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fect test as to the merits of this species of evidence “A true analysis would probably restate the law so

a demonstrative medium, because it is always as to make what we call the hearsay rule the excepunderstood in a discussion of this nature, from the tion, and make our main rule this namely, that principals of legal reasoning, that, that which is not whatsoever is relevant is admissable. To any such relevant is not admissible. It is only when matter main rule there would, of course be exceptions; but of logical relevancy is excluded that any question as in the case of other exceptions, so in the hearsay arises, and the futility of the attempt to solve such prohibition, this classification would lead to a requestion along the lines of relevancy as a basic prin- stricted application of them, while the main rule ciple, is soon perceived. Relevant hearsay evidence would have freer course (James Bradley Thayer, is at times excluded, because the passage of time, LL. D., Prel. Treat. Ev., 520). and the experience of eminent jurists, have dis- Through this maze, inextricable on first imprescovered to us that it is dangerous; that the jury is sion, the only key of elucidation is in this: rememvery liable to be swayed or unduly influenced by it, ber the rule in general is, all hearsay evidence is and will as a rule give to it far more than its pro- excluded; but that to this rule there are exceptions, portionate share of their consideration as measured Keep in mind that these exceptions are based on no by its intrinsic value (2).

underlying principle, are irreconcilable in many inThe very reason that has led, by constant exclu- stances, and are the natural result of the cause already sion of evidence, to the formation of this prohibitory pointed out. Memorize the exceptions to the rule rule against hearsay, also drew exceptions (some as reflected by the reported cases, and carefully disso called because the rule itself never affected them), tinguish the common law from controlling statutes and in the course of time the distinguishing line which may exist in different jurisdictions. The between the main rule and the exceptions to it, student in pursuing his studies in this form will find became so vague and uncertain, that when, in addi- I trust, a large portion of his initial despair lose tion, the absence of a well-reasoned form and sub- color as he proceeds in the light of an increased stance is considered, it is easy of understanding understanding. that, at this time, the study of this branch of evi- I have appended to this article, a table of the dence is a matter of some difficulty. It has been exceptions to the hearsay rule, which, while not said, with his usual force, by an eminent law writer: exhaustive by any means, has been my earnest en

deavor to make a fair reflex of the cases, and which by oral testimony, the law requires the next best I am led to hope, the student may

to his evidence, namely, the testimony of those who can speak from their own personal knowledge.

It is not advantage. requisite


HEARSAY EXCEPTIONS. knowledge of the main fact in controversy, for this (a) Reported Testimony and Declarations Under may not be provable by direct testimony, but only by inference from other facts shown to exist.

(ath. it is requisite that, whatever facts the witness may 1. Must be testimony given at a former trial bespeak to, he should be confined to those lying in his tween same parties or privys in regard to same subown knowledge, whether they be things said or done, and should not testify from information given by ject matter and the witness who testified must be others, however worthy of credit they may be. it is found indispensable as a test of truth and to The evidence must be mutual, i. e., capable of the proper administration of justice that every living use against either party. witness should, if possible, be subjected to, the ordeal

3. In New York witness must be dead or insane. of a cross-examination, that it may appear what were his powers of perception, his opportunities for Some jurisdictions say absence or inability to travel observation, his attentiveness in observing, the is equivalent or where adverse party secrets witness. strength of his recollection and his disposition to

4. In New York and Massachusetts exact words speak the truth. But testimony from the relation of third persons, even where the informant is known,

must be repeated. Some jurisdictions allow subcannot be subjected to this test; nor is it often pos

stance of former testimony to be given. sible to ascertain through whom, or how many per- 5. The former testimony where admitted can be sons, the narrative has been transmitted from the used in civil or criminal actions at this date, original witness of the fact. It is this which constitutes that sort of second-hand evidence termed

(b) Dying Declarations. 'hearsay.'

1. A dying declaration is admitted only in cases (2) The two New Jersey cases, of early date, follow- of homicide where the declarant died of wounds for ing are actual examples: Demoney v. Walker (Coxe the inflicting of which prisoner is on trial. [N. J.), 33 [17901), reads: “ The justice in this case permitted hearsay evidence to go to the jury, but!

When admissable can be used in favor of directed them to pay no regard to hearsay testimony." prosecution or defense. Per Curiam. Reverse the judgment.

