6, 1861. Blackburn J., speaking generally, said: A person may be said to act maliciously when he wilfully does an unlawful act [act injurious to another: L. R.] without lawful excuse.' Pembliton (Cox C. C.).

Thus, when Dixon, 1814, who was employed to make bread for a military asylum, was charged with delivering bread made from unwholesome materials, it was held to be unnecessary to allege intention to injure anyone's health.

Presumption of intent] See Onus, above, and under individual

crimes.

Husband's coercion] See that title.

Mens rea] In most cases the law regards the criminal [i.e. prohibited] act itself as sufficient primâ facie proof of the presence of this mens rea': Prof. Kenny (c. 3, p. 41, as above), who then repeats almost verbally the rule there quoted, citing Sheppard, 1810. For other cases, see Index; for those in which there may be a breach of the law without mens rea (and which Brett J. declined to call 'crimes': Prince, 2 C. C. R. 163, 1875) and generally, see Agency (of Servants) and Craies on Statute Law (1911), pp. 463-8. The K. B. D. quashed a conviction for aiding and abetting an offence against the Sunday Observance A. 1677, where appellant had bought cigarettes at an eating-house, but there was no evidence of his knowledge that vendor was carrying on his ordinary business, because there was nothing to show a mens rea': Chivers v. Hand, 24 Cox C. O. 520; 84 L. J. K. B. 304; 112 L. T. 221; 79 J. P. 88; 31 T. L. R. 19; 13 L. G. R. 537; W. N. 381, 1914. Cf. Onus, above.

The maxim actus non facit reum nisi mens sit rea is not traced beyond Co. Litt. 247 b.

HEARSAY.

Its nature] Evidence of facts with which the witness is not acquainted of his own knowledge, but which he merely states that he has heard someone else-unless it be the defendant-say is, as a rule, inadmissible on two grounds: (i) That the person originally stating the facts does not make the statement under the sanction of an oath; and (ii) that the person against whom the evidence is offered would lose the opportunity of examining into the means of knowledge of the maker of the statement. But where there is a presumption that hearsay evidence is true, it is admissible. It is, in fact, a form of secondary (or secondhand,' as it was called in previous editions) evidence.

Evidence to explain the transaction] The term hearsay evidence is frequently improperly applied. Thus, where the inquiry is into the nature and character of a certain transaction, what was done, including what was said by anyone present during its continuance, may be admissible; and this is sometimes represented as an exception to the rule which excludes hearsay evidence. But this is not hearsay evidence; it is original evidence of the most important and unexceptionable kind. In such a case it is not a second-hand relation of facts which is received, but the declarations of the actors of the facts themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances: cf. Relevancy, p. 101. Thus it has been held that the cry of a mob who accompanied defendant may be received on his trial for treason as part of the transaction: L. Geo. Gordon, 21 How. St. Tr. 535; 2 Doug. 591, 1781; Damaree, Fost. Cr. Ca. 214; 15 St. Tr. 522, 1710, treason.

Res gestae] Where card-sharpers swindled a man of 21. in a train, and when he spoke to the police at a station they all disappeared, but a total stranger at that moment gave him 27., the C. C. A. held that incident admissible: J. Moore, 10 Cr. A. R. 54, 1914. On the other hand, in Bedingfield, 14 Cox C. C. 341, 1879, where a woman came from a house with her throat cut, it was proposed to ask what she said; but Cockburn C.J. said: Anything uttered by the deceased at the time the act was being done would be admissible, as for instance, if she had been heard to say something, as 'Don't, Harry.' But here it was something stated by her after it was all over, whatever it was, and after the act was completed.' This decision gave rise to some discussion, of which a note will be found in the report above; it has generally. been thought that Cockburn C.J. applied the rule too strictly: Phips. 47; whether that ruling was correct depends on the question whether it is to be taken as a fact, that the transaction was entirely at an end. See letter of Cockburn C.J., cited below, and cf. the facts in Christie, 1914. Phips. 44-6 states the general rule thus: 'Acts, declarations and incidents which constitute or accompany and explain the fact or transaction in issue are admissible for or against either

party as forming parts of the res gesta': the main conditions' being that the matters tendered should form the natural incidents of the act, .. substantially contemporaneous with it and qualify, explain or complete it in some material respect.' Thus, when there were two indictments for two murders at practically the same time, on the trial of one, evidence of the other was admitted (owing to the nature of the defence): Greenley, 10 Cr. A. R. 273, 1914.

