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CHAPTER IV.

HEARSAY EVIDENCE.

SECTION 19. WHAT CONSTITUTES HEARSAY.

Hearsay is not confined to words spoken, but the rule applies to writings as well. It may include any statement, verbal or written, the probative value of which depends partly or wholly upon something other than the credit to be given to the witness who utters the statement or the writing which contains it, and necessitates a belief in the veracity and competency of some other person.

A universal principle pervading the law of evidence, subject to certain exceptions hereinafter mentioned, is that what one man says or writes, while not under oath, behind the back of another, cannot be received in a court to affect the rights of any person but himself.

Every party litigant should have the right to have the declarant with personal knowledge of the fact brought before the court, to be submitted to his crossexamination under oath, that he may be questioned concerning all the particulars of the fact about which he testifies. The unsworn statement that a fact exists affords no proof of its existence. And the best evidence rule demands the rejection of all hearsay evidience not within the following well-defined exceptions.

SECTION 20. EXCEPTIONS.

Upon principles of necessity and of public policy: (1) Declarations against Interest; (2) Declarations as

to Pedigree; (3) Matters of General and Public Interest; (4) Res Gestæ; (5) Ancient Possessions and Documents; (6) Dying Declarations; (7) Admissions; (8) Confessions; (9) Evidence as to Character and Reputation; (10) Market Value; (11) Testimony of witnesses subsequently dead, absent from the State, or disqualified, are admissible in evidence.

SECTION 21. DECLARATIONS AGAINST INTEREST.

As applied in the law of evidence, "declarations against interest" simply mean statements or book entries made by a person, since deceased, who was not a party to the pending cause, and which was against the interest of the party making it at the time it was made.1

Declarations against interest, as a general rule, must be made by a deceased stranger, who must have had peculiar means of knowing the facts concerning which he testifies.

The declarations, to be admissible, must not be self-serving, but must operate against the interest of the declarant at the time written or spoken.

The reasons for the admissibility of declarations against proprietary or pecuniary interest, rest upon the utter improbability of their falsity, the absence of any motive for misrepresentation affording a strong assurance of their truth.

SECTION 22. ENTRIES IN COURSE OF OFFICIAL DUTY.

Entries made in the course of official duty and as enjoined by law are primary evidence, and are admissible, regardless of whether the person making the entries be living or dead. And this rule has some1 Hopt vs. Utah, 110 U. S., 574.

times been applied to entries made in the line of professional duty or employment.

SECTION 23. BOOKS OF ACCOUNT.

Books of account, regularly and correctly kept in the ordinary course of business, in the United States, in the absence of controlling statute, upon preliminary proof of their accuracy, are admissible in evidence upon a party's own behalf, regardless of whether they have been kept by himself or some other person; and their admissibility is not affected by the fact that the account may be barred by the statute of limitations.

SECTION 24. BOOKKEEPER AS WITNESS.

When the bookkeeper who made the entries is living and testifies that he made the entries in the usual course of business at the time of the transactions, although he remembers and can testify nothing about the facts recorded in the entry, such entries are of themselves primary evidence of the facts recorded.

Where the bookkeeper, at the time of trial, is not within the jurisdiction of the court, or deceased, or not accessible, upon proof of his handwriting and inaccessibility, the books should be received in evidence. If insane, the above should be supplemented by his conservator's oath.2

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SECTION 25. DECLARATIONS AS TO PEDIGREE.

As applied to human beings, pedigree is a genealogical table which records the relationship of families by degrees; an account or register of a line of ancestors. It embraces matters of descent, relationship, birth, marriage and death, as well as facts necessarily resulting therefrom.

• Union Bank vs. Knapp, 3 Pick, 96.

Declarations concerning pedigree are admissible only (1) when made prior to the commencement of the suit; (2) by a deceased person; (3) who was related by blood or marriage to the person or family to which such declarations refer. The declarations themselves are not admissible to prove the relationship of declarant to the person or family referred to; that must be proved aliunde. Where the purpose of the suit is to reach the estate of the declarant, and not to establish right through him, such declarations concerning kinship are admissible without other proof of relationship.

In order to render declarations as to pedigree admissible, it must be shown that they were made before the controversy arose and concerning legitimate relationship. Illegitimate pedigree cannot be proved by declarations of deceased persons.

SECTION 26. MATTERS OF PUBLIC AND

GENERAL INTEREST.

A third exception to the rule excluding hearsay is, when the declarations relate to matters of public and general interest, the term "public" being used to denote that which concerns each and every subject and citizen of a state or nation, and the term "general" a considerable portion of the people of such state or nation, or a certain community.

Such declarations have been received to establish or disprove boundaries, public highways, rights of common, ancient rights, incorporations of towns and grants of land by Indian tribes. Hearsay evidence is admitted in such cases, because the public having an interest in the question, the right is supposed to have been a subject of frequent discussion with individuals,

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having the same inducements, and equal means to correct information relating to it, and on the principle that individuals are supposed to be conversant with their own affairs.3

Public boundaries between different political divisions of a state or country, or the boundaries of the state or country itself, are most frequently drawn in question, or rights of way by prescription or otherwise. Public boundaries or public highways are always matters of at least general, if not public interest, and hearsay evidence of general repute is always held admissible.

SECTION 27.

DECLARATIONS OF RES GESTÆ.

Spontaneous declarations, made simultaneously with a transaction or occurrence, and expressive of its character, motive, object, or cause, are regarded as res gestae and admissible in evidence along with the main facts of the transaction or occurrence, and as a part thereof, and explanatory of its nature.

In criminal cases, statements made at the time of the commission of the offense by the accused are generally admissible to prove the intent, when not self-serving. This is especially true in the law of conspiracy. The unlawful combination and the common design having been established by evidence sufficient in the mind of the court, each and every act or declaration of each of the conspirators in furtherance of the common design becomes admissible against each and all of the conspirators, the act of each being the act of all.

When such declarations consist of questions and answers, statements and exclamations, occurring

1 Greenleaf, Secs. 128-130.

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