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qualifications of Mrs. Northrop come fully up to these from tracing their birth to a source which is deemed requisitions ?

criminal by law." Cooley v. Dewey, 4 Pick. 95. Hence Iu Goodright v. Moss, Cowp. 591, the declarations of bastards were said by the common law to be the parents were held admissible, after their decease, to "children of nobody," and could not transmit by prove that their son was born before their marriage descent except to their own offspring 1 Bl. Com. 459; and was therefore illegitimate; and this case is not 2 Kent Com. (12th ed.) 212-13; IIughes v. Decker, 38 questioned on this point in Berkley Peerage case, 4 Me. 153, 160. And such was the law in this State until Camp. 401.

1838, when the Legislature, as have the legislatures of In Vowles v. Young, supra, a new trial was granted several other States, ameliorated the rights of illegitibecause the declarations of a husband, that his wife mate children. “This relaxation in the laws in so was illegitimate, were rejected.

many States,” says ('hancellor Kent, “of the sererity In Haddock v. B. & Maine Railroad, supra, a moth of the common law, rests upon the principle that the er's declarations were admitted to prove the illegiti- relation of parent and child, which exists in this unmacy of her daughter by showing that the mother was happy case, in all its native and binding force, ought never married.

to produce the ordinary consequence of consanguinSo where the question was whether the plaintiff's ity." 2 Kent Com. (12th ed.) 214. By the statutes of mother was the legitimate child of the ancestor, whose this State, “an illegitimate child is the heir of his land was in dispute and the record showed the latter's mother,” and “his estate descends to his mother marriage at a certain date, the ancestor's declaration when he dies intestate without issue.” R. S., ch.75, —that “unless he made a will, Louisa (plaintiff's | SS 3 & 4. mother) could get nothing," was held competent to go We are of the opinion therefore that inasmuch as to the jury on the question of her illegitimacy. Viall the relationship of sister existed between the intesv. Smith, 6 R. I. 417. See also Barnum v. Barn um, 42 tate and the declarant, and by force of the statute, Md. 251, 304.

that of mother and son between the intestate and the It would seem therefore that the declarations of tbe appellant, the declarations came literally within the intestate would be admissible to show that the appel- exception and are consequently admissible; and that lant was her illegitimate son; and if the mother's dec- the jury should be allowed to pass upon their weight, larations would be, why would not be those of the if they find they were ever made in connection with mother's sister, in whose family the child was born the other testimony in the case. and brought up, and in whicb the niother lived at the

Exceptions sustained. time and for years after ?

Peters, C. J., Walton, Danforth, Symonds and It is urged that there are some English authorities Emery, JJ., concurred. which somewhat tend otherwise.

[See Swink v. French, 11 Lea, 78; S. C., 47 Am. Rep. In Bamford v. Burton, 2 Moo. & R. 28, where one K. 277.] died seised of land, leaving none but illegitimate cbildren, to whom he willed for life this property with re

SUNDAY PROMISSORY VOTE-CONFLICT OF mainder to his own lawful heirs, who brought ejectment claiming the devisees for life to be dead; and to

Lais. prove it, offered the declarations of one of them, who bad sinco died, to prore the decease of the other, Pat

SUPREME COURT, E. D. ARKANSAS, APRIL TERM, 1884. terson, J., at nisi prius, held the declarations inadmissible on the ground that the declarant was not, in

SWANN V. SWANS.* point of law, a meniber of the family of his reputed A note made on the Lord's day, and valid by the law of the father. We also entertain tho samo opinion, and for Stato where made, will be enforced by the courts of the same reason.

another State, by the laws of which such contract would In Crispin v. Doglioni, 2 S. & Tr. 493, decided in the be void. Probate Court in England in 1863, the plaintiff claimed to be tho natural son of the intestate. To prove it he AT law. tendered the declarations of a deceased brother of the intestate. Sir C. Creswell, after remarking there was

Ratcliff & Flelcher, for plaintiff. no case in point, hold the declarations inadmissible, Clark & Williams, for defendant. saying: “The admissibility of hearsay evidence is exceptional, and ought not to be carried further than

