mony; (3) that witness must be dead, or out of jurisdiction, or insane, or kept out of the way by the adverse party, or be where he cannot be found.

In criminal cases the scope of the exception is more narrowly conditioned.

In such cases the former and latter trials must relate to the same crime, and be against the same person, who must have had the right and opportunity to cross-examine the witness when he gave the reported testimony, and such witness must be dead, or insane, or kept out of the way by the accused.

Under this exception the question whether the reported testimony must be given verbatim or only in substance, is one upon which courts have differed, but the increasing usage of taking all oral testimony stenographically makes this question of less importance year by year. As the reported evidence offered under this exception is given under the sanction of an oath and subject to cross-examination, it hardly comes within the reason of the hearsay rule at all. In recent years, by some courts and legislatures, this exception has been enlarged so as to include preliminary investigations of divers kinds, arbitrations, and other like proceedings, where testimony is given upon oath, and there is given the right and opportunity of cross-examination.

Another exception to the hearsay rule exists in reference to statements or declarations falling under the so-called "res gesta" rule.

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Res gesta.

The phrase res gestæ seems to have come into use on account of its convenient obscurity."1 Very many statements, accompanying an act or conduct, are admitted, not in proof of the facts asserted in such statements, but because the import of the act or conduct, without the statement, is ambiguous, and the statement shows the real nature and character of the act or conduct.

In such cases the statement is said to form a part of the res gesta, that is, part of the act or conduct, and as such is admissible when the act or conduct is itself admissible.

1 Stephen's Evidence (Chase, 2d ed.), 356, note.

The admission of such statements, however, forms no exception to the hearsay rule, as has been clearly shown by Professor Thayer in his Cases on Evidence, and by Professor Wigmore in the sixteenth edition of Greenleaf on Evidence.

It is only where such statements are admitted in proof of the facts asserted in them that the admission of them as evidence forms an exception to the hearsay rule.

This exception in this particular form is of quite modern origin, and as no satisfactory test has yet been agreed upon for determining what declarations fall within it, the application, in particular cases, of the rule embodied in the exception, is attended with great difficulty. Until the conditions of admissibility in this class of cases have been more definitely determined, the decisions upon this matter in the future, as in the past, will be conflicting and inharmonious.

The last exception to the hearsay rule, that it is deemed necessary to note, is of statutory origin.

Under statutes differing in form and in detail, passed in nearly all of the States, the declarations oral or written of Declarations a party to a controversy are, after his death, made admissible in suits brought by or against

of the dead.

his representatives.

When, as was formerly the case, neither party to a controversy could testify in his own behalf, the death of one gave to the other no special advantage with respect to giving testimony; but when about the middle of the nineteenth century parties in civil causes became competent witnesses in their own behalf, the death of one gave to the survivor with respect to evidence quite an advantage.

To remedy this as far as possible legislation, in the main, has either made the survivor more or less incompetent to testify in such cases, or it has let in relevant hearsay declarations of the deceased, or it has done both.

The law admitting such declarations forms a clear exception to the hearsay rule.

The foregoing are the principal exceptions to the general rule excluding hearsay, and they, with their numerous sub

sidiary rules, form a large and important part of the law of evidence.

The next general rule of exclusion is that which shuts out "opinion evidence.'

Opinions.

A witness may know a fact directly, or only indirectly, by way of inference. In the legal sense, knowledge of a fact by way of inference is an opinion.

It is the province of the jury to draw inferences of fact, and as they are deemed capable of doing so in ordinary cases, it would be a waste of time to listen to the opinions of witnesses in such cases. This is in the main the reason for excluding opinion evidence.

Experts.

To this general rule there may be said to be two exceptions, both based upon the inability of the jury to draw inferences either at all or as well, without the aid of opinion evidence. These exceptions may be stated thus: (1) in cases involving what are somewhat vaguely called "questions of science and art," the opinions of "experts SOcalled are admissible to aid the jury in coming to a conclusion upon such questions. Questions of this kind are involved in all matters upon which the ordinary juryman would be unable to form a correct opinion, without a course of special study or experience in connection with such matters: (2) in many, if not in most of the States, the opinions of non-experts are admissible upon questions of sanity, handwriting, value of property, and other matters of a like nature; provided that the facts upon which such opinions are based are personally known to the non-expert witness and are detailed by him to the jury.

Non-experts.

The general rule excluding opinion evidence is as old as the hearsay rule, and, in outline at least, the exceptions to it are nearly as old as the rule itself; but the numerous subsidiary rules which govern the production of opinion evidence to-day under these exceptions are of quite modern origin.

For the purposes of this volume it is unnecessary to consider these subsidiary rules.

The third general rule of exclusion is that which shuts out evidence of the "character" of the parties Character. to the litigation, as evidence of their acts or

conduct.

Within this rule "character" usually means "reputed character," as distinguished from real character or disposition; or it may mean disposition as proved by reputation. In either sense the rule forbids the reception of evidence of the character of the parties to the litigation, in proof of their acts or conduct.

The word "party" within this rule includes persons not technically parties, whose conduct may be involved in the trial of the case, as the woman in trials for rape, the deceased in trials for homicide, and the like.

To this general rule there are a few exceptions, some real and some only apparent, the principal of which are the following: (1) in criminal cases the accused may give evidence of his good character and is entitled to have it considered as bearing on the probability of his innocence; and when and after he does this, and not before, the State may offer evidence of his bad character; (2) in prosecutions for rape the woman's character for chastity is admissible as bearing on the probability of her consent; (3) in trials for homicide where self-defence is the issue, and the question is whether the deceased was the aggressor, his character as a violent and quarrelsome person is admissible; this is an exception of quite recent origin and does not prevail universally; (4) the character of the plaintiff in an action for malicious prosecution may be given in evidence as bearing upon the question of the existence or want of probable cause where that question is in issue; (5) in civil cases where character is one of the facts in issue, of course it may be proved; (6) in certain cases where damages are sought for injury done to the plaintiff's character, the bad character of the plaintiff may be shown; (7) of course in such cases, after it has been attacked, the plaintiff may give evidence of good character; (8) in actions by a servant against his employer for injury caused

by an incompetent fellow-servant, the reputation of the latter for incompetency may be shown.

Connected with these exceptions are a number of subsidiary rules quite modern in their origin, which it is not necessary to notice further.

Another rule of exclusion limited in its scope and operation is that which shuts out "confessions " unless they are made voluntarily.

Confessions.

A confession is an oral or written admission of guilt made by a person accused of a crime, and if made under the influence of threats or promises of a certain kind it is not regarded as a "voluntary" one, and will not be received in evidence. Around this general rule there has grown up quite a number of subsidiary rules, of a very artificial nature, that are applied in determining whether the confession is or is not a voluntary one, but these need not here be stated.

They are nearly all of them of comparatively modern origin. At the present time the trend of development in this part of the law is away from these artificial rules, and towards others founded solely in reason and good sense.

In addition to the foregoing rules of exclusion there are certain general principles, rather than specific rules, under which the court, in the exercise of its discretion, Discretion guided largely by precedent and common sense, may exclude matter in itself logically probative.

of the court.

Thus the court in its discretion may exclude such matter, if it would be likely (1) to mislead the jury or to be misused by it; or (2) to prejudice a party; or (3) to complicate the case or prolong the trial unnecessarily; or (4) if it is of slight, remote, or merely conjectural significance.1

Under the influence of such principles and of precedents, specific rules of exclusion come into existence from time to time which limit and control the discretion of the court in matters of this kind. Thus in criminal trials, the State is

1 Thayer's Cases on Evidence (2d ed.), 220.