#### STATE v. WALTER M. DRAUGHON.

(Filed 27 October, 1909.)

1. Deeds and Conveyances — Forgery — Publication — Intent to Defraud — Declarations—Natural Evidence — Hearsay.

When defendant is tried for forging a deed from bis father, since deceased, to himself, and uttering and publishing it with an intent to defraud the other children and heirs at law, defendant may show by a State’s witness that deceased had acknowledged to this witness the execution of the deed, with deceased’s *668declaration at the time that defendant had done more for him than any other of his children had done, etc.; (1) it tended to show the disposition of the father towards the son at the time the deed was alleged to have been executed by the father; (2) it was natural evidence and the only obtainable evidence of the intent of the grantor, and an exception to the rule of hearsay evidence.

2. Same.

While such declarations are not direct evidence that the father executed the deed, which the son is being tried for forging, it is a material circumstance tending to show it and excluding such evidence is reversible error. The questions raised in this case by defendant upon the plea of “former acquittal” are not passed upon on this appeal as they may not again arise.

Appeal by defendant from W. B. Allen, J., February Term, 1909, of SaMpsoN.

The facts are stated in the opinion.

Attorney-General and G. E. Butler for the State.

Eowler & Grumpier, F. B. Cooper and J. D: Kerr for defendant.

Walker, J.

The defendant was indicted in the court below in two counts. In one of the counts he is charged with the 'forgery of a deed, purporting to have been made and executed by G. B. Draughon to the defendant, dated 2 November, 1902, and conveying to him in fee certain land, containing twenty acres and therein described, for the. nominal sum of one dollar. In the other count he is charged with uttering and publishing the forged instrument. The bill was drawn under sections 3424 and 3427 of-the Revisal. In the first count it is alleged that the forgery was committed with intent to defraud G. B.. Draughon, the alleged maker of the deed, and in the second count it is alleged that the defendant, by the forgery, intended to defraud John M. Mathis, Donnie Mathis and others, the said Donnie Mathis and others being the heirs of G. B. Draughon, who was dead when the -bill of indictment was returned by the grand jury. It appears that an indictment had been found at, a.previous term of the court for the same forgery, simply, with intent to defraud J. M. Mathis and his wife, Donnie Mathis, the said Donnie Mathis being the child of G. B. Draughon, who was then living. The defendant was acquitted at, the trial upon that, indictment, under the charge of the court that there could be no such a thing in the law as an intent to defraud the heir of a living person who had but a bare, possibility of inheritance from her father, applying the maxim, Nemo est haeres viventis. At the trial *669upon tbe second indictment, tbe defendant pleaded former acquittal, and relied, in support of bis plea, on tbe verdict and judgment in tbe first trial. Tbe court held, as matter of law, upon tbe admitted facts, tbat there bad been no former acquittal of tbe defendant upon tbe charge contained in tbe second bill of indictment, and instructed tbe jury to disregard tbe plea and to consider tbe case and the evidence therein only upon tbe defendant’s plea' of not guilty. Tbe jury returned a verdict of guilty, and judgment tbat tbe defendant be confined in tbe State penitentiary for tbe term of three years was rendered thereon. Tbe defendant, having duly excepted to divers rulings of tbe court, now assigned as errors, appealed to this Court. As to tbe plea of former acquittal, it is not absolutely necessary for us to pass upon it, as we think there was error in tbe exclusion of testimony offered by tbe defendant, but yre will refer to it. later on. ,