CALDWELL, J. This suit is founded on a promissory

note, of which the defendant is the maker and the the decisions in the books, for it is a departure from plaintiff the payee. The defense is that the vote was the first rule of evidence. I can well understand that executed on tho Lord's day. The proof shows that when a matter is likely to be discussed and well known

the note was executed on that day in the State of Tenin a family, a member of the family may be allowed to

nessee, where the parties to it then resided, for the gire evidence of it; but in this case the plaintiff, ac

consideration of a valid pre-existing debt due from cording to his own account, is filius nullius, by our

the defendant to the plaintiff. There is no place of law. The question is whether a declaration of one brother may be admitted as to another brother having payment fixed in the note. had intercourse with a woman, and having had a

In Tucker r Test, 29 Ark. 386, a note executed in

this State on the Lord's day was held to be void uuder child by her;I think it ought to be excluded.” We cannot perceive any objection to this ruling. No one

the statute. This court takes judicial notice of the

laws of the several States. Owings r. Ilull, 9 Pet. 007; can pretend that it comes within the exception admitting hearsay, for the putative father has no relation

Ruilroad Co. v. Bank of ushland, 12 Wall. 226. ship with his bastard son, and hence the case is not ap-cuted, it is a valid obligation In Imis v. Kyle, 2

By the law of Tennessee, where the note was exeplicable to the case at bar. Moreover the case is especially sound in England, and it might there be con

Yerg. 31, the Supreme Court held that the statute of sidered as applicable to a case having the same facts

that State only prohibited labor and business in the as in the case at bar. For by the common law, in

“ordinary calling” of the parties; and that isolated order to "render odious illicit commerce between the private contracts, made by parties outside of their ordiseses and to stamp disgrace on the fruits of it, not

nary calling, are not invalidated. This rule was withstanding the punishment usually fell upon the

ried to a great length in the case cited. An obligainuocent, it was thought wise to prohibit the offspring

*S. C., 21 Fed. Rep. 259.







tion, to be discharged in horses, was made payablo on the Lord's day, and the court held the contract valid, and that a tender of the horses, to have the effect of discharging the obligation, must be made on that day. This was held upon the ground that the sale and deiivery of horses was not the ordinary calling of either of the parties. The attention of the court has not been called to any later exposition of the law of that State than is containeri in this decision, and it will be assumed that there is nono.

Under the rule established in cmis v. Kyle, it is obvious the note, which is the foundation of this suit, was valid in Tennessee. The execution of a note for il pre-existing debt was probably not the ordinary calling of either of the parties. If it was, the burden of proof was on the defendant to show it. Roys v. Johnson, ñ Gray, 162; Blorsome v. IV illiams, 3 Barn. & C. 232,

The doctrine of the Supreme Court of Tennessee is the cloctrine of the early English cases under the statute of 29 Chas. 11, ch. 7, which prohibited labor only in the “ordinary calling of the parties. Drury v. Defontaine, 1 Taunt, 1:31; Blousome v. Williums, supra; Rex r. Whitnash, ñ Barn. & ('. 596; Fennell v. Ridler, 5 id. 406; Rex v. Brotherton, 2 Strange, 702. It is also the doctrine of some of the American cases. Ilellams v. Abercrombie, 15 S. ('. 110; Bloom. v. Richards, 2 Ohio St. 387; George v. George, 17 N. 11. 27; Hazard v. Day, 14 Allen, 487. Of course the law of this State has no extraterritorial operation, and cannot affect the validity of contracts executed elsewhere on the Lord's day. And the general rule is that a contract valid by the law of the place where it is made is valiil everywhere, and will be enforced by the courts of every other country. But there are exceptions to this general rule, and among them contracts against good morals, and that tend to promote vice and crime, and contracts against the settled public policy of the State will not be enforced, although they may be valid by the law of the place where they are made. Story ('oufl. Laws, g 241; Westl. Int. La 196; Whari. Conil. Laws, $ 490.

The contention of the learned counsel for the de fendant is that a court of this State ought not to enforce a contract made on the Lord's day in another State, though valid by the law of that State, because the contract is the result of an immoral and irreligious act, and its enforcement here would shock the moral 80.130 of the community and violate the public policy of the State. Assuming, but not cleciding, that the determination of this question inust be the same in this court that it would be in a court of thien State, we will proceed to inquire whether there is any principle upon which a court of the State could refuse to enforce the contract in suit.

