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all are successful. The plan is to estab- to the amount of the benefit promised, lish a fund for loaning purposes, charg- and are paid monthly, or as assessments ing a little more than the commercial are made. They perform a valuable rate of interest on account of the extra service, and are easy to organize. It is risk. In most states it is necessary to necessary to pay a reasonable salary to procure a special act of the Legislature. one officer, who has charge of the rec

There are very few cities of even ords and accounts and sends out notices. 10,000 population where the same need They afford an opportunity for a young does not exist, and, where it does, it is lawyer to make a large number of aca worthy enterprise to carry out.

quaintances, with whom he might not The lawyer undertaking it cannot only otherwise be brought into contact. secure a steady client in the association formed, but his connection with its for

Building and Loan Associations mation will attract to him favorable attention, from which he must surely These organizations are so well known profit.

that they require no explanation. Local By addressing the Provident Loan As

associations, with conservative managesociation in almost any large city the ment, are almost invariably successful. plan of organization, including the by- They are ideal connections for a lawyer, laws, may be obtained

leading to much business directly, such

as examining and clearing titles, and Funeral Benefit Societies

they extend his acquaintance among In many parts of the country every

those who will have other business. community has a mutual assessment as- There is no reason, either, why the lawsociation for paying funeral benefits on yer should not also be secretary, receivthe death of a member, ranging from ing a salary for this, and a fee for the $50 to $500. Dues are small, according use of his office for a meeting place.

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inate between verbal acts, which form sought in introducing it is not to prove part of the res gesta, and spontaneous the truth of the statement, but to show declarations, made after the completion inferentially the state of B.'s mind causof the particular transaction.

ed by the provocation. Verbal acts are precisely contempo- In all of the foregoing illustrations raneous with the principal event, and the declarations are verbal acts, constiare original evidence. Hence the rule

Hence the rule tuting original evidence and forming against hearsay does not apply to them. part of the res geste. They constitute either a part of the is- On the other hand, spontaneous decsue, a verbal part of an act material to larations, made soon after the occurrencthe issue, or circumstantial evidence of

es to which they relate, and “generated an existing condition.

by an excited feeling which extends The following examples illustrate the

without a breakdown from the moment first of the foregoing three classes of

of the event which they illustrate,” verbal acts: (1) The issue is whether a form a real exception to the rule against certain alleged oral contract was made hearsay. They constitute instinctive and or not. Statements by the parties, which natural utterances of the declarant, reconstitute the making of the contract, sulting from nervous excitement producare original evidence. (2) The issue is

ed by external manifestations, the rewhether the defendant committed slan

flective faculties meantime remaining der or not. The statement constituting dormant, thus rendering it impossible the alleged slander is original evidence.

for the declarant during this period to (3) The issue is whether the defendant

frame statements in his own interest received notice or not. The statement

Hence they are admissible in evidence constituting the alleged notice is orig

as an exception to the rule against hearinal evidence.

say. They are not, however, original The following examples illustrate the

evidence, nor do they constitute any part second class: (1) Declarations by a per

of the res gesta. son charged with larceny, made at the

Let us next consider a few decisions time the stolen property is found in his

involving this misconceived and muchpossession, relative to the circumstances

abused doctrine of res geste. under which he came into possession of

In Com. v. McPike 4 the defendant the property, are original evidence. (2)

was convicted of manslaughter. In susDeclarations by a party in possession of

taining a ruling of the trial judge, who certain property, where they allege own

had adınitted subsequent declarations of ership or otherwise, are original evi

the deceased, Justice Dewey says: “The dence.

period of time at which these acts and And the following examples serve to

declarations took place was so recent, illustrate the third class: (1) The issue

after receiving the injury, as to justify is whether the defendant acted in good

the admission of the evidence as a part faith or not. The information upon

of the res gesta." Since the declarawhich he acted, whether true or false,

tions did not accompany the main transis admissible as original evidence. (2)

action, but were made after its compleA. sues B. for assault and battery. The

tion, they formed no part of the res proof shows that A. provoked B. by callhim a liar. A.'s declaration is admissi

3 Carr v. State, 43 Ark. 104. ble as original evidence. The object 43 Cush. (Mass.) 184.

gesta. Hence, if they were admissible In the case of State v. Molisse,? which at all, it was because of their sponta- was tried in Louisiana, the defendant, neity.

