Imágenes de páginas
PDF
EPUB

physical symptoms, such as insomnia, incontinence of urine, childishness, loss of shame, petulancy, prodigality or penury, and in men, tendencies decidedly amorous and obscene. Ham. Med. Jur. Ray, Bulfour, Browne and Pritchard.

When an "unsound mind" is alleged to exist, and facts showing more or less mental unsoundness proved, the question will arise, has the testator been proved to be of a mind sufficient unsound to destroy the presumption of testamentary capacity? While the rule of law in Stewart v. Lispenard has never been expressly overruled, yet through the influence of the opinion of Davies, J., in Delafield v. Parish and the cases there cited, it has never been followed in later cases, and the rule declared by Judge Davies has been universally accepted. The opinions of Lord Kenyon in Greenwood v. Greenwood, 3 Curt. App. 2, and of Lord Erskine in Harwood v. Baker, 3 Moore Priv. C. R. 282, and Mr. Justice Washington in Harrison v. Rowan, 3 Wash. C. C. lay down the rule adopted by Davies, J.

It is substantially this: Testamentary capacity exists only where the testator knows what he is doing, to whom he is giving his property, its extent, and those who have claims unpon his bounty, and the nature of such claims. In order to exercise freely the will power, the intellect must have comprehended the particulars and elements of the transaction in which the testator was engaged. Every mau making a will is presumed to have had the "sound mind" required by the statute, yet if mental unsoundness be shown in such a degree and of such a nature as to prevent the testator's having the knowledge above described, no valid will can be made.

In cases where mental unsoundness is the question a very interesting state of affairs often arises. When insanity is alleged, and to a certain extent proved, it is frequently asserted that the will was made in what is known as a "lucid interval." "Lucid intervals" are recognized by law, although they are viewed with great suspicion by medical writers, and the rule in such cases, as laid down in Cartwright v. Cartwright, 1 Phillim. 100, is as follows: "If you can establish that the party afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved, is sufficient, and the general habitual insanity will not affect it; but the effect of it is this, it inverts the order of proof and of presumption, for until proof of insanity is made, the presumption is that the party, like all human creatures, was rational; but where an habitual insanity in the mind of the person who does the act is established, then the party who would take advantage of the fact of an interval of reason, must prove it." Much speculation on this subject will be found in the cases.

In proving or disproving the existence of "lucid intervals" expert medical witnesses are frequently called, and their testimony should be carefully watched, and generally such witnesses are disbelievers in the existence of a genuine "lucid interval," and their professional opinions greatly color their testimony.

The reason of a rule recognizing such a thing should be always borne in mind. The law does not require that the mind should be absolutely sound; at most, it but requires that the testator at the time of the making of the will should have mind enough to do it intelligently-that is, to freely exercise his will power. All medico-legal writers admit that "remissions" Occur in many mental maladies, during which the force of the disease is lessened, and its influence over the will decreased. During such time delusions which bias the person's judgment temporarily disappear, and to all appearances the man is sane. Yet they insist that "a smouldering fire exists, which is likely to

break out when least expected," and that at most the mental malady is but quiescent. This may all be so, and yet the interval may be lucid enough and the mind and will free enough for the time to act intelligently about the business, and this is all that the law requires.

As has been said in Cartwright v. Cartwright, ut supra, the burden of proof of a "lucid interval" is upon him who asserts it. This does not mean that once the mind be shown to have acted abnormally, the law will presume the continuance of such peculiarity. It seems simply this, that if a mental disease be shown to exist, and if such disease be of a nature permanent or habitual, proof will be required as to its removal or temporary cessation.

When the causes of such malady are accidental or temporary no presumption of its continuance will exist. For instance, the delirium of a fever, or the mental aberration occasioned by undue excitement, will not be presumed to last longer than their causes remain, and so with all mental conditions arising from temporary causes.

The existence of "delusions" in the testator's mind in regard to the common affairs of every-day life is often brought forth to prove an "unsound mind.”

