Evidence: Hearsay: Admissibility of the Declaration of Deceased in a Murder Trial as to her Fears and Threats on her Life.In Karnes v. Commonwealth, 99 S. E. (Va.) 562 (1919), it was held error to exclude evidence offered by the accused that on an occasion shortly before the murder, while driving with the accused, the deceased said, in explanation of her action in drawing her hat over her face while passing a pedestrian, that she was afraid that the pedestrian would tell one Agee that she was driving with the accused, and that Agee would kill her; and, on the day of the murder, while again driving with the accused, she said to him, in explanation of her conduct in looking back after passing a railroad station, that she was afraid that Agee was following her; that she feared violence from him; that Agee told her that he would kill her if he caught her with the accused; that Agee came to where she worked to see her, and she could not get her mind off him. The evidence of any motive on the part of the prisoner was slight. The court stated that there was much evidence tending to show motive on the part of Agee, who had also been suspected, but it is not clear from the report of the case whether some of the evidence recited by the court as tending to show motive on the part of Agee was not derived wholly from the excluded statements of the deceased. In the opinion of the court the excluded statements of the deceased should have been received as verbal acts. He says they would have been clearly admissible on the part of the commonwealth in a prosecution of Agee for the crime, and for the same reason should have been received on behalf of the accused in the present trial.

The declarations of the deceased were admittedly hearsay,1 and they were not dying declarations. When the utterance accompanies conduct to which it is desired to attach some legal effect, and when the conduct or act has intrinsically no legal significance. or only an ambiguous one, and its whole legal purport or tenor is to be more precisely ascertained by the words accompanying it, the utterance is a verbal act, or, as sometimes said, it is a part of the res gestae.3 The conduct characterized by the words must be independently material to the issue, either as a fact, directly in issue, or as incidentally or evidentially relevant to the issue. But there is a qualification or limitation to this rule requiring that the act explained be the act of the person making the declaration."

In reviewing the facts of the principal case in connection with the above rules of law, it would seem that the deceased's declarations would be allowed in evidence only in explanation of the acts done by her, that is to explain the pulling of the hat over her face, or to explain why she looked around while passing the station, and could not be

'Platner v. Platner, 78 N. Y. 90 (1879).

'Hill's Case, 2 Gratt. (Va.)_594 (1845); State v. Foley, 113 La. 52 (1904); Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274 (1884); People v. Del Vermo, 192 N. Y. 470 (1908); Merkle v. Township of Bennington, 58 Mich. 156 (1885). 33 Wigmore on Evidence, sec. 1772; State v. Fitzgerald, 156 N. Y. 253 (1898); Insurance Co. v. Mosely, 8 Wall. (U. S.) 397 (1869).

'Patten v. Ferguson, 18 N. H. 528 (1847).

"Ross v. Bank of Burlington, 1 Aik. (Vt.) 43 (1825); State v. Kester, 201 S. W. (Mo.) 62 (1918); People v. Benham, 63 N. Y. Supp. 923 (1900).

admitted to elucidate the acts of Agee. Acts of third persons, disconnected with the crime cannot be proved', since the proof must connect the third person with the perpetration of some deed entering into the crime itself. As the deceased's acts alone were not relevant or material, and as the words themselves were not relevant to the issue, there seems to be no reason for admitting the words and acts of the deceased when they are used in connection with each other.' Only to the extent that the explained actions of the deceased circumstantially tend to show some connection of Agee with the crime can they be proved. Does the fear of deceased that Agee would kill her in anyway tend to prove that he did in fact commit the crime? Where there is no direct proof as to who did the killing, motives for killing have some circumstantial bearing on who might have done it. But does the fear of deceased throw any light whatever on possible motives or acts of Agee? In Woolfolk v. State, 10 where one of the persons killed made a statement to her father, nearly a week before the killing, as to her fear that her life was in danger from the defendant, and that from the way he treated her she expected to be killed, the statement was not admissible in evidence." Likewise, declarations of the deceased that he was afraid another person than the prisoner would kill him are inadmissible for the defense.12 The court held, in Franklin v. State13 that it was not error to refuse to permit the defendant to prove that the deceased declared some days before his death that if his friends had not interfered, he would have "fixed" the defendant.14

It is submitted that, in view of these authorities, the court should not have admitted the evidence given by the prisoner.