The State introduced as a witness Sherman Boyall, who testified to facts very prejudicial to tbe defendant, and, among others, that G. B. Draughon bad virtually denied, in a conversation with tbe defendant, which took place in tbe presence and bearing of tbe witness, tbat hfe bad executed tbe deed, and tbat on one occasion, when tbe defendant was not present, as it impliedly appears, be requested tbe witness to see the defendant about a rumor to tbe effect tbat tbe latter bad a deed from him, G. B. Draughon, and to ask tbe defendant for permission to see tbe deed, which request tbe defendant refused, but be did show tbe back of tbe deed, on which was written “G. B. Draughon to ~W. M. Draughon.” Tbe defendant proposed to prove by tbe same witness tbat G. B. Draughon admitted to him tbat he bad executed tbe deed in question to tbe defendant for tbe twenty acres of land, and gave as bis reason tbat be intended to- do more for the defendant than for any other child, as tbe defendant bad done more for him and bad been better to him than any of bis children. This' evidence, on objection by tbe State, was excluded, and tbe defendant excepted. Tbe Attorney-General, with bis usual frankness and fairness, conceded in tbe argument' before us that tbe court committed an error in rejecting tbe evidence. We take an extract from his very able and Avell-prepared brief: “It seems to me tbat tbe exclusion of this testimony was error. Tbe State bad proved by tbe witness certain declarations of G. B. Draughon prejudicial to tbe defendant. It would seem tbat, upon cross-examination, tbe defendant should have been allowed to show tbat G. B. Draughon bad declared tbat be bad given tbe defendant tbe land, and why. It tended to support tbe defendant’s contention tbat tbe deed was genuine.” Our opinion *670is that the testimony was competent and should have been admitted by the court and considered by the jury, for the reason that it tended to show the disposition of the father towards his son at the time the deed was executed — in other words, his state of mind — and that he entertained a feeling of appreciation and gratitude toward his son, because of what he had done for him, The State attempted to show, by the examination of this very witness, that the deceased, G. B.. Draughon, was unfriendly toward his son, the defendant, and, by every principle of fairness, justice and law relating to such evidence, the defendant should have been permitted to show by the same witness that his father had expressed himself to the contrary and had really regarded the defendant as his favorite child. This kind of evidence is admitted, for the reason that it is what is called natural evidence, and the fact intended to be proved cannot easily be established in any other way. Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are what is termed by some of the text writers original evidence. Whether that is strictly accurate or not, we will not stop to consider. Greenleaf seems to have thought that it was an exception to the “hearsay rule.” If they are the natural language of the feelings, whether of body or mind, they furnish satisfactory evidence, and often the only proof of their existence, and whether such expressions were real or feigned is for the jury to determine. In the words of Lord Justice Mellish, “Wherever it is material to prove the state of a person’s mind, or what was passing in it, and what were his intentions, there you may prove what he said, because that is the only means by which you can find out what his intentions were.” Sugden v. St. Leonards, L. R., 1 P. D., 154; 1 Greenleaf on Ev. (16th Ed.), sec. 162a. Greenleaf, in that section, says: “But where a distinct assertion, in the form of words, predicating a mental state, is offered, as ‘I have a pain in my side,’ or ‘I have the intention of going out of town,’ or ‘I do this for such-and-such a reason,’ this language is no less an assertion of the existence of a fact than is an assertion of any sort of fact. In the neat phrase of Lord Justice Bowen, in Edgington v. Fitzmaurice, L. R., 29 Ch. Div., 459, ‘The state of a man’s mind is as much a fact as the state of his digestion.’ And, therefore, such assertions, being taken on the credit of the declarant as testimonial evidence of the fact asserted, are met by the hearsay rule (on the principle explained, ante, section 99a). To admit them, then, is to make an exception to the hearsay rule.” And, for *671tbe reason given, tbe evidence does not come witbin tbe rule, tbougb in its nature partaking of hearsay.

We do not mean to decide tbat tbe declaration of tbe deceased father is direct evidence tbat be bad not conveyed tbe land to bis son, tbe defendant, but ibis a circumstance, coming in a competent way and from a reliable source, which tends (as tbe Attorney-General so well said) to show that be bad made tbe conveyance which is now alleged by tbe State to be a forgery.

We conclude tbat tbe evidence which was excluded should have been admitted, under tbe facts and circumstances of tbe case, as they now appear to us.

We do not decide or even consider tbe question whether tbe declaration of G. B. Draughon, while in actual possession of tbe land, in disparagement of bis title, and therefore against bis interest, be being now deceased, is competent as evidence in this case, it being a criminal action; but we leave it open for future adjudication.

Tbe decision of tbe remaining question, as to tbe plea of former acquittal, is pretermitted by us, for it may be 'that tbe facts as they appear at tbe next trial may be, so different from those now stated in this record tbat tbe interesting and doubtful question of law as to the' validity of tbe plea of former acquittal may not be presented. It would not be deferential to tbe learned judge who may. preside at tbe next trial to anticipate any error in bis decision upon questions which may then be raised. As tbe double pleas of former acquittal and not guilty are to be tried together, by consent of tbe parties, it may turn out tbat tbe defendant will be acquitted upon tbe latter plea — tbat is, the jury may find him not guilty of tbe crime charged in tbe two bills of indictment,. treated as one bill with several counts, in which event tbe plea of former acquittal, and tbe evidence and arguments to sustain it, would be eliminated from tbe case. There are other grave and controlling reasons which induce us to withhold any expression of opinion upon tbe question thus raised by tbe defendant’s first plea. Tbe gravity of this question is shown by tbe fact that tbe Attorney-General was in some doubt, disclosed by bis brief, as to whether or not the plea bad been established, and tbe defendant’s counsel was confident tbat it had been. At present we consider it as an open question of law and fact, to be hereafter determined according to the law and tbe evidence. Perhaps the solicitor may send a new bill, and we therefore cannot now determine what the allegations of tbe indictment or, as we have said, what tbe evidence may hereafter be; but let it be understood that we do not now decide, as it is *672not necessary to do so, that tbe plea of former acquittal was, in law, sustained, upon tbe bills and evidence as tbey now stand, or that tbe learned judge was in error in so charging tbe jury; nor must it be understood that our opinion in this case in any degree prejudices tbe right of the defendant to rely, at tbe next trial upon bis plea of former acquittal. We merely award a new trial, for tbe'reason already given, leaving undecided tbe other questions in tbe case, which are not now necessarily presented.

New trial.