Green v. State

• Decision Date: 13 May 1908
• Citation: 110 S.W. 920
• Parties: GREEN v. STATE.
• Court: Texas Court of Criminal Appeals

110 S.W. 920

GREEN v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1908.

Appeal from Brown County Court; A. M. Brumfield, Judge.

Jerry Green was convicted of violating the local option law, and he appeals. Reversed and remanded.

Harrison & Wayman, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was convicted in the county court of Brown county on January 29, 1908, of selling intoxicating liquors in said county in violation of the local option law, and his punishment was assessed at a fine of $100 and 60 days' confinement in the county jail. He has brought the case to this court, and presents as grounds for reversal several very interesting questions.

1. The first assignment of error relied upon by appellant for reversal of the cause is that "the court erred in refusing to let defendant's counsel see a certain paper, claimed to have been a statement made by the prosecuting witness before the grand jury, which said statement was exhibited to and examined by said McGarity while a witness on the stand." The defendant's counsel stated to the court at the time that he desired to examine said paper and statement for the purpose of cross-examining said witness. The proposition asserted under this assignment of error is that, "when the memory of a prosecuting witness while on the stand is refreshed on a material point by a paper put in his hands and examined by him, the adverse party has the right to see such paper for the purpose of cross-examining the witness, and to deny this right is a reversible error." In order to pass upon this question intelligently a brief statement is necessary:

The only witness produced by the state, or, for that matter, the only witness sworn for the state or appellant, was Jim McGarity. On his direct examination he testified that on January 5, 1908, he went to the clubroom of one Jim Byrd, on East Baker street, and that appellant was in there and was waiting on the trade, and that there was a negro behind the counter helping him; that shortly after he went in the appellant gave him a drink of whisky, for which he did not pay anything, but that same was a gift; that after that he bought six or seven glasses of soda water from the appellant and from the negro porter who was assisting in the clubroom; that as well as he remembered after the drink of whisky was given him the next drink he got was a drink of soda water; that after that he does not remember from whom he got the soda water, but that he does know that he got one other from the appellant and a number from the negro; that for each of these glasses of soda water he paid 20 cents; that from all he got he knows he got pretty full, but that he could not state whether or not either of the drinks of soda water he got from the appellant, and for which he paid him, had anything intoxicating in it, but that all he knows about it is that all he got made him pretty full. On cross-examination he testified as follows: That he could not say that any particular drink that he got from the appellant had intoxicating liquor in it, except the one appellant gave him and for which he did not pay him anything; that as well as he knows each of them may or may not have had whisky in them; that his memory is not clear on this point; that as to fixing any particular drink, and saying it had whisky in it or other intoxicating liquor, he could not do it. This closed the cross-examination. After this the county attorney exhibited to the witness a paper, which he stated at the time to be the record of said prosecuting witness' evidence before the grand jury, and after this the witness testified that he could not say whether or not the first drink of soda water had intoxicating liquor in it, but that he now would state that the second glass of soda water that he got from the appellant did have intoxicating liquor in it, and that he had paid the appellant 20 cents for this glass. In connection with this matter it appears from the bill of exceptions, reserved at the time and duly approved by the court, that appellant's counsel asked that he be permitted to see the statement so exhibited to said witness, to the end that he could properly cross-examine him relative to same. The county attorney thereupon stated that the statement contained other evidence given before the grand jury of other transactions with other and different parties, and for that reason objected to appellant's counsel seeing the same, and thereupon the court stated that he would not require the county attorney to show said instrument, or any part thereof, so exhibited to said witness, to appellant's counsel, nor would the county attorney do so. It is recited in the bill as a fact that appellant's counsel did not see said instrument, or know the contents of same, while cross-examining said witness or while he was a witness on the stand in this case.

We think this action of the court was erroneous. While it has been held and is well settled that a witness may be permitted and allowed to examine records and memoranda made by him in respect to any transaction about which he is called on to testify which may or does so refresh his recollection, there would seem to be no reason why, when he has so refreshed his memory by reference to such memoranda or writing, the party adverse to him should be shut off from an examination of the memoranda so produced, denied the right to inspect same, and to ascertain, in the first place, as to whether it is such paper as does or should refresh the witness' memory, and as to whether or not the matters contained in it are in accord with the testimony given by the witness orally on the stand. In the case of State v. Bacon, 41 Vt. 526, 98 Am. Dec. 616, almost this identical question arose. It appears from the statement in that case that on the trial the prosecution introduced one Kellogg as a witness, who during his examination in chief referred to his pocket memorandum to refresh his memory. On cross-examination he refused to allow the respondent's counsel to examine it, on the ground that it contained private memorandum of his acts of a public nature as a detective, and that he could not submit it to an examination without a breach of confidence and a personal injury. The court in that case was requested to direct the witness to allow the examination, but the request was refused, to which the respondent excepted. The opinion in that case is so clear and expresses so well our views that we make this liberal excerpt:

"On the trial the witness was at liberty to refer to the memorandum, on the ground that it aided his memory in respect to the subject of inquiry involved in the prosecution and to which his testimony related. This is allowed to enable the witness to testify with more precision and accuracy than he otherwise could, and proceeds upon the ground that the memory is often at fault and imperfect. An entry or memorandum, therefore, made by the witness himself, at or near the time of the transaction in question, and before it has in any degree faded from his memory, which is full and complete, so as naturally to suggest and aid the mind in recalling what really transpired, is a strong ground of reliance and belief. It would therefore seem that it is a legitimate subject of inquiry and examination, with reference to a witness referring to entries on the stand for the purpose of refreshing his recollection, whether the memorandum thus used and referred to really does assist his memory or not. That must depend in some measure upon its character, and that can be ascertained only by an inspection and cross-examination in respect to it, as when and by whom made, its appearance, genuineness, fullness, and faithfulness. Text writers treating the subject seem to entertain this view: `If the memory of the witness is refreshed by a paper put into his hands, the adverse party may cross-examine the witness upon that paper.' 1 Greenl. Ev. § 476. `It is always,' says Phillips (volume 1, p. 289), `and very reasonable, when a witness speaks from memoranda, that the counsel should have an opportunity of looking at them when he is cross-examining the witness.' And Starkie (volume 1, p. 179) asserts the same doctrine. He remarks: `The witness may be cross-examined from it.' See, also, part 1, Cowen & Hill's Notes (2d Ed.) 757; Rex v. Ramsden, 2 Car. & P. 603, 12 Eng. Com. L. 758. The view as presented by these authorities is alone consistent with the party's right to cross-examine the witness upon whose credibility the question in issue somewhat depends, and which, it is said, constitutes a `strong test, both of the ability and willingness of the witness to declare the truth.' In no other way can his accuracy and recollection be ascertained and tested, which in all cases are proper matters of inquiry, with a view to weighing his evidence, and the range of inquiry is open to this extent; and a witness cannot deprive a party of this right, or shield himself from the obligation of disclosing the whole truth to this end, or refuse the production and examination of a memorandum which is in court, and upon which he relies and refers, for the reason disclosed by this case—certainly not, unless it appears to the court that he had a reasonable ground of belief that he would subject himself to personal injury in consequence of producing and allowing an examination of it. This decision of the recorder was therefore incorrect."

In the notes to this decision Mr. Freeman, the learned compiler of that justly celebrated series, has this note containing a statement of the decisions in respect to this matter: "In cases of this kind, where the witness has no independent recollection of the facts, and depends upon his knowledge that the memorandum used by him is correct, it must be produced. The writing or memorandum must be delivered to the opposite party for his inspection, that he may cross-examine the witness in regard to it; and it may be shown...