People v. Williams.

the court below, admitting proof of the statement that she was going to see her husband, when she left the house on Saturday night, was correct or not. It was attempted, on the argument, to be sustained as a declaration characterizing an act, and constituting, in legal understanding, part of the act itself. This is a recognized exception to the rule excluding hearsay as evidence; for when it is necessary, in the course of a cause, to inquire into the nature of a particular act, or the intention of the person who did the act, proof of what the person said at the time of doing it is admissible in evidence for the purpose of showing its true character. 1 Phil. on Ev. 231, Gould's ed. But to render the declaration competent, the act with which it is connected should be pertinent to the issue; for where the act is in its own nature irrelevant, and when the declaration is per se incompetent, the union of the two will not render the declaration admissible. Wright v. Doe, 7 Ad. & E. 289. The material fact here was, that the prisoner and the deceased were together on Saturday night. Even this was not a principal fact, but only a circumstance to show that the prisoner had an opportunity to commit the offense. That the deceased left the house in Duane-street at a particular time was of no materiality, unless it was also shown that during her absence she met the defendant. The act itself was indifferent to the issue, whatever the intention was with which it was done. If the deceased met the prisoner, and thus afforded an opportunity of committing the offense, it is immaterial whether she intended or expected to meet him or not; and so, of course, if she failed to meet him he could not properly be prejudiced by the circumstance that she went out with a design to go to him. The evidence was not offered to qualify an act connected with the issue, but to induce the jury to infer another act not otherwise shown to exist: that of his being in company with the deceased. Suppose a declaration had been made by the deceased, on the previous day, of an intention to go to her husband on that particular evening; such declaration, being unaccompanied by any act, would rest wholly in assertion, and would be clearly without the rule referred to; yet the proof would be essentially of the same character, and subject to no greater objections than the evidence we are considering. I am

People v. Williams.

of opinion, therefore, that the case was not within the rule admitting a declaration accompanying an act, on the ground of its being a part of the res gesta; and I know of no other ground upon which the case can be taken out of the general rule which excludes, under the name of hearsay, declarations not made under the responsibility of an oath.

Enough has been said to show that the judgment of the supreme court ought to be affirmed.

Upon a second trial the question will again arise as to the admissibility of the evidence showing that arsenic was found in the bowl which was examined by the chemist. We have looked carefully into the evidence of identity, and are of opinion that it was sufficient to authorize the court to submit the question to the jury.

The judgment of the supreme court must be affirmed.

HAND, J.-The proof of what the deceased said when she was leaving the house of Mrs. Campbell was not admissible. It was no part of the res gestæ, for it was no part of the principal transaction, not contemporaneous, or even incidental to it. It was spoken at a time previous to any part of the transaction constituting the supposed offense, and in the absence of the prisoner, and when the deceased had no apprehension of danger, and much less was she in extremis.

I see no objection to the testimony in relation to the bowl or its contents. Whether the evidence was sufficient to identify the former, or show what constituted the latter, were questions for the jury, and the proof given on these points was competent for their consideration. No one portion of it, or that given by one witness, might have been sufficient; but all of it together might be, and the prosecution was not obliged to give conclusive proof at every step.

It was also competent for the prosecution to prove that the prisoner had made payments upon the paper produced in court. That was a mere circumstance, and the production of the paper and such proof did not contravene any rule of evidence in relation to the proof of written instruments.

But the recognizance itself was given in evidence without any proof of its execution, except what appeared upon the face

People v. Williams.

