in behalf of the Commonwealth was reasonably consistent with the theory that the deceased came to her death by suicide. There was evidence in the case tending to negative the circumstances relied upon by the Commonwealth, and to support the theory of suicide.”
At the argument in this court the attorney-general asked that if the kind and amount of evidence tending to support the theory of suicide should be thought by the court to be important, the exceptions might be amended so as to show exactly what this evidence was, and he intimated that, in his opinion, this evidence was so slight as to be unworthy of serious consideration. We understand that by the evidence the attorney-general meant direct evidence tending to prove suicide. Without considering what remedy, if any, is open to the attorney-general in a criminal case where there is a reason to suppose that the exceptions taken by the defendant and allowed by the court are not sufficiently full, we are of opinion that in the present case the facts are such that suicide would naturally suggest itself as a possible explanation of the cause of death, and that if it be true that the direct evidence tending to prove suicide is inconsiderable, yet the circumstances afforded evidence in support of the
Theory of Suicide
which must be considered by the jury. The amendment, therefore, if it were made and were of the character suggested, would afford no aid to the court in determining the questions of law raised by the exceptions.
A few minor suggestions of the attorney general may be briefly disposed of. There was evidence on the part of the Commonwealth that the deceased did not leave her home on the 22d day of December until 3 o’clock in the afternoon, and that she returned home between 8 and 9 o’clock, and the attorney general argues that “this furnishes sufficient reason for the exclusion of the evidence” offered “in the discretion of the court.”
But the jury might have disbelieved this evidence of the Commonwealth, or, if they believed it, might also have believed that the deceased had the interview with Sarah L. Hubert in the afternoon rather than in the forenoon of Dec. 22.
The attorney general also argues “that the statement was so remote in point of time from the disappearance and death of Tena Davis that it was within the discretion of the court to exclude it for this reason.”
When evidence of declarations of any person is offered for the purpose of showing the state of mind or intention of that person at the time the declarations were made, the declarations undoubtedly “may be so remote in point of time or so altered in import by subsequent change in the circumstances of the maker as to be wholly immaterial and wisely to be rejected by the judge.” It has been many times said that “some limit must of course be had in applying practically the rules which govern the admission of this evidence.”
This subject is considered in Commonwealth vs. Abbott, 130 Mass., 472, and in the cases there cited. There is undoubtedly a discretion to be exercised by the judge or judges presiding at the trial, in the admission or rejection of this kind of evidence, but it is
Not an Absolute Discretion,
and the exercise of it when the facts appear may be reversed by this court. If the declaration, evidence of which was offered in the present case, had been made by the deceased two or three years before her death, when she was not pregnant with child, and did not know the defendant, it might well have been held by the presiding judges to have been of no significance in the case.
In the case at bar the evidence offered was that the declaration of the deceased was made the day before her death, and was made in a conversation concerning her pregnancy which continued until her death. The declaration, therefore, was not made at a time remote from the time of her death, and there had been no change of circumstances which made it inapplicable to the condition of the deceased at the time of her death.
It was clearly competent for the jury to find, from the evidence recited in the exceptions, that if Deltena J. Davis had an intention to commit suicide on Dec. 22, she continued to have the same intention on Dec. 23. If the evidence in its nature was admissible, the court, on the facts stated, could not exclude it on the ground that from the lapse of time or change of circumstance it had ceased to be material.
It ought to be said that there is nothing in the exceptions indicating that the presiding judges refused to admit the evidence on the ground that it was in their discretion to admit or reject it. They probably considered the question as settled by the decision of this court in Commonwealth vs. Felch, 132, Mass. 22.
The main argument of the attorney general is first, that it is immaterial whether the deceased at or before the time of her death had or had not an intention to commit suicide; and secondly, that if she had such an intention it could not be proved by evidence of her declarations that she was going to drown herself. The burden was on the Commonwealth to prove beyond a reasonable doubt that the defendant killed the deceased, and to do this the jury must be satisfied beyond a reasonable doubt that she did not kill herself. The nature of the case proved by the Commonwealth was such that it was not impossible that she had
Committed Suicide.
If it could be shown that she actually had an intention to Commit suicide it would be more probable that she did in fact commit it than if she had had no such intent.
If it could be shown that during the week before her death she had actually attempted to drown herself and had been prevented from doing it, it seems manifest that this fact, according to the general experience of mankind, would have some tendency to show that she might have made a second attempt and accomplished her purpose.
