157 Mass. 180 | Mass. | 1892
The principal exception is to the refusal of the court to admit the testimony of Sarah L. Hubert. The exceptions recite:
“ Sarah L. Hubert, a witness called in behalf of the defendant, testified that her business, which she advertised in the newspapers, was that of a trance medium; that on December 22, 1891, in the forenoon, after ten o’clock, a young woman called at her place of business in Boston for consultation. There was sufficient evidence to go to the jury of her identification as Deltena J. Davis. Upon objection being made to the testimony*182 of this witness, counsel for the defendant stated to the court, aside from the jury, that they offered to prove by this witness that, at the interview on December 22, the young woman aforesaid stated to the witness that she was five months pregnant with child, and had come to consult as to what to do, and added later in the interview that she was going to drown herself. The court refused to admit the testimony, and the defendants duly excepted. . . .
“ The evidence offered in behalf of the Commonwealth was wholly circumstantial, and tended to show that on December 23, 1891, Deltena J. Davis left her home in Everett at about seven o’clock in the evening, and was last seen on the corner of Ferry Street and Broadway, which is near her home in said Everett, at about twenty-five minutes of eight the same evening. On January 10,1892, her dead body was found in the Mystic River, a short distance below the Wellington Bridge, about three miles from her home. There were no marks of violence on the body when found, nor was there any evidence that poison had been administered, nor did her clothing show any signs of violence. . . . The physicians called in behalf of the Commonwealth testified that the cause of death was drowning, and that, from the stage which digestion had reached, death occurred between two and a half and three and a half hours after the deceased had eaten her last meal. There was evidence that the deceased ate her supper about five o’clock on the evening of December 23, and that the partly digested food found in her stomach corresponded with that which it was testified she ate at that meal.
“ The deceased was unmarried, and at the time of her death was pregnant with, a male child, and was about five months advanced in the state of pregnancy. The defendant contended and argued, without objection, that all the evidence introduced in behalf of the Commonwealth was reasonably consistent with the theory that the deceased came to her death by suicide. There was evidence in the case tending to negative the circumstances relied upon by the Commonwealth, .and to support the theory of suicide.”
At the argument in this court, the Attorney General asked that, if the kind and amount of evidence tending to support the theory of suicide should be thought by the court to be impor
A few minor suggestions of the Attorney General may be briefly disposed of. There was evidence on the part of the Commonwealth that the deceased did not leave her home on the 22d of December until three o’clock in the afternoon, and that she returned home between eight and nine o’clock, and the Attorney General argues that “ this furnishes sufficient reason for the exclusion of the evidence ” offered, “ in the discretion of the court.” But the jury might have disbelieved this evidence of the Commonwealth, or, if they believed it, might also have believed that the deceased had the interview with Sarah L. Hubert in the afternoon rather than in the forenoon of December 22. The Attorney General also argues that “ the statement was so remote in point of time from the disappearance and death of Tena Davis, that it was in the discretion of the court to exclude it for this reason.”
When evidence of declarations of any person is offered for the purpose of showing the state of mind or intention of that person at the time the declarations were made, the declarations undoubtedly “ may be so remote in point of time, or so altered in import by subsequent change in the circumstances of the maker, as to be wholly immaterial, and wisely to be rejected by the judge.” Shailer v. Bumstead, 99 Mass. 112, 120. It has
This subject is considered in Commonwealth v. Abbott, 130 Mass. 472, and in the cases there cited. There is undoubtedly a discretion to be exercised, by the judge or judges presiding at the trial, in the admission or rejection of this kind of evidence, but it is not- an absolute discretion, and the exercise of it, when the facts appear, may be revised by this court. If the declaration, evidence of which was offered in the present case, had been made by the deceased two or three years before her death, when she was not pregnant with child, and did not know the defendant, it might well have been, held by the presiding judges to be of no significance in the case.