who was charged with murder, offered In Com. v. Hackett" the defendant testimony that the deceased, ten minutes was on trial for murder, and the judge after he was fatally shot, said to the witadmitted in evidence a declaration made ness, “if he had not shown himself so by the deceased a short time after the fa- plucky and willing to fight, he would tal blows were struck. In reviewing the never have been shot by the defendant.” case, Chief Justice Bigelow, in speaking The trial judge excluded this declaration of this declaration, says: “But it was on the ground that "it was not under the an exclamation or statement, contempo- circumstances part of the res gesta and raneous with the main transaction, form- was not said by the deceased under the ing a natural and material part of it, and sense of impending dissolution.” The competent as being original evidence in defendant was convicted of manslaughthe nature of res gesta.” Since the dec- ter, and he appealed the case to the Sularation was made after the blows were preme Court. Justice Manning, speakstruck, it was not contemporaneous with ing for the majority of the court, says: the main transaction, and therefore it “The rule is that time does not deterwas not “original evidence in the nature mine absolutely whether a statement is of res gesta.” As in the case of Com. part or not of the res gesta, although v. McPike, if the declaration was admis- it is a factor, and an important factor, sible at all, it was because of its spon- in estimating whether it is. taneity.

If the acts or declarations are In the celebrated case of Regina v. sciously associated with and related to Beddingfield 6 the defendant was con- the homicidal deed, even though sepavicted of murder. The deceased, ac- rated from it by a short time, they are cording to the evidence, suddenly came evidence of the character of the deed out of her home with her throat cut, and and a part of the res geste. immediately said something to another "The witness in this case should have woman concerning the transaction, been permitted to testify. The statepointing backward toward the house. ment of the deceased to him was soon In a few minutes the declarant was dead. enough after the homicidal act and sufChief Justice Cockburn refused to admit ficiently connected with it to be an imthis declaration in evidence on the mediate concomitant of it, and not a ground that "it was not part of anything statement proceeding from or suggested done, or something said while something by a calculated policy, and was therefore was being done, but something said after a part of the res gesta." something done. It was not as if, while In the humble judgment of the writer being in the room, and while the act was of this article the opinion by Justice being done, she had said something Manning is erroneous. The declaration which was heard." The declaration in in question was certainly no part of the this case was no part of the res gesta, res gesta, and it is very doubtful that as indicated by the Chief Justice, but it it was admissible as a spontaneous decis quite probable that it should have been laration. admitted as a spontaneous declaration. In the case of State v. Moore, which also was reviewed by the Supreme Court scope of the agency, is binding upon his of Louisiana, the correct view is clearly principal; and whether it forms part of stated. In this case the defendant was the event to which it relates, or not, is charged with entering a store with in- wholly immaterial. Similar observations tent to steal and with petit larceny. The are applicable to the declarations of a prosecuting witness testified that he had co-conspirator. occasion to step into a back room for a Again, much confusion exists in the glass of water, and while so occupied decisions owing to a misapplication of his little girl, whom he had left in charge the res gesta doctrine to declarations of the store, called out to him, “You are made by the complaining witness in a robbed.” Counsel for defendant there- rape case. Suppose, for example, that upon made a motion that the testimony A. is on trial for rape, and that B., the relative to the child's statement be victim of the outrage, made complaint to stricken out as hearsay; but the trial her mother a few hours after the event court overruled the motion, and to this occurred. May the mother, against obruling an exception was taken. Justice jection, testify to the details of the comFenner, in reviewing the case, says: plaint? Upon this question the deci"With due respect to the philosophical sions, both in this country and in Engdiscussion of the subject of res gesta by land, are in hopeless conflict; and this defendant's counsel, we must say that, conflict is owing, in a large measure, to under the statement as made by the the fact that the res gesta doctrine is judge, the exclamation of the child was misapplied, whereas, as a matter of fact, too clearly a part of the res gesta to the res gesta doctrine has no application admit of question. The participants in to the case at all. the events which the witness was relat- According to the early English view ing were the child who made the excla- this class of testimony was inadmissible. mation, the witness who heard it and in The modern view, however, is to the consequence rushed into the store, and

uncon

5 2 Alien (Vass.) 136.
6 14 Cox, Cr, Cas. 341.

