Evidence Commons^™

Evidence-Scope Of The Business Entry Exception To The Hearsay Rule Under Present Statutory Modification, John M. Veale S.Ed.

Michigan Law Review

The business entry exception to the hearsay evidence rule has been prolific of legal literature and litigation. Originally the law regarded all business entries as inadmissible in evidence to prove the truth of the facts recorded. However, at early common law the shopkeeper could not himself testify to the truth of a transaction, since he was an interested party; and if he kept no clerk, or his clerk were unavailable, no one else could so testify. In response to this evidentiary dilemma there appeared a double-barreled exception to the hearsay rule; namely, that business entries by a party (The Shopbook …

Evidence-Hearsay-Impeachment Of Hearsay By Declarant's Inconsistent Statements, Ira M. Price, Ii S.Ed.

Michigan Law Review

In an action of trespass to try title to land claimed through adverse possession by defendant, the date when defendant first asserted a hostile claim to the premises so as to start the ten year statute of limitations was in issue. Plaintiff's witness, W, was allowed to testify that defendant had told him and others that plaintiffs owned individual interests in the land and that he did not exclusively claim the land. Defendant's witness, Y, then testified over objection that witness, W, had told him that defendant had long claimed the land, and had farmed and fenced …

Witnesses - "Dead Man's. Act" - Discretion Of Court, George A. Rinker S.Ed.

Michigan Law Review

In an action against an executor to recover money alleged loaned to decedent, plaintiff introduced testimony of a third party regarding a conversation between plaintiff and decedent in which decedent said, "I owe you five hundred and twenty dollars and you will get every cent of it." Plaintiff then testified, over objection, as to the circumstances and terms of the alleged loan. The transaction was oral, and there was no other evidence relating to the circumstances or terms of the loan. From a judgment for plaintiff, defendant appealed, assigning as error the overruling of his objection to plaintiff's competency as …

Evidence-Parol Evidence Rule-Admission Of Parol Evidence To Show Contract Was Sham, Frank E. Roberts S.Ed.

Michigan Law Review

Plaintiffs, executors, brought a bill in equity for an accounting on a contract between defendant and one Broder, deceased, dated April 27, 1944, as modified by a writing dated July 24, 1944. In support of a motion to dismiss, defendant offered parol evidence to show that the writing dated July 24, 1944 was actually executed December 31, 1944 and was not intended to bind the parties, but was designed to effectuate a scheme by which certain advancements to be made to Broder for services rendered in 1945 would be treated as salary paid to Broder during 1944 for purposes of …

Criminal Law-Manslaughter-Effect Of Violation Of Statute Or Ordinance On Criminal Negligence, C. E. Becraft

Michigan Law Review

Defendant was convicted of the crime of negligent homicide and appealed, alleging that the Louisiana statute, making violation of a statute or ordinance presumptive evidence of criminal negligence, was repugnant to the due process clauses of the state and federal constitutions. Held, affirmed. The effect of the statute is merely to shift the burden of introducing evidence of one element of the crime charged: that of criminal negligence. The presumption does not operate as a prima facie presumption of guilt of the crime -and the state must still prove every element of the offense. State v. Nix, (La. …

Criminal Law-Search And Seizure-Admissibiliy In State Court Of Evidence Illegally Seized By Federal Authorities, Andrew W. Lockton, Ill

Michigan Law Review

Two federal narcotic officers accompanied by two state officers went into the defendant's residence, under the authority of a search warrant which authorized search only for marihuana. The search was fruitless. Observing an automobile in front, the two federal officers said something to the defendant, to which he replied, "why sure-look it over; you won't find anything in there." The federal officers were already searching the automobile when the state officers approaching the automobile saw a bottle of whiskey on the floor-board of the car. So far as can be gathered from the opinion, the state officers did not participate …

Evidence-Uncontradicted Testimony, Robert L. Cardon S.Ed.

Michigan Law Review

The great majority of jurisdictions in the United States recognize the rule that in civil cases "clear, positive, direct and undisputed testimony, not improbable or contradictory, given by an unimpeached witness, cannot be rejected or disregarded by either court or jury, unless the evidence discloses facts and circumstances which furnish a reasonable ground for so doing." It is the purpose of this comment to discuss (1) the reasons underlying this rule, and the extent to which it is recognized, rejected or limited in various jurisdictions; (2) the application of the rule to fact situations in jurisdictions where it is recognized.

Evidence-Documentary Proof Of Market Value Of Personal Property-Admissibility-Relationship To Oral Testimony Based Thereon, P. F. Westbrook, Jr. S.Ed.

