Wilson v. Boerem , 15 Johns. 286 ( 1818 )

Thompson, Ch. J.

delivered the opinion of the court. Assuming that Brown would have been a competent witness, had he been living, and admitting that he was in ex-tremis, when the declarations were made which were received in evidence, (of which, however, there is very great doubt,) the only question in the case is, whether such declarations were at all admissible. No case, "either in the Fpg'lish courts or in our own, has fallen under my observatian, where such evidence has been admitted in -acivil suit. Such testimony is inconsistent with two fundamental rules (in the law of evidence. It is mere hearsay, not under oath, and no opportunity is given for cross-examination; and writers on the law of evidence have, I apprehend, either fallen into a mistake, or been a little unguarded, in laying down the rule relative to the admission of the dying decíaration of a person, even in criminal cases. Phillips, in his Treatise, (p. 200.) says such evidence is constantly admitted in criminal prosecutions, and is not liable to the comtaon objection against hearsay evidence. If he means to be understood, that this is a general rule of evidence in criminal prosecutions, he is not supported by any adjudged case. It is, I apprehend, confined to the single case of homicide ; and so it seems to be considered by East; in his Crown Law. (vol. 1. p. 253.) “ Besides,” says he, “ the usual evidence of guilt in general cases of felony,” there is one kind of evidence more peculiar to the case of homicide, which is the declaration of the deceased, after the mortal blow, as to the fact itself, and the party by whom it was committed. Evidence of this sort is admissible, in this case, on the fullest necessity. For it often happens, that there is no third person present to be an eye witness to the fact, and the usual witness, on occasion of other felonies, namely, the party injured himself, is got rid of. Whatever might have been the ground on which this kind of evidence was first admitted, in cases of homicide, we find it has long been an established rule in such cases, and, I may say, in such cases only. For wherever this rule is recognized by elementary writers, the eases referred to in support of it will be found to be those of homicide only. (Stra. 499. 2 Leach. 569. 638. 12 Vin. 118. 1 East’s C. L. 353.) Baron Eyre, in Woodcock’s case, considers it an exception to the general rule, which requires that witnesses should be examined in. open court on oath, and an opportunity afforded for cross-examination.

Phillips, (p. 201.) in treating of this rule in criminal proceedings, says, the same kind of evidence is admissible in civil cases, as well as in trials for murder. But he is not' supported by any of the cases referred to, or by any other adjudged cases, that I have found. Wright, ex dem. Clymer, v. Littler, (3 Burr. 1244. 1 Wm. Blacks. 345.) has been urged in support of this rule. But a recurrence to the facts will show that the circumstances of that case were special and peculiar; and the admission of the declaration of Medljcott was not supported under this rule. Lord Mansfield, in pronouncing the opinion of the court, says, the testimony comes out on the cross-examination of the defendant’s counsel, and no objection made to it; and after mentioning the special circumstances of the case, he says, no general rule can be drawn from it; thereby expressly excluding the idea that the evidence was admitted merely as the dying declaration of Medlicott. Nor does the case of Aveson v. Lord Kinnaird, (6 East, 188.) which has also been pressed upon the court, in any measure support such a- rule of evidence. It- was an action on a policy of insurance, on the life of. the plaintiff’s wife, warranted in good health when the policy was effected, and the dying declarations of the wife, as to her state of health at that time, were' admitted; but not as declarations made, in extremis, by a person who might have been a witness, if living; for she could not, under any circumstances, have been a witness, if living. The plaintiff had produced a surgeon as a witness, to show, from his examination of her, and what she told him, that she was in a good state of health; and her account to another person of her health, at the same time, Lord Ellenborough said, was but a sort of cross-examination of the same witness. That the inquiry was upon the subject of her own health, which was a fact of which her own declaration was evidence. That such declarations are always received upon such inquiries, and must be resorted to, from the very nature of the thing. I think it may safely be affirmed, that no such rule of evidence in civil cases is to be found in practice in the English courts; with us there certainly is none such, and wherever it has been in any measure alluded to, it has uniformly been with disapprobation. That the question is still open with us, appears from the case of Jackson v. Vredenburgh, (1 Johns. Rep. 163.) where it is said, that it will be unnecessary to determine whether, under any and what circumstances, the declarations of a competent witness, in articula mortis, can be introduced as legal evidence in a civil cause. In Jackson v. Kniffen, (2 Johns. Rep. 35.) Mr. Justice Livingston says, if the declarations of dying persons are ever to be received in evidence, (on which, if res integra, much might be said,) yet, in civil cases they never should be admitted. In Capron v. Austin, (7 Johns. Rep. 96.) it is said, that the law requires the sanction of an oath to all paroi testimony. It never gives credit to the bare assertion of any one, however high his rank, or pure his morals; and it is fairly to be inferred from this case, that the court meant to say, that decíarations in extremis were inadmissible evidence, except in the single case of homicide. Having an opportunity to» cross-examine a witness is a high and important right, and ought not to be violated, except from the most imperious necessity; and I am persuaded, that neither principle nor policy requires the adoption of any such rule of evidence in civil cases. The dying declaration of Brown, in the case before ns, ought not, therefore, to have been admitted in evidence. The verdict must, accordingly, he set aside, and a new trial awarded, with costs, to abide the event.

Judgment reversed.