X. Hearsay; declarations; res gesta. c. Party's own acts and declarations. troversy. Sullivan v. Sullivan, 7 L.R.A. | he can for defendant is admissible in an (N.S.) 156, 122 Ky. 707, 92 S. W. 966. d. A trust in an absolute legacy may be established by parol evidence, and the contemporaneous declarations of the testator, and subsequent declarations of the legatee. that the bequest was made for the benefit of a third person, upon the promise of the legatee to hold it in trust, are admissible for that purpose. Winder v. Scholey, 33 L.R.A. (N.S.) 995, 83 Ohio St. 204, 93 N. E. 1098. e. The declarations of a real party in interest, against the validity of a claim, made before he became the owner thereof, are admissible as tending to prove a defense in a suit founded upon such claim, and should not be limited merely to impeaching testimony. Barber v. Bennett, 1 L.R.A. 224, 60 Vt. 662, 15 Atl. 348. action for damages for inducing plaintiff's wife to leave him, as tending to show plaintiff's bias and discredit his testimony. Tasker v. Stanley, 10 L.R.A. 468, 153 Mass. 148, 26 N. E. 417. re b. The declarations as to his motives or purposes, of a riparian owner, are ceivable to show malice in filling the stream with débris and diverting the water from the owner below. Fulmer v. Williams, 1 L.R.A. 603, 122 Pa. 191, 15 Atl. 726. 1034. In party's favor. Declarations of deceased third person, see Complaints of injury and suffering, see post, post, § 1048. X. h. a. A statement which is made under circumstances bringing it within the rule of res gestæ is competent whether favorable or unfavorable to the person making it. Lambrecht v. Schreyer, L.R.A.1915E, 812, 129 Minn. 271, 152 N. W, 645. f. Statements of one party to the other in a conversation about a claim of the latter against him, that the former is a lawyer and can carry on a suit at one sixth the expense of the other, and that he knows every juryman in the county, and b. To be admissible at all, self serving that twelve men cannot be got together and hearsay evidence, must have been made, that will decide against him,-may be not merely before suit brought but before proved in an action brought upon such the controversy existed. Granger v. Farclaim, as they may, in the absence of ex-rant, 51 L.R.A.(N.S.) 453, 179 Mich. 19, planation, tends in some degree to evince a 146 N. W. 218. consciousness of liability upon the claim. Broschart v. Tuttle, 11 L.R.A. 33, 59 Conn. 1, 21 Atl. 925. g. Evidence of plaintiff's statements as to her health, made many years before the injury for which suit was brought, is not too remote to be used against her, where she has herself testified as to her robust health for a period nearly as remote. McConnell v. Osage, 8 L.R.A. 778, 80 Iowa, 293, 45 N. W. 550. h. Evidence, in an action for malicious prosecution, that defendant had stated before the complaint was made that he had heard that the person upon whose statements he acted in commencing the prosecu tion had been in jail, may properly be al lowed to go to the jury as tending to show how far defendant was warranted in believing the statements, and how far he did in fact believe them. McIntire v. Levering 2 L.R.A. 517, 148 Mass. 546, 20 N. E. 191. i. Upon the question whether or not one person held another in front of him as a shield from an impending explosion, evidence is not admissible that one whom wit ness took to be the former said he was not injured because protected from the explosion. Laidlaw v. Sage, 44 L.R.A. 216, 158 N. Y. 73, 52 N. E. 679. j. Evidence of declarations of husband as to his purpose in writing letters to his wife during coverture is not admissible to contradict expressions of affection contained in them. Beach .v. Brown, 43 L.R.A. 114, 20 Wash. 266, 55 Pac. 46. § 1033. - motives and purposes. See also post, § 1199 k. a. Evidence of plaintiff's statements that he is going to make as dirty a case as c. A self-serving statement is not admissible on behalf of the party making it, and the corroborating of the party in a material part of the case by his own statement is not permissible. Granger v. Farrant, 51 L.R.A. (N.S.) 453, 179 Mich. 19, 146 N. W. 218. d. Declarations, to be admissible as evidence or intention on questions of residence or domicil must have been made in the ordinary course of business, at a time when the