Delusions are of two kinds, viz., simple and insane. A "simple delusion" generally arises from ignorance, and is but a false deduction from true premises. It disappears before clear proof. An "insane delusion" however is a true deduction from false premises, which have no existence outside the mind. No amount of proof can eradicate such a delusion. It is adhered to in the face of all reason and probability. Such a delusion does not however destroy the testamentary capacity, unless it is pertinent to the will which has been made. If it be of a nature to prevent "radical volition" in the matter, as for instance, a delusion in regard to the testator's family, his property, or his duties to others, then it necessarily destroys the required free volition of the testator, and renders the will invalid. Banks v. Goodfellow, L. R., 5 Q. B. Div. 549; Seamen's Friend Soc. v. Hopper, 33 N. Y. 619.

In these cases it will be found stated that a "monomaniac" may make a valid will under certain limitations.

As for the distinction between simple and insane delusions, and the proof required, see Coit v. Patchen, 77 N. Y. 533.

In proving unsoundnes of mind, expert witnesses must give the facts on which their opinions are based (Delafield v. Parish, ut supra), and lay witnesses are allowed to give their conclusions only as to specific acts. Clapp v. Fullerton, 34 N. Y. 190. The subscribing witnesses to the will are alone privileged to give their opinions only.

Testamentary capacity being based on free, intelligent volition, cannot exist without it. So far we have considered free will as affected by inward causes, viz., idiocy, unsoundness of mind, etc.

When the cause preventing a free exercise of the will is exterior to the testator's mind, what is generally known as "undue influence" is said to exist. The rule of law in such case will be found in Coit v. Patchen, 77 N. Y. 533; Matter of Martin, 98 id. 193. BROOKLYN, N. Y. WILLIAM J. CARR.

CRIMINAL LAW-EVIDENCE OF THREATS OF THIRD PERSONS.

SUPREME COURT OF ERRORS OF CONNECTICUT, APRIL 5, 1886.

STATE V. BEAUDET.*

On a criminal trial, evidence of threats and declarations of third parties are incompetent, unless part of the res

4 Atl. Rep. 237.

[blocks in formation]

LOOMIS, J. The prisoner was tried upon an information for an assault upon one Dr. Walter Zink, with intent to murder. He was at the time in Dr. Zink's employ, and an inmate of the family; the other members being the wife of Zink, who was very deaf, a daughter aged fifteen, and a little son much younger. The State claimed to have proved that the prisoner was present in the room with Dr.Zink a short time before the commission of the offense, and was found in the house shortly after. The assault took place in the dining-room of the house, a few minutes after eleven o'clock in the evening. Dr. Zink at the time had upon his person two rolls of bills, one of $56 and the other of $200. During the day-time, preceding the assault, he had received $16 or $18 from one Robert Dougherty, who then had opportunity to see one of the rolls of bills.

[Omitting immaterial statement.]

Upon the trial a witness was asked "whether Dougherty, upon that night, in that saloon, between the hours of half-past nine and half-part ten, made any threats against Dr. Zink." And another witness was asked, "whether on the day before the assault, Dougherty in his hearing made any threats against Dr. Zink." Both questions were excluded by the court, and exceptions taken by the defendant's counsel; and this ruling presents the only question for review.

At the outset it should be noticed that the offer was simply to prove the threats of Dougherty against Dr. Zink. Any threats of any kind would have filled the offer. What act Dougherty threatened to do, or when or how he was to do it, was not indicated; nor was the offered evidence accompanied with any claim, or even a hint that it could or would be supplemented by further testimony. Indeed it nowhere appears in the record that it was even claimed in behalf of the prisoner that Dougherty committed the offense, or that any evidence admitted or to be offered would show it. The threats, whatever they were, so far as appears, were entirely isolated from the transaction in question, and tended in no way to elucidate or give character to any material act or fact in the case. They could not therefore have been received as parts of the res gestœ. As to the threats in the saloon, the only thing it would seem which they characterized was the drunken condition of the one who uttered them. [Omitting a minor consideration.]