The common law made no distinction between the Lord's day and any other day. ('ontracts entered into on that day were as valil as those made on any other day. The contract in suit was voluntarily entered into between parties capable of contracting, for a lawful and valuable consideration. It hac relation to a subject-matter about which it was lawful to contract, and was a valid contract when and where it was inade. No court ought to refuse its aid to enforce such a contract on doubtful and uncertain grounds. The burilen is on the defendant to show that its enforcement would be in violation of the settled public policy of this State, or injurious to the morals of its people. Vague surmises and flippant assertions as to what is the public policy of the State, or what would be shocking to the moral sense of its people, are not to be indulged in. The law points out the sources of information to which courts must appeal to determine the public policy of a State. The term, as is is often

popularly used and detined, makes it an unknown and variable quantity-much too indefinite and uncertain to be made the foundation of a judgment. The only authentic and admissible evidence of the public policy of a State on any given subject are its Constitution, laws and judicial decisions The public policy of a State, of which courts take notice, and to which they givo effect, must be deduced from these sources.

In Vidal v. Giraril's Ex'rs, 2 How. 127, 198, it was objected by Mr. Webster that the foundation of the Girard College, upon the principles prescribed by the testator, was derogatory and hostile to the Christian religion, and so is void as being against the common law and public policy of Pennsylvania." In replying to this argument the court said :

“Nor are we at liberty to look at general consideralions of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its Constitution and laws and judicial decisions make kuown to us.

What is there, then, in the Constitution, laws and decisions of this State evincing a public policy hostile to the enforcement of contracts lawfully made in other States on the Lord's day? The Constitution of the Stato declares:

No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given by law to any religious establishment, denomination or mode of worship above any other.

No religious test shall ever be required of any person as a qualification to vote or bold otfice; nor shall any person be rendered licompetent to be a witness on account of his religious belief.” Const. 1874, SS 24, 26.

So much of the statute of the State as has any bear. ing on tho question reads as follows:

“Sec. 1611. Every person who shall, on the Sabbath or Sunday, be found laboring, or shall compel bis apprentice or servant to labor or perform other services than customary household duties of daily necessity, comfort or charity, on conviction thereof shall be tined one dollar for each separate offense. *

“Sec. 1617. Persons who are members of any religious society, who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society."

It is obvious the statute does not attempt to compel the observance of the first day of the week as a day of rest as a religious duty. It would be a nullity if it did so.

In Bloom v. Richards, 2 Ohio St. 387, the courtThurman, J., delivering the opinion – said:

“Thus the statuto upon which the defendant relies, prohibiting common labor on the Sabbath, could not stand for a moment as a law of this State, if its sole foundation was the ('hristian duty of keeping that day holy, and its sole motive to enforce the observance of that duty

And see, to the same effect, Specht v. Com., 8 Barr. 312; City Council of Charleston v. Benjamin, 2 Strobb. 508.

In this country legislative authority is limited strictly to temporal affairs by written Constitutions. Under these ('onstitutions there can be no dingling of the affairs of church and State by legislative authority. All religions are tolerated, and none is pgtablished. Each has an equal right to the protection of the law, whether Christians, Jews or inddels. Andrer v. Bible Society, 4 Sandf. (N. Y.) 18.2; Ayres v. Methodist Church, 3 id. 377, Cooley Const. Lim. 472. No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a


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religious duty. The old idea that religious faith and practico can bo, and shouid be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observances; whereas religion consists in a tem per of heart and conscious faith which force can neither implant nor efface. History records the mischievous consequences of all efforts to propagate religion, or alter man's relations to his Maker, by penal statutes. In religion no man is his neighbor's keeper, and no moro is the State the keeper of the religious conscience of tho people. The State protects all relig. ions, but espouses none. Every man is individually answerable to his God for his faith and his works, and must therefore be left free to imbibe and practice any faith he chooses, so long as he does not interfere with the rights of his neighbor. The statute then is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation. Slaughter-house cases, 16 Wall. 36, 6:2, and cases cited; Bloom v. Richards, supra; Specht v. Com. supra; Cily of Charleston v. Benjamin, supra.

