Owens v. State

• Decision Date: 21 June 1887
• Citation: 10 A. 302,67 Md. 307
• Parties: OWENS AND OTHERS v. STATE.
• Court: Maryland Court of Appeals

10 A. 302

67 Md. 307

OWENS AND OTHERS v. STATE.

Court of Appeals of Maryland

June 21, 1887

For majority opinion, see 10 A. 210.

BRYAN J., (dissenting.)

The bills of exception make a very meager statement of the facts of this case. We have not, however, any legitimate means of knowing what occurred at the trial in the criminal court beyond what is stated in the record. We are strictly confined to that, and are obliged to found our opinion exclusively upon what is therein stated. John Crawford, a witness for the state, testified that he was at the Seventh precinct of the First ward of the city of Baltimore at the last municipal election; that he was there during the whole time the polls were open, with the exception of an hour; that during that hour of absence he left a book with Foxwell and Hamilton. The testimony in reference to this book is thus stated in the first bill of exceptions: " Question. What book did you have there? You say you had a book there? Answer. Yes, sir. Q. Get it, and let us see what it is. The witness here produced a book purporting to be a duly-certified copy of registration poll-book of the Seventh precinct of the First ward, to the use of which in evidence the traverser objected. The state offered the book for the purpose of showing that the witnesses Crawford Foxwell, and Hamilton had checked off on it the name of every person who had voted at that election, and offered to follow up the proof by evidence of Foxwell and Hamilton as to what marks had been put in the book during the hour when it was not in Crawford's possession. The court overruled the objection of the traversers, and permitted said book to be used in evidence."

The traversers were indicted for a conspiracy fraudulently to count and to return large numbers of illegal votes cast at the municipal election, and to cause to be falsely entered on the poll-books large numbers of persons who did not vote at the election. And the overt act of the conspiracy was charged to be the false entry on the poll-books of the names of 21 persons who did not vote. The names are stated in the indictment. As a matter of course, unless the state could succeed in showing in point of fact that some one of these 21 persons did not vote, the indictment could not be sustained. The book was offered for the purpose of showing that they did not vote, and that the entry of their names on the poll-books was fraudulent and false. If the names of all persons who voted were checked off on the book which was offered in evidence, it followed, as a necessary inference, that those persons whose names were not checked failed to vote. These checks were made without the knowledge or acquiescence of the accused, by persons who kept the book in their own possession. They were in fact private, unsworn declarations that certain persons voted, and that certain others did not vote. The law has prescribed with great accuracy and precision the circumstances under which unsworn memoranda may be admitted in evidence.

In the second reign of Queen Anne the case of Price v. Earl of Torrington established the rule of evidence which has always been recognized and maintained by the courts of this state. It made an exception to the general rule which excludes hearsay testimony.

In Romer v. Jaecksch, 39 Md. 589 this court, speaking of the doctrine in question, quotes with approval the following passage from Taylor on Evidence "From the cases cited above, it may be collected that, in order to bring a declaration within the present exception, proof must be given that it was made contemporaneously with the fact which it narrates, and in the usual routine of business, by a person whose duty it was to make the whole of it, who was himself personally acquainted with the fact, who had no interest in stating an untruth, and who is since dead." There is another rule of evidence which permits a witness, for the purpose of refreshing his memory, to use writings which have been made by himself. The distinction is very manifest between the cases coming under these different rules. In the one case the writings go to the jury as evidence of the matters stated in them, and the oath of the witness is necessary merely to prove that they are original, and that they were made in the usual course of business. In the other case the oath of the witness must establish the truth of the matter in question according to his present knowledge and belief, and the writings are not instruments of evidence to any extent whatsoever. The distinction between these two classes of cases is clearly marked in the text-books and in decided cases.

