rector or vicar, or of an ecclesiastical corporation aggregate, containing entries of the receipt of ecclesiastical dues, when adınitted in favor of their successors, or of parties claiming the same interest as the maker of the entries. Sir Thomas Plumer, in a case before him, said: "It is admitted, that the entries of a rector or vicar are evidence for or against his successors. It is too late to argue upon that rule, or upon what gave rise to it; whether it was the cursus Scaccarii, the protection of the clergy, or the peculiar nature of property in tithes. It is now the settled law of the land. It is not to be presumed that a person, having a temporary interest only, will insert a falsehood in his book from which he can derive no advantage. Lord Kenyon has said, that the rule is an exception; and it is so; for no other proprietor can make evidence for those who claim under him, or for those who claim in the same right and stand in the same predicament. But it has been the settled law, as to tithes, as far back as our research can reach. We must, therefore, set out from this as a datum; and we must not make comparisons between this and other corporations. No corporation sole, except a rector or vicar, can make evidence for his successor." But the strong presumption that a person, having a temporary interest only, will not insert in his books a falsehood, from which he can derive no advantage, which evidently and justly had so much weight in the mind of that learned judge, would seem to bring these books within the principle on which entries, made either in the course of duty, or against interest, are admitted. And it has been accordingly remarked, by a writer of the first authority in this branch of the law, that after it has been determined that evidence may be admitted of receipts of payment, entered in private books, by persons who are neither obliged to keep such books, nor to account to others for the money received, it does not seem any infringement of principle to admit these books of rectors and vicars. For the entries cannot be used by those who made them; and there is no legal privity between them and their successors. The strong leaning, on their part, in favor of the church, is nothing more, in legal consideration, than the leaning of every declarant in favor of his own interest, affecting the weight of the evidence, but not its admissibility. General observations have occasionally been made respecting these books, 1 Short v. Lee, 2 Jac. & W. 177, 178 which may seem to authorize the admission of any kind of statement contained in them. But such books are not admissible, except where the entries contain receipts of money or ecclesiastical dues, or are otherwise apparently prejudicial to the interests of the makers, in the manner in which entries are so considered in analogous cases.1 And proof will be required, as in other cases, that the writer had authority to receive the money stated, and is actually dead; and that the document came out of the proper custody.2 1 Phil. & Am. on Evid. 822, 823, and cases in notes (2) and (3); 1 Phil. Evid. 808, notes. (1), (2); Ward v. Pomfret, 5 Sim. 475. 2 Gresley on Evid. 223, 224; Carrington v. Jones, 2 Sim. & Stu. 135, 140; Perigal v. Nicholson, 1 Wightw. 63. CHAPTER IX. OF DYING DECLARATIONS. [§ 156. Declarations made in immediate prospect of death admissible, on trials for homicide. 157. The person must have been competent to testify; but being an accomplice will not exclude the declarations. 158. The declarations must be made under the apprehension of almost immediate death. 159. Can only be received to the extent the person might have testified, and must be complete. 160. Competency of the evidence determined by court; its weight by jury. 161. If reduced to writing, it must be produced if possible. 161a. But if resting in memory, witness may testify to substance of declaration. 1616. The declaration may be by signs as well as words.] - § 156. A fourth exception to the rule, rejecting hearsay evidence, is allowed in the case of dying declarations. The general principle, on which this species of evidence is admitted, was stated by Lord Chief Baron Eyre to be this, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced, by the most powerful considerations, to speak the truth. A situation so solemn and so awful is considered by the law, as creating an obligation equal to that which is imposed by a positive oath in a court of justice.1 It was at one time held, by respectable authorities, that this general principle warranted the admission of dying declarations in all cases, civil and criminal; but it is now well settled that they are admissible, as such, only in cases of homicide, "where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declara 1 Rex v. Woodcock, 2 Leach's Cr. Cas. 256, 567; Drummond's case, 1 Leach's Cr. Cas. 378. The rule of the Roman Civil Law was the same. Morti proximum, sive moribundum, non præsumendum est mentiri, nec esse immemorem salutis æternæ; licet non præsumatur sem VOL. I. per dicere verum. Mascard. De Probat. Concl. 1080. In the earliest reported case on this subject, the evidence was admitted without objection, and apparently on this general ground. Rex v. Reason et al., 6 State Tr. 195, 201. The rule of the Common Law, under which this evidence is 16 tions." The reasons for thus restricting it may be, that the credit is not in all cases due to the declarations of a dying person; for his body may have survived the powers of his mind; or his recollection, if his senses are not impaired, may not be perfect; or, for the sake of ease, and to be rid of the importunity and annoyance of those around him, he may say, or seem to say, whatever they may choose to suggest.2 These, or the like considerations, have been regarded as counterbalancing the force of the general principle above stated; leaving this exception to stand only upon the ground of the public necessity of preserving the lives of the community, by bringing manslayers to justice. For it often happens, that there is no third person present to be an eyewitness to the fact; and the usual witness in other cases of felony, namely, the party injured, is himself destroyed. But in thus restricting the evidence of dying declarations to cases of admitted, is held not to be repealed by, nor inconsistent with, those express provisions of constitutional law, which secure to the person accused of a crime, the right to be confronted with the witnesses against him. Anthony v. The State, 1 Meigs, 265; Woodsides v. The State, 2 How. Mis. R. 655; [Campbell v. State, 11 Geo. 853.] 