In the case at bar, the evidence offered was that the declaration of the deceased was made the day before her death, and was made in a conversation concerning her pregnancy, which continued until her death. The declaration, therefore, was not made at a time remote from the time of her death, and there had been no change of circumstances which made it inapplicable to the condition of the deceased at the time of her death. It was clearly competent for the jury to find, from the evidence recited in the exceptions, that, if Deltena J. Davis had an intention to commit suicide on December 22, she continued to have the same intention on December 23. If the evidence in its nature was admissible, the court, on the facts stated, could not exclude it on the ground that, from the lapse of time or change of circumstances, it had ceased to be material.
It ought to be said that there is nothing in the exceptions indicating that the presiding judges refused .to admit the evidence on the ground that it was in their discretion to admit or reject it. They probably considered the question presented as settled by the decision of this court in Commonwealth v. Felch, 132 Mass. 22.
The main argument of the Attorney General is, first, that it is immaterial whether the deceased, at or before the time of her death, had or had not an intention to commit suicide ; and, secondly, that, if she had such an intention, it could not be proved by evidence of her declarations that she was going to drown
If it could be shown that during the week before her death she had actually attempted to drown herself, and had been prevented from doing it, it seems manifest that this fact, according to the general experience of mankind, would have some tendency to show that she might have made a second attempt, and accomplished her purpose.
It may be true that an unmarried woman pregnant with child, if she has an intention to commit suicide, does not always carry that intention into effect, although she have an opportunity; but it is impossible to say that the actual existence of such an intention does not tend to throw some light upon the cause of death of such a woman when found dead under circumstances not inconsistent with the theory of suicide.
It is a question of more difficulty whether evidence of the declarations of the deceased can be admitted to show such an intention. The argument, in short, is that such evidence is hearsay. It is argued that such declarations are not made under the sanction of an oath, and that there is no opportunity to examine and cross-examine the person making them, so as to test his sincerity and truthfulness, or the accuracy and completeness with which the declarations describe his intention or state of mind, and that, even if such declarations would have some moral weight in the determination of the issue before the court, they are not within any of the exceptions to the exclusion of hearsay which the common law recognizes.
The counsel for the defendant concede that the declaration in this case is not, under our decisions, admissible as a part of what has been called the res gestee, although some courts have admitted similar declarations on this ground, and they also concede that, to make a declaration admissible on this ground, it must
The evidence that declarations were made must of course be of the same character as the evidence that the acts were doné; that is, both must be proved by the testimony of witnesses under oath, and subject to cross-examination, and in either case the examination may extend to all the circumstances which tend to show the significance of the declarations or of the acts as indications of the existing state of mind or intention of the speaker or actor.
The fundamental proposition is, that an intention in the mind of a person can only be shown by some external manifestation, which must be some look or appearance of the face or body, or some act or speech; and that proof of either or all of these for the sole purpose of showing state of mind or intention of the person is proof of a fact from which the state of mind or intention may be inferred.
For example, the exceptions recite that, on the day when the deceased disappeared, Trefethen called at the house of her mother
The only apparent object of this testimony was to show that on the day she disappeared she was happy, and therefore could not have contemplated suicide. Her bright and cheerful appear-anee might have been real or feigned, but that was for the jury. If the deceased at the same interview had said, “ I was never so happy in my life as I am to-day,” it is contended that this declaration might be as significant of her state of mind as her cheerful appearance, and that speaking, as an indication of what is in the mind of the speaker, is as much an act as smiling or conduct generally. The most obvious distinction between speech and conduct is that speech is often not only an indication of the existing state of mind of the speaker, but a statement of a fact external to the mind, and as evidence of that it is clearly hearsay. There is, of course, danger that a jury may not always observe this distinction, but that has not availed to exclude testimony which is admissible for one purpose, and not admissible for another to which there is danger the jury may apply it. A common instance of this is when it is a material fact in the case whether a person at a certain time said a certain thing. The testimony of a witness who heard him say it is always admitted, although this is not evidence that what that person said was true.
The present case discloses another instance. Many witnesses testified to conversations with the defendant about the disappearance of Tena Davis and his connection with it. What they said to him, and his silence or his replies, were only admissible so far as his failure to make reply, or his replies to what was said to him, under the circumstances, tended to show that he was guilty, but the testimony of what was said to him was not in and of itself evidence that the statements made to him were true.
