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The Green Bag

doing business in any state. Mr. Justice Pitney delivered the opinion of the court. A dissenting opinion was delivered by Mr. Justice Day, Justices Hughes and Lamar also dissenting.

Justice Pitney, Holmes, Lurton, and Hughes, JJ., dissenting. The New York Law Journal, discussing the decision editorially (May 9, 1913), speaks of the tendency to restrict dying declara tions, and believes the majority to have taken the correct view, notwithstanding the arguments given by Mr. Justice Holmes and the reasoning of Professor Wigmore (Wigmore on Evidence, sees. 1476, 1477). "Under present conditions we believe the average criminal, although not expecting to live, if he elected to speak at all, would not hesitate falsely to accuse an enemy or to take upon himself the responsibility for an independent crime in order to exonerate a friend. This species of evidence should be excluded, either against or in favor of a criminal defendant."

Criminal Law. Conviction through Decoy. U. S. In United States v. Healy, in the United States District Court, D. Montana (February, 1913, 202 Fed. Rep. 349), a conviction of crime was set aside on the trial court's own motion because it had been procured through a decoy or trap. The Court said: — "In this case the Court, of its own motion, vacates the sentence and judgment, sets aside the verdict and discharges the defendant. The conviction was for a felony, an unlawful sale of Wills. The "End" of a Will. N. Y., Mass. intoxicating liquor to an Indian, contrary to Act Jan. 30, 1897, c. 109, 29 Stat. 506." The What is the "end" of a will was under con Court referred to the fact that the evidence had sideration by Surrogate Fowler in Matter of been obtained by a purchaser acting as a decoy, Peiser, reported and discussed in the New York there being nothing in his appearance to betray Law Journal of March 11. The Xew York the fact that he was an Indian, and continued : — statute requires that a will shall be signed at its "Decoys are permissible to entrap criminals, end. The maker had taken an ordinary twobut not to create them; to present opportunity sheet foolscap, consisting of a single sheet of to those having intent to or willing to commit paper folded so as to make four pages. He crime, but not to ensnare the law abiding in began to write his will on one of the outside unconscious offending. Where a statute, as pages and continued it on the other outside page, here, makes an act a crime regardless of the and then went back to the inside of the first actor's intent or knowledge, ignorance of fact is page, where he finished it, and signed his name, no excuse if the act be done voluntarily; but and had it attested by witnesses, in accordance when done upon solicitation by the Govern with the law. ment's instrument to that end ignorance of fact The will was held to be valid, notwithstanding stamps the act as involuntary, and excuses, or the fact that the middle part of it was on the at least estops the Government from a convic back of the second sheet, and the beginning and tion. . . . ending part of the will were on the obverse and "In the case at bar the act is innocent but for reverse of the first sheet. (Discussed in National the status of the solicitor, and because he is a Corporation Reporter, Apr. 24, p. 397). decoy of concealed disability the act is blameless, A similar result was reached by the Massachu and there is estoppel against conviction. Were it setts Supreme Judicial Court Apr. 8. The otherwise honest men could easily be made question whether the will of the late Charles H. felons. Many of the Government's Indian wards Pratt was properly executed was submitted to the are not distinguishable from Caucasians." (Dis jury, which decided it to have been properly cussed in New York Law Journal, Apr. 4.) signed. The testator had executed the will by signing it in the margin of the next to the last Evidence. Hearsay Rule — Extrajudicial page, or the last page of the will proper. He had Confession of Third Person Incompetent. previously signed the margins of the other U. S. pages for identification. Three witnesses signed their names at the bottom of the will on the The extrajudicial confession of a third per son, since deceased, that he had committed a fifth page, witnessing testator's signature in the murder with which the accused was charged, margin. A few moments after they had retired, was held to be inadmissible in evidence in behalf they were recalled. They saw Pratt sign the of the accused, in Donnelly v. V. S., 228 U. S. will again in the usual place at the end. But 243, 33 Sup. Ct. Rep. 451, decided Apr. 7. The they did not legally witness this signature by opinion of the Court was delivered by Mr. again signing their own signatures.