Though the rule be general that hearsay evidence is illegal, yet this rule is subject to many exceptions. It would
Justice Clayton concurred.
The samе witness, proceeding in his testimony, stated that about five minutes after Negro Richard had left him, he heard a gun discharged at the defendаnt’s house, and immediately after a voice cried out, “Be gone!” He did not know whose voice it was. Question by Attorney General, “Whose voice did you think it was?”
The defendant’s counsel objected to the answering this question. They insisted on the uncertainty of this kind of evidenсe. That especially in a case so highly penal the court and jury should have facts and not suppositions to judge by; and that the general rule is that what a witness believes and persuades himself merely, without any knowledge, is no evidence, 2 Harr.Ch.Pr. 613.
On the contrary, thе. Attorney General contended, this was good evidence, that there were many things which in their nature did not admit of certain knowledgе, of which this was one. No one could be absolutely certain of another’s voice at the distance of two hundred or threе hundred yards, the real distance from the person who exclaimed in this case. Besides, this evidence
The Court overruled the objection, and the witness proceeded to state his belief respecting the voice which he heard.
In the course of the trial it appeared that the principal evidence against the defendant came by confession from himself; that he acknowlеdged he had shot the negro man, but observed in his justification that it was late at night, about ten or eleven o’clock, when the acсident happened, and that he apprehended the negro man was robbing his hen house, at the time when he fired his gun toward it, and unfortunаtely killed the Negro. Beside this, there were some circumstances proved which were at best presumptive of the defendant’s guilt. The counsel who argued for the defendant contended that confessions out of court, unattended with strong corroborative circumstances, were not to be regarded, and were the weakest evidence in the law. Fost. 243, Eden Pen.L. 166, 4 Bl.Comm. 357, Becc.Cr. 55, Constitution of Delaware. Second, that circumstances not amounting to the most violent presumption should never be considered as sufficient to convict. 1 Hale P.C. 635, 2 Hale P.C. 289, 4 Bl.Comm. 359, Eden Pen.L. 87, 88, 321; 3 Cas.Ch. 105.
The Attorney General opposed those principles in the extent to which they were carried. It is only in certain circumstances, and where it is entirely unsupported by other evidence, that confеssion is to be slighted. Generally, it is the very best evidence known in the law, 2 Harr.Ch.Pr. 604. As to presumptive evidence in criminal cases, it is always аdmitted, and in books of the highest authority it is much respected. Without it, not one criminal in one hundred could be brought to justice.
I shall state thе sentiments of the Court on the law which applies to this case; and as the jury recollect the evidence, they will be able to decide on that for themselves.
I apprehend the law generally to be as stated by the Attorney General. The confessiоn of the defendant, in most cases, is certainly the best and highest evidence. This principle is laid down very fully and properly in 2 Harr.Ch.Pr. 604. It is true some modern authorities would seem to oppose this doctrine, but they only apply to cases which are unsupported by any evidence from circumstances in aid of the confession. This is clearly the principle in Leach 319. As to the rejection of presumptive evidence in criminal cases, even as far as is contended by the defendant’s counsel, I cannot admit the idea. It would free almost every criminal from the fears and the dangers of a prosecution. Our
But the counsel for the defendant further contend that as chief part of the evidence for the State is derived from the defendant’s confession, and as that confession is to be taken altogether and not by parcels, that the defendant was justifiable, or at least excusable, in shooting the deceased Negro when he was at the' hen house so late at night and, as the defendant supposed, was stealing his fowls. For the support of this doctrine they cite' Fost. 273, 298; Sty. 469; 1 Hale P.C. 486, 487, 488. They insist on the distinction between a person’s being engaged in a trespass and in a felony; and that in the latter case, it is justifiable' to kill another in defense of one’s property when about to be feloniously taken. I apprehend this doctrine also is carried too far.. It never could be excusable to kill a human creature for stealing; one fowl; and yet this is felony. Nothing would seem to be a. good justification but defense against a felonious attempt on a. man’s person or dwelling house, attended with force; see 1 Hawk.. P.C. 108, 1 Hale P.C. 486, 488. A man’s being caught in the smaller acts of felony can never amount to a justification.
The jury returned their verdict, “Not guilty.”