R. Alexander McClelland, '21.

Jurisdiction of Court of Claims in Tort Cases against the State.Two recent cases raise the question as to the liability of the State of New York in private claims against it under the jurisdiction of the Court of Claims, as declared by the enactment of section 264 of the Code of Civil Procedure. In Green v. State of New York, 107 Misc. (N. Y.) 557 (1919), there was a claim for damages for injuries received by claimant, as the result of a collision upon the public highway between an automobile in which claimant was a passenger, and another driven by a chauffeur employed at the College of Agriculture at Cornell University. The claimant alleged that the collision was occasioned solely by the negligence of the chauffeur, and that the latter was a servant of the state, for whose negligence the state is liable

"Wright v. Doe dem. Tathan, 7 A. & E. (Eng.) 311 (1837); Lund v. Tyngsborough, 9 Cush. (Mass.) 36 (1851); Kilburn v. Bennett, 3 Metc. (Mass. )199 (1841); Enos v. Tuttle, 3 Conn. 247 (1820).

Stout v. State, 92 N. E. (Ind.) 161 (1910).

Carleton v. People, 150 Ill. 181 (1894).

'Pinney v. Jones, 64 Conn. 545 (1894).

1081 Ga. 551 (1888).

"Tatum v. State, 13 Ala. 32 (1902).

12State v. Patrick, 48 N. C. 443 (1856).

1341 Tex. Cr. Rep. 21 (1899).

14Accord, Norwood v. State, 65 So. Rep. (Ala.) 851 (1914).

according to the rule respondeat superior. Smith, J., writing for the Court of Claims, said that the chauffeur was not a servant of the state, but of Cornell University, and therefore that the state was not responsible for his negligence, but also declared that even if the chauffeur were the servant of the state, in establishing, maintaining and administering the College of Agriculture, the state was exercising a governmental function, and hence was not liable. Section 264, Code of Civil Procedure, was construed, and was declared not to mean that the state had consented to be held liable in every case where an individual or corporation would be liable upon the same facts. Ackerson, P. J., and Cunningham, J., concurred in the result arrived at by Smith, J., but did not agree with him in his construction of the scope, effect, and purpose of section 264 of the Code of Civil Procedure, and left it in doubt what they thought as to whether Cornell University was a state agency.

In McAuliffe v. State of New York, 107 Misc. (N. Y.) 553 (1919), the death of a militiaman was caused by negligence and incompetence on the part of one of the physicians at a state armory in vaccinating him. It was held that the state is not liable in damages for torts of its agents while performing an act of the state in its sovereign capacity.

These cases raise the question: has the state, by the enactment of section 264 of the Code of Civil Procedure, abdicated its sovereign right not to be held liable in damages for torts committed by its agents or servants, and consented to be held liable in every case in which an individual or corporation would be liable on the same facts? In the absence of express legislation authorizing it the State cannot be held liable in its courts for the tortious acts or conduct of the officers or agents employed or appointed by it. In England this doctrine has been an outgrowth of the maxim, "The king can do no wrong. This maxim has never had application in this country,3 for the reason that in England and in the colonies in all relations of property the sovereignty was represented by the crown, but in this country all the rights of the crown in this respect were in the people. This rule of law as to the immunity of the government from liability for the torts committed by its officers in this country has been really based (1) upon the fact that the government is not regarded as a subject of private law, and (2) upon grounds of public policy. The first reason and the grounds upon which it is based are well expressed by Professor Freund in an article on "Private Claims against the State": "The view that the tort is an act of the government by no means entails the government's liability as a logical conclusion.

State v. Hill, 54 Ala. 67 (1875); Ray County v. Bentley, 49 Mo. 236 (1872); Clodfelter v. State, 86 N. C. 51 (1882); United States v. Kirkpatrick, 9 Wheat. (U. S.) 720 (1824); United States v. Van Zandt, 11 Wheat. (Ü. S.) 184 (1826); United States v. Nichols, 12 Wheat. (U. S.) 105 (1827); Gibbons v. United States, 8 Wall. (U. S.) 269 (1868); Story on Agency, (9th Ed) sec. 319.

21 Blackstone's Commentaries (Lewis's Ed) Chap. 7, p. 244.

3Langford v. United States, 101 U. S. 341 (1879), in which Justice Miller said, "We do not understand that either in reference to the government of the United States, or of the several states, or of any of their officers, the English maxim has any existence in this country.'

48 Political Science Quarterly 625.

The rule that a tort creates a liability for damages is a rule of private law; it, therefore, is applied to the relations of private law only. The position of the state where it acts in the exercise of sovereign and governmental functions is, however, entirely beyond the sphere of private law, and must be judged by different standards. If the courts were called upon to administer abstract justice, they might find ample ground in many cases for decreeing reparation of legal injuries by the state, but applying, as they have to, the principles of the common law, they cannot evolve a liability of the state in its sovereign capacity, for the reason that government functions do not create civil causes of action and that rules of private liability are inadequate to govern cases where no private relations exist." But the courts, in their treatment of the cases have based the rule upon grounds of public policy. And so it has been uniformly held that the state is not liable to suit, unless expressly authorized by the constitution or legislature of the state." Where there is no such authorization extending the jurisdiction of the courts to the determination of claims against the state, an appeal to the legislature is the only remedy of the citizen against the sovereign, whether the claim arose in consequence of wrongful acts of state officers or agents, or upon contracts made under authority or in behalf of the state."

