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$676.

§ 686. [676.] Where, also, the declaration, act, or Oct. 11, 1832, omission forms part of a transaction which is itself the Declarations fact in dispute, or evidence of that fact, such declaration, which are part act, or omission is evidence as part of the transaction.

Res gesta. This section applies to declarations and admissions in writing as well as verbal: McKinney v. Smith, 21 Cal. 374; Aguirre v. Alexander, 58 Id. 21. The declarations inust be contemporaneous with the act to which they are intended to give character: Aguirre v. Alexander, 58 Id. 21; Emeric v. Alvarado, 64 Id. 529. They are not required to be precisely concurrent in point of time with the principal fact, if they spring out of the principal transaction, if they tend to explain it, are voluntary and spontaneous, and are made at a time so near it as to preclude the idea of leliberate design: People v. Vernon, 35 Id. 51; 1 Greenl. Ev., sec. 108; Mitchum v. State of Georgia, 11 Ga. 615; Commonwealth v. McPike, 3 Cush. 181. Plaintiff's declarations at the time of the accident, that he did not blame anybody on the boat, are admissible in behalf of the owners of the boat in an action against them for damages: Gulzoni v. Tyler, 64 Cal. 334. Declarations of the deceased, in a prosecution for manslaughter, made before the meeting with the accused, to the effect that he did not intend to assault accused, are not admissible: People v. Carlton, 57 Id. 83; nor his declarations made half an hour after the shooting as to what he intended to do with accused: People v. Westlake, 62 Id. 303. Evidence of accused's manner and conduct when arrested is admissible: People v. Shem Ah Fook, 61 Id. 380. To impeach a sale upon the ground of fraud, the fraudulent intent of both the seller and the purchaser must be shown. The declarations as well as the conduct of the seller before the sale are competent testimony: Visher v. Webster, 8 Id. 112. Where the issue was fraudulent transfer of property, evidence of declarations of the owner while on a journey to the place whence the fraudulent transfer was to be consummated, in regard to such transfer,

of transaction.

are relevant, and form a part of the 12 Or. 399. fraudulent transaction: Davis v. Drew, 58 Id. 152. In an action for assault, etc., the language used by defendant at the time of the assault may be proved as part of the res gesta, for the purpose of showing malice, but not to prove special damage unless it is alleged: MacDougall v. Maguire, 35 Id. 278. So it is permissible to show that the wounded man, in a trial for assault, pointed to the accused and told witness to arrest him, and that accused thereupon ran away: People v. Lock Wing, 61 Id. 80; and that the deceased, shortly after the infliction of the mortal wound, pointed to the accused, said he did it, and that there was no cause for it: People v. Abbott, 4 West Coast Rep. 132. When the issue made is whether the credit was given to the defendant for goods, or to another person, the declarations of the vendor made to such other person after the transaction has been completed, and some time has elapsed, are not a part of the res gesta, and therefore inadmissible: Whitney v. Durkin, 48 Cal. 462. Evidence of the acts and declarations of the grantee in regard to the deed while it was in her actual possession are admissible upon the question of her acceptance of it: Kidder v. Stevens, 60 Id. 414. So declarations of a husband at the time a deed of land was executed to his wife, that the purchase money was her separate property, are admissible as part of the res gesta: Moore v. Jones, 63 Id. 12. Bloody clothing worn by deceased at the time of the homicide is admissible as part of the res gesta: People v. Hong Ah Duck, 61 Id. 387; People v. Majors, 2 West Coast Rep. 580; and evidence of the condition of the body: Id. Upon an inquiry as to state of mind, sentiments, or disposition of a person at any particular period, his declarations and conversations are admissible: Barthelemy v. People, 2 Hill (N. Y.), 248.

per

§ 677.

§ 687. [677.] And where the question in dispute be- oct. 11, 1862, tween the parties is the obligation or duty of third son, whatever would be evidence for or against person is primary evidence between the parties.

Evidence

such relating to

third persons.

Oct. 11, 1862, 678.

Declaration
of decedent,
etc., evidence
of pedigree.

Oct. 11, 1862, $672.

Declaration

of decedent against interest.

Oct. 11, 1862, $ 680.

When part

§ 688. [678.] The declaration, act, or omission of a member of a family, who is deceased or out of the state, is also admissible as evidence of common reputation in cases where, on questions of pedigree, such reputation is admissible.

