all are successful. The plan is to establish a fund for loaning purposes, charging a little more than the commercial rate of interest on account of the extra risk. In most states it is necessary to procure a special act of the Legislature.

There are very few cities of even 10,000 population where the same need does not exist, and, where it does, it is a worthy enterprise to carry out.

The lawyer undertaking it cannot only secure a steady client in the association formed, but his connection with its formation will attract to him favorable attention, from which he must surely profit.

By addressing the Provident Loan Association in almost any large city the plan of organization, including the bylaws, may be obtained.

Funeral Benefit Societies

In many parts of the country every community has a mutual assessment association for paying funeral benefits on the death of a member, ranging from $50 to $500. Dues are small, according

to the amount of the benefit promised, and are paid monthly, or as assessments are made. They perform a valuable service, and are easy to organize. It is necessary to pay a reasonable salary to one officer, who has charge of the records and accounts and sends out notices. They afford an opportunity for a young lawyer to make a large number of acquaintances, with whom he might not otherwise be brought into contact.

Building and Loan Associations

These organizations are so well known that they require no explanation. Local associations, with conservative management, are almost invariably successful. They are ideal connections for a lawyer, leading to much business directly, such as examining and clearing titles, and they extend his acquaintance among those who will have other business. There is no reason, either, why the lawyer should not also be secretary, receiving a salary for this, and a fee for the use of his office for a meeting place.

inate between verbal acts, which form part of the res gesta, and spontaneous declarations, made after the completion of the particular transaction.

Verbal acts are precisely contemporaneous with the principal event, and are original evidence. Hence the rule against hearsay does not apply to them. They constitute either a part of the issue, a verbal part of an act material to the issue, or circumstantial evidence of an existing condition.

The following examples illustrate the first of the foregoing three classes of verbal acts: (1) The issue is whether a certain alleged oral contract was made or not. Statements by the parties, which constitute the making of the contract, are original evidence. (2) The issue is whether the defendant committed slander or not. The statement constituting the alleged slander is original evidence. (3) The issue is whether the defendant received notice or not. The statement constituting the alleged notice is original evidence.

The following examples illustrate the second class: (1) Declarations by a person charged with larceny, made at the time the stolen property is found in his possession, relative to the circumstances. under which he came into possession of the property, are original evidence. (2) Declarations by a party in possession of certain property, where they allege ownership or otherwise, are original evidence.

And the following examples serve to illustrate the third class: (1) The issue is whether the defendant acted in good faith or not. The information upon which he acted, whether true or false, is admissible as original evidence. A. sues B. for assault and battery. The proof shows that A. provoked B. by callhim a liar. A.'s declaration is admissible as original evidence. The object

(2)

sought in introducing it is not to prove the truth of the statement, but to show inferentially the state of B.'s mind caused by the provocation.

In all of the foregoing illustrations the declarations are verbal acts, constituting original evidence and forming part of the res gesta.

On the other hand, spontaneous declarations, made soon after the occurrences to which they relate, and "generated by an excited feeling which extends without a breakdown from the moment of the event which they illustrate," form a real exception to the rule against hearsay. They constitute instinctive and natural utterances of the declarant, resulting from nervous excitement produced by external manifestations, the reflective faculties meantime remaining dormant, thus rendering it impossible for the declarant during this period to frame statements in his own interest. Hence they are admissible in evidence as an exception to the rule against hearsay. They are not, however, original evidence, nor do they constitute any part of the res gesta.

Let us next consider a few decisions involving this misconceived and muchabused doctrine of res gesta.

In Com. v. McPike the defendant was convicted of manslaughter. In sustaining a ruling of the trial judge, who had admitted subsequent declarations of the deceased, Justice Dewey says: "The period of time at which these acts and declarations took place was so recent, after receiving the injury, as to justify the admission of the evidence as a part of the res gesta." Since the declarations did not accompany the main transaction, but were made after its completion, they formed no part of the res

3 Carr v. State, 43 Ark. 104. 43 Cush. (Mass.) 184.

gesta. Hence, if they were admissible at all, it was because of their spontaneity.