But we will forbear further discussion of this aspect of the case, as it is not necessary to place our refusal to grant a new trial on this ground, and proceed to consider the precise question raised by the appeal, namely, were the threats of Dougherty admissible at all, under the circumstances stated? And if so, upon what principle? The only plausible ground for the admission is that the excused might exculpate himself by showing that another was the guilty, party, so any item of evidence which would have been admissible had such other person been on trial, should be received in his favor. We concede the premises, but not the conclusion; for under the rules of evidence it makes a vast difference whether declarations offered in evidence come from the party on trial or not. In the one case they are universally admitted unless irrelevant or self-serving. In the other they are by general rule excluded, subject to a few well-marked exceptions.

In 2 Best Ev., § 506, under the head of "Res inter Alios Acta," it is said: "No person is to be affected by the words or acts of others, unless he is connected with them, either personally or by those whom he represents, or by whom he is represented."

Were this a civil suit in favor of Dr. Zink against the same defendant, for the same assault, would it occur to any one to offer the declarations of Dougherty that he intended to do the act, or even that he had doue it? Is it any the less a matter inter alios when the State is a party? In either case it would be a legitimate defense that another person had committed the deed; but in neither would his threats alone be admissible.

Now to illustrate some of the reasons for such distinction, we will add that where the threats of the one on trial are adduced against him, he is always present in court to deny or qualify them; to show that the witness misunderstood, misremembered or was false; or to explain how the threats were uttered in a transient fit of anger, or from mere bravado, or for intimidation; but where the threat of a third person is introduced he may be far away, and no one can explain its real meaning; and besides the very introduction of such collateral issue serves greatly to confuse and mislead the triers, and justice may thereby be defeated. And if the jury were to pass on such collateral issue it would have no other effect than to acquit the one on trial. The third person could be in nowise legally affected. If he should afterward be indicted and put on trial for the same offense, he would still be at liberty to show his innocence, notwithstanding the fact that the former finding of his guilt caused another's acquittal. And so, if he had previously been tried and acquitted, that fact could in nowise affect the admissibility of his declarations when afterward another person is on trial for the same offense, for the latter would be no party to the verdict. It is therefore going far enough in favor of the accused to allow him to exculpate himself by showing the fact of another's guilt, by some appropriate evidence directly connecting that person with the corpus delicti. The animus of a third person is no defense, and by itself it cannot prove the ultimate fact which is a defense. Even as to the threat of the person on trial, Wharton, in his Criminal Evidence (8th ed.), § 756, says: They admissible in evidence, not because they give rise to a presumption of law as to guilt, which they do not, but because from them, in connection with other circumstances, and on proof of the corpus delicti, guilt may be logically inferred." Then follows a list of informa tive suppositions, designed to show that because one threatens to commit a crime it does not follow that such intention really existed in his mind; much less does it show the actual commission of the crime. Nearly all treatises on evidence contain similar cautions. In 3 Benth. Rat. Jud. Ev. 75, it is said that "declarations of an intention to commit a crime are no less susceptible of being false than declarations of an intention to abstain from the commission of that or a similar crime."

"are

We insist therefore that it is reasonable to exclude the mere disconnected threats and declarations of third persons. If they are parts of the res gestæ, or form links in a chain of evidence connecting with the crime itself, they may doubtless be received. If the threats were to commit a crime in a particular mode, and it was in fact so committed, perhaps they would then be admissible. But in the case under consideration there is nothing at all to show that the thing threatened had any sort of resemblance to the thing done, either in kind or mode.

But if we suspend our discussion of the principles which ought to be applied to the question, and pass to