Experience has shown the wisdom and necessity of having at stated intervals a day of rest from customary toil and labor for man and beast. It renews flag. ging energies, prevents premature decay, promotes the social virtues, tends to repress vice, aids and encourages religious teachings and practice, and affords an opportunity for innocent and healthful amusement and recreation. Neither man nor beast can stand tho strain of constant and unremitting toil. Such a day, when designated by the State, is a civil and not a religious institution. No merely religious duty is enjoined. The statuto does not require attendance on church any more than it requires attendance to hear a lecture in support of infidelity. In point of lawfulness there is no difference between an orthodox sermon and such a lecture on the Lord's day in this State. The Legislature might have required all persons to abstain from labor on the first or any other day of the week, without reference to their religious preferences or practices in that regard. But the statute of that State does not go to that length. While the law does not enforce religious duties and obligations as such, it has a tender regard for the conscienco and convenience of every citizen in all matters relating to his religious faith and practice. The statuto is catholic in its spirit, and accommodates itself to the varying religious faiths and practices of the people. In legal effeot it declares erery person must observe one day out of seven as a day of rest. But it does not attempt to bind all to the observance of tho samo day. Such a requirement would have tho effect to compel many to obserre two days of rest in each week—the statutory day and the day which their religious faith constrained them to observe. Tho statute designates the first day of the week as the day of rest for all who do not by reason of their religious faith and practice observe some other day. Christians, who regard the first day of the week as a sacred day; iusidels, who regard no day as holy; and Friends, who hold there is no more holiness in one day than another, but that all are to be kept holy, are by the statute constrained to desist from labor on the first day of the week. On the other hand, Jews and Seventh-day Baptists may pursue their ordinary callings on that day, if they observe the sereuth day of the week according to their faith; and Mohammedaus may labor on the first if they observe the sixth day of the week according to their faith. The statute grants to all persons, who in the exercise of their religious faith and practice, observe one day in the week as a day of rest, the liberty of working on every other day of the week, without qualification or Imitation. In this respect there is a pronounced dif

ference between tbe law of’this and some of the other States. In

many other States but slight regard is shown to those who observe any other than the first day of the week as a day of rest. The New York statute provides :

"Nor shall there be any servile working or laboring on that day, excepting works of necessity and charity, unless done by some person who uniformly keeps the last day of the week, called Saturday, as holy time, and does not labor or work on that day, and whose labor shall not disturb other persons in their observance of the first day of the week as holy time.”

The New Jersey statute provides that it shall be a sufficient defense for working on the Sabbath day, that the defendant keeps the seventh day as the Sabbath; “provided always that the work or labor for which such person is informed against is done and performed in his or her dwelling-houso or workshop, or on his or her prenuises or plantation, and that such work or labor has not disturbed other persons in the observance of the first day of the week as the Sabbath.” And it has been held that whatever draws the attention of others from the appropriate duties of the Lord's day disturbs them. And where one purchased a horse and gare his note for the same, in his own house in the presence of his wife, the seller, and one other person, whose religious feelings were not at all shocked, and who made uo complaint, it was held to be “to the disturbance of others." l'arrney v. French, 19 N. II. 233.

But tho statute of this State draws no such invidious distinctions between those Christians who observe the first and those-be they ('hristians, Jews, or Mohammedans—who observe “any other day of the

* agreebly to the faith and practice of their church or society."

It is not true therefore that all contracts made in this State on the Lord's day are void. A large number of the citizens of the State may lawfully labor and make contracts on that day. There can be 10 doubt of the validity of a note executed in this State on the Lord's day, when the parties to it refrain from labor on “any other day of the week, agreeably to the faith and practice of their church or society." The ralidity of contracts made in this State on that day depends therefore on whether the parties to them conscientiously observe some other day of the week as a day of rest. If they do, their contracts mado on the Lord's day are valid. Such contracts the courts of the State would be bound to enforce. If then it would be the duty of the courts of the State to enforce contracts made in the State between its own citizens on the Lord's day, having no relation to “household duties of daily necessity, comfort, or charity," how can it be said that the public policy of the State forbids the enforcement of such contracts made in another State, and ralid by the law of that State? A court cannot declare that the public policy of the State erinces such a high regard for the sacredness of the Lord's day as to forbid it to enforce a contract lawfully made on that day in another State, when it is bound by law to enforce contracts niade on that day in its own State. It may be justifiable in private life to "assume a virtue,tbough you have it not;" but courts, in the impartial administration of justice, are forbidden to assume a bigher regard for the holiness of the Lord's day than is found in the Constitution and laws of the State. To do so would deprive suitors of their rights without law and would besides be in the highest degree Pharisaical. And if the courts of the State would enforce contracts made on that day in the State between certain classes of her owu citizens, how can the moral sense of

