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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



CASES



ON



THE LAW OF EVIDENCE



SELECTED AND AEEANGED



BY



THOMAS WELBURN HUGHES

PROFESSOR OF LAW. WASHBURJ^ COLLEGE
TOPE K A. KAN.



CALLAGHAN & COMPANY
CHICAGO

1921



T



COPYRIGHT 1921

BY
CALLAGHAN & COMPANY



PREFACE.

By the case method of instruction the student acquires a knowledge
not only of the rules and principles of the law, but also of their ap-
plication to particular facts; and the latter is quite as important as
the former.

The chief criticism of this method of instruction is that too much
ground has to be covered for the amount of knowledge acquired.
This criticism applies with greater force to long cases. In the present
volume the cases are short and confined to the points of Evidence
involved. All matter contained in the reported cases not pertaining
to Evidence has been eliminated.

Nearly all of the cases in this volume are American cases ; and
most of them have been recently decided. These features, it is be-
lieved, will be appreciated both by teachers and students.

Many of the cases contained herein contain brief discussions of
English cases which enable the student to acquire a knowledge of
the origin and historical development of the various rules and prin-
ciples of Evidence and their exceptions.

Some topics in the law of Evidence require more extended dis-
cussion than others. Thus, the Rule against Hearsay and its excep-
tions, the Best Evidence Rule and the Parol Evidence Rule require
extended discussion. Owing to this fact many cases herein pertain
to these topics.

To the trial lawyer Evidence is the most important subject in the
law curriculum. It is the one subject that he must have at the tip
of his tongue. It comprises many rules and exceptions and should
be taught in law schools for at least five hours a week for one semester.

T. W. HUGHES.



TABLE OF CONTENTS

PART I

PAGE

Province of the Court and the Jury I

PART II

WITNESSES

Competency 16

Privileged Communications 42

Examination of Witnesses 77

PART III

PRINCIPLES AND RULES OF EXCLUSION

Relevancy and Materiality 144

Character 156

Admissions and Confessions 175

The Rule Against Hearsay 190

Former Evidence 193

Dying Declarations 210

Declarations Relating To Pedigree 237

Declarations Against Interest By Persons Since Deceased .... 277

Declarations Relating To Public and General Interests 301

Public and Ancient Documents 311

Account Book Entries 321

Declarations In Regular Course of Business 365

Declarations Forming Part of, Or Relating To, The Res Gestae. 373

Opinion Evidence 453

Res Inter Alios 490

Telegrams and Conversations By Telephone 503

Joint Crime and One Acquitted 515



vi CASES ON EVIDENCE

PART IV

PAGE

Real Evidence 519

PART V

DOCUMENTARY EVIDENCE

Alterations 550

The Best Evidence Rule 587

The Parol Evidence Rule 673

PART VI
Weight and Sufficiency 826

PART VII

TOPICS NOT PECULIAR TO EVIDENCE

Judicial Notice 854

Presumptions 880

Burden of Proof 893



Cases On Evidence



PART I.
PROVINCE OF THE COURT AND OF THE JURY. 1

ALFRED FATRBANK v. B. HUGHSON.
58 Col. 314. (1881)

A

Appeal from a judgment for the defendant and from an order
denying a new trial in the Superior Court of San Joaquin County.

McKEE, J. The principal issue in this case involved the genuine-
ness of the signature of the defendant to the instrument in writing
upon which the plaintiff sought to recover in the action.

On the trial of the issue the plaintiff put in evidence eight receipts
which were admitted to have been signed by the defendant, and called
a number of witnesses to testify as to the genuineness of the paper
sued on, by comparison with the signatures of the receipts. In reply
to which the defendant called one W. H. Taylor as an expert in hand-
writing, who, being examined as to his qualifications, testified that he
had been a book-keeper for eight years in two banks in the city of
Stockton. In that capacity he had examined signatures and writings
more or less, although his business did not require him especially to
examine them, and, as he was only a book-keeper, and had not been
called upon to examine signatures, he did not consider himself to be
an expert. Counsel for plaintiff thereupon objected to his testimony
on the ground that he was not an expert.

The Court. "I shall hold it is for the jury to say how much he
knows about it. I will admit the testimony."

i Hughes on Evidence, p. 26.