the consideration of the decided cases as found in other jurisdictions, we shall find the ruling of the court rindicated, not simply by the preponderance of judicial authority, but by absolute unanimity, save in one case in Louisiana, which for reasons to be suggested hereafter, can have little weight in the opposing scale. We will first cite cases precisely analogous to the case at bar, in that threats of third persons prior to the commission of the crime, were offered in evidence by the accused, and excluded; but the threats, instead of being vague and indefinite, as in the case at bar, were generally very specific and significant. The case of State v. Davis, 77 N. C. 483, was an indictment for murder. On the trial, the prisoner proposed to prove by one Peck "that George Nicks had malice toward the deceased, and had a motive to take his life, and opportunity to do so, and had threatened to do so before the court." (2) He further offered to prove by one Rice "that one Peck took a gun, and went in the direction of the house of the deceased some time before the deceased was killed." The court says: "Both exceptions are unteuable, and have been repeatedly so held by this court-the first, because they are declarations of a third party, and are res inter alios acta, and have no legal tendency to establish the innocence of the prisoner; and the second for the same, and additional reason that the time is too vaguely and indefinitely set forth. * ** Such evidence is inadmissible, because it does not tend to establish the corpus delicti. Unquestionably it would have been competent to prove that a third party killed the deceased, and not the prisoner. But this could only have been done by proof connecting Peck with the fact that is, with the perpetration of some deed entering into the crime itself. Direct evidence connecting Peck with the corpus delicti would have been admissible. After proof of the res gesta constituting Peck's alleged guilt had been given, it might be that the evidence which was offered and excluded in this case would have been competent in confirmation of direct testimony connecting him with the fact of killing. No such direct testimony was offered here. It is unnecessary to elaborate, as the questions of evidence here made have been fully discussed and decided by this court in many cases. It is only necessary to refer to the principal ones: State v. Bishop, 73 N. C. 44; State v. May, 4 Dev. 328; State v. Duncan, 6 Ired. 236; State v. White, 68 N. C. 158."

These cases are all pertinent, and supported by similar and some additional reasons. We will not take the time and space necessary for a particular statement of the evidence offered, and the reasoning of the court sustaining its exclusion. To the above list we will add the case of State v. Haynes, 71 N. C. 79.

In Crookham v. State, 5 W. Va. 510, it was held that it was no error to exclude testimony offered by the prisoner, to the effect that another and a different person from himself had made threats to kill the deceased just before the commission of the offense with which he was charged; and that immediately after the offense such other person left the country, and has not since been heard from.

In Boothe v. State, 4 Tex. Ct. App. 202, and in Walker v. State, 6 id. 576, both being indictments for murder, it was held not competent for the accused to prove that a very short time before the homicide a person other than the accused made threats to take the life of the deceased, In the last case the court supported the ruling by saying: "The issue of the trial was the guilt or innocence of the defendant on trial. Evidence is admissible if it tends to prove the issue, or constitutes a link in the chain of proof; and this seems to be the limit, and excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the princi

pal fact or matter in dispute, and for the good reason stated for the rule by Mr. Greenleaf, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead them. 1 Greenl. Ev., §§ 51, 52."

We may add that the doctrine of these cases has received the recent approval of jurists and text writers of high authority. Wharton, in his treatise on Criminal Evidence (§ 225) says: "Evidence of threats by other persons are inadmissible." The same doctrine is found in Whart. Hom., § 693.

In 2 Bish. Crim. Proc., § 623, it is said: "The declarations of the deceased, as of any third person, when not of the res gesta or dying declarations, or communicated to the defendant so as possibly to influence his conduct, are excluded by rules which have been supposed to promote justice on the whole-at all events, which have become parts of the common law, not within the discretion of the courts to set aside. Hence they are not admissible."

And again in the first volume of the same treatise (§ 1248) it is said: "In general, what one says, as for example, that he committed the crime in question, will not be admitted for or against another."

In further support of the ruling complained of, we adduce a few of the numerous decisions holding that admissions of third persons, that they, and not the accused, are guilty of the crime charged, are to be excluded.

In the early case of Com. v. Chabbock, 1 Mass. 143, the prisoner was tried on an indictment for breaking into a house, and also for stealing goods therein. The defendant offered to prove by a witness present that another person had owned to the witness that he had stolen some of the articles mentioned in the indictment. The court held that the evidence could not be admitted, saying: "It was no more than hearsay. If a person other than the defendant had stolen the goods, it was undoubtedly competent for the defendant to prove the fact in exculpation of himself, but not by the mode of proof now offered."

