to the witness, and having asked him whether he wrote that letter; because if it were otherwise, the cross-examining counsel might put the court in possession of only a part of the contents of a paper, when a knowledge of the whole was essential to a right judgment in the cause. z 1. HEARSAY § 662. III. HEARSAY. GENERALLY INADMISSIBLE, (a.) Declarations of third parties, § 662. 2. EXCEPTIONS, § 663. (a.) Information going to make up the bona fides of an act, or the res gestæ, § 663. (b.) Opinions as to condition of a party's mind, &c., and his own representations on the subject, § 664. (c.) Declarations of prosecutrix in rape, § 665. (d.) Pedigree, § 666. (e.) Testimony of a deceased or absent witness, § 667. 3. WHERE THE INDICTMENT CHARGES A COMMON AND GROSS OFFENCE, e. g. A NUISANCE, $668. 1. Hearsay generally inadmissible. § 662. Hearsay, in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person. a Such evidence is inadmissible to establish any specific fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge. Its incompetency to satisfy the mind as to the existence of such facts, as well as the frauds which may be practised under its cover, combine to support the rule which excludes it from judicial tribunals. b (a.) Declarations of third parties. — Declarations by third persons in reference to the offence with which the defendant is charged are hearsay, and consequently inadmissible in evidence. Hence evidence of what a living though absent witness testified z Queen's case, 2 Brod. & B. 287; Bellinger v. People, 8 Wend. 595; R. v. Taylor, 8 C. & P. 726. a 1 Greenl. on Ev. § 99; 1 Phil. Evid. 185. Upon the trial of a prisoner for the murder of his wife, a witness for the people, who had heard cries proceeding from the house of the prisoner in the night preceding her death, was permitted, in the court below, to testify what these cries indicated, whether the person was crying from joy or grief. This was reversed in the supreme court of New York, on the ground that the question called for the conjecture of the witness as to the cause of the cries, and not for a description of them. Peckham and Allen, JJ., contra. Messner v. People, 6 Hand (45 N. Y.), 1. See post, § 666. b Per Marshall, C. J., in Mima Queen v. Hepburn, 7 Cranch, 290, 295, 296; Davis v. Wood, 1 Wheat. 6, 8; R. v. Eriswell, 3 T. R. 707. in a former trial is inadmissible. 61 So certificates of officers, and protests, are, in criminal issues, inadmissible. 62 And so, generally, of all statements not in the defendant's presence. ¿3 On an indictment for murder, the admissions of other persons that they killed the deceased are not evidence; c and evidence of threats by other persons are inadmissible. d And so of declarations of the deceased before his death that he was about to disappear. d1 So, too, on an indictment for larceny, declarations of third parties that they committed the theft are inadmissible. e But if such third persons, on being examined as witnesses, had implicated the prisoner by their testimony, evidence of their declarations that they were guilty of the offence is admissible to discredit the witnesses. f And it has been held admissible for a witness to state that he was induced by information derived from a negro, to waylay a party suspected of a design to commit a felony.g But in conformity with the general rule, where, on trial of an indictment for murder, a witness for the prosecution testified that she had seen the two defendants come from a room where the dead body was found, under suspicious circumstances, it was held that the prosecution could not show by other witnesses, that she at once, while giving the alarm, gave the names of the two persons thus seen. h And with this accords the well known position that a witness cannot in general be corroborated by proof of prior statements made by him to others. i 2. Exceptions. § 663. (a.) Information going to make up the bona fides of an act, or the res gesta. - There are, however, several qualifications to the rule by which