming 16 Fed. Cas. No. 8,843, 2 Dill.
41]. See also Stayner v. Baker, 12 Mod. 86
(1796). Donellan v. Hardy, 57 Ind. 393
(1877); Freeman v. Bigham, 65 Ga. 580
(1880); Charlotte v. Chouteau, 33 Mo. 194
(1862) ; Marguerite v. Chouteau, 33 Mo. 540
(1862) ; Inge v. Murphy, 10 Ala. 885 (1846) ;
' Billingsley v. Dean, 11 Ind. 331 (1858);
Musser v. Stauffer, 192 Pa. St. 398, 43 Atl.
1018 (1899).
47. Burg v. Chicago, etc., R. Co., 90 Iowa
106, 57 N. W. 680, 48 Am. St. Rep. 419
(1894).
48. Bloomington v. Schrock, 110 Til. 221
(1884); Epps v. State, 102 Ind. 539, 550,
1 N. E. 491 (1885) ; Com. v. Marzynski, 149
Mass. 72, 21 N. E. 228 (1889); New Jersey
Z. & I. Co. v. L. Z. & I. Co., 59 N. J. L. 189,
35 Atl. 915 (1896).
205 How FAR BINDING. 371-373
nesses. 49 Should the court decline to learn, in this way, the existence of a
fact of common knowledge, the only available method is to use the witness of
special knowledge, the " expert," as he is called. 50
371. How Far Knowledge is Binding. 51 The effect of the court's tak-
ing judicial or common knowledge has been said, by certain courts, to be tiiial.
The reasoning is that judicial knowledge takes the place of proof conse-
quently, that it is proof and equally conclusive. 52 A marked difference ap-
parently exists, however, in this connection, according as the knowledge of the
judge is judicial or common; - i.e., according as the court's knowledge relates
to matter of law, or to matter of fact.
372. [How Far Knowledge is Binding] ; Matter of Fact. 5;J The line of
demarcation between law and fact is frequently, however, hard to draw. This
is not to be regarded as unexpected in case of a differentiation which has no
basis in the reality of things. Indeed, to refuse to hear evidence, whether
this is done by way of a so-called " conclusive presumption," or of judicial
cognizance, is. in itself, to leave the field of fact and lay down a rule of sub-
stantive law. But so far as the court's knowledge retains the position of an
assumption of the truth of a notorious fact or of easily accessible statements,
a party should be permitted to contravene and, if possible, control, the judge's
opinion.
373. [How Far Knowledge is Binding] ; Matter of Law.-" 4 As a manor of
course the action of the parties cannot conclude the judicial knowledge of the
court with regard to matters of law. In this class would therefore fall the
construction of a document, the effect of a public statute and so on. 55 The
court may properly decline to hear evidence to aid it in construing a statute. 06
or other document. It is eminently proper to hold, in such cases, that where
a judge reaches a wrong conclusion in knowing judicially such a fact the act
is as much error as if he had mistaken a rule of law. 57
Where the knowledge is judicial, i.e., relates to matter of law, the action of
the judge is final, for the purposes of the case; even in connection with the
direct results of law, or with respect to the construction of a statute, where the
matter is for the judge, though properly one of fact. 58 Thus, a judge in con-
struing a statute is not required to hear evidence to an effect which he feels is
49. 1 Chamberlayne Evidence, 865. 55. People v. Oakland Water-Front Co.,
50. Infra, 713 Stoudenmeier v. William- 118 Cal. 234, 50 Pac. 305 (1807) (incor-
son, 29 Ala. 558 (1857). poration of a city).
51. 1 Chamberlayne. Evidence, 866. 56. Com. v. Marzynski, 14ft Mass. 68, 72,
52. Com. v. Mar?ynki, 149 Mass 6^ 21 X. E. 228 ( 1SSO> . Hupra. 57.
(1S89); Thomson- Houston, etc.. Co. v. 57. C.ilbert v Flint, etc., R. Co., 51 Mich.
Palmer, 52 Minn. 174, 177. 53 X. W. 1137 4SS, If, \. W. 86H, 47 Am. Rep. 502 (1883) ;
'1803); Brown v. Piper, 01 U. S 37, 43 U S. v. One Thousand Five Hundred Bales of
<1875). Cotton, 27 Fed. Cas. No. 15,958 (1872).
.53. 1 Chamberlayne. Evidence. 867. 58. Supra, 57.
54. 1 Cbamberlayne, Evidence. 868.
37-i KNOWLEDGE; COMMON. 206
contrary to common knowledge. 59 In other words, the situation is adminis-
trative where the knowledge of the trial judge is judicial. The parties have
no more right to control by their agreements the action of the court than they
would have to determine, in the same way, what should be the rule of law
applicable to the case. Tlie judge is preparing to discharge an administrative
function anil he is entirely unfettered, except by the rules of reason, as to
what effect he may give the information, arguments or agreements of the
parties.
374. Cognizance as Affected by Action of the Parties ; Waiver. 60 To the
number of facts not requiring proof because judicially noticed as commonly
known may properly be added facts of little or no notoriety which are as-
sumed as true during the course of the trial because asserted on the one side
and not denied on the other. Xo rule of law demands that a party should
insist upon proof of such facts. Few administrative expedients for expe-
diting trials are more effective in the hands of a competent judge than this
recognition that not all facts are controverted between the parties with equal
vehemence. While not intruding into the actual management of the case so
far as to remove the function of initiative from the parties where it properly
belongs, wise judicial administration may well employ a considerable portion
of its energy in increasing, in any given case, the number of uncoutroverted
facts. It not infrequently happens that this is, intentionally or unintention-
ally, accomplished by the presiding justice through the formula of announcing
that he judicially knows a certain fact, or that it is commonly known.
59. Ex parte Kair (Nev. 1905), 80 Pac. ducing ores is not prejudicial to health).
463 (that prolonged labor in a mill for re- 60. 1 Chamberlayne, Evidence, 869.
CHAPTER X.
E; SPECIAL.
Special knowledge, 375.
reason for excluding knowledge in general, 376.
administrative action of judge, 377.
necessity .of relevancy, 378.
adequate knowledge, 379.
Technical or scientific facts, 380.
administrative considerations, 381.
scope, 382.
properties of matter, 383.
business affairs, 384.
various matters, 385.
interstate or foreign law, 386.
maritime affairs, 387.
mechanic arts, 388.
mining, natural history, 389.
professional facts; medicine, 390.
railroad facts; rules, 391.
375. Special Knowledge. 1 Secondary in importance only to the judicial
or law knowledge of the judge ~ and the common knowledge of both judge and
jury as to facts of notoriety 3 is the special knowledge of skilled or experienced
witnesses ; the consideration of which will occupy the present chapter.
The judicial office of special knowledge is to supply the inadequacies of the
common knowledge of the jury. The underlying necessity for using it is the
limited experience of the average member of the community. As is elsewhere
observed, and as, indeed, is obvious, the inferences which both court and jury
are constantly drawing as a very large part of the required exercise of reason
in connection with their judicial acts, rest ultimately upon some general
proposition of experience which is part of common knowledge. From this as
a major premise, and some fact in evidence as a minor, a conclusion is reached.
This, in its turn, alone or in connection with other facts, becomes the major
premise of a second and usually more comprehensive syllogism, and so on,
until the supposed res gestce are established.
1. 1 CliamlMM-layne, Evidence, 870. 3. Supra, 351.
2. Supra, .".16.
207
376,377 KNOWLEDGE; SPECIAL. 20S
376. [Special Knowledge] ; Reason for Excluding Knowledge in General. 4
- In testifying to special knowledge, rather than particular knowledge a wit-
ness is exercising a function usually denied to those who testify. Witnesses
are not to reason. 5 The precise basis for this rule is that it is not, in general,
within the province of a witness to state knowledge. In view of the fact, just
mentioned, that the major premise of reasoning is some proposition derived
ultimately from experience in the community which, as affected by reflection
and the experience of others constitutes common knowledge, the use of reason
on the part of a witness implies and requires the transfer into the case of the
general or special knowledge of the witness, in the form of his inference, con-
clusion or judgment." Common knowledge it is the function of the counsel,
judge and jury to "utilize in course of the reasoning process. The witness, so
far as reasonably feasible, must be content to furnish eyes and ears for the
tribunal, to place a judge and jury, to the extent of his ability, in the position
of original observers of the scene reproduced in the evidence. This is his
ancient oath and at all times his characteristic duty. 7 His office is as it were
to supply the " raw materials " for judgment, the minor premises of logical
syllogisms of which knowledge or, more direct experience, supplies to each a
major premise.
377. [Special Knowledge] ; Administrative Action of Judge. s As an ad-
ministrative matter, the right of a party to prove his case by the best evidence
in his power is paramount. 9 Unquestionably it is the general procedural rule,
dating from very early times in English law. 10 that jurors should reason and
witnesses should not. To harmonize these two administrative or procedural
principles, the court is, in effect compelled to say, that so far as the common
knowledge of the jury enables them rationally to deal with a particular set of
facts, they must be permitted to do so; and that where they are not, the pro-
ponent may supplement this general knowledge by special knowledge or even
by inferences from such special knowledge. In other words, as to matters of
common knowledge, a jury can, generally speaking, gain nothing of essential
value from the judgment of witnesses, however experienced or skillful. 11 To
form the major premise of the syllogism which gives relevancy to any minor
premise supplied by a fact in evidence knowledge is needed. So far as pos-
sible, this knowledge should be that of the average juror, i.e., common knowl-
4. 1 Chamberlayne, Evidence, 871. 8. 1 Chamberlayne, Evidence, 872.
5. Infra, 072 et seq. 9. Hupra, 140.
6. His conclusion is a function of two 10. Rttpra, 120.
variables; (1) the knowledge of the wit- 11. Compton v. Bates, 10 111. App. 1?
ness and (2) the existence of certain facts (1881); Knoll v. State, 55 \Yis. 240, 12 N.
as proved by the evidence. To receive his con- W. 369, 42 Am. Rep. 704 (1882); Wright v.
elusion imports his general knowledge and ac- Com., 72 S. W. 340, 24 Ky. L. Rep. 1838
cepts his finding as to the effect of the evi- (1903) ; Hovey v. Sawyer, 5 Allen 554
dence or phenomena observed by him. (1863) ; McCall v. Moschcowitz, 10 N. Y. Civ.
7. Infra, 674. Proc. 107 (1886).
209 ACTION OF JUDGE. 378, 379
edge. Whenever a judge finds, as a matter of administration, that in his opin-
ion, the common knowledge of the jury may reasonably be assumed to be in-
sufficient, he may properly allow it to be supplemented by that possessed by
persons of special experience. With regularity and little consideration, the
judge will permit relevant facts of special knowledge and experience to be
placed before the jury. With greater hesitancy and the establishment of
stronger administrative reasons, he will allow the skilled witness, as an expert,
to use his own mental faculties upon the basis of this special knowledge in the
formation of judgments, in which the facts in evidence, or certain of them,
constitute the minor premise, being submitted to the witness by means of hypo-
thetical questions. 12
378. [Special Knowledge] ; Necessity of Relevancy. 13 It follows from what
has been said that evidence of special knowledge is not only supplementary to
common, but that it is, in a sense, secondary to it. Under these circumstances,
the ordinary rule of administration obtains that the secondary evidence will
be admitted only (1) when an adequate forensic necessity has been shown for
using it and, (-2) that it be affirmatively shown by the proponent or assumed
by the court that the secondary evidence is relevant, i.e., is from a person of
adequate knowledge and without controlling motive to misrepresent.
379. [Special Knowledge] ; Adequate Knowledge. 14 Among the elements
of relevancy those which are subjective are of special importance in this con-
nection and, as between the two elements of subjective relevancy, adequate
knowledge is of higher conseqeunce. The testimony of a skilled witness may
be valuable to the jury if he be suitably equipped by professional knowledge
and experience although biased in favor of the party calling him, while, however
disinterested he may be, his evidence will be of little value should he know
nothing about the technical subject on which he proposes to testify. It is
therefore an important part of the administrative action of the court in this
connection that only such technical testimony should be allowed to go to the
jury as is reasonably calculated to aid their deliberations. The skilled wit-
ness may, as a matter of course, testify to the same facts as would an ordinary
witness the " man on the street." .But he may go further, into fields where
an ordinary witness cannot follow him and it is in these that his qualifications
become of especial importance. Tn other words, the skilled observer may
12. Infra. 8!6 ft seq. The principle holding that the subject-matter is sufficiently
being entirely settled that common knowl- within the common knowledge of the jury
edge is to be primarily relied upon as the to enable them to deal with it in a satis-
major premise for judicial inferences so far factory manner.
as it extend*, to the exclusion of " expert Per contra, admitting expert knowledge is
knowledge," so called, a ruling or finding as in reality a ruling or finding that the c'ommon
to the admissibility of the judgments of knowlt-dge of the jury is inadequate to deal
sl'.illed witnesses is. in effect, deciding as to with the matter disclosed in the evidence,
v/hat constitutes common knowledge. If ex- 13. 1 Chamberlayne. Evidence, 873.
pert testimony is rejected it amounts to a 14. 1 Chamberlayne, Evidence, 874.
^ :J80, 381 KNOWLEDGE; SPECIAL. 210
testify as to any relevant fact but should it be one of special knowledge, 15 i.e.,
one connected with a particular profession, trade or calling, the court will re-
quire that the witness should qualify as possessing the knowledge appropriate
to a member of it. 1 " Such a fact may either have been one observed by him 17
or generally known in the calling in which his experience lie.s. An individual
fact of common technical knowledge may have fallen but rarely under his own
observation; he may not have chanced actually to observe it at all. That
makes no difference. 18
380. Technical or Scientific Facts. 19 The development of the modern law
of evidence requires that knowledge, in many and varied directions, should be
brought to the jury to supplement their common knowledge. The complexity
of business or social life and the rapidly expanding field of knowledge leave
common knowledge but a sorry tool with which to shape the reasoned conclu-
sions of the jury. The deficiency is obvious. The best method of supplying
it is not so clear. Apart from an essential modification of the jury system and
its replacement by a more scholarly and teachable tribunal, the remedies adopted
in main are three. 1. A direct extension of the scope of common knowledge
through investigations conducted by the presiding judge as the executive officer
of the court. 20 - 2. Where the jury may be so informed concerning matters
outside their judicial knowledge as to be able to co-ordinate them into a reason-
able judgment, suitably skilled witnesses will be permitted to state appropriate
facts to them. They are then left to exercise their function of judging without
further assistance. 3. Where the knowledge required for drawing a reasonable
inference from the facts covers matters which are too numerous to be readily
imparted to the jury from the witness stand or requires for its adequate appre-
ciation certain specially developed qualities of mind or habits of looking at
things only obtained by specialized training, the facts assumed to exist in the
jury's mind are placed before the skilled witness in the form of a hypothetical
question and he is permitted to state the judgment which his learning, skill
and training enable him to form ; the jury, in turn, being at liberty to
follow the mental operations of the skilled witness, precisely, within limits of
reason, as they see fit.
381. [Technical or Scientific Facts] ; Administrative Considerations. 21 The
incessant operation of slight differences of fact produces, in addition to lack of
15. Supra, ,375. Civ. App. 1893) 22 S. W. 235. Where a wit-
16. Osborne v. Troup, 60 Conn. 485, 23 Atl. ness has never personally done an act of
157 (1891) ; Baxter v. Chicago, etc., R. Co., which he has learned the theory, but thinks
104 Wis. 307, 80 N. W. 644 (1899). he could do it if called upon he is not neces-
17. Infra, 713 et seq. sarily to be excluded. Childs v. O'Leary,
18. Boswelf v. State, 114 Ga. 40, 39 S. E. 174 Mass. Ill, 54 N. E. 490 (1899).
897 ( 1901 ) ; Helfenstein v. Medart, 136 Mo. 19. 1 Chamberlayne, Evidence, 875.
595, 36 S. \V. 863, 37 S. W. 829, 38 S. W. 20. 1 Supra, 366.
294 (1896): State v. Wilcox, 132 N. C. 1120, 21. 1 Chamberlayne, Evidence, 876.
44 S. E. 625 (1903) ; Fordyce v. Moore, (Tex.
211 TECHNICAL FACTS. 382
value as precedents, the effect of great apparent conflict of decision among cases
sustaining the same general principle of administration. This contrariety of
ruling will be, perhaps, less inexplicable, if certain general considerations af-
fecting the practical administration of the principle be borne in mind. Among
these are ; ( 1 ) The entire state of the case in all particulars must have been
considered by the presiding judge in determining how necessary the evidence
of the skilled witness actually was to the proponent, and, consequently, how
his administrative function should be exercised. (:M The same considerations
may very well appear 'to different judges as possessing different relative impor-
tance. (3) In proportion as the subject-matter becomes vital to the issue, the
judge's impulse to exclude special knowledge in which an element of inference
may lurk is intensified. (4) It is not sufficient that the inquiry relate, more
or less directly, to a matter which is largely, or, indeed, almost exclusively,
known only to persons who have had a special experience. Certain things may
be commonly known about very recondite or technical subjects. (5) The
judge may properly consider whether the special knowledge is not of such a
nature that the jury could conveniently be instructed in the matter sufficiently
for all essential purposes of the trial. If the presiding judge, in discharge of
his administrative function, 22 is persuaded that the subject-matter is one on
which the jury may be adequately instructed during the course of the trial he
may require that the jury exercise their own judgment 2-<i upon facts supplied
by skilled witnesses. (6) The court may reasonably admit evidence as to the
special knowledge of the skilled witness under circumstances where it would
decline to permit the same witness to apply this knowledge to the evidence
either in the form of a conclusion 24 or that of a judgment. 25 That the special
knowledge of an expert should be received in the form of his judgment re-
garding definite propositions of fact it is necessary that the precise subject of
inquiry be outside the realm of common knowledge. 26 If the fact as to which
inquiry is made be within the jury's field of knowledge the judgment of the
expert is excluded, though as to the great number of correlated facts, knowledge
is confined to technically trained persons.
382. [Technical or Scientific Facts] ; Scope. 27 The range of facts relating
to any calling which the witness skilled or experienced in that vocation may
22. Middlebury Bank v. Rutland, 33 Vt. 26. The subject-matter as to which inquiry
414 (1860). is made must so far partake of the nature of
23. Muldowney v. Illinois Cent. R. Co.. 36 a science as to require a course of previous
Iowa 462 (1873). habit or study in order to the attainment of a
Massachusetts. Higgins v. Dewey, 107 knowledge of it. Wight- Fire-proofing Co. v.
Mass. 494, 9 Am. Rep 63 (1871) : Xourie v. Poczekai, 130 III. 13!), 22 X. E. 543 (1889) ;
Theobald, 68 N. H. 564, 41 Atl. 182 (1896) ; People v. Barber. 115 X. Y. 475, 22 X. E. 182
Huberts v Xew York El. R. Co., 128 X.Y. 455, (1889); Fairchild v. Bascomb. 35 Vt. 398
_S X. E. 486, 13 L R. A. 499 (1891). (1862).
24. Infra, 792 et seq., 803 et seq. 27. 1 Chamber layne, Evidence, 877.
25. Infra, 808 et seq.
383 KNOWLEDGE; SPECIAL. 212
state is limited only by the bounds of human knowledge and facts of which the
human brain is capable of forming a concept. Obviously, it is not limited to
any particular profession.-' 8 The entire list of human activities physical, busi-
ness and social are embraced within this range. Any fact not one of particular
knowledge which the witness knows and the jury presumably do not, and which
the court, in the exercise of its administrative powers, feels would be helpful to
the tribunal, may be received,- 1 * provided that the fact is relevant ''"' and that
the witness limit himself to giving the fact within his knowledge and does not
undertake to state the bearing of the fact upon the truth of a proposition in
issue. 31
Ao Moral Requirement. "No requirement that the trade or calling to which
the fact relates should be beneficial to society or even moral in itself has been
imposed. The gambler may show the jury how a novice can be cheated by
tricks at cards :12 or how to play a gambling game. :!;>>
Witnesses not " Experts." No reason is perceived for speaking of such
witnesses as to matters of special knowledge as " experts v ::4 though the use of
the term is frequent. 35 ISo customary a use is, indeed, made natural by the
fact that only from among those possessed of technical facts relating to a par-
ticular business, etc., can the * k expert," as a rule, be selected. Any such wit-
ness, moreover, upon an ordinary subpoena, may be required to give his judg-
ment as an expert. 30 Conversely, those competent to testify as experts may
fairly be expected to have in mind the facts c< minonly known to those versed
in that specialized pursuit. 37 Frequently such facts form part of the major
premise of his judgment when testifying 'hypothetic-ally.'"*
383. [Technical or Scientific Facts] ; Properties of Matter.- 1 -' While the
more familiar properties of matter are commonly known, the moiv obscure may
be stated to the tribunal by any one adequately versed in an art in which
such properties are known 4l) or who otherwise, for any reason knows the fact. 41
28. McFadden v. Murdock, 15 Wkly, Rep. 36. Larimer County v. Lee, 3 Colo. App.
107!) (1867). 177, 32 Pac. 841 (1803).
29. Kmerson v. Lowell Gaslight Co., 6 Allen 37. Emerson v. Lowell Gaslight Co., Allen
(Mass.) 146.. 83 Am. Dec. 621 (1863): Fol- (Mass.) 146, 148, 83 Am. Dec. 621 (1863).
som v. Concord, etc., R. Co., 68 N. H. 454, 38 " One who is an expert may not only give
Atl. 209 (1896). opinions, but may state general fact> which
30. \Vynn v. Central Park, etc., R. Co., 14 are the result of scientific knowledge or pro-
Is. Y Suppl. 172 (1891). fessional skill." Emerson v. Lowell Gaslight
31. Lake Erie, etc., R. Co. v. Mulcahy. 16 Co.. 6 Allen (Mass.) 146. 148, 83 Am. Dec.
Ohio Cir. Ct 204, 9 Ohio Cir. Dec. 82 (1898). 621 ( 1863).
32. Hall v. State, 6 Baxt. (Tenn.) 522 38. .Anderson v. Illinois Cent. R. Co., 109
(1873). Iowa 524, 80 X. \V. 561 (1899).
33. Xuckolls v. Com., 32 Gratt. (Va.) 884 39. 1 Chamberlayne. Evidence. S7S, 879.
(1879) ("keno"). 40. Shufeldt v. Searing. 59 111. App. 341
34. State v. Melvern, 32 Wash. 7, 72 Pac. (1895) (explosion of dust): St. Louis Gas-
489 .(1903). light Co. v. Philadelphia American F. Ins.
35. Shields v. State, 149 Tnd. 395. 49 N. E. Co., 33 Mo. App. 348 (1889) (ga.s).
351 (1897) ; Cottrill v. Myrick, 12 Me. 222 41. Standard Oil Co. v. Tierney, 96 Ky. 89,
(1835).
213
TECHNICAL FACTS.
384,385
State of the Art. The " state of the art" at any given time in his trade
or calling, 42 and the facts which naturally flow from it, as, for example,
whether a certain device has novelty, 43 may be stated by the specially experi-
enced witness. Nor is such a statement deemed objectionable by reason of
the fact that it covers the precise proposition in issue. 44 This is apt to be of
special prominence in patent causes. 45
384. [Technical or Scientific Facts] ; Business Affairs. 46 While many of
the more familiar facts relating to business matters are of sufficient notoriety
to be covered by common knowledge, a multitude of them are constantly pre-
senting themselves as to which the evidence of an experienced witness is re-
ceived and still others, of a more technical nature, in proof of which such evi-
dence is required. These considerations apply to the duties of clerical assist-
ants, 47 mercantile marks, 48 to the elements of profit and loss, 49 to business cus-
toms, 50 and technical terms used in business. 51
385. [Technical or Scientific Facts] ; Various Matters. 52 Testimony of this
nature may be given by persons having special knowledge or skill in building, 53
chemistry, 54 ecclesiastical matters, 55 in engineering questions whether civil, 56
electrict/' 7 hydraulic 5S or mining, 59 in farming, 60 stock-raising 61 or insurance
whether tire, 02 life, 1 ' 3 or marine. 64
27 S. W. t>83, 16 Ky. L. Rep. 327 (1894)
(properties of illuminating oil).
42. \\ inan-s v. New York, etc., R. Co., 21
How. (U. S.) 88, 100, 16 L. ed. (1858).
43. Haley v. Flaecus, 193 Pa. St. 521, 44
Atl. 506 (1899).
44. Tillotson v. Ramsay. 51 Vt. 309
(1878).
45. Burton v. Burton Stock-Car Co., 171
Mass. 437, 50 X. E. 1029 (1898).
46. 1 Chamherlayne. Evidence. 880-882.
47. Pepper v Planters Nat. Bank, 5 Ky. L.
Rep. 85 (1883) (cashier).
48. Downing v. State, 66 Ga. 110 (1880)
(kerosene) .
49. Sexton v. Lamb, 27 Kan. 426 (1882)
(handling ice) .
50. (leorgia. Horan v. Strachan, 86 Ga.
408, 12 S. E. 678, 22 Am. St. Rep 471 ( 1890 I :
Tliayer v. Smoky Hollow Coal Co.. 121 Iowa
121, 96 X. W. 71S ( 1903) ; Gorham v. Gross.
125 Mass. 232, 28 Am. Rep. 234 (1878):
Hart v. Brooklyn. 52 N. V. Suppl. 113. 31
App Div. 517 (1898).
51. Webb v. Mears. 4.1 Pa. St. 222 (1863) :
Evans v. Commercial Mut. Ins. Co.. 6 R. I.
47 (1859); Butte. etc.. Consol. Min. Co. v.
Montana Ore Purchasing Co., 121 Fed. 524.
58 C. C. A. 0' r (1903).
Experience in the business rather than
formal inclusion in it is the test. In seeking,
for example, to testify as to the meaning of
terms used in the wholesale grocery business
a retail grocer of large transactions may be
better qualified as a witness than a whole-
sale grocer doing a smaller business. Xord-
linger v. U. S., 115 Fed. 828 (1902).
52. 1 Chamberlayne, Evidence, 883-893.
53. Caven v. Bodwell Granite Co., 97 Me.
381, 54 Atl. 851 (1903) (coal stage); Rock-
land First Cong. Church v. Holyoke Mut. F.
Ins. Co., 158 Mass. 475, 33 X. E. 572, 35
Am. St. Rep. 508, 19 L. R. A. 587 (1893)
( removing paint ) .
54. Birmingham Xat. Bank v. Bradley, 116
Ala. 142, 23 So. 53 (1896); People v. Dole.
122 Cal. 486. 55 Pac. 581. 68 Am. St. Rep.
50 (1898) : Otey v. Hoyt, 47 X. C. 70 (1854)
(acid applied to ink).
55. Bird v. St. Mark's Church. 62 Iowa
567, 11 X. W. 747 (1883): Sussex Peerage
Case. 11 Cl. & F. 85, R Jur. -793. 8 Eng.
Reprint 1034 (1844) (Roman Catholic).
56. Union Pac. R. Co. v. Clopper, 131 U. S.
appendix cxcii. 26 L. ed. 243 (1881) (bridge
and abutments).
57. Houston, etc., R. Co. v. Hopson (Tex.
Civ. App. 1902) 67 S. W. 458; Excelsior
386 KNOWLEDGE; SPECIAL.
386. [Technical or Scientific Facts] ; Interstate or Foreign Law. 65 The ex-
istence of written or unwritten Jaw in a foreign country 6(! or sister state of the
American Union t;7 is a fact and, in the absence of statutory' regulation, is to
be proved, as other facts are -proved, by the statement of one who knows it.
In any event, the answer of the witness must, in order to be relevant, cover
specifically the question raised, 08 and, where the evidence is in conflict, it has
been held, that the court must examine text-books and other authorities and
decide the point for itself.'"'
The written law of a foreign country 70 or sister state 71 stands in the same
position. Anyone who, in the opinion of the court, knows what the foreign
law is, may state it ; identifying, if convenient to the judge, the volume in
which the written law is contained, and pointing out, if desired, the written law
itself. A conflict of views exists as to whether the oral evidence of a qualified
witness is still competent in jurisdictions which prescribe that the written
law of a sister state may be proved by official printed copies of its laws and
decisions. In the view of certain courts, the witness' oral statement may still
be received. 72 Other courts have adopted a different administrative prin-
ciple and hold that the means of proof provided by the statute constitute the
" best evidence " i.e., the original or primary grade of evidence and must be
produced or a sufficient reason given for its absence. 73 Where the printed book
or written document is received affirmatively proof of its authentic nature must
be offered " 4 as called for by the laws of the forum. 75 The interpretation given
Electric Co. v. Sweet, 57 N. J. L. 224, 30 Atl. 64. Leitch v. Atlantic Mut. Ins. Co., 66 N.
553 (1894). Y. 100 (1876) ; Hawes v. New England Mut.
58. Ohio, etc., R. Co. v. Xuetzel, 143 111. 46, Mar. In**. Co., 11 Fed. Cas. No. 6,241, 2 Curt.
32 X. E. 529 (reversing 43 111. App. 108] 229 (1855).
(1892.) 65. 1 Chamberlayne, Evidence. 894-900.
59. Clark v. Babcock, 23 Mich. 164 (1871) 66. Temple v. Pasquotank County, 111 N.
(salt wells). C. 36, 15 S. E. 886 (1892) (Cuba).
60. Thresher v. Gregory (Cal. 1895), 42 67. Chattanooga, etc., R. Co. v. Jackson,
Pac. 421; Krippner v. Biebl, 28 Minn. 139, 86 Ga. 676, 13 S. E. 109 (1890) : Barrowa v.
9 N. W. 671 (1881) ; Wells v. Eastman, 61 Downs, 9 R. I. 446, 11 Am. Rep. 283 (1870)
X. H. 507 (1881); Ferguson v. Hubbell, 26 (New York).
Hun (N. Y.) 250 (1882). 68. Clardy v. Wilson, 24 Tex. Civ. App.
61. Dunham v. Rix, 86 Iowa 300, 53 N. W. 196, 58 S. W 7 . 52 (1900).
252 (1892) ; Folsom v. Concord, etc., R. Co., 69. Rice v. Gunn, 4 Ont. 579 (1884).
68 N. H. 454, 38 Atl. 209 (1896) : New York, 70. Short v. Kingsmill. 7 U. C. Q. B. 350
etc., R. Co. v. Estill, 147 U. S. 591, 612, 13 (1850).
S. Ct. 444, 37 L. ed. 292 (1893). 71. People v. McQuaid, 85 Mich. 123, 48 N.
62. Traders' Ins. Co. v. Catlin, 163 111. W. 161 (1891).
256, 45 N. E. 255. 35 L. R. A. 595 (1896) : 72. Brady v. Palmer, 19 Ohio Cir. Ct. 687,
Cornish v. Farm Buildings F. Ins. Co., 74 N. 10 Ohio Cir. Dec. 27 (1899).
\. 295 [affirming 10 Hun 466] (1878). See 73. Johnson v. Hesser, 61 Neb. 631, 85 N.
also Pepper v. Planters' Nat. Bank, 5 Ky. L. W. 894 ( 1901 ) .
Rep. 85 (1883). 74. Mexican Nat. R. Co. v. Ware (Tex.
63. Shover v. Myrick, 4 Ind. App. 7, 30 Civ. App. 1900), 60 S. W. 343.
N. E. 207 (1891) ; Fry v. New York Provi- 75. Mexican Nat. R. Co. v. Ware (Tex. Civ.
dent Sav Assur. Soc. (Tenn. Ch. App. App. 1900), 60 S. W. 343.
1896), 3;- . \V. 116.
TECHNICAL FACTS. 387
to the law of the foreign country, 70 state, 77 or territory, by its tribunals is an
integral and essential part of the law itself and should be stated by the witness.
The standard of administrative requirement prevailing in many jurisdictions
of the American Union regarding the qualifications for testifying as to foreign
law is much lower than that prevailing in England.
The practicing attorney of the foreign county or sister state 78 or one who
has so practiced 79 for a reasonable time, is deemed competent to testify as a
skilled witness on the subject. Attorneys 80 practicing in a sister state or for-
eign country, 81 and other persons deemed by the judge to be sufficiently quali-
fied s2 to do so may state the existence and effect of an unwritten law in their
respective jurisdictions, all other witnesses being rejected. 8 "
It is not, however, necessary that the witness should be a lawyer. 84 All
that is required is what the presiding judge regards as a sufficiently intelligent
and thorough acquaintance with the foreign law ; 85 the connection through
which the knowledge may have been acquired being regarded as a matter of
comparative indifference.
The fact that the question is one of law naturally places it, in many points
of administration, within the hands of the presiding judge, familiar with the
decisions of questions of domestic law. His finding is not absolutely con-
trolled by the testimony of the witness ; even when uncontradicted. Thus,
the most unequivocal testimony of a skilled witness as to the construction
given to the foreign law, cannot control the court's understanding of the mean-
ing of the written law and the plain decisions of the foreign court. 86 In other
words, the presiding judge may examine for himself the documents which the
skilled witness refers to as a correct statement of the foreign law, " not as evi-
dence per se but as part of the testimony of the witness." 87
387. [Technical or Scientific Facts] ; Maritime Affairs. 88 The sea has also
76. Barrows v. Downs, 9 R. I. 446, 11 82. " In proof of the laws of a foreign coun-
Am Rep. 283 (1870). try, the testimony of any person, whether a
77. Crafts v. Clark, 38 Iowa 237 (1874) professed lawyer or not, who appears to the
(Pennsylvania); Jenne v. Harrisville, 63 X. court to be well informed on the point, is
H. 405 (1885); Title Guarantee, etc., Co. v. competent." Hall v. Costello, 48 X. H. 176,
Trenton Potteries Co., 56 X. J. Eq. 441, 38 179, 2 Am. Rep. 207 (1868).
Atl. 422 (1897) (Xew York): Bellinger v. 83. Phelps v. Town, 14 Mich. 374 (1866)
Gallagher. 163 Pa. St. 245, 29 Atl. 751. 43 (banker); City Sav. Bank v. Kensington
Am. St. Rep. 791 (1894) (Maryland). Land Co. (Tenn. Ch. App. 1896), 37 S. W.
78. Baltimore Consol. Real Estate, etc., 1037.
Co. v. Cashow, 41 Md. 59 (1874): (law of 84. Hall v. Costello, 48 X. H. 176, 2 Am.
New York). Rep. 207 (1868).
79. Union Cent. L. Ins. Co. v Caldwell, 68 85. State v. Behrman, 114 X. C. 797, 19
Ark. 505, 58 S. W. 355 (1900) (law of S. E. 220, 25 L. R. A. 449 (1894).
Ohio). 86. China, etc., Bank v. Morse. 168 X. Y.
80. Baltimore Consol. Real Estate, etc., Co. 458, 61 X. E. 774, 85 Am. St. Rep. 676, 56
v. Caahow, 41 Md. 59 (1874) : Hall v. Costello, L. R. A. 139 (1901).
48 X. H. 176, 2 Am. Rep. 207 (1868). 87. Concha v. Murrieta. 40 Ch. D. 453. 60
81. Concha v. Murrieta. 40 Ch. D. 543, 60 L. T. Rep. X. S. 798 (1889).
L. T. Rep (X. S.) 798 (1889). 88. 1 Chamberlayne, Evidence, 901.
388
KNOWLEDGE; SPECIAL.
216
its technical side. Men of nautical experience or training may state the spe-
cial facts known to those who " follow the sea/' Principal among these are
the influences of the natural forces of winds and waves ' Vt) upon vessels !l " or,
to put the same idea in different words, what a vessel will do under given con-
ditions 01 may be proved in this way. In like manner an experienced witness
may state the duties of the captain, 1 ' 2 officers l ' 3 and crew of a vessel under a
given set of circumstances and the general usages of navigation u4 are impor-
tant matters of nautical knowledge.
388. [Technical and Scientific Facts] ; Mechanic Arts. 05 Ofi Manufactur-
ing and the mechanic arts present a favorite field for the employment of evi-
dence regarding technical facts, which, when relevant may be stated by those
qualified either through experience 9T or technical training 98 to do so. .The
knowledge of the witness must be affirmatively shown or reasonably assumed
to be as specific as is the fact which the testimony covers. Mere general knowl-
edge and experience in a particular branch of manufacturing is not sufficient
unless it may be assumed to qualify the witness as to the precise question which
is asked him." For a still stronger reason, absence of even this general experi-
ence disqualifies the witness. 1
These considerations apply to the dangers of manufacturing, 2 the proper
management of the business, 3 the strength of mechanical appliances, 4 the use
89. Eastern Transp. Line v. Hope, 95 U. S.
297, 299, 24 L. ed. 477 (1877). See infra,
718, 811.
90. Western Ins. Co. v. Tobin, 32 Ohio St.
.77 (1877) (certain type of vessel will leak).
91. Price v. Hartshorn, 44 X. Y. 94, 4 Am.
Rep. 645 (1870); Walsh v. Washington Mar.
Ins. Co., 32 X. Y. 427 (1865) : Western Ins.
Co. v. Tobin, 32 Ohio St. 77 (1877) ; Folkes
v. Chadd, 3 Dougl. 157, 26 E. C. L. Ill
(1782).
92. Sills v. Brown, 9 C. & P. 601, 38 E. C.
L. 351 (1840).
93. Malton v. Xesbit, 1 C. & P. 70, 12 E. C.
L. 51 (1824).
94. The Alaska, 33 Fed. 107 (1887).
95. 1 Chamberlayne, Evidence, 902-908.
96. tiupra, 358, 362, infra, 719, 811.
97. Dyas v. Southern Pac. Co., 140 Cal.
296, 73 Pac. 972 (1903) (engineer); Pull-
man's Palace-Car Co. v. Harkins, 55 Fed.
932, 5 C. C. A. 326 (1893) (machinist).
98. Bradley v. District of Columbia, 20
App. Cas. (D. C.) 169 (1902).
Familiarity with a physical effect of nat-
ural laws will not, of itself, qualify the per-
son to speak as to the operation of these
laws. A fireman, for instance, is not qualified
to state the natural process by which a fire
creates its own current of air. State v.
Watson, 65 Me. 74 (1876). Xor is a mill-
wright competent to testify as to the cause
of anchor ice in a particular stream. Woods
v. Allen, 18 N. H. 28 (1845).
99. Fraim v. Xational F. Ins. Co., 170 Pa.
St. 151, 32 Atl. 613, 50 Am. St. Rep. 753
(1895) (gasoline in silver plating).
1. Merchants Wharf-Boat Assoc. v. Wood
(Miss. 1887), 3 So. 248.
2. Judson v. Giant Powder Co., 107 Cal.
549, 40 Pac. 1020, 48 Am. St. Rep. 146, 29
L. R. A. 718 (1895) (powder mill); Plant-
ers' Mut. Ins. Co. v. Rowland, 66 Md. 236, 7
Atl. 257 (1886) (roller mills).
3. Leslie v. Granite R. Co., 172 Mass. 468,
52 X. E. 542 (1899) (derricks for stone);
Nut/mann v. Germania L. Ins. Co., 78 Minn.
504. SI X. W. 518 (1900) (hydraulic ele-
vator) ; Scheider v. American Bridge Co., 78
X. Y. App. Div. 163, 79 X. Y. Suppl. 634
(1903) (guying derricks) ; Fritz v. Western
Union Tel. Co., 25 Utah 263, 71 Pac. 209
(1902) (telephone wires); Parlett v. Dunn,
102 Va. 459, 46 S. E. 467 (1904) (erecting
hoisting gear ) .
4. Louisville, etc., R. Co. v. Berkey, 136 Ind.
217 TECHNICAL FACTS.
of firearms, 5 the value, weight or strength of materials, 6 and other matters
connected peculiarly with mechanics.
389. [Technical or Scientific Facts]; Mining; Natural History. 7 The art
of mining presents a number of facts not covered by the scope of common
knowledge and miners of experience may testify to such facts as the details
of mine construction s and their operation. 9 So one who has made a special
study of natural history may state to a tribunal facts of special knowledge as
to the habits of animals or their characteristics. 10
390. [Technical or Scientific Facts]; Professional Facts; Medicine. 11 The
presiding judge will receive as a witness to facts of special knowledge relating
to the medical profession any person who has been proved to his satisfaction
or whom he can reasonably assume to know the fact as to which he proposes to
testify with such fullness and accuracy as to make his evidence helpful to the
jury. As in other matters presenting administrative questions regarding the
adequacy of the knowledge of a witness, the qualification required is only such
as is commensurate with the testimony which is offered. Were the question
asked a medical practitioner one which involved a wide experience and mature
judgment the court might well insist upon receiving testimony of a professional
witness who might be assumed to possess these qualities. But certain profes-
sional facts, obtainable in their entirety by reading may be equally well known,
or even better remembered, by a young doctor just graduated from the medical
school than by an older and more experienced practitioner. 12 But nurses, 13
undertakers 14 and other nonscientific and nonprofessional witnesses, will, as a
rule, not be received merely by virtue of their occupation, though, in such case,
as in that of any other witness, proof of special and adequate knowledge and
experience, quoad the fact to be elicited will render them competent witnesses.
Those duly qualified may testify concerning the state of medical knowl-
181, 35 N. E. 3 (1893) (coupling pin) ; Lau Ohio St. 608, 56 X. E. 457, 76 Am. St. Rep.
v. Fletcher, 104 Mich. 295, 62 X. \V. 357 437 (1899) (blasting); Beaman v. Martha
(1895) (saw). Washington Min. Co., 23 Utah 139, 63 Pac.
5. Long v. Travellers' Ins. Co.. 113 Iowa 631 (1900) (" skip " out of an incline shaft ).
259, 85 X. \V. 24 (1901) (effect of gas gen- 10. Smith v. People, 46 111. App. 130
eration by discharge of a gun). See also (1891); Cottrill v. Myrick. 12 Me. 222
Dugan v. Com., 102 Ky. 241, 43 S. W 418, (1835); Lewis v. Hartford Dredging Co.. 68
19 Ky. L. Rep. 1273 ( 1897 i . Conn 221, 35 Atl. 1127 (1896) (seeding oys-
6. McFaul v. Madera Flume, etc., Co., 134 ters) ; State v. Mclntosh, 109 Iowa 209, 80
Cal. 313, 66 Pac. 308 (1901) (wrought and X. \V. 349 (1899) /wolf).
cast iron) ; Caven v. Bodwell Granite Co., 97 11. 1 Chamherlayne, Evidence, 913-918.
Me. 381, 54 Atl. 851 (1903) f wood and iron ). 12. Tullis v. Kidd, 12 Ala. 648 (1847);
7. 1 Chamberlayne, Evidence. 009-912. Murphy v Murphy, 65 S. \Y. 165, 23 Ky. L.
8. Grant v. Varney. 21 Colo 329. 40 Pac Kep. 1460 (1901) (effect of alcoholism on
771 ( 1895); McN'amara v Logan. 100 Ala. the human will).
187, 14 So. 175 ( ISU.ri (safe distance between 13. State v. Cook, 17 Kan. 392 (1877).
wall and car). .14. Osborne v. Troup, 60 Conn. 485, 23 Atl.
9. Ohio, etc., Torpedo Co. v. Fishburn, 61 157 (1891).
391
KNOWLEDGE; SPECIAL.
218
edge, 15 tjae symptoms of disease, 10 or insanity, 17 their proper treatment 18 and
the facts of surgery either human 19 or veterinary. 20
391. [Technical or Scientific Facts]; Kailroad Facts; Rules. 21 22 The great
prominence of the railroad in the social and industrial life of the modern
community and in the practical work of the courts not only make a number of
facts relating to such a carrier matter of common or judicial knowledge 23 but
constantly call for proof of cognate facts more or less technical in their nature,
as to which special knowledge is required. Facts of the latter class may be
furnished by those who are found by the court to have had adequate technical
training or practical experience in regard to the fact in question. 24 A person
not in the railroad business may state a fact relating to railroad matters ;
provided it be shown that he knows it,- 7 ' and not merely that he has had suf-
licient opportunities for observation to enable him to ascertain it. 26
15. State v. Knight, 43 Me. 11 (1857)
(blood stains) ; Johnson v. Winston, (Neb.
1903), 94 N. W. 607; State v. Miller, 9
Houst. (Del.) 564, 32 Atl. 137 (1892) (hu-
man blood); 'State v. White, 76 Mo. 96
(1882) (undergoing child birth while stand-
ing) ; People v. Osmond, 138 N. Y. 80, 33
X. E. 739 -(1893).
16. State v. Meyers, 99 Mo. 107, 121, 12
S. W. 516 (1889).
Conversely, the witness may testify as to
what certain medical phenomena indicate as
to disease; its cause, etc., assuming the infer-
ence is a necessary and unreasoned one.
Louisville, etc., R. Co. v. Falvey, 104 Tnd.
409, 3 N. E. 389, 4 N. E. 908 (1885) ; Kelly
v. Erie Tel. etc., Co., 34 Minn. 321, 25 X. W.
706 (1885) ; Dilleber v. Home L. Tns. Co., 87
X. Y. 79 (1881) : State v. Wilcox, 132 N. C.
1120, 44 S. E. 625 (1903) (no Avater in stom-
ach ) .
17. State v. Reddick, 7 Kan. 143 (1871) ;
State v. Meyers, 1)9 Mo. 107, 121, 12 S. W. 516
(1889); Williams v. State (Fla. 1903), 34
So. 279; State v. Reddick, 7 Kan. 143 (1871) ;
State v. Meyers, 99 Mo. 107. 121, 12 S. W.
516 (1889) ;' People v. Goldsworthy, 130 Cal.
COO, 62 Pac. 1074 (1900) (portable aluminum
boiler) .
18. State v. Meyers. 99 Mo. 107, 121, 12
S. W. 516 (1889) ; Bonart v. Lee (Tex. Civ.
App. 1898), 46 S. W. 906 (''medical treat-
ment") ; Hartung v. People, 4 Park. Cr. (N.
Y. ) 319 (1859) (cause of inflammation dis-
covered on post mortem examination) :.Baldi
v. Metropolitan Ins. Co., 18 Pa. Super. Ct.
599 (1902).
19. Johnson v. Winston (Neb. 1903), 94
X. W. 607 ; Crites v. XBAV Richmond, 98 Wis.
55, 73 N. W. 322 ( 1897 ) ; Kelly v. U. S., 27
Fed. 616 (1885). Infra, 722.
In states which permit it, the evidence of
technical facts may be elicited on cross exami-
nation. Rowell v. Lowell, 11 Gray (Mass.)
420 (1858); Kelly v. U. S., 27 Fed. 616
(1885); Powers v. Mitchell. 77 Me. 361
(1885) (concussion of the spine).
20. Grayson v. Lynch, 163 U. S. 468, 16 S.
Ct. 1064, 41 L. ed. 230 (1896); Pearson v.
Zehr, 138 111. 48, 29 N. E. 854, 32 Am. St.
Rep. 113 (1891).
A physician, though he has never acted as
a veterinary surgeon regarding it may state
the symptoms of a given disease. State v.
Sheets. 89 N. C. 543 (1883).
21. 1 Chamberlayne, Evidence, 919-929.
22. Supra, 359, 362, infra, 731 et seq ,
814 et seq.
23. Kupra, 345 et seq., 362.
Skilled witnesses are not required to state
such facts. For example, the community
knows how a cattle guard should be con-
structed. New York, etc., R. C'o. v. Zum-
baugh, 12 Ind. App. 272, 39 N. E. 1058
(18)4): Swartout v. New York Cent., etc.,
R. Co., 7 Hun ( N'. Y.) 571 (1876).
24. Qualifications must be affirmatively
shown. Tnless this is done, the witness may
be rejected. Born v. Philadelphia, etc., R.
Co., 198 Pa. St. 409, 48 Atl. 263 (1901).
25. Missouri Pac. R. Co. v. Mac-key, 33 Kan.
298, 6 Pac. 291 (1885) ; Chesapeake, etc., R.
Co. v. Stephens, 15 Ky. L. Rep. 815 (1894) ;
Detroit, etc., R. Co. v. Van Steinhurg, 17
Mich. 99 (1868) (mail clerk); Robertson v.
\\ahash. etc., R. Co., 84 Mo. T19 (1884).
26. Manhattan, etc., R. Co. v. Stewart, 30
Kan. 226, 2 Pac. 151 (1883); Mammerberg
210
TECHNICAL FACTS.
391
Evidence of this character may be offered of the duties of 'officers or em-
ployees, 27 the operation of the road, 28 freight' 29 and passenger 30 transporta-
tion, the possibilities and probabilities of railroads, 31 and facts concerning the
roadbed and equipment. 32 So facts as to the construction, equipment and
operation of street railways, 33 the duties of their officers and employees 34 and
the possibilities of street railways : '"' may be shown in the same way. The
rules of the company may be put in evidence to show the proper standard of
care/
86
v. Metropolitan St. R. Co., 62 Mo. App. 563
(1895).
27. Galveston, etc., R. Co. v. Brown (Tex.
Civ. App. 1900), 59 S. W. 930; Culver v. Ala-
bama Midland R. Co., 108 Ala. 330, 18 So.
827 (1895) (proper position) ; Quinlan v. Chi-
cago, etc., R. Co., 113 Iowa 89, 84 N. W. 960
(1901).
28. Birmingham, etc., Ry. Co. v. Harris, 98
Ala. 326, 13 So. 377 (1893); Kerns v. Chi-
cago, etc., R. Co., 94 Iowa 121, 62 N. W. 692
(1895) (pilot bar); Price v. Richmond, etc.,
R. Co., 38 S. C. 199, 17 S. E. 732 (1892)
(make up train) ; Walker v. Lake Shore, etc.,
R. Co.. 104 Mich. 606, 62 N. W. 1032 (1895)
(usinsr lantern) ; Louisville, etc., R. Co. v.
Reagan, 96 Tenn. 128, 33 S. W. 105 (1895)
(uncoupling) .
29. Price v. Richmond, etc., R. Co., 38 S. C.
199, 17 S. E. 732 (1892) ; Vicksburg, etc., R.
Co. v. Stocking (Miss. 1892), 13 So. 469;
Conway v. Fitzgerald, 70 Vt. 103, 39 Atl. 634
(1897) (lumber).
30. Union Pac. R. Co. v. Novak, 61 Fed.
573. 9 C. C. A. 629 (1894) ; Louisville, etc.,
R. Co. v. Banks, 132 Ala. 471, 31 So. 573
(1901).
31. Chicago, etc., R. Co. v. Kreig, 22 Ind.
App 3<3, 53 X. E. 1033 (1899) (spark);
Whitsett v. Chicago, etc., R. Co., 67 Iowa 150,
25 N". W. 104 ( 1885) ; Frace v. New York, etc.,
R. Co.. 68 Hun 325, 22 N. Y. Suppl. 958
(1893).
Ohio. Bellefontaine. etc., R. Co. v. Bailey,
11 Ohio St. 33:3 (1860) (prevent accident).
Conway v. Fitzgerald, 70 Vt. 103, 30 Atl.
634 (1897) ; Davidson v. St. Paul, etc., R. Co.,
34 Minn. 51, 24 N. W. 324 (1885) (throw
sparks) ; .Tamieson v. New York. etc.. R. Co..
162 N. Y. 630, 57 N. E. 1113 (1900) (spark
arrester door open).
32. Kerns v. Chicago, etc.. R. Co., 94 Iowa
121, 62 N. W. 692 (1895); Walker v. Lake
Shore, etc., R. Co., 104 Mich. 606, 62 X. W.
1032 (1895) ( roadmaster i -. Kelly v. Southern
Minnesota R. Co.. 28 Minn 98, 9 X. W. 588
(1881) ; State v. Toledo R.. etc., Co., 24 Ohio
Cir. Ct. 321 (1903) (side track) ; Ft. Worth,
etc., R. Co. v. Wilson, 3 Tex. Civ. App. 583,
24 S. W. 686 (1893) (good construction);
Baltimore, etc., R. Co. v. Elliott, 9 App. Cas.
(D. C.) 341 (1896) (draw head): McDonald
v. Michigan Cent. R. Co., 108 Mich. 7, 65 X.
W. 597 (1895) (cross-bar).
33. Supra, 362, infra, 732, 815; North
Kankakee St. Ry. Co. v. Blatchford, 81 111.
App. 609 (1898) (use of fenders); Chicago
City R. Co. v. McLaughlin, 146 111. 353, 34 N.
E. 796 (1893) ; Geist v. Detroit City R. Co.,
91 Mich. 446, 51 N W. 1112 (1892)'
34. Czezewzka v. Benton-Bellefontaine R.
Co., 121 Mo. 201, 25 S. W. 911 (1894).
35. Chicago City R. Co. v. McLaughlin, 146
111. 353, 34 N. E. 796 (1893) ; Geist v. De-
troit City R. Co., 91 Mich. 446, 51 N. W. 1112
(1892) ; Watson v. Minneapolis St. R. Co., 53
Minn. 551, 55 X. W. 742 (1893).
36. Rules of a railway company as to the
operation of its trains are some evidence when
promulgated for the safety of the public of
the proper care and precaution ..aich should
be used. Deister v. Atchison T. & S. F. R. Co.,
99 Kan. 525, 172 Pac. 282, L. R. A. 1017
C 784 (1917). A rule of a common carrier
forbidding passengers from going on the steps
is admissible to show that a conductor was
not negligent in allowing a passenger to stand
on the platform where he did not know that
he was there, as the rule shows that he had
no reason to look for him. Renaud v. Xew
\ork, Xew Haven & Hartford R. Co.. 210
Mass. 553, 97 X. E. 98. 38 L. R. A. ( X. S.)
689 (19121. In an action for negligence the
plaintiff may not introduce evidence of the
rules of the defendant company as showing
the proper standard of care to be used by the
employees. Such rules should not be used
to show an admission, as they may simply
show that the company tries to maintain a
high standard of care unless they show a
general practice of those in that business.
Virginia Railway & Power Co. v. Godsey, 117
Va. 167, 83 S. E. 1072.
CHAPTER XI.
BURL) EX OF PROOF.
Preliminaries to a trial by jury, 39:>.
Burden of proof has a double meaning, 30:;.
Position of burden of proof; who wuld fail 'if no further evidence were intro-
duced, 394.
never shifts, 395.
common law pleading, 396.
equity pleading, 397.
statutory pleading, 398.
actions in rem, etc., 399.
criminal cases: burden on prosecution, 400.
affirmative defences, 401.
392. Preliminaries to a Trial by Jury. That any forensic contest what-
ever between contending parties should be conducted to a definite and speedy
conclusion, at least three things, among others, should be predetermined. (1)
What facts must be proved by any litigant to insure his success. This is en-
tirely a matter of substantive law. 1 (2) Tpon whom lies the duty of proving
the truth of a particular proposition or of introducing evidence as to the ex-
istence of any given individual fact. .This falls under the head of Burden
of Proof, the topic under consideration. 2 (3) What happens should the per-
son upon whom this duty rests fail to discharge it. ' This is determined by
procedure at a subsequent stage, with which the law of evidence has no imme-
diate concern. 3
393. Burden of Proof has a Double Meaning. As commonly employed,
and few phrases are utilized more constantly, " burden of proof " is am-
biguous in meaning. It represents one or the other of two entirely distinct
things; 4 (1) the burden or necessity of establishing a case, of making good
1. 2 Chamberlayne, Evidence, 930, 031, Buswell v. Fuller, 80 Me. 600 (1807); Mor-
032, 033. gan v. Morse, 13 Gray (Mass.) 1/50 (1859).
2. 2 Chamberlayne, Evidence, 932. 035. An increasing clearness in statement
3. 2 Chamberlayne, Evidence, 032, 935a. seems observable in the decisions. See Ruth
4. 2 Chamb., Ev., 936 and cases cited in v. Crone, 10 Cal. App. 770. 103 Pac. 060
note 3. Contra: State v. Thornton, 10 S. D. (1900) ; Cody v. Market St. Ry. Co.. 148 Cal.
349, 73 N. W. 106. 90, 82 Pac. 667 (1905); Alabama & V. Ry.
Not always is this done. Certain courts Co. v. Groome, 97 Miss. 201. 52 So. 703
have taken the proper distinctions with great (1010) ; Foss v. McRae, 105 Me. 140, 73 Atl.
clearness. Scott v. Wood, 81 Cal. 398 (1889) ; 827 (1909) ; Dorrell v. Sparks, 142 Mo. App.
220
221 POSITION OF BURDEN. 394, 395
against all opposition the truth of a proposition is issue or, (2) the burden or
duty of going forward and producing evidence to make a prima facie case in
his own favor or to meet, minimize and counteract such a case when estab-
lished against him. 5 This has led to much confusion of thought. 5 A very
slight change, in the single word, " proof " to " evidence " when the phrase
is used in its secondary meaning, suffices to eliminate the difficulty. 7
394. Position of Burden of Proof; Who Would Fail if no Further Evidence
Were Introduced. The position of the burden of establishing has been lo-
catecl in different ways by different authorities ; though it is fairly obvious
at times that the statement relates rather to the position of the burden of
evidence than of that of establishing. Thus, for example, it has been said
that the burden is on him who would lose his case if no further evidence were
produced. 8 It is certainly true that at the beginning of any trial at law the
burden of proof and the burden of evidence rest on the same person. 9 Here,
therefore, the test applies. It applies equally where the actor 1() is the losing
party at the end of the trial ; for the two burdens are again together. At
other stages of the trial the test is workable with regard to the burden of evi-
dence. Jt is not necessarily applicable to the burden of proof, properly so-
called; except where the party not having the burden of establishing, i.e.,
the non-actor, has destroyed the actor's prima facie case. It scarcely need be
said that the burden of proof cannot be on both parties at the same time. 11
395. [Position of Burden of Proof] ; Never Shifts. That the burden of
460, 127 S. W. 1D3 (1910): Toube v. Rubin- (1900); Herndon v. Louisville Nat. Banking
Blankfort Co., 63 Misc. Rep. (X. Y.) 298, Co. (Ky. 1910), 124 S. W. 835; John Turl'a
11(5 X. Y. Supp. 673 (100!)) Sons, Inc., v. Williams Eng. & Con. Co., 121
5. This last mentioned duty is spoken of in N. Y. Supp. 478 (1910) ; Hauser v. Western
Chamberlayne's treatise and in this digest as Union Telegraph Co., 150 X. C. 557, 64 S. E.
the "burden of evidence,'' as it should more 503 (1909) : 2 Chamb., Ev., 937 and cases
properly be called. The phrase " burden of cited. Occasionally, this test of the posi-
proof " is restricted to its original and pri- tion of the burden of proof has been adopted
mary meaning of the burden of establishing a by statute. Chaplin, etc., Turnpike Co. v.
cae* Xelson Co., 25 Ky. L. Rep. 1154, 77 S. W.
6. See Borton v. Blin, 23 Vt. 151 (1851). 377 (1903).
It has been proposed that the use of the ob- 9. Veiths v. Hagge, 8 Iowa 163, 192 (1859) ;
jectionable phrase be abandoned Thayer. Reagan v. El Paso & X. E. Ry. Co., 15 X. M.
Prelim. Treat, 384; Abrath v. Xorth East- 270, 106 Pac. 376 (1910).
ern R. Co., 11 (}. B. D. 440, 47 J. P. 602. 52 10. The term "actor" is used to designate
L. J. Q. B. 620 (1883). 2 Cham., Ev., 034. the party on whom rests the burden of estab-
7. "Proof" ambiguous. For a discussion lishing burden of proof in its correct and
of this question and the divergent views which primary meaning. By " non-actor " or reus
the civil law procedure and its modern sue- is designated the party on whom the burden
cessors of equity and code pleading took as of establishing does not rest: though, of
compared with the common law. of the nature course, the burden of evidence may and fre-
of a trial, see 2 Chamb.. Ev., 936, note 7. quently does.
8. Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 11. State v. Rosenthal, 123 Wis. 442, 102
664 (1904). See also, Mayer v. C. P. Lesh X. W. 49 (1905).
Paper Co., 45 Ind. App. 250, 89 X. E. 894
396 BURDEX OF PROOF. 222
proof, properly so-called, never shifts, in civil causes, seems established by
the great weight of authority; when correctly interpreted, iii any instance. 12
The same rule is equally applicable and controlling in criminal cases. 1 " On a
criminal jjroceeding, the burden of proof never leaves the prosecution. The
issue has been fixed once for all by the pleadings, and the rules of pleading do
not permit it to be altered during the progress of a trial on those pleadings. 14
So far as the party having the burden of proof is concerned, two results obvi-
ously follow from the rule. (1 ) The two burdens are upon the same person at
the beginning of the trial; (2) if the actor fails to maintain his case, .they
are united at the end of it. 15 At other stages of the trial, the burden of evi-
dence follows automatically the logical necessities of the situation. The bur-
den of proof is voluntarily assumed by one or other of the parties, once for all.
and cannot be displaced except upon the formation of a new issue. It re-
mains persistent through all the fluctuations of the burden of evidence. The
position of the burden of evidence, however, at any time, is determined by
answering the question as to who would lose if no further evidence were intro-
duced. 10 The confusion, and consequent error, lies in speaking of this burden
of evidence as the " burden of proof.'" 17
396. [Position of Burden of Proof] ; Common Law Pleading. Under
common-law pleading, procedure in assigning the burden of proof to one of
the respective parties, adopts as its final and determinative guide, the condi-
tion of the issues formed by the pleadings. Whichever of the parties has
12. Williams v. Casebeer, 126 Cal. 77, 58 13. Boykin v. People, 22 Colo. 496, 45 Pac.
Pac. 380 (1889); Baxter v. Camp. 71 Conn. 419 (1896); Daoey v. People. 116 111. 555, 6
245, 41 Atl. 803, 71 Am. St. Rep. 109, 42 X. E. 165 (1886); Trogdon v. State, 133 1ml
L. R. A. 514 (1898) ; Foss v. McRae, 105 Me. 1, 32 N. E. 725 (1892) : State v. Conway. 56
140, 73 Atl. 827 (1909) ; Carroll v. Boston Kan. 682, 44 Pac. 627 (1896); State v. Har-
Elevated Ry. Co., 200 Mass. 527, 86 N. E. delein, 169 Mo. 579, 70 S. W. 130 (1902);
793 (1909): Aulls v. Young, 98 Mich. 231 People v. Downs, 123 N. Y. 558, 23 X. E.
(1893); Vertress v. Gage County, 75 Neb. 988 (1890): Agnew v. U S., lf,5 U. S. 17 S.
332, 102 X. W. 242 (1905): Heineman v. Ct. 235 (1897); 2 Chamh.. Ev., 939 and
Heard, 02 X. Y. 448 (1875): 2 Chamb., Ev.. cases cited.
938 and cases cited. The burden of proof 14. 2 Chamb., Ev., 939 and cases cited:
is not shifted even by the failure of a party Wright v. Wright, 139 Mass. 177 (1885).
in court to take the stand in his own behalf, 15. 2 Chamb., Ev.. 940.
if it originally rested upon the other party. 16. Scott v. Wood. 81 Cal. 398. 22 Pac. 871
Meyer v. Minsky. 128 App Div. (X. Y.) 589, (1889); Fornes v. Wright. 91 Iowa 392, 59
112 X. V Snpp. 860 (1908). Xor docs the X. W. 51 (1894): Porter v. Still. 63 Miss,
non-actor assume the burden of proof merely 357 (1885) : Raines v. Merrill Trust v'o., 56
by introducing evidence tending to break down X. J. L. 312, 28 Atl. "96 (1803): Baulec v.
the actor's case. Wylie v. Marinofskv. 201 Xew York, etc., R. Co.. 59 X. Y. 3.~>6. 17 Am.
Mass. f>83, 88 X. E. 448 (1909). The burden Rep. 325 (1874); Union Pac. R. Co. v. Mc-
of proof does not shift in a case involving Donald. 152 U. S. 262. 14 S. Ct. 619, 38 L.
fraud but remains on him who claims fraud. ed. 434 (1894); 2 Chamb., Ev., 940 and
though the duty of going forward with the cases cited.
evidence may shift. Boardman v. Lorentzen, 17. 2 Chamb.. Ev.. 940. See Discussion
155 Wis. 566, 145 X. W. 750, 52 L. R. A. of Simile of the Scales, in connection with
(X. S.) 476 (1914). trials at law, 2 Chamb.. Ev., 941.
2-23
POSITION OF BURDEN.
the affirmative of the issue as determined by the pleadings, has the burden of
proof, 18 to establish his contention by the legally required preponderance of
the evidence. 19 This burden necessarily includes the fact that all conditions
precedent to the right claimed have been performed. 20
For example in actions for negligence the burden rests on the plaintiff to
prove all facts necessary to show negligence 21 but in most jurisdictions the
burden is on the defendant to prove that the plaintiff was guilty .of contribu-
tory negligence. 22 All the necessary elements in an action for breach of con-
tract must likewise be proved by the plaintiff. 23
Burden on Plaintiff. Where the defendant traverses, or denies one or
more material allegations 24 of the plaintiff's declaration, either in an action
of tort, 25 or contract, 20 or concerning land, 27 the burden of proof is on the
plaintiff ; - s even where the traverse is an argumentative one, in the form
18. English v. Porter, 109 111. 285 (1884) .
McCollister v Yard, 90 Iowa 621, 57 X. W.
447 (1894); Heineman v. Heard, 62 X. Y.
448 (1875); Klunk v. Hocking Valley Ry.
Co, 74 Ohio St. 125, 77 X. E. 752 (1906);
Connor v Green Pond, etc., R. Co., 23 S. C.
42, ,lssj.V) -. 2 Chamb., Ev., 942, 943 and
cases cited.
19. Chicago, etc., R Co. v. Lambert, 119
111 255, 10 X. E 219 (1887) ; Oaks v. Harri-
son, 24 Iowa 179 (1868).
20. Sext v Geise. SO Ga. 698, 6 S. E. 174
(1888) ; Home L. Assoc v. Randall, 30 Can.
Sup. Ct. 97 (1899). But see Thayer v. Con-
nor, 5 Allen (Mass) 25 (1862); Coffin v.
Grand Rapids FTvdraulic Co, 136 X. Y 655,
32 X. Y 1076 (1893). Burden of proof
where it lies, see note. Bender ed., 11 X. Y. 9,
121. Burden to show ultra vires, see note,
Bender ed., 143 X. Y. 632. Of bona fides of
purchase, see note, Bender ed., 153 X. Y. 76.
Burden to show bona fides in purchasing note,
see note. Bender ed.. 123 X Y. 207. Burden
of proof to show bona fides in holder of fraud-
ulent note, see note. Bender ed., 119 X Y.
372. Burden of proof upon proposing will for
probate, see note, Bender ed., 11 X. Y. 9. 121.
21. One who had the burden of proof to
show the cause of ice formed near a railroad
track cannot go to the jury by showing that it
was possible that the ice was formed from
water cast there by one of defendant's engines
when there is an equal possibility that it was
'.ast there by other individuals. Eisentracrer
v Great NTorthern R. Co , 178 Towa 713. 160 X.
\V. 311, L. R. A. 1917 B 1245 ( 1916) . Burden
to prove cause of accident, see note. Bender
ed , IS Nf. Y. 534. Burden to prove negli-
gence, see note, Bender ed., 47 X T . V. 282.
Burden of proof in action by servant to re-
cover for personal injuries, see note, Bender
ed., 145 X'. Y. 409. Burden of proof of neg-
ligence and contributory negligence, see note,
Bender's ed., 113 X. Y" 386.
22. Comvay v. Salt Lake & Ogden R. Co.,
47 Utah 510, 155 Pac. 339, L. R. A. 1916 D.
1109 (1916). Right to infer absence of con-
tributory negligence, burden of proving it, see
note, Bender ed.,
23. One who seeks to prove breach of war-
ranty in a heating apparatus has the burden
of showing that it was operated under proper
conditions. Waterman-Waterbury Co. v.
School Dist., 182 Mich 498. 148 X. YV. 673,
L. R. A. 1015 B 626 f 1914) . Burden of proof
in insurance cases, see note. Bender ed., 149
N. Y. 735.
24. Ma rootle v. Sheridan, 91 X. Y. Supp.
744 (1905) ; John Ainsfield Co. v. Rasmussen,
30 Utah 453. 85 Pac. 1002 (1906) ; 2 Chamb.,
Ev.. 944 and cases cited.
25. Hudson v Miller, 97 Til. App. 74
(1901); Sheley.v. Brooks, 114 Mich. 11. 72
X W. 37 (1897) : Taylor v. Guest, 58 X. Y.
262 (1874); Griswold v. Gebhie. 126 Pa. St.
353. 17 Atl. 673, 12 Am. St. Rep. 878 (18S9) :
2 Chamb., Ev., 944 and cases cited.
26. Florida Ry. Co. v. Thomas, 55 Fla. 287,
45 So 720 (1908) ; Hark v. Hoffman. 128 111.
App. 422 ( 1 906 ) : Laubheimer v. Xaill. 88
Md, 174, 40 Atl. 888 (1898) : Ford v. Stand-
ard Oil Co., 32 App. Div. (X. Y.) 596. 53
X. Y. Supp. 48 (1898).
27. Clifton v. Town of Weston, 54 W. Va.
250, 46 S. E 360 (1003).
28. Western R. Co. v. Williamson, 114 Ala.
396 BURDEX OF PROOF. 224
of an affirmative plea, 29 though a party is not called to explain or disprove
his opponent's allegations.' 50 If the form of the defendant's pleading is nega-
tive, as where he files a general issue, the burden of proof is upon the
plaintiff even should the defendant introduce an affirmative defense under
this negative allegation/' 1
JU j [)tication. Should the defendant set up an affirmative defense, the
plaintiff may compel his opponent to assume the burden of proof by denying
or traversing the new matter set up by the defendant. But he may adopt a
different course by alleging on his own behalf, new facts in confession and
avoidance. Should this affirmative replication be traversed by the defendant,
the burden of proof is on the plaintiff. 32
Burden on Defendant. Where the defendant does not traverse, but sets up
affirmative matter, as by pleading in abatement/' 3 by claiming -' 4 or setting up
new matter in avoidance of the plaintiff's action, 35 the burden of proof is on
him; 30 although the plaintiff answers by anticipation in his declaration the
facts which he assumes will be set up by the defendant, 37 or make^ an argu-
mentative traverse in his replication. 38 Xor, is it important, in this connec-
tion, should the plaintiff take issue on this new matter, by denying or traversing
it, that such affirmative defense involves proof of negative propositions. 39
Should the plaintiff's replication set up an affirmative defense which f lie de-
fendant meets with a rejoinder by way of confession and avoidance the burden
of proof is upon the defendant. 4 " and it is said not to be material that the
plaintiff undertakes to establish, by evidence, the truth of his replication.
131, 21 So. 827 (1806) ; Starratt v. Mullen, Gilmer v. Grand Rapids, 16 Fed. 70S <1883) ;
148 Mass. 570. 20 N". E. 178, 2 L. R. A. 697 2 Chamb., Ev., 946 and cases cited.
(1889) ; Pares v. St. Louis, etc., R. Co. (Tex. 35. Bliley v. Wheeler. 5 Colo. App 287, 38
Civ. App. i, 57 S. \V. 301. Pac. 603 (1894) ; Swift v. Ratliff. 74 Ind. 426
29. Wilder v. Cowles, 100 Mass. 487 M868K ( lSl | ; Sayles v. Quinn, 196 Mass. 492. 82 X.
30. Schallman v. Royal ins. Co., 94 111. E. 71:5 (1907): Truax v. Heartt, 13. I Mich.
App. 364 (1901). 150, 97 X. W. 394 (1903): Coffin v. Grand
31. Adams v. Pease. 113 Til App. 356 Rapids Hydraulic Co., 136 X. Y. 635. 32 X. E.
(1904). 1076, affirming 61 NT. Y. Super. Ct. 51, 18 X T .
32. Chicago & A. Ry. Co. v. Jennings. 114 Y. Supp. 782 (1892); Home Ben. Assoc. v.
111. App. 022 (1904) ; Meeh v. Missouri Pac. Sargent, 142 U. S. 691, 12 S. Ct. 332, 35 L.
R. Co.. 61 Kan. 630, 60 Pac. 319 (1900): ed. 1160 (1892); 2 Chamb., Ev., 946 and
Blunt v Barrett, 54 \. Y. Super. Ct, 548 cases cited.
(1*7) : 2 Chamb., Ev.. 945 and cases cited. 36. Pickup v. Thames Ins. Co., 3 Q. B. D.
The burden of showing that an automobile in 594 (1875).
which plaintiff was riding was not registered 37. Henry v. Ward. 49 Xeb. 392, 68 X". W.
is upon the defendant. Conroy v. Mather, 217 5l8 (1896); Hill v. Allison, 51 Tex. 390
Mass. 91, 104 X. E. 487. 52 L. R. A. (X. S.) (1879).
801 (1914). 38. Fox v. Hilliard, 35 Miss. 160 (1858);
33. Seidschlag v. Town of Antioch, 109 111. Wilson v. Hodges, 2 East 312 (1802 i.
App. 291 (1904)-. Boyoe v. Augusta Camp, 39. Craig v. Proctor, 6 R. T. 547 (I860).
No. 7429, M. W. A., 14 Okl. 642, 78 Pac. 322 40. Miller v. Sollitt, 131 111. App. 196
(19041. (1907), and it is said not to lie material that
34. Jewett v. Davis, fi X' H. 518 (1834): the plaintiff undertakes to sta>lish, by evi-
Robertson v. Ephraim, 18 Tex. 118 (1856); dence, the truth of his replication.
225
POSITION OF BUBDEN.
396
What Defenses are Affirmative is a matter of some technicality and a natural
divergence of ruling exists in different jurisdictions. " Undoubtedly many mat-
ters which, if true, would show that the plaintiff never had a cause of action,
or even that he never had a valid contract, must be pleaded and proved
by the defendant; for instance, infancy, coverture, or, probably, illegality." 41
in general, however, such affirmative defenses agree by implication of law
that the cause of action relied upon by the plaintiff once existed as claimed, but
assert that it has been lost or modified by subsequent events. 4 - The non-
actor or reus, by simply relying on a defense affirmative in form which, in
reality, merely traverses the affirmative case of the actor does not necessarily
shift the burden of proof. Thus, for example, where a defendant relies upon
lack of consideration for a contract, this does not shift the burden of proving
the existence of a consideration as essential to a valid contract. 43
Neyatiie Allegations. It is the affirmative of the issue, not the affirmative
in point of form of the proposition submitted to investigation, which deter-
mines the position of the burden of proof. 44 The affirmative of the issue may
require, under the rules of substantive law, proof of negative allegations, 45 by
the party having the burden of proof, whether he be plaintiff 46 or defendant. 47
41. Starratt v. Muilen, supra. See also
Pendleton v. Cline, 85 (ill. 142, 24 Pac. 659
(1890) ; 2 Chamb., Ev., 947 and cases cited.
42. Moore v. Barber Asphalt Paving Co.,
IIS Ala. 5H3, 23 So. 798 (IS97); Chandler
v. Smith, 70 111. App. 658 (1S97); Swift v.
Ratliff, supra; Truax v. Heartt. supra.
Knoche v. Whiteman, S6 Mo. App 568
(1900) ; Hood v. Smiley. 5 Wyo. 70, 36 Pac.
856 (1894) : 2 Chamb., Ev., 947 and cases
cited. Light v. Woodstock, etc., R. Co., 13
U. C. Q B. 216 (1857).
43. Chaplin & 15. Turnpike Road Co. v. Xel-
son County, 25 Ky L. Rep. 1154, 77 S. W.
37 / ; Crownhishield v. Crowninshield, 2 Gray
(Mass) 524, 531 (1854). See Roberts v.
Padgett, 82 Ark. 331, 101 S. W. 753 (1907).
44. Small v. Clewley. 62 Me. 155 (1873):
Harris v. Harris, 154 Pa. St. 501 (1893):
Jones v. Simpson, 116 U. S. 609 : Clark v.
hills, 67 Tex. 141 (18S6): 2 Chamb., Ev..
949 and cases cited. It is said, for example,
that "he who affirms must prove." Marigny
v. Union Bank, 12 Rob. (La.i 2S3 (1844):
Crowninshield v. Crowninshield. supra: prae-
xumitur pro negante, Union Xat. Bank v.
Maldenwick, 45 111. 375 C1S67): that no one
t- obliged to prove a negative, Carroll v. Ma-
ne, 28 Ala. 521 (1856) : State v. Melton. 8
.o. 417 (1844); State v. Morrison, 14 X. C.
. '.0 (1831); or that the party who has the
" affirmative of any proposition " has the bur-
den of proof. People v. Schryver, 42 N. Y. 1,
1 Am. Rep. 480 (1870) ; Simon v. Krimko, 123
N. Y. Supp. 697 (1910). This is. in reality,
a misapprehension. Where the defendant in
a civil action for wrongful death admits the
killing but puts in evidence sufficient to jus-
tify it as in self-defense, it has been recently
held that the burden is on the plaintiff to
show by independent testimony that the kill-
ing was wrongful. This decision seems to be
contrary to the weight of authority Welch
v. Creech, 88 Wash. 429. 153 Pac. 355, L. R.
A. 1918A 353.
45. Douglass v. Willard. 129 Cal. 38, 61
Pac. 572 (1900) ; Cleveland. O., etc., Ry. Co.
v. Moore, 170 Ind. 328, 82 X. E. 52, 84 N. E.
540 (1908) ; Phipps v. Mahon. 141 Mass. 471,
5 X. E. 835 (1886) ; Schlesinger v. Hexter, 34
N. Y. Super. Ct, 499 I 1872) ; Pusey v. Wright.
31 Pa. St. 3S7 ( 1858) : 2 Chamb.. Ev., 049,
note 6, and cases cited.
46. Baird v Brown, 28 La. Ann. 842
(1876): Eastman v Gould. 63 X. H. 89
(1884): 2 Chamb., Ev.. 949, note 7, and
cases cited
47. Atlantic Trust Co. v. Crystal Water Co.,
72 X. Y. App. Div. 539, 76 X. Y. Supp. 647
(1902): Western Union Tel. Co. v. Jackson,
19 Tex Civ App. 273. 4fi S W. 279 (1898) ;
2 Chamb., Ev., 949, note 8, and cases cited.
397,398 BURDEN OF PKOOF. 226
The substantive law may require- that the existence of conditions antecedent
to liability should be negatived ; 4S and, so far as can reasonably be demanded
in any particular case, 41 * the party having the burden of proof may fairly be
expected to establish the truth of such negative allegations, even where special
knowledge is possessed by his antagonist.
397. [Position of Burden of Proof] ; Equity Pleading. In equity, as at
law, the burden of proof is on the party who has the affirmative of the issue
raised by the pleadings. 50 There being no constructive admission in equity,
as distinguished from common law pleading, a plaintiff or complainant has
the burden of proof as to all material facts not expressly admitted by the
answer. 51 Under the general rule the defendant has the affirmative of the
issue as to any plea set up by him, 52 or any affirmative defences relied upon in
the answer, and, by consequence, as to these has the burden of proof.
398. [Position of Burden of Proof] ; Statutory Pleading Under code
pleading the plaintiff, or complainant, states such facts as, in his opinion, en-
title him to relief. The burden of proof is on him as to all allegations not
specifically admitted by the defendant in his answer. 53 Such allegations are
regarded as denied, 54 though the denial be merely argumentative: 55 as where
it sets up a different price, 50 or relies upon another contract. 57 Should the
distinct admissions made by the defendant's answer suffice to establish the
plaintiff's prima facie case, 58 the burden of proof is upon the defendant as to
any matter relied upon in avoidance of the effect of these admissions. 59
48. Bufford v. Eaney. 122 Ala. 565, 26 So. (1867). It is an established rule of evidence
120 (1898) ; Atlantic Trust Co. v. Crystal in equity, that where an answer which is put
Water Co., supra; 2 Chamb., Ev., 949, note in issue, admits a fact, and insists upon a dis-
9, and cases cited. tinct fact by way of avoidance, the fact ad-
49. Delachaise v. Maginnis, 44 La. Ann. mitted is established, but the fact insisted
1043, 11 So. 715 (1892); Thayer v. Viles, upon must be proved: otherwise the admis-
23 Vt. 494 (1851). sion stands as if the fact in avoidance had
Administrative Details. In many juris- not been averred. Id.
dictions, the right to " open and close the 53. Chamberlain Banking House v. Wool-
case itself" rest upon the party having the sey, 60 Neb. 516, 83 X W. 729 (1900).
burden of proof. New Ellerslie Fishing Club 54. Carver v. Eads, 65 Ala. 190 (1880);
v. Stewart, 29 Ky. L. Rep. 414, 93 S. W. 598 Woodson Mach. Co. v. Morse, 47 Kan. 429, 28
(1906). Pac. 152 (1891).
50. Pusey v. .Wright, 31 Pa. St. 387 55. Homire v. Rodgers, 74 Iowa 395, 37 N.
(1859) ; Pritchard v. Pritchard, 2 Tenn. Cr. W. 572 (1888).
App. 294 (1902): Cochran v. Blount, 161 U. 56. Connolly v. Clark. 20 Misc. (N. Y.)
S. 350. 16 S. Ct. 454, 40 L. ed. 729 (1895). 415. 45 N. Y. Supp. 1042 (1897).
But see Huston v. Harrison. 168 Pa. St. 136, 57. Mott v Baxter, 20 Colo 418. 68 Pac.
31 Atl. 987 (1895). 220 (1920) : Phipps v. Mahon. 141 Mass. 471,
51. Pusey v. Wright, supra: Clifton v. Wes- 5 N. E. 835 (1886) : Consumers' Brewing Co.
ton, 54 W. Va., 250. 46 S. E. 360 (1903); 2 v. Lipot. 21 Misc. (X Y ) 532. 47 N. Y.
Chamb.. Ev.. 951, note 3, and cases cited. Supp. 718 (1897) : 2 Chamb, Ev.. 952. note
52. Mcfihee Irr. Ditch Co v Hudson. 85 5, and cases cited.
Tex. 587. 22 S. W. 398 (1893) : Clements v. 58. 409. infra: 2 Chamb.. Ev.. 992.
Voore. (1 Wall. (T. S.) 299. 315. 18 L. ed. 786 59. Hunter v. Sanders, 113 Ga. 140, 38 S.
-21 POSITION OF BURDEX. 39S
Where the plaintiff files a replication, or the law files one for him, he has
the burden of proof as to any new matter which is set up." This looseness of
pleading frequently causes a change of legal situation which strongly resembles
a shifting of the burden of proof, which is said to take place. This, in reality,
is impossible. 61 A party, being at liberty, at the trial, to bring out in his
evidence what, under a more scientific system of pleading, would be matter of
an affirmative plea, although his position is still, on the record, merely that of
denying the allegations of his antagonist, the burden of proof, being upon him
as to this affirmative plea, this burden is said to have shifted. " The simple
fact is, that under this mode of pleading, as compared with a strictly accurate
mode, the time fixed for setting up the affirmative case is different ; instead of
requiring that it be disclosed before the pleadings are ended, it is allowed to
be made known during the progress of the trial." 62 Some slight color of
principle is given this process by the fact, above referred to, 63 that many de-
fences which, under common law pleading were affirmative, e.g., infancy,
coverture and the like, really show that the other party never had a cause of
action. 04 Of these the defendant in a trial conducted under statutory plead-
ing may properly avail himself, though his only statement is a general denial
of the plaintiff's case. 65
Counterclaim or Set-Off. The filing of a counterclaim or set-off does not
affect the burden of proof in the main action. 66 It merely amounts to a cross-
action, in which the burden of proof is as it would have been if that suit had
been brought as an independent proceeding. As to all allegations in his
declaration, or affirmative replication which are denied, the plaintiff in set-off
or counterclaim has this burden of proof. 67 including the allegation of dam-
ages. 08 As to any affirmative plea, either in answer. 69 or rejoinder, the de-
E. 406 (1901) ; Chapman v. Meiling, 147 111. of pleading may be found in the defence of
App. 411 (1909); Pierce v. Stolhand, 141 contributory negligence, Indianapolis, etc., R.
\Vis. 286, 124 X. \V. 259 (1910) ; 2 Chamb., R. v. Horst, 93 U. S. 291 (1876) : which the
Ev., 952, note 7, and cases cited. common law frequently required should be
60. Gatlin v. Vaut, 6 Ind. Terr. 254. 91 S. taken by affirmative plea. Stone v. Hunt. 94
W. 38 (1901). Mo. 475 (1887).
61. et se<j ; 2 Chamb.. Ev.. 938 et seq.; 66. Gile v. Sawtelle, 94 Me. 46. 46 Atl. 786
Tarbox v. Eastern Steamboat Co.. 50 Me. 339 (1900).
(1S62); Brown v. King. 5 Mete (Mass.) 173 67. Wetherell v Hollister, 73 Conn. 622,
(1842). 48 Atl. 826 (1901): Holmes v. McKennan,
62. 2 Chamb., Ev., 953: Thayer, Prelim. 120 111. App. 320 (1905) : Murphy v. Cooper.
Treat. Ev., 379 41 Mont. 72. 108 Pac. 576 (1910): Liberty
63. 396. note 41; 2 Chamb, Ev., 947. Wall Paper Co v. Stoner Wall Paper Mfg.
note 1. Co.. 178 X. Y. 210. 70 X. E. 501 (1904);
64. Starratt v. Mullen. 148 Mass. 570, 20 Davis-Colby Ore Roaster Co. v. Rogers. 191
X E. 178, 2 L. R. A 697 (1889). Pa. St. 229. 43 Atl 567 (1899): 2 Chamb..
65. " When a general denial is pleaded, all Ev , 954. n. 2. and cases cited
defences may be proved under the issues just 68. Pocono Spring Water Tee Co. v. Ameri-
formed, except a set-off or a counterclaim." can Ice Co.. 214 Pa 640. 64 Atl. 398 (1906).
AlcCloskey v Davis. 8 Tnd App. 190 (1893). 69. Rumbouah v. Southern Imp Co., 109
A further example of this anomalous method N. C. 703, 14 S. E. 314 (1891)
299,400 BURDEN OF PEOOF. 22S
fendant in set-off or counterclaim has the burden of proof. The same rule
applies when cross bills in equity or cross complaints at the law are tried to-
gether. Each of the contending parties has the same burden as if the suit, as
to which the inquiry is made, had presented the sole issue for trial."'
399. [Position of Burden of Proof] ; Actions in Rem, etc. Where there are
no common law pleadings, as where one intervenes in a pending proceeding as
claimant,' 1 the burden of proof is place..! by procedure or administration in
accordance with the natural rule upon the defendant, claimant or party seek-
ing affirmative action. tSo, where one institutes an action in rein, seeking
affirmative action in his own behalf: as for the probate of a will, 72 or seeks
relief in any other special proceeding as where the party appeals from an
order, 73 or sues to condemn land, 74 or to recover damages arising from the
exercise of the right of eminent domain, 75 the burden of proof is upon him.
So also, where a petitioner asks to be declared elected to an office. 70 An inter-
veiior who fails to support his claim by proof will be defeated. 77
400. [Position of Burden of Proof] ; Criminal Cases ; Burden on Prosecution.
The rules regulating the burden of proof in either of its dual senses, are the
Bame in criminal as in civil cases. Where no statutory regulation exists to
the contrary, 78 the burden of proof is upon the government to establish beyond
a reasonable doubt, 7 " every material allegation necessary to the existence of the
offence charged, s " including that alleging any specific intent necessary to con-
stitutes the offence,** 1 or any mental state, such as knowledge. 82 required by
70. Fit/herald v. Goff, 90 Tnd. 28 (1884) ; X. W 84 (1892) ; 2 Chamb., Ev., 956, n. 1,
Muir v. Kalama/oo Corset Co., 155 Mich. 441, and cases cited.
119 X. \V. 589, 15 Detroit Lejr N. 1074 79. Dorsey v. State, 110 Ga. 331, 35 S. E.
(1909). tiol (1900) ; Schintz v. People, 178 111. 320. 52
71. Eastmore v. Bunkley, 113 Ga. 637. 39 X. E. 903 (1899); State v. Scheve, 65 Neb.
S. E. 105 (1901): Miller v. Pryse. 20 Ky. L. *53, 93 X. W. 169. 59 L. R. A. 927 (1903);
Rep. 1544, 49 S. W. 776 (1899) : 2 Chamb., People v. Baker, 96 X. Y. 340 (1884) ; Agnew
Ev., 955, n 1, and cases cited. v. T. S., 165 U. S. 36, 17 S. Ct. 235 (1896) ;
72. Ware v. Ware. 8 Greenl. (Me.) 42 2 Chamb.. Ev., 956, n. 2. and cases cited.
(1831): Crowninshield v. Crowninshield. 2 80. Fitch v. People. 45 Colo. 298. 100 Pac.
Gray (Mass.) 524 (1854); 2 Chamb., Ev., 1132 (1909): Jones v. State. 113 Ga. 271,
955, n. 2, and cases cited. 38 S. E. 851 (1901); State v. Grimstead, 62
73. Lloyd v. Trimleston, 2 Molloy 81 Kan. 593. 64 Pac 49 (1901); People v.
(1829). Downs, 123 X. Y. 558. 25 X. E. 988 (1890) ;
74. Xeff v. Reed, 98 Tnd 341 (1884). Guatavenson v State, 10 Wyo. 300. 68 Pac.
75. Montgomery Southern R. Co v. Sayre, 1006 (1902) ; 2 Chamh., Ev., 950, n. 3, and
72 Ala. 443 (1882) : Williams v. Macon, etc., cases cited.
R. Co.. 94 Ga. 709. 21 S. E. 997 (1894). 81. Com. v. McKie. 1 Gray (Mass.) 61. 61
76. In re Stanstead Election Case, 20 Can. Am. Dec. 410 (1854): State v. Judd, 20
Supreme Ct 12 (1891). Mont. 420. 51 Pac. 1033 (1S9S): Jones v.
77. Campbell v J. I. Campbell Co., 117 La. State. 51 Ohio St. 331. 38 X. E. 79 (1894);
402. 41 So. 696 (1906). 2 Cliamb.. Ev.. 956. n 4. and capes rited.
78. Sanders v State, 94 Tnd. 147 (1S83) -. 82. Binklpy v State, 51 Tex. Cr. R. 54, 100
Ortwein v. Com., 76 Pa. St. 414. 18 Am Rep. S. W. 7SO (1907).
420 (1874); Revoir v. State. 8 Wis. 295, 52
229 POSITION OF BUKDEN. 400
substantive law to prove the criminal liability of the accused. 83 The truth of
all such allegations is' put in issue by the general negative plea of not
guilty. 84
Presumption of Innocence. The procedural rule of the burden of proof
upon the prosecution is stated in the reverse form, i.e., in terms of the de-
fendant's right to insist upon the more affirmative rule. Thus, "all persons
are presumed to be absolutely innocent of the crime charged against them, in
its entirety and in all its material parts, until the jury tinds to the contrary, on
proper instructions, based on competent and relevant testimony.'' s5
Corpus Delicti. The affirmative proof logically and therefore legally SG in-
volves, in a criminal case, two main propositions; (1) The crime charged
was committed; (2) It was committed by the accused. Proof that some one
has committed the offence charged, i.e., that the corpus delicti, the body of the
offence, or the offence itself, must be clearly established, 87 as a necessary pre-
liminary in order that the attention of the tribunal should be directed to the
second proposition, i.e., that the accused committed it. 88
Competency of Evidence. It is the duty of the state to show affirmatively
that its evidence is competent, that its witnesses are qualified by knowledge
and otherwise, to testify, that no privilege exists in the matter. The state
must show, if objection is made, that it is not valid. Tn case of documentary
evidence, it must show that it is admissible. Thus, a confession 89 must be
*
affirmatively shown to have been voluntary. 90
Negative Allegations. Where proof of the offence charged involves show-
ing negative allegations, the state's burden of proof may require, that so far as
reasonably capable of proof, these should be established by the prosecution.
And where the legislature or judiciary has established certain exceptional
states of fact under which the penalties prescribed by law do not attach, it is
the duty of the state to negative the existence of these both in allegation and
proof. 91 So where the observance of a particular procedural requirement,
e.g., corroboration, 92 is made a proviso upon the operation of a statute, the
burden is on the prosecution to show compliance with the condition.
Offence Not Outlawed, etc. The state is compelled of necessity to show
83. State v. Lax, 71 X. J. L. 386, 59 Atl. 87. Younkins v State. 2 Cold. (Tenn.) 219
18 (1904). (1865) ; 2 Chamb., Ev.. 95S.
84. Cooper v. State, 2 Qa. App. 730. 59 S. 88. I". S. v. Searcey, 26 Fed. 435 (1885).
E. 20 ( 1907) ; State v. Pressler, 16 Wyo. 214, 89. 2 Chamb., Ev., 959, 1472 et seq.
92 Pac. 806 (1907). Special pleas in bar are 90. Smith v. State, 74 Ark. 397. 85 S. W.
not, as a rule, required, and affirmative pleas 1123 M905i.
by way of confession and avoidance are but 91. Ferguson v. State, 1 Ga. App. 841, 58
seldom required. S. E. 57 (1907) ; 2 Chamb.. Ev., 960.
85. Cook v. State. 85 Miss. 738. 749. 38 So. 92. State v. Connor, 142 X. C. 700. 55 S. E.
110 (19051. See United States v Heike (N. 787 (1906). Certain distinctions are, how-
Y. 1910), 175 Fed. 852. 2 Chamb., Ev., ever, to be taken. See Richardson v. State,
957. 77 \rk. 321. 91 S. VY 758 (1905)-. State v.
86. 2 Chamb., Ev.. 385 et seq. Mills, 182 Mo. 370, 81 S. W. 867 (1940).
401 BURDEN OF PROOF. 230
that the alleged acts were done at a time when it was unlawful to do them, 93
i.e., after the passage of a statute prohibiting the doing of the acts in question, 94
before the finding of the indictment, 95 and also that the prosecution is not
barred by any general or special statute of limitation. 96
Sanity. Within this burden is that of showing that the act alleged was
committed by a person mentally responsible, in a legal sense ; 97 that is, that
the accused was sane at the time he did the act in question to an extent which
makes him amenable to its legal consequences. The defence of insanity, there-
fore, merely raises a question as to the position of the burden of evidence. 98 It
is not an affirmative defence. 99 Evidence with regard to it may be given
under a general plea of not guilty, 1 and should a reasonable doubt as to the
prisoner's sanity be found by the jury he is entitled to be adjudged not guilty
by reason of insanity. As in civil cases, 2 and actions in rem, e.g., proceedings
involving the probate of a will, 3 the presumption of law as to sanity 4 has no
effect upon the burden of proof ; 5 however strongly it may sustain or
" shift " the burden of evidence?
Venue. The government's proof must meet the requirements of place, as
well as those of time. The offence must be shown to have been committed in
the county alleged in the indictment, i.e., the proper venue must be estab-
lished. 7 Thus, on an indictment in the Federal courts it must be shown by
the state, if the offence was committed on land that the particular place was
within the jurisdiction of the United States. If on the high seas, the proof is
that it was committed 011 a vessel belonging to a citizen of the country. 8
401. [Position of Burden of Proof]; Affirmative Defences. The prosecu-
tion's burden of proof in criminal cases requires from it ultimate proof of
93. State v. Newton, 39 Wash. 491, 81 Pac. S.Baxter v. Abbot, 7 Gray (Mass.) 71
1002 (190.5). (1856).
94. Lawrenceville v. Crawford, 60 Ga. 162 4. , infra; 2 Chamb., Ev., 1055.
(1878). 5. Dacey v. People, 116 111. 555 (1886);
95. Com. v. Graves, 112 Mass. 282 (1873) ; People v. Garbutt, 17 Mich. 9 (1868) ; Broth-
State v. Hughes, 82 Mo. 86 (1884) ; 2 Chamb., erton v. People, 75 N. Y. 159 (1878).
Ev., 961, n. 3, and cases cited. 6. Com. v. Heath, 11 Gray (Mass.) 303
96. Askew v. State, 3 Ga App. 79, 59 S. E. (1858) ; 2 Chamb., Ev., 962, n. 9, and cases
311 f 190" ) ; State v. Schuerman, 70 Mo. App. cited. See also Davis v. L T . S., 160 V. S. 469,
518 (1897) ; State v. Carpenter, 74 X. C. 230 485 (1895).
(1876) ; 2 Chamb., Ev., 961. n. 4, and cases 7. Barnes v. State, 134 Ala. 36, 32 So. 670
cited. (1901); People v. Tarpey, 59 Cal. 371
97. State v. Crawford, 11 Kan. 32 (1873) ; (1881) ; Jones v. State. 113 Ga. 271, 38 S. E.
Fife v. Com., 29 Pa. 429 (1857); 2 Chamb., 851 (1901); Huston v. People, 53 111. App.
Ev., 962, n. 1. 501 (1893) : State v. Tosney, 26 Minn. 262, 3
98. 404: 2 Chamb., Ev., 974. X. W. 345 (1879); State v. Young, 99 Mo.
99. State v. Pressler. supra. 284, 12 S. W. 642 (1889); Larkin v. People,
1. State v. Speyer, 207 Mo. 540, 106 S. VV. 61 Barb. (X. Y.) 226; 2 Chamb., Ev., 963
505 (1907). and oases cited.
2. See Jones v. Granite State Fire Ins. Co., 8. I". S. v. Tmbert, 26 Fed. Gas. No. 15,438,
90 Me. 40, 37 Atl. 326 (1897). 4 Wash. 702 (1827).
231 POSITION OF BURDEN. 401
propositions which may be negative in form ; as the non-existence of justi-
fication, 9 mitigating circumstances 10 and the like. The burden of evidence,
however, is frequently transferred to the defendant, in respect to these matters,
whenever the government succeeds in establishing a prima facie case, 11 i.e.,
by proof beyond a reasonable doubt. Even in the case of an affirmative defence,
there is, however, no burden of proof upon the defendant in a criminal case.
" It is a prisoner's burden, the only burden ever put upon him by law, that of
satisfying the jury that there is a reasonable doubt of his guilt." 12
Insanity. In large part by reason of the confusion between burden of proof
and burden of evidence, a rule, entirely indefensible in point of principle, has.,
in several jurisdictions, been adopted to the effect that where the defendant
relies on the defence of insanity the burden of proof is on him to establish it
by a " fair preponderance of the evidence " 13 or " to the satisfaction of the
jury by a preponderance of the evidence."' 14 Until the preponderance of evi-
dence is furnished, the government's presumption of sanity 15 is said to be a
" full equivalent " of express proof of sanity. 16 The proposition actually an-
nounced is that insanity, in a criminal case, is an affirmative defence.
9. State v. Morphy, 33 Iowa 270, 11 Am. St. 317, 73 X. E. 218 (1005) : 2 Chamh., Ev.,
Kep. 122 (1877) ; State v. Hirsch, 45 Mo. 429 966, n. 1, and cases cited.
(1870). 14. Fults v. State, 50 Tex. Cr. R. 502, 98
10. \Vharton v. State, 73 Ala. 366 (1883); S. W. 1057 (1906). A closer approximation
Agnew v. 17. S., 165 U. S. 36, 17 S. Ct. 235, to the true rule is reached when the state-
41 L. ed. 624 (1896) ; 2 Chamb., Ev., 965, ment is made that the burden of proof is on
n. 2, and cases cited. the defendant in a criminal case to raise a
11. 409, infra; 2 Chamb., Ev., 992. reasonable doubt as to his sanity. Johnson
12. Com. v. York's Case, 9 Mete. (Mass.) v. State, 57 Fla. 18, 49 So. 40 (1909). See
93, 98 (1845). And see State v. Schweitzer, State v. Craig, 52 Wash. 66, 100 Pac. 167
57 Conn. 532 (1889), as to the proper rela- (1909), the state has not the burden of re-
tions l>etween the two burdens of '" proof " moving such doubt by a preponderance of evi-
and " evidence." dence.
13. People v. \Yillard. 150 Cal. 543, 89 Pac. 15. Infra. 404: 2 Chamb., Ev v 974.
124 (1907) : State v Porter. 213 Mo. 43. Ill 16. State v. Austin, supra. See 2 Chamb.,
S. W. 529 (1908) ; State v. Austin, 71 Ohio Ev., 966.
CHAPTER XII.
BURDEN OF EVIDENCE.
Burden of evidence, 402.
Position of burden of evidence, 403.
criminal cases, 404.
facts known to adverse party, 405.
negative facts, 406.
Scope of burden of evidence, 407.
quantum of proof required ; number of witnesses, 408.
prima facie case, 409.
special inertia of the Court; civil cases, 410.
documents, 411.
criminal cases, 412.
Effect of presumptions, 413.
g 402. Burden of Evidence The burden of evidence presents radical dif-
ferences both in quality and position from the burden of proof. In position,
the burden of proof is unchanging; once imposed, it remains. The burden
of evidence may "shift'' to any extent, alternating between the parties ac-
cording to the exigencies of the trial. The position of the burden of proof
is determined by the pleadings. That of the burden of evidence has no
necessary or invariable connection with them. 1 In quality, the burden of
proof is a forensic necessity. The burden of evidence is a logical necessity. 2
403. Position of Burden of Evidence. The incidence of the burden of
evidence at the beginning of the trial is upon the party having the burden of
proof, i.e., upon the actor, until he shall have established a prima facie case
in his favor as to the truth of every material allegation embraced in his affirma-
tive case. 3 As soon as the party having the burden of proof establishes these
facts the burden of evidence, so far as he is concerned, is discharged, 4 and is
1. 2 Chamb., Ev., 967. See Farmers' L. burden of evidence may establish his primn
& T. Co. v. Siefke, 144 N. Y. 354, 359. 39 farie case entirely by adducing evidence, or
N. E. 358 (1895). be may establish a prima farie inference or
2. 2 Chamb., Ev., 967, 908. and cases presumption of law, as it is called. 2 Chamb.,
cited. Ev., 969. 1035 et seq.: 1184 et seq.
3. Peck v. Sciville Mfjr. Co.. 43 Til. App. 4. Williams v. Casebeer, 126 Cal. 77, 53
360 ( 1891 ) : Sun L. Ins. Co. v. Sei?ler. 19 Ky Pac. 380 .'1809} : Turner v. Wells. 64 N. J.
L. Rep. 1227 (1897), 42 S. \V. 1137: Star- L. 269. 45 Atl. 041 (1900); Heineman v.
ratt v. Mullen, 148 Mass. 570. 20 X. E. 178, Heard, 02 X. V. 448 (1875) : 2 Chamb., Ev.,
2 L. R. A. 697 (1889) : 2 Chamb.. Ev.. 909. 969, n. 5, and cases cited.
n. 1, and cases cited. The party having the
232
233
POSITION OF Bt'KUEX.
transferred to his adversary, the reus or i .nactor, and remains with him so
long as the actor's original case continues to retain its prima facie quality.
The position of the burden of proof in the meantime stands in no way af-
fected. 6 The burden of evidence may, and frequently does, vibrate between
the parties; and is a necessary and usual incident of any contest to be
determined by the use of facts, as the establishment of a prima facie case
presents to a party the alternative of producing evidence to meet it or of
being defeated in the action. 7
404. [Position of Burden of Evidence] ; Criminal Cases. The burden of
proof, in point of principle, never rests in a criminal case anywhere save
upon the government. All the accused need do in any event, whether he 13
directly assailing the constituent facts of the government's case or setting up
new facts inconsistent with it, is to raise a reasonable doubt 8 While there
is no affirmative plea in criminal cases in the sense of a shifting of the
burden of prof, there is an affirmative defense under the general negative
traverse of not guilty which resembles an affirmative plea in so far as the
burden of evidence as to it is on the defendant, 9 the accused at the same time
being, of course, at liberty to use any facts favorable to his contention which
have developed during the proof of the government's original case. 10
5. Jones v. Ualvern Lumber Co. 58 Ark. an operation the surgeon has the burden of
proving that he used due care after evidence
is introduced that the sponge was left and he
does not meet this burden by showing that
the nurses reported to him that the sponges
had all been removed, as it may have been
his duty to count the sponges or investigate
personally, and there should be some evidence
showing why he did not or could not do this.
Davis v. Kerr, 239 Pa. 351. 86 Atl. 1007, 46
L. R. A. (X. S.) 611 (1913).
8. People v. Bushton, 80 Cal. 160, 22 Pac.
127, 549 (1889); State v. Beasley, 84 Iowa
83, 50 X W. 570 (1891); State v. Howell,
100 Mo. 628, 14 S. W. 4 (1890) ; People v.
125, 23 S W. 679 (1893) ; Whitney v. Mor-
row, 50 Wis. 197, 6 X. W. 494 (1880).
6. Phipps v Mahon, 141 Mass. 471, 5 N.
E 835 (1886); Caldwell v. Xew Jersey
Steamboat Co., 47 X. Y. 282 (1872) : Atkin-
son v. Goodrich Transp Co., 69 Wis. 5, 13,
31 X. W. 164 (1887); 2 Chamb , Ev , 969,
n. <, and cases cited. As to Difficulty of
Proof, see 2 Chamb., Ev., 970, and cases
cited.
7. Carroll v. Boston Elevated Ry. Co., 200
Mass. 527. 86 X. E. 793 (1909); Berger v.
St. Louis Storage & Commission Co.. 13f Mo.
App. 36, 116 S W. 444 (1909); Toube v.
Rubin-Blankfort Co, 63 Misc. 298, 116 X Y.
Supp 673 (1909) : 2 Chamb., Ev . 971, and
cases cited. In an action against a bailee to
recover for loss of goods when the loss is
established, the burden then rests on the de-
fendant to establish a defence, but when he
proves that the loss took place through fire,
robbery or theft or by any other means which
would seem to be unavoidable, the burden of
proving negligence then shifts to the plaintiff,
but on the whole case the burden of proving
the facts essential to recovery rests on the
plaintiff. Stone v. Case. 34 Okla. 5. 124 Pac.
960, 43 L. R. A. (X. S.) 116S (1912). In an
action for leaving a sponge in a patient after
Riordan, 117 X*. Y. 71, 22 X E. 455 (1889);
2 Chamb , Ev., 972, n. 2, and cases cited.
9. Rayburn v. State, 69 Ark. 177, 63 X".
W. 356 (1901) : State v. Schweitzer. 57 Conn.
532, 18 Atl. 787. 6 L. R. A. 125 (1889):
Pierce v. State. 53 Oa. 365 (1874) : Williams
v. People, 121 Til. 84, 11 X. E. 881 (1887):
State v. Wright, 134 Mo. 404, 35 S. W 7 . 1145
(1896) ; Com. v. Zelt. 138 Pa. St. 615. 21 Atl.
7, 11 L. R. A. 602 (189H : Agnew v. U. S..
165 L. S 36. 17 S. Ct. 235. 41 L. ed. 624
(1896) ; 2 Chamb.. Ev., 072, n. 3. and cases
cited.
10. Leslie v. State. 35 Fla 171, 17 So. 555
(1895) ; Dacey v. People. 116 111. 555, 6 N". E.
404 BURDEN OF EVIDENCE. 234
Alibi. Prominent among these defences is that of alibi. It is not an
affirmative defense as to which the defendant has assumed the burden of
proof. 11 In a majority of jurisdictions, the correct rule is adopted; that it
is a necessary part of the government's case to show, when disputed, that the
defendant was present at the scene of the doing of the alleged act at the time
when he is claimed to have done it. Consequently, it has been held that
while the burden is on the defendant to introduce evidence sufficient to raise
a reasonable doubt that the burden of proof still continues to be on the prose-
cution as to this necessary element of its case, and that, if a reasonable doubt is
left in the minds of the jury as to whether the accused actually was present
at the scene of the crime at the time when he must have been there in order to
have committed it, he is entitled to an acquittal. 12
Insanity. The same rule is to be applied in cases where the defence is
that the defendant is not responsible by reason of idiocy or insanity. The
burden of proof upon the state in a criminal case extends to establishing the
proposition that the defendant, at the time of committing the offense, was
not rendered irresponsible by reason of inability to recognize the nature and
consequences of his act ; otherwise stated, for legal purposes, that he is of
sound mind. 13 In other words, the burden of proof is on the government
to prove defendant's sanity beyond a reasonable doubt. 14
/ J 'resumption of Sanity. As experience shows that men in general possess
this degree of mental capacity, it will be inferred that the defendant in any
particular case was sane. 1 " Upon this, so-called " presumption of sanity " the
government may rest this particular portion of its prima facie case; and, if
on the whole case, whether the inferences are drawn from facts presented by
the government or from those submitted by the defendant, the latter succeeds
in creating a reasonable doubt, he should be acquitted. 16 But until a reason-
able doubt appears the burden of evidence is upon the accused to create one. 17
165 (1886) ; 2 Chamb., Ev., 972, n. 4, and Fla. 51 (1886) ; Klein v. People. 113 111. 596
cases cited. (1885) : State v. Fenlason. 78 Me. 495, 7 Atl.
11. Com. v. Choate, 105 Mass. 451 (1870) : 385 (1886) ; 2 Chamb., Ev., 973, notes 3
Briceland v. Com.. 74 Pa. 463 (1873); 2 and 4, and cases cited.
Chamb., Ev., 973 and cases cited. 13. A deaf and dumb defendant must be
12. McXamara v. People, 24 Colo. 61, 48 shown to have been sane. State v. Draper,
Pac. 541 (1897); Harrison v. State. 83 Ga. Houston Cr. Cas. (Del.) 291 (1868); 2
129, 9 S. E. 242 (1889); State v. Conway, Chamb., Ev., 974.
55 Kan. 323, 56 Kan. 582, 40 Pac 661 ( 1895) ; 14. State v. Crawford, 11 Kan. 32 (1873) ;
People v. Pichette, 111 Mich. 461. 69 N. VV. Com. v. Eddy. 7 Gray (Mass.) 583 (1856);
739 (1897); Sherlock v. State. 60 N. ,1. L. People v. Garbutt, 17 Mich. 9 (1868): State
31. 37 Atl. 435 (1*07) ; Walters v. State, 39 v. Jones, 50 N. H. 369. 400 (1871) : 2 Chamb.,
Ohio St. 215 (1883): Glover v. U S.. 147 Ev.. 974, notes 2 and 3.
Fed. 426. 77 C. C. A. 450 (1906) : 2 Chamb., 15. Sutton v. teadler, 3 C. B. N. S. 87
Ev., 973. n. 2. and cases cited. Other (1857); Baxter v. Abbot, 7 Gray (Mass.) 71
courts treat alibi as if it were an affirmative (1856) ; 2 Chamb., Ev., 974, n. 4. and cases
defense in a civil action on which the accused cited.
has the burden of proof. Bacon v. State, 22 16. Montag v. People, 141 111. 75, 30 N. E
235 POSITION OF BURDEN.
Continuance of Mental State. There is an inference from experience that
when a permanent type of insanity has been >hown to exist it will continue
until shown to have ceased. Where it is the claim of the government that the
mental derangement has ceased, or that, notwithstanding its continuance, the
act in question was done in an interval of mental lucidity, the burden of evidence
is upon the government. This is commonly stated thus; that where a
permanent state of insanity is shown to exist, the burden of proof is upon the
state to show that the offense was committed during a lucid interval. 18 Like-
wise, it is said that in a case of temporary insanity, the burden of proof is not
upon the government to establish that the act was done during a lucid interval, 19
or that, where the accused is shown to have had lucid intervals, it will be pre-
sumed that the offense was committed during one of them. 20
Contrary Views. It has proved easy to turn the rule that the burden of
evidence is on the defendant in a criminal case to introduce evidence of his
insanity, if such evidence does not already appear in the case of the prosecu-
tion, into a statement that the burden of proof is on the defendant to establish
his insanity by preponderance of the evidence ; 21 or, as is said, with nearly equal
frequency, to the satisfaction of the jury. 22
Intoxication. While intoxication is not a defence to crime by way of
justification or excuse, still, where the existence of a specific intent is a con-
stituent part of the offence charged and is part of the state's burden of proof,
the accused may show that at the time of the commission of the offense he
was incapacitated from mentally forming that intent by reason of intoxication.
As to this he has the burden of evidence. This has been stated in the cases to
337 I 1892 1 : Com v Gilbert, 165 Mass. 45, 19. People v. Schmitt, 106 Cal. 48, 39 Pac.
42 X E 336 (1895)- Knihts v. State, 58 204 (1895); Montgomery v. Com., 89 Ky.
Neb' 2->i 78 X W. 608, 76 Am. Rep. 78 509, 11 S. W. 475, 11 Ky. L. Rep. 40 (1889) ;
U8<H People v. Taylor, 138 X. Y. 398, 34 Hunt v. State, 33 Tex. Cr. 252, 26 S. W. 206
N. E. 275 ( 1893) : 2 Chamb., Ev., 974, n. 6, ( i894) ; 2 Chamb., Ev., 975, n. 3, and cases
and cases cited. cited.
17 People v Hettick. 126 Cal. 425. 58 Pac. 20. Ford v. State, 73 Miss. ,34, 19 So 665,
918 (1899) ; Keener v. State, 97 Ga. 388, 24 S. 35 L. R. A. 117 (1896) : U. S. v. Ridgeway,
E. (1895) ; State v. Jones, 64 Iowa 349, 17 N. 31 Fed. 144 (1887) ; 2 Chamb., Ev., 975
W 911, 20 N. W. 470 (1884) ; State v. Law- and cases cited.
rence 57 Me 574 (1870) ; State v. Peel, 23 21. Cavane** v. State. 43 Ark. 331 (
Mont.' 359, 59 Pac. 169, 75 Am. St. Rep. 52!) People v. Hettrick. 126 Cal 425. 58 Pac. !
(1899) ; O'Connell v. People, 87 N. Y. 377, 41 (1809) : State v Davis. 109 N.
Am Rep. 379 (1882) ; Maas v. Territory, 10 S. E. 55 (1891) : State v. Hansen. 25 Or. .'
Okla 714 63 Pac. 960, 53 L. R. A. 814 35 Pac. 976. 36 Pac. 296 (1894): Boswell
(1901)- Revois v. State, 82 Wis. 295, 52 N. v. Com.. 20 Gratt. (Va.) 860 i
W 84 ( 1892) ; 2 Chamb., Ev., 974, n. 7, and Chamb., Ev., 976. n. 1 and cases cited.
caes cited 22 state v - Cole ' 2 Pennew (DeL) 44 '
18. Armstrong v. State, 30 Fla. 170, 11 So. 45 Atl. 391 (1890) : State v. Scott, 4
618 17 L R A 484 (1892) : People v. Mont- Ann. 253, 21 So. 271. 26 L. R A. 721
eoniery 13 Abb. Pr. (N. S.) (N. Y.) 207 Ortwein v Com.. 76 Pa. 414. 18 Am. Rep. 4
(1872) ; Wheeler v. State. 34 Ohio St. 394. (1874) ; 2 Chamb., Ev., 976, n. 2 and ca 8 es
32 Am.' Rep. 372 (1878); 2 Chamb., Ev., cited.
975, n. 2, and cases cited.
405
X OF EVIDENCE.
236
the effect that the accused has the burden of proof to establish the fact of in-
toxication by a fair preponderance of the evidence, 23 or even, ft is said, beyond
a reasonable doubt. 24
Self-defence. The burden of evidence to establish facts showing action in
self-defence may rest upon the accused.- It has however been ruled to the
effect that where the accused relies upon evidence of self-defence, he must
establish the truth of that proposition by a fair preponderance of the evidence. 20
405. Same ; Facts Known to Adverse Party The circumstance that one's
opponent possesses peculiarly full and complete knowledge relating to a- fact,
does not, in and of itself, proprio v if/ore, shift the burden of evidence upon
him. 27 It is often said that facts which are especially within the knowledge
of a party must be proved by him. 28 This rule is especially applied where the
fact particularly well known to the other side presents the further difficulty
in the way of adequate proof that it is negative. Under these circumstances,
it occurs with special frequency that the other party is called upon to prove it. 29
23. .State v. Kavanaugh, 4 Pen. (Del.) 131,
5;{ Atl. 33,5 (1902); State v. Sparegrove,
134 Iowa 599, 112 N. W. 83 (1907): Com.
v. McXamee, 112 Mass. 285 (1873) : State v.
Grear, 29 Minn. 221, 13 N. \V. 140 (18S2) ; 2
Chamb., Ev., 977, n. 2 and cases cited.
24. State v. Spencer, 21 X. ,]. L. 196 (1846).
25. State v. Lee, 1 Boyce's (24 Del.) Rep.
18, 74 Atl. 4 (1909) ; 2 Chamb., Ev., 977a.
26. People v. Schryver, 42 X. Y. L. (1870) :
State v. Lee, supra.
27. Anderson v Suggs, 42 Ga. 265 (1871) ;
Colorado Coal, etc., Co v. U. S. 307, 8 S. Ct.
131, 31 L. ed. 1S2 (1S87): 2 Chamb, Ev.,
978, n. 2 and cases cited.
28. Dirks v. California Safe Deposit, etc.,
Co., 136 Cal. 84, 68 Pac. 487 (1902): Swin-
hart v. St. Louis & S. Ry. Co'., 207 Mo. 423,
105 S. W. 1043 (19071: l?rooks v. Garner,
20 Okla. 236, 94 Pac. 694. 97 Pac. 995 ( 1908) ;
Fleming v. People, 27 N. Y. 329 i 1863) : 2
Chamb.. Ev., 978, n. 4 and cases cited.
29. Holmes v. Warren. 145 Cal. 457, 78
Pac. 954 (1904): Fulwider v. Trenton Gas,
Light & Power Co., 216 Mo. 582. 1 16 S. \V. 508
(1909) ; 2 Chamb., Ev., 978, n. 5 and cases
cited. See also, 406. n. 30, n. 47. infra.
In an indictment for an assault with a
deadly weapon where there is evidence that
the defendant pointed a pistol at the com-
plainant the burden of showing that the pistol
was not loaded is upon the defendant. The
court remarks that it would be impossible
in most cases to prove this by the state
and that a technical rule should not be
allowed to be set up in such a case. It would
seem that the usual rule might apply that
where the evidence is in the possession of
a party and he does not produce it this
raises a presumption against him. Territory
v. Gome-/, 14 Ariz. 139, 125 Pac. 702, 42
L. R. A. (N. S.) 975 (1912).
Agency. Where an automobile which does
damage belongs to the defendant this is prima
facie evidence that the driver was the serv-
ant of the owner and was driving for the
owner and the burden is upon the defendant
to overcome this presumption by competent
evidence. Birch v. Abercrombie, 74 Wash.
486. 133 Pac. 1020, 50 L. R. A. (N. S.) 59
(1913).
30. People v. Boo Doo Hong, 122 Cal. 606,
55 Pac. 402 (1898); Williams v. People,
121 111. 84, 11 X. E. 881 (1887); People v.
Xyce, 34 Hun (N. Y.) 298 (1884). See
405, n. 29, supra, 2 Chamb.. Ev., 979, n. 1
nd cases cited Where a former conviction is
shown by the judgment roll the burden then
falls on the other side to show that the judg
ment lias been reversed. State v Findling,
123 Minn 413. 144 X. W 142. 49 L R. A. (N.
S.) 449 (1913).
Exceptions in Insurance Policy. In an
action on an insurance policy the burden is
on the company to show that death occurred
from a cause excepted from liability by the
policy. Red Men's Fraternal Ass'n. v. Rip-
pey, 181 Ind. 454, 103 N. E. 345. 50 L. R. A.
POSITIOX OF BURDEN. -iOG
406. [Position of Burden of Evidence] ; Negative Facts A special and
peculiarly forcible instance of the application of these rules regarding dis-
charge of the burden of evidence concerning facts which are within the knowl-
edge or control of the other party is afforded where the fact or proposition to
which the burden relates is in substance negative. 30 The rule that the party
to whose contention in the cause a fact is essential has the burden of evidence
in regard to it is in no way displaced by the circumstance/' 1 It is still part
of the litigant's burden of evidence to prove the negative proposition of fact;
- as that a certain quality does not exist in a process, 32 thing, 33 or per-
son/' 54 lie may properly be required to prove that a certain event has not
happened," that a fact did not exist, 36 or that a given person has not done a
certain thing. 37 Mere difficulty of making proof does not prevent the tribunal
from requiring him to show, as best he may, that a designated individual does
?io^ possess a certain thing. 38
Quantum of Evidence Required. But the quantum of evidence to be
demanded from him is conditioned, by way of limitation, by the well recognized
logical difficulty of affirmatively establishing a negative proposition ; :!i
which though not, as has been intimated, 40 a " maxim of law," still presents a
logical difficulty which usually increases in proportion to the universality of
the negation. 41 The amount of proof required to support the negative propo-
sition and to shift the burden will vary according to the circumstances of
the case; and very slight evidence will often be sufficient to shift the burden
to the party having the greatest opportunities of knowledge concerning the
fact to be inquired into. 42
Methods of Proving <t Xc(/atire. Frequently all that is practically possible,
in the absence of direct evidence, is the introduction of testimony establishing
(X. S.) 1006 (1913). Where an insurance 574, 21 X. E. 445, 12 Am. St. Rep. 453
policy excepts accidental injuries the Imrden (1889) ; 2 Chamb., Ev., 979, n. 6 and eases
is on the insurer to show that a wound from a cited.
burglar's revolver was not accidental but was 36. Columbus Watch Co. v. Hod^npyl, 135
intentional. Allen v. Travellers' , Protective N. Y. 430, 32 N. E. 239 (1892)
Asso., 103 Iowa 217, 14.3 X. W. 574, 48 L. K. 37. Bastrop State Bank v. Levy. 106 La.
A (X S) 600 (1913). 586 > 31 s - lfi4 '1902): Little v. Thompson,
31. Pollak v. Winter, 166 Ala. 255. - r >l So. 2 Me. 228 (1823) : 2 Chamb., Ev., 979, n.
998 (1910): State v. Morphy. 33 Iowa 270, 8 and cases cited.
11 \m Rep. 122 (1871): State v. Read. 12 38. Beardstown v. Virginia. 76 111. 34
R I 135 (1878) Chamb.. Ev., 979. n. 2 (1875^ : Com, v. Locke, 114 Mass. 288 (1873) ;
and 'cases cited. ' Pple v. Pease. 27 X. V. 45. 63, 84 Am.
32. Kelley v. Owens, 95 Cal. xvii, M Pac. Dec. 242 (1863): 2 Chamb., Ev., 979, n.
596 (189 9 ) ^ and cases cited
33 State v Hirsch. 45 Mo. 429 (1S70K 39. 2 Chamb. Ev.. 50. 980.
34. Lenig v. Eisenhart, 127 Pa. 59. 17 Atl. 40. Colorado Coal. etc. Co. v. 1
684 (1889"; Colorado Coal. etc. Co. v U. S., 41. 2 Chamb.. Fv.. 980. n. 3.
123 F S. 307. 317. 8 S. Ct. 131. 31 L. cd. 12 42. Kelly v. Owens, supra : Succession of
("jflS-n "Delachaise v. Maginnis, 44 La. Ann. 1043
35. Weaver v. State. 89 Ha. 639. 15 S. E. (1892).
840 (1892): Boulden v. Mclntire, 119 Ind
406 BUKDEN OF EVIDENCE. 238
some particular fact inconsistent with the converse affirmative proposition. 43
In many ways, analogous in nature, the negative proposition may be estab-
lished by the inference arising from circumstantially probative facts incon-
sistent with the affirmative proposition of which the negative is proposed for
proof. 44 This has been held to be prima facie sufficient. 45 Xatimdly, proof
to, the point of demonstration is not required. 4 *
Burden of Evidence Not Shifted. The probative force of evidence of this
nature may be, when produced, inconclusive; coucliisiveness, however, may be
added by the failure of the other party to produce the more conclusive or
affirmative evidence which is within his control. 47 It is sound administra-
tion, therefore, to hold that where one who has the burden of evidence to
prove a negative proposition produces any proof which renders its existence
probable, such evidence shall, where the concjusive facts are within the knowl-
edge of the other party, be regarded as a prima facie case. 48
Modern Instances. The rule that he who has the better knowledge, espe-
cially if he can with it make affirmative proof, is under the burden of evidence,
has been widely accepted both in England and America. It has often been
held that " when a fact is peculiarly within the knowledge of a party, the
burden is on him to prove such fact whether the proposition be affirmative or
negative." 49 Thus, where one is accused of doing an act which would be
unlawful unless the doer has received a special authority by permission of law,
the government may properly allege that he has done the act e.g., that
he has operated a ferry, 50 practiced medicine, 51 sold intoxicating liquor 52
or the like without license or authority in law. When the act itself is proved,
it may then be required of the defendant that he then himself exhibit and
prove his license and authority ; 53 the burden of evidence being shifted
to him for that purpose. The short reason for this requirement is that
43. For example, the statement being that 49. Robinson v. Robinson, 51 111. App. 317
A. did not hear a certain sound, evidence of (1893) ; 2 Chamb., Ev., 983. See also,
conduct on his part inconsistent with his Clapp v. Ellington, 87 Hun (X. Y.) 542
probable action if be had heard it, is compe- (1895).
tent. Young v. Stephens, 9 Mich. 500 50. Wheat v. State, 6 Mo. 455 (1840).
(1S62), 2 Chamb., Ev., 981. 51. People v. Boo Doo Hong, 122 Cal. 606,
44. Com. v. Locke, 114 Mass. 288 (1873). 55 Pac. 402 (1898); Williams v. People, 121
Viles, 23 Vt. 494- (1.851). 111. 84 (1887).
45. Young v. Stephens, supra; Thayer v. 52. State v. Shaw, 35 X. H. 217 (1857).
46. Kelley v. Owens, supra; Vigus v. O'Ban- In civil cases the licensee must prove his
non, 118 111. 334 (1886) : Bastrop State Bank license whenever the fact is essential to his
v. Levy, supra; 2 Chamb., Ev., 981, n. 5 case. Solomon v. Dreachler, 4 Minn. 278
and cases cited. (1860). But see Wilson v. Melvin, 13 Gray
47. 2 Oiamb., Ev.. 082. 1070 *t *eq. (Mass.) 73 (1850). 2 Chamb., Ev.. 983, n.
48. Kelley Owens, supra : Vigus v. O'Ban- 5 and cases cited.
non. supra,; Boulden v. Mclntire, supra: 53. Shearer v. State. 7 Blackf. (Tnd.) 99
State v. Hirsch. supra; 2 Chamb., Ev., 982, (1844) -. State v. Crowell, 25 Me. 171 (1845) ;
n. 4 and cases cited. 2 Chamb., Ev., 983, n. 6 and cases cited.
239 SCOPE OF BUKDEN. 407,408
license or authority is a fact easy for him to prove and difficult for the
prosecution to disprove. 54
The founder View. But such is not, in point of principle, in accordance
with the rules of evidence at common law. The burden of evidence as to a
particular fact is always, properly, on the party to whose case it is essential.
The quantum of proof required to produce a prima facie case is, however,
materially affected by the relative knowledge of the parties regarding the
existence of a particular fact or the truth of a given proposition. 55
407. Scope of Burden of Evidence. The actor in the tirst instance and
either party at any subsequent stage when he has the burden of evidence
must, in order to relieve himself of this onus and cast it upon his opponent,
show the existence of every fact essential to the proof of his allegations ; ;
including all probative facts necessary to the admissibility of those which are
res (jestae or constituent.'"
Media of Proof. The actor or other party having the burden of evidence
will be logically required to establish the truth of the facts stated by his
witnesses showing their credibility. 58 He must establish, against all counter
proof, the geuuiuess, character, 59 and legal validity 60 of the documents in-
troduced by him in evidence ; although, where a writing free from suspicion
and apparently genuine is produced, 01 its authenticity may be, in many cases,
assumed as a matter of administration.
408. [Scope of Burden of Evidence]; Quantum of Proof Required; Num-
54 > Chamb Ev., 983, n. 7 and cases jurisdiction of the court. Shaw v. Carder,
cited " 2 Montreal Super. Ct 282 (1886) ; Kosenthal
"55" See discussion of this view, 2 Chamb., v. Rosenthal, 151 Mich. 493, 14 Detroit Leg.
Ev., 984 and notes. * 998, 115 X. W. 729 (1908).
56 Penitentiary Co. No. 2 v. Gordon. 85 58. Higgins v. Robillard, 12 L. C. Rep. .
ua 159 11 S W 584 (1890); Willett v. (1861); Elliott v. Bussell, 19 Ont. 413
Rich 142 Mass. 356, 7 N. E. 776, 5(5 Am. Rep. ( 1890) ; 2 Chamb.. Ev, 986.
684 '(1886)- Whitney v. Morrow. 50 Wis. 59.' Ross v. Gould, 5 Me. 204 (1828).
10- 6 X W 494 (1880} j "2 Chamb., Ev., 60. Kitner v. Whitlock, 88 111 513 (1878)
98o', n.Y and cases cited. Burnham v. Allen, 1 Gray (Mass) 496
Conditional Promise.- In an action on a (1854); Farmers' L. & T. Co. v. S.efke. 1
promise to pav a debt when able the burden X. Y. 354, 39 N. W. 358 (1895) : 2 Chamb.,
rests on the plaintiff to show that the de- Ev., 986. n. 3 and case, cited,
fendant was able to pay. Van Buskirk v. 61. Simpson v. Davis, 110 Mass. 26*
Kuhns 104 Cal 472, 129 Pac. 587, 44 L. R. Am. Rep. 324 (1876): Manistee Xat. Bank
A (X T> S ) 710 (1013). v - Seymour, 64 Mich. 59, 31 X. W.
7. 838. ./. State v. Swift. 57 Conn. (1887): Farmers' L. & T. Co. v. Siefke.
496 18 Atl 664 ' 1889) : Grimes v. Hilliary, supra; Xewlin v. Beard. 6 V\ . \ a. 1
ISo'lll 141 36 X E 977 (1894) : Hansen v. 2 Chamh.. Ev., 986, n. 4 and cases cited.
American Ins. Co., 57 Towa 741, 11 X. W The proponent of the evidence must also.
670 (1882) : 2 Chamb., Ev., 985. n. 2 and as a part of the burden of evidence, s
^..j that the evidence was not obtained by an
^Jurisdiction.- The actor may also be called illegal search of one's person. Sherman v.
upon to establish all facts essential to the State. 2 Ga. App. 148, 58 S. E. 393 (1907).
409
BURDEN OF EVIDENCE.
her of Witnesses. 02 In civil cases, a fair preponderance of the evidence is
needed ; in criminal cases, preponderance to a moral certainty or beyond a
reasonable doubt is required. The English law of evidence has so far evolved
out of the stage of formalism, into that of reason as to eliminate number;
except as an element of probative weight, 015 i.e., of belief* 4 A'o numerical,
or other physical tests for truth obtain, as a rule, in the English law of evi-
dence. Few propositions are presented for judicial determination which may
not be satisfactorily established by the evidence of a single witness. ' 5 A mere
numerical preponderance in witnesses produced by one side as to a given point
over those produced by the other side can no longer automatically control the
decision of a court. A jury may reasonably and properly credit a single witness
against many. Xor, on the contrary, is a witness who is uncontradicted and not
directly impeached, entitled, as of right, to be believed. 07
409. Scope of Burden of Evidence; Prima Facie Case. os A prinia facie
case is such a collection of facts as will suffice, as a matter of logic, to over-
come the inertia of the court. Such a case as a court or jury might reason-
ably act upon is a prinia facie case. 09 A ruling that such a prinia facie
case has been made out has several important consequences. (1) It shifts
62. 2 Chamb., Ev., 987.
63. 2 Chamb., Ev., 988. See Callanaii v.
bhavv, 24 Iowa 441, 445 (1868). Number
in witnesses, however, may furnish corrobora-
tion and so be an element in inducing belief
where the effort is made to decide disputed
propositions by the use of reason. West
Chicago St. R. Co. v. Lieserowitz, 197 111.
607, 64 X. E. 718 (1902) ; People v. Tuczke-
witz, 149 X. Y. 240, 43 X. E. 549 (1896).
64. See Belief Induced by Reason, 2 Chamb.,
Ev., 989.
65. Callanan v. Shaw, supra; 2 Chamb., Ev.,
991, n. 1. " It is impossible to prescribe
any fixed rule by which the credibility of
the witness is to be tested or which shall
bind the conscience of the court as to the
conclusiveness of the evidence in a given
case." U. S. v. Lee Huen, 118 Fed. 442, 457
(1902).
66. Fengar v. Brown, 57 Conn. 60, 17 Atl.
321 (1889); Gould v. SafTord, 30 Vt. 498,
505 (1866). "The evidence of a single wit-
ness to a fact, there being nothing to throw
discredit thereon, cannot be disregarded."
Bourda v. .Tone?. 110 Wis. 52, 60, 85 X. W.
671 ( 1901 ) . California follows the same rule.
Lee Sing Far v. U. S., 35 C. C. A. 327, 94
Fed. 834, 839 (1899) ; 2 Chamb., Ev., 991-,
n. 2 and cases cited. As to Basis of the
Earlier Rule requiring more than one witness
for affirmative action on the part of the
court, see 2 Chamb., Ev., 990.
67. " Testimony, regardless of the amount
of it, which is contrary to all reasonable
probabilities or conceded facts testimony
which no sensible man can believe goes for
nothing." Bourda v. Jones, supra. Never-
theless, there seems to be a feeling, which
occasionally manifests itself in the jury box,
that, by virtue of some legal necessity, un-
contradicted evidence, free from inherent im-
probability, when given by even ' a disinter-
ested witness, who is in no way discredited,"
must, as by some compulsion be given proba-
tive weight according to its face value. This
is but a recrudescence of the ancient formal-
ism. Quock Ting v. U. S, 140 U. S. 417, 11
S. Ct. 734 (1891): U. S. v. Lee Huen, 118
Fed. 442, 457 (1902). Occasionally, it has
been said that the rule of law was to that
effect. Southwest Va. M. Co. v. Chase, 95
Va. 50, 27 S. E. 826 .(1897). This is ob-
viously an error.
68. 2 Chamberlayne, Evidence, 992-996h.
69. Catlett v. St. Louis, etc.. R. Co., 57 Ark.
461, 21 S. W. 1062 (1893) ("evidence legally
sufficient to warrant a verdict) : Ohio & M. R.
Co. v. Dunn. 138 Ind. 18. 27, 36 X. E. 702,
37 X. E. 546 (1893) (evidence warranting a
finding if undisputed) ; 2 Chamb., Ev , 992,
n. 1 and cases cited. " Evidence which if un-
241 SCOPE OF BUEDES.
the burden of evidence. (2) It states, in many cases, a rule of substantive
law as to what is reasonable regarding a certain state of facts in connection
witb a rule of substantive law. (3) It enables the presidmg judge at
same time, to expedite the trial and perfect the substantive law. \\ 1
iudo-e mav rule as what facts constitute a v n,m facie case, m any givei
stance, it' is the provmce of the jury to determine whether such a case has
actuallv been established by the evidence.- This power on the pan
jnrv is still, however, subject to the right upon the part of the judge to
nsLt upon ,he use of sound logical P and legal reasomng, .ncludmg ; the effec
of presumptions of law. and to withdraw the case from the ju* J
wouM set aside their verdict on it as against the everwhelm.ng we.ght
evidence.' 2
Inertia of Court Nothing less probative thaii a pnma facie case overcoi
the court's inertia. This is a matter of definition; -a scintilla not
regarded as sufficient.' 4 .
Not a Question of Evidence. A ruling as to the existence of a pnma facie
case is merelv provisional and temporary. Until the end of the case such a rule
affects merelv the position of the burden of evidence and is not final as to
the discharge' of the burden of proof. These rules, regulating the existence of
a pnma facie case in any given controversy, while they are rules o : law,
not rules in the law of evidence.
Statutory Requirement. The legislature may determine that certain facts
shall be taken by the tribunals of the jurisdiction to be prima facie evidence of
others. Thus, in civil cases, the findings of fact by an auditor, ,
butted or unexplained is sufficient to main- with rules of practice not sufficient), 2
mH warrant the i-onolu- Chamb., Ev., 093, n. 1 and cases cited.
tarn the proposition and *-~"Sto* ** Offutt v. Expos. Co, 175 111. 472, 51
sion U> "** : 1 "o 243 X- E., 650 (1808) (evidence "tending to
-er, 80 Me. 000, 3 6
Atl " 10 9 . T p Pn 154 X Y 75. "What is prima facie evidence of a
fact. It is such as in jeot of
0; ovi 40 ^o W -1S07): 2 Chamb, sufficient to establish the fact; and if not
rebutted remains sufficient for the purpose.
Ev 5 002. n 3 and ea.es , ^ ^ JP^ fi ^ ^ ^ ^ ^ g
72. Forties v. \\rvjht - Rtorv< j The burden
' K " oV ^oofls not alreLd in position bv such a
rule of law nor by a statutory requirement
(1910) '
.
47, Atl 641 (1900) (mere failure to comply
40'J BUKDEN OF EVIDENCE. 242
or appraisers 77 may by statute be accorded a prima facie force. In offences
against the laws regulating the sale of intoxicating liquor proof of certain
acts 78 is frequently declared sufficient to sustain the state's burden of evidence
in the original instance, i.e., to call upon the defendant to show a justification
or excuse.
"By a Fair Preponderance of the Evidence."- - It is customary to lay
down the rule as to quantum of proof in civil cases by saying that it is the
duty of the actor, 79 of the party having the burden of proof, to establish the
truth of his contention " by a fair preponderance of the evidence " ; 8 " the
necessary result being that where the evidence is evenly balanced, the actor
losses. 81 To discharge the burden of proof, by the creation of a prima facie
case, it is, first of all, necessary that the actor establish, either by proof, or
by some administrative substitute for it by way of assumption, presump-
tion or the like, a prima facie case, i.e., such a quantum of evidence that the
tribunal in view of the subject-matter and other salient circumstances, might
reasonably act in accordance. 82 When the truth of any material portion of
this case is controverted by the other side, it is the duty of the actor to main-
tain it, against all assaults, " by a fair preponderance of the evidence.'' 83
" Beyond a Reasonable Doubt."- - In criminal cases it is customary to charge
that it is the duty of the state to satisfy the jury " beyond a reasonable doubt '' 84
as to the truth of every material 8r> fact, i.e.. proposition of fact alleged in the
indictment. A mere preponderance of evidence is not sufficient. M: The re-
quirement applies to criminal prosecutions for misdemeanor as well as for
felony. 87 The jury are not required to acquit the accused merely because one
77. Railroad v. Crider, 01 Tenn. 480 (1802). 1022 (1007). The phrases "to a moral cer-
78. Com. v. Minor, 88 Ky. 422 (1880) tainty '' and " beyond a reasonable doubt " are
79. 156, supra. synonymous. People v. Bonifacio, 190 N. Y.
80. Chicago Transit Co v. Campbell, 110 150. 82 X. E 1008 (1007).
111. App. 366 (1003): Nash v. Cooney, 108 85. State v Fisk. 170 Ind. Ififi. 83 X. E.
111. App. 211 (1003): Suffering v. Heyl & 005 (1008); State v. Reeder. 72 S. C. 223,
Patterson, 130 Wis. 510, 121 N. W. 251 51 S E. 702 (1905); 2 Chamb., Ev., 996a,
(1900) ; 2 Chamb.. Ev., 906. n. 2 and cases cited.
81. Indianapolis St. Ky. Co. v. Schmidt, 86. Glover v. State. 114 Ga. 828, 40 S. E.
163 Ind. 360. 71 N. E. 201 (1004). 908 (1002): Marlatt v. People, 104 111. 364
82. Peat v. Chicago. M. & St. P. Ry. Co., (1882): State v. Porter. 64 Iowa 237, 20
128 Wis 86, 107 N. W. 355 (1006). N. W. 168 (1884): Atkinson v. State, 58
83. 2 Chamb., Ev.. 006. Neb. 356. 78 N. W. 621 (1800): People v.
84. McDonald v. State. 56 Fla. 74, 47 So. Shanley, 30 Misc. (N. Y.) 200. 62 N. Y.
485 (1008); State v. McQueen, 60 N. J. L. Supp. 380, 14 N. Y. Cr. 263 (1890); Mun-
522. 55 Atl. 1006 (1003) : U. S. v. Breese, 131 den v. State, 37 Tex. 353 (1806) : Goldman
Fed. 915 (1004): 2 Chamb., Ev., 006a, n. v. Com., 100 Ya. 865, 42 S. E. 023 (1002);
1 and cases cited. The presence of some I S. v. Jackson, 20 Fed. 503 (1886); 2
proof, not sufficient to establish guilt beyond a Chamb., Ev., 006a. n. 3 and cases cited,
reasonable doubt, as required by Code Cr. 87. State v. King, 20 Ark 166 (1850):
Proc., 380, is not sufficient to warrant the Stewart v State. 44 Ind. 237 (1873) : Com. v.
submission of a criminal case to the .jury. Certain Intoxicating Liquors, 115 Mass. 142,
People v. Gluck, 188 N. Y. 167, 80 N. E. 105 Mass. 595 (1874); People v. Davis, 1
SCOPE OF BURDEN.
409
of tlie jurors knows that a ' doubt * is a fluctuation or uncertainty of mind aris-
ing and that a probability of innocence requires the acquittal of the defendant. s "
Definition of " Reasonable Doubt." A satisfactory definition of " reason-
able doubt " seems difficulty of procurement ; attempts at explanation tend
rather to confuse and bewilder than to clarify. " Language that is within the
comprehension of persons of ordinary intelligence can seldom be made plainer
by further definition or refining. All persons who possess the qualifications
of jurors know that a ' doubt ' is a fluctuation or uncertainty of mind arising
from defect of knowledge or of evidence, and that a doubt of the guilt of the
accused, honestly entertained, is a ' reasonable doubt.' " 90 Conjecture, 91
whim 92 or surmises as to possibilities 93 do not constitute reasonable doubt. 94
It must, on the contrary, be a substantial doubt one with something to rest
upon 95 in connection with the evidence or lack of it. 96 It is a fair doubt,
one which a reasonable man, who was desirous of ascertaining the exact truth and
doing his full duty between the accused and society, might reasonably entertain.
A firm and abiding conviction conscientiously held is belief beyond a rea-
sonable doubt." 7
In other words, a reasonable doubt is such a mental hesitancy to act as a
conscientious and resolute man might reasonably entertain. 98
Quantum in Civil and Criminal Cases Contrasted. In a civil case the
Wheel. Cr. 235 (1828); Fuller v. State, 12
Ohio St. 433 (1861) ; 2 Chamb., Ev., 996a,
n. 3 and cases cited.
Burden of proof. In an action for viola-
tion of ordinance the evidence must prove a
violation by a preponderance only and
such proof need not be direct but it may con-
sist of a reasonable inference only. Portland
v. Western Union Telegraph Co.. 75 Or. 37,
146 Pac. 14S, L. E. A. 1915 D 260
(1915).
88. Teague v. State, 144 Ala. 42, 40 So.
312 ( 1906).
89. Gainey v. State, 141 Ala. 72, 37 So.
355 (1904)'; Xelms v. State, 58 Miss. 362
(1904).
90. People v. Stubenvoll, 62 Mich. 329, 28
X. W. 883 (1880).
91. Fletcher v. State, 90 Ga. 468, 17 S. E.
100 (1892). A va<rue. fanciful or speculative
doubt is not a reasonable one. State v.
Adams, 6 Pen. (Del.) 178, 65 Atl. 510.
92. State v. Bodekee, 34 Iowa 520 (1872) ;
Com. v. Drum. 58 Pa. 9 (1868); 2 Chamb.,
Ev , 996b. n. 4 and cases cited.
93. Way v. State. 155 Ala 52 (1908) : State
v. Briscoe, 6 Pen. (Del.) 401 (1907): State
v. Levy, 9 Ida. 483. 75 Pac. 227 (1904):
State v. Wells. Ill Mo. 533. 20 S. W. 232
(1892); 2 Chamb., Ev., 996b, n. 5 and
cases cited.
94. Giles v. State, 6 Ga. 276 (1849) ; loops
v. State, 92 Ind. 13 (1883) ; State v. Bridges,
29 Kan. 138 (1883) ; McGuire v. People, 44
Mich. 286, 6 N. W. 669, 38 Am. Rep. 265
(1889); Lawhead v. State, 46 Neb. 607. 65
N. W. 779 (1895); People v. Hughes, 137
X. Y. 29, 32 N. E. 1105 (1893); Miles v.
U. S.. 103 U. S. 304, 26 L. ed. 481 (1880);
2 Chamb., EV., 996b, n. 6 and cases cited.
95. Fletcher v. State, 90 Ga. 468, 17 S. E.
100 (1892): U. S. v. Richards, 149 Fed. 443
(1906) -. State v. Abbott, 64 W. Va. 411, 62
S. E. 693 (1908); 2 Chamb., Ev., 996b,
n. 7 and cases cited.
96. Wood v. State. 31 Fla. 221, 12 So. 539
(1893) ; State v. Davidson, 44 Mo. App. 513
(1891) : People v. Barker, 153 X. Y. Ill, 47
X'. E. 31 (1897) : State v. McCune. 16 Utah
170, 51 Pac. 818 (1898) ; People v. Ross, 115
Cal. 233, 46 Pac. 1059 (1896): 2 Chamb.,
Ev., 996b. n. 8 and cases cited.
97. Harrison v. State. 144 Ala. 20, 40 So.
568 (1906) : 2 Chamb.. Ev., 996b. n. 9 and
cases cited.
98. State v. Stewart. 6 Pen. (Del.) 435. 67
Atl. 786 (1907): Miller v. State (Miss.
1904), 35 So. 690.
409 BURDEN OF EVIDENCE. :244
party having the burden of proof must, for affirmative action by the tribunal,
produce what constitutes relatively to his opponent, a fair preponderance of the
evidence and absolutely and intrinsically one such that a jury can rationally
act in accordance with it. ;ni In criminal proceedings, the prosecution must
produce a case clear beyond a reasonable doubt. 1 In the civil proceeding, the
actor need furnish only a case in accordance with which men may reason-
ably act. In a criminal one, on the contrary, such an amount of evidence
must be produced that a reasonable man must act in accordance with it,
i.e., that he can rationally act in no other way.
Scope of Requirement. It is obviously unnecessary and, indeed, practically
impossible, that each res gestae or probative fact should itself be established
beyond a reasonable doubt. 2 It is sufficient should the evidence adduced for
affirmative action on the part of the tribunal establish a conviction of guilt to
that extent. It is the entire contents of the scale which must preponderate to
the designated extent. 3 Failure to prove a single one among such probative
facts beyond a reasonable doubt cannot be a satisfactory ground for refusing to
follow an affirmative case which, as a whole, excludes any doubt whatever. 4
It has, however, been very properly held that all propositions essential to or
component of the liability of the accused must be established beyond a reason-
able doubt. 5 In other words, collateral or subsidiary facts or propositions of
fact need not be proved to the same degree of mental certainty."
99. 2 Chamb., Ev., 996c: 1 Chamb., Ev., State v. Maher, 25 Nev. 405, 62 Pac. 236
385. (1899); State v. Snell, 5 Ohio Dec. 670
1. Jurors should doubt in their judicial (1895); Hod-je v. Territory. 12 Okl. 108, 69
capacity what they would doubt in their Pac. 1077 ( 1902*) ; 2 Chamb., Ev., 996d.
private relations. U. S. v. Heath. 20 D. C. n. 7 and cases cited.
272 (1891); Spies v. People. 122 Til. 1, 12 6. Hauk v. State, 148 Ind. 238, 46 X. E.
N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320 127, 47 N. E. 465 (1897) ; State v. Jackson,
(1889) ; State v Rounds, 7fi Me. 123 (1884) ; 90 Mo. 156. 2 S. \V. 128 (1886) : People v.
2 Chamb., Ev., 996c, n. 2. Davis, 21 Wend. (X. Y.) 309 (1839); State
2. Butt v. State, 81 Ark. 173. 98 S. W. 723 v. Turner, 119 X. C. 841, 25 S. E. 810 (1896) ;
(1906): Olson v. People, 125 111. App. 460 C.olonbieski v. State, 101 Wis. 33.3, 77 X. W.
(1906). 189 (1898); 2 Chamb.. Ev.. 99(id. n. 8 and
3. Pitts v. State. 140 Ala. 70. 37 So. 101 cases cited. Corroboration may in like man-
(1904); State v. Skillman, 76 X*. J. L. 464, ner be proved by evidence which, in itself
70 Atl. 83 (1908) ; Territory v. Tais, 14 X. considered, admits of the existence of a rea-
Mex.' 309. 94 Pac. 947 (190S); 2 Chamb., sonable doubt. Lasater v. State, 77 Ark.
Ev., 996d. n. 2 and cases cited. 468, 94 S. W. 59 (1906).
4. llouser v. State. 58 Oa. 78 (1877) ; Kas- Good Character. On the other hand, the
sakowski v. People, 177 111. 563, 53 X*. E. proof of a <rood character may in itself es-
115 (1898); State v. Hayden, 45 Iowa 11 tablish a reasonable doubt. Teapue v. State.
(1876): State v. Schoenwald, 31 Mo. 147 144 Ala. 42, 40 So. 312 (1906); Sweet v.
(1860) ; Rudy v. People. 128 Pa. 500, 18 Atl. State, 75 Xeb. 263. 106 X. W. 31 (1905) : but
344 (1889) : Barr v. State. 10 Tex. App. 507 it is not error to refuse to charpe in a case
(1881) ; 2 Chamb.. Ev., 996d, n. 5 and cases dependent on circumstantial evidence thai
cited. proof of wood character is in and of itself suf
5. People v Ah Chuncr. 54 Cal. 398 (1879) : ficient to create a reasonable doubt to which
Gavin v. State, 42 Fla. 553 29 So. 405 (1900) : the defendant is entitled. U. S. v. Cohn, 128
245 SCOPE OF BITBDEJT. 410
Criminal Capacity. The capacity of the accused to commit the crime in
question is so far a material part of the case of the prosecution that it must
be established beyond a reasonable doubt. 7
Grade of Offense. Where the offense charged in the indictment may be
established in one of several grades, it is a necessary corollary of the rules
relating to reasonable doubt that should the jury entertain such a doubt as to
the grade of the defendant's offense but experience none that he is guilty
of the offense itself, they should convict him of the less serious degree of
the crime. 8
Identity of Accused. It is necessary that the identity of the defendant
with the doer of the acts charged in the indictment should be established by
the prosecution beyond a reasonable doubt. 9 The element of inference is,
however, present in all cases to a greater or less extent. Still, a witness who
declares his " belief " that the accused was the person whom he saw commit the
crime in question may well be regarded as furnishing evidence which would
justify the jury in acting upon it. 10
Psychological Constituents. Where a mental state is a necessary part of
the liability of the accused, the prosecution must establish its existence be-
yond a reasonable doubt. 11 This proof, in the absence of an admission, 12 must
be by establishing probative facts, including those of manifestation. 13
410. Scope of Burden of Evidence; Special Inertia of the Court; Civil Cases.
In order that a i>rima facie case may be produced, such as would reasonably
overcome the inertia of the tribunal, the rules of procedure require in civil
cases merely that a fair preponderance of the evidence shall appear in favor
of the person having the burden of proof. Such a preponderance alone is
sufficient to justify the affirmative action of the court, and, when produced,
reason is satisfied. 14 Proof of the necessary facts " beyond a reasonable
Fed. 615 (1904); U. 8. v. Browne, 126 Fed. acy, for example, if it is uncertain on the
766 (1903). See also Com. v. Miller, 31 Pa. evidence which one of several persons was
Super. Ct. 309 (1906). the particular person who committed the act,
7. Wilcox v. State, 32 Tex. Cr. 284, 22 all must be acquitted. People v. Woody, 45
S. W 1109 (1893). See also, Foltz v. State, Cal. 289 (1872); Campbell v. People, 16 111.
33 Ind 215 (1870): State v. Congot. 121 17, 61 Am. Dec. 49 (1854).
Mo. 458, 26 S. \V. 566 (1893); 2 Chamb.. 10. Com. v. Cunningham, supra: State v.
Ev., 996e. Franke, 159 Mo. 535, 60 S. W. 1053 (1900).
8. Xewport v State. 140 Ind. 299. 39 X. 11. State v. Seymour. Houston Cr (Del.)
E 926 (1894); People v. Cahoon, 88 Mich. ( 1877) : State v. Porter. 34 Iowa 131 (1871);
456. 50 X. W. 384 (1891); People v Lamb, Roberts v. People. 19 Mich. 401 (1870); 2
2 Abb. Pr. (X. S) (X. Y.) 148 (1S66): 2 Chamb.. Ev.. 996h, n. 1 and oases cited.
ClKimb., Ev., 996f, n. 1 and cases cited 12. See Admissions Defined, 499, infra;
9. Com. v. Cunningham. 104 Mass. 545 2 Chamb . Ev.. 1233.
(1870) ; State v. Jones. 71 Mo 591 (1879) -. . 13. People v. Hiltel. 131 Cal. 577. 63 Pac.
People v. Smith, 7 X. Y. Supp. 841. 7 X. Y. 910 (1900) : Roberts v. People. 19 Mich. 401
Cr. 425 HS80) : Bill v. State. 5 Humphr (1870): 2 Chamb. Ev., 996h. n. 3 and
(Tenn ) 155 (1844): 2 Chamb. Ev , 906g. cases cited,
n. 1 and cases cited. In a case of conspir- 14. *Shinn v. Tucker, 37 Ark. 580 (1881);
410
BUBDEN OF EVIDENCE.
246
doubt " is not required in civil cases, 15 even where such an action involves
proof of facts sufficient to constitute a criminal offense. 10
Allegations of Crime. It is not material whether facts constituent of
crime are part of the affirmative case. Only the civil preponderance is re-
quired in cases where divorce is sought on the ground of adultery, 17 or a civil
action is brought for seduction, 1 " or to obtain contribution to the support of
a bastard child. 10 Even should illegality be claimed as ground for an in-
junction, 2 " or other affirmative action, or, is on the contrary, pleaded in defense,
as where truth is alleged to defamation of character in charging the commis-
sion of a crime, 21 or arson by the insured is set up by the insurer under a fire
insurance contract, 22 no variation from the ordinary requirement is permitted.
Suits for Penalties. The law even follows, in this matter, form rather than
substance. It requires only a preponderance of the evidence, provided a
prima facie case has been established, where the consequences of the court's
action are criminal; provided only that the form of proceeding is civil.
Of this nature are suits brought for the recovery of a penalty, 23 multiplied
Scott v. Wood, 81 Cal. 398, 22 Pac. 871
(1889); Anderson v. Savannah Press Pub.
Co., 100 Ga. 454, 28 S. E. 216 (1897) ; North
Chicago St. Ry. Co. v. Fitzgibbons, 180 111.
466, 54 N. E. 483 (1899) ; Cottrell v. Piatt,
101 Iowa 231, 70 N. W. 177 (1897) ; Hoffman
v. Loud, 111 Mich. 156, 69 N. W. 231 (1896) ;
Long v. Martin, 152 Mo. 668, 54 S. W. 473
(1899); New York, etc., Ferry Co v. Moore,
102 N. Y. 667, 6 N. ti. 293 (1886) ; Hodges
v. Southern R. Co., 122 N. C. 992, 29 S. E.
939 (1898); Nelson v. Pierce. 18 R. I. 539,
28 Atl. 806 (1894) ; Evans v. Rugee, 57 Wis.
623, 16 N. W. 49 (1883) : u. S. v. Lee Huen,
118 Fed. 442 (1902); 2 Chamb., Ev., 997,
n. 1 and cases cited.
15. Rowe v. Baber, 93 Ala. 422, 8 So.
865 (1859); Schnell v. Toomer, 56 Ga. 168
(1876) ; Baltimore, etc., R. Co. v. Shipley, 39
Md. 251 (1873); Huntington v. Attrill, 118
N. Y. 365, 23 N. E. 544 (1890); Chapman
v. Me Adams, 1 Lea (Tenn ) 500 (1878);
Scott v. Pettigrew, 72 Tex. 321, 12 S. W. 161
(1888) ; 2 Chamb., Ev., 997, n. 2 and cases
cited.
16. Smith v. Smith, 16 Colo. App. 333, 65
Pac. 401 (1901) : McDonald v. McDonald. 142
Ind. 55, 41 N. E. 336 (1895): Sinclair v.
Jackson, 47 Me. 102, 74 Am. Dec. 476 (1860) ;
Roberge v. Burnham, 124 Mass. 277 (1878) ;
Nebraska Nat. Bank v. Johnson, 51 Neb. 546,
71 N. W. 294 (1897): Dean v. Raplee, 145
N. Y. 319. 39 N. E. 952 (1895); Shaul v.
Norman, 34 Ohio St. 157 (1877) ; Catasauqua
Mfg. Co. v. Hopkins, 141 Pa. 30, 21 Atl 638
(1891); Weston v. Gravlin, 49 Vt. 507
(1877) ; New York Ace. Ins. Co. v. Clayton,
59 Fed. 559, 8 C. C. A. 213 1893) ; 2 Chamb.,
Ev., 997, n. 3 and cases cited
17. Lenning v. Lenning, 176 111. 180, 52 N.
E. 46 (1898); Lindley v. Lindley, 68 Vt.
421, 35 Atl. 349 (1896).
18. Nelson v. Pierce, 18 R. I. 539, 28 Atl.
806 (1894).
19. People v. Christman, 66 111. 162 (1872) ;
Dukehart v. Coughman, 36 Neb. 412, 54 N. W.
680 (1893) ; 2 Chamb., Ev.. 998, n. 3 and
cases cited.
20. State v. Collins (N. H. 1895), 44 Atl.
495.
21. Hearne v. De Young, 119 Cal. 670, 52
Pac. 150 (1898) ; Ellis v. Buzzell, 60 Me. 209
(1872) : 2 Chamb., Ev., 998, n. 5 and cases
cited.
22. Blackburn v. Ins. Co., 116 N. C. 821,
21 S. E. 922 (1895); First Nat. Bank v.
Commercial Assur. Co., 33 Or. 43, 52 Pac.
1050 (1898). See contra, McConnels v. Ins.
Co., 18 'ill. 228 (1856).
23. White v. Farris, 124 Ala. 461, 27 So.
259 (1900) : Campbell v. Burns, 94 Me. 127,
46 Atl. 812 (1900) ; Roberge v. Burnham, 124
Mass. 277 (1878) ; 2 Chamb., Ev., 999, n. 1
and cases cited.
Conflicting Views. The courts of Vermont
require proof beyond a reasonable doubt.
Rikor v. Hooper, 35 Vt. 457, 82 Am. Rep. 646
(1862). In Illinois, a strong case is neces-
247 SCOPE OF BURDEN. 411
damages, 24 or for a forfeiture. Proceedings for disbarment, 25 for contempt
of court, 26 or other charges involving the existence of facts tending to establish
the commission of a criminal offense, 27 stand in the same position.
411. Scope of the Burden of Evidence; Documents. The substantive law
of documents lays conspicuous difficulties often amounting to prohibitions in
the way of establishing alterations in them by parol evidence or allowing
evidence of that class to till the appropriate office of a formal instrument. 28 The
substantive law has provided that in case of wills, or conveyances of interests
in lauds, or agreements to convey such interests, the dispositive instrument or
agreement shall be in writing or shown by written evidence; and that in con-
nection with the transfer or personal property above a certain value, and in
case of agreements of particular kinds, a writing, or evidence deemed equivalent,
should be furnished in order to constitute a prima facie case, i.e, sufficient
to induce affirmative action by the court. 29
Equitable Relief. The same feeling is manifested in equity ; in cases
where its courts, as a rule, while declining to vary the ascertained purport
of a detiuitive document, will relieve a party, in whole or in part, from
its eifects on the ground that assent was procured to the instrument by fraud,
accident or mistake. Equity jurisdiction, moreover, may afford relief when
a deed absolute on its face is declared to be a trust or a mere security for an
indebtedness. But a prima facie case is not readily established ; 30 evidence
of especial clearness and cogency is deemed necessary to secure relief. 31 It
sary. Kuth v. Abington, 80 111 418 (1875). erable extent this effort to protect individual
A distinction has been attempted to the effect rights is reinforced by broad considerations
that an action civil in form which is prose- of public policy. These frequently lead to
outed by the public and not by a private in- the enactment of statutes which, while they
dividual should be treated a? a criminal case. protect the interests of the parties in a
(Ilenwood v. Roberts. 59 Mo App. 167 (1894); particular case, are, to a large extent, de-
l" S. v. Shapleigh, 54 Fed 126. 4 C. C. A 237 signed to safeguard the general interests of
(11)03). This demarcation has been expressly the public, irrespective of the relation which
repudiated in New York. I'eople v Rriggs, an individual may sustain to the document in
114 X. X. 56, 20 N. E 820 (1889). question Id See also, Convention of Par-
24. Munson v. Atwood, 30 Conn. 102 ties. 2 Chamb., Ev., 1001.
(1861); Burnet v. Ward, 42 Vt SO (1869). 29. See Considerations of Public Policy, 2
But see contra, I*. S. v. Shapleigh. supra Chamb., Ev., 1002.
25. lie Wellcome, 23 Mont. 450, 59 Pac. A misleading form of statement has been
445 (1899). But see contra. Re Evans, 22 employed to represent this inertia of the
Utah 366, 62 Pac. 913 (1900). court when it is said that a preponderance
26. Drakeford v. Adams, 98 Ga 722, 25 of the evidence is not sufficient. Sallenger
S. E. 833 (1896). v. Perry, 130 X C 134, 41 S. E. 11 (1902) ;
27. People v. Briggs. supra : Deveaux v. Olinger v. McGufFey, 55 Ohio St. 661, 48
Clemens. 17 Ohio Cir Ct 33. 9 Ohio Cir. Dec. X E. 1115 (1896) ; Dewey v. Spring Valley
647 (1898) ; 2 Chamb., Ev., 999. n. o and Land Co, 98 Wis. 83, 73 X. W. 565 (1897).
cases cited. A preponderance in any case is sufficient.
28. 2 Chamb., Ev., 1000 In part, this 30. 2 Chamb., Ev., 1003. See also, Re-
proceeds upon the theory that by these pro- lief at Law, 2 Chamb.. Ev.. 1004.
visions effect may best be given to the in- 31. 2 Chamb., Ev., 1005.
tention of the parties: but to a very consid-
411
BUEDEN OF
248
is to be observed, however, that all this has no connection with the law of
evidence. These questions belong to other branches of the law.
Impeachment. To impeach the purport :! * or refute the prima facie effect
of a formal instrument,'' 5 ' 5 as by annulling a judgment, 154 demands clear evi-
dence.
Modification. For like reasons, to modify a written definitive instrument
by parol proof of a collateral agreement, 35 the existence of a subsequent parol
arrangement," or other fact, reasonably demands strong evidence. For the
same reasons to control the eifect of documents, even of those, which, like
receipts, 37 are not deiinitive in their nature, requires cogent and unambiguous
proof, frequently referred to in language indicating a necessity for more
than a bare preponderance.
Waiver of Riyhts L )ider a Valid Instrument. A parol waiver of rights
under a written definitive instrument stands in the same position 3S and any
disavowal or renunciation of a claim, must be strictly proved, 30 though a
preponderance of evidence has been held sufficient. 40
Parol Proof of Contents of Documents; Extention of Evidence. The con-
tents of an instrument which is illegible, 41 lost, mutilated 42 or wholly de-
stroyed, may be established by satisfactory 43 parol 44 evidence as to the sub-
32. Rowe v. Hibernia 8. & L. Soc., 134 Cal.
403, 66 Pac. 569 ( 1901 ) .
33. Dickaon v. St. Paul, etc., R. Co., 168
Mo. 90, 98, 67 S. W 642 (1002) ; Souverbye
v. Arden, 1 Johns. Ch. (X. Y. ) 240 (1814);
Boehm v. Kress, 179 Pa. 386, 36 Atl. 226
(1897) ; 2 Chamb., Ev., 1006, n. 2 and cases
cited.
In a suit for infringement of a patent,
the defense of lack of novelty muat, it is said,
be proved beyond a reasonable doubt. Wash-
burn, etc., Mfg. Co. v. Wiler, 143 U. S. 275,
12 S. Ct. 450, 36 L. ed. 161 (1891)
34. Hayes v. Kerr, 45 N. Y. Supp. 1050, 19
App. Div. 91 (1897); Chandler v. Hough. 7
La. Ann. 440 (1852).
35. Hawralty v. Warren, 18 N. J Eq. 124.
90 Am. Dec. 613 (1866) ; Moore v. Brooklyn
Advertising Co., 69 Hun (X. Y) 63, 23
N. Y. Supp. 381 (1893); In re Sntch, 201
Pa. 305, 50 Atl. 943 (1002); 2 Chamb., Ev.,
1007, n. 1 and cases cited.
36. McKinstry v. Runk. 12 X. J. Eq. 60
(1858); Gibson v. Vetter, 162 Pa. 26, 29
Atl. 292 (1894).
37. Hewett v. Lewis. 4 Mackey (D C.) 10
(1885): Vigus v. O'Bannon. 118 111. 334, 8
N. E. 778 (1886): Rouss v. Goldgraber, 3
Neb. (Unoff.) 424, 91 X. W. 712 (1902); 2
Chamb., Ev., 1007, n. 3 and cases cited.
38. Bergeron v. Pamlico Ins, etc., Co, 111
X. C. 45, 15 S. E. 883 (1892); Woarms v.
Becker, 82 N. Y 7 . Supp. 1086, 84 App. Div. 491
( 1903) ; Ashley v. Henahan, 56 Ohio St 559,
47 N. E. 573 (1897) ; 2 Chamb., Ev., 1008.
39. Irby v. McCrae, 4 Desauss. (S. C.) 422
(1814).
40. McCord-Brady Co. v. Moneyhan, 59 Xeb.
593, 81' N. W. 608 (1900).
41. Peart v. Taylor, 2 Bibb. (Ky .) 556
(1812) ; Rhoades v. Selin, 4 Wash. C. C. 715
(1827).
42. Foster v. Foster, 1 Add. 462 (1823).
43. Camp's Estate, 134 Cal. 233. 60 Pac.
227 (1901); Johnson's Will, 40 Conn. 587
(1874); Anderson v. Irwin, 101 111. 411
(1882) ; Coddington v. Jenner, 57 X. J. Eq.
528, 41 Atl. 874 (1898) : Dudley v. Wardner,
41 Vt. 59 (1868): Thomas v. Ribble (Va.
1896), 24 S. E. 241.
Certainty of knowledge on the part of the
witness is an essential clement of satisfactory
testimony, Graham v. Chrystal, 2 Abb. App.
Cas. (X Y.) 263 (1865) (" thought he might
perhaps state " not enough) ; Riggs v. Tayloe,
1 Pet. (U. S.) 591, 600 (1828) ("vague,
uncertain recollection" excluded). See 2
Chamb., Ev., 1009. n 3 and cases cited.
44. Abstracts as Evidence. Registry cop-
ies are, naturally, when available, the usual
249
SCOPE OF BUKDEN.
stance 45 or tenor 4G of the docunieut in all material details. 47 The rule ap-
plies to any document shown to have been executed 48 so far as the contents
are relevant to the issue. 49
Same; Intension of Evidence. Absolute reproduction of the exact language
is not required 5 " nor would such precision of statement be convincing. That
effect should be given to parol evidence of a lost instrument 51 such as a will, 52
which is required to be in writing, the substantive law requires that the judge
should act only upon precise and convincing evidence 0;{ and the provisions
are the same where the attempt is made to supply a lost record. 54
method of proof of lost or mutilated instru-
ments. 1084 et seq. When the registry
law provides for recording merely an abstract,
the court is at liberty to decline receiving it if
there is better available evidence or the evi-
dence furnished is not sufficiently clear and
complete. Xew Jersey R. & T Co. v. Suy-
dam, 17 X. J. L. 25, 59 (1839). See also
2 Chamb., Ev., 1009, n. 4 and cases cited.
45. Edwards v. Rives. 35 Fla. 89, 17 So.
416 (1895) ; Ross v. Loomis, 64 Iowa 437, 20
X. W. 749 (1884); Camden v. Belgrade, 78
Me. 204, 3 Atl. 652 (1886) : Holmes v. Dep-
pert, 122 Mich. 275, 80 X. W. 1094 (1899) ;
Strange v. Crowley, 91 Mo. 287, 2 S. W. 421
(1886); Edwards v. Noyes, 65 X. Y. 125
(1875) ; U. S. v. McComb, 5 McLean ( U. S.)
286, 298 (1851); McLeod's Estate, 23 X. S,
154, 162 (1890); 2 Chamb., Ev., 1009, n.
5 and cases cited.
46. Thompson v. Thompson, 9 Ind. 323, 333
(1857); Peart v. Taylor, supra. Proof of
mere " similarity " is not sufficient. South
Chicago B Co. v. Taylor, 205 111 132. 68
X E. 732 ( 1903). See 2 Chamb., Ev., 1009.
n. 6 and cases cited.
47. Potts v. Coleman. 86 Ala. 94, 100, 5
So. ISO (188); Sturtevant v. Robinson, 18
Pick. (Mass.) 175, 179 (1836.1; Metcalf v.
Van Benthuysen. 3 X. Y. 424, 428 (1850):
(operative parts of the instrument must be
stated in substance). \\hetJier the affixing
of n seal must be affirmatively established,
see Pease v. Sanderson, 188 111 597. 59 X. E
425 (1900); Strain v. Fit/gerald. 128 X. C.
3!)6. 3S S: E. 929 M901) ; Williams v. Bass,
22 Yt. 352 (1850); Peters v. Reichenbach,
114 Wis. 209, 90 X W. 184 ( 1902) : 2 Chamb..
Ev.. 1009, n 7 and cases cited.
48. Xeely v. Carter. 96 Oa. 197. 23 S. E.
313 (1896) ; Montefiore v. Montefiore. 2 Add.
Keel. 354 (1824).
49. Dickey v. Malechi, 6 Mo. 177, 184
(1839); Sizer v. Burt, 4 Den. (X Y. 426
( 1847 ) . It must, however, affirmatively ap-
pear that the portions of the instrument not
proved to the tribunal do not materially
affect or modify the legal purport of these
portions of which satisfactory proof is fur-
nished Butler v. Butler, 5 Harr. (Del.)
178 (1849). Xo more definite rule can well
be established. Roe & McDowell v. Doe &.
Irwin, 32 Ga. 39, 50 ( 1861 ) ; Bell v. Young, 1
Grant (Pa.) 175 (1854). Less than this
would fail to present the certainty necessary
to warrant the court in acting. Perry v. Bur-
ton, 111 111. 138 (1884); Poague v. Spriggs,
21 Gratt. (Va.) 220,231 (1871). To require
more, would, in 'many instances, be prohibi-
tory. Anderson v. Irwin, 101 111. 411, 414
(1882).
50. Perry v. Burton. Ill 111. 138 (1884);
Thompson v. Thompson, 9 Ind. 323, 333
(1857).
51. In re Johnson, 40 Conn. 587 (1874);
Osborne v. Rich, 53 111. App. 661 (1894);
Loftin v. Loftin, 96 X. C. 94, 1 S. E. 837
( 1887) ; 2 Chamb., Ev., 1010, n. 2 and cases
cited.
52. Skeggs v. Horton, 82 Ala. 353. 2 So.
110 (1886) ; Kearns v. Kearns. 4 Harr. (Del )
83 (1843) ; Scott v Maddox. 113 Ga. 795, 39
S. E. 500 (1901: Dickey v. Malechi, 6 Mo
177, 184 (1839); 2 Chamb., Ev.. 1010, n.
3 and cases cited.
53. McDonald v. Thompson, 16 Colo. 13. 26
Pac 146 (1891); McCarn v. Kundall. Ill
Iowa 406. 8-2 X. W 924 ( 1900) ; Connor v.
Pushor. S6 Me 300, 29 Atl. 1083 (1894);
Wyckoff v Wyckoff, 16 X. J Eq 401 (1863) ;
Edwards v. Xoyes, 65 N. Y. 125 (1875) : Mc-
Manus v. Commow, 10 X. D. 340. 87 X. W.
8 (1901): Yan Horn v. Munnell. 145 Pa.
497, 22 Atl. 985 (1891): 2 Chamb.. Ev.,
1010. n. 4 and cases cited.
54. Com. v. Roark, 8 Cush. (Mass.) 210
411
BUEDEN OF EVIDENCE.
250
Reformation of Instrument. The requirement for convincing proof in
cases of fraud becomes especially clear where the logical necessity to which
reference has above been made/' 5 is reinforced by the caution imposed by
the positive, i.e., substantive, law for the protection of written documents.
Caution, for example, may well be felt in taking affirmative action where it is
proposed to cancel a deed, 50 laud grant/' 7 patent/'* release 5U or other sealed
instrument. 00 Similarly, a strong case must be made out to authorize the
court, in the exercise of sound reason, to rescind 61 or vary 2 a written con-
tract, on account of alleged fraud. This is especially true where the con-
tract has been executed. 03 The reformation of instruments, in general, will
only be ordered upon strong and satisfactory proof, 04 whether the ground of
relief prayed for is fraud 5 or mutual mistake. 06 It has been said that a
preponderance of evidence is not sufficient " though proof beyond reasonable
doubt need not be furnished. 08
(1851); Cunningham v. R. Co., 61 Mo. 33
(1876); Mandeville v. Reynolds, 68 N. Y.
528, 533 (1877) ; 2 Cbamb., Ev., 1010, n. 5
and cases cited. Proof beyond a reasonable
doubt is not required. Skeggs v. Horton,
supra.
55. See 993, supra.
56. Parlin v. Small, 68 Me. 289 (1878);
Eaton v. Eaton, 37 N. J. L. 108, 18 Am. Rep.
d6 (1874).
57. U. S. v. San Jacinto Tin Co., 125 U. S.
273, 8 S. Ct. 850, 31 L. ed. 747 (1888) ; Colo-
rado Coal, etc., Co. v. U. S , 123 U. S. 307, 8
to. Ct. 131, 31 L. ed. 182 (1887).
58. U. S. v. American Bell Telephone Co.,
167 U. S. 224, 17 S. Ct. 809. 42 L ed. 144
( 1896 ) ( beyond reasonable doubt ) .
59. De Douglas v. v. nion Traction Co., 198
Pa. 430,48 Atl. 262 (1901).
60. Pinner v. Sharp, 23 X. J Eq. 274
(1S72).
61. Conner v. Groh, 90 Md. 674, 45 Atl.
1024 (1900); Breemerch v. Linn, 101 Mich.
64, 59 X. W. 406 (1894).
62. Mayberry v. Xichol (Tenn. Ch. App.
1896), 39 S. W. 881.
63. Atlantic Delaine Co. v. James, 94 U. S.
207, 24 L. ed. 112 (1876).
64. Cox v. Woods. 67 Cal. 317. 7 Pac. 722
(1885); Connecticut Fire Ins. Co. v. Smith.
10 Colo. App. 121. 51 Pac. 170 (1897);
Muller v. Rhuman. 62 Ga 332 (1879) : Suth-
erland v. Sutherland. 69 III. 481 M873):
Tufts v. Lamed. 27 Iowa 330 MS69) : Herman
Amer. Ins Co. v. Davis, 131 Mass. 316
(1881) : Bartlett v. Brown. 121 Mo. 353. 25 S.
W. 1108 (1894); Mead v. Westchester F.
Ins. Co., 64 N. Y. 453 (1876); Rothschild v.
Bell, 10 Ohio Dec. (Reprint) 176, 19 Cine.
L. Bui. 137 (1887); Koen v. Kearns, 47 W.
Va. 575, 35 S. E. 902 (1900): 2 Chamb.,
Ev., 1011, n. 10 and cases cited.
65. Keith v. Woodruff, 13(5 Ala. 443, 34
So. 911 (1902); Xeal v. Gregory, 19 Fla.
356 (1882); Habbe v. Viele, 148* Ind. 116,
45 X. E. 783, 47 X. E. 1 (1897); Burns v.
Caskey, 100 Mich. 94, 58 X. W. 642 (1894) ;
Martini v. Cristensen. 60 Minn. 491. 62 X.
W. 1127 (1895) : Xebraaka L. & T. Co v. Ig-
nowski, 54 Xeb. 398, 74 X. W. 852 (1898);
Allison Bros. Co. v. Allison, 144 X. Y 21, 38
X. E. 956 (1894): Kleinsorge v. Rohse, 25
Or. 51, 34 Pac 874 (1893) : Shattuck v. Gay,
45 Vt. 87 (1872) ; Kropp v. Kropp, 97. Wis.
137, 72 X. W 331 (1897) : Baltzer v. Raleigh,
etc, R. Co., 115 U. S 634, 6 S. Ct. 216. 29 L.
ed. 505 (1885) : 2 Chamb., Ev.. 1011, n 11
and cases cited
66. Stockbridge Iron Co. v. Hudson Iron
Co., 107 Mass. 290, 317 (1871): Seitz Brew-
ing Co. v Ayres. 60 X. J Eq. 190. 46 Atl 535
(1900) : Southard v. Cnrley, 134 N. Y. 148, 31
X. FJ. 330 (1892).
67. Warrick v. Smith. 36 Til. App. 619
(1889): Mikiaka v. Mikiska. 90 Minn. 258,
95 X W 910 (1903): Devereux v. Sun Fire
Office. 4 X. Y. Supp 655, 51 Hun 147 ( 1889) :
2 Chamb.. Ev., 1011. n. 13 and cases cited
68. Miller v. Morris. 123 Ala 164, 27 So.
401 HS9S) ; Crockett v. Crockett. 73 Ga
647 (1884): Southard v. Cnrley. siiprn : Ja-
maica Sav. Bank v. Taylor, 76 X. Y. Supp. 790
(1902).
251
SCOPE OF BUBDEX.
Reformation of Absolute Deed into Trust or Mortgage. Equity requires
that evidence beyond all reasonable controversy be furnished as a basis for
turning a deed absolute on its face into a mortgage. 69 In like manner a parol
trust in lauds can only be declared upon satisfying the conscience of the court
by such evidence as leaves no legitimate doubt in his mind. 7u Evidence be-
yond a reasonable doubt will not be required. 71 The rule is the same in
relation to a trust in personal property 72 or to show that a gift of land was
encumbered by a trust. 73
Specific Performance. Equity requires that specific performance of a parol
contract relating to the sale of lauds 74 which is within the statute of frauds, 75
should be decreed only upon evidence satisfactory to the conscience of the
court. This has been understood as requiring a high degree of probative
force. Specific performance of a parol ante-nuptial agreement, 76 of a parol
contract to make a will disposing of real estate 7T and other parol agreements,
such as those to purchase personal property, 78 to assign choses in action, 79
to guarantee against fire, death or other casualty 80 and the like, demands that
a clear and satisfactory affirmative case should be submitted.
Substitutes for Documents. Where the substantive law prescribes that
a conveyance of laud shall be by deed, strong evidence will be required to
give effect to any substitutes for a deed, as where the effort made is to give
69. \\orley v. Dryden, 57 Mo. 226 (1874) ;
Wilde v. Homan, 58 Xeb. 634, 79 X. W. 546
(1899); Sid way v. Sidway, 7 X. Y. Supp.
421 (1889); Lance's Appeal. 112 Pa. 456, 4
Atl. 375 (1886) ; 2 Chamb., Ev., 1012, n. 1
and cases cited
70. Emfinger v. Emfinger. 137 Ala. 337. 34
So. 346 (1902); Rice v Rigley, 7 Idaho 115,
61 Pac. 290 (1900); Moore v. Wood, 100
111. 451 (1881): Maple v. Xelson, 31 Iowa
322 (1871): Burleigh v. White. 64 Me. 23
(1874): Brinkman v. Sunken. 174 Mo. 709,
74 S. W 963 (1903): Grouse v. Frothing-
ham, 97 X. Y. 105 ( 1S84) : Smithsonian Inst.
v Meech. 169 JJ. S. 398, 18 S Ct. 396. 42
L. ed. 793 (1898) ; 2 Chamb., Ev., 1012, n.
2 and cases cited.
71. Sherrin v. Flinn, 155 Ind. 422, 5S X. E.
549 (IflOO) ; Doane v. Dunham, 64 Xeb. 135.
89 X. \V. 640 i 1902 ) : King v. Gilleland. 60
Tex. 271 (1883).
72. Allen v. Withrow, 110 U. S. 119, 3 S. Ct.
517, 28 L. ed. 90 (1884).
73. 'Lemon v. Wright. 31 Ga. 317 (I860).
74. Seitman v. Seitman. 204 111. 504. 68 X.
E. 461 (1903): Wylie v. Charlton. 43 Xeb.
840, 62 X. W. 220 i H95) : Moore v. Galupo.
65 X. J. Eq I!i4. ." Atl 628 H903) ; 2
Chamb., Ev., 1013, n. 1 and cases cited.
75. Higginbotham v. Cooper, 116 Ga. 741,
42 S. E. 1000 (1902) ; Wright v. Raftree, 181
111. 464, 54 X. E. 998 (1899); Gibbs v.
Whitwell, 164 Mo. 387, 64 S. W. 110 (1901) ;
Winne v. Winne, 166 X. Y. 263, 59 X. E. 832,
82 Am. St. Rep. 647 ( 1901 ) ; Sample v. Hor-
lacher, 177 Pa. 247, 35 Atl. 615 (1896):
White v. Wansey. 116 Fed. 345, 53 C. C. A.
634 -(1902) : McCully v. McLean, 48 W. Va.
625, 37 S. E. 559 (1900); 2 Chamb., Ev.,
1013, n. 2 and cases cited.
76. In re Krug, 196 Pa. 484, 46 Atl. 484
(1900).
77. McElvain v. McElvain, 171 Mo. 244, 71
fc>. W. 142 (1902): Gall v. Gall. 19 X. Y.
Supp. 332, 64 Hun 600 (1892) : Richardson v.
Orth. 40 Or 252, 66 Pac. 925, 69 Pac. 455
(1901): Hennessy v. Woohvorth. 128 U. S.
438. 9 S. Ct. 109. 32 L ed 500 (1888): 2
Chamb.. Ev.. 1013. n. 4 and cases cited.
78. Farley v. Hill. 150 T S. 572. 14 S. Ct
186. 37 L. ed. 11S6 (1893).
79. Rockecharlie v. Rorkecharlie (Va.
1898). 29 S. E. 825: Dalxell v. Dueber Watch-
Case Mfg. Co.. 149 U. S. 315, 13 S. Ct. 886.
37 L. ed. 749 (1893).
80. McCann v. Aetna Ins. Co.. 3 Xeb. 198
(1874' : Xeville v. Merchants', etc., Mut. Ins.
Co., 19 Ohio 452 (1848).
BURDEN OF EVIDENCE.
effect to a parol gift of lands. 81 While the policy of the law limits the general
power of an owner of property to make a valid disposition of it to take effect
upon his decease to a will executed with certain formalities, it does not ex-
clude certain other special forms of transfer, which attain the same general
result. But in cases where the court is asked to carry out such an arrange-
ment, as a donatio causa mortis s2 or a nuncupative will, 83 the tribunal is
justified and, indeed, as a sound exercise of the reasoning faculty, frequently
required, to insist that a satisfactory and convincing case be presented.
Fraud. In cases involving allegations of fraud, the rule is as stated, viz.,
that when fraud is involved in a civil case it need be proved only by a fair
preponderance of the evidence, 84 and proof beyond a reasonable doubt is not
required. 85 But in a matter involving honesty and reputation the court,
judge and jury alike, will proceed with caution, 86 a mere suspicion 87 being in-
sufficient. Clear and convincing proof is, therefore, needed in order to estab-
lish fraudulent conduct. 88 The same idea is, probably, intended to be con-
veyed in the statement that there is a presumption in favor of honesty and
fair dealing, 89 so far as anything further is intended than a mere reference to
pleading on the burden of evidence. 90
412. Scope of the Burden of Evidence ; Criminal Cases In criminal cases
the familiar rule requires that each material allegation of the government's
81. Jones v. Tyler, 6 Mich. 364 (1859);
Erie, etc., R. Co. v. Knowles, 117 Pa. 77,
11 Atl. 250 (1887). Proof beyond reasonable
doubt has been required Poullain v. Poul-
lain, 76 Ga. 420. 4 S. E. 02 (1886)
82. Woodburn v Woodburn, 23 Jll App.
289 (1886); Buecker v. Carr, 60 N. J. Eq.
300, 47 Atl. 34 (1900) : Grymes v. Hone, 49
N. Y. 17. 10 Am. Rep. 313 (1872) ; 2 Chamb.,
Ev., 1014, n. 3 and cases cited.
83. Lucas v. Goff, 33 Miss. 629 (1857).
The rule has been limited to a requirement
that all circumstances raising legitimate sus-
picions should be satisfactorily explained.
Lewis v. Merritt, 113 N. Y. 386, 21 N. E.
141 (1889); Jamaica Sav Bank v. Taylor,
76 X. Y. Supp. 790, 72 App. Div. 567 ( 1002).
It has been required that the evidence should
be " free from uncertainty." Citizens' Sav.
Hank v. Mitchell. 18 R. T. 739, 30 Atl. 626
(1894). "Beyond doubt." Whalen v. Mil-
holland. 89 Md. 199, 43 Atl. 45, 44 L. R. A.
208 (1899).
84. Kingman v. Reinemcr, 166 Til. 208, 46
X. E. 786 (1897^: Gordon v. Parmelee. 15
Gray (Mas.) 413 (I860): Gumbera v.
Trench. 103 Mich. 543. HI X. W. 872 H805) :
Bauer Grocery Co. v. Sanders, 74 Mo. App.
657 (1898); Freund v. Paten. 10 Daly (X.
Y.) 379 (1882); Young v. Edwards, 72 Pa.
257 (1872) ; 2 Chamb., Ev., 1015, n. 1 and
cases cited.
85. Hanscom v. Drullard, 79 Cal. 234, 21
Pac. 736 (1889) ; Turner v. Hardin, 80 Iowa
691, 45 N. W. 758 (1890) ; Sommer v. Oppen-
heim, 44 N. Y. Supp. 396, 19 Misc. 605
(1897) : Dohmen Co. v. Niagara F. Ins. Co.,
96 Wis. 38, 71 N. W. 69 (1897) ; 2 Chamb.,
Ev., 1015, n. 2 and cases cited.
86. Watkins v. Wallace, 19 Mich. 57
(1869).
87. Toney v. McGehee, 38 Ark. 419 (1882) ;
Watkins v. Wallace, supra.
88. Schroeder v. Walsh, 120 111. 403, 11
N. E. 70 (1887); Henry v. Henry, 8 Barb.
UN'. Y.) 588 (1850) ; Dohmen Co. v. Niagara
j?. Ins. Co., supra; King v. Davis, 16 X. Y.
Supp. 427 (1891) But sec Coit v. Churchill,
61 Iowa 296, 16 X. W. 147 (1883).
89. Bixby v. Carskaddon, 55 Iowa 533, 8
X. W. 354 (1881); Jones v. Greaves 20
Ohio St. 2, 20 Am. Rep. 752 (1874); Kaine
v. Weigley, 22 Pa. 179 (1853): 2 Chamb.,
Ev.. 1015. n. 6 and cases cited.
90. Decker v. Somerset Mut. F. Ins. Co., 66
Me. 406 (1877).
253 EFFECT OF PRESUMPTIONS. 413
claim should be established beyond a reasonable doubt 91 though the require-
ment applies to the case as a whole rather than to its constituent parts, or any
particular set of facts. 92 Serious doubt exists as to whether such a phrase can
really be made clearer to the mind by dint of attempted definition and ex-
planation, although many attempts have been made, with greater or less suc-
cess, to explain that which, so far as intelligible at all seems already well
understood. 93 " It needs a skillful definer who shall make the meaning of
the term ' beyond a reasonable doubt ' more clear by the multiplication of
words." 94 The enchanced weight of proof demanded is, as compared to the
burden imposed in civil cases, 95 a concession to the increased inertia which a
court may reasonably feel in view of the greater seriousness in consequences
of criminal prosecutions as distinguished from civil actions.
Grades of Offenses. Even among criminal cases, there is an obvious dif-
ference in the nature of the consequences which will follow the affirmative
action of the court. 96 The proof must warrant the action asked. 97
413. Effect of Presumptions. Like the " burden of proof," the presump-
tion of law has both a procedural and an evidentiary aspect. It is the pro-
visional assumption of procedure that an inference of fact has a prima facie
force. Relating, therefore, as it does, to the evidentiary value of a fact or
set of facts, a presumption of law has no effect upon the position of the
burden of proof, properly so-called, which is not itself dependent upon logic
or the exercise of the reasoning faculty. The sole relation of the presumption
of law is with the burden of evidence which, at least provisionally, it operates
to discharge as to the point covered by it. This it is the more important to
91. 408, 412, supra; 2 Chamb., Ev., of the charge." Com. v. Webster, 5 Cush.
987, 9!)6a. 1016. (Mass.) 295, 320 (1850). "Proof 'beyond
92. Henry v. People, 198 111. 162, 65 X. E. reasonable doubt ' is not beyond all possible
120 (1902); State v. Gleim, 17 Mont. 17, or imaginary doubt, but such proof as pre-
41 Pac. 998 (1895); Morgan v. State, 51 Neb. eludes every reasonable hypothesis, except
672, 71 X. W. 788 (1897); 2 Chamb., Ev., tbat which it tends to support. It is proof
1016, n 2 and cases cited. Contra: State to a 'moral certainty,' as distinguished from
v. Cohen, 108 Iowa 208, 78 X. \V. 857 (1899) ; an absolute certainty. As applied to a ju-
State v. Flemming, 130 X. C. 688, 41 S. E. dicial trial for crime the two phrases are
549 (1902). synonymous and equivalent." Com. v. Coet-
93. People v. Stubenvoll, 62 Mich. 329, 28 ley, 118 Mass. 1 (1875)
X. \V. 883 (1886) ; State v. Sauer, 38 Minn. 95. 408, 409 supra: 2 Chamb., Ev..
438, 38 X. W. 355 ( 1888) ; Buel v. State. 104 987, 996.
Wis. 132. 80 X. W. 78 (1899): 2 Cliamb.. 96. Decker v. Somerset Mut. F. Ins. Co.,
Ev., 1016, n. 3 and cases cited. ti6 Me. 406 (1877).
94. Hoffman v State, 97 Wis. 576. 73 X. 97. The rule has been stated, in a some-
\V. 52 (1897). Failure of proof beyond rea- what misleading way. to the effect that "in
sonable doubt has been defined as being ' that proportion as the crime imputed is heinous
state of the case, which, after the entire com- and unnatural, the presumption of innocence
parison and consideration of all the evidence. grows stronger and more abiding." Conti-
leaves the minds of jurors in that condition nental Ins. Co v. Jachnichen, 110 Ind. 59, 10
that they cannot say that they feel an abiding X. E. 636. 59 Am. Rep. 194 (1886).
conviction, to a moral certainty, of the truth
413 BUBDEN or EVIDENCE. 254
observe for the reason that it is commonly said that " a presumption of law
shifts the burden of proof." 98
Burden of Proof. For reasons stated above," the burden of proof properly
so called, is not affected in the least by the creation of a presumption of
law. 1
Burden of Evidence. Tpon the burden of evidence, however, the rules of
several branches of substantive law requiring that certain definite inferences
of fact shall have a prima facie quality has of necessity a very important effect.
In fact it is the appropriate function of a so-called " presumption of law " to
confer this prima facie quality upon these inferences of fact. 2 Pro tanto,
therefore, the establishment of a presumption of law by proof of facts from
which it arises, sustains the burden of evidence and, so far as it extends,
shifts it to the opposite side. a
98. Ficken v. Jones, 28 Cal. 618 (1865) ; 55 Am. Rep. 53 (1885) ; Ceveland, etc., R. Co.
Kitner v. Whitlock, 88 111. 513 (1878) ; Nico- v. Newell, 104 Ind. 264. 3 X. E. 836 (1885) ;
demus v. Young, 90 Iowa 423, 57 X. W. 906 Holmes v. Hunt, 122 Mass. 505, 514, 23 Am.
(1894); Rosenthal v. Maryland Brick Co.. Rep. 381 ( 1877) ; J. D. Marshall Livery Co. v.
61 Md. 590 (1883); State v. Mastin, 103 Mo. McKelvy, 55 Ao. App. 240 (1893) ; Heine
508, 15 S. W. 529 (1890): Bayliss v. Cock- mann v. Heard, 62 X. Y. 448 (1875); 2
croft, 81 N. Y. 363 (1880); Maurice v. De- Chamb., Ev , 101S. n. 2 and cases cited,
vol, 23 W. Va. 247 (1883); Lawrence v. 2. State v. Sattley. 131 Mo 464, 33 S. W.
Minturn, 17 How. (U. S.) 100, 58 L. Ed. 58 41 (1895) ; Smith v. Asbell, 2 Strobh. (S. C.)
(1854) ; 2 Chamb., Ev., 1017, n. 2 and cases 141, 147 (1846) ; 2 Chamb., Ev., 1019, n.
cited. 1 and cases cited.
99. 395, supra; 2 Chamb., Ev., 938 et 3. Alabama G. E. R. Co. v. Taylor, 129 Ala.
seq. 238, 29 So. 673 (1901).
1. Pease v. Cole, 53 Conn. 53, 22 Atl. 681,
CHAPTER XIII.
PRESUMPTIONS; INFERENCES OP FACT.
Presumptions; classification of, 414.
Inferences of fact: rex ipxa loquitur, 415.
inference of continuance, 416.
nature of subject matter, 417.
legal results, 418.
legal status and standing, 419.
life, 420.
mental conditions, 421.
personal or business relations, 422.
Inferences of regularity; human attributes; physical, 423.
mental or moral, 424.
business affairs, 425.
official business: mail service, 426.
rebuttal of inference of receipt from mailing, 42T.
inference rebuttable. 428.
telegrams statutes, 429.
Omnia contra spoliatorem, 430.
spoliation a deliberative fact, 431.
spoliation as an insult to the court, 432.
fabrication (a] witnesses, 433.
(&) writings, 434.
suppression (a) witnesses: failure to call, 435.
failure to testify, 436.
removal or concealment, 437.
probative force of inference, 438.
(Z>) writings destruction. 430.
failure or refusal to produce, 440.
refusal to produce on demand, 441.
mutilation, alteration, etc., 442.
reaZ evidence. 443.
414. Presumptions ; Classification of. 1 As an inference, a presumption is
based upon lojric. the experience of mankind: as an assumption, it is based
upon or reflated hy either m substantive law or (2) administration. 2
other word-, under the -eneral term " presumption " nro arrmiped three di<
1. 2 Chan.berhm,e. Evidence, 1026. 2. 147 supra; 1 Chamb., Ev., 332 et seq.
255
415
PBESUMPTIOXS ; INFERENCES OF FACT.
256
tinct, though cognate, matters: (1) Inferences of Fact, (2) Presumptions or
Assumptions of Law, (-j) Assumptions of Administrations. Outside this
classification, but receiving the appellation of " presumptions/' is a class of
maxims, rhetorical paraphrases of rules of law more correctly stated in an-
other form, commonplaces of jurisprudence, and the like, to which the designa-
tion of (4) Pseudo-Presumptions seems apprepriate. 3
415. Inferences of Fact; Res Ipsa Loquitur.^ When used in its primary
and original siguiticance ** (and this is the only sense in which it has any
proper relation to the law of evidence) all presumptions are of fact. The
relation spoken of as a " presumption " or probable inference of fact is that
which exists between a factum probans and the factum probandum. 1 As be-
tween themselves, the two facts, factum probans and factum probandum, are
said to be probatively or logically relevant* The mental process by which this
relevancy is perceived and made effective for purposes of proof is that of
inference; which when probable is properly spoken of as a presumption. 9
3. 2 Chamb., Ev., 1020
4. 2 Chamberlayne, Evidence, 1027-1029.
5. In its broad acceptance a presumption is
a strong or probable inference. Douglass
v. Mitchell, 35 Pa. 440, 443 (1860): Austin
v. Bingham. 31 Vt. 577, 581 (1850).
6. Philadelphia City Pass. K. Co. v. Hen-
rice, 92 Pa. 431, 37 Am. Rep. 699 ( ISSIM
7. 34, supra; 1 Chamb., Ev., 51. "A
presumption of fact is an inference which a
reasonable man would draw from certain facts
which have been proved to him. Its basis is
in logic: its source is probability." Liverpool
& L & G Ins. Co. v. Southern Pac Co.. 125
Cal. 434 (1809). "A presumption of fact is
an inference of the existence of a certain fact
arising from its necessary and usual con-
nection with other facts which are known.''
Roberts v. People. Colo. 458, 13 Pac. 630
(1886): Lane v Missouri Pac. Ry. Co., 132
Mo. 4, 33 S. \V. 645 (1895): Hilton v. Ben-
der. 69 N V. 75, 82 ( 1S77 i : Home Ins. Co. v.
Weide. 78 U. S. (11 Wall.) 438. 20 L. ed.
197 (187H. "Presumptions of fact are but
inferences drawn from other facts and cir-
cumstances in the case, and should be made
upon the common principles of- induction.
U S v Griego. 11 X. Mcx. 302. 72 Par. 20
(1002) : Dietrich v. Dietrich. 112 X. Y Supp.
968. 128 App. Div 564 (1008 i. " A presump
tion of fact is a mere inference from certain
evidence, and, as the evidence changes, the
presumption necessarilv varie^ " Chicago,
etc., Ry Co. v. Bryant, 65 Fed. 969, 13 C. C.
A. 249 (1895).
Probative force of inferences of fact.
" Presumptions of fact have been classified by
text writers and judicial decisions as strong,
probable and slight. When a fact proved al-
ways accompancis a fact sought to be proved,
it gives rise to a strong presumption that
may control a jury in their investigation.
When the fact proved usually accompanies
the fact sought to be proved a probable pre-
sumption arises Slight presumptions, which
arise from the occasional connection of dis-
tinct facts, are generally disregarded by a
jury." U. S. v. Sykes, 58 Fed. 1000 (1893).
See 2 Chamb., Ev., 1027, n. 3 and cases
cited.
8. The term presumption of fact in this
connection designates the inference, based
upon experience, that an unknown fact exists
because another, which usually, in common
experience, accompanies or is connected with
it, has been shown to exist Graham v.
Badger, 164 Mass. 42. 41 X. E. 61 (1895);
Com. v. Frew. 3 Pa. Co. Ct. 402 (1886):
t". S. v. Searcy. 26 Fed 435 M885). See
36. .spm; 1 Chamb.. Ev.. 50.
9. Kodan v. St. Louis Transit Co.. 207 Mo
302. H).-, S W. 1061 (1007): 2 Chamb. Ev..
1027. n. 5 and cases cited. The term "pre-
sumption of fact '' connotes the idea that the
inference is one which naturally or spon-
taneoiislv suggests itself to' the mind. O'Gara
v. F.isenlnhr. 38 X. V. 206. 200 (1868);
Tanner v Hughes, 53 Pa. 289 (1866).
257
RES IPSA LOQUITUR.
415
Two facts are relevant when the existence of one raises a presumption as to
the existence of the other. 10
Of this class are the presumptions of negligence from the results of certain,
actions usually spoken of as the doctrine of res ipaa loquitur. 11
10. " Presumptions oi. facts are, at best, but
mere arguments, and are to be judged by the
common and received tests of the truth of
propositions and the validity of arguments."
Lawhorn v. Carter, 11 Bush (Ky.) 7 (1874).
Negligence in Meat Market. There is no
preemption of negligence against the owner
of a meat market from the fact that the
plaintiff slipped on a piece of meat on the
tloor where there is nothing to show how the
meat got there or how long it had been
there where the floor was constantly being
swept by a man employed for that purpose.
Norton v. Hudner, 213 Mass. 257, 100 N. E.
540, 44 I.. R. A (X. S.) 79 (1913).
The burden of proof is sustained in an ac-
tion for selling unfit food by showing that
the food sold was diseased and caused the
death of the decedent and it is not neces-
sary to show knowledge of the defendant of
the condition of the food, ^tate v. Rossman.
93 Wash. 330. UN Pac. 349, L. K. A. 1917 B
1276 (1916).
11. Doctrine of res ipsa loquitur applica-
ble. The bursting of a water tank in itself
proves negligence under the doctrine of res
ipsn loquitur. Wigal v. Parkersburg, 74 W.
Va 25, 81 S. E. 554. 52 L. R. A. (X. S.) 465
(1914).
A presumption of negligence of the em-
ployer arises from an unexplained sudden
starting of a machine. Chiuccariello v.
Campbell, 210 Mass. 532. 96 X. E. 1101. 44
1,. R. A. (X. S) 1050 (1912). The fact
that the head of a mallet flew off while
it was being used as intended in an amuse-
ment park shows negligence under the
doctrine of res ipsa loquitur. V.'odnik v.
Luna Park Amusement Co., 69 Wash. 63S. 125
Pac. 941. 4-2 L. R. A. ( X. S.) 1070 <1912i
The doctrine of res ipsa In^it'tiir applies
where the roof of a box car is torn off by a
wind not strong enough to prevent a person
standing on the top of the moving train.
Ridge v. Xorfolk Southern R. Co.. 167 X. C.
510, 83 S. E 762. L. R. A. 1914 E 215 (1914).
The fact that a wall fell after a fire is
print a farip evidence of negligence under the
doctrine of re* ipsa lof/iiitur. where the wall
was left standing for more than a month
alter the i.re. Hall v. Gage, 116 Ark. 50, 172.
IS. W. 833, L. R. A. 1915, 704 (1914),
The mere bursting of an electric light bulb
in a street car does not place on the com-
pany the burden of proof sinCe the accident
may have happened through some cause be-
yond the control of the company. It was as-
sumed that the rule of res ipsa loquitur ap-
plies to this case but the court points out
that this rule simply provides evidence and
does not alter the burden of proof. It simply
requires the defendant to explain and his ex-
planation may leave the matter in equipoise
in which case the defendant would be entitled
to a verdict because the plaintiff had failed
to prove his case by the weight of the evi-
dence. Hughes v. Atlantic City, etc., R. Co.,
85 X. J. L 212. 89 Atl. 769, L. R. A. 1916 A
927 and note (1914). The unexplained
presence on the public highway of a run-
away horse unattached raises a presump-
tion of negligence on the part of the
owner. Dennery v. Great Atlantic & Pa-
<-ific Tea Co., 82 X. J L. 517, 81 Atl 861, 39
L. R. A. (X. S.) 574 (1911). Presumption
of negligence from proof of explosion, see
note, Bender ed.. 122 X. Y. 131. Presumption
of negligence from injury, see note. Bender
ed., 114 X. Y. 463.
Doctrine of res ipsa loquitur not applica-
ble. A passenger injured cannot invoke the
rule of res ipsa loquitur against the carrier
unless something unusual happens and the
mere fact of injury is not enough. Pointer v.
Mountain R. Co.. 269 Mo. 104. 189 S. W. 805,
L. R. A. 1917 B 1091 (1916). The jolting or
jerking of a train which causes the conductor
to fall is not a case for the application of the
doctrine of res ipsa Intuit i<r, as this is not
enough of itself to show negligence. Hunt v.
Chicago. Burlington & Quincy R. Co.,
Iowa. 165 X. W. 105, L. R. A. 191f> B 369.
The doctrine of res ipsa loquitur does not
apply where cars on a siding escape on to the
main line where there is no evidence what
caused them to start Denver, etc.. R. v. Ash-
ton-White-Skillicorn Co.. 49 Utah 82. 162
Pac. 83. T.. R. A. 1917 C 768 (1916K The
mere dropping of sparks from an elevated
railway does not of itself prove negligence in
416
PRESUMPTIONS ; INFERENCES OF FACT.
258
Inferences are Eebuttabh. It is part of the very definition of a presump-
tion that it is rebuttable. 12 An irrebuttable or conclusive presumption would
be a contradiction in terms. 13
".A'o Presumption on a Presumption."- -There can be, in the great major-
ity of cases, no presumption upon a presumption. 14 On the contrary, the fact
used as the basis of the inference, the terminus a quo, so to speak, must be
established in a clear manner, devoid of all uncertainty. 15
416. [Inferences of Fact] ; Inference of Continuance. 10 It is said that there
is a " presumption against change/' A given state of affairs being shown to
> exist, it will be presumed to continue for a reasonable time. 1 ' Where the
subject-matter is of a permanent character but slightly subject to or affected
by change of condition, a very considerable time may elapse and yet leave the
suggestion that it existed at a later time because it did so at an earlier period,
one of rational probative force. 16 On the other hand, establishing the existence
the company, as the mere lawful doing of an
act permitted by statute does not create lia-
bility for injury caused in so doing. Carney
v. Boston Elevated R. Co., 212 Mass. 170, 98
X. E. 605, 42 L.- R. A. (N. S. ) 00 (1012).
The doctrine of res ipsa loquitur does not
apply to a defect in a highway to show negli-
gence in the city, as the defect may have
been caused by a very recent accident of
which the city bad no notice. Corbin v. Ben-
ton, irl Ky /4S3, 152 S. W. 241, 43 L. R. A.
(N. S.) 591 ( 1913). The doctrine of res ipsa
loquitur applied to machinery which does not
work right cannot be applied to show that be-
cause ice near the rail of a track presented a
straight edge this showed that the ice was
due to water cast by the engines. Eisentrager
v. Great Northern R. Co.. 178 Iowa 713. 100
N. \V. 311, L. R. A. 1917 B 1245 i 1016). The
doctrine of res iptta loquitur does not apply to
a case where a bottle tilled with carbonated
water exploded when the ice-chest in which it
was is opened on a hot day. This does not
show that the accident was caused by the
negligence of the bottler, but it may have
been caused by the change in temperature
when the ice-chest was opened. Wheeler v.
Laurel Bottling Works. Ill Miss. 442, 71 So.
743. L. R. A lOlfi E 1074 (1016).
12. Chillingworth v. Eastern Tinware Co.,
66 Conn. 306. 33 Atl. 1000 (1805)-. Donald-
son v. Donaldson. 142 111. App 21 (1008):
Morris v. McClavv. 43 Minn. 346, 46 N. W.
238 (1800): Williams v. Fourth Nat. Bank,
15 Okla. 477, 82 Par. 406 (1005) : 2 Chamb.,
Ev.. 1028, n. 1, and cases cited.
13. 470, infra; 2 Chamb., Ev., 1160
et seq.
14. Georgia Ry. & Electric Co. v. Harris, 1
Ga. App. 714, 57 * E. 1076 (1907): Globe
Ace. Ins. Co. v. Gerisch, 163 111. 625. 45 X. E.
563, 54 Am. St. Rep. 486 (1896); Atchison.
etc., R. Co. v. McFarland, 2 Kan. App. 662.
43 Pac. 788 ( 1896) : Huttig-McDermid Pearl
Button Co. v. Springfield Shirt Co., 140 Mo.
App. 374, 124 S. W. 1004 (1010); Lamb v.
Union Ry Co. of New York City, 105 N. Y.
260, 88 N. E. 371 (1900) : 2 Chamb., Ev., 1029,
n. I, and cases cited.
15. Duncan v. Chicago, etc.. Ry. Co., 82 Kan.
230. 108 Pac. 101 (1910) : U S. v. Ross, 92
I*. S. 281. 23 L. ed.. 707 (1875).
16. 2 Chamberlayne. Evidence, 1030-
1032.
17. Schander v. Gray. 149 Cal. 227, 86 Pac.
695 (1906): Sanford v. Millikin, 144 Mich.
311. 13 Detroit Leg. N. 171, 107 N. W. 884
(1906): In re Darrow's Estate, 118 N. Y.
Supp. 1082, 64 Misc. Rep. 224 (1900) : State
v Chittenden. 127 Wis. 468, 107 N. W. 500
( 1006) : 2 Chamb., Ev., 1030, notes 1 and 2,
and cases cited.
18. The operation of natural law furnishes
what may perbaps be deemed the maximum
force of the inference. An instance is fur-
nished by the uniform action of the tides It
is, for example, a fair inference of fact that
a constant shifting in the various inlets of
Rockaway Beach, or Long Island, in the state
of New York, shown to be going on at the
present time was in progress in 1725. San-
diford v. Town of Hempstead. 186 N. Y. 554,
259
INFERENCE OF CONTINUANCE.
416
of a purely transitory state or evanescent fact may fail to furnish any reason-
able mind the basis of an inference that the situation was in the same condi-
tion shortly after that time. The true inquiry in each case is at what point
in the past will evidence of the existence of a given fact or state of affairs
cease to be probative as to its existence at a later period. Or, to reverse this
statement, how loug may a state of affairs shown to exist at a given time be
presumed to continue ? 19 The established rule is that the court will infer
that a particular fact or set of facts continues to exist as long as such facts
usually, as a matter of experience, 20 have been found so to continue. 21
Administrative Assumptions. While the inference of continuance is, in
many cases, an inference of fact, in other cases this so-called " presumption "
is merely an administrative assumption of regularity. 22 Thus, it may prop-
erly be said that no administrative assumption is made that a fact shown
to have been in being at a particular time was in existence for any definite
period prior to that time, 23 or that it will continue to exist for any given
period in the future. 24 Where, however, a state of affairs is presented, as
profound intoxication, 25 insolvency, 26 and the like, 27 which obviously has re-
quired a certain length of time for its creation, the pre-existence of the state
or of its efficient causes may properly be assumed to have existed over a reason-
able interval in the past.
79 X. E 1115 (1906) [affirming 100 X. Y.
Supp. 76, 97 App. Div. 163 (1904)]. Where
the condition of a railing is in issue and evi-
dence of its condition immediately before the
accident is not available evidence may be re-
ceived of its condition within such a reason-
able time as will in the nature of the case
fairly tend to show its condition at the mo-
ment preceding the accident. English v.
Thomas. Okla. (1915), 149 Pac. 906, L R A.
1916 F, 1110.
19. Toledo, etc., R. Co. v. Smith, 25 Tnd.
288 (1865): Martin v. Fishing Ins Co., 20
Pick. (Mass.) 389, 32 Am. Dec. 220 (1838);
Ciernau v. Oceanic Steam Xav Co., 141 N. "\ .
588, 36 X. E. 739 (1894): 2 Chamb, Ev ..
1030, n. 4, and cases cited.
20. The law will not presume a thing con-
trary to the custom of men Bright v .J.
Bacon & Sons. 131 Ky. S48. 116 S. \V. 268.
20 L. R. A. (X. S.) 386 (1009)
21. Bludworth v Bray. .10 Fla. 437. 52 So.
057 i 1910) -. \\~heelan v Chicago, etc.. TC. Co..
85 Towa Ifi7. 52 X. W. 110 -1802) : McOraw
v. McGraw. 171 Mass 146. 50 X. E. 526
(1898): People v. McLeod. I Hill (X Y. )
377, 37 Am. Dec. 328 (1841) : Oiler v. Bone-
brake, 65 Pa. 338 (1870i : Kosminsky v.
Estes. 27 Tex. Civ. App 69. 65 S. W. 1108
( 1901 ) ; 2 Chamb., Ev., 1030. n. 6. and caaea
cited.
22. 422, infra; 2 Chamb., Ev., 1049
et seq.
23. Butler v. Henry, 48 Ark. 551, 3 S. W.
878 (1886) ; Windhaus v. Bootz, 92 Cal/617,
28 Pac. 557 ( 1891 ) ; Erskine v. Davis, 25 111.
251 (1861): Blank v Livonia, 79 Mich. 1,
44 N*. W. 157 ( 1889 ) : Jarvis v. Vanderford,
116 X. C. 147, 21 S. E 302 (1895): Cullen
v. Voss, 15 N. Brunsw. (Can.) 464 (1875);
2 Chamb.. Ev., 1031. n. 4. and cases cited.
24. Covert v. Gray. 34- How. Pr. (X. Y.)
450 (1865).
25. State v. Hubbard. 60 Towa 466, 15 X'.
W. 287 (1883).
26. Emmerich v. Heffernan, 58 X. Y. Super.
Ct 217, 9 X. Y. Supp. 801 (1890).
27. fiaulden v. Lawrence, 33 Ga. 159
(1862): Strong v. Lavrence. 58 Towa 55. 12
X W. 74 ilS82): Carlisle v. Rich, 8 X. H.
44 '1835) : 2 Chamb.. Ev.. 1031. n. 8. and
cases rited. Similarly, no inference of con-
tinuance in the future can be raised upon
proof of a state of things which is essen-
tially retroactive, in its nature or operations.
Ellis v. State, 138 Wis. 513. 119 X. W. 1110
(1909).
417,418 PRESUMPTIONS; INFERENCES OF FACT. 260
Length of Time. The inference of continuance, unless reinforced by ad-
ditional evidence 2S grows weaker with the lapse of time. It is strongest in
the beginning,"" and decreases in strength at various rates until it ceases en-
tirelv. It may even, perhaps, as in case of the continuance of life, be re-
placed by a presumption or inference to the contrary etfect. :i " The value of
property, real :;1 or personal is a function of so many variables that its con-
tinued unimpaired existence at any particular time can scarcely be predicated.
417. [Inferences of Fact] ; Nature of Subject-Matter/'- 2 The more imper-
manent the fact or state of affairs, the shorter will be the time during which
it will be assumed to continue." 1 ' 5 Per contra, the more enduring the nature
of the situation shown to exist, the longer will it be taken to maintain its
present condition.
Bodily $tatex or Conditions. Life will be *' presumed " to continue so
long as, under the conditions shown to exist, it would be reasonable to think
it should do so. In case of a young person, in good bodily health, exposed to
no particular contagion or other danger, the inference of continued bodily
existence would be strong. In proportion as any of these circumstances be-
comes changed or replaced by its opposite it would natural! y follow that a
decrease or even an elimination of probative force would occur. For the
same reasons, the inference of a continuance of a bodily state or condition, as
to health, 34 will lie strong or Aveak.
Habits. Bodily habits, such as those of drunkenness 35 once shoAvn to exist,
will, in the absence of conflicting evidence, be presumed to continue for a rea-
sonable time. In tbe same way, mental habits or those developed in carrying
on a business.' 5 " occupation or customary pursuit :> '~ will be given the degree
of continuance commonly manifested by such habits, under the conditions
shown to have existed in any given case.
418. [Inferences of Fact] ; Legal Besults. 3 * Legal results, such as the lay-
28. Howland v. Davis. 40 Mich. 545 (1879). 33. Hih v. Hank of America, 103 Cal. 525,
See also. Coghill v. Boring, 15 Cal. 213 37 Pac. 508 MSU4) ; McCain- v. Com (Pa.
(I860) 1886), 8 Atl. 45; 2 Chamb., Ev., 1033, n. 1,
29. Xash v. Classon, 55 111 App. 350 and oases cited
(1894): Bexar Bids., etc., Assoc. v. Seebe, 34. Creen v Southern Pac. Co.. 122 Cal.
(Tex. Civ. App. I, 40 S. \V. 875 (1807). 563, 55 Pac. 577 (1SH8) ; Draves v People, 97
30. Oliver v. Kll/.y. 11 Ala 032 (1847): 111. App. 151 i 1001 ) : 2 Chain!)., Ev., 1034.
Coodwin v Dean, 50 Conn 517 (1883): 2 35. McCraw v. McCraw, 171 Mass. 146, 50
Chamb., Ev.. 1032. n. 3. and cases cited. X. E 526 (1898) : Hoagland v. Canfield (N.
31. McDoiiL'ald v. Southern Pac. H. Co.. 9 Y. 1908). 1(10 Fed. 146.
Cal. App. 236. 98 Pac. 685 (1008^. Pre- 36. Leonard v. Mixon, 96 Oa. 239, 23 R. E.
sumption that condition once proved to exist 80. 51 Am. St. Rep. 134 (1895).
continues. ee note. Bender ed.. 126 X. Y. 545. 37. MoMahon v. Harrison. 6 N. Y. 443
32. 2 Chamberlayne, Evidence, 1033- (1852) (gambling) ; 2 Chamb., Ev., 1035.
1035. 38. 2 Chamberlayne, Evidence, 1036.
261
LEGAL STATUS.
419
out of a highway, 39 the ownership, 4 " possession 41 or seizin 42 of real estate 43
or personal property, 44 stand in the same position. Proper allowance should,
however, be made in all cases for the ephemeral nature 45 or the rapid sale 46
of any chattel or other personal property involved in the inquiry.
419. [Inferences of Fact] ; Legal Status and Standing. 47 Legal status, e.g.,
the citizenship of a person 4b or the incorporation of a company 49 will be in-
ferred to possess the continuance customary in such matters. In like manner,
coverture, 50 being unmarried 51 or other personal legal status, 52 once shown
to exist, w T ill be presumed to continue for a reasonable time.
Foreiyn Law. Where a rule of foreign law, written 53 or unwritten, 34
has been shown to the courts of a given forum 53 and has been judicially recog-
v. Whalen, 65 X. Y. 322
39. Beckwith
(1875).
40. Hohenshell v. South Riverside Land,
etc., Co., 128 Cal. 627, 01 Pac. 371 (1900);
Coleman, etc., Co. v. Rice, 105 Ga. 163, 31
S. E 424 (1898); Abbott v. Union Mut. L.
Ins. Co., 127 Ind 70, 26 X. E. 153 (1890):
Magee v. Scott, 9 Cush. (Mass.) 148, 55 Am.
Dec. 49 (1851); Lind v. Lind, 53 Minn. 48.
r>4 X \V 934 (1893) ; Flanders v. Merritt. 3
Barb. (X. Y.) 201 (1848): Stickney v, Stick-
ney, 131 U. S. 227. 9 S. Ct. 677. 33 L. ed.
136 ( 1889) ; 2 Chamb., Ev , 1036, n. 2, and
cases cited. An appropriation of water by a
public water supply company is presumed to
be permanent. Wagner v. Purity Water Co.,
241 Pa. 328, 88 Atl 484, L. R A. 1916 K 981
(1913).
41. Alabama State Ld. Co v. Kyle, 99 Ala.
474 (1892): Choisser v. People,. 140 111. 21,
29 X. E. 546 (1892): Janssen v. Stone, 60
Mo. App 402 (1894); Smith v. Hardy, 36
Wis 417 (1874); Laxarus v. Pbelps, 156
U. S. 202, 15 S. Ct. 271. 39 L. ed. 397 (1894) :
2 Chamb, Ev., 1036. n 3, and cases
cited.
42. Coblei.uh v. Young. 15 X. H. 493
(1844): Adair v. Lott, 3 Hill (X. Y.) 182
(1842): State v. Atkinson, 24 Yt. 448
(1852): Balch v. Smith, 4 Wash 4<>7. 30
Pac. 648 (1892H Thomas v. Hatch. 23 Fed.
Cap Xo 13.899. 3 Sumn i U. S. ) 170 (1838) ;
2 Chamb., Ev., 1036. n 4. and cases
cited.
43. l.eport v. Todd. 32 X. J. L. 124 i 1866) :
Bradt v Church. 39 Hun (X. Y ) 262 (1886) ;
Caffrey v. McFarland, 1 Phila (Pa.) 555
( 1855) : 2 Chamb., Ev., 1036. n. 5. and cases
cited.
44. Burgener v. Lippold, 128 111. App. 590
(1906); Buckley v. Buckley, 16 Xev. 180
(1881) ; Flanders v. Merritt, 3 Barb (N. Y.)
201 (1848) ; 2 Chamb., Ev., 1036, n. 6, and
cases cited. Occupation of tracks by a street
railway company stands in the same position.
Jennings v. Brooklyn Heights R. Co., 106
X Y. Supp. 279, 121 App. Div. 587
(1907)
45. Adams v. Clark, 53 X'. C. 56 (1860).
46. Bethel v. Linn, 63 Mich. 464, 474, 30
X. VY. 84 (1886).
47. 2 Chamberlayne. Evidence, 1037-
1041.
48. State v. Jackson. 79 Vt. 504, 65 Atl.
657 (1907).
49. Anglo-California Bank v. Field, 146 Cal.
644, 80 Pac. 1080 (1905).
50. Wilson v. Allen, 108 Ga. 279, 33 S. E.
979 (1899); Goodwin v. Goodwin, 113 Iowa
319, 85 N. W. 31 (1901); 2 Chamb., Ev.,
1037, n 3, and cases cited.
51. Gibson v. Brown, 214 111. 330, 73 X. E.
578 (1905).
52. Montgomery, etc., Plank-Road Co. v.
Webb, 27 Ala. 618 (1855).
53. Seaboard Air Line R. Co. v. Phillips,
117 Ga. 98. 43 S. E. 494 (1902); Miami
Powder Co. v. Hotchkiss, 17 111. App. 622
(1885) : State v Abheji'. 29 Vt. BOj 67 Am. Dec.
754 (1856) : 2 Chamb., Ev.. 1038, n. 1, and
cases cited.
54. In re Huss. 126 X. Y. 537. 27 X. E.
7S4. 1-2 L. R. A. 620 (1891); Babcock v.
Marshall. 21 Tex Civ. App. 145, 50 S W. 728
( 1 899 ) .
55. Bush v. Garner, 73 Ala. 162 (1882);
In re Huss, supra.
420 PKESUMPTIONS ; INFEBENCES OF FACT. 262
nized 56 or assumed by them to exist 5T in a sister state 58 or foreign country, 59
it will be assumed, in the absence of evidence to the contrary, that it has not
ceased to be the law.
Foreign Regulations. Where a foreign nation, state, municipal, 60 or busi-
ness corporation, 01 is shown to have established statutes, ordinances or other
regulations, their continued operation and effect will be inferred until reason
is shown to the contrary.
Official and Other Fiduciary Relations. The tenure of office under a state
or national 62 government or the holding by an individual of a position as an
officer in a public (i:i or private 64 corporation, will be assumed to continue to
the same extent that is usual in such cases. The relation of a given in-
dividual to some other trust 65 shows occasionally a still greater intrinsic per-
manence.
Qualification or Disqualification. A state of qualification or disqualifica-
tion oc for the discharge of any legal privilege, franchise, or function will be
assumed to continue until the contrary is shown, unless the facts constituting
the legal standing are inherently transitory.
420. [Inferences of Fact] ; Life. 67 Under the general presumption against
change, 68 human life once shown to exist, will, in the absence of evidence
to the contrary, be presumed to continue tt9 for a reasonable time. The test is
simply that of what is reasonable under all the circumstances ; 70 including
the inference of fact, if any, as to actual continuance, in case of a human
being of the age in question. 71 The presumption of life has, therefore, been
56. Stokes v. Macken, 62 Barb. (X. Y.) River Mfg. Co., 80 Conn. 37, 66 All. 775
145 (1861). (1907) ; Sisk v. American Central F. Ins. Co.,
57. Graham v. Williams, 21 La. Ann. 594 95 Mo. App. 695, 69 S. W. 687 (1902); 2
(1869). ' Chamb., Ev., 1040, n. 3, and cases cited.
58. Haynham v. Canton, 3 Pick. (Mass.) 65. In re Fisher's Estate, 128 Iowa 18, 102
293 (1825); People v. Calder, 30 Mich. 85 N. W. 797 (1905); Sawyer v. Knowles, 33
(1874); State v. Armstrong, 4 Minn. 335 Me. 208 (1851).
(1860) ; 2 Chamb., Ev., 1038, n 6, and cases 66. Esker v. McCoy, 5 Ohio Dec. (Reprint)
cited. 73, 6 Am. L. Rec. 694 (1878) (voter); Boll-
59. In re HUBS, supra. See also, Arayo v. ing v. Anderson, 4 Bast. (Tenri.) 550 (1874)
Currel, 1 La. 528, 20 Am. Dec. 286 (1S30). (judge) : 2 Chamb., Ev.. 1041.
0. Cleveland, etc., R. Co. v. Render. 6!) Ill 67. 2 Chamberlayne, Evidence, 1042.
App 262 (1896). 68. 416. supra; 2 Chamb. Ev.. 1030.
61. Paqui'n v. St. Louis, etc.. R. Co., 90 69. Martin v. Chicago, etc.. R. Co., 92 111.
Mo. App. 118 (1901) ; 2 ( liamb., Ev., 1030. App. 133 (1900) : Hyde Park v. Canton, 130
62. Doe d. Hoplcy v. Young. 8 Q B 63 Mass. 505 (1881); State v. Plym, 43 Minn
( 1845) : 2 Chamb.. Ev.. 1040, n. 1. and cases 385, 45 X. W. 848 (1890): Augustus v.
cited. Craves. 9 Barb. (X. Y.) 595 (1850); 2
63. Kaufman v. Stone. 25 Ark 336 (1869) : Chamb., Ev., 1042. n. 2. and cases cited.
Kinyon v. Duchene, 21 Mich. 498 (1870): 2 70. Pospy v Hanson. 10 App. Cas (D. C.)
Chamb. Ev., 1040. n 2. and cases 496 (1897): Sprigg v Moale. 28 Md. 497,
cited. 92 Am. Dec. 698 (1868)
64. Stafford Springs St. Ry. Co. v. Middle 71. Hyde Park v. Canton, supra.
263
MENTAL CONDITIONS,
421
said not only to continue for short periods, 72 for more extended intervals 73
but even up to the age of a hundred years. 74
421. [Inferences of Fact] ; Mental Conditions. 75 Mental conditions, such
as sanity 76 or insanity, 77 will be taken to continue according to their intrinsic
permanence or liability to alteration from subjective or outside influences.
Thus, to state an extreme case, the imbecility of old age will be presumed
to continue, in the absence of contrary evidence. 78 u The rule does not apply
to cases of occasional or intermittent insanity; 79 but it does to all cases of
habitual or apparently confirmed insanity, of whatever nature ; 8U even where
the existence of lucid intervals may have been shown. This proposition seems
well settled. hl The same rule may be put into the form of an assumption of
administration. 82
Mental States. Transient states of consciousness like intent S3 or inten-
tion S4 will be accorded vitality in accordance with their inherent strength or
V
72. Chicago, etc , R. Co. v. Keegan, 185 111.
70, 56 X. E 1088 (1900) (5 years); Rosen-
blum v. Eisenberg, 108 X. Y. Supp. 350, 123
App. Div. 896 (1908) (9 months) ; 2 Chamb.,
Ev., 1042, n. 7, and cases cited.
73. Willis v. Ruddock Cypress Co., 108 La.
255. 32 So. 386 (1902) (25 years) ; Dunn v.
xravis, 67 X. Y. Supp. 743, 6 App. Div. 317
(1900) (30 years) : In re Sherwood's Estate,
206 Pa. 465, 56 Atl. 20 (1003) (29 years) ;
2 Chamb., Ev., 1042, n. 8, and cases cited.
That a grantor is dead eighty years after he
acknowledged a deed has been assumed as an
administrative matter. 165 X. Y. 385. 59 X,
E. 135, 80 Am. St. Rep. 730 (IflOl), affirming
54 X. Y. Supp. 419, 35 App. Div. 39 (1898).
74. Matter of Bd. of Education, 173 X. Y.
321, 66 X. E. 11 (1903). So great an exten-
sion of the presumption is especially frequent
under the civil law. \Villett v Andrews. 51
La. Ann 486, 25 So. 391 (1899) -. 2 Chamb.,
Ev. 1042. n. 10, and cases cited
Absence. An absentee must be presumed
to be alive until his death is proved and he
will not be presumed dead until he i* one
hundred years old. So there is no presump-
tion of the death of an absentee who is if
alive ninety-eiht years old. Quaker Realty
Co. v Starkey. 130 La 281. 66 So 386. L R.
A 1015 D 176 (1914).
75. 2 Chamberlayne. Evidence. ? 1043-
1045
76. In re Briaham's Estate. 144 Towa 71.
120 X YV. 1054 (1909): West v. McDonald
(Ky. 1908), 113 S W 872.
77. Lilly v Waggoner. 27 Til. 395 (1862);
Beard v. Southern Ry. Co., 143 X. C. 137, 55
S. E. 505 (1906) ; 2 Chamb., Ev., 1043, n.
2, and cases cited.
78. Rogers v. Rogers (Del. 1907), 66 Atl.
374; Mason v. Rodriguez (Tex. Civ. App.
1909), 115 S. W. 868.
79. Branstrator v. Crow, 162 Ind 362, 69
X h. 668 (1904).
80. Hallohan v. Rempe. 120 X. Y. Supp.
901 (1910): State v. Wilner, 40 Wis. 304
( 1876) ; 2 Chamb., Ev., 1043. n. 5, and cases
cited.
81. Crouse v. Holman, 19 Ind. 30. 39
i 1862).
82. As where it is said that one who claims
insanity to have existed at a particular time
in one who has temporary fits of insanity,
Wooten v. State (Tex. Cr. App. 1907), 102
S. W. 416: or to establish the fact that one
chronically insane did a particular act in a
lucid interval. In re Kehler (X. Y. 1908),
159 Eed. 55. 86 C. C. A. 245: 2 Chamb.. Ev ,
1043. n. 8, and cases cited, is said* to have
the burden of proof, meaning burden of evi-
dence on the point. Proof of present insanity
grounds no inference as to its past existence.
Schander v Oray. 149 Cal. 227. 86 Pac 695
I 1!>06) As to effect of indication, see Stil-
/el v. Farley. 14S 111 App. 635 (1909)'; 2
Chamb.. Ev.. 1043
83 State v. Johns. 140 Iowa 125. 118 X. W.
295 (1908).
84. Oiler v Bonebrake. 65 Pa. 33^ HS70) ;
r,4 Mo. 367 (1877): 2 Chamb., Ev.. 1044s
n 2. and cases cited.
422
PRESUMPTIONS; INFERENCES OF FACT.
264
the permanence of the conditions out of which they arise or by which they
are accompanied and stimulated.
Mental or Moral Character. Character, meaning the actual sum of bodily,
mental arid moral habits, tastes and aptitudes, will be taken to continue in
accordance with the permanence and strength of the composite forces of which
it is a resultant. The same is true, mutatis mutandis, of any single trait
in this character, 85 as want of chastity. 66
422. [Inferences ol Fact] ; Personal or Business Relations.* 7 .Relations be-
tween persons, 88 whether as partners sy in a course of business dealing yo or ill
some other contractual ul connection, when once shown to exist, will be pre-
sumed to continue in accordance with the nature of such arrangements. Marital
cohabitation once established by evidence, will, for a reasonable time, be in-
ferred to continue.. 92 The rule is the same, whether the relation is one of
legitimate business or is unlawful or is even immoral in its nature. 93
Relations to Creditors. Relations to creditors, such as solvency, insolvency 94
or other financial conditions 95 will, it is inferred, continue within reasonable
limits, prescribed by experience. 96
Relations to Localities. What inference arises as to the continuance of
personal relations to places, as presence or residence in !4T or absence from ! ' 8 a
85. Sleeper v. Van Middlesworth, 4 Den Love v. Edmonston, 27 X. C 354 (1845); 2
(N.'Y. 1847) 431: State v. Chittenden, 112 (Jhamb., Ev., 1046. n. 4, and cases cited
Wis. 569, 88 N. VV 587 (1902); 2 Chamb.,
Ev., 1045, n. 1, and cases cited.
86. People v. Squires, 49 Mich. 487, 13 N.
VV. 828 (1882): Kerr v. U S. ( Ind. Terr.
1907),. 104 S. \V. 809.
92. Stoutenborough v. Rammel. 123 111.
App 487 ( 190r>).
93. Jones v. Jones. 45 Md. 144 (1876);
Cau.jolle v. Ferrie. 23 X. Y. 90 (1861) ; Read-
ing F. Ins., etc.. Go's Appeal, 113 Pa. 204,
87. 2 Chamberlayne, Evidence, 1046- 6 Atl. 60, 57 Am Hep. 448 i 1886) ; 2 Cliamb.,
1050.
88. Eames v Eames, 41 X H. 77 (1860) ;
Hilliard v. Wisconsin Life Ins. Co, 137 Wis.
208, 117 X W. 999 (1908).
Agency. There is a presumption of the
continuance of the relation of master and
servant and where a business is sold the bur-
den of proof is on those seeking to show notice
or knowledge of the servant of the new rela-
tionship. Benson v. Lehigh Valley Coal Co.,
124 Minn. 222, 144 X. W. 774, 50 L. T?. A.
(N. S.) 170 (1914).
89. Pursley v. Ramsey, 31 Ga. 403 (1860\ ;
Anslyn v. Franke, 11 Mo. App. 598 (1882);
Cooper v. Dedrick. 22 Barb (X. Y. 1856) 516;
2 Chamh., Ev , 1046. n. 2. and cases cited.
Ev., 1046, n. 6, and cases cited. Thus, im-
proper sexual relations between persons will
be inferred to continue in the absence of evi-
dence tending to establish the fact of change.
Caiijolle v. Ferrie. supra; Weidenhoft v.
Primm, 16 Wyo. 340. 94 Pac 453 (1908).
94. Wachsmuth v. Penn. Mut. L. Ins Co.,
147 111. App. 510 (1909); In re Brigham's
Estate, supra; Mullen v. Pryor, 12 Mo. 307
(1S4S) ; 2 Chamb.. Ev., 1047, n. 1, and cases
cited.
95. Wallace v. Hull, 28 On. 68 MS59) :
Scammon v Scammon, 28 X II. 419 (1854)
A definite indebtedness is under the same
rule. Carder v. Primm, 52 Mo. App. 102
(1892) -. Farr v. Pavne. 40 Vt. 615 (1868) ;
90. Hastings v. Brooklyn L. Ins Co.. 138 2 Cliamb., Ev . 1047, n 2, and cases cited
X Y 473, 34 X. E. 289 (1893): Brooks v
U S.. 146 Fed. 223, 76 C. C. A 581 (1906).
91. Burlington Tns. Co. v. Threlkeld, 60
Ark. 539, 31 S. W. 265 (1895); Hensel v.
M;ui 94 Mich. 563, 54 X. W. 381 (1893):
96. Donahue v. Coleman. 49 Conn 464
(1882). See also, Coghill v. Boring, 15 Cal
213 (1860).
97. Daniels v. Hamilton, 52 Ala. 105
;1^75): Xixon v Palmer, 10 Barb. (N Y.)
265 PHYSICAL ATTRIBUTES. 423
given locality, is a question merely as to what experience shows to be probable.
423. Inferences of Regularity; Human Attributes; Physical." Each indi-
vidual possesses or is possessed by the ordinary physical, mental or spiritual
qualities by which men as a class are generally inmienc-cd. 1 A given individual
will be presumed or inferred, as well as assumed or Taken, to have the ordinary
physical powers of sense-perception usual to persons of the same age, race
and other conditioning circumstances. The law presumes that a person possess-
ing good eyesight must have seen that which was within range of his vision,
if he gave attention and looked. 2 In like manner, the ordinary capability of
hearing will be assumed. 3
Capacity for Child-Bearing. The assumption of the existence of a capacity
for child-bearing at any period after its physical conditions exist is so fully
recognized that the sole issue presented in this connection is as to the date
of its termination. In the United States, it is assumed that except in ex-
treme age, 4 or when other strong invalidating circumstances are present, that
a woman is capable of giving birth to children at any period of her adult life. 5
The inference is especially strong where the presumption is reinforced by the
previous birth of children. 6 In England, a rather more discriminating course
has been adopted by judges, especially those of chancery jurisdiction or land
registration."
Power of Procreation. It will be assumed, in the absence of evidence to
any different effect, that any male person above the age of puberty is capable
of procreation. 8 The assumption has been deemed reasonable even up to an
advanced age. 9
175 (1850); Burleigh v Hecht, 22 S. Dak. App. 614, 82 X. E. 941 (1907); 2 Chamb.,
301 (1908) : 2 Cbamb., Ev., 1048, n. 1, and Ev., 1050
cases cited. 3. Holcombe v. State, supra.
98. Com. v. Pollitt, "25 Ky. L. Rep. 790 4. Bacot's Case, cited in In re Apgar, 37
(1903), 76 S. \V. 412 The party who claims X. J. Eq. 502 (1883) (62).
that a residence shown to have existed within 5. Hill v. Spencer, 196 111. 65. 63 X. E. 614
a reasonable length of time has since been (1902). See also, In re Apgar, supra.
changed is under the burden of evidence to There is often said to be a presumption of law
prove that fact. \Vray v Wray, 33 Ala. 187 that one dying has left heirs. Modern \Vood-
(1858); Xixon v. Palmer, supra; Rixford v. men v. Ohromley. 41 Okla 532, 139 Pac 306,
Miller, 49 Vt 319, 326 (1877). L. R. A. 1915 B 728 (19)4).
99. 2 Chamberlayne, Evidence, 1050, 6. List v. Rodney. 83 Pa. 483 (1877) (75;
1051 married) : Flora v. Anderson, 67 Fed 182
1. Holcombe v. State. 5 Ga. App. 47. 62 S. (1895) (49: married); 2 Chamb., Ev.,
E. 647 (1908) For a general discussion of 1050a.
inferences of regularity and the distinction 7. 2 Chamb., Ev.. 1050a, notes 4-13; Re
between administrative assumptions of regu- G , 21 Ont. 109 (1891).
larity and inferences or presumptions of reg- 8. Gardner v. State, 81 Ga. 144. 7 S. E. 144
ularity, see 2 Chamb., Ev.. 1049, 1193 (1888); 2 Chamb.. Ev., 1051. and cases
et seq. cited -
2. Lowden v. Pennsylvania Co.. 41 Ind. 9. Lushington v. Boldero, 15 Beav. 1, 16
Jur. 140, 21 L. J. Ch. 49 (1851) (age of 95).
424
PKESL-MPTIOXS; INFERENCES OF FACT.
266
424. [Inferences of Regularity] ; Mental or Moral. 10 Prominent among
inferences of regularity in human attributes, mental or moral, is the so-called
'* presumption '* that a given individual, in the absence of evidence to the
contrary, will be taken to be sane, 11 i.e., that he is a person of common under-
standing. 1 - The procedural effect of a presumption of law has been conferred
at times upon this inference of fact. 1 " In much the same way, it is said to
be presumed that a child of 14 is'sui juris, 14 and that one under 12 is not. 1 '
A deaf mute is not presumed to be an idiot. 10 It will be presumed that each
human being has the ordinary mental powers and qualitications connoted bv
the term man. 11
Moral Attributes. In the same way, it will be inferred or assumed that
each man has the usual moral attributes attaching to the race, the customary
habits, and the general way of looking at questions presented for consideration.
Thus, it may fairly be said that it will be presumed or assumed that a persou
did not voluntarily incur the risk of death. 18
Instinct of Self-Preservation. : Among propositions of experience relating
to the probable conduct of mankind is that men love life and, therefore, in-
stinctively avoid obvious danger. 1 " It follows that where a deceased person
10. 2 Chamberlayne, Evidence, 1052, 12. Holcombe v. State, supra : Fosnes v. Du-
1053.
11. ^tanlill v. Johnson, 159 Ala 546. 40 So.
223 (1909); Kelly v. Nusbaum, 244 111 158,
91 X. E. 72 (1910) ; In re Phillips. 158 Mich
155, 16 Detroit Leg. X. 623. 122 X \V. 554
i 1 Hi 19) ; Dodd v. Anderson, 115 X Y. Supp.
688, 131 App. Div. 224 (1909): 2 Chamb.,
luth St. Ry. Co., 140 Wis 455, 122 X \\ . 10.34
(1909). The rule is the same in criminal
cases. L. S. v. Chosholm, 153 Fed. 808
(1907).
13. Rogers v. Rogers (Del. 1907), 66 Atl.
i<4.
14. Fortune v. Hall, 195 X. Y. 578. 89 N.
Ev., 1052, and cases cited. There is a pre- X E. 1100 (1909), affirming 106 X. Y Supp.
sumption of sanity even of a suicide. Ledy
v. Xational Council, etc., 129 Minn. 137. 151
X. W. 905, L. R. A 1915 D 1095 (1915).
Presumption as to suicide in action on life
policy, see note. Bender ed . 47 X. Y. 58
Presumption of sanity. Every defendant
is presumed to be sane but when evidence is
introduced sufficient to raise a reasonable
doubt of sanity the law imposes on the state
the burden of establishing his sanity the *ame
as any other material fact. Alberty v. State.
10 Okla. Crim. Rep 616. 140 Pac. 1025. 52
(.N S.) L. R A 248 (1014) In a criminal
case the presumption of sanity prevails until
it is met by evidence and if any evidence is
introduced of insanity at the time of the com-
mission of the offence charged then the burden
of proving sanity devolves on the prosecution
and the state is bound to prove his sanity
like all other elements of the crime beyond a
reasonable doubt. Adair v. State. 6 Okla.
Crim Rep. 2*4. US Pac. 416, 44 L. R. A.
(X. S.) 119 (1911).
787, 122 App. Div. 250 I 1907 ) . See also,
Gunter v. Hinson, 161 Ala. 536, 50 So. 86.
15. Grealish v. Brooklyn, etc.. R. Co., 114
X. Y Supp 582, 130' App Div. 238 (1909),
judg. afTd. 197 X. Y. 540, 91 X. E 1114
(1010).
16. Alexier v. Matzke, 151 Mich. 36. 115
X. \V. 251. 14 Detroit Leg X 955 (1908).
17. Succession of Jones. 120 La. Ann. 986.
45 So. 96.1 (1908i. The usual limitations
upon mental powers will also be presumed or
a->nnied For example, the law will not pre-
sume that a fact once known will always re-
main in the memory. Fire Ass'n of Phila. v.
La Grange & Lockhart Com. Co. (Tex. Civ.
App 1908). 109 S. \\ 1134
18. Chicago Terminal Transfer R. Co. v.
Redrlick. 131 III App 515 (1907), aff'd 230
111 105, 82 X~ E. 59S M907) : Lamb v. Union
Ry. Co of X Y. City, 109 X" Y. Supp. 97,
125 App Div. 286 (1008): 2 Chamb . Ev.,
1052. n 12. and cases cited
19. Atchison, etc., R. Co. v. Hill, 57 Kan.
- -
BUSINESS AFFAIRS.
425
wa? ?ane - " at the time of his death the prima facie inference arises, so far as
these facts of death and sanity are concerned, that the death was not self-
inflicted. 21 In like manner, it has been " presumed," assumed probably being
meant, in the absence of evidence to the contrary, that one killed by a locomo-
tive engine was, at the time, in the exercise of due care. 22
425. [Inferences of Regularity] ; Business Affairs. 23 Certain inferences of
fact relating to regularity in business matters seem to be bare assumptions made
for the purposes of convenience in directing the course of the trial. 24 Their
office is simply to sustain the burden of evidence K until proof on the subject
is introduced, as may properly be done. 2 *
Dates and Actual Time. Whether the ruling that the date affixed to a
document as the date of its execution is prima facie correct, is an inference
of fact or purely an assumption of administration, it will be taken that an
139, 45 Pac. 581 (1896); Morrison v. New
York Cent., etc, R. Co., 63 X. Y. 643 (1875) ;
Texas, etc., R. Co v. Gentry, 163 U. S 353,
366, 16 S Ct. 1104, 41 L. ed. 186 (1896); 2
Chamb., Ev , 1053, and cases cited. This
inference as to what is probable can, as a
matter of necessity, have weight only in the
absence of evidence of the actual. Connerton
v. Delaware, etc., Canal Co., 169 Pa. 339, 32
Atl. 416 (1S95). Little reason, therefore,
exist? for applying it to a case where an in-
jured party can testify as to the real circum-
stances attending the happening itself. Reyn-
olds v Keokuk, 72 Iowa 371. 34 X. W. 167
<1887).
20. Germain v. Brooklyn L. Ins. Co., 26
Hun (X. Y.) 604 (1882).
21. Devine v. National Safe Dep. Co., 145
111. App. 322 <1908), judg. afTd 88 X E.
804 (1909): Mallory v. Travellers' Ins. Co.,
4, X. Y .V2. 7 Am Rep. 410 (1871) : Clemens
v. Royal Xeishbors of America, 14 X. D. 116,
103 X. \V. 402 190.il : 2 Chamb.. Ev.. 1053,
n. 5. and cases cited.
22. Davenport, etc.. Ry. Co. v. De Yaeger,
112 111. App. 537 1 1904^ : Cahill v. Chicago ft
A. R Co. 205 Mo. 303. 103 S. W 532 (19O7).
Presumptions of due care, see note. Bender
ed.. 112 X. Y 22-3. Presumption as to neeli-
gence and contributory neslisenoe. see note,
Bender ed.. 139 X. Y 274 There i~ a pre-
sumption that a switchman moved by love of
life and the ordinary instinct of self-preserva-
tion which is characteristic of all living beings
was in the exercise of reasonable care to that
end. Korab v. Chicago. Rock Island A: Pa-
cific R. Co., 149 Iowa 711, 128 X. W. 529, 41
L. R. A. (X. S.) 32 (1910). Because of the
natural instinct of self-preservation which
generally prompts men to exercise care and
caution for their safety, there is ordinarily a
presumption that due care and caution were
observed in particular instances. But this
presumption may be rebutted where it is in-
compatible with the duly proven conduct of
the person in particular circumstances. The
burden is upon the defendant to show con-
tributory negligence on the part of the plain-
tiff. Southern Express Co. T. Williamson. 66
Fla. 286, 63 So. 433, L. R. A. 1916 C 1208
(1913). In an action against a railroad com-
pany running a park for the death by drown-
ing of a boy to whom the defendant let a
row-boat claimed to be defective, where there
was no witness to the accident and no direct
evidence as to how it happened, the court
holds that there is a presumption of due care
on the part of the plaintiff which is sufficient
to permit recovery if negligence is shown on
the part of the defendant. Lincoln v. De-
troit ft M. R. Co.. 179 Mich. 1*9. 146 X. W.
710. 51 L. R. A. (X. S.) 710 r!914).
23. 2 Chamberlayne. Evidence. 1O54-
1056.
24. Infra, f 490 rf *rq.: 2 Chamr Ev.. $f
1054. 1193 ft seq.
25. $* 4<V et seq.: * Chamb.. Ev., 967
et xtq.
26 H. A. Pitts' Sons Mfe. Co. v. Poor. 7
111. App. 24 H880) : Cntts v. York Mfe- Co.
1 Me. 190 (1841) : 2 Chamb., ET., 1054.
and cases cited.
425 PRESUMPTIONS; INFERENCES OF FACT. 268
abstract of title, 27 power of attorney, 28 or other document 29 was executed, or
a letter written ;! " on the day of its date. In like manner, documents of
different dates will be taken to relate to separate transactions. 31 The inference,
in the nature of things, is rebuttable. 32
Usual Methods Followed. An inference of fact, justified by experience
but liable to be disproved,'' 3 is to the effect that the customary methods of doing
business in general are followed in a particular case which naturally falls
within the rule.' 54 For example, the habit of business men to retain valuable
collaterals or other Valuable papers until the indebtedness secured by them is
paid, has been recognized by the court^. Therefore the possession of an over-
due note by its maker gives rise to an inference that its obligation has been
discharged/' 5 The custom of tradesmen is to seek their own interest by giving
credit to solvent persons rather than to others.' 5 '"' Accordingly it will be in-
ferred that credit was given to a responsible principal rather than to an
irresponsible agent. 35 For a like reason, where the holder of a mortgage takes
no steps to secure payment, it will be inferred that the mortgage is paid. :!8 In
the same way, men in business offices are in the habit of signing their own
names to their correspondence, of having persons connected with the office
answer telephone communications and to state truly with whom the conversa-
tion is being held. An inference, therefore, arises that the signature on a
business letter, in answer to one sent to him, especially on office stationery. 40
27. Chit-ago, etc., R. Co. v. Keegan, 152 111. (1851); Halfin v. Winkleman, 83 Tex. 165,
41. '5, 39 X. E. 33 (1894). 18 S. W. 433 (1892); Kincaid v. Kincaid. 8
28. Holbrook v. New Jersey Zinc Co., 57 Uumplir. iTenn.) 17 i 1847 I: 2 Chamh., Ev.,
X. V. 616 (1874). 1056, n. 3, and eases cited.
29. Hauervvas v. Goodloe, 101 Ala. 162, 13 36. Banks will be assumed to discount
ro. 567 (1892); Lauder v. Peoria Agricul- paper only on the indorsement of those who
tural, etc., Soc., 71 111. App. 475 (1897); 2 are able to pay their indebtedness. German
Chamb., Ev., 1055, n. 3, and cases cited. Security Rank v. Columbia Finance & Trust
Negotiable instruments stand in the same Co., 27 Ky. Law Rep. 581. 85 S. VV. 761
position. They will be taken to have been (1005).
executed on the day of their date. 2 Chamb., 37. Ferris v. Kilmer, 47 Barb. (X*. Y.) 411
Ev., 1055, n. 3, and cases cited. (1867).
30. Potez v. Glossop, 2 Exch. 191 (1848); 38. Locke v. Caldwell, 91 Til. 417 (1879):
2 Chamb., Ev., 1055, n. 4, and cases cited. Kellogg v. Dickinson, 147 Mass. 432, 18 X. E.
31. Matter of Miller, 77 X. Y. App. Div. 223, 1 L. R. A. 346 (188S); Wilson v. Al-
473. 78 X. V. Supp. 930. rev'g 37 Misc. 449. bert, 89 Mo. 537, 1 S. W. 209 (1886); Me
75 X. Y. Supp. 929 (1902). Murray v. McMurray, 17 X. Y. Supp. 657, 63
32. Dowie v Sutton, 126 111. App. 47, aff'd Hun 183 (1892). fifteen years sufficient, the
227 111. 183, 81 X. E. 395 (1906). mortgagor being solvent: Lammer v. Stod-
33. Savings, etc., Soc. v. Burnett, 106 Cal. dard, 103 X. Y. 672. 9 X. E. 328 (1886) ; Ray
514, 39 Pac. 922 (1895). v. Pearce, 84 X. C. 485 (1881): Sawyer v.
34. Phillips v. Wright, 5 Sandf. (X. Y.) Link, 193 Pa. 424, 44 Atl. 457 (1899); 2
342 (1852); First Xat. Bank v. Colonial Chamb., Ev.. 1056, n. 6, and cases cited.
Hotel Co., 226 Pa. 292, 75 Atl 412 (1910) ; As to payment of a bond. Id.
Adams v. Adams, 22 Vt. 50 (1849) ; 2 Chamb., 39. Ragan v. Smith, 103 Ga. 556, 29 S. E.
Ev., 1056, n. 2, and cases cited. 759 (1897) ; Melby v. Osborne, 33 Minn. 492,
35. Blodgett v. Webster, 24 N. H. 91 24 N. W. 253 (1885); Newell v. White, 29
269
MAIL SERVICE.
is that of the writer or has been authorized by him. 41 So it will be inferred
that one answering a telephone is connected with the office, 42 and is actually
the person whom he purports to be. 4:!
Minor Instances. That business has been transacted at one's office rather
than at his residence, 44 that the entries upon books of account are authorized, 45
that estates of any financial value will receive legal administration, 40 that
business enterprises will not be undertaken until all necessary legal authority
is procured, 47 and the like 4S will be presumed, or assumed.
Corporation Business. Where the seal of a corporation has been affixed
by its secretary, it will be inferred that the act was done under authority of
the company, such being the usual course of business. 49
Officer's tie turns. In the same way the correctness of an officer's return
will be presumed/'"
426. [Inferences of Regularity]; Official Business; Mail Service. 51 The
regularity of the mail service is a matter established by experience. 52 It will,
therefore, be inferred that in a particular instance of transportation by mail
the same regularity of transmission was applied. 53 When certain necessary
I.'. 1 343. 73 Atl. 7U8 (1908)); 2 Chamb.,
Kv., 1056, ij. 7, and oases cited. It has
Iteen held that no presumption arises that a
person whose name is appended to a business
letter actually wrote it. Heard v Southern
Ry. Co.. 143 X. C. 137. 55 S. E. 505 (1006).
The same presumption will lie indulged in case
of one whose name is affixed to a telegram.
\\estt-iii I'nion Tel. Co v. Troth, 43 Ind. App.
7, S4 N. L. 727 (1908).
40. Ragan v Smith, supra.
41. American Bonding Co. of Baltimore v.
Ensey, 105 Md. 211, 65 Atl 921 (1907).
42. Rock Island, etc., R. Co. v. Potter, 36
111 App. 590 (1888).
43. Guest v. Hannibal, etc., R Co., 77 Mo.
App. 258 (1898).
44. Varicks v Crane, 4 N. J. Eq. 128
(1H37).
45. Henry v. Travelers' Ins. Co., 42 Fed.
363 (189(1).
46 Johnson v. Burks, 103 Mo. App. 221, 77
S. W. 133 (1903).
47. McWethy v. Aurora Electric Light, etc.,
Co, 202 111 218. 67 X. E. 9, aff'g 104 111.
App 479 ( 1903).
48. Allen v Wilbur. 199 Mass. 366. 85 X. E.
429 (1908). an addressed letter delivered at
addressee's office was received It will be a-
sumed that promissory notes are worth their
face value. Anderson v. Grand Forks Nat.
Bank, 6 X. D. 497. 72 X. VV. 916 (1897).
\Yhen a month is referred to, without further
limitation, it will be taken to be a month of
the current year Tipton v. State, 119 Ga.
304, 46 S. E. 436 11)03).
49. Bliss v. Harris, 38 Colo. 72. 87 Pac.
1076 (1906). It will be inferred that a busi-
ness corporation has officers and stockholders,
such being the usual custom. Richards v.
Xorthwestern Coal & Mining Co., 221 Mo.
149, 119 S. W. 953 (1909).
50. It is presumed that a public officer does
his duty and this presumption applies to a
return on the summons by a sheriff showing
that he received it. Galehouse v. Minneap-
olis. St. Paul. etc.. R. Co.. 22 X D 615. 135
X*. W. 189. 47 L. R. A. (X S. ) 965 (1912K
51. 2 Chamberlayne. Evidence. 1057-
1061.
52. Ashley Wire Co. v. Illinois Steel Co.,
164 Til. 149. 45 X. E. 410, 56 Am. St. Rep 187
(1*06) : Dunlop v. U. S. 165 U S. 486, 17 S.
Ct. 375. 41 L. ed. 799 (1897).
53. The presumption has been said to be
rather that postal officials do their duty
Watson v Richardson. 110 Iowa 673. 80 X
W 407 (1899}-. Briirss v. Hervey. 130 Mass
186 (1881); Henderson v. Carbondale Coal,
etc.. Co. 140 F S 25. 37. 11 S Ct 691. 35
L. ed. 332 M890) : 2 Chamb., Ev., 1057, n.
2, and cases cited.
PRESUMPTIONS; INFERENCES or FACT.
270
conditions are complied with," 4 the mailing of a letter or other postal matter,
gives rise to an inference that it arrived at its destination in due course of
mail. 55 The presumption or inference is one of fact."' The force of the
inference of receipt from mailing is not suspended by any so called '' con-
flicting '' presumption of innocence."'
Necessary Conditions on Inference of Receipt from Mailiny; (a) Proper
Address. That the inference of receipt from mailing should arise it is essen-
tial that the mail matter should be properly posted. This, in turn, involves
compliance with certain familiar conditions; (a) the letter or article must
be mailable matter and properly addressed, (b) the postage must be prepaid,
so far as required by the postal regulations and (c) it must be actually de-
posited in the mail. 58 Accordingly, no inference of receipt arises from mailing
unless the letter or other article is shown r ' !> to have been properly addressed
to the person for whom it was intended,* 5 " at the place of his residence 01 at the
54. Allen v. Blunt, 1 Fed. Cas. No. 217, 2
Woodb. & M. (U. S.) 121, 131.
55. German Nat. Bank v.- Burns, 12 Colo.
339, 21 Pac. 714, 13 Am. St. Rep. 247 (1889) ;
Bloom v. Wanner, 25 Ky. L. Rep. 1646, 77
S. W. 930 (1904); McDowell v .Etna Ins.
L'o., 164 Mass. 444. <H N. E 665 (1895) ; Long
Bell Lumber Co. v. Nyman, 145 Mich. 477, 13
Detroit Leg. N. 577, 108 N. W. 1019 (1906) ;
Sills v. Burge, 141 Mo. App. 148, 124 S. W.
305 (1910); Hastings v. Brooklyn L. Ins.
Jo., 138 N. Y. 473, 34 N E. 289 (1893):
Jensen v. McCorkell, 154 Pa. 32.5. 26 Atl 366.
58. A statement that a person ' ; mailed " a
letter implies compliance \\ith all these con-
ditions Ward v. Morr Transfer & Storage
Co., 119 Mo. App. 83, 95 S. \V. 904 (1906) ;
Reynolds v. Maryland Casualty Co., 30 Pa.
Super Ct, 456 (1906).
59. It need not be affirmatively proved
that the letter in an envelope is the one in-
tended for the person whose address is on the
envelope. Phelan v. Northwestern Mut. L
Ins. Co., 113 N Y. 147, 20 N. E. 827, 10
Am. St. Rep. 441 (1889).
60. Bankers' Mut. Casualty Co. v. People's
5 Am. St. Rep. 843 (1893) ; Dunlop v. U. S., Bank of Talbotton, 127 Ga 320, 56 S. E. 429
nipra: 2 Chamb., Ev., 1057, n. 4, and cases
jited.
Registered Mail. The inference of deliv-
;ry from proper posting applies though the
etter was registered, under the postal regu-
ations which call for an entry of receipt on
;he books of the receiving office and no such
>ntry is offered or its absence explained.
Bellefonte First Nat. Bank v McManigle, 69
t j a. 156. 8 Am. Rep. 236 (1871).
56. Pitts v. Hartford L., etc., Ins Co., 66
(1907): Ward v. Hasbrouck, 60 N. Y. Supp.
391. 44 App. Div. 32 (189!)): Reeves & Co.
v. Martin, 20 Okl. 558, 94 Pac. 1058 i 1908) ;
2 Chamb., Ev., 1058, n. 3, and cases cited
A dcft'ctire address will exclude the infer-
nce even if the letter enclosed a self-addressed
postcard which was net returned. U. S.
Equitable L Assur. Soc v Frommhold, 75
111. App. 43 (1897). A correct street and
number and a wrong place e.g., "317 Main
St., New York City," instead of 317 Main St.,
'onn. 376, 34 Atl 95, 50 Am. St. Rep. 96- Cincinnati" raises no presumption of re-
(1895) : Pittsburg Lawrence Bank v. Raney,
>tc.. Iron Co., 77 Md. 321, 26 Atl. 119 (1893) ;
Plath v Minnesota Farmers' Mut. K. Ins.
\ssoc., 23 Minn. 479, 23 Am Rep. 697 (1877) :
\ustin v. Holland, 69 N. Y. 571, 25 Am. Rep.
246 (1877); Henderson v. Carbondale Coal,
>tc., Co., supra: 2 Chamb., -Ev., 1057, n. 5,
ind cases cited.
57. Rosenthal v. Walker, 111 U. S. 185, 4
>. Ct. 382, 28 L. ed. 395 (1884), receipt of an
incriminating letter presumed.
oeipts. Westheimer v. Howard. 93 N. Y.
Supp. 518, 47 Misc. Rep. 145 (1905). The
presumption that a letter mailed was received
only arises on evidence that it was properly
addressed. Merely stating that " demand was
made by' mail " is insufficient as it does not
appear how the letter was addressed. Sil-
berg Co. v. McNeil, 18 N. M. 44, 133 Pac. 975.
49 L. R. A. (N. S.) 458 (1913), citing text.
61. Goodwin v. Provident Sav. L. Assur.
Assoc., 97 Iowa 226, 66 N. W. 156, 59 Am.
271 MAIL SERVICE. -t2G
post-office -where he customarily receives his mail. In case of a large place,
this requirement includes in addition, the correct street and number. 02 A per-
son who customarily receives his mail at both of two post-offices may properly
be addressed at either."' 1
(b) Postage Must Be Prepaid. Xo presumption or inference of receipt
arises from the fact of mailing unless it is affirmatively shown that stamps
have been affixed sufficient, under the postal regulations, to carry it to its destina-
tion. 64 The fact of prepayment may be inferred from the custom of an in-
dividual ''""' or the practice of a business establishment in this particular.
(c) Deposit in the Mail. It is a necessary condition of any inference
of receipt of mail matter from its posting that the fact of deposit in the
mail should be affirmatively shown. 66 The fact may be shown either by
direct evidence so called, or by inferences drawn from proof of probative facts,
including the regular course of business in a particular mercantile office, 67
the custom of a given individual in this matter 68 together with evidence that
the special parcel of mail matter in question had been placed within the
operation of the system or custom of the office. 69 Even where the facts are so
inconclusive as not to justify a ruling that the inference of mailing is a
probable one, it may still be held to be a reasonable one, and a verdict rendered
thereon may be sustained. 7 "
Postmarks. A postmark raises an inference that the article so stamped
has been mailed. 71 It affords, however, no inference that the article was
St. Hep 411, 32 L. K. A. 473 (1896): Hen- pie v. Crane, 125 N. Y. 535, 26 X. E. 736
derson v. Carbondale Coal, etc., Co., supra; (1891).
Russell v. Buckley, 4 K. I -V25 (1857). 65. Brooks v. Day, 11 Iowa 46 (1860).
62. Fleming, etc., Co. v. Evans, 9 Kan. App. 66. Bankers' Mut. Casualty Co. v. People's
858. 61 Pac. 503 (1900): Chicago, etc., Ry. riank of Talbotton, supra: Best v. German
Co. v Chicka-sha Nat. Bank (Okl. 1909), 174 Ins. Co., 68 Mo. App. 598 (1897) ; 2 Chamb.,
Fed. 923; Phelan v. Northwestern Mut. L. Ins. Ev.. 1060, n. 1, and cases cited
Co.. supra: 2 Chamh ., Ev.. 1058, n. 5. and 67. Lawrence Bank v. Raney, etc., Iron Co.,
cases cited. If the person addressed has supra: William Gardam & Son v. Batterson,
changed his address and left the new address 198 X. Y. 175. 91 X. E. 371, aff'g judg. 113
with the proper post office officials, it will be N. Y. Supp. 1150, 129 App. Div. 906 (1908) ;
assumed that the letter has been properly 2 Chamb.. Ev., 1060, n. 2. and cases cited,
forwarded. Marston v. Bigelow. 150 Mass. 45. 68. Miller v. Hackley. 5 Johns. (X. Y.) 375,
22 X. E. 71, 5 L. R. A. 43 (1889). 4 Am Dec. 372 (1810) : Backdahl v. Grand
63. Shelburne Falls Xat. Bank v. Towns- Lodge A. O T. W.. 46 Minn. 61. 48 X. W.
lev, 102 Mass 177. 3 Am. St. Rep. 445 454 (1891)
(1S69). 69. Dana v. Kemhle. 19 Pick iMass.) 112
64. Bless v Jenkins. 129 Mo. 647. 31 S. (1837): Whitney Wat'on Works v. Moore. 61
W. 938 (1895): Mishkiiid-Fpinl-erff Realty Vt 230. 17 Atl. 1007 i 1880) : 2 Chamb.. Ev..
Co v Sidorsky. 189 X Y 402. 2 X. E 448 1060. n. 4. and cases cited.
1 1907,. aff'ir iudr. 98 X. Y. Supp. 496. Ill 70. Hastings v. Brooklyn I.. Ins. Co.. supra.
App. Div. 578 ,in06> : 2 Chamb. Ev., 1059, 71. Xew Haven County Bank v. Mitchell,
n. 1. and ^aes cited. 4 certificate that a 15 Conn. 206 (1842): U. f>. v. Williams, 3
letter was " dull/" mailed will be construed Fed. 484 (1880) : 2 Chamb., Ev.. 1060, n. 7,
to mean that the postage was prepaid Peo- and cases cited.
426 PRESUMPTIONS; INFERENCES OF FACT. 272
mailed on the day of the date indicated on the postmark. 72 though it is a cir-
cumstance which the jury are entitled to consider, as bearing on the question
of date of mailing. 7 ' 5
Date. Experience indicates no such uniform connection between the date
of a letter and the time of its mailing as to raise an inference that a letter
was posted on the day of its date.' 4
\Vhen Mailiny is Complete. A letter, or other postal matter delivered to
a railway postal agent while on duty 7u or to a mail carrier while engaged in
official business 7ti is duly mailed. Deposit in a post-office or in a letter box
provided by government for the purpose and as part of the work of collecting
letters ' ' has the same effect. In either case the mailing is complete.
" Due Course of Mail."-- - To raise an inference or presumption of the re-
ceipt of mail matter at any particular time, it must be shown not only that it
was properly mailed 78 but also as to what is the usual course of mail between
the place of mailing and the place of receipt. 79 The inference is that the mail
matter was delivered in due course of post. 80 In many cases, the subject is not
one which the court and jury will treat as oiie covered by the common knowl-
edge of the community. 81 The tribunal cannot know, as matters of notoriety,
the running time of trains between places, 82 the number of mail trains within
a given time S3 or other facts involved in such an inquiry.
Receiciny Postmark: The date of delivery cannot be inferred from the
postmark of the receiving office. 84
72. Xew Haven County Bank v. Mitchell, 81. Bishop v. Covenant Mut. L. Ins. Co.,
supra. 5 Mo. App. 302 (1900); 2 Chamb., Ev.,
73. Shelburne Falls. Xat. Bank v. Towns- 1001, n. 4, and cases cited.
ley, 102 Mass. 177, 3 Am. Rep 445 (1809). 82. Early v. Preston, 1 Patt. & H. (Va.)
74. Phelan v. Northwestern Mut. L. Ins. 228 (1855); Wiggins v. Burkham, 10 Wall.
Co., supra; Uhleman v. Arnholdt, etc., Brew- (U. S.) 129, 19 L. ed. 884 (1869).
ing Co., 53 Fed. "485 (1893). 83. Wiggins v. Burkham, supra.
75. Watson v. Richardson. 110 Iowa 673, 80 84. Early v. Preston, supra.
N. W. 407 (1899). Practical Suggestions. In proving the
76. Pearce v. Langfit, 101 Pa. 507, 47 Am. mailing in a large office it may be necessary
Kep. 737 (1882). to put on the clerk who wrote and addressed
77. (a sco Xat. Bank v. Shaw, 79 Me. 376, the letter and in addition the office boy or
10 All. (57, 1 Am. St. Rep. 282 (1887) ; Me- other clerk who actually put it in the mail.
Coy v. Xew York, 46 Hun (X. Y ) 268 Counsel should not forget to ask whether the
(1887). envelope had printed on it the name and ad-
78. Phelan v. Xorthwestern Mut. L. Ins. dress of the addresser and a direction to tin-
Co., supra : Vhlman v. Arnholdt, etc., Brew- postmaster to return it if not called for
ing Co.. supra. within a certain period and whether it ever
79. Boon v State Ins. Co., 37 Minn. 426. was returned. The clerks need not remember
34 X. W. 902 (1887). whether this particular was actually written
80. Sherwin v. National Cash Register Co., and mailed, but it will be sufficient for them
5 Colo. App. 102. 38 Pac. 392 (1894); Iro- to testify from their notes that the letter was
quois Furnace Co. v. Wilkin Mfg. Co , 181 111. given them to write and mail and that they
582, 54 X. E. 987 (1899) : Augusta v. Vienna, know that all letters so given them were
21 Ale 298 (1842); Bachman v. Brown, 56 written and mailed. See supra, 425.
Mo. App 396 (1894) ; 2 Chamb., Ev., 1061,
n. 3, and cases cited.
273 MAIL SERVICE. 427
427. [Inferences of Regularity] ; Rebuttal of Inference of Receipt from
Mailing.^- 1 - Evidence rebutting the inference of receipt from mailing may be
of several kinds. The person to whom the mail matter is addressed may testify
that he did not. in point of fact, receive it at all so or if he did receive it. that
it was delivered to him later than it should have been. 87 He may also, as a
matter of course, corroborate his denial by other evidence, as that, by the
custom of the receiving office, the mail was delivered to another person. s f The
need of corroborating arises from the fact that a bald denial of receipt is
not convincing in itself but should be reinforced, if possible, by some adequate
explanation. Mt e.g., some uncertainty in the proof of mailing and regularity
in transmission at a particular time. 90 His simple inability to recollect whether
the letter or other matter was or was not received !U a vague impression that
it was not, 1 ' 2 do not produce a strong probative effect in rebuttal of the inference.
The statement that no such letter appears on his office files 93 or among the
papers of a deceased person to whom it was addressed, 94 stand in the same
position.
Xdine : Probative Force of Inference of Receipt from Mailing; Request for
Return. The force of the inference of receipt from mailing is greatly in-
creased by failure of the sender to receive some notice of the non-delivery of
the article in question in response to a printed request on the envelope for its
return, in such an event, to his address which is given, in this way, to the
postal authorities. 1 ' 1 "' In case of a failure to receive back a letter bearing such.
85. -1 Chamberlayne, Evidence, 1062- 94. Sabre v. Smith, 62 X. H. 663 (1883).
1067. . But see Hastings v. Brooklyn L. Ins. Co.,
86. Fleming v Evans, i) Kan. App. 858, 61 supra.
Pac. 5U3 (1900); National Masonic Ace. Inlerence of Regularity of Constant As-
Assoc. v. Burr, 57 Xeb. 437, 77 X \V. 1098 sistance. The presumption of the receipt
(1899); Howard v Daly. 01 X. V. 362, 19 from mailing being one of fact, it results that
Am. Rep. 285 (1875) ; 2 Chamb., Ev.. 1062, whatever evidence is submitted in rebuttal,
n. 1, and cases cited the original inference still maintains its in-
87. Hachman v. Brown, 56 Mo. App. 396 trinsic probative effect. Marston v Bigelow,
(1894); Xational Masonic Ace. Assoc. v. 150 Mass. 45, 22 X. E 71. 5 L. R. A. 43
Burr, supra (1889); Sutton v. Corning, 69 X. Y. Supp.
88. Schutz v Jordan. 141 U. S 213, 11 S 670. 59 App Div. 589 (1901). It follows
Ct. 906. 35 L i>d 7o.~) i 1S91 I. that while it is certainly incumbent upon the
89. (i. S. l!oth Clothing Co. v. Main S. S. party having the burden of evidence i S 402
Co., 88 X. V. -Snpp. 987. 44 MibC. 237 (1904) ; ct se< t . : 2 Chamb.. Ev.. 5j 967 et seq.: Hunt-
Fleming v. Evan.-, aupra ; 2 Chamb , Ev., ley v. Whittier. 105 Mass 391. 7 Am. Rep.
1U02. n 4. it!id case.- cited. 536 (18701) to prove the fact of actual de-
90. lloli.-on v <>ucen Ins Co.. 2 Ohio S & C livery of the letter to the person addressed,
PI Dec 475. 2 Ohio X P. 296 ( 1S93). this contention is at all times aided by the in-
91. Pioneer Sav.. etc.. Co v. Thompson. 115 ference that a particular letter was probably
Ala 552. 22 So. ."ill i 1S97 i : Ashley Wire Co. delivered because letters so transmitted
v Illinois Steel Co.. supra: Ausvin v. Hoi- usually are Marston v Bigelow, supra; 2
land, supra: 2 Chamb.. Ev . 1062. n. 7. and Chamb. Ev.. 1003.
cases cited. 95. Sherwin v. Xational Cash Register Co..
92. Id 5 Colo. App 162. 38 Pac. 392 (1894): Baker
93. (iaar v. Stark (Tenn. Ch App. 1895), v. Temple, 160 Mich. 318, 16 Detroit Leg. N.
36 S. W. 149.
PRESUMPTIONS; INFERENCES or FACT.
a request the inference of its receipt by the sendee is said to become " well-
nigh conclusive." 9C
Corroboration. Finding the letter in possession of the addressee, 07 his
agent or principal !>s naturally corroborates the inference that it was duly
transmitted. His refusal to admit or deny receipt 0!) or other relevant con-
duct on his part l may strengthen the presumption against the addressee of the
letter almost to a moral certainty. 2
Presumption of Law. In certain branches of the substantive law, for
example, that relating to the protest of negotiable paper, or in other con-
nections where constructive notice is required, or deemed sufficient, this in-
ference of fact of receipt from mailing has been given the prima facie force
of a presumption of law. :i Unless, therefore, there is affirmative evidence of
non-delivery," 1 or circumstances likely to cause unusual delay or other reasonable
matter is shown, not to follow this inference is against the evidence and ground
is furnished for a new trial. 5 Whether, in cases where actual notice is required
as in case of creditors of a firm at the time of dissolution, such notice will be
prima facie inferred from mailing, other conditions being fulfilled, will be
regarded as a presumption of law, is in doubt. (i
Presumption of Law Denied. It has been explicitly denied that there is
Williams v. Cilver,
1092, 125 N". VV. 63 (1910) ; Matter of Wiltse,
25 N Y. Supp 733. 5 Misc. 10.1 (1893) ; Hed-
den v. Roberts, 134 Mass 38, 45 Am. Hep. 276
(1883) ; 2 Chamb., b'v., 1064, n 1, and cases
cited.
96. Jensen v. McCorkell,' 154 Pa 32.3, 26
Atl. 366, 35 Am. St. Rep. 843 (1893).
97. Possession of one enclosure leads to the
conclusion that all the enclosures have been
received. Melvin v. Purdy, 17 N. J. L. 162
(1839).
98. Blodgett v. Webster, 24 N. H. 91
(1851).
99. Woodman v. Jones, 8 Js H. 344 (1836).
1. Bell v. Hardy, 9 La. Ann. 547 (1854):
Lawrence Bank v. Raney, etc.. Iron Co , supra.
2. Pitts v. Hartford L ., etc., Ins. Co . 6fi
Conn 376, 34 Atl 95. 50 Am. St. Rep 96
(1895) ; 2 Chamb.. Ev., 1065. n. 5, and cases
cited.
Statutory Recognition. The inference has
been recogni/ed by statute as valid in several
jurisdictions. Stockton Combined Harvester,
etc , Works v. Houser. 109 Cal 9. 41 Pac. 809
(1895): Williams v. Cilver. 39 Or 337. 64
Pac. 763 (1901). While the two statutes of
California and Oregon are practically identi-
cal in terms, in the former state the inference
is one of fact Grade v Mariposa County.
132 Cal. 75. 64 Pac. 117 (1901). Tn Oregon,
the legislature is held to have laid down a
presumption of law.
supra
3. 444 et seq.; 2 Chamb. Ev., 1082
et seq. Iroqtiois Furnace Co v. Wilkin Mfg.
Co., 181 111. 582, 54 N. E. 987 (1899.) ; Hunt-
ley v. Whittier, 105 Mass. 391, 7 Am. Rep
536 (1870;) 2 Chamb., Ev., 1066, n. 1, and
eases'cited
4. Pitts v. Hartford L., etc.. Ins. Co., supra;
New York Home Ins. Co v. Marple, 1 Ind.
App. 411. 27 N. E. 633 (1890) : McDowell v.
/Etna Ins. Co.. 164 Mass 444. 41 X. E 665
(1895) : Ackley v. Welch. 85 Hun 178. 32 N.
Y. Supp 577 (1895): Small v. Prentice. 102
Wis. 256. 78 X. W 415 (1899): 2 Chamb.,
Ev., 1066. n. 2. and cases cited
5. Russell v. Buckley. 4 R. I. 525 (1857);
Oaks v. Weller, 16 Vt. 63 (1844) Should
alFirmative evidence of non-delivery be offered
the addressee is entitled to have it considered.
Kingsland Land Co v. Newman, 36 N. Y.
Supp. 960, 1 App. Div 1 (1896). The post-
mark of a letter containing a notice of pro-
test of a promissory note " is evidence that
the letter was mailed and sent, rather than
that it was merely put into the post-office.
New Haven County Bank v. Mitchell. 15 Conn.
206 i!842).
6. ^oung v Clapp. 147 111. 176. 190 (1892).
That it is not so to be regarded, see Kenney
v. Altvater, 77 Pa. 34 (1874). See also Eck-
275
MALL SEKVICE.
any presumption of law to the effect that mailing under proper conditions is
prima facie evidence of receipt. 7 In other words, it has been held that the
jury may rationally tind in many cases that the inference has a prima facie
value. The law does not, however, it is said, require the judge to rule that
the inference has, until s actual evidence of receipt is produced, a prima facie
force on which the j ury are justified in acting. y
428. [Inferences of Regularity]; Inference Rebuttable. 10 That the pre-
sumption is rebuttable 11 is implied in the very fact that it is a presumption. As
against the positive evidence of the addressee that the mail was never received,
the inference that a letter addressed to one on a given street in a populous city,
without addition of a street number, must have reached him cannot prevail. 12
Indeed, as against positive evidence of non-receipt, the inference may at times
appear devoid of probative weight, i.e., seem to be reduced to the weight of an
administrative assumption. 13
429. [Inferences of Regularity]; Telegrams; Statutes. 1 * Experience has
shown the existence of such uniformity in conducting the business of telegraphic
communications as to give rise to a probable though, of course, rebuttable, 15
inference of the fact that a properly addressed telegraphic message 16 delivered
to the company for transmission 17 reached its destination 18 without unneces-
erly v Alcorn, 62 Miss 228 (1S84); Van
Doren v. Lielmian, 11 N. V. Supp. 769 (1890) ;
Austin v. Holland, supra; 2 Chamb., Ev.,
1066, n 5. and cases cited. The probative
force of a presumption of law has been at
times accorded to this inference of fact in
proof of actual receipt. Merchants' Exch.
Co. v. Sanders, 74 Ark. 16, 84 S. \V. 7H6
; 1 S)05 I .
7. Continental Ins. Co. of New York v.
Hargrove, 131 Ky. 837, 116 S. \V. 256 ; 1909) ;
Campbell v. Gowans, 35 Utah 268, 100 Pac.
397 (1909).
8. De Jarnette v. McDaniel, 93 Ala. 215
(1800): German Xat. Bank v. Burns, 12
Colo. 539 (1889).
9. Hastings v. Brooklyn L. Ins. Co., 138
X. Y. 473 (1893): Huntley v. Whittier,
supra: Austin v. Holland, supra : 2 Chamb.,
Ev., 1067, n. 4. See also. Eckerly v. Alcorn,
02 Miss. 228 H884) -. National Bank. etc. v.
AlcManigle, 69 Pa. 156, 160 (1871).
10. 2 Chamberlayne, Evidence. 1068.
11. Hamilton v. Stewart. 108 Ga. 472, 34
S. E. 123 (1899); Meyer v Krohn, 114 111.
574, 2 N 7 . E. 495 (1885); Huntlev v. Whit-
tier, supra : Eckerly v. Aleorn. supra : Hurley
v. OU'ott, 198 X. Y 132, 91 N E. 270 (1010).
:"f'g .juder. 119 N. Y. Supp. 430, Ibi App Div.
631 (1909); Jensen v. McCorkell, supra; 2
Chamb., Ev., 1068. n. 1, and oases cited.
12. Cagliostro v. Indelli, 102 N. Y. Supp.
918, 53 Misc. 44 (1907).
13. Beeman v. Supreme Lodge, Shield of
Honor, 215 Pa. 627, 64 Atl. 792 (1906). It
is not necessary that non-receipt should be
proved by a preponderance of the evidence.
Judge v. Masonic Mut. Ben. Assoc., 30 Ohio
Cir Ct. R. 133 (1907)
14. 2 Chamberlayne. Evidence, 1069.
15. Eppinger v Scott, 112 Cal. 369, 42 Pac.
301, 53 Am St. Rep. 220 (1896). Whether
the inference in any given case has been re-
butted is for the jury. Long Bell Lumber
Co. v Xyman. 145 Mich. 477. 13 Detroit Leg.
.\. 557. 108 X. W. 1019 (1906).
Proof of delivery of an altered telegram
establishes prima facie the negligence of the
company and puts on it the burden of prov-
ing that it wa* not nesrlijrent. Baily v. West-
ern Union Tele<rraph Co., 227 Pa. 522. 76 Atl.
736, 43 L. R A (X. S.I 502 (1910).
16. Eppinarer v. Scott, supra. See also,
Flint v. Kennedy. 33 Fed. 820 (1888) .
17. Some evidence has been required that
the message reached the receivine office.
State v. Gritzner. 134 Mo. 512. 36 S. W. 39
' 1 896 ) .
18. Breed v. Central City First Nat. Bank,
PBESUMPTIONS; INFERENCES OF .FACT.
sary delay. The inference becomes greatly strengthened by failure on the
part of the addressee to improve an obvious opportunity 10 of denying the
receipt of the message.
80 it will be presumed that statutes are regularly passed 2 " and are con-
stitutional. 21
430. [Omnia Contra Spoliatorem.-- The inferences from experience,
grouped under the general maxim Omnia praesutnaniar contra s[joliatorein ~"
are dealt with by the administrative procedure of the courts upon a double
basis. In other words the same transaction is regarded from two distinct points
of view. Spoliation may be treated, (1) logically, as a deliberative fact; ("2)
from the administrative standpoint, as an insult to the court. The presump-
tion from spoliation except in continental Europe, 24 is not conclusive. 20
Secret Offenses. Where the perpetrator of a civil wrong has proceeded by
stealth or secrecy, a court will require less proof from the complaining party.- 1 '
Hebuttable. Any inference from spoliation is rebuttable. 27 The assign-
ment of a false reason, however, for a failure to testify or produce other wit-
nesses or evidence may in itself give rise to an inference of fabrication. 28
Value and Damages. All presumptions are indulged in against the party
who having, full evidence as to the value of an article, fails or declines t.
produce it to the court. Where the actor, for example, omits to prove wlui.
he knows to be the value of an article the lowest possible within the evidence
6 Colo. 235 i 1882) ; Long Bell Lumber Co. v. Livingstone v. Xewkirk, 3 Johns Ch. (X. V. >
JMyman, supra; Perry v. German-American 312 ( 1818 1 ; Harris v. Rosenberg, 4.3 Conn.
Bank, 53 Xeb. 89, 73 X W. 538, 68 Am. St. 2_, i 1.875 ) ; 2 Chamb., Ev . Jj 1070, n. 1, and
Rep. 593 (1807); Oregon Steamship Co. v. cases cited.
Otis, 100 X. Y. 446, 3 X E. 485, 53 Am. Rep. 24. 2 Chamberlayne. Evidence. 10781).
221 (1885); 2 Chamb., Ev., 1000, n. 4. and 25. Thompson v. Thompson, Jnd. 32:5
cases cited (1857) As to the English rule in equity.
19. Oregon Steamship Co. v. Otis, supra. see 2 Chamh., Ev., 1070, n. 3, and cases
20. According to the weight of authority it cited.
will be presumed that all the requirements 26. 2 Chamb.. Ev , 1070, n. 4.
of the constitution have been followed in pass- 27. Lowe v. Massey. 02 MI. 47 (1871):
ing a statute unless the journal affirmatively Miami, etc.. Turnpike Co. v Baily. 37 Ohio
shows the contrary So where a bill is passed >t. 104 fISS]); The Olinde Rodrigues, 174
and the .journal does not show that it has had U. S. 510, 10 S. Ct. Sol. 43 L ed. 10(T>
three readings as required on three separate ( 1808) ; 2 Chamh.. Ev.. 1070. n. 5, and case-;
days but is silent on the matter, the court cited.
presumes that the requirement has been com- 28. Thus, for example, where the accused
plied with. Ke Drainage District. 26 Idaho has relied on his alleged unsound condition of
311. 143 Pac. 200, L. R. A. 1015 A 1210 health, and not his constitutional rights as a
( 1014). reason for failing to testify in his own behalf.
21. A statute fixing rates is presumed to be if the jury found that his condition did not
constitutional like other statutes. State v. prevent him from testifvinsr. they could infe -
Adams Express Co.. 85 Xeb. 25. 122 X. W. that he could not truthfullv denr the impor-
601. 42 L. R. A i X. S. ) 306 (1000). tant facts bearing upon the question of his
22. -1 Chamberlayne, Evidence. 1070. guilt. State v. Skillman, 76 N. J. L. 464,
1070a. 70 Atl. 83 (1908).
23. Bush v. Guion, 6 La. Ann. 797 (1851) ;
277 SPOLIATION. 4:jl
will be assumed ("presumed") to have been involved. 29 Where, however,
the other party suppresses or conceals the decisive evidence as to value, it will
be assumed that the article was of the highest price possible under the facts
shown. 30
Damages. Probably the most conspicuous application of this rule is to
the matter of damages. In general, where the best proof of actual damage
is removed by the act of the offending party, he will be mulcted in the
hiirhest prices, or other elements of damage, which the evidence, as given, will
fairly warrant. 31 In the same way, one who wrongfully negotiates a note is
liable for its full face value; 32 and one who, when a draft is presented to him
for acceptance destroys it, is equally liable as if he had formally accepted it. 83
The presumption, however, can properly be applied only to such facts as are
established in the evidence. 34
Confusion. So, in case of a deliberate confusion of the goods of one who
seeks to conceal their identity by mingling them with those of another, all in-
tendments are made, by way of damages or otherwise, in the latter's favor. 35
The actual facts and range of spoliation should be clearly established. 30
431. [Omnia Contra Spoliatorem] ; Spoliation a Deliberative Fact. 37 It will
be noticed that these inferences of fact drawn from the fabrication or sup-
pression of evidence, both of which are comprehended under the term spolia-
tion, are rather of a deliberative than of a directly probative nature. In other
words, their function is rather to test the weight of the evidence furnished
than to furnish it. Its result is not directly to enhance the probative value
of the facts offered by the other side. 38 It cannot turn assertion 39 or con-
jecture into proof. 4 " In case of documentary evidence suppressed or de-
29. 2 Chamb., Ev., 1070a, n. 1, and cases 38. Duffy v. Jacobsen, 135 111 App. 472
e, tod (1907); Meyer v. Minsky, 112 X. Y. Supp.
30. Bailey v. Shaw, 24 X H. .'500 (1851): 860. 128 App. Div. 589 (1908); Stout v.
Clarke v. Miller, 4 Wend. ( X. Y.) 628 ( 1830) : Sands, 56 W. Va. 663, 49 S. E. 428; 2 Chamb.,
2 Lhamb. Ev., H>70a, n. 2. and oases cited. Ev.. 1070b. n. 3, and cases cited.
31. Downing v. Plate. 90 111. 268 (1878): 39. Cooper v. Upton, 65 W. Va. 401, 64 S.
Preston v. Leiirhton. Md 88 (1854) ; Barney E. 523 (1909).
v. Sweeney, 38 Wis 381 (1875). 40. Cartier v. Troy Lumber Co., 138 111.
32. Decker v. Matthews, 12 X. Y. 313 533, 28 N. E. 932, 14 L. R. A. 470 (1891):
(]<.-).")) Life, etc., Ins. Co. v. Mechanics' F. Ins Co.,
33. Jenne v Ward. 2 Stark. 327 (1818). 7 Wend. (X. Y) 31 (18311: Arbuckle v.
o4 Harris v Rosenberg, 43 Conn. 227 Temple, 65 Vt. 205, 25 Atl. 1005 (1892): 2
i|s75i. Chamh.. Ev.. 1070h. n. 5. and cases cited.
35. Ryder v. Hathaway, 21 Pick. (Mass.) It has been held, for example, that the mere
293 (1838) ; Hart v. Ten Eyck, 2 Johns. Ch failure to question one's own witness as to a
108 (1816). certain fact will not relieve the other side
36. McReynolds v. McCord, 6 Watts (Pa.) of the necessity of proving the fact affirma
288 (1837). Effect of suppression of evidence tively. if material to his case "To so hold
of indebtedness, see note. Bender's ed., 47 N. ' would be substituting conjecture for proof."
Y. 556. Arbuckle v. Templeton. supra. See. however.
37.2 Chamberlayne, Evidence, 1070b, Sutton v. Davenport. 27 L. J. C. P. 54 ( 1857).
I070d.
431 PRESUMPTIONS; INFERENCES OF FACT. 278
stroyed, no inference as to contents can arise where direct and positive evi-
dence other than the document itself is produced of its actual contents. 41
Subjective Relevancy. The relevancy of spoliation is not objective, of the
world of physical nature. It is rather subjective 42 relating to the domain
of morals. It operates, in most instances, by way of reducing the probative
force of the evidence actually produced by the spoliator; 4:5 and thereby, in-
directly, adding both to the relative weight and also to the absolute force of
the case produced by his opponent." 4 * *' It is certainly a maxim, that all evi-
dence is to be weighed according to the proof which it was in the power of
one side to have produced, and in the power of the other to have contradicted." 4:>
The inference is warranted that facts not produced, but known to the party
himself, are of such a nature that they would, if produced to the tribunal,
have disentitled him to succeed in his contention. 46 This is an inference
to be taken into account in weighing the value of the evidence produced 4T and
the courts have felt justified in assuming the existence of all facts which the
offending party might reasonably be assumed to have known. 48 If the spoliat-
ing party has the affirmative of the issue, the diminution of his case by the
unfavorable inference may alone be sufficient to reduce it below the probative
force of a prima facie case. 49
Criminal Cases. In criminal proceedings the same inference arises ; in
many cases, accentuated in probative force by the very obvious interest of the
accused to produce any evidence which is calculated to help him. 50 Here
also, however, the force of the inference from suppression or fabrication is
rather of deliberative than of probative, of subjective rather than of objective,
relevancy. 51
Modifying Circumstances. If all the constituent facts are clearly proved
41. Bott v. Wood, 56 Miss. 136 (1878); 112 111. App. 471 (1904), judg. aff'd 210 111.
Miltenberger v. Croyle, 27 Pa. 170 (1856). 213. 71 X. E. 377.
42. 36, supra; 1 Chamb., Ev., 56. 48. Gray v. Haig, 20 Beav. 219, 226 (1854).
43. Boler v. Sorgenfrei, 86 N. Y. Supp. 180 49. Where a party produces the best evi-
(1904). dence in his power, no unfavorable inference
44. Del Campo v. Camarillo, 154 Cal. 647, arises because more probative evidence ac-
98 Pac. 1049 (1908) ; Blackman v Andrews, tually exists. Shields v. Georgia Ry. & Elec-
150 Mich. 322, 114 N. W. 218, 14 Detroit trie Co., 1 Ga. App. 172, 57 S. E. 980 (1907).
Leg. X. 709 (1907) ; Reehil v. Fraas, 114 N. 50. "Where probable proof is brought of a
Y. Supp. 17, 129 App. Div. 563 (1908): 2 state of facts tending to criminate the ac-
Chamb , Ev., 1070c, n. 3, and cases cited. cused, the absence of evidence tending to the
45. Blatch v. Archer, 1 Cowp. 63 (1774). contrary conclusion is to be considered
And see Wallace v. Harris, 32 Mich. 380 though not alone entitled to much weight;
(1875). because the burden of proof lies on the ac-
46. Kirkpatrick v. Allemannia Fire Ins. Co., cuser to make out the whole case by substan-
184 X Y. 546, 76 X. E. 1098 (1906) ; Ferrari tive evidence." Com. v. Webster, 5 Gush,
v. Interurban St. Ry. Co., 103 X. Y. Supp. (Mass.) 316 (1850).
134, 118 App. Div. 155 (1907): Standard Oil. 51. Thus, the nonproduction of a witness
Co. v. State. 117 Tenn. 618, 100 S. W. 705, presumptively able to explain the circum-
10 L. R. A. 'X. S ) 1015 (1007). stances constituting a prima facie case against
47. East St. Louis, etc., Ry. Co. v. Altgen, a defendant may be considered by the jury in
279 SPOLIATION. 432,433
by the uncontroverted evidence of others and thereupon establish a sufficient case
for the fraudulent or spoliating party, his own adverse opinion as implied in
lying, fabrication or suppression, is entitled to no particular weight. 52
432. [Omnia Contra Spoliatorem] ; Spoliation as an Insult to the Court It is
quite possible to regard spoliation not only as a deliberative fact but as con-
stituting a serious contempt of court. The sounder view of judicial admin-
istration seems to be to the effect that the situation as developed should not
be extended beyond its logical bearings and that a litigant ought not to be
deprived of his legal rights by refusing to receive other and relevant evidence,
in his favor,'' 3 unless, indeed, the jury would not, as a matter of reason, be
justified, after the disclosures, in acting favorably upon it.
433. [Omnia Contra Spoliatorem 1 ; Fabrication; Witnesses. 54 A mere con-
flict of evidence among a party's witnesses will not authorize an inference of
fabrication or attempt to mislead. 03 Possibly the fabrication of oral testimony
lacks an element of deliberateness, in the average instance, which makes the
inference a trifle less strong than in case of documentary proof. Still, the
presumption possesses great probative force 56 even where the party goes no
further than to use improper influence or pressure to induce a witness to
testify in his favor beyond the truth of the case. 57 " Evidence of the fact of
an attempted subornation is admissible as an admission by conduct that the
party's cause is an unrighteous one."
Bribery. Bribery of witnesses furnishes a common instance of the applica-
tion of this rule. Thus, for example, a charge that a party has sought to
bribe one of his adversary's witnesses is a deliberative fact for the considera-
tion of the jury/"' 9 Bribing a witness to testify on one's behalf naturally
gives rise to the same inference ; 60 " is in the nature of an admission that
weighing the effect of the evidence applicable Rep. 849, 41 L. R. A. 845 (1898) ; 2 Chamb.,
to the matter in dispute. The failure to pro- Ev., 1072, n. 1, and cases cited,
duce does not. however, raise any presumption False Admissions. When admissions are
of guilt or innocence. State v. Callahan, 76 offered against the party alleged to have made
N. J. L. 426. 60 Atl. 957 (1908). them, and prove to be fabricated, that fac*
52. Rayssiguier v. Kourchy. 49 La. Ann. makes the evidence weigh against the party
1627, 22 So 833 (1897) : Welty v. Lake Su- fabricating them. Christy v American Tem-
perior Terminal, etc , Co., 100 \\ is. 128. 75 perance Life Ins. Ass'n, 123 X. Y. Supp. 740
,N W. 1022 (1898); 2 Chamb.. Ev., 1070d. (1910).
53. Stone v Sanborn, 104 Mass 319, 6 Am. 57. People v. Marion. 29 Mich 31 (1874) :
Rep 238 (1870); Harris v. Rosenberg. 43 Taylor v. Crowninshield. 5 X. Y. Leg. Obs.
Conn 227 (1875) ; Armory v Delamirie. 1 209 (1847) : 2 Chamb.. Ev., 1072, n. 2. and
Str. 505 (1722) ; 2 Chamb.. Ev., 1070e. cases cited
54. 2 Chamberlayne, Evidence. 1071- 58. Com. v Min Sing. 202 Mass. 121, 88
1072a. N E. 918 (1909) : Fulkerson v. Murdock. 53
55. Brown v. State. 142 Ala. 287, 38 So. Mo. App. 151 (1892) : 2 Chamb. Ev.. 1072.
268 ( 1904) : 2 Chamh . Ev . 1071. n. 3. and cases cited
56. Chicago City R. Co. v. McMahon, 103 59. Ferrari v Interurban St. R Co.. 103
111. 485. 42 Am. Rep. 29 (188-2): McHugh v. X. Y. Supp. 134. 118 App. Div. 155 (1907).
McTIugh. 186 Pa 197, 40 Atl 410, 65 Am. St. 60. Carpenter v. Willey, 65 Vt. 168 (1892).
434,435 PRESUMPTIONS; INFERENCES OF FACT. 280
the cause of the party resorting to the bribery of witnesses or jurors is unjust,
and that his claim is dishonest arid unrighteous." 01 It is carefully to be
observed, however, that as is stated above " 2 the inference is a deliberative
rather than a directly probative one. 1 '""' " Evidence tending to show that a
party to an action tried to bribe a witness to give false testimony in his favor,
although collateral to the issues, is competent as an admission by acts and
conduct that his case is weak and his evidence dishonest. * * Such evi-
dence is for the consideration of the jury, ' : f under proper instructions
to prevent them from giving undue attention to the collateral matter to the
detriment of the main issue." 4 In other words, such an attempt is not
directly probative, i.e., it affords no presumption against the party's evidence
on the question testified to by the witness and does not have the effect of gain-
ing a more ready admission to the evidence of the adverse party on that
question, but is merely to be considered in weighing the evidence. 65
434. [Omnia Contra Spoliatorem] ; Writings. 66 An inference of extreme
evidentiary cogency arises when an attempt is made to pervert the course of
justice by the use of fabricated written evidence. 67 The force of this is
proportionate to the strength of the motive which must have prompted the
willingness to perform such morally repellant labor 68 and incur the legal
risk involved. 69 In an admiralty case involving liability for a collision, the
court held that the production of a fabricated log book warranted the rejection
of the testimony which it was brought to support. 70
Criminal Cases. Should a party in a criminal case, forge a document,
whether in the nature of a record book of account or other important or con-
stituent writing, a similar adverse inference naturally arises. 71
435. [Omnia Contra Spoliatorem]; Suppression; Witnesses; Failure to Call. 71
- To smother evidence is not much better, morally or legally, than to fabricate
61. Kidd v. Ward, 91 Iowa 371, 59 X. W. certificate which, if genuine, should have a
279 (1894). genuine seal, is stamped with a false one. it
62. 431, supra; 2 Chamb., Ev., 1070b. raises a very strong presumption that the sig-
63. Moriarity v London, etc., K. Co. I.. R. nature is false" People v. Marion, 29 Mich.
2 Q. B. 314 (1870) : 2 Chamb., Ev.. 1072a. 31 (1874).
n. 5. 68. T. S. v. Randall, 27 Fed Cas. No. 16,118,
64. Xowack v. Met. St. Ry.. 166 N. Y. 433, Deady 524 (1869).
60 N. E. 32. 54 L R. A 592, 82 Am. St. Rep 69. Daniel v. De Graffenreid, 14 Lea
691 (1901): Ferrari v. - Interurban St. Ry. (Tenn ) 385 (1884)..
Co.. supra; 2 Chamb.. Ev.. 1072a. 70. The Tillie, 7 Ben. (U. S.) 382 (1874).
65. Brown v State, supra: Ferrari v. Inter- 71. McMeen v. Com., supra; U. S. v. Ran-
urban St. Ry Co.. supra. dall. supra; 2 Chamb., Ev., 1074.
66. 2 Chamberlayne, Evidence, 1073, 71a. 2 Chamberlayne, Evidence. 1075-
1074. 1075e. Presumptions against party who
67. Winchell v Edwards, 57 111. 41 (1870) : suppresses evidence, see note, Bender ed , 127
McMeen v. Com.. 114 Pa. 300, 9 Atl. 878 N. Y. 46. Presumptions from and effect
(1886): 2 Chamb., Ev., 1073, n. 1, and of destruction or suppression of evidence,
cases cited see note, Bender ed., 33 N. Y. 501.
False Seal." If it is shown that a sealed
281 SPOLIATION. 435
it. 72 " Where a party has evidence in his power and within his reach, by
which he may repel a claim or charge against him, and omits to produce it,
this supplies a presumption of fact that the charge or claim is well founded.
This presumption attaches with more force in cases where a party, having
more certain and satisfactory evidence in his power, relies upon that which
is of a weaker or more inferior nature.'' 73 Neither one accused of crime 74
nor a party in a civil case should be affected, beyond his personal connection
with the transaction, by the conduct of ill-advised friends or other persons
in suppressing the evidence of witnesses. Only when a party himself is shown
to have procured 75 or connived at the absence of material witnesses will he
be affected by the inference that the evidence is withheld from the court
because if it were produced it would injure bis case. 76 Where a party is in
no way called upon to produce a witness, no adverse inference arises from his
failure to do so. 77 In proportion as it is to the interest of the party to submit
the evidence of an available witness, the jury are entitled to infer from his
neglecting to do so that his evidence, if produced, would not be favorable to
the party. 78 On the contrary, a party whose opponent has failed to establish
his own contention to the extent required by law, has no need of further evi-
dence on his own behalf. His failure, therefore, to produce witnesses or docu-
ments which are within his power or control gives rise to no deliberative in-
ference against him. 79
Effect of Knowledge. In the first place, that the inference should arise
72. Bryant v. Stillwell, 24 Pa. 314 (1855). App. 297 (1902). The admissibility of the
73. Savannah, etc , Ry. Co. v Gray, 77 Ga. testimony is, however, largely a question of
440, 3 S. E 158 (1886). administration. Wood v. Los Angeles Trao-
74. State v. Huff, 161 Mo. 459, 61 S. W. tion Co., 1 Cal App 474, 82 Pac. 547 (1905)
900, 1104 (1900); Deneaner v. State, 58 Tex. 77. Southern Ry. Co. v. Hobbs, 151 Ala.
Crim. 024, 127 S. W. 201 (1910). 335, 43 So. 844 (1907) ; Tauger v. New York
75. Minihan v. Boston Elevated Ry. Co., City Ry. Co, 104 N. Y. Supp 681 (1907).
205 Mass 402, 91 X. E 414 (1910): Moore 78. Ferrari v. Interurban St. Ry. Co., 103
v State, 45 Tex. Crim. 234, 75 S \V 497. N. Y. Supp. 134, 118 App. Div 155 (1907).
76. HoflTer v. Gladden, 75 Ga. 532 (1885): This is true of a witness who could only
Hausler v Com. Electric Co., 144 111 App. 643 corroborate evidence already produced. Rich-
(1908), judg nffd 88 X. E. 561 (1909): ter v. Solomon. 104 X Y. Snpp. 405 (1907):
Hodgins v. Bay City, 156 Mich 6*7. 16 De- Green v. Brooks. 215 Pa 492. 64 Atl. 672
troit l.eg X -222. 121 X. \V. 274 (1909): (1006)
Reitt-r v Zieirler, 121 X Y Supp 324 (1910): In a criminal case it has been held that
Moore v. Adams. 26 Okl. 48. 10^ Pac. 392 the reasons given by defendant's counsel for
(1910) : Green v. Brooks. 215 Pa 492. 64 Atl. the failure of the accused to call his wife and
672 (1906) ; 2 Chamb . Ev.. 1075. n. 5. and daughter as witnesses on his behalf cannot be
ca>os cited controverted by the prosecution. Rex. v. Hill,
A Deliberative Inference. Such an infer- 36 Nora Scotia R. 253 (1903). fifing Com. v.
ence. however, is deliberative rather than di- Scott. 123 Mass 241 ilS77>.
rcctly probative as to a res fjestrr fact Kim- 79. Southern Express Co v. B R Electric
ball v. O'Dell & Eddy Co. 122 X Y. Supp. Co.. 126 Ga 472. 55 S E 254 (1006) : Cooper
755 (1910) \Yhere a party has failed to use v Upton. 65 \Y. Va 401. 64 S E. 523 i 1909) :
a deposition available to him the same infer- 2 Chamb.. Ev., 1075, n 8, and cases cited,
ence arises Thompson v. Chappell. 91 Mo.
435
PRESUMPTIONS; INFERENCES OF FACT.
282
it must be shown that the party to be affected by the inference knows that he
has better and more convincing evidence which he fails to produce 80 and is
aware that such fact is material to the issue between the parties. 81 It is
equally necessary that the party alleged to have suppressed the evidence of a
witness knows or could ascertain where the latter is. Even if a witness would
be valuable if secured, it must appear that the party to be affected by the
inference could have procured the attendance of the witness by the use of
reasonable diligence. 82 In an exceptional degree, an omission by a party to
produce important testimony relating to a fact of which he has knowledge
and which is peculiarly within his own reach and control, as a general rule,
raises the presumption, open, of course, to explanation, 83 that the testimony, if
produced, would be unfavorable to him 84 or that a particular fact which he
could show if it existed and which, if he could prove it, would be very much
to his advantage, is not established because it does not exist. 85
Equal Availability. It is said that no inference arises against a partv from
failure to call a material witness when the latter is equally available to his
opponent. 86 It is not sufficient, however, in the way of good faith to the
court, for a litigant to produce his own natural witnesses, 87 his relatives, 88
employees R9 and persons similarly situated, in court and permit and even
invite the other side to undertake the dangerous task of calling them himself.
supra: Johnston v. St. Louie & S. F. R. Co.,
150 Mo. App. 304, 130 S. W. 413 (1910).
85. Aragon Coffee Co. v. Rogers, 105 Va.
51, 52 S. E. 843 (1906) ; Despard v. Pearcy,
65 W. Va. 140, 63 S. E, 871 (1909). Where
a friendly witness knows exculpatory facts if
any one does, a failure to call him suggests an
inference that such facts do not exist. An-
derson v. Cumberland Telephone & Telegraph
Co., 86 Miss. 341, 38 So. 786 (1905).
86. Scovill v. Baldwin, 27 Conn. 316
(1858): Princeville v. Hitchcock, 101 111.
App. 5S8 (1901): Farmers' Bank v. Worth-
ington, 145 Mo. 91, 46 S. W. 745 (1898);
In re Darrow's Estate, 118 N. Y. Supp.
1082, 64 Misc. 224 (1909) : Daggett v. Cham-
plain Mfg. Co.. 72 Vt. 332. 47 Atl. 1081
(1900); 2 Chamh., Ev., 1075b, n. 1, and
cases cited
87. \Yestern, etc.. R. Co. v. Morrison, 102
Ga. 319, 29 S. E. 104. 66 Am. St. Rep. 173.
40 L. R. A. 84 (1897) : Kenyon v. Kenyon, 88
Hun 211, 34 N. Y. Supp. 720 (1895).
88. Carpenter v. Pennsyh-ania R. Co., 43
JV Y. Supp. 203, 13 App. Div 328 (1897);
People v. Hovey. 92 X. Y. 554 (1SS3).
89. Western, etc., R Co. v. Morrison,
supra: .\iichigan Cent R. Co. v. Butler, 23
Ohio Cir. Ct. 459 (1902).
80. Davis v. State, 4 Ga. App. 441, 61 S. E.
843 (1908).
81. Rochester German Ins. Co. v. Monu-
mental Sav. Ass'n, 107 Va. 701, 60 S. E. 93
(1908).
82. Xaughton Co. v. American Horse Exch.,
97 N. Y. Supp. 387, 49 Misc. 227 (1906). It
naturally follows that where the party against
whom the inference is invoked has no knowl-
edge or means of acquiring it, as to the resi-
dence of the witness or the whereabouts of the
document in question, no infirmative adverse
inference arises from his failure to produce.
Mutual Industrial Indemnity Co. v. Perkins
(Ark. 1906) 98 S. W. 709; Texas & N. 0. R.
Co. v. Harrington (Tex. Civ. App. 1906), 98
S. W. 653.
83. 431, supra: 2 Chamh.. Ev , 1070c.
84. Bone v. Hayes, 154 Cal. 759, 99 Pac.
172 (1908); Missouri Pac. Ry Co. v. Ken-
nett. 79 Kan. 232, 99 Pac. 269 (1909) -. Howe
v. Howe, 199 Mass 598, 85 X. E. 945 (1908) :
Mullen v. J J. Quinlan & Co., 195 X Y. 109,
87 X. E. 1078 H909), affg. judg. 108 N. Y.
Supp. 1141. 124 App. Div. 916 (1908): 2
( hamb.. Ev., 1075a, n 7 and cases cited
Corporations. The same rule applies to cor-
porations. Missouri Pac. Ry. Co. v. Kennett,
283 SPOLIATION. 4-05
Still less can any adverse inference arise where a party subsequently produces
a present witness whose testimony he is said to have attempted to suppress. 9 "
It is for the jury, within the bounds of reason, to say what inferences, if any.
are to be drawn, under all the circumstances, from the failure of the parties
respectively to call the particular person as a witness in any given case. 91
Explanation Permitted. The inference against spoliation, like every real
presumption or assumption of procedure, is rebuttable. Either party is at
liberty, so far as the inference affects him, to explain why an available and
material witness, apparently helpful to a bona fide contention, was not called." 2
A party is always at liberty to show that the absence of missing witnesses is
not caused by his fault and that he has made every reasonable effort to pro-
cure their attendance. 91 * No adverse inference can properly be drawn where
the facts covered by the testimony of the witness in question have already been
fully given by other witnesses and the person not called could, therefore, have
furnished only corroborative 94 or cumulative 95 evidence to an unnecessary
degree. 96 Where a given class of evidence is made privileged by statute, a
sufficient explanation is deemed to have been offerd and no adverse inference
is said to arise from any non-production of the privileged witness. 97 So no
adverse inference can be drawn where a party is prevented by the operation
of some other rule of law 9lS from calling the particular " witness whose knowl-
edge would be most conclusive on the matter.
90. Fleck v Cohn, 115 X. Y Supp. 652, 131 94. United Rys. & Electric Co. of Baltimore
App. Div. 248 (1909). City v. Cloman, 107 Md. 681, 69 Atl. 379
91. Gallagher v. Hastings, 21 App Cas. ( 1908) ; Sugarman v. Brengel, 74 N. Y. Supp.
D. C. 88 (1903); Harriman v. Reading, etc. 167, 68 App. Div. 377 (1902).
St. R. Co, 173 Mass. 28, 53 X. E. 156 95. Haynes v. McRae, 101 Ala. 318, 13 So.
(1899): Reehil v. Fraas, 114 X. Y. Supp. 270 (1893): Mooney v. Holcomh, 15 Or 639,
17, 12!) App. Div 563 (1908) ; 2 Chamb., Ev., Iti Pac. 716 (1888) ; 2 Chamb.. Ev., H>7">c.
1075b, n 6, and cases cited. n. 4. and cases cited.
92. People v. Clark, 106 Cal 32, 39 Pac 53 96. Ellis v! Sanford, 106 Iowa 743. 75 X. W.
(1895); Tuthill v. Belt Ry Co of Chicago. 660 (1898): Higman v. Stewart. 38 Mich.
145 111. App. 50 (1908) ; State v. Brannum, 513 (1878) ; Meagley v. Hoyt, 125 X. Y. 771,
95 Mo. 19, 8 S. VV. 218 (1888) : 2 Chamb., 2(5 X. E 719 (1S01) : 2 Chamb.. Ev., 1075c,
Ev., 1075c, n. 1, and cases cited. n. 5, and cases cited.
93. State v. Hotran, 67 Conn. 581. 35 Atl. 97. Arnold v. City of Maryville, 110 Mo.
508 (1S96): Reehil v. Fraas, supra ; State v. App 254, 85 S. W 107 I 1905 i. See also.
Ogden. 39 Or. 195. 65 Pac. 449 (1901); 2 Baldwin v. Brooklyn Heights R Co, 91 X.
Chamb, Ev.. 1075c, n 2 and cases cited V. Supp 59. 00 App. Div 496 M004). But
It has even been held that on a second trial while no inference, strictly speaking, may
of a cause, it is proper to admit testimony arise in such cases it will be difficult to pre-
accounting for the failure of a witness to vent the jury so far as the party could have
testify at first trial. McDonald v City Elec- called a witness, from drawing such delibera-
tric Ry Co, 144 Mich. 379, 13 Detroit Leg. tive deductions from his course as they deem
X. 252, 108 X. W 85 (1906) On the con- warranted. Kirkpatrick v. Allemannia Fire
trary, it has been held that a party was not Ins Co.. 92 X Y Supp. 466, 102 App. Div.
at liberty to introduce evidence accounting 327 (1905).
for the absence of a particular witness. Gil- 98. Cartier v. Troy Lumber Co.. 138 Til.
him v. Xew York, etc., Co. (Tex. Civ. App 533, 28 X E. 932. 14 L. R A. 470 (1891).
1903), 76 S. W. 232 99. Adams v. Main, 3 Ind App. 232, 29
PRESUMPTIONS ; INFERENCES OF FACT.
284
Equity Causes. The inference against spoliation from failure to call a
material witness operates in equity as at law. 1 Admiralty Xuits may exemplify
the operation of the same deliberative inference. 2
Criminal Cases. In criminal cases the same principles of reasoning ap-
ply. Failure by the defendant to call a material witness who has important
knowledge gives rise to an adverse inference of fact ' which is strong in pro-
portion to the extent to which it would be reasonable to expect that he would
produce the witness, if favorable to him, rather than leave it for the prosecution
to do so. 4 The force of the inference is much affected where the witness in
question is one naturally connected with the prosecution 5 e.g., is the president
of a prosecuting corporation. The same inference operates against the prose-
cution, under similar circumstances. 7 Suppression of Evidence in general is,
in criminal, as in civil cases, usually cogent circumstanctial evidence of guilt. 8
436. [Onmia Contra SpoliatoremJ ; Failure to Testify. 9 Where a partv de-
clines to submit to an order U( or request lx for a physical examination, 12 to
appear in court on the trial of his cause, 13 or to testify as. a witness, 14 on his
N. E. 7 ( J2, ;>0 Am. St. Rep. 206 (1801);
Carter v. Beale, 44 X. H. 408 (1862). A
party' may forestall the inference from sup-
pression by . explaining, as part of his own
case, why an important piece of evidence,
eg., the testimony of an eye witness, was
not produced. Macon Ry. & Light Co. v.
Mason, 123 Oa. 773, 51 S. E. 569 (11)05)
1. Eckel v. Eckel, 49 X. J. Eq.. 587 (1892) ;
Hall v. Vanderpool. 156 Pa. 1.V2 (1893): '2
Chamb., Ev., 1075d, n. I, and cases cited.
2. The Ville de Havre, 7 Ben. (U. S.)
328 (1874).
3. State v. Cousins, 58 Iowa 250, 12 X. W.
281 (1882) ; People v. Hendrickson, 53 Mich.
525, 19 X. W 169 (1884); People v. Hovey,
92 N. Y. 554 (1883) : Com. v. McMahon. 14.',
Pa. 413, 22 Atl. 971 (1891) : 2 Chamb. Ev.,
1075e, n. 1 and rases cited.
4. Com. v. Webster, 5 Cush. (Mass.) 295.
52 Am. Dec 711 (1850); Ormsby v. People.
53 X. Y. 472 (1873).
5. See, however, Clifton v. State, 46 Tex.
Crim. 18, 79 S. W. 824 (1904).
6. People v. McGovern. 94 X. Y. Supp. 662.
105 App. Div. 296 (1905), it is error, under
sujch circumstances, to instruct the jury
that they may draw any presumption in
favor of the prosecution from defendant's
failure to call the president as a witness.
7. State v. Buckman, 74 Vt. 309, 52 Atl.
427 (1901): State v. Smith, 71 Vt. 331, f
Atl 219 (1899).
8. For example, that a defendant, on his
arrest, made away with the note alleged to
have been forged [State v. Chamberlain, 89
Mo. 129 (1886)], or offered to destroy cer-
tain articles furnishing incriminating evi-
dence of barratry (Phoenix Ins Co v. Moog,
78 Ala. 284, 307 (1884) do not differ, in
any essential particular, from other facts cir-
cumstantially tending to establish guilt.
9. 2 Chamberlayne, Evidence, 1076-
10761)
10. Austin, etc., R. Co. v. Chick. 97 Tex.
172, "7 S \V. 403 (1903), revg (Civ. App.
1903), 73 S W. 569.
11. Gulf. etc.. Ry. Co v. Booth (Tex. Civ.
App. 1906). 97 S W. 128. See Pennsylvania
K. Co. v Durkee, 147 Fed 99. 78 C. C. A.
107 (1906)
12. See EVIDENCE BY PERCEPTION,
infra, 1131 et seq. Austin, etc., R. Co v.
Cluck, supra .The same rule applies to Ihe
examination of a minor child. Houston Elec-
tric Co v. Lawson (Tex. Civ App. 1904), 85
S. W. 450.
13. Cole v. Lake Shore, etc.. K,. Co., 9.T
Mich. 77, 54 X. \Y. 638 (1893) : Johnston v
.McKenna, 76 X. J. Eq. 217, 74 Atl. 284
(1909) : Brown v. Shock. 77 Pa. 471 (18751
14. Central Stock, etc., Exch. v. Chicaf"
Bd of Trade, 196 111 396, 63 X. E. 74<>
(1902) ; Kelley v. City of Boston, 201 Mass
86, 87 X T . E 494 (1909) : Cole v. Lake Shore.
etc.. R. Co., 95 Mich. 77, 54 N. W 63^'
(1893); Connecticut Mut. L. Tns. Co v.
Smith. 117 Mo. 201. 22 S. W. 628. 38 Am St.
285 SPOLIATION. 437
own behalf iu a suit as to which he himself is possessed of material knowledge, 15
an adverse inference of suppression naturally arises. 16
Effect of Inference. As has been said, 17 the iufirmative inferences against
the defendant from his failure to testify do not create independent facts in
favor of the contention of the opposing party 18 but when that side definitely
asserts the existence of a fact which the suppressing party could readily dis-
prove, if it were false, such evidence as can be produced in favor of the con-
tention made will be judged in connection with the circumstance of the sup-
pression. 10
(.'riminal Cases. While it is frequently provided by statute that no in-
ference shall be drawn against one accused of crime because he does not take
the stand as a witness in his own behalf, 20 and although courts have charged
juries to the same etf'ect, 21 the precept is one with which it is practically im-
possible for the jury to comply. If the situation under which a defendant fails
to take the stand is such that a logical conclusion arises of conscious inability
to gain by so doing, an infirmative inference must be drawn against him by
any tribunal using reason as its means for ascertaining truth. 22
437. [Omnia Contra Spoliatorem] ; Removal or Concealment. A party may
suppress the evidence of witnesses in other ways. He may, for example, ar-
range that the witness shall not be within the reach of a subpoena or other
compulsory process, when his attendance is desired, by concealing him or by
forcing or inducing 23 him to leave the neighborhood, county, state or country.
Kep. 656 i 1893); Anker v Smith, 87 X. Y. 17. 431, supra; 2 Chamb, Ev., 1070b.
Supp 479 (l!)04i; 2 Chamb., Ev., 1076, n. 18. Diel v. Missouri Pac. R. Co., 37 Mo.
5, and cases cited. App. 454 (1889).
15. Bastrop State I'.ank v Levy. 106 La. 19. I'nioii Pac. H. Co. v. Hepner, 3 Colo.
580, 31 So 164 (1902); Jackson v Blanton, App 313, 33 Pac 72 (1893); Heath v. Wa-
2 Baxt. iTenn t (':> il>72: topperthite v. ters, 40 Mich. 457 (1879); Bum-ley v Jones,
London n Nat Bank, 111 Va. 70. 68 S. E. 79 Miss. 1, 29 So 1000 ( 1901 ); 2 Chamb., Ev.,
3!I2 i 1910) ; 2 Chamb., Ev., 1076, n. 6, and 1076a, n. 3 and cases cited A failure to
cases cited testify is, therefore, in the nature of an ad-
16. Western Union Tel Co. v. McClelland, mission by conduct ( 559 et seq. : 2 Chamb.,
38 hid. App 578, 78 A. E 672 (1906) ; Perk- Ev., 1392 et seq.) as well as a deliberative
ins v Hitchcock, 49 Me. 468 (I860) ; Nuttings fact of subjective relevancy. < 34, 36.
v. Kings County El. K Co., 47 X V. Supp. supra: 1 Chamb., Ev.. 52, 56.)
327. 21 App. Div. 72 (1897) -. Kirby v Tall- 20. Com. v Hanley, 140 Mass. 457, 5 X. E.
madge, 160 T S 379, 16 S '."t. 349. 40 L ed. 468 (1886)
463 (1S!>6) ; 2 Chamb, Ev.. 1076. n 7 and 21. I". S v Pendergast, 32 Fed. 198 (1887)
cases cited Trstifii for Adversary. Prac- See also. People v. Bills. 114 X. Y. Supp
tically the same adverse inference arises 587, 129 App. Div. 798 (1909); 2 Chamb,
when-' a party refuses to testify as a witness Ev.. 1076b, n. 2. and cases cited
foi liis iuhcrsary either orally, in response 22. People v. Smith, 144 111 App. 129
to interrogations (Locust v. Handle (Tex. (1908), judg. aff'd 87 X E 885 (1900)
Civ App. 1907), 102 S. W. 946^ or by depo- See also. People v Smith. 100 X*. Y. Supp
sition iBelknap Hardware Co. v. Sleeth. 77 250. 114 App Div. 513 H906).
Kan 16L '3 Pac .'.sO , lOO^i. at the re 23. Onikshank v. (iorden. 118 X*. V. 178,
quest, of the latter. Locust v Randle (Tex. 23 X E (1890): 2 Chamb., Ev., 1077 and
Civ. App. 1907) 102 S W 946. cases cited.
438 PRESUMPTIONS; INFERENCES OF FACT. 286
The infirmative inference, from spoliation under such circumstances, is al-
most a necessary and intuitive one. 24
Other Modes of Suppression. Other methods of suppressing the testimony
of a witness are open to a litigant. For, example, he may dissuade a witness
from appearing, 2r> or he may call him as a witness but refrain from eliciting
from him any evidence on a particular point. 26
438. [Omnia Contra Spoliatorem] ; Probative Force of Inference. It mav be
said that, in any particular instance, the probative force of the inference from
spoliation will be found to be proportionate to the degree of moral obliquity in-
volved in the course pursued, 27 according as the testimony of. the witness is
essential to the case 2S or whether the evidence suppressed would have been
available to the suppressing litigant as part of his original case 29 or in rebuttal
of that made out by his adversary. 30
Statutory Regulation. It is sometimes provided by statute or in some other
way, that no inference shall be drawn from the parties claiming a privilege
accorded by the rules of the trial, e.g., declining to allow one's attorney :u or
physician 32 to take the stand as a witness. Such a statute may, and frequently
does enact that no adverse suggestion shall arise from the fact that husband and
wife claims a right not to testify against the other. 33 So far as the mind is con-
cerned, such a rule is nugatory. Its operations cannot be thus controlled. 34
The only result which can be effected is that the trier should not be allowed to
follow his reason ; rendering a verdict which, pro tanto, he may know to be
false.
Strength of Inducement to Speak. The probative effect of the inference
24. For when a party sseeKs to prevent a Chamb., Ev., lOTTa, n. 2. and cases cited,
full investigation into the truth of a matter 29. Bent v. Lewis, 88 Mo. 462 (1885) : Mer-
by removing a witness beyond the reach of rill v. Grinnell, 30 N. Y. 594 ( 1864 ) : Wimer
process [Carpenter v. Willey, 65 Vt. 168, v. Smith, 22 Or. 469, 30 Pac. 416 (1S91): 2
26 Atl. 488 (1892)], he inevitably exposes Chamb., Ev., 1077a, n. 3, and cases cited
himself to the adverse presumption that he 30. Schwier v. New York Cent., etc., R. Co.,
is aware that the evidence of the witness 90 N. Y. 558 (1882).
will be hostile to him; and that he also 31. Gardner v Benedict. 75 Hun 204. 27
feels that he has no evidence which will legiii- N. V. Supp. 3 (1894): 2 Chamb., Ev.,
mately control his testimony 1077b, n. 1, and cases cited See Privilege of
25. Houser v. Austin, 2 Ida. 204. 10 Pac. 37 Witnesses.
(1886) : Chicago City K. Co v. McMahon. 103 32. Brackney v Fo.ule. 156 Ind. 535. 60
Til. 4S5, 42 Am. Rep. 29 (1882): 2 Chamb., X. E 303 (1901); Lane v. Spokane Falls, etc .
Ev. 1077. n. 3. and cases cited. R. Co., 21 Wash 11!). 57 Pac 367. 75 Am St
26. Bornhofen v. (Jreenehaum. 68 111. App. Rep. 891. 40 L. R. A. 15:5 (1899) See Privi
.645 (1896): Arbuckle v Templeton 65 Vt. lepe of Witnesses.
205,25 Atl 1095 (1S93). 33. Xational German-American Bank v
27. 2 Chamb.. Ev.. ]077a. 1077b. Lawrence. 77 Minn. 282. 79 N W. 101(5. so
28. East Tennessee, etc.. R Co. v Doujr- X W. 363 (1899) : Johnson v State. 63 Miss
lass. 94 Ga. 547. 19 S. E 885 i 1877) : Versrin 313 (1885) See Husband and Wife.
v. Sapinaw. 125 Mich 499. 84 X W < 1901 > . 34. McCooe v. Dighton. etc., St. H. Co.
Minch v. Xew York. etc.. R. Co.. 80 X. Y 173 Mass. 117, 53 1ST. E. 133 (1899).
Supp. 712, 80 App. Div. 324 (1903); 2
i )s T SPOLIATION. 430
from silence is, plainly, gauged by the inducement to speak could speech
avail. Thus, where the charge to be rebutted is one of fraud, 35 or illegality >i6
or where, for some other reason, an adverse case has been made out which calls
urgently for a reply, the infirmative inference from suppression gains in pro-
bative force.
439. [Omnia Contra Spoliatorem] ; Writings; Destruction A similar in-
lirmative inference arises from the suppression of material documents within
the defendant's control which must necessarily help him if his present story or
contention be true.' 17 The distrust of the spoliating party in the true merits of
his contention become glaringly obvious, in case of intentional and calculated
destruction by him of such writings 38 for the purpose of preventing their use
as evidence. The logical reaction against the party who has been guilty of
such a course becomes still further intensified where the document destroyed is
the absolutely determining factor in the case. 39
Administrative Punishment and Indulgence. Tt is clear that none but those
conniving at the act of spoliation will be affected by any inference from it. 40
The significant circumstance to which administration is forced to direct its atten-
tion is the relation existing between the document destroyed and the interest of
the destroyer, it is very reasonably inferred that material, highly probative or
even constituent writings could have been destroyed by a party litigant in a
controversy to which the writing bore this relation only because the spoliator
knew that their contents if produced to the court would injure his chances of
success. 41 In any case of destruction the inference invalidates the evidence of
the spoliator 42 or, if the form of expression be preferred, it increases the pro-
bative weight of his opponent's case by the facts which the spoliator may rea-
sonablv be assumed to have known and used as constituting the motive for his
35. \\here the party himself declines to ( 1898) : 2 Chamb., Ev., 1078, n. 2. and cases
testify the presumption is exceptionally cited. The inference cumulates in seriousness
strono-. Stephenson v. Kilpatrick, 106 Mo. where the accused destroys books and papers
262, 65 S. W. 773 (1901) ; Brown v. Shock. after arrester seeks to conceal them. Rober-
77 Pa. 471 (1*751 ; 2 Chamb., Ev., 1077c, son v. State, 40 Fla. 509, 24 So. 474 (1898) ;
n i State v. Baldwin. 70 Iowa 180. 30 X. W. 476
36. Cheney v. Gleason, 125 Mass. 106 (1886).
(1878); Knight v. Capito, 23 W. Va 630 39. Lucas v. Brooks, 23 La. Ann. 117
(1884). (1871); Betts v. Jackson, 6 Wend. ( X. Y.)
37. State v. Rosier. 55 Iowa 517. S X. W. 173: Phoenix Ins. Co. v. Moo?, 78 Ala. 284,
345 (1881) : Morrow v Missouri Pac. Ry Co. :i.i7 (1884) : 2 Chamb.. Ev.. 1078. n. 3. and
140 Mo. App. 200 (I910i: 2 Chamb.. Ev . cases cited.
KITS. n. 1. and oases cited. 40. Clark v Ellsworth. 104 Towa 442. 73
38. -Johnson v. White. 40 Cal 328 MR7.*n : X. W. 1023 n8<Ni : Blake v. Blake. 56 Wis.
Tanton v. Keller. 167 111. 120. 47 N*. E 302. 14 N. W. 173 182K
376 i 1897) ; Sullivan v Sullivan. 188 Mass. 41. Stone v. Sanborn. 104 Mass. 310, 6 Am.
380. 74 X. E 608 (10O5) : Ames. v. Man- Rep. 238 (1870) : 2 Chamb.. Ev.. 1078a. n.
hattan L. fns Co.. 52 N Y. Supp 50. 31 Apn 2. oml cas e <- cited.
Div. 180 (189^): The Olinde Rodriguez 42. Downing v. Plate. 90 Til. 268 (1878);
174 U. S. 510, 19 Sup. Ct 851, 43 L. Ed. 1065 Pomeroy v. Benton. 77 Mo. 64 (1882).
440 PRESUMPTIONS ; INFERENCES OF FACT. 288
act of suppression. 43 The presumption is applicable only where the element of
intentional fraud or wrongful conduct is involved, and the presumption is one of
fact which may be overcome by explanation of the circumstances. 44 The act of
spoliation calls not only for punishment against the offender but for concession
to his opponent. Further, marked administrative indulgence will be accorded
the party against whom a spoliation is directed. The court will consider the
means left to him for proving his case and be more readily satisfied than would
be customary that a prim a facie case has been made out. 45
Admiralty. " It is certain/' said Sir William Scott, 4 * 5 " that by the law of
every maritime court of Furope, spoliation of papers not only exclude? further
proof, but does, per se, infer condemnation, founding a presumption juris et de
jure, that it was done for the purpose of fraudulently suppressing evidence
which, if produced, would lead to the same result; and this, surely, not with-
out reason, although the leniency of our code has not adopted the rule in its
full vigor, but has modified it to this extent that, if all other circumstances are
clear, this circumstance alone shjfll not bo damnitorv, particularly if the act
were done by a person who has interests of his own that might be benefited by
the commission of the injurious act. But though it does not found an absolute
presumption juris et de jure, it only stops short of that, for it certainly gen-
erates a most unfavorable presumption." The English rule, as stated above,
prevails also in the United States. 47
Explanation Permitted. The party to be affected by the inference may
as a matter of course, explain, if he can, the course which he has adopted. 48
What shall be deemed to constitute " Spoliation '' within the meaning of the
phrase as employed in admiralty cases, has been luminously commented upon by
Dr. Lushington. 40 Tie says "In the Rising Sun (2 Rob. 104) Lord Stowejl
lays down the doctrine, that spoliation does not enure to condemnation ; with
other suspicious circumstances, it shuts the door against further proof. To
that doctrine I entirely assent.'' 3 "
5$ 440. [Omnia Contra Spoliatorem] ; Failure or Refusal to Produce. A party's
failure to produce a document, if it be within his power to submit it to the
court almost inevitably leads to an inference that he did not produce the
paper because he knew that its contents were adverse to his contention ; l>1 or,
43. Case v Parmelee. 87 Til. 320 (1877): 4-9. The Johanna Emelie, 18 .Tur. 703
Murray v. Lepper. 90 Midi. 135. 57 N. W. (1855).
1007 (1804). 50. The Hunter, supra.
**.. Mastiri v. Noble (Kan. 1007), 157 Fed. 51. Wilson v. Griswold. 79 Conn. 18. 63
506. Atl. 650 (1006): Battersbee v. Calkins. 128
45. Anon., Lord Raymond T?ep. 731 <1702). Mich. 560. 87 N. W. 700 ilOOl): Barber v.
46. The Hunter, 1 Dods.Adm.4SO (1815): Lyon. 22 Barb. (X. Y.) 62 (1856): Heller
2 Chamb., Ev . 10/Sb. n. 1 v. Beal. 23 Ohio Cir. Ct. 540 (1002) : Lee v.
47. The Pizarro, 2 Wheat. (U. S.) 242n Lee. 9 Pa. 160 (1848); 2 Chamb.. Ev.,
(1817). 1070, n. 1. and cases cited. The same in-
48. The Pizarro, supra. ference applies in case of a corporation.
289 SPOLIATION. 440
possibly, that it does not exist. 52 If the matter is one as to which a certain
record would be decisive, 53 or which may be proved or disproved by the pro-
duction of a book^of account, 54 and the party of whose case these documents, if
favorable, would naturally be part, has them in his possession but fails to
produce them or explain satisfactorily their nonproduction, contenting himself
with offering plausible secondary 55 and inconclusive evidence, 56 the mind finds
no difficulty in reaching the conclusion that so peculiar a course is not con-
sistent with good faith to the court. A tribunal would be well justified, as
a matter of reason, in feeling that the party knows that the fact is otherwise,
than he claims it to be "' and that, upon a full disclosure of all the circum-
stances affecting the case he would not deserve to succeed.
Use of Secondary Evidence; (1) Spoliating Party. Under the general
canon of administration requiring that, in furtherance of justice, primary evi-
dence must be produced, 58 the party having the original document must, if he
desire to prove its contents, produce the writing itself. It follows that one
who deliberately destroys a document in his possession with a view to gain
fraudulent advantage will not be permitted to introduce secondary evidence
of its contents. 59 Explanation, however, is at all times receivable. Where
the destruction was done iu good faith, for example, under well-intentioned
though injudicious advice, the secondary evidence is receivable. 60
Use of Secondary Evidence; ('2) Non-spoliatiny Party. As will be more
fully seen hereafter,' 51 when the original writing is in possession of a third
person who cannot be forced to submit it to the tribunal after reasonable notice
to produce,' 52 where it has been destroyed without fault of the proponent, it can-
not be found after reasonable search, or is held by the opposite party who,
having been requested, refuses to produce the primary evidence, secondary
\ arnado v. Banner Cotton Oil Co., 126. La. 56. Thompson v. Chappell, 91 Mo. App. 297
51)0. 52 So. 777 (1910). (1901) ; Wimer v. Smith, -22 Or. 469. 30 Pac.
52. Safe Deposit & Trust Co. v. Turner, 98 416 (1892).
Md. 22, 55 Atl 1023 (1903). No presumption 57. McGuiness v. LeSueur County School-
arises where the evidence points rather to Dist. No. 10, 39 Minn. 499. 41 X W. 103
the conclusion that the document has been (1888); Rockwell v. Merwin. 45 X~ Y. 166
lost. Clark v. Hornbeck. 17 X. J. Eq. 430 (1871): Sumrell v. Atlantic Coast Line R.
,1865). Co., 152 N. C. 269, 67 S. E 080 (1910): 2
53. Towne v. Milner, 31 Kan. 207. 1 Pac. Chamb., Ev.. 1079, n. 8. and cases cited.
013 .'18841: State v AtKinson. 51 X. C. 65 58. Kiipra. 22T et seq.: 1 Chamb., Ev.,
l*.->si : -2 Chamb , Ev . 1079 and case? 464 et scq
c j te d. 59. Rajrley v. McMickle. 9 Cal. 430. 446
54. Cartier v Troy Lumber Co.. 138 Til. (1858) : Blade v. Xoland. 12 Wend X*. V. 173
533. 28 X K. 03-2. 14 L R. A. 470 (1891): (1834).
Cross v. Hell. 34 X. H. 82 (185fi): Schenck 60. Tobin v. Shaw, 45 Me. 331 (1858);
v Wilson. 2 Hilt, i X. V) 02 I 15S) : Atty.- Risr<rs v Tayloe. 9 Wheat. (U.S.I 4S7 (1824 K
C.en. v. Kallidav. 26 U. C. Q B. 317 'I*fi7^ : 61. See DOCUMENTARY EVIDENCE. >v-
2 Chamb.. Rv.. 1079. n 5. and ca=es cited. frn 1099.
55. Merwin v. Ward. 15 Conn 377 (1843) : 62. Hilbert v. Ross. 7 M. & W. 121 < 1840) ;
supra. S 150 et *eq.: \ Chamb.. Ev.. 339 2 Chamb., Ev.. 1079b, n. 2, and cases
et seq. cited.
441 PRESUMPTIONS; INFERENCES OF FACT. 290
evidence of contents will be received. 68 Under the inference of spoliation, in
odium spoliatoris, as is said, where the proponent has been tortiousJy deprived,
by act of the opponent, of an original document to the possession of which he
is entitled, he may as a matter of course, and without notice, offer secondary
evidence of its contents. 04 .1 fortiori the voluntary destruction of such a
document by the opponent confers the right to use secondary evidence of its
contents." 5
441. [Omnia Contra Spoliatorem] ; Refusal to Produce on Demand. Where
a party's attention has been pointedly called to the matter by a notice to
produce, * 5 his failure to comply with the notice is more significant than a
bare neglect which may have been due to oversight or accident. While sucli
a refusal does not, in itself, constitute evidence of any probative or constituent
fact involved in the inquiry , ti7 it is an important deliberative one 68 which in-
creases, for the reasons stated, 159 the probative effect of the parol evidence given
by the party asking production of the document which is, by this refusal, made
the best evidence within his power to offer.
Summons, Order of Court, etc. When a summons 70 or other direct order
of court 71 is made requiring the production of a particular document a refusal
to comply with it gives rise to correspondingly greater certainty that the
writing which is being held is adverse to the contention of its possessor. Where
a litigant has testified to the contents of documents in his possession and the
court has declined to order production of the writings, it is said that, no infer-
ence of suppression arises. 72
Social Consequences of Suppression. Where production is sought by the
other side and a party is notified to produce books of account or the like,
it has been held that the only effect of a failure to produce these documents on
notice is that secondary evidence may now be given by the proponent of their
contents. 7 " So considered, a trial at law resembles, as it were, the playing of a
63. Livingston v. Rogers. 2 Johns, fas. 42 C. C. A. 188 (1900); 2 Ohamb., Ev.,
(X. Y.) 488 (180-2). 1080, n. 2, and oases cited.
64. Crimes v. Kimball, 3 Allen (Mass ) 68. 34: 1 Chamb., Ev., 52.
518 (1862); Hede v. McQuaid, 11 Tush. 69. 430, 431: 2 Chamb., Ev., 1070.
(Mass.) 352 (1853) 1070b.
65. Blake v. Fash. 44 111. 304 (1867) : 70. Darby v. Roberts, 3 Tex. Civ. App. 427
Broadvell v. Stiles, 8 N. J. L. 58 (1824): (1803).
Parker v Kane, 4 Wis. 1 (1855) : 2 Chamb., 71. Mills v. FelloAvs, 30 La. Ann. 824
Kv.. 107!tb, n. 5. and cases cited. (1878) : Devlan v. Wells. 65 X. J. L. 213, 47
66. Life, etc.. Ins. Co. v. Mechanics' F. Tns. Atl. 467 (1000).
Co., 7 Wend. (X. Y.) 31 (1831 i. See also, 72, Roberts v. Francis, 123 Wis. 78. 100 N.
2 Chamb., Ev.. 1080, n. 1. and cases cited. W. 107f> (1004).
67. Union Pac. R. Co. v. Hepner. 3 Colo. 73. (artier v. Troy Lumber Co.. supra.
App. 313. 33 Pac. 72 (1802) : Cartier v. Troy This is an entirely logical development of the
Lumber Co.. supra : Lock-wood v. "Rose. 125 theory that litigation is a matter primarily
Ind. 588. 25 X. E. 710 (1800) : Wvlrle v. Vow or even e-clusively of the parties. 132: 1
Jersey Xorthern R. Co., 53 X T . Y. 156 (1873) : Chamb.. Ev., 303.
Missouri, etc., R. Co. v. Elliott, 102 Fed. 96,
291 SPOLIATION. 442, 443
*> y
game in which no inference should be drawn against a player merely be-
cause he claims the benefit of a rule established in it. Xo one, it is thought,
can be required to aid his opponent. 74 In a very just sense, however, an In-
ference of suppression, deliberative it is true 75 but a fair presumption from
spoliation, necessarily arises against the withholding party in such cases. 76 To
be sure, the presiding judge frequently rules otherwise. But the court is im-
potent to control the reasoning faculty of a coordinate branch of the tribunal.
His power is limited to nullifying the results by ordering a new trial.
442. [Omnia Contra Spoliatorem] ; Mutilation, Alteration, etc. The same
logical deduction from spoliation with suitable modifications, arises in case of
the mutilation, 77 alteration, concealment or removal 78 of documents known to
be valuable for evidentiary purposes, or any material portion of such a docu-
ment. 70
443. [Omnia Contra Spoliatorem] ; Real Evidence. Much the same delib-
erative inference from spoliation arises where a critical piece of real s<)
evidence is withheld from the tribunal by a party whose interest to produce
it, were the inferences arising from it favorable to himself, is obvious. 81 Thus,
where the evidence was conflicting as to whether a rope the parting of which
caused the death of a seaman was defective, the doubt should be solved against
the vessel because of her failure to produce the rope which was in her posses-
sion. 82 In much the same way, where the issue relates to the condition of a
74. Hector v. Rector, 8 111. 120 (1846); altered or erased the burden is upon one who
Spring Garden Mut. Ins. Co. v Evans, 9 Md. would attack it to show that the alteration
1 (18.")6) See also, Life & Fire Ins. Co. was made after execution. The court re-
Mechanirs' F. Ins. Co., supra; 2 Chamb ., Ev., marks that the authorities are in hopeless
lOHOa. n. 4, and cases cited conflict on the question but that most of the
75. 430, 431; 2 Chamb, Ev., 1070, deeds in the state are written by laymen
10701). and that the great majority of the alterations
76. Even objecting to evidence may stand are made by them in ignorance and inno-
in the same position. Sutton v. Davenport, cently and it would be a great hardship and
27 L. J C. P. 54 (1857). For an illustrative would upset titles to adopt any other rule,
instance in an English case, see 2 Chamb, Wicker v. Jones, 159 X C 102. 74 S. E. 801,
Ev, 1080a, notes 8 and 9 and cases cited 40 L. R A. (X. S.) 69 (1912).
77. Shells v. West. 17 Cal 324 (1861): 80. 21 et seq. : 1 Chamb., Ev.. 27 et
Murray v. Lepper, supra ; Dimond v. Hender- seq.
son, 47 Wis 172, 2 X. W. 73 (1879): 2 81. Federal Lumber Co v Reece (Ky
Chamb. Ev. 1081, n. 1. and cases cited 1909). 116 S. W. 783: 2 Chamb.. Ev.. lOSla.
78. Brickor v Lightner. 40 Pa. 199 (1861). So where a party in whose possession a d--
79. The Sam Sloan. 65 Fed. 125 (1894) ciive map is to be found declines to produce
Alterations of Deeds. There is no pre- it, an inference arises that it supports the
.sumption that an alteration on a deed was contention of his adversary Isabella Gold
made after delivery but it must be made to Min Co. v Glenn. 37 Colo 165. 86 Pac. 349
appear that an alteration was made after (1906): Bryant v. Stillwell. 24 Pa. 314
delivery before any presumption of fraud can (1S55K
arise. Tharn v. Jamison. 154 Iowa 77. 134 82. The Luckenhach. 144 Fed 980 (1906 K
X W. 583. 39 L R A. (X. S.I 100 (1912). Tn like manner, where, in an action against a
Where a deed appears on its face to be railroad for injuries to a passenger in con-
443 PRESUMPTIONS; INFERENCES OF FACT. 292
*
building 83 or other piece of real or personal property, the act of one of the
parties in refusing to permit the other to examine the same under reasonable
conditions gives rise to an inference that such an inspection would disclose
facts detrimental to his cause.
Mutilation. In case of the mutilation of an important piece of real evi-
dence, a party is to be affected by a deliberative inference, if at all, only to
the extent that he appears to have been connected with it. S4
sequence of the breaking of a defective coup- road, but would liave injured it. Galveston,
ling, the company removed it and failed to etc., J!y l o. v. Young (Tex. Civ. App. 1007),
produce the same in court, though notified 100 S. \V. 00:).
so to do by plaintiff, failing to give any ex- 83. Byrant v. Stilhvell. supra.
planation for the non-production, a presump- 84. Bank of Irwin v. American Express Co.,
tion arose that the appearance of the broken 127 Iowa 1, 102 N. W. 107 (1905).
apparatus would not have benefited the rail-
CHAPTER XIV.
PRESUMPTION OF LAW.
Assumptions of procedure, 444.
Presumptions of law, 445.
presumption of legitimacy marriages, 446.
proof of access, 447.
Rebuttal of presumption, 448.
limitation upon scope of evidence, 449.
inferences of fact, 450.
esumption of death; continuance of life, 451.
an inference of varying probative force, 452.
adoption of rule in America, 453.
statutory modifications, 454.
proof of death by inferences of fact, 455.
failure to hear, 456.
subjective facts, 457.
unavailing search. 458.
computation of the seven year period, 459.
time of actual death : no presumption of life during seven years, 460.
'presumption rebuttable, 461.
criminal cases, 462.
capacity for crime, 463.
presumption of larceny from recent unexplained possession of stolen
floods, 464.
explanation, 465.
.place and cause of finding, 466.
proof of possession, 467.
presumption of malice in homicide, 468.
444. Assumptions of Procedure. 1 The presumption of law assumes the
prima facie truth of particular inferences of fact relating to the substantive
law, and maintains this assumption until the prima facie quality of the case
so established is met by evidence creating an equilibrium, if the case be a
civil one, or a reasonable doubt should it be criminal. This is the presump-
tion of law properly so-called. 2
1. 2 Chaniberlayne. Evidence. 10R2. pie v. Wong Sang Lung, 3 Cal. App. 221, 84
2. Other ilcfinitinns of presumption Cali- Pac. 843 (1906).
fornia. Cal. Code Civ. Proc , 1050; Peo-
293
445
PRESUMPTION OF LAW.
294
445. Presumptions of Law. 3 Somewhat to amplify the definition given
above, 4 it may be said that the presumption of law is a legal rule r> established
in that branch of the substantive law to which the presumption relates, and
provisionally assuming, until evidence has been introduced 011 the subject,
that a given inference of fact from certain circumstances, 7 previously shown
to exist has a prima facie value. As rule of law it is not within the option
or discretion of the trial judge to employ it or not, as would be the case were
the matter one involving a mere assumption of administration. 8 He cannot
refuse to rule as to its existence, for a party is as much entitled to the benefit
of a presumption of law as he would be to have any other appropriate legal
rule applied to the facts of his case. 9 " Presumptions serve a most useful
Colorado. Doane v. Glenn, 1 Colo. 495, 504
(1872).
Florida. Newton v. State, 21 Fla. 53, 98
(1884).
Georgia. Bryan v. Walton, 20 Ga. 480,
508 (1856).
Indiana. City of Indianapolis v. Keeley,
167 Ind. 516, 79 X. E. 499, rev'g (App. 1905)
76 X. E. 1117.
Louisiana. Cronan v. City of New Orleans,
16 La. Ann. 374 (1861) : Civ. Code La. 1900,
art. 2284.
Ma inc. State v. Tibhetts, 35 Me. 81
(1852).
Missouri. Lane v. Missouri Pac. Ry. Co.,.
132 Mo. 4, 21, 33 S. W 645-650 (1895).
A'eir Jersey. Bower v. Bower, 78 X. J. L.
387, 74 Atl. 522 (1909). rev'g. judg. (Ch.
1908) 69 Atl. 1077.
\ew York Jackson v. Warford (X. Y.
1831), 7 Wend. 62, 66.
\orth Carolina. Lee v. Pearce, 68 X. C.
76, 85 (1873).
Oklahoma. Johnson v. Territory, 5 Okl.
695, 50 Pac. 90 (1897).
I'ennsylranla. In re Brown's Estate, 8
Philadelphia 197 (1871).
Konlh Carolina. Pell v Ball's Ex'rs (S. C.
1S40), Cheves. Eq. 99. 123.
\Vent \'irffinia. State v. Heaton. 2.3 W Va
773, 782 (1883).
Wisconsin. Welch v Saekett. 12 Wis 243.
25 7 (I860)
rnited tHnfes U. S. v. Sykes. 58 Fed.
1000. 1004 (1893)
See also, other cases in different jurisdic-
tions cited in 2 Chamh . Ev.. n. 3: As to
the distinction between inference and pre-
sumption and colloquial uses of the term
presumption. Id.
V\ here the assumption is made under a rule
of law it may propeny be regarded as one of
procedure and is properly styled a " pre-
sumption of law." W'here, on the other hand,
there is no rule of law. procedural or sub-
stantive, in the matter, the assumption is
one of administration ( 372 et seq. ; 1
Chamb., Ev , 174 et seq.) or. at most, in
point of fixity, one of practice, i 71; 1
Chamb., Ev., 173.) See also, as to Pre-
sumptions of Law and Assumptions of Ad-
ministration and Logic v. Law, 2 Chamb.,
Ev., 1083, 1084, and notes.
3. 2 Chamberlayne, Evidence, 1083-1089.
4. 444; 2 Chamb., Ev., 1082.
5. "A presumption (of law) (unless de-
clared by law to be conclusive) may be con-
troverted by other evidence, direct or in-
direct, but unless so controverted, the jury
are bound to find according to the presump-
tion." In re Bauer's Estate, 79 Cal. 304.
307, 21 Pac. 759 (1889).
6. Or, as has been said, until it is disproved.
First Xat. Bank v Adams, 82 Xeb. 805, 118
i\. W. 1055 (1908).
7. People v. Wong Sang Lung, supra.
8. 4S6 ct seq.: 2 Chamb ? Ev.. 1184
et seq. The constituent facts grounding the
inference must themselves be proved to the
satisfaction of the jury, unless admitted.
Keclamation Dist. Xo. 70 v Sherman. 11 Cal.
App 399. 10.-) Pac. 277 (1909).
9. " Presumptions, or. as they are some-
times called. ' intendments of the law.' are
inferences or positions established for the
most part by the common and occasionally
by the statute law. and are obligatory alike
on judges and jury '' Doane v Glenn. 1
Colo. 495. 504 (1872) For example, from
a lawfnl marriage and the birth of offspring
295
LEGITIMACY.
446
and indispensible part in the correct decision of many questions, but they are
out of place, when the facts are known, or are admitted." 10
A Limited Number. Unlike inferences of fact, }1 or administrative as-
sumptions of procedure, 12 presumptions of substantive law are limited in num-
ber, and are properly considered in connection with the several branches of
law to which they relate and will not, therefore, beyond a reasonable number
of illustrative instances, be deemed to fall within the scope of the present
treatise. The creation of future presumptions of law lies mainly with the
legislature. The work of the courts, in this respect, will more properly deal
with the announcement of assumptions of administration, which do not deal
with specific branches of the substantive law. 13
Civil Cases. Very many of the civil branches of substantive law have rules
of presumption announcing that a prima facie probative force will, until evi-
dence to the contrary is introduced, be provisionally attached to a given state
of facts. 14 That is, a certain inference will be drawn from it, unless and un-
til countervailing evidence is introduced.
446. [Presumptions of Law]; Presumption of Legitimacy Marriage. 15
The presumption of legitimacy, under which a child born during the cohabita-
tion of a married couple will be taken, prima fa^ie, to be legitimate, provided
the husband could have had access, is properly spoken of as a presumption of
during cohabitation the presumption of law
is that the children are legitimate. When
conflicting evidence is introduced upon the
point covered by the presumption of law, the
presumption itself, the rule of law, is functus
ofticio. It has done its work. People v.
Wong Hang Lung, supra; Schaub v. Kansas
City Southern Ry. Co., 133 Mo. App. 444, 113
S. W. 1163 (1908). The entire inquiry is
now one of logic, as to inferences of fact.
Turner v. Williams, 202 Mass. 500, 89 N. E.
110 (1909); Lynch v. Metropolitan St. Ry.
Co., 112 Mo. 420, 433, 20 S. W. 642 (1892).
Burden of Proof and Burden of Evidence.
The effect of the establishment by a party,
in his own favor, of a presumption of law, or,
more properly of the facts regarding one. is
not to shift the burden of proof. Citizens'
ins. Co. v. Helbig, 138 111. App. 115 (1907),
judg. aff'd Helbig v. Citizens' Ins. Co., 234
111. 251, 84 X. E. 897 (1908). The burden
of evidence, however, being discharged by
the person so establishing a presumption of
law may properly be said to have shifted.
Id.
10. Erhart v. Dietrich, 118 Mo. 41 . 427,
24 S. W. 188 (1893). "The office of pre-
sumptions is not to overthrow admitted facts
but rather to supply the absence of facts;
there can be no presumption against ascer-
tained and established facts." Con way v.
Supreme Council Catholic Knights of Amer-
ica, 137 Cal. 384, 389, 70' Pac. 223 (1902).
Any inference of fact previously assumed as
prima facie correct by the presumption of law
continues to exert its full logical effect. As
to the Evolution of Substantive Law: Rulings
as to Prima Facie Case, see 2 Chamb., Ev.,
1086, 1087.
11. 414 et seq.; 2 Chamb., Ev., 1026 et
seq.
12. 486 et seq.; 2 Chamb., Ev., 1184
et seq.
13. Presumptions of law are usually
grounded upon public policy, social conven-
ience, or safety, and are either such as the
statutes expressly declare, or such inferences
as the courts generally in their legal ex-
perience have recognized and sanctioned in the
administration of justice. Modern Woodmen
of America v. Craiger. 17-"> Ind. 30. 02 X. E.
113. rev'i iudg. (App. 1909) 90 X E. 84. See
also, 2 Oimb., Fv.. 1088.
14. Sheldon v. Wrisrht. SO Vt. 29S. 67 Atl.
807 M907): 2 Chamb.. Ev.. 1089.
15. 2 Chamberlayne, Evidence, 1089a.
446 PRESUMPTIOK OF LAW. 296
law. It is a recognized part of the substantive law of the family that a child
born during the coverture of a married couple " within the espousals," as the
early phrase went, " deinz les espousailts," will- be presumed to be the legitimate
child of persons so cohabiting. 10
"Inter quatuor maria." If the husband, pater quern ituptiae dvmonstrant,
was within the four seas, inter quatuor maria, of England during the time
when the child might have been begotten, the latter was legitimate. 17 This
continued to be the rule as announced by the common law, which in this par-
ticular, was in sharp contrast with that of Holy Church, 18 from the time of
Bracton through the seventeenth century. Even the clearest proof of the
wife's adultery did not suffice to bastardize the spurious offspring. If he were
not impotent, or under a decree of divorce from his wife. 19 the husband, if
within the four seas of England, was conclusively presumed 2 " (the expression
may be noted) to be the father of his wife's children. After the seventeenth
century, the rule of the inter quatuor maria may be regarded as abandoned. 21
Proof under the Modern Use of Reason. Modern methods, those of reason,
venture boldly to enter upon the inquiry as to whether the husband was
under the circumstances disclosed in the evidence, actually the father of a
child begotten in coverture. In attempting this task, the law avails itself
of nil probative facts with a single exception, a reservation of doubtful ex-
pediency, to be mentioned hereafter. 22 If it may be reasonably found by
the tribunal of fact that the husband could, in the nature of things, have been
the father of the child, the presumption of substantive law assuming legitimacy
will be allowed to stand. 2:! In few connections, is the intimate relation between
the substantive law and the so-called presumption of law more clearly shown
than in the present. 24
16. 2 Chamb., Ev., 1089a. 424, 61 X. E. 631 (1901) : Bowman v. Little,
17. 36 Hen. VI, pi. 14, p. 22 (1457). 101 Md. 273, 61 Atl. 1084 (1905); Rabeke
18. The Canon or Ecclesiastical Law, which v. Baer, 115 Mich. 328, 73 X. W. -242 (1897) .
was usually called by early English lawyers Matthews' Estate, 153 X'. Y. 443, 47 X*. E.
' the law of the Holy Church,' thouh founded 901 ( 1897) ; Locust v. Caruthers. 23 Okl. 373.
upon the Civil Law, was at variance both 100 Pac. 520 (1899): Bunel v. O'Day. 125
with the Civil and Common Law with re- Fed. 303 (1903): 2 Chamb.. Ev., 1089b, n.
spect to Adulterine Bastardy, for it looked 3, and cases cited.
only to the actual paternity. Xicolas on 24. Birth of issue shortly after marriage
Adulterine Bastardy, p. 2: Bracton, Lib. 1, is an exception to the rule and stands upon
c. 9, f. fib: Lit. II c. 29. pp. 63. 70. its own facts. R. v. Luffe. 8 East. 193
19. 18 Hen. VI, Hil. T. pi. 3, pp. 32. 34 (1807 K This law seems well settled. Grant
(1440): "Rolle's Abr. 358, Tit. Bastards, let- v. Stimnson. 79 Conn. 617. 6(1 Atl. 166
ter B. (1907): Dennison v. Pa<re. 29 Pa. 420, 72
20. 470 et seq.: 2 Chamb., Ev., 1160 Am. Dec. 6-14 (1857): Wallace v. Wallace,
et'seq. 137 Iowa 37. 114 X*. W. 527. The courts
21. 2 Chamb., Ev.. 1089a, n. 8. and cases will not indulge the presumption that a mar-
cited, rin^e was entered into merely to avoid the
22. 449; 2 Chamb.. Ev.. 1089e. possible consequence* of a pending bastardy
23. Mills' Estate, 137 Cal. 298. 70 Pac. proceeding, but will assume that, had the
91 (1902); Robinson v. Ruprecht, 101 111. alleged father doubted his paternity, he would
297
LEGITIMACY.
i
Marriage 1 . There is also a presumption of a legal marriage from proof
of a marriage ceremony in due form 25 or even from cohabitation as man
and wife. 1 '"
i 447. [Presumptions of Legitimacy] ; Proof of Access. If personal access on
the part of the husband is shown at a time when the child might have been
begotten, it will be assumed that sexual intercourse took place, unless such an
occurrence is clearly negatived by the attendant circumstances. 27 " Access like
any other important fact, must be satisfactorily established, but access is not
to be presumed because the parties were within such distance that access was
possible." 2 -
448. [Presumption of Legitimacy] ; Rebuttal of Presumption. 29 That the
oiid marriage is legal as the presumption
of the continuance of the first marriage is
outweighed by the presumption of innocence
as the second marriage was entered into in
good faith and all parties have acted upon
an assumption of its validity. Shepard v.
Carter,. 86 Kan. 125, 119 Pac. 533, 38 L. R.
A. (X. S.) 568 (1911). "o show that a
second marriage is bigamous the burden is
upon the state to show that the first wife is
still alive and this burden is not met by
evidence that the first wife was alive four
and a half years before. The presumption
of continuance of life must give way to that
of innocence. Dunlap v. State, 126 Tenn. 415,
1-50 S. W. 86, 41 L. R. A. (X. S. I 1061
(1912). The mere fact that a man having
a living wife in Tennessee had married an-
other woman in Alabama does not raise an
absolute presumption that he had obtained in
Alabama, or at some place other than Ten-
nessee, a divorce on some" ground recogni/ed
in the forum. Xeely v. Tennessee, etc., R.
Co., 145 Ga. 363, 89 S. E. 325. L. R. A. 1916
F 819 H916).
26. The presumption of marriage from co-
habitation and reputation is rebutted by evi-
dence that the man married another woman
without protest from the reputed wife and
where there is an absence of other evidence
of marriage which could easily have been pro-
duced if in existence. Farley v. Frost-John-
son Lumber Co.. 133 La. 497, 63 So. 122,
L. R A. 191.i A 200 M913K
27. 2 Chambprlayne. Evidence. 1089c. n.
1. and cases oitod.
28. 2 Chamberlayne, Evidence, 1089c, n.
2. and cases cited.
29. 2 Chamberlayne, Evidence, 1089d.
have resisted the prosecution and refused to
marry. Hall v. Gabbert, 213 111. 208, 72
X. E. 806 (1904).
25. Evidence of a marriage ceremony in
due form puts on the other side the burden
of proving that the marriage was illegal.
Goset v. Goset, 112 Ark. 47. 164 S. W. 759,
L. R. A. 1916 C 707 (1914).
Effect of Second Marriage. The burden
is on one who seeks to show the illegality of
a marriage to prove such illegality which
presumption is not overcome by mere proof
of a second marriage and the parties attack-
ing such second marriage have the burden
of proof to show that neither party to the
first marriage had obtained a divorce. Jones
v. Jones. Okla (1917). 164 Pac 463, L.
R. A. 1917 E 921. The tendency of the
courts is to hold a second marriage valid,
and if it has not been questioned for many
years its validity will not be overcome by
mere proof of a prior marriage. Tn such
case the presumption in favor of innocence
and morality will prevail over the presump-
tion of the continuance of the former mar-
riage and it will be presumed that the first
marriage was not binding at the time of the
second. Proof of subsequent marriage alone
makes out a prima facie case of its validity.
To overcome this prima facie case, proof of
a former marriage is required and also evi-
dence from which it may be concluded that
it has not been dissolved by death or divorce.
ShaetTer v. Richardson. 125 Md. 88. 93 All.
391. L. R. A. 1015 E 186 (1915). Where
a man leaves the state saying that he will
get a divorce and returns after two years
-avinsr that he has one and later marries
niain and lives with the second wife four-
teen years the presumption is that the sec-
449
PBESUMPTIOX OF LAW,
inference of fact that children born during the coverture of a married woman
were begotten by her husband may be rebutted is unquestionable/" 1 Among
facts showing that children born during coverture could not have been the
children of the husband are a second marriage by the mother supposing a
former husband to be dead/' 1 or a continuous absence by the husband," 2 espe-
cially at sea or in foreign parts, during the period when he might, in course
of nature, have been the father of the child. A difference in race between the
parents and the child as where the married pair are white and the child is a
mulatto ::;! has been held to rebut the presumption of legitimacy. The question
in each case is, of course, as to actual access on the part of the husband. That
fact, being proved, or disproved, 84 the judicial inquiry, as a rule, ceases/'' 5
449. [Presumption of Legitimacy] ; Limitation upon Scope of Evidence. 30
.X either of the married couple is permitted to testify to the fact of actual
non-access ,to the wife on the part of her husband. The modern rule dates
from the time of Lord ALanstield who announced, in 1777 : 37 " It is a rule
founded in decency, morality, and policy, that they (husband and wife) shall
not be permitted to say after marriage that they have had no connection, and
therefore that the offspring is spurious/' This rule was later adopted in
affiliation proceedings :!s and obtained much vogue and popularity/ Indeed,
it may be regarded as settled law. 4 " As to the fact of non-access alone, hovv-
30. Bunel v. O'Day, 125 Fed. 303 (1903);
McXeely v. McXeely, 47 La. Ann. 1321, 17
So. 928 (189.1), in Louisiana after an in-
terval of 300 days after separation of the
married couple the presumption of legitimacy
becomes rebuttable for after-born children
of the wife.
31. St. Andrews v. St. Brides, 1 Stra. 51
(1760).
32. Mebane v. Capehart, 127 X. C. 44, 37
S. E. 84 (1900); In re Divver's Estate, 22
Pa. Super. Ct. 436 (1903).
Where the husband and wife are living
apart there is no presumption of law that
any child born to the wife is legitimate as
was formerly the rule. Probable evidence
that the husband had no chance of access
to the wife is now admissible, following the
English rule in the English House of Lords
in Morris v. Davies, 5 Clark & F. 163. State
v Shaw, 89 Vt. 121, 94 Atl. 434. L. E. A.
1915 F 1087 (1915)
. Impotency. moreover, on the part of the
husband still rebuts the presumption of legiti-
macy. Impossibility of procreation must,
however, be established, in order to justify
the affirmative action of the court. Even a
high degree of improbability is not sufficient
for the purpose of bastardizing the offspring.
2 Chamb, Ev., 1089d.
33. Bullock v. Knox, 96 Ala. 195, 11 So.
339 (1892).
34. Wallace v. Wallace, 73 X. J. Eq. 403,
67 Atl. 612 (1907).
35. The presumption of legitimacy cannot
be rebutted by showing that the wife was
guilty of adultery during the period of gesta
tion. Town of Canaan v. Avery, 72 X. H.
591, 59 Atl. 509 (1904).
36. 2 Chamberlayne, Evidence. 1089e.
37. Goodright v. Moss, Cowp. 591 (1777).
38. R. V. Kea. 11 East 132 (1809).
39. Legge v. Edmonds, 25 L. J. Ch. 125, 135 '
(18561 ; R. v. Sourton, 5 A. & E. 180, K. B.
(1836).
40. Mills' Estate, supra; Abington v. Dux-
bury, 105 Mass. 287 (1870) : Raheke v. Baer,
supra; Chamberlain v. People, 23 X. Y. 85, 88
(1861); Boykin v. Boykin, 70 X. C. 262
(1874) ; Bell v. Terr., 8 Okl. 75, 56 Pac. 853
(1899); Tioga v. South Creek, 75 Pa. 433
(1874): Shuman v. Shuman, 83 Wis. 250.
53 X. W. 455 (1892) : Mulligan v. Thompson.
23 Ont. (Can.) 54 (1892): 2 Chamb., Ev..
1089e. n. 5, and cases cited.
LEGITIMACY. 450,451
ever, is silence imposed by tlie law upon the married pair. 4 Thus an illegal
marriage ceremony 42 or the non-existence of any marriage ceremony what-
ever, 4 -' 5 may be stated by either one of the married couple although the neces-
sary effect of the testimony, if believed, would be to bastardize the offspring.