In Smith v. State, 9 Ala. 990, the prisoner, a slave, was indicted for the murder of one Edmund, also a slave. All the evidence was circumstantial. Sam, another slave, had been tried and acquitted for the same murder previously. On the trial it seems there was a strong array of circumstantial evidence against him; but Sam stated that a few days after the murder Smith told him that he killed Edmund. The particu. lars of the statement we omit. But on the trial of Smith, evidence was offered in his behalf that Sam, during his own trial, had became alarmed, and had told the witness that he had wrongfully accused Smith of the murder of Edmund, and he did not wish to die with a lie in his mouth, etc. The counsel for the accused claimed that it was competent for the prisoner, under the circumstances, to show that another committed the murder; and that in this view the declarations of Sam should have been received, as they tended to inculpate him, as well as to show that the prisoner was not the offender. Ormond, J., in delivering the opinion of the court, said: Conceding the true meaning of these declarations of Sam in jail to be an admission of his own guilt, and that he had killed Edmund himself, it does not vary the case in the slightest degree. * ** *The declaration of Sam was not an act within the meaning of the doctrine I have been discussing. *** To give effect to the mere declarations of third persons would be a most alarming innovation upon the criminal law. Such a declaration would not be obligatory on the persons making it. He might afterward demonstrate its falsity when attempted to be used against him. Such testimony may be a mere contrivance to procure the acquittal of the accused."

[ocr errors]

In West v. State, 76 Ala. 98, the question was again before the highest court of the same State, and it was held "that the admission of a third person that he committed the offense with which the accused was charged, not made under oath, though on his deathbed, is mere hearsay, and is not admissible as evidence for the accused."

In Sharp v. State, 6 Tex. Ct. App. 650, it was held no error to refuse to allow a witness for the defense to testify that certain other men confessed that they committed the crime.

* *

threats by other persons is inadmissible. On an indictment for larceny also declarations of third parties that they committed the theft are inadmissible."

In all the numerous cases we have examined, where threats of third persons were excluded, there was no dissenting opinion in any instance; and after diligent search we have been able to find but one case which furnishes any support to the claim of the accused. We refer to that of State v. Johnson, 30 La. 921, where the State, in a prosecution for murder, based entirely on

A similar ruling was also sustained in Rhea v. State, circumstantial evidence, found it necessary to trace to 10 Yerg. 258.

Greenfield v. People, 85 N. Y. 75, was an indictment for murder. Upon the trial the accused offered the letter of one Royal Kellogg to his brother, in which, after alluding to the murder, he said among other things: "If they want me, they can come and get me;" and in connection with the above and certain anonymous letters containing confessions, they offered the declarations of Kellogg and his brother and another person, made within an hour after the murder, and at a place three-fourths of a mile distant. The witness being awakened at the barking of a dog at about four o'clock in the morning, on looking out of the window, recognized the two Kelloggs and one Taplin, and they had a gun and a bag, etc. The witness, after giving in detail their suspicious actions at his place, offered to prove that Taplin said to the Kelloggs on that occasion before they left: "You are damned fools to do it;" and that one of the Kelloggs replied, "If we had not done it, we should all have been hung. Miller, J., in delivering the opinion of the court, said: "Even if this letter could be regarded as a confession of Kellogg that he committed the murder, it was only the declaration of a third party, merely hearsay testimony, and upon no rule of evidence admissible. If such declarations were competent upon any trial for homicide, they would tend to confuse the jury, and to divert their attention from the real issue. The letter did not tend to establish that Kellogg committed the offense, was not a part of the res gestæ, and in no sense relieved the prisoner from the charge for which he was upon trial, or raised any presumption that Kellogg was the guilty party. Confessions of this character are sometimes made to screen offenders; and no rule is better established than that extrajudicial statements of third persons are inadmissible. Whart. Ev., § 644; Whart. Crim. Law, §§ 662, 684; 2 Best Ev., §§ 559, 560, 563, 565,

*

578. * * While evidence tending to show that

another party might have committed the crime would be admissible, before such testimony could be received there must be such proof of connection with it, such a train of fact or circumstances as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts, disconnected and outside the crime itself, cannot be separately proved for such a purpose. In considering the question, we have carefully examined the numerous authorites cited to sustain the position that the evidence was competent, and none of them hold that under such circumstances it could lawfully be received; and it was neither admissible alone nor in connection with the letters referred to."