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In Com. v. Hackett the defendant was on trial for murder, and the judge admitted in evidence a declaration made by the deceased a short time after the fatal blows were struck. In reviewing the case, Chief Justice Bigelow, in speaking of this declaration, says: "But it was an exclamation or statement, contemporaneous with the main transaction, forming a natural and material part of it, and competent as being original evidence in the nature of res gesta." Since the declaration was made after the blows were struck, it was not contemporaneous with the main transaction, and therefore it was not "original evidence in the nature of res gesta." As in the case of Com. v. McPike, if the declaration was admissible at all, it was because of its spontaneity.

In the celebrated case of Regina v. Beddingfield the defendant was convicted of murder. The deceased, according to the evidence, suddenly came out of her home with her throat cut, and immediately said something to another woman concerning the transaction, pointing backward toward the house. In a few minutes the declarant was dead. Chief Justice Cockburn refused to admit this declaration in evidence on the ground that "it was not part of anything done, or something said while something was being done, but something said after something done. It was not as if, while being in the room, and while the act was being done, she had said something which was heard." The declaration in this case was no part of the res gestæ, as indicated by the Chief Justice, but it is quite probable that it should have been. admitted as a spontaneous declaration.

52 Allen (Mass.) 136. 14 Cox, Cr. Cas. 341.

In the case of State v. Molisse," which was tried in Louisiana, the defendant, who was charged with murder, offered testimony that the deceased, ten minutes after he was fatally shot, said to the witness, "if he had not shown himself so plucky and willing to fight, he would never have been shot by the defendant." The trial judge excluded this declaration on the ground that "it was not under the circumstances part of the res gesta and was not said by the deceased under the sense of impending dissolution." The defendant was convicted of manslaughter, and he appealed the case to the Supreme Court. Justice Manning, speaking for the majority of the court, says:

"The witness in this case should have been permitted to testify. The statement of the deceased to him was soon enough after the homicidal act and sufficiently connected with it to be an immediate concomitant of it, and not a statement proceeding from or suggested by a calculated policy, and was therefore a part of the res gestæ.”

In the humble judgment of the writer of this article the opinion by Justice. Manning is erroneous. The declaration. in question was certainly no part of the res gestæ, and it is very doubtful that it was admissible as a spontaneous declaration.

also was reviewed by the Supreme Court of Louisiana, the correct view is clearly stated. In this case the defendant was charged with entering a store with intent to steal and with petit larceny. The prosecuting witness testified that he had occasion to step into a back room for a glass of water, and while so occupied his little girl, whom he had left in charge of the store, called out to him, "You are robbed." Counsel for defendant thereupon made a motion that the testimony relative to the child's statement be stricken out as hearsay; but the trial court overruled the motion, and to this ruling an exception was taken. Justice Fenner, in reviewing the case, says: "With due respect to the philosophical discussion of the subject of res geste by defendant's counsel, we must say that, under the statement as made by the judge, the exclamation of the child was too clearly a part of the res gestæ to admit of question. The participants in the events which the witness was relating were the child who made the exclamation, the witness who heard it and in consequence rushed into the store, and the defendant who ran out of the store; and the three acts are inseparably connected with, and explanatory of, each other, and together constitute the transaction."

The declaration made by the little girl accompanied the main transaction and clearly characterized it. It was, therefore, a verbal act, and constituted part of the res gesta.

Another source of confusion in the decisions is the misapplication of the res geste doctrine to declarations made by agents and co-conspirators. As a rule the admissibility of these classes of declarations does not depend upon the res gestæ doctrine at all. It usually depends upon the doctrine of admissions. The declaration of an agent, made within the

scope of the agency, is binding upon his principal; and whether it forms part of the event to which it relates, or not, is wholly immaterial. Similar observations are applicable to the declarations of a co-conspirator.