Evidence of pedigree. A witness may testify as to her age at a certain time although the only knowledge that she has of the fact is derived from statements made to her by members of the family: Morrell v. Morgan, 65 Cal. 575. An entry in a family Bible or book by a parent or relative as to birth, marriage, death,

etc., is a declaration as to pedigree: Berkley Peerage Case, 4 Camp. 401; Douglass v. Saunderson, 2 Dall. 116; Curkskadden v. Poorman, 10 Watts, 82. So as to recitals in correspondence and family documents: See 1 Greenl. Ev., sec. 104; Sussex Peerage Cass, 11 Clark & F. 85; Jackson v. Cooley, 8 Johns. 128; Jackson v. Russell, 4 Wend. 543.

§ 689. [679.] The declaration, act, or omission of a deceased person, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest.

The declaration must appear to have been against the decedent's pecuniary interest, that the declarant is deceased, and that he possessed competent knowledge of the facts: Short v. Lee, 2 Jacob & W. 464; Poorman v. Miller, 44 Cal. 275; Sill v. Reese, 47 Id. 342.

The substance of the declaration is sufficient: People v. Murphy, 45 Cal. 145. Declarations made by a testator in his will are competent evidence, after his death, to prove his marriage and the legitimacy of his children, in

a case where the persons so declared his wife and children, are the devisees: Pearson v. Pearson, 46 Id. 610. Declarations of decedent, the former husband of the plaintiff in ejectment, that the land, the subject-matter of the action, which had been conveyed to the plaintiff by a third person as a deed of gift, but really for money, was held in trust for the defendant who had advanced the money, are admissible though made after the execution of the deed: Wormouth v. Johnson, 58

Id. 621.

§ 690. [680.] When part of an act, declaration, conversation, or writing is given in evidence by one party,

of transaction the whole, on the same subject, may be inquired into by admissible. the other; when a letter is read, the answer may be

proved whole

given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.

Part of transaction admitted admits whole: See generally the note to Rouse v. Whited, 82 Am. Dec. 342 et seq.

The principle of this section was affirmed as to a confession of murder: People v. Navis, 3 Cal. 106; discharge of a mortgage: Chenery v. Palmer, 5 Id. 133; reply to a slander: Bradley v. Gardner, 10 Id. 371; a series of docu

ments: Ingoldsby v. Juan, 12 Id. 564; different portions of a deed: Lawrence v. Fulton, 19 Id. 689; one document referred to in another: Neuval v. Cowell, 36 Id. 648; Hicks v. Coleman, 25 Id. 128; words written in the margin of an alcalde's book opposite a grant entered therein: Rice v. Cunningham, 29 Id. 497; portions of a conversation: Gillam v. Sigman, 29 Id. 641; por

tions of a complaint read in evidence: Spanagel v. Dellinger, 38 Id. 283. But where, after a grant of a lot had been made by an alcalde to two persons jointly, and possession had been delivered, a certificate was made by the alcalde, written on the same piece of paper as the grant, stating that one of the grantees had renounced his property in the lot, and that it should be the property of the other, this was held not to divest the grantee so alleged to have renounced, unless it appeared that he authorized the alcalde to make the certificate: Lick v. Diaz, 30 Id. 65.

Where a deed called for a map duly recorded in the recorder's office, it was held that an instrument not copied into the proper book of record, or a copy made in pencil or other materials that would not permanently remain, was not admissible: Caldwell v. Center, 30 Cal. 542. Where the opening testimony of the plaintiff tended to prove that a company was a corporation de facto, such evidence not only dispensed with the necessity of strict proof of its corporate character by defendant, but precluded the plaintiff from inquiring into or disputing it: Rondell v. Fay, 32 Id. 360. Where part of a letter has been read, other explanatory parts are admissible: Walker v. Griggs, 28 Ga. 552. Where a letter is read to charge a party, his answer is held to be admissible in reply, under the rule which admits the whole of a conversation or transaction:

Roe v. Day, 7 Car. & P. 705; Gibson v. Lacy, 87 Ind. 202; Lester v. Sutton, 7 Mich. 329; Livermore v. St. John, 4 Rob. (N. Y.) 12. So where the reply to a letter is introduced, it is held that the other party may explain such answer by introducing the letter to which it was a reply: Watson v. Moore, 1 Car. & K. 626. Where a letter referred to a memorandum, and one party read the letter, to charge the other it was held that the other might explain the letter by introducing the memorandum in evidence: Barney v. Smith, 4 Har. & J. 485. Because one letter of a series, as in a letter copying-book, is admitted, this is not ground for admitting the whole series or book of letters: Sturge v. Buchanan, 2 Macl. & R. 90. But where a defendant makes evidence of a number of a series of plaintiff's letters, to charge him, this makes the whole series evidence for the plaintiff: Zim

merman v. Huber, 29 Ala. 379; Ray- Oct. 11, 1862, mond v. Howland, 17 Wend. 389. $ 680.