It may be true that an unmarried woman pregnant with child may some time say that she will commit suicide when she has no serious intention of doing it, or, if she has such an intention, she may not carry it into effect, although she may have an opportunity; but it is impossible to say that the actual existence of such an intention does not tend to throw some light upon the cause of death of such a woman when found dead under circumstances not inconsistent with the theory of suicide.
It is a question of more difficulty whether evidence of the declarations of the deceased can be admitted to show such an intention. The argument, in short, is that such evidence is hearsay. It is argued that such declarations are not made under the sanction of an oath, and that there is no opportunity to examine and cross-examine the person making them, so as to test his sincerity and truthfulness or the accuracy and completeness with which the declarations describe her intention or state of mind, and that, even if such declarations would have some moral weight in the determination of the issue before the court, they are not within any of the exceptions, to the exclusion of hearsay, which the common law recognizes.
The counsel for the defendant concede that the declaration in his case is not, under our decisions, admissible as a part of what has been called the res gestae, although they contend that some courts have admitted similar declarations on that ground.
They concede that to make a declaration admissible on that ground it must
Accompany an Act
which directly or indirectly is relevant to the issue to be tried and must in some way qualify, explain or characterize that act and be in a legal sense a part of it.
They concede that if this declaration is a part of the act of visiting Sarah L. Hubert and tends to show the nature or purpose of that visit, the fact of the visit is not relevant to the issue; it does not tend to show, directly or indirectly, that the defendant killed the deceased or that she killed herself.
They concede that if the evidence of this declaration is admissible it is on account of the nature of the declaration and not because it was made at this interview, and that if made to anybody else under the same circumstances it would have the same significance.
They contend that the declaration is some evidence of the state of mind or intention of the deceased at the time she made it, and that the intention which it tends to prove is a material fact, which, in connection with other facts proved, tends to support the theory of suicide.
They contend that the state of mind or intention in the mind of a person when material can be proved by evidence of his declarations as well as of his acts, particularly when that person has deceased and cannot be called as witness, and the declarations were made before the controversy arose, which is the subject of the trial.
The evidence that declarations were made must of course be of the same character as the evidence that acts were done, that is, both must be proved by the testimony of witnesses under oath and subject to cross-examination, and in either case the examination may extend to all the circumstances which tend to show the significance of the declarations or of the acts as indications of the existing state of mind or intention of the speaker or actor.
The fundamental proposition is that an intention in the mind of a person can only be shown by some external manifestation, which must be some look or appearance of the face or body, or some act or speech, and that proof of either or all of these for the sole purpose of showing the existing state of mind or the intention may be inferred.
For example, the exceptions recite that on the day when the deceased disappeared Trefethen called at the house of her mother “about 10 in the forenoon, and was there some time with Tena, and that Tena that day appeared bright and cheerful and full of smiles, but at times during the month prior thereto had been depressed in spirits.”
The only apparent object of this testimony was to show that on the day she disappeared
She Was Happy,
and, therefore, could not have contemplated suicide. Her bright and cheerful appearance might have been real or feigned, but this was for the jury. If the deceased at the same interview had said: “I was never so happy in my life as I am today.” It is contended that this declaration might be as significant of her state of mind as her cheerful appearance, and that speaking, as an indication of what is on the mind of the speaker, is as much an act as smiling or conduct generally. The only obvious distinction between speech and conduct is that speech is often not only an indication of the existing state of mind of the speaker, but a statement of a fact external to the mind, and, as evidence of that it is clearly hearsay, and there is, of course, danger that a jury may not always observe this distinction, but that has not availed to exclude testimony which is admissible for one purpose and not admissible for another to which there is danger the jury may apply it.
A common instance of this is when it is a material fact in the case whether a person at a certain time said a certain thing. The testimony of a person who heard him say it is always admitted, although this is not evidence that what that person said was true.
The present case discloses another instance. Many witnesses testified to conversations with the defendant about the disappearance of Tena Davis and his connection with it. What they said to him, and his silence or his replies were only admissible so far as his failure to make his replies to what was said to him under the circumstances tended to show that he was guilty, but the testimony of what was said to him was not in and of itself evidence that the statements made to him were true.
Suppose that at the interview between the deceased and the witness Hubert, if there was such an interview, the deceased had said that Trefethen was the father of her child; evidence that the deceased said this is clearly hearsay and is not admissible to prove that
He was the Father;
but suppose that it had been denied at the trial that the deceased knew that she was pregnant, testimony that she had said that she was pregnant would be some evidence that she knew it.