However in a number of states actions against the state are expressly authorized. In New York the question is covered by section 264 of the Code of Civil Procedure, which provides "The court of claims possesses all of the powers and jurisdictions of the former board of claims. It also has jurisdiction to hear and determine a private claim against the state, including a claim of an executor or administrator of a decedent who left him or her surviving a husband, wife, or next of kin, for damages for a wrongful act, neglect, or default, which shall have accrued within two years before the filing of such

'Lewis v. State of New York, 96 N. Y. 71 (1884); Sipple v. State of New York, 99 N. Y. 284 (1885); Stone & als. v. State of New York, 138 N. Y. 124 (1893).

Supra, notes I and 5.

'Litchfield v. Bond, 186 N. Y. 66 (1906).

State v. Hill, 54 Ala. 67 (1875); Whitney v. State, 52 Miss. 732 (1876); Green v. State, 53 Miss. 148 (1876); State v. Stout, 7 Nebr. 89 (1878); State v. Bank of Tennessee, 59 Tenn. 395 (1874); Chicago Ry. Co. v. State, 53 Wis. 509 (1881).

It may be interesting to trace an attempt which was made to bring a suit by a citizen against his own state in the federal courts on a purely federal question. In Harvey v. Commonwealth of Virginia, 20 Fed. Reporter 411 (1884), it was argued that the power of the federal courts extended to all cases in law and equity arising under the constitution and laws of the United States, irrespective of parties; and hence that a suit by a citizen against his own state on a federal question could be brought in the circuit courts. The federal court allowed such an action. At page 415 of the opinion it was said, "The ordinary rules of construction would therefore seem to sustain the proposition that of suits against states by their own citizens for rights arising under any clause of the Constitution or laws of the United States, the federal courts have jurisdiction, to be regulated in its exercise by such laws as congress may prescribe as to practice and forms of procedure; especially in cases in which those citizens are allowed by state laws to sue their own state in state courts." However, by a later case in the United States Supreme Court, no action against the state was allowed. See Hans v. Louisiana, 134 U. S. 1 (1889), where the court stood upon an historical construction of the constitution.

* * * *

claim, and the state hereby consents, in all such claims, to have its liability determined. In no case shall any liability be implied against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity."

By two decisions in the Court of Claims, and one before a referee1o, whose decision was affirmed by the Appellate Division of the Supreme Court, it seems to have been established that the state is liable in all cases in which an individual or corporation would be liable upon the same facts. In the Burke casell an action arose out of the maintenance by the state of an inclined railway at Niagara Falls. There was an accident, and the claimants were injured because of the alleged negligence of the state officers. Recovery was allowed on the ground that "the State, in submitting itself to the jurisdiction of a tribunal with respect to claims against it for damages sustained by reason of any action, subjects the determination of its liability to those rules which usually obtain in determining the liability in similar cases between individuals and corporations.'

The cause of action in the Arnold case12 arose from the operation and conduct of the state fair at Syracuse. The State Fair Commissioners were in charge of the work of conducting and managing the automobile races which were a feature of one of the days during the progress of the fair. One of the racing cars ran through a wooden fence along the race course, and killed and injured a large number of persons, among them the claimants in this case. The action for damages before the Court of Claims was based upon the alleged negligence of the officers in charge of conducting the races, who were state agents. The remarks of Vann, official referee, whose decision was affirmed by the Appellate Division of the Supreme Court, in construing the operation of section 264, are important: "While the State, being a sovereign, cannot be sued by a subject without its consent, by one of its own statutes passed as an act of justice to its subjects it has expressly assumed liability for damages caused by "a wrongful act, neglect, or default" on its part and has authorized the Board of Claims to hear and determine all claims founded on its negligence, which necessarily means the negligence of its own officers acting within the apparent scope of their powers, or while engaged in conducting its business. It has also provided that its liability in such and other cases shall be measured by "such legal evidence as would establish liability against an individual or corporation in a court of law or equity." * * * The officers of the State are like the officers of a corporation and bind the State in the same manner by acts done within the limits of their authority. While the Commissioners were not authorized to be negligent any more than the officers of a corporation are so authorized, still they had the capacity to be negligent, and if, in holding a fair for the State they were

'Burke v. State of New York, 64 Misc. (N. Y.) 558 (1909): Smith v. State of New York, 13 State Dept. Rep. (N. Y.) 57 (1917).

10 Arnold v. State of New York, 163 App. Div. (N. Y.) 253 (1914).

"Supra, note 9.

12 Supra, note 10.