Where a firm book is used by a partner merely for the purpose of fixing a date, the entries of accounts in the book are not therefore admissible in evidence: Abbott v. Pearson, 130 Mass. 191. But if a party wishes to avail himself of credits in a book of accounts, he cannot alone introduce the entries of such credits; the whole book becomes evidence: Veiths v. Hagge, 8 Iowa, 163; Piper v. White, 56 Pa. St. 90. It is held that a party cannot read distinct and disconnected paragraphs in a newspaper because one has been read by his adversary: Darby v. Ouseley, 1 Hurl. & N. 1. If part of an affidavit or deposition is read in evidence, the remainder relative to the same matter may be read: Forrest v. Forrest, 6 Duer, 102; Webster v. Calder, 55 Mc. 165; Lynde v. McGregor, 13 Allen, 172; but this does not necessitate, nor does it authorize, the whole to be read: Houstine v. O'Donnell, 5 Hun, 474. Where part of a record is offered in evidence by one party, it is held that the other may read the rest of it in evidence: Baker v. Mygatt, 14 Id. 131; Haile v. Hill, 13 Mo. 612; Davis v. Forrest, 2 Cranch C. C. 23; State v. Hawkins, 81 Ind. 486. So if part of a pleading is read or adopted to charge a party, he may offer the rest of it in explanation; for admissions in a pleading must be accepted as an entirety: Pennell v. Meyer, 2 Macl. & R. 98; Bumpass v. Webb, 1 Stew. 19; Daviss v. Flewellen, 29 Ga. 49; Gildersleeve v. Maloney, 5 Duer, 383; Goodyear v. De la Vergne, 10 Hun, 537; but a party cannot use the rest of his pleading as affirmative evidence for himself: Gunn v. Todd, 21 Mo. 303.

Conversation or admission. The rule laid down in the leading case of Prince v. Samo, 7 Ad. & E. 627, is that "where a statement forming part of a conversation is given in evidence, whatever was said by the same person in the same conversation that would in any way qualify or explain that statement is also admissible; but detached and independent statements, in no way connected with the statement given in evidence, are not admissible; and there is no difference in this respect between statements made in conversation by a party to the suit and those made by a third

Oct. 11, 1862, $ 680.

Oct. 11, 1862, § 681.

Proof of contents of writing.

20 Or. 428.

party; and this rule has been generally followed in the courts since: 1 Greenl. Ev., sec. 467; Taylor on Evidence, 7th ed., sec. 733; Nelson v. Iver son, 24 Ala. 9; Jones v. Fort, 36 Id. 449; Doonan v. Mitchell, 26 Ga. 472; Metzer v. State, 39 Ind. 597; Gaddis v. Lord, 10 Iowa, 141; McIntyre v. Harris, 41 Miss. 81; Commonwealth v. Keyes, 11 Gray, 323; Carver v. Tracy, 3 Johns. 427; Starin v. People, 45 N. Y. 340; Platner v. Platner, 78 Id. 103; Grattan v. Metropolitan L. I. Co., 92 Id. 274; Bank v. Donaldson, 6 Pa. St. 179; Haisten v. Hixen, 3 Sneed, 691. In Garey v. Nicholson, 24 Wend. 350, the rule was approved only so far as it applied to declarations of parties to the action. That is deemed to qualify admissions which rebuts or destroys the inference to be drawn from or affects the use to be made of them: Grattan v. Metropolitan L. I. Co., 92 N. Y. 274. The whole or additional evidence cannot be introduced after part evidence of admissions, unless the latter makes it necessary that the other be introduced by way of explanation: Collins v. Johnson, Hemp. 279; but the fact that evidence of the admissions, in the first place, was immaterial, will not cut off the other party from cross-examination concerning the remainder of the conversations or admissions: Ketchingham v. State, 6 Wis. 426; Lanier v. British Bank, 18 Ala. 625; Cabiness v. Martin, 4 Dev. 106. Where the conversation was not gone into, save in a negative way to show that a certain thing was not spoken of, the rest of the conversation was held inadmis

