Owens v. State

• Decision Date: 21 June 1887
• Citation: 10 A. 210,67 Md. 307
• Parties: OWENS AND OTHERS v. STATE. [1]
• Court: Maryland Court of Appeals

10 A. 210

67 Md. 307

OWENS AND OTHERS v. STATE. ^[1]

Court of Appeals of Maryland

June 21, 1887

Appeal from criminal court of Baltimore.

J P. Poe, for appellant.

E H. Gans and Atty. Gen. Roberts, for appellee.

ALVEY C.J.

The appellants were indicted, tried, and convicted for the offense of having conspired and combined together to make false and fraudulent returns of votes cast at a municipal election held in the city of Baltimore on the twenty-seventh of October, 1886. The three appellants first named in the indictment were judges at said election, and the last two named were clerks. The indictment charges that they "willfully, fraudulently, and unlawfully did conspire combine, confederate, and agree together to fraudulently count and return large numbers of illegal votes cast at said election, in said Seventh precinct of the First ward, and to cause to be falsely entered on the books of the polls for said precinct of said ward at said election large numbers of names of persons who did not vote at said election," etc.; and that they did, in pursuance of such conspiracy fraudulently count and return a large number of illegal votes, "and did fraudulently cause to be falsely entered on the books of said election, etc., the names of a large number of persons who did not vote at said election, to-wit, [naming particularly 21 persons;] all of which persons did not vote at said election, as the appellants well knew."

It is apparent, from the averments of the indictment, that one of the leading questions in the case was whether the persons named in the indictment, as the persons whose names had been falsely entered in the poll-books of voters as having voted at the election, did in fact vote, as certified by the appellants in the return of said election. The most simple and direct means, of course, of ascertaining this fact, would have been by the testimony of the persons themselves whose names were thus entered and returned, if they were in existence, and within the reach of the process of the court. But their testimony was not the only means of establishing the fact the one way or the other.

In the course of the trial the appellants took three bills of exception to the admissibility of evidence adduced by the state for the purpose of proving that the persons named in the indictment as having been falsely returned as voting did not in fact vote at the election. It appears, by the first bill of exception, that the state called a witness named Crawford, who testified that he was a challenger at the precinct polls where the appellants officiated as judges and clerks, and that he had a duly-certified copy of the registration poll-book for that precinct, in which he checked off the names of all persons who voted; that he was at the polls the whole day, except for about an hour,-- half an hour to get his breakfast, and half an hour to get his dinner; and that during the time of his absence he left the book in the hands of Foxwell and Hamilton, who acted in his place. He was then requested by the state to produce the book so used by him at the polls; and the book, purporting to be a duly-certified copy of the registration poll-book of the precinct, being produced by the witness, the state offered the same in evidence, for the purpose of showing that the witness Crawford, and 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. To the use of the book in evidence the appellants objected; but the court overruled the objection, and allowed the book to be used in evidence under the offer by the state, and the appellants excepted.

By the second bill of exception it appears that the state proceeded with the examination of the witness Crawford, and proved by him that he checked off all but one of those who voted at the polls while he was there. He was then asked if he could identify the checks made by him in the book; to which he replied that he could identify nearly all of them. The appellants thereupon again objected to the admission of the book in evidence, in view of the fact that the witness could not identify all of his checks made in the book, and asked that the book be excluded. This objection was also overruled, and the appellants excepted.

In the third bill of exception it is shown that the state further proceeded with the examination of Crawford as to his use of the book, and the care with which he checked off the names of those voting; and, at the close of his examination, the state called Charles Foxwell, who testified "that when Crawford left the polls each time he gave said book into the custody of himself [the witness] and Hamilton, and that they returned it to Crawford each time when he came back; that during Crawford's absence Hamilton held the book; and that he [Foxwell] was present with Hamilton all the time, and saw him check off the name of every man who voted." It is also shown that a summons was issued for Hamilton, but it was returned non est.

After the state had closed its evidence, the appellants asked the court to exclude from the consideration of the jury the challenger's book produced by Crawford, because all three men who held it at the polls had not been produced, Hamilton not testifying, and therefore the original proffer of the state had not been fulfilled. But this request was refused, and the appellants excepted.

We have thus fully stated the facts, as set out in the bills of exception, in order to show exactly how the question arose, and what was the scope and extent of the rulings of the court upon the objections taken by the appellants. The whole matter seems to be reducible to a single question, and that is whether, under the facts as set forth in the several exceptions, there was error in allowing the introduction and use of the challenger's book as evidence, in connection with and in support of the testimony of Crawford and Foxwell. As independent evidence, clearly, the book kept and produced by Crawford would not be admissible; but whether it was not properly admitted, with the checks made therein, in connection with the testimony of the witnesses mentioned, is a different question.

There is no point made upon the fact that the registration poll-book, used and produced by Crawford, was a copy; nor could there be any such objection taken to it. It was an official copy, duly certified under the law; but it derived its importance and effect as evidence from the fact of its use, and the checks or marks that were made therein at the polls during the progress of the election. As to such checks or marks, therefore, they must be regarded as original entries or memoranda, made contemporaneously with the transaction to which they relate. This, as we have seen from the facts stated, is not the case of the use of a book or entry for the mere purpose of refreshing the faded recollection of a witness; but it is the case of a witness who does not profess to be able to repeat from memory all the details of the transaction in question, but testifies that he made correct entries at the time of the transaction as it progressed, and that he knows that such entries were made in accordance with the truth, and that they faithfully represent the whole transaction as it occurred; and the question is whether, in reason or upon any well-settled doctrine of law, such entries ought to be excluded as evidence, when offered in connection with the testimony of the witness? We certainly know of no decision in this state that would require the exclusion of such evidence, nor are we aware of any established principle that requires it. On the contrary, we think...