Either parent is quite as competent to testify that a particular child born
during the coverture is, in fact, illegitimate 44 as to testify that he or she is
legitimate. 45
450. [Presumption of Legitimacy] ; Inferences of Fact. 46 Inferences of fact
are to be distinguished from this presumption of law. As an inference of
fact, for example, legitimacy may be presumed from recognition of the child
by its supposed parents. 47 Husband or wife, may, as witnesses, depose to
the existence of facts from which the inference of illegitimacy may properly
be drawn, or which tend to exclude the conclusion that the child is legitimate. 48
With this, however, the presumption of law is not concerned. So also, there
is said to be no presumption that certain alleged heirs are the legitimate
descendants of the ancestor. 49
451. Presumptions of Law; Presumption of Death; Continuance of Life. 50
Prominent among presumptions of law, properly so-called, under the rules
regulating the rights of persons, is the so-called presumption of death from
seven years absence from home with no tidings received by those who naturally
would have heard had the person in question been alive. It is not disputed that
it is a fair inference of fact, i.e., a presumption of fact, 51 that a person mav,
with greater or less probative force according to varying circumstances, be
taken as being alive shortly after he is proved to have been so. Xor would
it be doubted that with the same variations, the inference of fact though with
constantly diminishing force, would operate in favor of life for a considerable
time/' 2 The presumption of the inference of life applies equally to the young; 53
41. Chatham v. Mills, 137 Cal. 298 (1902) ; v. Caruthers, supra; 2 Chamh., Ev., 1089f.
1 bort v. Greenwalt. 44 Mich. 245. 6 X. W. n. 1, and cases cited.
u.">4 (1880); Chamberlain v People, supra; 48. Poulett Peerage, L. R. (1903) App. Cas.
I iora v. South Creek, supra. 395 (abandonment of wife upon her confes-
42. Darcy's Infants, 1 1 Ir. C. L. R. 298 sion of pregnancy by another )
(I860). 49. Osborne v. McDonald. 159 Fed. 791
43. Xiles v. Sprapnie, 13 Iowa 198, 207 (1908).
( 1862) ; Allen v. Hall, 2 Xott & McC. (S. C.) 50. 2 Chamberlayne Evidence, 1090,
114 (1819). 1091.
44. Murray v Milner, L. R. 12 Ch D. 845 51. 415: 2 Chamh . Ev . 1027.
MS79). See, however. In re Mills' Estate, 52. 417. 420: 2 Chamb.. Ev . 1034,
137 Cal. 298 1042: Hartley v. Boston & X. St. Ry. Co.. 198
45. Cooley v. Cooley. 58 S. C. 168, 36 S. E. Mass. 163. 83 X". E. 1093 (1908) : Hall v
563 (1900), rehearing denied. 58 S C. 582, Hall. 122 X. Y. Supp. 401 (19'n) : 2 Chamb,
37 S E. 226. Ev.. 1090. n. 4. and cases cited.
46. 2 Chamberlayne. Evidence. 1089f. 53. Lewis v. People. 87 111. App. 588
47. Zachmann v. Zachmann. 201 Til. 388, (1899); Mauley v. Pattison. 73 Miss. 417,
66 X. E. 256 (1903): Dennison v. Page. 29 19 So. 236, 55 Am. St. Rep. 481 (1895).
Pa. 420, 72 Am Dec 644 (1857); Locust
452,453 PRESUMPTION OF LAW. 300
and the old, 54 the sick 55 and the well, the absent and those near at hand.
Inference of Continuance of Life Rebutiable. So far as it is an inference
of fact, the presumption of the continuance of life is controlled, modified or
overbalanced by facts from which a contrary inference may logically arise. 50
The probative force of the presumption of eontininnce of life is, therefore, in
a state of constant change.'"' 7
452. [Presumption of Death] ; An Inference of Varying Probative Force. 58
Every loss in probative force of the presumption or inference of continuance
adds to that of the inference of death and vice versa. It necessarily follows
that a point of time is certain to arrive at which the evidentiary power of the
presumption of death will overcome that of the continuance of life. 59 Later
on, a second point of time is, as a matter of logic, certain to be reached at
which the presumption or inference of death has become prima facie valid. As
a matter of experience alone, however, no precise point of time could well be
agreed upon by the courts as that at which a presumption of law should begin
to operate.' 10 The prima facie point in the proof might well arise in different
cases, at very divergent points of time. 01 The courts, therefore, instead of
announcing a rule of presumption, i.e., a presumption of law, adopted the
time limit, seven years,*' 2 of a statute passed for another purpose 6:$ and ap-
plied it, generally, to all cases of unexplained absence, where one is presumed
to be dead.
453. [Presumption of Death] ; Adoption of Rule in America.' 14 The pre-
sumption of law that one absent for seven years without tidings by his family
and friends will be assumed to be dead is universally adopted in the L'nited
States,' 15 and Canada/ 16 Even where the legislature has not intervened a
54. \Vatson v. Tindal, 24 Ga. 404, 71 Am 63. This was done by the English court>
Dec. 742 (1858). (in re Benjamin, 1 Ch. 723. 71 L. J. Ch. 319,
55. Hall's Deposition, 11 Fed. Cas. No. 80 L. T. Hep (N. S.) 387 (1902); Wilson
5,924, 1 Wall. Jr. (U S) 85 (1S43). v. Hodges, 2 East 312, G Rev. Rep. 427
56. Hyde Park v. Canton. 130 Mass. 505 (1802)) taking as a basis the Statute of 1
(1881) ; Davie v. Briggs. 07 U. S. 028, 24 James 1, c XI, relating to prosecutions for
L. ed 1086 (1878) : 2 Chamb., Ev.. 1001, adultery and practically extended by 19 Car.
n. 1. and cases cited. 2, c. 6 to cases of absent life tenants. Doe
57. Hyde Park v Canton, supra; 2 Chamb.. d. Banning v. Griffin, 15 East 203 (1812K
Ev., 1091, n. 2, and cases cited. See an interesting statement of the Origin
58. 2 Chamberlayne Evidence, 1002. of the Rule as to Seven Years' Absence, 2
1003. Chamb., Ev., 100.3 and notes.
59. Smith v. Knowlton, 11 X. H. 191 64. 2 Chamberlayne. Evidence. 1094-
(1840) 1096.
60. Cxech v. Bean. 72 N Y. Supp. 402, 35 65. Hansen v Owens. 132 C,a. 648. 64 S. E.
Misc. 729 (1901) 800 (1009); I?eedy v. Milli/en, 155 111. 636,
61. Merritt v. Thompson. 1 Hilt. (N. Y.) 40 X E. 1028 (1895); "Ryan v. Tudor. 31
550 (1858) : 2 Chamh . Ev . 1002. n. 3. and Kan 366. 2 Pac. 797 (1884): Stock-bridge,
cases cited. Petitioner, 145 Mass. 517. 14 X E. 928
62. Doe d. Lloyd v. Deakin. 4 B. & A. 433 ('lSS7) : Gilroy v. Brady, 105 Mo. 20.",, 03
(1821): Doe d George v. Jesson, 6 East 84 S W 270 '1006): Barson v. Mulligan, 101
(1905), per Ld. Ellenborough. C. J. N. Y. 306, 84 N. E. 75 (1908). revg. 105
301
DEATH.
454
ruling by the judge to this effect seems a reasonable exercise of judicial ad-
ministration in giving certainty to substantive law.' 57 In any case, tlu\ burden
of evidence to show absence and other facts grounding the presumption of
death rots upon him who alleges it.' ;s
454. [Presumption of Death] ; Statutory Modifications.' 1 '' The legislature
has introduced certain variations upon this general rule of presumption. 7 "
Occasionally a less time than seven years is declared to be sufficient to ground
the presumption of law.' 1 Other statutes have been limited in operation to
residents of the forum. In this case, application to other persons is excluded. 72
Absence from Jurisdiction. It has been frequently required, in certain
statutes, .that the absence of the person in question must be shown to have
been in another state or country. 73 But to require affirmative proof that the
person in question is beyond the sea, or out of the state or hiding in it,
is to demand the impossible. Evidence showing that the person is doiny
anything establishes that he is alive, and it is precisely this fact which the
absence of all tidings tends to negative. 74 Proof of other facts grounding an
N. V Supp 1106. 120 App. Div. 879 (1007):
/ re freeman's Estate, 227 Pa. 154, 75
All. 10i3 (I'.UOl: Davie v. briggs, supra;
2 Chamb., Kv . 1094, n. 1, and cases cited in
24 other states
66. C.iles v. Morrow, 1 Out. Rep. 527
(1882i.
67. ^ 305 ct seq ; 1 Chamb , Ev , 556
et serf.
68. Smith v Combs, 49 N. .1 Eq. 420, 24
All. 9 (1S92). That there is no probative
force in the presumption itself, see 2 C.'hamb.,
Ev., 1095 : State v. Henke. 58 Iowa 457
(1882). \o Jterrrne Presumption The ex-
piration of seven years without tidings gives
rise to no presumption of law that the
person at home is dead. " If a man leaves
his home and oes into parts unknown, and
remains unheard from for the space ot seven
years, the law authori/es. to those that re-
main, the presumption of fact that he is dead :
but it does not authori/e him to presume
therefore that any one of those remaining in
the place which he left has died. Hyde Park
v. Canton, supra ; 2 Chamb . Fv.. lOflfi The
same rule applies in case of absence longer
ilian seven years. Garwood v. Hastings. 38
( al. 216 (1899 (17 years)
69. 2 Chamberlayne, Evidence. 1097,
1098:
70. Matter of Board of Education. 173 X
Y 321, 66 X. E. 11 ( 1903), dismissing appeal
77 X. Y. Supp. 1121 (1902)
71. Mo. Rev. St., 1899, 3144: Winter v.
Supreme Lodge K. of P., 96 Mo. App. 1, 69
S W. 662 ( 1902 i .
72. Irontou Fire Brick Co v. Tucker, 26
Ky L. Rep 532, 82 S. W. 241 (1904*. Even
where the statutory provision is broad
enough to cover a voluntary and open change
of domicile and residence outside of the state,
the intent of the legislature may \>e so far
followed as to limit the application of the
presumption to cases where the absentee has
abandoned his home which still remains in
the jurisdiction of the forum. Latham v
Tombs (Tex. Civ. App 1903). 73 S. \V. 1060.
In such a case it is necessary to establish
conclusively that the decadent left the state.
Bradley v. Modern \\oodmen of America, 146
Mo. App. 428. 124 S. \V. 69 ( 1910) : 2 Chamb.,
Ev., 1097. n. 5, and cases cited.
73. Louisville Bank v. Public School Trus-
tees. 83 Ky. 219 (1885); Winter v. Sup.
Lodge K of P.. 96 Mo. App 1, 69 S. W. 6fi2
(1902) : Mo. Rev. St. (1899) 3144: Turner
v Sea lock. 21 Tex. Civ App 594. 54 S W.
358 (1890). Tex Rev. St. art 3372 (1841):
i Chamh.. Ev , ij 1098. n 1. and cases cited
74. " All the proof that can be required or
expected is. that the party has been absent
from the state, or from his familv or home,
and has not been heard frnm within the pe-
riod prescribed by the statute The effect of
the statute was simply to define the limits
and direct the application of an ancient rule
of the common law. which had been adopted
and applied by existing English statutes
455 PRESUMPTION OF LAW. 302
inference of death is not excluded by the existence of such statutes, 75 unless
there be affirmative proof that the person has left the state or country.
455. [Presumption of Death] ; Proof of Death by Inferences of Fact.
While mere length of time during which the presumption of continuance of
life is required to operate, gradually deprives it of probative weight, mere
lapse of time, within the limits of possible longevity, will not establish a prima
facie case in favor of death. 77 The inertia of the court will not be overcome,
except by facts from which an inference of death may logically be drawn. 78
Occurrence of shipwrecks, 79 the outbreak of serious epidemics 80 and the like sl
may so reinforce the inference arising from lapse of time as with it, to con-
stitute a case in favor of death upon which a jury might reasonably act.
The force of all such inferences is greatly enhanced where unavailing efforts
to acquire knowledge as to the whereabouts or existence of the party have
been made.* 52 The truth, however, of this proposition is not affected by the
circumstance that in connection with other facts, length of unexplained ab-
sence, unheard from, will lead to an inference of death even before the expira-
tion of seven years. 83
Proof Must Be Competent. Any fact upon which an inference of death is
to be based must be proved, as a matter of course, by legal testimony. For
example, hearsay will not be received. Death cannot be proved by showing
that a witness has " heard " that the person in question was drowned. 84 That
to certain specified cases. [Thome v. Rolff, 1 191 (1840): Davie v. Briggs, 97 U. S. 628
Dyer 185a; S. C. Bendloe 8G (1894)]. The (1878).
statute may, perhaps, have been further de- Sickness, Bad Bodily Condition, etc.
signed to convert a mere presumption of fact Leach v. Hall, 95 Iowa 611, 64 X. W. 790
into a presumption of law; for it seems to (1885): Chapman v Kimball, 83 Me. 38!),
have been doubted whether at common law the 22 Atl 254 ( 1891 ) : Cambreleng v. Purton. 12
presumption of death arising from seven X. Y Supp 741 (1890): aff'd 125 X. Y. 610,
years' absence was obligatory on juries. But 26 N. E. 907 (1891) ; 2 Chamb., Ev., 109!),
in this respect, the rule at common law is n. 5, and cases cited.
now held to be obligatory." Osborn v. 82. Modern Woodmen of America v Graber,
Allen, 26 N. ,T. L. 388 (1857). 128 111. App 585 (1906); Renard v Bennett,
75. Louisville Bank v. Public School Trus- 76 Kan. 848, 93 Pac 261 (1!)()8) : Bailey v.
tees, supra. Bailey, 36 Mich 181 (1877) : Dunn v. Travis,
76. 2 Chamberlayne, Evidence, 1099. 67 X. Y. Supp. 743. 56 App. Div. 317 (1900) :
77. 420; 2 Chamb, Ev., 1042, n. 9. 2 Chamb, Ev , 1099, n 6 and cases cited.
78. Magness v. Modern Woodmen of Amer- 83. Johnston v. Garvey, 124 X. Y. Supp.
ica. 146 Iowa 1, 123 X. W. 169 (1909): 278 (1910): Puckett v. State, 1 Sneed
Jacobs v. Fowler, 119 X. Y. Supp. 647 (1909). (Tenn ) 355 (1853): Washington Safe, etc.,
79. Merritt v. Thompson, 1 Hilt. (X. Y.) Co v Lietzow, 59 Wash. 281, 109 Pac. 1021
550 (1858) ; Holmes v. Johnson, 42 Pa. 159 (1910) : 2 Chamb, Ev., 1099, n 6, and cases
(1862); Gibbes v. Vincent, 11 Rich. (S. C.) cited.
323 (1858); 2 Chamb., Ev., 1099, n. 3, and 84. Iberia Cypress Co. v. Thorgeson, 116
cases cited. La 218, 40 So. 682 (1906): Harris v. State
80. Chapman v. Kullman, 191 Mo. 237, 89 Bank, 97 X. Y. Supp 1044. 49 Misc. 458
S. W. 924 (1905) (1906). So also, acts of conduct by persons
81. Eagle v. Emmet, 4 Bradf. Sur. (X. Y.) within or without the family of which the
117 (1856); Smith v. Knowlton, 11 N. H. person whose death is in question was a mem-
303 DEATH.
the absentee was treated in legal proceedings as a nonresident 85 is inadmissible.
That the testator on whose disposition of property the inquiry arises apparently
supposed that the alleged deceased person was living within seven years, is
for like reasons, in itself, a matter of no consequence. 86
Admissions. The law of admissions may operate to estop a party from
claiming that a given person is dead. 87
Documents. The same rule applies to documents. A certificate of death,
to be valid, must be properly authenticated. 88
Relevancy. It is essential to admissibility, also, that the fact offered in
evidence should be relevant. 89
^ 456. [Presumption of Death] ; Failure to Hear. 90 So instinctive and cus-
tomary is it- that one away from home, even if he have acquired a new domicile
elsewhere, should desire to communicate with family and friends, that when
it is made to appear in evidence that such persons have, without assignable
cause, failed to hear from or of an absent member of the family for a con-
siderable time 91 an inference of fact arises that he is dead. The bare fact
of absence for seven years 92 is not, as has been seen, 93 sufficient, as an in-
ference of fact, standing alone, to make a prim a facie case overcoming the as-
sumption or presumption of the continuance of life.
Absence of Tidings is Important Only When it Exists at Absentee's Home.
The presumption of law that a person not heard from for seven years is dead,
arises only when the absence of the person in question is from his home. 94
N\) similar inference* of fact arises where the person has changed his domicile,
or otherwise transferred home ties 95 or where he has removed to a different
state or to a foreign country." Only ignorance by the home relatives is sig-
ber, concerning his absence which amount to (1869) : Batigh v. Boles, 66 Tnd. 376 (1879) ;
the statement of an inference or conclusion Bowditch v. Jordan, 131 Mass. 321 (1881);
on their part that he is or is not dead, are Sheldon v. Ferris, 45 Harb. (X. Y.) 124
to be rejected as, in effect, hearsay. 857, (1865); Holmes v. Johnson. 42 Pa. 159
et seq.; 4 Chamb., Ev., 2698 et seq. Ru- (1862): 2 Chamb., Ev.. 1100, n. 1, and
mor will not be received. Kennedy v. Mod- cases cited.
ern Woodmen of America, 243 111. 560, 90 92. Brown v. Jewett, 18 N. H. 230 (1846).
N. E. 1084 (1910); 2 Chamb., Ev., 1099a. 93. 452: 2 Chamb.. Ev., 1092.
85. Ferrell v. Grigsby (Tenn. Ch. App. 94. Stinchfield v. Emerson, 52 Me. 465,
1899). 51 S. W. 114. 83 Am. Dec. 524 (1864).
86. Whiteside's Appeal, 23 Pa. 114 (1854). 95. Hansen v. Owens, 132 Ga. 648, 64 S. E.
87. A party who admits that a person is 800 (1909) : Wentworth v. Wentworth, 71 Me.
alive by a judicial admission will not be 72 (1880)
permitted to deny that fact however strong 96. McCartee v. Camel. 1 Barb. Ch. (X. Y.J
the inference of death. Doane v. McKenny. 2 455 (1846) ; Francis v. Francis, 180 Pa. 644,
Xova Scotia 328 (1854). 37 Atl 120. 57 Am. St. Rep. 66S (1897); 2
88. Lucas v. Current Eiver Land & Cattle Chamb.. Ev., 1101. n. 3. and cases cited.
Co., 186 Mo 448, 85 S. W. 359 ( 1905 ) . Presumption alone. To raise the presump-
89. 2 Chamb.. Ev., 1099a. tion of death from seven years' absence the in-
90. 2 Chamberlayne, Evidence, 1100- quiry made must be at the last known resi-
1105. dence of the party am] where one becomes
91. Garwood v. Hastings. 38 Cal. 216 estranged from his family and goes to another
450
PKESUMPTION OF LAW.
304
nificant in this connection. 07 .4. fortiori where an entire family remove from
the old home the .failure of the relatives remaining there even after a long-
time !)S to hear from the head of the family does not raise a presumption tkat
they are all dead. Intimate friends may properly, however, constitute a class
whose failure to hear from or about an absentee may be highly significant/' 9
Actual Receipt of Tidings. The fact of tidings of an absentee or other
evidence that he is still alive at a certain time, may be proved by any oiie. 1
Such knowledge destroys the inference of death regardless of the relation to
the home of the persons possessed of it. 2
Informative Considerations. Alany considerations, both objective and sub-
jective, tend to impair the probative force of the inference of fact that a per-
son is dead because he has not been heard from by his family and friends at
the place of his former residence for an extended time. u Considering the
great length and breadth of this country, and the migratory character of the
people, the presumption has less force here than in the country where the
law on this subject originated." 3
Probability of Information. The inference that a party is dead because
he has not been heard from naturally gains in probative force in proportion to
the probability that if he had been alive he would himself have communicated
with his friends or been mentioned in some message by others. 4
state inquiry at the residence of his family-
is insufficient. Marquet v. Aetna Life Ins.
Co., 128 Tenn. 213, 159 S. W. 733, L. R. A.
1915 B 749 (19131.
97. Wentworth v. Wentworth, supra: Man-
ley v. Pattison, 73 Miss. 417, 19 So. 236. 55
Am. St. Rep 543 (1895) ; Thomas v. Thomas.
1C Neb. 553, 20 X W. 846 (1884): In re
Miller, 9 N. Y. Supp. G39 (1888) -. 2 Chamb.,
Ev., 1101, n. 4 and cases cited. In the same
way where relatives living elsewhere than at
home fail to hear from the person in ques-
tion [Hit/ v. Algreen. 170 111. 00. 48 N. E.
10(58 (1897)]. the circumstance is not re-
garded as significant. Even where a husband
or wife move away from the former home of
the absentee, their failure to hear from him
is not necessarily probative. Thomas v.
Thomas, supra; Gorham v. Settegast (Tex.
Civ, App. 1906), 98 S. W. 665.
98. Campbell v. Reed, 24 Pa. 498 (1855)
(30 years) ; Manley v. Pattison, supra. The
failure of strangers, whether at or near the
home or not, is devoid of probative effect.
State v. Teulon, 41 Tex. 249 (1874).
99. Wentworth v. Wentworth. supra.
Should it happen that the absentee leaves no
family with whom he is on friendly terms,
and no intimate associates with whom he has
been in the habit of corresponding, silence
as to news from him at his former home can
scarcely be regarded as of probative impor-
tance. In re Bd. of Education, 173 N. Y. 321,
66 V E. 11 (1903): Renard v. Bennett, 70
Kan. 848, 93 Pac. 261 (1908). The fact that
e postal authorities or the makers of direc-
tories at the place of an absentee's former
residence do not know him is but slight evi-
dence that he is dead. Hall's Deposition, 1
Wall. Jr. .'I*. S.) 85, 104 (1843).
1. Matthews \. Simmons, 49 Ark. 468, 5
S. W. 797 (1886).
2. " There is no rule of law which confines
such intelligence to any particular class of
persons. It is not a question of pedigree."
Flynn v. Coffee, 12 Allen (Mass.) 133 (ISfifii.
Where a person has been heard from at a par-
ticular time, the evidence will not be rejected
as hearsay. Dowd v. Watson, 105 X. C. 470
(1890).
3. Smith v. Smith, 49 Ala. 156 (1873); 2
Chamb., Ev., 1103.
4. Robinson v. Robinson, 51 111. App. 317
1893) : Sterrett v. Samuel, 108 La. 346, 32
So. 428 (1902): Lancaster v. Washington L.
ln>. Co., 62 Mo. 121 (1877) : Straub v. Grand
Lodge, etc., 37 N Y. Supp. 750. 2 App. Div.
138 (1896), aff'd 158 X. Y. 729, 53 N. E. 1132
305
DEATH.
! 457,458
Shorter Periods. The prima facie inference of death from absence, unless
accompanied by information among family and friends, may arise at an earlier
time than seven years when appropriate facts are shown."' Where the lapsed
interval is less than seven years more affirmative evidence of death is needed.
457. [Presumption of Death]; Subjective Facts.- The habits, tempera-
ment, objects in life, plans, ideals, and, indeed, anything out of which a motive
or shade of motive may arise in case of a person's failure to communicate with
home and friends may be received by the court so far as it tends to ascertain the
reason for the conduct in question. 8 Thus, where a person is of a cheerful
disposition, attached to his family and friends, 9 a shorter period of absence
will ground a prima facie inference of death, than would be the case in respect
to one afflicted with domestic troubles, or naturally vicious in character 10 or of
a gloomy and morose disposition.
Peculiar Inducements to Communicate. In general, any circumstance which
should have hastened the person affected in communicating with family and
friends may be shown to have been known to the absentee. 11
458. [Presumption of Death] ; Unavailing Search. 12 The probability that
(1899) ; Travelers' Ins. Co. v. Rosch, 23 Ohio
Cir. Ct. 491 (1902); 2 Chamb., Ev ., 1104,
n. 1, and cases cited. In proportion as the
field over which inquiries are to be made
and from which alone information can be
received becomes limited, does the inference
of death from failure to hear grow stronger
in probative force. Id.
5. Tisdale v. Conn. Mut. Life Ins. Co., 26
Iowa 170, 96 Am. Dec. 136 i 1868) -. Carpenter
v. Supreme Council L. of H., etc., 79 Mo.
App. 597 (1899) ; Cox v. Ellsworth, 18 Neb.
664, 26 X. W. 460, 53 Am. Rep. 827 (1886) ;
Stouvenel v. Stephens. 2 Daly (X Y.) 319
(1868) ; 2 Chamb., Ev., 1105, n 1, and cases
cited.
6. Garden v Garden. 2 Houst. (Del ) 574
(1871). The death of a person may be pre-
sumed in less than seven years from circum-
stances showing the strong probability of
his death as where a man with no known
reason for disappearing is lost and track?
leading to the river and other circumstances
create a strong presumption that he ha= been
drowned. Coe v. Xational Council. Pfi Xeb
HO. 145 X. W. 112. L. R. A. 101/5 V 744
i I!H4).
7. 2 Chamberlayne. Evidence. 1106.
8. Reedy v. Mil'lizen. 15.3 111 636. 40 X. E.
1028 (1895); Tisdale v. Conn. Mut. L Ins.
Co., supra; Behlmer v Grand Lodge A. O. I".
W., etc., 109 Minn. 305, 123 X. W. 1071
( 1909) ; 2 Chamb., Ev., 1106, n. 1, and cases
cited.
9. In re Koss' Estate. 140 Cal. 282, 73
Pac. 976 (1903): Spahr v. Mut. L. Ins. Co.,
98 Minn. 471, 108 X. YV. 4 (1906); Cox v.
Ellsworth, supra: Dunn v. Travis, supra;
Chapman v. Kullman, 191 Mo. 237, 89 X. W.
924 ( 1905) ; 2 Chamb., Ev., 1106, n. 3 and
cases cited.
10. In re Miller, 9 X. Y. Supp. 639 (1890),
affd 147 X. Y. 713 (1895). So also, in case
of a man devoted to business, of good habits
who has a permanent residence, than would
be the case were the person in question one of
shiftless and roving habits. Springmeyer v.
Sovereign Camp. Woodmen of the World (Mo
App. 1910). 120 s. W. 273.
11. In re Miller, supra. For example, the
effect of mere failure to hear is greatly
strengthened where a person who knows that
he has rights in bank deposits or other prop-
erty, fails for a long period to advance any
claim to them. Louisville Bank v. Public
School Trustees. S3 Ky. 219 (1885). This
inference is still further strengthened where
the absentee had previously demanded his
rights with regularity and the money i*
necessary to his support were he alive. Mat-
ter of Ackerman, 2 Redf. Sur. (X. Y.) 521
(1877).
12. 2 Chamberlayne, Evidence, 1107-
1109.
458
PlZESUMPTIOX OF LAW.
306
information would have been received from a person had he been alive is
greatly increased where diligent search has been made for him. 13 This re-
enforcement of the probative force of the inference of death is strong in pro-
portion to the thoroughness and intelligence with which search has been made
and the length of time over which it has been maintained. 14 On the contrary,
where no efforts have been made to obtain information, extended absences
without knowledge even on the part of the family, 1 " do not raise the prinia facie
inference of fact or the presumption of law. While affirmative evidence of
suitable search will, as a rule, be insisted upon by the court, the require-
ment will be dispensed with where it is obviously the most pressing moral duty
of the absentee to communicate with the person who has failed to hear. 1 ' 5
\\'kat Constitutes. The presiding judge may well be justified in requiring
the affirmative evidence of search, in addition to the inferences arising from
failure to hear, in appropriate quarters. 1 ' "All those persons who in the
13. Hansen v. Owens, 132 Ga 64S, 64 S. E.
800 ( 1909) ; Kennedy v. Modern Woodmen
of America. 24;} 111 560, 90 X. E. 1084
(1910) ; VVentworth v. Wentworth, supra; In
re Barnes' Estate, 91 X. Y Supp 706, 100
App. Div. 479 (1905) ; 2 Chamb.. Ev., 1107,
n. 1, and cases cited.
14. McCartee v. Camel, 1 Barb Ch. (X. Y.)
455 i 1846) : State University v. Harrison, 90
N. C. 385 (1884); Xehring v. McMurrain
(Tex. Civ. App. 1898), 45 S. W 1032; 2
Chamb., Ev., 1107, n. 2, and cases cited. A
further enhancement of evidentiary value
arises where the unavailing search has been
diligently prosecuted over a limited area, e.g..
a ship at sea. Traevlers' Ins. Co. v. Kosch,
supra. Where advertisements have been in-
serted for a considerable time in papers likely
to come to the attention of the person in
question if alive or a searching inquiry has
been made at the place where he was last
known to have been living, a presumption or
inference of death naturally arises, where such
efforts are unattended with success In re
Robertson, P D., p 8 05 E. C. L. 16 (1896).
J he probative force of failure to hear from
advertisements may be affected by the illiter-
ate condition of the person intended to be
reached. In re Miller, supra.
15. In re Bd of Education. 173 N. Y. 321.
66 X'. E. 11 (1903). dismissing appeal. 77 X'
Y. Supp. 1121. 74 App. Div. 632 (1902):
Ulrich's Estate. 14 Phila (Pa ) 243 (1880).
16. Thus, where a wife has remained at the
home of herself and her husband for seven
years, her failure to hear for that time will
raise a presumption of death even in the ab-
sence of any evidence of search on her part.
In re Harrington's Estate. 140 Cal. 244, 7:?
Pac. 1000 (1903), rehearing denied, 140 Cal.
294, 74 Pac 136; Behlmer v. Grand Lodge,
A. 0. U. W., 109 Minn. ,>05, 123 X. W. 1071;
Miller v. Sovereign Camp, Woodmen, etc., 140
Wis. 505, 122 X. W. 1126 (1909). The same
rule has been applied to other cases. See 2
Chamb., Ev., 1107, n. 7, and cases cited.
17. Henard v. Bennett, 76 Kan 848, 93 Pac.
261 (1908) ; Modern Woodmen of America v.
Gerdom, 72 Kan. 391, 82 Pac 1100 (1905) ;
2 Chamb., Ev., 1108, n. 1. and cases cited
Presumptive absence. The presumption of
death from seven years' absence depends on
inquiry made of the persons and at the places
where news of him if living would most
probably be had. Modern Woodmen v.
Ghromley. 41 Okla 532. 139 Pac 306, L. R
A. 1915 B728 (1914). Death will be pre-
sumed by the unexplained absence of a person
for seven years without having been heard
from, although diligent inquiry had been
made for him. and a rule of a fraternal insur-
ance company that unexplained absence
should never be evidence of death is void as
unreasonable. Hannon v. Grand Lodge. 9'.t
Kan. 734. 163 Pac. 169, L. R. A. 1917 C
1029 (1917).
Where one leaves his orphan brother in
an orphans' home and goes to another state
where he stays lor a number of years and re-
turns and spends three days trying to find his
brother, this is not sufficient evidence of death,
although it also appears that an epidemic
visited the asylum the year before the search,
where it did not appear that the brothers
307 DEATH. 459,460
ordinary course of events would likely receive tidings if the party were alive,
whether members of his family or not, should be interrogated, and the result
of the inquiry should be given in evidence, or the testimony of the parties
themselves should be produced at the trial;" ls " and until reasonable effort
has been expended to exhaust all patent sources of information, and all others
which the circumstances of the case may suggest, it cannot be truthfully asserted
that diligent inquiry has been made." ly
Administnidre delails. Under the rules of judicial administration, the
burden of proof is usually upon the party alleging death at a particular time
to establish that fact, 2 " by the most probative and conclusive evidence. 21
459. [Presumption of Death] ; Computation of the Seven Year Period The
period of seven years at the end of which a presumption of death arises is
taken to begin at the time when the last tidings of or from the person in ques-
tion were received. 22
460. [Presumption of Death] ; Time of Actual Death; No Presumption of Life
During Seven Years. 23 The time at which the presumption in question estab-
lishes the prima, facie inference of death is at the end of seven years from the
time when information was last received.
Life During Entire Period. The courts have left to the actor the duty
or burden of producing evidence establishing death at any particular time
during the seven years. On this point, of the time of actual death, the sub-
stantive law of persons acting through judicial procedure is absolutely silent. 24
Xo presumption of law exists to the effect that the person in question will be
taken to have been alive during the entire period of seven years, 25 although
were in the habit of corresponding or that the .Supp. 961, 35 Misc. 348 (1901); 2 Chamb.,
lost brother was in the asylum when the Ev., 1110.
search was made. Modern Woodmen v. 23. 2 Chamberlayne, Evidence, 1111-
Ghromley, 41 Okla. 532, 139 Pac. 306, L. R. 1114.
A. 1915 B728 (1914). 24. Schaub v. Griffin, 84 Md. 557, 36 Atl.
18. Ilitz v. Ahlgren, 170 111. 60, 48 X. E. 443 (1897).
1068 (1897). See also, 13 Cyc. 301. 25. State v. Henke, 59 Iowa 457, 12 X. W.
19. Modern Woodmen of America v. Ger- 477 (1882); Smith v. Combs, supra; Supreme
dom, 72 Kan. 391, S2 Pac. 1100 (1905). Commandery, etc.. v. Everding, 20 Ohio Cir.
20. Modern Woodmen of Am. v. Gerdom, Ct. 6^9, 11 Ohio Cir. Dec. 419 (1900); 2
supra; 2 Chamb., Ev., 1109. Chamb., Ev., 1111, n. 2, and cases cited. In
21. For example, where the evidence as to case of absence of seven years there is no pre-
a certain person's death is furnished by let- sumption that death occurred at any particu-
ters, the judge may insist that the writings lar time, but at the end of seven years' ab-
themselves should be produced. Martinez v. sence the law presumes him to be dead. Apitz
Vives. 32 La, Ann. 305 ilSSO). Proof of v. Knights and Ladies of Honor, 274 Til 196,
death cannot be made by production of a news- 113 X. E. 63, L. R. A 1917 A. 183 (1916).
paper, if more conclusive evidence be reason- A presumption of death may arise from seven
ably procurable. Fosgate v Tlerkimer Mfg.. years' unexplained absence. So where a
etc.. Co., 9 Rarb. (X. Y.I 2S7 (1S50). young unmarried man vas in the habit
22. Smith v Combs. 40 X .T Eq. 420. 24 of writing regularly to his parents and is
Atl. (1S92) ; Morrow v McMahon, 71 X. Y. last heard from as going to the mines in
PRESUMPTION OF LAW.
308
some suggestion has been made that such is the effect of the assumption of the
continuance of life when imported into the consideration of the matter. ' M
Death at Beginning of Period. It has been judicially asserted that the
absentee will be assumed to have died at the beginning of the period of seven
years. 27
Death at End of a Considerable Period. A middle ground has, however,
been suggested ; to the effect that death will be presumed to have taken place
after the lapse of some considerable time from the disappearance.-*
Death at the End of Seven Years. In reality, the only assumption
which the law makes is that the absentee is dead at the end of the statutory
period. 29
Xo Assumption of Time of Death During the Seven Years. There is 110
presumption of law that death took place at any particular time within the
period of seven years/ 5 "
Burden of Evidence. The party to whose case the fact of death at a par-
ticular time within the statutory period is essential has the burden of evidence
to establish it. ;!1
Peru his death may be presumed after seven
years. Hut there is no presumption of his
death at any particular time in that period
McLaughlin v. Sovereign Camp, etc.. 97 Neb.
71, 140 X. W. 112, L. R. A. 1015 B 756
26. Eagle v. Emmet, 4 Bardf. Sur. (X. Y.)
117 (1856); Shown v. McMackin, 9 Lea
(Tenn.) 601 (1882); Whiteley v. Equitable
Life, etc., Co.. 72 Wis 170 ( 188M : 2 C 'hamb..
Ev., 1111, n. 3, and cases cited. "While,
therefore, it is true that there is no pre-
sumption that death occurred at any particu-
lar time within the seven years, it is also
true that, in the absence of contravening facts
or controlling presumptions, it will be pre-
sumed that life continued during the entire
period." Reedy v. Milli/en. 15 111. 6:50. 40
X. E. 1028 (18<t5i, quoted in 1:5 Cyc.. p. 304.
There is no presumption of the continuance
of life after the lapse of the statutory period.
Gibson v. Hall. 74 L. J. Ch. 548, 2 Ch. 181.
02 L. T. 820 (1005). For Effect of the Pre-
sumption of the Continuance of Life, see dis-
cu*sion in 2 ('hamb.. Ev.. 1112.
27. Godfrey v. Schmidt. Cheves Eq. (S. C.I
57 <1840i -. 2 Cliamb., Ev.. 1113, n. 1, and
cases cited.
28. Xepean v. Doe. 7 L. J. Exch. 335. 2 M.
& W. 894. Thayer, Ev.. 109 (1837). Thus.
where a vessel on which the absentee took
passage was not arain heard from, it has
been held that death will be taken to have
occurred at the end of the time covered by
the longest known voyage between the port
of sailing and that of destination. Gerry v.
Post, 13 How. Pr. (X. Y.) (1S55): Oppen
heirn v. Wolf. 3 Sandf. Ch. fX Y.) 571
(1846). The time of actual death, however,
whether before or after the expiration of the
statutory period, is purely a question of evi-
dence, for the determination of the .jury. But-
ler v. Supreme Court I. O. F., 53 Wash. 118,
101 Pac. 481 (1000).
29. Reedy v. Millizen, supra; Bailey v.
Mailey. 3ii M ; ch. 181 (1877); Smith v.
Knowlton, 11 X. H. 101 (1840): Burkhardt
v. Burkhardt, 63 X. J. Eq. 470, 52 Atl. 296
H902) : In re Davenport, 75 X. Y. Supp. 934,
37 Misc. 455 (1902): Rhodes' Kstate. 10 Pa.
Co. Ct. 386 i 1890 1; 2 Chamb.. Ev., 1113,
n. 5, and cases cited. As to Logic and Pro-
cedure, see 2 Chamb., Ev., 1113, and notes
6-8.
30. Scbaub v. Griflin. supra: Spahr v. Mut.
L. Ins. Co.. 08 Minn. 471. 108 X. W. 4 ( 1906) :
McCartee v. Camel. 1 Barb. Ch. (X. Y.) 455
(18461 : Whiteley v. Equitable L. Assur. Co..
supra : 2 Chamb., Ev., 1114. n. 2, and cases
cited.
31. Whitintr v. Xicholl. 46 111. 230. 92 Am.
Dec. 248 (1867); Johnson v. MeritheAV, 80
Me. Ill (1888); Schaub v. Griffin, supra:
Bradley v. Modern Woodmen of Am.. 146 Mo.
App. 428. 124 S. W. 69 (1910): 2 Chamb.,
Ev., 1114, n. 3. and cases cited.
300 DEATH. S -Mil
461. [Presumption of Death] ; Presumption Rebuttal. 32 The presumption
of death from seven years' absence without tidings received by those who
are likely to hear, is, like all true presumptions of law, clearly rebuttable. 33
The burden of evidence to produce rebutting inferences is on the party against
whom the presumption operates ' 4 and, until such rebutting evidence is
produced, the presumption establishes a prima facie case, i.e., sustains the
burden of evidence. 35
Affirmative Evidence of Life. In rebuttal it may be affirmatively shown
even by persons not members of the family, 36 that the absentee was alive within a
period of seven years. The testimony of a single witness 3T accompanied by
corroborative evidence of some independent fact, as the receipt of a letter from
the alleged deceased within seven years, 38 will prevent the operation of the pre-
sumption. The presumption of death is equally overcome by evidence of
witnesses that the absentee returned to his home 39 or is in some other way
shown to be alive 40 within seven years.
Hiding. It may be shown by the opponent, in rebuttal, that the absentee
had a motive for his silence, as that he was a fugitive from justice, 41 had
absconded from his creditors, 42 had run away from an orphan asylum, 43 prison,
jail or other place of involuntary detention, or has some other reason for con-
cealing his identity. 44
Motive Xot to Return or Communicate. Even where the absentee is not
under a strong motive to conceal his whereabouts, he may be lacking in desire
32. 2 Chamberlayne, Evidence, 1115- 2 Chamb., Ev., 1116, n. 2, and cases cited.
HIS. 38. Smith v. Smith, 49 Ala. 156 (1873).
33. In re Stockbridge. 145 Mass. 517. 14 39. Thomas v. Thomas, 19 Neb. 81. 27 X.
X. E. 9-28 (1887) ; Biegler v. Supreme Coun- W 84 (1887).
cil. etc., 57 Mo. App. 419 (1894) ; In re Liter, 40. Spiltoir v. Spiltoir. 72 X. J. Eq. 50,
19 Mont. 474, 48 Pac. 753 (1897) ; 2 Chamb., 64 Atl. 96 (1906). Most conclusive of all,
Ev., 1115, n. 1. and cases cited. of course, is the reappearance of the person
34. Magness v. Modern Woodmen of Amer.. in question. Mayhutrh v. Rosenthal, 1 Cine.
146 Iowa 1, 123 X \V. 169 (1909): Hoyt v. Super. Ct. (Ohio) 492 (1871 i.
X T ewbond, 45 X. J. L. 219, 46 Am. Rep. 757 Question for Jury. Where rebutting evi-
( 1883) . dence makes it reasonable for the jury to find
35. Magness v. Modern Woodmen of Amer.. either way, the question will be submitted to
supra; Willcox v. Trenton Potteries Co., 64 them. Mutual Ben. L. Ins. Co. v. Martin. 103
X. J. Eq. 173, 53 Atl. 474 (1902). The same Ky. 11, 55 S. W. 694. 21 Ky. L. Rep. 1465
idea has been put into the rather misleading (1900). CONTRA. Minneapolis M. Co. v. R.
form of saying that until rebutting evidence is Co., 51 Minn. 304, 53 X*. W. 639 (1892).
introduced, the presumption of law is conclu- 41. Ashbury v Sanders, 8 Cal. 62. 68 Am.
sive. Willcox v. Trenton Potteries Co.. supra. Dec. 300 (1857): O'Kelly v. Eelker. 71 Ga.
Strictly speaking, the presumption of death 775 (1883): Winter v Sup. Lodge K. of P.. 96
from absence is in no proper sense conclusive Mo. App. 1. 69 S. W. 662 (1902) : 2 Chamb.,
Madness v. Modern Woodmen of Amer.. supra. Ev., 1117. n. 1. and cases cited.
36. Flynn v. Coffee. 12 Allen (Mass.) 133 42. Sensenderfer v. Pac. Mut. L. Tns. Co..
(1866). 19 Fed. 68 (1882).
37. Springmeyer v. Sovereign Camp. Wood- 43. In re Miller. 9 X. Y. Supp. 639 (1890).
men of the WorM (Mo App. 1910). 129 S. aff'd 147 X Y. 713. 42 X. E. 726 (1S95K
W. 273: Kennedv v. Modern Woodmen of 44. Donovan v. Twist. 93 X. Y. Supp 990,
Amer., 243 111. 560, DO X. E 1084 (1910); 105 App. Div. 171 (1905).
462,463 PRESUMPTION OF LAW. olO
to reveal them. He may be flighty and visionary, in his mental methods. 45
The case may be one where the motive to return could not effectively operate
upon the volition of the person in question, as in case of children of tender
years 4t5 and others not sui juris, where there is, properly speaking, no inde-
pendent volition to affect. The same inference arises where the person is
under the restraint of others, is in prison or the like. 47
462. Presumptions of Law; Criminal Cases. 48 The jurisprudence of both
England and America has seen lit to establish in connection with the sub-
stantive law of crimes various presumptions of law attaching a prima facie
quality to the inferences of fact arising out of certain definite circumstances.
Many of these presumptions of law are statutory at the present day. 49 'No
constitutional right of a defendant to confrontation, 50 a speedy and public trial
by an impartial jury, to compulsory process, or to a presumption of innocence
in his favor, is infringed by the passage of such a statute erecting possession of
certain articles into a prima facie case of guilt of a given offense. 51
Presumption of Coercion. A familiar rule, in the relations of husband
and wife in connection with crimes done by the wife in the presence of the
husband may be put into the form of saying that there is a presumption of
coercion of a wife by her husband to commit a crime, from his presence at
the time of the commission, but the presumption is not conclusive, and may be
rebutted. 52
463. [Criminal Cases] ; Capacity for Crime. 53 In the absence of evidence
of his age, an accused person is said to be presumed (assumed) capable of
committing a crime. 1 "' 4 Still, proof of age may, under the substantive law,
customarily disguised under the terms of presumption, i.e., of evidence, at-
tach to the fact of age certain definite effects as to capacity to commit particular
crime. 55
Under Seven. Below a certain fixed age, established by the common law at
45. Sensenderfer v. Pac. Mut. L. Ins. Co., such illegal purpose and useless for any
supra. other, instances of a very large number of
46. Manley v. Pattison, 73 Miss. 417, 19 similar presumptions of law in criminal cases
So. 236, 55 Am St. Rep. 543 (1895); '2 are furnished. 2 Chamb., Ev., 1119.
Chamb., Ev., 1118. 50. 224 et seq.; 1 Chamb., Ev., 458
47. Schwarzhoff v. Necker, 1 Tex. Unrep. et seq.
Cas 325 (1880). 51. State v. Sheehan, 28 R. I. 160, 66 Atl.
48. 2 Chamberlayne, Evidence, 1119. 66 (1007).
49. Robertson v. People, 20 Colo. 279 52. Com. v. Adams, 186 Mass. 101, 71 N".
(1894) ; Colev. Porteous, 19 Ont. App. (Can.) E. 78 (1904).
Ill (1892): ftulson: Philosophy of Proof, 53.2 Chamberlayne, Evidence, 1120-
434, 498. Wherever, for example, the pos- 1120g.
session of fish or game out of season is made 54. Rroadnax v. State, 100 Ga. 62, 25 S. E.
prima facie evidence of a taking in close sea- 844 ( 1 896 ) .
son contrary to law, or a counterfeiter or 55. State v. Howard, 88 N. C. 650 (1883) ;
burglar is prima facie guilty of counterfeit- Jones v. State, 31 Tex. Cr. 252, 20 S. W. 578
ing or burglary if unable to satisfactorily ex- (1892) ; 2 Chamb., Ev., 1120.
plain his possession of tools well adapted to
311
CAPACITY FOR CKIME.
7, but which has been variously extended by statute to 9, 5e 10 57 or even
12, 8 a child is said to be " conclusively presumed " incapable of committing
crime. 59
Seven to Fourteen. Between the ages of 7 and 14 60 there is, it is said, a
presumption of law that an infant is incapable of committing a criminal
offense." 1 The ground for this rule is that he is not of sufficient judgment
and understanding to be aware of the nature of his act. 02 This assumption
may be rebutted by evidence showing that this ability to realize the nature anS
quality of a criminal act, in reality, existed at the time of the offence. 63 Where
this knowledge is shown to have been present he may be punished for what
he has done. 04 The burden of evidence is upon the prosecution to prove the
actual capacity for crime. 63
Rape. At common law, a male infant under the age of 14 was conclusively
presumed 6 to be incapable of committing the crime of rape. This rule
56. Gardiner v. Mate, 33 Tex. 692 (1870).
57. Canton Cotton Mills v. Edwards, 120
Ga. 447, 47 S. E. 937 (1904); Angelo v.
People, 96 111 209, 36 Am. Rep.' 132 (1880).
58. Dove v. State, 37 Ark. 261 (1881).
59. Ford v. State, 100 Ga. 63, 25 S. E 8-'
(1896); State v Aaron, 4 X. J. L. 231. '
Am. Dev. 592 (1818) : People v. Townsend, 3
Hill (X. Y.) 479 (1842) : State v. Davis, 104
Tenn. 501, 58 S W. 122 (1900): 2 Chamb.
Ev., 1120a. n. 4, and cases cited. Trans
lated into the language of substantive law.
where the conclusive presumption properly IK-
longs ( 470 et seq. ; 2 Chamb., Ev , 11<!
ft sen )> this means that a child under t\n>
age is not criminally liable for the conse
quences of his acts.
60. In various states where the legislature
has seen fit to increase the first period oi
legal immunity, the second is correspondingly
shortened. Thus, in Arkansas, the second pe
riod extends from 12 to 14. Dove v State.
supra. In Georgia and Illinois, from 10 to
14. Ford v. State, supra: Angelo v. People.
supra, in New Yorlv, the legislature ha^
diminished the age limit within which an
infant is prima facie incapable of crime, fix-
ing the years of the second period as from 7
to 12. People v. Squazza, 81 X. Y Supp. 254.
40 Miac. 71 (1903). Texas combines these
two methods of treatment by establishing the
period of presumable immunity as between
the years 9 and 13. Allen v State (Tex. Cr.
App. 1906), 37 S. W. 757.
61. Harrison v State. 72 Ark. 117. 78 P.
W. 763 (1003) : State v Milholland. SO Iowa
5, 56 X. W. 403 (1883): Com. v Mead, 10
Allen (Mass.) 398 (1882); State v. Adams,
76 Mo. 355 (1882) ; People v. Domenico, 92
N. Y. Supp. 390, 45 Misc. 309 (1904) ; State
v. Toney, 15 S. C. 409 (1880); and caaes
cited in last preceding note. See also, 2
Chamb., Ev., 1120b, n. 2, and cases cited.
62. 463: 2 Chamb., Ev., 1120f.
63. McCormack v. State. 102 Ala. 156, 15
So. 438 (1894); People v. Squazza, supra:
State v. Hicks, 125 X. C 636, 34 S. E. 247
(1*99) ; State v. Davis, supra; Allen v. U. S.,
150 U. S. 551, 14 S. Ct. 196, 37 L. ed. 1179
( 1 893 ) : and cases cited in last two preceding
notes. See also, 2 Chamb., Ev., 1120b, n. 4,
and cases cited.
64. State v. Fowler, 2 Ky. Law Rep. 150
(1880) ; State v. Guild, 10 X. J. L. 163, 18
Am. Dec. 404 (1828)-; People v. Teller, 1
Wheel Cr. (X. Y.) 231 (1823); Com. v.
McKeagy. 1 Ashm. ('Pa.) 248 (1831); 2
Chamb., Ev., 1120b, . 5, and cases cited.
65. Harrison v. State, upra ; Ford v. State,
supra; State v. Adams, supra; 2 Chamb.,
Ev., 1120b, n. 7. and cases cited.
Inference of Fact. There is a general in-
ference of fact that a child under 14 fails to
possess the requisite knowledge, mental and
physical powers required for the commission
of a criminal act. This inference or pre-
sumption is very strong while he is near the
age of 7 but becomes weaker as he progresses
toward the age of 14. McCormack v. State,
supra; State v Aaron. 4 X. J. L. 231. 7 Am
Der. 592 (1818) : 2 Chamb.. Ev., 1120c, n.
2. and cases cited.
66. It is not an inference at all, but a rule
^ 4G3 PKKSUMPTIOX OF LA\V. 312
relates to bis assumed physical capacity to commit the crime. 67 The substantive
law, therefore, freed the infant from the consequents >f a crime of this na-
ture, as principal in the first degree."* The offense of being an accessory, if
absent from the scene of the crime tl! * or principal in the second degree, if
present, 7 " might still be committed by the infant though under fourteen. The
early rule continues to be followed in certain American jurisdictions.' 1 In
others, however, the assumed physical incapacity of the accused has been placed
upon the same legal footing as the presumed mental incapacity'- of persons
of the same age to commit this and other crimes.
Fourteen to Twenty-one. In the absence of special circumstances or rules
of substantive or procedural law, the fact of minority, i.e., that one accused
of crime is under the age of IS, where that is the date of majority, or under
21, the more usual limit, does not exempt an accused person from criminal
liability for the consequences of his acts.' 3 In the absence of evidence, capacity
for crime will be assumed and this assumption, it is said, will not be affected
by the simple statement of the accused that he did not know that it was wrong
to do as he had done. 74 This assumption may be rebutted by appropriate evi-
dence tending to show actual incapacity.' 5
Proof of Mental Stale or Condition. The defendant must be affirmatively
shown to have had sufficient maturity and discretion of mental power to ap-
preciate the nature and consequences of his act. 76 The evidence need not be
of substantive law. State v. Sam, 60 X ( . 72. 2 Chamb , Ev.. 1120f.
293 (1864). . 73. Hill v. State, 63 Ga. 578, 36 Am. Rep.
67. Gordon v. State, 93 Ga. 531, 21 S. K 120 (1879) ; Angelo v. People, 96 111. 200. lie
54, 44 Am. St. Rep. 189 (1893): Payne v Am. Rep. 132 (1880); State v. Kluseman, 53
Com., 33 Ky. L. Rep. 229, 110 S. \Y. 311 Minn. 541, 55 N. AY. 741 (1893): People v
(1908); People v. Randolph, 2 Park Cr. (X. Kendall, 25 Wend. (X. Y.) 399. 37 Am. Dec.
\.) 174 (1855): State v. Fisk. 15 X. D. oSV 240 (1841): 2 Chamb,. Ev.. 1120e. n.
108 X. \Y. 485 -(1906): 2 Chamb.. Ev.. and eases cited. Thus, where one obtains
1120d. n. 2, and cases cited. " Xo convic- property securing payment of the price of it
tion for rape can be had against one who was by a mortgage upon certain chattels, repre-
under the age of 14 years, at the time of the senting that he is of full age, and is the
alleged act, unless his physical ability to owner of the mortgaged property, while the
accomplish penetration is proved as an ind*> mortgage may be voidable by reason of non
pendent fact, beyond a reasonable doubt' age. the minor will be held criminally li:
X. Y. Penal Code. 279. for swindling by false pretences. Lively v.
68. Reg. v. \Yilliams (1S93>. 1 Q. R. 32i>. State (Tex. Cr. App. 1903), 74 S. W. 321
62 L. J. M. C. 69. 5 Reports 186. 41 Wkly. So, also, a boy over 14 will be presumed ca-
Rep. 332: and other cases cited in 2 Chamb. pable of committing rape. State v. Handy,
.tv.. 1120d. n. 3. 4 Harr (Del.) 566 (1845); Payne v. Com.,
69. State v. Mclntire. 66 Iowa 339. 23 X supra: Com. v Hunimel, 21 Pa. Co Ct. 44:
W. 735 (1885) . 1899).
70. Law v. Com.. 75 Ya. 885. 40 Am. Rep. 74. State v. Kluseman. supra : 475 : 2
750 (1881). Chamb, Ev., 1166. The burden of evidence
71. Chism v. State. 42 Fla. 232. 28 So. 30* is upon him to show incapacity. State v. Di
ilOOO); Com v. Green. 2 Pick (Mass.) 3SO Guglielmo (Del. 1903). 55 Atl. 350.
(1824) : State v. KnigMen. 39 Or 63. 64 Pa. 75. State v. Learnard. 41 Vt. 585 (1869).
866. 87 Am St. Rep. 647 (1900); 2 Chamb.. 76. Dove v. State, 37 Ark. 261 (1881);
Ev., 1120d, n. 6, and cases cited. Ford v. State, 100 Ga. 63 (1896) ; People v.
313 LABCEHY. 464
direct, although the conclusion of a skilled witness, expert, so-called, will be
received on this point. 78 Probative facts of a circumstantial nature may be
received,' 9 whether extrinsic to the offense or connected with the doing of the
criminal act itself. 80 When evidence is introduced upon the issue of mental
capacity, the question becomes one of fact for the jury" 1 Capacity to entertain
a criminal intent must be clearly and strongly proved ; 82 the jury must be
satisfied upon the point beyond a reasonable doubt, 83
Procedural Assumptions. For reasons elsewhere suggested 84 proof of the
phychological fact necessary to constitute mental capacity for crime, the state
of doli capix, is necessarily attended with difficulty. Therefore, in the ab-
sence of all proof of age, the inference or presumption of sanity so-called, 85
leads the court to take it for granted, i.e., to assume, that one accused of
crime is capable of possessing the mental state requisite for its commission. 86
Where the accused is shown to be within the limit of the first age period, above
mentioned, 87 the rule of substantive law is frequently put into the form of
saying that one under the age of 7 is conclusively i/resumed to be incapable
of forming the mental state essential to the commission of the crime ; 88 and
where the accused is shown to be over 7 and under 14, that there is a pre-
sumption of law that one under that age does not possess the requisite knowl-
edge. 80 intent or other mental state essential to the commission of a crime.
? 464. [Criminal Cases] ; Presumption of Larceny from Recent, "Unexplained
Possession of Stolen Goods. 90 The inference of fact, the teaching of experience,
to the effect that one found in the exclusive possession of recently stolen goods
who cannot satisfactorily account for them is the person who stole them, is un-
doubtedly a strong one. It may fairly be said that the mind recognizes a pro-
bative relation between the mere possession of recently stolen property and
Domenieo, 92 X. \. Supp. 390, 45 Misc. 309 84. 847; 4 Chamb., Ev., 2639.
(1904); 2 Chamb., Ev., 1120f, n. 1, and 85. 424; 2 Chamb., Ev., 1052.
cases cited. 86. State v. Miller, 7 Ohio X. P. 458, 5 Ohio
77. 713 et seq.; 3 Chamb.. Ev., 1949 S. 4 C. P. Dec. 703 (1895).
et seq. 87. 463: 2 Chamb.. Ev ., 1120a
78. State v. N'ickleson, 45 La. Ann. 1172, 88. Even a plea of guilty does not remove
14 So. 134 (1893). the presumption of criminal incapacity. Peo-
79. State- v. Toney, 15 S. C. 409 (1880). pie v. Domenieo, supra.
80. Stage's Case, 5 City Hall Rec. ' N. Y.) 89. Capacity being shown, knowledge of the
177 (1820); Wusnig v. State, 33 Tex. 651 illegality of an act may be assumed. Com.
(1870). See also, State v. Pugh. 52 N. C v. Mead. 10 Allen (Mass.) 398 (1865). A
1 (1859). The personal opinion of the judge sense of moral guiltiness alone i? not suffi-
gained from inspection of the accused i* not cient: guilty knowledge of the nature of the
sufficient. People v. Domenieo. supra crime must be proved, if disputed. Willet v
81. McCormark v. State, supra : Dove v. Com.. 13 Bu>h iKr.l 230 (1S77>; State v
State, supra : State v. Learnard. supra. Yeargan. 117 N*. C. 706. 23 S E. 153. 36
82. Angelo v. People, supra. L. R. A 196 (1895) : Allen v. State (Tex Cr.
83. Martin v. State. Of) Ala. fiO_>. S So. 858. App. 1896). 37 S. W. 757
24 Am. St. Rep. 844 (1800): Law v. Com. 90. 2 Chamberlayne. Evidence, 1121-
75 Va. 885,. 40 Am. Rep. 750 (1 8*1 . : 1129.
Chamb.. Ev.. 1120f. n. 9, and cases cited
PRESUMPTION OF LAW.
31-i
guilty taking or receiving. 01 For reasons analogous to those which constitute
the basis of the inference against a despoiler " 2 this inference of fact be-
comes greatly enhanced in probative value when the possessor, being given a
suitable opportunity of doing so, fails to explain, in any reasonable way, how
he came by the property. 93
Inference Xot Conclusive. Ko authority exists for holding that, in and
of itself, the inference is conclusive in the premises; 94 notwithstanding that
the fact that there is a presumption of law to that effect has been put into the
rather misleading form of saying that in the absence of all explanation or
any evidence of good character, the inference of guilt is conclusive." 5
A Presumption of Law. It is announced by the court, in charging juries
on indictments, or similar proceedings, for larceny, that the unexplained ex-
clusive possession of stolen goods shortly after the commission of the offense
shall be deemed prima facie evidence that the possessor committed the larceny. 96
Where no suitable opportunity for offering an explanation is presented, the
presumption of law does not arise. 97 The rule applies whether the larceny
was simple or aggravated in its nature, was from the person, 98 committed in a
building," 9 or a part of a burglary or other serious offense. 1
91. People v. Luchetti, 119 Cal. 501, 51 Pac.
707 (1897); Stafford v. State, 121 Ga. 169,
4* S. E. 903 (1904) ; Johnson v. State, 148
Ind. 522, 47 X. E. 926 (1897) ; State v Hoff-
man, 53 Kan. 700, 37 Pac. 138 (1894) ; State
v Toohey, 203 Mo. 674, 102 S. VV. 530 ( 1907) ;
Knickerbocker v. People, 43 X. Y. 177 ( 1870) ;
2 Chamb., Ev., 1121, n. 1, and cases cited.
92. 430 et seq.; 2 Chamb., Ev., 1070
et seq.
93. .State v. Sanford, 8 Ida. 187. 67 Pac.
492 (1901); Robb v. State, 35 Xeb. 285, 53
X. W. 134 (1892); Uouthitt v. Territory, 7
Okl 55, 54 Pac. 312 (1898); Cook v. State,
16 Lea (Tenn.) 461, 1 S. W. 254 (1886): 2
Chamb , Ev., 1121, 'n 3. and cases cited.
See discussion as to Procedural Conflict. 2
Chamb., Ev., 1121. Presumption of guilt
from possession of stolen property, see note,
Bender ed., 43 X. Y. 184. Presumption of
guilt from possession of stolen property, see
note, Bender ed., 151 X. Y. 412.
94. Bellamy v. State 35 Fla. 242. 17 So.
560 (1895) ; Oablick v. People, 40 Mich. 292
(1879) ; State v. Hoshaw, 89 Minn. 307. 94 X.
W. 873 (1903) : People v. Sheahan, 1 Wheel
Cr. (X Y.) 188 (1823): State v. Snell. 40
Wis. 524, 1 X. \V. 225 (1879): 2 Chamb..
Ev.. 1122. n. 1, and cases cited
The mere possession of the stolen goods
does not of itself raise a presumption of lar-
ceny and will not alone support a conviction.
Mullins v. State, Ala. (1918), 77 So. 963;
State v. Ford, X. C. (1918), 95 S. E. 154.
95. State v. Vinton, 220 Mo. 90, 119 S. W.
370 (1909). See, however, Moore v. State
(Tex. Cr. App. 1896), 33 S. VV. 980.
96. State v. Raymond, 46 Conn. 345
(1878); Keating v. People, 160 111. 480, 43
X. E. 724 (1896): Johnson v. State, supra:
State v. Wilson, 95 Iowa 341, 64 X. VV. 266
(1895); Com. v. Deegan, 138 Mass. 182
(1884): People v. Wood, 99 Mich. 620, 5H
X. VV. 638 i!894); People v. Weldon. Ill
X. \. 569, 19 X. E. 279 (1888): 2 Chamb.
Ev, 1123, n. 1, and cases cited.
97. Alexander v. State. 60 Miss. 953
M8S3) ; Ball's Case. 4 City Hall Rec. (X Y ,
113 (1819) : 2 Chamb., Ev. 1123, n. 2, and
cases cited.
98. Roberts v. State, 33 Tex. Cr. 83. 24
S. W. 89.1 (1804).
99. State v King. 122 Towa 1. 96 X. W.
712 (1903).
1. Magee v. People. 139 111 138, 28 X. E
(1891): State v. Conway. 56 Kan. 6S2. 44
Pac. 627 (1896): Knickerbocker v. People,
43 X. Y. 177 (1870). C,ood riinraHer. Th*
presumption of law operates only until evi-
dence is introduced on the subject. Even a
deliberative fact, like proof of good char-
acter, may have this effect. State v. Hes-
315 LARCENY. 464
Limited to Use of Circumstantial Evidence.- The use of such a presump-
tion is obviously limited to cases where the evidence is circumstantial. Should
direct evidence be furnished either as to the actual res gestae of the larceny
or regarding the circumstances under which the possession came to be in the
accused, the inference in question is irrelevant. 2
Statutory Modifications. As a rule, legislative enactments are merely
declaratory of the common law. Occasionally, however, certain modifications
upon the established rule have been introduced, for example, the burden of
evidence to disprove the identity claimed by the owner of the stolen property
may be cast upon the person in whose alleged possession it is found. 3
Administrative Details. The mere fact, however, of such unexplained
possession does not, in the absence of evidence of a corpus delicti by way of
larceny, simple or aggravated, present any evidentiary value in connection
with the present presumption. 4 Xor does probative force distinctly attach
to the inference of guilt, even in case the corpus delicti be established, until
the goods stolen and those found in possession are clearly and closely identi-
fied. 7 '
Presumption of Law Denied. Certain courts have denied the procedural
force of a presumption of law to the inference of guilt which arises from
recent, exclusive, and unexplained possession of stolen goods. 6 Whatever may
be the proper weight in evidence of the inference of guilt from such possession,
where it is found unqualified by other evidence, it will seldom occur that it
sians, 50 Iowa 135 (1878); State v. Sas- ated. White v. State, 21 Tex. App. 339, 17
seen, 75 Mo. App. 197 (1898); People v. S. W. 727 (1886); 2 Chamb., Ev., 1123b,
Preston, 1 Wheel. Cr. i X. Y.) 141 (1823). n. 4, and cases cited.
When the case is otherwit-e doubtful, and the 4. Sanders v. State, 167 Ala. 85, 52 So.
good character of the accused is shown, pos- 417 ( 1910) ; State v. Sasseen, 75 Mo. App.
session of stolen property is not sufficient 197 (1898); Smith v. State, 17 Xeb. 358, 22
proof to convict. People v. Turrell, 1 Wheel. X. W. 780 (1885) ; People v. Caniff, 2 Park.
Cr (X. Y.) 34 (1822). Cr. i X. Y.) 586 (1855): 2 Chamb., Ev.,
2. State v. Spencer, 4 Oen. (Del.) 92, 53 1123c, n. 1, and cases cited.
Atl. 337 (1902): Heed v. State. 25 Wis. 421 5. 2 Chamb.. Ev., 1131; State v. Lack-
(1S70). It is rejected as secondary evidence. land, 136 Mo. 26, 37 S. W. 812 (1896):
( 228: 1 Chamb., Ev., 466.) 2 Chamb., U. S. v. Candler, 65 Fed. 308 (1894). Dis-
Ev. S 1123a. covery of part of the stolen goods grounds an
3. Thus, in states where the theft of cattle inference that the possessor removed all the
is a serious and customary offense and the missing property. People v. Fagan. 66 Cal.
property involved difficult of identification. 534. 6 Pac. 394 (1885): State v. Wilson,
Flores v. State, 13 Tex. App. 665 (1883): supra : State v. Henry. 24 Kan. 457 (18SO).
State v. Eubank. 33 Wash. 203. 74 Pac. 37* The possession of stolen goods thougrh not
(1003). No retroactive effect i> given to the identified as those the subject of the larceny
statute. Espy v. State. 32 Tex. 375 H893). claimed may. however, be competent. Comm.
The presumption may be corroborated by di- v. Coyne. Mass. (1918). 117 X. E. 337
rect proof State v Mclntyre. 53 Wash. 17. 6. Clark v. State. 50 Fla. 15. 52 So. 518
101 Pac. 710 (1900). The statute merely reg- (1910): Ingalls v. State. 48 Wis. 647, 656
ulates the burden of evidence (? : 2 n~0). It has been even said to be impos-
Chamb.. Ev.. 095) -. the jury determine at sihle. State v. Hodge. 50 X. H. 510. 517
what point a reasonable doubt ha? been ere- (1869) : 445. supra ; 2 Chamb., Ev.. 1085.
464 PKESUMPTION OF LAW. 316
will be unaccompanied by qualifying facts, rendering it no longer practically
possible for the court to assign any prima facie value to the inference as one
of fact, and the question becomes one for the jury. 7
"A Question of Fact for the Jury. "--It has proved easy for courts to
feel that for them to create such a presumption of law was to invade the
province of the jury, 8 as exclusive judges of the weight of evidence/' In courts
which forbid the judge to comment upon the weight of evidence 10 it is not
permissible to instruct the jury even that the possession of stolen goods furnishes
a strong inference of the fact of guilt. 11 The defendant is equally unable to
obtain instructions in his own favor, for example, he is not entitled to a ruling
that the mere possession of the stolen goods will not warrant a conviction for
larceny. 12
A Prima Facie Inference of Fact. Courts which have hesitated to declare
that juries must, in the absence of evidence, follow the inference, have ruled
that they may, as a matter of reason, do so if they sec fit. 13 All this is
changed should the accused introduce at the trial, as he may properly do, 14
evidence by way of explanation or rebuttal, on which, if believed, the jury
might reasonably act. The question of weight now becomes one entirely for
them. 15
Jury May Act in Accordance tvith the Inference. Many courts have not
hesitated to announce that the inference itself may well be of prima facie
value, i.e., that the jury would be reasonably justified in acting in accordance
with it. 16 There is, however, authority to the contrary. 17
Prima Facie Value Denied. Certain courts have declined to award the
inference of guil-t from recent unexplained possession a prima facie value. 18
7. Bryant v. (State, 116 Ala. 445, 23 So (1867). See also, Gablick v. People, 40 Mich.
40 (1896); Harper v. State, 71 Miss 202, 292 (1879).
13 So. 882 (1893); State v. Kelly, 73 Mo. 13. Douglass v. State, 91 Ark. 492, 121
608 (1881) ; Stover v. People, 56 X. Y 315 S. W. 923 (1909) ; Brooke v. People, 23 Colo.
(1874) ; State v Pomeroy, 30 Or. 16, 46 Pac. 375, 48 Pac. 502 (1897) ; Jones v. State, 49
797 (1896); 2 Chamb., Ev., 1124, n. 3, and Tnd. 549 (1874) ; State v. Winter, 83 S. C.
cases cited. 153, 65 S. E. 209 (1909); 2 Chamb., Ev.,
8. 125 et seq.; 1 Chamb., Ev., 281 1126, n. 1, and cases cited.
et seq. 14. 465, infra; 2 Chamb., Ev.. 1130a.
9. People v. Mate/.uski, 11 Cal. App. 465, 15. 464, supra; 2 Chamb., Ev., 1125.
105 Pac. 425 (1909); Williams v. State, 60 16. Bergdahl v. People, 27 Colo. 302, 61
Xeb. 526, 83 X. W. 601 (1900) : Lockhart v. Pac. 228 (1900): Stafford v. State, 121 fJa.
State. 29 Tex. App. 35, 13 S. W. 1012 (1890) ; 169, 48 S. E. 903 (1904) ; Miller v. People,
2 Chamb., Ev., 1125, n. 2, and cases citP'V 229 111. 376, 82 X. E. 391 (1907) ; State v.
10. 125 et seq.; 1 Chamb., Ev., 281 Xoble, 96 Mo. App. 524, 70 S. W. 504 (1902) ;
et Kffj. Mills v. Erie R. Co., 113 X. Y. Supp. 641
11. Van Straaten v. People. 26 Colo. 184, (1908); 2 Chamb., Ev., 1127, n. 1, and
56 Pac. 905 (1899) : State v. Bliss, 27 W 7 ash. cases cited.
463. 68 Pac. 87 (1901 ) ; Roberts v. State, 11 17. People v. Cline. 83 Cal. 374, 23 Pac. 391
Wyo. 66. 70 Pac. 803 (1902). (1890): State v. Kimble, 34 La. Ann. 392
12. Underwood v. State, 72 Ala. 220 (1882).
(1882); State v. Hogard, 12 Minn. 293 18. State v. Kimble, supra ; State v. Tros-
317
LARGEST:.
465
In these jurisdictions, it has been held to be error to charge the jury that
there is a presumption of law of guilt, that the law presumed guilt from such
possession, 10 or to any similar effect, 20 or even that the circumstance is an
incriminating one. 21
Corroboration Required. As has just been said, in certain jurisdictions the
inference of fact as to guilt from recent unexplained possession has not been ac-
corded a prima facie effect. 22 The inference may, however, in connection with
proof of other suspicious circumstances, constitute a prima facie case, i.e., war-
rant a conviction. 23 Among circumstances of corroboration are selling the
stolen property at less than fair value, 2 - 4 possession of other property stolen
at the same time, 25 failure to furnish an explanation when the circumstances
shown in evidence call for one. 26
465. [Criminal Cases] ; Explanation. 27 As has been said, the presumption
of law iu. question operates only where no explanation has been furnished. 28
Where explanation is offered, the entire question becomes strictly one of
fact. 2 ' 1 ' The matter is one entirely for the jury and should they experience
a reasonable doubt of the guilt of the accused he is entitled to an acquittal. 30
Opportunity at Trial. The fact that the defendant on the discovery of
the goods in his possession offered no explanation constitutes no ground why
he should not seek to establish one at the trial. 31 A fortiori, a prisoner is
per, 41 Mont. 442, 109 Pac. 858 (1910)
Askew v. U. S., 2 Okl. Cr. 155, 101 Pac. 121
(1909).
19. Campbell v. State, 150 Ind. 74, 49 N.
E. 905 (1897) ; State v. Kelly, 57 Iowa 644.
11 X. \V. 635 (1882).
20. Grifiin v. State, 86 Ga. 257, 12 S. E
409 (1890): State v. Hodge, 50 X. H 510
(1869): State v. McRae, 120 X C. 608, 27
S>. E. 78, 58 Am. St. Rep. 808 (1897); 2
Chamb., Ev., 1128, n. 5, and cases cited.
21. State v. Walters, 7 Wash. 246, 34 Pac.
938. 1098 (1893).
22. People v. Vidal. 121 Cal. 221, 53 Pac.
558 (1898); Williams v. State, 60 Xeb. 526,
83 X. W. 681 (1900) : State v. Reece. 27 W.
Va. 375 (1885) ; 2 Chamb., Ev., 1129, n 1,
and cases cited.
23. Dean v. State, 6 Ga. App. 250. 64 S. E.
671 (1909): Com. v. King. 202 Mass 379,
88 X. E. 454 (1909); State v. Johnson. 33
Minn. 34, 21 X. W. S43 (1884): People v
Zuckerman, 118 X. V. Supp. 127, 133 App.
Div 615 (1909); State v. Wong Quong. 27
Wash. 93. 07 Pao 355 (1901) ; 2 Chamb.. Ev..
1129, n. 2. and cases cited.
24. State v. Hamilton, 77 S. C. 383, 57 S.
E. 1098 (1907).
25. Territory v. Livingston, 13 X. Mex. 318,
84 Pac. 1021 (1906).
26. Pool v. State (Tex. Cr. App. 1907), 103
S. W. 892.
27. 2 Chamherlayne, Evidence, 1130-
1131.
28. State v. McKinney, 76 Kan. 419, 91 Pac.
1068 (1907).
29. State v. Wolf, 6 Pen. (Del.) 323, 66
Atl. 739 (1907); State v. Crooke, 129 Mo.
App. 490, 107 S. W. 1104 (1908) : ;
2 Chamb., Ev., 1124, 1125. For illustra-
tive instances showing what explanations have
been held sufficient, see: People v. Fagan,
98 Cal. 230, 33 Pac. 60 (1893) -. McMahon v.
People, 120 111. 581. 11 X. E. 883 (1887);
State v. Miller, 10 Minn. 313 (1865) ; Hars-
dorf v. State (Tex. App. 1892). IS S. W. 415.
30. State v. Collett, 9 Ida. 608, 75 Pac. 271
H903): Watts v. People. 204 111. 233, 68
X. E 563 (1903); State v. Deyoe, 97 Iowa
744, 66 X. W T 733 (1896) : State v Sally. 41
Ur. 366. 70 Pac. 396 (1902) : 2 Chamb.. Ev.,
1130, n. 4. and cases cited. The explana-
tion may be found in the attending circum-
stances. State v. Winter, 83 S. C. 153, 65
S. E 209 (1909).
31. Echols v. State, 147 Ala. 700, 41 So.
465
PRESUMPTION OF LAW.
318
clearly entitled to reiterate, amplify :i2 and establish by evidence, at the trial,
the explanation asserted on the discovery of the stolen goods, its reasonable-
ness is, as a rule, a question of fact for the jury. 33
Reasonable Doubt Alone Required. The accused has no burden of proof,
no duty of establishing the truth of his explanation on his peril. It is suffi-
cient for him to raise a reasonable doubt as to some material element of his
liability.* 4 It cannot truly be said that the defendant is required " satis-
factorily " to explain his possession of the property in question. 1 * 5
Spoliation. In so doing, the inference of fact arising from attempting a
false explanation 3G may seriously impair the prospects of success. 37 When
the falsity of his explanation has been attacked by the prosecution, the accused
may seek to corroborate its truth' 38 but not, it is said, where no such attack
has been made. 3 "
Spontaneity. 4 " For reasons, more fully stated in another place, the declara-
tion of one in possession of stolen goods in explanation of his holding, made
immediately upon the propriety thereof being questioned, by arrest or other-
wise, may be received as statements of part of the res yestae, i.e., as affirmative
evidence of the facts asserted. 41 So long as the spontaneity persists, the state-
ment may be received in its assertive capacity, even after the declarant has
parted with his possession. 42 A mere narrative, however, will be rejected. 43
37. Wiley v. State, 92 Ark. 586, 124 S. W.
249 (1909); Allen v. State (Tex. Cr. App
1893), 24 S. W. 30: 2 Chamh.. Ev., 1130c,
n. 2, and cases cited.
38. Xelson v. People, 22 Colo. 330. 44 Pac.
594 (1896) : Andrews v. State, 25 Tex. App.
339, 8 S. W. 328 (1888).
39. May v. State (Tex. Cr. App. 1899), 51
S. W. 242.
40. 949 et seq., infra; 4 Chamb., Ev.,
2982 et seq.
41. Bryant v. State, supra ; People v. Cline,
298 (1906); Peeples v. States, 5 Ga. App.
706, 63 S. E. 719 (1909) ; -Tones v. State, 49
Ind. 549 (1875) ; 2 Chamb., Ev., 1130a, n.
1, and cases cited.
32. Brittain v. State (Tex. Cr. App. 1907),
105 S. W. 817.
33. State v. King, 122 Iowa 1, 96 X. \V.
712 (1903); State v. Mandich, 24 Xev. 336,
54 Pac. 516 (1898) ; 2 Chamb., Ev., 1130a,
n. 3, and cases cited.
34. Van Straaten v. People, 26 Colo. 184.
56 Pac. 905 (1899); People v. Walters, 76
Mich. 195, 42 N. W. 1105 (1885); State v. jsupra; Bennett v. People, 96 111. 602 (1880) :
Lax. 71 X. ,T. L. 386, 59 Atl. 18 (1904) : 2
Chamb., Ev., 1130b, n. 1, and cases cited.
35. Van Straaten v. People, supra : Hoge v.
People, 117 111. 35. 6 X. E. 796 (1886).
" Where a party is found in possession of
goods recently stolen directly gives a reason-
able and credible account of how he came into
such possession, or such an account as will
raise a reasonable doubt in the minds of the
jury, then it becomes the duty of the state to
prove that siich account is untrue, otherwise
he should be acquitted." Mr-Donald v. State
56 Fla. 74. 47 So. 485 (1908).
36. 432 et seq.; 2 Chamb.. Ev.. ? 1071
et seq.; Cleveland v. State (Tex. Cr. App.
1909), 123 S. W. 142.
State v. dillespie. 62 i\an. 469. 63 Pac. 742
(1900): 2 Chamb., Ev., 1130d, n. 2, and
cases cited.
42. Taylor v. State. 15 Tex;. App. 356
(1882). '
43. 963. infra ; 4 Chamb., Ev., 3021 ;
Dixon v. State. 2 Tex. App. 530 (1877).
Admissions. If the explanation of the
accused be adverse to his interests, the dec-
laration may be utilised by the prosecution
as constituting an admission, or as being in-
dependently relevant Douslass v. State
supra : State v. TCodman. 62 Iowa 456. 1"
X. W. 06-*? (1883); 534. infra: 2 Chamb,
Ev.. 1313: 837 et seq.; 4 Chamb., Ev.,
2574 et seq.
319 LARCENY. 466,467
Rebuttal. The government, upon proof of the explanation offered by the
accused may feel that it is so improbable as not to impair the prima facie
quality of its own affirmative case, i.e., that it raises no reasonable doubt as to
guilty conduct or knowledge. If so, no rebuttal on the point is necessary. 44
Should the prosecution conclude, however, that the explanation of the ac-
cused is so far plausible that the jury may feel a reasonable doubt as to
the prisoner's guilt, it may introduce evidence in rebuttal, e.g., by showing the
falsity of the explanation. 45
466. [Criminal Cases] ; Place and Cause of Finding. 46 The place of finding
the stolen goods is not material in connection with the presumption of guilt
from recent possession. It need not be in the same state or county as that in
which the larceny was committed. 4 ' The cause of finding may, however, have
important logical bearing upon the strength of the inference itself. 48
Identification of Goods. To identify the discovered goods with those
which have been stolen is a clear necessity for founding any presumption
of law or, indeed, inference of fact. Pieces of money or bank-notes cus-
tomarily in circulation, having no ear mark, 50 are identified with difficulty.
On the other hand, money of unusual amount, ancient or otherwise rare 51
coinage, or distinguished by special marks, 52 may be traced with comparative
ease. The inference of identity is especially easy to draw when reinforced
by other logical deductions. 33 A similarity in general description may suffice,
under certain circumstances, for purposes of identificaton. 54
467. [Criminal Cases] ; Proof of Possession. 55 Where the goods are found
on the person of the accused the issue seems settled but where they are found
in a place over which it is claimed the defendant had control it must appear
that the control was exclusive and that no one else could have had access to
them. 56 The possession should also be personal in the sense that he was
exercising acts of dominion 57 and also the possession should appear to be
recent. 08 What is a recent possession may depend on the nature of the article. 59
44. Hudson v. State, 121 Ga. 147, 48 S E. 51. People v. Getty, 49 Cal. 581 (1875).
903 (1904); State v. Kimble, supra: Jones 52. State v. Pigg, 80 Kan. 481, 103 Pac. 121
v. State. 30 -Miss. 653, 64 Am. Dee. 175 (1909)
(1856) ; 2 Chamb , Ev., 1130e, n 1. and cases 53. Collier v. State (Fla. 1908), 45 So. 752.
cited. For illustrative instances of explana- 54. People v. Xunley, 142 Cal. 441. 70 Pac.
tion held insu.Ticient. Id. 45 (1904).
45. State v. Carr, 4 Pen. (Del.) 52,3. .">7 55. 2 Chamberlayne. Evidence, 1133-
Atl 370 (1904) ; Leslie v. State. 35 Fla. 171, 1136b.
17 So. 555 (1895) : - Chamb.. Ev.. 1130e, 56. State v. Griffin, 71 Iowa 372. 32 X. W.
n. 2. and cases cited. 447 (1887).
46. 2 Chamberlayne. Evidence. 1132. 57. Watts v. People. 204 Til. 233. 68 X K
47. Graves v. State. 12 Wis 591 (I860) 563 (1903).
48. Hudson v State. 9 Yerar (Tenn ) 408 58. Bryant v. State. 4 Ga. App Sol. 62
(1836). S E 540 .1908)
50. Thompson v. State (Fla. 1909), 50 So. 59. State v M.-TJae. 120 X. C 608, 27 S. E.
507 78, 58 Am. St. Rep. 808 (1897).
468 PRESUMPTION OF LAW. 320
468. [Criminal Cases] ; Presumption of Malice in Homicide. 60 A most un-
usual presumption of law is that which as part of the substantive law of
homicide has been understood to assert that where a deliberate killing of a
human being with a deadly weapon is shown, and no other evidence is pro-
duced it will be presumed, as a matter of law, that the killing was done with
malice. 01 it has been held by certain courts that where, nothing appears be-
yond the fact of killing, this will be presumed, as a matter of law, to have
been malicious.'' 2
A Discredited Rule. It will readily be noticed that the drift of modern
judicial opinion is distinctly away from maintaining the presumption of
malice. In many jurisdictions the conclusive quality of the presumption,
originally attached to it, has been dropped. The presumption is treated as an
ordinary rebuttable presumption of law, valid unless and until evidence is in-
troduced, by one side or the other, showing justification or excuse. '' 5 When
such evidence is introduced, the presumption of law, as such, is, like any
other assumption of procedure as distinguished from an inference of fact,
functus officio. Even "in jurisdictions which still continue to announce the
so-called, conclusive " presumption of malice " its potency for injustice has
been greatly lessened under later decisions which have introduced such qualifica-
tions and modifications on its original statement as suffice to reduce it within
very narrow limits.
When evidence is introduced bearing on the question of malice the pre-
sumption of law disappears 64 and it may be said in general that the presump-
tion of malice is used only where direct proof of the actual res gestae is
lacking. 65 The rule that malice is presumed in homicide cases is anomalous
and is apparently an outgrowth of the early canon of construction of special
verdicts that where the jury found that the defendant had killed the deceased
this would be presumed to mean a felonious kill ing.
The true rule is that malice may be established by inferences of fact as
from premeditation, 60 cruelty in killing, 67 the use of a deadly weapon, 68 and
the absence of justification. 60
These inferences of malice may be rebutted by evidence explaining them T(>
60. 2 Chamherlayne. Evidence, 1137- X. W. 385 (1883): State v. Rochester, 72 S.
1158. C. 104. 51 S. E. 685 <1!I05).
61. Com. v. Webster. 5 Cush. 295. 52 Am. 65. Kennison v. State (Xeb. 1908), 115 N.
Dec. 711 (1850). W 289.
62. Hawthorne v. State, 58 Miss. 77 66. Spies v. People. 122 111. 1. 12 X. E.
(1881). S65, 17 X. E. 898, 3 Am. St. Rep. 320 (1887).
63. Stokes v. People, 53 X. Y. 164. 182. 67. State v. Jones, 86 S. C 17. 67 S E.
183 (1873). See also. People v. Down*, 12., 160 (1910).
N. Y. 67 (1890). Coolman v. State (Ind 68. Brown v. State. 62 X. J. L 666. 42
1904), 72 X. E. 568. Atl 811 (1898).
64. Jordan v. State, 79 Ala. 9 (1885): 69. Peri v. People. 65 111 17 (1872)
State v. Earnest, 56 Kan. 31, 42 Par 359 70. State v. Rainslierger, 71 Iowa 746, 31
(1895); People v. Curtis, 52 Mich. 616. 18 X. \V. 865 (1887).
321 MALICE.
as that use was made of a deadly weapon for the purpose of self-defence. 71
Where the inference of malice may be fairly drawn from the evidence of the
prosecution die burden of evidence is upon the defence to rebut the presump-
tion " 2 but the burden of proof to establish malice beyond a reasonable doubt
is upon the prosecution throughout. 73
71. The fact that the alleged self-defence 72. Com. v. York, 9 Mete. 93, 43 Am. Dec.
was effected by the use of a greatly superior 373 (1845).
weapon is by no means conclusive of malice. 73. Daniel v. State, 126 Ga. 541, 55 S. ^.
People v. Barry, 31 Cal. 357 (1866). 472 (1906).
CHAPTER XV.
PSEUDO- PRESUMFIIONS.
Pseudo-presumptions, 469.
conclusive presumptions, 470.
scope of presumptions of this class-fictions, 471.
lost grant, 472.
presumption of malice in libel, 473.
death of attesting witness in case of ancient writings, 474.
consequences of conduct, 475.
good character, 476.
knowledge of law, 477.
presumption of innocence, 478.
an overstated rule, 479.
meaning of phrase, 480.
valuless as affirmative proof, 481.
treatment of prisoners in judicial administration, 482.
weighing the presumption of innocence, 483.
other views, 484.
presumption of survivorship, 485.
469. Pseudo-presumptions. 1 Especially fertile in confusion among various
applications of the term presumption are those where no inference of fact 2 or
assumption of administration 3 is involved. It has seemed convenient to
speak of these as pseudo or false presumptions. General maxims of juris-
prudence, paraphrases of well settled rules of substantive law or procedure more
frequently stated in some other form, metaphysical transpositions of familiar
canons of administration, such are the pseudo presumptions. Usually, they
are spoken of as presumptions of law. 4
Of this class are the presumptions against carriers,, 5 or the presumption of
1. 2 Chamberlayne, Evidence, 1150. X. Y. 35. Presumption from recitals in judg-
2. Supra. 414 et seq.; 2 fhamh., Ev., merit as to service of process, see note, Bender
1026 et xeq. ed., 147 X. Y. 363.
3. Infra, 486 et seq.; 2 Ohamfo., Ev., 5. A presumption of negligence against a
1184 et. seq. sleeping car company arises from the theft of
4. Supra. 444 et seq.: 2 fhamb., Ev., articles in a sleeping car at night. Robinson
1082 et seq. Com. v. Frew, 3 Pa. Co. Ct. v. Southern R. Co., 40 App. D. C. 549, L. R.
R. 402 (1886). 2 Chamlt.. Ev.. 11.10. Pre- A. lOlf) B 621 M013). In a suit against a
sumption as to time deed was delivered, see carrier where the defence is an act of God
note, Bender ed., 41 X. Y. 412. Presumption consisting of a snow-slide the burden of proof
that one presenting note indorsed in blank is remains on the plaintiff to prove negligence,
bona fide holder, see note, Bender ed., 128 The mere fact that the avalanche caused the
323
CONCLUSIVE.
470
payment from lapse of time, 6 or the presumption from prima facie proof of a
will, 7 or that an agent was acting in the scope of his employment, 8 or of owner-
ship 9 in certain cases ; or that an employment is at will when on a weekly or
monthly salary. 10
470. [Pseudo-Presumptions]; Conclusive Presumptions. 11 Among pseudo-
presumptions of law may properly be classed the so-called k * conclusive " pre-
sumptions. 12 Many of the rules of substantive law may be paraphrased into
the language of evidence by the simple expedient of saying that the result
which the substantive law decrees shall follow the existence of a particular fact
is " conclusively presumed " to result from proof of it. Thus the rule that
stockholders are required by law to know the articles of incorporation of their
company may be put into the form of saying that they are conclusively pre-
sumed to do so. 13 Occasionally, the language of an ordinary presumption of
law is invoked for the same purpose. Thus the substantive law relating to
accident does not raise any presumption of
negligence on the part of the defendant. Top-
ping v. Great Northern R. Co., 81 Wash. 166,
142 Pac 425, L. R. A. 1915 F 1174 (1914).
The carrier by proving the damage was due
entirely to an act of God overcomes the prima
facie case of the shipper and the burden
shifts to the shipper to show that negligence
on the part of the carrier co-operated with the
act of God in bringing about the damage to
the shipment. St. Louis & San Francisco R.
Co. v. Dreyfus. 42 Okla. 401, 141 Pac. 773,
L. R. A. 1915 D 547 ( 1914). There is much
difference of opinion as to the burden of
proof where a carrier takes goods under a
limited liability contract that it is liable only
for negligence. Many modern cases hold that
siu-h a contract puts on the shipper the bur-
den of showing that the carrier was negli-
gent, but there is a strong minority which
holds that the carrier still has the burden
of proof. McGrath v. Northern Pac. R.. 121
Minn. 258, 141 N. \\ . 164. L. R. A. 1915 D
644 (1913). Presumption of carrier's negli-
gence from action, see note, Bender ed.. 95
N Y. 563.
6. The presumption of payment from lapse
of time applies even to a claim by the govern
ment. which can of course rebut the presump-
tion by affirmative evidence Chesapeake &
n Canal Co v C'nited States. 139 C. C. A.
4(Ki. 223 Fed. 926. L R. A. 1916 R 734 (1915).
Presumption of payment from lapse of time,
see note. Bender ed.. 94 X. Y. 387.
7. The presumption or prima facie case
made out by an er parte probate of a will
when contested becomes of no avail as soon
as evidence is introduced in opposition thereto.
Kilgore v. Gannon, 185 Ind. 682. 114 N. E.
446, L. R. A. 1917 E 530 (1916).
8. The court may presume from evidence
that an automobile involved in an accident
was owned by the defendant and driven by
his chauffeur that he was acting in the scope
of his employment but mere evidence that he
was the servant of the defendant is not enough
as this is no evidence that he was acting in
the scope of his employment. White Oak Coal
Co. v. Rivoux, 88 Ohio St. 18, 102 N. E.
302, 46 L. R. A. ( N. 6.) 1091 (1913).
9. Evidence that a wagon that ran over the
plaintiff was plainly marked with the name of
the defendant is prima facie evidence that it
belonged to him. Dennery v. Great Atlantic
& Pacific Tea Co., 82 N. J. L. 517, 81 Atl.
861, 39 L. R. A. (N. S.) 574 (1911).
10. The authorities generally state the doc-
trine that an employment upon a weekly or
monthly salary is presumed to be a hiring at
will and the burden of proving that the hiring
was for a year or other definite period is on
the party who claims it. Reasnor v. Watts
Ritter & Co.. 73 W Ya. 342. 80 S. E. 839,
51 L. R A. (X. S.) 629 H913).
11. 2 Chamberlayne. Evidence. 1160,
1161.
12. See Lvon v. Guild. 52 Tenn. (5 Heiak.)
175 (1871): State v. Pilling, 53 Wash. 464,
102 Pac. 230 (1909): U. S. v. Searcy. 26
Fed. 435 (1885). 2 Chamb.. Ev.. 1160.
13. Schickler v. Wash. Brewery Co.. 33
D. C. 35
^ 471,472 PsEuno-PijEsu.MPTioNS. 324
judgments may be stated in the language of presumption. 14 So also the legal
incapacity of a child under seven years of age to appreciate and avoid danger
may he said To be conclusively presumed. 1 "' On the other hand, these con-
clusive presumptions have been spoken of as if they were the true and typical
presumptipn of law. 1 ' 5
471. [Conclusive Presumptions]; Scope of Presumptions of this Class; Fic-
tions. 17 The conclusive presumption may also cover legal fictions. An ex-
ample is furnished in the rule pertaining to the jurisdiction of the federal
courts in actions based on the diversity of citizenship in which corporations are
concerned as parties. It was early held that a corporation was not a " citi-
zen " within the language of the constitution of the United States. 1 * lu this
case it will, it is said, be conclusively presumed that all stockholders of the
corporation are citizens of the state under the laws of which the corporation
came into existence, 1 '* even in cases where the corporation is organized under
the laws of the United States. 20
472. [Conclusive Presumptions] ; Lost Grant. 21 - In the law of real property.,
adverse use of an easement or other incorporeal hereditament for a period of
twenty years, raises a presumption that a grant of the same has been made in
accordance with the user and that the instrument has been subsequently lost. 22
This presumption of a grant *' can never fairly arise where all the circum-
stances are perfectly consistent with the non-existence of a grant. 23 A fortiori,
they cannot arise where the claim is of such a nature as is at variance with the
supposition of a grant." 24
\\'ken Conclusive. The presumption which, as thus stated, may properly
be regarded as a true presumption of law, has frequently been spoken of as a
conclusive presumption. 25 This is the prevailing rule in America by
14. The law presumes that a judgment, 704, 87 !S. W. 921 (1905) ; Carter v. Tinicum
until reversed, is a correct judicial deterniina- Fishing Co., 77 Pa. 310 (1875) ; Fletcher v.
tion of the rights of the parties. -Tenner v. Fuller, 120 I". S. 534, 7 S. Ct. (i(i7, 30 L. ed.,
Murphy, 6 Cal. App. 434, 92 Pac. 405 (1907). 757 (1887); 2 Chamb., Ev.,. 1163, n. 1,
15. Sullen berger v. Chester Traction Co., and cases cited.
33 Pa. Super. Ct. 12 (1907). A grant from the State to a party may be
16. Bow v. Allenstown, 34 X. H. 351, 365, presumed from uninterrupted possession for
69 .Am. Dec. 489 (1857) : Territory v. Lucero, twenty years. Caruth v. (iillespie, 109 Miss.
8 X. M. 543, 40 Pac. 18 (1806). 2 Chamb., 07!). OS So. 927 (1915).
Ev., 1161. 23. Lee Conservancy Board v. Button. 12
17. 2 Chamberlayne, Evidence, 1162. Ch. D. 383, 406, 409. C. A. 6 Ap. C'a. 685,
18. Muller v. Dows, 94 U. 8. 444 (1876). D. P. (1878).
19. Manufacturers, etc., Bank v. Baack, 2 24. Hicard v. Williams, 7 Wheat. (U. S. )
Abb. 1 1". S.i 23-2 (18/1); Muller v. Dows, 59, 109 (1822): Gardner v. ITodgsons, &c.,
supra; 2 Chamb., Ev., 1162, n. 2, and cases Brewery Co., A. C. 229, 240 (1903).
cited. , 25. Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879
20. Jd. (1886) : Chicago v. Chicago, etc.. K. Co.. 152
21.2 Chamberlayne, Evidence, 1163- Til 561. 38 X. E. 768 (1894): O'Brien v.
1163b. ' Goodrich, 177 Mass. 32. 58 X. E. 151 (1900) ;
22. Anthony v. Kennard Bldg. Co., 188 Mo. Chase v. Middleton, 123 Mich. 047. 82 X". W.
325
M ALICE.
analogy to the statutes of prescription relating to corporeal hereditaments.
The enjoyment of an incorporeal hereditament exclusive and uninterrupted
for a time sufficient to acquire title to the soil by adverse possession, affords a
conclusive presumption of a grant to be applied as a presumptio jiifis et de
jure. 29
Inference of Fact. Certain American courts do not agree to the conclu-
siveness or even as to the prima facie quality of the presumption to the effect
that the user shown to have existed was under a lost grant. They regard it
as simply an inference of fact of greater or less probative weight according to
the circumstances of the particular case. 27
473. [Conclusive Presumptions] ; Presumption of Malice in Libel. 28 An
illustration of the frequent process by which a rule of substantive law is
placed in the convenient phraeology of evidence, is found in the law of libel.
Thus, it is said that " the deliberate publication of calumny, which the pub-
lisher knows to be false, or has no reason to believe to be true, raises a conclu-
sive presumption of malice/' 29 A precisely equivalent expression would prob-
ably have been that in case of the deliberate intentional publication of de-
famatory matter the existence of actual malice is immaterial. 30 Or, more
shortly, that one who intentionally and deliberately publishes defamatory mat-
ter regarding a given individual is, under the law of libel, responsible to him
612 (1900) ; Lewis v. New York, etc., R. Co.,
162 X. Y. 202, 56 X. E. 540 ( 1000) : Bates v.
Sherwood, 24 Ohio Cir. Ct. 146 i 1903) : Car-
ter v. Tinicum Fishing Co., supra ; 2 Chamb.,
Ev.. 1163a, n. 1, and cases cited from 33
American jurisdictions.
26. The grounds of policy for the attain-
ment of which this rule of substantive law
has been evolved are cautiously stated by Sir
William Grant: "Presumptions do not al-
ways proceed on a belief that the thing pre-
sumed lias actually taken place. Grants are
frequently presumed, as Lord Mansfield says
[Eldridge v. Knott. 1 Cowp. 214 (1774)].
merely for the purpose, and from a principle,
of quieting the possession. There is as much
occasion for presuming conveyances of legal
estates-, as otherwise titles must forever re-
main imperfect, and in many respects unavail-
able, when from length of time it 1ms become
i 7ii possible to discover in whom the legal
estate if outstanding is actually vested."
Hillary v. Waller. 12 Vesey. Jr. 230. 2.") 2
(1S06). This statement of the law is cited
with approval in Fletcher v. Fuller. 120 U. S.
534 (1886).
27. For example, user of a fishery for a
long period was held to raise merely an in-
ference of fact, the weight of which should
have been submitted to the jury. Carter v.
Tinicum Fishing Co., supra. Where the ori-
gin of the easement is known a lost grant is
not to be presumed. C'lafin v. Boston, etc.,
R. Co., 157 Mass. 489, 32 X. E. 659, 20 L. R.
A. 638 (1892). " Such a question is a mixed
question of fact and law, to this extent, that
the facts being found, it is for the court to
advise the jury, whether in their nature and
quality they are sufficient to raise the pre-
sumption proposed the weight of the evidence
being for the jury." Valentine v. Piper. 22
Pick. (Mass.) 85, 94 (1839). 2 Chamb., Ev.,
1163b.
28. 2 Chamberlayne, Evidence. 1164.
29. 1 Greenl.. Ev., 18; Rocky Mountain
Xews Printing Co. v. Fridborn, 46 Colo. 440,
104 Pac. 956 (1909) : Cox. v. Strickland, 101
Ga. 482, 28 S. E. 655 ( 1897 ) : Sheibley v.
Xelson. 84 Xeb. 393, Izl X. W. 458 (1909):
Fry v. Bennett. 5 Sandf. ( X. V. > 54 (1851):
2 Chamb.. Ev., 1164, n. 1. and cases cited.
30. Smurthwaite v. Xews Pub. Co.. 124
Mich. 377. 83 X. W. 110 (U<)0): Paxton v.
Woodward, 31 Mont. 195. 78 Pac. 215. 107
Am. St. Rep. 416 (1904) : Cady v. Brooklyn
Union Pub. Co.. 51 X. Y. Supp. 19S, 23 Misc.
409 i 1898) : 2 Chamb., Ev., 1164, n. 2, and
cases cited.
474 PSEUDO-PRESUMPTIONS. 326
in damages. No actual malice is essential to the recovery of compensatory
damages. 31 The only apparent necessity for using the phraseology of presump-
tion is that it effectively conceals the administrative process by which a rule
in the law of libel requiring actual malice as a constituent element of liability
has been quietly judicially legislated into one which does uot. :!2
Express Malice. Where a privilege is claimed and established, the same
use of the terminology of evidence is employed in stating that the presumption
of malice from deliberate publication no longer obtains. " Where the words
spoken or written are shown to be within a confidential or privileged communi-
cation, the presumption of malice no longer exists; but the plaintiff in such a
case must show express malice, and cannot rely on the presumption of malice
which the law attaches in all other cases to the utterance or publication of the
words spoken or written." 33
474. [Conclusive Presumptions 1 ; Death of Attesting Witnesses in case of
Ancient Writings. a4 The so-called conclusive presumption of law may form
an alternative statement to a rule of procedure or practice. As a rule of pro-
cedure, the court does not require the production of the attesting witnesses in
proving the execution of a document thirty years old. 35 The rule of procedure
or practice is a common and satisfactory one. 30 This very sensible rule of con-
venience may be put into the form of saying that the subscribing witnesses to
writings thirty years old are conclusively presumed to be dead ; so that exe-
cution of such a deed, 37 will 38 or other document 39 need not be proved. The
question is one of procedure not of logic, and the phraseology of " presump-
tion " is, therefore, misleading. 40
31. C'hilders v. San Jose Mercury Printing, of a railroad, State v. Hesaenkamp, 17 Iowa
etc., Co., 105 Cal. 284, 38 Pac. 903, 45 Am. 45 (1864); Com. v. Bokeman, 105 Mass. 53
St. Rep. 40 (1894); Holmes v. Clisby, 121 (1870); or in cases charging malicious mis-
Ga. 241, 48 S. E. 934, 104 Am. St. Rep. 103 chief, Com. v. Williams, 110 Mass. 401
(1904) ; Prewitt v. Wilson, 128 Iowa 198, (1872) ; express malice must be proved.
103 N. W. 365 (1905); Faxon v. Jones, 176 Burden on plaintiff. In an action of
Mass. 206, 57 N. E. 359 (1900) : O'Brien v. slander if the occasion is privileged the bur-
Bennett, 76 N. Y. Supp. 498, 72 App. Div. den is on the plaintiff to prove malice. Doane
367 (1902) ; 2 Chamb., Ev., 1164, n. 3, and v. Grew, 220 Mass. 171, 107 N. E. 620, L. R.
numerous cases cited. A. 1915 C 774 (1915).
32. 2 Chamb., Ev., 1164. 34. 2 Chamberlayne, Evidence, 1165.
33. Dillard v. Collins. 25 Gratt. (Va.) 343 35. See Attesting witnesses, infra, 1100.
(1874). To the same effect, see Myers v. Sec also infra, 1103-1107.
Hodges, 53 Fla. 197, 44 So. :',57 (1907). Sec 36. Henthorne v. Doe, 1 Blackf. (Ind.) 157
also, 2 Chamb., Ev., ll<>4a. and cases cited. (1822) ; Clark v. Owens. IS N. Y. 43-1 (1858) ;
Malice in other Connections. The tech McReynolds v. Longenberger. 51 Pa. 13, 31
nical nature of the so-called conclusive pre- (1868): 2 Chamb., Ev., 1165, n. 2, and
sumption of malice as a statement of a propo- cases cited.
sition of substantive law, is made clear by 37. Green v. Chelsea, 24 Pick. (Mass.) 71
the fact that in all cases where the existence (1831 ).
of malice is a constituent or material fact, it 38. Jackson v. Blanshnn. 3 Johns (M". Y.)
must l>e proved as any other psychological fact 292, 3 Am. Dec. 485 (1808).
would be. For example, in an indictment for 39. McReynolds v. Longenberger. supra.
maliciously placing obstructions on the tracks 40. Settle v. Alison, 8 Ga. 201 (1850).
327
CONSEQUENCES OF CONDUCT.
-175
Need of C orroboration. It has been required by certain courts that some
evidence of the genuine character of a document be furnished to the tribunal
as a preliminary to the application of the presumption under consideration." 11
Effect of Circumstances of Suspicion. Where circumstances of suspicion
surround the genuine character of a document thirty years old, should the
evidence in the case explain and account for these circumstances to the satisfac-
tion of the presiding judge, he may admit the writing to the benefit of the rule
of procedure. 42
475. [Pseudo-Presumptions] ; Consequences of Conduct. 43 It is said that
each person is presumed to intend the natural consequences of his acts, 44
though not necessarily all the results which actually do follow from them,
though they might reasonably have been foreseen. In like manner, it has
been announced, with regard to acts embodied in documents, 45 that it will be
presumed that he who executes an instrument, whether by signing it himself
in the usual way, 40 or by means of his mark, 47 or through some one who is
directed to do so 48 understands the nature, force and effect, of the writing.
An obvious peculiarity of this so-called " presumption " is that it rs in no
sense an inference of fact. 49 It is apparently a paraphrase for the statement
of a very ordinary rule of substantive law to the effect that one who does an
41. Fairly v. Fairly, 38 Miss. 280 (1S59).
" If possession has accompanied the deed, for
that length of time, that is enough. If not,
other circumstances may be resorted to for the
purpose of raising the necessary presumption
in favor of the deed." Clark v. Owens, IS
N. Y. 434 (1858). Possession under the deed
in question by a predecessor in title has been
deemed sufficient. Burgin v. Chenault, 9 B.
Mon. (Ky ) 285 (1S4S).
42. Walton v. Coulson. 1 -McLean (U. S.)
120 (1831)
43. 2 Chamberlayne, Evidence. 1166,
1167.
44. Lane v. People. 142 111. App. 571
(1908); Ampersand Hotel Co. v. Home Ins.
Co., 115 N. Y. Supp. 480, 131 App. Div. 361
(1909) : Timm v. Bear. 29 \Yis. 254 (1871) :
2 Chamb , Ev.. 1166. n. 1. and cases cited.
Intent to Defraud. An insolvenf buyer
who knows at the time of his purchase that
his financial condition is such that it is and
*vill be impossible for him to pay for his
purchases is conclusively presumed to have
bought them with an intention not to pay for
them: and a persuasive legal presumption to
mat effect arises from the fact that such a
purchaser's affairs were in such a condition at
the time of the purchase of the property that
he could then have had no reasonable expec-
tation of paying for it. Gillespie v. Piles &
Co., 173 Fed. 886, 102 C. C. A. 120, 44 L. R. A.
(X. S.) 1 (1910).
45. Perrin v. U. S. Express Co., 78 N. J.
L. 515, 74 Atl. 462 (1909). The inference
may be rebutted. McKittrick v. Greenville
Traction Co., 84 S. C. 275, 66 S. E. 289
(1909).
46. Green v. Maloney. 7 Houst. (Del.) 22,
30 Atl. 672 (18841: Mattocks v. Young. 66
Me. 459 (1876) ; Androscoggin Bank. v. Kim-
ball, 10 Cush. (Mass.) 373 (1852) : 2 Chamb.,
Ev., 1166, n. 3, and cases cited
47. Lipphard v. Humphrey. 28 App. Cas.
(D. C.) 355 (1906): Doran v. Mullen. 78
111. 342 (1875).
48. Harris v Story, 2 E. D. Smith (X. Y.)
363 (1854).
49. Board of \Yater Com'rs of City of Xew
London v. Robbins & Potter, 82 Conn. 623,
74 Atl. 938 (1910): Clem v. State. 31 Ind.
480 MS69) : Thomas v. People. 67 X. Y. 218
(1876) : 2 Chamb.. Ev.. 1166, n. 6. and cases
cited. The happening of an event does not
in the least indicate that such was the re-
sult intended. State v. Hersom. 90 Me. 273,
38 Atl 160 (1807) . l~. S. v. Breese. 173 Fed.
402 (1900) : Xicol v. Crittenden, 55 Ga. 497
(1S75).
476 PSEUDO-PRESUMPTIONS. 328
act prohibited by law takes the risk of all the natural consequences of his act,
and cannot, except where intent is an element of the liability charged, 50 escape
responsibility for the consequences of his conduct by saying that they were
not embraced within the scope of his intention. So understood, the maxim is
undoubtedly correct.
Presumption of Law Repudiated. Not unnaturally certain courts have dis-
tinctly repudiated the existence of any presumption of law so fantastic as this.
It has been treated, so far as probative at all, as a mere inference of fact. 51
476. [Pseudo-Presumptions] ; Good Character. 52 It is a familiar rule of
procedure, elsewhere considered, 03 that unless and until the accused in a
criminal case shall open the issue of character, no inference shall be drawn
that he did the act in question because he had traits of character which would
permit or predispose him to do it. By a /wewdo-presumption, this procedural
rule has been paraphrased into language appropriate to the law of presump-
tions, as if, in short, instead of a rule of law it were a teaching of experience.
It is said, that until the defendant introduces evidence of good character the
law requires that the jury should not presume it to be bad. 54 A similar but
somewhat more accurate statement is to the effect that in the absence of evi-
dence on the subject of character, there is no presumption of law 50 as to whether
it shall be assumed to be good or bad 5r> and that, consequently, the whole matter
is one of fact to be determined simply by the inferences to be logically drawn
from the evidence. 57 In point of fact, moreover, there is no presumption
that it is either good or bad. 58
50. The rule that in certain criminal cases Y.) 609 (1850) : 2 Chamb., Ev.. 1168, n. 2,
the psychological fact of intent must be es- and cases cited
tablished by the prosecution beyond a reason- 55. 1037 et seq.; 4 Chamb., Ev., 3310
able doubt has been put into the rather con- et seq.
fusing form of saying that the presumption 56. Griffin v. State, 165 Ala. 29, 50 So 962
of law that a person intends the natural and (1909) ; Addison v. People, 193 111. 40f>, 62
usual consequences of his acts will prevail N E. 235 (1901)
unless the jury entertain a reasonable doubt 57. Danner v. State, 54 Ala 127. 25 Am.
whether such intention actually existed. Pep. 602 (1875^-. Addison v. People, supra.
Wells v. Territory. 14 Okl. 436, 78 Pac. 124 l.icens- to practic as an attorney does not
(1904) give rise to a nece-sarv infe eiice of good
51. 2 Cham!)., Ev . 1167: Madden v. State. character. Haynes v. State. 17 (*. 4ii."
1 Kan. 340. :!.-)() < 1803 ) : Stoke- v People. r>3 X ( 1855) .
Y. 104, 179 I 1873) : State v Sway/e. 3d 1 ;t 58. Cater v. State. 141 Ala. 10. 37 So 692
Ann. pt. 2, 1323 (1878). Courts which have (1904). Tt is probable that much of this pre
repudiated a presumption of malice from kill- sumption as to character is. in reality, an
in<r by the deliberate use of a deadly weapon offshoot of the more general " presumption of
have shared this view. Xj/pra. 468; 2 innocence.' 478 et srrj.. infra: 2 Chamb..
Chamb.. Ev., 1138 et seq Ev 1172 ft seq.; U. S. v Outhrie (Ohio
52. 2 Chamberlayne ; Evidence, llfiS. 1909), 171 Eed 528.
53. 1029 pt net/.: 4 Chamb., Ev., 3275 There is no presumption of good char-
ft spq. acter in favor of an accused which as would
54. State v. Dockstader. 42 Towa 436 a fact stands as witness for him. but the
(1870) ; State v. Smith. 50 Kan. 09. 31 Pac. presumption of a good character may not be
784 (1892); Ackley v. People, 9 Barb. (N. a basis of inference for the purpose of add-
329
KNOWLEDGE OF LAW.
477. [Pseudo-Presumptions] ; Knowledge of Law. 59 " Every one," it is
said, " is presumed to know the law." 60 It has been said in a criminal case
that the accused is thus ''presumed to know the law." 61 It has even been
authoritatively announced that a person is " conclusively presumed " to know
the law of the forum." 2
Instances of Application. Governmental regulations of a particular de-
partment, as that of the post office, 63 will be " presumed," it is said, to be
known to the persons employed therein so far as they are thereby affected.
A member of the general public is " presumed " to be acquainted only with the
public laws of the state 64 or country in which he resides or carries on busi-
ness. 65 One dealing with a city and living therein is presumed to have
knowledge of the ordinances enacted by and in force in that municipality. 06
Any person is " presumed " to have an accurate knowledge of the meaning of
the language which he employs orally or in writing, when entering upon a
definite legal relation. 07 On the contrary, no one is '' presumed " to know
the by-laws of an academy, 08 what a foreign law is 9 or how a domestic court
will construe a law of the forum. 70 Xegligence will not be imputed even to a
counsellor at law who, in giving advice, has adopted an erroneous but widely
ing weight to the presumption of innocence (1876); New York Cent. Ins Co. v. Kelsey,
or its logical resultant. One presumption
may not supplement or augment another
where one is but a part of the other. Dur-
ham v. State, 128 Tenn. 636, 163 S. W. 447,
51 L. R. A. (X. S.) 180 (1913).
Chastity. In an indictment for carnal
knowledge of a woman of previously chaste
character under a statute the state must
prove the previous chastity of the woman
and it is not enough to rely on a presump-
tion of chastity. Although there is a pre-
sumption of chastity in most cases this
gives way in a criminal case to the pre-
sumption of innocence. State v. Kelly, 245
Mo. 480, 150 S. \V. 1057, 43 L. R. A. (X. S.)
476 (1012). \
Presumption. So in a trial for seduction
under a statute making it a crime to seduce
a woman of moral character the court can-
not presume that the complainant is of
moral character but this must be proved like
any other fact in issue, as the proceeding
is purely statutory. State v. Holter, 32 S. D.
43. 142 X. W. 657, 46 L. R. A. (X. S.) 376
(1913).
59. 2 Chamberlayne, Evidence, 1169-
1171
60. Saxton v. Perry, 47 Colo. 263, 107 Pac.
281 (1910): Hayes v. Martz.f 173 Ind. 279,
89 X. E. 303, 90 N. E. 309 (1910) ; Detroit v.
Martin, 34 Mich. 170, 22 Am. Rep. 512
13 How. Pr. (X. Y.) 535 (1856); 2 Chamb.,
Ev., 1109, n. 1, and cases cited.
61. Brunaugh v. State, 173 Ind. 483, 90 X.
E. 1109 (1910).
62. State v. Corning State Sav. Bank, 136
Iowa 79, 113 X. W. 500 (1907); U. S. v.
Smith, 27 Fed. 854-857 (1886).
63. East Tennessee, etc., R. Co. v. White. 15
Lea (Tenn.) 340 (1885).
64. Wadsworth v. Board of Sup'rs of Liv-
ingston County, 115 X. Y. Supp. 8 (1909).
65. Keystone Driller Co. v. San Francisco
Super. Ct,, 138 Cal. 738, 72 Pac 398 (1903) ;
Hill v. Spear, 50 X. H 253, 9 Am. Rep. 205
(1870). But see Stedman v. Davis, 93 X. Y.
32 (1883).
66. Hope v. City of Alton, 116 111. App.
116, aff'd 214 111. 102. 73 X E. 406 (1905) ;
Galbreath v. Moberly, 80 Mo. 484 (1883);
City of Plattsmouth v. Murphy, 74 Xeb. 749,
105 X. \V. 293 (1905).
67. Long v. Xewman, 10 Cal. App. 430,
102 Pac. 534 (1909): Xewman v. Flowers'
Guardian. 134 Ky. 557. 121 S. W. 652 (1909) ;
People's Bank v. Hansbrough, 89 Mo. App.
252 H901).
68. Boyers v. Pratt, 1 Humphr. (Tenn.) 90
(1839).
69. King v. Doolittle, 1 Head (Tenn.) 77
(1858).
70. Brent v. State, 43 Ala. 297 (1869);
477 PSEUDO-PRESUMPTIONS. 330
accepted construction of a provision of law. 71 The more intricate and doubt-
ful the provision of law may be, the less will the court feel inclined to enforce
the rnaxim of jurisprudence made to do duty as a part of the law of evidence. 72
No Inference of Fact. Confessedly, the proposition that every one is pre-
sumed to know the law resto upon no basis of fact. 73 For the most learned
jurist or industrious judge to advance a serious claim to a knowledge of all
the law would appear farcical. 74 That which cannot be truly predicated of
the wisest and most skilled of mankind can scarcely be true, in any just sense
connected with the reality of things, in case of the most ignorant or debased.
" There is no presumption in this country," says Mr. Justice Maule, 75 "' that
every person knows the law ; it would be contrary to common sense and reason
if it were so."
Absence of Probative Force Demonstrated. In general, where it is neces-
sary to establish the fact of actual knowledge affirmative proof to that effect
must be introduced. 76 No assistance in so doing can be derived from the
pseudo-presumption itself. 7T
Real Nature of Presumption. The real nature of this so-called " conclusive
presumption *' is further shown by the limitations which have judicially been
placed upon its scope and effect.' 8 It becomes obvious that it is merely a
semi-rhetorical paraphrase for the statement that actual knowledge of the exist-
ence of a law is, by the rules of the substantive law, immaterial, when the
question arises as to the consequences of its violation, however important the
state of his actual knowledge may be in connection with the moral aspect of
his act. If one has seen fit to submit himself by residence or through doing
business therein to the laws of a jurisdiction, he will not be excused from
liability, in case he shall violate such law, by the mere fact of ignorance as to
what it is. 79 It is equally clear that he who joins a business or *municipal
Miller v. Proctor, 20 Ohio St. 442 (1870); the law was so certain that everybody knew
New York, etc., Gas Coal Co. v. Graham, 226 it; the misfortune is that it is so uncertain,
Pa. 348, 75 Atl. 657 (1910). that it costs much money to know what it
71. Marsh v. Whitmore, 21 Wall. (U. S.) is, even in the last resort."
178 (1874); Morrill v. Graham, 27 Tex. 646 76. Vogel v. Brown. 201 Mass. 261. 87
(1864). N. E. 686 (1909). See also Law v. Smith, 34
72. Miller v. Proctor, supra; 2 Chamb., Utah 394, 98 Pac. 300 (1908).
Ev., 1169a. 77. Martindale v. Falkner, supra; Queen
73. Ryan v. State, 104 Ga. 78, 30 S. E. v. Mayor of Tewksbury, L. R. 3 Q. B. 629
678 ( 1898) ; Lake Shore, etc.. R. Co. v. Rosen- ( 1868) : Black v. Ward, 27 Mich. 191 ( 1873) ;
zweig, 113 Pa. 519, 6 Atl. 64.1 (1886); 2 Chamb., Ev., 1170.
Marsh v. Whitmore, supra; 2 Chamb., Ev., 78. See Brent v. State, supra; Cutter v.
1170, n. 1, and cases cited. State, 36 N". J. L. 125 (1873) -. King v. Doo-
74. Jones v. Randall. 1 Cowper 37 U774K little, supra.
75. Martindale v. Falkner. 2 C. B. 706. 79. Grumbine v. State, 60 Md. 355 (1883):
719 (1846). Lord Mansfield in Jones v. Ran- Com. v. Emmons, 98 Mass. 6 (1867) ; U. S.
dall, supra, said, speaking of the contention v. Anthony, 24 Fed. Cas. No. 14,459, 11
that all the judges knew the laws, "as to Blatchf. (U. S.) 200 (1873); 2 Chamb., Ev.,
the certainty of the law mentioned ... it 1171, n. 4, and cases cited.
would be very hard upon the profession, if
331 INNOCEXCE. 478
corporation cannot relieve himself from the binding effect of their regulations,
duly adopted, on the ground that he did not understand what they were. That
is for him to find out at his peril. 80 In other words, the so-called presumption
of knowledge of law has precisely the same meaning as the equally familiar
maxim, Ignorantia leyis nemineni
478. [Pseudo-Presumptions] ; " Presumption of Innocence." 82 Few false
presumptions of law have so wide a vogue or have created so intolerable a
confusion in the law of evidence as the so-called *' presumption of innocence."
It is one invoked with extreme frequency, in civil 83 and still more often and
with more important effect in criminal, 84 cases. A phraseology commonly
employed in stating this pseudo-presumption of law is to the effect that in
criminal cases, a person accused of crime is presumed to be innocent until
proved to be guilty. 85 In like manner, it may be said, that since one accused of
crime has the right to stand mute, no presumption is raised against him if he
chooses to remain silent. 86
General Relations. The administrative assumption against wrongdoing or
in favor of legality and good faith 87 may well be regarded as the " presump-
tion of innocence " in civil cases ; while the so-called " presumption of inno-
cence " fills with approximate accuracy the place of an administrative assump-
tion in favor of legality and good faith in criminal cases. 88 The rule of
procedure in question is, however, persistently treated by certain courts as a
presumption of law. From this class, according to what appears to be the
proper definition of the term presumption of law, it is excluded by the all-
80. Balfour v. Ernest, 5 C. B. (N. S.) 601, trary. Krogh v. Modern Brotherhood, 153
28 L. J. C. P 170 (1859). Wis. 397, 141 N. W. 276, 45 L. R. A. (N. S.)
81. Topolewski v. Plankington Packing Co., 404 (1913).
143 Wis 52, 126 N. W. 554 (1910); Black 84. People v. Arlington, 131 Cal. 231, 63
v. Ward, supra. Pac. 347 (1900);. Fitch v. People, 45 Colo.
82. 2 Chamberlayne, Evidence. 1172. 298, 100 Pac. 1132 (1909); Raysor v. State,
83. Russell v. Baptist Theological Union, 73 132 Ga. 237, 63 S. E. 786 (1909); State v.
111. 339 (1874) ; State v. Scheve, 65 Neb. 853, Wilson, 130 Mo. App. 151, 108 S. W. 1086
91 X W 846, 93 X. W. 169, 59 L. R. A. 927 (1908) ; People v. American Ice Co., 120 X.
(1902) ; Grant v. Riley, 44 X. Y. Supp. 238, Y. Supp. 443 (1909) : 2 Chamb., Ev., 1172,
15 App Div 190 (1897); 2 Chamb., Ev., n. 2, and cases cited.
1172, n. 1, and cases cited. In a suit by the 85. State v. Luff, 24 Del 152, 74 All. 1079
wife of a son against the father for alienat- (1910) ; State v. West, 152 X*. C. 832, 68 S.
ing his affections the burden is on the plain- E. 14 (1910).
tiff to show that in advising his son to leave 86. People v. Emmons, 13 Cal. App. 487,
the plaintiff the father was acting through 110 Pac. 151 (1910).
malice as a parent has the presumption of 87. 495 et seq.; 2 Chamb., Ev.. 1219
good faith in his favor. Gross v. Gross, 70 et seq.
W. Va. 317, 73 S. E 961, 39 L. R. A. ( X". S.) 88. Thus it has been said that any pre-
261 (1912). Where death occurs vnder such sumption to be brought into play in con-
circumstances that it may or may not have struing a contract in a criminal case will be
been caused by suicide it will be presumed taken in favor of the accused. Keller v.
to have been unintentional and the burden State (Tex. Cr. App. 1905), 87 S. W. 669.
rests upon the other side to show the con-
479 PsEUDO-PliESOLI'TJOSS. 332
important fact that it possesses no basis of logical force, i.e., or probative
relevancy; and by the further characteristic that it persists in operation even
after a reasonably satisfactory amount of evidence has been introduced against
the accused.*"
479. [Presumption of Innocence] ; An Overestimated Rule. 90 Much stress yi
has frequently been laid, usually in a rhetorical way, upon this statement of a
legal rule as to the criminal burden of proof as if some logical weight were
being adduced in the prisoner's favor by reason of this so-called u presump-
tion." 2
Constitutional Right. It has even been suggested that it indicates a con-
stitutional right of one accused of crime, which is infringed when the legis-
lature sees fit to establish rules that certain facts shall give rise to a prima facie
inference as to the existence of another, and so, as is claimed, impair the logical
value of the presumption of innocence, by casting the burden of proof (burden
of evidence often being intended) 93 upon the accused. The validity of this
contention has, however, been steadily denied by the courts, 94 with rare ex-
ceptions. 05
Time Covered by Presumption. This presumption of innocence is stoutly
alleged to accompany the accused in verdict, not ceasing when the case is sub-
mitted to the jury. 96 It has been claimed to continue even when the accused
was proved to have been in the company of one who committed the crime, 97
or that the codefendants of the accused have already been convicted on a sep-
arate trial. All this is said, paraphrasing a rule of substantive law or pro-
cedure, not to displace the presumption of innocence. 98
An Anomalous Survival from an Earlier Age. The form of this pseudo-
presumption and vigor of the language in which it is frequently couched, to
say nothing of that by which it is maintained in the zeal of advocacy, are
reminiscent of the rigor of the criminal laws and procedure of early England
to which some slight reference is elsewhere made. 99
89. 395 et seq.; 2 Chamb., Ev., 93!) 94. Santo v. State, 2 Iowa 165. 63 Am. Dec.
et seq.; Hemingway v. State, 68 Miss. 371. 487 (1855); Com. v. Smith. 166 Mass. 370,
408 (1890) ; Hutto v. State, 7 Tex. App. 44 44 X. E. 503 (1896) ; State v. Kyle, 14 Wash.
(1879). See Bowman v. Little, 101 Md. 27:'>. 550, 45 Pac. 147 (1896): z Chamh., Ev.,
61 Atl. 1084 (1905) : 2 f'hamh.. Ev., 1172a, 1173, n. 4, and cases cited.
n. 3, and cast -, cited. 95. In re Wong Hane. 108 Cal. 680, 41
90. 2 Chamberlayne. Evidence, 1173. Pac. 693, 49 Am. St. Rep. 138 (1895).
91. Fra/ier v. Com. (Ky. 1908), 114 S. W. 96. People v. O'Brien, 106 Cal. 104, 39 Pac.
268; Gow v. Bingham, 107 N. Y. Supp. 1011. 325 (1895).
57 Misc. 66 (1907) : High v. State, 2 Okl. Cr. 97. State v. Farr, 33 Iowa 553 (1871).
161 (1909) : 2 Chamb., Ev., 1173, n. 1, and 98. Coxwell v. State, 66 Ga. 309 (1881).
cases cited. 99. 616, infra; 2 Chamb., Ev.. 1617.
92. " This is a common topic of declama- See discussion of this topic in 2 Chamb., Ev.,
tion." McKinley's Case, 33 St. Tr. 275 1173. See also. Bram v. U. S., 168 U. S. 532
<1817). (1897) ; Crane v. U. S., 162 U. S. 625, 646
93. 393; 2 Chamb., Ev., 936. (1895).
333 IXXOCENCE. 480
480. [Presumption of Innocence]; Meaning of Phrase. 1 All that is prop-
erly contained in the expression " presumption of innocence " may be restated
with a sufficient approximation to exactness in saying- that in a criminal case
it is the duty of the government, to prove every material allegation set forth
in the indictment against the prisoner beyond a reasonable doubt. 2 The " pre-
sumption " is, therefore, as has been said, a mere assumption of procedure re-
stating the burden of proof in criminal cases. 3 This of necessity continues
throughouut the entire trial, 4 without shifting, 5 upon the state as being the
party which has the affirmative of the issue. 6
'^cotttsh Law. It may be observed that the Scotch law follows the English
in construing the so-called presumption of innocence as a restatement of the
burden of proof in criminal cases, and lends no color to the contention of
certain American Courts, including the supreme court of the United States,
that it is something more than this. 7
A Double Aspect. Viewed in a slightly different way, the presumption of
innocence is the criminal counterpart of the presumption against fraud, ille-
gality, etc., in civil causes. It presents, mutatis mutandis, the double aspect
peculiar to the presumption against illegality. 8
No Inference of Innocence. There is, however, obviously in all this noth-
ing in the nature of an inference of fact that the accused is, in reality, an
innocent man quoad the charge against him. The general rule is all to which
he has a right. 9 Clearly, then, there is ho presumption of law in the matter,
that term being used as above defined, i.e., 1 " as denoting the procedural assump-
tion that a definite inference of fact in the substantive law has a prima facie
probative force.-
What Inertia Is Reasonable. The seriousness of the consequences to the
accused adds force to the so-called presumption of innocence. The affirmative
1. 2 Chamberlayne, Evidence, 1174- tablish illegality, fraud, wrongdoing and the
1175 like is on him who affirms its existence. In
2. State v. Lee (Del. Gen Sess. 1900), 74 criminal cases, this is the prosecution. -2
Atl. 4: O'Donnell v Com.. 108 Va 882. 62 S. Chamb., Ev ., 1174.
E. 373 (1908) ; Spick v. State, 140 Wis 104, 7. See discussion of McKinley's Case, 33
121 N. W. 664 (19U9); 2 Chamb., Ev., St. Tr. 275 '1817) and the case of Coffin v
U7 4> n . i United States, 156 U. S. 432, 15 S Ct. 394
3. 395: 2 Chamb., Ev.. 939 "The bur- 39 L. ed. 481 (1895). the dissenting opinion
den of proof is on the prosecutor All the in the former of which is apparently relied
presumptions of law independent of evidence upon by the Supreme Court of the United
are in favor of innocence; and every person States as endorsing the position adopted by
is presumed to be innocent until he is proved that tribunal. 2 Chamb.. Ev.. I174a.
guilty." Com. v. Webster. 5 Cuh. 'Mass.) 8. 2 Chamb.. Ev.. 1174b. See 478 :
295, 320 (1850). See also. 2 < hamb.. Ev , 495: 2 Chamb . Ev.. 1172a: 1222.
1174, n. 2, and authorities cited. 9. Hawes v State, 78 Ala. 37. 7 So. 302
4. People v. O'Brien, supra. (1889) : State v. Loper. 148 Mo. 217. 49 S. W.
5. 395: 2 Chamb, Ev , 039 1007 ilRflS) : 2 Chamb., Ev.. 1174c.
6. ft is a ruling as to pleading in crim- 10. 444 et seq.; 2 Chamb., Ev., 1082,
inal eases, analogous to that asserting that n. 3, 1085, ns. 1 et seq.
in civil oases the burden of evidence to ea-
481,482 PSEUDO-PEESUMPTIONS. 334
ease will be scrutinized more carefully, i.e., the inertia n of the court materially
increases.
No Inference of Fact. This so-called " presumption of innocence " is, it
would thus appear, based upon no inference of fact. 12 Clearly it is not a
proposition of experience that persons accused of wrongdoing in either civil
or criminal proceedings are, in point of fact, generally innocent of the crimes
charged. 1 "
481. [Presumption of Innocence] ; Valueless as Affirmative Proof. 14 Treat-
ing the presumption of innocence as a logical inference, it would be natural
and useful to offer it as affirmative proof of some fact, e.g., chastity. 15 When
so tested the %; presumption " is found to have a procedural but no logical value.
It has no probative force or weight. It provides a shield, but no sword, to the
party in whose favor it is said to lie, viz., the defendant in a particular pro-
ceeding. 10 This circumstance will be seen to be of marked importance in
connection with the so-called conflict of presumptions. 17
4P2. [Presumption of Innocence] ; Treatment of Prisoners in Judicial Ad-
ministration. 18 In case of a serious criminal charge, it is customary, follow-
ing the dictates of experience and common sense, to proceed upon the basis
that the one accused of a crime is guilty. For example, as soon as an indict-
ment is found, the question of bail arises. Xo " presumption of innocence "
appears at this stage. " After bill found, a defendant is presumed to be
guilty to most, if not all purposes, except that of a fair and impartial trial
before a petit jury. This presumption is so strong that, in the case of a capital
felony, the party cannot be let to bail." 19 There can be no reasonable ques-
tion but that, as a matter of experience, this logical inference of guilt from
the finding of an indictment is amply justified. 20
11. 409, supra; 2 Chamb., Ev., 993. Fed. 149, L. R. A. 1915 D 1070 (1914).
See 2 Chamb., Ev., 1174d. 14- 2 Chamberlayne, Evidence, 1175a.
12. Harrison v. State, 144 Ala. 20, 40 So. 15. People v. O'Brien, 130 Cal. 1, 62 Pac.
568 (1906) ; State v. Linhoff, 121 Iowa 632, 297 (1900) ; Com. v. Whitaker, 131 Mass. 224
97 N. W. 77 (1903); Hammond v. Hammond (1881); 2 Chamb., Ev., 1175a, n. 1, and
(Tex. Civ. App. 1906), 94 S. W. 1067. (1881) ; State v. McDaniel, 84 N. C. 863
13. Still less, does a connection exist be- cases cited.
tween innocence and an indictment for a 16. West v. State, 1 Wis. 209 (1853) ; Mc-
criminal offence. Ex parte Alexander, 59 Arthur v. State, 59 Ark. 431, 27 S. W. 628
Mo. 598, 21 Am. Rep. 393 (1875) ; 2 Chamb., (1894).
Ev., 1175a, n. 2. 17. Infra, 496 et seq.; 2 Chamb., Ev.,
Distinguished from Character. What is 1224 et seq.
known as the presumption of innocence is not 18. Chamberlayne, Evidence, 1175b.
to be applied to a presumption of good char- 19. State v. Mills, 2 Dev. (X. C. ) 421
acter as the state may meet the presumption (1830). To the same effect, see State 'v.
of innocence but may not meet that of good Madison County Court, 136 Mo. 323 (1896) :
character for until the defendant has first Ex parte Ryan, 44 Cal. 555 (1872); 2
introduced evidence on the subject of his good Cliamb., Ev.. 1175b, n. 1, and cases cited,
character the state may not enter the field. 20. 2 Chamb., Ev., 1175b. "Law pre-
Price v. United States, 132 C. C. A. 1, 218 sumes that the prisoner is innocent until he
335 INNOCENCE. 483-485
483. [Presumption of Innocence] ; Weighing the Presumption of Innocence.
" A legal presumption is a rule of law a reasonable principle, or an arbi-
trary dogma declared by the court. ... It could not be weighed as evi-
dence." Presumption of innocence, it would thus appear, is incapable of
being weighed by the jury in any scales of reason. The rule of substantive
law or of procedure cannot itself be weighed. There is no inference of fact,
proposition of logic or experience, back of it which can. Where an assump-
tion is devoid of any inference of fact in its support, to weigh it against evi-
dence is an act impossible of performance. 22
484. [Presumption of Innocence] ; Other Views. 2 - While the great weight
of authority excludes the presumption of innocence from the presumptions of
law, the courts are not unanimous in so holding. It cannot be questioned that
there is authority from tribunals of high standing to the effect that the pre-
sumption of innocence is based upon an inference of fact to the benefit of
which a person charged with crime or wrongdoing is entitled. 24 In other
words, there is an inference of fact, possessing evidentiary value which, in a
criminal case, remains in favor of the accused even after reasonably sufficient
evidence has been introduced as to his guilt.
485. [Pseudo-Presumptions] ; Presumption of Survivorship. 25 Unique,
among pseudo-presumptions, is that which regulates judicial action as to whom
may be taken to have survived longest among those who have perished in a
common accident or calamity 2e where there is no evidence on the point. It is
said that where several persons perish in a common disaster and no evidence
is furnished as to which of these persons survived the others there is a pre-
sumption of law that they all perished at the same time. 27 This, if it means
anything, must be understood as equivalent to saying that there is, in reality,
no presumption of law at all, under such circumstances, as to the survivorship
is found guilty, but it were well to wager that the Supreme Court of the United States
four to one that the jury will be satisfied of itself does not seem, in later cases, to have
his guilt, fn 188,3 there were 11,347 persons considered that this proposition that the
found guilty against 2,723 found not guilty." presumption of innocence constitutes a piece
21. Lisbon v. Lyman, 49 N. H. 553, 563 of evidence is to be seriously and carefully
(1870). followed. See Allen v. U. S.. 164 U. S. 492,
22. See 2 Chamb., Ev., 1175c, and notes 500 (1896): Coffin v. U. S.. 162 U. S. 664
for a discussion of this question. (1896); Agnew v. U. S., 165 U. S. 36, 51
23. 2 Chainberlayne, Evidence, 1176. (1897).
24. State v. Clark, .83 Vt. 305. 75 Atl. 534 25. 2 Chamberlayne, Evidence, 1177-
(1910); Childs v. Merrill, 66 Vt. 302, 29 1183.
Atl. 532 (1894); Coffin v. U. S. 156 U. S. 26. Grand Lodge A. O. U. W. of Washing-
432 (1894) See also, U. S. v. Davis. 160 U. ton v. Miller, 8 Cal. App. 25. 96 Pac. 22
S. 469 (1895): Cochran v. U. S.. 157 U S. (1908).
286 (1895): North Carolina v. Gosnell, 74 27. Kansas Pac. R. Co. v. Miller. 2 Colo.
Fed. 734 ( 1896) : 1 Greenleaf, Ev., 34. See 442 (1874) : Balder v. Middeke. 92 111. App.
discussion of Greenleaf. McKinley's Case, the 227 (1900): Walton & Co. v. Burchel. 121
Coffin Case in Chamb., Ev.. 1176. 1176a. Tenn. 715, 121 S. W. 391: 2 Chamb., Ev.,
1176b, 1176c, 1176d, wherein it is observed 1177, n. 2, and cases cited.
485 PSEUDO-PRESUMPTIONS. 336
and that he who desires to show that a particular one of the persons involved
outlived any of the others, has the burden of evidence to prove it to a prima
facie extent. 28
Distribution of Funds, etc. Certainly until survivorship i^ shown the
action of the court in dealing with a fund or other res will take place as if no
survivorship existed, i.e., as if all had actually perished at the same moment. 2U
No Presumption of Law. Xo inference of fact in connection with the
question of survivorship is sufficiently cogent, frequent and uniform as to war-
rant making it the subject of a procedural rule of the nature of a presumption
of law. 30 There is no presumption of law, properly so called in the matter. 31
It will not be presumed as matter of law, that one of several persons survived
the others. 32
Probative Facts. The inferences of fact which may properly guide the
judgment of the court in dealing with the question of survivorship are either
deliberative or directly probative. Treating first of the probative facts, for
example, A may have been seen alive at a time when B may safely be inferred
to have been dead. 33 Thus where A is shown to have shot B and then killed
himself, the fact that this second injury was of such a nature as to cause in-
stant death, while B was still warm for many hours afterwards, 34 may settle
the controversy in favor of the heirs of B. In case of a number of persons
burned to death in a building it will be inferred that an old man in whose
room a fire probably originated died before a middle aged man or children in
whose direction the flames were burning. 35 As a matter of proof, the difficulty
is to discover sufficient evidence to establish a prima facie case, i.e., one on which
a court or jury would be justified as a matter of reason in acting. 36
28. Johnson v. Merithew, 80 Me. Ill, 13 supra; Males v. Sovereign Camp (Tex. 1903),
Atl. 132, 9 Am. St. Rep. 162 (1888) ; U. S. 70 S. W. 108 (1903) ; 2 Chamb., Ev., 1179,
Casualty Co. v. Kacer, 169 Mo. 301, 69 S. W. n. 3, and cases cited.
370, 92 Am. St. Rep. 641 (1902) ; St. John 32. Smith v. Croom, 7 Fla. 81 (1857) ; Sup.
v. Andrews Institute for Girls, 102 N. Y. Council R. A. v. Kacer, 96 Mo. App. 93, 69
Supp. 808, 117 App. Div. 698: 2 Chamb., b. W. 671 ( 1902) ; and cases cited in last two
Ev., 1177, n. 3, and cases cited. notes; 2 Chamb., Ev., 1179, n. 4. and cases
29. Middeke v. Balder, 198 111. 590, 64 N. E. cited.
1002, 59 L. R. A. (N. S.) 653 (1902), aff'g 33. In re Mclnnes, 104 X. Y. Supp. 147, 119
judg. 98 111. App. 525; In re Lott. 121 N. Y. App. Div. 440, rev'g 100 N Y Supp. 440, 50
Supp. 1102, 65 Misc. 422 (1909): Young Misc. 88 (1907); St. John v. Andrews Insti-
Women's Christian Home v. French, 187 U. S. tute for Girls, supra; 2 Cliamb., Ev., 1180.
401, 23 S. Ct. 184, 47 L. ed. 233 (1901) ; 2 n. 2, and cases cited.
Chamb., Ev., 1178, n. 1, and cases cited. 34. Broome v. Duncan (Miss. 1901), 29 So
30. Cowman v. Rogers, 73 Md. 403. 21 Atl. 394.
64, 10 L. R. A. 550 (1890): Dunn v. New 35. Ehle's Estate, 73 Wis. 445. 41 N. W.
Amsterdam Casualty Co., 121 N. Y. Supp. 627 (4889).
686 (1910) ; Hilderbrandt v. Ames, 27 Tex. 36. In re Ridgway, 4 Redf. Surr. (N. Y)
Civ. App. 377, 66 S. W. 128 ( 1901) ; and cases 226 (1880): Pell v. Ball, 1 Cheve (S. C.)
generally cited in last note; 2 Chamb., Ev., Ch. 99 (1840) ; Schaub v. Griffin, 84 Md.
1179, n.'l. 557, 36 Atl. 443 (1897).
31. Dunn v. New Amsterdam Casualty Co.,
337 SURVIVORSHIP. 485
Deliberative Fads. Certain general characteristics of the persons involved
in the accident, rather of a deliberative than a probative nature are still en-
titled to weight, seldom determinative, in judging of the probative facts them-
selves. A person of adult strength and matured judgment may, as a matter
of probability, fairly be regarded as more -apt to resist a severe and long con-
tinued physical strain 37 and better able to take advantage of such opportunities
as are afforded for protecting and prolonging life than a child of tender years
or an aged person of impaired bodily and mental faculties. In like manner,
a man is likely to outlive a woman. 38 If death is by drowning, an experi-
enced swimmer may well be taken to have survived one who was entirely un-
acquainted with the accomplishment. 39
Civil Law. Much of the confusion attending the treatment of this subject
will be found to have its origin in an attempt to transfer to the common law
the view point and administrative expedients of the civil law, which abounds
in a multiude of so-called presumptions, to which, although apparently mere
inferences of fact of indeterminate value, a certain definite probative weight is
attached, such as the inferences of fact to which reference is above made, that
strength will survive weakness, men outlive women, resourceful persons have
an opportunity of survival not afforded to ill trained minds and the like. 40
Certain American states, notably California 41 and Louisiana, 42 in which the
doctrines of the civil law have a strong influence, continue in their statutory
enactments, 43 to follow the rules of the Roman law or the later enactments of
the continental Codes.
37. Smith v. Croom, supra; Cove v. Leach. ols, 75 N. Y. 78, 31 Am. Eep. 424 (1878) ; 2
8 Mete. (Mass.) 371. 41 Am. Dec. 518 <1844). Chamb., Ev., 1182, n. 2, and cases cited.
38. Moehring v. Mitchell, 1 Barb. Ch. (N 41. Hollister v. Cordero, 76 Cal. 640, 18
Y ) 264 (1846). Pac. 855 (1888).
39. Fuller v. Linzee. 135 Mass. 468 (1883). 42. Langles' Succession, 105 La. 39, 29 So.
still, there is no presumption of law in the 739 (1900).
matter. 43. Cal. Code Civ. Proc., 1963; La. Civ.
40. Smith v. Croom, supra; Newell v. Nich- Code, arts. 936-939.
CHAPTER XVI.
ADMINISTRATIVE ASSUMPTIONS.
Administrative assumptions, 486.
presumptions of law contrasted, 487.
identity of person from similarity of name, 488.
property from possession, 489.
regularity, 490.
order of events, 491.
judicial proceedings, 492.
public officers, 493.
relation between foreign and domestic law, 494.
wrongdoing not assumed, 495.
Conflict of presumptions; civil cases, 496.
criminal cases; knowledge of law, 497.
presumption of innocence. 498.
486. Administrative Assumptions. 1 The administrative assumption as-
sumes, for procedural purposes, most often that of expediting trials, 2 that a
particular fact has been prima facie established or will be assumed to exist.
It is taken for granted that facts which present no features of inherent sus-
picion have come into existence under conditions of regularity, the assumption
continuing until evidence is introduced on the point covered by it. 3 It is
sound administration, even where the ruling is not with regard to a matter of
pleading, 4 to assume that things apparently regular have been properly done;
in other words that the party alleging irregularity, fraud or illegality has the
burden of evidence to show it.
487. [Administrative Assumptions] ; Presumptions of Law Contrasted. 5
Each of the two forms of procedural assumption, the assumption of adminis-
tration and the presumption of law, operates only until affirmative evidence is
introduced on the subject. They present also the common features of shifting
the burden of evidence/' a circumstance which probably accounts for the per-
sistent manner in which they are confused. 7 Chief among the characteristic
1. 2 Chamberlayne. Evidence, 1184. ( 1893) ; 2 Chamb.. Ev., 1184, n. 2, and cases
2. 304 et seq.; 1 Chamb., Ev., 544 cited.
et seq. 4. Infra, 487: 2 Chamb., Ev., 1186.
3. Robertson v. Alameda Free Public Li- 5. 2 Chamberlayne, Evidence, 1185
brary, etc., 130 Cal. 403. 69 Pac. 88 (1902): 1186.
Morrill v. Douglass. 14 Kan. 293 (1875) ; Be- 6. Supra, 403; 2 Chamb., Ev., 971.
fay v. Wheeler, 84 Wis. 135, 53 N. W. 1121 7. The idea apparently is, that as a pre-
333
339 SIMILARITY OF XAME. 488
differences between assumptions of administration and the presumption of law
is the circumstance that while the presumption of law is a rule in a particular
branch of the substantive law, the assumption of administration is merely a
general rule of convenience in judicial action applicable to all subjects alike.
The second li'ujhly Important distinction lies in the circumstance that while
the presumption that a given inference of fact establishes a prima facie case,
has a definite probative quality, an assumption of administration may
simply take for granted the existence of a fact, there being no necessary logical
inference whatever in the matter. It may 'be added that the presumption of
law, as is elsewhere noticed, 8 is. and to a still greater degree has been, in fur-
therance of the administrative canon of giving certainty and effectiveness to
substantive law. 9 The assumption of administration, on the contrary, is in-
tended for the expediting of trials. 10
488. [Administrative Assumptions] ; Identity of Person from Similarity of
Name. 11 It is a convenient assumption of administration that, in the absence
of iimerent improbability, or proof to a contrary effect, 12 the same name at all
times designates a given person 13 or thing. 14 This assumption is particularly
valuable in connection with the proof of title, 15 or other matters in which use
is made of documentary evidence. A party having the burden of showing an
identity in persons may well ask the presiding judge provisionally to assume
identity from similarity and, a fortiori from identity of name. 16
Assumption Displaced. It is said that this assumption of administration ,
may be overcome by a conflicting presumption of law, as that "of innocence"
sumption of law shifts the burden of evi- 18 N. Y. 86 (1858); Cross v. Martin, 46. Vt.
dence, every ruling of the court which shifts 14 (1873) ; 2 (Jhamb., Ev., 1187, n. 2, and
this burden must necessarily be a presumption oases cited,
of law. 14. Wilbur v. Clark, 22 Mo. 503 (1856);
8. 8upra, 445; 2 Chamb., Ev., 1086. Barrow v. Philleo, 14 Tex. 345 (1855);
9. Supra, 305: 1 Chamb., Ev., 556. Stahl v. Ertel, 62 Fed. 920 (1893) ; 2 Chamb.,
10. .S'f/pro, 304 et seq.; 1 Chamb., Ev., Ev., 1187, n. 3, and cases cited.
544 et seq. 2 Chamb., Ev., 1185. See dis- 15. Graves v. Colwell, 90 111. 612 (1878) ;
cussion of Inferences of Fact Compared and Oilman v. Sheets, 78 Iowa 499, 43 X. W.
Rulings as to the Burden of Proof, 2 Chamb., 299 (1889) ; Geer v. Missouri Lumber, etc.,
Ev., 1185a. 1186. Co., 134 Mo. 85, 34 S. W. 1099, 56 Am. St.
11. 2 Chamberlayne, Evidence, 1187- Rep. 489 (1805): People v. Snyder. 41 X. Y.
llOla. 397 (1869) ; 2 Chamb., Ev., 1187, n. 4, and
12. Garwood v. Garwood. 29 Cal. 514 cases cited.
(1866) . Clark v Pearson, 53 Ga. 496 (1874) ; IP. No necessary inference of fact. When
Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601 evidence contrary to the truth of the assump-
(1897); I.iscomb v. Eldredpe. 20 R. I 335, tion is introduced, there is said to be no
38 Atl. 1052 (1897) : 2 Chamb., Ev., 1187, presumption in the matter. McMinn v. Whe-
n. 1. and cases cited. Ian. 27 Cal. 300. 317 (1865) : Graves v. Col-
13. Hendricks v. State, 26 Tnd. 493 (1806): well, supra: Jackson v. Goes. 13 Johns. (X.
Grindle v. Stone. 7 Me 176. 3 Atl 183 Y.) 518. 7 Am. Dec. 399 (1816): 2 Chamb.,
(1886); 'Morris v McClary. 43 Minn. 346. Ev., 1187, n. 5, and cases cited.
46 X. W 7 . 238 (1890) ; Hatcher v. Rocheleau,
488
ADMINISTBATIVE ASSUMPTIONS.
340
so called, 17 or by inferences arising from the validity of a contract. 18 This
displacement of the assumption is a necessary one. 10 The assumption, more-
over, is made only when the name is to be applied to a particular person in-
volved. 2 "
Inferences of Fact. While, as has been said, 21 the administrative as-
sumption that a given name used on different occasions indicates the same
person does not, necessarily, rest upon any inference of fact, it may well do
so. C'ertaiu affirmative or inh'rmative considerations may even be intrinsic
in the name itself; others are extrinsic to it. 22
Corroborative. Corroborative inferences of fact may be intrinsic to the
name. 23 Where two names are presented to the consideration of the court, the
inference that they designate the same individual is strong in proportion as
the difference between. the two are slight. 24 Conversely, the inference of iden-
tity is weak as the points of difference between the two -names are numerous
and marked. 25
Extrinsic. Facts extrinsic to the name may found corroborative infer-
ences of fact. 26 Facts of all kinds may corroborate the inference. Thus the
document in question may have been produced from such appropriate custody
as to be reinforced in probative effect by that circumstance. 27 The handwrit-
ing of two persons of the same or similar name may be so nearly alike in ap-
pearance as to confirm the inference. 28 That the person, whose name a given
17. Wedgwood's Case, 8 Me. 75 (1831).
See also, Com. v. Briggs, 5 Pick. ( Mass. ) 429
(1827); Bogue v. Bigelow, 29 Vt. 179, 183
(1857) ; et seq., supra; 2 Chamb., Ev.,
1172 et seq.
18. Cooper v. Poston, 1 Duv. (Ky.) 92, 85
Am. Dec. 610 (1803).
19. A mere ruling for administrative con-
venience naturally gives way before a rule of
positive law, like the presumption of inno-
cence or even when opposed by an inference of
fact. See next section. 2 Chamb., Ev.,
1188.
20. If such name be a common one in the
vicinity or if it be shown that there is more
than one person to whom the name may prop-
erly be applied, there can be no assumption
as to the person to whom the name should be
applied by the jury. People v. Wong Sang
Lung, 3 Cal. App. 221, 84 Pac. 843 (1906).
21. Supra, n. 13; 2 Chamb.. Ev., 1187, n.
5.
22. 2 Chamb., Ev., 1189.
23. A name leads to an inference that it
can properly be applied only to a single in-
dividual, i.e.. warrants an assumption of
identity, in proportion as it is unusual ( Se-
well v. Evans. 4 Q. B. 626, 3 G. & D 604, 7
Jur. 213, 12 L. J. Q. B. 276, 45 E. C. L. 626
(1843) elaborate or otherwise distinctive.
But see, apparently to the contrary effect,
Mooers v. Bunker, 29 X. H. 420, 431 (1854).
24. Loveman v. Birmingham Ry. L. & P.
Co., 149 Ala. 515, 43 So. 411 (1907)
C'Schuler" for ' Sohulern ") ; Einstein v.
Holladay-Klotz Land & Lumber Co., 132 Mo.
App. 82, 111 S. W. 859 (1908) (initials
" J. W." & " W. J.") : 2 Chamb., Ev., 1190,
n. 3, and cases cited.
25. Spreyne v. Garfield Lodge Xo. 1 of U.
Slav. Benev. Soc., 117 111. App. 253 (1905);
Creenberg v. Angerman, 84 X. Y. Supp. 244
(1903).
26. Bennett v. Libhart, 27 Mich. 489
(1873) : Hoffman v. Metropolitan L. Ins. Co.,
119 X. Y. Supp. 978, 135 App. Div. 739
(1909); 2 Chamb., Ev., 1190, n. 5, and
cases cited.
27. 2 Chamb.. Ev., 1190. n. 6. and cases
cited. Bailie v. Western Live Stock & Land
Co. (Tex. Civ. App.), 119 S. W. 325 (1909).
28. 2 Chamb., Ev., 1190, n. 7, and cases
cited.
341 SIMILARITY OF NAME. 488
designation is claimed to be, promptly answered when addressed by it 29 and
other facts circumstantially probative may furnish evidence in the same direc-
tion.
Infirmative. On the other hand, the probative force of the inference of
identity from similarity of names is greatly diminished by introducing facts
inconsistent with the truth of the assumption. 30
Extrinsic. Extrinsic facts, as well as those intrinsic in the name itself,
may tend to destroy the truth of the assumption, removing any element of
probative force from the inference of fact upon which it may have been based,
and, very possibly, establishing that the persons designated were, in fact, dif-
ferent individuals. For example, it may be shown that while the two per-
sons have been assumed, on account of their similarity or identity of name to
be the same person, they were actually employed at the time in different occu-
pations, or filled different stations in life. 31
Initials. Where the surname and given name employed on the two occa-
sions are identical a2 the inference of identity arises. Where the same initial
takes the place of the given name, the inference of identity is normally weaker. 33
The identity of family name and similarity of initials is not sufficient to
create a prim a facie inference. 34 On the contrary, where the same family
name and surname are used on two occasions insertion in both of the same
middle initial adds force to the inference of identity. 35
Dissimilarity. The presence of two middle initials consisting of a different
letter tends, very strongly, to negative the inference of identity. 36 The same
result by no means follows where one name has a middle initial and the
other has none. 37
29. Garrett v. State, 76 Ala. 18 (1884); 33. Pearce v. Albright, 12 N. M. 202, 76
2 Chamb., Ev, 1190, n. 8, and cases cited. Pac. 286 (1904).
30. Stevenson v. Murray. 87 Ala. 442, 6 So. 34. Bennett v. Libhart, svpra ; Kane v.
301 (1888); Mode v. Beasley, 143 Ind. 306, Sholars (Tex. Civ. App. 1905), 90 S. W 937.
42 N. E. 727 i '1895) : 2 Chamb., Ev., 1191, n. See also. \Vhite v. Bates, 234 III 276, 84 N.
1, and cases cited. E. 906 (1908) : 2 Chamb., Ev., 1191a, n. 3,
31. Richardson v. People, 85 111. 495 and cases cited.
(1877): Ellsworth v. Moore, 5 Iowa 486 35. Paxton v. Ross, 89 Iowa 661, 57 N. W.
( 1857) ; 2 Chamb., Ev., 1191, n. 3, and cases 428 (1894).
cited. It may appear, in the same way, that 36. Ambs v Chicago, etc., R. Co.. 44 Minn
the use of the similar or identical name 260. 40 N. W. 321 (1890) On the other
occurred at intervals so widely separate in hand, the middle initial has been held to be
point of time as to render it highly improb- immaterial Alabama Steel & Wire Co v.
able that the same person could have been Griffin (Ala. 1907 K 42 So. 1034; Illinois
present on both occasions. Sitler v. Gehr. Cent. R Co. v. Hasenwinkle, 232 111. 224. 83
1(1.") Pa 577. 51 Am Rep. 207 (1884) It N. E. 815 (1908) See also 2 Chamh., Ev..
has been said that slight evidence is needed 1191a. n. 5. and cases cited
to overcome the assumption of identity of 37. Hunt v. Stewart. 7 Ala. 525 (1845);
person from identity or similarity of name. State v. Loser (Iowa 1905). 104 N T . W 337
Morris v McClary. 43 Minn. 346. 46 N. W. See, however, Lucas v. Current River Land &
._>3S (1890). Cattle Co., 186 Mo. 448, 85 S. W 359 (1905)
32. Sperry v. Tebbs. 10 Ohio Dec. (Re-
print) 318/20 Cine L. Bui. 181 (1888).
| 489,490
ADMINISTRATIVE ASSUMPTIONS.
342
489. [Administrative Assumptions] ; Property from Possession. 35 * " Men
generally own the property they possess/' 39 In certain connections, there-
fore, possession of cither real 4 " or personal 41 property, will be assumed to
indicate the owner. In order that the assumption should be made or the in-
ference of fact arise, it is essential that the possession should be consistent,
however, with the fact of ownership. 42 The presumption or inference is, ao
a matter of course, rebuttable. 43
490. [Administrative Assumptions] ; Regularity. 44 Presumptions of regu-
larity, so called, are in many instances, assumptions of administration; al-
though, as has been seen, 45 an inference of fact may also be present. A.^ is
usual in such cases, 40 the rule has been put into the alternative forms of saying
either (a) that there is no presumption of official irregularity 47 or, (b) that
he who alleges irregularity has the burden (of evidence) to prove it. 48 Such
an inference of fact may be corroborated by any evidence, as, for example,
Jong failure to complain of the existence of any irregularity. 49
No Probative Force. While an inference of fact may be present, in gen-
eral, what is presented is a mere assumption entirely devoid of probative
force. 50 This conclusively appears when the attempt is made to draw logical
38. 2 Chamberlayne, Evidence, 1192.
39. McEwen v. City of Portland, 1 Or. 300
(I860).
40. Jackson v Waltermire, 5 Cow. (N. Y.)
299 (1826); Ward v. Mclntosh, J2 Ohio St.
231 (1861); Bradshaw v. Ashley, 180 U. S.
59, 21 S. Ct. 297, 45 L. ed 423 (1901); 2
Chamb., Ev., 1192, n. 2, and cases cited.
41. Amick v. Young, 69 111. 542 (1873);
Miller v. Marks, 20 Mo. App 360 (1886);
Jennings v. Brooklyn Heights K. Co., 106 N.
Y. Supp. 279, 121 App Div. 587 (1907);
Wausau Boom Co. v. Plumer. 35 Wis. 274
(1874) : 2 Chamb.. Ev., 1102, n. 3, and cases
cited The a? sumption has been spoken of
as merely a presumption of fact, and charac-
terized a? being " the lowest species of evi-
dence.'' Rawley v. Brown, 71 N. Y. 85
(1877)
42. Where the property is apparently that
of another no inference arises to the effect
stated. Gregg v Mallett. Ill N. C 74. 15
S. E. 036 (1802). Should the possession of
several persons be concurrent it will be as-
sumed that he whose -exercise of acts of do-
minion is most marked is the actual owner.
Reid v. Butt, 25 Ga. 28 (1858): Curran v
McGrath. 67 111. App. 566 (ISOfi).
43. Amick v. Young, supra Trevorrow v.
Trevorrow, 65 Mich. 234. 31 \. W. OOS
(1887) ; New York v. Lent, 51 Barb. (N. Y.)
19 (1868); Philadelphia Trust, etc., Co. v.
Philadelphia, etc., R. Co., 177 Pa. 38, 35 Atl.
688 (1896) : 2 Chamb., Ev., 1192, n. 9, and
cases cited.
44. 2 Chamberlayne, Evidence, 1193-
1196.
45. Supra, 422 et seq.; 2 Chamb., Ev.,
1049 et seq.
46. Infra, 495 et seq.; 2 Chamb., Ev.,
1219 et seq.
47. Pottsville Safe-Deposit Bank v. Schuyl-
kill County. 190 Pa. 188, 42 Atl. 530 ( 1899) ;
Scottish Commercial Ins. Co. v. Plummer, 70
Me. 540 (1880).
48. Scott v. State, 43 Fla. 306, 31 So. 244
( 1901 ) ; A. H. Hugh Printing Co. v. Yeat-
man, 22 Ohio Cir. Ct. 584, 12 Ohio Cir Dec.
477 (1901) ; 2 Chamb., Ev., 1193, n 4, and
cases cited.
49. Belcher v. Belcher, 21 Ky. L Rep 1460,
55 S. W. 603 (1000): McFate's Appeal. 105
Pa. 323 (1884) : Holmes v. Cleveland, etc., R
Co., 03 Fed 100 (1861): 2 Chamb., Ev.,
1103, n. 5, and cases cited
50. Board of W 7 ater Com'rs, etc.. v. Robins
& Potter, 82 Conn 623, 74 Atl. 038 I 1010) :
Rogers v. Clark Iron Co., 104 Minn 108. 215
(1008) Befay v. Wheeler. 84 Wis. 13.)
(1803)-. 2 Chamh, Ev.. 1104 Contra:
People v. Siemson, 153 Cal. 387, 95 Pac 863
(1908).
34.3
ORDER OF EVENTS.
491
inference from the " presumption " as to the existence of other facts, 51 as the
irregularity of the official in question on another occasion, 52 the improper con-
duct of some other person, 53 or to supply a fact which the record shows to be
absent. 54 Such an attempt inevitably fails. 55
Ancient Facts. " There is a time when the rules of evidence must be re-
laxed. We cannot summon witnesses from the grave, rake memory from its
ashes, or give freshness and vigor to the dull and torpid brain." 56 In dealing
with ancient facts the administrative canon of expediting trials 5T is rein-
forced by the other principles of administration that the actor in any case will
be required 5S and, within the limits of sound reasoning, permitted 59 to pre-
sent to the court the best and fullest case that it is within his power to oifer.
It follows that where the fact in question comes to the tribunal from a time
beyond living memory, roughly placed by a rule of procedure or substantive law
at thirty years, it will readily be assumed that all conditions necessary to its
legal validity existed. 8 " The greater the elapsed interval, the more strongly
and comprehensively the assumption of regularity will be applied by the
courts.' 51 It results that even in case of formal documents 62 a shorter in-
terval than 30 years may operate to give a proponent the benefit of the admin-
istrative assumption of regularity.' 53
491. [Administrative Assumptions]; Regularity; Order of Events. 04 In
much the same way, it will be assumed that the events which the evidence re-
lates occurred in the order which will make them effective for the accomplish-
ment of the legal result which the actors had in view. 65 Among such results
are those embodied in documents. 66 Acts which would invalidate or fail to
Mo. 680, 118 S. W. 425 (1909); Richards
v. Elwell, supra; Strange v. Oconto Land Co.,
136 Wis. 516, 117 N. W. 1023 (1908): 2
Chamb., Ev., 1195, n. 5, and cases cited.
61. Cooper v Turner. 2 Stark. 438 (1819) ;
2 Chamb., Ev., 1196, n 1, and cases cited.
62. Wood v. Frickie. 120 La. 180, 45 So.
96 (1907) : Pope v. Patterson, 78 S. C. 334,
58 S. E. 945 (1907).
63. Enton v. Coney Island & B R. Co.. 121
X. Y. Supp. 793 (1910). Prima facie in-
ference after a shorter period See Cob-
leigh v Young, 15 N T . H. 493 (1844) : Austin
v. Austin, supra; Williams v Mitchell, 112
Mo. 300 (1892). No similar assumption is
made where the evidence in question is matter
of public record. Brunswick First Parish v.
McKean, 4 Me 508 (1827)
64. 2 Chamherlayne, Evidence, 1197.
65. Fitzgerald v. Barker. 85 Mo. 13 (1884) :
Hughes v. Dehnam. 53 X. C. 127 (1860) : 2
Chamb.. Ev . 1197. n 1. and cases cited.
66. Rrunke v. Oruben, 84 Neb. 806. 122 N.
W. 37 (1909) ; Talbot v. Talbot, 23 N. Y. 17
51. L. S. v. Ross, 92 U. S. 281, 23 L. ed
707 (1875)
52. Foster v. Berry, 14 R. I. 601 (1884);
Randall v. Collins. 52 Tex. 435 (1880).
53. Houghton County Sup'rs v. Rees, 34
Mich. 481 (1876).
54. Hathaway v Clark, 5 Pick. (Mass.) 490
(1827) ; Gibson v Martin, 7 Humphr. (Tenn.)
127 (1846).
55. U. S. v. Ross, supra A fortiori, such
an assumption cannot be used to forfeit a
party's rights or deprive him of his property.
Christ v. Fent, 16 Okl. 375. 84 Pac. 1074
(1906); Irwin v. Mayes, 31 Tex. Civ. App.
517. 73 S. W. 33 (1903).
56. Richards v. Elwell, 48 Pa. 361 (1864).
57. 304 et seq.; 1 'Chamb.. Ev., 544
et seq.
58. 227 et seq.; 1 Chamb.. Ev., 465
et seq
59. 149 et seq.: I Chamb.. Ev., 334
et seq.
60. Austin v Austin, 50 Me. 74, 79 Am.
Dec. 597 1 1863) ; Van Pelt v. Parry, 218
492 ADMINISTRATIVE ASSUMPTIONS. 344
afl'ect a legal result in accordance with the time, as related to that result, at
which it took place will be assumed to have been done when the actor might
properly have done as he did. 07 In other words, conditions precedent to
proper and legal action will be presumed to have occurred at a suitable time.' 18
Events will be assumed to have occurred in the natural order in which such
events usually happen. 01 * The assumption applies equally to the performance
of an act or the happening of an event subsequent to the act in question and
essential to its validity; it will be taken that the act has been done or the
event has happened. 7 "
492. [Administrative Assumptions] ; Judicial Proceedings. 71 Where the act
is one relating to the doings of any judicial tribunal, 72 board, magistrate or
officer, 74 it will be assumed that all facts existed necessary to give the act in
question full legal 75 or logical 76 validity. The conduct involved must, for
the operation of the assumption, be regular, official and in due performance of
judicial duty. 77
Courts of Record. The assumption of regularity is made with marked
frequency in connection with proceedings of courts of record 78 when acting
within the scope of what is known or proved to have been their jurisdiction. 79
Every act of a court of competent jurisdiction is presumed to have been right-
fully done. 80 In other words, he who would impeach the accuracy of judicial
proceedings of a court of record must introduce evidence to that effect. 81 The
rule applies equally to the proceedings of general or special 82 terms of court,
and to the proceedings of a probate court. 83
(1861) ; 2 Chamb., Ev., 1197, n. 2, and cases 77. Fouke v. Jackson County, 84 Iowa 616,
cited. 51 N. W. 71 (1892). The assumption, for
67. Eades v. Maxwell, 17 U. C. Q. B. 173 example, does not cover ex parte proceedings,
(1859) ; State v. Hannibal, etc., R. R., 113 Mo. Morton v. Reeds, 6 Mo. 64 (1839* ; still less,
297 (1893). those which are extra judicial. Fouke v.
68. Appeal of Gardner, 81 Conn. 171, 70 Jackson County, supra; Houston v. Perry, 3
Atl 653 (1908). Tex. 390 (1848).
69. Collins v. German-Amer. Mut. Life 78. Otto v. Young, 227 Mo. 193, 127 S. W.
Ass'n, 112 Mo. App. 209, 86 S. W. 891 9 (1910).
(1905). 79. Walker v. Newman, 146 111. App. 450
70. Chamberlain Banking House v. Wool- (1909) ; State v. Vaile, 122 Mo. 33, 26 8. W.
sey, 60 Neb. 516, 83 N. W. 729 (1900) : Com. 672 (1894) ; Broadway Trust Co. v. Man-
v. Atlantic, etc., R. Co., 53 Pa. 9 (1866) ; 2 heim, 95 N. Y. Supp. 93, 47 Misc 415 (1905) ;
Chamb., Ev.. 1198, n. 1, and cases cited. W T ilson v. State (Cr. App. Okl. 1910), 109
71. 2 Chamberlayne, Evidence, 1199- Pac. 289; 2 Chamb., Ev., 1200, n. 2, and
1201. cases cited.
72. Howcott v. Smart, 125 La. Ann. 50, 51 80. State v. Peloquin, 106 Me. 358, 76 Atl.
So. 64 (1910); Austin v. Marchant, 21 Wis. 888 (1910); Pearson v. Breeden, 79 S. C.
526, 99 N. W. 320 (1904). 302, 60 S. E. 706 (1908) ; Beale v. Com., 25
73. Infra, 493; 2 Chamb, Ev., 1206. Pa. U (1855).
74. Infra, 493: 2 Chamb., Ev., 1209. 81. Worley Adm. v. Hineman, 6 Tnd. App.
75. Mabb. v. Stewart, 143 Cal. xviii, 77 240 (1892):' State v. Lewis, 22 N. J. L. 564
Pac. 402 ( 1904) . ( 1849) ; 2 Chamb., Ev., 1200, n. 4, and cases
76. Danforth v. Egan, 23 S. D. 43, 119 N. cited.
W. 1021 (1909). 82. Merchant v. North, 10 Ohio St. 251
345
PUBLIC OFFICERS.
493
Inferior or Foreign Tribunals. The rule has been extended to tribunals
of inferior jurisdiction, 84 such as county 85 or district 8G courts. It applies
also to justices of the peace 87 and to other committing magistrates. 88 The
assumption is the same regarding the proceedings of foreign courts. 89
493. [Administrative Assumptions] ; Public Officers. 9 " The court will as-
sume, in the absence of intrinsic improbability, or facts bearing adversely in
the matter, that public officers or persons purporting to act as such, 91 have
been regularly and duly elected, 92 that they have complied with all the forms
of law necessary to qualify them to act as they have done 93 and that the acts
themselves, as they are brought to the attention of the tribunal, were regularly
and properly performed. 94 This assumption is a general one and applies to
all officials acting under national 95 or state 9S authority. 97 That is to say,
the law presumes, in the absence of evidence to the contrary, that public offi-
cers, 98 of all grades, have properly performed their duties, 99 and will do so in
(1859); Stockslager v. U. S. 116 Fed. 590,
54 C. C. A. 46 (1902).
83. Floyd v. Ricketson, 129 Ga. 668, 59
S. E. 909 (1907) ; McKillop v. Post, 82 Vt.
403, 74 Atl. 78 (1909); Brown v. Hannah,
152 Mich. 33, 115 N. W. 980 (1908).
84. Argo v. Barthand, 80 Ind. 63 (1881) ;
Hiatt v. Simpson, 35 N. C. 72 (1851) ; Mer-
ritt v. Baldwin, 6 Wis. 439 ( 1858) ; 2 Chamb.,
Ev., 1201, n. 1, and cases cited.
85. Young's Adm'r v. Chesapeake & Ohio
Ry. Co., 136 Ky. 784, 125 S. W 241 (1910) ;
Frost v. Board of Com'rs of Teller County, 43
Colo. 43, 95 Pac. 289 (1908).
86. Stull v. Masilonka, 74 Xeb. 309, 104
X. W. 188 (1905); Lethbridge v. Lauder, 13
Wyo. 9, 76 Pac. 682 (1904).
87. Oilman v. Weiser, 140 Iowa 554, 118
X. W 774 (1908).
88. People v. Warner, 147 Cal. 546. 82 Pac
196 (1905).
89. Christian, etc., Grocery Co. v. Coleman.
125 Ala. 158, 27 So. 786 (1899) : Covenay v
Phiscator, 132 Mich. 258, 93 N. \V 619
( 1903) The preliminary facts as to jurisdic-
tion are more carefully scrutini/ed except,
perhaps, in case of persons resident in the
foreign country or sister state. Com v.
Blood, 97 Mass. 538 (1867).
90. 2 Chamherlayne, Evidence, 1202-
1210
91. Payne v Treadwell. 16 Cal. 220 (1860).
92. Blanchard v. Dow. 32 Me. 557 ( 1851 ) .
93. Story v. De Armond. 77 111. App. 74
(1898); Nelson v. People, 23 N. Y. 293
(1861); Gregg v. Mallett, 111 N. C. 74
(1892) ; 2 Chamb., Ev., 1202, n. 3, and cases
cited.
94. Gibson v. Patterson, 75 Ga. 549 (1885) ;
Black v. Minneapolis, etc., R. Co., 122 Iowa
32, 96 N. W. 984 (1903) ; Ivy v. Yancy, 129
Mo. 501, 31 S. W. 937 (1895); Brown v.
Helsley (Neb. 1901), 96 N. W. 187; People v.
Crane, 125 X. Y. 535, 26 X. E. 736 (1891) ;
Watkins v. Havighorst, 13 Okl. 128, 74 Pac.
318 (1903) ; 2 Chamb., Ev., 1202, n. 4, and
cases cited.
95. Montgomery v. State, 55 Fla. 97, 45 So.
879 (1908) ; Erhardt v. Ballin, 150 Fed. 529,
80 C. C. A. 271 (1906).
96. Buchanan v. James, 130 Ga. 546, 61 S.
E. 125 (1908); Whiting v. Maiden & M. R.
Co., 202 Mass. 298, 88 X. E. 907 ( 1909 ) ;
Wenster v. Purcell, 186 N. Y. 549, 79 X. E.
1118 (1906), aff'g 94 X. Y. Supp. 1050, 106
App Div 360; State v Rose, 140 Wis. 360,
122 X. \V. 751 (1909); 2 Chamb., Ev.,
1202a, n. 2, and cases cited.
97. State ex rel. Abbott v Adcock. 225 Mo.
335, 124 S. W. 1100 (1910) ; State v. Clark.
32 Xev. 14;>. 104 Pac. 593 (1909): State v.
Middle Kittitas Irr. Dist.. 56 Wash. 488, 106
Pac. 203 (1010).
98. In re Sheriff of Monmouth County (N.
J. Sup 1906K 69 Atl 305.
99. Atwater v. O'Reilly. 81 Conn. 367. 71
Atl 505 (190S): In re Thorp's Will, 150 X.
C. 487. 64 S. E. 379 (lOOfl) : Craft v. Lent,
103 X. Y Supp. 366. 53 Misc. 4S1 (1907) : 2
Chamb., Ev., 1202a, n. 5, and cases cited.
493
ADMINISTRATIVE ASSUMPTIONS.
future. 1 The same assumption has been made in case of the officials of
another state. 2 The assumption applies also in criminal cases. 3
Executive; National or State. The official acts of the chief executive of a
nation, state 4 or territory will be assumed to have been regularly and prop-
erly done. 5 The same assumption will be made in case of high executive offi-
cers, as the secretary of state, 7 the surveyor-general s or officials of the public
land office. 9 The rule applies equally in case of important official boards, 1 "
as boards of equalization, 11 civil service commissioners 12 or the like. 13 The
official acts of military officers of the government 14 stand in the same posi-
tion. 15
County. Important county officers, 16 as county commissioners, 17 notaries
public, 18 registers of deeds, 10 registers of probate, 20 supervisors, 21 treasurer, 22
and the like, 23 will be assumed to have done their official acts with exactness
and regularity. The assumption, like others, furnishes no inference of fact ; 24
1. McCaleb v. Dreyfus, 156 Cal. 204, 103
Pac. 924 (1909).
2. State v. Lawson, 14 Ark. 114 (1853);
Koberts v. Pillow, i Hemp. (U. S.) 624
(1851).
3. Montjoy v. State, 78 Ind. 172 (1881);
People v. Otto, 101 JV Y. 690, 5 N. E. 788
(1886); Wilson v. State, 16 Tex. App 497
(1884); 2 Chamb, Ev., 1202a, n. 9, and
cases cited.
4. Flores v. Hovel (Tex. Civ. App. 1910),
125 S. W. 606; Plank Road Co. v. Bruce, 6
Md. 457, 466 (1854).
5. State v. Dahl, 140 Wis. 301, 122 N. W.
748 (1909).
6. A different ruling has been made in cer-
tain states. Milwaukee Ext., etc., Co. v.
Gordon, 37 Mont. 209, 95 Pac. 995 (1908).
7. Erford v. City of Peoria, 229 111. 546. 82
N. E. 374 ( 1907 ) ; Paxton v. State, 59 Neb.
460, 81 N. W. 383, 80 Am. St. Rep. 689
(1899).
8. Barnhart v. Ehrhart, 33 Or. 274, 54 Pac.
195 (1898) ; Buchanan v. Barnsley (Tex. Civ.
App. 1908), 112 S. W. 118.
9. Crawford County Bank v. Baker, 95
Ark. 438, 130 S W. 556 (1910): Houseman
v. International Nav. Co., 214 Pa. 552, 64
Atl. 379 (1906): 2 Chamb., Ev., 1202b, n.
6, and cases cited.
10. Balden v. State, 122 Tenn. 704, 127 S.
W. 134 (1910).
11. State ex rel Hammer v. Wiggins Ferry
Co., 208 Mo. 622, 106 S W. 1005 (1907)':
Jn re Webster. 94 N. Y. Supp. 1050, 106 App.
Div. 360 (1905).
12. People v. City of Chicago, 127 111.
App. 118 (1906).
13. Motley v. Wilson, 26 Ky. L. Rep. 1011,
82 S. W. 1023 (1904) (election commission-
ers) .
14. Drehmaii v. Stifel, 41 Mo. 184, 97 Am.
Dec. 268 (1867); Chapman Tp. v. Herrold,
5 Pa. 106 (1868).
15. Soldiers may come within the provisions
of the rule when engaged on public business,
e.g., recruiting. Wolton v. Gavin, 16 Q. B.
48, 20 L. J. Q. B. 73 (1850).
16. Bandow v. Wolven, 20 S. D. 445, 107
N. W. 204 (1906).
17. Thrash v. Com'rs of Transylvania
County, 150 N. C. 69o, 64 S. E. 772 (1909).
18. People v. Sanders, 114 Cal. 216, 46
Pac. 155 (1896); Black v. Minneapolis, etc.,
R. Co., supra: Me Andrew v. Radway, 34 N. Y.
511 (1866) : 2 Chamb, Ev., 1203, n. 3, and
cases cited.
19. Childers v. Pickenpaugh, 219 Mo. 376.
118 S. W. 453 (1909).
20. Willets v. Mandlebaum, 28 Mich. 521
(1874).
21. In re Drainage Dist. No. 3, Hardin Co.
(Towa 1909), 123 N W. 1059; Thayer v.
McGee, 20 Mich. 195 (1S70).
22. Holtsclaw v. State, 46 Tnd. App 238, 92
N. F. 121 (1910).
23. Smith v. Cox. 82 S. C. 1. 65 S. E. 222
(1909) (auditor): Oreen County v. Quinlan,
211 U. S. 582. 29 S. Ct. 162 (1009).
24. Chir-aeo. etc.. TJy Co v Perry County,
87 Ark. 408, 112 S. W. 977 (1908)'.
347
PUBLIC OFFICEKS.
493
no probative force exists in any assumption, whether of law or of administra-
tion. 25
Municipal. The Mayor or alcalde 2G or other city official 27 of any munici-
pality will be assumed to have performed his official acts in due and proper
form. 28 The officials assessing municipal taxes will, in like manner be as-
sumed to have done their legal duty. 2 " Town officers, 30 including those in
charge of the charities of the town, 31 will be taken, in the absence of evidence,
to have discharged their official duties in a lawful and proper manner. In a
similar way, the officers, 32 as assessors, 33 collectors, 34 whose duties relate to
taxation; or those, like town clerks, 35 treasurers, 36 trustees, 37 or township
committees, 38 whose province is more executive or financial in its nature, are
all conceded the benefit of the same administrative assumption. Village offi-
cers stand in the same position. 39
Legislative. In much the same manner, a reasonable presumption is to be
made in favor of the action of any legislative body 40 or of its officers. The
same judicial action is taken in cases of municipal councils, 41 or similar
bodies.
Judicial; Judges. The fully official acts of judges of general jurisdiction
are distinctively assumed to have been regular. 42 When the necessary facts of
jurisdiction are established, the same assumption is made in favor of the judi-
cial proceedings of judges of inferior courts, as county judges 43 or justices of
25. Appling v. State, 95 Ark. 185, 128 S. W.
866 (1910).
26. Payne v. Treadwell. 16 Cal 220 ( 1860).
27. Uoemheld v. City of Chicago, 131 111.
App. 76 (1907) ; City of Syracuse v. Hoscoe,
123 N Y. Supp. 403*. 66 Misc. 317 (1910);
Connor v. City of Marshtield, 128 Wis. 280,
107 X. W. 639 (1906).
28. Doe d Bowley v. Barnes, 8 Q. B. 1037
( 1846) ; 2 Chamb., Ev., 1204, n. 3, and cases
cited. The act assumed to have been regu-
larly done must, however, be one relevant to
some issue in the case. Hill v. Sheridan. 128
Mo. App. 415. 107 b. W. 426 (1908): 2
Chamb . Ev.. 1204.
29. Southland Lumber Co. v. McAlpin. 126
La. 906. 53 So. 45 (1910); People v O'Don-
nell, 94 X. Y Supp. 884. 106 App. Div 526, 47
Misc. 267 (1905).
30. Wyatt v. Burdett, 43 Colo. 208, 95 Pac.
336 (1908).
31. Red Willow County v. Davis, 49 Xeb.
796, 69 N. W. 138 (1896).
32. Adams v. Osgood, 60 Xeb. 779, 84 X.
W. 257 (1900) ; Eureka Hill Min. Co. v. Eu-
reka, 22 Utah 447, 63 Pac. 654 (1900 K
33. State v. Savage, 65 Xeb. 714, 91 X. W
716 (1902).
34. Austin v. Austin, 50 Me. 74, 79 Am.
Dec. 597 (1862); Downer v. Woodbury, 19
Vt. 329 (1847).
35. State v. Potter, 52 Vt. 33 (1879).
36. Murray v. Smith. 28 Miss. 31 (1854) ;
Spaulding v. Arnold, 125 N. Y. 194, 26 N. E.
295, afTg 6 X. Y. Supp. 336 (1891).
37. Miles v. Bough, 3 Q. B. 845, 43 E. C. L.
1001 (1842).
38. Mercer County Traction Co. v. United
New Jersey, etc., Co., 64 N. J. Eq. 588, 54
Atl. S19 (1903).
39. Bekkedahl v. Village of Westby, 140
Wis. 230. 122 X. W. 727 (1909).
40. Bryant v City of Pittsfield, 199 Mass.
530, 85 X. E. 739 (190S) : 2 Chamh., Ev.,
1204a.
41. Duniway v. City of Portland, 81 Pac.
945. 47 Or 103. 81 Pac. 945 (1905): State
v Mutty. 39 Wash 624, 82 Pac. 118 (1905) ;
Grand Trunk W. Ry. Co. v. City of South
Bend. 174 Ind. 203. 91 X. E. 809 M910K
42. Figge v. Rowley 84 111. App. 238. affd
185 111 234. 57 X. E. 195. (1899): Den v
Applegatp. 23 X J. L. 115 (1851 ^ : 2 Chamb..
Ev.. 1205. n 2. and cases cited.
43. Staples v. Llano Co. (Tex. Civ. App.),
28 S. W. 569 (1894).
493
ADMINISTRATIVE ASSUMPTIONS.
348
the peace. 44 Court officials or magistrates, such as auditors, 45 commissioners, 46
referees, 47 occupy the same position. Subordinate public officials exercising
judicial functions, e.g., coroners, 48 or notaries public 49 have been regarded as
equally within the purview of the rule.
Attorneys. The official acts of attorneys at law, as officers of the court,
will receive the benefit of the assumption of regularity. 50 Thus, his acts for
his client will be assumed to have been authorized by the latter 51 and to have
been done without intent to injure him. 52 His conduct will be in every case
assumed to have been carried on under a due sense of responsibility for good
faith to the court. 53 A fortiori, the public prosecutors 54 and district attor-
neys 55 will be taken to have well and truly performed their official duty.
Clerks. Conspicuous among judicial officers whose acts will be assumed to
have, been regular until shown to be otherwise are clerks of the court, 50 or
their deputies, appointed by virtue of some provision of law. 57 The assump-
tion goes so far as to take for granted that these officers have done their legal
and other appropriate duties in the entry, filing 58 and docketing 59 of papers,
or the like. Clerks of subordinate judicial tribunals, as the clerk of a grand
jury may receive the benefit of the same assumption.
Sheriffs and Other Officers. It will be assumed that the acts of sheriffs, 61
44. Shattuck v. People, 5 111. 477 (1843):
Hourtienne v. Schnoor, 33 Mich. 274 (1876) :
2 Chamb., Ev., 1206, n. 2, and cases cited.
45. Chelmsford Foundry Co. v. Shepard,
206 Mass. 102, 92 N. E. 75 (1910); High-
tower v. State, 58 Miss. 636 (1881): 2
Chamb., Ev., 1206, n. 3, and cases cited.
46. Regent v. People, 96 111. App. 189
(1901); Kobs v. Minneapolis, 22 Minn. 159
(1875); Lyman County v. State, 11 S. D.
391, 78 N. W. 17.
47. Story v. De Armond, 77 111. App. 74
(1898); Leonard v. Root, 15 Gray (Mass.)
553 (I860): Lewis v. Greider, 49 Barb. (X.
Y.) 606 (1867).
48. Woods v. State, 63 Ind. 353 (1878);
People v. Dalton, 61 N. Y. Supp. 263, 46 App.
Div. 264 (1899).
49. Pardee v. Schanzlin, 3 Cal. App. 597, 86
Pac. 712 (1906) ; Black v. Minneapolis & St.
L. R. Co., 122 Iowa 32, 96 N. W. 984 (1903) ;
2 Chamb., Ev., 1206, n. 7.
50. Fambles v. State, 97 Ga. 625, 25 S. E.
365 (1895) : Bowman v. Powell, 127 111. App.
114 (1906); Rice v. Bamberg, 59 S. C. 498,
38 S. E. 209 (1900) ; 2 Chamb., Ev., 1207,
n. 1, and cases cited.
51. Stone v. Missouri Pac. R. Co., 75 Kan.
600. 90 Pac. 25 (1907).
52. Meisenhpimer v Meisenheimer, 55
Wash. 32, 104 Pac. 159 (1909).
53. Older v. Superior Court, 10 Cal. App.
564, 102 Pac. 829 (1909).
54. State v. Matejousky, 22 S. D. 30, 115
N. W. 96 (1908).
55. Winnek v. Mace, 148 Cal. 270, 82 Pac.
1046 (1905).
56. Powers v. Hitchcock, 129 Cal. 325, 61
Pac. 1076 (1900) ; Morse v. Hewett, 28 Mich.
481 (1874); McPherson v. Commercial Nat.
Bank, 61 Neb. 695, 85 N. W. 895 (1901);
Schermerhorn v. Talman, 14 N. Y. 93 (1856) ;
2 Chamb.. Ev., 1208, n. 1, and cases cited.
57. Miller v. Lewis, 4 N. Y. 554 (1851).
58. Woods v. Sargent, 43 Colo. 268, 95 Pac.
932 (1908).
59. Burke v. Kaltenbach, 109 N. Y. Supp.
225, 125 App. Div. 261 (1908).
60. State v. Pitkin, 137 Iowa 22, 114 N. W.
550 (1908). No probative force necessarily
resides in this assumption or with the facts
as to which it is made, and should the as-
sumption of regularity be invoked as affirma-
tive proof, it necessarily fails. Drennen v.
People, 222 111. 592, 78 N E. 937 (1906).
61. San Francisco Sulphur Co. v. Aetna In-
demnity Co., 11 Cal. App. 701, 106 Pac. Ill
(1910) : Shelton v. Franklin, 224 Mo. 342, 123
S. W. 1084 (1909); Simon v. Craft. 182 U.
S. 427. 21 S. Ct. 836, 45 L. ed. llfi.i (1900) ;
2 Chamb., Ev., 1209, n. 1, and cases cited.
349 FOREIGN LAW. 494
deputy sheriffs, 62 police officers and constables 3 connected with the service of
legal process are regularly and properly done. The same assumption is made
as to other acts of these officers of the law, 64 and as to the regularity of the
official acts of other court officers,* 55 and persons connected, even more re-
motely with court proceedings, e.g.. jury commissioners. 66
Performance of Conditions. Everything essential to the validity of a
judicial act will be assumed to have existed. 67 For example, if notice is re-
quired, it will be taken for granted that it was duly given. " If process is to
be served upon a given individual in order that a subsequent legal act relating
to him should be valid, it will, in the absence of evidence on the subject, be
assumed that it has been done. 09 If the actor must, in order to do a valid
act, have made a preliminary finding, 7 " it will be assumed that he has made it.
494. [Administrative Assumptions] ; Relation Between Foreign and Domestic
Law. 71 The existence of a foreign law presents a question of fact 72 and the
matter is one entirely for evidence when evidence is furnished. 73 When there
is no evidence before the court on this point, the judge must assume that the
foreign law is similar to an analogous provision in some system of law with
which he is acquainted, 74 providing that such an assumption is reasonably
possible. 75
Foreiyn Law Assumed to be the Same as tliat of the Forum; Common Law.
- Where both the courts of the forum and those of the foreign state or coun-
try are under the common law, it will be assumed by the courts of the forum,
in all cases where the provision is not shown to be statutory 76 and no direct
62. Massachusetts Breweries Co v. Her- Thompson v. State, 23 Tex. Civ. App. 370, 56
man, 108 Me. 524, 76 Atl 943 ( 1910) ; Dud- S. W 603 (1900) ; 2 Chamb., Ev., 1210, n. 2,
ley v. Barrett, 66 \V. Va. 363, 66 S. E. 507 and cases cited.
(1909). 69. Best v. Vanhook, 11 Ky. L. Rep. 753,
63. McJ.ane v Moore, 51 X C. 520 (1859). 13 S. W. 119 (1890); Steinhardt v. Baker,
64. Thus, it will be assumed that a sheriff 163 N. Y. 410, 57 X. E. 629 (1900).
in giving a deed under a sale made by him 70. Mercer County Traction Co. v. United
acted within his legal powers. Patterson v. New Jersey, etc., Co., 64 X. J Eq. 588, 54
Drake, 126 Ga. 478, 55 S. E. 175 (1906); Atl. 819 (1903).
Ivy v Yancey, 129 Mo. 501, 31 S W. 937 71. 2 Chamberlayne, Evidence, 1211-
(1.895). 1218 -
65. Accuracy of stenographic report of of- 72. , supra; 1 Chamb., Ev.. 41.
iH-ial stenographer, quaere, Hutchinson v. 73. I'fford v. Spaulding. 156 Mass 65, 30
state, 28 Ohio Cir. Ct. R. 595 (1906). X E 360 (1892).
66. Louisville, etc , Ky. Co. v Schwab, 31 74. Ham v. St. Louis & S. F. R. Co.. 149
Ky. L. Hep. 1313. 105 ' S W. 110 (1907): Mo. App. 200. 130 S. W 407 (1910); 2
Com. v. Htighes. 33 Pa. Super. Ct. 90 (1907). Chamb.. Ev.. 1211.
67. Kavanaugh v. City of St. Louis. 220 Mo 75. In case of certain foreign countries not
-!!>(>, 119 S. W. 554 (1909) ; State v Savage. under Civil or Common Law like Turkey, or
ti'i Xeb 714 91 X. W 716 (1902); People v. other Mohammedan lands such an assump-
i.hnson, 46 Hun (X. Y.) 667 (1887): 2 tion would be. for most tribunals, an impos-
'imb/Ev, 1210. n. 1. and cases cited. sible one. Aslanian v Dostnmian. 174 Mass.
"3. Colorado Fuel. etc.. Co v. State- Bd 3-28. 54 X E. 845. 75 Am St. Rep 348. 47
-il Com'rs, 14 Colo App. 84. fiO Pac 3(57 L. R A. 495 (1S90K
>H9) ; Morgan v Neville, 74 Pa. 52 (1873) ; 76. Crane v. Blackman, 126 111. App 631
494
ADMINISTRATIVE ASSUMPTIONS.
350
evidence is presented on the point, that the legal or equitable 77 rule of such
foreign nation, state, 79 colony, or territory 80 which is also under common
law jurisprudence, is the same as its own. 81
Construction. A similar assumption based upon like reasons, will at times
be made as to a similarity in construction of the common law between two
states s - or federal jurisdictions which are both under the common law, or
between a state or, under like conditions, between a territorial jurisdiction and
that covered by a federal court. 8;j Although the court of the forum, where
the foreign law is statutory, 84 is not in a position to make any assumption in
the matter whatever, it will feel obliged to assume that the common law of the
forum governs as to points regarding the foreign law as to which there is no
evidence. 85 In general, it is to be observed that where the foreign state is
said to be under the common law, the system of law to which reference is made
is not the common law of England but that of the forum. 80
(1906) ; Jordan v. Pence, 123 Mo. App. 321,
100 S. W. 529 (1907).
77. Standard Leather Co. v. Mercantile,
etc, Co., 131 Mo. App. 701, 111 S. VV. 631
(1908).
78. Gordon v. Knott, 199 Mass. 173, 85
N. E. 184 ilU08); Mexican Cent. R. R. v
Eckman, 205 U. S. 538, 27 S. Ct. 791, 51
L. ed. 920 (1907); Vazakas v. Vazakas, 109
N. Y. Supp. 568 (1908); 2 Chamb., Ev.,
-1212. n. 3, and cases cited.
79. Hoxie v. New York, etc., R. Co., 82
Conn. 352, 73 Atl. 754 (1909); Scholten v
Barber, 217 111. 148, 75 N. E. 460 (1905);
Miller v. Aldrieh, 202 Mass. 109, 88 N. E. 441
(1909); Moreland v. Moreland, 108 Va. 93,
60 8 E. 730 (1908); 2 Chamb., Ev., 1212,
n. 4, and cases cited. Beard v Chicago & R
Co., 134 Minn 162, 158 N. \V. 816. L R. A.
1916 F 866 (1916): Southworth v. Morgan,
205 N. Y. 293, 98 X. E 490. 51 L. R. A.
(N. S.) 56 H912); Holbrook v. Libhy, 113
Me. 389, 94 Atl. 4S5, L. R. A. 1916 A 1167
(1915).
Presumption foreign law. The common
law of a sister state originally colonized
from England or formed from territory ceded
from England is presumed the same as that
of another common-law state in the absence
of evidence to the contrary. There is no sucli
presumption as to the statutes of a sister
state for they must be proved under proper
allegations before the courts can take cog-
ni/ance of them. International Text-Book
Co. v. Connelly. 206 X Y. 1S8. 99 X. E 722.
42 L. R. A. (X. S.I 1115 (1912).
80. St. Louis & S. F. R. Co. v. Johnson, 74
Kan. 83, 86 Pac. 156 (1906); Keagy v.
Wellington Nat. Bank, 12 Okl. 33, 69 Pac.
811 (1902).
81. The presumption that the common law-
is in force in another state applies only to
states carved out of English territory. Math-
ieaon v. St. Louis & S. F. H. Co.. 219 Mo.
542. 118 S. YY. 9 ( 1909). See also, 2 Chamb.,
Ev., 1214, ns. 3, 4.
82. Thomas v Clarkson, 125 Ga. 72, 54 S.
E. 77 (1906); Missouri, K. & T. Ry. Co. v.
Wise (Tex. Civ. App.), 106 S. W. 465, judg.
aff'd (Tex. Sup. 1908), 109 S. W. 112.
83. It will, for example, be presumed, in
the absence of proof, that the construction
placed on the common law by the supreme
court of a territory is the same as that of the
supreme court of the United States. El
Paso & S. W Ry. Co v. Smith, 50 Tex. Civ.
App. 10, 108 S. W. 988 (1908).
84. 2 Chamb., Ev., 1215, ns. 6, 7.
85. Thus, in construing a foreign statute
involving a question as to the limitation of
actions in the foreign state, regarding which
no evidence is furnished, the domestic court
is justified, and indeed obligated, in assum-
ing that the period of limitations in the
foreign state is the same as that which pre-
vails in its own jurisdiction Missouri, etc.,
Co. of Texas v. Harriman Bros. (Tex. Civ.
App. 1910). 128 S. W. 932.
86. Ha/en v Mathews. 184 Mass. 388. 68
X. E. 838 (1903) : Spencer v. Buscli. 98 X Y.
Supp. 690. 50 Misc. 284 (1006*: White v.
VJicheson (Tex. Civ. App. 1906), 94 S. W.
202
351 FOREIGN LAW. 494
Inertia of the Court. The assumption that the law of the foreign state or
country is the same as the common law of the forum is made with especial
ease when the foreign state has formed part of the jurisdiction of the forum 87
and has adopted the same system of jurisprudence. 88 The inertia of the
court S9 may, however, be increased by the circumstances of the case as well as
thus diminished by them. The judge will, for example, decline as a rule, to
assume a similarity which would result in working a forfeiture, 90 voids a
transaction otherwise valid, 91 or subjects the party to some similar penalty. 1 * 2
Statutory Law. The general uniformity in statutory regulation in the
several states of the American Union and between England and her self-gov-
erning colonies has induced certain states in the American Union to rule that
the law of a sistei state will be assumed, in the absence of evidence on the
subject, to'be the same as the statute law of the forum; 93 and has led English
courts to hold that the same rule should apply to the laws of one British colony
in the courts of another. 94 In connection with the assumption to which
reference has previously been made <J5 that the common law of the foreign
state will be assumed to be the same as the common law of the forum, this
amounts to saying that in these tribunals the law of a sister state 90 or foreign
country " 7 will be taken in all cases where no evidence is furnished to be that
of the forum. 98
Foreign Law Not Assumed to be the Same as that of the Forum. Among
87. State v Patterson, 24 X. C. 346, 3 .Moehlenpah v. Mayhew, 138 Wis. 561, 119
Am. Dec. 699 ( 1842 I. N. \V. 826 (1909); 2 Chamh., Kv., 1214, n.
88. Dormit/er v. German Sav., Etc, Soc., 1, and cases cited. Droge Elevator Co. v.
23 Wash. 132, 62 Pac. S62 (1900). W P. Brown Co., 172 Iowa 4, 151 X. W.
89. Supra, 409; 2 Cliamb., Ev., 993 1048.
90. Fred Miller Brewing Co. v. De France, 94. Langdon v. Robertson, 13 Ont. 497
90 Iowa 395, 57 N. \V. 95!) ( 1894) ; Citizens' (1887).
Sav Bank v. Couse, 124 X. Y. Supp. 79 95. 2 Chamb., Ev., 1212.
(1910); Hull v Augustine, 23 Wis. 383 96. Dagyett v. Southwest Packing Co., 155
(1868) ; 2 Chamb., Ev., 1213, n. 4, and cases Cal. 762. 103 Pac. 204 (1909); Reid, Mur-
cited. CONTRA: Leake v Bergen, 27 X. J doch & Co. v. Northern Lumber Co., 146 111
Eq. 360 (1876) . McCraney v. Alden, 46 Barb. App 371 ( 1909) ; Taber v. Seaboard Air Line
(N. Y.) 272 C1S66). Ry, 81 S. C. 317, 62 S. E. 311 (1908) : Elmer-
91. Western Union Tel. Co. v. Way. 83 green v. Weimer. 138 Wis. 112. 119 X. W.
Ala. 542, 4 So. 844 (1887) ; Smith v. Whit- 836 (1909) ; 2 Chamb., Ev., 1214, n. 4, and
aker, 23 111. 367 (I860). But see Terry v. cases cited.
Robins, 128 N. C. 140, 38 S. E. 470, 83 Am. 97. Lilly-Bracket Co. v. Ronnemann, 157
St. Rep. 663 (1901) Cal. 192, 106 Pac. 715 (19101; Galard v.
92. Louisiana, etc, R. Co. v. Phelps. 70 Winans, 111 Md 434, 74 All. 626 (1909): 2
Ark. 17. 65 S W. 709 (1901) -. Atchison, etc.. Chamb, Ev., 1214. n. 5, and cases cited.
R. Co. v. Betts, 10 Colo 431. 15 Pac. 821 98. Fidelity Ins. Co. v. Xelson, 30 Wash.
(1887): 2 Chamb., Ev . 1213, n 6, and 340, 70 Pac. 961 (1902). Tt has even been
cases cited. deemed that a domestic court could safely as-
93. O'Sullivan v. Griffith. 153 Cal. 502. 95 sume also that the construction given to tie
Pac. 873. 96 Pac. 323 (1908) McMillan v. statute in the two jurisdictions has been the
American Express Co., 123 Towa 236, 98 X. same. Howe v. Ballard, 113 Wis. 375. 89
W. 629 (1904): Peter Adams Paper Co. v. N. W. 136 (1902).
Cassard, 206 Pa. 179, 55 Atl. 949 (1903);
ADMINISTRATIVE ASSUMPTIONS. 352
Occidental nations the two general systems of jurisprudence are those of the
civil and of the common law. If the foreign state is under the common law
and the state of the forum is not, the only assumption reasonably to be indulged
in is that the matter is to be adjusted under the common law." Conversely,
where the forum is under the common law and the foreign state is not, no
assumption of similarity can be indulged by the courts of the former. 1 In
other words, the common law is not to be presumed to be in force in any state
or country where English institutions have not been established. 2
When Foreign Laic is Statutory. A domestic court, where the foreign law
is shown to be statutory, can make no administrative assumption as to what the
provision of the foreign law is ; 3 provided that the domestic rule is one of
the common law.
Civil Law Assumed to Govern, Where the forum is under the common
law and the foreign state is under the civil the permissible assumption is that
the case is governed by the provisions of the latter system. 4 A court admin-
istering the civil law will naturally assume that the law on a given point of a
foreign jurisdiction in which the civil law prevails is the same as its own on
any given point. 5
Common Law. While, as has been said, there is a likeness between the
statutes passed by the American States on any given subject or between the
statutory legislation of England and her colonies, a great diversity in particu-
lars is so obvious as to have induced many eminent courts to decline to assume
the existence of any provision in a foreign state or country similar to that
contained in a domestic statute. 15 This is the usual rule adopted where the
statutory departure from the common law rule adopted in the jurisdiction of
the forum has been radical 7 or recent. As in cases arising under the common
99. Martin v. Boler, 13 La. Ann. 369 Ruling of Fraternal Mystic Circle v. Wood,
(1858); -2 Chamb. Ev., 1215. 114 111. App. 431 (1904); Com. v. Stevens,
1. Watford v. Alabama & Florida Lumber 196 Mass. 280, 82 X. E. .33 (1907) ; Hain v.
Co, 152 Ala. 178, 44 So. 507 (1907) St. Louis & S. F. R Co.. 136 Mo. App. 17,
2. Banco De Sonora v. Bankers' Mut. Cas- 117 S. W. 108 (1909).
ualty Co.. 124 Iowa 576, 100 N. W. 532 4. See Dempster v. Stephens, 63 111. App.
(1904). It will not be assumed that tbe com- 126 HS95).
mon law prevails in states which, like Idaho, 5. Mexican Cent. R. Co v. Olmstead (Tex.
were never under the law of England. Me- Civ. App. 1900), 60 S. W. 267; Mexican
Manus v Oregon Short Line R. Co., 118 Mo. Cent. R. Co. v. Glover, 107 Fed. 356. 46 C.
App. 152, 94 S. W. 743 H906). See also, 2 C A. 334 (1901) ; 2 Chamb., Ev., 1216.
Chamb., Ev., 1213. n. 6. I nder such circum- 6. Baltimore, etc.. R. Co. v. Hollenbeck.
stances, the court of the forum, in the ab- 161 Ind. 452. 69 X. E. 136 i 1903) ; Cherry v.
sence of evidence as to what the law of the Sprague. 187 Mass. 113. 67 L. R. A. 33, 72
foreign state is, will determine the matters in N. E. 456 (1904) ; State v Clark, 178 Mo.
issue according to its own laws. 20, 76 S. W. 1007 (1903) ; Patton v. Patton.
3. Cormo v. Boston Bridse Works. 205 123 X. Y. Supp. 329 (1010) : 2 Chamb., Ev.,
Mass 366, 91 X. E. 313 (1910). The statute 1217, n. 1, and cases cited.
or written law of a foreisn state or country 7. Dickey v. Pocomoke City Xat. Bank, 89
can only be considered in so far as it is Md. 280. 43 Atl. 33 (1899); Demelman v.
proved to the court of the forum. Supreme Bra.-ier, 193 Mass. 588, 79 X. E 812 (1907) ;
353 WRONGDOING NOT ASSUMED. 495
law, 8 the court of the forum will not assume a similarity of statutory provision
where the effect of so doing would be to work a forfeiture. 9
Common Law of the Forum. Where the law of the forum is statutory and
assumption of uniformity is not taken, the judge is thus almost necessarily
obliged to assume that in the foreign state the matter in question is governed
by the common law. 10 This means that the presiding judge will do one of two
things. (1) He may regard as applicable to the situation n the common law
of England, 12 including the law Merchant, 13 * and English statutory law passed
prior to the Declaration of Independence of the American Colonies and adopted
by them as suited to their condition. 14 (2) Or, he may apply the common law
of England as understood in the forum, i.e., as affected by local usage or con-
struction, 15 the common law as it would have been had no staute been passed.
Of the two, the latter is the easier and more usual course. 16
495. [Administrative Assumptions] ; Wrongdoing Not Assumed. 17 The ad-
ministrative presumption of regularity is most readily made by the court when
it is the legal duty of the actor to be regular and where his failure to do so
would be an illegal, 18 immoral 19 or criminal act. At times it is affirmative,
as that there is a presumption against fraud or wrongdoing, or in favor of
good faith or legality, that every one is presumed to be innocent, etc. 20 In other
cases, the form is negative, fraud or illegality is not presumed, there is no
presumption in favor of fraud, wrongdoing will not be inferred, and the like.
As a canon of administration, it amounts to saying that there will be no as-
Kobb v. Washington and Jefferson College, Low v. Learned, 34 N. Y. Supp. 68, 13 Misc.
185 N. V. 485, 78 X. K. .So!) (1006). 150 (1895).
8. 2 Chamb., Ev., 1213. 14. Bradley v. Peabody Coal Co., 99 111.
9. C'iti/.ens' Sav. Bank v. Couse, 124 N. Y. App. 427 (1902).
Supp. 7!) (1910): Fidelity Ins., etc., Co. v. 15. Robinson v. Yetter, 238 111. 320, 87 N.
..elson, 30 Wash. 340, 70 Pac. 061 (1902) ; E. 363 (1909) ; Matter of Hamilton, 27 N. Y.
2 Chaml)., Ev., 1217. n. 4, and cases cited. Supp. 813, 76 Hun 200 (1894); 2 Chamb.,
CONTRA: Edleman v. Edleman, 125 Wis. Ev., 1218, n. 6, and cases cited.
270, 104 N. W. 56 (1905). 16. 2 Chamb., Ev., 1215, n. 5.
10. Baltimore, etc., K. Co. v. Hollenbeck, 17. 2 Chamberlayne, Evidence, 1219-
siipra ; Hobb v. Washington and Jefferson Col- 1223.
lege, supra: 2 Chaml).. Ev., 1218, n. 1. and 18. In re Darrow's Estate, 118 X. Y. Supp.
cases cited. 1082, 64 Misc. 224 (1909) ; Cleage v. Laidley.
11. Engstrand v Kletfman. 86 Minn. 403, 149 Fed. 346, 79 C. C. A. 284 (1906): 2
90 X. W. 1054 (1902): State v. Shattuck, 69 Chamb., Ev., 1219. n. 1, and cases cited.
Vt. 40.3, 3S Atl. SI, 60 Am. St. Rep. 936. 40 2 Chamb., Ev., 1222.
L. R. A. 428 (1897). 19. -rEtna Indemnity Co. of Hartford v.
12. Schlee v. Guckenheimer, 179111.593,54 George A. Fuller Co.. Ill Md. 321, 73 Atl.
X T . E. 302 (1899) ; Crandall v. Great Xorth- 738, 74 Atl. 369 (1909) : Life Ins. Co. of Vir-
ern R. Co., 83 Minn. 190, 86 X. W. 10. 85 ginia v. Hairston. 108 Va. 832, 62 S. E. 1057
Am. St. Rep. 458 (1901); Casola v. Kugel- (1908): 2 Chamb.. Kv., 1219, n. 2, and cases
man. 54 X. V. Supp. 89. 33 App. Div. 428 cited.
(1898) ; 2 Chamb.. Ev.. 1218, n. 3. and cases 20. Jensen v. Montgomery, 29 Utah 89, 80
cited. Pac. 504 (1905).
13. Reed v. Wilson, 41 N. J. L. 29 (1879) ;
495 ADMINISTRATIVE ASSUMPTIONS. 354
sumption made against a person's good faith or good conduct in the absence
of evidence.
Fiduciary Conduct. Fiduciaries are, it is said, presumed to have acted
in good faith and performed their duties, and not to have permitted breaches
of trust. 21
Professional Duty. In connection with matters of professional, as distin-
guished from legal or moral duty, the same assumption, in modified form,
will be made. 22
No Probative Force. Certain courts have held that there is a probative
force in the " presumption " or assumption itself. 23 This is clearly an error.
There can be no probative weight in a mere administrative assumption. 24
Good Character. In much the same way, it is said in a civil case, that the
character of a person is presumed to be good, 25 or that a person accused of
crime is presumed to have a good character. In either case the actual ruling
is to the effect that if either side desires to have it appear that the character
of the person in question is other than good, he has the burden of evidence
to prove it so.
Fraud. It is said that there is a presumption against fraud. 20 An equiva-
lent expression apparently is that good faith will be presumed. 27 The mean-
ing is not varied when it is announced that fraud is never presumed. 2K The
real purport of the expression is to the effect that " He who alleges fraud must
prove it. 1 ' 29
Illegality. It is said that there is a presumption against illegality, 30 that
21. McCreery v. First Xat. Bank, 55 W. 51 Pac. 518 (1897) ; Creeden v. Mahoney, 193
Va. 663, 47 S. E. 800 (1904). This rule of Mass. 402, 79 N. E. 776 (1907); 2 Chamb.
practice or administration is applied to the Ev., 1221, n. 1, and cases cited.
officers of corporations Keady v. United Rys. 27. \Veybrick v. Harris, 31 Kan. 92, 1 Pac.
Co., 57 Or. 325, 108 Pac. l!>7 i 1910). 271 (1883) ; State v. Washington Steam Fire
22. A surveyor, for example, will be as- Co., 76 Miss. 449, 24 So. 877 (1899); 2
sumed to have run out correctly the meander Chamb., Ev., 1221, n. 2, and cases cited.
line of a piece of land bounded by water. 28. Smith v. Collins, 4 Ala. 394, 10 So.
Kimball v. McKee, 149 Cal. 435. 86 Pac. 334 (1891): Little Rock Bank v. Frank, 63
1089 (1906). ' Ark. 16, 37 S. \V. 400, 58 Am. St. Rep. 65
23. Mordhurst v. M. Wayne, etc. Traction (1896).
Co., 163 Ind. 268. 71 X. E. 642. 66 L. R. A. Fraud may be inferred. While fraud will
105 (1904): Childs v. Merrill, 66 Vt, 302, 29 not be presumed, it may, as a matter of
Atl. 532 (1894): .fames River, etc.. R. Co. v. course, be inferred from circumstances.
Uttlejohn. 18 dratt. (Va.) 53 (1867). "The word 'presumed.' however, has an en-
24. 2 Chamh., Ev.. 1219. That operates, tirely different meaning from the word ' in-
so far as it operates at all. in advance of the f erred.' " Bannon v. Ins. Co. of North
introduction of evidence and amounts merely America. 115 Wis. 250-259, 91 N. W. 666
to saying that he who alleges illegality will. ( 1902 I . See also, Morford v. Peck, 46 Conn,
as a matter of administration, be required to 380 (1878) ; State, to Use of Erhardt v.
prove it. Id., n. 9. Estel. 6 Mo. App. 6 (1878); 2 Chamb., Ev.,
25. ftoggans v. Monroe, 31 f!a. 331 (I860) : 1221. n 3.
Kennedy v. Holladay, 25 Mo. App. 503 29. Parkhurst v. McGraw, 24 Miss. 134
(1887) ; 2 Chamb., Ev., 1220. (1852).
26. Levy v. Scott. 115 Cal. 39. 46 Pac. 892 30. Doerinir v. Peterspn. 75 Minn. 118, 77
(1896); Webb v. Marks, .10 Colo. App. 429. N T . W. 568 (1898); State v. Hannibal, etc.,
355
CONFLICT OF PRESUMPTIONS.
496
there is a presumption in favor of legality," 1 that it will be presumed that all
facts necessary to legality in a given transaction in point of fact existed. :J -
With substantially identical meaning, it may be said that where a particular
situation is presented to the court, such an explanation of it will be adopted,
if possible, as is consistent with legality. 33 Without perceptible difference in
the intended meaning, the rule, whatever it may be. is frequently put in a
negative form. The law is said to make no presumption against legality, 34
or it is said that there is no presumption that illegality exists. 35 A more in-
telligible expression of identical meaning would be to the effect that he who
relies upon the existence of illegality has either the burden of proof to estab-
lish it or the burden of evidence as to it if he be the non-actor. ;JG
Corporations. The presumption of right acting, or against illegality, 37
applies as to the conduct of all corporations, domestic or foreign, municipal 38
or private.
No probative force attaches to the assumption, whatever may be true of the
facts on which it rests or with which it deals. 39
496. Conflict of Presumptions ; Civil Cases. 4 " In civil cases, the adminis-
trative assumption most frequently employed is that against illegality, 41 prac-
tically a " presumption of innocence " in civil proceedings. 42 Thus it may
be said that the presumption from the possession of a note or other negotiable
instrument that it has been paid 43 is not sufficient to overcome the presumption
against fraud. 44 The presumption- against fraud, being, in this connection a
K. Co., 1J3 Mo. 297, 21 S. W. 14 (1892);
Spaulding v. Arnold. 125 X Y. 194, 20 X. E.
2'Jo, alf'g 6 X. Y. Supp. 336 (1891); 2
Chamb., Ev., 1222, n. 2, and cases cited.
31. J. \Yalter Thompson Co. v. Whitehed,
185 111. 454, 50 X. E. 1106 (1900) ; Hartwell
v. Root, 19 Johns. (X Y.) 345. 10 Am. Dec.
232 (1822); Hays v Hill, 23 Wash. 730, 63
Pae. 576 (1901) ; 2 Chamb., Ev.. 1222. n. 3.
and cases cited.
32. Friend v. Smith Gin Co., 59 Ark SO. 20
S. W. 374 (1894) : Korn v. Schedler. 11 Daly
(X. Y ) 234 (1882).
33. FUher v. Mclnerney. 137 Cal. 28. 60
Pac. 022, 907, 92 Am st Rep. 68 (1902):
Osborn v. Weldon. 140 Mo 185, 47 S. W. 936
N'.lsi: (ireen v. Benham. 08 X. Y. Supp.
248. 57 App. Div 9 (1900); 2 Chamb., Ev.,
1222. n. 5, and case< cited
34. Sheffield v. Halmer, 52 Mo. 474. 14 Am.
Rep. 430 (1873)
35. Detroit Sav. Rank v. Truesdail. 38 Mich.
430 (1878); Luttrell v. State. 40 Tex. Cr
051. 51 S. YV 930 (1S991.
36. Friend v. Smith Gin Co.. supra: Bax-
ter v. Ellis. 57 Me. 178 (1869).
37. United Shoe Mach. Co. v. Ramlose, 210
Mo. 631, 109 S. W. 507 (1908)
38. Inhabitants of Wellington v. Inhabit-
ants of Carinna, 104 Me. 252, 71 Atl 889
( 1908) .
39. Thus, the fact that the registration of
ballots remains unchanged between the time
of a balloting and a recount of the votes can-
not be affirmatively established as a fact by
means of the assumption against illegality.
Trumbull v. Board of Canvassers of City of
Jackson, 140 Mich. 529. 103 X. W. 993 (1905).
See as to rules of pleading and administra-
tion. 2 Chamb., Ev., 1223
40. 2 Chamber layne. Evidence, 1224.
1225.
41. Supra. 495: 2 Chamb.. Ev., 1222.
Chamb.. Ev.. 1224.
42. Ni/pra. 47S: 2 Chamb., Ev., 1172,
n. 1.
43. Supra. 425: 2 Chamb., Ev., 1056.
n. 3.
44. Exceisior Mfg. Co. v. Owens, 58 Ark.
550. 25 S. W. 868 (1894).
497 ADMINISTRATIVE ASSUMPTIONS. 356
mere statement as to the burden of proof, 45 or evidence, 46 the ruling is, in
reality, one to the effect that such possession does not, as a matter of evidence,
establish a prima facie case, in a matter so greatly enhancing the inertia of the
court. 47 So of the presumption against illegality. 45 * It amounts, as has been
seen, to the statement that he who claims illegality must allege it in his plead-
ings or establish it in his proof by a required preponderance of the evidence.
Thus on an action involving bigamy, the party having the burden of evidence
as to that fact produces facts tending to show the existence of a former mar-
riage at an early date and asks the jury to infer from the so-called presumption
against change that the earlier relation still continued at the time of the second
marriage. This inference does not constitute, under the circumstances, a prima
facie case. The burden of evidence is not sustained. In announcing a ruling
to this effect, the customary form of expression is to say that the presumption
of continuance does not overcome the presumption against illegality or in
favor of right conduct or whichever of several alternative 4!> expressions the
judge may see fit to adopt. 50
A Contrary View. In view of the fact that inferences alone possess pro-
bative force, it seems clear that in establishing the existence of a particular
fact, rules of procedure, whether of assumption or otherwise must be denied
all weight and the whole question regarded as one for the use of evidence.
For this reason the contention that where, in a civil case, the presumption of
the continuance of life tends to show a subsequent marriage to be bigamous,
the presumption of innocence requires that probative force should be denied
the presumption of continuance of life, has been vigorously repudiated by
courts of high authority. 51
497. [Conflict of Presumptions]; Criminal Cases; Knowledge of Law. r>2
When the proposition of substantive law that ignorance of a law furnishes no
excuse for its violation is paraphrased into the language of logic by saying
45. Rupra, 495; 2 Chamb., Ev., 1221. administrative effect is denied to the so-called
46. 8upra, 402 et seq.; 2 Chamb., Ev., "presumption of innocence." * : The presump-
967 et seq. tion of innocence is not based upon facts, but
47. tfupra, 409; 2 Chamb., Ev.. 993. is independent of all evidence. The presump-
48. Hitpra, 495; 2 Chamb., Ev., 1222. tion of continued life rests upon facts proved :
49. Kxcelsior Mfg. Co. v. Owens, supra. and those established facts, while they raise
50. Case v. Case, 17 Cal. 598 (1861) ; Stein the presumption of continued life, rebut the
v. Stein, 66 111. App. 526 (1896); Klein v. presumption of innocence." Hyde Park v.
Laudman, 2!) Mo. 259 (I860); Clayton v. Canton, 130 Mass. 505 (1S1). In such a
Wardell, 4 N. Y. 230 (1850) ; 2 Chamb., Ev., case, as in any other, entirely regardless of
1225, n. 11, and cases cited. See general any presumption of innocence in a civil or
discussion of conflict of presumptions, 2 criminal case, the logical inferences as to
51. Thus, in a case involving a pauper set- actual continuance of life should receive care-
tlement acquired by a second marriage and ful consideration. Murray v. Murray, 6 Or.
residence in the defendant town, the defense 17 (1876) : 2 Chamb., Ev.. 1225.
being that of a prior marriage to a man who 52. 2 Chamberlayne, Evidence, 1226,
had abandoned the pauper several years be- 1227.
fore and not shown to be dead, any such
357 INNOCENCE. 498
that " everyone is presumed to know the law," 53 the effect of its application
to a criminal case upon the rights of a defendant may well be stated as being
that the presumption of knowledge of law is sufficient to overcome the pre-
sumption of innocence. 54 In reality the ruling is as to the sufficiency of cer-
tain facts to meet a legal requirement as to the quantum of proof.
498. [Conflict of Presumptions] ; " Presumption of Innocence." 55 Anv actual
" conflict " between a rule of substantive law relating to procedure like the
" presumption of innocence,'' and the logical effect of certain facts in creating
belief in the mind is intrinsically impossible. When it is said, therefore, that
a given fact, or set of facts does or does not overcome the " presumption of
innocence,'' the most that can be rationally meant by the court is a ruling as to
the evidentiary value of certain evidence as constituting a prima facie case.
For example, it is said of every incriminating fact which the government in-
troduces to show the guilt of the accused that it conflicts with the " presumption
of innocence." Of every material proposition which it succeeds in establish-
ing beyond a reasonable doubt, it is asserted that the prosecution has pro tanio,
overcome the defendant's " presumption of innocence." 56 On the contrary,
where a given set of facts does not establish guilt beyond a reasonable doubt, it
is said that the presumption of innocence still protects the accused. 57 It would
thus be entirely possible, were any advantage to be so gained, to state the pro-
bative value of any incriminating facts brought against the accused in a crim-
inal case in terms of their effect upon this so-called '' presumption of inno-
cence." 58 On the other hand, the insufficiency of certain facts in a criminal
proceeding to make or mar a prima facie case may, in much the same way, be
53. Xupra, 477; 2 Chamb., Ev , 1169. beyond a reasonable doubt, from the observed
54. Dunlop v. U. S., 165 U. S. 486, 17 S. regularity of certain public offices (Dunlop v
Ct. 375, 41 L. ed. 709 (1896) ; 2 Chamb., Ev., I. S.. supra), or from the proposition of ex-
1226, 1227. perience that books of public account are
55.2 Chamberlayne, Evidence, 1228- usually correct ( Hemingway v. State, supra )
1231. fan, were it desirable, readily be put into the
56. Hemingway v. State, 68 Miss. 371, 8 So. form of saying that the presumption or reg-
317 (1S90) : State v Shelley, 166 Mo. 616, 60 ularity (supra. 490 et seq : 2 Chamb.. Ev ,
S. \V. 430 (1901); Dunlop v U. S.. -supra. H93 et serf.} overcomes the "presumption
57. Dalton v. U. S., 154 Fed. 461, 83 C. C. of innocence." So. on an indictment for
A. 317 (1907) adultery, it is a familiar proposition of expe-
58. Thus, the fact that the government need rience that the defendant's wife was alive at
not, as part of its original case, introduce the time of the a 1 lewd unlawful act may
evidence that the* accused is sane (supra. logically be shown hy proof of her being alive
424. n. 11: 2 Chamb, Ev . 1052. n. 1), shortly before, on the presumption that life
may be put in the form of saying that the once shown to exist, continues for a reason-
presumption of sanity is sufficient to over- able time Hiipra. 4->0 : 2 Chamb.. Ev..
come the "presumption of innocence" Dun- 1042. Com v McCrafh. 140 Mass. 296. 6
lop v. U. S, supra. In like manner, the ad- X. E 515 (1885). This may he stated by
ministrative canon that the court will assume savin-,' that "the presumption of life out-
that official duty is properly performed or \veihs the presumption of innocence which
the circumstance that an inference of fact the law indulges." Howard v. State, 75 Ala.
may reasonably be drawn, in the absence of 27 (1883).
evidence to the contrary, convincing the mind
498 ADMINISTRATIVE ASSUMPTIONS. 358'
announced in terms of their effect upon this " presumption of innocence," so
called. 5!>
Continuance of Life. As has incidentally been intimated, an inference or
presumption with which the so called " presumption of innocence " is said,
with special frequency, to " conflict " is that of the continuance of life. 00 The
ruling by a presiding judge that the person alleging that a given individual
was alive at a certain time must prove it, or introduce evidence tending to do
so, is spoken of as one to the effect that the presumption of the continuance of
life' does not overcome the presumption of innocence. 61 Should the judge's
ruling be to the contrary effect, it will probably be found that he is said to have
held that the presumption of innocence overcomes the presumption of continu-
ance. 02
Bigamy. For example, where one of a married couple remarries in the
absence of affirmative evidence of the death of the other party and is subse-
quently indicted for bigamy, it is for the prosecution to establish the fact that
the absent consort was actually alive at the time of the second marriage. To
make this proof, it cannot, after a short interval, rely upon any logical infer-
ence or presumption that a person once shown to be alive continues to be so. G:i
So, also, on an indictment for bigamy, where it is sought to prove the former
marriage by evidence of cohabitation and recognition of the accused as a hus-
band or wife, 04 a ruling that the inference from such evidence does not estab-
lish beyond a reasonable doubt the constituent fact of the existence of the
former marriage at the time of the alleged offense may be announced by saying
that such facts do not overcome the presumption of innocence.
No Presumption in the Matter. The more rational rule has been an-
nounced, by many courts even in criminal cases, to the effect that under cir-
cumstances raising a conflict between the so called " presumption of inno-
cence " and the inference or presumption of the continuance of life, the only
59. Where the government establishes a 60. Supra, 420; 2 Chamb., Ev., 1042.
fact which fails for some reason, logical or 61. Ashbury v. Sanders, 8 Cal. 62, 88 Am.
legal, to support heyond a reasonable doubt. Dec. 300 (1857): Reedy v. Mulli/.en. 155 111
a material allegation in the indictment, it 030, 40 X. E. 1028 (1895); Smith v. Knowl-
may be said that the presumption from such ton, 11 N. II. 101 (1840): 2 Chamb., Ev.,
a fact does not overcome the presumption of 1220, n. 4, and cases cited
innocence. People v. Blackmail. 127 Cal 24S. 62. 2 Chamb., Ev., 122!)
59 Pac. 573 (ISO!)): Lockhart v. White. 18 63. Squire v. State. 40 1ml. 450, 467
Tex. 102 (1856). So, on an indictment for (1874): Murray v Murn^-. (i Or. 17 (1870):
impersonating an elector, the assumption that Rex v. Twyning. 2 B. & Aid. 386. 20 Rev.
registration proceedings are regular (State v. Rep. 480 (1810). See also. Smith v. Knowl-
Shelley, supra) . may not be received as es- ton, supra ; Chapman v. Cooper. 5 Rich. (S.
tablishing beyond a reasonable doubt a mate- C ) 452 (1852) : 2 Chamb., Ev., 1230. n. 1,
rial allegation in the government's case. and cases cited.
Under such circumstances, the court may. and 64. Green v. State, 21 Fla. 403, 58 Am.
frequently does, say that the presumption of Rep. 670 (1885).
regularity does not overcome the presumption
of innocence. 2 Chamb., Ev., 1228.
359 INNOCENCE. 498
question raised is as to what evidence is admissible on the subject of the con-
tinuance of life, in other words, the whole subject is one of evidence, there
being in reality, no contiict of presumptions in the matter. 05 The same fact,
in this connection, is found to possess a Tery different probative value under
varying circumstances. 66
65. Uex v. Harborne, 2 A. & E. 540, 1 66. Rex v. Harborne, supra; 2 Chamb., Ev.,
Hurl. & \V. 36, 29 E. C. L. 255 (1835). See 1231.
also, State v. Plym, 43 Minn. 38n (1890);
Howard v. State, 75 Ala. 27 (1883).
CHAPTER XVII.
ADMISSIONS: JUDICIAL.
Admissions defined, 499.
Probative force, 500.
Formal judicial admissions, 501.
form of admissions, 502.
pleadings; in same case, 503.
constituting tlie issue, 504.
deliberative facts, 505.
nae as admissions, 506.
in other cases; formation of issue, 507.
use as admissions, 508.
code pleading, 509.
law and equity, 510.
equity pleadings; answer, 511.
state and federal courts, 512.
superseded or abandoned; evidence rejected, 513
stipulations, 514.
Informal judicial admissions, 515.
form of admissions; oral; testimony by party, 516.
writings, 517.
affidavits, 518.
answers to interrogatories, 519.
depositions, 520.
Judicial admissions: by ivliom made, 521.
attorneys, 522.
probative force, 523.
formal judicial admissions conclusive, 524.
informal judicial admi&rioni constitute prima facie case, 525.
$ 499. Admissions Defined. 1 An admission may be shortly defined as a state-
ment 2 to whomsover addressed, by the party to the action against whom it is
offered, 3 or by some one for \vho<e statements, in this eonneetion, he is legally
1. 2 Chamherlayne Evidence. 1232- 5/H) et seq. ; 2 Chaml> , Ev.. 1392 et seq.
123oa. Other definitions: See 2 Chamh., Ev., 1233,
2. This definition eliminates the implied n. 1, and cases* cited.
statement as to the existence of a probative 3. fnfra, 533 et seq.; 2 Chamb., Ev.,
or res (jestrp fact arising from the acts of a 1311 et seq.
party, "admissions by conduct/' so called.
360
361
DEFINITION.
499
responsible, 4 as to the existence of a probative or res gestae 5 fact. 6 If oral,
it must be satisfactorily proved 7 by some one who heard it. 8 Admissions may
be classed as judicial or extra-judicial. The judicial admission is one made on
the record or in connection with the judicial proceedings in which it is offered.
An extra-judicial admission is one in pais, not made in court for the purposes
of the case on trial in which it is offered." " If a party has chosen to talk about
a particular matter, his statement is evidence against himself/' 10 One who
comes into court as a party is held to explain any statements he may have
made in the matter. The extra-judicial admission will readily be distin-
guished from the ordinary declaration against interest, an exception to the
rule excluding hearsay, considered elsewhere. 11
4. Infra, 539 et seq., 540 et seq.; 2
Chamb., Ev., 1329 et seq., 1337 et seq.
5. Moore v. Crosthwait, 135 Ala. 272, 33 So.
28 (1902) ; McBlain v. Edgar, Go X. J. L. 634,
48 Atl. 600 (1901) ; Hart v. Pratt, 19 Wash
560, 53 Pac. 711 (1898).
6. Confession distinguished. As distin-
guished from " admission " the term " con-
fession " will be confined to the acknowledg-
ment of guilt in a criminal case or of facts
from which guilt must necessarily be inferred.
Supra, 583; 2 Lhamh., Ev., 1476. State
v. Crowder, 41 Kan. 101. 21 Pac. 208 (1889) :
State v. Picton, 51 La. Ann. 624, 25 So. 375
(1899) : Musgrave v. State, 28 Tex. App. 57,
I S. W. 927 (1889); State v. Carr, 53 Vt.
.'{? (1880). "The term admission is usually
applied in riril transactions, and to those
matters of fact in criminal cases which do
n t involve criminal intent." People v. Ve-
larde. 59 Cal. 457 ( 1881 ) : Colburn v. Town
of C.roton, 66 X. H. 151, 22 L. R A. 763,
28 Atl 95 (1890); State v. Porter, 32 Or.
135. 49 Pac. 964 (1897). A contrary view
has been held by certain courts. Merri-
weather v. Com, 118 Ky. 870. 82 S. W. 592
(1904); Xotara v. De Kamalaris, 49 X. Y.
Supp. 216, 22 .Misc. 37 (1898) See also, 2
Chamb . Ev., 1233. n. 5.
7. Arnold v. Metropolitan L. Tns. Co., 20
Pa. Super. Ct 61 (1902): Stevens v. Equit-
able Mfg. Co., 29 Tex. Civ. App. 168. 67 S.
W. 1041 (1902) : 2 Chamb, Ev.. 1233. n. 6,
and cases cited. The exact words of the dec-
laration are not required. Xissley v Bru-
baker. 192 Pa. 388. 43 Atl. 967 H899).
Where the statement in question is made by
means of the telephone any reasonable iden-
tification of the declarant is sufficient. Lord
Electric Co v. Morrill, 178 Mass, 304, 59 N.
E. 807 (1901).
8. Chapman v. Twitchell, 37 Me. 59 (1853).
See also, Calvert v. Friebus, 48 Md. 44 ( 1878).
9. 2 Chamb., Ev., 1233. An admission
made in the course of judicial proceedings in
a case other than that in which it is offered,
though of record or in connection with judi-
cial proceedings in another case is properly
classed as extra-judicial. The conditions of
admissibility are, to a certain extent, the
same in both classes of admissions. 2
Chamb., Ev , 1293-1309; infra, 499; 2
Chamb., Ev.. 1235.
10. 2 Chamb., Ev., 1234, n. 3, and cases
cited.
11. Infra, 880 et seq.; 4 Chamb., Ev.,
2762 et seq. The following are the prin-
cipal marks of distinction, (a) The admis-
sion is the statement of a party; the declara-
tion against interest is made by a third per-
son, (b) To be admissible at all the decla-
ration against interest must contravene, to
the knowledge of the declarant, his pecuniary
or proprietary interest. In case of an admis-
sion, such a state of affairs would enhance
the probative weight, it would' not, however,
be essential to admissibility. To secure that,
it is sufficient that the statement should be
the voluntary act of the party and cover a
probative or res pester fact, (c) The declara-
tion against interest is secondary evidence
and is incompetent unless the declarant is
shown to be dead, absent from the jurisdic-
tion, or unavailable for some other sufficient
cause The admission, on the contrary, is
primary evidence and is competent though the
declarant be present in court and ready to
testify. Guy v. Hall. 3 Murph. (X. C ) 150
(1819). CONTRA: Gihblehonse v. Strong. 3
Kawle (Pa.) 437 (1832). fd) An admission
may be made at any time. Turner v. Patter-
eon, 5 Dana (Ky.) 292 (1837). The declara-
500,501 ADMISSIONS: JUDICIAL. 362
500. [Admissions] ; Probative Force. 1 - The force and effect of a judicial
admission, as well as its competency, are determined by procedural rules. On
the other hand, the probative force of an extra-judicial admission is deter-
mined by logic. Substantive law goes no further in this connection than to
determine that the existence of the statement will be received as evidence of
the fact asserted in it, 1;{ either in an action at law or in a suit in equity. 14
It will not. in this connection, be deemed material whether the extra-judicial
admission were made before or after K) suit is brought. They are rated en-
tirely at their logical value. Logic may have its appropriate effect in case of
the judicial admission when used as probatio rather than as lecamen proba-
tionis. When used as proof, the more deliberate and, as it is said, solemn,
nature of the circumstances under which the judicial admission is made may
confer upon it a probative force not characteristic of the average extra-judicial
admission. 1 "
501. Formal Judicial Admissions. 17 A formal judicial admission is rather
part of the procedure of the trial than in any way connected with the making
of proof. Not only in actions conducted according to the course of the com-
mon law, but in special ls or statutory proceedings, as those of bankruptcy 1!
or probate, 20 may such formal judicial admissions be made. Exhibiting such
an admission to the tribunal is not to produce proof. It is not even to prove
a prima facie case. It is final, conclusive, irrebutable by evidence. It is a
fact to which procedure assigns a definite value.
Levamen Probalionis. A formal judicial admission in a pleading stipula-
tion, or by statement in open court, if authorized, is a complete leva-men >>ro-
bationis. That was precisely the object for which it was made, to substitute
the statement for evidence of the fact covered by it. 21
tion against interest is incompetent if made 16. Kirkpatrick v. Metropolitan St. Ry. Co.,
pout iitem motatn. (e) The admissibility of 211 Mo. <>8, 10!) S. \V. (\*1 (190S).
a declaration against interest is governed liy 17. 2 Chamberlayne, Evidence, 501.
the rules of sound reason. That of the admis- 18. McRainy v. Clark, 4 X. C. 698 ( 1818) ;
sion is determined largely by procedure. 2 Brown v. Moore, 6 Yerg. (Tenn. ) 272 (1834).
Cham!)., Ev., 1235. 19. Dupuy v. Harris, 6 B. Mon. (Ky.) 534
12.2 Chamberlayne, Evidence. 1236, ( 1846) ; Lyon v. Phillips, 106 Pa. 57 (1884) ;
1237 Rankin v. Bushby (Tex. Civ. App. 1894), 25
13. Roche v. Llewellyn Ironworks Co.. 140 8. W. 678.
Cal. 563, 74 Pac. 147 (1903); Powers v. 20. Beal v. State, 77 1ml. 231 (1881);
Powers, 25 Ky. L. Rep. 1468. 78 S W. 152 State v. Richardson, 29 Mo. App. 595 (1888);
11904) : Wilson v. WiWm, 137 Pa 269, 20 Potter v. Ogden, 136 X. Y. 384, 33 X. E. 228
Atl. 644 (1890) ; 2 Chamh., Ev ., 1236, n. 1. (1893) ; 2 Chamb., Ev., 1238, n. 3. and cases
and cases cited. cited.
14. Brandon v. Cabiness, 10 Ala. 155 21. Chouteau Land & Lumber Co. v. Chris-
(1846); Smith v. Burnham, 2 Sumn. (U.S.) man, 204 Mo 371, 102 S. W. 973 (1907).
612 (1837). Tn like manner and for the same reasons, a
15. Marshall v. Sheridan, 10 Serg. & R confession of judgment for a portion of the
(Pa.) 268 i 1823) ; Morris v. Vanderen, 1 Dall. amount claimed is a judicial admission of the
(U.S.) 64 (1782). plaintiff's right of action and constitutes
363 FORMAL. 501
Control of Court. But the admitting party is not necessarily precluded
by it. The entire matter is within the administrative function of the court. 22
If an admission has been made imprudently and by mistake, the court may
relieve parties from the consequences of their mistake, by allowing them to
withdraw the admission ; - 3 or they may be allowed to alter the admissions con-
tained in their pleadings, by an amendment. But until the court exercises
its administrative power to permit it, which will be done with caution, 24 a
formal judicial admission constitutes a controlling fact in the case, binding
upon parties 2i> and the court - li alike. While a party is at liberty to tender a
formal judicial admission to his adversary, neither of the litigants can be
compelled in a civil case to accept the offer. 27 Nor can the government, 28 or
defendant in a criminal case be required to forego, without good administra-
tive reasons, the advantages in proving a case in a complete and orderly
manner. 29
Limitations Upon Effect. The effect of a formal judicial admission is
limited to the purposes of the pending trial and, if so worded, 30 to those of
additional trials, 51 or proceedings, if any, growing out of or otherwise con-
nected with the principal case. 32 Unless extended by its terms to later cases,
it then becomes simply a statement which the party has made and which is to
be weighed solely upon the basis of logic, by determining how justifiable or
necessary is the inference that the party made the declaration because it was
true. 33 When thus considered the circumstances under which the judicial ad-
complete proof against the party making it. People v. Thomson, 103 Mich. 80, 61 X. \Y.
The Citi/ens Light & Power Co. v St. Louis, 345 (1894).
34 Can. S. C. H. 4!>5 (1004). 2 Chamb., Ev., 29. Dunning v. Maine Cent. R. Co., supra;
1-23!'. Whiteside v. Lowney, supr'i.
22. .v H /;/, $ 72 et seq.; 1 Chamb., Ev., Under Code pleading, the formal judicial
174 et seq.: I'restwood v. Watson, 111 Ala. admission of the earlier type of pleading may
(504. 20 So. i()0 t 1895) ; Holley v. Young, 68 be resolved into a statement of fact to which
Me. 215. 28 Am. Kep. 40 (1878); 2 Chamb., will be accorded practically the force of an
Ev.. 1240. n 1, and cases cited. extra-judicial admission. So regarded, the
23. Hays v. Hynds, 28 Ind. 531 (1867); same ruling may be applied to it as to other
Cutler v. Cutler. 1:50 X. C. 1, 40 S. E. 689, extra-judicial admissions, to wit, that in the
89 Am. St. Rep. 854, .17 L. R. A. 209 ( 1902) : absence of an estoppel the declarant may ex-
2 Chamb., Ev., 1240, n. 2, and cases cited. plain or even controvert the truth of his dec-
24. Prestwood v. Watson, supra ; Holley v. laration. Dressner v. Manhattan Delivery
Young, supra. Co.. 92 X. Y. Supp. 800 (1905).
25. Id. : Thompson v. Thompson, 9 Tnd. 323. 30. Central Branch Union, etc.. R. Co. v.
IN Am Dec. 038 (1857) : Waldron v. Wald- Shoup, 28 Kan. 394, 42 Am. Rep. 163 (1882) ;
ron, 156 U. S. 361. 15 8. Ct. 383, 39 L. ed. 453 Yoisin v. Commercial Mut. Ins. Co., 07 Hun
I 1 895 i. 365. 22 X. Y. Supp. 348 (1893); 2 Chamb.,
26. Urquhart v. Butterfield, 37. Ch. D. 357, Ev.. 1241, n. 1. and cases cited.
57 L. .T. Ch. 521 (1888). 31. Home Tns. Co. v. Field. 53 Til. App. 119
27. Jones v. Downs. 82 Conn. 33. 72 Atl. (1893); Elwood v. Lannon, 27 Md. 200
589 H909): Dunning v. Maine Cent. R. Co., (1867); 2 Chamb., Ev., 1241, n. 2, and
91 Me. 87. 39 Atl. 352, 64 Am. St. Rep. 208 cases cited.
(1897) : Whiteside v. Lowney, 171 Mass. 431, 32. Shipman v. Haynes. 15 La. 363
50 X. E. 931 (189SK (1840).
28. Com. v. Costello, 120 Mass. 358 (1876) ; 33. Phillips v. Middlesex County, 127 Mass.
^ 502,503 ADMISSIONS: JUDICIAL. 364
mission was made may be such as to deprive it of all force whatever. 34 The
general rule is that unless such admissions are closely identified with the
party 30 or expressly ratified by him, 3 " their operation will not be extended to
other cases, by implication. 37 It follows that where a person not sui juris is
represented in court, the formal judicial admission made for him by one acting
in a representative capacity, as guardian ad lit em* 8 while sufficient for the
purposes of the case, will not affect the person under guardianship in another
action. Nor will such an admission continue to operate in the case itself after
having been withdrawn. 39
Canons of Construction. Judicial admissions should receive a reasonable
construction. 4 " The rule has even been stated to be that where the concession
of counsel is ambiguous, its meaning should be determined by the party who
made it. 41 Where fair play requires it, as where reliance has justifiably been
placed upon a concession, it may be construed most strongly against the ad-
mitting party. 42
502. [Admissions] ; Form of Admissions. 43 While formal judicial admis-
sions are most frequently made in writing, as in confessions of judgment, 44
pleadings, 45 stipulations, 40 and the like, the admission, though formal, may
with equal effect be made orally; as where formal proof is waived in open
court, ore tenus, 41 or the defendant in a criminal case pleads guilty. 48
503. [Admissions]; Pleadings; In Same Case The allegations of a plead-
ing are considered, (1) as constituting the issue in the case and (2) as inde-
pendently and probatively relevant, i.e., as furnishing per se deliberative facts
from which inferences may rationally be drawn and, (3) in its assertive capac-
ity, i.e., when viewed as an admission. 49
262 (1870); Potter v. Ojrden, supra; 2 turns. Hoffman v. Bloomsburg, etc., R. Co.,
Charal)., Ev, 1241, n 4, and cases cited. 143 Pa. 503, 22 Atl. 823 (1891).
34. Dawson v. Schloss, 93 Cal. 194, 29 Pac. 41. Wright v. Dickinson (Mich. 1889), 42
31 (1892); Adee v. Howe, 15 Hun ( X. Y.) X. W. 849.
20 (1878); Weisbrod v Chicago, etc., R Co.. 42. Scammon v. Scammon, 33 N. H. 52
20 Wis 419 (1866). (1856). An admission may be construed by
35. Haller v \\orman, 3 L. T. Rep. ( N. S.) the acts of the parties. Akers v. Overbeck,
741 (1S61). 41 N. Y. Supp. 3S2, IS Misc. 198 (18961.
36. Xichols, etc., Co. v Jones, 32 Mo. App. 43. 2 Chamberlayne, Evidence, 1243.
657 (1888). 44. Earnest v. Hoskins. 100 Pa 551 (1882)
37. Hardin v. Eorsythe, 99 111. 312 (1880) ; 45. Infra : 2 Chamb , Ev., 1244 et seq.
McKinney v Salem, 77 Tnd 213 (1881) ; Cut- 46. Infra. 514 et sec/.; 2 Chamb. Ev.,
ler v. Cutler, supra. 1261 et seq.
38. Finn v. Hempstead, 24 Ark 111 47. Waldron v. Waldron. 156 U S. 361,
(1863) : lliatt v. Brooks. 11 Ind 508 (1858). 15 S Ct. 383, 39 L. ed 453 (1895).
39. Geraty v Xational Ice Co. 44 X Y. 48. Com. v. Avers, 115 Mass 137 (1874):
Supp 650. 16 App Div 174 (1807) Meyers v. Dillon, 39 Or 581. 65 Pac. 867. 66
40. Thus, it will not be assumed, without Pac. 814 (1901): 2 Chamb., Ev., 1243, n.
strong reason, that an admission by counsel 5, and cases cited; see post, 525a.
covers the point on which the entire case 49. See discussion of the distinctions made
in 2 Chamb , Ev., 1244.
365 PLEADINGS.
504. [Admissions; Pleadings]; Constituting the Issue. 50 The actual or
constructive 51 admissions contained in a pleading, 52 so far as determinative
of the issues, are without probative value. 53 Such allegations, therefore, can-
not be read in evidence as proof of facts. 54 It is in this sense that the phrase
lk pleadings are not evidence " is true. They are merely part of the pro-
cedure of the trial and though conclusive until changed by amendment 55 of the
issue, possess no logical or probative value. This issue the court notices
though the pleadings are not formally introduced into evidence. 5 " For sim-
ilar reasons, no use can be made of the allegations of one pleading upon the
issue raised by another, though the latter be tiled in the same action. 57
505. [Admissions; Pleadings]; Deliberative Facts. 58 The allegation in a
pleading may throw important light upon the good faith of a party. The fact
that a particular claim or denial 59 is or is not made at a particular time may
be a ^iguiticaut, independently relevant circumstance in itself considered, 00
except so far as it shall appear that the statements are substantially the work
of counsel. 01
506. [Admissions; Pleadings]; Use as Admissions. 62 The persoualitv of a
party may, however, shine through the pleadings 3 in the form of a definite
statement of fact, apparently asserted for no controlling forensic reason" 4 but
relied on because it is true or claimed to be so by the party himself." 5 Declara-
tions of the latter class are evidentiary in an assertive capacity, as admissions
50. 2 Chamberlayne, Evidence, 1245 meaning and to instruct the jury accordingly
51. Lee v. Heath, 61 X. ,1. L. 250, 39 Atl Tisdale v. Delaware & Hudson Canal Co, 116
729 (185)7) ; Starkweather v. Kittle, 17 Wend. X. Y. 416, 411), 22 X E. 700 (1S89). Admis-
(X. Y. ) 20 (1837). sions are to be taken as a whole Hensel v.
52. The writ may be regarded as a pleading Holfman, 74 Xeb. 382, 104 V \V 603 ( 1903).
within the rule Southern R. Co. v. Mayes, 58. 2 Chamberlayne. Evidence, 1246.
113 Fed. 84, 51 C. C. A. 70 (1902) 59. Roscoe Dumber Co v. Standard Silica
53. Colter v. Calloway, 68 hid. 219 (1879); Co., 70 X. Y. Supp. 1130. 62 App. Div. 421
Shipley v. Ueasoner. 87 Iowa 555. 54 X. W. (1901) ; Tisdale v. D. & H. Canal Co. supra.
470 (1893) ; Holmes v. Jones. 121 X. Y. 461. 60. Infra, 837 et seq.; 4 Chamb., Ev.,
466. 24 X E 701 (1890): 2 Chamb., Ev.. 2574 et seq.
1245, n. 4. and cases cited 61. Larry v Herrick, 58 X. H. 40 (1876) ;
54. Craig v. Burris. 4 Pen (Del.) 156. 55 Baldwin v. Gregg, 13 Mete (Mass.) 253
Atl. 353 (1002) I1S47) : 2 Chamb. Ev., 1246
55. Brooks v. Brooks. 90 X C 142 MSH) 62. 2 Chamherlayne. Evidence. 1247.
56. Colter v. Calloway. supra; Woodworth 63. Aultman v. Martin. 49 Xeb. 103, 68 N.
v Thompson. 44 Xeb. 311. 62 X \Y. 450 \Y. 340 (1896); International, etc., R. Co. v.
(1895); Holmes v. Jones, supra Mulliken, 10 Tex. Civ App. 663. 32 S. W.
57. Craig v. Burris, supra: Kimball v. Bel 152 M895).
lows. 13 X'. H. 58 (1S42); Gattis v. Kilgo. 64. Howard v. Glenn. 85 Ga. 238. 11 S. E.
128 X. C. 402. 38 S E 931 (1901 ) -. 2 Chaml).. 610. 21 Am St. Rep 156 (1890) : Sims v. La
Ev, 1245, n 8. and cases cited. Tf counsel Prairie Mut F. Ins Co . 101 Wis. 586, 77
do not agree as to the construction of the X*. \V. 908 (1899).
pleadings, a question of law is presented, and 65. Johnson v Zufeldt. 56 Wash. 5, 184
it becomes the duty of the court to construe Pac. 1132 (1909) . Pence v. Sweeney, 3 Tda.
them, to determine their legal effect and 181. 28 Pac. 413 (1891).
507,508 ADMISSIONS: JUDICIAL. 366
and may be used by the opposing party,' 5 " unless otherwise provided by stat-
ute, (i7 011 any issue to which the evidence of the fact stated is relevant. 08 Good
faith to the party whose declarations are used requires that the entire state-
ment be introduced in evidence, not garbled by the omission of qualifying
declarations."'* This, however, is the limit of the right.
Adminixlratice Details. It is not material whether the declarant is plain-
tiff ' u or defendant; (1 whether the statement is offered on the original or any
subsequent ' 2 hearing of the cause or on proceedings in an appellate court. 73
.Nor is it important whether the pleadings are in abatement 74 or in bar or,
indeed, whether they are still pleadings in the case at all. 75
507. [Admissions; Pleadings]; In Other Cases; Formation of Issue. 76 So
far as the declaration in question has been made on account of its desirability
for formulating a particular issue, the statement in a forrnar pleading is
functus officio |T and of no further procedural validity in any subsequent
508. [Pleadings] ; Use as Admissions. 80 Unlike its procedural effect, the
probative element, if any, contained in an allegation of a pleading, is inherent
and goes with it under all circumstances, subject to retraction 81 and the ex-
planations <;f inadvertence, lack of knowledge and the like. 82 The formal
judicial admission so far as it represents the actual or endorsed statement of
66. Lynch v Chicago & A. Ry. Co., 208 Mo. 73. Warder, etc., Co. v. Willyard, 46 Minn.
1, 106 S- \V. 68 (1907); White v. Smith, 46 531, 40 X. W. 300, 24 Am St. Rep.' 250
N. Y. 41S I J871) ; Lindsay v. Button, 227 Pa. (1801) ; Folger v. Boyington, 67 Wis. 447, 30
208, 75 Atl. 1006 (1010); 2 Chamb., Ev., ,\. W. 715 (1886).
1247, n. 4, and cases cited. 74. Witmer v. Schlatter, 2 Rawle (Pa.)
67. Taft v. Fiske, 140 Mass. 250, 5 N. E. 359 (1830)
621 (1885) 75. Hastings v. Speer, 15 Pa. Super. Ct. 115
68. Miles v. Woodward. 115 Cal. 308, 46 (1900).
Pac. 1076 (H96): Blackington v. Johnson. 76. 2 Chamberlayne, Evidence, 1248.
126 Mass 21 ( 1878) ; 2 Chamb., Ev., 1247, 77. Starkweather v. Converse, 17 Wend
n. 6, and cases cited. I N. Y.) 20 (1837).
69. Granite (Jold Min. Co v. Maginness, 78. Boileau v. Rutlin, 2 Exch. 605 (1848);
118 Cal. 131, 50 Pac. 269 (1897); Shrady v. 2 Chamb., Ev., 124S. n 3, and cases cited.
Shrady, 58 N Y. Supp. 546, 42 App. Div. 9 For some consideration of the probative effect
(1800) ; 2 Chamb., Ev., 1247, n 7, and cases of the claims or denials made in pleadings
cited. as bearing upon the question of good faith,
70. Kankakee, etc , R. Co v. Horan, 131 see Admissions by Conduct, infra, 550 et
Til. 288, 23 X E 621 (1890); Lee v. Heath, seq. ; 2 Chamb., Ev . 1392 et seq.; see
61 N. J. L. 250, 30 Atl. 729 (1807) : Clemens also, 505, supra; 2 Chamb., Ev., 1246.
V Clemens, 28 Wis 637, 9 Am Rep. 520 80. 2 Chamberlayne, Evidence, 1249-
(1871) ; 2 Chamb., Ev , 1247, n. 0, and cases 1251.
cited. 81. Perry v. Simpson Waterproof Mfg. Co.,
71. Farley v. O'Malley. 77 Iowa 531, 42 40 Conn. 313 ( 1873) ; Stowe v. Bishop, 58 Vt.
N. W 7 . 435 (1889); Breese v. Graves, 73 N. 498 (1886).
V. Supp. 167, 67 App. Div. 322 (1901)'; 2 82. Smith v. Fowler, 12 Lea (Tenn.) 163
< hamb., Ev.. 1247, n. 10, and cases cited. (1883) ; Buzard v. McAnulty, 77 Tex. 438
72. Spurlock v. Missouri, etc., R. Co., 125 (1890).
Mo. 404, 28 S. W. 634 (1894).
367 PLEADINGS. 508
the party himself 8:! is competent in another case as an extra-judicial admis-
sion, in other words, a pleading may contain the admission of the party
which is competent in any subsequent cause s4 when properly introduced in
evidence. 86 I nder these circumstances, a statement possesses the probative
force of an extra-judicial admission and is subject to the rules of procedure or
canons of administration applicable to statements of this class. 80 For he
same pervasive reason that a party is accountable for his statements, it is held
to be not in the least necessary that the litigant offering the declaration should
have had any connection with the suit in which the pleading was tiled.* T
Conditions of Admissibility. The essential conditions of admissibility in
case of a prior pleading regarded as an extra-judicial admission are therefore
two. (a) The statement offered must be made by a party to the suit in which
it is tendered. ss (1>) The declaration must have been, when originally made,
that of the party himself, based upon his personal knowledge; it must, in some
way. to use a common but expressive phrase, " be brought home " to the party.
The agency of counsel, for the purposes of the case in which the statement is
made, may very properly bind the client for the time being,*" but. outside the
ca*e. the latter is affected only by his own statements, those which he personally
makes as and because he believes them to be true ' J0 or which for the same
reason, he states through his counsel. 1 ' 1
Cicil and Criminal Canes. it is not material that the pleading offered in
83. Solari v. Snow, 101 Cal. 387. 35 Pac. (1908) ; 2 Chamb., Ev., 1249, n. 7, and cases
1(104 (]8!>4i : Long v. Lawson. 7 Ga. App. cited. That the pleading was tiled in a dif-
401, 67 S. E 124 (15110). See also, Stone v. ferent jurisdiction is not regarded as mate-
Corn., 181 Mass. 438, (i3 N. E. 1074 (1002): rial. Kirkpatrick v. Metropolitan St. Ry.
Starkweather v. Converse, supra ; 2 Cliamb., Co.. supra.
Kv.,' 124!), n. 3, and cases cited. 88. Infra, 533 et seq.: 2 Chamb.. Ev.,
84. Gardner v. Meeker. 16<> 111. 40. 48 X. E. 1310 et seq.
307 (1897) : Smith v. Paul Boyton Co.,' 17(i 89. Ayres v. Hartford V. Ins. Co.. 17 Iowa
Mass. 217. 57 X. E. 307 (1900)': Paxton v. 170, 35 Am. Dec. 553 (18(54): Dow/elot v.
State, 60 Xeb. 7U3, S4 X. W. 254 (1900): Rawlings, 58 Mo. 75 (1874 I.
Hutchins v. Van Vechten. 140 X. Y 115, 35 90. Duff v. Duff. 71 Cal. 513, 12 Pac. 570
X. K. 446 (1893) -. Limerick v. Lee. 17 Okl. (1886) : Tague v. John Caplice Co.. 28 Mont.
165, 87 Pac. 859 (1906); 2 Chamb.. Ev.. 51, 72 Pac. 297 (1903): Cook v. Burr. 44
1249. n . 4. and cases cited. X. Y. 156 (1870) : 2 Chamb.. Ev., 1250, n.
85. Greenville v. Old Dominion Steamship 3, and cases cited.
Co., 104 X. C. 91. 10 S. E. 147 (1889): 2 91. Johnson v. Russell. 144 Mass 409. 11
Chamb.. Ev.. 1249. n . 5. and cases cited. X. E. 670 (1887) It follows that a party's
86. Murphy v. Hindman. 58 Kan. 1S4. 48 judicial admissions do not bind his codefend-
Pac. 850 (1897): Rich v. Minneapolis. -10 ant, in another case. McDermott v. Mitchell,
Minn. 82. 41 X. VT. l.v, (1889): Whitcher v. 47 Cal. 249 (1874): Lunday v. Thomas. 2fi
Morey. 39 Vt. 459 (1867): C'lemens v. Clem- Ga. 537 (1858). That they must be clear and*
ens. supra; 2 Chamb., Ev.. 1249. n. 6, and definite, upon knowledge HTartin v. Camp-
cases cited. bell, 11 Rich. En. (S. C.) 205 (1860)1 and not
87. Booth v. Lenox. 45 Fla. 191. 34 So. 566 proceed from information and belief [Xew
(1903) : Kirkpatrick v. Metropolitan St. Ry. iork v. Fay. 53 Hun 553. 6 X'. Y. ^upp. 400
Co., 211 Mo. 68, 109 S. W. 682 (190*) ; Floyd (1889)] is established also. 2 Chamb., Ev.,
v. Kulp Lumber Co., 222 Pa. 257. 71 Atl. 13 1250. n. 7, and cases cited.
509-511 ADMISSIONS: JUDICIAL. 368
a civil case was originally filed in a criminal prosecution, 92 although the pleas
of guilty y3 or nolo contendcre 94 more closely resemble admissions by conduct 05
and are, in effect, merely circumstantial evidence, not relevant upon a subse-
quent trial.
509. Code Pleading. 96 The system of " Code pleading," so called, by
the close assimilation of its rules to those of equity has materially affected
the relative importance of the rules of equity and common law pleading,
at the expense of the latter. Under such a system the allegations of the pleader,
more particularly those contained in the answer, 97 may well be more readily
regarded as requiring less of the technical skill of counsel and correspondingly
more of the actual knowledge and statement of the party. 98 The most obvious
effect of the adoption of equity instead of common law pleading for use in jury
trials is to increase the field of evidence in the case of pleadings, at the expense
of that of procedure, making the allegations of a pleading of comparatively
trifling effect in forming an issue when compared to their operation as admis-
sions."
510. [Pleadings] ; Law and Equity. 1 The probative quality of the state-
ment being inherent, and independent of particular conditions, other than
tha.t it should have been made by a present party, it is immaterial that a state-
ment tendered in an action at law was originally made in a bill in equity, 2
answer in chancery 3 or other equitable pleadings, 4 or that the admission
offered in a trial in equity was originally made in the pleadings of an action
at law.
511. Equity Pleadings; Answer. 5 An answer to a bill in equity presents
the personal actual admissions of the party, in contradistinction to the con-
structive admission of the common law in failing to deny the allegations of the
previous pleading. The statements contained in the sworn answer of the de-
fendant have therefore been customarily received 'as his admissions, as that
term is understood in the law of evidence. 6 The rule is the same whether the
bill was for relief or discovery. 7
92. Birchard v. Booth, 4 Wis. 67 (1885). Buzard v. McAnulty, 77 Tex. 4,38, 14 S. W.
93. Young v Copple, 52 111. App. 547 1.38 (1890); 2 Chamb., Ev , 125.3, n. I, and
(180.3); State v. Bowe, 61 Me. 171 (187.3): cases cited.
2 Chamb., Ev., 1251, n. 2, and cases cited. 3. Printup v. Patton. 91 Ga. 422 (1893) ;
94. White v Creamer, 175 Mass. 567, 56 Radclyffe v. Barton, 161 Mass. .327 (1894).
N. E 8.32 (1900) ; State v. LaRose, 71 N. H. 4. Lowney v Perham, 20 Me. 2.35 (1841).
435. 52 Atl. !)43 (1902). 5.2 Chamberlayne, Evidence, 1254,
95. Infra, 559 et seq ; 2 Chamb., Ev., 1255.
1392 et seq.; see post, 525a. 6. Robbins v. Butler, 24 111. 387. 427
96. 2 Chamberlayne. Evidence, 1252. (I860); Broadnp v. Woodman. 27 Ohio St.
97. Boots v. Canine. 94 Ind. 408 (1883). 553 (1875) : 2 Chamb., Ev., 1254, n. 1, and
98. Id. cases cited.
99. 2 Chamb.. Ev.. 1252 7. Judd v. Gibbs, 3 Gray (Mass.) 539
1. 2 Chamberlayne. Evidence. 125.3. (1855).
2. Callan v. McDaniel, 72 Ala. 96 (1882);
369 PLKADIXC..S. 512,513
Bill. It is natural that statements in bills of equity, which are most often
the work of counsel, are deemed of less probative value/ than those contained
in the answer w which is more directly moulded by information derived di-
rectly from the client. The bill in equity, while at tirst regarded in much the
same light as the answer, 1 " and consequently as containing statements avail-
able as the admissions of the complainant, became, with the growth of equity
practice, subject to a radical change. Formal and comprehensive charges, not
in fact known to be true or relied on by the complainant as actually existing
were gravely advanced with limitations imposed, not by the knowledge or
conscience of the client but by the ingenuity and resourcefulness of his coun-
sel. 11 With no semblance of fairness could such a pleading be held to contain
the personal admission of the complainant. 12
512. [Pleadings] ; State and Federal Courts. Statements used in a plead-
ing in a federal court may do service as admissions in a state court and the
reverse is equally true. 13
513. [Pleadings]; Superseded or Abandoned; Evidence Rejected. 14 While
a party is no longer bound by pleadings which have been superseded by amend-
ment, or otherwise, as pleadings in the case 15 he is still affected by the state-
ments contained in them lfi as extra-judicial admissions, 17 so far as they can
fairly be considered as being his own. 18 Many important considerations have
influenced certain courts to hold that except where some special connection 19
has been shown to exist between a party and a superseded 2 "or abandoned 21
8. Miller v. Chrisman, 25 111. 209 (1861): 332, 90 X E. 721 (1910): Meriwether v.
Rankin v. Maxwell, 2 A. K. Marsh ( Ky ) Publishers: Geo. Knapp & Co. 224 Mo. 617,
488, 12 Am. Dec. 431 (1820). 123 S. W 1100 (1909) : Fogg v. Edwards. 20
9. Doe v. Steel, 3 Campb. 115. 13 Rev. Rep. Hun (X. Y.) 90 (1880): 2 Chamb., Ev.,
768 (1811). 1257, n. 2, and cases cited.
10. Snow v. Phillips. 1 Sid 220 (1065). 17. McDonald v Nugent, 122 Iowa 651, 89
11. Adams v. McMillan. 7 Port (Ala.) 73 ->. \V. 506 (1904) : Watt v. Missouri. K & T
(1838): Rankin v. Maxwell, supra: 2 Chamb., Ry. Co, 82 Kan. 458, 108 Pac 811 (1910):
Ev., 1255. n. 4, and cases cited O'Connell v E. C. King & Son. 26 R. I. 544,
12. Lamar v. Pearre, 90 Ga. 377, 17 S. E. 59 Atl. 926 (1905): 2 Chamb., Ev.. 1257,
92 (1892) ; Elliot v. Hayden. 104 Mass. 180 n. 3, and cases cited.
(1870) ; 2 Chamb., Ev., 1255, n. 5, and cases 18. Burns v. Maltby, 43 Minn. 161, 45 N.
cited. CONTRA: Schmisseur v. Beatrie, 147 W. 3 (1890); Southern Pac. Co. v. Welling-
111. 210, 35 N. E. 525 (1893). ton (Tex. Civ. App. 1900), 57 S. W. 856;
13. Kankakee, etc., Ry. Co. v. Horan. 131 2 Chamb . Ev., 1257, n. 4. and cases cited.
111. 288, 23 N. E. 621 (1890) ; 2 Chamb.. Ev % 19. Pfister v. Wade, 69 Cal 133, 10 Pac.
1256. 369 (1886): Barrett v. Featherstone, 89 Tex.
14. 2 ChamberTayne, Evidence, 1257*- 567. 35 S. W. 11, 36 S. W. 245 (1896).
1260. 20. Miles v. Woodward, 115 Cal. 308, 46
15. Boots v. Canine. 94 Tnd. 408 (1883): Pac. 1076 (1896) : Corley v. McKeag. 9 Mo.
Woodworth v. Thompson, 44 Neb. 311. 62 N. App. 38 (1880) ; 2 Chamb., Ev., 1257, n. 12,
W. 459 (1895): Strong v. Dwijrht. 11 Abb. and cases cited.
Pr. N. S. (N. Y.) 319 (1871) ; 2 Chamb., Ev., 21. Murphy v. St. Louis, etc.. R. Co., 91
1257. n. 1, and cases cited. Ark. 159, 122 S. W. 636 (1909); McDonald
16. Bartlow v. Chicago, etc., R. Co., 243 111.
513
ADMISSIONS : JUDICIAL.
370
pleading, his statements contained in them will not affect him ; either in the
same case, 22 or on a retrial of it, or in any other judicial proceeding. 23
Evidence Admitted. Other weighty considerations have induced other tri-
bunals to hold that, unless the party objecting to the contemplated use of his
statement can affirmatively bhow not only that he did not authorize it, 24 and
that he never informed his legal \idviser to the effect which the latter has
pleaded, 2 '"' but, further, that he at no time knew that the latter had pleaded as
he has actually done, 2<i the allegations of the former pleading will be received
as the admission of the party, 2 ' to be given such weight as the jury may see tit
to accord it. 28 The statement is admissible against the party even when
offered in another case. 29
Minor Details. It is not material that the pleading in question has been
removed from the files ;i " or has not been tiled at all, provided a tiual determi-
nation to do so has been reached; 31 nor what disposition was made of the case.' 52
The superseded or amended pleading in one of two ways: (1) as an admission
of the party, tending to prove the fact asserted or (i } ) as a fact, the existence
of which is inconsistent with his present position. 33
Verification by Oath, Etc. In general, in any form of proceeding, the fact
that a party has seen tit to swear to the truth of certain allegations," 4 or to
verify them by his signature, 35 tends to show that the statements are made upon
the personal knowledge or responsibility of the party. When an unverified
v. Nugent, supra; 2 Chamb., Ev., 1257, n.
13, and cases cited.
22. Mahoney v. Hardware Co., 19 Mont.
377, 48 Pac. 545 (1897)
23. Demelman v. Burton, 176 Mass. 303.
57 X. E. 065 (1900); Woodworth v. Thomp-
son, supra; Folger v. Boyington, 67 Wis. 447,
30 N. W. 715 (1886) ; 2 Chamb.. Ev.. 1257,
n. 15, and cases cited. For a statement of
the considerations which have influenced the
courts, see: 2 Chamb., Ev., 1257, and cases
cited in notes 5-10: Wenegar v. Bollenliach.
180 111 222, 54 X. E. 192 (1899); Taft v.
Fiske, 140 Mass. 250. 5 X E 621 (1885).
24 Anderson v. Me Pike, 86 Mo. 29.1
(18*5); Galloway v Antonio, etc, E. Co.
(Tex Civ App. 1903). 78 S. W. 32
25 Galloway v Antonio, etc., T\. Co..
supra.
26. U. See also, Baldwin v Siddons. 46
Ind. App. 313, 92 X. E 349 M910) -. Ber-
nard v Pittsbunr Coal Co.. 137 Midi. 279. 11
Detroit Leg X. 246. TOO X W. 396 M004)
27. O'Connor's Estate. 118 Cal. 69. 50 Pac.
4 (1897): Alabama M. P,. Co. v. Ouilford.
114 'in. 627. 40 S F 794 (1902): Walser v
VTeHr 141 Mo 443 42 S YV. 928 (i^97i-
Breese v Graves, 73 X. i. Supp. 167, 67
App. Div. 322 (1901) : 2 Chamb.. Ev., 1258,
n 7, and cases cited.
28. Willis v To/er, 44 S. C. 1, 21 S. E.
617 (1894).
29. Meriwetber v. Publishers, etc., supra.
For the reasons upon which these decisions
are based, see: 2 Chamb.. Ev., 1258. notes
'], 2, 3: Boots v. Canine, supra; Keller v.
Morton, 117X Y Supp 200. 63 Misc. 340
(1909) : Folger v. Boyinton, supra
30. Daub v. Englebach. 109 111 267 (1884).
31. Matson v. Melchor. 42 Mich. 477. 4 X
W. 200 (1880).
32. Starns v. Hadnot, 45 La. Ann. 318, 12
So. 561 (1893) : Gordon v. Parmelee, 2 Allen
(Mass ) 212 (1861 ).
33. In re O'Conner, 118 Cal 69. 50 Pac 4
(1897) : Folger v. Boyinton. 67 V\ is. 447. 30
V \V. 715 (1886) : 2 Chamb.. Ev.. 1259. n
4,_ and cases cited A statute may be such in
terms as to exclude their use for purposes
even of impeachment. Taft v. Fiske, supra.
34. Solomon P.. Co v. .Tones. 30 Kan. 601.
2 Pac. 657 (1883): Pope v. Alii*. 115 U. S.
363 (1885) : 2 Chamb.. Ev.. 1260. n 2. and
cases cited.
35 Central Bridjre Corp. v. Lowell, In Gray
(Mass.) 106 (1860) ; Cook v. Barr, 44 N. Y.
371 FORM. 514,515
pleading is offered, the tendency of modern decisions is to reject the evi-
dence.""
514. Formal Judicial Admissions; Form of Admission; Stipulations. 37
Stipulations may cover a variety of subjects, by way of waiving proof ;!s and
when executed within the- professional function of the attorney :{!( bind the
client, in the case where tiled, or any rehearing of the cause, 40 unless entered
into for some special and temporary purpose, 41 or specifically limited so as to
possess, by express terms, a different effect. 42 Xo limitation, however, is
implied. 43 Stipulations may be effectively made at any time during the
course of the employment of the attorney who executes them, either before 44
or after the joining of issue.
In Other Caxcx. When a "case stated" or other declarations of a stipula-
tion are offered as admissions of the litigant 45 in any case other than that in
which the agreement was made 41 ' or in the same case after it has been with-
drawn, 47 admissibility is to be determined by the test whether the statement is
a personal declaration of the party himself, 48 or made by his counsel under the
client's immediate direction. 4 " as aud because it was true. 50 Otherwise, it
will be rejected when offered in evidence in a subsequent case. 1 ' 1 The statement
may be explained, qualified or controlled by the party at all times. 5 -
515. Informal Judicial Admissions. 53 Under the general denomination of
informal judicial admissions may be grouped statements of probative or res
ycstuc facts made by a party in course of proceedings in court, as a witness, a
deponent, an affiant or in any similar connection/' 4 They are classed as judi-
cial simply because made in the course of judicial proceedings by one who was
156 (1870) ; 2 Chamb.. Kv.. 1200. n. 3. and 40 Conn. 31.3 (1873) : Luther v. Clay, supra.
eases cited. 43. Luther v. Clay, supra ; Central Branch
36. Delaware County Com'rs v. Diebold S. Union Pao. R. Co v. Shoup, supra.
& L. Co.. 1:53 U. S. 47:). 4S7. 10 S. Ct. 309 44. Jones v. Clark, 37 Iowa 58G (1873).
ilSOO). 45. Elting v. Scott, 2 Johns. ( N T . Y.) 157
3". -2 Clmmberlayne. Evidence. 1261, (1807).
1262. . 46. Luther v. Clay, supra ; Isahelle v. Iron
38. Luther v. Clay. 100 (ia. 236. 28 S. E. Cliffs Co.. 57 Mich. 120. 23 X W. 613 (1885).
46. 3!i L. I? A. 05 il8!)(i). 47. King v Shepard : 105 Ga. 473, 30 S. E.
39. Prestwood v. Watson. Ill Ala 604. 20 634 (1S08>.
So. 600 H805) : Virginia-Carolina Chemical 48. Isabelle v. Iron Cliffs Co.. supra
Co v. Kirven. 130 X. C. 161, 41 S. E 1 49. Id.: Xichols v. Jones. 32 Mo. App. 657
(1002) : 2 Chamb.. Ev.. 1261. n 2. and cases (1888) : Ellin? v. Scott, supra; 2 Chamb.,
cited. Ev , g 1262. n 5. and cases cited.
40. In. : Central Branch i nion Pac. H. Co. 50. TTart's Appeal, 8 Pa. 32 (1848).
v Shoup, 28 Kan. 304. 42 Am. TCep. 163 51. Eltinor v Scott, supra: Hart's Appeal,
(1882): Oallasiher v. McHride, 66 X J. L. supra: 2 Chamb.. Ev.. 1262. n 7, and cases
360. 40 Atl. 5S-2 < 1001 ) : 2 ( hamb . Ev.. 1261, cited
n. 3. and cases cited. 52. King v. Shepard. supra ; City of De-
41. Central Branch T'nion Pac. P. Co. v. troit v. L. H Little Co.. 146 Mich. 373, 100
Shoup. supra. N. W. 671, 13 Detroit Leg. X. 803 (1906).
42. Perry v. Simpson Waterproof Mfg. Co.,
515 ADMISSIONS: JUDICIAL. 372
then a party to the latter. 50 Where the declarant is not a party to the pending
proceedings, as where a witness gives his testimony in the case, 56 they may be
received as admissions, so far as they relate to a probative or res gestae fact,
in any case where the declarant is himself a party but riot as judicial admis-
sions, informal or otherwise. 57
Probative Force. As between formal and informal judicial admissions the
effect, for the purposes of the trial in which they are made, is determined by
procedure. When the attempt is made to use them, in another cause, as extra-
judicial admissions the difference in probative force is entirely one of logic. 08
In the case in which it is given, the informal judicial admission is accorded by
procedure the force of a leva-men probationis, the quality of prima facie proof
shifting the burden of evidence. In subsequent cases, it is available only so
far as it appears to have been connected with the party himself, in his personal
capacity rather than constitute the- technical work of counsel. Even in cases,
as oral testimony, where the admission may fairly be regarded as the statement
of the party, the probative force will be largely affected by considerations as to
the degree of deliberativeness employed and the like. 5!)
Adoption by Party; Oral Evidence. A party may, in offering the testi-
mony of a third person, so affirm the truth of its statements as to adopt them
as his own. They thereupon become competent as his admissions, and nuiy
be used as such in a subsequent suit. This is equally true whether the t> ali-
mony is oral or in writing. 01 In general, by calling a witness to prove a par-
ticular fact, a party impliedly asserts merely its existence." 2 Only when the
witness testifies as desired by the party calling him may his statement be re-
garded as an admission of the party. Where the proponent distinctly repudi-
ates the statement of the witness in whole or in part fi:J or the latter volunteers
statements not germane to the subject on which he is called, or digresses to
other subjects, the party is not affected by the repudiated or unexpected state-
ments either by their being used against him in that case, or by their employ-
ment in any subsequent proceeding.' 14
Written Statements. As to written declarations, e.g., a deposition given
by a third person in favor of a party and offered by him in evidence, the litigant
53.2 Chamberlayne, Evidence, 1263- Am. Dec. 628 ( 1851) ; Rich v. Minneapolis, 40
1267. Minn. 82, 41 X. YV. 4.15 (1S8!)|; 2 Chamb.,
54. See Dowie v. Driscoll, 203 111. 480, 68 Ev., 1264, n. 1, and cases cited
N. E. 56 (1903). 59. Houston v. Chicago, etc., Ry. Co., 118
55. Jones v. Dipert, 123 Ind. 594, 23 N. E. Mo. App. 464, 94 S. W. 560 (1906).
944 (1889); Mercer v. King, 13 Ky. L. Rep. 60. State v. Gilbert, 36 Vt. 145 M863) ;
429 (1891). Richards v. Morgan, 10 Jur. (N. ',:.) 559,
56. Wheat v. Summers, 13 111. App. 444 564 (1864).
(1883); t'adley v. Catterlin, 64 Mo. App. 629 61. Richards v. Morgan, supra.
(1895); Tooker v. C-ormer, 2 Hilt. (N. Y. ) 62. Id.; 2 Chamb., Ev., 1265, n. 3, and
71 (1858) ; 2 Chamb., Ev., 1263, n. 5, and cases cited.
cases cited. 63. Richards v. Morgan, supra.
57. 2 Chamb., Ev., 1263, n. 6. 64. Wilkins v. Stidger, 22 Cal. 232 (1863) ;
58. Parsons v. Copeland, 33 Me. 370, 54 Martin v. Root, 17 Mass. 222 (1821).
373
FORM.
516
is affected by its statements, in the same or a subsequent suit ; 65 not by all
which the deponent sees fit to say, tmt by such statements as the party has
used for his own account, as part of his case, adopting, by using them, in a
sense, as his own. 06
Depositions. Depositions made by others to which a party accords no
actual or implied personal assent ' do not affect him.
516. [Informal Judicial Admissions]; Form of Admissions; Oral; Testimony
by Party. ( '* Statements contained in the evidence given by a party as a wit-
ness or adopted by him 69 are primary in tjieir nature 70 and constitute in-
formal judicial admissions which affect the party not only in the trial where
given but in any other hearing of a suit 71 even upon appeal. 72 Such declara-
tions are equally competent, unless the matter is regulated otherwise by stat-
ute, 73 in a subsequent case, 74 and although the parties, except the original
declarant, are different in the two actions. 75
Criminal Cases. Apart from considerations of voluntariness in statement 76
or the privilege against self-incrimination 77 elsewhere considered, the defend-
ant in a criminal case may properly make admissions of an informal judicial
nature in connection with his testimony before a judical tribunal, 78 to the same
effect as in civil cases, although all such evidence has been excluded by statute
in certain jurisdictions. 79
65. Richards v. Morgan, supra.
66. III. ; 2 Chamb., Ev., 1266, n. 2, and
case:? cited.
67. 2 Chamb., Ev., 1267: Hallett v.
O'Brien, 1 Ala. 585 (1840) ; Hovey v. Hovey,
9 Mass. 216 (1812).
68. 2 Chamberlayne, Evidence, 1268-
1270.
69. Beeckman v. Montgomery, 14 N. J. Eq.
106 (1861).
70. Matthews v. Story, 54 Ind. 417 (1876).
The admission is competent though the wit-
ness is present in court and the opposite
party has a right to compel him to testify.
Buddee v. Spangler, 12 Colo. 216 H88K) :
German Nat. Bank v. Leonard, 40 Xeb. 676
(18941; McAndrews v. Santee, 57 Barb. (X.
Y.) 193 (1S69) : 2 Chamb., Ev., 1268, n. 2,
and cases cited.
71. Wiseman v. St. Louis, etc.. R. Co.. 30
Mo. App. 516 (1888) ; Sternbach v. Friedman,
78 N. Y. Supp. 318, 75 App. Div. 418 (1902).
72. 'Chase v. Debolt, 7 111. 371 (1845);
Stemmler v. City of New York, 179 N. Y.
473, 72 N. E. 581 (1904).
73. Com. v. Ensign, 40 Pa. Super Ct. 157
(1909) ; Dalv v. Brady, 69 Fed 25 (1895).
A strict construction will be applied to such
a limitation upon the admissibility of gen-
erally accepted evidence. Dusenbury v. Dus-
enbury, 63 How. Pr. ( N. Y.) 349 I 1S82) ;
Lapham v. Marshall, 3 N. Y. Supp. 601, 51
Hun 36 (1889).
74. White v. Collins, 90 Minn. 165, 95 N.
W. 765 (1903); Sternbach v. Friedman,
supra; Com. v. Ensign, supra; La Flam v.
Missisquoi Pulp Co., 74 Vt. 125, 52 Atl. 526
(1902); 2 Chamb., Ev., 1268, n. 6, and
cases cited.
75. Tooker v. Cornier, 2 Hilt. (N. Y.) 71
(1858).
76. Hardy v. U. S., 186 U. S. 224, 22 S.
Ct. 889, 46 L. ed. 1137 (1901); People v.
Johnson, 1 Wheel. Cr. (N. Y.) 193 (1828);
2 Chamb., Ev . 1269, n. 1, and cases cited.
77. Infra, 597 et seq.; 2 Chamb., Ev.,
1540 et seq.
78. State v. Miller, 35 Kan. 328, 10 Pac.
865 (1886); People v. Banker, 2 Park. Cr.
(N. Y.) 26 (1823) : State v. Rowe, 98 N. C.
629, 4 S. E. 506 (1887); 2 Chamb., Ev.,
1269, n. 3, and cases cited.
79. Kirby v. Com., 77 Va. 681, 46 Am. Rep.
747 (1883) -. State v. Hall, 31 W. Va. 505, 7
b. E. 422 (1888).
516 ADMISSIONS: JUDICIAL. 374
Committing Magistrates, Inferior Courts, etc., are within the rule. SIJ
Where the statement is a voluntary one, .the accused may make valid admis-
sions before a grand jury. 81 The court may have been the one in which a
former trial of the declarant took place.* 2 The statement may have been
originallv made by the present party on a trial of an indictment against
another. 8 ' 5
Cicil and Criminal Cases. The admissions of accused used in a criminal
case may have been originally made in a civil proceeding,* 4 including those for
divorce,'* 5 or in bankruptcy.'*
How Testimony May Be Proved. The admissions of one accused of crime
may be proved by parole. Should the magistrate certify that the accused de-
clined to answer, ST the actual testimony may still be proved by those who
heard it. A civil pleading, however, filed in a civil case, unless distinctly
shown to be under instructions from the client, will not be received in a crim-
inal case as the admission of an accused.**
Minor Details. So long as it shall affirmatively appear that the statement
was made by a party 89 or his duly authorized representative, 90 no formality
is needed in giving the testimony. If the relevant portions of the testimony
cannot be separated, all may be read to the jury. 91 The evidence need not be
given in response to questions, nor even in court. 92 It is not even necessary
that any legal warrant should have existed for taking it. 93
Explanation Permitted. The party who has appeared as a witness is at
liberty to explain or control his testimony 94 and to show, if he can, thai he
gave explanations at the time which were not reported. 95
80. State v. Gilman, 51 Ale 206 (1802) 85. Crow v. State (Tex. Cr. App. 1003),
(coroner) ; Reg. v. Coote, L. R. 4 P. C. 599, 't2 S. W. 392.
42 L. J. P. C. 45 (1872) (fire marshal) ; 86. People v. Weiger, 100 Cal. 352, 34 Pac.
Rex v. Merceron, 2 Stark. 323 (1818) (com- 826 (1893).
mittee of the legislature). The fact of arrest 87. Reg. v. Wilkinson, 8 C. & P. 662, 34
has been deemed immaterial. State v. Van- E. C. L. 949 (1838).
Tassel, 103 Iowa 6, 72 N. W. 497 (1897); 88. Farmer v. State, 100 Ga. 41, 28 S. E.
People v. Thayer, 1 Park. Cr. (N. Y.) 595 26 (1896).
(1825). 89. Castleman v. Sherry, 46 Tex. 228
81 People v Sexton, 132 Cal. 37, 64 Pac. (1876).
107 (1901); Williams v. State, 30 Ohio Cir. 90. Dowie v. Driscoll, 203 111. 480, 68 X.
Ct. 342 (1907); 2 Chamb., Ev., 1269, n. 8, E. 56 (1903); infra, 539; 2 Chamb., Ev.,
and eases cited. 1328.
82. Dumas v. State, 63 Ga. 600 (1879) -. 91. Eaton v. Xew England Tel. Co., 68 Me.
Com. v. Reynolds, 122 Mass. 454 (1877); 63 (1878).
People v. McMahon, 15 N. Y 384 (1857); 2 92. Kirk v. Garrett, 84 Md. 383, 35 Atl.
Chamb., Ev., 1269, n. 9, and cases cited. 1089 (1896).
83. People v. Mitchell, 94 Cal. 550, 29 Pac. 93. Rex. v. Merceron, supra.
1106 (1892); People v. Galagher, 78 Mich. 94. Miller v People. 216 Til. 309, 74 N. E.
512, 42 N. W. 1063 (1889); People v. Me- 743 (1905): Taft v. Little, 178 N. Y. 127,
Mahon, supra; 2 Chamb., Ev., 1269, n. 10, 70 N. E. 211 (1904) ; 2 Chamb., Ev., 1270,
and cases cited. n. 7, and cases cited.
8* Abbott v. People, 75 N. Y. 602 (1878) : 95. Boardman v. Wood, 3 Vt. 570 (1831).
State v. Hopkins, 13 Wash. 5, 42 Pac. 627
(1895).
375 FORM. 517-519
Conditions of Admissibility. The statement, offered as an admission, must,
however, be complete in itself. 96 The testimony may be reported by the judge
presiding- at the trial yT or by any one else who heard it, and need not, in
order to be admissible, be all the party said on that particular point. 98
517. [Informal Judicial Admissions 1 ; Form of Admissions; Writings. So
an informal judicial admission, though commonly oral, may be in the written
form as that of a letter."
518. [Informal Judicial Admissions] ; Affidavits The statements in an
affidavit made or adopted * by a party in a given cause, are competent as in-
formal judicial admissions. 2 They will be received in a subsequent trial or
after removal to a federal court, 3 or in another cause where the declarant,
against whom the statement is offered is a party. 4
Criminal Cases. Unless deemed involuntary within the law excluding con-
fession.', 5 such an affidavit may have been made in a criminal case, e.g., on a
motion for a continuance. 6 or for a change of venue. 7
Invalid Affidavits. It is not important whether the document itself is valid
as an affidavit, e.g., whether the magistrate had jurisdiction 8 or the affidavit
itself was regularly taken. 9
519. [Informal Judicial Admissions] ; Answers to Interrogatories. 10 A
party's answers to written interrogatories are competent against him as in-
formal judicial admissions in the same 11 or any other 12 suit, and have even
been accorded a prima facie weight. 13 It is not important that the inter-
96. Misner v. Darling, 44 Mich. 438, 7 N. v. Mutual L. Ins. Co., 46 X. Y. Super. Ct. 467
\V. 77 (1880). (1880) ; 2 Chamb., Ev., 1272, n. 4, and cases
97. Chase v. Debolt, 7 111. 371 (1845); cited.
t'it/.patrick v. Fitzpatrick. 6 R. 1. 64, 73 Am. 5. Infra. 583; 2 Chamb., Ev., 1479.
Deo. 6S1 (1859). 6. Behler v. State, 112 Tnd. 140, 1.3 X. E.
98. Friek v. Kabaker, 116 Iowa 494, 90 N. 272 (1887) ; Com. v. Starr, 4 Allen (Mass.)
W. 498 (1902). 301 (1862) ; 2 Chamb.,. Ev., 1272. n. 6, and
99. Holderness v. Baker, 44 X. H. 414 cases cited.
(1862) ; 2 Chamb., Ev., 1271. 7. Boles v. State, 24 Miss. 445 (1852);
1. Knight v. Rothschild, 172 Mass. 546, Baker v. Hess. 53 111. App. 473 (1893).
52 X. E. 1062 ( 1899) ; Connecticut M. L. Ins. COXTRA : Behler v. State, supra.
Co. v. Hillmon, 188 I . S. 208, 23 S. Ct, 294 8. Morrell v. Cawley. 17 Abb. Pr. (X. Y.)
(1903) ; 2 Chamb., Ev., 1272. n. 1, and cases 76 (1863).
cited. 9- Davenport v. Cummings, 15 Iowa 219
2. Orr v. Travelers' Ins. Co., 120 Ala. 647. (1863).
24 So. 997 H898) ; Cornelissen v. Ort, 132 10. 2 Chamberlayne, Evidence. 1273.
Mich. 294, 93 X. W. 617 ( 1903) ; Stickney v. 11. .Tewett v. Rines. 39 Me. (1854);
\Yard. 46 X. Y. Supp. 382. 20 Misc. 667 Nichols v. Allen. 112 Mass. 23 (1873).
i 1S97) ; 2 Chamb., Ev., 1272, n. 2. and cases 12. .Tewett v. Rines, supra: Williams v.
cited. Cheney. 3 Gray (Mass.) 215 (1855); 2
3. Xational Steamship Co. v. Tugman. 143 Chamb.. Ev., 1273, n. 2, and cases cited.
U. S. 28. 12 S. Ct. 361, 27 L. ed. 87 (1892). 13. Clairmont v. Dickson, 4 L. C. Jur. 6
4. Knight v. Rothschild, supra: Rosenfeld (1859).
v. Siegfried, 91 Mo. App. 169 (1901) : Furniss
520-522 ADMISSIONS: JUDICIAL. 376
rogatories themselves are not put in evidence 14 or that they have failed of their
original purpose because necessary formalities have been omitted. 15
520. [Informal Judicial Admissions] ; Depositions. 10 Statements made by
a party in a deposition taken in the cause where offered, de bene esse, 17 or in
perpctuam memoriani 1JS may constitute informal judicial admissions in that
cause. If the statement is that of a party on his own knowledge or on infor-
mation, for the accuracy of which he is willing to become responsible, 19 it is
admissible in the same or another 2o suit. A statement made by a specially
instructed agent, 21 will be received as if it were the declaration of the party
himself.
Invalid Depositions. The admission of the party is equally competent
though the document is itself invalid, 22 or if it is, as a matter of fact, sup-
pressed, 23 because of nonconipliance with prescribed forms 24 or for the reason
that the justification for using it no longer continues. 25
521. Judicial Admissions; By Whom Made. 26 The formal judicial admis-
sion is as a rule, the work of counsel, 27 the informal judicial admission being
more often the individual act of the party. A formal judicial admission made
or adopted 28 by the party, even when acting in a representative 2f) or differ-
ent 30 personal capacity, may be accepted by the court and given full effect, 31
though made without the knowledge of his counsel. 32
522. [Judicial Admissions]; Attorneys. 33 When a formal judicial ad-
mission is entered into by a legal representative, including any of his neces-
sary agents within their appropriate sphere of action, 34 in good faith :>>5 and
14. Cochran v. Chipman, 11 Nova Scotia 23. Parker v. Chancellor, 78 Tex. 524, 15
254 (1876). S. W. 157 (1890).
15. Lynde v. McGregor, 13 Allen. (Mass.) 24. Carr v. Griffin, supra.
182 (1866) ; Edwards v. Norton, 55 Tex. 405 25. Moore v. Brown, 23 Kan. 269 (1880) ;
(1881). Hatch v. Brown, 63 Me. 410 (1874).
16. 2 Chamberlayne, Evidence, 1274. 26. 2 Chamberlayne, Evidence, 1275.
17. Meyer v. Campbell, 20 N. Y. Supp. 27. Wilson v. Spring, 64 111. 14 (1872);
705, 1 Misc. 283 (1892); McGahan v. Craw- Adams v. Utley, 87 N. C. 356 (1882); 2
ford, 47 S. C. 566, 25 S. E. 123 (1896). Chamb., Ev., 1275, n. 1, and cases cited.
18. Faunce v. Gray, 21 Pick. (Mass.) 243 28. Winter v. Walter, 37 Pa. 155 (1860).
(1838) ; Chaddick v. Haley, 81 Tex. 617, 17 29. Phillips v. Middlesex County, 127 Mass.
S. W. 233 (1891). 262 (1879).
19. Cambioso v. Maffet, 2 Wash. (U. S.) 98 30. Purcell v. St. Paul F. & M. Ins. Co., 5
(1807); 2 Chamb., Ev., 1274, n. 3, and N. D. 100, 64 N. W. 943 (1895).
cases cited. 31. Com. v. Miller, 3 Gush. (Mass.) 243
20. In re Arnold's Estate. 147 Cal. 583, (1849)
82 Pae. 252 (1905); Phillips v. Lindley, 98 32. Pence v. Sweeney, 3 Ida. 181, 28 Pac.
N. Y. Hupp. 423, 112 App. Div. 283 (1906): 413 (1891).
Hatcher v. Crews, 78 Va. 460 (1884); 2 33.2 Chamberlayne, Evidence, 1276-
Chamb., Ev., 1274, n. 4, and cases cited. 1281.
21. Gardner v. Moult, 10 A. & E. 464, 37 34. Lord v. Wood, 120 Iowa 303, 94 N. W.
E. C. L. 255 (1839). 842 (1903); 2 Chamb., Ev., 1276, n. 1,
22. Carr v. Griffin, 44 N. H. 510 (1863). and cases cited.
377 ATTORNEYS. 522
within the scope of his professional employment, 36 for the purposes of the
case for which it was made, 37 it is binding upon the client. 38 This result
follows equally whether the statement is made during the trial, 39 before it
begins, 40 or after it is over. 41
Acts in Pais. Speaking generally, a client is not affected by the acts in
pais of his legal adviser, or by the latter's statements, written 42 or oral, 43 not
relating to the handling and management of the case.
Matters of Procedure. Speaking generally, matters of procedure are es-
pecially within the province of counsel, with which the client has, as a rule,
but little to do. 44 In what way facts shall be handled, how they shall best be
pleaded, 45 in what manner they shall be presented in the opening address, or
in the closing argument, are beyond the ken of the client. What evidence
shall be used to prove certain facts, to what effect particular witnesses would
testify to if present, 46 all this, and much more, are within the purview of the
art of advocacy, of which the client, as a rule, knows nothing. 47 The counsel
alone can effectively judge as to when it is wise to insist upon full proof, and
under what circumstances the formal requirements of evidence, regarding in-
cidental matters, 48 may be waived. The due execution of uncontroverted
documents, for example, 49 or the existence of really undisputed facts 50 may,
under certain circumstances, be frankly conceded with benefit to the forensic
fortunes of the litigant. Wide discretionary powers must necessarily be con-
ferred upon the legal adviser.
35. Williams v. Preston, 20 Ch. D. 672, 51 Saunders v. McCarthy, 8 Allen (Mass.) 42
L. J. Ch. 973 (1882). (1864) ; Lake Erie, etc., R. Co. v. Rooker, 13
36. Dillon v. State, 6 Tex. 55 ( 1851). Ind. App. 600, 41 X. E. 470 (1895) ; 2 Chamb.,
37. Truby v. Seybert, 12 Pa. 101 (1849) : Ev., 1277, n. 2, and cases cited.
Atchison, etc., Ry. Co. v. Sullivan (Colo. 44. Anderson v. McAleenan, 8 N. Y. Supp.
1909). 173 Fed. 456, 97 C. C. A. 1. 483, 15 Daly 444 (1890).
38. Starke v. Kenan, 11- Ala. 818: Central 45. Supra, 503 et seq.; 2 Chamb., Ev.,
Union Pac. R. Co. v. Shoup, 28 Kan. 394, 42 1244 et se</.
Am. Rep. 163 (1882). 46. Ryan v. Beard, 74 Ala. 306 (1883);
39. Lord v. Bigelow, 124 Mass. 185 (1878): Virginia Carolina Chemical Co. v. Kirven,
People v. Mole, 82 N. Y. Supp. 747. 85 App. 130 X. C. 161, 41 S. E. 1 (1902).
Div 33 (10031. 47. Chicago City R. Co. v. McMeen, 70 111.
40. Limlley v. Atchison. etc.. R. Co. 47 App. 220 (18!>9); Lacoste v. Robert, 11 La.
Kan. 432. 28 Pac. 201 (1891): Person v. Ann. 33 (1856i.
Wilcox. 19 Minn 449 (1S73>: 2 Chamb., 48. Treadway v. Sioux City, etc., R. Co.. 40
Ev.. 1276. n. 7, and cases cited. Iowa 526 (1875); Person v. Wilcox, 19
41. The Harry, 11 Ped. Cas. Xo. 6,147. 9 Minn. 449 (1873): 2 Chamb., Ev., 1278, n.
Ben. 524 (1878). 5. and cases cited.
42. Doe v. Richards. 2 C & K. 216 (1S45) 49. Perry v. Simpson Waterproof Mfg. Co..
See Loomis v. R. Co.. 159 Mass. .19, 34 X. E. 40 Conn. 313 (1873) ; Voisin v. Commercial
82 (1893). Mut. Ins. Co.. 22 X. Y Supp. 348. 67 Hun
43. Cable Co. v. Parantha. 118 Ga 913, 45 oo5 (1893): 2 Chamb., Ev., 1278, n. 6,
S. E. 7S7 (1903): Pickert v. Hair, 146 and cases cited.
Mass 1. 15 X. E. 79 (1888). Statements in 50. Urquhart v. Butterfield, 37 Ch. D. 857,
ordinary social intercourse, casual conversa- 57 L. J. Ch. 521 (1887).
tions, are not the admissions of fhe client.
523 ADMISSIONS: JUDICIAL. 378
Responsibility -for Claims. In exercising these discretionary powers claims
{ire continually made by counsel engaged at the trial and concessions allowed
for reasons far removed from belief in or actual knowledge as to the facts
covered by the statement itself. Uncertain as to the final form which the facts
disclosed at the trial may eventually take, he may regard it as wise policy to
make such a variety and breadth of claim as will meet any situation which
the facts are likely to create. 51 To hold the client personally responsible for
all these assertions as propositions of fact, would clearly be unjustifiable.
Responsibility for Concessions. Concessions, on the other hand, may be
made, under the advice of counsel, not because the truth is stated but for the
purpose of attaining some ulterior end. These facts may be taken for granted
provisionally, in order to obtain the opinion of the court upon their legal effect,
as upon a demurrer, 52 request for rulings 53 or some similar expedient. 54 it
may even, in order to economize time, 50 to avoid an adjournment, or continu-
ance 5lj seem advisable to counsel, formally to admit in judicio, for the pur-
poses of the case, that a fact may be taken as true which both client and coun-
sel believe not to be so. An admission by conduct may possess practically the
effect of a judicial admission. 57
Substratum of Fact. So far as the substratum, underlying basis, of ulti-
mate fact on which the cause rests furnished by the party appears to be
blended with the formal judicial admissions of counsel, or those made under
legal advice, or so far as these formal judicial admissions are shown to have
been made with the personal assent of the client 58 or otherwise based on the
belief of the party himself, they have probative force as admissions in any
relevant connection in which they may be afterwards offered.
523. [Judicial Admissions]; Probative Force; Same Case. 59 The weight of
the extra-judicial admission is determined by logic, that is, it is not predeter-
mined."" On the contrary, the force and effect of a judicial admission, whether
formal (;1 or informal 2 is practically predetermined by procedure. The ef-
fect of the formal judicial admission is final and conclusive, that of the informal
judicial admission is prima facie.
51. Baldwin v. Gregg, 13 Mete (Mass.) 1 57. Asiatic Stpam Navigation Co. v. Bengal
253 (1S4T) : 2 Chamb.. Ev ., 1270 Coal Co., 35 Indian L. Hep. Calc. (pt. 2) 751
52. Kankakee, etc, H. Co v Horan. 131 (1008).
111. 28S, 23 X. E. 621 (1800): Belden v 58. Lord v. Bigelow, 124 Mass 185 ( 1877) :
Barker, 124 Mich. 667. 83 X. YV -616 (1000). 2 Chamh.. Ev.. 1281.
53. Koane v I'isher. 7 La. Ann 334 (1852) 59. 2 Chamberlayne. Evidence, 1282.
54. Beek'r v Young. 3 Bibb (Ky ) 520 1283.
(1814): Pa<ze v. Brewster. 58 X. H. 126 60. Xjipra. 500 : 2 Chamb.. Ev.. 1236:
i 1S77) ; 2 Chamb., Ev . 1280. n 3. and cases 2 Chamb . Ev.. 1282.
cited 61, Supra. 502 et aeq.: 2 CTiamb., Ev .
55. Rays v. Hinds. 28 Tnd 531 nSfi7): 1243 et sen.
Shipman v Haynes. 15 La. 363 (18401 62. Supra. 515 et seq.; 2 Chamb., Ev.,
56. Ryan v. Beard, supra; Cutler v. Cutler. 1263 et seq.
130 X C. 1. 40 S. E. 680. 89 Am. St. Rep.
854, 57 L. R A 209 (1902).
379 WEIGHT. 524,525
Other Cases. In cases other than that in which they were made, judicial ad-
missions, whether formal as pleadings, in civil and criminal cases ; 63 or in-
formal, as the testimony of a party as a witness," 4 or by affidavit, 05 or deposi-
tion, " all, indifferently, drop into the class of extra-judicial admissions 7 and
have merely the logical force and effect appropriate to this class of statements. 68
524. [Judicial Admissions] ; Formal Judicial Admissions Conclusive. 96 As
a matter of procedure, the orderly conduct of a trial necessarily requires that,
in the absence of mistake, 70 misunderstanding, 71 or qther good cause shown,
the formal statements contained in pleadings, 72 stipulations, 73 specific admis-
sions by counsel at the trial ' 4 or before a magistrate. 75 and the like, 76 should
be once for all settled and determined as the ground work on which the rights
of the parties are to be contested. 77 They are therefore, not to be withdrawn
at the mere volition of the party, even in an appellate court 7S or even on a
subsequent trial of the same case, 79 unless the formal judicial admission shall
have been made for a temporary purpose. 80 The judge has, however, admin-
istrative power to allow the formal judicial admission to be withdrawn or modi-
fied, upon satisfactory cause shown. 81
525. [Judicial Admissions] : Informal Judicial Admissions Constitute Prima
Facie Case. 82 In case of the informal judicial admission the rules of pro-
cedure attach a primn facie force. 83 The party is, however, by no means con-
63. Parks v. Mosher, 71 Me. 304 (1880): Pac. 1108 (1896); Leroy Payne Co. v. Van
In re Duncan, 64 S. C. 461, 42 S. E. 433 Evra, 94 111. App. 356 (1901); Moling v.
(1002) Barnard, 65 Mo. App. dOO (1896) ; 2 Chamb.,
64. Supra, 516 et seq. ; 2 Chamb., Ev., Ev., 1284, n. 5, and cases cited
1268 et se<{.; 1283 75. Marsh v. Mitchell, 26 IS. J. Eq. 497
65. Supra, 518; 2 Chamb., Ev , 1272. (1875).
66. .s'wpra. 520: 2 Chamb., Ev., 1274. 76. In re Henschel, 114 Fed. 968; McLug-
67. Tabb v Cabell, 17 Gratt. (Va.) 160 han v. Bovard, 4 Watts (Pa.) 308 (1835).
(1867). 77. Supra, 392; 2 Chamb, Ev., 932.
68. Infra, 558 et seq.: 2 Chamb., Ev., 78. Montgomery v. Givhan. supra. The ad-
1383 et seq. mission, however, is not conclusive where, on
69. 2 Chamberlayne. Evidence, 1284, an appeal, the trial is de noro. Morrison v.
1285. Riker. 26 Mich. 385 (1873). If it may
70. Montgomefy v. Givhan. 24 Ala. 56:^ reasonably be inferred, that the intention of
(18541 : Hughey v. Barrow, 4 La. Ann. 248 the parties was to confine the scope of the
(1840). stipulation to a particular case, the rule is
71. State v. Paxton, 65 Neb. 110. 90 X. W. otherwise Perry v. Simpson Waterproof
983 (1902). Mfg. Co.. 40 Conn. 313 (1873).
72. Raridan v Central Towa R. Co.. 69 Towa 79. TTolley v Young. 68 Me. 215, 28 Am.
527, 20 X W. 509 (1886): Cook v Barr. 44 Rep. 40 (1878); Owen v. Cawley, 36 N. Y.
N. Y. 156 (1870); Goldwater v. Burnside. I (1867).
22 W<h. 215. 60 Par. 400 (1000) : 2 Chamb.. 80. Mnllin v. Vermont Mut. F. Tns. Co., 56
Ev.. 124. n 3. and cases cited Vt. 30 (1884).
73. Illinois Cent. R. Co. v Fishell. 32 Til 81. 2 Chamh .. Ev.. 1285.
Ann 41 (1*80): Burba nk v. Rookinsrham 82. 2 Chamberlayne. Evidence. 1286.
Mnt F Tns. Co.. 24 X. H. 550. 57 Am Dec. 1287
300 (1852). 83. Stone v. Cook. 70 Til 424 HS75) : Auer
74. Hearne v. De Young. Ill Cal. 373, 43 v. Hoffmann, 132 Wis. 620, 112 N. W. 1090
525 ADMISSIONS: JUDICIAL. 380
eluded by his statement. A fact stated by a party in his testimony dispense*
with further proof. 84 His estimate or opinion may be controlled by other
evidence 85 and even where his testimony is against the interest of the party
giving it, he is not, as a matter of law, concluded. 86 A statement, however,
may be so relied 011 by the opposite party as to ground an estoppel. 87
525a. Effect of Plea of Guilty Withdrawn Where the defendant pleads
guilty in open court to the charge made against him and afterwards withdraws
the plea it might seem having in view the rule of reason that this is good evi-
dence of his guilt and should be received against him at a later trial. There
are however many practical considerations against it. Most criminal defend-
ants are ignorant and rely entirely on their counsel in such matters and such
pleas are commonly made by attorneys in the nature of an offer of settlement
in the hope of obtaining for the accused a light sentence without intending to
admit guilt where the state of the evidence or the difficulty of obtaining wit-
nesses renders the case a precarious oi.e to defend. The attorney may be
afraid of prejudice of the jury against his client. For these reasons the weight
of authority is properly against the reception of the evidence. 88
(1907) ; 2 Chamb., Ev., 1286, n. 1, and cases have been regarded as more strongly probative
citi'd. than the denials contained in his direct testi-
84. Roach v. Burgess (Tex. Civ. App. mony. Cohen v. Barry, 111 N. Y. Supp. 668
inOl), 62 S. W. 803. (1908).
85. Culberson v. Chicago, etc., R. Co., 50 87. 2 Chamb., Ev., 1287.
Mo. App. 556 (1892). 88. People v. Ryan, 82 Cal. 617, 23 Pac.
86. Ephland v. Missouri Pac. R. Co., 71 121; State v. Meyers, 99 Mo. 107, 12 S. W.
Mo. App. 597 (1897) ; 2 Chamb., Ev., 1286. 516; Heim v. United States (1918), 46 Wash,
n 4, and cases cited. Positive Stronger than L. Rep. 242. Contra: State v. Carta, 90
Negative Statement. Plaintiff's declara- Conn. 79, 96 Atl. 411; Comm. v. Ervine, 8
tions against interest on cross-examination Dana (Ky.), 30. See ante, 8. 508.
CHAPTER XVIII.
ADMISS IONS : EXTRA-JUDICIAL.
Extra-judicial admissions; definition, 526.
use a general one, 527.
Conditions of admissibility ; statement must be one of fact, 528.
statement must be voluntary, 529.
statement must be certain, 530.
statement must be complete, 531.
statement must be relevant, 532.
Extra-Judicial admissions; by whom made; parties, 533.
parties to the record, 534.
co-parties; declarant affected as if sole party, 535.
co-party not affected, 536.
nominal parties, 537.
persons beneficially interested, 538.
admissions by privies, 539.
admissions by aye.nts, 540.
evidence is primary, 541.
res c/estae in this connection. 542.
independent relevancy distinguished, 543.
Form of Extra- Judicial admissions; adoption, 544.
reference* to another, 545.
writing, 546.
book-cntrie^, 547.
business documents, 548.
commercial paper, 549.
letters, 550.
obituary notices, 551.
official papers, 552.
professional memoranda, 553.
/a# Zz's/s, 554.
temporary or ephemereal forms of writing, 555.
Transmission by telephone, 556.
Scope of Extra- Judicial admissions, 557.
Probative force of Extra- Judicial admissions, 558.
526. Extra-Judicial Admissions; Definition. 1 Extra-judicial admissions are,
speaking generally, declarations of a party or his legal representatives regarding
1 2 Chamberlayne, Evidence. 1288, 1280.
527 Ai.MisjsjoA's: EXTRA-JUDICIAL. 382
the existence of a probative or res yestae fact* and made in pais, i.e., not in
the course of judicial proceedings. They include, as has elsewhere been
noted, 3 the use in a subsequent legal proceeding of what were originally, i.e.,
when made, judicial admissions.
527. [Extra-Judicial Admissions] ; Use a General One. 4 The extra-judicial
admission d lifers from the judicial in that the latter must be employed where
it arose, i.e., in a particular case, for a special purpose. The .extra-judicial
admission goes into every legal relation or connection in which litigation is
pending where the person who made the statement is a party and wherever
the opposing interest is able to persuade the court that it states a fact which
is of a probative or res (/est.ae order in the case where it is ottered. r> An extra-
judicial admission made by a person in a civil suit is equally available against
him on a criminal prosecution. The reverse is equally true." In like man-
ner admissions made in actions at law are competent in proceedings in equity,
and the reverse.* This species of statement is received in evidence regardless
of whether the action be real or personal. 9 The rule is the same in any form of
civil proceeding, for example, those of a probate court, 10 or for divorce, 11
which are not governed by common law procedure.
Criminal Cases. Reserving the general subject of confessions for separate
treatment, 12 it may be stated that an admission in a criminal cause differs in
no essential particular from one in a civil action. The extra-judicial admission
by one accused of crime is equally competent in either case and for the same
reasons. 1::
Time of Making. It is not material whether these statements were made
2. Hupra, 31, 34; I Chamb., Ev., 47, forth, 95 Mo App. 441. 69 S. W. 39 (1902) ;
51. Kimball v Huntin<*tori, 10 Wend. (X. Y.)
3. tiiipra. $ 524 et seq.: 2 Chamb., Ev., 675, 25 Am. Dei-. 590 (1833): 2 Chamb., Ev.,
1243 et seq., 1283; 2 Chamb., Ev., 1290, n. 5, and cases cited
1288, 1289. 10. In re Bramherry. 156 Pa. 62S. 27 Atl.
4. 2 Chamberlayne. Evidence, 1290- 405. 36 Am. St Rep. 64, 22 L. R. A. 594
1292 (-1893).
5. Heed v. McCord, 160 X. \. 330, 341, 54 11. Gardner v. Gardner. 104 Tenn. 410, 58
N. F. 737 (1S99) N. W. 342, 78 Am. St. Hep. 924 (1900).
6. Ifejr. v. McLean, 17 X. Brunsw. 377 12. fnfra. 582 et se</.: 2 Chamb.. Ev.,
(1877). 1472 el seq.
7. Yotara v De Kamalaris, 49 X. Y. Supp. 13. People v. Chrisman, 135 Cal. 282. 67
216. 22 Misc :! - !7 (1808) : Meyers v. Dillon. Par. 136 (1901) : Shiuv v Stale, 102 Ga. (it JO.
39 Or 581.65 Pac. 807. 60 Pa<-. 14 (1901): 29 S. E 477 (1897): Com. v. Chance. 171
Shurna!<er v Heed. .'? Pa. Dist. 45. 13 Pa. Co. Mass. 245. 54 X. K. 551, 75 Am. St. Rep. 306
Ct. 547 (1893)-. 2 Chamb.. Ev.. 1290, n. 3, (1*99); State v Dalv. 210 M O . 664. 109 S.
and cases cited \V. 53 (1008): Peonle v. Smith. 172 N T . Y.
8. Spann v Tnrbet. 130 Ala. 541, 30 So. 210, 64 X F.. 814 (190i. : Xeifiold v. State.
389 (1900); Ear! v. Shoulder. 6 Ohio 409 23 Ohio Cir. Ct, 246 M001): State v. Shep-
(1834) ; Holland v. Spell, 144 Tnd 561, 42 pard, 49 W. Va. 582. 39 S. E 976 (1901) : 2
N. E. 1014 (1895) : 2 Chamb., Ev., 1290. Chamb.. ET.. 1290a, n. ", and cases cited.
n. 4, and cases cited. 356, 21 S. E. 575 (1894); Lowrey v. Dan-
9. Munnerlyn v. Augusta Sav. Bank, 94 Ga.
383
ADMISSIBILITY.
528
before or after the date claimed as that of the commission of the oifense. 14
Even when tiie specific admission 15 is part of an " involuntary " confession, it
may still be receive-'!. 10
M inor Details. Apart from questions of privilege 1T an oral admission may
be testified to by any one who heard it. llS A competent admission may be made
to any person. 11 * That it was made in confidence that it would not be divulged
is no ground for rejecting it. 2 " Extra-judicial admissions may be offered by
either party, 21 and are competent though the declarant is present in court and
available as a witness. 22 It is not material that the same statement is also in
written form. 23
528. Conditions of Admissibility ; Statement Must Be One of Fact. 24 It is
tirst of all essential that the statement ottered as an extra-judicial admission
should be one of fact, 2 '' i.e., amrni some present evistence.
Metier of Law. Parties cannot by their admissions of law arising out of
an undisputed state of facts, bind the court to adopt their view. 20 Conclusions
of law 2T unless inseparably blended with and necessary to the understanding
of a statement of fact 2S or statements as to declarant's conclusions from certain
14. Fo\\ler v. People, 18 How. Pr. i X. Y.)
493 (1SOO): Broks v. I". S., 146 Fed. 223,
70 C C. A. 58] (1906).
15. Infra. 013 et seq.: 2 Chamb., Ev.,
Jj 10(1!) <-t seq.
16. State v Brinkley, 55 Or. 134, 105 Pac.
708 11909).
17. See 2 Chamb., Ev., 1291, n. 1. Pres-
ence of third person. Where a third person
is present at a conversation otherwise privi-
leged, the statements are not confidential and
may be stated by the third party present.
Reynolds v. State. 147 Ind. 3. 46 X. E. 31
(1S97): Com. v Griffin. 110 Mass. 181
(1872) : People v. Lewis, 16 X Y Supp. 881
( 1891 )
18. Allen v. Hall. 04 Xeb. 256, 89 X W.
803 (1902): Egyptian Flag Cigarette Co. v
Comisky. 81 X. V. Supp. 0,3, 40 Misc. 236
(1903): 2 Chamb., Ev., 1291, n. 2. and
case* cited.
19. Chicago City R. Co. v. Tuohy, 196 111
410. 03 X. E. 997. 58 L. R. A. 270 (1902):
Douglass v. Lonard. 17 X". Y. Supp. 591
(1892): 2 Chamb., Ev.. 1291. n. 3. and
cases cited.
20. Crain v. Jacksonville First Xat. Bank.
114 111. M6, 2 X E. 486 (1885).
21. Brown v. Brown. 4 Fed. Cas Xo 1.994.
1 YVoodb. & M. 325 (1846).
22. Stevenson v. Ebervale Coal Co.. 201
Pa. 112, 50 Atl. 818, 88 Am. St. Rep. 805
(1902).
23. Burch v. Harrell, 93 Ga. 719, 20 S. E.
212 (1894).
Extra-judicial admissions are not so much
an exception to the rule excluding hearsay
as based upon a quasi-estoppel which controls
the right of a party to disclaim responsibility
for any of his statements. 2 Chamb., Ev..
*2*
Calling attention to admissions. Admis-
sions made by the plaintin" may be put in evi-
dence without h'rst calling his attention to
them. Adams v Chicago (Jreat \Yestern R.
Co., 156 Iowa 31. 135 X. W. 21. 42 L. R. A.
(X. S.I 373 (1912).
24. 2 Chamberlayne, Evidence. 1293.
25. Bellefontaine Imp. Co v Xiedringhaus,
181 111. 420. 55 X. E. 1*4. 72 Am S't. Rep.
269 (1899): Welland Canal Co. v. Hatha-
way, 8 Wend. (X. Y.) 480. 24 Am. Dec. 51
(1832) : 2 Chamb.. Ev., 1293, n. 1, and cases
cited.
26. People v. Pittsburg, etc.. Ry. Co.. 244
111. 166. 91 X. E. 48 (1910): Citv Club of
Auburn v. McGeer. 198 X. Y. 160. 91 X. E.
539 (1910). They may, however, estop them-
selves from afterwards denying such an ad-
mission, where it was made through fraud or
when it induced the opposite party to assume
a position he would not have assumed had
the admission not been made. Id.
27. Infra. 803 et seq.: 3 Chamb.. Ev.,
2325 et seq.
28. Lewis v. Harris, 31 Ala. 689 (1858).
529 ADMISSIONS: EXTRA-JUDICIAL. 384
facts, 29 his " opinion " as it is frequently called 30 are not proper subjects for an
admission, except in cases where the declarant might, if present as a witness,
have testified to the same inference or conclusion.
Psychological Facts. The fact covered by an admission may be a psycho-
logical one, e.g., belief. 31
529. [Extra- Judicial Admissions] ; Statement Must Be Voluntary. 32 It is
further required that the statement should have been voluntarily made by the
declarant. 33 Threats of personal violence affect only the weight of the evi-
dence, 34 and the bare custody of an officer is not sufficient to exclude a state-
ment otherwise voluntary. 35 Nor is it ground for rejecting a statement as not
voluntary that it was given by declarant as a witness in response to compulsory
process, whether in court 30 before arbitrators, 37 commissioners in bankruptcy 38
or in other judicial proceedings. 39 It is not important that the proceedings
themselves are irregular 40 or that the declarant was tricked or trapped into
making the admission. 41 His admission is equally received though obtained
by an officer tiy means of a representation which may be misleading, to say the
least. 42 It has been held that no preliminary proof need be given that the
admission was voluntarily made. 45
Criminal Cases. As in case of the confession itself, any specific admission
must if it is to be received in evidence be voluntary. 44 Should it appear that
the admission constitutes or is equivalent to a confession and that it was
induced by threats or promises extended to the declarant by persons in authority
over the proceedings, the statement will be rejected as involuntary, 4 '"' although
29. Infra, 7!>2 rt se</. ; 3 Chamb., Ev., (1854) ; McGahan v. Crawford, 47 S. C.
2291 et se<i ; 2 Chamb., Ev., 1293, n. 6, 566,25 S. E 123 (1896).
and cases cited. 37. Calvert v Friebus. 48 Md. 41 (1877).
30. ITohart v. Plymouth County, 100 Mass. 38. Lilley v. Mutual Ben. L. Ins. Co., 92
159 (1868); 2 Chamb., Ev., 1293, n. 7, and Mich. 153. 52 X. \V. 631 (1892).
oases cited. 39. McOahan v. Crawford, supra; Seaborn
31. Bradenkamp v. Rouge, 143 111. App. 492 v. Com., 25 Ky. L. Rep. 2203. 80 S. W. 223
(190S); State v. Kclley, 191 Mo. 680, 90 S. (1904).
\V. 834 (1905) ; 2 Chamb, Ev., 1293, n. 8, 40. Carr v. Griffin, 44 N H. 510 (1863).
and cases cited. 41. Higgins v. Bellinger, 22 Mo. 397
32. 2 Chamberlayne, Evidence, 1294. (1856) ; State v. Barrington, 198 Mo. 23, 95
33. Truby v. Seybert, 12 Pa. 101 (1849); S. W. 235 (1906).
fecott v. Home Ins. Co., 1 Dill. (U. S.) 105 42. Collins v. State, 115 Wis. 596. 92 N T . W.
(1870); 2 Chamb, Ev., 1294, n. 1, and 266 H902 See. however. Tines v. Com., 25
cases cited Compare People v Furlong, 187 Ky. L. Rep 1233. 77 S W. 363 (1903).
N. Y. 198, 79 N. E 978 (1907). 43. People v. Stokes, 5 Cal. App. 205, 89
34. Fidler v. McKinley, 21 Til. 308 (1859). Pac. 997 (1907).
35. Notara v. De Kamalaris, supra ; Daniels 44. Com v Williams, 171 Mass. 461. 50
v State, 57 Fla. 1, 48 So. 747 (1909) ; Fouse N. E. 1035 (1898) : State v. Schmidt. 137
v. State, 83 Neb. 258, 119 N". W. 478 (1909) ; Mo. 266. 38 S. W. 939 (1896) ; Murphy v.
State v. Smith. 138 N. C. 700. 50 S. E. 859 People. 13 N. Y. 590 (1876) : 2 Chamb., Ev.,
(1905) ; 2 Chamb., Ev,, 1294, n. 3, and cases 1294a, n 2. and cases cited.
cited. 45. Tnfra. 584 et seq.; 2 Chamb.. Ev.,
56. Newhall v. Jenkins, 2 Gray (Mass.) 562 1483 et seq See Tuttle v. People, 33 Colo.
243, 79 Pac. 1035 (1905).
385
CERTAIXTY.
** CJ ~ O A **
$ OoO, O
it is obvious that the will of the declarant has fully co-operated with his act.
In several jurisdictions, the logical rule is observed that a threat or promise
by an officer to an accused person which does not amount to duress leaves his
declaration voluntary, 46 and its weight for the jury.
530. [Extra-Judicial* Admissions] ; Statement Must Be Certain. 47 An admis-
sion must be certain, 4 * and consistent, 4 " definite 5 " and clearly proved. It
must, in addition, be couched in language reasonably capable, 51 without forced
or strained construction/' 2 to bear the interpretation placed on it. While con-
jectural 53 and supposititious 54 statements are excluded, absolute precision is
not demanded in case of a declaration offered as an admission. 55 Total failure
to identify the declarant will suffice to exclude the admission. 56
531. [Extra-Judicial Admissions] ; Statement Must Be Complete. 57 As a
rule, with moditications more fully stated elsewhere, 58 a party is at liberty to
offer merely such portions of an entire statement as he chooses, leaving his
opponent to supplement it should he desire. 09 This the latter may do either
by further examination of the same witness, 60 or by testimony from another per-
son, 01 so far as the additional statements shall appear to the court 02 to be
fairly necessary to qualify and explain the admissions already offered in evi-
dence. 1 '' Where a statement is certain, complete in itself, it is not material
46. People v. Knowlton, 122 Cal. 357. 55
Pac. 141 (1808* ; State v. Red, 53 Iowa 69,
4 X. \V. 831 (1SSO); McLain v. State, IS
Neb. 154. 24 X W. 720 (ISSoi.
47. 2 Chamberlayne. Evidence, 1205
48. State v Kisenmeyer. 94 111. 96 (1879) ;
Petzolt v Thiess. 55 X. V. Mipp. 740, 25
Misc. 707 (1899).
49. Avers v. Metcalf. 39 111. 307 (1866).
50. Douglass v. Davie, 2 McCord ( S. C.)
218 (1822).
51. Donovan v. Driscoll, 116 Iowa 339. 90
X. \V. 60 i 1902).
52. Mack v. Cole, 130 Mich. 84, 89 X. W.
564 (1902): Hamilton v. Patrick, 16 X. Y.
Supp 578, 62 Hun 74 (1891): Middleton v.
Westeney. 7 Ohio Cir. Ct. 393. 4 Ohio Cir. Dec
650 (1892) : 2 Chamb., Ev., 1295, n. 5. and
cases cited.
53. Driscoll v Taunton. 160 Mass. 486. 36
X'. E 495 (1894); Fred Oppermann, Jr..
Brewing Co v Pearson. 74 X. V. Supp. 187.
68 App Div. 637 (1902); 2 Chamb., Ev.,
1295. n. 6, and cases cited.
54. Mittnacht v. Bache. 45 X. Y. Supp. 81.
16 App. Div. 426 I 1807) : Rudd v. Dewey, 121
Iowa 454. 96 X. W. 973 i 1903).
55. Xirhols v. Allen. 112 Mass. 23 (1873).
Possibility of ambiguity, see Lincoln v. Hem-
enway, 80 Vt. 530, 69 Atl. 153 (1908) ; South-
ern Loan & Trust Co. v. Benbow, 135 N. C.
303. 47 S. E. 435 (1904).
56. Clark v Com.. 32 Ky L. Rep. 63. 836,
105 S. W. 393. 106 b. W 1191 (1908).
57. 2 Chamberlayne, Evidence, 1296-
1303.
58. Supra, 246, 248, 260 ; 1 Chamb., Ev.,
490. 492, 505.
59. Cramers v. Gregg, 40 III. App. 442
(1890); Lewis Pub. Co. v. Lenz, 83 X. Y.
Supp. 841, 86 App. Div. 451 (1903); 2
Chamb., Ev., 1296, n. 2. and cases cited.
60. Adam v. Eames, 107 Mass. 275 (1871) ;
Rouse v. Whited. 25 X. Y. 170, 82 Am. Dec.
337 i 1862); Wolf Creek Diamond Coal Co.
v. Schultz, 71 Pa. 180 (1872) ; 2 Chamb., Ev.,
1296. n. 3. and cases cited.
61. Oakland First Xat Bank v. Wolff, 79
Cal. 69. 21 Pac 551. 748 (1889): Morris v.
Jamieson. 20o 111 87. 68 N E 742 (1903);
Grattan v. Metropolitan L. Ins. Co., 92 N. Y.
274, 44 Am. Rep 372 (1883) : 2 Chamb., Ev.,
1296, n. 4, and cases cited.
62. Robinson v. Ferry. 11 Conn. 460 (1834).
63. Morri? v. Jamieson. supra; Straw v.
Greene. 14 Allen (Mass } 206 (1867) : Ather-
ton v. Defreeze, 129 Mich 364. SS X. W. 886
(1902) ; People v. Bingham. 190 X". Y. 566, 83
531 ADMISSIONS: EXTRA-JUDICIAL. 386
that it covers merely a portion of an entire transaction, 64 or that it constituted,
when made, part of a conversation, the balance of which is not heard." 5
Criminal Cases. An admission offered in evidence in a criminal case should
be complete. Should the statement be oral, everything said at the same time
necessary to the full and accurate understanding of the part offered should
be produced in the first instance. 86 For example, a conversation said to con-
tain an admission by the accused must be given to the court in its entirety, 67
though there be included much which is distinctly self-serving and to the in-
terest of the accused. 08 All rights of the accused have been held, however, to
be fully protected by permitting him to introduce such additional portions of
the conversation as he thinks best. 69 Should the incriminating declaration be
in writing, the same rule is applied, the entire document being introduced in
evidence at the outset. 70 The jury may follow certain portions and disregard
the balance. 71 Irrelevant matter likely to mislead the jury may be omitted,
upon the original reading of the document to the jury. 72
Self-serving Statements. Except so far as above authorized the self-serving
statements of the defendant will not be received in evidence when tendered by
him, 73 unless they are part of the res gestae, either in their independently
relevant 74 or assertive capacity. 75 In like manner, an accused person cannot
insist upon giving a self-serving explanation offered at a conversation other
than that relied upon by the prosecution. 76
N. E. 1129 (1908). aff'g 106 X. Y. Supp. 330, 71. State v Carlisle. 57 Mo. 102 (1874) :
121 App. Div. 593 (1907); 2 Chamb., Ev., State v. Sheppard, 49 W. Va. 582, 30 S. E.
1296, n. 6, and cases cited. 676 (1901).
64. Stansell v. Leavitt, 51 Mich. 536, 16 72. People v. Coughlin. 67 Mich. 466, 35
N. W. 892 (1883). X. W. 72 (1887).
65. Voorheis v. Bovell. 20 111. App. 538 73. Dixon v. State, 116 Ga. 186, 42 S. E.
(1886); Scott v. Young, 4 Paige (N. Y.) 357 (1902); Carle v. People. 200 111 404,
542, 547 (1834) ; 2 Chamb., Ev., 1296, n 8. 66 N. E. 32. 93 Am. Rep. 208 (1903) ; Com.
and cases cited. v. Cooseboom, 155 Mass. 298. 29 N. E. 463
66. Hanrahan v. People, 91 111. 142 (1878) ; 1 1891) ; State v. Blitz. 171 Mo. 530. 71 S. W.
66 N. E 32, 93 Am. Rep. 208 (1903) ; Com. 1027 (1903) : McKee v People, 36 N. Y 113
fehotwell v. Com., 24 Ky. L. Rep. 255. 68 S. (1867); 2 Chamb., Ev., 1297a, n. 1. and
W. 403 (1902); State v. Kennade, 121 Mo cases cited.
405, 26 S. W. 347 (1894); 2 Chamb., Ev., 74. Infra, 837 et seq ; 4 Chamb, Ev..
1297, n. 1, and cases cited. 2574 et seq.
67. Campbell v State, 23 Ala. 44 (1853) ; 75. People v. Estrado. 49 Cal. 171 (1875) :
State v. Curtis, 70 Mo 594 (1879): State State v Young, 119 Mo. 495. 24 S. \V. 1038
v Swink, 19 X. C. 9 (1836). (1893) : People v. De Graff, 4 Hun 622. 6 N.
68. Walker v. State, 28 Ga. 254 (1859): Y. St. Rep. 412 (1887): 2 Chamh.. Ev..
Morrow v. State, 48 Ind. 432 (1874): State 1297a. n. 3. and cases cited. The rule ex-
v. Xapier, R5 Mo 462 M877): 2 Chamb.. Ev.. eluding self-serving statements is based upon
1297, n 3. and cases cited the generally worthless character of such as-
69. People v Murphy, 39 Cal 52 (1870). sertions. State v Howard. 82 X C. 623
Hounds v State. 57 Wis, 45, 14 N W 865 (1880).
(1883) ; 2 Chamb, Ev, 1297, n. 4, and cases 76. State v Rutledse. 37 La Ann 378
cited (1885) : People v. Green. 1 Park Cr. (X. Y )
70. Si/pro, 256 et seq ; 1 Chamb., Ev., 11 (1845) : 2 Chamb., Ev.. 1297a, n. 5, and
500 et seq. cases cited.
387 COMPLETENESS. 531
Self-serving Acts, Appearances, Etc. One accused of crime cauiiot show
that be acted ~~ and, indeed appeared shortly after the crime as he would have
done if innocent. 7 * For like reasons, it cannot be shown that the accused
surrendered himself as a prisoner, or voluntarily offered to submit to arrest. 79
Irrelevancy. A further reason for rejecting the self-serving statement fre-
quently consists in the fact that such evidence is irrelevant. 8 "
^1 More Liberal Rule. A rule has been adopted in several jurisdictions, to
the effect that a statement, though not in strictness explanatory or qualifying,
is nevertheless competent, at the instance of the declarant, if made at the
same time as his admission previously offered in evidence in relation to the
same subject-matter." 1
Statements On Other Occasions. The general rule is to the effect that even
qualifying or contradictory statements made on another occasion by a party 82 or
a person to whom he stands in a relation of privity, 83 or other representative
capacity, are incompetent, even where they relate to the same subject-matter, 84
for the purpose of explaining or qualifying a declaration relied upon as an
admission.
Written Declarations. The rule requiring that statements used as admis-
sions should be complete applies to written declarations, as those contained in
letters sr> or cither documents. 86
Weight and Credibility. When the entire statement has been received due
weight should be given to it as a unit. 87 Kot that all parts of the statement are
77. Williams v. fetate, 52 Ala. 411 (1875). 83. Royal v. Chandler, 79 Me 265, 9 Atl.
78. State v. Strong, 153 Mo. 548. 55 S W. 615. 1 Am. St. Rep. 305 (1887) : Miller's Ap-
78 (1899); People v Rathlmn, 21 Wend. peal, 100 Pa. 568. 45 Am. Rep. 394 (1882);
(X. Y ) 509 i 1839) ; 2 Chamb., Ev., 1298. Ellen v. Ellen, 18 S. C. 489 (1882) ; 2 Chamb.,
n. 3, and cases cited. Ev., 1301, n. 2, and cases cited.
79. Vaughn v. State, 130 Ala. 18. 30 So 84. Stewart v. Sherman, 5 Conn. 244
669 (1901); State v. Taylor. 134 Mo 109, (1824). In certain jurisdictions, however.
35 S. W. 92 (18951 ; 2 Chamb, Ev., 1298, the use by a party affected, of other parts of
n. 4, and cases cited. So, of refusing to a continuous conversation, or an extended
avail himself of a chance to escape from con- and uninterrupted correspondence, regarding
finement. People v. Montgomery. 53 Cal the same subject, is permitted. Swift Elec-
576 (1878) ; Com v Hersey. 2 Allen .(Mass) trie Light Co. v. Grant. 90 Mich. 469, 51 N.
173 (1S61): People v. Rathbun. supra W. 539 i 1892) : Lewis Pub. Co. v. Lenz. 83
80. State v. Moore, 156 Mo. 204. 56 S W. X Y. Supp. 841. 86 App. Div. 451 (1903).
883 (1899): Meyers v U. S. 5 Okl 173, 48 85. Morris v. Jamieson. supra: Lombard
Pac. 186 i 1*97): 2 Chamb., Ev.. 1200. and v. Chaplin. OS Me. 300. 56 Atl 903 (1903).
cases cited. 86. Lombard v. Chaplin, supra : Grattan v
81. Robinson v. Ferry. 11 Conn. 460 Xew York Metropolitan L. Tns Co.. 92 N. Y.
(1830) : Morris v. Jamieson. supra: Farley 274, 44 Am. Rep. 372 i 1*83) : 2 Chamb., Ev.,
v. Rodocanaehi. 100 Mass 427 (1868): 2 1302. n. 2. and rases nted
Chamb.. Ev.. 1300. n 1. and cases cited. 87. Arnold v. Johnson. 2 111. 196 (1835):
82. Beebe v Smith. 104 111 634. 62 X E O'Brien v Cheney. 5 Cush (Mass ) 148
S.">6 (1002): Adam v Fames. 107 Mass 275 (1849)-. Shrady v. Shrady. 58 X. Y Supp.
(1871): Smith v. Dodge. 3 X. Y. Supp. 866 546, 42 App. Div 9 (1899): 2 Chamb., Ev.,
( 1888) : 2 Chamb., Ev., 1301, n 1, and cases 1303, n. 1, and cases cited
cited.
532
ADMISSIONS: EXTRA-JUDICIAL,
388
equally entitled to belief. 88 The jury may give probative weight only to
such parts of the whole, as they may deem worthy of confidence, and reject
the balance. 89 They cannot do so capriciously or without reason. 90
532. [Extra- Judicial Admissions]; Statement Must Be Relevant. 91 An ex-
tra-judicial admission must be the statement of a probative or res gestae fact, 92
for example, the existence of a particular state of consciousness. 93 The fact
which is stated must, therefore, tend to establish or constitute the truth (or
falsity) of a proposition in issue, 94 either directly as a res gestae or indirectly,
as a probative fact, circumstantially as is commonly said. 9j It must be thus
relevant at the time when it is offered in evidence. 9 * 5
Criminal Cases. In criminal, as in civil actions, the admission must be
that of a relevant fact.'" The scope of criminal admissions, however, extends
so far as to cover any probative or deliberative fact, 98 as well as one in the
res gestae, e.g., the forfms delicti.
Conditions of Probative Relevancy; Adequate Knowledge. That any state-
ment should be relevant it is necessary, inter alia, that it be made by a person
possessed of adequate knowledge. 1 The knowledge, however, need not be the
result of his own observation, if the declarant regards the information upon
which it is based as accurate and is willing to make the assertion as of his own
knowledge."
88. Sadler v. Sadler, 1(5 Ark. 628 (1856) ;
Thrall v. Smiley, ( J Cal. f>2!J ilSSS); Pierce
v. Delamater, a How. Pr. i N. V. j 162 ( 1847 ).
2 Chamb , Ev., 1303, n. 2, and oases cited.
89. Field v. Hitchcock. 17 Pick (Mass)
182, 28 Am. Deo 288 <1S35>; Detroit Elec-
tric Light, etc, Co v Applebaum. 132 Midi
555, 94 N. \V 12 (1903'; Barries v Allen.
1 Abb. Dec. ( X. V ) 111.1 Keyes 301) i IS64 > :
2 Chamb . Ev., 1303, n. 3. and cases cited
90. Harris v Woodard, 40 Mich 40R
(1879); Barnes v. Allen, <tupra ; 2 Chaml).,
Ev., 1303, n. 4, and cases cited
91. 2 Chamber layne, Evidence, 1304-
1309.
92. Morgan v Patrick, 7 Ala. 185 (1844^ ;
Meyers v. San Pedro, etc., R. Co., 36 Utah
307, 104 Pac. 736 (1909).
93. Canton v McGraw, 67JVId. 583, 11 Atl.
287 (1887): Ford v. Savage, 111 Mich. 144,
69 N. W. 240 (1896).
94. Lamar v. Pearre, 00 Ga. 377, 17 S. E.
92 (1302) ; Hooper v Browning, 19 Xeb. 420.
27 N. W. 410 <18S6): Reed v. McCourt, 41
X. Y. 433 ' IsfiO^ ; 2 Chamb., Ev., 1304, n.
3, and cases cited.
95. Beattyville Coal Co v Uoskins. 10 T\y
L. Rep. 1759. 44 S W 363 (1898); Croom
v. Sugg, 110 X. C. 259, 14 S. E. 748 (1892) ;
2 Chamb., Ev., 1304, n. 4, and cases cited.
96. Keesling v. Doyle, 8 Ind. App 43, 3.')
X. E. 12U i 18!)3) ; \\illard v. Horsey. 22 Md.
89 (1864.1. A statement of a relevant fact
competent as an admission is not within the
rule under discussion and is competent though
not made in connection with the matter di-
rectly involved in the suit. Polykranas v.
Krausx, 77 X V Supp 46 (1002). As to
effect of remoteness, see Mandlebaum v. Xew
York City Ry. Co., 90 X. Y. Supp. 377
( 1004)
97. People v. Williams, 150 Mich. 518. 16
Detroit Leg X. 1008, 124 X. \V. 555 (1910).
98. Walker v. State, 136 [nd. 663, 36 X. E.
356 (1803); Com. v Waterman. 122 Mass.
43 (1877); Murphy v. People, 63 N'. Y. 590
(1876); 2 Chamb., Ev., 1304a, n. 3, and
cases cited.
99. U. S. v. Jones, 10 Fed 460. 20 Blatchf.
(U. S.) 235 (1882).
1. Mittnache v. Bache,. 45 X. Y Supp 81,
16 App. Div 426 (1897): Folk v. Schaeffer,
180 Pa 613. 37 Atl 104 (1807). This rule
warrants the acceptance in evidence of a par-
ty's admission as to his asre. Koester v.
Rochester Candy Works. 104 N T . Y. 92, 19 L.
R. A. (N. S.) 783, 87 X. E. 77.
2. Wasey v. Tns. Co., 126 Mich. 119, 85
389 PARTIES. 533
Infants, Feeble-minded, Etc. If the requisite degree of intelligence for
adequate comprehension appears to be present, it is not important whether the
declarant is or is not of full age. The declarations of an infant party will
be received, 8 even where he would not be deemed competent to testify under
oath. 4
Remoteness. For probative relevancy, it is essential that the evidence
should not be, in the judgment of the court, too remote in point of time. 5
Subject to the qualification of relevancy, it is not material whether the declara-
tion in question preceded or followed 7 the transaction to which it relates, or
was, on the other hand, concurrent with it. 8
Deliberative Facts; Contradictory Statements. A litigant may use as
extra-judicial admissions by his opponent, statements made by the latter
which tend to establish the existence of facts deliberative in their nature,' 1 i.e.,
those used to test the accuracy and general credibility of the evidence furnished
by the witness; such as statements by a party inconsistent on some material
point v ' with his present testimony. The administrative requirement n which
insists that before a witness can be shown to have contradicted his present
testimony on a former occasion, the facts as to the alleged prior statements
mut be specifically and fully called to his attention and his denial or explana-
tion taken, is not, as a rule, applied in case of the former inconsistent state-
ments of a party. 12
533. Extra-Judicial Admissions; By Whom Made; Parties. 1 " An extra-ju-
dicial admission may, as is said elsewhere, 14 be made by a party to the record
or by any one \vho, under the rules of substantive or procedural law is able to
affect the party by a statement. 15 The designation of "parties" includes. not
X. W 459 (1901) ; Redd v. McCord, 160 X. Y 625 (1884) ; 2 C'hamb., Ev., 1307, n. 4. and
330, .~>4 N. E. 737 (1899); Chapman v. R. oases cited.
Co., 26 Wis. 294 (1870); 2 Chamb., Ev , 8. Crowley v. Pendleton. 46 Conn. 62
1305, n 2, and cases cited. (1878).
3. Chicago C R. Co. v. Tuohy, 196 111. 410, 9. Supra, 34; 1 Chamb., Ev., 52.
63 X. E. 997 i 1902.1 ; Atchison, etc., R Co. 10. Gould v. John Hancock Mut. L. Ins. Co.,
v. Potter. 60 Kan SOS, 58 Pac. 471 i!899). 99 X. Y. Supp. 833, 114 App. Div. 312
4. Mather v. Clark. 2 Aikens (Vt.) 209 (1906); Zonker v. Cowan, 84 Ind. 395
(1827); -i Chamb, Ev., 1306 Intoxication (1882).
may be shown to have been such as to make 11. Supra, 226 et seq. ; 1 Chamb., Ev.,
it irrational for the jury to act upon a state- 463 et seq
ment as an admission. Bruner v. Seelbach 12. Buck v Maddock. 167 Til. 210. 47 X. E.
Hotel Co., 133 Ky. 41. 117 S. W. 373 (1909). 208 (18971: Bullard v. Bullard. 112 Iowa
5. Bryant v. Crosby, 40 Me. 9 (1*55): 423. 84 X. W. 513 (19001: Root v. Brown,
Smith v Emerson. 43 Pa. 456 (1862): 2 4 Hun (X. Y.) 797 (1875): Drury v. Terr.,
Chamb.. Ev.. 1307. n. 1, and cases cited. 9 Okla. 398. 60 Pac. 101 (1900); 2 Chamb.,
6. Hall v. Bishop, 78 Tnd. 370 (1881): Ev., 1309. n. 6, and cases cited.
Passavant v. Cantor, 17 X. Y. Supp. 37 13. 2 Chamberlayne, Evidence. 1310.
11891); 2 Chamb., EV., 1307, n. 2, and 1311.
cases cited. 14. Supra. 499 : 2 Chamb., Ev.. 1233.
7. Rounds v. Alee. 116 Towa 345. 89 X. W. 15. Green v. Gould. 3 Allen (Mass.) 465
1098 (19021 : Gordon v. Stubbs, 36 La. Ann. (1862) : Marx v. Hart, 166 Mo. 503, 66 S. W.
534 ADMISSIONS: EXTRA-JUDICIAL. 390
only those who appear upon the record in that capacity, but persons who are
actually parties without so appearing. Substance of interest rather than form
of record is regarded as the determining factor. 10
534. [Extra-Judicial Admissions] ; Parties to the Record. 17 The typical
admission, which the law receives, is an assertion in words, a statement or
declaration made by one who is the opposing party of record in the case in
which it is offered. 18 Where the declarant is a defendant, it is necessary
that he should have been duly served with process. 19 But it is not essential
that the declarant should be sui juris. That the person himself is an infant, 20
under guardianship as an insane person 21 or as a spendthrift. 22 or is under
some disability, as that of coverture, 23 is deemed to be immaterial in this con-
nection. The declarant's statement is equally competent whether made before 24
or after 25 the suit in which it is offered was brought. A discontinuance of
the suit against him renders his declaration incompetent ; 26 but that he has
been defaulted has no effect. 27 Where a party's statements are admissible
only while he is possessed of a particular interest, his declarations before he
acquired the interest, 28 or after he ceased to have it, 29 are excluded. While the
extra-judicial admissions of one on trial for crime will be received in evidence
as in civil cases. 30
Criminal Cases. The inculpating statements of third persons, alleging their
commission of the offense which is the subject of the pending inquiry can-
not be proved by the accused in his own favor as the extra-judicial admissions
of such a declarant. 31 The death of the declarant 32 or the fact that the state-
260, 89 Am. St. Rep. 715 (1901) ; Laidlaw v. 898 (1899) ; Morrell v. Cawlev, 17 Abh. Pr.
Sage, 37 N. Y. Supp. 770, 2 App. Div. 374 (X. Y.) 76 (1863).
(1896) ; 2 Chamb., Ev., 1310, n. 2, and cases 24. Bartlett v. Falk. 110 Iowa 346, 81 N.
cited. W. 602 (1900).
16. Enloe v. Sherrill, 28 N. C. 212 (1845) ; 25. Clark v. Smith, 87 Til. App 409 (1899) ;
Dotts v. Fetzer, 9 Pa. 88 (1848) ; 2 Chamb., Dole v. Young, 24 Pick. (Mass.) 2.10 (1837) ;
Ev., 1311, n. 1, and cases cited. 2 Chamb., Ev., 1312, n. 7, and cases cited
17. 2 Chamberlayne, Evidence, 1312. 26. Bensley v. Brockway, 27 111. App. 410
1313. (1888).
18. Fagan v. Lentz, 156 Cal. 681, 105 Pac. 27. Ensminger v. Marvin, 5 Blackford
951 (1909); Koplan v. Boston Gaslight Co., (Tnd.) 210 (1839).
177 Mass. 15, 58 N. E 183 (1900) ; \Yilliams 28. Wallace v. Miner, 7 Ohio 249 (1835) ;
v. Sargeant, 46 X. V. 481 (1871): 2 Chamb.. Mclntyre v Union College. 6 Paicre (X. Y.)
Ev. 1312, n. 1, and cases cited. 239 (1837): 2 Chamb.. Ev., 1312, n. 11,
19. Griswold v Burroughs. 15 N. Y. Supp. and cases cited.
314. 60 Hun 558 (1891). 29. Boshear v. Lay, 6 Heisk. (Tenn.) 163
20. Chicago City K Co. v Tuohy. supra : (1S71)
Haile v Lillie, 3 Hill (X. Y.) 149 (1S42). 30. S'i/prfl. 527: 2 Chamb., Ev., 1290a.
21. Hart v. Miller. 29 Tnd. App. 222, 64 31. State v Hack. 118 Mo 92. 23 S. W.
N. E. 239 (1902). 1089 (1893): People v. Schooley. 149 X". Y.
22. Hoit v Underbill. 10 X. H. 220, 34 Am. 99, 43 X. E. 536 (1896) -. 2 Chamb., Ev.,
Dec. 148 (1839), 1313, n. 2. and cases cited.
23. Ernest v. Merritt, 107 Ga. 61, 32 S. E. 32. State v. West, 45 La. Ann. 14, 12 So.
7 (1893).
391 COPAKTIES. 5U5, 5ut>
ment is part of a death-bed confession, 33 does not affect the rule. The rule
applies to the statements of the officers and o.ther agents of a corporate defend-
ant. 34
535. [Extra- Judicial Admissions]; Coparties; Declarant Affected as if Sole
Party. 35 So far as other considerations do not intervene, the declarations of
one of several parties affect himself, 30 to the same extent as if he were the sole
litigant on that side of the record, except where at the time such declarations
were made a rule of substantive law operated as a bar to the use of the
declaration. 37
Necessary Prejudice. .'But where a statement of one of the co-parties can-
not be received as an admission without essentially injuring the substantial rights
of the others, as where the declaration in question involves the existence of some
specific fact, as the validity of a will, 38 or other basic document, 39 upon which
the rights of all the coparties are equally dependent, the declaration, though
otherwise competent, will be excluded.
536. [Extra-Judicial Admissions] ; Coparty Not Affected. 40 The statements
made by a party do not affect his coparties in civil cases, 41 whether of common
law, 42 divorce 43 or equity proceedings. 44 The rule is the same in criminal
proceedings. 45 Admissions by i conduct, as where a statement made in the
presence of all the parties may be deemed to have been adopted 46 or assented
to 47 by them are not within the purview of the rule.
Rights of C opart it. The rights of the coparty will be safe-guarded by the
court, if requested. 48 That the statement offered must, to a certain extent
necessarily affect the interests of the coparty, is not sufficient to warrant ex-
cluding it, if otherwise competent. 49 A coparty cannot, as a rule, use the
33. West v. State, 26 Ala. 08 (1884). 123 Mass. 309 (1877) : 2 Chamb., Ev.. 1314,
34. People v. American Tee Co.. 120 N. Y. n. 4. and cases cited.
Supp. 443 (1900). 40. 2 Chamberlayne, Evidence, 1315-
35. 2 Chamberlayne, Evidence. 1314. 1318b.
36. Williams v Tannton. 125 Mass. 34 41. Dean v. Ross, 105 Cal. 227. 3R Pac. 912
(1878): Petrie v. Williams. 23 X. Y. Supp. (1894): Dowie v. DriscolK 203 111. 480, 68
237, 68 Hun 589 (1893): Blondin v. Brooks, N. E. 56 (1903): Finelite v. Sonbenr. 7S X.
83 Vt. 472. 76 Atl. 184 (1910): 2 Chamb., -Y. Supp. 338. 75 App. Div. 455 (1902); 2
Ev.. 1314, n. 1. and cases cited. Declara- Chamb.. Ev.. 1315, n. 1. and cases cited,
tions of conspirator. See note, Bender Ed.. 42. Reed v. Xoxon. 48 Til. 323 (1868).
106 X. Y. 104. 43. Allen v. Allen, L. R. 1S94 Prob. Div.
37. Whittaker v. Thaver (Tex. Civ. App. 24*.
1909). 123 S. W. 1137. 44. T.eeds v. Ins. Co., 2 Wheat. (U. S.) 380
38. Gorham v. Moor, 197 Mass. 522. 84 (1817).
X. E. 436 (1908); Tn re Myer's Will. 1*4 45. 2 Chamb., Ev.. 1315.
X. Y. 54. 76 X. E. 920 (1906): Moore v. 46. Bradley v. Bri^s. 22 Vt. 95 (1849).
Caldwell. 27 Ohio Cir. Ct. R 449 (1904): 2 47. Caldwell v Ausrer. 4 }linn. 217. 77
Chamb.. Ev.. 1314. n. 3. and cases cited. Am. Dec. 5!5 (I860): Crippen v Morse. 49
39. Livingston's Appeal. 63 Conn. 6S. 26 X. Y. 63 H872).
Atl. 470 (1893) ; Britton v. Worcester County, 48. W-'lliams v. Taunton, supra; 2 Chamb.,
Ev., 1316.
536 ADMISSIONS; EXTRA- JUDICIAL. 392
statements of his associate 011 the record as against the opposing interest. 50
He may, however, employ them in his own favor as against the declarant. 51
Joint Offenses. It thus appears that the rule admits the declaration of a
coparty as against himself, but refuses it as against the other even in cases
like adultery 52 or other joint offenses, civil 53 or criminal where both par-
ticipants are equally guilty or equally innocent.
Exceptions to Uule. Where by a provision of substantive law the declarant
stands in some relation of agency or privity, he may, as a matter of law, make
a statement which will affect his copartner as an admission. 54 Where persons
are co-operating in a joint enterprise the admissions of one of them, within
the scope of the common undertaking, are binding upon all. 55
Joint Ownership. Whether the relation established by substantive law be
that of agency, 00 privity r<7 or under an independent rule, it is well settled
that the statements of a joint owner of real or personal property 58 affect the
other owners, when parties to the record, provided that the other conditions of
adinissibility are present. Among these is a requirement that the identity in
legal interest shall be clearly shown r ' and that the joint ownership must have
existed at the time the statement was made." The rule applies equally to
cases at law or suits in equity. Xo relation of joint ownership exists between
owners as tenants in common, 61 or between those holding present estates and
persons interested in reversion or remainder, e.g., between a tenant for life
and a remainderman when made parties to the same action, 02 and the statements
of a co-owner affect only himself.
Joint Liability. The declaration of one jointly liable, on some legal
obligation, 63 with the party against whom it is offered, is admissible as the
admission of the other, when both are parties to the record. Thus, the state-
ments of one jointly liable on a contract, written or oral, are admissible against
49. Rogers v. Suttle, 19 111. App. 163 58. Pierce v. Roberts, 57 Conn. 31, 17 Atl.
(1885). Where prejudice is necessary, the 275 (1889); Hollenbeck v. Todd, 119 111.543,
rule is otherwise. See 535; 2 Chamb., Ev., 8 X E. 829 (1887) : Jackson v. McVey, 18
1314, ns. 2, 3. Johns. (N. Y.) 330 (1820) ; 2 Chamb., Ev.,
50. Quinlan v. Davis, 6 Whart (Pa.) 169 1318a. n. 3, and cases cited.
(1840). 59. Blenkinsopp v. Blenkinsopp, 17 L. J.
51. Cade v. Hatcher, 72 Ga 359 (1884). Ch. 343, 2 Phill. 607 (1848).
52. 2 Chamb., Ev., 1317, n. 1, and cases 60. Bakeney v. Ferguson, 14 Ark. 640
cited. (1854).
53. Edgerton v. Wolf, 6 Gray (Mass.) 453 61. Xaul v. Xaul, 78 N. Y. Snpp 101. 75
(1856); Roberts v. Kendall. 3 Ind. App. 339, App. Div. 292 (1902).
29 N. E. 487 (1891). 62. McGregor v. Wait. 10 Gray (Mass.)
54. Redding v. Wright, 49 Minn. 322. 51 X. 72. 69 Am. Dec. 305 (1857): Gallagher v.
W 1056 (1892): 2 Chamb., Ev.. 1318. n 1. Rogers, 1 Yeates (Pa.) 390 (1893).
55. Summerville v. Penn Drilling Co., 119 63. Thomas v. Mosher, 128 111. App. 479
111. App. 152 (1905). (1900). An obligation to contribute or in-
56. Infra. 540 et ser/.; 2 Chamb., Ev., demnify is not a joint obligation. Rapier v
1337 et seq. Louisiana Equitable L. Ins. Co., 57 Ala. 100
57. Infra, 539 et seq. ; 2 Chamb., Ev , (1876) : Edwards v. Bricker, 66 Kan. 241, 71
1329 et seq. Pac. 587 (1903).
393 NOMIXAL, PARTIES. 537
his co-obligors wbeu sued on tbe common obligation. 64 Tbey must, however,
concern tbe subject-matter of tbe joint liability. 03 !Xo new obligation can be
created in this way ; 06 nor can the original obligation be enlarged by such a
declaration, 07 revived after it has prima facie been paid, 6 " a condition limiting
liability be removed, or the performance of it waived. uy
The Declarant Must Be a Party. It is essential that the declarant should
have been joined as a party on the record 7 " and, as such, properly served with
process. 7 1
Negotiable Inslnimoits. The joint obligation may, with equal effect, be
either a simple contract or a promissory note 72 or other negotiable instrument.
Covenants. It may be one by way of covenant. For example, the declara-
tion of one joint lesee may be admissible against the other. 73
Self-serving Statements. One jointly liable with another cannot use in his
own favor statements of his co-obligor. 74
537. [Extra- Judicial Admissions] ; Nominal Parties. 75 The statements of a
nominal plaintiff 70 or defendant 77 are not received as against the person
beneficially entitled. But one who takes upon the litigation by virtue of owner-
ship of the res takes its benefits cum onere, i.e., subject to the effect of all state-
ments made by his predecessor in title while he was still beneficially inter-
ested. 78 If the fact stated is one in which the declarant alone has an interest 79
or where, for any reason, his admission would not affect the interest of the
person beneficially entitled, 80 it continues to be competent. Familiar instances
of the rules under consideration are afforded by the extra-judicial statements
of a guardian ad litem 81 or " next friend," 82 or general guardian. 83
64. Olson v. O'Malia, 75 111. App. 387 74. Morgan v. Hubbard, 66 X. C. 394
(1898) ; Martin v. Root, 17 Mass. 222 (1821) ;. (1872).
Shirk v. Brookfield, 79 N. Y. Supp. 225, 77 75. 2 Chamberlayne, Evidence, 1319,
App. Div. 295 (1902); 2 Chamb., Ev., 1320.
1318b, n. 2, and cases cited. The share in 76. Shailer v. Bumstead, 99 Mass. 112
the joint obligation for which the speaker (1868); Eberhardt v. Schuster, 10 Abb. X
is liable is not material. Walling v. Roose- Cas. (X. Y) 374 (1879); Strither v. Aber-
velt, 16 X. J. L. 41 (1837). deen. etc., Co., 123 N. C. 197. 31 S. E. 386
65. Fenn v. Dugdale, 40 Mo 63 (1867): ( 1901) : 2 Chamb., Ev., 1319. n. 1. and cases
Wallis v. Randall, 81 X. Y. 164 (1880): 2 cited.
Chamb., Ev.. 13I8b. n. 4, and cases cited. 77. Day v. Baldwin. 34 Towa 380 (1872).
66. Thompson v. Richards, 14 Mich 172 78. Sally v. Oooden, 5 Ala. 78 (1843)
(1866). 79. Hogan v. Sherman, 5 Mich 60 (1858)
67. IT. S. Bank v. Lyman. 1 Blatchf. (U 80. Nix v. Winter. 35 Ala. 309 (1859).
S.) 297, 20 Vt. 666 (1848). 81. Cooper v. Mayhew, 40 Mich 528
68. Rogers v. Clements. 92 X. C. 81 (1885). (1879) : Chipman v. R. Co.. 12 Utah 68, 41
69. Thompson v Richards, supra. Pac. 562 (1895)
70. Dickinson v. Clarke. 5 W. Va. 280 82. Buck v Maddock, 167 Til. 219. 47 X
(1872). E. 208 (1897): Mertz v. Detweiler, 8 Watts
71. Derby v. Rounds. 53 Cal. 659 (1876). A S. (Pa.) 376 (1845).
72. Kosnagle v Armstrong, 17 Ida. 246, 105 83. Knights' Templar, etc.. Indemnity Co.
Pac. 216 (1909). v Crayton. 209 Til. 550, 70 N. E. 1066 (1904;
73. Miller v. Mathias, 145 111. App. 465 2 Chamb., Ev., 1319, n. 10, and cases cited.
(1908).
533 ADMISSIONS: EXTRA-JUDICIAL. 394
Principal and Agent. An agent may be sued, instead of his principal. He
is then iiot a nominal party, but is identified in legal interest with his principal
and his relevant statements are thus competent admissions in the suit against
him. S4
Persons Acting in a Fiduciary Capacity. Trustees and other persons act-
ing in fiduciary capacity, at law, are not nominal parties. The statements
of such a party before being duly qualified to discharge the duties of his
office sr> do not affect the estate prior to that time. If such statements are made
while the declarant is holding the legal title to the trust property they do affect
it. 86 In certain jurisdictions, the equitable view is adopted 87 and fiduciary
legal owners are deemed to be nominal parties 88 within the rule, and admis-
sions binding upon the trust fund can alone be made by those beneficially in-
terested in it.
S 538. [Extra-Judicial Admissions] ; Persons Beneficially Interested. 89 The
declarations of the person beneficially interested are competent against the
nominal party representing his interest, 90 provided they are made while the
declarant's interest continues 91 and a sufficient interest shall have been estab-
lished to the satisfaction of the court, by evidence outside the statements of
the declarant. 92
Injured Person in a Criminal Proceeding. The prosecutor in a criminal
proceeding, the person alleged to have been injured by the offense is in no
proper sense a party to the proceeding or beneficially interested in the result.
His statements, therefore, do not affect the government in the trial, nor are
they admissible because of his death. Subject to other rules of admissibility,
e.g., that receiving dying declarations, 93 admissions of accused by non-denial
84. Johnson v. Kerr, 1 Serg. & R. (Pa.) statements made in the application as to
25 (1814). his health and making contradictory state-
85. Niskern v Haydock, 48 N. Y. Supp. 895, ments but where the beneficiary has no
23 App Div. 175 (1897) ; 2 Chamb , Ev., vested interest but is liable to be changed by
1320, n. 1, and cases cited. the insured such statements are admissible in
86. Dennis v. Weeks. 46 Ga. 514 (1872); evidence. Knights of Maccabees v. Shields,
McRainey v. Clark, 4 N. C. 698 (1878). 156 Ky 270. 160 S. W. 1043, 49 L. R A.
87. Titlow v. Titlow, 54 Pa. 216, 93 Am. (N. S.) 853 (1913).
Dec. 691 (1867) 89. 2 Chamberlayne. Evidence. 1321-
88. Bragg v. Geddes, 93 111 39 (1879) : Cal- 1328.
vert v Alvey, 152 X. C. 610, 68 S. E 153 90. Brown v. Brown, 62 Kan 666. 64 Pac.
(1910). 599 (1901): Shields v. Whitaker. 82 N*. C
Executor. Evidence of admissions made 516 '1880): Fay v. Feeley. 18 R. I. 715. 30
by an executor that he had unduly influenced Atl 342 (1894) : 2 Chamb., Ev.. 1321, n 1,
the making of a will is not competent against and cases cited
the beneficiaries. Their interests are not 91. Shepherd v. Hayes. 16 Vt. 486 (1844)
joint and to permit him to prejudice the 92. Smith v. Aldrich. 12 Allen (Mass.) 553
rights of others would open the door to fraud USfifi) : Kinnane v. Conroy. 52 Wash 651,
Re Fowler. 156 X. C 340. 72 S E. 357, 38 101 Pac 223 (1909).
J, R. A. (N. S) 745 (191H 93. Such dying declarations are only re-
The insured cannot prejudice the rights o f ceived in case of homicide, under a very
the beneficiary in the policy by denying tho restricted rule. Com. v. Horner, 153 Mais.
395
INTERESTED PERSONS.
528
of statements made in his presence, 94 that the declaration is part of the res
gestae, 9 * or the like, 96 the assertions of the prosecutor are not receivable for* 7
or against 9S the accused. His or her declarations viewed as admission of a
private prosecutor, would he mere hearsay. 9 *
Corroboration and Impeachment. Naturally such declarations of the in-
jured person may, upon ordinary principles, he received to corroborate * or
impeach 2 the evidence of the injured person should he appear to testify. Thus,
where a question arises as to whether a person alleged to have been injured
by a given act consented to its perpetration, statements at other times, not
too remote from the time of the occurrence to be relevant in a probative sense, 3
may be shown to establish or negative the fact of consent.*
Mental States. There is a marked disagreement in opinion between the
courts in different jurisdictions as to whether the declarations of an injured
person are admissible as to his purpose or intent in visiting the scene of a
given res gestae. Naturally, adopting the view-point of independent relevancy,
judges have held that where the mental state is probative or constituent the
declarations of the injured party logically tending circumstantially to establish
it are to be received. 5 On the other hand, adopting the attitude of scrutinizing
the statement declaring the existence of a given mental state as an assertive one,
the conclusion that it should be rejected as hearsay has impressed certain tribun-
als as inevitable. 6
343, 26 X E. 872 (1891); People v Davis.
56 X. Y. 95 < 1874) ; State v. Harper, 35 Ohio
St. 78, 35 Am. Kep. 96 < 1878) ; 2 Chamb.,
Ev., 1322, n. 1, and cases cited.
94. State v. Dillon. 74 Iowa 653. 38 N. W.
.525 1888) ; People v. Meyers, 7 N- Y. St
Rep. 217 (1837): Moore v. ^cate, 96 Tenn
209. 33 < W. 1046 (1896); 2 Chamb.. Ev.,
1322. n. 2, and cases cited.
95. Bow v People. 160 111. 438, 43 X. K.
593 1 1896) : Com. v. Hackett. 2 Allen (Mass.)
136 (1S61 i : Dickson v State. 39 Ohio S-
I 1SS3) -. 2 Chamb.. Ev.. 1322. n 3. and cases
cited. As to probative fact?, see the same
note and cases cited.
96. Disqualifications by reason of infancy or
imbecility. People v Quonsr Kun. 34 X. Y
Supp 26ft (1893) : Horn heck v. State. 35 Ohio
.,t. 277. 35 Am. Rep. 60S (1879).
97. Oreen v State. 112 r, a . 63*. 37 S. E.
885 (1900): Com. v. Xott. 1"r. Ma.. W>
(1883): 2 Chamb. Ev.. 1322. n 5. and
cases cited. But see People v. Doyle. 12 X.
Y Snpp. 36. 58 Hun 535 (1800 I: State v.
Shorter. 85 S C 170. 67 S. E 131 1910).
98. People v Shattnch. 109 Cal. 673. 42 Pac
315 (1S95) : Com. v. Sanders. 14 Orav
(Mass, i 394, 77 Am. Dec. 335 (1860) : Davis
v. People, 2 Thomps. & C. (X. Y) 212
1873); Benedict v. State. 44 Ohio St 679,
11 X E. 125 (1887); 2 Chamb., Ev, 1322,
n. 6, and cases cited.
99. Graves v. People, 18 Colo. 170. 32 Pac.
63 (1893) : Com v. Chance. 174 Mass 245. 54
X. E. 551, 75 Am. St. Rep. 306 (1899);
People v. Molineux. 168 X. Y. 264, 61 X. E.
286, 62 L. R. A. 193 (1901) ; 2 Chamb . Ev .
1322. n. 7, and cases cited.
1. Dunn v. State, 45 Ohio St. 249 r 12 X E.
826 (1887).
2. Austine v. People, 110 HI. 248 (1884);
Com. v Densmore. 12 Allen (Mass) 535
( 1866) : 2 Chamb., Ev.. 1323. n 2. and cases
cited.
3. Tnfra, 640 et teg. ; 3 Chamb . Ev..
1709 et teg.
4. State v. Perigo. 80 Iowa 37. 45 X. W.
399 (1890). For example, on an issue of
rape, if the prosecutrix denies, as a witness,
that she made a jriven statement, the accused
should reasonably be permitted to show that
she made it. Carroll v State. 74 Miss. 688,
22 So 295. 60 Am. St T?pp. 539 (1897).
5. Hunter v State. 40 X. -T L 495 MS?*) ;
State v Ooodrich. 19 Vt. 116. 47 Am Dec.