(I)



2 CASES ON EVIDENCE

This was error. Whether one offered as an expert is qualified to
speak as such, is a fact preliminary ta his testifying as such, to be
determined by the court at the trial. It cannot be referred to the
jury. (Jones v. Tucker, 41 N. H. 546.)

Judgment and order reversed and cause remanded for a new trial.

Ross, J. and McKiNSTRY, J., concurred.



HIGGINBOTHAM, executor, v. CAMPBELL.
85 Ga. 639. (1890)

New trial. Charge of court. Fraud. Practice. Before Judge
Maddox. Floyd Superior Court. Sept. term, 1889.

BLECKLEY, Chief Justice. In this case, a deed of conveyance, made
by a mother to her son, was attacked as having been procured by the
son through fraud committed upon his mother. The object of the
attack was to set aside and cancel the deed. The jury found in favor
of the plaintiff. The court, on motion of the defendant, granted a
new trial, and the plaintiff excepted.

In the trial of civil cases, the responsibility for the law of the case
rests wholly upon the judge. The jury must take it from him, and as
he expounds it, with no concern on their part for the correctness or
incorrectness of his exposition. Instead of so instructing the jury,
the judge charged them that they were the judges of the law and
the facts which had been submitted to them. Whilst in one sense
this was not absolutely incorrect, for, in civil as well as criminal cases,
the jury apply the law to the facts, and exercise that degree of judg-
ment upon it which is necessarily involved in doing so; still, such
instructions, unattended with a caution to accept the law as announced
by the court, might be misleading. The jury could understand them
as implying the same functions on their part with reference to the
facts, and knowing that it was upon them to ascertain and settle
what the facts really were, they might think they had the same office
to perform touching the law. They might conclude that they were
to recognize as law that which they thought it was rather than that
which the judge said it was. It is true that the danger of such mis-
take was not imminent, but that it existed at all, by reason of an
inaccurate expression from the bench, might very properly render the
judge desirous of an opportunity to correct it on a future trial,



PROVINCE OF THE COURT AND OF THE JURY 3

especially if he had any doubt of the correctness of the verdict, in so
far as it involved elements of law as distinguished from matters of
fact.

Judgment affirmed.



AGNES CAIRNS, executrix, v. JOHN MOONEY.
62 yt. 172. (1890)

Action, assumpsit. Plea, the general issue. Trial by jury, at the
September Term, 1889. Powers, J., presiding. Verdict and judg-
ment for the plaintiff. Exceptions by the defendant.

The plaintiff sued for the price of certain apples sold by her testator
to the defendant. The defendant claimed that the quality of the
apples was not according to the contract, and offered to so testify
himself. To his testimony the plaintiff objected, for that the other
party to the contract was dead. Thereupon the defendant insisted,
and his evidence tended to show, that the contract was not made with
the testator but with his son, acting as his agent. The court excluded
the evidence.

TAFT, J. The defendant was not a competent witness, "unless the
contract in issue was originally made with a person who is (was)
living and competent to testify." The defendant claimed that the
contract for the apples was made with Harvey Cairns, acting as
agent for the testate, and who was present at the trial and testified.
Conceding that the testimony of the defendant's witness tended to
establish the fact of agency, the question was one for the court. The
defendant insists that he should have been permitted to testify, and
the question of agency submitted to the jury, and if they found it
established, they should then consider the testimony of the defendant
upon the various points upon which he gave testimony, and if they
did not find the fact of agency proved, reject the testimony. It was a
question of competency or incompetency'of the defendant as a wit-
ness, and that question is always for the court, and should never be
submitted to the jury, i Green. Ev. (i4th Ed.) s. 49 and note a;
i Tay. Ev. s. 21; Bartlett v. Smith, 11 M. & W. 483; Reg. v. Hill,
5 Eng. L. & Eq. 547; Cook v. Mix, n Conn. 432; Holcomb v. Hoi-
comb. 28 Conn. 177; Harris v. Wilson, 7 Wend. 57; Reynolds v.
Lounsbury, 6 Hill 534; Dole v. Winslow, 12 Met. 157; McManagil



4 CASES ON EVIDENCE

v. Ross, 20 Pick, 99. In some jurisdictions it has been held that,
in doubtful cases, it is not improper to refer the existence of the facts
upon which the competency depends to the jury; and, in some in-
stances, it is intimated that it should be done. Hartford F t Ins. v.
Reynolds, $5 Mich. 502; Johnson v. Kendall, 20 N. H. 304; Bartlett
v. Hoyt, 33 N. H. 151; Dart v. Heilner, 3 Rawle, 407; Gordon v.
Boivens, 16 Penn. St. 226; Haynes v. Hemsicker, 26 Penn. St. 58.

