Morrow v. State

• Decision Date: 20 May 1948
• Docket Number: 169.
• Citation: 59 A.2d 325,190 Md. 559
• Parties: MORROW v. STATE.
• Court: Maryland Court of Appeals

59 A.2d 325

190 Md. 559

MORROW v. STATE.

No. 169.

Court of Appeals of Maryland

May 20, 1948

Appeal from Circuit Court, Montgomery County; Charles W. Woodward Chief Judge.

William Morrow was tried on a charge of bookmaking, and from the judgment rendered, he appeals.

Reversed and new trial awarded.

Joseph B. Simpson, Jr., of Rockville, and E. Milton Altfeld, of Baltimore (Vivian V. Simpson, of Rockville, on the brief), for appellant.

J Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Walter W. Dawson, State's Atty. for Montgomery County, of Rockville, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, and HENDERSON, JJ and BAILEY, C.J., specially assigned.

HENDERSON Judge.

William Morrow was tried in the Circuit Court for Montgomery County before the court and a jury, on a charge of bookmaking on August 9, 1947. His defense was an alibi, i. e., that he was not in Maryland on that date, as testified to by witnesses for the State. The only question pressed on this appeal is the admissibility in evidence of a sales slip or receipt, said to have been obtained by the accused in Union, South Carolina, on August 9, 1947.

Morrow did not take the stand, but produced a witness, Brock, who testified that Morrow and a man named Blake stayed at his home in Union, South Carolina, August 8th and 9th, 1947, and that on the morning of August 9th, he directed Morrow to a garage in Union. Blake testified that he accompanied Morrow on a motor trip to South Carolina, leaving Maryland August 7th, and returning August 14th. He testified that Morrow had difficulty with his car, and bought a new set of spark plugs at a garage in Union on August 9th. He identified a sales slip as one obtained by Morrow in Union on that trip. The slip was then offered in evidence, but the court declined to admit it, or look at it, or to permit further examination of the witness in regard to it. This ruling is urged as reversible error.

The slip in question is a carbon copy on the printed letterhead and form of 'A. M. Adams, Esso Station, Pinkney and Academy St. Union, S. C.' Written on the form is the date, 'Aug. 9th, 1947' and the name of purchaser, 'W. E. Morrow'. It itemizes '6 qt. oil, Esso _____ 2.10' and '8 sparkplugs _____ 5.60' a total of '7.70'. Written across the face of the slip are the words 'Paid. A. M. Adams.' Adams was not produced as a witness, nor is there in the record any explanation of the failure to produce the witness other than the fact that he lived outside the State. Counsel made no proffer in connection with the offering of the slip, but apparently showed the court a letter (not in the record) from Adams.

It is clear that the receipt, being the unsworn statement of an absent third party, was hearsay. Myers v.

State, 137 Md. 496, 501, 113 A. 92. The carbon copy signed 'A. M. Adams' was a duplicate of the original, and hence primary and not secondary evidence. Goodman v. Saperstein, 115 Md. 678, 683, 81 A. 695. Totten v. Bucy, 57 Md. 446. If it was made contemporaneously with the sale, as it appeared to have been upon its face, it would be better documentary evidence of the transaction, than a subsequent posting of the items in a ledger. The appellant strongly contends that the slip was admissible as an entry made in the regular course of business (art. 35, § 68, of the Code), or as falling within a recognized exception to the hearsay rule at common law, the witness being unavailable. We think the slip was admissible for the limited purpose for which it was offered. It was offered in corroboration of Blake's testimony that the accused made a purchase in Union upon August 9th, and that he saw the slip delivered. The...