murder of Edmund, and he did not wish to die with a lie in his mouth, etc. The counsel for the accused claimed that it was competent for the prisoner, under the circumstances, to show that another committed the murder; and that in this view the declarations of Sam should have been received, as they tended to inculpate him, as well as to show that the prisoner was not the offender. ORMOND, J., in delivering the opinion of the court, said: "Conceding the true meaning of these declarations of Sam in jail to be an admission of his own guilt, and that he had killed Edmund himself, it does not vary the case in the slightest degree. * ** The declaration of Sam was not an act within the meaning of the doctrine I have been discussing. * * * To give effect to the mere declarations of third persons would be a most alarming innovation upon the criminal law. Such a declaration would not be obligatory on the person making it. He might afterwards demonstrate its falsity when attempted to be used against him. Such testimony may be a mere contrivance to procure the acquittal of the accused." In West v. State, 76 Ala. 98, the question was again before the highest court of the same state, and it was held "that the admission of a third person that he committed the offense with which the accused was charged, not made under oath, though on his death-bed, is mere hearsay, and is not admissible as evidence for the accused." In Sharp v. State, 6 Tex. Ct. App. 650, it was held no error to refuse to allow a witness for the defense to testify that certain other men confessed that they committed the crime. A similar ruling was also sustained in Rhea v. State, 10 Yerg. 258. Greenfield v. People, 85 N. Y. 75, was an indictment for murder. Upon the trial the accused offered the letter of one Royal Kellogg to his brother, in which, after alluding to the murder, he said among other things: "If they want me, they can come and get me;" and, in connection with the above and certain anonymous letters containing confessions, they offered the declarations of Kellogg and his brother and another person, made within an hour after the murder, and at a place three-fourths of a mile distant. The witness, being awakened at the barking of a dog at about 4 o'clock in the morning, on looking out of the window, recognized the two Kelloggs and one Taplin, and they had a gun and a bag, etc. The witness, after giving in detail their suspicious actions at this place, offered to prove that Taplin said to the Kelloggs on that occasion before they left: "You are damned fools to do it;" and that one of the Kelloggs replied, "If we had not done it, we should all have been hung." MILLER, J., in delivering the opinion of the court, said: "Even if this letter could be regarded as a confession of Kellogg that he committed the murder, it was only the declaration of a third party, merely hearsay testimony, and upon no rule of evidence admissible. If such declarations were competent upon any trial for homicide, they would tend to confuse the jury, and to divert their attention from the real issue. The letter did not tend to establish that Kellogg committed the offense, was not a part of the res gestæ, and in no sense relieved the prisoner from the charge for which he was upon trial, or raised any presumption that Kellogg was the guilty party. Confessions of this character are sometimes made to screen * offenders; and no rule is better established than that extrajudicial statements of third persons are inadmissible. Whart. Ev. § 644; Whart. Crim. Law, §§ 662, 684; 2 Best, Ev. §§ 559, 560, 563, 565, 578. While evidence tending to show that another party might have committed the crime would be admissible, before such testimony could be received there must be such proof of connection with it, such a train of facts or circumstances, as tend clearly to point out some one besides the prisoner as the guilty party. Remote acts, disconnected and outside the crime itself, cannot be separately proved for such a purpose. In considering the question we have carefully examined the numerous authorities cited to sustain the position that the evidence was competent, and none of them hold that under such circumstances it could lawfully be received; and it was neither admissible alone, nor in connection with the letters referred to." In Whart. Crim. Ev. § 225, it is said: "Extrajudicial statements of third persons cannot be proved by hearsay, unless such statements were part of the res gestæ, or made by deceased persons in the course of business, or as admissions against their own interest, or are material for the purpose of determining the state of mind of party who cannot be examined in court. * * * Hence, on an indictment for murder, the admissions of other persons that they killed the deceased, or committed the crime in controversy, are not evidence; and evidence of threats by other persons are inadmissible. * * * On an indictment for larceny, also, declarations of third parties that they committed the theft are inadmissible." In all the numerous cases we have examined, where threats of third persons were excluded, there was no dissenting opinion in any instance; and after most diligent search we have been able to find but one case which furnishes any support to the claim of the accused. We refer to that of State v. Johnson, 30 La. 921, where the state, in a prosecution for murder based entirely on circumstantial evidence, found it necessary to trace to the accused a motive for the homicide in a previous quarrel with the deceased, when the accused while in liquor uttered threats. against the