sible: Platner v. Platner, 78 N. Y. 103. Where one puts in evidence the admissions of a party against himself, it is no objection to allowing in evidence the rest of what was said at the same time on the same subject, that the latter is favorable to the party offering it, though the party's declarations otherwise would not be admissible in his own favor: Chambers v. State, 26 Ala. 59; Hudson v. Howlett, 32 Id. 478; Adkins v. Hershey, 14 Ark. 442; Moore v. Wright, 90 Ill. 470; State v. Martin, 28 Mo. 531; Garey v. Nicholson, 24 Wend. 350; Crosby v. Leary, 6 Bosw. 312; Goodyear v. De la Vergne, 10 Hun, 537; Bearss v. Copley, 10 N. Y. 93. But the rule that when part of a conversation is introduced, the other party is entitled to the whole of it, does not apply to a case where a party seeks to introduce his own statements, in his own favor, made at a conversation with his own witness, to whose testimony the other party did not object: State v. Elliott, 15 Iowa, 72. Thus a party who has put in evidence the statement of a witness to himself cannot put in his answer to such statement, although the other side cross-examined the witness as to the statement: Cook v. State, 24 N. J. L. 843. So the rule as to conversations does not apply to conversations subsequent to the admission, and having no connection with the subject-matter thereof: Robinson v. Ferry, 11 Conn. 460; Straw v. Greene, 14 Allen, 296. Nor will it admit other conversations not referred to in the one put in evidence: Parker v. Barker, 16 N. H. 333.

§ 691. [681.] There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases:

1. When the original is in the possession of the party against whom the evidence is offered, and he withholds it under the circumstances mentioned in section 759 [749];

2. When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default;

3. When the original is a record or other document in the custody of a public officer;

$681.

4. When the original is a record or other document Oct. 11, 1862, of which a certified copy is expressly made evidence by this code or some other statute of the state;

5. When the originals consist of numerous accounts, or other documents, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

In the cases mentioned in subdivisions 3 and 4, a copy of the original shall be produced; in those mentioned in subdivisions 1 and 2, either a copy or oral evidence of the contents.

Contents of writing generally. This section is limited to proof of the contents of the writing. It is a general rule that the contents of a paper can never be proved until the non-production of the original is accounted for, as provided in this section: Smith v. Cox, 9 Or. 327. The fact of the making of the writing may be proved by parol: Poole v. Gerrard, 9 Cal. 594; Sais v. Sais, 49 Id. 264. If a party permits his antagonist to prove a fact by secondary evidence, he cannot afterwards object that it was not proved by the best: Goode v. Smith, 13 Id. 84. Showing the original verdict of a coroner's jury to a witness in a criminal case, and asking the witness if he had signed the verdict, is not "an effort to prove the contents of a written record by parol": People v. Donovan, 43 Id. 162. If the secretary of a corporation, by mistake, omits to enter minutes of the acts of the board, or such entries are postponed by the corporation, the acts may be proved by parol: B. V. Association v. Williams, 50 Id. 353.

Possession of opponent. The object of this provision is not to compel the production, but to permit secondary evidence in case of failure to produce the writing: Sec Bogart v. Brown, 5 Pick. 18; Gould v. McCarty, 11 N. Y. 575.

Notice to produce. See § 759 [749], post. Where notice was served on the defendant's attorneys, on the day of the trial, to produce a paper, and it was shown that this paper was that day in possession of one of the attorneys of defendant, the court said the sufficiency of notice to produce a paper

shown to be in the possession of a party was a question of discretion; that if it were impossible to procure it between the time of giving notice and the trial, the fact should have been made to appear; and it was held that secondary evidence was properly admitted: Burke v. Table M. W. Co., 12 Cal. 407. Literal accuracy cannot be expected in the description of a paper in the possession of the adverse party. In a notice to produce, such description as will apprise a man of ordinary intelligence of the document desired is enough: Burke v. Table M. W. Co., supra. Where plaintiff was not entitled to the custody of a document, as it was a paper made to the defendant, it was properly presumed to be in his possession. When notified to produce it, he disclaimed all knowledge of it. Under these circumstances the plaintiff was held entitled to prove its contents by secondary evidence: Jones v. Jones, 38 Id. 586.

Lost or destroyed writings. If a lost writing is sought to be proved, the party offering the evidence must first prove that diligent search was made in all places where the original was likely to be found, unless it is proved to have been destroyed: Taylor v. Clark, 49 Cal. 671; Bennett v. Taylor, 5 Id. 502; Ord v. McKee, 5 Id. 517; Folsom's Ex'rs v. Scott, 6 Id. 460; Fallon v. Dougherty, 12 Id. 105; Grimes v. Fall, 15 Id. 65; Lawrence v. Fulton, 19 Id. 684; Towdy v. Ellis, 22 Id. 659; Leese v. Clarke, 29 Id. 665; Patterson v. K. M. Co., 39 Id. 365; King v. Randlett, 33 Id. 320; People v. Hust, 49 Id. 653; Lombardo v. Ferguson, 15 Id. 373; and whether lost or destroyed, he must show that

Proof of contents of writing.

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