676 (18471
6. Adams v. State (Tex Cr. App 1901),
64 S. W. 1055; State v. Power, 24 Wash. 34,
5o ADMISSIONS: EXTRA-JUDICIAL. 396
/
Res Gestae. A res gestae fact constituency relevant is, as has been said,
admissible per se. 7 Statements by an injured person frequently constitute im-
portant facts in the res gestae. As such, they are uniformly and unquestion-
ably admissible; 8 although not by virtue of any law or rule relating to the
procedural rules under which admissions are received.
Test of Beneficial Interest. He who will be entitled to receive the proceeds
of success, or a portion of them or who would be obliged to respond to an
adverse result in the event of failure 10 is beneficially interested within the
rule. The interest of the proposed declarant in the issue of the litigation must,
morover, be direct rather than indirect, 11 present and actual, rather than future
and contingent. It should be pecuniary and proprietary 12 rather tban be
induced by a sentimental concern based on natural relationship, 13 professional
connection 14 or some similar cause. Neither a public prosecutor in a criminal
proceeding, 15 even one whose private wrongs rest on the same facts on which
a public prosecution is based and who, therefore, will be affected by the issue, 16
nor a person interested in the same rights as are involved in the pending litiga-
tion 1T are real parties in interest within the meaning of the rule.
Persons Acting in Fiduciary Capacity. Where the trustee is deemed a
nominal party, the declaration of the person whom he represents is competent. 18
Where on the other hand the trustee is regarded as being, at law, the actual
party to the litigation the statements of the cestui que trust are rejected. 19 In
this case, only the representative capacity of the declarant will be regarded. 20
Statements made before the trustee acquired the representative capacity, 21 and
'after he has parted with it, or ceased to represent the estate, 22 are inadmis-
sible.
63 Pac. 1112 (1901) ; 2 Chamb., Ev., 1324, 15. Green v. State, 112 Ga. 638, 37 S. E.
n. 3, and cases cited. 885 (1901).
7. Infra, 840 et seq.j 4 Chamb., Ev., 16. Com. v. Sanders, 14 Gray (Mass.) 304
2594 et seq, (1860); State v. Knock, 142 Mo. 515, 44 S.
8. Lander v. People, 104 111. 248 (1882) ; W. 235 (1898); 2 Chamb., Ev., 1326, n. 9,
Com. v. Crowley, 165 Mass. 509, 43 X. E. and cases cited.
509 (1895); State v Kaiser, 124 Mo. 651, 28 17. Hamlin v. Fitch, Kirby (Conn.) 174
S. \V. 182 (1894) ; 2 Chamb.. Kv., 1:525, n. ' (1786).
2, and cases cited. 18. Atchison, etc., R. Co. v. Ryan, 62 Kan.
9. Hamblett v. Hamblett, 6 N. H. 333 682, 64 Pac. 603 (1901); 2 Chamh., Kv.,
(1833). 1327, n. 2, and cases cited.
10. Bayley v. Bryant, 24 Pick. (Mass.) 19R 19. Merchants' L. Assoc. v. Yoakum, 98 Fed.
(1839) ; *Kerchner v. Reilly, 72 N. C. 171 251, 39 C. C. A. 56 (1899); 2 Chamb., Ev.,
(1875). This obligation must be a leal one-. 1327, n. 3, and cases cited.
a moral obligation does not suffice. Stratford 20. Charlotte O. & F. Co. v. Rippv, 123
v. Sanford, 9 Conn. 275 ( 1832 i . X. C. 656, 31 S. E. 879 (1898).
11. Farfield County Turnpike Co. v. Thorp, 21. Horkan v. Benning, 111 Ga. 126, 36 S. E.
13 Conn. 173 (1839). 432 (1900) : Williams v. Culver. 39 Or. 337,
12. 2 Chamb., Ev., 1326, n. 5. 64 Pac. 763 (1901).
13. Taylor v. Grand Trunk R. Co., 48 X. H. 22. Freeman v. Brewster, 93 Ga. 648, 21 S.
J04, 2 Am. Rep. 229 (1869). E. 165 (1894).
14. Underwood v. Hart, 23 Vt. 120 (1850).
39'
PlUVIES.
539
539. [Extra- Judicial Admissions] ; Admissions by Privies. 23 Upon the es-
tablishment to the satisfaction of the judge, 24 of circumstances which by sub-
stantive law constitute a relation of privity between the declarant and a party
to the record 2r> regarding real property 26 or personal estate, the statements
made by a party standing in such relation are competent as admissions against
the party, if made while the speaker held the title to the interest in respect
to which privity is claimed. 27 The general rule is that statements of relevant
facts made by persons owning real or personal property, made during the con-
tinuance of the ownership are available, as admissions, against a successor in
title, when the latter is a party to a litigation concerning the property. 2 *
Evidence Primary. Declarations of this kind are, like other admissions,
primary evidence. 2 " In impeaching a witness who testities as a privy his in-
consistent declarations on other occasions are competent for purposes of im-
peachment though they would not be available against the party himself as
admissions, e.g., where made after alienation of the res. 30
independent Relevancy; Admissions Distinguished. Unlike the statement
of a privy offered as the admission of a party to the litigation, the independently
relevant declarations of a privy are competent in a litigation between third per-
sons ; :n they may be received although self-serving, 32 or m(ade after alienation
of the interest in respect to which the privity is claimed. 33
23. 2 Chamherlayne, Evidence, 1329-
1336.
24. Aiken v. Cato, 25 Ga. 154 (1857);
Houston v. McCluney, S \\ . Ya 135 (1874).
25. " The term privity means mutual or
successive relationship to the same rights of
property. The executor is in privity with
the testator, the heir with the ancestor, the
assignee with the assignor, the donee with
the donor, the lessee with the lessor." Mc-
Donald v. Gregory, 41 Iowa 513 (1875).
Receivers. There is no such privity between
successive receivers appointed hy the court
that the petition filed hy a predecessor is
admissible against one subsequently ap-
pointed. Liverpool & L. & O. Ins. C'o. v.
McNeill (Or. 1898), SO Fed. 131. 32 C. C. A.
173 [certiorari denied 172 U. S 647. 19 S.
Ct. 885, 43 L. ed. 1182 (1898)1.
26. Langley v. Andrews. 142 Ala. 665. 38
NX 238 i 1005) . Statements regarding bound-
aries in disparagement of extent of territory
claimed are within the rule. Towner v.
Thompson. 82 Ga. 740. S. E. 672 (1889);
Elgin v Beckwith. 119 111. 367. 10 X. E 558
(1887) : Bush v. Hicks. 2 Thomps. i C. (X.
Y.) 356 (1873) ; 2 Chamb., Ev., 1329, n. 3.
and cases cited.
27. Elliott v. Western Coal & Mining Co..
243 111. 614, 90 X. E. 1104 (1910) : Floyd v.
Kulp Lumber Co., 222 Pa. 257, 71 Atl. 13
(1908).
28. Binney v. Hull, 5 Pick. (Mass.) 503
(1827): Brown v. Patterson. 224 Mo. 639,
124 S. \\*. 1 1 1009 i : Jackson v. McChesney,
7 Cow. (X. Y.) 360. 17 Am. Dec. 521 (1827) :
2 Chamb., Ev.. 1320. n. 5. and cases cited.
See discussion of privity and agency in gen-
eral, 2 Chamb., Ev., 1328. Declarations of
grantor, see note, Bender ed.. 110 \ Y. 536.
Declarations of donor after gift t. !.: effect
ineffective, see note, Bender ed.. 194 N" Y 65.
29. Sandifer v. Hoard, 59 III. 246 -1871);
Coit v. Howd. 1 Gray (Mass.) 547 (1854);
Bristol v. Dann, 12 Wend. (X. Y.) 142. 27
Am. Dec. 122 (1834) ; 2 Chamb.. Ev.. 1330,
n. 1, and cases cited. They are equally com-
petent though the declarant is present in
court and available as a witness. Guy v.
Hall. 7 X. C. 150 (18191.
30. Vogt v. Baldwin, 20 Mont. 322. 51 Pac.
157 (1897).
31. Steed v. Knowles. 97 Ala. 573, 12 So.
75 (1893).
32. See Guild v. Hull, 127 Til. 523. 20 N.
E. 665 (1889) ; Gay v. Gay, 26 Ohio St. 402
(1875): 2 Chamb., Ev.. 1332, n. 2. and
cases cited.
33. Howell v. Howell, 59 Ga. 145 (1877).
539 ADMISSIONS: EXTRA-JUDICIAL. 398
Claim. For example, that a former possessor of real 34 or personal 35 prop-
erty lias declared during the time of his possession 36 that he owned it, is not,
indeed, under the rule against hearsay, any evidence that he, as a matter
of law and fact, did own it. But such declarations are evidence that the
possessor claimed to do so. They characterize his possession as adverse, and
so are available to a subsequent holder. In general, such statements are com-
petent as to the nature, 37 extent, 38 and other essential features of the possession.
Disclaimer. The rule is the same as to disclaimer of ownership regarding
real 39 or personal 4U property.
Mental Condition. The mental condition of the declarant, standing in rela-
tion of privity to the party as to his mental capacity to do certain acts 41
may be material. If so declarations of the predecessor in title tending sub-
stantially to establish the existence of a relevant mental condition are competent.
They are not, however, exceptions to the rule excluding hearsay, nor are they
admissions. 42
Mental State. It may be necessary to establish the existence of other
probatively relevant 43 facts in connection w r ith a predecessor in title. Among
the constituent, or res gestae 44 facts to be established in a given case with regard
to a predecessor in title may be the existence, on his part, of a mental state
relevant to the issue. 45 This may happen when it is necessary to establish
intent in connection with domicil, 46 the existence of fraud or its absence, or in
making proof of other facts. 47 Assent 48 or knowledge whether acquired by
notice 40 or otherwise 50 stand in the same position.
iee Independent Relevancy, in geaeral, 2 Fellows v. Smith, 130 Mass. 378 (1881); 2
Jhamb., Ev., 1331. Chamb., Ev., 1334, n. 2, and eases cited.
34. Peck, etc., Co. v. Atwater Mfg. Co., 61 41. Howell v. Howell, 59 Ga. 145 (1877) :
:onn. 31, 23 Atl. 699 (1891); Herscher v. Dowie v Driscoll, 203 111. 480, 68 N E. 56
Crazier, 38 Jll. App. 654 (1890) ; Hurlburt v. (1903).
iurlburt, 128 X. Y. 420, 28 N. E. 651, 26 Am. 42. 2 Chamb., Ev., 1335.
5t. Rep. 482 i 1891) ; 2 Chamb., Ev., 1333, 43. Briee v. Lide, 30 Ala. 647, 68 Am. Dec.
i. 1, and cases cited. 148 (1857) ; Roeber v. Bowe, 30 Hun (N. Y.)
35. Guy v. Lee, 81 Ala. 163, 2 So. 273 379 (1883).
1886); Wilson v. Albert, 89 Mo. 537, 1 S. 44. Cook v. Knowles, 38 Mich. 316 (1878).
V. 209 (1886); 2 Chamb., Ev., 1333, n. 2, 45. Gibbs v. Estey, 15 Gray (Mass.) 587
i.nd cases cited. (1860) ; Norfolk City Nat. Bank v. Bridgets,
36. Tierney v. Corbett, 2 Mackey (D. C.) 128 N. C. 322, 38 S. E. 888 (1901) ; 2 Chamb.,
!64 (1883). Ev., 1336, n. 3, and cases cited.
37. Wisdom v. Reeves, 110 Ala. 418, 18 So. 46. Wilson v. Terry, 9 Allen (Mass.) 214
3 (1895). (1864).
38. Austin v. Andrews, 71 Cal. 98, 16 Pac. 47. Whitney v. Wheeler, 116 Mass. 490
>46 (1886); Gratz v. Beates, 45 Pa. 495 (1875); Hopkins v Clark, 35 N. Y. Supp.
1863) ; 2 Chamb., Ev., 1333, n. 5, and cases 360, 90 Hun 4 (1895) ; 2 Chamb., Ev., 1336,
ited. n. 5, and cases cited.
39. New Jersey Zinc, etc., Co. v. Lehigh 48. Beecher v. Parmele, 9 Vt. 352, 31 Am.
:inc, etc., Co., 59 N. J. L. 189, 35 Atl. 915 Dec. 633 (1837): Gibbs v. Estey, supra.
[1896): 2 Chamb, Ev., 1334, n. 1, and 49. Fisher v Leland, 4 Cush. (Mass.) 456,
ases cited. 50 Am. Dec. 805 (1849).
40. Smith v. Page, 72 Ga. 539 (1884); 50. Bicknell v. Mellett, 100 Mass. 328, 35
390
AGENTS.
510
540. [Extra- Judicial Admissions]; Admissions by Agents. 51 As related to
procedure in connection with admissions, the substantive law of agency con-
tents itself with declaring that the declarations of an agent, whenever such
statements would, under the laws of agency, affect the principal, 52 are compe-
tent against the latter, as his admissions whenever he appears as party to an
action to the issues of which the fact stated by the agent is relevant.
Agency Must be Affirmatively ^hoini. Unless the fact be admitted, 53 that
the relation of agency itself exists between the declarant and the party against
whom the declaration is offered it must be affirmatively shown, 54 by the pro-
ponent of the statement, to the reasonable satisfaction of the judge. This may
be done by direct testimony including that of the agent himself. 55 or by a resort
to circumstantial evidence. 56
Proof of Agency by Declarations of Agent. While the testimony of an agent
to the existence of the agency is unquestionably competent, 57 the agent's as-
sertions are rejected, 58 except where ratification 59 or other corroborative or
confirmatory evidence 6 is submitted or promised. The evidence as a whole
must be sufficient to warrant the jury, as reasonable men, in finding the exist-
ence of an agency. 61 The court may accept the statement of the agent,
X. E. 1130 (1894) ; Adams v. Bowerman, 109
X. Y. 23. LI X. E. S74 1 1888) ; 2 Chamb., Ev..
1336, n. 8. and cases cited.
51. 2 Chamberlayne, Evidence, 1337-
1342.
52. Brickell v. Camp Mfg. Co., 147 X. C.
118, 60 S. E. 905 (1908) ; Tenhet v. Atlantic
Coast Line R. Co., 82 S. C. 465, 64 8. E. 232
( 1909) ; 2 Chamb., Ev., 1337, n. 1. and cases
cited. Admissions of servant against master,
see note, Bender ed., 54 X. Y. 335. Admis-
sibility of declarations showing necligence
from breach of duty by servant or agent as
against principal, see note, Bender ed., 106
N. Y. 172.
53. Bihby v. Thomas. 131 Ala. 350, 31 So.
432 (1901).
54. Howell v. YV. F. Maine & Co.. 127 Oa.
574, 56 S. E. 771 (1907) : Pease v. Trench.
197 111. 101, 64 X. E. 368 (1902): Walkeen
Lewis Millinery Co. v. Johnston, 131 Mo. App.
693, 111 S. W. 639 (1908) ; Arnold v. Rock-
land Lake, etc., Co., 108 X. Y. Supp. 296,
123 App. Div. 659 (1908): Schwalhach v.
Chicago, etc.. R. Co.. 73 Wis. 137. 40 X. W.
579 (1888) ; 2 Chamb., Ev., 1338, n. 2. and
cases cited
55. Davis v. Anderson, 163 Ala. 385. 50 So.
1002 (1909); Connor v. Johnson. 59 S. C.
115, 37 S. E. 240 (1900).
Physician. The plaintiff is not bound by
statements made by his physician where the
defendant asks for a statement from the at-
tending physician and the plaintiff asks him
to make one where the plaintiff never saw the
statement and did not know what it con-
tained. The physician cannot be put in the
same class with a referee to whom the plain-
tiff has referred a question. Aldridge v.
.Etna Life Ins. Co., 204 X. Y. 83, 97 X. E.
399, 38 L. R. A. (N. fc>.) 343 (1912).
56. Porter v. Robertson, 34 111. App. 74
(1889) ; Hannan v. Greenfield, 36 Or. 97, 58
Pac. 888 (1899).; 2 CTiamh.. Ev.. 1338. ns.
4, 5, 6.
57. See last preceding section ; McRae v.
Preston, 54 Fla. 190, 44 So. 946 (1907).
58. Castner v. Rinne, 31 Colo. 256, 72 Pac.
1052 (1903) : State v. Oder, 92 Iowa 767, 61
X. W. 190 (1894); Richmond Iron Works v.
Hayden, 132 Mass. 190 (1882): Bank of X.
Y. Banking Assoc. v. American Dock, etc..
Co., 143 X. Y. 559. 38 X. E. 713 (1894): 2
Chamb., Ev.. 1339. n. 2. and cases cited.
59. Toledo, etc., R. Co. v. Hsher. 13 Tnd.
258 (1859): Marsh v. Hammond. 11 Allen
(Mass.) 483 (1866).
60. Louisville, etc., R. Co. v. Tift. 100 Ca.
86, 27 S. E. 765 (1896): Shesler v. Patton.
100 X. Y. Supp. 286. 114 App. Div. 84>
(1906).
61. Peters v Davenport. 104 Towa 625. 74
X. \Y. f. (1898) : Wendell v. Abbott, 45 X. H.
349 (1864).
540
ADMISSIONS: EXTRA- JUDICIAL.
400
de bene, contingent upon the introduction of evidence showing the agency. 62
Statement Must be Within, Scope of Agency. t'nder the general rules of
agency, the statement must be made within the scope of the agency, actual or
constructive. The declaration must be made while the agent is engaged on
the business of the principal, and in course of bona fide G;i effort to advance
his interests by the statement which the agent has made. 64
Specific Authority Must Be Shown. It is necessary not only that the declar-
ant be an agent to do the business on which he is engaged at the time of making
the declaration, but also that he should be authorized to make the declaration
itself.''" 5 Statements prior to the delegation of power to act as agent made by
one who afterwards was given such power are incompetent to affect one who
subsequently became the principal. 60 This rule holds even where, as in case
of the future officers of a proposed corporation, 67 the formation of the rela-
tionship has been definitely prearranged. Equally incompetent to bind the
principal are statements which are made by the agent after the relation of
agency has ended. 08 Xor is it material whether the agency has been re-
voked, 69 or has expired by limitation. In the absence of some proof of special
agency, 70 the near relatives 71 or intimate personal friends of a party in a civil
62. Buist v. (Juice, 96 Ala. 255, 11 So. 280
(1892) ; Smith v. Dodge, 3 X. Y. Supp. 866,
49 Hun 611 (1888); 2 Chamb., Ev., 1339,
n. 7, and cases cited.
63. Sopeland v. Boston Dairy Co., 184 Mass.
207, 68 X. E. 218 ( 1903 ) .
64. Knarston v. Manhattan L. Ins. Co., 140
Cal. 57, 73 Pac. 740 (1003) ; Matzenbaugh v.
People, 194 111. 108, 62 X. E. 546, 88 Am. St.
Rep. 134 (1902); Bergeman v. Indianapolis,
etc., R. Co., 104 Mo. 77, 15 S. Vv. 992 ( 1890) ;
Keeler v. Salisbury, 33 X. Y. 648 (1865);
Patterson v. United Arto/ans, 43 Or. 333, 72
Pac. 1095 (1903); 2 Chamb., Ev., 1340, n.
2, and cases cited.
After agency has terminated. The state-
ment of an agent may be admissible against
the surety even after his agency has ceased
where it is made in pursuance to a duty he
owes his employer. The court sees no reason
why such a statement should not be admis-
sible as part of the res gestae when made as
part of his duty though his principal duty as
agent has ceased. United American Fire Ins.
Co. v. American Bonding Co., 146 Wis. 573,
131 X. \V. 994, 40 L. R. A. (X. S.) 661
(1911).
65. Pacific Mut. L. Ins. Co. v. Walker, 67
Ark. 137, 53 S. W. 675 (1800): Sweeney v.
Sweeney, 110 Ga. 76, 46 S. E. 76 (1903);
Crowley v Boston Elevated Ry Co., 204
Mass. 241, 90 X. E. 532 (1910); Diehl v.
\Yatson, 85 X. Y. Supp. 851, 80 App. Div. 44.1
(1903) ; 2 Chamb., Ev., 1341, us. 1, 2, and
cases cited.
66. Portland First Xat. Bank v. Linn
County Xat Bank, 30 Or. 206. 47 Pac. 614
(1897): 2 Chamb., Ev., 1341, n. 3, and
cases cited.
67. Fogg v. Pew, 10 Gray (Mass.) 409, 71
Am. Dec. 662 (1858): Matter of Kip, 1
Paige (X. Y.) 601 (1829).
68. Atlanta Sav. Bank v. Spencer, 107 Ga.
629, 33 S. E. 878 (1890) -. Pomeroy v. Fuller-
ton, 131 Mo. 581, 33 S. W. 173 (1895) ; Dit-
mars v. Sackett, 30 X. Y. Supp. 721, 81 Hun
317 (1804) ; 2 Chamb., Ev., 1341, n. 5, and
cases cited.
69. Loving Co. v. Hesperian Cattle Co., 176
Mo. 330, 75 S. W. 1005 (1003): Small v.
McGovern, 117 Wis. 608, 04 X. W 651 (1003).
70. A statement made within the scope of
an agency for accused may be received
against him, if otherwise relevant. Pierce v.
State. 100 Tnd. 535, 10 X. E. 302 (1SS6):
Wait v. Com., 24 Ky. L. Rep. 604, 60 S. W.
607 (1903) -. 2 Chamb.. Ev., 1341, n. 7, and
cases cited. Admissions by counsel. An ad-
mission by the defendant's counsel in a crim-
inal case not made witli the client's consent
does not bind him. State v. Beatty. 45 Kan.
492, 25 Pac. 800 (1801); 2 Chamb., Ev.,
1341, n. 7, and cases cited.
401 AGENTS. 540
case or of the accused in a criminal one are not entitled to make admissions
which will affect him.
General and Special Agency. Much with regard to the actual or ostensible
authority of one acting for his principal under a contract of agency '- will be
found to depend, under the substantive law, upon whether the agency itself is
general 7;i or special.' 4
In cane of a general agency the powers necessary for or usually incident
to an agency of the type disclosed will be assumed, in the absence of evidence
to the contrary, to have been conferred upon the agent in any particular case.
For example, the statements of a general agent which may be used against
his principal are not rendered less eftiicacious, nor js the use of such admissions
impaired because of the fact that the principal is ignorant of his acts, or be-
cause of any undisclosed instructions or other limitations upon the agency
which may exist unknown to the person with whom the agent is dealing. 75
The statements of a special agent which may be used against his principal
are governed more strictly by the exact extent of the scope of the agency.
Thus declarations of a special agent must, to be competent, be within the precise
scope of the particular authority delegated and must be made while the
agent is discharging the duties of the particular work which has been com-
mitted to him. 76
The statements of both general and special agents are subject to the applica-
tion of the rules in reference to the exclusion of declarations which do not
form part of the res gestae 77 or which are merely narrative. 78 The general
rule of substantive law that an agent cannot delegate his authority without
the assent of the principal does not apply to ministerial acts to be performed by
the agent. 79
Opinion Excluded. In order that the statement of an agent should bind
his principal, it is essential that his declarations should be one of fact; his
expressions of opinion, inference, conclusion, or judgment are to be rejected. 8(>
71 People v Dixon, 04 Cal. 255, 29 Pac. Atl. 910, 92 Am. St. Rep. 199, 53 L. B. A. 690
504 (1892); People v. McLaughlin, 35 X. Y. (1901). Principal in foreign country.-
Supp 73 13 Mist. 287 (1805) : Com. v. Rob- Scope of general agent conducting business in
ins 3 Pick (Mass) 03 (18251: 2 ("hamb., his absence enlarged. Rothschild v. Schu-
Ev' 8 1341 n. 8. and cases cited. berth, S Bosw. (X. Y.) 280 (1861).
72 See Definitions of a-ency, 2 Chamb.,- 76. Krohn v. Anderson. 20 Ind. App. 379.
F- 8 134 la n 1 64 X E - 621 (]n02) ' Rowe v - Cannev ' 139
'V Rutland v. Southern Rv. Co.. 81 S. C. Mass. 41, 20 X. F, 219 (1885) : Berdan v. J.
448 62 S E Sfio i ions ) A general aarent M. Bour Co.. 10 Ohio Cir. Ct. 127. 6
is'one'emploved in his capacity as a profes- Cir. Dec 154 ,1800) : 2 Chamb., Ev., 1341a,
sional man or master of an art or trade, or n. 5. and cases cited.
one to whom the principal confides his whole 77. Butters Salt, etc, Co. v. \ogel.
busine or all transactions or factions of a Mich. 381. 07 X. \V. 757 (1004) ; infra, 542,
designated class. Black's Law Diet. 2 Chamb., Ev., 1344.
74 \ special agent is one employed to 78. Infra, 542: 2 Chamh., Ev., 1346.
conduct a particular transaction or authorized 79. Bowman v. Lickey, S Mo. App.
to perform a special act Black's Law Diet. (1900).
75. Carney v. Hennessey, 74 Conn. 107. 40 80. School Trustees v. Mitchell, /3 1. App.
541, 542 ADMISSIONS: EXTKA- JUDICIAL. 402
It is even more essential than in cases of direct statements by a party 81 that
the declaration of the agent should be made upon the personal knowledge 82 of
the declarant, rather than based upon his information, inferences, or con-
jectures. 83
541. [Extra-Judicial Admissions]; Admissions by Agents; Evidence is Pri-
mary. 84 Admissions by an agent have the same quality of primary proof which
characterizes other admissions. 85 The declaration is equally competent though
the declarant be in court and available as a witness. 80 The evidence furnished
by the fact of an admission is primary. 87 So, also, the statement continues
competent after the death of the principal, if made by the agent before that
event. 88 It is entirely unaffected by the death of the agent. 89
542. [Extra-Judicial Admissions]; Admissions by Agents; "Res Gestae " in
this Connection. 90 Among the many uses of the term " res gestae " is one in
connection with the law of agency. 01 In stating the rule that the agent must,
in order to affect his principal by his declaration, have been engaged, at the
time when it was made, upon the business of his agency, the word " business "
is Latinized into the familiar res gesfae. The proposition is then announced
that for the declaration of an agent to affect the principal, it must be made as
" part of the res gestae." 2 By the courts of certain jurisdictions it is said
that his declaration must be part of some res gestae fact which it assists to
characterize and explain. 93
Spontaneity Required. Under this " res gestae rule," there is another quali-
fication. It is said that the declaration of an agent is competent as part of
the res gestae when the transaction to which it relates is continuing at the time
of the statement or so recently past as to continue to exercise a controlling in-
543 (1807); Boston, etc, R Co. v. Ordvvay. 90. 2 Chamherlayne, Evidence, 1344-
140 Mass. 510, 5 X. E. 627 (1886) : Rhode v. 1346.
Metropolitan L. Ins. Co., 129 Mich. 112, 88 91. Supra, 31; 1 Chamb., Ev., 47. Res
X. \V. 400 (1001) ; 2 C'hamb., Ev., 1342, gestae as used in the present treatise is con-
n. 1, and cases cited. fined to denoting that portion of the actual
81. Hupra. 528; 2 Chamb., Ev., 1203. world-happenings out of which the right or
82. McCormick Harvester Mach. Co. v. Rip- liability asserted in the action arises, if at all.
ley, 6 Ky T.. Rep. 658 (1885). 92. Luman v. Golden Ancient Channel Min.
" 83. Ft. Smith Oil Co. v. Slover, 58 Ark. Co., 140 Cal. 700. 74 Pac. 307 (1003): U. S.
168, 24 S. W. 106 (1803). Express Co. v. Rawson, 106 Ind. 215, 6 X. E.
84. 2 Chamberlayne, Evidence, 1343. 337 (1885); Allin v. Whittemore. 171 Mass.
85. .S'Hpra, 527; 2 Chamb.. Ev., 1201, n. 250, 50 N. E. 618 (1808) : Raker v. Temple,
6. 160 Mich. 318, 16 Detroit Leg. X. 1002. 125
86. Phenix Mut. L. Tns. Co. v. Clark. 58 N. W 63 (1010): Trueadell v. Chumar, 27
X. H. 164 ( 1877) : 2 Chamb.. Ev.. 1343, n. \. Y. Supp. 87, 75 Hun 416 (1804) : 2 Chamb.,
2, and cases cited. Ev., 1344. n. 2, and cases cited.
87. Smith v. Wallace. 25 \Yis. 55 (1860). 93. Infra. 051 et seq. : 4 Chamb., Ev.,
88. Hines v. Poole, 56 Ga. 638 (1876). 2085 et seq. Waters v. West Chicago St.
89. Van Rensselaer v. Morris, 1 Paige (X. R. Co.. 101 Til. App. 265 (1002): Fogg v.
Y.) 13 (1828); Howerton v. Lattimer, 68 Child, 13 Barb. (X. Y.)' 246 (1852): 2
N. C. 370 (1873). Chamb., Ev., 1344, n. 3, and cases cited.
403 AGENTS. 542
fluence on the mind of the declarant, thus excluding the probability of inven-
tion. 94 In other words, merely narrative statements regarding past events
made by an agent in the full exercise of his inventive or reflective faculties are
excluded. 95 They are deemed " mere hearsay."
Xarratice Excluded. Under the rule admitting statements as part of the
res gestae a declaration narrating past events is, as a rule, inadmissible be-
cause it is lacking in the all important element of spontaneity. Xarrative
statements of an agent are rejected under the substantive law because it is no
part of his agency to talk about his principal's affairs. It has proved easy to
say, in either case or aspect, that the agent's statement is no part of the res
gestae. In other words, the narrative statement of an agent 96 as to past trans-
actions, 97 even those not long past, 98 is excluded, in the two cases ; although
by a different rule and for a different reason.
As a matter in the law of agency, it may be said that an agent is not in
general required or authorized by the terms of his agency to discuss, post
factum?* his principal's conduct x or affairs, especially his legal rights or
liabilities. 2 Only dum fervet opus, while the business is going forward, is
it that the agent has any mandate from his principal which could empower
the agent to affect the principal by his statements. 3 Even where the authority
continues until the work entrusted has been completed, 4 the declaration of the
agent is competent against the principal only when the statement itself is an
authorized act of agency. The same rule refuses to give any effect, as against
the principal, to the admission of the agent made after a transaction has been
completed. 5 The agent is not at liberty to talk in pais about a past transaction
94. Steelier Lithographic Co. v. Inman, 175 Mich. 218, 75 X. W. 459 (1898); Walter A.
V Y. 124, 67 X. E. 213 (1903) ; Shafer v. Wood Mowing, etc.. Mach. Co. v. Pearson, 64
Lacock, 168 Pa. 407, 32 Atl. 44, 29 L. R. A. Hun 638, 19 X. Y. Supp. 485 (1892); 2
254 (1895) ; 2 C'hamh., Ev., 1345, n. 1, and Chamb., Ev., 1346. n. 5, and cases cited,
cases cited. 1- Koch v. Godshaw, 12 Bush (Ky.) 318
95. See next section. For an illustrative (1876).
instance of the rule, see 2 Chamb.. Ev., 1345. 2. McKenna v. Gould Wire Cord Co., 197
96. Cherokee, etc., Coal, etc., Co. v. Dick- Mass. 406. 83 X. E. 1113 (1908); Shaver v.
eon, 55 Kan. 62. 39 i ac. 601 (1805) : Clarke Xew York, etc.. Transp. Co., 31 Hun (N. Y.)
v. Anderson. 14 Daly ( X. Y.) 464 (1888): 55 (1883); 2 Chamb., kv., 1346, n. 7, and
2 Chamb., Ev., 1346. n. 2. and cases cited. cases cited.
97. Silveira v. Iversen. 128 Cal. 187. 60 Pac. S.Adams v. Humphreys, 54 Ga. 496
687 (1000): Pennsylvania Co. v. Kenwood ( 1875) : Chicago, etc., R. Co. v. Riddle, 60 111.
Bridge Co., 170 111. 645, 40 > E. 215 (1808): 534 (1871); Gilmore v. Mittineague Paper
Geary v. Stevenson, 160 Mass. 23. 47 X. E. Co., 160 Mass. 471, 48 X. E. 623 (1897);
508 (1897) : Kay v. Metropolitan St. R. Co., Anderson v. Rome, etc.. R. Co.. 54 X. Y. 334
163 X. Y. 447. 57 X. E. 751 (1000): Root v. (1873): 2 Chamb., Ev.. 1346, n. 8. and
Monroeville. 16 Ohio Cir. Ct. 617. 4 Ohio Cir. cases cited.
Dec. 53 ( 1S04) -. 2 Chamb., Ev., 1346, n. 3, 4. Union Bank v. Wheat. 58 Mo. App. 11
and cases cited. (1894): Graham v. Schmidt, 1 Sandf. (N.
98. Goehring v. Stryker (Pa. 1000). 174 Y.) 74 (1847).
Fed. S07: Rogers v. McCune, 19 Mo. 557 5. Goehring v. Stryker. supra : Tillotson V.
(1S54). McCrillis, 11 Vt. 477 (1839).
99. Maxson v. Michigan Cent. R. Co., 117
543 ADMISSIONS: EXTRA-JUDICIAL. 404
to the injury of his principal, though the declarant took, memoranda during the
progress of the transaction and proposes to speak from them. 6 The same re-
sult follows even where the statement is made by an agent as a witness in
court. 7
Admissions May be in Narrative Form. As a matter of agency, the state-
ments of the agent, where suitable authority is shown, not only may be but
frequently are in narrative form. The statement of a party being rendered
competent by the rules of procedure, 8 his declaration made personally or "by
agent, though narrative, is competent either in a civil !) or criminal l " proceed-
ing.
Admissions by Conduct.' In case of a party, or of one identified with him
in legal interest under the provisions of substantive law, 11 not only are his
statements, though narrative, received, the same rule applies to his so-called
" admissions by conduct." 12 For example, where statements, though narrative,
are made in the presence and hearing of the party under circumstances i: which
require or permit his silence, partial statement, or other conduct rationally to
be construed as raising an inference of acquiescence in the truth of the state-
ments made, they may be offered in evidence. 14
543. [Extra-Judicial Admissions]; Admissions by Agents; Independent
Relevancy Distinguished. 15 As distinguished from statements, a verbal act is
viewed as being complete in itself, not as constituting a vehicle for the assertion
of a fact. Generally, the term '' statement " is broad enough to embrace both
the assertive declaration and the verbal act. There is, in essence, no real
difference between the two classes of fact which the law of evidence persistently
seeks to differentiate. 16 While all statements are verbal acts, all verbal acts
are not assertions.
Probative or Constituent Acts of an Agent. Verbal acts of an agent may
constitute or assist to constitute 17 a transaction involving legal consequences, 18
8. Morris v. Brooklyn Heights R. Co,, 47 13. Infra, 566 et seq. ; 2 Chamb., Ev..
N. Y. Supp. 242, 20 App Div. .157 (1*97 I. 1418 et seq.
7. Canadian Bank of Commerce v. Coumbe. 14. Lampkin v. State, 87 Oa. 516, 13 S E.
47 Mich. 358, 11 N. W. 196 (1882). 523 (1891); People v. Foley, 64 Mich. 148,
8. Supra, 56 et seq.; 1 Chamb., Ev., 3' N W. 94 (1887): 2 Chamb., Ev., 1346.
123 et seq n 19. and cases cited.
9. Gulzoni v Tyler, 64 Cal 334, 30 Pac. 15. 2 Chamberlayne, Evidence, 1347-
981 (18831: Tyler v. Xelson. 109 Mich 37. 1350.
66 N". W. 671 (1896); Barrett v New York 16. Infra, 837: 4 Chamb., Ev., 2580.
Cent., etc., R. Co, 157 N Y 663 (|899i. 2 2 Chamb., Ev., 1347
Chamb., Ev , 1346, n. 14, and cases cited. 17. The statements of an ajrent may con-
10. Texas v. Davis, 104 Tenn 501, 58 S W. stitute the basis upon which a transaction
122 (1900): Johnson v. State, 8 Wyo. 494, takes place. Lewis v. Burns. 106 Cal 381,
58 Pac. 761 (1899). 39 Pac 778 (1895); Kelly v Campbell, 2
11. Supra, 538 et seq.; 2 Chamb, Ev., Abb. Dec. (N. Y.) 492, 1 Keyes 29 (1863);
1328 et sten. 2 Chamb , Ev., 1348, n. 1. and cases cited.
12. Infra, 559 et seq ; 2 Chamb., Ev., 18. Ohio, etc, R. Co v. Porter. 92 111. 437
1392 et seq. (1879) ; Murray v. isweasy, 74 X. Y. Supp.
405
AGEXTS.
5-t3
as an acceptance, 19 claim, 20 an oral contract, 21 disclaimer, 22 fraud, 23 offer, 24
ouster, 25 ratification, 26 waiver, 27 or the like, provided such acts are done in
pursuance of the authority conferred by the agency 28 or the acts have been
ratified by the principal. 29
Impeachment, Inconsistency, Etc. The statements of an agent may be used
to impeach his testimony 30 or invalidate his claim by showing that it is in-
consistent with his present conduct. 31
Narrative Statements Independently Relevant. It is by no means material
in this connection that the statements of the agent, when used for purposes of
contradiction or proof of any other deliberative fact should be in narrative
form. 32
Mental State. In accordance with the general rule of evidence that where
the existence of a mental state by a given person at a certain time is probative,
the fact may be proved by appropriate declarations of the person in question, 33
the statements of an agent may be independently or circumstantially relevant
to establish the existence on his part of intent 34 or intention, 33 knowledge, 36
motive, 37 or other material ;{8 mental state. 39 As the statement is merely a
543, 69 App. Div. 45 (1902) ; Tillyer v. Van
Cleve Glass Co., 13 Ohio Cir. Ct. 99, 7 Ohio
Cir Dec. 209 (1896) ; 2 Chamb., Ev., 1348,
n. 2, and cases cited
19. Fischer Leaf Co. v. Whipple. 51 Mo.
App. 181 (1892)
20. Barker v. Mackay, 175 Mass. 485, 56
X. E. 614 (1900); Smith v. Sargent, 4
Thomps. & Co. (X V ) 684 (1874) ; 2 Chamb..
Ev., 1348, n. 4. and cases cited
21. Blessing v. Dodds, 53 Ind. 95 (1876) ;
Steinhach v. Prudential Ins Co., 70 N. Y.
Supp. 809, 62 App. Div. 133 (1901); 2
Lliamb., Ev., 1348. n. 5, and cases cited.
22. Pearson v. Adams, 129 Ala. 157, 29 So.
977 (1900).
23. U. S. Home Assoc. v. Kirk, 8 Ohio Dec.
(Reprint) 592. 9 Cine. L. Bui. 48 (1882): 2
Chamb., Ev.. 1348. n 7. and cases cited.
24. Gray v. Rollinsford. 58 X. H. 253
(1878).
25. Morgan v. Short, 34 N. Y. Supp. 10.
13 Misc. 279 (1895).
26. U. S. v. Conklin, 1 Wall. (U. S.) 644,
17 L. ed. 714 (1863)
27. Zielke v. London Assur. Corp , 64 Wis.
442, 25 X. W. 436 \ 885).
28. Capital F. In*. Co. v Watson. 7f> Minn.
387. 70 X. W. 601, 77 Am. St. Rep. 657
(1899).
29. Paul v. Berry. 78 Til. 158 H875) : Liv-
ingston MirUlleclitch C'o. v Xe\v York Den-
tistry College, 64 N. Y. Supp. 140, 31 Misc.
259, 7 N. Y. An. Cas. 398 (1900) ; 2 Chamb.,
Ev., 1348, n. 13, and cases cited.
30. Pettibone v. Lake View Town Co., 134
Cal. 227, 66 Pac. 218 (1901): Stillwell v.
Xew York Cent. R. Co., 34 X. Y. 29 (1865) ;
2 Chamb., Ev , 1349, n. 14, and cases cited.
31. Roth v. Continental Wire Co., 94 Mo.
App 236, 68 S. W. 594 (19021.
32. Farmers' Bank of Wic-kliffe v Wickliffe,
131 Ky. 787, 116-S. W. 249: Riggs v. Metro-
politan St. Ry. Co., 216 Mo. 304, 115 S. W.
969 (1909).
33. Infra, 847 et seq.; 4 Chamb., EV.,
2643 et seq.
34. Consolidated Ice Mach. Co. v. Keifer,
134 111. 481, 25 X. E 799, 23 Am. St. Rep.
688, 10 L. R. A 696 (1890) ; Jones v. Jones,
120 X. Y. 589, 24 X. E. 1016 (1890); 2
Chamb., Ev., 1349. n. 2, and cases cited
35. Ball v. Bennett, 21 Ind. 427, 83 Am.
Dec 356 (1863).
36. Denver v. Cochran, 17 Colo. App. 72,
67 Pac. 23 (1902) ; Chapman v.' Erie R. Co.,
55 X Y. 579 (1874) : Youn<i*town v. Moore.
30 Ohio St. 133 (1876): 2 Chamb.. Ev.,
1349, n. 4. and cases cited.
37. Strohmeyer v. Zeppenfeld. 28 Mo. App.
268 (1887).
38. Evans v. Boyle. 94 Towa 753. 64 X. W.
619 (1895).
39. Georgia R. Co. v. Smith. 76 Ga. 634
(1886): Jones v. Jones, supra; 2 Chamb.,
Ev., 1349, n. 7, and cases cited.
544 ADMISSIONS: EXTRA-JUDICIAL. 406
fact tending to prove the existence of a state of m-ind from which it would
naturally arise, it may properly precede 40 or follow 41 the time at which the
existence of the mental state is of importance.
Statements Throuyh Interpreter. The foregoing rnles with relation to the
statements of agents in general, both as affecting the principal by way of admis-
sion or as independently relevant, apply equally, mutatis mutandis, to cases
where the agent is an interpreter. 42
544. Form of Extra-Judicial Admissions; Adoption. 43 It is not essential that
the statement should have originally been made by a party. It may have
been the declaration of another person and adopted by the party as his own.
This may be done indirectly ; as where an inference of acquiescence arises
from silence under circumstances naturally calling for a reply. 44 The adopted
statement may be oral, or, in writing; as where an insured person or beue-
liciary adopts the findings of a coroner's inquest 45 or other written statement 46
as part of his proofs of loss.
Oral. The oral declaration of a party is competent against him under all cir-
cumstances, 4 7 even though a written admission 4S contained in an instrument of
a formal character 49 upon books of account 50 or in a written contract 51
exists to the same effect.
Completeness will be required. Where, therefore, the admission is con-
tained in an answer in response to a question, the latter, so far as reasonably
necessary to the complete understanding of the admission, will be received in
evidence. 52
Evidence is Primary. Though the declarant is present in court and available
as a witness, evidence of his oral statement will be received. The " best evi-
dence rule " r>;! so called, docs not apply to admissions, even where the statement
40. International, etc., R. Co. v. Telephone, 46. Wasey v. Ins. Co., 126 Mich. 110, 85
etc., Co., 69 Tex. 277, 5 S. W. 517, 5 Am. St. N. W. 459 ( 1904 ) ; Modern Woodmen v.
Rep. 45 (1887). Kozak, 63 Neb. 146, 88 N. W. 248 (1901):
41. Keough v. Scott County, 28 Iowa 337 2 Chamb., Ev., 1351, n. 3, and cases cited.
(1869); Paper Works v. Willett, 1 Rob. (N. 47. Leyner v. Leyner, 123 Iowa 185, 98
Y.) 131 (1863). X. W. 628 (1904);' Stewart v. Gleason, 23
42. Miller v. Lathrop, 50 Minn. 91, 52 N. Pa. Super. Ct. 325 (1903) ; 2 Chamb., Ev.,
\v. 274 (1892) ; Wright v. Maseras, 56 Barb. 1352. n. 1, and cases cited.
(N. Y.) 521 (1869); 2 Chamb., Ev., 1350, 48. Bayliss v. Cockcroft, 81 N. Y. 363
n. 1, and cases cited. (1880); Cross v. Kistler, 14 Colo. 571, 23
43. 2 Chamberlayne, Evidence, 1351- Pac. 903 (1890).
1353. 49. Bimon v. Keery, 66 N. Y. Supp. 817,
44. Infra, 566 et seq.; 2 Chamb., Ev., 54 App. Div. 318 (1900).
1418 et seq. As to direct acquiescence, see 50. 2 Chamb., Ev., 1352, n. 4, and cases
State v. Wooley, 215 Mo. 620. 115 S. W. 417 cited.
(1908) ; State v. Peterson, 149 N. C. 533, 63 51. Newhall v. Holt, 4 Jur. 610, 9 L. J.
S. E. 87 (1908). Exch. 293 (1840).
45. Walther v. Ins. Co., 65 Cal. 417. 4 Pac. 52. State v. Price, 121 La. Ann. 53, 46
413 (1884); U. S. Life Ins. Co. v. Kielgast, So. 99 (1908).
26 111. App. 567 (1887); 2 Chamb., Ev., 53. Supra, 227 et seq.; 1 Chamb., Ev.,
1351, n. 2, and cases cited. 464 et seq. See also, Southern Bank of
ADOPTION. 545, 546
is in writing. The copy of a letter, if shown to be correct, is as admissible in
this connection as iue IL-H.LT itsi'lf would be if produced. 54
Criminal Cases. As in civil cases, the criminal admission is primary evi-
dence. It is not, therefore, material that the fact covered by the admission
could have been proved by the testimony of a witness who is not produced. 55
545. [Extra- Judicial Admissions] ; References to Another. 50 A rather
anomalous rule is that which admits, by virtue of an agency thereby created. 57
statements of a person to whom a party has referred another for information
which shall be final r ' 8 regarding a given matter which is uncertain or in dis-
pute. 59 These statements by the referee are admissible, in favor of the person
referred, 60 as against the party referring, as the admission 01 of the latter. If
the reference is to a number of persons, they must be definitely ascertained 2
or readily ascertainable. The intention, moreover, to refer must be clearly
shown. 63 The statement of the referee must be one of fact 64 and appear to
have been made by one who possesses adequate information on the sub-
ject. 05
546. [Extra-Judicial Admissions] ; Writing. 6 ? An admission may be in
any written form capable of conveying thought regardless of its formality and
of whether the writing is valid for the purpose which it seeks to accomplish. 67
The declaration m!ay be received as an admission although the document
which contains it may have been void ab initio because contrary to law 6S or
as it was not executed with the necessary formalities 69 or has been avoided by
act of an individual entitled to do so. 70 The only important consideration
Fulton v. Nichols, 202 Mo. 300, 100 S. W. 63. Robertson v. Hamilton, supra.
613 (1007). 64. Lambert v. People, 76 N. Y. 220, 32
54. Kelly v. MoKenna, 18 Mich. 381 ( 1869) . Am. Rep. 293 (1879) : 2 Chamb., Ev., 1354,
55. Com. v. Kenney, 12 Mete. (Mass.) 235, n. 9, and cases cited.
46 Am. Dec. 672 (1847). 65. Hood v. Reeve, 3 C. & P. 532, 14 E. C.
56. 2 Chamberlayne, Evidence. 1354, L. 700 (1828). As to action conditioned on
1355. that of others, see 2 Chamb., Ev., 1355, and
57. Duval v. Covenhoven, 4 Wend. (X. Y. ) cases cited.
561 (1830) : Jennings v. Haynes, 1 Ohio Cir. 66. 2 Chamberlayne, Evidence, 1356.
Ct. 22, 1 Ohio Cir. Dec. 13 ( 1885) : 2 Chamb., 67. Hickey v. Hinsdale, 12 Mich. 99 (1863) ;
Kv., 1354, n. 1, and cases cited. Morrell v. Cawley, 17 Abb. Pr. (X. Y.) 76
58. Over v. Schiffling, 102 Ind. 101. 26 X. (1863): Reis v. Hellman. 25 Ohio St. 180
E. 91 (1885) ; Wehle v. Spelman, 1 Hun (X. (1874) : 2 Chamb., Ev., 1356, n. 1, and cases
Y.) 634, 4 Thomps. & C. 640 (1874): 2 cited.
Chamb., Ev., 1354, n. 2, and cases cited. 68. Ayres v. Bane. 30 Towa 518 (1874).
59. Robertson v. Hamilton. 16 Ind. App. 69. Lusk v. Throop, 80 111. App. 509. aff'd
328, 45 X. E. 46, 50 Am. St. Rep. 310 (1806). ISO 111. 127, 50 X. E. 529 (1000). Lack of
60. Cohn v. Goldman, 76 X. Y. 248 (1870). delivery seems to preclude a statement con-
61. Craig v. Craig. 3 Rawle (Pa.) 472, 24 tained in the document so retained from hav-
Am. Dec. 390 (1832) ; McElwee Mfg. Co. v. ing effect as an admission. United Press v.
Trowbridge, 22 N. Y. Supp. 674, 68 Hun 28 A. S. Abell Co.. 80 X. Y. Supp. 454, 79 App.
(1893). Div. 550 (1003).
62. Rosenbury v. Angell, 6 Mich. 508 70. Indianapolis Chair Mfg. Co. v. Wilcox,
(1859). 59 Ind. 429 (1877).
547 ADMISSIONS: EXTRA-JUDICIAL. 408
is that the party has made it. 71 The responsibility of the party for the
document in question, his having written, authorized or ratified it, must be
clearly shown. Surmise or conjecture is not sufficient. 72
547. [Extra-Judicial Admissions] ; Book Entries. Written admissions are
frequently contained in book entries. 74 In fact, entries in books of account
which the party himself has -made 75 or which are made by others under his
supervision or control, 70 are among the most commonly employed vehicles for
written admissions. As the only fact of importance is that the party made
the entry or is responsible for it, the form in which the book containing it is
kept, 77 or the nature of the book itself is of but little consequence, in relation
to adinissibility. The book may be only a " blotter " 78 or it may be torn
or otherwise mutilated. 70 The proponent, however, cannot select such of a
series of connected items as serve his purpose and exclude the rest. The
entries that help his adversary are equally competent so long as they are
connected with those introduced as admissions. 80 But the opponent cannot
produce in evidence another book, in no way related to the first, 81 and use it for
his own purpose.
Banks. Books kept by a bank in its business may be received in evidence
arid the relevant statements therein contained pointed out to the court as
admissions made by the bank. 82 The depositor's bank book which the
bank keeps for the depositor, showing amounts placed in the bank's custody
by the depositor is admissible against the institution. 83 If the bank keeps its
accounts with its customer on an envelope, the piece of paper would be equally
71. Facts essential to the validity or oper- burg City F. Ins. Co. v. Frothingham. 122
ation of a document may be established by Mass. 391 (1877) ; Nelson v. New York, 131
parol evidence. Saunders v. Dunn, 175 Mass. N. Y. 4, 29 N. E. 814 (1892) ; 2 Chamb., Ev.,
164, ,55 N. E. 893 (1900): 2 Chamb., Ev., 1357, n. 3, and cases^cited.
1356, n. 5, and cases cited. 77. Loewenthal v. McCormick, 101 111. 143
72. Rex v. Lawrence. 25 N Zealand L. Rep (1881).
129 (1905). Adoption by Party. A litigant 78. Beyle v. Reid, 31 Kan. 113, 1 Pac. 264
may give the force and eJl'ect of an admission (1883).
to any document statements of which be sees 79. McLellan v. Crofton, 6 Me. 307 (1830).
fit to adopt as his own. Weidner v. Olivit, 96 80. Dewey v. Hotchkiss, 30 N. Y. 497
N. Y. Supp 37, 108 App. Div. 122 (1905). (1864) : Rowan v. Chenoweth, 49 W. Va. 287,
73. 2 Chamberlayne, Evidence, 1357- 38 S. E. 544 (1901).
1363. 81. Bently v. Ward, 116 Mass. 333 (1874) ;
74. German Nat. Bank v. Leonard. 40 Neb. Doolittle v. Stone, supra.
676, 59 N. W. 107 (1894): infra, 977 et 82. Johnson v Culver, 116 Ind 278, 19 N.
seq.; 4 Chamb., Ev., 3051 et seq. E. 129 I 1888) ; Com. v. Ensign. 40 Pa. Super
75. Com. v. Clark, 145 Mass. 251, 13 N E. Ct. 157 (1909).
888 (1887); Doolittle v. Stone. 136 N Y. 83. Nicholson v. Randall Banking Co , 130
613, 32 N T . E. 639 (1892) : Hallec-k v. State, 11 Cal. 533, 62 Pac. 930 (1900) : Atlanta Trust,
Ohio 400 (1842) ; 2 Chamb., Ev., 1357, n. 2, etc., Co. v. Close, 115 Ga. 939, 42 S. E. 265
and cases cited. (1902) : Jermain v. Denniston. 6 N. Y. 276
76. San Pedro Lumber Co.. v. Reynolds, (1852): 2 Chamb., Ev., 1358, n. 2, and
121 Cal. 74, 53 Pac. 410 (1898); Williams- cases cited.
409 BOOK ENTRIES. 5-17
admissible. 84 It is not necessary to produce the clerk who actually made
the entry. 83
Loan Agencies, Railroads. The admission may be contained on the books
of a loan agency. 86 Books kept by railroad agents are within the rule. 87
The report of a railroad company to the tax assessors may be competent
against the company in proceedings for the abatement of taxes assessed on
the basis of that particular report. 88
Admissions of Non-owner of Books. The entry set forth on a book of
account may be used as containing the admission of a person other than the
owner or keeper of the book or of some principal, for whom he is lawfully
acting. This may happen where the other party to the transaction makes
the entry himself upon the book of his associate in the agreement, sale or the
like, 89 or he sees or is informed, without objection on his part, as to the fact
and nature of the entrv. 90 The rule is the same where the entrv is made by
v */ /
mutual consent of the parties, as the settlement of their accounts. 91 Where
a clerk makes an entry, relating to himself, and his employer has occasion
to sue him, the entry then becomes the admission of him who made it. 92
In other words, an entry by A. upon his own books, made against B. is the
admission of B. if B. has in any way consented to its correctness. 93 Should
a merchant, tradesman or the like write upon the pass book held by the cus-
tomer an entry concerning the delivery of goods, etc., the entry is the admis-
sion of the seller. 94 The effect of the pass book has, however, been limited
to the matter of receipt of goods, 95 the question of fairness of price being
proved in some other way. Where a clerk makes upon his employer's
books an entry favorable to himself, he is entitled to show the fact and the
silence of his principal or employer as constituting an admission by the
latter. 96
When Original Entries Need Not be Produced. Where the object of the
84. L'Herbette v. Pittsfield Isat. Bank, 162 (1898) ; Earle v. Reed, 10 Mete. (Mass.) 387
Mass. 137, 38 X. E 368, 44 Am St. Rep 354 (1845)
(1894). 92. Williamsburg City F. Ins. Co. v. Froth-
85. Watson v. Phoenix Bank, 8 Mete ingham, supra ; Lucas v. Thompson. 27 N. Y.
(Mass) 217, 41 Am. Dec 500 (1S44). Supp 659. 75 Hun 584 (1894): Stetson v.
86. Dexter v. Berge, 76 Minn 216. 78 X. New Orleans City Bank. 12 Ohio St. 577
W. 1111 (1899). (1861) : 2 Chamb., Fv , 1360, n. 4, and cases
87. Louisville, etc . R. Co. v. McGuire. 79 cited.
Ala. 395 (1SS5) : Root v. Great Western R 93. Bartlett v. Tarhox, 1 Abb Dec. (X. Y.)
Co., 55 X. Y. 636. affg 65 Barb 619 (1873). 120. 1 Keyes 495 (1864): Halleck v. State,
88. Atchison, etc.. Ry. Co. v. Sullivan 11 Ohio 400 ( 1842) .
(Colo. 1909). 173 Fed. 456, 97 C. C A. 1:2 94. Folsom v. Grant, 136 Mass. 493 (1884) ;
Chamb., Ev., 1359. Ruck v. Fricke, 28 Pa. 241 (1857).
89. Rembert v Brown, 14 Ala 360 (1848). 95. Hovey v. Thompson. 37 111. 538 (1865).
90. Reviere Y. Powell. 61 Ga. 30, 34 Am 96. Wiggins v. Graham. 51 Mo 17 (1872);
Rep. 94 (1878); Tucker v. Stephens. 4 Rockwell v. Merwin. 1 Sweeney (X. Y.) 484,
Thomps. & C. (N. Y.) 593 (1874) : 2 Chamb.. 8 Abb. Pr. (N. S.) 330, aff'd 45 N. Y. 166
Ev.. 1360, n. 2, and cases cited. (1869).
91. McDavid v. Ellis, 78 111. App. 381
548 ADMISSIONS: EXTRA-JUDICIAL. 410
evidence is to prove that the opposite party admitted or assented to the cor-
rectness of an account, the book of original entries need not be produced. 97
Xor, on the other hand, where the party has admitted the correctness of a
particular account, is it necessary to produce the ledger, though it appear
that the items have been posted. 98
Effect of Agency. Upon familiar principles, an entry not made, adopted
or authorized by the party, does not in general, affect him as his admission."
Banks. Where the parties to the transaction have each deposited in the
same bank and the institution is the common agent for both in keeping their
accounts, its books are admissible against either of the parties in favor of
the other as being authorized admissions. 1
Partnersh ip Books. The entries upon partnership books, made by the
partners, or one of them or by their authorized clerks and employes, are the
admissions of all partners who had access to the books. 2
Real Estate. The books of a real estate agent do not affect the principal
where the latter had no right to make entries upon the books, or, in any way,
exercise supervision and control over them. 3
Independent Relevancy. Where the relevant fact is that certain entries are
on the books, and that therefore a party knew of them, rather than that they
are correct, the fact that the books are incorrectly kept, in that other items
also should have been entered, is not material. 4
548. [Extra- Judicial Admissions] ; Business Documents. 5 t Business docu-
ments other than book entries such as contracts, 6 reports, 7 settlements, 8 and the
like, 9 which are commonly used in the ordinary transaction of business, 10 may
well constitute the vehicle for an admission. A favorite form of written
admission is the account stated, or account rendered. 11 Applications for in-
surance policies may stand in the same position. 12
97. Snodgrass v. Caldwell, 90 Ala. 319, 7 6. Springer v. Chicago, 37 111 App. 206
So. 834 (1890); Darlington v. Taylor, 3 ( 1890) ; Lynch v. Troxell, 207 Pa. 162, 56 Atl
Grant (Pa) 195 (1855). 413 (1903).
98. Stetson v. Godfrey, 20 N. H. 227 7. Roche v. Llewellyn Iron Works Co., 140
(18f)0); 2 Chamb, Ev., 1361. Cal. 563, 74 Pac. 147 (1903); Merrill N'at.
99. Davison v West Oxford Land Co., 126 Bank v. Illinois, etc.. Lumber Co., 101 Wis.
N. C. 704, 36 S. E 162 (1900); 2 Chamb., 247, 77 N. W. 185 (1898); 2 Chamb, Ev.,
Ev ., $ 1362, n. 1, and cases cited. 1364, n. 2, and cases cited
1. Oliver v. Phelps, 21 X. .1. L 597 (1845). 8. Miller v. Campbell Commission Co., 13
CONTRA: Perrine v. Hotchkiss, 58 Barb Okl 75, 74 Pac. 507 (1903).
(N. Y.) 77 (1870) 9. Putnam v. Gunning, 162 Mass. 552, 39
2. Eden v. Lingenfelter, 39 Ind 19 (1872): N. E. 347 (1895); Weidner v. Olivit. 188
Tucker v. Peaslee. 36 N. H. 167 (1858) ; Fair- N. Y. 611, 81 N. E. 1178 (1907) : 2 Chamb..
child v. Fairchild, 64 X Y. 471, aff'g 5 Hun Ev.. 1364. n 4. and cases cited
407 i 1876) ; 2 Chamb , Ev., 1363, n. 1, and 10. Ackerman v. Berriman, 113 N. Y. Supp.
cases cited. 1015 (1909).
3. McKeen v. Providence County Sav Bank, 11. Wotherspoon v. Wotherspoon, 49 N. Y
24 K. I 542, 54 Atl. 49 (15)02) Super. Ct 152 (1883): Thorn v Smith, 71
4. Foster v Fifield, 29 Me 136 (1848). Wis. IS, 30 X W. 707
5. 2 Chamberlayne, Evidence, 1364. 12. Trudden v Metropolitan Life Ins. Co..
411 COMMERCIAL PAPER; LETTERS. 549, 550
549. [Extra-Judicial Admissions] ; Commercial Paper. 13 Promissory notes, 14
specialties under seal, 1 "' and other negotiable instruments or other specimens
of commercial paper may be used in evidence as containing admissions.
550. [Extra-Judicial Admissions] ; Letters. 16 Official business or social let-
ters are equally available for the proof of admissions. , It must, however,
be shown by the proponent that the party against whom the admission is
offered is responsible for the letter. This may be done (1) by affirmative
evidence that he has written it, 17 (2) that the actual writer had been previ-
ously authorized to make the statement by the party against whom it is now
offered, or (3) that the latter, upon adequate information, has ratified the
deed of one who without previous authority has acted as his agent. 18 Under
any of these circumstances, the statements are competent against the writer, 19
although the person offering the evidence is not the one to whom the letter
was originally sent. 20 The writing, if written by or for the party to be
affected by it as his admission, may well have been written to any third
person, the writer's attorney 21 or even to a newspaper. 22
Completeness Required. Where an admission is said to be stated in a
letter, the admitting party is entitled to have the whole letter or even the
entire correspondence of which it. forms a part so far as relevant placed be-
fore the tribunal. 23 This he may himself do at a subsequent stage of the
trial, 24 unless the proponent puts in the entire correspondence, as tending to
explain the crucial statements on which, in reality, he is relying. 25 Where
a part of a letter has gone in evidence anything in it which tends to explain
64 X. Y. Supp. 183, 50 App. Div 473 (1900) ; 18. Neely v. Xaglee, 23 Cal 132 (1863).
Taylor v. Grand Lodge A. O U. W. of Minne- 19. Conant v Evans. 202 Mass 34, 88 N. E
sota, 101 Minn. 72, 111 X. W. 919 (1907). 438 (1909); Rapp v. Platt, 117 X. Y Supp.
13. 2 Chamberlayne, Evidence, 1365. 987 (1909) -. Russell v. Weiler, 28 Ohio Cir.
14. Travis v. Barger, 24 Barb (X. Y.) 614 Ct. 176 (1905) ; Griffin, etc., Co. v. Joannes,
(1857) ; Hennessy's Estate, 4 L T. (X. S.) 80 Wis. 601, 50 N. W. 785 (1891) ; 2 Chamb.,
( Fa.) 9 1 1882) ; 2 Chamb., Ev., 1365, n. 2, Ev., 1366, n. 3, and cases cited.
and cases cited. It is not necessary that the 20. Downey v. Taylor (Tex. Civ. App.
document itself should actually have been 1898), 48 S W. 541: Little v. Keyes, 24 Vt.
shown to a party to make his admission of 118 (1851) ; 2 Chamb., Ev., 1366, n. 4, and
its genuineness competent. It is sufficient cases cited
that it has been read to him and has received 21. Lyle v. Higginbotham, 10 Leigh (Va.)
his assent. Stewart v. Gleason, 23 Pa. Super 63 ( 1839)
Ct. 325 i 1903). 22. Beecher v. Pettee. 40 Mich 181 (1879).
15. Jobe v. Weaver. 77 Mo. App 660 23. Stringer v Breen, 7 Ind App. 557. 34
(1898) : Lefevre v Silo. 98 X. Y. Supp 321. X. E. 1015 (1893) : Trischet v. Hamilton Ins
112 App. Div. 464 (1006): 2 Chamb.. Ev., Co., 14 Gray (Mass, 456 (I860): Raymond
1365, n 1, and cases cited. v. Rowland. 17 Wend. (X. Y) 380 (1837);
16.2 Chamberlayne, Evidence, 1366- 2 Chamb , Ev . 1367, n. 1, and cases cited.
1370. 24. Supra. 272 et seq.; 1 Chamb., Ev.,
17. Quarles v. Littlepage, 2 Hen. & M. 518 et seq.
(Va.) 401. 3 Am. Dec. 637 (1808): McDer- 25. Buffum v. York Mfg. Co., 175 Mass,
moot v. Mahoney, 139 Iowa 292, 115 N. W. 471, 56 N. E. 599 (1900).
32. 116 N. W. 788 (1908): 2 Chamb., Ev.,
1366, n. 1, and cases cited.
550 ADMISSIONS: EXTRA-JUDICIAL. 412
or qualify the portion of the document which is used is also admissible. 26
A litigant cannot produce a letter which evidently is an answer to a previous
part of the correspondence without submitting the latter 27 or accounting for
its absence by showing that it has been lost, 28 or is, for some other reason,
beyond his power to produce. If it is beyond his power to produce the letter,
he must prove its contents, or leave the other party to do so, if the latter's
knowledge is more complete on the subject than his own. 29 A party cannot,
however, put in evidence his own self-serving letter merely because it was
written in reply to a letter from his opponent. 30
The general rule as to completeness does not apply to cases where a party
seeks to put in evidence a letter received by him from a third person in
reply to a letter of his own. He is not required to prove the contents of his
own letter, or produce it, as a preliminary to introducing the letter received
by him when the sender is dead or is, for some other reason, beyond his
power to exhibit as a witness, e. g., where the sender is out of the jurisdic-
tion. 31 Where it is intended to offer only a special and particular admission,
not affected by the rest of the correspondence, the proponent of the admission
need not produce the entire series of letters. 32 This is especially reasonable
as a rule where the letter offered in evidence explains itself. 33 The sender
of the letter is not entitled to insist that the entire writing shall be received
in evidence, in such a way as to give him the benefit of his own self-serving
statements. 34 The letter to which the one containing the competent statement
is itself in reply, need not be produced 35 nor its absence explained. 36 Nor
is it material that, on account of the death of the declarant, the person pro-
ducing his letter could not testify against his estate to the same facts as are
admitted in the document itself. 37
Criminal Cases. The rules regulating the operation of the canon of com-
pleteness in this connection are equally applicable in criminal 38 as in civil
cases.
Self-serving Statements Not Competent. Letters and the like, not sent
Walker v. Griggs, 28 Ga. 552 (1859) : 31. Hayward Rubber .Co. v. Duncklee, 30
Glover v. Stevenson, 126 Ind. 5.32, 26 N. E. Vt 29 (1856)
486 (1890); 2 Cliamb., Ev., 1367, n. 4, and 32. Stone v Sanborn, supra: Dainese v.
cases cited. Allen. 45 How. TV (N. Y.) 430 (1873); 2
27. Belmont Coal Co v. Richter, 31 W. Va. Chamb , Ev.. 1367, n. 10. and cases cited.
858, 8 S. E. 609 (1888). . 33. Brayley v. Ross. 33 Iowa 505 (1871).
28. Failure to make such a submission and 34. Leslie v. Morrison. 16 U. C. Q. B. 130
even the voluntary destruction of the con- (1858).
nected documents by the producing party 35. Wiggin v. Boston, etc., Co., 120 Mass,
have been held merely to affect the probative 201 (1876).
weight of the admission shown. Stone v. San- 36. Mortimer v. Wright, 4 Jur. 465, 9 L. J.
born, 104 Mass. 319, 6 Am Rep. 238 (1870) Exch. 158 (1840).
29. Newton v. Price, 41 Ga. 186 (1870). 37. Harriman v. Jones, 58 N. H. 328
30. Houde v Tolman, 42 Minn. 522, 44 N. (1878).
W. 879 (1890).
413 NOTICES, ETC. 551-553
to the opposite party or some one whose acts affect him are not, as a rule,
receivable iii the writer's favor. 39
M inor Details. It has been considered better practice, where the pro-
ponent desires to use only a portion of a letter as a written admission that v
he should produce in evidence the entire document; reading to the 'jury
such parts as he relies upon and leaving his opponent to do the same. 40
Where a portion of the letter is missing, the document itself is competent
unless it appear that the portion which is absent is material and cannot be
supplied. The opponent is not at liberty to refuse to assist in solving the
question of materiality and simply insist upon the rejection of an uncompleted
letter. 41
551. [Extra- Judicial Admissions] ; Obituary Notices. 42 Obituary notices
stand in much the same position as that occupied by tax-lists. 43 Assuming
that the declarant is possessed of adequate knowledge the feelings deemed
appropriate to the writing of such a composition excuse, if they do not justify,
such lack of precision in statement as to remove all evidentiary quality. 44
552. [Extra-Judicial Admissions] ; Official Papers. 45 Public records, such
as accounts, inventories, 46 schedules 47 and other probate or bankruptcy pro-
ceedings may contain relevant admissions of a party. It is deemed essential,
however, that the statements should be properly connected with the party
himself, e. g., where he has personally made, revised 48 or otherwise adopted
them. 49 Statements in records of various kinds may be used in this way. 50
The returns of officers upon writs, executions, and the like may constitute
admissions of the official whose acts they purport to record. 51
553. [Extra-Judicial Admissions] ; Professional Memoranda. 52 Abstracts of
title, 53 books of claims, 54 and other legal documents or writings used in pro-
38. Humph v. State, 91 Ga, 20. 16 S. E. (1856) -. 2 Chamb., Ev., 1372, n. 1, and cases
104 (1892) : Com. v. Harden, 163 Mass. 453, cited.
40 X. E. 846 (1895) ; 2 Chamb., Ev., 1368, 47. Rankin v. Busby (Tex. Civ. App. 1894),
n. 1, and cases cited. 25 S. W. 678
39. Snow v. Warner. 10 Mete. (Mass.) 132, 48. Henkle v. Smith, 21 111. 238 (1859):
43 Am. Dec. 417 (1845); J. K. Armsby Co Downs v. New York Cent. R. Co., 47 X. Y.
v. Eckerly, 42 Mo. App. 299 ( 1890) : 2 Chamb . 83 ( 1871 ) .
Ev.. 1369, n. 1. and cases cited. 49. Rich v. Flanders. 39 X. H 304 (1859) ;
40. Lester v. Piedmont, etc.. Ins. Co., 55 Ga Klatt v. X. C. Foster Lumber Co., 92 Wis. 622,
475 (1875); Raphael v. Hartman, 87 111. 66 X. W. 791 (1896).
App. 634 ( 1899 ) . 50. Lyon v. Phillips. 106 Pa. St. 57 (1884) ;
41. Van Vechten, 20 X. Y. Supp. 140. 65 2 Chamb., Ev.. 1372. n. 5. and cases cited.
Hun 215 (1892:) 2 Chamb.. Ev.. 1370. 51. Woodward v. Larking. 3 Esp. 286
42. 2 Chamberlayne. Evidence. 1371. (1901).
43. Infra, 554; 2 Chamb.., EV.. 1374. 52. 2 Chamberlayne. Evidence. 1373.
44. Hull's Will. 117 Towa 738, 89 N. W. 53. Ege v. Medlar, 82 Pa. 86 (1876); 2
979 (1902) ; 2 Chamb.. Ev.. 1371. Chamb., Ev., 1373.
45. 2 Chamberlayne, Evidence. 1372. 54. Webster Mfg. Co. v. Schmidt. 77 111.
46. Dupuy v. Harris, 6 B. Mon. (Ky.) 534 App. 49 (1897).
(1846): Morrill v. Foster. 33 N. H. 379
554-556 ADMISSIONS: EXTKA-JUDICIAJ.. 414
fessional work in law or conveyancing may be introduced into evidence as
containing admissions.
>< 554. [Extra-Judicial Admissions] ; Tax Lists. 55 So far as the written return
required or permitted by law, of property subject to assessment made by
the owner for purposes of taxation, contains an enumeration of the property
of the taxpayer, it has been held by certain courts that, in view of the motives
which may be assumed to have actuated the declarant, no quality of an evi-
dentiary value should attach to a statement so made. 56 On the other hand,
it has been strenuously insisted that good faith to the cause of justice forbids
that a man should not be held to the truth of a solemn declaration under oath,
and the party is accordingly affected by the declaration not alone as an ad-
mission operating directly as to the fact of ownership, or lack of it ; 57 but
as a circumstance tending to establish the fact as to whether the declarant
claimed 38 or did not claim 59 to own it. The declarant may not when acting
in entire good faith be possessed of competent knowledge regarding the value
of his property. 60 He may be more or less warped, consciously or uncon-
sciously, by the financial penalty attached to placing a high valuation. A
statement made under these circumstances is not available as an admission
on the question of value. 61
555. [Extra-Judicial Admissions] ; Temporal or Ephemeral Forms of Writing. 62
- The writing containing the admission need not be of a permanent nature.
A newspaper article, 63 and even more fugitive publications, are equally ad-
missible with the most solemn instrument. It is not even essential that the
admission should have been committed, as a whole, to the writing. 64 The
computation of interest on a note, 05 mathematical calculations, 66 the footings
of bookkeepers 7 and the like, will be received.
556. [Extra-Judicial Admissions] ; Transmission by Telephone. 68 Oral ad-
missions may be communicated by any means usually employed, as through
55. 2 Chamberlayne, evidence, 1374. 792 (1893); Randidge v. Lyman, 124 Mass.
56. Tuckwood v. Hanthorn. 67 Wis. 326, 361 (1878) ; 2 Chamb., Ev., 1374, n. 7, and
30 N. W. 705 (1886). cases cited.
57. Comstock v. C.rtndle, 121 Ind. 459. 23 62. 2 Chamberlayne, Evidence, 1375.
N. E. 494 (1S89) ; Mifflin Bridge Co. v. Juni- 63. Edwards v. Watertown, 13 X. Y. Supp.
ata County, 144 Pa. 365, 22 Atl. 896. 13 L. R. 309, 59 Hun 620 (1891). Southern Pac. Co.
A. 431 (1891); 2 Chamb., Ev., 1374, n. 2, v. Godfrey (Tex. Civ. App. 1908). 107 S. \V.
and cases cited. 1135, railroad folder or time-table.
58. Washburn v. Dannenberpr Co., 117 Oa. 64. Manning v. City of Lowell, 173 Mass.
567, 44 S. E. 97 (1903) ; Lefever v Johnson, 100, 53 N". E. 160 (1899).
79 Ind 554 (1881) 65. Harris v. Burley. 10 X. IT. 171 HS39).
59. Lefever v. Johnson, oipra; Whitfield v. 66. Pendexter v. Carleton, 16 X. IT. 482
Whitfield, 40 Miss. 352 t' '" i . (1845)
60. This is still more lear where the de- 67. Rutler v. Cornell, 148 111 276. 35 X. E.
clarant is not the owner. San Jose, etc., R 767 (1893i : 2 Chamb.. Ev., 1375. ns. 6, 7,
Co. v. Mayne. 83 Cal. 566. 23 Pac. 522 ( IS90) . and cases cited.
81. Swaim v. Swaim. 134 Ind 596, 33 X. E 68. 2 Chamberlayne, Evidence. 1376.
415 SCOPE. 557
a telephone operator, 69 or by the direct use of the telephone itself. 70 . The
rule is the same even in criminal cases, 71 provided the speaker be properly
identified. 72
557. Scope of Extra-Judicial Admissions. 73 In general, such a statement
carries all fair inferences with it. 74 There are, however, obvious limits as
to how far an inference should reasonably extend. It is not, for example,
a reasonable inference to presume the existence of a fact from its express
denial. 75
Contents of a Writing. The rule laid down by the English courts 76 that
the contents of a written instrument, even the most form,al, may be established
by an oral admission as to what they are, has been followed in certain Ameri-
can jurisdictions. 77 The English rule has not been adopted by other
tribunals either as proof of contents 78 or of the execution 79 of the document.
Criminal Cases ; Facts of Conduct. Admissions in criminal cases may
cover any probative fact in the conduct of the accused. It may be shown, for
example, by the admissions of the accused that he has fled from justice, 80
attempted to break jail 81 or aided the escape of others. 82 The fact that such
statements by an accused may show the commission of other crimes furnishes
no ground for excluding them. 83 The doing of other criminal r.cts, how-
ever, cannot be shown by the prisoner's admissions for the mere purpose of
discrediting him or showing bad character. 84
Physical Facts. Any physical or bodily facts affecting the prisoner in a
probative way may be established by his admissions. Thus, he may prove
his own age 85 or race 86 or the fact that he has been married 87 by an ad-
69. Sullivan v Kuykendall, 82 Ky. 483, 56 App. 355 (1894); Cooley v. Collins. 186
Am. Hep. 901 (1885). Mass. 507. 71 X.. E. 979 (1904); 2 Chamb.,
70. Godair v. Ham Nat. Bank, 225 111. 572, Ev., 1378, n. 2, and cases cited.
SO X. E. 407 (1007); Star Bottling Co. v. 78. Jameson v. Conway. 10 111. 227 (1848);
Cleveland Faucet Co., 128 Mo. App. 517, 100 Hasbrouck v. Baker, 10 Johns. (X. Y.) 248
S. W. 802 (1908) : 2 Chamb., Ev., 1376, n. 2, (813).
and cases cited. See Rimes v. Carpenter, 114 79. Palmer v. Manning, 4 Den. (X. Y.) 131
N. Y. Supp. 06, 61 Misc. 614 (1909). (1847).
71. People v Ward, 3 X. Y. Cr. 483 (1885). 80. Thomas v. State. 100 Ala. 53, 14 So.
72. Stepp v. State, 31 Tex. Cr. :UO, 20 S. 621 (1892).
W. 753 (1892). 81. State v. Jackson, 95 Mo. 623, 8 S. W.
73. 2 Chamherlayne. Evidence. 1377- 749 (1888).
13S2. 82. Campbell v. State. 23 Ala. 44 (1853).
74. Sloan v. Digjrins, 40 Cal. 38 (1874): 83. Gore v. People. 162 111. 250. 44 X. E.
Rendlemann v. Willard, 15 Mo. App. 375 500 (1806).
(1884) : Xew York Ice Co. v. Parker, 8 Bosw. 84. Henderson v. Com., 16 Ky. L. Rep. 289,
(X. Y.I 688 (1861) : 2 Chamb.. Ev., 1377, 27 S. W. 808 (1804) : 2 Chamb., Ev., 1379,
n. 1, and cases cited. n. 5.
75. Clarendon v. Weston, Ifi Vt. 332 (1844). 85. People v. Tripp, 4 X. Y. Leg. Obs. 344
76. See Slatterie v. Pooler, fi M. & \Y. 664 (1846).
HS60) : 2 Chamb., Ev., 1378, n. 1. and 86. Bell v. State, 33 Tex. Cr. IfiS. 25 S. W.
cases cited "60 (1*041.
77. Denver, etc., R. R. v. Wilson, 4 Colo. 87. Tucker v. People, 117 111. 88, 7 X. E.
558 ADMISSIONS: EXTEA-JUDICIAL. 416
mission. The identity of one accused of crime may be admitted by him. 88
Mental Conditions. Declarations of accused are receivable as admissions
to establish mental conditions, as the mental capacity necessary for the com-
mission of crime. 89 Even the conclusion or inference on the part of the
accused is competent against him, regarding this matter. 90 The declaration
of the prisoner that he was feigning insanity at a given time will be received
against him as an admission. 91
Mental State. Declarations of accused are admissible to show the exist-
ence of mental states. Thus the government may show that the prisoner has
admitted having guilty knowledge. 92 Such an admission may either directly
allege the existence of the mental state or, on the other hand, it may assert
the existence of probative facts from which the mental state may be inferred,
for example, where the accused says he committed other crimes the effect
of which is to show guilty knowledge on the occasion in question. 93 Criminal
intent 94 may be established in the same way.
558. Probative Force of Extra-Judicial Admissions. 05 Extra-judicial ad-
missions range in probative force from the faintest trace of probability up to
statements which carry an overwhelming weight of conviction. 06 So great
is the effect of variations in deliberateness, 97 lack of motive to misrepresent,
means and extent of knowledge, and the like, that it would be impossible
with any approach to logical accuracy to speak of the probative value of
admissions as a class. It is possible, however, to make certain deductions
with confidence. In the absence of an estoppel, extra-judicial admissions
are not conclusive. 98 It may fairly be said, further, that in so far as any
particular admission is one in the popular sense, its probative force is in-
creased. 99 Likewise, where a declarant makes a statement obviously con-
trary to that which he knows to be his pecuniary or proprietary interest, or
51 (1886); Stanglein v. State, 17 Ohio St. 94. State v. Long, 103 Ind. 481, 3 N. E.
45.3 (1807) ; 2 Chamb., Ev., 1380, n. 4, and 169 (1885). Compare People v. Corhin, 56
cases cited. X. Y. 363, 15 Am. Kep. 4-27 (1874).
88. Com. v. Gay, 162 Mass. 458, 38 X. E. 95. 2 Chamberlayne, Evidence. 1383-
112 (1894); State v. Elhvood, 17 R. 1. 763, 1391.
24 Atl. 782 (1893). 96. Pence v. Makepeace. 65 Ind. 345, 365
89. State v. Kring, 74 Mo. 612 (1881); (1879); Lipsey v. People, 227 111. 364, 81 X.
People v. Tripp. supra. E. 348 (1907).
90. State v. Kring. supra. 97. Holmes v. Connable, 111 Iowa 298. 82
91. Cogswell v. Com., 17 Ky. L. Rep. 822, X. \V. 780 (1900) : State v. Mickle. 25 I'tali
32 S. \V 935 (1895); 2 Chamb., Ev., 1381. 179, 70 Pac. S56 (1902): 2 Chamb., Ev.,
n. 5, and cases cited. 1383. n. 2, and cases cited
92. Com. v. Crowe, 165 Mass. 139. 42 X. E. 98. Cooper v Central R. Co.. 44 Iowa 134
563 (1895): State v. Hogard. 12 Minn. 293 (1876 1 : State v. Shorter. 85 S. C. 170. 67
(1867) ; 2 Chamb. Ev., 138-. n. 1. and cases S. E 131 (1910).
cited. 99. Simeone v. Lindsay (Del. 1907), 65
93. Com. v. Edgerly. 10 Allen (Mass.) 184 Atl. 778.
(1865) ; infra, 1012 et seq.; 4 Chamb., Ev.,
3228 et seq.
417 WEIGHT. 555
which charges himself with the doing of acts which clearly carry criminal
liability. 1
Criminal Cases. The prosecution in a criminal case, is not by offering
the admission of an accused person, concluded by it, in any sense which
could estop it from denying the truth, in point of fact, of any portion of the
prisoner's statement. 2
Judicial Estimates; Unfavorable. To the judicial observer whose atten-
tion is attracted to the weaknesses by which admissions are occasionally char-
acterized and the ease by which they may be fabricated, they have appeared
as presenting but little probative value ; 3 and, indeed, have seemed danger-
ous evidence on which to rely at all. 4 This is felt to be especially true
where a considerable interval has elapsed since the statement was made. 5
Judicial Estimates; Favorable. To those who have been impressed with
the powerful sense of conviction which admissions are capable of creating
they have seemed judicial instruments of proof of great value. 6 In reality,
for the reasons indicated, generalization is impossible. 7
Not Conclusive in the Absence of Estoppel. It may be regarded as set-
tled that, in the absence of proof of facts which would properly ground an
estoppel and a claim by the adverse party that to allow the proof offered would
improperly prejudice his rights, 8 a litigant, is entitled to introduce evidence
tending to control the probative effect of his admissions. To exclude the
evidence on this ground it is sufficient that it should be made to appear that
some definite preJMdicial substantive legal change would take place in the
rights and relations of the party against whom the evidence is tendered, 9
the testimony which ib offered to control the effect of the prior statement by
the party admitted in evidence for the purpose. The " admission " may
be deemed conclusive also when such is the direct result of a rule of sub-
stantive law, as where an indorser of a negotiable instrument is said to " ad-
mit " (warrant) the genuineness of prior indorsements. 10
1. General Tire Repair Co. v. Price. 115 berge v. Bonner. 88 N V Supp. 91, 94 App.
N. Y. Supp 171 i 1909 i. Div.. 342 (19041: Thompson v. Thompson, 18
2. State v. Wisdom. 119 Mo. 539. 24 S. W. Ohio St. 73 (1868); McClellan v. Sanford,
1037 -1893); Lowenberg v. People. 5 Park 26 \Vis. 595 (1870): 2 Chamb.. Ev.. 1385,
Cr. (N. Y.I 414 i!863): 2 Chamh . Ev.. n. 3. and cases cited.
1384. and oases cited. 6. Ector v. Welsh. 29 Ga. 443 (1859) ; Rob-
3. Freeman v Peterson, 45 Colo. 102. 100 inson v. Stewart. 08 Me. 61 (1878).
Pac. 600 (1909). See. however. Burk v. Hill. 7. Pence v. Makepeace, supra.
119 Ga. 38. 4." S. E. 732 (1903). 8. Caft'eratta v. Cafferatta. 23 Mo. 235
4. Kauffman v . Maier. 94 Cal. 269. 29 Pac. (1856) : Bosert v. Turner. 120 N. Y. Supp.
481, 18 L. R. A 124 i!892); Kinnev v. Mur- 420. 135 App. Div. 530 (1909); 2 Chamb.,
ray. 170 Mo 674. 71 S W 917 (1902) : Gar- Ev.. 1387. n. 2. and cases cited.
rison v. Akin. 2 Barb. (X. Y) 25 ,1847': 9. Batturs v. Sellers. 5 Har. & J (Md.)
t rowell v Western Reserve Bank. 3 Ohio St. 117. 9 Am. Dec. 492 (1820) : Chicago, etc., Ry.
406 (1854) . 2 Chamb.. Ev.. 1385. n. 2. and Co. v. Mashore, 21 Okl. 275. 96 Pac. 630
cases cited (1908) : 2 Chamb.. Ev.. 1387. n. 3. and cases
5. Harris v. Mclntyre, 118 111. 275. 8 X. E cited.
182 (1886); Kinnev v. Murray, supra; Ro- 10. Critchlow v. Parry. 2 Camp. 182 ,1809).
558
ADMISSIONS : EXTRA- JUDICIAL.
418
Declarant May Explain, Supplement. It thus appears that in cases where
no estoppel is shown the declaring party is not concluded by his statement, 11
but may control its effect by other evidence. 12 He may, in any event, deny 13
the truth of the statement, whether oral u or written. 15 He may explain 16
or supplement it. 17 He may show that the statement originated through
mistake, 18 either of law, 19 or of fact. 20 lie may offer evidence tending to
show that his statement was based upon ignorance of important facts, 21 or
was made only by way of jest,- 2
Deceased Persons. Where, as in case of admissions by persons since de-
ceased, no explanation of a statement is available, its probative force is natur-
ally decreased. 2 '* Still, such evidence is frequently regarded as competent, 24
although a judicial warning regarding unreliability may well be war-
ranted.- 5
Criminal Cases. In a criminal case, the party against whom an admission
is offered is at all times at liberty to explain the meaning of what he has
said and the intent with which he said it.-" The circumstance that an ac-
11. See last preceding section. See also.
People v. Ouderkirk, 105 X. Y. Supp. 134. 120
App. Div. 6.10 (1907) : Bruger v. Princeton &
St. M. Mat F. Ins Co., 129 Wis. 281, 109
N. W. 95 (1!)06) ; 2 Chamb., Ev., 1388, n
1, and cases cited.
12. Boyd v. L. H. Quinn Co., 41 N. Y. Supp.
391, 18 Misc. 169 "(1896); Campbell v. Sech,
155 Mich. 634, 1 19 X. W. 922, 15 Detroit Leg.
N. 1105 (1909).
13. Robinson v. Smith, 7 N. Y. Supp. 38,
3 Silv. (N. Y.) 490 (1889).
14. Home Ins. to. v. Atchison, etc., R. Co.,
4 Kan. Auu 60, 46 Pac. 179 (1896); King
v. Ford River Lumber Co., 93 Mich. 172, 53
X. W. 10 (1892); Wall v. New York Cent,,
etc, R Co. (57 N T . Y. Supp 519, 56 App Div.
599 (1900); Bennet v. Kesarty, Wright
(Ohio) 696 (1834); 2 Chamb., Fv., 1388.
n. 4, and cases cited.
15. Illinois Cent. R. Co. v. Cowles, 32 111.
116 (1863): Knight v New England Wor-
sted Co., 2 Cush. (Mass.) 271 (1848); Xew-
comb v. Jones, 37 Mo. App. 475 (1889): 2
Chamb., Ev., 1388, n. 5, and cases cited.
16. Risdon v. Yates, 145 Cal. 210. 78 Pac.
041 (1904); Phoenix Ins. Co. v. Gray, 113
Ca. 424, 38 S. F. 992 (1901) : Thon v. Roch-
ester R. Co., 29 X, Y Supp. 675, 30 id. 620,
83 Hun 443 (1894) : ,-xidy v. Church. 118 X.
Y. Supp. 795. 64 Misc. 7 (1909) (words and
phrases) ; 2 Chamb., Ev., 1388, n 6. and
cases cited
17. Johnson v. Opfer, 58 Xeb. 631, 79 N.
W. 547 (1899) ; Xew \ ork Fidelity, etc., Co.
v. Dorough, 107 Fed. 389, 46 C. C. A. 364
( 1901 ) : 2 Chamb., Ev., 1388, n. 7, and cases
cited. Parol evidence is admissible Sperry
v. Wilcox, 1 Mete. (Mass.) 267 (1840):
Bingham v. Bernard, 36 Minn. 114, 30 X. W.
404 (1886). Privies, agents, coparties, etc.,
occupy the same position. Lang v Met/.ger,
206 111. 475, 69 X. E. 493 (1904): Cady v.
Shepherd. 11 Pick. (Mass.) 400, 22 Am. Dec.
379 (1831) ; Davidson v. Hightmyer. 77 X. Y.
Supp. 977, 38 Misc. 493 (1902): 2 Chamb.,
Ev.. 1388. n. 7, and cases cited.
18. Chicago, etc., R. Co. v. Bartlett, 20 111.
App 96 (1886) ; Moore v. Hitchcock, 4 Wend.
(X. Y.) 292 (1830): Cullen v. Bimm, 37
Ohio St. 236 (1881); 2 Chamb.. Ev.. 1388,
n. 8, and cases cited.
19. Solomon v. Solomon, 2 Ga. 18 (1847)
20. Xewton v. Liddiard, 12 Q. B. 925
(1848)
21. Pennsylvania Ins. Co. v. Telfair, 61 X.
Y. Supp. 322, 45 App. Div. 564 (1899);
Rowen v King, 25 Pa. 409 (1855).
22. Beebe v. De Baun, 8 Ark. 510 (1848).
23. Succession of Gabisso, 122 La. 824, 48
So. 277 (1909).
24. Powers v Johnson, 107 Minn. 476, 120
X. W. 1021 (1!I"M.
25. Hoffman v. Condon, 118 X. Y. Supp.
899. 134 App. Div. 205 (1909).
26. State v. Kirby, 62 Kan. 436, 63 Pac.
752 (1900).
419
WEIGIIT.
558
cused is drunk at the time of making a statement, while its effect is not to render
the evidence inadmissible, may seriously impair its weight.' 2 '
Prima Facie Quality. A prim a facie effect has been accorded to extra-
judicial admissions in general,-"" in the absence of statutory regulation on the
subject.- 9
Question for the Jury. The substantive or procedural law prescribes no
predetermined weight for extra-judicial admissions, whether oral 3 " or in
writing." 1 It leaves the question of weight 32 and construction of an ad-
mission, verbal 33 or written, 34 to the jury, entirely unaffected as to specific
rules as to weight.
Criminal Cases. Decisions in criminal cases to the effect that admissions
alone are not sufficient to convict without proof of the corpus delicti are not
applicable to civil cases. 35
Impeachment. The probative force of admissions is not impeached by
proof of inconsistent statements. 36
27. People v. Farrington. 140. Cal. 656, 74
Pac. 288 (1903); Com. v. Howe, 9 Gray
(Mass.) 110 (1857) ; 2 Chamb., Ev., 1388a,
n. 2, and cases cited.
28. Joralmon v. McPhee. 31 Colo. 26, 71
Pac. 419 (1903); Vinal v. Burrill, 16 Pick.
(Mass.) 401 (1833): Martin v. Farrell, 72
N. Y. Supp 934, 66 App. Div. 177 (1901);
Lane Implement Co. v. Lowder, 11 Okl. 61,
65 Pac. 926 (1901): 2 Chamb., Ev., 1389,
n. 1, and cases cited.
29. Hickman v. Thompson, 28 La. Ann. 265
(1876).
30. Betts v. Betts. 113 Iowa 111. 84 N. W.
975 (1901): Stephens v. Vroman. 18 Barb.
(X Y.) 250 (1854); 2 Chamb., Ev., 1390,
n. 1, and cases cited.
31. Holmes v. Hunt. 122 Mass. 505, 23 Am.
Rep. 381 (1877) : Miner v Baron, 131 N. Y.
677. 30 N E. 481, aff'g 15 X. Y. Supp 491
(1S92); Baldi v. Metropolitan Ins. Co., 18
Pa. Super. Ct. 509 (1902): 2 Chamb., Ev.,
1390, n. 2, and cases cited.
32. Stephens v. Vroinan, supra; Saveland v.
Green, 40 Wis. 431 (1876); Gibson v. Row-
land, 35 Pa Super. Ct. 158 (1908) ; 2 Chamb.,
Ev., 1390, n. 3, and cases cited.
33. Stewart v. De Loach, 86 Ga. 729, 12
S. E. 1067 (1890) ; Stacy v. Graham. 3 Duer
(X. Y.) 444 (1854); 2 Chamb., Ev . 1390,
n. 4, and cases cited.
34. Dampf v. Greener, 46 Hun 675, 11 X. Y.
St. Rep. 90 (1887): Chadwick v. United
States (U. S Ohio 1905), 72 C. C. A. 343,
141 Fed. 225.
35. Xorth v. Zerwick, 97 111 App. 306
(1901).
36. A criminal defendant is not at liberty
to show, in disproof of having made a state-
ment at one time inconsistent with his? present
position, that on another occasion he made a
statement quite in accordance with his present
view. U. S. v. Gleason, 25 Fed Cas. No.
15.216, Woolw. (U. S.) 128 (1867) ; 2 Chamb.,
Ev.,. 1391.
CHAPTER XIX.
ADMISSIONS; 15V CONDUCT.
Admissions by conduct; inconsistent conduct, 559.
silence, 560.
failure to object to written statements, 561.
probative force, 562.
scope of inference ; book entries, 563.
independent relevancy, 564.
falsehood, 565.
silence as />roof of acquiescence, 566.
conditions of admissibility, 567.
statement must have been understood, 568.
denial must be natural, 561).
adequate knowledge, 570.
party must be physically and mentally capable of reply, 571.
probative force and effect, 572.
Statements and other facts, 573.
559. Admissions by Conduct; Inconsistent Conduct. 1 Any act of a party
from which an inference can legitimately be drawn, unfavorable to his pres-
ent interest or contention, as to the existence of a probative or res f/estae fact. 2
is thought to be available to his opponent as an admission. 3 Acts done by a
party suggesting' an inference that his present contention is false or an
exaggeration 4 or is an after-thought may be shown by the adverse interest. 5
Either party may, in like manner, prove that the other has failed to assert
a claim which he now makes, 6 has recognized the validity of a demand which
he at present disputes, 7 or, in other particulars occupied in the past a position
inconsistent with his present one. 8
1. 2 Chamberlayne, Evidence. 1392- 1 Misc. 431 (1892); East Brandywine, etc.,
1400. R. R. v. Ranck, 78 Pa. 454 (18751 -. 2 Chamb.,
2. Supra, 31, 34; 1 Chamb., Ev.. 47, Ev , 1393, n.*3.
51. 7. Lusk v. Throop, 89 111. App. 509. aff'd
3. 2 Chamberlayne, Evidence. 1392. 189 111. 127. 59 X. E. 529 (1900) ; Jones v.
4. Berger v. Abel & Bach Co., 141 Wis 321, Shaltnck, 175 Mass. 415. 56 X E. 736 (1900) ;
124 X W. 410 (1910) Miller v. Savnnnah Ocean Steamship Co., 118
5. Tripp v. Metallic Parking Co.. 137 Mass. X. V. 199. 23 X. E. 462 (1890); 2 Chamb..
499 (1884): Terwillicrer v. Industrial Ben. Ev.. $ K'03. u. 4.
Assoc. 31 X. V. ^-'npp. 03s', S3 TTun 320 8. Coorpia Central R. Co. v. Moseley. 112
(1894) : 2 Chamb.. Ev.. 1393. n. 2 Ca. 914. 38 S. E. 350 (1900): Boston v.
6. Millard v. Adams, 21 X Y. Supp 424. Richardson, 13 Allen (Mass.) 146 (1866);
420
421 INCONSISTENCY. 559
Failure to Advance Present Defense. A plaintiff may well attempt to
show that one who now denies facts essential to liability on his part, failed,
on a previous occasion and under circumstances which would have made a
denial natural, could it have been truthfully done," to set up the denial on
which he now relies. If he, with a fair opportunity of doing so, omitted to
advance his present claim to absence of liability, 1 " such a fact is significant
to the effect that the present defense is an invention. In general a litigant
may show, in the same way, that his adversary, up to the time of formally
denying the claim against him, has acted as if it were true; has previously
assigned a defense which was consistent with the existence of liability on
his part; 11 and instead of disputing the claim itself, has tried to arrange
favorable terms for adjusting it. 12 It has even been held that the proponent
may show, under certain circumstances, that his opponent has settled with
others whose legal position in the matter is no better than that of the plain-
tiff. 13 If these acts shall apparently have been done upon the basis that the
claim that he is liable is a valid one, and not by way of compromise 14 or for
some other reason than because the claim is felt to be a just one, 15 an in-
ference that the party has by his cqnduct conceded, or, as is commonly said,
u admitted," the legal validity of the demand made against him naturally
arises. In criminal cases, the inference may be similar. For example,
should one accused of crime discuss the case with the prosecution lawyer
and confine himself to threats of violence making no claim of innocence, this
may well be considered a relevant circumstance to the effect that he is con-
scious of guilt, i. e., is giiilty. 16
Fqjilure to Allege Present Claim. The reverse is equally true. A defend-
ant may very properly attempt to show that a plaintiff who now claims a
Walser v. Wear, 141 Mo. 443, 42 S. \V. 928 55 X. W. 363 (1893): Moore v. Hamilton.
(1897); 2 Chamb., Ev., 1393. n. 5. Con- 48 Barb. (X. Y.) 120 (1865): 2 Chamb.. Ev..
tradictory statements in evidence given on a 1394, n. 2.
former trial may be used to impeach a pres- 11. Broschart v. Tuttle. 59 Conn 1. 21 Atl
ent witness. Wiseman v. St. Louis, etc., R. 925, 11 L. E. A. 33 (1890): Day v. Gregory.
Co., 30 Mo. App. 516 (1888): Me Andrews v. 60 111. App 34 (1894): 2 Chamb.. Ev.,
Santee, 57 Barb. (X. V) 193. 7 Abb Pr. (X. 1394. n. 3.
S.) 408 (1869). 12. Wise v. Adair, 50 Iowa 104 (1878):
Transfer of Property to avoid Liability. Peck v. Richmond. 2 E. D. Smith (X Y.) 380
Evidence that a defendant transferred his ( 1854) : 2 Chamb., Ev.. 1394. n 4.
property to his wife after an accident in 13. Campbell v. Missouri Par R. Co.. 86
which his motor vehicle was involved is com- Mo. App. 67 (1900) ; Grimes v. Keene. 52 X.
petent as bearing on the good faith of bis H 330 (1872) : 2 Chamb.. Ev.. 1394. n. 5.
defense that bis agent was not acting in the 14. Infra. 574 et sen.: 2 Chamb.. Ev.,
scope of his authority at the time of the acci- 1439 rt seq Slinserland v. Xorton. 12
dent. Chaufty v. De Vries. R. I. (1918) .V Y. Supp. 647. 58 Hun 578 (1891); 2
102 Atl. 012 Chamb.. Ev.. 1394. n. 6.
9. See Woolner v Hill. 47 X. Y Super. Ct 15. Mi-souri. etc.. K. Co. v Eulmore i Tex.
470 (1881) : Hayes v. Kelley. 116 Mass. 300 Civ. Apr.. 1895). 29 S. W. 688.
(1874): 2 Chamb.. Ev.. 1394. n. 1. 16. Tom. v. Coughlin. 182 Mass. 558, 66
10. Parsons v. Martin. 11 Gray (Mass.) Ill X. E 207 (1903).
(1858) ; Evans v. Montgomery, 95 Mich. 497,
559 ADMISSIONS: BY CONDUCT. 422
certain right has in the past done acts inconsistent with the actual existence
of such a right as is now set up. He has failed to assert his claim on occa-
sions when such a course would have been proper. 17 It may be shown that
he settled without trial litigation which involved the assertion of the same
right. 18 Where he claims that property possesses a certain value, it may be
proved that he has offered to sell it for less. 19 Where he advances a claim,
at the present time, that he is entitled to receive a certain sum of money on a
given account, it may be shown that on other occasions he has stated a smaller
amount as being that to which he was entitled. 20 On the other hand the
act of alleged inconsistency may be explained by the party against whom it is
offered. 21
Clear Relevancy Demanded. Where the act of one against whom a de-
mand is made may equally well have been done for other reasons than belief
in legal liability; as where it is without probative value on that issue; 22
or where the conduct in question is equally explainable as a mere matter of
business prudence, 23 a natural impulse of human kindliness, 24 or as proceed-
ing from a desire to avoid the annoyance of litigation 25 the act will be re-
jected. .
Conduct Consistent With Adversary's Claim. In general, any act of a
party may be shown by his opponent which is consistent with the latters
claim.* Thus, upon a question whether a certain relation exists, one party
may show that the other who now denies it has, by his conduct, recognized its
existence, 26 as by accepting benefits under it. In like manner, one who is
claimed to be entitled to a given office may, as against himself, be proved to
have exercised its powers. 27 For similar reasons where it is insisted by one
party that some one else has a right to an office, 28 to stand in a certain position
or is entitled to exercise the functions of a given calling 29 or profession 30
17. Williams v. Harter, 121 Cal. 47. 53 787 (1900); Anderson v Duckworth, 162
Pac. 405 (1898) ; Sears v. Kings County El Mass. 251, 38 N. E. 510 (1894) ; 2 Chamb.,
R. Co., 152 Mass. 151, 25 X. E. 98, 9 L. R. Ev., 1396, n. 2.
A. 117 (1890); Lloyd v. Lloyd, I Redf. Surr. 24. Sias v. Consolidated Lighting Co., 73
(N. Y.) 399 (1859) ; 2 Chamb., Ev., 1395, Vt. 35, 50 Atl 554 (1901).
n. 1. 25. Kelley v. Schupp, 60 Wis. 76, 18 N". W.
18. Pym v. Pym, 118 Wis. 662, 96 X. W. 725 (1884); Camp v. U. S., 113 U. S. 648,
429 (1903). 5 S. Ct. 687, 28 L. ed. 1081 (1885)
19. Springer v. Chicago, 135 111. 552, 26 26. Turrentine v. Grigsby, 118 Ala. 380,
N. E 514, 12 L. R. A. 609 (1891); Houston 23 So. 666 (1898); Bertha Mineral Co. v.
v. Western Washington R. Co., 204 Pa. 321, Merrill, 171 Mass. 167. 50 X. E. 534 (1898) ;
54 Atl. 166 (1903). 2 Chamb., Kv., 1397, n 1.
20. State v Berning, 74 Mo 87 (1881): 27. T row-bridge v. Baker. 1 Cow. (N. Y.)
Shiland v. Loeb, 69 N Y Supp. II. 58 4pp 251 (1823).
Div. 365 (1901) ; 2 Chamb., Ev.. 1395, n 4 28. Dickinson v. Coward, 1 B. & Aid. 677
21. Moore v Dunn. 42 X. H. 471 /1861) : (1818).
Chamberlain v. Iba, 181 N. Y. 486, 74 X. E. 29. Rex v Borrett, 6 C. & P. 124, 25 E. C.
481 (1905). L. 353 (1883).
22. Talcott v. Harris. 93 X. Y. 567 (1883) 30. 2 Serg. & R. (Pa.) 440 (1816).
23. Amour v. Ross, 110 Ga. 403, 35 S. E.
423 INCONSISTENCY. 559
one may show that his antagonist has, in his own conduct, recognized and
assented to the truth of the assertion. In general, the character in which the
plaintiff sues, or in which the defendant is sued, may be admitted by the
conduct of the opposite party. 31
Bodily Condition. A litigant may show that his opponent or other per-
sons are sick by evidence that they received sick benefits. 32 In general, each
litigant may prove in either a civil 33 or criminal 34 action any conduct on
the part of his adversary which corroborates the contention of him who offers
the evidence.
Mental State. Psychological facts may also be shown by acts of con-
sistent conduct For example, either litigant may prove that his opponent
had at any given time a relevant mental state, suclr as intent, 35 intention,
knowledge, 30 the influence of a particular motive, 37 or other relevant state
of consciousness. 38 This he may do by showing that his opponent acted as
one naturally would who was affected by the existence of such a mental state.
Efforts at Settlement. Any conduct of accused in a criminal case showing
h;s consciousness of guilt or his doubt in the merits of his defense, such as
an attempt on his part to compound a felony or to arrange terms for a settle-
ment with the injured person, 39 is admissible in evidence.
Suppressing Prosecution. Any effort to suppress the prosecution, by tam-
pering with its witnesses, and the like, will be deemed significant of con-
sciousness of guilt. 40 So arranging the facts as to lead to false inferences, 41
fabricating evidence, or in any way perverting the course of justice stand in
the same position.
Flight. Prominent among relevant acts of the accused showing a con-
31. Stanford v. Hurlstone, L. R 9 Ch. 116 Minn. 487, 43 X. \V. 375 (1889); 2 Chamb.,
(1873) ; 2 Chamb., Ev., 1397, n. 6. Ev., 1399, n 2.
32. Seidenspinner v. Metropolitan L. Ins. 37. Sanscrainte v. Torongo, 87 Mich. 69,
Co., 175 N. Y. 95, 67 X. E. 123 (1903). 49 N. \V. 497 (1891); Fulmer v. Williams,
33. Chicago, etc., R. Co. v. Eaton, 194 111. 122 Pa. 191, 15 Atl. 726, 9 Am. St. Rep. 88,
441, 62 X. E. 784, 88 Am. St. Rep. 161 1 L. R. A. 603 (1888); 2 Chamb., Ev..
(1902); Manning v. Lowell, 173 Mass. 100, 1399, n. 3.
53 X. E. 160 (1899); Swee v. Xeumann, 123 38. Hackett v. King, 8 Allen Mass. 144,
X. Y. Supp. 776. 67 Misc. 605 (1910); 2 85 Am. Dec 695 (1864): Sheldon v Sheldon,
Chamb., Ev, 1398. n. 2. 32 X. Y. Supp. 419, 84 Hun 422 (1895) ; 2
34. Greenfield v. People, 85 X. Y. 75, 39 Lhamb., Ev., 1399, n. 4.
Am. Rep. 636 (1881): State v. Greene, 33 39. State v Farr, 29 R. I. 72, 69 Atl. 5
Utah 497, 94 Pac. 987 (1908) : 2 Chamb , Ev., (1908) : Booth v. State (Tex. Cr. App. 1908),
1398, n 3. 108 s - w - 68 " : - Chamb.. Ev.. 1399, n. 6.
35. Starks v. Sikes. 8 Gray (Mass.) 609. 40. Booth v. State, supra. The act of spoli-
69 Am. Dec. 270 (1857): \Vohlfarth v. ation must in some way be connected with
Chamberlain. 14 Daly iX. Y.) 17S. 6 X. Y the party. People v. Long. 144 Mich. 585,
St. Rep. 207 (1887)': Emery v. Irving Xat. 108 X. W 91 (1906) : 2 Chamb. Ev.. 1399,
Bank. 25 Ohio St. 360, 18 Am. Rep 299 n. 7.
(1874) -, 2 Chamb.. Ev., 1399, n. 1. 41. Barnes v. State (Tex. Cr. App. 1908),
36. Miller v. Cook, 124 Ind 101. 24 X. E 111 S. \Y. 943. See, however, Sanders v.
577 (1890) : Smith v. Duncan. 1S1 Mas*. 435. State, 148 Ala. 603, 41 So. 466 (1906).
63 X*. E. 938 (1902); Potter v. Mellen, 41
559 ADMISSIONS: BY CONDUCT. 424
sciousness of guilt is flight. 42 Where the prosecution can show in a criminal
case 43 that the accused has become a fugitive from justice, 44 such a fact
urgently calls for explanation from the defendant. Where one charged with
crime, without good ground, departs from the jurisdiction 45 shortly after the
commission of the crime with which he is charged, the circumstance may
often be highly significant. The law of early times made flight conclusive
evidence of guilt. 46 Under the more rational system of later times, the fact
of flight is merely a circumstance tending to establish consciousness of guilt. 47
Explanation Received. It is settled that the defendant may offer any
relevant explanation of his act. 48 The accused may, for example, allege, in
explanation of his flight, that he was apprehensive of personal violence. 49
The advice of friends may be assigned as the cause of fleeing from the juris-
diction. 50 In all cases, the accused is entitled to prove by his own testimony
the actual motive which has influenced his conduct. 01 An absence due to in-
sanity obviously gives rise to no inference of guilt. 52
An attempt to escape stands in the same position as would an escape itself. 53
Not unnaturally, moreover, the possession of tools calculated to assist an at-
tempt at escape is regarded as a probative fact in such a connection. 54 Ef-
forts to bribe a custodian of the jail in order to facilitate flight give rise to a
similar inference, i. e., consciousness of guilt. 55 Xorie of these incriminating
circumstances constitute a prima facie case of liability to the consequences of
crime." Standing alone, therefore, they will not warrant a conviction. 57
Actor Alone Affected. Naturally, flight or an attempt to flee affects only
the actor, the person so conducting himself. 58
. Declining to Flee, Voluntary Return, Etc. While flight is competent
42. 2 Chamb., Ev., 1399a, n. 1. 50. State v. Phillips, 24 Mo. 475 (1857).
43. In a civil case, flight is probably not 51. Webb v. Com., 4 Ky L. Rep 436
evidence of liability. This rule is not af- ( 1882 ) : Lewallen v. State, 33 Tex. Cr. Rep.
fected by the circumstance that, as in case 412, 20 S. \V. 832 (1804); 2 Chamb., Ev.,
of seduction, a criminal remedy may exist for 1399a, n. 11.
the offense. See Wise v. Schlosser, 111 Iowa 52. Peacock v. State, 50 X. J. L. 653, 14
16 (1900); 2 Chamb., Ev., 139!)a. n. 2. All. 893 (1888i
44. In re Voorhees, 32 N. J L. 150 (1867 K 53. Campbell v. State. 23 Ala. 44 (1853) ;
45. United States v. O'Brian, 3 Dill. C. C. State v. Jackson, 95 Mo. 623 (1888).
(U S.) 381 (1874). 54. Clark v Com. ( Ky. 1895), 38 S. W.
46. Chamb., Ev., 1399a, ns. 5, 6. 131 ; State v Duncan, 1 Ifi Mo. 288. 22 S. W.
47. People v. Sheldon, 68 Cal. 434, 9 Pac 699 (1893).
457 (1886) : Com. v. Brigham, 147 Mass. 414. 55. McKea v. State. 71 Ga. 96 (1883);
18 X. E. 167 11888); State v. Howell, 117 Dean v. Com., 4 Gratt. (Ya.) 541 (1847)
Mo. 307, 23 S. W. 263 (1893) : People v. Me- 56. \\ayl.Tiuht v. State. 5<> I ml. 122 H877) :
Keon, 19 X Y. Supp. 486, 64 Hun 504 State v. Ah Kung. 17 Xev. 361. 30 Pao. 99.-)
(1892) ; 2 Chamb., Ev., 1399a, n. 7. (1883) : 2 Chamb.. Ev.. 13!)<a. n. Ifi.
48. Sewell v. State, 76 Ga. 836 (1888): 57. Webb v Com., suprn.
People v. Cleveland, 107 Mich. 3(57, 65 X. W. 58. People v. Stanley. 47 Cal. 113 (1874) :
216 (1895i : 2 Chamb., Ev., 1399a, n. S. People v. Sharp. 107 X. Y 427, 14 X E. 319.
49. State v McDevitt. 69 Iowa 549. 29 X. 1 Am. St. Rep. 581 (1887); 2 Chamb., Ev.,
W. 459 (1886) ; State v. Rarham. 82 Mo. 67 1399a, n. 18.
( 1884 ) ; 2 Chamb. , Ev., 1399a, n. 9.
425 SILENCE. 560, 561
evidence, as grounding an inference that the accused knew he was guilty,
declining to flee when urged is, at most, a self-serving act, without probative
force. 59 Any other rule of administration, indeed, would flood the courts
with fabricated testimony. 60 For the same reasons, one accused of crime
cannot show that, having fled, he afterwards voluntarily returned. 61
Order of Acts. The act claimed as consistent with the proponent's claim
may precede the fact to which it is relevant, 1 '' 2 or nuiy follow iii point of time
the res yebiae of the particular case, as where a master discharges a servant
alleged to have been negligent,''' 3 or pays money into court. 64
560. [Admissions by Conduct] ; Silence. 65 Should a party to a litigation
deny the truth of a statement made to him no reason exists for introducing
the fact in evidence, as an admission that the statement was true. 66 On the
contrary, should he fail to deny the truth of the statement made to him. or in
his presence, it has been thought that under cover of the maxim that " silence
gives consent " 6 " some rule of evidence renders admissible as against the
party all which was said in his presence and not categorically or in substance
denied by him. 68 The dangers of such a rule are obvious. !Xo rights of a
party whom anyone saw fit to address concerning them would be safe under
such a state of the law. 69 Silence may be probatively relevant by giving rise
to other inferences than that of acquiescence. For example, failure to answer
a pertinent question may be significant to the effect that the person addressed
knows of no way in which it can be truthfully or even plausibly answered to
his advantage. 70
561. [Admissions by Conduct]; Failure to Object to Written Statements. 71
- Failure to object to the written statement of a party may be explained by
so many causes not applicable to silence when the parties are in personal con-
versation that all such evidence is of a lighter character than when the same
facts are orallv stated to the party, even where other circumstances continue
to be the same. 72 Fnder many states of fact it is doubtful whether failure
59. State v. Cicely, 13 Smedes & M. (Miss.) n. 1. Reiteration of Denial. A denial is not
208 (1849). so f ar conclusive as to remove, of necessity,
60. People v. Rathbun, 21 ^Yend. (X. Y.) probative effect from a subsequent failure to
509 520 (1S39). deny. Jewett v. Banning, 21 N. \. 27
61. People v. Cleveland. 107 Mich. 367 (I860).
iisn.j). 67. Bailey v. Bailey, 139 Mo. App. 176, 122
62. Chicago, etc., Ry. Co. v. Eaton, 194 111. S. W. 1099 (19091.
441. 62 X E. 784, 88 Am. St. Rep. 161 68. Mattocks v. Lyman, 16 Vt. 113 (1844).
(1002). 6 9 Moore v. Smith, 14 Serg. & R. (Pa.)
63. Martin v. Towle. 59 X. H. 31 (1879). 388 (1826) : Mattocks v. Lyman, supra.
64. Lucy v. Walrond, 3 Bing. X. C. 841, 70. Jackson- v. State, 167 Ala. 77, 52 So
6 L. J. C. P. 290 fl'837). 730 (1910).
65. 2 Chamberlayne. Evidence, 1401. 71. 2 Chamberlayne, Evidence, 1402-
66. People v. Morton, 139 Cal. 719, 73 Pac. 1406.
609 (1903) ; Low v. State. 108 Tenn. 127, 65 72. Fenno v. Weston, 31 Vt. 345 (1858) ; 2
S. W. 401 (1901) ; 2 Chamb., Ev., 1401. Chamb., Ev., 1402, ns. 1, 2, 3, 4.
561 ADMISSIONS: BY CONDUCT. 426
/
to deny a written statement can fairly be said to have any probative value
whatever. 73
Oblif/alion of Good Faith. In order that any inference should properly be
drawn against a party from failure to reply to written statements brought to
his notice it must affirmatively appear not only (a) that he received the
writing in question, 74 and understood its meaning; but also (b) that
some moral or legal obligation thereupon became imposed upon the person in
question to take at once a definite attitude on the subject and not permit the
writer of the statement to continue to assume it to be true, unless, in fact, it
be true. 75
Effect of Denials. One to whose attention statements in a writing are
brought is not required to reiterate a previous denial. 76 Nor can one who
has denied all liability reasonably be required to furnish, in addition, a specific
denial of each separate item. 77
Conditions of Admissibility ; Party Must Understand the Statement.
Where it is affirmatively made to appear to the court, by access to, 78 posses-
sion 7!t or use of them, 80 that the party had full opportunities of becoming
acquainted with papers and documents, it will be assumed, in the absence of
evidence to the contrary, that he was acquainted with their contents. So far,
therefore, at least, as they affect himself it will be reasonably assumed that
he knew them. Such knowledge does not, in itself, imply assent to the truth
of the proposition stated in the document. 81 It merely makes the conduct of
the party significant; for without such knowledge it can have no force in
establishing acquiescence.
Party Must be Under a Definite Duty to Declare the Truth. Where one
is under no obligation, moral or legal, to declare his position in a given matter,
his silence is meaningless. Still, showing that a party has read a newspaper
article 82 or accepted a bill of costs as taxed 83 without objection to any
statement found in such documents furnishes some evidence of assent to the
truth of the assertions made in them. Where, however, it is known that the
party addressed has already taken a final position in the matter, 84 and there-
73. 2 Chamb., Ev., 1402. People v. Colburn, 105 Cal. 648, 38 Pac. 1105
74. Greenburg v. S. D. Childs & Co.. 242 (1895).
111. 110, 89 N. E. 679 (1909). 80. Prout v. Chisholm, 47 N. Y. Supp. 376,
75. Lucy v. Mouflet, 5 H. & N. 220, 29 L. 21 App. Div. 54 (1897) : Ryder v. Jacobs, 196
J. Ex. 110 1 1860) ; 2 Chamb.. Ev., 1403, n.2. Pa. 386, 46 Atl. 667 (1900) ; 2 Chamb., Ev.,
76. Churchill v. Fulliam, 8 Iowa 45 (1859) ; 1405, n. 3.
Cheney v. Cheney, 162 Mass. 591 (1895): 2 81. Com. v. Eastman, 1 Cush. (Mass.) 189,
Chamb., Ev., 1404, n. 1. 215 (1848); Starkweather v. Converse, 17
77. Hinton v. Coleman, 45 Wis. 165 (1878): Wend. (N. Y.) 20 (1837): 2 Chamb., Ev.,
Watson v. Travelers' Tns. Co., 43 Wash. 396, 1405, n. 4.
86 Pac. 659 (1906). 82. People v. Smith, 172 N. Y. 210, 64 N.
78. Cheney v. Cheney, supra. E. 814 (1902).
79. Wilshusen v. Binns, 45 N. Y. Supp. 83. Hamilton v. Gray, 67 Vt. 233, 31 Atl.
1085, 19 Misc. 547 (1897) : Oeorjre A Fuller 315 (1894).
Co. v. Doyle, 87 Fed. 687 (1898). CONTRA:
427 WEIGHT. 562
fore, the sender of the letter carmot be misled by failure to reply, or derive
advantage from further repetition of familiar statements, no obligation to
speak exists. The presence of unsettled matters tends to increase the urgency
for the exercise of good faith. For example, that there is a pending cor-
respondence assists to create a duty to reply to statements deemed erroneous. 85
So. where one in receipt of a letter sees n't to answer it in part, he must answer
fulJy, if he desires to avoid the inference that he acquiesces in any statements
which he does not deny. 8 " Iti case of documents other than letters, the party
in order to be atfected must either have been under some legal or m,oral obliga-
tion to speak, or should have, in part at least, undertaken to do so. 87 Other-
wise, failure to give a claim any attention is without probative effect upon
the situation. 88
562. [Admissions by Conduct] ; Probative Force. 89 The inference of assent
may arise equally from other facts, e. g., long retention without objection,
and then only when there is a duty which would impel to dissent in view of
the nature of the statements if they were false. If the party's conduct taken
in connection with these statements, either in the way of a reply, 90 failure
to answer 91 or other conduct, 92 tends to show concurrence in the truth of a
relevant written statement, 93 evidence of such conduct is competent.
Active Adoption. The rule under consideration is limited to cases of
inference from silence. It does not extend to positive acts in adoption of
the statements of a letter, as where the party acquainted with the contents
assists in its mailing, 94 or letter press copies of them are found in his pos-
session. 95 Such conduct may prove a written admission or constitute one
by active rather than passive adoption.
Effect of Partial A-nsivers. Increased weight 96 and even a prima facie
quality, 97 attaches to failure to object to a given assertion, if the truth of
84. Learned v. Tillotson, 97 N. Y. 1, 49 91. Gaskill v. Skene, 14 Q. B 664, 68 E. C.
Am. Rep 508 (1884); Dempsey v. Dobson, i.. 664 (1850).
174 Pa. 122, 34 Atl. 459, 52 Am. St. Rep. 92. Keith v. Electrical Engineering Co., 136
516, 32 L. R. A. 761 (1806): 2 Chamb., Ev., Cal. 178, 68 Pac. 598 (1902): Hulett v.
1406, n. 4. ^arey, 66 Minn. 327, 69 N. W 31, 61 Am.
85. Fenno v. Weston, supra. St. Rep. 419, 34 L. R. A. 384 (1896); 2
86. Com. v. Eastman, supra; Tilton v. Chamb., Ev., 1407, n. 3.
Beecher, 59 N. Y. 176 (1875) ; Fenno v. Wes- 93. Reg. v. Hare, 3 Cox C. C. 247 (1848).
ton, supra 94- Hulett v. Carey, supra; 2 Chamb., Ev.,
87. Burns v. Campbell, 71 Ala. 271 (1882). 1408, n. 1.
88. Sullivan v. Louisville, etc., R. Co., 128 95. Com. v. Jeffries, 7 Allen (Mass.) 548
.ila. 77, 30 So. 528 (1900); Robinson v. (1863).
Fitehburg, etc, R. Co., 7 Gray (Mass.) 92 96. Burns v. Campbell, supra: Tarns v.
(1856). Lewis. 42 Pa. 402 (1862): 2 Chamb., Ev.,
89. 2 Chamberlayne, Evidence. 1407- 1409, n. 1.
1410. 97. Prout v. Chisolm, supra; Wiggina v.
90. Trischet v. Hamilton Mut. Ins. Co., 14 Burkham, 10 Wall. (U. S.) 129, 19 L. ed.
Gray (Mass.) 456 (1860); 2 Chamb., Ev., 884 (1869).
1407, n. 1.
563 ADMISSIONS: BY CONDUCT. 428
other assertions in the same \vriting is disputed, while the declaration in
question i.s accepted without demur. By any recognition of the correctness
<jf the statements contained in a letter," 8 as by accepting benefits conferred on
him by its terms"" or retaining, without demur, money sent under certain
conditions, 1 the litigant may furnish corroborative evidence of his acquies-
cence in the correctness of its statements.
Inference Rebutiable. The inference of acquiescence from failure to deny
a written statement is by no means of conclusive force. Such silence is merely
one circumstance, to be weighed with others, bearing upon the truth of the
statement itself. 2
563. [Admissions by Conduct]; Scope of Inference; Book Entries. 3 Asser-
tions of relevant facts contained in ordinary accounts current, 4 or book entries,
whether kept by clubs, 3 corporations, 6 firms 7 or individuals s may be shown,
together with the conduct of a party to be affected by such statements. Fail-
ure to object to the truth of these may reasonably be deemed relevant on the
issue of acquiescence."
Convntrt'cial }\'ritinyt>. The same rule applies to statements made in other
mercantile papers, commonly employed iu business dealings. 10 Such declara-
tions may, in connection with a party's failure, for a considerable time, to
object to them. 11 be significant, even to the extent of suggesting the inference
that the party knew them to be true.
.Legal Document*. The same observations apply to statements in any
usual legal documents. 12 Notice to a tenant requiring him to quit and de-
98. Murray v East End Imp. Co., 22 Ky. L be furnished. Rudd v. Robinson, 126 X. V.
Kep 1477, 60 S. VV. G48 (1001); 2 Chamb., 113, 26 X. E. 1046 (1891); 2 Chamb., Ev.,
Ev., 1405), n. 3 1411, n. 4. See as to other views, 2 Chamb.,
99. St. .Toseph Hydraulic Co. v. (Jlobe Tis- Ev., 1411, n. 4
sue Paper Co., 15(5 Ind. 165, 50 X. E. 995 7. Kohler v. Lindenmeyr, 129 X. V. 498, 29
(I'.MU): Sturtevant v. Wallack, 141 Mass. \. E. 957 (1892); Chick v. Robinson, 37 C.
119, 4 X. E. 015 (1886). C. A. 205, 95 Fed. 619 (1899).
1. Id. 8. Cheney v. Cheney, supra; Raub v. Xis-
2. Waring v. U S. Telegraph Co., 4 Daly bett, 118 Mich. 248, 76 X. W. 393 (1898);
(X Y.) 233, 44 How. Pr. 69 (1S72); Hill Tanner v. Parshall, 3 Keyes (X Y.) 431, 4
v Pratt, 29 Vt. 119 (1856); 2 Chamb, Ev., Abb. Dec 356, 35 How. Pr. 472 (1867); i
1410, n 1. Chamb., Ev., 1411. n. 6.
*3. 2 Chamberlayne, Evidence, 1411- 9. Safe Deposit & Trust Co. v. Turner, OS
1415. Md. 22, 55 Atl 1023 (1003).
4. House v, Beak, 43 111. App. 615 (1801) -. 10. Traders' Xat. Bank v. Rogers. 167 Mass.
Fisk Pavement, etc., Co v Evans. 60 X. 315. 45 X. E. 023, 57 Am. St. Rep. 45S. 36
Y 640 (1875) ; Jones v. De Muth. 137 Wis>. L. R. A. 530 (1807) : Del Piano v. Caponigri.
120, 118 X. W. 542 (1008); 2 Chamb., Ev., 40 X. Y. Supp. 452. 20 Misc. 541 (1807); 2
1411, n. 2. Chamb. Ev.. 1412. n. 1.
5. Raggett v. Musgrave, 2 C. & P. 556, 12 11. Weigle v. Brautigam, 74 111. App. 2S.~>
E. C. L. 730 (1827K (1807) ; Pabst Beer Co. v Lueders. 107 Mich
6. Anderson v. Mutual Reserve Fund L. 41, 64 X. W. 872 (1805): Murray v Toland.
Assoc, 171 111 40. 40 X. E 205 (1898):. 3 Johns. Ch. (X. Y.) 569 (1818); 2 Chamh.,
Allen v Coit. 6 Hill (X. Y) 318 (1S44). Ev.. 1412. n. 2.
Some implication of actual knowledge muat 12. Patrick v. Crowe, 15 Colo 543, 25 Pac.
429 SCOPE. 563
liver up possession of certain premises ln is a common instance of the em-
ployment of this rule. Even less formal writings l4 stand in the same posi-
tion. The rule applies, with especial stringency, to " proofs of loss " ren-
dered under a contract of insurance. 15
Letters. Failure to object to statements in a letter does not, as a rule,
admit their truth. 10 Xo obligation exists, under ordinary circumstances, to
reply to any self-serving declarations which another sees tit to send to him in
this form. 17 One who is injured is under no obligation to complain of the
damage done to him under penalty of losing, by silence, a right to redress. 18
Evidence Admitted. There are however, important exceptions to this
rule, 19 circumstances under which failure to reply to written statements tends
to show acquiescence in their truth. 20 Whenever good faith requires that
the receiver of a letter should declare his position frankly in order that
the person sending the original letter may not be misled, 21 his retaining the
letter without objection is a significant fact. This may happen when he is
aware that the sender is about to act upon the assumption that he is correct
in his own statement. 22 Under such circumstances failure to deny will be
deemed evidence of acquiescence in the truth of the facts asserted.
Criminal Cases. For similar reasons, in a criminal case, the letters sent
to defendant by the prosecuting witness, or other person are inadmissible as
admissions by conduct of the former by mere reason of the fact that he makes
no reply to the statements therein contained. 23 Xo inference of acquiescence
by silence could possibly arise unless and until it be shown that the accused
actually received the letter. 24 Even should he have received it. no inference
985 (1890); Schrowang v. Sahler, 2 X. Y. 08 X. E. 954 (1903); Com. v. Edgerly. 10
Supp. 140 (1888). Memorandum of sale, see Allen (Mass.) 184 (1865); Gray v Kauf
.Friedman v. Enders, 116 X. Y. Supp. 461 man. D. & I. C. Co.. 162 N. Y. 388, 397, 56
(1900). N". E. 903 (1900) : 2 Chamli., Ev.. 1414, n. 2.
13. .St. Louis Consol. Coal Co. v. Schaefer, 18. Starkweather v Converse, 17 Wend.
31 111. App. 364 (1889). (X. Y) 20 ilS37).
14. Grier v. Deputy, 1 Marv. (Del.) 19, 40 19. Richards v. Gellatly. L. R. 7 < '. P. 127
Atl. 716 (1S04). (1872).
15. When the insurer submits, as required 20. Meach v. Travelers' Ins Co., 73 Conn,
by the contract, proofs of loss, any unneces- 118. 46 Atl. 867 (1900): Murray v. East
sarv retention of them by the insurer without End Imp. Co., supra : Whitaker v. White. 23
objection, will be deemed an acquiescence in X. Y. Supp. 487. 69 Hun 258 (1893); 2
the truth of the statements made in them. Chamb.. Ev.. 1414. n. 5
especially if the time during which new 21. Thomas v. Gage. 141 X. Y. 506, 36
proofs may be filed has elapsed. 2 Chamb., X. E 3S5 (1894): Janin v. Cheney. 60 X.
Ev.. 1413. n 4. V. Supp. 645, 44 App. Div. 110 (1899i.
16. Ra/or v. Razor, 149 Til. 621. 36 X. E. 22. Dutton v Woodman. '.) Cixh (Mass.)
fl63 (1804); Fearing v Kimball. 4 Allen 257 ( 1852) : Hill v Pratt. 29 Yt 1 19 ( 1856) .
(Mass ) 125. 81 Am Dec. 690 (1862) : Haas. 23. People v. Colburn. 105 Cal. 64* (1894) ;
Schachter & Kas v. Honwit. Teller & Co.. People v Fit/gerald. 156 X Y. 253. 50 X
119 X. Y. Supp. 202 (1909): Thomas v. E. 846 (1898): 2 Chamb.. Ev . 1414. n. 9.
Gaae. 141 X. Y 50fi. 36 X. E. 385 (1894) : 24. Com. v Edgerly. supra; Payne v. Com.,
2 Chamb. Ev.. 1414. n 1 31 Gratt. (Va.) 85s'(1878).
17. Chicago v. McKechney, 205 111. 372,
564-566 ADMISSIONS: BY CONDUCT. 430
of acquiescence from silence naturally arises. 25 Should the accused have re-
plied to the letter or otherwise acted upon it the reply or other conduct may
be shown in evidence and so much of the letter as tends to give probative
point to the evidence so introduced. 26 A fortiori, the accused himself is not
permitted to introduce as evidence in his own behalf, favorable letters sent to
him by persons not connected with the res gestae.' 2 ' 1
564. [Admissions by Conduct] ; Independent Relevancy. 28 It is advisable
that the effect of the written statement which is not denied by a party under
circumstances which render his conduct significant on the issue of acquiescence
should be distinguished from declarations which are received in evidence be-
cause they are independently relevant. The writing in the latter case is not
offered as evidence of facts stated by it; its probative force lies rather in the
results directly accomplished by it, by reason of its bare existence. 29 It gives
notice, 30 constitutes a demand, 31 affords knowledge, 32 creates an identifica-
tion 3:{ or the like. 34
565. [Admissions by Conduct] ; Falsehood. 35 Prominent among admissions
by conduct is the making of false statements by the accused regarding im-
portant matters involved in the inquiry. The inference is the same as that
which arises in other cases of fabrication or spoliation, 36 i. e., the accused
knows that he will be shown to be guilty in a criminal proceeding or un-
successful in a civil one were the facts fully known. The government, there-
fore, is at liberty to show the most self-serving explanations or other state-
ments of the accused with a view to proving the fact that they are false 37
and that the accused must have known it.
566. [Admissions by Conduct] ; Silence as Proof of Acquiescence. 38 Failure
to deny a statement made in one's presence under surroundings which
prompt to speech if the statement were false, is some evidence of acquiescence
i
25. People v. Green, 1 Park. Cr. (N. Y.) 11 33. R. v. Phimer, R. & R. 264 (1814).
(1845), 34. Dutton v. Woodman, supra; Hullett v.
26. People v. Colburn, supra ; State v. Stair, Carey, supra.
87 Mo. 268, 56 Am. Rep. 449 (1885). 35. 2 Chamberlayne, Evidence, 1417.
27. State v Crowder, 41 Kan. 101, 21 Pac. 36. Supra, 430 et seq.; 2 Chamb., Ev.,
208 (1889). 1070 et seq.
28. 2 Chamberlayne, Evidence, 1416. 37. People v. Scalamiero, 143 Cal. 343. 76
29. Sturtevant v. Wallack, 141 Mass. 119, Pac. 1098 (1904) ; Com v. Goodwin, J4 Gray
4 N. E. 615 (1886). (Mass.) 55 (1859); People v. Wilkinson, 14
30. Com. v. Jeffries, 7 Allen (Mass.) 548,83 N. Y. Supp. 827 (lh;il): 2 Chamb., Ev.,
Am. Dec. 712 (1863): Allen v. Peters, 4 1417, n. 2.
Phila. (Pa.) 78 (I860). 38. 2 Chamberlayne, Evidence, 1418-
31. Hand v. Howell, 61 N. J. L. 142, 38 1422. Admissions by failing to contradict.
Atl. 748 (1897); Hill v Pratt, 29 Vt. 119 See note, Bender Ed., 162 N. Y. 399. Failure
(1856). to deny statements as an admission. See
32. Infra, S50; 4 Chamb., Ev , 2666; note, Bender Ed., 92 N. Y. 29.
Came v. Steer, 5 H. & N. 628 (1860).
431 SILENCE. 566
in the truth of the assertion. 39 Regarded, therefore, as evidenc of acquies-
cence in 4fl or adoption of a statement made in the presence of a party 41 or
even as a relevant circumstance, his total 42 or partial 4S silence and failure
to denv the truth of the statement made in his presence is probative in pro-
portion to the strength of the impulse to speak which is thus controlled. 44
It follows that it is not the fact of silence which is probative. It is the fact
of silence under certain circumstances. Standing alone, the statement made
in the party's presence is without logical bearing as to the existence of the
fact asserted ; only in connection with some evidence of significant conduct 45
on the part of the listener does the statement itself become entitled to evi-
dentiary weight. 46
Civil Cases. The inference of acquiescence from silence may arise in
civil eases. 47 Reading a statement to a party may, in connection with his
non-denial be sufficient to show acquiescence in its assertions. 48 In any case,
it must be made affirmatively to appear that the party in question understood
the force and effect of what was said to him, and that he was, in view of the
circumstances, under the duty or probably influenced by some impulse to
speak, if this well could have been done. 49 Relevant statements made in an
agent's presence and not denied by him, may be competent facts. 50 But nar-
rating a past occurrence in the presence of an agent who is not called upon
to act upon the information furnished, may be entirely immaterial. 51 Muni-
cipal agents stand in the same position. 52 Self-serving statements, where not,
39. State v. Quirk, 101 Minn. 334, 112 N. (1895) -. Gibney v. Marchay, supra, 2 Chamb.,
. 409 (1907) ; Bass v. Tolbert (Tex. Civ. Ev., 1418, n. 6.
App. 1908), 112 S. W. 1077: Vail v. Strong. 45. People v. Mallon, 103 Cal. 513, 37 Pac.
10 Vt. 457 (1838); 2 Chamb., Ev., 1418, 512 (1894); Gibney v. Marchay, supra ; Com.
n. l. v. Trefethen, 157 Mass. 180 (1892) ; 2 Chamb.,
40. Holston v. Southern R. Co., 116 Ga. Ev., 1418, n. 7.
656, 43 S. E. 29 (1902) ; Proctor v. Old Col- 46. People v. Mallon, supra; Senn v. South-
ony R. Co., 154 Mass. 251, 28 X. E. 13 ern R. Co.. 108 Mo. 142, 18 S. W. 1007
(1891); Lathrop v. Bramhall, 3 Hun (X. (1891). Functions of judge and jury, see
Y.) 394 (1875) ; 2 Chamb., Ev., 1418, n. 2. 2 Chamb., Ev., 1418, n. 8.
41. Silence of an agent may bind the prin- 47. Kozlowski v. City of Chicago, 113 111.
cipal. Gault v. Sickles, 85 Iowa 260, 52 X, App. 513 (1904); Proctor v. Old Colony R.
E. 206 (1892) ; Stecher Lithographic Co. v. Co., supra; Cable v. Bowlus, 21 Ohio Cir. Ct.
Inman, 175 N. Y. 124, 67 X. E. 213 (1903) ; 53, 11 Ohio Cir. Dec. 526 (1900) ; 2 Chamb.,
2 Chamb., Ev., 1418, n. 3. Ev., 1419, n. 1.
42. Gibney v. Marchay, 34 X. Y. 301 48. Huggins v. Southern Ry. Co., 148 Ala.
(1866i : Webb v. Atkinson, 124 X. C. 447, 32 153, 41 So. 856 (1906) : People v. Rollins, 14
S. E. 737 (1899); 2 Chamb.. Ev., 1418, n. Cal. App. 134, 111 Pac. 123 (1910).
4. See. however, Merri weather v. Com., 26 49. Parulo v. Philadelphia & R. Ry. Co. (U.
Ky. L. Rep. 793, 82 S. W. 592 (1904). S. C. C., X. Y. 1906), 145 Fed. 664.
43. People v. Swaile, 12 Cal. App. 192, 107 50. Linderberg v. Crescent Min. Co.. 9 Utah
Pac. 134 (1909); Rowe v. Bregen/.er. 161 163, 33 Pac. 692 (1893).
Mich. 684, 126 X. W. 706 (1910) ; 2 Chamb., 51. St. Louis, etc., R. Co. v. Weakly, 50
Ev., 1418, n. 5. Ark. 397, 8 S. W. 134 (1887).
44. Proctor v. Old Colony R. Co., supra; 52. Maher v. Chicago, 38 111. 266 (1865).
Peck v. Ryan, 110 Ala. 336, 17 So. 733
567 ADMISSIONS: BY CONDUCT. 432
as a rule, admissible in favor of the declarant, 53 may be received if made in
the presence of the opposite party and not denied by him. 54
Criminal Prosecution. The same inference of acquiescence from silence
may be made in the case of one accused or suspected of crime. 55 It may be
employed to establish the existence even of the corpus delicti itself, 06 the
connection of the person in question with it, or regarding the existence of any
other material fact. 57 Alleged admissions by accused from his failure to
deny incriminating statements made in his presence are, it is said, subject
to the same rules as applied to confessions. 58 It is not a consideration of
any importance that the person who makes a relevant assertion in the presence
of a criminal defendant would himself be incompetent to testify as a witness
on the point to the same effect. 59
Self-serving Statements. The declarant is not entitled to use his self-serv-
ing statements 60 except so far as fairly necessary to qualify the effect of the
concatenated facts, the statement and his conduct in respect to it, used against
him." 1 A denial by the defendant of liability for an offense makes the charge
in his presence irrelevant. 02 Should the accused, however, answer in part,
his reply will be considered by the jury as a whole. 03
Inference of Acquiescence Rebuttable. In the absence of facts grounding
an estoppel 64 the failure to deny may be controlled in its effect by other
evidence. 65 Non-denial is merely one fact among others be'aring on the
question. It is not conclusive in its nature. 60
567. [Admissions by Conduct] ; Conditions of Admissibility. There are four
conditions of adrnissibility required: (a) The party must be shown to have
understood the statement, (b) It must appear that it would have been
natural to have denied the statement if it had been false, (c) The person
addressed must possess at the time adequate knowledge on the subject covered
by the statement, (d) He must have been physically and mentally able to
53. Infra, 857 et seq.; 4 Chamb., Ev., Richards v. State, 82 'Wis. 172, 51 X. \V. 652
2698 et seq. (1892).
54. Wonsetlor v. Wonsetler, 23 Pa. Super. 60. Williams v. Mower, 2!) S. C. 332, 7 S.
Ct. 321 (1903). E. 505 (1888).
55. People v. Swaile, supra; Conway v. 61. Davidson v. State, 135 Ind. 254, 34 X.
State, 118 Ind. 482, 21 X. E. 285 (1888): E. 972 (1893); Clement v. Drybread, 108
Com. v. O'Brien, 179 Mass. 533, 61 X. E. Towa 701. 78 X. W. 235 (-ISO!)) : 2 Chamb.,
213 (1901); People v. McCue, 178 N. Y. Kv.. 1421, n. 2.
579, 70 X. E. 1104 (1904) ; 2 Chamb., Ev., 62. Low v. State, 108 Tenn. 127, 65 S. W.
1420, n. 1. 401 (1901).
56. The contrary view has been main- 63. Com. v. Robinson, 165 Mass. 426, 43 X.
tained. People v. Rowland, 12 Cal. App. 6, E. 121 (1S95).
106 Pac. 428 (1909). 64. Mattocks v. Lyman. 16 Vt. 113 (1844).
57. Com. v. Finai, 146 Mass. 570 (1888); 65. Hagenbaujih v. Crabtree, 33 Til. 225
State v. Burton, 94 X. C. 947 (1886). (1864) ; Cable v. Bowlus, supra; 2 Chamb.,
58. Hauler v. U. S. (W. Va. 1909). 173 Ev., 1422, n. 2.
Fed. 54, 97 C. C. A. 372. 66. Jones v. Morrell, 1 C. & K. 266, 47
59. People v. McCrea, 32 Cal. 98 (1867); E. C. L. 266 (1844).
433 Coxnrnoxs OF. 568
deny the statement had he seen fit. 07 The burden is upon the proponent of
the evidence to show r>8 to the satisfaction of the court, 69 that these conditions
of admissibility exist in any particular case. There is, however, no im-
propriety in leaving the question 70 as well as that of weight 71 to the jury.
568. [Admissions by Conduct] ; Statement Must Have Been Understood. 7 -
Affirmative evidence must be produced by the proponent 73 to the effect that
the statement was a definite 74 declaration of fact ; 75 and that the party ac-
tually heard 7(i and understood it. 77
All Attendant Object ice Facts Considered. Thus, the loudness of tone in
which a remark is made, 78 the intervention of objects calculated to deflect
sound,'" the proximity of the speaker, all are or may be material considera-
tions determining whether it may fairly be inferred that the party heard the
statement and understood it. 80
Understanding Assumed From Hearing. If it appears that a person
heard a remark, it may fairly be assumed, in the absence of evidence to the
contrary, that he understood it. If made in a party's hearing, it is not
necessary that it should have been made in his immediate presence. 81 One
may -be said to be " present " if there is " proximity within a distance suffi-
cient to permit hearing." 82 Proof that a remark is made within hearing
distance of a person is not equivalent to proof that the remark was heard, 83
unless the person must necessarily have heard it, 84 or it can reasonably be
inferred that he did so.
All Attendant Subjective Facts Considered.- It must appear that the
67. Com. v. Kenney, 12 Mete. (Mass.) 235 574, 41 S. E. 983 (1002): Farrell v. Weitx,
(1847); 2 Chanib., Ev.. 1423. 160-Mass. 288, 35 X. E. 783 (1804): People
68. People v. Mallon, 103 Cal. 513, 37 Pac. v. Bissert. 75 X. Y. Supp. 630, 72 App. Div.
512 (1S94J ; Drumright v. State. 29 C.a. 430 620 (1902) ; 2 Chamb.. Ev.. 1424, n. 4.
(1859), 77. Martin v. Capital Ins. Co., 85 Iowa
69. Miller v. Dill, 149 Ind. 320. 49 X. E. 643, 52 X. \Y. 534 (1892); Com. v. "Kenney.
272 (1897) ; Com. v. Kenney, supra: 2 supra: State v. Burton. 94 X. C. 947 (1886) ;
Chamb.. Ev.. 1423, n. 2. 2 Chamb., Ev.. 1424, n. 5. The silence must
70. State v. Perkins. 3 Hav.ks i X. C.) 377 amount to voluntary demeanor. State v.
,18-241. Blackburn (Del. 1892 1, 75 Atl. 536.
71. Jewett v. Bannhi-. 21 X. Y. 27 (I860): 78. Vincent v. Huff. 8 Serg. & R. (Pa.)
Pi-ce v. Pierce, 60 Vt. 309, 29 Atl. 304 381 (1822).
(1894) -. 2 Chamb., Ev.. 1-23. n. 4. 79. Yale v. Dart. 17 X. \'. Supp. 179
72. 2 Chaml>erVn-'ie. Evidence. 1424- i 1891) : Josephi v. Furnish, supra : 2 Chamb.,
14l > 7 Ev., 1425. n. 2. .
73. Joseph i v. Furnish. 27 Or. 260. 41 ' 80. State v. Record. 151 N. C. 695. 65
Pac. 424 i ISO.', i: People v. Cascone. 1? S. E. 1010 (1909).
N Y 317 7* X. P.. 2S7 i!906>: 2 Chnmb.. 81. Xeile v. Jakle. 2 C. & K. 709, 61 E.
Ev., 1424. n. 1. C. L. 700 .1849).
74.' Chapman v. State. 109 O.. 1". 34 S. E. 82. People v. Philbon, 13S Cal. 530. 71
369 (1899). Pao - (] ' 10031 : 2 Chamb.. Ev.. 1426. n. 2.
75. State v. Foley, 144 Mo. 600. 40 S. W. 83. Jackson v. Builders' \Yood Working
733 '(1898). Co., 36 X. Y. Supp. 227. 91 Hun 435 < 1895 i .
76. Dawson v. Schloss, 93 Cal. 194. 29 84. Moore v. Smith, 14 Serg. & R. (Pa.)
Pac. 31 (1892); Simmons v. State, 115 Ga. 388 (1826).
569 ADMISSIONS: BY CONDUCT.
party both heard and understood 85 the declaration in question. If the person
appears to have been unconscious, 80 asleep, 87 or even semi-conscious, 88 the
statement is incompetent, though there is some evidence that the person may
be shamming his unconsciousness. 89 The rule is the same if the person was,
at the time, drunk or stupified. 90 If it shall appear that he was so deaf 91
as to be unable to hear, no inference will be drawn from his silence.
Attention. In order that an inference should arise to the effect that he
understood a given statement made in his presence, it must affirmatively ap-
pear that his attention was, in point of fact, directed to the remark, 92 i. e.,
that he was listening to it. 93 If it appears that his attention was so diverted
from what was being said at the time by present suffering, 94 or occupation in
distinct affairs, 95 no inference arises from failure to controvert any injurious
statement made in the party's presence.
569. [Admissions by Conduct] ; Denial Must be Natural. 96 Affirmative evi-
dence must also be submitted that the party would be interested to deny the
statement were he able to do so, i. e., were it false. 97 All the relevant facts
pertaining to the declaration should be taken into consideration. 5 ' 8 The en-
tire occurrence should, therefore, be placed before the jury, who are at liberty
to draw any legitimate inferences from it as to the guilt of the accused. 99
It is good circumstantial evidence. 1
(1) Declaration Must Invite a Reply. The statement in respect to which
the conduct of the party is significant must be such as to call for a reply. 2
The fact covered by the statement and by it directly or indirectly asserted to
85. Riley v. Martinelli, 97 Cal. 575, 32 97. Brantley v. State, 115Ga. 229, 41 S. K.
Pac. 579 (1893); Wright v. Maseras, 56 695 (1902): Slattery v. People, 76 111. 217
.barb. (N. Y.) 521 (1869); 2 Chamb., Ev., (1875); Drury v. Hervey. 12(i Mass. 510
1427, n. 1. (1879); Stecher Lith. Co. v. Tnman. 175 N.
86. Dean v. State, 105 Ala. 21, 17 So. 28 Y. 124, 67 X. E. 213 (1903); 2 Chamb., Ev.,
(1894); People v. Koerner, 154 N. Y. 355, 1428, n. 1.
48 N. E. 730 (1897). 98. Fearing v. Kimball. 4 Allen (Mass.)
87. Lanergan v. People, 39 N Y. 39 (1868). 125, 81 Am. Dec. 690 (1862) : Davis v. Gal-
88. Gowen v. Bush, 76 Fed. 349, 22 C C. A. lagher, 124 X. Y. 487. 26 X. E. 1045 (1891) ; 2
196 (1896). Chamb.. Ev.. 1428. n. 2.
8. People v. Koerner. supra. 99. Aokerson v. People, 124 111. 563, 16
90. State v. Perkins, supra. 1\. E. 847 (1888) ; Com. v. Funai, 146 Mass
91. Tufts v. Charlestown, 4 Gray (Mass.) 570. 16 \. E. 458 (1888): Kelley v. People.
537 (1855). 55 N. Y. 565. 14 Am. Rep. 342 (1874): Ha-
92. Jones v. State, 65 Ga. 147 (1880). berty v. State, 8 Ohio Cir. Ct. 262 (1893) ; 2
93. Steer v. Little, 44 X H. 613 (1863); Chamb.. Ev., 1428. n. 3
State v. Rosa (X. J. 1905). 62 Atl. 695. 1. Watt v. People, 126 111. 9, 18 X. E. 340
94. Schilling v. Union R. Co., 78 X. Y. (1888) : Musfelt v. State. 64 Xeb. 445. 90 X.
Supp. 1015, 77 App. Div. 74 (1902): 2 \Y. 237 (1902): 2 Chamb., Ev.. 1428. n. 4.
Chamb., Ev., 1427, n. 10. 2. Whitney v. Houghton. 127 Mass. 527
95. Drury v. Hervey, 126 Mass. 519 (1879) . (1870) ; Sira v. Wabash, etc., R. Co., 115 Mo.
96. 2 Chamberlayne, Evidence, 1428- 127, 21 S. W. 905 (1893); 2 Chamb.. Ev.,
1431. 1429, n. 1.
435 SILENCE.
be true must be such as as to injuriously affect some considerable interest of
the party in his real 3 or personal 4 property, his right to liberty or some other
privilege, 5 or to expose him to the social and legal punishment of crime. 6
Should the party addressed be falsely led to believe that he has no concern
in the subject matter of the inquiry, his silence loses all probative force. 7
In like manner where a party is led to think that he has no motive to respond
to the statements made in his presence, e. g., because the remarks \vere suf-
ficiently favorable to him, 8 failure to reply possesses no evidentiary value.
Party Expected to Speak. The person addressed must realize that he is
the person addressed and is, at least, expected to speak and at liberty to do so.
Where the remarks in question are not addressed to the party 9 or apparently
intended for his consideration, 10 or where, for any other reason, he may ra-
tionally think that he is not. to be affected by his silence, 11 his conduct in the
matter may have no probative value whatever.
Inducements to Silence. Jf a person is at the time under the influence of
fear, in the custody of arresting office 1 rs, 12 o,r is restrained from making reply
by the presence of those with whom he is not in the habit of speaking on
terms of equality, 13 the silence may be without logical bearing.
(2) The Declarant Must be Entitled to Reply. The declarant must be
one who is a proper person to receive from the party in question information
upon the subject to which the statement relates. 14 A mere stranger is en-
titled to no reply. 15 Reticence due to mere disinclination to discuss private
affairs with others 10 especially with those who by reason of intoxication, 17
or for some other cause, are in no present condition to rationally consider
what is said, has, in many cases, little, if any, logical significance. The
person making the statement need, however, have no relation to the case in
3. Wheeler v. State, 109 Ala. 56, 19 So. 993 10. Pierce v. Pierce. 66 Vt. 369 (1894).
(1894) ; Adams v. Morgan, 150 Mass. 143, 22 11. Ludwig v. Blackshere. 102 Iowa 366, 71
N. E. 708 (1889) ; 2 Chamb., Ev., 1429, n. X. \V. 356 (1897) ; Gerding v. Funk, 64 N. Y.
2. Supp. 423, 48 App. Div. 603 (1900); 2
4. Matthews v. Forslund, 112 Mich. 591, Chamh., Ev., 1429, n. 10.
70 X. W. 1105 (1897) : State v. Henderson, 12. Infra, 593 ; 2 Chamb., Ev., 1530.
80 Mo. App. 482 (1900): 2 Chamb., Ev., 13. Bob v. State, 32 Ala. 560 (1858).
1429, n. 3. 14. Drury v. Hervey, supra; Blanchard v.
5. Walhridge v. Arnold, 21 Conn. 424 Evans, 55 X. Y. Super. Ct. 543 (1888): Gei-
(1852); Springer v. Byram, 137 Ind. 15. 36 ger v. State. 25 Ohio Cir. Ct. 742 (1904);
N. E. 361, 45 Am. St. Rep. 159. 23 L. R. A. 2 Chamb., Ev., 1430, n. 1.
244 (1893); 2 Chamb., Ev., 1429, n. 4. 15. Larry v. Sherburne, 2 Allen (Mass.)
6. Hicks v Lawson. 39 Ala. 90 (1863) : 34 (1861) : People v. Page, 162 X. Y. 272, 56
State v. Reed, 62 Me. 129 ( 1874) . X. E. 750 ( 1900) ; 2 Chamb., Ev., 1430, n. 2.
7. Guy v. Manuel. 89 X. C. 83 (1883). 16. Thornton v. Savage, 120 Ala. 449, 25
8. People v. Foo, 112 Cal. 17, 44 Pac. 453 So. 27 (1898) : Vail v. Strong, 10 Vt. 457
(1896). (1838).
9. State v. Mullins, 101 Mo. 514, 14 S. W. 17. Jones v. State, 2 Ga. App. 433, 58 S. E.
625 (1890) : Fry v. Stowers. 92 Va. 13, 22 S. 559 (1907) ; Francis v. Edwards, 77 N. C. 271
E. 500 (1895); 2 Chamb., Ev., 1429, n. 8. (1877).
5GU ADMISSIONS: BY CONDUCT. !>!>
which it is offered. 18 In any case, the person addressed must be aware
that he is entitled to speak. 19
Duty to tijjeak. Where the circumstances are such as to impose upon the
party a duty to speak, 20 as where persons are met for the express purpose
of adjusting the matter under consideration, 21 or, for some other reason, it is
evident that the party whose silence is being considered is under some moral
or legal duty to declare his position, 22 the inferences to be drawn from
silence grow to be more cogent in proportion as the duty of full disclosure
becomes plain and pressing.
Husband and Wife. Statements by a wife in presence of her husband, or
vice ve.rxa?* are subject to the same tests as are applied to the statements of
persons standing in less intimate relations. 24
(3) Time Should be Appropriate for Denial. Should the circumstances
be such that it would not be natural to expect a reply at that particular
time, 25 as where an immediate denial would constitute an unseemly in-
terruption of solemn ~ 6 or orderly proceeding's then in progress ; where, for
example, the declarant is a minister in the course of the delivery of a
sermon, 27 failure on the part of hearers to interrupt and correct his state-
ments on the spot implies no acquiescence in their truth. The same rule
applies to a judge, 2s an examining - tf or committing magistrate, prosecut-
ing officers, 30 counsel/ 11 parties appearing pro se :{2 or other person 33 dis-
charging an appropriate function in court. For the same reasons a party
18. Selig v 1,'ehfiiss, 195 Pa. 200. 45 Atl 25. McKlmurray v. Turner, 86 Ga. 215
919 (1900); Boyles v. McCovven, 3 X. J. L. 11890); Johnson v. Holliday, 79 Ind. 151
253 (181(1). (1881); 2 Chamb., Ev., 1431, n. 1.
19. Broyles v State, 47 fnd. 251 (1874); 26. R. v. Mitchell, 17 Cox Cr. 503 (1892).
Stowell v. Hall, 56 Or. 256, 108 Pac. 182 Statements made by a dying man. in presence
(1910); 2 Chamb., Ev., 1430, n. 6. Court of accused, regarding the circumstances at-
1'roccedings. One in open court is not re- tending the infliction of the fatal injury have,
garded as being at liberty to speak out in however, been received in evidence. Don-
denial of charges of guilt made against him nelly v. State, 26 X. J. L. 463, 504, 601,
at the time Xo adverse inference, therefore. 612 (1857) ; People v. Driscoll, 107 X. Y.
arises from his silence. Coin. v. Walker, 13 414. 424. 14 X. E 305 (18S7)
Allen (Mass.) 570 (1866); State v. Mullins. 27. Johnson v. Trinity Church Soc., 11 Al-
101 Mo. 514 (1S90); People v. Willett, 92 len (Mass.) 123 (1865).
N. Y. 29 (1883) : 2 Chamb., Ev.. 1430. n . 6. 28. Keith v. Marcus, 181 Mass. 377, 63
20. Giles v. Vandiver, 91 Ga. 192 (1892); X. E 924 (1902).
Bulfer v. People, 141 111. App 70 (1908). 29. Weaver v State, 77 Ala. 20 (1SS4K
21. Darlington v. Taylor, 3 Grant (Pa.) 195 30. H. v. Hollingshead. 4 C. & P.. 242
(1855). (1830).
22. Des Moines Sav. Bank v. Colfax Hotel 31. Puett v. Beard. 86 Ind. 104 (1882):
Co., 88 Iowa 4, 55 X. W. 67 (1893): Reid Little v. R. Co., 72 X. H. 61. 55 Atl. 190
v. Barnhart. 54 X. C. 142 (1853) : 2 Chamb.. (1903) : 2 Chamb.. Ev.. 1431. n. 7.
EV., 1430, n. 9. 32. Abercrombie v. Allen. 29 Ala. 281
23. Pierce v. Pierce. 66 Vt 369 (1894). ( 1856 ): Brainard v Buck. 25 Vt. 573 ( 1853) .
24. Owen v Christensen. 106 Iowa 394. 7i 33. Johnson v. Holliday. supra: Varnum v.
N. W. 1003 (1S98); Boyles v McCowen. 3 Hart. 47 Hun (X. Y.) 18 (1888).
N. J. L. 253 (1810) ; 2 Chamb., Ev., 1430,
n. 11.
437 SILENCE. 569
is not at liberty to make instant contradiction of the statements of a witness,
even though the person testifying should have been called by himself, 34
while the latter is giving testimony in a judicial hearing, 35 coroner's in-
quest 36 or preliminary investigation. 37 The rule is the same where a person
is engaged in giving his testimony as a deponent. 38 If no suitable oppor-
tunity for reply is afforded later, non-denial of statements so made is mean-
ingless, in an evidentiary sense. 39
Failure to Deny Later. Failure to improve a subsequent known oppor-
tunity for denial, as where the party might testify as a witness 40 or testifying
as a witness might have denied the statement but failed to do so, 41 may be
as significant as if an opportunity for instant denial were offered and allowed
to pass. 42
Effect of Arrest. The courts of several jurisdictions have deemed the
position of one under arrest on a criminal charge as presenting an instance
of the application of the rule which regards as insignificant statements made
in a person's presence at a time inopportune for denying it, however false. 43
They have accordingly denied all force to the making of unanswered state-
ments in the prisoner's presence. The same considerations have not im-
pressed other courts to the same effect. 44 When the relation of the speaker
to the accused is such as to make a reply appropriate, 45 the person addressed
knows that he is at liberty to speak, 46 and other circumstances of probative
force are presented in connection with the failure to reply, 47 the evidence
has been received, even when the party in question was under arrest. No
rule of exclusion has been formulated by the prevailing current of authority,
due weight, in each case, being accorded to the fact of arrest, as furnishing
a possible explanation of silence. 48 The question of admissibility in each
case is decided upon the facts presented to the court, 49 It is generally agreed,
34. McElmurray v. Turner, supra. 42. Supra, 566: 2 Chamb., Ev.. 1418
35. Id.; State v. Hale. l.">6 Mo. 102. 06 S. But see. to the contrary. Blackwell D. T. Co.
W. 881 (1900) ; Leggett v. Schwab, 97 X. Y. v. McElwee, 96 X. C. 71, 1 S. E. 676 (1887)
Supp. 805, 111 App. Div. 341 (1906): 2 43. Smith v. Duncan, 181 Mass. 435, 63
Chamb., Ev., 1431, n. 11. N. E. 938 (1902): State v. Foley. 144 Mo.
36. State v. Mullins. supra : People v. Wil- 600, 46 S. W. 733 (1898) : Hanger v. U. S.
lett. 36 Hun (X. Y.) 500 (18S5). (W. Va. 1909), 173 Fed. 54. 97 C. C. A. 372:
37. Bell v. State, 93 Ga. 557. 19 S. E. 244 2 Chamb., Ev., 1431. n. 19.
(1894) ; Com. v. Zorambo, 205 Pa. 109, 54 Atl. 44. Kelley v. People, 55 X. Y. 565. 14 Am.
716 (1903) : 2 Chamb., Ev.. 1431, n. 13. Rep. 342 (1874) : Murphy v. State. 36 Ohio
38. Tobacco Co. v. McElwee, 96 X. C. 71 St. 628 (1881) ; Green v. State. 97 Tenn. 50,
(1887). 36 s - w - " HS96) : 2 Chamb., Ev., 1431,
39. Persons v. Jones. 12 Ga. 371, 58 Am. n. 20.
Dec. 476 (1853); 2 Chamb.. Ev., 1431, n. 45. Id.
15 46. People v. Swaile, 12 Cal. App. 192, 107
40. Blanchard v. Hodgkins, 62 Me.. 119 Pac. 134 (1909).
(1873): Connell v. McXett, 109 Mich. 329, 47. Spencer v. State. 20 Ala. 24 (1852).
67 X. W. 344 (1896). 48. People v. Amaya, 134 Cal. 531, 66 Pac.
41. State v. Dexter, 115 Iowa 678, 87 N. 794 (1901).
W. 417 (1901). 49 - People v. Smith, 172 N. Y. 210, 64 N.
570, 571 ADMISSIONS: BY CONDUCT. 438
however, that when the officer enjoins silence upon the prisoner or cautions
him not to speak, no inference of acquiescence in the statements subsequently
made in his presence can properly be drawn. 50 Conduct in the presence of
an officer immediately before arrest stands practically in the same position
as conduct after arrest has taken place/*' 1
Silence of Prudence. J\*o inference of acquiescence arises from failure
to deny statements made in cases of difficult or dangerous discretion where a
reasonable prudence would suggest the wisdom of reticence until an un-
usual state of affairs can be diagnosed under competent advice. In general,
where, for any reason, a party is not at liberty to speak, e.g., because he has
agreed not to do so, 02 or he is acting under advice, 53 in accordance with
previous instructions, 54 or for some other reason at the time by some influence
outside of the free exercise of his own volition, 55 his silence implies no
acquiescence or assent.
570. Same ; Adequate Knowledge Failure to reply to statements made
in one's presence is not an adoption or acquiescence in their truth to such
an extent as to make them those of the person addressed, nor is such failure
even a relevant fact, unless it can be affirmatively shown that the person so
addressed was, at the time possessed of adequate knowledge, 56 as to the
truth or falsity of the statements. He must know the facts. 57
571. [Admissions by Conduct] ; Party Must be Physically and Mentally Capable
of Reply. It is further necessary that the party in question should be in a
physical and mental condition such as to enable him, when addressed, to
reply if he so desires. Where the individual in whose presence a statement
has been made is so severely injured by shooting 58 or other violence, as to be
unable to answer, remarks addressed to him, and received by him in silence,
cannot be taken to have secured his assent. Tf he is merely sick, 59 or in
course of transportation in an ambulance, 60 and though suffering some dis-
comfort, is able to answer, if so disposed, his failure to reply may still be
significant, by leading to an inference of assent. The rule is the same
where the person addressed is suffering such agony, grief 61 or other mental
E. 814 (1902); Murphy v. State, supra; 2 Corser v. Paul, 41 X. H. 24 (1860) ; 2 Chamb.,
Chamb., Ev., 1431, n. 25. Ev., 14.32, n. 1.
50. People v. Kennedy, 164 N. Y. 449, 58 N. 57. Griffith v. Zipperwick, 28 Ohio St. 388
E. 652 (1900); People v. Kessler. 13 Utah (1876); Morris v. Xorton, 75 Fed. 912, 21
69, 44 Pac. 97 (1896). C. C. A. 553 (1896); 2 Chamb., Ev., 1432,
51. People v. Wennerholm, 166 N. Y. 567, n. 2.
60 N. E. 259 ( 1901 ) . 58. Dean v. State, 105 Ala. 21, 17 So. 28
52. Slattery v. People, 76 111. 217 (1875). H895) ; 2 Chamb., Ev., 1433. n. 1.
53. Killian v. Georgia, etc., R. Co., 97 Ga. 59. Lallande v. Brown, 121 Ala. 513, 25
727, 25 S. E. 384 (1895). So. 997 (1899).
54. People v. Kessler, supra. 60. Sprinjrer v. Byram, 137 Ind. 15, 36 N.
55. Flanagin v. State, 25 Ark. 92 (1867); E. 361 (1893).
Sindall v. Jones, 57 Ga. 85 (1876). 61. State v Blackburn, 7 Pennew. (Del.)
56. Robinson v. Blen, 20 Me. 109 (1841) ; 479, 75 Atl. 536 (1892).
439 WEIGHT. 572, 573
agitation as to be unable to understand or answer 62 any remarks made in
his presence.
572. [Admissions by Conduct] ; Probative Force and Effect. 03 Admissions
by conduct are properly classified, as to force and effect, with extra-judicial
statements. 04 An admission by silence, being in reality another's statement
adopted by a party to be affected, not being controlled by the rules of pro-
cedure, rests for its force and effect entirely upon its logical quality. In
this respect, it is to be judged as any other admission 65 and may be con-
trolled and explained in like manner.' 56 It has been said that the probative
force of this evidence is not great and that it should be received with cau-
tion. 67
573. [Admissions by Conduct] ; Statements and other Facts. 68 The state-
ment that "admissions by conduct" are to be classed as admissions of the
extra-judicial type should not, it would seem, be accepted as correct. In
point of principle, and the symmetry which comes from consistency, such a
course seems objectionable, in that it. ignores two distinctions deeply em-
bedded in the frame work of the English law of evidence: (a) that between
statements and other acts, (b) that between the respective operation of pro-
cedure and logic. In reality, these two distinctions are different illustra-
tions of a single fact which is yet more fundamental in the law of evidence,
that while logic recognizes no distinction between statements and other acts
of a party, procedure, as applied to the law of evidence, asserts the existence
of a wide one. In other words, procedure places statements, whether made
by a party or not, in a class by themselves in any connection where the state-
ment is used as proof of the fact asserted in it.
This distinction appears artificial and invalid and is an incidental result
of the jury system. There is no real distinction between the testimony of
a witness concerning a statement he has heard and other facts he has ob-
served.
62. State v. Epstein, 25 R. I. 131, 55 Atl. City, etc., R. Co., 116 Mo. 114, 22 S. W. 474
204 (1903). (1893) ; 2 Chamb., Ev., 1434, n. 3.
63. 2 Chamberlayne, Evidence. 1433. 67. Stephens v. Barnwell, 154 Ala. 124, 45
64. Yarhorough v. Moss. 9 Ala. 382 (1846): So. 233 (1907); Godwin v. State, 1 Boyce
Yates v Shaw, 24 111. 368 (I860). (24 Del) 173. 74 Atl. 1101 (1910). As to
65. White v. White, 47 X. Y. Supp. 273, 20 the distinctions between statements and other
App. Div. 560 (1897) : Commercial Bank v. facts, see 2 Chamb., EV.. 1435, 1436, 1437;
Jackson. 9 S D. 605. 70 X. W. 846 (1897) : and as to deliberative facts. 1438.
2 Chamb.. Ev., 1434. n. 2. 68. 2 Chamberlayne, Evidence, 1435-
66. Traders' Nat. Bank v. Rogers. 167 Mass. 1438.
315, 45 X. E. 923 (1897) ; Webster v. Kansas
CHAPTER XX.
OFFERS OF COMPROMISE.
Offers of compromise; rule of exclusion, 574.
Concessions of liability received; accepted offers, 575.
By whom compromise offer may be made; plaintiff, 576.
Independent relevancy, 577.
Specific admissions, 578.
What offers are for peace, 579.
Without prejudice; English practice, 580.
Reasons for the rule; value of peace, 581.
574. Offers of Compromise ; Rule of Exclusion. 1 If peace between parties
to a controversy could reasonably have been the motive for making the offer
of compromise, it will be assum/ed that the thought was to buy peace re-
gardless of liability. 2 It i^, accordingly the rule of procedure that the
statement should not be received against the party making it. It is peremptor-
ily rejected when offered for such a purpose. 3 Any act, other than a state-
ment, done for the purpose of facilitating a compromise settlement will be
excluded for the same reasons, should the inference from it tend to establish
a concession of liability on the part of the doer. 4
Collateral Purposes. Even for collateral purposes the bona fide offer to
settle a dispute by paying or receiving a given sum is excluded as evidence
of an indebtedness or of any fact injuriously affecting the rights of the
1. 2 Chamberlayne, Evidence, 1439- 654 (1907) ; Sherer v. Pip'er, 26 Ohio St. 476
1441. Admissibility of evidence of offers (1875); Richards v. Noyes, 44 Wis. 609
made in way of compromise. See note, Ben- (1878) ; West v. Smith, 101 U. S. 263, 25
der Ed., 144 N. Y. 901. L. ed. 809 (1879) ; 2 Chamb., Ev., 1440, n.
2. Chicago, 13. & Q. R. Co. v. Roberts, 26 2.
C'olo. 329, 57 Pac. 1076 (1899); Sanborn v. 4. Stranahan v. East Haddam, 1 1 Conn. 507
Neilson, 4 X. H. 501, 509 (1S28): White (1836); O'Brien v. New York City Ry. Co.,
v. Old Dominion S. S. Co., 102 X. Y. 660, 6 105 N. Y. Supp. 238, 55 Misc. 228 (1907) ;
N. E. 289 (1886); 2 Chamb., Ev., 1439, Gehm v. People, 87 111. App. 158 (1899).
1440, n. 1. 5. White v. Old Dominion S. S. Co.. supra;
3. Mahan v. Schroeder, 236 Til. 392, 86 West v. Smith, supra. The offer cannot, for
N. E. 97 (1908); Boylan v. McMillan, 137 example, be used to impeach the declarant
Iowa 142, 114 X. W. 630 (1908) ; Hutchinson as a witness by evidence of it as being a
v. Nay, 183 Mass. 355, 67 N. E. 601 (1903) : statement contradictory of his present testi-
Xew York Life Ins. Co. v. Rankin (Mo.), mony. Walbridge v. Barrett, 118 Mich. 433,
162 Fed. 103 (1908) ; Tennant v. Dudley, 144 76 X T . W. 973 (1898) ; Neal v. Thornton, 67
N. Y. 504, 39 X. E. 644 (1895) ; Schiavone Vt. 221, 31 Atl. 296 (1894).
v. Callahan, 102 N. Y. Supp. 538, 52 Misc.
440
441
CONCESSIONS.
offerer. 5 Documents- prepased for use in negotiations for a compromise
cannot be given in evidence whether executed or not. 6
575. [Offers of Compromise]; Concessions of Liability Received; Accepted
Offers. 7 A limitation upon the rule is that as soon as the offer of compromise
is accepted, no further objection exists to proving the fact or the terms 8 of
such offer, the fact of its having been accepted, 9 or as to any conditions at-
taching to the acceptance, 10 or any other relevant fact relating to the exist-
ence of a contract for settlement. 11
Incidental Admissions of Liability. It is at all times possible for a
party, 12 even during the progress of compromise negotiations, 13 to make a
distinct admission of liability. 14 or one by implication, 15 as well as a specific
admission of an individual fact. 16 Such a declaration is at once competent. 17
Liability Assumed. Where negotiations for the settlement or adjustment
of a claim are conducted without denial of liability on the part of the debtor
expressed or implied, the existence and scope of the negotiations are intelligible
only upon the theory that the liability itself was assumed by both parties to
exist. 18 For example, should the only questions discussed be as to what is
the amount properly due, 19 or as to what are the best terms of payment which
will be conceded by the creditor, 20 whether some collateral indulgence will be
6. Sterrett v. Metropolitan St. Ry. (";.
225 Mo. 99, 123 S. W. 877 (1910); Roonu>
v. Robinson, 90 X. Y. Supp. 1055, 99 App.
Div 143 (1904); 2 Chamb, Ev., 1441.
7. 2 Chamber layne, Evidence. 1442-
1444.
8. Miller v. Campbell Commission Co., 13
Okl. 75, 74 Pac. 507 (1903) ; 2 Chamb., Ev.,
1442, n. 1.
9. Harman v. Vanhattan, 2 Vern. 717
(1716).
10. International^ etc., R Co. v. Ragsdale.
67 Tex. 24, 2 S. W. 515 (1886).
11. Stuht v. Sweesy, 48 Neb 767, 67 X. \V.
748 (1896); Pym v. Pym. 118 Wis. 662, 96
X. \V. 429 (1903) ; 2 Chamb., Ev., 1442, n.
4. A stricter rule. It has, however, also
been held that not until the contract for a
settlement has actually been carried out
into an accord and satisfaction does the rule
excluding a compromise offer cease to apply.
Rideout v. Newton, 17 N. H. 71 (1845):
Tennant v. Dudley, supra.
12. Tenhet v Atlantic Coast Line R. Co.,
82 S. C. 465, 04 S. E. 232 (1909).
13. Hartford Bridge v. Granger, 4 Conn
142 (1822) ; Hudson v. Williams (Del. 1908).
72 Atl. 985.
14. Story v. Nidiffer. 146 Cal. 549. SO
Pac. 692 (1905) ; Teasley v. Bradley, 110 Ga.
"17. 35 S. E. 782 (1900); Hyde v. Stone, 7
end. (N. Y.) 354 (1831); 2 Chamb., Ev.,
1443, n. 4.
15. Hopkins v. Rodgers, 91 X. Y. Supp.
749 (1905); Mason v. Agricultural Ins. Co..
150 Mo. App. 17, 129 S. W. 472 (1910) ; 2
Chamb., 1443, n. 5.
16. Infra, 578 et seq.; 2 Chamb., Ev.,
1451 et seq.
17. Paris v. Waddell, 139 Mo. App. 288, 123
S. W. 79 (1909) ; Bartlett v. Tarbox, 1 Keyes
(X. Y.) 495, 1 Abb. Dec. 120 (1864); 2
Chamb., Ev., 1443, n. 7. For example, an
offer to retract a libellous statement cannot
be treated as an offer of compromise. Dal
ziel v. Press Pub. Co., 102 X*. Y. Supp. 909, 52
Misc. 207 (1906).
18. Kutcher v. Love, 19 Colo. 542. 36 Pac.
152 (1894): Armour v Gaffey. 165 X. Y.
630, 59 X. E. 1118 (1901).
19. Brice v. Bauer, 108 X. Y. 428, 15 N.
E. 695, 2 Am. St. Rep. 454 (18S8) -. Kahn v.
Traders' Ins. Co.. 4 Wyo. 419, 34 Pac. 1059,
62 Am. St. Rep. 47 (1893) ; 2 Chamb., Ev.,
1444. n. 2.
20. Teasley v. Bradley, supra ; Snow v.
Batchelder. 8 Cush. (Mass.) 513 (1851);
Ferguson v. Davidson. 147 Mo. 664, 49 S. W.
859 (1899); Bartlett v. Tarbox, supra; 2
Chamb., Ev., 1444, n. 3.
576, 577 OFFERS OF COMPROMISE. 442
afforded the declarant other than as to time of payment, 21 the evidence of acts
or statements of the debtor made or done under such circumstances will be
competent as admissions. 22
576. [Offers of Compromise] ; By Whom Compromise Offer May be Made ; Plain-
tiff.- 3 The peace oiler may have been made by a plaintiff who agrees to
accept a payment of money or other act in discharge of his claim, not as con-
stituting a measure of his true demand, but as a concession made as an in-
ducement for the purpose of obtaining an adjustment. 24 If his offer be refused,
he is entitled to insist that he shall not be prejudiced by having made it. 25
Xor should he be permitted to suffer from having intimated a willingness to
consider a peace-offer if his adversary should see fit to make one. 26
Defendant. The typical peace-offer is perhaps more frequently made by
the debtor than by the creditor, by the defendant, than by- the plaintiff. 27 Such
an offer will be denied all evidentiary force as an admission. 28
Afjent. An offer of compromise, in the sense of a peace-offer, may be made
by an agent on behalf of his principal. 29
577. [Offers of Compromise] ; Independent Relevancy. 30 An offer of com-
promise may be independently relevant. 31 Such an offer may render a relevant
reply intelligible. 32 It may serve to transfer the obligation of paying costs
after is was made. 33 An otherwise unexplained lapse of time may be accounted
for in this way. 34 Mental states other than consciousness of liability may be
established in the same way. 35 Composite facts such as waiver, 30 good faith
21. Bassett v. Shares, 63 Conn. 39, 27 Atl. 139 App. Div. 217 (1910); 2 Chamb., Ev.,
421 (1893); Wallace v Hussey, 63 Pa. 24 1447, n. 1.
(1869) ; 2 Chamb, Ev., 1444, n. 4. 28. Georgia Ry. & Electric Co. v Wallace
22. St. Louis & S. F. R. Co. v. Stone, 78 & Co., 122 Ga. 547, 50 S. E. 478 (1905);
Kan 505. 97 Pac. 471 (1908): Tapp v. Dib- Grebenstein v. Stone & Webster Engineering
rell, 134 N. C. 546, 47 S. E. 51 (1904). Corp., 205 Mass. 431, 91 N. E. 411 (1910).
23. 2 Chamberlayne, Evidence, 1445- 29. Beattie v. McMullen, Weland & Mc-
1449. Dermott, 82 Conn. 484, 74 Atl. 767 (1909);
24. South Covington & C. St. Ry. Co. v. Larsen v. City of Ledro-Woolley, 49 Wash.
McIIugh, 25 Ky. L Rep 1112, 77 S. W. 202 134. 94 Pac. 938 (1908); 2 Chamb.. Ev.,
(1903); City of San Antonio v. Stevens 1448. Explanation Permitted See 2
(Tex Civ. App. 1910), 126 S. W. 666. Chamb, Ev., 144!)
25. Fox v. Barrett, 117 Mich. 162. 75 X. 30. 2 Chamberlayne, Evidence, 1450
W. 440 (1898) ; Tennant v. Dudley, 144 N. 31. Western Union Telegraph Co v. Stubbs
Y. 504, 39 N E. 644 (1895); 2 Chamb., Ev., (Tex. Civ App. 1900). 94 S. W. 1083; 2
1445, n. 2. Chamb., Ev., 1450.
26. Pentz v. Pennsylvania F. Ins. Co, 92 32. Lucas v. Parsons. 27 Ga. 593 (1859).
Md 444, 48 Atl. 139 (1900); Edwards v. 33. Brown v. People, 3 Colo. 115 (1876).
Watertown, 13 X. V. Supp. 309 (1891); 2 34. Jones v. Foxall. 15 Beav. 388 (1852)
Chamb., Ev , 1445, n. 3. Object other than 35. Cross v. Kistler, 14 Colo. 571, 23 Pac.
to buy peace. See Daniels v. Woonsocket, 11 903 (1890)
R. I 4 (1874); 2 Chamb., Ev.. 1446. 36. Gould v. Dwelling-House Ins. Co., 134
27. Acker, Merrall & Condit Co v. McGaw. Pa. 570, 19 Atl. 793, 19 Am. St. Rep. 717
106 Md. 536, 6S Atl. 17 (1907) : Union Bank (1890).
of Brooklyn v. Deshel, 123 N. Y. Supp. 585,
443
SPECIFIC ADMISSIONS.
1 578, 579
in advancing a claim, 57 alleging a defense 38 or the like 39 in which a relevant
mental state forms an important element, stand in the same position.
578. [Offers of Compromise] ; Specific Admissions. 40 Statements of a party
asserting the existence of facts other than liability are not within the rule which
rejects offers of compromise and are, therefore, so far as relevant, 41 received.
Unlike the concessions of liability implied in an offer of compromise, such state-
ments are in the great proportion of instances, made as and because the actual
facts are believed to be as they are asserted to be. 42 They are therefore received
in evidence as admissions either by statement 43 or conduct. 44
Connection }\ith Compromise Negotiations. That assertions of this nature
were made in the course of treaties for peace 40 does not conclusively establish
their unavailability as evidence. That the specific admission of a separate fact
was given at an interview held for the purpose of effecting a compromise settle-
ment, 46 furnishes no ground for its rejection. The admission of any distinct
fact, made eo nomine, is competent, 47 though made in course of proceedings
for a compromise. 48 That such admissions of independent facts are connected,
to some extent, with compromise negotiations, 49 may always be brought to the
attention of the tribunal as bearing on probative force.
579. [Offers of Compromise] ; What offers are for Peace. 50 The vital ques-
tion in every such connection is one of intention 5l or, more properly speaking,
37. Anderson v. Robinson, 73 Ga. 644
(1884) ; Whitney Wagon Works v. Moore, 61
Vt. 230, 17 Atl. 1007 (1888) ; 2 Chamb, Ev.,
1450, n. 7. The courts of New York carry
immunity for compromise offers so far as to
deem them immaterial in this connection
also. York v. Conde, 20 N Y Supp. 961.
66 Hun 316 (1892).
38. List's Ex'x v. List, 26 Ky. L. Rep.
691, 82 S. W. 446 (1904).
39. Watson v. Reed, 129 Ala. 388. 29 So.
837 (1900); Butler Ballast Co v. Hoshaw,
94 111 App. 68 (1000) (interest in result).
40. 2 Chamberlayne, Evidence. 1451-
1455
41. Pentz v. Pennsylvania F. Ins. Co., supra
42. Hose v. Kose. 112 Cal. 341, 44 Pac.
608 (1896); Domm v. Hollenbeck, 142 111
App. 439 (1908); Durgin v Somers. 117
Mass 55 (1875); Hess v. Van Auken, 32 X.
Y. Supp. 126, 11 Misc. 422 (1895): White
v. Old Dominion S. S. Co., supra; 2 Chamb.,
Ev., 1451. n. 3.
43. Perkins v. Concord R. Co., 44 N. H
223 (1862).
44. Grimes v. Keene, 52 N. H. 330 (1872)
See. however, Kierstead v. Brown, 23 Neb
595. 37 N. W 471 il88) ; Boylan v McMil-
lan, 137 Iowa 142, 114 X. W. 630 (1908).
45. State v. Lavin, 80 Iowa 555, 46 X. W.
553 ( 1890) ; Snow v. Batchelder, supra; Bart-
lett v. Tarbox, supra; 2 Chamb., Ev., 1452,
n. 1.
46. Akers v. Demond, 103 Mass. 31S
( 1869) ; Wason v. Burnham, 68 X H. 53, 44
Atl. 693 (1896).
47. Hartford Bridge Co. v. Granger, supra
48. Kutcher v. Love, supra. Subsequent
admissions made independently of compromise
offers are competent beyond question. Akers
v. Kirke, 91 Ga. 590, 18 S. E. 366 (1893) ;
Cole v. Cole, 33 Me. 542 (1852). An abso-
lutely independent fact, though evidenced by
statements, is competent. Sasser v. Sasser,
73 Ga. 275 (1884).
49. Hose v. Rose, supra; Patrick v. Crowe,
15 Colo 543, 25 Pac. 985 (1890) ; 2 Chamb.,
Ev., 1453, n. 2 As to statements partly
incompetent, see Beaudette v. Gagne. 87 Me.
534, 33 Atl. 23 (1895); Pelton v Schmidt.
104 Mich 345, 62 X. W. 552, 53 Am. St. Rep.
462 (1895); 2 Chamb., Ev.. 1454, n. 2.
Treaties for peace assisted. See 2 Chamb.,
Ev.. 1455, and cases cited
50. 2 Chamberlayne, Evidence, 1456-
1462.
51. Hartford Bridge v. Granger, 4 Conn.
142 (1822); Colburn v. Groton, 66 N. H.
579
OFFERS OF COMPROMISE.
444
of intent. 52 If the effort were to buy peace regardless of liability or, in case
of a plaintiff, irrespective of the amount actually due, evidence of the fact of an
offer, of its terms or even of any incidental concession, 53 will, by the operation
of the rule of procedure, be rejected. 54 On the other hand, where the state-
ment was made as an admission, i.e., because believed to be in accordance with
the facts, the declaration is admissible 55 and should be given due weight.
Function of the Court. The question of intention or intent is to be decided
by the presiding judge, 56 as a finding of fact 57 either upon direct 58 or cir-
cumstantial 59 evidence. The judge is justified in requiring strong proof in
order to rule that the statement or offer is incompetent. 60
Determining Factors; Amount Suggested. Should the demand be a liqui-
dated one, where presumably the entire amount is due if any part of it is pay-
able, 61 an intention to compromise, regardless of liability, will be inferred from
an offer to accept or pay less than the entire amount claimed. 02 Per contra, the
announcement by a party of a desire to receive or pay the entire amount in-
volved will be regarded in the light of an admission. 03
151, 28 Atl. !)5 (1889); 2 Chamb., Ev.,
1456, 1457, n. 1.
52. Finn v. New England Telephone & Tele-
graph Co., 101 Me 279, 64 Atl 490 (1906) ;
Smith v Morrill, 71 X H. 409, 52 Atl 928
(1902).
53. Jewett v Fink, 47 Wis. 446, 2 N. VV.
1124 (1879).
54. Hartford Bridge v Granger, supra
55. McKinzie v Stretch, 53 111. App. 184
(1893); Taylor v Bay City St. K. Co., 101
Mich 140, 59 N. W 447 (1894); Hurd v.
Pendrigh, 2 Hill (N. Y.) 502 (1842); 2
Chamb, Ev., 1457, n 5.
56. Donley v Bailey, 48 Colo 373, 110 Pac
65 (1910); Whitney v. Cleveland, 13 Ida.
558. 91 Pac. 176 (1907); 2 Cbamb , Ev .,
1458, n. 1.
57. The action of the court is not review-
able Greenfield v. Kennet, 69 N. H. 419, 45
Atl. 607 (1899).
58. West v. Smith, 101 U. S 263, 25 L ed
800 (1879).
The use of the phrase " without preju-
dice " furnishes direct evidence of an inten-
tion to reserve from the statement its qual-
ity of an admission, either properly so called
or as an ''admission by conduct" Moly-
neaux v Collier, 13 Ga 406 (1853); White
v. Old Dominion S. S Co. 102 X. Y (JfiO,
6 X K 289 (1886): 2 Chamb. Ev.. 145S.
n 3 In America, any phrase of a meaning
equivalent to ''without prejudice" may be
substituted \vith equal effect Johnson v
Trinity Church Soc., 11 Allen (Mass ) 123
(1865). The use of this or any similar
phrase is, however, not essential Reynolds
v. Manning, .15 Md. 510 (1859).
In New Jersey direct evidence of an in-
tention to restrict the effect of the statement
as an admission must be shown, in order to
secure rejection; or it must appear that
the offer was made as the result of a compro-
mise suggestion proceeding from the other
side Richardson v. International Pottery-
Co., 63 X. J. L. 248, 43 Atl. 692 (1899).
The New York rule is the same. " Even
the offer of a sum by way of compromise
is held to be admissible unless stated to be
confidential or made without prejudice."
Brice v. Bauer, 108 N. Y. 428, 15 N E. 695
(1888).
59. Chicago, etc., R. Co v. Roberts, 26
Colo. 32!), 57 Pac 1076 (1899); Scheurle v.
Husbands, 65 X. J. L. 40, 46 Atl 759 (1900) ;
2 Chamb., Ev . 1458, n. 4.
60. Townsend v Merchants' Ins. Co., 36
X. Y. Super Ct 172, 45 How. Pr. 501, aff'd
56 X. Y 655 (1873); Cochran v Baker, 34
Or. 555. 52 Pac. 520. 56 Pac. 641 (1899).
61. Scheurle v Husbands, supra; 2 Chamb.,
Ev. 1459
62. Wayman v. Hilliard, 7 Ring 101
(1830).
63. See Lofts v. Hudson, 2 M & R. 481
( 1828) : St. Louis'S. W. R Co. v. Smith (Tex.
Civ App. 1903), 77 S. W. 28.
445 WITHOUT PREJUDICE. 580
Time. Should the offer have been made at a time when the litigant sug-
gesting it knew that a demand had been made against him and that he disputed
it, 64 and purposed continuing to do so, the inference that the concession was by
way of compromise is much stronger than that which would have arisen had the
suggestion been made before that time 05 or after attempts at settlement had
been abandoned. Should the parties be in litigation when the offer was
tendered/' 6 or should the statement be made or act done at a time when com-
promise negotiations are actually pending between the parties, 67 the claim that
the offer was by way of compromise would correspondingly increase in proba-
tive force.
Prior to Negotiations. Where the offer was made before any controversy
had arisen in the matter 6S or prior to any time at which it could definitely have
been known whether any negotiations would be allowed in it, 69 the statement
in question may well be taken to have been made because it was true. It would
be assumed that a declaration made under such circumstances was an admis-
sion. 70
Subsequent to Negotiations. Where no negotiations are pending because
they have been broken off 71 or abandoned, and the discussion is being held about
something else, 72 the statement can only be taken to have been made as an admis-
sion. Where the person by whom 7:i or to whom 74 the offer is made is evi-
dently one who has no authority to adjust the matter in dispute, the same
result follows.
580. [Offers of Compromise]; "Without Prejudice"; English Practice. 75
The rule adopted in England requires that, in order to exclude an offer of
compromise, there must have been some express reservation to that effect made
by the declarant, at the time his statement was made or in connection with it. 7 "
The phrase customarily employed for the purpose is that the declaration is to
be taken as having been made " without prejudice." 77 This expression, 78 or
64. Tenhet v Atlantic Coast Line R. Co.. 227, 44 So. 699 (1907); Finn. v. New Eng
82 S. C. 465, 64 S. E 232 (1909). land Telephone & Telegraph Co, supra
65. American Ins. Co v. \Valston, 111 111 71. Smith v. Whittier, 95 Cal. 279, 30 Pac.
App. 133 (1903); Doncourt v. Denton, 115 529 (1892); Akers v. Kirke, 91 Ga. 590
N. V Snpp 1118. 131 App. Div. 905 (1909); (1893)
2 Chamb., Ev , 1460, n. 2. 72. Freeman v. Gigham. 65 Ga 580 (1880).
66. Reynolds v. Manning, 15 Md. 510 73. Ashlock v. Linder, 50 111. 169 (1869);
(1859) ; 'Cullen v Ins. Co of North America. Moore v H. Gaus, etc., Mfg. Co. 113 Mo. 98.
126 Mo. App 412, 104 S. \V. 117 (1907). 20 S W. 975 (1892) ; 2 Chamb., Ev., 1462.
67. Gibbs v Johnson, 10 Fed Cas. No n. 4
5,384 < I860) ; 2 Chamb., Ev.. 1460. u. 4. 74. Smith v. Whittier, supra.
68. Paris v. Waddell; 139 Mo App 28S, 75. 2 Chamberlayne. Evidence, 1463-
123 S W. 79 i 1009) : Doncourt v. Denton. 1468.
supra: 2 Chamb.. Ev.. 1461. n. 2 76. Wallace v Small, M & M 44fi. 22 E C.
69. U. S v Three Hundred and Ninety Six L 562 (1830) : 2 Chamb.. Ev.. 1463, 1464.
Barrels Distilled Spirits. 28 Fed Cas No n. 1
16.503 (1866) 77 - -Tones v. Foxall. 15 Beav. 388 (1852)
70. Southern Rv. Co v Reeder. 152 Ala 78. Walker v Wilsher. L R. 23 Q. B D.
581 OFFEBS OF COMPROMISE, 446
any similar phrase 79 will be construed as constituting an express reservation
from, the declarant's statement or ofl'er of any probative quality as an admission.
The rule is the same in Canada. 80
581. [Offers of Compromise]; Reasons for the Rule; Value of Peace. 81
Prominent among the reasons which have been regarded as justifying the rule
of procedure rejecting concessions of liability made by way of compromise 8a
is the undoubtedly correct proposition that it is good public policy to adjust dif-
ferences by mutual concessions. 83 It has been felt that the attainment of so
desirable an end ought not to be rendered difficult, if not impossible, by knowl-
edge on the part of the conceding litigant that, should the negotiations fail,
he may be penalized by having his concessions used against him on any subse-
quent litigation as constituting his admissions. 84
335 (1889); Re Kiver Steamer Co., L. R. 6 82. Colburn v. Groton, 66 N. H. 151, 28
Ch. App. 822 (1871). Atl. 95 (1889) ; Lee v. Prudential Life Ins.
79. Jardine v. Sheridan, 2 C. & K. 24 Co., 206 Mass. 440, 92 X. E. 709 (1910).
(1846). See also 2 Chamb., Ev., 1465, 83. Harrington v. Lincoln, 4 Gray (Mass.)
1466, 1467. 563 (1855); Perkins v. Concord R. Co., 44
80. Stewart v. Muirhead, 29 N. Pr 273 N. H. 223 1 1862) : 2 Chamb., Ev., 1469, n. 2.
(1890) ; Pirie v. Wyld, 11 Ont. 422 (1886) ; 84. West v. Smith, 101 U. S. 263, 25 L. ed.
2 Chamb., Ev., 1468, n. 1. 809 (1879). For a discussion of the reason
81. 2 Chamberlayne, Evidence, 1469- that the jury may be misled, and the value of
1471. the rule, see 2 Chamb., Ev., 1470, 1471.
CHAPTER XXI.
CONFESSIONS.
Confessions, 582.
Requisites of admissibility , 583.
Misleading inducements, 584.
hope and fear; how mental state is established
subjective considerations, 585.
objective considerations ; hope, 586.
assumption of continuance, 587. s
physical or mental discomfort, 588.
pain, 589.
threats, 590.
moral or religious, 591.
who are persons in authority, 592.
effect of arrest, 593.
effect of suspicion, 594.
deception, 595.
illegality, 596.
Self-incrimination; history of doctrine, 597.
" nemo tenetur se ipsum accusare " ; present rule stated, 598.
procedure and reason, 599.
knowledge and waiver, 600.
preliminary hearings, 601.
Duress, 602.
Form of confessions, 603.
Independent relevancy, 604.
Introduction of confession into evidence; "hearing on voir dire, 605.
hearing of the jury, 606.
leaving question to the jury, 607.
Probative for<-c; informative considerations, 608.
judicial confessions, 609.
corroboration required, 610.
a question for the jury, 611.
judicial views. 612.
specific admissions, 613.
o w/iow extra judicial confession is made, 614.
Administrative detail, 615.
TTie evolution of reason, 616.
447
582 CONFESSIONS. 448
582. Confessions. 1 " There is no branch of the law of evidence in such
inextricable confusion as that relative to confessions." 2 The general rule that
a confession, a statement by one accused of crime directly or by necessary in-
ference admitting his guilt, is receivable in evidence, provided it complies with
certain requirements of procedure, 3 is not questioned in any quarter. 4 The
difficulty with regard to the matter is. in large measure due to the fact that an
attempt is being made, in this connection, on certain alleged grounds of public
policy, rigidly to maintain rules of procedure, as matters of substantive law,
which are hard to sustain in point of reason. Just here has been, as it were, a
fierce struggle in the law of evidence between the formalism of the past and the
rationalism of the future. Here, the influence of formal though still com-
paratively recent, 5 procedure in the law of evidence reaches its highest point, as
nowhere else in this branch of the law, not even in respect to the hearsay anom-
aly is definite determinate force accorded the existence of certain facts, en-
tirely regardless of their logical effect. While a certain procedural resem-
blance to offers of compromise 7 is, as is elsewhere more fully noticed 8 distinctly
observable, the rules governing confessions are nevertheless essentially unique
and comparatively unrelated to other regulations of procedure. Procedural
rules controlling confessions are in main two; one affirmative, the other
negative. The affirmative rule may be thus stated: An incriminating state-
ment, 9 directly suggesting guilt of the crime charged, certain 1 " and complete 11
in itself, made by a defendant in a criminal proceeding 12 or by some one en-
titled, under the rules of substantive law, to affect him by declarations, 1 " is
admissible against such a defendant; provided that such a declaration is
voluntary. 14 Each of these requirements is one of procedure, and enforced
1. 2 Chamberlayne, Evidence, 1472. ments of torture are freely received without
2. State v. Paterson, 73 Mo. t>95, 705 objection. Pain's Trial, 10 How. St. Tr. 754
(1881), per Sherwood, C. J. (1690) (Scotland) ; long's Trial, 6 How. St.
3. Steph. Dig. "Evidence" (May's Ed. Tr. 25!) (1664) < threatened with the rack );
1877), 72. See also, 1 Greenl. Ev. (12th Ed. I Judicial Use of Torture, by A. Lawrence Lo-
219 et seq.; 2 Hen. & Heard Lead. Crim. well, 11 Harv. L. Review, 293 (1898). Con-
Cas. (2d Ed.) 484, (530; 2 Russ. Crimes (8th fessions as evidence. See note. Bender Ed.,
Ed.) 824; 1 Whart. Crim. Law (17th Ed.) 103 N. Y. 587. Admissibility of confessions
683." U. S. v. Stone, 8 Fed. 254, 262 in criminal cases. See note. Bender Ed., 121
(1881), per Hammond, J. N. Y. 280. Admissibility of confessions. See
4. People v. Hedeff. 110 X. Y. Suppl. 750. note, Bender Ed., 159 N. Y. 346, 362.
125 App. Div. 800 ( I'lOS) -, People v, Rogers. 6. 837 et seq.
192 X. Y. 331, 85 X. E. 135 (1908). 7. 574 et seq.
5. Early views. While the procedural 8. 608.
rules relating to confessions are, at the pres- 9. 583.
ent day, radical and enforced with peculiar 10. 583.
stringency, it can scarcely be said that they 11. 583.
are of much antiquity in the law of England. 12. 583.
Early cases contain no reference to any set- 13. 538 et seq.
tied rule that a confession influenced by hope. 14. 583 et seq. Xothing about this rule
fear or duress is to be rejected. Incriminat- can be said to be remarkable. That which
ing statements extorted from the declarant calls for comment, not unmixed with surprise
even by the use of the rack or other instru- are the additional procedural rules of rejec-
449 REQUISITES. 583
with much stringency. The negative rule is to the effect that no confession not
voluntary will be received in evidence. Strangely enough, it is apparently
deemed an equivalent statement of the negative portion of the rule to say that :
Any inducement operating on the mind by way of fear or hope, however slight,
any promise or threat whatever, if held out by a person in authority over
criminal proceedings and relating to some benefit or injury in connection with
such proceedings, suffice to exclude a confession so induced. 15
583. [Confessions]; Requisites of Admissibility. 10 As seen in connection
with the rule of procedure permitting the receipt of confessions of guilt, 17 it
is essential to the admissibility of such confession that it should (a) have been
a declaration made by a party accused of the crime involved in the proceedings
or by some one legally entitled to speak for him, (b) be incriminating, (c)
certain, (d) complete in itself and, above all, (e) the voluntary act of the de-
clarant. It may be convenient briefly to consider the requisites for admis-
sibility in this order.
The confession must in the first place be made by the defendant in the case
on trial 18 and the admission of a third person is not available to the defendant
as a confession of the former. 19
It must also be incriminating in the sense of admitting liability 20 and it is
not enough that it admits the overt act and at the same time sets up a justifica-
tion. 21 This is the distinction between a confession and an admission as the
word admission may be properly applied to any admission of a relevant fact
while confession is confined to an admission of criminal liability. 22
The confession must be sufficently certain to identify the crime and the
criminal but need not in terms state the time and place to which it refers. 23
The confession must also be complete in itself and the entire statement must
be put in evidence in justice to the defendant as well as to the government. 24
tion which cluster as it were, about this plain 1061 (1907), citing 1 Greenleaf on Evid.,
fundamental rule of admissibility and seem, at 170.
times, practically to obstmre and even nullify 21. Powell v. State, 101 Ga. 9, 29 S. E.
it. 309 (1897) (murder): State v. Cadotte, 17
15. Bartley v. People, 156 111. 234, 40 X. E. Mont. 315. 42 Pac. 857 (1895): Folds v.
831 (1895). -State, 123 Ga. 167. .~>1 S. E. 305 (1905) (ac-
16. 2 Chamberlayne, Evidence, 1473- cident).
1482. 22. Oregon. State v. Porter, 32 Or. 135,
17. 583. 49 Pac. 964 (1897).
18. Lowe v. State. 125 Ga. 55, 53 S. E. 23. Cook v. State (Ga. 1906), 53 S. E. 104,
1038 (1906) (conspiracy): Campos v. State 124 Ga. 653.
(Tex. Cr. App. 1906), 97 S. W. 100. 24. Davis v. State (Ala. 1910). 52 So. 939.
19. State v. Bailey (Kan. 1906), 87 Pac. "All parts of the confession, inculpatory or
189; State v. Jennings (Or. 1906), 87 Pac. exculpatory, should be weighed together."
524 [denier! in 89 Pac. 421 (1907)]. State v. McDonnell, 32 Vt. 491. 532 (1860).
20. Pilgrim v. State (Tex. Cr. App. 1910), Admission partial. A distinct admission
128 S. W. 128. "A confession in its legal of guilt contained in a letter which has been
sense means an acknowledgment of guilt." torn is admissible in evidence as the rule
See McCann v. People, 226 111. 562, 80 N. E. that the whole instrument must be read must
584
CONFESSIONS.
450
Only a voluntary statement by the accused is admissible 25 and this means
that the statement must be free and uninfluenced by inducement, threat or
undue influence. 20
584. [Confessions] ; Misleading Inducements. 27 In general, what is meant
by saying that a confession is " involuntary '' is that it has been induced by
the hope of receiving some beuetit - s or by the fear of suffering some injury 29
in connection with pending proceedings 30 which has been held out to the
declarant by a person in authority 31 over the course of the investigation. 32
The well recognized misleading motives under the influence of which pro-
cedure anticipates danger to judicial administration under certain circum-
stances, are hope and fear. The risk run by a tribunal in relying upon in-
criminating statements so induced has found judicial expression of great
frequency and clearness. " It is not because the law is afraid of having truth
elicited," said Mr. Justice Williams, 33 '' that these confessions are excluded,
but because the law is jealous of not having the truth." 34
The degree of fear, assuming it to be sufficient to affect the truthfulness of
the statement,' 55 is not material, so far as the exclusion of the statement is
concerned, if the fear has been applied in connection with the proceedings by
some person in authority. 36 To have the effect of rejecting a statement in-
be taken with some qualifications and a party
may always offer a distinct and severable por-
tion of a writing in evidence leaving to the
other party the right to put in the other
portions which he claims qualify it. State
v. Corpening, 157 X. C. 621, 73 S. E. 214,
38 L. R. A. (N. S.) 1130 .(1011)
25. Sims v. State ( Tla 1!)10), 52 So 198.
" A confession is a voluntary admission of
guilt.'' Ransom v. State, 2 Ga. App. 826,
59 S. E 101 (1907); Hi ley v. State, 1 Ga
App. 651, 57 S E. 1031 (1907).
Confession. A confession not shown to be
voluntary is not admissible even to impeach
the defendant when he testifies Jones v.
State, !)7 Xel>. 151. 14!l N T . \V. 327. A con-
fession not shown to be voluntary is not ad-
missible at the trial of a prosecution for
perjury committed at the trial of the crime to
which the confession pertained. Murff v.
State (Tex. Crim App.), 172 S W. 238
Confession made by a man overcome with
heat to a sheriff who is taking care of him
is voluntary and admissible in evidence.
Shelleuberger v State, 97 Neb. 498. 150 N
W. 043, L. R. A. 1915 C 1163 M915)
26. A confession is not admissible when
made by one charged with murder who is
sick and in fear of being lynched and is ap-
proached by a newspaper man who says he is a
Spiritualist and can look into his heart and
see the crime he has committed. This is
more than fear induced by a threat of punish-
ment after death. Johnson v. State, 107
Miss 196, 65 So. 218, 51 L. R. A. (N. S.)
1183 (1914).
27. 2 Chamberlayne. Evidence, 1483-
1493.
28. Com. v. Flood, 152 Mass. 529 (1890);
Colburn v. Groton, 66 N. H. 151 (1889) ; Peo-
ple v Cassidy. 14 N. Y. Suppl. 349 (1891).
29. 585 et seq.
30. 590.
31. 592 et seq.
32. State v Brooks, 220 Mo. 74, 119 S. W.
353 (1909).
33. R. v. Mansfield, 14 Cox Cr. 639 (1881).
34. " The reason for the rule excluding in-
voluntary confession is not based on the
thought that truth thus obtained would not
be acceptable, but because confessions thus
obtained are unreliable." State v. Novak,
109 Iowa 717, 79 N W. 465 (1899).
35. Stephen v State, 11 Ga 225 (1852).
36. Fear inspired by other causes than
threats of those in authority will not consti-
tute a falsifying inducement. Com v. Smith,
119 Mass. 305 (1876). It may constitute
duress 1558 et seq
451
HOPE AND FEAR.
585, 586
duced by it, the fear in question must Appear to have been an alanniiiy ingredi-
ent added to the natural effect of the accusation, 37 arrest for crime/''* and
normal apprehension of punishment. 39
585. Misleading Inducements; Hope and Fear; How Mental State is Estab-
lished; Subjective Considerations. 4 " To decide this issue it is necessary to de-
termine the mental state of the accused. Such an inquiry will divide itself,
roughly, into three main lines, (a) A consideration of the resisting- power of
the declarant's mind, (b) Examination of the kind and strength of pressure
brought to bear upon it. (c) What administrative or procedural assumptions
may properly be made as to the continuance of any mental state once shown to
exist.
The investigation must examine the mental capacity 41 of the accused and
influences on children 42 will be more carefully scanned than on adults and so
of feeble-minded persons 43 or those made insane through crime 44 or in-
toxicated persons 40 or those affected by sleep or wounds or pain. 40
586. [Misleading Inducements]; Objective Considerations; Hope. 47 The
inducement held out to the accused which will invalidate his confession may
be of any nature so long as material, 48 though vague, 40 but any mere sugges-
37. Com. v. Mitchell, 117 Mass. 431 (1875).
38. Com v. Smith. 119 Mass. 305 ( 1876).
39. Com. v. Preeee, 140 Mass. 276. 5 X. E.
494 (1885); People v. Thomas, 3 Park. Cr.
(X. Y.) 256 (1855); Honeycutt v. State, 8
Baxt. (Tenn .) 371 (1875); State v. Coella,
3 Wash. 99, 28 Pac 28 (1891).
40. 2 Chamberlayne, Evidence, 1494
41. The consideration will necessarily affect
the weight of the declaration Williams v.
State. fi9 Ark. 599, 65 S. W. 103 (1901):
People v. Miller, 135 Cal. 69, 67 Pac. 12
( 1901 ) ; Flagg v. People, 40 Mich. 706 ( 1879) .
42. Hoober v State, 81 Ala. 51, 1 So 574
( 1886) : State v. Mason, 4 Idaho 543, 43 Pac.
63 (1895).
43. Peck v. State (Ala. 1906). 41 So. 759.
44. ' Public policy forbids that confessions
should be used in evidence against the pris-
oner which are drawn from him by appliances
of this nature, brought to bear upon his mind
by those who have authority over him, and
when it may be supposed bis mental agita-
tion unfits him to resist their influence, how-
ever slight they may be." State v. York, 37
X H. 181. 184 (1858).
45. Com. v. Howe. 9 C.ray (Mass.) 110
(1857).
In vino veritas. The probative force of a
statement induced bv the use of intoxicants
is not materially diminished where the only
effect observed is the loosening of the tongue
Clark v. State, 8 Humphr (Tenn.) 671, 676
( 1848 ) . See also, Jefferds v. People ( Supm
Ct. Gen. T.). 5 Park. Crim. (X. Y .) 522. 549
(1862). "Drunken men sometimes reveal
truths which they conceal when sober "
Shannon v. Swanson, 109 111 App. 274, 276
(1902), per Dibell, J.
46. Isler v Dewey, 75 N. C. 466 (1876).
Effect of pain upon trustworthiness. In
connection with similar statements by a de-
clarant who is, at the time, in physical pain,
the effect of the infirmative consideration has
received judicial attention. Thus the state-
ments of one suffering severely from the ef-
fects of recent bodily injuries have received
scant attention from the courts when offered
as admissions of his own negligence in the
matter Taylor v. General Ace. Assur. Corp.,
208 Pa. St. 439, 57 Atl. 830 (1904)
47. 2 Chamberlayne, Evidence, 1495-
1502.
48. Com v. Corcoran, 182 Mass. 465, 65
X. E 821 (1903).
49. Green v. State. 88 Ga. 516. 15 S. E.
10. 30 Am. St. Rep. 167 (1891); Gates v.
People. 14 Til. 433 (18531 : Com v. Taylor, 5
Cush. 605 (1850) (use his influence in pris-
oner's favor).
587, r>88 CONFESSIONS. 452
tion as to the general desirability of confession is not sufficient to show the
influence of hope. 50 Among the more common misleading inducements held
out are the hope of averting or delaying punishment 51 or the discontinuance of
the prweedings against him, 52 the hope of pardon. 5 * or the mitigating of the
punishment 54 or an offer of a pecuniary reward for a confession. 55
587. [Misleading Inducements] ; Assumption of Continuance. 56 The pre-
siding judge may properly invoke, in aid of the procedural rule, excluding
" involuntary ' confessions, the allied administrative power, of judicial as-
sumption, frequently referred to as a presumption of law.
It may accordingly be assumed by him that a state of mental feeling in a
criminal defendant once established continues to operate, for a reasonable time,
unless and until some change in respect to it is affirmatively shown to have
taken place. 57 To prove this fact of change, clear and convincing evidence 58
will be required. Should it be made, in any case, affirmatively to appear that
by reason of the occurrence of subsequent events the inducements no longer
continued to operate on the mind of the declarant at the time of the making
of the statement, his declaration will be received in evidence, 59 notwithstanding
the existence of the previous inducements.
588. [Misleading Inducements] ; Physical or Mental Discomfort. " Where
the judgment has simply been misled by the desire to escape a threatened evil
state, physical or mental, the endurance of which is regarded as a possible
alternative to confession, the declaration must be regarded as voluntary and
properly admissible under suitable instructions from the court. Should the
threatened danger of physical violence or mental anguish be so immediate and
50. Steele v State, 83 Ala. 20, 3 So. 547 fess has been held, when made by one in
(1887) ; State v. Grover, 96 Me. 363, 52 Atl. authority, to exclude the confession. Harvey
757 (1902) (no worse off in case of confes- v. State (Miss. 1896), 20 So. 837: State v.
eion) ; State v. Bradford, 156 Mo 91, 56 S. W. Drake, 113 X. C 624, 626, 18 S. E. 166 1 1893)
898 (1900). 55. State v. Wooley, 215 Mo. 620, 115 S. W.
51. State v. Wooley, 215 Mo. 620, 115 S. 417 (1908).
\V. 417 (1908). The requirement has been added that the
52. Austine v. People, 51 111. 238 (1869). reward must appear in some affirmative way,
A subsequent intimation by one in author- to have influenced, if not induced, the confes
ity, given prior to the making of the confes sion. State v. Wentworth, 37 N H. 219
sion, that the proceedings must nevertheless ( 1 858 ) .
continue has been held to nullify the mental 56. 2 Chamberlayne. Evidence. 1503-
effect of the prior promise. Ward v. People, 1508.
3 Hill (X. Y) 395 (1842). 57. People y Stewart, 75 Mich. 21. 42 N.
53. Beggarly v State, 8 Baxt. 520, 526 W. 662 (18S9); State v. Guild, 10 X. J. L.
(1875); State v Carr, 37 Vt 191 (1S64). 163. IS Am. Dec 404 (1828).
54. People v. Johnson, 41 Cat 453 i!871) . 58. McGlothlin v. State, 2 Coldw. (Tenn.)
State v. Jay, 116 Iowa 264. 89 X W 1070 223 (1865); Thompson v. Com., 20 Gratt.
(1902) : Com v. Curtis, !>7 Mass. . "7 i 1S67) : ( Va ) 724 (1870).
State v Smith. 72 Miss. 420, 18 So. 4S2 59. People v Markinder. 29 X. Y Suppl.
(189.1). 842. 80 TTun 40 (1894) ; State v. Gregory, 50
There need be no promise. Hazarding a N. C. 315 (1858).
mere surmise that it might be better to con- 60. 2 Chamberlayne, Evidence, 1509.
453 PAIX AND THKEATS. 589, 590
pressing as fairly to overpower the will to the making of an indicated state-
ment, the latter may properly be regarded as a result of duress, not the act of
the declarant, but rather that of those applying force and consequently inad-
missible. It will be significant, for example, that the accused was solitary
and in darkness; 61 that he had previously been placed in irons, 02 chained,"' 5
or subjected to other physical pain.* 54 In short, any facts calculated to cause
physical pain or mental alarm, e.g., being bitten by dogs while defenceless
against their attacks, 65 having one's head placed in the noose of a rope,' ;0
and the like, must be carefully considered, both singly and in combina-
tion with other facts, in determining to what extent, if any, the will of the
declarant was controlled rather than misled.
589. [Misleading Inducements] ; Pain. 07 Prominent among considerations
affecting the trustworthiness, as " voluntary," of a confession, is the actual or
prospective infliction of pain. It may, of course, happen that the physical
suffering is so direct and overwhelming in its operation as to constrain the
will of the declarant and amount to duress. 68 Where, for example, a master
is shown, in the early cases to have flogged his slave in order to extort a con-
fession of guilt, 69 the statement might well have been regarded as obtained by
duress.
590. [Misleading Inducements] ; Threat^. 70 A threat, in and of itself, so
long as its fulfilment is strictly in futuro, can seldom, in case of a mind of
ordinary firmness, constitute duress. A threat of some injury to body or
mind has, however, very naturally, been deemed an important factor to be con-
sidered in deciding how far the declaration made under its influence is trust-
worthy.' 1 And the same rule has been held to apply to a threat of mental
suffering. 72 A? a matter of authority, it is held that this powerful induce-
61. State v McCullum. 18 Wash. 394, 51 71. 1, Beckman v. State. 100 Ala. 15, 17.
Pac. 1044 (ISO? I. 14 So. 859 (1893) : Joe v State, 38 Ala. 422
62. U S. v Xardello, 4 Mackey (D. C ) 503 (1863).
(1886) 72. State v Brittain, 117 X. C. 783. 23 S.
63. Young v. State, 68 Ala 569 (1881): E. 433 (1895) t by husband to abandon wife) .
State v George, 50 X. C 233 (1858). A threat to put the accused in the "dark
64. Ammons v. State. 80 Miss. 592. 32 So. room " of the jail has been regarded as rea-
9 (1902) (use of "sweat box" room eight sonablv calculated to induce a false accusa-
feet by six feet); State v. McCullum, IS tion and the statement has accordingly been
Wash. 394. 51 Pac. 1044 (1897) (dark cell). rejected. People v. Kankin. 2 Wheel. Cr.
65. Simon v. State. 37 Miss 288 (1859). i X. Y ) 467 .1807).
66. State v. Young, 52 La. Ann 478. 27 So. The question of admissibility is largely
50 (1900K one of degree. Thus the threat of a medi-
67. 2 Chamherlayne, Evidence. 1510. cal man to examine the body of a female de-
68. 602 et seg. fendant accused of concealing a new born
69. Brister v. State, 26 Ala. 107, 129 child is not deemed a threat invalidating her
(1855): Van Buren v. State. 24 Miss. 512 confession. Cain's Case, 1 Crawf. & D 37
(1852) : Hector v. State. 2 Mo 166 (1829). . 1839). At the same time the tbreat made
70. 2 Chamberlayne, Evidence, 1511- by a constable to search the house unless in-
1515 formed of the whereabouts of the child has
591 CONFESSIONS. 454
ment to confession will not invalidate the statement unless, under all the cir-
cumstances, it may reasonably be inferred that it undermined the nerve and
judgment of the declarant to an extent which has led him to misrepresent the
truth. 73
Thus the confession may be invalidated by a threat of punishment for the
crime unless confession be made 74 or by the use of firearms in a threatening
way. 75 The confession is not however affected by the use of threats not con-
nected with the fate of the accused in the pending proceedings 70 as connected
with the treatment of the accused during the trial 7 ~ when concerning independ-
ent matters not connected with the trial at all.' 8
Threats made after the confession can have no effect on it and do not in-
validate it. 79
591. [Misleading Inducements] ; Moral or Religious. 80 Proof that an in-
criminating statement was made by one accused of crime under the influence
of a moral or religious inducement to make a statement, is in reality a guar-
anty of its truth, rather than any real impairment of its probative force. 81
Should the sole inducement for the confession be a desire by the declarant to
follow the precepts of moral obligation, or to gain a spiritual advancement 82
as by obliging a third person, 83 the existence of such an inducement does not
affect the validity of the confession. 84
There is much conflict in the cases as to whether a mere exhortation or
suggestion to tell the truth contains such an implied threat as to make the con-
been held to exclude the statement of the N. C. 491 (1876); Rex v. Lloyd, 6 C. & P.
mother made in consequence of the officer's 393, 25 E. C. L. 454 (1834) ; Hunt v. State,
announcement. Cain's Case, 1 Crawf. & D. 135 Ala. 1, 33 So. 329 (1902).
37 (1839). 78. Com v. Howe, 2 Allen (Mass.) 159
73. State v. Freeman, 12 Ind. 100 (1859); (1861).
Maxwell v. State (Miss. 1906), 40 So. 615 79. Kollenberger v. People, 9 Colo. 233. 11
(" might get his neck broken "). Pac. 101 (1886); Simpson v. State, 4
It is necessary that the threats or promises Humphr (Tenn.) 456 (1844); Geimsinger v.
should be "such as to alTord a reasonable State (Tex. Cr App. 1901), 69 S. W. 583;
presumption that the defendant's answers State v Jenkins. 2 Tyler (Vt.) 377 il803).
were influenced." Com. v. Myers, 160 Mass. 80. 2 Chamberlayne, Evidence, 1516-
530 (1894). 1520.
74. State v. Albert, 50 La. Ann. 481, 23 81. Com. v Drake, 15 Mass 161 (1818)
So 609 (1898) (sheriff) (confession to fellow church members) .
Great excitement on the part of the ac- 82. State v Potter, 18 Conn. 178 (1846);
cused when arrested is no ground for exclud- State v. Harman, 3 Harr i Del ) 567 (1842) -.
ing a confession People v. ( okahnour, 120 1? v. Sloeman, 6 Cox Cr 245 (1853) (avoid-
Cal. 253. .V2 Pac. 585 (1898); Balls v. State ing sin): K. v. Hewett, Carr. & M. 534
(Tex. Cr App. 1897), 40 S. W. 801. (1*42) i obtaining forgiveness)
75. State v. Albert, 50 La Ann. 481, 23 83 Shifflet's Case. 14 Hratt. 665 (1858)
So 60!) i IS9S) (sheriff). (relieving mother of suspicion) ; R. v. Hodg
76. State v. CJrant, 22 Me. 174 (1842) son. 1 Lew Cr. C. 103 (1827) (mistress)
(escape of brother) 84. Com. v. Xott. 13. r > Mass. 269 (1883):
77 R. v. Lloyd, 6 C. & P 303 (1834) (al- People v Kennedy, 159 N. Y. 346, 54 N. E,
lowing prisoner to see his wife): State v. 51 (1899).
Tatro, 50 Vt. 483 (1878) ; State v. Cruse, 74
455 PERSONS IN AUTIIOKITY. 5'J^
fession inadmissible. These all depend on the facts of each case. The state-
ment to one accused of crime that he would better tell the truth may 85 or may
not 86 be a threat depending on the circumstances under which it is uttered.
The same considerations apply to a statement that the accused " had better
confess." 8T
Fear of Death. The fear of impending death has no tendency to impair
the trustworthiness of a confession. 88
592. [Misleading Inducements] ; Who are " Persons in Authority." 89
Persons in authority, 4 * within the meaning of the procedural rule now under
consideration, are such as are legally entitled to control the liberty of the ac-
cused, to decide as to what shall be done with the defendant or, in other re-
spects, to direct the course of the criminal proceedings. 91 Authority in this
connection may be delegated expressly or by implication. 92 The term u person
in authority " may therefore, extend, so far as to designate any one who acts
in the presence of a person clothed with legal authority, under color of his
power in the matter, without contradiction or rebuke from the latter. <<(J The
procedural rule under examination goes so far as to provide that when a con-
fession has been made by one to whom threats or promises have been addressed
by such a person in authority that it will be judicially assumed, in the absence
of evidence to the contrary, that the confession was made in pursuance of the
inducement. 94 It is not sufficient that the person extending a misleading in-
ducement should have been believed, reasonably and necessarily, to be a person
in authority. He must, actually and legally, have been a person in authority.
The mere fact that the person who induces the confession is an officer is not
enough to bar it ; he must be connected with the prosecution and have authority
by virtue of that relation. 95 The assent of the prosecuting officer to the in-
85. People v Silvers, 6 Cal App 69, 92 90. State v Spaugh, 200 Mo. 571, 98 S. W.
Pac. 506 (1907). See also, Biscoe v State. 55 (1906).
67 Md. 6 (1887) ; Com. v. Myers, 160 Mass. 91. R. v Stacey, 14 Q. B. 789, 14 Jur. 549
530 (1894); Com. v. Preeee. 140 Mass 277, (1850).
278, 5 X. E. 494 (1885) ; Com. v. Xott, 135 92. R. v Garner, 2 C. & M. 920. 3 Cox. C.
Mass. 269 (18831 C. 175, 1 Den. C. C 320, 12 Jur. 944, 18 L.
86. \ew York. People v. Randazzio, 194 J. M. C 1, 3 New Sess. Cas. 329, F & M. 7,
N. Y 147, 87 X. E. 112 (1909). 61 E C L. 920 (1848).
87. Statement admitted. State v. Vey (S. 93. Morehead v State, 9 Humphr (Tenn.)
D. 1908), 114 X. \V. 719. 635 (1849); R. v. Millen, 3 Cox C. C. 507
Statement excluded. State v Brockman, (1849); R. v Laugher. 2 C. & K 225, 2
46 Mo. 569 (1870); R. v. Coley, 10 Cox Cr. Cox C C. 134. 61 E C L. 225 (1846). And
536 (186S) (constal)le^ : Mitchell v. State see Johnson v. State. 76 Ga 76 (1885K
(Miss. 1898), 24 So 312: People v Ward, 15 94. Green v. State. 8 Ga. f>16. 15 S E. 10,
Wend. (X. Y ) 231 (1836T 30 Am St. Rep 167 '1891); Com. v. Myers,
88. State v. Gorham, 67 Vt. 365 (1894) 160 Ma .-,30. 36 X E. 48 dS>4)
(effects of poison). 95. Beggarly v. State, 8 Baxt. 520 (1875) ;
89.2 Chamberlayne, Evidence, 1521- Com. v. Smith, 10 Gratt. (A) 734 <1853) ;
1529 I'. S v Stone, 8 Fed. Rep. 254, 262 (1881),
per Hammond, J ; R v. Moore, 2 Den. 522,
593
CONFESSIONS.
450
ducements may be implied, 96 as where made in his presence 97 or where he
assents to the presence of the person who makes the threats or other induce-
ment in the prisoner's cell 98 at an unusual time. 99 However the mere fact
that the statement was secured by the public prosecutor is not of itself enough
to make it incompetent. 1 Persons in authority include the committing magis-
trate 2 but not in most jurisdictions the injured party or private prosecutor. 3
Bystanders 4 or friends 5 or fellow-prisoners 6 are not persons in authority
though their statements may serve to disqualify when made in the presence
of one in authority or by his implied assent. 7
593. [Misleading Inducements] ; Effect of Arrest. 8 The mere fact that the
incriminating statement is made while the declarant is under arrest, 9 or is in
the hand of the sheriff 10 or police officer n is not, of necessity, sufficient to
exclude his statement. Even should the restraint imposed upon the declarant
go so far that he is not only actually in prison, 12 but is also tied hand and
96. State v. Vaigneur, 5 Rich. (S. C.) 391,
400 (1852).
97. State v. Sherman (Mont. 1907), 90 Pac.
981.
98. Johnson v. State, 61 Ga. 305 (1878)
(confession at jail).
99. " None of these persons was the officer
in charge; but their admission to the cell, at
such an unreasonable hour carried with it an
implication of the officer's consent to their
mission, and respondent could scarcely fail to
be impressed that their assurances were made
with full authority." People v. Wolcott, 51
Mich. 612 (1883).
1. State v. Stibbens, 188 Mo. 387, 87 S. W.
460 (1905).
2. Austine v. People. 51 111. 236 (1869):'
U. S. v. Cooper, 25 Fed. Cas. Xo. 14,8(54
(1857) ; R. v. Clewes, 4 C. & P. 221, 19 E.
C. L. 485 (1830).
3. People v. Piner (Cal. App. 1909). 10.1
Pac. 780; Ward v. People. 3 Hill ( N T . Y.)
395 (1842); 1 Whart. ('rim. L. (7th ed.).
092, 680.
Whatever the authority of the injured
party to promise immunity to the accused, a
subsequent retraction by the arresting officer
of such a promise renders the declarant's
confession thereafter competent. \Yard v.
People. 3 11 ill ( X. Y.) 395 (1842).
4. State v. Darnell, 1 Houst. Cr. C. (Del.)
322 11870); R. v. Gibbons. 1 C. & P. 97
(1823).
5. State v. Potter, 18 Conn. 178 (1864):
State v. Caldwell, 50 La. Ann'. 66fi. 23 So.
869 (1898); State v. Grant, 22 Me. 171
(1842) ; State v. Garrick, 16 Nev. 128 (1881)
( bondsmen ) .
6. R. v. Shaw, 6 C. & P. 372 (1823). See,
contra, Freeman v. Brewster (Ga. 1894), 21
S. E. 165.
7. R. v. Millen, 3 Cox Cr. C. 507 (1849).
But see, contra, R. v. Parker, 8 Cox Cr. 465
(1861). Inducements offered by civilians,
see note, Bender ed., 195 X. Y. 224.
8. 2 Chamberlayne, Evidence, 1530-
1536.
9. Com. v. Devaney, 182' Mass. 33, 64 X. E.
402 (1902) ; People v. Egnor, 175 X. Y. 419,
67 X. E. 906 (1903); State v. McDaniel, 39
Or. 161, 65 Pac. 520 (1901).
10. Sands v. State, 80 Ala. 201 (1885);
Republic v. Hang Chong, 10 Hawaii 94
(1895) ; Spiers v. State (Texas Cr. App.), 69
S. W. 533 (1902).
11. R. v. Cheverton, 2 F. & F. 833 (1862).
Individual judges have even doubted the cred-
ibility of confessions testified to by police of-
ficers in cases where sucb evidence was neces-
sary to warrant a conviction. R. v. Thomp-
son, 13 Cox Cr. 182 (1876), per Cave. J. See
also. Lambe's Case, 2 Leach Cr. L. (3d ed.)
552 (1791), per Grose, J.
12. Calif orni-a. People v. Siemson, 95 Pac.
863 I 1908).
Florida. Green v. State. 40 Fla. 191, 23
So. 851 (1898).
Ceorf/ln. Hilhurn v. State, 121 Ga. 344, 49
S. E. 318 (1904) (a nepro in a calaboose sur-
rounded by white men).
Indiana. State v. Laughlin, 84 N. E. 756
(1908).
457
ARREST.
593
foot, 13 handcuffed, 14 chained, 15 placed in the stocks 16 or otherwise subjected
to physical discomfort no necessary rejection of the declaration is involved.
That the prisoner is laboring, at the time of making the statement, under
strong excitement J ' is a matter of little importance. Xor is it of consequence
that in conversation with the accused his guilt was assumed by all persons
present. 18 The confession may still be voluntary where the mind or will of
the accused is not forced; as in duress, to the making of any particular state-
ment, 19 or where, although apparently induced by one of the parties who con-
ducted the prisoner to gaol, the acts were calculated to excite, not fear of tem-
poral punishment, but horror at the recollection of the crime. 20
The circumstance that the accused is under arrest is however to be consid-
ered in deciding whether the confession was voluntary as the arrest may well
have the effect of cowing the accused 21 even where the arrest is invalid, 22 al-
though there is some authority for rejecting all confessions made by a person
under arrest, 23 and the statutes frequently provide that the officer must warn
the accused of his rights before questioning him. 24 This warning should
Louisiana. State v. Chambers, 45 La. Ann.
36, 37, 11 So. 944 (1893).
Massachusetts. Com. v. Cuffee, 108 Mass.
287 (1871). Fact that one was under arrest
outside the state without extradition papers
does not render confession inadmissible, see
note, Bender ed., 18 X. Y. 9.
13. Franklin v. State, 28 Ala. 9 (1856);
Austin v. State, 14 Ark. 555 (1854) ; State v.
Patterson, 73 Mo. 695 (1881); State v.
Rogers, 112 X. C. 874 (1893).
14. Dunmore v. State (Miss. 1905), 39 So.
69; Sparf v. U. S., 156 U. S. 51 (1895).
15. State v. Whitfield, 109 X. C. 876, 13
S. E. 726 (1891).
16. State v. Xelson, 3 La. Ann. 497 (1848).
17. State v. Pamelia, 122 La.' 207, 47 So.
508 (1908).
18. State v. Turner, 122 La, 371, 47 So.
685 (1908).
19. State v. Auguste, 50 La. Ann. 488, 23
So. 612 (1898). But should this physical
discomfort amount to duress, the confession
so obtained will be rejected. Hoober v. State,
81 Ala. 51, 1 So. 574 (1886).
20. R. v. Gibney, Jebb. Cr. C. 15 (1822).
21. Hendrickson v. People, 10 X. Y. 33
(1854). See also, Wheater's Case, 2 Moody
Cr. C. 4o, 2 Lew. Cr. C. 157 (1838). This
important line of reasoning is excellently ex-
pressed in a dissenting opinion rendered in an
Irish case: "It is manifest to every one's
experience that from the moment a person
feels himself in custody on a criminal charge,
his mental condition undergoes a very re-
markable change, and he naturally becomes
much more accessible to every influence that
addresses itself either to his hopes or fears."
R. v. Johnston, 15 Ir. C. L., 60, 83 (1864),
per Hayes, J.
Minors under arrest. For much the same
reason and in an especial degree care will be
taken in giving due weight to this intensi-
fied amenability to suggestion in case of con-
fessions made by minors, while under arrest.
Burton v. State, 107 Ala. 108, 18 So. 284
(1895) (boy of 14); Com. v. Preece, 140
Mass. 270, 5 X. E. 494 (1885).
22. California. People v. Remirez, 56 Cal.
533 (1880).
Iowa. State v. Wescott, 104 X. W. 341
(1905).
23. Layton v. State (Tex. Cr. App. 1908),
107 S. W. 819. If, however, the declarant is
not aware of being under restraint, no reason
exists for excluding his statement. Connell
v. State (Tex. Cr. 1903), 75 S. W. 512.
24. Com. v. Willis, 223 Pa. 576, 72 All. 857
(1909); Yancy v. State (Tex. Cr. App.
1903), 76 S. W. 571. An interval of six or
seven hours may not render a warning inoper-
ative in securing admissibility. Johnson v.
State (Tex. Cr. App. 1905), 84 S. W. 824.
.A'eic York. Balbo v. People, 80 X. Y. 484
(1880).
England. Rex v. Thornton, 1 Moody C. C.
27 (1824). Arrest in another state without
a warrant does not exclude a confession ob-
594, 595 CONFESSIONS. 458
usually take the form of telling the accused that he will gain nothing by con-
fessing and that what he says will be used against him.-
594. [Misleading Inducements] ; Effect of Suspicion. 20 If the fact of a
present arrest is not sufficient to exclude an incriminating statement, a fortiori,
a mere suspicion of having committed the offense does not warrant its exclu-
sion. 1 ' 7 It follows naturally, moreover, that the statutory warning or caution
as to the effect of incriminating statements which is required as a preliminary
to the admissibility of confessions made by persons under arrest 28 does not
apply to those who are merely suspected of having committed the crime in
question. 2 "
595. [Misleading Inducements] ; Deception. 30 The rule of procedure which
rejects so called vk involuntary " confessions induced by threats or promises
by those in authority is based entirely upon an assumed ground of public policy.
In reality, like other rules of procedure, it is practically an instance of sub-
stantive law controlling the normal exercise of the function of judicial admin-
ist ration. 31 As at present conducted it proceeds upon no sense of fairness to
the prisoner and even, as has been suggested, 32 frequently operates against him
by substituting private, irresponsible investigation for responsible official in-
quiry/" The rule assumes that those in authority over legal criminal proceed-
ings ought, in the public interest, to refrain from placing pressure upon the
free will of their prisoners. What injury he may suffer at the hands of pri-
vate persons is none of its concern. So long as the accused is not influenced by
a person in authority in certain specified ways he may be deceived, 'flattered,
wheedled, tricked, betrayed into a perfectly admissible confession. 34
Any impairment of logical force to which the circumstances give rise may
properly be brought to the attention of the jury. Should the court feel that
the probative force of the statement has been reduced by the circumstances
under which it was made below the point at which the jury could rationally
act on it, the presiding judge is justified if not required, to reject the evidence.
But this has no connection with the rule of procedure under examination.
The historical development of the rule of procedure at a time in English his-
tained during its continuance. Balho v. Peo- N. E. 121 (1896); Boyett v. State, 26 Tex.
pie, 80 X. Y. 484 (1880). App 689, 9 S W 275 (1886).
25. State v. Church, 199 Mo. 605, 98 S. W. 30. 2 Chamberlayne, Evidence, 1538.
16 ( 1906) ; Com v. Johnson, 217 Pa. St. 77, 31. 72 et seq.
tifi Atl 233 (1907); Salinas v. State (Tex. 32. 592.
IT. App. 1907), 102 S. VV 116; Henderson v. 33. " But for the very reason that those in
State (Tex Cr. App. 1906), 95 S W 131. authority have no right to require a disclos
26. 2 Chamberlayne, Evidence, 1537. ure, those without authority feel justified in
27. People v. Kief, 58 Hun (X Y. ) 337. seeking to worm it out by threats, by ill
II \ Y. Suppl. 926, 12 N. Y. Suppl. 896 treatment, by fraud, by holding out false
<1S90). hopes, by putting forward false pretences 1 '
28. 593. Baldwin, Mod. Pol. Inst., pp. 125 & 126.
29. Com. v. Robinson, 165 Mass. 426, 43 34. Rex v. White, 18 Ont. L. Rep. 640
(1909).
459 INDUCEMENTS; ILLEGALITY. 596, 597
tory when a large proportion of the population was in revolt against government
and urgently needed the privilege of silence for its protection is shown in this
significant circumstance that only as against authority, judicial or official, is
the keen sense of tenderness for good faith to the prisoner in the slightest
degree manifested.
The confession obtained by one not in authority may have been induced by
a promise of secrecy 3r> or by treachery 3ti or by impersonating another. 37 It
may be obtained by any sort of unfair treatment 38 as by an eavesdropper 3S
or by assuming the guilt of the accused 40 even by a person in authority where
no hope or fear is held out.
596. [Misleading Inducements] ; Illegality. 41 The rejection of a confes-
sion, if in itself reliable and trustworthy, merely because obtained by means of
an illegal violation of the prisoner's privilege against compulsory self-iucrimi-
nation is entirely without support in legal analogy. 42 The confession, viewed
as extorted by an act of duress, stands in a different position. It is not the
act of the declarant. Accordingly, he is not responsible for it. 43
597. Self -incrimination ; History of Doctrine. 44 The modern rule that the
accused cannot be forced to testify against himself was not a part of the civil
or Roman Law or even of the early English common law under all of which
torture was freely practiced. But when the Stuarts came to the English
throne a long and severe contest against the Crown arose which largely cen-
tered in the courts. Here the power of the Crown was represented by the
judge appointed by the King and the popular cause was upheld by magnifying
the power of the jury. Many of the trials of most importance were political
prosecutions in which the popular side was concerned not with eliciting the
truth but in suppressing it and the lawyers opposing the Crown gradually
35. State v. Novak, 109 Iowa 717, 79 X. 40. Carroll v. State, 23 Ala. 38 (1853);
W. 465 (1899). People v. McGloin, 91 N. Y. 245 (1883) ; Mc-
36. Sanders v. State, 113 Ga. 267, 38 S. E. Clain v. Com., 110 Pa. St. 269, 1 Atl. 45
841 (1901) (opening prisoner's letter) ; Com. (1885) ; K. v. Vernon, 12 Cox Cr. 153 (1872).
v. Goodwin, 186 Pa. 218, 40 Atl. 412 (1898) 41. 2 Chamberlayne, Evidence, 1539.
(retaining prisoner's letter: setting eaves- 42. People v. McMahon, 15 N. Y. 386
droppers to hear a private interview). (1857). "The fact that the arrest was ille-
37. Com. v. Flood, 152 Mass. 529, 25 N. E. gal, has no relevancy, if the confession was
971 (1890) (unite in planning a crime); voluntary." Balbo v. People, 80 N. Y. 484
Price v. State, 18 Ohio St. 418 (1868) (con- (1880).
fession of accomplice) : Fife v. Com., 29 Pa. 43. A conviction for illegally transporting
435 (1857) (accomplice confessed) . liquor will l>e set aside where it was ob-
38. Telling a witness who is confessing to tained by illegally searching the person of the
having shot the deceased that he had missed defendant and taking from him forcibly the
him is not such inducement as makes the con- key to his trunk and opening it and taking
fession inadmissible. Lindsay v. State, 66 from it the liquor which he was charged with
Fla. 341, 63 So. 832, 50 L. R. A. (N. S.) transporting. Blacksburg v. Beam, 104 S. C.
1077 (1913). 14. 88 S. E. 441, L. R. A. 1916 E 714 (1916)
39. Woolfolk v State, 85 Ga. 69, 99 (1890) : and note citing cases contra
Com. v Goodwin, 186 Pa. 218, 40 Atl. 412 44. 2 Chamberlayne, Evidence, 1540-
(1898). 1544.
598-600 v CONFESSIONS. 460
established the doctrine that no accused person could be forced to testify
against himself. This principle seems not to be of any aid whatever in the
procuring of justice but was early adopted in this country as a protection
against the fancied danger of unjust prosecutions by appointees of the King.
It seems to have no place in a democracy but it is still held in the highest re-
gard as one of the rights of the people.
598. [Self-incrimination; "Nemo tenetur seipsum accusare "] Present Rule
Stated. 45 Under this motto, or maxim, a witness may decline, in any pro-
ceeding, civil or criminal, to answer a question which tends either directly to
criminate him or which may indirectly produce such an effect. 40 Certain con-
ditions are however to be noted. For example, the danger apprehended by
the witness must be real and not fanciful. 47 The answer must expose the
speaker to a criminal prosecution rather than simply establish a civil liability.
599. [Self-incrimination] ; Procedure and Reason. 48 Little but confusion
can result from attempting to assign a purely logical basis for the procedural
rule which rejects as involuntary confessions obtained in violation of the
privilege against self-incrimination or of the extension of the principle of the
privelege into cases involving the use of misleading inducements by persons
in authority.
It would seem fair to conclude that where the confession is judicial, i.e., is
made by the accused in court, that the whole matter of rejection is nothing
with which confession, as a matter of evidence, has primarily anything what-
ever to do. It is determined simply by the procedural rules framed by the
substantive law as to the matter of compulsory self-incrimination under legal
process. Where a confession has been reached by compulsion which does not
amount to duress, and the declarant enjoys no procedural - privilege against
self-incrimination, the admissibility of the statement is practically unques-
tioned.
600. [Self-incrimination] ; Knowledge and Waiver. 49 There is much con-
45. 2 Chamhcrlayne Evidence, 1544a. right to prescribe the evidence which shall be
46. Adams v. Lloyd, 3 H. & N. 362 (1858) ; received and the effect of that evidence and
Fisher v. Ronalds, 12 C. B. 762 (1852), per that this is not forcing the defendant to tes-
Pollock, C. B.; R. v. Garbett, 1 Den. C. C. tify against himself. People v. Mallon, 222
236 (1847). N. Y. 456 (1018).
47. Reg. v. Boyes, 1 B. & S. 311, 330 (1861). Taking Finger Prints. It is not error to
Privilege from giving self-incriminating tes- admit evidence of finger prints of the defend-
timony, see note, Bender ed., 143 N. Y. 233 ant obtained by asking him to sign his name
Failure to Produce Books. A statute is where an expert in the subject testifies to
constitutional which provides that in a prose- their effect. The law must recognize modern
cution for obtaining credit by false state- scientific inventions. The defendant signed
ments of ability to pay the complaining party his name voluntarily. State v. Cerciello, 86
may demand the right to examine the de- N. J. L. 309, 90 Atl. 1112, 52 L. R. A. (N.
fendant's books and his refusal to produce S.) 1010 (1914).
them shall raise an inference against him. 48. 2 Chamberlayne, Evidence, 1545.
The court holds that the legislature has the 49. 2 Chamberlayne, Evidence, 1546.
461 SELF-INCKIMINATIOX. 601
flict among the authorities as to when the privilege of silence is waived. To
courts impressed with the desirability of fostering the privilege to conceal self-
incriminating facts it has seemed proper to require affirmative proof from the
proponent of the evidence to the effect that the incriminating statement was
voluntarily made after actual knowledge of the privilege. 50 By tribunals which
regard the discovery of truth as the main objective in legal proceedings and
any impediment to that end as in the nature of a public menace, the burden of
evidence is placed upon him who opposes the reception of a confession so in-
duced. The declarant, as a witness is assumed to have been aware of his
right to decline to answer an incriminating question on the ground of privilege.
If, therefore, he has answered without claiming his right to silence, he has
waived it and the statement is voluntary. 51
Where the accused takes the stand voluntarily in his own behalf he may
not stop short in his testimony by omitting and failing to explain incriminating
circumstances and events already in evidence in which he participated and
concerning which he is fully informed without subjecting his silence to the
inferences to be naturally drawn from it. 52
601. [Self-incrimination] ; Preliminary Hearings. 53 The difficulty of de-
ciding whether the statement of one subsequently accused of crime given as a
witness on a preliminary hearing is admissible under the present rule of pro-
cedure becomes not a little complicated by the anomalous position in which the
witness frequently finds himself. Formal criminal proceedings have not as
yet taken final shape. Xo procedural rights are clearly defined. Apart from
any violation of the procedural rules against self-incrimination, little reason is
furnished why the confessions or criminal admissions of one testifying as a
witness before a committing magistrate 54 should not be received as a matter
of course. The same rule applies to hearings before commissioners in bank-
ruptcy ; 55 or to those held by more casual bodies exercising judicial functions,
e.g., investigating committees of the legislature or some branch of a munici-
pality. 56
A volunteer statement at a preliminary hearing may be properly received ;>
50. Kelly v. State, 72 Ala. 244 (1882): 53. 2 Chamberlayne. Evidence, 1547-
Jackson v. State, 56 Miss. 312 (1879). 1557.
51. People v. Taylor, 59 Cal. 650 (1881) : 54. State v. Branham, 13 S. C. 389 (1879) :
State v. Vairneur, 5 Rich. L. 403 (1852). State v. Washing. 36 Wash. 485. 78 Pac. 101!>
52. Caminetti v. United States. 242 U. S. (1904).
470, 61 L. ed. 442, 37 Sup. Ct. Rep. 192, L. 55. Judd v. Gibbs, 3 Gray (Mass.) 539.
R. A. 1917 F (1917). 543 (1855). See also, Faunce v. Gray, 21
Effect of Summons. Evidence is not in- Pick. 245 (1838).
voluntary simply because a defendant is sum- 56. Com. v. Hunton, 168 Mass. 130, 46 X.
moned into court to testify where he an- E. 404 (1897).
swers the questions put to him without ob- 57. Evidence jriven voluntarily in an earlier
jection. Choate v. State, 12 Okla. Crim. action, stands in the same position and is
Rep. 560, 160 Pac. 34, L. R. A. 1917 A 1287 equally competent. Ferrell v. State (Fla.
(1916). 1903), 34 So. 220.
602
CONFESSIONS.
462
whether made under oath or not 58 and even though the declarant was not
warned of his rights 59 or made aware that he was suspected of the crime 60
and even though the witness is forced by summons to be present and is put
on oath. 01 These principles apply to coroner's inquests 02 even where the
witness is present under compulsion and is put under oath, 63 and the same rule
prevails couceiruing fire inquests," 4 former trials 05 or hearings before the
grand jury, 00 though if he has been forced to testify his statement is not ad-
missible. '
602. Duress. 68 A confession, when duress 9 has been applied to the
declarant, becomes absolutely " involuntary.'' It is, therefore, inadmissible in
evidence from the standpoint either of procedure or from that of reason. 70
58. People v. VVeiger, 100 Cal. 352, 357,
34 Pac. 826 (1893); Jackson v. State, 3!)
Ohio St. 37, 39 (1883) ; State v. Hatcher, 29
Or. 309, 44 Pac. 584 (1896).
I'nited States. Wilson v. U. S., 162 U. S.
613, 16 Sup. Ct. 895 (1896).
59. State v. Conrad, 95 N. C. 666 (1886).
The contrary has been held.
A witness must be cautioned where the
statute expressly so requires. State v. Spier,
86 X. C. 600 (1882) ; State v. Needham, 78
N. C. 474 (1878).
60. Com. v. Sego, 125 Mass. 210, 213;
Com. v. Myers, 160 Mass. 530, 532 (1894),
per Morton, J. Where, however, he has been
formally accused there is authority that the
evidence is not admissible. Woolfolk v.
State, 81 Ga. 564, 8 S. E. 724 (1889);
Treachout v. People, 41 N. Y. 7 (1869);
Dickerson v. State, 48 Wis. 288 (1879).
61. Henderson v. State, 95 Ga. 326, 22 S. E.
537 (1895); State v. Briggs, 68 Iowa 416,
424, 27 X. W. 358 (1886) (plea of guilty) ;
State v. Bowe, 61 Me. 174 (1873) (plea of
guilty); People v. Butler, 111 Mich. 483, 69
N. W. 734 (1897).
Com. v. Clark, 130 Pa. St. 641, 650, 18 Atl.
988 (1890); Hardy v. U. S., 186 U. S. 224,
22 Sup. Ct 889 (1902). There is, however,
strong authority to the contrary. State v.
Parker, 132 X. C. 1014, 43 S. E. 830 (1903) ;
State v. Andrews, 35 Or 388, 58 Pac. 765
(1899); State v. Welch, 34 W. Va. 690, 15
S. E. 419 (1892).
62. State v. Van Tassel, 103 Iowa 6, 72
N. W. 497 (1897). See also Daniels v. State,
57 Fla. 1, 48 South 747 (1909) ; 70 L. R. A.
33: Admissibility on trial for murder of
testimony of accused at coroner's inquest.
63. Snyder v. State, 59 Ind. 105 (1877);
State v. Gilman, 51 Me. 206 (1862) ; People
v. Mondon, 103 X. Y. 213, 8 X. E. 496 ( 1886) ;
Williams v. Com., 29 Pa. St. 102, 105
(1857).
64. Com. v. Bradford, 126 Mass. 42 (1878) ;
Com. v. King, 8 Gray 503 (1857); Com. v.
Wesley, 166 Mass. 248, 44 X. E. 228 (1896).
65. Com v. Reynolds, 122 Mass. 455
(1877); McMasters v. State, 83 Miss. 1, 35
So. 302 (1903) (stenographer's minutes);
Carr v. Griffin, 44 X. H. 510 ( 1863) ; Com. v.
Reynolds, 122 Mass. 455 (1877); McMasters
v. State (Miss. 1903), 35 So. 302.
66. People v. Sexton, 132 Cal. 37, 64 Pac.
107 (1901) ; State v. Robinson, 32 Or 43, 48
Pac. 357 (1897); State v. Campbell (Kan.
1906), 85 Pac. 784; State v. Carroll, 85
Iowa 1, 51 X. W. 1159 (1892).
67. State v. Clifford, 86 Iowa 550. 53 X. W T .
299, 41 Am. St. Rep. 518 (1892); People v.
Lauder, 82 Mich. 109, 46 X. W. 956 (1890).
Admissions of guilt made at the trial of an-
other may be admitted in evidence People v.
Mitchell, 94 Cal. 550, 29 Pac. 1106 (1892).
New York. People v. Burt, 64 X. Y. Suppl.
417, 51 App. Div. 106, 15 X. Y. Cr. 43
(1900), though if compelled to speak they are
involuntary and incompetent ; Shoeffler v.
State, 3 Wis. 823 (1854); State v. Clifford.
86 Iowa 550 (1892) (prisoner).
68. 2 Chamberlayne. Evidence, 1558-
1563
69. Phillips v. Henry. 160 Pa St. 24, 25,
28 Atl. 477, 40 Am. St. Rep. 706 (1894) :
Wolff v. Bluhm, 95 Wis. 257, 259, 70 X. W.
73, 60' Am. St. Rep. 115 (1897).
70. People v. Montano (Cal App. 1908),
98 Pac. 871; People v. Perez (Cal. App.
1908). 98 Pac. 870; State v. Carrick, 16 Xev.
120 (1881).
463
FORM.
603
The duress may be mental, as by the use of threats, 71 or physical, by the
infliction of physical pain ~'~ or by the threat or infliction of injury on a person
in the hands of a mob. 73
603. Form of Confessions. 74 The form in which a confession is presented
to a tribunal is immaterial upon the question of its admissibility in evidence.
The conduct of the accused is always admissible in evidence against him 75
and the rules excluding confessions deemed involuntary as influenced by hope
or fear do not apply to evidence of conduct. 70 The admission may take the
forir of silence when an innocent man would naturally speak, as when charged
with the crime. 77 A judicial Ts confession as by a plea of guilty T!) made vol-
71. Hazelrigg v. Donaldson, 2 Mete. (Ky.)
445, 447 (185!)); State v. Wooley, 215 Mo
620, 115 S. W. 417 (1!)08); State v. Rose
lair (Or. 15)10), 109 Pac. 865. A confession
is not competent when made as the result of
a long third degree, the assumption of a domi-
nating and browbeating attitude of the of-
ficers toward the defendant and the employ-
ment of deceptions, threats and intimidations
emphasized with coarse profanity. People v
Borello, 161 Cal. 367, 119 Pac. 500, 37 L.
R. A. (N. S.) 434 (1911).
72. Johnson v. State (Tex. Cr. App. 1906).
97 S. W. 312; Joe v. State, 38 Ala. 422
(1863); Jackson v. State (Tex. Cr. App.
1906), 97 S. W. 312.
73. Trwin v. State, 54 Ga. 39 (1875) : Mil-
ler v. People, 39 111. 457 (1866); State v.
Drake, 82 N. C. 593 (1880).
74. -2 Chamberlayne, Evidence, 1564-
1574.
75. Beery v. U. S., 2 Colo. 186 (1873)
(identifying stolen goods) : Duffy v. People.
26 N. Y. 588 (1863) (offer to compromise a
larceny ) .
76. Michaels v. People. 208 111. 603, 70 X.
E. 747 (1904). See 1475, 1476; State v.
Keeland, 39 Mont. 506, 104 Pac. 513 (1909)
(attempts to bribe officer).
77. Com. v. Trefethen, 157 Mass. 180
(1892); Kelley v. People, 55 N. Y. 565
(1874) ; Sparf v. U. S., 156 U. S. 51 (1895).
Where a husband and wife are together in-
dicted for murder and the wife charges that
the husband forced her to commit the crime
his failure to contradict her cannot be con-
strued as an admission against him and is not
admissible for that purpose. The court re-
marks that the wise husband attempts to
soothe and placate his irate spouse rather
than to question her statements, however
wide of the truth they may be, and the rule
should be made for the average man and not
for the few brave or .foolheardy ones. Hi ley
v. State, 107 Miss. 600, 65 So. 882, L. R. A.
1915 A 1041 (1914). The mere silence of
one accused of crime and his failure to deny
charges made against him in his presence are
not to be construed as admissions made by
him as this contravenes the rule against self-
crimination. Ellis v. State, 8 Okla. Crim
Rep. 522, 128 Pac. 105)5, 43 L. R. A. (N. S.)
811 (1913). "\Vhilethischaracterofproof
is often entitled to but little weight, there is
no rule justifying its entire exclusion. Its
value is to be determined by all the circum-
stances, of which the jury are the peculiar
judges. One person may be so confused or
embarrassed, so completely taken by surprise
by the unexpected and sudden arrest and
charge, as, though ever so innocent, to act in
a manner strongly indicative of guilt. And
yet, another man, cool and self-possessed, may
be able at once to command the entire situa-
tion, and though the most hardened villain,
disarm suspicion and impress those around
with his innocence. All these and other cir-
cumstances are to be considered. But the fact
that he was charged and made no reply or
denial, may properly be shown, the effect
thereof being left to the jury." Wharton,
345, note 6.
78. The distinction between judicial and
extra-judicial confessions is well stated by
the court in State v. Gorman, 54 Mo 526.
79. State v. Branner. 149 X. C. 559, 63
S. E. 169 (1908). There is authority that a
plea of guilty afterwards withdrawn may be
put in evidence although it was entered
through a misunderstanding between counsel.
State v. Carta, 90 Conn. 79. 96 Atl. 411, L.
R. A. 1916 E 634 (1916), and note showing
that the weight of authority is to the con-
trary.
604, 605 CONFESSIONS.- 464
untarily or by testimony in court 80 may be received and the confession may
also be extra-judicial, outside of court proceedings. The confession may be
oral in any form as by question and answer, 81 or it may be written either by
him or by another and signed by him.* 2 Where it is written it must be in-
troduced as the best evidence. 83 So letters 84 or other documents may be used
as admissions.
604. Independent Relevancy. 85 The statement of the defendant in a
criminal prosecution, like any other declaration, may, without conflicting with
the procedural rules regulating confessions, be used in evidence as leading to
other inferences than that the fact is as stated. The assertion may be relevant
independent of its truth or falsity. For example, a confession rejected as
evidence of that which it asserts because " involuntary," may still be received
as constituting a contradictory statement. 86 Thus, should a defendant sign
his name to a paper on file in the cause 87 the prosecution is at perfect liberty
to use the signature as a specimen of his handwriting, though it might not be
available as a confession.
605. Introduction of Confession in the Evidence; Hearing on Voir Dire. 88
Under the earlier English procedure which has been followed and still prevails
in a majority of American courts 89 the burden of evidence is upon the prose-
cution to satisfy the court upon tender of the confession in evidence that it
was voluntarily given ; to the extent, at least, of showing that no threats, prom-
ises or other misleading inducements were held out to the declarant by the
person to whom the confession was made.
The court may at this stage of the proceedings hear at length both the
prosecution and the defendant 90 to determine whether the confession was
really voluntary. 91 The defendant may not only show that the confession was
not voluntary but may also prove that he never made it 92 and the prosecution
80. State v. Sorter, 52 Kan. 531, 34 Pac. 86. Com. v. Tolliver, 119 Mass. 312, 315
1036 (1893). " The statements made by the (1876).
defendant while testifying at a former trial 87. Hunt v. State, 33 Tex. Cr. 252, 26 S.
were competent, either as admissions or for W. 206 (1894) (application for bail).
the purpose of contradicting him. They were 88. 2 Chamberlayne, Evidence, 1576-
voluntary statements, in regard to his con- 1586.
nection with the transaction, and it is imma- 89. People v. Castro, 125 Cal. 521, 58 Pac
terial where or when they were made." Com. 133 (1899).
v. Reynolds, 122 Mass. 454 (1877) United States. Hopt v. Utah, 110 U. S.
81. State v. Peterson, 110 Iowa 647, 82 587, 4 Sup. 202 (1883).
N. W. 329 (1900). 90. Zuckerman v. People, 213 111. 114, 72
82. State v. Berberick, 38 Mont. 423, 100 N. E. 741 (1904).
Pac. 209 (1909) 91. State v. Williams (N"ev. 1909), 102 Pac
83. Cicero v. State, 54 Ga 156 (1875); 974.
Wright v. State, 50 Miss. 332 (1874). 92. Jaynes v. People. 44 Colo 535, 99 Pac.
84. Oakley v. State, 135 Ala. 15, 33 So 325 (1909); Com. v. Howe, 9 Gray (Mass.)
23 (1902). 110 (1857): People v. Fox, 3 N. Y. Suppl.
85. 2 Chamberlayne, Evidence, 1575. 359 (1888).
465 PROVINCE OF JUEY. 606-608
may impeach the evidence of the defendant. 93 The question may in the first
instance be decided by the judge in many jurisdictions. 94
606. [Introduction of Confession into Evidence] ; Hearing of the Jury. y5
Where a confession of guilt is offered, the jury, as a rule, are required to retire
from the court room, while the facts regarding the voluntary nature of the pris-
oner's statement are considered by the court and its admissibility argued by
counsel on fair dire.' M In the absence of statutory regulation to the contrary,
making the matter one of substantive or procedural law, the question as to
whether, and, if so, how far, witnesses bearing upon the voluntary nature of
the confession shall be examined in the presence of the jury, is largely one of
administration. 97
607. [Introduction of Confession into Evidence] ; Leaving Question to the
Jury. 98 As the jury has in the last instance to decide the truth and effect of
evidence as to a confession many courts have turned over to them at once the
hearing of all testimony concerning it. 99 It then becomes the duty of the jury
to determine whether it is voluntary l and if so whether the evidence as to it
is to be believed. 2
608. Probative Force ; Infirmative Considerations. 3 From the standpoint
of reason a confession may be subject to grave infirmative considerations,
among others that it is extremely improbable that a person should accuse
himself of a serious crime. 4 It may have been made from some false hope of
benefit or fear of injury and still be false. 5 The mind of the criminal may be
excited or diseased G or morbid. The confession may be in the nature of an
offer of compromise to the prosecution. 7
93. State v. Staley, 14 Minn. 105 (1867); 98. 2 Chamberlayne, Evidence, 1588,
Sampson v. State, 54 Ala. 241 (1875); State 1590
v. Peter, 14 La. Ann. 521 (1859). See also, 99. Roesel v. State, 62 N. J. L. 216, 41
Com v. Culver, 126 Mass. 464 (1879). Atl 408 (1898); Burdge v. State, 53 Ohio
94. Strickland v. State (Ala. 1907), 44 St. 512, 42 N. E. 594 ( 1896) .
So. 90. 1- Cain v. State, 18 Tex. 387 (1857) ; Com.
Practical Suggestions. The witness who v. Culver, 126 Mass. 464 (1879).
is to testify to a confession should be first 2. Burton v. State, 107 Ala. 1 108, 18 So.
asked to detail the circumstances under which 285 ( 1895)
it was obtained, showing that no force or 3. 2 Chamberlayne, Evidence, 1591-
inducement was used and telling just what 1593.
was said to the declarant and showing if 4. State v. Porter, 32 Or. 135, 49 Pac. 964
possible that he was cautioned that what- (1897).
ever he said might be used against him and 5. Bullock v. State, 65 N. J. L. 557, 47
that he need not answer if he did not wish Atl. 62 (1900) ; People v. McGloin, 91 N. Y.
to do so. 246 (1883).
95. 2 Chamberlayne. Evidence, 15S7. 6. The drunken condition of an accused
96. State v. Gruff. 6S X. J L. 287. 53 Atl. when making a confession unless such drunk -
88 (1902) : Kirk v. Terr., 10 Okl. 46, 60 Pac. enness goes to the extent of mania does not
797 (1900). affect the admissibility in evidence of such
97. State v. Barker (Wash. 1910), 106 Pac. confession but may affect its weight and credi-
133. bility with the jury. Lindsay v. State, 66
609, 610 CONFESSIONS. 466
609. [Probative Force] ; Judicial Confessions. 8 No confession, as a sub-
stitute for evidence, is conclusive. The confessing party is not concluded even
by a judicial statement, final as this may be, in a procedural sense, for the
purposes of the case itself. The defendant who has pleaded guilty in a crim-
inal case may seek to minimize or control the effect of his statement should
it be offered against him on another occasion. He may, for example, show on
such an occasion that he did not then know the nature of the charge against
him to which he was pleading, or did not suppose the plea would be used as a
confession. It is open to him to contend that he is, in point of fact, not guilty
of the offense claimed although he has pleaded guilty to it at another time. 9
610. [Probative Force] ; Corroboration required. 10 It has frequently been
provided, in pursuance of the idea that it is a proper function of substantive
law to control the operations of the reasoning faculty, that a jury should not
act upon the mere confession of the accused, however voluntary. To create a
prima facie case, the confession must be corroborated, 11 unless it is a judicial
confession as by plea of guilty in open court. 12 Corroboration may constitute
any circumstance tending to render the confession more probable ia but the
corroborating fact need not be connected either with the accused or the con-
fession and need not be established beyond a reasonable doubt. 14 The rule as
to corroboratiou is not a rule of evidence but is a rule of procedure. The
fact that a crime has been committed, or the corpus delicti, must be proved but
evidence of it need not precede the confession. 15 In many jurisdictions the
Fla. 341, 63 So. 832, 50 L. R. A. (X. S.) 1077 112 (1909) ; West v. State, 6 Ga. App. 105,
(1913). Where the defendant has confessed 64 S. E. 130 (1909). In an action for divorce
to the crime charged and his. mental capacity on the ground of adultery where the libel-
is in question it is proper to show that he lant testifies to the adultery and there is
had previously made a false confession to evidence of a confession made by the libellee
having committed another crime of which he this is insufficient under the rule that the
was not guilty, to show his mental condition. uncorroborated testimony of one of the partie-t
Shellenberger v. State, 97 Xeb. 498, 150 N. is not enough to obtain a divorce. Garrett
W. 643, L. R. A. 1915 C 1163 (1915). v. Garrett, 86 X. J. Eq. 29.3, 98 Atl. 848.
7. Austine v. People, 51 111. 236, 240 Conviction on accomplice's testimony who
(1869). is accomplice, see note, Bender ed., 26 X. Y.
A threat to bring a civil action may ren- 523.
der a confession of crime so unreliable and 12. People v. Bennett, 37 X\ Y. 117 (1867) :
untrustworthy as to be irrelevant, for pre- State v. Cowan, 29 X. C. 239 (1847).
cisely the same reasons that an offer of com- 13. Com. v. Killion (Mass. 1907), 80 N.
promise is irrelevant. Cropper v. U. S., Morr. E. 222; State v. Guila, 10 X. J. L. 163, IS
(Iowa) 259 (1843). Am. Dec. 404 (1828).
8. 2 Chamberlayne, Evidence, 1594. 14. Evidence in Corroboration of a confes-
9. Murmutt v. State (Tex. Cr. App. 1902), sion is sufficient, if it tends materially to
67 S. W. 508. Riafht to impeach or contra- connect accused with the crime, and need
diet, see note. Bender ed., 187 X. Y. 300. not show the fact beyond a reasonable
10. 2 Chamberlayne, Evidence. 1595- doubt. Douglas v. State, 6 Ga. App. 157,
1601. 64 S. E. 490 (1909).
11. Hubbard v. State (Ark. 1905), 91 S. W. 15. Anthony v. State (Fla. 1902), 32 So.
11; Wilson v. State, 6 Ga. App. 16, 64 S. E. 818.
467 WEIGHT. 611, 612
corpus delicti nmst be established by evidence independent of the confession
itself 16 but circumstantial evidence of the carpus delicti is sufficient. 17
611. [Probative Force]; A Question for the Jury. 1 * A finding by the
judge presiding at the trial to the effect that a confession is admissible, re-
ceives the statement as evidence in the case. He informs the jury that they
may properly consider the probative force, if any, furnished by the confession.
This ruling attaches no element of definite credibility. What probative force
the confession is to have in the minds of the jury is for them to determine. 19
The same facts which have failed to convince the judge that the confession
should be excluded as " involuntary " under the rule of procedure or irrelevant
in point of reason to the existence of the facts which it asseots 20 may suffice to
remove from it, when admitted, all probative force. 21 The defendant has
therefore the right to introduce evidence of such facts 22 and comment upon
them in argument. 23 The voluntary nature of a confession need not be estab-
lished beyond a reasonable doubt but any doubt arising in the minds of the jury
as to the probable effect upon the veracity of the declarant of inducements held
out to him may be considered by them, with all other facts, in deciding whether
there remains in their minds, as the resultant of the whole case, a reasonable
doubt as to the guilt of the accused. 24
612. [Probative Force] ; Judicial Views. 25 Judges are by no means agreed
as to the juridical value of confessions. Courts have treated them as a class,
a species of evidence, about which, as a whole, it was safe to dogmatize.
16. Richardson v. State, 80 Miss. 115, 31 18. 2 Chamberlayne, Evidence, 1602-
So. 544 (1902). Until there is some evidence 1604.
of the corpus delicti there is no foundation 19. State v. Adams (Dl. 1906), 65 Atl.
for the receipt of evidence of confessions. 510: Herndon v. State (Tex. Cr. App. 1907),
State v. Brown, 103 S. C. 437, 88 S. E. 21, 99 S. W. 558. The jurors, being the con-
L. R. A. 1916 D 1295 (1916). The corpus elusive judges of the credibility of witnesses
delicti must be proved outside of the defend- and the weight to be given to their testi-
ant's admissions and for this purpose to mony, may believe or disbelieve any portion
prove embezzlement by a guardian it is not of a confession. Herndon v. State (Tex. Cr.
enough to show the appointment of the guard- App. ( 1907 ) , 1)9 S. W. 658. See also, State v.
ian and his receipt of the funds and his ad- Russo (Del. 0. & T. 1910), 77 Atl. 743.
mission that lie did not have them, but the 20. 605 et seq.
court indicates that a demand and failure to 21. State v. Von Kutzleben (Iowa 1907),
produce them might be enough. Choate v. 113 X. W. 484.
State, 12 Okla. Crim. Rep. 560, 160 Pac. 34, 22. Miller v. State, 94 Ga. 1 (1894); Wil-
L. R. A. 1917 A 1287 (1916). liams v. State, 72 Miss. 117 (1894).
17. Davis v. State (Ala. 1904). 37 So. 676: 23. The result is the same where the Ian-
State v. Banusik (X. J. 1906), 64 Atl. 994; guage of the declarant admits of more than a
State v. Rogoway (Or. 1904). 78 Pac. 987. single meaning. State v. Taylor, 54 S. C.
Evidence of an extra-judicial confession is 174, 32 S. E. 149 (1898); Eckert v. State, 9
circumstantial within the meanine of a stat- Tex. App. 105 (1880) ("shot after").
ute providing that no person shall suffer the 24. Williams v. State, 72 Miss. 117, 16 So.
death penalty on circumstantial evidence 296 (1894).
alone. Damas v. People. Colo. (1917), 163 25. 2 Chamberlayne, Evidence, 1605-
Pac. 289, L. R. A. 1917 D 591. 1608.
613, 614 CONFESSIONS. 468
Upon the one hand, the claim has been freely and enthusiastically made, by
those who must have assumed that all confessions were the reasoned and
deliberate act of the person accused, that such statements are of the first rank
in probative force 26 and, therefore, entitled to the most marked consideration. 27
To other courts, regarding the various infirmative considerations attending
their use, confessions have presented an entirely different forensic aspect.
They are, it is said, to be cautiously received, 2 ** always distrusted 2!> and never
accredited with much probative force. 30 There are, for example, many cases
known where persons have confessed to crimes they did not commit or as in the
case of the witchcraft delusion to crimes which could not have been committed
by anyone. The general rule is that each confession should be weighed by
its own circumstances. 31
613. Specific Admissions. 32 However the fact that the confession itself
as a confession is excluded as being involuntary will not bar out evidence of
independent facts contained in it which are relevant to the issue as admis-
sions. 33 For example, if the accused states that the stolen goods 34 or the
body of the deceased 35 will be found at a certain place evidence of this state-
ment and that investigation showed it to be true is admissible against the
defendant.
614. To Whom Extra judicial Confession is Made. 1 " An extra-judicial con-
fession may properly be made to any person, 37 or collection or body of persons. 38
It is not even necessary that the statement should have been addressed to any
definite individual. It may have taken the form of a prayer. 30 The great
majority of confessions of guilt are naturally received by persons in authority,
upon the arrest of the accused or while he is in custody. 40 Though it is in
connection with confessions so made that the voluntary character of the state-
ment is most carefully scrutinized, 41 no reason exists why the officer should
26. Basye v. State, 45 Neb. 261 (1895); 32. 2 Chamberlayne, Evidence, 1609-
Hopt v. Utah, 110 U. S. 584, 4 Sup. Ct. 202 1614.
( 1883) . 33. State v. Red, 53 Iowa 69 ( 1880) .
27. State v. Brown, 48 Iowa 382 (1878). 34. Johnson v. State, 119 Ga. 257, 45 S. E.
28. Daniels v State, 57 Fla. 1, 48 So. 747 960 (1903).
(1909); Marshall v. State, 32 Fla. 462, 14 35. Gregg v. State. 106 Ala. 44. 17 So. 321
So. 92 (1893); Coney v. State, 90 Ga. 140. (1894) (child): Lowe v. State, 88 Ala. 8
15 S. E. 746 (1892) ; People v. Borgetto, 99 (1889) ; State v. Motley, 7 Rich. (S. C.) 327
Mich. 336, 58 N. W. 328 (1894) (1854).
29. State v. Fields, Peck (Tenn.), 140 36. 2 Chamberlayne, Evidence, 1615.
(1823) ; State v. McDonnell, 32 Vt. 491, 532 37. Speer v. State. 4 Tex. App. 474 (1878).
(I860). 38. Com. v. Drake, 15 Mass. 161 (1818)
30. Keithler v. State, 10 Sm. & M. (Miss.) (church members).
192 (1848) ; People v. Jones, 2 Edw. Sel. Cas. 39. Woolfolk v. State, 85 Ga. 69, 11 S. E.
(N. Y.) 86 (1849). 814 (1890).
31. Hank v. State, 148 Ind. 238, 46 N. E. 40. State v. Simon, 15 La. Ann. 568 (1860).
127, 47 N. E. 465 (1897). 41. State v. Dodson, 14 S. C. 628 (1880) ;
593 et seq.
469 ADMINISTRATION. 615, 616
not testify as to what has been said to him. The prosecuting attorney, 42
committing magistrate 43 or even the trial judge 44 are equally competent as
witnesses to the making of a voluntary confession by one accused of crime.
615. Administrative Detail. 45 As a rule, judicial administration imposes
no limit to the number of confessions which may be received. Where a de-
fendant makes a confession on more than one occasion, each confession may be
separately proved. 40 The scope, moreover, which a confession may cover is
by no means rigidly limited to the res gestce of the crime under investigation.
Jt is no objection to a confession that it relates also to the commission of other
crimes. 47 Xor is the order of proof other than elastic. A confession, for
example, may be introduced at the stage of rebuttal. 48
616. The Evolution of Reason. 49 To a certain extent, the history of the
evolution of the law of confessions is that of most rules in the law of evidence.
As is said elsewhere, 50 the early history of that law from the time when the
jurors ceased to be witnesses 51 down to the close of the sixteenth century was
largely, though decreasingly, one of administration. The judge was accorded
a wide discretion, as part of the executive of the crown for the promotion of
justice in advising jurors as to what they might safely use as evidence in
course of a trial. There were practically no rules, certainly none having the
force of law. 52 At most, the action of the judges in this respect was deter-
mined by the custom, or practice of the various circuits of the king's courts.
The effort was to administer the customs of the realm or other provisions hav-
ing the force of law with legal reason, as that term was then understood, for
the attainment of substantial though, of course, conventionalized, justice.
In respect to confessions, the term being then restricted to judicial confes-
sions by way of pleas of guilty, 53 the administration of humane judges was to
make sure that the prisoner really meant what he said in pleading guilty and
was fully aware of the consequences of his act. In view of the severity of
42. Walker v. State, 136 Ind. 663, 36 X. E. 49. 2 Chamberlayne, Evidence, 1617,
356 (1893); People v. Howes, 81 Mich. 396, 1618.
45 X. W. 961 (1890); State v. Chisenhall. 50. 120.
106 X. C. 676, 11 S. E. 518 (1890). 51. 120.
43. State v. McLaughlin, 44 Iowa 82 52. " These defects in the system of trial in
(1876) ; State v. Monie, 26 La. Ann. 513 the seventeenth century. I own, strike me as
(1874): Wolf v. Com., 30 Gratt. (Va.) 833 being almost less important fhan the utter
(1878). absence which the trials show of any concep-
44. State v. Chambers. 45 La. Ann. 36. 11 tion of the true nature of judicial evidence on
So. 944 (1893). the part of the judges, the counsel and the
45. 2 Chamberlayne, Evidence. 1616. prisoners. The subject is even now imper-
46. Lowe v. State, 125 Ga. 55, 53 S. E. fectly understood, but at that time the study
1038 (1906). of the subject had not begun. I do not think
47. State v. Dalton (Wash. 1906), 86 Pac. any writer of the seventeenth century has
590. anything of importance to say about it."
48. Ince v. State (Ark. 1906), 93 S. W. 65. Stephen, Hist. Crim. Law, p. 399.
' 53. 603.
616
CONFESSIONS.
470
the penal code then in force, the disproportionate punishment frequently
awarded for comparatively unimportant offences and the disabilities under
which the act-used labored, it seemed but just that before the judge should
allow a prisoner, undefended by counsel, without the aid of witnesses, and
hurriedly tried, often with almost indecent haste, to foreclose his last chance of
escape by plea of guilty, he should make sure that the act was a deliberate one
made with full knowledge of its consequences.
The political conditions of the sixteenth century 54 resulted in the crystal-
lization of these tendencies into rules of law which resulted in many cases in
gross miscarriage of justice. 55 Our courts have followed these vicious prece-
dents 56 but the modern tendency is to break away from these strict rules and
to regard confessions on the merits of each case. 57
54. See ante, 582. Social conditions in
the England of that time were such as might
well ground a contention that any induce-
ment, nowever slight, held out to a prisoner
to induce him to confess would tend to lead
him to criminate himself, even falsely. R. v.
Baldry, 2 Den. Cr. C. 445 (1852).
55. Bram v. U. S., 168 U. S. 532, 18 Sup.
183 (1897).
56. State v. Edwards, 126 N. C. 1051, 35
S. E. 540 (1900).
57. State v. Grover, 96 Me. 363, 52 Atl.
757 (1902).
CHAPTER XXII.
FORMER EVIDENCE.
Former evidence, 617.
Administrative attitude of the court. 618.
Adequate necessity, 619.
absence from jurisdiction, 620.
claim of privilege against self-incrimination, 621.
death, 622.
imprisonment, 623.
inability to find, 624.
infamy, 625.
interest, 626.
mental incapacity, 627.
official duty, 628.
physical incapacity, 629.
Former trial, 630.
JTie hearsay rule, 631.
Identity of the issue, 632.
Identity of the parties, 633.
Scope of proof ; extension, 634.
intension; precision in recollection, 635.
Media of proof ; official documents, 636.
unofficial documents; memoranda, 637.
stenographers, 638.
witnesses; independent relevancy, 639.
617. Former Evidence. 1 A final branch or topic in the law of evidence
which continues to exhibit in a marked though waning degree the power of the
procedural or substantive law is that which permits a proponent to submit to
the tribunal, under certain circumstances, the evidence given by a witness at a
former trial. The prevailing rule upon this subject may be stated a? follows.
Whenever it shall be made to appear to the reasonable satisfaction of the trial
judge that a suitable administrative necessity for so doing exists, the pr -
ponent of relevant facts covered by the testimony of a witness upon a former
trial may be permitted to give in evidence, as proof of the facts therein as-
serted, the report, verified under oath, of a duly qualified witness who heard
the original testimony : provided that the issue is substantially the same in
1. 2 Chamberlayne, Evidence, 1619.
471
618, 619 FORMER EVIDENCE. 472
the two actions, that a party against whom the evidence is offered or some
one identified with him in legal interest cross-examined the witness upon the
former occasion concerning the topic on which his evidence is now offered, or,
at least, was afforded a reasonable opportunity for doing so, and that the re-
porting witness should be able Jo state the testimony with satisfactory fullness.
As these procedural requirements are insisted upon by the courts with consid-
erable, though relaxing, strictness, it would appear desirable to consider them
separately and, so far as practicable, in this order.
618. Administrative Attitude of the Court. 2 In the absence of primary
evidence 3 secondary evidence may be introduced by the testimony of a wit-
ness at a former trial 4 if relevant. 5 The opponent has the same rights to
object to it as if the witness were on the stand 6 and he may impeach the witness
by proving that he has contradicted himself ' or in other ways.
619. Adequate Necessity. 8 In order that a party should be able to intro-
duce evidence taken at a former trial, the judge will require that he establish
the necessity 9 for resorting to it. 10 It is only required that the necessity
should be established so far as relates to the particular witness. It is not
essential that the proponent also show that he can prove the fact itself in no
other way. 11 The 'evidence being, in its nature, secondary, i.e., inferior in a
probative point of view, less decisive and convincing than the face to face testi-
mony of the witness himself, 12 the party tendering the less probative proof
must show to the reasonable satisfaction of the judge presiding at the trial
that it is impossible for him to procure the attendance of the witness himself. 13
This may be for one of several reasons. The witness may be dead, insane,
sick or absent from the jurisdiction. The former witness may now refuse to
2. 2 Chamberlayne, Evidence, 1620- trative consideration. Crary v. Sprague, 12
1623 Wend. (X. Y.) 41, 27 Am. Dec. 110 (1834);
3. Doncaster v. Day, 3 Taunt. 262, 12 Rev. Petrie v. Columbia, etc., R. Co., 29 S. C. 303,
Rep. 650 (1810). 317, 7 S. E. 515 (1888).
4. Limitations on scope of rule. The rule 7. Sharp v. Hicks, 94 Ga. 624, 21 S. E.
does not apply in any connection where the 208 (1894).
object of the tender of evidence is merely to 8. 2 Chamberlayne, Evidence, 1624.
enow that the statement was made, not that 9. Lyttle v. Denny, 222 Pa. 395, 20 L. R. A.
it was true. People v. Lem You, 97 Cal. (X. S.) 1027, 71 Atl. 841 (1909) (deposi-
224, 226, 32 Pac. 11 (1893) (perjury). The tion). "The admissibility of this species of
parties may be different, in such a case and evidence depends upon the necessity of the
the issues dissimilar, while the statements case." U. S. v. Macomb, 26 Fed. Cas. No.
may still be admissible. Kutzmeyer v. Ennis, 15,702, p. 1134, 5 McLean 286, 292 (1851),
27 X. J. L. 371 (1859). per Drummond, D. J.
5. Williams v. Smith, 29 R. I. 562, 72 Atl. 10. Wells v. Ins. Co., 187 Pa. 166, 40 Atl.
1093 (1909) (deposition). 802 (1898).
6. Crary v. Sprague, 12 Wend. (X. Y.) 41, 11. Thurmond v. Trammell, 28 Tex. 371, 91
27 Am. Dec. 110 (1834). Am. Dec. 321 (1866) ;' Wright v. Doe, 1 A. &
The effect, by way of waiver, of failing to E. 3, 28 E. C. L. 28 (1834).
object at a former trial when the difficulty 12. Goodlett v. Kelly, 74 Ala. 213 (1883).
now, perhaps, beyond redress, might have 13. Carr v. Am. Loco. Co., 70 Atl. 196
been cured will, however, receive due ad minis- (1908).
473 NECESSITY. 620
testify on the ground of self-incrimination. He may claim some other priv-
ilege of silence, and so on.
E converse, should the witness himself be present in court, he must be called,
in the first instance, by the party who relies on his evidence. 14 For purpose
of corroboration or impeachment, 15 as constituting an admission, 16 or the like,
the former evidence is obviously competent, although the declarant be avail-
able as a witness 17 or, indeed, have testified as one.
Failure to summon. Should the proponent have failed to subpoena a wit-
ness but have relied upon his promise to be present and testify, no ground is
furnished for admitting the former testimony of a witness, should the latter
fail to appear and testify as agreed. 18
620. [Adequate Necessity] ; Absence from Jurisdiction. 19 Absence of a
witness from the jurisdiction of the forum, if permanent, and such as to pre-
vent the effectual service of compulsory process upon him may be a sufficient
justification for failure to produce the person in question as a witness. 20 This
is equally true whether the evidence of the absent witness be desired in a
civil 21 or criminal 22 proceeding. Absence in a foreign country, 23 sister
state, 24 or territory will furnish a sufficient administrative reason for receiving
former testimony. Even preparation for immediate departure from the juris-
diction of the forum, e.g., presence on ship ready to sail, 25 " starting to
move," 26 has been regarded as sufficient " absence " within the rule.
If a party procures the absence of one of his opponent's witnesses the latter
may introduce his former testimony. 2 ' In many cases the party has been re-
quired to show in addition that it is impossible to take the deposition of the
absent witness. 28 Temporary absence is treated like permanent absence as it
14. State v. Coleman, 199 Mo. 112, 97 S. dence of a witness who testified in a previ-
W. 574 (1906). ous trial and was cross-examined when he
15. Bess v. Commonwealth, 26 Ky. L. Rep. has disappeared and cannot be found where
839, 82 S. W. 576 (1904). there is no evidence of collusion in keeping
16. Lush v. Incorporated Town of Parkers- him away by the state as otherwise the de-
burg. 127 Iowa 701, 104 N. W. 336 (1905). fence could prevent prosecution simply by
17. Dambmann v. Metrop. St. Ry. Co., 106 taking witnesses out of the jurisdiction. Ed-
X. V. Suppl. 22J, 55 Misc. 60 (1907). wards v. State. 9 Okla. Crim. Rep. 306, 131
18. Chicago, M. & St. P. Ry. Co. v. New- Pac. 956, 44 L. R. A. (X. S.) 701 (1913).
some. 174 Fed. 394, 98 C. C. A. 1 (1909). 21. Reynolds v. Powers. 96 Ky. 481, 29 S.
19. 2 Clianiberlayne, Evidence, 1625- W. 299. 17 Ky. L. Rep. 1059 (1895).
1631. 22. State v. Simmons, 98 Pac. 277 (1908).
20. Dolph v. Lake Shore & M. S. Ry. Co.. 23. People v. Buckley. 143 Cal. 375, 77 Pac.
149 Mich. 27S, 112 X. W. 981, 14 Detroit 169 i!904).
Leg. X. 426 (1907). Evidence that a wit 24. Long v. Davis, 18 Ala. 801, 803 (1851).
ness has moved to another state and a sub- 25. Fonsick v. Agar, 6 Esp. 92 (1806).
poena is issued for him and returned show 26. McCutchen v. McCutchen. 9 Port. 650,
ing that the sheriff cannot find him is suffi- 654 (1839).
cient to authorize the admission of a copy of 27. Williams v. State, 19 Ga. 402 (1856) :
his evidence at the former trial. Henry v. Stout v. Cook. 47 Til. 530 (1868): State v.
State. 7 Okla. Crim. Rep. 715. 136 Pac. 982, Houser, 26 Mo. 431 (1858): Kirchner v.
52 L. R. A. (X. S.) 113 (1913). In a crim- Laughlin. 5 X. M. 365, 23 Pac. 175 (1890).
inal case the state may introduce the evi- 28. Southern Car & Foundry Co. v. Jen-
621-623 FORMER EVIDENCE. 474
has the same effect on the party who needs to use the witness 29 and even the
temporary return of the witness to the jurisdiction where the evidence is not
available does not prevent the use of his former evidence. 30
621. [Adequate Necessity] ; Claim of Privilege Against Self-Incrimination. 31
When a witness who has once testitied to a fact without objection, maintains
with success, on a second trial, that the giving of similar testimony on the
pending trial would tend to incriminate him, and, therefore, cannot be com-
pelled to answer, he is practically as unavailable to a proponent as if he were
dead or absent from the jurisdiction. But if the present statement would
incriminate the witness, the introduction of his former declaration would be
equally effective to that end. The former testimony has on this ground been
rejected. 32
622. [Adequate Necessity] ; Death. 33 The most conclusive necessity
which the proponent of the secondary evidence given at a former trial can urge
in asking to be allowed to introduce secondary evidence is that the witness has
since deceased. Under the earlier law this was the sole cause which sufficed
to excuse the party from producing the original witness. 34 ^o question has
arisen in civil cases as to the validity of this reason for failing to produce the
witness himself and receiving the secondary evidence of his former testimony. 35
Proof of the death of the original witness is sufficient, other conditions being
satisfied, to admit evidence of his former testimony.
The fact of death must, however, be affirmatively established to the satisfac-
tion of the presiding judge, by clear, positive and convincing testimony. 36 The
validity of death as a ground for receiving secondary evidence of the testimony
of a witness is not, however, confined to civil actions. The same rule has been
invoked in criminal prosecutions, 37 although there is some slight authority to
the contrary. 38
623. [Adequate Necessity] ; Imprisonment." 59 Except in so far as other-
wise regulated by statute 40 the fact that the former witness is now in prison
nings, 136 Ala. 247, 34 So. 1002 (1903); 34. Le Baron v. Crombie, 14 Mass. 234
Harbison & Walker Co., Southern Department (1817) ; Crary v. Sprague, 12 Wend. (X. Y. )
v. White (Ky. 1908), 114 S. W. 250; People 41, 27 Am. Dec. 110 (1834).
v. Long, 44 Mich. 296, 6 X. W 673 (1880) 35. Detroit Baseball Club v. Preston Xat.
29. Watrous v. Cunningham, 71 Cal. 30, 11 Bank, 113 Mich. 470, 71 X. W. 833 <1897)
Pac. 811 (1886) ; Monroe Bank v. Gifford, 70 36. Johnson v. Com., 70 S. W. 44, 24 Ky.
Iowa 300, 44 X. W. 558 (1890); Wright v. L. Rep. 842 (1902).
Cumpsty, 41 Pa. St. 102 (1861). 37. State v. Herlihy, 102 Me. 310, 06 Atl.
30. Hobbs v. State (Tex. Cr. App. 1909). 643 (1906).
117 S. W. 811; Fonsick v. Aga, 6 Esp. 92 38. Finn. v. Com., 5 Rand. (Va.) 701
H806). (1827); Brogg v. Com., 10 Gratt. (Va.) 722
31. 2 Chamberlayne, Evidence, 1632. (1853) ; U. S. v. Sterland, 27 Fed. Cas. Xo.
32. Hayward v. Barron, 38 X. H. 366 16.387 (1858).
(1859). 39. 9 Chamberlayne, Evidence. 1635.
33. 2 Chamberlayne, Evidence, 1633, 40. People v. Putnam, 129 Cal. 258, 61
Pac. 961 (1900).
475 NECESSITY. 624626
does not, in and of itself, suffice to admit his original testimony. The prisoner
is not, in intendment of law, beyond the reach of process and by taking proper
steps the proponent may procure his deposition or even compel his personal
attendance as a witness in court. 41 Additional facts may, however, cause the
trial judge to admit the secondary evidence. This may happen, for example,
where the prisoner contumaciously refuses to testify and his punishment, im-
posed for prior offences, is already so great that it is legally impossible to add
to it. 42
624. [Adequate Necessity]; Inability to Find. 43 A clear administrative
necessity for receiving the secondary evidence may be furnished where the
proponent, after the exercise of due diligence, finds himself entirely without
knowledge, or the means of acquiring it, as to the present whereabouts of the
former witness. The administrative necessity is complete and the former
evidence is properly received. 44 " If the party cannot find a witness, then he
is, as it were, dead unto him." 45 One condition judicial administration im-
poses upon the proponent, in this connection. It is not sufficient for him to
show simply that he is ignorant as to where the witness is. He must go fur-
ther and prove affirmatively to the court that he has used due diligence. 46
625. [Adequate Necessity]; Infamy. 47 Should a witness who has once
testified since become disqualified by reason of infamy, e.g., by conviction on a
charge of felony, he is equally unavailable to the proponent as a witness as if
he were dead, and his former testimony should, therefore, in point of prin-
ciple, be admitted, were the matter to be decided entirely by the right of the
proponent to prove his case. 48 However, the rule is settled that the former
statements of a convicted person are inadmissible, should he have been ren-
dered infamous. 49 The suspicion cast upon the credibility of the former tes-
timony by reason of the subsequent conviction, has not escaped notice.
626. [Adequate Necessity] ; Interest. 50 A much more satisfactory admin-
istrative rule and one more in accordance with the modern trend of the law
of evidence, has been adopted in jurisdictions which still retain rules disquali-
41. State v. Comvay. 56 Kan. 682, 44 Pac. 46. State v. Riddle. 179 Mo. 287, 78 S. W.
627 (1896). 606 (1904); State v Evans. 65 Mo. 574
42. Swit/er v. Boulton, 2 Grant Ch. 693 (1877).
(1851). 47. 2 Chamberlayne, Evidence. 1640.
43. 2 Chamberlayne, Evidence, 1636- 48. State v. Valentine, 7 Ired. (X. C.) 225,
1639. 227 (1847) : 334 et seq.
44. Maloney v. State (Ark. 1909), 121 S. 49. Redd v. State, 65 Ark. 475. 47 S. W.
W 728: Boyd v. St. Louis S. W. Ry. Co. of 119 (1898) : State v. Conway, 56 Kan. 682,
Texas (Tex. 1908), 108 S. W. 813 [reversed. 44 Pac. 627 (1896): LeBaron v. Crombie, 14
St. Louis S. \Y. Ry. Co. of Texas v. Boyd Mass. 235 (1817); Webster v. Mann, 56 Tex.
(Tex. Civ. App. 1907), 105 S. W. 519]. 119 (1882).
45. Anon., Godbolt. 326 ( 1623 ), per Cham- 50.2 Chamberlayne, Evidence, 1641-
berlain and Dodderidge, JJ. 1643.
627 FORMER EVIDENCE. 476
fying witnesses on the ground of interest in the result when one who has testi-
fied on a former trial has become thus disqualified. From the standpoint of
the party who would otherwise again offer the original witness, the bar of legal
disqualification is as insuperable as would be that of death or absence from
the jurisdiction. 51 Under such circumstances, former evidence has been held
to become admissible. 52
Under the rule that prevails in some states that where one party to a pend-
ing controversy dies the surviving litigant will not be allowed to testify against
the estate of the former the former testimony of the person who is no longer
permitted to testify is received. 53 Even at common law the defendant in an
action for malicious persecution could show his testimony supporting the
criminal charge he made. 54
627. [Adequate Necessity] ; Mental Incapacity. 55 Circumstances may ex-
ist, under which, though the witness be alive, within the jurisdiction, even
actually present in court 5G and subject to no legal disqualification ; and yet a
sufficient administrative necessity may unquestionably be presented for re-
ceiving secondary evidence of his former testimony. Prominent among such
circumstances may be certain conditions of mind or body. The proponent, for
example, may be prevented from putting his witness on the stand by reason of
some mental incapacity on the part of the latter. Thus, insanity, either in
civil 57 or criminal proceedings 5S and whether hopelessly chronic or tem-
porary 59 may, if it has arisen since the former evidence was given, 60 excuse
the actual production of the witness. The same rule will be applied should
51. "He (the witness) was disabled to give full opportunity for cross-examination had
evidence by the act of God, so that it was in been given. New v. Smith, 94 Kan. 6, 145
effect, the same thing as if he were dead." Pac. 880, L. R. A. 1915 F 771 (1915).
Tilly's Case, 1 Salk. 286 (1703), per Trevor, 54. Kansas & Texas Coal Co. v. Galloway
C. J., dissentiente. (Ark. 1903), 74 S. YV. 521.
Marriage. Former testimony at a previous 55. 2 Chamberlayne, Evidence, 1644.
trial of one who has since then married the 56. Rothrock v. Gallaher, 91 Pa. St. 108
defendant is not admissible as against the 1879).
defendant in a manslaughter case. Langh'am 57. Stout v. Cook. 47 Til. 530 (1868).
v. State. 12 Ala. App. 40, 08 So. 504. \ew Jersey. Berney v. Mitchell, 34 X. J.
52. Smithpeters v. Griffin, 10 B. Mon. (Ky.) L. 337 ( 1870).
259 (1850). Pennsylvania. Emig v. Diehl, 76 Pa. St
53. Morehouse v. Morehouse, 41 Hun (X 359,373 (1874).
Y.) 146 (1886) (statute); Walbridge v. 58. Lucas v. State. 96 Ala. 51. 11 So. 216
Knipper, 9(5 Pa St. 48 (1880); Lee v. Hill, (1892) ; State v. Wheat. Ill La. 860, 35 So.
87 Va. 497, 12 S. E. 1052, 24 Am St. Rep. 955 (1903).
066 (1891). See also, Bowie v. Hume, 13 59. R. v. Marshall. Car. &, M. 147 (1841).
App. Cas (D. C.) 286 (1898). But see, to It has, however, been held that the former
the contrary effect. Barker v. Hebbard. 81 evidence of the witness is not admitted though
Mich 267, 45 X. \V. 964 (1890): Moore v he is temporarily insane. State v. Canny, 158
Palmer, 14 Wash. 134. 44 Pac. 142 (1896) Mass. 210 (1893).
\\bere a witness is precluded from testifying 60. Thompson v. State. 106 Ala. 07, 17 So.
lo transactions with a deceased person, his 512 (1895): Howard v Patrick, 38 Mich. 799
testimony at a former trial when the other (1878); Whitaker v. Marsh, 62 X. H. 478
party was alive may be put in evidence as (1883).
477 NECESSITY. 028, 02 U
the memory of the witness 61 or his other mental faculties have become so
greatly impaired by reason of old age G2 or other cause as to make it impossible
for him to testify with advantage to the cause of justice.
628. [Adequate Necessity] ; Official Duty. 03 Inability on the part of a
witness to attend a trial owing to the requirements of official 64 duty, will
usually be deemed sufficient administrative warrant for receiving the secondary
evidence of his former testimony. The validity of the excuse rests with the
trial court.
629. [Adequate Necessity] ; Physical Incapacity . 5 While the mental
powers of a witness may be adequate to the task of testifying, his bodily health
may be so greatly impaired as to make the effort to testify dangerous to life or
impossible of accomplishment. A witness may be so sick 6 by reason of an
acute 67 or chronic t:s disease; may be so enfeebled by old age 69 or completely
prostrated by great bodily infirmity 7 " apart from old age or any definite dis-
ease, as actually to be, at the time of trial, physically unable to attend and tes-
tify. 71 Such a situation will justify the presiding judge in admitting second-
ary evidence of the former testimony of the witness; if, indeed, it does not
require him to adopt this course.
The same result follows where the witness loses his voice T2 or hearing 73 or
eye-sight. 74 Fear of abuse of this privilege has caused its rejection however
61. Central K. & B. Co. v. Murray, 97 Ga. (recent childbirth); Reg. v. Wilshaw, C. &
326, 22 S. E. 972 (1895) (old age). M. 145, 41 E. C. L. 84 (1841).
62. Central R., etc., Co. v. Murray, 97 Ga. 71. State v. Granville, 34 La. Ann. 1088
326, 22 S. E. 972 (1895); Whitaker v. Marsh, (1882) ("lying sick in hospital"); Rogers
62 X. H. 477 (1883); Thornton v. Britton, v. Raborg, 2 G. & J. 60 (1829)
144 Pa. St 120, 131. 22 Atl. 1048 (1891). Michigan. Howard v. Patrick, 38 Mich.
63. 2 Chamberlayne, Evidence, 1645. 795, 799 (1878).
64. Xoble v. Martin, 7 Mart. (X. S.) [La.] -Veir Jersey. Berney v. Mitchell, 34 X. J.
282 (1828) (deputy sheriff); Mushrow v. L. 341 (1870)
Graham, 1 Hayw. (X. C.) 361 (1796) (col- Pennsylvania. Perrin v. Wells, 155 Pa.
lector of customs). 299, 300, 26 Atl. 543 (1893) (too ill to be
65. 2 Chamberlayne, Evidence, 1646- present).
1651. 72. R. v. Cockburn, 7 Cox Cr. 265 (1857).
66. Berney v. Mitchell, 34 X. J. L. 337 23. R. v. Cockburn, 7 Cox Cr. 265 (1857).
(1870). 74. Houston v. Blythe. 60 Tex. 506, 509,
67. Chase v: Springe-ale Mills Co., 75 Me. 512 (1883) (aged); Kinsman v. Crooke, 2
156 (1883) (typhoid fever delirium 1 ). Ld. Raym. 1166 (1705).
A merely temporary illness is, however, 75. Chicago, etc., R. Co. v. Mayer, 91 111.
not an excuse. Siefert v. Siefert, 123 Mich. App. 372 (1899): Doe v. Evans, 3 C. & P.
664. 82 X \V. 511 (1900). 221 (1827), Vaughan, B.
68. Miller v. Russell. 7 Mart, i X. S.} [La.] Physical sickness at the time of trial will
266 (1828) (''laboring with disease"). not justify receipt of the evidence, though it
69. Willeford v. Bailey. 132 X C. 402, 43 is such as absolutely to prevent attendance.
S. E. 928 (1903) (deposition; unable to Com. v. McKenna. 1.18 Mass. 207, 33 X. E.
talk) : Johnson v. Sargent, 42 Vt. 195 (I860) 389 (1893) : State v. Staples, 47 X. H. 113,
(deposition). 119, 90 Am. Dec. 565 (1866).
70. R. v. Harney, 4 Cox Cr. 441 (1850)
630, 631 FOKMER EVIDENCE. 478
in some cases, both civil 75 and criminal Tc and wherever possible the deposition
of the witness will be preferred to his former testimony. 77
630. "Former Trial." 78 Where the more important conditions of ad-
missibility are met, a broad administrative liberality is exercised in determin-
ing what shall be deemed to constitute a " former trial." 79 " It is sufficient
if the point was investigated in a judicial proceeding of any kind, wherein the
party to be affected by such testimony had the right of cross-examination." 80
In order that former testimony may be provable, it must have been taken in the
course of some judicial proceeding in a competent tribunal, the character of
the latter being immaterial, so long as it is judicial in character. 81 Whether
the earlier hearings were preliminary or final, 82 a former trial of the same
case, 8a or an entirely independent proceeding, whether one or both hearings
were formal or informal, are matters not regarded as of the least importance.
Evidence taken in equity may be used on a trial at law. 84
The prior proceedings may have never been completed 85 or may have
been in an inferior court 86 or may have been in a court lacking jurisdiction 87
or in preliminary proceedings. 88
631. The Hearsay Rule. 89 The reception of secondary proof of evidence
given at a former trial is not an exception to the rule excluding hearsay. In
fact, it lies entirely outside the scope of the hearsay rule and is not affected
by the mischiefs against which the great exclusionary rule, rejecting unsworn
statements in their assertive capacity, was intended to provide. The pro-
cedural rules, the rules of substantive law relating to procedure, against which
the evidence of an unsworn statement when used as hearsay apparently of-
fends are two. A party litigant is entitled to insist that all evidence intro-
78. Com. v. McKenna, 158 Mass. 207, 210, 82. 1655.
33 X. E. 389 (1893); State v. Staples, 47 83. Clealand v. Huey, 18 Ala. 343 (1850);
N. H. 113 (1866) ; People v. Newman, 5 Hill People v Devlne, 46 Cal. 46 (1873) ; Orr v.
(N. Y.) 295 (1843). See also, McLain v. Hadley, 36 X. H. 575 (1858).
Com., 99 Pa. St. 97 (1881). 84. Rogers v. Rogers (Del. 1907), 66 Atl.
77. Berney v. Mitchell, 34 N. J. L. 341 374.
(1870). 85. Taft v. Little, 79 N. Y. Suppl. 507, 78
78. 2 C'hamberlayne, Evidence, 1652- App. Div. 74 (1903); Lawson v Jones. 1 X.
1655. Y. Civ. Proc. 247. f>l How. Pr. (X. Y.) 424
79. Jackson v. Crilly, 16 Colo. 103, 26 Pac. (1881), disagreement: Hutchings v. Corgan,
331 (1891); Orr v. Hadley, 36 X. H. 575 59 111. 70 ( 1871 ): Hocker v. Jamison. 2 Watts
(1858); Young v. Valentine, 177 X. Y. 347, & S (Pa.) 438 (1841). non-suit.
69 X. E. 643 [affirming 79 X. Y Suppl. 530 86. fJannon v. Stevens, 13 Kan. 447 (1874) ;
(1904)]. Cumberland Coal, etc., Co. v. Jeffries, 27 Md.
80. Orr v. Hadley, 36 X. H. 575. 580 i 1858) . 526 ( 1867) .
per Eastman, J. A hearing before a com- 87. Jerome v. Bolim. 21 Colo 322. 40 Pac.
mittee of the United State senate is not re- 570 (1S95). See also, McAdams v. Stilwell,
garded as a judicial proceeding in this con 13 Pa. St. 90 (1850)
nection. In re Hilton's Petition (Utah 1905). 88. Com. v. Lenousky, 206 Pa. St. 277, 55
81 Pac. 83. Atl 977 (1903).
81. Putnal v. State (Fla. 1908), 47 So. 864. 89. 2 Chamberlayne, Evidence, 1656.
479 IDENTITY. 632, 633
duced against him shall be given (a) under oath and (b) received subject to
cross-examination. Neither of these procedural rights is infringed by the
admission of the former testimony of an unavailable witness, when the recep-
tion is conditioned as above stated. The right of confrontation, 90 which is
frequently conferred by statute on the accused, and the right of cross-examina-
tion are not affected by the reception of former evidence where there was full
opportunity for cross-examination and it was conducted by anyone who was
privy to the accused and where it would have been natural for the cross-exam-
ination to have covered the facts now offered on account of identity of issues. 91
632. Identity of Issue. 92 It is incumbent upon the party offering the
secondary evidence 93 to show, in an affirmative manner, to the satisfaction of
the judge, 94 either by the evidence of witnesses or by production of the record
of the former suit, 95 that the issues in the two cases are identical. 90 In most
cases, it will be sufficient to show that they are so similar as to render it prob-
able that the party or his privy had a fair opportunity for cross-examination as
to the facts offered on the subsequent hearing. 97 This is the essential point,
to which the attention of the court is directed. The mere opportunity to cross-
examine 98 even though waived " is enough. The issues must, however, be
the same l although they arise in different forms of actions 2 and the position
of the parties on the record may be even reversed 3 or in a criminal case the
evidence may have been offered in different indictments. 4
633. Identity of the Parties. 5 It is incumbent upon the proponent of evi-
dence of a witness given at a former hearing to satisfy the court that the party
against whom the testimony is now offered was present on the earlier occasion,
90. State v. Walton, 99 Pac. 431 (1909) 99. Bradley v. Mirick, 91 N. Y. 293 (1883);
[rehearing denied. 101 Pac. 389]. Cazenove v. Vaughan, 1 M. & S. 4, 14 Rev.
91. Fender v. Ramsey & Phillips, 131 Ga. Rep. 377 (1813).
440, 62 S. E. 527 (1908), ex parte affidavit 1. Marshall v. Hancock, 80 Cal. 82, 22 Pac.
rejected. 61 (1889). It is not enough that the same
92. 2 Chamberlayne, Evidence, 1660- fact is in issue in both cases.
1667 2. Mabe v. Mabe, 122 X. C. 552, 29 S. E.
93. Bryant v. Owen, 2 Stew. & P. (Ala.) (1898) (ejectment and contract on notes
134 (1832) : Marshall v. Hancock, 80 Cal. 82, given for the purchase money of the land).
22 Pac 61 (1880) ; Mitchell v. State, 71 Ga The former testimony of a witness may be
128 (1883): Neff v. Smith. 91 Iowa 87, 58 introduced in evidence in a civil action for
X. \V. 1072 (1894). the same injury as the criminal proceeding in
94. Chase v. Rpringvale Mills Co., 75 Me. which the testimony was given. Ray v. Hen-
156 (1883). derson, 44 Okla. 174, 144 Pac. 175.
95. Ephraims v Murdock, 7 Blackf. (Tnd.) 3. Morgan v. Xk-holl. L. R. 2 C. P 117, 12
10 (1843) : Kutzmeyer v. Ennis, 27 X. J. L. Jur. X. S. 963. 36 L. J. C P. 86, 15 L. T.
371 (1859). See also, Tritcli v. Perry (Colo. Rep X. S. 184. 15 Wkly. Rep. (1866).
1910), 108 Pac. 981. 4. Reynolds v. U. S., 98 U. S. 145, 25 L.
96. Watson v. R. Co., 76 Minn. 358. 70 ed. 244 (1878).
X'. W. 308 (1899) (amended declaration). 5. 2 Chamberlayne, Evidence, 1668-
97. Simmons v. State, 129 Ala. 41, 29 So. 1675.
929 (1900). 98. In re Durant, 80 Conn. 140, 67 Atl. 497
(1907).
634 FORMER EVIDENCE. 480
either personally, or through some one, who, under the rules of substantive
law, was entitled to represent him, in this particular connection. If this
condition is complied with the secondary evidence, so far as identity of parties
is concerned, is admissible, provided that when the present party was repre-
sented by another at the former trial, the latter should have had an adequate
motive effectively to present to the court the interest which the party himself
now holds.
In proceedings in rem the court may treat as a party one who might have
taken that status in the proceedings. 7 The former action may have been
between privies. 8 Agency is not privity, 9 but the presence of a nominal party
on the record does not alter the situation. 10 Privity may be by blood u or by
estate 12 or by representation. 13
634. Scope of Proof; Extension. 14 Before admitting the secondary evi-
dence of what was stated at a former trial, the court will, as a matter of sound
administration, require satisfactory proof or assurances by counsel, that the
witnesses or documents by which it is proposed to establish the former testimony
cover it, both as to extension and intension, with the fullness and precision
called for in that jurisdiction, by the rules of practice or substantive law re-
lating to procedure which prevail there. As to what the report of the former
testimony shall be required to cover, by way of extension, substantial unani-
mity exists among the courts of England and America. With the particu-
6. Stewart v. Register, 108 X. C.-588, 591, 11. Atlanta & W. P. R. Co. v. Venable, 67
13 8. E. 234 (1891); Bryan v. Malloy, 90 Ga. 697, 699 (1881) (first suit, mother suing
N. C. 508, 510 (1884). for injuries; child suing for her death from
7. Llanover v. Homfray, L. R. 19 Ch. D. same injuries; admitted); Parsons v. Par-
224 (1880); In re Wiltsey's Will (Iowa aons, 45 Mo. 265 (1870).
1906), 109 N. W. 776. 12. Shaw v. New York Elevated R. Co.,
8. Fredericks v. Judah, 73 Cal. 604, 15 Pac. 187 N. Y. 186, 79 N. E. 984 (1907) [judgment
305 (1887). affirmed. 96 X. Y. Suppl. 1145, 110 App. Div.
9. Goodrich v. Hanson, 33 111. 498, 508 892 (1905)].
(1864); Domville v. Ferguson, 17 N. Br. 40 13. Fredericks v. Judah, 73 Cal 604, 608,
(1877). 15 Pac. 305 (1887) (executrix and heir: ad-
10. Holmes v. Boydston, 1 Neb. 346. 354 mitted). The testimony of a witness for the
(1870); Salmer v. Lathrop, 10 S. D. 216, 72 defendant in an action by a father in the
N. W. 570 (1897); Wright v. Tatham, 1 A. name of a minor child for her injury is ad-
& E. 3 (1834). missible in a later action by the father after
Should the new party possess a substan- the death of the witness for damages for in-
tial interest, the former evidence may still be juries to himself growing out of the same
competent against the newcomer should the injury as the issues were th'e same, and the
latter stand in some relation of privity to an father had the full management of the tfrst
original party. Goodlett v. Kelly, 74 Ala. suit and employed the same counsel who
219 (1883). Otherwise, where new parties cross-examined the witness at length. Lyon
having substantial rights are added in the v. Rhode Island Co., 3S R. I. 252. 94 Atl.
subsequent suit, the former evidence is ex- 893, L. R. A. 1916 A 983 (191.1).
eluded. Brown v. Zachary. 102 Towa 433. 14. 2 Chamberlayne, Evidence, 1676-
71 N. W. 413 (1897) : Kerr v. Gibson. 8 Bush 1680.
129 (1871) (evidence excluded as to new
party).
481 SCOPE. 635, 636
larity, or intension, called for in that jurisdiction, the witness must be able
to report the entire examination of the original witness, 15 both upon direct
and at th- state of cross-examination, 16 so far as relates to the facts or proposi-
tions for which the secondary evidence is being offered. 17 It follows that
where the reporting witness, on account of deafness, 18 or other sufficient cause
cannot well be sure that he heard all that was said by the original witness, his
testimony is to be rejected. If part of the former evidence is admitted, the
whole is competent in accordance with the canon of completeness. 19
The witness need not however state at just what stage of the proceedings the
testimony was given 20 and may even forget immaterial portions of the testi-
mony. 21 This evidence may be supplemented by the opposing side. 22 Where
the evidence is introduced solely to show an admission 23 or to contradict the
the witness 24 only the fact relied on need be given.
635. Scope of Proof; Intension; Precision in Recollection. 25 When the rule
permitting the introduction of former testimony was first promulgated the
court required that the exact language of the witness should be repeated 26 but
the impossibility of satisfying this requirement in most cases resulted in re-
laxing this strict requirement and in some courts only the essential words need
be repeated 27 and in others only the substance of the former evidence need be
given 28 and in some jurisdictions merely the effect of the former evidence is
enough. 29 In all cases the burden of satisfying the court that the witness can
satisfy the requirements is upon the party offering him. 30
636. [Media of Proof] ; Official Documents. 31 Except where otherwise ex-
pressly provided, each medium of proof, i.e., by documents or witnesses, as a
15. Buie v. Carver, 73 X. C. 264 (1875). 552 (1891); Bryson v. Hamilton, X. Br.,
16. Denson v. Benson, 111 Ga. 809, 35 S. Stevens Dig. 1880, p. 619 (1873). See also,
E. 680 (1900) ; Puryear v. State, 63 Ga. 692 State v. Ripey (Mo. 1910), 129 S. W. 646.
(1879) ; Aulger v. Smith. 34 Til. 534 (1864). 25. 2 Chamberlayne, Evidence, 1681-
17. Schearer v. Harber, 36 Tnd. 536 ( 1871) ; 1687.
Weeks v. McXulty, 101 Tenn. 495, 48 S. W. 26. Ephraims v. Murdock, 7 Blackf. 10
809 (1898) ; Johnson v. Powers, 40 Vt. 611 (1843). But see Homer v. Williams, 23 Ind.
(1868). 37 (1864) (overruling early law) .
18. Buie v. Carver, 73 X. C. 264 (1875). 27. Earl v. Tupper, 45 Vt. 275 (1873).
19. Aulger v. Smith, 34 111. 534 (1864). 28. Central of Georgia Ry. Co. v. Carleton
20. Pratt v State (Tex. Cr. App. 1908), (Ala. 1909), 51 So. 27; State v. Herlihy, 102
109 S. W. 138. Me 310, 66 Atl. 643 (1906) ; Keim v. City of
21. Helper v. Bank, 97 Pa. St. 420, 424 Reading, 32 Pa. Sup. Ct. 613 (1907).
(1881). 29. Garrott v. Johnson. 11 Gill & J. (Md.)
22. Burnett v State, 87 Ga. 622, 13 R. E. 173, 35 Am. Dec. 272 [distinguished in Black
552 (1891); Weeks v. McXulty. 101 Tenn. v. Woodrow, 39 Md. 194] (1840); Helper v.
495, 48 S. W. 809, 70 Am. St. Rep. 693, 43 L. Mt. Carmel Sav. Bank, 97 Pa. St. 420, 39 Am.
R. A. 185 (1898). Rep. 813 (1881); Kendrick v. State, 10
23. State v. Sortor, 52 Kan. 531, 540, 34 Humphr. (Tenn.) 479 (1850).
Pac. 1036 (1893). 30. Emery v. Eowler, 39 Me. 326, 63 Am.
Zibell v. Grand Rapids, 129 Mich. 659, 89 Dec. 627 (1855).
N. W. 563 (1902). 31. 2 Chamberlayne, Evidence, 1688-
24. Burnett v. State, 87 Ga. 622, 13 S. E. 1695.
637 FORMER EVIDENCE. 482
rule, is equally competent, provided it comply with the prescribed conditions.
To this course of administrative dealing with proof of former evidence, the
courts have, in practical application, apparently established a single exception.
In cases where the regularity and disinterestedness of official business enter
into the consideration of the course to be pursued, a not unnatural inclination
to give special force to these circumstances is observable. Even where the act
is not done in obedience to an official duty, the same action is frequently taken
by the courts. In pursuance of this administrative principle, it has been held
that statements reduced to writing by one under an official duty so to do are to
be preferred to oral testimony, as constituting a higher grade of proof, either
in case of the former testimony of a party, 32 or that of a witness. 33
Depositions prepared under the requirement of positive law are often ad-
mitted as evidence per se as in case of transcripts of the evidence by the judge
himself. 34 The same consideration applies to certain court papers as an agreed
statement of facts 35 but a bill of exceptions is usually regarded as too biased
to be received. 30 Even briefs of evidence have been admitted for this pur-
pose 37 and may in any event be used as admissions against the party who
signed them. 38 A record made by an official under no duty to make it is not
admissible as an official record. 39 Under the majority view the official record
is not conclusive. 40
637. [Media of Proof] ; Unofficial Documents ; Memoranda. 41 Some doubt
has been expressed as to the propriety of permitting former evidence to be
proved by memoranda which create no present recollection as to the evidence
itself on the part of the reporting witness, i.e., where his present power of
statement is confined to identifying the memoranda as those which he made on
a former occasion and then knew to be accurate. 42 Certain courts decline to
receive memoranda only identified and authenticated to this extent as proof of
the statements of the original witness. 43 The greater weight of authority,
however, repudiates any distinction between the admissibility of contempora-
32. Leggett v. State, 07 Ga. 426, 24 S. E. Houston, etc., R. Co. v. Smith (Tex Civ. App.
165 (1896). (1899), 51 S. W. 506.
33. People v. Hinehman, 75 Mich. 587, 589, 39. C.rimsinger v. State (Tex. 1902), 69
42 N. W. 1006 (1889). S. W 58,3. The contrary has, however, been
34. Bennett v. State, 84 Ark. 97, 104 S. W. held in South Carolina. State v. Branham,
928 (1907). 13 C. 389, 396 (1879).
35. Smith v. State, 28 Ga. 19, 23 (1859) 40. People v. Curtis, 50 Cal. 95 (1875):
36. Breitenwischer v. Clough. 116 Mich. State v. Hull, 26 Iowa 293, 297 (1868). See
340, 74 N. W. 507 (1898). also, Poe v State (Ark. 1910), 129 S. W. 292.
37. Owen v. Palmour, 111 Ga. 885, 36 S. E. 41. 2 Cliamberlayne, Evidence, 1696-
969 (1900). Hut see Sloan v. Somers, 20 N. 1701.
J. L 66 (1S43). 42. Best on Ev. (Chamberlayne's 3d
38. Lathrop v. Adkisson, 87 Ga. 339. 13 Amer. ed), pp 218, 219.
S. E. 517 (1891); Dwyer v Bassett, 1 Tex. 43. Yancey v. Stone. 9 Rich. Eq. (S. C.)
Civ. App. 513, 21 S. W. 621 (1892). But see, 429 (1857) : U. S. v. Woods, 2S Fed. Cas. No.
16,756. 3 Wash 440 (1818).
483 MEDIA OF PKOOF. 638
neous memoranda in this way and their similar use in other connections. The
practice, therefore, is to receive memoranda in these courts, although no one
testifies to a present knowledge of the fact that the original witness made these
precise statements, except so far as such a declaration on the part of the re-
porting witness may be implied from the assertion that he made the memo-
randa at the time and then knew them to be accurate. 44
The memoranda themselves must be produced as the " best evidence." 45
Xotes taken by attorneys should be receivel with caution 46 as taken in haste
and apt to be incomplete and even notes of the presiding judge are not evi-
dence per se but must be proved by his oath. 47
638. [Media of Proof; Unofficial Documents; Memoranda]; Stenographers. 48
Great as is the advantage over other methods, in point of accuracy and full-
ness, presented by stenographic transcripts of the former testimony of wit-
nesses, judicial appreciation does not reach the point of constituting it into a
separate class or grade of secondary evidence. It is not, in any sense <k best
evidence." 49 If it appear that such a transcript of the evidence has been
made, its production will not, as a rule. 50 be required nor need its absence be
explained as a preliminary to receiving oral testimony. It may be said, gen-
erally, that a stenographic report of testimony given on a former trial is ad-
missible, when a proper basis therefor is laid. 51 An essential condition upon
the admissibility of the transcript of an unofficial stenographer is that it
should affirmatively be made to appear that the notes taken by the stenographer
were a faithful copy, in phonetic character, of the evidence actually given and
that 52 the longhand transcription, if any, faithfully reproduces the notes. 53
The evidence of an official stenographer has no advantage and is not evi-
44. Luetgert v. Volker. 153 111. 385. 30 X 47. Mineral Point R. Co. v. Keep, 22 111.
E. 113 (1894); Moore v. Moore, 39 Iowa 9, 74 Am. Dec. 124 ( 1859) ; Com. v. Ryan, 134
461 (1874). Mass. 223, 225 (1883): Peorle v. Corey,
Amor v. Stoekele. 76 Minn. 180, 78 X. W. 157 X. Y. 332, 51 N. E. 1024 (1898).
1046 (1899). 48. 2 Chamberlayne, Evidence, 1702-
45. Sanford v. State (Ala. 1905), 39 So. 1705.
370. 49. Golden Georgia v. McManus, 113 Ga.
46. "It is no part of the counsel's duty to 982, 39 S. E. 476 (1901).
take down the whole testimony of a witness. 50. Brown v. State. 76 Ga. 626 (1886);
and in most cases it would be impracticable Hinshaw v. State, 147 Ind 334. 47 X. E.
for him to do so; generally he does no more 157 (1897) : State v. McDonald. 65 Me.
than note down those parts of the testimony 467 (1876). See also. State v. Dean (Iowa
which appear to him to be ma*-ial. or most 1910), 126 X. \V. 602.
worthy to be noted or tending to support his 51. Iowa Life Ins. Co. v. Haughton (Ind.
own side of the case: and to admit the notes App IflOS). 8"5 X. E 127.
thus taken to be read in evidence, as proof 52. State v. Kendig (Iowa 1907). 110 X.
of the testimony which had been given, would W. 463; Morawit/ v. State (Tex. Cr. App.
be a very unsafe practice: and we do not find 1906). 91 S. W. 227
it sanctioned by any decided case." Waters 53. Degg v. State (Ala. 1907). 43 So. 484.
v. Waters. 35 Md. 531, 539 (1872); per See also. Wiener v Zweib (Tex. Civ. App.
Bartol, C. J. 1910), 128 S. W. 699.
639 FORMER EVIDENCE. 484
dence per se 54 except so far as it has been made so by statute 55 in many
states.
639. [Media of Proof]; Witnesses; Independent Memory. 00 Until the
enactment of statutes authorizing the appointment of official court stenographers,
the machinery of a trial under the English system of judicial procedure in-
cluded no person designated and bound to report the evidence as it was sub-
mitted. Anyone who originally heard the evidence and can testify as to it, to
the extent and with the intension required by law, at all times has been com-
petent as a witness. r>7 The speaker may be the judge who presided at the
former trial. 58 Such a person may testify either from an unaided memory,
or from a recollection refreshed by the use of suitable memoranda. 59 It is
merely the usual privilege of a witness 00 which enables a person who has
taken contemporaneous notes of the former evidence to refresh his memory
by the aid of these notes when testifying with regard to his evidence on a
former occasion. 61 The competency of the evidence is not impaired by the
fact that the witness has no independent recollection, i.e., that he only remem-
bers the evidence in connection with his notes, as his memory is refreshed by
them. 62
54. Smith v. Hine, 179 Pa. St. 203, 36 Atl. accuracy; or the former evidence may be
222 (1897). proved by any person who will swear from
55. Temple v. Phelps, 193 Mass. 297, 79 N. his memory to its having been given." Don-
E. 482 (1907). caster v. Day, 3 Taunt. 262 (1810) per Mans-
56. 2 Chamberlayne, Evidence, 1706- field, C J.
1708. 60. Best on Ev. ( Chamberlayne's 3d
57. State v. Mushrush, 97 Iowa 444, 66 Amer. ed.), p. 218.
N. W. 746 ( 1896) (jury man). . 61. Costigan v. Lunt, 127 Mass. 354 i 1879).
58. Freeman v. Com., 103 S. W 274, 31 62. Van Bnren v. Cockburn, 14 Barb. (N.
Ky. L. Rep. 639 (1907). Y.) 118 (1852); Dowd v. State (Tex. Cr.
59. "What a witness has sworn . . . mav App. 1908) 108 S. W. 389; Reg. v. Plummer,
be given in evidence either from the judge's 1 C. & K. 600. 8 Jur. 921, 47 K. C. L. 600
notes, or from notes that have been taken ( 1844) ; Reg. v. Child, 5 Cox C. C. 197 (1851).
by any other person who will swear their
CHAPTER XXIII.
RELEVANCY.
Relevancy, 640.
Stephens definition, 641.
Stephen's definition considered, 642.
640. Relevancy. 1 It is in terms of relevancy, rather than in those of rea-
soning that the underlying rule of the English law of evidence is commonly
stated. 2 All facts which are relevant will be received in evidence. 3 Facts
which are not relevant are excluded. 4 All facts having rational probative value
are admissible unless some specific rule forbids. 5 The law of evidence is one
of exclusion. Xothing could apparently be more precise.
Meaning of Terms. It may be said that the main lines of mental operation
on the part of the court during the trial at law, though probably in a state
of constant flux, are practically three, proving, measuring and weighing, and
it will be found that the facts admitted in evidence are received in aid of
these several processes for the reason that they respectively possess, from this
relationship to the act of reasoning a relevancy which is (1) probative, (2)
1. 3 Chamberlayne, Evidence, 1711-
1716.
2. Relation between relevancy and reason-
ing. Adopting the nomenclature of the pres-
ent treatise, facts rationally adapted to as-
sist in the process of proving are spoken of
as probatively relevant. Those logically tend-
ing to assist in the process of weighing res
gestae and other facts in the probative scales
are said to be deliberatively relevant. Facts
which reasonably assist the mental act of
measxiring these facts by some standard of
fact or law are designated as being constitu-
ently relevant. See General Nature of Proof:
Judicial Reasoning in General. 3 Chamb.,
Ev., 1709. 1710. ITlOa.
3. Riverside Water Co. v. Gacre. 108 Cal.
240. 41 Pac. 299 M895) : Payson v. Village
of Milan. 144 111. App. 204 (1908): Mosby
v. McKee. etc., Commission Co., 91 Mo App.
(1902): O'Horo v. Kelsey. 70 X. Y. Supp.
14, 60 App. Div. 604 (1901) : Findlay Brewing
Co. v. Bauer. 50 Ohio St. 560. 35 X. E. 55
(1893) : Atkins v. Payne. 190 Pa. 5. 41 Atl.
378 (1899): Xelson v. U. S., 201 U. S. 92,
26 S. Ct. 358, 50 L. ed. 673 ( 1906) : 3 Chamb.,
Ev., 1711, n. 2. Evidence will be received
if relevant upon any issue of the case. Rea-
gan v. Manchester St. Ry. Co., 72 X. H. 298,
56 Atl. 314 (1903).
4. Brownlee v. Reiner, 147 Cal. 641, 82
Pac. 324 (1905): Hannan v. Anderson, 15
Colo. App. 433, 62 Pac. 961 (1900) : Darnall
v. Georgia Ry. & Electric Co., 134 Ga. 656
(1910) ; City of Marengo v. Eichler, 245 111.
47, 91 X. E. 758 (1910) : demons Electrical
Mfg. Co. v Walton, 206 Mass. 215, 92 X. E.
459 (1910); State v. Wilson. 223 Mo. 173,
122 S. W. 701 (1909): People v. Cahill. 188
X Y. 489, 81 X. E. 453 (1907) -. Indian Land
& Trust Co. v. Clement. 22 Okl. 40, 109 Pac.
1089 (1908): State v. Clem. 49 Wash. 273,
94 Pac. 1079 (1908): 3 Chamb.. Ev.. 1711,
n. 3. A partv is not at liberty to offer
pvidenop in ono <;>-<> on the ground that it will
be relevant in another. In re Shawmut Min.
Co.. 87 X. Y. Supp. 1059. 94 App. Div. 156
(1904).
5. Kirchner v. Smith, 61 W. Va. 434, 58
S. E. 614 (1907).
485
641 RELEVANCY. 486
constituent and (3) deliberative. 6 To the quality which enables the existence
of one fact to prove the reality of another the term, probative relevancy may
properly be applied. 7 The characteristic quality of a fact or set of facts which
enable them, with or without others, to constitute a fulfillment of the conditions
imposed by a given rule, term or definition, may, with apparent propriety, be
called constituent relevancy. 8 Facts logically tending to assist in the process of
weighing res gestae and other facts, by the use of reason, have been denominated
deliberative and their ability to assist the judgment of the jury may properly
be spoken of as deliberative relevancy. 9
Underlying Conception. " Relevancy," 10 and " relevant," n reveal their
essential meaning in the primary and derivative significance stated in the dic-
tionary and judicial definitions. The primary conception of the term
" relevant " is at once seen to be that of upholding, sustaining an effort of some
kind ; and, in connection with the use of reasoning, logical or legal, of advancing
or furthering an intellectual effort of some sort. Where the proposition urged
is controverted, that may be said to be relevant which supports, or tends to
prove or disprove the truth of, either of these contentions. 12
641. Stephen's Definition. 13 In the first edition of his Digest of Evidence,
Stephen adopts from his Introduction to the Indian Evidence Act 14 an excel-
lent, if not unexceptionable definition of relevancy, frequently quoted with
approval. 15 " Facts," he says, " whether in issue or not, are relevant to each
6. 3 Chamb., Ev., 1711a. evidence any circumstances which tend to
7. 3 Chamb., Ev., 1712. make the proposition at issue more or less im-
8. 3 Chamb., Ev., 1713. probable. Whart. Ev , 20, 21; 3 Chamb.,
9. 3 Chamb., Ev., 1714. Ev., 1715, n. 1.
10. See definitions, Cent. Diet. Other defi- 11. See definitions, Cent. Diet. Further
nitions. Evidence which tends to establish definitions. The meaning of the word rele-
any part of plaintiff's case or dispute any vant, as applied to testimony, is that it di-
defense thereto is admissible as against the rectly touches upon the issue which the
objection that it is irrelevant. Tifton, T. parties have made in their pleadings, so as
& (J. Hy. Co v. Butler, 4 Ga. App. 191, 60 to assist in getting at the truth of it. Moran
S. E. 1087 (1908). In Trull v True, 33 Me. v. Abbey, 58 Cal. 163 (1881); Porter' v.
367, it was held that " testimony cannot be Valentine, 41 X. Y. Supp. 507, 18 Misc.
excluded as irrelevant which would have a 213 (1896); Platner v. Platner, 78 N. Y.
tendency, however remote, to establish the 90,95 ( 1879) ; Walls v. Walls, 170 Pa. 48, 32
probability or improbability of the fact in Atl. 649 (1895); 3 Chamb., Ev., 1715, n 2.
issue." State v. O'Neill, 13 Or. 183. 9 Pac. 12. 3 Chamb., Ev., 1715, n. 3.
286 (1885). "Relevant." as applied to tea- 13. 3 Chamberlayne, Evidence, 1717
timony, means that the testimony bears \ipon 14. Indian Evidence Act. 1 of 1872. Intro-
the issues so as to tend to prove or disprove duction by James Fitzjames Stephen,
them, but testimony may be relevant if it is 15. Plumb v. Curtis, 66 Conn. 154, 33 Atl.
only a link> in the chain of evidence tending 998 (1895); Seller v. Jenkins, 97 Ind. 430
to prove the issues by reasonable inference. (1884): Louisville Ry. Co. v. Ellerhorst, 33
though not directly bearing upon them. San Ky. L. Rep. 605, 110 S. W. 823 (1908) ; Fish-
Antonio Traction Co. v. Higdon (Tex. Crim. man v. Consumers' Brewing Co., 78 X. J. L.
App 1910). 123 S W. 732. Relevancy is that 300, 73 Atl. 231 (1909); McXair v. Na-
which conduces to the proof of a pertinent tional Life Ins. Co., 13 Hun (X. Y.) 144
hypothesis. Hence it is relevant to put in (1878); 3 Chamb., Ev., 1717, n. 2.
487
STEPHEN'S DEFINITION.
other when one is, or probably may be, or probably may have been the cause
of the other ; the effect of the other ; an effect of the same cause ; a cause of the
same effect ; or when the one shows that the other must or cannot have occurred,
or probably does or did exist, or not ; or that any fact does or did exist, or not,
which in the common course of events would either have caused or have been
caused by the other." 10 The definition in the third Edition of his instructive
Digest of the Law of Evidence, though made cautious by acute though always
appreciative and friendly criticism, does not greatly differ from that of the
first. " The word ' relevant ' means that any two facts to which it is applied
are so related to each other that according to the common course of events one
either taken by itself or in connection with other facts proves or renders prob-
able the past, present, or future existence or non-existence of the other/' 17
642. Stephen's Definition Considered. 18 That the foregoing definition of
relevancy is an excellent statement of that relation between facts which has
hereinbefore been spoken of as probative 19 seems unqeutionable. Equally obvi-
ous is it that as a definition of relevancy in general, it is insufficient. It takes
no account of those important relations of facts to the proper conduct of judicial
processes of reasoning which have been denominated constituent 20 or delibera-
tive 21 relevancy. But, for practical objects, the definition suffices. 22
16. Digest Law of Evid. (1st Ed.) Ch. 2,
Art. 9.
17. Stephen, Dig. Law of Evid. (3rd Ed.)
Ch. 1, Art. 1.
18. 3 Chamberlayne, Evidence, 1718-
1718m.
19. Supra, 640; 3 Chamh.. Ev., 1712.
20. Supra, 640 : 3 Chamb.. Ev., 1713.
91. Supra, 640; 3 Chamb., Ev., 1714.
22. 3 Chamb.. Ev., 1718. For a full dis-
cussion of Stephen's theory and a critical
consideration of Stephen's definition, see 3
Chamb., Ev., 1716, 1717. 1718, 1718a, 1718b,
1718c, 1718d, 1718e, 1718f, 1718g, 1718h,
1718i, 1718.J, 1718k, 17181, 1718m. See also
Discussion of Substantive and Adjective Law,
3 Chamb., Ev., 1719, 1720, 1720a, 1720b,
1720c, 1720d.
CHAPTER XXIV.
INCORPORATION OF LOGIC.
Incorporation of logic,. 643.
logic defined, 644.
propositions, 645.
mental operations, 646.
intuitions, 647.
deductive operations, 648.
inductive reasoning, 649.
inference from experience, 650.
deduction the basis of induction, 651.
mental certainty, 652.
hypothesis, 653.
643. Incorporation of Logic. 1 At this point of the consideration of the
general topic of Reasoning by the court or by witnesses, it seems essential to
make what is, in appearance at least, a digression.
The subject in hand, the modern law of evidence, properly embraces, with im-
material exceptions, the consideration of but two main factors each invoking
and conditioned by the true laws of thought, canons of correct reasoning.
First is the appropriate judicial province of the jury, the ascertainment of
truth, the reality of things, as to the res gestae. Second, and of still higher
social import as an integral part of the law of evidence, is the judge's executive
function of administration, using sound legal reasoning for the attainment
of justice. The result is the practical incorporation, by reference, of the rules
of logic into the law of evidence. This reference to logic, as the science of
the laws of thought, is incessant, though usually tacit. At every turn in the
judicial work of the jury or the executive administration of the court, wherever
action of any sort is to be taken by either branch of the tribunal, the standards
prc>cribod by logic are constantly applied and regularly enforced.
644. [Incorporation of Logic] ; Logic Defined. 2 " Logic," says Mr. John
Stuart .Mill/* ''comprises the science of reasoning, as well as an art founded
on that science." The important fact to observers regarding this familiar
definition is that logic refers simply to reasoning itself and is in no way con-
cerned as to the subject, matter to which that reasoning is applied. It is a
1. 3 rhar.iUTlnyne, Evidence, 1721. 3. Mill's Logic. Intro. 2 (8th Ed.), 18.
2. 3 Chamberlayne, Evidence, 1722.
488
489 PROPOSITIONS. 645-647
regulator of the means by which belief may properly be engendered. The
object of the belief is immaterial. " Logic is the common judge and arbiter
of all particular investigations. It does not undertake to find evidence, but
to determine whether it has been found. Logic neither observes, nor invents, nor
discovers ; but judges." 4 The science of the laws of reasoning, the limitations
of logic, is thus seen to deal only with the modes of thought.
645. [Incorporation of Logic] ; Propositions. 5 While Stephen, as is well
known, indicates as the objective to which evidence is to be offered, what he
terms '* facts in issue " it is, nevertheless, fairly obvious that his critic in
the Solicitors Journal 6 is entirely right in saying that the object to be estab-
lished by proof is not a fact but a proposition. The purpose of evidence, proof
by the use of inference, is the creation of a belief in the truth or actuality of
something. " Whatever can be an object of belief or even of disbelief," says
.Mr. Mill, 7 "must when put into words assume the form of a proposition."
It may, accordingly, be profitable to consider, in barest outline, the nature of
propositions. A proposition is defined by logic as a sentence which affirms or
denies. 9
The law of evidence has to do only with what is placed in issue by the plead-
ings, what has a past or present existence and which may be called a proposi-
tion of fact.
646. [Incorporation of logic] ; Mental Operations. 10 In view of the vast
_
range of subjects to which a court for purposes of abjudication may be called
upon to apply the reasoning faculty, and the almost innumerable administra-
tive connections in which it may be required to apply reason to judicial prob-'
lems, it may fairly be said that the law of evidence is limited to no particular
form of mental operation specialized in the law of logic. Still, as has been
observed, the main processes of judicial reasoning are three : proving by
facts probatively relevant, measuring facts constituency relevant, and weighing
by means of facts characterized by deliberative relevancy.
647. [Incorporation of Logic; Mental Operations]; Intuition. 11 Most un-
controvertible in its effect in the production of belief as to the existence of a
mental impression regarding any fact, physical or psychological, is that tran-
scendent property of the mind denominated intuition. Intuition, the mental
operation by which consciousness becomes aware of the results of sense-per-
4. Mill's Logic. Intro. 5 (8th Ed.), 21. sertion about it. The expression of this men-
5. 2 Chamberlayne, Evidence, 1723, tal assertion or judgment in language is a
1724. proposition." Jones, Logic Inductive and De-
6. 2.0 Sol. Jour. p. 857. ductive. p. 66.
7. Mill Logic, i 21, P. 12a quoted in Gul- 9. Whately Logic, 41, quoted In Gulson
son, Philosophy of Proof, 52. Philosophy of Proof. 52.
8. " Introspection will show at once that 10. 3 Chamberlayne, Evidence, 1725.
when we hold an object before the mind, there 11. 3 Chamberlayne, Evidence, 1726-
is an inevitable tendency to think some as- 1728.
648, 649 INCORPORATION OF LOGIC. 490
ception or observation is carefully to be distinguished, in connection with the
law of evidence, from inference, the reasoning of proof. Intuition seems to be
not so much a branch of reasoning as engaged in presenting, to the witness or
to the tribunal (according to whether the observation is made in pais or in the
court room), the data or raw material upon which reasoning is based. It is,
therefore, a mental operation of the highest importance and most intimate in
connection with legal logic.
648. [Mental Operations] ; Deductive Keasoning. 12 Every instance of de-
duction is conducted by the use of two propositions which are, for that reason,
called premises. 13 The truth of these, or, in case of a fact, their existence,
being assumed, the conclusion, the truth of a third proposition is logically
deduced, or inferred, by an act of the reasoning faculty. 14 Deduction, as un-
derstood in logic, is that process of " reasoning, which consists in combining
two or more general propositions synthetically, and thus arriving at a con-
clusion which is a proposition or truth of less generality than the premises,
that is to say, it applies to fewer individual instances than the separate premises
from which it was inferred." 15 The concluding from generals to particulars
characteristic of deduction is in main conducted by the use of the syllogism.
Fordhe purposes of the law of evidence much of this is usually syncopated;
and the varieties in the subdivision of the syllogistic form of reasoning are
greatly restricted. The major premise, the first and more comprehensive of
the two, is usually suppressed. Xo one cares to be told nor would a court con-
sent to waste the time called for in hearing, still less in proving, that all men
are mortal.
649. [Mental Operations] ; Inductive Reasoning. 16 Induction may be de-
fined as that process of reasoning which consists in combining less general or
even individual facts into more general propositions, truths, or so-called laws
in the natural world or in the domain of conduct and other human affairs.
" An Induction, that is an act of Inductive reasoning, is called Perfect
when all the possible cases or instances to which the conclusion can refer, have
been examined and enumerated in the premises. If, as usually happens, it is
impossible to examine all cases, since they may occur at future times or in dis-
tant parts of the earth, or other regions of the universe, the Induction is called
Imperfect." Induction observes uniformity of operation in the natural world
12. 3 Chamberlayne, Evidence, 1728a- logic, a 'syllogism.'" Gulson, Philosophy of
1729. Proof, 130.
13. Whately, Logic. 17. 15. Jevons, Element. Logic, ch. 25, p. 210.
14. " Every conclusion or inference is in " An inference from a law or general prin-
reality deduced or drawn from two propo- ciple to some consequence of the principle is
aitions or premises, which, together with the a deductive inference." Jones, Logic Tnduc-
conclusion itself, are styled an 'argument,' tive and Deductive, p. 111.
or, in the more strictly technical language of 16. 3 Chamberlayne, Evidence, 1730-
1732.
491 EXPEBIENCE, 650-652
or in that of human conduct and it infers therefrom that what is true in certain
observed instances will, by reason of this uniformity, continue to be so in all
other cases.
650. [Mental Operations] ; Inference from Experience. 17 In the process of
reasoning, so far as this is deductive and confined to objective relevancy, a
probative fact, factum probans, recognized by the mind as being within the
scope of the general proposition which constitutes the major premise is estab-
lished by evidence, and thus forms the minor premise of the syllogism. The
deduction of logical reasoning from these two premises is a conclusion which
establishes, with a more or less probability, the existence of a factum probandum.
It will be observed that the only point at which evidence itself is applied is the
minor premise ; the major having been tacitly assumed as a matter of com-
mon knowledge and the conclusion being reached by an act of judgment, i.e.,
an inference which indeed was implicit in the mental act which recognized the
relevancy or connection between the fact offered in evidence as a minor premise
and the general proposition of experience used as a major. Such continues to
be the fact in the other stages of any direct line of proof.
651. [Mental Operations] ; Deduction the Basis of Induction. 18 The relation
between induction and deduction goes further. Each real deduction or in-
ference is based upon a major premise in the form of a general proposition
which is itself, as has been seen, reached as a matter of induction. This,
however, is by no means all. Every act of observation used in the induction
itself is made effective by a preliminary deduction from a general proposition
still more comprehensive which has been, in its turn, obtained by means of a
prior induction. Even the fundamental general proposition which is, in most
cases, the announcement of a uniformity, natural or moral, that what is true of
certain things in a class or placed under a common designation will be found to
be true of all of them, is itself the result of a large number of observed in-
stances of the application of such a rule. Tn the average act of induction, this
major proposition of uniformity is suppressed. The alternation of induction
and deduction is the same in case of direct or circumstantial evidence: the
difference being, that in case of circumstantial evidence, additional terms in
the series are needed before the ultimate factn probanda are reached.
652. [Incorporation of logic] ; Mental Certainty. 19 It will be at once found
that according as the mental process emploved by it is that of intuition, on
the one hand, or inductive and deductive reasoning, on the other, will the degree
of mental certainty produced in the mind of a tribunal in connection with proof
of a fact be found to vary. Where the mental action is intuitive, the effect is
17 3 Chamberlayne, Evidence, 1733, 19. 3 Chamberlayne, Evidence, 1736-
1734. 1740.
18. 3 Chamberlayne, Evidence, 1735.
653 INCORPORATION OF LOGIC. 492
demonstration. Inductive and deductive reasoning can produce in the mind of
a court or jury only that lower form of certainty properly classed as moral.
As commonly employed in connection with the law of evidence, a demonstra-
tion is an act or series of acts of intuitive reasoning which produce upon the
mind of a person to be affected an absolute certainty of mental conviction.
* Mental certainty may arise by direct observation by sight or hearing, which
observation is however subject to error especially in case of the untrained ob-
server, or it may arise through mathematical or other hypothetical reasoning.
The court itself may as in case of experiments conducted in court use its in-
tuitive faculties. However in most cases all that can be accomplished is proof
to a moral certainty or probability.
653. [Incorporation of Logic] ; Hypotheses. 20 A general rule of administra-
tive action, modified by various considerations to which attention is soon to be
called, is that either party may prove such facts as are reasonably necessary to
substantiate his hypothesis or theory of the case or to invalidate that of his
opponent. Strictly speaking, the term hypothesis may well be specifically
applied to proof of a particular fact or to anv relevant existence, e.g., the
credibility of a witness. As commonly employed, however, the use of a term is
almost exclusively related to the question as to what are the actual res gestae
facts involved in any particular inquiry. Speaking- generally, wore the res
gestae of the case established, by agreement or otherwise, the need for hypothesis
would not arise. The inquiry, under such circumstances, would be merely
one of constituent relevancy, as to what the res aestne amount to, in terms of
law or of fact. As the res gestae, however, are disputed in most trials at law,
it would be fairly accurate to restate the administrative rule in question by say-
ing that, in general, a litigant will bo allowed to introduce into evidence such
probatively relevant facts as are reasonably necessary to establish his hypothesis
as to what the res gestae facts actually are.
The hypothesis of the litigant having the burden of proof necessarily is, in
the normal case, that the res gestae facts, sufficient to establish the right or
liability asserted, actually exist. His claims for administrative indulgence in
the range and variety of his proof necessarily depend in large measure upon
whether he is able to produce direct evidence, i.e., the statements of witnesses
or the declarations of documents as to the existence of the res gestae : or is, on the
other hand, compelled to produce other probative facts in proof of these res
gestae. His main position, however, as exhibited in his hypothesis, is that
these res gestae facts actually exist. If the right in pursuance of which the
actor claims administrative indulgence be the right to prove his case that of
the non-actor in so doing is the equally important forensic right of testing the
case of his adversary. It is the object of the actor, therefore, to present a case
of maximum efficiency for the establishment of the res gestae claimed in his
20. 3 Chambeslayne, Evidence, 1740a- 1740c.
493 HYPOTHESES. 653
hypothesis and meet, so far as he is able, attacks made upon the credibility of
the witnesses or the existence of these res gestae. It is sufficient for the non-
actor if he should prevent the accomplishment of the actor's purpose. He
may, therefore, content himself with testing, probing, weighing.
CHAPTER XXV.
PROBATIVE RELEVANCY.
Canons of relaxation; claim of the Crux, 654.
direct and circumstantial evidence, 655.
inherent difficulty of proof, 656.
Canons of requirement; must accord equal privileges, 657.
definiteness demanded, 658.
time must be economized, 659.
jury must be protected, 660.
fact must not be remote, 661.
time, 662.
proving the res gestae, 663.
optional admissibility, 664.
consistent and inconsistent facts, 665.
explanatory or supplementary facts, 666.
negative facts, 667.
preliminary facts, 668.
Probative relevancy; objective and subjective, 669.
objective; ancillary facts, 670.
subjective, 671.
654. Canons of Relaxation; Claim of the Crux. 1 The right of a party to
prove the res gestae of his case is a substantive one and has already been stated
as a matter of right. 2 In dealing with the admissibility of any particular fact
not strictly within the field of the res gestae the judge is seeking to harmonize,
in a rational way, the proper influence of several administrative principles.
There are what may be called Canons of Relaxation and certain other prin-
ciples of judicial administration which may be designated Canons of Require-
ment. In case of most disputed questions of fact there is a crux or hinge upon
which it will be found to turn. It may be the existence of a particular fact,
the credibility of a special witness. Strong administration, therefore, makes
all efforts to be sure that this particular point is decided right. Special relaxa-
tion is called for and will be accorded to the use of any fact which may reason-
ably tend, even in a somewhat remote degree, to establish the exact truth re-
garding so important a matter. 3
1. 3 Chamberlayne, Evidence, 1742. 3. 3 Chamb., Ev., 1740d.
2. Kuprn, 149 et seq.; 1 Chamb., Ev.,
334 <" "rq.
494
495 CIRCUMSTANTIAL EVIDENCE. 655, 656
655. [Canons of Relaxation] ; Direct and Circumstantial Evidence. For
obvious reasons, the presiding judge will accord a wider range of proof to one
who is seeking to establish the res gestae by proof of circumstantial evidence
than to one whose endeavor is to show the res gestae by direct proof, 4 i.e.. by
the statements of eye witnesses of the transactions themselves. Facts not sus-
ceptible of direct observation are, in most cases, necessarily established by cir-
cumstantial evidence. Such evidence is frequently more satisfactory and con-
vincing in character than direct testimony \vould have been. 5 Administrative
necessity for the securing of proof of essential facts in the only way practically
available may go so far as to permit the use of deceit, dissimulation, fraud, or
even grave illegality for the purpose of obtaining testimony. As a legitimate
method of corroboration 7 and even, in many cases involving the employment of
circumstantial evidence, as a necessary mode of proving a prima facie case a
party may properly negative any adverse iniirmative suggestion or alternative
hypothesis. 8
656. [Canons of Eelaxation] ; Inherent Difficulty of Proof. Xot only will
administrative indulgence be accorded a party whose case involves an ex-
tended use of the element of inference between the factum probam and the
factum i>robandum, the same canon is applied where the witness himself is
forced to make a large use of the element of inference. 9
Ancient Facts. Consideration is given in another place 10 to the judicial
relaxation which is caused by the inherent difficulty of proving ancient facts. 11
4. Supra, 14; 1 Chamb., Ev., 15. evidence that it was started by a train
5. Kennedy v. Aetna Life Ins. Co., 148 111. Hewitt v. Pere Marquette R. Co., 171 Mich.
App 273 (1909), judg. aff'd 242 111. 396, 90 211, 137 N. W. 66, 41 L. R. A. (N. S.) 635
N. E. 292; 3 Chamb, Ev., 1740e. n. 5. (1912).
Evidence of financial and marital condition in 6. People v. Bunkers, 2 Cal. App. 197. 84
damage case. See note, Bender Ed., 118 N. Pac. 364, 370 (1906): Ford v. State, 124
Y. 95. Of financial condition of defendant Ga. 793, 53 S. E. 335 (1906); 3 Chamb., Ev.,
in tort case. See note, Bender Ed., 125 X. Y. 1740e, nn. 6, 7, 8.
224. Propriety of parol evidence as to prop- 7. Infra, 670; 3 Chamb.. Ev., 1768.
erty of testator See note, Bender Ed., 112 8. Thus, on a prosecution for kidnapping,
N. Y. 137. in addition to showing that the child was
Negligence. Evidence to show negligence stolen, the impossibility of his being drowned
must be clear and convincing and it is not without observation in a nearby Sound may
enough to show by speculation that the ac- be established by the prosecution State v.
cident was due to negligence Duncan v. Harrison, 145 N. C. 408, 59 S. E. 867 (1907).
Atchison Topeka & Santa Fe R. Co. 86 Kan 9. 3 Chamb., Ev.. 1741.
112, 119 Pac. 356, 51 L. R. A. (N. S.) 565 10. Infra, 938: 4 Chamb., Ev.. 2960
(1911) 11. Thus, evidence will be received from
Origin of Fire. Evidence is not to be old inhabitants of the region affected that
disregarded or swept aside simply because the bed of a stream has slowly and gradu-
it is circumstantial. So the origin of a fire- ally changed its position. Coulthard v. Mc-
may be proved by circumstantial evidence Intosh, 143 Iowa 389, 122 N W. 233 (1909K
Miller v. Northern Pacific R. Co., 24 Idaho Marshland allotments. A searcher of an-
567, 135 Pac. 845, 48 L. R. A. (N. S.) 700 cient records may be allowed to testify as
(1913). The mere fact that a fire originated to the facts which appear of record regard-
on a railroad right of way Is not sufficient ing allotments of "^-^hlnrd made in 1654
656 PROBATIVE RELEVANCY. 496
Facts of Family History. The administrative indulgence which the court
accords to the inherent difficulty of proving facts of family history is treated
in connection with the subject of Pedigree. 12
Identity. Prominent among facts proof of which presents inherent diffi-
culty is that of identity. A wide range of circumstantial evidence will, there-
fore, usually be received. 13 In such a connection, even statements in their
independently relevant capacity, e.g., those showing special knowledge 14 are
admissible. In like manner, the fact that a person has lived in a particular
residence, sojourned in a certain place/ 5 country or state 16 may be received
as significant. A witness who testifies to the conversation conducted by means
of a telephone may properly identify the speaker at the other end by means of
his voice. 17 The identification may, however, be established later in other
ways. 18
Mental Condition. Mental conditions present such an inherent difficulty
in proof as authorizes relaxation in the strict requirements of relevancy.
Whether the condition in question be one of soundness or its opposite it may,
as is more fully seen elsewhere, 19 be shown by the inference of observers of its
manifestations. 20 Any relevant act fairly indicative of the condition of the
person's mind will be received in evidence. 21 But, where the inquiry is not one
relating to genealogy, the fact of insanity cannot be shown by the hearsay declara-
tions of members of the person's family. 22 A fortiori reputation in the family
is rejected. 23 Likewise, general reputation in the community. 24 Among facts
to which a witness may testify are those which are psychological. 25 A person
conscious of the existence of a mental condition or state, 26 on his own part
and later. Shinnecock Hills & Peconic Bay 19. Infra, 701, et seq; 3 Chamb., Ev.,
Realty Co. v. Aldrich, 116 N. Y. Supp. 532, 1892, 2006 et seq.
132 App. Div. 118 (1009), judg. aff'd 200 20. Wells v. Houston, 29 Tex. Civ. App. 619,
N. Y. 533, 93 N. E. 1132 (1910). 3 Chamb., 69 S. W. 183 (1902).
Ev., 1741a, n. 2. 21. In re Mullin, 110 Cal. 252, 42 Pac.
12. Infra, 937; 4 Chamb., Ev., 2952. 645 (1895); Waterman v. Whitney, 11 N. Y.
13. State v. Ah. Chuey, 14 Nev. 79, 33 Am. 157, 62 Am. Dec. 71 (1854) ; 3 Chamb., Ev.,
Rep. 330 (1879) ; Allen v. Halsted (Tex. Civ. 1741d, n. 3.
App. 1905), 87 S. W. 754. 22. People v. Koerner, 154 N. Y. 355, 373,
14. Infra, 850; 4 Chamb., Ev., 2667. 48 N. E. 730 (1897).
Cuddy v. Brown, 78 111. 415 (1875) ; Ameri- 23. Walker v. State, 102 Ind. 502, 1 X. E.
can L. Ins., etc., Co. v. Rosenagle, 77 Pac. 856 (1885); People v. Koerner, supra; 3
507 (1875); 3 Chamb., Ev., 1741c. n. 2. Chamb., Ev., 1741d, n. 5.
15. Wise v. Wynn, 59 Miss. 588, 42 Am. 24. State v. Holt, 47 Conn. 518, 36 Am.
Rep. 381 (1882); Byers v. Wallace, 87 Tex. Rep. 89 (1880); State v. Coley, 114 N. C.
503, 28 S. W. 1056, 29 S. W. 760 (1895). 879, 19 S. E. 705 (1894); 3 Chamb., Ev. r
16. Byers v. Wallace, supra. 1741d. n. 7.
17. National Bank of Ashland v. Cooper, 25. Sharpe v. Hasey, 141 W 7 is. 76, 123 X.
86 Neb. 792, 126 N. W. 656 (1910). W. 647 (1909).
18. Miller v. Leib, 109 Md. 414, 72 Atl. 466 26. People v. Weil. 244 111. 176. 91 N. E.
(1909); People v. Strollo, 191 N. Y. 42, 83 112 (1910); Richards v. U. S., 175 Fed. 911,
N. E. 573 (1908) ; 3 Chamb., Ev., 1741c, n. 99 C. C. A. 401 (1909) ; 3 Chamb., Ev.,
9. 1741d, n. 11.
497
DIFFICULTY OF PROOF.
656
may testify as to it. But a party accused of crime 27 or any other witness will
not be permitted to testify as to his motive, 28 purpose 29 or intention 30 unless
these psychological facts have some material effect upon the right or liability
involved.
Mental State. Some relaxation in the strict rules of relevancy is impera-
tively required for the establishment of a mental state. 31 The mental state to
be proved must, as a matter of course, be objectively relevant. 32 Thus, for ex-
ample, in any case where the consequences of conduct are involved, an undis-
closed intention may be strictly irrelevant. If so, no evidence on the poiut can
be received. 33 Evidence of good faith may be rejected as irrelevant because
immaterial. Should the fact of good faith be relevant, however, in any of
its phases, to an issue in the case, evidence of it may be received. Indeed, the
person in question may testify to it himself. 34 A witness may give evidence
as to the existence of any mental state of his own mind of which he is con-
scious, should the fact be material. 35 He is not, as a rule, entitled to testify
directly as to the mental state of any other person. 36 The declarations of a
party or other person may be shown as manifestations of relevant mental state,
whether they be oral 37 or in writing. 38 The existence of various mental
states, e.g., knowledge, 39 notice, 40 and the like 41 may satisfactorily be estab-
lished by proof of what happened upon other occasions.
27. Rose v. State, 144 Ala. 114, 42 So. 21
(1905); Gordon v. Com. (Ky. 1910), 124 S.
W. 806.
28. Crumpton v. State, 167 Ala. 4, 52 So.
605 (1910).
29. Gray v. Strickland, 163 Ala. 344, 50 So.
152 (1909).
30. Pate v. State, 162 Ala. 32, 50 So. 357
(1909).
31. White v. White, 76 Kan. 82, 90 Pac.
1087 ( 1907 ) ; Cook v. Carr, 20 Md. 403
(1863).
32. Millspaugh v. Potter, 71 N. Y. Supp.
134, 62 App. Div. 521 (1901) ; Globe Ins. Co.
v. Hazlett, 1 Phila. (Pa.) 347 (1852); 3
Chamb., Ev., 1741e. n. 3.
33. Sampson v. Hughes, 147 Cal. 62, 81 Pac.
292 (1905); Dunbar v Armstrong, 115 111.
App. 549 (1904): Tallant v. Stedman, 176
Mass. 460, 57 X. E. 683 ( 1900) : Fresno Home
Packing Co. v. Turtle & Skidmore. 117 X. Y.
Supp. 1134, 132 App. Div. 930 (1909); 3
Chamb., Ev., 1741e, n. 4.
34. Thatcher v. Phinney. 7 Allen (Mass.)
146 (1863); Hubbell v. Alden, 4 Lans. (X.
Y.) 214 (1870) : Moore v. May. 117 Wis. 192.
94 X. W. 45 (1903) ; 3 Chamb., Ev., 1741e,
n. 5.
35. Fagan v. Lentz, 156 Cal. 681, 105 Pac.
951 (1909); Partridge v. Cutler, 104 111.
App. 89 (1902); Blaney v. Rogers, 174
Mass. 277, 54 N. E. 561 (1899); Grout v.
Stewart, 96 Minn. 230, 104 X. W. 966 (1905) ;
Hill v. Page, 95 N. Y. Supp. 465, 108 App.
Div 71 (1905); Tucker v. Hendricks. 25
Ohio Cir. Ct. 426 (1903) ; Arnold v. Cramer,
41 Pa. Super. Ct. 8 (1909) : 3 Chamb., Ev.,
1741e, n. 6.
36. Spaulding v. Strang, 36 Barb. (X. Y.)
310 (1862).
37. Perry v. State, 110 Ga. 234, 36 S. E. 781
(1900); Jacobs v. Whitcomb, 10 Cush.
(Mass.) 255 (1852): People v. Colmey, 188
N. Y. 573, 80 X. E. 1115 (1907), afTg judg.
102 X. Y. Supp.^ 714, 117 App. Div. 462;
Baker v. Toledo &. I. Ry.. 30 Ohio Cir. Ct. 78
(1907) : 3 Chamb., Ev., 1741e, n. 10. See
also, infra, 847 et seq : 4 diamb.. Ev.,
2643 et seq.
38. Long v. Booe, 106 Ala. 570, 17 So. 716
(1894).
39. Joseph Taylor Coal Co. v. Dawes, 220
111. 145. 77 X. E. 131 (1906): Hadtke v.
Grzyll, 130 Wis. 275, 110 X. W. 225 (1907).
40. Hanselman v. Broad, 99 X. Y. Supp.
401, 113 App. Div. 447 (1906).
41. Baldwin v. People's Ry. Co., 7 Pennewv
(Del.) 81, 76 Atl. 1088 (1908).
657 PROBATIVE RELEVANCY. 498
Moral Qualities. 'Moral qualities present even greater difficulties in proof
than those which inhere in the establishment of mental conditions or states.
Under these circumstances, procedure has adopted a formal, semi-mechanical
expedient of somewhat doubtful utility. 42 It proves moral qualities by showing
their effect upon persons with whom the individual in question habitually comes
in contact. In case either of the veracity of a witness 43 or some other relevant
trait of character, 44 the only attempt made is to show the reputation in the
community on the subject. 45 But reputation itself, in many cases is not pro-
bative 4tt of the existence of a particular trait of character, e.g., chastity 47 or
loyalty, 48 or of character as a whole.
Value. The special relaxation accorded by administration to the proof of
the value or price of real or personal property is given elsewhere. 49
"State of the Case." It is not to be inferred, from what has been said,
that a party is at liberty, as a matter of right, to prove a fact, even one in the
res (jestae, irrespective of what is commonly called l< the state of the case." Ad-
ministrative relaxation, like any other privilege, may be waived. If a fact be
already sufficiently proved 50 or be admitted 51 or if, though not distinctly ad-
mitted, its existence is not seriously controverted 32 it is within the reasonable
exercise of the administrative power of the presiding judge to reject the evi-
dence.
657. Canons of Requirement; Must Accord Equal Privileges. Any privilege
accorded one of the parties which may prejudice his opponent the latter may
claim the right to offset in any appropriate way. Thus, a party who asks for
the inferences or conclusions of a witness, cannot successfully object to a pur-
suance of the same method of inquiry. 53 Suppose, however, that a party,
42. Infra, 1037; 4 Chamb., Ev., 3310. Old Dominion S. S. Co., 102 X. Y. 660, 6 X.
43. 3 Chamb., Ev., 174tf, n. 4. K 281) (1886); 3 Chamb., Ev., 1742, n.
44. Infra, 1033 et seq.; 4 Chamb, Ev.. 2.
3288 et seq. 52. Cole v. Curtis, 16 Minn. 182 (1870);
45. Boies v. McAllister, 12 Me. 308 (1835); Austin v. Austin, 45 Wis. 523 (1878).
Hart v. Reynolds, 1 Heisk. (Tenn.) 208 53. Provident Sav. Life Assur. Soc. v. King,
(1870). 216 III. 416. 75 X. E. 166 (1905) ; Ahnert v.
46. Baldwin v. Western R. Corp., 4 Gray Union Ry Co of Xew York, 110 X. Y. Supp.
(Mass ) 333 (1855) ; Cook v. Parham, 24 Ala. 376 (1908) ; 3 Chamb., Ev., 1742a, n. 2.
21 (1853). Relevant evidence. Where one of the liti-
47. Boies v. McAllister, supra. gants has introduced evidence upon a given
48. Hart v. Reynolds, supra. topic sustaining some logical relation to the
49. Infra, 762 et seq.; 3 Chamb., Ev., case he must, as a rule, be content that his
2175a et seq. opponent should bring forward countervail-
50. State v. Trimble, 104 Md. 317, 64 Atl. ing evidence on the same point. Waters v.
106 (1900): Allendorph v. Wheeler, 101 Rome & X. Ry. Co., 133 Ga. 641, 66 S. E.
X. Y. 649, 5 X. E 42 (1886) ; 3 Chamb., Ev.. 884 (1909) : Peter v. Schult/, 107 Minn. 29,
1742, n. 1. 119 X. W. 385 (1909) ; Crawford v. Kansas
51. Batavia Mfg Co. v. Xewton Wagon Co.. City Stockyards Co., 215 Mo. 394, 114 S. W.
91 111. 230 (1878) : Scheibeck v. Van Derbeck, 1057 (1908) ; Whipple v. Farrelly, 121 X. Y.
122 Mich. 29, 80 X. W. 880 (1899) ; White v. Supp. 117, 136 App. Div. 587 (1910) ; Schmidt
499 DEFINITENESS. 658
having been indulged in the use of perfectly irrelevant testimeny, should object
when his adversary desires to enter upon a like inquiry in such a way as to
prejudice or mislead the jury. There is some, though rather doubtful, author-
ity to the effect that a party who has permitted such evidence to be received
against him may, as of right, present similar testimony, 011 his own behalf, on
the same subject. 04 The court, however, is justified in rejecting immaterial
evidence whenever objection is made. 35
A somewhat different situation is presented when the party who now offers
rebutting testimony may fairly be regarded as having himself been injuriously
affected by the immaterial facts originally offered. That the trial court may,
in discharge of its administrative powers, permit the present proponent to re-
pair any injustice which may have been done to him and receive the rebutting
immaterial evidence even against objection, is entirely clear. 56
658. [Canons of Requirement] ; Definiteness Demanded. Evidence may be
rejected because lacking in definiteness. 07 Xo fact or the inference to be
drawn from it can however properly be rejected as uncertain simply because,
standing alone, it may appear to be so. The evidence will be received as
definite if other evidence to make it so is produced or promised. 58 Legally,
that is certain which may be made so. It follows, a fortiori, that evidence
which is simply conjectural in its nature will properly be excluded. 59 The
court will, however, disregard the form of statement and seek the substance.
Should the witness, for example, see fit, for any reason, to testify that he
v. Turner, 27 Ohio Cir. Ct. R. 327 (1905) ; 3 55. San Diego Land, etc., Co. v. Neale, 88
Chamb., Ev., 1742a, n. 2. Cal. 50, 25 Pac. 977, 11 L. R. A. 604 (1891) ;
According- to the same rule in its re- Stapleton v. Monroe, 111 Ga. 848, 36 S. E.
verse form, a party who has objected to the 428 (1900); Farmers', etc., Bank v. Whin-
reception of a certain grade or species of evi- field, 24 Wend. (N. Y ) 419 (1840) ; 3
dence when tendered by his adversary, will Chamb., Ev., 1742a, n. 4.
not be permitted to secure the benefit of in- 56. Illinois Steel Co. v. Wierzbicky, 206
troducing it for himself. Shedd v. Seefeld, 111. 201, 68 X. E. 110 ( 1903 ); Treat v. Curtis,
126 111. App. 375 (1906) : Electric Carriage 124 Mass. 348 (1878) ; Waldron v. Romaine,
Call & Specialty Co. v. Herman, 123 X. Y. 22 X. Y. 368 (1860) ; Krause v. Morgan, 53
Supp. 231, 67 Misc. 394 (1910). Ohio St. 26, 40 X. E. 886 (1895); 3 Chamb.,
Completeness required. In cases where Ev., 1742a, n. 5.
the new evidence is required to complete 57. Hardwood Mfg. Co. v. Wooten, 126
that which has already been received, an Ga. 55, 54 S. E. 814 (1906); Phillips v.
additional administrative reason for receiv- Middlesex County, 127 Mass. 262 (1879);
ing the former is furnished. Chicago City Slack v. Bragg, 83 Vt. 404, 76 Atl. 148
Ry. Co v. Bundy. 210 111. 39, 71 X. E. 28 (1910): 3 Chamb., Ev., 1743, n. 1.
(1904); Buedingen Mfg. Co. v. Royal Trust 58. Ashley v. Wilson, 61 Ga. 297 (1878);
Co., 181 X. Y. 563, 74 X. E. 1115 (1905); Blauvelt v. Delaware. L. & W. R. Co., 206
Early v. Winn, 129 Wis. 201, 109 X. W. Pa. 141. 55 Atl. 857 (1903).
