Felt v. Amidon

43 Wis. 467 | Wis. | 1877

Lyon, J.

On the trial of the action, the learned county judge admitted testimony on behalf of the plaintiff to the effect that the plaintiff’s daughter expressed a desire, on different days and at different times after the two defendants left her in Milwaukee, to return to her home, and that at such times she wept. Testimony as to what she said and did in the presence of the two defendants at the house to which they took her, was also admitted on behalf of the plaintiff; but testimony of her statements at the hotel, made to a witness during the afternoon of the same day, was offered by the defendants and rejected.

The transaction upon which this action is founded is the alleged enticing of the plaintiff’s daughter from her home by the defendants. That is the res gestae, and all that was said or done by the actors in that transaction contemporary with it, and which tends to illustrate its character, are parts thereof, and as such may be proved on the trial by either party. The law on this subject is so well stated in Lund v. Tyngsborough, 9 Cush., 36, that we cannot do better than to quote from the opinion in that case. “ When the act of a party may be given in evidence, his declarations made at the time and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations, as a part of the transaction, and the tendency of the contemporary declarations, as a part of the transaction, to explain the particular fact, distinguish this class of declarations from mere hearsay. Such a declarati on derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always be given in evidence to the jury with the principal fact. There must be a main or principal fact or transaction, and Only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it.” Per Fletcher, J., p. 42.

So also in Hadley v. Carter, 8 N. IL, 40, it is said that “ where declarations of an individual are so connected with his acts as to derive a degree of credit from such connection, independently of the declaration, the declaration becomes part of the transaction, and is admissible in evidence.” And in our own case of Sorenson v. Dundas, 42 Wis., 642, it is said that “ declarations are verbal parts of the res gestae, only when they are contemporaneous.”

In the present case, the act of enticing — the res gestee — undoubtedly terminated when the two defendants left the plaintiff’s daughter at the house in Milwaukee to which they conducted her; and evidence of her declarations and the accompanying manifestations of grief made during subsequent days, is mere hearsay, and inadmissible within the rules above stated. The manifest purpose and tendency of such evidence were to convince the jury that the girl did not leave her home of her own free will, but that she was enticed therefrom by the defendants. We do not and cannot know but the evidence thus improperly admitted turned the verdict against the defendants. Because it may have had that effect, the error in admitting it is a material one, and fatal to the judgment.

By the same rules, evidence of the declarations of the girl relative to her leaving her home, and to the circumstances under which she came to Milwaukee, made during the afternoon at the hotel, was competent and should have been received.

Numerous other exceptions are preserved in the record, upon which errors are assigned; but we do not find it our duty to pass upon them.

By the Goiurt. — The judgment of the county court is reversed, and the cause remanded for a new trial.