Again, much confusion exists in the decisions owing to a misapplication of the res geste doctrine to declarations made by the complaining witness in a rape case. Suppose, for example, that A. is on trial for rape, and that B., the victim of the outrage, made complaint to her mother a few hours after the event occurred. May the mother, against objection, testify to the details of the complaint? Upon this question the decisions, both in this country and in England, are in hopeless conflict; and this conflict is owing, in a large measure, to the fact that the res gesta doctrine is misapplied, whereas, as a matter of fact, the res gesta doctrine has no application to the case at all.

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According to the early English view this class of testimony was inadmissible. The modern view, however, is to the contrary. In an English case, decided in 1839, Baron Parke says: "The sense of the thing certainly is that the jury should in the first instance know the nature of the complaint made by the prosecutrix and all that she then said. But. for reasons which I never could understand, the usage has obtained that the prosecutrix's counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner's conduct towards her, leaving the counsel of the latter to bring before the jury the particulars of that complaint by crossexamination." On the other hand, in an English case,1o decided in 1896, Justice Hawkins, speaking for the English Court for Crown Cases Reserved, says:

Regina v. Walker, 2 Moo. & Rob. 212 10 Regina v. Lillyman, 2 Q. B. D. 167.

"In the result, our judgment is that the whole statement of a woman containing her alleged complaint should, so far as it relates to the charge against the accused, be submitted to the jury as a part of the case for the prosecution." This is the modern English view.

The weight of American authority, however, is opposed to the modern English view. The fact that complaint was made may be shown, but not the details. of the complaint.

As previously stated, the admissibility of this class of testimony does not depend at all upon the res gesta doctrine. Its admissibility depends either (1) upon the spontaneity of the declaration; (2) upon the fact that its purpose is to explain a self-contradiction; or (3) upon the fact that its purpose is to corroborate other evidence given by the prosecutrix. Unfortunately, however, courts often fail to observe this discrimination, and erroneously hold that the declaration is admissible as a part of the res gesta. Thus, in an Iowa decision,11 Justice Robinson says: "Moreover, we think the declaration was admissible as a part of the res gesta. It was made but a few moments after the alleged ravishment had been accomplished, and while declarant was under the influence of the mental excitement which it produced. It was made within such time after the act to which it referred and

under such circumstances as to preclude the element of premeditation." In this case the declaration was admissible as a spontaneous declaration, but it was no part of the res gesta. It was hearsay, but owing to its spontaneity its details. were admissible. As said by Chief Justice Park: 12 "Her natural impulses prompt her to tell all the details of the transaction. Why, on the same princi

11 McMurrin v. Rigby, 80 Iowa, 325, 45 N. W. 878.

12 State v. Kinney, 44 Conn. 156.

ple, ought not her statement of the details to be evidence?"

The second ground, as heretofore stated, upon which the declaration may be admissible is the fact that its purpose is to explain a self-contradiction; that is, to sustain the prosecutrix when in some manner impeached. This impeachment, it is to be observed, may arise inferentially. Thus, ordinarily, mere absence of evidence that she made complaint raises a presumption of fact which tends to impeach her. As said, in a recent case,13 by Justice Bartch: "The natural instinct of a female thus outraged and injured. prompts her to disclose the occurrence, at the earliest opportunity, to the relative or friend who naturally has the deepest interest in her welfare; and the absence of such disclosure tends to discredit her as a witness, and may raise an inference against the truth of the charge. To avoid such discredit and inference, it is competent for the prosecution to anticipate any claim as to effects, and show by affirmative proof of the vic

tim and of her relative friend to whom she narrated the circumstances of the outrage, that complaint was made re

cently after its commission." In this

case the fact that the complaint was made may be shown, but not its details.

The third ground of admissibility of this class of declarations, heretofore stated, involves the principle which is frequently applied by the courts in admitting in evidence subsequent declarations of a testator where the issue is the contents of his lost will. Such declara

tions are admissible only as corroborative evidence. In a rape case the complaint made by the prosecutrix is admissible to corroborate her testimony given on the witness stand. As the courts say,

its purpose is "to verify" or "to test her recollection." Where this is the pur

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