633 (1906) ; 3 Chamb., Ev., 1742a, n. 2. 59. Pond v. Pond, 132 Mass. 219 (1882) ;
54. Yank v. Bordeaux, 29 Mont. 74, 74 Pac. Charlton v. St. Louis & S. F. R. Co., 200 Mo.
77 (1903); Lessler v. Bernstein, 123 X. Y. 413, 98 S. W. 529 (1906); Xewell v. Doty,
Supp. 223 (1910) ; Warren Live Stock Co. v. 33 X. Y. 83 (1865) ; 3 Chamb., Ev., 1743,
Farr, 142 Fed. 116, 73 C. C. A. 340 (1906). n. 4.
659, 660 PROBATIVE RELEVANCY. 500
"guesses," 00 "presumes," 61 or "supposes" 62 any fact to exiit, or say he
has an " impression " 63 that a thing is so, when he really knows such to be
the case, his statement, conjectural in form, may be used as one of fact. An
inference which is speculative, not based upon observation or any fact established
in the case, is incompetent under this principle.*' 4
659. [Canons of Requirement] ; Time Must be Economized In exercising
administrative function the trial judge who at the stage of right was called
upon to hear all reasonable necessary evidence regardless of its consumption of
time, 6 '' may at this stage properly reject, at his option, evidence which for any
reason, fails to convince him that it will warrant using the court's time
which frequently is in reality the time of other litigants long enough to
hear it. 6tj The judge may properly refuse to consume time in hearing evidence
the effect of which, if any, would be slight.' 57 This is particularly true where
the party offering the evidence has, himself, suppressed important testimony. 88
660. [Canons of Requirement] ; Jury Must be Protected. 09 It is the duty of
the court to' keep the jury from being misled, 70 under the zeal or unscrupulous-
ness of counsel or their own inaptitude for the work in hand. 71 Where the
proof offered is that relating to a constituent or res yestae fact or to the
circumstantial evidence necessary to establish these 72 it may well be the right
of the proponent to insist that the evidence should be received whatever may
be its incidental effect upon the emotionalism of the jury. Where the stage
of res gestae proof has been passed, it is clearly not only within the power but
part of the administrative duty of the court to reject any evidence of op-
tional admissibility which should directly tend to induce the jury to employ
emotion rather than reason in reaching their decision. Thus, evidence should
be rejected which tends to prejudice the objecting party by exciting hostile
feelings on the part of the jury against him, or where the effect of the evi-
60. Louisville, etc., R Co. v. Orr, 121 Ala. 612, 74 N. W. 14 (1898) ; Moore v. U. S.,
489, 26 So 35 (1H98). 150 U. S. 57, 14 S. Ct. 26, 37 L. ed. 996
61. People v. Soap, 127 Cal 408, 59 Pac. (1893) ; 3 Chamb , Ev., 1744. n. 2.
771 (1899). 67. Home F. Ins. Co. v. Kuhlman, 58 Neb.
62. Chatfield v. Bunnell, 69 Conn. 511, 37 488, 78 N. W. 936, 76 Am St. Rep. 111.
Atl. 1074 ( 1897) ( 1899) ; Amoskeag Mfg Co. v. Head, 59 X. H.
63. State v Flanders, 38 N. H. 324 ( 1859) : 332 (1879) ; 3 Chamb., Ev . 1744, n. 3.
State v. Wilson, 9 Wash. 16, 36 Pac 967 68. Long v. Travellers' Ins. Co., 113 Iowa
(1894). 259. 85 N. W. 24 (1901); 3 Chamb., Ev.,
64. Borrett v Petry, 148 111. App. 622 1744. n. 4.
(1909); Weaver v. Richards, 156 Mich 320, 69. 3 Chamberlayne, Evidence, 1745.
120 N. W. 818 (1909) . Patten v Lynett, 118 70. Supra, 180; 1 Chamb., Ev., 386.
N Y. Supp. 185, 133 App. Div. 746 (1909); 71. Cunningham v. Smith, 70 Pa. 450
Winkler v. Bower & Mining Machinery Co., ( 1 872 ) .
141 Wia 244, 124 N. W. 273 (1910); 3 72. People v. Farrell. 137 Mich. 127, 100
Chamb., Ev., 1743, n 10. N. W. 264 (1904) ; Pease v. Smith, 61 N. Y.
65. Supra. 149, 157; 1 Chamb., Ev., 477 (1875); 3 Chamb., Ev., 1745, n. 4.
334 et seq., 358. 73. Swan v. Thompson, 124 Cal. 193. 56
66. Names v. Union Ins. Co., 104 Iowa Pac. 878 (1899); Stearns v. Reidy, 135 111.
501
TIME.
661, 062
dence offered would be to arouse the emotion of sympathy or other favorable
feeling on behalf of the proponent. 74 The judge may exclude a secondary grade
of evidence where primary proof to the same effect is already in the case. 75
661. [Canons of Requirement] ; Fact Must Not be Remote. 70 Evidence is fre-
quently and very properly rejected upon the ground that it is too remote. 77
As has been elsewhere indicated, 76 facts will not, as a rule, be admitted in evi-
dence when so remote from the res gestae fact as to fail to possess any appre-
ciable probative effect.
662. [Canons of Requirement] ; Time. 79 What facts possessing logical
relevancy to the existence of one in the res gestae will be rejected by the
court on the ground of remoteness in point of time will be found to be a function
of a number of variables. Much will depend in any instance upon the state
of the case, 80 and how necessary the evidence offered may be to the contention
of the proponent. Should the evidence offered be too remote in point of time
to be relevant at all it will of course be rejected. 81 The same result follows
clusively establishing that he was negligent
but as having an obvious bearing on the
matter. Mclntosh v. Standard Oil Co., 89
Kan. 289, 131 Pac. 151, 47 L. R A (N. S.)
730 (1913). The fact that at the time of
an accident a street car was being operated
in violation of an ordinance giving mail
wagons the right of way may be shown as
evidence of negligence. Bain v. Fort Smith
Light & Traction Co., Ark. , 172 S. W.
843, L. R. A. 1915 D 1021 (1915).
Evidence of defendant's wealth is only
admissible in cases where punitive damages
are recoverable and not in an action for alien-
ation of affections Phillips v. Thomas, 70
Wash. 533, 127 Pac. 97, 42 L. R. A. (N. S.)
582 (1912).
In estimating damages for land not taken
by a railroad the damage from dust and
noise and danger from fire may be consid-
ered. Lewisburg & N. R. Vo v. Hinds, 134
Tenn. 293, 183 S. W. 985, L. R. A. 1916 E
420 (1916).
79. 3 Chamberlayne, Evidence, 1747.
80. Supra, 654: 3 Chamb.. Ev., 1742.
Davis v. City of Adrian. 147 Mich. 300, 110
N. W. 1084 (1907): Nelson v. Young, 87
N. Y. Supp. 69, 91 App. Div. 457 (1904):
McQuiggan v. Ladd. 79 Vt. 00, 64 Atl. 503
(1906): 3 Chamb., Ev., 1747, n. 1.
81. Goodwin v. State, 96 Ind. 550 (1884) ;
Reed v Manhattan Deposit & Trust Co., 198
Mass. 306, 84 N. E. 469 (1908): New Era
Mfg. Co v. O'Reilly. 197 Mo. 466, 95 S. W.
322 (1906) ; Gibson v. American Mut. L. IM.
119. 25 N. E. 762 (189U); Hoag v. Wright,
54 X. Y. Supp. 1)58, 34 App. Div. 260 (1898) ;
3 Chamb., Ev., 1745, n. 5.
74. Hutchins v. Hutchins, 98 N. Y. 56
(1885) ; 3 Chamb., Ev., 1745, n. 6.
75. Steltemeier v. Barrett (Mo. App. 1909),
122 S. W. 1095.
76. 3 Chamberlayne, Evidence, 1746.
77. Com. v. Parsons, 195 Mass. 560, 81
N. E. 291 (1907); State v. Newcomb, 220
Mo. 54, 119 S. W. 405 (1909); Carhart v.
State, 100 N. Y. Supp. 499, 115 App. Div. 1
(1906) ; 3 Chamb., Ev., 1746, n. 1.
78. Xupra, 157; 1 Chamb., Ev., 358
Of defective places before and after acci-
dent. See note, Bender Ed.. 122 N. Y. 408.
Of subsequent conditions when negligence
claimed See note, Bender Ed , 109 N. Y.
243. Correction of defect after accident may
not be shown. See note, Bender Ed.. 118
N. Y. 425. Improper to show subsequent
repairs of defects in personal injury case.
See note, Bender Ed., 127 N. Y. 639. Change
in situation after accident as evidence of.
See note. Bender Ed., 73 N Y 468. Evidence
of suspicion of felony may be given to miti-
gate the damages in an action for false im-
prisonment, as where a father has the plain-
tiff arrested for seduction after she has told
him that the defendant had seduced her.
Rogers v. Toliver, 139 Ga. 281, 77 S. E. 28,
45 L. R. A. (N. S.) 64 (1913).
Evidence of negligence. On the issue of
negligence evidence that the party was in-
toxicated is alwavs admissible not as con-
663,664 PROBATIVE RELEVANCY. 502
where it is of little practical value. A continuing fact, cannot, however, be
said to be too remote for relevancy so long as the logical inference of con-
tinuance 82 rends to show that the condition or other fact still existed at the
time rendered important in the case. 83
r
663. [Canons of Requirement] ; Proving the Res Gestae. 84 The right of a
party to prove the res (/estate of his case is undoubted. 85 The term " material
facts " w 7 ould seem to include the res gestae facts which are constituent 86 and
all probative ones which must be proved if such constituent facts are to be es-
tablished. 87 The latter are received almost as a matter of course. 88
Action of Appellate Courts. Even where the higher court feels that error
has been committed in admitting certain evidence, it will not, as a rule, find
prejudice where the evidence admitted was entirely irrelevant, i. e., immaterial.
Sound practice would seem to allow the action of the trial judge to stand, 89
unless prejudice should arise from other causes, for example, where the evidence
is affirmatively shown to have confused !>0 or misled 91 the jury. 92
664. [Canons of Requirement] ; Optional Admissibility. Facts of optional
admissibility may fall under any of the broad lines of administrative require-
ments above enumerated. Reason is the only guide in view of the rights of the
litigants and the social objectives which judicial administration proposes to
itself. 93
Antecedent or Subsequent Facts; Antecedent. Facts are to be regarded as
antecedent or subsequent according to their relation to the point of time covered
by the occurrence of the res gesiae. The relevancy of such facts is, as a rule,
Co., 37 N. Y. 580 ( 1868 ) ; 3 Chamb., Ev., cal condition in personal injury case. See
1747, n. 5. note, Bender Ed., 35 X. Y. 487. Proof must
82. Supra, 416; 2 Chamb., Ev., 1030. follow allegations of pleadings. See note,
83. Sturdevanfs Appeal, 71 Conn. 392, 42 Bender Ed., 104 X. Y. 170, 133 N. Y. 437.
Atl. 70 (1899) ; State Bank v Southern Nat. What may be shown under general denial.
Bank, 170 N. Y. 1, 62 N. E. 677 (1902) ; 3 See note, Bender Ed., Ill N. Y. 270, 142 N.
Chamb., Ev., 1747, n. 7. Y. 135. Variance from complaint. See note,
84. 3 Chamberlayne, Evidence, 1748. Bender Ed., 160 N. Y. 191.
85. Supra, 157; 1 Chamb., Ev., 358. 89. Brown v. Tourtelotte, 24 Colo. 204, 50
86. Supra, 31, 32: 1 Chamb., Ev., 47, Pac. 195 (1897) : Kellogg v. Kimball. 122
49. Mass. 163 (1877) : Lake Shore, etc., R. Co v.
87. Vaughan's Seed Store v. Stringfellow, Erie County, 41 Hun (N Y.) 637. 2 St. Rep.
56 Fla. 708, 48 So. 410 (-1909); American 317 (1886): 3 Chamb., Ev., 1749, n. 2.
Process Co. v. Pensauken Brick Co., 78 N. J. 90. Lucas v. Brooks, 18 Wall. (U. S.) 436,
L. 658, 75 Atl 976 (1910); 3 Chamb., Ev., 21 L. ed. 779 (1873).
1748, n. 4. 91. Hunter v. Harris, 131 111 482, 23 N. E.
88. Stuart v. Noble Ditch Co., 9 Ida. 765, 626 (1890); Gregg v. Northern R. Co., 67
76 Pac. 255 (1904): Hildebrand v. United N. H. 452, 41 Atl. 271 (1893); 3 Chamb.,
Artisans, 50 Or. 159. 91 Pac. 542. Imma- Ev.. 1749, n. 4.
terial facts, on the other hand, are to be 92. Where there is no jury, the inference
excluded. Czarnecki v Derecktor, 81 Conn. of prejudice from such a ruling fails to
338, 71 Atl. 354 (1908) ; First Nat. Bank v. arise. Andrews v. Johnston, 7 Colo. App. 551,
Miller, 235 111. 135, 85 N. E. 312 (1908); 44 Pac. 73 (1896).
3 Chamb., Ev., 1748, n. 5. Proof of physi-
503 CONSISTENT AND INCONSISTENT. 665
causal or explanatory; they tend to give plausibility and connectedness to the
hypothesis of the proponent. 94 The facts constituting the res gestae of the case
derive clearness and coherence of outline when taken in connection with the
causes and conditions which have created the situation. 95 Some causal con-
nection between the antecedent fact and one in the res gestae must be shown.
Otherwise, no ground is furnished for admitting a prior fact. 9tt
Subsequent. The relevancy of subsequent facts is much the same. The
result is frequently to reinforce the correctness of the inferences relating to
the actual nature of the res gestae by showing that the subsequent effects were
such as might naturally have been expected had the res gestae actually been as
they are now claimed to be. In other words, causation 97 as it were, throws
light forward from antecedent facts upon the zone of the res gestae. It casts
light backward upon the same zone from the subsequent transactions.
665. [Canons of Requirement] ; Consistent and Inconsistent Facts. 98 Among
probative facts collaterally relevant are those whose existence is inconsistent
with that of some res gestae or directly evidentiary fact. Conduct inconsistent
with a present claim may at all times be shown by the adverse interest. 99
Generally speaking, collateral facts whose existence is merely consistent with
probative or res gestae ones possess no marked evidentiary value. Some rela-
tion, more directly Causal in its nature must be established for such a result. 1
Situations may arise where it may be necessary to use mere consistency in an
93. 3 Chamberlayne, Evidence, 1750*. fanity and inability to enunciate words dis
94. Supra, 37 ; 1 Chamb., Ev., 55. tinctly and inability to stand steadily State
Chicago Consol. Traction Co. v. Mahoney, 230 v. Baughn, 162 Iowa 308. 143 X. W 1100,
111. 562, 82 X. E 868 (1907); Witmer v. 50 L. R A. (X. S) 912 (1913). In an ac-
Buffalo & X. F. Electric Light & Power Co., tion for breach of warranty that a fertilizer
187 X. E. 572, 80 X. E. 1122 (1907) : United contained certain ingredients, evidence is ad-
Power Co. v. Matheny, 81 Ohio St. 204. 90 missible that the results of using them were
X E. 154 (1909) : 3 Chamb., Ev., 1751. n. 1 poor where the kind of soil, manner of culti-
95. Goldschmidt v. Mutual Life Ins. Co. of vation accidents of season and other pertinent
New York, 119 X. Y. Supp. 233, 134 App facts are shown as this tends to shown that
Div. 475 (1909). they did not have these ingredients Hamp-
96. Casey v. J W Reedy Elevator Mfg. ton Guano Co. v Hill Live-Stock Co.. 168
Co., 142 111 App 126 (1908) -. Shadowski v. X. C. 442, 84 S. E. 774, L R. A. 1915 D 875
Pittsburg Ry. Co. ; 226 Pa 537, 75 Atl 730 (1915).
( 1910) : 3 Chamb., Ev , 1751, n. 4. 98. 3 Chamberlayne, Evidence, 1752-
97. ffupru. 36: 1 Chamb., Ev , 55, 58: 1754.
Infra, 671: 3 Chamb, Ev., 17*4. Avery 99. Thus, where it is contended, in an ac-
Mfg. Co. v Mooney. 137 111 App. 551 tion for personal injuries that the latter
(1907); People v. Colmey. 102 X Y. Supp. were being simulated, evidence is compe-
714, 117 App. Div. 462 (1907); 3 Chamb., tent to show that the party setting up this
Ev., 1751. n. 2. Damages in a libel suit claim has acted in a manner incompatible
may be proved by showing the effect, the libel with any bona fide belief in it Williams v
had upon persons who heard or read it Van Spokane Falls & X. Ry Co.. 42 Wash. 597.
Lonkhuyzen v. Daily Xews Co, 195 Mich S4 Pac. 1129 (1906) ; 3 Chamb., Ev., 1752.
283, 161 X. W. 979. L R. A 1917 D 855 1. Hawkins v. James, 69 Miss. 274, 13 So.
(1917). Drunkenness may be shown by evi- 813 (1891).
dence of loud talking n the street and pro-
666,667 PROBATIVE RELEVANCY. 504
evidentiary capacity. Thus, it may be shown that certain things happened as
they might have been expected to happen if one contention or the other before
the court were true. 2 The admissibility of any evidence as to the existence of
merely consistent facts may fairly be deemed matter of administration, as is
commonly said, of " discretion." 3 On the other hand, the right of a litigant
to prove a fact inconsistent with one directly probative or material in the res
gestae seems preeminently a matter of right, ex debito justiciae. 4
666. [Canons of Requirement] ; Explanatory or Supplementary Facts. 5
Prominent among facts admitted as indirectly relevant, e.g., from which a
deliberative or collateral inference may be drawn are those which may properly
be denominated explanatory. 6 Facts of an explanatory or supplementary na-
ture may even be used to give force and cogency to those in the direct line of
proof. 7 The effect of evidence of this nature is not, however, in all cases af-
firmative. An explanation may equally well be intended and calculated to
diminish the force of the evidence produced by one's adversary. 8
667. [Canons of Requirement] ; Negative Facts. 9 This distinction between
the probative effect of consistent and that of inconsistent facts, always of im-
portance, may be noted in operation where the form of the evidence is, as it
well may be, negative. 10
Absence of Entry, Record, Etc. The circumstance that there is found to be
no entry in a certain book, 11 that no memorandum or other written insertion
has been made on a given record, 12 where it naturally would have been placed
had the fact existed, may furnish some evidence that the fact is not as alleged.
The probative force of the inference from non-entry varies with the extent to
which regularity in the recording of business transactions may rationally be
2. Alpena Tp. v. Mainville, 153 Mich. 732, 8. People v. Philbon, 138 Cal. 530, 71 Pac.
117 N. W. 338, 15 Detroit Leg. N. 605 650 (1903); Woodrick v. Woodrick, 141 N.
(1908); Gallegos v. State (Tex. Cr. App. Y. 457, 36 X. E. 395 (1894); Burley v. Ger-
1905), 90 S. W. 492; 3 Chamb , Ev., 1753. man- American Bank, 111 U. S. 216, 4 S. Ct.
3. Cook v. Malone, 128 Ala. 662, 29 So. 341, 28 L. ed. 406 (1883); 3 Chamb., Ev.,
653 (1900); Blaisdell v. Davis, 72 Vt. 295, 1755, n 6.
48 Atl. 14 (1898); 3 Chamb, Ev,, 1754, n. 9. 3 Chamberlayne, Evidence. 1756-
1. 1759.
4. 3 Chamb., Ev, 1754. 10. Treat v. Merchants' L. Assoc. 198 111.
5. 3 Chamberlayne, Evidence, 1755. 431, 64 NT. E. 992 (1902) ; Shannon v. Cast-
6. Atlantic Coast Line K. Co. v. Taylor, 125 ner, 21 Pa. Super. Ct. 294 (1902) ; 3 Chamb.,
Ga. 454, 54 S. E. 622 (1906); Hayward v. Ev., 1756.
Scott, 114 III. App. 531 (1904): Jones v. 11. Peck v. Pierce, 63 Conn. 310, 28 Atl.
Cooley Lake Club, 122 Mo. App 113, 98 S. 524 (1893) ; Woods v. Hamilton, 39 Kan. 69,
W. 82 (1906) ; 3 Chamb., Ev., 1755. n 2. 17 Pac. 335 (1888) ; 3 Chamb., Ev., 1757, n.
7. Buckeye Mfg Co. v. Woolley Foundry, 1.
etc., Works. 26 Ind. App. 7, 5* N. E. 1069 12. Knapp v. Day, 4 Colo. App. 21, 34 Pac.
(1900); Hughes v. Gross, 166 Mass. 61, 43 1008 (1893): Bristol County Sav. Bank v.
N. E. 1031, 55 Am. St. Rep. 375. 32 L R A. Keavy, 128 Mass. 298 (1880); Gaston v.
620 (1896) ; Tracy v. McMamis, 58 N. Y 257 Merriam, 33 Minn 27L 22 N. W. 614 (1885) ;
(1874) ; Tibbals v. Iffland, 10 Wash. 451, 39 3 Chamb., Ev., 1757, n. 2.
Pac. 102 (1895) ; 3 Chamb., Ev, 1755, n. 5.
505 NEGATIVE FACTS. 667
inferred from experience. 13 The systematic habit of entering transactions
must, therefore, be affirmatively shown. This rule, so far as it relates to entries
on books of account, is qualified. It has been held that the fact that a set of
books shows no receipt of goods, 14 no entry of the receipt of money, 15 or of the
assumption of a risk, 16 affords no inference that the goods were not delivered.
or that such payment was not received or contract made. In general, the mere
self-serving absence of an entry on books of account is not evidence that there
was no ground for making one. 17
Failure to See, Hear, Etc. In the same way a witness may properly testify
that he did not see a given sight, 18 hear a particular sound, 19 in general, did
not notice a fact. Such evidence is of no value if at the time of the alleged
occurrence of these events the witness was so situatd that they well might have
occurred and he neither have seen nor heard them. Should the witness, how-
ever, have been so located that they could not have occurred without his having
seen or heard them, then his failure to see or hear them makes the inference
that they did not happen a legitimate one. 20 Under certain circumstances, fail-
ure by one in the position to do so to hear any report, rumor, or other form of
private or popular expression on a given subject may be independently relevant
to the existence of a psychological fact, mental state or moral quality. 21
Ignorance of Alleged Fact. In much the same way, ignorance of a given
fact of such nature or notoriety 22 that the witness would probably have known
of it had it existed, furnishes some evidence that such is not the case. 23 The
necessary inference is that, had the fact existed, the person in question must
have known it. 24
13. Corner v. Pendleton, 8 Md. 337 (1855) ; 21. Thus, that a member of a given corn-
Roe v. Xichols, 38 X. Y. Supp. 1100, 5 App. munity has at no time heard anything said
Div. 472 (1896) ; 3 Chamb., Ev., 1757, n. 4. with regard to the reputation or character
14. Keim v. Rush, 5 Watts & S. (Pa.) of a given individual may be a relevant fact.
377 (1843). Corrigan v. Wilkes-Barre & W. V. Traction
15. Scott v. Bailey. 73 Vt. 49, 50 Atl. 557 Co., 225 Pa. 560, 74 Atl. 420 (1909). A wit-
(1901). ness qualified to do so may state that he
16. Sanborn v. Fireman's Ins. Co., 16 Gray never heard that the railroad company had
(Mass.) 448, 77 Am Dec. 419 (1860). at any time objected to the crossing by the
17. Schwar/.e v. Roessler, 40 111. App. 474 public of one of their bridges. Lamb v.
(1891) ; Morse v. Potter. 4 Gray (Mass.) 392 Southern Ry. Co., 86 S. C. 106, 67 S. E. 958
( 1855i ; 3 Chamb., Ev., 1757, n. 8. (1010). A date for the happening of a given
18. Whittaker v. New York, etc., R. Co., event may be fixed in the same way, e.g.,
51 X. Y. Super. Ct. 287 (1885) ; Galveston, that a particular witness heard nothing of it
etc., Ry. Co. v. Udalle I'Tex. Civ. App. 1905), prior to a certain time. Lincoln v. Hemen-
91 S. W. 33ii; 3 Chamb., Ev., 1758, n 1. way. SO Vt. 530, 60 Atl. 153 (1908).
19. \Yest Chicago St. R. Co. v. Kennelly, 22. Dawson v. State, 38 Tex. Cr. 50, 41 S.
170 Til. 508, 48 X. E. 996 (1897): Hannefin W. 590 (1S07). That a given person "has
v. Blake, 102 Mass. 297 (1869) ; Greany v. money" is not a fact of this nature. Killen
Long Island R. Co., 101 X. Y 419. 5 X. E. 425 v. Lide. 65 Ala. 505 (1880).
(1886); 3 Chamb., Ev , 1758, n. 2. 23. Xelson v. Iverson, 24 Ala. 9. 60 Am.
20. East Tennessee, etc., R. Co v. Carloss, Dec. 442 (1853) ; 3 Chamb.. Ev.. 1750. n. 2.
77 Ala, 443 (1884); Chambers v. Hill, 34 24. Xetherlands Fire Ins. Co. v. Barry, 3 N.
Mich. 523 (1876); 3 Chamb., Ev., 1758, n. Y. Supp. 164, 103 App. Div. 581 (1905).
3.
668, 669 PROBATIVE RELEVANCY. 506
668. [Canons of Requirement] ; Preliminary Facts. 25 Antecedent facts 26
are carefully to be distinguished from facts which are logically necessary to the
admissibility of any piece of evidence offered, facts as to which the court will
require to be reasonably satisfied before permitting the evidence to go to the
jury. 27 Instances where preliminary proof is required or its future production
tacitly assumed are very numerous in connection with the trial of causes. A
plan, cause of action 28 or other thing must, in many instances, be identified in
some suitable way as a. condition of its being received as evidence. Such facts
are merely conditioning circumstances whose existence is essential to the rel-
evancy of certain others. Such facts are designated as preliminary. 29 In like
manner, the authority of an attorney 30 or other agent to bind his principal, or
of a given individual to bind a corporation as one of its officers, should, in strict-
ness, be proved as a fact preliminary to receiving evidence of statements or
other facts. It must be affirmatively shown that bloodhounds used in tracking
criminals were capable, by reason of previous experience, of doing the work
required. 31
669. Probative Relevancy; Objective and Subjective. In endeavoring to
apply the reasoning faculty to the simplest probative statement by a witness a
double question at once presents itself; (1) Is the declaration such that, as a
matter of objective reality, a tribunal would be reasonably justified in acting
on it I (2) Is the witness free from controlling motive to misrepresent and
possessed of such adequate knowledge as to give reasonable ground for believing
that he knows the truth and will truly state it ? Should the first of these ques-
tions be answered in the affirmative, the fact stated is objectively relevant to a
proposition in the case. Should the second be similarly answered, the declara-
tion of the witness is subjectively so. Both these elements must unite to insure
complete relevancy. 32
Court and Jury. All objective inferences are, in the first instance, passed
upon, previously, by the Court, ultimately by the jury. Where the statement
25. 3 Chamberlayne, Evidence, 1760. dence of the facts asserted in them, the
26. Supra, 664; 3 Chamb., Ev., 1751. court must be satisfied, in some way, that
27. Thus, in order that a witness should be they were accurately kept. West Coast Lum-
permitted to testify it must be proved to the her Co. v. Newkirk, 80 Cal. 275, 22 Pac. 231
satisfaction of the court, or the presiding (1889).
judge must feel justified in assuming that he 28. Harris v. Miner, 28 111. 135 (1862^ :
is possessed of adequate knowledge regarding Dupuis v. Interior Constr., etc., Co., 88 Mich,
the subject as to which he proposes to speak. 103. 50 X. W. 103 (1891).
Supra, 36; 1 Chamb., Ev., 56: Comeau v. 29. 3 Chamberlayne, Evidence, 1760, n. 7.
Hurley, 24 S. D. 275, 123 N. W. 715 (1909) ; 30. American Process Co. v. Pensauken
3 Chamb., Ev., 1760, n. 3. In the same way, Brick Co., 78 N. J. L. 658, 75 Atl 976 ( 1910) .
before a photograph can be admitted into evi- 31. State v. Freeman, 146 N. C. 615, 60
dence, proof must be offered that it is accu- S. E. 986 (1908); State v. Dickerson, 77
rate. Miller v. Louisville, etc., E. Co.. 128 Ohio St. 34, 82 N T . E. 969, 13 L. E. A. (N. S.)
Ind. 97, 27 X. E. 339, 25 Am. St. "Rep. 416 341 (1907); 3 Chamb., Ev., 1760, nn. 10,
(1890); 3 Chamb., Ev., 1760. n. 4. That 11. 12. See.posf. 797.
books of account should be regarded as evi- 32. 3 Chamberlayne, Evidence, 1761.
507 OBJECTIVE. 670
of a witness is objectively relevant, the court is extremely apt to regard the
question as to whether it is subjectively so, as one of fact for the jury, a neces-
sary incident, as it were, in determining the weight of the evidence. 33
Ignorance and Other Subjective Impairment. In general, where the state-
ment of a witness or the declarations of a document are objectively relevant, the
court will decline to intervene on account of the bias, interest, or other sub-
jective condition of the declarant. Where the proposed declarant has no suit-
able knowledge as to the subject-matter of his statement, the judge intervenes
to reject his testimony. The practice of the courts, in thus making a distinction
between the impairment of subjective relevancy due to lack of adequate knowl-
edge and that arising from other subjective conditions on the part of % a witness,
is comparatively a modern one. 34
Independent Sufficiency Not Required. No statement or other fact is ad-
missible which is not relevant to some material proposition submitted for judi-
cial determination in the case. Any statement, 35 or other fact relevant to some
material 36 proposition so submitted, is admissible. It is not important that
any individual fact, classed as relevant should, taken in and of itself, be suf-
ficient to sustain the proponent's contention on the point covered by it 37 If in
connection with other facts, the one in question has a logical bearing upon the
truth of a proposition in issue, 38 it is admissible.
670. [Probative Relevancy]; Objective; Ancillary Facts. 89 A fact mm
relevant even where the only use is to condition other facts in themselves ir-
relevant. This may Happen where a circumstance intrinsically irrelevant
used to establish a date 40 or determine the fact of identity. 41 In the s^ 1
logical position, stands any fact which merely completes one which is itself ;
trinsically relevant. 42 To facts of this class, the term ancillary seems proper"
applied.
33. 3 Chamberlayne, Evidence, 1762. 35 X. Y. 49 (1866); Schock v. Solar Ga
34. 3 Chamberlayne, Evidence, 1763. light Co., 222 Pa. 271, 71 Atl. 94 (1908); ?
35. That the statement is made in an an- Chamb., Ev., 1764, n. 4.
swer irresponsive to the question asked, does 38. Com. v. Williams, 171 Mass. 461, 50 N.
not render it an irrelevant fact. O'Neal v. E. 1035 (1898); Passmore v. Passmore, 50
McKinna, 116 Ala. 606, 22 So. 905 (1897). Mich. 626, 16 X. W. 170, 45 Am. Rep. 62
36. Where the proposition to which the (1883); De Arman v. Taggart. 65 Mo. App.
evidence is directed is an immaterial one the 82 (1805) ; 3 Chamb., Ev., 1764, n. 5.
fact itself may well be excluded. Fry v. Provi- 39. 3 Chamberlayne, Evidence, 1764-
dent Sav L. Assur. Soc. (Tenn. Ch. App. 1773.
1806), 38 S. W 116. Should such evidence, 40. McDonald v. Savoy. 110 Mass. 49
however, be admitted, even over objection, (1872) ; Levels v. St. Louis & H. Ry. Co., 196
the ruling cannot be deemed, in the absence Mo. 606. 94 S. W. 275 (1906) : Artcher v. Mc-
of special circumstances tending to show in- Duffle, 5 Barb. (X. Y.) 147 (1849) ; 3'Chamb.,
jury, to constitute prejudice. Smay v. Etnire, 1765, n. 1.
09 Iowa 140. 68 X. W. 597 (1896). 41. ,^/pro, 653; 3 Chamb., Ev., 1741c.
37. Heffernan v. Ball, 109 111. App. 231 42. This may occur where a fact has been
(1903); Glassberg v. Olson, 89 Minn. 195, incorporated by reference. Krech v. Pacific
94 X. W. 554 (1903); People" v. Gonzalez, R. Co., 64 Mo. 172 (1876).
671 PROBATIVE KELEVANCY. 508
Burden on Proponent. Objective relevancy being thus an essential condition
to the admissibility of any fact as evidence, the burden of showing its existence
whenever in dispute or not apparent, rests on the proponent, the party offering
the evidence. 43
Effect of Substantive Law. The substantive law frequently interferes with
the adjective law of evidence by prescribing what evidence shall be received or
forbidding any evidence whatever on certain subjects "* 4 or that a certain num-
ber of witnesses or amount of proof shall be required for certain matters.
Corroboration and Impairment. It is frequently necessary to test the evi-
dence of the proponent by proving incidental facts which tend to impair its
probative orce.
Furthermore it may be corroborated in either of two ways, (1) By cumulative
t ..iToboration which adds merely to the number of witnesses or confirmatory
facts to a given effect but with little tendency to establish a correlation between
-weral inferences: (2) By corroboration to a given effect but with little
1 ; nclency to establish an inference of itself by welding together the individual
..Tength of the separate inferences into one whose cogency is far in excess of
i lie aggregate in proving power of the separate inferences themselves.
Corroboration of a witness should be offered through some evidence inde-
pendent of the witness himself. 45
671. [Probative Relevancy]; Subjective. 46 Many inferences from experi-
ence are uniformly admissible which though possibly objective to the tribunal
may, it would seem, be properly classed, from the standpoint of the witness or
other declarant, as subjective. .Shortly stated, subjective relevancy is such a
relation between the mental equipment of a witness, writer of a document or
other declarant, and the statement made by him as rationally leads to an in-
ference that the declaration asserts the truth. It is not a matter of consequence,
in this connection, whether the statement be judicial or extra-judicial, sworn
or unsworn. Subjective inferences relate to the state of mind of the witness,
writer or other declarant whose assertion goes before the tribunal, as to his
interest, bias, motive to misrepresent, opportunities for observation, means of
knowledge, etc. The point to be determined by these inferences is : As a mat-
43. Williams v. Case, 78 111. 356 (1875) ; 44. As in case of State secrets or privileged
Gibson v. Burlington, etc., R. Co., 107 Iowa communications. See post .
596, 78 N. W. 190 (1899) ; Ehrehart v. Wood, 45. Under the rule that in a prosecution
71 Hun (i09, 25 N. Y. Supp. 31 (1893): for seduction there must be some corrobora-
Hutchinson v. Canal Bank, 3 Ohio St. 490 tive evidence letters and post-cards identified
(1854) ; 3 Chamb., Ev., 1766, n. 1. For a only by the prosecutrix are insufficient. Rog-
full discussion and consideration of Objective ers v. State. 101 Ark. 45, 141 S. W 491. 49
and Subjective Relevancy, Corroboration and L. R. A. (X. S.) 1198 (1911). In a prose-
Impairment, see 3 Chamb.. Ev., 1767-1778. cntion for rape the complaint of the prose-
As to Probative Relevancy of Deliberative cution to the police does not constitute corro-
Inferences, Objective and Subjective, see also boration. People v. Carey, 223 N. Y. 519,
discussion thereof, 3 Chamb., Ev., 1779- 119 N. E. 83 (1918.
1790
509 SUBJECTIVE. 671
ter of experience, is a mind like that of the witness, with such a content subject
to the influence of such feelings and emotions, one through which truth is so
apt to come to the tribunal as reasonably to justify the latter in relying upon it \
This is the question psychology presents to every court in the case of every wit-
ness. The fact that the witness has acted from habit or routine as in case of
shop-book entries may also be shown. The oath required of the witness is a
survival of the ancient ordeal by oath imposed to ensure truth.
The attention and memory of the witness and the power of suggestion exer-
cised on him must also be considered as well as the capacity of the witness.
The testimony of the witness may be corroborated or impaired by these con-
siderations.
46. 3 Chamberlayne, Evidence, 1774.
CHAPTER XXVI.
REASONING BY WITNESSES.
" Matters of opinion; " an ambiguous phrase, 672.
irrelevancy as true ground for rejection, 673.
Inference by wi'-nesses; use of reason a matter of right, 674.
Entire elimination of inference impossible, 675.
Involution of reasoning, 676.
conditions of admissibility , 677.
necessity; inability of witness to state precise mental effect of observar
tion, 678.
inability of jury to coordinate the sense impressions of the ob-
servers, 679.
functions of the judge, 680.
relevancy ; objective and subjective, 681.
adequate knowledge, 682.
ordinary observer, 683.
skilled witness, 684.
conclusions and judgment of skilled witness, 685.
judge as tribunal of fact, 686.
action of appellate courts, 687.
672. "Matters of Opinion;" An Ambiguous Phrase. 1 A familiar rule of
exclusion is to the effect that witnesses are to state facts and not " matters of
opinion." 2 Facts, physical or psychological, being the subject-matter of evi-
dence, this exclusion of the " opinion " of witnesses applies to the use of the
reasoning faculty concerning them. " Matter of opinion," thus related to facts,
is, as has been seen, :! separated from the general class of facts for the purpose
of indicating, usually marking thereby for exclusion from evidence, an act of
reasoning or a fact in which the element of inference is unnecessarily prom-
inent. The same phrase, " matter of opinion," may be so used as to indicate also
propositions of belief, incapable of verification, religious views, political prin-
1. 3 Chamberlayne, Evidence. 1701, 475, 22 X. E. 182 (1889) : Pugh Printing Co.
1792. v. Yeatman, 22 Ohio Cir. Ct. 584. 12 Ohio Cir.
2. Saxton v. Perry, 47 Colo 263, 107 Pac. Deo. 477 ( 1901 ) : Chicago, etc., Ry. Co. v.
281 (1910) ; West Skokie Drainage Dist. v. Hale", 176 Fed. 71. 99 C. C. A. 379 (1910) ; 3
Dawson, 243 Til. 175, 90 X. E. 377 (1909) -. Chamb., Ev., 1791. n. 1.
Barrie v. Quimby, 206 Mass. 259, 92 X. E. 3. Supra, 25; 1 Chamb., EV., 42.
451 (1910); People v. Barber, 115 X. V
510
511 IBKELEVAXCY. 673
ciples and the like, as to which certainty is practically impossible. All such
facts are excluded, it would seem, under the rule in question. 4
673. [Matters of Opinion] ; Irrelevancy as True Ground for Rejection. 5
The rule which undertakes to reject " opinion " may be a mere assignment, as
it were, of irrelevancy. The statement which the witness makes is lacking in
subjective relevancy. 6 He has no adequate knowledge on the subject. His
declaration, therefore, is so said to be rejected as " opinion." 7 Such
an announcement evidently fails to assign the primary ground for exclusion.
Illustrations of the method by which irrelevant testimony, e. g., that given
without adequate knowledge, is solemnly rejected as if taken out of the class
of " evidence," to which it never really belonged, by virtue of the rule ex-
cluding " opinion " are extremely numerous. The witness may use various
forms of expressing himself. Thus, he may make an offer of an " approxima-
tion." 8 He may state his " belief," 9 or give what he " considers " to be
true. 10 He may tender to the court his u expectation," ll " guess " 12 or " im-
pression," 13 his " judgment," 14 or a " supposition." 15 In all such cases, the
evidence is to be rejected on account of the lack of subjective qualifications on
the part of the witness. He is not entitled to testify as to what he u thought," 16
if thinking on the matter is all that he has done. 17 But, that a witness uses
language in giving his testimony which would be appropriate to the statement
of an inference or to indicate lack of adequate knowledge should by no means
be regarded as fatal to the reception of his evidence. The true test is whether
he actually knows enough to make his testimony such that the jury might rea-
sonably act upon it. If he does, it will be received although he couches his
4. Whited v. Cavin, 55 Or. 98, 105 Pac. 396 13. Lovejoy v. Howe, 55 Minn. 353, 57 X
(1909); 3 Chamb., Ev., 1792. W. 57 (1893): Crowell v. Western Reserve
5. 3 Chamberlayne, Evidence, 1793- Bank, 3 Ohio St. 406 < 1854) ; Plymouth Coal
1796. Co. v. Kommiskey, 116 Pa.365, 9 Atl. 646
6. Supra, 36; 1 Chamb., Ev., 56. (1887) ; 3 Chamb.. Ev., 1794, n. 7.
7. Reid v. Ladue, 66 Mich. 22, 32 N. W. 14. Huntsville Belt Line, etc., R. Co. v. Cor-
916, 11 Am. St. Rep. 462 (1887); Cook v. pening, 97 Ala. 681, 12 So. 295 (1892).
Brockway, 21 Barb. (N. Y.) 331 (1856); 15. Menifee v. Higgins, 57 111. 50 (1870);
Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32, 4 State v. King, 22 Iowa 1, 96 X. W. 712
N. E. 398, 58 Am. Rep. 785 (1886) : 3 Chamb., (1903) : Weber v. Kingsland, 8 Bosw. (X. Y.)
Ev.. 1793, n. 2. 415 (1861); 3 Chamb., Ev.. 1794, n. 9.
8. Hopper v. Beck, 83 Md. 647, 34 Atl. 474 16. State v. Xolan, 48 Kan. 723, 29 Pac.
(1896). 568, 30 Pac. 486 (1892): Lund v. Tyngs-
9. Hodges v. Hodges, 2 Cush. (Mass.) 455 borough, 9 Cush. (Mass.) 361 (1851): Barre
(1848); Berg v. Parsons, 90 Hun 267, 35 v. Reading City Pass. R. Co., 155 Pa. 170,
X. Y. Supp. 780 (1895) ; 3 Chamb.. Ev., 26 Atl. 99 (1893) ; 3 Chamb., Ev., 1794. n.
1794. n. 3. 10.
10. Yanke v. State. 51 Wis. 464, S X. W. 17. A witness may enforce the credibility of
276 ( 1881) . what he says by some assertion as to the posi-
11. Hager v. Xat. German-American Bank. tiveness of his belief in the truth of what he
105 C,a. 116, 31 S. E. 141 (1897). says. State v. Duncan, 116 Mo. 288, 22 S. W.
12. Johnson v. Hovey, 98 Mich. 343, 57 699 (1893).
N. W. 172 (1894).
674 REASONING BY WITNESSES. 512
utterance in the precise language which has just been seen 18 to warrant its re-
jection. 19 Thus, a witness may properly testify as to what he " believes," 20
as to that which is the u best of his judgment," 21 or what he " considers " to
be true. 22 His evidence may be none the less valuable because he is willing
to tell only what he u expects," 23 u guesses " 24 or " has an impression " 25
that such is the fact. It may be sufficient for all judicial purposes if the
witness testifies that he " has an opinion," 26 or " judges " 27 the fact to be as
he states it. A cautious witness may be credited although his only statement
is that he ll should say " 28 certain things are true. A person may be permitted
to testify although he merely " supposes," 29 " thinks " 30 or " understands " 31
tliat his testimony represents the truth. He may be received to testify al-
though he is unwilling to swear positively to the actual truth of what he
says. 32 His " best recollection " may be all-sufficient. 33 As stated elsewhere, 34
the real administrative consideration to which the power of the court is directed
in dealing with so called " matters of opinion " is the necessity for preserving to
the parties the substantive right to a jury trial. 35 The positive law, in a very
emphatic and sweeping way, has established the inviolable right to such a
trial. 36
674. Inference by Witnesses; Use of Reason a Matter of Right. 37 The
proponent of an act of reasoning by a witness has, as a litigant, not only the
substantive right to prove his case 38 but also a substantive right to the use of
reason. 39 Combining these two rights, a litigant is justly entitled to insist that
he should be able to place the facts of his contention before a tribunal fitted to
18. See last preceding section. 29. State v. Porter, 34 Iowa 131 (1871).
19. Stone v. Com., 181 Mass. 438, 63 N. E. 30. Harris v. Fitzgerald, supra; Kirscher v.
1074 (1902); Hallahan v. New York, etc., Kirsher, 120 Iowa 337, 94 X. W. 846 (1903):
R. Co., 102 X. Y. 194, 6 X. E. 287 (1886) ; Voisin v. Commercial Mut. Ins. Co., 70 X. Y.
3 Chamb., Ev., 1795, n. 2. Supp. 147, 60 App Div 139 M901); 3
20. Griffin v Brown, 2 Pick. (Mass.) 304 Chamb., Ev., 1795. n. 13
(1824); State v. Freeman, 72 X. C. 521 31. I.ockett v. Minis, 27 Ga. 207 (1858).
(1875) ; 3 Chamb., Ev., 1795, n. 3. COXTRA: Henderson v. Brunson, 141 Ala.
21. Alabama G. S. R. Co. v. Hill, 93 Ala. 674, 37 So. 549 (1904).
514, 9 So 722, 30 Am St. Rep. 65 (1890). 32. Lewis v. Freeman, 17 Me. 260 (1840).
22. Richards v Knight, 78 Iowa 69. 42 X. 33. .Tockers v. Borgman, 29 Kan. 109, 44
W. 584, 4 L 11. A. 453 (1889) ; De Graw v. Am. Rep. 625 (1883).
Emory, 113 Mich. 672, 72 X. W. 4 (1897) ; 34. Infra, 676: 3 Chamb.. Fv., 1807.
3 Chamb., Ev., 17!>'>, n. 5. 35. Supra, 206; 1 Chamb.. Fv., 412.
23. Hunter v. Helsley, 98 Mo. App 616, 73 Hames v. Brownlee, 63 Ala. 277 (1879) ;
S. \V. 719 (1903). Robertson v Stark, 15 X. H. 109 (1844); 3
24. Hunter v. Helsley. .supra. Cham., Fv., 1796, n. 2
25. Harris v. Fit/gerald, 75 Conn. 72, 52 36. State v. Hull, 45 W Va., 767, 32 S. E.
All 315 (1902). 240 (1899).
26. Hallahan v. Xew York, etc., R. Co., 37. 3 Chamberlayne. Evidence, 1797-
supra. 1800
27. People v. Eastwood, 14 X. Y. 562 38. Supra, 149 ct seq.: \ Chamb.. Ev.,
(1856): 3 Chamb., Ev., 1795, n. 10 334 et seq.
28. White v. Van Horn. 159 U. S. 3, 15 39. Supra, 179 et seq.; 1 Chamb., Ev.,
S. Ct. 1027, 40 L. ed. 55 (1894). 385 et seq.
513 INFERENCE. 675,070
reason about them in a rational manner. If the tribunal selectedby the law,
the jury, are unable to reason concerning the facts in their primary form. 40
one of two things must be done in order to protect the proponent in his rights.
(1) The jury may be so taught upon the subject-matter involved in the inquiry
as to enable them to dispose of it in a rational manner at the end of the instruc-
tion. 41 Practically, this is what the law undertakes to do for the purpose of
enabling the jury to apply the rule of law to the constituent facts of a case.
(2) The proponent may prepare the facts for the reasoning faculty of the jury
in a secondary form, viz., the effect which they have produced upon the mind
capable, by training or experience, of reaching a rational conclusion with re-
gard to them. Almost of necessity, the second expedient, the reasoning of
witnesses with regard to the facts, is adopted in most cases. 42 The normal po-
sition of a witness is that portrayed in the Year Books. He must be oyant et
voyant, he who hears and sees. 43 His function is, par excellence-, that of
observation. The tribunal is to hear through his ears, see through his eyes.
He may merely state the facts and let the jury draw the conclusion. 44
675. Entire Elimination of Inference Impossible. 45 The impression which
first arises to the mind is a conviction of the impossibility for any one to satisfy
such requirements. If insisted upon, no one could testify. The statement of
the simplest fact embodies an element of inference. The most instant in-
tuitive recognition of a familiar object necessarily connotes an act of reasoning.
Observation, undoubtedly, presents to the mind certain sense-impressions by
the aid of the faculty analogous to but conveniently distinguished from that of
inference or reasoning, viz., intuition. So instantly and intuitively that the
mind is seldom conscious of the process these sense-impressions are seized by
the reasoning powers and the mind becomes aware of the concept rather than a
mere perception. 46
676. Involution of Reasoning. 47 It would seem convenient to divide the
acts of reasoning by witnesses as they come before the tribunal according
to the proportion which reasoning bears to observation. So regarded, these
40. The rule that facts themselves are 44. Parkin v. Grayson-Owen Co., 157 Cal.
primary and that the reasoning of witnesses 41, 106 Pac. 210 (1909); Atlantic Coast
about them is a secondary grade of evidence Line K Co v. Caple's Adm'x, 110 Va. 514,
applies not only where a jury is employed but, 66 S E. 855 (1910) ; 3 Chamb., Ev., 1800,
equally well, in cases where the judge acts n. 2
for the determination of matters of fact. 45. 3 f'hamberlayne, Evidence. 1801.
Thus, it is operative at the stage of roir dire. 46. People v. Xunley, 142 Cal. 105, 441, 75
Shepard v. Pratt, 16 Kan 200 H876K Pac. 676 (1004); Taylor v. McClintock, 87
Where the judge is sitting as a jury the rule Ark. 24.3. 112 S W. 405 (1008) : Movers v.
is the same. Lazarus v. Metropolitan El. R Fogarty. 140 Iowa 701, 119 X W. 159 (1909) ;
Co.. 60 Hun 100. 23 X. Y. Supp. 515 (1893). 3 Chamb. Ev.. 1801.
41. Infrn, $ 679 ; 3 Chamb.. Ev., 1816. 47. 3 Chamberlayne, Evidence, 1802-
42. 3 rhamb.. Ev.. 1707. 1708, 1799. 1807.
43. Supra, 242; 1 Chamb., Ev., 486.
sj 670 REASONING BY WITNESSES. 514
mental acts or processes may be treated as consisting of (1) Inference, (2)
Conclusion, and, (3 ) Judgment. 48
(1) Inference. In Inference, the element of observation is at its maximum.
The witness is an observer and his inference attaches to the effect of the impres-
sions which have come to his consciousness from what he has seen or otherwise
perceived. Speaking generally, the observation will be spoken of as ordinary 49
n-here it is in relation to the every-day affairs of life, common knowledge 50
which every one may have, and skilled 51 when -made within the domain of
an art, science or trade by one proficient in it. According as the element of
inference or reasoning is in greater or less proportion the inference is spoken
of as inlmlire or reasoned
(2) Conclusion. As in Inference, both observation and reasoning are
present. The proportion, however, of the two, is reversed. In Inference, we
have observation with incidental reasoning. In Conclusion, is to be found
reasoning with incidental observation. In any case, direct specific observa-
tion of the phenomena is blended with much else, the results of past observation,
general knowledge, information furnished by others, and the like, instant
recognition of a book, dog, one's house, familiar friend, etc., would be, under
such a definition, an intuitive inference. That A., a neighboring tradesman,
was in failing health or on the verge of bankruptcy, might properly be treated
as a Conclusion. Much of the result of past observation may have been lost
from memory. 53
(3) Judgment. In Judgment, the element of observation entirely disap-
pears. Nothing remains but an act of pure reasoning. Facts, assumed to be
true, are placed before the intellect of a suitably equipped witness and the
results given to the jury. The assumption of fact upon the basis of which
the witness reaches his mental result is styled a hypothetical question. 54 The
mind resultant at which he arrives is referred to as his Judgment. The witness
himself is termed an " expert/' As spoken of in the present treatise an expert
may be defined as a witness who gives his reasoning and the result at which
he arrives upon the basis of hypothetically stated facts. 55 Should the act of
judgment in any particular case be a necessary one, a mere summary of facts
48. 3 Chamberlayne, Evidence, 1802. 55. Best evidence required. Russell v.
49. Infra, 688; 3 Chamb ., Ev., 1837. State, 53 Miss 367 (1876).
50. Supra, 345 et seq.; 1 Chamb., Ev., Common Knowledge. The court is not re-
691 et seq quired to admit the opinion of an expert con-
51. Infra, 713 et seq.; 3 Chamb., Ev ., trary to common knowledge. Goodwin v.
1947 et seq State, 96 Tnd. 550 (1884) ; Com. v. Marzyn-
52. 3 Chamberlayne, Evidence, 1802 ski, 140 Mass 68, 21 N. E. 228 (1889).
53. 3 Chamberlayne, Evidence, 1803, nn. Judicial Knowledge. A fortiori, a judge
1, 2. is not called upon to hear expert testimony
54. Infra, Hypothetical Questions, 816 as to a rule of law concernir-" which he has
et seq.; 3 Chamb, Ev., 2451 et seq.; Wich- judicial knowledge. Supra. :U;> et seq.; 1
ita v. foggshall, 3 Kan. App. 540, 43 Pac. Chamb., Ev., 570 et seq.; Merchants', etc.,
S42 i ISM) ; Titus v. Gage, 70 Vt. 13, 39 Atl. Sav. Bank v. Cross, 65 Minn. 154, 67 N. W.
246 (1896). 1147 (1896).
515 LN VOLUTION OF REASONING. 676
proved in evidence, no administrative objection would seem to exist to receiving
it and no prejudice caused by its reception, in the absence of special circum-
stances. 56
Ambiguity of the Term Expert. A confessedly arbitrary use is made in
the present treatise of the term '' expert," as limited to a skilled witness testify-
ing in response to a hypothetical question. The object of such an effort is
simply to emphasize the unusual position of one who thus testifies without the
use of observation. From the administrative point of view his position is
unique. He should, accordingly, it would seem, receive separate administra-
tive treatment, as is done in respect to the form of question which may properly
be addressed to him.'* 7 The ambiguity of the term is obvious. The witness
who testifies to a fact of special knowledge, 58 is commonly spoken of in current
parlance as an expert. A skilled observer, familiar with a science, diagnosing
the complicated phenomena presented to his attention is an expert. The man
of science or other technical skill who is asked to give his opinion on the basis
of the truth of a hypothetically stated set of facts observed by others is also
an expert. Of these several uses, the third alone is adopted in the present
work. 59
Credibility of I ntuition. Modern judicial administration recognizes that
the spontaneous intuitive action of the mind, approaching, as it does, the uni-
formity of nature, 60 is far more trustworthy than an act of volitional reasoning,
subject to the variations in operation which attend moral uniformity. 61 In-
tuitive observations, like spontaneous statements, are presumably true. The
reason in both case? is the same.
Canons of Administration. Each litigant has a right to insist that the
reasoning of a jury should be applied to the facts of his case, but, in an admin-
istrative point of view, the party's highest right is the right to insist upon being
given a reasonable opportunity to prove his case. Q2 Should a conflict arise be-
tween the party's right to prove his case to a reasonable extent by the best
evidence in his power and the opposing party's right to insist upon having the'
reasoning of the jury applied to the facts of the case or the normal operation
Number. The marked administrative 56. Williams v. Anniston Electric & Gas
power of the jud<re in dealing with this class Co.. 164 Ala. 34. 51 So. 385 (1909).
of witnesses is further marked by the readi- 57. Infra, 816 et seq. ; 3 Chamh., Ev..
ness with which he may limit their number. 2451 et seq.
Fraser v. .Tennison. 42 Mich, 206. 3 X. \V 882 58. Xi/pra. 375 et seq.: 1 Chanib.. Ev..
(1S7<M : Powers v McKen/ie. 00 Tenn 167. 870 et seq ; Green v Kansas City Soiith-
16 S W 550 i 1801 ) ern Ry. Co., 142 Mo. App 67. 125 S YV. 865
Other Definitions. See Ausmns v. People. (101 OK
47 Colo. 167. 107 Pac. 204 (1910); Fowlie's 59. 3 Chamberlayne, Evidence. 1805.
Adm'x v. Ale-Donald. Cutler & Co. 82 Vt 60. Infrn. 906: 4 Chamh, Ev . 3150.
230. 72 Atl. OSO (1900); 3 Chamh. Ev., 61. Infrn, 1008 et seq.; 4 Chamh.. EV.,
1804. n 2 As to the marked penem! ad- 3207 et seq.; 3 Chamb.. Ev.. 1806.
ministrative control which the court has of 62. Supra. 149 et seq.; 1 Chamb, Ev.,
expert witnesses see cases cited in 3 Chamb., 334 et seq.
Ev., 1804, n. 2.
^ 077,678 REASONING BY WITNESSES. 516
of any other administrative principle, the latter must yield to the extent of its
inconsistency with the former. The substantive right to prove one's case is
paramount. 63
677. [Involution of Reasoning 1 ] ; Conditions of Admissibility. 04 The phe-
nomena observed by the witness being the primary evidence to be presented to
the tribunal wherever possible, and the inferences, conclusions and judgments
of witnesses being a secondary species of evidence, the conditions for the ad-
missibility of this class are determined by the ordinary administrative principles
governing the reception of other kinds of secondary evidence. 00 There are
two elements of admissibilitv, Xecessitv, and Relevancv.
v,.' v 7 t,
Necessity. Should it appear that inferences are essential to protect the
proponent in his paramount right to prove his case 66 they will be admitted.
As indicated above, 67 the necessity for receiving the reasoning of witnesses
arises when that of the jury must necessarily be defective. Where no adequate
necessity for receiving the secondary evidence has been shown it is to be re-
jected. 68 Where, for example, the existence of a fact has been 69 or may be 70
verified beyond question through a simple act of sense-perception 71 or by the
exhibition of a plan 72 or photograph, 73 no statement as to the inferences of a
witness with regard to it can be received. Documentary evidence, e.g., letters, 74
stands in much the same position.
678. [Involution of Reasoning]; Necessity; Inability of Witness to State
Precise Mental Effect of Observation. 75 The fact or set of facts which a wit-
ness has observed may be so numerous, complicated, minute, or interblending
as to elude effective individual expression by the witness. 70 The individual
63. 3 Chamberlayne, Evidence, 1807. 70. Stephens v. Oradner Creamery Co., 9
64. 3 Clianiberlayne, Evidence, 1808. Kan. App. 183, 57 Pac. 1058 (189!)).
65. Xupra, 1.50 et seq.; 1 Chamb., Ev., 71. Com. v. Stiirtivant, 117 Mass. 122, 19
339 et seq.; 3 Chamb., Ev., 1808. Opin- Am. Rep. 401 (1875): Cole v. Lake Shore,
ion evidence, proper subjects for specific etc., R. Co., 95 Mich. 77, 54 X. W. 638
cases, .see note. Bender od., 97 X. V. 507. 520. (1893) -. 3 Chamb., Ev., . 1809, n. 8.
Proper subjects of opinion, see note, Bender 72. Schwede v. Hemrich, 29 Wash. 124, 69
ed., 39 X. Y. 49, 04. Admissibilitv of opinion, Pac. 643 (1902).
what are admissible, and what are not 73. (Josser v. Washington Tp.. 11 Pa.
specific instances, see note, Bender ed., 27 N. Super. Ct. 112 (1899).
Y. 244. To show licit fasteners defective, see 74. Kellogg v. Frazier, 40 Iowa 502 (1875).
note, Bender ed., 113 X. Y. 600. The action of a trial judge in this respect will
66. Supra, 149 et seq.; 1 Chamb.. Ev., not be reversed unless manifestly unreason-
334 et seq.; Weiss v. Kohlhagen, 58 Or. able. Barker v. Lawrence Mfg. Co.. 176
144, 113 Pac. 46 (1911). Mass. 203. 57 X. E. 366 (1900). See discus-
67. Supra, 674; 3 Chamb., Ev., 1799. sion generally of Inferences, Conclusions and
68. Barker v. Lawrence Mfg. Co., 176 Mass. Judgments of witnesses, 3 Chamb., Ev.,
203, 57 X. E. 366 (1900); 3 Chamb., Ev., . 1810,1811.
1809. 75. 3 Chamberlayne, Evidence, 1812,
69. Southern Kansas R. Co. v. Robbing, 43 1813.
Kan. 145, 23 Pac. 113 (1890); Smith v. Mu- 76. Savage v. Haves, 142 111. App. 316
tual Hen. L Ins. Co., 173 Mo. 329, 72 S. W. (1908) : Clark v. Baird, 9 X. Y. 183 (1853) ;
935 (1903) ; 3 Chamb., Ev., 1809, n. 6. 3 Chamb., Ev., 1812, n. 2.
517 INVOLUTION OF REASONING. 679
phenomena presented to the sense-perception of a witness may be so disposed
among themselves that they can be placed before the mind of a tribunal only
through a statement as to their combined effect upon that of an observer. This
limitation upon the power of a witness to describe a complicated set of phe-
nomena only by their secondary effect connotes and involves, as a matter of
course, the forensic necessity on the part of a proponent of offering to the jury
these phenomena in the only form which is available to him. The canon of
administration which admits such evidence is applied in numerous instances. 77
Where all the constituent phenomena can be fully placed before the jury, how-
ever, the mental summary of the observer is rejected. 78
Detailed Statement of Calient Facts. That the right of a litigant to the
judgment of the jury should be invaded only to the extent that the necessity of
the proponent requires, the observing witness will be called upon to state, for
the benefit of the jury, such portions of the component or constituent facts as
admit of separate statement. Having stood successfully the tests which this
preliminary detail applies to his evidence, he is then permitted to state the entire
set of phenomena observed by him as they have been collected into the secondary
form of a single concept or act of reasoning, e.g., a compound fact or expression
of fact. Thus, in some degree, is the precision of his reasoning brought to
light. More subjective feelings, bias, interest, and the like, occasionally stand
revealed. In assisting the work of the jury, this preliminary detail of con-
stituting facts is of considerable importance. Its effect in testing the memory
is of no slight consequence. 79 It follows, as a necessary corrollary, that w r here
all the constituting facts can be placed before the jury no reason exists for
receiving the inference, 80 provided the jury are able to coordinate the facts
presented into a reasonable deduction.
679. [Involution of Reasoning] ; Inability of Jury to Coordinate the Sense Im-
pressions of the Observers. 81 From similar causes inherent in the fact that
verbal description is necessarily ill-adapted for the presentation of reciprocally
interacting phenomena. 82 it is probable that even should the witness succeed in
giving to the jury an exact representation of many commingling phenomena,
77. Taylor v. State, 135 Ga. 622. 70 S. E. nomena is one very generally made. Snell v.
237 ( 1911 i ; Kolp v. Decatur Ry. & Light Co., Weldon, 239 111. 279, 87 N. E. 1022 (1909) ;
145 111. App. 645 (1908) ; 3 Chamb.. Ev., Landrum v. Swann, 8 Ga. App. 209, 68 S. E.
1812, n. 3. 862 (1910): 3 Chamb., Ev., 1813. n. 3.
78. Springfield & X. E. Traction Co. v. 80. Keefe v. Sullivan County R. R. Co., 75
YVarrirk. '249 111. 470, 94 X. E. 933 (1911); X. H. 116, 71 Atl. 379 (190S): Pearson v.
Hufnagle v. Delaware & H. Co., 227 Pa. 476. Alaska Par. S. S. Co., 51 Wash. 560, 99 Pac.
76 Atl. 205 (1910) : 3 Chamb., Ev., 1812, 753 (1909) : 3 Chamb., Ev., 1813. n. 4.
n. 4. 81. 3 Chamberlayne, Evidence. 1814-
79. Abingdon Mills v. Grogan. 167 Ala. 146, 1S19.
52 So. 596 (1910). 82. 3 Chamberlayne, Evidence, 1814,
A general requirement. The require- 1815.
ment of a preliminary detail of observed phe-
679 REASONING BY WITNESSES. 518
the tribunal would still fail to receive an accurate impression of the situation
as a whole. 83
Instructing the Jury. To avoid the administrative difficulty of the jury's
lack of knowledge, such instruction, by way of preparation for their act of
judgment, as will render it an exercise of sound reasoning, occasionally can be
satisfactorily afforded them. 84 Such instruction may be afforded to the jury
by the witnesses who appear on the stand. On the other hand, this evidence
may be rejected when tendered. 85
Jury's Lack of Knowledge. The necessity for receiving the secondary evi-
dence of an act of inference, conclusion or judgment may arise not so much from
difficulty in understanding the probative or evidentiary fact, as from lack of
the special experience which alone can form a satisfactory inference or con-
clusion. 86 Where the experience of the jury does not enable them to under-
stand and reason intelligently with regard to a matter of science, or as to the
affairs of a trade or calling, skilled witnesses will be allowed to state facts of
special knowledge. 87 The evidence of these witnesses is admissible where the
facts are such that those who testify may well be supposed from their experi-
ence and study to have peculiar knowledge on the subject which jurors generally
do not possess. 88
Common Knowledge. Conversely, it follows that where the matter is one of
common knowledge, 89 i.e., where the general proposition df experience is one
within the knowledge of the average juryman, no ground for admitting the
reasoning of witnesses is furnished. 90 The secondary evidence is, therefore,
rejected under the rule excluding the reasoning of witnesses. 91 " A witness
83. Missouri, etc., Telephone Co. v. Vande- telligence. Ferdon v. New York, 0. & W.
vort, 67 Kan. 269, 72 Pac. 771 (1903). See Ry. Co., 115 N. Y. Supp. 352, 131 App. Div.
Sequences and Coexistences, 3 Chamb., Ev., 380 (1909).
1815, and notes. 88. Buis v. Northern Pac. Ry. Co., 42
84. Hiwins v. Devvey, 107 Mass. 494, 9 Mont. 471, 113 Pac. 472 (1911); Horst v.
Am Uep 63 (1871); Read v. Valley Land, Lewis, 71 Neb. 365, 103 N. W. 460 (1905).
etc-.. Co.. (56 Neb. 423, 92 X. W. 622 (1902) ; 89. Supra, 345 et seq.; 1 Chamb., Ev.,
Roberts v Xew York El. R. Co, 128 N. Y. 691 et seq.
455. 2K X. E. 486, 13 L. R. A. 499 (1891); 90. Xew England Glass Co. v. Lovell,
3 Chamb, Ev., 1816, n. 1 supra.
85. Middlebury Bank v. Rutland, 33 Vt 91. Swift & Co. v. Miller, 139 111. App. 192
414 (1860). (1908); Frick v. Kabaker, 116 Iowa 494, 90
86. Louisville, etc., R. Co. v. Malone, 109 X. W. 498 (1902) : Welch v. Xew York, etc.,
Ala. 509, 20 So 33 (1895); Xew England R. Co.. 176 Mass. 393, 57 X. E. 608 |190()) ;
Glass Co. v. Lovell, 7 Cush (Mass.) 319 Lee v. Knapp. 155 Mo. 610, 56 S. W. 458
(1851). (1899) ; Harrison v. Xaw York Cent. & H. R.
87. McClendon v. State, 7 Ga. App 7S4, 68 R Co, 195 X. Y. 86. 87 X E. 892 (1909) ;
S. E. 331 (1910); 3 Chamb.. Ev., 1817, Ohio. etc.. Torpedo Co. v. Fishburn. 61 Ohio
n. 3. Conclusions of expert witnesses may St. 608, 56 X. E. 457. 76 Am. St. Rep. 437
only be given in evidence where the conclu- (1900); Seifred v Pennsylvania R. Co.. 206
)sions as well as knowledge of the facts from Pa 399, 55 Atl. lOfil (1903): Selleck v.
'which they are drawn depend upon profes .Tanesville City, 104 Wis r>70, 80 X". W. 644,
sional or scientific information or skill, not 76 Am. St. Rep. 892. 47 L. R. A. 691 (1899) ;
within the range of ordinary training or in- ? Chamb., Ev., 1818. n. 3. "The governing
519 INVOLUTION OF EEASONING. 679
testifying merely as to matters with which the jury may well be supposed to
be as conversant as himself, and as capable of drawing a correct 'conclusion, is
not allowed to give an opinion." 92 " The jury should not be influenced by the
opinion of anyone who is not more competent to form one than themselves." 93
.For example, as the rules which experience has established for reasonable con-
duct/* 4 whether certain acts are safe or dangerous, 95 capable of being performed
without unusual exertion 96 or within the limits of human endurance 97 are
parts of common knowledge, the reasoning of witnesses with regard to them
will not be admitted. In like manner, no evidence will be received as to the
reasoning of witnesses with regard to the operation of well known laws of
nature. 98 For instance, the inference of a witness as to the results of applying
force in a well known way cannot be received." Inferences based upon familiar
instances of the uniformity of nature l and therefore known to every one, and
facts which anybody may understandingly observe for himself. 2 are not proper
subjects for the reasoning of skilled witnesses. The general rule, in other
words, is that whenever the question to be determined is to be inferred from
particular facts which can be readily produced before the jury, and the inference
to be deduced therefrom is within the common experience of men in general,
requiring no special knowledge, skill or training, the inference is to be drawn
by the jury, and not by the witness. 3 Expert testimony is inadmissible on a
question which court and jury can themselves decide on the facts, or where
rule deduced from the eases permitting the Ala. 241, 16 So. 75, 53 Am. St. Rep 39
opinions of witnesses is that the subject must (1803); Cooper v. Mills County. 69 Iowa
be one of science or skill or one of which 350. 28 X. W. 633 (1886).
observation and experience have given the 99. Chicago, etc., R. Co. v. Lexvandowski,
opportunity and means of knowledge, which 190 111. 301, 60 X. E. 497 (1901) ; Passmore
exists in reasons rather than descriptive facts, v. Passmore. 60 Mich. 463. 27 X. \V. 601
and therefore cannot be intelligently commu- (1886) ; Rawls v. American Mut. L. Tns. Co.,
nicated to others not familiar with the sub- 27 X. Y. 282, 84 Am. Dec. 280 (1863); 3
ject so as to possess them with a full under- Chamb., Ev., 1818, n. 13
standing of it." Schwander v. Birge. 46 Hun 1. Knoll v. State, 5o Wis 249, 12 X. W.
(X. Y.) 66 (1887). To the same effect, see 369, 42 Am. Rep. 704 (1882).
Georgia R.. etc., Co. v. Hicks, 95 Ga. 301. 22 2. Hovey v. Sawyer, 5 Allen (Mass.) 554
S. E. 613 (1894), and other cases, 3 Chamb., (1863) ; Xew Jersey Traction Co. v. Brabban,
Ev., 1818, n. 3. 57 X. J. L. 691, 32 Atl. 217 (18SK5) : McCall
92. Hurt v. St. Louis, etc., R. Co., 94 Mo. v. Moschcowitz, 10 X. Y. Civ. Proc. 107
255, 7 S. W. 1, 4 Am. St. Rep. 374 (1887). (1886) ; 3 Chamb., Ev., 1818, n. 15.
93. Veerhusen v. Chicago, etc., R. Co., 53 3. Smith v. Stevens, 33 Colo. 427. 81 Pac.
\Yis. 689, 11 X. W. 433 (1882). 35 (1905); Riley v. American Steel & \Yire
94. Stone v. Denny, 4 Mete. (Mass.) 151 Co.. 129 111. App. 123 (1906): ^Yise v. Sugar
(1842). Apparatus Mfg. Co., 84 Kan. 86, 113 Pac.
95. Edwards v. Worcester. 172 Mass. 104, 403 (1911); Com. v. Spiropoulos. 208 Mass.
51 X. E. 447 (1898) 71, 94 X. E. 451 (1911) ; State v. Heffernan,
96. Clay County v. Redifer, 32 Tnd. App. 93, 28 R. 1. 20, 65 Atl. 284 (1906) : Stanch v.
69 X. E. 305 (1903). Fire Ass'n of Philadelphia, 111 X. Y. Supp.
97. Metropolitan Sav. Bank v. Manion, 87 540. 127 App. Div. 350 (1908) -. Lincoln Ver-
Md. 6S, 39 Atl. 90 '1897) mont Ry. Co.. 82 Vt. 187. 72 Atl. 821 (1909) ;
98. Johnson v. Louisville, etc.. R. Co.. 104 3 Chamb., Ev., 1818, n. 16.
680 REASONING BY WITNESSES. 520
the relation of facts and their probable results can be determined without
special skill. 4
Special Knowledge. It is not essential that the subject matter should be
one of science ; if it be such that a special habit of mind or specific information
not usually possessed by common men is essential for its complete understanding,
a court is warranted in admitting the reasoning of a skilled witness with regard
to it. 5 The mere fact, however, that the witness belongs to a particular trade
is not ground for receiving the evidence of his inferences. The latter must
embody technical knowledge. 6 The inferences of those especially familiar with
animals are not necessary to state facts regarding which the average man has
adequate knowledge, e.g., what is likely to frighten 7 or otherwise injure 8
them. The matter, however, is largely one of administration. 9 Where no
special training is required for learning a business, facts as the method in
which it is done will not be received. 10 " Xo rule, however, can be made so
precise as to include all cases, and each question as it arises must be determined
by the application of general principles to the particular inquiry involved in
the case before the court." ll In this connection, the conflicts are numerous
for- the decided cases " may be said not only to have become legion, but legion
against legion." 12
680. [Involution of Reasoning] ; Functions of the Judge. 13 As is elsewhere
suggested, a particularly strong forensic necessity for admitting the inference,
conclusion or judgment of a witness must be shown where the act of reasoning
relates to the existence of a controverted fact upon which the jury will be re-
quired to pass. The inertia of the court against admitting such evidence
will naturally be found to be great. 14 The establishment by the proponent of
the fact that such proof is fairly necessary to enable him to bring out his case
will alone suffice to warrant the judge in sanctioning so great a violation of
4. Consol. Gas, etc.. Co : v. State, 109 Md. 434, 33 X. E. 173, 10 L. R. A. 119 (1892) ;
186, 72 Atl. 651 (1909). Flynn v. Boston Electric Light Co.. 171 Mass.
5. Wight Fire-Proofing Co. v. Poc/ekai, 130 39.1, 50 X. E. 937 (1898); Rawls v. Ameri-
111. 139, 22 X. E. 543 (1889); People v. can Mut. L. Ins. Co., suprn : 3 Chamb., Ev.,
Barber, 115 X. Y. 475, 22 X. E. 182 (1889) ; 1819, n. 7.
3 Chamb., Ev., 1819, n. 1. 11. Van Wycklen v. Brooklyn. 118 X. Y.
6. Georgia R., etc., Co. v. Hicks, 95 Ga. 424.24 X. E. 179 (1S90).
301, 22 S. E. 613 (1894). 12. Graham v. Pennsylvania Co., 139 Pa.
7. Ouverson v. Grafton, .1 X. D. 281. 6.1 149, 21 Atl. 151, 12 L. R. A. 293 (1891).
X. W. 676 (1895); 3 ( hamb.. Ev.. 1819, Social customs. The existence and nature
n. 4. What an animal will deem it safe to of social customs is not a matter of special
approach is also a matter of common knowl- knowledge. Compton v. Bates. 10 111. App.
edge. Connelly v. Hamilton Woolen Co., 163 78 (1881) : 3 Chamb.. Ev.. 1819. n . 10.
Mass. 1.16, 39 X. E. 787 (1895). 13. 3 Chamberlayne Evidence. 1820.
8. Brewster v. Weir. 93 Til. App. 588 14. People v. Wright. 93 Cal. 564. 29 Pac.
(1900). 240 (1892): Webb v State. 6 Ga. App. 353,
9. Harber v Manchester. 72 Conn. 675, 45 64 S. E. 1001 (1909); Sokel v. People, 212
Atl. 1014 (1900). 111. 238, 72 X. E. 382 (1904) ; 3 Chamb., Ev.,
10. Illinois Cent. R. Co. v. People, 143 111. 1820, n. 2.
521
INVOLUTION OF REASONING.
680
the right to a jury trial. 15 Much of the same attitude is taken by the presiding
judge toward the tender of an inference, conclusion or judgment of a witness
as to the existence of a fact highly material to the truth of the proposition in
issue. 16 The credibility of a material witness, 17 the existence of any cause for
which liability is claimed in the action 1S or questions as to the extent of a
proper recovery for damages 19 may stand, and are frequently treated as stand-
ing, in the same administrative position. In like manner, the possibility of
doing certain crucial acts may be so highly material to the issue as to exclude the
reasoning of witnesses.-" The province of the jury is equally protected from
the reasoning of witnesses whether the essential fact is physical or psychological,
e.g., as to the intent or intention with which a given act is done. 21 In propor-
tion as the fact covered by the act of reasoning approaches, as it were, the
heart of the jury's province, the more pressing must be the necessity which the
proponent is called upon to show if he is to succeed in securing its reception. 22
15. Evans v. Elwood, 123 Iowa 92, 98 X.
VV. 584 ( 1904 ) ; Furbush v. Maryland Cas-
ualty Co., 131 Mich. 234, 91 X. W. 135, 100
Am. St. Rep. 605 ( 1902) ; Blum v. Manhattan
R. Co., 20 X. Y. Supp. 722, 1 Misc. 119
(1892); Ohio Oil Co. v. McCrory, 14 Ohio
Cir. Ct. 304, 7 Ohio Cir. Dec. 344 I 1896) :
Saunders v. Xorthern Pac. Co., 15 Utah 334,
49 Pac. 646 (1897); 3 Chamb., Ev.. 1820.
n. 3.
16. Chicago, etc., R. Co. v. Kuchkuch, 197
111. 304, 64 X. E. 358 ( 1902 ) ; Dammann v.
St. Louis, 152 Mo. 186, 53 S. W. 932 I 1899) :
People v. Smith, 172 X. Y. 210, 6 X. E. 814
(1902) : Seville v. State, 49 Ohio St. 117, 30
X. E. 621, 15 L. R. A. 516 (1892) : Reiter v.
Mc.Tunkin, 194 Pa. 301, 45 Atl. 46 (1900);
3 Chamb., Ev., 1820, n. 4,
17. Lovell v. Hammond Co., 66 Conn. 500,
34 Atl. 511 (1895) : McElhannon v. State, 99
Ga. 672, 26 S. E. 501 (1896) : Van Bokkelen
v. Berdell, 130 X. Y. 141, 29 X. E. 254
(1891) : 3 Chamb., Ev., 1820, n. 5.
18. Chicago, etc., R. Co. v. Ross, 24 Ind.
App. 222, 56 X. E. 451 (1899) ; Yant Hul v.
Great Xorthern R. Co., 90 Minn. 329, 96 X.
W. 789 (1903); Winters v. Xaughton. 86
N. Y. Supp. 439, 91 App. Div. 80 (1904) ; 3
Chamb., Ev., 1S20. n. 6.
19. Illustrative instances. Thus, a wit-
ness may be forbidden giving his inference as
to the amount of damages caused by the in-
juries arising from some specific defect on
which the cause of action is based.
Alley. Musick v. Latrobe, 184 Pa. 375,
39 Atl. 226 (1898).
Bridge. Bliss v. Wilbraham, 8 Allen
(Mass.) 564 (1864) ; McDonald v. State, 127
X. Y. 18, 27 N. E. 358J1891).
Car. Dooner v. Delaware, etc., Canal Co.,
164 Pa. 17, 30 Atl. 269 (1894).
Dock. Marcy v. Sun Mut. Ins. Co., 1 1 La.
Ann. 748 (1856).
Highway. Edwards v. Worcester, 172
Mass. 104. 15 X. E. 447 (1898); White v.
Cazenovia, 78 X. Y. Supp. 985, 77 App. Div.
547 (1902); Stillwater Turnpike Co. v.
Coover, 26 Ohio St. 520 (1875); 3 Chamb.,
Ev., 1820, n. 7.
B-ailroad track. Roberts v. Chicago, etc.,
R. Co., 78 111. App. 526 (1898).
Sidewalk. Barnes v. Xewton, 46 Iowa 567
(1877): Bradley v. Spickardsville, 90 Mo.
App. 416 (1901 ) : 3 Chamb., Ev., 1820, n. 7.
Street. Baker v. Madison, 62 Wis. 137, 22
X. W. 141. 583 (1885).
20. Shapter v. Pillar, 28 Colo. 209, 63 Pac.
302 (1900) ; Graney v. St. Louis, etc., R. Co.,
157 Mo. 666, 57 S. W. 276, 50 L. R. A. 153
(1900) ; Dittman v. Edison Elec. Illuminating
Co., 83 X. Y. Supp. 1078, 87 App. Div. 68
(1903); 3 Chamb., Ev., 1820, n. 8. Rape.
A skilled witness will not be permitted to
testify whether it is possible to commit rape
upon a mature female. People v. Benc, 130
Cat. 159. 62 Pac. 404 (1900).
21. Tait v. Hall, 71 Cal. 149, 12 Pac. 391
(1886) : Carey v. Moore. 119 Ga. 92. 45 S. E.
998 (1903) : Dwight v. Badgley, 60 Hun 144,
14 X T . Y Supp 49S (1891) ; Devore v. Terri-
tory. 2 Okl. 562, 37 Pac. 1092 (1894): 3
Chamb., Ev., 1820, n. 9.
22. '' It is the very question to be passed
upon by the jury." Hamrick v. State. 134
Ind. 324, 34 X. E. 3 (1893)
681, 682 REASONING BY WITNESSES. 522
Proving this, however, evidence of the reasoning of a witness in the form of a
conclusion 2a or judgment may be received even as to the truth of the precise
proposition regarding which the parties are at issue. 24 This may be done
either in civil 25 or criminal 26 cases. But one condition is imposed. The
proponent must show that he cannot enjoy a reasonable opportunity to establish
his position unless this concession be made. Should the proof, however, fail
in this all-important matter, if the forensic necessity which he establishes is
not such as rationally to warrant such an invasion of the adversary's rights as
he requires should be made, the inference, conclusion or judgment upon the
precise point in issue should be rejected. 27
681. [Involution of Reasoning]; Relevancy; Objective and Subjective. 28
Relevancy in the fact offered in evidence is a necessary condition of its adrnis-
sibility. 29 JS'ot only should it be objectively relevant, but the declarant should
possess such qualities of mind as to make his statement subjectively relevant. 30
The essential elements or conditions of subjective relevancy are two, adequate
knowledge and absence of controlling motive to misrepresent. So subtle may
be the influence of interest as to affect the testimony of a witness to an extent
of which he himself is ignorant. The more potent, however, the operation of
such a motive may be, the less will be the probative force which attaches to the
reasoning so affected. :n
682. [Involution of Reasoning] ; Adequate Knowledge. 22 The presiding
23. National Gas Light, etc., Co. v. Miethke, 18, 97 Pac. 1096; 3 Chamb., Ev.. 1820. n.
35 111. App. 629 (1890) ; Summerlin v. Caro- 16. COXTKA: State v. Hyde, 234 Mo. 200,
lina. etc., R. Co., 133 X. C. 550, 45 S. E. 898 136 S. W. 316 (1911) ; Lemons v State (Tex.
(1903) ; 3 Cham!)., Ev., 1820, n. 11. Cr App. 1910), 128 S. W. 416.
24. Leslie v Granite R. Co., 172 Mass. 468. 27. Sampson y. Hughes, 147 Cal. 62, 81 Pac.
52 X E 542 ( 1899) : Littlejohn v. Shaw, 159 292 (1905); City of Chicago v. France, 124
X. Y. 188, 53 X. E. 810 (1899) ; Daly v. Mil- 111. App. (i48 (1906) ; City of Grand Rapids
watikee, 103 Wis. 58S, 79 X. W. 752 (1899) ; v. Coit, 149 Mich. 668, 113 X. W. 362, 14 De-
3 Chamb., Ev., 1820, n. 12. Should the fact troit Leg. X T . 555 (1907): Winn v. Modern
stated in the act of reasoning be probatirely. Woodmen of America, 138 Mo. App. 701, 119
rather than constituency, relevant, the prob S. W. 536 (1909); Zide v. Scheinberg. 114
ability of its being admitted is greatly in- X. Y Supp. 41 (1909) : Schult/ v. Union Ry
creased Ohio, etc.. Torpedo Co. v Fishburn, Co., 181 X. Y. 33, 73 X T . E. 491 (1905);
61 Ohio St. 60S. 56 X E. 457 ( 1900) Where Fowler v. Delaplain, 79 Ohio St. 279, 87 X. E.
proof of the res gest* is by the use of circum- 260 (1909) ; 3 Chamb., Ev., 1820, n. 17.
stantial evidence it will, in general, be as- 28. 3 Chamberlayne, Evidence, 1821,
sumed by the court that the jury are capable 1822
of drawing all necessary inferences ./Etna L 29. Manayunk Fifth Mut. Bldg. Soc. v.
Ins Co. v. Kaiser. 115 Ky 539, 74 S. W. 203, Holt, 184 Pa. 572. 39 Atl. 293 (1898) ; Hank-
24 Ky L Rep 2454 (1903). witz v. Barrett, 143 Wis. 639. 128 X T . W. 430
25. Western Union Tel Co. v Peagler. 163 (1910) ; 3 Chamb. Ev.. 1821, n 1.
Ala. 38, 50 So 913 (1909) : Johnson v. Wil- 30. Pupra, 671: 3 Chamb., Ev., 1774.
mington City Ry Co. 7 Pen (Del.) 5, 76 31. Patrick v Howard, 47 Mich. 40, 10 N.
Atl. 96 (1905) : 3 Chamb. Ev., 1820, n. 15 W 71 (1881) : 3 Chamb., EV., 1822.
26. People, v. Monat. 200 X. Y. 308. 93 X. 32, 3 Chamberlayne, Evidence, 1823-
E. 982 (1911) ; State v. Bridgham, 51 Wash. 1825.
523
INVOLUTION or REASONING.
682
judge will require that it be proved to his satisfaction 33 either by means of the
statements of witnesses testifying in open court or by the relevant assertions
contained in documents, i.e., directly 34 or else by probative facts, 35 that the
proposed witness possesses sufficient knowledge to make his act of reasoning,
inference, conclusion or judgment, helpful to the jury. 36 The mental qualifica-
tions of the witness must relate to the precise point as to which his inference
is asked. Adequate knowledge upon other heads is immaterial. 37 This proof
of a qualification is usually made in connection with the examination-in-
chief. 38 The burden of showing knowledge rests upon the proponent. 39
Observation and Inference. Merely showing adequate opportunities for
observation is no longer sufficient. 40 Mental capacity to coordinate these ob-
servations into a resultant helpful to the jury must also be shown. 41 Even
association with a given trade or calling is not adequate to enable an observer
to aid the jury as to the more technical aspects of a special pursuit. 42 ' A fairly-
satisfactory test as to the probative value of any inference from observation is
furnished by requiring the proposed witness to state, so far as he can, the
separate phenomena observed by him and used as constituting, in part at least,
the basis of his inference. 43
Position of the Witness. The court may recognize in the claim of the
proposed witness to the possession of suitable knowledge prima facie proof 44
33. Metropolitan West Side El. R. Co. v.
Dickenson, 161 111. 22, 43 X. E. 706 (1896) ;
Bowen v. Boston, etc., R. 'Co., 179 Mass. 524,
61 X. E. 141 (1901) ; Brunnemer v. Cook, etc.,
Co., 85 X. Y. Supp. 954, 89 App. Div. 406
(1903) ; Allen's Appeal, 99 Pa. 196, 44 Am.
Rep. 101 (1881) ; 3 Chamb., Ev., 1823, n. 1.
34. Chicago City R. Co. v Handy, 208 111.
81, 69 X. E. 917 ( 1904) ; Leopold v. Van Kirk,
29 Wis. 548 (1872): 3 Chamb., Ev., 1823,
n. 2.
35. Pennsylvania R. Co. v. Connell, 127 111.
419, 20 X. E. 89 ( 1889) ; Wright v. Schnaier,
70 X. Y. Supp 128, 35 Misc. 37 (1901): 3
Chamb., Ev., 1823. n. 3.
36. San Diego Land, etc., Co. v. Xeale, 88
Cal. 50, 25 Pac. 977 (1891); Zinn v Rice,
161 Mass. 571, 37 X'. E. 747 (1894) : Dooner
v. Delaware, etc., Canal Co, 164 Pa. 17, 30
Atl 269 (1894) : 3 Chamb., Ev , 1823. n. 4.
37. Dore v. Babcock, 72 Conn. 408, 44 Atl.
736 (1899K
38. Reed v. Drais. 67 Cal. 491, 8 Pac. 20
(1885): Campbell v. Russell, 139 Mass. 278,
1 X. E. 345 (1885); Haslam v. Adams Ex-
press Co.. 6 Bosw. <X. Y.) 235 (1860); 3
Chamb., Ev., 1823, n. 6.
39. Denver, etc., R. Co. v. Smock, 23 Colo.
456, 48 Pac. 681 (1897); Pennsylvania Co.
v. Swan, 37 111. App. 83 (1890); 3 Chamb.,
Ev., 1823, n. 7.
40. Lincoln v. Barre, 5 Cush. (Mass.) 590
(1850) ; Page v. Parker, 40 X. H. 47 (1860) ;
State v. Barrett, 33 Or. 194, 54 Pac. 807
( 1898) ; 3 Chamb., Ev., 1824, n. 3.
41. Kirkpatrick v. Snyder, 33 Ind. 169
(1870); Webster v. White, 8 S. D 479, 66
X.. W. 1145 (1896): 3 Chamb., Ev., 1824,
n. 4.
42. Koccis v. State, 56 X. J. L. 44. 27 Atl.
800 (1893). Thus, a worker in soapstone is
not, necessarily, enabled to speak authorita-
tively as to the art of mining it or as to the
probable results of given operations. Page v.
Parker, 40 X'. H. 47 ( 1860) .
43. Chicago, etc., R. Co. v. Kern, 9 Ind.
App. 505, 36 X. E. 381 (1893): Sexton v.
Xorth Bridgewater, 116 Mass. 200 (1874);
Rochester, etc., R. Co. v. Budlong, 6 How Pr.
(X T Y.) 467 (1851); 3 Chamb., Ev., 1824,
n. 8.
44. Scandell v. Columbia Constr. Co.. 64
X. Y. Supp. 232. 50 App. Div. 312 (1900);
State v. Wilcox, 132 X. C. 1120. 44 S. E. 625
(1903). A witness is not necessarily quali-
fied because he asserts the fact. Staats v.
Hausling, 50 X T . Y. Supp. 222, 22 Misc. 526
( 1898) . One who disclaims qualification doeg
683
REASONING BY WITNESSES.
524
of qualifications, 45 permitting the adverse party, if so disposed, to cross-ex-
amine on the point. 46 In any case, the judge, in order to admit the result of
a mental operation, must be able to assume that it was made by one who pos-
sessed adequate data upon which to make it and had the requisite mental
faculties to enable him to reach a sound conclusion. 47 The question is whether
the witness has shown so intimate an acquaintance with the subject-matter as
to enable him to make an inference which would be helpful to the jury. 48
" Courts cannot establish a standard by which to measure expert witnesses.
If they show that they have practical skill or scientific knowledge or experience
as to matters under investigation, they are competent to testify." 49
683. [Involution of Reasoning] ; Ordinary Observer. 50 I n case of the ordi-
nary observer, all that need to be shown is that the proposed witness has had
suitable opportunities for observing the facts which he proposes to state 51 and
has mentality sufficient to enable him to coordinate his impressions into a
simple act of direct inference in a rational way. 52 A mere guess will not be
received. 53 If the jury might reasonably act upon the inference which the
witness states arid the " state of the case " 54 does not require some other course
the testimony will be received. 55 All that is necessary is opportunity to ob-
serve and a fair average intelligence. 56 But such a witness will not be per-
npt necessarily fail to qualify. Walker v.
Scott, 10 Kan. App. 413, 61 Pac. 1091 (1900) ;
Com. v. Williams, 105 Mass. 62 (1870); 3
Chamb, Ev., 1825, n. 1.
45. Minnesota Belt Line R., etc., Co., v.
Gluck, 45 Minn. 463, 48 X. W. 194 (1891);
Sale v Eichberg, 105 Tenn. 333. 59 S. W.
1020 (1900); 3 Chamb., Ev., 1825, n. 2.
46. Goodwine v. Evans, 134 Ind. 262, 33
N. E. 1031 (1892) : Pennsylvania, etc., Canal
Co v Roberts, 2 Walk. (Pa.) 482 (1881).
It is a matter of administration. Finch v.
Chicago, etc., R. Co., 46 Minn. 250, 48 X W.
915 (1891). The rule apparently is other-
wise in Xew York. Walter v. Hangen, 75 X.
Y. Supp. 683, 71 App. Div. 40 (1902) It
would seem to be a matter of right. Davis v.
State, 35 Ind 496, 9 Am. Rep. 700 (1871);
Jaeckel v David, 69 X. Y. Supp. 998, 34 Misc.
791 (1901). 3 Chamb., Ev , 1825, n 3.
47. Campbell v. Cayey, 69 X. Y. Supp. 859,
59 App. Div 621 (1901).
The province of an expert being that of
pure reasoning, his possession of the faculty
of description would not be deemed impor-
tant Smith v Brooklyn, 52 X. Y. Supp.
983, 32 App. Div. 257 (1898).
48. Lee v. Clute. 10 Xev 149 (1875).
49. Sioux City, etc., R. Co. v. Finlayson, 16
Xeb. 578, 20 X. W. 860, 49 Am. Rep. 724
(1884). Whether the jury will credit the
testimony is for them to say. Com. v. Wil-
liams, 105 Mass. 62 (1870); Gleckler T.
Slavens, 5 S. D. 364, 59 X. W. 323 (1894).
The matter of probative force is entirely
with them. Jones v. Erie, etc., R. Co., 151 Pa
30, 25 Atl. 134, 31 Am. St. Rep. 722, 17 L.
R. A. 758 (1892).
50. 3 Chamberlayne, Evidence, 1826.
51. May v. Bradlee, 127 Mass. 414 (1879) ;
People v. Kinney, 124 Mich. 486, 83 X. W
147 (1900); State v. Williamson, 106 Mo.
162, 17 S. W. 172 (1891); Slocovich v. Ori-
ent Mut. Ins. Co., 108 X. Y. 56, 14 X. E. 802
(1888) ; 3 Chamb., Ev., 1826, n. 1.
52. Grand Lodge B. of R. T. v. Randolph,
186 111. 89, 57 X. E. 882 (1900) ; Gilmore v.
Mittineague Paper Co., 169 Mass. 471. 48 X.
E. 623 (1897) ; Conrad v. Swanke, 80 Minn.
438, 83 N. W. 383 (1900); Teerpenning v.
Corn Exch. Ins Co.. 43 X. Y. 279 (1871);
3 Chamb.. Ev., 1826. n. 2.
53. Illinois Cent. R. Co. v. Behrens, 106 111.
App. 471 (1902).
54. Supra. 654; 3 Chamb., Ev . 1742.
55. Goodwin v. State, 96 Ind. 550 (1884).
56. Chicago, etc., R. Co. v. Ingersoll, 65
111. 399 (1872).
525 INVOLUTION OF REASONING. 681
mitted to testify as an expert; 57 nor can hearsay properly be used as consti-
tuting part of the basis upon which the witness purposes to testify. 58 The
court is not called upon to pass upon the qualifications of an ordinary observer.
The question is one of fact and embodies no issue as to technical or scientific
training. 59 The practice, however, is to do so, should the fact to be stated
contain a large proportion of the element of volitional reasoning. 60
Special Facilities for Observation. Residence in a given community or
some other circumstance of a similar nature may confer special opportunities
for observation denied to observers not so situated- 111 Such reasoning is
seldom entirely specific to the facts of a particular case and more completely
resembles a conclusion. 62 Thus, one who lives on a stream may be able to
state that a dam across it has been raised to a height beyond the capacity of
the water course. 03 He knows, as a result of observation and experience,
what the probable effect of a serious of dry seasons would be ; 64 in what way
use may properly be made of its water for floating logs ; 65 whether a given
freshet is greater, in any respect, than those which have come in former
times ; 6G what channel a stream in his neighborhood would take if permitted to
do so. (1T He may be competent to state the probability of being able to locate a
given object, e.g., a human body, 68 within its waters ; to state that the construc-
tion of a railroad embankment R9 or other impediment to the free flow of the
stream had caused its waters to set back ; to state the capacity of a certain
structure to pass on the waters of a particular stream when in a given condi-
tion, as that of freshet.' Of a particular dam, he may have knowledge enough
to be able to say that it is or is not properly constructed, 71 or as to how far
back it will cover land by the waters which it controls. 72
684. [Involution of Reasoning] ; Skilled Witness. 73 One familiar with the
facts or lines of thought known to those engaged in a particular science, trade
57. Cook v. Fuson, 66 Ind. 521 (1879); Rep 130 ( 1875) ; Hot Springs Lumber & Mfg.
Zachary v. Swanger, 1 Or. 92. (1853). Co. v. Revercomb, 110 Va. 240, 65 S. E. 557
58. Scull v. Wallace. 15 Serg. & R. (Pa.) (1009).
231 (1826): Lester v Pittsford. 7 Vt. 158 66. Galveston, etc., R Co. v. Daniels. 9 Tex.
(1835). Civ. App 253, 28 S. W. 548, 711 (1894).
59. Prentis v. Bates, 93 Mich. 234. 53 X. 67. Winter v. Fulstone, 20 Xev. 260, 21 Pac.
W. 153. 17 L. R. A. 494 (1892). 201, 687 (1S89).
60. People v. Young. 151 \. Y. 210, 45 X. 68. Travelers' Ins. Co. v. Sheppard, 85 Ga.
E. 460 (1896). 751, 12 S. E. 18 (1890)
61. Cottrill v. Myrick. 12 Me. 222 (1835) ; 69. Central R , etc.. Co \ 'V ^'4 Ga. 351,
Pettibone v. Smith, 37 Mich 579 (1877) : 10 S. E. 965 (1890) ; 3 Cliaml... K\ . 1826a,
Lincoln, etc., R. Co. v. Sutherland. 44 Xeb. n 9.
526, 62 X. W. 859 (1895) : 3 Chamb., Ev., , 70. McPherson v. St. Louis, etc., R. Co., 97
1826a. n. 1. Mo. 253. 10 S. W. 846 (1889).
62. Infra, 792: 3 Chamb.. Ev., 2291 71. Porter v. Pequonnoc Mfg. Co.. supra,
et seq. 72. Walker v. Davis. 83 Mo. App. 374
63. Porter v. Pequonnoc Mfg. Co., 17 Conn. (1900) : 3 Chamb., Ev., 1826a, n. 12.
249 (1845). 73. 3 Chamberlayne, Evidence, 1827-
64. Pettibone v. Smith, supra. 1829.
65. Dean v. McLean, 48 Vt. 412, 21 Am.
68-i REASONING BY WITNESSES. 526
or calling not within the scope of common knowledge may well be termed a
skilled witness. 74 He may testify equally well, under proper conditions, to
an inference, conclusion, or judgment. The skilled witness is allowed to draw
technical and scientific deductions or conclusions from the existence of a state
of phenomena in which a question of science or art is presented. When thus
acting, he is spoken of as a Skilled Observer. 75 That which he contributes to
the cause of justice may be an act of pure reasoning, passing upon facts as-
sumed to be true and submitted to the intelligence of the witness in the form
of a so called hypothetical question. 76 Under these circumstances, the skilled
witness becomes an Expert? 1
Who are Skilled Witnesses. If the inquiry relate to any form of human
activity which embodies a knowledge denied to other men, not shared by men in
general, or creates special powers, the topic is one for the reasoning of the
skilled witness. 78 A 'little experience, in a casual way, may not suffice to en-
title a witness to be heard as one who possesses skill on the subject. 79 In the
same way, a witness may be rejected if he shows ignorance of some fact material
to giving helpful testimony. 80 In practical questions, experience which im-
plies time, is indispensable. 81 The extent of qualification required in a
skilled witness must be commensurate to the specialized nature of the infer-
ence which the witness offers to state. With the commonly known facts of
any particular form of human activity, the special knowledge 82 of the craft, it
may practically be assumed that any member of it is familiar. 83 No rule
requires that the witness should be a member of the special trade or calling to
which his reasoning relates. 84 Nor can any assumption fairly be made that a
witness is skilled or experienced in a particular trade or calling merely be-
cause the one in which he is actually engaged is so connected with the former
that knowledge and experience acquired in it would be helpful to him in his
own business. 85 It is for the presiding judge to decide as to whether a wit-
74. People v. Temperle, 94 Cal 45, 29 Pac. Ill, 54 X. E. 490 (1899) ; Hall v. Murdock,
709 (1892); Boswell v State, 114 Ga 40,39 114 Mich. 233; 72 X. W. 150 (1897); 3
S. E. 897 (1901) ; Siebert v. People, 143 111. Chamb, Ev., 1828, n. 3.
571, 32 N. E. 431 (1892) ; Emerson v. Lowell 79. Broquet v. Tripp, 36 Kan. 700, 14 Pac.
Gaslight Co., 6 Allen (Mass.) 146, 83 Am 227 (1887).
Dec. 621 (1863); Piehl v. Albany ~R. Co., 162 80. Stevens v. Minneapolis, 42 Minn. 136,
N. Y. 617, 57 N. E. 1122 (1900); Koons v. 43 N. W. 842 (1889).
State, 36 Ohio St. 195 (1880); Fraim v. 81. Otey v. Hoyt, 47 N. C. 70 (1854).
Nat. F. Ins. Co., 170 Pa. 151, 32 Atl. 613, 82. Supra, 375 et seq.; 1 Chamb., Ev.,
50 Am. St. Rep. 753 (1895) ; 3 Chamb., Ev., 870 et seq.
1827, n. 1. 83. Siebert v. People, supra; Hardiman v.
75. Infra, 713 et seq.; 3 Chamb., Ev., Brown, 162 Mass. 585, 39 X. E. 192 (1894);
1947 et seq. Lowe v. State, 118 Wis. 641, 96 X. W. 417
76. Infra, 816 et seq.; 3 Chamb., Ev., (1903) ; 3 Chamb., Ev., 1828, n. 10.
2451 et seq. 84. Christman v. Pearson, 100 Iowa 634, 69
77. Only skilled witnesses may testify as X. W. 1055 (1897); Van Deusen v. Young. 2
experts. Barb. (X Y.) 9 (1858); 3 Chamb., Ev.,
78. Isenhour v. State, 157 Tnd. 517, 62 X. 1828, n 11.
E. 40 (1902); Childs v. O'Leary, 174 Mass. 85. People v. Millard, 53 Mich. 63, 18 N.
527 INVOLUTION OF REASONING. ^ 085,686
ness who undertakes to state special knowledge shall be regarded as qualified
to do so. 80
685. [Involution of Reasoning] ; Conclusions and Judgment of Skilled Wit-
ness. 87 A skilled witness should be able 'so understandingly to observe the
phenomena in all relevant relations and so possessed of mental training and
experience as to enable him to coordinate these phenomena into a result which
the jury may reasonably adopt as their own. ss The court is wan-anted in in-
sisting, so far as consistent with a reasonable opportunity to prove one's case,
that the skilled witness who undertakes to testify as an expert should be af-
firmatively shown to be one whose reasoning, coupled with technical experi-
ence, may guide that of a jury to a sound conclusion.* 9 " The value of the
expert testimony . . . depends largely on the extent' of the experience or
study of the witness. The greater the experience or knowledge, the greater
is the value of the opinion resting upon it." 90 The real question is, as has
been said, as to whether the training, experience, reading or other qualifica-
tions of the witness are sufficient in the opinion of the court to make his infer-
ence, conclusion or judgment, helpful to the jury in respect to the subject-mat-
ter as to which he proposes to tesify. 91 To render the opinion of a non-expert
admissible, the facts upon which the witness is called upon to express his
opinion must be such as men in general are capable of understanding. 92 Xoth-
ing could well be better settled than that a skilled witness may be competent
to testify as an expert although his knowledge on the subject is based entirely
upon his reading. 93 Such a course assumes that the reading is digested and
harmonized into the general experience of the witness and that the latter has
found nothing to oppose to the propositions gained by his reading. 94 It must
have enabled him to form a reasonable conclusion for himself. 9 ''
686. [Involution of Reasoning] ; Judge as Tribunal of Fact. 90 The admin-
istration of the court is greatly modified when the judge himself sits for the
W. 562 (1884): PiehJ v. Albany R. Co.,' 90. Wells v. Leek. 151 Pa. 431, 25 Atl. 101
supra; 3 Chaml).. Ev., 1828, n. 12. (1892).
86. Osborne v. Troup, 60 Conn. 485, 23 Atl. 91. O'Rourke v. Sproul, 147 111. App. 609
157 ( 1801) ; Baxter v. Chicago, etc., R. Co., (1909) ; Spino v. Butler Bros., 113 Minn. 326,
104 Wis. 307, 80 X. \V. 644 (1899). 129 X. W. 590 (1911); State v. Bell, 212
87. 3 Chamberlayne. Evidence, 1830- Mo. Ill, 111 S. W. 24 (1908); 3 Chamb., Ev.,
1832. 1831, n. 5.
88. Zinn v. Rice, 161 Mass. 571. 37 X. E. 92. Combs v. Lake, 91 Ark. 128, 120 S. W.
747 (1894) : Evans v. People, 12 Mich. 27 977 (1909) : 3 Chamb., Ev., 1831, n. 6.
(1863) : Pfau v. Alteria, 52 X. Y. Supp. 88, 93. Jackson v. Boone. 9 Ga. 662, 20 S. E.
23 Misc. 693 (1898) ; 3 Chamb., Ev., 1829, 46 (1894) : Brown v. Marshall, 47 Mich. 576,
n. 3. 11 N. W. 392 (1882) ; 3 Chamb., Ev., 1832,
89. Xational Gas Light, etc., Co. v. Miethke. n. 1.
35 111. App. 629 (1890); Boston, etc.. R. 94. Carter v. State, 2 Tnd. 617 (1851);
Corp. v. Old Colony, etc.. R. Corp., 3 Allen State v. Hinkle, 6 Iowa 380 (1858).
(Mass.) 142 (1861); Eerguson v. Hnbbell, 95. People v. Thacker, 108 Mich. 652, 66
97 X. Y. 507. 49 Am. Rep. 544 (1884); 3 N. W. 562 (1896).
Chamb., Ev., 1830, n. 2.
687 REASONING BY WITNESSES. 528
trial of questions of fact, where, as in case of maritime or admiralty causes, the
court is usually, in a greater or less degree, skilled in the subject-matter under
consideration. 5 * 7 Wide latitude will be accordingly conceded him both in re-
gard to accepting or rejecting witnesses of this class. It has even been held
that the ruling of a trial judge upon the matter of qualification of a skilled
witness is not open to review. 98 This, however, is not generally conceded."
687. [Involution of Reasoning] ; Action of Appellate Courts. 1 An appellate
court will not, as a rule, reverse the action of the judge presiding at the trial
in respect to the admission of opinion evidence, provided that he has acted
reasonably. 2 That the appellate tribunal itself would have acted to a different
effect furnishes no ground for reversing the original ruling. 3 Action which is
clearly unreasonable will, as a matter of course, be reversed. 4 In several
states, to secure reversal, prejudice, as well as error, must be affirmatively
shown. 5
96. 3 Chamberlayne, Evidence, 1833. N. E. 1069 (1900) ; Perkins v. Stickney, 132
97. The Attila, 5 Quebec 340 (1879); Bar- Mass. 217 (1882); Woodworth v. Brooklyn
num v. Bridges, 81 Cal. 604, 22 Pac. 924 El. R. Co., 48 N. Y. Supp. 80, 22 App. Div.
(1889); Hunt v. Trusts and Guarantee Co., 501 (1897); Citizens' Electric Ry., etc., Co.
41 Can. L. J. 653 (1905). v. Bell, 26 Ohio Cir. Ct. R. 691 (1903) ; 3
98. Dole v. Johnson, 50 N. H. 452 (1870) ; Chamb., Ev., 1834, n. 1.
State v. Murray, 11 Or. 413, 5 Pac. 55 3. People v. Goldsworthy, 130 Cal. 600, 62
(1884); 3 Chamb., Ev., 1833, n. 3. Pac. 1074 (1900).
99. Wiggins v. Wallace, 19 Barb. (N. Y.) 4. Fayette v. Chesterville, 77 Me. 28, 52
338 (1855). Am. Rep. 741 (1885); Hawks v. Charlemont,
1. 3 Chamberlayne, Evidence, 1834. 110 Mass. 110 (1872) ; 3 Chamb., Ev., 1834,
2. People v. McCarthy, 115 Cal. 256, 46 n. 4.
Pac. 1073 (1896); Buckeye Mfg. Co. v. Wool- 5. Powers v. McKenzie, 90 Tenn. 167, 16
ley Foundry, etc., Works, 26 Ind. App. 7, 58 S. W. 559 (1891).
CHAPTER XXVII.
INFERENCE FROM SENSATION; ORDINARY OBSERVER.
Inference from sensation; ordinary observer; familiar physical objects, 688.
Negative inferences, 689!
Instinctive inferences, 690.
Reasoned inferences, 691.
Conditions of admissibility of inferences from observation, 692.
Physical inferences; body, 693.
conduct, 694.
identities and correspondences, 695.
how far reasoned inference is essential, 696.
circumstantial evidence, 697.
intoxication, 698.
physical condition of inanimate objects, 699.
Physiological inferences, 700.
Psychological inferences, 701.
insanity ; ordinary observer rejected; Massachusetts rule, 702.
rule in New York, 703.
ordinary observer admitted, 704.
qualification of ability to state details of phenomena, 705.
qualification of suitable opportunities for observation, 706.
qualification of ability to coordinate phenomena, 707.
judicial estiniates as to probative force, 708.
skilled observer, 709.
subscribing witness, 710.
objective mental states, 711.
inference rejected, 712.
688. Inference From Sensation; Ordinary Observer; Familiar Physical Ob-
jects. 1 Every act of observation carries a certain degree of inference, in-
stantly fusing, as it were, a series of sense impressions into a mental concept
of an observed object. Tn no other way can any fact, however simple, be per-
ceived. The result in evidence is simply the statement of a fact. 2 As facts
become more complex, more compound, 3 the proportion of reasoning, almost of
necessity, grows greater. So intimate, in many cases, is the blending, that
1. 3 Chamberlayne, Evidence, 1836- 3. Supra, 28, 32; 1 Chamb., Ev., 44,
1839. 49.
2. 3 Chamb., Ev., 1836, and notes.
529
689
INFEKENCE FROM SENSATION.
530
the court is compelled to accept or reject the whole, despairing of success in
separation. 4 Such is the perception by the ordinary observer of a common-
place object familiar to him. In all cases where the positive perception of a
familiar object is in full accordance with human experience the statement is
readily received as one of fact. 5 The mere act of naming implies a certain
amount of inference, an explanation, a theory, of the actual sense impressions,
which is, as it were, simply drawing upon the common stock of knowledge. 7
The familiar object recognized or named by the witness may be a solid * or
in the form of a liquid, 9 and may equally well constitute the subject of an
intuitive inference.
689. Negative Inferences. 1 " Should it be established to the satisfaction
of the presiding -judge, either by direct u or circumstantial evidence, 1 - that a
witness had such opportunities of observation that, had a certain fact oc-
curred, he could not have failed to observe it, he may be permitted to state that
it did not occur. 13 Such a witness may testify, in his own behalf, as to the
probability 14 that a given scene was presented and he have failed to see it; l5
or that the particular sound should have been made and he not have heard
it. 10 Where the facts attending the nonobservatiori of the witness can be fully
and adequately placed before the jury, a presiding judge is well warranted in
rejecting the inference, 17 either in civil ls or on criminal 1!) proceedings.
4. Auberle v. McKeesport, 179 Pa. 321, 36
Atl. 212 (1897-) ; 3 Chamb., Ev., 1837, n. 2.
5. Hanna v. Barker, 6 Colo. 303 (1882);
Graham v. Pennsylvania Co., 139 Pa. 140, 21
Atl. 151, 12 L. K. A. 293 (1891) ; 3 Chamb..
Ev., 1838, n. 1.
6. Morris v. State, 124 Ala. 44, 27 So. 336
(1900).
7. Turner v. State. 114 Ga. 421, 40 S. E.
308 (1901); Robinson v. Fitchburg, etc., R.
Co., 7 Gray (Mass.) 92 (1856); Shepard v.
Metropolitan El. R. Co., 62 X. Y. Supp. 977,
48 App. Div. 452 ( 1900), aff'd 169 N. Y. 160,
62 N. E 151 (1901) ; 3 Chamb., Ev., 1838,
n. 3.
8. Com. v. Dorsey, 103 Mass. 412 (1869)
(hair) ; Currier v. Boston, etc., R. Co., 34 X.
H. 498 (1857) (hard-pan).
9. Thus, an observer may state that a Driven
article perceived by his senses was alcohol,
Sebastion v. State, 44 Tex. Cr. 508, 72 S. W.
849 (1903); blood, People v. Loui Tung. 90
Cal. 377, 27 Pac. 295 (1891) ; Com. v. Sturti-
vant, 117 Mass. 122, 19 Am. Rep 401 , 1875) :
People v. Burgess, 153 X. Y. 561, 47 X. E.
889 (1897); 3 Chamb., Ev., 1839, n. 2;
chloroform, Miller v. State (Tex. Cr. App.),
50 S. W. 704 (1899) ; gin, Com. v. Timothy, 8
Gray (Mass.) 480 (1857): lager beer. Com.
v. Moinehan, 140 Mass. 463, 5 X. E. 259
(1886); ichiskey, Mam-hall v. Laugh ran. 47
111. App. 29 (1893) ; People v. Marx, 112 X.
Y. Supp. 1011. 128 App. Div. 828 (1908) : or
other intoxicating liquor.
10. 3 Chamberlayne, Evidence, 690.
11. Com. v. Cooler, 6 Gray (Mass.) 350
(1856).
12. .State v. Kidd. 89 Iowa 54, 56 X. W.
263 (1893).
13. Maynard v. People, 135 111. 416. 2f> X.
E. 740 (1890) : E. T. & H. K. Ide v. Boston
& M. R. R., 83 Vt. 66, 74 Atl. 401 (1909) ;
3 Chamb., Ev., 1842. n. 4.
14. Pittsburgh, etc., R. Co. v. Story, 104
111 App. 132 (1902).
15. Territory v. Clayton. 8 Mont. 1, 19
Pac. 293 (1888) ; 3 Chamb., Ev., 1842, n. 6.
16. Crane v. Michigan Cent. R. Co., 107
Mich. 511, 65 X. W. 527 (1895): Casey v.
Xew York Cent., etc., R. Co.. 6 Abb. X". Cas.
(X. Y.) 104 (1879^ ; 3 Chamb.. Ev.. 1842,
n. 7.
17. Com. v. Cooley, supra.
18. Marcott v. Marquette, etc.. R. Co.. 49
Mich. 99. 13 X. W. 374 (1882) : Lunansky v.
Hamburg- American Packet Co., 94 X. Y r . Supp.
531
INSTINCTIVE INFERENCES.
600
690. Instinctive Inferences. 20 Where the facts are few and simple and
the mental result deduced from their existence one as to which men conld not
reasonably differ,' the inference will be received, almost as a matter of course.
Though a line between the two, intuitive inferences and necessary conclusions,
is frequently confused, and though at times it is confessedly difficult to trace it,
in the results arrived at administration has confidence. 21 So long as the
content of reasoning is still comparatively slight the statement of a witness as
to the result of his observation may continue practically one of fact, although,
perhaps, somewhat complicated. 22 Should a new fact be evolved, entirely
distinct from its constituting facts, by means of an act of reasoning, e.g., where
one who has examined a complicated set of books of account reaches a certain
mental result from their perusal, 23 a different administrative situation is pre-
sented. Where a number of component details of observation are appre-
hended by a single act of consciousness, and immediately reduced by the in-
tuitive action of the mind to a familiar designation, such a result is termed a
" collective fact,'' and, as a rule, is admitted. 24 Where the statement of an
inference is not a shorthand method of summarizing collective facts it may be
rejected. 25 Conduct may be summarized as well as other natural phenomena,
and a statement of the conclusions reached will be received as a fact. 2C Where
the element of inference assumes considerable proportion, 27 or the statement
557 (1905). But see City of Chicago v. Mur-
doch, 212 111. 9, 72 X. E. 46 (1904): Ren-
shaw v. Dignan, 128 Towa 722, 105 X. W. 209
(1905) ; 3 Chamb., Ev., 1842, n. 9.
19. Boiling v. State, 54 Ark. 588, 16 S. W.
658 (1891).
20. 3 Chamberlayne, Evidence, 1840,
1841.
21. Aurora, E. & C. Ry. Co. v. Gary. 123
111. App. 163 (1905): Stone v. Stone, 191
Mass. 371. 77 X. E. 845 (1906); People v.
Woodbury, 123 X. Y. Supp. 592. 67 Misc.
481 (1910); 3 Chamb., Ev., 1840, n. 7.
Witness may be asked whether hold of de-
ceased and prisoner was friendly or un-
friendly. See note, Bender ed., 14 X. Y. 561.
22. Southern Cotton Oil Co. v. 'Wallace
(Tex. Civ. App. 1899), 54 S. W. 638; Bird
v. St. Mark's Church, 62 Towa 567, 17 N. W.
747 (1883) ;' Evans v. People. 12 Mich. 27
(1863); see jilso, 3 Chamb., Ev., 1841. nn.
5, 6, 7, 8.
23. Voluminous records. Should the books
of account, prpers. or other documents sub-
mitted to a jury be too voluminous to admit
of separate presentation, abstracts, calcula-
tions or summaries prepared in advance may
be submitted, together with the originals, to
the tribunal. Friek v. Kabaker, 116 Iowa
494, 90 N. W. 498 (1902); State v. Clem-
ents, 82 Minn. 434, 85 X. W. 229 (1901);
Howard v. McDonough, 77 X. Y. 592 (1879) ;
3 Chamb.. Ev., 1841, n. 9.
24. Louisville & X. R. Co. v. Elliott, 166
Ala. 419, 52 So. 28 (1910) ; Winslow v. Glen-
dale Light & Power Co., 12 Cal. App. 530,
107 Pac. 1020 (1910): Gagnon v. Sperry &
Hutchinson Co., 206 Mass. 547, 92 X. E. 761
(1910); Sturgis v. Fifth Avenue Coach Co.,
107 X. Y. Supp. 270, 122 App. Div. 658
(1907) ; 3 Chamb., Ev., 1841, n. 11.
25. Gress Lumber Co. v. Georgia Pine Shin-
gle Co, 120 Ga. 751, 48 S. E. 115 (1904);
United Press v. A. S. Abell Co., 178 X. Y.
578, 70 X E. 1110 (1904); 3 Chamb., Ev.,
1841. n. 12.
26. Thus, that a given person operated a
poolroom, Bailey v. State, 160 Ala. 119, 49
So. 754 (1909); "was managing a place,"
Green v. State. 56 Tex Cr. 191, 120 S. W. 425
(1909); or the like, Crowell v. State, 56
Tex. Cr. 480, 126 S. W. 897 (1909), is merely
a syncopated or shorthand method of summar-
izing a number of obvious subsidiary facts.
27. Williams v. State (Tex. Cr. App. 1908),
114 S. W. 802.
691 INFERENCE FROM SENSATION. 532
relates to the existence of a fact material in the case, 28 or is an irrelevant one, 29
the evidence may be excluded.
691. Reasoned Inferences. 30 Reasoned inferences are a rather undefined
and perhaps unden'nable species of mental act in which the proportion of in-
ference is low as compared to that of observation and which stretches from
intuitive inferences on the one hand to conclusions 31 on the other. Thus, a
witness may go beyond the intuitive mental reaction implied in naming an
object and may describe its form. 32 He may give its color, 33 freshness," 4 loca-
tion 35 and the like. :ui He may, in Uke manner, state the strength 37 and other
salient qualities of the material objects as these are presented by sense per-
cption. ;!S A witness will be permitted to give simple inferences as to the state
of his own consciousness, i.e., to state subjective conditions. Thus, a witness
may declare as to his own physical health 30 or mental state. 40 The existence of
a relevant state of mind may even be a proper subject for cross-examination. 41
A witness may declare as to his financial condition. 42 One who is in pain may
state its existence. 43 He may properly assert the symptoms which his injury
produces, 44 and the results observed by him in his own person flowing from
certain injuries, 4 '" and the result upon his health of a particular cause. 46 He
may declare whether he has been permanently injured, 47 so far as this is a
matter of fact. One who has had reasonably adequate opportunities for ob-
servation may be allowed to state the inference which he has formed from
28. People v. Meert, 157 Mich. 93. 121 X. 40. Casey v. Chicago City Ry. Co., 237 111.
W. 318 (1909); 3 Chamb., Ev., 1841a, n. 5. 140, 86 X. E. 606 (1008): Bayliss v. Cock-
29. State v. Churchill, .52 Wash. 210, 100 roft, 81 X. Y. 363 (1880) ; Grever v. Taylor,
Pac. 300 (1009). 53 Ohio St. (521, 42 X. E. 829 (1895) ; Frame
30.3 Chamberlayne, Evidence, 1843, v. William Penn Coal Co., 97 Pa. 309 (1881) ;
1844. 3 Chamb., Ev., 1843, n. 10.
31. Infra, 792 et seq.; 3 Chamb., Ev., 41. Carey v. Moore, 119 Ga. 92, 45 S. E.
2291 et seq. 098 (1903) : Boyd v. Xew York Security, etc.,
32. Morisette v. Canadian Pac. R. Co., 76 Co., 176 X. Y. 556, 618, 68 X. E. 1014
Vt. 267, 56 Atl. 1102 (1904). ( 1903) ; Holtz v. State, 76 Wis. 99, 44 X. W.
33. State y. Buchler, 103 Mo. 203, 15 S. W. 1107 (1890) ; 3 Chamb., Ev., 1843, n. 11.
331 (1891). 42. Chenault v. Walker, 14 Ala. 151 (1848).
34. People v. Loiii Tung, 90 Cal. 377, 27 43. Xorth Chicago St. R. Co. v. Cook, 145
Pac. 294 (1891) ; 3 Chamb., Ev., 1843, n. 4. 111. 551, 33 X. E. 958 (1893).
35. Carter v. Clark, 93 Me. 225, 42 Atl. 398 44. Chicago, etc., R. Co. v.^m^ert, 119
(1898). 111. 255. 10 X. E. 219 (1887). ,
36. Currier v. Boston, etc., R. Co., 34 X. H. 45. Lombard, etc., Pass. R. /Co. v. Chris-
498 (1857). tian, 124 Pa. 114, 16 Atl. 628 .,(1889).
37. Gerbijr v. Xew York, etc., R. Co., 27 46. Monongahela Water Co. |V. Stewartson,
X. Y. Supp 594 (1894). 96 Pa. 436 (1880).
38. Marschall v. Laughran, 47 111. App. 29 47. Baltimore, etc., Turnpike Co. v. Cassell,
U892). 66 Md. 419, 7 Atl. 805, 59 Am. Rep. 175
39. Roche v. Redinton. 125 Cal. 174, 57 (1887) : Pfau v. Alteria. 52 X. Y. Supp. 88,
Pac. 890 (1899); Lindley v. Detroit, 131 23 Misc. 693 ( 1898) ; 3 Chamb., Ev., 1843,
Mich. S, 90 X. W. 665 (1902) -. Cass v. fnird n. 19.
Ave. R. Co.. 47 X. Y. Supp 356, 20 App. Div.
591 (1897) ; 3 Chamb., Ev., 1843, n. 9.
533
REASONED IXFEEE^CES.
692
the appearances presented by a given individual as to his financial condition, 48
as that he appears to him to be destitute, 49 in need of assistance, 50 or insolv-
ent, 51 or, on the other hand, solvent. 52 lie may be permitted to state, from
personal knowledge, 53 his estimate as to the amount of income enjoyed by a
man whom he mentions. 54 A witness who shall have shown qualities fitting
him to do so may state the moral or aesthetic aspect of the phenomena as the
latter affect his mind. lie may declare whether a certain appearance ob-
served by him is pleasing, 00 goodlooking, or the reverse.
692. Conditions of Admissibility of Inferences from Observation. 56 When
the impressions which the mind of an observer accepts at a glance are so
many, 57 mutually interacting or evasive 5S as to prevent effective individual
statement of the primary phenomena, the observer will usually be permitted
to state them in the secondary form of the effect which they have produced on
his mind. 59 E converse, where the constituting phenomena on which the pro-
posed inference is based can be placed before the jury with satisfactory clear-
ness and completeness 60 and coordinated by them into a reasonable result, 6 1
no administrative ground is furnished for receiving the mental act of the
witness. 02 Accordingly, it is rejected. It will usually be required, for rea-
48. Iselin v. Peck, 2 Rob. I X, Y.) 629
(1864); Hard v. Brown, 18 Vt. 87 (1846);
3 Chamb., Ev., 1843a, n. 1.
49. Bever v. Spangler, 93 Iowa 576. 61 N.
W. 1072 (1895).
50. Sloan v. New York Cent. R. Co., 45
N. Y. 125 (1871).
51. Riggins v. Brown, 12 Ga. 271 (1852);
Thompson v. Hall, 45 Barb. (X. Y.) 214
(1866) -. Richardson v. Hitchcock, 28 Vt. 757
(1856) ; 3 C'hamb., Ev., 1843ai n. 4.
52. Watterson. v. Fuellhart, 169 Pa. 612,
32 Atl. 597 (1895).
53. Stix v. Keith, 85 Ala. 465, 5 So. 184
(1888) ; Iselin v. Peck, supra.
54. State v. Cecil County Com'rs, 54 Md.
426 (1880).
55. Gahagan v. Boston, etc.. R. Co., 1 Allen
(Mass.) 187, 79 Am. Dec. 724 (1861); Mc-
Killop v. Duluth St. R. Co., 53 Minn. 532,
55 N. W. 739 (1893); Castner v. Sliker, 33
X. J. L. 95 (1868): Felska v. Xew York
Cent., etc., R. Co., 152 X. Y. 339, 46 X. E.
613 (1897) : 3 Chamb., Ev., 1844, n. 1. In
what way, however, these phenomena may
affect the more distinctly moral sense may
not be asserted by an ordinary observer
People v. Muller, 96 N. Y. 408*, 48 Am. Rep.
635 (1884).
56. 3 Chamberlayne. Evidence, 1845.
57. Denver, etc., R. Co. v. Pulaski Irr.
Ditch Co., 19 Colo. 367, 35 Pac. 910 (1894) ;
Salem v. Webster, 95 111. App. 120 (1900);
Com. v. Kennedy, 170 Mass. 18, 48 X. E. 770
(1897) ; 3 Chamb., Ev., 1845, n. 8.
58. Holland v. Zollner, 102 Cal. 633, 36
Pac. 930, 37 Pac. 231 (1894).
59. Carter v. Carter, 152 111. 434, 28 N. E.
948, 38 X. E. 669 (1894); Com. v. Mullen.
150 Mass. 394, 23 X. E. 51 (1890); Russell
v. State, 66 Xeb. 497, 92 X. W. 751 (1902) ;
De Witt v. Early, 17 X. Y. 340 (1858);
Cleveland, etc., R. Co. v. Ullom, 20 Ohio Cir.
Ct. 512, 11 Ohio Cir. Dec. 321 (1898); 3
Chamb., Ev., 1845, n. 10.
60. Sievers v. Peters Box, etc., Co., 151
Ind. 642, 50 X. E. 877. 52 X. E. 399 (1898) :
Parker v. Boston, etc.. Steamboat Co., 109
Mass. 449 (1872) ; Van Wycklen v. Brooklyn,
118 X. Y. 424, 24 X. E. 179 (1890) ; Musick
v. Latrobe, 184 Pa. 375, 39 Atl. 226 (1898) ;
3 Chamb., Ev., 1845, n. 11.
61. Xorth Kankakee St. R. Co. v. Blatch-
ford, 81 111. App. 609 (1898) : Xew England
Glass Co. v. Level I. 7 Cush. (Mass.) 319
(18.)1): State v. Mims, 36 Or. 315. (51 Pac.
888 (1900) ; 3 Chamb.. Ev.. 1845. n. 12.
62. Koccis v. State, 56 X. J. L. 44, 27 Atl.
800 (1893); Lund v. Masonic L. Assoc., 81
Hun 287. 30 X. Y. Supp. 775 (1894); 3
Chamb., Ev., 1845, n. 13.
693 INFERENCE FROM SENSATION. 534
sons elsewhere stated, 63 that the witness whose inference from observation is
to be received shoull precede 4 or accompany 5 his testimony as to mental
result with the detail of such of the constituent particulars observed by him as
admit of effective individual statement. This may be done at the stage of
cross-examination. 00 Should the observer be unable to state facts sufficient to
cause the court to feel that the jury may reasonably be aided by the inference
of the witness, his mental act may be rejected."' In addition to other ex-
cellent administrative results which may accrue from requiring the submission
to tjie jury of this detail of alleged supporting facts, 08 it has somewhat the
same useful relation to the inference of the observer that the hypothetical ques-
tion, in its detail of assumed facts, 09 bears to the judgment of the expert. 70
693. Physical 'Inferences; Body. 71 The intuitive or reasoned inference
concerns itself, in main, with physical objects. In general, a witness, after
enumerating such of the constituent details as he can, 72 may state the appear-
ance of objects observed by him. When the court is satisfied that the witness
has had suitable opportunities for observation, 73 that the fact observed is a
relevant one, 71 and that the phenomena as a whole cannot adequately be
placed before the jury, 7r> the effect produced upon the mind may be stated, as a
species of secondary proof of the primary appearances themselves. Promi-
nent among physical objects the phenomena of which may be summarized into
an inference are bodies. An observer may state, for example, the apparent
physical condition of a man. 76 One qualified to do so may assert, as a mere
63. -Supra, 678; 3 Chamb., Ev., 1813. basis of facts observed by others. Pittard v.
64. Com. v. Sturtivant, 117 Mass. 122, 19 Foster, 12 111. App. 132 (1882); Paipe v.
Am. Rep. 401 (1875); People v. Greenfield, Hazard, 5 Hill (X. Y.) 603 (1843); Hayes
23 Hun (X. Y.) 454 (1881); 3 Chamb., Ev., v. Smith, 62 Ohio St. 161, 56 X. E. 879
1845. n. 15. . (1900) ; 3 Chamb., Ev., 1845, n. 22.
65. Healy v. Visalia, etc., R. Co.. 101 Cal. 71. 3 Chamberlayne, Evidence, 1846-
585, 36 Pac. 125 (1804); Atlanta Consol. St. 1850.
R. Co. v. Bagwell, 107 Ga. 157, 33 S. E. 191 72. Cleveland, etc., R. Co. v. Gray, 148 Ind.
(1899); Hardenburgh v Cockroft, 5 Daly 266, 46 N. E. 675 (1897) ; Thompson v Hall,
(N. Y.) 79 (1874); People v Hopt, 4 Utah 45 Barb. (X. Y.) 214 (1866); 3 Chamb.,
247, 9 Pac. 407 (1886); 3 Chamb., Ev., Ev., 1846. n. 1.
1845, n. 16. 73. Hopkins v. Bowers, 111 N. C. 175, 16
66. Lund, v. Tyngsboroueh. 9 Cush. (Mass.) S. E. 1 (1892).
36 (1851); People v Driscoll, 45 Hun 590, 74. Spanpler v. State, 41 Tex. Cr. 424, 55
9 N Y. St. Rep. 820 (1887) ; 3 Chamb., Ev , S. W. 326 (1900).
1845, n 17. 75. Cleveland, etc., R. Co. v. Gray, supra.
67. People v Smith, 172 N Y. 210, 64 76. West Chicago St. R. Co. v Fishman,
N. E. 814 (1902). 169 Til. 196, 48 X. E. 477 (1897); O'Xeil v.
68. Eaton v. Rice, 8 X. H. 378 (1836^ ; Hanscom, 175 Mass. 313, 56 X. E. 587 (1900) ;
Sloan v. Maxwell, 3 X. J. Eq 563 (1831) ; 3 Farrell v. Metropolitan St. R. Co., 64 X. Y.
Chamb, Ev., 1845, nn 19, 20. Supp. 709, 51 App. Div. 456 (1900) : Myers
69. Infra, 816 et srq.; 3 Chamb., Ev., v. Lucas. 16 Ohio Cir. Ct. 545, 8 Ohio Cir.
2451 et seq. Dec. 431 (1898); Tenney v. Smith. 63 Vt.
70. Not an expert. It follows from what 520, 22 Atl. 659 (1891); 3 Chamb., Ev.,
has been said that the ordinary observer will 1846, n. 5.
not be permitted to state his inference upon a
535
PHYSICAL
693
fact, the physical development of a child ; " the indications cf race 78 or those
of a fa-tiis. 71 ' lie may declare- the comparative appearance of two human
persons in some material particular. 80 lie may properly testify as to the
physical appearance of animals, for instance, the condition of cattle/ 1 horses, 82
or other domestic animals. 83 An observer may properly state, under appro-
priate circumstances, what is the appearance ' S4 and visible result ^ of a certain
injury." Its real nature, probable permanence, St obvious implications or
the results to be anticipated, 1 ^ may, however, be subjects as to which the in-
ference of a skilled witness is alone admissible. An unskilled observer fairly
familiar with the use and effects of firearms may testify as to the general na-
ture * 9 or location y " of wounds caused by the use of firearms. Only a skilled
observer can state technical inference, 91 e.g., that a decedent had been shot 92
or as to the effect of an injury of this nature. 93 A salient feature of, physical
appearances which a witness is permitted to state is that of apparent healik**
as visually perceived, or sickness? 5 What, on the other hand, as a true mat-
ter of fact, may be the actual health of a given individual may be a technical
77. Ilubbard v. State, 72 Ala. 164 (1882);
Jackson v. State, 29 Tex. App. 458, 16 S. W.
247 (1891).
78. Hare v. Board of Education, 113 N. C.
9, 18 S. E. 55 (1893).
79. Gray v. Brooklyn Heights R. Co., 76
N. Y. Supp. -20. 72 App. Div. 424 (1902).
80. Brownell v. People, 38 Mich. 732
(187S) : Hare v Board of Education, supra.
See Stephenson v. State, 110 Ind. 358, 11
X. E. 360 (1886).
81. Palmer & Son v. Cowie, 27 Ohio Cir.
Ct. R. 617 (10051: Grayson v Lynch. 163
U. S. 468, 470, 16 S. Ct. 1064, 41 L. ed. 230
(189.1) : 3 Chamh.. Ev., 1847, n. 1
82. Rogers v. Ferris, 107 Mich. 126, 64 N.
W. 1048 (1895); Harris v. Panama R. Co..
3f> X. Y. Super Ct. 373 (1873); 3 Chamb.,
Ev., 1847, n. 2.
83. Rarden v. Cunningham, 136 Ala. 263,
34 So. 26 ( 1002 ) .
84. \Yeber v. Creston. 75 Iowa 16, 39 X'. W.
126 (1888) : Craig v. Gerrish. 58 X. H. 513
(1879); 3 Chamb.. Ev.. 1S48. n. 1.
85. People v. Gibson, lOfi Cal. 4->8. 39 Pac.
864 (1895) : Goshen v. England. 119 Ind 36S.
21 X. E. 977 (1889) : Doyle v. Manhattan R.
Co., 13 X. Y. Supp. 536 (1891); 3 Chamb.,
Ev., 1848. n. 2.
86. Baltimore, etc.. Co. v. Cassell, 66 Md.
419, 7 Atl. 805. 59 Am. Rep. 175 (1886):
Jerome v United Rys Co. of St. Louis, loo
Mo App. 202. 134 S. \Y. 107 (1911): 3
Chamb.. Ev., 1848. n 3. Xon-expert wit-
nesses may testify that marks on the plain-
tin's thumb were teeth marks. Patterson v.
Blatti, 133 Minn. 23, 157 X. \Y. 717, L. R.
A. 1916 E 896 (1916).
87. Dean v. State, 89 Ala. 46, 8 So. 38
(1890).
88. Shawnee-town v. Mason, 82 111. 337, 25
Am. Rep. 321 (1876).
89. People v. Gibson, supra.
90. Balls v. State (Tex. Cr. App. 1897), 40
S. XV. 801.
91. Mitchell v State. 38 Tex. Cr. 170, 41
S. XV. 816 (1897).
92. Monk v. State, 27 Tex. App. 450, 11 S.
XY. 460 (1889).
93. State v Justus. 11 Or. 178, 8 Pac. 337,
50 Am. Rep 470 (1883).
94. Chicago City R Co. v. Yan Yleck, 143
111. 480, 32 X. E. 262 (1892) ; Cleveland, etc.,
Ry Co. v. Hadley, 40 Ind. App. 731, 82 X. E.
1025 (1907): Parker v. Boston, etc.. Steam-
boat Co., 109 Mass. 449 (187*2); Cannon v.
Brooklyn City R. Co., 9 Misc. 282. 29 X. Y.
Supp. 722 (1894): Billings v. Metropolitan
L. Ins. Co.. 70 Yt. 477, 41 Atl. 516 (1898) ;
3 Chamb.. Ev . 1849. n. 1
95. Robinson v. San Francisco Exempt Fire
Co.. 103 Cal. 1, 36 Pac. 955, 42 Am. St. Rep.
93. 24 L R A. 715 (1894); State v. Mc-
Knight, 119 Iowa 79. 93 X. XV. 63 il903):
Corbett v. Troy. 53 Hun 228. 6 X Y. Supp
381 (1889) : Lake Shore, etc., R. Co. v. Gaff-
ney. 9 Ohio Cir. Ct. 32, 6 Ohio Cir. Dec. 94
( 1^94) : 3 Chamb . Ev.. 1849. n. 2. Admia-
sibility on health and disease, see note, Bender
ed. 109 X. Y. 313.
694
INFERENCE FROM SENSATION.
536
inference to be drawn only by a skilled witness. 00 A change in these apparent
conditions may be observed ; and, if observed, may be stated. 97 The transition
may be from sickness to health 98 or vice u&rt>a from health to sickness ; " from
bad to worse * or from worse to better. 2 Mere transitory physical appearances
may be stated by an ordinary observer. The person may be declared to be
nervous, 3 suffering, 4 exhausted, 5 and the like. 6 It may be said, as the result
of his inference, whether a certain person was so well able to help himself as
he had been before a given time, 7 as to whether a faculty appears to have been
impaired, 8 the use of limbs 9 or other parts of the body 10 restricted and the
like. One competent to do so may state whether earning capacity has been
reduced 11 by the particular disease or injury or has not been affected. 12 He
may state, as an inference from the appearances, that a given individual was
under the^influence of narcotic drugs, e.g., morphine. 13
694. [Physical Inferences] ; Conduct. 14 Action, conduct, is more readily
conveyed to the mind by the aid of language than are the appearances of bodies
or other coexistences and is most frequently so described by ordinary observers
96. Reid v. Piedmont, etc., Ins. Co., 58 Mo.
421 (1874); Monroeville v. Weihl, 13 Ohio
Cir. Ct. 689, 6 Ohio Cir. Dec. 188 (1894).
97. Baltimore, etc., Co. v. Cassell, supra;
Parker v. Boston, etc., S. Co., supra; Webb
v. Yonkers R. Co., 51 App. Div. 194, 64 X. Y.
Supp. 491 (1900) ; 3 Chamb., Ev., 1849, n. 5.
98. Salem v. Webster, 192 111. 369, 61 N. E.
323 (1901) ; Harris v. Panama R. Co., supra.
99. Miller v. Dill, 149 Ind. 326, 49 N. E. 272
(1898) ; Com. v. Thompson, 159 Mass. 56, 36
N. E. 1111 (1893) ; Peterson v. Seattle Trac-
tion Co., 23 Wash. 615, 63 Pac. 539, 65 Pac.
543, 53 L. R. A. 586 (1900) ; 3 Chamb, Ev.,
1849, n. 7.
1. Com. v. Brayman, 136 Mass. 438 (1884) ;
King v. Second Ave. R. Co., 75 Hun 17, 26 X.
Y. Supp. 973 (1894) ; 3 Chamb., Ev., 1849,
n. 8.
2. Salem v. Webster, supra.
3. Travelers' Ins. Co. v. Sheppard, 85 Ga.
751, 12 S. E. 18 (1890) ; Webb v. Yonkers R.
Co., supra.
4. Cicero, etc., St. R. Co. v. Priest, 190 111.
592, 60 X. E. 814 (1901): McSwyny v.
Broadway, etc., R. Co., 4 Silvernail 495, 7
X. Y. Rupp. 456 (1889); Shelby v. Clagett,
46 Ohio St. 549, 22 X. E. 407, 5 L. R. A. 606
(1889) ; 3 Chamb., Ev., 1850, n. 2. As to
apparent existence of pain, see Mcllwain v.
Gaebe, 128 111. App. 201) (1909); Morris v
St. Paul City Ry. Co., 105 Minn. 276, 117
N. W. 500, 17 L. R. A. (X. S.) 698 (1908).
5. State v. Ward, 61 Vt. 153, 17 Atl. 483
(1889).
6. Angus v. State, 29 Tex. App. 52, 14 S.
W. 443 (1890).
7. Salem v. Webster, supra. Decreased
bodily capacity. Cleveland, etc., Ry. Co. v.
Hadley, 40 Ind. App. 731, 83 X. E. 1025
(1907) ; Partello v. Missouri Pac. Ry. Co., 217
Mo. 645, 117 S. W. 1138 (1909); 3 Chamb.,
Ev., 1850, n. 5. Diminished mental capac-
ity. Georgia Ry., etc., Co. v. Gilleland, 133
Ga."621, 66 S. E. 944 (1909).
8. Chicago, etc., R. Co. v. Van Vleck, supra;
Adams v. People, 63 X. Y. 621 (1875).
9. Will v. Mendon, 108 Mich. 251, 66 X.
W. 58 (1896); McSwyny v. Broadway, etc.,
R. Co., supra; Collins v. Janesville, 111 Wis.
348, 87 X. W. 241, 1087 (1901); 3 Chamb.,
Ev., 1850, n. 7.
10. Chicago, etc., R. Co. v. Long, 26 Tex.
Civ. App. 601, 65 S. W. 882 (1901).
11. Healy v. Visalia, etc., R. Co., supra;
West Chicago St. R. Co. v. Fishman, supra;
Cass v. Third Ave. R. Co., 20 App. Div. 591,
47 X. Y. Supp. 356 (1897); 3 Chamb., Ev.,
1850, n. 9.
12. Adams v. People, 63 X. Y. 621 (1875) ;
Baker v. Madison, 62 Wis. 137, 22 X. W.
141, 583 (1885) : 3 Chamb., Ev., 1850. n. 10
13. Burt v. Burt. 168 Mass. 204, 46 X. E.
622 (1897); Endowment Rank K. of P. v.
Allen, 104 Tenn. 623, 58 S. W. 241 (1900).
14. 3 Chamberlayne, Evidence, 1851-
1860.
537 PHYSICAL IXFEBENCES. 604:
as to the most common-place matters as well as those more involved. 15 As is
the case' with other animate objects, the acts and habits of animals may be char-
acterized, reproduced by means of mental effects impressed upon the mind, by
the inferences of ordinary observers. Their conduct, 16 whether specific or
habitual, 17 may thus be placed before the tribunal. The feelings or emotions
of which the observed conduct is, as it were, a reaction may also ,be gathered
by observation. 18 An observer properly qualified may state what is the cause
of certain conduct on the part of an animal, for example, may declare his infer-
ence as to what frightened a horse. 19 Where the reasoning of the witness with
regard to acts of conduct is simple and necessary, e.g., that the person in ques-
tion is habitually sober 20 or customarily drunk 21 the statement is mainly one
of fact. In all cases, the observing witness will be required to give such indi-
vidual acts as can effectively be done, selecting those which strike him as
salient and material. 22 Should the inference become involved with a large
proportion of reasoning, the basis for the mental act be extended, the
boundary of conclusion may be passed, and the " opinion " accordingly ex-
cluded. 23 Where the physical or psychological force alleged to dominate con-
duct is one beyond the range of common knowledge and presumably beyond the
personal experience of the witness, his inference will be rejected. 24 The in-
ference as to conduct may be stated in the form of the existence of a habit, 25
as that the person in question probably acted in a particular way because he
was in the habit of so acting. 26 Stating, and even characterizing the salient
peculiarities of individual conduct merely submits to the tribunal a species of
fact. 27 To the habitual conduct observed by him, the witness may, in differ-
ent cases, apply separate standards of measurement. He may, for example,
employ that of reasonable care, 28 the correct performance of duty, 29 fair deal-
15. Taylor v. Security Life & Annuity Co., 23. Stevens v. Larwill, 110 Mo. App. 140,
145 X. C. 383, 59 S. E. 139 (1907) ; 3 Chamb., 84 S. \V. 113 (1904) ; 3 Chamb., Ev., 1854,
Ev., 1851, n. 4. nn. 1, 2, 3.
16. Lynch v. Moore, 154 Mass. 335, 28 N. 24. New York Mut. L. Ins. Co. v. Hay-
E. 277 (1891); Noble v. St. Joseph, etc., R. ward (Tex. Civ. App. 1894). 27 S. W. 36,
Co., 98 Mich. 249, 57 N. W. 126 (1S93); 3 that a given individual acted as if he were
Chamb., Ev., 1852, n. 1. contemplating suicide.
17. Snow v. Price, 1 Tex App. Civ. Cas. 25. State v. David, 25 Ind. App. 297, 58 N.
1342 (1880). E. 83 (1900); Texas & P. Ry. Co. v. Crump
18. Ward v. Meredith, 220 III. 66, 77 X. E. (Tex. 1009), 115 S. W. 26: 3 Chamb., Ev.,
118 (1906) ; Whittier v. Franklin, 46 X. H. 185, n. 1.
23, 88 Am. Dec. 185 (1865). 26. Swift v. Zerwick, 88 111. App. 558
19. Mikesell v. Wabash R. Co., 134 Iowa (1899).
736, 112 N T . W. 201 (1907). 27. Illinois Cent. R. Co. v. Ashline, 171 111.
20. Mitchell v. State. 43 Fla. 584, 31 So. 313, 49 X E. 521 (1898); Pearl v. Omaha,
242 (1901); 3 Chamb., Ev., 1853, n. 1. etc., R. Co., 115 Iowa 535. 88 X. W. 1078
21. Gallagher v. People, 120 111. 179, 11 X. (1902) ; 3 Chamb., Ev., 1855, n. 3.
E. 335 (1887) ; 3 Chamb., Ev.. 1853, n. 2. 28. Wilson v. Xew York, etc., R. Co., 18
22. Leonard v. Allen, 11 Cush. (Mass.) 241 R. I. 598, 29 Atl. 300 (1894).
(1853) ; Storrie v Grand Trunk Elevator Co., 29. Shook v. Pate, 50 Ala. 91 (1873).
134 Mich. 297, 96 N. W. 569 (1903); 3
Chamb., Ev., 1853, n. 3.
095 INFERENCE FROM SENSATION. 53 &
ing 30 and the like. He may decide whether a workman habitually uses me-
chanical skill. 31 How necessary 32 or proper 33 certain acts were the' ordinary
witness may occasionally state as a matter of fact. A competent observer may
even apply a standard of safety to the acts observed by him, 34 stating to what
extent, if any. the conduct was that of a prudent man.
As in the case of animals just considered, an observer may describe human
conduct by stating the effect which it produced on his mind. 35 He may give
the manner of it, the way in which it was done. 36 The inference may, how-
ever, involve too large an element of reasoning by the declarant to be received.
Thus, where the witness is obviously applying his own mental standard rather
than that of the community, e.g., in characterizing certain driving as careful,
meaning that he himself so considers it ; 37 or the speaker may be endeavoring
to describe conduct according to a subjective moral standard. 38 Again, should
the inference enter upon the distinctive field of the jury to an unnecessary ex-
tent the act of reasoning will be rejected. 39 Likewise, where there is am-
biguity and lack of definiteness. 40 A witness may state what inference he has
reached with regard to the mutual relation of two persons from observing their
conduct. 41 He may state his inference as to the object with which certain acts
of conduct were undertaken. 42 Where the proportion of reasoning is too large,
characterization of conduct may be rejected as more nearly in the nature of a
conclusion, 43 as where the witness seeks to state the motives or emotions from
which given conduct has taken its rise, 44 or what influenced a person in a cer-
tain connection. 45 Admissibility, in any particular case, is conditional upon
such a variety of circumstances that no hard and fast rule can well be stated. 46
695. [Physical Inferences]; Indentities and Correspondences. 47 A result
30. Greville v. Chapman, 5 Q. B. 731, 48 E. 38. Com. v. Mullen, 150 Mass. 394, 23 N.
C. L. 731 (1844). E. 51 (1890).
31. Lewis v. Emery, 108 Mich. 641, 66 X. 39. State v. Evans, 122 Iowa 174, 97 X.
\V. 569 (1896) : 3 Chamh., Ev., 1855, n. 7. VV. 1008 (1904) ; Messner v. People, 45 N. Y.
32. Storrie v. Grand Trunk Elevator Co., 1 (1871); 3 Chamb., Ev., 1856, n. 6.
*upra. 40. Supra, 654: 3 Chamb., Ev., 1743;
33. Pittsburgh, etc., R. Co. v. Martin, 157 Baltimore Safe Deposit, etc., Co. v. Berry, 93
1ml. 216, 61 X E. 229 (1901). Md. 560, 49 Atl. 401 (1901).
34. Robinson v. Waupaca, 77 Wis. 544, 46 41. State v. Marsh, 70 Vt. 288, 40 Atl. 836
X. \V. 809 (1890) (1898).
35. Chicago, etc., R. Co. v. Martin, 112 111 42. Oault v. Sickles, 85 Iowa 266, 52 X. \V.
16 (1884); Com. v. Snell, ISO Mass. 12. 75 206 ( 1892) ; Com. v . Galavan, 9 Allen (Mass.)
N. E. 75 (1905) ; Lewis v. Emery, supra; 3 271 (1864) : 3 Chamb., Ev., 1858, n. 1.
Chamb., Ev., 1856, n. 2. 43. Houston & T. C. Ry. Co. v. Lee, 104 Tex.
36. Pittsburgh, etc., R. Co. v. Martin, 82, 133 S. W. 868 ( 1911 ) .
supra; Blake v. People, 73 X. Y. 586 (1878) ; 44. State v. Marsh, supra; Culver v.
State v. Edwards, 112 X. C. 901, 17 S. E. 521 Dwight. 6 C.ray (Mass.i 444 (1856).
<18!3): Xorthern Pac. R. Co v. I'rlin. 158 45. O'Connor v. Madison, 98 Mich 183, 57
I. S. 271, 15 S. Ct. 840, 39 L ed. 977 (1895) : N. W. 105 (1893) : 3 Chamb.. Ev.. 185!). n. 2.
3 Chamh., Ev , 1856, n. 3. 46. St.ite v. Brown. 86 Tnwa 121. 53 X. W.
37. Morris v. East Haven, 41 Conn. 252 92 MS921-. 3 Chamb.. Ev.. 1S60
U874). 47. 3 Chamberlayne, Evidence, 1861.
539 PHYSICAL INFERENCES. 696
of observation frequently summarized by an ordinary witness into an act of
reasoning is that of the identity of a human being, animal or any article of real
or personal property, the ground for receiving which in evidence is that the
primary phenomena of observation are too numerous and minute to be stated by
the witness or coordinated by the jury. 48 To state the same proportion in a
reverse form, where the witness is able to detail to the jury, with substantial
fullness, the matters observed by him; and the jury, in turn, are as well able
as the witness would be to draw all necessary inferences, the act of reasoning
on the part of the witness is rejected. 49
696. [Physical Inferences] ; How far Reasoned Inference is Essential. 50
The inference of identity is a reasoned one. Wherever by constant associa-
tion, or the familiarity created by intense attention, the recognition of a dis-
tinctive appearance arises in the consciousness, a single act of perception,
apparently devoid of any large element of reasoning, may produce intuitively
a mental result of identification. This is the mere apprehension of a fact
and, as such, is admissible. Where, however, the element of observation is
absent and all which is submitted to the court is an act of pure reasoning
from relevant circumstances, it may be more properly rejected. 51 Ordinary
observers cannot, as would be proper in case of experts, 52 state their judgment
upon the facts observed by others. It has even been held that the mental re-
sult of the witness will not be received at all unless accompanied by a detailed
statement of such constituent phenomena as will enable the court to perceive
that the jury might reasonably act in accordance with his inference. 53 In
many instances, this has been excused; in others, it would be impossible to
furnish it. In certain cases, as has been intimated, identification is a fact,
compounded, it is true, but still the result of a single act of perception. 54 In
any event, adequate knowledge must be shown, 55 although a claim to its pos-
session has been held to establish a prima facie qualification. 56 Direct and
positive evidence of identification is not indispensable. 57 Where more force-
ful proof of identity is lacking, even so low a grade of evidence as that a
48. Opden v. People, 134 111 599, 25 X. E. 356 (1896) ; Eastwood v. People. 3 Park. Cr.
755 (1890) ; Com. v Kennedy. 170 Mass. 18, (X. Y. ) 25 (1855) ; Sherlock v. Globe Ins. Co.,
48 X. E. 770 (1897) ; 3 Chamb., Ev., 1861, 7 Ohio Deo. (Reprint) 17 (1868) ; 3 Chamb,
n. 1. Ev., 1863, n. 2.
49. Filer v. Smith, 96 Mich. 347, 55 X. W. 54. Ogden v. People, supra: Com. v. Dor-
999 (1893): People v. Wilson. 3 Park. Cr. sey, 103 Mass. 412 (1869).
(X. Y.I 199 (1856). 55. Roberson v. State. 40 Fla. 509, 24 So.
50. 3 Chamberlayne, Evidence, 1862- 474 (1898).
I860. 56. Turner v MrFee. 61 Ala. 468 71878).
51. Roziene v. Rail. 51 Iowa 328, 1 X. W. 57. Kent v. State, 94 Ga. 703, 19 S. E.
668 (1879); 3 Chamb., Ev., 1862. n. 1. 885 (1894): State v. Howard. 118 Mo. 127,
52. Infra, 816 et seq. : 3 Chamb.. Ev .. 24 S W. 41 (1893); People v Whigham. 1
2451 et seq. Hearsay excluded. State v Wheel. Cr (X. Y.) 115 (1822); 3 Chamb.,
Rutledge. 37 Wash. 523. 79 Pac. 1123 (1905K Ev., 1864, n. 1.
53. Thornton v. State, 113 Ala. 43. 21 So.
697 INFERENCE FROM SENSATION. 54-0
given individual resembled defendant more than lie did any one else known
to the witness, 58 or that two things appear to be similar, 59 has been received.
It is not, however, sufficient identification that the witness " thought " or was
" impressed " to the effect that defendant was identical with the doer of a
given act. 60 That a witness was " satisfied " with the identity of a defendant
is not sufficient. 61 The inference of one who has had sufficient opportunities
for observation on the subject may be received as to the identity of one ac-
cused of crime with the perpetrator of the criminal offense. 02 ^The judicial
identification of animals, 63 may be based, in part, upon the correspondence
observed between marks noticed on the animal and the salient points of its
description. The testimony of witnesses that certain tracks were those of a
horse, .which tracks indicated his motion whether walking, running or jump-
ing though in the nature of conclusions, is admissible." 4
697. [Physical Inferences] ; Circumstantial Evidence. 155 The inference of
identity of a person, material object or the like, may be based upon circum-
stantial evidence, by the use of distinctive mental traits or physical peculiarities.
In this way, a singular motion, 66 e.g., a walk, 67 distinctive odor 8 or well de-
fined noise l59 may act as a mark of identification. The sound in question may
well be that of a voice. 70 Any suitable circumstance may answer the pur-
pose. 71 For the purpose of establishing correspondences and identities, facts
in the realm of objective nature 72 or subjective facts 7:5 may be used. The
inference of a witness may result in identifying a stock of goods 74 or other
chattels. So of the great array of things in general, 75 personal property, mov-
ables, and the like. The evidence of the inference of a witness is admissible
58. State v. Costner, 127 N. C. 566, 37 S. E. 66. State v. Hopkirk, 84 Mo. 278 (1884).
326 (1900). 67. Beale v. Posey, 72 Ala. 323 (18S2).
59. People v. Mitchell, 94 Cal. 550, 29 Pac. 68. Walker v. State, 58 Ala. 303 (1877).
1106 (1892). 69. Com. v. Best, 180 Mass. 492, 62 N. E.
60. People v. Williams, 1 N. Y. Or 336 748 (1902); 3 Chamb., Ev., 1867, n. 4
(1883). 70. Deal v. State, 140 Ind. 354, 39 N. E. 930
61. Templeton v. Luckett, 75 Fed. 254, (1895); Com. v. Hayes, 138 Mass. I8o
21 C. C A. 325 (1896). (1884) ; Wilbur v. Hubbard, 35 Barb. (X. Y.)
62. Kent v. State, supra; Com. v. Kennedy, 303 (1861) ; 3 Chamb., Ev., 1S67, n. 5
supra; State v. Powers, 130 Mo. 475, 32 S. 71. Com. v. Kennedy, supra; Smith Y.
W. 984 (1895): King v. New York Cent., Northern Pac. R. Co., 3 N. D. 55, 58 N. W.
etc., R. Co., 72 X. Y. 607 (1878); State v. 345 (1894).
Harr. 38 W. Va 58. 17 S. E. 794 (1893); 72. 3 Chamb, Ev.. 1868, ns. 1. 2.
3 Chamb . Ev., 1865, n 1. 73. 3 Chamb., Ev., 1869, 1870. See also
63. fhrisman-Sawyer Banking Co. v. Stra- Circumstantial Evidence in case of Pedigree,
horn-Hutton-Evans Commission Co., 80 Mo. 4 Chamb., Ev., 2967 et seq.
App. 438 i 1S99). 74. Altman v Young, 38 Mich. 410 (1878).
64. Craig v. Wabash R. Co.. 121 Towa 471, 75. Askew v. People, 23 Colo. 446. 48 Pac.
96 N. W. 965 (1903). Round. It may be 524 (1897); Com. v. Best, supra: King v
said that a Certain noise was caused by a New York Cent., etc., R. Co., supra: Sherlock
horse crossing a bridge on a lope. Holder v. v. Globe Ins. Co., supra; 3 Chamb., Ev.,
State, 119 Tenn. 178, 104 S. W. 225 (1907). 1871, n. 2.
65. 3 Chamberlayne, Evidence, ' 1867-
1878.
541 PHYSICAL INFERENCES.
as to the indentity of articles of personal property which present inherent
difficulties in the way of proof of identification, 76 such as ordinary coins,
stamped out in large numbers by means of a die, 77 banknotes or pay checks. 78
Identification by the witness may extend to establishing the correspondences
relating to wills 79 and other documents. An observer competent for the pur-
pose may state whether certain offenses showing points of difference are, in
reality, the same.*
Footprints. An observer may properly say whether a certain boot, shoe,
or other specimen of footware is capable of producing particular tracks. 81 On
the other hand, that certain marks were actually made by a given individual or
even were the same as or similar to those made by him 82 may not be shown.
The inference that certain footprints u corresponded " has been received, 83
although there is a lack of unanimity on this point. Delay of careful inspec-
tion for a certain period, without material change in the situation, affects
merely the weight of the evidence. 84 Measurements assumed to be accurate,
taken by the witness, are received in such connection. 85 It is not essential
that they should be exact. 86 The final inference from correspondences as to
what were the actual res gestce is to be reserved for the jury. Thus, whether
a shoe would have made a certain track 87 or in reality did make it, 88 or
whether two footprints corresponded, 89 is a matter for them.
Other Track's. An ordinary observer with sufficient opportunities for ob-
servation may be permitted to state his inference that certain tracks con-
nected with the scene of the res gestce corresponded with those made by the
wheels of a wagon used by a given person 9 " or with the grooves made by the
runners of a sleigh owned by him, 91 or that certain hoof prints might have
been made by the defendant's horse. 92 A witness cannot testify as to. whether
marks were those of a certain horse. 93
Other Correspondences. Where the court is unable to obtain a personal
76. State v. Clark, 27 Utah 55, 74 Pac. 119 83. State v. Millmeier, 102 Iowa 692, 72
(1903). N. W. 275 (1897); Com. v. Pope, supra; 3
77. Gady v. State, 83 Ala. 51, 3 So. 429 Chamb., Ev., 1874. n. 5.
(1887) ; 3 Chamb., Ev., 1872, n. 1. 84. State v. Sexton, supra.
78. Gaines v. State (Tex. Cr. App. 1903), 85. Thompson v. State I Tex. Cr. App.
77 S. W. 10. 1903), 77 S. W. 449.
79. Thompson v. Davitte, 59 Ga. 472 86. Baines v. State, 43 Tex. Cr. 490, 66 S.
(1877). W. 847 (1902).
80. Lamar-Rankin Drug Co. v. Copeland, 7 87. Busby v. State, 77 Ala. 66 (1884).
Ga. App. 567, 67 S. E. 703 (1910) ; 3 Chamb., 88. Livingston v. State, 105 Ala. 127, 16
Ev.. 1873, n. 2. So. 801 (1894) ; 3 Chamb., Ev., 1876, n. 2.
81. Com. v. Pope, 103 Mass. 440 (1869): 89. Id.
State v. Sexton, 147 Mo. 89, 48 S. W. 452 90. State v. Fohvell, 14 Kan. 105 (1874).
(1898) : State v. Langford, 74 S. C. 460, 55 91. State v. Ward. 61 Vt. 153, 17 Atl. 483
S E. 120 (1906) ; 3 Chamh., Ev., 1874, n. 1. (1888).
82. Terry v. State, 118 Ala. 79, 23 So. 776 92. Campbell v. State. 23 Ala. 44 (1853) ; 3
(1897) ; State v. Morris, 84 X. C. 756 (1881 ) Chamb.. Ev., 1877. n. 3.
CONTRA: State v. Reitz, 83 N. C. 634 93. Russell v. State, 62 Neb. 512, 87 N. W.
(1880). 344 (1901) ; 3 Chamb., Ev., 1877, n. 4.
698, 699 INFERENCE FEOM SENSATION. 542
inspection, it may be shown by an observer that two pieces of wood once formed
part of the same stick or block, 94 or that a given metallic splinter came from a
depression in a die. 95
698. Physical Inferences; Intoxication. 90 The statement by an ordinary
observer that a given individual was intoxicated amounts, in many instances,
merely to the statement of a fact and, as such, it is usually received, as a matter
of course. 97 A witness may properly state his inference that a given person
was intoxicated 98 " or had been drinking," 99 or was recovering from a state
of drunkenness. 1 Drunkenness is " easy of detection and difficult of explana-
tion." 2 The convenient practice is followed of requiring that the observer
should state such of the constituting facts as admit of separate enumeration/ 1
An ordinary observer will not be allowed to state that a person whom he had
observed was too drunk to know what he was about. 4 It must not, however, be
overlooked that the marks of intoxication are by no means invariable. One
man may be quite bereft of the faculty of reasoning without presenting marked
physical manifestations of his condition ; 5 while another may present serious
outward appearances without grave mental impairment. " Intoxication affects
different men in different ways . . . much depends upon the kind of man and
liquor." 6
699. [Physical Inferences] ; Physical Condition of Inanimate Objects. 7
Where an attempt by a witness to describe the apparent condition of an inani-
mate object would require enumeration of a large number of constituent phe-
nomena, he is permitted, having given such of the constituting observations as
admit of being so treated, to submit, as a species of secondary evidence, the
94. Com. v Choate, 105 Mass. 451 (1870). 2. Holland v. Zollner, 102 Cal. 633, 36 Pac.
95. Hocking v. Windsor Spring Co., 131 930. 37 Pac 231 (1894).
Wis. 532. Ill N. VV. 685 (1907). Similarity 3. Pierce v. State, 53 Ga. 365 (1874);
of hair. State v. Whitbeck, 145 Iowa 29, 123 Felska v. New York Cent., etc., R. Co., 152
N. W. 982 (1909). N. Y. 339, 46 N. E. 613 (1897). This rule
96. 3 Chamberlayne, Evidence, 1879- is not invariably applied. State v. Cather,
1881. supra.
97. People v. Monteith, 73 Cal. 7, 14 Pac. 4. White v. State, 103 Ala. 72, 16 So. 63
373 (1887); Chicago City R. Co. v. Wall. 93 (1893). Whether a person was too drunk
111. App. 411 (1900) ; State v. Bennett, 143 to walk or even to get out of bed. presents
Iowa 214. 121 N". W. 1021 (1909); Edwards v. a question for the jury. Colbert v. State,
Worcester, 172 Mass. 104, 51 N. E. 447 4 Okl. Cr. 500, 113 Pac. 558 (1910). The
(1898); People v. Gaynor, 33 App. Div. 98, evidence, however, has been received. State
53 X. Y. Supp. 86 (1898) ; 3 Chamb., Ev., v. Dolan, 17 Wash. 499, 50 Pac 472 I 1897) ;
1879, n. 1. 3 Chamb.. Ev.. 1880.
98. State v Cather, 121 Iowa 106, 96 X. W. 5. ' Some men can drink twice a* much
722 (1903). as others without showing it." Com v
99. People v. Sehorn. 116 Cal. 503, 48 Pac. Cleary. 135 Pa. 64. 8f>. 19 Atl 1017 mOfM
495 (1897); Chicago City R. Co. v. Wall, 6. Texarkana. etc.. R. Co. v Fruq-ia (Tex.
supra Civ. App. 1906), 95 S. W. -~63, quoto/l : t<
1. People v. Packenham, 115 N. Y. 200, Moore on Facts, 558; 3 Chamb.. Ev.,
21 X. E. 1035 (1889). 1881.
543
PHYSICAL INFERENCES.
699
effect which the entire observation, taken as a whole, has produced upon his
mind.* lie may declare whether the appearance was similar in certain other
instances. 9 lie may declare an inference as to the existence of any Changes
which have occurred in that appearance between different times, 10 or state
the negative fact that there has been no change. 11 One may properly draw
inferences from his observation as to the systeuiized or disordered arrange-
ment of inanimate objects. Thus, one may state from the appearance of a
room that burglars have been in it. 12 An ordinary observer may state the
appearance of articles as being affected by fire, 13 water 14 or mud. 15 A prop-
erly qualified observer may state his inference that the apparent condition of
an inanimate object resulted from the application of force in some one of its
many forms, 10 or that no force has been applied. 17 The nature, direction and
other qualities of instrumentalities producing an impact upon an inanimate
object may properly be stated by an ordinary observer who is suitably quali-
fied. 18 Thus, it may be shown that a certain mark in the snow was made by
the runner of a sleigh, 19 tracks may be made by footwear 20 of a particular
7. 3 Chamberlayne, Evidence, 1882-
1889.
8. Lucas v. State, 173 hid. 302, 90 N. E.
305 (1910.) ; Illinois Cent. R. Co. v. Behrens,
208 111. 20, 69 X. E. 796 (1904) : Johnson v
State, 88 Xeb. 565, 130 X. \V. 282 (1911);
Dubois v. Baker, 30 X. Y, 355 (1864) : Cleve-
land & S. W. Traction Co. v. Ward, 27 Ohio
Cir Ct. R. 7til (1905); Williams v. Xorton
Bros., 81 Vt. 1, 69 Atl. 146 (1908) ; ) Chamb.,
Ev., 1882, n. 2. Whether a lot of land is
vacant is simply a question of fact. Cary v.
Given, 129 X. Y. Supp. 35 (1911).
9. Yeager v Spirit Lake, 115 Iowa 593, 88
X W. 1095 (1902). Relevancy of the fact
to be proved, in some relation to the issue, is
necessarily assumed as a preliminary to ad-
missibility. Moffatt v. State, 35 Tex. Cr.
257, 33 s! W. .344 (1895).
10. Gallagher v. Williamson, 23 Cal. 331,
83 Am. Dec. 114 (1863); 3 Chamb., Ev.,
1883, n. 1.
11. Allen B. Wrisley Co. v. Burke, 203 111.
250, 67 X. E. 818 (1903) : Pratt v. Mosetter.
9 X. Y\ Civ. Proc. 351 (1886): 3 Chamb.,
Ev.. 1883. n. 2.
12. State v. Shuford, 152 X. C. 809. 67
S. E. 923 (1910). A witness who has ob-
served the condition of a bed may, after stat-
in? that " the sheet was down at the foot
and there was where two people had laid."
declare his inference that it looked as if two
persons had slept there and gotten out in a
hurry. Copeland v. State, 58 Fla. 26, 50
So. 621 (1909).
13. James v. State, 104 Ala. 20, 16 So. 94
(1894); Union Pac. Co. v. Gilland, 4 Wyo.
395, 34 Pac. 953 (1893); 3 Chamb., Ev.,
1884, n. 1. Whether a witness who merely
observed that a certain piece of paper was
burned could testify that " it had the ap-
pearance of being wadding shot from a gun "
has seemed to the Xew York court of appeals
to state so much of a " border question "
that they declined to reverse, in a capital
case, the action of the lower court granting a
new trial on account of its admission. Peo-
ple v. Manke, 78 X. Y. 611 (1879).
14. Com. v. Sturtivant, 117 Mass. 122, 19
Am. Rep. 401 (1875).
15. State v. Marceaux, 50 La. Ann. 1137,
24 So. 611 (1898)
16. Fort v. State, 52 Ark. 180, 11 S. W.
959, 20 Am. St. Rep. 163 (1889). Where
several applications of force have been made
in succession, an observer may state the par-
ticular order in which these were probably
made. Id.
17. Dean v. New York, 45 App. Div. 605, 61
X. Y. Supp. 374 (1899).
18. People v. Mitchell, 94 Cal. 550. 29 Pac.
1106 (1892); People v Fanshawe. 65 Hun
77. 19 X. Y. Supp. 865, 8 X. Y. Cr. 326
(1892): 3 Chamb., Ev., 1885, n. 5.
19. State v. Ward. 61 Vt. 153, 17 Atl 483
(1888).
& . James v. State, supra; Com. v. Pope,
103 Mass. 440 (1869).
609
INFERENCE FKOM SENSATION.
544
size. 21 One may infer that a given impact was made by a shoulder, 22 the feet
of animals, 23 or by a collision, e.g., with a locomotive, 24 or between two ves-
sels. 25 He may infer from its appearance that it was made by one who was
walking 26 or had stopped doing so; 27 by a man running, jumping, 28 or the
like, lie may be allowed to state his inference as to the position occupied by
an object at the time when it was struck.- 9
Safety of Public Places. Where the constituent facts observed by the wit-
ness cannot fully be submitted to the jurors, the inference of the witness, from
the observed appearance of inanimate objects, may be received as to their
being either safe or dangerous, especially should the fact be a collateral one. 30
He will be permitted to apply, under the circumstances indicated, the standard
of safety to his observation regarding the condition of any bridge, 31 crossing, 32
sidewalk 33 or other highway. 34 The inference, in some cases, may resemble
a conclusion. 35 Such a witness may give his inference as to which of two
places is the safer. 36 An ordinary observer may state, in terms of the effect
which they produced upon his mind, the phenomena which made a boat land-
ing, 37 railroad platform, 38 track 39 operated by a steam or trolley line, or any
other structure 40 or place 41 dangerous 42 or safe. 43 The facts must be simple
and the inference necessary. In actions for negligence of this sort, the com-
petency of a workman may be established by the estimates or conclusions of
those who have observed him. 44
21. Littleton v State, 128 Ala. 31, 29 So.
390 (1900).
22. Watkins v. State, 89 Ala. 82, 8 So. 134
(1889).
23. Craig v. Wabash R. Co., 121 Iowa 471,
96 N. W. 965 (1903).
24. Seagel v Chicago, etc., R. Co., 83
Iowa 380, 49 X. W. 990 (1891).
25. Patrick v. The J. Q. Adams, 19 Mo.
73 (1853).
26. Smith, v. State, 137 Ala. 22, 34 So. 396
(1903).
27. Chicago, etc., R. Co. v. Legg, 32 111.
App -218 (1889).
28. Craig v. Wabash R. Co , supra.
29. Fanning v. Long Island R. Co., 2
Thomps. & C. (X. Y.) 585 (1874).
30. Baltimore Fireman's Ins. Co v. Mohl-
man Co., 91 Fed. 85, 33 C. C. A. 347 (1898).
31. Ryan v. Bristol, 03 Conn. 26, 27 Atl
309 i 1893) ; 3 Chamb., Ev., 1886. n. 2.
32. Martin v. Baltimore, etc., R. Co., 2
Marv (Del.) 123, 42 Atl 442 (1895K
33. Atherton v. Bancroft. 114 Mich. 241. 72
N. W. 208 (1807): McXerney v. Reading
City, 150 Pa. 611. 25 Atl. 57 (1892): 3
Chamb . Ev., 1886, n. 4
34. Dean v. Sharon, 72 Conn 667, 45 Atl
963 (1900); Lund v. Tyngsborough, !) Cush.
(Mass.) 36 (1851); Kitchen v. Union Tp.,
171 Pa. 145, 33 Atl. 76 ( 1895) ; 3 Chamb, ET.,
1886, n. 5.
35. Perry v. State, 110 Ga. 234, 36 S. E. 781
(1899).
36. Cookson v. Pittsburgh, etc.. R. Co., 179
Pa. 184, 36 Atl. 194 (1897).
37. Louisville, etc., Mail Co. v. Mossberger,
13 Ky. L. Rep. 927 (1892).
38. Graham v. Pennsylvania Co, 139 Pa.
149, 21 Atl 151. 12 L. R. A. 293 (1891).
39. Louisville, etc., R. Co. v. Tegner, 125
Ala 593, 28 So. 510 (1899); 3 Chamb., Ev.,
1887, n. 3.
40. McNerney v. Reading City, supra;
Bridger v. Asheville. etc., R. Co., 25 S. C. 24
(1885).
41. Kitchen v. Union Tp., supra.
42. Ryan v. Bristol, supra : Lund v Tyngs-
borough, supra; Kitchen v. Union Tp.,
supra; 3 Chamb. Ev., 1887, n 6.
43. Dean v. Sharon, supra; Belts v. Chi-
cago, etc., R. Co., 92 Iowa 343. 60 X \V. 623
MK94) : Baltimore, etc., R. Co. v Cassell. 06
Md. 419. 7 Atl 805 (1886): 3 Chamb., Ev.,
1S87, n. 7.
44. Lake St. El. R Co. v. Fitzgerald, 112
111. App. 312 (1904).
545 PHYSIOLOGICAL INFERENCES. 700,701
Soundness. The witness may not only apply the standards of safety and
utility but also that of soundness, stating that certain inanimate objects are
sound 45 or unsound. 4 " In any case, the time indicated by the inference must
be such as to be relevant to the proposition put in issue in the action. 47
Suitability. An ordinary observer may, under like conditions, be per-
mitted to state his inference as to suitability for a given purpose, as whether a
certain building was suitable for a particular purpose^. 48 He may declare the
mental impression held by him as to the adaptability, for its appropriate use,
of any car, 49 piece of machinery 50 or any other form or combination of mat-
ter, 51 the relevant appearances of which lie on the surface.
700. Physiological Inferences. 52 Physiological inferences, the results of
observation, are conveyed to the mind by the faculty of intuition, with, as a
rule, but slight admixture of the element of reasoning. The result is re-
garded by judicial administration as a mere statement of a psychological fact
and, as such, is received without objection. 53 Thus, a witness may be allowed
to say that he has suffered internal injury, 54 or to state the effect on his health
of certain acts, 55 or to declare the nature, location and other facts concerning
any sensation of pain which he may have suffered 56 or be suffering.
701. Psychological Inferences. 57 Psychological facts are entirely mental,
conditions, phases, states of mind. As such, they are not subject to physical
observation, although their manifestations undoubtedly are. The person
whose mind is in question may, as has been seen, 58 testify directly to their
existence. 59 The element of reasoning, of inference, is practically elimi-
nated. Because of the difficulty of detailing observed phenomena into a
45. Illinois Cent. R. Co. v. Foulks, 191 111. R. Co., 135 Mo. App. 230, 115 S. W. 452
57, 60 X. E. 890 (1901); Brooks v. Sioux (1909); Cass v. Third Ave. R. Co., 20 App.
City, 114 Iowa 641, 87 N. W. 682 (1901); Div. 591, 47 N. Y. Supp. 356 (1897); 3
Merkle v. Bennington Tp., 68 Mich. 133, 35 Chamb., Ev., 1890, n. 4.
N. W. 846 (1888) ; 3 Chamb., Ev., 1888, n. 54. Chicago & J. E. Ry. Co. v. Patton, 122
3. 111. App. 174 (1905) : Pfau v. Alteria, 52 N.
46. Johnson v. Detroit, etc., R Co., 135 Y. Supp. 88, 23 Misc. 693 (1898); Lombard,
Mich. 353, 97 N W. 760 (1904); Reynolds v. etc., Pass R. Co. v. Christian, 124 Pa. 114,
Van Buren, 31 N. Y. Supp. 827, 10 Misc. 703 16 Atl. 628 (1889) : 3 Chamb.. Ev., 1890, n.
(1895). 5.
47. XVolscheid v. Thome, 76 Mich. 265, 43 55. McDonald v. City Electric Ry. Co., 144
N. W. 12 (1889). Mich. 379. 108 N. W. 85 (1906).
48. Rust v. Eckler. 41 X. Y. 488 (1869). 56. Xorth Chicago St. R. Co. v. Cook, 145
49. Betts v. Chicago, etc., R. Co., supra. 111. 551, 33 X. E. 958 (1893).
50. Sievers v. Peters Box, etc., Co., 151 57. 3 Chamberlayne, Evidence. 1891-
Ind. 642. 50 X. E. 877. 52 X. E. 399 (1898) ; 1901.
3 Chamb., Ev., 1889, n. 3. 58. Supra, 653; 3 Chamb., Ev., 1741d,
51. Birmingham Paint & Roofing Co. v. 1741e.
Cillespie. 163 Ala. 408. 50 So. 1032 (t909). 59. Jeddrey v Boston & X. St. Ry. Co., 198
52. 3 Chamberlayne, Evidence. ISflO. Mass. 232. 84 X T E. 316 (1908^; Providence
53. Roche v Redington. 125 Cal. 174, 57 Mach. Co. v. Browning. 72 S. C. 424. 52 S. E.
Pac. 890 I 1899) ; Wray v. Warner, 111 Iowa 117 (1905) ; 3 Chamb., Ev., 1891, n. 4.
64, 82 N. W. 455 <1900); Wise v. Wabash
701
IXFEKEXCE FEOM SENSATION.
546
reasonable presentation, the instances in which the secondary evidence of the
inference of the observer as to the mental condition, weak or strong, sound or
unsound, of a designated individual, is received are numerous."" An ordinary
observer may, as a rule, state appearances observed by him regarding mental
condition and also, where these are too numerous to be placed before the jury,
his inferences from them. 61 The witness is accordingly permitted to give his
deduction as to the objective condition of the mind in question, that it was,
on the one baud, bright and quick, 02 judicious,' 13 rational " 4 and the like ; or was,
on the other hand, easily impressed," 5 fickle-mi tided," simple-minded, 07 and
so forth. 08 The condition of mind to which the inference relates must be
relevant to the proposition in issue." 9 The time covered by the observation
must not be too remote to be probative. 70 The witness, as a rule, should be
required to state the ground for his opinion. 71 The presiding judge must be
satisfied that the witness has had such opportunities for observation that the
jury might 'rationally act in accordance with the inference which he proposes to
draw. 7 - Where it appears that the inference is based upon information fur-
nished by others, 73 or that the facts disclosed by the preliminary detail are in-
sufficient to warrant the jury in acting upon them, 74 the mental result reached
by the witness will be excluded. Only a skilled witness will be permitted to
testify tu his inference that certain conduct was based upon a delusion or an
irresistible impulse, 75 or that a given person was subject to a similar impair-
60. Holland v. Zollner, 102 Cal. 633, 30
Pac. 930, 37 Pac. 231 (1894) ; Chicago Union
Traction Co. v. Scanlon, 136 111. App. 212
(1907); Smith v. Hickenbottom, 57 Iowa
733, 11 X. W. 664 (1882) ; Jones v. Thomas,
218 Mo. 508, 117 S. W. 1177 (1009); De
Witt v. Barly, 17 X. Y. 340, 348 (1858); 3
Chamb., Ev., 1892, n. 1.
61. Brown v. Me Bride, 121) Ga. 02. 58 S E.
702 (1007) ; Mayville v. French, 246 111. 434,
92 X. E. 919 i 191(1) ; 'Hewitt v. Taunton St.
R. Co, 167 Mass 4S3, 46 X. E. 106 (1807) :
Shelton v. Southern Ry. Co., 86 S C. 08, 67
S. E. 899 (1910) ; 3 Chamb , Ev., 1893, n. 1.
62. Martin v. Slate, 90 Ala. 602, 8 So. 858
(1S91).
63. St. Louis, etc., R. Co. v. Shifflet (Tex.
Civ. App. 1900), 56 S. W. 697.
64. Holland v. Zollner, supra; Paine v. Al-
drich, 133 X. Y. 544, 30 X. E. 725 (1892);
3 Chamb., Ev , 1893, n. 4.
65. Vivian's Appeal, 74 Conn. 257, 50 Atl.
707 (1901); Howell v. Howell. 50 Ga. 145
(1877)
66. People v. Worthingrton, 105 Cal. 166,
38 Pac. 689 (1894) ; Mills v. Winter, 94 Ind.
320 (1883).
122 S. W. 68. On the other hand, that a
person "acted foolish" has been rejected.
Wallace v. Whitman, 201 111. 59. 66 X. E. 311
(1003).
68. Burney v. Torry, 100 Ala. 157, 14 So.
685 (1893) ; 3 Chamb., Ev., 1893, n. 8.
69. Com. v. Buccieri, 153 Pa. 535, 26 Atl.
228 (1803).
70. In re Hull, 117 Iowa 738, 89 X. W. 970
(1002); Ramsdell v- Ramsdell, 128 Mich.
110, 87 X. W. 81 (1001); 3 Chamb., Ev.,
1894, n. 2.
71. Graham v. Deuterman, 244 111. 124.
91 X. E. 61 (1910): Barker v. Comins, 110
Mass. 477 (1872); McConnell v. Woodworth,
162 Mich. 683. 127 N. W. 808 (1910): 3
Chamb , Ev., 1895, n. 1. See, however, Ma-
natt v. Scott, 106 Iowa 203, 76 X. W. 717
(1808).
72. Dowell v Dowell, 152 Mich. 104, 115
X. W 072 (1908): 3 Chamb., Ev., 1805,
n. 3.
73. Snell v. Weldon. 230 Til. 270, 87 N. E.
1022 (-1000).
74. Rlackman v. Andrews, 150 Mich. 322,
114 X W. 218 (1007).
75. Patterson v. State, 86 Ga. 70, 12 S. E.
67. Koppe v. Koppe (Tex. Civ. App. 1909), 174 (1890).
54;
PSYCHOLOGICAL INFERENCES.
701
merit in mental condition. 76 A witness who has observed the mental condi-
tion of another at two periods may be permitted to state whether he has noticed
a change, 1 ' for the worse/ 8 or for the better. 79 lie may declare his inference
that there has been no change. s " An ordinary observer who has enjoyed suit-
able opportunities for observation may state an inference as to whether a given
individual was conscious s: or unconscious, 82 the observed phenomena upon
which he bases his inference being detailed to the court. 83 Among inferences
which an observer of his own mental state may draw is that of conscious-
ness.* 4
Should the question be so drawn as to involve an inference on the precise
point upon which the jury are to pass, e.g., mental capacity to understand the
nature ami character of an act, 85 it will, in general, be objectionable and so re-
jected.* e Thus, a witness, however skilled in treating mental disorders, will
not be allowed to state an inference as to whether A. had the mental capacity
to draw a will,*' execute a contract, s8 sign a deed, 89 or transact business gen-
erally. 90 I pon cross-examination such a question may be permitted ; 91 and
it has occasionally been received even upon direct. 92 The analogous inference
of the witness as to whether the person observed has the mental capacity to be
criminally responsible for his acts 93 has been deemed an invasion of the prov-
ince of the jury. Such a witness is not properly to be regarded as an expert
76. State v. Winter, 72 Iowa 627, 34 X. W.
475 (1887); 3 Chamb., Ev., 1896. n. 4.
77. Weber v. Delia Mountain Min. Co ,
14 Ida. 404. 94 Pac. 441 (1908); Chicago
Union Traction Co. v. Lawrence, 211 111.
373, 71 X. E. 1024 (1904).
78. Manatt v. Scott, supra : Clark v. Clark,
168 Mass. 523. 47 X. E. 510 (1897): 3
Chamb.. Ev., 1897, n. 2.
79. West Chicago St. Ry. Co. v. Fishman,
169 111. 196. 48 X. E. 447 (1897): Com.
v. Brayman, 136 Mass. 438 ( 1884) : 3 Chamb..
Ev.. 1897. n. 3.
80. Hertricli v. Hertrich. 114 Iowa 643,
87 X W. 6S9 i 1901).
81. Pennsylvania Co. v. Xewmeyer. 129
Ind. 401, 28 X. E. 860 (1891) : Galloway v.
San Antonio, etc., R. Co. (Tex. Civ App.
190., i r 7* S. W. 32.
82. Chica.c-o City R. Co. v. VanVleck. 143
111. 480. 32 X. E. 262 (1892).
83. Pennsylvania Co. v Xewmeyer, sitprn
84. " To tbe processes of his own mind he
is uiidoubtedlv the be<t witness." Hat Sweat
Mfir. Co v. Warring. 46 Fed. 106 (1891):
3 Chamb.. Ev.. 1898.
85. Green v. State. 64 Ark 523. 43 S. W.
973 (1898); McGibbons v. McGibbons, 119
Iowa 140, 93 X W. 55 (1903). The prac-
tice is otherwise where the point to which
the inference is directed is a collateral one.
Koppe v. Koppe (Tex. Civ. App. 1909), 122
S. W. 68.
86. Swick v. Sheridan, 107 Minn. 130, 119
N. W. 791 (1909) ; Checkering v. Brooks, 61
Vt. 554, 18 Atl. 144 (1889).
87. Baker v. Baker, 202 111 595, 67 X. E.
410 (1903); May v Bradlee, 127 Mass. 414
(1879) ; 3 Chamb., Ev., 1899, n. 3.
88. Smith v. Smith, 157 Mass. 389, 32 N.
E. 348 (1892).
89. Langenbeck v Louis, 140 Cal. 406. 73
Pac 1086 (1903) +
90. McGibbons v. McGibbons. supra : Smith
v. Smith, supra. Inference received. Beard
v. Southern Ry Co., 143 X. C. 137, 55 S. E.
505 ( 1906 )
91. hi re Daniels. 140 Cal. 335, 73 Pac.
10.-^ (1903) : State v. Leehman. 2 S. D. 171,
49 X. W. 3 (1891): 3 Chamb., Ev., 1899,
n. 7.
92. Xeely v. Sheppard, 190 111. 637. 60 X
E. 9-22 (1901): Pflueger v. State. 46 Xeb
493. 64 X. W. 1094 (1895): 3 Chamb.. Ev.,
1899. n. 8.
93. People v. Lake. 12 X. Y. 358 (1855).
Compare Pflueger v. State, supra.
I 702 INFERENCE FROM SENSATION. 548
and should not be cross-examined as one. 94 A witness with adequate facilities
for observation may give his inferences drawn from the appearances presented
to him, from time to time, as to the mental characteristics of an individual who
has come under his notice. 95 Thus he may state that a person of average in-
telligence 98 is absent minded yT and so forth.
702. [Psychological Inferences]; Insanity; Ordinary Observer Rejected;
Massachusetts Rule.^ 8 The original and, for a time, controlling influence in,
favor of rejecting the inference of unskilled witnesses as to insanity was the
supreme judicial court of Massachusetts." It is, for example, distinctly held,
in a late case on a will contest, that statements that testator's powers seemed
to be complete and perfect, and that he was in possession of clear faculties and
mental powers were conclusions and not responsive to questions calling for
observation of testator's powers of comprehension, memory, etc., and that the
direct inference of the witness as to testator's mental capacity was properly
rejected. 1 The rule is spoken of as " well settled law." Later Massachu-
setts rulings seem to largely discredit the doctrine. Where the direct inference
of a witness as to insanity is offered, it will be excluded under the rule. Almost
anything, short of this, he is permitted to give. 3 The earlier law in Alabama, 4
and Xew Hampshire, 5 excluded the inference as to insanity of all but skilled
witnesses, but, the rule has since been changed and the inferences of ordinary
observers are now received in evidence. 6 Maine follows Massachusetts, in re-
jecting the inference of an ordinary, or, as he is frequently called, " non-ex-
pert " witness, as to the insanity of one who has come under his observation. 7
The ruling, once adopted, has been maintained, although restricted to the nar-
rowest practical limits. 8
94. People v. Silverman, 181 N. Y. 235, ness. Barker v. Comins, 110 Mass. 477
73 N. E. 980 (1905). (1872); McCoy v. Jordan, supra; 3 Chamb.,
95. State v. Wright, 112 Iowa 436, 84 X. Ev., 1906, n. 7. A witness may be asked
\V. 541 (1900); Hewitt v. Taunton St. R. "whether he had observed any fact which
Co., 167 Mass. 483, 46 N. E. 106 (1897) ; 3 led him to infer that there was any derange-
Chamb., Ev., 1901, n. 1. ment of the intellect." Gorham v. Moor,
96. Hewitt v. Taunton St. R. Co., supra. supra; 3 Chamb.. Ev., 1906, n. 8. He may
97. State v. Wright, supra. assert or deny that there has been any change
98. 3 Chamber layne, Evidence, J 1902- in mental powers. Clark v. Clark, 168
1906. Mass. 523, 47 X. E. 510 (1897). Upon cross-
99. Gorham v Moor, 197 Mass. 522, 84 N. examination, the direct inference of the ordi-
E. 436 (1908); Ratigan v. Judge, 181 Mass nary observer may be elicited. Hogan v.
572, 64 X. E. 204 (1902) ; 3 Chamb., Ev., Roche, 179 Mass. 510, 61 X. E. 57 (1901).
1906, n. 1. Reasons assigned for rule. May 4. Hembert v. Urown, 14 Ala. 360 (1848);
v. Bradlee, 127 Mass. 421 (1879). 3 Chamb., Ev.. 1903, n. 3.
1. McCoy v Jordan, 184 Mass. 575, 69 X. 5. State v. Archer, 54 X. H. 465 (1874) ; 3
E. 358 (1904) Chamb, Ev.. 1903, n 5.
2. Cowles v. Merchants, 140 Mass 377, 5 X 6. Hardv v Merrill, 56 X. H 227, 22 Am.
E. 288 (18*6). Rep. 441 (1S75); Ragland v. State, 125 Ala.
3. The details of appearance or conduct, 12, 27 So. 983 (1899).
for example, may be stated with the utmost 7. Wyman v. Gould, 47 Me 159 (1859).
fullness and even characterized by the wit- 8. Robinson v. Adams, 62 Me. 369, 410, 16
549 PSYCHOLOGICAL INFERENCES. 703, 704;
703. [Psychological Inferences] ; Rule in New York. 9 In Xew York, the
inference of the ordinary observer was at first rejected, 10 as under the present
rule, but upon subsequent hearing of a case, was admitted. 11 The latter
ruling, in complete uniformity with the general practice, was itself reversed in
later cases J ~ and in the state of Xew York, the inference of the ordinary
observer as to insanity, in itself considered, continues to be excluded. The
court stands upon stronger ground in ruling that an ordinary observer cannot
testify as to an inference of sanity upon the basis of observations made by
others. 13 'While the direct inference of the ordinary observer as to insanity,
eo nomine is excluded, he may properly be asked whether the appearances
which he observed or the acts which he noticed were " those of a rational or an
irrational man." 14 With a difference largely of words, he may be asked as
to how he was impressed by certain acts of the person in question in respect to
their rational or irrational character. 10 In general the ordinary observer may
be asked as to what impression a given act or appearance produced in his
mind, 10 e.g., whether he noticed anything which seemed to him to indicate in-
sanity. 17 Violations of the strict letter of the rule are not regarded as preju-
dicial error. 18 A witness will not be allowed to state his inference as to his
own mental condition at a particular time in the past. 19
704. [Psychological Inferences] Insanity; Ordinary Observer Admitted. 20
In England and in the majority of the American states, the inference of the
ordinary observer as to the mental condition of insanity has been received. 21
Am. Rep. 473 (1870); Fayette v. Chester- 9. 3 Chamberlayne, Evidence, 1907.
ville, 77 Me 28, 52 Am. Rep. 741 (1S851. 10. Dewitt v. Barley, 9 X. Y. 371 (1853).
Correct question to non-expert witness. 11. De Witt v. Barly, 17 X. Y. 340 (1858).
An attorney before he tries a will case 12. Wyse v. Wyse, 155 X. Y. 367, 49 X. E.
should be sure that he knows just what ques- 942 (1898) : People v. Koerner, 154 X. Y.
tions he can ask a non-expert witness as to 355, 48 X. E. 730 (1897); 3 Chamb., Ev.,
sanity and as the practice in each jurisdiction 1907. n. 3.
is different he must examine the decisions of 13. Bell v. McMaster, 29 Hun (X. Y.) 272
his own state on the subject. The difficulty (1883).
is that we are here really trying to get 14. Johnson v. Cochrane, 159 X. Y. 555, 54
and petting the opinion of the non-expert but X. E. 1092 (1899) ; 3 Chamb., Ev., 1907, n.
the courts realizing its value have in many 5.
states permitted these questions to be asked 15. White v. Davis, 62 Hun 622, 17 X. Y.
provided certain forms of language are used. Supp. 548 (1891) ; 3 Chamb., Ev., 1907, n.
For example in Massacluisetts the witness 6.
may be asked " Whether you ever observed 16. People v. Youngs, 151 X. Y. 210. 45
anything in A which led you to infer in X. E. 460 (1896).
your own mind that he was a cra/y or cracked 17. People v. Krist, 168 X. Y. 19, 60 X. E.
man?" See May v. Bradlce. 127 Mass. 414. 1057. 15 X. Y. Cr. 532 (1901) ; 3 Chamb.. Ev.,
This is a leading case on the subject and other 1907. n. 8.
forms f question embracing the same idea 18. Wyse v. Wyse. supra.
have been sanctioned by later cases. 19. O'Connell v. Beecher. 21 App. Div. 298,
In New York the question may be asked 47 X. Y. Supp. 334 (1897).
" Will you tell whether the acts which you 20. 3 Chamberlayne, Evidence, 1908-
have described, impressed you at the time as 1910.
being rational or irrational?" 21. Green v. State, 64 Ark. 523, 43 S. W.
INFEEENCE FEOM SENSATION.
550
As in case of the more active form of insanity, an ordinary observer, with
suitable opportunities for observation, may state his inference whether a given
individual is a lunatic 22 or weak minded. Such a witness will be required to
give, as a preliminary matter, a statement of such of the constituting details
upon which his inference is based as admit of individual enumeration. 23 A
witness may be allowed to declare whether he noticed anything unusual, pecul-
iar, unnatural 24 or tending to indicate insanity. 25 A competent observer may
be asked as to past mental conditions, e.g., whether a given person has ever
been crazy. 26 The inference or estimate of witnesses of this type must, how-
ever, be based upon observation. Mere opinions, characterizations, and con-
clusions of non-expert witnesses as to the insanity of a person not observed by
them are in themselves incompetent. 27 The California code of civil pro-
cedure 28 limits the non-expert witnesses who are competent to testify as to an
973 (1898); In re Keithley, 134 Cal. 9, 66
Pac. 5 (1901); Hayes v. Candee, 75 Conn.
131, 52 Atl. 826 (1902); Turner v. Amer.
Security & Trust Co., 29 App. D. C. 460
( 1907 ) ; Fields v. State, 46 Fla. 84, 35 So.
185 (1903); Herndon v. State, 111 Ga. 178,
36 S. E 634 (1900); State v. Shuff, 9
Ida. 115, 72 Pac. 664 (1903); Mayville v.
French, 246 111. 434, 92 N. E. 919 (1910);
Swygart v. Willard, 166 Ind. 25, 76 X. E. 755
(1906); Hertrich v. Hertrich, 114 Iowa 643,
87 N. W. 689 (1901); State v. Rumble, 81
Kan. 16, 105 Pac 1 (1909) ; Abbott v. Com.
107 Ky. 624, 55 S. W. 196 (1900) ; State v.
Coleman, 27 La. Ann. 691 (1875); Grill v.
O'Dell, 113 Md. 625, 77 Atl. 984 (1910) ; Peo-
ple v Casey, 124 Mich. 279, 82 N. W. 883
(1900) ; Cannady v. Lynch, 27 Minn. 435, 8 N.
W. 164 (1881); Sheehan v. Kearney (Miss.),
21 So. 41 (1896) ; State v. Bronstine, 147 Mo.
520, 49 S. W. 512 (1899) ; Territory v. Rob-
erts, 9 Mont 121, 22 Pac. 132 (1889) ; Clarke
v Irwin, 63 Xeb 539, 88 X W. 783 (1902);
State v. Lewis, 20 Xev. 333, 22 Pac. 241
(1889); Patten v. Cilley, 67 X. H. 520, 42
Atl. 47 (1894); Genz v. State, 58 X J. L.
482, 34 Atl. 816 (1896); Moffitt v. Smith,
153 X. C. 292. 69 S E 224 (1010) ; Xelson v.
Thompson, 16 X. D. 295, 112 X. W. 1058
(1907) ; Clark v. State, 12 Ohio 483. 40 Am.
Dee. 481 (1843); Queenan v Territory, 11
Okl 261, 71 Pac. 218 (1901); State v.
Fiester. 32 Or 254. 50 Pac. 561 (1807):
Com. v. Gearhardt. 205 Pa. 387. 54 Atl 1029
(1903); Price v Richmond, etc., R. Co.. 38
S. C' 199, 17 S. E 732 (1892); Halde v.
Schultz. 17 S. D 465. 97 X W 369 M903) ;
Jones v Galbraith (Tenn. Ch. App. 1900), 87
S. W. 726; Field v. Field (Tex. Civ. App.
Wis. 641, 96 N. W. 417 (1903) ; Connecticut
1905), 87 S. W. 726; In re Christensen,
17 Utah 412, 53 Pac. 1003 (1898); Foster
v. Dickerson, 64 Vt. 233, 24 Atl. 253 (1891) ;
Fishburne v. Ferguson, 84 Va. 87, 4 S.-E. 575
( 1887 ) ; State v. Craig, 52 Wash. 66, 100
Pac. 167 (1909) ; State v/Maier, 36 W. Va.
757, 15 S. E. 991 (1892) ; Lowe v. State, 118
Mut. L. Ins. Co. v. Lathrop, 111 U. S. 612,
4 S. Ct. 533, 28 L. ed. 536 (1883) ; 3 Chamb.,
Ev., 1908, n. 1. Persons who have had
business dealings with the testator and known
him socially and talked with him on various
subjects are competent to testify as to his
mental soundness. Re O'Connor, 271 111. 395,
111 X. E. 272, L. R. A. 1916 D 179 (1915).
Of lay persons on sanity. See note. Bender
Ed., 182 X. Y. 54. Opinion evidence on in-
sanity. See note. Bender, ed., 138 N. Y.
400, 410. Witness may characteri/e what he
saw and heard as rational or irrational.
See note, Bender, ed.. 17 X. Y. 340. Xbn-
expert as to whether testator appeared ra-
tional See note, Bedner. ed., 104 X. Y. 79.
22. Grant v. Thompson, 4 Conn. 203, 10 Am.
Dec. 119 (1822).
23. 3 Chamb., Ev., 1908, n. 3.
24. Braham v. State, 143 Ala. 28, 38 So. 919
(1905).
25. State v. Lyons, 113 La. 959, 37 So.
890 (1904) : 3 Chamb., Ev., 1908, n. 5.
26. Bell v. State. 140 Ala. 57, 37 So. 281
(1904).
27. People v. Jones, 115 X T . Y. Supp. 800
(1909).
28. 1870.
551
PSYCHOLOGICAL INFERENCES.
705
inference of insanity to " intimate acquaintances." 29 The presiding judge
determines what witnesses are within this class. 30 The statutory restriction
applies only to those witnesses who are asked to draw the precise inference
whether an observed person is or is not insane. 31 An observer qualified by
opportunities may state the negative fact that he saw nothing in the person's
conduct or demeanor to indicate insanity. 32 An ordinary observer as to in-
sanity is not a skilled witness and cannot testify as an expert. He will not be
allowed to answer hypothetical questions based upon facts proved by others. 33
The rule is the same in criminal casess* The rule in England 35 and Canada 3e
is the same as in the great majority of American states.
705. [Psychological Inferences] ; Qualification of Ability to State Details of
Phenomena. 37 The inference must be in connection with, subsequent to and
based upon, the facts observed by the witness. 38 An important qualification for
one who shall state a helpful inference as to insanity is an ability to give the
salient details observed by him. 39 This will usually be required by the pre-
siding judge. 40 The statement of certain facts, in this way, is not ground
for rejecting or for failing to give due weight, in any proper respect, to the
inference of insanity. 41 The application of the rule is, however, not invari-
able, 42 it being assumed, under certain circumstances, that one shown to have
29. People v. Clark, 151 Cal. 200, 90 Pac.
549 (1907).
30. People v. Hill, 116 Cal. 562. 48 Pac. 711
(1897).
31. People v. Barthleman, 120 Cal. 7, 52
Pac. 112 (1898).
32. Proctor v. Pointer, 127 Ga. 134, 56 S.
E. Ill (1906): Com. v. Fencez, 226 Pa. 114,
75 Atl. 19 (1910).
33. Spiers v. Hendershot, 142 Iowa 446, 120
X. W. 1058 (1909).
34. Glover v. State. 129 Ga. 717. 59 S. E.
816 (1907): State v. Rumble, 81 Kan. 16,
105 Pac. 1 (1909); State v. Banner. 149
X. C. 519, 63 S. E. 84 (1908) : Clark v. State.
12 Ohio 487 (1843) ; 3 Chamb.. Ev., 1908,
n. 21.
35. 3 Chamb., Ev.. 1909, nn 2, 3.
36. Re Estate John A. P. MoLellan. 28 Nova
Scotia Rep. 226 (1896): R. v. Waters. 10
Ont. App. 85 (1884). As to Reasons for ad-
mitting the Inference, see 3 Chamb.. Ev.,
1910 and notes thereto
37. 3 Chamberlayne. Evidence. 1911.
38. American Bible Soc. v. Price, 115 111.
623. .1 X E 126 (1886).
39. Yarbrouirh v. State. 105 Ala. 43. 16 So.
758 (1894) ; Grant v. Thompson, 4 Conn. 203,
10 Am. Dec. 119 (1822); 3 Chamb., Ev.,
1911, n. 2.
40. Ragland v. State, 125 Ala. 12, 27 So.
983 (1899); Shaeffer v. State, 61 Ark. 241,
32 S. W. 679 (1895) ; In re Keegan. 139 Cal.
123, 72 Pac. 828 (1903): Lodge v. Lodge,
2 Houst. (Del.) 418 (1862) : Raub v. Carpen-
ter, 17 App. Cas. (D. C.) 505 (1901); Arm-
strong v. State, 30 Fla. 170, 11 So. 618
(1892); State v. Hurst (Ida.). 39 Pac. 554
(1895); Blume v. State, 154 Ind. 343. 56
X. E. 771 (1900): Zirkle v. Leonard, 61
Kan. 636, 60 Pac. 318 (1900); State v.
Smith. 106 La. 33, 30 So. 248 (1901): Bra-
shears v. Orme. 93 Md. 442. 49 Atl. 620
( 1901 ) ; Dickinson v. Barber, 9 Mass. 225. 6
Am. Dec. 58 (1812); Woodcock v. Johnson,
36 Minn. 217. 30 X. W. 894 | 1886) : People
v. O'Donnell, 51 App Div. 115. 64 X. Y. Supp.
256 (19001: State v. Potts. 100 X. C. 457,
6 S. E. 657 (1888); Higgins v. Xethery, 30
Wash. 239. 70 Pac. 489 (1902): Crawford
v. Christian. 102 Wis. 51. 78 X. W. 406
(1899): 3 Chamh., Ev.. 1911, n. 3. See
also cases rued in note 2 to 704. supra.
41. State v. Rumble, 81 Kan. 16. 105 Pac.
1 (1909)
42. Caddell v. State, 129 Ala. 57, 30 So. 76
(1900).
706 INFERENCE FROM SENSATION. 552
had opportunities for observation properly utilized them. 43 Should the wit-
ness be able to give only so meagre a list of facts as fails, in the opinion of the
presiding judge, 44 to make his inference of rational assistance to the jury, 45 it
will be rejected ; 46 or, if received, be accorded but little weight. 47 Part of
the basis for the inference of the ordinary observer as to insanity may properly
be the statements of the person in question, viewed in their independently
relevant capacity. No administrative objection exists to their reception. 48
Hearsay statements of others or previous knowledge of the individual in ques-
tion are not to be regarded, in this connection, as a dependable foundation for
an inference as to insanity. 49
706. [Psychological Inferences] ; Qualification of Suitable Opportunities for
Observation. 50 - The proponent of an inference must, in this connection, show
to the court that the inferring witness has had sufficient opportunities for ob-
servation to make his inference helpful to the jury. 51 Should these be lacking,
the evidence is incompetent 52 and will, as a rule, be excluded. 53 In other
words, unless suitable opportunities for observation are shown, the evidence of
an inference as to insanity will be rejected. 54 What shall be deemed to con-
stitute a sufficient opportunity for observation has been thus stated : " It is
. . . agreed by the authorities that if the witness shows an acquaintance with
the accused, that he has had conversation with him, or that he has had busi-
ness dealings or social intercourse with him, he may, having stated the facts,
express an opinion/' 55 Necessarily, the matter is mainly one of adminis-
tration. 56
43. Xeely v. Shephard, 190 111. 637, 60 N. 317, 43 N. E. 853 (1896); 3 Chamb., Ev.,
E. 922 (1901) ; State v. Winter, 72 Iowa 627, 191 la, n. 2.
34 N. W 475 (1887) ; 3 Chamb., Ev., 1911, 49. Caswell v. State, 5 Ga. App. 483, 63
n. 7. S. E. 566 (1909); 3 Chamb.. Ev., 1911a,
44. Collins v. People, 194 111. 506, 62 N. E. n. 7.
90 (1902); O'Connor v Madison, 98 Mich. 50. 3 Chamberlayne, Evidence, 1912.
183, 57 X W. 105 (1893); Com v Buccieri, 51. C.rand Lodge I. O. M. A. v. Wieting,
153 l>a. 535, 26 Atl. 228 (1893); 3 Chamb., 168 111. 408, 48 X. E. 59 (1897); O'Connor
Ev.. 1911, n 8. v Madison, supra; Carpenter v. Hatch, 64
45. Burney v. Torrey, 100 Ala. 157, 14 So. X. H. 573, 15 Atl. 219 (1888) ; 3 Chamb., Ev.,
685 (1893) ; Alvord v Alvord, 109 Iowa 113, 1912. n. 3.
80 X. \V. 306 (1S99); Lamb v Lippincott, 52. Sutherland v. Hankins. 56 Ind. 343
115 Mich. Gil, 73 X W 887 (1898); 3 (1877); Buys v Buys, 99 Mich. 354, 58 X
Chamb., Ev., 1911, n. 9 W. 331 (1894) : 3 Chamh. Ev.. 1912, n. 4.
46. Uyder v. State, 100 Ga 528, 28 S. E. 53. Kimberly's Appeal, 68 Conn. 428. 36
246 (1897): Baltimore Safe-Deposit, etc., Co. Atl S47 (1896): Stumph v. Miller. 142 Tnd
v. Berry, 93 Md. 560. 49 Atl. 401 11901); 442. 41 X. E. 812 (1895); Moors v Sanford.
Com. v. Wireback, 190 Pa 138. 42 Atl. 542 2 Kan App 243, 41 Pac. 1064 (1895); 3
(1899): 3 Chamh.. Ev., 1911. n. 10 Chamb., Ev . 1912. n 5.
47. Kinne v Kinne. 9 Conn 102. 21 Am. 54. Donning v. Butcher. 9] Iowa 425, 59
Dec 732 (18311; Turner v. Cheesman. 15 X W 00 il94): 3 Chamb.. Ev.. 1912. n. 6.
X J Eq 243 i 1*57) : 3 Chamb.. Ev . 1911. 55. Goodwin v. State. 96 Ind. 550 (1884)
n 11. 56. Montana R. Co. v. Warren. 137 U. S.
48. People v. Shattuck. 109 Cal. 673. 42 348, 11 S. Ct. 96. 34 L. ed. 681 (1890).
Pac. 315 (1895) : People v. Nino, 149 N. Y.
553 PSYCHOLOGICAL INFERENCES. 707-709
707. [Psychological Inferences] ; Qualification of Ability to Coordinate Phe-
nomena. 57 Of primary importance, among qualifications for the giving of a
reasonable inference with regard to insanity, is a power of mental coordina-
nation. In this connection, not only are the habits and powers of observation
of the witness to be considered, but also the subjective conditions under which
his sense-perceptions are made/ 8 Probably it is this requirement that the
witness should be able to coordinate his sense-impressions into a reasonable
mental inference which is indicated by the statement of certain courts that
observers must be " people of good common sense." 59
708. [Psychological Inferences] ; Judicial Estimates as to Probative Force. 60
The precise reason why the ordinary observer is allowed to state his infer-
ence is because he cannot fully detail the phenomena upon which he bases it. 61
How, then, can the true state of the case well be laid, with any greater preci-
sion, before an alienist testifying as an expert ? 62 This is practically the view
adopted in England 3 and in the great majority of American states. 64 On the
other hand, it has been said that the inference of ordinary observers as to the
presence of insanity is of " little or no weight." 65 The courts of Maine, 66
Massachusetts, 67 and Xew York 08 adopt a view that such evidence is to be re-
jected in favor of the reasoning of the skilled witness.
709. [Psychological Inferences] ; Skilled Observer. 69 Under circumstances
which would warrant the court in admitting the inference of an ordinary ob-
server, that of a skilled witness, e.g.. a physician, 7 " may undoubtedly be re-
ceived. He may state whether one accused of crime is legally capable of
committing it, i.e., is aware of the nature and consequences of his act. 71 In
such instances, the inference should, as a rule, be a necessary one. 72 As seen
57. 3 Chamberlayne, Evidence, 1913- 65. Eloi v. Eloi, 36 La. Ann. 563 (1884).
1915. 66. Supra, 702; 3 Chamb., Ev.. 1905.
58. Emery v. Hoyt, 46 111. 258 (1867) ; 3 67. Supra, 702: 3 Chamb., Ev., 1906.
Chamb., Ev., 1913. 68. Supra, 703; 3 Chamb.. Ev., 1907.
59. New York, etc., R. Co. v. Luebeck, 157 Function of the Judge. See 3 Chamb., EV.,
111. 595, 41 N. E. 897 (1895). 1917 and notes. Action of Appellate
60. 3 Chamberlayne, Evidence, 1916- Courts. See 3 Chamb.. Ev., 1918 and notes.
1920. Comparative value of qualifications de- Province of the Jury. See 3 Chamb., Ev.,
manded by judicial administration. See 3 1910 and notes. Weight of the Evidence.
Chamb., Ev., 1014. Direct and Indirect In- See 3 Chamb., Ev., 1920, and notes,
ferences. See 3 Chamb., Ev., 1015. 69. 3 Chamberlayne, Evidence, 1921,
61. Fayette v. Chesterville. 77 Me. 28, 52 1922.
Am. Kep. 741 (1885). 70. Com. v. Cressinorer, 193 Pa. 326. 44
62. Sehlencker v. State, 9 Xeb. 241, 1 X. Atl. 433 (1899) ; 3 Chamb., Ev., 1921, n. 1.
W. 857 (1879) : Clark v. State, 12 Ohio 483, 71. State v. Roselair. 57 Or. 8, 109 Pac. 865
40 Am. Dec. 481 (1843); 3 Giamb.. Ev., (1910).
1916. 72. Taylor v. McClintock, 87 Ark. 243, 112
63. Supra. 704; 3 Chamb., Ev., 1009. S. W. 405 (1908).
64. Supra, 704; 3 Chamb., Ev., 1908.
710 INFERENCE FROM SENSATION. 554
in an r place, 73 the ordinary observer might well be forbidden to state his
deduction from the same appearances. 74
Inferences of Sanity. Sanity being the normal mental state, and its exist-
ence, therefore, being assumed,' 5 while an ordinary observer may not give his
inference as to insanity without stating the constituent phenomena upon which
it is based, 76 he may declare his opinion in favor of sanity without doing so. 77
Be may be permitted to testify to an inference that a given person is sane,'**
but he may not be permitted to testify as an expert, 79 In criminal cases, the
inference of an ordinary observer as to mental condition has been rejected. 80
It seems to be settled that general reputation in a community is not admis-
sible to prove the fact of the sanity 81 of a given individual. 82
710. [Psychological Inferences] ; Subscribing Witness. s;; lu the English
practice, the subscribing witness is customarily permitted to state his infer-
ence as to the sanity of the person executing a will or deed which the witness
has been called upon to authenticate. 84 In the United States, the English
view on this subject equally prevails and the inference of the subscribing wit-
ness as to the sanity of the executing party is, in general, received, 85 even in
jurisdictions which exclude the reasoning of other ordinary observers. 80 It
will be received although formed subsequent to the time of the transaction in
connection with which he has acted. 87 Questions calling for the use of a large
proportion of inference on the part of the witness may be rejected. 88
An Anomalous Position. Grounds assigned for so unusual an anomaly
have been various. 89 In Xew York, which concurs with Massachusetts in re-
jecting the inferences of ordinary observers as to insanity, 90 the exceptional
adrnissibility conferred upon the estimates of attesting witnesses is placed upon
the ground of administrative necessity. 91 The dissentient American states
73. Supra, 701; 3 Chamb., Ev., 1899. 84. Tatham v. Wright, 11 Eng. Ch. 1, 39
74. Town of Londonderry v. Fryor, 84 Vt. Eng. Reprint 295 (1831).
294, 79 All. 46 (1911); 3 Chamb., Ev., 85. Scott v. McKee, 105 Ga. 256, 31 S. E.
1921, n. 5. 183 (1898); Hertrich v. Hertrich, 114 Iowa
75. Supra, 404; 2 Chamb., Ev., 974. 643, 87 N. W 689 (1901); In re Du Bois,
76. Supra, 705; 3 Chamb., Ev., 1911. 164 Mich. 8, 128 N. W. 1092 (1910); 3
77. State v. Soper, 148 Mo. 217, 235, 49 Chamb.. Ev., 1925, n. 1.
S. W. 1007 (1899) , 3 Chamb, Ev., 1922, n. 86. Robinson v. Adams, 62 Me. 369, 16 Am.
4. Rep. 473 (1874) : May v. Bradlee, 127 Mass.
78. Mollering v. Kinneburg, 78 Neb. 758, 414 (1879) ; Hewlett v. Wood. 55 N. T. 634
111 N. W. 788 (1907) (1873).
79. Myatt v Myatt, 149 N. C. 137, 62 S. E. 87. Runyan v Price, 15 Ohio St. 1, 86 Am.
887 (1908). Dec. 459 (1864).
80. Braham v. State, 143 Ala. 28, 38 So. 88. In re Du Bois. supra.
919 (1905). 89. See Xeedham v. Tde. 5 Pick. (Mass.)
81. People v. Pico, 62 Cal. 53 (1882); 510 (1827); Williams v. Spencer, 150 Mass.
Townsend v Pepperell, 99 Mass. 40 (1868): 346, 23 N E. 105, 15 Am. St. Rep. 206, 5
State v. Coley, 114 X. C. 879, 19 S. E. 705 L. R. A. 790 (1890).
<1R94) ; 3 Chamb., Ev., 1922, n. 14 90. Svpra, 703; 3 Chamb., Ev., 1907.
82. Foster v rooks. 6 Ga. 290 M849). 91. Clapp v. Fullerton, 34 N. Y. 190, 90
83. 3 Chamberlayne, Evidence, 1923- Am. Dec. 681 (1866).
1927.
555 PSYCHOLOGICAL INFERENCES. 711
have, however, imposed certain limitations upon the scope of the anomaly. In
case of a will, only as to insanity as it existed at the time of executing it is the
subscribing witness permitted to speak. 92 The result of his observations since
the execution of the will 93 or other instrument, are not deemed to be relevant.
Marked Administrative Indulgence. A subscribing witness alone is not
required to give a preliminary statement of observed phenomena constituting
the basis of his inference. 94 But the facts observed may be inquired into, 95
and the probative weight of the inference may be reinforced by stating them. 96
Beyond the incidents necessarily attendant upon the fact of attestation, no
special opportunities for observation need be shown to have been enjoyed by the
witness. 97 He may even invade, to an extent permitted no other witness, the
province of the jury 98 by stating his opinion on the precise point as to which
they are to pass, e.g., whether a testator executing a will was possessed at the
time of testamentary capacity " or one who signed a deed was sufficiently
sane to transact business. 1
Probative Force. To the inference of a subscribing witness as to the in-
sanity of the maker of the instrument the law attaches no special or predeter-
mined probative force." Much depends upon the personal credibility of the
attesting witness. 3 In no case, is it regarded as conclusive. 4 He may even be
impeached, as by proof that he has made inconsistent statements. 5
711. [Psychological Inferences]; Objective Mental States. Inference of
ordinary observers, as to mental states, is governed by the same general rules
which have been seen to affect inference as to mental condition. An observer
of competent knowledge, after the usual preliminary detail of constituting
facts, 7 may properly be permitted to declare an inference as to what mental
feeling or state is shown by the manifestations which he has observed. 8
Wherever a given mental state is a relevant fact, 9 a properly qualified ob-
server may, under proper administrative conditions, state his inference as to
its existence. The mental state of a witness may be given by the witness
92. Robinson v. Adams, supra; Williams 2. Burney v. Torrey, 100 Ala. 157, 14 So.
v. Spencer, supra; Clapp v. Fullerton, supra. 685 (1893) ; 3 Chamb., Ev., 1923.
93. Williams v. Spencer, supra. 3. Farnsworth v. Xoffsinger, 46 W. Va.
94. Scott v. McKee, supm ; Hertrich v. Hert- 410, 33 S. E. 246 (1899).
rich, supra; Jones v. Collins, 94 Md 403, 51 4. Cilley v. Cilley, supra.
Atl 398 (1902) : 3 Chamb., Ev. 1927, n. 1. 5. In re Snelling, 136 N Y. 515. 32 N. E.
95. Titlow v. Titlow, 54 Pa. 216, 93 Am. 1006 (1S93K
Dec. 691 (1867). 6. 3 Chamberlayne, Evidence, 1928-
96 Cilley v. Cilley, 34 Me. 162 (1852). 1937.
97. Robinson v. Adams, supra. 7. Supra, 678; 3 Chamb., Ev.. 1813.
98. A contrary viev, declining to permit 8. Jones v State (Tex. Cr. App. 1905^,
the witness to apply the standard of legal 85 S. W 5; State v. George, 58 Wash. 681.
responsibility, has been adopted. Hall v. 109 Pac. 114 (1910)
Perry. 87 Me. 569, 33 Atl. 160 (1895) ; Dean 9. Thompkins v Augusta, etc, R. Co., 21
v. Fuller, 40 Pa. 474 (1861). S C. 420 (1884); Over v. Missouri, etc., R.
99. Jones v. Collins, supra. Co. (Tex. Civ. App. 1903), 73 S. W. 535;
1. Brand v. Brand, 39 How. Pr. (N. Y.) 193 3 Chamb., Ev., 1928. n. 3.
(1870).
711 INFERENCE FROM SENSATION. 556
himself. He may say that his mental attitude is one of belief, disbelief or of
indifference. 11 ' Such testimony, however, will be rejected if, on account of
its impossibility of direct contradiction, likely to mislead the jury or be ob-
jectionable for some other reason. 11
Animals. An ordinary observer may state an inference from the appear-
ances which he has observed as to the mental state of an animal, as that the
animal looked " fierce " ; 12 that a horse appeared u sulky rather than fright-
ened "; 13 or that the animal was actually frightened. 14
Intuitive and Reasoned Inferences. Where the inference as to mental state
is an intuitive one, it is, in main, simply a statement of fact and is accord-
ingly accepted as a matter of course. 15 Thus, the witness may state that a per-
son observed by him " expected " something to happen, e.g., to meet a person at a
certain place. 16 Reasoned inferences 17 which are admissible may relate to
the existence of mental states of any degree of permanence or complexity.
For example, a witness may properly state his belief or disbelief in the exist-
ence of a particular fact, declare his intention 18 or lack of it, although it is
clear that his inference may embody a large element of reasoning. He may
state that a given individual appeared to take no interest in what was going
on. 19 Where, however, the inference is rather an intellectual concept reached
by a line of reasoning, more or less intricate, than a shorthand method of stat-
ing the results of sense-perception impossible of complete statement, it will be
rejected. 2 *'
Ad minist. rat-ice Requirements. To justify the reception of the inference
of an observer, the proponent must show an adequate necessity. 21 Chief
among the elements of subjective relevancy, upon which judicial administra-
tion insists as a condition of admissibility, is adequate knowledge. This is
shown, as a matter of practice, by the preliminary detail of constituting facts
which the witness is called upon to give as part of the basis of his inference. 22
10. Com. v. Piper. 120 Mass. 185 (1876); Hardy v. Merrill, 56 N. H. 227. 22 Am.
3 Chamb., Ev., 1028, n 4. l!ep. 441 (1875) -. 3 Chamb., Ev , 1020, n. 1.
11. Hoehn v. Chicago, etc., R Co., 152 111. 16. State v. Thomas. 41 La. Ann. 1088,
223, 38 X. E. 541) (1894) ; Douglass v Leon- So. 803 (1880).
ard, 17 X. Y. Supp. 501 (1802), rev'g 14 17. Supra. fiOl; 3 Chamb., Ev., 1843.
X. Y. Supp 274 (1801); 3 Chamb., Ev., 18. Spencer v Peterson, 41 Or. 257, 60 Pac.
1928, n. 5. 510, 1108 (1002).
12. Mattison v. State, 55 Ala. 224 (1876) 19. Com v. Piper, 120 Mass. 185 (1876).
(dog). 20. Manahan v. Halloran, 66 Minn. 483,
13. Whittier v Eranklin, 46 X. H 23, 88 60 X W. 610 (1806): Diefendorf v Thomas,
Am. Dec. 185 (1865). 37 App Div. 40, 55 X Y. Supp. 600 (1800) ;
14. Ward v. Meredith. 122 111. App 150 3 Chamb., Ev., 1030, n 4.
(1005), judg. aff'd 220 111. 66. 77 X. E. 21. 3 Chamb , Ev.. 1031.
118 H906) : 3 Chamb.. Ev. 1928 a . 22. Sydleman v Beckwith, 43 Conn.
15. Holland v Zollnpr, 102 Cal. 633, 36 Pac. (1875): Marshall v. Hanby, 115 Iowa 318,
030. 37 Pac. 231 (1804) : Com. v. Sturtivant, 88 N. W. 801 (1902) ; 3 Chamb., Ev., 1932,
117 Mass 122, 19 Am. Rep 401 (1893) : State n. 1.
v. Buchler, 103 Mo. 203, 15 S. W. 331 (1890) ;
557 PSYCHOLOGICAL INFERENCES. 711
Self -regarding States. The psychological fact to which the inference of
the witness relates may be self-regarding, i.e., the effect produced upon the
mind of a beholder may be that of a feeling subjectively limited, self-centered.
Such an emotion, apparently, is mental anguish, 23 expectation, 24 grief, 2 " melan-
choly, 20 and other subjective mental states^ 7 It may properly be said of a
person observed that he appeared to be nervous or to be laboring under excite-
ment." Fear is also self-regarding. 29 Knowledge, 30 or understanding 31
should, it would seem, be looked upon in the same light. Administrative rea-
sons may, however, cause its rejection. 32 Into this category falls the operation
of undue 33 or other influence. One's " understanding " may be. in certain
cases, a relevant fact. 34 A given state of mind, manifesting outwardly, may
properly be described as " natural." 35
Psychological States Regarding Others. The mental state as to the exist-
ence of which the witness declares his inference may be a forth-putting emo-
tion, one having reference to the good or ill of persons other than the one pos-
sessing or possessed by it. The feeling may be favorable or unfavorable to
some other person. Malevolent feelings may be typified by -anger. 36 The
appearance of a given individual as that of being " cross," 37 " mad," 3S " fero-
cious," 39 or the like, may be stated by the observer. Or, he may be declared to
be acting apparently under the influence of affection. 40
Disposition. Under appropriate conditions, the inference of an observer
will be received as to the mental state of character or disposition. 41 Thus, one
23. For example, that caused by failure to 31. Piano Mfg. Co. v. Kautenberger. 121
render some last office of love to a near rela Iowa 213, 96 N. W. 743 (1903).
the caused by non-delivery of a telegram. 32. Louisville, etc., R. Co. v. Goben, 15
Sherrill v. Western Union Tel. Co.. 117 X. C. Ind. App. 123, 42 N. E. 1116. 43 N. E. 890
352. 23 S. E. 277 (1895): 3 Chamb., Ev.. (1895): Major v. Spies, 66 Barb. (N. Y.)
1033. n. 1. 576 (1873): 3 Chamb., Ev., 1933, n. 10.
24. State v. Thomas. supra. 33. Marshall v. Hanby, supra : Pattee v.
25. Hughes v. Nolte. 7 Ind. App. 526, 34 Whitcomb, 72 N. H. 249,. 56 All. 459 (1903).
X. E. 745 1 1893) . 34. Southern Ry. v. Howell, 79 S. C. 281, 60
26. State v. McKnight, 119 Iowa 79, 93 X. S. E. 677 (1908).
W. 63 (1903); Culver v. Dwight. 6 Gray 35. State v. Wright, 112 Iowa 436. 84 X. W.
(Mass.) 444 i 1856) ; 3 Chamb., Ev., 1933, n. 541 (1900) .
4. 4. 36. State v. \Yright, supra; State v. Buch-
27. Jackson v. State, 44 Tex. Cr. 259. 70 ler. supra; State v. Tighe,-27 Mont. 327, 71
5. W. 760 (1902); Fritz v. Western Union Pac. 3 (1903); 3 Chamb., Ev.. 1934, n. 1.
Tel. Co., 25 Utah 263, 71 Pac. 209 (1903) -. 37. State v. Crafton, 89 Iowa 109, 56 X. W.
3 Chamb., Ev., 1933, n. 5. 257 (1893).
28. Rolwrts v. State, 123 Ga. 146. 51 S. E. 38. State v. Utley, 132 X. C. 1022, 43 S. E.
374 (1905): Dimick v. Downs. 82 111. 570 820 (1903).
(1876) : 3 Chamb., Ev., 1933, n. 6. 39. State v. Buchler. supra.
29. Thornton v. State. 113 Ala. 43. 21 So. 40. Barnes v. Tibbits, 164 Mich. 217. 129
356 (1896): State v. Ramsey. 82 Mo. 133 X. W. 42, 17 Detroit Leg. X. 1062 (1910):
(1884): State v. Byrd. 41 Mont. 585. Ill McKee v. Xelson, 4 Cow. (X. Y. ) 355. 15
Pac. 407 (1910) : 3 Chamb., Ev., 1933, n. 7. Am. Dec. 384 (1825) ; 3 Chamb.. Ev.. 1935.
30. Jeffersonville v. McHenry, 22 Ind. App. n. 1.
10, 53 X. E. 183 (1898). 41. Bush v. State, 109 Ga. 120. 34 S. E. 298
712 INFERENCE FROM SENSATION. 558
who has had suitable opportunities for observation may be allowed to state that
a certain person appeared to be of a happy and contented disposition, 42 and
in what way his disposition compared with that of another person. 43 While
an inference as to a temporary mental state has been rejected, 44 a change in
customary mental attitude may be stated by a qualified observer. 45 The dis-
position of an animal may be stated, under proper circumstances, in the form
of an inference by a suitably qualified observer, 40 as that a given animal was
kind, safe, or gentle, 47 or sulky. 48
712. [Psychological Inferences] ; Inference Rejected. 49 An inference or
other reasoning by a witness as to the existence of a mental state which is not
justified by some adequate administrative necessity is properly rejected; as
where the precise point to be passed upon by the jury, part of the issue raised
in the case, is as to the existence of the psychological fact itself, 50 or where an
undue proportion of reasoning is involved in the inference. 51 A very large
proportion of reasoning is present in a statement where the witness is making
a direct inference as to the mental state of a third person. Thus, a witness
may undertake to state that A knows a given fact not because A has been ob-
served by him to show signs of knowing it but because the fact itself having
been stated in A's presence, he must know it. 52 Such direct inference, in the
absence of manifestation, is to be rejected. 53 Even an expert witness is not
competent to testify to the existence of a mental state of another, resting merely
in the opinion of the expert without any basis for the inference as to it. 54
Facts May Be Placed before the Jury. Where such phenomena as are ac-
tually present are few and capable of being laid before the jury with no
marked impairment of probative force, no administrative reason is shown for
receiving the summary of the witness in the form of an inference. The jury
(1899): Matthewson v. Matthewson, 81 Vt. v. Minturn, 70 X. J. L. 627, 57 Atl. 269
173, 69 Atl. 646 (1908); 3 Chamb., Ev., (1909); 3 Chamb., Ev., 1938, 1939, n. 2,
1936, n. 1. 1942.
42. Morrison v. State, 40 Tex. Cr. 473, 51 51. Manahan v. Halloran, 66 Minn. 483, 69
S. W. 358 ( 1899) ; 3 Chamb., Ev., 1936, n. 2. N. W. 619 (1896) ; Diefendorf v. Thomas, 37
43. Brownell v. People, 38 Mich. 732 App. Div. 49, 55 N. Y. Supp. 699 (1899); 3
(1878). Chamb., Ev., 1939, n. 3. Inducing pur-
44. McAdory v. State, 59 Ala. 92 (1877). chase. Duhme Jewelry Co. v. Browning, 72
45. Johnson v. State, 17 Ala. 618 (1850). S. C. 424, 52 S. E. 1117 (1905).
46. Pioneer Fireproof Constr. Co v. Sunder- 52. Braham v. State, 143 Ala. 28, 38 So.
land, 188 111. 341, 58 N. E 928 (1900) ; John- 919 (1905) ; Handley v. Missouri Pac. R. Co.,
son v. Mack Mfg. Co., 65 W. Va. 544, 64 S. E. 61 Kan. 237, 59 Pac. 271 (1899) ; 3 Chamb.,
841 (1909) ; 3 Chamb., Ev., 1937, n. 1. Ev., 1939, n. 4.
47. Sydleman v. Beckwitih, 43 Conn. 9 53. Sneed v. Marysville Gas & Electric Co.,
(1875). 149 Cal. 704, 87 Pac. 376 (1906); Bush &
48. Whittier v. Franklin, 46 N. H. 23 Hathaway v. W. A. McCarty, 127 Ga. 30S, 56
(1865). S. E. 430 (1907) : 3 Chamb., Ev., 1939, n.
49. 3 Chamberlayne. Evidence, 1938- 5.
1946. 54. Consol. Gas, etc., Co. v. State, 109 Md.
50. Piano Mfg. Co. v. Kautenberger, 121 186, 72 Atl. 651 (1909).
Iowa 213, 96 N. W. 743 (1903) ; Farrington
559 PSYCHOLOGICAL INFERENCES.
will be regarded as being as well qualified to draw an inference as the witness. 55
Lack of Objective Relevancy. The inference of an observer as to the exist-
ence of a particular mental state will not be received in evidence unless the
psychological fact itself is objectively relevant, in some respect, to the proposi-
tion in issue. Simply, it is not evidence."''
Subjective Relevancy. Should the observing witness fail to show to the
court, in connection with his preliminary detail of constituting phenomena, 57
that he has had such opportunities for observation, and is possessed of sufficient
mental powers for utilizing them to enable him to draw an inference reason-
ably helpful to the jury, his inference will be rejected. 5 * The inference of an
observer as to the intent or intention with which a particular act was done is
usually a complex one, involving a large amount of the element of reasoning,
thus more nearly constituting a conclusion, 51 * and it is, therefore, rejected. 60
In many cases where the substantive law itself attaches consequences to given
acts or failures to act, regardless of the intent with which they were done or
omitted, the existence of the psychological fact is irrelevant 01 and, conse-
quently, to be rejected. 02
Failure to stare an adequate number of constituting phenomena and the
usually accompanying presence of a large portion of reasoning, for receiving
which no satisfactory administrative necessity is shown, unite, in many cases,
to lead the court to reject the inference of ordinary observers as to the existence
of complicated mental states. Of this nature is fraud, 63 good faith, 1 ' 4 motive, 65
purpose, 66 or any similar mental state fairly like these. 67 The reasons as-
signed by the observed person for his conduct " 8 or the facts upon which reli-
ance was placed (l! ' may be rejected for similar reasons. Statements of be-
55. 3 Chamb.. Ev., 1940. 62. Supra, 29; 3 Chamb., Ev.. 1941.
56. Louisville, etc., R. Co. v. Goben. supra: 63. Maier v. Board of Public Works, 151
Solomon v. Amerk-an Mercantile Exch.. 93 Ind. 197, 51 X. E. 233 (1898); 3 Chamb..
Me. 436, 45 Atl. 510, 74 Am. St. Rep. 366 Ev., 1945, n. 2.
(1900): Jennings v. Supreme Council, etc.. 64. Durrence v. Northern Xat. Bank. 117
Assoc., 81 App. Div. 76. 81 X. Y. Supp. 90 Ga. 385, 43 S. E. 726 (1903).
(1903) -. 3 Chamb., Ev., 1941. n. 2. 65. Tail v. Hall. 71 Cal. 149. 12 Pac. 391
57. Suprn. 711: 3 Chamb., Ev., 1932. (1886) ; Dwight v. Badgley. 60 Hun 144, 14
58. Rush v. State. 109 Ga. 120, 34 S. E. N. Y. Supp. 498 (1891): 3 Chamb., Ev.,
298 (1899) ; State v. Stockhammer. 34 Wash. 1945. n. 4.
262, 75 Pac. 810 (1904): 3 Chamb.. Ev.. 66. Western Xat. Bank v. Flannagan, 35
1943. X. Y. Supp. 84S. 14 Misc. 317 H895) : Heath
59. Supra, 676; 3 Chamb. Ev., 1803: v. Slocum, 115 Pa. 549, 9 Atl. 259 (1887).
Infra, 792: 3 Chamb., Ev., 2291. 67. Fleckinger v. Taffee. 149 Mich. 678, 113
60. CJreve v. Echo Oil Co., 8 Cal. App. 275, X. W. 311 (1907* : Bogart v. City of Xew
96 Pac. 904 (1908) ; Cihak v. Klekr, 117 111. York, 200 X. Y. 379. 93 X. E. 937 (1911) ;
643, 7 X. E. Ill (1886); 3 Chamb.. Ev.. State v. Stockhammer. supra : 3 Chamb.. Ev.,
1944. n. 2. But see Starr v. Stevenson. 91 194o. n. 6.
Iowa 684, 60 X". W. 217 (1894) : Farrington 68. Goodale v. Worcester Agricultural Soc.,
v. Minturn, supra. 102 Mass. 401 (1869): Jennings v. Supreme
61. Sayre v. Woodyard, 66 W. Va. 288, 66 Council, etc., Assoc., supra : 3 Chamb., Ev..
S. E. 320 (1909). See also supra; 3 1945, n. 7:
Chamb., Ev., 1928. 69. Wabash R. Co. v. Smillie, 97 111. App.
712 INFERENCE FROM SENSATION. 500
lief, 70 disbelief, or as to the operation of undue 71 or other influence may stand
in the same position. 72
Psychological States not Subject to Direct Observation. Where the element
of inference predominates over that of observation to a degree which no ad-
ministrative necessity appears to justify, as an inference as to the existence of
a quality more nearly moral than mental, e.g., the extent of the given person's
will power, 73 it may properly be rejected. The reasoning of the witness is to
aid that of the jury, not to supplant it.
7 (1901); Pope v. McGill, 58 Hun 294, 12 72. International & G. N. R. Co. v. White,
N. Y. Supp. 306 (1890). 103 Tex. 567, 131 S. W. 811 (1910), modify-
70. Happy v. Morton, 33 111. 398 (1864); ing judgment (Civ. App. 1909), 120 S. W.
Faribault v. Sater, 13 Minn. 223 (1868). 958.
71. Compher v. Browning, 216 111. 429, 76 73. Goodwin v. State, 96 Ind. 550 (1884) ; 3
N. E. 678 (1906); Manahan v. Halloran, Chamb., Ev., 1946.
supra,; 3 Chamb., Ev., 1945, n. 10.
CHAPTER XXVIII.
INFERENCE FROM SENSATION; SKILLED OBSERVER.
General position of skilled witness, 713.
Ordinary and skilled observers; differentiation by subject-matter; what topics
are technical, 714.
necessity and relevancy, 715.
Architects and builders, 716.
Business affairs, 717.
Technical matters, 718.
Mechanic arts, 719.
Finger prints and tracks, 720.
Title to real estate, 721.
Medical inferences, 722.
qualifications of witnesses, 723.
detail of constituting facts, 724.
who is qualified, 725.
probative weight, 726.
results of autopsy, 727.
Military affairs, 728.
Mining matters, 729.
Photographic art, 730.
Railroad matters; qualifications, 731.
Street railways, 732.
Telegraphing, 733.
713. General Position of skilled Witness. 1 In passing from consideration
of the use of inference which administration permits an ordinary observer as
the result of his regarding external nature or his own sensations to some exam-
ination of the reasoning, based upon sensation, of skilled witnesses, a distinct
step is taken. The inquiry is transferred from reasoning based upon common
knowledge to that grounded upon special. A skilled witness is one who is ex-
perienced, e.cpetlus, in some particular profession, trade or calling not familiar
to men in general. lie has, as it were, received training, physical or mental,
in a school which they have not entered. This mental or physical develop-
ment may be scientific : or it may be most severely practical. For administra-
tive purposes, it is sufficient if the training is not such as men in general have
had or the jury could acquire, to a satisfactory degree, within the time limits
1. 3 Chamberlayne, Evidence, 1947-1951.
561
71tt, 715 INFERENCE FROM SENSATION. 562
which can be conceded to the trial of an action at law. Skilled witnesses, like
any other, state, either as facts or. by way of inference, what they claim to
know. Experts, on the other hand, testify as to their reasoning upon facts
known to others. These experts may testify as skilled witnesses, and, vice
versa, skilled observers may testify as experts. The circumstance, however,
has no effect to impair the validity of the distinction between the two.
In connection with divers occupations, mercantile, professional, trading, and
the like, or relations growing out of them, an ever increasing volume of business
is presented to the court. Here is the neld of the " skilled witness,'' so called.
To the administration of justice, this witness contributes three things, to which
it will be necessary to give some examination in the same order. (1 ) He may
contribute facts known to those engaged in his trade or calling. ('2) He may
submit inferences and conclusions, acts of reasoning based, more or less com-
pletely, upon observation. (.'}) He may, testifying as an expert, otter an act of
pure reasoning, his judgment, rested upon the assumed truth of certain facts
stated to him in the form of a hypothetical question. These several tenders,
judicial administration regards, and therefore treats, in different wavs.
714. [Ordinary and Skilled Observers; Differentiation by Subject-matter];
What Topics are Technical. 2 Special training brings with it special powers of
observation. To know for what one should look is a powerful aid to finding the
crucial point in a complicated set of phenomena. The desire to find it is that
which tends to deflect attention. The skilled observer is, therefore, able, in a
technical matter, to give unique assistance in the search for truth. He sees
the bearing of facts which come under his notice in a way impossible to the
ordinary witness. He is very apt, partly by reason of this fact, to observe
really significant phenomena which might escape the attention of others.
These technical matters, as has been said, are those as to which the witness has
enjoyed a special training and experience not shared by men in general. 3
715. [Ordinary and Skilled Observers]; Necessity and Relevancy. 4 In re-
ceiving the inference of the skilled observer, .administration is admitting sec-
ondary evidence. Upon the reception of this, it at all times imposes restric-
tions. In this connection, as usual, the proponent must show that, it is neces-
sary for the proof of his case to receive secondary evidence and that the evi-
dence actually tendered is relevant for the purpose.
The necessity may arise because he is testifying about complicated facts
which the jury cannot properly co-ordinate. The relevancy of the evidence
resolves itself into a question of the qualifications of the witness. The experi-
ence of the witness may be short and it need not be 'technical but it may be
practical.
2. 3 Chamberlayne, Evidence, 1952. 4. 3 Ohamberlayne, Evidence. 1953-
3. Herhigr v. Xew York, etc, R. Co, 60 1957.
Hun IX. Y.) 177 note (1893).
563
ABCIIITECTS, ETC.
716-718
716. Architects and Builders. 5 Building trades furnish numerous instances
of the reasoning of the trained observer. A suitably qualified member of a
building trade may testify as to his inferences from what he has observed.
.Xo other witness is entitled to speak on a trade matter."
717. Business Affairs. s One connected with a particular business may
state his inferences from facts observed, by him as to technical matters not
familiarly known to those outside that special calling and which the jury cannot
coordinate into a reasonable act of judgment by the aid of any experience of
their own. 9 In other respects, the presence or absence l " of business difficulties
may be announced by a properly qualified witness. He may declare his con-
clusion as to whether a gi\en line of industry ll could be successful;} 7 carried
on under prescribed conditions or books kept in a particular way. 12
718. Technical Matters. 13 A skilled observer may testify as to the results
of chemical analysis 14 or as to various problems in engineering whether civil 15
or electrical 16 hydraulic 1 ' or surveying 18 or as to farming matters whether
5. 3 Chamberlayne, Evidence,
1958-
6. Bowen v. Sierra Lumber Co. (Cal. App
1906), 84 Pac. 1010 (life of red fir timber) ,
Line v. Mason, 67 Mo. App. 279 (1896.I;
Behsman v. Waldo, 38 Misc. (X. Y.) 820.
78 X. Y. Suppl 1108 (1902) (architects and
mechanical engineers). An experienced
builder who has seen a house just aiter its
abandonment and who has looked over the
plans and specifications may state how large a
proportion of the building was completed at
the time it was abandoned. C. Scheerer & Co.
v. Deming (Cal. 1908), 97 Pac. 155.
7. Alexander v Mt, Sterling, 71 111. 366
(1874) (sidewalk) : Galveston, etc., R. Co. v.
Daniels, 1 Tex. Civ. App. 695, 20 S. W. 955
(1892) (sufficiency of a bridge); Carroll v
Welch, 26 Tex. 147 (1861). Where a photo-
graph is in evidence showing the condition
of a bridge opinion evidence of railroad men
is not admissible that it was not a safe place
to work as the jury can judge this for them-
selves. Duncan v. Atchison. Topeka & Santa
Fe R. Co., 86 Kan. 112. 119 Pac. 356, 51
L. R. A. (N. S.) 565 (1911).
8. 3 Chamberlayne. Evidence, 1963.
9. Barrie v. Quimby, 206 Mass. 259. 92 X
E 451 (1910): Daniels v Fowler. 123 X. C.
35, 31 S. E. 598 (1898); Cochran v. U. S..
157 U. S. 286, 15 S. Ct 62S, 39 L. ed. 704
(1895). The proper method of stacking
flour in 50-pound sacks is a subject of expert
testimony. Commerce Milling & Grain Co. v.
Gowan (Tex. Civ. App. 1907), 104 S W. 916.
10. Crusoe v. Clark, 127 Cal. 341, 59 Pac.
700 (1899) (no problem in bookkeeping).
11. Belding v. Archer, 131 X. C. 287, 42 S.
E. 800 (1902) (lumbering).
12. Fry v. Provident Sav. L. Assur. Soc.
(Tenn Ch App. 1896), 38 S W. 116.
13. 3 Chamberlayne, Evidence, 1964-
1987.
14. Xussbaumer v. State, 54 Fla. 87, 44 So.
712 (1907) (intoxicating quality of wine);
fc. S. Health & Accident Ins. Co. v. Jolly (Ky.
1909), 118 S. W. 28 (pus).
See ateo Potvin v. West Bay City Ship-
building Co , 156 Mich. 201, 120 N. W. 613
(1909).
15. Gault v. Concord R. Co., 63 N. H. 356
(1885) (whether a bridge obstructs a
stream) .
16. H. J. Reedy Co. v. Cameron (Mich.
1910), 129 X. W. 27, 17 Detroit Leg. N.
1025 (proper operation of electric motor).
17. H. J. Reedy Co. v. Cameron (Mich.
1910), 129 X. W. 27, 17 Detroit Leg. X. 1025.
Beery v. Driver (hid. 1906), 76 X. E 967.
A nonexpert cannot testify that it would be
impossible to drain all the land in contro-
versy towards a certain river. Hetland v.
Bijstead (Iowa 1908). 118 X. W. 422.
Whether a stream is " floatable," is a proper
subject for the inference of a skilled observer.
Hot Springs Lumber & Mfg Co. v. Rever-
comb (Va. 1909), 65 S. E. 557.
18. Jackson v Lambert, 121 Pa. St. 182,
15 Atl. 502 (1888) (location).
719
INFERENCE FROM SENSATION.
564
in regard to animals 10 their diseases and injuries 20 as to the quality of land 21
as to stock raising 22 or as to questions of insurance 23 or manufactures in-
cluding machinery 24 their repair, 25 tools, 2 " and standards applied. 27 The
same rules apply to maritime affairs including the construction 2S or equip-
ment - 1 ' of vessels or their management/' 1 ' Where any question arises as to
these matters which is a matter of common knowledge the opinion of the
skilled witness is not admissible/" 1
719. Mechanic Arts. 32 33 Although the witness has received merely a
practical training, he may state his inference with regard to a matter of me-
chanics 34 even where the latter constitutes the precise point upon which the
jury are to pass. 35 In stating an inference with regard to a matter of me-
chanic art, a degree of skilled training is required commensurate with the
technical nature of the reasoning to be employed. The scientific attainments
demanded may be of a very high order. :>>6 On the other hand, the qualifications
of a witness who offers to speak regarding a matter of mechanical art may be
19. Clague v. Hodgson, 16 Minn. 329
(1871) (age of sheep).
20. International & G. N. R Co. v. Mc-
Cullough (Tex. Civ. App. 1909), 118 S. W.
558 (splenetic fever) .
21. Farmers', etc., Nat. Bank v. Woodell, 38
Oreg. 294, 61 Pac. 837, 6.3 Pac. 520 (1900)
(raising sugar beets).
22. Cray son v. Lynch, 163 U. S. 468, 16
S. Ct 1064, 41 L. ed. 230 (1895) (Texas
fever ) .
23. Brink v. Merchants', etc., Ins. Co., 49
Vt. 442 (1877).
24. Gundlach v. Schott, 192 111. 509, 61
N. E. 332, 85 Am St. Rep 348 (1901).
25. \Yickes v. Swift Electric Light Co., 70
Mich 322, 38 X. W. 299 (1888).
26. Harvey v. Susquehanna Coal Co., 201
Pa. St. 63, 50 Atl. 770, 88 Am. St. Rep. 800
( 1 902 ) (mining apparatus )
27. Olmscheid v. Xelson-Tenney Lumber
Co., (56 Minn. 61, 68 N. W. 605 (1896) (op-
erating bolting saw without a carriage at-
tachment) .
28. Sikes v. Paine, 32 N. C. 280, 51 Am.
Dec. 38!) (1849) (ship carpenter); Anderson
v. U. S., 170 U. S. 481, 18 S Ct 689, 42 L. ed.
1116 (1898) (ship carpenter).
29. (lark v. Detroit Locomotive Works, 32
Mich. 348 (1875); Doherty v. Booth, 200
Mass. 522, 86 N. E. 945 (1909).
30. Ward v. Salisbury, 12 111. 369 (1851) ;
Baltimore Elevator Co v Xeal 05 Md 438. 5
Atl. 338 ( 188H) : Carpenter v. Eastern Transp.
Co., 71 N. Y. 574 (1878).
31. People v. Brown, 96 X. Y. Suppl. 957.
110 App. Div. 490 ( 1906) ; conditions making
a draft in case of fire.
Other instances of the application of com-
mon knowledge to facts of fire insurance
stand in the same position. Davis v. Con-
necticut Fire Ins. Co., 158 Cal. 766. 112 Pac.
549 (1910) (fall of building due to fire).
Expert. testimony as to operation of machin-
ery and danger of structure. See note. Ben-
der, ed., 142 X. Y. 39. Expert testimony by
engineers. See note, Bender, ed., 163 X. Y.
536.
32. 3 Chamberlayne, Evidence, 1988.
33. Blasting. Certain of the phenomena
presented in blasting operations may require
interpretation at the hands of a skilled ob-
server. Such a witness may, for example
testify to his inference as to whether a given
blast has been discharged. Stephen v. Duffy,
142 Til. App. 219 (1908).
34. Electrical wiring. A competent ex-
pert may testify that electrically charged
wires emitting flame or light are defective.
Prince v. Lowell Electric Light Corp., 201
Mass. 276, 87 N. E. 558 (1909). In the
same way, electrical experts can declare what
are the usual methods of repairing electric
wires under given conditions. Clark v.
Johnson County Telephone Co. (Iowa, 1909),
123 X W. 327.
35. Burton v. Burton Car Stock Co., 171
Mass. 437, 50 X. E. 1029 (1898)
46. Paul E. Wolff Shirt Co. v. Frank'.':,! hall,
96 Mo. App. 307, 70 S. W. 378 (1902).
:.<;;, FINGER PRINTS. 720-722
of the most severely practical kind. 37 Adequate knowledge, in the respect
involved, must be shown. One who has this knowledge may testify as to the
construction and use of firearms, 38 even dealers may be qualified, 39 and such
testimony may be given as to their sounds 40 or as to wounds 41 inflicted by them.
720. Finger Prints, and Tracks. Evidence of men who have studied
finger prints for a long time is admissible to show identity as there is a scien-
tific basis for its use and it is so general that courts must take judicial notice
of it. It is admissible as other proof as tending to make out a case. 43
So persons experienced in trailing men may testify to the difference in the
tracks of men walking and running. 44
721. Title to Real Estate It is the general rule that the opinion of an
expert conveyancer as to the validity of the title to real estate is not admis-
sible, though there is some authority to the contrary. 46
722. Medical Inferences. 47 Litigation is compelled to make a very ex-
tensive use of medical learning. In most cases of bodily injury or mental im-
pairment the help of a skilled physician is invoked for care and treatment.
Should legal proceedings follow, it is to the inferences of the man of medicine
that the parties with confidence are forced to appeal. A very wide scope is
permitted the testimony of a medical witness, whether as to bodily 48 or mental
conditions and what they seem to indicate. 49
37. Knight v. Overman Wheel Co., 174 experts saves a great deal of time as ques-
Mas*. 455, 54 X. E. 800 (1899). tions of title are so complicated. Spaeth v.
38. Orr v. State. 117 Ala. 69, 23 So. 696 Kouns, 95 Kan. 320, 148 Pac. 651, L. R. A.
(1897). 1915 E 271 (1915).
39. State v. Hughes (Xev. 1909), 102 Pac. 47. 3 Chamberlayne, Evidence, 1991-
562 2017.
40. Hunter v. State (Tex. C'r. App. 1908), 48. Chatsworth v. Rowe, 166 111. 114, 46
114 S. W 124. X. E. 763 (1897); Burt v 1 . Burt. 168 Mass.
41. Patton v. State (Tex. Cr. App. 1904), 204, 46 N. E. 622 (1897) (under influence of
80 S. W. 86. morphine).
43. People v. Jennings, 252 111. 534. 96 X Parts of the body. The competent
E. 1077, 43 L. R. A. (X. S.) 1206 (1911): physician may identify parts of a human
State v. Cerciello, 86 X. J. L. 309, 90 Atl. body submitted to his examination. Miller v.
1112, 52 L. R. A. (X. S.) 1010 (1914). State (Ark. 1910), 128 S. W. 353. Physi-
44. Grant v. State (Tex Crim. Rep ), 148 cian's testimony, see note. Bender ed., 163 X.
S. W. 760, 42 L. R. A. (X. S.) 428 (1912). Y. 586, Expert testimony in elevated rail-
46. The testimony of an abstracter of road cases, see note, Bender ed., 128 X. Y.
many years experience and of a conveyancer 488. Of physicians in insurance cases, see
of long experience as to the validity of title note, Bender ed.. 138 X'. Y. 88. Physician's
to a property in another state is not only testimony as to probable results of injury, see
admissible but should be controlling when note, Bender ed., 118 X. Y. 94. Admissibility
uncontradi<*led and it is improper for the of expert as to possible results of disease and
court to disregard the evidence entirely and injury, see note. Bender ed., 115 X Y. 65.
look at the abstract and reach a different 49. Com. v. Lynes, 142 Mass. 577. 8 X. E.
result, especially where the evidence was 408. 56 Am. Rep. 709 (1886) ( frequent sexual
given by deposition so that the court had no intercourse) : State v. Merriman. 34 S. C. 16,
reason for not believing the witness from 12 S. E. 619 (1890) (whether body had been
their appearance. This method of proof by moved).
722
INFERENCE FROM SENSATION.
Basis of Inference. The medical witness should be guided entirely by his
professional training in dealing with observed phenomena. 5 " He cannot prop-
erly ue his individual knowledge for the purpose, except so far as the latter
is disclosed by the evidence or is within the scope of his summarizing infer-
ence. 51 Unless something affirmative appears to the contrary, it will be as-
sumed that the witness is confining himself within these obvious limitations. 52
It is essential that the views of the medical man be held with a reasonable
degree of certainty 53 and he may also state the causes of the conditions he
finds. 54 The inference of the medical man may be so clear from a medical
standpoint as to be intuitive. 55 He may state any bodily conditions he finds 5C
including death and its probable cause 57 or diseases of human beings 58 or of
animals 59 or the cause of injuries 00 or their nature. 61 His testimony should
not, however, intrude on the province of the jury and he may state what could
or might have caused the injury but not what did cause it. 62 He may make
50. Grand Rapids, etc., R. Co. v. Huntley,
38 Mich. 537, 31 Am. Rep. 321 (1878);
O'Flaherty v. Nassau Electric R. Co., 165 X.
Y. 624, 59 X. E. 1128 (1!)00); Miller v.
Dumon, 24 Wash. 648, 64 Pac. 804 (1901)
(X-ray negative taken by himself).
51. Hitchcock v. Burgett, 38 Mich. 501
(1878).
52. Western, etc, R. Co. v. Stafford, 99
Ga. 187, 25 S. E. 656 (1896).
53. Spear v. Hiles, 67 Wis. 361, 30 N. W.
511 (1886).
54. Towaliga Falls Power Co. v. Sims, 6
Ga. App. 749, 65 S. E. 844 (1909). Opinion
as to cause of injury, see note, Bender ed.,
146 X. Y. 165. Expert testimony as to cause
of injury, see note, Bender ed., 127 N. Y. 667.
Opinions of physicians as to cause of disease,
see note, Bender ed., 149 X. Y. 329.
55. Hart?ler v. Metropolitan St. Ry. Co.,
140 Mo. App 665, 126 S. W. 760 (1910)
(pneumonia) .
56. Johnson v. Xorthern Pac. R Co., 47
Minn. 430, 50 X. W. 473 ( 1891 ) .
57. Eggler v People, 56 X. Y. 642 (1874).
A question to an expert as to the cause of
death in a homicide case based upon a given
hypothesis or upon personal knowledge of
the conditions or both is one that a properly
qualified witness may answer. The witness
is not limited to stating what could or might
have been the cause of death on the ground
that this is an invasion of the province of
the jury. State v. Buck. 88 Kan. 114. 127
Pac. 631, 42 L. R. A. (X S) 854 (1912):
State v. Hessenius, 165 Iowa 415, 146 N. W.
58, L. R. A. 1915 A 1078 (1914).
58. Reininghaus v. Merchants' L. Assoc.,
116 Iowa 364, 89 N. W. 1113 (1902) (liver
trouble ) .
59. Moore v. Haviland, 61 Vt. 58, 17 Atl.
725 (1888).
60. Smith v. State (Ala. 1910), 51 So. 610
(wounds) ; St. Louis & S. F. R. Co. v. Savage
(Ala. 1909), 50 So. 113; demons v. State
(Fla. 1904), 37 So. 647 (fracture of cheek-
bone by fist) : St. Louis Southwestern Ry. Co.
of Texas v. Taylor (Tex. Civ. App. 1909),
123 S. W. 714. The general rule is that ex-
pert evidence is not admissible for the pur-
pose of proving that a wound was or was not
self-indicted. But where a wound is of an
extraordinary nature and is upon a portion
of the body of which men have little or no
knowledge, then expert evidence is admissible
for that purpose. Miller v. State, 9 Okla.
Crim. Rep. 255, 131 Pac. 717, L. R. A. 1915
A 1088 (1913). There is a sharp distinction
between a question calling for an opinion by
an expert as to what might or might not have
caused an injury and one calling for an opin-
ion as to what in fact did cause it. The
latter question cannot be answered, as this is
the question which the jury are to settle.
Sever v. Minneapolis & St. L R. Co.. 156
Iowa 664. 137 X. W. 937, 44 L. R. A. (X. S.)
1200 (1912)
61. A dentist may state from the condition
of teeth observed by him whether the blow
which caused it was a heavy one. Gierc/ak
v. Xorthwestern Fuel Co., 142 Wis. 207, 125
X W. 436 H910K
62. Riser v. Southern R. Co., 67 S. C. 419,
46 S. E. 47 (1903).
567
MEDICAL INFERENCES.
723
mechanical estimates 63 as in case of injury as to the force, 64 direction 65 and
nature of a blow t!<i and location of parties (i ' or the instrument used. tis
He may state the mental condition of the person 69 as in cases where insan-
ity is claimed. 70 The attending physician is always permitted although not
an expert 71 to testify as to insanity or other medical conditions of .the patient,
but the medical witness cannot invade the province of the jury by giving his
opinion as to whether the patient was or was not of sufficient mental capacity
to perform the act in question.' 2
So an alienist may examine the person and from his observation give his
opinion as to the sanity ' 3 and even a trained nurse may give her inference
based on her observation. 74 The inferences of the medical witness may be of
a non-technical character 75 and cover a wide range 7C arid may include the
prognosis or the future chances of the patient 77 and the probable permanence
of the disease. So competent surgeons may give their opinions as to the
proper method of treating surgical cases. 70
723. [Medical Inferences] ; Qualifications of Witnesses. 80 In general, the
63. Fort v State, 52 Ark. 180, 11 S. W.
959, 20 Am St. Rep. 163 (1889); Com. v
Spiropoulos, 208 Mass. 71, 94 N. E. 451
(11)11) (wound self-inflicted) .
64. Com. v. Piper, 120 Mass. 185 (1876);
People v Rogers, 13 Abb. Pr. X. S. (X. Y.)
370 ( 1901 ) ; People v. Schmidt, 168 X. Y.
568. 61 X. E. 907 (1901).
65. Rash v. State, 61 Ala 89 (1878) ; Fort
v. State, 52 Ark. 180, 11 S. W. 959, 20 Am.
St. Rep. 163 (1880); People v. Phelan, 123
Cal. 551, 56 Pac. 424 (1899).
66. Fort v. State, 52 Ark. 180, 11 S. W.
959, 20 Am. St. Rep. 163 (1889) ; People v.
Fish, 125 X. Y. 136, 26 X E. 319 (1891).
67. State v. Buralli (Xev. 1903), 71 Pac.
532.
68. Abortion. Medical experts can tell the
kind of instrument with which an abortion
was committed. Commonwealth v. Sinclair
. (Mass. 1907). 80 X. E. 799.
69. Chicago Union Traction Co v. Scan-
Ion. 136 111. App. 212 (1007) (injured child
developed mentally according to her years) :
Toledo, etc , R. Co v. Baddeley. 54 111 19. 5
Am. Rep. 71 (1870^ (impaired): Burns v.
Brier. 204 Mas? 105. 90 X E. 309 (1910)
( fears of hydrophobia 1 .
70. A physician need not be an alienist, in
the sense that he is a specialist in that line,
to qualify him to testify as to mental con-
ditions United Rys &- Electric Co. v. Corbin,
109 Md. 442. 72 Atl. 606 (1909).
71. Hastings v. Rider, 99 Mass. 622 (1868) ;
Clark v. State, 12 Ohio 483, 40 Am. Dec. 481
(1843).
72. An expert witness cannot be asked
whether a person is capable of making a deed
as this involves not only an opinion as to
mental capacity but also as to what kind and
degree of mental capacity is necessary to make
an instrument valid and binding and this is
a question of law and not of fact. Coblent/
v. Putifer, 87 Kan. 719, 125 Pac. 30. 42 L. R.
A. (X. S.) 298 (1912).
73. Fairchild v. Bascomb, 35 Vt 398
(1862).
74. Illinois Steel Co. v. Delac, 103 111 App.
98 [affirmed in 201 111. 150, 60 X E. 245]
(1903) ; Van Deusen v. Xewcomer. 40 Mich
90 (1879).
75. That certain witnesses were physicians
did not disqualify them to testify that plain-
tiff walked with a limp, that she dragged her
right foot, and that the toe of her right shoe
was worn, matters which could have been tes-
tified to by lay witnesses. Schmidt v. Chi-
cago City Ry Co.. 239 111. 494. 88 N. E. 275
(1909).
76. White v Clements. 39 Ga. 232 (1869).
77. People v. Johnson, 70 111. App. 634
(1896).
78. Palmer v. Warren St R Co. 206 Pa.
St. 574. 56 Atl. 49, 63 L. R A. 507 (1903).
79. State v. McCoy, 15 Utah 136. 49 Pac.
420 (1897)
80. 3 Chamberlayne, Evidence, 2018.
724, 725 INFEKENCE FROM SENSATION. 568
qualifications required by judicial administration in a skilled medical observer
are the same as -those upon which it insists in case of other specially trained
witnesses when speaking from observation. 81 These are two. The witness
must be shown to have enjoyed suitable opportunities for observation of the
phenomena or appearances concerning which he purposes to speak. 82 But this,
standing alone, is by no means sufficient. 83 In the second place, he must be
proved or be fairly assumed to have had sufficient training by instruction,
reading or experience to have developed the mental power necessary to enable
him to coordinate what lie has perceived into an inference helpful to the jury.
It need not be shown that the witness stands at the head of his branch of science
or department of technical experience. 84
724. [Medical Inferences] ; Detail of Constituting Facts. 85 As in other
cases where the offer is to summarize, in part at least, the results of observation,
judicial administration will require that the medical observer state, with such
completeness as he can, the constituting facts upon which he grounds his infer-
ence. 86
These facts may be gleaned from the statements of the patient himself so
far as the symptoms are internal or not open to perception 87 but the state-
ments of others cannot be used by the skilled witness as a basis for his opinion. 88
Where the witness shows that he does not know the necessary facts his opinion
will not be received. 89
725. [Medical Inferences] ; Who is Qualified; Proof. 9 " As a matter of prac-
tice, any regularly qualified and acting member of the medical profession will be
received as a witness, 91 whether practising in the country or in the city, 92
except in some special branch of the field of medicine as insanity. 93 It will
be assumed that physicians are qualified without special proof, 94 and the ex-
perience of the witness may be of a practical character as in case of nurses. 95
81. Clemmons v. State (Ala. 1910), 52 So. 409, 46 Am. St. Rep. 28 (1893) ; Manhattan
467 (coagulation of blood) ; In re Vanauken, L. Ins. Co. v. Beard, 112 Ky. 455, 66 S. W.
10 N. J. Eq. 186 (1854). 35, 23 Ky. L. Rep. 1747 (1902).
82. Barnes v. Chicago City Ry. Co., 147 90. 3 Chamberlayne, Evidence, 2023-
111. App. 601 (1909). 2029.
83. Dashiell v. Griffith, 84 Md. 363, 35 Atl. 91. Stone v. Moore, 83 Iowa 186, 49 N. W.
1904 (1896). 76 (1891) (female physician) .
84. State v. Lyons, 113 La. 959, 37 So. 92. Bunel v. O'Day, 125 Fed. 303 (1903)
890 (1904) (disease of the optic nerve). (impotency).
85. 3 Chamberlayne, Evidence, 2019- 93. Cox v. State (Tex. Cr. App. 1910), 132
2022. S. W. 125.
86. Johnson v. Steam Gauge, etc., Co.. 146 94. State v. Kammell (S. D. 1000), 122
N. Y. 152, 40 X. E. 773 (1895). X. W. 420; Smits v. State, 145 Wis. 601, 130
87. Louisville, etc., "R. Co. v. Sandlin, 25 N. W. 525 (1911).
Ala. 585, 28 So. 40 (1900). 95. Dashiell v. Griffiths, 84 Md. 363, 35
88. Heald v. Thing, 45 Me. 392 (1858); Atl. 1094 (1806): Com. v. Gibbons, 3 Pa.
Foster v. New York Fidelity, etc., Co., 99 Super. Ct. 408, 39 Wkly Notes Cas. (Pa.)
Wis. 447, 75 N. W. 69, 40 L. R A. 833 (1898). 565 (1897) (discoloration of a limb).
89. Prince v. State, 100 Ala, 144, 14 So.
569 MEDICAL INFERENCES. 726, 7^7
The qualifications may be based on reading and study 96 or on special training 97
and even an unlicensed doctor may be allowed to give his opinion. 98
726. [Medical Inferences] ; Probative Weight." Many considerations may,
as is natural, affect the weight in evidence properly to be attached to the in-
ference of a medical observer. Thus, the fact that ah examination was not
recently made diminishes, so far as its influence extends, the probative force
which would otherwise attach to the inference of a medical observer drawn
from it. 1 In like manner, that the view of the medical witness rests, in large
part, upon the truth of the statements made to him by the patient or by others
is regarded as impairing, to a certain extent, merely the weight of his testimony. 2
The general features upon which the credibility of witnesses is based are the
same in this as in other connections. The results arrived at bv an examination
which is searching and thorough are, naturally, more reliable than those reached
by a casual or cursory inspection. 3 The bias of a medical witness toward the
side for which he testifies may be established in any logical way, e.g., that the
witness is interested to support his present contention in other connections. 4
Province of the Jury. The question as to the weight properly to be ac-
corded to the medical inference of a qualified physician is one for the jury. 5
727. [Medical Inferences] ; Results of Autopsy .^ A professionally trained
medical witness who has made an autopsy or has attended at the making of one,
may state his inference or conclusion as to what it indicated. 7
Ordinary Observers. Where one not qualified as a skilled witne>- is present
at an autopsy he may state the result of his personal observation. 8
96. Hardiman v. Brown, 162 Mass. 585, 39 observation of the witness have been made at
X. E. 192 (1895) (tumors). a time too remote to be relevant it will of
97. Where the presiding judge feels that the necessity be rejected.
medical inference to be drawn is one which 2. Mitchell v. State, 58 Ala. 417 (1877).
can most satisfactorily be reached by a spe- Cross-examination. The fact may be
cialist. and that it is fairly within the power ascertained upon cross-examination. Lay v.
of the proponent to produce such a witness. Adrian. 75 Mich. 438, 42 X. \V. 959 (1889).
the evidence of an ordinary physician may be In other cases, the inference so affected has
rejected. Emerson Gaslight Co.. 6 All. 146 been entirely rejected. Moore v. State, 17
i 18631 (effect of gas on the human system). Ohio St. 521 (1867).
The skilled observer need not. however, be a 3. Johnson v. Great Xorthern Ry. Co., 107
specialist. Castner v Sliker. 33 X. J. L. 05 Minn. 285, 119 X. W. 1061 (1909).
'1>!69): O'Xeil v. Dry Dock, etc.. R. Co., 59 4. Witty v. Springfield Traction Co. (Mo.
X. Y. Super. Ct. 123, 15 X. Y. Suppl. 84 App. 1911), 134 S. W. 82.
<1891) (deafness). 5. Levering v. Com. (Ky. 1909), 117 S. W.
98. Smits v. State. 145 Wis. 601. 130 X W 253.
525 (191 n. See also Golder v. Lund, 50 6. 3 Chamberlayne. Evidence. 2031.
Xehr 867. 70 X W. 379 (1897): People v. 7. People v. Schmidt, 168 X. Y. 568, 61
Rice. 159 X. Y. 400. 54 X. E. 48 (1899). X. E. 907. 14 X. Y. Cr. 188 (1901).
99. 3 Chamberlayne. Evidence. 2030. 8. State v. Lyons. 113 La. 959, 37 So. 890
1. Reininghaus v Merchants' L. Assoc.. 116 (1904) ; Carson v. State, 57 Tex. Cr. R. 394,
Iowa 364, 89 X. W. 1113 (1902). Should the 123 S. W. 590 (1909).
728-731 INFERENCE FROM SENSATION. 570
728. Military Affairs. 9 War is scientific. Members of the army or
navy will be permitted to state the relevant technical inferences which may
arise from their observation. As a matter of special knowledge, military men
of sufficient experience or training may be heard to declare the written regula-
tions lo and unwritten practice relating to their branch of the service.
729. Mining Matters. 1 1 In sections of the country where mining is a
prominent industry, the skill of a trained observer in this branch of art is
frequently utilized by courts of justice. Any witness sufficiently equipped by
scientific training or practical experience to make his reasoning helpful to the
jury may state a technical inference from what he has observed. 12 Unless a
scientific or practical skill commensurate with the quality of the inference is
shown by the witness, his testimony will be rejected as irrelevant. 13
The testimony may relate to the construction and lay-out, 14 or equipment, 15
operation, 16 and dangers from soil-caving 17 in mines. The expert should
state such of the constituting phenomena as he reasonably can. 18
730. Photographic Art. 19 An observer skilled in photography may state
his inferences from appearances which he has observed. He may be a com-
petent judge as to the quality of work, e.g., whether a particular photograph
has been well taken. 20 It has been very rationally required that for one
skilled in photography to testify that a photographic likeness is a good one, his
observation must have covered not only the photograph, but also the sitter as
well. 21 On the other hand, one entirely unacquainted with the technical
merits of a photograph as a piece of professional work, may state whom, if
any one, it resembles. 22
731. Railroad Matters; Qualifications. 23 As a source of litigation, rail-
roads have few compeers. Abundant opportunity is therefore furnished for
receiving, under proper administrative conditions of necessity and relevancy,
the inferences of observers trained in the various branches of the art of rail-
9. 3 Chamberlayne, Evidence, 203la. 151 Pa. St. 431, 25 Atl. 101 (1892) (coal).
10. Bradley v. Arthur, 4 B. & C. 292, 6 15. Harvey v. Susquehanna Coal Co., 201
D. & R. 413, 10 E. C. L. 585 (1825). Pa. St. 63, 50 Atl. 770, 80 Am. St. Rep. 800
11. 3 Chamberlayne, Evidence, 2032, (1902).
2033. 16. Clark v. Willett, 35 Cal. 534 (1868)
\2. Ferrari v. Beaver Hill Coal Co. (Or. (tunneling).
1909), 102 Pac. 1016 (signal out of repair) ; 17. Sloss-Sheffield Steel & Iron Co. v.
Anderson v. U. S., 152 Fed 87, 81 C. C. A. Green (Ala. 1909). 49 So. 301.
311 (1907) (value of land for mining pur- 18. Wells v. Leek, 151 Pa. St. 431, 25 Atl.
poses). 101 (1892).
13. Bennett v. Morris (Cal. 1894), 37 Pac. 19. 3 Chamberlayne, Evidence, 2034.
929; Garfield M. & M. Co. v. Hammer, 6 20. Barnes v. Ingalls. 39 Ala 193 (1863K
Mont. 53, 8 Pac. 153 (1885). See also Harris 21. Schwartz v. Wood, 21 N Y. Suppl. 1053
v. Consolidation Coal Co., Ill Md. 209, 73 Atl. ' (1893) .
805 (1909). 22. Russell v. State (Ala. 1905). 38 So. 291.
14. Hickey v. Anaconda Copper Min. Co. 23. 3 Chamberlayrie, Evidence, 2035-
(Mont. 1905), 81 Pac. 806; Wells v. Leek, 2040.
571 RAILROAD MATTERS. 732
roading. As a general rule, wherever the observed phenomena are too nu-
merous and intangible effectively to be placed before the jury, the skilled rail-
road witness is received. Should it happen that the inference is a technical
one, requiring for its formation and expression the use of special faculties
which the jury cannot be assumed to possess, the same result follows.
To Admit the Witness, the judge must be satisfied that his qualifications are
commensurate with the conclusion which he purposes to draw. 24
Preliminary Detail of Constituting Facts. The witness will be required, as
a matter of practice, to state the detail of constituting facts, so far as he
reasonably can, upon which he bases his act of reasoning. 25
Special Training. While the qualifications of the skilled observer as to
railroad matters are usually gained through employment in the railroad busi-
ness, it is not necessary that this should be the fact. One who like an experi-
enced traveler, 20 has been brought into close connection with railroads in some
other capacity may be regarded by the presiding judge as competent to draw
certain inferences.
Protecting the jury. Upon familiar administrative principles, the infer-
ence of the witness must be connected with his observation and no. unnecessary
intrusion upon the reasoning of the jury will be permitted. It naturally re-
sults that general expressions as, in case of an engineer, that he " could not
have done more '' 2T to avert an accident will not be received.
The evidence may cover the construction, 28 equipment, 29 operation 30 and
methods of transportation of goods 31 or animals 32 provided it is given by a
trained man. 33
732. Street Railways. 34 The technical learning of the trolley or street
railway is second in importance, if inferior at all, only to that of the railroad. 35
24. Dillburn v. Louisville & N. R. Co. ( Ala. smoke to rise from the locomotive is a proper
1908), 47 So. 210; Dietrichs v. Lincoln, etc., subject for skilled inference. Harrison v.
R. Co., 13 Xebr. 361, 13 X. W. 624 (1882). Xew York Cent. & H. R. R. Co., 195 N. Y.
See also Horton v. Louisville & N. R. Co. (Ala. 86, 87 N. E. 802 (1909).
1909), 49 So. 423 (engineer); Pennsylvania 31. Shriver v. Sioux City, etc., R. Co., 24
Co. v. Whitney, 169 Fed. 572, 95 C. C. A. 70 Minn. 506, 31 Am. Rep. 353 (1878); Ft.
(1909) (brakeman). Worth, etc., R. Co. v. Harlan (Tex. Civ. App.
25. San Antonio, etc., R. Co. v. Waller. 27 1901), 62 S. W. 971 (properly packed and
Tex. Civ. App. 44. 65 S. W. 210 (1901). iced with a given quantity of ice).
26. Central of Georgia Co. v. Storrs (Ala. 32. Lindsley v. Chicago, etc., R. Co., 36
1910), 53 So. 746. Minn 539, 33 X. W. 7, 1 Am. St. Rep. 692
27. Macon, D. & S. R. Co. v. Stewart. 125 (1887) (suffering from heat).
Ga. 88, 54 S. E. 197 (1906). 33. Hoyt v. Long Island R. Co., 57 X. Y.
28. Cross v. Lake Shore, etc., R. Co.. 69 678 (1874) ; Missouri Pac. R. Co. v. Jurrard,
Mich. 363, 37 X. W. 361, 13 Am. St. Rep. 399 65 Tex. 560 (1886) (safety of track). Pro-
(1888) (dangerous). priety of export testimony on railroad oper-
29. Birmingham R., etc., Co. v. Baylor, 101 ations. see note, Bender ed., 164 X. Y. 436.
Ala. 488, 13 So. 793 (1893) (switch secured) ; 34. 3 Chamberlayne. Evidence, 2041.
Baltimore, etc.. R. Co. v. Elliott, 9 App. Cas. 35. Sanding track. As a matter of rea-
(D. C.) 341 (1896) (coupling). soning. suitably qualified motormen may state
30. That shutting off steam causes the as to how far the providing of appliances by
733 INFEKENCE FBOM SENSATION. 572
In much the same way as the latter, and presenting many instructing analogies
to it, the construction, equipment and operation of transportation lines for
carrying passengers, express or freight, employing electricity as a motive
power, 36 present numerous opportunities for utilizing the reasoning of skilled
observers.
733. Telegraphing. 37 The use of electricity for the conveyance of intel-
ligence is an art in which a high degree of skill may be acquired. Facts of
special knowledge 3S and inferences relating to technical matters can be stated
only by the trained observer.
The ordinary construction 39 and equipment of telegraph lines may, in their
usual incidents, be established in the same way.
which sand may be placed on slippery rails of the new agency. Nolan v. Newton St. Ky.
is essential to the safety of employees and Co., 206 Mass. 384, 92 N. E 505 (1910).
passengers. Mayer v. Detroit, Y , A. A. & J. 37. 3 Chamberlayne, Evidence, 2041a.
R. Co., 152 Mich. 276, 116 N. W 429, 15 De- 38. Postal Telegraph -Cable Co. of Texas v.
troit Leg". N. 231 (1908). S. A. Pace Grocery Co. (Tex. Civ. App. 1910),
36. Electricity as a motive power. Use of 126 S. W. 1172.
electricity as a motive power in street cars 39. Barrett v. New England Telephone &
has had a marked effect in bringing the man Telegraph Co., 201 Mass. 117, 87 N. E. 565
of science to the aid of the courts in the nu- . (1909) (setting poles),
merous cases resulting from the employment
CHAPTER XXIX.
ESTIMATES.
Estimates, 734.
Administrative requirements, 735.
Age, 736.
Capabilities; animate objects, 737.
mechanical, 738.
causation, 739.
Dimensions, speed, weight, etc., 740.
734. Estimates The inferences of witnesses, ordinary or skilled, are with
great frequency received in the form of an estimate. 1 Indeed it may fairly
be said that such estimating is a constant and necessary incident of daily life.
Where the results are intuitive, as they commonly are, the statement is one of
fact. Exactness is confessedly only approximate, the process of estimating
being like many acts of judgment, the application of a standard, of distance,
quality, quantity, value or the like, to certain observed phenomena.
735. Administrative Requirements. Estimates, like other forms of reason-
ing by witnesses, present a grade of secondary evidence. An adequate forensic
necessity for receiving it must accordingly be shown. Judicial administration
does not accept secondary proof while the primary can reasonably be required.
Shoulcl exact measurements of the phenomena by the application of any
standard have been made arid be available, estimates, except occasionally by
way of corroboration, will be rejected. 2 In many cases, however, necessity is
shown for the reception of the secondary evidence. 3
1. " It came within that class of cases these and an infinite variety of other cases,
Avhere evidence is received from necessity, the conclusion is drawn from evidence ad-
arising from the impossibility of stating dressed to the eye or ear, or both, and which,
those minute characteristics of appearance, from its very nature, cannot be described to
sound, and the like, which, nevertheless, may another. If it could be, so as to enable a
lead the mind to a satisfactory conclusion, jury to decide, then the necessity of receiving
and be reasonably reliable in judicial hives- the opinion, if it may be so called, would not
tigations Among instances of this class, exist, and the opinion should not be received."
forming an exception to the general rule, is State v. Sh inborn, 46 X. H. 497, 501, 88 Am.
the proof of identity in a great variety of Dec. 224 (1866).
cases; such as the identity of person, hand- 2. Piothchild v. New Jersey Cent. R. Co.,
writing, animals, and inanimate objects: and 163 Pa. St. 49, 29 Atl. 702 (1894). See also
eo where the identity is detected by the ear, Blauvelt v. Delaware, etc., R. Co., 206 Pa. St.
or by the sound of the human voice, of a 141. 5."> Atl. 857 (1903).
musical instrument, the discharge of a pistol, 3. Pennsylvania Co. v. Conlan, 101 111. 93,
and the like. Tn the same class are opinions 101 (1881).
as to distances, size, weight, and age. In
573
736,737
ESTIMATES.
574
Administration further requires, not only that a suitable necessity for re-
ceiving the estimate should be shown, but also that the latter should be so
probatively relevant as to be rationally helpful to the jury. That this should
be so, it is insisted, as in other connections where judicial use is made of the
results of observation, that the witness should have had both adequate oppor-
tunities for observing 4 and sufficient mental powers for coordinating what he
has seen into an act of helpful reasoning. It is to be understood, moreover,
that the fact to be established by the act of reasoning is objectively relevant. 5
736. Age From appearances presented to his observation, a qualified
witness " may estimate the age of a given individual. The status of the person
is immaterial. The estimate may apply equally well to adults, 7 minors 8 and
even to children, 9 animals 10 or inanimate objects, 11 but if the person or object
is in court the jury will be permitted to judge for themselves without any
estimates from witnesses. 12
737. Capabilities ; Animate Objects. The inference that one with ordin-
nary powers could have heard a given sound 13 may be estimated by a witness
who has had sufficient opportunity for observing the attending phenomena.
Whether a person actually did hear a given conversation or individual sound
4. Lake Erie, etc., R. Co. v. Juday, 19 Ind.
App. 436, 49 X. E. 843 (1898) (control
horse) ; Pridmore v. State (Tex. Cr. App.
1898), 44 S. VV. 177.
5. Chicago, etc , R. Co. v. O'Sullivan, 143
111 48, 32 N. E. 398 (1892).
6. People v. Bond (Cal. App. 1910), 109
Pat- 150. Knowledge of the color of the hair
of a person in question and of his strength
and activity is not a sufficient qualification.
Hartshorn v. Metropolitan L. Ins. Co., 55 N.
Y App. Div. 471, 07 X. Y. Suppl. 13 (1900).
These preliminary details of observation, the
witness may reasonably be called upon to
state. People v. Davidson, 240 111. Ifll, 88
X. E. 565 i I'.lOO).
7. State v. Orubb. 55 Kan. (578. 41 Pac. 951
(1805); Com. v. O'Brien, 134 Mass 198
(1883). Most courts have admitted non-
expert opinion as to age but it has recently
been excluded in Xew Jersey. State v. Koett-
gen, 8!) X. J. I.. 078, 90 Atl. 400. ,
8. State v. Bernstein. 99 Iowa 5, 68 X. W.
442 (1896).
9. People v. Johnson, 70 111. App. 634
(1896); McFadden v. Benson, Wils. (Tnd )
527 (1874): Stewart v. Anderson, 111 Iowa
329, 82 X. W. 770 (1900).
10. Clague v. Hodgson, 16 Minn. 329
(1871).
11. Bufford v. Little (Ala. 1909), 48 So.
697 (stumps old or recently cut) ; Standefer
v. Aultman Machinery Co (Tex. Civ. App.
1904), 78 S. W. 552 (thresher old and worn
out) .
12. State v Megorden (Ore. 1907), 88 Pac.
306 (wound) ; State v. Robinson, 32 Oreg.
43, 48 Pac. 357 (1897). See also Ham v.
State (Ala. 1908), 47 So. 126.
Where there is a conflict in the evidence
as to the age of the witness the jury have a
right to consider his size, appearance, etc., in
connection with the other evidence, but the
better rule is to have such description sup-
plied by evidence which can be preserved in
the record But where no evidence has been
offered on the subject and where the atten-
tion of the jury has not been called to the
appearance of the witness for that purpose it
is error to accept the finding of the jury on
the question Quinn v. People, 51 Col. 350.
117 Pac. 996. 40 L. R. A. (X. S.) 470 (1911).
13. Chicago, etc.. R. Co. v. Dillon. 123 Til
570. 15 X. E. 181, 5 Am. St. Rep. 559 (1888)
[affirming 24 111. App. 203 (1887)]; Crane v.
Michigan Cent. R. Co.. 107 Mich. 511, 65
X. W 527 (1885).
575 MECHANICAL. 738,739
may properly be rejected as being an inference involving too large a porportion
of the element of reasoning to be warranted by any administrative necessity
shown to exist. 14 A suitably qualified witness may be allowed to state, under
proper conditions of necessity and relevancy, his inference by way of estimate
as to whether a certain person could, in a particular situation, have observed
a certain occurrance. 15 80 an opinion will be received as to whether a given
individual could have smelt a particular odor. 10
738. [ Capabilities 1 ; Mechanical. In passing from animate to inanimate
objects, the same administrative rule is found continuing to apply. The possi-
bility that a given object could have produced a particular result, e.g., a razor
make a special wound, 17 may be proved by the estimate of an observer.
Whether a machine, 18 mechanical device 19 or a coordinated unit of many parts,
such as a manufacturing establishment, 20 is capable of turning out a stated
amount of work, may properly be estimated in the same way.
739. [Capabilities]; Causation Whoso understands causation, compre-
hends the universe. For practical purposes, the number of instances in which
an estimate may properly be made as to the existence of a relation of cause and
effect are innumerable. In fact it is in connection with the category of causa-
tion alone that the uniformity of nature or of conduct upon which, as the ulti-
mate basis of all sound induction, evidence is based, becomes practically avail-
able for the discovery of truth.
So estimates may be received as to the cause of natural occurrences, 21 the
effect of the application of force. 22 the cause of sickness 23 or injury 24 to human
beings or the actions of animals. 25 The same rule permits the observer to
state the effect of certain phenomena 26 and the witness need not confine his
14. Dyer v. Dyer, 87 Ind. 13 (1882) ing): Burns v. Welch, 8 Yerg. (Tenn.), 117
15. Case v. Perew, 46 Hun 57 (1887) (light (18,35) (sawmill).
on shore from harbor). 21. Wintringham v. Hayes, 144 N. Y. 1, 38
16. Adler & Co. v. Pruitt (Ala. 1910). 53 X. E. 999. 4.3 Am. St. Rep. 725 (1894).
So. 315 (sewage disposal plant). 22. Healy v. Visalia, etc., R. Co., 101 Cal.
17. State v Knight, 43 Me. 11, 130 (1857). 585, 36 Pac. 125 (1894) ; Ball v. Mabry, 91
18. McCormick Harvesting Mach. Co v. Ga. 781, 18 S. E. 64 (1893)
Cochran. 64 Midi. 63(5, 31 X. W. 561 (1887) ' 23. Suddeth v. Boone, 121 Iowa 258, 96
(harvester) -. Sprout v. Xewton, 48 Hun i X. X. W. 853 (1903) (that smell of sewer outlet
Y.) 209, 15 X. Y. St. 699 (1888). made witness sick): Pullman Palace Car Co.
19. Romona Oolitic Stone Co. v. Shields v. Smith, 79 Tex 468, 14 S. W. 993, 23 Am.
(Ind. 1909). 88 X. E. 595 (derrick). St. Rep. 356. 1.3 L. R A. 215 (1890).
Basis of estimate. Studying a similar ma- 24. Everett v. State, 62 Ga 65 (1878):
r-hine may he regarded by judicial administra- State v. Smith, 22 La. Ann. 468 (1870).
tion as furnishing satisfactory opportunities 25. Fright of horse. Clinton v. Howard,
for observation in order to form an estimate 42 Conn. 294. 307 (1875) : Yahn v. Ottumwa.
helpful to the jury. Sprout v. Xewton. 48 60 Iowa 429, 15 X. W. 257 (1883): Stone v.
Hun (X. Y.) 209, 15 X. Y. St. 699 (1888). Pendleton, 21 R. I. 332, 43 Atl. 643 M899)
20. Fletcher v. Prestwood (Ala. 1905), 38 26. Seagel v. Chicago, etc., R. Co., 83 Iowa
So. 847 (sawmill): Paddock v. Bartlett. 08 380, 49 X. W. 990 (1891) (collision with a
Iowa 16, 25 N. W. 906 (1885) (pork-pack- locomotive).
ESTIMATES.
576
remarks to actual conditions, 27 but may extend them to hypothetical cases and
inferences 2S and the present probabilities of future effects. 29
740. Dimensions ; Speed ; Weight ; Etc. Dimensions, length, breadth, thick-
ness, width, and the like," are frequently estimated by the inference of ordi-
nary observers. It is equally open to a qualified witness to state any change
which he has observed in these or other dimensions. 1 ' l
\\here exact measurements have been taken or attempted, the result may be
stated by any person who is aware of it from observation. 32 One found to be
qualified may properly state his estimate upon area. 33 or grade. 34 height, 35
direction/" 1 distance, 37 expense, 38 identity, 39 location, 4 " number, 41 quality, 42
27. Technical inferences. Should the rea-
soning of the witness relate to a matter of
special knowledge and no qualifying acquire-
ments be shown the inference will be re-
jected. Marshall v. Bingle, 36 Mo. App. 122
(1889).
28. Gulf, etc., R. Co. v. Richards, 83 Tex.
203, 18 S. W. 611 (1892) (railroad construc-
tion ) .
29. West v. State, 71 Ark. 144, 71 S. W.
483 (1903) (nuisance on health); Pennsyl-
vania Co. v. Mitchell, 124 Ind. 473, 24 N. E.
1065 (1890) ; Bennett v. Meehan. 83 Ind 566,
43 Am Rep. 78 (1882) (drainage); Roches-
ter, etc, R. Co. v Hudlong, 6 How. Pr. (N.
Y.) 467 (1851) (railroad layout).
30. Eastman v. Amoskeag Mfg. Co., 44 N
H/143, 82 Am. Dec. 201 (1862); Morrisette
v. Canadian Pac. R. Co, 76 Vt. 267, 56 Atl.
1102 (1003) (two-throw switch); Park v.
Northport Smelting & Refining Co., 92 Pac.
442 (1907) (board feet). A shoemaker may
state that a certain boot will fit a given foot
State v Nordstrom, 7 Wash. 506. 35 Pac. 382
(1803).
31. Romack v. Hobbs (Ind. Sup. 1892), 32
N E 307 (ditch).
32. Busch v Kilborne, 40 Mich. 297 (1879)
(unprofessional log sealer).
33. Bennett v Meehan. 83 Ind. 506, 43 Am.
Hep 7* (12): Darnel v. Harshman, 113
Io\\a 2S3, 85 X. W. 85 (1901).
34. Where the witness has seen the work-
done in changing the grade of a street, he
may state his estimate a? to the height of
the change, though he has not actually meas-
ured it. Downey Bros Spoke & Bending Co.
v Pennsylvania R Co.. 219 Pa. 32, 67 Atl
916 (1907).
35. Downey Bros. Spoke & Bending Co. v
Pennsylvania R. Co. 219 Pa 3'2. 07 Atl. 916
(1907) (grade). See also Vermillion Co. v
Vermillion, 6 S. D 466, 61 N. W. 802 (1894)
(column water from main) ; Richardson v.
State (Tex. Cr. App. 1906), 94 S. W. 1016.
36. State v. Shinborn, 46 X. II 497. 88
Am. Dec. 224 (1866); Ohio, etc., R. Co. v.
Wrape, 4 Ind. App. 108, 30 X. E. 427 (1891)
(cattle struck); State v. Knight, 43 Me. 11
(1857).
37. People v. Gleason, 127 Cal. 323, 59 Pac.
592 (1899); People v. Alviso, 55 Cal. 230
(1880); Illinois, etc., R. Co. v Swisher, 53
111. App. 411 (1893); Eastman v. Amoskeag
Mfg. Co., 44 X. H. 143, 82 Am. Dec. 201
(1862).
Railroad matters. An ordinary witness
properly qualified by opportunities for obser-
vation may estimate the distance to which the
headlight of a given locomotive will throw
its light. St. Louis, M. & S E Ry. Co. v.
Shannon (Ark. 1905), 88 S. W 851.
38. Thompson v. Keokuk, etc., R. Co., 116
Iowa 215, 89 X. W. 975 (1902)
39. Jackson v. State, 52 So. 730 (1910)
(gun) : State v. Vanella, 40 Mont. 326, 106
Pac. 364 (1910) (voice)
Complete certainty is not required. State
v. Richards (Iowa 1905). 102 X. W. 439;
Sparkman v. State (Tex. Cr. App. 1911 ), 135
S. W. 134 (impression): Buzan v. State
(Tex. Cr App. 1910). 128 S W. 388. Some
satisfactory basis of inference must, however,
be shown That the accused corresponded
with a horse thief in ' si/e, shape and build "
is not sufficient. Pool v. State (Tex. Cr. App.
190.->K SS S. W. 350.
40. Xesbit v. Crosby, 74 Conn. 554. .11 Atl
550 (1902) (wagon): International & H X.
X. R Co v. Morin (Tex. Civ. App. 1909). 116
S. W 656 (railroad tracks') Hep aJsn Mc-
Donald v. Wood. 118 Ala. 589. 22 So. 489. 24
So S6 (1897) (survev line).
41. A witness, skilled or ordinary, may
577
DIMENSIONS.
740
quantity, 43 or resemblance. 44 In the same category fall estimates of sound 45
and the speed of objects 4<! as automobiles, 47 animals, 48 railroad 49 and trolley
cars, 50 comparative speed, 51 temperature, 5 - time, 53 value, 54 and weight. 55
stale the average number of farm hands em-
ployed during a given time Fowler v. Fow-
ler, 111 Mich. tiTO, 70 X. \V. 330 (1897).
42. A qualified witness may testify that
the grade of gold employed in certain jew-
elry is inferior to that designated by the
marks with which it is stamped Moline
Jewelry Co. v. Dinnan, 81 Conn 111, fO Atl.
634, 17 L. R. A. (X. S.) 1119 (1908).
43. Baker v. Cotney (Ala. 1005), 38 So.
131 ; Bryant Lumber Co v. Crist (Ark. 1908),
112 S. W. 965 (timber): Montgomery v.
Southern Power Co. (S. C. 1910), 68 S. E.
1047 (timber); Berge v. Kittleson (Wis.
1907), 114 X. VV. 125 (milk).
44. Com. v. Dorsey, 103 Mass. 412 (1869)
(that hair resembled that of deceased). The
estimate that a child was begotten by A, i.e.,
that A was his father, because of certain phys-
ical resemblances to him in color, feature
and the like, has been regarded by a majority
of American jurisdictions as too fanciful and
conjectural to be of assistance to the jury.
Shorten v. Judd, 56 Kan. 43. 42 Pac. 337, 54
Am St. Rep. 587 (1895); People v. Carney,
29 Hun 47 (1883). As is said by the court
in Maryland [Jones v. Jones, 45 Md. 144. 152
(1876) J. " We all know that nothing is more
notional in the great majority of cases.
What is taken as a resemblance by one is not
perceived by another, with equal knowledge
of the parties between whom the resemblance
is supposed to exist. Where the parties are
before the jury, and the latter can make the
comparison for themselves, whatever resem-
blance is discovered may be a circumstance,
in connection with others, to he considered.
But to allow third persons to testify as to
their notions of the resemblance supposed to
exist between parties, would be allowing that
to be given as evidence upon which no ra-
tional conclusion could be based, but which
might readily serve to mislead the jury"
This is true in case of an infant of tender
vears.
45. That a certain sound appeared to be
that of a collision is not objectionable as opin-
ion evidence. Binsbacher v. St. Louis Transit
Co., 108 Mo. App. 1, 82 S. VV. 540 (1904).
46. Johnson v. Coey, 142 111. App. 147
( 190S) . Estimates of witnesses of speed even
though undisputed are not physical facts suf-
ficient to overthrow the direct testimony of a
witness as to his acts. Mosso v. Stanton Co.,
75 Wash. 220, 134 Pac. 941, L. R. A. 1916 A
943 (1913).
47. Wolfe v. Ives, 83 Conn. 174, 76 Atl. 526
(1910). See also Scholl v. Grayson (Mo.
App. 1910), 127 S. VV 415; State v. Watson
(Mo. 1909), 115 S. W. 1011.
48. Xesbit v. Crosby, 74 Conn. 554, 51 Atl.
550 (1902); Brown v. Swanton, 69 Vt. 53,
37 Atl. 280 (1896).
49. Flanagan v. New York Cent., etc., R.
Co., 173 X. Y. 631. 66 N. E. 1108 (1903)
[affirming 70 X. Y. App. Div. 505, 75 N. Y.
Suppl. 225 (1902)].
50. Mertz v. Detroit Electric R. Co., 125
Mich. 11, 83 X. W. 1036 (1900).
51. Kansas City, etc., R. C. Co. v Crocker,
95 Ala. 412, 11 South. 262 (1891) (car);
Ball v. Mabry, 91 Ga. 781, 18 S. E. 64 (1893) ;
Mertz v. Detroit Electric R. Co., 125 Mich. 11,
83 X. W. 1036 (1900).
52. Leopold v. Van Kirk, 29 Wis. 548
(1872).
53. Atlanta, etc., R. Co. v. Strickland, 116
Ga. 439, 42 S. E. 864 (1902) (short time);
Bayley v. Eastern R. Co., 125 Mass 62
(1878): McGrath v Great Xorthern R. Co.,
80 Minn. 450, 83 N. VV. 413 (1900). The
rule is the same even in criminal cases.
State v. Williams ( Xev. 1909), 102 Pac. 974.
54. See Chapter x\\. 741 et set].
55. Dyas v. Southern Pac Co.. 140 Cal.
296, 73 Pac. 072 (1903) (counter balance on
a derrick) ; People v. Wilson, 16 X. Y. Suppl.
583 (1891) (blue stone).
CHAPTER XXX.
*
VALUE.
Value, 741.
various methods of proof, 742.
Market value, 743.
< hearsay, 744.
individual, 745.
qualifications, 746.
The proper market, 747.
Proof by estimate; time of estimate, 748.
Change in value, 749.
Relative value, 750.
Administrative requirements; necessity, 751.
relevancy demanded, 752.
qualifications of witness; adequate knowledge, 753.
claim of knowledge, 754.
action of appellate courts, 755.
preliminary statement of fact, 756.
Ordinary observer; personal property, real estate and services, 757.
Owner as witness, 758.
Skilled observer as witness, 759.
Skilled witness testifying as an expert, 760.
probative force of the judgment; how tested, 7<H.
function of the jury, 762.
Constituents for the expert's judgment; factors controlling it, 763.
741. Value. 1 Few estimates by observers are so frequently utilized by
judicial administration as is that of value. 2 The special reason for this lies
in the fact of its intimate connection with the substantive Jaw relating to
damages. In most actions at law this is the object sought and the ascertain-
ment of damages, being in terms of money, has necessarily given to value, in
legal acceptation, a special meaning. Of the broader signification assigned by
political economy, that of the power of the article in question to command
other commodities, exchange or barter, the law knows little or nothing.
Legally speaking, value means very nearly w r hat the political economist under-
stands by price. Value, then, may, for present, purposes, be defined as the
amount of money which real estate, personal property or services will com-
mand in an open market.
1. 3 Chamberlayne, Evidence, 2096. 2. Taft v. Com., 158 Mass. 526, 33 N. E.
1046 (1893).
578
579 MARKET VALUE. v 742, 743
742. [Value] Various Methods of Proof. 3 The fact of value is, iii general,
determined, according to certain considerations hereafter mentioned, in one of
two ways: (1) The establishment of a market value; (2) The estimates of
observers, ordinary or skilled, or the judgments of experts.
743. Market Value. 4 Of the two modes of proving value, it has been said
that their respective employment is dependent upon whether the existence of a
market value can or cannot be assumed. The definition of the term " market
value " need furnish no particular difficulty. It is, using " value " as equiva-
lent to price, and may fairly be defined as: The price current, the price a
commodity will bring when sold in open market. Market value is regulated
by the proportion which is actually brought to market and the demand of
those who are willing to pay the natural price of the article. This latter,
" natural price," as political economy might well put it, represents the rent,
labor and profit which must be paid in order to bring the commodity to the
market in question. Wherever real estate, 5 personal property 6 or services can
fairly be said to have a true market value, 7 it may be proved, as a fact, 8 as it
was at any relevant time 9 and for any germane use. 10 The method of estab-
lishing it, however difficult in practice, is, in theory at least, simple from the
standpoint of judicial administration in relation to evidence.
Absence of Market Value. Should it be claimed that there is no market
value for a given commodity or piece of land, it will be sufficient in order to
let in other evidence, that the court should be satisfied that there is in fact no
market value. 11 It will not be necessary to make the existence or non-exist-
ence of a market value an issue in the case.
3. 3 Chamberlayne, Evidence, 2097- 9. Atchison, etc , R. Co. v. Gabbert, 34 Kan.
2099 132, 8 Pac. 218 (1885) ; Park v. Chateaugay
4. 3 Chamberlayne, Evidence, 2099a, Iron Co.,- 8 N. Y. St. 507 (1887); McNicol v.
2099b Collins, 30 Wash. 318, 70 Pac. 753 (1902);
5. Gearhart v. Clear Spring Water Co., 202 Boyd v. Gunnison, 14 W. Va. 1 (1878).
Pa. St. 292, 51 Atl. 891 (1902) ; Sullivan v. 10. Gerhart v. Clear Spring Water Co., 202
Missouri, etc., R Co.. 29 Tex. Civ. App. 429, Pa. St. 292, 51 Atl. 891 (1902). Knowledge
68 S W. 745 (1902). of market value as it exists for some purpose
6. Missouri, etc., R. Co. v. Truskett, 18t unconnected with the case, is not sufficient to
U. S 480, 22 S Ct. 943, 46 L. ed. 1259 (1902) qualify a witness. Loesch v. Koehler, 144
(cattle) Ind. 278, 41 N. E. 326, 43 N. E. 129, 35 L R.
7. Smith v Griswold, 15 Hun (X. Y ) 273 A. 682 (1896). The estimate must be con-
(1878) : Gulf, C. & S. F Ry. Co. v Cunning- fined to the precise quality involved in the
ham iTex Civ App. 1908), 113S. W. 767 inquiry. Todd v. Warner, 48 How Pr (N
The fact that there is a market value Y) 234 U871). Opinion evidence on dam-
must fir^t i>e established as a preliminary age, see note. Bender ed . 29 X. Y. 39. Proper
matter. Smith v Griswold, 15 Hun (N. Y.) evidence on question of value, see note, Ben-
273 (187S) der ed , 141 X. Y. 140. To prove value of
8. Cost of production. Where a market property basis for, see note, Bender ed., 43
value is shown to exist, the cost of produo- X. Y. 284.
tion (Chamberlayne. Evidence, 2175c) is 11. Pennington v. Redman Van & Storage
immaterial. Moelering v. Smith, 7 Ind. App. Co., 34 Utah 223. 97 Pac. 115 (1908).
451, 34 X. E 675 (1893).
744,745 VALUE. 580
744. [Market Value] ; Hearsay. 12 In connection with proof of market
value, judicial administration sanely rejects the influence of the so-called
" hearsay rule." Courts have recognized that there is, in reality, no valid
distinction to be drawn between the inference that a statement is true because
it has been made and any other inference which may rationally be inferred
from its existence. In other words, it is perceived, with increasing clearness,
that the assertive capacity of a statement differs in no essential particular from
its independently relevant function. In either case, whatever satisfies the
reason is given probative weight, more especially in accordance with what it
has been thought convenient to designate the Kelevancy of Spontaneity and
the Kelevancy of Regularity.
The present practice seems an illustration of the same tendency. Market
value is a fact. 13 The witness may derive his knowledge as to it from the
information furnished by others. 14 It may even be learned from an examina-
tion of stock or market reports, 15 price lists, 16 trade circulars, 17 sales of
similar property 18 and the like. 19 In short, a witness may testify to the
value of property if his knowledge of it has been derived through the general
avenues of information to which the ordinary business man resorts, to inform
himself as to values for the proper conduct of his affairs. Where the market
report, trade circular or the like has been credited by the person against
whom it is offered, an additional administrative reason for receiving it is
furnished. 20
As an administrative matter, the court may properly require to be satisfied,
before admitting the stock report or similar publications, that the methods
of their compilation are such as to entitle them to credit. 21
745. [Market Value] ; Individual. 22 Still, even in this connection, the
12. 3 Chamberlayne, Evidence, 2099c. ft seq. ; St. Louis Southwestern Ry. Co. v.
13. Franklin v. Krum, 171 111. 378, 49 X Arkansas & T Grain Co. (Tex. Civ. App.
E. 513 (1898). 1906), 95 S. W. 656
14. Thatcher v. Kaucher, 2 Colo. 698 19. Whitney v. Thacher, 117 Mass. 52.3
(1875) ; Cleveland, etc., R. Co. v. Patton, 203 (1875) (prices current) : Hoxsie v. Empire
111. 376, 67 X. E 804 (1903) (horses). Lumber Co., 41 Minn. 548, 42 X. W. 476
15. Rodee v. Detroit F. & M. Ins. Co., 74 (1889).
Hun (X. Y.) 146. 26 N. Y. Suppl. 242 (1893) ; 20. Western Wool Commission Co. v. Hart
Whelan v Lynch, 60 X. Y. 469, 19 Am. Rep. (Tex. Sup. 1892). 20 S. W. 131.
202 (1875). 21. Whelan v. Lynch, 60 X. Y. 474 (1875) ;
16. Willard v. Mellor, 19 Colo. 534 (1894) Fairley v. Smith. S7 X. C 367 (1882).
(daily price-circulars excluded) : Marris v. 22. 3 Chamberlayne, Evidence, 2099d.
Columbian Iron-Works, etc., Co., 76 Md 354, 23. Long v. Douthitt. 142 Ky. 427, 134 S.
25 Atl. 417, 17 L. R. A. 851 (1892) : Harri- W. 453 (1911) ; Cobb v. Whitsett, 51 Mo. App.
eon v. Glover, 72 X. Y 454 (1878) (price 146 (1892) : Hess v. Missouri Pac. R. Co., 40
lists admissible); Cliquot v. U. S., 3 Wall. Mo. App. 202 (1890): Hoskins v. Missouri
(U. S.) 114, 18 L. ed. 116 (1865). Pac. R. Co, 19 Mo. App. 315 (1885); Kent
17. Tyson v. Chestnut, 118 Ala. 3S7. 24 So. v. Miltenberger, 15 Mo. App. 480 (1884) (ed-
73 (1898) (postal cards excluded) : Smith v. itor of a newspaper) ; Flynn v. Wokl, 10 Mo.
Xorth Carolina R. Co.. 68 X. C. 107 (1873). App. 582 (1881).
18. 3 Chamborlayne, Evidence, 2175o
581 MABKET VALUE. 74<>, 747
hearsay rule is far from being without influence. The unsworn statement of uu
identified individual in its assertive capacity, i.e., as evidence of the facts an-
nounced, is still rejected. 23 Only to hearsay in its blended or composite 24 form
has administrative indulgence been accorded. 25 !No particular credit, is placed
in any single voice of the blended whole. 26 To do so would be illegal under
the hearsay rule. 27
Printed hearsay. Printed hearsay is no more admissible in this con-
nection than it would be in any other. Should a market report in a newspaper
be the work of an identified firm of stock-brokers, the quotations will be rejected
as individual hearsay. 28
746. [Market Value]; Qualifications. 29 The indispensable and sufficient
qualification of a witness who undertakes to testify as to the fact of market
value is that he should know what it is. 30 Proof on this point must be
affirmatively 31 made to the satisfaction of the court unless the circumstances
disclosed in the case may warrant the presiding judge in assuming provisionally,
as an administrative matter, that such qualifications exist. 32 A skilled wit-
ness acquainted with a particular market may give his conclusion from observa-
tion 33 or his judgment as an expert as to what is the fair value of a given
commodity in that market. It is probably in this sense that market value
has been said to be a matter of opinion. 34 The probative force of the reasoning
will be determined, in large measure, by the intimacy of the acquaintance with
the market in question which the witness shows. 35
747. [Market Value] ; The proper Market. 36 The market in which value
is to be proved is, as a rule, easily determined. If property possesses a market
24. 873 et seq. 28. National Bank of C. v. New Bedford,
25. Harrison v. Glover, 72 N. Y. 451 175 Mass. 57, 56 N. E. 288 ( 1900) .
(1878); Ferris v. Sutcliff. 1 Alb. L. J. (N. 29. 3 Chamberlayne, Evidence, 2099e. f
Y.) 238 (1870); Lush v. Druse, 4 Wend. 30. Missouri, K. & T. Ry. Co of Texas v.
(N. Y.) 313 (1830); Cliquot v. U. S.. 3 Moss (Tex. Civ. App. 1911), 135 S. W. 626
Wall. (U. S.) 114, 18 L. ed. 116 (1865). (cattle).
26. " It [a list of sales and prices collected 31. Russell v. Hayden, 40 Minn. 88, 41 N.
from the stock exchange] is all hearsay: but W. 456 (1889): Missouri, etc., R. Co. v.
it is the only evidence we can have: it is Truskett, 186 U. S. 480, 22 S. Ct. 943, 46
the only evidence we have of the price of L. ed. 1259 (1902)
sales of any description. I do not receive it 32. Cleveland, etc., R. Co. v Patton, 203
as the precise thing, but as what is in the 111. 376, 67 N. E. 804 (1903^ (owner of
ordinary transactions of mankind received as horses) : McLennan v. Minneapolis, etc., Ele-
proper information: and I suppose there is vator Co.. 57 Minn. 317. 59 N. W. 628 i 1894)
hardly a gentleman living who would not act (wheat).
on this paper." De Berengers Trial. Gur- 33. Hoskins v. Missouri Pac. R. Co.. 19 Mo.
ney's Rep. 188 (1814), per Ellenborough, App. 315 ( 1S85) .
L. C. J. 34. Brockman Commission Co. v. Aaron
27. Lewis v. Ins. Co.. 10 Gray 511 (1858) -.. (Mo App. 1910). 130 S. W. 116.
Wadley v. Com., 98 Va. 803. 35 8. E. 452 35. Suttle v. Falls, 98 N. C. 393, 4 S. E.
(1900) ; Alfonso v. U. S., 2 Story 426 (1843). 541, 2 Am. St. Rep. 338 (1887).
36. 3 Chamberlayne, Evidence. 2099g.
748 VALUE. 582
value at the place involved in the inquiry, evidence is properly directed to
establishing it at that paint. 37 Should the question arise as to the value of
personal property converted or injured the damages are assessed in relation to
the market value as it existed at the time and place of such conversion or
injury. In a case of a contract for the delivery of goods at a particular market,
damages are to be estimated in accordance with the market value of the
property as it was at the time and place of delivery. Should it be affirmatively
shown 3S that the land or chattels have no market value in the place where
it is to be computed under the rules of substantive law, proof is to be made of
the market value as it exists in the nearest 39 or if a market other than the
nearest is the controlling one, 40 in the latter. Incessant reference is being made
to " fair market value " in connections where, as is understood by every one,
there is, strictly speaking, no market value whatever. To parcels or tracts of
land are to be assigned their just market value by the jury, under the instruc-
tions of the judge. Unique articles of personal property, rare coins, engrav-
ings, paintings and the like, are to be fairly appraised by the jurors at this same
" market value." In legal usage, the phrase is unceasingly employed. 41 What
is meant by it ? Confessedly, there is no actual market for these things.
There are res non-funyibles. The phrase, therefore, is not to be taken
literally. Apparently, what is meant by it is this: The court is leaving to
the jury to say what price would result, under the circumstances of the case,
were the conditions of an ideal market to be applied to the property in question.
The reference is always to the standard established of an entirely fair, fully
attended and absolutely open place of sale.
748. Proof by Estimate; Time of Estimate. 42 Where no relevant 43 market
value can fairly be claimed to exist, the administrative situation is materially
altered. Reliance must, in most cases, be placed upon the inference or estimate
of witnesses applying the standard of money to the subject-matter in hand. 44
The period to which the inference relates may be prior 45 or subsequent 46 to
37. Alabama Iron Works v Hurley, 86 Ala. X W. 456 (1881)) ; Beard v. Kirk, 11 X. H.
217. 5 So 418 11889) 400 (1840).
38. Jones v. St. Louis, etc.. R Co., 53 Ark. 42. 3 Chamberlayne, Evidence, 2099i-
27, 13 S. Vv. 4 Hi, 22 Am. St. Rep. 175 2100
(isiKt). 43. Raridan v. Central Iowa R. Co.. 69
39. This is usually demanded by the pre- lo\va 527, 29 X. W. 599 (1886) (cornstalks) ;
siding judge. Porter v (handler, 27 Minn. P>eard v Kirk. 11 X H. 397 (1840): Erd v.
301, 7 X. W. 142, 38 Am. Rep. 293 (1880) : Chicago, etc., R. Co., 41 Wis. 65 (1876).
McDonald v. I'naka Timber Co., 88 Tenn. 3**, 44. Morris v. Columbian Ironworks, etc.,
12 S \V. 420 i 1889). Co., 76 Md. 354, 25 Atl 417, 17 L. R. A. 851
40. llogan v. Donohue, 49 III App. ^432 (1892).
(1893) ; Aulls v. Young, 98 Mich. 231.' 57 45. Texas, etc., R. Co v. Cella. 42 Ark. 528
X \V. 11!) (1893) ; French v. Piper. 43 X H (1884) ; Johnson v Farmers' F. Ins. Co., 106
439 (1862). Mich 96. 04 X W 5 (1895).
41. Cooper v Randall, 59 111.320 (1371): 46. Paden v. Goldbaum (Cal. 1894), 37
Daly v Kimball Co.. 67 la. 135. 24 X XV 7-">' ; Pac 759 : Doane v. Garretson, 24 Iowa 351
(1885); Russell v Hayden. 40 Minn. 90, 41 (1868); Central Branch Union Pac. R. Co.
583 CHANGE IN VALUE. 749-731
that of the res gestae. A sole limitation imposed in respect to admissibility is
that the court should feel, in view of the nature of the property, 47 the, period
to which the inference attaches is not too remote to be relevant and that, having
in mind the '* state of the case," the judge feels it to be necessary to receive it.
749. Change in Value. 48 Ability to estimate value from observation neces-
sarily implies, where the latter has extended over any considerable period,
the power of declaring the occurrence of any change in value which has ap-
peared during the interval. Adequate acquaintance with the property in ques-
tion is essential. 49 These principles apply to animals, 50 personal property, 01
real estate 52 or to change in value induced by manufacture. 53
750. Relative Value. 54 Even where a witness is ignorant of absolute
value, he may be permitted to state the relative worth in money of two pieces
of property. 55 The same rule applies to land. 50 "A man may know the
effect on the relative value without being able to lix the actual market price.''
751. Administrative Requirements; Necessity. 58 A suitable administrative
necessity for receiving the secondary evidence of an estimate must be shown
to the court if the act of reasoning is to be received. Should it happen that all
the facts can fully be placed before the jury or more satisfactory and convincing
evidence can be submitted to the tribunal 59 the inference will be rejected. On
the contrary, should the constituting phenomena observed or the component
elements of value be such that they cannot fully be placed before the jury, 8t>
or should it appear probable that the latter would have neither the special knowl-
edge nor the acquired and developed mental powers necessary to coordinate
the phenomena or facts presented into a rational estimate, a suitable administra-
tive necessity for receiving the inference of a witness is deemed to have been
established. In the latter case, an adequate necessity may well be deemed to
have arisen for utilizing the services of a skilled observer.' 51 So estimates of
v. Andrews, 37 Kan. 162. 14 Pac. 509 ( 1887) ; 53. Hood v. Maxwell. 1 W. Va. 219 ( 1866) .
Greenfield First Xat. Bank v. Coffin, 162 Mass. 54. 3 Chamherlayne. Evidence. 2101a.
180 38 X. E. 444 (1804). 55. Kronsc-hnable v. Knoblauch, 21 Minn.
47. Where a stock of goods is not likely to 5G t 1874).
change in value, an interval of seven years is 56. Dawson v. Pittsburgh, 159 Pa. St. 317,
not fatal. Johnson v. Farmers' F. Ins. Co., 28 Atl. 171 (1891).
106 Mich 96, 64 X. YV. 5 (1895). 57. Dawson v. Pittsburgh, 159 Pa. St. 317,
48. 3 Chamberlayne, Evidence, 2101. 28 Atl. 171 (1891).
49. Shinier v. Easton R. Co., 205 Pa. St. 58. 3 Chamberlayne, Evidence, :
648. 55 Atl. 769 (1903). 2105.
50. Perine v. Interurban St. R. Co., 43 59. Williams v. Hersey, 17 Kan. li
Misc. iX. Y?) 70, 86 X Y. Suppl. 479 (1904) Sanford v. Shepard, 14 Kan. 228 (1875).
(horse)*; Davis Bros. v. Blue Ridge Ry. Co., 60. Atchison, etc., R. Co. v. Harper, 19 Kan.
81 S C 466 6-' S. E. 856 .(1908) (cattle). 529 (ISTSi; Lines v. Alaska Com. Co. 29
51. Xew York, etc., R. Co. v. Grand Rapids. Wash. 133. 69 Pac. 642 (1902) (value of
etc., R. Co., 116 Ind. 60, 18 X. E. 1S2 i 1888). piano at Xome. Alaska K
52 Ohio, etc., R. Co. v. Taylor, 27 111. 207 61. Pincery v. Cherokee, etc., R. Co.. 78
i 1R69) Iowa 438, 43 X. W. 285 (1889); Phillips v.
752-753 VALUE. 584
the value of similar property or estimates more remote in time will not be re-
ceived .where better estimates are available. In most instances, where the
property is fungible, has a market value, the disputed question is as to what
that market value is. Where the property is not fungible, has no market-value,
the determination of monetary worth must necessarily be one largely of esti-
mate, of reasoning, of irference. After all, however, the ultimate question is,
not as to what is the sum of these elements of value, appraised at a fair separate
worth in money for each ; but to what conclusion does all this mass of evidence
rationally lead the mind of the expert or of the jury regarding the price which
such a piece of property is fairly worth, i.e., as between fair men, the one willing
to sell and the other to purchase the same on its reasonable merits. The more
common the property the more persons will be found qualified to testify con-
cerning it. 02 Land is not fungible 03 so estimates as to its value are alwayi
admissible.
752. [Administrative Requirements] ; Relevancy demanded. 64 That the
estimate of a witness should be received, it is essential that it be rationally
helpful to the jury. It must be, in other words, probatively relevant 65 both
objectively and subjectively considered. This means that the witness must be
qualified. 00
753. [Administrative Requirements; Qualifications of Witness; Adequate
Knowledge]. 67 That an estimate as to value should be received, it must, as
has just been said, be subjectively relevant. In order for it to be so, the
witness must be qualified, in the judgment of the court, 68 to throw light upon
the matter in dispute. In case of an ordinary observer, this is equivalent to
saying that he should be shown to have enjoyed reasonable opportunities for
acquainting himself with the property or acts in question. 69 He must be shown
to the court to have utilized these occasions to advantage. 70 He must, also,
appear to possess the knowledge, experience and mental powers necessary to
enable him to coordinate his observations into an act of reasoning upon which
the jury might rationally rely. 71 It is essential that the witness should be
familiar with the specific property to be appraised 72 as well as with the
MarbleheatL, 148 Mass. 326, 19 X. E. 547 68. The judge should find some real poten-
(1889). tial value in the estimate before admitting it.
62. Jones v. Erie. etc.. R Co., 151 Pa. St. Rea v. Pittsburg & C. R. Co., 229 Pa. 100,
30, 48, 25 Atl. 134, 31 Am. St. Rep. 722, 17 78 Atl. 73 (1910).
L. R. A. 758 (1892). 69. A very v. Xew York Cent., etc., R. Co.,
63. Derby v. Gallup. 5 Minn. 134 (1860). 2 X. Y. Suppl. 101 (1888).
64. 3 Chamberlayne, Evidence. 2100- 70. Pittsburg, V. & C. R. Co. v. Vance, 115
2113. Pa. 332, 8 Atl. 764 (1880).
65. Clark v. Baird, 9 X. Y. 183 (1853). 71. Gallagher v. Kemmerer. 144 Pa. St.
66. Florence v. Calmet (Colo. 1908). 96 Pac. 509, 22 Atl. 970, 27 Am. St. Rep 673 (1891).
183; Whitcomb v. Brant (X. J. Sup. 1908), 72. Crouae v. Holman, 19 Ind. 38 (1862)
68 Atl. 1102. (real estate).
67. 3 Chamberlayne, Evidence, 2114,
2115.
585
CLAIM OF KNOWLEDGE.
754
standard of value by which it is to be measured. Whatever assumptions may
be made by administration, as a provisional matter, regarding the possession
of knowledge as to value by witnesses who offer to give their estimates on the
subject, two requirements must ultimately be satisfied if the evidence is to be
received. (1) The knowledge must be shown to be adequate. 13 1^2) It must
be proved to be actual. 14 The witness may be qualified by his experience as
appraiser. 75 or auctioneer 7tt or broker 77 or as being in charge of real es-
tate,' 1 " 1 and mere residence in a community may be enough. 79 So public officers
charged with the duty of appraising property 8 " like assessors sl or dealers in
property s ~ may be qualified.
754. [Administrative Requirements] ; Claim of Knowledge. 83 Should a
witness assert that he knows the property in question, whether real, 84 or per-
sonal, 85 and is acquainted with its value, judicial administration may well be
warranted for the sake of economizing tirne, sti in holding that such a claim
furnishes a prima facie ability to give a helpful estimate. 8 ' Should the actual
73. Butsch v. Smith (Colo. 1907), 90 Pac
61; Arnd v. Aylesworth (Iowa 1907), 111
X. \V. 407 : Catlin v. Northern Coal & Iron
Co. (Pa. 190!)). 74 Atl. 56. Some foundation
must be laid for the opinion of a witness as
to value by showing that he has had the
means of forming an intelligent opinion, de-
rived, in part, from an adequate knowledge
of the nature and kind of property in con-
troversy. Western Union Telegraph Co. v.
Coyle (Okl. 1909), 104 Pac. 367.
74. Schaaf v. Fries, 77 Mo App. 346
(1898) ; Oregon Pottery Co. v. Kern, 30 Oreg.
328, 47 Pac. 917 (1897): Pennock v. Cres-
cent Pipe Line Co., 170 Pa. St. 372, 32 Atl.
1085 (1895): Michael v. Crescent Pipe Line
Co., 159 Pa St. 99, 28 Atl. 204 (1893):
Gorgas v. Philadelphia, etc., R. Co., 144 Pa.
St. 1, 22 Atl. 715 (1891). Such witnesses
" should affirmatively appear to have actual
personal knowledge of the facts affecting the
subject-matter of the inquiry." Michael v.
Crescent Pipe Line Co., 159 Pa. St. 99. 104,
28 Atl. 204 (1893).
75. Lyman v. Boston City, 164 Mass. 99,
41 X. E. 127 (1895): State v. Sattley, 131
Mo. 464. 33 S. W. 41 (1895).
76. Amory v. Melrose. 162 Mass. 556. 39
N. E. 27ti (1805).
77. Bristol County Sav. Bank v. Keavy, 128
Mass. 298 (1890): Griswold v. Gebbie, 126
Pa. St. 353, 17 Atl. 673. 24 YVkly. Notes Cas.
72. 12 Am. St. Rep. 87<S (1889)
78. That the witness is not in business for
himself, but is a clerk in the office of an-
other, is not conclusive against his compe-
tency Teele v. Boston City, 165 Mass. 88,
42 N. E. 506 (1895).
79. Hewlett v. Saratoga Carlsbad Spring
Co., 84 Hun (N. Y.) 248, 32 N. Y. Suppl. 697
(1895).
Especially in large cities the word " neigh-
borhood " is a relative one. The field which
a witness may take into consideration in
forming an opinion of the selling price of
particular land should be reasonably adja-
cent thereto and embrace real estate of the
same general character. Rea v. Pittsburg &
C. R. Co., 229 Pa. 106, 78 Atl. 73 (1910).
80. Chandler v. J. P. Aqueduct, 125 Mass.
551 (1878); Swan v. Middlesex, 101 Mass.
177 (1869): Fowler v. Middlesex, 6 All. 97
(1863). See also Gayle v. Court of County
Com'rs (Ala. 1908), 46 So. 261: Town of
Ripton v. Town of Brandon, 80 Vt. 234, 67
Atl. 541 (1907).
81. Muskeget Island Club v. Nantucket,
185 Mass. 303, 70 N. E. 61 (1904).
82. Muskeget Island Club v. Nantucket,
185 Mass. 303, 70 N. E. 61 (1904); Allen
v. Chicago & N. W Ry. Co., 145 Wis. 263,
129 N. W. 1004 (1911)'
83. 3 Chamberlayne, Evidence, 2116,
2117.
84. L T nion Elevator Co. v. Kansas City Sub-
urban Belt R. Co. (Mo. Sup. 1896), 33 S. W.
926.
85. State v. Montgomery (S. D. 1903), 97
N. W. 716 (hogs).
86. 304 et seq.
87. Wichita R. Co. v. Kuhn, 38 Kan. 104.
16 Pac. 75 (1887); Browne v. Moore, 32
755-757 VALUE. 586
qualifications of the witness be challenged, they must be established in the
ordinary way. 88
755. [Administrative Requirements] ; Action of appellate Courts. 89 The
action of a trial judge in admitting witnesses as competent to testify on the
question of value will not be revised in an appellate court, so long as reason
has been exercised. IJO Should the court adopted seem not to have been rational,
reversal may properly ensue.
756. [Administrative Requirements] ; Preliminary Statement of Fact. 91 As
a general matter of practice, the presiding judge may well require that one
who proposes to state an estimate of value, either in the form of an inference,
conclusion or judgment, should detail, before doing so, such of the constituent
elements as the basis of his estimate as he reasonably can. 92 This requirement
has been imposed by the court indifferently in the case of real estate, 93 per-
sonal property 94 or services. 95 Where the witness is himself the owner of
the property, it has been suggested that he ought fairly to be permitted to
state, in connection with his preliminary detail, such of the elements of value
presented by his property as one desirous of selling it might properly represent
to a proposed purchaser in order to facilitate the sale. 9 " This preliminary
statement of fact is required from the skilled witness as well as from the
ordinary observer. 97
757. Ordinary Observer; Personal Property; Real Estate and Services. 98
Ordinary observers may accurately estimate the value of lands and chattels with
which men in general are acquainted. The qualifications of the witness to
state an inference helpful to the jury must be proved to the satisfaction of the
presiding judge or the circumstances be such that the existence of these qualifi-
cations may reasonably be assumed by judicial administration. No other wit-
Mich 254 (1875): St. Louis, etc., R. Co. v. 40 Xebr 1, 58 N. W. 597 (1894); Rodee v.
St. Louis Union Stock Yards Co, 120 Mo. Detroit F. & M Ins. Co., 74 Hun (N. Y.)
541, 25 S. W 399 (1894) : Smith v. Hill, 22 146. 26 N. Y. Suppl. 242 (1893).
Barb. (X. Y ) 656 (1H.')6) ; Moore v. Chicago, "A description of the property, its char-
etc , R. Co., 78 Wis 120, 47 X. W. 273 (1800K acter and qualities," has been the measure
88. Missouri Par R. Co. v. Coon. 15 Xeb. of preliminary statement required. Whipple
232, 18 X. W. 62 (1883). v. Walpole, 10 N. H. 130 (1839).
89 3 Chamberlayne. Evidence, 2117. 95. Storms v Lemon, 7 Ind App. 435, 34
90. Himmer v. Wilson (Colo. 1908). 93 N. E. 644 (1893) ; McPeters v. Ray, 85 X. C.
Pac 1110: Phillips v. Marblehead, 148 Mass. 462 (1881).
326 19 X E 547 (1889). 96. Little Rock Junction R. Co. v Wood-
91. 3 Chamberlayne, Evidence, 2118- ruff, 49 Ark. 381, 5 S. W 792, 4 Am. St Rep.
2124. 51 (1887).
92. Chicago Sanitary Dist. v. Loughran, 97. Chicago, etc., R. Co. v. Calumet Stock
160111 362, 43 X E 359 (1806). Farm. 96 111. Anp. 337 (1901) [affirmed,
93. CJordon v. Kinks County El R. Co., 23 194 111. 9. 61 X. E. 1095, 88 Am. St Rep. 68
N Y. App. Div. 51, 48 X. Y. Suppl 382 (1901)] (trotting horse) .
(189") 98. 3 Chamberlayne, Evidence, 2125-
94. Western Home Ins. Co. v. Richardson, 2139.
587
OWNEB AS WITNESS.
758
ness will be allowed to testify on the subject." Stringency of qualification is,
however, greatly modified in favor of one who proposes to state an estimate
regarding the value of a familiar article. 1 In such cases, no technical ex-
perience or special knowledge is required for the competency of the witness. 2
This is the same as to say that an ordinary observer of common articles of
personal property may state his estimate as to their value. 3 This rule applies
to domestic articles in common use, 4 farm equipment, 5 mercantile stock in
trade, ordinary land, 7 services 8 whether agricultural, 9 domestic 10 or mer-
cantile 11 and nursing. 12 Where the services are of a technical nature the
province of the skilled observer is more nearly reached. 13
758. Owner as Witness. 14 In most instances, the oivner is regarded as
qualified to state an estimate as to the value of his property, 15 especially where
the latter is of an every day nature, i.e.. employed in common use. It may
usually be assumed that no one's acquaintance with the value carrying con-
stituents of his laud or movables is greater than the owners. This relation to
the subject-matter of the inquiry may be fairly regarded by administration as
creating, in and of itself, a species of special knowledge. No other showing
of special skill or experience is required for admissibility, although establishing
the fact of their possession increases probative weight. 16 The owner of prop-
99. Teerpenning v. Corn Exch. Ins. Co., 43
N. Y. 279 (1871) (stock of goods).
1. Tuttle v. Cone, 108 Iowa 468, 79 N. W.
267 (1899) (bicycles).
2. Filson v. Territory, 11 Okla. 351. 67 Pac.
473 (1901).
3. Rawles v. James, 49 Ala 183 (1873):
Johnston v. Farmers' F. Ins. Co., 106 Mich.
96, T>4 X. W. 5 (1895).
4. Omaha Auction, etc., Co. v. Rogers, 35
Nebr. 61, 52 X. W. 826 (1892).
5. Minneapolis Threshing M. Co. v. Mc-
Donald, 10 X. D. 408, 87 X. W. 993 (1901)
(threshing machine) .
6. Vandercook v. O'Connor, 172 Mass. 301,
52 X. E. 444 (1899) (bottlers' supplies).
7. In re Rochester, 40 Hun 588 (1886);
Clark v. Baird, 9 X. Y. 183 (1853). See also
Bedell v. Long Island R. Co., 44 X. Y. 367.
4 Am. Rep. 688 ( 1871 ) . Witnesses who know
nothing as to the amount, quality or quantity
of standing timber cut from land will not be
allowed to give their estimates as to'its value,
although they may know the market price of
the land itself. Park v. Xorthport Smelting
& Refining Co. (Wash. 1907), 92 Pac 442.
8. Cleveland, C., C. & St L. Ry. Co. v.
Hadley, 40 Ind. App 731. 82 X. E. 1025
(1907) (elocutionary ability): Kent Furni-
ture Mfg. Co. v. Ransom, 46 Mich. 416, 9 N
W. 454 (1881) ; Bagley v. Carthage, etc, R
Co., 25 X. Y. App. Div. 475, 49 N. Y. Suppl.
718 (1898).
9. Loticks v. R. Co., 31 Minn 534. 18 N. W.
651 (1884): Harris v. Smith, 71 X. H. 330,
52 Atl. 854 (1902).
10. Ruttle v. Foss (Mich. 1910), 125 N.
W. 790, 17 Detroit Leg. X. 258; Fowler v.
Fowler, 111 >Iich. 676, 70 X. W. 336 (1897) ;
Miller v. Richardson, 88 Hun (X. Y.) 49, 34
X. Y. Suppl. 506 (1895).
11. Howard v. McCabe (Xeb. 1907). 112
X. W 305; Chapman v. Tiffany, 70 X. H.
249, 47 Atl. 603 (1900) (storage).
12. Wahl v. Shoulders, 14 Ind. App. 665,
43 X. E. 458 (1896); Allison v. Parkinson.
108 la. 154, 78 X. W. 845 (1899); Reynolds
v. Robinson, 64 X. Y. 589 (1876).
13. Little Rock, etc.. R. Co. v. Bruce. 55
Ark. 65, 17 S. W. 363 (1891); Eagle, etc.,
Mfg. Co. v. Browne, 58 Ga. 240 (1877) (mill
engineer ) .
14. 3 Chamberlayne, Evidence, 2140-
2150.
15. Little Rock, etc , R. Co v. Bruce, 55
Ark. 65, 17 S. W. 363 (1891).
16. Haan v. Metropolitan St. R. Co., 34
Misc. (N. Y.) 523, 69 X. Y. Suppl. 888
(1901).
759 VALUE. 588
erty, as well as other witnesses, may detail to the jury the constituting facts
upon which he bases his estimate of value. This he may be permitted by the
judge to do not only for the purpose of reinforcing the credibility of his own
statement, but also for that of enlightening the court and jury as to his oppor-
tunities for observation and his mental power of coordinating what he has
seen. 17 Where the owner is not shown to have any familiarity with the value
of a certain class of articles, such as jewelry, 18 his inference as to it will be
rejected. 19 These principles apply to farmers, 20 householders, 21 merchants, 22
real estate owners, 23 or a claimant for services rendered. 24
759. Skilled Observer as Witness. 25 The estimate of value may require
the services of a skilled witness. The value of the property in question may
be so far related to a particular profession, trade or calling, as to make the
estimate regarding it a technical one. The personal property, for example,
may not be fungible, have a market value. A rare gem or a painting by an old
master has a value known accurately to the connoiseur alone and to him only
within limits. The real estate may be adapted only to a particular use, and
that an uncommon one. Its intrinsic value must be estimated, and the ele-
ments may be of an unusual nature. The services to be appraised may be
those of a doctor or of a lawyer. Such cases are typical of a very large number
of similar instances. This is the field of the skilled witness. The witness
must be shown to be acquainted with the property 26 and qualified by experi-
ence 27 to give an estimate. Thus one specially qualified by skill and ex-
perience may testify as to the value of personal property, 28 real estate, 29 crops, 30
trees, 31 or of similar property, 32 or as to the value of services 33 in building
17. Little Rock Junction R Co. v. Wood- 27. Buffum v. New York, etc., R. Co., 4
ruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. R. I. 221 (1856).
51 (1887); Galveston, H. & S. A. Ry. Co. v. 28. Werten v. K. B. Koosa & Co. (Ala.
Giles (Tex Civ. App. 1910), 126 S. W. 282 1910) , 53 So. 98 ( damaged dry goods ); Lewis
(clothing). v. State (Ala. 1909), 51 So. 308 (diamonds) ;
18. Gregory v. Fichtner, 14 X. Y. Suppl. Echols v. State (Ala. 1906), 41 So. 298
891, 27 Abb. X. Cas. (X. Y.) 86. 21 X. Y. (stolen goods) ; St. Louis & S. F. Ry. Co. v.
Civ. Proc. 1 [reversing 13 X. Y. Suppl. 593 Ewing (Tex. Civ. App. 1910), 126 S. W. 625
( 1891 ) ]. (typewriters damaged by water) .
19. Armstrong v. Smith, 44 Barb. (X. Y.) 29. Bearss v. Copley, 10 X. Y. 93 (1854).
120 (1865). Altering grade. Raising the grade of a
20. Metropolitan St. Ry. Co. v. Walsh, 197 street may have an injurious effect upon the
Mo. 392, 94 S. W. 860 (1906). value of land. Blair v. Charleston, 43 W.
21. Frederick v. Sault. 19 Ind App 604, Va. 62, 26 S. E. 341. 64 Am. St. Rep. 837,
49 X. E. 909 (1898) (piano). 35 L. R. A. 852 (1896).
22. Union Pac. R. Co. v. Lucas, 136 Fed. 30. Colorado Farm & Live Stock Co. v.
374. 69 C. C. A. 218 (1905). York (Colo 1906), 88 Pac. 181 (melons);
23. Shea v. Hudson, 165 Mass. 43, 42 X. E. Anderson v. Chicago, B. & Q. Ry. Co. (Xeb.
114 (1895). 1909), 120 X. W. 1114.
24. Mercer v. Vose, 67 X Y. 56. 58 (1876K 31. Williams v. Hathaway, 21 P>. T. 566. 45
25.3 Chamberlayne, Evidence, 2151- Atl. 578 (1900); Cochran v. Casey (Tex.
2170 Civ. App. 1910), 128 S. W. 1145 (size of
26. Fves v Quinn, 7 Misc. (X. Y. ) 155, 27 chinquapin trees). See also Mabry v. Ran-
N. Y. Suppl. 251 (1894) (renting).
589
EXPERT.
760
operations, 34 commercial employments 35 or professional services. 36 The
skilled witness may go further and state his judgment as to what might be the
value of real 37 or personal 3S property in case of certain contingencies.
760. Skilled Witness testifying as an Expert.- The judgments of ex-
perts with regard to the value of property are received by judicial administra-
tion cautiously and under fixed conditions. 40 The administrative advantage
obviously is that, in this way, one who has never seen the property may be
able to apply to it what is perhaps a very accurate and discriminating standard
of value. The primary requirement is that some forensic necessity should
be shown for invoking the judgment of the expert. In any case, the judge
presiding at a trial will insist that the judgment as to value of* an expert be
a well defined exercise of the reasoning faculty upon ascertained and identified
facts. Conjecture and speculation are to be excluded. The judgment must
be something more than a guess. 41 Where an article of personal property
possesses exceptional worth as in case of pedigreed horses, 42 crops, 43 real
estate, 44 or technical services 40 the judgment of the expert is frequently em-
ployed.
dolph (Cal. App. 1908;, 94 Pac. 403 (orange
grove ) .
32. Morrison v. Watson, 101 N. C. 332, 7 S.
E. 795, 1 L. R. A. 833 (1882).
33. Towle v. Sherer, 70 Minn. 312, 73 X.
W 180 (18971 (cost of a house): Ingham
Lumber Co. v. Ingersoll & Co (Ark. 1910),
125 S. W. 139 (sawing lumber) ; Floore v.
J. T. Burgher & Co. (Tex. Civ. App. 1910),
128 S. W. 1152.
34. O'Keefe v. St. Francis' Church, 59
Conn. 551, 22 Atl. 325 I 1890).
35. Matter of Benton, 71 X. Y. App. Div.
522, 75 X. Y. Suppl. 859 ( 1902)
36. McDonald v. Dodge County, 41 Xebr.
905, 60 X. W. 366 ilS94).
37. Vandine v. Burpee, 13 Mete. (Mass.)
288, 46 Am. Dec. 733 i 1S47) (brick-kiln);
Brennan v. Corsicana Cotton-Oil Co. (Tex.
Civ. App. 1898), 44 S. \V 588: Gauntlett v.
Whitworth, 2 C. & K. 720. 01 E. C'. L. 720
(1849).
38. Joy v. Hopkins, 5 Denio (X. Y.) 84
(1847) I cow) : Houston, etc.. R. Co v. Shir-
ley. 89 Tex. 95, 31 S. W. 291 '1895) i rail-
road bonds ) .
39. 3 Chamberlayne, Evidence, 2171-
217 If.
40. A skilled witness, so testifying, need
not have seen the property. Ross v.
Schrieves. 199 Mass. 401. 85 X. E. 468 < 1908^.
41. Comesky v. Postal Tel. Cable Co., 41 X.
Y. App. Div. 245. 58 N. Y. Suppl. 467 (1899)
( damage by erection of telegraph poles ) .
42. Southern Ry. Co. in Kentucky T.
Graddy (Ky. 1908), 33 Ky. Law Rep. 183,
109 S. W. 881 (thoroughbred colts) ; Miller v.
Smith, 112 Mass. 470 (1873).
43. Foster v. Ward, 75 Ind. 594 (1881)
(farmer); Lawton v. Chase, 108 Mass. 238
(1871) (logs) ; International, etc., R. Co. v.
Searight, 8 Tex. Civ. App. 593, 28 S. W. 39
(1894) (grass).
44. Fox v. Chicago, etc., Rapid Transit R.
Co., 68 111. App. 417 (1896) (taking for
railroad) ; St. Louis, etc., R. Co. v. Fowler,
113 Mo. 458, 20 S. W. 1069 (1893) (rail-
road) : Hunter v. Manhattan R. Co., 141 N.
Y. 281, 36 N. E. 400 (1894) (elevated rail-
road) ; Gerber v. Metropolitan El. R. Co., 3
Misc. (X. Y.) 427, 23 N. Y. Suppl. 166
(1893).
45. Holiday v. Watson. 6 Ky. L. Rep. 590
(1885) ; Hialey v. Hialey's Estate, 157 Mich.
45. 1-21 X. W. 465, 16 Detroit Leg. X. 244
(1909) (trimmer's wages): Thomas v. Caul-
kett, 57 Midi 392, 24 X. W. 154. 58 Am. Rep.
369 ( 1 885 ) . Expert upon prices and values,
see note, Bender ed., 144 X'. Y. 9.
Practical Suggestions for Putting in Evi-
dence of Expert. There is only one sure
wav to examine one's own expert. First
qualify him by asking him to state his expe-
rience in the subject on which he is to tes-
761, 762
VALUE.
590
761. [Skilled Witness Testifying as an Expert] ; Probative Force of the Judg-
ment; How Tested. 4 " The proponent may increase the value of the expert's
testimony by drawing from him his reasons, 47 and the basis of his judgment
may also be elicited in cross-examination. 4 * Inconsistent statements made by
the witness at other times may be brought out 49 and the scope of the cross-
examination is entirely within the discretion of the presiding judge. 50
762. Probative Force of the Estimate of Value; Function of the Jury. 51
Questions of fact are for the jury. 52 Incidentally, they must determine the
credibility, the belief-carrying quality, of witnesses and their statements. To
this administrative truism, the probative force of estimates as to value furnishes
no exception. Whether the reasoning be in the form of the inference or
conclusion of an ordinary or skilled 53 observer or as represented in the judg-
ment of the skilled witness testifying as an expert, its probative force is to be
determined by the jury. 54 The latter are to consider and weigh them, in con-
nection with all other facts in the case. 55 The jury may, as usual in the event
of conflict in the testimony, prefer one witness or set of witnesses to another
as guides to their judgment. 56 That is entirely for them to decide, within the
bounds of reason. If a view of the property has been given to the jury, the
results of it may properly be regarded as part of the evidence in the case. 57
tify. Second, ask him if he has examined
the property in question, when, and how thor-
oughly. Third, if he has formed an opinion
as to its value. Fourth, what that opinion
is. Fifth, what are the reasons for his opin-
ion. If this order of questions is followed,
by the the time the fifth question is reached
the expert is then ready to make a little
speech on the subject explaining the whole
situation and, if he is clever, so strengthening
himself that he cannot be attacked with suc-
cess on cross-examination If any other pro-
cedure is adopted counsel lays himself open
to all sorts of objections by clever opposing
counsel which will embarrass the witness and
confuse the jury and weaken the effect of
anything the expert may finally be allowed
to say.
46. 3 Chamberlayne, Evidence. 2171g.
47. Cram v. Chicago, 94 111 App. 199
(1900).
48. Questions as to sales of adjacent prop-
erty are always admissible. Snouffer v. Chi-
cago, etc., R. Co, 105 Iowa 681, 75 N. \V.
501 (1898): Brown v Worcester, 13 Gray
(Mass.) 31 (1859) (opposite side of the
street) -. Eno v. Manhattan R. Co., 21 N. Y.
App. Div. 548, 48 N. Y. Suppl. 516 (1897)
(rental value).
49. Phillips v. Marblehead, 148 Mass. 326,
19 N. E 547 (1889) ; Krider v. Philadelphia,
180 Pa. St. 78, 36 Atl. 405 (1897) (valued
land differently as an assessor).
50. Roche v. Baldwin, 135 Cal. 522. 65 Pac.
459, 67 Pac. 903 ( 1902) ; Cassidy v. Com., 173
Mass. 533, 54 N. E. 249 (1899) (land in an-
other city ) .
51. 3 Chamberlayne, Evidence, 2172-
2175.
52. Conjecture will be excluded. Thus,
where the manager of mines stated that he
did not know what they were worth, it was
error to permit him to testify that the per-
sons interested appraised the property at a
certain sum. Thornburg v. Doolittle ( Iowa
1910), 125 N. W. 1003.
53. Linforth v. San Francisco Gas & Elec-
tric Co. (Cal. 1909), 103 Pac. 320.
54. Johnson v. Freeport, etc.. R. Co., Ill
111. 413 (1884); Aldrich v. Grand Rapids
Cycle Co., 61 Minn. 531, 63 X. W. 1115
(1895); In re Manhattan Terminal of the
New York and Brooklyn Bridge. 120 N. Y.
Suppl. 465 (1909).
55. Johnson v. Freeport, etc., R. Co., Ill
111. 413 (1884).
56. Jacksonville, etc., R. Co. v. Caldwell,
21 111. 75 (1859).
57. Terre Haute, etc., R. Co. v. Flora. 29
Tnd. App. 442, 64 N. E. 648 (1902) ; Chicago,
591
FACTORS CONTROLLING EXPERT.
763
So far as the matter is one of common knowledge, 5 * the jury may employ their
general experience as men of affairs in dealing with the estimates of witnesses
as to the value of property, 59 whether drawn from observation or deduced
from assumed facts. In any case, the jury may rationally accord probative
force to the estimate of a witness in proportion to the subjective relevancy of
his statement, the amount uu and freshness 61 of his knowledge and his free-
dom from any motive to misrepresent which could fairly be deemed con-
trolling. 02 The jury are not necessarily obliged to follow the estimate of a
witness simply because he is uncontradicted. 63 Such inferences are not con-
clusive.' 54 The jury may be allowed in matters of common knowledge to make
findings of value based on their own knowledge without evidence 6D but where
the question is technical the jury should not be allowed to tind in disregard
of the evidence of skilled witnesses and any such finding may be set aside. 66
763. Constituents for the Expert's Judgment; Factors Controlling it. 67 The
judgment of the expert may be controlled or aided by auction sales G8 or by
the cost of property either actual 69 or based on the cost of reproduction 70
figuring also the depreciation.' 1 The expert may also consider the various
etc., R Co. v Drake. 46 Kan .',68, 26 Pae.
1039 (1S9M; Matter of Guilford. 85 X V
App. Div. 207. 83 X Y. Suppl. 312 (1903):
Wead v. St. Johnsbury, etc.. R. Co.. 66 Vt.
420, 29 Atl. 631 ( 1894) ; Shoemaker v. U. S.,
147 U. S. 282, 13 S. Ct. 361, 37 L. ed. 170
(1893).
58. 345 et seq.
59. Johnson v Freeport, etc., R. Co., Ill
111. 413 (1884).
60. Lafayette v. Xagle, 113 Ind. 425, 15
X. E. 1 (1888) ; Lee v. Pindle. 12 Gill & J.
(Md.) 288 (1842) ; Springfield, etc.. R. Co. v.
Calkins. 90 Mo. 538, 3 S. \V. 82 ( 1886).
- 61. Atty.-Gen. v. Cross, 3 Meriv. 524, 17
Rev Rep 121 (1817)
62. Atty.-Gen. v Cross, 3 Meriv. 524, 17
Rev Rep 121 (18171.
This is more important than a considera-
tion of the particular class of persons to
which the observer belongs. Blizzard v. Ap-
plegate, 61 Ind. 368 (1878).
63. Princeton Town v. Gienske, 93 Ind. 102
(1884): Aldrich v. Grand Rapids Cycle Co.,
61 Minn 531. 63 X. W. 1115 (1895).
64. Johnson v. Chicago, etc . R. Co., 37
Minn. 510. 35 X W. 438 (1887).
65. Stevens v City of Minneapolis, 42 Minn.
136, 43 X. W. 842 (1889).
66. Wood v. Barker. 49 Mich 295. 22 Am.
Law Reg. (N. S) 323 (1882). See also
Turnbull v Richardson, 69 Minn. 400, 37 X T .
W. 499 (1888).
67. 3 Chamberlayne, Evidence, 2175a.
68. Thornton v. Campton, 18 N. H. 20
(1845): Huntington v. Attrill, 118 N. Y.
365, 23 X*. E. 544 (1890) : Mayberry v. Lilly
Mill Co. (Tenn. 1905), 85 S. W. 40*1 (corn)".
69. Involuntary sales. Where the sale
has been a forced one, especially when accom-
panied by other circumstances calculated to
defeat the full and fair competition by bid-
ders, the prices realized may constitute no
adequate criterion of value and be, there-
fore, rejected as irrelevant for that purpose.
Rickards v. Bemis (Tex. Civ. App. 1903), 78
S W. 239 (execution sale). Still, the price
realized at a sheriff's sale of goods has teen
received, though by no means conclusive be-
tween the parties, as some evidence of the
age, condition, etc., of the articles sold.
Corey v. Penney (Ala. 1910), 51 So. 624. See
Goodman v. Baumann, 43 Misc. Rep. 83, 86
N. Y. Suppl. 287 (1904).
70. Brook? v.. Hazen, 3 G. Greene (Iowa)
553 (1852) : Pierce v. Boston City. 164 Mass.
92, 41 X. E. 227 (1895).
71. Where cost is relied on to show value,
depreciation by use and natural causes may
be proved. Utz v. Orient Ins. Co., 139 Mo.
App. 552. 123 S W. 538 (1909). Factors to
be considered in estimating the value of a
public service plant, see Murray v. Public Util-
ities Comm.. 27 Idaho 603. 150 Pac. 47. L.
R. A. 1916 F 756; Oshkosh Waterworks Co. v.
Railroad Comm., 161 Wis. 122, 152 X T . W 859,
VALUE.
592
elements of value of the property 72 or the financial condition of a company
issuing securities. 73 Even offers to buy or sell property are sometimes con-
sidered if made in good faith and accompanied by a present ability to carry
out the oifer. 74 The physical condition of the property " >:> and its rental
value 7C> may also be considered. The price paid for the property although not
conclusive 77 is always some evidence of value 7S whether of real estate 7<J or
personal property 80 and even sales of similar property may be used both as
to personal 81 and real 82 property. The charge usually made for similar
L. R. A. 1916 F 592 (1915). The value of a
water right may be shown by the cost of
acquiring it, but other elements must also be
considered in estimating its market value.
Murray v. Public Utilities Com., 27 Idaho
603, 150 Pac. 47, L. R. A. 1916 F 756 ( 1015).
See also Oshkosh Waterworks Co. v. Railroad
Comm., 161 Wis. 122, 152 N. W. 859, L. R.
A. 1916 F 592 (1915).
72. The '' market value " of property is the
price which it will bring when it is offered
for sale by one who desires, but is not obliged,
to sell it, and is bought by one who is under
no necessity of having it. In estimating its
value all the capabilities of the property, and
all uses to which it may be applied, are to be
considered. Seaboard Air Line Ry. v. Chamb-
lin, 108 Va. 42, 60 S. E. 727 (1908).
73. Halper v. Wolff, 82 Conn. 552, 74 Atl.
890 (1909) ; Green-Grieb Sherman Co. v. John
C. Quinlen Co, 148 III. App. 1 (1909); Diel
v. Kellogg (Mich. 1910), 128 N. W. 420, 17
Detroit Leg. N. 891.
74. Muller v. Southern Pac. Branch R. Co.,
83 Cal. 240, 23 Pac. 205 (1890); Faust v.
Hosford, 119 Iowa 97, 93 N. W. 58 (1903) ;
Cottrell v. Rogers, 99 Tenn. 488, 42 S. W.
445 (1897) ; Fox v. Baltimore, etc., R. Co., 34
W. Va 466, 12 S. E. 757 (1890). Authority
is, however, to be found to the opposite effect.
Southern Ry Co. v. Parnell, 37 So. 925 (1904)
(two years before) ; Watson v. Milwaukee,
etc., R. Co., 57 Wis. 332, 15 N. W. 468 ( 1883) ;
Sharpe v U S.. 191 U. S. 341, 24 R. Ct. 114,
48 L. ed 211 (1903).
75. McAvoy v. Wright, 137 Mass. 207
(1884) : McLennan v. Minneapolis, etc., Ele-
vator Co., 57 Minn. 317, 59 N. W. 628 (1894).
76. Senglaup v. Acker Process Co., 105 N.
Y. Ruppl. 470, 121 App Div. 49 (1007).
Evidence of the value of an article is admis-
sible as having some bearing on the value
of its use. Carey Coal Co. v. Bebee Concrete
Co., 88 Kan. 515, 129 Pac. 191, 44 L. R. A.
(N. S.) 499 (1913).
77. Miller v. Bryden, 34 Mo. App. 602
(1889). Where market yalue can be shown,
price is not material. Chicago, R. I. & G Ry.
Co. v. Rogers (Tex. Civ. App. 1910), 129 S.
W 7 . 1155.
78. Blanchard v. New Jersey Steamboat
Co., 59 N. Y. 292 (1874); Gulf, etc., R. Co.
v. Lowe, 2 Tex App. Civ. Cas 648 (1885).
79. West Skokie Drainage Dist. v. Dawson,
243 111. 175, 90 N. E. 377 ( 1909) ; In re Man-
hattan Terminal of the New York and Brook-
lyn Bridge, 120 N. Y. Suppl. 465 (1909);
American States Security Co. v. Milwaukee
Northern Ry. Co. (Wis. 1909), 120 N. W.
844.
Forced sales. Prices realized at forced
sales possess but slight evidentiary weight.
West Skokie Drainage Dist. v. Dawson, 243
111. 175, 90 N. E. 377 (1909) (foreclosure
proceedings) ; W 7 . T. Rickards & Co. v. J. H.
Bemis & Co. (Tex. Civ. App. 1903), 78 S. W.
239.
80. Jelalian v. New York, N. H. & H. R.
Co., 119 X. Y. Suppl. 136, 134 App. Div. 381
(1909) (clothing, oriental rug) ; De Groat v.
Fulton F. Ins. Co., 4 Rob. 504' ( 1867 ) .
81. Aken v. Clark (Iowa, 1909), 123 N. W.
381 (cattle) ; Dean v. Van Nostrand, 101 N.
Y. 621, 4 N. E. 134 (1886); Kean v. Lan-
drum, 72 S. C. 556, 52 S. E. 421 (1905)
(timber on adjacent land). See also James
H. Rice Co. v. Penn. Plate Glass Co., 117 111.
App. 356 (1904).
82. Paine v. Boston, 4 Allen (Mass.) 168
(1862) ; Galway v. Metropolitan El. R. Co., 13
N. Y. Suppl. 47 (1890); Belding v. Archer,
131 N. C. 2S7, 42 S. E. 800 (1902). Evi-
dence may be excluded of the sale of neigh-
boring property where the sale was practically
forced as the owners had failed to make
payments due and a foreclosure suit was
then pending. Lewisburg & N. R. Co. v.
Hinds, 134 Tenn. 293. 193 S. W. 985. L R. A.
1916 E 420 (1916). The value of property
may be shown by sales but the price at
593
FACTOKS
EXPEKT.
763
services is however so uncertain a test as seldom to be of probative quality. 83
The expert may always state the specific uses to which property may be put. 84
which it is estimated in an exchange is not
satisfactory evidence. Epp v. Hinton, 91
Kan. 513, 138 Pac. 576, L. R. A. 1*J15 A 07o
(11114). Evidence of the sale of neighboring
property may be excluded when the sale took
place two years before and extensive improve-
ments had taken place in the meanwhile, in
the immediate neighborhood. Lewisburg &
N. R. Co. v. Hinds, 134 Tenn. 293, 183 S. W.
985, L. R. A. 1916 E 420 (1916). An offer
of sale may well be excluded where it ap-
pears that when it was made the property
was dead and a park and boulevard had not
been built where these improvements greatly
enhanced the value of the land. Lewisburg &
>,. U. Co. v. Hinds, 134 Tenn. 293, 163 S. W.
985, L. R. A. 1916 E 420 (1916).
83. McKnight v. Detroit & M. Ry. Co.
(Mich. 1904), 97 X. W. 772, 10 Detroit Leg.
X. 777.
84. Russell v. St. Paul, etc., R. Co., 33
Minn. 210, 22 N. W. 379 (1885) ; Ohio Valley
R., etc., Co. v. Kerth, 30 Ind. 3,14, 30 N. E.
298 (1891); Forsyth v. Doolittle, 120 U. S.
73, 7 S. Ct. 408, 30 L. ed. 586 (1877) ; Chan-
dler v. Geraty, 10 S. C. 304 (1878).
CHAPTER XXXI.
HANDWRITING.
/
Proof by direct evidence, 764.
Proof by secondary evidence; circumstantial, 765.
1 'tract eristics of handwriting, 766.
. . .lomena of documents, 767.
who are qualified as witnesses, 768.
age of alterations, 769.
inference from observation, 770.
Ordinary observer; qualifications; seeing person ivrite, 771.
adoption in course of business, 772.
special experience, 773.
Skilled observer; qualifications required, 774.
Comparison of hands, 775.
qualifications must be affirmatively proved, 776.
requirements, 777.
English rule, 778.
American rule, 779.
witness to comparison rejected, 780.
witness to comparison accepted, 781.
statutory modifications, 782.
proof of standard, 783.
proof, 784.
testing on cross-examination, 785.
proof in criminal cases, 786.
standardizing document, 787.
Probative weight of the inference, 788.
function of the court, 789.
inference a reasoned one, 790.
tests furnished by cross-examination, 791.
764. Proof by Direct Evidence. 1 The genuineness of handwriting, includ-
ing under this broad term marks, figures, 2 or signs, may be proven as a fact by
the direct evidence of persons who saw it made. Nothing could well be more
satisfactory than this. :{ " The general rule seems to be, that the best evidence
1. 3 Chamberlayne, Evidence, 2177. v. Benham, 4 Hill (N. Y.) 129, 40 Am. Dec.
2. Stone v. Hubbard, 7 Cush. (Mass.) ofl5 271 (1843).
(1851) ; Kux v. Central Michigan Sav. Bank, 3. The most obvious proof of handwriting
93 Mich. 511, 53 N. W. 828 (1892) ; Sheldon is the testimony of a witness who saw the
594
595 SECONDARY EVIDENCE. 765-767
of handwriting is a witness who actually saw the party write it." 4 Evidence
such as this presents no peculiarity for the consideration of judicial ad-
ministration. Transaction witnesses are, however, comparatively rare. Sel-
dom does it happen in practice that the actual writing of a disputed specimen
of chirography has been witnessed. The primary evidence being thus absent,
administration is obliged to rely upon proof of facts of a secondary grade.
The latter may be one of two kinds. (1) Circumstantial evidence, (2) In-
ferences of competent observers testifying from the resemblance of a disputed
writing to a mental standard created by means which the law deems adequate.
The use of these species of secondary evidence will be considered in the order
indicated.
765. Proof by Secondary Evidence; Circumstantial. 5 Circumstantial evi-
dence of handwriting may be used 6 and may be extrinsic as from the fact that
one was seen to enter a room containing writing materials and left leaving a
document behind him, or it may be intrinsic as from the paper, ink, spelling,'
and handwriting 8 of the document itself. Where other evidence fails letters
may sometimes be authenticated by their contents as where letters sent by an
illiterate were shown to relate to the account in question and they referred to
checks and corresponding checks were produced. 9
766. [Proof by Secondary Evidence] ; Characteristics of Handwriting. 10
In a broad sense, the entire reasoning as to the genuineness of handwriting
from resemblance is a study of the characteristics displayed by the writer.
The probative force rests upon moral uniformity, 11 the proposition of experi-
ence that a person who has done a given thing at one time will do it at another.
767. [Proof by secondary Evidence] ; Phenomena of Documents. 12 In de-
paper or signature actually written. In the kins, 89 Wash. 168, 154 Pac. 155, L. R. A. 1916
absence of such proof thebest evidence is the D 635 (1916). As to genuineness of hand-
information of witnesses acquainted with the writing. See note, Bender Ed., 82 X. Y. Book,
supposed writer, and who from seeing him 42.
write have acquired a knowledge of his hand- 9. Fayette Liquor Co. v. Jones, 75 W. Va.
writing. Tarnofker v. Grissler, 108 X. Y. 119, 83 S. E. 726.
Suppl. 696 (1908). 10. 3 Chamberlayne, Evidence, 2179.
4. Redford v. Peggy, 6 Rand. (Va.) 316, 11. ''The theory upon which these expert
328 (1828). per Carr, ,T. Nee also State v. witnesses are permitted to testify is that
Witherspoon, 231 Mo. 706, 133 S. W. 323 handwriting is always in some degree the
(1910). reflex of the nervous organization of the
5. 3 Chamberlayne, Evidence. 2178. writer, which, independently of his will and
6. Shaffer v. U. S., 24 App. D. C. 417 unconsciously, causes him to stamp his indi-
(1904). viduality in his writin?. I am convinced that
7. Brookes v. Tichborne, 5 Exch. 929 this theory is sound." Gordon's Case. 50 X.
(1850), per Parke, B. It is evidence of J. Eq. 397, 422. 26 Atl. 268 (1893). per Mc-
forgery that the signature of the will of an Gill. Ch. Attempts at disguise in handwrit-
uneducated man not given to much writing is ing seldom eradicate those peculiarities which
exactly the same as that of an authenticated indicate the real author. MeGarry v. Healey,
copy of it. even though the will antedates the 78 Conn. 365. 62 Atl. 671 (1905).
authenticated signature. Connolly v. Hop- 12. 3 Chamberlayne, Evidence, 2180.
I 768 HANDWRITING. 596
termining the identity of the writer of a disputed document, much aid may
occasionally be gained by an inspection of the paper itself, attention being
directed not primarily to the thought conveyed but to the structure or other
peculiarity of the vehicle employed. Embedded in the paper or on its surface
may be many phenomena of documents, genuine or disputed. These indica-
tions may be relevant upon issues other than that of genuineness, the identity
of a writer. As to this alone it is, however, proposed to consider the subject
at the present time. The work of the jury on this point may be assisted by
the alert observation and trained reasoning of skilled witnesses. 13 The latter
may point out the physical indications shown by a document and the inferences
fairly to be deduced from them.
Preliminary Detail of Fact. Sound judicial administration may well re-
quire that the witness, as a preliminary to giving his inference, should detail
to the jury with such particularity as he reasonably can, the constituent facts
upon which he bases it 14 and the lines of reasoning by which it is reach-
ed.
Typewriting. The characteristics of work done on various typewriters may
be examined and pointed out to the court when relevant. 15
768. [Proof by secondary Evidence] ; Who are qualified as Witnesses. A
witness qualified by experience, commonly superimposed upon natural endow-
ment, is the only person whom the court will probably regard as helpful. The
matters covered by the testimony must be those of special skill or knowledge not
shared by ordinary men. 17 Otherwise, no reason is suggested for invading
the province of the jury. In this connection, persons acquainted with rhe
handling, 18 inspection 19 or examination of writings will usually be found to
possess the required experience. Special knowledge as of a bank officer of
13. Withee v. Rowe, 45 Me. 571 (1858) ; ment having or possessing a defect or peculi-
Demerritt v. Randall, 116 Mass. 331 (1874); arity the identity of the instrument may
Dubois v. Baker. 30 X. Y. 355 ( 1864) ; Calkins be established by proving the identity of the
v. State, 14 Ohio St. 222 (1863). defects or peculiarities which it impresses on
14. May v. Dorsett. 30 Ga 116 (1860). different papers. People v. Storrs. 207 N.
15. Where certain defects in a typewrit- Y. 147, 100 X. E. 730, 45 L. R. A. (N. S.)
ten sheet were shown an expert mathematic- 860 (1912)
ian may not be asked what the chances are 16. 3 Chamberlayne. Evidence. 2181
of a recurrence of all these defects in another 17. It is error to permit a witness not
machine. The court seems to lay down the shown to possess expert knowledge on the
proposition that mathematical calculations of subject to give his opinion that a copy of a
probability are not admissible in evidence. letter is on stationery different from that in
People v. Risley. 214 N. Y. 75. 108 N. E 200 use at a certain hotel. State v Denny I N*
Where forgery of a will is charged and it D. 1008), 117 X W 860
becomes vital to know on which typewriter 18. Glover v. Gentry. 104 Ala. 222. 16 So
it is written specimens of the work done 38 (1803).
on the instrument with which the will is 19. Hadcock v. O'Ronrke. 6 X Y. Suppl.
alleged to be written are admissible for com- 540 (1880) (order of additions to paper).
parison only in the same way that where an Duhois v. Baker, 30 X. Y 7 . 355 (1864) (bank
impression is made on paper, wood, leather cashier).
or any other plastic material by an instru-
597
SECONDAKY EVIDENCE.
i 769,770
bank notes is always a qualification. 20 Such a duly qualified witness may
testify as to the meaning of abbreviations 21 or figures 22 or illegible portions 23
of a writing provided that he testifies to something beyond the apparent knowl-
edge of the jury. 24
769. [Proof by secondary Evidence] ; Age or Alterations. 25 A witness
whom the trial judge regards as qualified may state from the appearances of
documents submitted to his inspection his inference regarding their age, 2ti or
alterations. 27 The jury may make their own deductions from prominent
features of a writing as which of two words was writeii over the other 28 but
where necessary the skilled witness may testify as to the handwriting, 29 inks, 30
pens 31 and even the peculiarities of typewritten matter. 32
770. [Proof by secondary Evidence] ; Inference from Observation. 33
Handwriting is a matter of inference from observation. 34 There is here no
field for the expert as such as the skilled witness testifies almost invariably
from personal observation and not from facts established by others or in
response to hypothetical questions. His opinions need not be given with
certainty 35 but a mere claim of a witness to familiarity with a certain hand-
writing may be enough to qualify him 36 and only a skilled witness may give
his opinion. 37 The original of the document should always be produced in
20. Hadcock v. O'Rourke, 6 N. Y. Suppl.
549 (1889) (order of additions to paper).