Questions of fact affecting the admissibility of testimony often
arise, and it would be very inconvenient, if not impracticable, to sub-
mit them to the decision of a jury. The testimony as to the com-
petency of a witness, and that of the witness as to the issues upon
trial, would all go to the jury with directions that if they found the
witness incompetent, it would be their duty to disregard his evidence
upon the main issues, which in many instances it might be impossible
to do. Having heard the illegal testimony discussed by counsel, the
confusion which would probably arise in separating the legal from
illegitimate testimony would no doubt lead to the rendition of erro-
neous verdicts, with no relief for the unfortunate party; and cer-
tainly this should not be the rule in a jurisdiction where the admission
of illegal evidence is not cured by a direction from the court to
disregard it. State v. Hopkins, 50 Vt. 316; State v. Meader, 54 Vt.
126; Hall v. Jones, 55 Vt. 297; Rob. Dig. 700, pi. 55.

In Cook v. Mix, supra, the question was whether the witness had
an interest in the event of the suit and the court said it "was a ques-
tion of fact to be determined on the evidence before the court. It is
claimed in the first place, that the judge mistook the law in not sub-
mitting this question to the jury, and this claim has been gravely
urged before this court. It is sufficient to observe that the claim is
unfounded as it is novel, that it has no support either in principle or
authority, and is utterly incapable of being reduced to practice."

It is not by any means true that all questions of fact in a jury
trial must be left to the jury; numerous instances where the court
passes upon such questions can be readily called to mind, e. g., whether
a witness is an expert; or a dying declarant entertained hopes of
recovery; or a writing to be used as a test in comparison of hand-
writing is proved ; or a witness has sufficient mental capacity to tes-
tify, or is the husband or wife of the party; or declarations are so
far a part of the res gestae as to be admissible; or a confession was
induced by threats; or a document has been duly or sufficiently
stamped; or sufficient search has been made for a lost document to
warrant the introduction of secondary evidence. Many other instances



PROVINCE OF THE COURT AND OF THE JURY 5

might be given. In the beginning of a jury trial, suppose a woman
is offered as a witness for the plaintiff and the defendant objects
for that she is the wife of the plaintiff. The question is purely one
of fact. Will anyone claim that her testimony should be given upon
the main issues, and the question of whether wife or not be- left to
jury, and then if they find her to be the wife, discard her testimony,
but if not, consider it? Conceive that in a suit in favor of several
plaintiffs the question should arise in respect to each one. Well might
the Connecticut court characterize the claim of the defendant as un-
founded as it was novel. The c'ourt below not being satisfied from
the evidence that the contract in issue was made with the agent of the
testate, properly held the defendant incompetent.

Judgment affirmed.



COMMONWEALTH v. GEORGE A. CULVER et al.
126 Mass. 464. (1879)

Indictment on the Gen. Sts. c. 161, 12, charging the defendants
with breaking and entering, on March 27, 1876, the shop of George
M. Crawford, at Ayer, with intent to steal.

At the trial in the Superior Court, before Allen, J., the govern-
ment offered to prove confessions made by the defendant. The de-
fendants objected to their admission, on the ground that they were
made in consequence of offers of favor made to the defendants by the
officer who arrested the defendants and had them in custody ; that
these offers were carried to the defendants by request of the officer,
before the confessions were made ; and that the confessions were in-
duced by the offer.

At the suggestion of the judge, the government called as a wit-
ness the officer who made the arrest; and he denied that he made
any offers of favor to the defendants, or had caused any offers of
favor to be carried to the defendants by others. The defendants
then offered to call five different witnesses to prove the truth of their
claim, and asked the judge to hear them, and first to determine
whether the confesssions ought to be received. The judge declined
to admit the evidence at that stage of the case but admitted the con-
fessions.

The jury returned a verdict of guilty; and the defendants alleged
exceptions.



