Medina Common Pleas.

tion as a whole should be against the pecuniary interest of the declarant. If a declaration, although in part against declarant's interest, was when made obviously beneficial to him to a still greater extent, and such a declaration is offered as a whole, it should be rejected, for then the grounds upon which such evidence is received is wanting. In such case the declaration would not be against the declarant's real interest and it could not be said, therefore, that there was an "extreme improbability of its falsehood." The foundation of the rule is that the declaration is against the real interest of the declarant. That is what makes for its truth, and without that circumstance in a given case it would be unsafe and dangerous to apply the rule. The fact that the circumstances show an apparent motive to misrepresent, while it may not be conclusive, should have due consideration in determining whether or not the declaration is really against the interest of the declarant. The question is to be determined by the court when the evidence is offered and each case must be determined in the light of its peculiar facts and circumstances.

"It seems not to be sufficient, that, in one or more points of view, a declaration may be against interest, if it appears, upon the whole, that the interest of the declarant would be rather promoted than impaired by the declaration." 1 Greenleaf, Evidence Sec. 149.

In the transaction in which the declaration was made in the case at bar the real interest and apparent object of Oliver was to avoid liability to Semple's administrator, and the declaration as to Campbell was a mere incident, an obvious excuse; the circumstances indicate an apparent motive to misrepresent, and the declaration as offered was not, as a whole, clearly against the interest of the declarant. If this construction seems technical, a careful reading of the cases will disclose the fact that the better reasoning requires the rejection of such evidence unless it comes clearly within all the conditions requisite for its reception under the rule.

On this subject, Judge Dillon, speaking for the court in the Iowa case hereinbefore referred to, says:

"Our examination and survey of this subject may be thus

State v. Campbell.

summed up. This species of evidence being somewhat anomalous in its character, and standing on the ultimate thule of competent testimony, is not highly favored by the courts, and the tendency is rather to restrict than to enlarge the right to receive it, or at least to require the evidence to be brought clearly within all the conditions requisite for its reception.

The St. Louis court of appeals in Reed v. Morgan, 100 Mo. App. 713 [73 S. W. Rep. 381, 384], condemns this character of this testimony and says:

"It is of limited probative force, which has been pronounced by eminent authorities dangerous and the most unreliable of all evidence, to be received with great caution and tolerated rather than favored by the courts."

See also Rosenwald v. Middlebrook, 188 Mo. 58 [86 S. W. Rep. 200], and authorities therein cited.

While the rule is established in civil cases in many states, there is no reported case in Ohio where it has been applied, and in the one reported Supreme Court case in Ohio where it was sought to apply the rule its application was rejected on a technicality, Bird v. Hueston, 10 Ohio St. 418. Furthermore, its application to a criminal case has not been established in any reported case in the United States, so far as the attorneys and this court have been able to ascertain from a thorough and extended search. (Rice, Crim. Ev. Sec. 87; United States v. Mulholland, 50 Fed. Rep. 413.)

In the only reported case in the United States where its application was attempted in a criminal case, so far as I have been able to ascertain, it was rejected, Commonwealth v. Slocum, 80 Mass. (14 Gray) 395.

That case, except in one particular, that of the time of the declaration, is exactly like the case at bar. It is true that the rule has been contended for in a large number of criminal cases where the interest of the declarant was not pecuniary, but the declaration was claimed to be against his interest because it might subject the declarant to a successful criminal prosecution. In practically all such cases the rule has been rejected. No good reason is given for a difference between pecuniary interest and fear of criminal prosecution. Surely the latter would

Medina Common Pleas.

furnish a much stronger motive against falsehood than the former. Hence, there is a strong suspicion that the real reason for these decisions is to be found in the unwilling guess of the courts to apply the rule in criminal cases. Certainly these cases establish the fact that courts are unwilling to apply the rule in criminal cases to evidence which is not clearly within the terms of the rule.

If the declaration of a deceased person which might have subjected him to a successful criminal prosecution is not admissible in favor of the defendant being tried for the offense concerning which the declaration was made, then for a much stronger reason the declaration of a deceased person which was against his pecuniary interest should not be admitted in a criminal case.

My judgment is that the rule contended for should not be extended or enlarged or applied to cases other than those required by the reported decisions, and feeling that the evidence offered is not clearly within all the conditions required by the rule, I am unwilling to grant a new trial, for the rejection of the same, in a case where the finding of the jury is so clearly sustained by the evidence. The motion for a new trial will, therefore, be overruled. The defendant may stand up.

Considering the fact that as a result of these transactions, your property has been taken away from you, that you have been disbarred and disgraced, considering also your health and age of seventy-three years and that the jury that found you guilty recommend mercy, I am inclined to make your sentence just as light as is compatible with the public welfare which requires me to consider also your position and standing, and consequent obligation and duty as a citizen. It is the judgment of the law and the sentence of the court that you be taken to the jail of the county and thence within five days to the penitentiary of the state of Ohio and there be confined at hard labor without solitary confinement, for a period of two years.

INDEX.

Assumpsit-Champerty.