In the notes to Price v. Earl of Torrington, 1 Smith's Lead. Cas. *344, it is said: "The cases involving this principle are to be distinguished from those which turn upon a witness' being allowed to refresh his memory by referring to memoranda or entries." It is held that the documents used to refresh the recollection of a witness must be produced at the trial, so that the opposite counsel should have an opportunity of inspecting them, so that he may have the benefit of refreshing the memory of the witness by every part of them; but these documents are not evidence, and do not become so by reason of the fact that the adverse counsel has looked at them, and cross-examined the witness in respect to them. 1 Tayl. Ev. § 1270; 1 Greenl. Ev. § 437.

In Kensington v. Inglis, 8 East, 273, it appeared that licenses to trade with the public enemy had been granted by a colonial governor, and entries of the licenses had been made by the governor's secretary in a memorandum book; and the question was whether it was necessary to produce the book in evidence for the purpose of proving the granting of a license. Lord ELLENBOROUGH said: "As to the non-production of the secretary's memorandum book, in which he had made entries of licenses for his own and the governor's information, that book, if it had existed, and been in the secretary's hands ready to be produced, could not have been produced at the trial in proof of the fact of granting any particular license; the only use which it could have been allowed to answer being by way of memorandum to refresh the memory of the secretary who made the entries when he should be called a witness."

In Field v. Thompson, 119 Mass. 151, the question being on the admission of certain entries in the plaintiff's account-book, the court said: "The entries might doubtless be shown to the witness to aid his recollection; and, if they did not appear to have been admitted for any other purpose, the exception to their admission could not be sustained." Dugan v. Mahoney, 11 Allen, 572; Cobb v. Boston, 109 Mass. 438. But the final ruling of the learned judge, as stated in the bill of exceptions allowed by him, went beyond this. It was "that the entry in the book might be regarded as a memorandum made by the plaintiff at the time, and, as such, entitled to some weight in confirmation of the recollection and evidence of the plaintiff" upon the question at issue between the parties. This ruling was inconsistent with the first one, and allowed to these entries a weight as evidence in corroboration of the plaintiff's testimony to which they were not legally entitled. Townsend Bank v. Whitney, 3 Allen, 454; Maine v. Harper, 4 Allen, 115; Bentley v. Ward, 116 Mass. 333; Prew v. Donahue, 118 Mass. 438.

In Cobb v. Boston, 109 Mass. 438, the court said: "We do not understand that the memorandum was offered as being of itself evidence, but that the witness testified to his present recollection of the truth and correctness of a valuation, which he made six months previous to the taking [of land for the use of the city of Boston.] The fact that he made a record at the time ought not to prevent him from testifying to the matters which he had so recorded. if at the time of testifying he knew them to be true. Under such circumstances, the commissioners might, in their discretion, permit him to read from his memorandum." In Com. v. Ford, 130 Mass. 64, the court, quoting from Lord ELLENBOROUGH, said: "It is not the memorandum that is evidence, but the recollection of the witness."

These rules of the common law prevail in Maryland. Let us examine some of the decisions of this court.

In Owings v. Low, 5 Gill & J. 134 cited in the opinion of the majority of the court, a witness testified that he and one Dukehart were clerks in the employment of the plaintiff, who carried on the hardware business in the city of Baltimore; that during that time various articles of hardware were sold and delivered to the defendant, that sometimes the things were delivered by witness to defendant, or his order, sometimes by plaintiffs or one of them, and sometimes by Dukehart; that the charges for the same on the day-book of plaintiffs were at times made by witness, or by one or other of said persons; that all the things charged by himself he knew were delivered as charged, because he never made such charges without delivery; and that it was the constant usage of the plaintiffs and Dukehart never to make entries in the book without a like delivery. The defendant objected to the admissibility of all the evidence, except the evidence of the entries actually made by the witness, and the goods, amounts, and particulars comprised in such entries; and the Baltimore county court sustained the objection. The court of appeals affirmed this ruling. The witness swore that he knew that the things charged by himself were delivered as charged. His evidence as to the matters which he knew was not objected to, and no question about this part of it was decided by the county court or by the court of appeals. The point decided by both courts was that the evidence was not competent to show the entries made by the plaintiffs...