Complaint in rape. Declarations accompanying possession. which is very short and loose, it may perhaps be presumed, that the wife had related the particulars of the assault: and in R. v. Foster, (1) it was held by Gurney, B., and Park, J., that what a deceased person had said immediately upon receiving a fatal injury, as to the cause of the injury, was admissible evidence. It may be observed, that these cases differ from those which have been decided respecting the statement of a patient's complaint; for statements of the latter description would not, it is conceived, depend, for their admissibility, upon the time when the injury was received. In prosecutions for rape, though it has been regarded as admissible evidence, on the part of the prosecution, and is generally considered essential, to show that the prosecutrix made a complaint recently after the commission of the alleged crime; (2) yet it has been held, that the particulars of the complaint are not evidence of the truth of the statement. (3) It is now the general practice to exclude any mention of the details of the complaint. In case of the death of the party injured, or in case of her absence for any cause, the particulars of her complaint, stated in the absence of the prisoner, could, under no circumstances, be received; which shows that such statements are not regarded as part of the res gesta. (4) This further appears from the consideration, that what is deemed a recent complaint depends on various circumstances, and especially on the opportunity of communicating with female relations. Declarations of persons in possession of property have, in immediately after the offence was committed, cum clamore et hutesio, 1 Hale's P. C. 632. Barrington notices that certain periods, within which complaint was to be made, were limited by the laws of several countries. Observations on the Statutes, p. 125. (3) R. v. Clarke, 2 Stark. C. 242. (4) It seems formerly to have been considered, that the narrative of an infant presently after the wrong done, was receivable in evidence. See the authorities in L East's P. C. 441. some cases, been received as original evidence, explanatory of the nature of their possession. Thus, the declaration of a widow, in possession of certain premises, that she held them for life, and that after her death they would go to the heirs of the husband, have been held admissible, to negative the fact of her having had twenty years' adverse possession; but it seems to be now considered, that such declarations are not evidence, unless they are against the interest of the person making them.(1) claration. On a question of legitimacy, the declaration of a lady, whose Possession inmarriage was in question, that a certain box contained her ferred from demarriage certificate, was, after objection, received both by Chief Justice Dallas and Lord Tenterden, C. J., as evidence, that she was then in possession of a document of a particular description. (2) Here the fact of possession was inferred from the declaration, which was not merely explanatory of a known possession. The original evidence of verbal or written matters, which has been here considered, is often said to be admissible, as constituting a part of the res gesta. In several of the examples above given, the words or writings are in themselves independent transactions, yet in some, they are the ultimate facts of inquiry, not necessarily connected with any act done; in others, they are receivable as the natural and immediate result of particular situations, impulses, or feelings. (3) (1) Doe v. Pettet, 5 B. & A. 224. Doe v. Richarly, 5 Esp. 4, was a case decided apparently on the principle mentioned in the text. There the declarations of a person, found in possession of premises, that he rented them, were held to be evidence of an underletting. The case is opposed by a conflicting decision, Doe v. Payne, 1 Stark. C. 86. See 4 Taunt. 766. Doe v. Williams, 6 B. & C. 41. Doe d. Sweetland v. Webber, 1 Ad. & Ell. 738. It is difficult to distinguish the class of cases under consideration, from a numerous class of cases in which declarations of deceased persons against interest are admissible. Carne v. Nicoll, (2) Bere v. Ward, printed report of (3) The nature of those words or Original decla rations not part of the res gesta. Original declarations part of the res gesta. Fraudulent Envelope. Words and writings appear, perhaps, more properly to be admissible as part of the res gesta, when they accompany some act, the nature and object or motives of which are the subject of inquiry. In such cases, words are receivable as original evidence, on the ground that what is said at the time affords legitimate, if not the best, means of ascertaining the character of such equivocal acts as admit of explanation, from those indications of the mind, which language affords. For where words or writings accompany an act, as well as in the instances before considered where they indicate the state of a person's feelings or bodily sufferings, they derive their credit from the surrounding circumstances, and not from the bare expressions of the declarant. And the language of persons at or about the time of their doing a particular act, in the same manner as their demeanor or gesture, is more likely to be a true disclosure of what was really passing in their minds, than their subsequent statements as to their intentions, even if such statements would not be excluded on other grounds. Thus, in an action on the case for fraudulently representing representation. the solvency of a person, whereby the plaintiffs trusted him with goods, their declarations at the time they were applied to for the goods, are admissible, to show that they gave trust in consequence of the representation. (1) A letter, being the envelope of a promissory note, has been admitted to show for what purpose it was sent. (2) In an action for criDeclarations of minal conversation, where the defence was, that the plaintiff had connived at his wife's elopement, evidence was received on the part of the plaintiff of the wife's declarations as to her intentions and purposes in going. (3) And in Aveson wife. writings which are facts in them- (1) Fellowes v. Williamson, 1 M. time of delivering goods, to shew ment. (2) Bruce v. Hurley, 1 Stark. 