738 La. Ann. 381, 58 Am. Rep. 181.
8 38 La. Ann. 66.

contrary. In an English case, decided the defendant who ran out of the store; in 1839, Baron Parke says: “The sense and the three acts are inseparably con- of the thing certainly is that the jury nected withi, and explanatory of, each should in the first instance know the naother, and together constitute the trans- ture of the complaint made by the prosaction."

ecutrix and all that she then said. But, The declaration made by the little girl for reasons which I never could underaccompanied the main transaction and

stand, the usage has obtained that the clearly characterized it. It was, there- prosecutrix's counsel should only inquire fore, a verbal act, and constituted part generally whether a complaint was made of the res geste.

by the prosecutrix of the prisoner's conAnother source of confusion in the duct towards her, leaving the counsel of decisions is the misapplication of the res the latter to bring before the jury the geste doctrine to declarations made by particulars of that complaint by crossagents and co-conspirators. As a rule examination.” On the other hand, in the admissibility of these classes of dec- English case,1o decided in 1896, Justice larations does not depend upon the res Hawkins, speaking for the English gesta doctrine at all. It usually depends Court for Crown Cases Reserved, says: upon the doctrine of admissions. The

9 Regina V. Walker, 2 Moo. & Rob. 212. declaration of an agent, made within the 10 Regina v. Lillyman, 2 Q. B. D. 167.

an

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"Ir the result, our judgment is that the ple, ought not her statement of the dewhole statement of a woman containing tails to be evidence?" her alleged complaint should, so far as The second ground, as heretofore statit relates to the charge against the ac- ed, upon which the declaration may be cused, be submitted to the jury as a part admissible is the fact that its purpose is of the case for the prosecution.” This to explain a self-contradiction; that is, is the modern English view.

to sustain the prosecutrix when in some The weight of American authority, manner impeached. This impeachment, however, is opposed to the modern Eng- it is to be observed, may arise inferentilish view. The fact that complaint was ally. Thus, ordinarily, mere absence of made may be shown, but not the details

evidence that she made complaint raises of the complaint.

a presumption of fact which tends to imAs previously stated, the admissibility peach her.

peach her. As said, in a recent case, of this class of testimony does not de- by Justice Bartch: “The natural instinct pend at all upon the res gesta doctrine. of a female thus outraged and injured Its admissibility depends either (1) up

prompts her to disclose the occurrence, on the spontaneity of the declaration; at the earliest opportunity, to the rela(2) upon the fact that its purpose is to

tive or friend who naturally has the explain a self-contradiction; or (3) up- deepest interest in her welfare; and the on the fact that its purpose is to corrob- absence of such disclosure tends to disorate other evidence given by the pros

credit her as a witness, and may raise ecutrix. Unfortunately, however, courts an inference against the truth of the often fail to observe this discrimination, charge. To avoid such discredit and inand erroneously hold that the declara

ference, it is competent for the prosecution is admissible as a part of the res

tion to anticipate any claim as to effects, gesta. Thus, in an Iowa decision," Jus- and show by affirmative proof of the victice Robinson says: “Moreover, we

tim and of her relative friend to whom think the declaration was admissible as

she narrated the circumstances of the a part of the res geste. It was made

outrage, that complaint was made rebut a few moments after the alleged cently after its commission.” In this ravishment had been accomplished, and

case the fact that the complaint was while declarant was under the influence

made may be shown, but not its details. of the mental excitement which it pro

The third ground of admissibility of duced. It was made within such time

this class of declarations, heretofore after the act to which it referred and

stated, involves the principle which is under such circumstances as to preclude

frequently applied by the courts in adthe element of premeditation." In this

mitting in evidence subsequent declaracase the declaration was admissible as a

tions of a testator where the issue is the spontaneous declaration, but it was no

contents of his lost will. Such declarapart of the res gesta. It was hearsay,

tions are admissible only as corroborabut owing to its spontaneity its details

tive evidence. In a rape case the conwere admissible. As said by Chief Jus- plaint made by the prosecutrix is admistice Park:12 “Her natural impulsessible to corroborate her testimony given prompt her to tell all the details of the

on the witness stand. As the courts say, transaction. Why, on the same princi- its purpose is to verify” or “to test her

11 McMurrin v. Rigby, 80 Iowa, 325, 43 recollection." Where this is the purX. W. 878. 12 State v. Kinney, 44 Conn. 156.

13 State v. Neel, 21 Utah, 151, 60 Pac. 510.

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