In Whart. Crim. Ev., § 225, it is said: "Extrajudicial statements of third persons cannot be proved by hearsay, unless such statements were part of the res gestæ, or made by deceased persons in the course of business, or as admissions against their own interest, or are material for the purpose of determining the state of mind of a party who cannot be examined in court. * * Hence on an indictment for murder the admissions of other persons that they killed the deceased, or committed the crime in controversy, are not evidence; and evidence of

*

the accused a motive for the homicide in a previous quarrel with the deceased, when the accused while in liquor uttered threats against the deceased; and upon cross-examination the witnesses for the State, who had in chief testified to the quarrelsome character of the deceased, and to the threats of the accused, was asked what other quarrels the deceased had besides that with the accused, a few days prior to the murder, and the trial court excluded it. The court of review cites no authorities, and enters into no discussion of the question upon principle, but simply says in effect, that although it was of doubtful admissibility, yet on the whole they will give the accused the benefit of a new trial. But even this case can be widely distinguished from the one on trial. The State had put in issue the quarrelsome character of the deceased, and to that extent the cross-examination was pertinent; and further, the case seemed to be controlled by the question whether the motive arising out of a recent quarrel pointed exclusively to the accused. The fact drawn out on a cross-examination might show that it did not, and therefore there was some force in the claim that it was admissible, in order to weaken that evidence, by showing that others were also included and shared the same motive. But in the case at bar we have already called attention to the fact that the motive which moved Beaudet was enentirely different from that attributed to Dougherty; and hence the evidence as to the latter in no way impaired that applicable to the former.

In regard to the admissibility of the confessions of guilt by third parties in criminal trials, there is absolute unanimity in the decisions, so far as we have been able to ascertain.

In Smith v. State, supra, Goldthwaite, J., dissents from the majority opinion, but in so doing he expressly concedes "that the confession of a third person of his guilt is not evidence in favor of another, when standing alone, when aided by other facts and circumstances." Yet he contends that it is so whenever the party confessing is connected with the crime by strong presumptive circumstances.

We find also a qualification of the doctrine in the dictum of a distinguished reporter." It is found in a note to the case of Speer v. Coate, 3 McCord (S. C.), 232, where the reporter gives a summary of the exceptions to the rule excluding hearsay evidence, and in paragraph 12 he says: "So confessions in extremis that the person himself had committed a forgery of which another was indicted are admissible; " citing as authority Clymer v. Littler, 1 W. Bl. 345. The reporter then adds his own opinion: "So I should think that where a person comes forward and confesses the crime, and surrenders himself to justice, such confession would be admissible evidence for a prisoner accused of the same offense."

It should be observed that stress is placed on the fact that the person confessing also surrenders himhimself to justice, implying that the confession alone would be insufficient; but we ought also to add that the principle of the case cited from 1 W. Bl. 345, which led to and suggested the proposition just referred to, owing to some oversight or mistake, was stated in an

erroneous and most misleading manner. It would be supposed upon reading the note of the case, that upon the trial of one person indicted for the crime of forg ery, the confessions in extremis of another person were held admissible in defense of the person on the trial. But it was no such case. On the contrary, it was a mere civil action, based upon a controversy between adverse claimants to property under two different wills of one Clymer, deceased. The action was ejectment. The plaintiff claimed under a will made in 1743. The defendant claimed under the heir at law by an instrument dated in 1745, very imperfect in form, but purporting to have been subscribed by Mr. Clymer, and to give the property as follows: "Whereby in consideration of natural affection he covenants and agrees," but with nobody, "that the lands in question shall go and be given to his wife for life, and then to Elizabeth, wife of Wm. Medlycott," she being also his heir at law," and her heirs forever." It was attested by the said William Medlycott and Elizabeth Mitchell. The first will was concealed, and William Medlycott took possession under the last one in the right of his wife; but on his death bed, in 1746, he declared that the instrument of 1745 was forged by himself; and he produced from under the bedclothes the first will of 1743, and caused it to be sent to the parties interested, who had it proved, and who then brought this suit; and this evidence, without any objection, went before the jury in connection with the inspection of the two wills, and verdict was rendered for the plaintiff.