If, the day before her death, she had written a note addressed to her mother, stating her condition and declaring her intention to drown herself, and had left it in her desk when she went from home the following day, the admission of such a letter in evidence after proof that she had written it depends upon the same considerations as the admissibility of evidence of similar oral declarations. Such a written declaration differs from an oral declaration only in this, that writing is often a more deliberate act than speaking, but this affects only the weight of the evidence. It may also be thought that speech is a less trustworthy indication of what is really in the mind of the speaker than acts or appearance, but this, if it be so, also affects the weight of the evidence.
Certainly, to confine the evidence to acts, appearance or speech which is wholly involuntary, would be impracticable and unreasonable, for almost every expression of thought or feeling can be simulated, and although evidence of the conscious declarations of a person as indications of his state of mind has in it some of the elements of hearsay, yet it closely resembles evidence of the natural expressions of feeling which has always been regarded in the law not as hearsay but as original evidence. 1 Greenleaf on Evidence, section 102, fifth edition: and when the person making the declarations is dead, such evidence is often not only the best, but the only evidence of what was in his mind at the time.
On principle, therefore, we think it clear that when evidence of the declarations of a person is introduced solely for the purpose of showing what the state of mind or intention of that person was at the time the declarations were made, the declarations are to be regarded as acts from which the state of mind or intention may be inferred in the same manner as from the appearance of the person or his behavior, or his actions generally. In the present case the declaration, evidence of which was offered, contained nothing in the nature of narrative, and was significant only as showing the state of mind or
Intention of the Deceased.
But it is argued that this is not the law, and that it is not competent for this court to change the established rules of evidence. We have been shown no case exactly like the present, but there are decisions closely analogous, and while they are not uniform, yet we think the weight of modern authority is in favor of admitting evidence like that offered in the present case for the purpose stated.
It is argued that the decision of the Supreme Court of the United States in insurance company vs. Moseley, 8 Wall, 397, shows that that court is somewhat more liberal than our decisions warrant in admitting declarations as a part of the res gestae, and that therefore this court will not follow the decision in Hillmon vs. Mutual Life Insurance Company, 143, United States, 285. But without considering whether we should follow insurance company vs. Moseley on the subject of res gestae, we are aware of no difference in the decisions of the two courts on the admission of declarations to show the existing condition of the mind of the declarant if we except our decision in Commonwealth vs. Felch, ubi supra, which we will consider hereafter.
This court admits exclamations and declarations as evidence of existing pain in case of injuries.
In the case of wills upon the issue of sanity or undue influence this court has always admitted evidence of declarations which tend to show the condition of the mind of the testator and his intention with regard to the disposition of his property or his fear of the person alleged to have exercised undue influence.
The court then reviews at length the cases cited and continues:
It is also argued that the deceased, with reference to the indictment, is not a party, and the question whether her declarations should be received as evidence is the same as if they were the declarations of any other person than the defendant, and that evidence of a confession by a third person that he killed the deceased or of threats to injure the deceased made by him cannot be received.
The court then takes up the case of Commonwealth vs. Felch, on which the government principally relied, and states the facts of the case, which were in substance that evidence was excluded that one Mary Ann Finley, who died from a criminal operation, had said some time before her death that if one Titcomb did not perform the operation she should do it herself. The court then continues:
The decision of the court (in Commonwealth vs. Felch) that no queston [sic] of pedigree was involved in the case and that for the purpose of proving that Titcomb was the father of the child the evidence was hearsay and inadmissible. 18
Undoubtedly Correct.
But the counsel for the defendant in that case also contended that evidence of this declaration was admissible to show an intention in the mind of the deceased to perform the operation, in connection with the evidence that the operation was one which she might have performed. . . Upon a re-examination of the question we are of opinion that under the circumstances shown in Commonwealth vs. Felch, a part of the evidence should have been admitted for the purpose of showing the intention in the mind of the deceased, and that to this extent that decision must be overruled.
