Hunt v. People , 3 Park. Cr. 569 ( 1867 )

Clerke, J.

The defendant was indicted at a Court of General Sessions, for effecting an abortion upon one Hannah Lawson, by which she became mortally wounded, and, in consequence, languished and died.

It was proved at the trial, by Ann Armitage, “ that she went to defendant’s place of business; that she stated to one Ann Dalton, in the defendant’s presence, that she was going to see a friend of her’s who was in trouble; that Dalton asked her what trouble, to which she replied that her friend was pregnant; that defendant Hunt then said that ‘ he would relieve her friend of her difficulty for twenty-five dollars.’ ” The district attorney subsequently proposed to show by this witness that she detailed the conversation to the deceased Mrs. Lawson; that, in consequence, Mrs. Lawson and the witness returned immediately to the place of defendant, and that defendant operated on the deceased with an iron wire, which was produced.

The counsel for the prisoner objected to the fact of the conversation between the deceased Mrs. Lawson and the witness, in the absence of the defendant Hunt. The court overruled the objection, and allowed the fact of such conversation, but not its details, to be given; to this decision the counsel for the prisoner objected.

If the judge meant that the witness should testify merely that a conversation had taken place between Lawson and the witness, we cannot see on what grounds the counsel could have presented even the color of an objection, except that, as the conversation between her and Hunt had been previously detailed, that the effect produced on the jury was the same as if she was allowed to repeat it, as she had afterwards communicated it to Mrs. Lawson. But, we are strongly inclined to think, even if the judge had allowed this, there would have been no error. The conversation referred to in the objection was merely a communication by the witness to Mrs. Lawson that Hunt said “ that he would relieve her of her difficulty for twenty-five dollars.” There is no proof, to be sure, that Hunt authorized the witness, in positive terms, to give this information to Mrs. Lawson; but he declared, in the presence of Mrs. Armitage, her friend, who was describing “ her trouble,” that he would relieve her for a certain compensation, and he certainly imposed no silence on Mrs. Armitage in relation to the subject, but, on the contrary, by the terms of the proposal itself, he must necessarily have designed that it should be conveyed to the person who was to accept or reject it.

But, although the conversation (if that can be called a conversation, which, in fact, was only the repetition of what the defendant had said) was perfectly admissible, yet it was, practically, of very little importance in the present case whether it was admitted or not. The offence was clearly proven, and could have been as clearly proved with or without- any portion of the conversation first detailed or afterwards repeated. The same witness proved that Mrs. Lawson “went to the place of defendant, and that defendant operated on the deceased with an iron wire,” which was produced at the trial. This was, of itself, abundantly sufficient for the jury, without the necessity of referring to anything that had been previously said or done.

The next objection urged before us by defendant’s counsel is, that Ann Dalton, who was called on behalf of the defendant, testified, without objection by the district attorney, to a conversation she had with the deceased a day or two before her death ; during which the deceased informed her that her illness was caused by a miscarriage, and that the miscarriage had been brought on by natural causes. This was received for the benefit of the defendant as the declaration of the party alleged to have been injured; the district attorney not insisting upon the right to have it shown that at the time she made the declaration she thought she could not recover. He had a right to dispense with this if he had a right to insist upon it, and his dispensing with it was nothing more than a consent that the declaration should go to the jury for what it was worth, with the same effect as if it was shown that it was the declaration of a person conscious of approaching death. Had not the district attorney, on the other hand, the right to rebut the effect of this testimony, by showing the state of mind of the deceased at the time she made the declaration ? The defendant’s counsel insists that, although the declaration was introduced by himself, for the benefit of his client, still as it was error to receive the declaration of a third party, without showing that she believed she was dying, it is a double error to attempt any refutation of the declaration, and that the whole should be expunged. This was not collateral testimony; it was direct; it tended to show whether the operation produced the death of Mrs. Lawson, and it was one of the issues in tjie cause. Even if it were improper as hearsay testimony, without showing that the declarant believed that she was about to die, yet, as the district attorney, by withholding his objection, recognized it as proper evidence, and as the defence introduced it as proper evidence, the verdict cannot be disturbed on the ground that the declaration was hearsay evidence, and although it went to the jury the disproof of it was not admissible. But it is very doubtful, even if the district attorney had objected to the declaration on the ground to which I have referred, whether the objection could have been sustained. The declaration did not relate to any previous occurrence to which Mrs. Lawson could testify as a witness at the trial; but she spoke of the state of her health and the nature.of her distemper. The representations of deceased persons as to the state of their health, where relevant to the issue, have been frequently received, without proving that they were made under the belief of approaching death. (Aveson v. Lord Kinnaird, 6 East, 188, 198, 1 Phil. Ev., 233.) The judges held the evidence unexceptionable on general principles, as the account of the deceased person concerning her existing state of health, which was the subject of inquiry. So, inquiries by medical men, with the answers to those inquiries, are evidence of the state of health of the patient at the time. What a man has said of himself to his surgeon is evidence in an action of assault and battery to show what he has suffered in consequence of the assault. In an action for breach of warranty of the soundness of a slave, his declarations, that he had a pain in his side, by which the disease was detected, were held to be admissible. (Grey v. Young, 4 McCord, 38.) These and several other cases which could be quoted, stand on the doctrine of res gestee. In fact, it is an elementary principle in the law of evidence that the representations of a sick person, of the nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence. They are not comprised within the definition of hearsay evidence. (1 Greenl. Ev., § 102.)

The judgment of the General Sessions should be affirmed.

Peabody, J.

I do not know that I should agree with nay learned brother that the statement of deceased was admissible as evidence, if it had been objected to. I think that I should not, but should consider it inadmissible. The statements of persons as to their feelings or health are, as is shown by the cases cited by him, often admitted as evidence to show the state of health at the time of speaking, many of the symptoms and indicia of which can only be ascertained by communication from the patient. Such, for instance, are the sensations at the moment of the inquiry, as a pain of a peculiar kind, or in one or another part of the sufferer, as to which the statements of the party, like his actions and movements in reference to it, are deemed to be somewhat involun- ■ tory, and therefore truthful, and for this reason, as well as from the necessity of the case, are admitted as evidence of the facts stated. But it is only as to the then present state of the party or his feelings that that kind of evidence is admissible. In this case the deceased undertook to state a fact occurring sometime before, and that not even a matter of her own personal experience which would in its own nature necessarily be known only to herself, but to tell what, occuring at a previous time, had produced the then present state of her health; and, as to this matter, I think that her declarations were not admissible on any ground, unless made in extremis, which this was not.

I concur with him, however, in the result to which he has arrived.

Mitchell, J.

I am of opinion that when one party has introduced improper evidence, the court may allow his opponent to meet it, either by contrary or explanatory proof, or other matter of fact, or by denying its legality; especially if the party who introduced the proof does not withdraw it. The members of the court do not disagree as to the rule of law governing the admission of declarations of a party as to the state of his health : that they are confined to his conditian at the moment of speaking, and cannot be extended to past matters. As to the former, they are presumed to be necessarily without design, and as truthful as the involuntary motion of the hand to the aching head or the painful side, or the gentle sigh, the heavy groan or the falling tear. The exclamation of the Shunamite boy ^(a), when, overcome with the heat in the harvest field, he said to his father, “ My head, my head,” and was carried home and died, was as satisfactory evidence of his suffering as his own testimony in court would have been.

Judgment affirmed.

(a) 2 Kings, ch. iv., v. 19.