party had no interest to make evidence and before any controversy. Ayer & Co. v. Weeks, 6 L.R.A. 716, 65 N. H. 248, 18 Atl. 1108. e. Evidence of declarations by the donée and her companion as to the fact of the gift, made on the day of the donor's death, is admissible in support of an alleged donatio causa mortis, both as part of the res gestæ and to rebut the inference flowing from testimony that in a conversation three days after the donor's death the donee made no mention of the gift. Page v. Lewis, 18 L.R.A. 170, 89 Va. 1, 15 S. E. 389. f. Evidence of declarations made by a person when sober, as to the value of his property, is admissible on the question of fraud in obtaining it from him shortly after, at an inadequate price, while he was intoxicated. Baird v. Howard, 22 L.R.A. 846, 51 Ohio St. 57, 36 N. E. 732. g. Declarations of plaintiff in an action to be declared the owner of lands and to set aside a sheriff's sale thereof on execution against her husband, as to her ownership of the property, are inadmissible in the absence of any offer to bring knowledge of such declarations home to the purchaser at such sale. Riley v. Martinelli, 21 L.R.A. 33, 97 Cal. 575, 32 Pac. 579. h. Sureties cannot testify to instructions I. Hearsay; declarations; res gestæ. to the maker as to the disposition of the notes against the holder unless he is shown to have knowledge of them. Greenville v. Ormand, 39 L.R.A. 847, 51 S. C. 58, 28 S. E. 50. § 1035, · personal injuries. See also post, § 1042 b. a. A statement of an employee who had fallen from a ladder, made in response to a question while he was lying on the floor, that the ladder bent under him, is narrative, and not spontaneous, and is therefore not admissible as res gestæ in an action to hold his employer liable for the injury. Greener v. General Electric Co. 46 L.R.A. (N.S.) 975, 209 N. Y. 135, 102 N. E. 527. b. Statements made by a boy injured by being kicked from a moving train, a few minutes after the accident, and while suffering pain, and under the excitement of the accident, as to its cause, are admissible in evidence as part of the res gestæ. Dixon v. Northern P. R. Co. 68 L.R.A. 895, 37 Wash. 310, 79 Pac. 943. c. A declaration by an injured person as to cause of accident is not excluded from evidence as part of the res gesta because in form of a narrative, and made in answer to a question. Murray v. Boston & M. R. R. 61 L.R.A. 495, 72 N. H. 325, 54 Atl. 289. d. Testimony by a plaintiff in an action to recover damages for personal injuries. that statements made to a physician who examined him to qualify as an expert witness in the case were true, will not render admissible testimony of such physician, based upon such statements. Shaughnessy v. Holt, 21 L.R.A. (N.S.) 826, 236 Ill. 485, 86 N. E. 256. e. The acts and declarations of parties to an action are not competent evidence in their behalf, unless they constitute a part of a transaction which bars or disproves the claim made against them, or are a part of a material fact in the case. Dawson v. Pogue. 6 L.R.A. 176, 18 Or. 94, 22 Pac. 637, 613. another on f. Upon the question of negligence of the owner of a garage in driving a car against the highway, repair tickets issued by the garage showing the nature of repairs made upon his car are not admissible in evidence, nor is a private letter from him relating to repairs made just prior to the accident admissible since they are mere self-serving declarations. Granger v. Farrant, 51 L.R.A. (N.S.) 453, 179 Mich. 19, 146 N. W. 218. § 1036. statement physician. c. Party's own acts and declarations. b. A statement by a party to his phy sician that he has lost his sexual powers is not admissible as original evidence in his own favor, being mere hearsay. Williams v. Great Northern R. Co. 37 L.R.A. 199, 68 Minn. 55, 70 N. W. 860. c. Testimony as to statements made by the injured person to his attending physician, of how the accident happened, is not admissible in a suit to recover for alleged negligent injuries. Jones v. Portland, 16 L.R.A. 437, 88 Mich. 598, 50 N. W. 731. d. Statements of one injured by another's negligence, during examination by physicians who are attempting to qualify as expert witnesses in an action to recover for the injuries, are not admissible in such action as part of the res gesta. Shaughnessy v. Holt, 21 L.R.A. (N.S.) 826, 236 Ill. 485, 86 N. E. 256. (Annotated) 2. In criminal cases. 