3. To adinit a dying declaration, declarant must the State v. MeDonald, reported five years later in the same volume of reports, page 332 (1795), shows the have been capable of testifying had he lived. following language of Smith, J., in reference to cer- Declaration can be oral or written. testimony which had

with objections: 4. To admit a dying declaration, declarant must " Whether according to the strict rule of the law it have been in fear of death when he made it. If he is proper testimony to go to a jury is certainly questionable, but, sitting here as a judge, I have no ob







For dead.



The case of

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was not, even if he did die it would be rejected. jection to hear it."

Fear of death can be inferred.







5. The court and not the jury pass on the tech

(e) Public Documents. nical requirements.

1. To admit a document under this section you 6. In abortion cases dying declaration of the must show a record of a public nature in a public victim are admissable now in New York and some office by a public official under duty to keep it for other jurisdictions by statute at the trial of the public use. perpetrator. These declarations not strictly 2. Recording a deed or other document makes dying declarations.

it public. (c) Declarations in Cases of Pedigree. (f) Ancients Documents, Possessions and Other Statements made by a member of the family

Ancient Matters. in regard to a geneological matter of the family can 1. An ancient deed to be brought in must be at be oral or written.

least thirty years old; must have been produced from 2. Must be made ante litem motam whether proper custody and of course must be relevant. declarant knows of controversy or not. A declara- Some jurisdictions to-day require a user unde: tion before controversy, but in anticipation of one is a deed or lease. Some do not. Rent used to be a admissible.

requisite. Is not now. No proof of execution is 3. To prove a geneological question general repu- required. tation in family is not necessary. You can prove 3. An ancient map is adnitted if ancient and particular statements by a member of family. produced from proper custody (as from a surveyor

4. Where a written statement or chart is offered or conveyancer) documents " include tombstones, in evidence you need not prove the handwriting. etc. Fact that family retained it is proof of authenticity. 4. Proof of proper custody is prima facie proof

5. Declarant must be dead. Some jurisdictions of authenticity. If the docunients are produced say insanity, absence from jurisdiction, etc., are from a custody not proper the genuineness must be equivalent in this respect to death.

accounted for before admissable. 6. Relationship required need not be blood. By marriage will suffice. The relation is seldom ex

(g) Entries and Declarations Against Interests. tended beyond husband and wife.

Declarant must be dead. 7. The pedigree question need not be involved in

2. The declaration must be against declarant's the main issue. Subsidiary issue will be enough. pecuniary or proprietary interest. 8. Interest in the party making the declaration

3. An entry in a day book marked “paid " is will not render it inadmissible.

such an entry against pecuniary interest as to be 9. A declaration of a member of a family can be admissable. admitted to negative legitimacy; where there is no

4. When any one part of an entry is admitted the claim of legitimacy a declaration affirming illegiti- whole is brought in even though part is for macy is inadmissable.

declarant's interest.

5. Prevailing view in England and America is (d) Declarations to Matters of Public

or that entries can be either written (entries) or oral General Interest,

(declarations). Declarant need not be dead. Some cases hold 6. Declarations against proprietary interest exotherwise. As it is reputation that is being proved tend to chattels as well as to realty. death should have no effect or significance.

7. In Massachusetts, contrary to other jurisdicYou cannot go into specific facts to prove tions, oral declarations are not admitted when general reputation in this section.

against pecuniary interest. They are allowed when 3. The declaration need not be ante litem motam. against proprietary interest. Some cases say it must. Nor need the declarant be (h) Account Books of the Parties to the Litigadisinterested.

tion. Shop Book Rule. 4. The fact that declarant did not say it was pub

1. England. Rule emanated from statute of lic reputation (i. e., subject of his declaration) will

James. not reject it so long as he did not say it was not.

A man's shop book is admitted in England (1) 5. A map might be offered in evidence either on

when entry was made within one year before the theory of No. 4, or, if filed, on theory of public action unless an acknowledgment is received. reputation by not objecting to its accuracy.

2. The entry could be made by shop keeper or 6. Evidence of a surveyor at a former trial would his clerk. come in on theory that testimony had become prop

3. The upper courts disregarded rule in time. erty of public.

Lower courts clung to it. 7. Evidence by reputation of a private boundary

4. The rule did not apply to cases between is allowed in the west but not in the eastern States. others than small dealers and their customers.

8. The matter of public or general interest would While entries made under the shop book rule were not be rejected because not main issue. Can be freely received in the colonies England was besubsidiary.

ginning to exclude them. This attitude of the





English courts had its effect upon colonies, but New York Rule. differently in various jurisdictions.

