Page:The New International Encyclopædia 1st ed. v. 07.djvu/363

* EVIDENCE. 315 EVIDENCE. many matters of evidence logically relevant and of considerable probative force are still not legal h admissible evidence because of their supposed tendency to 'confuse ami mi dead the jury.' I. The rule of first importance in the law of evidence is that il musl be relevant in order to be legally admissible. Kelevancy depends directly or indirectly on the issue raised by the pleadings. Thus, evidence of a fact may he relevant because it tends directly or indirectly to prove or dis- prove the fact in issue that is affirmed by one side and denied by the other ; or the evidence may be relevant because it tends to prove or dis- prove some matter of evidence already intro- duced by the other side for the purpose of prov- ing or disproving the issue raised by the plead- ings. But, as has been pointed out, all logically relevant evidence is not legal evidence. Thus evi- dence which is logically relevant may not be legal- ly admissible because: (a) Its relevancy is slight Or remote. Thus evidence that the defendant was insolvent at a certain time is not admissible to prove that he borrowed money of the plaintiff at that time. (b) The evidence is of collateral transactions, or (as is sometimes said) res inter alios acta. Thus, in an action to recover damages for negligence it is not permissible to show that the defendant was negligent toward others than the plaintiff, or on trial of a defendant for steal- ing, that he stole from others. The general rule is, however, subject to many limitations and modifications more or less arbitrary. Thus it is permissible to show, in an action of tort, brought to recover for injuries caused by a defective ap- pliance belonging to the defendant, that others were injured by it in a similar manner, and, gen- erally, value of land may be shown by proving the selling price of other land similarly situated. A full consideration of these limitations and modi- fications is not within the scope of this article. So far, however, as they may be said to rest on any settled principle, their extent now depends upon whether there is other more available and satisfactory evidence, and to some extent upon the discretion of the trial judge. The character of a party to a civil action is not regarded as relevant, and is, therefore, not the subject of evi- dence, unless the character is directly put in issue by the pleadings, as in an action for libel. In a criminal trial, however, the defendant may. if he so elects, introduce evidence of his char- acter, which evidence the prosecution may then rebut. II. Hearsay. What others than the witness have said before the trial is not generally ad- missible in evidence because not sworn to. and because not subject to cross-examination. This rule, known as the 'hearsay-evidence rule,' is subject to several important exceptions: (a) Ad- missions and confessions. — Statements, either oral or written, made at any time by a parly to an action or by his predecessor in interest, may be introduced in evidence against him. but not by him or in his favor. The rule is based upon the inherent probable truth of statements which are prejudicial to the interests of the party making them. Under the rule as to predecessor in inter- est, the admissions of a deceased person are ad- missible in evidence in actions against his exec- utor, or admissions as to the title of real estate made by its then owner are admissible in an ac- tion founded upon the title brought against his subsequent grantor. Admissions made by an Vol. VII. — 21. agent « it bin I he scope i i ad- missible in e idence pi incipal. < Ion- fessions are -trictly admissions madi cha rged « ii b a crime, and, beca u hi sity of safeguarding one cha rj are not admissible when obtained by mean threats or promises oi favor. This rule has been extended by statute in manj ol i he V| -- (l>) Reported Testimony in u Prior Trial. — In genera] the testimony of a witnes in an earlier trial between the same parties and relating to the same issues, or between parlies identical in interest with the parties at the present trial, may be introduced in evidence h the witne is dead, insane, unable to attend the trial, out of the jurisdiction, or kept from appearing at the trial by an opposing party. The testimony in the ear- lier trial must have been sworn to and subject to cross-examination, thus obviating the usual objection to hearsay evidence. (c) Dying Declaration. — Declarations made by a person in extremis are admitted in evidence upon the trial of one charged with the crime of homicide, either in favor of the prosecution or the prisoner. See Declaration, Dying. (d) Admissions Against Interest. — These should not be confused with admissions (see above). They are admissions in any form against finan- cial or proprietary interest of the person mak- ing them and made by one who, at the time of trial, is dead. Unlike admissions, they need not be made by one having some < met ion with the party to the action. They must, of course, in themselves be relevant to matters in issue at the trial. Thus an indorsement written on a note by the holder that a part of the note is paid, or a book entry that a bill has been paid, or a state- ment that the declarant is a tenant (rather than the owner), are all admissions against financial or proprietary interest, and are admissible in evi- dence upon proper authentication if relevant, and if the declarant be dead. (e) Boole Entries. — Book entries or reports made pursuant to a legal duty or in the usual course of business by one since deceased having per- sonal knowledge of the matter so entered or re- ported are admissible in evidence to prove the truth of matters contained in the entry. Thus the book entries of clerks or written reports of officers are admissible in evidence under this head, but not the entries in a diary, because not made pursuant to a duty. Closely related to the rule as to entries made in the course of business is the so-called shop-book rule. This rule varies considerably in different juris- dictions, but the effect in all is substantially to allow a party to an action, although present at the trial in person, to prove an account by intro- ducing in evidence his book of account. He is usually required to make preliminary proof that he is engaged in the business in which the charges in the book are made, and that be has made cor- rect entries. A witness may always be allowed to refresh his memory by referring to memoranda or book entries ; in that case the memoranda or book entries are, however, not directly in evi- dence, and the jury may rely only upon the wit- ness's oral testimony. (f) Res Gestm. — Any statement made at the time of the happening of an event by one who was then present may be introduced when the event itself is in issue or relevant. Such evidence is admitted on the theorv that the