Commonwealth v. Berney

28 Pa. Super. 61 | Pa. Super. Ct. | 1905

Opinion by

Henderson, J.,

For the purpose of showing that the larceny involved in the charge against the defendants was committed within the county, the commonwealth introduced the record of car inspection kept by the Pennsylvania Railroad Company at Altoona. This record was made up by a clerk or clerks of the company from reports sent in by car inspectors employed in the freight yard at that city. The reports were made on slips or memorandum papers and sent by messengers to the office, and a tabulation or summary was made up from these slips. The inspectors were instructed to report any broken seals found on cars inspected by them, and the record made up in the office showed what cars were reported by the inspectors as having had broken seals thereon at the time of the inspection. It appeared from other evidence that the property which was the subject of larceny had been loaded in two freight cars in Jersey City, and that the cars were sealed at that place. It was deemed important to the case of the commonwealth to show that the seals were intact on arrival of the cars in Altoona, and the absence of any report that they were not in that condition was held to be admissible to establish the fact. It appeared on an examination of the custodian of the book, that he had no knowledge of the facts therein exhibited, but that it was made up from, the written information transmitted by the car inspectors ; and this is the serious objection to the evidence.

Generally speaking the contemporaneous entries made by third persons in their own books in the ordinary course of business are admissible as original evidence where the subject of the entry is within the peculiar knowledge of the person making it, and where no motive to pervert the truth is apparent. It is essential to the competency of such evidence, however, that the person making the entry have personal knowledge of the subject, otherwise the evidence is hearsay and inadmissible.

Where the entry is made by one in discharge of official duty, it must be one which it was the person’s duty to make, and which applies to the transaction as part thereof, or which was its useful and proper concomitant. Where the party making the entry is living and competent to testify, it is necessary to produce him. Where he is dead, or, when called as a witness, has no recollection of the facts, but testifies that it was his practice to make all his entries truthfully at the time, and that he believes the entry to be accurate, it is considered original and not hearsay evidence to establish the fact in question: Doe v. Turford, 3 B. & Ad. 890; Nicholls v. Webb, 21 U. S. 326; 1 Greenleaf’s Ev., sec. 115; Farmers’ Bank v. Whitehill, 16 S. & R. 89; Chaffee v. United States, 85 U. S. 516; Abbott’s Trial Ev. 398; Thomas v. Price, 30 Md. 483.

In discussing this subject in Chaffee v. United States, 85 U. S. 516, Justice Fields said:

“ That rule, with some exceptions, not including the present case, requires for the admissibility of the entries not merely that they shall be contemporaneous with the facts to which they relate, but shall be made by parties having personal knowledge of the facts and be corroborated by their testimony if living and accessible, or by proof of their handwriting if dead or insane or beyond the reach of the process or commission of the court. The testimony of living witnesses, personally cognizant of the facts of which they speak, given under the sanction of an oath in open court where they may be subjected to cross-examination affords the greatest security for truth.”

Applying this rule to the evidence under consideration, it was incompetent for the purpose for which it was offered. The record was not only made by one without knowledge of the facts, but it was not the report of the inspectors. It was what the learned trial judge appropriately denominated a “summary of the report.” Whether the original slips were in existence or not does not appear, nor was any attempt made to show that the summary made up by the clerk was true. The diligence and accuracy of the inspector, and the fidelity of the messenger stand between the record and the fact sought to be established by its introduction. It could hardly be expected that the inspectors would remember the inspection of the particular cars; and reports or memorandums made by them at the time might be used by them for the purpose of establishing the fact of inspection ; and from such fact and refreshing their recollection by reference to the reports prepared by them they might be able to testify that the seals of the cars were in good condition when they inspected them because of their practice of noting in the report any defect in that respect. No logical inference of action and care by the inspectors and messengers is deducible from the office record offered by the commonweath. Subject to the well known exceptions, the law rejects verbal or written reports of transactions given by persons, when offered as evidence, as hearsay, and the rule applies even if no better evidence is to be found: 1 Greenleaf’s Ev. sec. 125; 1 Phil. Ev. 209. The right of a defendant to be confronted by the witnesses against him and to test the truth of their evidence by cross-examination, is too valuable to be disregarded and the exceptions to which we have referred ought not to be enlarged except from manifest necessity. We are of the opinion, therefore, that the objection to the admission of the evidence referred to must be sustained.

There was sufficient evidence of the identity of the property found in the possession of the defendants to warrant the submission of the case to the jury. The peculiar quality of- the property, its quantity, its location, and the suspicious conduct of the defendants with reference thereto, coupled with the fact that a larceny was established by the evidence, justified the submission of the case on the identification of the g-oods.

The objection that a conviction of the defendant Black could not be sustained because the evidence tended to establish the crime of larceny is not well taken. Black’s -first connection with the property was about two months after the larceny. There is some evidence in the testimony of the witness Porta, from which the jury might have concluded thq,t the -property was taken to Black’s place by a third person. In order to convict the defendant of larceny because of the possession of the stolen property it must be made to appear that the possession was recent. The law does not declare just what this period is ; much depends upon the character of the property and the circumstances of the case. But after the lapse of time shown by the commonwealth’s evidence an inference of larceny does not necessarily arise. The facts disclosed by the evidence in addiction to the possession warranted the inference by the jury of receiving rather than larceny. We find no substantial error except that relating to the admission of the record of car inspection, as set forth in the second, third, fourth and thirteenth assignments. The judgment' is reversed and a venire facias de novo awarded.