Michigan Law Review

Even the most casual observer of modern business practices will accede to the general proposition that the most accurate reflection of market value for many commodities can be found in documentary sources. This is particularly true of those commodities of an homogeneous character which are sold in well-organized markets characterized by price uniformity and free access to price information. Of them, it may well be said that no more satisfactory evidence of market value than the newspaper market reports can be found, barring the possibility of personal observation of "the board" at the market itself. However, the average businessman will …

Federal Courts-Federal Rules Of Civil Procedure-Duty Of Court In Non-Jury Action On Motion To Dismiss Under Rule 41 (B), Merrill N. Johnson

Michigan Law Review

The federal government brought an action to restrain the United States Gypsum Company and thirteen other corporate and individual defendants from alleged violations of the Sherman Anti-Trust Act. Most of the government's evidence came from defendant's officers, employees, and documents with the result that evidence favorable to both the plaintiff and defendants was presented. The government's case required over five months to present and 10,000 pages to record. The defendants then moved to dismiss the complaint with prejudice under Rule 41 (b). In the hearing on this motion, the government contended that the sole question presented was one of law, …

Agency-Liability Of Agent On Contract For Principal-Effect Of Adding "Agent" To Signature, John A. Huston

Michigan Law Review

Defendant, a real estate broker purporting to act for X, made a contract with plaintiff for the sale to plaintiff of X's farm. The only evidence in the writing of defendant's agency was the word "agent" which he appended to his signature. Plaintiff paid defendant $1000.00 as a deposit which defendant tendered to X who returned $500.00 to defendant as his commission for the sale. Upon destruction of an important part of the premises before execution of the contract, plaintiff brought suit against X and defendant to rescind the contract and recover the deposit. Recovery against X was …

Evidence -Witnesses - Privileged Communications Between Physician And Patient--Statutory Effect Of Asserting Privilege In Actions On Insurance Contracts, William H. Buchanan S.Ed.

Michigan Law Review

Plaintiff, beneficiary of an insurance policy (but not the personal representative of the deceased insured), sued to recover the amount of the policy from the insurance company. As a defense the defendant claimed that the policy never became effective because the insured had made material misrepresentations in the application as to his state of health. To show that there had been such misrepresentations, the defendant proved that the insured had been treated by physicians during the five years preceding the issuance of the policy. Upon objectionμ by plaintiff the court excluded the testimony of the doctors as to the nature …

X-Ray Pictures As Evidence, Charles C. Scott

Michigan Law Review

The courts often are accused of being too slow in accepting the benefits of new inventions, but certainly they are not subject to this criticism in regard to the use of X-ray photographs as evidence. Within a year of Roentgen's discovery of X-rays in 1895, radiographs were admitted in evidence in the case of Smith v. Grant tried in the First District Court of Colorado. Ever since then courts have shown little hesitation in permitting the introduction of X-ray photographs in evidence. Today the rule is now firmly settled that with certain definite restrictions X-ray pictures are competent evidence of …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Evidence--Recent Developments (A Service For Returning Veterans), John E. Tracy

Michigan Law Review

The developments in the law of evidence in the war years have not been great. They have been mainly along the lines of tests for witnesses, the use of confessions in criminal cases, the interpretation by the courts of the so-called "Business Entries" Act and the adoption by the American Law Institute of a proposed Code of Evidence.

Trial Practice-Demurrer Upon Evidence As A Device For Taking A Case From The Jury, Charles H. King

Michigan Law Review

By far the oldest of the common law devices for taking a case away from a jury is the demurrer upon evidence. A reported instance of its use appears as early as 1456.

Evidence--Hearsay And Circumstantial--Infant As Witness--Indecent Liberties, Rosemary Scott

Michigan Law Review

In the prosecution of the defendant for taking indecent liberties with a female under sixteen years of age, testimony respecting the features of the house and neighborhood where the offense occurred as narrated by the complaining witness to her mother was objected to as hearsay; and testimony of a second child as to advances made by the defendant in the same vicinity was objected to as putting in issue his character. Held, that the mother's testimony as to the statements, made to her by the child soon after the offense, were competent to show that the child had knowledge; …

Evidence-Two Witnesses Rule In Action For Perjury, Milton D. Solomon S.Ed.

Michigan Law Review

The petitioner was convicted of perjury. The trial judge refused to give the following instruction to the jury: "The government must establish the falsity of the statement alleged to have been made by the defendant under oath, by the testimony of two independent witnesses or one witness and corroborating circumstances. Unless that has been done, you must find the defendant not guilty." The petitioner was convicted and the circuit court of appeals affirmed the district court. Held, the refusal of the district judge to instruct the jury as requested was reversible error. Weiler v. United States, (U.S. 1945) …

Federal Procedure-Appeal Under Federal Food, Drug & Cosmetic Act--Scope Of Admiralty Appeal Compared With Appeal Under The New Federal Rules, De Witte Chatterton

Michigan Law Review

Appellee, the United States government, by a proceeding in rem, sought to condemn two shipments of canned oysters packed by appellant, the C. C. Company, under the Federal Food, Drug and Cosmetic Act, on the ground that the oysters were wholly or partially decomposed. The district court found for the appellee on conflicting evidence of experts, and appellant appealed to the Circuit Court of Appeals for the Fifth Circuit. On the theory that procedure on appeal should conform to appeals in admiralty, the circuit court of appeals reviewed the whole case de novo, reversed the district court on the ground …