deceased; and upon cross-examination the witness for the state, who had in chief testified to the quarrelsome character of the deceased, and to the threats of the accused, was asked what other quarrels the deceased had besides that with the accused, a few days prior to the murder; and the trial court excluded it. The court of review cites no authorities, and enters into no discussion of the question upon principle, but simply says in effect that although it was of doubtful admissibility, yet on the whole they will give the accused the benefit of a new trial. But even this case can be widely distinguished from the one on trial. The state had put in issue the quarrelsome character of the deceased, and to that extent the cross-examination was pertinent; and further, the case seemed to be controlled by the question whether the motive arising out of a recent quarrel pointed exclusively to the accused. The fact drawn out on cross-examination might show that it did not, and therefore there was some force in the claim that it was admissible, in order to weaken that evidence by showing that others were also included and shared the same motive. But in the case at bar we have already called attention to the fact that the motive which moved Beaudet was entirely different from that attributed to Dougherty; and hence the evidence as to the latter in no way impaired that applicable to the former. In regard to the admissibility of the confessions of guilt by third parties in criminal trials, there is absolute unanimity in the decisions, so far as we have been able to ascertain. In Smith v. State, supra, GOLDTHWAITE, J., dissents from the majority opinion; but in so doing he expressly concedes "that the confession of a third person of his guilt is not evidence in favor of another, when standing alone, unaided by other facts and circumstances." Yet he contends that it is so whenever the party confessing is connected with the crime by strong presumptive circumstances. We find also a qualification of the doctrine in the dictum of a distinguished reporter. It is found in a note to the case of Speer v. Coate, 3 McCord, (S. C.) marg. 232, where the reporter gives a summary of the exceptions to the rule excluding hearsay evidence, and in paragraph 12 he says: "So confessions in extremis that the person himself had committed a forgery of which another was indicted, are admissible;" citing as authority Clymer v. Littler, 1 W. Bl. 345. The reporter then adds his own opinion: "So I should think that where a person comes forward, and confesses the crime, and surrenders himself to justice, such confessions would be admissible evidence for a prisoner accused of the same offense." It should be observed that stress is placed on the fact that the person confessing also surrenders himself to justice, implying that the confession alone would be insufficient; but we ought also to add that the principle of the case cited from 1 W. Bl. 345, which led to and suggested the proposition just referred to, owing to some oversight or mistake, was stated in an erroneous and most misleading manner. It would be supposed upon reading the note of the case that, upon the trial of one person indicted for the crime of forgery, the confessions in extremis of another person were held admissible in defense of the person on trial. But it was no such case. On the contrary, it was a mere civil action based upon a controversy between adverse claimants to property under two different wills of one Clymer, deceased. The action was ejectment. The plaintiff claimed under a will made in 1743. The defendant claimed under the heir at law by an instrument dated in 1745, very imperfect in form, but purporting to have been subscribed by Mr. Clymer, and to give the property as follows: "Whereby, in consideration of natural affection, he covenants and agrees," but with nobody, "that the lands in question shall go and be given to his wife for life, and then to Elizabeth, wife of William Medlycott," she being also his heir at law, "and her heirs, forever." It was attested by the said William Medlycott and Elizabeth Mitchell. The first will was concealed, and William Medly cott took possession under the last one in right of his wife; but on his death-bed, in 1746, he declared that the instrument of 1745 was forged by himself; and he produced from under the bedclothes the first will, of 1743, and caused it to be sent to the parties interested, who had it proved, and who then brought this suit; and this evidence, without any objection, went before the jury in connection with the in spection of the two wills, and verdict was rendered for the plaintiff. Lord MANSFIELD, in giving the opinion of the court on this point, simply says: "The testator died in 1746; both wills in the custody of Medlycott; the other subscribing witness dead; his wife to be benefited under it; he, on his deathbed, sends the lessor of the plaintiff his title, which is inconsistent with that under which the defendant claims. Under all these circumstances I think it admissible evidence. No general rule can be drawn from it. No objection was made to its production. It came out, it seems, on the cross-examination of the defendant's counsel. Unless, therefore, manifest injustice had been done on the whole case, there is no ground for a new trial. Here appears to be good reason for the verdict." A further criticism of the proposition referred to may be found in 2 Phil. Ev. (4th Amer. from 7th London Ed. Carver & Hill's Notes,) p. 703, note 493: "And if an actual surrender should make the declaration admissible, it would at once