24. The plaintiff's own letter was admitted for himself, to shew that the note had been sent to procure payment, the question being, whether it was in a bankrupt's possession for a special purpose only. (3) Hoare v. Allen, 3 Esp. 276. v. Lord Kinnaird, (1) Lord Ellenborough observed, that if a wife, upon quitting her husband's home, declared at the time that she fled from immediate terror of personal violence, he should admit the evidence; though not, if it were a collateral declaration of some matter which happened at another time. In an action against a sheriff for a false return, where the de- Fraudulent fence was a fraudulent bill of sale, declarations by the conveyance. party executing the bill of sale, made by him at the time of execution, were held to be admissible, but not those made at another time. (2) Where a trader, being in embarrassed circumstances, executed an assignment for the benefit of his creditors, it was held, in an action after his death against the assignee, treating him as executor de son tort, that a list of creditors made out about the time of the execution of the assignment, by the direction of the assignor, was evidence as part of the transaction for the purpose of disproving fraud. (3) Upon questions of bankruptcy, where the intentions of the Bankruptcy. The evidence was doubtingly admitted. The wife represented that she was only going to her uncle's house, and the husband suffered her to go under that impression. (1) 6 East, 188. And see Walter v. Green, 1 C. & P. 621. Confession by a wife of adultery immediately previous to being turned out of doors; and letters found in her writing desk. (2) Philips v. Eamer, 1 Esp. 357. For other examples of the res geste principle, see Penn v. Scholey, 5 Esp. 243. An affidavit to explain an execution on a judgment. Bebb v. Thomas, 2 W. Bl. 1043. Contemporary declarations, explaining equivocal act of cancelling a will. Irving v. Greenwood, 1 C. & P. 350. Action for breach of promise of marriage, evidence of parent's disapproval and reasons assigned for it. Tilk v. Parsons, 2 C. & P. 201. Reasons assigned by third persons not allowed to be given in evidence. Ashley v. Harrison, 1 Esp. 50, S. P. Rex v. Whitehead, I C. & P. 69; letters of person indicted for a conspiracy, shewing that he 91. (3) Lewis v. Rogers, 1 Cr. M. & R. 48. Tyr. 872. And see Prideaux v. Collier, 2 Str. 57. Declarations by a drawee on presentment of a bill. Ryle v. Haggie, 1 Jac. & W. 234; declarations as to property being parted with by way of gift. Buying and selling. Preference. Time of declaration. alleged bankrupt are often material to be inquired into, it is usual to give evidence of declarations, as furnishing an explanation of transactions in their nature equivocal. (1) Thus it has been held, that a declaration accompanying a purchase of goods is admissible evidence, to show whether a person sought his living by buying and selling. (2) Similar evidence has been received to explain a bankrupt's motives, where a payment made by him is sought to be invalidated as a fraudulent preference. Upon such a question, it is competent to inquire into the bankrupt's declarations as to the state of his affairs, made about the time of the transaction in question, though not accompanying or connected with that transaction. (3) And it is very common to give evidence of conversations and letters, in order to explain acts, which, according to the intentions of the party at the time, may or may not amount to acts of bankruptcy. (4) Much discussion has arisen with respect to the limits of time, with reference to the date of the transactions insisted upon as an act of bankruptcy, within which the declarations of the alledged bankrupt ought to be proved to have been made, in order to be received in evidence. It is a question for the Court, in each case, to consider, whether the declaration, proposed to be received, does or does not come within a reasonable time of the disputed act: and, for this purpose, the Court will inquire into (1) Questions on this subject are to be distinguished from numerous questions respecting the reception of admissions of bankrupts concerning their trading, or the petitioning creditor's debt, and which are not explanatory of any co-existing motives. Parker v. Barker, 1 Br. & B. 9. Bromley v. King, R. & M. 228. Respecting admissions of trading made before bankruptcy. Smallcombe v. Bruges, M'Clel. 45. Sanderson v. Laforest, 1 C. & P. 46, respecting admissions of petitioning creditor's debt, and vide infra, the chapter on admissions. 58. (2) Gale v. Halfknight, 3 Stark. (3) Vacher v. Cocks, 1 M. & M. 353. Herbert v. Wilcocks, 1 M. & M. 355, n. That the intention upon such a question is material, see Cook v. Rogers, 7 Bing. 438. Harman v. Fisher, Cowper, 117. Letters inclosing bills to a favored creditor. Guthrie v. Crossley, 2 C. & P. 301. Questions and answers in the absence of the favored creditor. (4) B. N. P. 40. Robson v. Rolls, 9 Bing. 349, to explain act of absenting. That the bankrupt cannot be called to explain an act affecting his commission. Jayer v. Garnet, 7 Bing. 103. |