Joint Tenancy-Effect Of Word "Jointly"-Parol Evidence As To Intent

Michigan Law Review

The common law rule was well settled that a conveyance to two or more, not husband and wife, made them joint tenants, not tenants in common, unless language was used to show an intent that they were not to be joint tenants. The reason for such a rule having passed, the modern rule is to the opposite effect-two or more conveyees, with certain exceptions, are presumptively tenants in common. The Illinois statute, for example, declares that "no estate in joint tenancy in any lands ... shall be held or claimed under any grant . . . unless the premises therein …

Bills And Notes--Irregular Indorsers--Parol Evidence

Michigan Law Review

Defendant signed a note otherwise than as maker. Held, error to exclude evidence that he was a co-maker. Glick v. Lieb, (App. Div. N.Y., 1944) 53 N.Y. Supp. (2d) 80.

Evidence-Effect Of Presumption Against Suicide, Edwin Boos

Michigan Law Review

Asserting that the deceased met his death by accidental drowning, appellant sued as beneficiary to recover under a double indemnity clause of an insurance policy issued to the deceased by the defendant. The defense was that the deceased committed suicide and that a clause in the policy prevents recovery of double liability under such circumstances. The jury found for the defendant and, on appeal, the beneficiary contended that the trial judge committed prejudicial error against her by refusing to instruct the jury that there was a strong presumption against suicide and in favor of accidental death. Held, the code …

Evidence - Admissibility Of Age In Hospital Record As Business Entry, Craig E. Davids

Michigan Law Review

Representing his birth date as 1866, deceased purchased from defendant insurance company in 1921 a policy on his life, which provided that in the event of any misrepresentation of age the insured's beneficiary would receive only that amount which a standard policy issued at his true age would stipulate for the premiums paid. In a suit by the beneficiary to recover on the policy, defendant attempted to prove that deceased was born at least as early as 1862. Among other evidence, defendant introduced a hospital record of deceased's visit to a particular institution in 1936 where he represented his age …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Criminal Justice In Germany: Ii, Hans Julius Wolff

Michigan Law Review

The trial (Hauptverhandlung) is the main and central part of the whole criminal proceeding. All that is brought forward in the trial and only what is brought forward there can furnish the basis for the verdict. Whatever has preceded the trial proper becomes irrelevant as soon as the trial is opened.

The principles governing the trial are publicity, orality, immediateness, and concentration.

Evidence-Police Regulation By Rules Of Evidence-Results Of The Mcnabb Case, John B. Waite

Michigan Law Review

In McNabb v. United States the Supreme Court promulgated novel judicial legislation, the gist of which is that confessions or admissions of crime made while the accused is in custody without having been brought before a magistrate as required by law are inadmissible in evidence. That judicial pronouncement assumed that the utterances were made without compulsion, and prohibited their use solely because at the time they were made the officers of justice were themselves disregarding the law-the procedural requirement that persons arrested be taken immediately before a magistrate. In Justice Frankfurter's phrase, "a conviction resting on evidence secured through such …

Evidence-Police Regulation By Rules Of Evidence, John Barker Waite

Michigan Law Review

The judicial rules of Evidence, said their great expounder, "were never meant to be an indirect process of punishment." Yet twice the Supreme Court has promulgated new rules of evidence for precisely that purpose. The rule that evidence is inadmissible, regardless of its relevance and materiality, if it was obtained by unreasonable search was first suggested by Justice Bradley, who wrote the majority opinion in Boyd v. United States in 1886. The other rule was voiced in 1943 by Justice Frankfurter, writing the majority opinion in McNabb v. United States. And each rule demonstrates the inherent evil of judicial …

Abstracts, Benjamin M. Quigg, Jr.

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Evidence-Judicial Notice By Appellate Courts Of Facts And Foreign Laws, Not Brought To The Attention Of The Trial Court, Hobart Taylor, Jr.

Michigan Law Review

The general problem to be discussed in this comment is the process and supporting reasons used by appellate courts in their determination of the propriety of taking official cognizance of facts not brought to the attention of the trial court. This necessarily removes that great and complex body of case and statutory law dealing with situations where a court is called upon to take judicial notice of local statutes, municipal ordinances, and other similar matters of law. Also specifically excluded from discussion are the cases where error is alleged because the trial court refused to take notice of a fact …

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Administrative Law - Extent To Which Hearsay Evidence May Constitute Basis For Award By Workmen's Compensation Commission, Mary Jane Morris

Michigan Law Review

Claimant suffered a coronary occlusion and as a result was totally disabled, being unable to speak coherently or to understand what was said to him. The State Industrial Board found that the claimant's total disability was the result of accidental injuries which arose out of and in the course of his employment. An award was made. The claimant was incapable of giving testimony and no witness was produced who saw the accident. The referee who heard the claim admitted hearsay testimony to the effect that claimant complained of a heartburn to fellow employees after having lifted and emptied a boiler …