Commonwealth v. Densmore , 94 Mass. 535 ( 1866 )

Bigelow, C. J.

The rulings of the court, rejecting the evidence offered in behalf of the defendants as set forth in the exceptions, were clearly right.

1. The declarations of the deceased, on whom the homicidal assault is alleged to have been committed, came within the class or description denominated hearsay evidence. Nor were they made under such circumstances as to bring them within the exceptions to the rule which excludes such evidence as incompetent. They were not uttered so nearly contemporaneously with the principal fact as to constitute part of the res gestee. They were uttered several hours after the assault was committed, and were in the nature of a narrative of a past transaction. Lund v. Tyngsborough, 9 Cush. 36. Commonwealth v. Hackett, 2 Allen, 136. They were not shown to have been made in the consciousness and expectation of approaching death, so as to be admissible as dying declarations. Nor were the statements of a nature to be properly designated as declarations of a party made in derogation of his right and against his interest, which the Commonwealth are endeavoring by this prosecution to assert and maintain. In the first place, such declarations to be admissible as evidence must be such as to contravene the pecuniary interest of the party making them, or to disparage some title or interest in property of which he was in possession when they were uttered. We are not aware that the exception has ever been extended further, so as to render competent declarations which are not otherwise against the interest of the party who made them, except that they tend to throw on himself some degree of blame or criminality in relation to a particular transaction, and to exonerate others therefrom. No case was cited by the counsel for the defendants, nor do we know of any authority, which gives countenance to any such extension of the exception, by which hearsay evidence is deemed to be admissible. On the contrary, all the appro red text writers state the exception with the limitation above expressed. Rose. Grim. Ev. 26. 1 Stark. Ev. (4th Amer. ed.) 45. 1 Greenl. Ev. § 109.

But, aside from this, we do not see that the deceased stood in any such relation towards the Commonwealth as to render his declarations admissible as evidence. It cannot be properly said that in the prosecution of offences, mala in se, the Common wealth asserts a private right or maintains an individual interest, in any such sense as to be affected or bound by hearsay statements of those who may have been the victims or objects of a criminal act on their property or person. There is no such legal identity or privity between them and the Commonwealth as to render their statements admissible in behalf of those who are charged with the commission of a crime.

2. Evidence of the conversation which took place in the presence of the wife of the deceased does not appear to have been competent. The only ground on which it could in any view have been admissible was, that it tended to contradict the testimony which she had given upon the trial. But the statements of third persons in her presence could not be let in for this purpose, unless they were such as to call for some reply from her, or necessarily to lead to the inference that silence on her part was an implied assent to the facts stated in her hearing. There is nothing in the exceptions to show that the declarations offered in evidence were of this character. Commonwealth v. Kenney 12 Met. 235. Larry v. Sherburne, 2 Allen, 35.

3. We cannot see that evidence that the deceased had, previous to the night on which the affray took place, been frequently called up at a late hour for the purpose of selling liquors was at all relevant or material to the issue.

Exceptions overruled.