the people of the State be said to be shocked by enforc- thing itself, on the doing of which the penalty is to ing suck contracts lawfully entered into elsewhere? No accrue, though there are no prohibitory words in the court is at liberty to impeach the Constitution and statute; and the other is, that a court of justice will laws under which it derives its jurisdiction and au give no assistance to the enforcement of contracts thority as a court, by assuming that what is lawful which the law of the land has interdicted. under them is shocking to the moral sense of the peo “The ground upon which courts have refused to ple who enacted them. But if no contracts nado on maintain actions on contracts made in contravention that day in the State could be enforced, there would of statutes for the observance of the Lord's day, is the still be nothing in the objection that their enforce- elementary principle that one who has himself particiment would be too shocking to the moral sense of the pated in a violation of law cannot be permitted to ascommunity to be tolerated, for reasons forcibly stated sert in a court of justice any right founded upon or by Judge Redfield, in delivering the opinion of the growing out of the illegal transaction." Cranson v. court in ddams v. Gay, 19 Vt. 338, 307 :

Goss, 107 Mass. 439; IIolman . Johnson, Cowp 341; "And before we could determine that any given Gibbs & Sterrett Manfg. Co. v. Brucker, 111 U. S. 597. cause shocked the moral feelings of the community, There have been vigorous protests from time to time we must be able to find but ono pervading feeling upon against the application of these principles to Lord 8 that subject; so much so that a contrary feeling, in an day contracts, upon the ground that they inflicted penindividual, would denominate him either insane, or alties, by judicial construction, out of all proportion diseased in his moral perceptions. Now nothing is to the offense, and not contemplated by the act (Bloom more absurd, to my mind, than to argue the existence

V. Richards, supru; and see remarks of Grier, J., in of any such universal moral sentiment in regard to Philadelphia, 11. & B. R. Co. v. Philudelphia & Havre the observanco of Sunday. It is in no just senso a de Gruce S. B. Co., 23 IIow. 218); but the great weight moral sentiment at all which impels us to the

of authority is that a contract made in violation of observance of Sunday, for religious purposes, tho Lord's day acts is void, like any other illegal and more than any other day. It is but education prohibited contract, and upon no other or different and babit, in the main, certainly. Moral feel ground, And the reason that a contract made in this ing might dictate the devotion of a portion of our State on the Lord's day between persons “who obtime to religious rites and solemnities, but could serve as Sabbath any other day of the week” is not never indicate any particular time above all others.” void, is that the statuto expressly declares they “shall

It is believed the moral sense of tho community not be subject to the penalties of this act,” and as would esteem it a morally dishonest act for a debtor to there is no prohibition in terms in the statute, it rerefuso to pay a just debt because the evidence of it sults that there is neither penalty nor prohibition was executed on the Lord's day. Christians vary in against such persons making contracts or performing their opinions of the manner in which the Lord’s day any other kind of labor on the Lord's day. But if by ought to be kept. In continental Europe, Sports, the statute all contracts made in this State on the games, and practices are freely indulged in on that Lord's day were void, it is believed that the result in day, with the approval of the church, which the larger the case at bar would not be different. number of Protestant churches of England and this There is often great difficulty in practice in drawing country do not approve.

the line between the foreign contracts which may and The large emigration from Europe to this country is may not be enforced. The rules defining the comity of having a marked influence on public opinion, particu States in this regard are necessarily general in their larly in towns and cities, as to how the Lord's day terms, and the adjudged cases are not quite uniform. ought to be kept. The Puritan view of the question Nocase has been cited, and it is believed none can be has undergone some modifications through this influ found, holding that a, contract made on the Lord's

As a result of less restricted views on the sub day in a State where such contracts aro valid will not ject, in this city, in the shadow of the capitol there be enforced by the courts of another State, by the are more than half a hundred places where spirituous laws of which such contracts are void. But there is liquors are sold on Sunday, the same as any other day one case at least (there may be others which our lim. in the week, without molestation from the State or ited examination failed to discover) that holds that in city authorities. It would be downright hypocrisy for such case the contract will be enforced. The case is a court to affect to believe that the moral sense of the entitled to consideration, no less on account of the community, which supports this condition of things, uniform high character of the decisions of the court would be shocked by compelling a man to pay a noto than the acknowledged learning and ability of the given for an honest debt because it was executed on judge who delivered the opinion. the Lord's day. There may be a good many individ