8 1037. Generally. See also post, § 1334 v. a. Hypnotism of a person accused of crime will not render evidence of statements made by him while under the influence admissible in his favor at his trial. People v. Ebanks, 40 L.R.A. 269, 117 Cal. 652, 49 dered inadmissible at his trial by the fact State, 42 L.R.A. (N.S.) 747, 64 Tex. Crim. c. Statements made by a witness to one charged with crime, which he replies to, Watt v. People, 1 L.R.A. 403, 126 Ill. 9, are admissible in evidence with the reply. 18 N. E. 340. d. Proof, on a trial for burglary, that on arresting defendant the witness told him that he would let him go if upon his making tracks on the carpet the tracks did not correspond with those made at the place of the burglary, and that defendant declined such offer, is inadmissible under the constitutional provision that one accused of crime shall not be compelled to give evidence against himself. Cooper v. State, 4 L.R.A. (Annotated) 766, 86 Ala. 610, 6 So. 110. e. In a prosecution for receiving money stolen from the mail, evidence is not adto examining missible that, after arrest, accused informed his attorney that he did not know that the money was stolen. Thompson v. United States, 47 L.R.A. (N.S.) 206, 202 Fed. 401, 120 C. C. A. 575. See also ante. § 878 f, 1035 d. a. Declarations made by one injured, to his attending physician, are admissible in evidence when they relate to the part of the body injured and his symptons and sufferings, but his statements are not competent if they relate to the cause of the injury. Peoria Cordage Co. v. Industrial f. Evidence of statements by accused showing enmity on the part of accused against one whose barn has been burned is not admissible in a prosecution for arson, in the absence of evidence of the corpus de EVIDENCE. X. Hearsay; declarations; res gestæ. c. Party's own acts and declarations. 4223 licti. State v. Brown, L.R.A.1916D, 1295, | d. Acts and declarations of third per. 103 S. C. 437, 88 S. E. 21. g. Upon the question whether one found dead had committed suicide or had been murdered, evidence is admissible of a decla-¦ ration by accused of an intention to dispose of another person in the identical manner in which decedent appears to have met his death, and which is peculiar and unusual. Com. v. Snell, 3 L.R.A. (N.S.) 1019, 189 Mass. 12, 75 N. E. 75. h. A statement by one accused of murder that he was a straight shot, a game man, which his hearer would find out be fore they got back, is admissible in evidence upon his trial for a homicide occurring during the expedition, although several hours later, as tending to show general malice and a disposition to do a criminal act. State v. Feeley, 3 L.R.A. (N.S.) 351, 194 Mo. 300, 92 S. W. 663. i. A statement at the time of his arrest by one on trial for obtaining money by the § 1038. -nearness in point of time. ments of accused made shortly after the assault that he had considerable feeling against his victim. State v. McGuire, 38 L.R.A. (N.S.) 1045, 84 Conn. 470, 50 Atl. 761. sons, generally. 1. Civil cases. § 1039. Generally. admissibility of letters of third person, see ante, § 660. Admissions of third persons, see ante, IX. Evidence in rebuttal, sec post, § 1353 c. Admissibility to contradict witness, see third per a. Acts and declarations of a son are not evidence against a party unwas his agent. less such third person Jackson v. American Teleph. & Teleg. Co. 70 L.R.A. 738, 139 N. C. 347, 51 S. E. 1015. b. Statements of bystanders are not admissible as res gesta. Missouri P. R. Co. v. Ivey, 1 L.R.A. 500, 71 Tex. 409, 9 S. W. 346. c. Declarations of a party to a contract, as to its terms, are not admissible as part of the res gestæ, when made after the contract is completed, and not in the presence of the parties, although made very soon after the parties separate. State v. Murphy, 17 L.R.A. (N.S.) 609, 17 N. D. 48, 115 N. W. 84. d. Statements of the promisee, made when giving a written contract to a third person for whose benefit the promise was made, to the effect that the maker would pay it, are not admissible as part of the res gestæ attending the delivery of the document. Baxter v. Camp, 42 L.R.A. 514, 71 Conn. 245. 