Massachusetts rule is followed, but extended by 1. Massachusetts Rule (Shop Book).

what is known as the New York memorandum rule, Creditor must swear (if he made entry) (1) that a rule known in few jurisdictions. By it any casual the entry was contemporaneous or nearly so (2) entry made by a party who can state that he knew that it is true (3) if required, that it is not paid. the facts when he made it, but has now forgotten 2. If entry was made by clerk he must swear to is admissable. Secondary evidence of it cannot be

If an entry of money loaned could not ex- admitted. As to the course of business rule where ceed $6.67.

A who knew facts reported to B, who wrote them 3. If creditor is dead his handwriting must be down and then dismissed the matter from his mind, proved. If clerk is dead it must be proved (1) that his (A's) testimony that he made a true report, in he was usually entrusted to make entries by the conjunction with the testimony of B that he made creditor; (2) that the books produced are or were a true entry from that report, would make entry plaintiff's account books.

admissable. Books of original entry must be produced. There must be filed and served with the writ, a

(i) Declarations bearing upon the physical or

mental condition of the declarant, or upon statement of items to allow defendant to know what he is to meet.

his intention. New York Rule (Shop Book).

1. Natural effusions of pain, suffering, anguish 1. Shopkeeper cannot have a clerk.

or disgust, etc., are invariably received in evidence 2. Must prove delivery of some items charged.

where the physical or mental condition of an indi3. That books produced are account books of the vidual is in issue. party.

2. Descriptive statements of a person, sick or 4. And by persons who have dealt with him that injured, in reference to symptoms or effects of his he keeps honest accounts.

disorder or injuries, are also received, when the 5 Cannot be used to prove money lent. Western following circumstances concur: States draw no such restriction.

(a) They are made to a physician for the As to (5) although on principle in “refreshing" purpose of receiving treatment. his memory should lay books aside, in practice he is

(b) They relate to present existing pain or allowed to read. So (5) is practically accomplished.

suffering. Statements made in regard to past

matters or affections are excluded even though (1) Entries and Declaration by Third Persons in closely akin to those existing at the time stateCourse of Duty or Business.

ments are made. English Rule.

(c) When the physician to whom they are 1. Party who makes entry must, in England, be made is called upon to give an expert opinion in dead. (2) The duty under which entry was made

reference to he patient's condition and such must be shown. (3) Handwriting must be proved. opinion is in part based on the statements. (4) That entry was contemporaneous. (5) Knowl- 3. It is sometimes held that the physician should edge of the facts by entry clerk.

confine his testimony in the first instance to his havUnlike declaration against interest all of the ing made an examination of the patient and his entry must go in or no part can.

opinion deduced partially therefrom, leaving the 3. Under English rule declaration can be oral or statements made to him by the patient for the crossentries written.

examination. Massachusetts. Rule.

4. These statements need not be made ante litem In Massachusetts the entry clerk need not be motem. Where they are actually made by an indead, all other requisites (see English Rule) being jured person to a physician for the express purpose present. The American courts differ from England of enabling him to testify in a pending action, based in not allowing oral declarations. If the clerk is upon the injury, that fact should merely affect the alive and made entry in regular course of busi- credibility of the evidence and not its admissability. ness, testifies (1) that he made entry, (2) believes This theory is not universally accepted. it now to be regular and true, but cannot recollect 5. Statements made upon removal of a person the transaction it is admitted. This because from one place to another, are held admissable, in so loss of memory but with entry substantiated far as they bear upon his intentions, where the by testimony of the clerk himself, is as question of the locality of his domicile is in issue; good if he

dead. (England reasons and this not because of the res gesta exception. The the other way.

Says that he could "refresh" intention is proved as an independent fact. if alive, and his testimony should

be 6. Owing to the danger that declarations of this lost by death.) The Massachusetts rule as stated nature which are offered in evidence in favor of the is generally followed in America. Some jurisdic- declarant may have been made in order to attain an tions say insanity or other incapacity of clerk to end, they are generally excluded, unless the surtestify is equivalent to death. Massachusetts rule rounding circumstances are in some measure coris followed in New York.







7. In certain cases where the intention with the Constitution, to the end that the powers of the which an act was committed or omitted is involved, United States might be restrained. Soon after the spontaneous utterances of recognition, dismay, sur-establishment of the federal compact it became eviprise, etc., of third persons who have seen the act dent that there resided within it a principle of or noted the omission are admitted in so far as they growth and expansion unaffected by amendments, tend to throw light upon the intention of the act or bills of right or enactments of State legislatures. omission.