21. Sheldon v. Benham, 4 Hill (N. Y.) 129,
40 Am. Dec. 271 (1843).
22. Stone v. Hubbard, 7 Cush. (Mass.) 595
(1851) (date).
23. Stone v Hubbard, 7 Cush. (Mass.) 595
(1851) (decipher date); Kux v. Central
Michigan Sav. Bank, 93 Mich. 511, 53 N. W.
828 (1892) (bank pass book); New York
Mut. L. Ins. Co. v. Baker, 10 Tex. Civ. App.
515, 21 S. W. 1072 (1895) (date). See also
People v. King, 125 Cal. 369, 58 Pac. 19
(1899).
24. Collins v. Crocker, 15 111. App. 107
(1884) (cancellation); Dresler v. Hard. 57
N. Y. Super. Ct. 192, 6 X. Y. Suppl. 500
(1889); Bridgman v. Corey, 62 Vt. 1, 20
Atl. 273 (1889) ; Beach v. O'Riley, 14 W. Va.
55 (1878).
25. 3 Chamberlayne, Evidence, 2182-
2185.
26. Eisfeld v. Dill, 71 Iowa 442, 32 X. W.
420 (1887).
27 Rass v. Sebastian, 160 111 602. 43 X. E
708 (1S96) [affirming 57 Til App. 417]:
Hawkins v Grimes, 14 B. Mon. (Ky.) 257
(1852); Dubois v. Baker. 40 Barb. (X. Y.)
558 (1864). Should the witness be one
skilled in the phenomena of documents, his
opinion on the subject may properly be re-
ceived. State v Owens, 73 Mo. 441 (1881) ;
State v. Tompkins. 71 Mo. 617 (1880) ; Wag-
ner v. Jacoby, 26 Mo. 531 (1858).
28. Morse v. Blanchard, 117 Mich. 37, 75
X. W. 93 (1898)
29. Shaffer v. Clark, 90 Pa. 94 (1879).
30. Glover v. Gentry, 104 Ala. 222, 16 So.
38 (1893); (practical experience sufficient);
Porell v. Cavanaugh, 69 X. H. 364, 41 Atl
860 (1898): Ellingwood v. Bragg. 52 X. H.
488 (1872): Dubois v Baker, 40 Barb. (X.
Y.) 556 (1S64): Com. v. Pioso, 18 Lane L.
Pvev. 27 (1899).
31. Com. v. Webster, 5 Cush (Mass.) 295,
52 Am. Dec. 711 (1850).
32. Huber Mfg. Co. v. Claudel (Kan. 1905),
80 Pac. 960.
33. 3 Chamberlayne, Evidence, 21S6-
2198.
34. Washington v. State (Ala. 1905), 39
So 38S.
35. Stevens v. Seibold, 5 X. Y. St. 258
(1886).
36. Brown v. McBride, 129 Ga. 92, 58 S. E.
702 il907).
37. Forgery may be shown either by the
evidence of the person whose name is claimed
771 HANDWRITING. ' 598
court, when it is available but if not the handwriting can be proved by the
evidence of one who has had an opportunity of seeing the original and com-
paring it with a specimen conceded to be genuine. 38 The witness may be re-
quired to state the facts on which he bases his opinion. 39 The basis of the
opinion of the witness must be in all cases a mental standard created in the
mind of the witness either by seeing the person write or by comparison of
recognized examples of his handwriting. 40 In all cases, the skill of the witness
must be commensurate with the subtlety of the inference which he is asked to
draw. 41 Evidently, the various qualifications of the witness who proposes to
testify from a mental standard, (1) seeing the person write, (2) having
corresponded in course of business, (3) acquired familiarity by experience
and, (4) comparison by juxtaposition, present an increasing proportion of
this element of pure reasoning. His qualifications may be of various kinds
as from instruction in handwriting 42 or from practical experience in examina-
tion of hands. 43 Specimens of penmenship will be preferred when made ante
litem mot am. 44
771. Ordinary Observer; Qualifications; Seeing Person write. 45 An early
qualification, procedural in its nature, 46 enables an ordinary 47 observer to
testify to his inference 48 if he has formed any 49 as to the genuineness of a
disputed specimen of A's handwriting if he has ever seen him write 50 under
such 'circumstances as to be able to gain some knowledge as to his style of
handwriting. 51
to be forged or by a skilled witness. Royce may often attach to the trustworthiness of
v. Gazan, 76 Ga. 79 (1885); Abat v. Riou, 9 any qualiri'-ntion "ninod l>v a \vitutv-s t'rmn
Mart. (La.) 465, 466 (1821) ; Smith v. Val- having seen A write at a time after the date
entine, 19 Minn. 452, 454 (1873) ; McCully v. of the disputed signature. Keith v. Lothrop,
Malcom, 9 Humph. 187, 192 (1848); Osborne 10 Cush. (Mass.), 453 (1852).
v. State, 9 Yerg. 488 (1836). 45. 3 Chamberlayne, Evidence, 2199-
38. Hammond v. Wolf. 78 Iowa 227. 2207.
39. State v. Ryno, ( Kan. 348, 74 Pac. 46. A discredited rule. It is not surpris-
1114 i 1904) ; Keith v. Lothrop, 10 Cush. 457 ing, in view of the growth of rational ad-
(1852). ministration, to find judges questioning, the
40. Allen v. State, 3 Humph. 368 (1842). value of a rule so archaic and blindly pro-
41. Com. v. Xefus, 135 Mass. 533, 534 cedural. Wilson v. Van Leer, 127 Pa. 337,
(1883). See also Powers v. McKenzie, 90 17 Atl. 1097 (1889): Doe v Suckermore, 5
Tenn. 167, 16 S. W. 559 (1891). A. & E. 720 (1836). per Williams, J.
Qualifications should be substantial. 47. Moon v. Crowder, 72 Ala. 79 (1882):
Other witnesses not so qualified will be re- Kendall v. Collier, 97 Ky. 446, 30 S. W. 1002,
jected. Winch v. Norman, 65 Iowa 186, 21 17 Ky. L. Rep. 337 (1895); Williams v.
N. W. 511 (1884). Deen, 5 Tex. Civ. App. 575, 24 S. W. 536
42. Buchanan v. Buckler, 8 Ky. L. Rep. 617 (1893).
(1887) : Heffernan v. O'Neill. 1 Nebr. (Un- 48. Bruyn v. Russell, 52 Hun. 17, 4 N. Y.
off.) 363.. 96 N. W. 244 ( 1901 ) Suppl. 784 (1889) .
43. Fonrery v. Cambridge City First Nat. 49. Putnam v. Wadley, 40 111. 346 (1806).
Bank, 66 fnd. 123 (1879) (bank manager). 50. Nagle v. Schmadt, 239 111. 595, 88 N. E.
44. Pate v. People. 8 HI. fi44 (1846) : Ter- 178 (1909).
ritorv v. O'Hare. 1 X D. 30. 44 N. W. 1003 51. Rowt's Adm'x v. Kile's Adm'r, 1 Leigh
(1890) ; Reese v Reese, 90 P a . St. 89. 35 Am. 225 (1829).
Rep. 634 (1879). Some degree of suspicion
599 ORDINARY OBSERVER. 772
Thai the qualification is procedural, i.e., a matter of substantive law relating
to procedure, appears froin the fact that the creation in the mind of the wit-
ness of a satisfactory mental standard, to which the genuineness of the writing
can be referred, need not be affirmatively shown. The witness is not required
to have seen A write on more than one occasion 52 and it will be enough that
he believes the signature in question to be his, 53 but the witness must have
seen the writing done ante litem motam. 54 The witness may refresh his
memory by inspection of other writings 55 but may consider the writing only
and not base his opinion on the moral or other qualities of the writer. 5t{ The
witness must have been near enough to see what was written 5T and must have
himself been able to read. 58 A sound modern limitation on this rule is that
the witness must be able to show a reasonably satisfactory acquaintance with the
handwriting in dispute. 09 The witness cannot state the undisclosed author
of a disputed document. 60 The weight of this species of evidence depends on
the frequency for observaton of the witness and his skill. 61
772. [Ordinary Observer] ; Adoption in Course of Business." 2 Even from a
standpoint of technical procedure, as established later, it was not absolutely
necessary that a witness as to the genuineness of handwriting should ever have
seen the person in question actually write. He may also testify that he has
received letters which purport to be written by A in the regular course of
correspondence 63 acted on as A's writing 64 and approved by A 65 ante litem
motam So where a letter is sent to A and it appears that he acted upon it
by a letter in reply this latter letter will be used as a standardizing document. 67
52. Com. v. Xefus, 135 Mass. 533 (1883). N. E. 1066 (1896) ; Magie v. Osborn, 1 Rob.
53. Fash v. Blake, 38 111. 363 (1865). (N. Y.) 689 (1863); Allen v. State, 3
Cross-examination. Questions on cross- Humphr. (Tenn.), 367 (1842).
examination have been permitted tending to 60. Neall v. U. S., 118 Fed. 699, 56 C. C.
develop the extent of the confidence which A. 31 (1902).
the witness- has in the correctness of his own 61. Rogers v. Ritter, 12 Wall. (U. S.) 317,
estimate. Thus, he may be asked whether he 20 L. ed. 417 (1870).
would act upon a certain note as genuine were 62. 3 Chamberlayne, Evidence. 2208.
the instrument presented to him in an ordi- 63. State v. Goldstein. 65 Atl. 1119 (1907).
nary business transaction. Holmes v. Gold- 64. " The mere receipt of letters purporting
smith. 147 U. S. 150, 163, 13 Sup. 288, 37 L. to be from a person never seen, and with
ed. 118 (1893). whom no subsequent relations existed which
54. Keith v. Lothrop. 10 Tush. 457 (1852) : were based on them as genuine, has no value
Ratliff v. Ratliff, 131 X. C. 425. 42 S. E. 887 as means of knowledge. Where there is no
(1902) : Porter v. Wilson, 13 Pa. 646 (1850). direct knowledge of handwriting, there must
55. Bedford v. Peggy, 6 Rand. (Va.) 316 be something which assures the recipient of
(1828). the letters in a responsible way of their gen-
56. Daoosta v. Pym. Peake X P. 144 uineness." Pinkham v. Cockell. 77 Mich. 272,
U7H7). 43 X. W. 921 (1889), per Campbell. J.
57. Brigham v. Peters, 1 Gray (Mass ) 65. Coffey's Case. 4 City Hall Rec. (X*. Y.)
139 (1854). 52 (1819) (paid checks drawn by the persons
58. People v. Corey, 148 X". Y. 476, 42 in question).
X. F.. 1066 (1895K 66. Hynes v. McDermott. 82 X. Y. 41. 37
59. Xelms v. State. 91 Ala. 97. 9lSouth. 193 Am. Rep. 538 (1880). See also Territory
(1890) ; People v. Corey, 148 N. Y. 476, 42 v. O'Hare, 1 X. D. 30, 44 N. W. 1003 (1890).
773,774 HANDWRITING. 600
Even clerks in an office which received A's letters in the regular course of
business are competent to testify to it. 08
773. [Ordinary Observer; Qualifications]; Special Experience. " <J Leaving
the procedural qualiiications of seeing a person write and adoption in the
course of business, one breathes a more rationally stimulating atmosphere.
Quite in accordance with the methods of modern judicial administration, the
broad rule is announced, in case of an ordinary observer, that any person who
can be affirmatively shown, to the satisfaction of the trial court, to have acquired
a mental standard as to A's handwriting, 70 to such an extent as will enable him
to give the jury an inference likely to be helpful to them may testify on an
issue as to handwriting. Xo limitation is imposed as to the precise method
by which the requisite mental certainty is acquired. In other words, a witness
who has sufficient knowledge of the handwriting of another may give his
opinion as to the genuineness of a disputed specimen. 71 Such a witness may
point out by comparison the similarities between the authentic and the disputed
specimens 72 but cannot give his opinion directly from comparison of hands. 73
So one familiar with ancient document, 74 from the proper custody 75 or with
signatures on official documents 76 ante litem motam 77 or tellers in a bank deal-
ing with checks " 8 may testify to the genuineness of the signature.
774. Skilled Observer; Qualifications required. 79 Handwriting may well
67. Violet v. Rose, 39 Nebr. 660, 58 N. W. 71. State v. Witherspoon, 231 Mo. 706, 133
216 (1894). S. W. 323 (1910).
68. District of Columbia. Tyler v. Mutual 72. Martin v. Knight (N. C. 1908), 61
D. M. Co., 17 D. C. App. 85, 93 (1900). S. E. 447.
" The knowledge may have been acquired by 73. Griffin v. Working Woman's Home
the witness having seen letters or other docu- Ass'n (Ala. 1907), 44 So. 605; Ware v. Burch,
ments professing to be the handwriting of (Ala. 1906), 42 So. 562.
the party, and having afterwards communi- 74. Jackson v. Brooks, 8 Wend. 431, 15
cated personally with the party upon the con- Wend. 112 (1832) (deeds); R. v. Barber,
tents of those letters or documents, or hav- 1 C. & K. 436 (1844).
ing otherwise acted upon them by written 75. Tuttle v. Rainey, 98 N. C. 514, 4 S. E.
answers producing further correspondence or 475 (1887) (an accompanying photograph),
acquiescence by the party in some matter to 76. Sill v. Reese, 47 Cal. 294 (1874) ; Rog-
which they relate, or by the witness transact- ers v. Ritter, 12 Wall. (U. S. ) 317, 20 L. ed.
ing with the party some business to which 417 (1870).
they relate, or by any other mode of com- Maps, plans, etc. One familiar, as a sur-
munication between the party and the witness veyor, with all the maps and plans on record
which in the ordinary course of the transac- in a public office may testify to the genuine-
tions of life induces a reasonable presumption ness of a signature which he has frequently
that the letters or documents were the hand- seen on these papers. Hamilton v. S-~iith, 74
writing of the party." Doe v. Suckermore, Conn. 374, 50 Atl. 884 (1901).
5 A. & E. 727 (1836), per Patteson, J. 77. Goodyear v. Vosburgh, 63 Barb. 154
69. 3 Chamberlayne, Evidence, 2209- (1872).
2213. 78. State v. Tutt, 2 Bailey, 44, 21 Am. Dec.
70. Ppottiswood v. Weir, 80 Cal. 448, 22 508 (1830) (bank president): Brooks v.
Pac. 289 (1889); Slaymaker v. Wilson, 1 State, 57 Tex. Cr. R. 251, 122 S. W. 386
Penr. 4 W. (Pa.) 216 (1829). (1909).
79. 3 Chamberlayne, Evidence, 2214.
601 COMPARISON OF HAXDS. 775, 776
be a matter of special knowledge. Xatural endowments enriched by skill and
added powers of coordination, may well produce a witness capable of acquiring
and holding a clear and definite mental standard of handwriting. This he
may do. to an extent impossible to the ordinary observer. Undoubtedly, the
trained witness is capable, to an exceptional extent, of rendering assistance to
the jury, and through them to the cause of justice, in the matter of hand-
writing. Where the inference as to resemblance is a technical one, some ade-
quate qualification must be shown. 80 The qualifications of the expert are de-
termined as a preliminary matter by the judge 81 either on the voir dire or on
the cross-examination.
775. " Comparison of Hands." 82 The difficulty which technical procedure
experienced in securing to judicial administration the benefit of the skilled
observer as to handwriting was obvious. Seldom would it be found to happen
that an observer sufficiently skilful in the matter to make his inference helpful
to the jury would either have seen the person in question write or have received
business communications from him under conditions which would make them
available as standardizing documents. It would even be highly improbable
that the skilled witness should have acquired from any source an antecedent
familiarity with the penmanship of a particular writer. The difficulty was
obviated by letting the witness examine specimens of A's handwriting proved
by others or admitted to be genuine and upon a juxtaposition of the genuine
with the disputed writing known as *' a comparison of hands " the witness was
allowed to give his opinion. The term " comparison of hands " in early
times had a broader significance than this and meant all evidence of handwriting
except where the witness sees the document written. 83 Popular opposition to
this species of evidence was engendered in England through its use by the
notorious Judge Jefferies in the judicial murder of Colonel Sidney in 1683 84
and it was excluded after the Revolution of 1688 and was also banned in the
Colonies. Yet reason won in the end and " comparison by handwriting " is
now firmly established.
776. ["Comparison of Hands"]; Qualifications must be affirmatively
proved. 1 " 5 Unless an administrative assumption as to qualification may rea-
sonably be made as a preliminary matter, the proponent of the inference of a
skilled observer must affirmatively establish, to the satisfaction of the presiding
80. In re Thomas' Estate, loo Cal. 488. 101 82. 3 Chamberlayne, Evidence, 2214a.
Pac. 708 (1909) -. In re Lord's Will (Me. 83. Doe v. Suckermore. 5 A. & E. 703, 730.
190!)), 75 Atl. 286; In re Burbank's Will, IS.', 7 L. J. Q. B. 33, 2 N. & P. 16, W. W. &
X Y 559. 77 X. E. 1183 (1906); Berkley v. D. 405, 31 E. C. L. 791 (1836).
Maurer, 41 Pa. Super. Ct. 171 I 1909). 84. Algernon Sidney's Trial, 9 How. St. Tr.
81. Forgey v Bank, 66 Ind. 125 (1879). 851.864 (1683).
Expert testimony as to handwriting. See 85. 3 Chamberlayne, Evidence, 2215-
note. Bender Ed., 127 X Y. 242. Proof of 2220.
handwriting expert. See note. Bender Ed.,
127 X. Y. 242.
HANDWRITING. 602
judge, that the proposed ivitness is capable of giving an estimate reasonably
helpful to the jury. The proponent must fairly show, as he would be re-
quired to do in case of other observers, that the trained or, so-called, " expert "
witness has had reasonable opportunities for observation and possesses the
mental powers necessary to coordinate the phenomena in such a way as to
advance the search for truth. An unskilled witness will, therefore, necessarily
be rejected in case of " comparison of hands." 80 Qualifications may be based
on special technical study 8T or instruction in the art 88 or on practical ex-
perience 89 as in clerical positions 90 and his intelligence and opportunities
for observation may be shown. 91 Even the fact that the witness claims to
have adequate knowledge on the subject may be allowed to weigh with the
court to a prima facie extent. 92
777. [" Comparison of Hands "] ; Requirements. 93 Apparently, l< compari-
son of hands " or, as it may be called in its more restricted modern meaning,
comparison by juxtaposition, 94 was at all times a simple and valuable method
of eliciting the opinion of the skilled witness. In modern times, this method
of proving handwriting is received by the practically unanimous action of every
English speaking jurisdiction. " Comparison of hands '' at the present day
implies- juxtaposition, placing side by side authentic or standardizing docu-
ments with that in dispute, for use by one who has, up to that time, acquired
no mental standard on the subject. 95 The phrase refers, in other words, to a
particular method of creating the mental standard. From resemblance to this,
the skilled witness respecting handwriting anuoTinces his inference or estimate
as to whether the disputed writing is authentic. The witness is in all cases an
observer and not an expert as the term is used in this work.
86. Strother v Lucas, 6 Pet 766 (1832). 94. Comparison by juxtaposition defined.
87. Forgey v. Cambridge City First Nat. " Comparison of handwriting " has been de ;
Bank, 66 Ind. 123 (1879). fined as "a comparison by the juxtaposition
88. Buchanan v. Buckler, 8 Ky. L. Rep 617 of two writings, in order, by such comparison,
(1887); Heffernan v. O'Neill, 1 Nebr. (Un- to ascertain whether both were written by
off.) 363. 96 X. \V. 244 (1901). the same person. A method of proof resorted
89. Lyon v. Lj-man, 9 Conn. 55 (1837) to where the genuineness of a written docu-
i cashier). ment is disputed; it consists in comparing
90. Clerk of Court. State v David, 131 the handwriting of the disputed paper with
Alo 380, 33 S. VV. 28 ( 1895) ; Yates v. Yates, that of another instrument which is proved or
76 X. C 142 (1877). admitted to be in the writing of the party
91. Hyde v. \\oolfolk, 1 Iowa 159 (1855). sought to be charged, in order to infer, from
Having seen the person write may not be their identity or similarity in this respect,
sufficient qualification in this connection that they are the work of the same hand "
IVople v. Collins, 57 X. Y. App Div 2.i~, 6S Black Law Diet. See also Burdick v Hunt,
X Y. Suppl. 151, 15 X Y. Cr. 305 (1901). 43 Ind 381, 386 (1873) : Woodman v Dana,
92. State v. DeO rod, 113 X. C. 688. 18 S. E. 52 Me. 9, 14 (I860): Travis v. Brown, 43
r.()7 (18931. Comparison to prove hand- Pa. St. 9, 12, 82 Am. Dec. 540 (1862); Com.
writing. See note. Bender Ed., 129 X. Y v. Smith, 6 Serg. & R. (Pa ) 568. 571 (1819);
352: 148 X. Y. 476, 506. Hanley v. dandy, 28 Tex. 211, 91 Am Dec 315
93. 3 Chamberlayne, Evidence, 2221- (1866).
2224. 95. Rowt's Adm'x v. Kiles, Adm'r. I Leigh
(Va.) 222 (1829).
603 COMPARISON OF HANDS. 778,771)
778. ["Comparison of Hands"]; English Rule. 90 Prior to the statute of
1854, it was well established in the common law courts of Eugiand during
the first half of the nineteenth century that comparison by juxtaposition could
not be received. The jury were permitted to compare with the disputed writ-
ing documents already properly in evidence for other purposes 97 upon the some-
what naive theory that so much, at least, could not well be prevented. 9 * But
even authentic writings, properly veritied by proof or admission, could not be
introduced into evidence or used by the skilled witness for the purpose of
enabling the latter to testify from resemblance " or the jury to make their
comparison. 1 Some opposition to such a view, which clearly prevented the
cause of justice from receiving the aid of well-recognized scientific skill in an
important branch of litigation, was not entirely lacking. 2 But the more liberal
view could scarcely be said to have become firmly established. 3 Final relief w r as
obtained only by the passage of the statute of 1854, 4 which permitted compari-
son of a disputed writing with any writing proved to the satisfaction of the
judge to be genuine. It is not necessary under this statute that the standard-
izing document be itself relevant to the case. 5
779. ["Comparison of Hands"; American Rule]. 6 Even without the aid
of an enabling statute. American courts have conceded exceptional privileges
to both court and jury in the use of ;< comparison of hands." Genuine docu-
ments already in the case for some other purpose might freely be compared by
judge or jury with the disputed writing, for the purpose of determining the
identity of the writer. 7 The practice on this point, therefore, is substantially
the same in the United States as in England. Writings which have no rele-
vancy to any issue in the case cannot, it is said, be introduced into evidence
for the purpose of allowing the court and jury to institute comparisons with
a disputed specimen of handwriting. 8 Certain courts, disregarding minor
96. 3 Chamberlayne, Evidence, 2225- 3. Even Lord Kenyon, however, was as-
2228. sumed to have recanted in other cases decided
97. Cobbett v. Kilminster, 4 F. & F. 490 by him. Carey v. Pitt, Peake, Add. Cas. 131
note (1865) ; Doe v. Wilson, 10 Moore P. C. (1797) ; Stanger v. Searle. 1 Esp. 14 (1793).
502. 14 Eng. Reprint 581 (1855). 4. Stat. 17 & 18 Viet., chap. 125, 27
98. "The real ground is that comparison (1854).
in such a ease is unavoidable. . . . Xo hu- 5. Birch v. Ridgway. 1 Falc. 4 F. 270
man power can prevent the jury from forming I 1858). See also Roupell v. Haws, 3 F. & F.
some opinion, . . . and consequently when the 784 ( 1863) ; Cresswell v. Jackson, 4 F. A F.
mind of the jury must be so employed, it is I, $ I 1864) : Cresswell v. Jackson, 2 F. A
better for the Court to enter into the consid- F. 24 (1860).
eration." Doe v. Newton, 1 Xev & P 1 6. 3 Chamberlayne, Evidence. 2229-
i 1S36) , per Denman, L. C. J. 2235.
99. R. v. Shepherd. 1 Cox Cr 237 (1845K 7. Rogers v. Tyley. 144 111. 652, 32 X. E.
per Erie. J. ; Fitzvralter Peerage Case, 10 Cl. 393 (1892).
& F. 193 (1843). 8. White Sewing Mach. Co. T. Gordon, 124
1. Hughes v. Rogers, 10 L. J. Exch. 238, 8 Ind. 495, 24 N. E. 1053, 19 Am. St. Rep. 109
M. & W. 123 (1841) (1890).
2. R. v. Cator, 4 Esp. 117 (1802).
780 , HANDWRITING. 604
distinctions, have laid down the broad rule that documents otherwise irrelevant
may be introduced into evidence for the use of the court or jury in forming a
standard of comparison should the genuineness of the standardizing specimens
be proved or conceded. 9
The danger of presenting to the jury collaterial issues to confuse them has
been a strong argument against the receipt of such documents but they are
always admitted where admitted by the party to be genuine 10 or where the
objection is waived. 11 ISpecial rules on the subject prevail in various states. 12
780. [" Comparison of Hands"]; Witness to Comparison rejected. 13 In the
absence of statutory regulations, many American states declined to allow a
skilled witness to testify as to his inference or conclusion regarding the authen-
ticity of a handwriting from its resemblance to a mental standard previously
or contemporaneously created in his mind by the examination of genuine docu-
ments. 14 That the authorship of a forgery cannot be established ill this way
is the conclusion which has been reached in several cases. 15 There are, how-
ever, a large number of decisions which, either directly or by inference, sustain
the contrary view. 16
Prominent among the anticipated evils of this species of evidence is the fear
of raising collateral issues to confuse the jury 17 but even in States which reject
this evidence it may be received where the danger of collateral issues is elimi-
nated by a concession that the standardizing document is genuine 18 or the
opponent is estopped to deny its genuineness. 19
Like other evidence of a secondary character, evidence by " comparison of
hands " has been received to corroborate other evidence even where its proba-
9. Costelo v. Crowell, 139 Mass. 588, 2 X. E. him. This would introduce many collateral
698 (1895). issues into the case but it seems that such
10. Dietz v. Grand Rapids Fourth Nat. testing of the witness should be allowed
Bank, 69 Mich 287, 37 X. W. 220 (1888). within proper limits. Fourth National Bank
11. Moon v. Crowder, 72 Ala. 79 (1882) ; v. McArthur, 168 N. C. 48, 84 S. E. 39. One
People v. Gale, 50 Mich. 237, 15 N. W. 99 may qualify as an expert on the handwriting
(1883). of a lost letter who has been in the banking
12. Hockey's Estate, 155 Pa. 453. 456, 26 business for about fourteen years and who
All. 656 (1893) : Weaver v. Whilden, 33 S. C. had never seen the party write and had
190, 11 S. E. 086 (1890). never seen any of his handwriting except the
13. 3 Chamberlayne, Evidence, 2236- alleged letter and had never seen the plaintiff
2239. write and was not acquainted with his sig-
14. Rockey's Estate, 155 Pa. St. 453, 26 nature at the time he received a letter from
Atl. 656 (1893). him. It is sufficient if he is shown his
15. Powers v. McKenzie, 90 Tenn. 179, 16 admitted handwriting and can then say by
S. W. 559 (1890). comparison that the letter was the handwrit-
16. Tower v. Whip, 53 W. Va. 158, 43 S. ing of the party. Cochran v. Stein. 1 18 Minn.
E. 179. 63 L. R A. 937 (1903). 323. 136 N. w! 1037, 41 L. R. A. (N. S.) 391
17. McDonald v. McDonald, 142 Ind 55, (1912).
70. 41 N. E. 336 (1895). A non-expert wit- 18. Morrison v. Porter. 35 Minn. 425, 29
ness as to handwriting cannot be asked on N. W. 54, 59 Am. Rep. 331 (1886).
cross-examination to pass upon the au- 19. State v. Noe, 119 N. C. 849, 25 S. E. 812
thenticity of various signatures presented to (1896).
605 COMPAKISON OF HANDS. 781, 782
live quality has been denied. 20 In some cases even where there was no danger
of raising collateral issues as where the comparison was sought with documents
already in the case 21 the comparison was nevertheless excluded on the ground
that his handwriting might change or that fraud might be committed.
781. [" Comparison of Hands "] ; Witness to Comparison accepted. 22 Other
courts have gone even further in the admission of *' comparison of hands " than
is indicated by some of the decisions we have referred to. Contrary to the
English common-law, they have permitted the use of otherwise irrelevant writ-
ings for the creation of a mental standard on the part of a skilled witness from
which to estimate the genuineness of a disputed handwriting. 2y
The tendency of the American courts has been to regard the raising of col-
lateral issues as the chief objection to this sort of evidence and therefore it has
been readily admitted where referred to documents admittedly genuine or al-
ready in the case 24 or where the other side was estopped to deny their genu-
ineness, 25 or where the paper was already on file. 26 The rationalizing ten-
dencies of judicial administration have, in several jurisdictions, led to the
admission into evidence of documents in the disputed handwriting which were
otherwise irrelevant. The purpose of this has been to enable a suitably skilled
witness to state an inference from resemblance to a mental standard as to
whether an alleged specimen of the handwriting in question was or was not
genuine. 27
782. [" Comparison of Hands "] ; Statutory Modifications. 28 Into this
marked diversity of rules of practice, to which the rigid adherence to the doc-
trine of stare decisis, characteristic of technical procedure, had given the
force of law, came a series of unifying statutes. These followed, in a large
degree, the model furnished by the English statute of 1854, permitting of com-
parison by juxtaposition by witnesses with specimens of the disputed handwrit-
ing shown to the satisfaction of the court to be genuine. Similar statutes, in
code revisions or independently, have been passed in many American states.
It scarcely needed an express decision to establish the fact that such statutes
are not violative of the constitutional provisions guaranteeing a trial by jury.
The jury are still the ultimate judges of the issue of genuineness. Properly
construed, a statute permitting "' comparison of hands " requires the jury to
20. Commonwealth Bank v. Haldeman, 1 Co., 198 Mass. 306, 84 N. E. 469 (1908).
Penr. & W. (Pa.) 161 (1829); Graham v. 24. Appeal of Anderson, 222 Pa. 182, 70
Nesmith, 24 S. C. 285 (1885); Benedict v. Atl. 1005 (1908).
Flanigan, 18 S. C. 506, 44 Am. Rep. 583 25. Kennedy v. Upshaw, 64 Tex. 411
(1882). (1885).
21. State v. Woodruff, 67 N. C. 91 (1872) ; 26. Tower v. Whip, 53 W. Va. 158, 44 S. E.
Otey v. Hoyt, 3 Jones L. 410 (1856) ; Outlaw 179, 63 L. R. A. 937 (1903).
v. Hurdle, 1 Jones L 165 (1853). 27. State v. Thompson, 80 Me. 194, 13 Atl.
22. 3 Chamberlayne, Evidence, 2240- 892, 6 Am. St. 172 (1888).
2243. 28. 3 Chamberlayne, Evidence, 2244-
23. Reed v. Mattapan Deposit & Trust 2262.
^ 7S3, 784 HANDWRITING.
make the ultimate decision concerning the authenticity of the standard with
which the disputed writing is compared. It leaves to the court only the de-
termination of the preliminary question whether sufficient proof has been given
that the papers are genuine so as to authorize their submission to the jury. 29
The ordinary common law function of the trial judge in passing upon the
genuineness of the standardizing specimens or as to the qualifications of the
witness to aid the jury do not appear to have been materially enlarged. 30 The
old procedural qualifications of seeing a person write, adoption in course of
business or the like, are still available to a proponent. 31
Irrelevant documents. It is not essential, under these statutes, that the
standardizing documents should be relevant for any other purpose in the case.
Except for their influence in creating the standard, the writings may be entirely
irrelevant. 32
783. [" Comparison of Hands "] ; Proof of Standard. 33 Both at common
law and under the statute, whether comparison was to be made by the court and
jury or by the aid of witnesses, the ever present administrative danger of rais-
ing collaterial issues was to be eliminated, so far as possible. As a practical
matter, this could only be done either by such clear proof of the genuineness of
the standardizing document that no reasonable conflict on the point could well
arise ; or by the exhibition of such a state of affairs that the party alleging the
falsity of the disputed document could not, under the rules of procedure or
substantive law, be heard to object.
This may be done either by an admission of the party, whose chirography is
in dispute by his statement 34 or by his conduct in regard to it. 35 There may
also be an estoppel 3rt as where the opposite party is himself claiming rights
under the document offered as a standardizing document. 37
784. [" Comparison of Hands "] ; Proof. 38 Proof of the genuineness of a
standardizing document must be clear and positive and to the satisfaction of
the presiding judge. It is, therefore, addressed to him, 30 rather than to the
jury. Old writings or documents over thirty years of age, coming from the
29. People v. Molineux, 168 X. Y. 264, 61 37. Himrod v. Oilman, 147 III 293. 35 X. E.
X. E. 286. 152 L R A. 193 (1901). 373 (1893) [affirming 44 111. App. 516].
30. People v Molineux. 168 X'. Y. 264. 61 38. 3 Chamherlayne. Evidence. 2265-
X'. E. 286. 62 L. R. A. 193 (1901). 2270.
31. McKay v. Lasher, 121 X. Y. 482, 24 X. 39. Hall v. Van Vranken. 28 Hun (X. Y.)
E. 711 (1890). 403. 64 How. Pr. (X. Y.) 407 (1882).
32. Peck v. Oallaghan, 95 X. Y 73 (1884). Resemblance excluded. The genuineness
33. 2 Chamberlayne, Evidence. 2263- of the standardizing document cannot be itself
2264. established by its similarity to another au-
34. State v. Xoe, 119 X. C. 849, 25 S E. thenticated by the opinion of a skilled \vit-
812 (1896) ness. Sankey v. Cook. 82 Towa 125, 47 X". W.
35. Cunningham v. Bank, 21 Wend. 560 1077 (1891); Contra People v. Molyneux,
(1830). per Bronson, J. 168 X Y. 264, 61 X. E. 286, 62 L. R. A.
36. Williams v. Conger. 125 U. S. 397, 8 193 (1901).
S. Ct. 933, 31 L. ed. 778 (1888).
60'
COMPARISON OF HANDS.
proper custody, 40 will, in the absence of circumstances of suspicion, be re-
ceived in evidence as standards of the handwriting which they contain without
further proof of genuineness. 41
The fact that the document of similar handwriting was found on the person
of the alleged author may be a ground for receiving it 42 and in any event the
evidence must be positive and clear. 43 Magnified drawings of the document
may be used to assist in illustrating it 44 and the standardizing document must
always be produced in court. 45
785. [" Comparison of Hands "] ; Testing upon Cross-Examination. 46 Ac-
cording to the better opinion, the requirements for proof of genuineness of
handwriting, or as to the identity of the writer of a disputed specimen or the
maker of a signature, 47 apply equally upon cross-examination 48 as on that
which is direct. A different view, however, is not without authority to sus-
tain it. 49
The testing of a skilled witness is a matter of administration and there is
no objection to testing him on cross-examination by reference to documents
admittedly genuine 50 produced in court 51 but the courts have commonly re-
fused to allow efforts to trap a witness 52 as by submitting to him specimens
some of which are not genuine. 53
40. Bell v. Brewster, 44 Ohio St. 690, 10
X. E. 679 (1887).
41. U. S. v. Ortiz, 176 U. S. 422. 20 Sup.
466 (1899) (ancient Mexican official docu-
ments).
42. Crosby's Case. 12 Mod. 72 (1695).
43. Renner v. Thornburg, 111 la. 515, 82
N. \V. 950 (1900).
44. Howard v. Russell, 75 Tex. 171, 12 S.
W 525 (1889).
45. People v Dorthy, 50 N. Y. App. Div. 44,
63 X. Y. Suppl. 592, 14 X. Y. Cr. 545
(1900).
46. 3 Chamberlayne, Evidence, 2271,
2272.
47. Richardson v. Xewcomb, 21 Pick.
(Mass.) 315 (1838).
It is error to strike out an admission by a
handwriting expert, made upon cross-exam-
ination, that he had been mistaken as to sig-
natures which he had pronounced genuine,
although the trial judge might, in his discre-
tion, have excluded an effort to secure such
admission in the first instance. Hoag v.
Wright. 174 X. Y. 36. 63 L. R. A. 163 (1903).
48. Gaunt v. Harkness, 53 Kan. 405. 36
Pac. 739. 42 Am. St. Rep. 297 (1894): Mas-
sey v. Virginia Farmer's Xat. Bank, 104 111.
327 (1882); Pierce v. Northey, 14 Wis. 9
(1861).
49. Thomas v. State, 103 Ind. 419, 2 N. E.
808 (1885).
50. Young v. Honner, 2 Moo. & Rob. 536
(1840).
One already in evidence. Xeal v. Xeal,
58 Cal. 287 ( 1881 ) ; Thomas v. State, 103
Ind. 439, 2 N. E. 808 (1885) ; Harvester Co.
v. Miller, 72 Mich. 272, 40 X. W 429, 16
Am. St Rep. 536 (1888); Brown v. Cheno-
weth, 51 Tex. 477 (1879).
51. See O'Brien v. McKelvey (Wash. 1910),
109 Pac. 337.
52. Use of documents of doubtful authen-
ticity excluded. Pierce v. Xorthey, 14 Wis.
9 (1861): Griffits v. Ivery, 11 A. & E. 322
(Q. B.) (1840) See also Wilmington Sav.
Bank v. Waste (Vt. 1904), 57 Atl 241.
The line of inquiry has been allowed.
Johnson Harvester Co. v. Miller, 72 Mich. 265,
40 X. W. 429, 16 Am. St. Rep. 536 (1888).
See also Doe v. Suckermore, 11 A. & E. 124
(1839).
53. State v. Griswold, 67 Conn. 290, 34
Atl. 1046, 33 L. R. A 227 (1896) : Massey v.
Farmers' Bank, 104 111. 332 (1882) -. Ardrews
v. Hayden's Adm'r, 88 Ky. 455, 459. 11 S. W.
428 (1889) ("deceiving the minds of honest
men " ) .
Contra: Browning v. Gosnell. 91 la 448,
456, 59 X. W. 340 (1894) ; Hornellsville First
jjsj 780,787 HANDWRITING. 608
786. [" Comparison of Hands "] ; Proof in Criminal Cases. 54 Subsequent to
Colonel Sidneys trial and until the nineteenth century "' comparison of hands "
while received in civil cases was excluded in criminal cases 3 but the modern
use of reason in matters of evidence has eliminated the distinction 56 which
does not appear in the enabling statutes, passed to admit such testimony.
The pririlege against self-incrimination does not extend so far as to render
inadmissible, in a criminal case, as the standard of comparison, specmens of
defendant's handwrting obtained before any definite charge had been made
against him. Nor is it important in this connection that the accused knew
that he was suspected of being the perpetrator of a discovered crime. It is
equally unimportant that the defendant was at the time in attendance upon the
hearing under compulsory process. 57
787. [" Comparison of Hands "] ; Standardizing Documents. 58 One whose
handwriting is in dispute cannot write out standardizing specimens of his own
hand 3S) but specimens may be received though written post lit em motam if
written in the regular course of business or under other circumstances which
seem to remove the element of self-interest 60 and in general the standardizing
document should always be written without knowledge that it is to be so used ni
except that one who denies the genuineness of a specimen may always be asked
to write in the presence of the jury. 62
The standardizing document must be proved genuine 63 so that it is no
longer a question for the jury, and the judge can rule that it is genuine as a
matter of law. 64 It must in short be proved to the satisfaction of the judge 65
who may test it by mechanical means as by magnified drawings or measure-
ments, microscopes 66 or photographs. 67
Nat. Bank v. Hyland. 53 Hun (N. Y.) 108, 453 (1852) ; Bridgman v. Corey, 62 Vt. 1, 20
6 N. Y Suppl. 87 (1889). Atl. 273 ( 1889) ; Hickory v. U. S.. 151 U. S.
Information refused. Where this test is 303, 14 S. Ct. 334, 38 L ed. 170 (1893)
permitted, neither the witness nor the oppos- 62. Allen v. Gardner, 47 Kan. 3:57. 27 Pac.
ing counsel is entitled to know what writings 982 (1891) ; Chandler v. Le Barren, 45 Me.
will be used for these purposes, or whether 534 (1858); Bronner v. Loomis, 14 Hun (X.
they are genuine or not, or, by whom they Y.) 341 (1878) : Sprouse v. Com., 81 Va. 374
were written. Traveler's Ins. Co. v. Shep- (1886).
pard, 85 Ga 751, 12 S. E. 18 (1890). 63. Martin v Maguire. 7 Gray 177 (1S56>.
54. 3 Chamberlayne. Evidence, 2273. While great care should be taken in deter-
55. Trial of the Seven Bishops, 12 How. St. mining whether the standard of comparison ia
Tr. 466 (1688). genuine, the usual rule as to a fair balance
56. Xee Ausmus v. People. 47 Colo. 167, 107 of testimony applies. Bowell v. Fuller, 59 Vt.
Pac. 204 (1910). 688, 10 Atl. 853 (1887).
57. People v Molineux, 168 N. Y. 264. 61 64. Sankey v. Cook, 82 Iowa 125, 47 X.
N. E. 286, 62 L. R. A. 193 (1901). W 1077 (1891).
58. 3 Chamberlayne, Evidence, 2275- 65. University of Illinois v. Spalding, 71
2283 - X. H 16:?. 51 Atl. 731 (1902)
59. Hickory v. U. S.. 151 U. S 303, 14 S. Ct. 66. White Sewinsr Maoh Co. v. Gordon,
334, 38 L. ed. 170 (1893). 124 Ind 495. 24 X. E 1053, 19 Am. St. Rep'
60. Sanderson v Osgood, 52 Vt. 312 (1880). 109 (1890): Indiana Car. Co. v. Parker, 100
61. Keith v Lothrop, 10 Cush. (Mass.) Tnd. 181 (1884); Morse v. Blanchard, 117
609 WEIGHT OF INFERENCE. 788, 789
788. Probative Weight of the Inference; A Question for the Jury. 68 The
probative force, belief -compelling quality, of the inference of the identity of a
given writer from the resemblance of the disputed specimen to a mental stand-
ard created in the observer, presents a question entirely for the jury. 69 They
are to judge both as to genuineness of the standardizing documents, and as to
the correctness of the inference which the skilled witness draws from them. 70
They may themselves, as has been seen, institute comparisons between the dis-
puted writings and specimens which they find to be genuine, using the results
of their observation as part of the basis of their final judgment. Their action
must, however, be reasonable.
They may consider the education of the witness, 71 the vividness of his im-
pression 72 and other circumstances as whether the specimen was made before
the witness had acquired a mental standard of the handwriting. 73
789. [Probative Weight of the Inference] ; Function of the Court. 74 Sound
administration receives all evidence necessary to the proponent's case on which
the jury could reasonably act. The action of the court, therefore, in admit-
ting the testimony of witnesses in regard to handwriting in no way controls the
exclusive right of the jury to judge of the weight of the testimony. 75 So long
as the jury may reasonably find in favor of the inferences of skilled witnesses
as to handwriting it is no part of the duty of the trial court to reject such evi-
dence when tendered or to instruct the jury that it is " intrinsically weak, and
ought to be received and weighed by the jury with great caution." 7C It is
equally true that, should the evidence be such that the jury could not draw a
rational inference from it which would be relevant to the existence of a fact in
the res yesice it will be rejected. 77
The use of this species of testimony is now firmly grounded in our practice 78
but there is still much unfavorable comment as to it. 79
Mich. 37, 75 X. W. 93 (1898): Kannon v. 74. 3 Chamberlayne, Evidence, 2286-
Galloway, 2 Baxt. (Tenn.) 230 (1872). 2288.
67. Maroy v. Barnes, 16 Gray (Mass.) 161, 75. Pinkham v. Cockrell, 77 Mich 265, 43
77 Am. Dec. 405 (I860); Frank v. Chemical X. W. 921 (1889); State v. Hastings, 53
Nat. Bank. 37 X V. Super. Ct. 26 (1874); N H. 452 (1873): Rowell v. Fuller, 59 Vt.
Howard v. Russell, 75 Tex. 171, 12 8. W. 688. 10 Atl. 853 (1887); State v. Ward, 39
525 (18891 ; Rowell v. Fuller, 59 Vt. 688. 10 Vt. 225 (1867).
Atl. 853 (1887). 76. Coleman v. Adair, 75 Miss. 660, 23 So.
68. 3 (hamherlayne. Evidence. 2284. 369 (1898).
22*5. 77. McC'onnell v. Playa de Oro Min. Co.. 59
69. In rr Thomas' Estate. 155 Cal. 488. 101 X Y. Suppl 368 (IS!)!)).
Pac. 7!>8 (1909). 78. Green v. Terwilliger. 56 Fed. 384
70. State v. Hastings. 53 X. H. 452 (1873). (1892)
71. 17 Cyc p. 183; U. S. v. Gleason, 37 Fed. 79. Jackson v Adams, 100 Iowa 163, 69 X.
331 (1889). W 427 (1896): U. S. v. Pendergast, 32 Fed.
72. Green v. Terwilliger, 56 Fed. 384 198 (1887). See also Whitaker v. Parker,
(1892). 42 Iowa 585 (1876).
73. Ratliff v. Ratliff. 131 X. C. 425, 42 S.
E 887. 63 L. R. A. 963 (1902).
790, 791 HANDWRITING. 610
790. [Probative Weight of the Inference]; Inference a reasoned One. 80
While the element of intuition can scarcely be said to be entirely absent from
the result of an observation in regard to handwriting, its influence is com-
paratively slight. Any person, however unskilled, may become conscious of the
sense-impressions which are presented to his mind by the written characters.
Tims far, intuition serves all observers alike. What they mean in terms of
identity of the writer is a matter of inference, of reasoning. Intelligent ap-
preciation implies the existence of a previously created standard in the mind.
By this the observed phenomena of the writing are, as it were, to be measured.
Standard and measuring alike are mental concepts. The element of reasoning
when compared to that of observation is, therefore, a large one in such an
inference.
791. [Probative Weight of the Inference] ; Tests furnished by Cross-Exami-
nation. 81 The probative force of an inference from " comparison of hands "
may be greatly strengthened or weakened by the results of cross-examination.
Such is apparently the result of all testing. Breaking or even bending under
the application of a given strain creates distrust. Successful resistance in-
spires confidence. In the case of a statement, it tends to create belief. Among
the various tests furnished by cross-examination, few are specifically applied to
handwriting. They furnish, in general, the usual probing, rebutting or sup-
plementing which are characteristic of cross-examination. 82
Thus it may be shown that the skilled witness reached an opposite conclu-
sion at another time 83 or had no adequate opportunities for observation, 84 or
the witness may be shown a portion of a document and asked who wrote it. 85 .
In an important matter strong corroboratiou has been thought necessary 86
80. 3 Chamberlayne, Evidence, 2289. 84. Herrick v. Swomley, 56 Md. 439 ( 1881 )
81. 3 Chamberlayne, Evidence, 2890. (where witness first saw the writing).
82. Best on Ev. ( Chamberlayne's 3rd 85. Kirksey v. Kirksey. 41 Ala. 626 ( 1868) .
Amer. ed.) p. 602. 86. In re Taylor's Will, 10 Abb. Prac. (N.
83. Hoag v. Wright, 174 N. Y. 36, 66 N. S.) 300 (1871).
E. 579, 63 L. R. A. 163 (1903).
CHAPTER XXXII.
CONCLUSION FROM OBSERVATION; FACT.
Conclusions from observation, 792.
administrative requirements; necessity, 793.
relevancy ; preliminary detail of facts, 794.
Conclusions of fact; when admitted, 795.
sufficiency, 796.
bloodli ounds tracking criminal, 797.
utility, 798.
voluminous data, 799.
when rejected; conduct, 800.
inferences, 801.
suppositions, 802.
792. Conclusions from Observation. 1 Midway between Inferences on the
one hand, and Judgments on the other, stand Conclusions from Observation.
From the former the difference lies in a decreased proportion of the element of
intuition or specific observation, while the proportion of reasoning may be,
and frequently is, much greater. Conclusions from Observation are distin-
guished from Judgments by a greater influence of the element of observation,
which, in its specific relation to the act of reasoning, entirely disappears, and
by a decreased proportion of pure ratiocination. In other words, as has been
pointed out, Inference, Conclusion and Judgment stand in a progressive series,
varying with the amount of reasoning involved. In Conclusions, the element
of specific observation is not lacking. The basis of the reasoning contains
much beside it, past experience, information from others, even general knowl-
edge. Conditions may arise when, even with these additions, the basis on
which the mind acts is so simple and so little controverted that the result is
spontaneous, automatic. Tn such cases, judicial administration receives the
statement without difficulty, as a matter of course. The characteristic conclu-
sion, however, presents so large an element of reasoning and the actual basis of
the mental processes are so numerous and obscure that an adequate necessity
must be shown for invading the special province of the jury, that of reasoning
from general propositions of experience. If this is not done, the conclusion is
rejected. 2
1. 3 Chamberlayne, Evidence, 2291- O'Donnell, 213 111. 545, 72 N. E 1133 (1904)
2293. [affirming judgment 114 111. App. 345].
2. Chicago Terminal Transfer R. Co. v.
611
793-705 CONCLUSION FKOM OBSERVATION; FACT.
In dealing with conclusions, the work is largely administrative. No hard
and fast rule, so dear to the heart of formal or technical procedure, can well be
applied. The question is one as to the degree in which the reasoning is simple
and the facts easily understood. The border line between reasoned inference
and fairly obvious conclusion is one hazy and difficult to draw. The reasoning
is less closely correlated to the phenomena observed, there is a larger basis of
assumed or undisclosed fact, and that is the most which can be said. In pro-
portion, however, as the reasoning bulks more largely and the basis of assumed
or undisclosed knowledge or experience grows wider and more material, does
the hesitancy of administration become more acute against admitting state-
ments which so nearly substitute the witness for the jury.
793. [Conclusions from Observation]; Administrative Requirements; Neces-
sity. 3 That which judicial administration views with alarm and is slow to
accept is reasoning. Not that of judges or jurors; upon them it is imposed.
Reasoning by witnesses is objectionable because it tends to supplant the jury
to whose judgment the parties are entitled. Should it happen, therefore, that
the element of inference or reasoning is present to an extent not justified by any
administrative necessity the mental act will be rejected. 4 Witnesses must not
intrude, by their conclusions, upon the special field of the jury. 5 Where all
constituent facts can fully be placed before the jury, the conclusion of the wit-
ness must be rejected, 6 no necessity for receiving it having been shown.
794. [Conclusions from Observation 1 ; Relevancy; Preliminary Detail of
Facts. 7 In connection with conclusions, as in other relations which involve
the use of the reasoning faculty upon physical or psychological phenomena, the
trial judge may well require from the witness a preliminary detail of the con-
stituting facts upon which he grounds his opinion. 8 By this means, a ready
test is furnished for judging of the opportunities for observation enjoyed by him
and regarding his mental ability to coordinate these into an act of reasoning
helpful to the jury. Under the administrative canon which secures to the
parties the use of reason, the judge will exclude a conclusion where it appears
that it could not rationally be reached upon the facts enumerated by the
witness. 9
795. Conclusions of Fact; When admitted. 10 As is abundantly illustrated
3. 3 Chamberlayne, Evidence, 2294, 7. 3 Chamberlayne, Evidence, 2296-
2295. 2300.
4. M. S. Huey Co. v. Rothfeld, 84 N. Y. 8. Talladega Ins. Co. v. Peacock, 67 Ala.
Suppl. 883 (1903) (doing business in the 253 ( 1880) ; Tremaine v. Weatherby, 58 Iowa
state). 615, 12 X. W. 609 (1882); Jones* v. Merri-
5. Scott v. Sovereign Camp of Woodmen of mack River Lumber Co., 31 X. H. 381 (1855).
the World ( Iowa 1910), 129 N. W. 302 (infer- 9. Gray v. Brooklyn Heights R. Co., 175
ence of suicide). N. Y. 448, 67 X. E. 899 [reversing 72 X. Y.
6. City of Macon v. Humphries, 122 Ga. App. Div. 424, 76 X. Y. Suppl. 20] (1903).
800, 50 S. E. 986 (1905). 10. 3 Chamberlayne Evidence, 2301-
2309.
613
CONCLUSIONS OF FACT.
795
by the decisions, the fact that a given mental act assumes the phraseology ap-
propriate to a conclusion is by no means sufficient to insure its rejection. Ad-
ministration looks not only at the appearance but penetrates through that into
the reality, the essential nature of that which it is proposed to submit to the
tribunal. It will scrutinize, not the form of language, but the nature of the
subject matter with which the reasoning deals, in what ways these are related
to the province of the jury or of the court and how largely a matter of specula-
tion or guess work the so-called opinion quoted is. Should the facts involved,
the observations made, be comparatively few and simple and lead, in the judg-
ment of all reasonable men, to but one necessary inference, the conclusion will
be received, 11 whatever may be the language in which it is couched. It is, in
main, a matter of fact and will be so treated.
The witness will ordinarily be allowed to state his conclusions as to causa-
tion, the cause and effect of certain phenomena, 12 and the conclusion presented
from certain conditions will be received where the conclusion is a necessary
one 13 as in case of financial 14 or physical condition 15 or where the witness
states that certain things were necessary. 16 So the conclusions of the witness
as to negative facts may be admitted, 17 and the possibility of certain acts may
be shown where the witness is qualified to give an opinion. 18 So an odor may
be described by comparing it with another odor. 19
11. Pierson v. Illinois Cent. R. Co., 149
Mich. 167, 112 N. W. 923, 14 Detroit Leg. N.
405 ( 1907) (resisted as long as he could).
12. A witness who was present just before
a building fell, and who had observed in-
dications of the impending collapse, and ex-
amined it immediately after its fall, could
testify as to the physical cause thereof. The
impression made upon his mind at the time
was in the nature of a physical fact, he being
obviously unable to portray to the jury all the
facts tending to produce it. Walker v.
Strosnider (W. Va. 1910), 67 S. E. 1087.
13. Rearden v. St. Louis & S. F. Ry. Co.
(Mo. 1908), 114 S/W. 964 (health) : Roberts
v. Virginia-Carolina Chemical Co., 84 S. C.
283, 66 S. E. 208 (1909) ; Houston & T. C. R.
Co. v. Haberlin (Tex. Civ. App. 1910). 125
S. W. 107 (boiler appeared safe).
14. Sloan v. New York Cent. R. Co.. 45 N.
Y. 125 (1871).
15. Kimball v. Xorthern Electric Co. (Cal.
1911), 113 Pac. 156: State v. Vanela. 40
Mont. 326, 106 Pac. 346 (1910) (very nerv-
ous) ; Gulf, C. & C. F. Ry. Co. v. Wafer (Tex.
Civ. App. 1910), 130 S. W. 712. Conclusions
of fact are not always inadmissible and so
far as they relate to collateral facts not di-
rectly in issue save much delay and circum-
locution. The same is true of leading ques-
tions. To refuse to permit a witness to testi-
fy that one appeared " frightened " or " in-
solent " has the effect merely of shutting
out the testimony of all witnesses of these
conditions who have not extraordinary pow-
ers of observation and description. Cross-
examination will in most cases sufficiently
disclose what basis the witness has for his
conclusion. Schultx v. Frankfort Marine Ac-
cident, etc., Co., 151 Wis. 537, 139 X. W.
386, 43 L. R. A. (N. S.) 520 (1913). A wit-
ness may state that the relations between
two men were friendly. This is a case where
mere descriptive language is inadequate to
convey to the jury the fact friendly relations
did exist. State v. Cooley, 19 X. M. 91, 140
Pac. 1111, 52 L. R. A. (N. S.) 230 (1914).
16. Gulf, etc.. R. Co. v. Richards. S3 Tex.
203, 18 S. W. 611 (1892) (taking land).
Scheffer v. Anchor Mut. F. Ins. Co., 113 Iowa
652, 85 X. W. 985 (1901): Miller v. Meade
Tp.. 128 Mich. !>S. 87 X. W. 131 (1901).
17. State v. McDaniel. 39 Oreg. 161, 65
Pac. 520 (1901): Burleson v. Reading, 110
Mich. 512. 68 X. W. 294 (1896); Missouri,
K. & T. Co. of Texas v Rich (Tex. Civ. App.
1908), 112 S. W. 114.
18. Lake Erie, etc., R. Co. v. Juday, 19 Ind.
796,797 CONCLUSION FEOM OBSERVATION; FACT. 614
796. [Conclusions of Fact] ; Sufficiency. 20 An observer who has had sat-
isfactory opportunities for noticing given phenomena 21 and establishing for him-
self a capacity to blend them into a helpful inference, may be permitted to
state his conclusion as to the relation of sufficiency which may exist between
two things. Unless ability and opportunity are shown to combine in the wit-
ness, his conclusion will be rejected. 22
This sufficiency may be of light, 23 means to an end, 24 opportunity, 25 space 26
or time. 27
797. [Conclusions of Fact] ; Bloodhounds Tracking Criminal Conclusions
of fact are sometimes drawn even from the action of animals as in case of
tracking a criminal by bloodhounds. The weight of authority seems to be in
favor of the admissibility of such evidence 28 though there is a very respect-
able minority holding to what seems the sounder view. 29 The evidence is not
only very dangerous on account of the superstitious weight given to it by many
jurymen but also on account of the impossibility of testing the dog. It is im-
possible to cross-examine the dog and ascertain just what caused him to take
the course he did and just how sure he felt of the correctness of his action,
how many mistakes he had made in the past, whether he felt any bias towards
the person he tracked, whether he knew him before and whether he tracked
him with the hope of receiving a bone or of avenging past insults and whether
he was surprised at the result of his following certain smells. There is no
way of putting in evidence the workings of what is called the brain of the dog.
The jurisdictions which receive this evidence do attempt to safeguard it
App. 436, 49 1ST. E. 843 (1898) ; Aidt v. State, 26. Kansas City, etc., R. Co. v. Lackey, 114
2 Ohio Cir. Ct. 18, 1 Ohio Cir. Dec. 337 Ala. 152, 21 So. 444 ( 1896) ; Brunker v. Cum-
(1886) ; Bluman v. State, 33 Tex. Cr. 43, 21 mins, 133 Ind. 443, 32 N. E. 732 (1892).
S. W. 1027, 26 S. W 75 (1893). 27. McCrohan v. Davison, 187 Mass. 466,
19. On an issue as to whether a person had 73 N. E. 553 (1905) (cross the street).
been poisoned a witness may be asked whether 28. McDonald v. State, 165 Ala. 85 (1910) ;
certain medicine given her had an odor like Padgett v. State. 125 Ark. 471 (1916) ; Davin
a certain poisonous preparation. An odor v. State, 46 Fla. 137 (1903); Harris v. State,
can only be described ordinarily by compari- 17 Ga. App. 723 (1916) ; State v. Adams, 85
son with some familiar odor. State v. Buck, Kan. 4.35 (1911) ; Pedigo v. Commonwealth,
88 Kan. 114, 127 Pac 631. 42 L. K. A. (X. 103 Ky. 41 (1898) ; Carter v. State, 106 Miss.
S.) 854 (1912) 507 (1914); State v. Rasco, 239 Mo. 535
20. 3 Chamberlayne, Evidence, 2310- (1912); State v. Dickerson. 77 Ohio St. 34
2315. (19071: State v. Wiggins, 171 N. Car. 813
21. Chamberlain v. Platt, 68 Conn. 126, (19)6): Commonwealth v. Hoffman, 52 Pa
35 Atl. 780 (1896). Super. Ct. 272 (1913): State v. Brown, 103
22. Chamberlain v. Platt, 68 Conn. 126. 35 S. Car. 437, 88 S. E. 21. L. R. A. 1916 B 1295
Atl. 7SO (1806) (1916): Parker v. State, 46 Tex. Cr. R. 461
23. Chamberlain v. Platt, 6S Con. 126. 35 (1904).
Atl 780 (1896) : Colorado Mortg., etc., Co. v. 29. People v. Pfanschmidt. 262 111. 411,
Rees. 21 Colo. 435. 42 Pac. 42 (1895). 104 N. E. 804 (1914) : Ruse v. State (Ind.
24 Chamberlain v. Platt, 68 Conn. 126, 35 1917), 115 N. E. 778. L. R. A. 1917 E 726;
Atl. 780 (1896). Brott v. State, 70 Neb. 395 (1903).
25. Montague v. Chicago Consol. Traction
Co., 150 111 App. 288 (1909).
615 CONCLUSIONS OF FACT. 798-800
by requiring that it be shown that the dogs have been trained and are experi-
enced in trailing human beings and were started on a trail at a point where
the guilty party had been. The surrounding circumstances may also be
shown including weather conditions and the time elapsed.
In all the cases where it was admitted it was corroborated by other evidence
and in one case it was held that such corroboration was necessary. 30
798. [Conclusions of Fact]; Utility. 31 A witness of sufficient experience
and observation may state his conclusion as to the usefulness of certain things
presented to his attention. Thus, he may give his opinion as to whether certain
supplies are or are not useful to a township. 32
799. [Conclusions of Fact] ; Voluminous Data. 33 A unique forensic situa-
tion in which the summary or conclusion of a witness customarily is received
is where a very large number of entries, 34 records or separate documents of
any sort or kind 35 are submitted. Under such circumstances, a competent
witness is permitted to state, from his observation and examination, his conclu-
sion as to what the papers show. For the expediting of trials a presiding
judge may well be justified in economizing the court's time by receiving the
conclusion of the witness. 36
800. [Conclusions of Fact]; When rejected; Conduct. 37 In many, perhaps
most, instances of conclusions of fact, the reasoning is rejected as obnoxious
to the rule excluding opinion evidence. More specifically, the objection may
be that the basis of the reasoning is not disclosed, that it tends to substitute the
witness for the jury 38 or in some other way to evade the province of the latter.
Thus, a statement by a witness that a given person is professionally skilful
may be one which the judge is well warranted in withdrawing from the con-
sideration of the jury. 39 The conclusion also that certain conduct is " pru-
30. The fact that trained bloodhounds over the same ground and the court suggest
trailed from the scene of the crime to thfe that it is highly speculative whether the dog
accused may be a circumstance to be consid- was following the old trail or some more re-
ered in connection with other evidence but cent tracks.
alone and unsupported it is insufficient, but 31. 3 Chamberlayne, Evidence. 2316.
there must be other and human testimony to 32. Litten v. Wright School Tp.. 1 Ind.
convict. Carter v. State, 106 Miss. 506. 64 App. 92, 27 X. E. 329 (1891) (township sup-
So 215. 50 L. R. A. (X. S.) 1112 (1914). plies).
In People v. Whitlock, 171 X. Y. Suppl. 109 33. 3 Chamberlayne. Evidence. 2317.
(1918), the court assumes that under proper 34. Von Sachs v. Kretz, 72 X. Y. 548
conditions such evidence is admissible but M878).
hold that it is not enough to show that the 35. Boston & \V. R. Co. v. Dana, 1 Gray 83,
dog was a German police dog which had been 89. 104 (1854) i sales of tickets),
trained to track his master by smelling of 36. Rollins v. Board, 33 C. C. A. 181, 90
liis handkerchief and for exhibition per- Fed 575 (1898).
formances as this does not show that the dog 37. 3 Chamberlayne. Evidence. 2318.
had had any experience in tracking stran- 38. Churchill v. Jackson, 132 Ga. 666, 64
gers. In this case there had been two rains S. E 691 (1909) (proper person to raise a
since the crime before the dog went over the child)
trail and many other persons had since been 39. Hoener v. Koch, 84 111. 408 (1877)
801,802 CONCLUSION FROM OBSERVATION; FACT. 616
dent " may so clearly invade the right of the jury to reason with regard to facts
which they are capable of understanding as to warrant its rejection. 40 Wit-
nesses should not be permitted to testify that one party or the other is an
unfit and improper person to serve as guardian as this is opinion evidence based
on facts which should be submitted to the court. 41
801. [Conclusions of Fact] ; Inferences. 42 Under the administrative canon
which .protects the province of the jury from reasoning by witnesses, a fact in
issue or one material thereto does not constitute the proper subject of a con-
clusion. This may be the case with inferences as to the necessity of certain
conduct, 43 or the possibility of certain results 44 or probability 45 or the suf-
ficiency of certain things for a given end. 46
802. [Conclusions of Fact] ; Suppositions. 47 The propriety of rejecting a
mere supposition is, in most cases, obvious. The jury can never safely be
allowed to wander far from actuality, true existence has disclosed in the realm
of matter or in that of mind. Speculation or conjecture is, therefore, to be
excluded upon detection. As a rule, a witness will not be allowed to state his
conclusion as to what would have taken place if a certain thing which actually
occurred had not happened, 48 or what he supposes would have been the result
if an event had come into being which, in fact, failed to. 49 Should the con-
clusion, however, be a simple and necessary one. dependent upon well known
physical laws or obvious and controlling motives of human conduct, the ele-
ment of conjecture may be present in such slight proportions as to warrant the
reception of the act of reasoning. 50
(malpractice) : Woeckner v. Erie Electric 45. May v. Breunig, 120 N". Y. Suppl. 98
Motor Co., 187 Pa. St. 206, 41 Atl. 28 (1898) (1909) (expected profits),
(motorman). 46. Bohr v. Xeuenschwangder, 120 Ind. 449,
. 40. Card v Columbia Tp., 191 Pa. St. 254, 22 N. E. 416 (1889) (drain land).
43 Atl. 217 (1S!)!) 47. 3 Chamberlayne, Evidence, 2324.
41. Milncr v. G&tlin, 143 Ga. 816, 85 S. E. . 48. Kochmann v. Baumeister, 73 N. Y.
1045, L. K. A. 1916 B 977 (1915) : Churchill App. Div. 309, 76 N. Y. Suppl. 769 (1902)
v. Jackson, 132 Ga. 066. 64 S. E. 691, 49 (how many goods a salesman would have sold
L. R. A. (X. S.) 875 (1909). if he had not been discharged). Cogdell v.
42. 3 Chainberlayne, Evidence, 2319- Wilmington, etc., R. Co., 130 N. C. 313, 41
2323. S. E. 541 (1902) (persons could have stood
43. Illinois Southern Ry Co. v. Hayner, 225 on a platform if it had not been unsound).
Til 613, SO X. E. 316 (1907) (conditions at 49. People v. Rodawald, 177 N Y. 408, 70
crossing) N. E. 1 (1904) (known that a person had
44. Peck v. New York Cent., etc., R. Co., been in prison)
165 N. Y 347, 59 N. E. 206 (1901) (set fires 50. TTowland v. Oakland Consol. St. R. Co.,
by sparks). 115 Cal. 487, 47 Pac. 255 (1896).
CHAPTER XXXIII.
CONCLUSIONS FROM OBSERVATION; LAW.
Conclusions of law, 803.
legal reasoning, 804.
when admitted, 805.
intrusion upon the function of the court, 806.
when conclusion is received, 807.
803. Conclusions of Law. 1 If the conclusion of fact, considered in the last
chapter, be obnoxious to judicial administration as inconsistent with the right
of a party to have the reasoning of a jury rather than that of a witness applied
to the facts of his case, the conclusion of law is still more objectionable. 2 In
case of the latter, the witness is asked to take a further step, far into the center,
as it were, of the jury's position. He is called upon to apply the rule of law
to the facts of the case. More than this, the witness takes it upon himself to
determine what the rule of law actually is. Here is an invasion of the prov-
ince of the presiding judge.
For these sufficient reasons, that it usurps the functions both of the jury and
of the judge, a conclusion of law, when these two considerations are, or either
of them is, operative, should be rejected. 3
804. [Conclusions of Law]; Legal Reasoning. 4 Whatever may be the pro-
priety, in a juridical sense of permitting, and, indeed, requiring, the jury to do
legal reasoning, a question upon which certain observations are elsewhere made,
the right of a party litigant, in most cases, to insist that the jury should apply
the rule of law to the constituent facts is unquestionable. Against this prin-
ciple of judicial administration, protecting the party in his right to a jury
trial, the conclusion of law seriously offends, in proportion to the amount of
legal reasoning which it involves. This may be slight, the statement, in
essence, being merely a convenient method of announcing a fact. On the other
hand, the right of a proponent to prove his case may require that a conclusion
1. 3 Chamberlayne. Evidence. 2325. where the latter involves a mixed question of
2. Where the only effect of testimony law and fact. Houston & T C. R. Co v.
sought to be adduced is to elicit the witness' Roberts (Tex 1008). 108 S. W. 808.
opinion on a question of law and not of fact. 3. Trenton Potteries Co. v. Title Guarantee,
it should be excluded. Connor v Hodges, 7 etc.. Co., 176 X. Y. 60, 68 N. E. 732 il!W:])
Ga App. 153, 66 S. E. 546 (Ifl09). That a (what ought to have been done in issuing an
witness may possess greater knowledge as to insurance policy).
the existence of facts entering into an inquiry 4. 3 Chamberlayne, Evidence, 2326-
than the jury would be supposed to have, 2328.
does not render his conclusion admissible
617
8U5
CONCLUSION FROM OBSERVATION; LAW
618
of law on the part of a witness be received. Where such is the case, the court,
alert to protect the rights of the opponent to the reasoning of the jury, will re-
quire that the former establish to its satisfaction a forensic necessity which
shall justify the reception of evidence so fraught with possible mischief to
the opposing interest.
A negative fact embodies less o legal reasoning than a positive one and will
be more readily received 5 but a psychological fact will be excluded in most
cases like a physical fact. 6
805. [Conclusions of Law] ; When admitted. 7 The rules of evidence can-
not be safely extended so far as to exclude every question to which the answer
might possibly involve a matter of law. Conclusions of law are frequently
admitted. 8 Administrative considerations or the absence of administrative ob-
jections may warrant their reception.
The existence of agency may be a mere statement of fact and hence admis-
sible 9 and questions of damages may involve so many complicated elements
that primary evidence cannot be laid before the jury 10 especially where the
legal rule for assessing damages is simple. 11 So conclusions as to indebted-
ness are often received in complicated cases 12 and the same result is often
reached in questions of ownership 1:{ - or possession. 14
But where the question is largely a matter of law as often in cases of
gard to them. Hayes v. Ottawa, etc., R. Co.,
54 111. 373 (1870) (depot near land).
11. Blaney v. Salem, 160 Mass. 303, 35 N.
E. 858 (1894).
12. Owen v. McDermott (Ala. 1906), 41 So.
730; Richards v. Herald Shoe Co. (Ala. 1905),
39 So. 615; Harrison Granite Co. v. Penn-
sylvania R. Co., 145 Mich. 712, 108 N. W.
1081, 13 Detroit Leg. N. 631 (1906). It may
be a necessary and obvious fact. Shrimpton
v. Brice, 109 Ala. 640, 20 So. 10 (1896);
Plank v. Indiana Mut. Bldg., etc., Assoc., 28
Ind. App. 259, 62 N. E. 652 (1902) ; Stude-
baker Bros. Mfg. Co. v. Endon, 50 La. Ann.
674, 23 So. 872 (1808); Greene v. Tally,
39 S. C. 338, 17 S. E. 779 (1893) ; Miller v.
George, 30 S. C. 526, 9 S. E. 659 (1889).
Collective facts. That a given person
" owed " another may be merely a collective
fact. Owen v. McDermott (Ala. 1906), 41
So. 730.
13. Bunke v. Now York Telephone Co., 188
N. Y. 600, 81 N. E 1161 (1907). affirming
jndciment 97 N. Y. Suppl. 66, 110 App. Div.
241 (1905), which affirmed judgment 91 N.
Y Suppl. 390 (1904) (wires).
14. Knight v. Knight, 178 111. 553, 53 N. E.
306 (1899^ : Fisher v. Bennehoff, 121 111. 426,
13 N. E. 150 (1887).
5. Sewell v. Chicago Terminal Transfer R.
Co., 177 111. 93, .32 X. E. 302 (1898); Beck
v. Pennsylvania, Poughkeepsie & Boston R.
Co., 148 Pa. St. 271, 23 Atl. 900, 33 Am. St.
Rep. 822 (1892) statement that was no in-
jury to property.
6. Binkley v." State (Tex. Cr. App. 1907),
100 S. \V. 780.
7. 3 Chamberlayne, Evidence, 2329-
2360.
8. Spencer v. Xew York, etc., R. Co., 62
Conn. 242, 25 Atl 350 (1892) (way of ne-
cessity) Knight v. Knight. 178 111. 553, 53
X. E. 306 (1899) ("control"); Paul v.
Conwell, 51 111. App 582 (1893) (was super-
intendent ) .
9. Clark v. Hoffman, 128 111. App. 422
(1906) (concerning a partnership).
10. Bee Pub Co. v. World Pub. Co., 59
Kebr. 713, 82 X. W. 28 (1900); Lazarus v.
Ludwig, 45 X. Y. App. Div 486, 61 N. Y.
Suppl. 365 (1899).
Benefits. The same administrative prin-
ciples are applied by the court to proof, in
mitigation of damages, of benefits received.
Should the minute and complicated phenom-
ena observed by the witness evade effective
statement in detail, they may be given by him
in the secondary form of his conclusion in re-
619
FUNCTION OF COURT.
806
agency 15 or damages 16 for personal injury 17 or breach of contract 1S or the
fact of indebtedness 19 or the fact of justification for conduct 20 or the legal
effect of transactions 21 or the existence of legal rights 22 or liability 23 or neg-
ligence, 24 ownership, 25 possession 20 or relations between parties 2 ' the conclu-
sions of law of the witness are properly rejected.
806. [Conclusions of Law]; Intrusion upon the Function of the Court. 28 A
witness will not be permitted to intrude his conclusion into the province of the
court. 29 A judicial trial involves, in its very nature, the unimpaired perform-
ance by the presiding judge of the functions of his office. Therefore, a wit-
ness will not ordinarily be permitted to apply a legal standard or rule of law
or practice to the facts which he details and then state the conclusion to which
he arrives. 30 Such a process is administratively objectionable, because it
covers a double danger. (1) The witness may be employing facts as part of
his reasoning which are known only to himself and not even consciously to
him. (2) The rule of law is to be announced by the judge and applied by him
or by the jury according to the situation of the case. To this orderly exercise
of functions, the parties litigant are entitled. Hence a witness will not be
15. Beaucage v. Mercer, 206 Mass. 492, 92
X. E. 774 (1910) ; Rice v. James, 193 Mass.
458, 79 N. E. 807 (1907) (recognized and au-
thorized agent ) .
16. Bragan v. Birmingham Ry., Light &
Power Co. I Ala. 1909), 51 So. 30 (consequen-
tial damages) ; Central of Georgia Ry. Co. v.
Keyton (Ala. 1906), 41 So. 918; St. Louis,
etc., R. Co. v. Hall, 71 Ark. 302, 74 S. W.
293 (1903) (fire); Parish v. Baird, 160
X. Y. 302, 54 N. E. 724 (1899); Wilson v.
Southern R. Co., 65 S. C. 421, 43 S. E. 964
(1903) (fire).
17. Whipple v Rich, 180 Mass. 477, 63 N.
E. 5 (1902).
18. Profits. A witness should not be per-
mitted to testify as to what would have been
plaintiffs' profits if they had been allowed to
perform a contract. This is a mere conclu-
sion. He should be confined to a statement
of fact showing what it would cost to do the
work. Hardaway Wright Co. v. Bradley
Bros. (Ala. 1909), 51 So. 21.
19. Campbell, etc., Co. v. Ross, 187 111. 553
58 N. E. 596 (1900); Hollst v. Bruse, 69
111. App
20. State v Babcock, 25 R. I. 224, 55 Atl.
685 (1903).
21. Boyd v. New York Security, etc., Co.,
176 X. Y 556, 613, 68 X. E. 1114 (1903)
( " know of any lien given by you to any
odby " on a certain fund).
22. Chicago, etc., R. Co. v. Kuckkuck, 197
111. 304, 64 N. E. 358 (1902) (enter rail-
road premises ) .
23. Quincy Gas. etc., Co. v. Bauman, 104
111. App. 600, affirmed in 203 111. 295, 67 N.
E. 807 (1902) ; Sheldon v. Bigelow, 118 Iowa
586, 92 X W. 701 (1902) ; Sisson v. Yost,
12 N. Y. Suppl. 373 (1890); Berryhill v.
McKee, 1 Humphr. (Tenn.) 31 (1839).
24. State v. Campbell, 82 Conn. 671. 74 Atl.
927 (1910).
25. Hamilton v. Smith, 74 Conn. 374, 50
Atl. 884 (1902) (boundaries).
26. Arents v. Long Island R. Co., 156 N. Y.
1, 50 N. E. 422 (1898).
27. Boye v. Andrews (Cal. App. 1909) 102
Pac. 551 (''confidential relation").
28. 3 Chamberlayne, Evidence, 2361-
2365.
29. Lightman Bros. & Goldstein v. Epstein
(Ala. 1909), 51 So. 164 (reasonable price):
People v. Xewton, 11 Cal. App 762, 106 Pac.
247 (1909) (officer's opinion as to his duty) ;
Hirch & Co. v. Beverly, 125 Ga. 657, 54 S. E.
678 (1906) (lien).
. 30. Evans v. Dickey, 117 111. 291, 7 N. E.
263 (1886) (employment): Gall v. Dicky,
91 Iowa 126, 58 X. W. 1075 (1894) (forfeit-
ure) ; Western Xat. Bank v. Flannagan, 14
Mi>c. 317. 35 X. Y. Suppl. 84S H895) (au-
thority) ; Dean v. Fuller. 40 PR. St. 474
(1861) (undue influence): Elrod v. Alexan-
der, 4 Heisk, 342 (1871) (contraband).
807 CONCLUSION FROM OBSERVATION; LAW 620
allowed to state the legal effect of documents 31 or of spoken language 32 or the
meaning of contracts. 33
807. [Conclusions of Law] ; When Conclusion is received. 34 Rejection of
the conclusion of a witness as to the meaning of an oral contract is not a neces-
sary outcome of the administrative situation. Should the element of reasoning
involved be slight, the inference one about which reasonable men could not
well differ in opinion, the conclusion of a witness may amount merely to a
shorthand statement of a fact, the constituents of which are obvious. Under
these circumstances, especially where the fact inferred is not intimately con-
nected with the province of the jury, the conclusion may be received. 35
Under recognized conditions, the understanding of a witness as to the effect
of spoken language will be received. The evidence is, of course, admissible
in the absence of objection. 36 Even where the opponent contends that the
conclusion is inadmissible, it may still be admitted.
But the meaning of ordinary English words is a matter of common knowledge
concerning which evidence will be rejected 37 and so of figures 38 or phrases 39
unless they are technical. 40
31. Kankin v. Sharpies, 206 111. 301, 69 N. * 36. Carlisle v. Humes, 111 Ala. 672, 20 So.
E. 9 (1903) (sufficiency of a patent license). 462 (1896).
32. Brown v. Carson, 132 Mo. App 371, 111 37. National Fire Ins. Co. v. Hanberg, 215
S. W. 1181 (1908) (certain persons "admit- 111. 378, 74 N. E. 377 (1905) r net re-
ted"), ceipts").
33. Freeman v. Macon Exch. Bank, 87 Ga. 38. Harris v. Ansonia, 73 Conn. 359, 47
45, 13 S. E. 160 (1891) (indorsement on Atl. 672 (1900).
note). 39. Lawrence v. Thompson, 26 N. Y. App.
34. 3 Chamberlayne, Evidence, 2366- Div. 308, 49 N. Y. Suppl. 839 ( 1898) .
2370. 40. Richard P. Baer & Co. v. Mobile Cooper-
35. Lozier v. Graves, 91 Iowa 482, 59 N. W. age & T tx Mfg. Co. (Ala. 1909), 49 So. 921
285 (1894) ; Frost v. Benedict, 21 Barb. (N. ("mill culls," "shipping culls") ; Garrity v.
Y.) 247 (1855) ; Ives v. Newbern Lumber Co., Catholic Order of Foresters, 148 111. App. 189
61 S. E. 70 (1908). (1909), judgment affirmed 243 111. 411, 99
N. E. 753 (1910).
CHAPTER XXXIV.
JUDGMENTS OF EXPERTS.
Judgments, 808.
an obvious administrative danger field of the expert, 809.
admissibility a question of administration, 810.
illustrative instances of judgments, 811.
medicine, 812.
mining matters, 813.
railroad matters, 814.
trolley and street railways, 815.
808. Judgments. 1 In passing from Conclusions to Judgments a signifi-
cant change occurs. The series of progressive mental operation, which has
been considered in its administrative relation to the so-called " opinion evi-
dence rule, 1 ' Inference, Conclusion, Judgment, has witnessed the gradual in-
volution of the element of Reasoning. As the witness has been permitted to
do more and more of this, the jury have done correspondingly less. At the
same time, part passu, the proportion of t\te element of observation, intuitive
action of the mind upon the presentation of sense perception, has steadily di-
minished. Controlling in the intuitive inference, somewhat less so in the
reasoned one, the influence of Observation has been brought to the vanishing
point in case of the Conclusion. As the field of the Expert. Judgment, is
reached. Observation entirely disappears. The expert observes nothing. His
proper work is that of pure reasoning. Taking the facts as observed by other
witnesses and enumerated by them, it is his function to present to the jury
the 2 proper conclusion which they indicate. To the jury themselves is re-
served the question of credibility, whether the facts detailed to the expert in
the form of a so-called hypothetical question actually exist.
Criminal cases. The law is the same in criminal 3 as in civil cases.
809. [Judgments] ; An Obvious Administrative Danger Field of the Ex-
pert. 4 The plain administrative objection to employing the expert is that his
reasoning has a tendency to supplant that of the jury. Each litigant is en-
titled to insist not only that reason should be applied to the facts of his case,
but also that the application be made by the jury, so far as the latter are com-
1. 3 Chamberlayne, Evidence, 2371. 3. State v. Webb. 18 Utah 441, 56 Pao. 150
2. Nunes v. Perry. 113 Mass. 274 (1873); (1899).
Com. v. Williams, 105 Mass. 62 (1870). 4. 3 Chamberlayne, Evidence, 2372-
2374.
621
810, 811 JUDGMENTS OF EXPERTS. 622
petent for the work. The clear danger that a trial by jury may become one
by experts is regarded with apprehension by judicial administration. A clear
warrant will be required at the hands of the proponent for receiving such testi-
mony. In general, this is found in the technical nature of the reasoning
which is demanded of the witness. .-A countervailing advantage, as compared
with the judicial use of conclusion, is to be placed to the credit of judgment.
An expert may be said to be a skilled witness who testifies upon the basis of
assumed facts stated in a hypothetical question. The definition is confessedly
arbitrary, intended to segregate witnesses who testify from assumed facts as a
class by themselves.
810. Admissibility a Question of Administration. 5 Whether any subject is
so far a matter of science, art or trade, as to afford reasonable ground for be-
lief that the jury will be aided by the opinion of an expert is a preliminary
question for the trial judge. Within limits prescribed by reason, the admis-
sibility of the judgments of experts is a matter of administration. Practically,
this is equivalent to saying that no uniform rule can be laid down upon the
subject.
J
The expert witness was originally called in by the presiding judge to assist
him 6 and the court still has wide control over the number and use of experts.
An adequate forensic necessity must be found for the introduction of the
expert to assist the reasoning powers of the jury, 7 and the testimony must be
relevant both objectively and subjectively. 8 He must have adequate knowledge
and suitably trained reasoning powers 9 and he must do more than hazard a
mere conjecture 10 as in case of claims of speculative damages. 11 He may
augment the force of his opinions by stating his reasons for them. 12
811. Illustrative Instances of Judgments. 13 Among the various instances
of expert testimony it may be expedient to take up for consideration certain
ones which occur most frequently in practice or tend most strongly to illus-
trate the methods of judicial administration in dealing with the subject.
5. 3 Chamberlayne, Evidence, 2375- Missouri. Muller v. Gillick, 66 Mo. App.
2381a. 500 (1896).
6. Buller v. Crips, 6 Mod. 30 (1703). ~New Hampshire. Burnham v. Aver. 36 N.
7. "In matters of science no other witness H. 182 (1858).
can be called." Falkes v. Chadd, 3 Dougl. New York. McKerchnie v. Standish, 6 N.
157, 26 E. C. L. Ill (1782). Y. Wkly. Dig. 433 (1878).
8. Turner v. Cocheco Mfg. Co. (N. H. 1910) Wisconsin. Nichols v. Brabazon, 94 Wis.
77 Atl. 999. 549, 69 N. W. 342 (1896).
9. Mere casual observation, superficial read- 11. Klernochan v. New York El. E. Co.,
ing or slight oral instruction is insufficient 130 N. Y. 651, 29 N. E. 245, 14 L. R. A.
to render one competent as an expert witness 673 (1891), reversing 57 N. Y. Super. Ct.
on a particular subject. Conley v. Portland 434, 8 N. Y. Suppl. 770 (1890).
Gaslight Co., 99 Me. 57, 58 Atl. 61 (1904). 12. Koplan v. Boston Gaslight Co., 177
10. Idaho. Kelly v. Perrault, 5 Ida. 221, Mass. 15, 58 N. E. 183 (1900).
48 Pac. 45 (1897). 13. 3 Chamberlayne, Evidence, 2381b-
2412.
623
EXAMPLES.
811
The correct test is whether, assuming no counteracting danger to be met with,
the court would be aided by the knowledge of the expert. 14 Even in the lim-
ited instances by which this method is illustrated, little by way of uniformity
of decision is to be expected. 15 Agreement upon the fundamental rules by
which administration is guided seems fairly apparent. Which of them, how-
ever, shall be deemed decisive in any particular case may depend much upon
considerations for which it is difficult to make specific allowance.
Experts are commonly used in cases involving technical questions concern-
ing carpentering and building, 10 commercial matters, 17 engineering problems, 18
even every day matters when complicated so that the expert may be helpful ltt
as in regard to crops, 20 stock 21 or farm structures 22 or operations, 23 insur-
ance, whether tire, 24 life 25 or marine, 26 and problems in law, 27 manufactur-
ing, 28 marine ~' J or the mechanic arts. 30
14. Young v. Johnson, 123 N. Y. 226, 25
N. E. 363 (1890).
15. " It is doubtful whether all the cases
can be harmonized, or brought within any
general rule or principle." Muldowney v.
Illinois Cent. R. Co., 36 Iowa 462, 473 (1873).
16. Architects. Benjamin v. Metropolitan
St. R. Co., 50 Mo. App. 602 ( 1892) ; Chamber-
lain v. Dunlop. 5 Silv. Supreme (N. Y.) 98,
8 N. Y. Snppl. 125 (1889).
Builders. Montgomery v. Gilmer, 33 Ala.
116, 70 Am. Dec. 562 (1858) (mason): Bet-
tys v. Denver, 115 Mich. 228, 73 N. \V. 138
(1897) (bridge) ; Cobb v. St. Louis, etc., R.
Co., 149 Mo. 609, 50 S W. 894 (1899)
(bridge) ; Fox v. Buffalo Park. 21 X. Y. App.
Div. 321. 47 X. Y". Suppl. 788 (1897).
17. Moschowitz v. Flint, 33 Misc. (X. Y.)
480, 67 X. Y. Suppl. 852 ( 1900).
18. Egger v. Rhodes (Cal. 1894). 37 Pac.
1037 (civil and hydraulic) .
19. Laughlin v. Grand Rapids St. R. Co.,
62 Mich. 220, 2S X. W. 873 (1886). Whether
leaving a horse unhitched under given con-
ditions is negligent, may be a fit subject for
the judgment of an expert. Stowe v. Bishop.
58 Vt. 498, 3 Atl. 404. 56 Am. Rep. 569
(1886).
20. Van Werden v. Winslow, 117 Mich. 564.
76 X. W. 87 (1898) (celery) ; Lane v. Wilcox,
55 Barb. (X. Y.) 615 (1864).
Diseases of vegetable life. Special skill
and experience may not be required to infer
the existence of a particular form of disease
incident to vegetable life, ^. g., the cause of
the destruction of trees. State v. Main, 69
Conn. 123. 37 Atl. 80 (1897).
21. Oakes v. Weston, 45 Vt. 430 (1873)
(overloading is one of those matters of com-
mon knowledge where an expert is not
needed ) .
22. Armstrong v. Chicago, etc., R. Co.,
45 Minn. 85, 47 N. W. 459 (1890) (stable's
use).
23. The proper time to burn brush is a
matter of common knowledge as to which
the non-expert may speak. Krippner v. Biebl,
28 Minn. 139. 9 X. W. 671 (1881) ; Wells v.
Eastman, 61 X. H. 507 (1881).
24. Joyce v. Maine Ins. Co., 45 Me. 168, 71
Am. Dec. 536 (1858); Luce v. Dorchester
Mut. F. Ins. Co., 105 Mass. 297, 7 Am. Rep.
522 (1870) ; Lyman v. State Mut. F. Ins. Co.,
14 Allen (Mass.) 329 (1867); Morris v.
Farmers' Mut. F. Ins. Co., 63 Minn. 420, 65
X. W. 655 (1896) (steam in threshing) ; Jef-
ferson Ins. Co. v. Cotheal, 7 Wend. (X. Y T .)
72, 22 Am. Dec. 567 (1831) (inclosing a
boiler previously detached ) .
25. The practice of the courts with regard
to expert evidence as to life insurance ques-
tions is practically the same as in those re-
lating to assurance against loss by fire. In
both relations, a double reason may exist for
rejecting the judgment when tendered. ( 1 )
It may relate to a matter of common knowl-
edge which the jury are competent to handle.
(2) The fact may be one of a res gestae or
constituent nature material to the ultimate
action of tb- jury. For example, the expert
will usually be forbidden to state whether
certain facts which the insured has omitted
to mention were material to the risk as-
sumed by the company. Xew Era Assoc. v.
Mactavish (Mich. 1903), 94 X. W. 509.
26. Leitch v. Atlantic Mut. Ins. Co., 66 X.
812
JUDGMENTS OF EXPEBTS.
624:
812. [Illustrative Instances of Judgments] ; Medicine. 31 Medical experts
are often used to help the jury in medical questions 32 when properly qualified. 33
Insanity can only bo shown by a witness specially skilled in mental diseases 34
although a practicing physician may be used where the case is one of the com-
mon variety. is
A medical expert may testify as- to proper human food, 30 as to the effect of
certain occurrences on the body 37 or the cause of mental troubles 38 or the per-
V.. 100 (1876) ; McLanahan v. Universal Ins.
L'o., 1 Pet. (U. S.) 170, 7 L. ed. 98 (1828)
27. Artz v. Robertson, 50 111. App. 27
(1892) (whether services of attorney neces-
sary). Armstrong v. Histeau, 5 Md 256, 59
Am. Dec. 115 (1853) (ejectment).
28. Whitaker v. Campbell, 187 Pa. St. 113,
U Atl. 38 (1898) (latent danger).
29. Ogden v. Parsons, 23 How. (U. S.) 167,
16 L. ed. 410 (1859) (ship has a full cargo) ;
Beckwith v. Sydebotham, 1 Campb. 116, 10
Rev. Rep. 652 (1807). A shipbuilder may be
?alled as a witness to give his opinion of the
seaworthiness of a ship on facts stated by
)thers. Thorton v. Royal Exch. Assur. Co.,
Peake 37 (1790). See Ilfrey v. Sabine, etc.,
K. Co., 76 Tex. 63, 13 S. W. 165 (1890) (size
>f waves ) .
30. Ouillette v. Overman Wheel Co., 162
Mass. 305, 38 N. E. 511 (1894); St. Louis,
>tc., R. Co. v. Farr, 56 Fed. 994, 6 C. C. A. 211
[1893).
Work. The opinion of an expert may prop-
trly be given as to the right method of doing
vork and as to the tools and appliances nec-
(ssary where such matters are not of common
mowledge and could not readily have been
nade intelligible to the jury. Morris v. Wil-
iams, 143 111. App. 140 (1908). One may
five his opinion as to what shell caused a
vound which he has examined where he testi-
ies that he has often used shells of this kind
:nd has observed their effect although he has
lever seen one fired at a human body. Byrd
'. State, 142 Ga 633, 83 S. E. 513, L. R. A.
915 B 1143 (1914).
31. 3 Chamberlayne, Evidence, 2413-
!429.
32. " Medical testimony is of too much im-
lortance to be disregarded. When delivered
rith caution, and without bias in favor of
ithor party, or in aid of some speculation
nd favorite theory, it becomes a salutary
neans of preventing even intelligent furies
rom following a popular prejudice, and de-
iding a cause on inconsistent and unsound
principles. But it should be given with great
care and received with the utmost caution,
and, like the opinions of neighbors and ac-
quaintances, should be regarded as of little
weight if not well sustained by reasons and
facts that admit of no misconstructions, and
supported by authority of acknowledged
credit." Clark v. State, 12 Ohio 483, 491, 40
Am. Dec. 481 (1843).
33. Copeland v. State, 58 Fla. 26, 50 So.
621 (1909). A physician testifying as an ex-
pert must first be shown to be qualified either
by actual experience in similar cases to the
one put to him or by such careful and delib-
erate study as enables him to form a definite
opinion of his own with reference to the
matter under consideration. Hildebrand v.
United Artisans (Or. 1907), 91 Pac. 542. On
a subject as to which there is little or no gen-
eral knowledge like post mortem digestion
the jury must be guided by expert testimony.
Flege v. State, 93 Neb. 610, 142 N. W. 276,
47 L. R. A. (N. S.) 1106 (1913).
34. Arkansas. Green v. State, 64 Ark. 523,
43 S. W. 973 11898).
Delaware. State v. Windsor, 5 Harr. 512
(1851).
Missouri. State v. Wright, 134 Mo. 404,
35 S. W. 1145 (1896)
New York. Matter of Jacott, 2 Silv. Su-
preme 544, 6 N. Y. Suppl. 122 (1889) ; Lake
v. People, 1 Park. Cr. 495 (1954): Peo-
ple v. Thurston. 2 Park. Cr. 49 (1852)
West Virginia. Kerr v. Lunsford, 31 W.
Va. 659, 8 S. E. 493, 2 L. R. A. 668 (1888).
35. People v. Schuyler, 106 X. Y. 298, 12
N. E. 783 (1887) ; Koenig v. Globe Mut. L.
Ins. Co., 10 Hun 558 (1877).
36. Branson v. Turner, 77 Mo. 489 (1883)
(sore on neck of an ox as unfitting it for hu-
man food ) .
37. O'Mara v. Com, 75 Pa. St. 424 (1874)
(flow of blood) .
38. Bliss v. Xew York Cent., etc., R. Co.,
160 .Mass. 447, 36 X. E. 65, 39 Am. St. Rep.
504 (1894) ; Anthony v. Smith, 4 Bosw. (N.
625
EXAMPLES.
813
manence of diseased conditions. 39 The medical witness may not, however,
simply guess at his conclusions, 4 " but may state probabilities based on fact
and experience.
He may also state the cause of death 41 or the symptoms of disease 42 and
what they mean and also of injuries 43 and psychological conditions. 44
The ordinary test in most cases of mental capacity is the ability to transact
ordinary business. 45 The expert medical witness will not, however, be al-
lowed to intrude on ,the province of the jury by stating his judgment on the
legal standard of ability 46 unless the facts are simple so that the expert's
judgment will not be likely to mislead the jury.
The weight of the opinion of the expert witness is likely to be much greater
than that of the ordinary practicing physician 4T and in a peculiar or compli-
cated case the latter will be excluded entirely. 48
813. [Illustrative Instances of Judgments] ; Mining Matters. 49 The busi-
ness of mining furnishes, especially in certain sections, a prominent subject of
litigation. In this connection, much use is necessarily made of the judgments
of those who, in the opinion of the court, are sufficiently qualified by scientific
training or practical experience 50 to aid the deliberations of the jury. Knowl-
Lake, 71 X. H. 90, 51 Atl. 260 (1901) (proper
treatment) .
44. Bever v. Spangler, 93 Iowa 576, 61 N.
W. 1072 (1895) (senile) ; State v. Feltes, 51
Iowa 495, 1 N. W. 755 (1879) (delirium
tremens ) .
45. Poole v. Dean, 152 Mass. 589, 26 N. E.
406 (1891); Torrey v. Burney, 113 Ala. 496,
21 So. 348 (1897); Mayville v. French, 246
111. 434, 92 N. E. 919 (1910); Curtice v.
Dixon (N. H. 1907), 68 Atl. 587.
46. Schneider v. Manning, 121 111. 376, 12
X. E. 267 (1887). An expert medical wit-
ness may be allowed to state a judgment that
the testatrix was insane but not that at a
given time she was incapable of executing a
valid will. Garrus v. Davis, 234 111. 326, 84
X. E 924 (1908).
Y.) 503 (1859); Dejarnette v. Com., 75 Va.
867 (1881).
39. Taylor v. Ballard, 24 Wash. 191, 64
Pac. 143 (1901).
40. Huba v. Schenectady R. Co., 85 X. Y.
App. Div. 199, 83 N. Y. Suppl. 157 (1903).
41. Where no direct evidence exists as to
the actual res gestce of a transaction and inex-
perienced persons might be misled into wrong
conclusions, competent skilled witnesses may
be allowed to testify as to the actual cause of
death but, even here, the inquiry may prop-
erly be limited to what might have produced
this result rather than what actually did so.
Goddard v. Enzler, 123 111. App. 108 (1005),
judgment affirmed 222 111. 462, 78 N. E. 805
(1906).
St. Paul City R. Co., 70
W 157 (1897): Haviland
Suppl. 898
42. Donnelly
Minn. 278. 73 X
v. Manhattan R. Co., 15 X. Y
(1891).
Objective and subjective symptoms.
Where the symptoms detailed to the expert
are only in part subjective, bis judgment on
them may be received. Eckels v. Muttschall,
230 111. 462, 82 X'. E. 872 (1907). A fortiori,
where the basis of the medical opinion is en-
tirely objective it will be admitted. City of
Chicago v. McXally, 227 111. 14, 81 X. E. 23
(1007).
43. Galveston, etc.. R. Co. v. Parrish (Tex.
Civ. App. 1897), 43 S. W. 536; Challis V.
47. Mayville v. French, 246 111. 434, 92 N.
E. 919 (1910).
48. Hutchins v Ford. 82 Me. 363, 19 Atl.
832 (1890); Com. v. Rich, 14 Gray (Mass.)
335 (1859); Russell v. State, 53 Miss. 367
(1876): McLeod v. State, 31 Tex. Cr. 331.
333, 20 S. W. 749 (1892).
49. 3 Chamberlayne, Evidence, 2430-
2434.
50. McXamara v. Logan, 100 Ala. 187, 14
So. 175 (1893) (miner): Hedlum v. Holy
Terror Min. Co., 16 S. D. 261, 92 N. W. 31
(1902).
814
JUDGMENTS OF EXPERTS.
626
edge " entirely theoretical " 51 may not be sufficient upon which to found a sat-
isfactory judgment. The matter is largely one of administration, that is,
within the " discretion " of the trial judge. 52
The testimony may relate to the cause and effect of certain conditions, 53 to
the possibilities of the situation 54 or the propriety 5r> or safety ' ; of certain
operations.
814. [Illustrative Instances of Judgments] ; Railroad Matters. 57 Expert
witnesses are frequently of service as to questions of railroad construction,
equipment and operation. 58 The witness must be shown to have gained hia
experience in a department of railroad affairs involved in the pending in-
quiry. 50
The propriety of railroad construction cu is a proper matter for expert tes-
timony unless the facts are so simple that the jury needs no expert assistance. 61
The railroad expert may state his inference as to the general condition of a
railroad, appliances 62 and their value 3 unless the matter is within the com-
mon knowledge of the jury. 64 He may also state the cause and effect of acci-
dents, 65 the danger of certain railroad operations, 66 the ability of the operating
51. Lineoski v. Susquehanna Coal Co., 157
Pa. St. 153, 27 Atl. 577 (1893).
52. Czarecki v. Seattle, etc., R., etc., Co., 30
Wash. 288, 70 Pac. 750 (1902).
53. Alabama Conaol. Coal & Iron Co. v.
Heald (Ala. 1910), 53 So. 162.
54. Hedlun v. Holy Terror Min. Co., 16 S.
D. 261, 92 N. W. 31 (1902); Sloss-Sheffield
Steel & Iron Co. v. Sharp (Ala. 1908), 47 So.
279 (gas explosion ).
55. McXamara v. Logan, 100 Ala. 187, 14
So. 175 (1893) (cross entries); Smuggler
Union Min. Co. v. Roderick, 25 Colo. 16, 53
Pac. 169, 71 Am. St. Rep. 106 (1898) (car-
rying up a slope) ; Island Coal Co. v. Neal.
15 Ind. App. 15, 42 N. E. 953, 43 N. E.
463 (1896) (propping and capping a roof) ;
Tanner's Adm'r v. W. A. Wickliffe Coal Co.
(Ky. 1908), 32 Ky. Law Rep. 1304. 108 S.
W. 351 (timbering entry).
56. McXamara v Logan, 100 Ala. 187, 14
So. 175 (1893) (width of cross entry in a
coal mine) .
57. 3 Chamberlayne, Evidence, 2435-
2446.
58. Budge v. Morgan's Louisiana, etc., R.,
etc., Co., 108 La. 349. 32 So. 535 (1902):
Seaver v Boston, etc., R. Co., 14 Gray (Mass.)
466 (1860) (machinist); McCray v. Galves-
ton, etc., R. Co.. 89 Tex. 168, 34 S. W. 95
(1896) : Ft. Worth, etc., R. Co. v Thompson.
75 Tex. 501, 12 S. W. 742 (1889) (brake-
man) .
59. Florida East Coast Ry. Co. v. Lassiter
(Fla. 1910), 52 So. !>75.
60. Colorado Midland R. Co. v. O'Brien. 16
Colo. 219, 27 Pac. 701 (1891) (transporting
laborers) ; Galveston, etc., R. Co. v. Pitts
(Tex. Civ. App. 1897), 42 S. W. 255 how it
can be made most safe) ; Guinn v. Iowa &
St. L. R. Co., 125 Iowa 301, 101 N. W. 94
(1905) (ditching).
61. Cattle Guards. Cleveland, etc., R. Co.
v. De Bolt. 10 Ind. App. 174, 37 N. E. 737
(1894); Pennsylvania Co. v. Lindley, 2 Ind.
App. Ill, 28 N. E. 106 (1891).
62. Atchison, etc., R. Co. v. Osborn. 58 Kan.
768, 51 Pac. 286 (1897).
63. Louisville, etc . R. Co. v. Hall, 87 Ala.
708, 6 So. 277, 13 Am. St. Rep. 84, 4 L. R.
A. 710 (18SS) (whipping straps); Mobile <&J
M. R. Co. v. Blakely, 59 Ala. 473, 481 (1877)
(stopping train) .
64. Keller v. New York Cent. R. Co., 2 Abb.
Dec. (X. Y.) 480, 24 How. Pr. (X Y.) 172
(1861) ; Nutt v. Southern Pac. Co., 25 Oreg.
291, 35 Pac. 653 (1894).
65. Brownfield v. Chicago, etc., R. Co., 107
Iowa 254, 77 X. W. 1038 (1899) (broken
axle) ; Seaver v. Boston, etc., R. Co.. 14 Gray
(Mass.) 466 (1860) (derailment): Hoyt v.
R. Co., 57 N. Y. 678 (1874) ; Missouri, etc.,
R. Co. v. Sherman (Tex. App. 1899), 53 S.
W. 38fi (explosion of locomotive) ; Ft. Worth,
etc., R. Co. v. Thompson, 75 Tex. 501, 12 S.
W. 742 (1889).
627
RAILWAYS.
815
force 67 and their proper performance of duty 68 except that familiar railroad
operations may be such that the jury will not need the help of the expert. 69
815. [Illustrative Instances of Judgments] ; Trolley and Street Railways. 70
So in questions involving street railways a witness properly qualified ' l may
testify as to the construction/- equipment '" and operation 74 of such railways.
Reasonableness of regulation. For exam-
ple, the reasonable nature of the given regula-
tion, in view of the practical dangers which
it is intended to prevent, may be stated.
Freemont v. Boston & M. R H., 98 X. Y.
Suppl 179, 111 App. Div. 831 (1906) (coup-
ling cars) .
66. Coins v. Chicago, etc., R. Co., 47 Mo.
App. 173 (1891); Texas & X. O. R. Co. v.
McCoy (Tex. Civ. App 1909), 117 S. W. 446.
67. Louisville, etc., R. Co v. Davis, 99 Ala.
593, 12 So. 786 (1892) (one-armed brake-
man) .
68. Missouri Pac. R. Co. v. Mackey, 33 Kan.
303, 6 Pac. 291 (1885) (firemen); Reeves v.
Chicago, M. & St. P. Ry. Co. (S D. 1909),
123 X. W 498 (position of rear brakeman on
approaching station ) ; St. Louis Southwestern
Ry. Co. of Texas v. Boyd (Tex. Civ. App.
1909), 119 S. W. 1154 (position of switch-
man ) ; Long v. Red River, T. & S. Ry. Co.
(Tex. Civ. App. 1905), 85 S. W. 1048 (brake-
man).
69. Gray v. Chicago, etc., R. Co., 189 111.
400, 59 X. E. 930 (1901); Fordyce v. Low-
man, 62 Ark. 70, 34 S. W. 255 (1896) ; Mul-
downey v. Illinois Cent. R. Co., 36 Iowa 462
(1873).
70. 3 Chamberlayne, Evidence, 2447-
2450.
71. Bliss v. United Traction Co., 75 N. Y.
App. Div. 235, 78 X. Y. Suppl 18 (1902).
72. Carpenter v. Central Park, etc., R. Co.,
4 Daly (X. Y'.) 550, 11 Abb. Pr. X S. (N.
Y.) 416 (1872).
73. Fisher v Waupaca Electric Light & Ry.
Co., 141 VVis. 515, 124 N. VY. 1005 (1910);
Richmond & P. Electric Ry. Co. v. Rubin,
102 Va. 809, 47 S. E. 834 (1904).
74. Koenig v. Union Depot R. Co.. 173 Mo.
698, 73 S. \V. 637 (1903) (failure to stop
car ) ; Xolan v. Newton St. Ry. Co., 206 Mass.
384, 92 N. E. 505 (1910) (operating particu-
lar form of controller).
CHAPTER XXXV.
HYPOTHETICAL QUESTIONS.
The hypothetical question, 816.
Conclusion and judgment, 817.
Form of question, 818.
Must include all facts essential to some relevant hypothesis, 819.
must include all undisputed material facts, 820.
facts must be plausibly proved, 821.
general assumptions, 822.
administrative details, 823.
816. The Hypothetical Question. 1 Under the nomenclature adopted in the
present treatise, the expert and the Hypothetical Question are intimately con-
nected. A skilled witness who testifies in answer to such a form of inter-
rogatory is defined as being an expert. Conversely, the only proper form of
interrogating an expert is by means of the hypothetical question. As used in
the law of evidence, this form of inquiry is one which assumes the existence
of certain facts to have been established by the evidence 2 and asks a witness
skilled in the relevant science, art, trade or calling, what the proper inference
from them is. 3 In other words, it is admirably designed, when properly
handled, to supplement the reasoning powers of the jury on matters with which
they are not familiar, while leaving them entirely free to find the truth of the
facts themselves. 4 Whether the circumstances which the proponent postulates
are actual existences, the expert makes no attempt to decide. To draw that in-
ference is within the province of the jury alone.
The necessity which administration experiences for admitting the hypo-
thetical question, so called, is an obvious one. To permit the witness to con-
clude from the evidence what facts are established as true would be to place
him in the seat of the jury.
817. Conclusion and Judgment. 5 The distinction between Conclusions and
Judgments, as these terms are employed in the present treatise, is well marked.
1. 3 Chamberlayne, Evidence, 2451- ask a question based thereon, and not to ask
2453. a question in the form of a recitation of
2. Com v. Buhnis, 107 Pa. St. 542, 47 Atl. actual facts. Shau^hnessy v. Holt, 236 111.
748 (1901). 485, 80 X. E. 256 (1908). Propriety of hypo-
3. CJillman v. Media, M. A. & C. Electric thetical questions, see^ note. Bender ed., 97
Ry. Co., 224 Pa. 267, 73 Atl. 342 (1909). N. Y. 507. Sufficiency of hypothetical ques-
4. The proper practice in examining an tions, see note, Bender ed., 121 N. Y. 250.
expert is to state hypothetically the case 5. 3 Chamberlayne, Evidence, 2454-
which it is believed has been proved, and to 2458.
628
629 FOKM. 818
In proportion as the element of observation is large, and that of reasoning
small, the statement of a witness is one of fact and readily admissible. As the
admixture of reasoning increases, however, the line of Conclusion is reached,
the matter being one of imperceptible gradations. From the work of the expert
the element of observation is eliminated. A judgment, as has been said, is an
act of pure reasoning, unaffected by the intuition of sense-perception.
There is a certain loss of probative force in dropping entirely the element
of observation as is done in case of Judgment and this has led in many juris-
dictions to the use of the mixed hypothesis based on both observation and
hypothesis," based in some cases in part on real evidence present in court, 7 but
the answer cannot be based in part on facts outside the evidence intro-
duced. 8
818. Form of Question. 9 The hypothetical question being in aid of the
reasoning of the jury, its form has been largely affected by the action of the
courts in individual cases. Essentially considered, the form of this species of
interrogatory is a matter of administration. 10 Much indulgence, not to say
laxity, has been permitted in this respect. 11 In certain jurisdictions, however,
a standard form has become established in practice, from which variations are
permitted only upon good cause being shown. Speaking generally, the great
weight of authority is simply to the effect that the question addressed to the
expert should contain the facts proved by the evidence upon which his judg-
ment is to be based 12 or any portion of them relied on by the proponent. 13 It
is axiomatic that only relevant facts may be enumerated in a hypothetical
6. People v. Koerner, 191 N. Y. 528, 84 18 X. Y. 534. Expert not base opinion upon
X. E. 1117 (1908). testimony of another witness, see note, Ben-
7. McJuerty v. Hale, 161 Mass. 51, 36 X. tier ed., 136 X. Y. 12. Admissibility of expert
E. 682 (1804) (whether certain person in testimony specific instances, see note, Ben-
court is a suitable person to work on a cer- der ed., 108 X. Y. 60, 68.
tain machine) . 9. 3 Chamberlayne, Evidence, 2459-
8. Raub v. Carpenter, 187 U. S. 159, 23 2463.
S. Ct. 72, 47 L. ed. 119 (1902). 10. Missouri & X. A. R. Co. v. Daniels
Observer. Where the functions of the ex- (Ark. 1911), 136 S. W. 651 Scurlock v. City
pert and the observer are united or, to speak of Boone (Iowa 1909), 120 X. VV. 313.
more properly, where a skilled observer tes- Facts added. It has been said that the
tines also as an expert, he will not, as a administrative power of the court in regulat-
rule, be permitted to take as part of the basis ing the form of the question does not extend
of his judgment as called for by the hypo- so far as to permit the witness to include as
thetical question facts of observation which part of the basis of his answer facts which
he is not called upon to enumerate. Such a he has gleaned elsewhere than from the hypo-
witness, for example, will not be permitted to thetical question itself Cobb v. United En-
form his opinion " from all the evidence you gineering & Contracting Co., 191 X. Y. 475.
had before you there at that time." Foster 84 X. E. 395 ( 1908 ) .
v. F. & C. Co., 99 Wis. 447. 75 X. W. 69 11. Jones v. R. Co., 43 Minn. 281, 45 X. H.
(1898). The hypothetical form of interroga- 444 (1890).
tion may, however, be required in such cases. 12. Barber's Appeal, 63 Conn. 393, 27 Atl.
Green v. Water Co.. 101 Wis. 258. 77 X. W. 973. 22 L R. A. 90 (1893).
722 (1898). Expert evidence which is merely 13. Chicago & E. I. R. Co. v. Wallace, 202
speculative inadmissible, see note, Bender ed., 111. 129, 66 N. E. 1096 (1903).
819 HYPOTHETICAL QUESTIONS. 630
question. 14 Those .whose relevancy is slight, whose bearing is remote, will
seldom be received. 15 For still stronger reasons, facts of no relevancy what-
ever are rejected. 16
Substantial correctness required. The evidence need not be precisely the
same as the facts incorporated in a hypothetical question to an expert. It is
sufficient if the question represents, in its enumeration of facts, the evidence
with substantial correctness. 17 .
The typical interrogatory to the expert, as to what, assuming certain facts
detailed in evidence to be true, his judgment upon them would be, is readily
moulded by the administrative power of the court to meet the exigencies of
particular cases. 18 Should no rational ground appear for believing that the
jury have been misled, a wide variety of forms will be deemed permissible, 19
the error, if any, involved in their use, being regarded as harmless. The hypo-
thetical question addressed to the expert should contain such an enumeration
of facts as will enable him to form them into a reasonable act of judgment. 20
In other words, it follows from the nature and office of the hypothetical ques-
tion that sufficient facts must be placed before the expert to make it possible
for him to form an opinion which will be rationally helpful to the jury. 21
Conjecture or mere speculation must be excluded. 22 Whatever may be the
facts assumed in the question to be true, the answer of the witness is neces-
sarily limited to and based upon them. 23
819. [Form of Question] ; Must include all facts essential to some relevant
Hypothesis. 24 Should no rule as to the form of the hypothetical question be
established in a given jurisdiction, it may fairly be said that, speaking gen-
erally, the interrogatory must include all facts essential to some aspect or part
14. Rivard v. Rivard, 109 Mich. 98, 66 N. 21. Van Wycklen v. Brooklyn, 118 N. Y.
W. 681, 63 Am. St. Rep. 566 (1896); Neu- 424, 24 N. E. 179 (1890).
deck v. Grand Lodge A. O. U. W., 61 Mo. App. 22. Illinois Silver Min., etc., Co. v. Raff, 7
97 (1894); Dilleber v. Home L. Ins., 87 N X. 1 36, 34 Pac. 544 (1893) ; Galbraith v.
Y. 79 (1881). It follows that it is not com- Philadelphia Co., 2 Pa. Super. Ct. 359 (1896).
petent upon the examination of a medical 23. Rio Grande Western R. Co. v. Ruben-
expert to inquire of him with respect to the stein, 5 Colo. App. 121, 38 Pac. 76 (1894).
meaning of terms applicable to an injury not Practical Suggestions. Counsel should be-
Bhown to have been sustained. City of Chi- fore going to court be sure he has in mind the
cago v. Carlson, 138 111. App. 582 (1908). exact form of hypothetical questions per-
15. Carter Rice & Co. v Aubin, 172 Fed. mitted in his jurisdiction. In the celebrated
916, 97 C. C. A. 274 (1909) (too general). Thaw murder case in New York the hypo-
16. People v. Harris, 136 N. Y. 423, 33 N. thetical question asked the medical experts
E. 65 ( 1893) . amounted to a digest of the evidence and took
17. Kemendo v. Fruit Dispatch Co. (Tex. some hours to read. The District Attorney
Civ. App. 1910), 131 S. W. 73 had all his experts sworn at once and then the
18. Choice v. State, 31 Ga. 468 (1860). question was read to them all together and
19. Kempsey v McGinness, 21 Mich. 139 they were then asked to give their answer.
(1870); McCollum v. Seward, 62 N. Y. 318 24. 3 Chamberlayne, Evidence, 2464-
(1875). 2466.
20. Berry v. Baltimore Safe Deposit, etc.,
Co., 96 Md. 45, 53 Atl. 720 (1902).
631 FORM. | 8^0,821
of the hypothesis maintained by its proponent 25 or tend to prove the existence
of some separate fact included in it. 2 * 5
hi some states the question may be based on the whole or any part of the
facts. 27
820. [Form of Question] ; Must include all undisputed material Facts. 28
To certain courts it has seemed unduly lax administration to permit a pro-
ponent to put to the expert any question which he regards as calculated to
elicit the appropriate reasoning in aid of some particular branch of his hypoth-
esis, provided only, he is able to show that there is some rational evidence in
favor of the facts upon which it is based. So wide an indulgence has been
thought likely to mislead the jury and to prejudice the interests of justice.
In the view of the courts which entertain this opinion, a more suitable question,
one better designed to make the skill of the expert conducive to the attainment
of its highest usefulness, would include all material facts, not controverted, by
whomever introduced into evidence regardless of the respective hypotheses of
the parties. 29
821. [Form of Question] ; Facts Must Be Plausibly Proved. 30 In order
that a fact may be admitted into the enumeration as part of a hypothetical
question, it must be so far established in the evidence that a jury might 31
rationally find that it existed. 32 A tendency to prove a fact will, if exhibited
by the evidence, be sufficient for admissibility. 33 The trial court cannot ar-
25. People v. Krist, 168 X. Y. 19, 60 X. E. In Indiana the question may assume dis-
1057, 15 X. Y. Cr. 532 ( 1901) . puted facts to be as claimed by the proponent
26. Gottlieb v. Hartman, 3 Colo. 53 (1876) : of the question. Nave v. Tucker, 70 Ind. 15
McDonald v. Illinois Cent. R. Co., 88 Iowa (1880).
345. 55 X. W. 102 (1893). 30.3 Chamberlayne. Evidence, 2472-
27. The facts enumerated must be " within 2479.
the possible or probable range of the evi- 31. Something must be left to the presiding
dence." Harnett v. Garvey, 66 X. Y. 641 judge. Oliver v. R. Co., 170 Mass. 222, 49
(1876). Hypothetical questions to an expert X. E. 117 \ IS:,. , .
need not cover all the undisputed facts in the 32. McLean v. Lewiston, 8 Ida. 472, 69 Pac.
case but if any are omitted the remedy is for 478 (1902) ; Kelly v. Perrault, 5 Ida. 221,
the other side to repeat the questions with 48 Pac. 45 (1895) ("tends to prove," " con-
the omitted facts included State v. An- jecture " excluded).
gelina, 73 W Va. 146, 80 S. E. 141. 51 L. R. 33. Taylor v. McClintock (Ark. 1908). 112
A. (X T . S.) 877 (1913). , S. W. 405: Spiers v. Hendershott (Iowa
28. 3 Chamberlayne, Evidence, 2467- 1909), 120 X T . W. 1058; Carr v. Locomotive
2471. Co. (R. I. 1908). 70 Atl. 196. Technical ac-
29. Levinson v. Sands, 81 111. App. 578 curacy is not required. Long Distance Tele-
1898); Smith v. Minneapolis St. R. Co, 91 phone & Telegraph Co. v. Schmidt (Ala.
Minn. 239, 97 X. W. 881 (1904); State v. 1908) . 47 So. 731. The hypothetical question
Thompson, 153 X". C. 618, 69 S. E. 254 (1910). may properly contain "any state of facts
The same rule is laid down in Kansas which the evidence directly, fairly, and rea-
[ Wichita v. Coggshall, 3 Kan. App. 540. 43 sonably tends to establish or justify." De^
Pac. 842 (1890)] and Missouri. Mammer- ver & R. G. R. Co. v. Roller, 41 C. C. A. 2
berg v. Metropolitan St. R. Co., 62 Mo. App. 100 Fed. 738 (1900).
563 (1895).
822 HYPOTHETICAL QUESTIONS. 632
bitrarily exclude a question on the assumption that the fatts on which it is
based are not fully proved. 34
This rule applies at every stage of the proceedings, 35 although new facts may
be brought out in cross-examination. 30 Controverted facts may be included 3T
and the exclusion of immaterial facts is not fatal to the regularity of the pro-
ceedings. 38 The facts must be proved by legal evidence ;i9 whatever its
weight 40 and even facts admitted de bene may be included. 41 The witness
may however be tested by asking him any questions if permitted by the court
whether supported by the evidence or not. 42
822. [Form of Question] ; General Assumptions. 43 The temptation pre-
sented to judicial administration to permit the use of general expressions
which may do away with the detailed narration of facts in a hypothetical ques-
tion is undoubtedly a strong one. The enumeration of minute facts claimed
by the proponent to have been established by the evidence is, in many instances,
greatly consumptive of time. The presiding judge, in such cases, seldom be-
comes unconscious of the fact that it is an important part of his administrative
duty to expedite trials. The burden of preparing and putting the hypothetical
question in its unobjectionable form apparently presses at times upon counsel,
as a monotonous hardship. These considerations, as well as others, lend force
to the suggestion of permitting the witness to give his opinion, more or less
completely, upon some general reference to the evidence, with which all persons
connected with .the trial are familiar or upon some broad assumption as to
what the evidence proves.
Hence courts have sometimes permitted expert witnesses to be asked their
34. Galveston, H. & S. A. Ry. Co. v. Powers Hagadorn v. Connecticut Mut. L. Ins. Co.,
(Tex. Civ. App. 1909), 117 S. W 459. 22 Hun (N. Y.) 249 (1880).
35. Conway v. State, 118 Ind. 482, 21 N. E. A single witness is sufficient to establish,
285 (1888). in most cases, the existence of a fact. Nolan
36. People v. Schuyler, 106 N. Y. 298, 12 v. Newton St. Ry. Co., 206 Mass. 384, 92 N. E.
N. E. 783 ( 1887 ) . Where, however, the range 505 ( 1910) .
of cross-examination is limited to testing the 40. Oliver v. North End St. R. Co., 170
statements of the witness made upon direct Mass. 222, 49 N. E. 117 (1898).
examination the interrogation of experts will 41. As the supreme judicial court of Massa-
be restricted in a similar way Carr v. Amer- chusetts says, he " in many cases must rely
ican Locomotive Co. (R. I. 1908), 70 Atl. 196; to a great extent upon the good faith of
Hussong Dyeing Mach. Co. v. Philadelphia counsel in their statements as to what they
Drying Machinery Co, 173 Fed 236 (1909). expect the evidence will be." Anderson v.
37. Bourbonnais v. West Boylston Mfg. Co., Alberstamm, 176 Mass. 87, 57 N. E. 215
184 Mass. 250, 68 X. E. 232 (1903). (1900). See also Delaney v. Framingham
38. Frankfort v. Manhattan R. Co., 12 Gas Fuel & Power Co.. 202 Mass. 359, 88 N.
Misc. (N. Y.) 13, 33 X. Y. Suppl. 36 (1895) : E. 773 (1909).
Stearns v. Field, 90 N. Y. 040 (1882); Cow- 42. Williams v. Great Xorthern R. Co.. 68
ley v. People, 83 N. Y. 470 (1880). Minn 55, 70 N. W. 860, 37 L. R. A. 199
39. In re James, 124 Cal. 053, 57 Pac. 578, (1897).
1008 (1899): Sauntman v. Maxwell, 154 Ind. 43. 3 Chamberlayne, Evidence, 2480-
114, 54 N. E. 397 ( 1899) : State v. Hyde (Mo. 2487.
1911), 136 S. W. 316 (implied hearsay);
633
FORM.
823
judgment " upon the evidence " 44 in the case where tne facts are few and
unambiguous 45 and the witness has heard all the evidence. 46 The weight of
authority however seems against the practice 4T as it is impossible to know
whether the jury believes the facts detailed in the testimony and there is no
way of knowing whether the case on which the opinion was given was the same
as that found by the jury. 48 Other indefinite assumptions 49 as the recollection
of the witness of what another witness has stated 50 cannot be used as the basis
for the opinion of the expert.
823. [Form of Question] ; Administrative Details. 51 The court should
exercise its administrative powers to prevent the introduction into the evi-
dence of irrelevant facts 52 or questions of undue complexity and length 53 or
which are unfair to the witness 54 or inaccurate. 55 Misleading questions are
also to be avoided which overstate or understate the evidence 56 or omit ma-
terial facts 57 or are ambiguous 58 or argumentative 59 or tend to give color
44. " An expert witness cannot be asked to together, when they are very complicated or
give an opinion founded on his understanding involve much detail." Howes v. Colburn, 165
of the evidence, against the objection of the Mass. 385, 388, 43 N. E. 125 (1896).
other party, except in cases where the evi- 54. Kahn v. Triest-Rosenberg Cap. Co., 139
dence is capable of but one interpretation." Cal. 340, 73 Pac. 164 (1903) ; Baltimore Safe
Stoddard v. Winchester, 157 Mass. 567, 575.
32 N. E. 948 (1893).
45. Schneider v. Manning, 121 111. 376, 12
N. E. 267 (1887).
46. State v. Privitt, 175 Mo. 207, 75 S. VV.
457 (1903).
47. Illinois Cent. R. Co. v. McCollum, 130
111. App. 267 (1906).
48. U. S. v. McGlue, 1 Curtis C. C. 1 ( 1851) .
49. What he has heard of the case.
Champ v. Cob., 2 Mete. (Ky.) 27 (1859);
Connell v. McXett, 109 Mich. 329, 67 N. W.
344 (1896); Malynak v. State. 61 N. J. L.
562, 40 Atl. 572 (1898): Sanchez v People.
22 X. Y. 154 (1860) ; Lake v. People. 1 Park
Cr. C. 557 (1854). The question has. how-
ever, been received. Swanson v. Mellen. 66
Minn. 486, 69 X. W. 620 (1897): State v.
Privitt (Mo. 1903), 75 S. \V. 457: State v.
Hayden, 51 Vt. 299. 306 (1878) .
50. People v. Bowen (Mich. 1911), 130 X
W 706, 18 Detroit Leg. X 201 ; Bedford Belt
R. Co. v. Palmer, 16 Ind. App. 17. 44 X. E.
686 (1896) : Tibbitts v. Phipps, 30 X. Y App.
Div. 274. 51 X. Y Suppl. 054 (1898).
51. 3 Chamberlayne, Evidence. 2488-
24fl7.
52. Rusohenberjj v. Southern Electric R.
Co.. 161 Mo. 70. 61 S. W. 626 (1901).
53. Forsyth v. Doolittle. 120 U. S. 73. 78.
7 S. Ct. 408, 30 L. ed. 586 (1887) "It
might be wiser to exclude such questions al-
Deposit, etc., Co. v. Berry, 93 Md. 560, 49
Atl. 401 ( 1901 ) ; Dallas Consol. Electric St.
R. Co. v. Rutherford (Tex. Civ. App. 1904),
78 S. W. 558; Brown v. Third Ave. R. Co.,
19 Misc. (N. Y.) 504, 43 N. Y. Suppl. 1094
(1897).
55. Some blending of inaccuracy in restat-
ing the effect of the evidence for the pur-
poses of the hypothetical question may well be
tolerated in the absence of proof of prejudice
Atlanta R., etc., Co. v. Monk, 118 Ga. 449, 45
S. E. 494 (1903) ; Turnbull v. Richardson, 69
Mich. 400; 37 X. W. 499 (1888) ; Thompson
v. Knickerbocker Ice Co., 6 X. Y. Suppl. 7
(1889).
56. It has even been held that where a
question embraces a single material fact of
which there is no evidence it should be ex-
cluded. Xorthern Cent. Ry. Co. v. Green, 112
Md 487, 76 Atl. 90 (1910) ; State v Hanley,
34 Minn. 433, 26 X W. 397 (1886) : El Paso
Electric Ry. Co. v. Bolgiano (Tex. Civ. App.
1908). 109 S W. 388.
57. Davis v. State. 38 Md. 40, 44 (1873);
Hand v. Brookline. 126 Mass. 326 ( 1879) .
58. Horton v. U. S., 15 App. Cas. (D. C.)
310 (1899) ; Baltimore Safe Deposit, etc. Co.
v. Berry. 93 Md. 560, 49 Atl. 401 (1901)
(" misconception ") .
59. Taylor v. McClintock I Ark 1908). 112
S. W. 405: Houston & T. C. R. Co. v. John-
son (Tex. Civ. App. 1909), 118 S. W. 1150.
823
HYPOTHETICAL QUESTIONS.
634
to the evidence 60 or which state a controverted fact as if it were proved. 61
The province of the jury as the final arbiters of the facts must be protected
and the expert will not for example be allowed to state how far the evidence
tends to prove any fact in controversy. e2 As the receipt of hypothetical ques-
tions is an administrative matter the action of the trial court will oe sustained
unless it is unreasonable or an abuse of the discretion of the court. 03 Failure
to object to the form of the question at the time will be deemed a waiver. 64
60. Slaughter v. Heath, 127 Ga. 747, 57
S. E. 69 (1907).
61. Chalmers v. Whitmore Mfg. Co., 164
Mass. 532, 42 N. E. 98 (1895).
62. Ringlehaupt v. Young, 55 Ark. 128, 17
S. W. 710 (1891) ; Barber's Appeal, 63 Conn.
393, 27 Atl. 973, 22 L. R. A. 90 (1893);
Walker v. Fields, 28 Ga. 237 (1859) ; Texas
Brewing Co. v. Walters (Tex. Civ. App. 1897),
43 S. W. 548. An expert witness may be
asked to give his opinion on certain facts set
out in a hypothetical question although they
involve the issues in the case as the jury are
not obliged to accept as true the facts set out
in the hypothetical question. Jones v. Cald-
well, 20 Idaho 5, 116 Pac. 110, 48 L. R. A.
(N. S.) 119 (1913).
63. Pensacola Electric Co. v. Bissett (Fla.
1910), 52 So. 367.
64. Ragland v. State, 125 Ala. 12, 27 So.
983 (1899) ; Howland v. Oakland Consol. St.
R. Co., 115 Cal. 487, 47 Pac. 255 (1896).
CHAPTER XXXVI.
PROBATIVE FORCE OF REASONING.
Element of observation, 824.
how weight is tested; detail of preliminary facts, 825.
qualifications of witness, 826.
Inferences tested; when tests are applied, 827.
Probative force of inferences from observation; stage of rebuttal, 828.
Probative force of judgments; how enhanced; use of text-books, 829.
how tested on cross-examination, 830.
stage of rebuttal, 831.
Use of standard treatises; deliberative effect, 832.
Weight of inferences; a question for the jury, 833.
reason essential and sufficient, 834.
comparison between inferences from observation and reasoning from
assumptions, 835.
Weight of judgments; a field of conjecture, 836.
824. Element of Observation. 1 In ascertaining the probative force to be
accorded to the statement of a witness based directly upon observation the court
and jury will be apt to have in mind certain obvious considerations. Prominent
among these, is the circumstance that the statements and other acts of a wit-
ness, indeed of anybody, are judicially regarded as trustworthy in proportion
as they are involuntary. With the entrance of volition, is thought to come the
operation of self-interest, reflections as to how proposed conduct will effect a
certain end.
Adequate Knowledge. In the second place the test of adequate knowledge
on the part of the witness juay always be applied, equally by judge or jury.
'' The extent of the witness's acquaintance with the subject may always be
inquired into, to enable the jury to estimate the weight of his evidence.''
Mental Powers. Aside from the general confidence which administration
reposes in the accuracy of intuitive 'observation, it may be said of statements
of fact when compared to those in which the proportion of reasoning is high,
that perhaps the most essential point in connection with estimating the proba-
tive force of results of perception is that the opportunities for observation are
much more carefully to be scrutinized than are the mental powers of the
observer. In the case of Conclusion and Judgment, the reverse is more
nearly true.
1. Chamberlayne, Evidence, 2499.
635
825,826
PROBATE FOECE OF REASONING.
636
825. [Element of Observation] How Weight is Tested; Detail of Preliminary
Facts. 2 As frequently observed in connection with the element of observation
in its various aspects previously considered, a most valuable aid in determining
the probative force 3 properly to be accorded to the mental result lies in the
enumeration by the witness of such of the facts at the basis of his inference as
admit of effective individual statement. 4 Any facts which tended to fix the
attention of the witness, 5 his opportunities for observation 6 and his mental
powers of observation 7 can be shown and he may be tested by the inferences
of other observers 8 or by showing the possibility of different causes for the
results noticed. 9
826. [Element of Reasoning; How Weight is Tested] ; Qualifications of Wit-
ness. 10 An unquestionably sound proposition is to the effect that the eviden-
tiary weight of the judgment of a skilled witness is largely dependent upon
qualifications possessed by him, his knowledge of the facts and principles of
his art, the skill and experience which he has acquired and the experiments or
researches which he has made. 11 The qualifications of a skilled witness may
be affirmatively established and the probative force of his act of reasoning
directly enhanced by the indorsements of his skill and ability given by others 12
including experts. 13 The witness may also be tested by showing his general
knowledge 14 or lack of it 15 and the reasoning powers of the witness, whether
2. Chamber layiie, Evidence, 2500.
3. "The qualification that the opinion of
the non-expert must be accompanied by a
statement of the facts on which it is based
is not very important; since, whether the wit-
ness be an expert or a non-expert, the grounds
of his belief and his opportunities of observa-
tion may always be elicited; and, whether the
witness be of the one class or the other, his
testimony should be rejected by the Court,
where it consists of a mere naked declaration
of opinion with neither learning, observation,
nor acquaintance to support it." Wood v.
State, 58 Miss. 743 (1881), per Chalmers,
C. J.
4. Scott v. Hay, 90 Minn. 304, 97 N. W.
106 (1903).
5. ' Is your recollection refreshed, or your
attention called to that from any circum-
stance, any accident that happened there?"
O'Hagan v Dillon, 76 N. Y. 170, 173 (1879).
6. Columbus & R. R. Co. v. Christian, 97
Ga. 56, 25 S. E. 411 (1896).
7. McGuerty v. Hale, 161 Mass. 51, 36 N.
E. 682 (1894) ; Gahagan v. R. Co., 1 All. 190
(1861): Frazier v. R. Co., 38 Pa. 104, 111
(1860).
8. Connecticut Mut. L. Ins. Co. v. Ellis, 89
111. 516 (1878).
9. People v. Knight (Cal. 1895), 43 Pac.
6: Com. v, Mullins. 2 Allen (Mass.) 29".
(1861): Bathrick v. Detroit Post, etc., Co,
50 Mich. 629, 16 N. W. 172, 45 Am. Rep. 63
(1883).
10. Chamberlayne, Evidence, 2505.
11. Carr v. Northern Liberties, 35 Pa. St.
324, 78 Am. Dec. 342 (1860) : State v. Ward,
39 Vt. 225 (1867).
12. Tullis v. Kidd, 12 Ala. 650 (1847)
(physician).
13. State v. Maynes, 61 la. 120, 15 N. W.
864 (1883); Martin v. Courtney, 75 Minn.
255, 77 N. W. 813 (1899) ; Laros v. Com., 84
Pa. St. 200 (1877).
This practice seems objectionable to some
courts as being confusing and likely to con-
fuse the issue. Birmingham R. & E. Co. v.
Ellard, 135 Ala. 433. 30 So. 276 (1903) : De
Phue v. State, 44 Ala. 32 (1870); Tullis v.
Kidd, 12 Ala. 648 (1847); Foroheimer v.
Stewart, 73 Iowa 216, 35 N. W. 148 (1887) ;
Brabo v. Martin, 5 La. 177 (1832) (confus-
ing the issues)'.
14. People v. Youngs, 151 N. Y. 210, 45
N. E. 460 (1896).
15. Washington v. Cole, 6 Ala 214 (1844).
637 TESTS. 827
unskilled or expert 16 and by showing also what facts the witness is using in
addition to those in evidence as the basis of his inferences or 'his judgments. 17
Common knowledge is the basis for the inferences of the unskilled observer 18
while the expert witness measures the enumerated facts in terms of his art.
827. Inferences Tested; When Tests are Applied. 19 As a matter of ad-
ministration, tests are applied to probative force, occasionally at the stage of
voir dire, more often at that of cross-examination-in-chief. The normal range
of the examination is subject, in the usual way, to the administrative power
of the judge 20 and is as extensive as is permitted by the regular rule of prac-
tice which obtains in the particular jurisdiction. 21 Speaking generally, within
these double limitations, the range permitted is a wide one. 22 Thus, where
this rule of practice or procedure limits the cross-examination to the points
investigated or referred to in connection with the direct examination of the
witness and does not allow the adverse party to cross-examine him for the pur-
pose of eliciting facts in support of his own affirmative hypothesis, the same
limitation is imposed upon counsel who cross-examine with regard to the
probative force of an act of reasoning. 23 Thus cross-examination may cover
the damages, 24 the knowledge of the witness, 25 provided it is not calculated to
mislead the jury, 26 or his qualifications. 2 ' Cross-examination as to credit may
go to great lengths 28 even using the testimony in other suits, 29 and the cross-
examining counsel has a substantive right to test the expert by hypothetical
questions based on his view of the facts 30 or even on imaginary facts. 31
16. State v. Kelly, 77 Conn. 266. 58 Atl. 25. Lake v. People, 1 Park. Cr. (N. Y.)
705 (1904). 495 (1854).
17. Batten v. State, 80 Ind. 394 (1881) ; 26. McMahon v. Chicago City Ry. Co., 239
Graham v. Pennsylvania Co., 139 Pa. St. 149, 111. 334, 88 N. E. 223 (1909).
21 Atl. 151, 12 L. R. A. 293 (1891). 27. Birmingham R., etc., Co. v. Ellard, 135
18. Chicago, etc., R. Co. v. Truitt, 68 111. Ala. 433, 33 So. 276 (1902); Davis v. State,
App. 76 (1896) (gate). 35 Ind. 496, 9 Am. Rep. 700 (1871); Hutch-
19. Chainberlayne, Evidence, 2510. inson v. State, 19 Nebr. 262, 27 N. W. 113
20. Carr v. American Locomotive Co., 26 (1886).
R. I. 180. 58 Atl. 678 ( 1904) (valve stem). 28. Alabama Great Southern R. Co. v. HiH,
Imaginary questions. Expert witnesses 93 Ala. 514, 9 So. 722, 30 Am. St. Rep. 65
may be cross-examined on purely imaginary (1890).
and abstract questions, in order to get their 29. Brooks v. Rochester R. Co., 10 Misc.
opinions on all the possible theories of the (X. Y.) 88, 31 N. Y. Suppl. 179 (1894).
case, and that the value and accuracy of their 30. Louisville, etc., R. Co. v. Lucas. 119
opinions may be fairly tested. Parrish v. Ind. 583, 21 N. E. 968, 6 L. R. A. 193 ( 1889) ;
State, 139 Ala. 16, 36 So. 1012 (1904). Conway v. State. 118 Ind. 482, 21 X. E. 285
21. Maure v. Gould & Eberhardt (X. J. (1889): Louisville, etc., R. Co. v. Wood. 113
190o), 60 Atl. 1134 (1905). Ind. 544. 14 X. E. 572, 16 X. E 197 (1888);
22. McMahon v. Chicago City Ry. Co., 239 Louisville, etc., R. Co. v. Falvey. 104 Ind.
111. 334, 88 X. E. 223 (1909) ("interest). 409. 3 X. E. 389. 4 X. E. 908 (1886) : Davis
23. Amos v. State. 9f> Ala. 120, It So. 424 v. State, 35 Ind. 496. 9 Am. Rep. 760 (1871) :
(1891) : Gridleyv. Bogus. 62 Cal. 190 (1882) : Kearney v. State, 68 Miss. 233. 8 So. 292
Rice v. Des Moine*. 40 Iowa 638 (1875). (1890): People v. Thurston, 2 Park. Cr.
24. Barry v. Second Ave. Pv. Co., 1 Misc. (X. Y.) 49 (1852).
(N. Y.) 502, 20 X. Y. Suppl. 871 (1892). 31. Bever v. Spangler, 93 Iowa 576. 61 N.
828, 829 PROBATE FORCE OF SEASONING. 638
828. Probative Force of Inferences from Observation; Stage of Rebuttal. 32
In using the tests as to the probative force of observation which are created by
cross-examination, the adverse party is, as a matter of course, frequently en-
gaged in securing material for an effective rebuttal. When this stage arrives
for him, the opponent may properly follow up his attack upon the probative
force of an adverse inference through the breaches which his cross-examination
may be supposed to have created. In respect to the force of observation, the
adverse party may show, if he can, that the witness did not, in point of fact,
observe correctly. A fortiori, he is at liberty to establish that the alleged
observer, by reason of his physical condition, 33 the position in which he was
placed or the like, could not have noticed the phenomena which he says he
perceived. He may seek to show that the facts detailed by the witness as the
basis of his inference have no objective existence. 34 Clearly, in order that
the inference of the observer should retain probative force, it is necessary that
the proponent should maintain, at all hazards, the substantial actuality of these
constituent phenomena. 35 The testimony of the witness may be contradicted
by other witnesses. 86
829. Probative Force of Judgments; How Enhanced; Use of Text-Books. 37
As part of his original case, a proponent may be permitted to reinforce the
probative weight of the judgment of his expert, even before an attack has been
made on it by his adversary. In this way, the superior nature of his qualifica-
tions, the length and variety of his experience, the extent of his reading, the
responsibility of the positions which he has held, 38 and other facts of a similar
nature may properly be shown. To the same effect, evidence that the expert's
mental operations are characterized by accuracy 39 or promptness in reaching
correct conclusions may be established in the evidence. Still more natural is it
that the proponent should desire to show the correctness of the reasoning
adopted by his witness in the particular case. 40 Like other deliberative facts,
however, much, in deciding as to whether evidence of this class should be
used, is necessarily dependent upon the administrative instinct of the judge.
W. 1072 (1895); Williams v. Great Northern 35. Frost v. Milwaukee, etc., R. Co., 96
R. Co, 68 Minn. 55. 70 X. W. 860, 37 L R. A. Mich. 470, 56 X. W. 19 (1893); Clark v.
199 (1897) ; Dilleber v. Home L. Ins Co., 87 State, 12 Ohio 483, 40 Am. Dec. 481 (1843) ;
N. Y 79 (1881) : La Beau v People, 34 X. Easton First Xat. Rank v. Wireback, 106 Pa.
Y. 223 (1SGO). Xo obligation rests on the St. 37 (1884): Foster v. Dickerson, 64 Vt.
court to receive such testimony. Root v. 233. 24 Atl. 255 (1891)
Boston El R. Co., 183 Mass 418, 67 X. E. 36. Lake Erie. etc.. R. Co. v Mugj?, 132
365 (1903). Ind. 168, 31 X. E. 564 (1892).
33. Fairchild v. Bascomb, 35 Vt. 398 37. Chambcrlayne, Evidence, 2524
(1862) : In re Mullin, 110 Cal. 252, 42 Pac. 38. Thompson v. Ish. 99 Mo. 160. 12 S W.
645 (1895). 510, 17 Am. St. Rep. 552 (1889); Laros v
34. Kirsher v. Kirsher, 120 Town 337. 94 Com., 84 Pa. St. 200 (1877).
N. W. 846 (1903); Union Pac. R. Co. v. 39. Com. v. Buccieri. 153 Pa. St. 535, 26
Stanwood (Xebr. 1904), 98 X. W 656: Quinn Atl. 228 (1893) (promptness of testimony),
v. Ripens, 63 Wis. 664, 24 X. W. 482, 53 40. O'Xeill v. Beland, 133 111. App. 594
Am. Rep. 305 (1885). (1907).
039
TEXT-BOOKS.
829
So all kinds of corroborative facts 41 or the results of experiments 42 may be
put in evidence to enhance the value of the expert. The facts added by the
witness to those stated in his preliminary enumeration may also be shown in
testing him. 43
Standard text-books are inadmissible as hearsay 44 but the witness may be
permitted to corroborate himself by showing that his statement is in accord
with the text-books on the subject. 45 Standard treatises on matters of common
knowledge however may be in a different class and like mortality tables 40 may
be used to refresh the memory as to facts which are potentially known. 47
Statutes in some states have provided that standard works may be received as
proof of the facts asserted. 48 In putting hypothetical questions the attorney
may adopt the language of the text-books 49 which the expert may ratify 50 and
the expert may even be allowed to refresh his memory by reference to the
text-book 51 which cannot however be used in its assertive capacity 52 and
41. Mover v. New York Cent., etc., R. Co.,
98 N. Y. 645 (1885).
42. People v. Thompson, 122 Mich. 411, 81
X. W. 344 (1899). The testimony of an ex-
pert with respect to a test made by reflex ing
the knees of the plaintiff did not refer to
subjective symptoms, no words or statements
of plaintiff being given, and was therefore
competent in an action for personal injuries.
Hirch v. Chicago Consol. Traction Co., 146
111. App. 501 (1909).
43. Cobb v. United Engineering & Contract-
ing Co., 191 X. Y. 475, 84 X. E. 395 (1908).
44. " The substantial objection is that they
are statements wanting the sanction of an
oath, and the statement thus proposed is
made by one not present and not liable to
cross-examination." Ashworth v. Kittredge,
12 Cush. 194 (1853), per Shaw, C. J.
45. Healy v. Visalia, etc., R. Co., 101 Cal
585, 36 Pac. 125 (1894) ; State v. Winter, 72
Iowa 627, 34 X. W. 475 (1887); State v.
Baldwin, 36 Kan. 1, 12 Pac. 318 (1886);
People v. Vanderhoof, 71 Mich. 158, 39 X. W.
28 (1888). A contrary view has, however,
been expressed. Link v. Sheldon, 18 X. Y.
Suppl. 815 (1892).
Recorded cases. As a practical matter,
this corroboration consists in many instances
in the statement by the text-book author of a
number of recorded cases upon which the
expert relies in aid of his opinion. Healy v.
Visalia. etc, R. Co., 101 Cal. 585. 36 Pac.
125 (1894) : Brodhead v. Wiltse, 35 Iowa 420
(1872) ; Huffman v. Click. 77 X. C. 55
(1877). Although medical books are not com-
petent in evidence still experts may refer in
giving their opinions to the medical author-
ities and state in substance the result thereof.
Fidelity & Casualty Co. v. Meyer, 106 Ark.
91, 152 S. W. 995, 44 L. R..A! (N. S.) 493
(1912), citing text.
46. Pearl v. Omaha, etc., R. Co., 115 Iowa
535, 88 X. W. 1078 (1902).
47. A civil engineer who has testified to the
cause of the fall of a building may verify his
results by reading from tables of recognized
authority a record of the tests which show
the strain-resisting capacity of various build-
ing materials. Western Assur. Co. v. J. H.
Mohlman Co.. 83 Fed. 811, 28 C. C. A. 157,
40 L. R. A. 561 (1897).
48. California. C. C. P. 1944 (1872).
Idaho. Rev St. 5990 (1887).
Montana. C. C. P. 3227 (1895).
Nebraska. Comp. St. 5916 (1899).
Oregon. C. C. P. 758 (1892).
I'tah. Rev. St. 3400 (1898).
49. Connecticut. Tompkins v. West, 56
Conn. 478, 485, 16 Atl. 237 (1888).
Illinois. Connecticut Mut. L. Ins. Co. v.
Ellis, 89 111. 516, 519 (1878).
Kentucky. Williams v Xalley, 45 S. W.
874. 20 Ky. L. Rep. 244 (1898).
South Carolina. State v. Coleman, 20 S.
C. 441 (1883).
Tennessee. Byers v. Xashville, etc., R. Co.,
94 Tenn. 345, 29 S. W. 128 (1894).
50. Chesapeake & O. Ry. Co. v. Wiley (Ky.
1909), 121 S. W. 402: Soquet v. State. 72 Wis.
066. 40 X. W. 391 (1888).
51. Huffman v. Click. 77 X. C 55 (1S77) ;
Rowley v. London, etc.. R Co., L. R 8 Exch.
221 (1873).
52. Foggett v. Fischer, 23 N. Y. App. Div.
207, 48 X. Y. Suppl. 741 (1898).
830, 831 PROBATE FORCE OF REASONING. 640
care must also be used to see that the rule against the use of text-books as
evidence is not evaded. 53 One of the commonest and best methods of enhanc-
ing the value of the testimony of the skilled witness is by calling on him to
explain his reasoning. 54 The counsel may also elicit from an adverse witness
an admission of the eminence of his own witness. 55
830. [Probative Force of Judgments] ; How Tested on Cross-Examination. 56
An appropriate field for cross-examination is as to the knowledge and experience
gained by the reading and training of an adverse witness in connection with
the subject as to which he claims to possess expert skill. 57 The general qualifi-
cations, however acquired, may properly be tested at this time, 58 recognizing
that an unsuccessful attempt to discredit may be a most powerful method of
enhancing the probative efficiency of an adverse witness.
Standard treatises may also be used, not as evidence in themselves, 59 but by
reference for the purpose of testing the statements of the witness, 60 and where
the expert has stated that he relies on the authorities to some extent it may be
shown that the standard books are not in accord on the question/ 51 and the
position taken by various authors on a certain point may be brought out on
cross-examination, 62 and such books provide frequent material for framing
questions. 03
831. [Probative Force of Judgments] ; Stage of Rebuttal. 154 As has been
seen at an earlier place, the process of testing an adversary's case mav take
53. Hall v. Murdock, 1 14 Mich. 233, 72 N. 57. West Chicago St. R. Co. v. Fishman, 169
W. 150 (1897) ; Marshall v. Brown, 50 Mich. 111. 196, 48 X. E. 447 (1897).
148, 15 N. W. 55 (1883; Byers v. Nashville, 58. Birmingham R., etc., Co. v. Ellard, 133
etc , R. Co., 94 Tenn. 345, 29 S. W. 128 ( 1895). Ala 433, 33 So. 276 ( 1902) ; Davis v State,
The rule has been thus stated: A party 35 Ind. 496, 9 Am. Rep. 700 (1871) ; Hutch-
calling an expert medical witness cannot read inson v. State, 19 Xebr. 262, 27 X. W. 113
from medical works on inductive science, and (1886).
ask his witness if he agrees with the state- 59. Chicago Union Traction Co. v. Ertrach-
ment of the authority, or if it accords with ter, 228 III. 114, 81 X. E. S16 (1907) (state
his experience. In re Hock's Will, 129 X. Y. of authorities) ; Dean v. Wabash R. Co. (Mo.
Suppl. 196 (1911). 1910), 129 S. W. 953; Beadle v. Paine (Or.
54. Louft v. C. & J. Pyle Co. (Del. Super. 1905), 80 Pac. 903; Egan v. Dry Dock, etc.,
1910), 75 Atl. 619; State v. Collins (Del. O. R Co, 12 X. Y. App Div. 556, 42 X. Y.
& T. 1903), 62 Atl. 224; Chicago Union Suppl. 188 (1896).
Traction Co. v. Ertrachter, 228 111. 114, 81 60. State v. Moeller (Md. 1910), 126 X.
X. E 816 (1907); Cooper v. Harvey (Kan. W. 568 (credibility); Gulf. C. & S. E. Rv.
1908), 94 Pac. 213; State v. Ryno (Kan. Co v. Dooley (Tex. Civ. App. 1910), 131 S.
1904). 74 Pac. 1114 (handwriting). Where W. 831.
an expert opinion i* competent, the reasons 61. Xew Jersey Zinc, etc., Co. v. Lehiirh
upon which such reasoning is based are like- Zinc, etc, Co., 59 X. J. L. 189, 35 Atl 911
wise received Quincy Gas & Electric Co v. (1R06).
Schmitt, 123 111. App. 647 (1906). 62. Brodhead v Wiltse. 35 Iowa 429
55. Dean v. Wabash R. Co. (Mo. 1010), (1872): Sale v. Eichberg, 105 Tenn. 333. 59
129 S. W T . 953; Sullivan v. Charlestown & W. S W. 1020 '1900).
C, Ry. Co, 85 S. C 532, 67 S E. 905 (1910). 63. State v. Wood. 53 X. H. 495 (1873).
56. Chamberlayne, Evidence, 2535. 64. Chamberlayne, Evidence, 2541.
641 TREATISES. 832
place not only at the stage of cross-examination but upon that of rebuttal. In
other words, the deliberative or testing facts may be introduced into the case
by the direct testimony of friendly witnesses or by the cross-examination of
those which were originally produced by one's adversary. Possibly, the most
obvious and frequent line of attack made at the stage of rebuttal upon the
judgment of an opposing expert is an attempt to establish the claim that the
facts assumed in the hypothetical question do not in reality exist, 65 that the
phenomena said to have been observed were never actually perceived or, at
least, have not been established by the evidence. 06 The result of the reasoning
faculty is inevitably discredited should it appear to have operated upon an
erroneous basis of fact. 67 So an adverse witness may be discredited by showing
that he has at other times made inconsistent statements 68 or acted in a manner
inconsistent with his present testimony. 69 So it may be established that the
explanation given by the witness of the facts is not the only one 70 and facts
showing that the expert is lacking in qualifications 71 or is biased 72 or has
been mistaken on other occasions 73 are also admissible.
832. Use of Standard Treatises; Deliberative Effect. 74 It has thus been
seen that, even under modern conditions, the office of a text-book, though of
the highest authority, is, in the absence of statute, deliberative. Such benefit
as the community, represented in its courts, gains from scientific text-books, it
thus acquires by indirection. Across the path to direct consultation stands the
rule against hearsay. This difficulty is obviated in many cases by using these
books as an aid to judicial knowledge. The hearsay rule was established be-
fore science was of importance and it has been suggested that an additional
65. Quinn v. Higgins, 63 Wis. 664, 24 N. W. 69. Peterson Bros. v. Mineral King Fruit
482, 53 Am. Rep. 305 I 1885) An expert, for Co. (Cal 1903), 74 Pac. 162.
example, who testifies that, in his judgment, a 70. Lincoln v. Taunton Copper Mfg. Co., 9
train running at a certain rate of speed could Allen (Mass.) 181 (1864).
have been stopped within a given distance, 71. Carley v. New York, etc., R. Co., 1 N.
speaks with but little effect should it appear Y. Suppl. 63 (1888). See, however, Buck-
that the train was in point of fact, proceed- man v. Missouri, etc., R. Co., 100 Mo. App.
ing at a much higher rate of speed. Frost 30, 73 S. W. 270 (1903) ; Adams v. Sullivan,
v. Milwaukee, etc, R. Co., 96 Mich. 470. 56 100 Ind. 8 (1884).
X. W. 19 (1893). 72. New Jersey Zinc, etc., Co. v. Lehigh
Contradiction by the event may be shown Zinc, etc., Co., 59 N. J. L. 189, 35 Atl. 915
on rebuttal. Thus, an event which the ex- (1896); Metropolitan St. Ry. Co. v. Hough-
pert said was impossible may be affirmatively ton (Tex. Civ. App. 1911), 134 S. W. 422.
shown actually to have occurred. Com. v. 73. Papers containing false signatures
Leach. 156 Mass. 9'.). 30 N. E 163 (1S92). which were pronounced genuine at a former
66. Bristed v. Weeks, 5 Redf. Surr. (N. trial by experts called at the second trial may
Y.) 529 il82). be introduced in evidence for the purpose of
67. Clark v. State. 12 Ohio 483. 40 Am. showing the former mistake, and thereby af-
Dec. 481 (1843). fecting the weight of their opinions. Hoag
68. N People v. Donovan, 43 Cal. 162 H72) : v. Wright, 174 X. Y. 36, 66 X. E. 579, 63
Miller v. Mutual Ben. L. Ins. Co.. 31 Iowa L. R. A. 163 (1903).
216, 7 Am. Rep. 122 (1871); Sanderson v. 74. Chamber layne, Evidence, 2547.
Nashua. 44 X. H. 492 0863).
833 PROBATE FORCE OF REASONING. 642
exception to the hearsay rule be established in favor of scientific treatises 7E
but there is much danger in the practical workings of this suggestion and with
the wide use of judicial knowledge there seems no practical necessity for the
change. For purposes of corroboration, the proponent of the inference com-
monly makes use of the text-book statements at the stage of examination-in-
chief. Testing by means of them usually takes place on cross-examination.
In either event, reception is a matter of administration. The parties have few,
if any, rights in the matter beyond that of the use of reason. Even the delibera-
tive use of the statement of a text-book may seern to the court unreasonable.
For example, a work on topography though consisting of assertions and other
facts largely deliberative has been rejected. 70 Should the evidence be offered
in its deliberative capacity, but danger exists lest it be taken as evidence of
the facts asserted, e.g., where a parliamentary text-book is offered to show that
an assembly was properly conducted 77 or a bank note detector is tendered for
the purpose of showing the worthlessuess of a particular bank note 78 the
evidence has been excluded.
833. Weight of Inferences; A Question for the Jury. 79 The admissibility
of opinion evidence is for the court, its value is for the jury. 80 As exemplified
in many connections, the probative force of the reasoning by witnesses i* a
question of fact for the jurors. 81 In large measure this follows from the cir-
cumstance that the qualifications of witnesses, as well as the credibility of
their stories, is decided by the latter. The ultimate decision as to the belief-
carrying quality of the judgment of an expert is, therefore, for them. The
action of the court in the matter at the stage of roir dire is entirely provisional.
It confers merely that measure of quasi-indorsement which is to be found in
the implied statement that the witness is capable of aiding the jury, i.e., that
the latter might, as reasonable men, properly follow the reasoning which the
witness will give them. The jurors, however, are at liberty, with certain
obvious restrictions, to do as they see fit as to crediting the witness. The
opponent, on his part, may well contend that, although the court has permitted
the witness to testify, neither his qualifications nor his evidence are such as to
entitle him to credit. 82 The form in which the reasoning of the witness has
been placed by him makes no difference in the application of the general
administrative rule that the probative weight of a mental act is for the jury.
The principle is as true in case of the inference or conclusion of an observer s3
75. Timothy v. State. 130 Ala. 6, 30 So. 80. Landrum v. Swann (Ga. App. 1910),
339 (1901) (powder marks). 68 S. E 682
76. Spalding v. Hedges, 2 Pa. St. 240 81. Card v. Moore, 173 N. Y. 598, 68 N. E.
(1845). 1105 (1903)
77. Cranfill v. Harden, 22 Tex. Civ App. 82. Blough v. Parry, 144 Ind. 463, ,40 N
656, 55 S. W. 805 (1000K E 70. 43 NT. E. 560 (1896): Davis v. State,
78. Payson v. Everett, 12 Minn. 216 (1867). 35 Tnd. 4516. Am. Rep. 760 (1871).
79. Chamherlayne. Evidence, 2551. 83. Prentiss v. Bates, 93 Mich. 234, 53 N.
W. 153. 17 L. R. A. 494 (1892).
643 WEIGHT. 834
as of the judgment of an expert. The position of the expert has of ten. been
said to be advisory merely. 84 The jury is to decide which of the enumerated
facts submitted to the expert exist s5 and may also discredit the reasoning of the
witness, or they may discredit the facts offered and still follow the conclusion
of the witness. Within the limitations prescribed by reason, the right of the
jury to weigh the evidence is unfettered. It is, therefore, unsound administra-
tion for a presiding judge to rule that a skilled observer is. entitled to greater
credit than the ordinary witness, 86 that the expert evidence of a skilled witness
is not entitled to confidence 87 or that the probative force of a judgment is
gauged by the power of the expert, judging by the laws of mind, to reach a
valid conclusion. 88 Even so simple and apparently harmless a formulary as
that the weight of the judgment of an expert is dependent upon the correspond-
ence of the facts stated to him to those established by the evidence has been
regarded as not a proper rule by which to limit the freedom of the jury. 89 For
the same reason the judge cannot adopt the theory of the witnesses of one side
and then decline to permit the adverse party to testify and argue in favor of
another hypothesis. 90
834. [Weight of Inferences] ; Reason Essential and Sufficient. 81 The proba-
tive force of the judgment of an expert will be largely determined by the
validity of the grounds which he assigns for it. 92 Should no reasons be ad-
vanced for the mental result, it may be irrational for the jury to follow it. 93
It also may be irrational for the jury to refuse to follow the uncontradicted
testimony of the expert in a matter about which they know nothing, 94 although
the jury may choose between two rational views, 95 but they cannot follow a
84. F. W. Brockman Commission Co v. 91. Chamberlayne, Evidence, 2559.
Aaron (Mo. App. 1910), 130 S. W. 116; Me- 92. Randolph v. Adams, 2 W. Va 519
Donald v. Metropolitan St. Ry. Co., 219 Mo. (1868); Knowlton v. Oliver, 28 Fed. 516
468, 118 S. W. 78 (1909) ; Price v. Connecti- (1886).
cut Mut L. Ins. Co., 48 Mo. App. 281 (1892): 93. Randolph v. Adams, 2 W. Va. 519
Spooner v. Kornarens, 113 N. Y. Suppl. 483 (1868).
(1908). 94. Leitch v. Atlantic Mut. Ins Co., 66 X.
85. People v. Barber. 115 X Y. 475, 22 X. Y. 100 (1876) (materiality of circumstances
E. 182 (18S9): Wendell v Troy. 39 Barb. 329 affect the ri^k in insurance). See, for ex-
(1862) -. People v. Thurston, 2 Park Cr. 49 ample, Hart v. Brooklyn, 31 X. Y. App. Div.
(1852). 517. 520, 52 X. Y. Suppl. 113 (1898).
86. Carpenter v Calvert. 83 Til 62 (1876) A skilled observer may stand in the same
(mental capacity) position as an expert in this connection.
87. Pannell v Com . 86 Pa. St. 260 (1878). Davis v School Dist. of City of South Omaha,
88. Rloujrh v. Parry, 144 Ind 463, 40 X. E. 84 Xeb. 858, 122 X W. 38 (1909) (value of
"0. 43 X. E. 560 (1895) architect's services).
89. Rloujrh v Parry. 144 Ind. 463. 40 X E 95. Gorman v. St. Louis Transit Co.. 96
70. 43 X E r>fiO (1895) : Hall v. Rankin. 87 Mo App. 6O2. 70 S. W 731 (1902) : Hurley
Iowa 261. 54 X. W. 217 (1893) See. how- v Xew York, etc. Brewing Co.. 13 X Y.
ever, In re Richmond. 206 Pa St. 219. 55 App. Div. 167. 43 X. Y. Suppl. 259 (1897);
Atl. 970 (1903) Jones v. Roberts, 96 Wis. 427, 70 X W. 685,
90. Fox v Peninsular White Lead, etc., 71 X. W. 883 ( 1897) .
Works. 84 Mich 67R. 48 X W. 203 (1891).
835,836 PKOBATE FORCE OF REASONING. 644
small minority of the testimony in the face of salient and irrefragible
facts.""
835. [Weight of Inferences] ; Comparison between Inferences from Observa-
tion and Reasoning from Assumptions. 97 To attempt any classification of the
probative value of the reasoning of witnesses except in the most general way is
a task as difficult as its results are valueless. In broad outline, however, certain
general distinctions are to be observed. It is not, for example, questionable that
on a matter essentially technical in its nature, the inference or conclusion of a
skilled observer is* more powerful, other things being equal, in producing belief
than similar mental acts by witnesses not possessed of the appropriate skill
and experience. 98 For example, the evidence of eye-witnesses that a certain
event actually occurred is not readily off-set by the inference, conclusion or
judgment of a witness, skilled or unskilled, that it could not have done so."
While the inference or conclusion of the ordinary or skilled observer is second-
ary evidence as compared to the constituent facts themselves, and the judgment
of the skilled observer or expert is secondary to the judgment of the jury, no
relationship of primary and secondary exists as between the various mental acts,
inferences, conclusions or judgments. 1 That is to say, receiving the opinion
of an expert is not, for example, to be postponed until it is made to appear that
the inference or conclusion of an observer cannot be obtained. 2 Testimony
from Judgment may be superior to Inference and Conclusion as the hypo-
thctically stated question purports to be exact and inference and fact are thus
clearly separated, but in many cases the observed phenomena cannot be placed
before the expert in their entirety 3 and the hypothetical question may be based
on facts incompletely proved and the expert furthermore lacks the warmth and
intimacy of the observer's connection with the original phenomena. 4
836. Weight of Judgments; A Field of Conjecture. 5 The use of expert
testimony is one of the weak points in the administration of justice. Judges
seem intuitively to distrust it, yet scarcely to know how present difficulties can
best be met and overcome. The favorite field of the expert is that of the
inexact sciences, noticeably medicine. Here theory takes the place of fact
96. McMullen v. City of New York, 93 X. its, are deemed entitled to have an opinion of
Y. Suppl 772, 104 A pp. Div. 337 (1905). their own. Andrews v. Frierson. 39 So. 512
97. Chamberlayne, Evidence, 2563. (1905) (services of auctioneer) ; Denison v.
98. St. Louis, etc., R. Co. v. Brown, 62 Ark. Shawmut Min. Co., 135 Fed. 864 (1904).
254, 35 S. \V. 225 (1896). 3. Porter v. Pequonni'c Mfg. Co., 17 Conn.
99. Southern Ry Co. v. Ward, 131 Ga. 21, 249, 256 (1845): Cadwell v. Arnheim. 152
61 S. E. 913 (1908). N. Y. 182, 46 X. E. 310 (1897^ : Pease Fur-
1. People v. Gonzales, 35 N. Y. 49 (1866). nace Co. v. Kesler, 21 N. Y. App. Div. 631,
See also Elliott v. Van Buren, 33 Mich. 49, 47 X. Y. Suppl 473 (1897) : Weber v. Third
20 Am. Rep. 668 (1875). Ave. R. Co.. 42 X. Y. Suppl. 789 (1896).
2. Value. In many, perhaps most, in- 4. Cadwell v. Arnheim, 152 X. Y. 182, 46
stances, the value of property is a subject X. E. 310 (1S97K
upon which the jury, within reasonable lim- 5. Chamberlayne, Evidence, 2568.
645 WEIGHT. 836
and conjecture usurps that of reasoning. 6 One difficulty with expert opinion
is the faulty method of their selection as those only are selected whose opinions
are favorable to the side which produces them so that even if their opinions
are honest the result does not present to the court in most cases the real state
of expert opinion of the subject but only those who are willing to testify as
desired. 7 The suggestion has been frequently made that the judge should
select the experts 8 but the practical difficulties of doing this are great as the
court has neither the time or machinery to discover the unbiased expert or to
test him when produced. 9 Expert testimony is therefore subject to much
criticism u> but has its warm admirers ll especially in technical matters where
it seems absolutely necessary.
6. Roberts v. New York El. R. Co., 128 9. Thorn v. Worthing Skating Rink Co., 6
N. Y. 455, 465, 474, 28 N. E. 486, 13 L. R. A. Ch. D. 415 note, 416 note (1876).
499 (1891). 10. Goodwin v. State, 96 lud. 550, 572
7. Thorn v. Worthing Skating Rink Co., 6 (1884).
Ch. D. 415 note, 416 note (1876). 11. State v. Reidell, 9 Houst. (Del.) 470,
8. Grigsby v. Clear Lake Water Works Co., 14 Atl. 550 (1888) ; Young v. Earner, 27
40 Cal. 396 (1870). Gratt. (Va.) 96 (1876).
CHAPTER XXXVII.
UNSWORN STATEMENTS; INDEPENDENT RELEVANCY.
Hearsay rule as a distinctive anomaly ; scope of the anomaly, 837.
Independent relevancy of unsworn statements; meaning of the res gestae, 838.
distinct criminal offences, 839.
extra-judicial statements part of the res gestae, 840.
existence of the statement itself, 841.
evidence is primary, 842.
forms of statements, 843.
extra-judicial statements as probative facts, 844.
bodily sensation, 845.
identification, 846.
mental condition, 847.
intent and intention, 848.
illustrative instances, 849.
knowledge, 850.
illustrations, 851.
extra-judicial statements as deliberative facts, 852.
form of statement; oral, 853.
reputation, 854.
libel, etc., 855.
administrative details, 856.
837. Hearsay Rule as a Distinctive Anomaly; Scope of the Anomaly. The
exclusionary rule which forbids the reception in evidence of unsworn state-
ments used in their assertive capacity is the distinctive anomaly of the English
law of evidence. 1 Reserving for discussion at another place 2 the general argu-
ments assigned in support of the hearsay rule, which a large body of authorita-
tive professional opinion still regards as a salutary one, it may be here stated
that the mischief attendant upon the exclusion of hearsay statements is
greatly limited by the narrow scope of the anomaly. Only to the unsworn
statement when used in its assertive capacity, i.e.. as proof of the truth of the
facts asserted, does the rule against hearsay apply. 3 Wherever the existence
1. 4 Chamberlayne, Evidence, 2574. 3. People v. Lem You, 97 Cal 224, 32 Pac.
2. Infra, 866 et seq.; 4 Chamb., Ev., 11 (1895); Shaw v People. 3 Him (X. Y.)
-2711 ft Keq. See also discussion of reasons 272, 5 Thomps. & C. 430 (1874) ; 4 Chamb.,
for the anomaly, 4 Chamb., Ev., 2575, Ev . 2578. n. 1. See Jennings v. Rooney,
2576, 2577. 183 Mass. 577, 67 N. E. 665 (1903).
646
647 RES GESTAE. 838
of a statement is independently relevant, 4 i.e., by reason of its mere existence,
an unsworn statement is a relevant fact; the hearsay rule, so called, has no
application. All inferences which may logically be drawn from the existence
of an unsworn statement, save only that the statement asserts the truth, may,
if relevant, be relied upon by the proponent. The inference, that the facts
asserted in an unsworn statements actually exist is placed under the ban of
the rule against " hearsay,'' 5 and is accordingly rejected. Only to the un-
sworn statement when tendered in its assertive capacity does the hearsay rule
apply. The present chapter will be devoted to the independent relevancy of
unsworn statements, which may be constituent, probative or deliberate.
838. Independent Relevancy of Unsworn Statements; Meaning of Ees
Gestae. 7 The independent relevancy of "an unsworn statement may be' con-
stituent. 8 This occurs where the extra-judicial declaration is one of the res
gestae, a relevancy of such facts being constituent of the right or liability
asserted in the action. When so employed, the existence of a statement is
treated simply as a fact, and, being relevant, is deemed admissible, in the
current phrase, as relevant per se. 9 In its English or restricted meaning, res
gestae imports the conception of action, by some person producing the effects
for which liability is sought to be enforced in the action. 10 In the prevailing
English view, " Facts which constitute the res gestae must be such, as are so
connected with the very transaction or fact under investigation as to constitute
a part of it." u In a marked degree, this is true of the criminal liability of'
a defendant. 12 In America, the phrase res gestae is by no means limited in
meaning, as by the better opinion in England, to actual series of world hap-
penings out of which the right or liability necessarily arises, if at all. 13 It
goes much further and covers all relevant facts necessary to the specific proof
of the res gestae, properly so-called. 14 The American use of the term is ap-
4. Independent relevancy may he defined 8. Supra, 640; 3 Chamb., Ev.. 1713.
as that form of relevancy which is not de- 9. 4 Chamberlayne. Evidence, 2581.
pendent upon the truth or falsity of the fact 10. " It is no doubt true, as is said in 1
asserted A statement is said to be inde- Phillips on Evidence, 152, 10th ed., words
pendent ly relevant when the mere fact of its and declarations are properly admissible when
existence has an evidential value. they accompany some act, the nature, object or
5. Hearsay may be shortly defined as an motives of which are the subject of inquiry."
extra-judicial statement offered as proof of Hyde v. Palmer. 3 B. & S. 657. 32 L. .T. Q. B.
the facts asserted in it. 126. 7 I.. T. 823, 11 W. R 433 (1863).
6. People v. Hill, 123 Cal. 571, 56 Pac. 443 11. Haynes v. Com., 28 Cratt. (Va.) 942
(1899) ; Mallery v. Younjr, 94 Ga. 804, 22 8. (1877).
E. 142 (1894) ; Com. v. Fajjan, 108 Mass. 471 12. R. v. Bedingfield. 14 Cox Cr. C. 341
(1871): Birge v. Bock, 44 Mo. App. 69 ( 1879) : 4 Chamb., Ev.. 2582.
(1890); Mooney v. New York El R. Co. 16 13. Tt necessarily results that a larore num-
Daly 145, 9 X. Y. Supp. 522 ( 1S90) : West- her of facts are classed as res fiestrp under the
lake v. Westlake, 34 Ohio St. 621. 32 Am. Rep. American view, which are simply treated as
397 (1878) : 4 Chamb., Ev.. 2579. n. 2 A probative facts under the English. 4 Chamb.,
futile distinction, see 4 Chamb.. Ev.. 2580. Ev , 2583, n. 1.
7. 4 Chamberlayne, Evidence, 2581- 14. Rows v. Manhattan L. Tns. Co., 138
2587. Cal. 285. 71 Pac. 348 (1903); 'Barrow r.
838
PROBATE FORCE OF REASONING.
648
parently broad enough to cover any probative, certainly any material, fact
within the entire range of the evidence, where the proof is circumstantial. 15
Under such circumstances, it may be held to embrace not only occurrences at
the stage of action, but any relevant facts at that of preparation, such as facts,
in a criminal case, showing motive, design or purpose, the procuring of the
means employed in the commission of an offense, 16 and the like. 17 In the
same way, it covers relevant acts done or events occurring at what may be
called the stage of escape, the concealment, 18 change of name, subornation of
perjury in witnesses, and so forth. 19 So comprehensive is the American use
of the term that, to borrow an expression from pleading, precisely the same
phrase is used to designate the alleged facts and the evidence by which they are
to be circumstantially established. 20 Still further, it is customary for certain
courts to speak of any fact which is for some procedural reason admissible, as
part of the res gesfae. Under this practice the admissions of a party, 21 or
those of an agent, 22 will be received in evidence as part of the res gestae.
No Implication of Action. Under this broad American definition of res
gestae the conception or implication of action is, in large measure, eliminated.
The res gestae fact, in the American view, may be simply an attendant cir-
State, 80 Ga. 191, 5 S. E. 64 (1887) ; Baird
v. Jackson, 98 111. 78 (1881); State v. Fitz-
gerald, 130 Mo 407, 32 S. VV. 1113 (1895);
Nugent v. Breuchard, 91 Hun 12, 36 X Y
% Supp. 102 (1895); Crooks v Bunn, 136 Pa.
368, 20 Atl 529 (1890); 4 Chamb., Ev.,
2583, n. 2.
15. Hall v. Connecticut River Steamboat
Co., 13 Conn. 319 (1839) ; Place v. Baugher,
159 Ind. 232, 64 X. E. 852 (1902) ; Evans v.
Montgomery, 95 Mich. 497, 55 N. W. 362
(1893) ; Faulcon v Johnston, 102 N. C 264,
9 S. E. 394 (1889); Prentiss v Strand, 116
Wis. 647, 93 N. W. 816 (1903) ; Kerr v. M.
W. of A., 117 Fed. 593, 54 C. C. A. 655
(1902) : 4 Chamb., Ev., 2583, n 4, and cases
cited in last preceding note. In an action for
assault on the plaintiff the cries of the mob
at the time are clearly competent as part of
the res gestve. Saunders v. Gilbert, 156 X. C.
463, 72 S. E. 610, 38 L R. A (X S. ) 404
(1911). The words of a frightened child
made within thirty seconds after a crime
" the bums killed pa with a broomstick" are
admissible as part of the res gesttp. The
strictness of the old English rule that the
words must be entirely contemporaneous has
been relaxed in this country and the words
wilf be admitted where they proceed from
natural overwhelming impulse. The old Eng-
lish rule that a mere bystander's remark is
inadmissible is also overturned in this country
as standing on no reason. Furthermore the
fact that the child only four years old was
too young to be a witness does not shut out
his statement as the growl of a dog or the
neighing of a horse would also be competent.
State v. Lasecki, 90 Ohio St. 10, 106 N. E.
660, L. R. A. 1915 E 202 (1914).
16. Smith v. State, 88 Ala. 73, 7 So. 52
(1889); State v. Gainor, 84 Iowa 209, 50
X. W. 947 (1892); 4 Chamb., Ev., 2583,
n. 5.
17. State v. Lucey, 24 Mont. 295, 61 Pac.
994 (1900) ; State v. Thompson, 132 Mo. 301,
34 S. \V. 31 (1896).
18. State v. Phillips, 118 Iowa 660, 92 N.
W. 876 (1902) ; State v. Vinso, 171 Mo. 576,
71 S. W. 1034 (1903).
19. People v. Chin Hane, 108 Cal. 597, 41
Pac 697 (1895); Thorpe v. Wray, 68 Ga.
359 (1882) ; State v. Brooks. 1 Ohio Dec. (Re-
print) 407 M851); 4 Chamb., Ev., 2583,
n. 8, and cases cited in last preceding note.
20. 4 Chamberlayne, Evidence, 2583, n. 9.
21. Keyes v State, 122 hid. 527, 2.3 X E.
1097 (1889); O'Mara v. Com., 75 Pa. 424
(1874) ; 4 Chamb., Ev., 2583, n. 10.
22. Louisville, etc., R. Co. v. Landers, 135
Ala. 504, 33 So. 482 (1902); Haggart v.
California Borough, 21 Pa. Super. Ct. 210
(1902). Certainly the breaking down of a
valuable phrase of established meaning could
hardly be more complete.
(349
RES GESTAE.
838
cumstance in the case, exerting no influence on the actual res gestae, i.e., the
transaction itself. 23 Thus, in a criminal case, the personal appearance of the
accused, 24 his physical condition, 25 or that of some other person, 215 have b.een
spoken of as part of the res gestae. In the same way, the condition of the
ground around a given place, 27 or of certain articles of clothing, 28 has been
similarly classified. 29 Even a purely explanatory circumstance may be desig-
nated by the courts as part of the res gestae. 30
Contemporaneousness Xot Demanded. It is by no means essential, in the
American view of the scope of the res gestae, that the probative or otherwise
admissible fact so designated should bear any intimate or indeed any special
relation in point of time to the res gestae properly so-called. 31 Such a proba-
tive fact may precede, even by a considerable interval, the principal transac-
tion, may, indeed, be a mere preliminary. 32 On the other hand, it may follow
the happening of the actual res gestae, 33 even by a considerable time. 34 Of
this nature, may be said to be facts ascertained by searches instituted for the
discovery of incriminating evidence. 35 Into the same category would seem
to fall any emotion, 36 or lack of it, 37 shown by one accused of crime. 38 Mere
23. People v. Majors, 65 Cal. 138, 3 Pac.
597, 52 Am. Rep. 295 (1884) ; Travelers' Ins.
Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18
(1890) ; Chicago, etc., R. Co. v. Kinnare, 76
111. App. 394 (1898); Com. v. Holmes, 157
Mass. 233, 3 X. E 6, 34 Am. St. Rep. 270
(1892) ; State v. Fitzgerald. 130 Mo. 407, 32
S. W. 1113 (1895) ; People v. Fitzgerald, 20
App. Div. 139, 46 N. Y. Supp. 1020 (1897) ;
Com. v. Twitchell, 1 Brewst. (Pa.) 551
(1869) ; 4 Cbamb., Ev., 2584, n. 1.
24. People v. Foley, 64 Mich. 148, 31 X. W.
94 ( 1887 ) ; State v. Ramsey, 82 Mo. 133
(1884) ; dough v. State, 7 Xeb. 320 (1878) ;
People v. Fitzgerald, supra ; Com v. Twitch-
ell, supra; 4 Chamb., Ev., 2584, n. 2.
25. Com.- v. Holmes, supra; Garner v. State
(Tex. Cr. App. 1901), 64 S. \V. 1044; Bar-
bour v Com., 80 Va. 287 (1885).
26. People v. Majors, supra; People v. Rob-
inson, 2 Park. Cr. (X. Y.) 235 (1855) ; Com.
v. Mudgett, 174 Pa. 211, 34 Atl. 588 (1896).
27. Davidson v. State, 135 Tnd. 254, 34 X.
E. 972 (1893); State v. Fitzgerald, supra:
People v. Minisci, 12 N. Y. St. Rep. 719
(1887).
28. People v. Majors, supra.
29. It is evident, however, that no right or
liability could arise out of such facts and that
they are, at least, merely probative as to what
were the actual res gestas.
30. Jackson v. State, 177 Ala, 12, 59 So.
171 (1012): Welker v. Appleman, 44 Ind.
App. 609. 90 X. E. 35 (1909); Thomas V.
Macon County, 175 Mo. 68, 74 S. W. 999
(1903) ; Hoffman v. Edison Elec. 111. Co., 87
App. Div. 371, 84 X. Y. Supp 437 (1903);
Shannon v. Castner, 21 Pa. Super. Ct. 294
( 1902) ; 4 Chamb., Ev., 2584, n. 7.
31. McMahon v. Chicago City Ry. Co., 239
111. 334, 88 X. E. 223 (1909), aff'g 143 111.
App. 608 (1908).
32. Rogers v. Manhattan L. Ins. Co., supra;
McMahon v. Chicago City R. Co., supra; Com.
v. Hayes, 140 Mass. 366, 5 S". E. 264 ( 1886) ;
Shaefer v. Missouri, etc., R. Co., 98 Mo. App.
445, 72 S. W. 154 (1902); Kenney v. South
Shore Xatural Gas & Fuel Co., 119 X. Y.
Supp. 363, 134 App. Div. 859 (1909) ; Keho
v. Com., 85 Pa., 127 (1877); 4 Chamb., Ev.,
2585, n. 3.
33. People v. Winthrop, 118 Cal. 85, 50
Pac. 390 (1897): Mitchell v. State. 71 Ga.
128 (1883) ; People v. Stewart, 75 Mich. 21,
42 X. \V 662 (1889); People v. Buchanan,
145 X. Y. 1, 39 X. E. 846 (1895) : State v.
McCourry, 128 X. C- 594, 38 S. E. 883 ( 1901 ) :
Com. v. Mudgett. supra; 4 Chamb., Ev.,
2585, n. 4.
34. Stiles v. State, 57 Ga. 183 (1876).
35. People v. Winthrop^ supra: People v.
Long. 44 Mich. 296, 6 X. W. 673 (1880);
Com. v. Mudsrett. supra.
36. People v. Buchanan, supra.
37. Greenfield v. People, 85 N. Y. 7o. 39
Am. Rep. 636 (1881).
38. These -ire, properly speaking, probative
facts which tend to throw light backward as
838
PROBATE FORCE OF REASONING.
650
narrative when not spontaneous is strictly excluded 39 as in case of reports of
employees as to an accident 40 but statements made while the fact in issue is in
progress are generally admitted. 41
Contiguity, Intimate Relation, etc., Excused. Contiguity or nearness in
point of space to the locus of the real res yestae is not required under the
American definition of the phrase. The acts may have been done or the
events occurred at widely separated points, 42 yet both be equally part of the
res gestae. 4 * The actor or declarant in the probative transaction may have
taken no part whatever in the actual res yestae. 44 Every relevant fact is, ipso
facto, part of the res yestae. This test is single and universal. 45 Not only is
4 Chamb.,
it were upon the true res gestce.
Ev., j$ 2.M.V
39. Where the plaintiff was lying on the
ground and a friend bent over him and asked
him how it happened and he replied that the
ladder bent this is not admissible as part of
the res gestie as it is narrative and not spon-
taneous Greener v. General Electric Co., 209
X. Y. 135, 102 X E. 527, 46 L. R. A. (N. S.)
975 (1913). The exclamation of an operator
when an accident occurs " the damn thing was
about wore out anyhow and they would keep
running it until they killed somebody " is not
admissible as part of the res yestce as it must
be the spontaneous product of immediate sen-
sual impressions. This declaration in ques-
tion was not describing the accident but
merely a condition he had previously ob-
served. Illinois Central K. Co. v. Lowery,
184 Ala. 443, 03 So 952, 49 I.. K. A. (N. S.)
1149 (1913). Declarations merely narrative
inadmissible as res gestce, see note, Bender
ed., 17 X. Y 131.
40. Statements by the conductor of a train
made half an hour after the accident are not
admissible as part of the res gestce as they
were not spontaneous but were mere narra-
tive. ( allahan v Chicago. Burlington &
Quincy R. Co., 47 Mont. 401. 133 Par 687,
47 L. R. A (X. S.) f>87 (1913). Statements
by the conductor of a train as to what caused
the accident made two hours after the acci-
dent may be admitted as part of the res gestfc
in the discretion of the trial judge. State-
ments may be put in if they arise naturally
without evidence of premeditation and di-
rectly tend to characterize the act in ques-
tion. Walters v. Spokane International R.
Co., 58 Wash. 293, 108 Pac. 593, 42 L R. A.
(X. S.) 017 (1910). The report of a station
agent that a fire had been set by one of the
defendant's engines is not admissible either as
part of the res gestce or as he was performing
a duty as the defendant cannot be held bound
by the reports of its agents unless it adopts
them. Warner v Maine Central R. Co., Ill
Me. 149, 88 Atl. 403, 47 L. R A. (N. S.) 830
(1913).
41. Declarations made by a woman while
under treatment for abortion and before the
final operation as to who was treating her
and what he was doing for her are admissible
against the doctor as part of the res gestce.
State v. Hunter, 131 Minn. 252. 154 N. W.
1083, L. R. A. 1916 C 566 (1915). In an
action by an employee against his fellow
workmen for wrongfully obtaining his dis-
charge a letter of recommendation written to
him by his employer at the time of his dis-
charge is admissible as part of the res gestce
The letter was contemporaneous with the dis-
charge and was a part of the transaction
tending to illustrate and explain it. Baus-
bach v. Reiff, 244 Pa. 559, 91 Atl. 224, L. R.
A. 1915 D 785 (1914). In a prosecution for
obtaining money on false pretences by means
of a worthless check the telegram of the bank
on which the check was drawn stating that
the drawer had no money in the bank and
that he was a fraud is not evidence as it is
mere hearsay and is not a part of the res
(/estfp. Rogers v. State, 97 Neb. 180, 149
N W. 318. L. R A. 1915 B 1125 (1914).
42. State v. McLaughlin. 149 Mo 19, 50
S. W. 315 (1899); Com. v. Eaton, 8 Phila.
(Pa.) 428 (1869).
43. State v. Sexton, 147 Mo. 89, 48 S. W.
452 (1898).
44. Oakley v. State, 135 Ala. 15, 33 So. 23
(1902); Beckham v. State (Tex. Cr. App
1902), 69 S. W. 534.
45. People v. Henderson, 28 Cal. 465
(1865) ; Cox v. State, 64 Oa. 374, 37 Am. Rep.
76 (1879): State v. Hoffman, 78 Mo. 256
(1883); Stewart v. State, 19 Ohio 302, 53
Am. Dec. 426 (1850); Com. v. Mudgett, 174
051 RES GESTAE. 839
it said of every relevant fact that it is part of the res gestae, but the statement
is frequently reversed and the negative form of assertion employed, it being
said of any fact deemed irrelevant that it is not part of the res yestae, or per-
haps, that it is no part of the res gestae. 48 It may fairly be said therefore that
res gestae and relevant are equivalent expressions in the usage of the American
states adopting the extended scope of the phrase. 47
839. [Res Gestae] ; Distinct Criminal Offenses Whatever may be the scope
of the res yestae, the right to establish them is unfettered in at least one
direction. It is. in general, no ground for excluding proof of a legitimate res
gestae fact that the evidence also incidentally tends to prove that the actor sub-
jected himself to other liability. 48 In a criminal case, for example, assuming
that the accused is not required to criminate himself, it is no sufficient ground
for rejecting unsworn statements or other facts classified as res gestae that
they tend to establish the commission of a distinct offense other than the one
under consideration. 49 Two distinct offenses may be so inseparably connected
that the proof of one necessarily involves proving the other, and in such a case
on a prosecution for one evidence proving it cannot be excluded because it also
proves the other. 50 An accused person is not furnished with immunity from
the consequences, of a crime because he has probably committed another. 51
Sufficient administrative necessity for exposing the accused to being convicted
of having committed one offense upon evidence that he has perpetrated another,
must, however, be shown to exist, and no valid reason can well be assigned for
rejecting it. Certainly this is the rule when a fact can satisfactorily be
proved in no other way. 52 Where proof of guilt is circumstantial, and these
Pa. 211, 34 Atl. 588 (1896) ; 4 Chamb , Ev., 1049, 40 L. R. A. 269 (1897) ; Lyons v. Peo-
2586, n. 4. pie, 137 111. 602, 27 X. E. 677 (1891) ; State
46. Murphy v. People, 9 Colo. 435, 13 Pac. v. Dooley, 89 Iowa 584, 57 X. W. 414 (1894) ;
528 (1887); Collins v. People, 194 111. 506, Com. v. Sturtevant, 117 Mass. 122, 19 Am.
62 X. E. 902 (1902) ; State v. Hudspeth, 159 Rep. 401 (1875) ; State v. Taylor, 118 Mo.
Mo. 178, 60 S W. 136 (1900) ; Lyon v. Lyon, 153, 24 S. W. 449 (1893) ; People v. Pallister,
197 Pa. 212, 47 Atl. 193 (1900) ; 4 Chamb., 138 X Y. 601, 33 X. E. 741 (1893) ; Brown v.
Ev, 2586, n. 5. Com., 76 Pa. 319 (1874); 4 Chamb., Ev.,
47. Webb v. State, 135 Ala. 36, 33 So. 487 2588, n. 2.
(1903) : Wood v. State, 92 Ind. 269 (1883) ; 50. People v. Marble, 38 Mich. 117 (1878) ;
Shaefer v. Missouri Pac. R. Co., 98 Mo. App. State v. Roberts, 15 Or. 187, 13 Pac 896
45, 72 S. W. 154 (1903); Stewart v. State, H887): Reed v. Com., 98 Va. 817, 36 S. E.
supra; Com. v. Mudgett, supra; 4 Chamb., 399 (1900); 4 Chamb., Ev., 2588. n. 3.
Ev., 2586, n. 6. For partial explanations of 51. Johnson v. State, 88 Ga. 203, 14 S. E.
this extension in the meaning of the term 208 (1891); Cora. v. Scott, 123 Mass. 222, 25
res gestae, see 4 Chamb., Ev., 2587 Am. Rep. 81 (1877) ; People v. Lewis, 62 Hun
48. People v. Oleason, 127 Cal. 323, 59 Pac 622, 16 X. Y. Supp. 881 (1891), alT'd 136 X.
592 (1899) ; Williams v. People, 196 111. 173, Y. 633, 32 X. E. 1014; 4 Chamb., Ev., 2588,
63 X. E. 681 (1902) : State v. Madijran, 57 n. 4.
Minn. 425, 59 X. W. 490 (1894): People v. 52. State v. Sanders, 76 Mo' 35 (1882);
Van Tassel, 156 X. Y. 561. 51 X. E. 274 Reed v. Com., supra; State v. Craemer. 12
(1898) ; ShafTner v. Com., 72 Pa 60, 13 Am. Wash. 217, 40 Pac. 944 (1895); 4 Chamb.,
Rep. 649 ( 1S72) : 4 Chamb , Ev.. 2588, n. 1. Ev., 2588, n. 5.
49. People v. Ebanks, 117 Cal. 652, 49 Pac.
PROBATE FORCE OF REASONING. 652
are the cases in which distinct offenses are most often incidentally proved, 53
it would greatly impair the cogency of the incriminating proof to attempt the
elimination of evidence of statements or other acts tending to show that the
crime in question was not the only one committed by the accused at or about
the same time/' 4 But the other offenses must be connected in some logical or
casual relation with the liability sought to be enforced in the proceeding itself.
An entirely separate and disconnected offense is not admissible merely because
it occurred at or about the same time as the res gestae of the offense on trial. 55
It is not, however, required that the proof of the additional offenses should be
involved in the direct establishment of the crime on trial and relevant for that
purpose. Should it be relevant for a legitimate collateral deliberative object,
as, for example, to corroborate 56 or contradict 5T a witness, to explain an
apparent conflict in the testimony, 58 or the like, it will be regarded as sufficient.
Assault. Perhaps the most common instance of the incidental proof of an
additional offense while establishing the res gestae of a case on trial is in con-
nection with assault. Thus, homicide is frequently accompanied by an as-
sault on the deceased or upon some third person. 59 Rape involves, in many
cases, an assault on the injured woman or upon some one else. 6u The collateral
offense may be robbery. 01 Alany crimes involving serious personal violence
include and embrace the offense of a simple assault. 62 Such incidentally
proved crimes may be either simple or coupled with circumstances of aggrava-
tion, e.g., the use of duress,""' attempt to kill " 4 or the like. 65
Homicide. To establish the res gestae of a particular homicide, it may be
necessary to prove other homicides. This may occur either where the evidence
is circumstantial"' 1 or direct." 7 It may happen in connection with affirmative
proof of the res gestae of the offense 6S or where the effort of the proponent is
to negative some theory advanced by the defence/' 9
53. Walker v. Com, 1 Leigh (Va.) 574 61. State v. Taylor, supra ; Harris v. State,
(1829). 32 Tex Cr. 279. 22 S. W. 1037 (1893).
54. State v Craemer, supra. 62. People v. Chin Bing Quong, 79 Cal. 553,
55. People v. Lane, 100 Cal. 379, 34 Pac. 21 Pac. 951 (1889); State v. McCahill, 72
856 (1893) ; Farris v. People, 129 111 521, 21 Iowa 111, 30 N. W. 553, 33 N. W 599 (1887).
X. E. 821 (1889): Brown v Com., supra; 63. Britt v. State, 9 Humphr. (Tenn.) 31
4 Chamb., Ev.. 2588. n. 9. ( 1848).
56. Toll v. State. 40 Fla. 169, 23 So. 942 64. State v. Sanders, supra.
(1898). 65. Pritchett v. State, 92 Ga. 65, 18 S. E.
57. State v Harris, 100 Iowa 188. 09 X. 536 (1893).
W 413 (1806) : 4 Chamh . Ev . 2588. n 12. 66. Lyons v. People, supra; Com. v. Sturti-
58. Re<r. v. Chambers, 3 Cox C. C. 92 vant, supra; People v Foley, 64 Mich. 148,
(1848). 31 X. W. 94 (1887) : Brown v. Com., supra;
59. People v. Oilmore, 17 Cal. App. 737, 4 Chamb., Ev., 2590, n. 1.
121 Pac. 697 H912) : State v. Sanders, supra; 67. People v. Prantikos, 164 Cal. 113, 127
People v Pallister, supra; 4 Chamb., Ev., Pac. 1029 (1912).
2589, n. 1. 68. Logston v. State, 3 Heisk. (Tenn.) 414
60. Thompson v. State, 11 Tex. App. 51 (1872).
(1881). 69. Smart v. Com., 10 Ky. L. Rep. 1035,
11 S. W. 431 (1889).
653 RES GESTAE. 840
Larceny. In making proof of the res gestae of a particular larceny, it may
be natural and even practically unavoidable to show that other offenses were
committed at or about the same time. 70 If so the court will receive evidence
of them. In like manner, proof of one burglary may involve the establishment
of another. 71 The crimes of obtaining property by false pretences, 72 of em-
bezzlement, 73 receiving stolen goods 7i or robbery 70 stand in the same posi-
tion. 80 of forgery, 70 and uttering forged documents. 77
Dissimilar Offenses. .Naturally, the collateral otfeuse, incidentally estab-
lished, may be dissimilar in nature to that for which liability is claimed in the
action. 78 Arson, for example, is often found in combination wth robbery 79
or burglary. 80 Burglary, if successful, naturally leads to larceny;. 81 if dis-
covered or opposed, to assault 82 and even to homicide. 83 Homicide is fre-
quently accompanied by larceny 84 and frequently grows out of an attempt to
accomplish unlawful ends. 85 Any meeting between those whose interests are
opposed, though the original object with which the interview was sought may
have been a comparatively innocent one, 8 " may culminate in murder or other
serious crime. Robbery itself involves an assault and is frequently accom-
panied by a battery, 87 or by aggravated circumstances, as an attempt to kill, 88
rape, 8 " or obstruction of an officer in the execution of his duty. 90 The last
would occur as naturally as the gathering of a mob leads to rioting or the
doing of malicious mischief. 91
840. [Res Gestae 1 ; Extra-judicial Statements Part of the Res Gestae.
Using the phrase res gestae in its restricted or English sense. 92 the rule with
regard to unsworn statements, so far as these are not considered as proof of
70. Starr v. State, 160 Ind. 661, 67 N E. 80. Id.
527 I 1903) ; Com. v. Hayes, 140 Mass. 366, 5 81. State v. Robinson, supra.
N. E. 264 (1886) ; Haskins v. People, 16 N. Y. 82. Williams v. State. 42 Tex. Cr. 602, 61
344 (1857) ; 4 Chamb., Ev., 2591, n. 1 S. W. 395, 62 S. W. 1057 (1901).
71. State v. Robinson, 35 S. C 340, 14 83. People v. Rogers^ 71 Cal. 565, 12 Pac.
S. E. 766 (1892). 679 (1887); State v. Wagner, 61 Me. 178
72. Com. v. Eastman, 1 Cush. (Mass.) 189, (1873).
48 Am. Dec. 596 (1848) ; Com. v. Daniels, 2 84. Kennedy v. State, 107 Ind. 144, 6 N.
Pars. Eq. Cas. (Pa.) 332 (1847). E. 305, 57 Am. Rep. 99 (1886).
73. People v. Van Ewan, 111 Cal. 144, 43 85. State v. McCahill, supra.
Pac. 520 (1896). 86. Id.
74. Copperman v. People, 56 N. Y. 591 87. State v. Nathan. 5 Rich. L (S. C.) 219
(1874). (1851).
75. People v. Nelson, 85 Cal. 421, 24 Pac 88. Richards v. State, 34 Tex. Cr. 277. 30
1006 (1890); Britt v. State, supra. S. W. 229 (1895)
76. Cross v. People, 47 111. 152, 95 Am 89. State v Taylor, 118 Mo. 153, 22 S. W.
Dec. 474 (1868) ; 4 Chamb., Ev., 2591. n. 7. 806. 24 S. W. 449 (1893).
77. People v. Kemp, 76 Mich. 410, 43 N. 90. State v. Guy, 46 La. Ann. 1441, 16 So
W. 439 (1889). 404 (1894).
78. Powers v. State, 4 Humphr. (Tenn.) 91. Gallagher v. State, 101 Ind. 411 (1884).
274 (1843). 92. See ante, 838.
79. Mixon v. State (Tex. Cr. App. 1895),
31 S. W. 408.
841 PROBATE FORCE OF SEASONING. 654
the fact asserted, is a ve,ry simple one. Such extra judicial declarations are
admissible, when relevant, like any other fact. 93 In other words, a verbal act,
in this connection, differs in no essential particular from other acts. 94 No
special conditions are imposed upon the statement simply because it is a state-
ment. 95 That a given declaration was made is simply a fact which should be
allowed to give rise to any relevant inference which may properly be drawn
from its existence. The rule is the same in criminal cases. 90 In tine, within
the range of the res yestae, what was said by any person including a bystander 9<
may be admitted in evidence.
Constituent Facts. Extrajudicial statements may, a fortiori, be proved
when they are constituent 8 facts. As to their admissibility, little question
can be raised. In fact, they are frequently said to be relevant per se."
Thus, on an indictment for perjury the fact that the defendant spoke the words
now said to be false has no proper connection with the rule against hearsay.
It is simply a verbal act which assists, with other facts, to constitute the liabil-
ity with which the accused is charged. 1 As such, evidence of this character is
admissible as a matter of course, a res yestae or constituent fact. So, in a
trial of a civil action on an oral contract any material extrajudicial statement
made by either of the parties during the period of negotiation in which an
agreement is said to have been reached is merely a res gestae or constituent
fact and is admissible to show the exact contract, if any, between the part-
ies. 2
841. Extrajudicial Statements Part of the Res Gestae; Existence of Statement
Itself. 3 The existence of an unsworn statement may be a constituent fact.
Under such circumstances, the rule against hearsay has no application it
being of little immediate consequence whether the statement as made be true or
false. It is simply received as a fact. 4 The testimony is only admissible as to
the existence of the statement as a constituent fact forming part of the res
yestae. As such it is admissible, just as any other constituency relevant
physical occurrence would be. 5 The statements may take the connected form
of a conversation. In such a case the reporting witness is debarred from
stating that portion of it which he says he heard and remembers because there
93. Commonwealth v. Bond, 188 Mass. 91. 1. People v. Lem You, 97 Cal. 224, 32 Pac.
74 N E. 293 (1905). 11 (1893).
94. Viberg v. State, 138 Ala 100, 35 So. 2. Green v. Crapo, 181 Mass. 55, 62 N. E.
53, 100 Am St. "Rep 22 (1903). 856 (1902).
95. Mitchell v. Colgla/ier, 106 Ind 464, 7 3. 4 Chamberlayne, Evidence, 2595.
N. E 199 ( 1886). 4. People v. Lem You, 97 Cal. 224, 32 Pac.
96. Wood v. State, 92 Ind. 269 (1883). 11 (1893); Stainbrook v. Drawyer, 25 Kan.
97. State v Lasecki, 90 Ohio St. 10, 106 383 (1881) ; Shaw v People. 3 Hun (N. Y.)
N. S. 660, L R. A. 1915 E 202 (1914). 272, 5 Thomps. & C (X,Y.) 439 (1874). See
98. Soe 844 also Jennings v. Rooney, 183 Mass. 577, 67
99. Cowen v Blopmberg, 69 N. J. L. 462, N. E 665 (1903).
55 Atl. 36 (1903). 5. State v. Horton, 33 La. Ann. 289, 290
(1881).
655 RES GESTAE. 842, 843
may have been other additional conversations which he did not hear or does not
recollect. 6
842. [Extra judicial Statements Part of the Kes Gestae] ; Evidence Is Pri-
mary. 7 The evidence furnished by the independently relevant res gestae
declaration is primary. Where the extrajudicial unsworn statement is used
as evidence of the facts asserted, a superior grade of evidence is possible, i.e.,
the testimony of the original declarant on the subject. No better or more con-
vincing evidence of the existence of a statement can be given than the testimony
of the reporting witness who says that he heard it made. In other words, while
the reporting witness, in both cases, testifies directly to the declaration itself,
he states a fact when the unsworn statement is to be used as hearsay which
tends to establish the truth of the facts asserted only in a circumstantial way.
Superior to this, is the direct testimony of the original observer whose state-
ment is reported to the tribunal. The fact, however, that the statement was
made is provable by the primary evidence of any person who heard it. The
statement itself must be relevant 8 and must be proved by competent evidence
and not by hearsoy. 9
843. [Extrajudicial Statements Part of the Res Gestae] ; Forms of State-
ments. 1 "- - The independently relevant statement may be that of a bystander, 11
or creating agency. 12 or as to the existence of a bailment, 13 or claim 14 although
a narrative of past facts is incompetent 15 but even a claim to real esate may
be thus established 16 or as to its boundaries 17 by one in possession 1S in any
form 1!l if the statement possesses objective relevancy. 20 The extrajudicial
statement may constitute a claim to personal property 21 or disclaimer 22 as
6. People v. Daily, 135 Cal. 104, 67 Pac. 905; Faulkner v. Rocket, 335 R. I. 152, 80 Atl
16 (1901). 380 (1911).
7. 4 Chamberlayne, Evidence, 2506. 17. Keefe v. Sullivan County R R., 75 N.
8. Dodge v. vYeill, 158 X. Y. 346, 53 X. E. H. 116, 71 Atl. 379 (1908).
33 ( 1 899 ) 18. Possession authorized by declarant.
9. Xourse v. Xourse, 116 Mass. 101 The objection that declarations as to the char-
(1874). acter of possession are admissible only from
10. 4 Chamberlayne, Evidence, 2597- one exercising it is removed where it appears
2623. that though the property was in possession
11. Weller & Co. v. Camp, 169 Ala. 275, 52 of another, such possession was authorized
So 029 (1910); State v. Lasecki, 90 Ohio by the declarant. Illinois Steel Co v. Pac-
St. 10, 106 X. E. 660, L R. A. 1915 E 202 zocha, 139 Wis. 23, 119 X. W. 550 (1909).
(1914). 19. Walker v. Hughes, 90 Ga. 52, 15 S. E.
12. Moore v. Machen, 124 Mich. 216, 82 N. 912 (1892) : Xodle v. Hawthorne, 107 Iowa
YV. 802 (1000). 380, 77 X. W. 1062 (1809).
13. Greer v Davis Mercantile Co., 86 Kan. 20. Remy v. Lilly, 22 Ind App. 109, 53 X.
680. 121 Pac 1121 (1012). E. 387 (1809) ; Doe v. Jauncy. 8 C & P. 99,
14. Lindsley v. McGrath, 62 X. J. Eq 478. 34 E C. L. 631 (18371 : Holden v Cantrell,
50 Atl. 236 (1001). 88 S. C. 281, 70 S. E. 81. V M911 > : Stacy v.
15. Collins v. Lynch, 167 Pa. St. 635, 31 Atl. Alexander. 143 Ky 152. 136 S. YY. 150 ( 1911 ) .
921 (1895). 21. Traylor v. Hollis. 45 Ind. App. 680. 91
16. Hampe v. Sage (Kan. 1912), 125 Pac. X. E 567 (1910). Declarations by one in
53; Allen v. Morris (Mo. 1912), 148 S. W. possession of personal property claiming title
843
PROBATE FOBCE OF REASONING.
656
in case of creditors' claims. 23 In some jurisdictions such evidence has been
confused with res gestae and such a declaration must be spontaneous. 24 A
conspiracy 25 or a contract 26 may be proved by such statements as by letters
or telegrams 27 when the entire correspondence must be produced 2H while
covering the term of negotiations. 29 The statements to prove a contract may
be those of an agent 30 but none of these statements are admissible when
merely narrative, made after the transaction. 31 They may prove a dedica-
tion 32 or a demand 33 or a denial 34 or disclaimer 35 or a libel 36 or revoca-
tion 3T or sales 38 or representations 39 as the basis of a sale.
may be admissible when the nature of the pos-
session is in question but according to the
weight of authority they are not otherwise
admissible as part of the res gestae. They
are self-serving and hearsay and would enable
a man to manufacture evidence for himself.
Freda v. Tischbein, 174 Mich. 35)1, 140 N. W.
502, 49 L. R. A. ( N. S.) 700 (1913) ; Hopkins
v. Heywood, 86 Vt. 486, 86 Atl. 305, 49 L.
K. A. (N. S.) 710 (1913).
22. Martin v. Martin, 174 111. 371, 51 N. E.
691, 66 Am. St. Rep. 290, affirming 74 111.
App. 215 (1898).
23. Should both title and possession have
been parted with, the declarations of the ven-
dor are incompetent. Fiske v. Small, 25 Me.
453 (1845).
24. Kentucky. Gurley v Starr, 30 Ky. L.
Rep. 974, 99 S. W. 972 ( 1907) .
Maine Wilson v. Rowe, 93 Me. 205, 44
Atl. 615 (1899).
Massachusetts Holmes v. Turners Falls
Co., 150 Mass. 535, 23 X. E. 305, 6 L. R. A.
283 (1890),
A'eto Hampshire. Lawrence v. Tennant,
64 X. H 532, 15 Atl 543 (1888).
A'etc Jersey. Curtis v. Aaronson, 49 N. J.
L. 68, 7 Atl. 886, 60 Am. Rep. 584 (1886).
Pennsylvania. Bender v. Pitzer, 27 Pa.
St. 333 (1856).
Vermont. Child v. Kingsbury, 46 Vt. 47
(1873).
United States. Hunnicut v. Peyton, 102
U. S. 333, 363, 26 L. ed. 113 (1880).
25. Banks v. State, 157 Tnd. 100, 60 N. E.
1087 (1901) (conversation).
26. Sheldon v. Bigelow, 118 Iowa 586, 92
N. W. 701 (1902) (to show that declarant
was a partner) .
27. Clark v. Dales, 20 Barb. 42 (1855).
fJIinoifi. Cobb v. Foree, 38 111. App. 255
isiiOi.
28. See Flynn v. Kelly. 12 O. L. R. 440
(1906). Where the evidence to show an
antenuptial contract has been destroyed by
mutual mistake and declarations in favor
of one have been received the other party is
entitled to show declarations to the contrary.
Gordon v. Munn (Kan. 1912), 125 Pac. 1.
See Georgia R., etc., Co. v. Smith, 83 Ga.
626, 10 S E. 235 (1889).
29. Woods v. Clark. 24 Pick. (Mass.) 35
(1834); Hudson v. Slate, 53 Tex. Civ. App.
453, 117 S. W. 460 (1909).
Narrative statements excluded. North-
western Redwood Co. v. Dicken, 13 Cal. App.
689, 110 Pac. 591 (1910).
30. Frit/, v. Chicago Grain & E Co., 136
Iowa 699, 114 N. W 193 (1907); American
Pure Food Co. v. G. W. Elliott & Co., 151
N. C. 393, 66 S. E. 451, 31 L. R. A. (N. S.)
910 n. (1909); Jungworth v. Chicago, M. &
St. P. Ry. Co., 24 S. D. 342, 123 N. W. 695
(1909) ; Ives v. Atlantic & N. C. R. Co., 142
N. C. 131, 55 S. E. 74 115 Am. St. Rep. 732
(1906).
31. Woods v. Clark, 24 Pick. (Mass.) 35
(1834).
32. Poole v. Commissioners of Rehoboth
(Del. Ch. 1911), 80 Atl. 683.
33. Wallace v. Bernheim, 63 Ark. 108, 37
S. W T . 712 (1896); Gracie v Robinson, 14
Ark. 438 (1854); Seevers v. Cleveland Coal
Co. (Iowa 1912), 138 N. W. 793; Glatfelter
v. Mendels (Pa. Super. Ct. 1911), 46 Pa
Super. Ct. 562 (letter) : Martin v. Tnce (Tex.
Civ App. 1912). 148 S. W 1178. Compare
Walleston v. Fahnestock, 116 X. Y. Suppl. 743
(1909).
34. Clark v. Wood, 34 X. H. 447 (1857).
35. Beasley v. Howell, 117 Ala. 499, 22
So. 989 (1897): Vincent v. State, 74 Ala.
274 (1883); Place v Gould, 123 Mass. 347
(1877); Davis v. Campbell. 23 X. C. 482
(1841).
36.' American Pub. Co. v. Gamble, 115 Tenn.
663, 90 S. W. 1005 (1906).
37. Kennedy's Will, 53 App. Div. 105, 65
657 EXTEAJUDICIAL STATEMENTS. 844, 84:5
844. [Independent Relevancy of Unsworn Statements] ; Extrajudicial State-
ments as Probative Facts. 40 The relevancy of an extra judicial statement when
used as the basis of some inference other than that it is true is not, however,
necessarily constituent. It may equally well be probative. In other words,
the existence of an unsworn statement may not only, as one of the res gestae
properly so called, constitute or assist to constitute the right or liability asserted
but it may also tend to prove, in and of itself, by reason of its very existence,
some mental or bodily condition or other fact which is in its turn, one of the
res gestae or tends to establish the latter. For example, the mental state
with which a given act was done may be a legitimate component of a defend-
ant's liability. At some time not too remote to be relevant, the defendant
is known to have made a declaration which gives a glimpse into his mind, dis-
closing what the mental state in question was. Whether this statement is
true or false, is not the point. The hearsay rule, excluding unsworn declara-
tions as proof of the facts which they assert, is in no way involved. The
mental state is a res gestae fact and the unsworn statement tends logically to
prove it. Or again, on a civil action, the knowledge of one of the parties at a
given time may be a material fact. The circumstance that the party made a
given statement to someone or that someone made a given statement to him
may be a very enlightening fact as to what the person in question knew. As
before, the rule against hearsay plays no part. Only a question of proving a
material fact in the most natural way possible is apparently involved. There
seems, however, to be much confusion among the decisions upon this simple
matter.
845. [Extrajudicial Statements as Probative Facts] ; Bodily Sensation. 41
Wherever the existence of a bodily condition is a res gestae or probative fact,
the extrajudicial declarations, articulate or inarticulate, which commonly ac-
company, characterize or tend to establish the existence, of such a bodily con-
dition, will be received in evidence. 42 The statement must be one of fact,
rather than of opinion.
.4 Matter of Necessity. Apart from the incompetency of parties to testify,
which can hardly be regarded at the present day as an important consideration,
the chief necessity for relying on circumstantial evidence, including extra-
N. Y. Suppl. S79 (11)00). affirmed 167 X. Y. 1 L. R. A. ( N. S.) 386, 51 S. E. 748 (1905);
163, 60 N. E. 442 (1901 i. Smith v. Birge, 126 Til. App. 596 (1906).
38. Kenney v. PhiMipy. 91 Ind. 511 (1883). 40. 4 Chamberlayne, Evidence, 2624.
Offers to buy or sell real estate. It has 41. 4 Chamherlayne, Evidence, 2625-
been said tliat any evidence of offers for the 2636. Declarations as to bodily condition,
purchase or sale of real estate are hearsay. and admissibility of. See note, Bender, ed.,
unless made by one under oath and subject 63 X. Y. 196. Expression of pain. See note,
to cross-examination. Helena Power Trans- Bender, ed., 144 X. Y. 137. Subsequent dec-
mission Co. v. McLean. 38 Mont. 388, 99 Pac. larations as to past sufferings as res gestae.
1061 (1909). See note. Bender, ed., 151 X. Y. 282. 316.
39. John Silvey & Co. v. Tift, 123 Ga. 804, 42. Springfield Consol. R. Co. v. Hoeffner,
175 111. 634, 51 X. E. 884 (1898).
845
PROBATE FORCE OF REASONING.
658
judicial statements used as facts, in proof of bodily sensation consists in the
difficulty of procuring other evidence. 43
\Vlio May Testify as to Statements. The extrajudicial statement of one
suffering pain or conscious of other bodily sensation may, as well as his coher-
ent or incoherent ejaculation on the same subject, be testified to by any one
who heard it. 44 Accordingly, a wife, 4 '"' parent, 40 daughter, 4 ' nurse, 4 * other
attendant, 45 * or even a mere bystander 5u is permitted to detail statements to
the court. Even the declarant himself may testify as to his own statements.'' 1
The statements may be articulate 52 or inarticulate,^ excluding inference 54
and narrative r>5 and must be made by the party, 00 and their weight depends
on whether they are natural or feigned OT and consequently their evidentiary
nature seems greater in proportion to the spuutaneousuess of the utterances. ' >s
Hence statements to physicians for the purpose of diagnosis and treatment
are of great probative force 50 as the inducement to tell the truth is great,
although in some courts such statements are received only when involuntary. 60
43. ' If other persons could not be permit-
ted to testify to them, when the person in-
jured might be a witness, there might often
be a defect of proof. The person injured
might be unable to recollect or state them
by reason of the agitation and suffering oc-
casioned by it." Kennard v. Burton. 25 Me.
39, 43 Am. Dec. 249 (1845), per Shepley. J
44. Rupp v. Howard, 114 Iowa 65. 86 X. W.
38 (1901).
45. Geiselman v Schmidt, 106 Md 580. 68
Atl. 202 U907).
46. Western Steel Car & F. Co. v. Bean, 163
Ala 255, 50 So 1012 (1909).
47. Sheldon v. Wright, 80 Vt, 298, 67 Atl.
807 (1907).
48. Green v. Pacific Lumber Co., 130 Cal
435, 62 Pac. 747 f 1900) ; Brown v Mt Holly,
69 Vt. 364, 38 Atl 69 (1897).
49. Bagley v. Mason, 69 Vt. 175, 37 Atl. 287
(1896) ; Drew v. Sutton, 55 Vt. 586, 45 Am.
Rep. 644 (1882).
50. Fondren v. Durfee. 39 Miss 324 (1860) ;
Perkins v. Concord K. Co., 44 N. H. 223
(1862); Northern Pac. R. Co. v. Urlin, 158
U. S. 271. 15 S. Ct. 840 ? 39 L. ed 977 (18941.
51. Alexandria v. Young, 20 Ind. App. 672,
51 X. E 109 (1898).
52. An exclamation of a person, when tak-
ing a dose of supposed medicine, that it
burns her stomach, is admissible on the trial
of a oharge of poisoning such person. State v.
Buck .'Kan. 1912). 127 Pac 631
53. Hasenlocher v R Co.. 99 N Y 136,
137. 1 \*. E 536 (1885). affg. 33 Hun 664
( !904)
54. Southern Anthracite Coal Co. v. Hodge,
99 Ark. 302, 139 S. W. 292 (1911); Corbett
v. St. Louis, etc., R. Co, 26 Mo. App. 621
(1887); Williams v. Great Northern R. Co,
68 Minn. 55. 70 X. W 860, 37 L. R. A. 199
(1*97); Firkins v. Chicago Great Western
R Co, 61 Minn. 31. 63 X. W. 172 (1895);
Louisville, etc.. R. Co. v. Stacker, 86 Tenn.
343. 6 S. W. 737. 6 Am. St. Rep. 840 ( 1888).
55. West Chicago St R. Co. v. Carr, 170
111. 478, 48 X. E. 992 (1897).
56. " The declarations of the party are re-
ceived to show the extent of latent injuries
upon the person, upon the general ground
that such injuries are incapable of being
shown in any other mode except by such dec-
larations as to their effect." State v. David-
son. 30 Vt 377. 383, 73 Am. Dec. 312 (1858),
per Red field, C. J.
57. Chicago Travelers' Ins. Co y. Mosley, 8
Wall (L T S.) 397, 19 L. ed 437 (1869).
58. Topeka v. High, 6 Kan. App. 162, 51
Pac. 306 (1897); Mulliken v. Corunna, 110
Mich. 212, 68 X. W. 141 (1896); Lewke v.
Dry Dock, etc., R. Co., 46 Hun (N. Y.) 283,
11 X. Y. St. Rep. 510 ( 1887 ) ; Powers v. West
Troy, 25 Hun (X Y.) 561 (1881) : Baker v.
Griffen, 10 Bosw. (X. Y.) 140 (1863) ; Were-
ly v. Persons, 28 X. Y. 344, 84 Am. Dec. 346
(1863).
59. Greinke v. Chicasro City Ry. Co.. 234
111. 564, 85 X. E. 327 (1908) ; afflrminfj judg-
ment, 136 111. App. 77 (1007K
60. Kennedy v. Rochester City, etc., R. Co.,
130 X. Y. 654, 29 X. E. 141, 3 Silv. 591
(1891).
659
EXTEAJUDICIAL STATEMENTS.
8-i6, 847
846. [Extrajudicial Statements as Probative Facts]; Identification. 61
Among the iiu^t common uses to which an unsworn statement when employed
in its independently relevant capacity, may be put, is that of identification*' 2 '
Regarded as proof of the facts asserted, the unsworn statement may possess
no evidentiary value. It may, however, whenever the fact is relevant, " serve,
in a circumstantial way, to identify a person," 4 place,'' or any article of
property, real lje or personal." 7 It may segregate a particular transaction from
all others. 68 Its existence may be a proper fact by which to nx a date, 09 as for
example to determine the time of a payment. Tu Judicial administration may
properly add the proviso that evidence of this class will be received when more
cogent or conclusive proof cannot be produced. 71
847. [Extrajudicial Statements as Probative Facts] ; Mental Condition. 72
An extrajudicial statement may serve, as few other things can, to illustrate the
condition of the mind of the speaker. 73 Distinguishing, in the present con-
61. 4 Chamberlayne, Evidence, 2637.
62. Blodgett v Park (X. H. 1912), 84 Atl.
42 ( testimony of witness ) .
63. Perry v. Smith, 22 Vt. 301 (1850).
64. Maryland See Suman v. Harvey, 114
Md. 241, 79 Atl. 187 (1911).
Rhode Island. State v. McAndrews, 15 R.
I. 30, 23 Atl. 304 (1885).
Texas. Keck v. \Yoodward, 53 Tex. Civ.
App. 267, 116 S. W. 75 (1909).
United States. J. S. Toppan Co. v. Mc-
Laughlin, 120 Fed 705 (1903). Statements
by the victim of a crime immediately after
the crime identifying the criminal are admis-
sible in evidence as considerable latitude is
always allowed in questions of identification.
State v. Kindling, 123 Minn. 413, 144 X. \V.
142, 49 L. R. A. (X. S. ) 449 (1913). The
statement of one who has been knocked sense-
less by a robber as to who had hit him made
immediately after he had regained conscious-
ness is not admissible as part of the res
gestae. Rogers v. State, 88 Ark. 451, 115 S.
W. 156, 41 L. R. A. (X. S.) 857 (1908). A
statement by the deceased made from five to
fifteen minutes after the shooting to a wit-
ness who had jrone to give the alarm and im-
mediately returned is competent as part of
the res gestce. State v. Laboon, 107 S. C. 275,
92 S. E. 622, L. R. A. 1917 F 896 i 1917 I .
66. Hoffner v. Custer. 237 111 64,' 86 N. E.
737 (1908) : Simpson v. Blaisdell, 85 Me. 199,
27 Atl. 101. 35 Am. St Rep 348 (1892) ; Rus-
sell v. Werntz, 24 Pa. St. 337 (1855).
67. Pool v. Bridsres. 4 Pick. (Mass.) 37 S
(1826); People v. Bowling, 84 X. C. 478
( 1881 ) : Parratt v. Watts, 47 L. J. C. P. 79,
37 L. T. Rep. iX. S.) 755 (1878).
68. Earle v. Earle, 11 Allen (Mass.) 1
(1865) ; State v. Ward, 61 Vt. 153, 17 Atl.
483 (1888); Hill v Xorth, 84 Vt. 604
(1861).
69. Georgia. Harris v. Central R. Co., 78
Ga. 525, 3 S. E. 355 (1887).
Michigan. Grosvenor v. Ellis, 44 Mich.
452, 7 X T . W. 59 (1880).
.\eic Jersey. Browning v. Skillman, 24
X. J. L. 351 (1854).
Vermont. State v. Ward, 61 Vt. 153, 17
Atl. 483 (1888).
70. Mitchell v. Ball, 2 Harr. & G. (Md.)
159 (1828); Bewley v. Atkinson, 13 Ch. D.
283, 49 L. J. Ch. 153, 41 L. T. Rep. (N. S.)
603. 28 Wkly Rep. 638 ( 1880 )
71. Martin v. , : inson, 7 Ga 22S. 50 Am.
Dec 403 ilSiit, The suggestion has even
been made that the declarant must be affirma-
tively shown to be dead if his unsworn
statement is to be received. Nehring v.
McMurrian. (Tex. Civ. App. 1898), 46 S. W.
369.
72. 4 Chamberlayne, Evidence, 2638-
2653.
73. The probative declaration' may follow,
in case of a continuous mental condition, the
precise time of the transaction in question.
Piercy v. Piercy. 18 Cal. App. 751. 124 Pac.
561 (1012). This may be put into the form
of saying that the illustrative declaration
need not be part of the res gestae. Piercy v.
Piercy, 18 Cal. App. 751, 124 Pac. 561 (1912).
847
660
nection, the actual force and power of the mind itself from proof of its con-
tents, those mental states which are also seen to be established by the relevant
utterances to which they give rise, it may fairly be said that the actual con-
stitution of the mind is often appropriately shown by these verbal manifesta-
tions, 74 as in the case of declarations by a testator. 75 In their assertive capa-
city, as proof of the facts which they declare, the unsworn statements are
hearsay ; 76 and, in the absence of some special reason for receiving them, are
to be rejected. As a general rule, narrative statements of past transactions
which are without a circumstantially relevant quality are to be excluded. 77
The statement must have been made by the individual whose condition is in
question 78 either before, 79 accompanying 80 or after 81 the principal event.
In this way may be shown the mental capacity for resistance,* 2 mental weak-
ness, 83 (all of which may be shown by other modes of proof) 84 mental states 85
when relevant, 80 excluding narrative 8T as assent 88 or dissent 89 belief, 90 dis-
74. Sargent v. Burton, 74 Vt. 24, 52 Atl. 72
(1901) See also Thorn v. Cosand, 160 Ind.
566, 67 N. E. 257 (1903).
75. In re Cooper's Will 75 X. J Eq. 177,
71 Atl 676 (1909). Subsequent declarations
of testator to show undue influence. See note,
Bender, ed., 151 N. Y. 111. Declarations of
testator to show undue influence and condi-
tion of his mind. See note, Bender, ed., 151
N. Y. 111.
76. '' When such an issue (one of mental
capacity) is made it is one which relates to
a state of mind which was involuntary, and
over which the deceased had not the control
of the sane individual, and his declarations
are admitted, not as any evidence of their
truth, but only because he made them, and
that is an original fact from which, among
others, light is sought to be reflected upon
the main issue of testamentary capacity."
Throckmorton v. Holt, 180 U S. 573, 45 L. ed.
663. 21 Sup. Ct. 474 (1900), per Mr. Justice
Peckham; quoted in Lipphard v. Humphrey,
209 U. S. 272, 52 L ed. 783,' 28 Sup. Ct 561
(1907).
77. Steel v. Shafer, 39 Til App. 185 (1800) :
Church of Jesus Christ, etc. v. Watson. 25
Utah 45, 69 Pac. 531 (1902).
78. People v. Pico. 62 Cal 50 (1882);
Smith v. Hickenbottom. 57 Iowa 733, 11 N.
W. 664 (1882): Barker v. Pape, 91 N. C.
165 (1884).
The fact of suicide may be proved by dec-
larations of the deceased person of his inten-
tion to commit suicide when such declaration
Is made a short time before death. Klein v.
Knights & Ladies of Security, 87 Wash. 179,
151 Pac. 241, L. R. A. 1916 B 816 (1915).
79. In re Goldthrop, 94 Iowa 336, 62 N. W.
845, 58 Am. St. Rep 400 (1895) ; Pickens v.
Davis, 134 Mass. 252, 45 Am. Rep. 322
(1883); Dinges v. Branson, 14 W. Va. 100
(1878).
80. Pickens v. Davis, 134 Mass. 252, 45
Am. Rep. 322 (1883).
81. Iowa. In re Goldthorp, 94 Iowa 336,
62 X. W. 845, 58 Am. St. Uep. 400 (1895).
Minnesota. Pinney's Will, 27 Minn. 280, 6
X. W. 791, 7 X. W. 144 (1880)
82. Shiler v. Bumstead, 99 Mass. 112
(1868) ; Herster v. Herster, 122 Pa. St. 239,
16 Atl. 342, 9 Am. St. Rep. 95 (1887).
83. Wilkinson v Pearson, 23 Pa. St. 117
(1854). See also Thorn v Cosand, 116 Ind.
566. 67 X. E. 257 (1903).
84. McRae v. Malloy, 93 X. C. 154 (1885) ;
Rouch v. Zehring, 59 Pa. St. 74 ( 1868) ; Chess
v. Chess, 1 Penr. & W. (Pa.) 32, 21 Am Dec.
350 (1829).
85. State v. Utley, 132 X. C. 1022, 43 S. E.
820 (1903) (intelligence notwithstanding in-
toxication). Plaintiff's declaration of want
of affection in breach of promise case. See
note. Bender, ed.. 24 X. Y. 253.
86. Mack v. Porter, 72 Fed. 236, 18 C. C.
A. 527 (1896).
87. Flannery v. Van Tassel. 127 X. Y. 631,
27 X E. 393, 3 Silvernail 456 (189M.
88. Acceptance of a gift may be shown by
evidence of declarations to that effect. Sup-
ple v. Suffolk Bank, 108 Mass. 393, 84 X. E.
432, 126 Am. St. Rep. 451 (1908).
89. Wood v. Fiske. 62 X H. 173 (1882);
Brown v. State (Tex. Cr. App. 1894), 28 S.
661
EXTRA JUDICIAL STATEMENTS.
848
gust 91 or annoyance, 92 duress, 90 fear. 94 good 95 or bad 96 faith, hatred, 97 or
impressions 98 produced on the mind of the declarant by certain occurrences.
848. [Extra judicial Statements as Probative Facts; Mental States]; Intent
and Intention." Pre-eminent in importance among mental states stand intent
and intention. In connection with moral conduct, especially that for which
criminal sanctions are invoked, intent apparently plays by far the more im-
portant role, while intention seems supreme in the field of intellect. How-
ever this may be, both intent and intention l may be shown by the use of extra-
judicial statements of a person accompanying the doing by him of the act in
question and which tend logically to explain or characterize it. In this way
the fact that persons intended to enter upon a journey may frequently be es-
tablished by their unsworn statements, 2 proof occasionally extending even to
facts incidentally asserted. 3 Statements of the intention of the testator made
before or after the execution of his will are generally received in England 4 but
not in this country. 5 The admissibility of the statements may well depend on
W. 536; Evarts v. Young, 52 Vt. 329 (1880).
90. Ferguson v. Boyd, 169 Ind. 537, 81 N.
E. 71, 82 N. E. 1064 (1907).
91. Kearney v. Farrell, 28 Conn. 317, 73
Am. Dec. 677 (1859).
92. Gloystine v. Com., 33 S. W. 824, 17
Ky L. Rep. 1187 (1896).
93. Wills cannot be impeached by the sub-
sequent declarations of the testator concern-
ing duress although his contemporaneous
statements may be received as this would be
allowing revocation in a way not permitted by
the statute. Jackson v. Kniffen, 2 Johns. (X
Y.) 37. 3 Am. Dec. 300 (1806): Earp v.
Edgington, 107 Tenn. 23. 64 S. W 40 (1901).
94. Barney v. Quaker Oats Co., 82 Atl. 113
(1912).
95. Robson v Hamilton, 41 Oreg. 230. 60
Pac. 651 (1902).
96. Goldstein v Morgan, 122 Iowa 27, 96
X. W. 897 (1903) (fraud in execution of
bill of sale)
97. " The usual expressions of such feel-
ings are original evidence, and often the only
proof of them which can be had." Jacobs
v Whitcomb, 10 Cush. (Mass.) 255. 257
( 1 852 ) . per Bigelow, J.
98. Kearney v. Farrell, 28 Conn 317, 73
Am. Dec. 677 (1850) (complaints of odors in
an action for a nuisance).
99. 4 Chamberlayne, Evidence, 2654-
2661.
1. People v. Conklin, 157 X. Y. 333. 67 X.
E. 624 (1903).
2. Northwestern Redwood Co. v. Dickson,
13 Cal. App. 689. 110 Pac. 591 (1910), per
Hart, J. A statement made by one at eight
o'clock in the evening as to where he intended
to spend the night are not part of the res
gestae to show his intention in leaving his
home at ten o'clock as the statement is not
contemporaneous, with the act Foster v.
Shepherd, 258 111. 164. 101 X. E. 411, 45 L.
R. A. (X S.) 167 (1913).
3. Inness v. R. Co., 168 Mass. 433. 47 N. E.
193 ( 1897 ) : Matthews v. Great Northern
R Co, 81 Minn. 363. 84 X. YV. 101, 83 Am.
St. Rep. 383 (1900) ; Lake Shore, etc., R. Co.
v. Herrick, 49 Ohio St 25, 29 X E 1052
(1892). But compare Chicago, etc., R. Co
v. Chancellor, 165 111. 438. 46 X. E. 269
(1897).
4. " The declarations which are made be-
fore the will are not, I apprehend, to be taken
as evidence of the contents of the will which
is subsequently made they obviously do not
prove it; and wherever it is material to prove
the state of a person's mind, or what was
passing in it. and what were his intentions,
there you may prove what he said, because
that is the only means by which you can
find out what his intentions were " Sugden
v. St. Leonards, L. R 1 P. D. 154. 251 (1876),
per Mellish, L. J. See, however, Throckmor-
ton v. Holt, 180 U S. 552. 21 Sup. Ct 474,
45 L. ed. 663 (1901).
5. Gordon's Will, 50 X'. J. Eq 307. 424,
26 Atl. 268 (1802) : Grant v. Grant. 1 ^andf.
Ch (X. Y ) 235. 237 (1844)
Some American courts follow the English
849
PBOBATE FORCE OF SEASONING.
662
their probative weight as whether made without motive to falsify 6 but may
have a wide scope 7 when the mental condition at the time is relevant 8 even
in criminal eases 9 and although self-serving 10 but excluding narrative. 11
849. [lExtra judicial Statements as Probative Facts] ; Illustrative In-
stances. 12 The mental state of intent or intention, being relevant in many
connections to determine the nature, purpose or quality of an act, 13 only occa-
sional instances,' illustrative of the rule now under consideration, can well be
given. Wherever the psychological fact is admissible, the extrajudicial state-
ment fairly indicative of its existence may be received as a legitimate means of
proving it. But on the contrary, should the mental state itself be immaterial,
as where the law affixes consequences regardless of the intent or intention with
which the act was done, the unsworn declaration is rejected, 14 not because the
extrajudicial statement is not a proper method of proving the fact but because
the latter itself cannot be proved. For admissibility, it is of course essential
that the unsworn statement, oral 1B or in writing 10 should constitute a relevant
rule. McDonald v McDonald, 142 Ind. 55,
41 X E. 336 ( 1895) ; Lane v. Hill, 68 N. H.
275, 44 Atl 393, 73 Am. St. Rep. 591 (1895).
6. Rogers v Manhattan L. Ins Co., 138 Cal.
285, 71 Pac. 348 ( 1903) ; Thorndike v. Boston,
1 Mete. (Mass.) 242 (1840) ; Hunter v. State,
40 N J L. 495 (1878); Mutual L Ins. Co.
v. Hillmon. 145 U. S. 285, 12 S. Ct 909, 36
L ed 706 (1892).
7. Walker v. State, 85 Ala. 7, 4 So. 686, 7
Am. St. Rep. 17 (1887); Durling v Johnson,
32 Ind 155 (1869); Jones v. Brownfield, 2
Pa St 55 (1845) ; Glass v. Bennett, 89 Tenn.
478. 14 S. W. 1085 (1891)
8. Com. v. Felch, 132 Mass. 22 (1882).
9. Indiana. Grimes v. State, 68 Ind. 193
(1879).
Tennessee Garber v. State, 4 Coldw. 161
(1867).
United States. \J. S. v. Craig, Fed. Cas.
No 14.883, 4 Wash C. C. 729 (1827).
10 Wilson v. State, 33 Ark. 557, 34 Am.
Rep. 52 (1878); State v. Abbott, 8 W. Va.
741 (1875)
11 Flannery v. Van Tassel, 127 N. Y 631,
27 X. E. 393, 3 Silvernail 456 (1891). The
purpose of an employee in starting a machine
may not be shown by his statement made
twenty minutes after the accident while he
was being carried to the hospital as this is
not part of the res gestae. It is mere nar-
rative and not spontaneous statement. Ber-
nard v Grand Rapids Paper Box Co., 170
Mich 238, 136 N W. 374, 42 L. R. A. (N. S.)
930 (1912). Statements of the plaintiff as
to why he was where he was prior to the
accident are not admissible as part of the
res gestae although made immediately after
the accident as they were not part of the ac-
cident did not characterize it nor throw
any light upon it, but were purely narrative
giving an account of a transaction wholly
past, and depending for their truth wholly
upon the accuracy and reliability of the de-
ceased and the verity of the witness who
testified to it. Hobbs v. Great Northern R.
Co., 80 Wash. 678, 142 Pac. 20, L. R. A. 1915
D 503 (1914). Declarations by one killed
on the railroad track that he would throw
himself in front of a train when he was
ready to die are not admissible as evidence of
suicide Greenacre v. Filby, 276 111 294,
114 N. E. 536, L. R. A. 1918 A 234.
12. 4 Chamberlayne, Evidence, 2662-
2665.
13. Fossion v. Landry, 123 Ind. 136, '>4 N.
E. 96 (1890); State v. Cross, 68 Iowa 180,
26 N. W. 62 (1885); State v. Shelledy, 8
Iowa 477 (1859).
14. Fitzpatrick v. Brigman, 130 Ala. 450. 30
So. 500 (1901); Germain v. Central Lumber
Co., 116 Mich. 245, 74 N. W. 644 (1898):
Phoenix Mills v. Miller, 42 Hun 654, 4 N. Y.
St. Rep. 787 (1886); Patterson v. Smith, 73
Vt 360, 50 Atl. 1106 (1901).
15. Zimmerman v Brannon, 103 Iowa 144,
72 X. W. 439 (1897) ; Haywood v. Foster, 16
Ohio 88 (1847) ; Cullmans v. Lindsay, 114 Pa.
St. 166, 6 Atl. 332 (1886).
16. Willingham v. Sterling Cycle Works,
663 EXTRA JUDICIAL STATEMENTS. 850
manifestation of the particular intent or intention. Otherwise, the utterance
is irrelevant, i.e.. is not evidence at all.
Subject to these considerations statements as to intention have been received
to show abandonment, 17 an act of bankruptcy 18 delivery 19 as in case of a
gift, 2 " or domicile. 21
850. [Extra judicial Statements as Probative Facts] ; Knowledge. 22 Few
mental states are of greater importance in the view of the law than that of
knowledge.
Statement to A. Extra judicial statements containing relevant informa-
tion, or capable of conveying it, which have been made to one, say A, who sub-
sequently acts in the matter, may be received for the purpose of showing the
extent of his knowledge at a given time. 23 That the statement should have
been made directly to A himself is by no means required. The rule is satis-
fied if it is shown that an unsworn declaration covering the fact in question
was in some way brought to his attention. 24
Statements by A. Where the existence of the psychological fact of knowl-
edge on the part of A is relevant it may be established not only by the extra-
judicial statements made to him by others but by the unsworn declarations
which he himself may make. In this way, not only may A's knowledge but
his lack of it 25 be shown. The statement is equally competent, though shown
to be false. 26
In the same way general knowledge on the part of A 27 or knowledge by
others 2S or reputation 29 may be shown as evidence of A's knowledge.
113 Ga. 953, 39 S. E. 314 (1901) ; Sutter v. X. Y. 623, 59 X. E. 1121 (1900) ; Titus v.
Rose, 169 111. 66, 48 X. E. 411 (1897) : Kings- Gage, 70 Vt. 13, 39 Atl. 246 (1896).
ford v Hood. 105 Mass. 495 ( 1870) ; Raymond 24. Boston Woven Hose. etc.. Co. v. Kendall,
v. Richmond, 88 X. Y. 671 (1882). 178 Mass. 232, 59 X. E. 657. 51 L. R. A. 781.
17. Union Oil Co v Stewart, 159 Cal. 149, 86 Am. St. Rep. 478 (1901).
110 Pac. 313 (1910). 25. Kruter v. Bomberger, 82 Pa. St. 59, 22
18. Cornelius v. State. 12 Ark. 782, 806 Am Rep 750 (1876).
(1852). 26. Jones v. State, 103 Ala. 1, 15 So. 891
19. Holcomb v Campbell, 42 Hun 398, 4 (1894).
X. Y St. Rep. 799, affirmed 118 N". Y. 46, 27. Putnam v. Gunning. 162 Mass 552. 39
22 X. E. 1107 (1886). X E. 347 (1895) (circulation department of
20. Leitch v. Diamond Xat Bank of Pitts- newspaper containing statement).
burgh (Pa 1912), 83 Atl 416: Schauer v. 28. Knowledge of his family. Covington
Von Schauer (Tex. Civ. App. 1910). 138 S. v. Geyler. 12 Ky. L Rep. 466 (1890); Hart
W. Mr,. v. Xewland, 10 X C. 122 (1824).
21. Matter of Xewcomb. 192 X. Y 238. 84 29. Woods v. Montevallo Coal, etc., Co.,
X. E. 950 (1908). affirming order 107 X. Y. 84 Ala. 560. 3 So 475, 5 Am. St. Rep. J
Suppl. 1139, 122 App Div. 920 (1907) (1888); Stalling* v State. 33 Ala. -
22. 4 Chamberlayne, Evidence, 2666- (1859): Ward v. Herndon, 5 Port. (Ala.) 382
2670. (1837): Chase v. Lowell. 151 Mass 422, 24
23. State v. Grote. 109 Mo 345. 19 S. W. N. E. 212 (1890) : Browning v. Skillman. 24
93 (1891): State v. Jones. 50 X. H. 369. 9 X J. L. 351 (1854); Adams v. State, 25
Am. Rep. 242 (1871) ; Darling v. Klock, 165 Ohio St. 584 (1874).
851,852
PROBATE FORCE OF REASONING.
664
851. [Extrajudicial Statements as Probative Facts] ; Illustrations. 30 Extra-
judicial statements may be used to show motive as love or friendship, 31 mal-
ice, 32 or other motive 33 or provocation 34 or the reasons assigned for certain
conduct. 35 The existence and etfect of undue influence 30 may also be shown
by such statements or willingness to do any particular act.' 5 '.
Such statements may also be used to show political opinions '^ but moral
qualities can be proved only by evidence of reputation under a rule of .sub-
stantive law. 39
852. [Independent Relevancy of Unsworn Statements] ; Extrajudicial State-
ments as Deliberative Facts. 40 The independent relevancy of unsworn state-
ments may, however, be not only constituent or probative in its nature but also
deliberative. In other words, the extrajudicial declaration may not only
constitute an element in the right or liability placed in issue by the pleadings
or tend to prove the existence of a res gestae fact, but its office may be to assist
the tribunal in weighing the probative force of more individually significant
evidence. Statements or other facts employed in this deliberative way may
come to the tribunal within the time or space limit of the res gestae or in con-
nection with probative facts. Their relevancy, however, never, on this account
becomes constituent or probative but remains at all times simply deliberative.
Such statements may be used to show bias, 41 or to corroborate the evidence
of the witness 42 or to fix his attention 48 or refresh his memorv 44 or to show
30. 4 Chamberlayne, Evidence, 2671-
2678.
31. McKenzie v. Lautenschlager, 113 Mich.
171, 71 X W. 489 (1897).
32. Knapp v. Wing, 72 Vt. 334, 47 Atl. 1075
(1900).
33. White v. East Lake Land Co , 96 Ga.
415, 23 S. E. 393, 51 Am. St. Rep 141 (1895).
34. People v. Lewis, 3 Abb. Dec. (X. Y.)
535, 3 Transcr. App. (N. Y.) 1, 6 Abb. Pr.
N. S. (N. Y.) 190, 41 How Prac. 508 (1867) ;
Green v. Cawthorn, 15 X. C. 409 (1834).
35. Wilkinson v. Service, 249 Til. 146, 94
N. E. 50, 22 Am. & Eng. Ann. Cas. 41 (1911).
Where a deed is attacked as being made in
fraud of creditors the statements of the grant-
ors at the time the deed was drawn are not
admissible in evidence to show their purpose
in signing it, especially when they can both
testify. The statements are not part of the
res gestae. Johnston v. Spoonheim, 19 N. D.
191, 123 N. W. 830. 41 L. R. A. (N. S.) 1
(1909).
36. Hagar v. Norton, 188 Mass. 47, 73 X. E.
1073 (1005).
Declarations of a beneficiary which are so
connected with the making of the will in
point of time and circumstance as to give
color thereto will be received in evidence as
part of the res gestae upon the issue of fraud
and undue influence. James v. Fairall ( Iowa
1912), 134 N. W. 608.
37. Long v. Rogers, 17 Ala. 540 (1850);
Walter v. Victor G. Bloede Co., 94 Md. SO, 50
Atl. 433 (1901): Evans v. Jones, 8 Yerg.
(Tenn.) 461 (1835).
38. Extrajudicial statements indicative of
political opinions may be contained in a ser-
mon. Rosewell's Trial, 10 How. St. Tr. 214
(1864).
39. Boies v. McAllister, 12 Me. 308 (.1835) ;
Hart v. Reynolds, 1 Heisk (Tenn.) 208
(1870). Should evidence of character be ir-
relevant or otherwise inadmissible, proof of
eputation cannot be made. Baldwin v. West-
ern R. R. Corp.. 4 Gray (Mass.) 333 (1855)
(careless) .
40. 4 Chamberlayne, Evidence, 2679-
2685.
41. Potter v. Brown, 197 X. Y 288, 90 N.
E. 812. 91 X. E. 1119, reversing 125 App. Div.
640, 109 X. Y Suppl. 1075 (1910).
42. Gill v. Stayer, 93 Md. 453, 49 Atl. 650
(1901).
665 UNSWORN STATEMENTS. 853-855
his good or bad faith 45 or to identify a date 40 or to impeach the wit-
ness. 4 '
853. [Independent Relevancy of Unsworn Statements]; Form of Statement;
Oral. 48 The independently relevant statement, i.e., the extrajudieial declara-
tion grounding some other inference than that of its truth may be accepted by
judicial administration as is abundantly seen passim, either in oral 4!) or in
written form. Included among these, may be the self-serving declarations of
third persons. 5 "
The statement may be in any form, as in a record, 51 or note 52 or even in a
newspaper. 53
854. [Independent Relevancy of Unsworn Statements]; Reputation. 54 As
reputation the composite extrajudieial statement in which the individual
voices are lost may be treated as a form of hearsay as evidence of the facts
asserted, so equally it may be, in certain connections, regarded as an extra-
judicial statement independently relevant. For example, the existence of a
given reputation with regard to a certain person's habits of drunkenness may
. be admissible as bearing upon the reasonable nature of the conduct of an-
other in employing him or continuing to employ him in a position of responsi-
bility 55 reposing confidence in him, 50 as shown by entrusting him with prop-
erty. 57 In much the same way, the existence of a reputation may be an inde-
pendently relevant fact bearing on the question as to whether proper judgment
was exercised in the selection of a trustee 5S or the like. In short, in many con-
nections the existence of a given reputation, while not probative as to its truth,
is of evidentiary value in deciding as to whether one who knew of it acted with
due and proper care in doing as he actually did. 59
855. [Independent Relevancy of Unsworn Statements] ; Libel, etc. 60 In
43 State v. Nordstrom, 7 Wash. 506. 35 Co., 116 La. 324. 40 So. 324 (1906) (inven-
Pac 382 (affirmed 164 U. S. 705, 17 S. Ct. tory).
997, 41 L ed. 1183 I 1893). 52. McCann v. Preston, 79 Md. 223, 28 Atl.
44. Howser v. Com.. 51 Pa. St. 332 (1865). 1102 (1894).
45. Cowen v. Bloomberg 69 N. J. L. 462, 55 53. Jewell v. Jewell, 1 How. (U. S.) 219,
Atl. 36 (1903). 11 L. ed. 108 (1843).
46. McXitt v. Henderson, 155 Mich. 214. 54. 4 C'hamherlayne, Evidence. 2688.
118 X. W. 974, 15 Detroit Leg. X 987 H908). 55. Fitch v. Woodruff, etc., Iron Works. 29
47. Grill v. O'Dell, 113 Md. 625. 77 Atl. Conn. 82 (I860) ; Plummer v. Ossipee, 59 X.
784 11910) H. 55 (1879).
48. 4 Chamberlayne. Evidence. 26S6, 56. Monahan v Worcester, 150 Mass. 439,
2687. 23 X. E. 228. 15 Am. St. Rep. 226 (1890).
49. Dodge v. Weill, 158 X. Y. 346, 53 X. E. 57. Ficken v. Jones, 28 Cal 618 (1865).
33 (1899). 58. Holmberg v Dean. 21 Kan. 73 (1878).
50. South Hampton v. Fowler, 54 X. H. 197 59. People v. Anderson, 39 Cal. 703 (1870) ;
(1874). Wormsdorf v. Detroit City R. Co., 75 Mich.
51. Darmitzer v German Sav . etc., Soc., 472. 42 X. W. 1000, 13 Am. St. Rep. 453
23 Wash. 132, 62 Pac. 862 affirmed 192 U. S. (1889) : Williford v. State. 36 Tex. Cr. 414,
125, 24 Sup. Ct. 221, 48 L. ed. 373 ( 1900) 37 S. W. 761 ( 1896) .
In its assertive capacity, such a statement 60. 4 Chamberlayne, Evidence, 2689.
is merely nearsav. Melancon v. Phoenix Ins.
856 PROBATE FORCE OF REASONING. 666
cases involving injury to reputation like libel and slander 61 it may be proved
as a fact both to show libel and to prove damage ti2 and the defendant in such
cases may mitigate the damages by showing the absence of a good reputation 6c
or that it was already impaired by unfavorable rumors.** 4
The court presumes in the absence of evidence that parties have a good repu-
tation. 65 Reputation may be a probative fact as in cases of malicious prose-
cution 6G or prosecutions for running a house of ill-fame. 1 ' 7
856. [Independent Relevancy of Unsworn Statements] ; Administrative De-
tails. 68 There is great danger that unsworn statements of this character may
be misused by the jury as evidence of the facts stated, and therefore the court
may well refuse to admit them even in cases where they seem to be logically
proper. 69 The court must also see before admitting the statement that it is
objectively 7U and subjectively relevant. The reporting evidence must also
be competent, made by one with adequate knowledge 71 with no motive to mis-
represent. 72
61. The reputation is the general standing 65. O'Brien v. Frasier, 47 N. J. L. 349, 1
of the person affected in the community de- Atl. 465, 54 Am. Rep. 170 (1885).
void of limitations to any particular trait of 66. Woodwork v. Mills, 61 Wis. 44, 20 N.
character. Leonard v. Allen, 11 Cush. W. 728, 50 Am. Rep. 135 (1884).
(Mass.) 241 (1853). 67. State v. Smith, 29 Minn. 193, 12 N. W.
62. Stow v. Converse, 3 Conn. 325, 8 Am. 524 (1882)
Dec. 189 (1820) ; Adams v. La wson, 17 Gratt. "* 4 Chamberlayne, Evidence, 2694-
iVa.) 250, 260, 94 Am. Dec. 455 (1867); 2697.
Shroyer v. Miller, 3 W. Va. 158 (1869). c9. R. v. Bedingfield. 14 Cox Cr. C. 341
63. Leonard v Allen, 11 Cush. (Mass.) 241 (1879).
(1853). 70. Brannen v. U. S., 20 Ct. Cl. 219 ( 1885) .
64. Holley v Burgess, 9 Ala. 728 (1846). 71. Brannen v U. S., 20 Ct. Cl. 219 (1885).
Contra. It is not material that the rumors 72. Powell v. Henry, 96 Ala. 412, 11 So. 311
are to the same effect as the words alleged to (1892); Xourse v. Nourse. 116 Mass. 101
be slanderous. Proctor v. Houghtaling, 37 (1874); Crounse v. Fitch. 1 Abb. Dec. 45, 6
Mich. 41 U877). Abb. Pr. (N. S.) 185 (1868).
CHAPTER XXXVIII.
UNSWORN SXA1EAIENTS; HEARSAY.
Unsworn statements; hearsay, 857.
antiquity of rule, 858.
Hearsay rule stated, 859.
a controlling rule; an absolute bar, 860.
statutory exceptions, 861.
hearsay memoranda refreshing memory, 862.
implied hearsay, 863.
knowledge based on reputation, 864.
y r ,
testimony based on hearsay, 865.
Seasons for hearsay rule; inherent weakness, 866.
distrust of the jury; hearsay in other judicial systems, 867.
Scope of hearsay rule, 868.
Relevancy of hearsay, 869.
objective relevancy, 870.
subjective relevancy, 871.
Form of hearsay, 872.
composite hearsay, 873.
reputation, 874.
rumor, 875.
tradition, 876.
printed, 877.
written, 878.
official statements; admissions, 879.
857. Unsworn Statements; Hearsay. 1 Having considered in the preceding
chapter the use in evidence of the unsworn statement in its independently rele-
vant capacity, we are better prepared to examine the action of judicial adminis-
tration in dealing with the Rule against Hearsay, the employment of the extra-
judicial declaration as proof of the facts asserted in it. No rule of procedure
in connection with the law of evidence is more familiar or more frequently
invoked than that which excludes, as evidence of the facts alleged, the reported
statement of a person not sworn as a witness.
Independently Relevant Statements and Hearsay Declarations Contrasted.
The true distinction between the two seems to lie in the manner in which the
subjective relevancy of the extrajudicial statement is viewed in the respective
1. 4 Chamberlayne. Evidence, 2698.
667
UNSWORN STATEMENTS. 668
(iuimections. In other words, as to the degree of trust and confidence which,
we are called upon to repose in the speaker himself, a necessary line of demarca-
tion is presented. In case of the independently relevant statement, this trust
in the speaker may be very little. The question, for example, being as to
whether A knew a given fact, it may properly be shown that a particular state-
ment was made to him. Whether the declarant knew anything as to the truth
of the matter is not material. Reading from a newspaper by one utterly igno-
rant on the subject would be entirely sufficient. When, however, an effort is
made to show that the assertion made to A is true in point of fact, a different
situation is at once presented. We are asked to believe the declarant, to feel
that an assertion is true because the speaker declares it to be so. If this
mental reliance is to come into being, we must feel confident on at least two
points. (1) The speaker knows what he is talking about. (2) He is truly
stating the fact as he understands it to be.
858. [Unsworn Statements; Hearsay]; Antiquity of Rule. 2 Until a com-
paratively recent period, the reception of extrajudicial statements in proof of
the facts asserted was a matter of course. 3 This was conspicuously true of
the early jurors who customarily used their own knowledge drawn in part from
common reputation, rumors, and extrajudicial declarations of all kinds sub-
mitted by the parties 4 or gathered by the jurors themselves. 5
Practically, in its modern form, the rule excluding hearsay dates from the
early part of the 18th century 6 although occasional rulings to the same effect
may be found somewhat earlier. 7
Corroboration. The true administrative position of hearsay, when relevant
as secondary evidence, was early recognized in English practice, that when a
case had been established by the use of less objectionable evidence, hearsay
statements could be received for purposes of corroboration or confirmation. 8
2. 4 Chamberlayne, Evidence, 2699. 6. Canning's Trial, 19 How. St. Tr. 283, 3S3
3. The judicial opinion that the formation (1754); L. C. Macclesfield's Trial, 16 How.
of the rule against hearsay extends "back to St. Tr. 767 (1725) ; Bishop Atterbury's Trial,
Magna Charta, if not beyond it," seems hardly 16 How. St. Tr. 323 (1723): Earl of Win-
justified by facts. Anderson v. State, 89 Ala. toun's Trial, 15 How. St. Tr. 805 (1716) : Cap-
12, 14. 7 So. 429 (188!)), per Stone, C. J. tain Kidd's Trial. 14 How. St. Tr. 147 (1701).
4. " It was regarded as the right of the Hearsay is excluded " on the principal reason,
parties to ' inform ' the jury, after they were that hearsay evidence ought not to be admit-
empanelled and before the trial." Thayer, ted. because of adverse party's having no op-
Prelim. Treat, on Ev., p. 92. portunity of cross-examining." Annesley v.
5. "Some of the verdicts that are given Anglesea, 17 How. St. Tr. 1139, 1161 (1743).
must be founded upon hearsay and floating 7. Busby's Trial, 8 How. St. Tr. 525
tradition. Indeed it is the duty of the jurors, (1681 ) ; Anderson's Trial, 7 How. St. Tr. 811
so soon as they have been summoned, to make (1680) -. Samson v. Yardly & Tottill. 2 Keb.
inquiries about the facts of which they will 223 (1668); Ireland's Trial, 7 How. St. Tr.
have to speak when they come before the 79 (1678).
court. They must collect testimony, they 8. Fenwick's Trial, 13 How. St. Tr 537
must weigh it and state the net result in a (1696) -. fold's Trial. 12 How. St. Tr. 875
verdict." 2 Pollock & M., Hist, of Eng. Law, (1692) ; Lord Russell's Trial. 9 How. St. Tr.
622. 577 (1683). See, also, Braddon's Observa-
669
HEARSAY RULE.
859
Depositions. The use, in England, of extrajudicial sworn statements, decla-
rations under oath as to which the person against whom they were offered had
had no opportunity of cross-examination, continued, as is seen elsewhere, prin-
cipally in the form of depositions, somewhat later than the judicial employ-
ment of hearsay statements where neither oath nor cross-examination served
as a guaranty for truth. 9
859. Hearsay Rule Stated. 10 The rule against hearsay, though thus seen
to be of but comparatively recent origin, is the characteristic anomaly of the
English law of evidence. Except when covered by some recognized exception,
no extrajudicial statement can be received as proof of the facts asserted in it. 11
Official Duty. In the absence of special circumstances, 12 an unsworn state-
ment does not become admissible merely because made in the course of official
duty. 13
Opinion. That the unsworn statement takes the form of an opinion does
not insure its admissibility. 14
Understanding. A person's understanding in regard to a certain matter 15
as. for instance, who owns certain land 16 or the cause of another's illness 17
will not be received.
Telephone Communications. Evidence as to what a person holding a con-
versation over the telephone told the witness was said by the person at the
Cas. 1121 (1911); Pennsylvania Iron Works
v. Mackenzie, 190 Mass 61, 76 X. E. 228
(1906) ; Roche v. Nason, 93 X. Y. Suppl. 565,
105 App. Div. 256 (1905). affirmed 185 X. Y.
128, 77 X. E. 1007 (1906).
12. Official reports made to an administra-
tive hoard in pursuance of a legal duty may
be received in evidence upon being properly
authenticated to the tribunal. Chicago. R.
I. & G. Ry. Co. v. Risley Bros. & Co., 55 Tex.
Civ. App. 66, 119 S. W 897 (1909).
13. German American Ins. Co. v. Xew York
Gas Co., 185 X. Y. 581, 78 X. E. 1103 (1906)
affirming 93 X. Y. Suppl. 46, 103 X. Y. App.
Div. 310 (1905) (unverified certificates).
14. Pratt v. Hamilton, 161 Mich. 258. 126
X. \V. 196, 17 Detroit Leg. X. 288 (1910).
15. Combs v Combs. 130 Ky. 827, 114 S.
W. 334 (1908) : Roe v. Versailles Bank, 167
Mo. 406, 67 S. W. 303 (1902): Spande v.
Western Life Indemnity Co. (Or. 1911), 117
Pac. 973.
16. Waldroof v. Ruddell. 96 Ark. 171. 131
R. W. 670 (1910): Rookcastle Min. L. & 0.
Co. v. Isaacs, 141 Ky. 80, 132 S. W. 165
(1910).
17. Mo K. & T. Ry. Co. v. Williams (Tex.
Civ. App. (1911), 133 S. W. 499
tions on the Early of Essex's Murder, 9 How.
St. Tr. 1229 (1684). "The use you make
of this is no more, but only to corroborate
what he hath said, that he told it him while
it was fresh, and that it is no new matter
of his invention now." Knox's Trial. 7- How.
St. Tr. 763 (1679), per Scroggs, L. C. J.
9. Fenwick's Trial, 13 How. St. Tr. 537
(1696).
10. 4 Chamberlayne, Evidence, 2700.
Hearsay evidence is incompetent to estab-
lish any specific fact which is susceptible of
being proved by witnesses who speak from
their own knowledge. Hirshberg. Hollander
& Co. v Robinson & Son, 75 X. J. L. 256, 66
Atl. 925 (1907).
Negative facts may be as objectionable to
the rule excluding hearsay as positive ones.
Pelly v. Denison & S. Ry. Co. (Tex. Civ. App.
1904) , 78 S. W. 542. Thus a partner will not
be allowed to testify that neither his partner
nor the firm had ever been notified of a cer-
tain fact. Dunn & Lallande Bros. v. Gunn,
149 Ala. 583. 42 So. 6S6 (1906).
11. Home Building & Loan Ass'n v. Mc-
Kay. 217 111. 551. 75 X. E. 569, 108 Am. St.
Rep. 263 (1905), reversing judgment 118 111.
App. 586. Hyslop v. Boston & M. R. R.. 208
Mass. 362, 94 X. E. 310, 21 Am. & Eng. Ann.
860 UNSWORN STATEMENTS. 670
other end of the line is hearsay 18 and the statement is not rendered competent
by a declaration by such other person that he has received the information
which was telephoned him at the time such conversation took place. 19
860. [Hearsay Rule Stated] ; A Controlling Rule, An Absolute Bar. 20 The
anomalous feature of the rule against hearsay is that, unless the conditions of
a recognized exception are presented, the bar of the rule is absolute. No
forensic necessity on the part of a litigant suffices to bring into operatidn the
administrative power of a presiding judge. The fundamental administrative
duty of the court to protect a litigant in the substantive right to prove his case
by permitting him to use secondary evidence where the primary is practically
unattainable is forced to yield at this point. The case proposed for proof may
be absolutely dependent upon the establishment of a fact which can only be
shown by an extrajudicial assertion. The declarant may be unavailable, by
reason of his having left the jurisdiction 21 or even the country itself. 22 He
may be too sick to attend the trial 23 or, if present, he may not be permitted
to testify 24 or the proponent may be without the power of compelling him to
do so. 25 He may even be affirmatively shown to be dead. 26
Even the suggestion that remote or collateral facts, e.g.. those deliberative
in their nature, might properly be treated as beyond the operation of the rule, 27
has failed to commend itself to the favorable action of the courts. 28 There is,
however, a distinction taken between its operation in civil and criminal cases.
In the former should the hearsay statement be admitted without objection it
becomes evidence in the case, 20 subject, of course, to any infirmative sugges-
18. Millner v. Silverman, 100 Md. 341. 71 23. Gaither v. Martin, 3 Md. 146 (1852).
Atl. 96-2, 24 L. R. A. (X. S.) 895 (1000) ; Snuil're cmem wely amec of timem ef alww
Texas & P. Ry Co. v. Felker, 44 Tex Civ. Lack of time in which to take a deposition
App. 420, 90 S. \V. 430 (1007): Jacobs v. does not confer admissibility Though the
Cohn, 91 N'. Y. Suppl. 330, 46 Misc. Rep. 115 sickness of a witness has come to the atten-
(1904) . tion of the proponent only the day before the
19. Texas & P. Ry Co. v. Felker, 44 Tex. trial, the unsworn statement will not he re-
Civ App 420, 00 S. W. 430 (1007). ( ceived. Gaither v. Martin, 3 Md. 146 (1852).
Telephone conversation. On a question 24. Rlann v. Beal. 5 Ala. 357 (1843)-
whether an insurance company had notice of Churchill v. Smith, 16 Vt. 560 ( 1844)
a transfer of a policy a witness may testify 25. State v. Yanz, 74 Conn. 177 50 Atl 37
that he heard the insured go to the telephone 02 Am. St. Rep. 205. 54 L. R. A , 7,90 ( 1001 )
and call for the company and talk over the Rrnddon v. Speke. TIow. St. Tr. 1127 i 1684)
telephone and return saying that the com- 26. Georgia. Do/ier v McWhorter 117
pany agreed to the transfer. It seems that Ga. 786. 45 S. E. 61 i!003).
when the fact of a real conversation is proved 27. Justus' Succession. 47 La. Ann. 302 16
there is no objection to such testimony. So. 841 (1805).
Northern Assurance Co. v. Morrison (Tex. 28. Surprise. The existence of surprise
Civ. App.), 162 S W 411 and the threatened prejudice of the party
20. 4 Chamberlayne. Evidence. 2702, caused thereby does not justify ignoring the
rule as to hearsay evidence, or brinsr the same
21. Johnson v. State. 50 Ala. 37 (1877). within any exception to the rule. \Yatkins v
22. Pearson v. Darrington. 32 Ala. 227 WatkSns, 30 Mont 367, 102 Pac. 860 (1009).
(1858) ; Brown v Steele, 14 Ala. 63 (1848). 29. State Bank v. Wroddy, 10 Ark. 638
671 HEAKSAY RULE. 861, 862
tions due to its inherent weakness. In criminal actions, on the contrary, the
hearsay statement is to be rejected, unless the defendant actively assents to its
reception. 30
It may fairly be said that, speaking generally, the exception excluding hear-
say is the only procedural rule of evidence which excludes testimony for the
admission of which a sound administrative reason exists. As a matter of
principle, not only does the hearsay rule mar any scientific symmetry to which
the law of evidence might otherwise lay claim but it inflicts serious injury upon
the successful administration of justice. 31
The rule seems as applicable to preliminary as to final issues. 32 Where a
jury is present, the use of hearsay is none the less objectionable because elicited
by questions asked by the judge. 33 .
Even confessions by third persons to having committed the crime with
which the defendant is charged cannot be proved by hearsay. 34
861. [Hearsay Rule Stated] ; Statutory Exceptions. 35 It is not surprising
to find that the hardship and injustice of excluding a relevant unsworn state-
ment which is essential to the contention of its proponent should have attracted
the attention of the law-making body. A specific instance where this intoler-
able situation was found to be of frequent occurrence has been in connection
with claims by or against the estates of deceased persons. The administrative
expedient has been adopted of admitting the statements of the decedent as
evidence on actions for or against his estate. 3 '' or of forbidding the reception
of self-serving testimony from the surviving party to the transaction. Under
appropriate circumstances, the extra judicial statements of the deceased will be
received in evidence/" 7
862. [Hearsay Rule Stated] ; Hearsay Memoranda Refreshing Memory. 38
Memoranda to refresh memory of a witness cannot, in the absence of special
(1858). See Xunn v. Jordan, 31 Wash. 506, 33. Bornheimer v. Baldwin, 42 Cal. 27
72 Pac. 124 (1903). See, however, Laughlin (1871).
v. Inman, 138 111. App. 40 ( 1907 ) . 34. People v. Schooley, 149 X. Y. 99, 43
30. Phillips v State, 29 Ga. 105 (1859). X. E. 536 (1896).
31. ' If 1 was asked what I think it would 35. 4 Chamberlayne, Evidence. 2704.
be desirable should be evidence. I have not the 36. Foote v. Brown, 81 Conn. 218, 70 Atl.
least hesitation in saying that 1 think it 699 (1908) (title to land): Mooney v.
would be a highly desirable improvement in Mooney. 80 Conn. 446, 68 Atl. 985 (1908)
the law if the rule was that all statements In order that the declaration of the decedent
made by persons who are dead respecting should be competent tinder such a statute, it
matters of which they had a personal knowl- is essential that the action should have been
edge, and made ante litem motam. should be brought directly by or against his legal rep-
admissible. There is no doubt that by re- resent atives. Mooney v. Mooney, 80 Conn.
jecting such evidence we do reject a most 446. 68 Atl. 985 (1908).
valuable source of evidence." Sugden v. St. 37. Mulcahy v. Mulcahy, 84 Conn. 659, 81
Leonards, 1 P. D. 154, 250. 45 L J. P. 49, Atl. 242 (lOlli : Pixley v. Eddy. 56 Conn.
34 L. T. Rep. i X. S.) 372. 24 \Ykly. Rep. 33(5. 15 Atl. 758 (1888); Hamilton v. Lam-
860 (1876), per Mellish. L. J. phear, 54 Conn. 237. 7 Atl 19 (1886)
32. Early v. Oliver, 63 Ga. 11 (1879). 38. 4 Chamberlayne, Evidence, 2705.
863-865 UNSWORX STATEMENTS. 672
circumstances, be based upon the hearsay statements of others. In general, a
witness must know of his own knowledge that the statements of a memorandum
are true. 39
863. [Hearsay Rule Stated] ; Implied Hearsay. 40 Where the sole relevancy
of an act consists in the extrajudicial assertion which it implies, its reception
in evidence is felt to be contrary to the rule excluding hearsay. 41 Under the
circumstances, judicial administration is justified in rejecting the covering or
containing fact. The question of much greater administrative nicety is pre-
sented where this latter fact itself possesses a logical relevancy or bearing upon
the issue. Upon sound arid recognized administrative principles, the risk of
evading the hearsay rule will be encountered should the fact itself seem fairly
necessary to proof of the proponent's case, the paramount right in this con-
nection. Thus it may be shown that the officials of a given town decline to
allow a certain individual to vote, although the fact carries an implication of a
declaration that the person is not, in their opinion, a qualified voter. 42
864. [Hearsay Rule Stated] ; Knowledge Based on Reputation. 4 3 ; ^.Testi-
mony based on no personal knowledge or observation on the part of the witness
but resting upon a reputation prevalent through the community, is objection-
able as hearsay. 44 As established by scandal and gossip, local reputation may
constitute a peculiarly objectionable form of hearsay. It is not under oath
nor are the tests of cross-examination applied to it.
865. [Hearsay Rule Stated] ; Testimony Based on Hearsay. 45 A hearsay
statement cannot be employed in whole 40 as the basis of the testimony of the
witness to the effect that a certain fact exists. 47 Nor can it be used in part for
such purpose. 48 The witness is required to speak as to his own knowledge. A
present conviction of the truth of a fact which has been reached by weighing
the extrajudicial statements of others does not satisfy the requirements of this
rule. 43
39. L'Herbette v. Pittsfleld Nat. Bank, 162 46. Grimme v. General Council of Fraternal
Mass. 137, 38 X. E. 368, 44 Am. St. Rep. 354 'Aid Ass'n, 167 Mich. 240, 132 X. W. 497
(1894). Use of memorandum to refresh rec- (1911).
ollection, see note. Bender ed., 183 \. Y 195. 47. Cornish v. Chicago, etc., R. Co., 49
Ri<rht to use memorandum to refresh recol- Iowa 378 (1878). And see Ramsey v. Smith,
lection, see note, Bender ed., 90 X. Y. 309. 138 Ala. 333, 3o So. 325 (1903).
Use of memorandum as, see note, Bender ed., 48. Patrick v. Howard, 47 Mich. 40. 10 X.
22 X. Y. 462. W. 71 (1881) ; Levy v. J. L. Mott Iron Works,
40. 4 Chamberlayne, Evidence, 2706. 1-27 X. Y. Suppl. 506, 143 App. Div. 7 (1911 )
41. In re Louck's Estate, 160 Cal 551, 117 (hospital records not shown to he true) ;
Pac. 673 (1911) (belief of by-standers) . Robeson v. Sohuylkill Xav. Co., 3 Grant Cas.
42. Meserve v. Folsom. 62 Vt. 504, 20 Atl. (Pa.) 186 (1855); Monk v. State, 27 Tex.
926 (1889). App. 450, 11 S. W. 460 (189). But com-
43. 4 Chamberlayne, Evidence, 2707. pare Hornum v. McXeil, 80 X. Y. Suppl. 728,
44. Moore v. Dozier, 128 Ga. 90. 57 S. E. 80 X. Y. App. Div. 637 (1903).
110 (1907). 49. Lamar v. Pearre, 90 Ga. 377, 17 S. E.
45. 4 Chamberlayne, Evidence. 2708- 92 (1892).
2710.
673 HEAESAY RULE. 865
Joint Knowledge. Should the sanction of an oath be given to the state-
ment of an informant the objection that the second witness is testifying from
hearsay may be removed. Thus, where a witness testifies that he has informed
a given person of a fact which the speaker has himself forgotten, he has been
regarded as rendering the evidence of a person so informed competent as to
what the fact is. 50
Where testimony is taken through an interpreter the objection from hearsay
is obviated by taking the oaths of the witness and the interpreter. 51
An entirely different question is presented where a person who subsequently
testifies as a witness has examined a set of documents, public or private, and is
asked to state the effect of these papers. This the witness is at perfect liberty
to do, 52 the administrative advantage of thus expediting the trial being obvious.
No infraction of the hearsay rule is involved. Such knowledge may readily
be acquired by the witness in the course of public 53 or official duty. 54 The
testimony is not objectionable as being based upon hearsay. The witness is
not giving the contents of the documents as such. He is merely stating what
he has found out and knows of his own knowledge, what the writings are about,
what they are seeking to effect, what position the persons concerned assume
in them and the like. An administrative question of some nicety arises in
view of the danger that a witness may, in reality, be basing his testimony on
hearsay. Can a rule of procedure or practice be formulated as to this matter
of preliminary examination \ The question as to the advisability of holding
a preliminary examination into the personal knowledge of the witness would
appear to be a purely practical one most wisely left to be determined by the
circumstances of each individual case. It may sufficiently appear, for exam-
50. Shear v. Van Dyke, 10 Hun (X. Y.) 50 Minn. 91, 52 N. W. 274; People v. Ran-
528 (1877) (number of loads of hay) : Hart dazzio, 194 X. Y. 147, 87 X. E. 112.
v. Atlantic Coast Line R. R. (X 1 . C. 1907), 52. California. San Pedro Lumber Co. v.
56 S. E. 559. Reynolds, 121 Cal. 74, 53 Pac. 410 (1898);
51. Com. v. Storti, 177 Mass. 339, 58 X. E. Fidelity & Deposit Co. of Maryland v. Cham-
1021 (1901). pion Ice Mfg.. etc., Co., 133 Ky. 74, 117 S.
Interpreter. One taking part in a con- \V. 393 (1909).
versation through an interpreter may not 53. An administrator who has learned in
generally testify to the interpretation of what the course of his discharge of the trust that
was said by the other speaker. But such evi- a given claim was made by or against the
dence may be put in by one party to the suit estate may properly testify to that effect,
when the person interpreted is an opposing Stewart v. Chadwick, 8 Iowa 463 (1859).
party, as the interpreter is regarded as an 54. An expert on cattle diseases who has
agent of the party who has availed himself ascertained from the records and correspond-
of this method of communication and his ence of the national department of agricul-
statements are regarded as admissions. This ture, with which he is connected, the local-
is to be sure a fictitious agency but as a prac- ities in the State of Texas where '' cattle
tical matter a necessary step and should fever " is prevalent, may state, as a result of
really be recognized as an exception to the his investigations which districts of the State
hearsay rule. Grocz v. Delaware & Hudson are so affected, although he has never visited
Cl., 161 X. Y. Supp. 117; Miller v. Lathrop, them. Grayson v. Lynch. 163 U. S. 468, 16
S. Ct. 1064, 41 L. ed. 230 (189.1).
866 UNSWORN STATEMENTS. 674
|
pie, from the statement itself that it is made by one who has no personal knowl-
edge on the subject. 55
866. Reasons for Hearsay Rule ; Inherent Weakness. 5 ' 3 In treating hear-
say statements, unsworn declarations employed in proof of the facts asserted,
as secondary evidence, the judicial administration of the earlier English law of
evidence acted in a wise and scientific spirit. Even when relevant at all,
which seems by no means to occur so frequently as the state of the authorities
would apparently indicate, the evidence of an extrajudicial statement, when
employed as hearsay, to prove the fact which it asserts, is of a distinctly infe-
rior grade. So much greater by comparison is the probative force of the
testimony of the original percipient witness, the maker of the unsworn state-
ment, given in court under the sanction of an oath and subject to the test of
cross-examination as to constitute it in this connection a primary grade of
proof.
In addition to the practical danger that the statement may have been mis-
understood 57 or inisreported 8 there is also the further objection that it is
given without oath 59 and without the privilege of cross-examination, 60 the
latter being by far the stronger objection, as the statement comes to the court
untested. 01 This objection applies equally to affidavits 62 or depositions taken
in proceedings between third parties. 03 Therefore where the statement was
subjected to cross-examination it may be received G4 and where it was given in a
tribunal which did not require cross-examination it will be excluded; 05 as in
case of coroner's inquests cc or justices courts 67 unless the person affected had
an opportunity of examining the declarant.
55. Lamar v. Pearre, 90 Ga. 377. 17 S. E. 61. Marshall v. Chicago & G. E. R. Co., 48
82 (1892). 111. 475, 476 (1868).
56. 4 C hamberlayne, Evidence, 2711- 62. Holliday v. Roxbury Distilling Co., 115
2710. X. Y. Suppl. 383, 130 App. Div. 654 (1909).
57. Louisville & X. R. Co. v. Murphy (Ky. 63. YVaterson v. Leat, 10 Fla. 326 (1863).
1912), 150 S. \V. 7!) (mistake and deception). 64. Minneapolis Mill Co. v R. Co., 51 Minn.
Hearsay is excluded because the probabilities 304, 315, 53 X. W. 639 (1892); Bradley v.
of falsehood and misrepresentation, either Mirick, 91 X. Y. 293, 296 (1883); Wright v.
willful or unintentional, being introduced Tatbam, 1 A. & E. 3 (1834K
into a statement, are greatly multiplied every 65. Attorney-General v. Davison, McCl. &
time it is repeated. The original statement, Y. 160, 167 (1825); Jackson v. Bailey, 2
even if correctly reported, is not under the Johns. (X. Y) 17 (1806); R. v. Paine, 5
safe-guards of the personal responsibility of Mod. 163 (1696) : Julian v. Kansas City Star
the author as to its truth or the tests of a Co., 209 Mo. 35, 107 S. W. 496 (1907).
cross-examination as to its accuracy. Shep- The offer made to a defendant that he may
pard v. Austin, 159 Ala. 361, 48 So. 696 cross-examine, if he sees fit, is sufficient to
(1909). safeguard his rights. State v. Hill, 2 Hill
58. Mima Queen v. Hepburn, 7 Cranch (U. S. C. 607. 27 Am Dec. 406 (1835): R. v.
S.) 290, 295, 3 L. ed 348 (1813). Smith. Holt X. P. 614 (1817) : Trials at Xisi
59. Diel v. Kellogg, 163 Mich. 162. 128 X. Prius. 240 (1763).
W 420, 17 Detroit Leg. X. 891 (1910). 66. Pittsburgh C. & St. L. R. Co. v. Mc-
60. Com v. Trefethen. 157 Mass. 180, 185, Grath. 115 111. 172. 3 X. E. 439 (1885).
31 X. E 961, 24 L. R. A. 235 (1892). In England depositions taken at coroners'
675 SCOPE OF HEABSAY RCI.E. 867-869
867. [Reasons for Hearsay Rule]; Distrust of the Jury; Hearsay in Other
Judicial Systems. 68 Hearsay is employed in other systems of law, as the
civil 69 and ecclesiastical law, but its strict exclusion by the common law is
caused by the general distrust of the jury and the effect of such statements on
the minds of persons unaccustomed to consider the limitations and restrictions
which legal views upon the subject would impose. 70
868. Scope of Hearsay Rule. 71 Applying equally to civil and criminal
cases, embracing oral, printed, written or composite statements, indifferently
affecting declarations which are implied as well as those more fully expressed,
the rule against hearsay statements has evidently a wide range of influence,
even when restricted to its normal scope. 72 As the term is commonly em-
ployed, the application of the rule is still wider being made to cover two large
classes of extrajudicial statements which must carefully be excluded before
the true juridical value of the rule can be satisfactorily estimated. The first
of these classes, the instances in which the unsworn statement is circumstan-
tially relevant, constituent or probative by reason of its bare existence, has
already been considered in the preceding chapter. It remains to place on one
side, as not properly within the scope of the hearsay rule which excludes extra-
judicial statements when used as proof of the facts asserted a second and very
large class of unsworn statements, those which are logically irrelevant.
Courts frequently give as a reason for excluding evidence logically irrelevant
that it is hearsay and this practice has caused some confusion.
869. Relevancy of Hearsay. 73 The absence of cross-examination in case
inquests are admissible. R. v. Eriswell, 3 T. administrative tribunals should not be con-
R. 707 (1700). fined to the strict rules of evidence. They
67. R. v. Ferry Frystone, 2 East 53 (1801). are composed of experts and not subject to
68. 4 Chamberlayne, Evidence, 2720. the suspicion to which juries are subject and
69. " In Scotland, and most of the Conti- are better able to weigh the evidence of all
nental States, the judges determine upon the kinds. So it has been held that a board under
facts in dispute as well as upon the law: and the Workmen's Compensation Act may con-
they think there is no danger in their listen- sider hearsay evidence. Carroll v. Knicker-
ing to evidence of hearsay, because when they bocker Tee Co., 155 X. Y. Supp. 1. See
come to consider of their judgment, on the contra, Englebretson v. Industrial Accident
merits of the case, they can trust themselves Commission, 170 Cal. 79.3. 151 Pac. 421: Em-
entirely to disregard the hearsay evidence, or plovers' Assurance Corporation v. Industrial
to give it any little weight which it may Accident Commission, 170 Cal. 800, 151 Pac.
seem to deserve. But in England, where the 423.
jury are the sole judjes of the fact, hearsay State of Mind of Declarant. The House
evidence is properly excluded, because no man of Lords has recently gone far in abrogating
can tell what effect it misrht have upon their the hearsay rule by admitting contempora-
minds.*' Berkeley's Case. 4 Campb. 401. 415 neous declarations to show the intention or
(1^11). per Mansfield. C. .T. state of mind of the declarant. Lloyd v.
70. Wright v. Tatham. 7 A. & E. 313, 375. Powell Duffryn*Steam Coal Co. (1914). A. C.
2 X. & P. 305. 34 E. C. L. 17S (837). 733.
71. 4 Chamberlayne. Evidence. 2721- 73. 4 Chamberlayne, Evidence, 2725,
2724. 2726.
72. Administrative Boards. It seems that
870, 871 UNSWORN STATEMENTS. 676
of an extrajudicial statement employed as hearsay, or, more properly, the
difficulty of mentally affixing any determinate, evidentiary value to a declara-
tion not so tested, has led judicial administration, as is most clearly seen in
connection with the u exceptions " to the hearsay rule, to require that a clear
and unmistakable relevancy, objective and subjective, should be established if
such a declaration is to be received in evidence.
870. [Relevancy of Hearsay] ; Objective Relevancy. 74 Applying more spe-
cifically to hearsay declarations, the familiar general propositions that seem to
be essential to the probative force of all statements which are to be judicially
used, the rule may fairly be deduced that no extrajudicial statement when used
as proof of the facts asserted will be admitted unless it would, if believed,
logically establish, mediately or immediately, the existence of some fact in the
res gestae, properly so called. The declaration which, if true, lacks this ob-
jective correlation with some ultimate factum probandum is to be rejected.
This is properly done, not by virtue of any rule peculiar to hearsay but under
the general administrative duty of the court to keep from the attention of the
jury matters upon which they cannot rationally act.
Common examples of this rule are the rejection of disconnected statements
where a link in the chain of evidence is missing, 75 or the rejection of the state-
ments of the agent 7C or privy 77 until agency or privity is shown.
871. [Relevancy of Hearsay] ; Subjective Relevancy. 78 If the objective
relevancy of a hearsay statement is tacitly assumed as a matter of course, the
question of subjective relevancy stands in quite a different position. The in-
quiry no longer is as to whether the declaration, if believed, would establish
the res gestae fact, properly so called. The question is, Shall the statement be
believed, credited as proving the fact, the existence of which it asserts.
The statement should appear to be made by one with adequate knowledge, 79
with no motive to misrepresent 80 and therefore self-serving statements are
excluded whether oral 81 or in writing 82 and although the declarant is dead. 83
74. 4 Chamberlayne, Evidence, 2727- 227, 1.5 Am. Dec. 627 (1825): Turner Falls
2730. Lumber Co. v. Burns, 71 Vt. 354, 45 Atl. 896
75. Hard v. Ashley, 63 Hun 634, 18 N. Y. (1899).
Suppl. 413, 44 X. Y. St. Rep. 792, affirmed 80. Lavender v. Hall, 60 Ala. 214 (1877).
136 N. Y. 645, 32 N. E. 1015 (1892). 81. Africa v. Trexler, 232 Pa. 493, 81 Atl.
76. Enneking v. Woebkenberg, 88 Minn. 707 (1911).
259, 92 N. W. 932 (1903) 82. Troy v. Rudnick, 198 Mass. 563, 85
77. Evans v. McKee, 152 Pa. St. 89. 25 Atl. N. E. 177 (1908).
148 (1892). 83. Gunter v. Gunter, 174 Fed. 933, 98 C.
78. 4 Chamberlayne, Evidence, 2731- C. A. 545 (1909).
2736. Declarations of a deceased partner as to
79. Circumstantial evidence. Proof of ac- his being the sole owner of the business are
tual knowledge may be made by circum- inadmissible. Let'son v. Hall (Ala. App.
stances. McDonald v. MoCaskill, 53 X C 158 1912). 58 So. 740.
(1860); Coats v Speer, 3 McCord (S. C.)
677 FORM OF HEARSAY. 872-874
For the same reason statements by agents, 84 or privies S5 in favor of their
principals or representatives are excluded.
872. Form of Hearsay. 80 In respect to form, hearsay statements may
properly be regarded in one of two ways. The rule of exclusion applies in-
differently to them all. As distinguished from each other by the nature of
their source, unsworn statements in their assertive capacity may be treated as
composite or individual.
Composite hearsay may be denned as a compound or blended extrajudicial
declaration of an indeterminate number of people so mingled that the separate
voices can no longer be distinguished.
Individual hearsay, on the contrary, may be regarded as an extrajudicial
statement shown to have been made by a particular person or set of persons.
So far as classified by means of the vehicle through which the utterance is
presented to the tribunal they may be conveniently considered as being oral,
printed or written. 87
873. [Form of Hearsay] ; Composite Hearsay. 88 Composite hearsay, as
above defined, usually presents itself to the tribunal, with increasing vagueness
as Reputation, Rumor or Tradition.
874. [Form of Hearsay] ; Reputation. 89 It is necessary to consider under
what circumstances the existence of a given reputation is probatively relevant
to the truth of the facts which it asserts ? Apparently, this is exhibited when-
ever the nature of the subject matter and the other circumstances attending
the formation and promulgation of the reputation are such as to make it
probable that by thorough discussion and the prevalence of an interest vigor-
ously to combat any mistake on the subject, the truth has presumably been
reached. The inference apparently is that the reputation never would have
continued in its ultimate form had it failed to state the actual reality. 90
Like hearsay in many other forms, reputation in its assertive capacity is
considered, from an administrative point of view, as secondary evidence. The
direct testimony of witnesses, cognizant of their own knowledge as to the exist-
ence of the facts asserted being primary evidence, the existence of a reputation
to the same effect may be shown when evidence of the higher grade is unattain-
84. Franklin County v. Bunting, 111 Ind. ing the court may consider telegrams from
143, 12 X. E. 151 (1887). the governor of the state demanding the ex-
85. Healy v. Malcolm, 77 App. Div. 60. 78 tradition of the applicant. Massee. ex parte,
X. Y. Suppl. 1043 (1902) (assignor of con- 95 S. C. 315, 70 S. E. 97. 46 L. R. A (X. S.)
tract). 781 (10131 Telegrams as evidence, see note,
86. 4 Chamherlayne, Evidence, 2737 Bender ed . 100 X Y. 455.
87. Affidavits. It is error to allow affi- 88. 4 C hamlierlayne. Evidence, 2738.
davits to he read to the jury in a dishar- 89. 4 ( hamherlayne. Evidence. 2739-
ment case. Lenihan v. Commonwealth. 165 2751.
Ky. 03. 176 8. W. 948, L. R A. 1917 B 1132 90. Jaquith v. Scott, 63 X'. H. 5, 56 Am.
(1915). Rep. 476 (1883).
Telegrams. In a habeas corpus proceed-
874
UNSWORN STATEMENTS.
678
able 91 and proof of the fact is reasonably essential to the case of the proponent.
Thus reputation may be used to corroborate other evidence where primary
evidence fails 92 or to prove any matter of public or general interest 93 as the
existence of public rights. 94
The actual declarants in case of a reputation regarding matters of public
and general interest being unidentified, administration cannot well demand
that the proponent show that they possessed adequate knowledge and were free
from a controlling motive to misrepresent. No showing need even be made
to the effect that the speakers were not personally interested in establishing
the fact that they were assisting to create.
The probative force of reputation is greatly increased should it appear to
have arisen ante litem motam. Q5 Common customs 96 or municipal incorpora-
tion 9T or boundaries 98 may be proved in this way, and other facts affecting
the community as the habits " and morals * of the citizens, or the existence
of a place as a liquor nuisance. 2 However, private rights 3 or facts of per-
91. Stevens v. San Francisco, etc., R. Co.,
100 Cal. 554, 35 Pac. 165 (1893).
92. Rizer v. James, 26 Kan. 221 (1881).
Where direct proof of a fact is accessible, it
cannot ordinarily be proved by showing the
reputation in a community to that effect.
Thus, that a given person resides at a par-
ticular place cannot be established by repu-
tation. Abel v State, 90 Ala. 631, 8 So. 760
(1890).
93. Morse v Whitcomb, 54 Oregon 412, 102
Pac. 788, rehearing denied, 103 Pac. 775, 135
Am. St. Hep. 832 (1909).
94. llampson v. Taylor, 15 R. I. 83, 8 All.
331, 23 Atl. 732 (1S85).
95. Reid v. Reid, 17 N. J Eq. 101 (1864).
96. Carr v. Mostyn, 5 Exch. 69, 19 L. J.
Exch 249 (1850).
A custom may be put in evidence if it is
general and uniform and not contrary to law
or to reason. Rains v. Weiler, 101 Kan. 294,
166 Pac 235. L R. A. 1917 F 571 (1917).
97. Bow v. Allenstown, 34 N. H. 351, 69
Am Dee. 489 (1857).
98. Drury v. Midland R. Co.. 127 Mass
571 (1879) (county).
99. Newdeck v. Orand Lodge A U. W ,
61 Mo App. 97 (1894).
1. It has, on the contrary, been held that
reputation is not admissible to determine
whether an insured person had become intem-
perate, or had been intoxicated within a cer-
tain period. Knapp v Brotherhood of Amer-
ican Yeomen (Iowa 1910). 126 X. W. 33f>.
To the contrary effect, see Stevens v San
Francisco, etc., R. Co., 100 Cal. 554, 35 Pac.
165 (1893).
Reputation may be in itself relevant.
For example, in an action for slander th
reputation of the plaintiff for honesty may be
put in evidence as bearing on the amount of
the damages. Deitchman v. Bowles, 166 Ky.
285, 179 S. W. 249 In a trial for homicide
for killing a man who was attempting to
break into the defendant's house to get de-
ceased's wife the defence may put in evidence
of the reputation of the. defendant as being
quarrelsome and dangerous. Bailey v. Peo-
ple, 54 Colo. 337, 130 Pac. 832, 45 L. R. A
(X. S.) 145 (1913). Where a master volun-
tarily employs a physician to treat his em-
ployees the doctor's general reputation for
drunkenness may be shown as evidence that
the master knew or should have known that
he was incompetent. Guy v. Lanark Fuel
Co., 72 W. Va. 728, 79 S. E. 941. 4S L R. A.
(X. S.) 536 (1913). Tn an action on an in-
surance policy where it becomes material to
show that the defendant was addicted to the
use of intoxicating liquors his reputation is
not admissible as being a man addicted to the
use of intoxicants as this is pure hearsay.
Smith v Prudential Tns. Co., 83 X. J L 719,
85 Atl. 190, 43 L. R. A (X. S.) 431 (1912).
2. Ostendorf v State (Okla Cr App. 1912)
128 Pac. 143 Tn a prosecution for keeping a
bawdy house the reputation of the house as
being one of ill fame may be shown by the
prosecution although its reputation is not put
in evidence by the defence. Putnam v. State,
679
FORM OF HEARSAY.
875-877
sonal interest 4 as the skill of a physician 5 or the financial, mental, 7 or physi-
cal 8 condition of individuals or their business relations 9 cannot be proved
in this way.
875. [Form of Hearsay] ; Rumor. 10 Passing from reputation to rumor, a
downward step, in proving capacity, is taken. Should the relevant fact be the
existence of the rumor itself; in other words, should the evidentiary fact be
independently relevant rather than employed as proof of the thing asserted, it
is, of course, admissible. 11 To prove, however, the true existence of the fact
which it alleges, a rumor will not be received by judicial administration. 12
876. [Form of Hearsay] ; Tradition. 13 Among composite forms of hear-
say, tradition would seem to be as far above rumor, in a probative sense, as it
is below reputation. However this may be, and such generalizations are rather
misleading than helpful, tradition is seldom received by judicial administration
as proving the truth of the fact which it asserts. 14 In case, however, of mat-
ters of public and general interest, 15 e.g., the location of an ancient public
boundary lt} for administrative reasons the evidence is received.
877. [Form of Hearsay] ; Printed. 17 A hearsay statement, an extrajudi-
9 Okla Crim. Rep. 535, 132 Pac. 916, 46 L.
R. A. (X. S.) 593 (1913). Evidence of bad
reputation alone may not be enough to prove
that a house is a bawdy house but it is admis-
sible together with other evidence. King v.
Comm., 154 Ky. 829, 159 S. W. 593, 48 L. R.
A. (N: S.) 253 (1913).
3. Cox v. Brookshire, 76 X. C. 314 (1877).
General reputation in the neighborhood can-
not be used to show that a certain piece of
land is within the boundaries of a tract
named in a deed as the " Grant Mill Place."
McAfee v. Xewberry 87 S E. 392, Ga.
4. Middleswortli v. Xixon, 2 Mich. 425, 57
Am. Dec. 136 (1852) (elected to office):
Litchfield Iron Co. v. Bennett, 7 Cow. (X. Y.)
234 (1827) i elected to office): Ferguson v.
Wright. .113 X. C. 537. 18 S. E. 691 (1893)
(residence) .
5. Clark v. Com, 111 Ky 443, 63 S. W.
740, 23 Ky. L. Rep. 1029 (1901)
6. Watterson v Fuelhart, 169 Pa. St. 612,
32 Atl. 597 (18051.
Insolvency. A fact so interesting and no-
torious as insolvency may in some cases be
proved by reputation. Downs v. Rickards. 4
Del Ch. 416 (1872) ; Griffith v. Parks, 32 Md.
1 (I860).
7. Walker v. State, 102 Ind. 502. 1 X. E.
856 (1SS.-)).
8. Mosser v. Mosser, 32 Ala. 551 (1858);
Chicago, etc., A & R. Co. v. Johnson, 116 111.
206, 4 X. E. 381 (1886)
9. Central R. & Banking Co. v. Smith, 76
Ala. 572, 52 Am. Rep 353 (1884): Trow-
bridge v. Wheeler, 1 Allen (Mass.) 162
(1861) ; McGregor v. Hudson (Tex. Civ. App.
1895), 30. S. W. 489.
10. 4 Chamberlayne, Evidence, 2752.
11. Governor v. Campbell, 17 Ala. 566
(1850).
12. Johnson v. Johnson, 114 111. 611, 3 N.
E. 232, 55 Am. Rep. 883 (1885).
13. 4 Chamberlayne, Evidence, 2753-
2755.
14. Coughlin v. Poulson, 2 Mac Arthur (D.
C.) 308 (1875) (mental state); McKinnon
v. Bliss, 21 X. Y 206 (1860); Houston, etc.,
R. Co v Burke, 55 Tex. 323, 40 Am. Rep.
808 (1881) ; Cline v. Catron, 22 Gratt. (Va.)
378 (1872).
Ownership of land. Family tradition as
to the ownership of land is inadmissible to
establish title to it. Cline v. Catron, 22
Gratt. (Va.) 378 (1872).
15. Wooster v. Butler. 13 Conn 309
(1831): Bow v. Allenstown. 34 X. H 351,
69 Am. Dec. 489 (1857) ; MoKinnon v. Bliss,
21 X. Y. 206 (I860).
16. De Loney v. State, 88 Ark 311, 115 S.
W. 13S (1008).
17. 4 Chamberlayne. Evidence, 2754,
2755.
878, 879 UNSWOBN STATEMENTS. 680
cial declaration used as proof of the facts asserted, is none the less objectionable
to the rule under consideration because it is in printed form. In its statement,
the rule excluding hearsay makes no exception in favor of books, 18 however
meritorious, or of standard treatises of recognized authority. Its exclusion is
applied equally as rigorously to such a learned treatise on a medical l9 or other
scientific 20 or technical subject as to a newspaper, 121 magazine or periodical, or
other ephemeral publication of a less learned character. 22
878. [Form of Hearsay] ; Written. 23 Considered as hearsay, an unsworn
statement which is in writing is as much within the rule under consideration as
one which is oral. 24 Xor is the formality or deliberate character of the writ-
ing administratively considered of consequence in this connection. Tempo-
rary, ephemeral writings such as letters, 25 are as fully subject to the rule
against hearsay as are also telegrams 2G or loose memoranda. 27
Hence extrajudicial self-serving statements 28 or even judicial statements
under oath 29 as in affidavits 30 or pleadings 31 or statements contained in mer-
cantile transactions 32 or official statements, 33 aside from the relevancy of regu-
larity, are excluded as hearsay.
879. [Form of Hearsay] ; Official Statements ; Admissions. 34 Under ordi-
nary administrative principles, while the declarant, his privies or representa-
tives may not be able to use the declarations of a public or private entry in his
behalf, these assertions may be used against them. Should it appear, for ex-
18. Brown v. Xewell, 116 X. Y. Suppl. 965, 27. Merritt v. Westerman. 165 Mich. 535,
132 App Div. 548 (1909), affirmed 200 X. Y. 131 X. W. 66 (1911)
501, 93 X E. 1117 (1910). 28. Hunter v. Harris, 131 111. 482, 23 X. E.
19. Fox v. Peninsular White Lead, etc., 626 (1890) (affidavit).
Works, 84 Mich. 676, 48 X. W. 203 (1891). 29. Louisville, etc., R. Co v. Wood, 113
20. Kreuziger v. Chicago, etc, R. Co, 73 liid. 544, 14 X. E 572, 16 X. E. 572, 16
Wis. 158, 40 X. W. 657 (1888) X. E 197 (1887).
21. <"hild v. Sun Mut. Ins. Co., 3 Sandf. 30. An affidavit, speaking generally, fails
(X V.) 26 (1849); Gettins v. Hennessey to remove the bar of the hearsay rule.
(Or 1912). 120 Pac 369; Morgan & Bros. v. United Surety Co. v. Summers, 110 Md. 95,
Missouri, K. & T. Ry Co. of Texas, 50 Tex. 72 Atl. 775 (1909).
Civ. App 420, 110 S W. 978 (1908). 31. Kami v Bennett, 223 Pa. 36, 72 Atl.
22. Stagg & Conrad v. St. Jean, 29 Mont. 342 (1909).
288, 74 Pac 740 i 1903) (catalogue); Xor- 32. Illinois Cent. R. Co. v. Langdon, 71
folk & W. Ry. Co. v. Bell, 104 Va. 836, 52 Miss. 146, 14 So. 452 (1893); Mcllhargy v.
S E. 700 (1906). Chambers, 117 N. Y. 532, 23 X. E. *561
23. 4 ( hamberlayne, Evidence, 2756- (1889); Crease v. Parker, 6 Fed. Cas. Xo.
2760. 3.376, 1 Cranch. C. C. 448 (1807). See also,
24. Spohr v, Chicago, 206 111. 441. 69 X. International, etc, R Co. v. Startz, 97 Tex
E. 515 (1903) (consideration stated in 167, 77 S. W. 1, reversing (Tex Civ. App.
deed). 1903) 74 S. W 1118.
25. Rice v. James. 193 Mass. 458, 79 X E. 33. Shnmway v. Leakey, 67 Cal. 458, 8 Pac.
807 (1907) 12 (1885); Lynn v. Troy, 57 Hun (X. Y.)
26. Woods v. Toledo. St L. & W. R. Co., 590, 10 X. V. Suppl. 594. 32 X Y. St. Rep.
159 111. App. 209 (1910). 497 (1890).
34. 4 Chamberlayne, Evidence, 2761.
681 FORM OF HEARSAY. [
ample, as has been said, that the party against whom a hearsay statement is
t ii'ered has authorized the making of it 35 or is otherwise connected with its
existence in some way which the substantive law recognizes 36 it may be re-
ceived against him as his admission.
.J*.j.j-~~JL. JlcLX lAJcLiJ
35. blmimvay v. Leakey. H7 Gal. 4o3, S Pac. X. Y. Suppl. 594, 32 N. Y. St. Rep. 497
12 (18S5J. (1890).
36. Lynn v. Troy, 57 Hun (N. Y.) 590, 10
CHAPTER XXXIX.
HEARSAY AS SECONDARY EVIDENCE; DECLARATIONS AGAINST INTEREST.
Hearsay as secondary evidence, 880.
Declarations against interest; rule stated, 881.
distinguished from admissions, 882.
administrative requirements; necessity, 883.
subjective relevancy, 884.
nature of interest; pecuniary, 885.
proprietary, 886.
interest other than pecuniary or proprietary, 887.
general requirements, 888.
880. Hearsay as Secondary Evidence. 1 The sound administrative princi-
ple, that hearsay, when shown to be necessary and relevant, should be received
as secondary evidence, had already, on the advent of a more rigidly procedural
treatment of the subject, obtained considerable recognition by the courts of
the United States. The influence of such a judicial feeling is still manifest. 2
In this view, while the testimony, under oath, of the declarant is admittedly a
primary grade of proof, 3 the reception of a report of his unsworn statement is
permitted as a secondary grade of evidence. In these jurisdictions should the
court become satisfied that the primary evidence is unattainable 4 because the
declarant is dead 5 outside the jurisdiction, 6 or that the evidence cannot, for
some other reason, be procured 7 the report of his extrajudicial statement may
be received. 8
1. 4 Chamberlayne, Evidence, 2762- Michigan. Stockton v. Williams, Walk.
2768. Ch. 120 (1843).
2. "It is objected that, however impressive Texas. Primm v. Stewart, 7 Tex. 178
the declaration of a man of character may be, (1851).
even without his oath, yet the law admits Canada. Lyons v. Laskey, 5 Montreal Q.
the word of no one in evidence without oath. B. 5 (1889).
The general rule certainly is so; but subject 6. Udall's Case, 1 How. St. Tr. 1271
to relaxation, in cases of necessity, or extreme ( 1590) .
inconvenience." Garwood v. Dennis, 4 Binn. 7. Furman v. Coe, 1 Caines Cas. (N. Y.)
(Pa.) 314, 328 (1811), per Tilghman, C. J. 96 (1804) (could not have testified before) ;
3. Printup v. Michell, 17 Ga. 558, 63 Am. Griffith v. Sauls, 77 Tex. 630, 14 S. W. 230
Dec. 258 (1855). (1890) (physically incapacitated).
4. Gould v. Smith, 35 Me. 513 (1853); 8. "Hearsay is uniformly holden incompe-
Peterson v. Ankrom, 25 W. Va. 56 (1884). tent to establish any specific fact which is in
5. Maryland. Smith v. Wood, 31 Md. 293 its nature susceptible of being proved by wit-
(1860). nesses who can speak from their own knowl-
Massachusetts Townsend v. Pepperell, 99 edge." Page v. Parker, 40 N. H. 47, 60
Mass. 40 (1868) ; Barrett v. Wright, 13 Pick. (1860), per Fowler, J.
45 (1832).
682
683 RULE STATED. 881-883
881. Declarations against Interest; Rule Stated. 9 Among recognized excep-
tions to the rule excluding hearsay is that which, under the conditions of neces-
sity and relevancy receives the declarations made against interest. Treating
the statement as secondary evidence of the facts asserted, the rule is announced
that where the primary evidence, the testimony of the declarant, is unavailable
owing to the latter Y death or other sufficient reason, proof will be received of
his extra judicial statement if against his pecuniary or proprietary interest
when made. 10 The extrajudicial statement against interest may be either
oral or in writing. 11
Whether the term res gestae be taken in its restricted or English meaning or,
on the other hand, be accorded its broad American significance, in neither case
is it required that the declaration against interest should be part of it. 12
882. [Declarations against Interest] ; Distinguished from Admissions. 13
The declaration against interest, forming the subject of an exception to the
rule against hearsay, is broadly distinguished from an admission, with which
it has at times been confused. The points of essential difference in main are
four: (1) The admission is a creature of procedure; the declaration against
interest is entirely a matter of evidence, i.e., of reasoning. (2) Admissions
are primary evidence of the facts stated; the declaration against interest is a
secondary grade of proof, received only when shown to be necessary to the case
of the proponent, the primary evidence being unavailable. (3) The admission
is receivable in evidence only when the declarant or some one identified with
him in legal interest is a party to the suit and the admission is offered against
him ; the declaration against interest may be made by anyone, and is receivable
in suits between third persons " and though made in favor of the present pro-
ponent 15 or one in privity with the declarant. 16 (4) The admission is re-
ceived although it was not considered by the declarant, at the time it was made,
as being opposed to his interest ; in the declaration against interest, the declarant
must have been distinctly conscious, at the time of making his assertion, that it
was directly opposed to his pecuniary or proprietary interest. 17
883. [Declarations against Interest]; Administrative Requirements; Neces-
sity. 18 As in other cases involving the use of secondary evidence, it is essen-
tial to the admission of the hearsay declaration against interest that the exist-
9. 4 Chamberlayne, Evidence, 2769 13. 4 Chamber layne, Evidence, 2770.
Declarations against interest, see note. Bender 14. Rand v. Dodge, 17 X. H. 343 (1845).
ed., 34 X. Y. 307. 15. Currier v. Gale, 14 Gray (Mass.) 504,
10. Kresling v. Powell, 149 Ind. 372, 49 77 Am Dec. 343 (1860).
X. E. 265 (1898). 16. Rand v. Dodge, 17 X. H. 343 (1845) ;
11. Rand v. Dodge, 17 X. H. 343 (1845). Turner v. Dewan, 41 U. C. Q. B. 361 (1877).
12. Mentzer v. Burlingame, 85 Kan. 641, 17. Life Ins. Co. of Virginia v. Hairston,
118 Pac. 698 (1911) : White v. Choteau, 1 E. 108 Va. 832, 62 S. E. 1057, 128 Am. St. Rep.
D. Smith (X. Y.) 493 (1852) ; Ivat v. Finch, 989 (1908).
1 Taunt. 141, 9 Rev. Rep. 716 (1808) 18. 4 Chamberlayne, Evidence, 2771.
884 DECLARATIONS AGAINST INTEREST. 684
ence of a satisfactory necessity for using it be shown to the court. 19 The pro-
ponent's right to prove his case being regarded as paramount, he must do at
least two things: (1) He must show that a particular fact is fairly essential
to the establishment of his case. 20 (2) He must affirmatively prove 21 that he
is practically prevented from producing the primary evidence of it. In case of
hearsay, the extrajudicial statement offered in proof of the facts asserted, this
is the testimony of the percipient as a witness. In this connection, as in others,
the proponent may show the unavailability of the witness in a very conclusive
manner by proving that the declarant is, dead. 22 Should he be able to estab-
lish the fact that he has no means of compelling the declarant to testify 2;{ and
that the latter declines to do so voluntarily, as where the person whose extra-
judicial statement is offered is outside the jurisdiction of the court 24 or has
the benefit of a privilege and proposes to avail himself of it, or that by reason
of interest he is incompetent, 25 a sufficient case of forensic necessity is estab-
lished. Incapacity to testify, due to some physical or mental 2<! infirmity, may
constitute a satisfactory necessity to warrant the court in receiving the sec-
ondary evidence.
884. [Declarations against Interest] ; Subjective Relevancy. 27 Adequate
knowledge on the part of the declarant must be shown sufficient to warrant the
jury as reasonable men in acting on it. 28 An absence of a motive to misrepre-
sent must also appear 2<J but it need not be made ante litem motam 30 and it
19. Manning v. Lechmere, 1 Atk. 45.3, 26 Ingalls, 16 Iowa 81 (1864); Stephens v.
Eng. Reprint 288 (1737). See, also, Warren Gwenap. 1 M. & Rob. 120 (1831).
v. Greenville, 2 Str. 1129 (1773). "The gen- 25. Pugh v. McRae, 2 Ala. 393. 394 (1841) ;
eral rule of evidence excludes all hearsay. Fitch v. Chapman. 10 Conn. 8, 11 (1833).
From necessity and from the impracticability 26. Mahaska Co. v. Ingalls. 16 Iowa 81
in some instances, of other proof, exceptions (1864); Union Bank v. Knapp, 3 Pick,
to this rule have been made." Westfield v. (Mass.) flfi. 15 Am. Dec. 181 (1825). But
Warren, 8 N. J. L 251 (1826). see, Harrison v. Blades, 3 Campb. 457 (1813).
20. It has even been required that no See also, Jones v. Henry, 84 N. C. 320, 324
other method of proving the fact should exist. (1881.
Lord Harclwicke. for example, suggested that 27. 4 Chamberlayne, Evidence, 2772,
the reason of the rule is that " no other [evi- 2773.
dence] can he had." Manning v. Lechmere, 28. Paine v. Crane, 112 Minn. 439, 128 N.
1 Atk 453. 26 Eng. Reprint 288 ( 1737). See, W. 574 (1910).
also, Warren v. Greenville. 2 Str. 1129 (1740) . 29. " The admissibility of the evidence rests
21. Wilson v. Simpson, 9 How. 100, 13 L. upon the improbability that one will admit
ed. 66 (1850). that which it is for his pecuniary interest to
22. Paine v. Crane, 112 Minn. 439, 128 N. deny." Mentzer v. Burlingame, 85 Kan. 641,
W. 574 (1910) 118 Pac. 698 (1911), per Benson, J.
23. Harriman v. Brown, 8 Leigh (Va.) 697 30. Chandler v. Mutual L. I Assn., 131 Ga.
(1837). 82, 61 S. E. 1036 (1908) ; Halvorsen v. Moon,
24. Walnut Ridge Mercantile Co. v. Cohn, etc, Lumber Co., 87 Minn. 18, 91 N. W. 28,
79 Ark. 338, 96 S. W. 413 (1906) : Shearman 94 Am. St. Rep. 669 (1902) ; compare Ma-
v. Atkins, 4 Pick. (Mass.) 283, 293 (1826) ; haska Co. v. Ingalls Ex'r. 16 Iowa 81 (1864) ;
South Omaha v. Wrzensinski (Xebr. 1902), Paine v. Crane, 112 Minn. 439, 128 N. W. 574
92 N. W. 1045; Alter v. Berghaus, 8 Watts (1910).
(Pa.) 77 (1839).. But see, Mahaska Co. v.
685 MATURE OF INTEREST. 885-887
need not be spontaneous. 31 The burden of proving that it was against interest
lies on the proponent, 32 and whether a sufficient foundation for it is laid is a
question for the judge. 33
885. Nature of Interest; Pecuniary . a4 As embodied in the statement of the
rule the interest in derogation of which the declarant speaks may be either pe-
cuniary or proprietary. In other words, the statement must have antagonized
the direct material interest of the speaker as owner of money or other prop-
erty.
Pecuniary Interest. The declaration against interest is admissible when
the nature of that interest is pecuniary. ;:r>
The declarant, for example, may acknowledge himself legally indebted to
some other person. 36 On the other hand, he may state that nothing or some-
thing less than the prima facie sum is due to himself from a third person on a
particular account. 37
886. [Nature of Interest] ; Proprietary. 38 An equal guarantee of trust-
worthiness is furnished where the extrajudicial statement is opposed to the
proprietary interest of the declarant. 39
The interest may be either in personal property 40 or in real estate 41 or may
relate to the question of a boundary. 42
887. [Nature of Interest] ; Interest other than Pecuniary or Proprietary. 43
There are many other kinds of interest which a sane declarant may well regard
as of equal or even greater value than his money or tangible possessions, an-.l
declarations as to such matters ought on principle to be admissible as much as
declarations against material interest, but such is not the law. 44 Even a decla-
ration against the reputation of the declarant or subjecting him to legal liabil-
ity 45 is not admissible.
31. Doe v. Turford, 3 B. & Ad. 890, 1 L. J. Bowen v. Chase, 98 U. S. 254, 25 L. ed. 47
K. B. 262, 23 E. C. L. 388 (1832). (1878).
32. Sanguinetti v. Rossen, 12 Cal. App. 40. Bank deposits. Declarations by a wife
623, 107 Pac. 560 (1906). will be received to the effect that bank de-
33. Paine v. Crane. 112 Minn. 439, 128 N. posits belonged to the husband Moore v.
W. r>74 (1010). Fingar. 138 App. Div. 920, 122 X. V. Suppl
34. 4 Chamberlayne, Evidence. 2774. 851 (1910).
35. McCarthy v. Stanley, 151 App Div. 358, 41. Smith v. Moore. 142 N. C 277. 55 S. E.
136 X. Y. Suppl. 386 (112). 275. 7 L. R. A. (X. S.) 684 (1006)
36. Swan v. Morgan. 88 Hun 378. 34 X. Y 42. Manuel v Flynn. 5 Cal. App. 319, 90
Suppl. 829, 68 X. Y. St Rep. 76* <180.-,). Pac. 463 (1007).
37. Scammon v. Scammon. 33 X H. 52 43. 4 Chamberlayne. Evidence, 2779,
(1856); Sparling v. Wells, 24 X. Y. App. 2780.
Div. 584. 49 X. Y. Suppl. 321 (1898) ; Scott 44. Hank v. State. 148 Ind. 238. 46 X. E.
v. Crouch, 24 Utah 377, 67 Pac. 1068 (1902). 127, 47 X. E 465 (1807)
38. 4 Chamberlayne, Evidence, 2775- 45. Aver v. Colgrqve. 81 Hun (X. Y.) 322,
2778. 30 X. Y. Suppl. 788 (1894) : Penner v. Cooper,
39. Helm v. State, 67 Miss. 562, 7 So. 487 4 Munf. (Va.) 458 (1815) (trespass) ; Helm
(1890) ; Powers v. Silsby, 41 Vt. 288 (1868) ; v. State. 67 Miss. 562, 7 So. 487 (1890).
888
DECLARATIONS AGAINST INTEKEST.
686
888. [Nature of Interest]; General Requirements. 46 Judicial administra-
tion and, later on, procedure, has imposed certain general requirements as to
the nature of the interest which the proponent must show, regardless of whether
the statement be opposed to the pecuniary interest of the declarant or taken
to be in derogation of his estate in chattels or land. To establish the degree
of relevancy or probative force upon which this exception of the hearsay rule
rests, it is essential that the speaker should possess a present, rather than be
expecting to acquire a future interest. 4 ' Furthermore the interest must be
known to the declarant 4S and be substantial. 40 Oral declarations are as ad-
missible as written 50 unless the substantive law requires the production of a
writing 51 and the declaration may be in any form. 52 Such declarations are
admissible not only in proof of facts directly asserted but also of facts inci-
dentally stated 53 as the amount of rent 54 or the source of title. 55 Such a
declaration is by no means conclusively binding upon the declarant. He may
explain 50 or modify it, but is not permitted to rebut it by evidence of other
declarations. 57 In pursuance of the same line of thought, the declaration
against interest has been spoken of as having but slight evidentiary weight
as against documentary evidence. 58
46. 4 Chamberlayne, Evidence, 2781-
2789.
47. California. Thaxter v. Inglis, 121 Cal.
593, 54 Pac. 86 (1898).
48. Taylor v VVitham, 3 Ch. D. 605, 45 L.
G. Ch. 798, 24 Wkly. Rep. 877 (1876).
49. That the entire declaration should he
against the pecuniary or proprietary interest
of the declarant is not required. Smith v.
Moore, 142 N. C. 277, 55 S. E. 275, 7 L. R.
A. (X. S.) 684 (1906).
50. Bowen v. Chase, 98 U. S. 254, 25 L.
ed. 47 (1878).
51. Marsh v Xe-ha-sa-ne Park Assoc., 18
Misc. (N Y.) 314, 42 X. Y. Suppl. 996, re-
versed 25 App. Div. 34, 49 N. Y. Suppl. 384
(1896).
52. Hall v. Insurance Co., 3 Phila. 331
(1859) ( enrolment of vessel ).
53. Taylor v. Gould, 57 Pa. St. 152 (1868).
54. Reg. v. Exeter, L. R. 4 Q. B. 341, 10
B. & S. 433, 38 L. J M. C. 126, 20 L. T. Rep.
(X S.) 693, 17 Wkly. Rep. 850 (1869).
55. Sly v. Dredge, 2 P. D. 91, 46 L. J. P.
& Adm. 63, 25 Wkly. Rep. 463 (1877).
56. Phipps v. Martin, 33 Ark. 207 (1878) ;
Raymond v. Cummings, 17 X. Bruns.w. 544
(1877).
57. Harrison v. Harrison, 80 Xeb. 103, 113
X. W. 1042 (1907).
58. Pargoud v. Amherson, 10 La. 352
(1830).
CHAPTER XL.
HEARSAY AS SECONDARY EVIDENCE; DECLARATIONS AS TO MATTERS OF
PUBLIC UR GENERAL INTEREST.
Declarations an to matters of public and general interest, 889.
Administrative requirements; necessity, 890.
subjective relevancy ; adequate knowledge, 891.
absence of controlling motive to misrepresent, 892.
Form of declar<ition, 893.
Scope of rule; boundaries, etc., 894.
889. Declarations as to Matters of Public and General Interest. 1 Matters
of public and general interest, those of such relation to the general life of the
community or of the public at large as to lead to a rational assumption that
they have been widely and understandingly discussed, are the subject of
another u exception " to the rule excluding hearsay. 2 In other words, the pro-
ponent being unable to produce, in the exercise of his paramount right to prove
his case, the primary evidence of these important facts is permitted, under
fixed conditions, to introduce extrajudicial statements as a secondary grade
of proof.
890. Administrative Requirements; Necessity. 3 Before secondary evidence
of unsworn statements can be received, as proof of the facts asserted, it is
essential, here, as in other instances of the use of secondary evidence, that
the primary proof of the oral testimony of the declarant 4 should be shown
to be unavailable, and that, in consequence, a sufficient administrative neces-
sity to procure secondary evidence has been placed on the proponent. 5 A
declaration of this nature is said to be admissible " where no better evidence
can be had." 6 In general, administration requires that the declarant should
be shown to be dead." although other facts showing unavailability have occa-
1. 4 Chamberlayne, Evidence, 2790 ment of the unavailable person. Beard v.
2. Inhabitants of Enfield v. Woods, 212 Talbot, 2 Fed. Cas Xo. 1,182. Even that a
Mass. 547, 90 X. E. 331 (1012). Hearsay dec- surveyor testifies to the same effect does not
larations, to be admissible concerning matters exclude the evidence Yo\v v Hamilton, 136
of general or public interest, must refer to a X. C. 357. 48 S. E. 782 < 1!)04).
public or general right and not to a particu- 5. Scroggins v. Dalrvmple. 52 X. C. 46
lar exercise of it. Inhabitants of Enfield v. (1S50) : Birmingham v. Anderson. 40 Pa. St.
Woods, 212 Mass. 547. X. E .331 (1012). 506 < 1S61 ) : Turner Falls Lumber Co. v.
3. 4 Chamberlayne, Evidence. 2701. Burns. 71 Vt. 354. 45 Atl. 896 (1890).
4. That another declarant on the point 6. King v. Watkins, 98 Fed. 013 (1899).
can be procured as a witness is not a neces- 7. Lay v. Neville. 25 Cal. 545 (1864).
sary ground for excluding the hearsay state-
687
891, 892 DECLARATIONS AS TO PUBLIC MATTERS. 688
sionally been deemed to establish a necessity warranting the reception of
the evidence. 8 It can scarcely be said, however, that this very rational in-
dulgence is in accordance with the general rule, under which absence from
the jurisdiction 9 is not treated as a sufficient ground for failing to produce
the declarant as a witness.
891. [Administrative Requirements]; Subjective Relevancy; Adequate
Knowledge. 10 Unless the situation presented to a presiding judge is such that
knowledge on the part of a given declarant as to the existence of a fact of
public and general interest may rationally be assumed, affirmative proof to
the satisfaction of the court must be offered on the subject. 11 The court will
assume knowledge by the witness residing in the community 12 of any public
boundary but where a private boundary of quasi-public concern is in question
the witness must be shown to have actual knowledge 13 which may be assumed
in a neighbor 14 or one owning adjoining land 15 or a surveyor who has sur-
veyed the land ie> or his assistants. 17
J -
892. [Administrative Requirements] ; Absence of Controlling Motive to Mis-
represent.^ Essential to the subjective relevancy of an extrajudicial state-
ment relating to a matter of public and general interest as secondary evidence
of the facts asserted, is not only the requirement that the declarant was pos-
sessed of adequate knowledge but also that the latter was not, at the time of
making his statement, under a controlling motive to misrepresent. The de-
clarant must be disinterested. 19 Should an interest in the speaker to mis-
represent be exhibited to the court his declaration may properly be rejected. 20
The influence of bias 21 or of the partisan warmth of feeling developed by the
Lawrence v. Tennant, 64 X. H. 532, 15 All. 15. Keefe v. Sullivan County R. R., 75 N.
543 (1888). H. 116, 71 Atl. 379 (1908).
8. Hartford v. Maslen, 76 Conn. 599, 615, 16. Simpson v. De Ramirez, 50 Tex. Civ.
57 Atl. 740 (1904), per Hall, J. (strip of App. 25, 110 S. W. 149 (1908). The survey-
land claimed as part of public parks). or's knowledge of the names and relations of
9. Tracy v. Eggleston, 108 Fed. 324, 47 C. landmarks may be shown by the survey itself.
C. A. 357 writ of certiorari denied 183 U. S. Smith v. Headrick, 93 N. C. 210 (1885).
699, 22 S. Ct. 935. 46 L. ed. 396 (1901). 17. Overton v. Davisson, 1 Gratt. (Va.)
10.4 Chamberlayne, Evidence, 2792- 216, 42 Am. Dec. 544 ( 1844) ; Hill v. Proctor,
2797. 10 W. Va. 59 (1877).
11. Lay v. Xeville, 25 Cal. 545 (1864); 18.4 Chamberlayne, Evidence, 2798-
Cornwall v. Culver, 16 Cal. 423 (1860); 2799.
Adams v. Stanyan, 24 X. H. 405 (1852); Key- 19. Hathaway v. Goslant, 77 Vt. 199, 59
stone Mills Co. v. Peach River Lumber Co. Atl. 835 (1905).
(Tex. Civ. App. 1906), 96 S. W. 64. 20. Corbleys v. Ripley, 22 W. Va. 154, 46
12. Bow v. Allenstown, 34 N. H. 351, 366, Am. Rep. 502 (1883).
69 Am. Dec. 489 (1857). 21. Bethea v. Byrd, 95 X. C. 309, 59 Am.
13. Lawrence v. Tennant, 64 X. H. 532, 15 Rep. 240 (1886). "Those declarations which
Atl. 543 (1888). are liable to the suspicion of bias from inter-
14. Brenstein v. Xort-h American Realty est " are always to be excluded. Harriman v.
Co., 119 X. Y. Suppl. 1 (1909) ; Broadwell v. Brown, 8 Leigh (Va.) 697, 713 (1837), per
Morgan, 142 X. C. 475, 55 S. E. 340 (1906) Tucker, P.
(half a mile).
FORM OF DECLARATION.
893, 894
arising of a controversy 22 have been deemed to render the statement untrust-
worthy. 23 It has, therefore, been required that the declaration should have
been made ante litem motam. 24 Statements made post litem motam may,
however, be used in corroboration of those made before any controversy on
the subject arose. 25 The fact that the declaration is self -sen-ing does not
necessarily exclude it but affects its weight only.-
893. Form of Declaration. 27 The declaration may be in any form, oral
or written, 28 circumstantial 29 or by proof of reputation. 30 Declarations as
to boundaries may take the form of deeds, surveyors' notes, 31 plans 32 and
the like.
894. Scope of Rule ; Boundaries, etc. 33 The admissibility of the extra-
judicial statement extends to facts directly but not to those incidentally 34
asserted. Facts of the latter nature, such as dates, 35 and the like, are not
apt to be the subjects of extended discussion and mutual correction 36 upon
which the relevancy of this species of evidence rests. For the purposes of
the present rule, the test of what is public is as to whether the subject in
question is calculated to excite such a general, sustained, and, as it were,
spirited discussion as will be apt to result in the establishment of a correct
opinion. The rule may cover municipal boundaries 37 or incorporation 38 and
22. Dancy v. Sugg, 19 N. C. 515 (1837).
23. Royal v. Chandler, 83 Me. 150, 21 Atl.
842 (1891).
24. Hamilton v. Smith, 74 Conn. 374, 50
Atl. 884 (1902).
25. Whitman v. Haywood, 77 Tex. 557, 14
S. W. 166 (1890) : Martyn v. Curtis, 68 Vt.
397, 35 Atl. 333 (1896).
26. Child v. Kingsbury, 46 Vt. 47 (1873) ;
Tracy v. Eggleston, 108 Fed. 324, 47 C. C. A.
357 "(1901).
27. 4 Chamberlayne, Evidence, 2800.
28. Bow v. Allenstown, 34 X. H. 351, 69
Am. Dec. 489 (1857).
29. Bow v. Allenstown, 34 N. H. 351, 69
Am. Dec. 489 (1857).
30. Attorney General v. Antrobus, 74 Law
J. Ch. 599. 2 Ch. 188. 92 Law T. 790, 3 Local
Gov. R. 1071, 21 Times Law R. 471 (1905).
31. Morton v. Folger, 15 Cal. 275 (1860).
See Weld v. Brooks, 152 Mass. 297, 25 X. E.
719 (1890): Bow v. Allenstown. 34 X. H.
351. 69 Am. Dec. 489 (1857): Daniels v.
Fitzhugh, 13 Tex. Civ. App. 300, 35 S. W. 38
(1896).
32. Birmingham v. Anderson. 40 Pa. St.
506 (1861) : Cottingham v. Seward (Tex. Civ.
App. 1894), 25 S. W. 797. See, also. Mineral
R. & M. Co. v. Auten, 188 Pa. St. 568, 41 Atl.
327 (1898) (draft of a survey over a hun-
dred years old held admissible).
33. 4 Chamberlayne, Evidence, 2741 et
seq.; 4 Chamberlayne, Evidence, 2801-
2810.
34. Smith v. Cornett, 38 S. W. 689, 18 Ky.
L. Rep. 818 (1897) (date); Peck v. Clark,
142 Mass. 436, 8 X. E. 335 (1886); Van
Deusen v. Turner, 12 Pick. (Mass.) 532
(1832).
35. Bolton Southwest School Dist. v. Wil-
liams, 48 Conn. 504 (1881).
36. Southwest School Dist. of Bolton v.
Williams, 48 Conn. 504, 507 (1881).
37. Chapman v. Twitchell, 37 Me. 59, 58
Am. Dec. 773 (1853).
38. Bow v. Allenstown, 34 X. H. 351, 69
Am. Dec. 489 (1857).
' 39. Dawson v. Town of Orange, 78 Conn.
96, 61 Atl. 101 (1905) (town common).
40. Thomas v. Jenkins. 6 A. & E. 525, 1
Jur. 261, 6 L. J. K. B. 163, 1 X. & P. 587,
33 E. C. L. 285 (1837).
In America, however, the necessities of a
new country have generally resulted in the
admission of such evidence of a deceased per-
son [Cadwalader v. Price. Ill Md. 310. 73
Atl. 273, 134 Am. St. Rep. 603-n (1909)] even
894 DECLARATIONS AS TO PUBLIC MATTERS. 690
whether lands are public 3y but not (in England) private boundaries 40 unless
ancient 4l or coinciding with public boundaries. 4 -
to prove facts incidentally stated. Hamilton 41. McKineron v. Bliss, 31 Barb. 180, af-
v. Menor, 2 Serg & R. (Pa.) 70 (1815) ; Mur- firmed ->l X. Y. 206 ( 1860).
ray v. Spencer, 88 N. C. 357 (1883). State- 42. Curtis v. Aaronson, 49 N. J. L. 68, 7
ruents of the nature of the claim made are not, Atl. 886, 60 Am. Rep. 584 ( 1886) ; McKhmon
however, admissible under this rule. v Bliss, 21 N. Y. 206 (1860).
CHAPTER XLI.
HEARSAY AS SECONDARY EVIDENCE; DYING DECLARATIONS.
Hearsay as secondary evidence; dying declarations, 895.
Administrative requirements; necessity, 896.
relevancy, 897.
subjective relevancy, 898.
completeness demanded, 899.
rule strictly construed, 900.
who are competent as declarants, 901.
function of the court, 902.
Expectation of death, 903.
modes of proof, 904.
Form of declaration, 905.
Number of dying declarations, 906.
Privilege of husband and wife, 907.
Scope of declaration, 908.
Weight for the jury, 909.
a discredited rule, 910.
impeachment, 911.
mental state of declarant, 912.
Rule constitutional, 913.
895. Hearsay as secondary Evidence ; Dying Declarations. 1 A unique form
of extrajudicial statement, often full of dramatic interest, employed by judicial
administration as secondary proof of the facts asserted, is the dying declara-
tion. On an indictment for the homicide of the declarant his statement cover-
ing the details of the fatal encounter is admissible, provided that it be shown,
to the satisfaction of the presiding judge, to have been made under a con-
scious sense of impending death. The relevancy upon which its a'dmissibility
was originally predicated and since maintained, although with apparently
decreasing confidence, is the solemnity of the occasion on which the statement
is made. Its probative force is closely related to that created by the presence
of an oath. At the time when the present exception took its rise immediate
consequences were thought to attend perjury in undergoing the oath ordeal.
In a later age, the false taking of an oath was thought to be punished by an
offended God after the death of the offender. Under this conception, it was
1. 4 Chamberlayne, Evidence, 2811. Dy- N" Y. 470. 401. Admissibility of dying decla-
ing declarations, see note, Bender ed., 192 rations, see note, Bender ed., 56 N. Y. 96.
691
896,897 DYIXQ DECLAKATIONS. 692
not surprising that the immediate prospect of impending death should be
thought to impose upon the mind of a declarant a feeling of the presence
of the Divine Being which would clear it of all motive to misrepresent the
truth, and, being practically equivalent to the sanction of an oath, might fairly
be regarded as a satisfactory substitute for it. Relevancy being thus estab-
lished, extrajudicial statements by the victim of a homicide giving the cir-
cumstances attending the occurrence will be received in evidence as secondary
proof of the facts asserted if made in the fixed belief of immediately im-
pending death. 2 Such statements may be received at the instance of the
defense :! as well as that of the prosecution. 4 This may occur where the dying
declaration absolves the accused from responsibility, laying the blame upon
another person. 5
Presence of Accused. It is not required for the admissibility of such a
statement that the accused should have been present or represented by counsel
when it was made. 6
896. Administrative Requirements ; Necessity. 7 The administrative ground
for receiving secondary evidence of the res gestae of a homicide in the form
of a dying declaration is a recognition of the necessity under which the
prosecution as proponent often labors in proving its case. 8 The injured person
being dead, he is no longer available as a witness. The primary proof, the
testimony of the declarant, is inaccessible. Under these circumstances the
charge could scarcely be made out except by the use of the declarations of the
deceased concerning the facts of the transaction. Frequently, only he and
the accused are cognizant of the real facts. The extrajudicial declarations of
the injured person must be received 9 unless there is to be a failure or mis-
carriage of justice.
897. [Administrative Requirements] ; Relevancy. 10 As in other instances
of the reception of secondary evidence, not only must the proponent show that
it is fairly necessary to the proof of his case but also that the evidence is
relevant, objectively and subjectively considered. The question of the ob-
jective relevancy of dying declarations seldom presents much difficulty. Even
if the secondary evidence should be in part irrelevant, the dying declaration
will still be. received if otherwise competent. 11
2. People v. Falletto, 202 N. Y. 494. 96 Greg 61, 32 Pac 1031, 33 Pac. 537, affirmed
N. E. 355 ( 1911 ) . 24 Greg. 61. 33 Pac. 537 < 1S93) .
3. Mattox v. U S., 146 U. R. 140, 13 S. ft. 7. 4 Chamberlayne, Evidence, 2812.
50, 36 L. ed. 917 (1S92). 8. Morgan v. State, 31 Ind. 215 (1869) ;
4. To refuse this privilege has been held to State v. Knoll. 69 Kan. 767. 77 Pac. 580
be error. Green v. State. 89 Miss. 331, 42 (1904): People v Falletto, 202 N. Y. 494.
So. 797 (19071 96 X. E 355 (1911); State v. Watkins (N.
5. People v. Southern, 120 Cal. 645, 53 Pac. C. 1912), 75 S. E. 22.
214 (1898). 9. Rhea v State, 75 S. E. 22 (1912).
6. Shenkenberger v. State. 154 Tnd. 630, 10. 4 Chamberlayne, Evidence, 2813.
57 N". E 519 (1900); State v. Brunnetto, 13 11. State v Privas, 32 La. Ann. 1086, 36
La. Ann. 45 (1S58) ; State v. Foot You, 24 Am. Rep. 293 (1880).
693 KELEVANCY. 898-900
898. [Administrative Requirements] ; Subjective Relevancy. 12 The de-
clarant must be shown to have adequate knowledge of the facts stated especially
of the identification of the accused, 13 and the dying man is presumed to have
no motive to misrepresent. 14 That the statement is self-serving affects merely
its probative force 10 while the fact that the declarant asserts himself responsi-
ble for hia own death adds to its weight. 10 With the change in modern views
as to the future life there is much doubt often expressed as to the reliability
of this species of testimony.
899. [Administrative Requirements]; Completeness demanded. 17 In respect
to that which it purports to cover, a dying declaration must be complete. 18
Administration by no means requires that the extrajudicial statement must,
in order to be admissible, be a full account of the entire res gestae, properly
so-called, of the fatal meeting. 19 What is demanded is that the declarant
should be shown, or rationally assumed, to have said all which he intended
to say on the topic which he has spoken about. No modification which the*
speaker regarded as essential to the accuracy of his statement can properly
be omitted. Should there be reasonable ground for believing that some such
qualification has failed to appear, the dying declaration will be rejected as
incomplete. 20 The declaration need not however be presented in the exact
words of the declaration 21 but the substance is enough. 22
900. [Administrative Requirements] ; Rule strictly construed. 23 Distrust
of the soundness of the judicial reasoning, upon which the admissibility of
this particular exception to the hearsay rule was established and is still main-
tained, has naturally led to the formulation of an extremely restricted rule on
the subject of dying declarations. It is said that they should be received with
great caution. 24 Extension by interpretation and intendment is not favored.
Unless an extrajudicial statement can be brought strictly within the rule, the
12. 4 Chamberlayne, Evidence, 2814- 17. 4 Chamherlayne, Evidence, 2820-
2819. 2821.
13. Com. v. Roddy, 184 Pa. 274, 39 Atl. 211 18. State v. Cronin, 64 Conn 293, 29 Atl.
(1898). 536 (1894).
14. Donnelly v. State, 26 X. J. L. 507. 620 19. State v. Xettlebush, 20 Iowa 257
(1857) : R. v. Perkins, 9 C. & P. 395 (1840). (1866) ; State v. Patterson, 45 Vt. 308, 12
15. Mattox v. U. S. 146 U. S. 140, 13 Sup. Am. Rep. 200 (1873).
Ct. 50, 36 L. ed. 917 (1892). 20. C'ooper v. State. 89 Miss. 351, 42 So.
16. Beaty v. Com., 140 Ky. 230, 130 S. W. 666 (DOT).
1107 (1910) : Com. v. Matthews, 89 Ky. 287, 21. Park v. State, 126 Ga. 575, 55 S. E.
12 S. W. 333, 11 Ky. Rep. 505 (1889). Com- 489 (1906).
pare Kearney v. State. 101 Ga. 803. 29 S. E. 22. Murphy v. People, 37 111. 447 (1865).
127, 65 Am. St. Rep. 344 (1897). 23.4 Chamherlayne, Evidence, 2822-
Friendship for another may induce the 2826.
declarant to falsely accuse himself of having 24. Gardner v. State, 55 Fla. 25, 45 So.
been the aggressor in the encounter from the 1028 (1908) ; Smith v. State, 9 Ga. App. 403,
effects of which he is suffering. See Boyd v. 71 S. E. 606 (1911) ; Lipscomb v. State, 75
State, 84 Miss. 414, 36 So. 525 (1904). Miss. 559, 23 So. 210 (1897).
901 DYING DECLARATIONS. 694-
judicial impulse is to reject it. 25 In brief, a dying declaration is received
only in criminal actions for homicide, where the death of the declarant is the
subject of the charge and the circumstances of the killing form the basis of
the declaration, the latter having been made under a sense of immediately
impending death. The evidence is not received, according to the course of
the common law. in civil actions, 20 illegal acts implying an assault even in
case of those which, like abortion, result in death. Although the earlier law
admitted the evidence in case of other crimes, 27 it is now settled that the dying
declaration is admissible only in cases for homicide. 28 Where a conspiracy
is shown, the dying declarations of deceased will be received as against a
defendant who did not fire the fatal shot, but was present on the scene actively
assisting in the perpetration of the crime. 29
901. [Administrative Requirements] ; Who are competent as Declarants. 30
Speaking generally, any person is a competent declarant who would be re-
ceived as a witness. In other words, anyone who would, if living, be competent
to testify, may be the declarant in a dying declaration. 31 Conversely, in case
the maker of the dying statement would, if alive, be incompetent as a wit-
ness, 32 his dying declaration would be rejected. 33 Included in this general
statement is the fact that where the declarant, by reason of infancy, 34 insanity, 35
or other cause, 36 would have been incompetent to have testified as a witness,
his declaration made in extremis will not be received. As an ex-convict is a
competent witness, his dying declaration is admissible. 37 The court may
25. State v. Belcher, 13 S. C. 459 (1880). 27. R. v Drummond, Leach Cr. L. 4th ed.
26. Thayer v Lombard, 165 Mass. 174, 42 337 (1784) (robbery).
N. E. 563, 52 Am. St. Rep. 507 (1896). It 28. "Such evidence is admissible, in cases
is well settled in this country that dying of homicide, only where the death of the
declarations are admissible in homicide cases deceased is the subject of the charge, and the
only. The Supreme Court of Kansas has, circumstances of the death are the subject of
however, in a learned opinion declared that the dying declarations." People v. Davis, 56
there is no basis for the distinction and holds X. Y. 95, 103 (1874), per Grover, J
that they are admissible in civil cases. The 29. People v. Moran, 144 Cal. 48, 77 Pac.
theory on which they are admitted is that the 777 (1904).
realization of impending death operates on 30. 4 Chamberlayne, Evidence, 2827,
the mind and conscience of the declarant with 2828.
strength equal to that of an ordinary oath 31. North v. People, 139 111. 81, 28 N. E.
administered in a judicial proceeding, and 966 (1891).
this reason applies equally in civil cases. 32. R v. Drummond, 1 Leach Cr. L. 4th
This was formerly the rule in England and ed. 337 (1784) (convict),
such declarations were not limited to homi- 33. State v. Baldwin, 15 Wash. 15, 45 Pac.
cide cases until after 1830 and then the limi- 650 (1896).
tation was made by the courts under the old 34. Hunter v State, 59 Tex. Cr. App. 439,
theory that a criminal wrong was more 129 S. W. 125 (1910) (10 vears).
worthy of attention of the courts than a civil 35. Guest v. State, 96 Miss. 871, 52 So.
wrong but as this idea has been discarded 211 (1910).
the rule itself should also he dropped. 36. Jackson v. Vredenburgh, 1 Johns. 159,
Thurston v. Fritz, 91 Kan. 468, 138 Pac. 625, 163 (1806) (interest).
50 L. R A. (N S.) 1167 (1914). 37. State v. Blount, 124 La. 202, 50 So. 12
(1909).
695 FUNCTION OF COURT. 902, 903
make various judicial assumptions as that one who thought himself in extremis
had the mental feelings appropriate to that situation 3S or that an infant of
tender years was incompetent as a witness."' 9
902. [Administrative Requirements] ; Function of the Court. 40 The dying
declaration, is not permitted by judicial administration to go directly to the
jury. 41 Whether the conditions essential to its admissibility have been shown
to exist in a particular case is an administrative question * 2 and frequently,
in view of the momentous consequences to the defendant, one of difficulty and
nicety. The court cannot, it is said, properly leave to the jury the question
of the admissibility of a dying declaration. 43 Where, however, the court as
a matter of law passes upon the competency of dying declarations and admits
them, but the evidence is conflicting regarding a fact which determines the
admissibility of the statement, the presiding judge may reasonably regard the
administrative expedient of again submitting the question of the competency
of the declarations to the jury under appropriate alternative instructions. 44
The appellate courts will not under the prevailing rule reverse the action of
the trial court in these matters if reason has been employed. 45
903. Expectation of Death. 46 The subjective sense of impending dissolu'
tion on the part of the deceased at the time of making his statement, must be
proved to the satisfaction of the presiding judge, if the dying declaration is to
be received. 47 It is not sufficient to render the statement admissible that the
declarant should be aware that he is certain ultimately to die of his injury. 48
He must be conscious 49 that the hand of death rests upon him, that the
grim visitor has arrived, that there is absolutely no chance of anything for
him but immediate death. 50 All hope and expectation of living must have
been abandoned. 51 The declarant should be possessed by a fixed feeling that
he must die at once. 52 Dying declarations should not be confused with ad-
38. Lambeth v. State, 23 Miss. 322, 358 44. Willoughby v. Territory, 16 Okla. 577,
(1852) ; People v. Craft. 148 X. Y. 631. 43 86 Pac. 56 (1906i.
X. E. 80 (1896). 45. State v. Monich, 74 X. J. L. 522, 64
39. State v. Frazier, 109 La. Ann. 458, 33 Atl. 1016 (1906).
So. 561 (1903) ; Rex. v. Pike, 3 C. & P. 598, 46. 4 Chamberlayne, Evidence. 2831-
14 E. C. L. 735 (1829) (four years). 2834.
40. 4 Chamberlayne, Evidence, 2829, 47. People v. Governale, 193 N. Y. 581, 86
2830. X. E. 554 (1908).
41. State v Johnson, 118 Mo. 491, 24 S. 48. People v. Cassesse, 251 111. 422, 96 X.
W. 229, 40 Am. St. Rep. 405 (1893). E. 274 (1911).
42. State v. Kuhn, 117 Iowa 216, 90 X. W. 49. State v. Brumo, 153 Iowa 7, 132 X. W.
733 (190-2) 817 (1911).
43. Roten v. State, 31 Fla. 514, 12 So. 910 50. People v. Del Vermo, 192 X. Y. 470, 85
(1893) ; State v. Zorn, 202 Mo. 12, 100 S. W. X. E. 690 (1908).
591 (1907); State v. Johnson, 118 Mo. 491, 51. Williams v. State, 168 Ind. 87, 79 X.
24 S. W. 229, 40 Am. St. Rep. 405 (1893) ; E. 1079 (1907).
Willoughby v. Territory, 16 Okla. 577, 86 52. Com. v. Bishop, 165 Mass. 148, 42 X.
Pac. 56 (1906); State v. Center, 35 Vt. 378 E. 560 (1896). A dying declaration is not
(1862). admissible unless it is made at a time when
904,905 DYING DECLARATIONS. 690
missions by conduct as where the deceased makes statements in the presence
of the accused under such circumstances that silence may be taken as proof
of acquiescence 53 or where the statement is spontaneous and part of the res
yestae, 54 in which case it need not appear that the deceased then entertained a
present expectation of death. If the declarant thought that he was under the
shadow of death his statement is admissible although hi* attendants regarded
him as having a chance of recovery r>r> and even so assured him 5C but should
it appear that he entertained the least hope of recovery 5T even without reason 58
his statement is not receivable. The fact that death does not occur at once is
immaterial. 59
904. [Expectation of Death] ; Modes of Proof." That the declarant, be-
lieving himself to be in extremis, made his statement under the solemn sense
of inevitable and impending death can be shown in any of several ways. The
only requirement imposed by judicial administration is that the presiding
judge should be reasonably satisfied that the declaration was made under the
sanction required by law. 61 The fact to be established being psychological, the
difficulty of proof authorizes, if not requires, an extended range of evidence.
This proof may consist in the conduct of the declarant, 62 as where he calls
for prayers, 63 or may be found in his declarations 4 made before or after the
statement 65 or an inference may be drawn from his physical condition at the
time (iti or from statements made to him at the time as to his condition. 67
905. Form of Declaration. 08 Most statements are oral and may be in any
the declarant had abandoned all hope of re- 60. 4 Chamberlayne, Evidence, 2835-
covery. A sentence added to a dying declara- 2840.
tion of a Chinaman that " 1 make the same 61. People v. Smith, 172 N. Y. 210, 64 N.
under the fear and belief that 1 will die" E. 814 (1902).
which statement was inserted before signature 62. State v. Bridgham, 51 Wash. 18, 97
at the request of the district attorney as it Pac. 1096 (1908).
was not his voluntary statement is not ad- 63. White v. State, 111 Ala. 92, 21 So.
missible. State v. Fong Loon, 29 Idaho 248, 330 (1896) ; Ward v. State, 85 Ark. 179, 107
158 Pac. 233, L. H. A. 1916 F 1198 (1916). S. W. 677 (1908) (prayed); Lyens v. State,
53. Donnelly v. State, 26 N. J. L. 463 133 Ga. 587, 66 S. E. 792 (1909) (prayed);
( 1857 ) . State v. Spencer, 30 La. Ann. 362 ( 1878) .
54. Healy v. People, 163 111 372. 45 N. E. 64. Com. v. Thompson. 159 Mass. 56, 33
230 (1896) ; Goodall v. State, 1 Oreg. 333, 80 N. E. Ill (1893).
Am. Dec. 396 (1861). 65. Remoteness. The declarations as to
55. People v. Simpson, 48 Mich. 474, 12 N. apprehension of death must be made suffi-
W. 662 (1882) : State v. Bradley. 34 S. C. ciently near the time of the dying declara-
136. 13 S. E. 315 (1890). tion to be relevant Where a considerable
56. Pitts v. State. 140 Ala 70. 37 So. 101 length of time intervenes the evidence may be
(1904). rejected. Phillips v. State, 3 Ala. App. 218,
57. People v. Hodgdon. 55 Cal. 72. 36 Am. 57 So 1033 (1912) (several days).
Rep. 30 ("reali/ing that I may not recover ") 66. State v. Sullivan. 20 R. I. 114, 37 Atl.
(18SO). 673 (1S97).
58. Com. v. Roberts, 108 Mass. 296 (1871). 67. People v. White, 251 111. 67, 95 X. E.
59. Johnson v. State, 102 Ala. 1, 16 So. 99 1036 (1911).
(1893). 68. 4 Chamberlayne, Evidence, 2841-
2846.
69:
FOKJI.
906,907
language 69 or form T0 and need not be spontaneous 71 but may be in reply to
questions 72 or by signs 73 if it is clear what the intention was. 74 The state-
ment is often written 75 but need not be signed 76 and if written its contents
must be proved by production of the paper itself. 77 It is immaterial whether
the statement is sworn to or not 7ti and it may be used merely as a memorandum
to refresh the memory of the witness who heard the statement made. 79
906. Number of dying Declarations. 80 Where statements are made by the
deceased at different times, all may be proved as his dying declarations if all
are made under a sense of impending death. 81 Should the original statement
have been made while the declarant was not in the required mental condition,
his subsequent affirmance of it, while under the sense of impending dissolution,
admits the earlier declaration, provided that there is no uncertainty as to what
statements are referred to. 82
907. Privilege of Husband and Wife. 83 Under the well-known principle
of the common law that husband and wife are permitted to testify as to acts
of violence committed by one against the persor of the other, it is not questioned
in any quarter that the dying declarations of a wife may be admissible upon
the trial of an indictment brought against her husband for killing her or vice
versa. 84 In other words, the relation of husband and wife does not affect the
69. Daughdrill v. State, 113 Ala. 7, 21 So.
378 (1896) (as message to wife).
70. State v. Ashworth, 50 La. Ann. 94, 2?
So. 270 (1898); Brande v. State (Tex. Cr.
App. 1898), 45 S. W. 17 (1898) (statement
may be given at different times with interrup-
tions) .
71. Supra, 903.
72. Smith v. State, 9 Ga. App. 403, 71 S.
E. 606(1911) (bystander).
73. People v. Madras, 201 N. Y. 349, 94
X. E. 857 (1911).
74. McHugh v. State, 31 Ala. 317 (1858).
75. Com. v. Birriolo, 197 Pa. St. 371, 17
Atl. 355 (1900).
76. State v. Carrington, 15 Utah 480. 50
Pac. 526 (1897).
77. Gardner v. State, 55 Fla. 1025, 45 So.
1028 (1908) (copy rejected)
78. Jackson v. State (Ark. 1912), 145 S.
\V. 559: State v. Byrd, 41 Mont. 585, 111 Pac.
407 11910); State v. Talbert, 41 S C. 526,
19 S. E. 852 (1894). See, also, State v.
Clark, 64 W. Va. 625. 63 S. E. 40-2 (1008).
79. Sailsherry v. Com., 32 Ky. L. Rep.
1085, 107 S. \V. 774 (1908) : Com v. Haney.
127 Mass. 455 (1879) : State v Whitson. Ill
X. C. 695. 697. 16 S. E. 332 (1892) : Turner
v. State. 89 Tenn. 547. 15 S. W. S3S (1891)
Where a dying declaration is taken through
an interpreter by a stenographer the stenog-
rapher cannot himself testify to what the
interpreter told him as this is hearsay. State
v. Fong Loon, 29 Idaho 248, 158 Pac. 233,
L. R. A. 1916 F, 1198 (1916) The use of a
printed form in obtaining a dying declaration
containing questions as to knowledge of im-
pending death is to be discouraged as tending
to cause the questions to be asked in a per-
functory manner. If the questions are slurred
over or answered by a perfunctory nod or a
careless assent there is an utter absence of the
clear and unequivocal expression of the cer-
tain conviction of impending death which the
law has always demanded as an essential pre-
requisite to the admission of unsworn decla-
rations of fact which may be used to deprive
a hiynan being of his life. But the mere use
of the printed form will not of itself cause
the rejection of the declaration People v.
Kane. 213 X. Y 260. 107 X E. 655, L. R. A
1915 E 607 (1915).
80. 4 Chamberlayne. Evidence. 2847.
81. Dunn v. People, 172 111. 582, 50 N. E.
137 11898).
82. State v Peacock, 58 Wash. 41, 107 Pae.
1022, 27 L. R. A. (X. S.) 702 n. (1910).
83. 4 Chamberlayne. Evidence. 2848.
84. Afoore v. State. 12 Ala. 764. 42 Am. Dec.
276 (1848) ; People v. Green, 1 Den. (N. Y.)
908
DYING DECLARATIONS.
698
admissibility of the statement. It will be received if otherwise admissible. 85
Still more clearly, no impediment would arise on this score where the accused
was merely an accomplice with the husband of the declarant. 80
908. Scope of Declaration. s7 In general, the dying declaration may prop-
erly cover whatever the declarant might legally have stated as a witness, 88 and
nothing further. 89 Primarily, it should cover the res gestae of the fatal en-
counter, " using the very elastic Latin term not in the extended American sense
but in its English or restricted meaning. The extrajudicial statement should
not be so extended as to include facts remotely 91 or only incidentally 92 con-
nected with the main occurrence. 93 Within the proper meaning of the phrase
may be included any relevant facts, preliminary or subsequent, which have a
causal relation to the happening of the res gestae. 94 The declaration may
include such facts as tend to explain the res gestae 95 but not the effects of the
crime. 90 The statement if essentially one of fact may take the form of infer-
ence 97 and the declarant may even be allowed to state that the accused " poi-
soned " him. 98 The emotions of the declarant must be excluded 99 but the
identification of the person who did the killing is one of the most valuable
offices of a dying declaration. 1 The declaration must not contain inference
614 (1845); State v. Belcher, 13 S. C. 459
(1880).
85. People v. Beverly, 108 Mich. 509, 66 N.
W. 379 (1896).
86. State v. Pearce, 56 Minn. 226, 57 N. W.
652, 1065, affirmed 56 Minn. 226, 57 N. W.
1065 (1894).
87. 4 Chamberlayne, Evidence, 2849-
2857.
88. Tibbs v. Com., 138 Ky. 558. 128 S. W.
871, 28 L. R A. (X. S.) 65n. (1910).
89. People v. Smith, 172 N. Y. 210, 64 N.
E. 814 (1902).
90. State v. Wright, 112 Iowa 436, 445, 84
N \V. 541 (1900).
91. State v. Spivey. 191 Mo. 81, 90 S. W.
81 (1905); Wakefield v. State, 50 Tex. Cr.
App. 124, 94 S. W. 1046 (1906).
92. State v Horn, 204 Mo 528, 103 & W.
69 (1907) ; State v. Eddon, 8 Wash. 292, 36
Pac. 139 (1894) ( deceased unarmed ).
93. Nordgren v. People, 211 111. 425, 71 N.
E. 1042 (1904).
94. People v. Cyty. 11 Cal. App. 702, 106
Pac. 257 (1909). Where a dying declaration
is introduced by the State it is error to limit
an admission in it that the deceased had
threatened the defendant to its use as im-
peaching the dying declaration. This is itself
a dying declaration which the defendant can
use. Tittle v. State, 188 Ala. 46, 66 So. 10,
52 L. R. A. (N. S.) 910 (1914).
95. People v. Glover, 141 Cal. 233, 74 Pac.
745 (1903) ; State v. Betsch, 43 S. C. 132, 20
S. E. 993 (1895).
96. Johnson v. State, 63 Miss. 313 (1885).
97. Pennington v. Com., 68 S. W. 451, 24
Ky. L. Rep. 321 (1902); Luker v. Com., 5
S. W. 354, 9 Ky. L. Rep. 385 (1887) (he and
defendant had no difficulty).
98. Copeland v. State, 58 Fla 26, 50 So.
621 (1909) ; Shankenberger v. State. 154 Tnd.
630, 57 N. E. 519 (1900) ("poisoned by my
mother-in-law"): State v. Kuhn, 117 Iowa
216, 90 N. W. 733 (1902) ; Lipscomb v. State,
75 Miss. 559, 23 So. 210. 230 (1898)
Contra: Berry v State, 63 Ark. 382, 38 S.
W. 1038 (1897) (whiskey was poisoned);
Mathedy v. Com., 19 S. W 977, 14 Ky. L.
Rep. 182 (1892): Orner v. State (Tex. Cr.
App. 1912) , 143 S. W. 935) . A dying declara-
tion to the effect that the defendant had killed
him " on purpose " is admissible although ob-
jected to on the ground that it is opinion
evidence Pippin v Commonwealth, 117 Va.
919. 86 S. E. 152 (1915).
99. State v. Evans. 124 Mo. 397, 28 S. W.
8 (1894) (forgiveness).
1. People v. Madas, 201 N. Y. 349, 94 N. E.
857 (1911).
699 WEIGHT. 909
or the use of reasoning. 2 The declaration may summarize various phenomena
and state them as a collective fact 3 as the absence of provocation 4 or may
state psychological facts 5 as the belief of the declarant when an ordinary
witness would have been permitted to do so 7 but facts occurring before the
res gestae of the killing itself cannot be included.* Where the statement con-
tains some valid and some immaterial evidence its admission may depend on
whether it seems necessary. 1 *
909. Weight for the Jury, 10 The preliminary ruling of the judge admit-
ting the dying declaration goes no farther than to decide that the jury may
rationally conside,r it as evidence. 11 What probative force it shall have in
deciding the issues raised in the case is absolutely for them to determine. 12
In deciding as to its credibility the jury should consider all the evidence in
the case, including any which may have come to their attention during the
preliminary hearing on voif dire. 13 The credit which the jury may be dis-
posed to give may properly vary as they regard a dying declaration as being
one of fact, on the one hand, or as stating opinion or inference on the other. 14
So, as to whether a dying declaration has been voluntarily made, or was ex-
torted by duress 15 is a question for them. As to the presence of a sense of
impending death, the jury may find that it does or does not exist. 16 To assume,
in instructions, therefore, that the statements admitted are, in fact, dying
declarations, has been said to be error. 17 Even should the jury be convinced
that the utterances placed before them are properly entitled to the legal status
of dying declarations, they are by no means constrained to credit them. They
may believe that the declarant has spoken the truth and so credit his state-
2. People v. Alexander, 161 Mich 645, 126 9. Collins v. Com., 12 Bush (Ky.) 271
X. W. 837 (1910). (1876).
3. Com. v. Matthews, 89 Ky. 287, 12 S. W. 10. 4 Chamberlayne, Evidence, 2858.
333, 11 Ky. L. Rep. 505 (18S9). 11. Com v. Roberts, 108 Mass. 296 (1871).
4. Washington v. State, 137 Ga. 218. 73 S. 12. Meno v. State, 117 Md. 435, 83 Atl.
E. 512 (1911) ("he shot me for nothing"). 759 (1912) ( sufficient intelligence ).
5. The government cannot show, as part of 13. People v. White, 251 111. 67, 95 N E.
its original case, that the accused had threat- 1036 (1911): Gurley v. State (Miss. 1912),
ened violence against the deceased State v. 57 So. 565; State v. Gow. 235 Mo. 307, 138
Perigo. 80 Iowa 37. 45 X. W. 39(1 (1800); S. W. 648 (1911): Jackson v. State, 55 Tex.
Hackett v. People, 54 Barb. 370 (1866). Cr. App. 79, 115 S. W. 262, 131 Am. St. Rep.
Vermont. State v. Wood, 53 Vt. 560 792 (1908).
(1881). 14. State v. Washington. 13 S. C. 453
Washington. State v. Moody, 18 Wash., (1880): State v. Quick, 15 Rich. L. (S. C.)
165, 51 Pac. 35fi (1897) 342 (1867).
6. Doolin v Com.. 95 Ky. 29. 23 S. W. 663. 15. Jackson v. State, 55 Tex. Cr. App. 79,
15 Ky. L. Rep. 408 (1893). 115 S. W. 262, 139 Am. St. Rep. 792 (1908)
7. People v. Conklin, 175 X. Y. 333. 67 (abortion).
X. E. 624 (1903). 16. California. People v. Thomson, 145
8. People v. Alexander, 161 Mich 645, 126 Cal. 717, 79 Pac. 435 (1905).
X. W. 837, 17 Detroit Leg. X. 408 (1910): 17. People v. Thomson, 145 Cal. 717, 79
Still v. State, 126 Tenn. 80, 140 S. W. 298 Pac. 435 (1905).
(1911).
910-U12 DYING DECLARATIONS. 700
ment, although they fail to find that he spoke with a sense of impending
death l8 and they may, on the other hand, disbelieve his utterance, though
made in expectation of immediate dissolution.
910. [Weight for the Jury] ; A discredited Rule. 19 The administrative
treatment judicially accorded to the admission of this exception to the hearsay
rule as secondary evidence of the facts asserted is intelligible only upon the
theory that the rule which admits it is a discredited one. It is both too strictly
and too loosely construed. Since the ground for receiving the statement is
that of necessity, its reception, upon sound administrative principles, should
end when the necessity no longer exists. Yet even where the government is
able to prove a perfect case by direct evidence, the dying declaration continues
to be received. Such declarations are not always fair to the accused as usually
made by one surrounded by his friends with a natural desire to exculpate
himself 20 and therefore the prosecution is allowed to corroborate them by
showing prior consistent statements by the declarant 21 and will give the
accused the widest latitude in his defence. 22
911. [Weight for the Jury] ; Impeachment. 23 The declarant in a dying
declaration may be impeached in any manner which would be proper in case
of a witness. 24 This may be done by disproving the statements of the declara-
tion 25 or showing inconsistent statements 26 of the declarant or that he has
a bad moral character 27 or is irreligious. 28
912. [Weight for the Jury] ; Mental state of Declarant. 29 To enable them
properly to judge of the probative force of a dying declaration, the jury are
entitled to be fully informed of the circumstances under which it was made. 30
Prominent among these is the mental condition of the declarant. 31 This they
are entitled to view from all angles, reaching a conviction of their own as to an
actual sense of impending death experienced by the declarant at the time of
18. See Donnelly v. State, 26 N. J. L. 463, 26. Carver v. United States. 164 U. S. 694,
affirmed 26 N. J L. 601 (1857). 17 Sup. Ct. 228, 41 L. ed. 602 (1897).
19. 4 Chamberlayne, Evidence, 2859- 27. Xordgren v People, 211 111. 425, 71
2864. N. E. 1042 (1904).
20. Lipscomb v. State, 75 Miss 559, 580, 28. Kesbit v. State, 43 Ga. 238 ( 1871 ) ;
23 So. 210 (1897) (the mind of the declar- State v. Elliott, 45 Iowa 486 (1877): Gam-
ant may be impaired or confused). brell v State. 92 Miss. 728, 46 So. 138, 17 L.
21. State v. Craine, 120 N. C. 601, 27 S. E. R. A. (N. S.) 291, 131 Am. St. Rep. 549
72 (1897) (affidavit). (1908).
22. Com. v Roberts, 108 Mass. 296 (1871). 29. 4 Chamberlayne, Evidence, 2867.
23. 4 Chamberlayne, Evidence, 2864- 30. State v. Doris, 51 Ore<r. 136. 94 Pac.
2866. 44, 16 L. R A. (X. S.) 660 n. (1908) : State
24. Carver v. U. S., 164 U. S. 694, 17 Sup. v. Crawford, 31 Wash. 260, 71 Pac. 1030
Ct. 228, 41 L ed. 602 (1896). (1903).
25. White v. State, 30 T<?x. App. 652, 18 31. Allen v. Com., 134 Ky. 10, 119 S. W.
S. W 462 (1892). 795 (1000) (rational); Hunter v. State, 59
Tex. Cr. App. 439, 129 S. W. 125 (1910).
701 WEIGHT. 913
making his statement and its influence over him in inhibiting falsehood. 32
Evidence should be received as to the memory 33 or sanity 34 of the declarant.
913. [Weight for the Jury] ; Rule Constitutional. 35 That the admissibility
of dying declarations is not in violation 3:> of the right of confrontation fre;
quently secured to all persons on trial by express constitutional provisions is
well settled. 36
32. State v. Yee Gueng, 57 Oreg. 509, 112 34. Guest v. State, 96 Miss. 871, 52 So.
Pac. 424 (1910). 211 (1910).
33. Mockabee v. Com., 78 Ky. 380 ( 1880) ; 35. 4 Chamberlayne, Evidence, 2868,
Brown v. State, 32 Miss. 433 (1856); Vass' 2869.
Case, 3 Leigh (Va.) 786, 24 Am. Dec. 695 36. People v. Corey, 157 N. Y. 332, 51 N. E.
(1831). 1024 (1898).
CHAPTER XLII.
HEARSAY AS SECONDARY EVIDENCE; ENTRIES IN COURSE OF BUSINESS.
Declarations in course of business, 914.
English rule, 915.
American rule, 916.
Administrative requirements; necessity, 917.
subjective relevancy; adequate knowledge, 918.
absence of controlling motive to misrepresent, 919.
contemporaneousness required, 920.
regularity, 921.
Form of statement, 922.
written, 923.
Nature of occupation, 924.
914. Declarations in Course of Business. 1 Another exception to the hearsay
rule which substantive law has placed at the service of judicial administration
in its effort to elicit truth is that which admits, as proof of the facts asserted,
oral declarations or written entries made by deceased persons in the usual
course of professional or official business, or in discharge of some duty. 2
Relevancy of Regularity. At the present day the chief importance of the
exception to the hearsay rule under consideration is a historical one. To-
gether with the rule relating to shop books, it constitutes one of the confluent
currents of authority which have blended under the influence of modern con-
ditions into the broad general principle of the Relevancy of Regularity. This
may broadly be defined as a judicial recognition of the probative force as pri-
mary evidence of hearsay statements contemporaneously made in the regular
course of private or official duty or business by one having no motive to mis-
represent. This principle is perhaps most firmly established in legislative
enactments passed in most jurisdictions of the English-speaking world.
915. English Rule. 3 In connection with the present exception, the rule
early established in England presents points of difference to that later formu-
lated in the United States. The present " exception." as it is called, to the
hearsay rule, as established in England has been spoken of as covering all
1. 4 Chamherlayne, Evidence, 2870. admissible evidence of the acts and matters
2. " \Ye think it a safe principle, that mem- so done" Nicholls v Webb. 8 Wheat (U.
oranduras made by a person in the ordinary S. ) 326, 337. 5 L. ed. 326 (1823). per Mr
course of his business, of acts or matters Justice Story.
which his duty in such business requires him 3. 4 Chamberlayne, Evidence, 2871-
to do for others, in case of his death, are 2875.
702
703 AMERICAN RULE. 916,917
entries " made by a person since deceased, in the ordinary course of his busi-
ness," 4 " in the usual course or routine of business," 6 " in the exercise of his
business and duty " 6 and in other similar expressions. 7 In this connection,
it is not material whether the entrant is a party, the clerk of a party, or a
stranger to the proceedings in which the evidence is offered. The distinction
between the English and the American rule is that in England the declarant
must not only have made the entry in the course of business but also in dis-
charge of his duty 8 which must not be self-imposed. 9 The duty must be to
make the entry at the exact time when it was actually recorded. 10 A further
peculiarity of the English rule is that it cannot be invoked for the proof of
collateral facts mentioned in the entry. 11
916. American Kule. 12 The requirement that the declarant should not
only be acting in the course of his duty or business in doing the very act stated
but it should also be a duty imposed upon him by some superior authority to
make an entry of it at the exact time when it was made, does not obtain in the
United States. It is, on the contrary, sufficient if the making of an entry or
the doing of the act was a natural and usual accompaniment of the doing of
the act itself in case either of a private individual, 13 or of a public official. 14
Under the American rule, though not pursuant to the English, a contemporane-
ous entry regularly made in the course of private or official business will be
received not only as evidence of the facts directly asserted, for the sake of
stating which the declaration may fairly be regarded as having been made,
but also of those collaterally or, as it were, incidentally, mentioned. Indeed,
any fact which the declarant is proved to have known or which can fairly be
assumed to have been within his knowledge 15 may, if stated by him under
the conditions prescribed by the rule be evidence, after his decease 'or when
he is unavailable as a witness, in proof of the facts asserted.