The rule against hearsay evidence generally operates in favour of the accused; it cannot be relaxed when it tells against him: Thomson, 1912, 3 K. B. 19; 81 L. J. K. B. 892; 76 J. P. 431; 23 Cox C. C. 187; 28 T. L. R. 478; 107 L. T. 454; 7 Cr. A. R. 279, approving Gloster, 1888; use of an illegal instrument; deceased's statement five days before her death, which was quite unconnected with the charge, that she had done it herself,' to a witness (whom counsel was not allowed to cross-examine thereon) was inadmissible and was not part of the res gestae.

Early complaint by females in sexual cases] The evidence which is almost always given in such cases that the female made an early complaint, out of the hearing of defendant, of having been attacked, is not hearsay, but original evidence of a fact, which is most important,, and which cannot be ascertained in any other way. There has been considerable difference of opinion among judges on the admissibility of the details of the complaint, but it has now been decided by the C. C. C. R. that in cases of rape, indecent assault and similar offences. upon females [but not in civil cases], the fact that the prosecutrix made a complaint shortly after the outrage, of the matters charged against the prisoner, together with the particulars of the complaint, are admissible as evidence in chief for the prosecution, not to prove the truth of the matters stated, but (1) to confirm her testimony and (2) where consent is in issue, to disprove consent': Phips. p. 99, citing Lillyman, 1896, 2 Q. B. 167; 65 L. J. M. C. 195; 18 Cox C. C. 346; and Osborne, 1905, 1 K. B. 551; 74 L. J. K. B. 311; 69 J. P. 189; 21 T. L. R. 288; 92 L. T. 393. It was laid down in the former by Hawkins J., who delivered the judgment of five judges, that it is the duty of the judge to impress on the jury in every case that they are not entitled to make use of the complaint as any evidence whatever' of the facts complained of, or for any other purpose' than that of enabling them to judge for themselves whether the conduct of the woman was consistent with her testimony on oath and even in the witness-box, negativing her consent, and affirming that the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman in the circumstances detailed by her.' But the precise scope of this decision is. however, still far from clear; opinions differing whether (a) the details or even (b) the mere fact of the complaint will now be admissible in all crimes, or only in offences against the person, or still more probably even only in sexual ones (Osborne), or perhaps only in sexual ones against females': cf. Norton, 1910. Kenny, Outlines of Criminal Law, p. 367 (1917). See, generally, under Rape. Lillyman and those cases which followed it,' viz., Osborne, &c., were accepted by Haldane C. and, apparently, by the H. L.: Christie, 9 Cr. A. R. 154; neither of these two cases has been criticised by the C. C. A. 'Perhaps 'the complaint must not be written: Ingrey, 64 J. P. 106, 1900; Kenny, ib., who cites Wright J. as refusing, in 1900, a letter written four hours after offence, though he did not rule it inadmissible.

The complaint must be volunteered, and not in answer to questions. Merry, 19 Cox C. C. 442, 1900. But this was qualified and restricted to suggestive or leading' questions in Osborne, above, which reviews previous cases, including Kingham, 66 J. P. 393, 1902, and Kiddle, 19 Cox C. C. 77, 1898, indecent assault, where the complaint was not at the earliest opportunity, but was admitted; and shows that Lillyman is to be followed, even where consent is immaterial. In Kiddle the child was not sworn. Pressure by a proper person (e.g., a mother) to state the cause of visible mental disturbance does not invalidate the answer: Norcott, 12 Cr. A. R. 166, 1916.

Complaint in other cases] 'It is now settled that such evidence is admissible only in cases of rape and kindred offences against females These cases

and not, e.g., in sexual charges against men. overrule' Wink, 6 C. & P. 397, 1834, robbery; and Ridsdale, Stark. Ev. 4th ed. 469 n., 1837, shooting, and other cases: Phips. 99. 'These cases' mean Osborne and Hoodless, 64 J. P. 282, 1900, indecency with a male; Q. S. rejected the complaint. But the New Zealand C. A. (four judges) thought that the principles in cases of females equally applied in those of males (and two judges thought that they should be extended to all complaints of personal injury) provided that the complaints were spontaneous and only used to corroborate deponent's credibility: McNamara, 36 N. Z. R. 382, 1917, unnatural offence on a boy; conviction affirmed.

