shortly after the transaction or occurrence, the problem becomes hopelessly involved. And where such declarations become narrative of a past transaction, or sufficient time has elapsed in which to plan and utter false and misleading statements, they are not allowed by courts to be introduced in evidence. They must occur contemporaneously with the main facts of the transaction or event. Involuntary exclamations of pain so closely associated with the accident as to be a part of the res have been received in evidence.

SECTION 28. ANCIENT POSSESSIONS AND DOCUMENTS.

The term "ancient document" includes any deed or other instrument thirty years old or more. Such document, when it comes from proper custody, proves itself, and is admissible in evidence without the usual formal proof of execution and delivery by attesting witnesses, after its age has been proved by the direct evidence of living witnesses who have seen the paper more than thirty years ago. A showing that it comes from proper custody and is probably genuine is indispensable. A paper is in proper custody if in the possession of one claiming under it, or his heirs, or representatives, especially if found among undisputed muniments of title to the land to which it relates.

If the document found be a muniment of title, coupled with continuous undisputed possession thereunder for at least thirty years, it affords good evidence of title. Some rights, however, must have been asserted under such document, some acts of ownership or otherwise exercised consistent with the rights granted by the document.

If the above conditions for admission without proof of execution are met, such proof of formal execu

tion need not be made, even though one of the subscribing witnesses be easily accessible. A deed over thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof, the subscribing witnesses being presumed dead.

The thirty-year period is computed from the time the deed is offered in evidence, and not from the time of the commencement of the suit.

SECTION 29. DYING DECLARATIONS.

Dying declarations are statements of relevant and material facts, made by a sane mind under the realization and solemn sense of impending death, by one who was about to die, and who has abandoned all hope of living, and who subsequently died, relating to the cause and circumstances surrounding his death, and the particulars and manner of the killing of declarant.

Such declarations are admissible only in cases of homicide, where the death of the deceased is the subject of the charge, and where the circumstances attending the death are the subject of the dying declarations.

The objections to dying declarations are: (1) They are not under oath; (2) the accused has not the opportunity of confronting the declarant; (3) and there is no opportunity for cross-examination. These conditions, however, were brought about by the wrongful act of accused, and he cannot complain. The awful solemnity of impending death silences every motive to falsehood and supplies a sanctity equivalent to an oath.

The reason for the admission of dying declarations is one of necessity. The assassin's act is a deed of

darkness and of cunning, and the fatal blow is generally struck when no one but the assassin and his victim are present. And to exclude such dying declarations on the ground of hearsay would mean the evasion of justice by the shrewdest and most subtle murderers.

If the statement of the deceased was reduced to writing and signed by him before death, it is necessary that the writing be produced, if existing; and no copy or parol evidence thereof can be received. Where the declarations have been repeated at different times, some of which were reduced to writing, and others not, the declarations not reduced to writing may be proved by parol, if the written declaration cannot be produced. Sometimes, where the deposition of the victim has been taken, and, for want of compliance with legal formalities, is inadmissible, it has still been received in evidence as a dying declaration.

SECTION 30. ADMISSIONS.

The terms "admissions" and "confessions" are sometimes mistakenly used interchangeably. Strictly speaking, admissions usually apply to civil transactions and other matters of fact in criminal cases not involving criminal intent. The term confession is usually confined to acknowledgment of guilt in criminal cases. An admission, competent as evidence in a judicial action or proceeding, is a voluntary acknowledgment in express terms, or by implication, or by some act, by a party in interest, or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue." Admissions are of two kinds, private and judicial. The former relate to statements or acts made or done 1 Enc. of Ev., 357.

at some previous time which is inconsistent with the facts sought to be proved at the trial. The latter relate to admissions made in pleadings or stipulations filed during the progress of the case, or statements made in open court. This may result from a failure to deny material allegations of the opposing party's pleadings. Judicial admissions are binding and conclusive upon the parties, while other admissions, where the doctrine of estoppel does not apply, may be rebutted. Admissions may be implied from conduct consistent with a state of facts against his interests and inconsistent with the rights asserted by him in the pending cause.

Admissions of guilt in criminal cases are to be received with great caution. The reason for this is the difficulties of the English language and the danger of mistakes in the use of words, inability of the accused to correctly express his own meaning, the frailties of memory, and the disturbed state of mind of the prisoner induced by his perilous situation.

To be admissible, confessions must be entirely voluntary, not induced by the flattery of hope or the torture of fear, nor elicited by promises of light punishment or non-prosecution. Confessions induced by hope held out to the prisoner by the public prosecutor, or an officer having the prisoner in custody, by a magistrate, or by any one having authority over him or concerned in the prosecution itself, or by a private person in the presence of one having such authority, are not voluntary and cannot be received. Confessions resulting from spiritual exhortations, promises 1 Greenleaf, Sec. 222.

of secrecy, or promises of reward having no connection with the criminal charge, are, however, deemed voluntary. However, any threats of violence, or any element of judicial compulsion will render a confession involuntary and vitiate the same as evidence.

Where the defendant submits himself to examination at a coroner's inquest or preliminary hearing, he, of course, subjects himself to cross-examination. It has sometimes happened that a severe cross-examination has elicited statements from an accused person in the nature of confessions, or at least admissions, from which an inference of guilt might arise. Query. Are these statements admissible upon the trial of the prisoner? When the cross-examination has been unusually severe, so as to savor of brow-beating or compulsion, it has usually been held that such admissions are not voluntary and should be excluded."

SECTION 32. CHARACTER AND REPUTATION.

Character has been defined as the "sum of the inherited and acquired ethical traits which give to a person his moral individuality." The term "reputation" applies to the opinion which others have formed and expressed as to his character.

In a number of civil actions, such as libel and slander, seduction, malicious prosecution, false imprisonment, breach of promise and criminal conversation, the character of the plaintiff becomes material to the issue and directly concerns the assessment of damages. In other civil cases, it is generally held that the reputation of the plaintiff is not in issue. From the earliest times, however, in criminal cases, a person accused of an infamous or capital crime has been permitted to show his good character.

• McKelvey on Evidence, Sec. 99.

↑ 3 Enc. of Ev., p. 3.