jury has been reached in Vermont (Rowell v. Fuller's Estate, 59 Vt. 688, 10 Atl. 853), and apparently in Massachusetts (Costello v. Crowell, 133 Mass. 352). We are convinced, however, that the sounder rule is the one we have stated. It may be added that comparisons with standards produced in court, whether at common law or under the statutes, may be made by witnesses, or by the court or jury without the aid of witnesses. Cobbett v. Kilminster, 4 Fost. & F. 490; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170; Merritt v. Campbell, 79 N. Y. 625. * * * In view of the fact that a reversal of the judgment herein is required by the decision reached upon the two questions discussed in the earlier pages of this opinion, it would be obviously unprofitable and improper, in the face of the new trial which must be had, to express our views upon the weight of the whole evidence, and we therefore pass defendant's fourth point without further mention. In conclusion we desire to express our sense of obligation to counsel for both the prosecution and the defense upon this appeal for the fairness and ability with which the case was presented, and for the diligence in research and painstaking arrangement of details which have contributed so materially to lighten the labors of the court. The judgment of the court below should be reversed, and a new trial ordered. * * * BARTLETT and VANN, JJ., concur with WERNER, J. O'BRIEN, J., concurring in mem. PARKER, C. J., GRAY, and HAIGHT, JJ., concur in result, and dissent only as to the admissibility of the evidence tending to prove the poisoning of Barnet; PARKER, C. J., and Gray, J., writing, and HAIGHT, J., concurring with PARKER, C. J. (Supreme Court of Alabama, 1909. 159 Ala. 361, 48 South. 696.) Appeal from City Court of Birmingham; C. C. Nesmith, Judge. Action by C. W. Austin against F. G. Sheppard. Judgment for plaintiff, and defendant appeals. Reversed and remanded. The libelous matter alleged in the complaint is that the defendant said of the plaintiff, falsely and maliciously, that on a certain day he swore a lie, and he swore falsely, etc. DENSON, J. This is an action for slander. There was testimony tending to show utterance by defendant of the slanderous words attributed to him in the complaint. The plaintiff, while testifying as a witness in his own behalf, was asked by his attorney this question: “I will ask you to tell the jury whether or not it had been reported to you, after that trial in the police court of Mr. Sheppard on account of a violation of the city ordinance, that he had been going about the city of Birmingham and to various and sundry people denouncing you as a liar." The court overruled the objection of the defendant that the question called for hearsay evidence, but limited the affirmative answer "to the purpose of showing humiliation, and not to proof of offense at all." This ruling of the court is assigned for error, and is the only assignment discussed in brief of counsel for appellant. The reasons for the rule excluding hearsay or, derivative evidence are not difficult to discover, "for, apart from the circumstances that the probabilities of falsehood and misrepresentation, either willful or unintentional, being introduced into a statement, are greatly multiplied every time it is repeated, there remains the further fact that the original statement, even if correctly reported, has scarcely ever been made under the safeguards of the personal responsibility of the author as to its truth, or the tests of a cross-examination as to its accuracy." Rice on Ev. (Civ.) vol. 1, p. 367, § 212; Reynolds, Theory of Ev. §§ 16, 17; 1 Greenl. (15th Ed.) § 99; 11 Am. Eng. Ency. Law, 521; 16 Cyc. 1196; Glover v. Millings, 2 Stew. & P. (Ala.) 28, 43; Brooklyn, etc., Co. v. Bledsoe, 52 Ala. 538, 549; Mima Queen v. Hepburn, 11 U. S. 291, 3 L. Ed. 348; Hereford v. Combs, 126 Ala. 369, 380, 28 South. 582. The question propounded and objected to supposes or implies that the statements or reports made to the plaintiff were made by a person not called as a witness, and that they are prima facie and really hearsay or derivative evidence, and therefore subject to that exclusionary rule of evidence, unless they fall within some recognized exception to the rule or are saved from exclusion upon another principle. Hereford v. Combs, supra. The plaintiff, in connection with his offer to make the proof, stated to the court that he proposed to show that he went to the defendand to find out whether the report was true or not, "and it was repeated to him." If the plaintiff had stated to the defendant what he had heard, or what had been reported to him, and defendant had admitted it, the testimony admitted would have been relieved from the hearsay rule. While the plaintiff testified he did