The vitalizing hand of John Marshall enabled the 8. The court decides as to whether this tendency exists.

government of the United States to manifest a 9. The intention involved can form either a sub- rugged strength, an undaunted firmness, as unexsidiary or the main issue.

pected as it was opportune. If a State presumed

to pass a law invalidating an executed contract to (k) Declarations which are part of some fact or which it was a party, the United States Supreme transaction (res gesta) that is itself ad

Court forthwith declared the enactment void (1). niissable.

If it attempted to enjoin the president of the 1. Declarations which are part of an actor transaction, itself admissable, are said to be received United States from enforcing the federal law within in evidence, though otherwise falling under the bane a particular locality, it was met with the rebuff of the hearsay rule, under the res gesta exception.

that such restraint was an unwarrantable inter2. They derive their credit, and confidence is ference with the federal executive (2). placed in them, because they are a part of the act If it sought to tax an instrumentality of the cenand tend to explain it.

tral government (as, for example, a national bank), 3. When neither the act or transaction, or the the Supreme Court of the nation declared that declaration are in themselves admissable, a union“ no trace is to be found in the Constitution of an of the two does not render either of them so.

intention to create a dependence of the govern4. The jurisdictions differ widely as to how close ment of the Union on those of the States for the the connection must be between the principal act or execution of the great powers assigned to it” (3). transaction and the declaration or utterance which is the outgrowth thereof.

Thus appeared a tendency to resist the aggresBoth extremes and a middle view have been the sion of the States and maintain for the general basis of decisions.

government a dignity worthy of a nation. As the 5. Agency and rape, topics usually found under courts continued to clarify their view of federal this exception are not properly included.

jurisdiction and the powers of the United States, 6. As the requisite is that the declaration be they extended its authority with as much vigor as part of” the act, it is a matter of indifference they formerly withstood the advances of the States. whether the declarant be a principal or an acci- One of the most conspicuous examples of this endental outsider.

croachment of the federal upon State authority 7. Results of a transaction or act when so closely

appears in the regulation of interstate commerce. connected therewith as to be scarcely distinguishable The doctrine was declared in Cooley v. Board of from the act itself are generally accepted in evi- Wardens (4) that “whatever subjects of this power dence.

If principle were a factor in the consideration of (over commerce) are in their nature national or this topic they would be excluded. Although closely admit only of one uniform system or plan of reguconnected with they are not part of the act.

lation, may justly be said to be of such nature as 8. The terms “res gesta" and res gestae” have to require exclusive legislation by congress.” With met with indiscriminate use, with resultant con- this suggestion before it, the Supreme Court, in a fusion.

series of decisions, stripped the States of their 9. The res gesta can be a subsidiary as well as power to regulate interstate commerce, even when the main issue.

such regulation directly affected the citizens of NEWARK, New JERSEY, July 3, 1902.

the particular State. This was accomplished by

striking from the foregoing quotation the single GROWTH OF FEDERAL AUTHORITY OVER

word "only,” thus making it announce that “whatINTERSTATE COMMERCE.

ever subjects are in their nature national or admit

of one uniform system of regulation, the power to The chief objection directed against the federal regulate rests exclusively in congress ” (5). Constitution at the of its adoption was that it bestowed excessive powers upon the central govern

(1) Fletcher v. Peck, 6 Cranch (U. S.), 87.

(2) Mississippi v. Johnson, 4 Wall. (U. S.), 475; State ment and unduly limited State sovereignty. To of Georgia v. Stanton, 6 Wall. (U. S.), 50. meet this criticism the first ten amendments were (3) McCulloch v. Maryland, 4 Wheat., 316.

(4) Cooley v. Board of Wardens, 12 How., 299. added, declaratory of the rights of States and of

(5) Kaeiser v. lll. Cent. R. Co., 18 Fed., 151; State their inhabitants, and at the same time interpreting Freight Tax, 15 Wall. (U. S.), 232; Welton v. State of

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From such a position the transition was easy to successfully when conducted by and under the doctrine that in failing to regulate a particular uniform system of laws and regulations ” (11). branch of interstate commerce congress, by its in- In a subsequent case such a license tax was upaction, declared the subject should be free from all held, but the facts show that the goods were regulation; the theory being that in remaining shipped in a wooden box containing small packsilent congress adopted the common or civil law ages of cigarettes. The license was imposed upon governing the subject (6).

the sale of the latter, which evidently were not in This large interpretation placed upon the com- the original package, but became part of the mass mercial clause of the Constitution has deprived of property within the State when removed from the States of most of their sovereignty respecting the wooden case (12). interstate traffic. It will be our object to ascer- If the importation and sale of these goods in the tain what has been the extent of this encroachment original wrappers is absolutely prohibited a fortiori, on the part of congress and how much power yet the law is bad (13). remains in the separate States to affect the mutual From various motives the State legislatures have intercourse of their citizens.

