plaint of having been violated, is not hearsay, but original evidence of a fact, which is most important, and which cannot be ascertained make declarations a part of the res gestae they must be contemporaneous with the main fact-not, however, precisely concurrent in point or time. If they spring out of the transaction, elucidate it, are voluntary and spontaneous, and make at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to be regarded as contemporaneous. Mitcham v. State, 11 Ga. 615; Hanby r. Johnson, 5 Md. 450. [State v. Garrand, 50 Oreg. 216; State v. Lull, 48 Vt. 581; State v. Winner, 17 Kan. 298; Rockwell r. Taylor, 41 Conn. 55; Pierson v. State, 21 Tex. Ap.14.] Representations made by a sick person to a medical attendant as to his symptoms, are admissible. Johnson v. State, 17 Ala. 618. Any evidence giving an account of the acts of the accused on the day of the murder, is competent against him. Campbell v. State, 23 Ala. 44. What declarations are part of the res geste cannot be determined by any precise general rule, but only upon consideration of all the circumstances of each case. Meek v. Perry, 36 Miss. 190. In a murder case, the declarations of the murdered man charging the defendant with murder when brought with others into his presence, are admissible, not as dying declarations, but as a part of the circumstances relating to the conduct of the accused when first charged with the crime. State v. Nash, 10 Ia. 81. The rule that declarations of a party at the time of doing an act which is legal evidence, are admissible as parts of the res gesta, does not apply so as to admit, as against third persons, declarations of a past fact, having the effect of criminating the latter. People v. Simonds, 19 Cal. 275. [State v. Haynes, 71 N. C. 79.] The exclamation or declarations of the prisoner at the time of the crime are admissible. Mitcham v. State, 2 Ga. 615. [False explanations of suspicious circumstances, made by the accused, are evidence. Walker v. State, 49 Ala. 398.] So silence is a fact, but to be weighed with great caution. Johnson v. State, 17 Ala. 618. Declarations of the prisoner, unless part of the res gesta, are inadmissible in his behalf. Tipper v. Commonwealth, 1 Met. (Ky.) 6; Dickes v. State, 11 Ind. 557. [He cannot by offering proof of any act of his own lay the foundation for introducing his declarations accompanying that act. Davis v. State, 3 Tex. App. 91; nor can evidence be given on his behalf of a statement made by him subsequent to the crime with which he is charged. Hall v. State, 48 Ga. 607; Powell v. State, 44 Tex. 63; nor are his declarations made to the deceased, at the time of killing, charging him with having insulted his wife, admissible in the absence of direct testimony that such insult was given. Bassham v. State, 38 Tex. 622. Upon the question of the sanity of the prisoner, a letter written by him prior to the commission of the offence, is admissible in evidence to throw light on the condition of his intellect at the time of the act charged. State v. King, 64 Mo. 591; Wharton's Crim. Evid. ? 272, 9th ed. A witness may testify that the accused stated after the homicide that he was sane when it was committed. State v. Kring, 74 Mo. 612. Declarations, etc., are admissible to explain mental feelings, as insanity, etc., as part of the res gesta. Brumley v. State, 21 Tex. App. 222. Where a witness for the prosecution has testified that he charged the accused with the crime for which he is on trial, the prisoner should be allowed to elicit from the witness the reply to the accusation, though a declaration in his favor. Sager v. State, 11 Tex. App. 110. But self-serving declarations are generally inadmissible on his behalf. Walker v. State, 13 Tex. App. 618. In an action for assault and battery the defendant cannot prove declarations of the party assaulted made before or after the affray. State v. Newland, 27 Kan. 764. Declarations of the accused made before an alleged stealing claiming the property are admissible on his behalf. State v. Thomas, 32 La. An, 600.] The acts or declarations of the prisoner are not admissible evidence for him, unless they occurred within the period covered by the criminating evidence, or tend in some way to explain some fact or circumstance proved against him, or to impair or destroy the force of some evidence for the prosecution, Chaney v. State, 31 Ala. 342. [State v. Ware, 62 Mo. 597; State v. Umfried, 76 Mo. 404.] In a trial for murder, it is competent for the defendant to prove how he was employed at the time he met with the person he is charged to have killed, and what was his conduct a short time before the affray which resulted in the killing. Stewart v. State, 19 O. 302. In proceedings for assault with intent to kill, the evidence tended to show that defendant was assaulted by the injured party and several others: held that declarations of these persons made at the time of the assault, illustrative of its object and motive, were admissible in evidence as part of the res gesta, People v. Roach, 17 Cal. 297. [But threats made by the deceased after the fatal wound are not part of the res gesta. Caw v. People, 3 Neb. 357.] A declaration made by the accused on the day of the