41 Atl. 803. b. In a trial for homicide it is competent to put in evidence the actions, con e. Evidence is not admissible in an acduct, and general demeanor of defendant before the killing, for the purpose of proving tion to set aside a deed, of a declaration that he was armed and in a vicious humor, by one person as to what another meant provided only that such conduct is so near by remarks made to the speaker concerning Holt v. Guerthe time of the homicide as to tend to show the preparation of papers. Tex., 163 the state of mind of the defendant at the quin, 50 L.R.A. (N.S.) 1136, time of the killing. Hampton v. State, 403. W. 10. L.R.A. (N.S.) 43, 7 Okla. Crim. Rep. 291, 123 Pac. 571. f. The statements of the employer when discharging an employee because of notice c. Upon trial of one for killing a police of an assignment of his wages are admisman, evidence of a casual remark of ac-sible in evidence in an action to hold one cused several months before, to the effect liable in damages, who caused the discharge by wrongfully claiming the assignment. that "if they arrested me like that fellow was arrested I would shoot them," is not Lopes v. Connolly, 38 L.R.A. (N.S.) 986, 210 admissible in evidence if there is nothing Mass. 487, 97 N. E. 80. to show the circumstances of the arrest al luded to. State v. Meyers, 33 L.R.A. (N.S.) 143, 57 Or. 50, 110 Pac. 407. d. On a trial for murder, proof as to the demeanor or bearing of defendant before the commission of the act and on the same day, and proof of his natural temperament or disposition before and at the time of the act, are irrelevant and inadmissible. Garlitz v. State, 4 L.R.A. 601, 71 Md. 293, 18 Atl. 39. g. In an action against a member of an employers' association for blacklisting an employee, the latter should not be permitted to testify as to the reasons given by members of the association for refusal to Willner v. Silverman, 24 employ him. L.R.A. (N.S.) 895, 109 Md. 341, 71 Atl. 962. h. Declarations of workmen to the superintendent on quitting employment, that a certain physician had told them the silk on which they were working contained H. 248, 18 Atl.. 1108. X. Hearsay; declarations; res gesta. d. Acts and declarations of third persons generally. arsenic enough to make their work danger-, Ayer & Co. v. Weeks, 6 L.R.A. 716, 65 N. ous, are not admissible in evidence again the physician in an action against him by the employer for slander. Elmer v. Fessenden, 5 L.R.A. 724, 151 Mass. 359, 22 N. E. 635. i. Statements of advertisers in a news paper at the time of withdrawing their patronage, that it was because they had been visited by a committee of a typographical union and were threatened with loss of business, are admissible as part of the res gestæ in an action to enjoin a boycott. Casey v. Cincinnati Typographical Union, 12 L.R.A. 193, 45 Fed. 135. j. Declarations of voters, made before or after election, and not as part of the res gestæ, are not admissible in an election contest to show their disqualification. Rucks v. Renfrow, 12 L.R.A. 362, 54 Ark. 409, 16 S. W. 6. k. In case of a conflict of testimony as to the dragging of the plaintiff in an action for false imprisonment, by defendants who arrested her, her testimony as to what a bystander said about there being mer enough to carry her is inadmissible. Marks v. Sullivan, 20 L.R.A. 590, 9 Utah, 12, 33 Pac. 224. 1. A person who was present when others started out upon a drive, during which they came into collision with a railroad train upon a railroad crossing, and were injured, may be permitted to testify as to where they were going, such testimony being part of the res gesta. Cincinnati, I. St. L. & C. R. Co. v. Howard, 8 L.R.A. 593, 124 Ind. 280, 24 N. E. 892. m. A messenger may testify that, when seeking to deliver a message to a physician, he was told at the drug store where the physician kept his office, that he was gone to the country. Western U. Teleg. Co. v. Cooper, 1 L.R.A. 728, 71 Tex. 507, 9 S. W. 598. n. Evidence of a detective, chief of police, and other persons as to what was told them and was learned by them about a person who disappeared is inadmissible to prove his death. Re Hurlburt, 35 L.R.A. 794, 68 Vt. 366, 35 Atl. 77. | r. Declarations of a witness who attested a will, unfavorable to the capacity of te tator, are not admissible in evidence on the question of the validity of the