In 1dums r. Gay, supra, the precise question arose. uals who would feel so, but they do not constituto the

A contract which, if it had been made in Vermont, community in the legal sense of that term.

would have been void under the Lord's day act of that It is an error to suppose that the Supreme ('ourt of

State, was made in New Ilampshire on the Lord's day, the State, in Tucker v. W'est, suprui, held Lord's day

In a suit arising upon that contract in Vermont, the contracts void on religious or moral grounds. That is

question aroso whether the courts of that State would not the ground upon which they are held void by any

give it effect. The court refused to take judicial noof the courts. The court held that the execution by

tice of the law of New Ilampshire, and did not iuthe maker and the receipt by the payee of a promis.

dulgo the presumption that it was the same as that of sory note was “labor,” within the meaning of that

Vermont. The court, Judgo Redfield delivering the word as used in the statuto It of course follows that tho parties to a note exe

opinion, said: cuted on the Lord's day incur the penalty of the stat

“The law of New Ilampshire then being out of the ute against those who labor on that day, viz., a fino

case, on account of its not having been proved at the of one dollar. By reference to the statute it will be

trial, the contract between the parties is valid, observed that it does not in terms prohibit labor, or

unless it is void upon general principles of public declare contracts void. It simply denounces a penalty

policy, as being of evil example to our own citizens against those “found laboring." Hero two familiar

to see such a contract enforced in a court of jusand established rules of decision come into play. One of these is, that a penalty implies a prohibition of the

And after a full discussion of the subject, the court,



on the assumption that the contract was valid in New the homicide was commented shall be set forth; it is Hampshire, held it valid in Vermont.

sufficient to allege that it was done feloniously, with It has been decided that contracts for the purchase malice aforethought, and contrary to the form of the of lottery tickets, if valid where made, will be treated statute, Code ("rim. Pro., SS 275, 281; People v. as valid and enforced in the courts of a State by the Enoch, 13 Wend. 159; People v. Kennedy, 32 N. Y. laws of which such contracts are illegal. DcIntyre v. 141; People v. Fitzgerrold, 37 id. 413. (3) On the trial Parks, 3 Metc. 207 (in Websler v. Munger, 8 Gray, 587, of an indictment for murder in the first degree where Thomas, J., expresses the opinion that McIntyre v. the homicide is charged to have been committed Parks was not rightly decided); Kentucky v. Bassford, “from a deliberate and premeditated design to effect 6 Hill, 526. And the same doctrine has been main the death of the person killed” (Penal Codo, $ 183, tained with reference to gambling contracts. Whart. subd. 1), while the prosecution is required to prove deConfl. Laws, SS 487, 492. [See, contra, Flagg v. Bald liberation and premeditation, and while there is no win, 38 N. J. Eq. 219; S. C., 48 Am. Rep. 30%, as to legal presumption arising from proof of the mere comcontracts for speculating in stocks on margins.-E1).] mission of the homicide by the defendant which con

This court is not to be understood as expressiog any cludes the jury from finding upon that evidence alone opinion as to the soundness of the doctrine of the cases that such facts were not established, yet they may be last cited. They carry the doctrine of comity further inferred from the perpetration of the act, the jury are than it is necessary to go to uphold the action in the authorized to find them unless the circumstances case at bar. Lottery and gambling contracts are very surrounding the homicide clearly repel the idea of degenerally regarded as inberently vicious and immoral, | liberation and premeditation. It is a general rule and wanting in a meritorious consideration, whenever that all homicide is presumed to bə malicious, and of and whererer made. Whereas the contract in suit course amounting to murder until the contrary apwas not only obligatory where made, but was made pears from circumstances of alleviation, excuse or for a valuable and meritorious consideration; and the justification. Russell Crimes, 493; ? Blackst. Com. only objection to its validity is that it was executed | 201; Rex v. Greenacre, jt Eng. ('. L. Rep. 280; IIill's ou an inappropriate day of the week, a circumstance case, 2 Gratt. 594; People v. McLeod, 1 Hill, 436. But in which it would seem a State, other than that in see People v. Stokes, 53 N. Y. 161; People v. Clark, 7 which the contract was made, could have, very little | id. 393 ; People v. Leighton, ss id. 117. In People v. coucern.

