| Ala. | Dec 15, 1884
While the defendant was undergoing examination as a witness in his own behalf, the court refused to allow him, for the purpose of refreshing his recollection, to refer to a copy of original entries of payments on the note sued on, made by him in a book at the times the payments were severally made, which he stated was an exact copy.
Although a witness must testify, to facts within his own knowledge, he may, while under examination, refer, for the purpose of assisting or refreshing his memory, to a memorandum made at or near the time of the occurrence of the facts, whether made by him, or by another, if he knows it to be correct ; but, after having referred to the memorandum, he must be able to testify from independent recollection. The memorandum is not admissible in evidence, nor are its contents disclosed to the jury, unless called for by the adversary party. Acklen v. Hickman, 63 Ala. 494" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/acklens-v-hickman-6510475?utm_source=webapp" opinion_id="6510475">63 Ala. 494. It need not be shown that it is necessary for the witness to assist his memory -by the memorandum. “'The witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollec
The distinction between the purpose to refresh the memory of the witness, and the purpose to introduce in evidence the memorandum itself, must be kept in view. When the object is to have the memorandum or entries admitted as evidence, the original must be produced, or its absence satisfactorily accounted for. But, where the purpose is merely to assist the memory of the witness, that he may thereupon testify from independent recollection, he may refer to a paper, which he knows to be a correct copy of the original. As remarked by Lord JCHenborough : “ It is not the memorandum that is the evidence, but the recollection of the witness.” — Henry v. Lee, 2 Chitty, 124.
In 1 Green, on Ev. § 436, the author observes: “It does not seem necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, h'e can speak to the facts from his own recollection.” And in Doe v. Perkins, 3 T. R. 753, the case of Tanner v. Taylor is referred' to, where a witness refreshed his memory, by looking at an account, which he stated was a copy of his day-book, that he had left at home. Baron Legge said: “If he would swear positively from recollection, and the paper was only to refresh his memory, he might make use of it.”
In some of the cases it has been held, that a copy should not ■ be appealed to, even to refresh the memory, when the original can be produced. Such practice would frequently put parties to unnecessary trouble, inconvenience, and expense, and sometimes require what is impracticable. The tendency is rather to relax the rule; and the weight of authority is in favor of the doctrine, that a witness may, to refresh his recollection, use a copy of eptries which he knows to be correct, if, on inspecting it, he can then testify to the facts. — Bullock v. Hunter, 44 Md. 416" court="Md." date_filed="1876-03-10" href="https://app.midpage.ai/document/bullock-v-hunter-7894362?utm_source=webapp" opinion_id="7894362">44 Md. 416; Harrison v. Middleton, 11 Gratt. 527" court="Va." date_filed="1854-07-15" href="https://app.midpage.ai/document/harrison-v-middleton-8481497?utm_source=webapp" opinion_id="8481497">11 Gratt. 527; Marcly v. Shults, 29 N.Y. 346" court="NY" date_filed="1864-03-05" href="https://app.midpage.ai/document/marcly-v--shults-3612866?utm_source=webapp" opinion_id="3612866">29 N. Y. 346. ' The rule is subject to the limitation, that the witness must be able to testify that the original entry was, when made, a true statement of the facts, and the copy must be verified.
Where a copy is used to assist the memory, the opposite party may call for the original, to test the sufficiency and accuracy of the copy. If the original, on such call, is not produced, and satisfactory reasons are not given for the failure to produce it, and for using a copy, this circumstance may be considered by the jury in weighing his evidence. — Chic. & Al. R. R. Co. v. Adler, 56 Ill. 344" court="Ill." date_filed="1870-09-15" href="https://app.midpage.ai/document/chicago--alton-railroad-v-adler-6954584?utm_source=webapp" opinion_id="6954584">56 Ill. 344; Davis v. Jones, 68 Me. 393" court="Me." date_filed="1878-08-04" href="https://app.midpage.ai/document/davie-v-jones-4933365?utm_source=webapp" opinion_id="4933365">68 Me. 393.
The defendant should have been permitted to refresh his memory by the use of a copy of the original entries. There is
■ Reversed and remanded.