Lord Mansfield, in giving the opinion of the court on this point, simply says: "The testator died in 1746; both wills in the custody of Medlycott; the other subscribing witness dead; his wife to be benefited under it; he on his death bed sends the lessor of the plaintiff his title, which is inconsistent with that under which the defendant claims. Under all these circumstances I think it admissible evidence. No general rule can be drawn from it. No objection was made to its production. It came out, it seems, on the cross-examination of the defendant's counsel. Unless therefore manifest injustice has been done on the whole case, there is no ground for a new trial. Here appears to be good reason for the verdict."

A further criticism of the proposition referred to may be found in 2 Phil. Ev. (4th Am. from 7th Lond. ed. Carver & Hill's notes), p. 703, note 493: "And if an actual surrender should make the declaration admissible, it would at once throw open the door for fraudulent testimony, even in exculpation of the most atrocious criminals. The self-accuser is yet to be tried, and he may act under the full consciousness of having such clear proofs of his own innocence-an alibi, or some other evidence-that he would be risking but little by doing the whole as an act of solemn trickery in behalf of his friend. The surrender would not estop him. Even should the people prosecute, convict and execute him as the sole malefactor, the verdict would not estop them, nor be any evidence whatever against the first accusation. It would be res inter alios."

There was no error in the ruling complained of.
The other judges concurred.

[blocks in formation]

apt words and personal delivery. But if needed to pay the donor's debts, his administrator may recover them.

ACTION by plaintiff as administrator of James Kiff,

deceased, to recover a number of notes, and mortgages executed to secure them, payable to the plaintiff's intestate, which it is alleged the defendant unlawfully withholds from the plaintiff. The defendant admitted that he held the possession of the bonds and mortgages, but denied that he held them unlawfully.

For a further defense, he pleaded as a counterclaim, that he was the rightful owner and in possession of the said bonds, notes and mortgages. That James Kiff, in his last illness and in contemplation of his death, and but a short time before his death, gave and delivered to the defendant said notes, bonds and mortgages, to and for his sole use and benefit. Other facts appear in the opinion. The defendant had judg

ment.

B. B. Winborne, for plaintiff.

David A. Barnes and J. B. Batchelor, for defendant.

ASHE, J. A donatio causa mortis, in Nicholas v. Adams, 2 Whart. 17, is defined by Gibson, C. J., to be "a conditional gift, depending on the contingency of expected death, and that it was defeasible by revocation or delivery from the peril." To constitute a donatio mortis causa the circumstances must be such as to show that the donor intended the gift to take effect, if he should die shortly afterward, but that if he should recover, the thing should be restored to him. Overton v. Sawyer, 7 Jones, 6.

From this definition it results, that to constitute a donatio mortis causa, there must be three attributes. 1st. The gift must be with the view to the donor's death. 2d. It must be conditioned to take effect only on the death of the donor by his existing disorder; and 3d, there must be a delivery of the subject of donation. 1 Williams Ex. 686.

The donation in this case, possessed all the qualities of a donatio causa mortis. The donor in his last illness, on the Sunday previous to his death on the Tuesday following, while despairing of all hope of recovery, handed the bonds and mortgages in controversy, in the presence of several witnesses, to the defendant, and told him that "he gave him the same, to take and collect them, and that he might have the money and bonds in case he died," and that the defendant then took the bonds and mortgages, and has had possession of them ever since.

The plaintiff contended in this court that the counter-claim could not be maintained, because the title to bonds, bills of exchange and promissory notes, could only be passed by indorsement or assignment, and could not be transferred by mere delivery, so that the delivery of the bonds did not vest the legal title in the defendant, and could not constitute a good donatio causa mortis, and that the counter-claim was therefore defective, because it did not state facts suffi. cient to constitute a cause of action, and in support of his position, he relied upon the case of Overton v. Sawyer, 7 Jones, 6, where it was held that bonds or sealed notes, given by delivery as a donatio causa mortis, may be recovered at law in an action of trover by the personal representative of the donor, and he also relied upon the cases of Fairly v. McLean, 11 Ired. 158, and Brickhouse v. Brickhouse, id. 404. The two latter named cases were actions of trover for the conversion of unindorsed promissory notes, the legal title to which could not, at that time, be transferred, except by indorsement, and the actions were at law.

But since that case was decided, a change has come over our system of legal procedure. Then an action

« AnteriorContinuar »