Commonwealth v. Ford

130 Mass. 64 | Mass. | 1881

Endicott, J.

The ruling in this case, whereby the. witness was precluded from looking at the printed report in the Boston Herald to refresh his memory, seems to have been made on the ground that the witness could not be allowed to refresh his memory from a printed copy of his own written report.

We are of opinion that this ruling was erroneous; and that the witness should have been allowed, for the purpose of refreshing his memory, to look at the printed report, which he stated, as of his own knowledge, was printed substantially as made by him. It was not contended that the written or printed report, or any portion of its contents, could be put in evidence. It was clearly incompetent, in any aspect of the case, as presented. The rule, therefore, that, to prove by oral testimony the contents of a paper, relied on as evidence, it is necessary first to show that it has been lost or destroyed, or that upon diligent search it cannot be found, has no application to this case. If such rule did apply, it is difficult to see why it was not competent for the defendant to prove that it was the custom in the Herald office to destroy all such original written reports after printing them; but that question it is not necessary to consider.

In order to refresh the recollection of a witness, it is not important that the paper, book, or memorandum should have been written or printed by the witness himself, or that it should be an original writing. It is sufficient if he saw it while the facts stated therein were fresh in his memory, and he knows that they are correctly transcribed or printed. Upon inspecting it, he can state the facts if thereby called to his recollection. 1 Greenl. Ev. §§ 436-439. Chapin v. Lapham, 20 Pick. 467.

In Coffin v. Vincent, 12 Cush. 98, which was trespass for taking and carrying away certain sheep, the defendants attempted to prove that the sheep were taken by them as field-drivers, while running at large, and for that cause were taken up and impounded. To prove this, they called a witness to show the conténts of the notice posted up by them as field-drivers, which notice had been .lost or destroyed; and in testifying to its contents it was held that the witness could refresh his recollection by referring to a form of such notice, which, though not made by himself, he had compared with the notice posted up, and found them to correspond. In that case, the general rule applicable here is well stated, though the case differs from this in the fact, that the contents of an original paper were sought to be proved, and therefore it was necessary to show that it had been lost. In this case, the original written report of the witness could not have been used in evidence. In Kensington v. Inglis, 8 East, 273, a license to trade with the enemy had been lost. A witness was called, who had made an entry of it in his memorandum-book, for the private information of himself and his employer, which book was not produced in evidence; and it was held that the witness might testify to the contents of the license from memory, although the book was not produced, for, if in court, it would not have been evidence per se, but could have been used by the witness only to refresh his memory.

The case most nearly resembling the case at bar is Horne v. Mackenzie, 6 Cl. & Fin. 628. A surveyor made a survey and report, which he furnished to his employers, and being called as a witness he produced a printed copy of this report, on the margin of which he had two days before, to assist him in giving his explanations as a witness, made a few jottings. The printed report had been made up from his own original notes, of which it was in substance, though not in words, a transcript, and it was held that he might look at the printed copy to refresh his memory. In Rex v. Duchess of Kingston, 20 How. St. Tr. 355, 619, a witness was allowed to use a copy of his own memorandum made by another person in his presence. In Burton v. Plummer, 2 A. & E. 341, a clerk of a tradesman entered the transactions in trade, as they occurred from his own knowledge, and the tradesman copied them into a ledger in the presence of the clerk, who checked them as they were copied. It was held that the clerk might use the entries in the ledger to refresh his memory, though the waste-book was not produced nor its absence accounted for, the entries in the ledger having been made as by the clerk himself. It was in the nature of a duplicate original, and is similar to the case at bar, where the written report of the witness was printed in the newspaper, to his own knowledge substantially as made by him. See also Burrough v. Martin, 2 Camp. 112; Wood v. Cooper, 1 Car. & K. 645; Doe v. Perkins, 3 T. R. 749; Regina v. Langton, 2 Q. B. D. 296.

In Huff v. Bennett, 2 Selden, 337, it was said, “ It is not necessary that such writing should have been made by the witness himself, or that it should be an original writing, provided after inspecting it he can speak to the facts from his own recollection.” So a witness may be allowed to refresh his memory from notes taken by counsel at a former trial; Regina v. Philpotts, 5 Cox C. C. 329; or from Ms deposition, or a copy of the same. Smith v. Morgan, 2 Mood. & Rob. 257. George v. Joy, 19 N. H. 544. And in Henry v. Lee, 2 Chit. 124, where a witness was allowed to refresh his memory from a document not written by him, Lord Ellenborough said, “ If upon looking at any document he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum was written by himself, for it is not the memorandum that i > the evidence, but the recollection of the witness.”

Exceptions sustained.