The person making the declaration, if one was made, is dead. She had an opportunity to commit suicide, and it was competent for the jury to find that she had a motive to commit it; and the declaration, if made, was made under circumstances which exclude any suspicion of an intention to make evidence to be used at the trial. We cannot know whether the jury would or would not have found that the deceased was the person who had the interview with the witness, or whether they would have believed the witness, or, whether if they did believe her they would have found that the deceased had really the intention which the declaration indicated, or whether the testimony, in view of all the evidence would have affected the minds of the jury; we can only say that on the facts recited in the exceptions the evidence cannot be considered as immaterial or unimportant. We are of opinion that the presiding judges erred in refusing to receive this evidence, and that for this reason the verdict against Trefethen must be set aside.
The court then takes up the other exceptions to the rulings of the court. The first is to the ruling refusing counsel for the defendant to ask one
Charles E. Ray,
a juror, who was under examination by the court upon the voir dire, to what extent he had read about the case in the newspapers. The court had previously put to the juror all the statutory questions, which he had answered to its satisfaction. The Supreme Court says this was enough, and the court did not err, as the matter was one for the discretion of the trial judge.
The court also adds: “It is plainly impossible to exclude every juror who has read in the newspapers some statement of the case, because this might exclude every intelligent man in the county. It is well known, however, that there is a growing tendency in certain newspapers to publish, not only the evidence given in any preliminary hearing on a charge of crime, but all sorts of unverified rumors and of crude opinions concerning the probable guilt or innocence of suspected persons. This reprehensible practice in a case which excites great popular interest may sometimes require extraordinary care on the part of the court in the selection of jurors, if the accused is to have an impartial trial.”
The court also holds that the court properly admitted evidence of a conversation which Tena’s mother testified to having had with Trefethen on the morning of Dec. 24, in the course of which Mrs. Davis accused Trefethen of having been with Tena the night before, an accusation which the defendant denied.
The case will now come up again in the Superior Court for a new trial.
TREFETHEN SEEN IN JAIL.
Says He Expected Such a Decision – Gained 12 Pounds in Confinement.
James A. Trefethen was seen at the East Cambridge jail this morning immediately after the Supreme Court decision was rendered.
When the reporter visited the jail, ex-Gov. Long, Trefethen’s counsel, had just asked one of the officers in charge to be taken to Trefethen’s cell.
Capt. Fisk, who has charge of the prisoner, had just made his appearance at the time, and when informed of Mr. Long’s visit and wish to see Trefethen, the latter was brought into his office.
Ex-Gov. Long greeted Trefethen in his pleasant way, and told him he had some good news for him. They then sat down, and Gov. Long informed him of the decision.
Trefethen looked him in the face, and with a smile said:
“I expected it, but it has come very sudden on me.”
Mr. Long and Trefethen then went into a private office where they chatted together for about 10 minutes.
Capt. Fisk then informed the reporter that he (Trefethen) would like to see him, and asked Mr. Long if he had any objection. The ex-governor said he would be pleased to have Trefethen give the public any news he wished.
The reporter stepped up to Trefethen, and was received with a warm shake of the hand and was offered a seat. Trefethen said:
“I am glad you have come to see me as I am ready and willing to give the press and public any information I possibly can as they have treated me fairly since I was arrested on the serious charge.”
The reporter asked him if he was surprised at the result, and he replied: “I was not. It was just what I expected. I have not worried about the case in the least since my trial. When I came here I weighed 142 pounds, and have gained considerable flesh in the nine months I have been here.”
“I would like to know what I weigh now,” said he, “and just at that moment Capt. Fisk entered, and Trefethen was taken to the scales, and tipped the scales at 154 pounds. He returned to the office with a smile, and said: “I have gained 12 pounds. Mr. Fisk has treated me well since I came into the institution, and I am very thankful to him for his kindness.”
Ex-Gov. Long was interviewed and said: “I have always been confident that the court would grant a new trial, and that was the opinion of the profession in general. I have always been convinced that there was no evidence on which he could properly be convicted. Nothing will be done now until the government takes some action.”
SINGULAR FACT.
Judge Blodgett’s Connection with Trefethen and Felch Cases.
It is a singular fact that at the trial of Trefethen the court, in rejecting the evidence of the trance medium, acted under the authority of the decision of the Supreme Judicial Court in Commonwealth vs. Felch, in which Judge Blodgett, who presided at the Trefethen case, was counsel and in which Judge Blodgett had tried to introduce the evidence which was there excluded.
The Supreme Judicial Court now overrules Commonwealth vs. Felch, and holds that the evidence which Judge Blodgett, when at the bar, contended should be admitted, is admissible, and that the ruling of Judge Blodgett, when on the bench, is erroneous, although in accordance with a decision of the court in the former case.
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