enacted laws providing for the inspection oi cattle

whose flesh is sold within the State. As congress HEALTH REGULATIONS.

has no power to interfere with the domestic affairs State legislatures have sought to protect the of a State by inspecting articles sold therein (14), health of their inhabitants by enactments whose it is desirable that the State should possess this operation has restricted traffic among the States. right, and it is, in fact, specifically given by the Where the requirements relate to the fumigation Constitution (14a). of vessels by State officers and the quarantine of If, therefore, the statute appears to be a bona fide such as are found to be infected, the law has been exercise of the constitutional privilege (as where it held valid, as an exercise of the police power, al- forbids the introduction into the State between though it creates lien upon all such vessels to the certain dates of cattle capable of or likely to imextent of the charges, and works to the disadvan- part of the Texas fever), it is justified under the tage of those engaged in interstate commerce (7). police power (15). But, if the law enacts that no So, if the law requires the examination and dis- cattle shall be introduced into or driven across the infecting of the baggage of all immigrants, irre- State, irrespective of their condition (16), or if the spective of the place from which they conie, it is imported animals are required to be inspected and valid upon the same grounds (8). But, if the act ' dipped ” before entering the State, and the same attempts to force upon the owners or officers of the precautions are not observed regarding those interstate vessel the duty of inspecting passengers which are domestic, the law is invalid as unduly to ascertain if they are diseased (9) or requires a interfering with the importation of such steck (17). bond or a fee for each immigrant landed (10), the So, also, the courts will look beyond the mere law is unconstitutional.

language of statutes and observe their practical The subject of the importation and sale of operation, and, if they discriminate against imcigarettes has often engaged the attention of the ported products, they are invalid, as where a city courts, and it has been held that a State cannot, ordinance levied a license tax upon all persons in legislating for the health of its inhabitants, re- who sold meat outside of the market house, except quire a license for selling cigarettes in the original non-residents, who, after market hours, were over, package, for "interstate commerce being the pur- sold meat of their own raising (18), or where a city chase, exchange, transportation and sale of com- requires the inspection of cattle and the slaughtermodities in and between the different States, is ing of the same within one mile of the city limits national in character, and can only be carried on or inspection within twenty-four hours of kill

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ing (19). Missouri, 91 U'. S., 275; Henderson v. Mayor of N. Y., Even the most salutary laws passed for the pur92 U. S., 259; Walling v. Michigan, 116 U. S., 446; Robbins v. Shelby County Dist., 120 U. S., 489; Farris v.

(11) In re Minor, 69 Fed. Rep., 233. Henderson, 33 Pac. Rep., 380 (Okl. Ter., 1893).

(12) In re May, 82 Fed. Rep., 422. (6) Welton v. State of Missouri, 91 U. S., 282; Hall

(13) Sawrie v. Tenn., 82 Fed. Rep., 615. V. De Cuir, 95 U. S., 485; Robbins v. Shelby Taxing

(14) U. S. v. Boyer, 85 Fed. Rep., 425; U. S. v. De Dist., 120 U. S., 489; Brennan v. Titusville, 153 U, S.,

Witt, 9 Wall. (C. S.), 41,

(14a) Neilson v. Garza, 2 Woods C. C. Rep., 287. (7) Morgan v. Louisiana, 118 U. S., 455.

(15) Missouri Co. v. Huber, 169 U. S., 613. (8) Minn. Ry. Co. v. Milner, 57 Fed. Rep., 276.

(16) R. R. Co. v. Husen, 95 U. S., 465; Farris v. Hen(9) People v. Pac. Mail Co., 16 Fed. Rep., 344.

derson, 33 Pac. Rep., 380 (Okl. Ter., 1893.) (10) Henderson v. Mayor of N. Y., 92 U. S., 259; (17) State v. Duckworth, 39 L. R. A., 365 (Idaho, 1897.) People v. Compagnie Trans., 107 U. S., 59. (For a (18) Georgia Packing Co. v. Macon, 60 Fed. Rep., 774. legitimate regulation by State, see Mayor v. Miln, 11 (19) Ex parte Kieffer, 40 Fed. Rep., 399; Minn. v. Pet. (U. S.). 102.)

Barber, 136 U. S., 313; Brinmer v. Rebman, 138 U. S., 78.


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