hearsay evidence is excluded. When it becomes a subject of inquiry whether a person acted, bona fide, prudently or wisely, the information and circumstances on the b Bergen v. People, 17 Ill. 426. See for an exception, post, § 667, closing paragraph. b2 State v. Reidel, 26 Iowa, 430; but see as to exemplifications, ante, § 652. bs Check v. State, 35 Ind. 492; State v. Vincent, 24 Iowa, 570. c State v. Duncan, 6 Iredell, 326; Smith v. State, 9 Ala. 990. d State v. Duncan, 6 Iredell, 236. d State v. Vincent, 24 Iowa, 570. e Rhea v. State, 10 Yerger, 258. f Smith v. State, 9 Ala. 990. g Whaley v. State, 11 Geo. 123, sed quære. h Com. v. James, 99 Mass. 438. i Post, § 820. faith of which he acted, whether true or false, are original and material evidence. This is often illustrated in actions for malicious prosecutions; and also in cases of agency and of trusts. h The same rule applies when declarations go to make up the res gesta. h1 § 664. (b.) Opinions as to condition of a party's mind, &c., and his own representations on the subject. Letters and conversation, also, addressed to a person whose sanity is disputed, being connected in evidence with some act done by him, are admissible for the purpose of showing whether he was insane or not. The bodily or mental feelings of an individual, also, become sometimes material to the issue, and when such is the case, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or of mind, they furnish satisfactory evidence, and often the only proof, of its existence. Whether they were real or feigned is for the jury to determine. Thus the representations of a sick person of the character of his disease, at the time, are received as original evidence. made to a medical attendant or adviser, they are of greater weight; but if made to any other person, they are not, on that account, rejected. With this are to be considered, under certain limitations, opinions of medical and other experts. I If § 665. (c.) Declarations of prosecutrix in rape. In prosecutions for rape, where the party injured is a witness, it is material to show that she made complaint of the injury while it was yet recent. Proof of such complaint, therefore, is original evidence; but the statement of details and circumstances is excluded, it being no legal proof of their truth. m On the same principle, in a prosecution for conspiring to assemble a large h 1 Greenl. Ev. § 101. Post, § 699. h1 Howser v. Com. 51 Penn. St. 332; Com. v. Hackett, 2 Allen, 136; State v. Ah Loi, 5 Nev. 99. i Ante, § 50 a; post, § 821; Wheeler v. Alderson, 3 Hagg. Eccl. R. 574, 608; Wright v. Tatham, 1 Ad. & El. 3; 7 Ad. & El. 313, S. C.; 4 Bing. N. C. 484, S. C. j Greenleaf on Evid. § 102. 188; 1 Phil. Evid. 191; Grey v. Ante, § 48, 50 a; post, § 821. k Aveson v. Lord Kinnaird, 6 East, § 1150. meeting for the purpose of exciting terror in the community, the complaints of terror made by persons professing to be alarmed, were permitted to be proved by a witness who heard them, without calling the persons themselves. o § 666. (d.) Pedigree. - Hearsay evidence is admissible, also, under certain limitations, to prove pedigree or marriage. The main inquiry in such cases is, that of parentage, marriage, or descent; and in order to ascertain the fact, it is essential to know how the party was acknowledged and treated by those who were interested in him, or sustained towards him any relations of blood or of affinity. The law resorts to hearsay evidence in such cases, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. p The rule of admission is, however, restricted to the declarations of deceased persons who were related, by blood or marriage, to the person, and, therefore, interested in the succession in question. q General reputation in the family, shown by the testimony of a surviving member of it, has been held to be included within the exception; r and the declarations of a woman since dead, as to the statements of her husband, in his lifetime were admitted. 