Page:The American Cyclopædia (1879) Volume VII.djvu/14

 EVIDENCE prove themselves. The presumption in such cases is that the subscribing witnesses or others by whom proof of execution is ordinarily made may be dead, but the rule is the same even if such witnesses are actually living. In offering such a deed in evidence, however, it is neces- sary to give some account of the custody of it, and to show that possession has been consis- tent with its provisions, so as to rebut any sus- picion in respect to its genuineness, d. An infant under the age of seven years is conclu- sively presumed to be without discretion. Be- yond that age it will be a subject of proof whether he is doli capax, but prior to that time no inquiry is permitted. So an infant under the age of 14 is presumed incapable of com- mitting a rape, though in fact there are in- stances of sexual capacity before that age. So and impotency is not proved, the issue will be presumed legitimate, although it should be proved that the wife has during that time com- mited adultery, e. By the common law, if a wife do any act in the presence of her husband amounting to felony, other than treason or murder, she is presumed to have been under coercion, and therefore not criminally liable. This presumption, however, is allowed but limited force in the United States. The second class of cases includes two rules which were formerly of very frequent application, a. What is called hearsay evidence is inadmissible. By this is meant that a witness should not be per- mitted to testify what he has heard another person say, but only what he knows himself. To this rule there are some qualifications ra- ther than exceptions. Thus it is sometimes proper to prove what was said by a person at the time of performing a certain act, as having some tendency to explain the intent, and there- fore admissible as a part of the res gestcB, ac- cording to legal phraseology. In such a case, however, what was said does not strictly come under the designation of hearsay, but is itself a principal fact. So also it is admissible to prove what has been said by a party to an action. This again is a principal fact, or at all events comes under the designation of declara- tions or admissions, and as such is admissible. So it is permitted in cases of homicide to prove dying declarations, that is, what is said by the murdered person shortly before and in expec- tation of death. This is not unusual in trials for murder, and is competent evidence, both to show the manner of the death and who was the murderer; but it must be strictly con- fined to the homicide, and to facts which it would have been competent for the party to have testified to had he survived. The tes- timony of a witness on a former trial may also be proved on a second trial, in case of his de- cease prior thereto. Again, witnesses are al- lowed to testify to matters of tradition in respect to old boundaries of estates. The rule in England is limited to cases in which some public right is involved, as when a right of common is in question ; but in the United States it has been allowed in many cases where the lines of large tracts of land became mate- rial in determining the limits of smaller estates. The traditional evidence, as it is called in such cases, consists of proof of what has been said long since by persons who may be supposed to have had some personal knowledge, or to have heard from others who had such knowledge. Pedigree, including the facts relating to birth, marriage, and death, may also be shown by proof of what has been said by members of the family or relatives of the person whose paren- tage or relationship is in question. Many other illustrations could be cited, but these will suffice. It should be remarked that upon the same principle by which the kind of evidence last referred to is admissible, other modes of proof, which are ordinarily classed under hearsay, though they in fact belong to that species of evidence in no other sense than as above ex- plained in respect to oral testimony, are admit- ted, such as a family register, inscriptions on monuments, and the like. But with the ex- ceptions, if they may be so called, which we have specified, hearsay evidence is wholly and absolutely excluded by the English law. The reasons usually given for this exclusion are its uncertain and untrustworthy character, the endless prolixity to which it would lead in the attempt to sift facts in judicial proceedings, the ease with which it might be manufactured for the occasion, and the probability that better evidence is attainable. 5. Another rule relates to the competency of witnesses, and it has been more prolific of subtle distinctions and perplexing questions than any other rule in the law of evidence. A chief ground of ex- clusion was formerly interest in the subject of the action. The theory was that there is an inevitable tendency to suppress or pervert the facts under the influence of a supposed interest in the result. This of course con- stituted a proper exception so far as respects credibility ; but instead of receiving the testi- mony subject to a proper discrimination as to its effects, courts relieved themselves of all em- barrassment in determining its relative weight, by wholly excluding the testimony of an inter- ested witness. Under this rule not only the parties to the action, but all persons having an interest in the result, were, as a general rule, adjudged incompetent to testify. In determin- ing, however, the nature of the interest which should constitute a disqualification, it was found exceedingly difficult to fix precise rules of gen- eral application, and much confliction was in- volved in the decisions. Finally it was settled that the interest must be a direct gain or loss by the operation of the judgment in the action, or that the record would be evidence for or against the witness in some other action. But no interest other than pecuniary was sufficient to exclude, and therefore near relatives might testify for each other even in the most serious cases, and where the temptations to shield them
 * vhen husband and wife are living together