Suppose that, at the interview between the deceased and the witness Hubert, if there was such an interview, the deceased had said that Trefethen was the father of her child; evidence that the deceased said this is clearly hearsay, and is not admis
If the day before her death she had written a note addressed to her mother, stating her condition and declaring her intention to drown herself, and had left it in her desk when she went from ■ home the following day, the admissibility of such a letter in evidence after proof that she had written it depends upon the same considerations as the admissibility of evidence of similar oral declarations. Such a written declaration differs from an oral declaration only in this, that writing is often a more deliberate act than speaking; but this affects only the weight of the evidence. It may also be thought that speech is a less trustworthy indication of what is really in the mind of the speaker than acts or appearance; but this, if it be so, also affects the weight of the evidence.
Certainly, to confine the evidence to acts, appearance, or speech which is wholly involuntary, would be impracticable and unreasonable, for almost every expression of thought or feeling can be simulated; and although evidence of the conscious voluntary declarations of a person as indications of his state of mind has in it some of the elements of hearsay, yet it closely resembles evidence of the natural expression of feeling which has always been regarded in the law, not as hearsay, but as original evidence; 1 Greenl. Ev. § 102; and when the person making the declarations is dead, such evidence is often not only the best, but the only, evidence of what was in his mind at the time.
On principle, therefore, we think it clear that, when evidence of the declarations of a person is introduced solely for the purpose of showing what the state of mind or intention of that person was at the time the declarations were made, the declarations are to be regarded as acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person or his behavior, or his actions generally. In the present case the declaration, evidence of which was offered, contained nothing in the nature of narrative, and was significant only as showing the state of mind or intention of the deceased.
The latest decision on the subject is Mutual Ins. Co. v. Hillmon, 145 U. S. 285, and many of the cases are cited in the opinion. See Commonwealth v. Fenno, 134 Mass. 217. See also Puryear v. Commonwealth, 9 Cr. Law Mag. 788; Blackburn v. State, 23 Ohio St. 146; Boyd v. State, 14 Lea, (Tenn.) 161; Groersen v. Commonwealth, 99 Penn. St. 388; Jumpertz v. People, 21 Ill. 375; Regina v. Jessop, 16 Cox C. C. 204. It is argued that the decision of the Supreme Court of the United States in Insurance Co. v. Mosley, 8 Wall. 397, shows that that court is somewhat more liberal than our decisions warrant in admitting declarations as a part of the res gestee, and that therefore this court will not follow the decision in Mutual Ins. Co. v. Hillmon, ubi supra. But, without considering whether we should follow Insurance Co. v. Mosley on the subject of res gestee, we are aware of no difference in the decisions of the two courts on the admission of declarations to show the existing condition of the mind of the declarant, if we except our decision in Commonwealth v. Felch, ubi supra, which we will consider hereafter. This court admits evidence of exclamations and of declarations made to physicians as evidence of existing pain in suits for personal injuries. The plaintiff in such suits, by the common law, could not be a witness. In the case of wills, upon the issue of sanity or undue influence, this court has always admitted evidence of declarations which tend to show the condition of the mind of the testator, and his intention with regard to the disposition' of his property, or his fear of the person alleged to have exercised undue influence. Shailer v. Bumstead, 99 Mass. 112. Lewis v. Mason, 109 Mass. 169. May v. Bradlee, 127 Mass. 414. Potter v. Baldwin, 133 Mass. 427. Pickens v. Davis, 134 Mass. 252. Woodward v. Sullivan, 152 Mass. 470. Upon an issue whether there was an intentional gift or gift causa mortis, the same rule prevails. Whitney v. Wheeler, 116 Mass. 490. Whitwell v. Winslow, 132
It is to be noticed that in all these cases, except those for personal injuries, the person, evidence of whose declarations was admitted, was dead at the time of the trial. In actions by the husband for seducing his wife and alienating her affections from him, the declarations and statements of the wife made before the alleged seduction, indicating the state of her affections towards her husband, have uniformly been admitted upon the question of damages. Palmer v. Crook, 7 Gray, 418. Jacobs v. Whitcomb, 10 Cush. 255. In the last case the court say : “ Whenever the mental feelings of an individual are to be proved, the usual expressions of such feelings are original evidence, and often the only proof of them which can be had.” At common law, the wife could not be a witness in such a case.
