48 N.H. 282 | N.H. | 1869
Was the memorandum in this case competent evidence ?
The leading case on that point is Haven v. Wendell, 11 N. H. 112, where it is held that " where a witness testified that he was present at a conversation, and made a memorandum of it immediately after it took place; that he had now no recollection of all the particulars ; but that he had no doubt that the facts stated in the memorandum were there, and that he should have sworn to them from recollection within a short time afterwards ; the memorandum was admitted in connection with his testimony to show the particulars of the conversation.” It will be well here to stop and examine what the memorandum in that case was admitted to show, and why it was thus admitted ?
1. It was admitted to show the particulars of the conversation.
2. Because the witness had forgotten those particulars. It seems that an examination of the memorandum did not so refresh the memory of the witness as that he could then state from recollection the particulars of the conversation. He could state as far as he could recollect, and the memorandum could only be admitted to show something that the witness did not then remember, though he recollected that when it was made he knew it to true.
If independent of his memorandum he still retained a perfect recollection of all the particulars of the conversation, he could state them, and should be required to state them from his recollection and not from a memorandum he may have previously made. And if after he had examined his memorandum his memory was so refreshed that he could recall and state from his recollection thus quickened or revived, all the circumstances fully, then he should so state them from his recollection, and the memorandum becomes unnecessary as evidence for the jury, and incompetent.
This point is made very clear in Haven v. Wendell, supra, from reading the case, where it is said on page 113, that the witness stated that he could not after reading the memorandum undertake to say that he now recollected the facts or knew them, otherwise than by finding them in his handwriting.
In some of the subsequent cases where a similar question arose, the same general doctrine was held; but the rule is not always stated so fully, and the admission of the memorandum in evidence made to de
But in State v. Shinborn, 46 N. H. 504, this distinction is again particulariy noticed, and the true, rule as established in Haven v. Wendell is stated, viz.: that such memorandum maybe read in evidence when the witness can verify the same, as having been true when it was made, and " has since forgotten the transaction.” We understand the rule to be well settled here, that a witness may consult any memorandum, and then if he is able to swear to a fact from recollection, the memorandum does not become evidence to go to the jury. But when the witness knows that the memorandum was made at or near the time of the transaction, and knows that it was correct when made, but has since forgotten the circumstances, so that even after examining the memorandum, he is still unable to recall them to mind so as to state them from memory, then the memorandum may be admitted, for it is the best evidence the case admits of. In the case before us, although the particulars stated in the memorandum had passed from the memory of the witness until he saw the memorandum, yet upon examining that, his memory was refreshed so that he could state all the particulars from memory. There was therefore no need of the memorandum, and it was properly rejected.
The price at which the brindled cow was sold by plaintiff three years after the transaction, was properly admitted in evidence. If the objection was that the sale was after a controversy had arisen concerning the value, or if it was that the sale was too far removed from the scene of the bargain in question, either in point of time or distance, we think the exception must be overruled, and that it was within the discretion o,f the court to admit the testimony. Robinson v. Railroad, 7 Gray 92; White v. Railroad, 30 N. H. 208; Carr v. Moore, 41 N. H. 131; Cross v. Wilkins, 43 N. H. 332; French v. Piper, 43 N. H. 439; Kingsbury v. Moses, 45 N. H. 222; Thornton v. Campton, 18 N. H. 20.
Judgment on verdict.