1 Rex v. Mead, 2 B. & C. 605. In this case the prisoner had been convicted of perjury, and moved for a new trial, because convicted against the weight of evidence; after which he shot the prosecutor. Upon showing cause against the rule, the counsel for the prosecution offered the dy ing declarations of the prosecutor, relative to the fact of perjury; but the evidence was adjudged inadmissible. The same point was ruled by Bayley, J., in Rex v. Hutchinson, who was indicted for administering poison to a woman pregnant, but not quick with child, in order to procure abortion. 2 B. & C. 608, note. This doctrine was well considered, and approved in Wilson v. Boerem, 15 Johns. 286. In Rex v. Lloyd et al., 4 C. & P. 233, such declarations were rejected on a trial for robbery. Upon an indictment for the murder of A, by poison, which was also taken by B, who died in consequence, it was held, that the dying declarations of B were admissible, though the prisoner was not indicted for murdering her. Rex v. Baker, 2 M. & Rob, 53; [State v. Cameron, 2 Chand. 172.] [* Dailey v. N. Y. & N. H. Railw. 32 Conn. In some of the states, dying declarations have been received in civil causes. Malaun v. Ammon, 1 Grant's Cases (Penn.), 123. But it has arisen from a misapprehension of the true grounds upon which the declarations are receivable as testimony. It is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission, for if that were all that is requisite to render the declarations evidence, the apprehension of death should have the same effect, since it would place the declarant under the same restraint as if the apprehension were founded in fact. But both must concur, both the fact and the apprehension of being in extremis. And, although it is not indispensable that there should be no other evidence of the same facts, the rule is, no doubt, based upon the presumption, that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption and the consequent probability of the crime going unpunished, is unquestionably the chief ground of this exception in the Law of Evidence. And the great reason why it could not be received generally, as evi dence in all cases where the facts involved should thereafter come in question, seems to be that it wants one of the most impor tant and indispensable elements of testimony, that of an opportunity for crossexamination by the party against whom it is offered.] 2 Jackson v. Kniffen, 2 Johns. 31, 35, per Livingston, J. 81 East, P. C. 353. trial for homicide of the declarant, it should be observed, that this applies only to declarations offered on the sole ground, that they were made in extremis; for where they constitute part of the res gestæ, or come within the exception of declarations against interest, or the like, they are admissible as in other cases; irrespective of the fact that the declarant was under apprehension of death.1 § 157. The persons, whose declarations are thus admitted, are considered as standing in the same situation as if they were sworn; the danger of impending death being equivalent to the sanction of an oath. It follows, therefore, that where the declarant, if living, would have been incompetent to testify, by reason of infamy, or the like, his dying declarations are inadmissible.2 And, as an oath derives the value of its sanction from the religious sense of the party's accountability to his Maker, and the deep impression that he is soon to render to Him the final account; wherever it appears that the declarant was incapable of this religious sense of accountability, whether from infidelity, imbecility of mind, or tender age, the declarations are alike inadmissible. On the other hand, as the testimony of an accomplice is admissible, against his fellows, the dying declarations of a particeps criminis in an act, which resulted in his own death, are admissible against one indicted for the same murder.4 § 158. It is essential to the admissibility of these declarations, and is a preliminary fact, to be proved by the party offering them 1 Supra, §§ 102, 108, 109, 110, 147, 148, 149. To some of these classes may be referred the cases of Wright v. Littler, 3 Burr. 1244; Aveson v. Ld. Kinnaird, 6 East, 188; and some others. It was once thought that the dying declarations of the subscribing witness to a forged instrument were admissible to impeach it; but such evidence is now rejected, for the reasons already stated. Supra, § 126. See Stobart v. Dryden, 1 Mees. & W. 615, 627. In Regina v. Megson et al., 9 C. & P. 418, 420, the prisoners were tried on indictments, one for the murder of Ann Stewart, and the other for a rape upon her. In the former case, her declarations were rejected, because not made in extremis; and in the latter so much of them as showed that a dreadful outrage had been perpetrated upon her was received as part of the outrage itself, being, in contemplation of law, contemporaneous; but so much as related to the identity of the per petrators was rejected. See also Regina v. Hewett, 1 Car. & Marshm. 534. [See State v. Shelton, 2 Jones Law (N. C.) 360; State v. Peace, 1 Ib. 251; Oliver v. State, 17 Ala. 587.] 2 Rex v. Drummond, 1 Leach's Cr. Cas. 378. 8 Rex v. Pike, 3 C. & P. 598; Regina v. Perkins, 9 C. & P. 395; 2 Mood. Cr. C. 135; 2 Russell on Crimes, 688. 4 Tinckler's case, 1 East, P. C. 354. [Where the declarations have been put in evidence, and an attempt has been made by the other side to destroy the effect of such declarations by showing the bad character of the deceased, the prosecution, for the purpose of corroborating the evidence, may prove that the deceased made other declarations to the same purport, a few moments after he was struck, although it did not appear that he was then under the apprehension of immediate death. State v. Thomason, 1 Jones, Law (N. C.) 274.] |