917. Administrative Requirements; Necessity. 16 The conditions of admis-
sibility for this species of evidence, originally administrative in their nature,
4. Doe v. Turford, 3 B. & Ad 800 (1832). 11. Chambers v Bernasconi, 1 Cromp. M.
To the same effect, see Rawlins v. Riokards, & R. 347, 368, 1 Cromp & J. 451 (1831), per
28 Beav. 370. 373 (1860). Denman, C. J.
5. Poole v Dicas, 1 Bing. X C. 649 (1835), 12.4 Chamberlayne, Evidence. 2876,
per Tindal. C J. 2877.
6. Rawlins v Rickards. 28 Beav. 370.. 373 13. Fishery Mayor, 67 X. Y 73. 77 (1876).
(1860), per Homilly, M. R 14. Little v. Downing. 37 X. H. 355, 364
7. Mercer v. Denne i Eng 1905), 74 Law J. (1858).
Ch. 723 [Ifl05] 2 Ch. 538. 03 Law T. 412, 3 15. Massee-Felton Lumber Company v. Sir-
Local Gov R. 1203. 21 Times Law R. 760 man?. 122 C,a 207. 50 S. E. 02 (1005).
8. Smith v. Blakey. L. R 2 Q B. 326. 333 Contra: Estate of Ward. 73 Mich. 220. 225,
(1867) : Canada C. R. Co. v. McLaren, 8 Ont. 41 X W 431 ilSSOK per Campbell. ,T. : Sitler
App. 564 (1883). v. C.ehr. 105 Pa. St. 577. 600. 51 Am Rep.
9. R. v. Worth, 4 Q. B. 132 (1843). 207 (1884).
10. Polini v. Gray, L. R. 12 Ch. D. 411 16. 4 Chamberlayne, Evidence, 2878-
(1879). 2883.
j; :18 ENTRIES IN COURSE OF BUSINESS. 704
but at present largely procedura 1 in character, are those customary in case of
am- species of secondary evidence Necessity and Relevancy. Absence of the
witness from the jurisdiction, 17 his death 18 or sickness ltf and even the prac-
tical inconvenience of withdrawing from business many persons to prove small
items 20 are ordinarilly deemed a sufficient necessity for the introduction of
this evidence.
918. [Administrative Requirements]; Subjective Relevancy; Adequate
Knowledge. 21 For the subjective relevancy of the extrajudicial statement
made in the course of business and its consequent admissibility, it is essential
that the declarant be shown or reasonably assumed to have been possessed of
such adequate knowledge on the subject as to make his declaration helpful to
the jury. 22 Should several persons possess individual knowledge covering the
separate parts of a transaction which forms the subject of a given entry, the
evidence of all such persons will be required in certain jurisdictions. Where
its effect is to establish a complete chain of proof as to the existence of the fact
in question, the judicial or extrajudicial statements of all the persons involved
are to be submitted to the court, 23 any break in the line of proof being fatal
to the admissibility of the remainder. Should A. testify to the existence of a
fact, and that he correctly reported it to B., B.'s entry, in the usual course of
business, is admissible in connection with A.'s testimony, although B. is not
shown to have possessed any independent knowledge on the subject. 24 On
the other hand, by certain authorities, it has been held unnecessary to call any
witness other than the entrant. In these jurisdictions, testimony by the
entrant that he received the report upon which he has acted, in the regular
course of business, will, if reinforced by evidence of the entrants having entered
the fact correctly, admit the book as evidence of the facts stated in the entry. 25
It is felt by many courts that in a multiplicity of small transactions, the exist-
once of a contemporaneous record is far more cogent in compelling belief than
the memory of the witness could possibly be and therefore that the books should
be regarded as the best evidence of the facts. 26
17. Cameron Lumber Co. v Somerville. 129 (1806) ; Dohmen Co. v. X. F. Ins. Co., 96 Wis.
Mieh. 552, 89 X. W. 346 (1902) . 38, 71 X. W. 69 (1897).
18. Culver v. Marks, 122 Ind. 554. 23 N. E. 21. 4 Chamberlayne, Evidence, 2884-
1086. 7 L. R A. 489, 17 Am. St. Rep. 377, 2887.
5T>2 (1889). 22. Leask v. Hoajrland, 205 X. Y. 171, 98
19. Heattie v. Mo.Mullen. 82 Cm- -1*4. 74 X. E 395 (1912).
Atl. 767 i 1909) ; Rridfjexvater v. !N> I -.iry, ">4 23. Cameron Lumber Co. v. Somerville. 129
Conn. 217, 6 Atl. 415 (1886) ; Union Bank v. Mich. 552, 89 X. W. 346 (1902).
Knapp, 3 Pick. (Mass.) 96. 15 Am. Dec. 181 24. Mayor, etc.. of X. Y. v. Second Ave.
(1825) ; Chaffee v U. S., 18 Wall. ( t" S.) R. R. Co.. 102 X Y. 572. 7 X. E. 905, 55 Am.
516,541,21 L. ed. 908 (1873). Rep. 839 (1886).
20. Schaefer v. Georgia R. R. Co., 66 Oa. 25. Architects & Builders v. Stewart, 68
39, 43 (1880) ; Fielder Bros. & Co. v. Collier. \V. Y a . 506. 508, 50 So. 166. 36 L. R. A. (X.
13 Ga. 495, 499 (1853) ; Chisholm v. Beaman S.) 899n (1911).
Machine Co., 160 Til. 101, 43 X. E. 796 26. Mississippi River Lodging Co. v. Rob-
70.~> MOTIVE TO MISREPRESENT. 919-921
919. [Administrative Requirements] ; Absence of Controlling Motive to Mis-
represent. 27 As in case of all statements, judicial or extra judicial, it is re-
quired in the event of their use as secondary evidence of the facts asserted,
not only that the declarant was possessed of adequate knowledge but that he
was free from controlling motive to misrepresent. 28 This lack of motive to
misrepresent, upon which the subjective relevancy of the evidence is based, is
taken or assumed to be established by the automatism of habit, the regular
doing of an act where the declarant has no motive to misrepresent but has every
reason, in discharge of his business, professional, or official duty, to assert
the truth. So strong is the probative force of an automatic habitual state-
ment that it is by no means insisted by judicial administration that the extra-
judicial declaration in course of business should be against the interest of the
declarant. On the cont^ry. such utterances may properly be admitted, al-
though distinctly self-serving. 29
920. [Administrative Requirements] ; Contemporaneousness Required. 30
Judicial administration, whose work has been hardened by the doctrine of
stare decisis into the procedural requirements of the rule under consideration,
demands not only that the entry or declaration should have been made in the
regular course of business or official duty, but also that it should have been
customary to make these declarations or entries substantially contemporaneous
with the happening of the events to which they refer. 31
Absolute contemporaneousness is, naturally, not required. It is sufficient if
the statement be made at practically or substantially the same time as the
act is done. 32
921. [Administrative Requirements] ; Regularity. 33 It is recognized that
the duty of keeping books is entirely inconsistent with any attempt to record
error as anything less than accuracy involves a large amount of trouble for the
bookkeeper. 34 Affirmative proof should be offered that the books are regularly
and accurately kept. 35 Declarations in course of business should be carefully
distinguished from mere memoranda not kept regularly or in course of duty. 36
son, 69 Fed. 773, 782, 16 C. C. A. 400 ( 1S95) ; 32. R. R. Co. v. Henderson, 57 Ark. 402, 415
Continental Xat. Bank v. First Nat. Bank, (1893); Kennedy v. Doyle, 10 Allen (Mass.)
108 Tenn. 374, 68 S. W. 497 (1902). 161 (1865) ; Chaffee v. U. S., 18 Wall. (U.
27. 4 Chamberlayne, Evidence, 2888, S.) 516. 541, 21 L. ed. 908 (1873).
2SS9. 33. 4 Chamberlayne. Evidence, 2893-
28. Lassone v. B. & L. R. Co., 60 X. H. 2896.
345, 354. 24 Atl. 902. 17 L. R. A. 525 (1890). 34. Poole v. Dicas, 1 Bing. X. C. 649, 653
29. Bland v. Warren, 65 X. C. 372, 373, 374 (1835).
(1871). 35. Patterson & Co. v. Gulf, etc., Ry. Co.
30. 4 Chamberlayne, Evidence, 2890- (Tex. Civ. App. 1910), 126 S. W. 336.
2892. 36. Lassone v. Boston & Lowell R. Co., 66
31. :VfcKni<rht v. Newell, 207 Pa. St. 562, 57 N. H. 345, 358, 24 Atl. 902, 17 L. R. A. 525
Atl. 39 (1904). (1890).
922, 923 ENTKIES IN COURSE OF BUSINESS. 706
The fact that no entry at all appears where one should had the transaction taken
place is a negative fact from which an inference may be made. 37
922. Form of Statement; Oral. 38 The form of statement is important on
the question of weight rather than on that of admissibility where the other
conditions exist for receiving the evidence. With the exceptions hereafter to
be noticed, the declaration in course of business may properly be oral as well
as in any written form. The admissibility of the oral declaration, e.g., the
report of a constable, 30 is well established in England. 40 The application of
the rule to oral statements is not, however, frequently referred to in the Ameri-
can cases; 41 though there is no apparent reason for making any distinction
between oral and written statements in this connection. 42 In mercantile and
business houses oral reports are regularly made and a duty undoubtedly exists
for making them and with correctness. No element of trustworthiness is,
therefore, lacking.
923. [Form of Statement] ; Written. 43 Among the more frequently used
forms of making written declarations in regular course of business are book
entries, endorsements, official registers, reports and the like. Naturally, the
carefully kept books of account where the item in question is intimately woven
into the " warp and woof " of a day's business stand in a somewhat different
probative position from endorsements on separate and often fugitive sheets
of paper or even from a loosely kept baptismal record. Any form of written
statement which is intelligible or interpretable is, however, competent 44 if
made under the required conditions. Such entries are commonly made in
account books 45 and are admissible when the entry is proved to be the work of
the person by whom it purports to be made as where it is shown to be in his
handwriting. 4 ' 3 The book itself must be produced. 47 The statement may
take the form of endorsements on notes 48 or other w r ritten memoranda 49 or
reports. r '
37. State v. McCormick, 57 Kan. 440, 46 44. North Bank v. Abbot, 13 Pick. (Mass.)
Pac. 777, 57 Am St Rep. 341 (1S96); Bas- 465, 471, 25 Am. Dec. 334 (1883).
trop State Bank v. Levy, 106 La. 586, 31 45. Kibbe v. Bancroft, 77 111 18 (1875).
So 164 (1901) 46. Welsh v. Barrett. 15 Mass 380 (1819);
38. 4 Chamberlayne. Evidence, 2897. Ohaffee v. U. S, 18 Wall (U. S. ) 516, 541,
39. K. v. Buckley, 13 Cox Cr. C. 293 (1873). 21 L. ed 908 (1873). Only the original
40. A declaration by word of mouth or by entry is provable in this way. St. L, etc., R.
writing made in the course of the business Co. v. Henderson, 57 Ark 402. 21 S. W.
are alike admitted. Sussex Peerage Case, 11 878 (1893) ; Cresswell v. Slack. 6* Towa 110,
Cl. & F. 85, 113 (1844), per Lord Campbell. 26 N. W 42 (1885) ; James v Wharton, 13
41. Fennerstein's Champagne, 3 Wall. (U. Fed. Cas. Xo. 7,187. 3 McLean (U. S. ) 492
S.) 145, 18 L. ed. 121 (1865). (1844). See also 2901.
42. Western Maryland Co v Manro, 32 Md. 47. New Jersey Zinc & I. Co. v. Lehigh
2HO, 283 (1870): McNair v. Nat, Life Tns. Zinc & ] Co., 59 N. J. L. 189, 35 Atl. 915
Co., 13 Hun (N. Y.) 144 (1878) (statement (1896).
of physician as to cause of death). 48. Lilly v. Larkin. 66 Ala. 110 (1880).
43. 4 Chamberlayne, Evidence, 2898- 49. Walker v. Curtis, 116 Mass. 98, 101
2904. (1874).
70^
XATUEE OF OCCUPATION.
924
924. Nature of Occupation. 51 N limitation or restriction has been placed
as to the nature of the occupation to which the rule admitting declarations of
deceased persons in the course of business shall apply. Any line of human
activity, professional or lay, in which work is done and a record of it regularly
kept, whether voluntary or under requirement of law, is within the rule, as
formulated in America. It covers any form of commercial business 52 or
mechanical 53 or professional 54 work or even the service of process by officers. 55
50. Culver v. Alabama M. R. Co., 108 Ala.
330, 18 So. 827 (1895).
51. 4 Chamberlayne, Evidence, 2905-
2909.
52. Sasscer v. Farmers' Bank, 4 Md. 409
(1853) : Halliday v. Martinet, 20 Johns. (X.
Y.) 16S, 11 Am Dec. 262 (1822^ ; Roberts v.
Rice, 69 N. H. 472, 45 Atl. 237 { 1898) ; Perk-
ins v. Augusta Ins. & B. Co., 10 Gray (Mass.)
312, 324, 71 Am. Dec. 654 (1858).
53. Dickens v. Winters, 169 Pa. St. 126,
135, 32 Atl. 289 (1895).
54. Bridgewater v. Roxbury, 54 Conn. 213,
6 Atl. 415 (1886).
55. R. v. Cope, 7 C. & P. 720 (1835).
CHAPTER XLIII.
HEARSAY AS SECONDARY EVIDENCE; DECLARATIONS CONCERNING PEDIGREE.
The pedigree exception, 925.
Rule stated; unsworn statements as to pedigree, 926.
Administrative requirements; necessity; general and special, 927.
relevancy, 928.
validity of document not demanded, 929.
issue must be one of genealogy, 930.
Scope of rule; facts directly asserted, 931.
facts incidentally asserted; relationship, 932.
Form of statement, 933.
composite; reputation, 934.
tradition, 935.
individual, 936.
Circumstantial proof of pedigree, 937.
Proof by acquiescence in case of pedigree, 938.
Animal pedigree, 939.
Scope of circumstantial evidence in case of pedigree, 940.
birth, 941.
death, 942.
marriage, 943.
names, 944.
race, 945.
relationship, 946.
residence, 947.
status, 948.
925. The Pedigree Exception. 1 The family is looked upon by judicial
administration as a miniature community. In case of the general community
the interest of the inhabitants affected by the matter in question to reach the
truth and the guaranty of trustworthiness which results from the general dis-
cussion concerning so interesting a topic is regarded as insuring a satisfactory
degree of probative force. So in the smaller circle of the family, the self-
interest of the members to reach the truth, the mutual correction implied in
family discussions of topics relating to the common interest are thought to be
safely trusted to promote justice. 2
1. 4 Chamberlayne, Evidence, 2fllO. ily affairs, when no special reason for bias
2. " This rule rests upon the principle that or passion exists, are fairly trustworthy, and
natural effusions of those who talk over fam- should be given weight by judges and juries,
708
709
RULE STATED.
; 926,927
926. Bule Stated; Unsworn Statements as to Pedigree. 3 The unsworn
statement of a deceased 4 member of the family 5 or of the husband or wife
of such member will, under certain minor conditions, be received, as an
exception to the rule against the admission of hearsay 6 in proof of the facts
directly 7 or incidentally asserted as to pedigree. 8 The declarations of the
party concerning whom a pedigree fact is sought to be established are admissible
under the same conditions as those of any other member of the family. 9
Necessity that the relationship of declarant be legitimate. That an illegiti-
mate member of a family is not a competent declarant of genealogical facts
concerning the family was held in an early English case and seems never to
have been directly questioned. 10
927. Administrative Requirements ; Necessity; General and Special. 11 As to
the necessity for receiving the evidence it will be required by judicial ad-
ministration that a reason, satisfactory to the presiding judge, be shown as to
why the primary evidence, the testimony of the declarant, is not produced; 12
as they are in the ordinary affairs of life."
Gorham v. Settegast, 44 Tex. Civ. App 254,
262, 98 S. W. 665 (1906), per Neill, J. As
to pedigree See note, Bender, ed., 126 N. Y.
568
3. 4 Chamberlayne, Evidence. 2911.
4. In re Hurlburt, 68 Vt. 366, 35 Atl. 77, 35
L R. A. 794 (1895).
5. It is only necessary to show that a
declarant, since deceased, was a member of a
family to which it is sought to attach a third
person, to render proofs of the statements
of the declarant with respect to the pedigree
of the third person admissible in evidence.
Scheidegger v. Terrell, 149 Ala. 338, 43 So.
26 (1906 ) . 1 f it is not shown that a declara-
tion was made by a member of the family
it will be excluded. Northern Pacific R. Co.
v. King, 181 Fed. 913, 104 C. C A 351
(1910).
Pedigree. Declarations concerning pedi-
gree must be made by one who is related
by blood or affinity to the family of which he
speaks But this cannot be shown by hear-
say in the declaration itself but must be
proved by some evidence independent of the
declaration itself. So the declaration of a de-
ceased person cannot be admitted simply he-
cause the declaration contains the statement
that the declarant is a member of the family
in question as told to the declarant by a
member of the family. Aalholm v. People,
211 X. Y 406, 105 X* E. 647. L. R. A. 1915
D 215 (1914)
6. State v. McDonald, 55 Oregon 419, 104
Pac. 967 (1909), rehearing denied 106 Pac.
444 (1910) (statute).
7. Malone v Adams, 113 Ga. 791, 39 S. E.
507, 84 Am. St. Rep. 259 (1901).
8. " The phrase, ' pedigree,' embraces not
only descent and relationship, but also the
facts of birth, marriage and death, and the
times when these events happened." Kelly v.
McGuire, 15 Ark. 555. 604 (185), per Hemp-
stead, ,J.
9. Harvick v. Modern Woodmen of America,
158 111. App. 570 (1910); Taylor v Grand
Lodge A. O. U. W., 101 Minn. 72, 111 X. W.
919, 11 L. R. A. (X. S.) 92n, 118 Am.
St. Rep 606 (1907). Compare Doe v. Ford,
3 U. C. Q B. 352 (1847).
10. Bamford v. Barton, 2 .M. & Rob. 28
(1837). In a jurisdiction having a statute
which gives an illegitimate child the right to
inherit from his father, it was proper, in an
action for partition, to admit evidence of dec-
larations of the alleged father of a claimant
in regard to his relationship with the latter
who claimed a share of the property as an
illegitimate son. Alston v. Alston, 114 Iowa
29, 86 X. W. 55 ( 1901 ) .
11. 4 Chamberlayne, Evidence, 2912,
2913.
12. When other evidence of the fact is at-
tainable, the extrajudicial statement will not,
it is said, be received Rogers v. De Bardele-
ben Coal, etc., Co, 97 Ala. 154, 12 So. 81
(1893); Covert v. Hertzog, 4 Pa. St. 145
(1846).-
928 PEDIGREE. 710
This necessity may be general or special, according as it applies to pedigree
evidence as a whole or in relation to the statements of a particular witness.
Should it appear that the proponent can establish the genealogical facts neces-
sary to the proof of his contention by the direct evidence of witnesses, the court,
as an administrative matter, may very properly decline to admit secondary
evidence in the form of hearsay declarations 13 as to pedigree, until, at least,
further proof rebutting the proponent's case is introduced. Thus, where wit-
nesses having adequate knowledge attend for the purpose of testifying to the
age of a given person, the record of his birth in a family Bible may properly
be rejected. 14 The recognized special necessity for receiving the extrajudicial
statement of a declarant in the pedigree declaration is that the latter has
deceased. 15 The fact of death must be proved to the satisfaction of the court,
although it may be inferred from lapse of time 16 or other relevant cir-
cumstances.
928. [Administrative Requirements] ; Relevancy. 17 Passing over the ob-
jective relevancy of a declaration concerning pedigree, as presenting no
peculiarity in this connection, objective relevancy being an absolute require-
ment in respect to evidence of evfery class, it may be appropriate to consider the
subjective relevancy of such statements, which requires that when they are
offered as proof of the f acts asserted the declarant be shown ( 1 ) to have
possessed adequate knowledge of the facts which he asserts, and (2) to have
been free from a controlling motive to misrepresent. The qualifications of
the declarant must be shown in advance by the proponent as a condition of
the admissibility of the declarations. 18 Of course, where the declarations
concern the declarant only, adequate knowledge need not be shown as an inde-
pendent fact, as it is axiomatic that a person may speak concerning himself. 19
It is generally assumed that a member of the family has adequate knowledge
concerning family history 2 " but the relationship of the declarant must be
established by evidence independent of the declaration itself. 21 The statement
need not however be contemporaneous with the event. 22 Intimate friends 23
or even old servants 24 or other members of the family 25 not relations do not
13. Wolf v Wilhelm (Tex. C'iv. App. 1912), 19. See Malone v Adams, 113 Oa 791, 39
146 S. W. 216 S. E .507 ;1901).
14. Bigliben v. State (Tex. Civ. App 1912). 20. Bernards Tp v T?edminster Tp. ( 74
151 S W 1044: Rowan v State. 57 Tex. Cr. X. -T. Law 92, 04 Atl. 9fiO (1906)
Rep. 625, 124 S W. 668 (1910). 21. Greene v. Almand, 1 1 1 Ga 735, 36 S. E.
15. Champion v. McCarthy, 228 111. 87, 81 957 -(1900): Doe v. Servos. 5 U. C. Q. B.
X E 808, 11 L R. A (X. S.) 1052n (1907) (O. S \ 284 (1849)
16. Mann v Cavanauph. 110 Ky 776. 62 22 Swift & Co v. Rennard, 119 111. App.
S W 854, 23 Ky Law Rep 238 (1901). 173 (1905)
17/4 Chamberlayne. Evidence, 2914- 23. Bridrer v. Huett. 2 F. &. F. 35 (I860)
2920. 24. Flora v Anderson. 75 Fed. 217 (1896)
18 Young v. Shulenberg, 165 X. Y. 385, 59 25. Chapman v. Chapman. 2 Conn. 347. 7
N. E. 135, 80 Am. St Rep 730 (1901). Am. Dec. 277 (1817) : Jackson v. Cooley, 8
Johns. (N. Y.) 128 (1811).
711 DOCUMENTS. 929,930
come within the rule. The extrajudieial statement as to pedigree may be
testified to by anyone who heard it. 26 The declaration should be made by one
with no controlling motive to misrepresent 27 and hence ante litem motam. 28
929. [Administrative Requirements] ; Validity of Documents not Demanded. 29
The instrument containing a pedigree statement need not itself be valid for
the purpose for which it was intended. The pedigree assertion contained in a
will or circumstantially employed as proof of pedigree may be equally effective,
for example, although the will itself fail of operation. 30 The essential re-
quirement is that the pedigree assertion should be identified as having been
made by a competent declarant.
930. [Administrative Requirements] ; Issue Must be One of Genealogy. 31
In many jurisdictions, it seems to be a fairly well established rule that, in order
that hearsay evidence may be admitted under the pedigree exception, it is
essential that the issue upon which the testimony is offered be one of gene-
alogy. 32 The courts in some jurisdictions maintain a less restricted view of
the administrative position of pedigree declarations, relying upon the general
principle upon which extrajudieial statements are admitted as an exception to
the hearsay rule. In such jurisdictions, declarations of genealogical facts,
including facts of family history incidental thereto, are admitted in evidence
upon compliance with the administrative requirements without regard to the
nature of the issue of the case in which they are offered. 33 In settlement
cases, an attempt was made in the early English decisions to establish the
admissibility of the statements of a deceased pauper as to his place of birth
and residence. It was thought that this might, be done as part of the excep-
tion relating to pedigree and a favorable ruling was actually made, although
by an equally divided court. 34 Later, this case was overruled, the doctrine
remaining settled since that time that the declarations of a pauper 35 or member
of his family 36 will not be received after their decease regarding the place
26. Arents v. Long Island R. Co, 156 N 43 (1896): In re Lambert, 56 L. J Ch. 122,56
Y. 1, 50 X E. 422 (1808). L. T. Rep. X S. 15 (1886).
27. In re McClellan's Estate, 20 S. D 498. 31. 4 Chamberlayne, Evidence. 2922-
107 X. W. 681 (1906) 2927.
28. Xorthrop v. Hale. 76 Me. 306, 49 Am 32. People v. Mayne, 118 Cal 516. 50 Pac
Rep. 615 (1884). For a statement to have 654. 62 Am. St. Rep 256 (IS!)?): Bowen v.
been made ante litem motam within the mean- Preferred Ace. Ins. Co., 74 X. V Suppl 10),
ing of the rule judicial administration re- 6S App Div. .342 i 19021
quires that it must not only have been made 33. In re Fhirlburt's Est.. 6S Vt. 366. 35
before an action was started, but before any Atl. 77, 35 L. R A 794 (1895).
controversy or prospect of controversy arose 34. Rex v. Eriswell, 3 T R 70" (1790).
Rollins v. \Yicker, 154 X. C. 559, 70 S. E 35. Rex v. Ferry Frystone. 2 East 54
934 (1911) M801)
29. 4 Chamberlayne, Evidence, 2921 36. Greenfield v. Camden. 74 Me. 56
30. Jennings v. Webb, 8 App. Cas. (D. C.) (1882). Londonderry v. Andover, 28 Vt 416
(1856).
931, 932
PEDIGEEE.
712
of birth 37 or residence of the pauper. 38 The rule is the same whether the
declarations are oral or written. 39
931. Scope of Rule; Facts Directly Asserted. 40 The immediate and primary
purpose of an extra judicial declaration, admissible under the present rule as
secondary evidence of the truth of its assertions, is to state a fact of pedigree. 41
The fact may be age, 42 birth, 43 death, 44 identity, 45 marriage 4G or relation-
ship 47 or any of the steps or links constituting relationship. 48 The relation-
ship covered may be in the direct ascending line either by blood 49 or marriage 50
or in the direct descending 51 or collateral 52 line.
932. [Scope of Rule]; Facts Incidentally Asserted; Relationship. 53 An
extrajudicial statement relating to pedigree may furnish evidence not only
of facts directly asserted but as to those collaterally involved in the statement 54
or of those which may reasonably be implied or inferred from it. 55 Thus, the
dates 50 at which- or the places 57 where facts of genealogical importance oc-
46. Eisenlord v. Clum, 126 N. Y. 552, 27
N. E. 1024, 12 L. R. A. 836 (1891).
47. Alston v. Alston, 114 Iowa 29, 86 N.
W. 55 (1901).
48. Matter of Fails, 107 N. Y. Suppl. 224,
56 Misc. 217 (1907).
49. South Hampton v Fowler, 54 N. H. 197
(1874) : Brown v. Lazarus, 5 Tex. Civ. App.
81, 25 S. W. 71 (1893).
50. Jewell v. Jewell. 1 How. (U. S ) 219,
11 L. ed. 108 (1843).
51. Arents v. Long Island R. Co., 156 N.
Y. 1, 50 N. E. 422 (1898).
52. California. Taylor v McCowen, 154
Cal. 798, 99 Pac. 351 (1909) (statute).
53. 4 Chamberlayne, Evidence, 2939.
54. Kelly v. McGuire, 15 Ark. 555 (1855) ;
Morrill v. Foster, 33 1ST. H. 379 (1853);
Clements v. Hunt. 46 N. C. 400 (1854).
55. Wood v. Sawyer, 61 N. C. 251 (1867) ;
Viall v. Smith. 6 H. I. 417 (1860). Facts
not strictly those of pedigree may be so con-
nected with pedigree facts as to be provable in
the same way. Wall v. Lubbock (Tex. Civ.
App. 1900), 118 S W. 886
56. Maine. Northrop v. Hale, 76 Me. 306,
49 Am. Rep. 615 (1884).
MicJtiaan. Van Sickle v. Gibson, 40 Mich.
170 (1379).
New Hampshire. Morrill v. Foster, 33 N.
H. 379 (1856)
57. Jackson v. Boneham, 15 John (N Y.)
227 (1818) ; Hammond v. Noble. 57 Vt. 193,
203 (1804) ; Rishton v. Nesbitt, 2 M. & Rob.
554 (1844).
37. Connecticut. Union v. Plainfleld, 39
Conn. 563 (1873) (father).
Maine. Greenfield v. Camden, 74 Me. 56
(1882).
38. Braintree v. Hingham, 1 Pick. (Mass.)
245 (1822) ; Londonderry v. Andover, 28 Vt.
416 (1856); Rex v. Frystone, 2 East 54
( 1801 ) ; Rex v. Chadderton, 2 East 27 ( 1801 )
Records, belonging to a town which is a
party to the suit, bearing upon the question
of the residence of the pauper's ancestry, are
competent : they are part of the res gestae
and partake of the character of declarations
made by the town. Greenfield v Camden, 74
Me. 56 '(1882).
39. Rex v. Ferry Frystone, 2 East 54
(1801).
40. 4 Chamberlayne, Evidence, 2928-
2938.
41. The rule allowing hearsay evidence on
the issue of pedigree cannot be invoked to
show the source of money which it is alleged
was received by one member of a family from
another member Bi^pham v. Turner, S3 Ark.
331, 103 S. W. 1135 (1907).
42. .Yen- Jersey. Hancock v. Supreme
Council Catholic Benev Legion, 67 N. J Law
614, 52 Atl. 301, 69 N. J. Law 308, 55 Atl.
246 (1002).
43. American L. Ins., etc., Co. Y. Rosenagle,
77 Pa S't 507 (1875)
44. Dawson v. Mayall, 45 Minn. 408, 48
N. W 12 (1891).
45. Malone v. Adams. 113 Ga. 791, 39 S.
E. 507, 84 Am. St. Rep. 259 ( 1901 ) .
713 FOBM. 933
curred may be included in an extrajudicial statement relating to pedigree. A
very considerable range of other incidental facts has been permitted to the
proponent. Thus, general facts relating to a particular branch of the family 58
as that they owned property 5i> may be given in evidence under the rule. So
the names," nationality 01 and residences 62 of particular members of the
family, their number, 63 as well as relationship to each other 04 and similar
facts G5 may be stated in such an extrajudicial declaration. While the fact
of membership in a given family cannot be satisfactorily proved by the unaided
extrajudicial statement of the person in question, 06 but must, on the contrary,
be established, in the absence of an admission, 07 by some evidence, either
direct cs or circumstantial, 69 to the satisfaction of the presiding judge 70 out-
side the declaration itself, 71 the latter may, upon being thus shown to be that
of a member of the family, be used to prove the relationship of the declarant
to any particular member of it. 72 The declaration regarding pedigree naturally
covers, moreover, other intimate relationships existing between members of the
immediate family, such as husband 73 or wife, 74 brother 75 or sister. 76 Finally,
the declarant may state his own relation to the family, 77 or to any designated
member of it.
933. Form of Statement. 78 An unsworn statement regarding pedigree
may present itself to the tribunal in any one of a variety of forms. So far as
such declarations constitute an exception to the hearsay rule, they rest, in main,
upon the credit of the declarant. They are, therefore, personal evidence. As
58. Shrewsbury Peerage Case, 7 H L. Cas. 110 Pac. 828 (1910); Wren v. Rowland, 33
I, 11 Eng. Reprint I (1858). Tex. Civ. App. 87, 75 S. W. 894 (1903).
59. Maslin v. Thomas, 8 Gill (Md.) 18 68. Pierce v. Jacobs, 7 Mackey (18 D. C.),
(1849). 489 (1887).
60. McClaskey v Barr, 47 Fed. 154; re- 69. Northrop v. Hale. 76 Me. 306, 49 Am.
versed 70 Fed. 529, 530, 17 C. C. A. 251 Rep. 615 (1884).
(1891). 70. Sitler v. Gehr, 105 Pa. St. 577, 51 Am.
61. Currie v. Stairs, 25 N. Brunsw. 4 Rep. 207 (1884).
(1890). 71. Welch v. Lynch, 30 App D. C 122
62. Illinois. Stumpf v. Osterhage, 111 111 (1907) ; State v. McDonald, 55 Oreg. 419, 104
82 (1884); Hishton v. Nesbitt, 2 M. & Rob. Pac. 967 (1909) rehearing denied, 106 Pac.
554 (1844) ; Currie v. Stairs, 25 N. Brunsw. 4 444 (1910).
(18!)0). 72. Wallbridge v. Jones, 33 U. C. Q. B.
63. De Leon v. McMurray, 5 Tex. Civ App. 613. 618 (1873).
280, 23 S. W. 1038 (1893)*. 73. Chamberlain v. Chamberlain, 71 N. Y.
64. Monkton v. Atty.-Gen , 2 Russ. & M. 423 (1877)
147, 150, 11 Eng. Ch. 147 (1831) 74. Shorten v. Judd. 56 Kan. 43, 42 Pac.
65. Young v State, 36 Ore. 417. 59 Pac. 337. 54 Am St. Rep. 587 (1895).
812. 60 Pac. 711. 47 L. R A. 548 (1900) (for 75. In re Fail's Will, 107 N. Y. Suppl. 224,
identification, declarations tha deceased had 56 Misc. Rep. 217 (1907).
changed his name, had enlisted and deserted 76. Northrop v. Hale, 76 Me. 306, 49 Am.
were admitted) Rep 615 (1884)
66. Vantine v Butler. 240 Mo 521. 144 S 77. Russell v. Langford. 135 Cal. 356, 67
W 807, 39 L. R. A. ( N. S.) 1177 (1912). Pac 331 (1902).
67. In re Clark's Estate, 13 Cal. App. 786, 78. 4 Chamberlayne, Evidence, 2940,
2941.
j; })'54 PEDIGKEE.
submitted to the court, the pedigree declarations may be oral or in writing, 74 *
formal so or informal. Xo superior admissibility attaches to written state-
ments above those which are oral ; 81 nor is the official entry in the absence of
statute, received as proof of a higher grade. Declarations may be also classi-
fied as composite, i.e., proceeding from an indeterminate number of persons in
a general statement where the individual voices of the declarants have been
lost ; and individual, i.e.. the statements of identified persons.
934. [Form of Statement]; Composite; Reputation. 82 The evidence of
reputation in the family, i.e., among persons whose declarations would be
competent is receivable S3 for the purpose of establishing, in connection with
a member of any branch of the family, 84 an appropriate fact of pedigree. This
rule has sometimes been extended to include a general reputation in the com-
munity. 80 Facts covered may be both those directly asserted and those whose
existence is incidentally or collaterally declared. 86 Such reputation, in fine,
may relate to any of the ordinary facts of pedigree. 87
History in the family may fairly be deemed practically equivalent to
reputation. 88 As this is primary evidence no necessity for its introduction
need be shown. 89 Adequate knowledge of the declarant may be shown by
showing him to be a member of the family 90 with no motive to misrepresent. 91
Among facts of pedigree which may be established by reputation in the family
are those of age, 92 birth, 93 death, 94 marriage, 95 or its absence, 1 ' and the dates
79. Wolf v. Wilhelm (Tex. Civ. App. 1912) , 87. The location of a land certificate is
146 S. W. 216. not a fact of pedigree in this connection.
80. In re Peterson's Estate (N. D. 1912), Odom v Woodward, 74 Tex 41, 11 S. W.
134 N. W. 751 (entries in family Bible); 925 (1889)
Wolf v. Wilhelm (Tex. Civ. App. 1912), 146 88. Cook v Carroll Land, etc., Co. (Tex.
S. W. 216 (affidavit). Civ. App. 1897), 39 S. W. 1006; Byera v.
81. "The existence of a family register Wallace, 87 Tex. 503, 28 S. W 1056, 29 S.
does not exclude proof of declarations of de- W. 760 (1895) ; In re Hurllmrt's Estate, 68
ceased members of the family." Swing v. Vt. 366. 35 Atl. 77, 35 L. R A. 794 (1895);
French, 11 Lea. (Tenn.) 78, 80, 47 Am. Rep. Doe v. Griffin, 15 East 293, 13 Rev. Rep
277 (1883), per Cooper, J. 474 (1812).
82. 4 Chamberlayne, Evidence, 2942- 89. Smith v. Kenney (Tex Civ. App. 1899) ,
2948 54 S. W. 801 But see Rogers v De Bardele-
83. Butrick v. Tilton, 155 Mass. 461, 29 N. ben Coal, etc , Co., 97 Ala. 154, 12 So. 81
E 1088 (1892). (1893).
84. Butrick v. Tilton, 155 Mass 461, 29 N. 90. Metheny v. Bohn. 160 111. 263, 43 N. E.
E. 1088 (1892) (grandfather's cousin) ; Webb 380 (1896).
v. Richardson, 42 Vt. 465 (1869) (grand- 91. Morgan v. Purnell, 11 N. C. 95 (1825)
father) ; Cox v. Brice, 159 Fed. 378, 86 C. C. (ante litem motam if possible).
A. 378 (1908) 92. Watson v Brewster, 1 Pa St. 381
85. Wall v. Lubbock, 52 Tex. Civ. App. 405, (1845) Contra Rogers v. De Bardeleben
118 S. W. 886 (1909). Coal, etc., Co., 97 Ala. 154, 12 So. 81 (1893) ;
86. Fraser v. Jennison, 42 Mich. 206, 3 N. White v. Strother. 11 Ala. 720 (1847)
W, 882 (1879) (residence) ; American L. Ins., 93. In re Hurlburt's Estate, 68 Vt 366,
etc., Co. v. Roaenagle, 77 Pa St. 507 (1875) 35 Atl. 77. 35 L. R A. 794 (1895).
(dates) ; Swink v French, 11 Lea. (Tenn.) 78, 94. American L. Ins., etc., Co. v. Rosenagle,
47 Am. Rep. 277 (1883) (dates): Webb v. 77 Pa. St. 507 (1875).
Richardson, 42 Vt. 465 (1869) (dates).
715
FOBM.
935,936
at which these respective events occurred. 97 Reputation which is admissible
to establish the fact of marriage may be either general reputation 98 or reputa-
tion in the family. 09 Facts of parentage l or of relationship in general 2 may
be proved in the same way.
935. [Form of Statement] ; Tradition. 3 A further form of composite
statement is tradition in the family. 4 Like reputation, 5 a tradition is a form
of family history and may be shown by the testimony of any member of the
family, 7 in proof of the same familiar genealogical facts, 8 e.g., death, 9 mar-
riage 10 or relationship. 11 Certain minor details relating to tradition as proof
of pedigree may be mentioned. The requirement has been made that the
members of the family among whom the tradition existed should be shown
to be dead. 12 The fact, however, that the declarant appears to have had but
slight personal knowledge furnishes no ground for rejecting the testimony. 13
!N'or is entire accuracy in the statement insisted on, it being received for what
it is worth, notwithstanding some admitted discrepancy. 14 To the relevancy,
however, of the evidence it is essential that the tradition should be shown to
have arisen among those possessed of adequate knowledge and without con-
trolling motive to misrepresent. 15
936. [Form of Statement] ; Individual. 16 The extrajudicial declaration
95. In re Pickens, 163 Pa, St. 14, 29 Atl.
875, 25 L. R. A. 477 (1894).
96. Jacobs v. Fowler, 119 N. Y. Suppl. 647,
135 App. Div 713 (1909).
97. Metropolitan Life Ins. Co. v. Lyons
(Ind. App. 1912), 98 N. E. 824
98. Chamberlain v. Chamberlain, 71 N. Y.
423 (1877).
99. Jones v. Jones, 48 Md. 391, 30 Am.
Rep 466 (1877) ; Barnum v. Barnum, 42 Md.
251 (1875): Henderson v Cargill, 31 Miss.
367, 409 (1856): Clark v. Owens, 18 N. Y.
434 (1858).
1. State v. McDonald, 55 Oreg 419, 103
Pac. 512, 104 Pac. 967, 106 Pac 444 (1910).
2. Lamar v. Allen, 108 Ga. 158, 33 S. E.
958 (1899); Lindsey's Devisee v. Smith, 131
Ky. 176, 114 S. w'779 (1908).
3. 4 Chamberlayne, Evidence, 2949
4. In re HurHmrt's Estate, 68 Vt. 366, 377,
35 Atl. 77, 35 L. R. A. 794 (1895), per
Thompson, J.
5. Pancoast's Lessee v. Addison, 1 Harr.
& J. (Md.) 350, 2 Am. Dec. 520 (1802);
Carter v. Montgomery, 2 Tenn. Ch. 216
(1875) ; In re Hurlbnrt's Estate, 68 Vt. 366,
35 Atl. 77, 35 L. R. A. 794 (1895) ; Johnson
v. Todd, 5 Beav. 597 (1843).
6. Eisenlord v. Clum, 126 N. Y. 552, 27
X. E. 1024, 12 L. R. A. 836 ( 18)1 ) -. Eaton
v. Tallmadge, 24 Wis. 217 (186!)); Johnson
v. Todd, 5 Beav. 597 (1843).
7. Doe v. Griffin, 15 East 293 (1812).
8. Jackson v. King, 5 Cow. 237, 15 Am. Dec.
468 (1825); Jackson v. Browner, 18 Johns.
37 (1820); Jackson v. Cooley, 8 Johns. 128
(1811); Fulkerson v. Holmes. 117 U. S. 389,
6 Sup. Ct. 780, 29 L ed. 915 (1886).
9. Anderson v. Parker, 6 Cal. 197 (1856) ;
Pancoast's Lessee v. Addison, 1 Harr. & J
(Md.) 350, 2 Am. Dec. 520 (1802); Van
Sickle v. Gibson, 40 Mich 170 (1879); Fos-
gate v. Herkimer, Mfg., etc.. Co. 12 Barb.
(X. Y.) 352; affirmed, 12 N. Y. 580 (1852).
10. Van Sickle v. Gibson, 40 Mich. 170
(1879).
11. Van Sickle v Gibson, 40 Mich. 170
(1879).
12. Fosgate v. Herkimer Mfg., etc., Co., 12
Barb. (N. Y.) 352, affirmed, 12 N. Y. 580
(1852).
13. Lovat Peerage Case, 10 App. Cas. 763
(1885).
14. Johnson v. Todd. 5 Beav 597 (1843).
15. Whitelocke v. Baker, 13 Ves. Jr. 511,
9 Rev. Rep. 216, 33 Eng. Reprint 385 (1807).
16. 4 Chamberlayne, Evidence, 2950,
2951.
937,938 PEDIGBEE. 716
may be not only composite, as in case of reputation or tradition, but individual,
as where the speaker is identified. Individual statements may be oral 17 or
written. The oral statement is as competent as the most solemn written asser-
tion, on the same point, 18 even one contained in a family Bible. 19
937. Circumstantial Proof of Pedigree. 20 Evidence as to pedigree is often
circumstantial in nature as presented in the form of various facts whose
principal value is circumstantial rather than assertive and whose bearing
upon the issue often seems remote. 21 Let it be assumed that a contention
regarding a point in family history is of such a nature that, if correct, certain
entries would very probably, be found in a particular record. Finding them
there will be received as a fact circumstantially relevant. 22 Per contra, the
failure, upon inquiry, to find such entries may be a relevant fact, occasionally
of considerable probative force, tending to disprove the truth of the contention
itself. 23
938. Proof by Acquiescence in Case of Pedigree. 24 That a statement of a
fact of pedigree should be allowed to go uncontradicted and unaltered, when
brought to the attention of persons who should be interested in having the truth
alone stated, has a strong tendency to convince and satisfy reasonable minds
that the statement is true. This conclusion of logic is of great assistance in
many instances where proof of a genealogical fact is sought to be established.
Where the necessity is shown, the court will permit a proponent to prove a
statement of a relevant pedigree fact by whomsoever made or whatever may
be its form, provided it be shown or can fairly be inferred that it came to the
knowledge of some member of the family, connected either by blood, or mar-
riage, who had or may reasonably be taken to have had adequate knowledge
as to the truth of the matter : provided further, that the latter is shown or can
fairly be assumed to have assented to or acquiesced in the accuracy of the
17. Morrill v Foster, 33 N. H. 379 (1856). also admissible, as original evidence of the
18. Clements v. Hunt, 46 N C. 400 (1854) ; same facts." Kelly v. McGuire, 15 Ark. 555,
Swink v. French, 11 Lea (Tenn ) 78, 47 Am. 604 (1855), per Hempstead, J.
Rep. 277 (1883); Currie v. Stairs, 25 N. 22. Jackson v. King, 5 Cow. (N. Y.) 237,
Brunsw. 4 ( 1885) . But see Webb v. Haycock, 15 Am. Dec. 468 (1825) .
19 Beav. 342 (1864). 23. Crouch v. Hooper, 16 Beav. 182, 1
19. Currie v. Stairs, 25 N. Brunsw. 4 Wkly. Rep. 10 (1852) . The fact that no cer-
(1885). tificate of marriage is produced from the of-
20. 4 Chamberlayne, Evidence, 2952- fice of the clerk of the county, where the mar-
2954. riage was alleged to have been performed in a
21. " Correspondence of deceased members state whose law required the person perform-
of the family, recitals in family deeds, de- ing a marriage to file such a certificate, is a
scriptions in wills, and other solemn acts, are circumstance throwing great doubt on the
original evidence, where the oral declarations probability that the marriage ever took place
of the parties are admissible. Inscriptions and is competent evidence on that question,
on tombstones, and other funeral monuments, Barnum v. Barnum, 42 Md. 251, 299 (1875).
engravings on rings, inscriptions on family 24. 4 Chamberlayne, Evidence, 2955
portraits, charts of pedigree, and the like, are 2965.
717 ANIMAL. 939,940
declaration. 25 The probative element in this proof is the failure to make any
corrections in the statement. In this case adequate knowledge of the declarant
need not be shown, 20 but the adequate knowledge necessary and which may be
assumed is that of members of the family who acquiesce in the statement 27
without motive to misrepresent 2S and ante litem motam. The statement may
be in any form 29 and an adequate necessity must be shown for its admission.
Less stringency of proof is required in case of ancient facts 30 of family his-
tory 31 than others. The conduct of persons towards each other may be used
to show their relationship. 32 Mere possession of documents may be evidence 3S
as corroboration 34 in proving facts of family pedigree.
939. Animal Pedigree. 35 Evidence of reputation as to the pedigree of an
animal may be properly received. 30 Thus, in an action to recover damages
for injuries caused to an animal by reason of the negligence of a carrier, proof
of reputation as to the pedigree of the animal was held to be admissible. 37
Pedigree books may also be admitted where they are recognized as a standard
authority among dealers or breeders of the particular class of animals referred
to by such a book. 38
940. Scope of Circumstantial Evidence in Case of Pedigree; Age. 39 Should
the necessity be satisfactorily shown by the proponent, 40 he may establish the
fact of age by resorting to declarations which owe their probative force to cir-
25. People v Rat?, 115 Cal. 132, 46 Pac. bia) 80 (1886) : Kansas Pac. R. Co. v. Miller,
D15 (1896); Jones v. Jones. 45 Md. 144 2 Colo, 442 (1874).
(1876); Eastman v. Martin. 19 X. H. 152 33. Rollins v. Atlantic City K. Co., 73 X.
(1848). J. L. 64, 62 Atl. 929 (1905).
28. People v. Ratz. 115 Cal. 132, 46 Pac. 34. Fulkerson v. Holmes, 117 U. S. 389,
915 (1896): Jones v. Jones, 45 Md. 144 6 Sup. Ct 780, 29 L. ed. 915 (1885).
(1876); Eastman v. Martin, 19 X. H. 152 35. 4 Chamberlayne. Evidence, 2966.
(1848). 36. "The question of pedigree and ancestry
27. \Yeaver v. Leiman. 52 Md 708 ( 1879). is a matter of common or general reputation,
28. Dinan v. Supreme Council Catholic Avhether the question concerns horses, cattle,
Mut. Ben. Assoc., 201 Pa. St. 363. 50 Atl. dogs, or men. The matter, from the very na-
D99 (1902). ture of things, depends upon reputation or
29. Tnion Ins. Co v. Pollard, 94 Va. 146, common repute." Citizens, Rapid Tr. Co. v.
26 S. E 421, 64 Am. St. Rep. 715, 36 L. R. Dew, 100 Tenn. 317, 324, 45 S. W 790, 66
A. 271 ( 1896) . Am. St. Rep. 754, 40 L. R. A. 318 ( 1897) . per
30. Rollins v. Atlantic City R. Co., 73 X. J. Wilkes, J.
L. 64, 62 Atl. 929 (1905). 37. Jones v Memphis, etc., Packet Co.
31. After a long lapse of time, where the (Miss. 1902), 31 So. 201 See also Ohio & M
parties are dead and where it appears that a Ry. Co. v Stribling, 38 111 App. 17 (1899).
person has been recognized and treated as 38. Louisville & X*. R. Co. v. Kice. 109 Ky.
the legitimate child of a certain man and 786, 60 S W. 705 (1901) (holding American
woman, not only by the father and mother, stud books are admissible on question of pedi-
but also by various members of the families gree where carefully compiled and universally
of both father and mother, legitimacy may be accepted as conclusive by persons dealing in
presumed. In re Robb's Estate, 37 S. C. 19, such animals).
16 S. E 241 (1891). 39.4 Chamberlayne. Evidence, 2967-
32. White v. Strother. 11 Ala. 720 (1847) ; 2969.
Green v. Norment, 5 Mackey (Dist. of Colum- 40. People v. Mayne, 118 Cal. 516, 50 Pac.
941,942
PEDIGEEE.
718
cumstances and which are admissible under the pedigree exception for like
reason. 41 This may be done by entries in a family record 42 or family Bible 43
and a person may testify to his own age though necessarily based on hearsay 44
but he may not testify to the age of another on the basis of hearsay 45 or
reputation. 40
941. [Scope of Circumstantial Evidence in Case of Pedigree] ; Birth. 47 It
has been said that hearsay cannot be used to prove the place of a person's
birth. 48 This, however, may well be doubted, for hearsay declarations or
reputation in the family 49 regarding the fact, place 5 " or time of birth may
be as competent as is the circumstantial proof i(1 by which these facts are
established.
942. [Scope of Circumstantial Evidence in Case of Pedigree] ; Death. 52
Should a suitable forensic necessity for receiving it be presented, 53 not only
may secondary evidence of extrajudicial statements be received in proof of the
654, 62 Am. St. Rep. 256 (1897); Hunt v.
Supreme Council 0. of C. F., 64 Mich. 671,
31 N. W. 576, 8 Am. St. Rep. 855 (1887);
Leggett v. Boyd, 3 Wend. (X. Y.) 37V>
(1829) ; Campbell v. Wilson, 23 Tex. 253, 76
Am. Dec. 67 (1859).
41. California. People v. Ratz, 115 Cal.
132, 46 Pac. 915 (1806).
42. Bertram v. Witherspoon, 138 Ky. 116,
127 S. W. 533 (19JO); State v. Hazlett, 14
N. D. 490, 105 N. \~. 617 ( 1905) ; Union Cent.
L. Ins. Co. v. Pollard, 94 Va. 146, 26 S. E.
421, 64 Am St. Rep. 715, 36 L. R. A. 271
(1896).
43. Where a mother testified as to the age
of her children, a record of the entries of
their births made in the family Bible under
her dictation by a person since deceased was
admitted to corroborate the testimony of the
mother. Wiseman v. Cornish, 53 N. C. 218
(8 Jones Law) (1860).
44. This may be true though the parents
of the declarant are available as witnesses.
Bain v. State, 61 Ala. 75 (1878) : Pearce v.
Kyzer, 16 Lea (Tenn.) 521, 57 Am. Rep. 240
(1886) . It is competent to show, on the ques-
tion of a girl's age, that, before the contro-
versy arose, the girl had a birthday party
and, on that occasion, there was a birthday
cake having her age in figures upon it. Park-
hurst v. Krellinger, 69 Vt. 375, 38 Atl. 67
(1897).
45. People v. Mayne, 118 Cal. 516, 50 Pac.
654, 62 Am. St. Rep. 256 (1897): "Dinan v.
Supreme Council Catholic Mut. Ben. Assoc.,
201 Pa. St. 363, 50 Atl. 999 (1902); Con-
necticut Mut. L. Ins. Co. v. Schwenk, 94 U.
S 593, 24 L. ed 294 (1876).
46. Sims v. State (Tex. Cr. App. 1902),
70 S W. 90; Colclough v Smyth. 15 Ir. Ch.
347, 10 L. T. Rep. (N. S.) 918 (1863).
47. 4 Chamberlayne, Evidence, 2969a.
48. Brooks v. Clay, 3 A. K. Marsh. (Ky.)
545 ( 1821 ) ; Adams v. Swansea, 1 16 Mass. 591
(1875): Tyler v. Flanders, 57 N. H. 618
(1876): Ctirrie v. Stairs, 25 New Bruns. 4
(1885). A witness will not be permitted to
testify, entirely from the hearsay statements
of others, as to the place of his birth. Mc-
Carthy v. Deming, 4 Lans. (N. Y.) 440
(1871); Mima Queen v. Hepburn. 7 Cranch
(U. S.') 290, 3 L. ed. 348 (1813); Rex. v.
Erith, 8 East 539, 542 (1807).
49. Clark v. Owens, 18 N. Y. 434 (1858).
See also Grand Lodge A. O. U. W. v. Bartes,
69 Neb. 631, 96 N. W. 186, 98 N. W. 715,
111 Am. St. Rep. '577 (1904).
50. Wilmington v. Burlington, 4 Pick.
(Mass.) 174 (1826): McCarty v. Terry, 7
Lans. (N. Y. ) 236 (1872).
51. Weaver v. Leiman, 52 Md. 708 (1879) ;
Beckham v. Nacke, 56 Mo. 546 (1874); See
also Currie v. Stairs, 25 N! Brunsw. 4 ( 1885).
52. 4 Chamberlayne, Evidence, 2970-
2973.
53. Unless the fact be an ancient one. it
may properly be assumed, in the absence of
affirmative proof on the subject, that primary,
i.e., more original, evidence can be procured
on the subject, all forms of secondary proof
being provisionally rejected. Stouvenel v.
Stephens, 26 How. Pr. (N. Y.) 244 (1863).
719
MARRIAGE.
943
fact of death, whether such declarations be in individual 54 or composite 55
form, but facts circumstantially relevant are equally available for the purpose. 56
The conduct of the family 1 "' 7 or information received from the family 5 - may
be used to establish rhe death of one of its members. Death may also be
shown by proof of general reputation in the community 5 ' J where the family
had knowledge of it."" A report of death must be in the form of a declara-
tion by a deceased member of the family. 01
943. [Scope of Circumstantial Evidence in Case of Pedigree] ; Marriage. 62
The fact of marriage may be proved circumstantially by cohabitation, 63 by
the fact that the persons in question had children whom they acknowledged
and to whom they gave the family name, 64 by the alleged husband's support of
the alleged wife and children, 65 or by any acts or conduct of the parties proba-
tively relevant." Marriage may also be shown by entries in a family record, 67
by reputation in the community 68 or in the family 69 but reputation may be
insufficient when standing alone in criminal cases. 70
54. Stouvenel v. Stephens, 26 How. Pr. (X.
Y.) 244 (1863); Fosgate v. Herkimer Mfg.,
etc., Co, 12 Barb. (X. Y.) 352, affirmed, 12
X. Y. 580 : 1852) ; Primm v. Stewart, 7 Tex.
178 (1851) : Scott v. Ratliffe, 5 Pet. (U S. )
81, 8 L. ed 54 (1831).
55. Ewing v. Savary, 3 Bibb. (Ky.) 235
(1813). Reputation may be the only avail-
able evidence. Ringhouse v. Keever, 49 111
470 -1869) ; Houston City St. R Co. v Rich-
art (Tex. Civ. App. 1894), 27 S. W. 920.
56. Mortality tables if of recognized au-
thority, are receivable as part of the common
knowledge of the community and may be ex-
amined by the judge as tending to establish
the facts asserted. Mississippi, etc., R. Co.
v. Ayres, 16 Lea (Tenn.) 725 (1886); Gal-
veston, etc., R. Co v. Arispe, 81 Tex. 517,
17 S. W. 47 (1S9D; McKeigue v Janes-
ville, 68 Wis 50, 31 X. W. 298 ( 1887) ; Vicks-
burg, etc, R. Co. v. Putnam, 118 U. S. 545,
7 Sup Ct. 1, 30 L. ed 257 (1886)
Gravestones. Xorth Brookfield v. Warren,
16 Gray (Mass.) 171 (I860): Smith v. Pat-
terson, 95 Mo. 525, 8 S. W. 567 (1888)
Family Bible. Wiseman v. Cornish, 53 N.
C. 218 (8 Jones Law) 16; In re Berkeley, 4
Campb 401 (1811).
57. X T orth Brookfield v. Warren, 16 Grav
(Mass.) 171 11860) ; Hunt v. Johnson, 19 X.
Y. 279 ( 1859 ; ; McClaskey v. Barr. 47 Fed
154, reversed, 70 Fed. 529, 530, 17 C. C. A.
251 (1893); Lewis v. Marshall. 30 U. S
(5 Pet ) 469, 8 L. ed 195 (1S31).
58. Anderson v. Parker, 6 Cal. 197 (1856) ;
Mason v. Fuller, 45 Vt. 29 (1872) ; Du Pont
v. Davis, 30 Wis. 170 (1872).
59. Pancoast v. Addison, 1 Har. & J. (Md.)
350, 2 Am. Dec. 520 (1802) ; Jackson v. King-
5 Cow. (X. Y.) 237, 15 Am. Dec. 468 (1825) ;
Flowers' Lessee v. Haralson, 14 Tenn. (6
Yerg.) 494 (1834) ; Ringhouse v. Keever, 49
111. 470 (1869) ; Flowers' Lessee v. Haralson,
6 Yerg (Tenn.) 496 (1834).
60. Welch v. R Co , 1S2 Mass. 84, 64 X. E.
695 (1902); Blaisdell v. Bickum, 139 Mass.
250, 1 X. E. 281 (1885).
61. Wallace v. Howard (Tex. Civ. App.
1895), 30 S. W. 711.
62. 4 Chamberlayne, Evidence, 2974-
2977.
63. Jackson v. Jackson, 80 Md. 176, 30 Atl.
752 (1894); Jones v. Jones, 45 Md. 144
(1876); Copes v. Pearce, 7 Gill. (Md.) 247
(1848); Henderson v. Cargill, 31 Miss. 367
(1894) ; Thompson v. Xims, 83 Wis. 261, 53
X W. 502, 17 L. R. A. 847 (1892).
64. Henderson v. Cargill, 31 Miss. 367
(1894)
65. Vincent's Appeal, 60 Pa St. 228 ( 1869) .
66. Kansas Pac. R. Co. v. Miller, 2 Colo.
442 (1874) ; Jennings v. Webb. 8 D. C. App.
43, 56 (1896); Thompson v Xims, 83 Wis
261, 53 NT. W 502, 17 L. R. A. 847 (1892).
67. Jones v Jones, 45 Md. 144 (1876).
68. Chamberlain v. Chamberlain. 71 X". Y.
423 (1877). In re Pickens, 163 Pa St. 14,
29 Atl. 875, 25 L. R. A. 477 (1894).
69. Jones v. Jones, 48 Md. 391, 30 Am.
Rep. 466 (1877) ; Barnum v. Barnum, 42 Md.
944-948 PEDIGEEE. 720
944. [Scope of Circumstantial Evidence in Case of Pedigree] ; Names. 71
The name of an individual or family may be proved by reputation, 72 the fact
that a reputation exists rendering it worthy of consideration.
945. [Scope of Circumstantial Evidence in Case of Pedigree] ; Race. 73
Circumstances regarding the recognition and treatment of a person as a mem-
ber of a particular race are competent on the question of race. 74
946. [Scope of Circumstantial Evidence] ; Relationship. 70 Relationship
may be proved not only by the declarations of deceased members of the family
but by evidence more circumstantial in its nature, e.g., the possession of prop-
erty at one time belonging to an ancestor by one claiming to be his descendant T6
or the manner in which two persons conducted themselves in respect to each
other. 77 Acts of a deceased, tending to show his illegitimacy, are admissible
on that point, as are also the acts of his mother. 78 Likewise common reputa-
tion upon the subject of the parentage of a person whose pedigree is in dispute
is admissible. 79 Even similarity of names will be considered on the question
of relationship in case of ancient facts. 80
947. [Scope of Circumstantial Evidence in Case of Pedigree] ; Residence. 81
For the purpose of identifying a given person or establishing some other rele-
vant fact, the question of place of residence may become closely involved with
pedigree and treated in many respects as a pedigree fact. 82 However, it seems
to be settled that residence cannot be established by reputation. 83
948. [Scope of Circumstantial Evidence in Case of Pedigree] ; Status. 84
General reputation has been held admissible to prove the status of a person,
for example, that he was a free person 85 or that he was a noncitizen ; 86 but
this is contrary to the weight of authority. 87 In criminal cases, where the fact
251 (1875); Henderson v. Cargill, 31 Miss. Pac. 512, 104 Pac. 907, 106 Pac. 444 (1910).
367, 409 (1856); Clark v. Owens, 18 N. Y. 80. Fulkerson v. Holmes, 117 U. S. 389, 6
434 (1858). Sup. Ct. 780, 29 L. ed. 915 (1885).
70. Burning v. Hastings, 183 Pa. St. 210, 38 81. 4 Chamberlayne, Evidence, 2980a.
Atl 627 (1897) Icrim. con.). 82. Byers v. Wallace, 87 Tex. 503, 511, 28
71. 4 Chamberlayne, Evidence, 2978. S. W. 1056, 29 S. W. 760 (1895), per Brown,
72. U. S. v. Dodge, 25 Fed. Cas. No. 14,974, J.
Deady 186 (1866). 83. R. Co. v. Thompson, 94 Ala. 636, 10
73. 4 Chamberlayne, Evidence, 2979. South. 280 (1891) ; Shearer v. Clay 11 Ky. (1
74. Locklayer v. Locklayer, 139 Ala. 354, Litt.) 260 (1822); Ferguson v. Wright, 113
35 So 1008 (19031 ; Gilliland v. Board of Ed- N. C. 537, 18 S. E. 691 (1803) : Londonderry
ucation, 141 N. C. 482, 54 S. E. 413 (1906). v Andover, 28 Vt. 410 (1856)
75. 4 Chamberlayne. Evidence, 2980 84. 4 Chamberlayne, Evidence, 2981.
76. Wiess v. Hall (Tex. Civ. App. 1911), 85. Bryan v. Walton. 20 Ga. 480. 509
135 S. W. 384; Fulkerson v. Holmes, 117 U. (1856). See also Shorter v. Boswell, 2 Harr.
S. 389, 6 Sup. Ct. 780, 29 L ed. 815 (1885). & J. (Md.) 359 (1808).
77. White v. Strother, 11 Ala. 720 (1847). 86. George v. U. S., 1 Okla, Cr. 307, 97
78. State v. McDonald, 55 Ore. 419, 103 Pac. 1052, 100 Pac. 46 (1908).
Pac. 512, 104 Pac. 967, 106 Pac. 444 (1910). 87. Walkup v. Pratt, 5 Harr & J. (Md.)
79. State v. McDonald, 55 Ore. 419, 103 51 (1820); Walls v. Hemslev, 4 Harr. & J.
721 STATUS. 948
of corporate existence is merely a collateral matter, such fact may be established
by general reputation. 88
(Md.) 243 ( 1817) ; Charlton v. Unis, 4 Gratt. 1 (1893) ; State v. Thompson, 23 Kan. 338,
(Va.) 58 (1847). 33 Am. Rep. 165 (1880).
88. Fleener v State, 58 Ark. 98, 23 S. W.
CHAPTER XLIV.
HEARSAY AS PRIMARY EVIDENCE; (SPONTANEITY.
Hearsay as primary evidence, 94'J.
Relevancy of spontaneity, i50.
Declarations part of a fact in the res gestae, 951.
relevancy to fact asserted, 952.
statement must be contemporaneous, 953.
The principle of the res gestae, 954.
relation to the rule against hearsay, 955.
The modern view, 956.
considerations determining spontaneity, 957.
elapsed time, 958.
form of statement, 959.
consciousness and lack of motive to misstate, 960.
permanence of impression, 961.
physical state or condition, 962.
Narrative excluded; admissions, 963.
spontaneous statements by agents, 964.
remoteness, 965.
Range of spontaneous statements; probative facts preceding the res gestae, 966.
probative facts subsequent to the res gestae, 967.
accusation in travail, 968.
declarations of complainant in rape, 969.
. American rule, 970.
independent relevancy ; failure to complain, 971.
the element of time; independent relevancy, 972.
declarations of owner on discovering larceny, etc., 973.
personal injuries, 974.
Probative weight of spontaneous statements, 975.
Who are competent declarants, 976.
949. Hearsay as Primary Evidence. 1 Hearsay evidence is received as pri-
mary evidence only in two classes of cases. Judicial administration recognizes
mainly, if not exclusively, two influences upon the mind of the declarant in any
given case which, in the absence of countervailing considerations, uniformly
are deemed to confer admissibility upon his extrajudicial statements. These
are, (1) the- truth-compelling power of a spontaneous reaction to an over-
1. 4 Chamberlayne, Evidence, 2982.
722
723 RELEVANCY. 050,951
whelming motor impulse; (2) a force of habit. The former, it has seemed
convenient brietiy to designate as the Relevancy of Spontaneity. The latter
will be spoken of as the Relevancv of Reffularitv.
r . .
950. Relevancy of Spontaneity. 2 To judicial administration, the auto-
matic is the true. 3 What a declarant asserts, not so much of himself 4 as over-
borne and forced thereto by overwhelming emotion, the stress of sudden shock
or intense pain, the law of evidence assumes to be the fact.
951. Declarations Part of a Fact in the Ees Gestae.' 5 Apparently, in cur-
rent judicial parlance, a spontaneous extrajudicial statement is spoken of as
being a declaration which is " part of the res gestae." 7 Such unsworn state-
ments are customarily received in civil cases or on criminal proceedings in proof
of the facts asserted. Indeed, wherever the element of spontaneity is present,
e.g., in connection with independently relevant extrajudicial statements, includ-
ing, to use Greenleaf s phrase, 8 " verbal acts," and the like, the presence of this
element of proof tends to superimpose upon the constituent or probative rele-
vancy of such statements a tendency to establish the truth in point of fact of
that which has been asserted. For reasons which are in part stated elsewhere, 9
the presence of spontaneity is not essential for this purpose of proving the fact
asserted in an extrajudicial declaration. Wherever spontaneity is present,
however, such is its probative effect.
Res gestae is indeed, as employed by the American courts, a term of protean
meaning. 10 Properly considered, and as, in a majority of cases, represented
in the English view, the term designates the actual series of world happenings
out of which the right or liability asserted in the action arises so far as it arises
at all. To extend the same phrase so as to include not only the probative facts
which, when direct proof of the true res gesiae is unavailable, are used to estab-
lish them, but to cover also all evidentiary or probative facts whatever, and
even those which, though lacking in probative relevancy, the rules of procedure
have made admissible, seems by no means ideal. A careful examination of a
considerable number of decisions in which it has been held that certain evi-
dence was admissible as " part of the res gestae " will, it is believed, convince
the student of two facts, (1) that a rational and true reason may be discovered
2. 4 Chamberlayne, Evidence. 2083. 5. People v. Del Venno, 192 X. Y 470, 85
3. Murray v Boston & M R. Co.. 72 N H. X E 600 (190SK
32, 37. 54 Atl 280. 61 L. R. A. 405, 101 Am. 6. 4 Chamberlayne, Evidence, 2984,
St. Rep fiGO (1<)03). 2985.
4. Competency as a witness. So little is 7. Feldman v. Detroit United Ry., 162
the declarant in an extra judicial spontaneous Mich 4S6. 127 X W. 687, 17 Detroit Leg. N.
utterance regarded as thinking his ovm 707 (1010).
thoughts that it is not even required for the 8. 1 Olf. Ev. (15th ed.) 108.
admissibility of his statement that he should 9. 2580.
he competent as a witness Croomes v. State, 10. State v. Territory, 12 Ariz. 36, 38, 94
40 Tex. Cr App 672, 51 S. W. 924, 53 S. W. Pac 1104 (1908).
882 (1899).
952 HEARSAY AS PRIMARY EVIDENCE; SPONTANEITY. 724
for admitting the evidence in every case where it was properly admitted, with-
out resorting to a meaningless phrase; (2) that the court, feeling from the
standpoint of reason or " common sense " that the jury should have the aid of
the evidence, admitted it as u part of the res gestae " without taking the trouble
to discover and assign the true reason for its admissibility. Illustrations of
this loose and hurried use of the convenient term res yestae are not rare in
judicial opinions. 11
952. [Declarations Part of a Fact in the Res Gestae] ; Relevancy to Fact As-
serted. 12 That the relevancy of an extrajudicial statement to the existence of
the fact asserted in it is due to the spontaneous nature of the utterance rather
than to position among the res yestae becomes obvious upon comparing those
res gestae utterances deemed admissible for the purpose and those not so re-
garded. A very large number of extrajudicial statements deemed independ-
ently relevant are undoubtedly part of the res gestae, properly so called, as
being constituency relevant. These utterances, however, have no tendency, in
the absence of spontaneity, to establish the existence of the facts which they
assert. That the defendant, for instance, said, speaking of the plaintiff,
" A. B. is a thief," may on an action of slander be proved as a relevant, indeed,
a necessary fact. Such a declaration would have little tendency, standing
alone, though obviously part of the res gestae, to show that it was true, that
A. B. was, in point of fact, a thief.
Whether the exhibition by an extrajudicial statement of a proving power
resulting from an intimate relation to attending circumstances would ever be
accepted as sufficient judicial proof of the fact asserted is very doubtful. Upon
principle, it may fairly be contended that such proof should be sufficient.
Xo distinction, as a matter of principle or of authority, exists between the
meaning of res gestae when employed in criminal as distinguished from civil
cases. What is law for a criminal case is law for a civil case, and -vice
versa.
The distinction which procedure recognizes between the independently rele-
vant capacity of an extrajudicial statement and its use in an assertive capacity
is, at bottom, false and misleading. The circumstantially probative quality
of any statement, the proving power of the fact of its existence, persists in all
cases, whether the statement be judicial or extrajudicial. the capacity in which
it is used, assertive or relevant, independent of its truth or falsity.
The assertive capacity of an extrajudicial statement presents, as compared
to that of independent relevancy, certain essential differences, at least on the
surface. The fact of the statement, its circumstantially probative quality in
establishing the existence of a physical or psychological fact in itself relevant,
recedes into the background. The inference of truth to which the making of
11. Hall v. Uvalde Asphalt Pav. Co., 92 N. 12. 4 Chamberlayne, Evidence, 2986-
Y. Suppl. 46, 47 (1905). 2991.
725 CONTEMPORANEOUS. 953
the statement gives rise, under the circumstances disclosed, assumes the first
importance.
953. [Declarations Fart of a Fact in the Res Gestae] ; Statement Must be
Contemporaneous. 13 The rule as commonly laid down is that an extrajudicial
declaration must, in order to be received in evidence, be contemporaneous with
some principal fact in the res gestae. 14 Few rules are more confusing. In
the first place, strictly speaking, it is not and cannot be insisted on. Practical
contemporaneousness is all that is required. 15
The statement is further confused as the extrajudicial declarations which
properly constitute part of the res gestae may fall within one or the other of
two general classes. (1) They may be independently relevant, circumstan-
tially probative by reason of their mere existence, e.g., the utterance in an
action of libel or slander or proof of the mental state with which a particular
act is done. (2) They may be hearsay statements, used in their assertive
capacity, as proof of the facts alleged, e.g., where one injured in a railroad
collision gives a spontaneous account of it, before he has time to invent anything
to his own advantage. To the admissibility of these two classes or species of
extra judicial statement an entirely different standard of contemporaneousness
is customarily applied by judicial administrators.
The independently relevant statement may be admitted whether it follows 16
or precedes 1T the principal fact to be established by such declaration if it con-
tinues to be evidentiary of the fact to be proved by it 1S as in case of state-
ments of intention.
In case of a spontaneous statement it is of course necessary that the con-
trolling fact or facts from which spontaneity arises should be actually present
or that its or their influence should remain, dominating the mind of the decla-
rant. " J In other words, the essential consideration is as to the presence of
what may be called the reflection-numbing operation of certain impressive facts
upon the mind of the declarant.
The interval must be so short that any suspicion of fabrication will be elimi-
nated. 20
The rule is customarily laid down that an extrajudicial statement admitted
as part of the res gestae must characterize some proper fact within its scope. 21
13. 4 Chamberlayne, Evidence, 2992- 18. Louisville, etc., R. Co v. Pearson, 97
2996 Ala. 211. 12 So. 176 (1893) : Murray v. Bos-
14. Trenton Pass. R. Co. v. Cooper, 60 N. ton, etc., R. Co.. 72 N. H. 32, 54 Atl. 289, 61
J. L. 219, 37 Atl. 730, 64 Am. St. Rep. 592, L. R. A. 495, 101 Am. St. Rep. 660 (1903).
38 L. R. A. 637 (1897). 19. Keyes v. Cedar Falls, 107 Iowa 509, 78
15. Murray v. Boston, etc., R Co., 72 N. H. N. W. 227 (1SM>
32. 54 Atl 289, 61 L R. A. 459, 101 Am. St 20. Com. v. Van Horn, 188 Pa. St. 143, 41
Rep 660 (1903). Atl. 469 (1893).
16. Bradley v. State, 54 Tex. Cr. App. 53, 21. Smith v. National Ben. Soc., 123 X. Y.
Ill S \V. 733 (1908). 85, 25 N. E. 197, 9 L. R. A. 616 (1890).
17. State v Laster, 71 N. J. L. 586, 6 Atl.
361 (1905).
954,955 HEARSAY AS PRIMARY EVIDENCE; SPONTANEITY. 726
This may be doubted, notwithstanding the well-settled character of the rule,
Certainly, the proposition does not hold true in case of a spontaneous utterance.
What the half-dazed victim of a railroad accident, for example, has to say re-
garding the cause of his condition has, as a rule, little effect in limiting, ex-
plaining or otherwise characterizing any fact in the res gestae, whatever may
be the meaning attached to that elastic phrase.
In accident cases great assistance is furnished by admitting in evidence spon-
taneous statements of the participants in the transaction, 22 and in criminal
cases statements of the deceased 2a or of the accused - 4 or of the person injured
are likewise admitted even though self-serving. 25 The so-called res gestae fact
should itself be receivable in evidence 2ti as one material to the issue. 27
954. The " Principle of the Res Gestae." 28 What did Prof. Greenleaf un-
derstand by '' the principle of the res gestae "? To attempt grasping, even in
outline, the present situation regarding the meaning of res gestae as employed
by American courts and something as to the rule admitting extra judicial state-
ments as part of this class of facts, it may be necessary to examine the work
of this eminent authority in some detail. " Res gestae " means what, if any-
thing, Greenleaf has made it mean. To him, it owes its great extension in
scope, its rank as a so-called "principle." The feature which the various rules
relied upon by Greenleaf in illustration of his general " principle " of the
res gestae possess in common is that of introducing as a ground for receiving
the evidence an element of probative force distinct from the general credit of
the declarant.
The basis of Greenleaf's " principle of the res gestae " is further denned by
his inclusion, as illustrations of it, of classes of extrajudicial statements which
are chiefly evidentiary by reason of their mere existence and which, in the
present treatise it has seemed appropriate to denominate independently rele-
vant, i.e., probative, regardless of their truth or falsity. Under this head are
grouped all juridical uses of an unsworn statement in its circumstantial aspect,
no inference being suggested as to the truth of the facts asserted.
955. [The " Principle of the Res Gestae "] ; Relation to Rule Against Hear-
say. 29 The firm establishment and general acceptance among courts and
jurists of the proposition really implied in Greenleaf's " principle of the res
gestae " would seem to promise much benefit to the practical operation of the
22. Gilbert v. Ann Arbor R. Co., 161 Mich 26. Pinney v. Jones, 64 Conn. 545, 30 Atl.
73, 125 N. W. 745 (1010). 762, 42 Am. St. Kep. 209 (1894).
23. Com. v. Van Horn, 188 Pa. St. 143, 41 27. State v. Whitt, 113 N. C. 716, 18 S. E.
Atl. 469 (1898). 715 (1893).
24. Darby v. State, 9 Ga. App. 700, 72 S. E. 28. 4 Chamberlayne, Evidence, 2997-
182 (1911) : State v. Eutledge, 135 Iowa 581, 3002.
113 N. W. 461 (1907) 29. 4 Chamberlayne, Evidence, 3003.
25. Murer Coal & Ice Co. v. Howell, 217 111.
190, 75 N. E. 469 (1905).
727 MODERN VIEW. 956-958
rule against hearsay. That an extra judicial statement should be received under
proper administrative restrictions in individual cases, as primary evidence in
support of any relevant inference, not resting in main upon the credit of the
declarant, to which it logically gives rise would at once deprive the hearsay
rule of its anomalous character and introduce a simplifying rule of much scien-
tific value and of great practical assistance to judicial administration.
956. The Modern View. 30 Kecognizing the actual and the still greater
potential value of Greenleaf's work in this connection, it may be reluctantly ad-
mitted that the main body of the legal progress along lines of evidence has by
no means taken up the entire advanced ground which the eminent authority of
the last century, as it were, staked out for it. The mere logical relevancy of an
unsworn statement, though not resting in main upon the credit of the declarant,
is not in itself as yet a sufficient ground for receiving it in support, of a propo-
sition as to which it convinces the mind. This is true regardless of the forensic
necessities of the proponent or the administrative situation of the case.
Courts had long been familiar with the probative force of an extra judicial
statement rendered spontaneous by the controlling influence of a fact in the
res gestae, properly so-called. That they should hesitate to do justice by re-
ceiving spontaneous statements where the dominating fact is an evidentiary or
probative one could scarcely be expected. The essential element of proving
power was the spontaneous, unreflecting nature of the utterance. The relation
which the controlling fact sustained to the proposition in issue, whether its
relevancy was constituent, as being that of a res gestae fact, or probative as
being that of an evidentiary one could not be permitted to be a determining
factor in the doing of justice. As Greenleaf's classification made all spon-
taneous statements ' l part of the res gestae," modern courts have felt no hesi-
tation in extending the term res gestae so as to cover relevant facts controlling
the volition of the declarant, whatever be their relation to the issue. 31
957. [The Modern View] ; Considerations Determining Spontaneity. 32
Whether the circumstances under which a declaration was made are such as to
make it reasonably probable that it was spontaneous presents a preliminary
question for the determination of the trial judge. 33 The burden is upon the
proponent to show the essential fact. 34 Should the judge be of opinion that an
opportunity for deliberation and reflection has been afforded to the speaker, it
will be assumed to have been utilized, the declaration being rejected. 35
958. [Considerations Determining Spontaneity] ; Elapsed Time. 3fi The para-
mount single influence in consideration of the admissibility of spontaneous
30. 4 Chamberlayne, Evidence, 3004, 34. Pool v. Warren County, 123 Ga 205,
3005. 51 S. E. 328 (1905).
31. Travellers' Insurance Co. v. Mosley, 8 35. Wright v. State, 88 Md. 705, 41 Atl.
Wall. (U. S.) 397, 403, 19 L. ed 437 (1869). 1060 (1898).
32. 4 Chamberlayne, Evidence, 3006. 36. 4 Chamberlayne, Evidence, 3007-
33. State v Williams, 108 La. 222, 32 So. 3009.
402 (1902).
959 HEARSAY AS PRIMARY EVIDENCE; SPONTANEITY. 728
declarations is that of elapsed time as other things being equal 37 the shorter
the interval of elapsed time the greater the probability that the declaration is
spontaneous. 38 .No definite rule can be laid down however as shortness of
elapsed time is by no means equivalent to proof of spontaneity.^ Where the
interval is indefinite spontaneity must be aim-mat ivdy shown and even a very
short interval of time is not conclusive in favor of its existence. 40 Where the
interval of elapsed time is definite the comparative number of receptions to
rejections increases as the length of time is shorter and where the time is two
minutes 41 or less a large proportion of the statements are admitted unless it
otherwise appears that the statement was not spontaneous 42 but even long
periods as several hours may not render the statement inadmissible under ex-
ceptional circumstances. 43
959. [Considerations Determining Spontaneity]; Form of Statement. 44 A
form of statement presented in the evidence may assist judicial administration
in determining whether a given utterance is spontaneous. Strong emotion is
brief, incisive, often disjointed in expression. It gravitates, apparently by
some rudimentary impulse, to the pulsating, the rythmical. Overflowing emo-
tion shows a peculiar torrential quality, in itself readily distinguished from the
calm, orderly word-choosing process of deliberate, purposeful discourse. An
extended, involved and closely connected form of statement naturally tends,
therefore, to repel the inference of spontaneity. 45 Should the utterance actually
be automatic or instinctive, the circumstance that it is made in a narrative form
is by no means conclusive against its admissibility. 46 Should a reasonable
suspicion exist on the part of the judges that the statement is, as a matter of
fact, a narrative, i.e., a deliberate account of past events, the administrative
practice is to exclude it. 47
37. Whether particular sayings constitute a 41. Murray v. Boston, etc., R. Co., 72 N.
part of res gestae depends rather on the H. 32, 54 All. 289, 61 L. R. A. 495, 101 Am.
spontaneity of the events than on the precise St. Rep. 660 (1903) ; Coll v. Easton Transit
time which may have elapsed between the Co., 180 Pa. St. 618, 37 Atl. 89 (1897).
main fact and the statements made. Cobb 42. King v. State, 5 Miss. 576, 5 So. 97,
v. State (Ga. App. 1912), 74 S. E. 702. 7 Am. St. Rep. 681 (1888) (a little more
38. State v. Molisse, 38 La. Ann. 381, 58 than a minute) .
Am. Rep. 181 (1886); Houston, etc., R. Co. 43. Walters v. Spokane International Ry.
v. Weaver (Tex. Civ. App. 1897), 41 S. W. Co., 58 Wash. 293, 108 Pac. 593 (1910)
846. (nearly two hours).
39. Du Bois v. Luthmer, 147 Towa 315, 126 44. 4 Chamberlayne, Evidence, 3010.
N. W. 147 (1910) (ten minutes received). 45. Indianapolis St. R. Co. v. Whitaker,
Adequate knowledge on the part of the 160 Ind. 125, 66 X. E. 433 (1903).
declarant must in any event be shown. 46. Lovett v. Georgia. 30 Ga. 255, 4 S. E.
~New Hampshire. Davis v. Boston & M, R. 912 (1887) ; Murray v. Boston, etc., R. Co.,
R., 75 N. H. 467, 76 Atl. 170 (1910). 72 N. H. 32, 54 Atl. 289, 61 L. R. A. 495,
40. " It is no more competent because made 101 Am. St. Rep. 660 (1903); Edwards v.
immediately after the accident than if made Edwards, 39 Pa. St. 369 (1861).
a week or a month afterwards." Lane v. 47. People v. Dice, 120 Cal. 1897, 52 Pac.
Bryant, 9 Gray (Mass.) 245, 247, 69 Am. Dec. 477 (1898) ; Thornton v. State, 107 Ga. 683,
282 (1857), per Bigelow, J. 33 S. E. 673 (1899) ; Savannah, etc., R. Co. v.
729 j ....:.-.
A written statement is not yc.r ae inadmissible, 48 although it would seem that
deliberation must usually accompany the making of a statement in such form.
960. [Considerations Determining Spontaneity] ; Consciousness and Lack of
Motive to Misstate. 49 It should appear in all cases that the declarant was con-
scious 5 " and the fact that the statement was against the interest of the declarant
will render it more readily received 51 than where it is self -serving. 52
961. [Considerations Determining Spontaneity] ; Permanence of Impres-
sion. 53 A fact receiving great judicial consideration is as to the permanent
nature of the impression which the controlling circumstances are calculated to
create. 54 " The seriousness of the injury, the character of the accident, and
the surrounding physical circumstances and results of the occurrence, attending
the declaration as well as the principal fact, are necessary matters for consid-
eration in the determination of the question of the admissibility of the declara-
tion." 55 -^
The presence of an excited state of mind at the time of the declaration tends
to make the statement more spontaneous 56 and a spectator is deemed less likely
to be excited than a participant in the affair. 57 To render the statement auto-
matic it is essential that no intervening circumstance should have taken place 58
and in such case the burden is on the proponent to show that the statement sub-
sequently made was spontaneous 59 as where medical assistance is obtained 6C
or removal from the scene of the transaction occurs. 61
962. [Considerations Determining Spontaneity] ; Physical State or Condi-
tion. 62 Plainly important for consideration of the court in determining the
question of spontaneity is the physical state or condition in which the declarant
is shown to have been at the time his statement was made. For example, an
Holland, 82 Ga. 257, 268, 10 S. E. 200, 14 Am. 55. Murray v. Boston, etc., R Co., 72 N. H.
St. Rep. 158 (1888). 32, 37, 54 Atl. 289, 61 L. R, A. 495, 101 Am.
48. From three to five minutes after her St. Rep. 660 (1903), per Walker, J.
throat was cut, the windpipe being severed so 56. State v. Rutledge, 135 Iowa 581, 113
that she could not speak, the deceased wrote. X. W. 461 (1907).
" Jess Morrison killed me." This was shown 57. Louisville Ry. Co. v. Johnson's Adm'r,
in evidence. State v. Morrison, 64 Kan. 669, 131 Ky. 277, 115 S. W. 207, 20 L R. A. (N.
68 Pac. 48 (1902). S. ) 133 (1909).
49. 4 Chamberlayne, Evidence, 3011, 58. Bernard v. Grand Rapids Paper Box
3012. Co., 170 Mich. 238, 136 X. W. 374 (1912).
50. Christopherson v. Chicago, M. & St. P. 59. Ford v. State, 40 Tex. Cr. App. 280,
R Co., 135 Iowa 409, 109 X. W. 1077 (1906). 50 S. W. .350 (1899).
51. O'Shields v. State, 55 Ga. 696 (1876) 60. State v. Deuble, 74 Iowa 509, 38 N. W.
52. Bradberry v State, 22 Tex. App. 273, 383 (1888); Mutcha v. Pierce, 49 Wis. 231,
2 S. YV. 582 (1886) ; U. S. v. King, 34 Fed. 5 X. W. 486, 35 Am. Rep. 776 (1880).
302 (1888). 61. Martin v. Xew York, etc., R. Co., 103 X.
53. 4 Chamberlayne, Evidence, 3013- Y. 626, 9 X E. 505 (1886). But see, Scheir
3019 v Quirin. 177 X. Y. 568, 69 X. E. 1130 (1904),
54. Snto v Territory. 12 Ariz. 36, 94 Pac. affirming 77 X. Y. App. Div. 624, 78 X. Y.
1104 (1908) : Murray v. Boston, etc, R. Co., Suppl. 956.
72 X. H. 32, 37. 54 Atl. 289, 61 L R. A. 62. 4 Chamberlayne, Evidence, 3020.
495, 101 Am. St. Rep. 660 (1903).
963 HEARSAY AS PEIMARY EVIDENCE; SPONTANEITY. 730
unsworn statement made while the declarant is afflicted with intense pain re-
sulting from a recent injury, 63 would probably, were no modifying facts sug-
gested, be judged to be spontaneous. Severe bodily suffering or mental anguish
may be highly significant in establishing the truth of facts asserted in the
utterance. Thus the declarations of a woman accusing her husband of setting
her clothing on fire, made while her body was still smoking; 4 those of a work-
man who had shortly before fallen into a vat of scalding liquid; 05 those of a
man who had been shot, made while his shirt was still on fire from the flash of
the weapon ; G6 and those of a man who had both arms crushed, made about an
hour after the accident, 67 have been received in evidence as spontaneous and
worthy of consideration by a jury. The first successful efforts by an injured
person at articulation may be received as spontaneous though the interval of
time since the original occurrence has been a considerable one. 68
963. Narrative Excluded; Admissions. 69 That a spontaneous statement
may relate to the existence of a fact which is physically past, though present
in the influence which it exerts, is not questionable. Where, however, an extra-
judicial assertion is a deliberate statement, made upon reflection of past events,
the declaration is classed as narrative and cannot be received under the present
rule, 70 admitting spontaneous statements as proof of the facts asserted.
Substance, rather than form, of statement, is regarded by judicial adminis-
tration as decisive, in this connection. 71 Though an extrajudicial declaration
be, in form, narrative, it will be received in its assertive capacity if in reality
it amounts to the spontaneous assertion of a relevant fact. 72 ^Nor is a state-
ment necessarily to be regarded as lacking in spontaneity because it is made in
response to a question, 73 though that fact often is an important element in ren-
dering a statement inadmissible. 74
63. Scheir v. Quirin, 177 N Y. 568, 69 X. 69. 4 Chamberlayne, Evidence, 3021,
E. 1130 ( 1904), affirming 77 App. Div. 624, 7S 3022.
N. Y. Suppl. 950 (1902). 70. Waldele v. R. Co., 95 N. Y. 274, 278,
64. Walker v. State, 137 Ga. 398, 73 S. E. 47 Am. Rep 41 (1884). per Earl, J.
368 (1912). 71. Bionto v Illinois Cent. R Co., 125 La.
65. Scheir v. Quirin, 177 X. Y. 568, 69 X. 147, 51 So. 98, 27 L. R. A. (X. S.) 1030
E. 1130 (1904), affirming 77 X. Y. App. Div. (1910).
624, 78 X. Y. Suppl. 956 (1902). 72. Lovett v. State. 80 Ga 255, 4 S. E. 912
66. Bice v. State, 51 Tex Cr. App. 133, 100 (1887) : Murray v. Boston, etc., R. Co., 72
S. W. 949 (1907) X. H. 32, 54 Atl. 289, 61 L. R. A. 495. 101
67. Starr v. Aetna Life Ins. Co.. 41 Wash Am. St. Rep. 660 (1903)
199, 83 Pac. 113, 4 L. R. A. (X. S.) 636 n 73. Denver City Tramway Co. v Brumley.
(1905). 51 Colo. 251. 116 Pac 1051* (1911); Christo-
68. Fulcher v. State, 28 Tex. App. 465, 13 pherson v. Chicago, M. & St P. R. Co , 135
S. W. 750 (1890). A physician may not tes- Iowa 409. 109 X. W. 1077 (l'90r.) ; Lexin?-
tify that when he pressed the plaintiff's ankle ton v. Fleharty, 74 Xeh. 626, 104 X. W. 1056
the plaintiff flinched as this is a mere declara- (1905).
tion to the physician Xorris v. Detroit 74. Greener v. General Electric Co., 208 N.
United R. Co.. 185 Mich. 264, 151 N. W 7 . 747. Y. 135, 102 X E. 527 (1913).
It may well be doubted whether this case is
good law.
731 NARRATIVE EXCLUDED. 964^966
Statements against interest are to be carefully distinguished from ordinary
spontaneous statements as they are received as admissions. 75 The admissions
of the agent are under a canon of substantive law received only when made
while the agent was acting in the business of the principal although they are
commonly received or rejected as being within or outside of the " res gestae." 7tt
964. [Narrative Excluded] ; Spontaneous Statements by Agents. 77 The
spontaneous statements of an agent stand in an entirely different administrative
position, as evidence of the facts asserted, from his extrajudicial admissions.
The latter, whatever may be the phraseology employed in relation to the term
res gestae, involve questions of law, procedural or substantive. A narrative
extrajudicial statement of an agent will be received as an admission, if shown
to be suitably connected with the agency. 78 Otherwise it will generally be
rejected. 79
965. [Narrative Excluded] ; Remoteness. 80 It has been settled by authority
both in England and in the States of the American Union that there is an
important administrative difference between a narrative statement and one
which simply relates to a past transaction. In other words, a spontaneous
utterance may, and indeed usually does, relate to a fact which is past in point
of time. So long as the controlling effect of the res gestae or probative fact
upon the will of the declarant, has not so far ceased to operate as to make it
reasonable to feel that the stage of automatic utterance has been replaced by
that of self -consciousness, the statement is not to be regarded as narrative. 81
It is doubtful whether any more definite rule can well be formulated as to the
precise point of time or causation at which the so-called " principal fact " can
be said to be too remote from the statement offered in evidence, for the latter to
be regarded as spontaneous. 82
966. Range of Spontaneous Statements; Probative Facts Preceding the Res
Gestae. 83 The effect of the modern extension of the term res gestae in such a
way as to embrace not only the res gestae, but also the probative facts, by which,
in the absence of direct evidence, it is sought to reproduce, circumstantially, the
former or constituent facts, has resulted in depriving the phrase res gestae of
any very definite meaning. As at present generally used the phrase res gestae,
75. People v Simonds. ] Cal 275 '1861 ) : ingr Co., 172 U. S. 401, 19 S. Ct. 233, 43 L. ed.
State v Davis, 104 Tenn .VI 1. ">S S. W. 122 492 (1899).
(1900) ; McGee v. State, 31 Tex Cr App. 71, 79. f'onnectinit. Morse v. Consolidated
19 S. W. 764 (1892); Johnson v. State, 8 Ry Co., 81 Conn. 395, 71 Atl 553 (1908).
Wyo. 494, 58 Pac. 761 (1899). 80. 4 Chamberlayne, Evidence, 3025.
76. American Law Review, XV 80 (1881), 81. State v. Alton. 105 Minn., 410, 117 N.
per Professor James Bradley Thayer. W 617. 15 Am. & Eng. Ann. Cas. 806 (1908)
77. 4 Chamberlayne, Evidence. 3023. 82. Soto v. Territory, 12 Ariz. 36. 94 Pac.
3024. 1104 (1908) ; State v. Blanchard. 108 La. 110,
78. Sonnentheil v. Christian Moerlein Brew- 32 So 397 (1902).
83. 4 Chamberlayne, Evidence, 3026.
967,968 HEARSAY AS PRIMARY EVIDENCE; SPONTANEITY. 732
in connection with the relevancy of spontaneity now under consideration, is so
employed as to cover, not only the res gestae or constituent facts, properly so-
called, but also, with apparently entire indifference, those which precede and
those which follow a period of time at which alone any constituent fact could
have occurred. It occasionally happens that the reflective faculties of a person
are so numbed and stilled by some danger which is imminent or by dread of
something that is clearly about to take place that any statement made at the
time may properly be regarded as spontaneous. 84
967. [Range of Spontaneous Statements] ; Probative Facts Subsequent to the
Ees Gestae. 85 Probative facts, the office of which is to throw light backward,
as it were, upon the nature of the actual res gestae, are receivable in evidence,
upon ordinary principles. Among these may properly be extrajudicial state-
ments, employed either in an independently relevant capacity or as spontaneous
utterances. In the first case, the probative effect is produced by reason of the
mere existence of the declaration, suitable relevancy being shown. A spon-
taneous utterance is evidence of the truth of the facts asserted in the decla-
ration.
Criminal cases offer the most conspicuous field for the application of this
rule 86 as the parties are most often under excitement and in such cases even,
explanations bv the accused of his conduct are often admitted 87 as in homicide
*
cases 88 as well as larceny. 89 In a poisoning case the prosecution is permitted
to show practically everything said by the injured person regarding the admin-
istration or operation of the poison from the time it was first introduced into
the system of the deceased until death ensues. 90
968. [Range of Spontaneous Statements] ; Accusation in Travail. 91 The
presence of an element of spontaneity may affect the probative force of a so-
called declaration in travail. It has long been held that the mother of an
illegitimate child might accuse the putative father at the time of her travail, 92
84. In a prosecution for assault with intent 87. Slay v. State (Tex. Cr. App. 1907), 99
to kill, evidence that as the wife of the S. W. 550.
victim opened a door at the time of the 88. Carwile v. State, 148 Ala. 576, 39 So.
shooting, her child said "Look! there is 220 (1905).
Uncle Isaac and Uncle Jesse going to shoot 89. Bennett v. People, 96 111. 602 (1880).
us! " was properly admitted. Shirley v. 90. People v. Benham, 63 X. Y. Suppl. 923,
State, 144 Ala. 35, 40 So. 269 (1906). On 30 Misc. 466, 14 X. Y. Cr. Rep. 434 (1900).
an inquiry regarding the death of a person, a 91. 4 Chamherlayne, Evidence, 3033.
letter written by him stating an intention to 92. The time of travail, as this phrase is
commit suicide has been admitted. Rogers employed by the legislature has been held to
v Manhattan Ins. L. Co., 138 Cal. 285, 71 Pac. mean the period of labor-pain prior to the
348 (1903). birth of the child. Bacon v Harrington, 5
85.4 Chamberlayne, Evidence, 3027- Pick. (Mass.) 63 (1827) ; Com. v. Cole. 5
3032. Mass. 517 (1809). See, also. Scott v. Dono-
86. Green v. State, 154 Ind. 655, 57 N. E. van, 153 Mass. 378, 26 X. E. 871 (1891);
637 (1900); State v. Spivey, 151 N. C. 676, Tacey v. Xoyes, 143 Mass. 449, 9 X. E. 830
65 S. E. 995 (1909). (1887); Long v. Dow, 17 X. H. 470 (1845).
733 RANGE. 969
and that the statement so made might be received in evidence on affiliation pro-
ceedings as proof of the fact asserted. 93
969. [Range of Spontaneous Statements] ; Declarations of Complainant in
Rape. 94 Criminal proceedings to punish for rape, attempts at rape, indecent
assault and the like present peculiar problems of judicial administration, which
have been recognized since early times. The peculiar nature of the offence, the
circumstances which usually surround its com mission, the sex of the injured
party, and her natural reticence to speak of it tend to make proof difficult and
lead to a relaxation of strict rules of evidence. The result has been the devel-
opment of a unique rule, 95 or perhaps what would better be termed a principle,
as there can hardly be said to exist a settled rule, at least, a uniform rule. The
courts have all recognized the principle that, notwithstanding the general rule
that a party's self-serving declarations may not be introduced in evidence by
him, in this instance there should be an exception. They have differed in the
manner of applying this principle and in the latitude to be given to the ex-
ception.
The mere fact that the injured party had made a complaint to a proper
person in seasonable time is all that has been allowed in many cases. This was
permitted to be shown by both the complainant and by the person to whom the
complaint was made. 96
In other cases, the fact s of the complaint and the particulars thereof have
been shown as part of the case-in-chief of the prosecution ; but the particulars
were not admitted as proof of the facts complained of. They were purely for
the purpose of corroborating the prosecutrix' in anticipation of impeachment ;
or for the purpose of determining the conflict of veracity frequently arising in
such cases between the complaining witness and the accused; or to anticipate
the adverse inference upon which the defendant would rely, if no proof of a
complaint by his accuser were offered.
A rule which has been adhered to in many cases allows the fact that a com-
plaint was made to be shown in the case-in-chief of the prosecution ; and. if any
attempt is made by the defence to impeach the credibility of the prosecutrix,
then the particulars of the complaint may be shown. Here, again, the particu-
lars are admitted solely for corroborative purposes. They are not considered
any proof of the facts asserted by them. The question of the extent to which
the impeachment of the prosecutrix must go before the particulars of the com-
93. Bacon v. Harrington, 5 Pick. (Mass ) Thayer on Bedingfield's case in 14 Amer. Law
63 (1827). Rev. at page 830.
94. 4 Chamberlayne, Evidence, 3034. 96. " In R. v. Stroner. 1 C. & K 650 (1845),
3035. Admissibility of prompt complaints in the prosecution was compelled by the court
rape. See note. Bender, ed . 104 X. Y. 493. to call the woman to whom the complaint was
95. For some statement of the historical made, although she was at the time in at-
basis upon which the anomalous rule with tendance as a witness for the accused." 14
regard to rape rests, see article of Prof. J. B. Amer. Law Rev. p. 830 n.
970,971 HEARSAY AS PRIMARY EVIDENCE; SPONTANEITY. 734
plaint are admissible seems not to have been very clearly indicated by the
authorities.
Lastly, the fact of the complaint, together with its details, are frequently
admitted as spontaneous statements under a true exception to the hearsay rule.
The entire evidence is given as part of the ease-iu-chit-f of the prosecution.** 7
The earlier English decisions allowed the fact that the alleged outraged
woman had made a complaint to be shown, but excluded the particulars of such
complaint. <JS The later decisions modified this view and the present rule in
England admits both the fact of the complaint and its particulars; but the
latter are not admitted as proof of the facts complained of. They are received
solely for the purpose of showing consistent conduct oil the part of the prose-
cutrix and to corroborate her testimony. The particulars of the complaint are
admitted on the examination-in-chief of the witnesses for the prosecution. 9a
970. [Declarations of Complainant in Rape] ; American Rule. 1 The various
courts of the United States are not all in harmony in their attitude toward the
admissibility of the declarations of the complainant in a case of rape. The
mere fact that a complaint was made to a proper person within a reasonable
time is uniformly held to be admissible as part of the case-in-chief of the prose-
cution for the purpose, it is commonly said, of corroborating the prosecutrix. 2
As to whether the particulars of the complaint can be shown as part of the case-
in-chief of the prosecution, there is a clear and marked division of opinion. In
the large majority of the jurisdictions, the details or particulars of the com-
plaint caunOt be shown in the first instance, 3 while in a few jurisdictions the
modern English rule is followed and both the fact that a complaint was made
and its full details are admitted upon the direct examination of the witnesses
for the prosecution. 4 The defence may draw out the particulars of the com-
plaint upon the cross-examination of the people's witnesses. 5 However, in
some jurisdictions, where the details of the complaint are rejected in the first
instance, it has been held that, if the defense attempts to impair the credibility
of the prosecutrix, the full details may be shown by way of rebuttal for the
purpose of corroborating her.
971. [Declarations of Complainant in Rape] ; Independent Relevancy; Failure
97. Sodomy. Upon principle it would seem 1. 4 Chamberlayne, Evidence, 3036-
that the rules of evidence applicable in rape 3039.
cases would be equally applicable in sodomy 2. People v. Wilmot, 139 Cal. 103, 105. 72
cases, where the victim does not consent Pac 838 (1903)
This has in effect been held in a case where 3. People v. Weston, 236 Til. 104, 86 N. E.
the victim was a boy four year of age. Soto 1S8 (1908).
v. Territory, 12 Ariz 36. 94 Pac. 1104 (1908) 4. Hornbeck v. State. 35 Ohio St. 277, 35
98. Rev. v. Mercer, 6 Jur. 243 (1842). Am. Hep. 608 (1879)
99. Rex v Osborne, 74 L J. K B 311, 1 5. Huey v. State, 7 fta. App 398. 60 S. E.
K. B. 551, 92 L. T 393, 53 W. R. 494, 69 1023 (1910).
J. P. 189, 21 L. T. R. 288 (1905). 6. Pulley v. State. 174 Ind. 542, 92 N. E.
550. (1910).
735 RAPE. 972
to Complain. 7 So natural is the spontaneous impulse to disclose the fact and
nature of the injury in this class of cases that any delay in making such a com-
plaint not shown to be due to the presence of some adequate cause will almost
inevitably suggest the inference of subsequent fabrication and invention. A
forensic necessity, therefore rests upon the prosecution to explain, to the satis-
faction of the jury, the reason for any delay which might otherwise seem un-
reasonable. 8
It is obvious from what has been said that the administrative reasons which
permit the independently relevant fact of a complaint to be received in evidence
require not only that the statement should be freshly made but also that it
should be voluntary. Where the condition of the complainant is such as to
compel explanation, or the explanation is demanded by interested persons in
the form of questions 9 there is no such voluntary complaint as tends to negative
the inference of consent which has arisen from previous silence. However, in
view of the peculiar nature of the crime of rape and the situation of the injured
party after its commission, the complaint is not under all circumstances ex-
cluded because made in response to questions. 10
972. [Declarations of Complainant in Rape]; The Element of Time; Inde-
pendent Relevancy. 11 The early English law requiring " hue-and-cry " was
designed to afford immediate notice to the community of the commission of a
crime that instant pursuit might be made and the. offender apprehended. In
rape, as in other crimes, a fresh complaint was demanded; i.e., piily a short
interval could be permitted to elapse between the doing of the deed and the
making of the complaint. So far as the fact of complaint is one of independent
relevancy, the same strictness of requirement as to length of time between
offence and complaint is not made under the modern rule. 12 The use of the
fact of complaint is, in this connection, a corroborative one, operating by the
removal of the inh'rmative explanation of subsequent invention. To be rele-
vant in this respect, a complaint must have been made within such a time after
the occurrence that it may reasonably be held to negative in some degree the
alternative theory of fabrication. 13
Where the detailed statements of the complainant are used in their hearsay
capacity as primary evidence of the facts asserted the same requirement of
immediate complaint is made, but the reason for it is entirely different. Fresh
7. 4 Chamberlayne, Evidence, 3040, 11. 4 Chamberlayne, Evidence, 3042,
3041. 3043.
8. Com v. Rollo, 203 Mass. 354, 89 N. E. 12. State v. Bebb, 125 Iowa 494, 496, 101
556 (1909) ; People v. Marrs, 125 Mich. 376, N. W. 189 (1904), per Bishop, J
84 N. W. 284 (1900). 13. State v. Bebb, 125 Iowa 494, 101 N. W.
9. Cunningham v. People, 210 Til. 410, 413, 189 (1904) ; Cowles v. State. 51 Tex. Cr. App.
71 N. E 389 '1004), per Hand. J. 498, 102 S. W. 1128 (1907) (after defendant's
10. State v. Dudley, 147 Iowa 645, 126 N. arrest).
W. 812 (1910) : State v. Peres, 27 Mont. 358,
71 Pac. 162 (1903).
973,974 HEARSAY AS PEIMAEY EVIDENCE; SPONTANEITY. 736
complaint is required, not for the purpose of securing pursuit and apprehen-
sion of the offender nor even for the later and still common purpose of cor-
roboration, 14 but in order that the resulting statement may be spontaneous and,
accordingly furnish evidence of the facts declared in it.
973. [Range of Spontaneous Statements] ; Declarations of Owner on Discover-
ing Larceny, etc. 15 Worthy of note among spontaneous utterances which fol-
low the general rule now under consideration are the declarations of owners of
property made shortly after it has been taken from their possession, by violence
or otherwise. Where the conditions of spontaneity are present, these extra-
judicial statements may be received as proof of the facts asserted. 1 ' 5 On the
other hand, a failure to complain with reasonable promptness may well afford
ground for a doubt as to the good faith of a present charge. 17
974. [Range of Spontaneous Statements] ; Personal Injuries. 18 A common
application of the rules relating to the use of unsworn spontaneous statements
as proof of the facts asserted is found in those cases where action is brought to
recover damages for personal injuries. 19 In a typical case, the attendant ex-
citement, the bodily pain or mental anguish consequent upon the injury, the
unwonted importance temporarily attaching to the injured person himself con-
stitute a combination of influences calculated to drive from the mind of a
sufferer thoughts of premeditation or invention. As was said by the supreme
court of Xew Hampshire: "When a person receives a sudden injury, it is
natural for him, if in the possession of his faculties, to state at once how it
happened. Metaphorically, it may be said, the act speaks through him and
discloses its character." 20 After an interval, however, of greater or less dura-
tion according to the circumstances of the case, the question is sure to occur to
the victim of the accident. Who is responsible for this pain which I am suf-
fering; who will recompense me for my other injuries? With this, or some
similar act of introspection, the state of deliberated utterance may be assumed
to begin.
The declarations may be those of the person injured 21 or those of the party
sought to be held liable or his agent, employee or representative. 22 In some
instances the declarations of third parties or bystander* have been received. 23
That an unsworn statement made under such circumstances as render it spon-
14. People v. Row, 135 Mich. 505. 08 X W. 20. Murray v Boston & M. R Co., 72 X. H.
13, 10 Detroit Leg. X. 841 (1004) (three 32, 37, 54 Atl. 280, 61 L. R. A. 405, 101 Am.
months). St Rep. 650 (1003), per Walker. J.
15. 4 Chamberlayne, Evidence. 3044. 21. Muren Coal & Ice Co. v. Howell, 217
16. Illinois. Goon Bow v. People, 160 111. 111. 100, 75 X. E. 469 (1005).
438, 43 X. E. 593 (1806). 22. Hyvonen v. Hector Iron Co., 103 Minn.
17. Tompkins v. Saltmarsh, 14 Serg. & R. 331, 115 X. W. 167, 123 Am. St Rep. 332
(Pa.) 275, 280 (1826). (1008).
18. 4 Chamberlayne, Evidence, 3045. 23. Cromeenes v. San Pedro, L. A. & S L.
19. Muren Coal & Ice Co. v. Howell, 217 111. R Co., 37 Utah 475, 109 Pac. 10, 24 Am. &
190, 75 N. E. 469 (1905) Eng. Ann. Cas. 307 (1910).
737 WEIGHT, 9~ Fi
taneous reveals an apparent element of inference on the part of the speaker 24
does not necessarily furnish ground for rejecting the declaration.
It scarcely need Le said that, if the elements of spontaneity were present in
the making of an unsworn statement, the fact that it was made to a physician
cannot affect its admissibility, the statement being received, in accordance with
the general rule, as proof of the facts therein stated.
It is a well-settled general rule that statements to a physician concerning
present pain, suffering and physical condition generally, made with a view tc
obtaining treatment and relief are admissible in evidence as proof of the pa-
tient's condition at the time the statements were made. 25
The facts shown by the articulate utterances of the patient should be those
reasonably essential to a proper diagnosis of his state or condition, 26 collateral
matters ~~ such as the name of an assailant 2S or an assertion as to the instru-
ment with which an assault was committed 29 not being regarded as properly
included.
Statements as to past bodily or mental condition cannot be regarded as ad-
missible under the present rule. 30 It has, however, been decided that state-
ments of past pain and suffering made to a physician, when necessary to a cor-
rect diagnosis, may be testified to by the physician ; 31 but that they must not
be considered by the jury as evidence tending to show the fact of such pain and
suffering. 32 The wisdom of such a rule may be doubted as its application by
the court and jury must clearly be difficult.
Statements made to a physician for the purpose of enabling the latter to
testify as an expert in favor of the declarant are usually excluded for adminis-
trative reasons. 33
975. Probative Weight of Spontaneous Statements. 34 The probative force
of a spontaneous utterance clearly lies in the elimination of any controlling
motive to misrepresent the truth. The operation of the reflective faculties,
with their possible perversions of self-interest, has been replaced by the men-
tally automatic, closely analogous to the exactness of natural law. This judi-
24. State v. Morrison, 64 Kan 669, 68 Pac. 84 (1892) ; Denton v. State, 1 Swan (Tenn.)
48 (1902). 279 (1851).
25. Chicago City Ry. Co. v. Bundy, 210 Til. 30. Davidson v Cornell, 132 N. Y. 228, 30
39, 71 X. E. 28 (1904). N. E. 573 (1892).
26. Statements of third persons are not 31. A statement by a slave to his attending
deemed proper constituents upon which to physician that he had been ill for the past
base tiie diagnosis of a physician. Atchison. three weeks was received as proof of that
etc, R. Co v. Frazier, 27 Kan. 463 (1882) fact. Yeatman v Hart, 6 Humphr. (Tenn.)
(husband): Heald v. Thing, 45 Me. 392 374(1845). See, also, Looper v. Bell, 1 Head
(1858) iwife). (Tenn.) 373 (1858).
27. Richards v. Com., 107 Va. 881, 59 32. Wilkins v. Brock, 81 Vt. 332, 70 Atl.
S. E. 1104 (1908). 572 (1908): Acme Cement Plaster Co. v.
28. People v O'Brien, 92 Mich. 17, 52 N. Westman fWyo. 1912). 122 Pac. 89.
W S4 ( 1892) . 33. Shaughnessy v. Holt, 236 111 485, 86 N.
29. Collins v. Waters, 54 111 485 (1S70) ; E. 256, 21 L- R. A. (N. S.) 826 n. (1908).
People v. O'Brien, 92 Mich. 17, 52 N. W.
976 HEABSAY AS PKIMARY EVIDENCE; SPONTANEITY. 738
cial administration trusts, it being assumed that the declarant has stated the
truth as it appears to him. 35 That the statement is self-serving does not con-
stitute a necessary ground for its rejection, and one against the interest of the
declarant in the nature of a confession need not be shown to have been volun-
tary as that term is commonly used in connection with alleged confessions by
those accused of crime, 36 its admissibility resting upon an entirely different
basis. In like manner, the spontaneous statement of a person about to die
may take the place of a dying declaration, properly so-called, 37 even in a
civil case. 3 *
976. Who Are Competent Declarants. 30 Determining the admissibility of
extra judicial statements from the standpoint of the competency of the declarant
to make the particular statements in question has often taxed administrative
judgment. The competency of the declarant may be affected by his age,
mental capacity, knowledge of the subject-matter, relation to the main trans-
action, and the like. It may be laid down as a broad general rule from which
there is little dissent and from which, on principle, there can be dissent only
in cases where the circumstances are unusual, that a spontaneous declaration
is admissible in and of itself without regard to the person making it. This
necessarily follows as a result of the basis of admissibility, such declarations
being received because of their automatic unpremeditated character. There-
fore, the spontaneous declarations of a child too young to be sworn as a wit-
ness, 40 an agent or representative of one of the parties, 41 a bystander who wit-
nessed the main transaction, 42 particularly when related to or having a special
interest in one of the parties, 43 or an adult person of sound mind who is not
sworn as a witness because of incompeteucy 44 or otherwise are ordinarily re-
ceived as evidence of the facts declared. It has even been indicated that the
spontaneous declarations of an insane person are admissible. 45 This no doubt
is a sound view where it does not appear that the person was insane when the
declarations were made, although he is insane at the time of the trial. 40 Obvi-
34. 4 Chamberlayne, Evidence, 3048, 40. Grant v. State, 124 Ga. 757, 53 S. E.
3049. 334 (1906).
35. State v. Alton, 105 Minn. 410, 417, 117 41. Ensley v. Detroit United R. Co., 134
N. W. 617, 15 Am. & Eng. Ann. Cas. 806 Mich. 195, 96 N. W. 34 (1903)
(1908), per Lewis. J. 42. Smith v. State, 10 Ga. App. 36, 72 S. E.
36. Allen v. State, 60 Ala. 19 (1877); 527 (1911).
Head v. State, 44 Miss. 731 (1870) ; Miller 43. People v. McArron, 121 Mich. 1, 79 N.
v. State, 31 Tex. Cr. App. 609, 21 S. W. W. 944 (1899) ( mother of accused ).
925, 37 Am. St. Rep. 836 (1893). 44. Dunham v. State, 8 Ga. App. 668, 70
37. State v. Morrison, 64 Kan. 669, 68 Pac. S. E. Ill (1911) (wife of accused, incompe-
48 (1902): People v. Del Vermo, 192 X. Y. tent); Flores v. State (Tex. (V. App. 1904),
470, 85 N E. 690 (1908). 79 S. W. 808 (convict).
38. Brownell v. Pacific R Co, 47 Mo. 239 45. Wilson v State, 49 Tex. Cr. App. 50, 90
(1871) (negligence); Jack v. Mutual, etc., S. W. 312 (1905).
Life Assn., 113 Fed. 49, 51 C. C. A. 36 (1902). 46. The fact that the prosecuting witness
39. 4 Chamberlayne, Evidence, 3050. in a case of robbery was insane, and, there-
for, incompetent as a witness, at the time of
739 DECLARANTS. 976
ously, however, sound administration must sometimes exclude what is appar-
ently a truly spontaneous utterance because of attendant circumstances which
make the evidence unreliable, as, for example, the mental incapacity of the
declarant 4T or the admitted physical conditions under which the declaration
was made." 18
In rape cases, and those of similar nature, there is an apparent confusion
among the authorities as to the competency of the injured female to make a
statement of complaint which is receivable in evidence. 49
A reasonable rule which would avoid all uncertainty seems easy to formu-
late. The bare fact that a complaint was made is an independently relevant
circumstance and does not depend for its probative force upon whether or not
the complainant is sworn as a witness. Such fact, without the details of the
complaint, should be shown to the jury in all cases, except possibly in cases
where the length of time which elapsed before the complaint was made clearly
justifies the trial judge in regarding the evidence as worthless. Where the
complaint was spontaneous, the details should, of course, be received also.
trial which took place more than two months mother after an assault of which he was the
after the robbery, is no ground for excluding victim, with respect to the assault, may be
his spontaneous declarations made shortly received in evidence notwithstanding the fact
after the robbery. State v. Smith, 26 Wash. that he is too young to be competent to testi-
354, 67 Pac. 70 ( 1!)01 ) . fy. Soto v. Territory. 12 Ariz. 36, 94 Pac. 1 104
47. Adams v. State, 34 Fla. 185. 15 So. 905 (1908). In an action for assault with intent
(1894) (child three and a half years old too to commit rape on the person of a female,
young to be reliable) who, by reason of being an imbecile, was in-
48. Regnier v. Territory. 15 Okla. 652, 660. competent to testify, the declarations of such
82 Pac. 509 (1905) (where declarant, had not female made after the assault are inadmissi-
aeen assailant who had shot from ambush) ble. Hornbeck v. State, 35 Ohio St. 277, 35
49. The statement of a child, made to his Am. Rep. 608 (1879).
CHAPTER XLV.
HEARSAY AS PRIMARY EVIDENCE; RELEVANCY OF REGULARITY.
Shop book rule, 977.
Administrative requirements; Necessity, 978.
relevancy; adequate knowledge, 979.
absence of controlling motive to misrepresent, 980.
suppletory oath, 981.
books must be those of original entry, 982.
corroboration aliunde, 983.
entry must be intelligible, 984.
entry on book account must have been a routine one, 985.
facts creating suspicion, 986.
identity of book must be established, 987.
y .< '
material used, 988.
original must be produced, 989.
Scope of evidence, 990.
nature of charges; special contract, 991.
other matters, 992.
nature of occupation, 993.
who may be charged, 994.
Weight, 995.
977. Shop Book Kule. 1 The shop book rule is that the account-books of a
party, supported by his suppletory oath are admissible in evidence to show a
sale or delivery of goods or the performance of services. 2 The rule was a
necessity under the old rule that a party could not be a witness for himself as
where a shopkeeper had no clerk there was no way of proving the account except
through the books 3 and this practice was early recognized by statute and in
the eighteenth century entries made by deceased clerks began to be received. 4
The rule was early adopted in the Xew England States but was made subject
to certain modifications or restrictions as to the amounts covered by the entries 5
but the books were admitted when supported by the suppletory oath. 6 New
1. 4 Chamberlayne, Evidence, 3051- 4. Pitman v. Maddox, Holt N. P. 298, 2
3063. Salk. 600, 2 Ld. Kaym. 732 (1698).
2. Pratt v. White, 132 Mass 477 (1882) 5. Terrill v. Beecher. 9 Conn. 344 (1832);
3. Conklin v. Stamler, 8 Abb. Prac. ( X. Y.) Davis v. Sanford, 9 Allen (Mass ) 216 (1864).
395, 2 Hilt. 422, 17 How. Prac. 399 (1859) ; 6. Sheehan v Hennessey, 65 N. H. 101, 18
Cole v. Dial, 8 Tex. 347 (1852). Atl. 652 (1889).
740
741 NECESSITY. 978
York and New Jersey also early adopted the rule but the suppletory oath was
not required in those states. 7
A shopbook thus received in evidence becomes primary and independent evi-
dence of the facts stated therein though used in a hearsay capacity. 8 The rule
is not founded on the principle that the entries are a part of the res gestae but
on the theory that a system of accounts demands accuracy and accuracy becomes
habitual with the person keeping such records.
The modern growth of business with the increase in the entries in account-
books made the proof of such items increasingly difficult and the early restric-
tion that the books must be used simply to refresh the recollection of the witness
was abandoned and the books received in evidence when the witness could
swear that the entries were correct when made although he had no memory
about the matter. 9
The difficulty, expense and frequent impossibility of making proof of book
accounts combined with legislative enactments and judicial rulings, have re-
sulted in a decided broadening of the " shop book " rule. The rule, in its first
stage of development, although frequently designated by its original name, has,
in most jurisdictions, been modified by removing every limitation iu regard to
the amount involved in the transaction and allows, under the old conditions
prescribed by the " shop book " rule, original entries in the books of account of
persons engaged in all lines of business, professional lines included, made in
the usual course of business, as a contemporaneous record of current trans-
actions, by a party or his agent or employee, to be introduced in evidence, with-
out regard to whether such record is in favor of or against the party whose
transactions are recorded therein. 10
978. Administrative Requirements; Necessity. 11 The fundamental admin-
istrative necessity for receiving evidence of shop books lay in the circumstance
that as a rule indebtedness from small transactions could be proved in no other
way under the ancient rule that a party could not be a witness in his own
behalf ia and it was formerly necessary that the party should prove that he
had no clerk or assistant who could testify. This might be shown by proving
that there was no clerk t3 or that he was dead, 14 insane 15 or otherwise unavail-
7. Sickles v. Mather, 20 Wend. (X. Y.) 72, traders who kept no clerks." Smith v. Rentz,
32 Am. Dec. 521 (1838). 131 N. Y. 169, 176, 30 X. E. 54, 15 L. R. A.
8. Place v. Parsons, 17 Wkly. Dig. (N. Y.) 138 (1892), per Andrews, J
293 (1883). 13. Smith v. Smith, 163 N. Y. 168, 57 N. E.
9. Halsey v. Sinsebaugh, 15 N. Y. 485 300, 52 L. R. A. 545 (1900) holding that a
(1857). clerk is one who had something to do with
10. The tendency of modern statutes is to and had knowledge generally of the business
enlarge the scope of the shop book rule. of his employer in reference to goods sold or
See for example Alass. St. 1H13, c. 288. work done so that he could testify on the sub-
11. 4 Chamberlayne, Evidence. 3065- ject.
3070. As a corporation must necessarily act by
12. " Tt was founded upon a supposed ne- clerks or other servants or agent?, it cannot
cessity and was intended for cases of small prove an account by means of the shopbock
979 SHOP-BOOKS. 742
able 16 and today wherever a reasonable necessity is shown for doing so the
evidence of the handwriting of the declarant will be received in lieu of his
verbal testimony. 17
979. [Administrative Requirements]; Relevancy; Adequate Knowledge. 18
As in case of other statements, judicial or extrujudicial, used in an assertive
capacity, i.e., as evidence of the facts alleged, it is required in case of the decla-
ration contained in a shop book, that it should be objectively and subjectively
relevant to the existence of some res gestae fact. Objective relevancy being
assumed as an essential prerequisite for all evidence, it may be said that, in
this connection as in others, the familiar elements of subjective relevancy are
two: (1) The declarant must have adequate knowledge as to the fact as-
serted; (2) He must be free from controlling motive to misrepresent. The
entrant must know of his own knowledge the truth of the transaction which he
enters, 19 and it is usually required that the clerk actually making the entry be
produced if he be available. 20
A short delay in making the entry will not cause its exclusion as where a
temporary record is made on a slate 21 where it appears that the delay will not
impair the knowledge of the entrant 22 but where other facts tending to show
impairment of knowledge are shown even a short delay may be sufficient to
exclude the entry. 23
Under the complicated conditions of modern business the person who makes
the entries seldom does anything else and is forced to rely for the accuracy of
what he states upon the information of those who have sold the goods, rendered
the services or done the other necessary parts of a completed transaction. In
such case it is proper to show the course of business and to prove by the evi-
dence of those who reported the facts that the reports were made by those who
had personal knowledge of them and that the reports were accurate and the
entries were accurately made from these reports. 24 The informant should be
rule. . Congdon v. Aylesworth Co. v. Sheehan, Shipman v. Glynn, 31 App. Div. (X. Y.) 425,
11 X Y. App Div. 456, 42 N. Y Suppl. 255 430, 52 N. Y. Suppl. 691 (1898), per Ward, J
(1896); Snyder v. Harris, 61 X. J. Eq 480. See also, Leask v Hoagland. 205 X. Y. 171.
48 Atl. 329 (1901). 98 X K. 3<>5, reversing judgment 128 N. Y.
14. Hutchins v Berry. 75 X. H. 416. 75 Suppl. 1017, 144 App. Div. 138; rehearing
Atl. 650 (1910). denied, 205 X. Y. 594, 98 X. E (1912).
15. Beattie v. McMullen, 82 Conn. 484, 74 20. Barnes v. Simmons, 27 111. 512, 81 Am.
Atl. 767 11909). Dec. 248 (1862).
16. Cook v. People. 231 111 9, 82 X. E. 863 21. Woolsey v. Bohn, 41 Minn. 235, 42 X.
(1907K W. 1022 (1889).
17. Xorth Bank v Abbot, 13 Pick. (Mass.) 22. Redlich v. Bauerlee, 98 111. 134, 38 Am.
465, 25 Am. Dec. 334 (1833). Rep 87 (1881).
18. 4 Chamberlayne, Evidence, 3071- 23. Forsythe v. Xorcross, 5 Watts (Pa )
3075 432, 30 Am. Dec. 334 (1836).
19. It should appear as to these entries 24. Atlas Shoe Co. v. Bloom, 209 Mass. 563,
that " they related to transactions within the 95 N. E 952 (1911).
knowledge of the persons making the entries."
743 MOTIVE TO MISREPBESENT. 980, 081
produced when possible but if lie is not available his attendance will be excused
in most States. 25
Where a book of original entries is kept by several persons the entries being
mingled each entrant may testify to the accuracy of the items he has himself
entered 2tJ but he may not testify to the correctness of items entered by his
associates. 27
980. [Administrative Requirements; Relevancy]; Absence of Controlling Mo-
tive to Misrepresent. -* The suggestion has been offered that, as an adminis-
trative matter, it should not only be made to appear that the entrant had actual
adequate knowledge, but also that he was without such a controlling motive to
misrepresent as would render it probable that he is not telling the truth. Such
a requirement might with greater propriety be insisted upon where the evidence
offered is secondary, e.g., entry of a deceased person in course of business, rather
than in cases where the evidence offered is primary in its nature. 29 However
this may be, it seems at least certain that there is no requirement that the entry
should be adverse to the pecuniary interest of the entrant. 30 The knowledge of
the declarant is greatest before distracting circumstances have intervened. The
motive to misrepresentation is reduced to a minimum where the possible conse-
quences of the statement in its bearing upon the interest of the speaker has not
as yet become apparent.
Contemporaneousness is one of the strongest factors in favor of the probative
force of an entry, which means within a reasonable time. What is a reason-
able time under the circumstances is a question of fact in each case 31 having
in mind the nature of the business. 32
An echo of the early shopbook rule is still to be found in the requirements
that the entries be those of charge and not of discharge, 33 and entries tending to
relieve a debtor will be rejected under this rule. Shopbook entries are not
properly classified as res gestae facts but are based rather on the automatism
of business as done in the modern way.
981. [Administrative Requirements] ; Suppletory Oath. 34 The suppletory
oath formerly required was that the books were regularly kept as a contempo-
raneous record of the daily doings of the business. 35 This form of oath has
been dispensed with and it is now necessary to show merely that the book is
25. Rothenberg v Herman, 90 X. Y. Suppl. 30. Augusta v. Windsor, 19 Me. 317 ( 1841).
431 (1904). 31. Mahoney v Hartford Inv. Corps, 82
26. Herriott v Kersey, 69 Iowa 111, 28 N. Conn 280, 73 At! 766 (1909).
W. 468 (1886). 32. Yearsley's Appeal, 4S Pa. St. 531
27. Whitley Grocery Co. v. Roach, 115 Ga. (1865) 'once a week sufficient).
918, 42 S. E. 282 (1902). 33. Riley v. Boehm, 167 Mass 1S3. 45 X.
28. 4 Chamherlayne, Evidence, 3706- E. R4(1S96).
3081. 34. 4 Chamberlayne, Evidence. 3082-
29. Lord v. .Moore, 37 Me. 20S (1854); 3084.
Kennedy v Doyle, 10 Allen (Mass.) 161 35. Vosburgh v. Thayer, 12 Johns (N. Y.)
(1865). 461 (1815).
982
SHOP-BOOKS.
744
admissible as being kept in the regular course of business. 30 Where the entrant
is available he should be produced and swear to the correctness of the entry 37
but if he is not available the book will be admissible on proof of his hand-
writing. 38
The shop-book may be used against the representatives of the deceased debtor
notwithstanding statutes forbidding a party to be a witness against the estate
of a deceased person. 39
-oM sflflloifnoj^lo 3o3gdA ; [^offAVdlsJ! ; ataamanupfrH 9viJ-iJannittf>A] .080
982. [Administrative Requirements] ; Books Must be Those of Original
Entry . 40 One of the administrative requirements in connection with the ad-
mission of the shop book in evidence is that it must be the book of original
entries, that is, the book in which the entries were first permanently made. 41
For this purpose temporary memoranda are not regarded as original entries
and need not be produced where the books are made up from them at once as
they are regarded simply as methods for refreshing the recollection of the
entrant. 42 The books may be in any form which does not throw such discredit
on its accuracy and good faith as to deprive it of all reasonable probative force. 43
The books may be in day book 44 or ledger form. 45 Shop books within the rule
36. Smith v. Smith, 163 X. Y. 168, 57 N. E
300, 52 L. R. A. 545 (1900).
37. Townsend v. Coleman, 18 Tex. 418, 20
Tex. 817 (1857).
38. Leighton v. Manson, 14 Me. 208 (1837) ;
Odell v. Culbert, 9 Watts & S. (Pa.) 66, 42
Am. Dec. 317 (1845). See Seaboard Air L.
Ry. v. Railroad Commr's, 86 S. C. 91, 67 S.
E. 1069, 138 Am. St. Rep. 1028 (1910).
Handwriting of accounts in books immaterial.
See note, Bender, ed., 17 X. Y. 72. Proving
books of account. See note, Bender, ed., 102
X. Y. 583. Right to testify to entries. See
note, Bender, ed., 01 X. Y 530.
39. Post v. Kenerson, 72 Vt. 341, 47 Atl.
1072 (1000).
40. 4 Chamberlayne, Evidence, 3085-
3095.
41. Frick v Kabaker, 116 Towa 494, 90
X. \Y. 498 (1902).
42. Smith v Smith, 163 X Y 16S, 57 N E
300 (1900).
43. Miller v Shay, 145 Mass. 162, 13 X. E.
468, 1 Am. St. Rep. 449 (1887).
44. \Yay v. Cross, 95 Iowa 258, 63 X W.
691 f!895)
45. Schlicher v \Yhyte, 74 X. J Eq. 839,
71 Atl 337 (190S)
Original reports missing. The testimony
of the bookkeeper is sufficient to prove the
contents of a ledger of a large mercantile
house where it is impossible to prove the
original reports from which the ledger was
made up or where the number of employees
was so great that it would be impractical to
produce them all to testify that they made
true reports to the bookkeeper. Givens v.
Pierson, 167 Ky. 574, 181 S. \Y. 524. A
record book of car equipment kept by railroad
officials as the result of reports made from
time to time is admissible in evidence to show
the condition of the cars at the time of their
destruction and their value, The fact that
the original reports are not put in evidence
does not bar them as the original reports
were made by many men and it would be
impossible to put all these men on the stand
especially as the work on the cars is done by
various gangs of men and it is impossible
to tell just who did the work or made the
reports. The fact that they were made in
the regular course of business seems to be
enough. Pittsburgh C. C. & St. L. R. Co.
v Chicago, 242 111 178. 89 X. E. 1022, 44
L. R. A. (X S.) 358 (1909).
The record book of a physician constituting
his book of original entries and charges is
original and primary evidence when proved
by the living entrant and is evidence of a
very high class when proven to have been con-
temporaneous with the transaction and
where there could have been no motive to
misrepresent, and may be Tised to show the
date of birth of a child Griffith v. American
745 COEBOBOEATION. 983,984
do not include check-stubs 46 or collection registers, 47 diaries, 48 or other memo-
randa but will include time-books. 49
Entries are usually admitted though not dated 50 but where the charges are
lumped in one item they may be properly refused admission. 51 It is not fatal
to the entries that they are on separate sheets of paper. 52
983. [Administrative Requirements] ; Corroboration Aliunde. 53 The pre-
siding judge is justified in requiring that the plaintiff reinforce the effect of
his book by showing facts tending to establish its accuracy and his own
care in keeping it. Even without this evidence, the presiding judge may
admit the book de bene, i.e., conditional upon corroboration of this nature
being subsequently furnished. If this corroboration be not supplied, the judge
may reject the book, as his final action in the matter. 54 Corroborative proof
must be given 55 by evidence independent of the book itself.
This corroboration may be made by the testimony of an employee 56 or of
other customers that the plaintiff kept honest books 57 when they have seen
and settled by the books themselves. 58 It must be shown by evidence aliunde
that the goods were delivered or the services were rendered. 59
984. [Administrative Requirements] ; Entry Must be Intelligible. 60 The
court may well insist that the book of account, to be admissible, should have
been so kept as to be clear and intelligible upon inspection. He may accord-
Coal Co. 75 W. Va. 686, 84 S. E. 621, L. K. A. 52. Jonesboro, L. C. & E. R. Co. v. United
1915 F 803 (1915). Iron Wks. Co., 117 Mo. App. 153, 94 S. W.
ledger cards used by plaintiff in its system 726 (1906).
of bookkeeping which constitute its original, 53. 4 Chamberlayne, Evidence, 3096-
permanent and only records of accounts with 3099.
its customers are admissible in evidence when 54. '' The judge could not know, until the
properly authenticated. Haley & Lang Co. v. end of the trial, what corroborating evidepce
Vecchio, 36 S. D. 64, 153 N. W. 898, L. R. A. there would be; and after the evidence was
1916 B 631 (1915). The courts seem prop- all in, it was proper for the court to decide
erly to regard such sheets as account books upon the competency of the book: This is a
under the statutes when kept as part of a species peculiar in its nature, of the compe-
fegular system, tency of which, in each case, the court must
46. Leask v. Hoagland, 205 X. Y. 171, 98 decide." Henshaw v. Davis, 5 Cush. (Mass.)
X. E. 395 (1912), reversing judgment, 128 145 (1849).
X. Y. Suppl. 1017. 144 App. Div. 138; rehear- 55. Conklin v. Stamler, 2 Hilt. (N. Y.)
ing denied. 205 X. Y. 594, 98 X. E. 1106. 422, 8 Abb. Prac. 395, 17 How. Prac. 399
47. U. S. Bank v. Burson, 90 Towa 191, 57 (1859).
X. W. 705 (1894) ; Larabee v. Klosterman, 33 56. Matter of McGoldrick v. Traphagen, 88
Xeb. 150, 50 X. \V. 1102 (1891). N. Y. 334 (1882), overruling Hauptman v.
48. Barber's Appeal, 63 Conn. 393, 410, 412, Catlin, 1 E. D. Smith (X. Y.) 729 (1854).
27 Atl. 973, 22 L. R. A. 90 (1893) ; Hutchins 57. Smith v. Smith, 163 X. Y. 168, 57 N:
v. Berry, 75 X. H. 416, 75 Atl. 650 (1910). E. 300, 7 X. Y. Annot. Cas. 470, 52 L. R. A.
49. Dicken v. Winters, 169 Pa. St. 126, 32 545 (1900), affirming 13 App. Div. 207, 43
Atl. 289 (1895). X. Y. Suppl. 257 (1897).
50. Doster v. Brown, 25 Ga. 24, 71 Am. 58. Matter of McGoldrick v. Traphagen, 88
Dec. 153 (1858). X. Y. 334 (1882).
51. Putman v. Grant, 101 Me. 240, 63 Atl. 59. Maine. Godfrey v. Codman, 32 Me. 162
816 (1906). (1850).
'J85, 986 SHOP-BOOKS. 746
ingly decline to receive evidence of a charge kept by arbitrary signs the
meaning of which is known only to the proponent." l The entry, however, need
not be absolutely clear on its face to oue nut acquainted with the usages of a
particular business or calling. A charge of this nature may be explained by
those having special knowledge on the subject. 02 For example, a physician
may, in satisfactory compliance with the rule, make his entries in the ordinary
shorthand employed in his profession.* 53 The entry need not be in any par-
ticular language 04 or form of bookeepiug.' 53 Abbreviations may even be
used, in which case their meaning may be explained. 60
985. [Administrative Requirements] ; Entry on Book Account Must Have
Been a Routine One. 07 It is essential that the entry be one made in the regular
course of business 8 and it must be the entrant's duty to make a record of the
precise thing which he has recorded 09 and the same rule should be applied
where several entries are involved in the same transaction. 70
The nature of the business may have a bearing on whether it is a matter
of routine or not. The banking business for example presents conditions fa-
vorable for grounding a rational inference of automatism 71 while a train regis-
ter might be held not to be within the principle. 72
986. [Administrative Requirements] ; Facts Creating Suspicion. 73 The pre-
siding judge may, in the exercise of his power of administration, exclude a
shop book where either from its condition or appearance or from other evidence,
there are circumstances which, unexplained, are such as to create a suspi-
cion that it is not a true record of daily transactions in the routine of busi-
ness, 74 as where entries covering a period of several years appear, from the
60. 4 Chamberlayne, Evidence, 3100. admissible where not kept as a duty or in the
61. Remick v. Rumery, 69 N. H. 601, 45 regular course of business. All authorities
Atl. 574 ( 1899) . seem to require that the entries must be made
62. Fulton's Estate, 179 Pa. St. 78, 35 Atl. in the regular course of business. Arnold v.
880, 35 L. R. A. 133 (1896). Hussey, 111 Me. 224, 88 Atl. 724, 51 L. R. A.
63. Bay v. Cook, 22 X. J L. 343 (1850). (X. S.) 813 (1913).
64. Massachusetts. Miller v. Shay, 145 70. Xew York v. Second Ave. R. Co., 102
Mass. 162, 13 X E. 468, 1 Am. St. Rep. 449 N. Y. 572, 7 X. E. 905, 55 Am. Rep. 839
(1887). (1886).
65. Cather v. Damerell, 5 Xeb. (Unof.) 490, 71. Taylor County v. Bank of Campbells-
99 X. W. 35 .(1904). ville, 145 Ky. 389, 140 S. W. 680 (1911);
66. Richardson v. Benes, 115 111. App. 532 Continental Xat. Bank v. First Nat. Bank,
(1904); Bank v. Richardson, 141 Iowa 738, 109 Tenn. 374, 68 S. W. 497 (1902).
118 X. W. 906 (1909). 72. People v. Mitchell, 94 Cal. 550, 29 Pac.
67. 4 Chamberlayne, Evidence, 3101, 1106 (1892).
3102. 73. 4 Chamberlayne, Evidence, 3103.
68. Kelley v. Crawford, 112 Wis. 368, 88 74. "The court examines it to see if it ap-
X. W. 296 ( 1901 ) . pears, prima facie, to be what it purports to
69. Ridgeley v. Johnson, 11 Barb. (X. Y.) be. If there are erasures and interlineations,
527 (1851). See also, Osborn v. Merwin, 50 and false or impossible dates, touching points
How. Pr. (X. Y.) 183 (1875); Watts v. Shew- that are material, or if for any reason it
ell, 31 Ohio St. 331 (1877). Entries made in clearly appears not to be a legal book of
a diary by a third party deceased are not entries, the court may reject it as incompe-
747 IDENTITY OF BOOK. 987-990
brightness of the pencil marks, etc., all to have been written at one time, 75
or where an account bears evidence of material alterations or erasures 7G
or contains only entries debiting the persons against whom the action ia
brought. 77 This must be explained to the reasonable satisfaction of the judge
before the book will be admitted. 78
987. [Administrative Requirements] ; Identity of Book Must be Estab-
lished. 79 In any case involving the use of the book entry it must be shown to
the reasonable satisfaction of the trial judge that the book before the court
is, in fact, the book which it is said to be. Xo special form of attestation is,
as a rule, demanded. Thus, the fact that a certain book produced in court
is the stock ledger of a bank may be proved satisfactorily by the evidence of
the cashier. 80
988. [Administrative Requirements] ; Material Used. 81 It is not deemed
necessary by the courts that any particular material, such as paper, be selected
to act as a vehicle for the words, figures and the like constituting the ac-
count. 82
Wood may be used, as where an account is kept upon a shingle 83 or by
notches made on a stick. 84
989. [Administrative Requirements] ; Original Must be Produced. 85 The
rule of procedure or canon of administration known as the " best evidence
rule " applies to the use of shop books. If the original book can be produced
by the propouent, within the limits of reasonable exertion, he will be required
to offer it. SG Where the original book has been lost or destroyed a copy which
the maker swears to be accurate may be received in evidence. 87
990. Scope of Evidence. 88 The doctrine has already been stated that an
essential of the probative force of the relevancy of regularity is that the book
entries must have been made in the regular routine of the entrant's business
or employment. It is the habit or custom of making such entries with an
tent" Funk v. Ely, 45 Pa. 444, 449 (1863), Cummings v. Nichols, 13 X. H 420. 38 Am.
per Woodward, ,T. Dec 501 (1843).
75. Dunbar v. Wright's Adm'r, 20 Fla. 446 83. Kendall v. Field. 14 Me. 30, 30 Am. Dec.
(1884) . See also, Davis v. Sanford. 91 Mass. 728 ( 1836). See also. Pallman v. Smith, 135
216 (1864). Pa. St. 188, 10 Atl. 891 (1890).
76. Pratt v. White, 132 Mass. 477 (1882). 84. Rowland v. Burton, 2 Harr. (Del.) 288
77. Fulton's Estate, 178 Pa St. 78, 35 Atl. (1835).
880, 35 L. E A. 133 (1896). 85. 4 Chamberlayne, Evidence. 3106,
78. Outherless v "Ripley, 98 Iowa 290, 67 3107.
N. W. 109 (1S06). 86. Baldridge v. Penland, 68 Tex. 441, 4
79. 4 Chamberlayne, Evidence, 3104. S. W. 565 (1887). See, Smiley v. Dewey, 17
80. Skowheoran Bank v. Cutler, 52 Me. 509 Ohio 156 (1848).
(1864) 87. Hodnett v. Gault, 64 App Div. (N. Y.)
81. 4 Chamberlayne, Evidence. 3105. 163. 166, 71 N. Y. Suppl. 831 (1901).
82. Hooper v Taylor, 39 Me. 224 (1855); 88. 4 Chamberlayne, Evidence, 3108-
3125.
991 SHOP-BOOKS. 748
automatic regularity that gives to them an increased proving power. It there-
fore follows that the entries should relate to the regular business of the person
for whom the books are kept,* in order to be admissible.
Such entries cannot be used to prove collateral facts as in such matters the
element of habit or custom on the part of the entrant is lacking. 90
All the early limitations as to the amount of the entries which might be
proved by the shop-books have been removed. 91
The books may be used to show the. sale and delivery of goods and their
prices * 2 but large bulky articles may in some cases not be proved in this way
as their delivery may be proved better by the evidence of those who did the
work. 93 The charge may be made before the actual delivery of the article. 94
Loans or cash payment^ cannot be proved in this way 95 as such items should
appear by a check or receipt unless where the money so charged was advanced
in payment of goods or merchandise procured by the party for the defendant. 06
In some jurisdictions money payments in the regular course of business as in
the banking business may be shown. 97
Charges for board 9S or public services " or the use of animals 1 may be
proved in this way but not charges for literary services. 2
991. [Scope of Evidence]; Nature of Charges; Special Contract. 3 Special
contracts or agreements are susceptible, in respect to their terms, conditions
and to performance thereunder, of various kinds of proof other than book
entries. They may be embodied in some formal written or printed memoranda
of greater or less length, and in fact frequently are. Under such circum-
stances the terms and conditions are provable by the memorandum of the
contract which may be spoken of as the " best evidence." In the absence
of proof of this nature they may be shown by other evidence, such as by
correspondence which has passed between the parties or by conversations at
89. Fulton's Estate, 178 Pa. St. 78, 35 All. 98. Tremain v. Edwards, 7 Cush (Mass.)
880, 35 L. R. A. 133 (1896). 414 (1851).
90. Galbraith v. Starks, 117 Ky. 915, 922, 99. Kinney v. United States, 54 Fed 313
79 S. W. 1191, 25 Ky. L. Rep. 2090 (1904), (1893).
per O'Rear, J. Admissibility of books or 1. Easly v. Eakin, Cooke (Tenn.) 388
statements of account in criminal prosecu- (1813).
tion, see note, Bender ed., 143 N Y 107. 2. Hirst v. Clarke, 3 Pa. L. J. 32, 1 Pa.
91. Richardson v Emery, 23 N. H. 220 L. J. Rep. 398 (1842).
(1851) ; Trisli v. Horn. 84 Hun 121, 32 N. Y. To prove a negative. The old shop-book
Suppl. 455. 65 X. Y. St. Rep 641 (1895). exception does not allow the proving of a
92. Copeland v. Boston Dairy Co., 189 Mass. negative. So account-books are not admissi-
342, 75 X. E. 704 (1905). ble to prove that certain goods were not re-
93. Leighton v. Manson, 14 Me. 208 (1837). ceived Winder v. Pollock. 151 N. Y. Suppl
94. Wollenweber v. Ketterlinus, 17 Pa. St. 870 The correctness of this decision to-day
389 (1851) may well be doubted Professional entries or
95. Shaffer v. McCrackin, 90 Towa 578, 58 memoranda, see note. Bender ed., 31 N. Y. 525.
N. W. 910, 48 Am St. Rep. 465 (1894) 3.4 Chamberlayne, Evidence, 3126-
96. Le Franc v. Hewitt, 7 Cal. 186 (1857). 3129.
7. Ganahl v. Shore, 24 Ga. 17, 24 (1858).
749 NATUEE OF CHARGES. 992,993
the time of making the alleged contract showing the agreement entered into.
Performance or non-performance may also be established by various kinds of
proof. In this class of cases the transaction is not regarded as arising in
the usual course of business within the principle which makes the book of
account primary evidence. There are lacking in the case of an entry as to
terms, conditions 4 or performance-* of a special contract the elements which are
essential to the relevancy of regularity, which must be established to render
the account Ixjok admissible.
Hence book accounts are not admissible to prove matters like the amount
due under a contract or damages 7 though book entries may be used to show
matters like delivery and other things done in the regular course of business
although they may be done under a special contract. 8
992. [Scope of Evidence]; Nature of Charges; Other Matters. 9 The rule
does not penult the introduction of books of account kept by a fiduciary 10 or
a billiard room proprietor. 11 Wholesale dealings may often not be proved in
this way as the charges may be of such magnitude as to preclude them 12
but under the modern development of the doctrine they are often admit-
ted
993. [Scope of Evidence] ; Nature of Occupation. 13 The rule permitting
the admission of shop books in evidence was originally for the benefit of the
small tradesman or handicraftsman who kept no clerk and was limited to
books kept by such persons, and to the items usually embraced in such accounts.
In the development of the rule admitting books of account, the early limita-
tatious have been, as a general rule, removed. The reasons which appealed to
the courts in the early days for the application of the rule likewise existed to
cause an extension of the principle so that it may be said generally that at the
present day the rule applies, not only to tradesmen and merchants, but to all
persons dealing, the one with the other, 14 in a business, occupation or calling
4. Wait v. Krewson, 59 X. J. L. 71, 35 Atl 9. 4 Chamberlayne, Evidence, 3130-
742 (1896). The entries in the policy book 3132.
of a deceased insurance agent as to the terms 10. Fowler v. Hebbard, 40 App. Div. (N.
of a lost policy are not admissible in evidence Y.) 108, 57 N". Y. Suppl. 531 (1899).
where they were not verified by any one know- 11. Boyd v. Ladson, 4 McCord L. (N. C.)
ing the facts recited therein. Cummings v 76, 17 Am. Dec. 707 (1826).
Pennsylvania Fire Insurance Co., 153 Iowa 12. Bustin v. Rogers, 11 Cush. (Mass.) 346
579, 134 N. W. 79, 37 L. R. A. (X. S.) 1169 (1853), per Dewey. J., wherein it was said of
(1912) an item of "7 gold American watches $308."
5. Hall v. Chaimbersburg Woolen Co., 187 " This species of evidence was not the proper
Pa. St. 18, 40 Atl. 986, 67 Am St. Rep. 563, evidence to establish a sale of this magnitude
52 L R. A. 689 (1898). and character." See also, Coor v. Seller, 100
6. Danser v. Boyle, 16 X J. L. 395 (1838). Pa. St 169, 45 Am. Rep. 370 (1882).
7. Wait v Krewson. 59 X J. L. 71. 35 13. 4 Chamberlayne, Evidence, 3133-
Atl. 742 (1866). 3137.
8. Bailey v Harvey, 60 X. H. 152 (1880) ; 14. Foster v. Coleman, 1 E. D. Smith (N.
Oliver v. Phelps, 21 X. J L. 597 (1845). Y.) 85 (1850).
.88
994,995 SHOP-BOOKS. 750
where a record of transactions in the regular routine thereof is necessarily kept
in a book of accounts.
The rule now includes for example not only merchants but also mechanics ir
and professional men. 16
994. [Scope of Evidence] ; Who May be Charged. 17 The rule permitting
of the introduction of the shop book into evidence is ordinarily interpreted
as limiting its admission thereunder to those cases where the entries show an
intentional charge in favor of one party to the action against the adverse
party. 18
The charges may however be in the alternative 19 but may not be used to
charge a third person though the book may be used where it embodies an
admission. 20
It has been held for example that the books showing a charge against an-
other are not conclusive as to the person to whom credit is given 21 and the
books are not admissible to charge the defendant with goods delivered to or
services performed for another on the defendant's order 22 but where the fact
of such an order is established by evidence aliunde the books then become
admissible to show delivery or the performance of the services rendered. 23
Mistakes in the account may be rectified by parol. 24 The books may not
be used to establish a joint liability 25 but parol evidence may be used to
establish the liability and then the entries may be used to show the items 26
and so agency being established to charge an undisclosed principal the books
then become admissible. 27
995. Weight. 28 Preliminary inquiries as to the character, authenticity,
regularity of the book, and which have reference to its admissibility, are ques-
15. Linnell & Foot v. Sutherland, 11 Wend. special contracts such as are not shown to
(N. Y. ) 568 (1834). be or to be inferred from the entries alone.
16. Bay v. Cook, 22 N. J. L. 343 (1850). The admission of such entries would open wide
17. 4 Chamberlayne, Evidence, 3138- the door to fraud as a party might make any
3145. contract the subject of book entry. Wells v.
18. Gill v. Staylor, 93 Md. 453, 49 Atl. 650 Hays, 93 S. C. 168, 76 S. E. 195, 42 L R. A.
(1901). (N. S.) 727.
19. Burnell, Gillett & Co., v. Dunlap, 11 23. Wilcox Silver Plate Co. v Green, 72
Iowa 446 (1861). N. Y. 17 (1878). Under a statute making
20. Loomis v. Stuart (Tex. Civ. App. 1893), book entries admissible in evidence they may
24 S. W. 1078. See also, Winslow v. Dakota be used in a suit between third parties and
Lumber Co., 32 Minn. 237, 20 N. W. 145 the fact that certain claims were paid is evi-
(1884). dence as to third parties that they were
21. Myer v Grafflin, 31 Md. 350, 100 Am. valid. Richolson v. Ferguson, 87 Kan. 411,
Dec. 66 (1869). 124 Pac. 360, 40 L. R. A. (N. S.) 855 (1912).
22. Kaiser v. Alexander, 144 Mass. 71, 12 24. Schettler v. Jones, 20 Wis. 412 (1866).
N. E. 209 (1887). The account books and 25. Severance & Smith v Lombardo. 17 Cal.
check stubs of the defendant with memoranda 57 (1860) : Kidder v. Norris. 18 N. H. 532
thereon are not admissible in evidence to show (1847).
that payments made were intended to be used 26. Bowers v. Still, 49 Pa St '65 (1865).
to pay the debt of another than the payee. 27. Davis v. Dyer, 60 N. H. 400 (1880).
Books of account are not admissible to prove 28. 4 Chamberlayne, Evidence, 3146.
751 WEIGHT. 995
tions for the court to determine in the exercise of its powers of administra-
tion. 29 The weight, however, which is to be given to such evidence depends
upon the circumstances surrounding each case and is to be determined by the
tribunal which decides the question of fact. 30
The declarant who otfers his shopbook is open to the same kind of im-
peachment as other witnesses as to his character for veracity 31 and the gen-
eral character of the book may also be impeached as where it appears not to be
accurately kept. 32
29. Pratt v. White, 132 Mass. 477 (1882) ; 876 (1888) ; Dickens v. Winters, 169 Pa. St.
Burleson v. Goodman & Stroud, 32 Tex. 229 126, 32 Atl. 289 (1895).
( 1869). 31. Funk v. Ely, 45 Pa. 444, 448 (1863).
30. Rexford v. Comstock, 3 N. Y. Suppl. 32. Merchants' Bank v. Rawls, 7 Ga. 191,
50 Am. Dec. 394 (1849).
'
CHAPTER XLVI.
RELEVANCY OF SIMILARITY; UNIFORMITY OF NATURE.
.
Relevancy of similar occurrences; uniformity of nature, 996.
Preliminary observations; rule an assignment of irrelevancy; true ground of
rejection, 997.
Rule stated, 998.
Administrative requirements; necessity, 999.
relevancy, 1000.
relevancy of similarity, 1001.
essentially similar occurrences, 1002.
experiments, 1003.
varying phenomena, 1004.
relevancy of dissimilarity, 1005.
Inferences other than similar occurrences, 1006.
Other uniformities than that of physical nature; regularity of law or busi-
ness; habits, 1007.
996. Relevancy of Similar Occurrences; "Uniformity of Nature. 1 Of the four
main exclusionary rules under which relevant evidence is excluded, we have
already discussed opinion and hearsay evidence. The remaining two of such
exclusionary rules, res inter alios and character, possess the common attribute
that they employ, reasoning by analogy, the happening of a collateral occur-
rence as evidence of the doing of a particular act or the happening of a given
event. In other words, the evidence is designed to show that an event hap-
pened under certain conditions because a similar one occurred under the same
conditions, or that A. did a particular act because he did a similar act before
under a like situation or possessed a trait of character which predisposed him
to do it. This chapter treats especially of circumstances under which evidence
is admissible to show that a particular event occurred in the realm of nature
on one occasion because a similar event happened on another. ,
A good example of this characteristic judicial method is furnished in actions
of negligence where generally evidence of the custom of others doing similar
work is not admissible on the question of the negligence of the defendant 2
although such evidence is sometimes considered relevant. 3
1. 4 Chamberlayne, Evidence, 3150- 113 Md. 460, 77 Atl. 1121, 45 L. R A. (N, S.)
3152. 281 (1910). A custom of builders as to the
2. A custom among bridge builders to trust meaning of the term building line as found in
to the engineer in charge cannot be shown to the ordinances is incompetent. O'Gallagher
relieve it of the duty of looking after their v. Lockhart, 263 111. 489, 105 N. E. 295, 52
employees as this is contrary to a well settled L. R. A. (N. S.) 1044 (1914).
rule of law. Pennsylvania Steel Co. v. Nace, 3. A custom among masons to leave mortar
762
753 KULE STATED. 997-999
997. [Preliminary Observations ; Rule an Assignment of Irrelevancy] ; True
Ground of Rejection. 4 In accordance with the judicial habit of assigning the
secondary, if conclusive, reason for rejecting evidence, much testimony is con-
stantly rejected as res inter alios when the real ground for the exclusion is that
the fact oifered is irrelevant, i.e., has no logical bearing upon the issue involved. 5
Under such circumstances where the evidence of the occurrence of an event is
such as to afford no logical bearing upon the proof of the occurrence of another
event, the true ground of rejection is irrelevancy. An irrelevant matter is no
evidence at all and requires no exclusionary rule to warrant its rejection. 6
Moreover, the evidence of the collateral act or event being circumstantial in its
nature, it is deemed secondary, and, under the principles pertaining to second-
ary evidence, the testimony of the collateral occurrence may also in some cases
be properlv excluded as such. 7
.
998. Rule Stated. 8 While the uniformity of nature may well furnish a
basis of probative fact which possesses a probative force beyond that shown by
moral uniformity used as a basis of similarity in conduct, the important ad-
ministrative circumstance that the proof is circumstantial rather than direct
has led the courts to treat the evidence of similar occurrences as secondary in
its nature. In the absence, therefore, of an adequate administrative necessity,
the inference that a given state of affairs existed or a particular event occurred
at a certain time because a similar state of affairs is shown to have existed or a
similar act occurred at another, is not one which the court accepts as primary
evidence. 9 Even when a suitable forensic necessity is shown on the part of the
proponent, some special ground of relevancy must also be made to appear. The
two states or events must be connected in some special way, other than the mere
similarity in certain particulars, in order that the existence of the one, on a
particular occasion, may be deemed to be probative of that of the other on a
different occasion.
999. Administrative Requirements; Necessity. 10 Unlike the rule against
hearsay, when not covered by a specific exception, the exclusion prescribed by
the present rule is not absolute, but conditional. In other words, it is not so
much a rule of procedure as it is a principle of administration. Let but a
boxes in the summer unfenced and uncovered 5. Churchill v. Hebden, 32 R. I. 34, 78 Atl.
may be shown. Zartner v. George. 156 Wis. 337 (1910).
131, 145 X. W. 971. 52 L. R. A. (X. S.) 129 6. Wright v. City of Chelsea, 207 Mass. 460,
(1914). The custom of others in the same 93 X. E. 840 (1911).
business as to the proper height above tide 7. Foster Ex'rs v. Dickerson, 64 Vt. 233, 24
water for a warehouse is admissible as bear- Atl. 253 (1891).
ing on the netrligence of the defendant. Hecht 8. 4 Chamberlayne. Evidence. 3162.
v. Boston Wharf Co.. 220 Mass. 307. 107 X. 9. People v. Molineux, 168 X. Y. 264, 61
E. 990, L. R. A. 1915 D 725 (1915). X. E. 286, 10 X. Y. Annot. Cas. 256, G2 L.
4. 4 Chamberlayne, Evidence, 3153- R. A. 193 (1901).
3161. 10. 4 Chamberlayne, Evidence, 3163-
3165.
1000, 1001 RELEVANCY OF SIMILARITY. 75-1
forensic necessity arise which the court deems adequate for the purpose and the
paramount administrative canon that a party has a right to prove a reasonable
case by the most probative evidence in his power will require that, so far as the
similarity is relevant, the happening of a given event or the existence of a par-
ticular state of affairs at one time may be shown by its happening or existence
at another. The factors affecting the action of the court in regard to admit-
ting evidence of similarity claimed by the proponent to be necessary to proof
of his case are obvious. They are practically the same which govern the ad-
ministrative action of the court in dealing with any proponent who offers sec-
ondary evidence of a fact. In proportion as it appears to the presiding judge
that there is but little prospect that better evidence will be attainable, that the
danger that the jury may be misled or the trial unduly protracted by the raising
of a collateral issue, either does not arise or cannot be avoided, will such sec-
ondary evidence be received. 11
This necessity may arise either in the original case or in the stage of rebuttal
and the appellate courts will disturb the ruling made only in case of abuse of
discretion. 12
1000. [Administrative Requirements] ; Relevancy. 13 That the secondary
evidence of another event or occurrence should be received as evidence that,
under the uniformity of nature, a given event occurred or state existed at a
particular time, it will be required, as a matter of administration, not only that
a suitable forensic necessity should be shown to exist, but also that the evidence
offered should be relevant. However great may be the necessity for receiving
secondary evidence, the facts offered must, at least, be evidence, i.e., relevant in
some one of the aspects of relevancy. It may be expedient, before entering
upon the general subject, to make two preliminary observations. The first of
these is to the effect that, in connection with the uniformity of nature the rele-
vancy of a particular state or event to the existence of another is, in itself, con-
sidered objective rather than subjective. In other words, it involves and is
based upon the uniformity between antecedent and consequent, which experi-
ence has observed to exist in the physical universe. By contrast, the relevancy
of moral uniformity is more largely subjective. In the second place, the evi-
dence being used to establish, in a circumstantial manner, by means of a direct
and clear proposition of experience, the existence of a res gestae fact, its rele-
vancy is probative, while the slighter causal relation between antecedent and
consequent, shown in cases -of human conduct subject to the operation of voli-
tion, i.e., the relevancy of moral uniformity is, as has been said, more nearly
deliberative.
1001. [Administrative Requirements]; Relevancy of Similarity. 14 In deal-
11. Galveston, etc., R. Co. v. Ford (Tex. Conn. 561 (1857); Gillrie v. Lockport, 122
Civ. App. 1898), 46 S. W. 77. N. Y. 403, 25 N. E. 357 (1890).
12. labell v. New York, etc., R. Co., 25 13. 4 Chamberlayne, Evidence, 3166.
14. 4 Chamberlayne, Evidence, 3167.
755 EXPERIMENTS. 1002, 1003
ing with the direct probative force of the inference that under certain ante-
cedents an event happened or state of things came into existence on a particular
occasion because, under precisely similar conditions or antecedents, the same
event happened or state of affairs came into being, a court or jury may well
feel that they are treading upon lirm logical ground. One is fairly certain,
for example, that the sun gave light on a given occasion because at all previous
times it has been observed to do so. In other words, the maximum of probative
relevancy is obtained where, as in the uniformity of natural law, the same cause,
in itself considered, always operates in precisely the same way, where the force
is a powerful one and not affected by other forces.
1002. [Relevancy of Similarity] ; Essentially Similar Occurrences. 15 The
happening of an essentially similar state or event, shows not only the possibility
of such an occurrence, where that is disputed but furnishes an object lesson,
as it were, in education and explanation of the state or event in question ;
what caused it, or how it happened. 16 Where it is disputed that the particular
event in question actually occurred, the fact that the same event happened or
state of things came into being under similar circumstances is also highly pro-
bative. Essential similarity on all material parts being established, the evi-
dence is probative, and, if a suitable necessity is shown, will be admitted. 17
For example, the question being as to the damage caused to plaintiff's trees by
the escape of gas from the defendant's premises, evidence of the condition of
other trees in the vicinity is admissible. 18
1003. [Relevancy of Similarity] ; Experiments. 19 Should it be made affirm-
atively to appear to the presiding judge by the proponent of the evidence 20
that the essential conditions of the actual state or event involved in the inquiry
submitted for investigation can be artificially reproduced in an experiment,
the results of the latter may be relevant, 21 and if an adequate administrative
necessity exists for receiving them, will be admitted. 22
Difference in some essential particular between the actual transaction, as it
is claimed to have existed, and the conditions of the experiment, warrants the
exclusion of the evidence as to the result obtained by it. 23 The closer the simi-
larity in the facts proved and the facts on which the experiment is based, the
greater the probative force of the evidence. 24
15. 4 Chamberlayne, Evidence. 3168. nlative and hypothetical theories where they
16. Polly v. MoCall, 37 Ala. 20 (1860). are not shown to have been based upon facts
17. City of Emporia v. Kowalski, 66 Kan. connected with the crime charged is not ad-
64, 71 Pac. 232 (1903) missible. Harris v. State (Tex. Cr. App.
18. Evans v. Keystone Gas Co., 148 X. Y. 1911), 137 S. W. 373.
112, 42 X. E. 513, 51 Am. St. Rep. 681, 30 22. Kimball Bros. Co v. Citizens Gas, etc.,
L. R A. 615 (1895). Co., 141 Iowa 632, 118 X. W. 891 (1908).
19. 4 Chamberlayne, Evidence, 3169- 23. Mitchell v. Sayles, 28 R. I. 240, 66 Atl.
3173 574 (1907).
20. People v. Thompson, 122 Mich. 411, 81 24. Atlanta, etc., R. Co. v. Hudson, 2 Ga.
X. W. 344 (1899). App. 352, 58 S. E. 500 (1907).
21. Evidence of experiments based on spec-
1004, 1005 RELEVANCY OF SIMILARITY. 756
Experiments are received as a matter of indulgence. The party offering
such evidence has no right to insist upon evidence of the experiment being re-
ceived, should the presiding judge be of a contrary opinion. 25 The trial judge
must, however, act within the limits prescribed by reason. 20
It has been held that the judge cannot undertake experiments on his own
initiative to test the accuracy of the witness 27 and the jury cannot on their own
initiative conduct experiments out of court. 28
1004. [Relevancy of Similarity] ; Varying Phenomena. 29 While it mav be
frankly conceded that should a collateral occurrence involving the uniformity
of natural law be presented which should be precisely similar in all its circum-
stances to the principal case and result in the creation of a particular state or
the happening of a given event the results of such collateral occurrence would
be highly probative, the administrative difficulty experienced by the courts
consists in the fact that such precisely similar collateral occasions are seldom
encountered in practice. The rule, therefore, as usually stated, permits the
reception of collateral occurrences which are substantially similar in their cir-
cumstances, i.e., are similar in all essential particulars. Where, however, the
collateral occasion fails to present some substantial similarity to the one in-
volved in the inquiry, i.e., where important or material variations in the phe-
nomena of the two occasions are presented, proof of what happened on a col-
lateral occasion will be rejected.
On the other hand, where one continuous state or condition of affairs is in-
volved in the inquiry, the same administrative considerations do not apply.
The presumption of continuance or against change, operates to render the infer-
ence that, a state of affairs once shown to exist will continue to do so for a
length of time proportionate to the permanence of the state or condition and to
the improbability that a modifying cause will intervene.
Similar accidents which have only features of resemblance in particulars
which are not essential do not have such a relation of relevancy as makes them
probative. They are, therefore, inadmissible ; however great the adminis-
trative necessity, 30 except for illustration. 31
1005. Relevancy of Dissimilarity. 32 The administrative necessity for fur-
ther use of other occasions beyond this relevancy of similarity is most largely
25. Com. v. Buxton, 205 Mass. 40, 91 N. E. 29. 4 Chamberlayne, Evidence, 3174,
128 (1910): State v. Ronk, 91 Minn. 419, 3175.
98 N. W. 334 (1904). 30. Florida Cent., etc., R. Co. v. Mooney,
26. Woelfel Leather Co. v. Thomas, 68 111. 45 Fla. 286, 33 So. 1010, 110 Am. St. Rep.
App. 394 (1896) ; Ord v. Nash, 50 Nebr. 335, 73 (1903) : Georgia Cent. R. Co. v. Duffey,
09 X. W. 964 (1897) : Streight v. State, 62 116 Oa. 346, 42 S. E. 510 (1902) : Smart v.
Tex. Cr. App. 453, 138 S. W. 742 (1911). Kansas City, 91 Mo. App. 586 (1901).
27. Burke v. People, 148 111. 70, 35 N. E. 31. Aurora v. Brown, 12 111 App. 122, af~
376 (1893). firmed 109 111. 165 (1882).
28. Smith v. St. Paul, etc.. E. Co., 32 Minn. 32. 4 Chamberlayne, Evidence, 3176-
1, 18 N. W. 827, 50 Am. Rep. 550 (1884). 3182.
r
757 DISSIMILARITY. 1006
due to the fact that neither in the realm of nature nor the mental or moral world
do the actual phenomena of what happened on any particular occasion pre-
sented for investigation come before the tribunal in such simplicity, absence of
complexity, as to leave the result, the obvious effect of a single and sufficient
cause.
Where various causes united in producing the result the proponent can then
rely on the presence of dissimilar features as showing which causes produced
a dissimilar result, or where the result is admitted 33 other occurrences in which
the antecedent circumstances for which liability is claimed were present and
the same result followed may be received in evidence ; provided that the facts
of the other occurrences are so varied as to leave the antecedent circumstances
claimed to have been the cause, the only constant antecedent circumstance. 34
Thus, the question being as to whether A. was injured by the unsafe and
dangerous character of a sidewalk, evidence of similar accidents to other per-
sons at the same place and about the same time has been received ; not for
the purpose of showing that the plaintiff w r as injured, but for that of exhibiting
the dangerous nature of the condition of the sidewalk.
In an action by an employee for injuries alleged to have resulted from par-
ticles of lead in the air where he worked, to show that such was the cause of his
illness, evidence is competent that fellow-w T orkers were also affected with lead
poisoning. This relevancy of dissimilarity is entirely apart from the inde-
pendent relevancy of these occurrences as showing notice to the responsible au-
thorities by the notoriety of these occurrences themselves.
Replies of Opponent. In reply to such evidence, it is, of course, open to the
opponent and, indeed, to avoid its effect, it is necessary for him to contend that
new affirmative hypotheses or explanations are introduced by the facts of the
collateral occasion. It is precisely this right of the opponent which constitutes
the administrative danger of collateral issues which forms an important reason
for rejecting evidence of this nature.
Where the relation of cause and effect is to be established, it may not only
be shown that in any combination of circumstances where the cause is present
and permitted to operate freely, the result followed, but also that when the
cause is absent, however the circumstances may otherwise be similar, the result
does not appear/' 50 Thus, where a person is sued for negligently shelling pop-
corn, cracking the kernels and so making the pop-corn valueless, the plaintiff
mav show that preciselv similar pop-corn was shelled, under the same condi-
' ft
tions, by other persons without injuring it. 36
1006. Inferences Other Than Similar Occurrences. 37 Whether a given
33. Rowlands v Elgin. 66 Til. App. 60 36. Chase v. Blodgett Milling Co., Ill Wia.
(189o). , 655, 87 N W. 826 (1901).
34. Shea v Glendale Elastic Fabrics Co.. 37. 4 Chamberlayne, Evidence, 3183-
162 Mass. 4f>3, 38 X. E. 1123 (1894) 3186.
35. A very v Burrall, 118 Mich. 672, 77 N.
W. 272 (1898)
1007
RELEVANCY OF SIMILARITY.
758
cause, of any nature, was capable of producing a given result may be satisfac-
torily established by proof that it actually accomplished it on another occa-
sion. 38 In this most conclusive way, it may be shown that a certain machine
is capable of doing a given piece of work, 39 or indicting a certain injury. 40
In much the same way the fact of change can usually best be shown by com-
paring conditions, states, or events with later ones. Thus, where it is consid-
ered desirable to show the development of real property 41 in order to establish
the possibly essential fact of a change in its value, 42 no more appropriate means
for doing so may suggest itself than to show the different condition of the prop-
erty on two or more occasions. In establishing the fact of change, it will be
necessary to prove the existence at different times of distinct states or conditions.
In like manner, the general properties of matter, e.g., that a certain sub-
stance, used as a beverage, is poisonous, 43 may be established by proof of what
happened on other occasions than that in question.
1007. Other Uniformities Than That of Physical Nature; Regularity of Law
or Business; Habits. 44 Certain uniformities other than that of natural law
seem to possess an invariability of action superior to that observable in moral
conduct as controlled by volition. The regularity in the operation of municipal
law, 45 of the routine operations of a well-established and systematized busi-
ness, 46 a settled physical or mental habit 47 present, for example, to a judicial
38. Lane v. Moore, 151 Mass. 87, 23 N. E.
828, 21 Am. St. Rep. 430 (1890).
39. Baber v. Rickart, 52 Ind. 594 (1876) ;
Waters' Patent Heating Co. v. Smith, 120
Mass. 444 (1876)
40. Leather v. Blackwell's Durham Tobacco
Co.. 144 N. C. 330, 57 S. E. 11, 9 L K. A.
(X S.) 349 n. (1907).
41. Vigel v. Naylor, 24 How. (U. S.) 208,
16 L. ed 646 (I860).
42 Drucker v Manhattan Ry., 106 N. Y.
157. 12 N. E. 568, 60 Am Hep 437 H887).
43. Com. v Kennedy. 170 Mass IS, 48 N.
E. 770 (1897); State v. Thompson, 132 Mo.
301, 34 S. W. 31 (1895)
44. 4 Chamberlayne, Evidence, 3187-
3206
45. Rowe v. Brenton, 8 B. & C. 737, 3 M.
4 R. 361, 15 E. C. t. 363 (182S).
46. Morisette v Canadian Pat- Ry Co., 76
Vt 267, 56 Atl. 1102 (1004) (si/e of switch
lanterns). Sheldon v. Hudson R R Co., 14
N Y 218. 221. 67 Am. Dec 155 (1856). per
Denio, C. J., wherein it was said : " The busi-
ness of running the trains on a railroad sup-
poses a unity of management and a general
similarity in the fashion of the engines and
the character of the operation. I think, there-
fore, it is competent prima facie evidence, for
a person seeking to establish the responsi-
bility of the company for a burning upon the
track of the road, after refuting every other
probable cause of the fire, to show that, about
the time when it happened, the trains which
the company was running past the location
of the fire were so managed in respect to the
furnaces as to be likely to set on fire objects
not more remote than the property burned."
" "Where there is no proof" of what particu-
lar engine set the fire, and the circumstantial
evidence is such that there is a strong prob-
ability that some engine on the road did set
the fire, then it may be proper to show that
the engines on that road generally emitted
sparks, or that some one or more of them did
so at other times and places " Gibbons v.
Wisconsin Valley R. Co., 58 Wis. 335, 340,
17 N W. 132 (1883). per Orton, J.
Habit is not primary evidence and is not
admissible where direct evidence is available.
Zucker v. Whitridge, 205 N Y 50. 98 N E.
209 (1912K But where this cannot be had
evidence of habit may be used to show con-
duct on a certain occasion. Stollery v. Cicero
etc., Ry Co., 243 111 290, 90 N. E. 709
(1910) ; Devine v. National Safe Deposit Co.,
759 HABITS. 1007
tribunal, is the basis of a logical inference that things did happen or even that
they will happen on a particular principal occasion in the same manner that
they occurred on a previous one which experience shows to be superior in pro-
bative force to the simple inference that a person has done a thing at one time
because he did it at another. The first and second of these uniformities inter-
mediate, as it were, between that of nature and the one based on the regularity
of moral conduct apparently relate more nearly to the happening of physical
occurrence than to the conduct of individuals ; the third the force of habit
seems more nearly to concern the doings of individuals than the regular occur-
rence of physical phenomena. It would follow that the two former are more
closely analogous to the uniformity of natural law than is the third ; while habit
would appear more closely affiliated with moral uniformity and, in fact, to pre-
sent itself as a culmination and intensification of the uniformity of moral con-
duct. The distinction, however, is, in truth, more apparent than real ; for even
where these several intermediate uniformities control or otherwise affect the
conduct of individuals, the^y all operate by minimizing or removing the influ-
ence of volition. In so doing, they remove conduct from the varying and di-
vergent operation of the will, placing it among the automatic, intuitive, instinc-
tive reflexes of bodily action analogous to the unconscious or subconscious
activities of the vital functions of the human body. Such automatic reflexes,
as is elsewhere seen in connection with the probative force of regular spon-
taneous action, are, in reality, part of the uniformity of nature, and thereby
acquire, even for the inference of conduct, much of the probative force inherent
in the regularity of natural law.
145 111. App. 322 (1908); Chicago v Doolan, Habits of Animals. The jury may infer
99 III. App. 143 (1900); McNulta v. Lock- from the well-known characteristics of tur-
ridge, 137 111 270, 72 N. E. 452, 31 Am. St. keys that they would fly off the railroad
Rep 362, affirmed, 141 U. S. 327. 12 Sup. Ct. track if the whistle had been sounded and
11, 35 L. ed. 196 .(1891). In criminal cases therefore that as they were run over the
evidence of habit may be used to show a bal- whistle was not sounded. Lewis v. Norfolk
ance of probability. Cox v. Com., 140 Ky. S. R. Co., 163 X. C. 33, 79 S. E. 283, 47 L.
65, 130 S. W. 819 (1910). R. A. (N. S.) 1125 (1913).
.
CHAPTER XLVII.
RELEVANCY OF SIMILARITY; MORAL UNIFORMITY.
Res inter alios, 1008.
Administrative requirements, 1009.
relevancy of similarity,, 1010.
proof of mental state, 1011.
knowledge, 1012.
malice, 1013.
other mental states, 1014.
motive, 1015.
urnfy of design, 1016.
relevancy of dissimilarity, 1017.
psychological induction, 1018.
Inferences other than conduct, 1019.
constituent facts, 1020.
contradiction, 1021.
corroboration or explanation, 1022.
identification of doer of act; essential conditions for conduct, 1023.
probative facts, 1024.
1008. Res Inter Alios. 1 Testimony of collateral occurrences, based solely
upon mental uniformity, is frequently excluded as res inter alios or as res inter
alios acta. The phrase res inter alios is an abbreviation of the maxim, res
inter alios acta alteri nocere non debet, meaning a transaction between two par-
ties ought not to operate to the disadvantage of a third.
The general rule relative to the principle now under consideration may be
thus stated : The question being whether A. did or omitted to do a certain act,
no evidence is admissible of other similar acts or omissions which, by their
general resemblance, thereto, suggest a probable inference that A. did or
omitted to do the act in question, unless the two transactions are connected in
some particular manner.
The principle involved is well illustrated in negligence cases. Thus, in an
action founded upon an allegation of negligence, no inference that a certain
act was reasonable or that a certain person acted in a reasonably careful man-
ner can be drawn from the fact that others in the same business have or have
not done such act or are or are not in the habit of acting in such a manner. 2
1. 4 Chamberlayne, Evidence, 3207- 458 (1912). Proof of similar accidents, see
3212. note, Bender ed., 127 N. Y. 46. Against ele-
2. Harmon v. Peoria Ry. Co., 160 111. App. vated railway in adjoining owner's action,
780
7l>l ME-XTAI. STATE. 1009-1011
A familiar doctrine of criminal law of great importance to the accused an-
nounces that one cannot be proved to have been guilty of a particular crime by
the simple showing that he has committed a similar one at about the same time.^
1009. Administrative Requirements. 4 The evidence of collateral facts bo-
iiig secondary in nature must be shown to be reasonably necessary to proof of
the proponent's case and to be relevant.
1010. [Administrative Requirements] ; Relevancy of Similarity. 5 In the
case of a collateral act by A. whose relevancy is that of the uniformity of mind,
the proving power is that of similarity. There is seen to be such a uniformity
in the mental reactions of a given individual, say A., to a particular mental
stimulus that the fact of his action on a particular occasion in a given way, a
certain motive being operative, furnishes evidence that, the same stimulus
being present, he acted in a like \vay on another occasion. The collateral occur-
rence operates, in many cases, to corroborate the existence of the connection
claimed by the prosecution to exist between a particular stimulus and the actual
conduct of the accused.
1011. [Relevancy of Similarity]; Proof of Mental State. 6 A constituent
element of many offenses is a mental state of the alleged perpetrator of the
crime. The crime, for example, charged against A. may be that of receiving
stolen goods, knowing them to have been stolen. In such a case, A' s knowledge
of the stolen character of the goods is a necessary fact to be shown by the prose-
cution. Or a given act may be charged to have been done by him with intent
to defraud. Thus, with regard to a great many offenses, some particular psy-
chological state on the part of the alleged offender is a constituent element of
the crime. In the absence of admissions by the person charged with the com-
mission of an act, his mental state in connection with the doing of such act can
rarely be shown except by the manifestations of such state to prove the exist-
ence of which, the use of collateral acts may be of great value, and, in many
cases, the only mode of proof.
see note. Bender ed., 106 X. Y. 165. Propri- 3. People v. Geyer, 196 X. Y. 364, 90 X. E.
ety of showing other like accidents in an in- 48 ( 1909 ) . Right to prove another crime or
jury case, see note, Bender ed., 32 X. Y. 342. offense, see note. Bender, ed., 93 X. Y. 470,
So similar acts of negligence by a party at 104 X. Y. 59S. 138 X. Y. 601, 143 X. Y. 374.
another time are not admissible to show his 147 X. Y. 105, 175 X. Y. 197, 177 X. Y. 434.
negligence in a particular case. Oklahoma 461. Of other crimes in a criminal case, see
R. Co. v. Thomas (Okla.), 164 Pac. 120. note. Bender's ed., 108 X. Y. 303. Adrnissi-
L. l\. A. 1917 E 405 (1917). Casting water bility of other fraudulent transactions, see
by one engine at a stated time and upon a note. Bender's ed.. 149 X. Y. 40.
stated place cannot be proved by showing that 4. 4 Chamberlayne, Evidence. 3213-
other engines in some manner cast water at 3215.
different times near and by possibility upon 5. 4 Chamberlayne, Evidence, 3216.
that place although it is claimed that this 6. 4 Chamberlayne, Evidence, 3217-
shows a custom. Eisentrager v. Great Xorth- 3227.
em R. Co., 178 Iowa 713, 160 X. W. 311, L.
It. A. 1917 B 1245 (1916).
1012
RELEVANCY OF SIMILAKITY; MOEAL.
702
That a separate indictment has been found for the commission of the col-
lateral act 7 or that the accused has been tried and acquitted s furnishes no
ground for rejecting evidence which it supplies as to the existence of the mental
state. So the running of the Statute of Limitations should not affect its ad-
missibility but the general rule is otherwise. 9 The evidence should not be too
remote in time lu or show such slight causal connection as to render it of no
logical bearing. 11
The intent with which a party does an act may often be shown by evidence
of other acts of a similar character done by the same person. 12 Intent to de-
fraud for example may be shown by evidence that the perpetrator of the act
had committed similar frauds of a like nature 13 and so in cases of homicide 14
or robbery 10 other similar crimes may be snown to prove intent. The same
is true of crimes against property 1(> or sexual offences, 17 or other crimes. 18
1012. [Relevancy of Similarity] ; Knowledge. 19 In many actions for negli-
gence where it is important to show that the defendant had knowledge this may
be shown by evidence of other similar happenings as in case of actions for
7. McCartney v. State, 3 Ind. 353, 354, 56
Am. Dec. 510 (1852).
8. State v. Leonard, 72 Vt. 102, 47 Atl. 395
(1900).
9. State v. Guest, 100 N. C. 410, 6 S. E.
253 (1888); State v. Potter, 52 Vt. 33
(1879); Wolfson v. U. S., 101 Fed. 430, 41
C. C. A. 422 (1900); writ of certiorari de-
nied, 180 U. S. 637, 21 Sup. Ct. 919, 45 L.
ed. 710 (1901).
10. Bannon v. P. Bannon Sewer Pipe Co.,
136 Ky. 556, 119 S. W. 1170 (1909) ; Horn v.
State (Tex. Cr. App. 1912), 150 S. W. 948;
Deitz v. State, 149 Wis. 462, 136 N. W. 166
11. People v. Peckens, 153 N. Y. 576, 592,
47 N. E. 883 (1897).
12. People v. Zito, 237 111. 434, 86 N. E.
1041 (1909).
13. State v. Flanagan, 83 N. J. L. 379, 84
Atl. 1046 (1912).
14. Com. v. Birriolo, 197 Pa. St. 371, 47
Atl. 355 (1900).
15. State v. Ward (Iowa 1902), 91 N. W.
898. But see, State v. Spray, 174 Mo. 569,
74 S. W. 846 (1903).
16. Com. v. Sawtelle, 141 Mass. 140, 5 N.
E. 312 (1886).
17. State v. Johnson, 133 Iowa 38, 110 N.
W. 170 (1907): Evers v. State, 84 Neb. 708.
121 X. W. 1005, 19 Am. & Eng. Ann. Cas. 06
(1909) : Williams v. State, 8 Humph. (Tenn.)
585 (1848). See also, State v. Leak, 156 N.
C. 643, 72 S. E. 567 (1911).
18. State v. Johns, 140 Iowa 125, 118 N. W.
295 (1908). In a prosecution for robbery
the State cannot introduce evidence of an-
other similar robbery committed by the de-
fendant the previous night in the absence of
evidence of conspiracy or common plan. Mil-
ler v. State (Okla. Crim. Rep.), 163 Pac.
131, L. R. A. 117 D 383 (1917). Impor-
tance of intent, see note, Bender ed., 125
X. Y. 341. Right to testify to intention, see
note, Bender'e ed., 129 N. Y. 61. Of notice
to employer of habits of employee, see note,
Bender ed., 183 N. Y. 23.
A prosecutrix in a rape case may always
be impeached by showing acts of intercourse
with the defendant voluntarily but there is.
much conflict as to whether acts of inter-
course with others may be shown. There
seems to be much reason in the view that such
evidence should be received as it seems much
more likely that a woman of that class would
submit to the defendant than a pure woman.
Lee v. State, 132 Tenn. 655, 179 S. W. 145.
L. R. A. 1916 B 963 (1915). In an action
for an assault which the defendant denies
the plaintiff may show that the defendant
was intoxicated at the time and was in a bel-
ligerent frame of mind and that he had as-
saulted other persons immediately before and
after the assault committed on the plaintiff.
Harshbarger v. Murphy. 22 Idaho 261, 125
Pac 180. 44 L. R. A. (X. S.) 1173 (1912).
19. 4 Chamberlayne, Evidence, 3228-
32.38.
763
MALICE.
i 1013,1014
personal injury from machinery 20 or for the defective condition of a street 21
or from the incompetence of a fellow servant " or from injury caused by
vicious animals. 23 So in criminal cases where guilty knowledge must be
proved similar acts of the defendant may be shown as in case of embezzle-
ment 24 or false pretences 25 or forgery, 26 illegal sale of liquor, 27 larceny, 28
receiving stolen goods 29 or other felonies. 30
1013. [Relevancy of Similarity]; Malice. 31 The existence of malice in
connection with a particular transaction may be shown by its manifestation on
other probative occasions. 32 In other words, similar acts done at other times,
not too remote to be probative, may be introduced in evidence for the purpose of
showing that a given act was done maliciously. 33 To be evidentiary in such a
connection the collateral occasion must be so connected with the principal trans-
action by proximity of time and similarity or dissimilarity of conditions as to
render it probable that the same mental state was operative on both occa-
sions.
1014. [Relevancy of Similarity]; Other Mental States. 34 Other mental
states may be proved by evidence of their manifestations on other occasions as
20. Framke v. Hanly, 215 111. 216, 74 N. E.
130 (1905) ; Donovan v. Chase-Shawmut Co.,
201 Mass. 357, 87 N. E. 580 (1909) ; McCar-
ragher v. Rogers, 44 Hun (X. Y.) 628, 8 St.
Rep. 847 (1887); Turner v. Goldsboro Lum-
ber Co., 119 X. C. 387, 26 S. E. 23 (1896).
21. City of Goshen v. England, 119 Ind.
368, 21 X. E. 977, 5 L. R. A. 253 (1889).
22. Maine. Robbins v. Lewiston, etc., Ry.,
107 Me. 42, 77 Atl. 537, 30 L. R. A. (X. S.)
109n, 24 Am. & Eng. Ann. Cas. 92 (1910).
23. Arnold v. Xorton, 25 Conn. 92 (1856) ;
Kittredge v. Elliott, 16 X. H. 77 (1844).
24. Morse v. Com., 129 Ky. 294, 33 Ky. L.
Rep. 831, 111 S. W. 714 (1908). In a prose-
cution for embezzlement the state may prove
other transactions of the defendant not com-
plained of to show that the defendant had
kept his books in a manner different from
what he had said. This is competent as show-
ing a system or scheme adopted by the de-
fendant for obtaining money from his em-
ployer. State v. Downer, 68 Wash. 672. 123
Pac. 1073, 43 L. R. A. (X. S.) 774 (1912).
25. State v. Briggs, 74 Kan. 377. 86 Pac.
447, 7 L. R. A. (X. S.) 278, 10 Am. & Eng.
Ann. Cas. 904 (1906). In a prosecution for
fraudulently uttering a check on an account
containing insufficient funds evidence that the
defendant uttered other checks on the same
account at the same time is admissible to
show guilty knowledge. People v. Bercovitz,
163 Cal. 636, 126 Pac. 479, 43 L. R. A. (N.
S) 667 (1912); State v. Foxton, 166 Iowa
181, 147 X. W. 347, 52 L. R. A. (X. S.) 919
(1914).
26. People v. Dolan, 186 X. Y. 4, 78 X. E.
569, 116 Am. St. Rep. 521, 9 Am. & Eng.
Ann. Cas. 453 (1906).
27. Gray v. State, 44 Tex. Cr. App. 470, 72
S. W. 169 ( 1903 ) . In a prosecution for keep-
ing intoxicating liquors with intent to sell
them evidence is admissible of the seizure of a
large quantity of liquor and of the account
books of the defendant showing the purchase
of quantities of liquor. State v. Barr, 94 Vt.
38, 77 Atl. 914, 48 L. R. A. (X. S.) 302
(1910).
28. Martin v. State. 10 Ga. App. 795, 74
S. E. 304 (1912): Territory v. Caldwell, 14
X. M. 535. 98 Pac. 167 (1908).
29. People v. Doty, 175 X. Y. 164. 67 X. E
303 (1903).
30. People v. Hagenow, 236 111. 514, 86 X.
E. 370 (1908).
31. 4 Chamberlayne, Evidence, 3239
32. Com. v. Holmes. 157 Mass. 233, 32 N.
E. 6. 34 Am. St. Rep. 270 (1892).
33. Henry v. People. 198 111. 162. 65 N. E.
120 (1902).
34. 4 Chamberlayne, Evidence, 3240,
3241.
1015,1016 RELEVANCY OF SIMILARITY; MOEAL. 764
in case of claim to property, 35 good faith 36 or its absence 37 or emotions such,
as purpose, 38 consent, 39 waiver 40 and the like.
1015. [Relevancy of Similarity] ; Motive. 41 While motive is not so much,
in most cases, a constituent as a probative fact, it usually being immaterial
with what motive a crime was committed where it is established by the use of
direct evidence, it may be conveniently observed, in this connection, that the
motive with which an act was done may be established by evidence of similar
transactions at about the same time, by which the practical operation and influ-
ence of the motive was manifested. 42
1016. [Relevancy of Similarity] ; Unity of Design. 43 Evidence as to what
was done on other occasions may be used with especial probative force either to
show that particular conduct took place on another occasion, to identify the
person by whom the act was done, or to establish the mental state under which
he did it, when the several occasions have such a relation, in their similar or
dissimilar features, as to show that they all were, or might properly be regarded
as being, manifestations of a single purpose.
Several persons may unite in the effort to accomplish a given result ; each
doing on a separate occasion some act assumed to be calculated to advance the
end in view relying upon the co-operation of his associates to supply the other
elements which may be relied upon for the attainment of a successful result.
This instance of unity of design may properly be regarded as the relevancy of
a common purpose. 44 On the other hand, a single individual may resolve upon
the attainment of a definite object, innocent or criminal, supposed to be profit-
able or meritorious. Various acts, on a number of occasions, may be done by
such a person, in the effort to reach the object in view and adapted for that
end ; either by procuring means for its attainment, securing an opportunity
ES
35. Irvin v. Patchin, 164 Pa. St. 51, 30 Atl. 324 (1875) ; Missouri, etc., R. Co. of Texas
436, 35 W. X. C. 341 (1894). v. Mayfield, 29 Tex. Civ. App. 477, 68 S. W.
36. Rice v. Bancroft, 11 Pick. (Mass.) 469 807 (1902).
(1831) ; Hunt, T. & Co. v. Reynolds, 9 R. I. 41. 4 Chamberlayne, Evidence, 3242.
303 (1869): Walker v. Town of Westfield, 42. People v Morse, 196 N. Y..306. 89 N.
39 Vt. 246 (1867) ; Lackarie v. Franklin, 12 E. 816 (1909). Motive, see note, Bender, ed.,
Peters (U.S.) 151, 9 L. ed. 1035 (1838). 146 X. Y. 270. Proof of motive, see note,
37. Rex v. Win' worth, 4 Car. & P. 441 Bender, ed., 136 N. Y. 457.
(1830). 43. 4 Chamberlayne. Evidence, 3243-
38. Com. v. Robinson. 146 Mass. 571, 16 3245.
N. E. 452 (1888). Declarations of the tes- 44. Xeff v. Landis, 110 Pa. St. 204, 1 Atl.
tator made after the execution of a will are 177 (1885).
admissible to show that he tore a will with Proof of conspiracy is not essential to the
intent to revoke it. Burton v. Wylde, 261 111. admissibility of the evidence itself. Cox Shoe
397, 103 X. E. 976. Mfp. Co. v. Adams, 105 Iowa 402, 75 X. \V.
39. Montgomery v. Crossthwait, 90 Ala 553, 316 (1898). Reasonable proof of a conspir-
8 So. 498, 24 Am. St. Rep. 832, 12 L. R. A. acy may, however, be demanded before the
140 (1890). agency of one alleped conspirator may be
40. Lambert v. Schmalz, 118 Cal. 33. 50 properly held to affect those claimed to be his
Pac. 13 (1897); Andre v. Hardin, 32 Mich. associates.
765
DISSIMILARITY.
1017
for the use of these means, removing obstacles which may threaten the success
of the enterprise ; or, in case of a criminal offense, by eliminating circumstances
likely to assist in the detection and punishment of the principal act to which
these successive steps are subservient. These and similar occurrences may be
said to be fairly typical of the influence of a continuous purpose. 45
"
1017. Relevancy of Dissimilarity. 46 The probative use of other occasions
of the conduct of a given individual presenting dissimilar features to those ex-
hibited on the occasion under investigation may be said to proceed, as it were,
45. Com. v. Robinson, 146 Mass. 571, 578,
16 X. E. 452 (1888).
Common Purpose Shown. On the trial of
a defendant for unnatural acts with women
evidence is admissible that he had committed
other similar acts of the same nature. Frank
v. State, 141 Ga. 243, SO S. E. 1016. In a
prosecution for any of the sexual crimes ex-
cept rape evidence of other acts of the same
nature either before or as late as fourteen
months after the crime charged may be put
in evidence. The law takes notice of the fact
that there is an extreme probability of the
continuance of such relations and such evi-
dence is admissible to show the sexual rela-
tions of the parties covering the date of the
indictment. Rape is excepted a& it would be
an extraordinary case where one would com-
mit rape a second time upon the same person.
State v. Reineke, 89 Ohio St. 390, 106 N. E.
52, L. R. A. 1915 A 138 (1914). In a prose-
cution for taking a bribe evidence is admis-
sible that the defendant had taken other
bribes recently and had solicited from others
systematically as this evidence shows his guilt
according to logic and reason. So other
bribes after the crime charged may be shown.
People v. Duffy, 212 X. Y. 57. 105 X. E. 839,
L. R. A. 1915 B 103 (1914). In a proceeding
against a commissioner of deeds for making
a false certificate where his knowledge of the
falsity of the certificate is in issue the state
to show intention may prove similar acts
done under similar circumstances at about
the same time with intent to defraud the
same person by the same means The com-
mon method, purpose and victim formed the
connecting links which strung together the
various efforts to defraud pursuant to a com-
mon scheme. People v. Marrin, 205 X. Y.
275. 98 X. E. 474. 43 L. R. A. (X. S.) 754
(1912). In a prosecution for rape evidence
is admissible of other acts of intercourse be-
tween the parties when near enough in point
of time to show the existence of amorous in-
clinations at the time charged. They do not
suddenly arise and are not likely to suddenly
disappear and hence it is that their indul-
gence prior to or subsequent to the specific
occasion charged may tend to increase and
strengthen the proof as to that occasion.
This appears when they are so related by
brevity of time or continuity or otherwise as
to justify the inference that the mutual dis-
position of the parties existed at the time
of it. People v. Thompson, 212 X. Y. 249,
106 X. E. 78, L. R. A. 1915 D 236 (1914).
Common Purpose Lacking. In a prosecu-
tion for rape evidence of another rape com-
mitted on a companion of the prosecutrix im-
mediately after the crime on the prosecutrix
is not admissible as mere proximity in time is
not enough to establish causal connection with
the crime in question. People v. Gibson, 255
111. 302, 99 N. E. 599, 48 L. R. A. (X. S.) 236
(1912). In a complaint for arson evidence
is not admissible that other fires were set by
the defendant where each fire was a separate
transaction as in this country evidence of
other crimes is not admissible. People v.
Grutz, 212 X. Y. 72, 105 X. E. 843, L. R. A.
1915 D 229 (1914). Where one is charged
with setting fire to his yacht evidence is not-
competent that another yacht and an auto-
mobile belonging to him had been previously
over-insured and burned as this is simply
evidence of other crimes unconnected with the
one in question. Fish v. United States. 132
C. C. A. 56. 215 Fed. 544, L. R. A. 1915 A
S09 (1914). In a prosecution for sodomy
evidence is not admissible of other sodomies
committed by the defendant at other times
and places and under wholly disconnected cir-
cumstances with other parties. Such testi-
mony would have the tendency to put in is=ue
these other acts and cloud the issue and con-
fuse the jury. State v. Start, 65 Or. 178,
132 Pac. 512, 46 L. R. A. (X. S. ) 266 <1913).
1018 RELEVANCY OF SIMILARITY; MORAL. 766
by means of what may be called moral or psychological induction. The infer-
ence that A. did a particular act is not, as a rule, directly created by evidence
that, on another occasion when the alleged stimulus was present, he acted in a
different manner; or that, on another occasion when a different stimulus was
present, he acted in the same manner as upon the particular occasion in ques-
tion. .Xo additional probative force is, in most cases, directly added to the
proof that A. did the particular act in question by the operation of any rele-
vancy of dissimilarity. The probative force of this particular method of using
evidence of what was done upon other occasions by a particular individual is
usually applied at another stage, i.e., at that of corroboration of an affirmative
case already established by other evidence.
In any particular case the res gestae may be equivocal as to the mental state
of the person in question ; certainly, not clear beyond a reasonable doubt. The
obvious and frequently the sole administrative expedient is to broaden the tield
of inquiry beyond the res gestae of the particular case by introducing in evi-
dence proof of what happened upon other occasions so related to the facts under
investigation that by the elimination, or as it were, the cancellation of innrma-
tive hypotheses or explanations the steady line or channel of a single sufficient
operative cause may be shown to run through the entire series of connected
transactions and stand revealed as the real mental state of the person in question
throughout them all.
1018. [Relevancy of Dissimilarity]; Psychological Induction. 47 Closely
analogous in operation and effect to the method of natural induction, 48 by which
the operation of a particular cause is established as efficient in producing given
results upon physical phenomena by the use of other occasions similar or dis-
similar in their antecedents, is the employment of what may be called psycho-
logical induction; by which the presence and operation, both in kind and
degree of intensity, of a particular mental state on a given occasion may be
established by showing other times at which it was present, so adjusted to the
principal occurrence as to prove a similar operative force in both or to elimi-
nate counter infirmative suggestions, or by both methods in combination.
To state the rule in a slightly different form, in case of a forensic necessity
for proving the existence of a given mental state on a particular occasion, ad-
ministrative indulgence may take the form of permitting proof of other trans-
actions in which the mental state was exhibited ; provided such a connection
shall appear to exist between the two transactions, the collateral and the present,
as to render it probable that the same mental state was present on both occasions.
The occurrence must, however, relate to the acts of the person in question and
not to those of third persons.
46. 4 Chamberlayne, Evidence, 3246. v. Potter, 62 App. Div. (X. Y.) 521, 71 X.
47. 4 Chamberlayne, Evidence, 3247. Y. Suppl. 134 (1910) ; Patterson v. Smith, 73
48. Birmingham R., etc., Co. v. Franscomb, Vt. 360, 50 Atl. 1106 (1901).
124 Ala. 621, 27 So. 508 (1899) ; Millspaugh
767 INFEBEXCES OTHEK THAX CONDUCT. 1019-1022
1019. Inferences Other Than Conduct. 49 It is to be observed that the infer-
ence which is excluded by the principle under consideration, except in the
event of an adequate forensic necessity and some special ground of relevancy
other than mere similarity, is simply that a person did a particular act on one
occasion because he did a similar one at another. In other words, that which
is excluded is inference of conduct based upon moral uniformity in response
to particular stimuli.
1020. [Inferences Other Than Conduct] ; Constituent Facts. 50 The res
gestae of one transaction may properly, and even at times necessarily, involve
proof of acts of conduct which might well form the res gestae of another.
Nothing in the principle under investigation forbids such a use of the acts done
on another occasion, provided their evidentiary employment as part of the
res gestae of the pending action or proceeding is reasonable ; a fortiori, if it is
necessary.
The right of a litigant to prove the res gestae of his case is a fundamental
one and will be protected by the court in any civil case, although making such
proof may involve the establishment of the facts of other transactions.
For example in actions for negligence it may be necessary to show other
facts as where knowledge is in issue. 51 Even in criminal cases, the prosecu-
tion is not debarred from the orderly a.nd necessary proof of its case against
the prisoner by the fact that to do so involves proving that the accused com-
mitted another offense at another time. 52
1021. [Inferences Other Than Conduct] ; Contradiction. 53 Evidence of
similar occurrences may be received regardless of the principle in question
when not offered as probative on the issue of conduct but as a purely delibera-
tive fact relevant for some independent purpose. For example, the evidence
may be used to contradict the evidence of a witness. 54
1022. [Inferences Other Than Conduct] ; Corroboration or Explanation. 55
In much the same way, the evidence of what occurred on a similar occasion
may be properly received to corroborate a witness. 56 Evidence of another
49. 4 Chamberlayne, Evidence, 3248. and Weber, etc., 44 Utah 10, 137 Pac. 635.
50. 4 Chamberlayne, Evidence, 3249- 52. People v. Furlong, 140 App. Div. 179.
3252. 125 N. Y. Suppl. 164; affirmed, 201 X. Y. 511,
51. Phila. & Reading R. Co. v. Hendrick- 94 X. E. 1096 (1911.
eon, 80 Pa. St 182, 21 Am. Rep. 97 (1875). 53. 4 Chamberlayne, Evidence, 3253.
Subsequent Repairs. In an action for 54. People v. Doody, 172 X. Y. 165. 64 X. E.
damage to land from an irrigation canal the 807 (1902) : Com. v. House, 36 Pa. Super Ct.
plaintiff may offer evidence of subsequent re- 363 (1908) : State v. Kenny, 77 S. C. 236. 57
pairs which had stopped the damage as this S. E. 859 (1907).
evidence bears both on the question of the 55. 4 Chamberlayne, Evidence, 3254,
probable cause of the damage and on the pos- 3255.
sibility of preventing it; although evidence 56. People v. Rogers, 192 X. Y. 331, 85
of subsequent repairs is not ordinarily admis- X. E. 135, 15 Am. & Eng. Ann. Cas. 177
eible in negligence cases. Jensen v. Davis (1908).
1023 KKI.KVAXCY OF SIMIJ.AIUTY; MOKAL. 768
criminal offense committed by the accused lias, however, been rejected, although
offered for this purpose. 57 This would seem to carry the rule of exclusion to
an unnecessary length, although very possibly justified in a particular case on
the ground that its admission was calculated to prejudice the accused to an
extent disproportionate to the gain to the cause of justice, in much the same
way, evidence of a different transaction may be given in order to afford a rea-
sonable explanation of the res gestae or probative facts under consideration in
the pending case. 58 For example, it may be shown in this way who is the
i l&v kijntoiWvJ
principal in a given transaction. 09
1023. [Inferences Other Than Conduct]; Identification of Doer of Act; Es-
sential Conditions for Conduct. 00 . Prominent among the inferences which may
properly be drawn from the conduct of the given individual on other occasions
are those which arise in connection with what may be called necessary condi-
tions of action upon the occasion in question and which serve to connect a given
individual with the res gestae of that transaction, identifying him as the actor
of these res gestae.
Among such essential conditions of conduct are those of motive, means and
opportunity. The actor must, in most cases, have had a motive for doing that
which he has done. He must, in all cases, have had the means by which it was
done, and the opportunity for using these means for achieving the result at-
tained. Any other conditions of time, space and causation which the res gestae
or probative facts show must be met by the actual doer of the act and proof of
them, even as shown on other occasions, is often a necessary method of circum-
stantial proof.
When the doing of the act must be established by circumstantial evidence it
must be shown that the alleged actor was possessed of the particular powers
the possession of which is implied by the doing of the act which may be es-
tablished by his conduct on other occasions. 61 So knowledge may be shown by
other acts of the person showing knowledge, 62 and opportunity G:{ and the neces-
sarv presence of the alleged actor or his necessary skill 64 mav be proved by
i , i i /. i
evidence of other conduct of his.
'
57. People v. Schweitzer, 23 Mich. 301 there are no eye-witnesses of the accident.
(1871). Zucker v. Whitridge, 205 X. Y. 50, 98 X. E.
58. Bigcraft v. People. 30 Colo. 208, 70 200, 41 L. R. A. (X. S.) 683 (1912).
Pac. 417 (1902) ; Mitchell v. People, 24 Colo. 59. Woodward v. Buchanan, 39 L. J. Q. B.
532, 52 Pac. 671 (1898). Evidence of the 71, L. R. 5 Q. B. 285, 22 L. T. 123 (1872).
custom of the decedent in crossing railroad 60. 4 Chamberlayne, Evidence, 3256-
tracks is not competent as to his negligence 3261.
on a particular occasion where there were 61. Blalock v. Randall. 76 Til. 224 (1875).
eye-witnesses of the accident. The court re- 62. Du Bois v. People, 200 Til. 157, 65 N.
marks that the relevancy of the evidence does E. 658. 03 Am. St. Rep. 183 (1002).
not outweigh the inconvenience of a multitude 63. State v. Eitzsimon, IS R. I. 236, 27
of collateral issues not suggested by the plead- Atl. 446, 49 Am. St. Rep. 766 (1893) .
ings the trial of which would take time, tend 64. Com. v. Choate, 105 Mass. 451, 457
to create confusion and do little good. Tn (1870).
some courts such evidence is received when
769 INFEBEXCES OTHER THAN CONDUCT. 1024
Where the question is whether an animal could do a particular act, as
whether it could attain a certain speed it may be shown to have done so on
another occasion. 65
1024. [Inferences Other Than Conduct] ; Probative Facts. 66 Certain facts
such as those of continuance in a mental feeling or change in the same can best
be established by collateral occurrences showing the mental condition at differ-
ent times. In like manner that certain action is habitual, accurate, or the like,
calls, almost of necessity, for proof of appropriate action on other occasions.
With regard to these, the collateral transaction may properly be regarded a
probative fact.
Habit is best proved by specific instances of conduct. Obviously, if the
habit of a person for accuracy in a certain line of work, for example, were in
issue, proof that, on numerous occasions, he had done such work with absolute
accuracy would be relevant and admissible. 67
So where it becomes necessary to prove a change in condition or conduct
evidence of similar occurrences may be relevant and admissible. 68
65. Whitney v. Leominster, 136 Mass. 25 360 (1898); State v. Shaw, 58 N. EL 73
(1883). (1878) ; Davis v. Lyon, 91 X. C. 444 (1884).
66. 4 Chamberlayne, Evidence, 3262- 68. Tilton v. Miller, 66 Pa. St. 388, 5 Am.
3264. Rep. 373 (1870).
67. Ferner v. State, 151 Ind. 247, 51 N. E.
CHAPTER XLVIII.
MORAL UNIFORMITY; CHARACTER,
Necessity, 1026.
Inference of conduct from character, 1025.
Relevancy, 1027.
Rule stated; civil cases, 1028.
criminal cases, 1029.
quasi-criminal cases, 1030.
administratiie details, 1031.
physical or mental impairment, 1032.
trait must be relevant, 1033.
Inferences other than conduct; independent relevancy, 1034.
character a constituent fact, 1035.
character a probative fact, 1036.
Proof of character; reputation is character, 1037.
what witnesses are qualified ; adequate knowledge, 1038.
knowledge of the community, 1039.
remoteness in time, 1040.
absence of controlling motive to misrepresent, 1041.
animals, 1042.
probative force ; reputation, 1043.
proof other than by reputation, 1044.
particular facts, 1045.
animals; illustrative occurrences, 1046.
Weight, 1047.
1025. Inference of Conduct from Character. 1 Character is to be distin-
guished from reputation with which it is sometimes confused, even in judicial
opinions. Reputation, or the opinion concerning .a person which is entertained
by those who are so situated as to be able to form an opinion with more or less
intelligence, may extend to a variety of subjects. For example, it may be a
reputation for musical ability, physical strength, wealth and the like. How-
ever, reputation is more commonly considered as having reference to the dis-
position or character of a person. Thus it is said of a person that he bears a
good reputation, meaning that the person in question has a reputation for
being a person of good character. For the purposes of the present chapter,
1. 4 Chamberlayne, Evidence. 3265-3267.
770
771 XECESSITY. 1026,1027
character may be defined generally as that combination of traits which goes to
make up the moral nature of an individual and serves to distinguish him from
all others.
In most civil cases as in actions for goods sold and delivered, for money
loaned, or services rendered the character of a party to an action can ordinarily
throw no light on the question of the rights of the parties. The reason com-
monly assigned for excluding evidence of character is that it is irrelevant, but
there is another important administrative reason that such evidence would
make trials long and tedious.
1026. Necessity. 2 Character whenever evidentiary at all is primary evi-
dence and no necessity need be shown to warrant its introduction. However,
as actual character is difficult if not impossible to show in evidence, 3 the law
has resorted to the use of reputation to prove character. Eeputation is a
species of hearsay evidence, admitted under an exception to the hearsay rule.
It is in connection with the use of reputation that necessity must appear as is
the case with all classes of hearsay. The necessity for resorting to reputation
lies partly in the difficulty in obtaining other proof and partly because of
legal precedent which excludes the knowledge and opinion of individuals con-
cerning the person whose character is under consideration and evidence of
his conduct, and this often when such evidence might be of great value.
Often especially in criminal cases there is another meaning of necessity
as where there is an entire absence of direct evidence of the facts alleged as in
case of homicide to prove who was the aggressor.
1027. Relevancy. 4 The relevancy of character to prove conduct has a
variety of sources. Among the more important of these, tending to prove
good conduct, may be mentioned the force of habit, religious sanction and self
respect. That a person of good character has a decided tendency to conduct
himself consistently therewith merely from force of habit cannot be doubted,
but probably self respect and religious sanction, either acting singly or together,
may be regarded as more powerful influences. In most criminal cases, the
character of the accused is clearly relevant on the question whether or not he
committed the crime of which he is charged. A case can scarcely be con-
ceived in which this would not be true, where the offense alleged involves a
moral quality. The habitua} regard or disregard for right doing as evidenced
by a person's character cannot fail to have its effect upon hi? conduct whenever
he is confronted with the necessity for acting in one direction or the other.
This fact, well known to all thinking persons, gives to character its probative
force or relevancy by way of raising an inference as to conduct.
So character may be useful in cases where it is necessary to prove criminal
2. 4 Chamberlayne, Evidence, 3268- 4. 4 Chamberlayne, Evidence, 3270-
3269. 3272.
3. Ex parte Vandiveer. 4 Cal. App. 650, 654,
88 Pac. 993 (1907), per Chipman, P. J.
1028,1029 MORAL UNIFORMITY; CHARACTER. 772
intent as in homicide or in prosecutions for having counterfeit money with
intent to utter it.
1028. Rule Stated; Civil Cases. 5 It may be laid down as the modern gen-
eral rule that, in civil actions, evidence of the character of a party is not ad-
missible for the purpose of raising an inference as to his conduct. 6
It should be observed that only as furnishing a basis for an inference of
conduct is evidence of character excluded. Where character is relevant for
any other purpose, it is admissible in all cases. For example, the character
of the female for chastity has been received in actions for breach of promise
of marriage. 7 Likewise, proof of a person's character may be relevant and
admissible for the purpose of mitigating damages. Thus, where the plaintiff
seeks damages because of an injury to his reputation, the defendant may show
that the plaintiff's character and reputation at the time of the alleged injury
was such that he suffered slight damage or no damage at all. 8
1029. [Kule Stated] ; Criminal Cases. 9 In criminal cases, it is a well es-
tablished general rule that the prosecution may not introduce evidence of the
character of the accused for the purpose of raising an inference that the latter
is guilty of the crime for which he is being tried. 10 The rule is one of ad-
ministrative policy. The source of it may be found in the principle of the law
of English speaking people, which obtains in criminal actions, that the ac-
cused is presumed to be innocent until he is proven guilty. 11 It would clearly
be difficult to maintain this presumption of innocence in the minds of the
jurors if testimony were given of a long list of crimes alleged to have been
committed by the accused.
But where the accused takes the stand as a witness he waives his rights in
this regard and his character may be impeached as that of any other witness. 12
So evidence of the bad character of a third person may be admitted whenever
it is relevant as in some cases of homicide 13 where the character of the de-
5. 4 Chamberlayne, Evidence, 3273, 13. " On all doubtful questions as to who
3274. was the aggressor, the violent or blood-thirsty
6. Colburn v. Marble, 196 Mass. 376, 82 N. character of the deceased, if such be his char-
E. 28, 124 Am. St. Rep. 559 (1907). acter, enters into the account: More prompt
7. Von Storch v. Griffin, 77 Pa. St. 504 and decisive measures of defense are justified
(1875). when the assailant is of known violent and
8. Wood v. Custer, 86 Kan. 387, 121 Pac. blood-thirsty nature." De Arman v. State,
355, 38 L. R, A. (N. S.) 1176 (1912). 71 Ala. 351, 361 (1882), per Stone, .T. The
9. 4 Chamberlayne, Evidence, 3275- defendant in a homicide case may show the
3279. Of character of accused in criminal general reputation of the deceased as to being
cases, see note, Bender ed., 182 X. Y. 67, 83. a lawless and violent character but not spe-
10. State v. Hull, 18 R. I. 207, 26 Atl. 191, cific acts on the part of the deceased. Terri-
20 L. R. A. 609 (1893). tory v. Lobato. 17 X. M. 666, 134 Pac. 222,
11. See, People v. Fitzgerald, 156 X. Y. L. R. A. 1917 A 1226 (1913). In an action
253, 260, 50 X. E. 846 (1898). for assault and battery where the defence is
12. Halloway v. People, 181 111. 544, 54 self-defence, the defendant may show that the
N. E. 1030 (1899). plaintiff's reputation for turbulence and vio-
773 QUASI CRIMINAL. 1030
ceased may be shown or in prosecution for rape where Consent may appear
through the bad character of the prosecutrix for chastity. 14
The defendant in a criminal action may in all cases give evidence of his
good character. 15 Character being always relevant in a criminal case, it fol-
lows that it is admissible whenever it is not excluded by some reasons of ad-
ministrative policy. In regard to the good character of the accused, no reason
exists for exclusion on the ground of policy, the situation being quite different
from that which is confronted when bad character is sought to be shown.
When the accused has introduced evidence of his good character, the protection
thrown around him by the rule excluding evidence of bad character is neces-
sarily withdrawn and the state may thereupon give such evidence of his bad
character as may be obtainable. 16
The inference of guilt or innocence of the accused is deliberative only and
only a slight degree- of probative force can be accredited to it. Where the
prosecution may introduce evidence of the bad character of the accused it is a
very valuable opportunity harmful to the accused.
1030. [Rule Stated] ; Quasi Criminal Cases. 17 Certain actions which are
conducted as civil actions and are commonly spoken of as being such are in
reality on the border line between civil and criminal actions. Features be-
longing to both classes of actions are to be found in them. Frequently the
state of facts out of which the cause for the civil action arises makes the de-
fendant liable to criminal prosecution also. It would seem, upon principle,
that evidence of the character of a party should be received in the majority
of such cases as readily as in criminal cases, for the same reason and subject to
the same rules. The courts, however, have commonly held that evidence of
character of a party is not admissible in such cases.
This rule prevails in actions for penalties 18 or where criminal charges are
made in civil suits 19 as in actions for bastardy 20 or conversion 21 or injuries
lence is bad, even though there has been no Bender ed., 179 N. Y. 316, 326. Character of
evidence that it was good where the defendant accused as defense in homicide, see note, Ben-
knows this reputation as this may well jus- der ed.. 189 X. Y. 409. 422.
tify him in thinking that he is in danger 16. Com. v. Maddocks, 207 Mass. 152. 93
Davenport v. Silvey, 265 Mo. 54.3, 178 S. W. N. E. 253 (1910).
168, L. R. A. 1916 A 1240 (1915). Veracity distinguished from Peacefulness.
14. People v Gray, 251 111. 431, 96 X. E. The fact that a defendant in a criminal
268 (1911). case offers evidence of his good character for
15. People v. Hinksman. 192 X. Y. 421, 85 truth and veracity does not deprive him of
X E. 676 (1908). Previous good character his presumption of good character for peace
is not a defence to a charge of crime but and quietness as the two are to be ditin-
may have weight where the evidence is con- guished. Durham v State. 128 Tenn. 636. 163
flicting. State v. McGuire. 84 Conn. 470. SO S. W. 4-47. 51 L. E. A. (X. S.) 180 (1913).
Atl. 761, 38 L. E. A. (X. S.) 1045 (1911). 17. 4 Chamberlayne, Evidence, 3280-
Propriety of good character of accused, see 32S5
note. Bender ed.. 43 X. Y. 6. Of good char- 18. Hall v. Brown. 30 Conn. 551 (1862).
acter in criminal cases, see note. Bender ed., 19. Contra. Hein v. Foldrige. 78 Minn. 468,
33 X. Y. 611. Of good character, see note, 81 N. W. 522 (1900) (seduction). Evidence
| 1031,1032
MORAL UNIFORMITY; CHARACTER.
774
to the person as assault and battery 22 though it is often admitted in actions
for slander. 23 In cases where immoral conduct not amounting to a crime is
charged the evidence is commonly excluded. 24
1031. [Rule Stated] ; Administrative Details. 25 The judge presiding at
the trial, in his administrative capacity, must avoid an improper presentation
of character evidence to the jury by observing certain well-settled rules limit-
ing the use of such evidence and keeping it within the logical bounds of rel-
evancy. The proof of character received must be with reference to a trait
which logically has some probative weight in assisting to reach a conclusion
on the question at issue. In other words, the trait of character proved must
be the same as that involved in the commission of the offense charged. None
but qualified witnesses must be allowed to testify. A witness must have been
in a position to learn the reputation of the person in question during the period
covered by the inquiry, which must be limited to a time prior to the date when
the alleged offense involved in the action may reasonably be regarded as affect-
ing such reputation.
1032. [Rule Stated] ; Physical or Mental Impairment. 26 A condition of
physical or mental impairment is to be distinguished from a trait of character.
of a reputation for good character is not ad-
missible according to the weight of the au-
thorities even to rebut a charge of fraud.
Great Western Life Ins. Co. v. Sparks, 38
Okla. 395, 132 Pac. 1092, 49 L. R. A. (N. S.)
724 11913) ; Wilson Lumber Co. v. Atkinson,
162 N. C. 298, 78 S. E. 212, 49 L. R. A. (N.
S.) 733 (1913). Evidence of character for
honesty may be admitted in defence of a civil
action quasi criminal in nature for selling
bad meat as this involves moral turpitude.
De Weese v. People, 61 Colo. 140, 156 Pac.
594, L. R A. 1916 E 326 (1916), citing text.
In disbarment proceedings though civil in na-
ture the defendant may put in evidence of his
good character Lenihan v. Commonwealth,
165 Ky. 93, 170 S. W. 948, L R. A. 1917 B.
1132 11915). Where in an action on an in-
surance policy t deceased is charged with
fraud evidence of his reputation for integrity
and truth is admissible as he is dead and the
jury cannot pass upon his credibility by ob-
serving his appearance on the stand. Ras-
musson v. North Coast Fire Ins. Co., 83
Wash. 569, 145 Pac 610, L. R. A. 1915 C 1179
(1915).
20. Low v. Mitchell. 18 Me. 372 (1841).
21. Wright v. McKee. 37 Vt. 161 (864).
22. Givens v. Bradley, 3 Bibb. (Ky.) 192,
6 Am. Dec. 646 (1813); Noonan v. Luther,
20t) N. Y. 105, 99 N. E. 178 (1912) ; Smith-
wick v. Ward, 52 N. C. (7 Jones' L.) 64, 75
Am. Dec. 453 (1859). See also, Denton v.
Ordway, 108 Iowa 487, 79 N. W. 271 (1899).
23. Sheehey v. Cokley, 43 Iowa 183, 186,
22 Am. Rep. 236 (1876), per Day, J.
Contra: Hallowell v. Guntle, 82 Ind. 554
(1882) ; Stone v. Varney, 7 Mete. 86 (1843) ;
Com. v. Snelling, 15 Pick. 337 (1834); Fin-
ley v. Widner, 112 Mich. 230, 70 X. W. 433
(1897). In an action for libel where there
is a plea of justification, it is error to allow
the plaintiff, in his case-in-chief, to introduce
evidence of his good character. Blakeslee v.
Hughes, 50 Ohio St. 490, 34 X. E. 793 (1893).
24. Lamagdelaine v. Tremblay, 162 Mass.
339, 341, 39 X. E. 38 (1894). ' A defendant
in an indictment for adultery may show that
the woman with whom he is charged with
committing adultery was a woman of good
character and reputation. Glover v. State,
15 Ga. App. 44. 82 S. E. 602. In a complaint
for non-support the wife's adultery cannot be
proved by evidence of the wife's bad reputa-
tion for chastity coupled with evidence of
frequent opportunity for adultery. Land v.
State, 71 Fla. 270, 71 So. 279, L. R. A. 1916
E 760 (1916).
25. 4 Chamberlayne, Evidence. 3286.
26. 4 Chamberlayne, Evidence, 3287.
775
TKAIT RELEVANT.
1033
The former is more easy of proof by direct evidence than the latter, making
recourse to composite hearsay unnecessary. Consequently, it has become a
well established principle that general reputation in the neighborhood is not
admissible to prove what the physical or mental condition of a person was at
a particular time. Thus the state of a person's bodily health 27 or his mental
condition with respect to sanity 28 cannot be proved by evidence of reputation as
to those matters.
1033. [Kule Stated] ; Trait must be Relevant. 29 It is a rule well enforced
by reason and sanctioned by authority that character evidence, introduced for
the purpose of laying a basis for an inference as to conduct, must be limited to
proof of the existence of the particular trait or group of traits involved in the
doing of an act like the one which is the subject of the investigation in which
the evidence is offered. 30 This is for fhe obvious reason that proof of the
possession or non-possession, by the person whose conduct is sought to be
proved, of some other trait does not tend to enlighten a reasoning mind as to
the probabilities of the conduct of that person. 31 Such proof is irrelevant.
For instance, that a man possesses a good character for loyalty to his sovereign
is of no avail to him when on trial for murder. 32
Following this rule in prosecutions for adultery the character of the person
for chastity is admissible, 33 in arson cases his character for honesty, 34 in as-
sault his character as a peacable citizen, 35 while in burglary he may not show
that his work as a former policeman had been satisfactory. 36 In a prosecution
for carrying concealed weapons his character as a peacable citizen is relevant, 37
31. " It has never been the practice in this
State to permit a witness, in support of his
character for veracity, to prove that he has
been honest in his dealings, or moral and free
from vice. It does not follow that because a
man deals honestly, and is otherwise moral,
he is therefore truthful. Nor is it believed
that because a man is not fair, or is im-
moral, he is therefore untruthful " Tedens v.
Schumers, 112 111. 263, 267 (1884), per Mr.
Justice Walker.
32. Trial of Capt. Wm. Kidd, 14 How. St.
Tr. 123, 146 (1701).
33. State v. Donovan, 61 Iowa 278, 16 N.
W. 130 (1883) ; Com. v. Gray, 129 Mass. 474,
37 Am. Rep. 378 (1880).
34. See State v. Emery, 59 Vt. 84, 7 Atl.
129 (1886).
Schleagel, 50 Kan. 325, 31 Pac.
State v. Dalton, 27 Mo. 13
27. Mosser v. Mosser's Ex'r, 32 Ala. 551
(1858) ; Home Circle Society v. Shelton (Tex.
Civ. App 1!)04), 81 S. W. 84.
28. Biddle v. Jenkins, 61 Neb. 400, 85 N.
W. 392 ( 1901 ) . " Public opinion declared Co-
pernicus a fool, when he promulgated the
planetary system ; and Columbus a fool when
he announced the sublime idea of a New
World. Hazardous in the extreme would it
be to the rights of the parties under the law,
.if they were allowed to depend upon the opin-
ion of a neighborhood of the sanity of indi-
viduals." Foster v. Brooks, 6 Ga. 287, 292
(1849), per Nisbet, J.
29. 4 Chamberlayne, Evidence. 3288:
3306.
30. '' In all criminal prosecutions, whether
for a felony, or for a misdemeanor, the pre-
vious good character of the accused, having
reference and analogy to the subject of the
prosecution, is competent and relevant as orig-
inal testimony." Kilgore v. State. 74 Ala. 1,
7 (183), per Brickell, C. J. To same effect
see United States v. Wilson, 176 Fed. 806
(1910).
35. State v
1105 (1893)
(1858).
36. State v. Coates, 22 Wash. 601, 61 Pac.
720 (1900).
37. Lann v. State. 25 Tex. App. 495, 8 S.
W. 50, 8 Am. St. Rep 445 (1888).
1034,1035 MORAL UNIFORMITY; CHARACTER. 776
and in actions for fraud his character for honesty, 38 and in homicide cases his
peaceableness, 39 while in illegal liquor cases he may not show his reputation
as a peaceful citizen. 40
In cases of attacks on women the chastity of the female is often relevant 41
and in infanticide cases the humane disposition of the accused, 42 in larceny his
reputation for honesty, 43 while in libel cases the reputation of the accused
for veracity is not relevant. 44 In perjury cases reputation for truth is ad-
missible 45 and in rape cases his reputation for chastity, 46 in prosecutions for
receiving stolen goods his reputation for honesty, 47 and in seduction his repu-
tation for virtue. 48 * .
1034. Inferences Other Than Conduct; Independent Relevancy. 49 The re-
strictions and limitations to the use of character evidence which have been dis-
cussed in the preceding sections of this chapter apply only where the proof
of character is offered as a basis for an inference as to conduct. Whenever
character is relevant as a basis for any other inference, it is admissible with-
out restriction. Character may be an issue in the case. Under such circum-
stances, the method of making the proof is, in some instances, the same as when
character is used in its evidentiary capacity ; but, aside from that, this use of
character has no connection with the law of evidence.
1035. [Inferences Other Than Conduct] ; Character a Constituent Fact. 50
In actions of breach of promise to marry specific acts of unchastity on the
part of the plaintiff are relevant as a complete defence to the action 51 and it is
38. State v. Dexter, 115 Iowa 678, 87 N. 45. State v. Kinley, 43 Iowa 294 (1876) ;
W. 417 (1901) (obtaining goods under false Edgington v. U. S., 164 U. S. 361, 17 S. Ct.
pretenses). 72, 41 L. ed. 467 (1896).
39. People v. Bezy, 67 Cal. 223, 7 Pac. 643 46. State v Snover, 63 N. J. L. 382, 43
(1885); People v. Stewart, 28 Cal. 395 Atl. 1059 (1899): State v. Wolf, 112 Iowa
(1865): Kahlenbeek v. State, 119 Ind. 118, 458, 84 N. W. 536 (1900).
21 N. E. 460 (1888); Walker v State, 102 47. Hey v. Com., 32 Grat. (Va.) 946, 34
Ind. 502, 1 X. E 856 (1885) ; Basye v. State, Am. Rep. 799 (1879).
45 Nebr. 261, 63 N. W 811 (1895) ; Gandolfo Possessing Counterfeit Money. " When a
v. State, 11 Ohio St. 114 (I860). man is arrested with counterfeit money in
40. Baehner v. State, 25 Ind. App. 597, 58 his possession, ... he may relieve the charge
NT. E. 741 (1900). thus placed upon him by proof of former
41. Com. v. Kendall, 113 Mass. 210, 18 Am. character, showing that he would not be likely
Rep 469 (1873). to be engaged in that class of business."
42. State v. Cunningham, 111 Iowa 233, 82 United States v. Kenneally. 26 Fed Caa No.
X. W. 775 (1900). 15.522, 5 Biss. 122 (1870), per Blodgett, J.
43. People v. Chrisman, 135 Cal. 282. 67 48. State v. Curran, 51 Iowa 112, 49 N. W.
Pac. 136 (1901); Long v. State, 11 Fla. 295 1006 (1879).
(1867) : State v Bloom, 68 Ind. 54. 34 Am. 49. 4 Chamberlayne, Evidence, 3307.
Rep. 24" (1879) ; People v. Ryder, 151 Mich. 50. 4 Chamberlayne, Evidence, 3308
187. 114 X. W. 1021, 14 Det Leg. X. 912 51. McKane v. Howard, 202 N. Y. 181, 95
<1908). N - E. 642, 25 Am. & Eng. Ann. Ca8. 960
44 State v. Heacock, 106 Iowa 191, 76 N. (1911).
W. 654 (1898).
777 A PEOBATIVE FACT. 1036, 1037
also competent to show her general bad character 52 which may be rebutted by
proof of general good character. 53
Under prosecutions for seduction where the statute provides that the female
must have been of previous chaste character specific acts of lewdness may be
shown 5 "* but general bad reputation for chastity is not competent 55 while if
the statute requires that she must be of good repute specific acts are not
relevant while general reputation may be shown. 56
In some cases the reputation of the parties must be determined before dam-
ages can be fixed as in actions for breach of promise of marriage 57 or malicious
prosecution 5S or seduction 59 or slander. 60
1036. [Inferences Other Than Conduct] ; Character a Probative Fact. 61
The character of a person may be evidentiary in connection with its effect
upon the belief or knowledge of another person. It may also throw some light
on the intent or motive w T ith which an act was done.
For example in negligence cases the knowledge of the employer of the in-
competency of the agent may be shown by evidence of his reputation for in-
competency 62 and in homicide cases the reputation of the deceased for turbu-
lence is competent to show the fear of the accused 63 and reputation may be
shown to prove good faith of the defendant in proceedings for malicious prose-
cution 64 and it may be competent to show motive or intent. 65
1037. Proof of Character ; " Reputation is Character.'* 66 Notwithstanding
the undoubted probative value of evidence of particular acts and the knowledge
and opinion of individuals in arriving at a just estimate of a person's char-
acter, it is the almost universal rule that character must be proved by evidence
52. McCarty v. Coffin, 157 Mass. 478, 32 58. O'Brien v. Frazier, 47 N. J. L. 349, 1
N. E. 649 (1892). Atl. 465, 54 Am. Rep. 170 -(1885).
53. See McKane v. Howard, 202 N. Y. 181, 59. Stewart v. Smith, 92 Wis. 76, 65 N. W.
95 N. E. 642, 25 Am. & Eng. Ann. Cas. 960 736 (1896) (specific acts admissible).
(1911). 60. Lydiard v. News Co., 110 Minn. 140,
54. State v. Prizer, 49 Iowa 531, 31 Am. 124 N. W. 985, 19 Am. & Eng. Ann. Cas. 985
Rep. 155 (1878); People v. Kenyon, 5 Par- (1910).
ker's Cr. Rep. 254 (1862) ; affirmed 26 N. Y. 61. 4 Chamberlayne, Evidence. 3309.
203, 84 Am. Dec. 177 (1863). 62. Cooney v. Commonwealth Ave. St. Ry.
55. State v. Reinheimer, 109 Iowa 624, 80 Co.. 196 Mass. 11, 81 N. E. 905 (1907).
X. W. 669 (1899) ; State v. Prizer, 49 Iowa 63. Abbott v. People, 86 N. Y. 460 (1881).
531, 31 Am. Rep. 155 (1878). 64. Mclntire v. Levering, 148 Mass. 546,
56. State v. Atterbury, 59 Kan. 237. 52 20 X. E. 191, 2 L. R. A. 517, 12 Am. St. Rep.
Pac. 451 (1898) ; State v. Bryan, 34 Kan. 63, 594 (1889).
8 Pac. 260 (1885): Russell v. State, 77 Xeb. 65. Kee v. State, 28 Ark. 155 (1873);
519. 110 X. W. 380 (1906): Foley v. State, Davis v. State, 10 Ga. 101 (1851). See also
59 X. J. L. 1, 35 Atl. 105 (1896) ; Bowers v. State v. .Tones. 14 Mo. App. 595 (1883) : Peo-
State, 29 Ohio St. 542 (1876). pie v. Gleason, 1 Xev. 173 (1865) ; Hogan v.
57. Burnett v. Simpkins. 24 111. 264 State, 36 Wis. 226 (1874).
(I860); Denslow v. Van Horn, 16 Iowa 470 66. 4 Chamberlayne, Evidence, 3310-
(1864); McGregor v. McArthur, 5 U. C. C. 3314.
P. 493 (1856).
1038 MOUAL UNIFORMITY; CHARACTER. 778
of reputation, 67 which is a form of hearsay and may be appropriately desig-
nated as composite hearsay, or a community expression of opinion in which
the individual voices blend and are indistinguishable. The use of reputation
for this purpose is justified on the ground of necessity, other evidence not
being available, as most jurisdictions for reasons of administrative policy ex-
clude evidence of particular acts and personal opinions.
The rule that character must be shown by proof of reputation is universal i;i
except where the witness is impeached where proof of a prior conviction of a
crime may also be shown. As one who leads an exemplary life is seldom
the subject of comment as to his conduct evidence of reputation may often be
negative in character and a witness who had been in a position to hear any-
thing said may testify that he never heard any discussion concerning the mat-
ter 69 but this negative evidence is limited to evidence of good character. 70
The reputation must be general in character 71 and be more than mere rumors, 72
though rumors may be inquired about in cross-examination. 73
1038. [Proof of Character] ; What Witnesses are Qualified; Adequate Knowl-
edge. 74 .Before a witness can testify as to the reputation of a person he must
have adequate knowledge in regard thereto. 75 His personal opinion concern-
ing it is inadmissible. 76 The circumstances of each case must control the
determination of these questions to a great extent. The decisions indicate that
it is largely a matter for administrative discretion. 77 Although residence by
67. Hunneman v. Phelps, 199 Mass. 15, 85 for veracity. The witness should be first
N. E. 169 (1908). introduced by showing through his residence
68. State v. Coates, 22 Wash. 601, 61 Pac. or business relationship his opportunities for
726 (1900); People v. Haydon (Cal. App. knowing about the person to be impeached
1912), 123 Pac. 1102; Basye v. State, 45 Nebr. and then he should be asked whether he knows
261, 63 N. W. 811 (1895). what the reputation for truth and veracity of
69. Hallowell v. Guntle, 82 Ind. 554 (1882). the party in question is. If his answer to
See Davis v. Foster, 68 Ind. 238 ( 1 879 ) ; Na- this is in the affirmative he may then be
tional Bank v. Scriven, 63 Hun (N. Y.) 375, asked what this reputation is.
18 N. Y. Suppl. 277, 44 N. Y. St. Rep. 331 74. 4 Chamberlayne, Evidence, 3315-
(1892). 3317.
70. See Lenox v. Fuller, 39 Mich. 268 75. Campbell v. Bannister, 79 Ky. 205, 2
(1878). Ky. L. Rep. 72 (abstract) (1880*); R. v.
71. Vickers v. People, 31 Colo. 491, 73 Pac. Rowton, 10 Cox Cr. C. 25, 11 Jur. (N. S.)
845 (1903). 325, L. & C. 520, 34 L. J. M. C. 57, 11 L. T.
72. Powers v. Presgroves, 38 Miss. 227 Rep. (N. S.) 745, 13 Wkly. Rep. 436 (1865).
(1859). "Adequate knowledge of the prevailing opin-
73. " It is certainly competent on cross- ion on the subject is a prerequisite to the
examination of a witness who testified as to admissibility of such evidence." Allison's
defendant's good moral- character to ask Exec. v. Wood, 104 Va. 765, 771, 52 S. E.
whether there have not been rumors or re- 559, 7 Am. & Eng. Ann. Cas. 721 (1906), per
ports in the community as to his bad charac- Whittle, J.
ter with reference to particular transactions." 76. State v. Thoemke, 11 X. T> 386, 92 N.
State v. Kimes, 152 Iowa 240, 249, 132 N. W. W. 480 (1903) ; Holsey v. State. -24 Tex. App.
180 (1911), per McClain, J. 35, 5 S. W. 523 (1887).
Practical Suggestions. There is only one 77. Hadjo v. Gooden, 13 Ala. 718 (1848)
proper way to put in evidence of reputation (witness lived twelve miles away, but stated
779 KNOWLEDGE OF COMMUNITY. 1039
the character witness in the vicinity where the reputation in question obtains
is commonly spoken of as being essential, it is simply a convenient term in-
dicating more or less continued presence in the vicinity. It is the means
and extent of the knowledge of the witness irrespective of residence which is
logically controlling. 78 That the witness should be acquainted personally
with the one whose character is under consideration is not logically essential.
It is not necessary that he should have heard the majority of the members of
the community express themselves in reference to the matter. 79
Cross-examination may freely examine into the extent and sources of knowl-
edge 80 and the appellate 'court may reverse where a witness has not sufficient
knowledge. 81
1039.. [Proof of Character] ; Knowledge of the Community. 82 The com-
munity or neighborhood in which an admissible reputation may exist must be
one in which the person in question is well known.
It used to be said that this was the community where he resided 83 but in
modern times a man may be less known where he lives than in the neighbor-
ing city where he works and it seems a better rule that his reputation where
he is best known should be used. 84 The " community " means a place of such
size as to make possible the growth of an unbiased reputation 85 and his repu-
tation at the place of trial is of no moment as such. 86 Reputation at his
former residence may be introduced where he has lived in his present abode
but a short time. 87 Cross-examination may properly be concerned with the
size and character of the community, the- length of time he has spent there and
the opportunity of the community for knowing the character of the person in
question.
that he knew the reputation of the person in tained of him [person inquired about] by
question in the latter's neighborhood. Com- his acquaintances, he is competent to speak,
petent) ; State v. McLaughlin, 149 Mo. 19, 50 subject to cross-examination, as to sources,
S. W. 315 (1899) (witness resided in a town extent, and correctness of his information."
five miles from person in question. Compe- Cunningham v. Underwood, 116 Fed. 803, 811,
tent) ; People v. Seldner, 62 App. Div. (N. Y.) 53 C. C. A. 99 (1902), per Lurton, J.
357, 71 N. Y. Suppl. 35 (1901) (witness 80. State v. Holly, 155 N. C. 485 (1911).
knew party for fifteen years, knew a great 81. Moore v. Dozier, 128 Ga. 90, 57 S. E.
mat i!">!>lo who knew him and had conversed 110 (1907).
with i hem concerning him. Competent) ; 82. 4 Chamberlayne, Evidence, 3318-
Com. v. Wilson, 44 Pa. Super. Ct. 183 (1910) 3326.
(witness had seen party only a few hours 83. Younger v. State, 80 Neb. 201, 114 N.
each year when on annual vacation visits and W. 170 (1907).
did not know any people who knew him. In- 84. State v. Henderson, 29 W. Va. 147, 168,
competent). 1 S. E. 225 (1886), per Johnson, Pres.
78. State v. Cunningham, 130 La. 749, 58 85. Thomas v. People, 67 N. Y. 218, 224
So. 558, 559 (1912). (1876), in state prison.
79. Robinson v. State, 16 Fla. 835 (1878) ; 86. Fry v. State, 96 Term. 467, 35 S. W.
Cunningham v. Underwood, 116 Fed. 803, 53 883 (1895).
C. C. A. 99 (1902). "If the witness has 87. Pape v. Wright, 116 Ind. 502, 510, 19
heard enough to enable him to say that he N. E. 459 (1888).
thinks he knows the prevailing opinion enter-
1040,1041 MORAL UNIFORMITY; CHARACTER. 780
Evidence of good reputation can be rebutted only by evidence of bad reputa-
tion. Evidence of specific acts of misconduct is inadmissible for that pur-
pose. 88
The trial judge is properly allowed a wide discretion in various details relat-
ing to the use of character and unless this discretion has been abused it will not
be reversed on appeal. 89 He may for example limit the number of the wit-
nesses 90 or exclude them entirely if the character is admitted by the other
side. 91
1040. [Proof of Character] ; Remoteness in Time. 92 It has been sometimes
judicially intimated that the remoteness of the time when the reputation of
which proof is offered existed should not be considered as affecting the ad-
missibility of the evidence, but that it should be received in all cases and the
jury allowed to give it whatever weight seems proper. 93 However, that the
trial judge may in the exercise of his administrative function exclude evidence
of a reputation which existed at a remote date seems reasonably clear upon
authority. 94 This view is logically correct as otherwise the time of the court
might often be occupied in considering almost, if not quite, worthless testimony.
1041. [Proof of Character] ; Absence of Controlling Motive to Misrepre-
sent. 95 To render evidence of a person's reputation in a given community
admissible, there should exist in that community no motive or cause to build
up an apparent reputation because of prejudice or partisanship. In order that
this result may be obtained the reputation which is received in evidence for
the consideration of the jury must be one that was acquired by the person in
question before the proceedings in which the reputation is sought to be used
could have influenced it in any way, that is, the reputation must have been
established ante litem motam. QG
An exception to the rule herein stated is commondly recognized in the case
of a witness. Where the person whose reputation is sought to be shown is a
witness, his reputation for truth and veracity may be shown down to the
moment of testifying. 97 As the object of the rule excluding evidence of a
reputation formed post litem motam is to avoid having the reputation colored
or affected in any way as -a result of the alleged existence of the facts upon
88. Bullock v. State, 65 N. J. L. 557, 47 (1878). See also Jones v. State, 104 Ala. 30,
Atl. 788, 86 Am. St. Rep. 668 (1900). See 16 So. 135 (1893).
People v. Nunley, 142 Cal. 441, 76 Pac. 45 94. State v. Barr, 11 Wash. 481, 492, 39
(1904). Pac. 1080, 48 Am. St. Rep. 890, 29 L. R. A.
89. State v. Potts, 88 Iowa 656, 43 N. W. 154 (1895), per Hoyt, C. J.
534. 5 L. R. A. 814 (1889). 95.4 Chamberlayne, Evidence, 3329-
90. State v. Albanes (Me. 1912), 83 Atl. 3330.
548. 96. State v. Johnson, 60 N. C. (Winston's
91. Beard v. State, 44 Tex. Cr. App. 402, L.) 151, 152 (1863), per Battle, J.
71 S. W. 960 (1903). 97. Smith v. Hine, 179 Pa. St. 03, 36 Atl.
92. 4 Chamberlayne, Evidence, 3327. 222 (1897).
93. State v. Lanier, 79 N. C. 622, 623
781 ANIMALS. 1042,1043
which the liability of the defendant, in the action in which the reputation is
sought to be used, is founded, 98 it must be that the Us mota, using the term in
its broad sense, is initiated at the moment when those facts become known to
the public, as at that moment discussion logically may be assumed to com-
mence and the reputations of the various persons connected with the transac-
tion to undergo change."
1042. [Proof of Character] ; Animals. 1 Common experience indicates that
an animal will act even more consistently in harmony with its disposition
or character than will one of the human race. This being the case, it follows
that evidence of an animal's character in respect to a particular trait is of
material assistance in determining how the animal conducted itself on a
certain occasion. It would seem, therefore, that evidence of an animal's char-
acter, or what might more properly be called its disposition, should be received
in all cases where the animal's conduct on a given occasion is in question. 2
1043. [Proof of Character]; Probative Force; Keputation. 3 In theory, the
probative force of the general reputation of a person in a community where
he is well known as evidence of his character lies in the following more or less
generally accepted ideas: that, under ordinary conditions, a person cannot
conceal his real self from those with whom he frequently associates, that the
character of one's associates is a natural and most interesting topic of con-
versation making inevitable an intelligent and generally unprejudiced dis-
cussion of the character of each member of a community by the other members,
resulting in a crystallized general expression which sums up the moral worth
of each individual in the community.
The test is often unreliable as the reputation of an individual may suffer
from isolated imprudent acts or from false rumors while another more discreet
may conceal his true character from the community. Furthermore modern
city life has rendered all more ignorant as to the character of their neighbors
than formerly, but still the practice of using reputation only as evidence of
character presents a striking advantage in avoiding the introduction of col-
lateral issues 4 and conserving the time of the court and it is a fact which may
be easily proved or disproved. 5
98. White v. Com., 80 Ky. 480, 486, 4 Ky. defence for a m'te. Tubbs v. Shears (Okla.
L. Rep. 373 (1882). 1916), 155 Pac. 549, L. R. A. 1916 D 1032.
99. State v. Malonee, 154 X. C. 200, 202, 3. 4 Chamber layne, Evidence, 3332-
69 S. E. 786 (1910). 3339.
1. 4 Chamberlayne, Evidence. 3331. 4. "The danger of allowing a witness to
2. Broderick v. Higginson, 169 Mass. 482, testify directly as to moral character rather
48 N. E. 269. 61 Am. St. Rep. 269 (1897). than as to general reputation in the commu-
The fact that the defendant knew that his dog nity is that the witness' knowledge of char-
had bitten a third party is enough to charge acter must almost necessarily be based on
the defendant with knowledge of the vicious specific acts of immorality, and to allow such
character of the dog even though the dog acts to be gone into with the consequent right
acted in self-defence as self-defence is not a of rebutting the testimony as to such specific
MORAL, UNIFORMITY; CHARACTER. 782
Such evidence may be tested on cross-examination in various ways as by
a demand for specifications to support evidence of bad character 6 or by incon-
sistent statements by the witness, 7 or by specific facts showing the contrary of
the character claimed. 8
1044. [Proof of Character] ; Proof Other Than by Reputation ; Inference by
Observers. 9 As a matter of principle, evidence of a probative force in the
proof of character, superior at times to that of reputation in the community,
might have been utilized and a rule, other than the one based upon the prin-
ciple that " reputation is character " developed. Character might have been,
and should properly be, regarded as provable by evidence of the effect of its
manifestation upon the mind of an observer or upon that of a jury. It is
settled, however, that this class of evidence is inadmissible to establish char-
acter, 10 either as part of an original case or on rebuttal. 11 This is the more
remarkable as the early law admitted this species of evidence in the present
connection. 12 It is of no consequence under the rule that the observer is
entirely competent to form an illuminating opinion and has had adequate
opportunities for observing the conduct of the person in question. 13
Cogent arguments against its use are the danger of raising collateral is-
sues, 14 or creating unfair surprise, 15 or a prejudice. 16
1045. [Proof of Character; Proof Other Than by Reputation]; Particular
Facts. 17 Finally, the law of evidence might, with good reason, admit as
proof of actual character not only the inferences of observers and probative
instances of the manifestation of the trait in question, but also probative in-
dividual facts which tend circumstantially to establish the existence of a
material trait. Proof of character is, however, confined to proof of reputa-
tion. Specific facts and circumstances, though tending to prove the reputa-
acts would be to introduce immaterial col- 11. State v. Grinden, 91 Iowa 505, 60 N.
lateral issues and complicate the trial." W. 37 (1894).
State v. Blackburn (Iowa 1907), 110 N. W. 12. Jones' Case, 31 How. St. Tr. 251, 309
275, 277, per McClain, J. (1809).
5. Barton v. Morphes, 13 N. C. (2 Dev. L.) 13. Hart v. McLaughlin, 51 App. Div. (X.
520, 521 (1830). Y.) 411, 64 N. Y. Suppl. 827 (1900); Saw-
6. Leonard v. Allen, 11 Cush. (Mass.) 241 yer v. People, 91 X. Y. 667, 1 X. Y. Cr. 249
( 1853 ) ; Sawyer v. Eifert, 2 Xjatt & M. ( S. C. ) ( 1883 ) .
511, 10 Am. Dec. 633 (1820). 14. People v. Van Gaasbeck, 189 X. Y. 408,
7. Jackson v. State, 78 Ala. 471 (1885); 82 X. E. 718, 22 L. R. A. (X. S.) 650n., 12
State v. Dove, 156 X. C. 653, 72 S. E. 792 Am. & Eng. Ann. Cas. 745 (1907).
(1911). 15. Bodwell v. Swan, 3 Pick. (Mass.) 376,
8. People v. Elliot, 163 X. Y. 11, 57 X. E. 378, 15 Am. Dec. 228 (1825).
103 (1900). 16. Coleman v. People, 55 X. Y. 81, 90
9. 4 Chamberlayne, Evidence, 3340- (1873).
3342. 17. 4 Chamberlayne, Evidence, 3343-
10. People v. Van Gaasbeck. 189 X. Y. 408, 3345.
82 N. E. 718, 22 L. R. A. (X. S.) 650n., 12
Am. & Eng. Ann. Cas. 745 (1907).
783 AXIMALS. 1046,1047
tion or confirm the statements of witnesses regarding it are excluded. Neither
good 1S or bad 19 character can be proved by specific facts.
1046. [Proof of Character; Proof Other Than by Reputation]; Animals; Il-
lustrative Occurrences. 20 Evidence may be given of the behavior of an animal
on particular occasions for the purpose of showing the possession of a trait
relevant to the inquiry. 21 In this way it may be proved, for example, that a
horse is gentle 2 - or is vicious 23 or that a dog 24 or a bull 25 is vicious and
dangerous to mankind. It is not necessary that the occurrences should have
preceded the occasion upon which the existence of the trait in question is
rendered important by the evidence. 26
Furthermore an observer may state the inference as to a relevant trait of
character which he has gained from his observation of the animal. 27 The
arguments which exclude this evidence in case of individuals of collateral
issues, unfair surprise, and prejudice are not so weighty in case of animals.
1047. Weight. 28 Great variety of opinion is manifested by courts as to
what probative weight should properly be attached to the inference of conduct
from character. So great is the variety which different cases present in this
particular that generalization can seldom be helpful to any marked degree.
It may, however, not be entirely without value to suggest that while the in-
ference of conduct from character is, when the res gestae of any particular
case are established by direct evidence, at best but a deliberative one, it may,
when the res gestae are to be proved by circumstantial evidence, be more highly
probative, especially in connection with the corroborative influence of other
facts. The evidentiary weight of the inference will be found, moreover, to
increase in proportion as the psychological element becomes constituent pr
probative.
18. Jones v. Duchow, 87 Cal. 109, 23 Pac. U S. 22, 9 Sup. Ct. 696, 33 L. ed. 110 (1888),
371, 25 Pac. 256 (1890) ; Taylor v. State, 120 sustaining this point in Kennon v. Gilmer, 5
Ga. 857. 48 S. E. 361 (1904), honorable dis- Mont. 257, 6 Pac. 847, 51 Am. Rep 45 (1885).
charge as soldier. 24. Broderick v. Higginson. 169 Mass. 482,
19. People v. Christy, 65 Hun (N. Y.) 349, 48 X. E. 269, 61 Am. St. Rep. 296 (1897) ;
20 X. Y. Suppl. 278, 8 X. Y. Cr. 480, 47 X T . Kessler v. Lockwood, 62 Hun 619, 16 X. Y.
Y. St. Rep. 924 (1892), keeping disorderly Suppl. 677, 42 X. Y. St. Rep. 563 (1891);
house; State v Castle. 133 X. C. 769. 46 S. Robinson v. Marino, 3 Wash. 434, 28 Pac. 752,
E. 1 (1903); Cheney v. State, 7 Ohio 222 28 Am. St. Rep. 50 (1892).
(1835) ; Holsey v. State, 24 Tex. App. 35, 5 25. Rogers v. Rogers, 4 X. Y. St. Rep. 373
S. W. 523 (1887). Proof of other offenses. (1887).
see note, Bender ed., 186 X. Y. 4. 15. 26. Kennon v. Gilmer. 131 U. S. 22, 9 Sup.
20. 4 Chamberlayne, Evidence. 3346- Ct. 696, 33 L. ed. 110 (1888), sustaining the
3348. point in Kennon v. Gilmer, 5 Mont. 257, 6
21. Broderick v. Higginson, 169 Mass. 482. Pac. 847, 51 Am. Rep. 45 (1885).
48 N. E. 269. 61 Am. St. Rep. 296 (1897). 27. Sydleman v. Beckwith, 43 Conn. 9
22. Stone v. Pendleton, 21 R. I. 332, 43 (1875) ; Xoble v. St. Joseph, etc., Ry. Co., 98
Atl. 643 (1899). Mich. 249, 57 X. W. 126 (1893).
23. Whittier v. Franklin, 46 X. H. 23, 88 28. 4 Chamberlayne, Evidence. 3349-
Am. Dec. 185 (1S65) ; Kennon v. Gilmer, 131 3353.
CHAPTER XLIX,
PUBLIC DOCUMENTS.
Public documents; definition of, 1048.
principle controlling admissibility, 1049.
objection that they should not be removed, 1050.
equally admissible as copies, 1051.
where not kept in strict conformity to statutory requirements, 1052.
authentication; necessity of, 1053.
mode of, 1054.
legislative acts; domestic, 1055.
ordinances, 1056.
^papers and documents relating to affairs of state, 1057.
compelling production of, 1058.
1048. Public Documents ; Definition of. Public documents may properly
be defined as records kept or writings executed by public functionaries as such
in the executive, legislative and judicial departments of a government within
which would be included acts of state, such as executive messages and procla-
mations, records of the executive departments, legislative acts and proceedings,
judicial records and generally transactions which official persons in the per-
formance of their duties as such are required, either expressly or impliedly,
to enter of record. 1
1049. [Public Documents] ; Principle Controlling Admissibility. 2 The
fundamental principle underlying the admission of this class of evidence is
that the writings are made by an accredited public official in the performance
of an express or implied mandate of the law ; express in the sense that the law
in so many words requires the making of them ; implied where in the perform-
ance of the duties imposed by law it is necessary to make them. With this
duty thus imposed its proper performance is presumed in view of the fact that
they are made under the sanction either of an oath or under that of official
duty. 3
1. 5 Chamberlayne, Evidence, 3354. edge and observation. Foreign acts of state
Public documents have been defined as " acts and the judgments of foreign courts also be-
of public functionaries, in the executive, legis- long to the class of public documents." Tay-
lative and judicial departments of govern- lor, Ev., 1470. See also, Oreenleaf. Ev.,
ment: including, under this general head, the 470. 5 Chamberlayne, Evidence, 3355.
transactions which official persons are re- What are public records, see note, Bender ed.,
quired to enter in books or registers, in the 138 N. Y. 399.
course of their public duties, and which occur 2. 5 Chamberlayne, Evidence, 3355.
within the circle of their own personal knowl- 3. Ferguson v. Clifford, 37 N. H. 86
784
785 COPIES, ETC. 1050-1053
1050. [Public Documents] ; Objection That They Should Not be Removed.
The objection to the admission of the originals on the ground that they should
not be removed from their proper depository is accorded little weight. 4 While
their removal is not to be commended, yet, on the other hand, their rejection
for any such reason is not favored.
1051. [Public .Documents] ; Equally Admissible as Copies The authenticity
of a record having been established to the satisfaction of the presiding judge,* 5
it will be received in evidence in proof of the facts stated therein, being equally
admissible as a transcript or copy thereof would be.' The latter purports to
correctly transcribe matters contained in the former and can certainly be
placed on no higher plane, if as high a one, as the original. 8 Nor is it material
that a statute provides that' copies of a record shall be received and is silent in
regard to the record itself, 9 such a provision not being considered as exclu-
sionary 1(l or restrictive but rather as cumulative. 11
1052. [Public Documents] ; Where not Kept in Strict Conformity to Statutory
Requirements. Some minor defect in the making of a record not required
by law to be kept or a non-compliance with some express provision of law, which
may be regarded as directory merely, will not generally be considered as a
fatal defect justifying the exclusion of the writing. 12 This principle is illus-
trated in records of judicial proceedings 13 as well as in other cases.
1053. [Public Documents]; Authentication; Necessity of A record offered
as an original should be properly and sufficiently authenticated. It is essential
that the writing should be shown to be that which it purports to be. When
this is satisfactorily established it will be received; otherwise it will be re-
(1858) ; Gaines v. Relf, 12 How. (U. S.) 472, Manning v. State, supra; Dobbs v. Justices'
570, 13 L. ed. 1071 (1851). See Sturla v. Inferior Court, etc., 17 Ga. 624 (1855).
Freccia, 5 App. Cas. (D. C.) 623 (1880). 9. Green v. Indianapolis, 25 Ind. 490
4. Stevenson v. Moody, 85 Ala. 33, 4 So. (1865); Miller v. Hale, 26 Pa. 432 (1856);
595 (1887) ; Gray v. Davis, 27 Conn. 447; 5 Sheehan v. Davis, 17 Ohio St 571 (1867).
Chamberlayne, Evidence. 3357. 10. Miller v. Hale, supra.
5. Lewis v. Bradford, 10 Watts (Pa ) 67 11. Rainey v. State, 20 Tex. App. 455
(1840) ; Garrigues v. Harris, 17 Pa. St. 344 (1886). Thus, where the purpose is to prove
(1851). Thus originals from a notary's office the doings of selectmen of a town the orig-
may be received Priou v. Adams, 5 Mart. X. inal record may be introduced. Jay v. Car-
S. (La) 691 (1827). thage, 48 Me. 353 (I860). So a pardon is
6. State v. Voight, 90 X. C. 741 (1884) . properly proved by the production of the char-
7. Sellers v. Page, 127 Ga. 633, 56 S. E. ter of pardon itself under the great seal of
1011 (1906) ; Carp v. Queen Ins. Co, 203 Mo. the state. State v. Blaisdell, 33 X. H. 388
295, 101 S. W. 78 (1906); People v Gray, (1856).
25 Wend. (X. Y.) 465 (1841) : Harmening v. 12. People v. Eureka Lake and Yuba Canal
Rowland, 25 X. D 38. 141 X. W. 131 (1913) : Co.. 48 Cal 143 (1874) ; Mason v. Belfast
Manning v. State, 46 Tex. Cr! 326. 81 S. W. Hotel Co., 89 . Me 384, 36 Atl. 624 (1896) ;
957 (1904); 5 Chamberlayne. Evidence, 5 Chamberlayne, Evidence, 3358, n. 1, and
3357, n 2, and cases cited. cases cited.
8. Gray v. Davis, 27 Conn. 447 (1858); 13. See 1059: 5 Chamberlayne, Evidence,
3373, infra.
1054
PUBLIC DOCUMENTS.
786
jected, 14 unless the necessity of proof is dispensed with by the parties admit-
ting its authenticity. 15
Execution Denied. Where, though a paper or record thereof is produced
from the proper official custody, its execution is denied, neither it nor the
record will be received without further proof of the genuineness of the in-
strument. 10
1054. [Public Documents]; Authentication; Mode of. 17 If the la i v pre-
scribes a certain form for proving a record which is adopted by the proponent
there should be a compliance therewith. 18 As a general rule, however, an
instrument or record need not, in all cases, necessarily show upon its face the
proper authentication. 19 Proof of the custody from whence it comes may be
satisfactory to the tribunal in which it is offered. 20 ' Similarly an admission
to the effect that the writing comes from the proper depository may satisfy the
requirement 21 and dispense with the necessity of further authentication.
Genuineness of documents may also be sufficiently shown by the testimony of
the proper custodian that they are authentic, 22 or. where he cannot testify to
this effect, the testimony of a prior holder of the same office may be received. 23
Xor will the fact of an irregularity in the official oath of the custodian of
records affect their admissibility where their genuineness is sworn to by him. 24
14. Tyres v. Kennedy, 126 Ind. 523, 26 N.
E. 394 (1890) ; People v. Etter, 81 Mich. 570,
45 X. W. 1109 (18'JO); Alexander v. Camp-
bell, 74 Mo. 142 (1881); Jackson v. Miller,
6 Wend. (N. Y.) 228, 21 Am. Dec. 316
(1830); Keim v. Rankin, 40 Wash 111, 82
Pac, 169 (1905); 5 Chamberlayne, Evidence,
3359, n 1, and cases cited.
15. Miller v. Hale, 26 Pa. 432 (1856).
Thus a paper marked " filed in the county
clerk's office " but not signed or certified,
there being no other evidence showing where
it came from or when it was made, was re-
jected. Atchison & X. R. Co. v. Maquilkin.
12 Kan. 301 (1873). The fact, however, that
the officials designated do not sign the record,
as provided in a statute simply operates,
where such failure is not made fatal to admis-
sibility, to impose upon the proponent the
obligation to show by other evidence the au-
thenticity of the record. People v. Eureka
Lake & Yuba Canal Co.. 48 Cal. 143 (1874).
Similarly, the absence of an official seal will
not constitute a sufficient reason for the re-
jection of the instrument, where its authen-
ticity may be established by parol. Glaspie
v. Keator, 56 Fed. 203, 5 C. C. A. 474 (1893).
16. Craw v. Abrams, 68 Xeb. 546, 94 X. W
639, 97 N. W. 296 (1903) ; 5 Chamberlayne,
Evidence, 3360. It would seem, however,
that where the identity of the purported
signers of the instrument is not in question
and the record is made in conformity to law,
it or a copy thereof should be received, Kello
v. Maget, 18 X. C. 414 (1835), it being open
to the alleged obligors to show that though
it purports to have been executed by them,
it, in fact, never was. Short v. Currie, 53
X. C. (8 Jones L.) 42 (I860).
17. 5 Chamberlayne, Evidence, 1054.
18. Coler v. Board of Com'rs of Santa Fe
County, 6 X. M. 88, 27 Pac. 619 (1891). See
also, Morgan County Bank v. People, 21 111.
304 (1859).
19. Olaspie v. Keator, 56 Fed. 203, 5 C. C.
A. 474 (1893).
20. Sumner v. Lebee, 3 Me. 223 (1824);
Richardson v. Smith, 1 Allen (Mass.) 541
(1861).
21. Little v. Downing, 37 X. H. 355 (1858).
22. Stewart v. Conner, 9 Ala. 803 (1846) ;
Williams v. Jarrot, 6 111. 120 (1844): Pem-
broke v ' Allenstown. 41 X H. 365 (1860).
23. Sanborn v. School Dist. Xo. 10, 12 Minn.
17 (1866).
24. Mason v. Belfast Hotel Co., 89 Me. 384,
36 Atl 624 (1896). See also Day v. Peas-
ley, 54 Vt. 310 (1881).
787 LEGISLATIVE ACTS. 1055
In case, also, of a mutilation as where the certificate of authentication has been
torn off, the necessary proof may be supplied by the testimony of the clerk
in whose custody it had been placed. 25 The testimony of a third person is also
frequently received for the purpose of identifying and establishing the genuine-
ness of a record or instrument offered in evidence. 26
1055. [Public Documents] ; Legislative Acts; Domestic. 27 State public laws
need not ordinarily be authenticated when offered in evidence in State courts
since such courts take judicial notice of such public laws and of such other
statutes as the legislature or the constitution may require that they shall
know. 28 Private statutes, however, with some exceptions 29 are not judicially
known to the courts, 30 and must be proved before they will be admitted, in ac-
cordance with the requirements of the particular state. Officially printed copies
are generally admissible under express provision of statute. 31
Foreign. Courts do not judicially know foreign written 32 or unwritten 33
laws, but their existence is a matter of fact 34 which must be proved. This
may be done by a copy properly authenticated in the case of written laws or
by the parol testimony of experts in case of the unwritten. 35 A mode of prov-
ing the former laws is by the production of a book in which they are printed
with proof that such book was officially published by the government whose
laws they purport to contain. 36 This method has been recognized in legisla-
tive enactments in many States. Exclusive thereof, however, the courts in
some jurisdictions early began to receive such copies in evidence, both for the
purpose of proving the laws of a sister State and those of a foreign country. 87
Sister State. The courts of one State do not take judicial notice of the
statutes of another State, 38 they being considered as foreign laws, 39 of which
some satisfactory authentication will be required, the existence of such laws
25. Thompson v. Autry (Tex. Civ. App. 135. See also, Polk v. Butter field, 9 Colo.
1900), 57 S. W. 47. 325, 12 Pac. 216 (1886) ; Jackson v. Jackson,
26. Acme Brewing Co. v. Central R. & B. 80 Md. 176, 30 Atl. 752 (1894); People v.
Co., 115 Ga. 494, 42 S. E. 8 (1902) ; Cuttle McQuaid, 85 Mich. 123, 48 X. W. 161 (1891) ;
v. Brackway, 24 Pa. 145 (1854); Hathaway Lincoln v. Battle, 6 Wend (X. Y.) 475
v. Addison, 48 Me. 440 (1860) ; 5 Chamber- (1831) ; Hanley v. Donoghue, 116 U. S. 1, 29
layne, Evidence, 3361, n. 9, and cases cited. L. ed. 535, 6 S. Ct. 242 (1885) ; 5 Chamber-
27. 5 Chamberlayne, Evidence, 3362. layne, Evidence, 3363, n. 3, and cases cited.
23. 329, supra; 1 Chamberlayne Evidence, 35. Baltimore & 0. R. Co. v. Glenn,. 28 Md.
605. 287 (1867) ; Ennis v. Smith, 14 How. (U. S.)
29. 329, supra; 1 Chamberlayne, Evi- 400, 14 L. ed. 473 (1852).
dence, 609, 610. 36. Ennis v. Smith, supra; The Pawashick,
30. 329 et seg.; 1 Chamberlayne, Evi- 2 Lowell (U. S.) 142 (1872).
dence, 609 et seq. 37. The Pawashick, supra; Jones v. Maffett,
31. 5 Chamberlayne, Evidence. 3362; Bid- 5 Serg. & R. (Pa.) 523, 532 (1820).
dis v. James, 6 Binn (Pa.) 321 (1814). 38. 329, supra; 1 Chamb., Ev., 614.
32. 328, supra; 1 Chamberlayne, Evi- 39. Hempstead v. Reed, 6 Conn. 480
dence, 601. (1827); Bayley's Adm. v. Chubb, 16 Gratt.
33. 323, supra; 1 Chamberlayne, Evi- (Va.) 284 (1862); Hanley v. Donoghue,
dence, 589. supra.
34. 61, supra; 1 Chamberlayne, Evidence,
1056
PUBLIC DOCUMENTS.
'88
being a question of fact. 40 The provision in the Act of Congress of May
26th, 1790, that u The acts of the legislatures of the several States shall be
authenticated by having the seal of their respective States affixed thereto " 41
is considered as only an affirmative act 42 and not exclusive of other methods, 43
as for instance by a sworn copy u or by some mode provided by State law. 45
Aii officially printed edition of the statutes is also in many cases received, 40
sometimes by virtue of statutory enactment, 47 though it seems that to au-
thorize admission in evidence of such a publication it must appear to have
been officially printed. 48
1056. [Public Documents] ; Ordinances. 49 The general rule seems to be to
regard the printed, bound volume of ordinances published by the authority of
a city as prima facie evidence of the existence of the enactments, 50 especially
where the book or pamphlet contains a proper certification of its authenticity, 51
although a seal or attestation is regarded as unnecessary where the ordinances
are published by municipal authority. 52 A printed copy read in evidence from
a newspaper and purporting to be published by authority of the corporation
has been held sufficient, 53 and also a book purporting to contain all the or-
dinances and shown to be in the custody of the corporation. 54
40. Miller v. Macveagh, 40 111. App. 532
(1891); Moyt v. McNeil, 13 Minn. 390
(1868); Ingraham v. Hart, 5 Ohio 255
(1842).
41. The attestation of a public officer is not
required as in the case of when other public
documents of other states are offered in evi-
dence. U, S. v. Johns, 4 Dall. (U. S.) 412
(1806).
42. Ellmore v. Mills, 1 Hayw. (X. C ) 359
(1796).
43. Rothrock v. Perkinson, 61 Ind. 39
(1878); Emery v. Berry, 28 N. H. 473
(1854) ; Martin v. Payne, 11 Tex. 292 ( 1854) ;
5 Chamb., Ev., 3364, n. 6, and casesjcited.
44. Buskirk v. Mulock, 18 N. J. L. 184
(1840) ; Smith v. Potter, 27 Vt. 304 (1855).
45. Merritield v. Bobbins, 8 Gray (Mass.)
150 (1857); U. S. Vinegar' Co v. Foehren-
bach, T4 Hun 435, 26 N. Y. Supp. 632, aff'd
148 N. Y. 58, 42 N. E. 403 (1895).
46. Smith v. Potter, 27 Vt. 304 (1855);
The Pawashick, supra; Emery v. Berry,
supra; Mullen v. Morris, 2 Pa. 85 (1845) ; 5
Chamb., Ev., 3364, n. 9, and cases cited.
47. Merrifield v. Robbins, supra.
48. Wilt v. Culter, 38 Mich. 189, 196
(1878) ; Jones v. Maffett, supra; Van Bus-
kirk v. Mulock, supra; Martin v. Payne,
supra.
49. 5 Chamberlayne, Evidence, 3365.
50. Brighton v. Miles, 151 Ala. 479, 44 So.
394 (1907); McGregor v. Lovington, 48 111.
App. 208 (1892); Boston v. Coon, 175 Mass.
283, 56 X. E. 287 (1900); Campbell v. St.
Louis & Sub. R. Co., 175 Mo. 161, 75 S. W.
86 (1903) ; 5 Chamb.. Ev., 3365, n. 1, and
cases cited. But see District of Columbia v.
Johnson, 1 Mackey (D. C.) 51 (1881). See
Larkin v. Burlington, etc., R. Co., 85 Iowa
492, 52 X. VV. 480 (1892).
51. Heno v Fayetteville, 90 Ark. 292, 119
S. W. 287 (1909)'; Logue v. Gillick, 1 E. D.
Smith (X. Y.) 398 (1852); St. Louis S. W.
Ry. Co. v. Garber, 51 Tex. Civ. App. 70, 111
S. W. 227 (1908) ; 5 Chamb., Ev., 3365, n.
2, and cases cited.
52. St. Louis v. Foster, 52 Mo. 513 (1873).
Their admissibility is not affected by the fact
that the publication is not directly author-
i^ed by law. Birmingham v. Tayloe, 105
Ala. 170, 16 So. 576 (1894); McCaffrey v.
Thomas, 4 Pen. (Del.) 437, 56 Atl. 382
(1903) ; or that by the terms of some enact-
ment a different mode of proof is designated
Birmingham v. Tayloe, supra. Xor need the
fact of their passage be shown. Byars v. Mt
Vernon, 77 III. 467 (1875).
53. Block v. Jacksonville, 36 111. 301
(1865).
54. Birmingham v. Tayloe, supra; Grafton
v. St. Paul M. & M. Ry. Co., 16 X. D. 313,
789 AFFAIRS OF STATE. 1057
Necessity of Authentication. Satisfactory proof of the authenticity of an
ordinance is required. 55 A volume offered in evidence as containing such
acts should show that it purports to be published by the proper authority. 56
A printed statement without any showing of any official authorization for its
publication is insufficient. 57
Statutes; Requiring Keeping of Record or Journal. Where a statute re-
quires that a municipal corporation shall keep a record or journal of its pro-
ceedings in which all acts and ordinances of the corporation shall be recorded,
the original record book of the ordinances of the city, containing the ordinance
in question is admissible 5S when kept in the office of the city clerk, 59 town
clerk (H| or other designated official or produced from the custody of some other
official in whose keeping it properly belongs 61 and by whom it should be
identified. 62 The adoption of an ordinance may also be proved by the min-
utes of the common council kept by the clerk. 63
As to Admission in Evidence of Bound Volumes. A charter or statutory
provision that printed volumes of the ordinances of the city shall be evidence
in all courts, places them as to all suits brought for a violation of them on a
similar footing to statutes so far as relates to the method of proving their
contents. 64
1057. [Public Documents] ; Papers and Documents Relating to Affairs of
State. 05 The admission of publications printed by legislative authority , con-
taining matters relating to affairs of state has been frequently objected to on
the ground that the originals should be produced. The courts have, however,
not regarded this objection as tenable and have generally considered them as
equally admissible as the originals. 66 Thus the journals of the House of
113 X W. 598 (1907). A record hook of the 46, 43 Pac. 392 (1896) ; Boyer v. Yates City,
proceedings of a municipal corporation in 47 111 App. 115 (1892): Jackson v. Kansas
which printed ordinances have been pasted City, etc., R. Co., 157 Mo. 621, 58 S. W.
has been admitted. Ewbanks v. Ashley, 36 32, 80 Am. St. Rep. 650 (1900); 5 Chamb.,
111. 177 (1864). A document which professes Ev., 3367, n. 2, and cases cited.
on its face to be the original ordinance and 59. Selma St. & S. R. Co. v. Owen, 132 Ala.
which is properly authenticated may also be 420, 31 So. 598 (1901).
received. Eichenland v. St. Joseph, 113 Mo. 60. Tipton v. Xorman. 72 Mo. 380 (1880).
395, 21 S W. 8, 18 L. R. A. 590 (1893); 61. Merced County v. Fleming, supra;
where properly filed and produced from the Metropolitan St. R. Co. v. Johnson, 90 Ga.
proper custody. Troy v. Atchison & A. N R. 500, 16 S. E. 49 H892).
Co., 11 Kan. 519 (1873). 62. Greeley v. Hamman, 17 Colo. 30, 28 Pac.
55. Kelly v. State, 160 Ala. 48, 49 So, 535 460 11891)*; Met. St. R. Co. v. Johnson,
(1909). supra.
56. Taylor v. Illinois Cent. R. Co., 154 111. 63. Kennedy v. Newman, 1 Sandf. (X. Y.)
App. 222 (1910); Christensen v. Tate, 87 187 (1848).
Neb. 848, 128 X. W. 622 (1910): 5 Chamb., 64. Xapman v. People, 19 Mich. 352
Ev., 3366, n 2, and cases cited. (1869): Missouri K. & T. R. Co. v. Owens
57. International & G. X. R. Co v Hall, (Tex. Civ. App. 1903), 75 S. W. 579; 5
35 Tex. Civ. App 545, 81 S. W. 82 (1904). Chamb., Ev., 3368. and cases cited.
58. Barnes v. Alexander City. 89 Ala 602 65. 5 Chamberlayne. Evidence. 3369.
(1889) ; Merced County v. Fleming, 111 Cal. 66. Whiton v. Albany City Ins. Co., 109
1057 PUBLIC DOCUMENTS. 790
Lords were early admitted not only to prove the King's address but the address
of the house to the crown, 67 as in fact were the journals of either house to show
the action of that house upon matters before it. us Likewise legislative jour-
nals, 09 as for example the journal of the House of .Representatives of the
United States, 70 are admissible. Similarly a State register containing the
proclamation of a governor has been received to show both the existence of
the proclamation and the facts stated therein. 71 Appendices to the report of
a State adjutant-general printed by the State printer have also been received.' 2
So a book printed in pursuance of a legislative act authorizing it is a public
document and admissible in proof of facts asserted therein 73 and likewise as
to similar volumes or papers printed by authority of the national legislative
body, 74 containing copies of public documents communicated to either House
of Congress by the President of the United States 75 or by the Secretary of
State. American state papers published by order of Congress 76 have also
been admitted in evidence in the investigation of claims to land, 77 the copies
which they contain of legislative and executive documents being as good evi-
dence as the originals from which they were copied 78 and in fact entitled to
the highest authenticity. 79 Similarly a compendium of the census compiled
pursuant to act of Congress and printed at the government printing office is
admissible to show the population of a town. 80 The existence of a blockade
is similarly prima facie shown by a sentence of condemnation for an attempt
to violate it. 81 Likewise official papers of the Confederate government pre-
served by the United States government in the bureau known as the Con-
federate Archives Office or copies thereof are admissible. 82 A government
gazette is not, however, admissible to prove facts of a private nature, it being
confined to those cases where public acts of government or matters of state
are involved. 83
Mass. 24 (1871) ; Bryan v. Forsyth, 19 How. County Drainage Ditch, 30 S. D. 79, 137 N.
(U. S.) 334, 15 L. ed. 674 (1856) ; 5 Chamb., W. 608 (1912).
Ev., 3369, n. 1, and cases cited. 75. Radcliffe v. United Ins. Co., 7 Johns.
67. Rex v. Franklin, 9 St. R. 259 (1731). (N. Y.) 38. 50 (1810).
68. Root v King, 7 Cow. (N. Y.) 613 76. Dutillet v. Blanchard, 14 La. Ann. 97
(1827) ; Jones v. Randall, 1 Cowp. 17 (1774). (1859).
69. Rio Grande Sampling Co. v. Catlin, 40 77. Doe v. Roe, 13 Fla 602 (1871) ; Nixon
Colo. 450, 94 Pac. 323 (1907); Post v. Super- v. Porter, 34 Miss. 697, 69 Am. Dec. 408
visors, 105 U. S. 667, 26 L. ed. 1204 (1881) ; (1858) ; 5 Chamb., Ev., 3369, n. 17, and
5 Chamb., Ev., 3369, n. 9, and cases cited. cases cited.
70. Miles v. Stevens, 3 Pa. 21, 45 Am. Dec. 78. Dutillet v. Blanchard, supra.
621 (1846). 79. Watkins v. Holman, 16 Pet. (U S.)
71. Lurton v. Gilliam, 2 111. 577, 33 Am. 25, 10 L. ed. 873 (1842).
Dec. 430 (1839). 80. Fulham v. Howe, 60 Vt. 351, 14 Atl.
72. Milford v. Greebush, 77 Me. 335 (1885). 652 (1888). See also, 5 Chamb., Ev., 3369,
73. Worcester v. Northborough, 140 Mass. n. 20, and casts cited.
397, 5 N. E. 270 (1886). 81. Radcliffe v. United Ins. Co., supra.
74. Whiton v. Albany City Ins. Co., supra; 82. Oakes v. U. S., 174 U. S. 778, 19 S. Ct.
Lawless v Roddis, 36 Okl. 616, 129 Pac. 864, 43 L. ed. 1169 (1898).
711 (1913). See also, In re Yankton-Clay 83. Del. Hoyo v. Brundred, 20 N. J. L. 328
(1844).
701 COMPELLING PRODUCTION. 1058
1058. [Public Documents] ; Compelling Production of. 84 In the absence of
any statute which may be controlling of the question, the power of the court
to compel the production of public documents while recognized will not except
in very few instances *** be exercised. so
84. 5 Chamberlayue, Evidence, 33ti9a. Corbett v. Gibson, 16 Blatchf. (U. S.) 334
85. State v. Smithers, 14 Kan. 629 (1875) ; (1879) ; Bank v. Springer, 14 Can. S. Ct. 716,
Treasurer v. Moore, 3 Brev. (S. C.) 550 13 Ont. App. 390, 7 Ont. 309 (1887); 5
(1815). Chamb., Ev., 336!>a, n. 2, and cases cited.
86. In re Lester, 77 Ga. 143 (1886) ; Dun- For the reasons underlying the action of the
ham v. Chicago, 55 111. 357 (1870); State courts, see 5 Chamb., Ev., 3369a.
V. Baker, 35 Nev. 1,300, 126 Pac. 345 (1912) ;
CHAPTER L.
JUDICIAL RECORDS.
Judicial records; administrative requirements, 1059.
In same court and in another court, 1060.
Minutes or memoranda; when admissible, 1061.
Judicial records; effect when perfected, 1062.
extent to which admissible, 1063.
justices of the peace, 1064.
probate courts, 1065.
1059. Judicial Records; Administrative Requirements. 1 The judicial rec-
ord itself, which consists of the history of a suit or judicial proceeding from
its commencement to its termination, 2 is of course to be regarded as the
primary proof of any fact contained therein. 3 Proof of its authenticity is in
all cases a prerequisite to its admission in evidence. 4 This may be shown
either by testimony by the keeper of the records, ordinarily the clerk, to the
effect that it is a paper of record from his office or by a proper certificate
from his office to the same effect. 5 Testimony of the judge out of whose court
the record is produced, 6 or the testimony of any competent witness who could
identify the record as the original, 7 may likewise be received for this purpose.
This principle applies not only to the record as a whole but where parts of it
1. 5 Chamberlayne, Evidence, 3370- in which case it would be admissible as an
3374. admission against interest. Krogh v. Mod-
2. Davidson v. Murphy, 13 Conn. 213 ern Brotherhood, 153 Wis. 397, 141 N. W. 276,
(1839); Surge v. Gandy, 41 Neb. 149, 59 45 L. R. A. (N. S.) 404 (1913).
N. W. 359 (1894). 4. Carp v. Queens Ins. Co., 203 Mo. 295,
3. Harper v. Rowe, 53 Cal. 233 (1878); 101 S. W. 78 (1906); Tully v. Lewitz, 98
Day v. Moore, 13 Gray (Mass.) 522 (1859); N. Y. Supp. 829, 50 Misc. 350 (1906); 5
5 Chamb., Ev., 3370. Recitals in record Chamb., Ev., 3371, n. 1.
'may establish jurisdictional facts. See note, 5. Carp v. Queens Ins. Co., supra; Garri-
Bender, ed., 16 N. Y. 180. Pleadings as gues v. Harris, 17 Pa. 344 (185.1) ; 5 Chamb.,
evidence. See note, Bender, ed., 116 N. Y. Ev., 3371, n. 2.
423. 6. Odiorne v. Bacon, 6 Cush. (Mass.) 185
Where a coroner's verdict in an inquest is (1850) ; Kolterman v. Chilvefs, 82 Neb. 216,
required to be sealed up and returned to 117 N. W. 405 (1908) ; 5 Chamb., Ev., 3371,
court and filed it thus becomes a public n. 3.
record and as such is proper to be considered 7. McLeod v. Crosby, 128 Mich. 641, 87
in another proceeding. Foster v. Shepherd, N. W. 883 (1901); State v. Chambers, 70 Mo
258 111. 164, 101 N. E. 411, 45 L. R. A. (N. 625 (1879) : 5 Chamb., Ev., 3371, n. 4. A
S.) 167 (1913). The record of the coroner's statement of counsel that he has the record
verdict is not admissible in evidence in an in court is not sufficient. Azzara v. Waller,
action on an insurance policy unless put in 88 N. Y. Supp. 1040 (1904).
by the insured as part of his proof of death
792
793 Ix SAME COURT, ETC. 10(30
.are offered in evidence, as for instance an execution, 8 though in the latter case
it has been held sufficient if the officer in whose hands the execution was and
by whom the return was made identifies it as the one under which he acted. 9
Such a record or a part thereof offered in evidence must be competent and
material to the issue in order to be admitted. 1 " A judicial record will not
be excluded because of some mere defect or informality in connection with
the making of the record or the papers which form a part thereof. If the
defect is not one which affects the validity of the writing it may well be re-
ceived. 11 Thus, a record of judicial proceedings has been admitted where
the judge or clerk neglected or failed to sign the same as required by statute, 12
though not registered with the official designated by law, 13 though the com-
plaint in a judgment roll was not verified, 14 and though papers constituting
a judgment roll were never attached together in the form of a roll as required
by statute. 15 There should, however, be some evidence showing jurisdiction
of the court. 16 A record is admissible though obtained in an irregular man-
ner, 17 as where it has been improperly permitted by the clerk to be removed, 18
or even though it has been illegally removed. 19
1060. In Same Court and in Another Court. An original judicial record is
admissible in the same court, 20 which is presumed to know its own proceed-
ings and records 21 and will take judicial notice thereof. 22 In any action in
which any fact of record in a judicial proceeding in another court is relevant
such fact may be established by the production of the original record of such
proceeding. 23 Xor will it be any objection to the admission of the proof
offered that the original and not a certified copy is produced 24 even though it
8. Davis v. Ransom, 26 111. 100 (1861); 18. Stevison v. Earnest, 80 111 513 (1875).
Benjamin v. Shea, 83 Iowa 392, 49 X. W. 19. People v. Alden, 113 Cal. 264, 45 Pac.
989 (1891). 327 (1896).
9. Hildreth v. Lowell, 11 Gray (Mass.) 345 20. Manning v. Webb, 136 Ga. 881, 72 S. E.
( 1858) . 401 (1911 ); State v. Logan, 33 Md 1 ( 1870) ;
10. Numbers v. Shelly, 78 Pa. 426 (1875) ; Garrigues v. Harris, supra; 5 Chamb., Ev ,
5 Chamb, Ev., 3372, nn 1, 2. 3375, n. 1.
11. See 1052, supra; 5 Chamb., Ev., 21. \Yardv.Saunders.28X.C.382 (1846).
3358. See also, 344, supra ; 1 Chamb., Ev.,
12. Farley v Lewis, 102 Ky 234, 44 S. W. 683, 684.
114, 19 Ky. L Rep 125.) (1897); Eastman 22. Taylor v. Adams, 115 111. 570, 4 N. E
v. Harteau, 12. Wis. 267 (I860); 5 Chamb., 837 M886); Wallis v. Beauchamp. 15 Tex.
Ev., 3373, nn 2. 3. 303 (1855); 5 Chamb., Ev., 3375, notes
13. Lindsay v. Beaman, 128 X C. 189, 38 3-11
S. E. 811 (1001) 23. Rogers v. Riverside Land, etc., Co., 132
14. Johnson v Puritan Min. Co., 19 Mont. Cal 9, 64 Pac. 95 (1901) ; Odiorne v. Bacon,
30, 47 Pae. 337 (1896) supra ; Osburn v. State, 7 Ohio 212 (1835) ;
15. Sharp v. Sumley. 34 Cal. 611 (1868). Garrigues v. Harris, supra: 5 Chamb., Ev.,
16. Gould v U S., 209 Fed 730, 126 C. C. 3376, n. 1. Contra: Cramer v Truitt, 113
A. 454 (1913) Ga. 967, 39 S. E. 459 (1901): Goldsmith v.
17. Brooks v. Daniels, 22 Pick (Mass.) 498 Kilbourn. 46 Md. 289 (1876U Oglesby v
(1839) : McFadden v. Ferris, 6 Ind App 454, Forman, 77 Tex 647, 14 S W 244 (1890)
32 X. E. 107 (1892) ; 5 Chamb., Ev., 3374, 24. McAllister v. People, 28 Colo. 156, 63
n. 1. Pac 308 (1900); Carp v. Queen Ina. Co.,
1061
JUDICIAL RECORDS.
794
has been provided by statute that proof of the records of one court in those of
another may be so made. 25
1061. Minutes or Memoranda; When Admissible. 26 Where the final record
has not been completed, minutes and entries which are to be used in extending
it will often be admitted. 27 Though perhaps not conclusive until per-
fected, 28 it is to be regarded as the strongest sort of presumptive evidence. 2 *
The original papers have also been received as competent evidence where it is
not shown that the final record has been perfected. 30 Minutes have frequently
been admitted as sufficient evidence of the facts recited where there is no record
required to be kept 31 or where the jua^ment record need only be made if
required by one of the parties. 32
When Not Admissible. There are several decisions which might be taken
as authority for a rule that minutes and entries made prior to the final extension
of the record will not be received in evidence. 33 This principle of exclusion
has been applied to minutes kept by a judge merely for his own convenience 34
as where he has made some memoranda of this character on his calendar 35
supra; Manning v. State, 46 Tex. Cr. 326, 81
S. W. 957 (1904) ; 5 Chamb., Ev., 3376, n. 2
25. Gray v. Davis, 27 Conn. 447 (1858);
Lipscomb v. Postell, 38 Miss. 476, 77 Am.
Dec. 651 (1860). In an action against a
city for causing the destruction of the plain-
tiff's building by fire the record of a suit for
the same fire against a contractor is not ad-
missible in evidence. Johnson Co. v. Phila-
delphia, 236 Pa. 510, 84 Atl. 1014, 42 L. R. A.
(N. S.) 512 (1912). Only clear and direct
evidence is sufficient to cause the conviction
for perjury of one for giving testimony which
resulted in his acquittal of a previous crime.
Allen v. United States, 114 C. C. A. 357, 194
Fed. 664, 39 L. R. A. (N. S.) 385 (1912).
Admissibility of judgment as between other
parties. See note, Bender, ed., 145 N. Y. 607.
Validity of a foreign judgment in rem, Vol
28, X. Y. Rpts Bender, ed., note, p. 511.
Collusiveness of foreign judgment, Vol. 26,
N. Y Rpts., Bender, ed., note, p. 1103 En-
forceability of judgments in another state,
Vol. 22, N. Y. Rpts., Bender, ed , note, p. 556.
Effect of foreign judgment raised here, Vol.
3, N. Y Rpts., Bender, ed., note, p 207.
Discharge not prevent action here on foreign
judgment, Vol. 1, N. Y. Rpts , Bender, ed ,
note, p. 419.
26. 5 Chamberlayne, Evidence, 3377.
3379
27. Townsend v Way, 5 Allen (Mass )
426 (1862): State v. Warady, 78 N. J. L
687, 75 Atl. 977 (1909); Chapman v. Seely,
8 Ohio Cir. Ct. 179, 4 Ohio Cir. Dec. 395
(1891) ; 5 Chamb., Ev., 3377, n. 1.
28. Governor v. Bancroft, 16 Ala. 605
(1849).
29. Gaskill v. State, 64 Ga. 562 (1880);
Read v. Sutton, 2 Cush. (Mass.) 115 (1848).
The recovery of a judgment may be so shown,
McGrath .v. Seagrave, 2 Allen (Mass.) 443
(1861) ; as may also a conviction for an of-
fense, Gandy v. State, 86 Ala. 20, 5 So. 420
(1888) : and a discharge in bankruptcy, Serv-
ian v. Rohr, 66 Md. 95, 5 Atl. 867 (1886).
30. Wharton v. Thomason, 78 Ala. 45
(1884); Sharp v. Lumley, 34 Cal 611
(1868); Morgan v. Burnett, 18 Ohio 535
(1849).
31. Com. v. Bolkom, 3 Pick. (Mass.) 281
(1825); Prentiss v. Holbrook, 2 Mich. 372
(1852) ; 5 Chamb., Ev., 3378, n. 1.
32. Emery v. Whitwell, 6 Mich. 474 ( 1859) .
33. Traylor v. Epps, 11 Ga. App. 497, 75
S. E. 828 (1912); State v, Baldwin, 62
Minn 518, 65 N. W. 80 ( 1895) ; Handly v.
Greene, 15 Barb (N. Y.) 601 (1853); 5
Chamb., Ev , 3379, n 1. Compare Haddon
v. Lundy, 59 X. Y. 320 (1874), holding that
original minutes from which the entries are
made by a surrogate in a book as required by
law are evidence of a higher character even
than the book itself.
34. McCormick v Wheeler, 36 111. 114, 85
Am. Dec 388 (1864).
35. Miller v. Wolf, 63 Iowa 233, 18 N. W.
889 (1884).
795 EFFECT, 1062, 1063
or on the papers in the case, 36 though it would seem that they might be used
as memoranda to refresh the memory of the judge 37 in the absence of other
or higher evidence. 38
1062. Judicial Records; Effect When Perfected. 39 Where the record has
been perfected it or a certified copy thereof then becomes the only evidence of
the judgment and other facts which should appear thereon 40 in the absence
of evidence that such record has been lost or destroyed, 4 1 in which case it would
seem that secondary evidence in the form of docket entries, 42 clerk's memoran-
dum 43 and the like may be received.
1063. [Judicial Records] ; Extent to Which Admissible. 44 A judicial rec-
ord when produced from the proper custody may be introduced as proof of
any fact or facts, properly incorporated, which are relevant in the trial of the
particular matter in controversy. Thus for the purpose of ascertaining what
was in issue and determined by a former judgment, 45 or for some other pur-
pose relevant to the issue involved between the parties, 46 all entries and papers
in a record which are relevant to the issue are properly admitted. 47 Although
there may not be an identity of parties, a record may be admitted as a cir-
cumstance from which to infer a given consequence. 48 The dismissal of a
cause does not operate to remove the papers from the record so as to exclude
their use as evidence. 49
Executions and Returns. The returns of an officer upon process which has
been placed in his hands for .service become, when the papers have been filed
in the record, a part thereof and are admissible in evidence. 50 Such returns
36. Gilbert v. McEachen, 38 Miss. 469 45. Ward v. Sire, 52 App. Div. 443, 65 X.
{I860). Y. Supp. 101 (1900).
37. Grimm v. Hamel, 2 Hilt (N. Y.) 434 46. James v. Conklin, 158 111. App. 640
(1859). (1910) ; Bartlett v. Decreet, 4 Gray (Mass.)
38. Keller v. Killion, 9 Iowa 329 (1859). Ill (1855); Rapley v. McKinney's Estate,
Stenographer's notes are to be given no more 143 Mich. 508, 107 N. W. 501 (1906) ; Durr
force than minutes made by the judge. Ed- v. Wildish, 108 Wis. 401, 84 N. W. 437
wards v. Heuer, 46 Mich. 95, 8 N. W. 717 (1900) ; 5 Chamb., Ev., 3381, n. 2.
(1881). 47. Wallace v. Jones, 93 Ga. 419, 21 S. E.
39. 5 Chamberlayne, Evidence, 3380. 89 (1893); Cahill v. Standard Marine Ins.
40. Goggans v. Myrick, 131 Ala 286, 31 Co., 204 X. Y. 190, 97 X. E. 486 (1912);
So. 22 (1901); Baxter v. Pritchard, 113 Iowa Knapp v. Miller, 133 Pa. 275, 19 Atl. 555
422, 85 N. W. 633 (1901) ; 5 Chamb., Ev., (1890) ; 5 Chamb., Ev., 3381, "n. 3.
3380, n. 1. 48. Van Rensselaer v. Akin, 22 Wend. (X.
41. Waterbury Lumber, etc., Co v. Hinck- Y.) 549.
ley, 75 Conn. 187, 52 Atl. 739 (1902) ; Baxter 49. Woods v. Kessler, 93 Ind. 356 (1883) ;
v. Pritchard, supra. Lyster v. Stickney, 12 Fed. 609, 4 McCrary
42. Ellis v. Huff, 29 111. 449 (1*62); Bu- 109 (1882).
chanan v. Moore, 10 Serg. & R. (Pa.) 275 50. State v. Lang, 63 Me. 215 (1874);
(1823). Heyfron v. Mahoney, 9 Mont. 497 24 Pac.
43. Brown v. Campbell, 33 Gratt. (Va.) 402 93, 18 Am. St. Rep. 757 (1890); Shoup v.
(1880). Marks, 128 Fed. 32, 62 C. . A. 540 (1904) ;
44. 5 Chamberlayne, Evidence, 3381 : 5 Chamb., Ev., 3382, n. 1.
3385.
1064 JUDICIAL KECORDS. 796
are those of a public officer of an official act in the performance of his official
duty and which he is by law bound to make. 51 Where the officer to whom a
writ is delivered has been prevented, without negligence or fault on his part,
from obeying the mandate of the writ, a return endorsed upon the writ is a
sufficient return and evidence of that which it recites. 02 The endorsement by
the officer must in all cases be one which he is authorized to make. 5 -' 5 An
original execution has also been admitted in evidence to show that it was in-
correctly copied into the record, 54 or in proof of some other relevant fact. 55
Where the execution has been lost, the execution docket kept by the clerk con-
taining entries in regard thereto is admissible. 50
Incidental Matters. Papers which are incidentally connected with the pro-
ceedings such as bills of exceptions, 57 affidavits, 58 depositions in courts of pro-
bate, 59 a report of a surveyor attached to the record of an action of ejectment, 60
matters of evidence 61 and a paper purporting to be the opinion of a judge but
not signed r in any way authenticated, 62 will not be received in evidence as a
part of the record.
Matters not Properly Part of. The record as a whole imports verity. It
therefore follows that every part of it will be received to prove that which it
legitimately sets forth. 63 It will not, however, be admitted as proof of any
entry or statement which is not properly a part thereof. 64 Thus where the
statute provides what shall form the judgment roll, papers which are not
among those specified cannot be made a part thereof by being joined to it. 65
Pleadings. The pleadings constitute a part of the record and as such are
admissible. 66
1064. [Judicial Records] ; Justices of the Peace. 67 Records kept by jus-
tices of the peace of proceedings before them have, where properly authen-
51. Bechstein v. Sammis, 10 Hun (N. Y.) 60. Patton v. Kennedy, 1 A. K. Marsh.
585 (1877), and are received though made (Ky.) 389, 10 Am. Dec. 744 (1818).
after the commencement of the action in 61. Mestier v. New Orleans, etc., R. Co., 16
which they are offered. La. Ann. 354 ( 1861 ) .
52. Kowe v. Hardy, 97 Va. 674, 34 S. E. 62. Wixson v. Devine, 67 Cal. 341, 7 Pac.
625, 75 Am. St. Eep. 811 (1899). 776 (1885).
53. Kimmel v. Meier, 106 111. App. 251 63. State v. Hawkins, supra; Numbers v.
(1902); Wardwell v. Patrick, 1 Bosw. (N. Shelly, 78 Pa. 426 (1875); 5 Chamb., Ev.,
Y.) 406 (1857) ; 5 Chamb., Ev., 3382, n. 5. 3384, n. 1.
54. Perry v. Whipple, 38 Vt. 278 (1865). 64. Gunn v. Howell, 35 Ala. 144, 73 Am.
55. Nelson v. Brisbin, 5 Neb. (Unoff.) 496, Dec. 484 (1859); Colton Land & W. Co. v.
98 N. W. 1087 (1904). Swartz, 99 Cal. 278, 33 Pac. 878 (1893).
56. Williams v. Lyon, 181 Ala. 531, 61 So. 65. Colton Land & W. Co. v. Swartz, supra.
299 (1913) ; Ellis v.' Huff, 29 111. 449 (1862). 66. Gregory v. Pike, 94 Me. 27, 46 Atl. 793
57. O'Neall v. Calhoun, 67 111. 219 (1873); (1900); Keller v. Morton, 117 N. Y) Supp.
State v. Hawkins, 81 Ind. 486 (1882); 5 200, 63 Misc. 340 (1909); Com. v. Mononga-
Chamb., Ev., 3383, n. 1. hel Bridge Co., 216 Pa. 108, 64 Atl. 909
58. Dempster Mill Mfg. Co. v. Fitzwater, (1906) ; 5 Chamb., Ev., 3385.
6 Kan. App. 24, 49 Pac. 624 (1897). 67. 5 Chamberlayne, Evidence, 3386:
59. Lipscomb v. Postell, 38 Miss. 476, 77 3390.
Am. Dec. 651 (1860).
797 JUSTICES OF PEACE. 1064
ticated and proved, 68 been received in proof of the facts stated therein, 69
especially in those jurisdictions where such a court is one of records. Like-
wise minutes 70 kept by justices of the peace have been admitted, as have also
their files 71 and dockets, 72 though in .Vermont it has been the rule to refuse
to receive the files and minutes if the justice is alive, it being declared that
the only appropriate evidence is the record or a copy thereof."
Administrative Requirements. When in an action before a justice of the
peace his own docket is offered in evidence the rule prevails that it is unnec-
essary to introduce proof of its identity or of the official character of the jus-
tice. 74 As in other cases, however, the record must be identified by evidence
to the satisfaction of the presiding judge when it is offered in another court. 75
This may be done by the oath of the justice establishing the identity and
authenticity of the record, 76 or in the case of two justices by the oath of one of
them to the same effect, 77 or by the testimony of any competent witness. 78
Where the justice is dead it has been regarded as proper to prove the fact of
his death and to produce the original minutes in his handwriting with proof
in verification of them. 79 In some cases proof of the handwriting of the justice
has been required; so in others it has not. 81 The fact that authenticated copies
of the record of a justice of the peace are admissible does not exclude the
original. 82
Duty Imposed ~by Statute. The fact that no statute imposes the duty upon
a justice of the peace to keep a record or docket does not affect its admis-
sibility. 83 Where by express provision of law the duty is imposed upon a jus-
tice of the peace of keeping a record or docket and it is specified what shall be
entered thereon, it or a transcript thereof is then only admissible as evidence
68. Baur v. Beall, 14 Colo. 383, 23 Pac. 74. Groff v. Griswold,. 1 Den. (X. Y.) 432
345 (1890). (1845).
69. People v. Ham, 73 111. App. 533 (1897); 75. Bridges v. Branam, 133 Ind. 488, 33
Knapp v. Miller, 133 Pa. 275, 19 Atl. 555 N. E. 271 (1892); Michaels v. People, 208
(1890); 5 Chamb., Ev., 3386, n. 1. Its 111. 603, 70 N. E. 747 ( 1904) ; 5 Chamb., Ev.,
statements cannot be collaterally questioned. 3387, n. 2.
Church v. Pearne, 75 Conn. 350, 53 Atl. 955 76. Chapman v. Dodd. 10 Minn. 350
(1903). (1865) ; Pollock v. Hoag, supra.
70. Folsom v. Cressey. 73 Me. 270 (1882); 77. Scott v. McCrary, 1 Stew. (Ala.) 315
Pollock v. Hoag, 4 E. D. Smith (X. Y.) 473 (1828).
(1855). 78. Cole v. Curtis, 16 Minn. 182 (1870);
71. Keenan v. Washington Liquor Co., 8 State v. Chambers, 70 Mo. 625 (1879).
Ida. 383, 69 Pac. 112 (1902). 79. Baldwin v. Prouty, 13 Johns. (N. Y.)
72. Downey v. People, 117 111. App. 591 430 (1816).
(1905); State v. Gallamore, 83 Kan. 412, 80. Patterson v. Freeman, 132 X. C. 357, 43
111 Pac. 472 (1910) : McGrath v. Seagrave, 2 S. E. 904 (1903).
Allen (Mass.) 443, 79 Am. Dec. 797 (1861); 81. Xeal v. Keller, 19 Kan. Ill (1877).
5 Chamb., Ev., 3386. n. 6. 82. Folsom v. Cressey, supra; Miller v.
73. Xye v. Kellam, 18 Vt. 594 (1846). See State, 61 Ind. 503 (1878) : State v. Chambers,
Gibson v. Holmes, 78 Vt. 110, 62 Atl. 11, 4 supra; 5 Chamb., Ev., 3388.
L. R. A. (X. S.) 451 (1905). 83. Chapman v. Dodd, supra. See Ruggles
v. Gaily, 2 Rawle (Pa.) 232 (1828).
1065 JUDICIAL RECOEDS. 798
of the facts authorized to be entered therein. 84 The failure, however, of the
justice to enter up his judgments in the precise mode and form prescribed by
statute will not vitiate the effect of the record as evidence. 85
1065. [Judicial Records]; Probate- Courts. 8 * 5 The records of probate
courts concerning matters properly within their jurisdiction may be received
as evidence of those matters so recorded therein as in cases of other courts of
record. 87 Thus probate' records will be received to prove the appointment of
an administrator without accounting for the non-production of the original
letters ; 88 the final settlement of an administrator ; 8d the death of the tes-
tator; 9 " the tiling and allowance of a claim against an estate; 91 the inven-
torying of a debt and the acts of an executor and guardian; 92 an order for
the specific performance by the executor of a contract made by the testator ; 9S
to show minority of wards at a certain date ; 94 issuance of letters of guardian-
ship; 95 the appointment of a person as guardian of a non compos; 9 * the
inventory and appraisement of an estate as tending to prove its value, 97 and
other matters of a like nature. As in other cases, the record will not be re-
ceived in evidence as proof of any matter which does not properly belong
there. 98
84. People v. Hayes, 63 111. App. 427 90. Randolph v. Bayne, 44 Cal. 366 ( 1872).
(1896) ; Armstrong v. State, 21 Ohio St. 357 91. Jordon v. Bevans, 10 Kan. App. 428, 61
(1871) ; 5 Chamb., Ev., 3390, n. 1. Pac. 985 (1900).
85. Reed v. Whitton, 78 Ind. 579 (1881). 92. Eckford v. Hogan, 44 Miss. 398 (1870).
Nor will failure of justice on removing from 93. Williams v. Mitchell, 112 Mo. 300, 20
the town to deposit his docket book with the S. VV. 647 (1892).
town clerk. Carshore v. Huyck, 6 Barb. 94. Richards v. Swan, 7 Gill (Md.) 366
(N. Y.) 583 (1849). (1848).
86. 5 Chamberlayne, Evidence, 3391. 95. Davis v. Hudson, 29 Minn. 27, 11 X. W.
87. Cox v. Cody, 75 Ga. 175 (1885); Ferd 136 (1881).
v. Ford, 117 111. App. 502 (1905) ; Lalor v. 96. Thomas v. Hatch, 3 Sumn. (U. S.) 170
Tooker, 130 App. Div. 11, 114 N. Y. Supp (1838).
403 i 1909) : Com. v. Levi, 44 Pa. Super. Ct. 97. Smalley v. Paine (Tex. Civ. App. 1910),
253 (1910) ; 5 Chamb., Ev., 3391, n. 1. 130 S. W 739; Bailey v. Robison, 233 111. 614,
88. McRory v. Sellars, 46 Ga. 550 (1872) ; 84 N. E 660 (1908).
Davis v. Turner, 21 Kan. 131 (1878); 5 98. Wilson v. Johnson, 152 Ala. 614, 44 So.
Chamb., Ev., 3391, n. 2. 539 (1907).
89. Lalonette's Heirs v. Lipscomb, 52 Ala.
570 (1875).
CHAPTER LI.
COPIES AND TRANSCRIPTS; JUDICIAL RECORDS.
Copies and transcripts; judicial records, 1066.
exemplifications, 1067.
examined or sworn copies. 1068.
office or certified copies, 1069.
justice's courts, 1070.
probate courts, 1071.
federal courts, 1072.
of other states, 1073.
attestation of the cleric, 1074.
certificate of the judge, 1075.
justices of the peace, 1076.
probate cowts, 1077.
state courts in federal courts, 1078.
foreign courts, 1079.
1066. Copies and Transcripts ; Judicial Records. 1 It is a general rule that
where the judgment, decree or proceeding of a court of record is to be proved
it must be done by producing the original, 2 which may be regarded as primary
proof, 3 or by a copy duly autenticated, the latter being the usual mode. 4
Proof by copy may be of three kinds, (1) exemplification. (2) copies made by
an authorized officer, commonly called office copies and (3) sworn or exam-
ined copies. 5 In order to render a copy of a record admissible the essential
requirements are that it should appear to the satisfaction of the presiding
judge that the record from which it was made came out of the proper custody, 6
and that the copy should only contain matters which should properly be en-
tered upon the record. 7 and which it is the duty of the official to record.
1067. Exemplifications. s An exemplified copy, which is one of the modes
1. 5 Chamberlayne, Evidence, 3392. Dooley v Wolcott, 4 Allen (Mass.) 406
2. Jackson v. Robinson, 4 Wend. (X. Y.) (1862): Benedict v. Heineberg, 43 Vt. 231
436 (1830). (1870) ; 5 Chamb., Ev., 3392. n. 3.
3. Harper v. Rowe, 53 Cal. 233 (1878); . Stewart v Swanzy, 23 Miss. 502 (1852);
Day v. Moore, 13 Gray (Mass.) 522 (1859). Stamper v. Gay, 3 Wyo. 322, 23 Pac. 69
4. Ramsey v. Flowers, 72 Ark 316. 80 S. (1890).
W. 147 (1904); Abington v. North Bridge- 6. Garrigues v. Harris, 17 Pa. 344 (1851).
water, 23 Pick. (Mass.) 170 (1839) : Packard 7. Globe Mut. L. Ins, Ass'n v. Meyer, 118
v. Hill, 7 Cow. (X. Y.) 434 (1827). The 111. App 155 (1905); 5 Chamb.. Ev., 3393.
rule applies to copies of executions. Cannon 8. 5 Chamberlayne, Evidence, 3394.
v Gorham, 136 Ga. 167, 71 S. E. 142 (1911) ;
799
1068,1069 COPIES AND TRANSCRIPTS ;' JUDICIAL RECORD. 800
of proving a judicial record, 9 was obtained " at common law by removing the
record into the court of chancery by certiorari. The great seal was attached
to a copy, which was transmitted by a mittimus to the court in which it was to
be used as evidence." ly In this country it is not necessary to remove tiie
record from an inferior to a superior court by certiorari even on plea of nul
tiel record but an exemplification is sufficient. 11
1068. Examined or Sworn Copies. 12 An examined or sworn copy which is
proved by producing a witness, possibly an unofficial one, 13 who has compared
the copy with the original record, word for word, or who has examined the
copy while another person read the original 14 is one of the ordinary methods,
independent of any statute, of proving a public document or record. 15 A
sworn copy of a copy has been rejected, 10 though where the original was in a
dilapidated condition and copies thereof had been used for many years in
place of the original for public reference a copy was admitted. 17 It must ap-
pear that the copy offered has been properly examined and compared with the
original. 18
1069. Office or Certified Copies. 19 Certified copies made by the officer in
custody of judicial records and known as office copies is another mode of proof
in many jurisdiction being made so by express provisions of a statute,
though according to the earlier authorities the admission of an office copy
seems to have been restricted to those cases where the trial was in the same
court and in the same cause 21 and possibly where the trial was in another court
but in the same cause in which the answer was put in. 22 A statute authoriz-
ing the admission of certified copies of judicial records is not exclusionary of
proof by the original unless it so provides. 23 The general rule prevails that
9. Weaver v. Tuten, 138 Ga. 101, 74 S. E. v. McCadden, 15 Ohio 551 (1846) -. 5 Chamb.,
835 (1912); Gardere v. Columbian Ins. Co., Ev., 3395, n. 3.
7 Johns. (X. Y.) 514 (1811); Spaulding v. 16. Grimes v Bastrop. 26 Tex. 310 (1862).
Vincent, 24 Vt. 501 (1852); 5 Chamb., Ev., 17. New York, etc., R. Co. v. Horgan, 26
3394, n 1. R. I. 448, 59 Atl. 310 (1904).
10. West Jersey Traction Co v. Board of 18. Foster v. People, 121 111. App. 165
Public Works, 57 N. J. L 313, 30 Atl. 581 (1905) ; Kellogg v. Kellogg, supra; 5 Chamb.,
(1894) Ev., 3396, nn. 1, 2, 3 .
11. Id.; Vail v. Smith, 4 Cow. (N. Y.) 71 19. 5 Chamberlayne, Evidence, 3397-
(1825). 3403.
12. 5 Chamberlayne, Evidence, 3395. 20. Craig v. Encey, 78 Ind. 141 (1881);
3396. Com v. Quigley, 17n Mas*. 14, 48 X E. 782
13. State v. Lynde. 77 Me. 561, 1 Atl. (1S97); Bailey v. Fransioli. 101 App. Div
887 (1885); State v. Collins, 68 NT. H. 299, 140. 91 X Y. Supp. 8.V2 (1905): 5 Chamb,
44 Atl 495 (1895). Ev., 3397, n. 1.
14. West Jersey Traction Co. v. Board of 21. West Jersey Traction Co v Board of
Public Works, supra Public Works, supra.
15. People v. Lyons, 168 111 App. 396 22. Kellogg v. Kellogg, supra.
(1912); State v. Collins, supra; Kellogg v 23. McAllister v. People. 28 Colo. 156. 63
Kellogg, 6 Barb. (N. Y.) 116 (1849); Lyon Pac 308 (1900); Vose v. Manlv, 19 Me. 331
(1841) ; 5 Chamb., Ev., 3398.
801 OFFICE OR CERTIFIED COPIES. 1069
the official who has the legal custody of the records of a court, ordinarily the
clerk of the court, he being the person usually entrusted with the duty of keep-
ing the records, 24 is the one who is authorized to give certified copies of them,
and a certificate by the judge is not sufficient. 25 Unless authority to the
contrary exists by virtue of some statute 20 it will be required that the clerk
shall not in his certificate state that a certain fact appears of record or that in
his opinion a certain legal import or effect results from what is there entered.
His duty in such case is to furnish a copy of what the record itself contains. 27
The presiding judge will therefore exclude a certificate to the effect that a
judgment has been rendered, 28 affirmed, 29 reversed, 30 that an abstract thereof
has been indexed, 31 or that an execution thereon has been issued and re-
turned, 32 the only proper and competent evidence of such facts being a tran-
script or copy of the record. Similarly a certificate to the effect' that a case has
been dismissed, 33 or that the foregoing contains all that is material to the con-
troversy, 34 will be rejected. Certificates to the effect that letters of guardian-
ship have been granted, 35 a claim allowed, 36 a will proved, 37 letters of admin-
istration granted, 38 that a person is public administrator 39 and of the death of
a person, that his estate has been administered upon and who were his heirs 40
have been excluded. The clerk cannot certify to matters which are not prop-
erly and legally entered on the records. 41
Authentication. It is essential to the admissibility of a copy that it
should be properly authenticated. 42 Statutory requirements should be at least
substantially complied with. 43 If it is required that a copy shall be authen-
ticated by the seal of the court, an absence of such seal, 44 if the court has one, 45
24. Lay v. Sheppard, 112 Ga. Ill, 37 S. E. 35. Peebles v. Tomlinson, 33 Ala. 336
132 (1900); Fitzpatrick v. Simonson Bros. (1858).
Mfg. Co., 86 Minn. 140, 90 X. W. 378 (1902) ; 36. Armstrong v. Boylan, 4 X. J. L., 76
Woolsey v. Saunders, 3 Barb. (X. Y.) 301 (1818).
(1848) ; 5 Chamb., Ev., 3399, n. 1. 37. Staring v. Bowen, 6 Barb. (X. Y.) 109
25. Dibble v. Morris, 26 Conn. 416 (1857). (1849).
But see Cockran v. State, 46 Ala. 714 (1871). 38. Morse v. Bellows, 7 X. H. 549, 28 Am.
26. First Xat. Bank v. Lippman, 129 Ala. Dec. 372 (1835).
608, 30 So. 19 (1900); Lansing v Russell, 39. Littleton v. Christy's Adm'r, 11 Mo.
3 Barb. Ch. (X. Y.) 325 (1848). 390 (1848).
27. Lamar v. Pearre, 90 Ga. 377 (1892); 40. Billingsley v. Hiles, 6 S. D. 445, 61
English v. Sprague, 33 Me. 440 (1851) ; 5 X. W. 687 (1895); 5 Chamb., Ev., 3400, n.
Chamb., Ev., 3400, n. 2. 15.
28. Lansing v. Russell, supra ; Thompson v. 41. Boardman v. Page, 11 X. H. 431
Mann. 53 W. Va. 432, 44 S. E. 246 (1903). (1840) ; League v. Henecke (Tex. Civ. App.
29. Miller v. Vaughan, 78 Ala. 323 (1884). 1894), 26 S. W. 729; 5 Chamb., Ev., 3401.
30. Dotbard v. Sherd, 69 Ala 135 (1881). 42. McGlasson v. Scott, 112 Iowa 289, 83
31. Lindsey v. State, 27 Tex. Civ. App. 540, X. W. 974 (1900) : 5 Chamb., Ev., 3402.
6ti S. W. 332 (1901). 43. Hagan v. Snider, 44 Tex. Civ. App. 139,
32. Carr v Youse, 39 Mo. 346, 90 Am Dec. 98 S. W. 213 (1906).
470 (1866). 44. Brunt v. State, 36 Ind. 330 (1871);
33. Lamar v. Pearre, supra. Burge v. Gaudy, 41 Xeb. 149. 59 X. W. 35&
34. Bellamy v. Hawkins, 17 Fla. 750 (1894) : 5 Chamb., Ev., 3402, n. 3.
(1880). 45. Burge v. Gandy, supra.
1070 COPIES AND TRANSCRIPTS; JUDICIAL EECORD. 802
will be a sufficient reason for its exclusion. Ordinarily, however, in the ab-
sence of a statute, a transcript of a judicial record requires no seal as an
essential to admissibility. 46 A certificate under private seal of the clerk has.
in some cases been received, there being no official seal of the court. 47 Where
there is no provision of law as to what the certificate shall state, it is gener-
ally regarded as sufficient if it contains a statement indicating that the copy
is a true copy. 48 In fact it must be shown to be such. 49 Where the statute
prescribes what the certificate shall state, it will be received if it substantially
satifies the requirement of the statute in regard thereto. 50 Mere clerical
errors, will not be sufficient for the exclusion of a copy. 51 Where the com-
plete record is composed of several papers a copy thereof has been received
where each paper is certified 52 as well as where the certification is general and
includes them all. 53 If, however, the papers certified do not constitute a
complete copy they may be rejected. 54 The copy or certificate should identify
the papers with certainty 55 so as to inform the court what is certified
to. 50
1070. Justices' Courts. 57 Though the justice's docket or record is the
best evidence 58 a sworn or certified copy thereof has been received 59 with the
same effect as the original, 60 on the ground of convenience, 61 though in some
instances its reception has been limited to those cases where the justice is dead
or absent. 62 Proof by this means is also frequently provided for by statute. 6 '*
Such a certificate has been received in favor of the justice. 64 Such a statute
46. Weis v. Levy, 69 Ala. 209 (1881); Con- W. 414 (1881); Weaver v. Tuten, 138 Ga.
ley v. State, 85 Ga. 348, 11 S. E. 659 (1890) ; 101, 74 S. E. 835 (1912).
Com. v. Quigley, 170 Mass. 14, 48 N. E. 54. Susquehanna, etc., R. & C. Co. v. Quick,
782 (1897); 5 Chamb., Ev., 3402, n. 5. 68 Pa. 189 (1871).
47. Torbett v. Wilson, 1 Stew. & P. (Ala.) 55. Pike v. Crehore, 40 Me. 503 (1855).
200 (1831) ; Gates v. State, 13 Mo. 11 (1850). 56. Clements v. Taylor, 65 Ala. 363 (1880).
48. Glos v. Stern, 213 111. 325, 72 N. E. 57. 5 Chamberlayne, Evidence, 3404-
1057 (1904); Com. v. W 7 ait, 131 Mass. 417 3406.
(1881) ; 5 Chamb., Ev., 3403, n. 1. 58. Hibbs v. Blair, 14 Pa. 413 (1850).
49. Drumm v. Cessnum, 58 Kan. 331, 49 59. Com. v. Downing, 4 Gray (Muss.) 29
Pac. 78 (1897). (1855); French v. Schreeve, 18 N. J. L. 147
50. Cofer v. Schening, 98 Ala. 338, 13 So. (1840) ; 5 Chamb., Ev., 3404, n. 2.
123 (1892) ; Old Wayne Mut. Life Assoc. v. 60. Welsh v. Crawford, 14 Serg. & R. (Pa.)
McDonough, 164 Ind. 321, 73 N. E. 703 440 (1826).
(1904) ; 5 Chamb., Ev., 3403, n. 4. 61. Hibbs v. Blair, supra.
51. Daniel v. State, 114 Ga. 533, 40 S. E. 62. Pratt v. Peckham, 25 Barb. (N. Y.) 195
805(1901). (1855) (under the statute) .
Signature of judge to the record. Absence 63. Foster v. People, 121 111. App. 165
of on copy does not vitiate. Anderson v. Ack- (1905); Goodsell v. Leonard, 23 Mich. 374
erman, 83 Ind. 481 (1883); Stacks v. Craw- (1871); Belgard v. McLaughlin, 44 Hun (N.
ford, 63 Neb. 662, 88 N. W. 852 (1902). See Y.) 557 (1887) ; 5 Cbamb., Ev., 3404, n. 6
Elliott v. Cronk's Adm'rs., 13 Wend. (N. 64. Maynard v. Thompson, 8 Wend. (N. Y.)
Y.) 35 (1834). 393 (1832).
52. Goldstone v. Davidson, 18 Cal. 41 65. Singer v. Atlantic Mills Co., 126 Ga.
(1861). 45, 54 S. E. 821 (1906).
53. Sherburne v. Rodman, 51 Wis. 474, 8 N.
803 PROBATE COURTS. 1071
will not operate to exclude the original record. 65 In the absence of any statute
one who certifies to copies of a justice's record must have been the legal cus-
todian of it, which fact the certificate should show. 156 This is also true under
the statute in several states. 67 In some states there are also provisions by
statute requiring that a transcript of such a record must be made by the justice
of the peace or his successor in office or by one having the legal custody of the
docket or record. 68 In some jurisdictions a further authentication by some
official is required by statute to the certificate given by a justice of the peace. 69
A certification by a justice should of course be to a copy of the record and not
to the effect that a certain fact appears thereon. 70 The general principles
respecting the form of certification of judicial records to the effect that the
certificate should show or state that the copy is a true and complete one have
also been applied to copies of justices' records. 71 In some jurisdictions a seal
is required to the certificate of a justice of the peace. 72
1071. Probate Courts. 73 The records of probate or surrogates' courts, aa
in the case of those of other courts, may ordinarily be proved by exemplified 74
or certified copies. 75 Thus an exemplification 76 or certified copy of a will or
of the record ' ' has been received without accounting for the non-production
of the original record, 78 while a sworn copy has been rejected. 79 Proceedings
in a probate court may also be established by production of the original record
notwithstanding proof by copy is permitted by statute, provided such statute ia
not exclusionary thereof. 80 The same principle applies in the case of probate
records as in that of other records, viz. : that matters which do not properly be-
long there as a part thereof cannot become matter of record by their incor-
poration therein, and that a certificate of such matters does not by the certi-
66. Stamper v. Gay, 3 Wyo. 322, 23 Pac. 73. 5 Chamberlayne, Evidence, 3407,
69 (1890). 3408.
67. Anderson v. Miller, 4 Blackf. (Ind.) 74. Smith v. Ross, 108 Ga. 198, 33 S. E.
417 (1837); Holeomb v. Tift, 54 Mich. 647. 953 (1899).
20 X. W. 627 (1884); 5 Chamb., Ev., 3405, 75. Lasco v. Casanenava, 30 Cal. 560
n. 2. . (1866) : Hart v. Stone, 30 Conn. 94 (1861) ;
68. Drumm v. Cessnum, supra; Wentworth Fitzpatriek v. Simonson Bros. Mfg. Co., 86
v. Keazer, 30 Me. 336 (1840); McDermott v. Minn. 140 (1902); Jackson v. Robinson, 4
Barnum, 12 Mo. 204 (1853); Maynard v. Wend. (X. Y.) 436 (1830); 5 Chamb., Ev.,
Thompson, 8 Wend. (X. Y.) 393 (1832); 5 3407, n. 2.
Chamb.. Ev., 3405. n. 4. 76. Rodney v. McLaughlin, 97 Mo. 426, 9 S.
69. Relton v. Fisher. 44 111. 32 (1867); W. 726 (1888); Kenyon v. Stewart, 44 Pa.
Todd v. Johnson, 50 Minn. 310, 52 X. W. 864 179 (1863).
(1802): Maynard v. Thompson, supra; 5 77. Chicago Terminal Transf. R. Co. v. Win-
Chamb., Ev., 3405, n. 6. slow, 216 111. 166, 74 X. E. 815 (1905);
70. English v. Sprage, 33 Me. 440 (1851). Fetes v. Volmer, 58 Hun 1, 11 X. Y. Supp.
71. Yeager v. Wright, 112 Ind. 230, 13 X. 552 (1890); Musgrave v. Angle. 43 Can. S.
E. 707 (1887) : Starbird v. Moore. 21 Vt. Ct. 484 (1910) : 5 Chamb., Ev., 3407, n. 4.
529 (1848) ; 5 Chamb., Ev.. 3406. n. 3. 78. Hickman v. Gillum, 66 Tex. 314, 1 S. W.
72. Greenberg v. People. 125 111. App. 626 330 (1886).
(1906): Wolverton v. Com., 7 Serg. & R. 79. Ray v. Mariner. 3 X. C 385 (1806).
(Pa.) 273 (1821). 80. Houze v. Houze, 16 Tex. 598 (1856).
1072 COPIES AND TRANSCRIPTS; JUDICIAL RECORD. 804
fication become admissible. 81 The certificate to the copy of a will should of
course be executed in compliance with the law relating thereto in order to be
admissible. 82 It must also be shown to the satisfaction of the presiding judge
that a will which is certified to has been duly proved and recorded according
to law in order to render the copy admissible. 83
1072. Federal Courts. 84 The general rule seems to be that whenever a
copy of a document from any department of the United States government
would be received in evidence in the Federal courts it will also be admitted
in the State tribunals. 85 The rule also is that the circuit or district court of
each district is presumed to know the seals of every other circuit or district
court of the United States. 86 Copies of records of the Federal courts whether
of a circuit or district court are not, therefore, when offered in another circuit
or district than that in which they are made, 87 or offered for evidence in a
State 88 or territorial court, 89 subject to the provisions of the Federal statute
relating to the authentication of the judicial records of one State when offered
in the courts of another State ; the copy being generally regarded as admis-
sible when certified to by the clerk of the court under the seal of that court. 90
In some cases they have been received under State statutes 91 or excluded be-
cause of noncompliance therewith. 92 On the other hand, however, the fact
that the act of congress respecting copies of records of a State court when of-
fered in a court of another State does not apply to copies of records of Federal
courts when introduced in a State court does not operate to exclude copies in
the latter case because authenticated in accordance with that act, 93 which in
fact is said to be the uniform practice in authenticating the records of Federal
courts. 94 Where by statute the deputy clerk is authorized, in the absence of
the clerk, to do and perform all duties pertaining to the office, a certificate by
a deputy clerk has been received though it does not affirmatively appear that
the clerk was absent, it being said that his absence will be presumed. 95 The
81. Bowersock v. Adams, 55 Kan. 681, 41 88. Allison v. Robinson, 136 Ala. 434, 34
Pac. 971 (1895). So. 966 (1902); Gregory v. Pike, 94 Me. 27,
82. Phillips v. Babcock Bros. Lumber Co., 46 Atl. 793 (1900); Pepoon v. Jenkins, 2
5 Ga, App. 634, 63 S. E. (1908). Johns. Cas. (N. Y.) 119 (1800); Turnbull
83. Sutton v. Westcott, 48 N. C. 283 v. Payson, supra; 5 Chamb., Ev., 3409, n. 4.
(1856); Lagow v. Glover, 77 Tex. 448, 14 S. 89. Edwards v. Smith, supra.
W. 141 (1890) ; 5 Chamb., Ev., 3408, n. 2. 90. Ganow v. Ashton, 32 S. D. 453, 143 X.
84. 5 Chamberlayne, Evidence, 3409. , W. 383 (1913).
85. Gilman v. Riopelle, 18 Mich. 145 91. Dean v. Chapin, 22 Mich. 275 (1871);
(1869); Williams v. Wilkes, .14 Pa. 228 Rosenfeld v. Siegfried, 91 Mo. App. 169
(1850); Edwards v. Smith (Tex. Civ. App. (1901); Hamon v. Foust (Tenn. 1912), 150
]911), 137 S. W. 1161; 5 Chamb., Ev., S. W. 418; 5 Chamb., Ev., 3409, n. 6.
3409, n. 1. 92. Pike v. Crehore, 40 Me. 503 (1855).
86. Turnbull v. Payson, 95 U. S. 418, 24 93. Ruford v. TTiekman, 4 Fed. Cas. No.
L ed. 437 (1877). 2,114a, Hempst. (U. S.) 232 (1834).
87. National Ace. Soc. v. Spiro, 94 Fed. 94. O'llara v. Mobile & 0. R. Co., 76 Fed.
750, 37 C. C. A. 388 (1899); 5 Chamb., Ev., 718, 22 C. C. A. 512 (1896).
3409, n. 3. 95. National Ace. Soc. v. Spiro, supra.
805 OF OTHEE STATES. 1073
certificate of the clerk should, as in other cases, be to a copy of the record and
not to its legal effect. 96
1073. Of Other States. 97 Congress, in the exercise of the power conferred
upon it by the Constitution, 98 has provided a mode for the proof of the judicial
records of one State in the courts of another in the following terms: '' The
records and judicial proceedings of the courts of any State, shall be proved or
admitted in any other court within the United States, by the attestation of the
clerk, and the seal of the court annexed, if there be a seal, together with a cer-
tificate of the judge, chief justice, or presiding magistrate, as the case may be,
that the said attestation is in due form and such record and judicial proceedings
so authenticated, shall have such faith and credit given to them, in every
court within the United States, as they have by law or usage in the courts of
the State from whence the said records are, or shall be taken." " A substan-
tial compliance with this requirement has been considered sufficient i and a
copy which has been so authenticated will be, in fact must be, 2 admitted,
though it may not confrom to the law of the State in which the judgment was
rendered or the mode at common law. The method provided by the act of
Congress for proving such records is cumulative 3 being regarded as more con-
venient and less expensive, 4 and not exclusive 5 of other modes of proof.
Therefore, proof in accordance with the common law mode, 6 as by a sworn copy, 7
a copy certified to by the officer whose duty it is by law to keep the original, 8
or a copy, though not authenticated according to the act of Congress, if it is
proved as a foreign record, 9 has been received. The right of the states to pass
legislation affecting this subject is also recognized. In many cases the provi-
sions of the Federal act have been substantially adopted by the States. 10 With
this recognition of the power of the State, however, is imposed the qualification
that Congress having exercised the authority vested in it by the Constitution,
96. Barber v. International Co. of Mexico, 225, 41 X. E. 753 (1895); State v. Hinch-
73 Conn. 587, 48 Atl. 758 (1901). man, 27 Pa. 479 (1856); 5 Chamb., Ev.,
97. 5 Chamberlayne, Evidence, 3410, 3411, n. 3.
3411. 6. Karr v. Jackson, 28 Mo. 316 (1859);
98. U. S. Const. Art. iv, 1. Wolf v. King, 49 Tex. Civ. App. 41, 107 S.
99. Act of Cong. May 26, 1790; U. S. Rev. W. 617 (1908) ; 5 Chamb., Ev., 3411, n. 4.
Stat. 005; I'. S. Comp. Stat. 1901, p. 677. 7. Smith v. Strong, 14 Pick. (Mass.) 128
1. Homer v. Spelman, 78 111. 206 (1875) ; (1833) ; Otto v. Trump, 115 Pa. 425, 8 Atl.
Taylor v. Heitz, 87 Mo. 660 (1885). 786 (1886); Tourtellot v. Booker (Tex. Civ.
2. Xadel v. Campbell, 18 Ida. 335, 110 Pac. App. 1913), 160 S. W. 293; 5 Chamb., Ev.,
262 (1910); Joslin v. Fuller, 100 111. App. 3411, n. 5.
43 (1911); Murphy v. Marscheider, 4 X. Y. 8. Holyoke v. Holyoke's Estate, 110 Me.
Supp. 799 (1889); Yarn v. Arnold Hat Co. 469, 87 Atl. 40 (19131.
(Tex. Civ. App. 1910), 124 S. W. 693; 5 9. Lothrop v. Blake, 3 Pa. 483 (1846).
Chamb., Ev., 1910, n. 4. 10. Bean v. Loryea, 81 Cal. 151. 22 Pac.
3. Goodwyn v. Goodwyn, 25 Ga. 203 513 (1889); Phelps v. Tilton, 17 Ind. 423
(1858). (1861); Comstock v. Kerwin, 57 Xeb. 1, 77
4. Hall v. Bishop, 78 Ind. 370 (1881). X. W. 387 (1898) ; 5 Chamb., Ev., 3411, n.
5. Garden City Sand Co. v. Miller, 157 111. 8.
1074 COPIES AND TRANSCRIPTS; JUDICIAL RECORD. 806
no State may require a greater amount of proof than that prescribed by such
act. Subject to this limitation, State enactments respecting the mode of prov-
ing such documents are equally valid n and may be followed. It is required,
however, that there should be a compliance with its provisions in order to
render a copy admissible under the act of Congress. 12 Likewise, in order to
prove such a record under a State enactment, compliance with its provisions
is required. 13
1074. Attestation of the Clerk. 14 The act of Congress provides that the
attestation shall be made by the clerk and this designation excludes an attes-
tation by any other official as for instance a deputy clerk, 15 in case it is sought
to prove the record under that act, and a certificate by the judge that attestation
is made by the proper officer will not cure such a defect. 10 The act of Con-
gress prescribes no requirement as to the form of attestation. 17 The general
rule seems to be that, in this respect, it should comply with the forms used in
the State in which the record is and from which the copy comes. 18 The certi-
ficate of the clerk need not state that he has the custody of the records as, the
authentication being sufficient, the presumption arises that he is the legal cus-
todian ; 19 nor need it state that the court is a court of record, as it will be
presumed from the presence of a seal that it is such a court. 20 Likewise a
copy of the record of a court of another State when duly authenticated is evi-
dence not only of the acts of the court but of its jurisdiction 21 and it is not
essential to show by the copy or otherwise that the court had jurisdiction. 22
ISTor does the law require that the clerk should certify that the transcript is a
full transcript of the whole proceedings. 23 His certificate that the transcript
is truly copied from the record of the proceedings of the court is, where the
11. People v. Miller, 195 111. 621, 63 N. E. 16. Id. Contra: Young v. Thayer, 1
504 (1902; In re Ellis' estate, 55 Minn. 401, Greene (Iowa) 196 (1848); Steinke v.
56 N. W. 1056 (1898) ; Willock v. Wilson, 178 Graves, 16 Utah 293, 52 Pac. 386 (1898).
Mass. 68, 59 N. E. 757 (1901) ; Wells, Fargo 17. Morris v. Patchin, supra.
& Co. v. Davis, 105 N. Y. 670, 12 N. E. 42 18. Forbes v. Davis, 187 Ala. 71, 65 So. 516
(1887); 5 Chamb., Ev., 3411, n. 9. (1914); Morris v. Patchin, supra; Edwards
12. Mason v. Nashville, etc., Ry. Co., 135 v. Jones, 113 N. C. 453, 18 S. E. 500 (1893) ;
Ga. 741, 70 S. E. 225 (1910) ; Ayres v. Deer- 5 Chamb., Ev., 3413, n. 2.
ing, 76 Kan. 149, 90 Pac. 794 (1907); Huie 19. Ritchie v. Carpenter, 2 Wash. 512, 28
v. Devore, 138 App. Div. 677, 123 X. Y. Supp. Pac. 380, 26 Am. St. Rep. 877 (1891).
12 (1910); 5 Chamb., Ev., 3411, n. 11. 20. Steamboat Thames v. Erskine, 7 Mo.
13. Ayres v. Deering, supra; Barlow v. 213 (1841).
Steel, 65 Mo. 611 (1877) ; Comstock v. Ker- 21. Western Assur. Co. v. Walden, 238 Mo.
win, supra ; Huie v. Devore, supra; 5 Chamb., 49, 141 S. W. 595 (1911) ; Ransom v. Wheeler,
Ev., 3411, n. 12. 12 Abb. Pr. (X. Y.) 139 (1861); 5 Chamb.,
14. 5 Chamberlayne, Evidence, 3412- Ev., 3413, n. 5.
3416. 22. Brown v. Mitchell, 88 Tex. 350, 31 S.
15. Willock v. Wilson, supra; Williams v. W. 621, 36 L. R. A. 64 (1895).
Williams, 53 Mo. App. 617 (1893): Morris 23. State v. Allen, 113 La. 705, 37 So. 614
v. Patchin, 24 X. Y. 394, 82 Am. Dec. 311, (1904).
397 (1862) ; 5 Cbamb., Ev., 3412, n. 1.
807 CEBTIFICATE or JUDGE. 1075
transcript appears to be complete, all that is required. 24 A certification that
the copy is a true copy imports that it is a complete copy. 25 A transcript, the
authentication of which conforms to the provisions of the Federal act, will not
be excluded because of the insertion of any unnecessary matter in connection
with the attestation or certification. 26 Since the act of Congress requires a.
seal to the cler*k's attestation it is of course an absolute essential that if the
court has one it should be so annexed in order to render the copy admissible
under that act, 27 or that it should appear by the certificate either of the clerk
or the judge that the court has no seal, 28 in which case a copy attested by the
private seal of the clerk may properly be received. 29 If a court is abolished
and its records are transferred to another court, the certificate of the clerk of
the latter court to the effect that he has been made the depository of the records
of the other court with authority to certify transcripts of its proceedings,
coupled with the judge's certificate to the effect that the certificate of the
former is in due form and by the proper officer is regarded as sufficient under
the Federal act, 30 without proving the laws of the State to that effect. 31
1075. Certificate of the Judge. 32 In the absence of the certificate of the
judge, chief justice or presiding magistrate that the attestation is in due form
there is a want of proper authentication which would require the exclusion of
a copy of a judicial record of a sister State. 33 The absence of such a certi-
ficate creates a fatal defect which cannot be aided by the copy of the record 34
or by an additional certificate of the clerk. 35 In cases where the judge is also
clerk of his own clerk, which frequently occurs in probate courts, the act of
Congress is likewise applicable 36 and the judge may certify to a copy in both
capacities, that is as clerk and judge, 37 in which case the transcript is prop-
erly received. The certificate should be so worded as to clearly indicate or
24. Shilling v. Seigle, 207 Pa. 381, 56 Atl. 32. 5 Chamberlayne, Evidence, 3417-
957 (1904). 3419.
25. Wells v. Wells. 209 Mass. 282, 95 N. E. 33. Mason v. Chattanooga, etc., R. Co., 135
245, 35 L. R. A. (X. S.) 561 (1911) ; Shill- Ga. 741, 70 S. E. 225 (1910) ; Huie v. Devore,
ing v. Seigle, supra; Joslin v. Fuller, 106 111. supra; Dodd v. Groll, 19 Ohio Cir. Ct. 718
App. 43 (1911) -. 5 Chamb., Ev.. 3413, n. 9. (1898) : Snyder v. Wise, 10 Pa. 157 (1848) ;
26. Erb v. Scott, 14 Pa. 20 (1850) : Graham 5 Chamb., Ev., 3417, n. 1.
v. Froth, 69 Kan. 861, 77 Pac. 92 (1904); 5 34. Elliott v. McClelland, 17 Ala. 206
Chamb.. Ev., 3415, n. 1. (1850).
27. Mason v. Xashville, etc.. Ry. Co., supra; 35. Taylor v. McKee, 118 Ga. 874, 45 S. E.
Kirschner v. State, 9 Wis. 140 (1859); 5 672 (1903).
Chamb., Ev.. 3415, n. 1. 36. Low v. Burrows, 12 Cal. 181 (1859) ;
28. Stewart v. Swanzy, 23 Miss. 502 (1852). Cox v. Jones, 52 Gal 438 (1874) ; 5 Chamb.,
29. Strode v. Churchill, 2 Litt. (Ky.) 75 Ev.. 3417. n. 4.
(1822). 37. Rowe v. Barnes. 101 Iowa 302. 70 X.
30. Gatling v. Robbins, Stlnd. 184 (1856); W. 197 (1897); State v. Hinchman, 27 Pa.
Caper, v. Emery. 5 Mete. (Mass.) 436 (1843): 479 (1S56) : Keith Bros. & Co. v. Stiles, 92
Manning v. Hogan, 26 Mo. 570 (1858) ; 5 Wis. 15, 64 X. W. 860, 65 N. W. 860 (1896) ;
Chamb.. Ev.. 3416. nn. 1, 2. 5 Chamb., Ev., 3417, n. 5.
31. Id.; Darrah v. Watson, 36 Iowa 116
(1872).
1076 COPIES AND TEANSCEIPTS; JUDICIAL KECOKD. 808
show that the judge possesses the necessary official character which authorizes
him to sign it. 38 It must also appear that he was presiding judge of the par-
ticular court from the record of which transcript comes, 39 which character he
must possess at the time of giving the certificate, 40 otherwise it will be re-
jected. 41 A certificate by some other judge, although of equal authority and
rank within the State, will not satisfy the requirement of the act. 42 The cer-
tificate of the judge that the attestation is in due form is authentic evidence of
its correctness, 43 in fact, according to some decisions, is to be regarded as
conclusive. 44 The judge need not go beyond the terms of the act and certify
to any matter except that which the enactment specifies. 45 Where it appears
from the face of the record as shown by the transcript offered or from the
certificate to the transcript that the court is composed of more than one judge, a
certificate signed by one judge without showing that he is the presiding judge
or chief justice will be rejected. 46 Where, however, there is nothing on the
face of the record adduced from which it may be inferred that the court from
which the transcript comes is composed of more than one judge, it is held to
be sufficient if the judge in his certificate describes himself as judge of the
court, without stating that he is sole judge, 47 since the presumption is said to
arise that he is the sole judge. 48 If the laws of the State creating the court
do not make any precedence between judges of such court by providing for
any chief justice or presiding justice but all are of equal rank, an authentica-
tion by one 49 of such judges or all 50 is proper. Where such a situation exists
it may be shown by the certificate of the judge or by proving the statute of the
State. 51 Where a court is composed of several judges, each judge presiding
in turn, a certificate signed by one as the judge who is presiding " in turn "
will be received. 52
1076. Justices' of the Peace. 53 The general rule seems to be that such
courts having no clerks are not so constituted as to come within the provisions
38. Oron v. Felder, 15 Ala. 304 (1849); 46. Rich v. Cohen, 114 X. Y. Supp 672,
Williams v Williams, 53 Mo. App. 617 61 Misc. 148 (1908); Van Storch v. Griffin,
(1893) ; 5 Chamb., Ev., 3418, n. 1. 71 Pa. 240 (1872) ; 5 Chamb., Ev., 3419, n.
39. Hope v. First Nat. Bank (Oa. 1914). 1.
86 S. E. 929; Barlow v. Steel, 65 Mo. 611 47. Willock v. Wilson, 178 Mass. 68
(1877); Huie v. Devore, supra; 5 Chamb., (1901); Keyes v. Mooney. 13 Or. 179, 9 Pac.
Ev., 3418, n. 2. 400 (1886) ; 5 Chamb., Ev., 3419, n. 2.
40. Lothrop v. Blake, 3 Pa. 483 (1846). 48. Willock v. Wilson, supra ; People v.
41. Id.; Stewart v. Gray, 23 Fed. Cas. No. Smith, 121 X. Y. 578, 24 N. E. 852 (1890).
13,428a, Hempst. (U. S.) 94 (1830). 49. Wood ley v. Findlay, 9 Ala. 716 (1846).
42. Huie v. Devore, supra. Compare, Rich v. Cohen, supra.
43. Lewis v. SutlifT, 2 Greene (Iowa) 186 50. Id.; Arnold v. Frazier, 5 Strobh. (S.
(1849). C.) 33 (18f)0).
44. Hatcher v. Rocheleau, 18 X. Y. 86 51. TIufT v. Campbell, 1 Stew. (Ala.) 543
(1858) ; Edwards v. Jones, supra. (1828). See Orman v. Xeville, 14 La. Ann.
45. Duconnum v. Hysinger, 14 111 249 392 (1859).
(1852); Haynes v. Cowen, 15 Kan. 637 52. Taylor v. Kilgore, 33 Ala. 214 (1858).
(1875) ; 5 Chamb., Ev., 3418, n. 8. 53. 5 Chamberlayne, Evidence, 3420.
809 PROBATE COURTS. 1077
of the act of Congress, 54 not having the machinery to comply with all the
requisitions of the act. 55 Xor will the requirement as to an attestation by the
clerk of the court from whence the record comes be satisfied by a certificate of
the clerk of some other court. 56 Where, however, under the laws of another
State, a transcript of a judgment rendered by a justice of the peace becomes
when filed in a designated court of record of that State, a judgment of the
latter court, it would seem that a duly authenticated copy of the record of
such court should be received, 57 upon proof of the law which so provides. 58
Congress not having provided a method for proving such proceedings resort
must, in the absence of some statutory provision, be had to the procedure at
common law, 59 transcripts so authenticated being admissible."" In many
states provision is made by statute which governs the mode of proving proceed-
ings before a justice of the peace in another State. 61 In such cases there
should be a compliance with the provisions of the law. 62
1077. Probate Courts. 63 The record of a court of probate in one State
may, when relevant, be proved in the courts of another State in accordance
with the provisions of the Federal act. 64 Thus it is generally held that pro-
ceedings in connection with the probate of a will are " judicial proceedings "
within the meaning of that term as used in the enactment and that a record
thereof may be proved either as there provided 65 or as may be allowed by the
law of the State in which offered. 66 So the appointment of a guardian in
another State may be proved in either way. 67 Where lands are situated
within the State in which the copy is offered in -evidence, it seems, according
to the weight of authority, that the copy will be admitted for the purpose of
proving title 68 without the will being probated in the State in which the
transcript is offered.
54. Warren v. Flagg, 2 Pick. (Mass.) 448 344 (1899); Tomlin v. Woods, 125 Iowa 367,
(1824) : Winham v. Kline, 77 Mo. App. 36 101 N. W. 135 (1904) ; Bent v. Glaenzer, 17
(1898) ; Stockwell v. Coleman, 10 Ohio St. 34 Misc. 569, 40 N. Y. Supp. 657 (1896) ; 5
(1859) ; 5 Chamb., Ev., 3420, n. 1. Chamb., Ev., 3420, n. 8.
55. Ransom v. Wheeler, 12 Abb. Pr. (N. Y.) 62. Gay v. Lloyd, 1 Greene (Iowa) 78
139 (1861). (1847); Warren v. Flagg, supra.
56. Trader v. McKee, 2 111. 558 (1839); 63. 5 Chamberlayne, Evidence. 3421.
Mahurin v. Bickford, 6 X. H. 567 (1834); 64. Spencer v. Langdon, 21 111. 192 (1859);
5 Chamb., Ev., 3420, n. 3. Washabaugh v. Entriken, 34 Pa. 74 (1859) ;
57. Rowley v. Carron, 117 Pa. 52, 11 Atl. Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621
435 (1887). (1895) ; 5 Chamb., Ev., 3421, n. 1.
58. Hinman v. Missouri, K. & T. Ry. Co., 83 65. First Nat. Bank of Memphis v. Kidd, 20
Kan. 35. 110 Pac. 102 (1910). Minn. 234 (1873); Keith v. Keith, 80 Mo.
59. Blackwell v. Glass, 43 Ark 209 (1884) ; 125 (1883) ; Walton v. Hall, 66 Vt. 455, 29
State v. Bartlett, 47 Me. 396 (1860) ; Strecker Atl. 803 (1894) ; 5 Chamb., Ev., 3421, n. 2.
v. Railson, 16 X D. 68, 111 N. W. 612 66. Gardner v. Ladue, 47 111. 211, 95 Am.
(1907) : 5 Chamb., Ev., 3420, n. 6. Dec. 487 (1868).
60. Winham v. Kline, supra; Mahurin v. 67. Brack v. Morris, 90 Kan. 64, 132 Pac.
Bickford, supra. 1183 (1913).
61. Sloane v. Wolf sf eld, 110 Ga. 70, 35 S. E. 68. Beatty v. Mason, 30 Md. 409 (1868) ;
1078) 1079 COPIES AKD TBANSCEIPTS; JUDICIAL. RECORD. 810
1078. State Courts in Federal Courts. 09 Tke record of a judgment in a
State court iu order to be admissible in a .Federal court, should be certified
in accordance with the mode prescribed by section 905 of the .Federal statutes. 70
The certificate should show that the person signing it as judge was, at the time
of so signing, the judge, chief justice or presiding magistrate of the court in
which the judgment is of record. 71 The certificate of the presiding judge
that the attestation is in due form is also held essential. 72 The act does not
apply when the record of a judgment rendered in a State court is offered in
evidence in a Federal court sitting in the same State. 73
1079. Foreign Courts. 74 Owing to inability to produce the record of the
proceedings in a foreign court, 75 the record being regarded as the best evi-
dence, 7 " proof may be made either by a sworn copy made by one who com-
pared it with the original 77 or by an exemplified copy, certified with the great
seal of State, 78 or by the certificate of an officer authorized by law, which cer-
tificate itself must be properly authenticated. 79 These are said to be the
usual if not the only modes. 80 In some States statutes prescribe requirements
for admission of copies of foreign judicial proceedings. 81
Barstow v. Sprague, 40 X. H. 27 (1859); Pickard v. Bailey, 26 N. H. 152 (1852);
Kelly v. Rosa, 44 X. C. 277 (1853); 5 Chamb., Lincoln v. Battelle, 6 Wend. (N. Y.) 475
Ev., 3421, n. 8. (1831) ; 5 Chamb., Ev., 3423, n. 3.
69. 5 C'hamberlayne, Evidence, 3422. 78. Lincoln v. Battelle, supra; Gunn v.
70. Act of Cong. May 26, 1790; U. S. Rev. Peakes, 36 Minn. 177, 30 N. W. 466 (1886) ;
Stat 905; U. S. Comp. Stat. 1901, p. 677. Spaulding v. Vincent, supra; 5 Chamb., Ev.,
71. United States v. Biebusch, 1 Fed. 213, 1 3423, n. 4.
McC'rary (U. S.) 42 (1880) : 5 Chamb., Ev., 79. Id.; Thompson v. Mason, 4 111. App. 452
3422, n. 2. (1879) ; 5 Chamb., Ev., 3423, n. 5.
72. looker v. Thompson, 24 Fed. Cas. No. 80. Church v. Hubbard, 2 Cranch. (U. S.)
14,097, 3 McLean 92 (1842). 187, 2 L. ed. 249 (1804). See Buttrick v.
73. Mewster v. Spalding, 17 Fed. Cas. No. Allen, supra; 5 Chamb., Ev., 3423, n. 6.
9,513. 6 McLean 24 (1853). 81. Wickersham v. Johnston, supra;
74. .") C'hamberlayne, Evidence, 3423. Thompson v. Mason, supra; Capling v. Her-
75. Spaulding v. Vincent, 24 Vt 501 man, 17 Mich. 524 (1869); Linton v. Baker,
(1852). 1 Xeb. (Unoff.) 896, 96 N. W. 251 (1901);
76. Wickersham v. Johnston, 104 Cal. 407, Van Deventer v. Mortimer, 56 Misc. 650, 107
38 Pac. 89 (1894). N. Y. Supp. 564 (1907); 5 Chamb., Ev.,
77. Buttrick v. Allen, 8 Mass. 272 (1811) ; 3423, n. 7.
CHAPTER LII.
PUBLIC DOCUMENTS; OFFICIAL REGISTERS; PAPERS AND WRITINGS.
Public documents; official registers, papers and writings, 1080.
certificates by public officers, 1081.
particular documents, 1082.
same, 1083.
private writings of record; conveyances, 1084.
1080. Public Documents; Official Registers, Papers and Writings. 1 Eecords
kept by public officers in the course of their official duty under a law which
requires the keeping of such records or which are required by the nature of the
office are ordinarily admissible 2 as prima facie* though not conclusive evi-
dence of the facts which they assert. 4 The rule also applies to official documents
or papers which an official is required to prepare in the performance of his
duty, 5 or to reports so made, 6 even though the action is one between third
parties. 7 A record to be admissible as a public record should be intended as
a mode of preserving the recollection of the facts. 8 It is further required
that it must have been made either by a superior officer or under his direction
and be a record of occurrences or acts which either by statute or the duties of
his office he was required to keep, 9 though the fact that the record may contain
some matter which should not appear thereon will not operate to exclude it as
to those facts which are properly entered. 10 A record not made in the per-
formance of official duty will not be received. 11 The mere fact of the entry
of some matter upon the record will not render it admissible as proof thereof ;
it must have been properly incorporated therein. 12 It is essential where such
1. 5 Chamberlayne, Evidence. 3424- v. Nelson, 25 Pa. 232 (1855); Seavey v.
3428. Seavey, 37 N. H. 125 (1858).
2. Chicago v. Fitzmaurice, 138 111. App. 239 7. Enfield v. Ellington, supra.
( 1907 ) : Delaney v. Framingham Gas, etc., 8. Hegler v. Faulkner, 153 U. S. 109, 14
Co., 202 Mass. 359, 88 N. E 773 (1909) : S Ct. 779, 38 L. ed. 653 (1893).
State v. Baker, 35 Nev. 1, 126 Pac. 345 9. Allen v. Kidd, 197 Mass. 256, 84 N. E.
(1912) : 5 Chamb., Ev., 3424, n. 1. 122 (1908) ; Taylor v. Jackson, 151 Mich. 639,
3. Trentham v. Waldrop, 119 Ga. 152, 45 115 N. W. 977 (1908): Carter v. Hornback,
S. E. 988 (1903) ; Hayward v. Bath, 38 N. H. 139 Mo. 238, 40 S. W. 893 ( 1897) ; 5 Chamb.,
179 (1859). Ev., 3425, n. 2.
4. Enfield v. Ellington, 67 Conn. 459, 34 Atl. 10. Scott v. Williams, 74 Kan. 448, 87
318 (1896). Pac. 550 (1906).
5. Bruce v. Holden, 21 Pick. (Mass.) 187 11. Lloyd v. Simons, 90 Minn. 237, 95 N.
(1838) ; City of Dickinson v. White, 25 N. D. W. 903 (1903).
523, 143 N. W. 754 (1913). 12. Jackson v. Collins, 16 N. Y. Supp. 651
6. Illinois Cent. R. Co. v. Holt, 29 Ky. L. (1891). Entries should have been made
Rep. 135, 92 S. W. 540 (1906); Allegheny promptly after the transaction which they
811
1081 PUBLIC DOCUMENTS; OFFICIAL REGISTERS. b!2
a book is offered, that there should be some proof of its official character. 13
It is not necessary that such a book should be kept in pursuance of a mandate
of a statute or that its keeping is indispensable to the nature of the office. 14
A record may be kept by virtue of a statute or an ordinance for specific pur-
poses only and not be a public record in the sense that it is competent evidence
for all purposes. 15 A record which is in favor of the official may be admis-
sible, e.g., to prove the official's appointment lt5 or election to office ; the per-
formance of official acts by him; 1T the rendition of services in an action to re-
cover for their value, 18 and the like. Where the entry is against the entrant's
interest and he is deceased, 19 it then becomes admissible also within the prin-
ciple upon which entries and memoranda of persons, since deceased, are ad-
mitted.^
1081. Certificates by Public Officers. 21 Certificates of public officials ex-
ecuted by them in the performance of their duties are regarded as documents
of a public nature and are admissible, 22 in many cases under express statutory
enactment, 23 at least as prima facie evidence of the facts recited therein, 24
upon the principle that every one acting officially is presumed to have done his
duty until the contrary appears. 25 They are only admissible, however, as
evidence of those facts which the officer in the performance of his duty is au-
thorized or required to certify to. 26 Where a certificate is given for a par-
ticular purpose, it will not ordinarily be received as evidence for any other
purpose. 27 The official character of the one making a certificate should be
purport to record. Birmingham v. Pettit, 21 20. Id.; 5 Chamh , Ev., 3428, nn. 6, 7, 8.
D. C. 209 (1888) 21. 5 Chamberlayne, Evidence, 3432-
13. Hall v. People, 21 Mich. 456 (1870). 3434.
14. County of La Salle v. Simmons, 10 111. 22. Whalen v. Gleeson, 81 Conn. 638, 71
513 (1849) (county commissioners' book) ; Atl. 908 (1903) ; Black v. Chicago, B. & Q. R.
Groesbeck v. Seeley, 13 Mich. 329 (1865) Co., 237 111. 500, 86 X. E. 1065 (1909): Lacy
(county treasurer's book of tax sales) ; State v. Kossuth County, 106 Iowa 16, 75 N. W 689
v. Van Winkle, 25 X J. L. 73 (1855) (school (1898) ; Erickson v. Smith, 2 Abb. Dec. (N.
trustees' minutes) ; White v. U. S, 164 U. S. Y.) 64, 38 How. Pr. 454 (1860) ; 5 Chamb.,
100, 17 S. Ct. 38, 41 L. ed. 365 ( 1896) (jail- Ev., 3432, n. 1.
or's record book) ; 5 Chamb., Ev., 3426. n 2 23. Com. v. Waite, 11 Allen (Mass.) 264, 87
15. Butchers S & M. Assoc v. Boston. 214 Am. Dec. 711 (1865) ; Davis v. Watkina, 56
Mass. 254, 101 X. E. 426 (1913) (register Xeb. 288, 76 X. W. 575 (1898) ; State v. Mont-
kept by a draw tender) ; Buffalo Loan, etc., gomery, 57 Wash. 192, 106 Pac. 771 (1910) ;
Co. v. Knights Templar, 126 X Y. 450, 27 5 Chamb , Ev., 3432, n. 2
N. E. 942 (1891) (board of health death rec- 24. Jonesboro L. C. & E. R. Co. v. St. Fran-
ord); Kerr v. Metropolitan St. R Co., 27 cis Levee Dist., 80 Ark. 316, 97 S. W. 281
Misc. 190, 57 X. Y. Supp. 794 (1899) (police (1906).
blotter) ; 5 Chamb., Ev., 3427. 25. Whalen v. Gleeson, supra. Such a cer-
16. Briggs v. Murdock, 13 Pick. (Mass.) tificate will be received in behalf of the officer
305 (1832). making it. McKnight v. Lewis, 5 Barb. (X.
17. Bissell v. Hamblin, 6 Duer (X. Y.) 512 Y.) 681 (1849).
(1857). 26. Wagner v. Allemania, 71 Misc. 448, 128
18. Bissell v. Hamlin, 13 Abb. Pr. (X. Y.) X. Y Supp. 629 (1911) : Marlow v. School
22 (I860). Dist. Xo. 4, 29 Okl. 304. 116 Pac. 797 (1911).
19. Field v. Boynton, 33 Ga. 239 (1862) ; 27. Clark v. Detroit Locomotive Works, 32
Livingston v. Arnoux, 56 X. Y. 507 (1874). Mich. 348 (1875) ; Erickson v. Smith, supra.
813 PARTICULAR DOCUMENTS. 106:2
shown to the satisfaction of the presiding judge, 28 and also that he executed
the same in his official capacity 29 and in the line of his official duty or au-
thority. 30 In so far as the matters certified to do not come within the official
duty or cognizance of the officer the certificate will not be received as evidence
of such statements. 31 While a certificate executed by a deputy in the name of
his principle has, in some cases been received where it appeared that the person
so acting was in fact a deputy, 32 as has also a certificate signed by a deputy as
such, 33 yet iu the absence of some provision of law expressly or impliedly au-
thorizing the appointment of a deputy who can authenticate papers in the
name of his principal, there would seem to be no sound reason to justify the
admission of such a certificate in evidence. 34
1082. Particular Documents. 35 Appraisals made by official custom house
appraisers are in the nature of documents or public writings and while they
are not conclusive as to the cost or value of the goods yet they may in connection
with other evidence tend to establish those facts. 36
Birth, Death and Marriage Registers. A register of births required by
law to be kept or a duly authenticated copy thereof, is legal evidence of a birth
which is entered thereon. 37 A death may be proved by a register in which
the law requires entries of deaths to be made. 38 A record of marriages which
is kept in pursuance of a statutory requirement, or an attested copy thereof,
is of course legal evidence of a marriage there recorded. 39
Bond Registers. Where the law provides for the keeping of a book in
which the bonds issued by corporations shall be registered and it is shown to
the satisfaction of the presiding judge that a register, offered in evidence, was
kept as provided for by the act, it will be received. 40
Clerks of Courts; Records Kept By. Records kept by clerks of courts
either in pursuance of some requirement of a legislative enactment or of the
express rules of court, or in the performance of their necessary duties, are
28. Harbers v. Tribby, 62 111. 56 (1871) ; 846 (1895) ; Laffan v. U S., 122 Fed. 333, 58
Prew v. Donahue, 118 Mass. 438 (1875). C. C. A. 495 (1903).
29. Holtman v. Holtman (Ky. 1909), 114 34. Carter v. Territory, 1 X. M. 317
S W. 1198. (1859) ; 5 Chamb., Ev., 3434.
30. Sullivan v. State, 66 111. 75 (1872); 35. 5 Chamberlayne, Evidence, 3429-
Reed v. Inhabitants of Scituate, 7 Allen 3431 ; 3435-3447.
(Mass.) 141 (1863); Parr v. Greenbush. 72 36. Buckley v. U. S., 4 How. (U. S.) 251,
X. Y. 463 (1878) : McKinnon v. Fuller. 33 11 L. ed. 961 (1846) ; 5 Chamb., Ev., 3429.
S. D. 582, 146 X. W. 910 (1914) ; 5 Chamb, 37. Murray v. Supreme Lodge X. E. O. P.,
Ev., 3433, n. 3. 74 Conn. 715, 52 Atl. 722 ( 1902) : Howard v.
31. Cutter v. Waddincfham, 33 Mo. 269 Illinois Trust & Sav. Bank, 189 111. 568, 59
(1862) ; Tripler v Mayor of Xew York. 125 X. E. 1106 (1901) ; 5 Chamb, Ev., 3430.
X. Y. 617, 26 X. E. >21 (1891) ; 5 Chamb., 38. Id.; 5 Chamb., Ev.. 3437.
Ev., 3433, n. 4. 39. Id.; Xelson v. State, 151- Ala. 2, 43 So.
32. Byington v. Allen. 11 Iowa 3 (1860): 966 (1907); Com. v. Hayden, supra; 5
Steinke v. Graves, 16 Utah 293, 52 Pac. 386 Chamb.. Ev., 3444.
(1898). 40. Lovinor v. Warren County, 14 Bush
33. Com. v. Hayden, 163 Mass. 453, 40 N. E (Ky.) 316 ( 1878).
1082 PUBLIC DOCUMENTS; OFFICIAL REGISTERS. 814
subject to the same general principles in respect to their admission. Thus a
record kept by the clerk of a court has been received for the purpose of show-
ing some fact in respect to the fees, 41 the issuance and return of writs, 42 the
execution of a bond by the sheriff, 43 an attachment of real estate, 44 and other
matters 45 thus entered of record by him.
County Records. The nature and importance of duties performed by
county .boards, such as county commissioners, 40 are ordinarily of such a char-
acter that even though there is no statute requiring that a record be kept of
their proceedings it is not only proper but necessary that such a record be kept
by them, 47 and when so kept it will be received in evidence. 48 In like man-
ner records kept by any one of the various county officials in the performance
of his official duties, as for instance of a county treasurer 49 or of a county
clerk, 80 have been admitted in evidence as proof of the facts which they
assert.
Election Certificates, Registry Lists, Etc. An official registry list of elect-
ors together with the check lists are admissible in evidence to prove the
domicil of one whose name appears thereon, 51 to show his qualifications to vote
and to establish the fact that he voted. 52 Similarly poll books and certificates
of election officers of a township returned to the officials designated by law
have been received as prima facie evidence of an election. 53
Federal Official Records. Full faith is given to written instruments emanat-
ing from officers of the United States government in their official capacity.
Thus the courts have admitted receipts, 54 pamphlets, 55 reports, 50 books of ac-
count, 57 and others of a like character issued by government officials as well as
records kept by them in the performance of their official duties. 58
Inventories. Inventories of estates of decedents made in pursuance of an
order of the probate court issued under authority of a statute are admissible
41. Cooper v. People, 28 Colo. 87, 63 Pac. 49. Sawyer v. Stilson, 146 Iowa 707, 125
514 (1900); Lycett v. Wolff, 45 Mo. App. X. W. 822 (1910).
489 (1891) ; 5 Chamb., Ev , 3435, n. 1. 50. Board of County Com'rs v. Patrick, 18
42. Browning v. Flanagin, 22 N. J. L. 567 Wyo. 130, 104 Pac. 531, 107 Pac. 748 (1909).
(1849). 51. Enfield v. Ellington, 67 Conn. 459, 34
43. Bryan v. Glass' Securities, 2 Humphr. Atl. 318^1896).
(Tenn.) 390 (1841). 52. Id.; Langhammer v. Munter, 80 Md.
44. Metcalf v. Munson, 10 Allen (Mass.) 518, 31 Atl. 300 (1895).
491 (1865). 53. Merritt v. Hinton, 55 Ark. 12, 17 S. W.
45. Lawrence County v. Dunkle, 35 Mo. 395 270 (1891) ; State v. Baker, 35 Nev. I, 126
(1865). Pac. 345 (1912) ; 5 Chamb, Ev., 3438.
46. Coler v. Rhoda School Tp., 6 S. D. 640, 54. Herriot v. Broussard, 4 Mart. N. S.
63 N W. 158 (1895). (La.) 260 (1826).
47. Johnson v. County of Wakulla, 28 Fla. 55. Nichols v. Chicago & W M. R. Co., 125
720. 9 So. 690 (1891). Mich. 394, 84 N W. 470 (1900)
48. Bader v. State. 176 Ind 268, 94 N. E. 56. Miles v Stevens, 3 Pa. 21, 45 Am.
1009 (1911); Van Ness v. Hadsell, 54 Mich. Dec. 621 (1846).
560, 20 N W. (1884) ; 5 Chamb., Ev., 3436, 57. United States v. Kuhn, 4 Cranch (U.
n. 3. S. C. C.) 401 (1833).
58. Infra, nn. 55-60.
815 PARTICULAR DOCUMENTS. 1082
for many purposes as to every person since they are made by those acting
under authority of the law. 59
Land Records of Grants and Patents. Ordinarily the records of a land
office showing the issuance of a grant, deed or certificate have been regarded as
within the operation of the rule permitting the reception in evidence of records
kept by a public official and the record of a patent has been received as of a
grant of equal dignity with the patent itself, since it shows, like the patent that
the grant has been issued. 01 Its identity as the original record must be estab-
lished. 02 Documents of. the United States Land Office have been admitted
where a register of the local land office identified them as the originals. 63
Letters of an Official Character. Letters from government officials are
frequently to be considered official acts and as such come within the applica-
tion of the general rule controlling official documents and records. 64 This
also applies to letters received by such persons in their official capacity. 65
Military and Naval Records. Records made by the adjutant-general of a
State of the muster rolls of different regiments furnished by the State for
military service *>f the Federal government and which have been recognized
by the legislature of the State as public records of his office are competent evi-
dence of the enlistment, mustering and discharge of members of such regi-
ments. (>c Commissions and discharges may also be proved by a roster kept as
required by the proper recording officers. 67 Similarly the enrollment of a
company is the best evidence of whether a certain person has in fact been
enrolled. 08 Likewise the presence or absence of a member of a military com-
pany may be shown by the company's records. 69 The same rule applies in
the case of naval records. 7 "
Municipal Re.rords.-~ Records which have been kept by city officials either
in pursuance of a statutory requirement 71 or as a necessary part of their official
duty 72 even in the absence of statutory mandate are, as in the case of other
59. Seavey v. Seavey. 37 X H. 125 (1858) ; Am. Dec. 598 (1847) ; 5 Chamb., Ev., 3443.
Roger's Admx. v. Chandler's Admx. 3 Munf. 66. Board of Com'rs of Monroe County v.