will. Speer v. Speer, 27 L.R.A. (Ñ.S.) 294, 146 Iowa, 6, 123 N. W. 176. (Annotated) s. Evidence of declarations by heirs to their mother, that real estate left by their father is hers, is not admissible as proof of title in her. Munsey v. Hanly, 13 L.R.A. (N.S.) 209, 102 Me. 423, 67 Atl. 217. t. Declarations are not admissible to invalidate a will, where the interests of the declarant and the beneficiaries under the will are not joint, and there is no relation of privity between them. Re Fowler, 38 L.R.A. (N.S.) 745, 156 N. C. 340, 72 S. E. 357. u. Testimony as to the opinion of an attorney concerning the title to personal property in dispute is not admissible in an action to recover possession of it. Log Owners' Booming Co. v. Hubbell, 4 L.R.A. (N.S.) 573, 135 Mich. 65, 97 N. W. 157. v. Testimony of a witness in a habeas corpus proceeding between parents, involv ing the custody of a child, that people in the neighborhood of one of the parties had denounced his character as bad, but refused to give an affidavit to that effect because of fear of injury to person or property, is hearsay and inadmissible. Milner v. Gatlin, L.R.A.1916B, 977, 143 Ga. 816, 85 S. E. 1045. w. A request in writing, signed by all the jurors, for a retraction of a libelous newspaper article in relation to their verdict, cannot be read in an action by one of them for libel, until it is shown that the request reached the defendant. Welch v. Tribune Pub. Co. 11 L.R.A. 233, 83 Mich. 661, 47 N. W. 562. x. The statement of one having a bottle of wood alcohol purchased the previous day, made to induce another to drink with him, that "it is good. I got it of Chase Brown," is inadmissible as res gestæ evidence in an action for the death of the purchaser, based upon the alleged negligence of Brown in selling wood alcohol for grain alcohol without a proper label, as such statement was not concomitant with the act of obtaining the alcohol, nor a part of it, but was simply narrative of a completed transCampbell v. Brown, 26 L.R.A. o. Testimony that the members of a club considered a certain paper one of the strongest they had had read before them is incompetent as hearsay. Porter v. Ritch, 39 L.R.A. 353, 70 Conn. 235, 39 Atl. 169. p. On the issue whether or not a physi-action. cian making an autopsy cut open the (N.S.) 1142, 81 Kan. 480, 106 Pac. 37. stomach, he may state that he had been § 1040. Spontaneity and nearness or told that the deceased had been drinking on the day of his death, as bearing on the scope of his investigations. Manufacturers' Of Acci. Indemnity Co. v. Dorgan, 22 L.R.A. 620, 58 Fed. 945, 7 C. C. A. 581. q. Unsworn admissions or declarations made by an insolvent, after a controversy has arisen between his attaching creditors and petitioners in insolvency proceedings upon his estate, are not admissible in a suit between such parties, for the purpose of determining the question of his residence. remoteness in point of time generally. declarations of person negligently killed, see post, § 1055 f-h. In criminal prosecution, see post, § 1059. See also post, § 1042 c. a. Sudden exclamations and outbursts of bystanders, as well as of participants, are parts of the res gestæ, and as such are admissible in evidence, whenever the occur rence producing them is under judicial investigation. O'Rouke v. Citizens' Street X. Hearsay; declarations; res gestæ. d. Acts and declarations of third persons generally. R. Co. 46 L.R.A. 614, 103 Tenn. 124, 52 S. the nature of the case, some acceptable subW. 872. stitute for the usual test of an oath and b. The exclamations of third parties cross-examination. Johnston v. Spoonheim, present at a startling occurrence are as 41 L.R.A. (N.S.) 1, 19 N. D. 191, 123 N. much a part of the res gestæ as those of W. 830. the parties themselves. Britton v. Washington Water Power Co. 33 L.R.A. (N.S.) 109, 59 Wash. 440, 110 Pac. 20. e. A declaration to be res gestæ must be a spontaneous product of the occurrence in question, instictive rather than deliberative. Illinois C. R. Co. v. Lowery, 49 L.R.A. (N.S.) 1149, 184 Ala. 443, 63 So. 952. d. To make statements concerning an accident admissible as res gesta they must be spontaneous, made at or near the time and place of the accident, and so closely connected with the occurrence as to be evoked and prompted by it. Bernard v. Grand