Majone, 91 N. Y. 211, Judge Earl says: “Under the It has been held that when the law of the State statute there must not be only an intention to kill, where the contract was made, and the law of the Stato but there must also be a deliberate and premeditated where the suit is brought, are the same, and a contract design to kill. Such design must precede the killing made on tho Lord's day is void by the laws of both by some appreciable space of time. But the time need States, it will not be enforced and that in the ab not be long. It must be sufficient for some reflection sence of proof to the contrary, the law will be pre or consideration upon the matter, for choice to kill or sumed to be the same in both States. Hill v. Willier, not to kill, and for the formation of a definito purpose 41 Ga. 419; Sayre v. Wheeler, 32 Iowa, 559.

to kill. The human mind acts with celerity, which it is sometimes imposible to measure, and whether a do

liberate or premeditated design to kill was formed NEW YORK COURT OF APPEALS ABSTRACT.

must be determined from all of the circumstances of

the case.” () On the trial the testimony tended to CRIMINAL LAW-INSANITY – NON-EXPERT — CODE show that the defendant, knowing the location of the CRIM. PROC., $S 275, 281–PREMEDITATION-INTENT deceased, drew a pistol from his pocket, with some QUESTION FOR JURY-GUILT- EVASION ANT) FALSE difliculty, as it caught in the lining, and spite of the HOOD.—(1) Upon trial of an indictment for murder, appeals of another person not to fire, turned toward wherein insanity was set up as a defense,'a witness for the deceased, pointed the pistol in his direction and defendant, who had testified as to, and gave the de- fired, causing his death. Belil, that the evidence was tails of an interview with him on the same evening, sufficient to authorize the jury to find premeditated and a short time prior to the homicide, was asked: and deliberate design to cause the death, and this “Were his acts at eight o'clock that night rational or although no motive for the killing was shown. In irrational?” This was objected to, and objection sus Starkio ou Evidence it is said, “that a rational ageut tained. Held error; that the witness was competent must be taken to contemplate and intend the natural to give his opinion as to the character of the conduct and immediate consequences of his own act, is a preand conversation which he had observed. The rule sumption so cogent as to constitute rather a rule of regulating tho admissibility of the opinions of non law than of mere eridence” (p. 818). “There is a geuexpert witnesses upon questions affecting the mental eral presumption in criminal matters that a person incondition of individuals is well stated in the opinion tends whatever is the natural and probable consequenof Judge Porter in Clapp v. Fullerton, 31 N.Y. 190. IIe ces of his own actions." 1 Phillips' Ev. 632. It was says: “When a layman is examined as to facts within said by Judge Andrews, that “it is a fundamental rule his own knowledge and observation, tending to show of evidence of very general application, founded upon the soundness or unsoundness of the testator's mind, observation and experience, that a man is presumed he may characterizo as rational or irrational the acts to intend the natural consequences of his acts.” Fosand declarations to which he testifies."

“But to ren ter v. People, 30 V. I. 109. (5) When the inferences der his opinion admissible, eren to this extent, it must to be drawn from tho testimony are not clear and inbe limited to his conclusions from the specific facts he controrertible, and men of ordinary judgment and discloses. The rule thus expressed was followed and discretion might differ as to its significance, it is the approved in the cases of Brien v. People, 46 N. Y. 282, exclusive province of the jury to pass upon the quesand Hewlett v. Wood, 55 id. 634. This question was tions inrolved. Thurber v. IIarlem R. ('o., CO N. Y. recently examined and discussed in this court in the 331 ; Morrison v. Erie R. C'0., 56 id. 308. (6) The resort case of Holcomb v. Holcomb, 95 N. Y. 316, and the to falsehood and erasion by one accused of a crime rule as above stated was approved, and our conclusion affords of itself a presumption of eril intentions, and upon this question leads to an aflirmance of the Gen- has always been considered proper evidence to eral Term order. (2) In an indictment under the present to a jury upon the question of the guilt or in Code Crim. Proc, for murder in the first degree it is uncence of the person accused. United States v. Ran. not necessary that the particular iuteut with which dall, Deady, 524; State v. Reed, 62 Me. 129; Common

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