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Todd v. The State.

guilty of a particular crime, it is not admissible to show that on another occasion and at another place he committed, or attempted to commit, a similar crime; for the reason that the two facts bear no certain or probable relation to each other, but are wholly disconnected. Such evidence may create a bad opinion of the general integrity of the accused, and thus incline the mind of the jury to a readiness to believe him guilty as charged in the cause on trial. But this the law will not allow. The State is not at liberty, even by the usual modes of showing character, to attack the accused in that particular, unless he first invites it by evidence upon the subject.

So, as to the statements of Bechtel. This was purely hearsay, and not, as seems to us, an exception to the general rule which excludes hearsay as evidence. We are aware that where one in dealing with another refers to a third person for information, and the third person, being applied to, makes statements upon the faith of which the party acts, such statements are sometimes admissible in evidence, the same as if the statements had been made by the person who gave the reference. Sometimes, indeed, there is a just estoppel which forbids him to dispute the truth of the information thus given. But where the person referred to has not been consulted until long after the business has been consummated, and has made no statements upon the faith of which any one has acted, and a question arises, long subsequently, as to what was the real 'truth of the matter, we know of no reason and no authority for the position that his statements then made, not under oath, shall be admitted as proof of the facts. Such a doctrine would be full of danger; would in criminal cases subject the accused to the peril of conviction upon statements made for the purpose, without the sanction of an oath or the tests of a cross-examination; and would not find support even in the unsatisfactory plea of necessity.

It was not necessary to prove all the pretenses charged

Todd v. The State.

in the indictment. Rex v. Ady, 7 C. & P. 140; Commonwealth v. Morrill, 8 Cush. 571; State v. Mills, 17 Me. 211.

The proof of the representation of the value of the property did not agree with the averment of the indictment as to amount. Instead of the Ashland house and lot having been stated by the prisoner to be worth $2,600, he stated that it was worth $2,200 or $2,300. In The People v. Herrick, 13 Wend. 87, a similar variance was held to be immaterial, in a case very much like this. But in Commonwealth v. Davidson, 1 Cush. 33, there was a contrary decision upon the question. So, also, in O'Connor v. The State, 30 Ala. 9, and Rex v. Plestow, 1 Campb. 494. In the last case, Lord ELLENBOROUGH said, “In an indictment for false pretenses, the pretenses must be distinctly set out, and at the trial they must be proved as laid.” So, also, the rule is stated in 2 Russ. Crimes, 310. Sums of money, dates, &c., need not usually be averred with accuracy, but when, as in this case, they constitute a part of the description of the offense, they stand on a like footing with other matters of description, and must be proved as laid. It is believed that the New York case is not supported by any authority whatever.

Reversed, and remanded for new trial. Prisoner to be returned, &c.

W. A. Woods, J. D. Arnold, A. S. Blake, and R. M. Johnson, for appellant.

D. E. Williamson, Attorney General, for the State.

Since Morgan v. The State, ante, p. 193, was stereotyped, the case of Regina V. Jenkins, Law Rep. 1 C. C. R. 191, has been published. BYLES, J., there says, “Dying declarations ought to be admitted with scrupulous, and I had almost said with superstitious, care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subjected to cross-examination, and is in no peril of prosecution for perjury. There is also great danger of omissions, and of unintentional misrepresentations, both by the declarant and the witness, as this case shows. In order to make a dying declaration admissible, there must be an expectation of impending and almost immediate death, from the causes then operating. The authorities show that there must be no hope whatever. In this case the deceased said originally she had no hope at present. The clerk put down that she had no hope. She said in effect when the statement was read over to her, "No, that is not what I said, nor what I mean. I mean that at present I have no hope;' which is, or may be, as if she had said, 'If I do not get better I shall die.'',

All the court were of opinion that the conviction should be quashed.

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See LANDLORD AND Texant, 1, 2.


Evidence.---The fabrication of an alibi,

like the wilful introduction of false
and fabricated evidence in support
of any other ground of defense, is
a circumstance against the accused,
to be weighed by the jury in con-
nection with all the other evidence
in the case; but where the evidence
tending to prove an alibi is uncon-
tradicted, and the witnesses are un-
impeached, and the facts testified to
are rcasonable in themselves, the
failure of the defendant to account
for his whereabouts during all the
time within which the offense was
probably committed should not be
taken as a circumstance tending to
prove his guilt. White v. The State.262

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OW, 3.

See Barr v. Barr, 240.


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See Pleading, 1, 3, 5, 9, 10, 12, 14, 19, Promissory Note.- Consideration. -
20, 21, 25, 26, 27.

Failure of.--A prosecution for bas-

tardy was submitted to referecs,

whose report recited the submission

of "the said prosecution and case
See BROOKOVER v. Forst, 255. of bastardy," the award of a certain

sum in instalments, and the execu-
1. From Interlocutory Order.-- Ad- tion of certain notes therefor by the

ministrator.-In a suit by an admin- father of the child to its mother and
istrator to subject real estate to sale her father and guardian; that, in
for the payment of the debts of the consideration of said notes, the
decedent, an appeal to the Supreme mother acknowledged a sufficient
Court from the interlocutory order provision for the education and
of sale was taken, an appeal bond maintenance of the child; and that
approved by the court being filed the father and guardian of said
and the appeal prayed at the term mother, in consideration of the fore-
at which the order was made.

going premises, released and waived
lleld, that the appeal was authorized all right of action for damages and

by the code (section 576), and tak- any and all proceedings for seduction
cn in accordance with its provisions arising out of, or in any way con-
(section 577). Simpson et al. v. Pear- connected with said case of bastardy.
son, Adm'r......

.1 IIeld, in a suit on one of said notes
2. Fugitive from Justice.—No appeal the award being all the evidence ia

by the State to the Supreme Court relation to the consideration there.
lies from the ruling of a judge dis- of, that the maker could not claim
charging from arrest a prisoner that such consideration had failed
brought before him for examination by the death of the child. Eaton
as provided by the act of March 9th, et al. v. Burns et al........ .390
1867 (Acts 1867, p. 126), "to regu-
late the arrest and surrender of fu-

gitives from justice from other states
and territories." The State v. Mor- Justification.— Military Order.— Eri-

dence.--A sergeant of volunteers in
3. Vacation of lighway.—Where, in the army of the United States in

a proceeding to vacate a highway the last war, having received a writ-
on the ground that the same is not ten order from the proper military
of public utility, viewers are ap- authorities to arrest certain desert-
pointed, who report in favor of the ers, in this State, and any others of
petition on the ground stated there- that class, and all persons who should
in, and, upon objection being made interfere with such arrests, made the
to the vacation, other viewers are arrest of said deserters at night;
appointed who report against the and the party having them in charge,
public utility of the vacation, no under command of said sergeant,
appeal lies to the circuit court from was fired upon from a wood, not far


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