throw open the door for fraudulent testimony, even in exculpation of the most atrocious criminals. The self-accuser is yet to be tried, and he may act under the full consciousness of having such clear proofs of his own innocence-an alibi, or some other evidence-that he would be risking but little by doing the whole as an act of solemn trickery in behalf of his friend. The surrender would not estop him. Even should the people prosecute, convict, and execute him as the sole malefactor, the verdict would not estop them, nor be any evidence whatever against the first accusation. It would be res inter alios." There was no error in the ruling complained of. (The other judges concurred.) SEYMOUR v. OVER RIVER SCHOOL-DIST. (Supreme Court of Errors of Connecticut. October Term, 1885.) STATUTE OF LIMITATIONS-ADVERSE POSSESSION-EVIDENCE-DECLARATION OF PARTY IN POSSESSION. The adverse character of the possession is ordinarily, if not always, shown by the facts of the case, and does not receive its character from the declarations of the party in possession, except when such declarations may be regarded as res gesta; 'consequently, as the mere declarations of a party cannot be admitted in his own favor, it follows that the absence of such declarations cannot be shown by the adverse party against him.1 CARPENTER, J. From a careful analysis of the facts of this case it appears that the record title to the land on which the school-house stands is in the plaintiff. The building itself was constructed and paid for principally by the proprietors of the academy, in 1804; the school-district contributing to the funds of the academy the sum of $127, being the avails of the sale of the old school-house. The equitable title to the building therefore seems to have been originally in the proprietors; and is now in their heirs, unless one of the parties to this suit has acquired 1 Respecting the statute of limitations, and adverse possession of land, see Locke v. Whitney, (N. H.) 3 Atl. Rep. 920, and note, 921, 922. title thereto by adverse possession. It is proper to remark, however, that the controversy relates solely to the upper room in the building; it being practically conceded that the district has been in possession of the lower room, under a claim of right, since 1807. On the trial both parties claimed title to the upper room by adverse possession; the plaintiff claiming partly under Miss Leavenworth, who occupied said upper room for a private school from 1832 to 1876. The following quotations from the record will serve to show what the questions are which we are called upon to decide: "During the trial of said cause, the plaintiff having offered evidence of the adverse occupation by said Miss Leavenworth and others, the defendant, for the purpose of characterizing such occupation, and to show that it was not adverse to the defendant, called as a witness Thomas D. Elwood, who testified that he had taught said district school since 1864, excepting two years, and defendant thereupon asked said witness the following question: During that period, did you ever hear that the Congregational Society pretended to have any claim or right of ownership of the building and grounds, occupied by the school until 1883?' Plaintiff objected to, and the court admitted, said question, and said witness answered: I never did, in any shape or manner.' * * * The following question of said witness was objected to by plaintiff, and admitted by the court: What did Mr. Hart (the pastor before referred to) say to you, if anything, respecting the necessity of the district making repairs to the building?' Answer. Mr. Hart said to me, “I think the district should go to work and repair that roof; if not, you will have to have an umbrella down there before long."" "Of the defendant's witness Charles H. Taylor, who testified that he was 54 years of age, and had resided all his life in Westport; that he had attended Miss Leavenworth's school; had been two years treasurer, and six years committee of said district, prior to 1883,-defendant asked the following question, which was received against plaintiff's objection: During all that time, did you ever hear that the plaintiff made any claim or right of ownership to the school-house and yard until last year?' Answer. I did not.' Against said objection of the plaintiff, said witness further answered: I never heard of Miss Leavenworth making a claim of ownership until the record of this deed.' [Deed from Miss Leavenworth to the society, December, 1882.]” Similar questions were put to, and similar answers obtained from, other witnesses. Possession It is difficult to vindicate the reception of this evidence. does not receive its adverse character from the declarations of the party in possession, except when such declaration may be regarded as res gestæ. The mere declarations of a party cannot be admitted in his own favor. It follows that the mere absence of such declarations cannot be shown by the adverse party against him. A party is not bound to make public proclamation that he holds adversely, therefore whatever he says or omits. to say is a matter of no importance, unless he speaks against his interest, or fails to speak when required to do so. The adverse character of the possession is ordinarily, if not always, shown by the facts of the case, and not from loose and casual declarations. Therefore the absence of auch declarations has no tendency to prove that the possession is not adA corporation usually speaks by its agents authorized to speak for it, and through its vote and acts. Here the absence of rumor in the verse. |