in any other way. There seems indeed to have been at one time some obscurity about the extent to which this inquiry could be pursued,

crime, explaining how blood came upon his hands, is not admissible as part of the res gesta. Scaggs v. State, 8 Sm. & Mar. 722. For the purpose of proving a bargain and sale, the declarations of the parties thereto at the time, are a part of the res gesta, and competent to rebut the presumption arising from the possession of stolen property. Leggett v. State, 15 Griswold, 283. [Phila. Fire Assoc. v. Merchants' Bank, 54 Vt. 657.] On the trial of a defendant indicted for knowingly having in his possession an instrument adapted and designed for coining, or making counterfeit coin, it was held that he could not give in evidence his own declarations to an artificer, at the time he employed him to make such instrument, as to the purposes for which he wished it to be made. Commonwealth v. Kent, 6 Met. 221. When one is indicted for murder, he cannot give in evidence his own conversations, had after going half a mile from the place of murder. Gardner v. People, 3 Scam. 83. Although the declarations or admissions of a party are evidence against himself, yet they do not when offered justify him in introducing proof of his counter declarations made at a different time, unless the latter form a part of the res gesta. Roberts v. Trawick, 22 Ala, 490. See generally Kirby v. State, 7 Yer. 259; Evans v. Jones, 8 Id. 461; Lund v. Tyngsborough, 9 Cush. 36; Cornelius v. State, 7 Eng. 782; State v. Schneider, 35 Mo. 533; Riggs v. State, 6 Cold. 517; State v. Gregor, 21 La. An. 473; Commonwealth v. Jasnes, 99 Mass. 438; Colquitt v. State, 34 Tex. 550; Cabell v. State, 64 Ala. 195; Garber v. State, 4 Cold, 161; Cross v. People, 47 Ill. 152. [Stiles v. State, 57 Ga. 183. Where the State has shown the act of the accused in taking possession of a deadly weapon the defence is entitled on cross-examination to the remarks made by the accused at the time the weapon was taken. Taliaferro v. State, 46 Tex, 522. On telegrams as part of the res gesta, see Common. v. Vosburg, 112 Mass. 419. On a trial for false imprisonment evidence of menaces made by the injured person while detained are inadmissible. Hawkins v. State, 6 Tex. App. 452. On a trial for an indecent assault the plaintiff may testify that before the act the defendant had made improper addresses to her. Mawich v. Elsey, 47 Mich. 10. Where the issue is the forgery to a deed of a signature, the fact that one of the grantors denies having executed is of great weight as part of the res gesta. Baird v. Jackson, 98 Ill. 78. Declarations both of the parties and of bystanders, made during an altercation, are admissible as part of the res geste, if necessary to a full understanding of the act complained of. Baker v. Gaussin, 76 Ind. 317; Bejarano v. State, 6 Tex. App. 265.] Declarations of the accused made when first charged with the crime, held to be admissible in his own favor as part of the res gesta. Comfort v. People, 54 Ill. 404; Head v. State, 44 Miss. 731. See Forrest v. State, 21 O. St. 641; Commonwealth v. Williams, 105 Mass. 62; State v. Graham, 46 Mo. 490. A person accused of a capital crime is not permitted to prove his conduct and statements soon after the commission of the crime. Hall v. State, 40 Ala. 698. Declarations of the defendant in an indictment to one who was searching his house after the commission of the crime are not admissible in his own favor. Čommonwealth v. Cooper, 5 Allen, 495. Statements of a person who has been robbed, made to a third party, as to the description of the parties committing the crime, are hearsay, and are not admissible on the part of the defendant to show that he was not the person thus described. People v. McCrea, 32 Cal. 98. Statements made to a thief at the time of the larceny are admissible against his accessory before the fact, as part of the res gesta. Parsons v. State, 43 Ga. 197. Evidence of other distinct larcenies committed on the same day is not admissible. State v. Wohlman, 34 Mo. 482. S. On the trial of an indictment for murder, the declarations of an unknown person are not admissible, when made prior to the murder, to identify the unknown with the person murdered. Mershon v. State, 51 Ind. 14. As a matter of general repute, evidence of character for drunkenness may be given in an action for selling intoxicating liquors, in order to prove knowledge by the vendor in whose neighborhood the vendee lived. Adams v. State, 26 O. St. 584. On an indictment of a jailer for assault and battery upon a prisoner, where the defence was disobedience of orders and the evidence showed that the jailer feared violence on the part of the prisoner, it is admissible to show that the sheriff who committed the prisoner told the jailer that he was dangerous and desperate. State v. Lull, 48 Vt. 581. The general reputation of a house as a house of ill-fame may be given in evidence upon a trial for keeping such a house. People v. Buchanan, 1 Idaho, N. S. 681. But of a disorderly house the reputation is inadmissible, being secondary evidence of misorder. State v. Foley, 45 N. H. 466; Commonwealth v. Stewart, 1 S. & R. 342. The declarations of a wounded

