State v. Magers

• Decision Date: 13 November 1899
• Citation: 36 Or. 38,58 P. 892
• Parties: STATE v. MAGERS.
• Court: Oregon Supreme Court

58 P. 892

36 Or. 38

STATE v. MAGERS.

Supreme Court of Oregon

November 13, 1899

Appeal from circuit court, Polk county; George H. Burnett, Judge.

W.G Magers was convicted of murder, and he appeals. Affirmed.

W.H. Holmes, for appellant.

D.R.N Blackburn, Atty. Gen., and John H. Hall, for the State.

WOLVERTON, C.J.

The defendant was tried and convicted of the crime of murder in the first degree, and brings this appeal from the judgment which followed, relying upon several grounds of error for the reversal thereof, which we will discuss in their order.

The first is touching the action of the court in refusing to withdraw from the consideration of the jury the testimony of one D. McLauchlan, a witness for the state, who testified among other things, in effect, that he was the chief of police of the city of Portland; that he remembered the circumstance of the defendant, William G. Magers, being brought into his office on the 23d of September, 1898; that he had on his person $58.60,--between $58 and $59; that he had a mackintosh, a pair of gloves, and a handkerchief; that the mackintosh was wet, and seemed to have been in that condition for some time; that the gloves were wet also, and appeared to have been put in the pocket wet. He detailed a statement made to him by Magers in the presence of detectives John Cordano and H.P. Ford and a stenographer named Fred Moos, who took it down in shorthand at McLauchlan's instance. On cross-examination he answered interrogatories as follows: "Q. Have you related the entire conversation which you had, giving the substance of the questions and answers,--all questions and answers? A. Well, I don't know. Might have forgotten some of them. Q. The stenographer was supposed to write down everything you said, as well as all that Mr. Cordano, Ford, and the defendant said? A. Well some of the defendant's answers were pretty low. Don't suppose he got them all. Q. Did you ever see the notes of the stenographer? A. Yes, sir. Q. Could you read them? A. Well, no; could not read them. After they were extended, I could read them. Q. Is it not a fact that you have refreshed your memory from those notes? A. Yes, I did. Q. You are testifying in part from memory and partly from refreshing your memory from the typewritten notes of the stenographer? A. Yes, I presume I am. Don't know just how much. Q. You went to them for the purpose of refreshing your memory? A. Yes, sir. Q. Have you those notes with you? A. No; I wasn't told to bring them. Q. You have the shorthand notes? A. No, sir. I never had them. Q. Where is the stenographer? A. In Alaska now. Q. Without the notes, or the typewritten copy of the notes, rather, which you had in your possession, which you read, you would not undertake to testify to all the facts as clearly as you have? A. I might not have the story as well connected, but I think I would remember most of the facts. Q. You haven't been called upon to tax your mind for the recollection of the facts to that extent that you might have done or would have done had you not had the notes? A. I presume the notes helped me some. Q. You haven't depended upon your memory as to what occurred to that extent had you not been supplied with notes? A. Well, I don't know if I would say that. I think the notes were of some assistance to me in refreshing my memory. Q. Is it not a fact that you would have paid more attention to it, and taxed your mind or memory with the recollection of what occurred more, than you have done on account of knowing it had been written down? A. I might have done so; yes, sir." At the close of the examination of the witness, counsel for defendant moved the court to direct the jury not to consider his evidence, upon the grounds that it appeared the witness' recollection was supported in part by the notes taken by the stenographer; that he had refreshed his memory by reference thereto before coming on the stand to testify; and that he had neither produced the original notes nor the extended copy thereof in court, so that defendant could cross-examine him touching them. The court denied the motion, and error is assigned because of its ruling in that regard. Section 836 , Hill's Ann.Laws Or., provides that: "A witness is allowed to refresh his memory respecting a fact by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in either case the writing must be produced, and may be inspected by the adverse party, who may, if he choose, cross-examine the witness concerning it, and may read it to the jury. So, also, a witness may testify from such a writing, though he retain no recollection of the particular fact; but such evidence shall be received with caution." It is contended that under this statute McLauchlan should have been required to produce either the shorthand notes or the extended copy in court, so that the defendant could have had the benefit of cross-examination touching them; otherwise, that his testimony should have been taken from the consideration of the jury. It will be observed that while upon the stand he was able to state from his own recollection what occurred, and to detail the statement of the defendant without reference to the stenographer's notes. In such a case the testimony of the witness is the substantive evidence, and not the stenographic notes, which could not properly go to the jury in that capacity. It was not a question of the relevancy or competency of the notes themselves as evidence, but a question, under the statute, whether the defendant, within the meaning of the section referred to, was entitled to have the notes produced in court, so that he could inspect them, and thereby be enabled to cross-examine the witness concerning them.

Under the common-law rule there are three classes of cases in which a witness is allowed to refresh his memory by means of written memoranda: (1) Where the writing serves only to revive or assist the memory, and to bring to mind a recollection of the facts; (2) where the witness may recall having seen the writing before, and, though he has no independent recollection of the facts mentioned in it, yet remembers that at the time he saw it he knew the statements therein contained to be correct; and (3) where it brings neither any recollection of the facts mentioned in it, nor any recollection of the writing itself, but which enables him (the witness) to swear to a particular fact from the conviction of his mind on seeing a writing which he knows to be genuine. 2 Phil.Ev. p. 916. In elucidating the case before us, it is necessary to keep in view the first and second classes only, and we may, therefore, eliminate further reference to the third, except as it may be convenient incidentally. Mr. Phillips says: "In the first class of cases, where the memory of a witness has been revived by the previous inspection of a writing, it is not necessary, as a condition of the admission of his oral testimony, that the writing should be produced in court. The case seems to differ only in degree from many others in which memory is revived by reference in the mind of a witness to any circumstance to which his attention may have been drawn with a peculiar degree of force. The absence, however, of the writing might afford matter of observation. If it is produced, the counsel for the other party has a right to see it, and cross-examine from it. Where writing has not the effect of reviving the witness' memory (as in the two last classes of cases above mentioned), but yet enables him to speak positively to a fact, so that his testimony depends upon his inference from the writing, the writing must be produced, and his testimony is admissible as proof of the fact." Mr Greenleaf states the rule, both as to when writings may be used to assist the memory and when they shall or shall not be produced in court, as follows: "(1) Where the writing is used only for the purpose of assisting the memory of the witness. In this case it does not seem necessary that the writing should be produced in court, though its absence may afford matter of observation to the jury; for the witness at last testifies from his own recollection. (2) Where the witness recollects having seen the writing before, and, though he has now no independent recollection of the facts mentioned in it, yet he remembers that at the time he saw it he knew the contents to be correct. In this case the writing itself must be produced in court, in order that the other party may cross-examine; not that such writing is thereby made evidence of itself, but that the other party may have the benefit of the witness' refreshing his memory by every part." Greenl.Ev. § 437. Rowell, J., in Davis v. Field, 56 Vt. 426, states the rule, confining it to the two first classes. He says: "There seems to be two classes of cases on this subject: (1) Where the witness, by referring to the memorandum, has his memory quickened and refreshed thereby, so that he is enabled to swear to an actual recollection. (2) Where the witness, after referring to the memorandum, undertakes to swear to the fact, yet not because he remembers it, but because of his confidence in the correctness of the memorandum. In both cases the oath of the witness is the primary, substantive evidence relied upon; in the former, the oath being grounded on actual recollection, and in the latter on the faith reposed in the verity of the memorandum, in which case, in order to judge of the credibility of the oath and the reliance to be placed upon the testimony of the witness, the memorandum must be original and contemporary, and produced in court. The testimony objected...