In Commonwealth v. Abbott, 180 Mass. 472, the defendant, who was not- the husband, being on trial for the murder of a married woman, for the purpose of showing “ the existence of motive on the part of the husband of the deceased to commit the crime,” offered evidence that the husband and wife quarrelled some years before the homicide, and that about six years before the homicide the husband was seen entering his own house with an axe in his hand, and that he then uttered threats against his wife and a man not named; the defendant also offered to show the ill feeling of the husband towards the wife by statements not in the nature of threats made by the husband to a witness. The evidence offered was confined to acts done or statements made on or before the year 1877. The homicide was in January, 1880. The reputation of the wife for chastity between the years 1873 and 1877 had been bad. There was uncontroverted evidence that from May, 1879, the reputation of the deceased was not
The admission of evidence of declarations in Elmer v. Fessenden, 151 Mass. 359, and in actions iiivolving the question of domicile, Kilburn v. Bennett, 3 Met. 199, and in the Bankruptcy
It is also argued that the deceased, with reference to the indictment, is not a party, and the question whether her declarations should be received as evidence is the same as if they were the declarations of any other person than the defendant, and that evidence of a confession by a third person that he killed the deceased, or of threats to injure the deceased made by a third person cannot be received. The decisions appear to be uniform that confessions of third persons cannot be received as evidence that they committed the crime, and that the defendant did not, and this for the plain reason that they are hearsay; they are strictly narratives of past transactions not made under oath, and are only competent as admissions against the persons making them. The decisions are not uniform whether evidence of threats made by third persons to injure the deceased should be admitted or not as evidence for the defendant. In most of the cases where the evidence of such threats by third persons has been rejected in trials for murder, the threats were made too long before the homicide to be significant, or they were made under very different circumstances from those existing when the deceased was killed, or there was no other evidence tending to implicate these persons in the commission of the crime, and the evidence was rejected on one or all of these grounds. Evidence of threats of the deceased against the defendant have been admitted when the question was whether the defendant or the deceased made the first assault, and whether the defendant acted in self-defence. Wiggins v. People, 93 U. S. 465. If, on a trial for murder, the defendant proved that another person had ill will towards the deceased, and had an opportunity to commit the murder, and was found on the day when the murder was committed near the place of the murder under suspicious circumstances, with a weapon which might have been the instrument with which the deceased was killed, and that the conduct of this person after the murder was such as to indicate that he had committed it, it would seem that evidence that this person on the day before the murder had
In Commonwealth v. Felch, 132 Mass. 22, the defendant was charged with attempting to procure the miscarriage of Mary Ann Finley, on July 2, 1881, by the use of some instrument to the jurors unknown, in consequence of which she died on the same day. He contended at the trial, “ that the operation was performed by Mary on herself; and there was evidence tending to show that it would have been possible for her to perform the operation on herself, considered as an operation, using for the purpose an ordinary lead pencil.” He offered to prove by one Hughes, “ that in the month of June next preceding the time of the alleged offence, Mary told her that she was pregnant by one Edward Titcomb, and that if Titcomb did not perform an operation to procure a miscarriage, or get some one to do so, she should perform the operation on herself with a lead pencil. It appeared that said declarations neither accompanied nor were explanatory of any act then done by her.” The evidence was excluded, and the defendant excepted. This court in the opinion treat the evidence as hearsay, and say: “ Such evidence is generally inadmissible. There are, however, several exceptions to this rule, and it is contended by the defendant that this evidence may properly be brought within some one of them. The only exception particularly designated is that relating to pedigree. This is indeed one of the well recognized exceptions to the general rule. That which is technically hearsay evidence is competent evidence upon a question of pedigree.” An examination of the original papers shows that one of the contentions of the defendant was that the evidence that Mary said that Titcomb was the father of the child was some evidence in the case that he was the father, on the ground that it was a declaration in relation to the pedigree
It is not necessary in the present case to determine what limitations in practice, if any, must be put upon the admission of this kind of evidence, because all the limitations exist which have ever been suggested as necessary. The person making the declaration, if one was made, is dead ; she had an opportunity to commit suicide, and it was competent for the jury to find that she had a motive to commit it; and the declaration, if made, was made under circumstances which exclude any suspicion of an intention to make evidence to be used at the trial.