(Va.) 65 (1811) ; 5 Chamb., Ev., 3440. May, 67 Ind. 562 (1879) ; Allen v. Halsted.
60. Sylvester v. State. 46 Wash 585, 01 39 Tex. Civ. App. 324, 87 S. W. 754 (1905).
Pac 15 (1907): William James' Sons Co. v. 67. Matthews v. Bowman, 25 Me. 157
Crouch, 72 W. Va. 794. 79 S. C. 815 (1913) ; (1845).
5 Chamb., Ev., 3441, n. 2. 68. Gale v. Currier. 4 N. H. 169 (1827).
61. Reno Brewing Co v. Packard, 31 Nev. Prima facie evidence. See Shattuck v. Gil-
433, 103 Pac 415. 104 Pac. 801 (1909); 5 son, 19 N. H. 296 (1848).
Chamb, Ev., 3441, n. 3. 69. Robinson v. Foljrer, 17 Me 206 (1840).
62. Stewart v. Lead Belt Land Co, 200 Mo. Compare, Com. v. Pierce, 15 Pick. (Mass.) 170
281, 98 S. W 767 (1906). (1833).
63. Harmerin<r v . Rowland, 25 X. D 38, 70. Wallace v. Cook. 5 Esp. 117 (1804); 5
141 X. W 131 (1913) : 5 Chamh.. Ev.. 3442. Chamb., Ev., 3445.
64. Carpenter v. Bailey, 56 X. H. 283 71. St. Charles v. O'Mailey. 18 Til. 407
(1876) ; American Banana Co. v. United Fruit (1857) : Grafton v. Reed, 34 W. Va. 172, 12
Co.. 160 Fed. 184 (1908); 5 Chamb., Ev., S. E. 767 (1890).
3443, n. 1. 72. Fruin-Bambrick Constr. Co. v. Geist, 37
65. Hammatt v. Emerson, 27 Me. 308, 46 Mo. App. 509 (1889).
1083 PUBLIC DOCUMENTS; OFFICIAL, REGISTERS. 816
official registers and records, admissible 73 as the best evidence of the acts of a
municipality whenever those acts are to be proved. 74 Thus they have been
received to show the passage of an ordinance, 75 the report of a board of public
works to the common council and its action thereon ; 7ti a resolution of a board
of health condemning buildings and ordering their destruction; 77 the location
and alteration of streets, 78 a change of grade made pursuant to a legal vote of
the authorities, 79 the amount due a gas company for gas supplied under a
contract 8U and other similar matters. Such records will only be received as
proof of such facts as are properly entered thereon by one in the performance
of his official duties. 81
Official Maps. An official map made under the authority of a State or of
the United States may also be considered as a record and subject to the same
principles controlling the admission of the latter. 82 Such map have been re-
ceived to show the jurisdiction of the court; 83 an intent of the owners of land
to dedicate and the extent of the dedication ; 84 the line of a street ; 85 an
accident occurred within the limits of a certain town ; 86 to identify the par-
ticular parcel involved in the controversy; 87 and to prove the' identity and de-
scription of land conveyed by a patent. 88 Where the genuineness of a map is
disputed some evidence may be required of its authenticity. 89
1083. Particular Documents, Continued. 90 A post-office record, an official
registry kept by a postmaster containing statements of various matters required
by law and by the regulations of the postal department of the government to be
entered therein, will be generally received in proof of any relevant fact which
it recites. 91 So where relevant the record of mails received and sent away
may be admitted, 92 as may also the record of registered letters. 93
73. Edwards v. Cedar Kapids, 138 Iowa 421, Mo. 443 (1881) ; People v. Denison, 17 Wend.
116 N. W. 323 (1908); State v. Heffernan, (N. Y.) 312 (1837); Stephenson v. Lees-
243 Mo. 442, 148 S. W. 90 (1912) ; Tenement burgh, 33 Ohio St. 475 (1878) ; 5 Chamb., Ev.,
House Dept. v. Weil, 134 N. Y. Supp. 1062 3447, n. 1.
(1912) ; 5 Chamb., Ev., 3446, n. 3. 83. United States v. Beebe, 2 Dak. 292, 11
74. Denning v. Roome, 6 Wend. (N. Y.) N. W. 505 (1880).
651 ( 1831 ) . 84. Chicago, B. & Q. R. Co. v. Banker, 44 111.
75. Greeley v. Hamman, 17 Colo. 30, 28 Pac. 26 (1867).
460 (1891). 85. Pittsburg, etc., R. Co. v. Rose, 74 Pa.
76. Alderman v. New Haven, 81 Conn. 137, 362 (1873). Compare, Com. v. Switzer, 134
70 Atl. 626 (1908). Pa. 383, 19 Atl. 681 (1890).
77. Kwong Lee Yuen & Co. v. Alliance As- 86. Chicago, etc., R. Co. v. McArthur, 53
sur. Co., 16 Hawaii 674 (1905). Fed. 464, 3 C. C. A. 594 (1892).
78. Barker v. Fogg, 34 Me. 392 (1852). 87. Meikel v. Greene, 94 Ind. .344 (1883).
79. Cook v. Ansonia, 66 Conn. 413, 34 Atl. 88. Surget v. Doe, 24 Miss. 118 (1852).
183 (1895). 89. Wooten v. Solomon, 139 Ga. 433, 77 S.
80. St. Louis Gas Light Co. v. St. Louis, 86 E. 375 (1912) ; Com. v. King, 150 Mass. 221,
Mo. 495 (1885). 22 N. E. 905 (1889).
81. Fraser v. Charleston, 8 S. C. 318 90. 5 Chamberlayne, Evidence, 3448-
(1876). 3457.
82. Colton Land & W. Co. v. Swartz, 99 Cal. 91. Gurney v. Howe, 9 Gray (Mass.) 404,
278, 33 Pac. 878 (1893) ; Henry v. Dulle, 74 69 Am. Dec. 299 (1857) ; Haddock v. Kelsey,
PARTICULAR DOCUMENTS. 1083
Prison Records. Records kept by the official in charge of a jail or prison
are admissible to show the date of the commitment and discharge of a prisoner, 94
though no statute provides for such a book.'- 15
School Records. Records kept by the officials of a school district as re-
quired by statute are admissible !nj and have been received to show the election
of a member of the school committee ; 9T as evidence of a regular notice for a
school district meeting, 98 and to show the amount of the district's indebted-
ness, 99 or the indebtedness cf a school official to it in an action against him
and his sureties. 1 So a record which the law requires to be kept by school
authorities concerning the age of school children and the like will be received
as evidence of any fact required to be there entered, though it is not conclusive
in regard thereto. 2
Sheriff's Books and Records. Records kept by a sheriff concerning his
official acts, 3 such as entries on a docket kept by him 4 or in his execution
book, 5 have been received as proof of facts stated therein. Where he is de-
ceased, they have also been received as declarations against his interest. 6
State Officials' Records. Records and documents kept by and in the cus-
tody of State officers, frequently if not generally in pursuance of some express
legislation, will be received when relevant." Thus a bank pass-book regularly
and accurately kept by a State treasurer, in connection with the discharge of
his duties, has been received as a part of his official transactions in an action
on his bond. 8
Surveyors' Records. Reports made by an official surveyor or records kept
by him in the performance of his official duties are applicable to the same gen-
eral rules relating to the admission in evidence of public records and docu-
ments, 9 as are also those of a deputy surveyor. 10 A survey need not recite
3 Barb. (X Y.) 100 (1848) ; 5 Chamb., Ev., 3. Albrecht v. State, 62 Miss. 516 (1885) ;
3448, n. 1. Brewster v. Vail, 20 X. J. L. 56, 38 Am.
92. Miller v. Boykin, 70 Ala. 469 (1881) ; Dec. 547 (1842) ; 5 Chamb., Ev.. 3451, n. 1.
Merriam v. Mitchell, 13 Me. 439, 29 Am. Dec. 4. Fleming v. Williams, 53 Ga. 556 (1875).
514 (1836). 5. Secrist v. Twitty, 1 McMull. (S. C.) 255
93. Gurney v. Howe, supra. (1840).
94. White v. U. S., 164 U. S. 100, 17 S. Ct. 6. Field v. Boynton, Adm'r., 33 Ga. 239
38, 41 L. ed 365 (1S96). (1862).
95. Id.: 5 Chamb., Ev., 3440. 7. Parrish v. Com., 136 Ky. 77, 123 S. W.
96. Board of Education v. Moore. 17 Minn. 339 (1909) ; Harper v. Marion County, 33
412 ( 1871) : 5 Chamb., Ev.. 3450, n. 1. Tex. Civ. App. 653, 77 S. W. 1044 (1903).
97. Peck v. Smith. 41 Conn. 442 (1874). 8. Com. v. Tate, 89 Ky. 587, 13 S. W. 113
98. Sanhorn v. School Di*t. Xo. 10, 12 Minn. (1890). It is admissible if written in pencil.
17 (1S661. Franklin v. Tiernan, 56 Tex. 618 (1882).
99. Wormley v District Tp. of Carroll, 45 But see Meserve v. Hicks, 24 X. H. 295
Iowa 666 (1877). (1851) ; 5 Chamb., Ev.. 3452, n. 3.
1. Independent School Dist. of Sioux City 9 Sherrard v. Cudney, 134 Mich. 200, 96
v. Hubbard, 110 Iowa 58, 81 X. W. 241 X. W. 15 ( 1903) ; Clark v. Williams, 29 Neb.
(1899). 691, 46 X. W. 82 (1890) ; Conkling v. West-
2. Levels v. St. Louis & H. R. Co., 196 Mo. brook, 81 Pa. 81 (1872) : 5 Chamb., Ev.,
606, 94 S. W. 275 (1906). See also, Swift 3453, n. 1.
v. Rennard, 119 111. App. 173 (1905). 10. Russell v. Werntz, 24 Pa. 337 (1855).
sj 1083 PUBLIC DOCUMENTS; OFFICIAL REGISTERS. 818
the authority under which it was made. 11 Where, however, a statute pre-
scribes what a surveyor's record shall contain it must comply with these re-
quirements. 12
Tax Books, Etc. Books and records kept by and containing entries of the
official acts of a tax assessor 13 or collector may be received in the same way H
as at least prima facie evidence of the facts stated. 15 So an entry on tax
books showing the amount of assessments which is marked '' paid " has been
received as prima facie evidence of their payment. 10 Similarly the assessment
roll, 17 the delinquent tax list, 18 the certificate of a tax sale, 19 and a book con-
taining entries regarding the sale and redemption of land are admissible. 20
So a stub of a redemption certificate kept in the county auditor's office has been
received, 21 as has also a tax receipt stub book, 22 a receipt given by a county
treasurer to a tax collector, 23 and one given by the latter to the taxpayer in
pursuance of a statute requiring it. 24 There is authority for the doctrine that
a tax list or assessment roll is not admissible for any purpose except relating
to the assessment and collection of a tax, as where offered for the purpose of
showing domicile 25 or the location of the land. 26 On the other hand they
have been received as bearing upon the question of solvency, 27 to show in whose
name property was assessed, 28 and in the case of an agreement between a
landlord and tenant tha^t the latter is to pay the taxes, the tax roll placed in the
hands of the county treasurer for collection has been received as competent evi-
dence. 29 A tax return has also been received as an admission. 30
11. Sproul v. Plumsted, 4 Binn. (Pa.) 189 20. Bush v. Stanley, 122 111. 406, 13 X. E.
(1811). 249 ( 1887 ) ; Groesbeck v. Seeley, 13 Mich. 329
12. Pugh v. Schindler, 127 Mich. 191, 86 N. (18G.5).
W. 515 (1901) 21. Ellsworth v. Low, 62 Iowa 178, 17 N..W.
13. Milo v. Gardiner, 41 Me 549 (1856); 450 (1883).
Houston v. Stewart, 40 Tex. Civ. App 499, 90 22. Hudson v. Herman, 81 Kan. 627, 107
S. W. 49 (1905). Where the financial condi- Pac 35 (1910).
tion of a resident of the county is in issue a 23. Williams v. Fitzpatrick, 20 Ala 791
copy of the tax list is admissible to prove it. (1852).
Churchill v Jackson, 132 Ga. 666, 64 S. E. 24. Johnstone v. Scott, 11 Mich. 232 (1863).
691, 49 L. R. A. (N. S.) 875 (1909). Evidence of date of assessment. National L.
14. Miller v. Hale, 26 Pa. 432 (1856) ; Day Ins. Co. v. Butler, 61 Xeb. 449, 85 X. W. 437
v. Peasley, 54 Vt. 310 (1881); Mitchell v. (1901).
Pillsbury, 5 Wis. 407 (1856) ; 5 Chamb., Ev., 25. Sewall v. Sewall, 122 Mass. 156, 23 Am.
3454, n. 2. Rep. 299 (1877) ; 5 Chamb., Ev., 3454, nn.
15. Whalen v. Gleeson, 81 Conn. 638, 71 Atl. 14, 15.
908 (1909) ; Clark v. Fairley, 30 Mo. App. 335 26. Com. v. Heffron, 102 Mass. 148 (1869).
(1888); Ripton v. Brandon, 80 Vt. 234, 67 27. Winter v. Bandel, 30 Ark. 362 (1875).
Atl. 541 (1907). 28. Indiana Union Traction Co. v Benadum,
16. Scranton Poor Dist. v. Directors of 42 Ind. App. 121, 83 X. E. 261 (1908). Com-
Poor, 106 Pa. 446 (1884). pare Seivel-Suessdorf C. & L. Mfg. Co. v.
17. Lake County v. Sulphur Bank Quick- Manufacturers Ry. Co., 230 Mo 59, 130 S.
silver Min. Co., 66 Cal. 17, 4 Pac. 876 (1884). W. 288 (1910).
18. State v. Xevada Cent R. Co., 26 Xev. 29. Smith v. Scully, 66 Kan. 139, 71 Pac.
357, 68 Pac. 294, 69 Pac. 1042 (1902). 249 (1903).
19. McKeen v. Hashell, 108 Ind. 97, 8 X. E. 30. Ivey v. Cowart, 124 Ga. 159, 52 S. E.
901 (1886). 436 (1905).
819 CONVEYANCES. 108-i
Upon the question of value there is a diversity' of opinion, there being sev-
eral decisions holding that the assessment roll is not admissible in this connec-
tion in an action between third parties. 31 In other cases it has, however, been
admitted as competent evidence to show value, 32 it being declared in one de-
cision that it should be received for what it is worth and that its weight is for
the jury. 33 In many cases they have been received as admissions. 34
Town Officials' Records. The records kept by town officials may properly
be received as evidence of facts stated by them relating to the performance of
their duties. 35 Thus records and books kept by selectmen, 36 town commis-
sioners, 37 town clerks, 38 town treasurers 39 and overseers of the poor, 40 have
been received.
Weather Records. Records kept by certain officials under the direction of
the United States government of weather observations and conditions in vari-
ous parts of the country, come within the general rule which permits of the
introduction into evidence of official registers or records kept by persons in
public office. 41 So weather records kept by the United States weather bureau
at a place have been received as evidence of what the weather was at another
place ten miles distant, expert evidence having been first introduced that such
records at any place would as a general rule be the true record for the sur-
rounding country. 42
1084. Private Writings of Record; Conveyances. 43 Where it is sought to
prove the contents of an instrument in the nature of a conveyance between pri-
vate parties it might seem that the record thereof should not be received with-
out accounting for the non-production of the original, 44 in the absence of some
31. Dudley v. Minnesota & X. W. R. Co., 77 37. Cheatham v. Young, 113 N. C. 161, 18
Iowa 408. 42 N. \V. 350 (1889) ; Kenerson v. S E. 92 (1893).
Henry, 101 Mass. 152 (1869). 38. Lowe v. Aroma. 21 111. App. 598
32. White v. Beal & Fletcher Grocer Co.. (1886): Briggs v. Murdock, 13 Pick. (Mass.)
65 Ark. 278, 45 S. W. 1076 (1898); Indiana 305 -(1832).
Union Traction Co. v. Benadum, supra; 5 39. Rindge v. Walker, 61 N. H. 58 (1881);
Chamh.. Ev., 3455, n. 2. Xye v. Kellam, 18 Vt. 594 (1846).
33. Steam Stone-Cutter Co. v. Scott, 157 40. Corinna v. Inhabitants of Hartland.
Mo. 520, 57 S. W. 1076 (1900). 70 Me 355 (1879) ; Cabot v Town of Walden,
34. Supra, 554: 2 Chamb., Ev.. 1374. 46 Vt. 11 (1873).
35. Leavitt v. Somerville, 105 Me. 517, 75 41. Chicago & Eastern I. R. Co. v. Zapp,
Atl. 54 (1909): Pilkins v. Hans, 87 Neb. 7, 110 111. App 553 (1903): Moore v. Gaus &
126 N. W. 864 (1910); 5 Chamb, Ev., Sons Mfg. Co., 113 Mo. 98. 20 S. W. 975
3456, n. 1. (1892) : Hufnagle v. Delaware & Hudson Co.,
36. Bow v. Allenstown, 34 X. H. 351. 69 227 Pa. 476, 76 Atl. 205 (1910); 5 Chamb.,
Am. Dec. 489 (1857) : Watson v. Xew Mil- Ev., 3457, n. 1.
ford, 72 Conn. 561. 45 Atl. 167 (1900) So 42. Mears v. Xew York, etc., R. Co.. 75
the record upon which a warrant issued by Conn. 171, 53 Atl. 610 (1902). See Huston
the selectmen calling for a town meeting was v. Council Bluffs, 101 Iowa 33. 69 X. W.
entered is admissible. Com. v. Shaw, 7 Mete. 1130 (1897).
(Mass.) 52 (1843). Also the original war- 43. 5 Chamberlayne, Evidence, 3458-
rant. Bucksport v. Spofford, 12 Me. 487 3460.
(1835). 44. Peck v. Clark, 18 Tex. 239 (1857);
1084: PUBLIC DOCUMENTS; OFFICIAL REGISTERS. b-20
statute to the contrary. In some cases, however, records of deeds and other
writings seem to have been received without reference to any statute authoriz-
ing their admission in evidence. 45 The question as to the admissibility of the
record of a deed or other private written instrument required by law to be re-
corded is, with possibly few exceptions, controlled by legislative enactments.
The tendency of such legislation has been to make the record of the writing
admissible, 40 without further proof, 47 in many cases it being made of equal
force and effect as the original. 48 Under a statute of this nature a record pur-
porting to be transcripts of deeds from other records has been received, 49 as
has also a book into which records have been transcribed from a temporary
book which is shown to have been lost or destroyed. 00 Some of the statutes
merely provide that the record may be received as secondary evidence of the
writing, upon satisfactory proof of loss of or inability to produce the original. 51
Regardless of such statutes, however, it would seem that not the record but the
original instrument should be produced where the question involved is whether
such instrument has been forged. 52
To render a record admissible under a statute the requirements of the
enactment must be complied with in regard to proving the same, 53 and the
foundation prescribed thereby for its admission must be laid 54 to the satisfac-
tion of the presiding judge. If notice to the adverse party is required it must
be given. 55 Also it is said that the record must have been made in compliance
with the law relating to the recording of instruments 5G and the instrument
itself must be executed in compliance with the provisions of the statute. 57
It must be an instrument which the law authorizes or directs to be recorded. 58
Bradley v. Silsbee, 33 Mich. 328 (1876); 5 S. W 804 (1903): Delaney v. Errickson,
Chamb., Ev., 3458, nn. 1, 2. supra; 5 Chamb., Ev., 3459, n 6
45. Trammell v. Thurmond, 17 Ark. 203 52. People v. Svvetland, 77 Mich 53, 43
(1856); Robinson v. Pitzer, 3 W. Va. 335 N. W. 779 (1889).
(1869); 5 Chamb., Ev., 3458, nn 3, 4. 53. Sullivan v. Hense. 2 Colo. 424 (1874).
46. Adams v. Hopkins, 144 Cal. 19, 77 Pac. 54. Stow v People. 25 III. 81 i!860) ; Peck
712 (1904) ; Swank v. Phillips, 113 Pa. 482, 6 v. Clark, 18 Tex. 239 (1857).
Atl 450 (1886) ; 5 Chamb., Ev., 3459, n. 1. 55. Lasher v. State, 30 Tex. App. 387, 17
47. Embree v. Emerson, 37 Ind. App. 16, S. W. 1064 (1891).
74 N. E. 44, 1110 (1905) ; Wendell v. Heim, 56. Einstein v. Holladay-Klotz Land & L.
87 Kan. 136, 123 Pac. 869 (1912) ; Clark v. Co., 132 Mo App. 82, 111 S. W. 859 (1908) ;
Clark, 47 N. Y. 664 (1872) ; Blaha v. Borg- 5 Chamb., Ev., 3460, n. 4.
man, 142 Wis. 43, 124 X. W. 1047 (1910) ; 5 57. Trowbridge v. Addoms, 23 Colo. 518, 48
Chamb., Ev., 3459, n. 2. Pac. 535 (1897); Strain v. Fitzgerald, 128
48. Delaney v. Errickson, 10 Neb. 492, 6 N. C 396, 38 S. E. 929 ( 1901 ) ; Davis v.
N. W. 600 (1880); Series v. Series, 35 Or. Seybold, 195 Fed. 402 (1912); 5 Chamb.,
289, 57 Pac. 634 (1899); 5 Chamb., Ev., Ev., 3460, n 5. If not so executed it is
3459, n. 3. not entitled to be recorded. Meskimen v. Day,
49. Weisbrod v. Chicago & N. W. R. Co., 21 35 Kan. 46. 10 Pac. 14 (1886). The act of
Wis. 602 (1867). the official in recording it must be considered
50. Belk v. Meagher, 104 U. S. 279, 26 L. an unofficial act. Stone breaker v. Short, 8
ed. 735 (1881). Pa. 155 (1848)
51. McBride v. Lowe, 175 Ala 408, 57 So. 58. Mullanphy Sav Bank v. Schott, 135
832 (1912); Patton v. Fox, 179 Mo. 525, 78 111. 655, 26 N. E. 640, 25 Am. St. Rep. 401
821 CONVEYANCES. 1084
The failure, however, of the register to sign the record, especially where the
statute does not require it, 59 the failure to affix the revenue stamp required by
the laws of the United States, 60 or generally mere clerical errors, 01 do not
affect the question of admissibility.
(1891); State v. Cole, 156 N. C. 618, 72 S. 60. Trowbridge v. Addoms, supra; Collins
E. 221 (1911) ; Midland Gas Co. v. Jefferson v. Vallean, 79 Iowa 626, 43 N. W. 284, 44 N.
County Gas Co., 237 Pa. 602, 85 Atl. 853 W. 904 (1889).
(1912); 5 Chamb., Ev., 3460, n. 8. 61. People v. Lyons, 168 111. App. 396
59. Wilt v. Cutler, 38 Mich. 189 (1878). (1912).
CHAPTER LIII.
COPIES AND TRANSCRIPTS; OFFICIAL REGISTERS, PAPERS AND WRITINGS.
Copies and transcripts; official registers, papers and writings, 1085.
mode of proof ; certified copies, 1086.
land office records, 1087.
ordinances, 1088.
records of private writings, 1089.
records of other states, 1090.
foreign records, 1091.
1085. Copies and Transcripts; Official Registers, Papers and Writings. 1
The method of proving the contents of records by use of the originals is seldom
used, proof by the use of copies or transcripts which have been duly and prop-
erly authenticated 2 being from an early date regarded with favor. :j The copy
or transcript which is offered in place of the original must be shown to the
satisfaction of the court to be a copy or transcript of a record made by one in
the performance of an official duty. 4 In so far as it may include any matter
which is not of this character and does not properly belong upon the record it
will be rejected. 5 It will also be required that it should be complete in respect
to the particular transaction which it purports to record 6 and not consist merely
of a copy of excerpts from the record ; 7 and that it be shown that the record of
which it purports to be a copy was in the custody of the officer certifying to
it. 8 The certificate should show that it is a copy of the original, and not of a
copy or transcript of it. 9 So a certified copy of a writ of error which contains
a recital of the record of an inferior court is not evidence of such record. 10
But where a cause has been removed of sent to one court from another and a
transcript of the latter court has become a part of the record of the former, a
certified copy thereof has been received. 11 And a copy of an officially certi-
fied copy has been received where the original has been destroyed. 12
1. 5 Chamberlayne, Evidence, 3461- 7. Letcher v. Bank, 134 Ky. 24, 119 S. W.
3465. 236 (1909).
2. Hammatt v. Emerson, 27 Me. 308, 46 8. Woods v. Banks, 14 N. H. 101 (1843).
Am. Dec. 598 (1847); American Life Ins & 9. Drumm v. Cessnum, 58 Kan. 331, 49
T. Co. v. Rosenagle, 77 Pa. 507 (1875); 5 Pac. 78 (1897); Handly v. Greene, 15 Barb.
Chamb., Ev., 3461, n 1. (N. Y.) 601 (1853) ; 5 Chamb., Ev., 3463,
3. Gray v. Davis, 27 Conn. 447 (1858); nn. 1, 2.
State v. Voigbt, 90 N. C. 741 (1884). 10. Betts v. New Hartford, 25 Conn. 180
4. State v. Dorris, 40 Conn. 145 (1873). (1856).
5. Hardiman v. Mayor of New York, 21 11. State v. Rayburn, 31 Mo. App. 385
App. Div. fi!4. 47 N. Y. Supp. 786 (1897) ; 5 (1888).
Chamb., Ev , 3462, n 2 12. Nash v. Williams, 20 Wall. (U. S.) 226,
6. Supra, 261; 1 Chamb., Ev., 506. 22 L. ed. 254 (1873).
822
823 COPIES. ' 108G
Mode of Proof; Statutory Provisions. The question as to the mode of proof
of the contents of public documents is, in a great majority of American juris-
dictions, controlled by statutes of a general character providing for the recep-
tion of duly certified or attested copies, covering to a great extent if not en-
tirely all cases in which proof of a public document or writing may be de-
sired. 13 This general statement applies also to the authentication of copies of
records, documents and papers in the various departments and public offices
of the national government which a party may desire to offer in evidence. 14
These statutes are not exclusionary of other modes of proof unless such an in-
tention is clearly apparent in the enactment. 15 Therefore an examined copy
is properly received, though a statute provides for the use of certified copies
unless the enactment is exclusionary of the former mode. 16 Similarly the orig-
inal writing is not excluded by reason of such a statute. 17
1086. [Copies] ; Mode of Proof; Certified Copies. 18 A doctrine which early
received the sanction of the English courts and later of some in the United
States, 19 was that certified copies were not admissible except where their re-
ception was enjoined or permitted by statute. This principle, however, was
as a general rule departed from in this country the United States Supreme
Court, in one of the earlier decisions, holding that " on general principles of
law a copy given by a public officer whose duty it is to keep the original ought
to be given in evidence." 20 At the present time this may be said to be the
established rule in the courts of the United States, 21 properly certified copies
or transcripts of records being received in evidence when given by public
officers who have been intrusted with the official custody of the records, 22 upon
the principle as variously expressed that when a public officer is bound to record
13. Hall v. Treadaway, 12 Ga. App. 492, 17. Harmening v. Howland, 25 N. D. 38.
77 S. E. 878 (1913) ; Ramsay v. People, 197 141 X. W. 131 (1913) ; 5 Chamb., Ev., 3465,
111. 594, 64 X. E. 555 (1902) -. Com. v. Hay- n. 3.
den. 163 Mass. 453, 40 X. E. 846 (1895); 18. 5 Chamberlayne, Evidence, 3464-
Hoffman v. Metropolitan Life Ins. Co.. 135 3474.
App. Div. 739, 119 X. Y. Supp. 978 (1909) ; 19. Francis v. Xewark, 58 X. J. 522, 33 Atl.
Emmitt v. Lee, 50 Ohio St. 662, 35 N. E. 794 853 (1896) ; Sykes v. Beck, 12 X. D. 242, 96
(1898) ; 5 Chamb., Ev., 3464, n. 1. X. W. 844 (1903) ; 5 Chamb., Ev., 3466, n.
14. Tapley v. Martin, 116 Mass. 275 1.
(1874) ; Shelton v. St. Louis & S. F. R. Co., 20. United States v. Percheman, 7 Pet. (U.
131 Mo. App. 560, 110 S. W. 627 (1908); S.) 51, 8 L. ed. 604 (1833).
Oakes v. U. S., 174 U. S. 778, 19 S. Ct. 864, 21. Cannon v. Gorham, 136 Ga. 167, 71 S.
43 L. ed. 1169 (1899) ; 5 Chamb., Ev., 3464. E. 142 (1911) ; Gage v. Chicago, 225 111. 218,
n. 2. Such statutes must be understood and 80 X. E. 127 (1907) ; Knotts v. Zeigler, 58
interpreted by the same rules that govern at Ind. App. 503, 106 X. E. 393 (1914) ; State v.
common law. Block v. U. S., 7 Ct. Cl. (U.S.) Austin, 113 Mo. 538, 21 S. W. 31 (1892);
406 (1871). Cortlett v. Pacific Ins. Co.. 1 Wend. (X. Y.)
15. Southern R. Co. v. Wilcox, 99 Va.. 561 (1828): Hibbard v. Craycraft. 32 Okl.
394, 39 S. E. 144 (1901); supra. 1051, 160. 121 Pac. 198 (1912); U. S. v. Brelin.
1059; 5 Chamb., Ev., 3357, 3370. 166 Fed. 104, 92 C. C. A. SS (1008); 5
16. Smithers v. Lowrance, 35 Tex. Civ. App. Chamb . Ev., 3466. n. 3.
25, 79 S. W. 1088 (1904). 22. Moore v. Gaus & Sons Mfg. Co., 113 Mo.
1086 COPIES AND TKANSCRIFTS. 824
a fact, a copy of the record of it duly authenticated is competent evidence ; 2S
that the record cannot or should not be taken from his custody, 24 and the in-
convenience attending removal. 25 Where the statute in respect to the record
is unconstitutional, it follows that the record is not an official one and there-
fore a certified copy is not competent evidence of anything, 26 even though it
may have been authenticated according to statute.
Who May Certify. The certificate must be certified by one having au-
thority to so act, 27 ordinarily the legal custodian of the record, 28 the certificate
of one who is unauthorized being of no avail. 20 Therefore in the absence of
any showing upon the face of the certificate that it is certified by one having
authority to so act it will be rejected. 3 " The certificate may specify the par-
ticular record from which the transcript is taken. 31 A certificate signed by an
official is sufficient where it identifies him as the one who acts in the required
capacity and as such has custody of the official records, a copy from which is
offered, 32 or where the certificate contains a recital of such custody and is
signed with the proper official designation. 33 And where a copy is authen-
ticated by the signature and seal of the official purporting to make it no further
verification is necessary as it could give no greater weight to copies so at-
tested. 34 In the absence of any mode being prescribed a certification by sig-
nature which is irregular has been admitted. 35
Limitations on Power. Unless it is permitted by statute, 36 the authority of
an official to certify to a copy of a record carries with it no power to state his
opinion or conclusion as to what is disclosed by the record or what its legal
import or effect is. 37 That is a matter for the determination of the court from
98, 20 S. W. 975 (1892) ; People v. Gray, 25 709, 23 Pac. 938 (1890) ; Woods v. Banks, 14
Wend (N. Y.) 465 (1841) ; 5 Chamb., Ev., N. H. 101 (1843) ; 5 Chamb., Ev., 3468, n 2.
3466, n. 4 29. Northern Pac. Terminal Co. v. Portland,
23. Herendeen v. DeWitt, 49 Hun 53, 1 14 Or, 24, 13 Pac. 705 (1886).
N. Y. Supp 467 (1888) 30. Citizens' State Bank v. Bonnes, 76
24. People v. Williams, 64 Cal. 87, 27 Pac. Minn 45, 78 N. W. 875 (1899).
939 (1883); Bell v. Kendrick, 25 Fla. 778, 31. Mansfield v. Johnson, 51 Fla. 239, 40
6' So. 868 (1889) So. 196 (1906).
25. Simmons v Spratt, 20 Fla. 495 (1884) ; 32. Anderson v. Blair, 121 Ga. 120, 48 S. E.
Peck v. Farrington, 9 Wend (N. Y.) 44 951 (1904).
(1832) The certification of copies may in 33. Galvin v. Palmer, 113 Cal. 46, 45 Pac.
some cases be compelled by mandamus State 172 (1896): Bixby v. Carskaddon. 55 Iowa
v. Circuit Court, 20 S. D. 122, 104 N. W. 533, 8 N. W. 354 (1881); 5 Chamb., Ev.,
1048 (1905). 3469, n. 2.
26. State v Winbauer, 2] N. D. 70, 128 N. 34, Surget v. Newman, 43 La Ann. 873, 9
W. 679 (1910); 5 Chamb., Ev , 3467. So. 561 (1891); Com. v. Chase, 6 Gush.
27. McAfee v Flanders, 138 Ga 403, 75 S. (Mass.) 248 (1850).
E 319 (1912) : Rich v Lancaster R. Co, 114 35. Cooper v. Nelson, 38 Iowa 440 (1874).
Mass 514 (1874) ; St. Louis v Blast Furnace 36. Doe v. Rowe, 16 Ga 521 (1854) ; Peo-
Co., 235 Mo. 1, 138 S. W. 641 (1911); 5 pie v. Willi, 147 111. App. 207 (1909).
Chamb., Ev.. 3468. n, 1. 37. McMillan v Savannah Guano Co., 133
28. Tifft v Greene, 211 111 389, 71 N. E Ga. 760, 66 S E. 943 (1909) ; People v. Lee,
1030 (1904); Bergman v. Bullitt, 43 Kan 112 111. 113 (1885); Com. v. Richardson, 142
825
COPIES.
1086
an inspection either of the record itself or of a true copy thereof, 38 and the
presiding judge may insist that such official shall confine himself to an exercise
of the authority conferred, viz. : the making of a copy of that which the record
contains. 39 Similarly a certificate by a public official of the non-existence of
a fact upon the record has been rejected. 40 An official certifying to a copy of
a record is limited in his powers to the certification of matters which properly
appear of record and can not certify as to an entry which does not belong
there, 41 nor as to any matters which are not properly upon the record. 42 Sim-
ilarly, unless the writing or record is one authorized by law to be made either
expressly or as an act in the performance of the necessary duties of the office, it
does not come within the principle relating to official records and therefore a
certified copy is no evidence in regard thereto. 43 It will only be received
where the original, if produced, is competent evidence. 44
Mode and Sufficiency of Authentication. The court will require that a
copy of a record shall be duly and properly authenticated 45 before it will be
received in evidence. It will be required, independent of any statute, in all
cases that the paper offered as a copy is in fact that which it purports to be.
The words " true copy " or " correct copy " are frequently used. The official
Mass. 71, 7 N. E. 26 (1886) ; Wood v. Knapp,
100 N. Y. 109, 2 N. E. 632 (1885) ; State v.
Gottlieb, 21 N. D. 179, 129 X. W. 460 (1910) ;
5 Chamb., Ev., 3470, n. 2.
38. French v: Ladd, 57 Miss. 678 (1880);
McGuire v. Sayward, 22 Me. 230 (1842)
39. Greer v. Fergerson, 104 Ga. 552, 30 S. E
943 (1898) ; Chicago v. English, 80 111 App.
163 (1898).
Instances. The courts have rejected cer-
tificates of a compliance with the provisions
of the law in respect to becoming a corpora-
tion, Boyle v. Trustees, etc., of M. E Church,
46 Md. 359 (1876) ; of the issuance of a cer
tificate of incorporation. Wall v. Bridget
Mines, 130 Cal. 27, 62 Pac. 386 (1900) ; that
a grant from the state was genuine. Walker v.
Logan, 75 Ga. 759 ( 1885 1 ; of the death of
a prisoner, Gill v Phillips, 6 Mart X. S.
(La ) 298 (1827); of the granting of a de-
cree of divorce, Jay v. East Livermore, 56
Me. 107 (1868) ; of the issuance of a patent.
Davis v. Gray, 17 Ohio St. 331 (1867); of
the filing of proofs of heirship and certificate
in the adjutant-general's office, Byers Bros,
v Wallace, 87 Tex. 503, 29 S. W 760 I 1895) ;
of the amount of taxable property in a county
and the amount of poll and county taxes for a
year, Tinsley v. Rusk County, 42 Tex. 40
(1875) : of the assessment or non-assessment
of a person or his property in the assessor's
book, Bartlett v. Patton, 33 W. Va. 71, 10
S. E. 21 (1889); that land was regularly
listed for taxation, Dunn v. Games, 1 McLean
(U. S.) 321 (1838), aff'd 14 Pet. 322, 10
L. ed. 476 (1840); and of the appointment
of a certain person as receiver. Hudkins v.
Bush, 69 W. Va. 194, 71 S. E. 106 (1911);
5 Chamb., Ev., 3471.
40. Boyd v. Chicago, etc., R. Co., 103 111.
App. 199 (1902); Chicago, etc., R. Co. v.
Vance, 64 Kan. 684, 68 Pac. 606 (1902) ; Pon-
tier v. State, 107 Md 384, 68 Atl. 1059
(1908) ; 5 Chamb., Ev., 3470, n. 5.
41. Daggett v. Bonewitz, 107 Ind. 276, 7
N. E. 900 (1886).
42. Farmers' & Mechanics' Bank v. Bron-
son, 14 Mich. 361 (1866).
43. Com. v. O'Bryan, 153 Ky 406, 155 S.
W 1126 (1913); Southwestern Surety Ins.
Co. v. Anderson (Tex. 1913), 155 S. W 1176;
Cruse v. McCauley, 96 Fed. 369 (1899); 5
Chamb . Ev., 3472, n. 3.
44. Donohue v. Whitney. 133 X. Y. 178, 30
X. E S48 (1892) ; State v. Wells Adm'r.. 11
Ohio 261 (1842) ; 5 Chamb., Ev., 3472, nn
5, 6, 7.
45. Weaver v. Tuten, 138 Ga 101, 74 S. E.
835 (1912); Brecker v. Fillingham. 209 Mo.
578. 108 S. W 41 (1907): Lee v. Sterling
Silk Mfg Co., 134 App. Dtv. 123, 118 X. Y.
Supp. 852 (1909); 5 Chamb., Ev., 3473, n.
1.
1087 COPIES AND TRANSCRIPTS. 826
certifies to the transcript as a copy of the record and this necessarily implies
that it is correct, else it cannot be a copy. 46 In case there is a statute con-
trolling, which prescribes a mode of authenticating such copies, the certificate
should show a compliance therewith, 47 as where it is required that a seal shall
be affixed, 48 otherwise the presiding judge will refuse to admit it. If it con-
tains, however, in substance what the law requires it is sufficient and will be
received. 49 Where it is provided that the certificate of a public officer shall
be evidence, a paper produced with his name has been received as evidence,
prima facie 50 unless the name is proved not to have been signed by him. 61
In some cases it is required by statute that the certificate shall state that the
copy has been compared, by the person making it, with the original and that
it is a correct transcript thereof. 52 Compliance with such a provision is essen-
tial. A mere statement that it " has been compared,'' without stating by
whom is not sufficient. 53 " As compared by me '' has, however, been held to
be a compliance with the law. 54
1087. [Copies] ; Land Office Kecords. 05 Ordinarily the rule prevails that
independent of statute, which in some cases expressly authorizes the admis-
sion in evidence of authenticated copies of land office records, 56 including
patents and grants, 57 courts will receive in evidence properly authenticated
copies of such records, 58 including those of grants and other instruments of a
like character, issued by the State to the individual 59 without requiring the
46. Com. v. Quigley, 170 Mass. 14, 48 X. E. 54. Huntoon v O'Brien, 79 Mich. 227, 44 N.
782 (1897) ; Robinson v. Lowe, 50 W. Va. 75, W. 601 (1890).
40 S. E. 454 ( 1901 ) . 55. 5 Chamberlayne, Evidence, 3475-
47. Knotts v. Zeigler, 58 Ind App. 503, 3477.
106 N. E. 393 (1914); Redford v. Snow, 46 56. Stinson v. Geer, 42 Kan. 520, 22 Pac.
Hun 370, 12 X. Y. St. Rep. 323 (1887) ; Sykes 586 (1889); Stephens v. Macey, 49 Mont.
v. Beck, 12 X. D. 242, 96 X. W. 844 (1903) ; 230, 141 Pac. 649 I 1914) ; Richards v. Hitter
5 Chamb., Ev., 3474, n. 1. Lumber Co., 158 X. C 54, 73 S. E. 485
48. Chambers v. Jones, 17 Mont. 156, 42 (1911) ; 5 Chamb., Ev., 3475, n. 2.
Pac. 758 (1895) ; Xew York v. Vanderveer, 57. Beasley v. Clarke, 102 Ala. 254, 14 So.
91 App. Div. 303, 86 X. Y. Supp. 659 (1904) ; 744 (1893) ; Eltzroth v. Ryan, 89 Cal 135,
State v. Railroad, 141 X. C. 846, 54 S. E. 26 Pac. 647 (1891); Xitche'v. Earle, 117 Ind.
294 (1906); 5 Chamb., Ev., 3474, n. 2. 270, 19 X. E. 749 (1888:) 5 Chamb., Ev.
49. Turner v. Davis, 186 Ala. 77, 64 So. 3475, n. 3.
958 (1914); Wright v. Glos, 264 111.201.106 58. Chilton v. Xickey, 261 Mo. 232. 169
X. E. 200 (1914); People v. Tobey, 153 X. S. W. 978 (1914): Anderson v. Keim, 10
Y. 381, 47 X. E. 800 (1897); 5 Chamb., Ev., Watts (Pa.) 251 (1840): Kirby v. Hayden,
3474, n. 3. 44 Tex. Civ. App. 207, 99 S. W. 746 (1906) :
50. Willard v. Pike, 59 Vt. 202, 9 Atl. 5 Chamb., Ev., 3475, n. 4.
907 (1886) ; Usher's Heirs v. Pride, 15 Gratt. 59. Reppard v. Warren, 103 Ga. 198, 29 S.
(Va.) 190 (1858). E. 817 (1897): Lane v. Bommelmann, 17 Til.
51. Prather v. Johnson, 3 Harr. & J. (Md.) 95 (1855) : Xew York Cent. & H. R. Co. v.
487 (1814). Brockway Brick Co., 10 App. Div. 387, 41
52. Redford v. Snow, 46 Hun (X. Y.) 370 X. Y. Supp. 762 (1896); 5 Chamb., Ev.,
(1887). 3475, n. 5.
53. Stevens v. Sup'rs of Clark County, 43
Wis. 63 (1877).
827 LAND OFFICE RECORDS. 1087
proponent to account for the original, 00 they being received upon the general
priciples of evidence relating to proof of public records at common law, 01
though in some cases it is held that they are not admissible without accounting
for the non-production of the originals. 02 In much the same way properly
authenticated copies of maps and surveys have L* --n received in some cases
under the express provisions of a statute, 03 and in others independent thereof. 64
Similarly a certified copy of the assignment of a land office certificate or other
similar instrument when recorded will be received. 65
Official Letters. Certified copies of letters on file at the general land office
constitute a part of the record where they relate to the business of the office
and ordinarily under express statutory provisions will be received in evidence,
including both letters sent to the commissioner 66 and those mailed from the
office, 67 the latter having been preserved in the usual way as by taking an im-
print. 68
Administrative Requirements. A copy of a land office record must be
properly and sufficiently authenticated, 69 otherwise it will be rejected. 70 Pri-
vate or other papers not required or authorized to be filed in a land office are
not susceptible of proof by a certified copy from that office; 71 the certificate,
so far as copies of papers are concerned, must be as to those properly on file
there. 72 The certificate must state the facts as they appear upon the record
and not the conclusion of the official certifying as to what the record contains
or as to its legal effect or import. 73 A copy of extracts from the record has
been received where it is complete in so far as it applies to the particular mat-
ter in litigation, 74 such authentication also being according to the practice of
the department. 75
60. Beasley v. Clarke, supra; Bernstein v. Pac. 104 (1886); Hibbard v. Craycraft, 32
Smith, 10 Kan. 60 (1872); Avery v. Adams, Okl. 160, 121 Pac. 198 (1912).
69 Mo. 603 (1879) ; 5 Chamb., Ev., 3475, n. 67. Holmes v. State, 108 Ala. 24, 18 So.
6. 259 (1895); Trimble v. Burroughs, 41 Tex.
61. Wyman v. City of Chicago, 254 111. 202, Civ. App. 554, 95 S. W. 614 (1906) ; 5 Chamb.,
98 X. E. 266 (1912) ; New York Cent. & H. R. Ev., 3476, n. 2.
Co. v. Brookway Brick Co., supra; McGarra- 68. McKee v. West, 55 Tex. Civ. App. 460,
han v. Mining Co., 96 U. S. 316, 24 L. ed. 630 118 S. W. 1135 (1909).
{1877) ; 5 Chamb., Ev., 3475, n. 7. 69. Beasley v. Clarke, supra; Wilson v.
62. Hensley v. Tarpey, 7 Cal. 288 (1857) ; Hoffman, 54 Mich. 246, 20 N. W. 37 (1884) ;
Covington v. Berry, 76 Ark. 460, 88 S. W. 5 Chamb., Ev., 3477, n. 1.
1005 (1905); 5 Chamb., Ev., 3475, n. 8. 70. Htils v. Buntin, 47 111. 396 (1868); 5
63. Wood v. Xortman, 85 Mo. 298 (1884) ; Chamb., Ev., 3477, n. 2.
Sullivan v. Solis, 52 Tex. Civ. App. 464. 114 71. Rogers v. Pettus, 80 Tex. 425, 15 S.
S. W. 456 (1908) ; 5 Chamb., Ev., 3475, n. 9. W. 1093 (1891) ; 5 Chamb., Ev., 3477, n. 3.
64. Goodwin v. McCabe, 75 Cal. 584, 17 Pac. 72. Hatchett v. Conner, 30 Tex. 104 (1867).
705 (1888) ; Dewey v. Campau, 4 Mich. 565 73. Byers v. Wallace, 87 Tex. 503 (1895).
(1857); 5 Chamb., Ev., 3475, n. 10. 74. Strickland v. Draughan, 88 X. C. 315
65. Bell v. Kendrick, 25 Fla. 778. 6 So. 868 (1883) ; Jennings v. McDowell, 25 Pa. 387
41889) ; Clark v. Hall, 19 Mich. 356 (1869). (1855) : 5 Chamb., Ev.. 3477, n. 7.
66. Darcy v. McCarthy, 35 Kan. 722, 12 75. Tillotson v. Webber, 96 Mich. 144, 55
N. W. 837 (1893).
1088, 1089 COPIES AND TRANSCRIPTS. 828
1088. [Copies] ; Ordinances. 76 The principle that public records may,
independent of statute, be proved by copies thereof certified by the officer hav-
ing such records in charge, 77 applies in the case of municipal ordinances. 78
By statute also provision of this character is frequently made, such as that a
copy may be admissible when certified by the city or village clerk 79 or the
recorder of the town, 80 register 81 or other designated official, in some cases
also the corporate seal is required. 82 The non-existence of any fact of record
can not, however, be established by such a certificate. 83
1089. [Copies] ; Records of Private Writings. 84 There is, apparently, con-
siderable authority for the rule that, independent of statute, the copy of the
record of a private writing will be received in evidence. 85 It would seem that
the qualification should at least be imposed that the enrollment of the original
upon the record is a necessary requirement. 80 A certified copy of the record
of such a writing is also admissible on proof that the original has been lost or
destroyed, 87 or upon proof that it is outside of the jurisdiction of the court
and beyond process to produce, 88 or that the other party to the suit is in pos-
session of the instrument and refuses to produce it. 89
Early Established Rules in New England States. In some jurisdictions
the rule requiring the production of the original is regarded as applying only to
a case where it is necessary to prove a conveyance directly to the party in the
suit, and which may reasonably be supposed to be in his possession, and not to
include prior deeds in a chain of title. 90 In Connecticut and Massachusetts
the rule seems to have been early established that duly certified copies of deeds
from the records in the line of title, made and, recorded by strangers to the
suit, are admissible without other evidence of their execution and delivery or
of any excuse for the non-production of the original deed. 91 The relaxation of
76. 5 Chamberlayne, Evidence, 3478. 86. Kelsey v. Hanmer, 18 Conn. 311
77. Supra, 1086; 5 Chamb., Ev., 3468. (1847) ; Warner v. Hardy, 6 Md. 525 (1854) ;
78. Florida Cent., etc., Ry. Co. v. Seymour, Van Riper v. Morton, 61 Mo. App. 440
.44 Fla. 557, 33 So. 424 (1902). (1895); 5 Chamb., Ev., 3479, n. 2
79. Boyd v. Chicago, etc., R. Co., 103 111. 87. Hayden v Mitchell, 10.3 Ga. 431, 30 S.
App. 199 (1902); Com. v. Chase, 6 Cush. E. 287 (1897); Lancaster v. Lee, 71 S. C.
(Mass.) 248 (1850); 5 Chamb., Ev., 3478, n. 280, 51 S. E. 139 (1904); 5 Chamb., Ev.,
3. 3479, n. 3.
80. Bayard v. Baker, 76 Iowa 220, 40 N. W. 88. Halsey v. Fanning, 2 Root (Conn.) 101
818 (1888). (1794).
81. St. Louis v. Foster, 52 Mo. 513 (1873). 89. Sally v. Gunter, 13 Rich. (S. C.) 72
82. Georgia Cent. R. Co. v. Bond, 111 Ga. (1860).
13, 36 S. E. 299 (1900) ; Logue v. Gillick, 1 90. Kelsey v. Hanmer, supra; Holman v.
E. D. Smith (N. Y.) 398 (1852). Lewis, 107 Me. .28, 76 Atl. 956 (1910); Egan
83. Boyd v. Chicago, etc., R. Co., supra. v. Horrigan, 96 Me. 46, 51 Atl. 246 (1901).
84. 5 Chamberlayne, Evidence, 3479- 91. Colchester Sav. Bank v. Brown, 75
3485. Conn. 69, 52 Atl. 316 (1902); Frazee v.
85. Jones v. Marks, 47 Cal. 242 (1874); Nelson, 179 Mass. 456, 61 X. E. 40, 88 Am.
Ricker v. Joy, 72 Me. 106 (1881) ; 5 Chamb., St. Rep. 391 ( 1901) ; 5 Chamb., Ev., 3480, n.
Ev., 3479, n. 1. 2.
829 PRIVATE WEITIXGS. 1089
the common law rule in England was, however, held to be subject to the
limitation that the instrument must be one which was required by law to be
recorded in order to render a copy admissible. 92 In Maine it was also early
provided by rule of court that office copies of deeds pertinent to the issue,
might be read in evidence without proof of the execution of the deeds " in all
actions touching the realty " by one not a party to the deed, nor claiming as
heir, nor justifying as servant of the grantee or of his heirs. 93 This subse-
quently was enacted, in substantially the same form, into statute. 94 The rule
referred to in these jurisdictions does not permit of the introduction of a copy
of the record where the original deed is presumed to be in the possession of
the adverse party. In such a case a copy will be excluded in the absence of
evidence of notice to such party to produce the original. 95
Statutory Regulation. The question as to the admissibility of copies of
records of private writings is now almost, if not entirely, .controlled by legisla-
tive enactments. By statute in some states it is provided that a certified copy
of a paper filed or recorded pursuant to law in a public office of the State may
be received in evidence the same as the original. 96 More especially has this
legislation been directed towards records of writings conveying or affecting
some interest in real property such as deeds, 97 mortgages, 98 and the like, 99
though in some jurisdictions the statutes are inclusive of copies of private
writings such as bills of sale, 1 chattel mortgages, 2 written consent of husband
that wife may act as feme sole trader, 3 liquor dealers' bond 4 and of bond filed
with the State insurance commissioner. 5 Under the statute in many jurisdic-
tions a copy of the record of a private writing will be received when the orig-
inal has been lost or is not withing the custody or control of the proponent or
within his power to produce, 6 as where he is unable to produce it because of the
92. Kelsey v. Hanmer, supra. 98. Chase v. Caryl, 57 X. J. L. 545, 31 Atl.
93. Hutchinson v. Chadbourne, 35 Me. 189 1024 (1895) : Bruce v. Wanzer, 20 S. D. 277,
(1853). 105 N. W. 282 (1905).
94. Holman v. Lewis, 107 Me. 28, 76 Atl. 99. Kramer v. Settle, 1 Ida. 485 (1873);
956 (1910) ; 5 Chamb., Ev., 3480, n. 5. Lerche v. Brasher, 104 N. Y. 157, 10 X. E. 58
The rule first referred to is based upon the (1887).
system in these jurisdictions relating to con- 1. Merchants' Xav. Co. v. Amsden, 25 111.
veyancing as modified by the local registry 'App. 307 (1888); Polykranas v. Krausz,
laws. Com. v. Emery, 2 Gray (Mass) 80 supra.
(1854). 2. Van Dervort v. Vye, 85 Minn. 35, 88 N.
95. Draper v. Hatfield, 124 Mass. 53 W. 2 (1901); Van Hassell v. Borden, 1 Hilt.
(1878) ; Homer.v. Cilley, 14 X. H. 85 (1843) ; (X. Y.) 128 (1856) ; 5 Chamb., Ev., 3481, n.
5 Chamb., Ev., 3480, nn. 8, 9. 6.
96. Polykranas v. Krausz, 73 App. Div. 3. Schwartz v. Baird, 100 Ala. 154, 13 So.
583, 77 X. Y. Supp. 46 (1902). 947 '1893).
97. Brown v. White, 153 Ky. 452. 156 S. 4. Bulger v. Prenica, 93 Xeb. 697, 142 X.
W. 96 (1913): Sudlow v Warshing, 108 X. W. 117 (1913).
Y. 520. 15 X. E. 532 (1888): Livingston v. 5. Southwestern Surety Ins. Co. v. Ander-
McDonald, 9 Ohio 168 (1839): Pardee- v. son (Tex. Civ. App. 1913), 152 S. W. 816.
Johnston, 70 W. Va. 347, 74 S. E. 721 (1912); 6. Sims v. Seheussler, 2 Ga. App. 466. 58
5 Chamb., Ev., 3481, n. 2. S. E. 693 (1907) ; Eby v. Winters, 51 Kan.
1089
COPIES AND TEANSCKIPTS.
830
refusal of the one in possession to surrender it after notice, 7 in which, case he
must establish, to the satisfaction of the presiding judge, 8 the existence of such
facts as will authorize the admission of a copy. 9 In some cases the statute
requires that it must be satisfactorily shown both that the party not only has
not possession of the original, but also has not control of it. 10
Administrative Requirements. It is, as a general rule, essential that the
original must have been one the recording of which the law .required or author-
ized; n otherwise, neither the record nor a copy thereof will be received as
evidence. 12 It must also have been recorded by an officer having authority for
that purpose. 13 But where the original is shown to have been lost a copy of
the record may properly be received. 14 It is also essential that it be recorded
within the time prescribed by law. 15 But where a deed or other instrument
required to be recorded has been lost, a copy of the record has been received
in evidence, 16 likewise a certified copy of the deed as it is shown by the record. 17
" It is a well established proposition of law that the record must be made upon
the evidence of execution required by the statute to entitle a certified copy to
be used as evidence in lieu of the original." 18 Thus in the case of a deed, l ' J
if it is not properly executed, proved or acknowledged, as required, it does not
become effective so as to render the record of it admissible in evidence. Sim-
ilarly in the case of a mortgage 20 and other private writings, 21 or in case of a
777, 33 Pac. 471 (1893) ; Cazier v. Hinchey,
143 Mo. 203, 44 S. W. 1052 (1897) ; 5 Chamb.,
Ev., 3481, n. 10.
7. Foxworth v. Brown, 120 Ala. 59, 24 So.
1 (1897).
8. Hayden v. Mitchell, supra; Freeman v.
Wm. M. Rice Institute (Tex. Civ. App. 1910),
128 S. W. 629.
9. Cox v. McDonald, 118 Ga. 414, 45 S. E.
401 (1903); Hope v. Blair, 105 Mo. 85, 16
S. W. 595 (1891) ; Williamson v. Work (Tex.
Civ. App. 1903), 77 S. W. 266; 5 Chamb.,
Ev., 3481, n. 13.
10. Hammond v. Blue, 132 Ala. 337, 31 So.
357 (1901); Bell v. Kendrick, 25 Fla. 778, 6
So. 868 (1889).
11. Flint River Lumber Co. v. Smith, 134
Ga 627, 68 S. E. 436 (1910) ; Com v. Merrill,
215 Mass. 204, 102 N. E. 446 (1913) -, Hoskin-
son v. Adkins, 77 Mo. 537 (1883) ; Goodman
v. Greenberg, 103 N. Y. Supp. 779, 53 Misc.
583 (1907); Montgomery v. Seaboard Air
Line Ry., 73 S. C. 503, 53 S. E. 987 (1905) ;
5 Chamb., Ev., 3482, n. 1.
12. Board of Com'rs of Lake County v.
Keene Five-Cents Sav. Bank, 108 Fed. 505,
47 C. C. A. 464 (1901).
13. Smith v. Bannan, 13 Cal. 107 (1859) ;
Simpaon v. Loving, 3 Bush. (Ky.) 458, 96
Am. Dec. 252 (1867); Olcott v. Bynum, 17
Wall. (U. S.) 44, 21 L. ed. 570- (1872).
14. Webster v. Harris, 16 Ohio 490 (1847)
15. Keller v. Moore, 51 Ala. 340 (1874);
Jones v. Crowley, 57 N. ,1. L. 222, 30 Atl.
871 (1894). Compare Reorganized Church of
Jesus Christ of L. D. S. v. Church of Christ,
60 Fed. 937 (1894); Hall v. Rea, 85 Kan.
675, 118 Pac. 693 (1911).
16. Lancaster v. Lee, 71 S. C. 280, 51 S. E.
139 (1904).
17. Stebbins v. Duncan, 108 U. S. 32, 2 S.
Ct. 313, 27 L. ed. 641 (1882).
18. Kendrick v. Latham, 25 Fla. 819, 6 So.
871 (1889).
19. Turner v. Xeisler, 141 Ga. 27, 80 S. E.
461 (1914); Musick v. Barney, 49 Mo. 458
(1872): Blackmail v. Riley. 63 Hun 521, 18
X. Y. Supp. 476 (1892); Johnston's Lessee
v. Haines, 2 Ohio 55. 15 Am. Dec. 533 (1825) ;
5 Chamb., Ev., 3483. n. 2.
20. Foxworth v. Brown, 114 Ala. 299, 21
So. 413 (1896); Starnes v. Allen. 151 Ind.
108, 45 X. E. 330, 51 X. E. 78 (1898).
21. Hunt v. Selleck, 118 Mo. 588. 24 S. W.
213 (1893) (title bond) : Cobb v. Dunlevie. 63
W. Va. 398, 60 S. E. 384 (1908) (contract) ;
5 Chamb.. Ev., 3483, n. 4.
831 EECOEDS OF OTHER STATES. 1090
will. 22 In some jurisdictions, however, the ride prevails that after a lapse of
a certain number of years it will be presumed that a deed recorded in the
proper office was legally proved or acknowledged and that a certified copy of
the record will in such a case be received. 23
Where a deed purports to be signed and sealed by the grantor a certified
copy thereof has been received, though there was no representation of a seal
thereof. 24 And though no written scroll or seal is copied into the record, yet
where the record copy offered in evidence contains the statement of the official
by whom the acknowledgment was taken that he has affixed his seal thereto, it
will be presumed that it was attached. 25 Similarly, though the official seal of
the officer taking the acknowledgment does not appear on the copy, yet the
latter has been admitted where an inspection thereof shows that it was affixed
to the original instrument as where the official certifies to the fact that it was
acknowledged before a notary public who affixed his seal thereto. 26
In order to render a copy of the record of an instrument admissible it must
have been recorded at a place designated or authorized by law for the recording
of such writings. 27 In case of a deed, mortgage or other writing affecting
realty, the instrument should be recorded in the registry district, ordinarily
the county, in which the land is located. 28 In some jurisdictions, though
there is authority to the contrary, 29 where a deed conveying land situated in
two counties is recorded in only one of them, a copy of the record thereof has
been received in the courts of the other ; 30 in some States its admission being
limited to those cases where loss of the original has been established. 31
1090. [Copies] ; Records of Other States. 32 It is provided by the Consti-
tution of the United States that " Full faith and credit shall be given in each
State to the public acts, records and judicial proceedings of every other State ;
and the Congress may by general laws prescribe the manner in which such acts,
records and proceedings shall be proved and the effect thereof." 33 In con-
formity with this provision, it was provided by an act of Congress, passed in
1804, that " All records and exemplifications of books which may be kept in
any public office of any State or territory or of any country subject to the
jurisdiction of the United States, not appertaining to a court, shall be proved
22. Hood v. Mathers, 2 A. K. Marsh. (Ky.) E. 218 (1909) ; Cole v. Ward, 79 S. C. 573,
553 (1820). 61 S. E. 108 (1907) ; 5 Chamb., Ev., 3485, n.
23. White v. Hutching 40 Ala. 253, 88 2.
Am. Dec. 766 (1866); Robidoux v. Cassilei, 29. Garbutt Lumber Co. v. Grass Lumber
10 Mo. App. 516 (1881). Co., Ill Ga. 821, 35 S. E. 686 (1900).
24. McCoy v. Cassidy, 96 Mo. 429, 9 S. W. 30. Wheeler v. Winn, 53 Pa. 122, 91 Am.
926 (1888); Williams v. Bass. 22 Vt. 352 Dec. 186 (1866).
(1850) ; 5 Chamb., Ev., 3484, n. 1. 31. Jackson v. Rice, 3 Wend. (N. Y.) 180,
25. Addis v. Graham, 88 Mo. 197 (1885). 20 Am. Dec. 683 (1829) ; 5 Chamb., Ev.,
26. Davis v. Seybold, 195 Fed. 402 (1912). 3485. n. 6.
See also Hubbard v. Dry Goods Co.. 209 Mo. 32. 5 Chamberlayne, Evidence, 3486-
495. 108 S. W. 15 (1907). 3488.
27. Townsen v. Wilson. 9 Pa. 270 (1848). 33. 1, Art. 4.
28. Pepper v. James, 7 Ga. App. 518, 67 S.
1090 COPIES AND TRANSCRIPTS. 832
or admitted in any court of office in any other State or territory or in any such
country by the attestation of the keeper of said records or books and the seal
of his office annexed, if there be a seal, together with a certificate of the pre-
siding justice of the court of the county, parish or district in which such office
may be kept, or of the Governor or Secretary of State, the chancellor or keeper
of the great seal of the State or territory or county that the said attestation is
in due form, and by the proper officers. If the said certificate is given by the
presiding justice of a court, it shall be further authenticated by the clerk or
prothonotary of the said court, who shall certify under his hand and the seal
of his office, that the said presiding justice is duly commissioned and qualified,
or if given by such Governor, Secretary, chancellor or keeper of the great seal,
it shall be under the great seal of the State, territory or country aforesaid in
which it is made." 34 In the absence of any legislation by the State relating
to proof of records of another State by a copy, this enactment is said to be bind-
ing upon its courts, at least to the extent of defining the evidentiary value of
a copy as proof, 35 and a party who seeks to prove a record in the mode thus
provided should comply with the terms of the statute. 36 Under this act the
force and affect of the record is limited to that which it had in the State where
made and if not admissible in that State a certified copy thereof will not be
received in the courts of another State. 37 The record must have been author-
ized under the laws of the State where made to render a copy admissible. 38
The certificate of the Secretary of State that the attestation is in due form
and by the proper officer is sufficient, it not being necessary under the act that
the certificate of a presiding justice should also be affixed. 39 The federal act
is not exclusive of legislation by the State, a statute of which providing for a
mode of authenticating such documents may be followed. 40 So a certified
copy will be received though it is not in all cases conclusive. 41 It is essential
that the proponent should establish the fact of the relevancy of a copy of such
a record as a prerequisite to admission. 42 On the other hand it is only essen-
tial that such part of the record or document should be certified to as is
relevant. 43
34. U. S. Comp. Stats. 1901, p. 677, 905. 38. Dixon v. Thatcher, 14 Ark. 141 (1853) ;
35. Witt v. State, 5 Ala. App. 137, 59 So. Florscheim v. Fry, 109 Mo. App. 487, 84 S. W.
715 (1912) ; New York, etc., Ry. Co. v. Lind, 1023 (1904) ; 5 Chamb., Ev., 3486, n. 6.
180 Ind. 38, 102 N. E. 449 (1913) ; 5 Chamb., 39. Reid v. State, 168 Ala. 118, 53 So. 254
Ev., 3486, n. 3. (1910).
36. Taylor v. McKee, 118 Ga. 874, 45 S. 40. Harmening v. Rowland, 25 X. D 38,
E 672 (1903); State v. Allen, 113 La. 705, 141 X W. 131 (1913); Slaughter v. Bernards,
37 So. 614 (1904) ; State v. Kniffen, 44 Wash. 88 Wis. Ill, 59 X. W. 576 (1894) ; 5 Chamb.,
485, 87 Pac. 837 (1906) ; 5 Chamb., Ev., Ev., 3486, n. 8.
3486, n. 4. 41. Ins. Co. v. Baker (Tex. 1895), 31 S. W.
37. Hunkers v. McCaskill, 64 Kan. 516, 1072.
60 Pac. 42 (1902) ; Clardy v. Richardson, 24 42. Ordway v. Couroe. 4 Wis. 45 (1855).
Mo. 295 (1857) ; Quay v. Eagle Fire Ins. Co., 43. Grant v. Henry Clay Coal Co., 80 Pa.
Anth. X. P. (X. Y.) 237 (1816) ; 5 Chamb., 208 (1876) ; 5 Chamb., Ev., 3487, n. 2.
Ev., 3486, n. 5.
833 FOREIGN RECORDS. 1091
Records of Private Writings. The words in the act, " all records and ex-
emplifications of books which may be kept in any public office," are inclusive
of records of conveyances of real or personal property, 44 mortgages, 45 assign-
ments, 46 powers of attorney 4T and in fact all instruments in writing which
are required to be recorded. 48 A copy of a recorded conveyance so authenti-
cated is said to have the same effect in the State in which it is offered in evi-
dence as it would be entitled to by the laws of the State where the instrument
is recorded. 49 A conveyance of land, however, is regulated by the law of the
situs and a record in one State of a conveyance of land situated in another is
no evidence ; consequently a copy thereof is not admissible. 50 Records of such
writings may also be proved by copies certified by the officer having the lawful
custody of them. 5 1
1091. [Copies]; Foreign Records. 52 Proof of the records of a foreign
country is ordinarily made by a properly authenticated copy owing to the diffi-
culty of procuring the original, 53 though of course the latter is admissible,
being spoken of as the best evidence. 54 Thus for the purpose of proving the
contents of records of the British army, it was held competent to show by the
deposition of an officer having the custody of such records, that they were not
allowed to be removed from the country ; this being shown copies of the records
sworn to by the officer to have been true and correct were admitted. 55 So
records of births, marriages and deaths kept by ecclesiastical authorities in
pursuance of a requirement of the law, as is the case in England, have been
received when properly authenticated, 56 though as a prerequisite to their ad-
mission the fact that they were ,so kept must appear. 57 An examined copy
duly made and sworn to by a competent witness has also been received. 58 In
some jurisdictions provision is made by statute for the mode of proving for-
44. Schweigel v. Shakman Co., 78 Minn. Pac. 512, 10. Pac. 967, 106 Pac. 444 (1910);
142, 80 X. W. 871, 81 N. W. 529 (1899) ; Trin- 5 Chamb., Ev., 3489, n. 1.
ity County Lumber Co. v. Pinckard, 4 Tex. 54. Williams v. Conger, 125 U. S. 397, 8 S.
Civ. App. 671, 23 S. W. 720, 1015 (1893); 5 Ct. 933, 31 L. ed. 778 (1887).
Chamb., Ev., 3488, n. 1. 55. In re MeClellan's Estate, 20 S. D. 498,
45. Chase v. Caryl, 57 N. J. L. 545, 31 Atl. 107 X. W. 681 (1906).
1024 (1895). 56. Hancock v. Supreme Council, 67 X. J.
46. Horn v. Bayard, 11 Rob. (La.) 259 L. 614, 52 Atl. 301 (1902): Jacobs v. Order
(1845). of Germania, 73 Hun 602, 26 X. Y. Supp.
47. Rochester v. Toler, 4 Bibb. (Ky.) 106 318 (1893): Sandberg v. State, 113 Wia.
(1815). 578, 89 X. W. 504 (1902); 5 Chamb., Ev.,
48. Smith v. McWaters, 7 La. Ann. 145 3489, n. 4.
(1852). 57. Royal Xeighbors of America v. Hayea,
49. Whaun v. Atkinson, 84 Ala. 592, 4 So. 150 Ky. 626, 150 S. W. 845 (1912) ; Stanglein
681 (1887). v. State, 17 Ohio St. 453 (1867); Guerra v.
50. Donaldson v. Phillips, 18 Pa. 170. 55 San Antonio Sewer Pipe Co. (Tex. Civ. App.
Am. Dec. 614 (1851) ; 5 Chamb., Ev., 3488, 1914), 163 S. W. 669; 5 Chamb., Ev., 3489,
n. 7. n. 5.
51. \Yoods v. Banks, 14 X. H. 101 (1843). 58. American Life Ins., etc., Co. v. Rose-
52. 5 Chamberlayne, Evidence, 3489. nagle, 77 Pa. 507 (1875).
53. State v. McDonald, 55 Or. 419, 103
1091 COPIES AND TRANSCRIPTS. 834
eign documents or records. 59 Where there is no provision by statute as to the
mode of authenticating copies of foreign documents, the question whether they
are properly authenticated is to be determined by the courts as occasion may
require by the rules of common law or the usages of nations ; and by the usages
of nations it is said that such facts as are there recorded may be proved by the
certificates of public officers under their official seals, when these seals are such
that the court takes judicial notice of them. 00 The seal of a notary public
is regarded as one of this description whenever it is used to attest a document
which by the usages of nations may be so attested. 61 In view of the fact that
courts of this country take judicial notice of the seals of State of other nations
a copy of a foreign document authenticated by such a seal will be received. 62
The courts of the United States also take judicial notice of the seals of United
States consuls in authenticating copies of foreign documents. 03
59. In re Kennedy, 82 Misc. 214. 143 N. Y. 61. Id.; Bowman v. Sanborn, 25 N. H. 87
Supp. 404 (11)13); State v. Hassing, 60 Or (1852).
81, 118 Pac. 195 (1911); Sandberg v. State, 62. State v. McDonald, supra; 5 Chamb.,
supra; 5 Chamb., Ev., 3489, n. 7. Ev.. 3489, n. 10.
60. Barber v. International Co. of Mexico, 63. Barber v. International Co. of Mexico,
73 Conn. 587, 48 Atl. 758 (1901). supra.
CHAPTER LIV.
PRIVATE DOCUMENTS AND WRITINGS.
Private documents and writings; corporation records; photographs, 1092.
commercial agencies' records, 1093.
ecclesiastical records, 1094.
nautical records, 1095.
secret society records, 1096.
compelling adversary to produce, 109T.
1092. Private Documents and Writings; Corporation Records; Photographs. 1
The records or the books of a private corporation may be treated, in the
first place, in their assertive capacity as proof of what they assert. So
regarded they are merely hearsay and so far as admissible without the testimony
of their maker are to be received either as admissions 2 or as primary evidence
by virtue of the relevancy or automatism of regularity. 3 In the second place,
however, the memoranda may be relevant or probative by virtue of their truth
or falsity independently relevant as it has seemed expedient to call them. 4
Thus the organization of a corporation may be sufficiently established by the
production of its books for the inspection of the court and jury. 5 The acts
and doings of the corporation may also be shown in the same way, so far as the
memoranda are independently relevant. 6 Documents purporting to be the
records and by-laws of a corporation must be properly identified. 7 The sole
test is as to what is reasonable in view of the facts. 8
1. 5 Chamberlayne, Evidence, 3490. (1891); 5 Chamb., Ev., 3491, n. 4. Cor-
2. Brown v. First Nat. Bank, 49 Colo. 393, poration books as documents. See note, Ben-
113 Pac 483 (1911): Plattdeutsche Grot der. ed , 126 N. Y. 122.
Gilde v. Ross, 117 111. App. 247 (1904): 6. Star Loan Assoc. v. Moore, 4 Pennew.
Clarke v. Warwick Cycle Mfg Co.. 174 Mass. (Del.-) 308, 55 Atl. 946 (1903); Rudd v.
434, 54 N. E 887 (187!)) : Lederer v. Morrow, Robinson, supra; Matter of Mandlebaiim, 80
132 Mo. App. 438, 111 S. W. 902 (1008); Misc. 475, 141 N. Y. Supp. 319 (1913); 5
Leonard v. Faber, 52 App. Div. 495, 65 N. Y. Chamb.. Ev., 3491, n. 5. Irrelevant mat-
Supp. 391 (1900); Stillwater Tornpike Co. ters contained on corporation books may be re-
v. Coover. 25 Ohio St. 558 (1874); Smith v. jected. Trainor v. German- American Sav.,
Moore, 199 Fed. 689. 118 C. C. A. 127 (1912) ; etc., Assoc., 204 111. 616, 68 X. E. 650 (1913) ;
5 Chamb., Ev., 3401. n. 1. See Admissions; 5 Chamb., Ev., 3491, n. 6.
extra-judicial, 2 Chamb.. Ev.. Chap. 18. 7. Wright v. Farmers' Mut. Live-Stock Ins.
3. See Relevancy of Regularity. 4 Chamb., Assoc., 96 Iowa 360, 65 X. W. 308 (1895).
Ev.. Chap. 45. 8. Parkerson v. Burke. 59 Ga. 100 (1877) ;
4. Wilson v. U. S., 190 Fed. 427, 111 C. C. Barton v. Wilson, 9 Rich. ( S. C.) 273 (1856) ;
A. 231 (1911). 5 Chamb.. Ev., 3492. nn. 2. 3. A different
5. First Baptist Church v. Harper, 191 rule may be prescribed by statute. White v.
Mass. 196. 77 X. E 778 (1906): Rudd v. Mastin, 38 Ala. 147 (1861).
Robinson, 126 N. Y. 113, 26 X. E. 1046
835
1092
PKIVATE DOCUMENTS AND WRITINGS.
836
In What Proceedings Admissible. The evidence being intrinsically rele-
vant, it is not material that the memoranda are offered in evidence by the
corporation itself, or by one not a member of the corporation against one of
its members, 10 or on a criminal prosecution of one of its members, 11 or in pro-
ceedings between the corporation and its members. 12 The general rule is to the
effect that a statute alone can authorize a member of a corporation or the cor-
poration itself, to use the corporate records as evidence against a third person
or stranger, ia in the absence of proof that he knew and assented thereto. 14
Such records have, however, been admitted in certain cases. 15
How Proof May Be Made. The most obvious method of proving the exist-
ence of a given corporation record is by production of the original book contain-
ing it and authenticating the same as such to the tribunal by the testimony of
a clerk, secretary lt5 or other person acquainted with the facts. 17 The authen-
tication of the custodian or other witness 18 who saw the entry made 19 will be
sufficient for admissibility although the entry is not in the handwriting of the
proper officer of the company. 20 Xor need authentication be under the seal
of the corporation. 21 It must, however, as a general rule, be shown that the
books have been kept by the proper officer of the company or by some one for
him in his absence. 22 It is not necessary that the record of the stockholders'
meetings should have been at once entered upon the book of original perma-
9. Buncombe Turnpike Co. v. McCarson, 18
N. C. 308 (1835).
10. Semple v. Glenn, 91 Ala. 245, 6 So.
46, 9 So. 265, 24 Am. St. Rep. 894 (1890).
11. Wilson v. U. S., supra.
12. Meridian Oil Co. v. Dunham, 5 Cal. App.
367, 90 Pac. 469 (1907); Fish v. Smith, 73
Conn. 377, 47 Atl. 711, 84 Am. St. Rep. 161
(1900) ; Union Pac Lodge v. Bankers Surety
Co., 79 Xeb. 801, 113 X. W. 263 ( 1907) ; Pop-
penhusen v. Poppenhusen, 68 Misc. 548, 125
N. Y. Supp. 269 (1910); Smith v. Moore,
supra; 5 Chamb., Ev., 3493, n 4.
13. Dolan v. Wilkerson, 57 Kan 758, 48
Pac. 23 (1897); Old South Soc. v. Wain-
wright, 156 Mass. 115, 30 X. E. 476 (1892;
Fleming v. Reed, 77 N. J. L. 563, 72 Atl.
299 (1908) ; Thayer v. Schley, 137 App. Div.
166, 121 X. Y. Supp. 1064 (1910); Railroad
Co. v. Cunnington, 39 Ohio St. 327 (1883) ; 5
Chamb., Ev., 3193, n. 5.
14. Oregon & C. R. Co. v. Grubissich, 206
Fed 577, 124 C. C. A. 375 (1913).
15. Norman Printers Supply Co. v. Ford,
77 Conn. 461, 59 Atl. 499 (1904) ; Kitman v.
Chicago, B. & Q R. Co., 113 Minn 3->0, 129
X. W. 844 (1911) ; Rudd v. Robinson, supra;
5 Chamb., Ev., 3493, n. 7.
16. Fraternal Relief Assoc. v. Edwards, 9
Ga. App. 43, 70 S. E. 265 H910) ; Morgan v.
Lehigh Valley Coal Co., 215 Pa. 443, 64 Atl.
633 (1906).
17. Le Master v. People, 54 Colo. 416, 131
Pac. 269 (1913) ; Church of St. Stanislaus v.
Algemeine Verein, 164 X. Y. 606, 59 X. E.
1086 (1900) ; Wyss-Thalman v. Beaver Valley
Brewing Co., 219 Pa. 189, 68 Atl. 187 (1907) ;
5 Chamb., Ev., 3494, n. 2. That the clerk
or secretary is interested in the litigation will
not justify its exclusion. Stebbins v. Merritt,
10 Cush. (Mass.) 27 (1852).
18. Hurwitz v. Gross, 5 Cal. App. 614, 91
Pac. 109 (1907); Syuchar v. Workingmen's
Co-operative Assoc., 14 Misc. 10, 35 X. Y.
Supp. 124 (1895).
19. St. Lawrence Mut. Ins. Co. v. Paige, 1
Hilt. (X. Y.) 430 (1857).
20. United Growers Co. v. Eisner, 22 App.
Div. 1, 47 X. Y. Supp. 906 (1897).
21. Fleming v. Wallace, 2 Yeates (Pa.) 120
(1796).
22. Union Gold Min. Co. v. Rocky Mountain
Xat. Bank, 2 Colo. 565 (1875); State v.
Trimble, 104 Md. 317, 64 Atl. 1026 (1900);
Highland Turnpike v. McKean, 10 Johns. (N.
Y.) 154, 6 Am. Dec. 324 (1813) ; 5 Chamb.,
Ev., 3494, n. 8. See Leonard v. Faber, 52
App. Div. 495, 65 X. Y. Supp. 291 (1900).
837
PHOTOGRAPHS.
1092
Dent entries where good faith can be assumed. The contemporaneous memo-
randa constitute the record until it has been duly placed in permanent form. 23
By statutory provisions in several states corporate records may be proved by
the use of a certified copy, 24 or by one verified as true by the oath of a wit-
ness, i.e., a sworn copy. 25 Independent of statutory provisions, a copy of a
corporation record will be received by a presiding judge upon satisfactory au-
thentication of the correctness of the copy, 26 as by the official attestation or cer-
tification by the signature of the secretary 2T appended to a copy of a record
of an act of the stockholders or directors further authenticated by the se"al of the
company. 28 The certification of a copy of a corporation's record made by one
not officially connected with the company has no administrative value. 29 It is
not imperative that the copy should be a complete one of the entire record.
It will be regarded as sufficient that it should be reliable as to the point in-
volved in the inquiry. 30 The secretary or other officer of a corporation may
make and authenticate by his certificate copies of the records themselves, but
there is no relevancy of regularity where he undertakes to make up statements
of fact, the legal or other effects of the records appearing upon his books, or
the like. Such statements are accordingly rejected as mere hearsay. 31
Photographs 32 or X-Eay pictures 33 may be put in evidence when relevant
and when shown to have been taken under proper circumstances. 34
23. Vawter v. Franklin College, 53 Ind. 88
(1876); Waters v. Gilbert, 2 Cush. (Mass.)
27 (1848) ; 5 Chamb., Ev., 3495, nn. 1, 2.
24. Maynard v. Interstate Bldg. & L. Assoc.,
112 Ga. 443, 37 S. E. 741 (1900); Chicago,
B. & Q. R. Co. v. Weber, 219 111. 372, 76
N. E. 489 (1905) ; 5 Chamb., Ev., 3496, n.
1.
25. Cantwell v. Welch, 187 111. 275, 58 N.
E. 414 (1900) ; Ide v. Pierce, 134 Mass. 260
(1883) ; 5 Chamb., Ev., 3496, n. 2.
26. Interstate Trust & B. Co. v. Powell
Bros. & S. Co., 126 La. 22, 52 So. 179 (1910).
27. Hallowell & Augusta Bank v. Hamlin,
14 Mass. 181 (1817); Herman v. Supreme
Lodge, K. of P., 66 X. J. L. 77, 48 Atl. 1000
(1901) ; 5 Chamb., Ev., 3496, n. 5.
28. Purser v. Eagle Lake Land & I. Co., Ill
Cal. 139, 43 Pac. 523 (1896) ; 5 Chamb., Ev.,
3496, n. 6.
29. Miller v. Johnston, 71 Ark. 174, 72 S.
W. 371 (1903).
30. Palmer v. Ruland, 28 Colo. 65, 62 Pac.
841 (1900).
31. Oakes v. Hill, 14 Pick. (Mass.) 442
(1833). See also, Tessmann v. Supreme Com-
mandery of U. P., 103 Mich. 1S5. 61 N. W.
261 (1894) : 5 Chamb., Ev., 3497.
32. A photograph is not evidence of dis-
tances especially where the two points in
question are not in the same line of vision.
Southern R. Co. v. Vaughan, 118 Va. 692, 88
S. E. 305, L. R. A. 1916 E 1222 (1916).
33. X-Ray pictures are admissible when
taken by an expert with a good machine
under proper circumstances to make an ac-
curate picture. Griffith v. American Coal Co.,
75 W. Va. 686, 84 S. E. 621, L. R. A. 1915 F
803 (1915). An X-ray photograph may be
put in evidence only when its accuracy is
established, so one should be excluded where
the doctor who took it merely states that he
took it but does not state that they correctly
represent what he saw or how they were
taken or that he had ever taken one before
or knew how they ought to be taken. Ligon
v. Allen, 157 Ky/101, 162, 51 L. R. A. (N. S.)
842 (1914).
34. Photographs are competent evidence
when faithful reproductions of the place or
subject as it existed at the time involved in
the controversy but photographs intended to
illustrate a hypothetical situation and to ex-
plain the theory of one side showing persons
and objects in certain assumed positions are
not admissible. Colonial Refining Co. v.
Lathrop (Okla. 1917), 166 Pac. 747, L. R.
A. 1917 F 890. Admissibility of photo-
1093-1095 PEIVATE DOCUMENTS AND WRITINGS. 838
1093. Commercial Agencies' Records.' 55 The reports of commercial agen-
cies do not come within the scope of the relevancy of regularity. 36 The reason
for this is that they are confessedly not founded upon the personal knowledge
of the entrants, but, on the contrary, are based upon information received
from others, mere hearsay. 37 Circumstances might, however, arise, justifying
their admission. 38
1094. Ecclesiastical Records. 39 The relevancy of regularity which makes
hearsay .primary evidence of the facts asserted under certain sets of facts creat-
ing what may be called an automatism or routine, 40 clearly attaches in case of
official church registers kept by clergymen and other ecclesiastical officers.
Original church records of births, deaths or marriages will, therefore, as an
administrative matter, i.e., apart from any rule of law, statutory or otherwise,
be received in evidence. 41 The fact and date of baptism may be established by
the original entries in a book used for the purpose of recording the conferring
of the sacrament by the proper ecclesiastical authority. 42 But collateral or
incidental facts as to which the entrant can have, as a rule, no personal knowl-
edge and which are not part of his duty either to know or enter on the record
cannot be established in this way. Thus, a clergyman who baptizes a person
cannot add to his record the date of this person's birth , 43 or that a child was
baptized as the legitimate child of his parents. 44
1095. Nautical Records. 45 By act of Congress a log book regularly and
properly kept, in full compliance with the terms of the statute, 46 is made prima
facie evidence of observations noted therein. 47 The statement must be, so far
as practicable, one of fact. 48 The entry must also have been made on the very
day of the occurrence of the event which it records. 49 Apart from the statute,
graphs. See note, Bender, ed., 106 X. Y. 589. ( 1865 ) ; Collins v. German-American Mut. L.
Photographs as evidence of places. See note, Assoc., 112 Mo. App. 209, 86 S. W. 891
Bender, ed., 149 X. Y. 570. (1905) ; Kabok v. Phoenix Mut. L. 1. Co., 4
35. 5 Chamberlayne, Evidence, 3490. N. Y. Supp. 718, 51 Hun 639 (1889); 5
36. Richardson v. Stringfellow, 100 Ala. Chamb., Ev., 3498, n. 3.
416, 14 So. 283 (1893) ; Marx v. Hardy, 25 43. Whitcher v. McLaughlin, 115 Mass. 167
Ky. L. Rep. 1770, 78 S. W. 864, 1105 (1909) ; (1874) ; Houlton v. Manteuffel, 51 Minn. 185,
Cook v. Penrhyn Slate Co., 36 Ohio St. 135, 53 X. W. 541 (1892); Jacobi v. Germania
38 Am. Rep. 568 (1880); 5 Chamb., Ev., Order, 73 Hun 602, 26 X. Y. Supp. 318
3490, n. 1. (1893) ; 5 Chamb., Ev., 3499, n. 1.
37. Van Deman & Lewis Co. v. Demas, 64 44. Blackburn v. Crawfords, 3 Wall. (U.
Fla. 533, 60 So. 342 (1912). S.) 175, 18 L. ed. 186 (1865).
38. Blake v. Meadows, 225 Mo. 1, 33, 123 45. 5 Chamberlayne. Evidence, 3500,
S. W. 868 (1909). 3501.
39. 5 Chamberlayne. Evidence, 1094. 46. Worth v Mumford, 1 Hilt. (X. Y.) 1
40. See 4 Chamberlayne, Evidence, Chap. (1855): 5 Chamb., Ev., 3500, n. 1.
<13. 47. .Tones v. Tho Phnenix, 13 Fed. Cas. No.
41. Maxwell v. Chapman, 8 Barb. (X. Y.) 7,489, 1 Pet. Adm. 201 (1800).
579 (1850) ; Meconce v. Mower, 37 Kan. 298, 48. Worth v. Mumford, supra.
15 Pac. 155 (1887). 49. Brink v. Lyons, 18 Fed. 605 (1883); 5
42. Kennedy v. Doyle, 10 Allen (Mass.) 161 Chamb., Ev., 3500. n. 4.
839 RECORDS. 1096, 1097
the log book has been held inadmissible as proof of the facts asserted in it ; 50
especially when self-serving and offered by the entrant. 51 For example, the
marine protest of a master mariner will not, in the absence of special au-
thorization, be received as evidence of the facts asserted in favor of himself or
his owners. 52 If, however, it were called for by the opponent of the entrant
a different situation would be presented, 53 though it is said to be doubtful if a
mere inspection of a log book by the party against whom it is sought to be used
renders it evidence in favor of the party who made it. 54 Under the general
rules relating to written admissions, 55 an entry in a log book is perfectly com-
petent against those who made, authorized or directed the making of any
entry in it. 56
1096. Secret Society Records. The record of a secret or fraternal organi-
zation, when properly authenticated, may be admissible as to facts which it
was the duty of the officer to record and of which he had personal knowledge. 57
No relevancy of regularity can, however, admit it as proof of collateral facts
asserted, such as the age 5S of a member which it is no part of the duty of the
entrant to record.
1097. Compelling Adversary to Produce. 59 The right of a party to call
upon his opponent to produce some writing within his power or control for
the inspection of the former, is to a great extent, controlled by legislative enact-
ment, providing a mode of relief in addition to the equitable method by bill of
discovery. 60 Among the earliest statutes were the act of Congress by which
the court was authorized to impose a penalty of nonsuit or default upon a party
for the non-production of papers which he was ordered to produce, 1 ' 1 and the
Xew York act which permitted the court in case of disobedience of such an
order to strike out a pleading and. order judgment for the opposite party. 62
Other statutes subsequently passed in the various States are along much the
same lines, 63 their object generally being to relieve the situation at common
50. Worth v. Mumford, supra; The Ken- well, 45 X. Y. 753 (1871); 5 Chamb., Ev.,
tucky, 148 Fed. 500 (1906): 5 Chamb., Ev., 3501.
3500, n. 5. 57. Leach v. Dodson, 64 Tex. 185 (1885) ;
51. U. S. v. Gilbert, 25 Fed. Cas. No. 15.204, Wiener v. Zweib (Tex. Civ. App. 1910), 128
2 Sumn. (U. S.) 19 (1834), the log book will S. W. 699; 5 Chamb., Ev., 3502, n. 1.
not be received as proof of the date of the 58. Connecticut Mut. L. Ins. Co. v.
vessel's sailing. Schwenk, 94 U. S. 593, 24 L. ed. 294 (1876).
52. Peck v. Gale, 3 La. 320 (1832); Cud- 59. 5 Chamberlayne. Evidence, 3503.
worth v. South Carolina Ins. Co., 4 Rich. (S. 60. Geyger v. Geyger, 10 Fed. Cas. No.
C.) 416, 55 Am. Dec. 692 (1851) ; 5 Chamb.. 5.375, 2 Ball. 232 (1795).
Ev., 3500, n. 8. 61. Tasigi v. Brown, 1 Curtis C. C. (U. S.)
53. The Kentucky, supra. 401 (1853).
54. Worrall v. Davis Coal & C. Co., 113 62. Gould v. MoCarty, 11 X. Y. 575 (1854).
Fed. 549 (1902). 63. Morehouse v. Morehouse, 136 Cal. 332,
55. Supra, 546 et seq.; 2 Chamb., Ev., r,S Pac. 976 (1902) ; Marshall v. McXeal. 114
1356 et seq. G a . 622. 40 S. E. 796 (1901) : Meeth v. Ran-
56. U. S. v. Gilbert, supra; Atkins v. El- kin Brick Co., 48 111. App. 602 (1892); Hoyt
1097 PRIVATE DOCUMENTS AND WRITINGS. 840
law, which, except in a few cases, 64 afforded practically no relief. The only
benefit obtained was that after notice and refusal the door was then opened for
the admission of secondary evidence of the contents of the papers asked for. 65
v American Exch. Bank, 1 Duer (N. Y.) 652 Pa. Dist. R. 10 (1902) ; 5 Chamb., Ev., 3503,
8 How. Pr. 89 (1853) ; Johns v. Johns, 6 Ohio n 5.
272 (1834) ; 5 Chamb., Ev., 3503, n. 4. 65. Golden v. Conner, 89 Ala. 598, 8 So. 148
64. People v. Circuit Judge, 41 Mich. 258, (1889) ; Hoagland v. Great Western Tel. Co.,
49 N. W. 921 (1879) ; Utica Bank v. Hillard, 30 111. App. 304 (1888); 5 Chamb., Ev.,
6 Cow. (N. Y.) 62 (1826) ; Com. v. Meads, 11 3503, n. 6.
CHAPTER LV.
PRIVATE DOCUMENTS AND WRITINGS; MEMORANDA,
Private documents and writings; memoranda, 1098.
1098. Private Documents and Writings; Memoranda. 1 Memoranda, like
other forms of hearsay, not affected by some special relevancy, such as that of
spontaneity 2 or regularity, 3 which confers admissibility as primary evidence,
or of some " exception " to the hearsay rule as secondary, are inadmissible,
regardless of the forensic necessity of the proponent. This is precisely the
striking, practically the only, anomaly of the English law of evidence. 4
As Primary Evidence; Admissions. In any case where a memorandum is
relevant as primary evidence, as in case where such a document constitutes an
admission, 5 the statement will be received. 6 A memorandum may. under ap-
propriate circumstances, constitute an admission more nearly analogous to those
by conduct; which, as is elsewhere said, 7 are in reality circumstantial or pro-
bative facts. Thus, where a memorandum was read by one of the parties to a
transaction to the other, or by a third person to both of two contracting parties
and received without dissent as expressive of the terms of an agreement, the
memorandum is admissible. 8
To Refresh Memory: Present Memory. If a memorandum refreshes the
memory of the witness so that he is able to state from recollection the particu-
lars recorded, the memorandum will not be received. 9 In such a case it is
1. See infra. 1 1 73 : 5 Chamberlayne, ments as a sufficient reason for receiving hear-
Evidence. 3504-351 1. say memoranda. Rowland v. Philadelphia A
2. See Chap. 44, supra: 4 Chamb., Ev., B. R. Co., 63 Conn. 415, 28 Atl. 102 (1893);
Chap. 42. 5 Chamb., Ev., 3504, n. 5.
3. See Chap. 45, supra; 4 Chamb., Ev., 5. Nagle v. Fulmer, 98 Iowa 585, 67 N. W.
Chap. 43. 369 (1896); House Wrecking Co. v. Senken,
4. See 837 et seq.: 4 Chamb., Ev., 152 Mo. App. 458, 133 S. W. 355 (1911); 5
2574 et seq. Thus, for example, the maker Chamb., Ev., 3505, n. 1.
of a self-serving memorandum may be dead, 6. Meyer v. Reichart, 112 Mass. 108 (1873).
yet the declaration may be probatively rele- 7. Supra, 582 et seq.; 2 Chamb., Ev.,
vant as to the truth of the facts asserted, 1292 et seq.
which may be provable in no other way. The 8. Athens Mfg. Co. v. Malcolm, 134 Ga. 600,
memorandum is, nevertheless, rejected. Davie 68 S. E. 329 (1910); Monroe v. Snow, 131
v. Lloyd, 38 Colo. 250, 88 Pac. 446 (1906); 111. 126, 23 N. E. 401 (1890); Dickinson v.
Sherman v. Whiteside. 93 111. App. 572, Robbins, 12 Pick. (Mass.) 74 (1831): Lath-
aff'd 190 111. 576, 60 X. E. 838 (1900) ; Mair rop v. Bramhall. 64 N. Y. 365 (1876) ; 5
v. Bassett, 117 Mass. 356 (1875): Vaughn Chamb., Ev.. 3505, n. 4.
v. Strong. 4 X. Y. Supp. 686 (1889); 5 9. People v. Lanterman, 9 Cal. App. 674,
Chamb., Ev., 3504, n. 4. Death has oc- 100 Pac. 720 (1909); Hawken v. Daley, 85
casionally been treated in statutory enact- Conn. 16, 81 Atl. 1053 (1911); Koehler v.
841
1098 PRIVATE Doci MEKTS AND WRITINGS. 842
not regarded as essential that the memorandum should have been made by the
witness provided the circumstances under which it was made were such that he
may be considered as having knowledge of its correctness. 1 " The use of a
copy in place of the original has also in some cases been allowed, 11 though it is
said that this means is attended with suspicion. 12 In any case, however, the
genuine nature and authenticity of the memorandum itself will be scrutinized
with the utmost care by the presiding judge. 13
AdmissibiUty Independent of. Should the production of the contempora-
neous memoranda fail to refresh the memory of the maker to such an extent as
to enable him to testify to the existence of the facts asserted as a matter of
present knowledge, the memoranda themselves may be admitted in evidence,
as constituting proof of the facts asserted ; 14 provided the maker of the mem-
orandum is able to testify, not only that he made it under proper conditions
of contemporaneousness and the like, but also that he knows now that at the
time he made the memorandum he knew the facts and that the memorandum
states them correctly. 15 It is also essential that the original should be used
in such a case and not a copy. 10
Probative Relevancy. The probative relevancy of such documents might
with propriety be regarded either as that of spontaneity 1T or of regularity, 18
according to whether it was or was not the business or official duty of the per-
son in question to make the memorandum. Also, the memory is actually, if
not completely refreshed, 19 to the extent at least of recognition of the memor-
andum as that of the witness, and ability to assert its having been made from
a personal knowledge at that time adequate. Apart from such refreshing of
memory, and the personal recognition and authentication which it renders pos-
sible, the memoranda made by a person viewed as evidence of the facts asserted,
Abey, 168 Mich. 113, 133 X. W. 923 (1911) ; v. Vandalia R. Co.. 168 Til. App. 621 (1912) ;
Mattison v. Mattison, 203 N. Y. 79, 96 X. E. Koehler v. Abey. supra; People v. McLaugh-
359 (1911) ; 5 Chamb., Ev , 3507, n. 1. Ad- lin, 150 N Y. 365, 44 X. E. 1017 (1896) ; 5
ministrative necessity for the use of memo- Chamb., Ev., 3508, n. 1.
randa. See 5 Chamb., Ev.. 3506. 15. Atlanta & B. A. L. Ry. Co. v. Brown,
10. Com v. Ford, 130 Mass. 64 (1881); 158 Ala. 607, 48 So. 73: Briggs v. Rafferty,
Douglass v Leighton, 57 Minn. 81, 58 X. W. 14 Gray (Mass.) 525 (1860) ; Titus v. Gunn,
827 (1894) ; Huff v. Bennett, 6 X. Y. 337 69 X. J. L. 410, 55 Atl. 735 (1903) ; Josias v.
(1852); Hill v. State. 17 Wis 675 (1864): Xivois, 50 Misc. 557, 107 X. Y. Supp. 15
Molxahn v Christensen, 152 Wis. 520, 139 (1907); 5 Cliamb.. Ev.. 3508, n. 2.
N. W. 429 (1913); 5 Chamb.. Ev.. 3507. n. 16. Green v. Caulk, 16 Md. 556, 575
2. ( 1H60) : Charleston Xat. Bank Assoc. v. Zorn,
11. Finch v. Barclay, 87 Ga. 393, 13 S. E. 14 R. C. 444 (1880).
566 (1891) ; Bouvet v Glattfeldt, 120 111 166, 17. Supra. Chap. 46; 4 Chamb., Ev., Chap.
11 X. E 250 (1887); Com v. Ford, supra; 44.
5 Chamb., Ev., 3507, n 3. 18. Supra, Chap. 47: 4 Chamb., Ev., Chap.
12. Folsom v. Apple River Log-Driving Co., 45.
41 Wis. 602 (1877). 19. Costello v. Crowell, 133 Mass. 352
13. Phenix Ins. Co. v. Hart, 112 Ga. 765, (1882) : McCabe v. Swift & Co., 143 111. App.
38 S. E. 67 (1990). 404 (1908).
14. Hawken v. Daley, supra: Davis Bros.
843 MEMORANDA. 1098
indicated or intended would be hearsay and rejected under that rule. 20 For
this reason a report of the results of inspecting railroad cars, locomotives,
vessels or the like, would not be admissible in evidence. 21 The entries of a
nurse, physician or surgeon upon a hospital register as to the details of a case
are pure hearsay and also to be excluded if offered without the testimony of
the writer, 22 unless it is shown that the entrant is dead or cannot be pro-
duced. 23
Time of Making. The courts frequently use the expressions " contem-
poraneous with/' u at or near the time/' '" at or about the time," and others of
a like nature, 24 in defining the required nearness of the making of the mem-
orandum to the occurrence or event there recorded. Expressions of this char-
acter are of course vague and indefinite, and it is said that no precise rule can
be stated. 25 In all cases the question is whether the writing may be considered
as sufficiently near to justify the inference that the matter to be recorded was
fresh enough in the mind of the writer to enable him to make a memorandum
correctly stating the fact as it actually occurred. If so then it may be used;
if not then of necessity its use should not be allowed. 26
Independent Relerancy; Res Gestae. Memoranda may be admissible in
evidence not only in their assertive capacity, i.e., as hearsay evidence of the
facts asserted ; they may be independently relevant, 27 i.e., by reason of their
mere existence, irrespective of the truth or falsity of the contained statement
itself, as where a memorandum constitutes a fact in the res gestae. 2 * The
res gestae, in fact, may in a sense result in the creation of what may be called
a constituent memorandum as well as of a constituent document. It is not
material whether such a memorandum has been made by one of the parties
20. Lowe v. Donnelly, 36 Colo. 292, 85 Pac. N. W. 968 (1894) ; Howard v. McDonough,
318 ( 1906) : People v. McKeoun, 171 111. App. 77 N. Y. 592 (1879) ; Jones v. State, 54 Ohio
146 ( 1!>12) : Gray v. Boston Elev. Ry. Co., 215 St. 1, 42 N. E. 699 (1896) ; 5 Chamb., Ev.,
Mass. 143 102 X. E. 71 (1913); Donner v. 3510, n. 1.
State, 72 Xeb. 263, 100 X. W. 305 (190.4); 25. Lawson v. Glass, 5 Colo. 134 (1881);
Goldfarb v. Goldman, 141 X. Y. Supp. 479 Bates v. Preble, 151 U. S. 149, 38 L. ed. 106,
(1907) : Osborne v. Grand Trunk Ry. Co., 87 14 S. Ct. 277 (1893).
Vt. 104, 88 Atl. 512 (1913); Molzahn v. 26. In any event it is a matter for the pre-
Christensen, supra: 5 Chamb., Ev., 3509, n. siding judge to determine in the sound exer-
5. cise of his powers of administration. Lawson
21. Baltimore, etc., Ry. Co. v. Tripp, 175 v. Glass, supra; Chamberlin v. Ossipee, 60 X.
111. 251, 51 X E. 833 (1898) ; Perkins v. Au- H. 212 (1880) ; 5 Chamb., Ev., 3510.
gusta Ins. & B. Co., 10 Gray (Mass.) 312, 71 27. Supra, 838 et seq.; 4 Chamb., Ev.,
Am. Dec. 654 (1858) : 5 Chamb., Ev., 3509, 2581 et seq.
n. 6. 28. Parkinson Co. v. Tullgren, 177 111. App.
22. Estate of Everts, 163 Cal. 449, 125 Pac. 295 (1913); Federal Union Surety Co. v.
1058 (1912) ; Griebel v. Brooklyn Heights R. Indiana Lumber & Mrg. Co., 176 Ind. 328. 95
Co., 95 App. Div. 214, 88 X. Y. Supp. 767 X. E. 1104 (1911); Milne v. Chicago, etc.,
(1904) ; Chamb., Ev., 3509, n. 7. R. Co., 155 Mo. App. 465. 135 S. W. 85
23. Cashin v. Xew York, etc., R. Co., 185 (1911); Xational Ulster County Bank v. Mad-
Mass. 543, 70 X. E. 930 (1904). den, 114 X. Y. 280, 21 X. E. 408, 11 Am. St.
24. Morrison v. Chapin, 97 Mass. 72 Rep. 633 (1851) ; 5 Chamb., Ev., 3511, n. 2.
(1867) ; Atckison T. Lawler, 40 Neb. 356, 58
1098 PEIVATE DOCUMENTS AND WEITINGS. 844
for both, or that it should have been made partly by one of the parties and
party by the other. 29 Evidently no such constituent memorandum is created
except where both parties agree to it or assent to, or otherwise ratify it, or
where it is prepared under the assent of both. 30
29. Bigelow v. Hall, 91 N. Y. 145 (1883). (1877) ; Smith v. Dreyer, 228 Pa. 438, 77 Atl.
30. Boone v. Rickard, 125 111. App. 438 628 (1910); 5 Chamb., Ev., 3511, nn. 4, 5.
(1906); Flood v. Mitchell, 38 N. Y. 507
CHAPTER LVI.
PRIVATE DOCUMENTS AND WRITINGS; PROOF OF ORIGINAL.
Private documents and writings; proof of original, 1099.
attested writings; general rule, 1100.
instruments executed under a power, 1101.
exceptions to rule, 1102.
1099. Private Documents and Writings; Proof of Original. 1 In the ab-
sence of any statute which may be controlling of the subject, 2 the general rule
has been applied to private documents, such as assignments, 3 bills of lading. 4
bills of sale, 5 bonds, certificates of stock, 7 circulars purporting to give market
prices, 8 or issued for the purpose of procuring investments or securing the
patronage of others, 9 commercial paper, such as checks, notes and the like, 10
contracts of various kinds, 11 deeds and conveyances of real property, 12 leases, 13
letters, 14 mortgages of real or personal property, 15 newspaper advertisements, 16
1. 5 Chamber layne, Evidence, 3512-
3514.
2. Charles v. Valdosta Foundry & M. Co., 4
Ga. Appf 733, 62 S. E. 493 ( 1908) ; Boseker v.
Chamberlain, 160 Ind. 114, 66 N. E. 448
(1902) ; London & X. W. Amer. Mortg. Co. v.
St. Paul Park Imp. Co., 84 Minn. 144. 86 N.
W. 872 (1901); Matter of Pirie.l 133 App.
Div. 431, 117 X. Y. Supp. 753 (1909); 5
Chamb., Ev., 3512. n. 1
3. Pennsylvania Min Co. v. Owens, 15 Cal.
135 (1860); Hagins v. Arnett, 23 Ky. L.
Rep. 809, 64 S. W. 430 (1901).
4. Hill v. Adams Exp Co., 74 X. J. L. 338,
68 Atl. 94 (1907). Compare Beach v Schroe-
der, 47 Colo. 312, 107 Pac. 271 (1910); 5
Chamb., Ev., 3512, n. 3
5. State v. Pirkey, 22 S. D. 550, 118 X. W.
1042 (1908) ; Jaquith Co. v. Shumway's Es-
tate, 80 Vt. 556, 69 Atl. 157 (1908); 5
Chamb., Ev., 3512, n. 4.
6. Equitable Mfg. Co. v. Davis, 130 Ga. 67,
60 S. E. 262 (1908); Craw v. Abrams. 68
Neb. 546, 94 X. W. 639, 97 N. W. 296 ( 1903) ;
5 Chamb., Ev., 3512, n. 5.
7. Whitaker v. State, 11 Ga. App. 208, 75
S. E. 258 (1912).
8. Willard v. Mellor, 19 Colo. 534, 36 Pac.
148 (1894).
9. Atchison, etc., R. Co. v. Cruzen, 31 Kan.
718, 3 Pac. 520 (1884).
10. Denver Omnibus & Cab Co. v. Cast, 54
Colo. 17, 129 Pac. 233 (1912); Thompson v.
Wilkinson, 9 Ga. App 367, 71 S. E. 678
(1911) ; Hugumin v. Hinds, 97 Mo. App. 346,
71 S. W. 479 (1902); Matter of Pirie. 198
N. Y. 209, 91 N E. 587 (1910); 5 Chamb.,
Ev., 3512, n. 9.
11. Outcault Advertising Co. v. American
Furniture Co.. 10 Ga. App. 211, 73 S. E. 20
(1911); Ruckman v. Stone Milling Co., 139
Mo. App. 256, 123 S. W. 69 (1909) ; 5 Chamb.,
Ev., 3512, n. 10.
12. Gray Lumber Co. v. Harris, 127 Ga.
693, 56 S. E. 252 (1906); Jackson v. Pratt,
10 Johns. (X. Y.) 381 (1813); Harden v.
Hays, 14 Pa. 91 (1850); 5 Chamb., Ev.,
3512, n. 11.
13. Smith v. Guarantee Dental Co., 114 N.
Y. Supp. 867 (1909).
14. Butterworth v. Cathcart, 168 Ala. 262,
52 So. 896 (1910) ; Lovett v. Gibb, 128 X. Y.
Supp. 1047 (1911) ; 5 Chamb., Ev., 3512, n.
13.
15. Lewis v. Glass (Ala.), 39 So. 771
(1905); Cooke v. Pennington, 7 S. C. 385
(1878) ; 5 Chamb., Ev., 3512, n. 14.
845
1099
PRIVATE DOCUMENTS AND WRITINGS.
846
and passenger lists published therein, 17 policies of insurance, 18 and applica-
tions therefor, 19 powers of attorney, 2 " receipts 21 and wills, 22 that where the
original is offered in evidence it must be authenticated to the court as the act
of the person against whom it is offered. In case he is said to have signed
or otherwise executed it. the due and proper execution of the same by him
must be shown to the satisfaction of the presiding judge. 23 Practically the
same administrative rule will be applied in criminal as in civil cases. 24
Where an instrument executed by several is offered in evidence against one of
the obligors, his execution of the writing only need be proved; no proof as
to the other parties is required. 25 Where the writing is introduced to prove
a collateral fact proof of execution has been dispensed with. 26
Mode of Proof; Evidence to Show Execution. The due and proper execution
of a private writing, to which there is no attesting witness, may be established by
any competent evidence. 27 It need not necessarily be direct, circumstantial evi-
dence being frequently equally satisfactory, 28 it being sufficient if it be neces-
sarily inferable, from the facts and circumstances proved, that the writing was
executed by the one whose name appears thereon as maker. 29 A frequent mode
of proving the execution of a writing is by the testimony of a witness that he
was present at the time it was executed 30 and saw the party affix his signature
24. State v. Oeder, 80 Iowa 72, 45 N. W.
543 (1800) ; People v. Corey, 148 X. Y. 476,
42 N. E 1066 (1896): Montieth v. State,
114 Wis. 165, 89 N. W. 828 ( 1902) ; 5 Chamb.,
Ev., 3512, n. 23.
25. Conard v. Atlantic Ins. Co., 1 Pet. (U.
S.) 386, 7 L. ed. 862 (1828). See Kolb v.
Jones, 62 S C. 193. 40 S. E. 168 (1901); 5
Chamb., Ev., 3512, n. 24.
26. State v. Waldrop, 73 S. C 60, 52 S. E.
793 (1905). See Western Cottage Piano 4
Organ Co. v. Anderson, 45 Tex. Civ. App. 513,
101 S. W. 1061 (1907).
27. Dundy v. Chambers, 23 111. 369 (1860) ;
Oldham v Oldham (R. I.), 83 Atl. 265
(1912) ; 5 Chamb., Ev., 3513, n. 1.
28. Garland v. Gaines, 13 Conn. 662, 49 Atl.
(1901); Alpena v. Mainville, 163 Mich. 732,
117 N. W. 338 (1908) : Ashlock v. Com., 108
Va. 877, 61 S. E. 752 (1908) ; 5 Chamb., Ev.,
3513, n. 2.
29. Garland v. Gaines, supra, the execution
of a lease may be established by evidence
showing that it was sent to a non-resident
lessee, came back with his name signed to it
and that he subsequently occupied the prem-
ises. Fergerson v. Smith, 104 Ind. 246, 3
N. E. 866 (1885).
30. Mosely v. Gordon, 16 Ga. 384 (1854) )
16. Mann v. Russell, 11 111. 586 (1850).
17. Johnson v. Johnson, 25 Or. 496, 30
Pac. 161 (1894) ; 5 Chamb., Ev., 3512, n. 16.
18. Crutchfield v. Dailey, 98 Ga. 462, 25
S E. 526 (1896); American Underwriters'
Assoc. v. George, 97 Pa. 238 (1881).
19. Brown v. Rape, 136 Ga. 584, 71 S. E.
802 (1911); Eminent Household of Colum-
bian Woodmen v. Prater, 37 Okl. 568, 133
Pac. 48 (1913).
20. Scotland County Nat. Bank v. Hohn,
146 Mo. App. 699, 125 S. W. 539 (1910);
Jackson v. Hopkins, 8 Johns. (N. Y. ) 487
(1821).
21. Empire Ranch & Cattle Co. v. Lan-
ning, 53 Colo. 151, 124 Pac. 579 (1912) ; Bell
Bros. v. Western & A. R. Co., 125 Ga. 510,
54 S. E. 532 (1906) ; 5 Chamb., Ev., 3512,
n. 20.
22. Hicks v. Deemer, 187 111. 164, 58 N. E.
252 (1900).
23. Kidd v. Huff, 105 Ga 209, 31 S. E.
430 (1898); Com. v. Eastman, 1 Cush.
(Mass) 189, 48 Am. Dec. 596 (1848); Bid-
well v. Overton, 13 N. Y. Supp. 274, 26 Abb.
N. Cas. 402 (1891) ; Archer v. U. S., 9 Okl.
569, 60 Pac. 268 (1900); Bomgardner v.
Schwartz, 26 Pa. Super. Ct. 263 (1904);
Apache County v. Earth, 177 U. S. 538, 20 S.
Ct. 718, 44 L. ed. 878 (1900) ; 5 Chamb., Ev.,
3512, n. 22.
847 OEIGINAL. 10 ( J'J
thereto. 31 Another mode which is often employed is to prove the handwriting
of the maker of the instrument 32 either by a comparison of the disputed hand-
writing with other writings proved or admitted to be genuine, 33 or by the identi-
fication of the maker's signature by a witness who is familiar with his hand-
writing. 34 The execution of the writing by the one by whom it purports to be
made may be established by his admissions, either judicial or extra-judicial, 36
or by evidence of particular acts of his amounting to an acknowledgment of
execution of the instrument by him. 3G The evidence must, in all cases, be suf-
ficiently certain to satisfy the presiding judge that the paper to which it refers
is identical with the one it is attempted to establish. 37
Identification Otherwise than by Proof of Execution. Where a paper is
independently relevant, it may be admissible, if sufficiently connected with the
person to be affected by it as to be probative to the effect desired. 38 The execu-
tion need not be proved before the writing is received in evidence. 39 The writ-
ing may be admitted de bene upon the assurance that formal proof will be of-
fered later, and at a later stage of the trial stricken out if the proof is not pro-
duced. 40 So, any inadequacy in proof may be supplied at a subsequent time in
the trial. 41 Where other writings, plans, diagrams or the like are incorporated
in a principal document by references contained in it, identification satisfactory
to the court is sufficient. 42 Full proof of the execution of these collateral docu-
ments or other incorporated matters has, however, been required. 43
31. Malchow v State, 5 Ala. App 99, 50 38. Thus, if the object be to show that A
So. 342 (1912): Dunby v. Chambers, supra: knew the contents of a paper, proof of its
Stoddard v. Hill, 38 S. C. 385. 17 S. E. 138 production from a place to which he alone
(1892). had access, e.g., his pocketbook, may suffi-
32. Pullen v. Hutchinson, 25 Me. 249 ciently connect him with it for the purposes
(1845); Rogers v New York & Brooklyn of the case. Whaley v. State, 11 Ga. 123
Bridge. 11 App Div. 141, 42 X Y Supp. (1852).
1046 (1896), aff'd 159 X. Y. 556. 54 X. E. 39. Allen v. State, 61 Ind. 268, 28 Am.
1094 (1899) ; 5 Chamb., Ev., 3513, n 7. Rep. 673 (1878) : 5 Chamb., Ev., 3514, n. 3.
33. Paulk v. Creech, 8 Ga. App. 738, 70 40. Dupree v. Virginia Home Ins. Co., 92
S. E. 145 (1910). X. C. 417 (1885).
34. Rutherford v. Dyer. 146 Ala. 665, 40 41. Houck v. Linn, 48 Xeb. 227, 66 X. W.
So. 974 (1906)'; Bauer v. State, 144 Cal 1103 (1896)
740, 78 Pac. 280 (1904) ; Hinchman v. Keener, 42. Xeuval v. Cowell, 36 Cal. 648 (1869) ;
5 Colo. App. 300, 38 Pac. 611 (1894); 5 Smith v. Xew York Cent. R Co., 4 Keyes (N.
Chamb., Ev., 3513, n. 9. Y.) 180, 4 Abb. Dec. 262 (1868) : 5 Chamb.,
35. White v. Solomon, 164 Mass. 516, 42 Ev., 3514, n. 6.
X. E. 104 (1895); Matoushek v. Dutcher, 43. Lee v. Payne, 4 Mich. 106 (1856);
67 Xeb. 627, 93 X. W. 1049 ( 1903) ; Stewart Jackson v. Sackett, 7 Wend. (X. Y.) 94
v. Gleason, 25 Pa. Super. Ct. 325 (1903): (1831). Wills as evidence of title See note,
Smith v. Gale, 144 U. S. 509, 12 S. Ct. 674, Bender, ed., 121 X. Y 95 A bill indorsed
36 L. ed. 521 (1892) ; 5 Chamb., Ev., 3513, may be given although copy did not show in-
n. 11. dorsement. See note, Bender, ed., 7 X. Y. 283.
36. Houston & Texas C. R. Co. v. Chandler, Conclusiveness of certificate of deposit. See
51 Tex. 416 (1879). note, Bender, ed., 48 X. Y. 487. Letters in
37. Burgen v. Com., 8 Ky. L. Rep. 613 evidence. See note, Bender, ed.. 126 X. Y.
(1887); Thatcher v Goff, 11 La. 94 (1837); 419. Recitals in instruments as evidence.
5 Chamb., Ev., 3513, n. 13. See note, Bender, ed., 24 X. Y. 346.
1100
PRIVATE DOCUMENTS AND WRITINGS.
848
1100. Attested Writings; General Rule. 44 The testimony of an attesting
witness will be required to prove the execution of a private writing 45 to which
he has affixed his signature in that capacity, at the request or with the consent
of the party or parties executing it, 40 providing of course that he can be pro-
duced. 47 This rule is regarded by the courts as one of the most stringent and
inflexible and, consequently, is rigidly adhered to. 48 This mode of proof has
been applied alike to private writings without regard as to whether they were
executed under seal or not, 49 subject of course to statutory provisions regu-
latory thereof. 50 Where the evidence furnished arises merely incidentally or
collaterally, proof by an attesting witness of its execution may not be neces-
sarv.
51
Subscribing Witness; Defined. A subscribing or attesting witness may be
defined as one who was present at the time of the execution of an instrument,
and who at the request or with the consent of the party or parties, subscribed
his name thereto as a witness of the fact of the execution. 52 It is not neces-
sary, however, that he should actually see the writing executed, 53 or be present
at the precise moment of the act of the party or parties in executing it, it being
sufficient if his signature was affixed immediately thereafter, 54 upon the re-
quest or assent of such party or parties, which latter element is regarded as
essential. 55 One's character as a witness will not be affected, in the absence of
44 5 Chamber layne, Evidence, 3515-
3519.
45. Kelsey v. Hanmer, 18 Conn. 311
(1847); Thompson v. Wilkinson, 9 Ga. App.
367, 71 S. E. 678 (1911); Boyle v. Knauss,
81 N. J. L. 330, 79 Atl. 1025 (1911) ; Read v.
Metropolitan Life Ins. Co., 17 Misc. 307, 40
N. Y. Supp. 374 (1896); Warner v. Balti-
more & 0. R. Co., 31 Ohio St. 265 (1877) ;
North Penn Iron Co. v. International Lithoid
Co., 217 Pa. 538, 66 Atl. 860 (1907); 5
Chamb., Ev., 3515, n. 1.
46. Sherwood v. Pratt, 63 Barb. (N. Y.)
137 (1808).
47. Ellis v. Doe, 10 Ga. 253 (1851) ; Samp-
son v. Grimes, 7 Blackf. (Ind.) 176 (1844);
Gelott v. Goodspeed, 8 Cush. (Mass.) 411
(1851) ; 5 Chamb., Ev., 3515, n. 3.
48. Ellis v. Doe, supra; 5 Chamb., Ev.,
3515, n. 4. The theory is that when parties
to a transaction have called in a third per-
son as a witness thereto, they preappoint
him as the one by whom their act is to be
proved in case of the use of the instrument
as the basis of an action or proceeding be-
tween them. He is presumed to have a
knowledge of the circumstances attending
the transaction superior to that possessed by
others. Labarthe v. Gerbeau, 1 Mart. N. S.
(La.) 486 (1823); Handy v. State, 7 Harr.
& J. (Md.) 42 (1826): supra, 120, 243:
1 Chamb., Ev., 269c, 487; 5 Chamb., Ev.,
3515, n. 7.
49. Henry v. Bishop, 2 Wend. (X. Y.) 575
(1829) ; International & G. X. R. Co. v. Mc-
Rae, 82 Tex. 614, 18 S. W. 672, 27 Am. St.
Rep. 926 (1891); 5 Chamb., Ev., 3515, n.
8.
50. McKay v. Lasher, 121 X. Y. 477, 24
X. E. 711 (1890), aff'g 50 Hun 383, 3 X. Y.
Supp. 352 (1888) ; 5 Chamb., Ev., 3515, n.
9.
51. Smith v. Soper, 12 Colo. App. 264, 55
Pac. 195 (1898): Goza v. Browning, 96 Ga.
421 (1895): Ayers v. Hewett 19 Me. 281
(1841); Skinner v. Brigham, 126 Mass. 132
' (1879) ; 5 Chamb., Ev., 3515, n. 10.
52. Hollenback v. Fleming. 6 Hill (X. Y.)
303 (1844). For other definitions to the
same effect see: Matter of Chite, 37 Misc.
586, 75 X Y. Supp. 1059 (1902) ; Luper v.
Werts, 19 Or. 122, 23 Pac. 850 (1890); 5
Chamb . Ev., 3516, n. 1
53. Hale v. Stone, 14 Ala. 803 (1848);
Pequawkett Bridge v. Mathes, 7 X. H. 230, 26
Am. Dec. 737 (1834).
54. Hollenback v. Fleming, supra.
55. Matter of Clute, supra; Schomaker v.
849 ATTESTED WETTINGS. 1100
statute, by the fact of his youth at the time he subscribed his name or that he
was not proficient in the art of reading and writing; 56 even his absolute in-
ability to read or write will not affect the admissibility of his testimony, and
signing by mark may be disregarded, 57 though it has been said that it may
affect the weight to be accorded. 58
Number Required. Where two or more persons have subscribed their names
to a writing as witnesses, the proof in all cases must be such as to satisfy the
court of the due and proper execution of the document offered in evidence. 59
This result is ordinarily accomplished by calling one witness only. 60 If the
presiding judge is not satisfied, from the testimony of one witness, with the
proof of execution, he may insist that one or all of the remaining witnesses
be called. 61
Effect of Admissions. It is the general rule that an admission by the party
executing the writing, whether in the pleadings, or in any other form, 63 will not
be received to prove the execution of an instrument, if an attesting witness
thereto can be produced. Similarly, in the case of testimony by one or both
parties, the presiding judge will likewise insist upon proof by the attesting
witness where his testimony is available. 64 Nor does the statute making parties
competent witnesses abrogate the rule requiring the calling of such a wit-
ness. 65
Sufficiency of Proof. A party is entitled to supplement the testimony of a
subscribing witness by other evidence for the purpose of establishing by satis-
factory evidence the execution of the writing in question ; 67 he may even go
further, if the witness should deny his signature or the execution of the instru-
ment, and contradict his testimony b^ evidence showing the signature to be
Dean, 201 Pa. 439, 50 Atl. 923 (1902); 5 63. Id.: Fox v. Reil, 3 Johns. (N. Y.) 477
Chamb., Ev., 3516, n. 4. (1808) ; Zerby v. Wilson, 3 Ohio 42, 17 Am.
56. Wyche v. Wyche, 10 Mart. (La.) 408 Dec. 577 (1827) ; 5 Chamb., Ev., 3518, n. 3.
( 1821 ) . But see, Jones v. Henry, 84 N. C. 320, 37 Am.
57. Watts v. Kilburn, 7 Ga. 356 (1849) ; Rep. 624 (1881) : Hodges v. Eastman, 12 Vt.
Kinney v. Flynn, 2 R. I. 3J9 (1852). 358 (1839).
58. Allred v. Elliott, 71 Ala. 224 (1881). 64. Barry v. Ryan, 4 Gray (Mass.) 523
59. Jackson v. LeGrange. 19 Johns. (X. Y.) (1855) ; Kayser v. Sichel, 34 Barb. (N. Y.)
386, 10 Am. Dec. 2.37 (1822); Martin v. 84 (1861); Gaines v. Scott, 7 Ohio Cir. Ct.
Bowie, 37 S. C. 102, 15 S. E. 736 (1892). 447, 4 Ohio Cir. Dec. 673 (1892) ; 5 Chamb.,
60. Cooper v. O'Brien, 98 Ga. 773, 26 S. E. Ev., 3518, n. 4.
470 (1896) ; White v. Wood. 8 Cush. (Mass.) 65. Brigham v. Palmer, 3 Allen (Mass.) 450
413 (1851) ; Jackson v. Vandyke, 1 N. J. L. (1862) ; Hodnett v. Smith, 2 Sweeny (N. Y.)
28 (1890): Jackson v. Le Grange, supra; 5 401, 41 How. Pr. 190, 10 Abb. Pr. N. S. 86
Chamb., Ev , 3517, n. 2. (1870); 5 Chamb., Ev.. 3518, n. 5. Com-
61. Burke v. Miller, 7 Cush. (Mass.) 547 pare Bowling v. Hax, 55 Mo. 446 (1874);
(1851); Tarrant v. Ware, 25 X. i. 425 Garrett v. Hanshue, 53 Ohio St. 482, 42 N. E.
(1862) -. Clarke v. Dunnavant, 10 Leigh (Va.) 256, 35 L. R. A. 321 (1895).
13 (1839). 67. Thompson v. Wilkinson, 9 Ga. App. 367,
62. Ellis v. Doe, 10 Ga. 253 (1851) ; Kin- 71 S. E. 678 (1911) ; Whitaker v. Salisbury,
ney v. Flynn, supra; 5 Chamb., Ev., 3518, 15 Pick. (Mass.) 534 (1834); 5 Chamb., Ev.,
n. 2. 3519, n. 1.
1101
PRIVATE DOCUMENTS AND WRITINGS.
850
genuine. 08 It will, ordinarily, be sufficient, to warrant the admission of the
writing in evidence, if the witness testifies that he saw it executed and sub-
scribed his name as witness." 9 The identification by the witness of the signa-
ture as his, coupled with further testimony to the effect that, being genuine, it
would not be there unless it had been placed there by him under the proper
conditions, will satisfy the requirements imposed. 70 Whether the evidence is
sufficient to authorize the admission of the document is a matter of adminis-
tration for the presiding judge. 71
1101. Instruments Executed Under a Power. 72 Lf a person claims to act,
in the execution of an instrument, under some authority as the representative
of another, it may very properly be required that some satisfactory proof tend-
ing to show that authority should be given. 73 Where a deed purports to be
executed by one as administrator or executor 74 or as guardian, 75 it must be
shown, to the satisfaction of the presiding judge, that the person by whom the
writing is thus executed possessed the requisite authority to so act, otherwise it
will be rejected.
Corporation Deeds and Writings. In the case of a deed executed by one
68. Buchanan v. Simpson Grocery Co., 105
Ga. 393, 21 S. E. 105 (1898); Duckwall v
Weaver, 2 Ohio 13 (1825); Northrop v. Co-
lumbian Lumber Co., 186 Fed. 770, 108 C. C.
A. 640 (1911); 5 Chamb., Ev., 3519, n. 2.
69. Holtzclaw v. Miley, 172 Ala. 15, 55 So.
150 (1911) ; Dawson v. Callaway 18 Ga. 573
(1855) ; 5 Chamb., Ev... 3519. n. 4.
70. Robinson v. Brennan, 115 Mass. 582
(1874); Cheston v. Wilson, 2 Neb. (CnofF.)
674, 89 N. W. 764 (1902) ; Hall v. Luther, 13
Wend (N. Y.) 491 (1835); 5 Chamb., Ev.,
3519, n. 5 Where an attesting witness to
a will cannot remember all the circumstances
of attestation they may be proved by cir-
cumstantial evidence. So evidence is suffi-
cient that the testator came into the room
where the witnesses were with a pen and
ink and sat down to a table and then went
out to show that the testator signed in their
presence and before they did. Re Carey,
56 Colo. 77, 136 Pac. 1175, 51 L R. A. (N. S.)
927 (1913). Where an attesting witness to
a will has lost his eye-sight so he cannot
identify his signature it is sufficient if he
testifies that the will was signed and the other
witnesses identify the signatures and all three
testify to the execution of the will in due
form. Reynolds v Sevier, 165 Ky. 58, 176
S. W. 961, L. R. A. 1915 E 593 (1915).
Absence of witnesses. The statutory rule
requiring that a will must be proved by all
the attesting witnesses is of necessity dis-
pensed with when the production of all is im-
possible because one or more may be beyond
he jurisdiction of the court or are dead or
insane or otherwise incompetent. In that
case the handwriting of the absent ones may
be proved. Wells v. Thompson, 140 Ga. 119,
78 S. E. 823, 47 L. R. A. (N. S.) 722 (1913).
71. Carruth v. Bayley, 14 Allen (Mass.)
532 (1867).
72. 5 Chamber layne, Evidence, 3520-
3526.
73. La Plante v. Lee, 83 Ind. 155 '1882).
Campbell v. Alkahest Lyceum System, 10
Ha. App. 839, 74 S. E. 443 (1912); Gray
v. Gillilan, 15 111. 453, 60 Am. Dec. 761
(1854); Chaffee v. Blaisdell, 142 Mass. 538,
8 N. E. 435 (1886) ; 5 Chamb., Ev., 3520,
n 1. Such power may be presumed after a
lapse of thirty years. Tucker v. Murphy, 66
Tex. 356, 1 S. W. 76 (1886). But not in
the absence of all proof of the existence of
the power and its loss or destruction. House
v. Brent, 69 Tex. 27. 7 S. W. 65 (1895).
74. La Plante v. Lee, 83 Ind. 155 (1882) ;
Chapman v. Crooks, 41 Mich. 595, 2 N. W.
924 (1879) ; Riley v. Pool, 5 Tex. Civ. App.
346. 24 S. W. 85 (1893) ; 5 Chamb., Ev.,
3521, n. 1.
75. House v. Brent, supra; 5 Chamb., Ev.,
3523, n. 1.
851
POWERS.
1101
as president, 76 or agent, 77 or by the officers 78 of a corporation, if the corporate
seal is attached, a presumption arises that the proper authority to execute it
existed, 71 * it not being necessary that, in the nrst instance, evidence of authority
should be shown/" Likewise, iii the case of a bill of sale executed by the vice-
president,* 1 or of any instrument executed by the corporate officers. 82 A similar
rule has also been applied in the case of a deed executed by a mayor pro tern-
pore, under the corporate seal of a municipal corporation. 83 In the absence,
however, of a corporate seal to an instrument, purporting to bind the corpora-
tion, authority to execute the writing must be shown. 84 The recital, in the
deed, of authority will not be considered as any evidence of its existence. 85
Official Sale Under Authority of Decree and Execution. A sheriff's 86 au-
thority in executing a deed, in pursuance of an alleged decree of court, should
be shown, in order to render the writing admissible, unless by statute this is
not required/ 7 A similar rule prevails ni case of deeds executed by other
officers under the same asserted power, 88 as, for instance in the case of a deed
given by a public official to a purchaser at a tax sale, 89 or of a deed given by a
receiver. 90 If the object of offering the deed is to establish some collateral
fact, proof of the authority of the official to execute it will not be required. 91
76. Almand v. Equitable Mortg. Co., 113 Ga.
983, 39 S. E. 421 (1901).
77. Flint v. Clinton Company, 12 X. H.
430 (1841).
78. Campbell v. Alkahest Lyceum System,
supra; Quackenboss v. Globe & Rutgers Fire
Ins. Co., 77 App. Div. 168, 78 X. Y. Supp.
1019 ( 1902) : 5 Chamb., Ev., 3522, n. 3.
79. Trustees Canandaigua Academy v. Mc-
Kechnie, 90 X. Y. 618 (1882).
80. Gashwiler v. Willis, 33 Cal. 11, 91 Am.
Dec. 607 i 1867 i ; Springer v. Bigford, 160 111.
495, 43 X. E. 751 (1896):
81. Springer v. Bigford. supra.
82. Blackshire v. Iowa Homestead Co., 39
Iowa 624 (1874): Xational Bank of Com-
merce v. Atkinson, 8 Kan. App. 30, 54 Pac.
8 (1898) ; Tague v. John Caplice Co., 28 Mont.
51, 72 Pac. 297 (1903); 5 Chamb., Ev..
3522, n. 7.
83. Middletown Sav. Bank v. Dubuque, 19
Iowa 467 (1865). See Holder v. Yonkers, 25
Misc. 250, 55 X. Y. Supp 254 ( 1898 > .
84. Elkhart Hydraulic Co. v. Turner. 170
Ind. 455, 84 X. E. 812 (1908) ; Smith v. Guar-
antee Dental Co.. 114 X. Y. Supp. 867 (1909) ;
5 Chamb , Ev., 3522, n. 9.
85. Gashwiler v. Willis, supra.
86. Carr v. Georgia L. & T. Co.. 108 Ga.
757, 33 S. E. 190 (1899) : Bybee v. Ashby, 7
111. 151, 43 Am. Dec. 47 (1845); Bowen v.
Bell, 20 Johns. (X. Y.) 338, 11 Am. Dec.
286 (1823) ; Weyand v. Tipton, 5 Serg. & R.
(Pa.) 332 (1819) ; 5 Chamb., Ev., 3524, n.
1.
87. Bliss v. Waterbury, 27 S. D. 429, 131
X. W. 731 (1911).
88. Peterson v. Weissbein, 75 Cal. 174, 16
Pac. 769 ( 1888 ) ; McDodrill v. Pardee & Cur-
tin Lumber Co., 40 W. Va. 564, 21 S. E. 878
(1895); 5 Chamb., Ev., 3524, n. 3. An
order or decree of court directing the exe-
cution of a deed by one in whom title is vested
need not be shown where the deed expresses
a valuable consideration. Rockwell v. Brown,
58 X. Y. 210 (1873) ; 5 Chamb., Ev., 3524,
n. 3.
89. Anderson v. McCormick. 129 111. 308, 21
X. E. 803 (1889) ; Lessee of Carlisle v. Long-
worth, 5 Ohio 368 (1832) ; Reusens v. Law-
son, 91 Va. 226, 21 S. E. 347 (1895); 5
Chamb., Ev., 3524, n. 4
90. Winn v. Coggins, 53 Fla. 327, 42 So.
897 (1907): Hutchinson v. Patterson, 226
Mo. 174, 126 S W. 403 (1909); 5 Chamb.,
Ev., 3524, n. 5.
91. Doe v. Roe. 32 Ga. 448 (1861) : Bolles
v. Beach, 22 X. J. L. 680. 53 Am. Dec. 263
(1850): 5 Chamb., Ev., 3524, nn. 8, 9.
For other instances of relaxation of the rule,
see 5 Chamb., Ev., 3524, nn. 10, 11.
1102 PRIVATE DOCUMENTS AND WRITINGS. 852
Under Power of Attorney. A power of attorney to perform some act such
as the execution of a deed, 92 contract, 93 or other writing, 94 must be shown
where the act is asserted to have been done in pursuance of such an authority,
unless by statute such proof is dispensed with, 95 or unless in the case of a deed
it is not offered as evidence of title. 96
By Trustee. Where trustees execute a deed of corporate property, as for
instance town or city trustees 9T or a board of a corporation, 98 their authority
to so act should be shown upon proper objection by the party against whom
they are offered. The recital of authority in the deed to so act is not of itself
sufficient. 99
1102. Exceptions to Rule. 1 If, without any fault of his own, a party is
unable to prove the execution of a writing by the testimony of an attesting wit-
ness, the court will, upon satisfactory proof of such fact, permit of the use of
secondary evidence for the purpose of establishing the genuineness of the docu-
ment. 2 Thus if the witness is dead, 3 or may be so presumed, 4 or after diligent
search or, inquiry cannot be found, 5 or is beyond the seas or otherwise out of
the jurisdiction of the court, 6 or has become incompetent from interest, insan-
ity or otherwise, 7 an exception is created justifying the admission of secondary
evidence to establish the execution of the proffered document. 8 Where the
disqualifying interest was acquired by the voluntary act of the witness or by
operation of law, 9 resort may be had to proof of handwriting. Where, how-
92. Hughes v. Holliday, 3 Greene (Iowa) 4. Gaither v. Martin, 3 Md. 146 (1852);
30 (1851); Lamberton v. Windom, 18 Minn. Jackson v. Chamberlain, 8 Wend. (N. Y.)
506 (1872) ; 5 Chamb., Ev., 3525, n. 1. 620 (1832) ; 5 Chamb., Ev., 3527, n. 3.
93. Chaffee v. Blaisdell, 142 Mass. 538, 8 5. Turner v. Gates, 90 Ga. 731, 16 S. E. 971
N. E. 435 (1886). (1892); Willson v. Betts, 4 Den. (N. Y.)
94. Gray v. Gillilan, 15 111. 453, 60 Am. Dec. 201 (1847); Gallagher v. London Assur.
761 (1854). Corp., 149 Pa. 25, 24 Atl. 115 (1892); 5
95. Austin v. Townes, 10 Tex. 24 (1853). Chamb., Ev., 3527, n. 4.
96. Waco Bridge Co. v. Waco, 85 Tex. 320, 6. Mobile, etc., R.'Co. v. Hawkins, 163 Ala.
20 S. W. 137 (1892). 565, 51 So. 37 (1909); Trustees of Smith
97. Green v Barker, 47 Neb. 934, 66 N. W. Charities v. Connolly, 157 Mass. 272, 31 X.
1032 (1896) ; 5 Chamb., Ev., 3526, n. 1. E. 1058 (1892) ; New Jersey Zinc & Iron Co.
98. Gashwiler v. Willis, 33 Cal. 11, 91 Am. v. Lehigh Zinc & Iron Co., 59 N. J. L. 189,
Dec. 607 (1867). Where corporate seal is 35 Atl. 915 ( 1896) ; Richards v. Skiff, 8 Ohio
attached, see 1101, supra; 5 Chamb., Ev., St. 586 (1858) ; 5 Chamb., Ev., 3527, n. 5.
3522. 7. Haynes v. Rutter, 24 Pick. (Mass.) 242
99. Gashwiler v. Willis, supra; Hancock v. (1842) ; Edwards v. Perry, 21 Barb. (N. Y.)
Whybark. 66 Mo. 672 (1877). 600 (1855); Kinney v. Flynn, 2 R. I. 319
1. 5 Chamberlayne, Evidence, 3527- (1852) ; 5 Chamb., Ev., 3527. n. 6.
3532. 8. Bowser v. W T arren, 4 Blackf. (Ind.)
2. Job v. Tebbetts, 10 111. 376 (1848); 522 ( 1838) ; Brynjolfson v. Northwestern Ele-
Jewell v. Chamberlain, 41 Neb. 254, 59 N. W. vator Co., 6 X. D. 450. 71 N. W. 555, 66 Am.
784 ( 1894) . St. Rep. 612 ( 1897) ; 5 Chamb., Ev., 3527, n.
3. McVicker v. Conkle, 96 Ga. 584, 24 S. E. 7.
23 (1895) ; Gallagher v. Delargy, 57 Mo. 29 9. Saunders v. Ferrell, 23 N. C. 97 (1840).
(1874) ; Borst v. Empire, 5 N. Y. 33 (1851) ;
5 Chamb., Ev., 3527, n. 2.
853 EXCEPTIONS. 1102
ever, the incompetency of the witness has been caused by the act of the party
offering the document in evidence, it seems that evidence of handwriting will
not be received. 10 Where a writing is executed out of the State, it will be
presumed that the witnesses are non-residents and evidence will be admitted
to establish the genuineness of their signatures. 11 Where the witness is be-
yond the jurisdiction of the court in which the instrument is offered in evi-
dence, the courts will, as a general rule, require proof tending to show some-
thing more than a mere casual or temporary absence, before the introduction of
secondary evidence will be permitted. 12 The fact that the witness is so located
is the material factor, which makes the particular case an exception to the gen-
eral rule and authorizes the admission of secondary evidence. 13 The rule will
not apply in case it appears that there was any fraud or collusion on the part of
the proponent in procuring the absence of the witness, 14 or if the exercise of
the required degree of diligence in endeavoring to locate a witness is not satis-
factorily shown. 15
Mode of Proof. Where the testimony of the attesting witness or witnesses
is unavailable, the usual mode which has been adopted by the courts is to admit
evidence to establish the genuineness of the signatures of the person or persons
so signing. 16 Where there are several subscribing witnesses, the fact must be
satisfactorily established that the testimony of all of them is unavailable ; 1T
otherwise secondary evidence will not be admitted. If it should appear that
the witness, at the time of subscribing his name and at the time of the trial,
was, by reason of interest, incompetent, the genuineness of the instrument may
be established by proof of the handwriting of the obligor. 18 Ordinarily, it will
be sufficient to prove the handwriting of one witness 19 where, in case there are
other signatures, the absence of all the signers i& explained to the satisfaction
10. Edwards v. Perry, supra. Homer v. Wallis, 11 Mass. 308 (1814) ; Dun-
11. Mobile, etc., R. Co. v. Hawkins, supra; bar v. Marden, supra; Borst v. Empie, 5 N.
McMinn v. Whelan. 27 Cal. 300 (1865); Val- Y. 33 (1851); Clark v. Boyd, 2 Ohio 56
entine v. Piper, 22 Pick. (Mass.) 85, 33 Am. (1825) ; Merck v. Merck, 89 S. C. 347, 71 S. E.
Dec. 715 (1839) ; Boswell v. First Nat. Bank, 969 (1911) ; 5 Chamb., Ev., 3528, n. 1.
16 Wyo. 161, 92 Pac. 624, 93 Pac. 661 (1907) ; 17. Kelsey v. Hammer, 18 Conn. 311
5 Chamb., Ev., 3527, n. 10. (1847); Gelott v. Goodspeed, 8 Cush. (Mass.)
12. Gaither v. Martin, 3 Md. 146 (1852); 411 (1851).
Harrel v. Ward, 2 Sneed (Tenn.) 610 (1855) ; 18. Packard v. Dunsmore, 11 Cush. (Mass.)
5 Chamb., Ev., 3527, n. 11. 282 (1853) ; Mackrell v. Wolfe, 104 Pa. 421
13. Harris v. Cannon, 6 Ga. 382 (1849). (1883). Incompetency of such a character
How far beyond the jurisdiction of the court arising subsequent to the date of execution
he may be is immaterial. Emery v. Twombly, will effect no change in the mode of proof.
17 Me. 65 (1840). Likewise the fact that Keefer v. .Zimmerman, 22 Md. 274 (1864);
the residence of the witness is known. Dun- Tinnin v. Price, 31 Miss. 422 (1856) ; 5
bar v. Marden, 13 N. H. 311 (1842). Chamb., Ev., 3528, n. 4.
14. Clark v. Sanderson, 3 Binn. (Pa.) 192, 19. McVicker v. Conkle, supra; Gelott v.
5 Am. Dec. 368 (1810). Goodspeed, supra; Borst v. Empie, supra;
15. Grover v. Coffee, 19 Fla. 61 (1882); Clark v. Boyd, supra; Sanborn v. Cole, 63 Vt.
Silverman v. Blake, 17 Wis. 213 (1863). 590, 22 Atl. 716 (1891); 5 Chamb., Ev.,
16. Mobile, etc., R. Co. v. Hawkins, supra; 3529, n. 3.
1102 PRIVATE DOCUMENTS AND WETTINGS. 854
of the court. Upon the introduction of such proof the genuineness of the in-
strument is prima facie established. 20
Signature of Maker. There is some authority for the view that proof of
the signature of the party by whom the writing was executed will also be re-
quired, 21 in addition to proof of the signature of the subscribing witness. This
is not, however, the general rule, it ordinarily being sufficient to prove the sig-
nature of one witness. 22 Should such testimony not be sufficiently satisfactory
and the court require that some additional proof shall be adduced, it may be
necessary to prove the handwriting of the party executing the instrument. 23
Such other proof, generally of the handwriting of the obligor, will also be re-
quired to establish the execution of the writing where there is no evidence to
prove the signature of the attesting witness. 24
Where Attesting Witness Unavailable. Upon the question of whether,
where no attesting witness is available, resort may be had to proving the hand-
writing of the maker, without adducing any evidence tending to establish the
signature of an attesting witness, there is much conflict. 25 In many jurisdic-
tions the rule that proof must first be made of the handwriting of the witness is
strictly adhered to and no evidence tending to establish that of the maker will
be received, unless the genuineness of the witness's signature can not first be
satisfactorily established. 26 This rule, however, has not received the universal
approval of the courts and the reasons underlying it have been questioned, even
in some jurisdictions which have felt bound by its inflexibility. 27 In other
jurisdictions the rule has been departed from to allow proof of the maker's sig-
nature, where -the witness has used a mark in signing, upon the theory that
there is nothing distinctive about the signature, in such a case, to warrant proof
20. Servis v. Nelson, 14 N. J. Eq. 94 (1861). & R. (Pa.) 215 (1820) ; 5 Chamb., Ev., 3530,
21. Harris v. Patten, 2 La. Ann. 217 n. 4.
(1847); Smith v. Stanley, 114 Va. 117, 75 25. Boswell v. First Nat. Bank, 16 Wyo.
S. E. 742 (1912). Proof of the signature of 161 (1907); Clark v. Sanderson, 3 Binn.
the obligor, in addition to that of the sub- (Pa.) 192 (1810).
scribing witness, has in many cases been re- 26. Gould v. Kely, 16 N. H. 551 (1845);
ceived as satisfactory proof of execution. Jackson v. Waldron, 13 Wend. (N. Y.) 178
Gelott v. Goodspeed, supra; Dunbar v. Mar- (1834) ; North Penn Iron Co. v. International
den, supra; Irwin v Patchen, 164 Pa. 51, 30 Lithoid Co., 217 Pa. 538, 66 Atl. 860 (1907) ;
Atl. 436 (1894) ; Adams v. Norris, 25 How. 5 Chamb., Ev., 3531, n. 2. This ruling is
(U. S.) 353, 16 L. ed. 539 (1859) ; 5 Chamb., based upon the theory of the witness being
Ev., 3530, n. 1. In none of these cases, a preappointed or preferred one, presumed to
however, does it appear that the proof of the be conversant with the facts surounding the
former's signature was required as a prerequi- execution of the instrument, and that his
site to admission of the writing in evidence. testimony is the highest and best evidence
22. See note 14, supra. which it is possible to procure. When such
23. Newsom v. Luster, 13 111. 175 (1851) ; witness is unavailable then proof of his sig-
Boswell v. First Nat. Bank, supra; 5 Chamb., nature becomes the best and resort must be
Ev., 3530, n. 3. had thereto. Clark v. Boyd, 2 Ohio 56
24. McPherson v. Rathbone, 11 Wend. (N. (1825).
Y.) 96 (1833); Miller v. Carothers, 6 Serg. 27. Newsom v. Luster, 13 111. 175 (1851).
855
EXCEPTIONS.
1102
of handwriting. 28 Also some courts have permitted such proof where the in-
strument was one to which no attesting witness was required. 29 In still other
jurisdictions the rule in this respect is openly repudiated and where the witness
is unavailable proof is allowed, in the first instance, of the handwriting of the
maker. 30
Ancient Documents. An exception to the rule requiring that attested writ-
ings shall be proved by the testimony of the subscribing witness exists in the
case of ancient documents, which, as stated elsewhere, 31 are regarded as prov-
ing themselves, in so far as their execution is concerned, since the witnesses are
presumed to be dead.
28. Watts v. Kilburn, 7 Ga. 356 ( 1849 ) ;
Carrier v. Hampton, 33 N. C. 307 (1850);
Gilliam v. Perkinson, 4 Rand. (Va.) 325
(1826).
29. Sherman v. Champlain Transp. Co.,
31 Vt. 162 (1858).
30. McMinn v. Whelan, 27 Cal. 300 (1865) ;
Jones v. Roberts, 65 Me. 273 (1876); Trus-
tees of Smith Charities v. Connolly, 157 Mass.
272, 31 N. E. 1058' (1892) ; Chator v. Bruns-
wick-Balke Collender Co., 71 Tex. 588, 10 S.
W. 250 (1888) ; 5 Chamb., Ev., 3531, n. 7.
In these cases the conclusion is based upon
the view that the signature of the maker
is what gives the instrument its legal force,
that the object towards which the proof is
directed is the genuineness of such signature
and that, therefore, this being the primary
inquiry, evidence tending to establish the
handwriting of the maker is to be preferred
to that tending to prove the signature of a
witness. In the former case the evidence
tends directly to establish the validity of the
instrument by proving the genuineness of the
signature of the maker, while, in the latter,
this fact is established by inference only.
Dismukes v. Musgrove, 7 Mart. N. S. (La.)
58 (1828).
31. See Chap. 57, infra.
CHAPTER LVII.
ANCIENT DOCUMENTS.
Ancient documents; admissible without proof of execution, 1103.
writings within rule; copies, 1104.
private writings, 1105.
deeds, 1106.
public documents, 1107.
1103. Ancient Documents; Admissible Without Proof of Execution. 1 The
rule that a writing must he authenticated as genuine, as being in fact that which
it purports to he, does not apply in the case of ancient documents, 2 that is those
which are thirty years of age or over. In this class of cases a presumption in
favor of the genuineness of the writing arises where it is shown to have been in
existence for the period designated, is free from suspicion by reason of altera-
tion or otherwise and comes from the proper custody. 3 The reasons under-
lying this rule are the difficulty, if not impossibility, after such a period, of
procuring witnesses to documents which are of that age or of proving their
handwriting and, in the case of deeds, that a possession, or an exercise of owner-
ship thereunder, is calculated to give authenticity to them. 4
1. 5 Chamberlayne, Evidence, 3533- S.) 630 (1912). Where a deed is more than
3538. thirty years old and the possession of the
2. Brannan v. Henry, 175 Ala. 454, 57 So. locus has been consistent with its terms the
967 (1912) ; Stevens v. Smoker, 84 Conn. 569, deed proves itself on the theory that the wit-
80 Atl. 788 (1911); Stalford v. Goldring, nesses are supposed to be dead. This prin-
197 111. 156, 64 N. E. 395 (1902); Whitman ciple applies to an executrix's deed and it
v. Shaw, 166 Mass. 451, 44 N. E 333 (1896) ; will be presumed that the executrix had au-
Anderson v. Cole, 234 Mo. 1, 136 S. W. 395 thority to sign the deed although the records
(1910); National Commercial Bank v. Gray, to prove this are lost. Wilson v. Snow, 228
71 Hun 295, 24 N. Y. Supp. 997 (1893); U. S. 217, 57 L. ed. 807, 33 Sup. Ct. Rep.
Mineral R. & M Co. v. Auten, 188 Pa. 568, 41 487, 50 L. R. A. (N. S.) 604 (1913).
Atl. 327 (1898) ; Dickinson v. Smith, 134 In an ancient deed a recital of heirship is
Wis. 6, 114 N. W. 133 (1907) ; 5 Chamb., Ev., sometimes competent when followed by long
3533, n. 1. possession and acquiescence, which shows a
3. Coleman v. Bruch, 132 App. Div. 716, recognition of such heirship. But recitals in
117 N. Y. Supp. 582 (1909). In some in- a deed are not ordinarily admitted against a
stances a document not even that old has been stranger and so a recital of heirship in a mod-
received. Allison v. Little, 85 Ala. 512, 5 ern deed is not to be admitted in a title suit
So. 221 (1888) ; 5 Chamb., Ev., 3534, n. 2. between strangers. Dyer v. Marriott, 89 Kan.
Where all the parties are dead a commis- 515, 131 Pac. 1185, 45 L. R. A. (N. S.) 93
eioners' deed may be received in evidence to (1913).
prove the facts stated in it where the deed is 4. Wilson v. Betts, 4 Den. (N. Y. ) 201
over forty years old. McGinnis v. Caldwell, (1847) ; Duncan v. Beard, 2 Nott & McC. (S.
71 W. Va. 375, 76 S. E. 834, 43 L. R. A. (N. C.) 400 (1820). Such documents are, in con-
856
S57
ADMISSIBILITY.
1103
Administrative Requirements; Absence of Suspicion. An instrument of-
fered in evidence as an ancient document must be free from suspicion 5 or, as
it has been expressed, " on inspection, it must exhibit an honest face." 6 If it
is apparent that the instrument is a forgery it will be rejected; T the same re-
sult will also follow in the case of any material alteration, 8 a most frequent
instance of which is in respect to the . date 9 in order to bring it within the
ancient document rule. The alteration alone is said to be a circumstance tend-
ing to show fraud. 10
Proof of Age. The existence of the document for the period of time neces-
sary to make it an ancient document, within the meaning of the rule, must be
established to the satisfaction of the presiding judge. 11 Direct evidence is not
essential ; circumstantial evidence may be equally satisfactory. 12 The date of
the document although by no means controlling, 13 is a factor of much weight to
be considered as bearing upon that question. 14 The date of an endorsement
upon the instrument, or of a paper attached thereto, may also be considered in
this connection. 15
sequence thereof, regarded as proving their
own execution, that is, to the extent of dis-
pensing with proof of that fact, even though
an attesting witness may be known to be
alive at the time. Shaw v. Pershing, 57 Mo.
416 (1874) ; Jackson v. Christman, 4 Wend.
(N. Y.) 277 (1830) ; 5 Chamb., Ev., 3535,
n. 2. In this class of cases the presumption
arises that, after thirty years, the attesting
witnesses are no longer alive, McReynolds
v. Longenberger, 57 Pa. St. 13 (1868) ; Lunn
v. Scarborough, 6 Tex. Civ. App. 15, 24 S.
W. 846 (1894); such presumption being
adopted as a rule of practical convenience.
Settle v. Allison, 8 Ga. 201, 52 Am. Dec. 393
(1850); Winn v. Patterson, 9 Pet. (U. S.)
663, 9 L. ed. 266 (1835). The instrument
offered must be relevant. King v. Watkins,
98 Fed. 913 (1899).
5. Jordan v. McClure Lumber Co., 170 Ala.
289, 54 So. 415 (1911) ; West v. Houston Oil
Co., 56 Tex. Civ. App. 341, 120 S. W. 228
(1909).
6. Hill v. Xisbet, 58 Ga. 586 (1877). If
it does not fulfill this requirement, further
evidence explaining and eliminating all sus-
picious circumstances will be required. Wis-
dom v. Reeves, 110 Ala. 418, 18 So. 13 (1895) ;
Morgan v. Tutt, 52 Tex. Civ. App. 301, 113
S. W. 958 (1908).
7. Albright v. Jones, 106 Ga. 302, 31 S. E.
761 (1898); Chamberlain v. Torrance, 14
Grant Ch. (U. C.) 181 (1868).
8. McConnell v. Slappey 134 Ga. 95, 67 S. E.
440 (1909) ; Herrick v. Malin, 22 Wend. (N.
Y.) 388 (1839). See Ridgeley v. Johnson,
11 Barb. (N. Y.) 527 (1851) ; 5 Chamb., Ev.,
3536, n. 5.
9. Wisdom v. Reeves, supra.
10. Hill v. Nisbet, supra.
11. Whitman v. Heneberry, 73 111. 109
(1874) ; Clark v. Owens, 18 N. Y. 434 (1858) ;
Wright v. Hull, 83 Ohio St. 385, 94 N. E. 813
(1911); West v. Houston Oil Co., supra; 5
Chamb., Ev., 3537, n. 1. The age at the
time the writing is offered in evidence, com-
puting from its date, determines its admissi-
bility. Gardner v. Granniss, 57 Ga. 539
(1876); Reuter v. Stuckart, 181 111. 529, 54
X. E. 1014 (1899); Wright v. Hull, supra;
Ardoin v. Cobb (Tex. Civ. App. 1911), 136
S. W. 271. But see Jackson v. Blanshan, 3
Johns. (N. Y.) 292, 3 Am. Dec. 485 (1808).
12. Bentley v. McCall, 119 Ga. 530, 46 S.
E. 645 (1903). Thus the old, worn and dis-
colored appearance of the writing may be a
circumstance tending to establish its age.
Enders v. Sternbergh, 1 Keyss (N. Y.) 264,
33 How. Pr. 464 (1864).
13. Whitman v. Heneberry, supra; Fairly
v. Fairly, 38 Miss. 280 (1859).
14. Enders v. Sternbergh, supra; West v.
Houston Oil Co., supra.
15. Brigden v. Green, 80 Ga. 737, 7 S. E.
97 (1888) ; Fairly v. Fairly, supra; Holt v.
Maverick, 5 Tex. Civ. App. 650, 23 S. W. 751
(1893).
1104, 1105
ANCIENT DOCUMENTS.
858
Must Have Come From Proper Custody. It must appear, to the satisfac-
tion of the court, to have come from the proper custody, thus creating a reason-
able presumption of its gennineness. 16 It need not necessarily come from the
best and most proper place of deposit, 17 since there may be several places which
may be reasonable and proper and will satisfy the requirement. 18 If the pos-
session was a proper and lawful one ; 19 if shown to have a legitimate origin,
or the circumstances are such as to render such an origin probable, it is suf-
ficient. 20 This principle is illustrated in numerous decisions. 21
1104. [Ancient Documents]; Writings Within Rule; Copies. 22 A copy of
a private writing, which has been lost, may, upon satisfactory proof that it is an
ancient document, within the meaning of that term, be admitted in evidence
the same as the original instrument itself would be. 23 A certified 24 or an ex-
emplified, 25 or examined copy of an ancient instrument, which has been re-
corded, has been frequently received, 26 without proof of execution, 27 even
though the failure to produce the original is not explained, 28 unless it appears
that the original was not properly placed upon the record. 29
1105. [Ancient Documents] ; Private Writings. 30 The rule permitting of
the introduction of instruments in evidence, as ancient documents, is more par-
is. Williamson v. Mosley, 110 Ga. 53, 35
S. E. 301 (1899); Whitman v. Heneberry,
supra; Peterson v. Bauer, 83 Neb. 405, 119
N. W. 764 (1909) ; Martin v. Rector, 24 Hun
(N. Y.) 27 (1881); Wright v. Hull, supra;
McReynolds v. Longenberger, supra; 5
Chamb., Ev., 3538, n. 1.
17. Doe v. Pearce, 2 Moo. & Rob. 240
(1839) ; Doe v Keeling, 11 Q. B. 884, 12 Jur.
433, 17 L. J. Q. B. 199, 63 E. C. L. 884
(1848); 5 Chamb, Ev., 3538, n. 3.
18. Doe v. Eslava, 11 Ala. 1028 (1847);
Flores v. Hovel (Tex. Civ. App. 1910), 125
S. W. 606.
19. Whitman v. Shaw, 166 Mass. 451, 44
N. E. 333 (1892) ; Havens v. Sea-Shore Land
Co., 47 N. J. Eq. 365, 20 Atl. 497 (1890).
20. Whitman v. Shaw, supra; Nicholson v.
Eureka Lumber Co., 156 N. C. 59, 72 S. E.
86 (1911).
21. Bell v. Brewster, 44 Ohio St. 690, 10 N.
E. 679 (1887) ; Lewis v. Lewis, 4 Watts & S.
(Pa.) 378 (1842) ; Burns v. U. S., 160 Fed.
631, 87 C. C. A. 533 (1908) ; 5 Chamb, Ev.,
3538, n. 7.
22. 5 Chamberlayne, Evidence, 3539-
3540.
23. Hamilton v. Smith, 74 Conn. 374, 50
Atl. 884 (1902) ; Gibson v. Poor, 21 N. H. 440
(1850) ; 5 Chamb., Ev., 3539, n.
24. New York, etc., R. Co. v. Benedict, 169
Mass. 262, 47 N. E. 1027 (1897); Com. v.
Alburger, 1 Whart. (Pa.) 469 (1836); Ru-
dolph v. Tinsley (Tex. Civ. App. 1912), 143
S. W. 209; 5 Chamb., Ev., 3540, n. 1.
25. Duffield v. Brindley, 1 Rawle (Pa.) 91
(1828).
26 Little v. Downing, 37 N. H. 355 (1858).
27. Woods v. Bonner, 89 Tenn. 41], 18 S. W.
67 (1890). Compare Chatman v. Hodnett,
127 Ga. 360, 56 S. E. 439 (1906).
28. Rowletts v. Daniel, 4 Munf. (Va.) 473
(1815). Compare Crispen v. Hannavan, 72
Mo. 548 (1880).
29. Settegast v. Charpiot (Tex. Civ. App.
1894), 28 S. W. 580 See Hoddy v. Harry-
man, 3 Har. & M. (Md.) 581 (1797). There
would of course be a much stronger reason
for the use of a cop} 7 as proof, if it is shown
that the proponent is unable to produce the
original, as where it is lost or destroyed.
Berry v. Raddin, 11 Allen (Mass.) 577
(1866). See Dodge v. Gallatin. 130 X Y.
117, 29 N. E. 107 (1891); 5 Chamb., Ev.,
3540, n 7.
30. 5 Chamberlayne, Evidence. 3541-
3544.
859 PEIVATE. 1105
ticularly applicable to those of a private nature, as to which it is general in its
scope. 31
Necessity of Corroborative Proof; Evidence of Possession. It is not the ap-
parent lapse of time alone which renders such instruments admissible. 32 There
should be further proof introduced, tending to establish the fact that it has
actually been in existence for that period of time or sufficient to raise a pre-
sumption to that effect ; 33 that the instrument was actually executed at the
time it purports to be. 34 This requirement is ordinarily satisfied in the case
of a deed, will, or other writing conveying an interest in real property by
proof that the writing has been accompanied by possession of the property, 35
title to which is evidenced by the instrument in question. The general rule
seems to be that it will be sufficient, if proof of possession for a part of the time
is supplemented by other evidence, all of which, taken together, satisfactorily
shows the authenticity of the writing. 30
Evidence Oilier Than of Possession. Although there is some authority for
the doctrine that evidence of possession accompanying the document is abso-
lutely essential, 37 yet, in the absence thereof, proof by means of other evidence
is, however, frequently employed, 38 and will be sufficient, where it is of such a
character as to lead to a belief in the genuineness of the instrument. 39 Thus
evidence of an entry for the purpose of a resurvey, 40 of the payment of taxes 41
and of other acts indicative of ownership, 42 and showing actual enjoyment
though not direct proof of possession 43 and the like, has been regarded as suf-
31. Goodwin v. Jack, 62 Me. 414 (1872); Y. 478 (1871); Wilson v. Simpson, 80 Tex.
King v. Little, 1 Cush. (Mass.) 436 (1848); 279, 16 S. W. 40 (1891); 5 Chamb., Ev.,
Layton v. Kraft, 111 App. Div 842, 98 X. Y. 3542, n. 7.
Supp. 72 (1906) ; Bell v. Brewster, 44 Ohio 37. Clark v. Wood. 34 X. H. 447 (1857) ;
St. 690, 10 X. E. 679 ( 1887) : McReynolds v. Northrop v. Wright, 7 Hill (X. Y.) 476
Longenberger, supra; Magee v. Paul (Tex. (1844) ; 5 Chamb., Ev., 3542, n. 1.
Civ. .App. 1913), 159 S. W. 325: 5 Chamb., 38. White v. Farris, 124 Ala. 461, 27 So.
Ev. : 3541, n. 1. 251) (1899) ; Pridger v. Green, 80 Ga. 737, 7
32. Havens v. Sea Shore Land Co., 47 X 1 . S. E. 97 (1888); Cunningham v. Davis, 175
J. Eq 365, 20 Atl. 497 (1890) ; Ridgeley v. Mass. 213, 56 N. E. 2 (1899) ; Martin v. Rec-
Johnson, 11 Barb. (X. Y.) 527 (1851 ). tor, 24 Hun (X. Y.) 27 (1881) ; Xicholson v.
33. Fairly v. Fairly, 38 Miss. 2SO (1859) ; Eureka Lumber Co., 156 X. C. 59, 72 S. E.
Fogal v. Pirro, 10 Bosw. (X. Y.) 100 (1862); 86 (1911); Walker v. Walker, 67 Pa. 185
Clark v. Owens, 18 X. Y. 434 (1858). (1870) : 5 Chamb., Ev., 3543. n. 2.
34. Brown v. Wood, 6 Rich. Eq. (S. C.) 39. Havens v. Sea-Shore Land Co., supra;
155, 171 (1853). Harlan v. Howard, 79 Ky. 373 (1881) ; Fairly
35. Reuter v. Stuckart, 181 111. 529 (1899) : v. Fairly, supra.
Buttrick, Petitioner. 185 Mass. 107, 69 X. E. 40. Duncan v. Beard, 2 Xott & McC. (S. C.)
1044 (1904); Rollins v. Atlantic City R. 400 (1820K
Co., 73 X. J L. 64, 62 Atl. 929 (1905); 41. Sloss-Sheffield Steel & I. Co. v. Lollar,
Enders v. Sternbergh, supra: Wilson v. Snow, 170 Ala. 239, 54 So. 272 (1910) ; Reuter v.
228 U. S 217, 33 S. Ct. 217, 57 L. ed. 807 Stuckart, supra ; 5 Chamb., Ev., 3543, n. 5.
(1912) ; 5 Chamb., Ev., 3542, n. 4. 42. Malcomson v. O'Dea. 10 H. L. Cas 593,
36. Reuter v. Stuckart, supra; Xixon v. 9 .Tur. X. S. 1135, 11 Eng. Reprint 1155
Porter, 34 Miss. 697 (1858) ; Homer v. Cilley, (1863).
14 N. H. 85 (1843) ; Cahill v. Palmer, 45 N. 43. Boston v. Richardson, 105 Mass. 851
(1870).
1106 ANCIENT DOCUMENTS. SCO
ficient to authorize the admission of the document in evidence, where, in other
respects, it satisfies the requirements relating to ancient documents. 44 As
against an adverse claimant, however, who has been and is in possession of land,
an instrument offered as an ancient deed has been rejected. 45
Effect of Irregularities in Execution or Recording. An irregularity in the
execution of a writing will not, necessarily, be a sufficient ground for its rejec-
tion, 46 unless it should appear that it was of such a character as to defeat the
legal effect and operation of the instrument, 47 in which case, it will of course be
rejected, since the rule does not operate to give validity to a writing invalid on
its face. 48 A similar conclusion has been reached where the writing is not
properly entered of record, 49 or is not recorded as required. 50
1106. [Ancient Writings]; Private Writings; Deeds. 51 One of the most
frequent instances in which the rule is applied is in the case of deeds 52 and
other instruments affecting title to or interest in real property. 53 Where a
deed is shown to satisfy the requirements of the rule as to ancient documents, a
recital therein may be received in evidence as proof of the fact stated, 54 even
in a proceeding between strangers ; 55 in the absence of some statute which
may be controlling. 56
Executed Under a Power.- Where a deed, which has apparently been exe-
cuted by one under a power, appears to have been executed thirty or more years
prior to the time it is offered in evidence, it will be received as an ancient
document, without proof of the authority under which it was executed ; in such
a case the existence of the power will be presumed. 57 Where, however, it ap-
44. Stalford v Goldring, 197 111. 156, 64 Petitioner, supra; Anderson v. Cole, 234 Mo.
N. E. 395 (1902). 1, 136 S W. 395 (1910) ; Coleman v. Burch,
45. Davidson v. Morrison, 86 Ky. 397, 9 Ky. 132 App. Div. 716, 117 N. Y. Supp. 582
L. Rep. 629, 5 S. W. 871, 9 Am. St. Rep. 295 (1909) ; Wilson v. Snow, supra; 5 Chamb.,
(1887). Ev., 3545, n. 1.
46. McConnell Bros. v. Slappey, 134 Ga. 53. Jordan v. McClure Lumber Co., 170 Ala.
95, 67 S. E. 440 (1909) ; Bradley v. Lightcap, 289, 54 So. 415 (1911) ; Boston v. Richard-
201 111. 511, 66 N. E. 546 (1903) ; Hudson v. son, 105 Mass. 351 (1870) ; Dodge v. Gallatin,
Webber, 104 Me. 429, 72 Atl. 184 (1908) ; 5 130 N. Y. 117, 29 N. E. 107 (1891) ; 5 Chamb.,
Chamb., Ev., 3544, n. 1. Ev., 3545, n. 2.
47. O'Neil v. Tennessee Coal, I. & R. Co., 54. Hathaway v. Evans, 113 Mass. 264
140 Ala. 378, 37 So. 275 (1903). (1873); Russell v. Jackson, 22 Wend. (N.
48. Id.; Meegan v. Boyle, 19 How. (U. S.) Y.) 277 (1839); Jackson v. Gunton, 26 Pa.
130, 15 L. ed. 577 (1856). Super. Ct. 203 (1904) ; 5 Chamb., Ev., 3545,
49. Jordan v. Cameron, 12 Ga. 267 (1852) ; n. 3.
Jackson v. Laroway, 3 Johns. Cas. (N. Y.) 55. Deery v. Cray, 5 Wall. (U. S.) 795, 18
283 (1803). L. ed. 653 (1866).
50. Broussard v. Guidry, 127 La. 708, 53 56. Gwin v. Calegaris, 139 Cal. 384, 73
So. 946 (1911); Mackey v. Armstrong, 84 Pac. 851 (1903). Deeds, however, from those
Tex. 159, 19 S. W. 436 (1892) ; 5 Chamb., Ev., who are found to have neither title nor pos-
3544, n. 5. session are not entitled to serious considera-
51. 5 Chamberlayne, Evidence, 3545, tion in support of a claim of ownership.
3546. McMahon v. Stratford, 83 Conn. 386, 76 Atl.
52. Sloes-Sheffield Steel & L Co. v. Lollar, 983 (1910).
supra; Stalford v. Goldring, supra; Buttrick 57. Reuter v. Stuckart, 181 111. 529 (1899);
861
PUBLIC.
1107
pears that the power was exercised in pursuance of a decree of court, 58 or that
the writing conferring the power was one which was entered of record, 59 the
rule then seems to be that some evidence showing the existence of the power
will be required. But where it appears that the record has been lost or de-
stroyed and proof thereof cannot be made, the existence of the power may then
be presumed. 60 And in case of mere formalities, preliminary to a sale by one
acting under authority of law, it is presumed that the things necessary to be
done were in fact done. 61
1107. [Ancient Documents] ; Public Documents. 62 The rule permitting the
introduction of ancient documents has, in some cases, been applied to public
documents and writings. 63 The general principle, however, controlling the
admission of such instruments, regardless of their date, is as stated elsewhere,
that they are made by accredited public officials, in the performance of their
public duties, and that they are produced from the proper official custody.
Goodhue v. Cameron, 142 App. Div. 470, 127
N. Y. Supp. 120 (1911); Wilson v. Snow,
228 U. S. 217, 33 S. Ct. 217, 52 L. ed. 807
(1913) ; 5 Chamb., Ev., 3546, n. 1.
58. Fell v. Young, 63 111. 106 (1872);
Green v. Blake, 10 Me. 16 (1833).
59. Tolman v. Emerson, 4 Pick. (Mass.)
156 (1827).
60. Giddings v. Day, 84 Tex. 605, 19 S. W.
682 (1892).
61. Winkley v. Kaime, 32 N. H. 268
(1855) ; Pendleton v. Shaw, 18 Tex. Civ. App.
439, 44 S. W. 1002 (1898) ; 5 Chamb., Ev.,
3546, n. 5.
62. 5 Chamberlayne, Evidence, 3547.
63. Enfield v. Ellington, 67 Conn. 459, 34
Atl. 818 (1896) ; Pells v. Webquish, 129 Mass.
469 (1880) ; Sanger v. Merritt, 120 X. Y. 109,
24 N. E. 386 (1890); Bell v. Brewster, 44
Ohio St. 690, 10 N. E. 679 (1887) ; 5 Chamb.,
Ev., 3547, n. 1.
CHAPTER LVIII.
PAROL EVIDENCE RULE.
Parol evidence rule; general statement of, 1108
private documents, 1109.
exceptions; collaterial agreements; instrument incomplete, 1110.
delivery incomplete or conditional, 1111.
duress fraud or fraudulent representations, 1112.
illegality, 1113.
incapacity, 1114.
interpretation and explanation; evidence admissible for pur-
poses of, 1115.
modification or rescission subsequent to execution, 1110.
mistake, 1117.
parties; identification of, 1118.
unauthorized signing, 1119.
public records, 1120.
1108. Parol Evidence Rule; General Statement of. 1 Parol evidence is in-
admissible to vary, alter, control or contradict the terms of a written instru-
ment, in an action founded upon such writing, between the parties or privies
thereto. 2 This is what is known as the parol evidence rule, long recognized
and applied at common law, and or\e which has proved to be full of many dif-
ficulties in its application by the courts. Whether it is a rule of evidence or
one of the substantive law has been the subject of some discussion. Whatever
may have been the intention of the parties, the substantive law forbids, subject
1. 5 Chamberlayne, Evidence, 3548, (1903); Sigafus v. Porter, 84 Fed. 430. 28
3549. C*. C. A. 443 (1898) -. Van Winkle v. Crowell,
2. Bryan v. Idaho Quartz Mini Co., 73 Cal. 146 U. S. 42, 36 L. ed. 880, 13 S. Ct, 18
249, 14 Pa. 859 (1887); Forsyth Mfg. Co. v. (1892) : Buty v. Murray. 24 Can. S. C. 77
Castlen, 112 Ga. 199, 37 S. E. 485 (1900); (1894); 5 Chamb., Ev.j 3548, n. 1. Parol
Chambers v. Prewitt, 172 111. 615, 50 X. E. qualifications of written contracts. See note,
145 (1898) ; Wentworth v. Manhattan Market Bender, ed., 153 X-JfJvZfi.
Co., 216 Mass. 374. 103 X. E. 1105 (1914) : Notice is incidental matter not covered by
Hapke v. Davidson, 180 Mich. 138, 146 X. the rule. Parol evidence of the mailing and
W. 624 (1914) ; Outcult Advertising Co. v. contents of a notice sent is not excluded by
Barnes, 176 Mo. App. 307. 162 S. W 631 the parol evidence rule where the notice is a
(1914) ; Finck v. Bauer, 40 Misc. 218, 81 mere collateral matter and not the subject
N. Y. Supp. 625 (1903) ; Tuttle v. Burgett, matter of the litigation. Holloman v. South-
53 Ohio St. 498, 42 X. E. 427 (1895) : Cam- ern R Co. 172 X. C. 372, 90 S. E. 292, L. R. A.
ble v. Pviley, 39 Okl 363, 135 Pac. 390 (1913) ; 1917 C 416 (1916).
Fuller v. Law, 207 Pa. 101, 56 Atl. 333
862
863
RULE STATED.
1108
to certain exceptions hereinafter considered, that resort may be had to any
extrinsic evidence, in order to ascertain it. The instrument is regarded as
expressive of the actual agreement or, intention of the parties and as controll-
ing, when the question of their intention is raised. 3 This general rule of ex-
clusion has been applied by the courts to assignments, 4 bills of sale, 5 bonds, 6
compromises, 7 contracts, 8 contracts of sale, 9 deeds, 10 leases, 11 letters constituting
3. Barney v. Indiana R. Co., 157 Ind. 228,
61 X. E. 194 (1901); Congower v. Equitable
Mut. L. & Endow. Ass'n, 94 Iowa 499, 72
X. W. 416 (1895) ; Citizens Bank v. Brigham,
61 Kan. 727, 60 Pac. 754 (1900) : McCabe v.
Swap, 14 Allen (Mass.) 188 (1867); Ameri-
can Surety Co. v. Thurber, 121 N. Y. 655, 23
X. E. 1129 (1890) ; 5 Chamb., Ev., 3548, n.
2.
4. Hard wick v. McClurg, 16 Colo. App.
354, 65 Pac. 405 ( 1901 ) ; Enright v. Franklin
Pub. Co., 24 Misc. 180, 52 X. Y. Supp. 704
(1898) ; Turner v. Utah Title Ins. & Trust
Co., 10 Utah 61, 37 Pac. 91 (1894) ; 5 Chamb.,
Ev., 3548, n. 1.
5. Geiser Mfg. Co. v. Davis, 110 Ark. 449,
162 S. W. 59 (1914); Wheaton Roller Mill
Co. v. Xoye Mfg. Co., 66 Minn. 156, 68 X. W.
854 (1896); Watson v. Roode, 30 Xeb. 264,
46 X. W. 491 (1890) ; Kinney v. McBride, 88
App. Div. 92, 84 X. Y. Supp. 958 (1903);
McQuaid v. Ross, 77 Wis. 470. 46 X. W. 892
(1890) : 5 Chamb., Ev.. 3548, n. 1.
6. Vann v. Lunsford, 91 Ala. 576, 8 So.
719 (1890) ; Whitney v. Slayton, 40 Me. 224
(1855); Worthington v. Bullitt, 6 Md. 172
(1854) ; Speirs Fish Co. v. Robbins, 182 Mass.
128, 65 X. E. 25 (1902) ; Montana Min. Co.
v. St. Louis Min. & Mill. Co., 20 Mont. 394, 51
Pac. 824 (1898); American Surety Co. v.
Thurber, supra: Frey v. Heydt, 116 Pa. 601,
11 Atl. 535 (1887) ; 5 Chamb., Ev., 3548, n.
1.
7. Calhoun v. Lane, 39 La. Ann. 594, 2 So.
219 (1887): McTague v. Finnegan, 54 X. J.
Eq. 454, 35 Atl. 542 (1896) ; Parker v. Mor-
rill, 98 X. C. 232, 3 S. E. 511 (1887) : Bonsack
Mach. Co. v. Woodrum, 88 Va. 512, 13 S. E.
994 (1891) : 5 Chamb., Ev., 3548, n. 1.
8. Diamond v. Tay, 23 Cal. App. 506. 138
Pac. 933 (1914) ; Hildreth v. Hartford M. &
R. Tramway Co., 73 Conn. 631. 48 Atl. 963
(1901); Bank of Lavonia v. Bush, 140 Ga.
594, 79 S. E. 459 (1913): Zickert v. Times
Square Automobile Co., 181 111. App. 676
(1914) : Corbin v. Milward, 158 Ky. 308. 164
S. W. 974 (1914) ; Williams v. Xew York Life
Ins. Co., 122 Md. 141, 89 Atl. 97 (1914);
Ennis v. Wright, 217 Mass. 40, 104 X. E.
430 (1914): Axe v. Tolbert, 179 Mich. 556,
146 X. W. 418 (1914) ; Allen v. Oneida. 210
X. Y. 496, 104 X. E. 920 (1914) ; Miller Bros.
v. McCall Co., 37 Okl. 634, 133 Pac. 183
(1913); Pollock v. Cohen, 32 Ohio St. 514
(1877) ; 5 Chamb., Ev., 3548, n. 1,
9. Xeal v. Flint, 88 Me. 72, 33 Atl. 669
(1895) : Dean v. Washburn & Morn Mfg. Co.,
177 Mass. 137, 58 X. E. 162 (1900); Well-
man v. O'Connor-Martin Co., 178 Mich. 682,
146 X. W. 289 (1914); Coats v. Bacon, 77
Miss. 320, 27 So. 621 (1899) ; Lillis v. Mertz,
89 App. Div. 289, 85 X. Y. Supp. 800 (1903) ;
Monnett v. Monnett, 46 Ohio 30, 17 X. E. 659
(1888) ; Coman v. Wunderlich, 122 Wis. 138,
99 X. W. 612 (1904); Stickney v. Hughes,
12 Wyo. 397, 75 Pac. 945 ( 1903 ) ; 5 Chamb.,
Ev.. 3548, n. 1.
10. Poage v. Rollins & Sons, 24 Colo. App.
537, 135 Pac. 990 (1913) ; Gam v. Cordrey, 4
Pennew. (Del.) 143, 53 Atl. 334 (1902);
Drew v. Wiswall, 183 Mass. 554, 67 X. E. 666
(1903) : Pascal v. Slavin, 144 X. Y. Supp. 354
(1913) : Patterson v. Lamson, 45 Ohio St. 77,
12 X. E. 531 (1887); Miller v. Miller, 17
Or. 423, 21 Pac. 938 (1889) ; Clark v. Greg-
ory. 87 Tex. 189. 27 S. W. 56 (1894) ; In re
Perkins Estate, 65 Vt. 313, 26 Atl. 637
( 1 893 ) : Martmyer v. Everly, 73 W. Va. 88,
79 S. E. 1093 (1913) ; 5 Chamb., Ev., 3548,
n. 1.
11. Tietjen v. Snead, 3 Ariz. 195, 24 Pac.
324 (1890): University Club v. Deakin, 182
111. App. 484 (1914) : Walker Ice Co. v. Amer-
ican Steel & Wire Co., 185 Mass. 463, 70 X.
E. 937 (1904) ; Rollins Engine Co. v. Eastern
Forge Co., 73 X. H. 92. 59 Atl. 382 (1904) ;
Equitable Life Assur. Soc. of U. S. v. Schum,
40 Misc. 657, 83 X. Y. Supp. 161 (1903);
Howard v. Thomas, 12 Ohio St. 201 (1861) ;
Williams v. Ladew. 171 Pa. 369. 33 Atl. 329
(1895) : Richmond Ice Co. v. Crystal Ice Co.,
103 Va. 465, 49 S. E. 650 (1905) ; 5 Chamb.,
Ev., 3548, n. 1.
1109
PABOL EVIDENCE RULE.
864
a contract, 12 mortgages, 13 partnership agreements, 14 releases, 15 subscriptions
for corporate stock, suretyship, etc. 17 It has been construed by the United
States Supreme Court as being in force in Porto Kico and has been held to
apply to a mortgage executed there in 1885. 18
1109. Private Documents. 19 It is upon the theory of a merger in the
writing of all previous negotiations and that the parties have embodied therein
their final and complete agreement, that the rule is founded. 20 The writing,
subject to certain exceptions hereinafter considered, becomes conclusive upon
them. To permit the reception of parol evidence would, in the intendment of
law, defeat the very object to be accomplished by reducing the agreement to a
written form. 21
Not Conclusive Against Strangers. If an agreement contains something
not intended, or omits some terms which should have been inserted, the parties
thereto and their privies are, nevertheless, bound thereby. The rule, however,
does not extend further in its operation so as to include strangers to the agree-
12. Davis v. Fidelity Fire Co., 208 111. 375,
70 N. E. 359 (1904) ; Cook v. Shearman, 103
Mass. 21 (1869); Northwestern Fuel Co. v.
Bruns, 1 N. D. 137, 45 N. W. 699 (1890) ; 5
Chamb., Ev., 3548, n. 1.
13. Patterson v. Taylor, 15 Fla. 336
(1875); Southwick v. Hapgood, 10 Cush.
(Mass.) 119 (1852); Gage v. Phillips, 21
Nev. 150, 26 Pac. 60, 37 Am. St. Rep. 494
(1891) ; Bowery Bank v. Hart, 77 App. Div.
121, 79 X. Y. Supp. 46 (1902) ; In re Schihl,
179 Pa. 308, 36 Atl. 181 (1897); Goon Gan
v. Richardson, 16 Wash. 373, 47 Pac. 762
(1897) : 5 Chamb., Ev., 3548, n. 1.
14. Michigan Sav. Bank v. Butler, 98 Mich.
381, 57 N. W. 253 (1893); Spingarn v.
Rosenfeld, 4 Misc. 523, 24 N. Y. Supp. 733
(1893); Gearing v. Carroll, 151 Pa. 79, 24
Atl. 1045 (1892) ; 5 Chamb., Ev., 3548, n. 1.
15. Clark v. Mallory, 185 111. 227, 56 N. E.
1099 (1900) ; Radigan v. Johnson, 174 Mass.
68, 54 N. E. 358 (1899) ; Moore v. Missouri,
etc., R. Co., 30 Tex. Civ. App. 266, 69 S. W.
997 (1902) ; 5 Chamb., Ev., 3548, n. 1.
16. Atchison, etc., R. Co. v. Truskett, 67
Kan. 26, 72 Pac. 562 (1903); Hanrahan v.
National Bldg., etc., Ass'n, 66 N. J. L. 80, 48
Atl. 517 (1901); Davis v. Shafer, 50 Fed.
764 (1892) ; 5 Chamb., Ev., 3548, n. 1.
17. Indiana Bicycle Co v. Tuttle, 74 Conn.
489, 51 Atl. 538 (1902) ; McKee v. Needles,
123 Iowa 195, 98 N. W. 618 (1904) ; Burns v.
Limerick, 178 Mo. App. 145, 165 S W. 1166
(1914) ; Sherman v. Pedrick, 35 App. Div. 15,
54 N. Y. Supp. 467 (1898) ; Deming v. Board
of Trustees, etc., 31 Ohio St. 41 (1876) ; Di
lorio v. Di Brasio, 21 R. I. 208, 42 Atl. 1144
(1899); Traders Nat. Bank v. Washington
Water Power Co., 22 Wash. 467, 61 Pac. 152
(1900) ; 5 Chamb., Ev., 3548, n. 1.
18. Veve v. Sachez, 226 U. S. 234, 33 S.
Ct. 36, 59 L. ed. 673 (1912).
19. 5 Chamberlayne, Evidence, 3549-
3552.
20. Channel Commercial Co. v. Hourihan,
20 Cal. App. 647, 129 Pac. 947 (1913) ; Tellu-
ride Power Transmission Co. v. Crane Co.,
208 111. 218, 70 N. E. 319 (1904) ; Tjams v.
Provident Sav. L. Assur. Soc., 185 Mo. 466,
84 S. W. 51 (1904) ; Bradley & Co. v. Basta,
71 Neb. 169, 98 N. W T . 697 (1904); Van
Syckel v. Dalrymple, 32 N. J. Eq. 233 ( 1880) ;
King v. Hudson River Realty Co., 210 N. Y.
467, 104 N. E. 926 (1914): Ripy & Son v.
Art Wall Paper Mills, 41 Okl. 20, 136 Pac.
(1080); Cressy v. International Harvester
Co., 206 Fed. 29, 124 C. C. A. 163 (1913);
5 Chamb., Ev., 3549, n. 1.
21. Bass Dry Goods Co. v. Granite City
Mfg. Co., 113 Ga. 1142, 39 S. E. 471 (1901) ;
Henry School Tp. v. Meredith, 32 Ind. App.
607, 70 N. E. 393 (1903) : Morton v. Clark,
181 Mass. 134, 63 N. E. 409 (1902) ; Rough v.
Breitung, 117 Mich. 48, 75 N. W. 147 (1898) ;
Uihlein v. Matthews, 172 N. Y. 154, 64 N. E.
792 (1902); Tuttle v. Burgett, 53 Ohio St.
498, 42 N. E. 427 (1S95) : Harris v. Sharp-
less, 15 Pa. Super. Ct. 643 (1901) ; Vogt v.
Shienbeck, 122 Wis. 491, 100 N. W. 820
(1904) ; 5 Chamb., Ev., 3549, n. 2.
865
PRIVATE DOCUMENTS.
110'J
ment. 22 In their case the parol evidence rule does not apply, but they will be
permitted to go outside of the writing and show the exact transaction.
Consideration; \\lien Evidence Admissible to Show. Parties are not ordi-
narily concluded by the consideration stated in a written instrument but will
be permitted to show what in fact was the true consideration. 23 It frequently
occurs, more often in assignments, contracts of sale and deeds, that the actual
consideration is not given, but the instrument recites merely the payment of
some nominal sum. In such case a recital of payment is regarded as merely
in the nature of a receipt which, like other receipts, is not subject to the opera-
tion of the parol evidence rule. In all such cases the actual consideration
may be shown. Where, however, the statement of the consideration does not
consist of a mere recital of something paid or to be paid, but sets forth mutual
obligations in detail, which in fact constitute the terms of a contract, the ex-
clusion of extrinsic evidence tending to vary or contradict it is justified. 24
Receipts. A receipt, in so far as it does not amount to a contract and is
not an embodiment of any agreement between the parties, but is simply an
acknowledgment of payment, is regarded as merely a prima facie admission
and as not within the meaning of the parol evidence rule. 25 Xor is the situa-
22. Knudson v. Wacker & Birk Brewing &
Malting Co., 182 111. App. 296 (1914): Wil-
liams v. National Cash Register Co., 157 Ky.
836, 164 S. W. 112 (1914); Walker Ice Co.
v. American Steel & Wire Co., supra; Pfeifer
v. National Live Stove Ins. Co., 62 Minn. 536,
64 N. W. 1018 (1895) ; Barro v. Saitta, 145
N. Y. Supp. 849 (1914) ; Folinsbee v. Sawyer,
157 N. Y. 196, 51 N. E. 994 (1898) ; Clapp v.
Banking Co., 50 Ohio St. 528, 35 N. E. 308
(1893) ; Selser's Estate, 141 Pa. 529, 21 Atl.
777 (1891); Watson v. Hecla Min. Co., 79
Wash. 383, 140 Pac. 317 (1914); 5 Chamb.,
Ev., 3550, n. 1.
Rule not applicable to third parties. Pa-
rol evidence may be used to show that a bill
of sale was given to the vendee simply to hold
as agent where the property is attached by a
third party on a claim against the apparent
vendee. The parol evidence rule does not ap-
ply to third parties. Ransom v. Wickstrom.
84 Wash. 419, 146 Pac. 1041, L. R. A. 1916
A 588 and note (1915).
23. Seacord v. Seacord, 160 111. App. 328
(1912); Wabash R. Co. v. Grate, 53 Tnd.
App. 583, 102 N. E. 155 (1913) ; Shoenhair v.
Merrill, 165 Iowa 384, 145 N. W. 919 (1914) ;
Hill v. Whidden, 158 Mass. 267, 33 N. E. 526
(1893) : Kriling v. Cramer. 152 Mo. App. 431.
133 S. W. 655 (1911) ; Franklin State Bank
v. Chancy, 94 Neb. 1, 142 N. W. 537 (1913) ;
Loftus v. Benjamin, 122 N. Y. Supp. 275
(1910) ; Hodges v. Wilson, 165 N. C. 323, 81
S. E. 340 (1914) : Press Pub. Co. v. Reading
News Agency, 44 Pa. Super. Ct. 428 (1911) ;
Martin v. Hall, 115 Va. 358, 79 S. E. 320
(1913); 5 Chamb., Ev., 3551, n. 1. Oral
evidence is admissible to show the actual con-
sideration for a deed even though the effect
may be to convert the instrument from one of
bargain and sale to one of pure gift. Harman
v. Fisher, 90 Neb. 688, 134 N. W. 246, 39
L. R. A. (N. S.) 157 (1912). Parol to show
consideration for a written instrument. See
note, Bender, ed., 26 N. Y. 378. Propriety of
parol evidence as to consideration, sealed and
unsealed instruments. See note. Bender, ed.,
70 N. Y. 63.
24. Wilford v. Bliss, 174 111. App. 28
(1913); Wabash R. Co. v. Grate, supra;
Dodge v. Cutrer, 100 Miss. 647, 58 So. 208
(1912): Gill v. Ruggles, 97 S. C. 278, 81
S. E. 519 (1914) ; 5 Chamb., Ev., 3551, n. 2.
25. Bray v. Arnold. 14 ' Ga. App. 221, 80
S. E. 669 (1914); Barthwell v. Hermanson,
158 Iowa 329, 138 N. W. 1108 (1913) ; Huf-
facher's Ex'r v. Michigan Mut. L. Ins. Co.,
154 Ky. 56. 156 S. W. 1038 (1913); Mac-
Donald v. Dana. 154 Mass. 152. 27 N. E. 993
(1891) : Paddock v. Hatch, 169 Mich. 95. 134
N. W. 990 (1912) : Manse v. Hossington, 205
N. Y. 33, 98 N. E. 203 (1912) ; Komp v. Ray-
mo
PAEOL, EVIDENCE RULE.
866
tion altered by the fact that it purports to be in full of all demands. 26 A re-
ceipt may, however, be in the nature of a contract, in which case, the rule of
exclusion intervenes and forbids, the same as in other contractual writings, the
admission of any extrinsic evidence which tends to contradict or vary it. 27
Thus, where two persons close an accord and satisfaction, by a contractual re-
ceipt in writing, 28 parol evidence will not be received which tends to have this
effect.
1110. Exceptions; Collateral Agreements; Instrument Incomplete.'- 9 Evi-
dence of a prior or contemporaneous parol agreement or understanding is fre-
quently received, where it is consistent with the writing in question and it is
apparent that the instrument was not intended as a complete embodiment of the
undertaking. 30 If it was the intention of the parties that only a part of the
mond, 175 N. Y. 102, 67 N. E. 113 (1903);
Seeman v. Ohio Coal Min. Co., 22 Ohio Cir.
Ct. 311 (1901); Spittall v. Alice, 55 Pa.
Super. Ct. 636 (1914) ; Gregory v. Huslander,
227 Pa. 607, 76 Atl. 422 (1910); Seeger v.
Manitowoc Steam Works, 120 Wis. 11, 97 N.
W. 485 (1903) ; 5 Chamb., Ev., 3552, n. 1.
26. Walrath v. Norton, 10 111. 437 (1878) ;
Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548
(1885); Carpenter v. Jamison, 75 Mo. 285
(1882); Meislahn v. Irving Nat. Bank, 62
App. Div. 231, 70 N. Y. Supp. 988 (1901) ;
Tr>mby v. Andress, 175 Pa. 6, 34 Atl. 347
(1896); Fire Ins. Ass'n v. Wickham, 141 U.
S. 564, 9 L. ed. 860, 9 S. Ct. 113 (1891) : 5
Chamb., Ev., 3552, n. 2.
27. Loeb v. Flannery, 148 111. App. 471
(1909) ; Stevens v. Wiley, 165 Mass. 402, 23
N. E. 177 (1896); Sloma nv. National Exp.
Co., 134 Mich. 16, 95 N. W. 999 (1890);
Meyer v. Lathrop, 73 N. Y. 315 (1878) ; See-
man v. Ohio Coal Min. Co., supra; Milos v.
Covacevich, 40 Or. 239, 66 Pac. 914 (1901);
Wood v. Donahue, 94 Pa. 128 (1880); 5
Chamb., Ev., 3552, n. 3.
28. Richtman v. Watson, 150 Wis. 385, 136
N. W. 797 (1912).
29. 5 Chamberlayne, Evidence, 3553,
3554.
30. Webber v. Smith, 24 Cal. App. 51, 140
Pac. 37 (1914) ; Carter v. Griffin, 114 Ga. 321,
40 S. E. 290 (1901); Henry School Tp. v.
Meredith, supra; Sutton v. Weber, 127 Iowa
361, 101 N. W. 775 (1904) ; Ayer v. Bell Mfg.
Co., 147 Mass. 46, 16 N. E. 754 (1888) ; Gould
v. Boston Excelsior Co., 91 Me. 214, 39 Atl.
554, 64 Am. St. Rep. 221 (1898); Chamber-
lain v. Lesley, 39 Fla. 452, 22 So. 736 (1897) ;
Davis v. Tandy, 107 Mo. App. 437, 81 S. W.
457 (1904); Rochester Folding Box Co. v.
Browne, 55 App. Div. 444, 66 N. Y. Supp.
867 (1900), aff'd 179 N. Y. 542, 71 N. E.
1139 (1904); Alexander v. Righter, 240 Pa.
22, 87 Atl. 427 (1913); Seattle Transfer &
Taxicab Co. v. Kinney, 74 Wash. 179, 132
Pac. 1013 (1913) ; Rymer v. South Penn Oil
Co., 54 W. Va. 530, 46 S. E. 559 (1904) ; 5
Chamb., Ev., 3553, n. 1. See note, Bender,
ed., 163 N. Y. 312. Even where the deed is
silent as to the acreage and price per acre
this may be shown by parol evidence. Caugh-
ron v. Stinespring, 132 Tenn. 636, 179 S. W.
152, L. R. A. 1916 C 403 (1915).*
When contract complete. Where an order
for machinery has every essential of a con-
tract, parties, consideration, time subject-
matter, and mutual assent parol evidence is
not admissible to show that it is a mere skele-
ton. Fairbanks Steam Shovel Co. v. Holt, 79
Wash. 361, 140 Pac. 394, L. R. A. 1915 B 477
(1914). Acting under a letter containing an
offer to perform service is a sufficient accept-
ance of the contract to make parol evidence
of it inadmissible. Manufacturers' & Mer-
chants' Inspection Bureau v. Everwear Hos-
iery Co., 152 Wis. 73, 138 N. W. 624, 42 L.
R. A. (N. S.) 847 (1912). W 7 here the parties
make an oral contract and one party makes a
written memorandum of his understanding of
it this does not reduce the contract to writing
as far as he is concerned so that he cannot
testify concerning it where this version of the
contract is never accepted. Shubert v. Rosen-
berger, 123 C. C. A. 256, 204 Fed. 934, 45 L.
R. A. (N. S.) 1062 (1913).
Collateral agreement. A written agree-
ment for sale of a dentist's business can be
supplemented by evidence of an oral agree-
867
COLLATERAL AGREEMENTS.
1110
terms should be embraced in the writing, then the instrument is not one which
is brought within the protection of the rule 31 and, consequently, evidence of
the remainder of the agreement, consistent with the part which has been re-
duced to writing, is in no way a contradiction, varying or altering of the in-
strument. Evidence to supplement the writing and show the entire agree-
ment will be received, even though the evidence may be in reference to a dif-
ferent subject than that contained in the writing, 32 unless the omission is one
which will be supplied by law, in which case, parol evidence has been re-
jected. 33 Similarly, in the case of an agreement which is expressed in two or
more writings, evidence will be received to connect them, for the purpose of
showing the completed and full undertaking. 34 In all cases, however, where
such evidence is offered, the court will receive in evidence only such terms as
are consistent with the writing, 35 and where it satisfactorily appears that the
instrument was not intended as a complete expression of the agreement. 36
Thus, evidence has been rejected when offered for the purpose of showing,
where an instrument was valid and enforceable upon its face, that there was
an agreement that it should become void on the happening of a certain event. 37
To permit such evidence would render written instruments, relied upon as
the embodiment of the undertaking entered into, as of little value.
ment that the seller should not practice in
that town for live years as this is a distinct
agreement. Locke v. Murdoch, 20 X. M.
522. 151 Pac. 298, L. R. A 1917 B 267 (1915).
Contemporaneous oral contracts and written
contracts. See note, Bender, ed., 172 N. Y.
292, 304.
31. Washburn -Crosby Milling Co. v. Brown,
56 Ind. App. 104. 104 X. E. 997 (1914);
Gebber v. Western Xat. Bank, 53 Pa. Super.
Ct. 155 (1913): Wilson v. Scarboro, 163 N.
C. 380, 79 S. E. 811 (1913) ; see also cases in
last preceding note.
32. Durkin v. Cobleigh, 156 Mass. 108,
30 X. E. 474, 32 Am. St. Rep. 436, 17 L. R. A.
270 (1892): Church of Holy Communion v.
Paterson Extension R. Co , 63 N. J. L. 470,
43 Atl. 696 (1899) ; Johnson v. Kindred State
Bank, 12 X. D. 336, 96 X. W. 588 (1903) ; 5
Chamb., Ev., 3553, n. 3.
33. Driver v. Ford. 90 111. 595 (1878) : War-
ren v. Wheeler, b Mete (Mass.) 97 (1844):
Blake Mfg. Co. v Jaeger, 81 Mo App. 239
(1899) ; Boehm v Lies, 60 N. Y. Super. Ct.
436. 18 X. Y. Supp. 577 (1892); 5 Chamb.,
Ev., 3553. n. 6
34. O'Reilly v. Burns. 14 Colo. 7, 22 Pac.
1090 (1S90) : Hunt v. Frost, 4 Cush. (Mass.)
54 (1849) : Hanford v. Rogers, 11 Barb. (N.
Y.) 18 (1851); White v. Brocaw, 14 Ohio
St. 339 (1863); St. Louis, etc., R. Co. v.
Beidler, 45 Ark. 17 (1885); 5 Chamb., Ev.,
3553, n. 5.
35. Halliday v. Mulligan, 113 111. App. 177
(1903); Van Fossan v. Gibbs. 91 Kan. 866,
139 Pac. 174 (1914) ; Kelly v. Thompson, 175
Mass. 427, 56 X. E. 713 (1900) ; Jenkins v.
Springfield Reduction & Chem. Co., 169 Mo.
App. 534, 154 S. W. 832 (1913): Rochester
Folding Box Co v. Browne, supra; Seitz v.
Brewers' Refrig. Mach. Co., 141 U. S. 510,
35 L. ed. 837, 12 S. Ct. 46 (1891) ; 5 Chamb.,
Ev., 3553, n. 6.
36. Forsyth Mfg. Co. v. Castlen, 112 Ga.
199, 37 S. E. 485 (1888); Hand v. Ryan
Drug Co., 63 Minn. 539, 65 X. W. 1081
(1896): Case v. Phoenix Bridge Co., 134 X.
Y. 78, 31 N. E. 254 (1892) ; 5 Chamb., Ev.,
3553, n. 7.
37. Prouty v. Adams, 141 Cal. 304, 74 Pac.
845 (1903): Ryan v. Cooke. 172 111. 302, 50
X. E. 213 (1898); McCormick Harv. Mach.
Co. v. Market, 107 Iowa 340, 78 N. \V. 33
(1899); Torpey v Tvbo, 184 Mass. 307, 68
N. E. 223 (1903): Pratt- Whitney Co. v.
American Pneumatic Tool Co.. 50 App. Div.
369, 63 X. Y. Supp. 1062 (1900) ; Chute Co.
v. Latta, 123 Minn. 69, 142 X. W. 1048
(1913); 5 Chamb. Ev., 3553, n. 8.
Deed may be shown to be a mortgage. By
1111
PAROL EVIDENCE KULE.
868
1111. Delivery Incomplete or Conditional. 38 It is not a violation of the
parol evidence rule to admit evidence showing that the instrument never had
any binding force owing to a want of final delivery, 30 as where it was deliv-
ered to become binding upon the happening of some future event, or was de-
livered in escrow. 40 For this purpose, the admission of evidence will not be
restricted to such agreements as may have been made at the time of delivery,
but evidence of prior conversations may be received. 41 Proof of the fact that
there was never a complete and final delivery of the instrument is an establish-
ment of the fact that the writing, though ostensibly binding, was never legally
of any force or effect. 42 In case, however, of the delivery of a deed to the
grantee either by the grantor or by another with his knowledge and approval,
the vast preponderance of authority a deed U. S. 228, 14 S. Ct. 816, 38 L. ed. 698 (1894) ;
absolute on its face may be shown to be a 5 Chamb., Ev., 3554, n. 2. It is competent
mortgage by parol testimony. This principle
has been advanced by slow degrees and halt-
to show that a written order for goods was
given on an oral condition that the goods
ing steps. In some of the earlier cases it were to be sent within a certain period.
was said to be necessary to allege that the
right of redemption was omitted by fraud or
mistake. But this position was found to un-
duly shackle a principle necessary to be main-
Bowser v. Fountain, 128 Minn. 198, 150 N.
W. 795, L. K. A. 1916 B 1036 (1915). A
subscription contract which contains a con-
dition precedent may be shown to be subject
tained that fraud might not prevail or confi- to another condition that it shall not go into
dence be deceived and betrayed. Hobbs v. effect until the plaintiff should procure other
Rowland, 136 Ky. 197, 123 S. W. 11 85, L. ^subscribers who should do certain things as it
may always be shown that a contract has not
become effective. Rutherford v. Holbert, 42
Okla. 735, 14'2 Pac. 1099, L. R. A. 1915 B 221
(1914). Parol evidence is admissible to show
that a written instrument was not signed or
delivered as a concluded contract but was
delivered to be held pending the happening
of a contingency or the performance of some
condition and that subsequently such condi-
tion was not performed and therefore that
the written instrument did not actually be-
come effective as a completed contract.
American Sales Book Co. v. Whitaker, 100
Ark. 360, 140 S. W. 132, 37 L. R. A (N S.)
91 (1911).
Sham. Parol evidence is competent to
show that a written contract is only a mere
sham signed for its effect on a third party
and was never intended by the signers to be
operative. This evidence does not vary the
writing but is offered to show a collateral
circumstance which would control its opera-
tion. Coffman v. Maione, 98 Xeb. 819, 154
X. W. 720, L. R. A. 1917 B 258 (1915).
41. Wilson v. Powers, 131 Mass. 539
(1881) ; 5 Chamb., Ev., 3554, n. 3.
42. Sweet v. Stevens, 7 R. I. 375 (1863);
5 Chamb., Ev., 3554, n. 4.
R. A. 1916 B 1 (1909). But the evidence
must be clear and convincing. Johnson v.
Xational Bank of Commerce, 65 Wash. 261,
118 Pac. 21, L. R. A. 1916 B 4 (1911). Right
to show deed absolute was intended as a mort-
gage. See note, Bender, ed., 46 X. Y. 605.
Trust. Parol evidence is inadmissible to
show that a deed absolute on its face to a
church was really given in trust for a certain
purpose. Lafayette Street Church v. Xorton,
202 X. Y. 379, 95 X. E. 819, 39 L. R. A. (X.
S. ) 906 ( 1911 ) . An absolute conveyance may
not be held to have been in trust. See note,
Bender, ed., 8 X. Y. 415.
38. 5 Chamberlayne, Evidence, 3554.
39. Gray v. Blackwood, 112 Ark. 332, 165
S. W. 958 (1914) ; Xorman v. McCarthy, 56
Colo. 290, 138 Pac. 28 (1914).
40. Osby v. Reynolds, 260 111. 576, 103 X. E.
556 (1914) ; Cedar Rapids Xat. Bank v. Carl-
son, 156 Iowa 343, 136 X. W. 659 (1912);
Bartholomew v. Fell. 92 Kan. 64, 139 Pac.
1016 (1914) ; Elastic Tip Co. v. Graham, 185
Mass. 597, 71 X. E. 117 (1904) ; Mendenhall
v. Ulrich, 94 Minn. 100, 101 X. W. 1057
(1905); Xiblock v. Sprague, 200 X. Y. 390.
93 X. E. 1105 (1911); Brown v. Willis, 13
Ohio 26 ( 1844) ; Gamble v. Riley, 39 Okl. 363,
135 Pac. 390 (1913) ; Burke v. Dulaney, 153
869
DURESS; FRAUD.
1112
the delivery is regarded as absolute and no extrinsic evidence will be received
to show that it was in any way qualified or conditional. 43 So, where a party
executes and delivers an instrument, such as a note for instance, and receives
a valuable consideration therefor, he will not be permitted to shown an agree-
ment to the effect that payment should never be enforced or demanded. 44
1112. Duress; Fraud or Fraudulent Representations. 45 Parol evidence of
the facts and circumstances attending the execution of an instrument is prop-
erly admissible where it is alleged, by a party thereto, that he signed it under
duress. 40 Such evidence is not a violation of the parol evidence rule. Where
one of the parties has, by any fraud or misrepresentation on his part, induced
another to enter into an agreement, the innocent party is not concluded by the
language used but will be permitted to introduce extrinsic evidence of any
prior or contemporaneous negotiations, acts or the like, 47 tending to show the
43. Moury v. Heney, 86 Cal. 471, 25 Pac.
17 (1890) ; Omaha & Grant Sm. & R. Co. v.
Taber, 13 Colo. 41, 21 Pac. 925 (1889) ; Chi-
cago Pressed Steel Co. v. Clark, 87 111. App.
658 ( 1899 ) ; Rathbun v. Rathbun, 6 Barb. (N.
Y.) 98 (1849); Byars v. Byars, 11 Tex. Civ.
App. 565, 32 S. W. 925 (1895): 5 Chamb.,
Ev., 3554, n. 5. In an action of covenant on
a warranty in a deed parol evidence is not a"d-
missible to prove that at the time the deed
was delivered the grantee agreed to take sub-
ject to an outstanding lease, Mandler v.
Starks, 35 Okla. 809, 131 Pac. 912, L. R. A.
1916 E 213 (1913), or to pay outstanding as-
sessments; Williams v. Johnson, 177 Mich.
500, 143 N. W. 627, L. R. A. 1016 E 217
(1913); Hardage v. Durrett, 110 Ark. 63,
160 S. W. 883m L. R. A. 1916 E 211 ( 1913) ;
as such evidence would contradict the deed
itself.
44. Western Carolina Bank v. Moore, 138
X. C. 529. 51 S. C. 79 (1905). The de-
fence is incompetent that a note was to be
paid only on a contingency even in an action
by the payee Colvin v. Goff, 82 Or. 314. 161
Pac. 5<>, L. R. A. 1917 C 300 (1916). Evi-
dence may be offered of a contemporaneous
parol agreement entered into at the time cer-
tain rent notes were signed that they were to
be binding only so long as possession con-
tinued. This shows a separate parol agree-
ment which was to be a part of the contract.
Martin v. Mask, 158 X. C. 436, 74 S. E. 343,
41 L. R. A. (X. S.) (541 (1912).
45. 5 Chamberlayne, Evidence, 3555,
3556.
46. Hick v Thompson, 90 Cal. 289, 27 Pac.
208 (1891); Linkswiler v. Hoffman, 109 La.
948, 34 So. 34 (1903); Mills v. Young, 23
Wend. (X. Y.) 314 (1840); Heeter v. Glas-
gow, 79 Pa. 79 (1875); 5 Chamb., Ev.,
3555, n. 1.
47. Swayne v. Felici, 84 Conn. 147, 79 Atl.
62 (1911); Pallister v. Camenisch, 21 Colo.
App. 79, 121 Pac. 958 (1912) -. Briggs v. Rey-
nolds, 176 111. App. 420 (1913); Moore v.
Harmon, 142 Ind. 555, 41 X. E. 599 (1895) ;
Doylestown Agricultural Co. v. Brackett,
Shaw & Lunt Co., 109 Me. 301, 84 Atl. 146
(1912); Trambly v. Ricard, 130 Mass. 259
(1881); Blanchard v. Ridgeway, 179 Mich.
491, 146 X. W. 139 (1914) ; State v. Cass, 52
X. J. L. 77, 18 Atl. 972 (1889); Mayer v.
Dean, 115 X. Y. 556, 22 X. E. 261. 5 L. R. A.
540 (1889) : Fairbanks v. Simpson (Tex. Civ.
App.) 28 S. W. 128 (1894): 5 Chamb.. Ev.,
3556, n. 1. Application of rule stated in
text to.
Contracts: Jones v. Grieve, 15 Cal. App.
561, 115 Pac. 333 (1911); Provident Sav. L.
Assur. Soc. v. Shearer, 151 Ky. 298, 151 S.
W. 938 (1912): Meland v. Youngberg, 124
Minn. 446, 145 N. W. 167 (1914);
State v. Lovan, 245 Mo. 516, 151 S. W. 141
(1912) : Mayer v. Dean, supra; Atherholt v.
Hughes. 209 Pa. 156, 58 Atl. 269 (1904);
Tevis v. Ryan, 233 U. S. 273, 34 S. Ct. 481, 58
L. ed. 957 (1914) ; 5 Chamb., Ev., 3556, n.
1.
Deeds: McCormick v. Smith. 127 Ind. 230,
26 X. E. 825 (1890): Eckler v. Alden, 125
Mich. 215, 84 X. W. 141 (1900) : Van Alstyne
v. Smith, 82 Hun 382, 31 X. Y. Supp. 277
(1894) ; Cutler v. Roanoke, R. & L. Co., 128
1113, 1114 PAKOL EVIDENCE KULE. 870
exercise of fraud or misrepresentation by the other party, in the procuring of
his signature to the writing. Such evidence, although it may contradict the
terms of the instrument, is in all cases admissible and will be received, not only
as a defense to an action on the undertaking, but in a proceeding where the
active aid of the tribunal is invoked. 48
1113. Illegality Instruments executed for an illegal object will not be
enforced by legal tribunals. The law recognizes no rights, as created by such
writings, and will, in all cases, permit proof of their illegality. 49 Evidence of
any prior conversations, negotiations or the like will be received for the purpose
of establishing such fact and its admission in no manner can be regarded as
infringing upon the parol evidence rule, Thus where it is asserted that the
agreement is tainted with usury evidence is admitted tending to show its in-
validity on this ground. 50 But evidence will not be received of a parol con-
temporaneous usurious agreement, where the usury is not contained in the
writing itself. 51 Nor will a stranger to the writing be permitted to avoid it
on this ground. 52
1114. Incapacity. It is essential to the validity of an instrument that a
person, by whom it is executed, shall be possessed of the requisite legal capacity,
otherwise the courts will not enforce it against him. Therefore it may always
be shown, in a proceeding to enforce a writing, that the defendant was in-
capacitated at the time he signed it. 53 Thus, in the case of a writing executed
by a woman, it may be shown that she was, owing to her being married at the
time, incapacitated to act in the particular matter. 54 Similarly, a party has
N. C. 477, 39 S. E. 30 (1901); Cover v. Parol evidence is always admissible to show
Mannaway, 115 Pa. 330, 8 Atl. 393 (1886) ; 5 that a contract apparently valid on its face
Chamb., Ev., 3556, n. 1. is really void as for an illegal purpose. Man-
48. McLean v. Clark, 47 Ga. 24 (1872) ; ufacturers' etc., Bureau v. Everwear Hosiery
Turner v. Turner, 44 Mo. 535 (1869) ; Bar- Co., 152 Wis. 73, 138 N. W. 624, 42 L. R. A.
nard v. Roane Iron Co., 85 Tenn. 139, 2 S. (N. S.) 847 (1912).
W. 21 (1886) ; 5 Chamb., Ev., 3556, n. 2. 50. Roe v. Kiser, 62 Ark. 92, 34 S. W. 534
Right to prove alteration of contract by (1896); McGuire v. Campbell, 58 111. App.
parol. See note, Bender, ed., 163 N. Y. 312. 188 (1*894); Lewis v. Willoughby, 43 Minn.
The same rule relative to admissibility of 307, 45 N. W. 439 (1800): Mudgett v. Goler.
parol evidence with relation to written con- 18 Hun (X. Y.) 302 (1879) ; Jackson v.
tracts in equity as at law except in case of Kirby, 37 Vt. 448 (1865) ; 5 Chamb., Ev.,
fraud. See note, Bender, ed., 12 N. Y. 565. 3557, n. 2.
49. Smith v. Crockett Co., 85 Conn. 282, 82 51. Allen v. Turnham, 83 Ala. 323, 3 So.
Atl. 569 (1912); McNamara v. Georgia Cot- 854 (1887).
ton Co., 10 Ga. .App. 669, 73 S. E. 1092 52. Reading v. Weston, 7 Conn. 409 (1829).
(1912) ; Tyler v. Tyler, 126 111. 525, 21 N. 53. Leblanc v. Bouchereau, 16 La. Ann. 11
E. 616 ( 1888) ; Clemens Electrical Mfg. Co. v. ( 1861 ) .
Walton, 173 Mass. 286, 52 N. E. 132, 53 N. 54. Waters v. Pearson, 39 App. D. C. 10
E. 820 (1890) ; Wheeler v. Metropolitan Stock (1913); Lackey v. Boruff, 152 Ind. 371, 53
Exch., 72 N. H. 315, 56 Atl. 756 (1903); N. E. 412 (1898); Comings v. Leedy, 114 Mo.
Martin v. Clarke, 8 R. I. 389, 5 Am. Rep. 454, 21 S. W. 804 (1892) ; Linderman v. Far-
586 (1866); 5 Chamb., Ev., 3557, n. 1. quharson, 101 N. Y. 434, 5 N. E. 67 (1886);
871
CONSTRUCTION.
1115
been permitted to show his infancy, 55 or that he was mentally incompetent, 50
or incapacitated by reason of intoxication, 57 at the time he executed the writ-
ing. Such evidence is in no way objectionable to the parol evidence rule, as it
simply tends to show that the writing had no legal inception.
1115. Interpretation and Explanation; Evidence Admissible for Purposes Of.
- Parol evidence is properly admitted, as an aid in the interpretation of a
writing or for the purpose of explanation. 58 This rule has been applied by
the courts to contracts, 59 contracts of sale, 60 deeds, 61 letters constituting a
contract, 02 and mortgages. 03 If the intention of the parties is obscure, it is
the duty of the tribunal to receive parol evidence tending to show their actual
intention in the execution of the instrument. 04
Bradley Fertilizer Co. v. Caswell, 65 Vt. 231,
26 All. 950 (1893) ; 5 Chamb., Ev., 3558, n.
2.
55. Buzzell v. Bennett, 2 Cal. 101 (1852);
Des Moines Ins. Co. v. Mclntire. 99 Iowa 50,
68 N. W. 565 (1896) ; 5 Chamb., Ev., 3558,
n. 3.
56. Wiley v. Ewalt, 66 111. 26 (1872):
Mitchell v. Kingman, 5 Pick. (Mass.) 431
(1827) : Hosier v. Beard, 54 Ohio St. 398, 43
N. E. 1040 (1896) ; 5 Chamb., Ev., 3558, n.
4.
57. Taylor v. Purcell, 60 Ark. 606, 31 S.
W. 567 (1895); Phelan v. Gardner, 43 Cal.
306 (1872); Burroughs v. Richman, 13 X. J.
L. 233, 23 Am. Dec. 717 (1832); 5 Chamb.,
Ev., 3558, n. 5.
58. Tyssowski v. Smith Co., 23 App. D. C.
403 (1911); Alexander v. Capitol Lumber
Co., 181 Ind. 527, 105 X E. 45 (1914) ; White
v. Shippee, 216 Mass. 23, 102 X. E. 948
(1913) ; Germain v. Central Lumber Co., 116
Mich. 245, 74 X. W. 644 (1898); Tilden v.
Tilden, 8 App. Div. 99, 40 X. Y. Supp. 403
(1896) ; Masters v. Freeman, 17 Ohio" St. 323
(1867) ; Cohee v. Turner & Wiggins, 37 Okl.
778, 132 Pac. 1082 (1913) ; Easton Power Co.
v. Sterlingworth R. S. Co., 22 Pa. Super. Ct.
538 (1903) ; Miller v. Spring Garden Ins. Co.,
202 Fed. 442, 120 C. C. A. 548 (1913);
5 Chamb., Ev., 3559, n. 1.
59. Gould v. Magnolia Metal Co., 207 111.
172, 69 X. E. 896 (1904) ; Lennox v. Murphy,
171 Mass. 370, 50 X. E. 644 (1898) : Allen v.
Armstrong, 58 App. Div. 427, 68 X. Y. Supp.
1079 (1901); Proctor v. Snodgrass, 5 Ohio
C. C. 547 (1891): Donthett v. Ft. Pitt Gas
Co., 202 Pa. 416, 51 Atl. 981 (1!)02) : Moore
v. Waco Bldg. Ass'n. 9 Tex. Civ. App. 404, 28
S. W. 1093; 5 Chamb., Ev., 3559, n. 1.
60. Brown v. Doane, 87 Ga. 32, 12 S. E. 179
(1890); Couller Mfg. Co. v. Dodge Grocery
Co., 97 Iowa 616, 66 X. W. 875 (1896);
Laclede Const. Co. v. Moss Tie Co., 185 Mo.
25, 84 S. W. 76 (1904) ; Emmett v. Penoyer,
151 N. Y. 564, 45 X. E. 1041 (1896): Ex-
celsior Wrapper Co. v. Messinger, 116 Wis.
549, 93 X. W. 459 (1903) ; 5 Chamb., Ev.,
3559, n. 1.
61. Mason v. Merrill, 129 111. 503, 21 y.
E. 799 (1889); Scaplen v. Bland, 187 Mass.
73, 72 X. E. 346 (1904) ; Freeman v. Moffitt,
119 Mo. 280, 25 S. W. 87 (1893) ; Perrior v.
Peck, 167 X. Y. 582, 60 X. E. 1118 (1901) ; 5
Chamb., Ev., 3559, n. 1.
62. Gould v. Magnolia Metal Co., supra;
Butler v. Iron Cliffs Co., 96 Mich. 70, 55 X.
W. 670 (1893) ; Barney v. Forbes, 118 X. Y.
580, 23 X. E. 890 (1890) ; Foster v. Dicker-
son, 64 Vt. 233, 24 Atl. 253 ( 1891 ) ; 5 Chamb.,
Ev., 3559, n. 1.
63. Wise v. Collins, 121 Cal. 147, 53 Pac.
640 (1898) ; Finks v. Hathaway, 64 Mo. App.
186 (1895); Eager v. Crawford, 76 X. Y. 97
(1879) ; 5 Chamb., Ev.. 3559, n. 1.
64. Ruiz v. Dow, 113 Cal. 490, 45 Pac.
867 (1896) ; Callender, McAuslan & Troup Co.
v. Flint, 187 Mass. 104, 72 X. E. 345 (1904) ;
Bowery Bank of Xew York v. Hart, 37 Misc.
412, 75 X. Y. Supp. 781 (1902): Thomas
Mach. Co. v. Voelker, 23 R. I. 441, 50 Atl.
838 ( 1901 ) ; 5 Chamb., Ev.. 3559, n. 2.
Parol evidence to aid construction of written
contract. See note, Bender, ed., 193 X. Y.
379. Acts, circumstances and conversations
are admissible on construction of contract.
See note. Bender, ed.. 49 X. Y. 391, 49 X. Y.
464. Right to give parol evidence on con-
struction of written contract. See note,
Bender, ed., 47 X. Y. 221. Admissibilitv of
1115
PAROL EVIDENCE EULE.
872
What Evidence is Admissible. In all cases the court will endeavor to ascer-
tain, and give effect to, the true meaning of the instrument and evidence of
prior negotiations and conversations between the parties may be received, 65
their purpose in executing the instrument may in some cases be shown 66 and
resort may also be had to the circumstances surrounding the transaction, that
the court may more intelligently construe the undertaking and, if possible, give
it effect according to the real intention, which impelled the parties to its execu-
tion. 67 Thus in the case of a latent ambiguity the court will receive evidence
of this character. 68 In all cases, however, the presiding judge will be guided
by the principles of the substantive law, which decrees that the instrument is
to be regarded as the final embodiment of the agreement of the parties and will
be careful to exclude all evidence which, offered under the guise of an aid in
the interpretation or explanation of a writing, in reality, tends to contradict,
vary or alter an instrument which is clearly expressed. 69
parol evidence to extend writing. See note,
Bender, ed., 114 N. Y. 200. Parol evidence to
aid or vary writing. See note, Bender, ed., 98
N. Y. 290. Admissibility of oral evidence to
supply or vary writing. See note, Bender,
ed., 78 N. Y. 85. When parol evidence is per-
missible even though contract is in writing.
See note, Bender, ed., 127 N. Y. 144.
Ambiguities. ' Parol evidence to solve am-
biguity. See note, Bender, ed., 143 N. Y.
626. Explaining ambiguities in written con-
tract by parol. See note, Bender, ed., 144 N.
Y. 424.
65. Gould v. Magnolia Metal Co., supra;
Proctor v. Hartigan, 139 Mass. 554, 2 N. E.
99 (1885); New York House Wrecking Co.
v. O'Rourke, 92 App. Div. 217, 86 N. Y. Supp.
1116 (1904); Colvin v. McCormick Cotton
Oil Co., (56 S. C 61, 44 S. E. 380 (1902) ;, 5
Chamb., Ev., 3560, n. 1.
66. Dreyfuss v. Union Nat. Bank, 164 111.
83, 45 N. E. 408 (1896) ; Crosby v. Delaware
& H. Canal Co., 128 N. Y. 641, 28 N. E. 363
(1891) ; First Nat. Bank v. Central Chande-
lier Co., 17 Ohio C. C. 443 (1898); Sheaffer
v. Sensenig, 182 Pa. 634, 38 Atl. 473 (1897) ;
5 Chamb., Ev., 3560, n. 2.
67. Hardwick v. McClurg, 16 Colo. App.
354, 60 Pac. 405 (1901): Gage v. Cameron,
212 111. 146, 72 N. E. 204 (1904) ; Jenkins v.
Kirtley, 70 Kan. 801, 79 Pac. 671 (1905);
Alvord v. Cook, 174 Mass. 120, 54 N. E. 499
(1899) ; Garvin Mach. Co v. Hammond Type-
writer Co., 12 App. Div. 294, 42 N. Y. Supp.
564 (1896); Masters v. Freeman, supra;
Douthett v. Ft. Pitt Gas Co., supra; 5 Chamb.,
Ev., 3560, n. 3. Application of rule stated
in text to deeds: Baker v. Clark, 128 Cal. 181,
60 Pac. 677 (1900) ; White v. Rice, 112 Mich.
403, 70 N. W. 1024 (1897); Kinney v.
Hooker, 65 Vt. 333, 26 Atl. 690 (1892); 5
Chamb., Ev., 3560, n. 3.
68. Tumlin v. Perry, 108 Ga. 520, 34 S. E.
171 (1899) : Thomas v. Troxel. 26 Ind. App.
322, 59 N. E. 683 (1900) ; 5 Chamb., Ev.,
3560, n. 4.
69. Eberhardt v. Federal Ins. Co., 14 Ga.
App. 340, 80 S. E. 856 (1914); Alvord v.
Cook, supra ; State v. Board of Com'rs of Cass
County, 60 Neb. 566, 83 N. W. 733 (1900);
House v. Walch, 144 N. Y. 418, 39 N. E. 327
(1895); Johnson v. Pierce, 16 Ohio St. 472
(1866) ; King v. New York & Cleveland Gas
Coal Co., 204 Pa. 628, 54 Atl. 477 (1903);
5 Chamb., Ev., 3560, n. 5. The scrivener of
a will cannot be permitted to testify as to
the testator's instructions or as to what he
meant or what he himself meant. Napier v.
Little, 137 Ga. 242, 73 S. E. 3, 38 L. R. A.
(N. S.) 91 (1011). Parol evidence is ad-
missible to show that the omission of a child
from a will was intentional, under a statute
providing that if it appears that the omission
was not intentional such child shall take the
statutory share of a child. Re Motz, 125
Minn. 40, 14.3 N. W. 623. 51 L. R. A. (N. S.)
645 (1914). Parole evidence may be used
to show that a legacy to " my friend Richard
H. Simpson " was intended for his associate
Hamilton Ross Simpson and not for a man
named Richard H. Simpson who was not a
friend of the testator and had only met him
once in twenty years and then merely spoke
to him as they passed by. Siegley v. Simp-
873 USAGE. 1115
Usage. Evidence of a usage in the particular business or locality, in re-
spect to some matter, concerning which the writing is not clear or is silent,
may be received to show the actual and intended meaning of the instrument. 70
The evidence may be of a general and recognized custom of a particular trade
or business or of a particular locality. 71 It is received upon the assumption
that, where parties have entered into an agreement, any usage which prevails
in the trade, concerning which the undertaking is entered into, or in the
locality is tacitly assented to, as a part of the contract, and that the document
embraces only the special terms agreed upon and is to be construed in refer-
ence to such usage, in the absence of an expressed intention to the contrary.
If, however, such an intention is expressed, or is clearly apparent, from the
language used, such evidence will be rejected. 72
Words of Doubtful Meaning. Where a writing contains words or phrases
which are ambiguous or of doubtful meaning, or are used in a technical sense,
and which the court is unable to interpret and apply in the particular instance,
resort may be had to parol evidence of custom, usage or the like, so that the
court may understand the sense in which the particular word or words were
employed and properly apply them, in construing the writing. 73 The same
rule controls here, however, as elsewhere, viz., that the court will limit the
admission of evidence to such as is consistent with the writing and will, in no
case, permit the introduction of extrinsic evidence, where the words used have
a clear and definite meaning and are susceptible of but one interpretation. 74
eon, 73 Wash. 69, 131 Pac. 479, 47 L. R. A. Cal. 161, 74 Pac. 700 (1903) ; Shaw v. Jacobs,
(N. S.) 514 (1913). Parol evidence may be 89 Iowa 713, 55 N. W. 333 (1893); Menage
used to show whether the words " without v. Rosenthal. 175 Mass. 358, 56 N. E. 579
recourse'' written on the back of a note refer (1900) ; O'Donohue v. Leggett, 134 N. Y.
to the indorsement just above it or to that 40, 31 N. E. 269 (1892); Needy v. Western
just below it. This does not change in any Maryland R. Co., 22 Pa. Super. Ct. 489
way the character of the instrument. Gool- (1903); 5 Chamb., Ev., 3561, n. 3.
rick v. Wallace, 154 Ky. 596, 157 S. W 7 . 920, 73. Morse v. Tochterman, 21 Cal. App. 726,
49 L. R. A. (N. S.) 789 (1913). Admissibil- 132 Pac. 1055 (1913); Kirby Planing Mill
ity of parol evidence to vary written. See Co. v. Hughes, 11 Ga. App. 645, 75 S. E.
note, Bender, ed., 114 N. Y. 190; note, Bender, 1059 (1912) ; Gale v. United States Brewing
ed., 122 N. Y. 87. Co., 181 111. App. 381 (1914) ; Todd v. Howell,
70. Leavitt v. Kennicott, 157 111. 235, 41 47 Ind. App. 665, 95 N. E. 279 (1911) ; Lasar
N E.. 737 (1895) ; Lane v. Union Nat Bank, Mfg. Co. v. Pelligreen Const. & Inv. Co., 179
3 Ind. App. 299, 29 N. E. 613 (1891); De Mo. App. 447, 162 S. W. 691 (1914) ; Keller
Cernea v. Cornell, 3 Misc..241, 22 N. Y. Supp. v. Webb. 125 Mass. 88, 28 Am. Rep. 209
941 (1893) ; Hansbrough v. Neal, 94 Va. 722, (1878) ; McKee v. DeWitt, 12 App. Div. 617,
27 S. E. 593 (1897) ; 5 Chamb., Ev., 3561, n. 43 N. Y. Supp. 132 (1897) ; Quarry Co. v.
1. Custom of enlarging scope of certifica- Clements, 38 Ohio St. 587, 43 Am. Rep. 442
tion on check inadmissible. See note, Bender, (1883) ; William M. Roylance Co. v. Descalzi,
ed., 16 N. Y. 390. 243 Pa. 180, 90 Atl. 55 (1914) ; Mills Power
71. Wood v. Allen, 111 Iowa 97, 82 N. W. Co. v. Mohawk Hydro-Electric Co., 155 App.
451 (1900): Brown v. Brown, 8 Mete. Div. 869, 140 N. Y. Supp. 655 (1913) ; Berry
(Mass.) 573 (1844) ; Stillman v. Burfeind, 21 v. Williams Oil Co., 156 Wis. 588, 146 N. W.
App. Div 13, 47 N Y. Supp 280 (1897); 783 (1914); 5 Chamb., Ev., 3562, n. 1.
5 Chamb., Ev., 3561, n. 2. 74. Hildreth v. Hartford M. & R. Trans.
72. Swift v. Occidental Min. & P. Co., 141 Co., 73 Conn. 631, 48 Atl. 963 (1901) ; Davis
1116
PAEOL EVIDENCE RULE.
874
1116. Modification or Rescission Subsequent to Execution. 75 The rule ex-
cluding parol evidence to contradict or vary the terms of a written instrument
does not apply to what may be don' subsequent to the execution of the instru-
ment. If it is deemed advisable to alter, or modify the terms or to rescind
the obligation, such course may be pursued. This is a right of which parties
to instruments may avail themselves and evidence showing such action is ad-
missible, 70 and in no way infringes upon the parol evidence rule. Thus if,
after the execution of a writing the parties reconsider the matter and decide
that they will rescind the agreement into which they have entered, evidence of
the subsequent agreement may properly be received. 77 Similarly, in the case
of a subsequent agreement modifying the terms of a previous undertaking,
evidence is admissible to show in what particulars and to what extent the new
agreement modifies or alters the previous one. 78 In like manner it may be
shown that performance by one of the parties of some of the terms contained
in the writing has been waived by the other, 79 and for this purpose evidence of
facts and circumstances prior to and contemporaneous with' the execution of
the writing have been received in connection with evidence of subsequent acts. 80
In case, however, of an instrument under seal 81 or contract, agreement or other
undertaking which the law requires to be in written form, 82 evidence of any
subsequent parol modification or rescission of the instrument has been held to
be inadmissible.
v. Ball, 6 Cuah. (Mass.) ; Armstrong v. Lake
Champlain Granite Co., 147 N. Y. 495, 42
N. E. 186, 49 Am. St. Rep. 683 (1895);
Thompson v. Pruden, 18 Ohio Cir. Ct. 886
(1898); O'Connor v. Camp (Tex. Civ. App.
1913), 158 S. XV. 203; 5 Chamb., Ev., 3562,
n. 2,
75. 5 Chamberlayne. Evidence, 3566.
76. Andrews v. Tucker, 127 Ala. 602, 29 So.
34 (1900); Hurlburt v. Dusenbery, 26 Colo.
240, 57 Pac. 860 (1899); Town v. Jepson,
133 Mich. 673, 95 N. XV. 742 (1903) ; Davis
v. Scovern, 130 Mo. 303, 32 S. W. 986 (1895) ;
Corse v. Peck, 102 N. Y. 513, 7 X. E. 810
(1886); Holoway v. Frick, 149 Pa. 178, 24
Atl. 201 (1892) ; 5 Chamb., Ev., 3566. n. 1.
77. Toledo, etc., R. Co. v. Levy, 127 Tnd.
168, 26 N". E. 773 (1890) ; Bryant v. Thesing,
46 Neb. 244, 64 N. XV. 967 (1895) ; Midland
Roofing Mfg. Co. v. Pickens, 96 S. C. 286, 80
S E. 484 (1914) ; Chamb., Ev., 3566, n. 2.
78. Starr Piano Co. v. Baker. 8 Ala. App.
449, 62 So. 549 (1913); Thomas v. Barnes,
156 Mass. 581, 31 N. E. 683 (1892); Law-
rence v. Miller, 86 N. Y. 131 (1881) ; Peck
v. Beckwith, 10 Ohio St. 498 (1860) : Putman
Foundry & Mach. Co. v. Canfield, 25 R. T. 548,
56 Atl. 1033 (1904); Bannon v. Aultman &
Co., 80 XVis. 307, 49 N. XV. 967 (1891) ; River-
side Tp. v. Stewart, 211 Fed. 873 (C. C. A.
1914) ; 5 Chamb., Ev., 3566, n. 3.
79. Elyea-Austell Co v. Jackson Garage, 13
Ga. App. 182, 79 S. E. 38 (1913.1 ; Morehouse
v. Terrill, 111 111. App. 460 (1903) : Leathe v.
Bullard, 8 Gray (Mass.) 545 (1857); Brady
v. Cassidy, 145 N. Y. 171, 39 N. E. 814
(1895) ; Raffensberger v. Cullison, 28 Pa. 426
( 1857 ) ; 5 Chamb., Ev., 3566, n. 4.
80. Brady v. Cassidy, supra.
81. Hiett v. Turner-Hudnut Co., 182 111.
App. 524 (1914); Farmington v. Brady, 11
App. Div. 1, 42 N. Y. Supp. 385 (1896) ; 5
Chamb., Ev., 3566, n. 6.
82. Mitchell v. Universal Life Ins. Co., 54
Ga. 289 (1875); Boggs v. Pacific Steam
Laundry Co., 86 Mo. App. 616 (1900) ; North-
rip v. Burge, 255 Mo. 641, 164 S. XV. 584
(1914); 5 Chamb., Ev., 3566, n. 7. The
lessee under a written lease cannot put in
evidence in a suit for a breach of the lease a
subsequent oral agreement modifying the rent
and agreeing what improvements the lessor
should make as this renders the lease partly
oral contrary to the statute of frauds. Boni-
camp v. Starbuck, 25 Okla. 483, 106 Pac.
839, L. R. A. 1917 B 141 (1910).
875
MISTAKE.
1117, 1118
1117. Mistake. 83 The parol evidence rule is not infringed upon by the
admission of evidence showing that a written instrument was executed under
a mutual mistake of fact. 84 Evidence for this purpose is frequently employed
where the active aid of a court of equity is invoked for the reformation or can-
cellation of a writing. 85 Evidence to establish a mistake of this nature has
also been received in an action at law. 86 A mistake of law is not, however,
the subject of proof by parol. 87
1118. Parties; Identification Of. Where, owing to some omission or error,
there is a want, in the instrument, of a sufficient description of a party to
identify him with certainty, an exception to the general rule of exclusion is
recognized,* 8 and parol evidence will be received to enable the court to properly
Ins. Co., 244 Pa. 582, 91 Atl. 495, L. R. A.
1915 A 273 (1914). Where a beneficiary in
a policy is described as ' Evelyn M. Cum-
mings his wife " and he haa a wife living
named Sophia but was living with " Evelyn "
as his wife and she was called his wife the
court has no power to change the policy and
order the proceeds paid to the real wife. Mu-
tual Life Ins. Co. v. Cummings, 66 Or. 272,
133 Pac. 1169,47 L R. A. (X. S.) 252 (1913).
85. Kee v. Davis, 137 Cal 456, 70 Pac. 294
(1902); Gray v. Merchants' Ins. Co., 113
111. App. 537 (1903); Goode v. Riley, 153
Mass. 585, 28 X. E. 228 (1891): Bryce v.
Lorillard Fire Ins. Co., 55 N. Y. 240 (1873) ;
Finishing & Wa.reh.ouse Co. v. Ozment, 132
X. C. 839, 44 S. E. 681 (1903) : Gill v. Pelkey,
supra; 5 Chamb., Ev., 3567, n. 2.
86. Byrd v. Campbell Printing P. & M. Co.,
94 Ga. 41, 20 S. E. 253 (1894); McLean
County Bank v. Mitchell, 88 111. 52 (1878) ;
Sparks v. Brown, 46 Mo. App. 529 (1891);
Meyer v. Lathrop, supra ; Moliere v. Pennsyl-
vania Fire Ins. Co., 5 Rawle (Pa.) 342, 28
Am. Dec. 675 (1832) ; 5 Chamb., Ev., 3567,
n. 3.
87. Heavenridge v. Mondy, 49 Ind. 434
(1875); Gottra v. Sanasack, 53 111. 456
(1870) ; Potter v. Sewall, 54 Me. 142 (1866) ;
McMurray v. St. Louis Oil Co., 33 Mo. 377
(1863) ; Meokley's Estate, 20 Pa. 478 (1853) ;
5 Chamb., Ev., 3567, n. 4.
88. Wolff v. Elliott, 68 Ark. 326, 57 S. W.
1111 ( 1900) : Hogan v. Wallace, 166 111. 328,
46 X. E. 1136 (1897) ; Haskell v. Tukesbury,
92 Me. 551. 43 Atl. 500 (1899): Scanlan v.
Wright, 13 Pick. (Mass.) 523, 25 Am. Dec.
344 (1833): Harlan County v. Whitney, 65
Xeb. 105, 90 X. W. 993 (1902) ; Woolsey v.
Morris, 96 X. Y. 311 (1884) ; Cohee v. Turner
83. 5 Chamberlayne, Evidence, 3567.
84. Jersey Farm Co. v. Atlantic Realty Co ,
164 Cal 412, 129 Pac. 593 (1913); Kuck v.
Fulffs, 68 111 App. 134 (1896); Maffet v.
Schaar, 89 Kan. 403, 131 Pac. 589 (1913);
Breeding v. Tandy, 148 Ky. 345, 146 S. W.
742 (1912); Gintehr v. Townsend, 114 Md.
122, 78 Atl. 908 (1911) ; Meyer v. Lathrop, 73
X. Y. 315 (1878); Mayor v. Dwight, 82 Pa.
462 (1876); 5 Chamb., Ev., 3567, n. 1.
Application of rule stated in text to
Contracts: Meyer v. Lathrop, supra
Deeds: Wieneke v Deputy. 31 Ind. App.
621, 68 X. E. 921 (1903) ; Gillespie v. Moon,
2 Johns. Ch. (X. Y.) 585 (1817); Gill v.
Pelkey. 54 Ohio St. 348, 43 X. E. 991 (1896) ;
Chew v. Gillespie, 56 Pa. 308 (1867) ; Salmer
v Lathrop, 10 S. D. 216, 72 N. W. 570 (1897) ;
5 Chamb , Ev., 3567, n. 1. A misdescription
of the land covered in an insurance policy due
to the error of the company's agent will not
prevent an action at law on the policy with-
out first having it reformed in equity and
parol evidence may be introduced to show the
error. French v State Farmer's Hail Ins.
Co., 29 X. D. 426, 151 X. W. 7, L. R. A. 1915
D 7ti6 (1915) An insurance policy may be
contradicted by showing that the insured ap-
plied orally for the policy and the agent by
error described the property wrongly, and
sent it to the insured who did not read it till
after the fire as this is evidence of fraud.
Fisher v Sun Ins. Office, 74 W. Va. 694. 83
S. E. 729, L. R. A. 1915 C 619 (1914). Er-
rors made by an insurance agent in writing
down the answers to questions as given to
him orally by the insured may be shown
as these questions go to the very essence of
the insurance risk, and a representation can
always be explained. Suravitz v. Prudential
1113
PAROL EVIDENCE RULE.
876
interpret the instrument and give it effect as intended. Thus in the case of a
deed evidence for this purpose lias been received. 89 Similarly, the fact that a
person, in executing a writing, acted as agent for another, 9 " or in some other
representative capacity 91 such, for instance, as an authorized agent or officer
of a corporation ''-' may, in like manner, be shown by parol evidence.
Real Transaction May Be Shown. Where the true nature of the transac-
tion is not apparent from the writing itself, the court may permit the introduc-
tion of extrinsic evidence 93 of the circumstances attending the transaction,
so that the objects and purposes of the parties in executing the writing may be
ascertained and effect given thereto, provided, of course, as in other cases, that
the proof offered is consistent with the language employed.
& Wiggins, 37 Okl. 778, 132 Pac. 1082 (1913) ;
5 Chamb., Ev., 3563, n. 1.
89. Wakefield v. Brown, 38 Minn. 361, 37
N. \V. 788 (1888) Keith v. Scales 124 N. C.
497, 32 S. E. 809 (1899); 5 Chamb., Ev.,
3563, n. 2.
90. Carr v. Louisville & N. R. Co., 141 Ga.
219, 80 S. E. 716 (1914) ; Meyers v. Kilgen,
177 Mo. App. 724, 160 S. W. 569 (1913);
Brady v. Nally, 151 X. Y. 258, 45 N. E. 547
(1896); Crable & Son v. O'Connor, 21 VVyo.
460, 133 Pac. 376 (1913); 5 Chamb., Ev.,
3563, n. 3.
Agency. The parol evidence rule does not
exclude evidence that a person named in a
written contract was the agent of an undis-
closed principal. This does not vary the con-
tract but establishes a collateral fact; that
is the authority under which the agent acts.
Davidson v. Hurty, 116 Minn. 280. 133 N. W.
862, 39 L. R. A. (X. S.) 324 (1911).
Parol evidence is inadmissible to show
parties to sealed instruments acting as agents.
See note, Bender, ed., 192 X. Y. 229.
91. Curran v. Holland. 141 Cal. 437, 75
Pac. 46 ( 1903) ; .Adams Exp. Co. v. Boskowitz,
107 111. 660 (1883); Rank v. Grote, 110 X.
Y. 12, 17 X. E. 665 (1888); Moore v. Wil-
liams, 26 Tex. Civ. App. 142, 62 R. W. 977
(1901) ; 5 Chamb., Ev., 3563, n. 4. Where
an insurance policy is made in the name of
an individual parol evidence is not admissible
to show that he is an administrator and that
the policy was intended to cover the interests
of the estate and the heirs as this would be
varying the terms of a written instrument.
Stanley v. Firemen's Insurance Co., 34 R. I.
491, 84 Atl. 601, 42 L. R. A. (X. S.) 79
(1912).
.Sureties. In a suit between two sureties
on a bond to enforce contribution parol evi-
dence is admissible to show the actual rela-
tion of the parties and that it was agreed be-
tween them that the defendant was not to
be held as surety. Frew v. Secular, 101 Xeb.
131, 162 X. W. 496, L. R. A. 1917 F 1065
(1917) Fact that one is surety may be
proved by parol See note to Bender, ed., 171
X. Y. 52. Proper to show by parol that per-
son who signed note was surety. See note,
Bender, ed., 6 X. Y. 9.
92. Decowski v. Grabarski, 181 111. App. 279
(1914) ; Kenner v. Decatur County Rochdale
Co-operative Ass'n, 87 Kan. 293, 123 Pac.
739 (1912); United Surety Co. v. Meenan,
211 X. Y. 39, 105 X. E. 106 (1914) ; Xorthern
Xat. Bank v. Lewis, 78 Wis. 475, 47 X. W.
834 (1891); 5 Chamb., Ev., 3563, n 5.
Compare Crelier v Mackey, 243 Pa. 363, 90
Atl. 158 (1914) If a note is signed with
the name of a corporation by its signing offi-
cers alone it is the note of the corporation
alone and cannot be shown to be the notes of
the officers, but where the names of the di-
rectors are added this leaves the matter am-
biguous and it may be shown by parol that
the parties intended to obligate themselves in-
dividually. Denman v. Brenneman (Okla.)
(1915), 149 Pac. 1105, L. R. A. 1915 E
1047. An indemnity agreement signed by
various individuals who are the officers of a
drainage district where the district was the
real principal in the bond is the personal ob-
ligation of the signers and parol evidence is
not admissible to show that they intended to
sign as representing the district. Costello v.
Bridges, 81 Wash. 192, 142 Pac. 687, L. R. A.
1915 A 853 (1914).
93. Application of rule stated in the text to
Assignments : Reeve v. Dennett, 147 Mass.
877
SUBJECT MATTER.
1118
Subject Matter Not Clear; Evidence for Purpose of Identification. Where
there is an uncertainty in the terms of an instrument as to the subject matter
to which the writing relates, and which it is necessary to, in some way, iden-
tify, in order to give effect to the document with a proper degree of certainty,
parol evidence will be received 94 to enable the court to apply the writing to
its subject matter and its admission is, in no way, a violation of the parol
evidence rule. Where the description in instruments relating to real property
is not sufficiently definite to clearly identify it, the court will endeavor to give
effect to the writing in accordance with the understanding of the parties and,
for this purpose, will receive extrinsic evidence, consistent with the terms of
the instrument, to enable it to apply the description in accordance with their
intention. 1 ' 5 The rule has been applied by the courts to contracts of sale, 96
deeds. 7 leases, 08 and mortgages." The object of the court is, in all cases, to
315 (1S84); Matthews v. Sheehan, 69 N. Y.
585 (1877) ; Taylor v. Paul, 6 Pa Super. Ct.
406 (1808) ; 5 Chamb.. Ev ., 3564, n. 1.
Assignments: Reeve v. Dennett, 137 Mass
315 (1884): Matthews v. Sheehan, 69 "NT. Y.
585 (1877) ; Taylor v Paul, 6 Pa. Super Ct.
496 (1S98) ; 5 Chamh., Ev., 3564. n 1.
Bills of sale: Florida Cent & P. R. Co.
v. L'snia, 111 Ga 697, 36 S. E. 928 (1900);
Raphael v Mullen, 171 Mass 111, 50 X. E
515 ( 1898) : Martin v. Martin, 43 Or. 119, 72
Pac 639 (1903) ; 5 Chamb., Ev , 3564, n. 1.
But see, Thomas v. Scutt. 127 N. Y. 133, 27
X E. 961, alFg 52 Hun 343, 5 X. Y. Supp. 365
(1891).
Deeds may he shown to have been given as
a mortgage, trust and the like. Black v.
Sharkey, 104 Cal. 279, 37 Pac. 939 (1894);
Myers v. Myers, 167 111. 52, 47 X E. 309
(1897) : Colib v. Day, 106 Mo. 278, 17 S W.
323 (1891); Medical College Laboratory v.
New York University, 76 App. Div. 48, 78 X.
Y. Supp. 673 (1902); Senff v. Pyle, 46 Ohio
St 102, 24 X E. 595 (1888); Beringer v.
Lutx, 179 Pa. 1, 37 Atl. 640 (1897): Schierl
v. Xewburg, 102 Wis. 552, 78 X. W. 761
(1899) ; 5 Chamb., Ev., 3564, n 1.
Mortgages: Kirby v. Raynes, 138 Ala.
194, 35 So 118 (1902) : Sparks v. Brown, 33
Mo. App 505 (1888); Lippincott v. Lawrie,
119 Wis. 573, 97 X. W. 179 (1903) ; 5 Chamb.,
Ev., 3564, n. 1.
94. Messenger v. German-American Ins Co.,
47 Colo. 448, 107 Pac 643 (1910): Hartwell
Grocery Co. v. Mountain City Mill Co.. 8
App 727. 70 S E. 48 (1911); Stockwell v.
Whitehead, 47 Ind. App. 423, 94 X. E 736
(1911); Pulaski Hall Ass'n v. American
Surety Co., 123 Minn. 222, 143 X. W. 715
(1913) ; McManus v. Donohoe, 175 Mass. 308,
56 X. E. 391 ( 1899) ; Miller v. Tuck, 95 App
Div. 134, 88 X. Y. Supp. 495 (1904) ; Allison
v. Keinon, 163 X C. 582, 79 S. E. 1110
(1913); Hurd v. Robinson. 11 Ohio St. 232
(1860) : King v. Xew York & Cleveland Gas
Coal Co., 204 Pa. 628. 54 Atl. 477 (1903);
Adams v. Janes, 83 Vt. 334, 75 Atl. 799
(1910) ; 5 Chamb., Ev., 3565, n. 1.
95. Grubbs v. Boon, 201 111. 98, 66 X. E.
390 1 1903) ; Weeks v. Brooks, 205 Mass. 458,
92 X. E. 45 (1910); Pettit v. Sheppard, 32
X. Y. 97 (1865) : Trustees, etc.. of Kingston
v. Lehigh Valley Coal Co.. 241 Pa. 469, 88
Atl. 763 (1913); Fore v. Berry, 94 S. C.
71, 78 S. E. 706 (1912): Roberts v.
Hart (Tex. Civ. App. 1914), 165 S. W.
473; 5 Chamb., Ev., 3565, n. 2. The descrip-
tion of property in a will may be corrected
by showing that unless the description is
corrected the land the testator owned will go
as intestate property, where the testator did
not own the property described in the will.
Re Boeck, 160 Wis. 577, 152 X. W. 155, L. R.
A. 1915 E 1008 (1915)
96. Towle v. Carmelo Land & Coal Co., 99
Cal 397, 33 Pac. 1126 (1893); Clark v.
Crawfordsville Coffin Co., 125 Ind. 277. 25
X. E. 288 (1890) : Helper v. MacKinnon Mfg.
Co.. 138 Midi. 593. 101 X. W. 804 (1904);
Miller v Tuck, supra ; Crown State Co. v.
Allen, 199 Pa. 239, 48 Atl. 968 (1901); 5
Chamb., Ev., 3565, n. 2.
97. Georgia & A. R. Co v Shiver, 121 Ga.
708, 49 S. E. 700 (1904): Richardson v
Sketchley. 150 Iowa 393. 130 X. W 7 . 407
(1911) ; Kinlinger v. Joslyn. 93 Xeb. 40, 139
1119
PAEOL EVIDENCE RULE.
878
ascertain the meaning of the parties in executing the writing, and parol evi-
dence is received only to the extent that it tends to aid in the interpretation
and construction of the writing. The court will not permit the introduction
of evidence, in respect to the subject matter, if there is no uncertainty in the
description thereof, for, wheA that situation is presented, the parol evidence
rule of exclusion intervenes. 1 Thus in the case of a mortgage, 2 lease, 3 or con-
tract of sale, 4 the court will not permit the introduction of evidence inconsist-
ent with the writing and which tends to contradict or vary its terms. A
similar situation also exists where the language used is of such a vague char-
acter that, even with the aid of parol evidence, there would be no certainty
that the real subject had been identified. The rule of exclusion is, likewise-
here applicable. 5
1119. Unauthorized Signing. 6 It is always permissible for one whose name
appears as a party to a writing to show that the signature is not his but was
affixed to the document by one who was not authorized to act for him in the
matter, 7 and who either exceeded powers conferred upon him or forged his
name thereto, since he is not bound by such an instrument. Evidence to this
effect is not within the meaning of the parol evidence rule.
N. W. 1019 (1913) ; Petrie v. Hamilton Col-
lege, 158 N. Y. 458, 53 N. E. 216 (1899);
Johnson v. Branning Mfg. Co.. 165 N. C. 105,
80 S. E. 980 (1914) ; 5 Chamb., Ev., 3565,
n. 2.
98. Durr v. Chase, 161 Mass. 40, 36 N. E.
741 (1894) ; Myers v. Sea Beach R. Co., 167
N. Y. 581, 60 N. E. 1117 (1901); Boice v.
Zimmerman, 3 Pa. Super. Ct. 181 (1896);
Goodsell v. Rutland Canadian R. Co., 75 Vt.
375, 56 Atl. 7 (1902) ; 5 Chamb., Ev., 3565,
n. 2.
99. California Title Ins. & T. Co. v. Pauly.
Ill Cal. 122, 43 Pac. 586 (1896); Clapp v.
Trowbridge, 74 <owa 550, 38 X. W. 411
(1888); Taft v. Stoddard, 141 Mass. 150, 6
N. E. 836 (1886); Farr v. Nichols, 132 N.
Y. 327, 30 N. E. 834 (1892) ; 5 Chamb., Ev.,
3565, n. 2.
1. Daniel v. Williams, 177 Ala. 140, 58 So.
419 (1912); Mead v. Peabody, 183 111. 126,
55 N. E. 719 (1899) ; Miller v. Washburn, 117
Mass. 371 (1875); Duffield v. Hue, 129 Pa.
94, 18 Atl. 566 (1889) ; 5 Chamb., Ev., 3565,
n. 3.
2. Lawrence v. Comstock, 124 Mich. 120,
82 N. W. 808 (1900) ; Drexel v Murphy, 59
Neb. 210, 80 N. W. 813 (1899); Coombs v.
Patterson, 19 R. I. 25, 31 Atl. 428 (1897);
5 Chamb., Ev., 3565, n. 4.
3. Haycock v. Johnson, 81 Minn. 49, 83
N. W. 494, 1118 (1900) ; Kraus v. Smolen, 46
Misc. 463, 92 N. Y. Supp. 329 (1905) ; Duf-
field v. Hue, sura ; 5 Chamb.. Ev., 3565, n 5.
4. Fitzgerald v. Clark, 6 Gray (Mass.) 393
(1856); Dady v. O'Rourke, 172 N. Y. 447,
65 N. E. 273 (1902) ; Ormsbee v. Machir. 20
Ohio St. 295 (1870); Baugh v. White, 16.1
Pa. 632, 29 Atl. 267 (1894); 5 Chamb., Ev.,
3565, n. 6.
5. First Nat. Bank v. Sonnelitner, 6 Ida.
21, 51 Pac. 993 (189S); Augustine v. Mc-
Dowell, 120 Iowa 401, 94 N. W. 918 (1903) ;
Ham v. Johnson, 51 Minn. 105, 52 N. W. 1080
(1892) ; Farthing v. Rochelle, 131 N. C. 563,
43 S. E. 1 (1002) ; 5 Chamb., Ev., 3565, n.
7. A contract for sale of land described as
"lots 11, 12, and 13 in Block 13, Lemp's ad-
dition " which fails to state the state county
or city or town where the land lies is insuf-
ficient and cannot be aided by parol evidence
Allen v. Kitchen, 16 Idaho 133, 100 Pac.
1052, L. R. A. 1917 A 563 (1909).
6. 5 Chamberlayne, Evidence, 3568.
7. Harper v. Lockhart, 9 Colo. App. 430,
48 Pac. 901 (1897) : Remick v. Sandford, 118
Mass. 102 (1875) ; Pierce v Georger, 103 Mo
540. 15 S. W. 848 (1890) ; Porter v. Hardy,
10 N. D 551, 88 N. W. 458 (1901) ; Hunter
v. Reilly, 36 Pa. 509 (I860); Ellis v. Wat-
kins, 73 Vt. 371, 50 Atl. 1105 (1900); 5
Chamb., Ev., 3568, n. 1.
879
PUBLIC RECORDS.
1120
1120. Public Records. 8 The parol evidence rule applies to public rec-
ords 9 forbidding the introduction of any extrinsic evidence which in any re-
spect tends to contradict, alter or vary them. The same principle controls in
the case of judicial records, 10 in which are recorded the various steps in judicial
proceedings from their inception to their termination. An occasion may,
however, arise when parol evidence may be admitted for the purpose of ex-
plaining some matter of record which is not clear or for supplying some omis-
sion therein.
8. 5 Chamberlayne, Evidence, 3569.
9. Wilson v. Jarron, 23 Ida. 563, 131 Pac.
12 (1913); City of Belleville v Miller, 257
111 244, 100 X. E. 946 (1913); In re Bur-
master's Estate, 161 Iowa 116, 141
X \V. 55 (1913); Cohb v. Alberti, 38 Okl.
296, 132 Pac 1075 (1913); Olson Land Co.
v. Seattle, 76 Wash 142, 136 Pac. 118 (1913) ;
Cote v. Xew England Xav. Co., 213 Mass.
177, 99 X E. 972 (1912); 5 Chamb., Ev.,
3569, n. 1. Parol evidence is not admissible to
show that before the governor vetoed a bill
he signed it intending to approve it, aa a
legislative record cannot be varied by parol.
.Arkansas State Fair Association v. Hodges,
120 Ark. 131, 178 S. W. 936. It is not proper
to attack a requisition of a governor of an-
other state for extradition by affidavits of
outside persons as this is an official document
which cannot be impeached. Massee, ex
parte, 95 S. C. 315. 79 S. E. 97, 46 L. R A.
(X. S.) 781 (1913). A record made by the
clerk of a school district of its annual meeting
may be supplemented by evidence of a vote
which does not appear on the records where
the record does not purport to be complete
but is a mere abstract of the action taken.
Gilmer v School District Xo 26, 41 Okla. 12,
136 Pac 10S6, 50 L. R A. (X. S.) 99 (1913)
Parol evidence is not admissible to show that
a municipal ordinance was passed by a yea
and nay vote where its journal does not
show it. It is the general rule that the
official records of a city may be shown only
by its official records as if these records could
be varied by parol they would be uncertain
and unreliable. Spalding v. Lebanon, 156 Ky.
37, 160 S. W. 751, 49 L. R. A. (X. S.) 387
(1913).
10. Montgomery Co. v. Taylor, 142 Ky. 547,
134 S. \V. 894 (1911) ; Cote v. New England
Xav. Co., supra; Rust v. State (Tex. Civ.
App. 1913), 158 S. W. 519; Doyle-Kidd Dry
Goods Co. v. Sadler-Lusk Trading Co., 206
Fed. 813 (1913); 5 Chamb., Ev.. 3569, n.
2. But see Brand v. Swindle, 68 W. Va. 571,
70 S. E. 362 (1911) (justice's docket).
Alteration. Parole evidence may be admit-
ted to show that a record of a judgment has
been changed by altering its date. Sackett
v. Rose i Okla. 1916), 154 Pac. 1177, L. R. A.
1916 D 820.
Acknowledgment of deed. A certificate of
acknowledgment on a deed may be impeached
by evidence of the interested parties that
they did not sign it in those states where
the acknowledgment is regarded as a minis-
terial and not a judicial act. People's Gas
Co. v. Fletcher, 81 Kan. 76, 105 Pac. 34, 41 L.
R. A. (N. S.) 1161 (1909).
CHAPTER LIX.
BEST EVIDENCE RULE.
Best evidence rule; application to documents, 1121.
writing executed in duplicate, 1122. r
when proof other than by original allowed; administrative requirements,
1123.
loss or destruction of original, 1124.
diligence required in search, 1125.
public records; official and judicial, 1126.
voluminous facts in different writings, 1127.
writing collateral to issues, 1128.
writing in control of adverse party, 1129.
writing in possession or control of third papty ; out of jurisdiction,
1130.
1121. Best Evidence Rule; Application to Documents. 1 The principles of
justice demand that nothing short of the most probative evidence, the " best "
evidence so called, shall be used. In any case, where a party has it in his
power to furnish either a primary or secondary grade of proof, the primary
must be produced. 2 This principle, as applied in the case of constituent docu-
ments, requires the production of the original, in preference to proof by copy
or any verbal testimony of their contents, and the present scope of the <l best
evidence rule," viewed as one of procedure, is practically limited to proof of
the contents and execution of such documents. 3 In any such case, where a
party has it within his power to produce the original, he will be required to do
so. 4 This is the general rule which applies alike, subject to some exceptions
which will be considered in the following sections of this chapter, to all classes
1. 5 Chamberlayne, Evidence, 3570. Hunt v. Lavender, 140 Ga. 790, 79 S. E. 1127
2. Mordecai v. Deal, 8 Port. (Ala.) 529 (1913); Bernstein v. Berlinger, 170 111. App.
(1839) . 519 ( 1912) ; Post v. Leland, 184 Mass. 601, 69
A marriage ceremony may be proved by N. E. 361 (1903); Washoe Copper Co. v.
parol notwithstanding there is a marriage Junila, 43 Mont. 178, 115 Pac. 917 (1911);
certificate in existence at the time. The Ruemer v. Clark, 121 App. Div. 231, 105 N.
testimony of eye witnesses is primary evi- Y. Supp. 659 (1907); State v. Lent, Tapp.
dence and the certificate is not to be pre- (Ohio) 105 (1816); Commercial Union
ferred to it. Watson v. Lawrence, 134 La. Assur. Co. v. Wolfe, 41 Okl. 342, 137 Pac. 704
194, 63 So. 873, L. R. A. 1915 E 121 (1913). (1914) : Grauley v. Jermyn, 163 Pa. 501, 30
3. Supra, 228; 1 Chamb., Ev., 466. Atl. 203 (1894); Trainer v. Lee, 34 R. I.
4. Spangenberg v. Nesbitt, 22 Cal. App. 345, 83 Atl. 847 (1912): Aetna Ins. Co. v.
274, 134 Pac. 343 (1913) ; Peoples' Nat. Bank Bank of Brunson, 194 Fed. 385, 114 C. C. A.
v. Rhoads (Del. Super. 1914), 90 Atl. 409; 303 (1912); 5 Chamb., Ev., 3570, n. 4.
880
881
DUPLICATES.
1122
of constituent documents. For example, the courts have applied the rule to
particular writings, such as agency, etc., 5 assignments, 6 awards, 7 ballots, 8
bills of sale, 9 bonds, 10 contracts, 11 deeds, conveyances, etc., 12 leases, 13 letters, 14
notes, 15 notices of loss, 16 and wills. 17 The original is, in all cases, regarded as
the primary or " best evidence " so called if it is in existence and its produc-
tion is possible. The rule is rigidly enforced, and resort must be had thereto
unless the presiding judge is satisn'ed of the proponent's inability to offer the
original in evidence.
1122. Writings Executed in Duplicate. 18 Where the writing embodying
the terms of a transaction agreed upon between the parties is executed in du-
plicate, triplicate or more counterparts, each being the exact counterpart of
the other, except that the writing held by each party may in some instances
only have the signature of the other party or parties thereto, both are originals
5. Lee v. Agricultural Ins. Co., 79 Iowa 379,
44 N. W. 683 (1890) ; Kennebeck Purchase v.
Call, 1 Mass. 483 (1805) ; Emery v. King. 64
N. J. L. 529, 45 Atl. 915 (1900); Langbein
v. Tongue, 25 Misc. 757, 54 N. Y. Supp. 145
(1898); Beale v. Com., 11 Serg & R. (Pa.)
299 (1824); 5 Chamb., Ev., 3570. n. 5.
6. Landt v. McCullough, 206 111. 214. 69
N. E. 107 (1903); Van Doren v. Jelliffe, 1
Misc. 354, 20 X. Y. Supp. 636 (1892) ; John-
ston v. Southern Well Works Co., 208 Fed.
145, 125 C. C. A. 361 (1913); 5 C. 3570,
n. 5.
7. Sirrine v. Briggs, 31 Mich. 443 (1875) ;
Osen v. Sherman, 27 Wis. 501 (1871); 5
Chamb., Ev., 3570, n. 5.
8. Moon v. Harris, 122 Minn. 138, 142 N.
W. 12 (1913); Caldwell v. McElvain, 184
111. 552, 06 X. E. 1012 (1900): Albert v.
Twohig, 35 Xeb. 563, 53 X. W. 582 (1892) ;
5 Chamb., Ev., 3570, n. 5.
9. Epping v. Mockler, 55 Ga. 376 (1875);
Hood v. Olin, 80 Mich. 296. 45 X. W. 341
(1890) ; Dunn v. Hewitt, 2 Den. I X. Y.) 637
(1846) ; Price v. Wolfer, 33 Or. 15, 52 Pac.
759 (1898) ; Bratt v. Lee. 7 U. C. C. P. 280
(1908) ; 5 Chamb., Ev., 3570, n. 5.
10. Traylor v. Epps, 11 Ga. App. 497, 75 S.
E. 828 (1912) ; Montana Min. Co. v. St. Louis
Min., etc., Co., 20 Mont. 394, 51 Pac. 824
(1898) ; Rank v. Shewey. 4 Watts (Pa.) 218
(1835) ; 5 Chamb., Ev., 3570, n. 5.
11. Burton v. Meinert & Miller, 136 Ga.
420, 71 S. E. 870 (1911); Kitza v. Oregon
Short Line R. Co., 169 111. App. 609 (1912) ;
Kingman v. Hett, 9 Kan. App. 533, 58 Pac.
1022 (1899) ; Holmes v. Hunt, 122 Mass. 505,
23 Am. Rep. 381 (1877); Mahaney v. Carr,
175 X. Y. 454, 67 N. E. 903 (1903) ; McDevitt
v. Pewel, Tapp. (Ohio) 54 (1816); Irwin v.
Irwin, 34 Pa. 525 (1859); 5 Chamb., Ev.,
3570, n. 5.
12. Harbison Walker Refractories Co. v.
Scott, 185 Ala. 641, 64 So. 547 (1914);
Lewis v. Burns, 122 Cal. 358, 55 Pac. 132
(1898); Wright v. Roberts, 116 Ga. 194, 42
S. E. 369 (1902) ; Brock v. Satchell, 130 La.
853, 58 So. 686 (1912) ; Brackett v. Evans, 1
Cush. (Mass.) 79 (1848); Jackson v. Park-
hurst, 4 Wend. (N. Y.) 369 (1830); Deppen
v. Bogar, 7 Pa. Super. Ct. 434 ( 1898 ) ; 5
Chamb., Ev., 3570, n. 5.
13. Wallace v. Wallace, 62 Iowa 651, 17
N. W. 905 (1883); Gilbert v. Kennedy, 22
Mich. 5 (1870) : Putnam v. Goodall, 31 N. H.
419 (1855) ; 5 Chamb., Ev., 3570, n. 5.
14. Slaughter v. Heath, 127 Ga. 747, 57
S. E. 69 ( 1907 ) ; Prussing v. Jackson, 208
111. 85, 69 X. E. 771 (1904) ; Connecticut Fire
Ins. Co. v. Moore. 154 Ky. 18, 156 S. W.
867 (1913) ; Post v. Leland, 184 Mass. 601, 69
X. E. 361 (1904) : Stern v. Stanton, 184 Pa.
468, 39 Atl. 404 (1898); 5 Chamb., Ev.,
3570, n. 5.
15. Dale v. Christian, 140 Ga. 790, 79 S. E.
1127 (1913).
16. Aetna Ins. Co. v. Bank of Branson, 194
Fed. 385, 114 C. C. A. 303 (1912).
17. McXear v. Roberson, 12 Ind. App. 87,
39 X. E. 896 (1894) : Morrill v. Otis, 12 X T .
H. 466 (1841) : Matter of Smith. 61 Hun 101,
15 X. Y. Supp. 425 (1891) ; 5 Chamb., Ev.,
3570, n. 5.
18. 5 Chamberlayne, Evident, 3571.
1123 BEST EVIDENCE KITLE. 882
and primary evidence of the terms of the transaction and either may be ad-
mitted as such in evidence, 19 without proof being required of any reason for
the non-production of the other, if, however, where there are duplicate orig-
inals, a party seeks to introduce secondary evidence he will not be permitted
to do so until the court has been satisiied of his inability to produce either
original. 20 Carbon copies being made by the same imprint as that which is
designated the original, are regarded as originals,- 1 and the same rules as apply
in the case of duplicates, triplicates and the like are applicable.
1123. When Proof Other Than by Original Allowed; Administrative Require-
ments. 22 As appears in the subsequent sections of this chapter, the proponent,
upon satisfactorily establishing the fact of his inability to produce the original
document, will be permitted to prove its contents by other evidence. The court,
however, must be satisfied that, whatever the reason assigned by him for the
non-production of the document, may be, the condition which he asserts as ex-
cusing him for not complying with the requirements of the rule, does in fact
actually exist. 23 He must show that he has exercised due diligence in en-
deavoring to obtain the writing itself.
Must Be Authenticated as Genuine. In all cases where a party, who relies
upon the loss, destruction or unavailability of the instrument, seeks to prove its
contents, other than by the production of the original, it will be required, as
in the case of the production of the original private writing or document, that
the genuineness of the writing, or in other words its due and proper execution
by the party whose act it is asserted to be, shall be established to the satisfac-
tion of the presiding judge. 24 So a failure to produce documents so called for
19. .Westbrook v. Fulton, 79 Ala. 510 23. Larsen v. All Persons, 165 Cal. 407,
(1885); Weaver v. Shipley, 127 Ind. 526, 27 132 Pac. 751 (1913); Empire State Surety
N. E. 146 (1890); Catron v. German Ins. Co. v. Lindenmeier, 54 Colo. 407, 131 Pac.
Co., 67 Mo. App. 544 (18!)6); Manchester & 437 (1013) ; Cerny v. Glos, 261 111. 331. 103
Lawrence Railroad v. Fisk, 33 N. H. 297 N. E. 973 (1914); McConnell v. Wildes, 153
(1856) ; Hubbard v. Russell, 24 Barb. (X. Y.) Mass. 487, 26 X. E. 1114 (1854): Sullivan
404 (1857); First Nat. Bank v. Jamison, 63 v. Godkin, 172 Mich. 257, 137 X. W. 521
Or. 594, 128 Pac. 433 (1913); Eastman v. (1912)j- Kearney v. Xew York, 92 X. Y.
Dunn, 34 R. I. 416, 83 Atl. 1057 (1912); 5 617 (1883); Greene & Kahl v. Mesick Gro-
Chamb., Ev., 3571, n. 1. eery Co., 159 X. C. 119, 74 S. E. 813 (1912) ;
20. Cincinnati, etc., R. Co. v. Disbrow, 76 Choteau v. Haitt, 20 Ohio 132 (1851); Glad-
Ga. 253 (1886); Holden's Steam Mill Co. v. stone Lumber Co. v. Kelly. 64 Or. 163, 129
Westervelt, 67 Me. 446 (1877): Peaks v. Pac. 763 (1913); Heller v. Peters. 140 Pa.
Cobb, 192 Mass. 196, 77 X. E. 881 (1906); 648, 21 Atl. 416 (1891); 5 Chamb., Ev.,
5 Chamb., Ev., 3571, n. 2. 3572, n. 2.
21. Hay v. American Fire Clay Co., 179 24. Rucker v. Jackson, 180 Ala. 109, 60
Mo. App. 567, 162 S. W. 666 (1913): Cole So. 139 (1912); Kelsey v. Hanmer, 18 Conn,
v. Ellwood Power Co., 216 Pa. 283. 65 Atl. 311 (1847); Garbutt Lumber Co. v. Gress
678 (1907) ; Eastman v. Dunn, 34 R. I. 416, Lumber Co., Ill Ga. 821, 35 S. E. 686 (1900) ;
83 Atl. 1057 (1912); Chesapeake & 0. Ry. Helton v. Asher, 103 Ky. 730, 46 S. W. 20
Co. v. Stock & Sons, 104 Va. 97, 51 S. E. 161 (1898) ; Zollman v. Tarr, 93 Mo. App. 234
(1905) ; 5 Chamb., Ev., 3571, n. 3. (1902); Edwards v. Noyes, 65 X. Y. 125
22. 5 Chamberlayne, Evidence, 3572- (1875); Burr v. Kase. 168 Pa. 81, 31 Atl.
3574. 954 (1895) ; 5 Chamb., Ev., 3573, n. 1.
883 Loss OF OEIGINAL. 1124
from an adverse party, is not of itself proof of the fact of their existence;
they must be proved. 25
Admissions Relating to Contents. There has been much diversity of opin-
ion whether, in case of an admission by an opponent of the contents of a writ-
ing, there should be a relaxation of the rule requiring the production of the
original, and the proponent should be allowed to introduce such admission in
evidence, as proof of contents. In England the rule seems to be established
that he may, and in many jurisdictions in the United States, and also in the
Canadian courts, the same conclusion has been reached, 20 upon the principle
that the situation here presented differs from that in which it is proposed to
introduce parol proof of the contents from other sources, in that that which has
been admitted may reasonably be presumed to be true. In other jurisdictions,
however, this doctrine has been repudiated, 27 generally, upon the ground of
the opportunity for fraud which would exist if a party could establish the con-
tents of a writing in this manner.
1124. loss or Destruction of Original. 28 Upon its being established to the
satisfaction of the presiding judge that a writing, which is relevant to the
issue, has been lost or destroyed, proof of its contents may then be made by
parol. This applies alike to all classes of constituent documents. 29 It being
thus satisfactorily shown that a party is unable to produce the original in evi-
dence, the so-called '" best evidence rule " permits proof of the contents of a
writing to be made by the best evidence of which the nature of the case will
admit.
25 Jones v. Reilly, 174 X. Y. 97, 66 X. E. App. 285, 134 Pac. 156 (1913) ; Hicks & Son
649 (1903). v. Mozley & Co., 12 Ga. App. 661, 78 S. E.
26. Morey v. Hoyt, 62 Conn. 542, 26 Atl. 133 (1913); People v. Henkle, 256 111. 585,
127 (1893); Combs v. Union Trust Co., 146 100 X. E. 175 (1912); Wolf v. Wolf, 152
Ind 688, 46 X. E. 16 (1896); Loomis v. Iowa 121, 131 N. W. 882 (1911); Hersey v.
Wadhams. 8 Gray (Mass) 557 (1857); Ed- Jones, 128 Mass. 473 (1880); Huntoon v.
gar v Richardson, 33 Ohio St. 381, 31 Am. Brendemuehl, 124 Minn. 54, 144 X. W. 426
Rep. 571 (1878) ; Krise v. Xeason, 66 Pa. 253 (1914) : Risher v. Madsden, 94 Xeb. 72, 142
(1870) ; Reg v. Basingstoke, 14 Q. B. 611, 68 X. W. 700 (1913) ; Corona Kid Co. v. Licht-
E. C. L. 611 (1851) : Rogers v. Card. 7 U. C. man, 84 X. J. L. 363, 86 Atl. 371 (1913) ;
C. P. 89 (1857) : 5 Chamb., Ev., 3574, n. 1. Sundelevitz v. Fourteenth St. Bank, 127 N. Y.
27. Flournoy v. Xewton, 8 Ga. 306 (1850); Supp. 315 (1911); John v. John, Wright
Prussing v. Jackson, 208 111. 85, 69 X. E. 771 (Ohio) 584 (1834) ; Reus v. Mattison, 30 Okl.
(1904) : Bank of Xorth America v. Crandall, 720, 121 Pac. 253 (1912) ; In re Daly's Es-
87 Mo. 208 (1885) : Cumberland Mut. F. Ins. tate. 55 Pa. Super. Ct. 488 (1914) ; Austin v.
Co. v. Giltinan, 48 X. J. L 495, 7 Atl 424 Calloway, 73 W. Va. 231, 80 S. E. 361 (1914) ;
(1886) ; Sherman v. People, 13 Hun (X. Y.) 5 Chamb., Ev., 3575, n. 1.
575 (1878) ; Com. v. County Prison, 11 Wkly. The mere fact that a writing is out of the
Xotes Cas. (Pa.) 341 (1882) ; 5 Chamb, Ev., jurisdiction of the court in another State in
3574, n. 2. the possession of a party does not permit him
28. 5 Chamberlayne, Evidence, 3575- to give secondary evidence of its contents.
3578. Federal Chemical Co. v. Jennings, 112 Miss.
29. People v. Murphy, 20 Cal. App. 398, 129 513, 73 So. 567, L. R. A. 1917 D 529 (1917).
Pac. 603 (1913) ; Eagan v. Mahoney, 24 Colo.
1124 BEST EVIDENCE RULE. 884
Evidence to Establish. Although a frequent, if not the usual mode, of
proving the loss of a document is by an affidavit to that effect, 30 yet loss may
also be established by other evidence, such as by the testimony of the person last
in possession of the instrument. 31 It should appear either from the testimony
of such person, if he can be produced, or by some other satisfactory evidence,
that the writing is not in the former's possession. 32 In case the writing can-
not be traced to the possession of one particular person, but the evidence tends
to show that it was equally likely to have been in the possession of any one of
several, then evidence should be introduced tending to show that it was not in
the possession of any of such persons. 33
Amount of Proof Required. What shall constitute sufficient proof of the
loss or destruction of the original, to authorize the admission of secondary evi-
dence of the contents, is dependent, to a great extent, upon the circumstances
of the case and the nature of the instrument. 34 Where the writing was not of
such a character that a person would, naturally, exercise any considerable
degree of care to preserve it, the court would not be as insistent upon the same
amount of proof being furnished, to establish its loss or destruction, as would
be required in the case of instruments, such as deeds, which ordinary persons
usually guard with much caution, preserving them, under conditions and in
places, where they can readily obtain them and where the chances of their
loss or destruction are minimized. 35 In the former case, a slight amount of
proof might be considered sufficient, while, in the latter instance, the court
would insist upon evidence of much more convincing effect. 36 Should some
30. Fallen v. Dougherty, 12 Cal. 104 search of the store about a year after it had
(1859) ; Blake v. Fash, 44 111. 302 (1867) : been left there was not regarded as sufficient,
Joannes v. Bennett, 5 Allen (Mass.) 169 it being held that the person who was the oc-
(1862) ; Blade v Nolan, 12 Wend. (X. Y.) cupant of the store during that period and
173 (1834) ; Wells v. Martin, 1 Ohio St. 386 who was within reach of the process of the
(1853) ; 5 Chamb., Ev., 3576, n. 1. court, should have been produced. King v.
31. Kearney v. Mayor, 92 N. Y. 617 ( 1883) : Randlett, 33 Cal. 318 ( 1867). Evidence may
Hale v. Darter, 10 Humph. (Tenn.) 92 also be introduced of the admission of an
(1849) ; Trimble v. Edwards, 84 Tex. 497, 19 opponent to the same effect. Pentecoct v.
S. W. 772 (182). State, 107 Ala. 81, 18 So. 146 (1894).
32. Trussing v. Jackson, 208 111. 85, 69 34. Jernegan v. State, 81 Ala 58, 1 So.
N. E. 771 (1904) : Murray v. Buchanan. 7 72 (1886) : Wiseman v. Northern Pac. R. Co.,
Blackf. (Ind.) 549 (1845) : Myers v. Bealer, 20 Or. 425, 26 Pac. 272. 23 Am. St. Rep. 135
30 Neb. 280, 46 N. W. 479 (1890) : Koehler (1891).
v. Schilling, 70 N. J. L. 585, 57 Atl. 154 35. Waller v. Eleventh School Dist., 22
(1904) ; Kearney v. New York, 92 N. Y. 617 Conn. 326 ( 1853) ; Houghtalling v. Houghtal-
(1883); Richardson v. Fellner, 9 Okl. 513. 60 ling (Iowa 1907), 112 N. W. 197: Bartlett
Pac. 270 (1900) ; 5 Chamb., Ev.. 3576, n. 3. v. Robbins, 53 Md. 485 (1879) ; 5 Chamb.,
33. Thus, where it is doubtful whether a Ev., 3577, n. 2.
letter is in the possession of the addressee 36. Wiseman v. Northern Pac. R. Co.,
or of the party who wishes to use its contents supra : 5 Chamb., Ev., 3577, n. 3. Thus,
as evidence, it must be shown that, after the in the case of letters which a party might
use of due diligence, it cannot be found in reasonably suppose would never be of any
the possession of either. Bogan v. McCut- particular value and that no occasion might
chen, 48 Ala. 493 (1872). Similarly, in the ever arise for their use in the future, such
case of a deed which was left in a store, a fact would be considered by the presiding
885 Loss OF ORIGINAL. 1124
suspicion exist that a party is withholding a writing, a rigid inquiry would
be made as to the alleged reasons for its non-production. 37 If it should appear
that the writ ; ng was destroyed by the proponent, the court will require a full
explanation of the circumstances, so that any suspicion of fraud or improper
intent on the part of the one destroying it may be overcome. 38 Proof that an
instrument whose contents a party desires to prove by parol was not intention-
ally destroyed, may also be necessary under some statutes. 39 In any event the
presiding judge must be satisfied that the instrument, the contents. of which a
party seeks to prove by secondary evidence, has, in fact, been lost or destroyed,
before he will permit proof by the latter mode. 40 If he is satisfied that the
claim of the proponent is established, he will admit the writing in evidence;
proof of an absolute character, beyond the possibility of a mistake, will not be
required. 41 If it appears to a reasonable certainty that the instrument in
question has been lost or destroyed, it is ordinarily sufficient to permit of the
introduction of proof of contents by other evidence than that afforded by the
original. 42 The weight and effect of the evidence thus afforded is for the
jury. 43
A Question for the Presiding Judge. The question as to the amount of
proof- which will be sufficient to establish the loss or destruction of the original,
so as to admit other evidence of its contents, is one for the determination of
the presiding judge, taking into consideration the character of the writing and
the circumstances of the case. 44 The ruling must depend upon the circum-
stances of each particular case. 45
judge, in connection with a slighter degree of 41. Taunton Bank v. Richardson, 5 Pick,
proof of inability to produce them than would (Mass.) 436 (1827) ; Burt v. Long, 106 Mich,
be required in the case of some other writing 210, 64 X. W. 60 (1895); Kleinmann v.
of importance, which a person would be more Geiselmanu, 114 Mo. 437, 21 S. W. 796
likely to preserve with greater care. Hoblit (1893) ; Kane v. Metropolitan El. R. Co., 15
v. Houser, 171 111. App. 19 (1913). Daly 294, 6 N. Y. Supp. 526 (1889) ; Wells v.
37. Mordecai v. Beal, 8 Port. (Ala.) 529 Martin, 1 Ohio St. 386 (1853); Bright v.
(1839) ; Minor v. Tillotson, 7 Pet. (U. S.) Allan, 20.3 Pa. 386, 53 Atl. 248 (1902) ; U. S.
99, 32 L. ed. 621 (1833). v. Sutter, 21 How. (U. S.) 170 (1858); 5
38. Bagley v. McMickle, 9 Cal. 430, 447 Chamb., Ev., 3577, n. 9.
(1858); United States v. Reyburn, 6 Pet. 42. Empire State Surety Co. v. Linden-
(U. S.) 352, 367, 8 L. ed. 424 (1832); 5 meier, 54 Colo. 497, 131 Pac. 437 (1913);
Chamb., Ev., 3577, n. 6. Harper v. Scott, 12 Ga. 125 (1852).
39. Vawmazos v. Gloss, 263 111. 314, 104 43. Graham v. Campbell, 56 Ga. 258 (1876).
N. E. 1053 (1914). 44. Hayden v. Mitchell, 103 Ga. 431, 30
40. Larsen v. All Persons, 165 Cal. 407, 132 S. E. 287 (1897) ; Bain v. Walsh, 85 Me.
Pac. 751 (1913); Winler v. Dibble, 251 111. 108, 26 Atl. 1001 (1892); Stevens v. Miles,
200, 95 N. E. 1093 (1911) ; Smith. Carey & 142 Mass. 571, 8 N". E. 426 (1886) ; Wells v.
Co. v. Atchison Live Stock Co., 92 Kan. 5, Pressy, 105 Mo. 164, 16 S. W. 670 (1891);
140 Pac. 108 (1914); Post v. Leland, 184 Isaacs v. Cohn, 10 App. Div. 216, 41 N. Y.
Mass. 601, 69 N. E. 361 (1904) ; Mathes v. Supp. 779 (1896) ; Blackburn v. Blackburn, 8
Switzer Lumber Co., 173 Mo. App. 239, 158 Ohio 81 (1837); Graff v. Pittsburgh & S. R.
S. W. 729 (1913) ; Abel v. Brewster, 12 N. Co., 31 Pa. 489 (1858) ; Moore v. Beattie, 33
Y. Supp. 331 (1890) : Emig v. Diehl, 76 Pa. Vt, 219 (1860) ; 5 Chamb.. Ev., 3578, n. 1.
359 (1874) ; 5 Chamb., Ev., 3577, n. 8. 45. Wells v. Martin, 1 Ohio St. 386 (1853).
1125 BEST EVIDENCE RULE. 886
Province of the Jury. The jury is in no way concerned with the determi-
nation of this question. It is for them to decide on the sufficiency of the evi-
dence afforded by the writing thus proven. 46
1125. Diligence Required in Search. 47 Evidence to prove the loss or de-
struction of a writing must, in order to authorize the relaxation of the rule re-
specting the production of the original, show that reasonable diligence has been
used in searching for the missing document. 48 A mere casual, indifferent or
careless search will not be sufficient. Something more will be required ; some-
thing tending to show that the proponent was actuated by a desire to find the
alleged lost or destroyed instrument and that his efforts were exerted, lone fide,
to accomplish -that result. 49 The court must be satisfied that the party has
acted in good faith in his endeavor to find it; that he has exercised the same
degree of diligence, in his search for it, that an ordinary person, actually de-
sirous of finding and producing it, would have employed, which would re-
quire his looking for it in those places where one might fairly have expected to
find it and the exercise by him, generally, of all reasonable endeavors to dis-
cover it. 50
A Question for the Presiding Judge. The questions whether good faith
has been exercised by a person, in his search for an alleged missing document,
and whether he has exercised the required degree of diligence, are ones which
the presiding judge must determine, in the exercise of sound reason. If he is
satisfied that the proponent has exercised reasonable diligence and good faith,
in his search for the writing, he will permit the introduction in evidence of
secondary evidence of its contents; otherwise it will be rejected. 51 His deter-
mination in the matter will ordinarily not be disturbed on appeal. 52
46. ClasseH v. Mason, 32 Ala. 719 (1858) ; 140 Pa. 648, 21 Atl. 416 (1891) ; 5 Chamb.,
Witter v. Latham, 12 Conn. 392 (1837); Ev., 3579, n. 2.
Page v. Page, 15 Pick. (Mass.) 368 (1834); 49. Post v. Leland, 184 Mass. 601, 69 N.
Jackson v. Firer, 16 Johns. (N. Y.) 193 E. 361 (1904); Kidder v. Blaisdell, 45 Me.
(1819) ; 5 Chamb., Ev., 3578, n. 3. 461 (1858) ; Slocum v. Bracy, 65 Minn. 100,
Review on appeal. The determination of 67 N. W. 843; 5 Chamb., Ev., 3579, n.
the presiding judge in the matter will not, as 3.
a general rule, be reviewed on appeal. Smith 50. Pilcher v. Dothan Mule Co., 6 Ala. App.
v. Brown, 151 Mass. 338, 24 N. E. 31 (1890) ; 552, 60 So. 547 (1913) ; McDonald v. Stark,
Kearney v. Mayor, etc., of New York, 92 N. 176 111. 456, 52 N. E. 37 (1898) ; Bascom v.
Y. 617 (1883). Toner, 5 Ind. App. 229, 31 N. E. 856 (1892) ;
47. 5 Chamberlayne, Evidence, 3579, Atherton v. Phoenix Ins. Co., 109 Mass. 32
3580. (1871); Thomson v. Flint & P. M. R. Co.,
48. Empire Surety Co. v. Lindenmeier, 131 Mich. 95, 90 N. W. 1037 (1902); Klein-
supra; Prussing v. Jackson, supra; Howe v. mann v. Geiselmann, supra: Blair v. Flack,
Fleming, 123 Ind. 262, 24 N. E. 238 (1889) ; 141 N. Y. 53, 35 N. E. 941 (1894) ; Empire
McConnell v. Wildes, 153 Mass. 487, 26 N. E. Transp. Co. v. Steele, 70 Pa. 188 (1871) ; 5
1114 (1891); Windom v. Brown, 65 Minn. Chamb., Ev., 3579, n. 4.
394, 67 N. W. 1028 (1896) ; Dishaw v. Wad- 51. Hobson v. Porter, 2 Colo. 28 (1873) ;
leigh, 15 App. Div. 205, 44 N. Y. Supp. 207 Patterson v. Drake, 126 Ga. 478, 55 S. E.
(1897); Gladstone Lumber Co. v. Kelly, 64 175 ( 1906) ; Kleinmann v. Geiselmann, supra;
Or. 163, 129 Pac. 763 (1913) ; Heller v. Peters, Kearney v. City of New York supra; Gorgas
887
PUBLIC RECORDS.
1126,1127
1126. Public Records; Official and Judicial. 53 Public records, consisting of
official registers, papers and writings and judicial records, constitute an ex-
ception to the rule requiring the production of the original, unless the failure
to produce it is explained to the satisfaction of the presiding judge. In the
inconvenience attending the removal of such records and the danger of loss or
destruction are found the reasons for permitting proof of public records other
than by production of the original. 54 In the case, however, of public official 55
and judicial 56 records, which are shown to have been lost or destroyed, the
same principle controls, as to proof other than by the original, as in the case of
other documents and writings. When the fact of their loss or destruction is
established, to the satisfaction of the presiding judge, he will permit the in-
troduction of parol evidence of their contents. 57
1127. Voluminous Facts in Different Writings. 58 Another instance of
where the court will not insist upon the production of the original occurs
where the evidence consists of the result of voluminous facts, contained in
books, writings and the like, and an examination or inspection of them could
not, conveniently, be made in the presence of the tribunal. 59 In such a case
one who is sufficiently competent and who has examined the particular writ-
ings may be permitted to state the result ascertained by him. 60 The same
v. Hertz, 150 Pa. 538. 24 Atl. 756 (1892);
5 Chamb., Ev., 3580, n. 1.
52. Morison v. Weik, 19 Cal. App. 139,
124 Pac. 86!) (1912); Stevens v. Miles, 142
Mass. 571, 8 X. E. 426 (1886).
53. 5 Chamberlayne, Evidence, 3581.
54. Tobin v. Seay, 2 Brev. (S. C.) 470
(1811); Ballard v. Thomas, 19 Gratt. (Va.)
14 (1868) ; Doe v. Roberts. 13 M. & W. 520
(1844) ; 5 Chamb., Ev., 3581, nn. 1, 2.
55. People v. Pike, 197 111. 449, 64 X. E.
393 (1902); Bowland v. McDonald Ind.
Teleph. Co., 82 Kan. 84, 107 Pac. 797 (1910) :
Winn Parish Bank v. White Sulphur Lumber
Co., 133 La. 282, 62 So. 907 (1913); U. S.
Peg Wood, etc.. Co. v. Bangor & A. R. Co..
104 Me. 472, 72 Atl. 190 (1909) : Wallace v.
First Parish in Townsend, 109 Mass. 263
(1872); Van Pelt v. Parry, 218 Mo. 680,
118 S. W. 425 (1909); Leland v. Cameron,
31 X. Y. 115 (1865) ; Young v. Buckingham,
5 Ohio 485 (1832); Richard's Appeal, 122
Pa. 547, 15 Alt. 903 (1888); 5 Chamb., Ev.,
3581. n. 3.
56. Hibernia Sav. & Loan Soc. v. Boyd, 155
Cal. 193, 100 Pac. 239 (1909): Brown v.
Madden, 141 Ga. 419, 81 S. E. 196 (1914);
Kennedy v. Borah. 226 111. 243, 80 X. E. 767
(1907); Dailey v. Coleman. 122 Mass. 64
(1877) ; Crane v. Waldron, 133 Mich. 73, 94
N. W. 593 (1903); McKellar v. McKay, 156
X. C. 283, 72 S. E. 375 (1911); Heeney v.
Kilbane, 59 Ohio St. 499, 53 N. E. 262
(1898); Coombs v. Cook, 35 Okl. 326, 129
Pac. 698 (1913); Richard's Appeal, supra;
5 Chamb., Ev., 3581, n. 4.
57. Davies v. Pettit, 11 Ark. 349 (1850);
Morrison v. Price. 130 Ky. 139, 112 S. W.
1090 (1908); Davis v. Montgomery, 205 Mo.
271, 103 S. W. 979 (1907); 5 Chamb., Ev.,
3581, n. 5.
58. 5 Chamberlayne, Evidence, 3582.
59. Xew La Junta & Lamar Canal Co. v.
Kyerhill, 17 Colo. App. 26, 67 Pac. 1026
(1902); Elmira Roofing Co. v. Gould, 71
Conn. 629, 42 Atl. 1002 (1899); Culver v.
Marks, 122 Ind. 554, 23 N. E. 1086 (1889) ;
State v. Brady, 100 Iowa 191, 69 X. W. 290
(1896) ; Greenfield v. Massachusetts Mut. L.
Ins. Co., 47 X. Y. 430 (1872) ; Boston 7 W.
R. Co. v. Dana, 1 Gray (Mass.) 83 (1854);
Scott v. Astoria R. Co.. 43 Or. 26, 72 Pac.
594 (1903) ; 5 Chamb., Ev., 3582, n. 1.
60. Elmira Roofing Co. v. Gould, supra.
Thus, where a witness has been permitted,
as bearing upon the question of a person's
solvency, to state the result of an inspection
by him of books of account, securities and the
like belonging to such person. Meyer V.
Sefton, 2 Stark. 274 (1817). In like manner
1128 ' BEST EVIDENCE KULE.
principle controls where the results sought to be established are negative, in-
stead of affirmative, as where the object is to show that the books examined
did not contain certain facts. 61 In such cases, however, it has been held that
if required by the opposing party the books should, unless some legal excuse
exists, be produced for examination or to enable him to cross-examine the
witness." 2 It frequently happens that the result of an examination of volu-
minous books is embodied in the form of an abstract or schedule, containing
in itself numerous ligures, tabulations or statements which if orally stated
to the jury might nevertheless tend to confuse them in their deliberations.
Therefore an abstract made as a result of an examination, by an expert, may
be received in evidence where such person has testified as a witness and an
opportunity has been afforded for cross-examination. 63
1128. Writing Collateral to Issues. 64 The " best evidence rule " is not
operative in all cases, as exclusive of proof by parol of some fact or facts evi-
denced by the instrument. In so far as the contents of the writing are con-
cerned and the legal effect thereby created it may be collateral to the issue, in
which case some fact asserted therein may be established by extrinsic evidence. 65
Thus, where it is desired to prove the existence of a partnership, and not the
mutual obligations and rights, as expressed in the partnership agreement, parol
evidence has been received to establish that fact. 66 So, where the fact that a
person occupies the relation of a tenant to another is sought to be proved, proof
of the relation may be made by extrinsic evidence. 07 In like manner where
a witness may be permitted to testify as to he had no account at that time. People v.
a balance due between parties. Walford v. Dole, 122 Cal. 486, 55 Pac. 581 (1898).
Farnham, 47 Minn. 05, 4l X. W. 528 (1891) ; 62. Elmira Roofing Co. v. Gould, supra;
Roberts v. Duxon, Pea 83, 3 R. R. 660 (1791). Culver v. Marks, supra.
Thus witnesses who, in an official capacity, 63. Culver v. Marks, supra. The question
have examined the accounts of a state treas- of the admission of an abstract or schedule
urer in his dealings with the state and who is a matter for the presiding judge to de-
have made a written report in regard thereto, termine as a matter of sound administration,
have been permitted to testify as to the gen- Lynn v. Cumberland, 77 Md. 449, 26 Atl. 1001
eral balance of his accounts with the state. (1893).
Burton v. Driggs, 20 Wall. (U. S.) 125, 22 64. 5 Chamberlayne, Evidence, 3583.
L. ed. 269 (1873). 65. Knight v. Landis, 11 Ga. App. 536, 75
A report of a city treasurer is not rendered S. E. 834 (1912); Johnson v. Carlin, 121
secondary evidence by the fact that it is Minn. 176, 141 N. W. 4 (1913); Hoisting
copied from other records in his office. The Mach. Co. v. Goeller Iron Works, 84 N. J. L.
reports were made pursuant to official duty 504, 87 Atl. 331 (1913); Peter's & Roberts
and were originals and not mere copies. Furniture Co. v. Queen City F. Ins. Co., 63
Dickinson v. White, 25 X. D. 523, 143 N. W. Or. 382, 126 Pac. 1005 (1912) ; 5 Chamb.,
754, 49 L. R. A. (X. S.) 302 (1013). Ev., 3583, n. 1.
61. Woodruff v. State, 61 Ark. 157, 170, 32 66. Griffin v. Stoddard, 12 Ala. 783 (1848) ;
S. W 102 (IS!).')). Such a situation is pre- Trowbridge v. Cushman, 24 Pick. (Mass.)
sented where a witness is permitted to testify 310 (1834) ; Price v. Hunt, 59 Mo. 258
that he had examined the books of a bank (1875); Edwards v. Tracy, 62 Pa. 374
to ascertain whether the defendant, when he (1869) ; Cutler v. Thomas, 25 Vt. 73 (1852) ;
passed a check and received an advance on 5 Chamb., Ev., 3583, n. 2.
it, had any account with the bank, and that 67. Doe v. 'dray, 2 Houst. (Del.) 135
889
POSSESSION OF ADVERSE PARTY.
1129
the question of the ownership of personal 6S or real property 69 is collateral to
the issue, proof of such fact by parol evidence has been allowed. That a par-
ticular writing has been executed may also be shown in this manner. 70 In
much the same way, evidence apart from the writing itself has been received
to show the fact of a sale, 71 an indebtedness, 72 the delivery of a contract. 73
that one is president of a corporation, 74 the payment of a license fee, 75 taxes 78
or money upon an order, 77 or in settlement of an account 78 and the like.
1129. Writing in Control of Adverse Party. 79 Another instance of where
the production of an original instrument is excused exists where it is in the
possession or under the control of the opponent, who fails or refuses to produce
it after reasonable notice to him to do so. 80 In such case the same principle
controls as where the document is lost or destroyed. It is the fact that the
instrument is not within the power of the party to produce which permits of
the introduction of secondary evidence. 81
Notice to Produce; Necessity of. The proponent will be required, as a
(1858) ; Straw v. Jones, 9 N. H. 400 (1838) ;
Rayner v. Lee, -20 i -h. 384 (1870) ; Bogar-
dus v. Trinity Church, 4 Sandf. Ch. (X. Y.)
33 (1847) ; Wolf v. Unlhelm (Tex. Civ. App.
1912), 146 S. W. 216; Taylor v. Peck. 21
Gratt. (Va.) 11 (1871); 5 Chamb., Ev.,
3583, n. 3.
68. Patterson v. Kicker, 72 Ala. 406
(1882) : Oaks v. West (Tex. Civ. App. 1901),
4 S. W. 1033; Sleep v. Heymann, 57 Wis.
495, 16 N. W. 17 (1883); 5 Chamb., Ev.,
3583, n. 4.
69. Wright v. Roberts, 116 Ga. 194, 42 S.
E. 369 (1902); Tucker v. Welsh, 17 Mass.
160, 9 Am. Dec. 137 (1821); Babcock v.
Beaver Creek Tp., 65 Mich. 479, 32 X. W.
653 I 1887 i -. 5 Chamb., Ev.. 3583. n. 5.
70. McLendon v. Rubenstine, 180 Ala. 615,
61 So. 902 (1913) ; Massey v. Farmers' Xat.
Bank, 113 111. 334 (1885) : Gilbert v. Duncan,
29 X. J. L. 133 (1861): Reynolds v. Kelly,
1 Daly (X. Y.) 283 (1S63); Shoenberger v.
Haokman, 37 Pa. 87 (1860); 5 Chamb.. Ev.,
3583, n. 6.
Proofs of loss. Hagan v. Merchants' &
Bankers' Ins. Co., 81 Iowa 321, 46 X. W.
1114, 25 Am. St. Rep. 492 (1890); Pelzer
Mfg. Co. v. Sun Fire Office, 36 S. C. 213, 15
S. E. 562 (1891).
71. Johnson v. Carlin, supra.
72. Stein v. Local Board of Review, 135
Iowa 539. 113 X. W. 339 (1907): Cooper v.
Breckenridge, 11 Minn. 341 (1866).
73. Pecos & X. T. Ry. Co. v. Cox (Tex. Civ.
App. 1912), 150 S. W. 265.
74. Knight v. Landis, supra.
75. Eastman & Co. v. Watson, 72 Wash.
522, 130 Pac. 1144 (1913).
76. Shepherd v. Sartain, 185 Ala. 439, 64
So. 57 (1914).
77. Phillips v. Pippin, 4 Ala. App. 426, 58
So. Ill (1912).
78. Raymond v. Sellick, 10 Conn. 480
(1835) ; 5 Chamb., Ev., 3583, n. 14.
79. 5 Chamberlayne, Evidence, 3584-
3586.
80. Atlantic Coast Line R. Co. v. Hill,' 12
Ga. App. 392, 77 S. E. 316 (1913); Young
v. People, 221 111. 51, 77 N. E. 536 (1906);
Chicago, etc., R. Co. v. Benedict's Adm'r., 154
Ky. 675, 159 S. W. 526 (1913); Morse v.
Woodworth, 155 Mass. 233, 29 X. E. 525, 27
X. E. 1010 ( 1891) ; Hoffman Heading & Stave
Co. v. St. Louis, etc., Ry. Co., 119 Mo. App.
495, 94 S. W. 597 (1906) ; Bissell v. Myton,
160 App. Div. 268, 145 X'. Y. Supp. 591
(1914): John v. John, Wright (Ohio) 584
(1834) ; McFadden v. McFadden, 32 Pa. Su-
per. Ct. 534 (1907); Missouri, K. & T. Ry.
Co. v. Elliott, 102 Fed. 96, 42 C. C. A. 188
(1900) ; 5 Chamb., Ev., 3584. n. 1.
81. Attorney-General v. Le Merchant, 2 T.
R. 201 (1772). The fact that the adverse
party is not in the actual possession of the
writing called for is not material: if he has
the legal right to, and may demand, posses-
sion of the instrument, his failure to produce
it will authorize the admission of secondary
evidence. Wilson v. Wright, 8 Utah, 215, 30
Pac. 754 (1892) ; 5 Chamb., Ev., 3584, n. 3.
1120 BEST EVIDENCE RULE. 890
general rule, to show to the satisfaction of the presiding judge that the adverse
party, being in possession of the writing, has failed or refused to produce the
same, after notice given to him or to his attorney,** 2 sufficiently reasonable in
point of time to allow of its production at the trial. 83 The object of the notice
is to give sufficient opportunity to an opponent to enable him, if he desires, to
produce the writing so that the tribunal may be in the possession of the best
evidence of its contents, and where he fails to produce it, to satisfy the court
that the propou ;i; is entitled to introduce secondary evidence, owing to his
inability to procure the original. 84 It is the general rule that, if the adverse
party is in possession of the document and it is in court, a demand for its pro-
duction at the trial, without any prior notice, is sufficient. 85 A formal written
notice to an opponent to produce a writing may also be excused where, from
the nature of the proceeding, the pleadings and the like, knowledge by him of
the fact that the instrument will be required may be presumed. 86 Under such
circumstances a failure by him to produce it will, without any formal notice
calling for its production, enable the proponent to introduce other evidence of
its contents. 87 Much the same principle, as is mentioned in the last instance,
controls where the writing in question is a notice; such as a notice to quit,
notice of protest and the like. 88 A denial by the adverse party of his ever
having been in possession of the writing desired, as where, in the case of a
letter 89 or telegram 90 he denies ever having received it, has been considered as
excusing the proponent from giving notice to him to produce it.
82. Rockwell Stock & Land Co. v. Castroni, Gorton, 15 Misc. 625, 37 N. Y. Supp. 334
6 Colo. App. 521, 42 Pac. 180 (1895) ; Janatt (1896) ; Scioto Valley R. Co. v. Cromin, 38
v. Corbett, 99 Ga. 72, 24 S. E. 408 (1896); Ohio St. 122 ( 1882) : 5 Chamb.,Ev., 3585, n. 4.
International Text-Book Co. v. Mackhorn, 158 86. Brown v. Booth, 66 111. 419 (1872) ; Mc-
111. App. 543 (1911); Anderson Bridge Co. v. Ginnis v. State, 24 Ind. 500 (1865); Rose
Applegate, 13 Ind. 339 (1859); Com. v. Em- v. Lewis, 10 Mich. 483 (1862); Nealley v.
ery, 2 Gray (Mass.) 80 (1854); Weeks v. Greenough, 25 N. H. 325 (1852); Eisenhart
Lyon, 18 Barb. (X. Y.) 530 (1854) ; Choteau v. Slaymaker, 14 Serg. & R. (Pa.) 153
v. Raitt, 20 Ohio 132 (1851); Eibert v. (1826); U. S. v. Doehler, 1 Baldw. (U. S.)
Finkheiner, 68 Pa. 234, 8 Am. Rep. 176 519 (1832); 5 Chamb., Ev., 3f>85, n. 5.
(1871) ; 5 Chamb., Ev., 3585, n. 1. 87. Continental L. Ins. Co. v. Rogers, 119
83. Burke v. Table Mountain Water Co., 12 111. 474, 10 X. E. 242 (1887): Hooker v.
Cal. 403 (1859); Jack v. Rowland, 98 111. Eagle Bank of Rochester, 30 X. Y. 83, 86
App. 352 (1901) ; Lowell v. Flint, 20 Me. 401 Am. Dec. 351 (1864) ; Peter & Roberts Furni-
(1841); Pitt v. Emmons. 92 Mich. 542, 52 ture Co. v. Queen City Fire Ins. Co., supra:
X. \V. 1004 (1892) ; Utica Ins. Co. v. Cadwell, McClean v. Hertx.og, 6 Serg. & R. (Pa.) 154
3 Wend. (X. Y.) 296 (1829) ; Beard v. South- (1820) ; 5 Chamb., Ev., 3585, n. 6.
ern Ry. Co., 143 X. C. 137, 55 S. E. 505 88. Brown v. Booth, supra ; Brentner v.
(1906) : Barton v. Kane, 17 Wis. 37, 84 Am. Chicago, etc., R. Co., 58 Iowa 625, 12 X. W.
Dec. 728 (1863) ; 5 Chamb., Ev., 3585, n. 2. 615 (1882) ; Edwards v. Bonneau, 1 Sandf.
84. Sayer v. Glossop, 2 Exch. 400 (1848) ; 5 (X. Y.) 610 (1848) ; Morrow v. Com., 48 Pa.
Chamb., Ev., 3585, n. 3. 305 (1864) ; 5 Chamb., Ev., 3585, n. 7.
85. Stadler x Brewing Co. v. Weadley, 99 111. 89. Boyd v. Warden, 163 Cal. 155. 124 Pac.
App. 161 (1900); Dana v. Boyd, 2 J. J. 841 (1012).
Marsh. (Ky.) 587 (1828) ; Overlook v. Hall, 90. Kobl v. Bradley, Clark & Co 130 Wis
81 Me. 348, 17 Atl. 169 (1889); Whelan v. 301, 110 X. W. 265 (1907).
891 POSSESSION OF THIKD PAETY. 1130
Requirements as to Notice. The notice to produce, in order to accomplish
the purpose for which it is intended, should so designate the writing, or writ-
ings called for as to inform the adverse party of the particular instrument
required. As a general rule, if the writing desired is described in such a
manner that the adverse party must have been aware of what particular instru-
ment was called for, it will be sufficient 01 to the extent that a failure or re-
fusal to comply therewith being shown, secondary proof concerning the con-
tents will be admitted. 92
1130. Writing in Possession or Control of Third Party; Out of Jurisdiction. 93
If a writing is in the possession or control of a third party, the proponent
will not be permitted to produce extrinsic proof of its contents, until the pre-
siding judge has been satisfied of his inability, after having used all proper
efforts, to obtain the original. 94 There is, apparently, an entire lack of har-
mony as to the admissibility of secondary evidence of the contents of a writ-
ing, which is in the possession of a third party, who is beyond the jurisdiction
of the court. Many courts require that some effort or the use of due dili-
gence by the proponent, in seeking to obtain the writing in question, must be
shown before the presiding judge will admit secondary evidence of its con-
tents. a5 According to other decisions it is sufficient if it appears that efforts to
procure it would be fruitless. 96 The United States Supreme Court has, how-
ever, declared that secondary evidence of the contents of a writing may be given
upon proof, merely, that it is beyond the jurisdiction of the court. 97 This
doctrine also has the sanctions of numerous other jurisdictions 98 and seems
to be that which is most consistent with the principles of sound administration.
91. Rogers v. distance, 2 Moo. & Rob. 170 348, 65 N. W. 203 (1895) ; 5 Chamb., Ev.,
(1839). 3587, n. 3.
92. Burke v. Table Mountain Water Co., 97. Burton v. Driggs, 20 Wall. (U.S.) 125,
supra; McDowell v. Aetna Ins. Co., 164 Mass. 22 L. ed. 299 (1873) . " It is well settled that
444, 41 X. E. 665 (1895) ; Walden v. Davison, if books and papers necessary as evidence in
11 Wend. (X. Y.) 65, 25 Am. Rep. 602 one State be in the possession of a person
(1833); 5 Chamb., Ev., 3586, n. 2. living in another State, secondary evidence,
93. 5 Chamberlayne, Evidence, 3587. without further showing, may be given to
94. Scott v. Bassett, 186 111. 98, 57 X. E. prove the contents of such papers, and notice
875 (1900); Butler v. Mail & Express Pub. to produce them is unnecessary." Id., per
Co., 171 X. Y. 208, 63 X. E. 951 (1902); 5 Mr. Justice Swayne.
Chamb., Ev., 3587. n. 1. 98. Webb v. Gray, 181 Ala. 408, 62 So. 194
95. McDonald v. Erhes, 231 111 295, 83 X. (1913); Zellerbach v Allenberg, 99 Cal. 57,
E. 162 (1907) ; Waite v. High, 96 Iowa 742, 33 Pac. 786 (1893) ; Owers v. Olather Silver
65 X. W. 397 (1895) ; Knowlton v. Knowl- Min. Co.. 6 Colo. App. 1, 39 Pac. 980 (1895) ;
ton, 84 Me. 283. 24 Atl. 847 (1892) ; Pringey Stewart Bros. v. Randall Bros., 138 Ga. 796,
v. Guss. 16 Okl. 82, 86 Pac. 292 (1905) : Wise- 76 S. E. 352 (1912) ; Wright v. Chicago, etc.,
man v. Xorthern Pac. R. Co., 20 Or. 425, 26 R. Co., 118 Mo App 392. 94 S. W. 555
Pac. 272 (1891) : Bruger v. Princeton & St. (1906) ; Butler v. Mail & Express Pub. Co.,
M Mut. F. Ins. Co., 129 Wis. 281, 109 X. W. supra; Wiseman v. Xorthern Pac. R. Co.,
95 (1906) ; 5 Chamb., Ev.. 3587, n. 2. supra; Ralph v. Brown. 3 Watts & S. (Pa.)
96. Bishop v. American Preservers Co.. 157 395 (1842) ; Texas, etc., Ry. Co. v. Berlin
111. 284, 41 X. E. 765 (1895): L'Herbette v. (Tex. Civ. App. 1914), 165 S. W. 62; 5
Pittsfield Xat. Bank, 162 Mass. 137, 38 N. E. Chamb., Ev., 3587, n. 6.
368 (1894); People v. Seaman, 107 Mich
CHAPTER LX.
EVIDENCE BY PERCEPTION.
Evidence by perception; meaning of term, 1131.
Administrative power of court, 1132.
Subjects of; animals, 1133.
persons; facts to be proved; age, 1134.
resemblance, paternity, etc., 1135.
things; in civil actions, 1136.
In criminal cases, 1137.
Experiments, 1138.
View, 1139.
1131. Evidence by perception; meaning of term. 1 Eeal evidence is a term
which covers those facts which are presented to the perceptive faculties of the
court and jury by things ; personal evidence is a term which denotes such facts
as have their origin or source in persons, whether viewed in a physical or
mental capacity, or regarded as acting in an involuntary or voluntary manner ;
and such portion of personal evidence as falls within the direct observation of
the judge or jury constitutes, together with real evidence as above defined,
evidence by perception. 2 This term will be used in the following sections,
evidence by perception having reference to those facts of which the court
acquires knowledge by the exercise of its own perceptive faculties. 3 In a
great measure proof by this means may be more potent than by any other
evidence. It is not founded upon the opinion or testimony of others but upon
the knowledge acquired by the exercise of one's own senses, 4 which is ordi-
narily the most convincing. What one sees or hears is a matter of personal
knowledge and furnishes to him a much better test of truth, a stronger prob-
ability of the existence of the fact observed, than would result from the testi-
mony of others. 5 Therefore, such evidence will ordinarily be received.
1132. Administrative Power of Court. 6 The question whether such evi-
dence shall be admitted is largely one for the presiding judge to determine, as
a matter of sound administration, 7 or, as it is frequently expressed, it is a
1. 5 Chamberlayne, Evidence, 3588. 4. Warlick v. White, 76 N. C. 175 (1877).
2. Supra, 21: 1 Chamb., Ev., 31. See 5. Gentry v. McMinnis, 3 Dana (Ky.) 382
also, 1 Chamh., Ev., 27-31 for discussion (1835); 5 Chamb., Ev., 3588.
of real evidence and evidence by perception. 6. 5 Chamberlayne, Evidence, 3589,
3. People v. Kinney, 124 Mich. 486, 83 N. 3590.
W. 147 (1900) : House v. State, 42 Tex. Cr. 7. Marshall v. Gantt, 15 Ala. 682 (1849) ;
125, 57 S. W. 825 (1900). Leonard v. Southern Pac. Co., 21 Or. 555, 28
892
893 ANIMALS. 1133, 113-1
matter in the discretion of the court, 8 having in view the proper application of
the general rules of evidence. If the evidence offered is too remotely related
to the issues involved to be of any evidentiary value it will be rejected, 9 as in
other cases. It will, however, ordinarily be received if it is relevant to the
issue involved, 10 even though it may be offensive to the senses, unless the
fact to be proved may be established equally as well by some other evidence, 11
and providing it is not indecent. An exception may, however, well be, and
should be, made, and the evidence rejected, where it would be contrary to
public policy, morals or decency to admit it. 12 Thus the presiding judge might
properly reject an offer to prove a fact by an exposure of the person which
would be indecent and shock one's sensibilities. 13 He may also in the exercise
of his administrative powers refuse to admit the evidence where it would tend
to prejudice, 14 confuse, or mislead the jury. 15
Review by Appellate Court. Owing to the fact that this evidence is of
such a character that it cannot be reported on appeal, it has been held that the
discretion exercised by the presiding judge, in respect to the admission or
rejection of such evidence, is not subject to review. 16 It would seem, however,
that in a case of clear abuse of discretion by the trial court, the appellate court
may act, as in other cases of a want of sound administration of the rules of
evidence in the court below. 17
1133. Subjects Of; Animals. 18 The presiding judge may, in the exercise
of his administrative powers, permit the production of animals in court, or an
inspection of them outside of the court, whenever the evidence afforded thereby
is relevant to the issue. 19
1134. Persons ; Facts to be Proved; Age, 20 etc Where the age of a person is
a relevant fact, the tribunal may, in many cases, be guided by an observation
of his or her appearance. 21 In the great majority of cases, better evidence,
Pac. 887 (1892) ; 5 Chamb., Ev.. 3589, n. 1. 15. Mann v. Sioux City & P. R. Co., 46
S.Tudor Iron Works v. Weber, 129 111. Iowa 637 (1877): Stewart v. Everts, 76 Wis.
535. 21 X. E. 1078 (1889). 35, 44 N. W. 1092 (1890); 5 Chamb., Ev.,
9. Murrah v. State (Tex. Civ. App. 1901), 3589, n. 9.
63 S. W 318: State v Burnham, 56 Vt. 445, 16. Harris v. Ansonia, 73 Conn. 359, 47
48 Am. Rep. 801 (1884). Atl. 672 (1900).
10. People v. Fernandez, 35 N. Y. 49, 62 17. Meier v. Weikel, 22 Ky. L. Rep. 953, 59
(1866) S. W. 496 (1900) ; Hunter v. Allen, 35 Barb.
11. Knowles v. Crampton, 55 Conn. 336 (N. Y.) 42 (1860); Philadelphia v. Rule, 93
(1887). Pa. 15 (1880) : 5, Chamb., Ev., 3590, n. 2.
12. Aspy v. Botkins, 160 Ind. 170, 66 X. E. 18. 5 Chamberlayne, Evidence, 3591.
462 (1902) ; Vierling v. Binder, 113 Iowa 337, 19. Dillard v. State, 58 Miss. 368 (1880) ;
85 X. W. 621 (1901). Beaver v. Whitney. 3 Pa. Co. Ct. 613 (1885) ;
13. Warlick v. White, supra. 5 Chamb., Ev., 3591, n. 1.
14. Louisville & X. R. Co. v. Pearson, 97 20. 5 Chamberlayne, Evidence, 3592-
Ala. 211, 12 So 176 (1893) : Rost v. Brooklyn 3599.
Heights R Co . 10 App. Div. 477, 41 X. Y. 21. First Xat. Bank v. Casey, 158 Iowa 349,
Supp. 1069 (1896) ; Selleck v. Janesville, 104 138 X. W. 897 (1913): Com. v. Hollis, 170
Wis. 570, 80 X. VV. 944 (1899). Mass. 433, 49 X. E. 632 (1898); People v.
1134 EVIDENCE BY PERCEPTION. 894
tending to more satisfactorily establish such fact, is obtainable and should be
produced. 22 Each case, however, must depend upon its own facts. 23
Color, Race, Etc. The question of the color of a person id a matter re-
specting which the court may often obtain knowledge from observation. 24
This method of perception, as an aid in establishing such fact, is more fre-
quently employed in cases of alleged mixed ancestry. -
Identity. The question of identity is one concerning which the tribunal
may well exercise its sense of perception. 20 Thus the identity of a person
may be proved by inspection and when so established it will require strong-
proof to the contrary to overcome it. 27
Mental Condition, Insanity, Intelligence, Etc. The question of the mental
condition of a person such as whether he is insane or an idiot, while one
upon which expert testimony is of much weight, 28 is, nevertheless, a matter
for observation by the tribunal before which the issue is being tried. Thus a
person's appearance, actions and conduct are matters concerning which the
tribunal may exercise its perceptive faculties as an aid to a determination re-
specting his mental condition. 29 Similarly where a person of tender years is
called as a witness, the question of his intelligence may be determined by the
court on an examination on voir dire.
Physical Injuries. Unless the exhibition be such as may be characterized
as indecent, 31 it is, as a general rule, permissible in actions to recover dam-
ages for physical injuries, sustained as the result of some wilful or negligent
act, to exhibit the part of the body injured to the tribunal. 32 The rule of
Meade, 10 X. Y. Supp. 943 (1890) ; Hermann 3594, n. 1. The exhibition to the jury in a
v. State, 73 Wis. 248, 41 X. W. 171 (1888) ; bastardy case of a child three years old to
5 Chamb., Ev., 3592, n. 1. And where a show a resemblance between the child and the
person has voluntarily presented himself as a alleged father is error as the child is too
witness in his own behalf and has testified young to have distinctive features. Johnston
as to his age, a direction by the court that v. Great Xorthern R. Co., 128 Minn. 365, 151
he stand up before the jury that they may X. W. 125, L. R. A. 1917 B 1140 (1915).
judge of his age from his appearance is in 27. William's Case, supra.
no way a violation of the constitutional pro- 28. Supra, 722, 812; 3 Chamb., Ev., 88
vision that an accused person shall not be 2007 et seq ; 8 2415 et sea
compelled to give evidence against himself. 29. Com. Braley, 1 Mass. 103 (1804) ; Beau-
Williams v. State, 98 Ala. 52, 13 So. 333 bien v. Cicotte, 12 Mich. 459 (1864) ; Matter
< 18!<2 >- of Russell, 1 Barb. Ch. (X. Y.) 38 (1845);
22. Stephenson v. State, 28 Ind. 272 5 Chamb., Ev., 3595, n. 2.
(1867); Robinius v. State, 63 Ind. 235 30. Com. v. Robinson, 165 Mass. 426, 43
< 18 " 8 )- x I'-- 121 ( 185)6-) : State v. Juneau, 88 Wis.
23. Hermann v. State, supra. 180, 59 X. W. 580 (1894) ; Wheeler v. U. S.,
24. CJarvin v. State, 52 Miss. 207 (1876) ; 159 I'. S. 523, 16 S. Ct. 93, 40 L. ed. 244
Almshouse C'om'rs v. Whistelo, 3 Wheel. Cr. (1895) : 5 Chamb., Ev., 3595, n. 3.
(N. Y.) 1!)4 (1808). 31. Brown v. Swineford, 44 Wis. 282, 28
25. Chancellor v. Milly, 9 Dana (Ky.) Am. Rep. 582 (1878).
23 (1839); Warlick v. White, 76 X. C. 175 32. Stewart v. Driscoll, 56 Colo 316 139
( 1877 ) ; 3 Chamh., Kv.. 3593, n. 2. Pa,, is , ,,, 14) . Johnson v Wasson Coa j Co
26. William's Case, 29 Fed. Cas. Xo. 17,709, 173 111. App. 414 (1913) Cleveland etc R
Crabbe (U. S.) 243 (1839); 5 Chamb, Ev. Co. v. Colson, 51 Ind. App 225 99 x' E
895 PHYSICAL EXAMINATION. t 1134
relevancy, also, controls, as in all other cases, and, if the evidence is irrelevant,
it will be rejected. 33 Such an exhibition is not subject to the influence of
bias, to which the testimony of witnesses may be ; on the other hand, the tribunal
is in the possession of the best evidence obtainable which, in other instances,
the proponent is required to produce and, for the exclusion of which, in this
particular class of cases there is no satisfactory reason to be found. 34 If,
however, the presiding judge is satisfied that no good object will be attained by
the proposed exhibition and that the main controlling reason is to make an
appeal to the jury and arouse their sympathies, he will refuse to permit it. 35
It should appear that the condition, at the time of the exhibition, was a result
of the injury sustained and for which the action is brought and not due to some
other cause which has intervened. 36
Compulsory Submission to Examination. Among the several decisions
which are opposed to the exercise by the court of a power, independent of
statute, compelling a plaintiff, in a civil action for physical injuries, to submit
his person to an examination, for the purpose of discovering the extent of his
injury, that of the United States Supreme Court, as enunciated by Mr. Jus-
tice Gray, 37 is perhaps the most frequently referred to. The conclusion
reached by the court, in this case, is based upon the ground of the sacred right
of the individual to the possession and control of his own person, free from
inviolability, and that there is no power, at common law, to compel a person to
forego this right by submission to an examination by order of court. This
view, which is also endorsed in other jurisdictions, 38 was dissented from by
two justices of the United States Supreme Court, in the case just referred
to, 39 in an opinion written by Mr. Justice Brewer, and the conclusion, as ex-
pressed in the prevailing opinion, has not met with approval, in the majority
433 (1913): Jameson v. Weld, 93 Me. 345, 36. French v. Wilkinson, 93 Mich. 322, 53
45 Atl. 299 (1899): Willis v. Browning, 161 N. W. 530 (1892).
Mo. App. 461, 143 S. W. 516 (1912) : Perry 37. Union Pac. R. R. Co. v. Botsford, 141
v. Metropolitan St. R. Co., 68 App. Div. 351, U. S. 250, 35 L. ed. 734, 11 S. Ct. 1000
74 X. Y. Supp. 1 (1902): Continental Cas- (1890). Right to compel party to action to
ualty Co. v. Wynne, 36 Okl. 325, 129 Pac. submit to a physical examination either be-
16 (1913): 5 Chamb., Ev.. 3596. n. 2. fore trial or in the presence of the jury. See
Photographs showing a person's crippled con- note, Bender, ed., 129 N. Y. 51.
dition have been received. Faivre v. Mander- 38. Mills v. Wilmington City R. Co., 1
echeid, 117 Iowa 724. 90 N. W. 76 (1902). Marv. (Del.) 269, 40 Atl. 1114 (1894): Pe-
33. Grand Lodge B. of R. T. v. Randolph. oria, etc.. Ry. Co. v. Rice, 144 111. 227, 33 N.
186 111. 89, 57 X. E. 882 (1900). E. 951 (1S93) ; Stack v. Xew Haven & H. R.
34. Faivre v. Manderscheid, supra; Carrico Co., 177 Mass. 155, 58 X. E. 686 (1900) : Mc-
v. West Va. Cent. & P. Ry. Co., 39 W. Va. Quigan v. Delaware, L. & W. H. Co., 129 X.
86, 19 S. E. 571, 24 L. R. A. 50 (1894). Y. 50, 29 X. E. 235 (1891) : Easier v. South-
35. Louisville & X. R. Co. v. Pearson, 97 ern Ry. Co.. 60 S. C. 117, 38 S. E. 238
Ala. 211, 12 So. 176 (1893); Svetkovic v. (1900)'; Gulf, etc., R. Co. v. Brown (Tex.
Union Pac. R. Co., 95 Xeb. 369. 145 X. W. Civ. App. 1903), 75 S. W. 807; 5 Chamb.,
990 (1914) ; Rost v. Brooklyn Heights R. Co., Ev.. 3597, n. 2.
10 App. Div. 477, 41 X. Y. Supp. 1069 (1896) ; 39. Union Pac. R. Co. v. Botsford, supra.
5 Chamb., Ev., 3596, n. 6.
1134 EVIDENCE BY PERCEPTION.
of the cases in which the question has arisen, the weight of authority being
that the court may, in the absence of any statutory power, require a submis-
sion to such an examination. 40 In these cases, while the theory of the in-
violability and sacredness of the person from interference by others is recog-
nized, the extent to which it is carried is said to be based upon, as it is ex-
pressed in one opinion, " a fallacious and somewhat sentimental line of argu-
ment," which would, in many cases, operate as a " denial of justice." 4 An
examination of the opinions, which decide against the existence of the power,
certainly fails to disclose the reasons of any great weight in support of their
conclusion. Much of the same situation exists where the presiding judge is
requested to direct a person to perform some physical act, in the presence of
the jury, to show the nature and extent of the injuries. Thus it seems that,
in such a case, the court may, in its discretion, grant or refuse a request to
direct a person to walk in the presence of the jury, where it is claimed that
the injury has resulted in lameness. 42 Where a party has voluntarily ex-
hibited a physical injury to the jury, the right of the opponent to have an
examination made by experts, for the purpose of introducing their testimony
respecting the injury, is recognized and a denial of a request to that effect
has been held to be error. 43
Exercise of Power by Presiding Judge. Those jurisdictions which recog-
nize the existence of the power to compel a person to submit his body, or some
part thereof, to an examination in actions for physical injuries, do not gener-
ally regard the order as one which may be insisted upon as a matter of right. 44
40. Bagwell v. Atlanta Consol. St. Ry. Co., subject it is said that the following propoai-
109 Ga. 611, 34 S. E. 1018 (1899) ; Aspy v. tions may be regarded as established by the
Botkins, 160 Ind. 170, 66 X. E. 462 (1902) ; cases which sustain what may be said to be
Strudgeon v. Sand Beach, 107 Mich. 496, 65 the prevailing opinion of the courts. " ( 1 )
N. W. 616 (1895) ; Aske v. Duluth & Iron That trial courts have the power to order the
Range R. Co., 83 Minn. 197, 85 N. W. 1101 medical examination by experts of the injured
(1901) : Fullerton v. Fordyce, 144 Mo. 519, 44 parts of a plaintiff who is seeking to recover
S. \V. 1053 (1898); McGovern v. Hope, 63 damages therefor; (2) that a defendant has
N. J. L. 76, 42 Atl. 830 ( 1899) ; Miami Turn- no absolute right to demand the enforcement
pike Co. v. Baily, 37 Ohio St. 104 (1881); of such an order, but the motion therefor is
Hess v. Lake Shore & M. S. R. Co., 7 Pa. Co. addressed to the sound discretion of the trial
( t. .105 I'lHDO) ; 5 Chamb., Ev., 3597, n. 5. court; (3) that the exercise of such discretion
41. Wanek v. Winona, 78 Minn. 98, 80 X. ia revieuable on appeal, and correctible in
case of al.use; (4) that the examination
42. Hattield v. St. Paul & Duluth R. Co., should be applied for and made before enter-
33 Minn. 130, 22 X. W. 176 (1885). ing upon the trial, and should be ordered and
43. Haynes v. Trenton, 123 Mo. 326, 27 S. conducted under the direction of the court,
\V. 622 (1S!U). whenever it fairly appears that the end of
44. City of South Bend v. Turner, 150 Ind. justice require a more certain ascertainment
418. 60 X. E. 271, 54 L. R. A. 300, 83 Am. St. of important facts which can onlv be disclosed,
Rep. 200 (lyooi or fully elucidated, by such an examination,
Facts established by majority doctrine.- and such an examination may be made with-
in one of the leading cases in which this out damage to the plaintiff's life or health
question is considered and which contains an or the infliction of serious pain- (.=H that
exhaustive review of the authorities upon the the refusal of the motion, when the circum-
897 PATERNITY. 1135
It is rather a question for the presiding judge to determine, as a matter of ad-
ministration, guided by sound reasoning having in view the attainment of jus-
tice. 45 His conclusion in the matter will not ordinarily be disturbed on ap-
peal, where it appears that sound reason has been employed or, as it is some-
times expressed, unless there has been an abuse of discretion. 46
1135. Resemblance, Paternity, Etc. 47 In some jurisdictions, in bastardy
and seduction cases where it is sought to establish parentage by a resemblance
between the child and the putative father, the exhibition of a child for this
purpose has been refused, without regard to the age. 48 Ordinarily, however,
the decisions have generally been founded upon the circumstance that the child
was of very immature age and had not outgrown certain characteristics which
tend to create a resemblance between very young infants and the uncertainty
in a resemblance between any such infant and its reputed father. 49 Under
such circumstances the evidence afforded by the comparison may be somewhat
fanciful 5 " and should be sparingly resorted to. 51 Ordinarily, however, the
general rule seems to be that for the purpose of establishing a resemblance,
such resemblance being relevant, a child of the proper age may be produced in
court and submitted to the inspection of the jury. 52 As bearing upon the ques-
tion of a want of resemblance a child may also be exhibited to the jury. 53 In
Iowa the rule seems to be that a child under two years of age should not be
thus exhibited as, in any way, an aid in determining its parentage, owing to
the immaturity of the features of a child under that age. 54 In other jurisdic-
tions, and this seems to be the general rule, the youth of the child is not a
ground for exclusion, but rather goes to the weight of the evidence. 55
stances appearing in the record present a v. Danforth, 48 Iowa 43 (1878); 5 Chamb.,
reasonably clear case for the examination un- Ev.. 3600, n. 2.
der the rules stated is such an abuse of dis- 50 Clark v. Bradstreet, 80 Me. 454, 15 Atl.
cretion in the trial court as will operate to 56 (1888) ; Hanawalt v. State, supra.
reverse a judgment for the plaintiff: (6) 51. Udy v. Stewart, 10 Ont. Rep. 591
that such an order may be enforced not by (1886). Similarly, in such a case, a want of
punishment as for a contempt, but by delay- resemblance is not to be regarded as a strong
ing or dismissing the proceeding.'' City of circumstance against the alleged paternity.
South Bejid v. Turner, supra. Id.
45. Southern Bell Teleph. Co. v. Lynch. 95 52. Re Jessup, 81 Cal. 408, 21 Pac. 976
Ga. 529. 20 S. E. 500 (1S94) : City of South (1889) : State v. Smith, 54 Iowa 104, 6 X. W.
Bend v. Turner, supra: Hatfield v. St. Paul 153 (1880) : Scott v. Donovan, 153 Mass. 378,
& D. R. Co., supra: White v. Milwaukee City 26 X. E. 871 (1891) ; Gaunt v. State, 50 X.
Ry. Co., 61 \Yis. 536, 21 X. \V. 524 (1884); J. L. 490, 14 Atl. 600 11888); Finnegan v.
5 Chamb., Ev.. 3598, n. 2. Dugan, 14 Allen (Mass.) 197 (1867); Crow
46. Hatfield v. St. Paul & D. R. Co.. supra : v. Jordan, 49 Ohio St. 655, 32 X. E. 750
Owens v. Kansas City, etc., R. Co., 95 Mo. 169, (1892) ; 5 Chamb., Ev., 3600, n. 6.
8 S. W. 350 (1888). 53. Paulk v. State, 52 Ala. 427 (1875).
47. 5 Chamberlayne, Evidence. 3600. 54. State v. Harvey, 112 Iowa 416, 84 N. W.
48. Reitx. v. State. 33 Ind. 187 (1870) : Peo- 535 (1900). though it is said that an excep-
ple v. Carney, 29 Hun (X. Y.) 47 (1883) : tion may exist where the parents are of dif-
Hanawalt v. State, 64 \Yis. 84, 24 X. W. 489 ferent races.
(1885). 55. Scott v. Donovan, supra. As in other
49. Risk v. State, 19 Ind. 152 (1862) ; State cases if the evidence is not relevant it will be
;: 1136,1137 EVIDENCE BY PERCEPTION. 898
1136. Things; In Civil Actions. 5 ' 5 The jury, in order to better understand
the matters at issue, may be permitted an inspection of some article or articles,
where the evidence afforded thereby is relevant." Thus the jury may be per-
mitted an inspection of an article used by one in a profession, 58 trade, 59 or
other calling, 60 to demonstrate some point at issue between the parties. Sim-
ilarlv evidence bv perception may be employed in the case of machinery or
under some circumstances a model, shown to be a correct reproduction of a
machine, may be produced, 01 or some other object 62 may be exhibited to the
jury. In actions for personal injuries' torn clothing or other articles, worn by
the plaintiff, may, also, frequently be. received in evidence where they tend to
better explain the manner in which the injury was received, or its nature and
character. 63 Similarly the cause of the injury may in many cases be of such
a character that it, or some part thereof, may be submitted to the inspection
of the jury. 64
1137. Criminal Cases. 65 In prosecutions for criminal offenses evidence by
perception, or " real evidence," is employed, as media of proof, in the vast
majority of cases, some article, used either in the commission of the offense,
or connected with its commission, or with the person upon whom it was com-
mitted, becoming an important factor in the proof of the crime. A very ordi-
nary mode of proof, in criminal cases, is by exhibiting to the jury the instru-
ment with which the offense was committed, 66 or some article or implement
found in the accused's possession, which tends circumstantially to connect him
with the particular offense charged, although perhaps not actually used in its
rejected. State v. Danforth, supra; Clark v. 882, 38 C. C. A. 528 (1899) ; 5 Chamb., Ev.,
Bradstreet, supra; Jones v. Jones, 45 Md. 144 3601, n. 5.
(1876). 62. People v. Searcey, 121 Cal. 1, 53 Pac.
56. 5 Chamberlayne, Evidence, 3601. 359, 41 L. R. A. 157 (1898); Earl v. Sefler,
57. Thomas Fruit Co. v. Start, 107 al. 206, 46 Hun (X. Y.) 9 (1887) ; 5 Chamb., Ev.,
40 Pac 336 (1895) ; Boucher v. Robeson Mills, 3601, n. 6.
182 Mass. 500, 65 X. E. 819 (1902) ; Roberts 63. (.hiincy Gas & Electric Co. v. Batiman,
v. Port Blakely Mill Co., 30 Wash. 25, 70 40 111. App. 600 I 1902) ; State v. Baltimore &
Pac. Ill (1902); Viellesse v. Green Bay, 0. R. Co., 117 Md. 280, 83 Atl. 166 (1912) f
110 Wis 160, 85 X. W. 665 (1901 ) ; 5 Chamb., Boggs v. Martin, 108 Fed. 33, 47 C.-C. A. 175
Ev , 3W1. n. 1. ( 1901) ; 5 Chamb., Ev., 3601, n. 7.
58. McXaier v Manhattan R. Co., 4 N. Y. 64. Sykes v. Portland, 177 Mich. 290, 143
Supp. 310 ( iss'.n. X. W . 3 26 (1913).
59. Pennr-ylvatiia Coal Co. v. Kelly, 156 65. 5 Chamberlayne, Evidence, 3602-
111. 9, 40 X. E. 938 (1895); King v. New 3605.
York Cent. & H. R. Co., 72 X. Y. 607 66. People v. Sullivan, 129 Cal. 557, 62 Pac.
(1S7H); Philadelphia v. Rule, 93 Pa. 15 101 (1900); Dill v. State. 106 Ga. 683, 32
(1880); 5 Chamb.. Ev., 3601, n. 3. S. F.. 660 (1899); Seltzer v. Saxton, 71 111.
60. Stevenson v. Michigan Log Towing Co., App. 229 (1896) : Com. v. Best, 180 Mass. 492,
103 Mich. 412, 01 V. W. 536 ( 1894). 62 X. E. 748 (1902) : State v. Minot, 79 Minn.
61. McMahon v. Dubuque, 107 Iowa 62, 77 118, 81 X. W. 753 (1900); People v. Flani-
N. W. 517, 70 Am. St. Rep. 143 (1898); gan, 174 X. Y. 356, 66 N. E. 988 (1903);
Western Gas Constr. Co. v. Banner, 97 Fed. State v. Ward, 61 Vt. 153, 17 Atl. 483 (1899) ;
4 5 Chamb., Ev., 3602, n. 1.
899 CRIMINAL CASES. 1137
commission, 67 or the result of the alleged offense, as where it is claimed that an
instrument has been forged. 08 Other articles may also, frequently, be ad-
mitted in evidence for the purpose of illustrating or explaining the crime, or
some detail thereof, or otherwise establishing some relevant fact. 69
Body of Deceased or Parts Thereof. It may be, and is proper, under some
circumstances to permit an inspection by the jury of some of the bones or a
part of the body of the deceased,' as where it is important to show the position
of the parties at the time the fatal wound was inflicted,' 1 or the nature and
location of the wounds, 72 their character and effect 73 and the like. Such ex-
hibits may also be properly admitted as evidence in connection with the testi-
mony of physicians as to the cause of death, being used by them for the pur-
pose of better explaining their evidence to the jury. 74 Exhibitions of this
character are not objectionable as tending to unfairly influence the minds of
the jurors or prejudice them against the accused. 75 Care, however, should be
exercised that the submission is not made under such circumstances as to have
this effect. 70
Clothes and Oilier Personal Articles. The clothes worn by the accused at
the time of the commission of the crime may also be produced for inspection
by the jury. 7 ' In like manner clothes or articles worn by the injured 78 or
deceased 79 person have been submitted to the inspection of the jury, for the
purpose of showing the nature of the offense committed or, in case of a homi-
67. Mitchell v. State, 94 Ala. 68, 10 So. 75. State v. Weiners, supra; Turner v.
518 (185)1) ; People v. Westlake, 134 Cal. 505, State, 89 Tenn. 547. 15 S. W. 838 (1890).
66 Pac. 731 (1901); Com. v. Brown, 121 76. Patton v. State, 117 Ga. 230, 43 S. E.
Mass. 69 (1876); Puiloff v. People, 45 X. Y. 533 (1902).
213, 224 ( 1871) ; 5 Chamb., Ev., 3602. n. 2. 77. People v. McCurdy, 68 Cal. 576, 10 Pac.
68. Kimbro v. First Nat. Bank, 1 Mac- 207 (1886); Johnson v. State, 59 X. J. L.
Arthur ( D. C.) 415 (1874) ; Apthrope v. Com- 535, 39 Atl. 646 < 1896) ; People v. Gonzales,
stock, 1 Hopk. Ch. (X. Y.) 163 (1824). 35 X. Y. 49 (1866) ; 5 Chamb., Ev., 3604, n.
69. State v. Goddard, 146 Mo. 177, 48 S. 1. Xor is such evidence objectionable on
W. 82 (1898) ; Udderzook v. Com.. 76 Pa. the ground that the accused is compelled to
340 (1874) ; 5 Chamb., Ev., 3602, n. 3. furnish evidence against himself. Drake v.
70. State v. Xovak, 109 Iowa 717, 79 X. State, 75 Ga. 413 (1885).
W. 465 (1899); Sa vary v. State, 62 Xeb. 166, 78. State v. Peterson, 110 Iowa 647. 82
87 X. \V. 34 (1001) : 5 Chamb.. Ev., 3603, X. W. 329 (1900) ; State v. Duffy. 124 Mo. 1,
n. 1. 27 S. W. 358 (1894); State v. Shields, 13
71. Thrawley v. State, 153 Ind. 375, 55 S. D. 464, 83 X. W. 559 (1900).
X. E. 95 (1899) ; State v. Weiners, 66 Mo. 79. People v. Durrant. 116 Cal. 179, 48 Pac.
13 (1877). The skull of the murdered person 75 (1897): Henry v. People, 198 111 162,
may be put in evidence to show mortal 65 X. E. 120 (1902); Davidson v. State. 135
wounds in it. Territory v. Lobato. 17 X. M. Ind. 254, 34 X. E. 972 (1803); People v.
666, 134 Pac. 222, L. R. A. 1917 A 1226 Wright, 89 Mich. 70, 50 X. W. 792 (1891);
(1913). Gardiner v. People, 6 Park. Cr. (X. Y.) 155
72. Maclin v. State, 44 Ark. 115 (1884) ; <1866) : 5 Chamb., Ev., 3604, n. 4. Admis-
Com. v. Brown, 14 Gray (Mass.) 410 (I860). sibility of blood stains in murder. See note,
73. State v. Moxley, 102 Mo. 374, 14 S. W. Bender, ed., 140 X. Y. 321. The bloody cloth-
969 (1890). ing of a murdered person should not b
74. Savary v. State, supra. offered in evidence in a trial for homicide un-
1138
EVIDENCE BY PERCEPTION.
900
cide, the relative position of the parties at the time of the slaying. Articles
found upon the body of the deceased, or shown to have belonged to him, 80 may,
also, under the proper conditions of relevancy, frequently be produced for the
inspection of the jury. Similarly clothes worn by a witness of the crime have
also been thus exhibited. 81 Xor is it any objection to the admission of evidence
of this character that it cannot be made a part of the record. 82
Identification of Articles. It will be required where a weapon or the
article used in committing the offense, or connected with its commission, is
offered as belonging to the accused, 83 clothes or other personal property as being
his, 84 or some article as the property of the injured or deceased person, or
some part of a body as that of the deceased, 85 that it should be identified as
such to the satisfaction of the presiding judge.
1138. Experiments. 86 Where it is convenient and practical and the rele-
vancy of the evidence has been established, the court may permit an experiment
to be made in order to demonstrate to the jury the working of machinery, 87
the use of tools or the like, 88 or firearms, 89 whether under specified conditions
a certain result will ensue 90 and the like. 91 Similarly in the case of a physi-
cal injury it may be proper, in an action to recover damages therefor, to con-
duct an experiment in the presence of the jury, for the purpose of demonstrat-
ing the extent of the injury. 92 The question whether an experiment shall be
made is one for the court to determine; 93 much caution should be exercised, 94
less to show the nature of the injury or to
identify the person killed or the slayer as they
tend to prejudice the jury. Flege v. State, 93
Neb. 610, 142 X. W. 276, 47 I,. R. A. (N. S.)
1106 (1913).
80. Mitchell v. State, supra; Gardiner v.
People, supra.
81. Thomas v. State, 45 Tex. Cr. Ill, 74 S.
W. 36 (1903).
82. Hart v. State. 15 Tex. App. 202' (1883).
83. People v. Sullivan, supra; Com. v. Bent-
ley, 97 Mass. 551 (1867); State v. Cadotte,
17 Mont. 315, 42 Pac S57 (1805); State v.
Hill, 65 X. J. L. 626, 47 Atl. 814 (1900);
People v. Gon/alez, supra; 5 Chamb., Ev.,
3605, n. 1.
84. State v. Porter, 32 Or. 135, 45 Pac. 964
(1897).
85. State v. Moxley, 102 Mo. 374, 14 S. W.
969 (1890).
86. 5 Chamberlayne, Evidence, 3606.
87. Taylor v ('. S., 89 Fed. 954, 32 C. C. A.
449 (1898).
88. 1'eople v. Flope, 62 Cal. 291 (1882).
89. Taylor v. Com., 90 Va. 10!J, 17 S. E. 812
(1893).
90. Jumpertz v. People, 21 111. 375 (1859) ;
Eidt v. Cutter, 127 Mass. 522 (1879) ; Hat-
field v. St. Paul & D. R. Co., 33 Minn. 130, 22
N. W. 176 (1885); 5 Chamb., Ev., 3606,
n. 4.
91. Tudor Iron Works v. Weber, 31 111. App.
306 (1888); Horan v. Chicago, etc., R Co.,
89 Iowa 328, 56 X. W. 507 (1893) ; Adams v.
Thief River Falls, 84 Minn. 30, 86 X. W.
767 (1901); Clark v. Brooklyn Heights R.
Co., 78 App. Div. 478, 79 X. Y. Supp. 811
(1903); Schweinfurth v. Cleveland, etc., Ry.
Co., 60 Ohio St. 215, 54 X. E. 89 (1899) ; 5
Chamb , Ev., 3606, n. 5.
92. Adams v. Thief River Falls, supra.
Thus it was held proper to permit a doctor
to insert a pin in the plaintiff's side, where
it was alleged she had become paralyzed as a
result of the injury, the object of the ex-
periment being to show her insensibility to
pain. Osborne v. Detroit, 32 Fed. 36 (1886),
rev'd upon other grounds in 1 35 U. S. 500, 34
L. ed. 200, 10 S. Ct. 1012 HS90).
93. Campbell v. State, 55 Ala. 80 (1876) ;
Jumpertz v. People, supra.
94. Hatfield v. St. Paul & D. R. Co., supra;
People v. Woon Tuck Wo, 120 Cal. 294, 52
Pac. 833 (1898).
901 VIEW. 1139
and where it may reasonably be anticipated that an opportunity will be thereby
afforded to fabricate evidence, or that, otherwise, the jury may be confused or
misled, the court may well refuse permission to make the experiment. 95 The
court will require that the experiment be made under similar conditions and
like circumstances to those which existed in the case in issue. 90 In a criminal
proceeding where the state has been allowed to examine witnesses in respect
to experiments made by them, it is proper to allow the defense to prove similar
experiments, with different results under like circumstances. 97
1139. View. 98 It will frequently be of value as an aid to the jury, in the
determination of the issues, that they be permitted to visit a locality for the
purpose of inspecting premises. 99 The right of the presiding judge, when, in
the exercise of his administrative powers he deems it advisable to permit the
jury to inspect real property involved in the controversy under proper con-
ditions and with a due regard for the rights of the litigants, is recognized as
better tending to the discovery of the truth. 1 Sometimes personal property
which is of such a character that it cannot be produced before the tribunal, may
be viewed by the jury under similar conditions. 2 Whether the power of the
trial court in respect to permitting such action is conferred by statute, or exists
independent thereof as one of its inherent powers, early recognized at common
law and sustained by numerous decisions, it is regarded as one which the pre-
siding judge is to exercise guided by sound reason, 3 and whose action will not
generally be disturbed on appeal. He may ordinarily refuse to permit a view
where he is satisfied that there has been a substantial, change or alteration in
the subject of the inspection, 4 that by the production of photographs, 5 maps or
drawings, the premises are sufficiently and clearly portrayed, 6 or that the loss
95. Campbell v. State, supra; Com. v. Scott, 99. Mayor v. Brown, 87 Ga. 596, 13 S. E.
123 Mass. 222 (1877). 638 (1891) ; Springer v. Chicago, 135 111. 552,
96. Leonard v. Southern Pac. R. Co., 21 Or. 26 X. E. 514 (1891) ; Schweinfurth v. Cleve-
555, 28 Pac. 887, 15 L. R. A. 221 (1892); land, etc., Ry. Co., supra; 5 Chamb., Ev.,
Hardwick Sav. Bank & Trust Co. v. Drenan, 3607, n. 1.
72 Vt. 438, 48 Atl. 645 (1900); Daniels v. 1. Springer v. Chicago, supra; Tulley v.
Stock, 23 Colo. App. 529, 130 Pac. 1031 Fitchburg R. Co., 134 Mass. 499 (1883).
(1913). 2. Xutter v. Ricketts, 6 Iowa 92 (1858).
97. Smith v. State, 2 Ohio St. 512 (1853). 3. Johnson v. Winship Mach. Co., 108 Ga.
Practical tests and experiments in evidence. 554, 33 S. E. 1013 (1899); Com. v. Chance,
See note, Bender, ed., 30 X. Y. 370. Practical 174 Mass. 245, 54 X. E. 551 (189*9) ; Springer
tests in. See note, Bender's ed., 35 X. Y. 49. v. City of Chicago, supra ; People v. Budden-
Pantomine. A witness may be allowed to sieck, 103 X. Y. 487, 9-X. E. 44 (1886) ; Com.
go through a pantomime before the jury show- v. Miller, 139: Pa. 77, 21 Atl. 138 (1891);
ing his conclusions as to how a crime was 5 Chamb., Ev., 360", n. 4.
committed where he has already testified to 4. Broyles v. Prisock, 97 Ga. 643, 25 S. E.
the physical marks at the scene of the crime 389 (1895) ; Tully v. Fitchburg R. Go., supra;
on which he bases his opinion. Flowers v. 5 Chamb.. Ev.. 3607, n. 5.
State, Fla. , 68 So. 754, L. R. A. 1915 E 5. People v. Buddensieck, supra.
848 (1915). 6. Jenkins v. \Yilmington. etc., R. Co., 110
98. 5 Chamberlayne, Evidence. 3607, see X. C. 438, 15 S. E. 193 (1892).
supra, 116, Chamb., Ev., -26.
1139
EVIDENCE BY PERCEPTION.
902
of time, in taking the view, will not compensate for the advantages to be
gained. He should be careful, however, in not permitting the jury to be
guided too strongly by the results of their view so that they entirely disregard
other evidence in the case. 7 It is also essential that the view should be taken
in accordance with such provisions as may be prescribed by statute, or, in the
absence thereof, in compliance with directions by the trial court, 8 having in
view, in a criminal case, the protection of the rights of the accused. 9 Where,
by statute, a provision is made that the jury may view the premises, the action
not only of the court, but of the jury and sheriff, or other officer in whose
charge they are, should be in accordance with the law and, in no way, exceed
the power conferred. 10
7. Thus where the question involves one
of damage to land, the jury may, under some
circumstances, be permitted to view the prop-
erty to enable them to better understand the
evidence or to harmonixe or weigh conflicting
testimony, to instruct them, however, that
they may disregard or are not to be guided by
the opinions of witnesses as to value, would
be error. Hoffman v. Bloomsburg & S. R.
Co., 143 Pa. St. 503, 22 Atl. 823 (1891);
Flower v. Baltimore & P. R. Co., 132 Pa.
524, 19 Atl. 274 (1890) ; Boardman v. West-
chester Fire Ins. Co., 54 Wis. 364 (1882).
8. Eastwood v. Parker, 3 Park. Cr. R. (N.
Y.) 25 (1855).
9. State v. Bertin, 24 La. Ann. 46 (1872).
10. Thus, while they may view a manufac-
turing plant or factory, it is held to be im-
proper to direct the person in charge of such
place to put the machinery in operation for
the benefit of the jury, owing to the fact
that it may be operated under conditions dif-
fering from those at the time in question.
Hughes v. General Elec. L. & P. Co., 107 Ky.
485, 54 S. W. 723, 21 Ky. L. Rep. 1202
(1900).
A judge sitting as a trier of facts without
a jury may at common law take a view with-
out statutory authority as may also a master
or referee. Carpenter v. Carpenter ( N. H.
1917), 101 Atl. 628, L. R. A. 1917 F 974.
View outside jurisdiction. A view is a
method of procedure conducted in the absence
of the court as an aid in the ascertainment
of the truth from the physical act of in-
spection which does not require the exercise
of the judicial powers of a court at the time
for its proper performance. Hence a view
taken outside the state if it is a jurisdictional
irregularity may he waived. Carpenter v.
Carpenter' (X. H. 1917), 101 Atl. 628, L.
R. A. 1917 F 974.
CHAPTER LXI.
WITNESSES; ATTENDANCE OF.
Attendance of witnesses; power of court as to, 1140.
mode of procuring; subpoena, 1141.
subpoena duces tecum, 1142.
habeas corpus ad testificandum, 1143.
recognizance, 1144.
compulsory process; not a talcing of property; duty to testify, 1145.
payment for attendance, 1146.
punishment for contempt, 1147.
1140. Attendance of Witnesses; Power of Court as to. 1 Although prior to
the statute of Elizabeth, 2 the existence of the power of procuring the attend-
ance and testimony of witnesses had been recognized, and is, in fact, to be re-
garded as inherent, 3 yet by that act authorizing the issuance of process, calling
upon a person to testify and imposing a penalty upon him for a failure to ap-
pear in accordance therewith, an attempt was first made to relieve the situation
which existed during the early development of the common law, owing to the
doctrine of maintenance, 4 by defining a positive means for procuring the at-
tendance and testimony of witnesses. The source of the power is now gener-
ally found in the constitutions and statutes of the various jurisdictions.
Persons Exempt or Excused from Attendance. The provisions of the
United States Constitution, securing to an accused in criminal prosecutions the
right to have compulsory process for obtaining witnesses in his behalf, is not
regarded as authorizing the issuance for this purpose of process to ambas-
sadors, whose personal inviolability is recognized by the law of nations, or to
consuls who are exempted by express treaty. 5 At common law, while few
exemptions were allowed, yet, where it was apparent that it would inflict a
hardship upon a person to require him to appear, the court would not, in all
cases, exercise its power in this respect. Thus, should it be shown that the
witness was sick or that a member of his family was seriously ill, 6 or that he
was so enfeebled by reason of age or other cause that it would imperil his life
1. 5 Chamberlayne, Evidence, 3609, X. Y. Supp. 806 (1899); Jn re Dillon, 7
3610. Sawy. (U. S. D. C.) 561, 7 Fed. Cas. No.
2. Stat. 5, Eliz. c. 9. 3,914 (1854).
3. Crosby v. Potts, 8 Ga. App. 463, 69 S. E. 6. Cutler v. State, 42 Ind. 244 (1873) ;
582 (1910). State v. Hatfield, 72 Mo. 518 (1880); Foster
4. Thayer, Pre. Treat. Ev., pp. 122, et v. McDonald, 12 Heisk. (Tenn.) 619 (1874);
seq.; 5 Chamb., Ev., 3609. 5 Chamb., Ev., 3610, n. 2.
5. Baiz v. Malo, 27 Misc. (X. Y. 685, 58
903
WITNESSES; ATTENDANCE OF. 904
to make the trip, 7 or that it would inflict a hardship upon him in his business
relations or affairs^ the presiding judge would, where he was satisfied that
the purposes of justice would be served equally as well, permit of the taking
of his testimony by deposition. The mere fact, however, that a person is ill
or has received some slight injury or wound, <J or the slight indisposition of
the wife or other member of the family of the witness, 10 will not be regarded
as sufficient to relieve him from his duty to attend. In some states an excep-
tion has been made by statute in the case of females, to the extent that the court
may allow of the taking of their testimony by deposition, 11 but not generally
exempting them from attendance where it is necessary that they should ap-
pear. 12 Other exceptions have also from time to time been made and in some
instances abolished by statute, resort to which must be had, in each jurisdiction,
to determine in what cases they exist.
1141. Mode of Procuring; Subpoena. 13 The power of the court to require
a person to appear as a witness is ordinarily exercised in one of four ways,
namely, by (1) subpoena, (2) subpoena duces tecum, (3) habeas corpus ad testi-
ficandum, and (4) recognizance. 14 The usual mode is by means of a subpoena,
which is a judicial writ served upon him and commanding him to be present in
court at a time and place specified, and to testify to what he knows in the cause
which the writ refers to. 15 The fact that the day specified is a legal holiday is
not material, provided it is a day upon which the court may transact judicial
business. 16
Attachment. The court may enforce the attendance of a witness by attach-
ment, 17 upon its being shown that he has failed to appear, after due and proper
service of a subpoena upon him and the performance of all acts such as pav-
ment or tender of fees and the like which are essential to render the summons
effective. 18 A party is entitled to it as a matter of right under certain stat-
utes. 19 Ordinarily, however, the granting of it is a matter in the discretion
of the court. It may be refused where it is shown that the witness is dying, 20
7. Jackson v. Perkins, 2 Wend. (N. Y.) 308 16. Chambers v. Oehler, 107 Iowa 155. 77
( 1829 > ' * VV. 853 ( 1899) . It is essential that there
People v. Davis, 15 Wend. (X. Y.) 602 should be some proceeding pending in the
court where the presence of the witness ia
9. Eller v. Roberts, 3 Ired. L. (N. C.) 11 desired. Id.
17. Com. v. Carter, 11 Pick. (Mass.) 277
10. Foster v. McDonald, supra. (1853); State v. Huff. 161 Mo 459 61 S W
11. Ex parte Branch, 105 Ala. 231, 16 So. 900, 1104 (1901); People v. Vermilyea. 7
926 ( 1H94) : Western & A. R Co. v. Denmead, Cow. (X. Y.) 108 (1827) ; Bowen v Thorn-
83 C,a. 3f>l, 9 S E. 083 (1S89): 5 Chamb., ton, 9 Wkly. Xotes Cas. (Pa ) 575 (1881)-
Ev, 3610. n. 7 5 (-j iamh p v Sf)13 n L
12. Augusta & S. H. Co. v. Randall, 85 C,a 18. State v. Stewart 117 La 476 41 So
297. 11 S. E. 700 (isnn, 798 (1906) ; State v. Trumbull, 4 X J L 139
13.5 Chamhorlavne, Evidence, 3611- ( 1818) : Anonymous. 2 Ohio Dec. 407 < 1860) ;
5 Chamb.. Ev., 3613. n '
14. 5 Chamb, Ev, 3611 19. Oreen v . ' state> 17 p, ft 6g9 (1880)
Cairns v. Sampsell, 158 111. App. 415 20. State v. McCarthy, 43 La. Ann. 541, 9
( 191 )- So. 493 (1891).
905 SUBPCENA DTJCES TECUM. 1142
or is prevented from attending by reason of sickness, 21 or that his testimony
would not have been relevant or material.
Service of Subpoena. In the absence of statutory provision, it is usually
required that the service shall be a personal one, and that it should be made a
reasonable time before the date the witness is directed to appear, 22
1142. Subpoena Duces Tecum. 23 In case there are books, documents, or
other writings in the possession of an adverse or third party, or under his con-
trol, which it is desired to have him produce, a clause describing them with
such reasonable certainty as to inform him of what is required and directing
him to produce them is inserted in the writ, which is then known as a subpoena
duces tecum. This prerogative of the courts is an ancient one 24 and is essen-
tial to the existence of legal tribunals, as an aid to them in the discovery of
truth and the attainment of justice. 25 The ad testificandum clause is not
essential in a subpoena duces tecum, and, where it contains such a clause, it is
not necessary that such person be sworn as a witness. 26 Whether the process
of the court has been obeyed, in respect to a subpoena duces tecum, is a matter
concerning which the court may require to be informed as a preliminary to the
trial. 27
Requirement as to Certainty of Description of Writings. It is essential
that a subpoena duces tecum should describe the writings, which it is desired
to have produced, with reasonable certainty and that it should not be in the
nature of an omnibus subpoena. 28 A party will not be allowed the use of such'
a process for the purpose, as it is frequently expressed, of conducting a mere
" fishing expedition." 29
Duty of Witness. In case of such a subpoena it is, as a general rule, the
duty of the witness to comply with the mandate of the court and submit the
writings for the inspection of the presiding judge, who will then decide the
question of privilege and relevancy, although it may happen that a failure to
produce them may, in some cases, be excused. 30 His failure to appear for the
21. Cutler v. State, supra; State v. Me- 26. Wilson v. U. S., 221 U. S. 361, 31 S. Ct.
Carthy, supra; State v. Hatfield, 72 Mo. 538, 55 L. ed. 771 (1911).
518 (1880) ; 5 Chamb., Ev., 3613, n. 5. 27. Shull v. Boyd, supra.
22. Hammond v. Stewart, 1 Strange 510 28. Ex parte Jaynes, 70 Cal. 638, 12 Pac.
(1722): 5 Chamb., Ev., 3614. 117 (1886); Ex parte Calhoun, 87 Ga. 359,
23. 5 Chamberlayne, Evidence, 3615- 13 S. E. 694 (1891); State v. Davis, 117 Mo.
3620. 614, 23 S. W. 750 (1893) : Hoppe v. Ostran-
24. Shull v. Boyd, 251 Mo. 452. 47-3, 158 der & Co., 183 Fed. 786 (1910); 5 Chamb.,
S. W. 313 (1913): Summers v. Moseley, 2 Ev., 3616, n. 1.
Cr & M. 477 (1834). The United States 29. American Car & Foundry Co. v. Alex-
Courts have power, under Judiciary Act 1789, andria Water Co.. 221 Pa. 529, 70 Atl. 867,
14 and U. S. Rev. St. 716, to issue sub- 128 Am. St. Rep. 749 (1908).
poena duces tecum. American Lithographic 30. Chaplain v. Briscoe, 5 Sm. & M. (Miss.)
Co. v. Werckmeister, 221 U. S. 603, 31 S. Ct. 198 (1845): In re Hirsch. 74 Fed. 928
676, 55 L. ed. 873 (1911). (1890) ; 5 Chamb., Ev., 3617, n. 1.
25. Amey v. Long, 9 East 473 (1808).
1143 WITNESSES; ATTENDANCE OF. 906
purpose of testifying as required by such a subpoena will not be justified by
the fact that it may contain directions to produce books and papers in viola-
tion of his rights. 31 In case such a subprena is directed to a corporation, an
officer thereof in whose c'rjtody the books or other documents called for may
be, should obey the suraLuons. 32
As an Unreasonable Search and Seizure. A subpoena duces tecum, which
is suitably specific and properly limited in its scope and calls for the produc-
tion of documents, which, as against their lawful owner to whom the writ is
directed, the party procuring its issuance is entitled to have produced, is not
violative of the Fourth Amendment to the Constitution of the United States,
as to unreasonable search and seizure. 33 On the other hand, however, this
provisions and others of a like nature in state constitutions have, for their
object, the protection of the individual in his rights to his chattels, personal
papers, documents and writings, and where a subpoena duces tecum is of such
a broad and sweeping character as to come within the meaning of the phrase,
"' unreasonable search and seizure," the aid of the court by such process will
be refused. 34
Application For. On application to the court for a subpoena duces tecum,
it is generally regarded as essential that the petition should set forth facts
sufficient to inform the court as to what writings are desired and to show in
what respect they are relevant or material. 35 It must appear that the writings
.desired are relevant and material ; 36 a prima facie case, however, sufficient
to create a reasonable belief that the evidence furnished by the documents is
relevant or material is all that will ordinarily be required. 37
Statutes. Statutory or code provisions, in respect to the issuance of a sub-
poena duces tecum, are frequently controlling and should be followed. 38
1143. Habeas Corpus Ad Testificandum.^ Where the person desired as a
witness is detained, under process of law, in a prison or other institution of
a similar nature, in consequence of which he would be unable to appear in
31. Leber v. U. S., 170 Fed. 881, 96 C. C. A. relevant to the issue in that cause," such
an allegation being a mere conclusion of law;
32. Wilson v. United States, supra. the facts should be set out leaving it for the
33. Wilson v. United States, supra. court to determine whether the relief sought
34. Kullman, Salz & Co. v. Superior Court, should be granted. United States v. Terminal
15 Cal. App. 276, 114 Pac. 589 (Iflll); Ex R. Ass'n, 154 Fed. <>68 (1007)
parte Brown, 72 Mo. 83, 37 Am. Rep. 42f, 36. U. S. v. Terminal R. Ass'n, supra;
30) : Hale i . Henkel. 201 U. S. 43, 26 Dancel v. Goodyear Shoe Mfg. Co., 128 Fed.
. 370, 50 L. ed 652; 5 Chamb., Ev., 753 (1904); Bentley v. State, 107 111. App.