8 So, an entry by a deceased parent, or other relative, made in a Bible, family missal, or any book, or in any document or paper, stating the fact and date of the birth, marriage, or death of a child, or other relative, is regarded as the declaration of such parent or relative, in a matter of pedigree. t Tombstones, and other funeral monuments, engravings s o R. v. Vincent, 9 C. & P. 275; see also, Howser v. Com. 51 Penn. St. 332. p 1 Greenl. on Evid. § 103. q Vowles v. Young, 13 Ves. Jr. 140, 147; Goodright v. Moss, Cowp. 591, 594; 1 Greenleaf on Evid. § 103; Whitelock v. Baker, 13 Ves. Jr. 514; Johnson v. Lawson, 2 Bing. 86; Monkton v. Attorney Gen. 2 Russ. & My. 147, 156; Crease v. Barrett, 1 Cromp. Mees. & Ros. 919, 928; Jewell v. Jewell, 1 How. S. C. Rep. 231; 17 Peters, 213, S. C.; Jackson v. Browner, 18 Johns. 37; Chapman v. Chapman, 2 Conn. 347; Waldron v. Tuttle, 4 N. Hamp. 371; Cowen & Hill's note, 466, to 1 Ph. Evid. 240. r Doe v. Griffin, 15 East, 293. s Doe v. Randall, 2 M. & P. 20; Monkton v. Attorney Gen. 2 Russ. & My. 165; Bull. N. P. 295; Elliott v. Piersol, 1 Peters, 328, 337; Doe v. Davies, 11 Jur. 607; Johnston v. Todd, 5 Beav. 599. t Berkley Peerage case, 4 Campb. 401, 418; Doe v. Bray, 8 B. & C. 813; Monkton v. Attorney Gen. 2 Russ. & My. 147; Jackson v. Cooley, 8 Johns. 128, 131, per Thompson, J.; Douglass on rings, inscriptions on family portraits, charts of pedigree, and the like, may be described in court, and their inscriptions given as original evidence of the same facts. The ground of such admission is, that it is to be presumed that the relatives of the family would not permit an inscription, without foundation, to remain; and that a person would not wear a ring with an error on it. u Under the same head are classed family conduct, such as the trait of recognition of relationship, and the disposition and descent of property, as affording a presumption from which the opinion and belief of the family may be inferred, resting ultimately on the same basis as evidence of family tradition. To adopt the language of Mansfield, C. J., in the Berkley Peerage case, "If the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate." v On similar reasoning, in the trial of Lord George Gordon for treason, the cry of the mob, who accompanied the prisoner on his enterprise, was received in evidence, as forming part of the res gesta, and showing the character of the principal fact. w § 667. (e.) Testimony of a deceased or absent witness. The testimony of a deceased witness, given at a former trial or examination, may be proved at a subsequent trial by persons who heard him testify, when the party against whom the testimony is offered had an opportunity to cross-examine the witness in the former proceeding. Even the notes of counsel of the testimony v. Sanderson, 2 Dall. 116; Slane Peerage case, 5 Clark & Fin. 24; Carskadden v. Poorman, 10 Watts, 82; Sussex Peerage case, 11 Cl. & F. 85; Watson v. Brewster, 1 Barr, 381. u 1 Greenleaf on Evid. § 105; per Lord Erskine, in Vowles v. Young, 13 Ves. Jr. 144; Monkton v. Attorney General, 2 Russ. & Mylne, 147; Kidney v. Cockburn, Ibid. 167; Camoy's Peerage, 6 Cl. & Fin. 789. Ante, §655. v 1 Greenleaf on Evid. § 106; Berkley Peerage case, 4 Campbell, 416; Goodright v. Saul, 4 T. R. 356. w 1 Greenl. on Evid. § 108; 21 Howell's St. Tr. 542. But see Messner v. people, ante, § 662, note a. x U. S. v. Macomb, 5 McLean C. C. R. 287; U. S. v. White, 5 Cranch C. C. R. 457; Finn v. Com. 5 Rand. 701; Com. v. Richards, 18 Pick. 434; U. S. v. Wood, 3 Wash. C. C. 440; Rhine v. Robinson, 27 Penn. St. R. 30; State v. McO'Blennis, 24 Mo. (3 Jones) 402; State v. Baker, Ibid. 437; Summons v. State, 5 Ohio (N. S.), 325; State v. Houser, 26 Mo. (5 Jones) 431; People v. Diaz, 6 Cal. 248; Barnett v. People, 54 Ill. 325; O'Brian v. Com. 6 Bush (Ky.), 563; but see Brogy v. Com. 10 Grat. 722; and Mendum v. Com. 6 Rand. 704. In U. S. v. Macomb, 5 McLean C. C. R. 287, Judge Drummond says, delivering the opinion of the court: "It is not controverted that the tes - |