We cannot know whether the jury would or would not have found that the deceased was the person who had the interview with the witness, or whether they would have believed the witness, or whether, if they did believe her, they would have found that the deceased had really the intention which the declaration indicated, or whether the testimony, in view of all the evidence, would have affected the minds of the jury; we can
The remaining exceptions may be noticed, although it is not absolutely necessary to decide them. The first exception is to the refusal of the court to permit the counsel for the defendant to ask Charles E. Ray, one of the jurors, who was under examination by the court upon the voir dire, “ to what extent he had read about the case in the newspapers.” Ray was sworn as a juror and sat as a juror at the trial. The court read to all the jurors summoned Pub. Sts. c. 170, § 35, and c. 214, § 7, and then read a portion of what was said by Shaw, C. J., speaking for the full court, in Commonwealth v. Webster, 5 Cush. 295, 297, 298, viz.: “ The statute intended to exclude any person who had made up his mind, or formed a judgment in advance, in favor of either side. Yet the opinion or judgment must be something more than a vague impression, formed from casual conversations with others, or from reading imperfect, abbreviated newspaper reports. It must be such an opinion upon the merits of the question as would be likely tp bias or prevent a candid judgment, upon a full hearing of the evidence.” The court also read the statement made by Chapman, C. J., speaking for the full court, in the trial of Samuel M. Andrews. Report of Trial of Andrews, by Charles Gf. Davis, p. 8. In the present case the court, having put to the juror Ray all the statutory questions, which he had answered to its satisfaction, refused to permit the counsel for the defendant to put the question we have quoted above. The statutes we have cited, as also the St. of 1887, c. 149, undoubtedly contemplate that other questions besides the statutory questions may be put to jurors by the court, or by the parties or their attorneys under the direction of the court. The Pub. Sts. c. 170, § 35, also provide that “ the party objecting to the juror may introduce any other competent evidence in support of the objection.” To determine whether a juror has such bias or prejudice that he does not stand indifferent in the cause, is often a matter of a good deal of delicacy and difficulty, because persons most affected with bias or prejudice are sometimes the least sensible
The mother of the deceased, 'Mrs. Davis, testified to a conversation with the defendant on the morning of December 24, a part of which is as follows: “ I asked him where Tena was. He said he hadn’t seen her. . . . Says I, 1 Don’t lie; she went out to meet you last night, on the corner of Ferry Street, and you have carried her off.’ He said he had not. Said I, 1 You have.’ ” The counsel for the defendant asked that this be stricken out, and objected to its admission. The court overruled the request, and admitted the testimony, and the defendant excepted. There are other examples of the admission of similar testimony against the objection of the defendant. It does not appear that the defendant testified as a witness in his own behalf, and no question arises of the admissibility of evidence to affect his credit as a witness. The exceptions recite that, •“ after Mrs. Davis had testified, the Commonwealth introduced
If a defendant is charged with crime, and unequivocally denies it, and this is the whole conversation, it cannot be introduced in evidence against him as an admission. Fitzgerald v. Williams, 148 Mass. 462. If any part of a conversation with the defendant put in evidence tends to show directly or indirectly that he is guilty of the crime charged, the defendant has the right to have put in evidence all that was said to and by him at the same time, and relating to the same subject, although it is in his favor. Commonwealth v. Keyes, 11 Gray, 323.
When a statement is made in the presence and hearing of a defendant which, if true, tends to show that he is guilty, and he remains silent or makes an equivocal reply, the rule of law has been stated to be as follows: “ The rule is that a statement made in the presence of a defendant, to which no reply is made, is not admissible against him, unless it appears that he was at liberty to make a reply, and that the statement was made by such person and under such circumstances as naturally to call for a reply unless he intends to admit it. But if he
The exceptions in the present case do not set out verbatim the whole conversation between Mrs. Davis and the defendant on the morning of December 24, and of that set out we cannot
Verdict against Trefethen set aside.