have an interview with the defendant, the majority of the court are of the opinion that his testimony as to what he "told" defendant in that interview is not even substantially what he testified had been reported to him, and, therefore, that defendant's response cannot be taken as an admission, nor operate to bring the evidence admitted, within any exception to the rule that hearsay evidence is inadmissible. Consequently they hold that the trial court committed reversible error in admitting the testimony. The writer entertains the opinion that, in the interview between plaintiff and defendant, plaintiff's statement to defendant conformed substantially to his (plaintiff's) testimony, and that the jury might infer from the defendant's reply an admission that he had uttered the statements which plaintiff testified had been reported to him. Upon first impression we were of the opinion that the testimony objected to was admissible on the ground held good by the trial court; but after more mature reflection we have reached the conclusion that that theory is unsound, and that the case cited by appellee's counsel in support of it (Patterson v. Frazer [Tex. Civ. App.] 93 S. W. 146) is not in point, when the facts of that case are closely scrutinized It results, from the holding of the majority, that reversible error was committed by the court in admitting the testimony. The judgment must be reversed, and the cause remanded. Reversed and remanded. TYSON, C. J., and DOWDELL, SIMPSON, ANDERSON, and MAYFIELD, JJ., concur. DENSON, J., dissents. 1 II. Apparent Exceptions to General Rule 1 1. STATEMENTS THE MAKING OF WHICH IS CIRCUMSTANTIAL EVIDENCE COMMONWEALTH v. TREFETHEN et al. (Supreme Judicial Court of Massachusetts, 1892. 157 Mass. 180, Indictment against James Albert Trefethen and William H. Smith for the murder of Deltena J. Davis by drowning. There was a verdict of guilty as to Trefethen and not guilty as to Smith. Defendant Trefethen excepted, and asked that the case be reported to this court for determination. FIELD, C. J.2 The principal exception is to the refusal of the court to admit the testimony of Sarah L. Hubert. The exceptions recite that: "Sarah L. Hubert, a witness called in behalf of the defendant, testified that her business, which she advertised in the newspapers, was that of a trance medium; that on December 22, 1891, in the forenoon, after 10 o'clock, a young woman called at her place of business in Boston for consultation. There was sufficient evidence to go to the jury of her identification as Deltena J. Davis. Upon objection being made to the testimony of this witness, counsel for the defendants stated to the court, aside from the jury, that they offered to prove by this witness that at the interview on December 22d, the young woman aforesaid stated to the witness that she was five months pregnant with child, and had come to consult as to what to do, and added later in the interview that she was going to drown herself. The court refused to admit the testimony, and the defendants duly excepted." The exceptions also recite that "the evidence offered in behalf of the commonwealth was wholly circumstantial, and tended to show that on December 23, 1891, Deltena J. Davis left her home in Everett at about 7 o'clock in the evening, and was last seen on the corner of Ferry street and Broadway, which is near her home in said Everett, at about 25 minutes of 8, the same evening. On the 10th day of January, 1892, her dead body was found in the Mystic river, a short distance below the Wellington bridge, about three miles from her home. There were no marks of violence on the body when found, nor 155. 1 For a discussion of principles, see McKelvey on Evidence (3d Ed.) §§ 1522 A portion of the opinion is omitted. was there any evidence that poison had been administered, nor did her clothing show any signs of violence. * *The physicians called in behalf of the commonwealth testified that the cause of death was drowning, and that, from the stage which digestion had reached, death occurred between two and one-half and three and one-half hours after the deceased had eaten her last meal. There was evidence that the deceased ate her supper about 5 o'clock on the evening of December 23d, and that the partly digested food found in her stomach corresponded with that which it was testified she ate at that meal. The deceased was unmarried, and at the time of her death was pregnant with a male child, and was about five months advanced in the state of pregnancy. The defendants contended and argued, without objection, that all the evidence introduced 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," * * * 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 intention. 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 ac |