6 CASES ON EVIDENCE

LORD, J. The only question which this case presents is whether
it was error in the presiding judge to refuse to hear the evidence
offered by the defendants, at the time it was tendered, relating to
the inducements held out to the defendants for the purpose of ob-
taining the confessions offered in evidence by the government; and
we think it was. There is undoubtedly a large discretion vested in the
presiding justice at a trial, in reference to its conduct and to the
order of proofs. In this case, when the evidence was offered by the
government, it was objected to as incompetent. Its competency was
a question of law, and was to be decided by the court. Prime, -facie,
it was competent; but the defendants contended that it was incom-
petent by reason of certain extrinsic facts. It was for the defendants
to establish those facts, and it was the duty of the presiding judge
to ascertain whether they existed, before admitting the evidence. It
appears by the bill of exceptions, that, when the confessions of the
defendants were offered in evidence, they objected to such confes-
sions, upon the ground "that they were made in consequence of offers
of favor made to the defendants by the officer who arrested the
defendants and had them in custody." If this were true, and the
defendants could establish the fact, the confessions were incompetent
evidence. It was the duty of the presiding judge to determine that
fact, upon hearing all competent evidence upon it which was tendered
by either party. In the absence of all evidence, the presumption is
that a confession is voluntary; and when the party confessing objects
that confessions are not voluntary, he is called upon to show, at least
enough to rebut such presumption. Instead, however, of calling upon
the defendants thus to repel the presumption, the presiding judge
suggested that the officer be called by the district attorney; and he
was called and denied having made offers of favor to the defendants
to induce the confessions. The defendants then offered to call five
different witnesses to prove the truth of their claim. The court de-
clined to admit the testimony, "at that stage of the case, but ad-
mitted the confessions." That however, was the only stage of the
case at which the evidence could be admitted for the purpose for
which it was offered, to wit, to show that the proposed confessions
were incompetent.

We are aware that it is not an uncommon practice in the trial of
criminal causes, when confessions of a defendant are offered in evi-
dence, and objected to upon the ground that they were improperly
obtained, for the presiding judge to allow the confessions, and all
the evidence bearing upon the manner in which they were obtained,



PROVINCE OF THE COURT AND OP THE JURY 7

to be submitted to the jury, either to be rejected by the jury wholly,
or to be allowed such weight as under the circumstances the jury
deem it proper to give them. This, however, as we understand it, is
rather by consent than otherwise, neither party desiring to take the
decision of the presiding judge upon the question of competency.
There may be, however, and commonly are, two questions : first, the
competency of the evidence, and, secondly, the weight of the evi-
dence. The former is always a question of law, the latter is always a
question of fact. The prisoner has always the right to require of
the judge a decision of the competency of the evidence; and even
after the judge has decided the evidence to be competent, the pris-
oner has the right to ask of the jury to disregard it, and to give no
weight to it, because of the circumstances under which the confes-
sions were obtained. In the case at bar, however, the counsel for
the prisoners insisted upon their right to have the judge decide upon
the competency of the evidence, and tendered evidence of its incom-
petency; this evidence it was the duty of the presiding judge to hear.
The evidence having been tendered at a stage of the case in which
it was the duty of the defendants to offer it, and the presiding judge
.having refused to hear it at that time, the exception to his refusal to
hear it must be

Sustained.



EDWIN F. CONELY v. HENRIETTA McDONALD.
40 Mich. 750.

Appeal from an order of the Probate Court admitting to probate
an instrument purporting to be the last will of Firth A. McDonald.
The plaintiff in error was named as executor in this instrument, and
was designated by the Probate Court as the representative on the
appeal, of all the parties interested. The Circuit Court directed the
framing of an issue, and the plaintiff in error appeared as proponent
of the instrument, and alleged that it was the last will and testament
of Firth A. McDonald, and that at the time of its execution he pos-
sessed the necessary lawful qualifications to its due execution by him.
The appellant and contestant, who was the widow of McDonald,
pleaded the general issue with notice that she would show that the
instrument relied on was not her husband's last will; that its execu-



8 CASES ON EVIDENCE

tion was obtained by fraud and undue influence of Joel McDonald
and others; that Firth A. McDonald was of unsound mind and mem-
ory when he signed and executed it, and that its provisions were
contrary to the just and legal rights of the appellant. The jury found
that the instrument propounded was not the last will and testament
of Firth A. McDonald, and it was so adjudged. The proponent
Conely brought error.