of the instrument, and the testimony of an agent of the governors of the alms-house that the prisoner had made payments upon it. I am inclined to the opinion this was not sufficient. A recognizance is said to be a matter of record. 1 Chit. Crim. L. 90; People v. Kane, 4 Den. 530. But this was taken before a police justice in the city of New York, under the statute in relation to disorderly persons, and is but an acknowledgment, upon which, perhaps, a record might be made up. It does not appear to have been filed with any officer, and there was no proof of its execution, nor of the identity of the persons recognized, except by the payments. Using one's own affidavit in a cause may sometimes be sufficient evidence of identity as against the party making it; but, as a general rule, even an affidavit cannot be given in evidence, at least before it is filed with the proper officer, without some proof. 1 Chit. Crim. L. 576; 1 Phil. on Ev. 379; Bellinger v. People, 8 Wend. 598; Rex v. Smith, 1 Stra. 126; 2 Cow. & H., 1100. This recognizance must have been introduced for the purpose of showing an inducement to commit the crime, or that difficulties had existed between the husband and wife. It purported to have been signed by the prisoner and another, and to have been taken before an officer; but it would be dangerous, especially in a capital case, to admit such a document without any proof whatever.

However, it is not necessary to pursue this point further, as the admission of evidence of what the deceased said before the commission of the supposed offense clearly entitled the prisoner to a new trial, and the supreme court was therefore right in reversing the judgment on that point.

The judgment should be affirmed.

A majority of the judges concurred.

Judgment affirmed.

Phelps v. Van Dusen.

PHELPS v. VAN DUSEN.

December, 1867.

In an action for rent, under an averment describing the lease as for two years, the lease may be admitted in evidence, although extended, by virtue of a covenant therein contained, for an additional period, at increased rent.

The landlord may recover if his action is upon an express covenant to pay rent, although prior to the accruing of the rent sued for, the renewal lease was assigned to third persons, and the plaintiff accepted subsequent rent from them.

Isaac N. Phelps and others sued George Van Dusen, to recover rent for premises occupied by defendant under a written lease from the plaintiff for two years, with covenant for additional term at increased rent.

Before the expiration of the first term, the defendant assigned the lease to Benjamin & Co., from whom the plaintiff received rent from the commencement of the second term.

The defendant retained possession of the premises until the close of the first term, but did not pay the rent for the last quarter, for which the plaintiffs brought this suit against him, and recovered judgment there for, which was affirmed at general term. The defendant appealed.

S. C. H. Bailey, for defendant.

Terwilliger & Hosford, for plaintiff.

BY THE COURT.-GROVER, J.-None of the objections to the introduction of the lease in evidence were well taken. The proof of its execution by the defendant was sufficient; and if not, the fact was afterward proved by the defendant. The lease was properly described as a lease of two years, although extended, by virtue of a covenant therein contained, for an additional period of three years, at an increased rent. The rent claimed in this action accrued prior to the assignment of the lease by the defendant to Benjamin & Co.

Philbin v. Patrick.

Besides, the defendant expressly covenanted to pay the rent to the plaintiff, and the action is upon the covenant. The assignment of the lease to Benjamin & Co., and the acceptance of rent subsequently by the plaintiff from them, did not discharge the defendant from his covenant to pay the rent. Post v. Jackson, 17 Johns. 239; Same case in error, Id. 479.

The judgment appealed from must be affirmed.

All the judges concurred, except BOCKES, J., absent. Judgment affirmed, with costs and ten per cent. damages.

PHILBIN v. PATRICK.

March, 1868.

In an action for materials furnished, it is proper to ask the witness to produce the book containing his original entries of the items, and read the same, it being subsequently shown that he was unable to state them from memory, and that the articles were delivered.

Stephen Philbin and Joseph B. Quin sued Richard Patrick, in the New York superior court, to recover for labor and materials in the plumbing work in defendant's house.

On the trial, Mr. Knight, plaintiffs' bookkeeper, was called, and sworn as a witness. After stating that plaintiff's had two day books, into one of which entries were taken off from the scrap book, and then transferred again into the other, the witness was asked to take his scrap book and begin at the beginning, and call off all the items entered by him on this job. Against defendant's objection and exception, he was permitted. to read from the scrap book the items charged there in his writing. He was subsequently asked if he recollected delivering the articles thus specified, and he replied that he could not say definitely now that he did; that he was able to state what articles he delivered from having made the charges in the scrap book.

The referee found for plaintiffs; judgment was entered accordingly, and affirmed at general term. The defendant then appealed to this court.