Foster, 6 C. & P. 325, 1834, was charged with manslaughter. A waggoner was called, who stated that immediately after the accident he went up to the deceased, who was groaning, and asked him, in the absence of defendant, 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 Park J. said that it was the best possible testimony that, in the circumstances, could be adduced to show what it was that had knocked the deceased down'; and that Aveson v. Lord Kinnaird bore strongly upon the point; two other judges concurring. There L. Ellenborough said of a husband's action against an adulterer, 'If she declared at the time that she fled from immediate terror of personal violence from the husband, I should admit the evidence,' citing Thompson v. Trevanion, Skin. 402, 1693, where, in an action for wounding the wife, Holt C.J. 'allowed what the wife said immediaté upon the hurt received, and before that she had time to devise or contrive anything for her own advantage, might be given in evidence.' The controversy is now closed, in the sense indicated by Phips. above (and dealt with at length). The older cases are discussed in the correspondence between Cockburn C.J. and Mr. John Pitt Taylor, consisting of a letter in the Times newspaper of Nov. 17, 1879, the reply of the Chief Justice, in which he defended his ruling in Bedingfield (London: Vacher & Sons, 1879), and Mr. Taylor's answer (London: Maxwell & Son, 1880).

Exceptions] There are a considerable number of exceptions to the rule, which appear to be founded partly on the principle of necessityhearsay being sometimes almost the only kind of evidence which is available-and partly on the statement, of which evidence is given, having been made in circumstances which render its being false highly improbable. They may be conveniently divided into the following heads:-1. Evidence which has already been given in judicial proceedings, and which cannot be obtained from the original source.

2. Statements contained in ancient documents on the subject of ancient possession. 3. Statements of deceased persons on questions of pedigree. 4. Evidence of reputation on questions of public or general right. 5. Statements of deceased persons against their own interest. 6. Statements of deceased persons in the form of entries, &c., in the regular course of their duty or employment. 7. Statements having reference to the health or sufferings of the person who makes them. 8. Dying declarations. Of these only some need further notice.

1. See for such oral evidence, Depositions.

2-5. Evidence under these four heads seems to be unknown in criminal cases (and almost under No. 6)-the few sometimes cited, e.g., Inhabs. of Sourton, 5 A. & E. 180, 1836; Inhabs. of Rishworth, 2 Q. B. 467, 1842; settlement: Bliss, 7 A. & E. 550; 7 L. J. Q. B., 1837; Inhabs. of Milton, 1 C. & K. 58, 1843; Berger, 1894, 1 Q. B. 823: highway (criticised A.-G. v. Horner, 1913, 2 Ch. at 155)—being only criminal in form. The subjects of these and No. 6 are amply discussed by Phips. cc. viii. and xxii.-xxvi.

6. See last paragraph. Declarations, oral or written, made by deceased persons in the ordinary course of duty, contemporaneously with the facts stated and without motive to misrepresent, are admissible in proof of their contents: Phips. c. xxiv.

6

Defendant had been convicted of larceny in November, 1872, on the evidence of Green, a constable, and after a month's imprisonment had been heard to mutter threats of vengeance against the latter. On Feb. 26th G.'s dead body was found full of wounds in a canal some distance from a spot on his beat, which included defendant's abode and might be on the way to it' on Feb. 24th; where he was last seen alive (not on duty, soon after dark). On that day he had accidentally met his inspector alone, and made a statement to him--as constables at times' did, only orally. Giffard Q.C., for the Crown, asked what the report was: Bowen Q.C., for defendant, objected. Lush J. thought that it was admissible, and consulted Mellor J., who had no doubt at all, and it was received: it was that defendant was thieving again' and that G. 'intended to watch his movements that night alone, about dusk': not guilty. Buckley, 13 Cox C. C. 293, 1873. But this decision has been doubted by so good an authority as the late W. F. Craies, 2 Russ. Cri. 2096 (7th ed., 1909: more strongly than 6th ed., 1896, p. 386), who says: This ruling can apparently be justified, if at all, only on the ground that the report was officially made in the course of the duty of the deceased': and by Phips. p. 272, who says: It seems doubtful whether declarations as to acts to be done are admissible: they were . . . rejected in Rowlands v. De Vecchi, 1 Cab. & E. 10 [1882], and the principle of the . . cases' which he cites 'would seem to exclude future acts.' On p. 67 he remarks: 'No reasons are given; and the statement may have been received' as part of the res gesta. In Rowlands v. De Vecchi, Day J. refused to receive a postage book in which it was the duty of a deceased office boy to enter all letters given to him to post, on the ground that the book would only show the letters to be posted, and-even when plaintiff's clerk proved that on the day plaintiff swore he wrote the letter a letter from plaintiff to defendant was read over to him, a copy was taken, the letter was placed in an envelope directed to defendant, was given with others to the deceased to post, he (witness) and the deceased