and, of course, if the investigation were not confined to the mere fact itself that this particular complaint was made, the evidence would be second-hand, and open to all the objections of that species of evidence. It will, perhaps, be convenient to examine the cases in this place. In R. v. Brazier, 1 East, P. C. 444, the prisoner was charged with assaulting a child of five years old, with intent to ravish her. The child was not tendered as a witness, but evidence was given of her complaint and of the particulars of it. The subject was twice discussed by the judges: on the first occasion, all except Gould and Willes, JJ., thought the evidence inadmissible; these two judges held that the presumption of law as to the incompetence of the child was conclusive, and that the evidence was admissible on that ground; and Buller, J., held the same, if by law the child could not be examined upon oath, about which he doubted. On the second occasion, however, all the judges being assembled, unanimously were of opinion that the child ought to have been tendered as a witness, and, if found to be competent, examined, and that, consequently, the evidence of her statement ought not to have been received. "It does not, however," adds the author, "appear to have been denied, by any in the above case that the fact of the child's having complained of the injury recently after it was received is confirmatory evidence." This case is wrongly quoted all through the books. In R. v. Clarke, 2 Stark. *27] *N. P. C. 242, 3 E. C. L., it was ruled by Holroyd, J., that the particulars of the complaint could not be given in evidence. In R. v. Webber, 2 Moo. &. R. 212, Parke, B., seemed to think, that because the counsel for the defence could on cross-examination elicit the particulars of the statement, that it would be better to permit the evidence to be given at once in chief. But the reasoning seems in no way conclusive; for not only would the rules of evidence be thereby unnecessarily infringed, but it is obvious that, from the relation in which the woman who is said to have been violated stands to the prisoner, there can be no danger in allowing him to take advantage of any statements by her which make in his favor; those statements standing, in fact, in the place of admissions. In R. v. Megson, 9 C. & P. 420, 38 E. C. L., where the prosecutrix had died before the trial, and without her deposition having been taken, Rolfe, B., received evidence (the prisoner's counsel not objecting) that she had made a complaint, on her return home, of an outrage having been committed upon her, but held that the particulars of such complaint were not admissible. In a case where the prosecutrix was called, but did not appear, and it was objected on the part of the prisoners that evidence of recent complaint is receivable only to confirm the prosecutrix's story, and that as her evidence was not before the jury it could not be confirmed, Parke, B., rejected evidence of the prosecutrix having made a complaint. R. v. Guttridge, 9 C. & P. 471, 38 E. C. L. În R. v. Osborne, Car. & M. 622, the

person immediately after recovering consciousness lost on receiving the wound, are admissible. Johnson v. State, 65 Ga. 94. The infamy of a defendant, evidence of whose declarations may be given as part of the res gestæ, does not affect their admissibility. State v. Dellwood, 32 La. Añ. 1229.

counsel for the prosecution proposed to ask whose name was mentioned in the complaint, which Cresswell, J., refused to permit. In that case the question whether a name was mentioned was admitted by the counsel for the prisoner to be unobjectionable, but it seems to be clearly out of the strict line. In R. v. Nicholas, 2 C. & K. 246, 61 E. C. L., the rape was on a child of ten years old, who was considered an incompetent witness, and the aunt was called, and was asked whether the child made any statement to her; she replied in the affirmative, and it was then proposed by the counsel for the prosecution to ask her the particulars of the statement, which Pollock, C. B., refused. It does not appear from the report that the evidence of the fact of complaint was objected to, though R. v. Guttridge, ubi supra, was referred to in the course of the discussion.' It thus appears that these cases are unanimous, that where the person who makes the complaint is called as a witness and is competent, the fact that the complaint was made, and the bare nature of it, may be given in evidence. Where the person who makes the complaint is not called as a witness, or, on being called, is found to be incompetent, the decisions are somewhat conflicting. On the one hand, it has been sought in this case to introduce the whole statement; on the other, attempts have been made to exclude, under these circumstances, all evidence about the statement whatever. Both contentions have some countenance of authority, but it is conceived that neither is strictly accurate; the true rule being, as is submitted, to admit evidence of the fact of complaint in all cases, and in no case to admit anything more. The evidence, when restricted to this extent, is not hearsay, but, in the strictest sense, original evidence; when, however, these limits are exceeded, it becomes hearsay in a very objectionable form. There is every reason, therefore, why it should be admitted to the extent indicated, and none why it should be admitted any further. It appears to be highly objectionable in any case to admit the fact of the complaint and the name of the person *complained of, because, as pointed out by Bramwell, L. J., in Reg. v. Wood, 14 Cox, C. C. 46, [*28 the jury will, of course, infer that the woman complained of the offence as charged being committed by the prisoner; and such evidence having been given in the above case the Lord Justice ordered the whole conversation to be given in evidence. The case ended in an acquittal, and it is conceived must not be taken as a precedent.3

