48 N.H. 546 | N.H. | 1869
1. The first exception insisted upon by the defendant is, that the plaintiff was permitted, against the defendant’s objections, to introduce the record of a complaint to a justice of the peace for the same assault and battery, together with the warrant issuing thereon, and the judgment of the justice, showing that the defendant in such criminal proceeding pleaded guilty to the charge.
Such evidence is received in civil cases, on the ground that it is the deliberate confession of guilt, and for this reason is regarded as among the most efficient proofs in the law. 1 Greenl. Ev. § 215. They are denominated judicial confessions, being made before the magistrate, or in open court in the due course of judicial proceedings, and it is essential that they be made of the free will of the party, and with a full and perfect knowledge of the nature and consequences of the confession. Of this kind are the preliminary examinations taken in writing by magistrates pursuant to statute law, and the plea of guilty made in open court to an indictment. Such confessions or pleas are presumed to be
The original record, or a copy of the judgment, duly certified, furnished by the magistrate who heard the complaint, and recorded the plea and judgment, would seem to be the highest and best evidence that could be furnished in such cases, though it seems that, sometimes, oral testimony has been adjudged sufficient to prove such confessions. 1. Greenl. Ev. § 90, and cases cited in note.
Defendant’s exception upon this point is overruled.
2. It appears to us that the declarations of the plaintiff, as testified to by Blood, relative to the character and extent of his personal injuries inflicted upon him by defendant during the affray would be pertinent to the issue, as constituting part of the res gestos, provided the same were made in the presence or hearing of such witness. 1 Greenl. Ev. § 101; 1 Phillips’ Ev. 191; Perkins v. Railroad, 44 N. H. 225. That the plaintiff was looking very pale at the time of the encounter was a distinct fact, to which the witness might properly testify, as being consistent with the other injuries alleged as being received from the defendant at the time.
Upon the cross-examination of defendant, he denied he saw Blood about there, although he knew him. If, then, the jury, should be induced to believe this statement of the defendant, Blood's testimony might, of course, be of no avail. Hence, it would be important to plaintiff to be able to fortify Blood’s evidence. As tending to effect this object defendant was inquired of as to his means of knowing Blood. He answered that the only opportunity he had to know him was, that Blood had shod his horse, and his (Blood’s) hired man Monahan drove the nails at the time. Now we think it was proper, as tending to weaken the force of the defendant’s testimony to call Blood, and show by him, that he had no recollection of shoeing the defendant’s horse at all, and that Monahan did not work for him until several months after this affray. In this view, we think the testimony of Blood, when recalled by plaintiff, was not immaterial; and that the authorities quoted by defendant on this point, do not sustain his exception. It is there-ore overruled, and there must be
Judgment on the verdict for plaintiff.