MARSTON, J. Under the issues as framed in this case, evidence
tending to show undue influence was competent and admissible in
evidence. The court in charging the jury, being of opinion that upon
this branch the testimony did not tend to show undue influence, with-
drew that question from their consideration.

After the evidence was all in, counsel for proponent requested the
court to instruct the jury, ist, "There is no evidence in the case tend-
ing to show that the testator when he executed the will in controversy
was in any respect of unsound mind, and the jury are therefore
bound to assume that he was fully competent to make such a will;"
2nd, "Upon the whole case the verdict must be for the proponent."
These requests were refused and to the charge as given no exceptions
were taken.

It was not seriously disputed on the argument but that there was
testimony in the case tending to show that the testator did not have
sufficient capacity to make the will in question. It was, however,
urged very strenuously that there was not sufficient evidence, all of
which is returned, to sustain the verdict in this case, and conse-
quently that the second above request to charge should have been
given.

We' had supposed that the law was well settled in this State as
to the duty of the court under such circumstances. It is true the
question may not have been discussed at length, and the authorities
bearing thereon cited in any one particular case, but the question has
frequently been referred to and acted upon in cases where perhaps, at
least in some of them it was of minor importance. As the question
is one of importance in this case, and has been ably argued and au-
thorities cited, more especially the decisions of the English courts and
of the Supreme Court of the United States, it may be well to con-
sider the matter at some length and see what the true rule is or
should be in all such cases, and in the light thereof determine the
controversy in this case. In England the rule is laid down that a scin-
tilla of evidence clearly would not justify the judge in leaving the
case to the jury; that there must be evidence on which they might



PROVINCE OF THE COURT AND OF THE JURY 9

reasonably and properly conclude that the issue was proven. See
Ryder v. Wombell, Law Rep., 4 Exch., 38, where many of the cases
are collected and citations therefrom given.

In Hickman v. Jones, 9 Wall., 201, the court instructed the jury
to acquit the defendants. Swayne, J., said: "There was some evi-
dence against both of them. Whether it was sufficient to warrant
a verdict of guilty was a question for the jury under the instructions
of the court. The learned judge mingled the duty of the court and
jury, leaving the jury no discretion but to obey the direction of the
court. Where there is no evidence, or such a defect in it that the
law will not permit a verdict for the plaintiff to be given, such an
instruction may be properly demanded, and it is the duty of the court
to give it. To refuse is error. In this case the evidence was received
without objection, and was before the jury. It tended to maintain,
on the part of the plaintiff, the issue which they were to try. Whether
weak or strong, it was their right to pass upon it. It was not proper
for the court to wrest this part of the case, more than any other,
from the exercise of their judgment. The instruction given over-
looked the line which separates two separate spheres of duty. Though
correlative, they are distinct, and it is important to the right adminis-
tration of justice that they should be kept so. It is as much within
the province of the jury to decide questions of fact as of the court to
decide questions of law. The jury should take the law as laid down
by the court and give it full effect. But its application to the facts
and the facts themselves are for them to determine. These are the
checks and balances which give to the trial by jury its value. Ex-
perience has approved their importance. They are indispensable to
the harmony and proper efficacy of the system. Such is the law."

Assuming that the English rule as already stated, which was fol-
lowed and approved in Commissioner v. Clark, 94 U. S. 284, means
just what is said, that a scintilla of evidence would not justify the
judge in leaving the case to the jury, I can fully concur therein. Such
a rule would be no more than what has repeatedly been followed in
this state. In Kelly v. Hendrie, 26 Mich. 256, it was said: "If,
upon any point essential to a recovery, the evidence bearing on it is
open to but one meaning, and that meaning is plainly and neces-
sarily adverse to the plaintiff, then he has no ground of complaint"
if the court takes the case from the jury. There may be a "scintilla"
in other words a "spark" or "the least particle" of evidence in a case,
and yet fall far short of what is essential. It frequently happens on
the trial of a cause that proof of one fact has of itself a tendency to



io CASES ON EVIDENCE

prove others which are material and necessary to establish the cause



Online LibraryThomas Welburn HughesCases on the law of evidence → online text (page 1 of 91)