1See contra, McMath v. State, 55 Ga. 303.

2

'Although proof of the fact that the prosecutrix made immediate complaint is competent, evidence of the particulars of such complaint are inadmissible on behalf of the prosecution. Baccio v. People, 41 N. Y. 265. [People v. Mayes, 66 Cal. 597; Johnson v. State, 21 Tex. App. 368. Except as part of the res gesta; see McGee v. State, Id. 670.] See Lacy v. State, 45 Ala. 80. [State v. Jones, 61 Mo. 232. Evidence is admissible that immediately after the alleged rape the prosecutrix charged the crime on the defendant. Burt v. State, 23 O. St. 394.] At the trial of an indictment for an assault with intent to commit a rape on a young child, whose tender age prevented her from giving any material testimony, it is not admissible to ask the mother, "Did the child tell you how this occurred at the time?" People v. Graham, 21 Cal. 261. S.

On the time within which the complaint was made see Hill v. State, 5 Lea. (Tenn.) 725.

Evidence of complaint in other cases. The same rule applies to other cases as to rape; namely, that where a person has been in any way outraged, the fact that this person made a complaint is good evidence, both relevant and admissible. Thus, in R. v. Wink, 6 C. & P. 397, 25 E. C. L., upon an indictment for robbery, evidence was given (without objection) by the prosecutor, that he made a complaint the next morning to a constable. He also stated (no objection being made) that he mentioned the name of a person, as the name of one of the persons who had robbed him, but this seems objectionable. The counsel for the prosecution then proposed to ask whose name was mentioned, but Patterson, J., refused to permit it, adding, "but when you examine the constable, you may ask him, whether, in consequence of the prosecutor mentioning a name to him, he went in search of any person, and, if he did, who that person was." Cresswell, J., in the case of R. v. Osborne, Car. & M. 622, objects to the latter part of this dictum; but the questions suggested are certainly very common and rarely objected to, and, indeed, they hardly seem objectionable. On an indictment for shooting at the prosecutor, Patterson, J., held that evidence was admissible to show that the prosecutor, immediately after the injury, had made communication of the fact to another, but that the particulars could not be given in evidence. R. v. Ridsdale, York Spring Assizes, 1837; Stark. Ev. 469 (n).

There is a case of R. v. Foster, 6 C. & P. 325, 25 E. C. L., in which the prisoner was charged with manslaughter. A wagoner was called, who stated that immediately after the accident he went up to the deceased, and asked him what was the matter. It was objected that the reply of the deceased, which went to explain the cause of the accident, was not evidence, but Gurney, B., said that it was the best possible testimony that, under the circumstances, could be adduced to show what it was that had knocked the deceased down; and he added that the case of Aveson v. Lord Kinnaird, infra, p. 32, bore strongly upon the point, Park, J., and Patterson, J., concurring. In that case Lord Ellenborough said, "If at the time she fled from immediate personal violence from the husband, I should admit what was said." A somewhat similar case is that of Thompson et ux. v. Trevanion, Skin. 402, where, in action for an assault upon the wife, Holt, C. J., allowed what the wife said "immediate upon the hurt received, and before that she had time to devise and contrive anything for her own advantage," to be given in evidence.1

These two cases are difficult to reconcile with established principles. It is to be observed that both extend to the particulars of what was said; and, though they were both made in close proximity to the event to which they profess to relate, it seems very questionable indeed whether that ground alone, as is presumed by Lord Holt, is sufficient to render them admissible. In R. v. Foster there was the additional circumstance that the person who made the *statement was dead; but it seems to require much consideraOn this see Crookham v. State, 5 W. Va. 510; Wharton's Crim. Evid. (9th edit.), * 296 and notes.

*29]