Rapids Paper Box Co. 42 L.R.A. (N.S.) 930, 170 Mich. 238, 136 N. W. 374. e. The common-law rule requiring the exclusion of hearsay statements is subject to an exception in the case of declarations by the participant in or an observer of the litigated act that are so nearly connected with it in point of time that they may be regarded as a spontaneous, necessary incident, explaining and characterizing it and they may be proved as a part of it without calling the person who made them. Callahan v. Chicago, B. & Q. R. Co. 47 L.R.A. (N.S.) 587, 47 Mont. 401, 133 Pac. 687. f. The surrounding circumstances and conditions being shown, the admissibility, as a part of the res gestæ, of declarations not exactly concurrent with the principal act, rests largely in the sound discretion of the trial judge. Walters v. Spokane International R. Co. 42 L.R.A. (N.S.) 917, 58 Wash. 293, 108 Pac. 593. b. Evidence of a conversation which oc curred in defendant's absence is not rendered admissible against him by the fact that it would tend to contradict statements made by defendant's counsel in his opening statement to the jury. Munzer v. Stern, 29 L.R.A. 859, 105 Mich. 523, 63 N. W. 513. c. Evidence of statements alleged to have been made by a man and his relatives after the time of his alleged marriage, to the effect that it did not take place, which were not made in the presence of one claiming to be his widow, is not admissible in opposition to her claim. Nims v. Thompson, 17 L.R.A. 847, 83 Wis. 261, 53 N. W. 502. d. The absence of the sureties on a note at the time of its attempted negotiation will not preclude testimony as to what then took place being given by one who, after the refusal of the payee to discount it, advanced money on the note which was com mitted by the sureties to the maker's hands for negotiation. Greenville v. Ormand, 39 L.R.A. 847, 51 S. C. 58, 28 S. E. 50. e. The testimony of statements tending to show the guilt of accused, made by witnesses to the justice who issued the warrant in a criminal case, in the absence of the one making the complaint, is not admissible in favor of the latter in a subsequent suit brought against him for malicious prosecution by the person arrested. McIntire v. Levering, 2 L.R.A. 517, 148 Mass. 546, 20 N. E. 191. ejection. g. To be admitted as part of the res§ 1042. As to accident, injury, or gesta a declaration must be so close in point of time to the event or transaction of which it speaks, and of so spontaneous and irreflective a character that it may be regarded as a part of it. Campbell v. Brown, 26 L.R.A. (N.S.) 1142, 81 Kan. 480, 106 Pac. 37. h. While contemporaneous declarations explanatory of the principal occurrence, made under circumstances, excluding the idea of premeditation are competent as part of the res gestæ, it is not always essential to their admissibility that the declarations and the principal occurrence shall be identical in point of time. Walters v. Spokane International R. Co. 42 L.R.A. (N.S.) 917, 58 Wash., 293, 108 Pac. 593. 1041. Effect of absence of party against whom offered. In action for alienating affection, see post, § 1045 e. In criminal prosecution, see post, § 1058. Declarations of copartner, see post, § 1101. Declarations of coconspirators, see post, § 1103. Admissibility of admissions, see ante, IX. a. Evidence as to chastity in criminal prosecution, see post, §§ 1157, 1158. person negligently killed, see post, § prosecution for negligent homicide, see 1055. Of In post, § 1063 d, e. Acts and declarations of agent or repre- see a. A statement may be admissible within the rule of res gestæ though made by one not injured or even by a by-stander. Lambrecht v. Schreyer, L.R.A.1915E, 812, 129 Minn. 271, 152 N. W. 645. up b. It is not generally proper to bolster the testimony of a witness by parol evidence given by himself or anyone else that he made similar statements on a previous occasion but a statement or exclamation of a person who is a victim of a wreck or a. Statements of parties in interest,ollision or other exciting occasion made made in the absence of the litigant, are immediately after the occurrence and deincompetent as evidence, unless there ex-claring the circumstances of it as observed ists, in the surrounding circumstances or by him may be used testimonially as an L.R.A. Comb. Dig.-265. |