245 (1903); 5 Chamb., Ev., 3619 n 3
35. State ex rel. Oxark Cooperage & Lum- 37. U. S. v. Terminal R. Ass'n supra.
ber Co. v Wurdcman, 176 Mo. App. 540, 158 38. Gaynor v. New York Breweries Co., 154
United States v. ITunter, App. Div. 881, .138 N. Y Supp 899 (1912)-
15 Fed. 712 (18S2), in the case of telegrams. Beebe & Co. v. Equitable Mut L & E Assn '
is not regarded as sufficient for the mover 76 Iowa 129, 40 N. W. 122; 5 Chamb., Ev.,
to allege, in his petition for such a subpoena, 3620
" that the documents desired are material and ' 39. 5 Chamberlayne, Evidence, 3621.
907 EECOGNIZANCE. 1144, 1145
court, his presence may be obtained by a writ of habeas corpus ad testificandum,
the granting of which was a matter of discretion at common law, 40 the power
in this respect, being inherent. 41 The granting of an order for the attendance
of such a person in court rests in the sound discretion'of the presiding judge. 42
If he should be satisfied that the purposes of justice will be equally as well
accomplished, and the statute permits of it, he may refuse the order and direct
the taking of the deposition of the imprisoned person. 43
1144. Recognizance. 44 Another mode by which the attendance of a wit-
ness, in behalf of the state in a criminal proceeding may be provided for is by
a recognizance for his appearance and, in case of his refusal or inability to
comply with the order of the court in this respect, his commitment in some
place of detention until the trial.' 45 A bond so given should be definite as to
the time the witness is to appear and if not sufficient in this respect is a nul-
lity, as where the witness is required to appear at an impossible date. 46 The
power to bind witnesses by recognizance to appear and give evidence in crim-
inal cases is said to be an extraordinary one, which cannot be exercised in the
absence of statutory authority. 47
1145. Compulsory Process; Not a Taking of Property; Duty to Testify. 48
The exercise by the court of its power to compel a witness to attend trial and
to testify is not a taking of property in violation of the constitutional provi-
sion. 49 Such attendance, accompanied by the giving of testimony, is rather
regarded as a duty which the individual owes to society as a member thereof. 50
In Criminal Cases. The same rule as prevails in civil cases, is also held
to control in the case of misdemeanors. 51 In criminal cases, involving the com-
mission of felonies, witnesses in behalf of the government may be summoned
40. Van Vlissingen v. Van Vlissingen, 173 121 (1895); In re Petrie, 1 Kan. App. 184,
111. App. 124 (ini2): Hayden v. Com., 140 40 Pao. 118 (1895); Lutshaw's Case, 1 Ohio
Ky. 634. 131 S. W. 521 (1910); Ex parte Dec. 96 (1848); Crosby v. Potts, 8 Ga. App.
Marmaduke. 91 Mo. 228, 4 S. W. 91 (1886) ; 463, 69 S. E. 582 (1910); 5 Chamb., Ev.,
People v. Sebring, 14 Misc. (X. Y.) 31, 35 3622, n. 1.
N. Y. Supp. 237 (1895); 5 Chamb., Ev., 46. Mac-key v. State, 38 Tex. Cr. 24, 40 S.
3621, n. 1. W. 982 (1897) (a date prior to giving of the
41. Jackson v. Mobley. 157 Ala. 408, 47 So. bond).
590 (1908) ; People v. Sebring. supra. 47. Little v. Territory, 28 Okl. 467, 114 Pac.
42. Roberts v. State, 94 Ga. 66, 21 S. E. 699 (1911).
132 (1894); Ex parte Marmaduke, supra; In 48. 5 Chamberlayne, Evidence, 3623-
re Thaw, 166 Fed. 71, 91 C. C. A. 657 (1908) ; 3625.
5 Chamb., Ev.. 3621. n. 3. 49. West v. State, 1 Wis. 209, 233 (1853) ;
43. People v. Putnam, 129 Cal. 258, 61 Pac. 1 Starkie's Ev., 85 ; 5 Chamb., Ev., 3623, n.
961 (1900); Buckley v. Von Claussen, 53 1.
X. Y. Law J. (June 9, 1915), Xo. 59. Com- 50. Bennett v. Waller, 23 111. 97, 179
pare Hancock v. Parker, 100 Ky. 143, 37 S. (1859); Israel v. State, 8 Ind. 467 (1857);
W. 594, 18 Ky. L. Rep. 622 (1896). Baird v. Cochran, 4 Serg. & R. (Pa.) 397
44. 5 Chamberlayne, Evidence, 3622. (1818) ; 5 Chamb., Ev., 3623, n. 2.
45. Ex parte Shaw, 61 Cal. 58 (1882); 51. Ex parte Chamberlain, 4 Cow. (N. Y.)
Clayborn v. Tompkins, 141 Ind. 19, 49 N. E. 49 (1825).
1145 WITNESSES; ATTENDANCE OF. 90S
without a tender of fees, upon the principle that it is the duty which even-
citizen owes to the public to appear in such cases and give his testimony even
without any compensation. 52 The accused, however, could not under the
early English common law demand, as a matter of right, compulsory process
for his witnesses. 03 This situation, however, is generally provided for and
remedied at the present time by constitutional provision and legislative enact-
ments regulatory of the exercise of the right. 54 Good faith on the part of a
defendant is essential and it is said that the materiality and importance of the
evidence should be established to the satisfaction of the presiding judge before
this process will be issued. 55 The mere service of a subpoena is not regarded
as satisfying the provision of the constitution, the actual production of the
witness in court being required, 56 unless this is impossible, as where the wit-
nesses desired are beyond the reach of process. 57 In fact it is said that such
a provision does not guarantee any more than ordinary diligence, on the part
of the officers who may be seeking to serve a desired witness. 58 The provision
of the United States Constitution together with the amendments thereto, 59 are
not regarded as affecting or applying to prosecutions or proceedings in the
courts of the states or to laws enacted by the legislatures of the states, but only
to prosecutions and proceedings in the courts of the United States and laws
enacted by Congress.' 30
Granting of Matter of Discretion. Ordinarily, under such provisions, the
accused is required to show his inability to pay the expense of procuring wit-
nesses ; to state the names of those he desires and what he intends to prove by
each. The purpose of this is to place it within the power of the court to de-
termine, in the exercise of sound reason, the good faith of the accused in the
matter and the nature of the proposed testimony so that, if the presiding judge
deems it proper, he may grant the application. 61 If he is not so satisfied, he
may refuse to grant the order, as where it appears from the application that
81 Tenn. 326 (1884); State v. Grimes, 4
ittman v. State, 51 Fla. 94, 41 So. Wash. 445, 35 Pac. 361 (1893)
385 I 1906) ; Crosby v. Potts, 8 Ga. App. 463, 57. State v. Yetzer, 97 Iowa 423 66 N W
582 (1!)1( - 737 (1896) ; State v. Richard. 127 La. 413, '3
54. Bush v. State, 168 Ala. 77, 53 So. 266 So. 669 (1910).
(1910); People v. Bossert, 14 Cal. App. Ill, 58. Smith v/State, 118 Ga 61 44 S E
Pac. 15 (1910); Moore v. State, 59 Fla. 817 (1903)
23, 52 So. 971 (1910) ; State v. Robertson, 59. U. S.' Const., 2, Art 3 and amend-
133 La. 806, 6.3 So. 863 ( 1913) : State v. Berk- ments five and six
1. W. 24 (1887) ; State v. 60. Spurgeon v. Rhodes, 167 Ind. 1, 78 N
Archer. o4 N. H. 465 (1874); Romine v. E. 228 (1906); Anderson v State 8 Okla
State, 10 Okl. Cr. 350. 136 Pac. 775 (1913): Cr. 90, 126 Pac. 840 Tl912) Presser v'
State v. Sheehan, 28 R. I. 160, 66 Atl. 66 Il,i no i 8) 116 U. S. 252,6 S Ct 580 " 9 I el
(1907, ; 5 Chamb., Ev., 3624, n. 4. 61 , (1885) ; 5 Ctamb . Ev^M n 10
55. Peop.e v. VYnlard, 92 Cal. 482, 28 Pac.' 61. Jenkins v . State . 31 ' * ^
680 (1893) ; State v. Nix, 111 La. 812, 35 So.
56. State v. Berkley, supra; State v. Baker, 917 (1904); State v. Grimes, supra; 5
Chamb., Ev., 3625, n. 1.
900 FEES. 1146
the testimony, which the witness would be expected to give, would be inadmis-
sible. 152 Generally, however, if the attendance of the witness can be procured
and his testimony is material, the court should grant a motion for compulsory
process ; a substitution therefor, as by permitting his testimony upon a former
trial to be read, will not satisfy the requirement; 63 nor will the fact that an
admission is made by the prosecution be allowed, 64 a statute permitting the
latter substitute being held unconstitutional. 65 If it should appear, however,
that the attendance of the witness can not be procured, owing to compulsory
process being ineffectual and exhausted, an admission may be received. 66
Where by statute the right to summon witnesses at the expense of the state is
left to the discretion of the trial court, its action is not reviewable on appeal. 67
1146. Payment for Attendance. 08 By the Statute of Elizabeth, 69 it was
made necessary, in order to secure the attendance of a witness in a civil cause,
to pay or tender to him " his reasonable charges," at the time of the service of
the subpoana, which charges included a. reasonable sum for travel to and from
the trial and for his necessary stay at the place of trial and, if the party desir-
ing his testimony did not at least tender him some reasonable amount therefor,
he could not be compelled to testify, nor would the court proceed against him
in any way for his refusal to appear. 70 Much the same situation now exists
under modern statutes, 71 a witness not being obliged to obey such a summons,
unless he has been paid or tendered his traveling expenses to and from the trial,
with some allowances for the expenses of his necessary stay. The amount
which he is paid, both for his traveling and his attendance at the trial, is
now, as a general rule, fixed by legislative enactment. 72
Experts; Services Performed By. In those cases where an expert is not
merely called upon to testify, to render the same duty to society which any
other member thereof is required to do, but is asked to perform some special
act, aside and apart from that obligation, 73 as for instance a physician to make
a post-mortem examination, 74 a chemical analysis, 75 or to examine the facts
62. State v. Berger (Iowa 1902), 90 N. W. (1908) ; Atwood v. Scott, 99 Mass. 177. 96
621 Am. Dec. 728 (1868) ; Larimore v. Bobb, 114
63. People v. Bossert, supra. Mo. 446, 21 S. \V. 922 (1893) : In re Depue,
64. People v. Fong Chung, 5 Cal. App 591, 185 N. Y. 60, 77 N. E 798 (1906) ; Wohl-
91 Pac. '106 (1910); State v. Salge, 2 Nev. forth v. Kuppler. 77 Wash. 339. 137 Pac.
321 (1866) : State v. Richard, supra. 477 (1914) ; 5 Chamb., Ev.. 3626. n. 3. See
65. State v. Berkley, supra. also, the statutes of the various states.
66. Kelly v. State. 160 Ala. 48, 49 So. 535 72. Engel v. Ehret. 21 Cal App. 112, 130
(1909): State v Wilcox. 21 S. D. 532, 114 Pac. 1197 (1913); Anderson v. Board of
N. W. 687 (1907/- County Com'rs, 91 Kan. 362, 137 Pac. 799
67. Goldsby v. U. S., 160 U. S. 70, 16 S. (1914*).
Ct. 216, 40 L. ed. 343 (1895K 73. See Barrus v. Phaneuf. 166 Mass. 123,
68. 5 Chamberlayne, Evidence, 3626- 44 X. E. 141, 32 L. R. A. 619 (1896); Lyon
3630. v. Wilkes. 1 Cow. (X. Y.) 591 (1823).
69. Stat. 5 Eliz. c. 9. 74. Board of County Com'rs v. Lee. 3 Colo.
70. Xewton v. Harland, 9 Dowl. 16 (1840). App. 177, 32 Pac. 841 (1893): County of
71. People v. Healey, 139 111. App. 363 Northampton v. Innes, 26 Pa. 156 (1846);
1146 WITNESSES; ATTENDANCE OF. 910
of the case or attend court during an entire trial for the purpose of hearing all
of the testimony so as to qualify him to pass an opinion, 70 or an expert account-
ant to make an examination of books, 77 no good reason can be suggested why
he should either be compelled to do so or be asked to without compensation for
the services rendered. 78
Opinions of; Extra Compensation. In another class of cases where one
who is an expert is called upon to testify, not merely to facts within his knowl-
edge, but also to express an opinion based upon facts presented to him, there
is some authority in favor of the view that he should not be compelled to do so
without extra compensation, 79 founded upon the theory that when a witness
testifies as an expert, he is then rendering a special service, one peculiarly pro-
fessional, which places him in a position entirely different and distinct from
that occupied by him or any other witness when testifying to facts. 80 The
weight of authority, however, favors the view that courts possess the power to
summon experts to testify without any increase over the fees paid to other wit-
nesses. 81 The decisions are founded upon the theory of the duty which each
individual owes to society, even though the performance of that duty may, in
some cases, result in a pecuniary loss to him. It is true that, financially, his
loss may be greater in amount than that of an ordinary witness. On the other
hand, however, it may not be proportionately greater. The law does not at-
tempt to discriminate in the case of other witnesses for the purpose of re-
munerating them for the value of their time when serving the state as wit-
nesses, nor when citizens are called to serve as jurors. Why should an excep-
tion be made in the case of an expert and others whose loss may be more serious,
though smaller in amount, be ignored ? The majority doctrine has wisely
refused to make any exception but requires all to testify, upon the same basis
of compensation. 82
Statutes. In some jurisdictions statutes have been enacted having in view
Summers v. State, 5 Tex. App. 365, 32 Am. learning are in the nature of property which
Rep. 573 ( 187!) ; 5 Chamb., Ev., 3627, n 1. ought not be extorted from him in the'form of
75. People v. Conte, 17 Cal. App. 771, 122 an opinion without just compensation there-
Pac. 450 (1912). for. Buckman v. State, supra.
76. Flinn v. Prairie County, 60 Ark. 204, 81. Flinn v. Prairie County, supra; Peo-
29 S. W. 459 (1S95); Schofield v. Little, '2 pie v. Conte, supra; Board of'County Com'rs
Ga. App. 286, 58 S. E. 666 (1907) ; People v. v. Lee, supra; Dixon v State, 12 Ga App. 17,
Montgomery, 13 Abb. Pr. N. S. (N. Y.) 207, 76 S. E 794 (1912) ; North Chicago St. R!
240 ( 1895 > Co. v. Zeiger, 182 111. 9, 54 N. E. 1006 ( 1899) ;
77. Harrison v City of New Orleans, 40 La. Barrus v Phaneuf. supra; Burnett v. Free-
Ann 509, 4 So. 133 ( 1888). man, 134 Mo. App. 709. 115 S. W. 488 (1909) ;
78. Philler v. Waukesha County, 139 Wis. Lyon v. Wilkes, supra; State v. Darby, 9
211, 120 N. W. 829 (1909). Ohio Dec. (Reprint) 725 (1886): Com.' v.
79. Buckman v State. 59 Ind. 1 (1877); Higgins, 5 Kulp. (Pa.) 269 (1889); Philler
Re Roelker, 1 Sprague (U. S.) 276 (1855); v. Waukesha County, supra; 5 Chamb., Ev.,
6 Chamb., Ev., 3628, n 1. 3629, n. 1.
80. Thus in the case of a physician it is 82. Main v. Sherman County, 74 Neb. 155,
said that his professional knowledge and 103 N. W. 1038 (1904).
911 CONTEMPT. 1147
the payment of an extra compensation to an expert, testifying as such. Such
a statute has to be construed with reference to the witness actually testifying
|
as an expert and not to include the case of one who though he is an expert is
testifying to physical facts falling within his observation. 83 Under a statute
providing that " witnesses called to testify in court only to an opinion founded
on special study or experience in any branch of science, or to make scientific
or professional examinations and to state the result thereof, shall receive addi-
tional compensation to be fixed by the court with reference to the value of time
employed and the degree of learning required," it is sufficient to entitle them
to such compensation that they have been called to testify only to an opinion,
or to the result of scientific or professional examination; it is not necessary
that they should be appointed by the courts as experts or summoned as such. 84
1147. Punishment for Contempt. 85 A judicial tribunal has power, in case
a person, who has been lawfully subpoenaed as a witness, fails to appear, 86 or,
in case he appears in response to the summons, refuses to answer questions as
to matters concerning which he may be lawfully interrogated, 87 or refuses to
obey a subpoena duces tecitm, 88 to punish him as for a contempt of court. The
subpoena is a direct order of court commanding the person to do as directed
therein and, for his refusal to comply therewith, the court has the power, 89
which at common law was inherent is courts of record, 90 to punish him for con-
tempt ; otherwise, it would be powerless to enforce any obedience to its process.
83. Le Mere v. McHale, 30 Minn. 410, 15 Y.) 150 (1861) ; State v. Keyes. 75 Wis. 288,
N. W. 682 (1883) ; 5 Chamb., Ev., 3630, n. 44 N. W. 13 (1889) ; 5 Chamb., Ev., 3631,
1. n. 2.
84. Suthon v. Laws, 132 La. 207, 61 So. 204 88. Foster v. Wait, 151 App. Div. 933.
(1913). 136 N. Y. Supp. 209 (1912).
85. 5 Chamberlayne, Evidence, 3631. 89. Baldwin v. State, 126 Ind. 24, 25 N. E.
86. Brockman v. Aulger, 12 111. 277 (1850); 820 (1890); Tredway v. Van Wagenen, 91
Wilson v. State, 57 Ind. 71 (1877) ; State v. Iowa 556, 60 X. W. 130 (.1894): Woods v.
Seaton, 61 Iowa 563, 16 N. W. 736 (1883); De Figaniere, 1 Rob. (N Y.) 607. 16 Abb.
People v. Brown, 46 Hun (N. Y.) 320 (1887); Pr. 1 (1863); 5 Chamb.. Ev., 3631, n. 4
State v. Nixon, Wright (Ohio) 763 (1834); 90. Matter of Kerrigan, 32 X. J L. 344
5 Chamb., Ev., 3631, n. 1. (1869) ; Williamson's Case, 26 Pa. 9, 67 Am
87. Rogers v. Superior Court, 145 Cal 88, Dec. 374 (1855). There must have been au-
78 Pac. 344 (1904) ; Goodman v. State. 90 thority to issue the summons and one of the
111. App. 533 (1900) : Ex parte Creasy, 243 requisites to that authority is the pendency
Mo. 679, 148 S. W. 914. 41 L. R. A. i X. S.) of an action in court. Chambers v. Oehler,
478 (1912); People v. Kelly, 12 Abb. Pr. (N. K~ Iowa 155, 77 N. W. 853 (1899).
CHAPTER LXII.
INCOMPETENCY OF WITNESSES; MENTAL INCOMPETENCE
Incompetence of witnesses; nature of an oath, 1148.
immaturity of children 'n minds, 1149.
insanity, idiocy, etc., 1150.
intoxication, 1151.
victims of drug habits, 1152.
1148. Incompetency of Witnesses; Nature of an Oath. 1 It is the general
rule that a person of intelligence may, provided he has knowledge respecting
some relevant fact, 2 testify in regard thereto. Personal knowledge is essen-
tial. 3 From the earliest times the solemnity and binding force of an oath
have been recognized. " The forms of an oath have been always different in
all countries according to the different laws, religion and constitution of those
countries. But still the substance is the same, which is that God in all of
them is called upon as a witness to the truth of what we say." 4 " No case
can be found which has allowed a witness to be sworn upon a belief falling
short of a belief in the existence of God." 5
Mental Incapacity; Deaf and Dumb Persons. It is a general rule' that a
person must, in order to be qualified as a witness, possess the necessary under-
standing to retain in his memory a clear recollection of the events or occur-
rences witnessed by him so as to be able to narrate them intelligently, and
that he must be able to discern between right and wrong and to appreciate the
obligation imposed upon him to tell the truth respecting the matters concern-
ing which he has knowledge and is called upon to testify. 6 These are require-
ments which will be insisted upon in all cases. If it appears that a person,
offered as a witness, is so wanting in either essential as to render his testimony
of no evidentiary value it will be rejected. 7 Deaf and dumb persons were, at
1. 5 Chamberlayne, Evidence, 3632- 46, 18 All. 1059 (1890): 5 Chamb., Ev.,
3636 3632, n. 1.
2. Hodges v. Kyle, 9 Ala. App. 449, 63 So 3. Gillespie v. Ashford, 125 Iowa 729, 101
761 (1914); Davitte v. Southern Ry Co., N. W. 649 (1899) : Tanner v. Pape, 106 Mich
108 Ga 665, 34 S. E. 327 (1899) ; Purcell v. 155, 63 N. W. 993 (1805).
Henry, 67 111. App. 256 (1896): Missouri 4. Omichund v. Barker, Willes 538 (1744);
Pac Ry. Co. v Stevens. 35 Kan. 662, 12 Pac. 5 Chamb., Ev., 3633.
25 (1886); In re Kuhman's Estate, 94 Neb. 5. Arnold v. Estate of Arnold, 13 Vt 362
783, 144 N. W. 778 (1914); People v Gill- (1841).
man, 161 App. Div. 920, 145 N. Y Supp. 775 6. Hartford v. Palmer, 16 Johns. (N. Y.)
(1914); Cleveland, etc., R. Co. v. Marsh, 63 143 (1819).
Ohio St. 236, 58 N. E. 821, 52 L. R. A. 142 7. Infra, other sections in this chapter; 5
(1900); Schubkagel v. Dierstein, 131 Pa. Chamb., Ev., 3634.
912
913 CnrLDEEN. 1149
one time, excluded as a class, because of the fact that persons so afflicted were re-
garded, in the law. as idiots and, therefore, incompetent to testify. The fallacy
of this idea has, gradually, become a relic of the past, especially in view of the
means and facilities, which have been afforded by modern learning, s of edu-
cating them, until, at the present time, they are received as witnesses. If
such a person possesses sufficient intelligence to understand the obligation of an
oath and to convey, correctly, such knowledge as he may possess to the court he
will be received. 9 The same presumption in favor of sanity applies to deaf
and dumb persons, as applies in the case of others. 10
Means of Conveying Information io Court. If such a witness can write,
that mode of answering questions is to be preferred to that of signs. 11 If a
witness is able to communicate his ideas better by means of signs than by writ-
ing, the use of the former mode in answering questions may be permitted. 12
So the use of an interpreter has been permitted, the same as where a witness is
unable to speak the English language. 13 Though a dumb person may not be
educated in the use of signs and can only express assent and dissent by a nod
or shake of the head, thus rendering cross-examination difficult, 'he may never-
theless be permitted to testify, but it is said that his disability may be con-
sidered by the jury, as bearing upon the weight of his testimony. 14 That dif-
ficulty attends the examination of a deaf-mute is no reason why his testimony
should be excluded. 15
1149. Immaturity of Children's Minds. 16 Children are, in many cases,
excluded as witnesses, owing to the immaturity of their mental faculties.
Formerly the rule was, to a great extent, an arbitrary one, children under the
age of nine being regarded as incompetent and, between that age and four-
teen, their admission being a matter for the court to determine. 17 With the
progress of time, however, and the improved educational facilities, resulting
in the cultivation and development of the intellect of children at an early age, a
more reasonable rule has been adopted, 18 and age is not the test, but the de-
gree of intelligence and understanding of the obligation of an oath. 19
General Rule. Xo precise age can be stated as controlling the question of
the admission of the testimony of children. It must, in each instance be de-
8. State v Edwards. 79 X. C 048 (1S78). 14. Quinn v Halhert, 55 Vt. 224 (1882).
9. State v. Butler, 157 Iowa 103, 138 N \V 15. Ritchey v. People, 23 Colo. 314, 47 Pac.
383 (1912): Kirk v. State. 35 Tex. Cr. 224. 272 ilS96).
37 S. \A'. 440 (1 *<).->> : 5 Chamb . Ev.. 3635. 16. 5 Chamberlayne, Evidnece, 3637-
10. Harrod v. Harrod. 1 K. & J 4 ilS54). 3641.
11. Morrison v. Lennard, 3 C. & P 127 17. State v. Whittier, 21 Me. (8 Shep ) 341,
(1827). 38 Am. Dec. 272 (1842).
12. State v. De Wolf, 8 Conn 93 (1830) -. 18. McGuff v. State, 88 Ala. 147, 7 So. 35
Snyder v Nations, 5 Blackf. (Ind.) 295 (1889): State v. Edwards, 79 N. C 648
(1840) : 5 Chamb., Ev.. 3636. n 2. (1878)-.
13. State v Howard, 118 Mo 127, 24 S W. 19. McGuire v. People. 44 Mich. 286, 6 N.
41 (1893) ; State v. Weldon, 39 S. C. 318, 17 W. 669. 38 Am. Rep. 265 (1880) ; 5 Chamb.,
S. E. 388, 24 L. R. A. 126 (1892). Ev., 3637.
1149 INCOMPETEXCY OF WITNESSES.
termined according to the circumstances of the case, 20 taking into considera-
tion the intelligence of the child and his ability to discern between right and
wrong, to appreciate the difference between truth and falsehood. 21 If a child's
mind does not appear to be so sufficiently matured that he can distinguish right
from wrong, or he does not understand the obligation of an oath, he should not
be permitted to testify.- 2 On the other hand, though he may be of tender
years, yet his education and moral and religious training may be such that he
will entirely satisfy the requirements, in the foregoing respects. In such a
case the court will receive his testimony. 23 In practice, children are often
allowed to testify whose legal capacity to do so is very liberally construed. 24
A Question for the Presiding Judge. The presiding judge must be satis-
fied that a child, offered as a witness, feels some obligation imposed upon him
to tell the truth, concerning the matter in respect to which the inquiries relate
and, for this purpose, he may examine the child. 2 " This is a matter which
he must determine in each case, under the particular facts there existing, and
his conclusion will not ordinarily be disturbed on appeal. 26 His action must
be guided by the exercise of sound reason, and, thus guided, some test should be
made of the qualifications of such a witness before refusing to permit him to
testify. 27 On the other hand, if the child does not possess sufficient intelli-
gence to understand the nature of an oath, the admission of his testimony,
especially in a capital case, would be a grave error. Under such circumstances,
the action of the court would be in violation of the constitutional provision
permitting the accused to demand the nature and cause of the accusation and
to meet the witnesses against him face to face. 28
20. Draper v. Draper, 68 111. 17 (1873). v. Furman, supra; Gahler v. State, 49 Tex.
21. State v. Severson, 78 Iowa 653, 43 X. Cr. 623, 95 S. VY. 521 (1906); 5 Charab.,
W. 533 (1889); Com. v. Furman, 211 Pa. Ev., 3638, n. 4.
549, 60 Atl. 1089, 107 Am. St. Rep. 594 24. Hughes v. Detroit, etc., Ry. Co., 65
(1905) ; Wheeler v. U. S., 159 U. S. 523, 40 Mich. 10, 31 X. VV. 605 (1887).
L. ed. 244, 10 S. Ct. 93 (1895). 25. Carter v. State, 63 Ala. 52 (1879) ;
22. Miller v. State, 109 Ga. 512, 35 S. E. Hughes v. Detroit, etc., Ry. Co., supra.
152 (1900); Olson v. Olson, 130 Iowa 353, 26. City of Victor v. Smilanich, 54 Colo.
106 N. VV. 758 (1906); People v. Frindel, 479, 131 Pac. 392 (1913); Epstein v. Ber-
.18 Hun 482, 12 X. Y. Supp. 498 (1890): State kowsky, 64 III. App. 498 (1896); State v.
v. Belton, 24 S. C. 185, 58 Am. Rep. 241 Williams, 130 La. 280, 57 So. 927 (1912);
(1886); State v. Michael, 37 VV. Va. 565, Com. v. Marshall, supra; State v. Connors',
16 S. E. 803, 19 L. R. A. 605 (1893); 5 233 Mo. 348, 135 S. W. 444 (1910) ; State v!
Chamb., Ev., 3638, n. 3. Talla, 72 X. J. L. 515, 62 Atl. 675 (1905) ;
23. Bone v. State, 8 Ala. App. 59, 62 S o . People v. Smith, 86 Hun 485, 33 X. Y.
445 (1913); Berry v. State, 9 Ga. App. 868, Supp. 989 (1895); Kelberg v. The Bon
72 S. E. 433 (lltll): People v. Lewis. 252 Marche, 64 Wash. 452. 117 Pac 227 (1911)-
111. 281, 96 X. E. 1005 (1911); State v. State v. Juneau, 88 Wis. 180, 59 X. W 580
Young, 153 Iowa 4, 132 N. VV. 813 (1911) ; (1894) ; 5 Chamb., Ev., 3639, n. 2; Wheeler
Com. v. Marshall, 211 Mass. 86, 97 X. E. 632 v. U. S. supra
(1912); State v. Anderson, 252 Mo. 83. 158 27. Piepke v. Philadelphia & R R v Co
S. W. 817 (1913) : State v. Cracker, 65 X. J. 242 Pa. 321 80 Atl 124 (1913)
L. 410, 47 Atl. 643 (1900): People v. Linzey, 28. Territory v. Duran, 3 N M 189 3
79 Hun 23, 29 X. Y. Supp. 560 (1894) ; Com. Pac. 53 (1884')
915 INSANE PERSONS. 1150
Time to Which Inquiry Relates. The inquiry, as to the competency of a
child to testify, relates to the time of his giving his testimony and not to the
time of the occurrance of the event or other matters concerning which his testi-
mony relates. 29
Instruction of Child. Instruction of a child, in respect to the nature of an
oath and the obligation imposed thereby to speak the truth, may, in some cases,
be permitted so that he may be competent to testify. 30 Thus, the judge may, in
some cases, explain these essentials to a child, 31 and the postponement of a
trial, in a criminal case, has been allowed, to permit of such instruction, in
the case of an important witness. 32
1150. Insanity, Idiocy, Etc. 33 The general statement has been made that
insane persons, or persons non compos mentis, are not competent witnesses. 34
The statement, however, is entirely too broad and sweeping, as taken in the
ordinary acceptation of the word insanity, which manifests itself in various
forms. 35 The views of the judges in one of the leading English cases, 36 are
expressive of the general view, as taken by the various tribunals in which this
question has arisen, the accepted rule being that a person who possesses, at the
time of the inquiry, sufficient mental capacity to correctly narrate facts ob-
served by him and to understand the obligation of an oath, may be permitted to
testify, though he may be affected by some delusion, concerning which he is
irrational on occasions, or by some form of temporary insanity. 37
Incapacity of Time of Occurrence of Transaction. Where it appears that
the mental condition of the witness, at the time of the occurrence of the events
which he is called upon to relate, was such that he was unable to receive and
retain a correct mental impression of the event or transaction, the court will
reject his testimony, having in view the fact that the evidentiary value of the
testimony consists, as much in the ability of the witness to correctly observe
and receive the right impression of the transaction, as to correctly narrate
those impressions received/ 58 There is authority, however, for the admission
29. Kelly v. State, 75 Ala. 21 (1883); 36. Reg. v. Hill, 5 Cox Cr. Cas. 259 (1851) ;
5 Chamb., Ev , 3640. 5 Chamb., Ev., 3643, containing a summary
30. Com. v. Carey, 2 Brewst. (Pa.) 404 of the same.
(1S6S). 37. McKinstry v City of Tuscaloosa, 172
31. McAmore v. Wiley, 49 111. App 615 Ala. 344, 54 So. 629 (1911); People v. Tyree,
( 1893 ): Day v Day, 56 X. H. 316 ( 1876) 21 Cal. App. 701, 132 Pac. 784 (1913);
32. Carter v. State, supra; Com. v. Lynes, People v. Enright, 256 111. 221, 99 N. E. 936
142 Mass. 577, 8 X. E. 408 ( 1886) ; Hol'st v. (1912) ; Kendall v. May, 92 Mass. 59 (1863) ;
State, 23 Tex. App. 1, 3 S. W. 757 (1887); People v, Xew York Hospital, 3 Abb. N. C.
5 Chamb., Ev., 3641, n. 3. 229 (X. Y.) H876) ; Brown v. Armstrong &
33. 5 Chamberlayne, Evidence, 3642- Latta Co., 239 Pa. 549, 87 Atl. 11 (1913);
3647. Coleman v. Com., 25 Gratt. (Va.) 865, 23
34. Armstrong's Lessees v. Timmons, 3 Am. Rep. 711 (1874) ; 5 Chamb., Ev., 3644,
Harr. (Del) 342 (1841); Livingston v. n. 2
Kiersted, 10 Johns. fX. Y.) 362 (1813) 38. Holcomb v. Holcomb, 28 Conn. 177
35. District of ' "olumbia v. Arms. 107 U. S. (1859) ; 5 Chamb., Ev., 3645.
510. 2 Sup. Ct. 840. 27 L, ed. 618 (1882) ; 5
Chamb , Ev., 3642, n. 2.
1151 INCOMPETENCY OF WITNESSES. 910
of the testimony of such a witness, it being declared that the fact of his being
under a delusion or his mind otherwise affected at the time goes to the question
of credibility and not competency. 39 In any event, mental impairment, at the
time of the occurrence will not necessarily render a witness incompetent; the
question of the extent of his infirmity, as affecting his competency as a witness,
is for the trial court. 40
Effect of Allegations in Pleadings. An allegation by a person, in a plead-
ing, of his mental unsoundness will not necessarily operate to exclude him as a
witness. 41 So the fact that one sues by his next friend, as a person of un-
sound mind, his mental unsounduess being admitted in the complaint, does not
necessarily prevent him from being a witness, the question of his competency
being, nevertheless, one for the court to determine. 42 Similarly, though a per-
son, in an action for damages for an assault committed upon him, alleges that
he has been injured in body and mind, he is not necessarily precluded thereby
from becoming a witness; the question of his competency is for the presiding
judge to determine. 43
.4 Question for the Presiding Judge. The question whether a person pos-
sesses the necessary mental qualification, to justify the court in permitting
him to testify as a witness, is a matter peculiarly within the province of the
presiding judge. If he is satisfied that the witness .is possessed of the neces-
sary qualifications, he will permit him to testify; otherwise not. 44 His con-
clusion upon the competency of the witness will not be disturbed except upon
clear proof of an error in his determination. 45 It is, however, held to be the
duty of the court, where a party offers to introduce evidence tending to show
that a person is non compos, to permit of its introduction, since, if a proposed
witness is incompetent on this ground, the fact should be ascertained and his
testimony excluded. 46 The presiding judge may examine the proposed wit-
ness and others who may be acquainted with him, or the examination may be
conducted by counsel under the direction of the court. 47 A finding in lunacy
several years previous to the trial, by which a person was adjudged an idiot
and incapable of managing his affairs, does not necessarily exclude him as a
witness. 48
1151. Intoxication. 49 A person may be excluded, as non compos mentis,
39. Sarbaoh v. Jones, 20 Kan. 497 (1878). comb v. Holcomb, supra; Cannady v. Lynch,
40. Burns v. State. 145 Wis. 373, 128 N. supra; Coleman v. Com., supra; Burns v.
W. 087 .mil). State, supra; District of Columbia v. Arms,
41. Cannady v. Lynch, 27 Minn. 435, 8 X. supra; 5 Chamb., Ev., 3647, n. 1.
W. 104 (1S81). 45. Coleman v. Com., supra.
42. Worthington v. Mencer, 96 Ala. 310, 11 46. Livingston v. Kiersted, supra.
So. 72, 17 L. R. A. 407 (1891). 47. Holcon b v. Holcomb, supra; District
43. Dickson v. Waldron. 135 Ind. 507, 34 of Columbia v. Arms, supra.
X. E. 506, 35 X. E. 1, 24 L. R. A. 483, 41 48. Barker v. Washburn, 200 X. Y. 280, 93
Am. St. Rep. 440 (1893); 5 Chamb., Ev., X. E. f)5S (1911), aff's 128 App. Div. 931,
3646, n. 3. 113 X. Y. Supp. 1124 (1908).
44. Worthington v. Mencer, supra; Hoi- 49. 5 Chamberlayne, Evidence, 3648.
017 DRUG USERS. 1.
on account of intoxication, that is, if it is of such a degree as to render him
incompetent to understand the nature and obligation of an oath. 50 The mere
fact that a person may be intoxicated, when he is called upon to testify, is not
sufficient to operate as a disqualification. 51 Nor will the fact that a man may
be a habitual drunkard render him incompetent. His intoxication, at the time,
must be of the character stated. The question as to competency is, in all
cases, one for the presiding judge to determine, in the exercise of sound reason,
and his determination will seldom be interfered with on appeal. 52 Intoxica-
tion, at the time of the occurrence to which the inquiry relates, has been held
not to affect a person's competency, though it may bear upon the question of
his credibility and the weight of his testimony. 53 Intoxication, at the time of
testifying, may, also, be of such a character as not to exclude a person as a
witness but it mdy bear upon the question of his credibility. 54 The fact that
a person is deprived of the control of his property, in consequence of his
drinking habits, does not operate to exclude him as a witness. 55
1152. Victims of Drug Habits. 56 Where persons are addicted to a drug
habit it is a fact of general knowledge that to a great extent statements made
by them are unreliable. It is therefore properly said in a case, where one
admitted himself to be an opium consumer and that he was under the influ-
ence of the drug both at the time of the occurrences he testified to and at the
time of the trial, that the jury should be carefully cautioned as to their cre-
dence to the testimony. 57 The question of the competency of such persons is
one for the presiding judge, as in other cases of mental unsoundness.
50. State v. Underwood, 6 Ired. L (X. C.) 54. Meyers v. State, 37 Tex. Cr. 208, 39 S.
96 (1845); Hartford v Palmer, 16 Johns. W. Ill (1897).
(N. Y.) 143 (1819) ; 5 Chamb., Ev., 3648, n. 55. Gebhart v. Shindle, 15 Serg. & R. (Pa.)
1. 235 (1824).
51. Eskridge v. State, 25 Ala. 30 (1854) ; 56. 5 Chamberlayne, Evidence, 3649.
Gould v. Crawford, 2 Pa. 89 (1846). 57. State v. White, 10 Wash 611, 39 Pac.
52. Id.; State v. Underwood, supra. 160, 41 Pac. 442 (1895); 5 Chamb., Ev., ,
53. State v. Sejoins, 113 La. 676, 37 So. 3649.
509 (1904).
CHAPTER LXIII.
IXCOMPETENCY OF WITNESSES; POLICY OF THE LAW.
Incompetency of witnesses; policy of the law; atheism and other disbelief in
God, 1153.
attorneys, 1154.
husband and wife; general rule, 1155.
infamous crimes; common law rule, 1156.
interest, etc., 1157.
judge and jurors, 1158.
1153. Incompetency of Witnesses; Policy of the Law; Atheism and Other Dis-
belief in God. 1 The rule, as generally stated, is that a person, who does not
believe in a supreme being and in future rewards and punishment for acts com-
mitted in this world, is not competent as a witness. 2 The latter part of this
statement is, it would seem, somewhat too broad, for a person may believe in
a supreme ruler of the universe who punishes and rewards during one's earthly
existence. In such a case there is no good reason why his testimony should be
rejected. 3 The fact, however, that a person expressed a disbelief in a supreme
being, at some time prior to the trial, will not, necessarily exclude him. 4 The
inquiry does not relate to the particular creed or denomination of the witness.
Belief in the existence of a supreme being and the sanction of an oath seem to
be the requisites. 5 A frequent mode of establishing the fact of disbelief is
by declarations, made out of court, in the presence of others. 6 After it has
been established that a person, offered as a witness, is an infidel it is said that
he will not then be permitted to establish, by his statements in court, that he
is not. 7
1. 5 Chamberlayne, Evidence, 3650- 4. Smith v. Coffin, 18 Me. 157 (1840);
3652. Jackson v. Gridley, 18 Johns. (X. Y.) 98
2. Central Military Tract. R. Co. v. Rock- (1820) ; Scott v. Hooper, supra.
afellow, 17 111. 541 (1856) -. Thurston v. Whit- 5. Donkle v. Kohn, 44 Ga. 206 (1871);
ney 56 Mass. 104 (1848) ; People v. McGarren, Arnold v. Estate of Arnold, 13 Vt. 362
17 Wend. (X. Y.) 460 (1837); Com. v. Win- (1841); State v. Browning, 153 Iowa 37,
nemore, 2 Brewst. (Pa.) 378 (1867); Scott 133 X. W. 330 (1911); 5 Chamb., Ev.,
v. Hooper. 14 Vt. 535 (1842); 5 Chamb., 3650, n. 4.
Ev., 3650, n. 1. 6. Smith v. Coffin, supra; Thurston v. Whit-
3. Beeson v. Moore, 132 Ala. 391, 31 So. ney, supra; Xorton v. Ladd, 4 X. H. 444
456 (1902); Ewinp v. Bailey, 36 111. App. (1828); Jackson v. Gridley, supra; Blair v.
191 (1889); Hunscom v. Hunscom. 15 Mass. Seaver, supra; 5 Chamb., 'EV., 3650, n. 5.
184 (1818) ; People v. Matteson, 2 Cow. (X. Expressions to this efiect, however, are by no
Y.) 433 (1823); Brock v. Milligan, 10 Ohio means conclusive. Thurston v. Whitney,
121 (1840); Blair v. Seaver, 26 Pa. 274 supra.
(1856) ; 5 Chamb., Ev., 3650, n. 2. 7. Smith v. Coffin, supra; Jackson v. Grid-
918
919
ATTORNEYS.
1154:
1154. Attorneys. 8 The right of au attorney in a cause to take the stand
as a witness in that cause is generally acknowledged, 1 ' unless by statute some
modificatign or change in the general rule is made. lu Such a right has been
recognized, even though the fee of the attorney, either in whole or in part, may
depend upon the success or failure of his client, 11 although, under such circum-
stances, his testimony has, in some cases, been rejected on the ground of in-
terest. 12 On account of bias and partiality arising from the relation between
the attorney and his client the jury may in some cases regard his testimony as
thus affected, giving weight to this situation. 13 The propriety of such pro-
cedure, undoubtedly, cannot in some cases, be questioned ; in fact there may be
circumstances when it might be regarded as in the nature of a duty, which the
attorney owes, to so act. 14 Ordinarily, however, courts have regarded such a
course with much disfavor, 15 having variously characterized it, both mildly,
as a question of professional propriety which the attorney must decide, 10 as a
practice not to be encouraged, 17 and, severely, as an indecent practice which
should be discountenanced. 18 If an attorney desires to avail himself of such
a right it seems that, as has been suggested in some decisions, 19 the proper
ley, supra. Compare Thurston v. Whitney,
supra
Theory of Rule. The theory upon which
this rule is founded is, that one, who does
not possess such belief, feels in no way obli-
gated or bound by an oath, which is the na-
ture of an appeal to God to be a witness of
what one may testify to and is a recognition
of the power to punish for speaking that
which is untrue. Thurston v. Whitney.
supra; Arnold v. Estate of Arnold, supra;
5 Chamb., Ev., 3651.
Should testimony of disbelievers be re-
ceived? Viewed in all its aspects it would
seem that the testimony of all such persons
should be received and the fact of their dis-
belief be considered upon the question of
their credibility Easterday v. Kilborn,
Wright (Ohio) 345 (1833); 5 Chamb., Ev.,
3652.
8. 5 Chamberlayne, Evidence, 3653,
3654.
9. Morgan v. Roberts, 38 111. 65 (1865):
Lloyd v. Davis, 2 Ind. App. 170, 28 X. E. 232
(1891); Potter v. Inhabitants of Ware, 1
Cush. (Mass.) 519 (1848); State v. Hedge-
peth, 125 Mo. 14, 28 S W. 160 (1894) : Thon
v Rochester Ry. Co.. 83 Hun 443, 30 X. Y.
Supp. 620 (1894); Cox's Adm'rs v. Hill, 3
Ohio 411 (1828): Follansbe v. Walker, 72
Pa. 228, 13 Am. Rep. 671 (1872) : 5 Chamb..
Ev., 3653, n 1.
10. Hines v. State, 26 Ga. 614 (1859);
Cox v. Williams, 5 Mart. (N. S.) La. T39
(1826).
11. Central Branch Union Pac. R. Co. v.
Andrews, 41 Kan. 370, 21 Pac. 276 (1889);
Flower v. O'Conner, 7 La. 198 (1834); Slo-
cum v. Newly, 5 X. C. 423 (1810) ; 5 Chamb.,
Ev., 3653, n. 3. The fact of the fee being
contingent has been regarded as affecting only
his credibility. Central Branch Union Pac.
C'o. v. Andrews, supra
12. Hall v. Acklen, 9 La. Ann. 219 (1854) ;
Dailey v. Monday, 32 Tex. 141 (1869). The
right of an attorney to testify being admit-
ted, the fact of his fee being dependent upon
the success of the client, even though the
former's testimony might be rejected at com-
mon law, on the ground of interest, yet, in-
competency, due to the witness being a party
to or interested in the suit, being removed by
statute, there could exist no reason for re-
jecting his testimony. Central Branch Union
Pac R. Co. v. Andrews, supra.
13. Little v. McKeon, 3 X. Y. Super. Ct.
(1 Sandf.) 607.
14. Potter v. Inhabitants of Ware, supra.
15. Little v. McKeon, supra
16. Morgan v. Roberts, supra ; Hall & Co.
v. Renfro, 3 Mete. (Ky ) 51 (1860).
17. State v. Woodside, 9 Ired. L. (31 N.
C.) 496 (1849).
18. Frear v. Drinker, 8 Pa. 520 (1848).
19. State v. Woodside, supra; Bell v. Bell,
12 Pa. 235 (1849).
1155
IN COMPETENCY OF WITNESSES.
920
course for him to pursue, consistent with the dignity of the profession and the
maintenance of the standards which should be adhered to by it, would be to
retire from the conduct of the case.
1155. Husband and Wife; General Rule. 520 According to the common law
rule a husband or wife was regarded as incompetent to testify either for or
against the other. 21 Such persons were excluded upon what were deemed to
be reasons of public policy. 22 In criminal prosecutions for an offense committed
either by a husband or wife, the other party to the marriage relation was ordi-
narily excluded under the general rule.- 3 And the wife of one of several de-
fendants on trial at the same time cannot, under this rule, be called as a wit-
ness for or against any of them. 24 The marriage relation also operates to ex-
clude the wife as a witness in an action by the husband for criminal conversa-
tion. 25 Likewise, the fact of non-access of the husband to the wife, frequently
sought to be prov'ed in cases involving the legitimacy of a child, was not al-
lowed to be established by either the husband or wife. 26 . ]S : or can the husband
testify in a suit involving the separate estate of his wife under the common
20. 5 Chamberlayne, Evidence, 3655-
3662.
21. Stanford v. Murphy, 63 Ga. 410
(1879) ; People v. Bladek, 259 111. 69, 102 N.
E. 243 (1913) ; Burlen v. Shannon, 80 Mass.
433 (I860); Whelpley v. Stoughton, 119
Mich. 314, 78 N VV. 137 (1899): State v
Vaughan, 136 Mo. App. 645, 118 S. W. 1186
(1909) ; Weckerly v. Taylor, 74 Neb. 772, 105
N. W. 254 (1905) ; People v. Moore, 65 How.
Pr. (X. Y.) 177 (1882) ; Collendar v. Kelly,
190 Pa. 455, 42 Atl. 957 (1899): Wilkes'
Adm'r v. Wilkes, 115 Va. 886, 80 S. E. 745
(1914); Talbott v. U. S., 208 Fed. 144, 125
C. C. A. 360 (1913) ; 5 Chamb., Ev., 3655,
n. 1.
22. It was thought that by not permitting
their testimony to be received dissensions and
distrust between them would be avoided
which result it was believed would not en-
sue in many cases if they testified to the
truth. Furthermore their desire frequently to
avoid such a result or to protect each other
was regarded as a strong incentive to the
commission of perjury. In view of such con-
siderations as these, variously expressed by
the courts, it was considered that the policy of
the law would be better served by refusing
to permit them to testify under such circum-
stances. Wilson v. Shepard, 28 Ala. 623
(1856); Dwelly v. Dwelly, 46 Me. 377
(1859); Kelley v. Proctor, 41 N. H 139
(1860); Prongle v. Pringle, 59 Pa. 281
(1868); W 7 illiam & Mary College v. Powell,
12 Gratt. (Va.) 372 (1855); 5 -Chamb., Ev.,
3655, n. 2.
23. Rivers v. State, 118 Ga. 42, 44 S. E
859 (1903) ; Gillespie v. People, 176 111. 238,
52 N. E. 250 (1898) ; Wilke v. People, 53 N.
Y. 525 (1873) ; Thurman v. State. 2 C. D.
466 (1889) ; Com. v. Woodcroft, 17 Pa. Co. Ct.
R. 554 (1896); Baker v. State, 120 Wis.
135, 97 N. W. 566 (1903) ; 5 Chamb., Ev.,
3656, n. 1.
24. Talbott v. U. S., supra. Though if the
case against the husband of the proposed wit-
ness has been disposed of, as by a plea of
guilty or by a verdict for or against him,
the fact that he was accused in conjunction
with others, will not exclude her testimony
for or against the latter. R. v. Thompson,
3 F. & F. 824 (1863) ; 5 Chamb., Ev., 3656,
n. 3.
25. Groom v. Parables, 28 111. App 152
(1888): Carpenter v. White. 46 Barb. (N.
Y.) 291 (1866); Speck v. Gray, 14 Wash.
589, 45 Pac. 143 (1890); 5 Chamb., Ev.,
3656, n. 4. Compare Smith v. Meyers, 52
Neb. 70, 71 N. W. 1006 (1897).
26. Palmer v. Palmer, 79 N. J. Eq. 496, 82
Atl. 358 (1912): Timmann v Timmann. 142
N Y. Supp. 298 (1913); Com. v. Shepherd,
6 Binn. (Pa.) 283, 6 Am. Dec. 449 (1814):
Mink v. State, 60 Wis. 583. 19 N. W. 445
(1884) ; 5 Chamb.. Ev. 3656, n. 5.
921 HUSBAND AND WIFE. 1155
law rule. 27 Similarly the incompeteney of the wife extended to a suit against
a partnership of which her husband was a member. 28 Husband and wife were
not permitted to violate the rule even by agreement. 29
Unlawful Cohabitation. The rule at common law only applied to those
persons who lawfully occupied the relation towards each other of man and
wife, and did not include those who were living together in violation of the
law, such as a man and his mistress, 30 or as the result of a bigamous marriage. 31
If they are not lawfully married or are living together in immoral relations it
seems that the testimony of either may be received, 3 - the fact that they are living
in such a relation being said to only affect the credit and not the competency
of the witness. 33 In a prosecution for statutory rape, it may be shown that no
lawful marriage ever took place between the prosecutrix and the defendant,
for the purpose of enabling her to testify. 34 The policy of the law, for reasons
of which the testimony of such persons was excluded, had in view only those
who occupied the relation of man and wife, de jure. It was never intended
thereby to give recognition to illicit intercourse and cohabitation and place
those occupying such a relation on the same plane, by exclusion of their testi-
mony, as was occupied by those bound together by the lawful and holy ties of
matrimony. 35
Exceptions. The testimony of a wife has been received, in an action
brought for necessaries furnished to her to show the facts of her expulsion
from her husband's home and his failure to provide for her, 36 upon the theory
of necessity, in that, in the great majority of cases, there would be no other
proof of such facts, thus preventing the courts from enforcing the liability of
the husband to provide for his wife. 37 So an exception is recognized where the
27. George Tucker Commission Co. v. Bell, Johnson, 9 La. Ann 308 (1854); 5 Chamb.,
62 Ark. 26, 34 S W. 80 (1896); Jones v Ev., 3657, n. 3
Bassett, 27 Ind. 58 (1866): Wood v. Broad- 33. Metiiner v. Conet, 2 Mart. (La.) 56
ley, 76 Mo. 23, 43 Am. Rep. 754 (1882); (1811). Thus in the case of a man whom
\Varne v Dyett, 2 Edw. Ch. (X. Y) 497 his first wife had divorced and obtained a
( 1835) ; 5 Chamb., Ev., 3656, n. 6 decree forbidding him to marry again, a
28 McEwen v. Shannon & Co., 64 Vt. 583. woman with whom he had subsequently co-
25 All. 661 ( 1892) . habited, though referred to by him as his wife
29. Dwelly v. Dwelly. 46 Me. 377 (1859); would not be excluded by the rule under
Colbern's Case, 1 Wheel C. C. (X Y ) 479 consideration. Dennis v. Crittenden, supra.
( 1823) . The same situation would exist if he had mar-
30. Wrye v. State, 95 Ga. 466. 22 S E ried again within the jurisdiction, as the mar-
273 (1894) ; Dennis v. Crittenden, 42 X Y. riage would not be one recognized as lawful.
542 (1870); Morrill v. Palmer, 68 Vt 1. 34. People v. Schoonmaker, 119 Mich. 242,
33 Atl. 829 (1895) ; 5 Chamb. Ev., 3657, 77 X. W. 934 (1899).
n 1 35. Rickerstricker v. State, 31 Ark. 207
31. Jeims v. State, 141 Ga 493. 81 S. E. (1876) : State v Samuel. 2 Dev. & B. (N. C.)
202 (1914); Hoch v People, 219 111. 265. 76 177 (1836).
X. E. 356 (1905): Kelly v Drew. 12 Allen 36. Wilcoxson v. Read, 95 111. App. 33
(Mass) 107, 90 Am. Dec. 138 (1866); 5 ( 1900) : Morgenroth v. Spencer, 124 Wis. 564,
Chamb., Ev.. 3657, n. 2. 102 X. W. 1086 (1905).
32. Elanagin v. State, 25 Ark. 92 (1867) ; 37. Bach. v. Parmely, 35 Wis. 238 (1874).
Hill v. State, 41 Ga. 484 (1871); State v.
1155 INCOMPETENCY OF WITNESSES.
husband commits an offense against the person of the wife, 38 or her testimony
is needed to prove the fact of some injury sustained by her by the act of a
third party. 39 Similarly a married woman may testify as to the question of
unlawful intercourse with her where the proceeding is one to charge a man
with the support of a bastard borne by her, 40 the exception in such a case being
also regarded as founded upon necessity. 41 In the case of agency also, where
either the husband or wife acts as agent for the other, testimony has been al-
lowed, in some cases under statute and in some cases independent thereof, of
the parties in respect thereto. 42
Injuries to Husband or Wife. The rule of the common law, rendering the
husband or wife incompetent to testify for or against the other, was subject to
an exception in the case of injuries inflicted by one upon the other, 43 particu-
larly founded upon the theory of the necessity of the case, having in view the
fact that such acts were so frequently done under such conditions and circum-
stances as to render proof of them, by the testimony of third persons, impos-
sible. The rule seems to have had reference more particularly to violent in-
juries than to those affecting the feelings or pride merely of the other. Thus
the exception was held not to apply to adultery by the husband or wife. 44 Xor
was an indecent assault committed upon a minor daughter within the meaning
of the exception. 45 A like rule prevailed in a prosecution for bigamy. 46 Sim-
liarly the offense of polygamy is not a crime against the wife, within the mean-
ing of a code provision excepting a husband or wife from the operation of
the rule in " a criminal action or proceeding for a crime committed by one
against the other," 47 a statute to this effect being considered, like the com-
mon law exception, as having reference to acts of personal violence. 48 In an
38. Stein v. Bowman, 13 Pet. (U. S.) 209, v. Northnip, 50 Barb. (X. Y.) 147 (1867);
10 L. ed. 12$) t 1830). Whipp v. State, 34 Ohio St. 87, 32 Am. Rep.
39. King v. Luffe, 8 East 193 (1907). 359 (1877); Com. v. Reid, 8 Phila. (Pa.)
40. People v. Overseers of Poor, 15 Barb. 385 (1871) ; 5 Chamb., Ev., 3659, n. 1.
(N. Y.) 286 (1853) ; Com. v. Shepherd, 6 44. Bishop v. Bishop, 124 Ga. 293, 52 S. E.
Binn. (Pa.) 283, 6 Am. Dec. 449 (1814); 5 743 (1905); Com. v. Sparks, 89 Mass. 534
Chamb., Ev., 3658, n. 5. (1863); People v. Fowler, 104 Mich. 449. 62
41. Com. v. Shepherd, supra. X. W. 672 (1895); Com. v. Jailer, 1 Grant
42. Dannewitz v. Miller, 179 111. App. 185 Cas. (Pa.) 218 (1855); 5 Chamb., Ev.,
(1913) ; Green v. McCracken, 64 Kan. 330, 67 3659, n. 2.
Pac. 857 (1902); Packard v. Reynolds, 100 45. People v. Westbrook, 94 Mich. 629, 54
Mass. 153 (1868); Orchard v. Collier, 171 X. W. 486 (1893).
Mo. 390, 71 S. W. 677 (1903); Hathorn v. 46. Hiller v. State, 156 111. 611, 41 N. E.
Louis, 170 N. Y. 576, 62 N. E. 1096 (1902); 181 (1895); State v. Ulrich, 110 Mo. 350,
Lawman v. Elaine County Bank, 40 Okl. 519, 19 S. W. 656 (1892) ; People v. Houghton,
139 Pac. 952 (1914); Madison v. City of 24 Hun (X. Y.) 501 (1881).
Antigo, 153 Wis. 448, 141 X. W. 287 (1913) ; 47. Bassett v. U. S., 137 U. S 496, 34 L. ed.
5 Chamb., Ev., 3658, n. 7. 762, 11 S. Ct. 165 (1890) ; 5 Chamb., Ev.,
43. State v. Chambers, 87 Iowa 1, 53 X. W. 3659, n. 5.
1090 (1893); Com. v. Murphy, 4 Allen 48. Baxter v. State, 34 Tex. Cr. 516, 31 S.
(Mass.) 491 (1862); State v. Pennington, W. 394 ( 1895) : State v. Woodrow, 58 W. Va.
124 Mo 388, 27 S. W. 1106 (1894) ; People 527, 52 S. E. 545 (1905).
923
HUSBAND AND WIFE.
1155
action by both husband and wife for an injury to the wife, the rule of exclusion
was also relaxed. 49
Tendency to Remove Restrictions. The arbitrary exclusion of witnesses,
possessed of the requisite mental capacity to testify, under the early restric-
tions of the common law, as applied, subject to such exceptions as we have re-
ferred to, has been the subject of some adverse comment by the courts as being
hardly consistent with the objects of judicial tribunals, viz., the discovery of
truth and the attainment of justice. 5 ^
Statutes. As an outgrowth of these ideas and views, many exceptions and
qualifications of the common law rule regarding husband and wife have been
made by legislative enactment. 51 A statute, however, removing disqualifica-
tion arising from interest has not generally been regarded as removing the in-
competency of husband or wife 52 upon the theory that the disqualification,
exists not by reason of interest but on grounds of public policy.
Does Death or Divorce Remove Incompetency? The rule is frequently
stated that divorce does not remove the disability of incompetency 53 and that
death does. 54 In other decisions the rule is stated that death does not remove
the incompetency as to confidential matters, knowledge of which was acquired
as a result of the marriage relation and during its existence. 55 A similar con-
clusion has also been reached in the case of divorce. 56 In vet other cases testi-
49. City of Rock Island v. Deis, 38 III.
App. 409 (1890); Hooper v. Hooper, 43
Barb. (X. Y.) 292 (1865) ; Hoverson v. Xoker,
60 Wis. 511, 19 X. W. 382 (1884) ; 5 Chamb.,
Ev., 3659, n. 8.
50. Stapleton v. Crofts, 18 Q. B. 367
(1852) : 5 Chamb., Ev., 3660, n. 1.
51. Johnson v. McGregor, 157 111. 350, 41
N. E. 558 (1895) ; Anderson v. Edwards, 123
Mass. 273 (1877) ; O'Bryan v. Allen, 95 Mo.
68, 8 S. W. 225 (1888) ; Westerman v. West-
erman, 25 Ohio St. 500 (1874): Sahms v.
Brown, 4 Pa. Co. Ct. 488 (1887) ; 5 Chamb.,
Ev., 3661, n. 1.
52. Kelly v. Drew, 94 Mass. 107, 90 Am.
Dec. 138 (1866 1: Mitchinson v. Cross, 58
111. 366 (1871); Com. v. Brink, 5 Lane. L.
Rev. 23 (1887); Carpenter's Ex'r v. Moore.
43 Vt. 392 (187D ; 5 Chamb., Ev., 3661, n.
2. But see Moore v. Moore, 51 Mo. 118
(1872): Birdsall v. Patterson, 51 X Y. 43
( 1872) ; Yeager v. Weaver, 64 Pa. 425 ( 1870) .
53. In re Evans' Estate, 114 Iowa 240, 86
N. W. 283 (1901); Barnes v Camack, 1
Barb (X. Y.) 392 (1847); Cook v Grange.
18 Ohio 26 (1849) ; French v. Ware, 65 Vt.
338, 26 Atl. 1096 (1892): 5 Chamb.. Ev..
3662, n. 1. Where a charge of perjury was
brought on the ground that the defendant
had previously obtained a divorce by falsely
testifying that he was a resident of the
state the defendant objected to the testimony
of the wife on the ground that a wife could
not testify against the husband and the
court after looking at the decree of divorce
allowed the wife to testify. The defendant
should not be allowed to take two such in-
consistent positions. Preliminary questions
of fact are for the court even when the pre-
liminary question is also the main issue in the
case. Laird v. State (Texas 1916), 184 S. W.
810.
54. Robnett v. Robnett, 43 111. App. 191
(1892) ; Coffin v. Jones. 13 Pick. (Mass.) 441
(1833); Sells v. Tootle, 160 Mo. 593, 61 S.
W. 579 (1901,); Stober v. McCarter, 4 Ohio
St. 513 (1855); Poundstone v. Jones, 187
Pa. 289, 4 Atl. 21 (1898); 5 Chamb., Ev.,
3662, n. 2.
55. Yokem v. Hicks, 93 111. App. 667
(1901); Lyons v. Lyons, 101 Mo. App. 494,
74 S. W. 467 (1903); Stowe v. Bishop, 58
Vt. 498, 3 Atl. 494 (1886) ; 5 Chamb., Ev.,
3662, n. 3.
56. Toohey v. Baxter, 59 Mo. App. 470
(1894) ; French v. Ware, supra.
1156 INCOMPETENCY OF AViTNESSES.
mony has been received as to matters occurring after divorce, 57 as to state-
ments made fo third persons during the existence of the relation, 58 and as to
facts, knowledge of which was acquired independent of the relation. 59
1156. Infamous Crimes; Common Law Rule.* 50 Under the rule which pre-
vailed at common law, a conviction of a person of an infamous crime, which
included treason, felony and every species of crimen falsi, 61 followed by a
judgment of the court, rendered the convicted person .incompetent as a wit-
ness, 62 as a result, it is said, of the infamy of character arid loss of moral
principle which are manifested by the commission of the crime. 03 Under this
rule upon proof of a 'conviction and sentence for an infamous crime a presump-
tion of the person's incompetency arises which must be overcome before he will
be permitted to testify. 04
Disqualification Ensues on the Judgment Upon the Conviction. It is not
the conviction alone which renders a person incompetent as a witness ; it is the
judgment pronounced by the court upon the conviction. 65 A verdict of guilty,
not followed by a judgment by the court, will not render him incompetent as a
witness. 66 Xor will the testimony of a witness, taken under a commission*
that he has committed a crime, 67 nor a plea of guilty, 08 nor the finding of a
true bill, 69 disqualify a witness. And pending an appeal it has been held that
such a person may .testify; 70 similarly in the case of a suspended sentence. 71
Conviction in Foreign Jurisdiction. Conviction of a person in one state is
not generally regarded as operating to affect the competency of a witness be-
yond the jurisdiction of such state, in the absence of some statute to the con-
! *
57. Long v. State, 86 Ala. 36, 5 So. 443 (1901); Thornton v. State, 25 Ga. 301
(1888). (1858) ; Dawley v. State, 4 Ind. 128 (1853) ;
58. Mercer v. Patterson, 41 Ind. 440 (1872). Blaufus v. People, 69 X. Y. 107, 25 Am. Rep.
59. Elswiek v. Com., 13 Bush (Ky.) 155 148 (1877) ; Com. v. Miller, 6 Pa. Super. Ct.
(1877); 5 Chamb., Ev., 3662. ' 35 (1897); 5 Chamb., Ev., 3664, n. 1.
60. 5 Chamberlayne, Evidence, 3663- 66. Faunce v. People, 51 111. 311 (1869).
3668. 67. Laborde v. Consol. Ass'n of Planters, 4
61. County of Schuylkill v. Copley, 67 Pa. Rob. (La.) 190, 39 Am. Dec. 517 (1843).
386 (1871); Maxey v. U. S., 207 Fed. 327, 68. U. S. v. Wilson, 60 Fed. 890 (1894).
125 C. C. A. 77 (1913). 69. Powell v. State, 72 Ala. 194 (1882).
Manslaughter. The fact that a witness 70. Foster v. State, 39 Tex. Cr. 399, 46
has been convicted of manslaughter does not S. W. 231 (1898). Compare Hitter v. Demo-
render him incompetent as a witness. State cratic Press Co., 68 Mo. 458 (1878); State
v. Laboon, 107 S. C. 275, 92 S. E. 622, L. R. v. Harras, 22 Wash. 57, 60 Pac. 58 (1900).
A. 1917 F 896 (1917). 71. Espinoza v. State (Tex. Cr. App. 1914),
62. Myers v. People, 26 111. 173 (1861); 165 S. W. 208. The fact, however, that a
State v. Clark, 60 Kan. 450, 56 Pac. 767 judgment might have been arrested or re-
L899); Le Baron v. Crombie. 14 Mass. 234 versed on error will not operate to remove
(1817): People v. Whipple, 9 Cow. (N. Y.) the incompetency, ensuing as a result of the
7d7 (1827) ; Quillan v. Com., 105 Va. 874, 54 action of the tribunal, where the defendant
3 (1906); r, Chamb., Ev., 3663. n. 2. submitted to the judgment of the court.
63. Com. v. Green, 17 Mass. 514 (1822). Com. v. Keith, 49 Mass. 531; 5 Chamb., Ev.,
64. State v. Clark, supra. 3664, n. 8.
65. Yates v. State, 43 Fla. 177, 29 So. 965
925 CRIMINALS. 1156
trary in the foreign jurisdiction in which it is desired to introduce the testi-
mony of such witness. 72 The clause in the second section of the fourth article
of the United States Constitution, as to giving faith and credit to the judicial
proceedings of another state, is not regarded as atfecting judgments in crim-
inal suits, so as to attach incompetency resulting from conviction beyond the
jurisdiction of the state in which the judgment was rendered.' 3
When Competency Restored. Where disqualification ensues, as a result of
the judgment, the generally accepted rule is that a pardon restores the com-
petency of the convicted person. 74 Where, however, the disability is annexed
by statute the prevailing opinion seems to be that it does not so operate, 75
although there is much authority in favor of the contrary view. 76 A limited
pardon, 77 an executive act, which restores a convicted person to citizenship, 78
or a paper which only releases and discharges a prisoner from the penitentiary
or other place of confinement, 79 does not remove the disability of incom-
petency which attached, as a result of <the conviction. A pardon after serving
the term will have the same effect as one granted during the term. 80 Service
of the sentence has been held not to, of itself, operate to restore competency. 81
Growth of Belief That Rule too Strict. The rule at common law, which
excluded a person as a witness under such circumstances, has been, to a great
extent, modified both as a result of the tendency of the judicial mind 82 and
the action of legislative bodies, 83 upon the theory that the court should receive
72. Com. v. Green, 17 Mass. 515 (1822):' 77. State v. Timmons, 2 Harr. (Del.) 529
National Trust Co. v. Gleason, 77 X. Y. 400, (1833).
33 Am. Rep. 632 (1879) : Logan v. U. S., 144 78. People v. Bowen, 43 Cal. 439 (1872).
U. S. 263, 12 S. Ct. 617, 36 L. ed. 429 1 1892) ; 79. State v. Kirschner, 23 Mo. App. 349
5 Chamb., Ev., 3665, n. 1. But see State (1886).
v Foley, 15 Xev. 64, 37 Am. Rep. 458 (1880) ; 80. People v. Bowen, supra; State v. Foley,
Pitner v. State, 23 Tex. App. 366, 5 S. W. 210 15 Xev. 64, 37 Am. Eep. 458 (1880) ; State
(1887). v. Blaisdell, 33 X. H. 388 (1856).
73. Com. v. Green, supra; 5 Chamb., Ev., 81. State v. Benoit, 16 La. Ann. 273
3665, n 2. (1861); 5 Chamb., Ev., 3666, n. 8. Ef-
74. State v. Baptiste, 26 La. Ann. 134 feet of statute, see United States v. Hall,
(18-74); Diehl v. Rodgers, 169 Pa. 316, 32 53 Fed. 352 (1892).
Atl. 424, 47 Am. St. Rep. 908 (1895) ; Worm- 82. Vance v. State, 70 Ark. 272. 68 S W.
ley v. State (Tex. Cr. App. 1912), 143 S. W. 37 (1902) ; Bickel's Ex'rs v. Fasig's Adm'r,
615; Thompson v. U. S., 202 Fed. 401, 120 33 Pa. 463 (1859); Benson v. U. S., 146
C. C. A. 575 (1913) ; 5 Chamb. Ev., 3666, U. S. 325, 36 L. ed. 991, 13 S. Ct. 60 (1892).
n. 1. For an interesting article on the ques- 83. People v. Willard, 92 Cal. 482. 28 Pac.
tion of the effect of a pardon in removing the 585 (1891); Stone v. State, 118 Ga. 705,
disqualification of a witness see 28 H. L. R. 45 S. E. 630 (1903): Dotterer v. State, 172
647. Ind. 357, 88 X. E. 689 (1900): Xewhall v.
75. Foreman v. Baldwin, 24 111. 298 (1860). Jenkins, 2 Gray (Mass.) 562 (1854): Ex
See Klein v. Dinkgrave, 4 La. Ann. 540 parte Marmaduke. 91 Mo. 228. 4 S. W, 91
(1849) -. Houghtaling v. Kelderhouse, 1 Park. (1RS6) : People v. McGloin. 91 X. Y. 241. 12
Cr. R. (X. Y.) 241 (1851). Abb. X. C. 172 (1882): Hopt v. People. 110
76. Sin-ileton v. State. 38 Fla. 297, 21 So. U S. 574, 4 S. Ct. 202, 28 L. ed. 262 (1883) ;
21, 34 L. R. A. 251, 56 Am. St. Rep. 177 5 Chamb., Ev., 3667, n. 2.
(1896): Wood v. Fitzgerald. 3 Or. 568
(1870); Diehl v. Rodgers, supra.
11^7 INCOMPETENCY OF WITNESSES. 926
the testimony of any person, who is mentally competent, weight being given to
it according to the circumstances of each particular case, the fact of a convic-
tion going to the credibility of the witness and not to the question of com-
petency.
Legislative Provisions. A frequent legislative provision is that though a
person may have been convicted of a criminal offense he may, nevertheless, be
a competent witness, but that such conviction may be proved and considered
as bearing upon his credibility. 84 Such an enactment is not to be regarded
as violative of a constitutional provision which secures to a party in a civil
action a jury trial, or of one vesting in certain courts the judicial power of
the state. 85 Xor is such a statute ex post facto in its operation as to offenses
committed prior to its passage. 86
1157. Interest, Etc. 87 Under the practice at common law it was deemed
that persons who were interested in or were parties to the proceedings, were, by
reason of such fact, so under the temptation to testify falsely that they should
be rejected. 88 The belief gradually grew that such rejection was contrary to
experience and that so broad a rule of exclusion should be swept aside and the
testimony of such persons received as better tending to an ascertainment of
truth and the administration of justice by the courts, until finally, by reason
of legislative enactments, the exclusion of such persons as incompetent, because
of interest, has become of importance only from a historical standpoint.
Survivors. In removing the disqualification on account of interest legisla-
tive bodies have, as a general rule, deemed it advisable to make an exception
in the case of the survivor of a transaction, 89 upon the theory that, as the
mouth of one of the parties had been closed by death or incapacity, it would
tend to jeopardize the estates of such persons to permit the survivor to give
his version of an affair in which both had been interested. The wisdom of
permitting such acts to remain in force may well be questioned; in fact much
the same objection exists why they should be relegated to the past as existed in
the case of incompetency by reason of interest. 90
84. See cases cited in last preceding section. 89. See the various statutes of the different
85. Sutton v. Vox, 55 Wis. 531, 13 X W. States
477, 42 Am. Rep. 944 (1882). 90. St. John v. Lofland, 5 X. D. 140, 64
86. Hopt v. People, supra. X W. 830 (1895); 5 Chamb., Ev.. 3670.
87. 5 Chamberlayne, Evidence. 3669, Under a statute prohibiting a party from tes-
tifying as to a transaction with a deceased
88. Soule v. Dawes. 6 Cal. 473 (1856): person one cannot testify that he saw a cer-
Rome v Dickerson, 13 Ga. 302 (1853) ; Lucas tain note in possession of a joint defendant
v. Spencer, 27 111. 15 (1861) : Binney v. where this tended to show that the note for-
Merchant, 6 Mass. 190 (1810); Todd v. merly held by the deceased had been paid as
Boone County, 8 Mo 431 (1841) ; City Bank this is doing indirectly what cannot be done
of Brooklyn v. McChesney, 20 X. Y. 240 directlv. Wall v. Wall. 130 O a . 270. 77 S. E
(18591; Halo v. Wetmore. 4 Ohio St 600 19, 45 L. R. A (X. S.) 583 (1913). Under
(1855) . Camp v. Stark, 81 Pa. 235 (1875) ; a statute rendering a witness incompetent to
5 Chamb., Ev., 3669, n. 1. testify as to transactions with a deceased per-
927
JUDGES AND JURORS.
1158. Judges and Jnrors. 91 An instance where a person offered as a wit-
ness has been excluded, on the ground of public policy, occurs in the case of a
judge whose testimony is desired in the court of which he is sole judge. 92
Much the same situation has been considered as existing where the judge, whose
testimony is desired, is a member of a court which is composed of more than
one judge. In such a case it seems that, if his action is not required, he may
be permitted to testify, though, in such a case, the proper course for him to
pursue would be to decline to return to the bench. 93 If, however, his services
are needed as a member of the court many of the American decisions seem to
regard it as decidedly improper for him to testify, and he is accordingly de-
clared to be, on grounds of public policy, incompetent as a witness. 94 This,
however, does not seem to be in accord with the early English practice 95 and
the objections to such testimony seem rather chimerical than sound. 96
A very similar objection to the testimony of a juror has been made. 97 If
the evidence is material, any mischief can be prevented by challenging the
juror, as has been repeatedly held or provided by statute. 98 Grand jurors are
frequently allowed to testify in regard to what took place before them as mem-
bers of the grand jury, 99 having reference more particularly to a contradiction
son one cannot testify if an interested witness
to a transaction or conversation between a
deceased person and a party to the suit al-
though he did not participate in the conver-
sation or transaction. So one who claims
property as the successor of his wife who is
dead cannot testify as to a gift made to her
by another deceased person in which transac-
tion he took no part. Griswold v. Hart, 20o
N. Y. 384, 98 X. E. 918, 42 L. R. A. (X. S.)
320 (1912). But a wife may testify in an
action by her husband for services to a per-
son since deceased. Helsabeck v. Doub, 167
N. C. 205, 83 S. E. 241, L. R. A. 1917 A 1. On
an issue of undue influence one charged with
the undue influence may be asked whether
he had asked the grantor to make a deed to
him. This is not calling for a transaction
with a deceased person but is the opposite as
trying to show that there had been no trans-
action. Coblentz v. Putifer, 87 Kan. 719. 125
Pac. 30, 42 L. R. A. (X. S.) 298 (1912). A
creditor of a party is not interested in the liti-
gation in the sense that he is barred by inter-
est from testifying to services rendered to the
deceased in a suit by his assignee of the claim
where he has taken a note of the assismee in
payment for the assignment of the claim. He
has here only an indirect interest as a cred-
itor and has not that direct property interest
which is necessary to disqualify him. Clen-
dennin v. Clancy, 82 N. J. L 418, 81 Atl. 750,
42 L. R. A. (X. S.) 315 (1911). Conversa-
tions with deceased persons exceptions, see
note, Bender ed., 26 X. Y. 281. When decla-
rations are admissible and when not admissi-
ble as res gestae, see note. Bender, ed., 95 X.
Y. 298. Conversations with deceased persons
bona fide purchasers, see note. Bender, ed.,
124 X. Y. 511. Declarations by one since
deceased, see note, Bender, ed., 12S X. Y. 421.
Transactions with one since deceased, see
note, Bender, ed., loi X. Y. 434. 118 X. Y.
56, 141 X Y. 87, 153 X. Y. 358, 187 X. Y 495.
91. 5 Chamberlayne, Evidence. 3671,
3672.
92. Rogers v. State. 60 Ark. 76, 29 S. W.
894, 31 L. R A 465, 46 Am. St. Rep. 154
(1894) : Baker v. Thompson. 89 Ga. 486, 15
S. E. 644 (1892): Morss v. Morss. 11 Barb.
(X. Y.) 510 (1851) ; 5 Chamb., Ev., 3671,
n. 1.
93. People v. Dohring, 59 X Y. 374 (1874).
94. Id. ; Morss v. Morss, supra : People v.
Miller. 2 Park Cr. (X. Y.) 197 (1854).
95. Pupra, 319: 1 Chamb., Ev.. 575.
96. 5 Chamberlayne, Evidence. 3671.
97. Stipra, 320: 1 Chamb.. Ev.. 582.
98. Supra, 320; 1 Chamb., Ev., 581,
582.
99. State v. Campbell, 73 Kan. 688. 85 Pac.
784. 9 L. R. A. (X. S.) 533 (1906) : Com. v.
Oreen, 126 Pa. 531. 17 Atl 878, 12 Am. St.
Rep. 894 (1888) ; 5 Chamb., Ev., 3672, n. 3.
1158 INCOMPETENCY OF WITNESSES. 928
of the testimony of a witness on the trial. 1 Such a person has also been per-
mitted to testify where he possesses knowledge in respect to the offense charged. 2
1. Com. v. ilead, 12 Gray (Mass.) 167, 71 Gordon v. Com., 9^ Pa. 21b', 37 Am. Rep. 672
Am. Dec. 741 (1858;; State v. Thomas, 99 ( 1879) ; 5 C'hamb., Ev., 3672, n. 4.
Mo. 235, 12 S. W. 643 (1889); State v. 2. State v. McDonald, 73 N. C. 346 (1875).
Brown, 28 Or. 147, 41 Pac. 1042 (1895);
CHAPTER LXIV.
INCOMPETENCY OF WITNESSES; RACE.
Incompetency of witnesses; race, 1159.
1159. [Incompetency of Witnesses] ; Race. 1 There were formerly in some
states due to local prejudice laws excluding the testimony of certain races as
Chinese, 2 Indians 3 and negroes 4 before slavery was abolished but happily
such distinctions are now abolished everywhere.
1. 5 Chamberlayne, Evidence, 3673- See Pumphrey v. State, 84 Neb. 636. 122 N.
3676. W. 19 (1909). Japanese are not " Indiana."
2. People v. Jones, 31 Cal. 565, 573 (1867). 4. Grady v. State, 11 Ga. 253 (1852).
3. People v. Howard, 17 Cal. 63 (1860).
929
CHAPTER LXV.
PRIVILEGED COMMUNICATIONS.
Privileged communications, 1160.
attorney and client; general rule, 1161.
when applied, 1162.
exceptions, 1163.
waiver by client of privilege, 1164.
clergymen, 1165.
husband and wife; general rule, 1166.
physician and patient; privilege is of statutory origin, 1167.
public justice; grand jurors, 1168.
petty or traverse jurors, 1169.
secrets of state, 1170.
1160. Privileged Communications. 1 The law has deemed it advisable, on
grounds of public policy, that a certain class of evidence, known generally as
privileged or confidential communications would be more detrimental to the
interests of society than would the rejection of the evidence. While the pur-
pose of judicial tribunals is the discovery of truth, in all cases, yet, in respect
to communications of such a character, having particular reference to those
between husband and wife and. attorney and client, it has been considered that
such a desire should be subordinated to the maintenance and preservation of
social relations and confidences, the disturbance and destruction of which would
cause greater mischief than the possible exclusion of the truth in some cases.
1161. Attorney and Client; General Rule. 2 One of the two great classes
involved in the application of this rule is that of attorney and client. In all
cases where this relation exists, all communications between a client and his
legal adviser, made for the purpose and in the course of the employment are
regarded as privileged and the rule of exclusion is strictly enforced. 3 The
theory upon which this rule is founded seems to be concerned more with the
interests and administration of justice and the security and protection of the
individual than with the furtherance of the interests of the legal profession. 4
No man would be secure in respect to disclosures which must necessarily be
1. 5 Chamberlayne, Evidence, 3676a. 3. Phillips v. Chase, 201 Mass. 444, 87 N. E.
2. 5 Chamberlayne, Evidence, 3677, 755 (1909).
3678. 4. Greenough v. Gaskell, 1 My. & K. 100
(1833).
930
931
ATTORNEY AND CLIENT.
1102
made under such circumstances; fear, distrust and suspicion would exist on the
part of the client, 5 and in many cases, on this account, concealment respecting
the true situation might result. The attorney laboring under such a disad-
vantage and handicap would frequently be unable to correctly advise his client
as to the proper coursfe to pursue. The consequence would be that much un-
necessary litigation, litigation which an attorney correctly advised as to the facts
would discourage, would be thrust upon the courts.* 5 The discovery of truth
would not be aided, but the contrary result would ensue, thus hindering and
impeding the administration of justice. '
1162. [Attorney and Client]; General Rule; When Applied. 7 The rule
may apply to letters 8 and protects both the attorney and client against dis-
closure. 9 It applies only to attorneys regularly entitled to practice 10 and it
must further appear that the relation of attorney and client existed n although
the payment of a retainer is not essential 12 or present or expected litiga-
tion. 18 The communication must have been made while the relationship ex-
isted 14 and may extend to the attorney's clerk or assistant 15 but the fact that
the relationship has terminated since the communication was made is irnma-
tcrial. 10 The rule extends to writings entrusted to the attorney by the client. 17
5. Wade v. Ridley, 87 Me. 368, 373, 32 Atl.
975 (1895).
6. AIcLaughlin v. Gilmore, 1 111. App. 563,
564 (1878), per Pillsbury, J.^ Attorney's
privilege, see note, Bender, ed., SO X V 402.
Attorney's privilege, see note, 13ender, ed., Ill
X. Y. 251. Communications to counsel privi-
leged, see note, Bender, ed., 18 X. Y. 546.
Privileged communications between attorney
and client, see note, Bender, ed., 128 X. Y.
420. When attorneys may testify, see note,
Bender ed , 131 N Y. 196. Testimony of ad-
missions concerning one learned in profes-
sional capacity, see note. Bender, ed.. 150 N.
Y. 176. Privilege of attorney not to testify,
see note. Bender, ed., 30 X. Y. 330. 343 What
conversations with attorney are not privi-
leged, see note. Bender, ed.. $4 X*. Y 78.
7. 5 Chamberlayne, Evidence, 3679-
3687.
8. State v. Loponio. 85 X. J. L 357. 88 Atl
1045, 49 L R. A. (X. S.) 1017 (1913).
9. The true view seems to be. that commu-
nications which the lawyer is precluded from
disclosing, the client cannot be compelled to
disclose. State v. White, 19 Kan. 445
( 1S77), per TTorton, C. J.
10. That one held himself out as an attor-
ney is not enough to make communications to
him privileged. Md.aughlin v Cilmore. 1 111.
App. 563 (1*78) : Sample v. Frost, 10 Iowa
266 (1859) ; State v. Burkhardt, 7 Ohio Dec.
537 (1878): Schubkagel v. Dierstein, 131 Pa.
St. 46, 18 Atl. 1059 (1889) ; Holman v. Kim-
ball, 22 Vt. 555 (1850).
11. Hoar v. Tilden, 178 Mass. 157, 59 X.
E. 641 (1901).
Letter seeking to Employ Attorney. The
client's privilege extends to written communi-
cations made by him to his attorney and to a
letter seeking to employ an attorney, even
though the letter never reaches the attorney
and he never is employed. An illiterate per-
son may even employ a scrivener for this pur-
pose and the scrivener is barred from testify-
ing as a man has the right to use all proper
methods of communication. State v. Loponio,
85 X. J. L 357, 88 Atl. 1045, 49 L. R. A.
(X. S.) 1017 (1913).
12. Pfeffer v Kling, 171 X. Y. 668, 64 N. E.
1125 (1902), afirminfi 58 App. Div. 179, 68
X. Y Suppl. 641 (1901).
13. Illinois. Rogers v. Daniels, 116 111.
App. 515 (1904).
14. Leitch v. Diamond Nat Bank, 234 Pa.
557, 83 Atl. 41(5 (1912V
15. State v Loponio, 85 X. J. L 357. 88
Atl. 1045. 49 L. R. A. (X. S ) 1017 (1913).
16. Harless v. Harless. 144 Ind. 196, 41
X E. 592 (1895).
17. Selden v. State. 74 Wis 271, 42 N. W.
218, 17 Am. St. Rep. 144 (1889).
1103, 1104
PRIVILEGED COMMUNICATIONS.
932
1163. [Attorney and Client]; General Rule; Exceptions. 18 The privilege
does not extend to information which an attorney did not learn as a result of
his professional employment 1<J or to statements made in the presence of a
third person 20 or overheard by a third person 21 or to statements made by the
attorney with the intention that they be repeated to a third person. 2 - Neither
does the privilege cover communications made in connection with the accom-
plishment of a criminal purpose 23 or where the attorney is employed by both
parties to the transaction. 24 The attorney may be forced to testify to certain
matters which are not regarded as confideuial as the fact of his employment, 25
the nature and reasonable value of his services, 20 the payment of money con-
nected with his client's business, 27 the signature of his client 2S and other
collateral facts 29 like charges made by the client against the attorney. 30
1164. [Attorney and Client] ; Waiver by Client of Privilege. 31 The priv-
ilege is regarded as that of the clients. 32 He alone is the one for whose pro-
tection the rule is enforced, and as the client is the sole one for whose benefit
the rule is invoked so he is the only one who may remove the restriction. He
may, if he desires, waive the benefit of the rule, 33 in which case testimony, other-
wise excluded, may be received.
Papers Accessible to Others. The privi-
lege of an attorney does not apply to papers
delivered to him where the knowledge of their
existence or contents is accessible to others or
the public as in case of a recorded mortgage.
Pearson v. Yoder, 39 Okla. 105. 134 Pac. 421,
48 L. R. A. (X. S.) 334 (1013)'.
18. 5 Chambei layne. Evidence, 3688-
3694.
19. Skellie v. James, 81 Ga. 419, 8 S. E.
607 (1889).
20. People v. Farmer, 194 N. Y. 251, 87 N.
E. 457 (1909).
21. State v. Loponio, 8.1 X. J. L. 357, 360,
88 Atl 104;!, 49 L. K. A. (X. S.) 1017 (1913).
22. Bruce v. Osgood, 113 Ind. 360. 14 X. E.
563 (1887).
23. State v Faulkner. 175 Mo 546, 75 S.
W. 116 (1903).
24. Thompson v. Cashman, 181 Mass. 36,
62 X. E. 976 (1902).
25. Security Loan & T. Co. v. Estudillo, 134
Cal. 166. 66 Pac. 257 (1901). Although an
attorney can ordinarily be required to divulge
the name of his client still where the informa-
tion is asked only for the purpose of incrimi-
nating him the attorney my not "be forced to
answer So where the attorney acted for
certain persons accused of election frauds, he
may not be forced to tell who employed him
to defend them where the only purpose of the
inquiry is to obtain evidence to convict those
who ejnployed him. Ex parte McDonough,
170 Cal. 230, 149 Pac. 566, L. R. A. 1916 C
593 (1915).
26. Chamberlain v. Rodgers, 79 Mich. 219,
44 X. W. 508 (1890).
27. Ex parte Gfeller, 178 Mo. 248, 77 S. W.
552 (1903).
28. " If he knew nothing but what his client
had communicated to him, he could not be
compelled to disclose that; but if he became
acquainted with his client's signature, in any
other manner, though it was subsequent to his
retainer, he was bound to answer, for an
attorney and counsel may be questioned, as
to a collateral fact within his knowledge, or
as to a fact which he may know, without
being entrusted with it as an attorney in the
cause" Johnson v. Daverne. 19 Johns. (X.
Y.) 1374, 136. 10 Am. Dec. 198 (1821), per
Spencer, C. J.
29. Funk v. Mohr, 185 111. 395. 57 N. E.
2 ( 1 900 ) .
30. Laflin v. Herrington, ] Black (U. S.)
3-26, 17 L. ed. 45 (18(51): Smith v. Guerre
(Te\. Civ. App. 1913). 159 S. \V. 417.
31. 5 Chamberlayne. Evidence, 3695.
32. Passmore v. Passmore. 50 Mich. 626, 16
X. W. 170. 45 Am. Rep. 62 t 1883).
33. Phillips v. Chase, 201 Mass. 444, 87 N.
E. 755 (1909).
933 GLEBGYMEN. 1165,1166
In case two or more persons are concerned in the communications made to
an attorney it seems that one alone cannot waive so far as their mutual inter-
ests are involved. 34
1165. Clergymen. 35 At the common law although there was much endeavor
to force a recognition of confessions to priests or spiritual advisers as being-
privileged and therefore, like communications between attorney and client and
husband aud wife, not subject to disclosure, the courts did not give recognition
to this view. 36 In many jurisdictions, however, this situation has been changed
by statute, an ordinary provision being that no clergyman or priest shall re-
veal any "' confession made to him in his professional character, in the course
of discipline enjoined by the church to which he belongs." Under such a stat-
ute it is not enough to render the communication privileged that it is made to
a clergyman or priest. If it is not made to such a person in his professional
character and because enjoined by the rules of discipline or practice of such
religious denomination the privilege does not attach. 37
1166. Husband and Wife; General Rule. 38 Communications between hus-
band and wife were early recognized as privileged and neither could be com-
pelled to disclose what took place between them. 39 The theory upon which
the rule was founded was that the confidence, peace and harmony which should
exist between spouses would be seriously disturbed if testimony as to such
matters should be received and that the exclusion of such evidence would tend
34. Herman v. Schlesinger. 114 Wis. 382, 39. Wetzel v. Firebaugh, 251 111. 190, 95
90 X. W. 460, 91 Am. St. Rep. 922 .1902). X. E. 1085 (1911).
Waiver of privilege, see note, Bender, ed., 148 To Show Unsound Mind. In a will con-
N. Y. 97. test a wife cannot testify to words and acts of
35. 5 Chamberlayne. Evidence, 3696. the husband in her presence when they were
36. "'The cases of privilege are confined to alone to show that he was not of sound mind
solicitors and their clients: and stewards, as these are privileged communications,
parents, medical attendants, clergymen and Whitehead v. Kirk, 104 Miss. 776, 61 So. 737,
persons in the most closely confidential rela- 62 So. 432, 51 L. R. A. (X. S ) 187 (1913).
tion are bound to disclose communications Effect of Statute allowing 1 Testimony
made to them." Greenlaw v. King, 1 Beav. against each other. Even a statute making
137, 145 (1838), per Langdale, M. R. a husband or wife competent to testify
37. Alford v. Johnson, 103 Ark. 236. 238, against each other in a criminal case does
146 S W. 516 ( 1912), per Frauenthal. J. not render confidential communications be-
Statements to Church Session. A statute tween them competent. So a letter written
excluding confidential communications to a by a husband to his wife disclosing his crim-
Minister of the Gospel covers a statement inal relations with her sister is not admis-
made by a member of a Presbyterian Church sible against him in a bastardy process. Mc-
before the Church session consisting of the Cormick v. State. 135 Tenn. 218, 186 S. W.
pastor and the ruling elders. As the com- 95. L. R. A. 1916 F. 382 (1916) and note,
munication is privileged it is not available for Waiver. Where a husband or wife is a
impeachment of the party who made it. defendant in a criminal case the privilege as
Reutkemeier v Xolte, 179 Iowa 342, 161 N. to confidential communications between them
W 290. L. R. A. 1917 D 273 (1917). is and may be waived by calling the other
38. 5 Chamberlayne, Evidence, 3697- spouse as a witness. Hampton v. State, 7
3700. Okla. Crim. Rep. 291, 123 Pac. 571, 40 L. R.
A. (N. S.) 43 (1912).
1167
PRIVILEGED COMMUNICATIONS.
934
to better preserve and protect these most necessary essentials to the permanency
of the family circle, and therefore to the betterment of society. 40 It was the
belief that greater mischief would result from the admission of such evidence
than would ensue from its exclusion. 41 In other words the rule of exclusion
was one of public policy. 4 -
\\'here the information is not a result of marital confidence but is obtained
from some outside source, it is held that the rule does not apply. 43
Communications made after the termination of the relationship may be
used 44 although the termination of the marital relation through death 45 or
divorce 4ti after the communication is made does not affect the application of
the rule. If the communication was made in the presence of a third person, 47
even a child of age to understand 48 or an eavesdropper, 49 it is not regarded as
a private communication and hence is not privileged. The rule covers letters
between husband and wife 50 as well as oral communications. This privilege
is commonly covered by statutes. 51
1167. Physician and Patient; Privilege is of Statutory Origin. 52 At com-
mon law communications between physician and patient, were not regarded in
the same light as those between attorney and client, 53 although the advisibility
47. People v. Lewis, 62 Hun 622, 16 X. Y.
Suppl. 881 (1891), affirmed 136 X. Y. 633, 32
X. E. 1014 (1892).
48. Lyon v. Prouty, 154 Mass. 488, 28 X.
E. 908 (1891).
49. Com. v. (Jriffin, 110 Mass. 181 (1872);
State v. Center, 35 Vt. 378 (1862).
50. Wilkerson v. State, 91 Ga. 729, 737,
17 S. E. 990 (1893), though husband's letter
was delivered by wife to another.
51. Com. v. Cronin, 185 Mass. 96, 69 X. E.
1065 (1904).
Practical Suggestions. This harsh rule
can sometimes be avoided by clever counsel by
the use of the negative form of questions.
For example the editor has in mind a case
where the husband claimed that title to cer-
tain property was taken in his name as a gift
to him and the wife claimed he had taken it
in bis name fraudulently using her money to
buy it and the counsel for the wife put in
her story by asking her whether she had ever
told her husband that she was making this gift
to him, etc. Here the wife could not of course
be asked what she had said to her husband
about the matter no other person being pres-
ent but the effect of the conversation was
still put in the record in this way.
52. .1 Chamberlayne, Evidence, 3701-
3705a.
53. Banigan v. Banigan, 26 R. I. 454, 59
40. State v. Brittain. 117 X. C. 783, 23 S.
E. 433 (1895).
41. Sexton v. Sexton, 129 Iowa 487, 489,
105 X. VV. 314, 2 L. R. A. (X. S. ) 708 (1905).
42. Fearn v. Postlethwaite, 240 111. 626, 88
N. E. 10o7 (1909).
43. Gray v. Cole, 5 Har. (Del ) 448, 419
(1853), per the Court.
44. The privilege does not apply where the
husband and wife have separated as where the
husband writes the wife a threatening letter.
McXamara v. McXamara, 99 Xeb. 9, 154
X. \V. 8.18, L. R. A. 1916 B 1272 (1915).
Communications between husband and wife
after they are divorced are not privileged, al-
though the divorce is afterwards set aside as
being fraudulent. Spearman v. State (Tex.
Crim. Rep 1012), 152 S. W. 915. 44 L. R.
A. (X. S.) 243. Communications by a hus-
band to his wife testamentary in nature are
admissible in evidence when found by the
wife only after his suicide as then they are
not communications by one to the other dur-
ing marriage as they were received after the
death of one of the parties. \Yhitford v.
Xorth State Life Ins. Co., 163 X. C. 223, 79
S. E. 501.
45. Stephens v. Collison, 256 111. 238, 99
X. E. 914 (1913).
46. Derham v. Derham, 125 Mich. 109, 83
N. W. 1005 (1900).
935
PHYSICIAN AXD PATIENT.
116'
of extending the privilege to this class of eases seems not to have been entirely
in disfavor. 54 In fact the view, that such communications should be excluded,
began to spread among the judiciary and members of the legal profession, re-
sulting finally in enactments by legislative bodies, making communications be-
tween a physician and his patient privileged/' 5
The privilege created under such statutes covers any information received by
the physician as a result of the relation which he has acquired either from oral
statements of the patient or as a result of examinations or observations made by
him. 56 The privilege is confined to one who has the right to act as a physi-
cian 5T though he be in the employ of another 58 and covers statements made to
a physician by a patient for the purpose of enabling him to prescribe 59 and
the privilege also attaches to statements made by a physician to a patient as
to the nature of his disease 60 and its treatment, 61 and includes the mental
condition of the patient. 02 Statements made when the relation did not exist
are not privileged. 03 A physician may be forced to testify to the fact of his
employment 64 and his attendance, 65 to affidavits of the cause of death tiled
with the proper authorities, 66 to examinations pursuant to the order of the
court 7 or at the request of both parties. 68 The statute cannot be invoked to
Atl. 313 (1904). A physician who discloses
on the stand when ordered by the court con-
fidential communications of his patient is not
liable to civil suit by his patient. Smith v.
Driscoll, 94 Wash. 441, 162 Pac. 572, L. R.
A. 1917 C 1128 (1917). Physician's privi-
lege, see note, Bender, ed., 103 X. Y. 587.
Admissibility of evidence of examining physi-
cian, see note. Bender, ed., 137 X. Y. 582.
54. Wilson v. . Rastall, 4 T. R. 753, 760
(1792).
55. Ansdenmoore v. Holzback. 88 Ohio St.
625, 106 X. E. 41 (1914).
56. Rose v. Supreme Court. 126 Mich. 577,
85 N. W. 1073 (1901).
Autopsy by Attending Physician. Under
a statute making communications to a phy-
sician privileged an attending physician who
performs an autopsy immediately after death
may not tell of the results of the autopsy and
his conclusions therefrom as this would take
away from the privilege as the conclusions
must have been based in part on what he had
learned as the attending physician. Thomas
v. Byron. 16S Mich. 593. 134 X. W. 1021, 38
L. R. A. (X. S.) 1186 (1912).
57. Wiel v. Cowles, 45 Hun (X. Y.) 307
(1887) ; Head Camp v. Loehrer, 17 Colo. App.
247, 68 Pac. 136 (1902).
58. Battis v. Chicago R. T. & P. Ry. Co..
124 Iowa 623, 100 X. W. 543 (1904).
59. Briggs v. Briggs, 20 Mich. 34 (1874).
60. Hammerstein v. Hammerstein, 74 Misc.
R. 567, 134 X. Y. Suppl. 473 (1912).
61. Hammerstein v. Hammerstein, 74 Misc.
R. 567, 134 N. Y. Suppl. 473 (1912).
62. Shuman v. Supreme Lodge. 110 Iowa
480, 81 X. W. 717 (1900).
63. Herries v. Waterloo, 114 Iowa 374, 86
X. W. 306 (1901).
64. Haughton v. .Etna Life Ins. Co., 165
Ind. 32, 73 X. E. 592 (1905).
65. Cooler v. Foltz, 85 Mich. 47, 48 X. W.
176 (1896).
66. Robinson v. Supreme Commandery, 77
App. Div. 215, 79 X. Y. Suppl. 13 (1902),
affirmed 177 X. Y. 564. 69 X. E. 1130 (1904).
67. People v. Glover, 71 Mich. 303, 3S X.
W. 874 (1888) (examination to determine
physical condition of one charged with rape) ;
People v. Sliney. 137 X. Y. 570, 33 X. E. 150
(1893) (examination of prisoner as to san-
ity). Where the plaintiff is ordered by the
court to submit to a physical examination
any statements he makes in answer to the
defendant's physician are deemed privileged
according to the weight of aiithoritv. It is
argued that this is an abuse of authority to
force the plaintiff to submit to examination
and thus elicitate from him statements which
may be filtered as admissions through an
irresponsible witness instead of using the
1168
PRIVILEGED COMMUXICAT i o N :
936
protect crime 69 as in abortion cases 70 and the privilege may be waived by
the patient, 71 as where he testifies in regard to the matter 72 or calls on the
physician to do so. 73
1168. Public Justice; Grand Jurors. 74 In the interest of public justice
there are certain things which are considered as necessary to protect from dis-
closure. Thus in the case of proceedings before the grand jury it is deemed
that the administration of public justice may be better secured by preventing
ample legal process available to secure the
testimony in open court. In a recent case the
court does not decide this question but holds
that a statement made voluntarily by the wit-
ness to the doctor may be put in evidence.
McGuire v. Chicago & A. R. Co. (Mo. 1915),
178 S. W. 79, L. R. A. 1915 F 888 and note
68. Clark v. State, 8 Kan. App. 782, 61
Pac. 814 (1899).
69. People v. West, 106 Cal. 89, 39 Pac.
207 (1895).
70. Seifert v. State, 160 Ind. 464, 67 N. E.
100, 98 Am. St. Rep. 340 (1903); State v.
Smith, 99 Iowa 26, 68 N. W. 428, 61 Am. St.
Rep. 219 (1896); McKenzie v. Banks, 94
Minn. 496, 103 X. W. 497 (1905)
71. Epstein v. Pennsylvania R. Co., 250 Mo.
1, 156 S. W. 699 (1913). Waiver of physi-
cian's privilege, see note, Bender, ed., 118 N.
Y. 94, 188 X. Y. 407, 193 N. Y. 11.
Provision in Insurance Policy. Where an
insurance policy provides that the attending
physician may testify this is a waiver of the
privilege which binds the beneficiary. Xa-
tional Unity Ass'n. v. McCall, 103 Ark. 201,
146 S. W. 125, 48 L. R. A. (N. S.) 418 (1912).
Waiver at former Trial. The mere fact
that testimony has been given without objec-
tion at a former trial does not necessarily
constitute a waiver of the claim that it is
privileged at a later trial of the same case
especially where the party has not been mis-
led by it. Maryland Casualty Co. v. Maloney,
119 Ark. 434, 178 S. W. 387, L. R. A. 1916 A
519 (1915).
72. City of Tulsa v. Wicker, 42 Okla. 539,
141 Pac. 963 (1914); Fulson-Morris Coal &
M. Co. v. Mitchell, 37 Okla. 575, 132 Pac.
1103 (1913). Under a statute declaring that
a physician cannot be examined as to com-
munications made to him by his patient the
latter does not waive the privilege by testify-
ing to his own condition at the time. Ari-
zona & New Mexico R. Co. v. Clark, 235 U. S.
669, 35 Sup. Ct. Rep. 210, L. R. A. 1915 C
834 (1915).
Where Physician is Claimed to have De-
frauded Plaintiff. Where the insured
claims that she was induced to settle a claim
on an insurance policy by false and fraudu-
lent statements of the attending physician
she has put in issue the cause of death and
has waived her statutory privilege of object-
ing to the testimony of the physician. Na-
tional Unity Assn. v. McCall, 103 Ark. 201,
146 S. W. 125, 48 L. R. A. (N. S.) 418
(1912).
73. Speck v. International Ry. Co., 133 App.
Div. 802, 118 N. Y. Suppl. 71 (1909).
Testimony by another Doctor. According
to the decided weight of authority the waiv-
ing of the privilege by the plaintiff calling
one of his physicians does not waive his right
to object to the testimony of any other physi-
cians. Jones v. Caldwell, 20 Idaho 5, 116
Pac. 110, 48 L. R. A. (N. S.) 119 (1911).
The fact that the plaintiff puts on a physi-
cian who testifies as to an examination h
made just after the injury does not waive the
privilege as to examination by another phy-
sician before the injury. The court lays
down the rule that waiver only takes place
as to another doctor who examined in com-
pany with the doctor who testifies. Mays v.
New Amsterdam Casualty Co., 40 App. D. C.
249, 46 L. R. A. (N. S.) 1108 (1913). A pa-
tient waives his privilege by going on the
stand and telling his ailments and putting one
physician on the stand also and he cannot
then object to other doctors who attended him
telling what they know, although the privi-
lege arises under a statute as the waiver
may be engrafted on the statute. The point
is that the privilege if secrecy applies to his
physical condition and when he voluntarily
tells this he should then not object to the
whole truth being known. Epstein v. Penn-
sylvania R. Co., 250 Mo. 1, lf>6 S. W. 699,
48 L. R. A. (N. S.) 394 (1913).
74. 5 Chamberlayne, Evidence, 3706.
937 PUBLIC JUSTICE. 1169, 1170
any inquiry in regard thereto, 75 except that it may be shown by statute in some
states that a witness testified differently before the grand jury than at the
later trial. 76
1169. [Public Justice]; Petty or Traverse Jurors. 77 Much the same situa-
tion exists, where it is de-sired to introduce testimony of petty or traverse
jurors, as to some mistake, irregularity or misbehavior on the part of the jury,
for the purpose of impeaching their verdict, it being generally decided that
such testimony will be excluded. li!
1170. Secrets of State. 79 In the case of matters relating to affairs of state,
it is clearly apparent that there are many communications which it is essential
should be protected from disclosure. While the discovery of truth, as an aid
in the administration of justice, is particularly to be desired and sought for, yet
the proper administration of public affairs, both state and national, particu-
larly the latter, require that often times the executive and heads of depart-
ments should not be hampered by any interference from the courts. 80 It is,
therefore, deemed advisable that, whenever, the executive departments consider
that certain matters or communications should not be divulged, their opinion
or decision shall be regarded as binding upon the courts and testimony concern-
ing them will not be compelled. 81
75. State v. Wood, 53 X. H. 484 (1873). parol evidence may be given to show that a
76. Jenkins v. State, 35 Fla. 737, 18 So. former recovery was had, not upon the merits,
182, 48 Am. St. Rep. 267 ( 1805) : Pritchett but upon some technical objection to the form
v. Frisby, 112 Ky. 629, 23 Ky. L. Rep. 2035, of action or otherwise." Follansbee v.
66 S. W. 503 (1002): State v. Thomas, 99 Walker, 74 Pa. St. 306, 310 (1873), per Shars-
Mo. 235, 12 S. W. 643 (1S89). wood, J. See Heffron v. Gallupe, 55 Me. 563
77. 5 Chamberlayne, Evidence, 3707. (1867).
78. Smith v. Smith, 50 X. H. 212 (1870). 79. 5 Chamberlayne, Evidence, 3708.
Affidavits of jurymen as to facts as that a 80. Totten v. United States, 92 U. S. 105,
verdict was reached by lot [Wright v. Illinois 107, 23 L. ed. 605 (1875).
& Miss. Teleg. Co., 20 Iowa 105. 210 (1866)], 81. Hartranft's Appeal, 85 Pa. St. 433
or as to what was considered by the jury in (1S77); Gray v. Pentland, 2 S. & P. 23
reaching a verdict have been received. (1815).
" Whenever it does not contradict the record,
CHAPTER LXVI.
EXAMINATION OF WITNESSES.
Examination of witnesses, 1171.
direct examination; leading questions, 1172.
use of memoranda to refresh memory, 11V3.
cross-examination, 1 1 74.
scope of, 1175.
redirect examination, 1176.
examination subsequent to redirect ,.117 '7.
recalling of witnesses, 1178.
privilege as to self-incrimination, 1179.
1171. Examination of Witnesses. 1 In the use of witnesses, as a media of
proof, the administrative power of the presiding judge, stands out most clearly.
It is here that his ability to work out by the use of reason the results of sub-
stantial justice, in connection with the rules of law substantive or procedural,
is greatly increased. Having in view the object of judicial administration, the
discovery of truth as an aid to the attainment of justice, much rests in the
exercise of sound reason by the presiding judge or as it is frequently termed
the exercise of sound discretion by him. So many and varied are the circum-
stances developed in the case of different witnesses, having regard to their
characters, intelligence, and memory, the effect of bias upon their minds and
other similar factors that the court is continually confronted with different
situations in administering the rules of evidence. In each and every instance
the judicial mind must be imbued with the thoughts of discovering the truth
and of thus securing substantial justice to the parties and for this purpose the
presiding judge must in all cases endeavor, by the exercise of sound reason in
the proper administration of the rules of evidence, to attain these objects.
1172. Direct Examination; Leading Questions. 2 An elementarv rule of evi-
dence, in the examination of witnesses, is that leading questions will not be
allowed. 3 As to what is a leading question is often a matter of much nicety.
It may be stated, generally, however, that any question which contains in it a
suggestion to the witness of the answer desired falls within the prohibition. 4
1. 5 Chamberlayne, Evidence, 3700, the witness how to answer on material points,
or puts into his mouth words to be echoed
2. o Chamberlayne, Evidence. 3711- back as was done here, or plainly suggests
the answer which the party wishes to get from
3. Kankakee v. Illinois Cent R. Co., 258 him." Page v. Parker, 40 N H 47, 63
111. 368, 101 N. E. 502 (1013). ( I860), per Fowler, J.
4. "A question is leading which instructs
938
939 REFRESH MEMORY. 1173, 1174
The presiding judge will, in all cases, take care to prevent any question being
asked of a witness which is so framed or put to him as to indicate the particular
answer which is wanted.
The fact that a question may be answered by " yes " or " no " does not stamp
it as necessarily leading, 5 while a question put in the alternative form as
" whether or not " is usually not regarded as leading. 6 Whether a question
is leading is peculiarly a question for the presiding judge. 7 A question which
assumes the existence of facts which have not been established is ordinarily
regarded as leading s but not where such facts are admitted to exist. 9 Leading
questions may be put when they are preliminary to the matters in controversy
to expedite the trial. 10
The court may allow the use of leading questions where a person's memory
is exhausted concerning a matter u or where the witness is clearly hostile to
the party producing him 12 or in the case of children, 13 or feeble-minded per-
sons, 14 illiterates ir> or foreigners with a limited knowledge of the English
language. 16
1173. Use of Memoranda to Refresh Memory. 17 The mind of a witness
will frequently not contain a present recollection of some past event or transac-
tion. Where such a situation arises the presiding judge may permit the use
of memoranda by a witness for the purpose of refreshing his mind and reviving
his recollection.
1174. Cross Examination; Right of. 18 The right to cross examine a wit-
ness, after he has been examined in chief, is one which is undisputed, 19 and if,
5. Southern Cotton Oil Co. v. Campbell. 106 13. State v. Drake, 128 Iowa 539, 105 X.
Ark. 379, 153 S. W. 256 (1913) ; Coogler v. W. 54 (1906^
Rhodes, 38 Fla. 240, 21 So. 109, 56 Am. St. 14. Strnad v. William Messer Co., 142 X.
Rep. 170 (1897). Y. Suppl. 314 (1913) ; Armstead v. State, 22
6, 'Wilson v McCullough. 23 Pa. St. 440, Tex. App. 51, 2 S. W. 627 (1886).
62 Am. Deo. 347 (1854). 15. People v. Bernor, 115 Mich. 692, 74 X.
7. Com v. Dorr, 216 Mass. 314, 103 X. E. W. 184 (1898).
902 (1914). 16. Christensen v. Thompson, 123 Iowa 717,
8. Ohio Oil Co. v. Detamore, 165 Ind. 243, 99 X. W. 591 (1904).
73 X. E. 906 (1905). Practical Suggestion. Witnesses should
9. Erie & P. Despatch v. Cecil, 112 111. 180 be cautioned to tell not what they thought or
(1884) ; Willey v. Portsmouth. 35 X. H. 303 inferred but what they saw or heard, and for
(1857); Hays v. State (Tex. Cr. App. 1892), this reason it is usually best to ask them
20 S. W. 361. shortly, "Tell the court what talk you heard,
10. " If the questions relate to introductory telling the conversation as near as you can.
matter and be designed to lead the witness stating just what each party said," or. " Tell
with the more expedition to what is material the court what you actually saw with your
to the issue, it is captious to object to it. even own eyes."
if it be leading." People v Mather. 4 Wend. 17. 5 Chamberlayne, Evidence, 3720. See
(X. Y.) 229, 247, 21 Am. Dec. 122 (1830), supra, 1098. 5 Chamb., Ev., 3506.
per Marcy, Sen. 18. 5 Chamberlayne, Evidence. 3721.
11. Warren v. W T arren, 33 R. I 71, 80 Atl. 19. Graham v. Larimer, 83 Cal. 173, 23 Pac.
593 (1911). 286 (1890).
12. Wiener v. Mayer, 162 App. Div. 142,
147 X. Y. Suppl. 289 (1914).
1175 EXAMINATION OF WITNESSES. 940
after he has testified on direct examination, no opportunity therefor is afforded
as in case of his death 2 " or illness, 21 or where a party to the proceeding refuses
to answer, 22 or from some other cause 23 his testimony will be rejected. Tin-
mere appearance and swearing of a witness, however, when 110 testimony is
gm-n by him, is frequently not regarded as conferring any such right, 24 and
this result of course follows in those jurisdictions where the cross-examination
of a witness is limited by the direct examination.
1175. [Cross Examination] ; Scope of. 25 The question whether the cross-
examination of a witness must be limited to those matters concerning which he
has been examined in chief or may extend to any facts in the case which are
relevant and may be a part of the opponent's case is one upon which the de-
cisions are not uniform. The great weight of authority, however, although
there are several decisions to the contrary, 26 supports the doctrine that it is so
limited and that if a party desires to examine a witness as to any other matter
he can only do so by calling him as his own witness at the proper time. 27 This
rule is not generally construed as meaning that a witness can be cross-exam-
ined as to a particular subject only to the extent that it has been gone into on
the direct examination, for if a matter is touched upon there, as for instance
part of a conversation or transaction, a legitimate subject for cross-examination
is thus presented in so far as the matter may constitute a unity. 28 It is often
difficult to determine just how far the cross-examination of a witness may pro-
ceed before the limit has been reached or passed. In each case the question
must be determined by the presiding judge in the exercise of sound discre-
tion. 29
The use of leading questions is always allowed in cross-examination 30 unless
it appears that the witness is friendly to the cross-examining counsel. 31 The
cross-examination may always bring out matters not fully disclosed by the
20. Sperry v. Moore's Estate, 42 Mich. 353, Compare. Scott v. McCann, 76 Md. 47, 24
4 N. W. 13 (1880) ; People v. Cole, 43 N. Y. Atl. 536 (1892).
508 (1871). 24. Harris v. Quincy, O. & K. C. R. Co., 115
21. Cole v. People, 2 Lans. (N. Y.) 370 Mo. App. 527, 91 S. W. 1010 (1906).
(I860). 25. 5 Chamberlayne, Evidence, 3722-
Effect of Redirect Examination. The tea- 3727.
timony of a witness may be received although 26. People v. Pindar, 210 N. Y. 191, 104
after thorough cross-examination she is fur- N. E. 133 (1914).
ther examined redirectly and then is too ill 27. People v. Darr, 262 111. 202, 104 N. E.
for further cross-examination as the party 389 (1914).
has already fully availed himself of his right 28. De Haven v. De Haven, 77 Ind. 236,
of cross-examination. State v. Duvall, 135 239 (1881).
La. 710, 65 S. W. 904, L. R. A. 1916 E 1264 29. Thornton v. Hook, 36 Cal. 223, 227
^ ni 4). (1868).
22. Howard v. Chamberlain, 64 Ga. 684 30. People v. Coneidine, 105 Mich. 149, 63
(1880); Heath v. Waters, 40 Mich. 457 N. W. 196 (1895).
31. Moody v. Rowell, 17 Pick. (Mass.) 490
23. People v. Cole, 43 N. Y. 508- (1871). (1835).
941 REDIRECT. 1176, 1177
direct examination 32 but the extent of cross-examination as to collateral or
irrelevant facts is for the determination of the presiding judge. 33 Questions
which assume the existence of facts which have not been proved will be ex-
cluded. 34
1176. Redirect Examination. 35 After the cross-examination of a witness
has been completed the right of the party by whom he was called to re-examine
him within proper limits, is recognized. It is stated generally that no right
exists to introduce new matter at this stage, 30 as it is considered that the party
has had full opportunity, on the direct examination, to bring out all facts which
are material and relevant to his contention. The real purpose of the redirect
examination is to obtain an explanation 3T of statements made on the cross-
examination which tend to create doubts and to contradict matters drawn forth
on the direct examination. Thus it is permissible to show the motive,
provocation, or reason which influenced the witness in respect to certain state-
ments made by him, 38 or to further interrogate him as to new matter thus
disclosed, 39 as in case of a conversation or transaction to bring it out in full. 40
Leading questions will ordinarily be excluded on redirect examination. 41
This, however, is left largely to the presiding judge to determine as a matter
of sound administration. 42
1177. Examinations Subsequent to Re-direct. 43 After the re-direct exami-
nation of a witness, a recross-examinatiou is, in some cases, permitted, 44 as
where new matter has been gone into on the former. 45 Whether such a priv-
32. Com. v. St. Pierre, 175 Mass. 48, 55 35. 5 Chamberlayne, Evidence. 3728.
N. E. 482 (1899). 36. Finley v. West Chicago St. R. Co., 90
33. Drexler v. Borough of Braddock, 238 111. App. 368 (1900); Struth v. Decker, 100
Pa. 376, 86 Atl. 272 (1913). Md. 368, 59 Atl. 727 (1905).
34. Balswic v. Balswic, 179 111. App. 118 37. Musselman Grocer Co. v. Casler, 138
(1913). Mich. 24, 100 X. W. 997 (1904).
Practical Suggestions. It is commonly 38. Grabowski v. State, 126 Wis. 447, 105
remarked by those familiar with the courts X. W. 805 ( 1905 ) .
that most cross-examinations hurt the side 39. People v. Robinson, 135 Mich. 511, 98
that does the cross-examining and strengthen X. W 12 (1904).
the witness. One reason is that most lawyers 40. Chicago City Ry. Co. v. Lowitz, 119 111.
never learn the danger of haphazard ques- App. 300. affd. 218 111. 24, 75 X. E. 755
tions. Mr. Wellman's wonderful book on the ( 1905 I .
art of Cross-examination might be compressed 41. Sager v. Samson Min. Co. (Mo. App.
in the single injunction, " Never attack a wit- 1914), 162 S. W. 762: Anderson v. Berrum.
ness unless you know the facts which will 36 Xev. 463, 136 Pac. 973 (1914): Harvey v.
injure him and when you have brought out State, 35 Tex. Cr. 545, 34 S. W. 623 (1896).
these facts then stop." Attorneys must re- 42. Mann v. State, 134 Ala. 1, 32 So. 704
member that witnesses are often intelligent (1902): Hess v. Com. (Ky. 1887), 5 S. W.
and that by the time the attorney has gone 751. See Gilbert v. Sage, 57 X. Y. 639
very far with his cross-examination the wit- (1874).
ness has a bias against him and will take any 43. 5 Chamberlayne, Evidence, 3729.
opportunity to bring in something to injure 44. State v. Haab, 105 La. 230, 29 So. 725
the side of the cross-examiner. The wise law- (1901).
yer never gives the witness this opportunity. 45. Wood v. McGuire, 17 Ga. 303 (1855);
1178,1179 EXAMINATION OF WITNESSES. 9-12
ilege will be accorded and, if so, the extent to which the examination may go
is in each case a question for the presiding judge to determine. If he is of
opinion that no useful result will ensue he may refuse to permit a recross-exam-
ination, or, after it has been entered upon, to allow its continuance. 46
An examination in sufrebuttal may likewise be allowed by the presiding
judge where he may deem it necessary in the interests of justice. 47
1178. Recalling of Witnesses. 48 Whether a witness, who has been exam-
ined, may be recalled is a matter which rests largely with the presiding judge.
If he deems it advisable, as an aid in eliciting the truth and, therefore, as tend-
ing to the furtherance of justice, he will permit such a course to be pursued. 49
1179. Privilege as to Self-Incrimination. 50 The doctrine which protects a
witness from self-incrimination permits him in any proceeding, civil or crim-
inal, to decline to answer any question which would expose him, or tend to ex-
pose him, to a criminal prosecution. 51 It is not essential, in order for a wit-
ness to avail himself of the privilege, that the answer might of itself be sufficient
to have this result. If it should happen that the fact concerning which the
question relates may be only a link in a chain of circumstances, or one of a
series of acts which as a whole, would produce this result he may refuse to
answer.
He may also claim the privilege where the answer might subject him to
a penalty or forfeiture 53 or, in some states might degrade him 54 but not
simply where the answer may result in pecuniary loss 55 or civil liability. 56
The privilege extends to writings. 57
The court may, 58 but need not, 59 inform the witness of his privilege. The
privilege is personal to the witness and can be invoked only by him and may
be terminated by waiver, 61 as where the witness testifies, 62 or by operation of
People v. Detroit Post & T. Co., 54 Mich. 457, Dec. 340 (1848). Contra: Waters v. West
20 X. W. 528 (1884) ; State v. Pyscher, 170 Chicago St. R. Co., 101 111. App. 265 (1902).
Mo. 140, 77 S. W. 836 (1903). 55. La Bourgogne, 104 Fed. 823 (1900).
46. Com. v. Nelson, 180 Mass. 83, 61 N. E. 56. Xeally v. Ambrose. 21 Pick. 185 (1838).
57. Ballman v. Fogin. 200 U. S. 186, 50 L.
47. Goodyear Rubber Co. v. Scott Co., 96 ed. 433, 26 S. Ct. 212 (1906)
Ala. 439, 11 So. 370 (1892). 58. People v. Priori, 164 X. Y. 459, 58 N.
48. 5 Chamberlayne, Evidence, 3730, E. 668 (1900).
59. Bolen v. People, 184 111. 338, 56 N. E.
49. Wagner v. State, 119 Md. 559, 87 Atl. 408 (1900).
60. Moser. In re, 138 Mich. 302, 101 X. W.
50. 5 Chamberlayne, Evidence, 3732- 588, 11 Detroit Leg. 593 (1904).
. 61. Evans v. O'Connor, 174 Mass. 287, 54
51. Com. v. Phoenix Hotel Co., 157 Ky. 180, X. K 557. 75 Am. St. Rep 316 (1S99)
162 S. W. 823 (1014). 62. People v. Roser.neimer. 209 X. Y 115,
52. Ford v. State, 29 Ind. 541, 95 Am. Dec. 102 X. E. 530. 46 L. R. A. (X. S.) 977 (1913).
When the defendant takes the stand the state
53. Oodsden v. Woodward, 108 X. Y. 242, may cross-examine him and also comment on
his failure to deny or explain damaging evi-
54. Lohman v. People, 1 X. Y. 379, 49 Am. dence against him. State v. Larkin, 250 Mo.
943 SELF-!N CRIMINATION. 1179
law as where prosecution for the crime is barred by limitations 63 or by statutes
granting immunity to witnesses from criminal prosecution for any matter to
which their testimony may relate. 64 The repeal of such an immunity statute
does not deprive him of the immunity it afforded. 65
218, 257 S. VV. 600, 46 L. K. A. (N. S.) 13 64. People v. Court of General Sessions,
(1913). 179 X. Y. 594, 72 X. E. 1148 (1904).
63. Manchester & L. R. R. v. Concord R. R., 65. Cameron v. U. S., 231 U. S. 710, 34 S.
66 N. H. 100, 20 Atl. 383, 49 Am. St. Rep. Ct. 244, 58 L. ed. 448 (1914).
582, 9 L. R. A. 689 (1889).
.
CHAPTER LXVII.
IMPEACHMENT OF WITNESSES.
Impeachment of witnesses; application of maxim " falso in uno falsus in
omnibus," 1180.
right to impeach, 1181.
one's own witness, 1182.
opponent's witness; character, 1183.
bias or interest, 1184.
contradictory statements, 1185.
1180. Application of Maxim " Falsus in Uno, Falsus in Omnibus." l The
maxim " falsus in uno, falsus in omnibus " is frequently called to the attention
of juries, as bearing upon the weight which is to be given to the testimony of a
witness who has testified falsely in one or more particulars. 2 In some cases
it is said that where such a situation exists the testimony should be rejected as
a whole and instructions to this effect have been sustained. 3 Such a doctrine,
however, is not favored, 4 it being considered that the maxim is to be applied
by the jury, 5 or by the judge when acting without a jury 6 according to the
circumstances of the case. The generally accepted view is that the mere fact
of a witness having sworn falsely in one respect is not of itself, a reason for
the rejection of his entire testimony. The jury may reject that which is shown
to be false and accept the remainder, or they may reject it all.
1181. Right to Impeach. 7 After the examination of a witness the adver-
sary of the party calling him is entitled to impeach his credit for the purpose
of affecting the weight of his testimony with the jury. This may be done either
by the testimony of other witnesses or by the cross-examination of the witness
himself, the object being to show that his testimony is, either in part or in
whole, discredited.
1182. One's Own Witness.* It i s stated as a general rule that a party will
not be permitted to impeach his own witness. 9 The courts in their decisions
1. 5 Chamherlayne. Evidence. 3741. 5. Galloway v. Com.. 5 Ky. L. Rep. 213
2. \\eijrel v. Weigel, 60 N. J. Eq. 322, 47 (1883).
Atl. 183 H900). 6. Axiom Min. Co. v. White. 10 S. D. 198,
3. Crabtree v. Hagenbaugh, 25 111 233, 79 72 X. W. 462 (1897).
Am. Dec. 324 (1S61). 7. 5 Chamberlayne, Evidence, 3742.
4. Coggins v Chicago & A. R Co. 18 111. 8. 5 Chamberlayne, Evidence, 3743-
App 620 (1886): McCrary v. Cramlall. 1 3745.
Iowa 117 (1855); ftigbee v. McMullan. 18 9. Barker v. Citizens' Mut. Fire Ins Co..
Kan - 133 - 136 Mich. 626, 99 X W. 866 (1904). A
944
945
ClIAEACTEK.
1183
to this effect, with a slight difference in their manner of stating the reason, in
substance all base their conclusion upon the idea that the one who presents a
witness to the court in support of his case represents him as worthy of belief
and will not subsequently be permitted to impeach him by evidence to the con-
trary. 10
Thus a party may not put in evidence for the purpose of impeachment
that a witness has made contradictory statements n or is influenced bv bias 12
. V
except to refresh his recollection la or in some jurisdictions in case of sur-
prise 14 or in case of a witness whom the party is obliged to call. 15 The party
may produce other witnesses whose testimony on material facts is contradictory
to that of his witness. 10
1183. Opponent's Witness; Character. 17 It is the general rule that a wit-
ness may be impeached only by evidence of bad character for veracity 18 and
not of general bad character w and evidence of particular facts is not admis^
sible 2u except in cross-examination. 21 Evidence will be received of a prior
conviction for a crime 2 '~ although the witness has been pardoned 23 or a ne\y
trial ordered. 24 The character evidence should be of a time near the trial 25
prosecuting attorney may not impeach his
o\vn witness by stating in the presence of the
jury that he told a different story on the
stand from what he had told previously.
Mere failure to testify does not give the right
to impeach anyway and he cannot be im-
peached in this way. Andrews v. State, 64
Tex. Crim. Rep. 2, 141 S. W. 220, 42 L. R. A.
(X. S.) 747 (1911).
10. People v. Skeehan/49 Barb. (X. Y.)
217, 219 (1867), per Leonard, P. J.
11. Appeal of Carpenter, 74 Conn. 431, 51
Atl. 126 (1902).
12. Fairly v. Fairly, 38 Miss. 280 (1859);
//; re Melon's E si ate, 56 Hun (X. Y.) 555,
9 X. Y. Suppl. 929 (1890).
13. People v. Sherman, 133 X. Y. 349, 31
X. E. 107 (1S92).
14. People v. Brocks, 131 X. Y. 321, 325,
30 X. E. 189 (1S92 I.
15. Illinois- Thompson v. Owen. 174 111.
229. 51 X. E. 1046, 45 L. R. A. 6S2 (1S98).
16. Ingersoll v. English, 66 X. J. L. 463,
49 Atl. 737 (1901).
17. 5 Chamberlayne, Evidence, 3740-
3751. As to character evidence, see ante,
1025 ct scq.
18. F. W. Stock & Sons v. Dellapenna. 217
. 503 (1914). It seems that in Xew
York evidence of either general bad char-
acter or bad character for veracity is admis-
sible. But see Wright v. Rage, 3 K eyes 581.
Carlson v. Winterman, 10 Misc. 388. Adams
v. Greenwich, Ju*. Co. 70 X. Y. 388.
19. State v. King. 88 Minn. 175. 92 X. W.
9-65 (1903). Contra, State v. Haupt, 126
Iowa 152, 101 X. W. 739 (1904). What may
be asked on cross-examination character of
witness, see note, Bender, ed., 32 X. Y. 131,
140.
Gambling. A witness may be impeached
by showing that he lived in a gambling place
and asking what his habits are, as if the wit-
ness had been engaged in any occupation
which would tend to impair his credibility the
jury is entitled to that information. State v
Fong Loon, 21) Idaho 24S, 158 Pac. 233. L.
R. A. 11)1(5 F 111)8 (1916).
20. Stock & Sons v. Dellapenna, 217 Mass.
503, 105 X. E. 378 (1914).
21. State v. Chingin, 105 Iowa 169, 74 X.
W. !)46 (1898).
22. People v. Cascone. 185 X. Y. 317, 78
X E. 2S7 (1906). A witness may be im-
peached by being asked whether he has not
l>een convicted of larceny and later paroled.
United Railways v. Phillips, 121) Md. 328, 99
Atl. 355, L. R. A. 1917 C 384 (1916).
23. Curtis v Cochran, 50 X. II. 242 (1S70).
The disqualification of a witness as he had
been convicted of perjury may be removed by
the production of a pardon properly con-
nected with the crime, but the conviction may
be put in evidence just the same. Rittenberg
v. Smith, 214 Mass. 343. 101 X. E. 989, 47
L. R. A. (X. S.) 215 (1913).
24. State v Duplechain. 52 La. Ann. 448,
26 So. 1000 (1S99)
25. Miller v. Assured's Xat. M. F. I. Co,
1184,1185 IMPEACHMENT OF WITNESSES. 94(3
and of the place where his reputation fairly existed and need not be confined
to his present residence. 26 .
1184. [Opponent's Witness] ; Bias or Interest. 27 The bias, 28 or interest 29
of a witness is always recognized as proper, to be considered by the jury as
bearing upon the credit to be accorded to his testimony. When the credit of
the witness has been thus attacked his attitude may be explained ;!U and his
position in the case as being interested in its outcome 31 pecuniarily or through
relationship 32 or friendship with a party may always be shown. The fact
that he has been or is to be paid for his testimony 3:5 as in case of detectives 34
or that he is the complaining witness 35 or an accomplice 30 may always be
shown.
1185. [Opponent's Witness] ; Contradictory Statements. 37 A frequent mode
of impeaching the credit of a witness is by evidence showing, that at some
other time or times, he has made statements inconsistent with, or contradictory
to, his present testimony. 38 This may be done in cross-examination 3S) when
the statement is as to a material point in the case. 40 A proper foundation for
this contradiction should be laid by calling the attention of the witness to the
alleged contradictory statements and asking him whether he has made them 41
and he should then be given a right to explain them. 42 If the statement was
not as to a material fact his statement is conclusive and cannot be contra-
dicted. 43 That the witness denies that he remembers making the -statement
184 111. App. 271, affirmed 264 111. 380, 106 34. State v. Shew, 8 Kan. App. 679, 57 Pac.
N. E. 203 (1914). 137 (1899).
26. Lake Lighting Co. v. Lewis, 29 Ind. 35. People v. Bennett, 107 Mich. 430, 65
App. 164, 64 X. K. 35 (1902). X. W. 280 (1895).
27. 5 Chainherlayne, Evidence, 3752- 36. People v. Becker, 210 N. Y. 274, 104
3754. X. E. 31)6 (1914) (holding that may com-
28. Ross v. Reynolds, 112 Me. 223, 91 Atl. pel production of immunity agreement when
95j! (1014;. in writing). A perjurer is not an accoui-
29. Xesbit v. Crosby, 74 Conn. 554, 51 Atl. plice of one accused of subornation of perjury
550 ( 1902). within the rule that the evidence of an accom-
30. People v. Zigouras, 163 N. Y. 250, 57 plice should be received with caution. The
X'. E 405 (1900). An imputation of bias crime of perjury committed was a separate
against a witness may always be rebutted so and distinct offense from that of subornation
where a witness is asked whether he has a of perjury. State v. Richardson, 248 Mo.
suit, pending against the city and he replies 563, 154 S. W. 735, 44 L. R. A. (X. S.) 307
that he did have he may be further asked (1913).
whether he lias not settled his claim to show 37. 5 Chamberlayne, Evidence, 3755.
that he has no present interest in the matter. 38. Cotton v. Boston Elevated Ry., 191
Louisville v. Ilerheman, 161 Ky. 523, 171 S. Mass. 103, 77 X. E. 098 (1906).
\V. 105, L. R. A. 1915 C 747 (1914). 39. Hoye v. Chicago M. & St. P. Ry. Co.,
31. Purclee v. State, 118 Oa. 798, 45 S. E. 46 Minn. 269, 48 X. W. 1117 (1891).
606 <1'.H)3). 40. Commonwealth v. Xelson, 180 Mass. 83,
32. State v. Lortz, 186 Mo. 122, 86 X. YV. 61 X. E. 802 (1901).
!H)0 <inOo). 41. Davison v. Cruse, 47 Xeb. 829, 66 N.
33. Southern Ry. Co. v. Crowder, 130 Ala. W. 823 (1896).
-56, 30 So. 592 (1901). 42. State v. Reed, 62 Me. 129, 146 (1874).
047
CONTRADICTORY STATEMENTS.
1185
has the same effect as though he denied making it. 44 Proof that a prior con-
tradictory statement has been jnade does not render the statement evidence of
the facts assertod. 45 Where the contradictory statement has been shown it
seems the better view that other prior statements may be proved consistent
with his present testimony. 40
43. Alger v. Castle, 61 Vt. 53, 17 Atl. 727
(1888).
44. Gregg Township v. Jamison, 55 Pa. 468
(18671.
45. Jensen v. Michigan Cent. R. Co., 102
Mich. 176, 60 X. W. 57 U8!)4). Contradic-
tory statements made by the witness before
trial can have no legal tendency to estab-
lish the truth of their subject-matter. South-
ern K. Co. v. Gray. 241 L*. S 333, 36 S. Ct.
Rep. 558 (1916). Evidence in a prosecution
for perjury is insufficient that the defendant
made contradictory statements although evi-
dence of such statements is admissible and
can be explained by showing. that they were
made under duress. People v. McClintic, 193
Mich. 589, 160 N. W. 461, L. R. A. 1917 C 52
(1916).
46. Burnett v. Wilmington N. & N Ry. Co.,
120 X. C. 517, 26 S. E. 819 (1897). See
Rogers v. State, 88 Ark. 451, 115 S. W. 156,
41 L. R. A. (N. S.) 857 (1908).
INDEX
[References are to Sections]
ABBREVIATIONS
judicial notice of, 358.
opinion as to, 768.
account books, in, 984.
ABORTION
dying declarations, 900.
ABSENCE
judge, from courtroom, 76
attorney from court as contempt, 105.
from locality, presumption of continuance,
422*
husband, of, effect on presumption of legiti-
macy, 448.
seven years, of, presumption of death. 451-
461.
agent, of, evidence of his admissions, 541.
witness, of, as ground for continuance, 281
witness, of, former evidence. 620, 624.
record, of, as negative fact, 667.
business difficulties, of, opinion as to, 717.
marriage, of, shown by reputation, 934
ABSENT MINDEDNESS
opinion as to, 701
ABSTRACT OF TITLE
date of, presumed correct, 425.
admissions in, 553
ABUSE
upon cross examination, 296.
court, of, as contempt, 100.
discretion, of, 75
ACADEMY
presumption of knowledge of by-laws of, 477.
ACCESS
on question of legitimacy. 447.
ACCIDENTS
railroad, cause of, export evidence as to, 814.
ACCOMPLICE
testimony of, 1 184
ACCOUNT BOOKS
See also. SHOP BOOKS.
admissions by, 547, 552
entries in course of business, 923.
government officials, of, 1082.
parol evidence of, 152.
ACCOUNTS
See also, SHOP BOOKS.
books as evidence, 977-995.
failure to object to, 563
statement of, oral evidence to show, 1128.
ACCOUNT STATED
admissions in, 548.
ACCURACY
proof of other acts to show, 1024.
ACCUSATION
ti avail in, 968
ACCUSED
See also. CRIMINAL LAW.
privilege against self-incrimination, 597-601.
See also, CONFESSIONS.
ACKNOWLEDGMENT
deed, impeachment of, by parol evidence,
1120 n
ACQUIESCENCE
pedigree statements, in. 938
silence as proof of, 566-571
ACTIONS IN REM
burden of proof, 390
ADEQUATE KNOWLEDGE
See also. STBJECTIVK RELEVANCY.
character, witness of. 1038
declarations as to public matters, 891.
opinions for. 682
opinions of value, 753
shop hook rule, 979
skilled witnesses. 379.
adjournment
See CONTINUANCE.
ADJOURNMENTS
province of court. 77
to avoid publicity, 84
for judge to examine law, 333
to meet unanticipated testimony, 281.
trial, of. to prevent surprise, 276
ADMINISTRATION
SUBSTANTIVE RIGHTS
principles of administration, 147
protection of substantive rights, 148.
right to prove one's case, 149.
949
950
INDEX. (References are to Sections.)
Administration cont'd.
right to use secondary evidence, 150.
documents, 151.
negotiable instruments, 151.
public records, 151.
deeds, 151.
bills of sale, 151.
contracts, 151.
wills, 151
probative documents, 152.
letters as contracts, 152.
means of communication, 153.
interpreters, 154.
deaf mutes, etc., 155.
scope of right, 156.
evidence in chief or in rebuttal, 156.
limited to proof of res gestae, 157.
order of stages, 158.
right to open and' close, 159.
plaintiff has right, 159.
plaintiff as actor, 160.
defendant as actor, 161
code and common law pleadings, admis-
sions, 162
proceedings in rem, 163
variations in order of evidence, 164.
evidence in chief, 165.
opening of case for limited purpose, 165
the minimum of administrative indul-
gence, 105.
the higher interests of the furtherance of
justice, 165
the maximum of concession, 165.
reason required, 165.
actor. 166
nonactor, 107
order of topics, 168
bearing not apparent, 170
conditional relevancy ; bearing apparent,
100.
right to test adversary's case, 171
cross-examination, 172.
rebuttal. 173
testinjr on rebuttal. 173.
scope of rebuttal. 173.
a substantive right to reason, 173.
actor. 174
use of experts, 175.
anticipatory rebuttal, 176.
non-actor, 177
subsequent rebuttal, 178
right to use of reason. 179
should prevent jury from being misled, 180
guessing not permitted. 181
striking ont prejudicial evidence, 182.
irn-sponsivenesK. 182
withdrawal of jury, 183
prevent in jr irrational verdicts, 184.
actions for a penalty, 184.
directing verdicts. 185
relation to urant of new trial. 186.
relation to motion in arrest of judum -\\'.
187
Administration cont'd.
directing verdicts cont'd.
a matter of law, 188.
general rules, 189.
scintilla of evidence not sufficient, 190.
motion equivalent to a demurrer to evi-
dence, 191.
direction against the actor, 192.
direction in favor of actor, 193.
in a criminal case, 193.
time for making motion, 194
direction on opening, 195.
party moving may be required to rest, 196.
nominal or actual verdicts, 197.
effect of waiver, 198.
action of appellate courts, 199.
effect of rulings on evidence, 200.
judge sitting as jury, 201.
right to judgment of court or jury, 202.
performance of functions by judge, 203.
waiver, 204
general right to jury trial; witnesses not per-
mitted to reason, 205.
a strongly entrenched right, 206.
federal constitution, 207.
state constitution. 208.
scope of common law, 209.
venue, 209.
court may allow jury trial, 209.
judicial powers reserved, 210.
the power of the court, 210.
the right of an appellate court, 210.
statutory construction; criminal cases, 211
waiver forbidden, 212
incidental hearings, 213
special proceedings, 214
statutory proceedings, 215
in what courts right can be claimed, 216.
who may claim right, 217.
the power of the legislature, 217.
reasonable limitations permitted; demand,
218
when one party seasonably claims a jury
trial, 218.
minor criminal offenses, 219.
payment of jury fees, 220.
restricted appeals, 221.
unreasonable limitations unconstitutional,
222
limitations on right to jury trial, 222.
waiver and estoppel, 223
right to confrontation, 224.
waiver, 225.
ADMINISTRATION
FURTHERANCE OF JUSTICE
See also. COURT AND JURY.
niust accord equal privileges, 657.
f nrtherance of justice. 226
Completeness demanded. 244
iral statements: proponent. 245.
admissions and confessions, 246.
oral, 247
INDEX. (References arc to Sections.)
951
Administration cont'd.
oral statements cont'd.
confessions, 248.
independent relevancy, 249.
res gestae an exception, 250.
oral statements opponent, 251.
probative effect, 252.
right of initiative, 253.
former evidence. 254.
independent relevancy, 255.
rules relating to incorporation by reference,
255.
documents; proponent; independent rele-
vancy, 256.
judgment, 257.
general practice, 258.
depositions, 259.
admissions, 260.
public records, 261
deeds, wills, etc., 261.
executive. 202.
legislative, 263.
judicial, 264.
irrelevancy, if separable, rejected, 264.
pleadings at law, 265.
pleadings in chancery. 266.
statutory interrogatories, 267.
judgments, 268.
verdicts, 260.
executions, 270.
wills and probate papers, 271.
administration, 271.
private records. 272
opponent; independent relevancy, 273.
incorporation by reference. 274.
if a letter is introduced. 274.
obligation to introduce into evidence result-
ing from demand and inspection,
275
primary evidence required. 227.
grading of primary evidence. 228.
evidence by perception. 229.
written and oral evidence, 230.
not a question of probative force. 231.
extent of administrative action, 232
necessity for using secondary evidence, 233.
grounds of necessity: witnesses or docu-
ments. 234
difficulty of proof, subject-matter, 234.
degrees of secondary evidence, 235.
how objection is taken, 236
" best evidence " as a rule of procedure, 237
" best evidence " rule at the present time,
238.
present scope of rule, 239.
a sole survival. 240
hearsay. 242
a vanishing rule. 241.
attesting witnesses, 243.
prevent surprise. 276.
new trial for newly discovered evidence, 277.
action of appellate courts. 278.
amendment of pleadings, 279.
Administration cont'd.
action of appellate courts cont'd.
decisions on dilatory pleas, 280.
testimony, 281.
production of documents, 282.
time and place of hearing, 283.
surprise must be prejudicial, 284.
protection against unfair treatment, 285.
unfair comment, 286.
incidental comment permitted, 287.
unreasonable comment, 288.
comments on law, 289.
influence of spectators, 290.
misquoting evidence, 291.
reprimanding counsel, 292.
reprimanding a party or his witnesses, 293.
effect of waiver, 294.
protect witnesses from annoyance, 295.
cross-examination. 296.
a reasonable limitation, 297.
intimidation, 297.
innuendo, 297.
judge may interrogate witnesses, 298.
in order to elicit material facts, 299.
range of injury, 300.
judge may call additional witnesses, 301.
judge should hold balance of indulgence
even. 302
uso of incompetent testimony, 302.
judge should require full disclosure, 303.
expedite trials. 304.
methods employed, 304.
judge should aim to give certainty to sub-
stantive law. 305
action of appellate court: judicial function
of trial judge; substantive law, 306.
findings of fact, 307.
farts conditioning admissibility. 308.
competency of witnesses, 309.
administrative function of trial judge, 310.
executive function, of trial judge. 311.
all intendmonts made in favor of trial
judge, 312.
powers of an appellate court, 313.
modification of action. 314.
ADMISSIBILITY
public documents of. 1049.
ADMINISTRATIVE BOARDS
judicial knowledge of, 342.
ADMINISTRATORS
admissions by. 537.
final settlement of, proof of, 1065.
proof of appointment of, 271. 1065.
proof of deed executed by, 1101
See also, PROBATE COURTS.
ADMIRALTY COURTS
judicial knowledge of lav-. 324.
judicial knowledge of seal of. 344.
jury trial in. 207, 216.
952
INDEX. (References are to Sections.)
Admiralty Courts cont'd.
presumption from failure to call witnesses,
486.
presumption from spoliation of property, 439.
ADMISSIBLE EVIDENCE
defined, 10.
ADMISSIONS
judicial
admissions defined, 499.
probative force, 500
formal judicial admissions, 501.
canons of construction, 501.
levamen probationis, 501.
control of court, 501.
limitations upon effect, 501.
form of admissions, 502.
pleadings; in same case, 503.
constituting the issue, 504.
deliberative facts, 505
use as admissions, 506.
administrative details, 506
in other cases: formal ion of issue, 507
use as admissions, 508.
conditions of admissibility, 508.
civil and criminal cases, 508.
code pleading, 509.
law and equity, 510.
equity pleadings; answer, 511.
bill, 511.
state and federal courts, 512.
superseded or abandoned ; evidence re-
jected, 513
verification by oath, etc., 513.
minor details, 513
evidence admitted, 513.
stipulations, 514.
informal judicial admissions. 515.
probative force. 515.
adoption by party, oral evidence, 515
written statements, 515.
depositions, 515
form of admissions: oral; testimony by
party, ">lti
criminal discs. r>l(i
committing magistrates, inferior courts,
etc.. 510.
conditions of admissibility. 510.
civil and criminal cases, 510.
minor details, 51 (i.
how testimony may be proved. 516.
explanation permitted, 516.
writings, 517.
affidavits, 518.
criminal cases. 5IS.
invalid affidavits. 518.
depositions. .V_ J
answers to interrogatories. 519.
invalid depositions. 520.
judicial admissions: by whom made, 521.
attorneys, 522.
matters of procedure. 52:2.
Admissions cont'd.
judicial cont'd.
acts in pa is, 522.
responsibility for claims, 522.
responsibility for concessions, 522.
substratum of fact, 522.
probative force, 523.
other cases, 523.
formal judicial admissions conclusive, 524.
informal judicial, admissions constitute
prima facie case, 525.
extra-judicial
extra-judicial admissions; definition, 526.
confession distinguished, 583.
declarations against interest distinguished,
882.
effect of withdrawn plea of guilty, 525-a.
hearsay as, 879.
effect on presumption of death after seven
years, 455
evidence of, may be discussed by judge, 287.
use a general one, 527.
criminal cases, 527.
time of making. 527.
minor details, 527.
conditions of admissibility; statement must
be one of fact, 528.
psychological facts. 528.
matter of law, 528.
statement must be voluntary, 529.
criminal cases, 529
statement must be certain, 530.
statement must be complete, 246-247, 260,
531, f>44
written declarations, 531.
statements on other occasions, 531.
criminal cases, 531.
self-serving acts, appearances, etc., 531.
self-serving statements, 531.
irrelevancy, 531
weight and credibility, 531.
statement must be relevant, 532.
remoteness, 532
criminal cases. 532.
conditions of probative relevancy; ade-
quate knowledge, 532.
infants, feeble-minded, etc., 532.
deliberative facts; contradictory state-
ments, 532.
extra-judicial admissions: by whom made;
parties. 533.
parties to the record, 534.
criminal cases. 534
co-parties; declarant affected as if sole
party. 535
necessary prejudice. 535.
oo- party not affected. 536.
exceptions to rule. 536.
negotiable instruments, 536.
self-serving statements, 536.
joint ownership, 5.3t>
the declarant must be a party, 536.
rights of copariy. 536.
INDEX. (References are to Sections.)
953
Admissions cont'd.
extra-judicial cont'd.
joint offenses, 536.
joint liability, 536.
nominal parties, 537.
principal and agent, 537.
persons acting in a fiduciary capacity,
537.
persons beneficially interested, 538.
mental states, 538.
corroboration and impeachment, 538
res gestae, 538.
persons acting in fiduciary capacity, 538.
test of beneficial interest, 538.
admissions by privies, 539.
claim, 539.
disclaimer, 539.
mental state, 539.
evidence primary, 539.
independent relevancy; admissions dis-
tinguished, 539
mental condition, 539.
injured person in a criminal proceeaing,
539
admissions by agents, 540.
specific authority must be shown, 540.
statement must be within scope ot
agency, 540.
proof of agency by declarations of agent,
540.
the statements of a special agent, 540.
general and special agency, 540.
in case of a general agency, 540.
opinion excluded. 540
the statements of both general and spe-
cial agents, 540
agency must be affirmatively shown, 540
evidence is primary, 541.
res gestae in this connection, 542.
admissions by conduct, 542.
narrative excluded, 542
admissions may be in narrative form,
542
spontaneity required, 542.
independent relevancy distinguished, 543
probative or constituent acts of an
agent, 543
impeachment, inconsistency, etc., 543.
mental state, 543.
statements through interpreter, 543.
form of extra-judicial admissions; adoption,
544.
memoranda as, 109S
in offers of compromise, 575, 578
in res gestae, 963.
completeness will be required, 246, 247,
260, 544
evidence is primary, 544.
oral, 544
criminal cases, 544.
references to another, 545
writing, 546
book-entries, 547.
Admissions cont'd.
form of extra-judicial confd.
admissions of non-owner of books, 547.
loan agencies, railroads, 547.
when original entries need not be pro-
duced, 547.
effect of agency, 547.
independent relevancy, 547.
banks, 547
partnership books, 547.
real estate, 547.
banks, 547.
business documents, 548.
commercial paper, 549.
letters, 550.
minor details, 550.
self-serving statements not competent,
550.
completeness required, 550.
criminal cases, 550.
obituary notices, 551
official papers, 552.
professional memoranda, 553.
tax lists, 554
temporary or ephemeral forms of writ-
ing, 555.
transmission by telephone, 556.
scope of extra-judicial admissions, 557.
evidence of death, 455.
effect of on proof of documents, 1100.
as to contents of documents, 1123.
specific as confessions, 613.
mental conditions, 557.
mental state, 557.
criminal cases; facts of conduct, 557.
physical facts, 557.
contents of a writing, 557.
probative force of extra-judicial admissions,
558
judicial estimates: unfavorable, 558.
question for the jury, 558.
criminal cases, 558.
declarant may explain, supplement, 558.
judicial estimates; favorable, 558.
not conclusive in the absence of estoppel,
558.
criminal cases, 558.
deceased persons, 558.
prima facie quality, 558.
impeachment, 558
criminal cases, 558.
See INTEREST, DECLARATIONS AGAINST.
by conduct
admissions by conduct; inconsistent conduct,
550'
an attempt to escape, 559.
declining to flee, voluntary return, etc.,
559
suppressing prosecution, 559.
bodily condition, 559
order of acts, 559
actor alone affected, 559
flight. 559
954
INDEX. (References are to Sections.)
Admissions cont'd.
by conduct cont'd.
explanation received, 559.
clear relevancy demanded, 559.
mental state, 55!).
conduct consistent with adversary's claim,
569
failure to advance present defense, 559
failure to allege present claim, 55!)
efforts at settlement, 559
silence, 5tiO.
fail lire to object to written statements, 561.
party must be under a definite duty to
declare the truth, 561.
obligation of good faith, 561
effect of denials, 561
conditions of admissibility ; party must
understand the statement, 561.
probative force, 562.
active adoption. 562.
effect of partial answers, 562.
inference rebuttable, 5(i2
scope of inference: book entries, 563.
evidence admitted, 563
letters, 563
commercial writings, 563
legal documents, 563.
criminal cases, 563.
independent relevancy, 564
falsehood, 565.
silence as proof of acquiescence, 566.
inference of acquiescence rebuttable, 566
civil cases, 566
criminal prosecution, 566
aelf-serving statements. 566
conditions of admissibility, 567
statement must have been understood,
5(>S.
understanding assumed from hearing,
.->6s
all attendant subjective facts consid-
ered, 568
attention, 568
all attendant objective facts considered,
5U8
denial must be natural, 569
declaration must invite a reply. 569.
failure to deny later, 569
inducements to silence, 569
husband and wife, 569
time should be appropriate for denial,
569.
the declarant must be entitled to reply,
569
party expected to speak, 569
silence of prudence, 569.
effect of arrest, 569.
duty to speak. 569.
adequate knowledge, 570
party must be physically and mentally
capable of reply, 571
probative force and effect, 572
statements and other facts, 573.
ADMITTANCE
court room, to, 79, 80.
ADOPTION
admissions made by another, 544.
ADULTERY
admissions by co-defendant, 536.
presumption of legitimacy, 446-450.
proof of character for chastity, 1033.
sufficiency of evidence in divorce case, 410.
testimony of husband or wife, 1155.
ADULTS
estimate of age of, ".')(>
ADVERSE POSSESSION
presumption of lost grant, 472.
ADVICE
counsel, of, as defense to contempt, 101.
AFFECTION
opinion as to, 711.
AFFIDAVITS
admissions in, 518.
admission of, 1063
hearsay, as, 878.
AFFILIATION
See BASTARDY.
AFFIRMATIVE DEFENCE
burden of proof of, criminal cases, 401.
AGE
See also, DOCUMENTS, ANCIENT.
ancient documents, of, 1103
appearance in court to show, 1134.
documents, of, opinion as to, 769.
estimate of, 736.
evidence of one's own, 940.
infant, of, determined by inspection, 61.
pedigree declarations as to, 931, 940.
presumption of capacity for crime, 463.
proof of, by admissions, 557.
reputation to show, 934.
AGENCY
acquiescence or silence of agent. 566.
admissions by agents, 537. 540-543.
admissions of agent bind himself, 537.
agreements, best evidence rule, 1121.
conclusion of witness as to, 805
offer of compromise by agent, 576.
parol evidence to show, 1118
presumption of authority of agent, 469.
proof of, 540.
proof of, by unsworn statement, 843
deed executed by agent, proof of, 1101
spontaneous statements by agents, 964, 976.
unsworn statements by agents, 843.
INDEX. (References are to Sections.)
955
AGREED STATEMENTS OF FACTS
use of, 47.
former evidence as to, 036.
AGRICULTURE
See also, FARMING.
judicial notice of facts of, 362.
judicial notice of seasons, 353 n.
opinion of value of services, 757..
AIM
judge, of, 305.
ALDERMEN
judicial knowledge of, 341.
presumption of regularity of acts of, 493.
See also, MUNICIPAL CORPORATIONS.
ALE
judicial notice of, 353.
ALIBI
burden of evidence as to, 404.
ALIENIST
opinion of, 722
See also, EXPERTS.
ALMANACS
judicial notice of facts of, 354.
use of, to discover matters of judicial no-
tice, 366.
ALTERATIONS
age of alterations in documents, 769.
document, in, opinion of, 769.
documents, of, presumption from, 442.
instrument, of, parol evidence rule, 1108-
1120.
public record, of, parol evidence to show,
1120 n.
subsequent, of writing, parol evidence rule,
1116.
AMBASSADORS
exempt from subpoena, 1140.
AMBIGUITY
document, construction of. 57.
parol evidence rule as to, 1115.
term " expert," of, 676.
AMENDMENT
pleadings, of, effect on admissions in, 513.
pleadings, of, warrants stav of proceedings,
279.
public acts, of, judicial knowledge of, 331.
AMNESTY
judicial knowledge of granting of, 336.
AMUSEMENTS
judicial notice of, 358.
ANCIENT BOUNDARY
proof by tradition, 876.
ANCIENT DOCUMENTS
proof of, 1102-1107.
presumption of death of attesting witnesses,
474.
See also, DOCUMENTS, ANCIENT; ANCIENT
FACTS.
ANCIENT FACTS
presumption of regularity of, 490.
proof of, 056.
proof of, by secondary evidence, 234.
ANCILLARY FACTS
relevancy of, 068.
ANGER
opinion as to, 711.
ANIMALS
bloodhounds tracking criminal, 797.
character of, 1042, 1046.
conduct of, 694.
diseases of, opinions, 722.
estimate of age of, 736.
estimate of speed of, 740.
evidence of appearance of, 692.
habits of, skilled witness as to, 389.
identification of, 696.
judicial notice of, 358, 362.
mental states of, 711
opinions as to, 718.
opinion of cause of act of, 739.
opinion as to change of value, 749.
opinion of identification, 695.
other acts to show knowledge, 1012.
pedigree of, 939.
production in court, 1133.
transportation of, opinion as to, 732.
use of, account books to show, 990.
ANNOYANCE
protection of witnesses from. 295.
unsworn statements to show, 847.
ANNULMENT
judgment, of, sufficiency of evidence, 411.
ANSWERS
admissions by, 503-506. 511.
burden of proof on plea in, 398.
interrogatories, to, admissions by, 519.
special interrogatories, to, 52.
ANTI-NUPTIAL CONTRACT
sufficiency of evidence for specific perform-
ance of, 411.
APPEAL
right of, from jury decision, 221.
956
INDEX. (References are to Sections.}
APPEARANCE
accused, of, as innocent, 531.
failure to appear, presumption as to, 436.
opinions as to, 093
APPELLATE COURTS
action of, 75, 80, 1:53, 134-145, 154, 190, 199,
200. 278-284, 300-314, 343, 687,
755, 1132.
APPENDIX
state document, to, 1057.
APPLAUSE
prevention of, in court room, 290.
APPLIANCES
railroad, expert evidence as to, 814.
APPLICATION
for jury trial, 218.
insurance policy, for, admissions in, 548.
insurance policies, for, proof of, 1099.
APPOINTMENT
administrator, of, pi oof of, 271, 1065.
interpreters, of, 154.
judicial knowledge of, 334
APPRAISALS
admission of, 1082.
estate, of, proof of, 1065.
APPRAISER
opinion of value by, 753.
APTITUDES
presumption of continuance of, 421.
ARBITRATION
admissions on, 529
ARCHITECTS
experts, as, 716, 811.
opirion by, 716.
AREA
opinion as to, 740.
ARGUMENT
matters of, 53.
by witnesses, 53.
judge not m| : n-d to listen to, 116.
restricting length of, 304.
withdrawal of jury during, 183.
ARMY
opinion of officers of, 728.
records of, admission of, 1082.
ARREST
effect of. on acquiescence by silence, ;"i(i!l.
witnesses, of, as contempt of court, 109.
effect of, on confession, 593.
ARSON
character evidence in, 1033.
other offenses as res gestae, 839.
sufficiency of evidence to show, in civil case,
410.
ART
evidence as, 22.
ARTS
judicial notice of, 358.
mechanic, judicial notice of, 358, 362.
state of, skilled witness, 383.
ASSAULT
character evidence in, 1030, 1033.
dying declarations, !>00.
on officer serving process as contempt, 108.
other offenses, proof of, 839.
res gestae in, 839.
ASSENT
unsworn statements to show, 847.
ASSESSMENT
best evidence rule, 1121.
damages, of, jury trial in, 215.
property for taxes, of, judicial knowledge as
* to, 335.
taxes of, regularity of, 493.
ASSESSMENT ROLL
record of, 1083.
ASSESSORS
opinion of value, 753.
presumption of regularity of acts of, 493.
records of, 1083.
ASSIGNMENTS
copies of foreign records, 1090.
parol evidence to show nature of transac-
tion, 1118 n.
parol evidence rule, 1108.
proof of, 1099.
ASSIZE
trial by, 120.
ASSOCIATIONS
unincorporated, contempt of court by', 103.
records of secret societies, 1096.
ASSUMPTIONS
See also, PRESUMPTIONS.
procedure, of, 444
ASSUMPTION
facts, of, by judge, 126.
ATHEIST
witness, as, 1148, 1153.
IXDEX. (References are to Sections.)
957
ATTACHMENT
attendance of witnesses, for, 1141.
record to show, 1082.
ATTACKS
on court officers as contempt of court, 106.
See also, ASSAULT.
ATTENDANCE
witnesses, compelled by court. 103.
preventing attendance of, as contempt, 109.
ATTENDANTS
court, contempt of court by, 103.
ATTORNEY-GENERAL
judicial notice of, 343.
ATTESTATION
judicial records, of. 1074.
See also, AUTHENTICATION : DOCUMENTABY
EVIDENCE
ATTESTING WITNESSES
proof of document by. 1 100.
as a best evidence rule, 243.
See also. WITNESSES.
ATTORNEYS
See also, POWEH OF ATTORNEY.
action of judge in reprimanding, 292
admission by, 521, 522.
aiding violation of order for separation of
witnesses, 03.
comment upon evidence, by, 297.
consultation with witness, 87.
contempt of court. 101, 102, 105.
insulting witnesses. 205.
judicial notice of. 343
offensive treatment of witnesses upon cross
examination. 206.
misquotation of evidence by, 201.
mistake of, corrected by judge, 131.
obstructing justice, 104.
opinion of value of services of, 759.
presumption of knowledge of law, 477.
presumption of regularity of acts of. 493.
privileged communication to, 11(10-1164.
restricting length of argument of, 304.
restricting number of. 304.
stipulations as admissions, 514
subject to order of court, 102, 105.
suggestions by judge to, 200 n.
sufficiency of evidence in disbarment of, 410.
testimony of law in foreign state, 386.
witnesses, as, 1154
AUCTIONEER
opinion of value by, 753.
AUCTIONS
"basis for opinion of value, 763.
AUTHENTICATION
certificate of death, of, 455.
copies of judicial records, 1059, 1066-1079.
copy of records, 1085.
map, of, 10S2.
ordinances, of, 1056
private documents, of, 1099.
proof of documents, 1123.
public documents, 1053, 1054.
records of private corporations, 1092.
AUTOMOBILES
estimate of speed of, 740.
AUTOPSY
expert evidence as to. 727.
AUTHORITY
agent, of, presumption of, 460.
agent, of, to make admissions, 540.
burden of evidence of want of, 406.
signing of instrument, parol evidence rule,
1110.
AVOIDANCE
danger, of, presumption of, 424.
AWARDS
best evidence rule, 1121.
B
BAD FAITH
other acts to show, 1014.
unsworn statements to show, 847, 852.
BAILMENT
proof of, by unsworn statement, 843.
BALLOTS
best evidence rule, 1121.
BANK BOOKS
admissions in, 547
BANKING
admissions in books of, 547.
judicial notice of, 3(i2.
laws judicially known, 326.
BANK-NOTES
identification of, 4(i6, 607.
BANK OFFICER
opinion on handwriting by, 768.
BANKRUPTCY
admissions made in proceeding of, 516, 529.
admissions in records of, 552
BARGAIN WITNESSES
proof by, 120.
958
INDEX. (References are to Sections.)
BASTARDY
accusation in travail, 968.
character evidence in, 1030.
presumption of legitimacy, 446-450.
resemblance as evidence of paternity, 1135.
sufficiency of evidence in civil case, 410.
BATTLE
trial by, 120.
BEER
judicial notice of, 353.
BELIEF
as a subject of admissions, 528.
dying declarant, of, 908.
opinion as to, 711.
unsworn statement to show, 847.
witness stating, 673, 711.
BEST AND SECONDARY EVIDENCE
distinction between, 11.
BEST EVIDENCE
See also, ADMINISTRATION-. PRIMARY EVI-
DENCE; SECONDARY EVIDENCE.
in general
attesting witnesses, 243.
a vanishing rule, 241.
classes of primary evidence, 231.
denned, 11.
degrees of secondary evidence, 235.
inability to procure witnesses, 234.
manner of taking objection, 236.
necessity for use of secondary evidence, 234
present scope of rule, 23!)
proof of ancient facts, 234.
right to produce- secondary, 150.
rule at present time, 238, 242
rule of, considered, 227-243.
rule of procedure as a, 237.
spoliation of primary evidence, use of sec-
ondary, 440.
application to documents
writing executed in duplicate, 1122.
when proof other than by original allowed;
administrative requirements, 1123
may be authenticated as genuine, 1123.
admissions relating to contents, 1123.
loss or destruction of original, 1124.
amount of proof required, 1124
evidence to establish, 1124.
province of the jury, 1124
a question for the presiding judge, 1124
diligence required in search, 1125
a question for the presiding judge, 1125.
public records: official and judicial, 112(J
voluminous facts in different writings,
1127.
writing collateral to issues, 1128
writing in control of adverse party, 1129.
requirements as to notice, 1129.
notice to produce: necessity of, 1129
writing in possession or control of third
party; out of jurisdiction. 1130
BEST OF JUDGMENT
witnesses stating matter to, 673.
BIAS
declarations, 892.
medical witness, of, 726.
witnesses, of, 11S4.
witnesses, of, instructions as to, 131.
BIBLE
entries in, 936
evidence, as, 940.
BIGAMY
presumptions in, 498.
presumption of death, after absence for seven
years, 451-461.
testimony of wife, 1155.
BILLIARD ROOM PROPRIETOR
account book of, 992.
BILL OF DISCOVERY
admissions in answer to, 511
BILLS AND NOTES
See NEGOTIABLE INSTRUMENTS.
BILLS OF EXCEPTIONS
admission of. 1063
former evidence as, 636.
BILLS OF LADING
proof of, 1099.
BILLS OF SALE
best evidence rule, 1121.
copy of record, 1089.
corporate, proof of, 1101.
parol evidence of, 151, 1108.
parol evidence, interpretation of, 1115.
parol evidence to show nature of transac-
tion, 1118n.
proof of, 1099.
BIRTH RECORDS
proof of. 1082.
BIRTHS
church records of, admission of, 1094.
copy of foreign records of, 1091
pedigree declarations as to, 930, 931, 941.
See also, PEDIGREE.
presumption of child bearing capacity, 423.
proof of record, 262
reputation to show, 934
BITTERS
judicial knowledge as to, 353 n.
BLASTING
opinion as to, 719 n
IXDEX. (References are to Sections.)
959
BLOCKADE
evidence of existence of, 1057.
BLOCKS
municipal corporations, in, judicial notice
of, 355.
BLOODHOUNDS
tracking criminals, 797.
BLOTTER
admissions in, 547.
BOARD
charges for, account books, 990.
BOARD OF ALDERMEN
See ALDERMEN.
BOARD OF HEALTH
proof of results of, 1082.
BOAT LANDING
opinion of safety of, 699.
BODY
deceased, of, inspection of, by jury, 1137.
BONA FIDES
See Goon FAITH.
BONDS
parol evidence rule, 1108.
best evidence rule, 1121.
for appearance of witnesses. 1144.
BOND REGISTER
admission of, 1082
BOOK ENTRIES
admissions by, 547
failure to object to, 563.
See SHOP BOOKS.
BOOKKEEPERS
footings of, admissions by, 555.
BOOKKEEPING
See SHOP BOOKS.
BOOKS
See also, PUBLIC DOCUMENTS.
absence of, as negative fact, 667.
conclusions from, 799
entries in course of business. 914-924.
hearsay, as, S77.
opinion as to keeping. 717
shop books as evidence, 977-995
use by expert. S29.
use of. for matters of judicial notice, 366,
368. 369.
BOUNDARIES
declarations as to, 891, 894.
foreign government, of, judicial knowledge
as to, 330.
judicial districts, of, judicial knowledge as
to, 342.
judicial notice of, 355.
proof of, by unsworn statement, 843.
reputation to show, 874.
states and municipalities, of, judicial knowl-
edge of, 338.
BRANDY
judicial notice of, 353.
BREACH OF PROMISE
character evidence in, 1035.
BREADTH
opinion aa to, 740
BREEDERS
pedigree books, 939.
BRIBERY
court officers, of, as contempt of court, 106.
inference from bribery of witnesses, 433.
jury, as contempt of court, 106.
witnesses, of, as contempt, 109.
BRIDGE
opinion of safety of, 699.
BRIEFS OF EVIDENCE
former evidence as, 636.
BROKER
opinion of value by, 753.
BUILDERS
opinion by, 716.
BUILDING
opinion as to, 759.
skilled witness as to matters of, 385.
BULL
proof of character of. 1046.
BURDEN OF EVIDENCE
burden of evidence. 402
ancillary facts, 670.
position of burden of evidence, 403.
criminal cases, 404.
contrary views. 404
self-defence, 404.
presumption of sanity, 404.
continuance of mental state, 404.
alibi. 404
intoxication. 404.
insanity. 404
facts known to adverse party, 405.
negative facts. 406
960
INDEX. (References are to Sections.}
Burden of Evidence cont'd.
position of burden of evidence cont'd.
the sounder view, 40G.
burden of evidence not shifted, 406.
quantum of evidence required, 406
methods of proving a negative, 406.
modern instances, 406.
scope of burden of evidence, 407.
media of proof, 407.
quantum of proof required; number of wit-
nesses, 40!S.
prima facie case, 40!),
psychological constituents, 409.
criminal capacity, 409.
scope of requirement, 409.
quantum in civil and criminal cases
contrasted, 40!).
grade of offense, 40!) .
definition of " reasonable doubt," 409.
" beyond a reasonable doubt," 409.
identity of accused, 409.
not a question of evidence, 409.
statutory requirement, 409.
inertia of court, 409.
" by a fair preponderance of the evi-
dence," 409.
special inertia of the court; civil cases,
410.
suits for penalties, 410.
allegations of crime, 410.
documents, 411.
fraud, 411.
substitutes for documents, 411.
specific performance, 411.
modification, 411.
impeachment, 411.
reformation of absolute deed into trust
or mortgage, 411
equitable relief, 411.
same; intension of evidence, 411.
parol proof of contents of documents;
extention of evidence, 411.
waiver of fights under a valid instru-
ment, 411.
reformation of instrument, 411.
criminal cases. 412.
grades of ofl'enses. 412.
effect of presumptions, 413.
burden of evidence, 413
burden of proof. 413.
BURDEN OF PROOF
preliminaries to a trial by jury, 392.
burden of proof has a double meaning, 393.
position of burden of proof: who would fail
if no further evidence were intro-
duced, 394.
never shifts, 395.
common law pleading, 396.
negative allegations, 3^96.
burden on defendant, 396.
burden on plaintiff, 396.
what defenses are affirmative, 396.
Burden of Proof cont'd.
position of burden of proof cont'd.
replication, 396.
equity pleading, 397.
statutory pleading, 398.
counterclaim or set-off, 398.
actions in rem, etc., 399.
criminal cases: burden on prosecution, 400.
offense not outlawed, etc., 400.
venue, 400.
negative allegations, 400.
corpus delicti, 400.
presumption of innocence, 400.
competency of evidence, 400.
affirmative defences, 401.
insanity, 401.
BUREAUS
government, judicial knowledge as to, 334.
BURGLARY
character evidence in, 1033.
other offenses as res gestae, 839.
BUSINESS
common knowledge as to,. 359.
documents, admissions, 548.
entries in course of, !) 14-924.
judicial notice of customary methods of do-
ing, 350.
judicial notice of matters of, 360.
presumptions as to, 425.
regularity of, 425, 1007.
relations, presumption of continuance, 422.
^killed witness as to affairs of, 384.
>killed witness as to management of, 388.
opinions as to, 717.
BUSINESS DOCUMENTS
admissions in, 548
failure to object to entries in, 563.
BY-LAWS
corporate, shown by its records, 1092.
judicial knowledge'of, 329.
labor union, of, judicial knowledge of, 329.
presumption of knowledge of, 477.
BYSTANDER
sta'ement of, independent relevancy of, 843.
CABINET OFFICERS
judicial knowledge as to, 334.
judicial knowledge of signatures of, 340.
CALCULATION
damages, statement of judge as to, 128.
mathematical, admissions by, 555
CALENDARS
use of, to discover matters of judicial notice,
366
LXDEX. (References are to Sections.}
961
CANCELLATION
instrument, of, sufficiency of evidence, 411.
CANONS OF ADMINISTRATION
See ADMINISTRATION
CAPABILITY
commission of crime, of, opinion of physi-
cian as to, 709
estimate of, 737.
other occurrences to show, 1006.
CAPACITY
accused, of, quantum of evidence, 409.
child bearing, for, presumption as to, 423.
presumption of, in criminal cases, 463.
CAPTAIN
vessel, of, skilled witness as to duties, 387.
CAR
opinion of suitability of, 699.
CARBON COPIES
admission of, 1122.
CAREFULNESS
presumption of, 424.
CARPENTERING
expert opinion as to, 811.
CARRIERS
presumption of negligence of, 469.
See also, RAILROADS; STREET RAILWAYS.
CATTLE
condition of, 693
CAUSATION
opinion as to, 739.
other occurrences, 1005.
railroad accidents, of, expert evidence as to,
814.
CAUSE
death, of, opinion as to, 722.
reasonable, in case of malicious prosecution,
56.
CAUSE AND EFFECT
See CAUSATION.
CAUTION
witnesses, of, 673.
CENSUS
judicial notice of, 354, 359.
proof of, 1057
CERTAINTY
admissions, of, 530
confession, of, 5S3
law, of, rulings on facts. 60.
substantive law, to, 305.
CERTIFICATES
by public officers, 1081.
CERTIFIED COPIES
ancient documents, of, 1104.
public documents, of, 1069.
records, of, 1086.
CHANCERY
admissions in pleadings, 510.
bill in, completeness of proof of, 266.
See also, EQUITY.
CHANGE
in health, opinioi) as to, 693.
mental, opinion as to, 701.
presumption against, 416.
proof of other acts to show, 1024.
testimony of witness, in, as surprise, 281.
value, in, opinion as to, 749.
value, in, other occurrences to show, 1006.
CHARACTER
dying declarant, of, 911.
opinion of, 711.
presumption of continuance of, 421.
presumption of good, 476, 495.
relaxation in proof of, 656.
witnesses, of, 1183.
inference of conduct from character, 1025.
necessity, 1026.
relevancy, 1027.
rule stated; civil cases, 1028.
criminal cases, 1029.
quasi-criminal cases, 1030.
administrative details, 1031.
physical or mental impairment, 1032.
trait must be relevant, 1033.
inferences other than conduct; independent
relevancy, 1034.
character a constituent fact, 1035
character a probative fact, 1036.
proof of character ; reputation is character,
1037.
what witnesses are qualified; adequate
knowledge. 1038.
knowledge of the community, 1039.
remoteness in time. 1040.
absence of controlling motive to mis-
represent, 1041
animals. 1042.
probative force: reputation, 1043.
proof other than by reputation, 1044.
particular facts, 1045.
animals; illustrative occurrences, 1046.
use of to impeach witness, 1183
weight, 1047
See SIMILARITY MORAL.
CHARACTERISTICS
farm animals, of, judicial notice of, 362.
902
IXDKX. (References are to tied ions.)
CHASTITY
breach of promise,
character
in actions of
evidence in. 1035
presumption of, 470 n.
proof of, by reputation, 656.
proof of character for, 1033
want of, continuance presumed, 421.
CHATTEL MORTGAGES
copy of record, 1089.
CHECKS
identity of, 697.
CHECK STUBS
receipt of, 982.
CHEMISTRY
See also, SCIENCE.
opinions as to, 718.
skilled witness as to, 385.
CHIEF MAGISTRATE
state, of, judicial knowledge as to, 337.
CHILD BEARING
presumption of capacity for, 423.
CHILDREN
admissions by, 532.
confessions of, 585
development of, opinion of, 693.
dying declarations of, 901.
estimate of age of, 736.
leading questions to, 1172.
presumption of capacity for crime, 463.
presumption of legitimacy, 446-450.
proof of marriage by fact of, 943.
spontaneous statements by, 976.
witnesses, as, 97, 1149.
CHINESE
witnesses, as, 1159.
CHURCHES
See also, ECCLESIASTIC MATTERS.
CHURCH RECORDS
admission of, 1094.
CHURCH REGISTERS
admission of, 1004
CHURCH SESSION
privileged communications to, 1165 n.
CIGARS
judicial notice of. 358 n.
CIRCUMSTANTIAL EVIDENCE
defined. 14
direct evidence is primary as compared with
22S
Circumstantial Evidence cont'd.
direct contrasted, 14.
importance of, 14 n.
declarations as to public matters, 893.
handwriting, of, 705
inference from, 697.
pedjgree, 937, 940.
wider range of proof, 055.
CITATION
See PROCESS.
CITIES
ordnances of, see ORDINANCES.
judicial knowledge of aldermen, 341.
judicial notice of growth of, 359.
proof of ordinances, 1056.
right to jury trial, 217.
CITIZEN
corporation as, 471.
CITIZENSHIP
presumption of continuance, 419.
proof by reputation, 948.
CITY CLERK
copies of ordinances, 10SS.
record of, proof of ordinance from, 1056.
CITY COURTS
judicial knowledge of law, 330.
See also, INFERIOR COUBTS.
CIVIL CASES
acquiescence by silence in, 566.
character evidence in, 102S.
conflict of presumptions in, 496.
dying declarations not received in, 900.
hearsay rule in, 868.
judicial admissions in, 508
presumption of innocence in, 478.
presumptions of law, 445.
proof of documentary evidence in, 1099.
Milliciency of evidence, 410
CIVIL CONTEMPTS
defined, 101
See also, Coi'BT AND JURY.
defined, 111.
CIVIL ENGINEERING
See also, ENGINEERING.
opinions as to, 718.
CIVIL LAW
hearsay in. 807
presumption of survivorship in, 485.
CIVIL SERVICE COMMISSIONERS
presumption of regularity in acts of, 493.
CIVIL WAR
judicial notice of. 3f,!>.
judicial notice of historv of. 359.
. (References are to Sections.\
963
CLAIM
against decedent's estate, proof of, 1065.
other acts to show, 1014.
proof of, by unsworn statement, 843.
property, to, proof of, 539.
CLERGYMEN
privileged communications to, 1165.
CLERKS
court, judicial notice of, 343.
of court, contempt of court by, 103.
presumption of regularity of acts of, 493.
records of, 1082.
See also, COUNTY CLERKS.
CLERKS
shop book rule, 977-995
CLOSING
See OPENING AND CLOSING.
CLOTHING
judicial notice of, 358.
real evidence as, 1136, 1137.
CO-DEFENDANTS
cross examination of witnesses by, 172.
right to open and close, 160 n.
CODE PLEADING
admissions in pleadings. 509
right to open and close under, 162.
COERCION
presumption of, 462.
See DURESS.
COGNIZANCE
See KNOWLEDGE.
COHABITATION
continuance presumed, 422.
marriage proved by, 943.
presumption of marriage, 446.
COINS
identification of, 466.
identity of, 697
COKE
maxim of, considered, 44.
COLLATERAL MATTERS
elimination for expedition of trial, 304.
COLLECTION REGISTERS
receipt of, 982.
COLLECTORS
See TAX COLLECTORS.
presumption of regularity of acts of, 493.
records of. 1083.
COLONIES
judicial knowledge as to, 336.
% COLOR
evidence of, 691.
person, of, appearance in court to show,
1134.
COMBUSTION
judicial notice of laws of, 353.
COMMENTS
by judge as to propriety of law, 289.
incidental, by judge, permitted, 287.
on facts by judge, 122.
unfair, by judge, 286.
COMMERCE
judicial notice of development of, 359.
COMMERCIAL AGENCY
record of, 1093.
COMMERCIAL CENTERS
judicial knowledge of, 355.
COMMERCIAL EMPLOYMENT
value of services in, 759
COMMERCIAL MATTERS
expert evidence in, 811.
COMMERCIAL PAPER
as admissions, 549.
See NEGOTIABLE INSTRUMENTS.
COMMON CARRIERS
judicial knowledge as to, 332, 362.
See also, CARRIERS-. RAILROADS; STREET-
RAILWAYS.
COMMON KNOWLEDGE
distinguished from judicial, 317.
defined, 345.
See KNOWLEDGE, COMMON.
COMMON LAW
discretion in, 75 n.
judicial knowledge of, 322, 323.
presumption of similarity, 494.
COMMON PURPOSE
See PURPOSE.
COMMISSIONS
proof of, 1082.
COMMITTEE
proof of appointment of. 1065.
COMPARISON OF HANDS
evidence of, 775-7S7
See HANDWRITING.
964
INDEX. (References are to Sections.}
COMMITMENT
prisoner, of, record of, 1083.
COMPETENCY,
witnesses, of, action of appellate courts, 309.
COMPETENT EVIDENCE
defined, 12.
COMPLAINANT
burden of proof on. 398.
declarations of, in rape, 969.
testimony of, 1 184.
COMPLAINT
admissions by, 503-500
enforcement of contempt, 110.
COMPLETENESS
admissions, of, 531, 544, 550.
confession, of, 246, 248, 583.
demanded in administration, 244.
dying declarations, of, 899
letters, of, 550.
COMPONENT FACTS
Sec also, FACTS.
defined, 29.
COMPOUND FACTS
See also, FACTS.
simple contrasted, 27.
COMPOUNDING FELONY
evidence of attempts, 559
COMPROMISE
efforts at, 559.
COMPROMISE. OFFERS OF
offers of compromise: rule of exclusion, 574.
collateral purposes, 574.
concessions of liability received; accepted of-
fers, 575
incidental admissions of liability, 575.
liability assumed, 575
by whom compromise offer may be made;
plaintiff, 570
defendant. 576.
agent. 570
independent relevancy, 577
specific admissions, 57S
connection with compromise negotiations,
578
what offers ate for peace, 579.
function of the court, 579.
determining factors; amount suggested,
579.
time, 579.
subse<|iien1 to negotiations, 579.
prior to negotiations. 579
without prejudice; English practice, 580.
reasons for the rule; value of peace. 581.
COMPURGATION
trial by, 120.
COMPUTATION
interest, of, on a note, admissions by, 555.
CONCEALMENT
documents, of, presumption from, 442.
witnesses, of, presumption against party,
437.
CONCLUSION FROM OBSERVATION
fact
conclusions from observation, 79-2.
administrative requirements: necessity,
793.
relevancy, preliminary detail of facts. 794.
conclusions of fact: when admitted, 795.
sufficiency, 796.
bloodhounds tracking criminal, 797.
utility. 79S.
voluminous data, 799.
when rejected: conduct, 800.
inferences. 801.
suppositions, HI2.
law
conclusions of law. 80,3.
legal reasoning, 804.
when admitted. 805
intrusion upon the function of the court,
806.
when conclusion is received, 807.
CONCLUSIONS
witnesses, of, 672-087.
See also, WITNESSES.
admissions, as, 52*
dying declarations, in, 908.
found by jury, 52.
CONCLUSIVE EVIDENCE
defined. 13.
CONCLUSIVE PRESUMPTIONS
nature of, 469, 470.
CONDEMNATION
jury trial in proceedings of, 215.
burden of proof, 399
CONDITIONAL DELIVERY
parol evidence to show, 1111.
CONDITIONS
animals, of, 693.
CONDUCT
admissions by, 559-573.
agent, of, admissions by, 542.
conclusions from, 800
inference of, from character, 1025.
judicial notice of standards of reasonable,
357.
INDEX. (References are to Sections.)
965
Conduct cont'd.
opinion as to matters of, 694
presumption of intention of consequences,
475.
CONFEDERACY
proof of official papers of, 1057.
CONFESSION OF JUDGMENT
admission, as, 502
CONFESSIONS
completeness of, 246, 248.
confessions, 582
requisites of admissibility, 583.
misleading inducements, 584
hope and fear; how mental state is estab-
lished; subjective considerations,
585
objective considerations; hope, 586.
assumption of continuance, 587.
physical or mental discomfort, 588.
pain, 580
threats, 590
moral or religious, 591.
fear of death, 591
who are persons in authority, 592.
effect of arrest, 593
effect of suspicion, 594
deception, 595.
illegality, 506
self inci imination; history of doctrine, 597.
" nemo tenetur se ipsum accusare "; present
rule stated, 598
procedure and reason, 599.
knowledge and yvaiver, 600.
preliminary hearings, 601
duress, 002
form of confessions, 603.
completeness required, 24(5-248
independent relevancy. 604
introduction of confession in the evidence;
hearing on voir dire, 605.
hearing of the jury. 606.
leaving question to the jury, 607
probative force; infirmative considerations,
60S
judicial confessions, 609.
corroboration required. 610.
a que>tion for the jury, 611
judicial views, 612
specilic admissions, 613.
to whom extrajudicial confession is made,
614.
administrative detail. 615
the evolution of reason, 616
CONFIRMATION
See CORROBORATION.
CONFLICT
presumptions, of. 496
CONFLICTING EVIDENCF
does not authorize inference of fabrication,
433.
CONFRONTATIO
right of, 224.
dying declarations, 913.
waiver of right of, 225.
CONFUSION
goods, of, presumption against wrong doer,
430.
CONGRESS
judicial kmnvledge of, 341
CONJECTURE
admissions in form of, 530.
does not constitute reasonable doubt, 409.
excluded, 802.
CONNOISSEUR
opinion of value by, 759.
CONSCIOUSNESS
opinion of, 701.
CONSENT
other acts to show, 1014.
shown by silence, 566.
CONSEQUENCES
presumption of intention of. 475.
CONSIDERATION
lack of, burden of proof, 396.
parol evidence rule. 1100
CONSISTENCY
admissions, of. 530.
parties, in, compelled. 78.
CONSISTENT FACTS
probative relevancy of. 665
CONSPIRACY
other acts to show, 1016
proof of, by unsworn statement, 843.
CONSTABLES
contempt of court by, 103.
judicial knowledge of, 343.
presumption of regularity of acts of, 493.
report of, 922
CONSTITUENT FACTS
See also, FACTS.
administrative powers of court, 52.
application of law to. 42.
compound and component facts contrasted,
32
determination of, 42
judicial notice of, 351.
966
INDEX. (References are to Sections.)
CONSTITUTION
judicial knowledge of, 320
CONSTITUTIONAL LAW
power of federal judge to punish for con-
tempt, 99.
federal right to jury trial, 207
limitation on right to jury trial, 222
exclusion of public from court room, 83 n.
extension of right of jury trial, 217.
interrogation of witnesses by judge, 298.
infringement on presumption of innocence,
479.
presumption of constitutionality of statute,
429
right of cross examination of witnesses, 172.
rule as to dying declarations, 913.
statute creating presumptions, 462
statute declaring effect of facts, 37.
statutes, of, making certain facts prima
facie evidence, of others, 409.
CONSTRUCTION (INTERPRETATION)
See also, PAROL EVIDENCE; DOCUMENTARY
EVIDENCE,
contracts, of, witness not to state, 806.
documents, as question of law, 57
judicial admissions, of, 501.
law, of, presumption of knowledge of, 477.
parol evidence rule for, 1115.
presumption of similarity, 494.
words, of, evidence as to. 55
CONSTRUCTION (MECHANICAL)
firearms, of, opinion as to, 719.
mines, of, skilled witnesses as to. 389
railroads, of, expert evidence as to, 814.
railroads, of, opinion as to. 731.
street railways, expert evidence as to, 815.
street railways, of, opinion as to, 732.
telegraph lines, of, opinions as to, 733.
street railways of, skilled witnesses as to,
matters, of, 391
vessels, of, opinion as to, 718.
CONSTRUCTIVE CONTEMPT
defined, 112.
CONSTRUCTIVE PRESENCE
of judge, 113.
CONSULS
judicial knowledge of signatures and seals
of, 340 n.
CONSULTATION
attorney and witnesses, 87.
CONTEMPT
See also, COURT AND JURY.
civil and criminal. 101, 111
constructive presence of judge, 113.
direct and constructive, 112.
Contempt cont'd.
failure of witness to appear, 1147.
jury trial in proceedings, 214.
orders enforced by, 110-113.
power of appellate courts in matters of, 313.
sulliciency of evidence in cases of, 410.
violation order for separation of witnesses,
92, 93.
power of federal judge to punish, 99.
CONTINUANCE
life, presumption of. 451-461, 496
assumption of continuance of life or fear,
587.
mental state, of, presumption of, 404.
presumption of, 416-422.
CONTINUANCE (ADJOURNMENT)
See also, ADJOURNMENTS.
for judge to examine law, 333.
to meet unanticipated testimony, 281.
surprise as ground for, 276.
CONTRACTS
See also, DOCUMENTS.
account books, to show, 991.
admissions in, 548.
admissions by party jointly responsible, 536.
best evidence rule, 1121.
executed under power of attorney, proof of,
1101.
letters as, 152.
oral, construction of, as a question of law,
57, 58
oral evidence to show delivery of, 1128.
parol evidence, interpretation of, 1115.
parol evidence of, 151, 1108.
proof of, by unsworn statement, 843.
sufficiency of evidence for specific perform-
ance of, 411.
sufficiency of evidence of, cancellation of, 411.
witness not to state legal effect of, 806.
CONTRADICTION
other offenses as, 839.
proof of acts for, 1021.
writings, of, parol evidence rule, 1108-1120
CONTRADICTORY STATEMENTS
prior, of witness, 1185.
. CONVERSION
character evidence in action of, 1030.
CONVEYANCER
opinions of, 721.
CONVEYANCES
admission of records, 1084.
admissions in, 553
best evidence rule, 1121
copies of records of, 1089.
executed under power of attorney, proof of,
1101.
parol evidence rule, 1108.
INDEX. (References are to Sections.)
967
CONVICT
See also, CRIMINAL LAW.
competency as witnesses, 1156.
dying declarations of, 901.
former evidence of, 625.
records as to, 1083
CO-OWNER
admissions of, 536
CO-PARTY
admissions of, 535, 536
COPIES
ancient documents, of, 1104.
public documents, of, 1051, 1066-1079, 1085-
1091.
See also, PUBLIC DOCUMENTS.
records, of, 1085- 1091.
CORONERS
See also, INQUESTS.
contempt of court by, 106.
presumption of regularity of acts of, 493
verdict of, evidence of, 1059 n
depositions on inquest as hearsay, 866.
CORPORATE OFFICERS
proof of, 1101
presumption of continuance of tenure, 419.
CORPORATE SEAL
records of private corporations, 1092.
See also, SEAL
CORPORATIONS
act creating, as public or private, 332.
admissions by officers, 540
books and documents of, 1092.
citizenship of, 471
duration of existence, judicially known, 332
exclusion of officers from court room, 90.
judicial knowledge of by-laws, 329.
obedience to court orders, 103.
oral evidence to show officers of, 1128.
presumptions against illegality of, 495.
presumption of knowledge of by laws, 477.
presumption of continuance of incorpora-
tion, 419
piesumption of continuance of tenure of of-
fice, 419
presumption of correctness of return, 425
proof of deed executed by, 1101.
pi oof of records of, 272
reputation to show existence, 948
seal of, presumption of authority to affix,
425
subscriptions for stock, parol evidence rule,
1108
CORPUS DELICTI
acquiescence from silence to show, 566
burden of proof, 400.
c'onfession> as proof of, 610.
CORRECTNESS
presumption of, 425
CORRESPONDENCE
admissions in, 550.
opinion of, 695.
public officers, of, judicial knowledge as to,
335.
CORROBORATION
account books, of, 983
ancient documents, of, 474
burden of proof as to, 400.
confessions, of, 610.
hearsay for, 858.
of presumption of larceny from possession of
goods, 464.
other offenses as, 839, 1022
presumption of identity, of, 488
presumption of receipt of mail from mail-
ing, 427.
reputation as, 874.
unsworn statements to show, 852.
COST
basis of opinion of value, 763.
COTTON
judicial notice of value of, 351 n.
COUNSEL
See ATTORNEYS.
advice of, as defense to contempt, 101.
COUNTERCLAIM
burden of proof on, 398
COUNTIES
boundaries of, judicial knowledge of, 338.
judicial notice as to, 355
judicial notice of history of, 359.
ordinances of. See ORDINANCES.
lecords, 1082
COUNTY AUDITOR
presumption of regularity of acts of, 493.
COUNTY CLERKS
judicial knowledge of seals of. 340.
presumption of regularity of acts of, 493
records of. 1059-1065, 1082
See also, PUBLIC DOCUMENTS.
COUNTY COMMISSIONERS
judicial knowledge as to. 342
judicial knowledge of regulations of, 329.
presumption of regularity of acts of, 493
records of, 1082.
COUNTY COURTS
judicial knowledge as to. 342
presumption of regularity of acts of, 492.
968
INDEX. (References are to Sections.}
COUNTY JUDGES
presumption of regulation of acts of, 493
COUNTY OFFICERS
judicial know lodge as to, 337.
judicial knowledge of signatures and seals of,
340
presumption of regularity of acts of, 493
COUNTY RECORDS
admission of. 10S2.
COUNTY TREASURERS
presumption of regularity of acts of, 493.
records of, 1082.
COURT AND JURY
in general
a divided tribunal, 39
experiments by, out of court, 1003.
judge or juryman as witness, 1158.
proof of loss of document, 1124.
view by jury, 1139.
who should apply the law, 40
law defined, 39.
advantages to be expected, 48.
administration by the court, 52.
judge authoritatively announces rule of law,
41.
differing views, 41.
public policy, 41
confusion of law, 41.
criminal cases, 41.
double jeopardy, 41
civil cases, 41
jury ascertain constituent facts, 42.
agreed statements of fact, 47.
power to draw inferences; express author-
ity needed, 47.
effect of agreement, 47
a different view, 47
application of law to constituent facts, 43
certainty of law: rulings on facts, 60
Coke's maxim considered, 44
ad quaestionem juris non respondent jura-
tores The second division of the
rule, 44
preliminary facts conditioning admissibil-
ity, 44
collateral rulings, 44
incidental findings, 44.
function of the jury, 44
" ad quaestionem facti non respondent
judices," 44.
COURT
declarations, 902.
comparison of handwriting, 789.
construction of documents, 57.
construction of oral contracts, 58.
inferences of fact, 46
trial by inspection, 61
demurrers to evidence, 59
Court cont'd.
matters of argument, opinion or judgment,
53.
matter of law, 54.
conclusions of law, 806.
matter of law for the jury an incidental
power, 45
meaning of words, 55.
more rational expedients, 46.
special interrogatories; common law, 50.
special interrogatories: statutory, 51
object of special findings, 51.
criminal cases excluded, 51.
the use of reason, 50.
general verdicts, 45.
special verdicts; statutory, 49.
court
court and jury; court, 62.
functions of the judicial office, 63.
judicial, 64.
procedure defined, 65
rights relating tp matters of procedure,
66
substantive law may prescribe the rem-
edy, 67.
verbal metabolism, 68.
exclusive mode of proof, 68.
conclusive presumptions, 68.
statute of limitations, 68.
distinction not important, 69
the true distinction, 69
promote justice, 70.
apply practice, 71
a rule of court, 71.
administrative, 72.
field of administration, 73.
reason characteristic of administration, 74.
discretion, 75.
abuse of discretion, 75.
action of appellate courts as to matters
of discretion, 25.
absence of judge from court room, 76.
adjournments, 77.
compelling consistency in parties, 78.
exclusion of persons from the courtroom, 79.
grounds for admitting public, 80
the power for good in this connection, 80.
persistence of conditions, 81.
furnish proof or contradiction, 82.
grounds for exclusion, 83.
protect public morals, 83.
fear of violence, 83.
adjournments to avoid unwise publicity, 84.
other causes for adjournments, 84.
separation of witnesses, 85.
order not matter of right, 86.
the right to demand a separation may be
conferred by statute, 86.
what constitutes violation of order, 87.
time of motion for order, 88.
by whom motion is made, 89
to whom the order applies, 90.
in criminal cases, 90.
INDEX. (References are to Sections.)
969
Court cont'd.
separation of witnesses cont'd.
corporations as parties, 90.
court officers, jurors, and parties, 90.
enforcement of the order, 91.
consequences of disobedience, 92.
party's relation to violation, 93.
proceedings, against offending witness, 94.
direct punishment of conniving party, 94.
swearing of witnesses, 95.
method of inquiry, 96.
children as witnesses; insane persons, 97.
feeble-minded and insane persons, 97.
foVm of oath, 98.
telephone administration, 98.
executive, 99.
federal courts, 99.
protected by constitution, 99.
require order and decorum, 100.
compel obedience to directions; administra-
tive orders, 101.
jurisdiction, 101.
impossibility of performance, 101.
notice necessary, 101.
civil contempts, 101.
criminal contempts, 101.
advice of counsel, 101.
enforcement of rights, 101
attorneys, 102.
advice given in good faith, 102.
others subject to directions, 103.
compelling production of public documents,
1058.
protect the course of justice, 104.
intent not material, 104
attorneys, 105
court officers, 106.
newspapers; embarrassing the administra-
tion of justice, 107.
service of process, 108
witnesses, 100.
enforcement by contempt proceedings, 110.
civil and criminal cases, 111.
criminal contempts, 111
direct and constructive, 112
constructive contempts, 112
constructive presence of judge, 113.
judge sitting as a jury, 114
rulings of law, 1 15.
administrative questions, 110
evidence as a matter of administration, 117.
stare decisis as applied to the law of evi-
dence, 118.
blending substantive law with administra
tion, 118.
recapitulation, 119.
jury
the growth of the jury system, 120.
function of the jury; jury confined to the
issue, 121
comment on facts, 122.
English and federal courts, 123.
federal courts, 123
Court cont'd.
comment on facts cont'd.
the American minority, 124.
American majority, 125
assumption of facts, 126
refusal of assumptive instructions, 127.
uncontroverted facts, 128.
the elements of damage, 128.
weight and credibility, 129.
when comment is permitted, 130.
customary cautions, 131.
subordination of judge to jury, 132.
granting of new trials; verdicts against rea-
son or weight of evidence, 133
action of appellate courts; palpable con-
fusion, 134.
technical errors as to evidence, 135.
substantive law, 136.
English rule; harmless error, 137.
American majority, 138.
federal courts, 139.
criminal cases, 140.
a purely voluntary situation, 141.
futile legislation, 142.
technical inerrancy required, 143.
American minority, 144.
prejudice from error, 145.
taking jury's opinion, 146.
COURT CLERKS
admission of records kept by, 1082.
contempt of court by, 103.
judicial notice as to, 343.
piesumption of regularity of acts of, 493.
judicial records of, admission of, 1059.
COTTUT OFFICERS
attack on, as contempt of court, 100.
contempt of court by, 103, 106.
judicial knowledge of, 343.
not excluded from court room, 90.
COURT RECORDS
judicial knowledge of, 344.
COURTROOM
absence of judge from, 76.
adjournment to place outside of, 84.
exclusion from, 79.
COURT RULES
judicial knowledge of, 343.
matter of procedure. 71
COURTS
See also. FEDERAL COURTS; FOREIGN COURTS;
STATE COURTS.
assumption of regularity of acts of, 492.
competency of children as witnesses, 1149.
judicial knowledge of length of sessions, 342.
judicial knowledge of organi/.ation of, 342.
spoliation as an insult to. 432.
judicial records, evidence of, 1059-1065.
COURTS MARTIAL
jury trial in, 216
070
INDEX. (References are to Sections.)
COURT TERMS
judicial knowledge of, 342.
COVERTURE
admissions during, 534.
parol evidence to invalidate writing, 1114.
presumption of continuance, 419.
presumption of coverture, 462.
presumption of legitimacy of children, 446-
450.
CREDIBILITY
admissions, of, 531
medical witnesses, of, 726.
witnesses, of, comment by judge, 129.
CREMATORIES
judicial notice of operation of, 360 n.
CREW
skilled witnesses of duties of, 387.
CRIMINAL CONTEMPTS
defined, 111
civil contempts contrasted, 101.
CRIMINAL LAW
accusation in travail, 968.
;ir<|iiiescenee from silence, 566.
action by accused as innocent, 531.
admissions in, 516, 527, 529, 557.
admissions in letters, 550
admissions over telephone 556.
admissions by others as to commission of
offence, 534.
amendment of pleadings in, as ground for
continuance, 279.
burden of evidence, 404.
burden of proof, 400.
character evidence, in, 1029.
comparison of handwriting, 786.
compelling attendance of witnesses, 1145.
competency of convict as witness, 1156.
completeness of admissions, 531.
conflict of presumptions, 497.
cross examination of witnesses, 172.
declarations of complainant in rape, 969.
declarations of owner upon discovery of
crime. 973
determination of law, 41.
direction of verdict, 193.
dying declarations, 895-913.
expert evidence, H08
failure of accused to answer letter, 563.
former evidence in, 620.
general verdict in, 45.
hearsay, rule of, 868.
identity of arru>]. sufficiency of evidence of,
409
judicial admissions, 508.
new trial 140
other offences. See I!KS INTER ALIOS.
plea of guilty as admission, 502.
Criminal Law cont'd.
plea of guilty withdrawn, 525-a.
preponderance of evidence, 408.
presumption against accused for failure to
testify, 436.
presumption against wrongdoing, 495.
presumption of innocence, 478-484.
presumption from failure to call witnesses,
435.
presumption from forgery of document, 434.
presumption from spoliation, 431.
presumption of capacity for crime, 463.
presumption of coercion, 462.
presumption of good character, 470.
presumptions of law, 444.
presumptions of law, 462-468.
presumption of regularity of official acts,
493.
privilege of freedom from self-incrimination,
597-601.
probative force of admissions, 558.
proof of documentary evidence, 1099.
proof of marriage by reputation, 943.
punishment prescribed by substantive law,
67.
real evidence in, 1137.
relevancy of admissions, 532.
res gestae in, 839
right to jury trial, 211, 219.
spontaneous statements in, 967.
tracking criminals by bloodhounds, 797.
scope of burden of evidence, 412.
scope of extra-judicial admissions, 557.
separation of witnesses, 90.
shifting of burden of proof, 395.
special interrogatories, 51.
suppression of evidence in, presumptions
from, 435.
use of admissions in affidavit, 518.
use of corporate records, 1092.
waiver of jury trial, 212.
sufficiency of evidence to show in civil case,
410.
other acts, to show capability of accused,
1023.
CROPS
opinion of values of, 759, 760, Sll.
CROSS EXAMINATION
See also, WITNESSES.
a matter of procedure, 71.
handwriting expert, 78o, 791.
offensive treatment of witnesses upon, 296
opinion witnesses, of, 827.
reasoning tested on, 830
right of, 171, 172, 1174, 1175.
CROSSING
opinion of safety of, 699.
IXDEX. (References are to Sections.)
971
CUMULATIVE EVIDENCE
newly discovered, not ground for new trial,
277.
restricted for expedition of trial, 304.
CUSTODY
of ancient documents, 1103.
CUSTOM
account books to show, !J90.
business, judicial notice of, 358.
business, skilled witness as to, 384.
parol evidence of, 1115.
presumption of following, 425.
reputation to show, 874.
CUSTOM HOUSE
appraisals made by officials of, admission of,
1082.
DAMAGES
account book to show, 991.
comment by judge on elements of, 128.
multiplied, sufficiency of evidence in case
of, 410.
prescriped by substantive law, 67.
presumption against party removing proof
of, 430.
DANGER
definitions, of, 1.
manufacturing, of, skilled witnesses as to,
388.
mines, of. opinion as to. 729.
presumption of avoidance of, 424.
railroad operations, of, expert evidence as to,
814.
DATE
document, of, presumed correct, 425.
family events, of, reputation to show, 934.
identification of, unsworn statement for. 852.
letter, of, date of mailing not presumed
from. 426
ratification of treaty, of, judicially known,
327
unsworn -.tatement to show, 846
DAY BOOK
See SHOP BOOKS.
DEAF
mute as witness, 153, 155.
witnesses, 1148.
DEAF MUTE
not presumed to be idiot. 424.
DEATH
See also. DYIXG DECLARATIONS.
agent of effect on bis admissions. 541.
Death cont'd.
as justification for receipt of declaration,
883.
attesting witnesses, of, presumption of. 474.
cause of, opinion as to, 722.
hurch records of, admission of, 1094.
copy of foreign record of, 1091.
determined by inspection, 61.
expert evidence as to, 812.
fear of, as inducement to confession, 591.
husband or wife, of, effect of on competency,
1155
pedigree declarations as to, 931, 942.
presumption of, after absence for seven years,
451-401.
leputation to show, 934.
testator of, proof of, 1065.
tradition to show, 935.
witness, of, former evidence, 622.
witness, of, introduction of former evidence,
619.
witness, of, justifies secondary evidence, 234.
DEATH CERTIFICATE
authentication of, 455.
DEATH RECORDS.
proof of. 1082.
See also, VITAL STATISTICS.
DECEDENT
See also. DEATH . PROBATE.
entries in course of business by, 914-924.
statements of, 861.
DECEDENT'S ESTATE
proof of matters concerning, 1065.
DECEPTION
confession induced by. 595.
DECISION
dilatory pleas, on. as surprise, 280.
DECLARATIONS
See also. ADMISSIONS. DYINO, DECLARATIONS.
admissions distinguished. 882
against interest. S81-88S.
agent, of. to show agency 540.
entries in course of business. 914-924.
matters of public or general interest, 889-
894.
pedigree, of, 925-948.
See also. PEDIGREE.
spontaneous, 949-976
See also, RES GESTAE.
DEDICATION
evidence of, 1082.
proof of. by unsworn statements, 843.
DEEDS
See also. DOCUMENTARY EVIDENCE.
ancient documents, as. 1106.
972
INDEX. (References are to Sections.)
Deeds cont'd.
ancient, proof of, 474.
best evidence rule, 1121.
copies of foreign records of, 1090.
copies of records of, 1089.
declarations of public or general interest,
893.
executed under power, proof of, 1101.
parol evidence, interpretation of, 1115.
parol evidence rule, 151, 1108.
parol evidence to apply description in,
parol evidence to show nature of transac-
tion, 1118 n.
proof by copy, 261.
record of, 1084.
sufficiency of evidence, cancellation of, 411.
DEFINITENESS
admissions, of, 530.
evidence, of, required, 658.
DEFINITIONS
in general, 1
admissible evidence, 10.
admissions, 499.
circumstantial evidence, 14.
civil contempts. 101, 111.
common knowledge, 345.
competent evidence, 12.
component facts. 29.
composite hearsay, 872.
compound facts, 28.
conclusive evidence. 13.
constituent facts, 32.
constructive contempts. 112.
criminal contempts. 111.
danger of, 1.
demurrer to evidence, 59.
deliberative facts, 34.
direct contempts, 112
direct evidence, 14.
documentary evidence, 16.
documents, 16
event, 35.
evidence, 4, 7, 8.
" evidence.'' secondary meanings of, 22.
expert, 070, 800.
extra-judicial admissions, 526.
extra-judicial evidence, 4, 5.
fact, 23.
indefinite hearsay, 872.
judicial evidence, (i
judicial knowledge, 315.
law, 38
law of evidence, 2.
logic, fi44
logical relevancy. 36.
market value, 743.
material evidence, 15.
matter of fact, 24.
matter of law, 25.
matter of opinion, 20. 072.
Definitions cont'd.
negative evidence, 20.
negative facts, 33.
opinion, 26, 672.
oral evidence, 16.
personal evidence, 21.
physical facts, 27.
positive evidence, 20.
positive facts, 33.
practice, 71.
presumption of law, 444, 445.
prima facie cases, 409.
principal facts, 34.
probative facts, 30, 34.
procedure, 65.
proof, 7.
psychological facts, 27.
public documents, 1048.
public statutes, 332.
real evidence, 21, 1131.
relevancy, 3(5, 640-642.
reasonable doubt, 409.
reputation, 1037.
res gestae, 31, 838.
rules of evidence, 2.
simple facts, 28.
skilled witness, 713.
special knowledge, 375.
state of tilings, 35.
subjective relevancy, 36.
subscribing witnesses, 1100.
suppletory oath, 981.
testimony, 8.
value, 741.
words, of, as question of fact, 55.
DELAY
justice, of, 304.
DELIBERATIVE FACTS
defined, 34
judicial evidence in domain of, 6.
pleadings as evidence of, 505.
DEFENSES
affirmative, burden of proof, 396.
right to show, 148.
DEFENDANT
burden of proof on, 396.
offer of compromise by, 576.
right to open and close, 161.
DELIVERY
contracts, of, oral evidence to show, 1128.
goods, of, account books to show, 990.
instrument, of. parol evidence as to, 1111.
mail, of, not presumed from post mark, 426.
DEMAND
for jury trial, 218
for production of documents, 441.
proof of. by unsworn statements, 843
receipt of written, f>(>4.
I.XDEX. (References are to Sections.}
973
DEMURRER TO EVIDENCE
defined, 59.
motion for new trial equivalent to, 191.
DENIAL
proof of, by unsworn statements, 843.
DEPARTMENT REPORTS
judicial knowledge as to, 335.
DEPARTMENTS
of government, judicial knowledge as to,
334, 337.
DEPOSIT
payment of jury fees, for, 220.
DEPOSITIONS
admissions by, 515, 520
admission of, 1063.
completeness of, not necessary, 259.
former evidence, as, 636.
hearsay, as, 858, 866.
DEPRECIATION
aflVcting opinion of value, 763.
DEPUTIES
attorney-general, judicial notice of, 343.
authentication of public documents by. See
PUBLIC DOCUMENTS.
county officials, of, judicial knowledge as to,
337
county officers, of, judicial knowledge of sig-
natures and seals of, 340.
in departments of government, judicial
knowledge as to, 334, 337.
DEPUTY CLERKS
judicial notice of, 343
presumption of regularity of acts of, 493.
DESIGN
other acts to show unity of, 1016.
DESTITUTION
opinion of witness as to, 691.
DESTRUCTION
See also. SPOLIATION.
documents, of, parol evidence, 151.
documents, of, presumption arising from, 431,
439
original document, of, 1124.
DETECTIVES
testimony of, 1184.
DEVELOPMENT
child, of, opinion of, 693.
DIARY
receipt of, 982
DICTIONARY
use of, 369.
DIMENSIONS
opinion, as to, 740.
DILATORY PLEAS
decision on, as surprise, 280.
DILIGENCE
search for lost document, 1125.
DIRECT CONTEMPT
denned, 112.
DIRECT EVIDENCE
defined, 14.
circumstantial contrasted, 14.
primary as compared to circumstantial, 228.
similarity of positive evidence, 20.
DIRECT EXAMINATION
facts proved on, 156.
witnesses, of, 1172-1173.
DIRECTION
blow, of, opinion as to, 722.
opinion as to, 740.
verdict, of, 184
verdict, of, may be discussed by judge, 287.
DISBARMENT
sufficiency of evidence in. 410.
DISCHARGE
prisoner, of, record of, 1083.
proof of, 1082.
DISCLAIMER
See CLAIM
proof of, by unsworn statement, 843.
DISCRETION
abuse of, 75
appellate courts, of, 75.
judge, of. 75
judge, of, in taking judicial notice of facts,
364
punishment for contempt of court, 110.
separation of witnesses, 86
use and abuse of. 75.
See ADMINISTRATION
DISEASES
animals, of, opinions as to, 718.
expert evidence as to, 812.
judicial notice of. 358.
opinion as to permanence of, 722.
symptoms of, skilled witness as to, 390.
DISGUST
unsworn statements to show, 847
974
IX I) EX. (References fire to Sections.)
DISOBEDIENCE
contempt order, excuse for, 101.
order for separation of witnesses, 92.
1
DISORDER
exclusion from courtroom to prevent, 83.
DISORDERLY CONDUCT
contempt of court, 100.
DISORDERLY HOUSE
prosecution for, reputation in, 855.
DISPOSITION
opinion as to, 711.
DISQUALIFICATION
presumption of continuance, 419.
See also, QUALIFICATIONS.
DISSENT
unsworn statements to show, 847.
DISSIMILARITY
relevancy of, 1005, 1017, 1018.
See also, RES INTER ALIOS; SIMILARITY.
DISTANCES
geographical, judicial notice of. 355.
instructions as to use of photographs, 131.
opinion as to, 740
DISTILLED LIQUORS
judicial notice as to, 353.
See also, INTOXICATING LIQUOBS.
DISTRIBUTION
wealth, of, judicial notice of, 358.
DISTRICT ATTORNEY
confession induced by, 502.
judicial notice of, 343
DISTRICT COURTS
See also, IXFKRIOR COURTS.
presumption of regularity of acts of, 492.
DIVORCE
admissions of co-party, 536.
use of admissions in case of, 510, 5-27.
removal of disability to testify, 1155.
sufficiency of evidence, 410
DIVORCE COURTS
jury trial in, 216.
DOCKET
judicial knowledge of, 344.
justice of the peace of. 1064, 1070.
rearrangement of cases on, as ground for
continuance, 283
records of, admission of, 1083
DOCUMENTS
in general
absence of, as negative fact, 6G7.
admissions by, 515, 531, 54G-555.
authenticity of, 1099.
alteration of, presumption from, 442.
as judicial evidence, 6.
best evidence rule as applied to, 1121.
burden of evidence as to validity of, 407.
burden of evidence as to, 411.
cancellation of, sufficiency of evidence of,
411.
conclusions from, 799.
confession, 603
See also, CONFESSIONS.
construction of, as question of law, 57.
copies of public documents, 106ti-1079.
See also, PUBLIC DOCUMENTS.
court, judicial knowledge of, 344.
date of, presumed correct, 425.
declarations as to public matters, 893.
defined, 16.
destruction of, presumption, 439
documentary evidence, 16-19.
dying declarations in form of, 905.
entries in course of business, 914-924.
failure to object to entries in, 563
failure to produce, presumption from, 440.
forged. See FORGERY.
handwriting of. See HANDWRITING.
hearsay, as, 878.
identity of, 697
impeachment of, sufficiency of evidence, 411.
incorporation by reference, 255, 274.
instructions as to value of, 131.
intention of writer as question of fact, 57.
judicial, 1059-1065
loss of, justifies secondary evidence, 234.
mutilation, 442.
oral evidence distinguished, 16.
order for production of, 441
parol evidence rule, 1108-1120.
See also, PAROL EVIDENCE RULE.
pedigree declarations, 929, 933
See also, PKDKJREE.
phenomena of, 767-7t>9
prepared for offer of compromise, 574.
presumption from fabrication of. 434
presumption from spoliation of, 439, 442.
presumption of death of attesting witnesses,
474
presumption of intent from execution of,
475.
prevention of surprise from introduction of,
282
primary as compared with oral, 230.
privileged, lloO
production of, 112!)
production of. compelled. 103
public documents See PURLIC DOCUMENTS.
public records, completeness demanded, 261.
refusal to produce. 441
INDEX. (References are to Sections.)
975
Documents cont" d.
removal of, presumption from, 442.
right of opponent to read balance, 273.
secondary evidence of, 151.
shop books as evidence, 977-995.
showing death, 455.
sufficiency of evidence of alteration, 411.
to prove former evidence, 637.
trial by inspection, 01.
use, of to discover matters of judicial notice,
366, 369.
witness not to state legal effect of, 806.
private documents and writings; corpora-
tion records; photographs, 1092.
photographs or x-ray pictures, 1092.
in what proceedings admissible, 1092
how proof may be made, 1092.
commercial agencies' records, 1093.
ecclesiastical records, 1094.
memoranda. 1098.
to refresh memory : present memory, 1098.
independent relevancy : res gestae, 1098.
time of making, 1098.
as primary evidence: admissions, 1098
admissibility independent of, 1098.
probative relevancy, 1098.
nautical records, 109.5.
secret society records, 1096.
compelling adversary to produce, 1097.
Sec Pi BI.IC DOCUMENTS.
proof of original
private documents and writings; proof of
original, 1099.
best evidence of duplicate, 1122.
best evidence rule applied to, 1121.
completeness, 256-272.
secondary evidence of, 151, 152.
identification otherwise than by proof of
execution. 1099.
mode of proof: evidence to show execu-
tion. 1099.
attested writings: general rule, 1100.
number required, 1100.
sufficiency of proof, 1100.
subscribing witness; defined, 1100.
effect of admissions, 1100.
instruments executed under a power,
1101.
by trustee, 1101.
under power of attorney, 1101.
corporation deeds and writings. 1101
official sale under authority of decree
and execution, 1101.
exceptions to rule. 1102.
where attesting witness unavailable,
1102.
mode of proof, 1 102.
signature of maker, 1102.
ancient documents, 1102.
ancient
proof of, 1102.
ancient documents: admissible without proof
of execution, 1103.
Documents cont'd.
ancient cont'd.
death of attesting witness to ancient, 474.
administrative requirements; absence of
suspicion, 1103.
proof of age, 1103.
must have come from proper custody,
1103.
writings within rule; copies, 1104.
private writings, 1105.
necessity of corroborative proof; evidence
of possession, 1105.
evidence other than of possession, 1105.
effect of irregularities in execution or re-
cording, 1105.
deeds, 1106.
executed under a power, 1106.
public documents, 1107.
DOGS
animals
See also, BLOODHOUNDS.
i>e of in tracing criminal. 797.
proof of character of. 1046.
DOMESTIC LAW
as matter of fact, 25.
DOUBLE JEOPARDY
considered, 41.
DRUGS
effect on competency of witne>s, 1152.
evidence that person is under influence of,
693.
DRUNKENNESS
See INTOXICATION.
opinion of ordinary observer, 698.
presumption of continuance of habit of, 417.
DUMB
witnesses, 1148.
DUPLICATE
writings, 1122.
DURATION
corporate existence, of, judicially known, 332.
DURESS
confession induced by. 602.
inducement for confession, as a. 588.
parol evidence to show, 1112.
presumption of, 4(>'2.
unsworn statements to show, 847.
DUTIES
officers of vessel, skilled witnesses as to, 387.
presumption of due performance of, 493.
public officers, of, judicially known, 332, 335.
railroad officers, of, skilled witnesses as to,
391
street railway officers, of, skilled witnesses
as to, 391
976
INDEX. (References are to Sections.)
DYING DECLARATIONS
hearsay as secondary evidence; dying
declarations, 895.
presence of accused, 895.
administrative requirements; necessity, 896.
relevancy, 897.
subjective relevancy, 898.
completeness demanded, 899.
rule strictly construed, 900.
who are competent as declarants, 901
function of the court, 902.
expectation of death, 903.
modes of proof, 904.
form of declaration, 90").
number of dying declarations, 906.
privilege of husband and wife, 907.
scope of declaration, 90S.
weight for the jury, 909.
a discredited rule, 910.
impeachment, 911.
mental state of declarant, 912.
rule constitutional, 913.
EARNING CAPACITY
evidence of reduction of, 693.
ECCLESIASTICAL LAW
hearsay in, 867.
ECCLESIASTICAL MATTERS
skilled witness as to, 385.
admission of records, 1094.
EDUCATION
judicial notice of, 362.
EFFECT
testimony as to effect of evidence, 53.
ELECTION CERTIFICATES
admission of, 10S-J
ELECTIONS
judge, of, judicial knowledge as to, 342.
judicial notice of results of, 359.
local option, judicial knowledge as to, 332
ollices, presumption of regularity, 493.
records of. 1082.
school districts, of. records of, 1083.
time of holding, judicially known, :>:!!.
ELECTRICAL ENGINEERING
Sec a No, K\(,iM-:r.ui.\(i.
opinions as to. "is.
ELECTRICAL WIRING
opinion as to, 719 n.
ELECTRICITY
judicial notice of danger of. 357 n.
opinions as to use of, 732, 733.
EMBEZZLEMENT
other acts to show knowledge, 1012.
other offences as part of res gestae, 839.
EMINENT DOMAIN
See CONDEMNATION.
EMOTIONS
dying declarant, of, 908.
EMPLOYMENT
presumption as to, 469.
ENACTMENT
statute, of, presumption of regularity of,
429.
ENCYCLOPEDIAS
examination by jury. 367.
use of, for matters of judicial notice, 366
ENDORSEMENTS
entries in course of business, 923.
ENFORCEMENT
contempt proceedings, 110
order for separation of witnesses, 91.
orders, of, appellate courts, 314.
ENGINEER
expert evidence, SI I.
ENGINEERING
opinions as to, 718.
skilled witness as to matters of, 385.
ENGINEERING TABLES
judicial notice of, 354 n.
ENGLAND
judicial knowledge of common law of, 322.
trial by jury, 123.
ENLISTMENT
proof of, 1082.
ENTRIES
absence of, as negative fact, 667.
books, in, admissions by, 547.
ENTRIES IN COURSE OF BUSINESS
declarations in course of business, 914.
relevancy of regularity, 914.
English rule. 91.").
American rule, 916.
administrative requirements; necessity, 917.
subjective relevancv ; adequate knowledge,
91S
absence of controlling motive to misrepre-
sent, 919
contemporaneousness required, 920.
regularity, 921
form of statement, 922.
written, 923
nature of occupation, 924.
See SHOP HOOKS.
INDEX. (References are to Sections.}
977
EQUALIZATION BOARDS
presumption of regularity in acts of, 493.
EQUIPMENT
farm, of, opinion of value of, 757.
mines, of, opinion as to, 729.
railroads, of, expert evidence as to, 814.
railroads, of, opinion as to, 731.
railroads, of, skilled witnesses as to, 391.
street railways, of, expert evidence as to,
815. "
street railways, of, opinion as to, 732.
street railways of, skilled witnesses as to,
391.
telegraph lines, of, opinions. as to, 733.
vessels, of, opinion as to, 718.
EQUAL PRIVILEGES
allowed parties, 657.
EQUITY
admissions by co-party in, 536.
admissions in pleadings, 510.
burden of proof, 397.
burden of evidence as to, 411.
completeness of proof of pleadings in, 265,
200.
discretion in, 75 n.
judicial knowledge of state . common law
courts, 323.
judicial knowledge of rules and principles of,
322.
jury trial in, 207, 216.
parol evidence to show mistake, 1117.
presumption from failure to call witnesses,
435.
sufficiency, of evidence in, 41.
ERROR
granting new trials, 134.
ESCAPE
attempts to, 559.
jail, ffom, by accused, 557.
ESTIMATES
estimates, 734.
administrate e requirements, 735.
age, 730.
capabilities: animate objects, 737.
mechanical, 73S.
causation, 739
dimensions, speed, weight, etc., 740.
of value, 748.
See EXPERTS.
ESTOPPEL
claim to jury trial, of. 223.
claim of death after absence, 455.
EVENTS
states distinguished. 35
order of. presumption of regularity of. 491.
EVIDENCE
admission of may be discussed by judge, 287.
burden of. See BURDEN or EVIDENCE.
defined, 4-8.
detiniteness required, 658.
demurrer to, 58.
elicited by judge, 298.
explanation of, by judge, 131.
illegally obtained, 226 n.
hearsay, as, 866.
improper latitude in meeting, 302.
judicial and extra-judicial, 4, 5, 6.
law of, defined, 2.
matter of administration, as, 117.
new trial for newly discovered, 277.
perception, by, 229.
preponderance of, 308.
proof contrasted, 7.
right to produce, 148 et al.
See also, ADMINISTRATION.
restricted to expedite trial, 304.
scope of law of, 3.
secondary waivings of, 22.
subdivisions of evidence, 9.
admissible evidence, 10.
competent evidence, 12.
best and secondary evidence, 11.
conclusive evidence, 13.
direct and circiunstantial evidence, 14,
655
material evidence, 15.
oral and documentary evidence: document
defined, 16
difficulty of removal, 17.
symbolical representations of thought,
18.
proper scope of documentary evidence,
19.
positive and negative evidence, 20.
real and personal evidence, 21.
testimony distinguished, 8.
variations in order of, 164.
See FACTS.
EVIDENTIARY FACTS
principal facts distinguished, 34.
EXAMINATION
parties, of, compulsory. 1134.
restricting length of, 304.
witnesses, of, 1171-1179.
See also, WITNESSES.
EXAMINED COPIES
public documents, of, 1068.
ancient documents, of, 1104.
EXCEPTIONS
See BILLS OF EXCEPTIONS.
EXCLUSION
persons from courtroom. 79-83.
INDEX. (References are to Sections.)
EXCUSE
disobedience of contempt order, 101.
EXECUTION
documents, of, presumption of intent from,
475.
documents, of, proof of, 1099.
ancient document, of, proof of, 474.
lost document, of, proof of, 151.
EXECUTION BOOK
admission of, 1083.
EXECUTIONS
admissions in returns upon, 552.
admission of, 1063.
deed under, proof of, 1101.
proof of, 270.
EXECUTIVE
documents, completeness required in proof of,
2(52.
presumption of regularity of acts of, 493.
executive function of court, 99-113.
judicial knowledge of acts of, 336-340.
powers of judge, 99.
state, of, : udicial knowledge as to, 337.
EXECUTORS
admissions by, 537.
proof of acts of, 1065.
proof of deed executed by, 1101.
EXEMPLIFICATIONS
proof of public documents by, 1067.
EXHAUSTION
evidence of, 693.
EXISTENCE
corporate, reputation to show, 948.
law, of, judicial knowledge of, 326.
martial law, of, judicial knowledge of, 336.
record, of, determined by inspection, 61.
EXPECTATION
witness stating, liT.'!.
EXPEDITION
trials, of, 304.
EXPENSE
opinion as to, 740.
EXPERIENCE
judicial notice of buman, 356
witnesses, of, instructions as to, 131.
EXPERIMENTS
evidence of, 1003. 113S.
EXPERTS
in general
general position of skilled witness, 713
Experts confd.
ambiguity of terms, 676.
conclusions and judgment of, 685.
fees, 1146.
use of, 175.
reasoning by skilled witness, 684.
who are skilled witnesses, 684.
witnesses not, 382.
proof of laws of nature, 353.
proof of matters judicially known, 370.
use of, on rebuttal, 175.
ordinary and skilled observers; differentia-
tion by subject-matter; what topics
are technical, 714.
necessity and relevancy, 715.
architects and builders, 716.
business affairs, 717.
technical matters. 718.
mechanic arts, 71!)
linger prints and tracks, 720.
handwriting, on. See HANDWRITING.
title to real estate, 721
medical inferences, 722
basis of inference. 722.
qualifications of witnesses, 723.
detail of constituting facts, 724.
who is qualified, 725
probative weight, 726.
province of the jury, 726.
results of autopsy, 727.
ordinary observers. 727.
military affairs, 728
mining matters. 720.
photographic art, 730.
railroad matters; qualifications, 731.
protecting the jury, 731.
special training, 731.
preliminary detail of constituting facts,
731.
street railways, 732
telegraphing, 733.
value, 740, 753-755. 750-763.
judgments of
judgments, 808.
criminal cases, 808.
an obvious administrative danger field of
the expert, 809.
admissihility a question of administration,
810.
illustrative instances of judgments, 811.
to show common knowledge, 361, 370.
medicine, H12.
as to insanity, 709
mining matters, 813
railroad matters, 814
trolley and street railways, 815.
hypothetical questions
the hypothetical (uiestion. 816
conclusion and judsment, 817.
form of question, 818
substantial correctness required. 818.
must include all facts essential to some rele-
vant hypothesis, S10.
INDEX. (References are to Sections.)
Experts cont'd.
must include all undisputed material facts,
820.
facts must be plausibly proved, 821.
general assumptions, 822.
administrative details. 823.
EXPIRATION
agency, of, admissions by agent, 540.
EXPLANATION
admissions, of, 516. 558.
failure to c-all witnesses, of. 435.
flight of accused, of, 550.
parol evidence rule for. 1115.
possession of stolen goods, of, 465.
proof of other acts for, 1022.
spoliation, of, 439.
EXPLANATORY FACTS
relevancy of, 666.
EXPRESS COMPANIES
judicial notice as to, 362.
EXPRESS MALICE
See MALICE.
EXTRAJUDICIAL ADMISSIONS
See ADMISSIONS.
EXTRAJUDICIAL EVIDENCE
defined, 4. 5.
distinguished from judicial evidence, 4.
FACTS
See also, COURT AND JURY.
admissible. 664-671.
admissions of, 528.
assumption of, 126
comment on, by judge. 122, 128.
conclusions of, 705-802
constitutionality of statute declaring effect
of certain facts, 37.
defined. 23
uniformity. 1024
common knowledge of See KNOWLEDGE,
COMMON
matter of fact. 24
matter of law, 25,
matter of opinion, 26.
classification of facts, physical or psycho-
logical, 27
simple and compound. 28
component facts. 20.
component and probative. 30
res gestae and constituent. 31
com pound, component, and constituent, 32.
positive and negative. 33.
principal and probative, 34
states and events, 35.
Facts cont'd.
anomaly of code pleading, 34.
probative or evidentiary fact (factum pro-
bans), 30.
standpoint of the law of evidence, 35.
relevancy, 36.
uncontroverted, 128.
FAILURE
to call witnesses, presumption from, 435.
to produce documents, presumption from,
440.
to see or hear as negative evidence, 667.
FALSEHOOD
admissions by making, 565.
FALSE PRETENSES
other acts to show knowledge, 1012.
other offences as part of res gestae, 839.
FALSE SWEARING
See PERJURY.
FAMILY
pedigree statements of members of, 925-
948
FARMING
equipment, opinion of value of, 757.
expert evidence in, 811.
opinions as to, 718.
skilled witness as to matters of, 385.
FARMS
judicial notice of matters of, 362.
FEAR
inducement to confession, as an, 585.
opinion as to, 711.
unsworn statements to show, 847.
FEDERAL COMMISSIONERS
judicial knowledge as to. 342
FEDERAL COURTS
admissions in pleadings used in, 512.
comment by judge on evidence, 123.
granting new trial, 130.
judicial knowledge as to jurisdiction of, 342.
judicial knowledge of law, 322.
judicial knowledge of seal of, 344.
judicial knowledge of messages of governor,
337
judicial knowledge of signatures by, 340
judicial knowledge of signature and seal of
state courts. 344
judicial knowledge of written laws. 326.
judicial knowledge ,>f written law, 328.
officials of. judicial knowledge of, 343.
proof of records of, 1072
power to punish for contempt. 00.
FEDERAL OFFICERS
judicial knowledge as to. 334
presumption of continuance of tenure, 419.
presumption of regularity of acts of, 493.
980
INDEX. (References are to Sections.)
FEDERAL RECORDS
admission of, 1082.
FEEBLE-MINDED
confessions of, 585.
opinion of ordinary observer as to. 702.,
persons as witnesses, 97.
FEES
expert witnesses, 11415
county clerk of, record to show, 1082
payment of jury, deposit, 220.
witness, 1146.
FELLOW SERVANT
other acts to show knowledge of incom
petency, 1012.
FELONY
See COMPOUNDING FELONY.
FERMENTED LIQUORS
judicial notice of. 353.
See also, INTOXICATING LIQUORS.
FIDUCIARIES
admissions by, 537. 538.
account books of, 992
wrongdoing not presumed, 495.
FIELD NOTES
declarations of public or general interest,
893
FIGURES
evidence of meaning of, 807
opinion of genuineness of. 764.
FILES
justice of the peace, of, 1064
FILIATION
character evidence in, 1030.
See also, BASTARDY.
FINANCIAL CONDITIONS
evidence of. <!'.)!
reputation to show, 874.
FINDINGS
judge sitting s i'H'.v, 114.
special, 51.
FINDINGS OF FACT
action of appellate courts, as to, 307.
FINE ARTS
judicial notice of. 35*
FINGER PRINTS
opinion as to, 7 - 2<>.
FIREARMS .
experiments us to >< of. 113S
use of, skilled witnesses as to, 388.
See also, WEAPONS.
FIRE INSURANCE
expert evidence as to, 811.
See also, INSURANCE.
FLAG
foreign countries, of, judicial knowledge as
to, 336.
FLIGHT
accused, of, 557, 559.
FOETUS
opinion as to indications of, 692.
FOOD
expert evidence as to, 812.
judicial notice of, 358.
FOOTINGS
bookkeepers, of, admissions by, 555.
FOOTPRINTS
identification of, 095, 697.
FORCE
blow, of, opinion as to, 722.
judicial notice of la\\s of, 353.
opinion of effect of, 731).
FOREIGN CITIES
judicial notice, of, 355.
FOREIGN CORPORATIONS
presumptions against illegality of, 495.
FOREIGN COUNTRIES
copies of records of, 1091.
judicial knowledge as to, 336.
judicial knowledge of laws of, 323, 329.
judicial knowledge of treaties with, 327.
skilled witness as to law of, 386.
FOREIGN COURTS
judicial knowledge as to. 342
proof of record of, 1079.
FOREIGNER
as witness, 153.
FOREIGN GOVERNMENTS
judicial knowledge of recognition of, 336.
FOREIGN LANGUAGE
document in, 57.
FOREIGN LAW
completeness of proof of, 263.
evidence of. 1055.
judge acquiring knowledge of, 333.
presumption against charge, 419.
presumption of knowledge of, 477.
presumption of similarity with domestic,
494
proof of. lil
f|iicstion of fact, 25
skilled witness as to, 386.
LNDEX. (References are to Sections.)
981
FOREIGN MINISTERS
judicial knowledge as to, 334.
FOREIGN RECORDS
copies of, 1091.
FOREIGN STATES
evidence of statutes of, 1055.
judges of, judicial knowledge as to, 342.
judicial knowledge of courts of, 342.
judicial knowledge of statutes of, 329.
proof of judgment of, 01
proof of judicial records of, 1073.
records of, copies, 1090.
skilled witness as to law of, 386.
FOREIGN STATUTES
judicial knowledge as to, 332.
judicial knowledge of federal courts as to,
328.
See also, FOREIGN LAW.
FORFEITURE
privilege as to self-iiKTimination, 1179.
sufficiency of evidence in actions for, 410.
FORGERY
See also, SPOLIATION.
other acts to show knowledge, 1012.
other offences as res gestae, .839.
presumption from, 434
FORM
confessions, of. 003.
declaration as to matters of public or gen-
eral interest, 8!)3.
dying declaration, of, 905.
hearsay, composite of, 870.
hypothetical question, of, 818.
judicial admissions, of, 502.
oath, of. 18.
object, of. description of by witness, 691.
pedigree declaration, of, 933.
spontaneous declaration, of. 959.
unsworn statement, of, 853.
FORMER EVIDENCE
former evidence, 017.
administrate attitude of the court, 618
adequate necessity, 619
failure to summon, 619.
absence from jurisdiction, 620.
claim of privilege against self-incrimina-
tion, 621.
death, 022
imprisonment, 623
inability to find, 624.
infamy, 625.
interest, 626
mental incapacity, 627.
official duty, 628".
physical incapacity, 629
former trial. 030.
Former Evidence cont'd.
the hearsay rule, 631
identity of the issue, 632.
identity of the parties, 633.
scope of proof; extension, 634.
intension ; precision in recollection, 635.
media of proof; official documents, 636.
unofficial documents; memoranda, 637.
stenographers, 638
witnesses ; independent relevancy, 639.
completeness, 254.
admissions by, 516.
FORMER JEOPARDY
See DOUBLE JEOPABDY.
FOX'S LIBEL ACT
authorizing general verdicts, 45.
FRATERNAL SOCIETIES
records of, 1096
FRAUD
character evidence in, 1033.
effect of, on confession, 595.
opinion as to, 712
other acts to show intent, 1011.
parol evidence to show, 1112.
presumption against. 495
presumption against spoliator, 430-443.
presumption from suppression of evidence,
435-443
spoliation of goods stolen. 465.
sufficiency of evidence, 411.
FRAUDULENT REPRESENTATIONS
parol evidence to show, 1112.
FREIGHT
carriage of, skilled witnesses as to, 391.
judicial notice as to, 362
FRIENDS
party, of, admissions by, 540.
pedigree statements by. !V2S
FRIENDSHIP
unsworn statements to show. Sol.
FRIGHT
horse, o f , opinion as to. 694, 711, 739 n.
FUNCTIONS
judicial office, of, 03-113
G
GAMING
judicial notice of, 358
GAS
udicial notice of characteristics of, 353.
982
INDEX. (References are to Sections.}
GAZETTE
judicial knowledge of, 335.
GENEALOGY
declarations as to, 925-948.
reputation to show, 934.
tradition to show, 935.
See also, PEDIGREE.
GENERAL AGENCY
See AGENCY.
GENERAL GUARDIAN
admissions by, 537.
GENERAL VERDICTS
See VERDICTS.
GENTLENESS
animals, of, opinions of, 711.
horse, of, proof of, 1046.
GENUINENESS
documents, of, burden of evidence of, 407.
map, of, 1082.
public documents, of, 1053, 1054.
signature, of, presumption of, 425.
GEOGRAPHY
judicial notice of facts of, 354, 355
use of, books of, 369.
GIN
judicial notice of, 353.
GLOSSARIES
use of, 369.
GOOD FAITH
assumption of, 478.
offer of compromise to show, 577.
opinion as to, 712
other acts to show, 1014.
reputation of defendant in malicious prose-
cution, 1036.
unsworn statements to show, 847, 852
GOODS
identification of, (i!>7.
GOVERNOR
judicial knowledge as to, 337.
judicial knowledge of appointment by, 334.
judicial kno-.vledge of seal of, 340.
messages of. judicial knowledge as to. :537.
presumption of regularity in acts of, 493.
proclamations of, judicial knowledge as to,
337.
GRADE
offense, of, sufficiency of evidence, 409.
opinion as to, 740.
GRAMMARS
use of. 369
GRAND ASSIZE
trial by, 120.
GRAND JURORS
competency as witness, 1158.
judicial knowledge as to, 342.
judicial knowledge of time of meeting, 342.
privilege of testimony before, 1168:
GRAND JURY CLERK
presumption of regularity of acts of, 493.
GRANTOR
admissions by, 539.
GRANTS
records of, 1082, 1087.
lost, 472.
See also, DEEDS.
GRAVESTONES
proof of death by, 942 n.
GRAVITATION
judicial notice of laws of, 353.
GRIEF
opinion as to, 711.
GUARDIAN
proof of acts of, 1005.
proof cf deed executed by, 1101.
GUARDIAN AD LITEM
admissions by, 537.
GUESS
witness stating, 673.
not permitted, 181.
when permitted, 658
GUILTY
effect of withdrawn plea of, 525-a.
GUNS
See WEAPONS.
H
HABEAS CORPUS
for production of witness, 1143.
HABITS
account books to show, 990.
animals, of. skilled witness as to, 389.
opinion of, 6!)4
presumption as to. 424.
presumption of continuance, 417.
presumption of following, 425.
proof of, 1007.
reputation to show. $~4.
INDEX. (References are to Sections.)
983
HANDWRITING
proof by direct evidence, 764.
proof by secondary evidence; circumstantial,
765.
characteristics of handwriting, 766.
phenomena of documents, 767.
preliminary detail of fact, 767.
typewriting, 767.
who are qualified as witnesses, 768.
age of alterations, 769.
inference from observation, 770.
ordinary observer; qualifications; seeing per-
son write, 771.
adoption in course of business, 772.
special experience, 773.
skilled observer; qualifications required, 774.
comparison of hands, 775.
qualifications must be affirmatively proved,
770.
requirements, 777.
English rule, 778.
American rule, 779.
witness to comparison rejected, 780.
witness to comparison accepted, 781.
statutory modifications, 782.
irrelevant document, 782.
proof of standard, 783.
proof, 784.
testing on cross-examination, 785.
proof in criminal cases, 786.
standardizing document, 787.
probative weight of the inference, 788.
function of the court, 789.
inference a reasoned one, 790,
tests furnished by cross-examination, 791.
HATRED
unsworn statements to show, 847.
HEALTH
See also, PUBLIC HEALTH.
evidence of, 691, 693.
opinion as to effect of acts, 700.
HEARING
failure to hear as negative evidence, 667.
loss of, by witness, former evidence, 629.
time and place of, as surprise, 283.
HEARSAY
hearsay rule as a distinctive anomaly; scope
of the anomaly, 837.
account books, 977-995.
See also, SHOP BOOKS.
affected by best evidence rule, 242.
character,' 1025-1047.
See also, CHARACTER.
declarations against interest, 880-888
declarations as to matters of public or gen-
eral interest, 889-894.
definition of, 872.
entries in course of business, 914-924.
former evidence as exception to, 617-630.
Hearsay cont'd.
form of hearsay, 872.
individual hearsay, 872.
com posite^ hear say, 872, 873.
reputation, 874.
rumor, 875.
tradition, 876.
printed, 877.
written, 878
official statements; admissions, 879.
withdrawn plea of guilty, 525-a.
hearsay rule stated, 859.
understanding, 859.
opinion, 859.
telephone communications, 859.
official duty, 859.
a controlling rule; an absolute bar, 860.
statutory exceptions, 861.
hearsay memoranda refreshing memory,
862.
implied hearsay, 863.
knowledge based on reputation, 864.
testimony based on hearsay, 865.
joint knowledge, 865.
latitude of party in meeting, 302.
market value, as to, 744.
pedigree declarations, 925-948.
See also, PEDIGREE.
proof of value by, 744.
reasons for hearsay rule; inherent weakness,
866.
distrust of the jury; hearsay in other
judicial systems, 867.
relevancy of hearsay, 869.
objective relevancy, 870.
subjective relevancy, 871.
res gestae statements. See RES GESTAE.
scope of hearsay rule, 868.
shop books, 977-995.
spontaneous exclamations, 949-976.
See also, RES GESTAE.
unsworn statements : hearsay, 857.
independently relevant statements and
hearsay declarations contrasted.
857.
antiquity of rule, 858.
corroboration, 858.
depositions, 858.
See also, DECLARATION'S; DYING DECLABA-
TIOXS; FORMER EVIDENCE.
HEAVENLY BODIES
judicial notice of movements of, 354.
HEIGHT
opinion as to, 740.
HIGHWAY
opinion of safety of. 099.
presumption of continuance of, 418.
984
INDEX. (References are to Sections.)
HISTORIES
examination by jury, 367.
use of, 360, 369.
HISTORY
See also, NATURAL HiSTOBr.
family, See PEDIGREE.
jury system, of, 120.
judicial notice of, 359.
self-incrimination, 597.
HOMICIDE
character evidence in, 1029, 1033.
dying declarations in, 895-913.
other acts to show intent, 1011.
other offenses, evidence of, 839.
presumption of malice, 46S.
reputation of deceased, 103G.
spontaneous statements in, 967.
HONESTY
proof of character for, 1033.
HOPE
inducement to confession, as a, 585.
HORSES
conditions of, (593.
fright of, opinion as to, 694, 739 n.
opinion of value of, 760.
proof of gentleness of, 1046.
HOURS
judicial notice as to, 353.
HUSBAND AND WIFE
See also, DIVORCE COURTS.
d\ing declarations, 907.
pedigree statements by, 925948.
presumption of access, 447.
presumption of coercion, 462.
presumption of continuance of relation, 419.
presumption of legality of marriage, 446.
presumption of legitimacy of children, 446-
450.
privileged communications between, 1160.
statements of wife in presence of husband,
569.
witnesses, as, 1155.
HUMAN EXPERIENCE
judicial notice of, 356.
HYDRAULIC ENGINEERING
See JI|M>. K N( I MI. KING,
opinions as to, 718.
HYPOTHETICAL QUESTIONS
See EXPERTS.
IDENTIFICATION
crime, of, confession, 583.
documents, of, 1099.
dying declarations to show, 908.
opinion of, 0!)6.
parties, of, parol evidence rule, 1118.
proof of other acts for, 1023.
speaker, of. over telephone, 556.
stolen goods, of, 466.
unsworn statements to show, 846, 852.
IDENTITY
accused, of, sufficiency of evidence, 409.
account book, of, 987.
actor, of, 1023.
appearance in court to show, 1134.
articles, of, 1137.
opinion as to, 695, 740.
parol evidence of identity of parties to docu-
ments, 1118.
pedigree declarations as to, 931.
person making admissions, of, 530.
person talking over telephone, 656.
presumption of, from similarity of name, 488.
proof of, 656.
res gestae, 846.
IDIOCY
See also, INSANITY.
competency of witnesses, 1150.
determined by inspection, 61.
shown by inspection, 1134.
deaf mute not presumed to be idiot, 424.
IGNORANCE
fact of, as evidence of non existence, 667.
ILLEGALITY
effect of, on confession, 59(5.
evidence obtained illegally, 226 n.
presumption against, 495.
parol evidence to show, 1113.
IMBECILITY
presumption of continuance, 421.
IMMORALITY
presumption against, 4!)5.
IMPEACHMENT
dying declarants, of, 911.
formal instruments, of, sufficiency of evi-
dence, 411.
former evidence, of, (US.
judicial proceedings, 492.
of agent by evidence of his statements, 543.
other offenses as. ^'39.
witnesses, of. 1180-11*5.
See also, WITNESSES.
unsworn statements to show, 852.
INDEX. (References are to Sections.)
985
IMPOSSIBILITY
See also, POSSIBILITY.
performance of order as excuse for contempt,
101.
IMPOTENCY
rebuttal of presumption of legitimacy, 448 n.
IMPRESSION
witness stating, 673.
unsworn statements to show, 847.
IMPRISONMENT
witness of, former evidence of, 623.
IMPROPER EVIDENCE
right to offer, when other party has done
so, 657.
INCAPACITY
party to contract, of, parol evidence to show,
1114.
witnesses, of, 1149, 1150.
INCIDENTAL HEARINGS
jury trial in, 213.
INCOME
opinion of amount of, 691.
INCOMPETENCY
proof of, to invalidate writing, 1114.
INCOMPETENT EVIDENCE
latitude by party in meeting, 302.
INCONSISTENCY
conduct, of, admissions by, 554.
INCONSISTENT FACTS
probative relevancy of, 665.
INCORPORATION
municipalities, of, declarants as to, S94.
presumption of continuance, 419.
INCORPORATION BY REFERENCE
completeness, 255, 274.
INDEBTEDNESS
school districts of, records of, 1083.
conclusion of witness as to, 805.
oral evidence to show, 1128.
INDEFINITE HEARSAY
definition of, 872.
INDEPENDENT RELEVANCY
admissions by agent, 543.
book entries, of, 547.
confessions, 604.
declarations of complainant in rape, 971.
evidence of character, 1034.
evidence of silence, 564.
Independent Relevancy Cont'd.
offers of compromise, 577.
private writings, of, 1098.
proof of documents, 273.
See also, ADMINISTRATION.
unsworn statements, of, 838-856.
INDIANA
special interrogatories in, 50, 51.
INDIANS
judicial knowledge of treaties, 327.
witnesses, as, 1159.
INFAMY
witness, disqualified for, former evidence,
625.
INFANCY
parol evidence rule, 1114.
INFANTS
See also, CHILDREN.
admissions by, 532.
age of, determined by inspection, 61.
dying declaration of, 901.
witnesses, as, 97, 1149.
presumption of capacity for crime, 463.
INFERENCE FROM SENSATION; ORDI-
NARY OBSERVER
inference from sensation; ordinary observer;
familiar physical objects, 688.
negative inferences, 689.
instinctive inferences, 690.
leasoned inferences, 691.
conditions of admissibility of inferencea from
observation, 692.
physical inferences; body, 693.
conduct, 694.
identities and correspondences, 695.
how far reasoned inference is essential,
696.
circumstantial evidence, 697.
other tracks, 697.
other correspondences, 697.
footprints, 697.
intoxication, 698.
physical condition of inanimate objects,
699.
suitability, 699.
soundness, 699.
safety of public places, 699.
physiological inferences, 700.
psychological inferences, 701.
insanity; ordinary observer rejected; Massa-
chusetts rule, 702.
rule in Xew York, 703.
ordinary observer admitted, 704.
qualification of abilil^v to state details of
phenomena, 705.
qualification of suitable opportunities
for observation, 706.
986
INDEX. (References are to Sections.)
Inference from Sensation: Ordinary Ob-
server cont'd.
insanity; ordinary observer rejected cont'd.
qualification of ability to coordinate
phenomena, 707.
judicial estimates as to probative force,
708.
skilled observer, 70!).
inferences of sanity, 709.
subscribing witness, 710.
an anomalous position, 710.
marked administrative indulgence, 710.
probative force, 710.
objective mental states, 711.
administrative requirements, 711.
intuitive and reasoned inferences, 711.
animals, 711.
self -regarding states, 711.
psychological states regarding others, 711.
disposition, 711.
inference rejected, 712
psychological states not subject to direct
observation, 712.
subjective relevancy, 712.
lack of objective relevancy, 712.
facts may be placed before the jury,
712. '
INFERENCES
drawn from existence of document, 57.
witnesses, of, 672-687.
See also, WITNESSES.
INFERIOR COURTS
attorneys of, judicial notice as to, 343.
clerks of, judicial knowledge of, 343.
contempt of court, 103.
judicial knowledge as to, 342.
judicial knowledge of, 330.
judicial knowledge of practice of, 343.
presumption of regularity of acts of, 492, 493.
INFLUENCE
See UNDUE INFLUENCE.
INITIALS
presumption of identity from similarity, 488.
INJURIES
animals, of, opinions as to, 718.
appearance of. 693.
cause of, opinion as to, ~'1'1. 739.
declarations upon receiving, 974.
experiment as to extent of, 1138.
expert evidence as to, 812.
inspection to show, 1134.
results, of, (593.
INKS
opinion as to, 7(59.
INNOCENCE
presumption of, 400, 478^84, 498.
INNUENDO
counsel, of, restricted, 297.
INQUESTS
judicial knowledge as to courts of, 342.
See also, CORONERS.
INQUISITION
trial by, 120.
INSANITY
admissions by insane party, 532, 534.
accused of, burden of proof of, 400, 401.
burden of evidence as to, 404.
competency of witnesses, 97, 1 150.
confessions of insane persons, 585.
dying declarations of incompetents, 901.
evidence of, declarations of family, 656.
expert evidence as to, 812.
inspection to show, 1134.
opinion of ordinary observer as to, 702.
opinion of physician as to, 709, 722.
presumption of capacity for crime, 463.
presumption of continuance, 404, 421.
presumption of mental condition, 421.
skilled witness as to, 709.
spontaneous declarations of insane person,
976.
swearing insane witness, 97.
unsworn statements to show, 847.
witness, of, former evidence, 627
witness, of, introduction of, former evidence,
til!).
witness, of, introduction of, former evidence,
INSOLVENCY
conclusion as to, 795.
opinion as to, 691.
presumption of continuance, 416, 422.
INSPECTION
See also, PERCEPTION, EVIDENCE BY.
trial by, 61.
INSTRUCTIONS
See COURT AND JUBT.
INSULTING LANGUAGE
contempt of court, 100.
to witnesses, as contempt, 109.
witnesses by counsel, of, prevention of, 295.
INSURANCE
admissions in application for, 548.
expert evidence as to, 811.
judicial notice of, 362.
opinion as to matters of, 718.
policies, proof of, 1099.
skilled witness as to matters of, 385.
INTELLIGENCE
determined by inspection, 1134.
IXDEX. (References are to Sections.)
987
INTENT
criminal cases, burden of proof as to, 400.
admissions by agent to show, 543.
as res gestae, 848.
evidence of reputation, 1036.
obstruction of justice, 104.
other acts to show, 1011.
presumption of continuance of, 421.
proof of by admissions, 557.
proof of, 559.
INTENTION
admission by agent to show, 543.
consequences, presumption of, 475.
presumption of continuance of, 421.
proof of, 559.
testimony of person as to, (>56.
unsworn statements to show, 848.
writer of document, as question of fact, 57.
INTEREST (ON MONEY)
presumption of rate in foreign state, 61.
computation of, on a note, admissions by,
555.
INTEREST (OF PERSONS)
disqualification of witness. 626, 1157.
declarations against, 880-888.
unsworn statements to show, 848
INTEREST
witnesses, of, 1184.
INTERNAL REVENUE
judicial knowledge of regulations of bureau
of, 339 n
INTERNATIONAL LAW
judicial knowledge of, 324.
INTERPRETATION
contracts, of, witness not to state, 806.
documents, as question of law, 57.
words, of, evidence as to, 55.
writing, of, parol evidence rule for, 1115.
INTERPRETER
admissions through, 543.
qualifications of, 154.
use of, 153, 154, 1148.
INTERROGATION
witnesses, of, by judge, 298.
INTERROGATORIES
admissions in answers, 519.
special, 50, 51.
statutory, completeness of proof of, 266, 267.
INTERSTATE COMMERCE COMMISSION
judicial knowledge as to, 339 n.
INTIMIDATION
witness, of, as contempt of court, 109.
witnesses, of, when proper, 297.
INTOXICATING LIQUORS
burden of evidence as to want of license, 406.
character evidence of peacefulness of accused,
1033.
judicial knowledge of characteristics of, 353.
jury trial in proceedings for destruction of,
215.
other offenses to show knowledge of illegal
sale of, 1012.
statutes as public or private, 332.
INTOXICATION
as contempt of court, 100.
burden of evidence as to, 404.
confession of persons under, 585.
opinion of ordinary observer, 698.
presumption of continuance, 416.
presumption of continuance of habit of, 417.
proof of, to invalidate writing, 1114.
that person is customarily, 694.
witness, of, 1151.
INVENTORIES
admissions in, 552.
estate of, proof of, 1065, 1082.
INVOLUNTARY CONFESSIONS
See CONFESSIONS.
INVOLUTION
reasoning by witnesses, of, 676.
IRRESFONSIVENESS
striking out answer, for, 182.
ISSUE
for jury, 121.
JEOPARDY
double, 41.
JOINT ENTERPRISE
admissions of co-party engaged, 536.
JOURNALS
legislative, judicial knowledge of, 341.
JOINT OWNERS
admissions by, 536.
JUDGE
calling of additional witnesses by, 301.
certificate of, to authenticate records, 1075.
discretion as to taking judicial notice of
alleged facts, 365.
experiments by, 1003.
function of, to prevent reasoning by wit-
nesses, 680.
functions of, as to opinion evidence, 680, 686.
988
INDEX. (References are to Sections.}
JUDGES
judicial knowledge as to, :(42
judicial knowledge of. !See KNOWLEDGE.
minutes of, admission of, 1057
personal knowledge of, 318.
prt'.-iimption of regularity of acts of, 493.
right to interrogate witnesses, 298, 300.
sitting as jury new trial, 201.
testimony of, as to confession, 614.
testimony of, as to records, 1059.
unfair comment by, 280
witness, as. 31!>, 1158.
See also, COURT AND JUBY.
JUDGMENT
annulment of, sufficiency of evidence, 411.
characteristic of administration, 74:
completeness of proof of, 257.
completeness of proof of record of, 268.
conclusions distinguished, 792.
confession of, as an admission, 502.
foreign state, of, proof by inspection, 6J
matters of, question for jury, 53.
motion in arrest of, 187
proof of, by copies, 1066.
right of litigant to, 202.
witnesses, of, 672-687.
See also, WITNESSES.
witness stating, 673.
JUDICIAL ADMISSIONS
See .ADMISSIONS.
JUDICIAL COMMITTEES
presumption of regularity of act of, 493
JUDICIAL DISCRETION
See DISCRETION.
JUDICIAL DISTRICTS
judicial knowledge of, 342.
JUDICIAL EVIDENCE
defined, 6.
extrajudicial distinguished, 4.
JUDICIAL KNOWLEDGE
See KXOWI.KIK.K; JUDICIAL.
JUDICIAL NOTICE
See KNowi.Kixii-;.
JUDICIAL OFFICE
See COURT AND JURY.
JUDICIAL RECORDS
copies of, 1066-1079
Sec Prune DOCUMENTS.
JURISDICTION
burden of evidence as to, 407.
contempt, for, 101.
courts, of, judicial knowledge of, 342.
JURY
attacks on, as contempt of court, 106.
communications to privileged, 1168, 1169.
contempt of court by, 103, 106.
deposit for payment of fees, 220.
distrust of, 867.
examination of reference books, 367.
function of, as to confessions, 606, 607.
function of, as to opinions of value, 762.
history of, 120.
impeachment of verdict, 1169.
not excluded from court room, 90.
preliminaries to trial by, 392.
prevention from being mislead, 180.
pr bative force of confessions, 611:
protection of, 6(iO, 731.
province of, as to medical witnesses, 726.
question of weight of opinion evidence, 833.
right to, 205-223.
use of individual knowledge, 320.
withdrawal of. during -argument, 183.
witnesses, as. 320, 1158.
See also, COURT AND JURY.
JURY COMMISSIONERS
presumption of regularity of acts of, 493.
JUSTICE
not to be delayed, 304.
promotion of, as a judicial function, 70.
protected by judge, 104-109.
furtherance of, 226-314.
See ADMINISTRATION.
JUSTICE'S COURTS
hearsay in, 866.
record of, 1070.
JUSTICES OF PEACE
judicial knowledge as to, 342.
presumption of regularity of acts of, 492, 493.
proof of records of, 1076.
records kept by, 1064.
JUSTIFICATION
criminal cases, in, burden of proof as to,
401.
KINDNESS
animals, of, opinions of, 711.
KNOWLEDGE
in general
admission by agent to show, 543.
book entries to show, 547
criminal cases, in, burden of proof, 400.
language, of, presumption of, 477.
law, presumption of, 477.
opinion as to, 711.
other acts to show, 1011, 1012, 1023.
proof of, by admissions, 557.
IXDEX. (References are to Sections.)
989.
Knowledge cont'd.
proof of. 550.
unsworn statements to show, 850.
.See also, ADKQTATE KNOWLEDGE.
common
common knowledge, 345, 679.
administrative advantages, 340.
what knowledge is rommon, 347.
knowledge as affected by jurisdiction, 348.
restrict^ communities, 349.
potential knowledge, .'550.
general notoriety: classes of facts so estab-
lished: res gestse. 351.
what facts are covered by the rule, 352.
nature. 353
science, 354.
facts of geography, 355.
facts of human experience, 356.
standards of reasonable conduct, 357.
facts of social life, 358.
facts of history, 350
facts of business, 3(50.
evidence of skilled witness not required,
301
various matters covered, 3(52.
how actual knowledge may be acquired, 363.
judge may decline to know fact, 364.
may require aid of parties. 365.
examination by judge. 360.
function of the jury, 307.
books not evidence. 308
standard treatises. 360.
testimony of skilled witnesses, 370.
how far knowledge is binding, 371.
matter of fact. .'i72.
matter of law, 373.
cognizance as affected by action of the par-
ties; waiver, 374.
judicial
knowledge, 315
knowledge of law: in general, 43. 64, 316.
common and judicial knowledge, 317.
judicial vs. personal knowledge: judge, 318.
judge as witness. 310.
jury, 320
scope of judicial knowledge of law, 321.
judicial knowledge of common law: national
courts. 322.
state and provincial courts, 323.
judicial knowledge of international law. 324.
judicial knowledge of law merchant. 325.
judicial knowledge of written law; extension
and intension. 326.
treaties. 327.
national courts. 32S.
state and provincial courts, 329.
local courts. 330.
amendment and repeal. 331.
what statutes are public, 332.
mercantile corporations : telegraph compa-
nies, 332.
private acts made public. 332.
statutes of sister state, 332.
Knowledge cont'd.
how judicial knowledge of law is acquired,
333.
foreign law, 333
judicial knowledge of the results of law,
334.
de facto and de jure officers, 334.
tenure under local ordinances, 334.
tenure of minor offices, 334.
governmental assumptions, 334.
official position. 334.
official proceedings. 335
correspondence, 335.
publications, 335.
executive department; nation, 336.
proclamations and other executive acts,
336.
state, 337.
county, 337.
municipal. 337.
proclamations and other executive acts,
337.
public surveys, 338.
rules and regulations: nation, 339.
administrative boards, 339.
state, 330.
signatures and seals: national, 340.
executive magistrates of foreign
states, 340.
cities, towns, etc., 340.
state, 340
county, 340.
legislative department; general facts, 341.
journals, 341.
municipalities, 341
legislative proceedings, 341.
direct results of legislation, 341.
judicial department : general facts, 342.
special tribunals. 342.
federal courts. 342
inferior courts. 342.
administrative boards, 342.
sessions : length of actual sitting, 342.
terms. 342
districts, 342.
foreign courts, 342.
other sfates, 342
inferior courts, 342.
length of terms, 342.
judges and magistrates, 342.
attorneys and counsel, 343.
practice. 343.
clerks, 343
sheriffs, constables, etc . 343.
court officers and officials. 343.
signatures and seals, 343.
court records, papers, etc., 344.
signatures and seals. 344.
other courts. 344.
own court : same case. 344.
own court; other cases, 344.
special
special knowledge, 375. 670.
990
INDEX. (References are to Sections.}
Knowledge cont'd.
special cont'd.
reason for excluding knowledge in general
376.
administrative action of judge, 377.
necessity of relevancy, 378.
adequate knowledge, 379.
technical or scientific facts, 380.
administrative considerations, 381.
scope, 382.
witnesses not " experts," 382.
no moral requirement, 382.
properties of matter, 383.
state of the art, 383.
business affairs, 384
various matters, 385
interstate or foreign law, 386.
the written law. 3S(i
maritime affairs. 387
mechanic arts, 388.
mining, natural history, 389.
professional facts: medicine, 390.
railroad facts; rules, 391.
LABOR UNIONS
judicial knowledge of laws of, 329.
LACHES
bar to enforcement of contempt, 110.
offer of compromise as explanation of, 577.
LAGER BEER
judicial notice of, 353.
LAND
See REAL ESTATE.
LAND GRANT
cancellation of, sufficiency of evidence of, 411.
LAND OFFICE
judicial knowledge of matters of, 335.
judicial knowledge of rules of, 339 n.
presumption of regularity in acts of, 493.
records of, 1082.
records of, 1087.
LAND RECORDS
records of, 1082.
LAND TITLES
judicial notice of history of, 359.
LANGUAGE
See FOREIGN LANGUAGE.
admissions, of, 530.
evidence of meaning of, 807.
insulting, as a contempt of court, 100.
insulting, to witnesses, as contempt of court
109.
judicial notice of, 358.
Language cont'd.
parol evidence for interpretation of, 1115.
presumption of knowledge of, 477.
witness not to state legal effect of, 806.
LARCENY
See also, RKCEIVIXG STOLEN GOODS.
declarations of owner upon discovery of, 973.
other offenses as part of res gestae, 839
other offenses to show knowledge of, 1012.
presumption of. from possession of stolen
goods. 4ft4-4(i7.
spontaneous statements in, 967.
LAW
See also, COMMON LAW; DOMESTIC LAW;
FOREIGN LAW. INTERNATIONAL LAW; LAW
MERCHANTS-. MUNICIPAL LAW; STATUTES.
admissions as to matters of, 528.
applied by whom, 40, 41.
certainty of, rulings on facts, 60.
common knowledge of, 373.
conclusions of, 803-807,
See also, CONCLUSIONS.
denned, 25, 38
evidence of, 1055.
judicial knowledge of, 316
judicial knowledge of results of, 334.
matter of, 25.
matter of, decided by judge, 54.
of evidence defined, 2.
of evidence, scope of, 3
presumption of knowledge of, 477, 497.
presumptions of. See PRESUMPTIONS, LAW.
propriety of comments by judge on, 289.
regularity of. 1007.
special knowledge as to, 386
substantive, in law of evidence, 22.
LAW BOOK
admission of, 1095.
LAW MERCHANT
judicially known, 325.
use of, 369
LAW REPORTS
LAWYER
See ATTORNEY.
LAY-OUT
opinion as to, 729.
LEADING QUESTIONS
admission of. 1172.
asked by judge, 300.
LEASES
parol evidence rule, 1108, 1118 n, 1121.
LEDGERS
See SHOP BOOKS.
INDEX. (References are to Sections.)
991
LEGAL DOCUMENTS
admissions in, 553.
failure to object to statements in, 563.
LEGALITY
assumption in favor of. 478.
Sec also, ILLEGALITY.
LEGAL PROBLEMS
expert evidence as to, 811.
LEGAL RELEVANCY
nature of, 30.
See also, RELEVANCY.
LEGAL TERMS
explanation of, by judge, 131.
LEGISLATIVE JOURNALS
judicial knowledge as to, 341.
proof of, 1057.
LEGISLATURE
See also, CO.NSTITI TIONALITY; STATUTES.
judicial knowledge of, 341.
evidence of acts of, 1055.
messages of, judicial knowledge of, 337.
judicial knowledge of proceedings of, 341.
presumption of legality of enactment of
statutes, 42!).
presumption of regularity of acts of, 493.
records, of, completeness of record, 263.
LEGITIMACY
accusation in travail, 968.
evidence as to, 940
person making pedigree declarations, 926.
presumption of, 446-450.
LENGTH
opinion as to, 740.
LETTERS
See also. DOCUMENTS.
admission by, 517. 550.
as unsworn statements, 843.
attorney and client, between, 1162.
best evidence rule, 1121.
copies of official, 1087
date of. presumed correct, 425.
failure to object to statements in, 563.
government officials, from admission of, 1082.
hearsay, as, 878.
parol evidence, interpretation of, 1115.
parol evidence of, 152, 1108.
presumption of receipt. 426.
public officers, of. judicial knowledge as to,
335.
receipt of reply letter. 274.
written to judge as contempt of court, 100,
secondary evidence of, 11 29
LETTERS OF GUARDIANSHIP
proof of, 1065.
LIBEL
evidence of reputation in, 855, 1033
presumption of malice in, 473.
unsworn statement to proof, 843.
LICENSE
burden of evidence as to lack of, 406.
LIFE
See also, DEATH.
judicial notice of, 358.
presumption of continuance, 417, 420, 451-
401, 498.
presumption of death after absence of seven
years, 451-401.
LIFE INSURANCE
See also, INSURANCE.
expert evidence as to, 811.
LIGHT
conclusion as to sufficiency of, 796.
LIGHT HOUSE BOARD
judicial knowledge of rules of, 339.
LIMITATIONS OF ACTIONS
nature of, 68.
presumption of lost grant, 472.
presumption of payment from lapse of time,
469.
LIQUIDS
judicial notice of characteristics of, 353
LIQUOR NUISANCE
reputation to show, 874.
LIQUORS
judicial notice of character of, 353.
LITERARY SERVICES
account books to .-how, 990.
LITERATURE
judicial notice of allusion^ to, 358.
LITIGANTS
See PARTIES.
admissions by, 533
offer of compromise by. 576.
presumption from failure to testify, 4.36.
LOAN AGENCIES
admissions in books of. 547.
LOANS
account books to show, 990.
LOCAL COURTS
judicial knowledge of, 330.
See also, INFERIOR COURTS.
LOCAL OPTION
statutes as public or private, 332.
992
INDEX. (References are to Sections.}
LOCATION
evidence of, 691.
judicial districts, of, judicial knowledge as
to, 342.
opinion as to, 740.
wounds of, 693.
LOGIC, INCORPORATION OF
incorporation of logic, 643.
logic defined, 644.
propositions, 645.
mental operations, 646.
intuitions, 647.
deductive operations, 648.
inductive reasoning, 649.
inference from experience, 650.
deduction the basis of induction, 651.
mental certainty, C>~r2.
hypothesis, 653.
testimony as to rules of reasoning, 53.
See REASONING.
LOGICAL RELEVANCY
See also, RELEVANCY.
defined, 36.
LOSS
document, of, parol evidence of, 151, 234.
original document, of, 1124.
LOST GRANT
presumption of, 472
LOVE
unsworn statements to show, 851.
LOYALTY
proof of, by reputation, 656.
proof of good character for, 1033.
LUMBER
estimate of quantity of. 740.
judicial notice of business of selling, 361.
LUNATIC
opinion of ordinary observer as to, 702
See also, INSANITY.
MACHINERY
capability of, opinion as to, 738.
experiment to show working of, 1137.
opinion as to, 71 s.
opinion of suitability of, 699.
real evidence, as, 1136,
MAGAZINES
hearsay, as, 877.
MAGISTRATES
See CHIEF MAGISTRATE.
assumption of validity of acts of, 492.
confession induced by, 592.
Magistrates cont'd.
judicial knowledge as to, 342.
presumption of regularity of acts of, 492, 493.
testimony of, as to confession, 614.
MAIL
judicial notice as to transportation of, 362.
record of, 108:5.
presumption of regularity of service, 426.
rebuttal of inference from mailing, 427, 428.
MALICE
burden of proof as to, 468.
libel, ih, presumption of, 473.
other acts to show, 1013.
presumption of, in homicide, 468.
unsworn statements to show, 851.
MALICIOUS PROSECUTION
evidence of reputation in, 855, 1035, 1036.
reasonable cause as question of law, 56.
MALT LIQUORS
judicial notice of, 353.
MANAGEMENT
business, of, skilled witnesses as to, 388.
vessels, of, opinion as to, 718.
MANDATE, WRIT OF
jury trial in, 214.
MANSLAUGHTER
dying declarations, 895-913.
presumption of malice, 468.
MANUALS
See TRADE MANUALS.
MANUFACTURING
See also, MECHANIC AKTS.
expert evidence as to, 811.
opinion as to, 718. .
skilled witnesses as to matters of, 388.
MAPS
admission of, 1082.
copies of, 1087
proof of plots of lots, 262.
use of, 369.
MARINE INSURANCE
See also, INSURANCE.
expert evidence as to, 811.
MARITIME
regulations judicially known, 324.
MARITIME MATTERS
expert matters as to, 811
opinion as to, 718.
skilled witness as to, 387.
records, 1095.
(References are to Sections.)
993
MARKET REPORTS
use for opinion on value, 744.
use of, 369.
MARKET VALUE
proof of, 743-747.
See VALUE.
MARRIAGE
church records of, admission of, 1094.
continuance of, presumed, 422.
copy of foreign record of, 1091.
reputation to show, 034.
tradition to show, 935
pedigree declarations as to, 931, 943.
presumption of legality. 446.
presumption of legitimacy of children, 446-
450.
proof of by admissions, 557.
proof of record, 2(52.
proved by cohabitation, 943.
MARRIAGE REGISTER
admission of, 1082.
MARRIED WOMEN
See COVERTURE; HUSBAND AND WIFE; MAR-
RIAGE.
admissions by, 534.
dying declarations of, 907.
MARTIAL LAW
judicial knowledge of existence of, 336.
MATERIAL EVIDENCE
denned, 15.
MATHEMATICS
judicial notice of. 354
use of calculations. 3(19.
MATRIMONY
See MARRIAGE.
MATTER
judicial notice of characteristics of, 353.
properties of, skilled witness, 383.
strength of, skilled \vitness as to, 388.
defined, 24.
defined, 25.
MATTER OF FACT
MATTER OF LAW
MATTER OF OPINION
defined, 26.
MAXIMS
Cokes, 44.
falsus in uno, falsus in omnibus, 1180.
MAYHEM
determination by inspection, 61.
MAYOR
presumption of regularity of acts of, 493.
See also, OFFICERS.
MEANING
words, of, evidence as to, 55.
MEASUREMENTS
judicial notice of, 354.
MECHANIC
account book of, 993.
MECHANIC ARTS
expert evidence as to, 811.
judicial notice of, 358. 362.
opinion as to, 719.
skilled witnesses as to, 388.
estimates of capabilities, 737-739.
MEDICAL BOOKS
hearsay, as, 877.
MEDICAL FACTS
opinions as to, 722.
MEDICINE
burden of evidence as to want of license to
practice, 406.
expert evidence as to, 722, 812.
judicial notice of, 353, 358.
judicial notice of medical terms, 362.
opinions as to, 722.
skilled witnesses as to matters of, 390.
MELANCHOLY
opinion as to, 711.
MEMORANDA
absence of, as negative fact, 667.
admissions in, 533.
admission of, 1098.
former evidence, of, 637.
hearsay, as, 878.
kept in course of duty, 921.
refreshing memoranda of witness by, 862,
1098, 1173.
MEMORY
dying declarant, of. 912.
refreshing, 862, 1098, 1173.
MENTAL ANGUISH
opinion as to, 711.
MENTAL ATTITUDE
instructions as to, 131.
MENTAL CAPACITY
one making confession, of, 585.
opinion of ordinary observer, 701.
proof of, by admissions, 557.
994
IXDEX. (References are to Sections.)
MENTAL CONDITION
dying declarant, of, 912.
See also, INSANITY; (SANITY; MENTAL STATE
expert evidence as to, 812.
inspection as evidence, 1134.
judicial notice of, 358.
opinion of ordinary observer as to, 702.
opinion of physician as to, 709, 722.
party may testify as to his own, 656.
presumption as to sanity, 424.
presumption of continuance of, 421.
proof of. to invalidate writing, 1114.
proved by admissions. 557.
reputation to show, 874.
unsworn statements to show, 847.
witnesses of, 1148.
MENTAL INCAPACITY
witness, of, former evidence, 627.
. MENTAL STATE
admission by agent to show. 543.
See also, MENTAL CONDITION.
dying declarant, of. 912.
evidence of, 691
otter of compromise to show, 577.
opinion as to, 711.
other acts to show, 1011. 1014.
party may testify as to his own, 656.
presumption of capacity for crime. 463.
presumption of continuance of, 404, 421.
proof of, 559
proof of, by admissions, 557.
MERCANTILE AGENCIES
judicial notice of, 362.
MERCANTILE GOODS
opinion of value of, 757.
MERCANTILE PAPERS
failure to object to entries in, 563.
MERCHANTS
account books of, 977, 995.
MERIDIAN LINES
judicial knowledge of, 338.
MESSAGES
governor of, judicial knowledge as to, 337.
MESSENGER
of court, delaying as contempt, 108.
METABOLISM
verbal, 68.
MILITARY
officers, presumption of regularity of acts of,
493.
affairs, opinion as to, 728,
records, admission of, 1082.
MILLWRIGHT'S TABLES
judicial notice of, 354 n.
MIND
opinion as to conditions of, 701.
See also, MKNTAL CONDITION.
MINING
expert evidence as to, 729, 812, 813.
judicial notice of. 362.
judicial notice of history of, 359 .
jury trial in ascertainment of extra lateral
rights, 215.
opinion as to, 729.
skilled witnesses as to matters of, 385, 389.
MINING ENGINEERING
See also, ENGINEERING.
MINISTERS
privileged communications to, 1165.
MINORS
See also, CHILDREN. .
estimate of age of, 736.
witnesses, as, 1149.
MINUTES
for judicial records, admission of, 1061.
judicial notice as to, ;{.};}.
MISDEMEANORS
right to jury trial in prosecution for, 219.
MISREPRESENTATIONS
parol evidence to show, 1112.
MISTAKE
account books, in, 994.
attorney, of, corrected by judge, 131.
parol evidence to show. 1117.
sufficiency of evidence of mutual, 411.
MITIGATING EVIDENCE
criminal cases, in, burden of proof as to, 401.
MODELS
real evidence, as, 1136.
MODIFICATION
instrument of, sufficiency of evidence, 411.
subsequent, of writing, 'parol evidence rule,
1116.
MOMENTUM
judicial notice of laws of, 353.
MONEY
identification of, 466.
oral evidence to show payment of, 1*128.
MORALITY
presumption as to, 424.
INDEX. (References are to Sections.)
995
MORAL NATURE
judicial notice of, 358.
MORAL QUALITIES
relaxation in proof of, 65U.
MORALS
exclusion from courtroom for protection of, S3.
reputation to show, 874.
MORAL UNIFORMITY
relevancy of, 100S-1024.
See also, CHARACTER: RKS INTER ALICS.
MORPHINE
evidence that person is under influence of, G93.
MORTALITY TABLES
judicial notice of, 3f>4.
received, 042 n.
use by expert, 829.
use of, 369.
MORTGAGES
copies of foreign records of, 1090.
copies of record, 1080.
parol evidence, interpretation of, 1115.
parol evidence rule, 11 OS.
parol evidence to apply description in, 1118n.
parol evidence to show nature of transaction,
lllSn.
records of, 10*4.
MOTION
directed verdict, for. time for making, 194.
for order for separation of witnesses, 88-90.
jury trial in, 213.
MOTIVE
admission by agent to >how, ,>43.
evidence of reputation, 1036.
other acts to show, 1015
proof of, 559.
testimony of person as to, 656
MOTOR VEHICLES
See AUTOMOBILES
MOVEMENTS
heavenly bodies, of, judicial notice of, 354
MUNICIPAL CORPORATIONS
boundaries of, judicial notice as to. 355.
boundaries of, declarations as to, 894.
contempt of court by, 103
copies of ordinances, 1088.
incorporation of. declarations as to, 894.
judicial knowledge of legislative branch, 341.
judicial knowledge of seal of, 340.
judicial knowledge of what are, 341.
judicial notice as to, 355.
judicial notice of growth of, 359.
presumptions against illegality of, 495.
Municipal Corporations cont'd.
presumption of knowledge of ordinances,
477.
proof of ordinances, 1056.
ordinances of, see ORDINANCES.
leputation to show, 874.
right to jury trial, 217
statutes creating as public or private, 332.
vital statistics of, 262
MUNICIPAL COUNCILS
presumption of regularity of acts of, 493.
MUNICIPAL COURTS
judicial knowledge as to, 342.
judicial knowledge of laws, 330.
MUNICIPAL LAW
as a fact, 25.
MUNICIPAL OFFICERS
judicial knowledge of, 337, 359.
judicial knowledge of signatures and seals
of, 340.
presumption of regularity of acts of, 493.
MUNICIPAL ORDINANCES
See ORDINANCES.
MUNICIPAL RECORDS
proof of, 1082.
See PUBLIC DOCUMENTS.
MURDER
dying declarations, 895-913.
presumption of malice, 468.
MUTE
deaf, as witness, 153, 155.
deaf, not presumed an idiot, 424.
witness, as, 1148
MUTILATION
documents, of, presumption from, 442.
real evidence, of, presumption from, 443.
N
NAMES
corporations, of, judicially known, 332.
foreign governments, of, judicial knowledge
as to, 336
pedigree declarations as to, 932, 944.
similarity of, 488.
NARRATIVE
See also, RES GEST.E.
admissions by agent, 542.
res gestae, as, 963.
NATIONALITY
pedigree declarations as to, 932.
996
INDEX. (References are to Sections.)
NATURAL HISTORY
>killod witness as to, 38'J.
NATURE
extrajudicial evidence as part of, 5.
judicial notice of facts of, 353.
uniformity of, 996-1007.
See also, Ht.s IXTEK ALIOS.
wounds, of, 093.
NAUTICAL MATTERS
skilled witness as to, 387.
NAUTICAL RECORDS
admission of, 10!).5.
NAVIGATION
skilled witnesses as to matters of, 387.
NAVY
opinion of members of, 728.
records, of, admission of, 10M2.
NAVY DEPARTMENT
judicial knowledge of regulations of, 339.
NECESSITY
as ground for admission of dying declara-
tions, S!l(i
conclusion as to, ~!)5.
conclusions from observations, 793
declarations as to matters of public or gen-
eral interest, 890.
entries in course of business, 917.
expert opinion, 715.
of introduction of former evidence, 618.
opinion evidence of, 677
opinion of value, 751.
pedigree declarations, 027.
proof of character. 1020.
receipt of estimates. 735.
res inter alios. 909, 1009.
secondary evidence, for, 150.
shopbooks. 978
use of declarations against interest, 883.
use of secondary evidence, 233.
NEGATIVE ALLEGATIONS
burden of proof, 3!)6
burden of proof in criminal cases, 400.
NEGATIVE EVIDENCE
positive evidence distinguished, 20.
instructions as to, 131.
NEGATIVE FACTS
burden of evidence as to, 406.
conclusions as to, 795.
evidence of, 689.
method of proof, 400.
positive facts contrasted, 33.
See also, FACTS.
relevancy of, 667.
NEGLIGENCE
carriers, of, presumption of, 469.
evidence of reputation, 1036.
other acts of, KKIS.
other acts to show knowledge, 1012.
les i]>sa loquitor, 415.
NEGOTIABLE INSTRUMENTS
admissions in, 549
admissions by joint parties, 53(5.
laws of, judicially known, 325.
parol evidence of, 151.
presumption from possession by maker, 425.
NEGOTIATIONS
offers of compromise, see COMPROMISE, OF-
FERS OF.
NEGROES
witnesses, as, 1159.
NERVOUSNESS
evidence of, 693.
NEWLY DISCOVERED EVIDENCE
new trial for, 277.
NEWSPAPERS
See also, LIBKL, 473.
admissions in, 555.
attacks on jurymen as contempt of court,
106
hearsay, as, 877.
pi oof of ordinance printed in, 1056.
publication as contempt of court, 107.
unsworn statement in, 853.
NEW TRIAL
error in law, 134-145.
for newly discovered evidence, 277.
granting of, 133.
granting of, relation to directed verdict, 186.
NEXT FRIEND
admissions by, 537.
NOISE
identification from, (i!)7.
NOLO CONTENDERE
plea of, as an admission, 508.
NOMINAL PARTIES
admissions by, 537.
NON-ACCESS
evidence of, on question of legitimacy, 449.
NON-AGE
See AGE.
NONFEASANCE
attorney, of, as contempt of court, 105.
IXDEX. (References are to Sections.)
997
NON-RESIDENCE
presumption of continuance, 422.
witness, of, justifies secondary evidence, 234.
NONSUIT
direction of, 197.
propriety of, may be discussed by judge, 287.
NOTARY PUBLIC
judicial knowledge of signature and seal of,
344.
judicially known as existing under law of
nations, 324.
presumption of regularity of acts of, 493.
NOTE
See also, NEGOTIABLE PAPERS.
best evidence rule, 1121.
endorsements on, 923.
unsworn statement in, 853.
NOTICE
See KNOWLEDGE.
issuance of contempt order, of, 101.
opinion as to, 712.
presumption of regularity of giving, 493.
production of documents, for, 1129.
receipt of writing, 564.
NOTORIOUS FACTS
See KNOWLEDGE, COMMON.
NUL TIEL RECORD
determination of plea of, 61.
NUMBER
opinion as to, 740.
witnesses, of, elimination of, 304.
NURSES
opinions of, 722.
opinion of value of services of, 757.
qualification of, to give opinion, 725.
skilled witnesses, as, 390.
OATH
form of, 98.
nature of, 1148.
pleadings, to, effect of, 513.
witnesses, of, compelled, 103
witnesses to, 95, 96.
See WITNESSES.
OBEDIENCE
orders of judge, to, 101.
OBITUARY NOTICES
admissions in, 551.
OBJECTION
former evidence, to, 618.
manner of taking, to secondary evidence,
236.
OBJECTIVE RELEVANCY
See also, RELEVANCY.
evidence of, 870.
extrajudicial evidence as field of, 5.
opinions, of, 681.
opinion of ordinary observer, 712.
unsworn statement, of, 843.
OBJECTS
description of by witness, 691.
estimate of age of, 736.
OBSERVANCE
procedure, of, rights of parties, 66.
OBSERVER.
See ORDINARY OBSERVER; WITNESSES.
OBSTRUCTIONS
stream, in, judicial notice of effect of, 353 n.
ODOR
ability to smell, opinion as to, 737.
evidence of, 795.
identification from, 697.
OFFERS OF COMPROMISE
See COMPROMISE, OFFERS OF.
OFFICE
tenure of, presumed. 419.
attorney -general, judicial notice of, 343.
judge, of, judicial knowledge as to, 342.
prosecuting attorneys, judicial notice of, 343.
OFFICERS
See also. PUBLIC OFFICERS.
admissions by, 540.
corporate, obedience to court orders, 103.
hearsay by, 859.
municipal, judicial knowledge of, 337.
presumptions as to, 419.
presumption of regularity of acts of, 490.
regularity of officers, returns, 425.
serving process, assault on, as contempt, 108.
railroad, of. skilled witnesses, as to duties,
391
state, of, judicial knowledge as to acts of,
337
street railways, skilled witnesses as to duties
of, 291
United States, of, judicial knowledge as to,
334.
vessel, of, skilled witnesses as to duties, 387.
OFFICIAL GAZETTE
evidence of. 1057
-.
998
IXDEX. (References are to Sections.)
OFFICIAL PAPER
admissions in, 552.
OFFICIAL RECORDS
former evidence as, 036.
OFFICIAL STATEMENTS
hearsay, as, 878, 87!>.
OPENING
cases, to receive new evidence, 165.
direction of verdict on, 195.
OPENING AND CLOSING
right of, 159-163.
OPERATION
mine, of, opinion as to, 729.
mines, of, skilled witnesses as to, 389.
railroads, of, expert evidence as to, 814,
railroad, of, judicial notice of, 362.
railroads, of, opinion as to, 731.
railroad, of, skilled witnesses as to matters
of, 391.
street railways, of, expert evidence as to,
815.
street railways, of, opinion as to, 732.
form, of, expert evidence as to, 811.
OPINIONS
See also, INFERENCE FROM SENSATION; EX-
PERTS; HANDWRITING; WITNESSES;
CONCLUSIONS; ESTIMATES; VALUE.
admissions by agent in form of, 540.
conclusion of witness, see CONCLUSIONS.
experts, see EXPERTS.
handwriting, on, see HANDWRITING.
hearsay in form of. 859
hypothetical questions, see EXPERTS.
judgments of experts, see EXPERTS.
judge, of, not to be stated on facts, 286.
matter of, defined, 26, i>~-2.
matter of, 672-687 ; see also, WITNESSES,
REASONING BY.
matters of, question for jury, 53.
subject of admissions, as, 528.
value, of, see VALVE.
effect on competency of witness, 1152.
OPPORTUNITY
conclusion as to sufficiency of, 796.
cross examination, for, 172.
proof of other acts to show, 1023.
ORAL CONTRACTS
construction of, as question of law 58.
ORAL EVIDENCE
admissions, as, 515.
documents distinguished, 16.
instructions as to value of, 131.
written is primary as compared with, 230.
See also, PABOL EVIDENCE RULE.
ORAL STATEMENTS
completeness, 245-255.
trial by, 120.
ORDEAL
ORDER
events, of, presumption of regularity of, 491.
evidence, of, variations in, 164.
maintenance of, in courtroom, 99.
ORDERS
notice of issuance of contempt, 101.
for production of document, 441.
of court to be obeyed, 101.
procurement of, for separation of witnesses,
88.
trial judge, of, modification by Appellate
Courts, 314.
ORDINANCES
copies of, 1088.
judicial knowledge of, 326, 329.
judicial knowledge of, in local courts, 330.
judicial knowledge of results of, 334.
See also, KNOWLEDGE.
presumption of knowledge of, 477.
proof of, 1056.
proof of passage of, 1082.
ORDINARY OBSERVER
opinions by, 683.
opinions from sensation, 688-712.
See also, INFERENCE FROM SENSATION.
ORGANIZATION
courts, of, judicial knowledge of, 342.
corporate, records to show, 1092.
OTHER COUNTRIES
See FOREIGN COUNTRIES.
OTHER OFFENSES
See RES INTER ALIOS.
OTHER STATES
See FOREIGN STATES.
OVERSEERS OF POOR
records of, 1083.
OWNER
declarations of, on discovery of larceny, 973.
opinion of value by, 758.
OWNERSHIP
conclusion of witness as to, 805.
presumption from possession, 489.
presumption of, 469.
presumption of continuance, 418.
property, of, proof of, by oral evidence, 1128.
INDEX. (References are to Sections.)
999
PAIN
effect on confession, 589.
evidence of, 691.
opinion of location of, 700.
statements to physician as to, 974.
unsworn statements showing, 845.
PAMPHLETS
government officials, of, admission of, 1082.
PAPERS
See DOCUMENTS-. NEWSPAPERS.
court, judicial knowledge of, 344.
PAROL EVIDENCE RTTLE
See also. ADMINISTRATION.
parol evidence rule, general statement of,
1108.
private documents, 1109.
not conclusive against strangers, 1109.
consideration: when evidence admissible
to show, 1109.
receipts, 1109.
exceptions: collateral agreements; instru-
ment incomplete, 1110.
delivery incomplete or conditional, 1111.
duress, fraud or fraudulent representations,
1112.
illegality, 1113.
incapacity, 1114.
interpretation and explanation; evidence
admissible for purposes of, 1115.
words of doubtful meaning, 1115
what evidence is admissible, 1115.
usage, 1115.
modification or rescission subsequent to exe-
cution, 1116.
mistake, 1117.
parties: identification of, 1118. -
real transaction may be shown, 1118.
subject matter not clear; evidence for
purpose of identification, 1118.
unauthorized signing, 1119.
public records, 1120.
documents, 151.
PARDON
hope of, as inducement for confession, 587.
judicial knowledge as to procedure of, 339 n.
judicial knowledge of granting of, 336.
PARENTAGE
See also. LEGITIMACY.
evidence as to, 946.
reputation to show, 935.
PARISHES
See also, COUNTIES: MUNICIPAL CORPORA-
TIONS.
judicial knowledge of magistrates of, 342.
PAROL CONTRACTS
construction of, as question of law, 58.
sufficiency of evidence of specific perform-
ance of, 411.
PARTIES
admissions by, 533.
aiding violation of order for separation of
witnesses, 92.
consistency in, compelled, 78.
exclusion from courtroom, 90.
offer of compromise by, 576.
presumption from failure to testify, 436.
PARTNERSHIP
admissions in books of, 547.
laws of, judicially known, 325.
presumption of continuance, 422.
parol evidence rule as to agreement, 1108.
PASSAGE
statute, of, regularity of, presumption of,
429.
PASSENGERS
carriage, of, skilled witnesses as to matters
of, 391.
judicial notice as to, 302.
PATENT OFFICE
judicial knowledge of practice of, 339 n.
PATENTS
judicial knowledge of practice of numbering,
339 n.
records of, 1082, 1087.
sufficiency of evidence of cancellation of, 411.
PATERNITY
resemblance as evidence of, 1135.
See also PEDIGREE.
PAUPER
pedigree declarations of, 930.
PAYMENTS
oral evidence to show, 1 128.
presumption of, from lapse of time, 469.
recital of, in writing, parol evidence, 1109.
unsworn statement to show time of, 84fi.
PEACE
judicial knowledge of declaration of, 336.
PEACEFTTLNESS
proof of character for, 1033.
PEDIGREE
The pedigree exception, 925.
rule stated: unsworn statements as to pedi-
gree, 926.
necessity that the relationship of declar-
ant be legitimate, 926.
administrative requirements: necessity; gen-
eral and special, 927.
1000
IXDEX. (References are to Sections.)
Pedigree cont'd.
administrative requirements cont'd.
relevancy, 1)28.
relevancy of family history, 656.
validity 'of document not demanded, 929.
issue must be one of genealogy, 930.
scope of rule; facts directly asserted, 931.
facts incidentally asserted; relationship,
932.
form of statement, 933.
composite; reputation, 934.
tradition, 035.
individual, 936.
circumstantial proof of pedigree, 937.
proof by acquiescence in case of pedigree,
938.
animal pedigree, 939.
scope of circumstantial evidence in case of
pedigree, 940.
birth, 941.
death, 942.
marriage, 943.
names, 944.
race, 945.
relationship, 946.
residence, 947.
status, 948.
PEDIGREE BOOKS
admission of, 360, 939.
PENALTIES
actions for, character evidence in, 1029.
direction of verdicts in actions for, 184.
sufficiency of evidence in suits for, 410.
PENS
opinion as to, 70!).
PERCEPTION, EVIDENCE BY
evidence by, 229
evidence by perception ; meaning of term,
1131.
administrative power of court, 1132.
review by Appellate Court, 1132.
subjects of; animals, 1133.
persons: facts to be proved; age, 1134.
physical injuries, 1134.
exercise of power by presiding judge,
1134.
color, race, etc, 1134.
identity, 1134.
compulsory submission to examination,-
1134.
mental condition, insanity, intelligence,
etc., 1134
resemblance, paternity, etc, 1135.
things; in civil actions, 1136.
in criminal cases, 1137.
body of deceased or parts thereof, 1137.
clothes and other personal articles, 1137.
identification of articles, 1137.
experiments, 1138.
view, 1139.
PERFORMANCE
See SPECIFIC PERFORMANCE.
PERIODICALS
hearsay, as, 8 7 7.
PERJURY
as contempt of court, 109.
evidence of reputation. 1033.
PERMANENCY
injury, of, statement of witness as to, 691.
PERSONAL EVIDENCE
real evidence distinguished, 21.
PERSONAL INJURIES
declarations upon receiving, 974.
PERSONAL PROPERTY
opinion of value of, 757.
opinion as to change of value, 749.
PHENOMENA
opinion of effect of, 739.
PHOTOGRAPHY
instructions as to misleading nature of pho-
tographs, 131.
judicial notice of, 354.
opinions as to, 730.
proof of photographs, 1092.
x-ray pictures, 1092.
PHRASES
evidence of meaning of, 807.
judicial notice as to meaning of, 358, 362.
parol evidence for interpretation of, 1115.
PHYSICAL CONDITIONS
conclusion as to, 795.
opinions as to, 693.
PHYSICAL EXAMINATION
party, of, presumption from failure to sub-
mit to, 436.
PHYSICAL FACTS
expert evidence as to, 812.
opinions as to, 693.
psychological facts distinguished, 27.
See also, FACTS.
scope of extrajudicial admissions, 557.
PHYSICAL INCAPACITY
witness, of, former evidence, 629.
PHYSICAL POWERS
presumptions as to, 423.
PHYSICIAN
burden of proof as to absence of license, 406.
opinions of, 709, 722.
opinion of, as to sanity, 709.
IjSTDEX. (References are to Sections.)
1001
Physician cont'd.
opinion of value of services of, 759.
privileged communications to, 1167.
record of, 982 n.
skilled witness, as a, 390.
skill of, reputation to show, 874.
statements of sick to, 974.
witness fees of, 1146.
PLACE
birth, of, pedigree statements, 941.
hearing of, as surprise, 283.
PLAINTIFF
burden of proof on, 396.
offer of compromise by, 576.
right to open and close, 159.
PLANS
declarations, as, 893.
PLEA
guilty, of, as a confession, 603.
guilty, of, as admission, 502.
guiltv, of, power of court to receive, 210.
See also, PLEADINGS.
PLEADINGS
admissions by, 503-514.
admission of, 1063.
amendment of, as surprise, 279.
effect of allegations in, on witnesses, 1150.
effect of, on burden of proof, 396-399.
effect of on right to open and close, 162
foreign statute, necessity of, 329.
hearsay, as, 878.
proof of, 1063.
proof of, completeness of, 265, 26(i.
right of opponent to read balance, 273.
signatures of attorneys to, judicial notice as
to, 343
PLEADINGS CRIMINAL
effect of withdrawn plea of guilty, 525 A.
PLOTS OF LOTS
proof of record of, 262.
PNEUMONIA
judicial notice of, 358 n.
POISONING
spontaneous statements in cases of. 967.
POLICE OFFICERS
presumption of regularity of acts of, 493.
judicial knowledge of salary of, 334.
judge, of, 99.
POLICE POWERS
POLICIES
See INSURANCE.
POLITICAL HISTORY
judicial notice of, 359.
POLITICAL OPINIONS
unsworn statements to show, 851.
POLITICAL PARTIES
judicial notice of history of, 359.
POLITICS
judicial notice of, 358.
POLL BOOK
admission of, 1082.
POLYGAMY
testimony of wife, 1155.
POPULATION
census, proof of, 1057.
judicial notice of, 359.
POSITION
municipal divisions, of, judicial knowledge
of, 338.
POSITIVE EVIDENCE
negative evidence distinguished, 20.
instructions as to, 131.
POSITIVE FACTS
negative facts distinguished, 33.
See also FACTS.
POSSESSION
conclusion of witness as to, 805.
of note by maker, presumptions from, 425.
presumption of continuance, 418.
presumption of ownership from, 489.
stolen goods, of, presumption of larceny,
464-467.
POSSIBILITIES
conclusions as to, 795.
railroads, of, skilled witnesses as to, 391.
POSTMARKS
presumptions from, 426
POST OFFICE
admission of registry kept by postmaster,
1083
presumption of knowledge of regulations of,
477.
presumption of regularity of mail service,
426
records of, 1083.
POST OFFICE DEPARTMENT
judicial knowledge of regulations of depart-
ments, 339.
1002
INDEX. (References are to Sections.)
POWER OF ATTORNEY
copy of foreign record, 1090.
date of, presumed correct, 425.
proof of, 1099.
proof of deed executed under, 1101.
POWERS
corporations, of, judicially known, 332.
courts, of, judicial knowledge of, 342.
deeds executed under, as ancient deeds, 1106.
instruments executed under, proof of, 1101.
of judge. See COURT AND JURY.
procreation, of, assumed, 423.
PRACTICE
denned, 65, 71-
See PROCEDURE.
PRAYER
confession in form of. (>. .
PRELIMINARY FACTS
conditioning admissibility, 44.
relevancy, of, 668.
PREMEDITATION
presumption of malice from, 468.
PREPONDERANCE
evidence, of, 408.
PRESENCE
of judge, constructive, 113.
PRESIDENT
judicial knowledge as to, 334, 336.
judicial knowledge of message of, 336.
judicial knowledge of signature of, 340.
presumption of regularity in acts of, 493.
PRESIDING JUDGE
See COT-RT AMI JURY.
PRESS
See KKWSPAPEBS.
PRESUMPTIONS
Administrative.
administrative assumptions, 486
presumptions of law contrasted, 487.
effect of on burden of evidence, 413.
identity of person from similarity of name,
48S.
corroborative, 488.
inferences of fact, 488.
initials, 488
infirmative, 488.
extrinsic, 488.
dissimilarity, 488
assumption displaced, 488.
property from possession, 489.
regularity, 490
ancient facts, 490
Presumptions cont'd.
no probative force, 490.
order of events, 491.
judicial proceedings, 492.
inferior or foreign tribunals, 492.
courts of record, 492.
public officers, 493.
clerks, 493.
performance of conditions, 493
judicial; judges, 493.
attorneys, 493.
sheriffs and other officers, 493.
municipal, 493.
county, 493
legislative, 493.
executive; national or state, 493.
relation between foreign and domestic law,
494.
rate of interest in foreign state, 61.
common law, 494.
common law of the forum, 494.
construction, 494.
foreign law assumed to be the same as
that of the forum; common law,
494.
inertia of the court, 4!)4.
civil law assumed to govern, 494.
foreign law not assumed to be the same
as that of the forum, 494.
statutory law, 4!)4.
when foreign law is statutory, 494
wrongdoing not assumed, 495.
fraud, 495.
professional duty, 495
corporations, 495.
fiduciary conduct, 495.
no probative force, 495.
illegality, 495.
good character, 495, 855.
conflict of presumptions; civil cases, 496.
a contrary view, 496.
criminal cases ; knowledge of law, 497.
presumption of innocence, 498.
no presumption in the matter, 498.
bigamy, 498.
continuance of life, 498.
Presumption of Law.
assumptions of procedure, 444.
conclusive, 68.
conclusive evidence as, 13.
presumptions of law, 445.
a limited number, 445.
civil cases, 445.
presumption of legitimacy marriages, 446.
marriage, 446.
" inter quatuor maria," 446.
proof under the modern use of reason, 446.
proof of access, 447.
rebuttal of presumption, 448.
limitation unon scope of evidence, 449.
inferences of fact, 450.
presumption of death; continuance of life,
451.
INDEX. (References are to Sections.)
1003
Presumptions cont'd.
presumption of legitimacy cont'd.
inference of continuance of life rebuttable,
451.
an inference of varying probative force,
452.
adoption of rule in America, 453.
statutory modifications, 454.
absence from jurisdiction, 454.
proof of death by inferences of fact, 455.
relevancy, 455.
documents, 455.
admissions, 455.
proof must be competent, 455.
failure to hear, 456.,
actual receipt of tidings, 456.
probability of information, 456.
infirmative considerations, 456.
shorter periods, 456.
absence of tidings is important only
when it exists at absentee's home,
456.
subjective facts, 457
peculiar inducements to communicate,
457.
unavailing search, 458.
administrative details, 458.
what constitutes, 458.
computation of the seven year period, 459.
time of actual death ; no- presumption of
life during seven years, 460.
burden of evidence, 460.
death at the end of seven years, 460.
no assumption of time of death during
the seven years, 460.
death at end of a considerable period,
460.
death at beginning of period, 460.
life during entire period, 460.
presumption rebuttable, 461.
motive not to return or communicate,
461
hiding, 461.
affirmative evidence of life, 461.
criminal cases, 462.
presumption of coercion, 462.
capacity for crime, 463.
fourteen to twenty-one, 463.
seven to fourteen, 463.
under seven, 463.
rape, 463.
procedural assumptions, 463.
proof of mental state or condition, 463.
presumption of larceny from recent unex-
plained possession of stolen goods, 464.
limited to use of circumstantial evi-
dence, 464.
statutory modifications, 464.
presumption of law denied, 44.
administrative details, 464.
" a question of fact for the jury," 464.
corroboration required, 464.
Presumptions cont'd.
criminal cases cont'd.
jury may act in accordance with the
inference, 464
a prima facie inference of fact, 464.
prima facie value denied, 464.
a presumption of law, 464.
inference not conclusive, 464.
explanation, 465.
rebuttal, 465.
reasonable doubt alone required, 465.
spoliation, 465.
opportunity at trial, 465.
spontaniety, 465.
place and cause of finding, 466.
proof of possession, 467.
presumption of malice in homicide, 468.
a discredited rule, 468.
Inferences of Fact,
presumptions; classification of, 414.
inferences of fact; res ipsa loquitur, 415.
" no presumption on a presumption," 415.
inferences are rebuttable, 415
inference of continuance, 416.
administrative assumptions, 416.
length of time, 416.
nature of subject matter, 417.
bodily states or conditions, 417.
habits, 417.
of continuance of hope or fear in confes-
sion, 587.
legal results, 418.
legal status and standing, 419.
qualification or disqualification, 419.
official and other fiduciary relations,
419.
foreign regulations, 419.
foreign law, 419.
life, 420.
mental conditions, 404, 421.
mental or moral character, 421.
mental states, 421.
personal or business relations, 422.
relations to creditors, 422.
relations to localities, 422.
inferences or regularity ; human attri-
butes ; physical, 423.
power of procreation. 423.
capacity for child-bearing, 423.
mental or moral, 424.
instinct of self-preservation, 424.
moral attributes, 424.
business affairs, 425.
minor instances, 425.
corporation business, 425.
dates and actual time, 425.
usual methods followed, 425.
officer's returns, 425.
official business: mail service, 426.
date, 426.
" due course of mail," 426.
postmarks, 426.
1004
INDEX. (References are to Sections.)
Presumptions cont'd.
inference of continuance cont'd.
receiving postmark, 426.
postage must be prepaid, 426.
deposit in the mail, 426.
when mailing is complete,. 426.
necessary conditions on inference of re-
ceipt from mailing; proper address,
426.
rebuttal of inference of receipt from mail-
ing, 427.
corroboration, 427.
same; probative force of inference of
receipt from mailing; request for
return, 427.
presumption of law, 427.
presumption of law denied, 427.
inference rebuttable, 428.
jms statutes, 429.
ojii.-in contra spoliatorem, 430.
confusion, 430.
damages, 430.
value and damages, 430.
secret offenses, 430.
rebuttable, 430.
spoliation a deliberative fact, 431.
modifying circumstances, 431.
criminal cases, 431.
subjective relevancy, 431.
spoliation as an insult to the court, 432.
fabrication, witnesses, 433.
bribery, 433.
writings, 434.
criminal cases, 434.
suppression, witnesses ; failure to call,
435.
equity causes, 435
equal availability, 435
effect of knowledge, 435.
explanation permitted, 435.
criminal cases, 435.
failure to testify, 436.
effect of inference, 436.
criminal cases, 43(5
removal or concealment, 437.
other modes of suppression, 437.
probative force of inference, 438.
statutory regulation, 43S.
strength of inducement to speak, 438.
writings, destruction, 430
explanation permitted, 43!)
administrative punishment and indul-
gence, 430.
admiralty, 439.
failure or refusal to produce, 440.
use of secondary evidence ; ( 1 ) spoliat-
ing party, 440.
use of secondary evidence; (2) non-
spoliating parly, 440.
refusal to produce on demand, 441.
summons, order of court, etc , 441.
social consequences of suppression, 441.
Presumptions cont'd.
suppression cont'd.
mutilation, alteration, etc., 442.
real evidence, 443.
mutilation, 443.
Pseudo-Presumptions,
pseudo-presumptions, 469.
conclusive presumptions, 68, 470.
scope of presumptions of this class-fictions,
471.
lost grant, 472.
inference of fact, 472.
when conclusive, 472.
presumption of malice in libel, 473.
express malice,. 473.
death of attesting witness in case of an-
cient writings, 474.
need of corroboration, 474.
effect of circumstances of suspicion, 474.
consequences of conduct, 475
presumption of law repudiated, 475.
good character, 476.
knowledge of law, 477.
knowledge of law by judge, 333.
instances of application, 477.
absence of probative force demonstrated,
477.
no inference of fact, 477
real nature of presumption, 477.
presumption of innocence, 400, 478.
general relations, 478.
an overstated rule, 479.
constitutional right, 479.
an anomolous survival from an earlier age,
479.
time covered by presumption, 479.
meaning of phrase, 480. v
no inference of fact, 480.
no inference of innocence, 480.
a double aspect, 480.
Scottish law, 4SU.
what inertia is reasonable, 480.
valueless as affirmative proof, 481.
treatment of prisoners in judicial admin-
istration, 482.
weighing the presumption of innocence,
483.
other views, 484.
presumption of survivorship, 485.
distribution of funds, etc., 485.
probative facts, 485
civil law, 485.
deliberative facts, 485.
no presumption of law, 485.
PREVENTION
surprise, of, 276.
witness, of, from attendance, as contempt of
court, 109.
PRICE LISTS
use for opinion of value, 744.
I^vDEX. (References are to Sections.}
1005
PRIEST
privileged communication to, 1165.
PRIMA FACIE CASE
denned, 409.
PRIMARY EVIDENCE
See also, ADMINISTRATION; BEST EVIDENCE;
FORMER EVIDENCE: PAROL EVIDENCE.
admissions by agents, 541.
adoption of another's admission, 544.
best evidence rule as applied to documents,
1121-1130.
evidence by perception, 229.
grades of, 228.
other primary evidence more probative, 231.
preferred to secondary, 227.
required, 227-243.
PRINCIPAL AND AGENT
See AGENCY
PRINCIPAL FACTS
evidentiary facts distinguished, 34.
PRINCIPLES OF ADMINISTRATION
See ADMINISTRATION.
PRISONERS
See CRIMINAL LAW.
PRISON RECORDS
admission of, 1083.
PRIVATE DOCUMENTS
See DOCUMENTARY EVIDENCE
parol evidence rule, 1109.
PRIVATE RECORDS
proof of, 272.
PRIVATE STATUTES
public statutes distinguished, 332.
evidence of, 1055.
PRIVIES
admissions by, 539.
PRIVILEGE
self-incrimination, against, 1179.
PRIVILEGED COMMUNICATIONS
privileged communications, 1160.
as to self-incrimination, 1179.
claims of privilege against self-incrimination
in former evidence, 621.
attorney and client; general rule, 1161. See
1154.
when applied. 1162.
exceptions, 1163.
waiver by client of privilege, 1164.
clergymen, 1165.
husband and wife: general rule, 1155, 1166.
Privileged Communications cont'd.
physician and patient; privilege is of statu-
tory origin, 1167.
public justice; grand jurors, 1158, 1168.
petty or traverse jurors, 1158, 1169.
secrets of state, 1170.
PRIZE COURTS
judicial knowledge of law, 324.
PROBABILITIES
railroads, of, skilled witnesses as to, 391.
PROBATE COURTS
admission in records of, 552.
admissions, proof of, 527.
completeness of proof of papers of, 271.
documents in, admission of, 1063.
judicial knowledge as to, 342.
jury trial in, 216.
presumption of regularity of acts of, 493.
presumption of validity of acts of, 492.
probate of will, burden of proof on, 399.
proof of appointment of administrator, 271.
proof of record of, 1071.
proof of records of, 1077.
records of, 1065.
PROBATIVE FACTS
See also, FACTS.
character as, 1036.
component contrasted, 30.
principal facts distinguished, 34.
proof of other acts to show, 1024.
PROBATIVE FORCE
account books, of, 995.
admissions by silence, of, 562.
admissions, of, 531.
admissions of by conduct, of, 572.
character evidence, of, 1043, 1047.
confessions, of, 608.
dying declarations, of, 909.
evidence, of, comment by judge, 129.
extra-judicial admissions, of, 523. 558.
inference from non-entry, of, 667.
informal judicial admissions, of, 515.
instructions as to, 131.
judicial admissions, of. 500.
medical opinion, of,- 726.
opinion of ordinary observer as to, 708.
opinion of subscribing witness, of, 710.
opinion of value, of, 761.
opinions, of, 824-836.
presumptions against wrong doing, of, 495.
presumption from spoliation, of, 438.
presumption of death after absence for seven
years, of, 452.
presumptions of fact, of, 415.
presumption of regularity, of. 490.
primary evidence not the question of, 231.
reasoning by witnesses, of, 824-836.
spontaneous statements, of, 975.
1006
INDEX. (References are to Sections.)
Probative Facts cont'd.
presumption of receipt of mail from mail-
ing, of, 427.
PROBATIVE RELEVANCY
See RELEVANCY.
PROCEDURE
applied by judge, 64, 71.
assumptions of, 444.
assumption of regularity in, 492.
best evidence as a rule of, 237.
defined, Go.
enforcement of order for separation of wit-
nesses, 91.
introduction of confession, 605.
judicial knowledge as to, 343.
rights of parties to observance < of, 66.
substantive law distinguished, 69.
violation order for separation of witnesses,
94.
rights relating to, 66.
PROCEEDINGS
See SPECIAL PROCEEDINGS.
legislative, judicial knowledge of, 341.
PROCESS
obstruction of service of, as contempt, 107.
presumption of regularity of service, 493.
PROCLAMATION
evidence of, 1057.
governor of, judicial knowledge as to, 337.
PROCREATION
judicial knowledge of, 336.
power presumed, 423
PRODUCTION
documentary evidence, of, 103. 441, 1058,
1097, 1129
PRODUCTS
farms, of, judicial notice of, 362.
PROFESSION
judicial notice of, 362.
PROFESSIONAL FACTS
skilled witnesses as to, ,390.
PROGNOSIS
opinion? as to, 722.
PROMISSORY NOTE
See NEGOTIAHI.I; INSTRUMENTS.
PROMOTION
justice, of, as function of judicial office, 70.
PROOF
defined, 7.
evidence contrasted, 7.
right to produce, 148 et al.
PROPERTIES
matter, of, other occurrences to show, 1006.
matter, of, skilled witness, 383.
PROPERTY
judicial notice of value of, 358.
PROSECUTING ATTORNEY
judicial notice of, 343.
testimony of, as to confession, 614.
See also DISTRICT ATTORNEY.
PROSECUTION
See MALICIOUS PROSECUTION.
burden of proof on, 400.
PROSECUTOR
admissions by, 538.
PROTECTION
witnesses, of, 109, 295.
jury, of, 660.
PROTOCOLS
attached to treaty, judicial knowledge of,
327.
PROVOCATION
absence of, dying declarations as" to, 908.
unsworn statements to show, 851.
PRUDENCE
conduct, of, conclusion as to, 800.
PSYCHOLOGICAL CONDITIONS
expert evidence as to, 812.
PSYCHOLOGICAL FACTS
dying declarations to show, 908.
opinion as to, 701, 711.
physical facts distinguished, 27.
proof of, 656
subject of admissions, 528.
PSYCHOLOGY
induction, 1018.
PUBLIC
admittance to court room, 79, 80.
PUBLICATIONS
Sec also, LIRKI. : NEWSPAPERS.
official, judicial knowk-d'-e as to, 335.
IXDEX. (References are to Sections.)
1007
PUBLIC DOCUMENTS
See also DOCUMENTS.
in general
public documents; definition of, 1048.
ancient, 1107.
construction of, as question of law, 57.
judicial knowledge of court records, etc., 344.
parol evidence as to, 1120.
principle controlling admissibility, 1049.
objection that they should not be removed,
1050.
equally admissible as copies, 1051.
where not kept in strict conformity to statu-
tory requirements, 1052.
authentication: necessity of, 1053.
execution denied, 1053.
mode of, 1054
legislative acts; domestic, 1055.
sister state, 1055.
foreign. 1055.
ordinances, 1056.
statutes: requiring keeping of record or
journal, 1056.
necessity of authentication, 1056.
as to admission in evidence of bound vol-
umes, 1056.
papers and documents relating to affairs of
state, 1057
compelling production of, 1058.
official registers, papers and writings
public documents : official registers, papers
and writings, 1080.
certificates by public officers, 1081.
particular documents, 1082.
land records of grants and patents, 1082.
official maps, 1082.
inventories, 1082.
military and naval records, 1082.
municipal records, 1082.
election certificates, registry lists, etc.,
1082.
bond registers, 1082.
birth, death and marriage registers, 1082.
letters of an official character, 1082.
county records, 1082.
federal official records, 1082.
clerks of courts; records kept by, 1082.
school records, 1083.
prison records, 1083.
town officials' records, 1083.
weather records, 1083.
tax books, etc., 1083.
state officials' records, 1083.
surveyors' records, 1083.
sheriff's books and records, 1083.
private writings of record; conveyances, 1084
copies and transcripts
copies and transcripts: official registers,
papers and writings, 1085
mode of proof: statutory provisions, 1085.
mode of proof; certified copies, 1086.
limitations on power, 1086.
Public Documents cont'd.
mode of proof cont'd.
mode and sufficiency of authentication,
1086.
who may certify, 1086.
land office records, 1087.
official letters, 1087.
administrative requirements, 1087.
ordinances, 1088.
records of private writings, 1089.
early established rules in New England
states, 1089.
statutory regulation, 1089.
administrative requirements, 1089.
records of other states, 1090.
records of private writings, 1090.
foreign records, 1091.
copies and transcripts; judicial records
copies and transcripts; judicial records,
1066.
exemplifications, 1067.
examined or sworn copies, 1068.
office or certified copies, 1069.
authentication, 1069.
justice's courts, 1070.
probate courts, 1071.
federal courts, 1072.
of other states, 1073.
attestation of the clerk, 1074.
certificate of the judge, 1075.
justices of the peace, 1076.
probate courts, 1077.
state courts in federal courts, 1078.
foreign courts, 1079.
judicial
judicial records: administrative require-
ments, 1059.
in same court and in another court, 1060.
minutes or memoranda; when admissible,
1061.
when not admissible, 1061.
judicial records: effect when perfected, 1062.
extent to which admissible, 1063.
matters not properly part of, 1063.
pleadings. 1063.
incidental matters, 1063.
executions and returns, 1063.
justices of the peace, 1064
administrative requirements, 1064.
duty imposed by statute, 1064.
probate courts, 1065.
copies of, 1066-1079.
See COPIES.
PUBLIC HEALTH
judicial notice of facts of, 354.
PUBLIC LANDS
declarations as to, 894.
PUBLIC MATTERS
declarations as to
declarations as to matters of public and
general interest, 889.
1008
INDEX. (References are to Sections.}
Public Matters cont'd.
administrative requirements; necessity, 890.
subjective relevancy; adequate knowledge,
Mil.
absence of controlling motive to misrepre-
sent, S!)2.
form of declaration, S'.):>.
scope of rule; boundaries, etc., 894.
PUBLIC OFFICERS
acts of, judicial knowledge as to, 335.
hearsay by, >>">!>.
papers of, see PUBLIC DOCUMENTS.
presumption of regularity in acts of, 493.
reports of, 1003.
returns of, admissions in, .~>f>2.
separation of witnesses, 90.
statutes creating are public, 332.
PUBLIC PROSECUTOR
confession induced by, 592.
presumption of regularity of acts of, 493.
See also, DISTRICT ATTORNEYS.
PUBLIC RECORDS
admissions in, '>'>'!.
completeness demanded, 261-271.
parol evidence of, 151.
right of opponent to read parts, 273.
PUBLIC STATUTES
defined, 332.
evidence of, 103.).
private statutes contrasted, 332.
See also, STATUTES.
PUBLIC SURVEYS
Sec SURVEYS.
PUNISHMENT
for crime prescribed -by substantive law, 67.
failure of witness to appear, 1147.
PURPOSE
opinion as to, 712
other acts to show, 1014.
testimony of person as to, 656.
QUALIFICATIONS
character witness, of. lO.'JS.
handwriting opinion, 770.
interpreters, of. 151.
judge, of, judicial knowledge of, 342.
medical witnesses, of, 72.'!.
opinion of value, for, 74ti, 753.
opinion witnesses, of, S24, *2t!.
presumption of continuance, 419.
QUALITY
land, of, opinion as to, 718.
opinion as to, 740.
QUARANTINE
judicial knowledge as to regulations for, 339.
QUESTIONS
restricting repetition of, 304.
QUO WARRANTO
jury trial in, 214.
RACE
appearance in court to show, 1134.
competency of witnesses, 1158.
opinion as to, 693.
proof of, 945.
proof of, by admissions, 557.
RAILROAD PLATFORM
opinion of safety of, 699.
RAILROADS
See also, STREET RAILWAYS.
admissions in books of, 547.
estimate of speed of cars, 740.
expert evidence as to, 814.
judicial knowledge of, 355.
judicial knowledge of reports of, 335.
judicial knowledge of statute organizing, 332.
judicial notice of history of, 359.
judicial notice of operation of, 362.
opinions as to matters of, 731.
res ipsa loquitur, 415
skilled witnesses as to matters of, 391.
RAINS
judicial notice of seasons, 353.
RANGE LINES
judicial knowledge of, 338.
RAPE
complaint in, 976
declarations of complainant, 969.
evidence of reputation in, 1033.
other offenses, evidence of, 839.
presumption of capacity of children, 463.
RATIFICATION
treaty, of, judicially known, 327.
REAL ESTATE
admissions in books of agent, 547.
admissions by privies, 53!).
judicial notice as to. 362.
opinion as to change in value, 749.
opinion of value of, 757, 760
[roof of ownership of, bv oral evidence,
1128.
proof of plots of lots, 262.
quality of, opinion as to, 718.
title to, opinion as to, 721.
IXDEX. (References are to Sections.)
1009
REAL EVIDENCE
admission of, 1131-1139.
See also, PEKCEPTION, EVIDENCE BY.
evidence by perception, 229
personal evidence distinguished, 21.
spoliation of, presumption from, 443.
trial by inspection, 61.
REARRANGEMENT
cases on docket, of, as grounds of continu-
ance, 283.
REASON
hearsay rule, for, 8(56, 867.
right of litigant to, 179.
unsworn statements to show, 851.
REASONABLE CAUSE
malicious prosecution, in, 56.
REASONABLE DOUBT
defined, 409.
proof in criminal cases, beyond, 409.
REASONABLE TIME
as question of law, 56.
REASONING
considered, 643-653.
characteristic of administration, 74.
use of, by jury, 56.
use of in order of evidence, 165.
rules of, testimony as to, 53.
element of observation, 824.
mental powers, 824.
adequate knowledge, 824.
how weight is tested; detail of preliminary
facts, S25
qualifications of witness, 826.
inferences tested; when tests are applied, 827.
probative force of inferences from observa-
tion ; stage of rebuttal, 828.
probative force of judgments; how enhanced;
use of text-books. 829.
how tested on cross-examination, 830.
stage of rebuttal, 831.
use of standard treatises ; deliberative effect,
832.
weight of inferences; a question for the jury,
833
reason essential and sufficient, 834.
comparison between inferences from obser-
vation and reasoning from assump-
tions, 835.
weight of judgments; a field of conjecture,
836.
witnesses, by, 672-687.
See also WITNESSES.
See LOGIC.
REBUTTAL
evidence in, 156.
exclusion of anticipatory, 176.
explanation of possession of stolen goods, of,
465.
inferences from silence, 562.
inferences of acquiescence from silence, 566.
inferences on, 828, 831.
See WITNESSES.
presumptions, of, 415.
from spoliation, 430.
coercion, of, 462.
death, of, 461.
death after absence of seven years, of, 451.
identity from similarity of name, of, 488.
larceny from possession of stolen goods, of,
*464.
legitimacy, of, 448.
malice from homicide, of, 468.
ownership from possession, of, 489.
receipt of mail matter from mailing, of,
427.
receipt of telegrams, of, 429.
regularity, of, 428.
right of, 173.
subsequent, 178.
use of experts in, 175.
RECALLING
witnesses, of, 1178, 1179.
RECEIPT
telegrams, of, presumption of, 429.
RECEIPTS
absence of, as negative evidence, 667.
government officials, by, admission of, 1082.
parol evidence rule, 1109.
proof of, 1099.
sufficiency of evidence to control effect ol,
411
RECEIVING STOLEN GOODS
evidence of reputation in, 1033.
other offenses as part of res gestce, 839.
other offenses to show, 1012.
other offenses to show knowledge, 1011.
RECISSION
written instrument, of, sufficiency of evi-
dence of, 411.
RECITALS
ancient deeds, in, 1103n.
RECOGNITION
foreign governments, of, judicial knowledge
of, 336
RECOGNIZANCE
for appearance of witness, 1144.
RECORDER OF DEEDS
judicial knowledge of signature and seal of,
340.
1010
l.NDKX. differences are to Sections.)
RECORDS
See also, DOCUMENTARY EVIDENCE; PUBLIC
Doer. MEMS; PAROL EVIDENCE RULE.
absence of, as negative fact, (i(i7.
commercial agencies, 1093.
corporations, 10'.)2.
court, judicial knowledge of, 344.
ecclesiastical, 1094.
existence of, determined by inspection, 61.
family, 940.
family, to prove manager, 943.
nautical, lil'.io.
secret society, 10!l6.
use of, to discover matters of judicial no-
tice, 360
REDEMPTION
from tax sale, record of, 1083
REDIRECT EXAMINATION
right of. 1177.
REFEREES
presumption of regularity of acts of, 493.
REFORMATION
instrument of, sufficiency of evidence for, 411
writing, of, parol evidence rule, 1117.
REFUSAL
to produce documents, presumption from,
440.
REGISTERED LETTERS
record of, 10S:i
REFRESHING MEMORY
private memoranda for, 1098.
unsworn statements for, 852.
use of memoranda, 1173.
with hearsay memoranda, 862.
REGISTERS t
deeds, of, presumption of regularity of acts
of, 4!i:3.
judicial knowledge of signatures and seals of,
340.
probate, of, certificate of, 271.
probate, of, 'presumption of regularity of acts
of. 4!)3.
pedigree, of, proof of, 309.
REGISTRY LISTS
admission of, 1082.
REGULARITY
entries in course of business, 9fcl.
presumptions of, 423-429.
presumptions of, 490-493.
relevancy of, 914, 921.
relevancy of, shop books, 977-995.
REGULATIONS
goveinment departments, of, 339.
post oflice, of, presumption of knowledge of,
477.
REJOINDER
burden of proof on plea in, 398.
RELATIONSHIP
See also, PEDIGREE.
pedigree statements as to, 946.
proof of, 946
reputation to show, 934.
tradition to show, 935.
RELATIVES
party, of, admissions by, 540.
RELAXATION
canons, of, 654-6->6.
RELEASES
parol evidence rule, 1108.
sufficiency of evidence of, cancellation of, 411.
RELEVANCY
in general
admissions, of, 531, 532
character evidence, of, 1027.
conclusions from observations, of, 793.
dying declarations, of, 897.
expert opinion, of, 715.
hearsay, evidence, of, 870, 871.
logical, denned, 3(i.
opinions, of. 073, 681.
opinion of value, of, 752.
pedigree declarations, of, 928.
regularity, of, shop books, 977-995.
relevancy, 640.
underlying conception, 640.
meaning of terms, 640.
res inter alius, 1000, 1001.
similarity, of, 996-1024.
.See also, KES INTER ALIOS.
spontaneous declarations, 950.
Stephen's definition, 641.
Stephen's definition considered, 642.
subjective, denned, 30.
relevancy, probative
canons of relaxation; claim of. the crux, 654.
direct and circumstantial evidence, 655.
inherent difficulty of proof, 656.
moral qualities, 656.
mental state, 656.
value, 6.10
" state of the case," 656.
facts of family history, 656.
mental condition, 656.
ancient facts, 656.
identity, 656.
canons of requirement; must accord equal
privileges, 057.
definiteness demanded, 658
IXDEX. (References are to Sections.)
1011
Relevancy cont'd.
canons of requirements cont'd.
time must be economized, 65!).
jury must be protected, 600.
fact must not be remote, 661.
time, 662.
proving the res gestse, 663.
action of Appellate Courts, 663.
optional admissibility, 664.
antecedent or subsequent facts; ante-
cedent, 664.
subsequent, 664.
consistent and inconsistent facts, 665.
explanatory or supplementary facts, 666.
negative facts, 667.
failure, to see, hear, etc., 667.
ignorance of alleged fact, 667.
absence of entry, record, etc., 667.
preliminary facts, 66X.
probative relevancy; objective and sub-
jective, 669.
independent sufficiency not required,
669.
court and jury, 669.
ignorance and other subjective impair-
ment, t>6!.
objective; ancillary facts, 670.
corroboration and impairment, 670.
burden on proponent, 670.
effect of substantive law, 670.
subjective, 671.
RELIGION
dying declarant, of, 'Jll.
judicial notice of, 358.
judicial notice of history of, 359.
REM
actions in, burden of proof, 399.
REMEDIES
See PROCEDI RE.
prescribed by substantive law, 67.
REMOTENESS
admissions, of, 532.
facts excluded on ground of, 661.
spontaneous statements, of, 1)65.
REMOVAL
documents, of, presumption from, 442.
witnesses, of, presumption against party, 437.
RENTAL VALUE
.See VAI.TE.
basis for opinion of value, 763.
REPAIR
machinery of, opinion as to, 718.
REPEAL
statute, of, judicially known, 331.
REPETITION
questions, of, restricting, 304.
REPLICATION
burden of proof as to, 346.
REPLY
letter received, 274.
See also, REPLICATION.
REPORTS
See also, MARKET REPORTS.
admissions in, 548.
commercial agencies, of, 1093.
constable, of, 922.
department, judicial knowledge as to, 335.'
public officials, of, 1063, 1082.
railroad company, of, admissions in, 547.
surveyors, of, 1063.
REPRESENTATIONS
unsworn statements to show, 843.
REPRIMANDS
of counsel, by judge, 292.
witnesses, of, 293.
REPUTATION
as character, 656, 1037.
See also, CHARACTER.
as proof of sanity, 709.
corporate existence, 948.
death proved by, 942.
evidence of, 854, N74.
good, presumed, 855. .
insanity, of, 656
matters of public or general interest, 893.
marriage proved by, 943.
parentage, of, 946.
pedigree of animal, 938.
pedigree proved by, 934.
proof of names by, 944.
proof of residence, 947.
proof of status by, 948.
relevancy, 1043.
testimony based on, 864.
RESCISSION
subsequent, of writing, parol evidence rule,
1116.
writing, of, parol evidence rule, 1117.
RESEMBLANCE
opinions as to, 740.
proof of parentage by, 1135.
RES GEST.E
in general
completeness, 250.
evidence limited to, 157.
independent relevancy of unsworn state
ments: meaning of the res gesta% 838.
contiguity, intimate relation, etc., excused,
838.
constituent facts contrasted, 31.
facts, 3.1.
no implication of action, 838.
contemporaneousness not demanded, 838.
1012
INDEX. (References are to Sections.}
Res Gestae jont'd.
facts cont'd.
distinct criminal offenses, 839.
dissimilar offenses, 839.
larceny, 839.
homicide, 839.
assault, 839.
extra-judicial statements part of the res
gestip, 840.
constituent facts, 840.
existence of the statement itself, 841.
evidence is primary, S42.
forms of statements, 843.
extra-judicial statements as probative facts,
844.
bodily sensation, 845.
who may testify as to statements, 845.
a matter of necessity, 845.
identification, 846.
mental condition, 847.
intent and intention, 848.
illustrative instances, 849.
knowledge, 850.
statements by A., 850.
statement to A., 850.
illustrations, 851.
extra-judicial statements as deliberative
facts, 852.
form of statement ; oral, 853.
reputation, 854.
libel, etc., 855.
administrative details, 856.
admissions, 538, 542.
judicial notice of, 351
private writings as, 1098.
proof by dying declarations, 908.
proving, 003.
stolen goods, statements as to, 465.
spontaneity
hearsay as primary evidence, 949.
relevancy of spontaneity, 950
declarations part of a fact in the res gestae,
951.
relevancy to fact, asserted, 952.
statement must be contemporaneous, 953.
the principle of the res gestae, 954.
relation to the rule against hearsay, 955.
the modern view, 95(5.
considerations determining spontaneity,
957.
elapsed time. 958.
form of statement. 959.
consciousness and lack of motive to mis-
state, 960.
permanence of impression, 961.
physical state or condition, 962.
narrative excluded: admissions, 963.
spontaneous statements by agents, 964.
remoteness, 965.
range of spontaneous statements; probative
facts preceding the res gests, 966.
probative facts subsequent to the res gestae,
967.
Kes Gestae cont'd.
range of spontaneous statements cont'd.
accusation in travail, 968.
declarations of complainant in rape, 969.
American rule, 970.
independent relevancy; failure to com-
plain, 971.
the element of time; independent rele-
vancy, 972.
declarations of owner on discovering lar-
ceny, etc , 973.
personal injuries, 974.
probative weight of spontaneous statements,
975.
who are competent declarants, 976.
RESIDENCE
evidence as to, 947. .
pedigree declarations as to, 930, 932, 947.
presumption of continuance, 422.
RES INTER ALIOS
in general
other offenses, part of res gestae, 839.
.See also, RES GESTAE.
relevancy of similar occurrences; uniformity
of nature, 996.
preliminary observations; rule an assignment
of irrelevancy; true ground of rejec-
tion, 997.
rule stated, 998.
administrative requirements; necessity, 999.
relevancy, 1000.
relevancy of similarity, 1001.
essentially similar occurrences, 1002.
experiments, 1003.
varying phenomena, 1004.
relevancy of dissimilarity, 1005.
replies of opponent, 1005.
inferences other than similar occurrences,
1006.
other uniformities than that of physical na-
ture; regularity of law or business;
habits, 1007.
moral uniformity
res inter alios, 1008
administrative requirements, 1009.
relevancy of similarity, 1010
proof of mental state, 1011.
knowledge, 1012.
malice, 1013.
other mental states, 1014.
motive, 1015.
unity of design, 1016.
relevancy of dissimilarity, 1017.
psychological induction, 1018.
inferences other than conduct, 1019.
constituent facts, 1020
contradiction. 1021.
corroboration or explanation, 1022.
identification of doer of act; essential con-
ditions for conduct, 1023.
probative facts, 1024.
See CHARACTER.
INDEX. (References are to Sections.)
1013
RES IPSA LOQUITUR
as a presumption, 415.
RESOLUTIONS
legislative, of, judicial knowledge of, 329
RESPONSIVENESS
See IRRESPONSIVENESS.
RESULTS
law, of, judicial knowledge of, 334, 337.
law, of, judicial knowledge of state affairs,
337.
legislatures, of, judicial knowledge of, 341.
RE-SURREBUTTAL
right of, 17*.
RETURNS
officer, of, admissions in, 552.
REVOCATION
agency, of, admissions by agent, 540.
unsworn statements to proof, 843.
RIVERS
judicial knowledge of, 355
ROADBED
railroad, of, skilled witnesses as to facts con-
cerning, 391.
ROBBERY
other acts to show intent, 1011.
other offenses as res gest<r, 839.
RULES
court, of, as matter of procedure, 71.
government departments, of, judicial knowl-
edge of. 338.
practice, of, judicial knowledge of, 343.
RULINGS
of law, judge sitting as jury, 115.
RUMOR
evidence of. 875.
to show good character, 1037.
SAFETY
animals, of, opinion of, 711.
mining, of, experience as to, 813.
opinion as to, 699.
SALARIES
judges, of, judicial knowledge of, 342.
municipal officers, of. judicial knowledge of,
337.
policemen, judicial knowledge of, 334.
SALES
See also, BILLS OF SALE.
account books to show, 990.
lumber, of, judicial notice of, 361.
proof of, by oral evidence, 1128.
,secondary evidence of, 151
unsworn statements to show, 843.
SANITY
See also, INSANITY.
accused of, burden of proof of, 400.
dying declarant, of, 912.
general reputation, as proof of, 709.
opinion of ordinary observer as to, 702.
opinion of physician as to, 709, 722.
opinion of physician, 722.
presumption of, 404, 424.
presumption of, 424.
presumption of capacity for crime, 463.
presumption of continuance, 421.
unsworn statements to show, 847.
SCHEDULES
admissions in, 552.
attached to treaty, judicial knowledge of, 327.
SCHOOL RECORDS
admission of, 1083.
SCIENCE
books as hearsay, 877.
common knowledge as to, 354.
evidence as, 22.
explanation of terms, by judge, 131.
judicial knowledge of facts of, 354.
special knowledge as to, 380-391.
testimony as to facts of, 380.
SCINTILLA
evidence, of, not sufficient, 190.
SCOPE
dying declaration, of, 908.
hearsay rule of, 868
of law of evidence, 3.
SEAL
admiraltv courts, of, judicial knowledge of,
344.
admissions in instruments under. 549.
authentication of record under, 1069.
corporate, affixed to instrument, 1101
corporate, presumption of authority to affix,
425.
copy of ordinance attested by, 1088
document, on, determination by inspection, 61.
federal courts, of. judicial knowledge of. 344.
national, judicial knowledge of. 340
notary, of, judicially known, 324, 344.
SEALED INSTRUMENT
cancellation of, sufficiency of evidence of, 411.
INDEX, (llep-n-nrcx arc to tedious.)
SEARCH
lost document, for, 1125.
SEASONS
judicial notice of, 353.
SECONDARY EVIDENCE
See FORMER EVIDENCE; HEARSAY; PABOL
EVIDENCE Rri.i:; BEST EVIDENCE.
best evidence rule as applied to documents,
1121-1130.
defined, 11.
decrees of, 235.
handwriting, of, 7G5-770.
hearsay, as, 880.
necessity for use of, 233, 234.
right to produce, 150-152.
use of, upon spoliation of primary evidence,
440.
SECRECY
in commission of civil wrong, 430.
SECRETARY OF STATE
presumption of regularity in acts of, 493.
proof of public documents of, 1057.
SECRET SOCIETIES
records of, 1006.
SECTA
witnesses, 120.
SECTION LINES
judicial knowledge of, 338.
SEDUCTION
character evidence in, 1035.
evidence of reputation in, 1033, 1035.
presumption of chastity, 476 n.
resemblance as evidence of paternity, 1135.
Kiiih'cien -y of evidence in civil case, 410.
SEIZIN
presumption of continuance, 418.
SELECTMEN
records of, 1083.
SELF-DEFENSE
burden of evidence as to, 404.
SELF-INCRIMINATION
comparison of handwriting, 786.
former evidence of witness claiming, 621.
privilege of, 597-601, 1178.
See also, CONFESSIONS.
SELF-PRESERVATION
presumption of instinct of, 424.
SELF-SERVING DECLARATIONS
See also, DECLARATIONS.
declarations as to matters of public or gen-
eral interest, 892.
entries in course of tmsiness, 919.
letters, in, 550.
part of admission, 531.
proof of, 566.
spontaneous declarations, see RES GEST^E.
SEPARATION
witnesses, of, 85, 103.
SERVICE
process, of, obstruction as contempt, 107, 108.
SERVICES
account books to show, 990
opinion of value of, 757, 760.
SESSIONS
court, of, judicial knowledge of, 342.
legislative, judicial knowledge of, 341.
-i
SET OFF
burden of proof on, 398.
SETTLEMENT
account of, oral evidence to show, 1128.
admissions in, 548.
efforts at, 559.
offer of, see Coil PROMISE, OFFERS OF.
SETTLEMENT CASES
pedigree declarations in, 930
SEXUAL OFFENSES
exclusion from court room at trial of, 83.
other acts to show intent, 1011.
See also, RAPE: SEDUCTION.
SHERIFF
deed of, proof of, 1101.
enforcement of order for separation of wit-
nesses, ill.
judicial knowledge of, 337, 343.
judicial knowledge of signature and seal of,
340.
judicial notice of, 343.
presumption of regularity of acts of, 493.
record to show execution of bond by, 1082
records of, admission of, 1083.
SHIFTING
burden of proof, 395
SHINGLE
account on, 988.
SHIPS
opinion as to, 718.
skilled witnesses as to, 387.
INDEX. (References are to Sections.)
101
SHOP BOOKS
shop book rule, 977.
administrative requirements; necessity, 978.
relevancy; adequate knowledge, 979.
absence of controlling motive to misrepresent,
980.
parol evidence of, 152.
presumption of genuineness, 425.
failure to object to entries, 563.
admissions in, 547.
suppletory oath, 981.
books must be those of original entry, 982.
corroboration aliunde, 983.
entry must be intelligible, 984.
entry on book account must have been a rou-
tine one, 985.
facts creating suspicion, 986.
identity of book must be established, 987.
material used, 9S8.
original must be produced, 989.
scope of evidence, 990.
nature of charges: special contract, 991.
other matters, 992
nature of occupation, 993.
who may be charged, 994.
weight, 995.
See also, ENTRIES ix COURSE OF BUSINESS.
SHORTHAND
entries in account books in, 984.
SICK BENEFITS
receipt of, as evidence of sickness, 559.
SICKNESS
adjournments to another place on account of,
S4.
evidence of, 693.
exemption from court attendance on account
of, 1140.
opinion of cause of, 739.
witness of, former evidence, 019, 629.
witness, of, justifies secondary evidence, 234
SIDEWALK
opinion of safety of, 699.
SIGHT
ability of, opinion as to, 737.
failure to see, as negative evidence, 667.
loss of, by witness, former evidence, 629.
presumption as to, 423.
SIGNATURES
See also. HANDWRITING.
attorneys, of, judicial notice of, 343.
documents, to. proof of. 1099.
judicial knowledge of. 340.
letter, on, presumptions of irenuineness, 425.
notary public, of. judicial knowledge of, 344.
SIGNS
dying declarations in form of, 905.
evidence by, 1148.
opinion of genuineness of, 764.
SILENCE
admissions by, 500-564, 566, 571.
admission by agent by, 542.
confession, as a, 003.
SIMILARITY
name, of, presumption of identity, 488.
relevancy of, 996-1024.
See also, RES INTER ALIOS.
SIMILAR OCCURRENCES
See RES INTER ALIOS.
SIMPLE FACTS
See also, FACTS.
compound contrasted, 27.
SIZE
municipal divisions, of, judicial knowledge ol
338.
SKILL
capacity, proof of other acts to show, 1023.
conclusion of witness as to, 800.
opinion that workman habitually uses, 694.
physician of, reputation to show, 874.
SKILLED WITNESS
See EXPERTS; KNOWLEDGE; WITNESSES.
SLANDER
character evidence in, 1030.
evidence of, reputation in, S55, 1035.
SMELL
See also, ODOR.
ability to, opinion as to, 737.
SOCIAL LIFE
judicial notice of facts of, 358.
SODOMY
declarations of complainant in, 969 n.
SOLVENCY
conclusion as to, 795.
opinion as to, 691
presumption of continuance of. 422.
See also, INSOLVENCY.
SOUND
estimate of, 740
ability to hear, opinion as to. 737.
firearms, of, opinion as to, 719.
SOUNDNESS
opinion as to, 699
SPACE
conclusion as to sufficiencv of, 796.
1016
INDEX. (References are to Sections.}
SPECIAL AGENCY
See AGENCY.
SPECIAL FINDINGS
See FINDINGS.
SPECIAL INTERROGATORIES
See INTERROGATORIES.
SPECIAL KNOWLEDGE
See KNOWLEDGE; SPECIAL.
SPECIAL PROCEEDINGS
jury trial in, 214.
SPECIAL TERMS
presumption of validity of acts of, 492.
SPECIAL VERDICTS
See VERDICTS.
SPECTATORS
applause of, prevented, 200.
exclusion from courtroom, 83.
SPECULATION
excluded, 802.
SPEED
estimate of, 740.
SPENDTHRIFT
admissions by, 534.
SPOLIATION
presumption from, 430, 439.
SPONTANEOUS DECLARATIONS
See RES GEST..
STANDARDS
measurement, judicial notice of, 354.
STANDARD TREATISES
use of, 369.
hearsay, as, 877.
STARE DECISIS
application to law of evidence, 118.
STATE COURTS
judicial knowledge as to written laws, 329.
judicial knowledge of common law, 323.
judicial knowledge of treaties, 327.
STATE DEPARTMENTS
judicial knowledge of regulations of, 339.
STATE OFFICERS
judicial knowledge as to, 334.
presumption of regularity of acts of, 493.
records of, admission, 1083.
STATE PAPERS
proof of, 1057.
STATES
boundaries of, judicial knowledge of, 338, 355.
events distinguished, 35.
judicial knowledge as to officials of, 237.
judicial knowledge of seal of, 340.
judicial notice as to, 355.
right to jury trial, 217.
STATE SECRETS
privileged, 1170.
STATISTICS
census, of, judicial notice of, 354.
See also, VITAL STATISTICS.
STATUS
proof by reputation, 948.
STATUTE OF LIMITATIONS
See LIMITATIONS OF ACTIONS.
STATUTES
judicial knowledge of, see also KNOWLEDGE,
JUDICIAL; FOREIGN LAW.
construction of, as question of law, 57.
evidence of, 1055.
foreign, skilled witness as to, 386.
making certain facts prima facie evidence,
409.
presumption of knowledge of, 477.
presumption of legality of passage, 429.
private and public distinguished, 332.
presumption of similarity, 494
STENOGRAPHY
notes as a document, 16.
former evidence of notes, 638.
STIPULATIONS
admissions by, 502, 514.
STOCK
expert evidence as to, 811.
judicial notice of raising, 362,
raising, skilled witness as to matters of, 385.
transactions in, judicial notice of, 362.
STOCK BOOK
private corporation, of, 1092.
STOCKHOLDERS
judicial knowledge as to, 332.
STOCK OF GOODS
identification of, 697.
opinion of value of, 757.
STOCK RAISING
opinion as to, 718.
IXDEX. (References are to Sections.)
1017
STOLEN GOODS
See RECEIVING STOLEN GOODS.
possession of, presumption of larceny, 464-
467.
STREAMS
judicial notice of action of water, 353.
STREET RAILWAYS
See also, RAILBOADS.
estimate of speed of cars, 740.
expert evidence as to, 815.
judicial knowledge of incorporation, 332.
opinions as to matters of, 733.
res ipsa loquitor, 415.
skilled witnesses as to matters of, 391.
STREETS
judicial notice of, 355.
line of. evidence of, 1082.
opinion of safety of, 609.
other accidents to show knowledge of defects,
1012.
proof of location of, 1082.
STRENGTH
evidence of, 691.
materials of, skilled witnesses as to, 388.
STRUCTURE
opinion of safety of, 699.
SUBJECTIVE RELEVANCY
See also, RELEVANCY.
declarations against interest, 884.
declarations as to matters of public or gen-
eral interest, 891.
defined, 36.
dying declarations, 898.
entries in course of business, 918.
hearsay, evidence of, 870.
judicial evidence in domain of, 6.
opinions, of, 681.
of ordinary observer, 712.
SUBORDINATION
inferences from, 433.
SUBPOENA
attendance of witnesses, for, 1141.
SUBPOENA DUCES TECUM
production of documents, for, 1142
SUBSCRIBING WITNESS
See ATTESTING WITNESSES.
SUBSCRIPTION
parol evidence rule, 1108.
SUBSTANTIVE LAW
announced by judge, 64.
judge should aim to give certainty to, 305.
Substantive Law cont'd.
position of, in law of evidence, 22.
procedure distinguished, 69.
remedies prescribed by, 67.
ruling of judge, as to appeal, 306.
SUBSTANTIVE RIGHTS
protection of, 148-225.
See also, ADMINISTRATION.
SUCCESSION
seasons of, judicial nature of, 353.
SUFFERING
evidence of, 693.
statements to physician as to, 974.
unsworn statements showing, 845.
SUFFICIENCY
conclusion as to, 796.
SUICIDE
presumption against, 424.
SUI JURIS
presumption of, 424.
SUITABILITY
opinion of, 699.
SULKINESS
animals, of, opinions of, 711.
SUMMONS
See PROCESS.
for production of document, 441.
SUPERVISORS
judicial knowledge of, 342.
presumption of regularity of acts of, 493.
records of, 1082.
SUPPLEMENTARY FACTS
relevancy of, 666.
SUPPOSITIONS
excluded, 802.
witness stating, 673.
SUPPRESSION
See also, SPOLIATION.
documents, of, consequences of, 441.
document's, of, presumption against, 431.
evidence, of, presumption from. 435.
prosecution, of, efforts at, 559.
SUPREMACY
jury, of, 132.
SURETYSHIP
parol evidence rule, 1108.
SURGEONS
See also, PHYSICIANS.
opinions of, 722.
1018
INDEX. (References are to Sections.)
SURGERY
skilled witness as to, 3!)0.
SURMISES
do not constitute reasonable doubt, 409.
SURPRISE
as ground for adjournment, 77.
prevention of, 276-303.
See also, ADMINISTRATION.
SURREBUTTAL
right of, 177.
SURROGATE COURTS
See PROBATE COURTS
SURVEYING
judicial notice of, 338, 3G2.
copies of surveys, 1087.
declarations of surveyor as to boundaries, 891.
opinions as to, 718.
presumption of correctness of, 495.
report of surveyor, 1063, 1083.
surveyor's notes, as declarations of public or
general interest, 893.
SURVEYOR-GENERAL
presumption of regularity in acts of, 49
SURVIVOR
as witness, 1 157.
SURVIVORSHIP
presumption of, 485.
SWEARING
witnesses, of, !)f), !)6.
witnesses, of, compelled, 103.
SWORN COPIES
public documents, of, 10(i8.
SYMPTOMS
disease, of, skilled witness as to, 390.
evidence of, 601.
expert evidence as to, 812.
T
TASTES
presumption of continuance of, 421.
TAX BOOKS
admission of, 1083.
admissions in, 555
proof of, 262.
TAX COLLECTORS
judicial knowledge of, 337.
judicial knowledge of signature and seals cf,
340.
records of, 1083.
proof of, 1101.
TAX DEED
TAXES
judicial knowledge of assessments, 335.
judicial notice of payment, 358.
oral evidence to show payment of, 1128.
presumption as to assessment of, 493.
TAX SALES
records of, 1083.
TECHNICAL FACTS
expert opinion on, see EXPERTS.
testimony as to, 380.
TECHNICAL LANGUAGE
construction of, 57
skilled witness as to, 384.
TELEGRAMS
as unsworn statements, 843.
hearsay, as, 878.
presumption of receipt, 429.
secondary evidence of, 1129.
TELEGRAPH COMPANIES
judicial knowledge as to, 332.
TELEGRAPHING
judicial notice of, 362
opinions as to, 733.
TELEPHONE
admissions over, 556.
hearsay over, J-5!).
judicial notice of history of, 359.
presumption of authority of one answering,
425.
TEMPERATURE
swearing witness over, 98.
estimate of, 740.
TENANTS IN COMMON
admissions by, 536.
TENURE
office, of, presumed, 41!)
office, of, judicial knowledge as to, 334.
TERMS
court, judicial knowledge of length of, 342
judicial notice of medical, 362.
municipal ollicers, of, judicial knowledge of,
337.
ollice of judges, of, judicial knowledge of, 342
office of prosecuting attorneys, of, judicial no-
tice of, 343
sheriffs and constables, of, judicial knowledge
as to, 343.
TERRITORIES
judicial knowledge of seal of, 340.
INDEX. (References are to Sections.)
101
TESTATOR
death of, proof of, 1065.
TESTIMONY
See also, FOKMEB TESTIMONY.
admission by, 516.
as judicial evidence, 6.
defined, S
evidence contrasted, 8.
restricting repetition of, 304.
TEXT-BOOKS
as evidence of common knowledge, 369.
reference to legal, by judge, 333.
use by expert, 829, 832.
THEFT
declarations of owner upon discovery of, 973.
presumption from possession of stolen goods,
464-467.
THICKNESS
opinion as to, 740.
THREATS
as inducement for confession, 589, 590.
effect of, on admissions, 529.
TIDE TABLES
judicial notice of, 354 n.
TIME
biivh, of, pedigree statements, 941.
conclusion as to sufficiency of, 796.
economizing of, (>59, 662.
elections, of, judicial knowledge as to, 334.
estimate of, 740
hearing, of, surprise as to, 283.
judicial notice of divisions of, 353.
lapse of, presumption of payment, 469
making, of, admissions, 527
reasonable, as question of law, 56.
unsworn statement to show, 846.
TIME BOOKS
receipt o f , 982
TITLE
See also, ABSTBACT OF TITLE.
expert evidence af, 721
TITLE DEEDS
copies of records, 1089
TOBACCO
judicial notice of use of. 358.
TOOLS
experiment as to use of, 1138.
opinion as to, 718.
TOWN CLERKS
copies of ordinances, 1088.
presumption of regularity of acts of, 493.
records of, 1083.
record of, proof of ordinance, 1056.
TOWN COMMISSIONERS
records of, 1083.
TOWN OFFICIALS
records of, 1083.
presumption of regularity of acts of, 493.
TOWN RECORDS
proof of, 1083.
TOWNS
See MUNICIPAL CORPOBATIONS.
judicial notice of, 355.
judicial knowledge of boundaries of, 338.
judicial notice of growth of, 359.
right to jury trial, 217.
TOWNSHIP COMMITTEES
presumption of regularity of acts of, 493.
TOWNSHIPS
See TOWNS.
TOWN TREASURERS
presumption of regularity of acts of, 493.
records of, 1083
TOWN TRUSTEES
deed of, proof of, 1101.
presumption of regularity of acts of, 493.
TRACK
opinion of safety of, 699.
TRACKING
by bloodhounds, 797.
TRACKS
horses, of, opinion as to, 696.
opinion of ordinary observer, 695, 697.
opinion as to, 720.
TRADE CIRCULARS
use for opinion of value. 744.
TRADE MANUALS
use of, 369
TRADESMEN
account books of, 993.
TRADE TABLES
judicial notice of. 354.
TRADING
judicial notice of, 362.
TRADITION
evidence of, 876
matters of pedigree, 935.
1020
INDEX. (References are to Sections.)
TRAINED NUKSE
See NUBSE.
TRAITS
See CHARACTER.
TRANSCRIPTS
public documents, of, 1060-1079.
See also, PUBLIC DOCUMENTS.
records of, 1085-1091.
TRANSLATION
documents in foreign language, 153.
TRANSMISSION
See TRANSPORTATION.
TRANSPORTATION
See also, RAILROADS : STREET RAILWAYS.
judicial notice as to, 362.
mail, of, presumption of regularity, 426,
skilled witnesses as to matters of, 391.
TRAVAIL
accusation in, 968.
TREASURY DEPARTMENT
judi^l knowledge of regulations of, 339.
TREATIES
judicial knowledge of, 327.
TREATISES
use by expert, 829.
use of, in matters of judicial notice, 369.
TREATMENT
disease, of, skilled witness as to, 390.
TRIALS
See also, NEW TRIALS.
early forms of, 120
expedition of, 304.
inspection, by, 61
right of party to jury, 205.
witnesses, by, 120.
TROLLEYS
See STREKT RAILWAYS.
TRUSTEES
admissions by, f>.'!7
deeds of, proof of, 1 101
presumption of continuance of tenure, 419.
TRUTH
reputation for, 1033.
TYPEWRITING
opinion identifying, 767
U
UNCONSCIOUSNESS
opinion of, 701.
UNCONTROVERTED FACT
comment by judge on, 128.
UNDERSTANDING
opinion as to, 711
witness's, not received, 859.
witness stating his, 673.
UNDERTAKERS
skilled witnesses, as, 390.
UNDUE INFLUENCE
opinion as to, 712.
unsworn statements to show, 851.
UNIFORMITY
moral, 1008-1024.
See also RES INTER ALIOS.
moral, character, 1026-1047.
UNIMPORTANT EVIDENCE
exclusion of, 059.
UNINCORPORATED ASSOCIATIONS
contempt of court by, 103.
UNITED STATES
judicial knowledge- of seal of, 340.
UNSOUNDNESS
See also, SOUNDNESS.
USAGES
navigation, of, skilled witnesses as to, 387.
parol evidence rule, 1115.
USE
reason, of, right of litigant to, 179.
firearms, of, opinion as to, 719.
USEFULNESS
conclusion as to, 798.
USURY
parol evidence to show, 1113.
UTILITY
conclusion as to, 798.
VALIDITY
documents, of, burden of evidence of, 407.
VALUE
value, 741.
various methods of proof, 742.
market value. 743.
absence of market value, 743.
hearsay. 744
individual, 745.
printed hearsay, 745.
qualifications. 746.
the proper market, 747.
INDEX. (References are to Sections.}
1021
Value cont'd.
proof by estimate; time of estimate, 740, 748
change in value, 749.
other occurrences to show, 1006.
relative value, 750.
administrative requirements; necessity, 751.
relevancy demanded, 752.
qualifications of witness; adequate knowl-
edge, 753.
claim of knowledge, 754.
action of appellate courts, 755.
preliminary statement of fact, 756.
ordinary observer: personal property, real es-
tate and services, 757.
owner as witness, 758.
skilled observer as witness, 759.
skilled witness testifying as an expert, 760.
materials, of, skilled witnesses as to, 388.
probative force of the judgment : how tested,
701
function of the jury, 762.
constituents for the expert's judgment; fac-
tors controlling it, 763.
cotton, of, judicial notice of, 351 n.
estate of, proof of, 1065
judicial notice of, 354.
property, judicial notice of, 358.
railroad appliances, of, expert evidence as to,
814.
relaxation in proof of, 656.
relevancy of, 656.
VARIANCE
writings, of, parol evidence rule, 1108.
VARIATIONS
order of evidence, in, 164.
VEGETABLES
judicial notice of, 358.
VENUE
burden of proof of, 400.
trial by jury, of, 209.
VERACITY
proof of, by reputation, G56.
VERDICTS
completeness of proof of record of, 269.
direction for in criminal cases, 193.
direction of, 184-200.
direction of may be discussed by judge, 287.
direction on opening trial, 195.
general, 45.
granting new trial, 133
irrational, 184.
judge sitting as a jury, 114.
nominal, 197.
special, 49
time for making, motion for directed, 194.
VERIFICATION
pleadings, of, effect of, 513
VESSELS
skilled witnesses as to matters of, 387.
VETERINARY SURGERY
skilled witnesses as to, 390.
VICIOUSNESS
animal of, proof of, 1046.
VIEW
jury, by, 1139.
VILLAGES
judicial notice of, 355.
ordinances of, see ORDINANCES.
presumption of regularity of acts of officers
of, 493.
VIOLATION
order for separation of witnesses, 92.
VIOLENCE
exclusion from court room to prevent, 83.
VITAL STATISTICS
admission of, 1082.
copies of foreign records, 1091.
judicial notice of, 354 n.
proof of, 262.
VOICE
identification from, 697.
loss of, by witness, former evidence, 629.
VOLUNTARY CONFESSIONS
See CONFESSIONS.
W
WAGER
trial by, 120.
WAIVER
right of confrontation, of, 225.
right of litigant to performance of functions
by judge, of, 204.
judicial knowledge of facts, 374.
jury trial, of, 218, 223.
jury trial, of, in criminal cases, 212.
offer of compromise to show, 577.
privilege as to self-incrimination, of, 600.
privileged communication to attorney, of,
1164.
right to open and close, of, 159.
other acts to show, 1014.
right to direct verdict, of, 198.
rights under written instrument, of, suffi-
ciency of evidence to show, 411.
WALK
identification from, 697.
WAR
judicial knowledge of declaration of, 336.
judicial notice of. 359.
opinion as to matters of, 728.
1022
.INDEX. (References are to Sections.)
WAR DEPARTMENT
judicial knowledge of regulations of, 339.
WARDS
See GUARDIANS.
/
WATER
judicial notice of action of, 353.
WAVES
skilled witnesses as to force of, 387.
WAY-BILLS
press copies of, 152 n.
WEALTH
judicial notice of distribution of, 358.
WEAPONS
carrying, as contempt of court, 100.
concealed, proof of character, 1033.
deadly, inference of malice from use of, 468.,
experiments as to use of, 1138.
opinion as to, 719.
use of, skilled witnesses as to, 388.
WEATHER
judicial notice as to, 353.
records, 1083.
WEATHER BUREAU
records of, 1083.
WEIGHT
estimate of, 740.
judicial notice of standards of, 354.
materials, of, skilled witnesses as to, 388.
of evidence, comment by judge, 121).
presumption of innocence, 483.
WEIGHT OF EVIDENCE
See PROBATIVE FORCE.
judge sitting as a jury, 1 1U.
WHISKEY
judicial notice of, 353
WILL POWER
opinion of extent of, 712.
WILLS
s<-c also, i'iu)i:.\TK COURTS.
ancient, proof of, 474
best evidence rule, 1121
completeness of proof of, 271.
copies of, 1071.
identity of. (i!)7.
parol evidence of. 151.
presumption from prima facie proof of, 469.
probate of. burden of proof, 399.
proof by copy. 261.
proof of, 10!)9
sufficiency of evidence of nuncupative, 1411.
WINDS
skilled witnesses as to force of, upon vessels,
387.
WINES
judicial notice of, 3.53.
WIRES
judicial notice of running of, 361.
opinion as to wiring, 719 n.
WITHDRAWAL
jury, of, during argument, 183.
WITHOUT PREJUDICE
offers of compromise, 580.
WITNESSES
in general
additional, called by judge, 301.
attendance of, compelled, 103.
attesting, 243.
attesting, presumption of death of, 474.
bargain, 120.
bias, of, instructions as to, 131.
business of, introduction of former evidence,
619.
change in testimony of. as surprise, 281.
character, to, 103S-1041.
claiming privilege against self-incrimination,
former evidence of, 621.
competency of, action of Appellate Courts,
309.
compulsory submission of party to examina-
tion, 1134.
conclusions of. see CONCLUSIONS.
conflicting, does not authorize inference of
fabrication, 433.
consultation by attorney with, 87.
contradiction of, proof of other acts, for,
1021.
corroboration of, proof of other acts, 1022.
credibility of, comment by judge, 129.
deaf mutes, 155.
dying declarant*, see DYIM; DECLARATIONS.
elimination of number of, 304.
exclusions from court, 79-84.
experiments by judge as to accuracy of, 1003.
expert, see KXPKRTS.
fabrication, 433.
form of oath, 9S.
impeachment of former evidence, 618.
impeachment of unsworn statement of, 852.
inability to procure, justifies secondary evi-
dence. 234.
inference from bribery of, 433.
interfering with, 109.
instructions as to experience of, 131.
intelligence of, determined by inspection,
1134.
interpreters, 154.
interrogation of by judge, 298.
judge as, 319.
INDEX. (References are to Sections.)
1023
Witnesses cont'd.
judgment of experts, see EXPERTS.
juryman as, 320.
medical, qualifications of, 723.
number of, instructions as to, 131.
number of as affecting burden of evidence,
40S.
oath to, compelled, 103.
offensive treatment of, upon cross-examina-
tion, 296.
opinion on value, see VALUE.
preponderance of, 408.
presumption from failure to call, 435.
presumption of fabrication of evidence, 433.
private memoranda for refreshing memory,
] (MIS.
privileged communications to, 1160.
probative force of opinions of, 824-836.
protection from annoyance, 295.
protection of, by court, 109.
qualification as to character, 1038.
refreshing memory with hearsay memoranda,
862.
removal or concealment of, presumption
against party, 437.
reprimands, of, by judge, 293.
restricting length of testimony of, 304.
restricting repetition of testimony of, 304.
right of cross-examination of, 171, 172.
right of litigant to confront, 224.
separation of, 85-94.
separation of, compelled, 103.
sick, adjournments to place other than court
room on account of, 84.
skilled, see also, KNOWLEDGE, SPECIAL.
skilled and unskilled, 688-733.
statement by judge as to bias of, improper,
288.
subscribing, see ATTESTING WITNESSES.
s-iib>cribing, opinion of, 710.
subscribing, to documents, 1100.
suppression of, 435-438.
swearing of, 95, 96.
swearing over telephone, 98.
tampering of, 55!).
testimony as to rules of reasoning, 53.
use of former evidence, 617-639.
See FOKMEIJ EVIDENCE.
veracity, of, proof of by reputation, 656.
waiver of right of confrontation, 225.
when intimidation of, permitted, 297.
attendance of
attendance of witnesses : power of court as to,
1140-
persons exempt or excused from attendance,
1140.
mode of procuring; subpoena, 1141.
attachment, 1141.
service of subpoena, 1141.
subpoena duces tecum, 1142.
duty of witness, 1142.
statutes, 1142.
application for, 1142.
Witnesses cont'd.
requirement as to certainty of description
of writings, 1 142.
as an unreasonable search and seizure,
1142.
habeas corpus ad testificandum, 1143.
recognizance, 1144.
compulsory process; not a taking of prop-
erty; duty to testify, 1145.
in criminal cases, 1145.
granting of matter of discretion, 1145.
payment for attendance, 1146.
experts: services performed by, 1146.
opinions of; extra compensation, 1146.
statutes, 1146.
punishment for contempt, 1147.
examination of
examination of witnesses, 1171.
direct examination; leading questions, 1172.
judge may interrogate, 298-300.
use of memoranda to refresh memory, 1098,
1173.
cross-examination, 1174.
scope of, 1175.
annoyance in cross-examination, 296.
intimidation, 297.
innuendo against, 297.
protection from annoyance, 295-297.
redirect examination, 1176.
examination subsequent to redirect, 1177.
an examination in surrebuttal, 1177.
recalling of witnesses, 1178.
privilege as to self-incrimination, 1179.
reprimanding, 293.
See HYPOTHETICAL QUESTIONS.
impeachment of
impeachment of witnesses; application of
maxim " falso in uno falsus in om-
nibus," 1180.
right to impeach, 1181.
one's own witness, 1182.
opponent's witness: character, 1183.
bias or interest, 1184.
contradictory statements, 1185.
incompetency of; mental incompetency
incompetency of witnesses; nature of an
oath, 1148.
qualifications of, 826.
mental incapacity; deaf and dumb persons,
1148.
means of conveying information to court,
1148.
immaturity of children's minds, 97, 1149.
a question for the presiding judge, 1149.
general rule, 1 149.
instruction of child, 1149.
time to which inquiry relates, 1149.
insanity, idiocy, etc., 1150.
a question for the presiding judge, 1150.
incapacity of time of occurrence of trans-
action, 1150.
effect of allegations in pleadings, 1150.
intoxication, 1151.
1024
INDEX. (References are to Sections.)
Witnesses confd.
victims of drug habits, 1152.
incompetency of; policy of the law
incompetency of witnesses ; policy of the law ;
atheism and other disbelief in God,
1153.
attorneys, 1154.
husband and wife; general rule, 1155.
statutes, 1155.
exceptions, 1155.
does death or divorce remove incompe-
tency? 1155.
tendency to remove restrictions, 1155.
injuries to husband or wife, 1155.
unlawful cohabitation, 1155.
infamous crimes; common law rule, 1156.
disqualification ensues on the judgment
upon the conviction, 1156.
growth of belief that rule too strict, 1156.
legislative provisions, 1156.
when competency restored, 1156.
conviction in foreign jurisdiction, 1156.
interest, etc., 1157.
survivors, 1157.
judge and jurors, 1158.
judge, 319.
incompetency of witnesses; race, 1159.
reasoning by
not permitted to reason, 205.
"matters of opinion; " an ambiguous phrase,
672.
irrelevancy as true ground for rejection,
673.
inference by witnesses: use of reason a mat-
ter of right, 674.
entire elimination of inference impossible,
675.
involution of reasoning, 676.
judgment, 676.
ambiguity of the term export, 676.
conclusion, 676.
credibility of intuition, 676.
canons of administration, 676.
inference, 676.
conditions of admissibility, 677.
necessity, 677.
necessity; inability of witness to state pre-
cise mental effect of observation,
678.
detailed statement of salient facts, 678.
inability of jury to coordinate the sense
impressions of the observers, 679.
common knowledge, 670.
jury's lack of knowledge, 679.
instructing the jury, 679.
Witnesses cont'd.
special knowledge, 679.
functions of the judge, 680.
relevancy ; objective and subjective, 681.
adequate knowledge, 682.
position of the witness, 682.
observation and inference, 682.
ordinary observer, 683.
special facilities for observation, 683.
skilled witness, 684.
who are skilled witnesses, 684.
conclusions and judgment of skilled
witness, 685.
judge as tribunal of fact, 686.
action of appellate courts, 687.
WOOD
account on,
WORDS
parol evidence for interpretation of, 1115.
judicial notice of meaning of, 358.
meaning of, evidence as to, 55, 807.
WOUNDS
evidence as to, 693.
opinion as to, 719.
possibility of instrument making, 738.
WRITINGS
See DOCUMENTS.
admissions by, 517, 546-555.
completeness of admissions, 531.
declarations as to public matters, 893.
documentary evidence, 433.
dying declarations in form of, 905.
hearsay, as, 878.
parol evidence rule, 1108-1120.
WRITS
admissions in returns upon, 552.
record to show, 1082.
WRITTEN LAWS
See STATUTES; CONSTITUTION; ORDINANCES.
WRONG DOING
presumption against, 495.
X-RAY
machines, judicial notice of, 354 n.
pictures, proof of, 1092.
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