Albuquerque evening herald. [volume] (Albuquerque, New Mexico) 1911-1914, 1912-07-18

dence cannot be- procured. II Is in-
correctly said by many text,writoFS
that the hearnay rule IL only a poT-
ton OF what Is known BY meny law
yers as the hest evidanro rule" ~
the modification herein suggested woro
adopted BY elther legislatures or
coarls. Il eohld be accurately called q
part OF our "heHt cvidelco rule" and
tho best evidences rule 10 a feature Of
our adjective law. concerning which
there has been very little criticism.
and which II undoubtedly one OF tho
best features OF our modern law OF
evidence. HFF
To make modification would DO
In accordance with the later dceis-
tons Of the supreme court % tho Unit
ed states. who are now disposed 10
abandon the highly technical reason
Ing. which, although highly aaiisfnc-
tory and Intensely interesting TO tho
analytical MIND Of tho scholar ehd
technical jurlss, ~ some times gross
~ promotiyc OF injustice.
In our Jurisdiction there u. az far
as have been able to ascertain. only
one general modlncatlon Of what can
be designated AZ 'hoaTsay exceptions
at the common law. There are. for
Instance, certain special modlncationu
OF the rules OF evidence In reference
10 the introduction Of certain docu-
mentH such as. for instance. certified
copies OF certain records. and certified
copies OF recorded brands. but the one
general mobilization N found In Sec
ton sO3i Of the Compiled Laws Of
1891. and IL az follows;
thereafter la the trial Of civil
cases In the courts OF this territory,
the books OF accounts Of any mer-
chant. shop-keeper. physician, black
smith or other person doing regular
business and keeping daily entries
thereof. may be admitted In evidence
~ ,proof of such accounts upon the
following conditions;
First That he kept no clerk. or
else the clerk IL dead or inaccessible.
Second. Upon proof. the paFiy's
cath being sufficient. that the book
sendered In the book Of original en-
tries.
"rhlrd. Upon proof, by his custo-
mers. that he usually kept correct
books.
Fourth. Upon inspection OF the
court 10 see II the books are free
from any suspicion OF fraud"
Generally speaking, the common
law. IN reference 10 this subject, was
That entries In the books of shop
Keepers were admissible only when
made In books kept for tho purpose
and when made contemporanoousl
with the delivery OF the goods BY the
person whose duty Il was 10 make
them. and was admissible only whern
better evidence was not obtninablu.
Even under those circumstances, II
can 30 seen that the common-iaw u
materially modinCd In reference %
tho so-ci1iod shop rule" exception.
The declHlong Thy tho supreme courl
OF this Jurisdiction upon the subject Of
hearsay have been comparatively few
reference. 10 Mr. James DcFden'a d.
Kest or the Now Mexico Decisions ~
20 volume "a. inclusive. shows that
under tlip subtitle "1fearaHy'' OF the
title Of f,t14iuencc.y there are only twc
declaonR hat 3 kInnco at Ms ciaAsl-
I HNNNN4M NaaaAa AtAAA~ NINFN4NN y ~ 49,"
Of "Evidenaa" shows that his ciunHi.
fcatlon is entirely different from the
classification used 10 our common d.
gests. such ~ eye ahd the Century
and from thc classification pand b,
practically all ~ or fext wfitofs Up
on the subject. Thus u viii ho per-
celved that tho subject title, admiE'
sions. declarations ana d0eumenferl
: evidence and evidence az former trial.
, or PROCEEDINGS, are all instances 81
, subject titles which are usually in
cluded under the general head o
, ''llearaay." and the decisions nnde
these titles are properly decisions up
} On The subject usually known a. hear
/ say. some OF these decisions. Il j
} true, have established nFeuedent
/ wnlch our auprome court may be IN
7 Willing 10 modify or overthrow. bu
II ID true novsrtheleaa that these %
; cieiona are ysFy few IN numbeF. an
; III no mennoF Or s'ay constitute any
. thing like lho weil-estRbllBhcd pre-
codenls which were overthrow b
! fhe Vincent case. IN the cnss ol Ter
Fliofy W. XarnoFTy, 2 n. NJ, 3ol, tti
4 ID held that declarations MADE b
7 the ddoeneed just prior 10 the honl
eide were inA1miEelbic a. efldeno
| whore the testimony showed that IN
deceased and fha defendant wer
. ggFanaofB 10 eaoh other, The declp
+ lon does not disclose euilclpht 81 o.
evidence onsred 70 determine acnur
/. stciy whether % not the toslimon
offered and excluded w the tfla
Judge was loalcally relevant and de
taFmlnntivo of any % The issues 4
the rene. but n suoh testimony Wa
foIgyanl Il should hatn been adni1
alhio unaer fhn boat evidences Ful,
and lhA cOnslfuoiioh % the hearaa
rule ndyocal9d h1soln becnuee p
u1llff ~a1Hn n fl19nto than hear
t s ID tan hard,
Iha 1a4alI4utA IhAt the detlalon WI
colro1k o. oRDlylnB hoafeny fale -
4 "a AZ nrteenl nnooraioOdf iho le8l
Itnnt wax anu2ht ~ ~ introduced 4
: peEllon of lhe rps eol'lap, aud n