stantly dies of that wound; and then another man is seen to come out with a bloody sword, and no other man was at that time in the house. "This," he says, "is a violent presumption that he is the murderer; for the blood, the weapon, and the hasty flight, are all necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself is the proof of those circumstances that do necessarily attend the fact." But, as Best shows, any of the following hypotheses will reconcile these facts with innocence of the man.

First, That the deceased, with the intention of committing suicide, plunged the sword into his own body; and that the accused, not being in time to prevent him, drew out the sword, and so ran out, through confusion of mind, for surgical assistance.

Second, That the deceased and the accused both wore swords; that the deceased, in a fit of passion, attacked the accused; and that the accused, being close to the wall, had no retreat, and had just time to draw his sword, in hope of keeping off the deceased, who, not seeing the sword in time, ran upon it and so was killed.

Third, That the deceased may in fact have been murdered, and that the real murderer may have escaped, leaving a sword sticking in or lying near the body, and the accused coming in may have seized the sword and run out to give the alarm.

Owing to this uncertainty, therefore, courts-martial should never find guilty on circumstantial evidence, unless the evidence produces moral certainty to the exclusion of every reasonable doubt. The proof ought to be not only consistent with the prisoner's guilt, but irreconcilable with any hypothesis of innocence.

Hearsay is the evidence of those who relate not what 1 Vol. 1, § 317.

they perceived themselves, but what they have derived from others.

It is used in reference to that which is written as well as that which is spoken. For several reasons the law does not admit such evidence, the principal of which are :First, the party originally stating the facts does not state them under the obligations of an oath; and second, the party against whom the evidence is given does not have an opportunity of cross-examination.

Courts-martial should be careful, however, not to confound original with hearsay. It does not follow because the writings, or words in question, are those of a third person, not under oath, that, therefore, they are to be considered as hearsay. On the contrary, it happens, in many cases, that the very fact in controversy is, whether such things were written or spoken, and not whether they were true; and, in other cases, such language or statements, whether written or spoken, may be the natural or inseparable concomitants of the principal fact in controIn such cases it is obvious that the writings or words are not within the meaning of hearsay, but are original and independent facts, admissible in proof of the issue.'

versy.

Informatoin. Thus, where a person acted on certain information derived from third parties, such information would be original and not hearsay.

Admissions. In the same way with admissions of the party against his interests, this is regarded as original.

Declarations and Acts. There are certain declarations and acts which are regarded as original and not hearsay evidence from their connection with the principal fact in issue. Thus, in the trial of Lord George Gordon, the cry of the mob was admitted as original evidence, since it formed part of the res gesta.

1 Greenleaf, Vol. I, § 100.

1

While it is admitted that the declarations and acts of the principal parties, as well as the circumstances surrounding them which tend to show the nature of the principal fact, are admissible, yet it is necessary, first, that they be closely connected with the principal fact in issue; second, that they happened contemporaneously with it. But, as was laid down in an American case, to be contemporaneous, they are not required to be precisely concurrent in point of time. If the declarations spring out of the transaction-if they elucidate it-if they are voluntary and spontaneous, and if they are made at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to be regarded as contemporaneous. Such declarations are admissible for, as well as against the parties.

In cases of conspiracy, riot, or other crime, perpetrated by several persons, when once the conspiracy or combination is established, the act or declaration of one conspirator or accomplice, in the prosecution of the enterprise, is considered the act of all, and is original evidence against all. But, after the common enterprise is at an end, whether by accomplishment or abandonment is not material, no one is permitted, by any subsequent act or declaration of his own, to affect the others. In fine, the declarations of a conspirator or an accomplice are receivable against his fellows only when they are either in themselves acts, or accompany and explain acts for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.?

The declarations or admissions of an agent, in reference to the business of his principal in which he is at the time employed, and within the scope of his authority, are admitted in evidence against the principal, provided they are part of the res gesta.

1 Mitcham vs. The State, 11 Ga., 615.

* Greenleaf, Vol. I. § 233.

Exceptions. There are certain exceptions to the rule that hearsay evidence is not admissible:

(1) Dying Declarations are, under certain circumstances, admitted in evidence. Eyre, C. B., in giving the reason for this, said, "that the general principle, upon which evidence of this kind is admissible is, that it is of declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by an oath in court."1

The statements of the deceased must be such as would be admissible, if he were alive, therefore opinions of the deceased will not be receivable.

Again, the deceased must be a person competent to testify; so, where a person was incompetent from infamy, lunacy, religion, or tender age, the declaration would not be admissible.

The witness, being competent, certain other things are necessary before the dying declaration can be received:

First. It must be proved by the party offering the evidence that the declarations were made under a sense of impending death. This may be proved in any way: by his statements, conduct, or other circumstances going to show the state of the declarant's mind.

Second. The declaration of the deceased is admitted only in the case of homicide, where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration.

(2) Testimony on former Trial. The testimony on a former trial of a witness, subsequently deceased, is re

1 Woodcock's Case, 1 Leach, 502.

ceivable, and may be proved by the testimony of a person who heard it, or by notes made at the time.

The party must be able to swear that his minutes contain the substance or the whole of the evidence given by the witness, even though he is not able to swear that it contains the exact language used by the witness, or every word spoken by him.

If the witness testifies from memory he must be able to give the substance of the testimony.