67 Md. 307 | Md. | 1887
Lead Opinion
delivered the opinion of the Court:
The appellants were indicted, tried, and convicted, for the offense of having conspired and combined together, to make false and fraudulent returns of votes .cast at a municipal election, held in the City of Baltimore on the 27th of Oct., 1886. The three appellants first named in the indictment were judges at said election, and the two last named were clerks. The indictment charges that they “willfully, fraudulently, and unlawfully did conspire, combine, confederate and agree together, to fraudulently count and return large numbers of illegal votes cast at said election, in said seventh precinct of the first .ward, and to cause to be falsely entered on the hooks of the polls for said precinct of said ward at said election, large numbers of names of persons who .did not vote at said election,” &c.; and that they did, in pursuance of such conspiracy,fraudulently count and return a large number of illegal votes, “and did fraudulently cause to be falsely entered on the books of said election, &c., the names of a large number of persons who did not vote at said election, to wit: [naming particularly twenty-one persons] ; all of which persons did not vote at said election as the appellants well knew.”
It is apparent, from the averments of the indictment, that one of the leading questions in the case was, whether the persons named in the indictment as the persons whose names had been falsely entered in the poll-books of voters as having voted at the election, did in fact vote, as certified by the appellants in the return of said election.
The most simple and direct means, of course, of ascertaining this fact, would have been by the testimony of the persons themselves whose names were thus entered and
In the course of the trial, the appellants took three bills of exception to the admissibility ,'of evidence, adduced by the State, for the purpose of proving that the persons named in the indictment as having been falsely returned as voting, did not in fact vote at the election. It appears-by the first bill of exception, that the State called a witness named Crawford, who testified that he was a challenger at the precinct polls where the appellants officiated' as judges and clerks, and that he had a duly certified copy of thej-egistration poll-hook for that precinct, in which he checked off the names of all persons who voted. That he was at the polls the whole day, except for about am hour —half an hour to get his breakfast, and half an hour to get his dinner — and that during the time of his absence he left the boob in the hands of Foxwell and Hamilton,, who acted in his place. He was then requested by the State to produce the book so used by him at the polls ; and the hook, purporting to be a duly certified copy of the registration poll-book of the precinct, being produced by the witness, the State offered the same in evidence, for the purpose of showing that the witness, Crawford, and Fox-well and Hamilton, had checked off on it the name of every person who had voted at that election ; and offered to follow up the proof by evidence of Foxwell and Hamilton, as to what marks had been put in the hook during the hour when it was not in Crawford's possession. To the use of the boob in evidence the appellants objected ; . hut the Court overruled the objection, and allowed the 1 hook to he used in evidence, under the offer by the State, ! and the appellants excepted.
By the second bill of exception, it appears that the State proceeded with the examination of the witness Crawford,.
In the third bill of exception it is shown, that the State further proceeded with the examination of Crawford, as to his use of the book, and the care with which he checked off the names of those voting; and at the close of his examination, the State called Charles Foxwell, who testified “that when Crawford left the polls each time, he gave said book into the custody of himself (the witness) and Hamilton, and that they returned it to Crawford each time when he came back : That during Crawford's absence Hamilton held the book, and that he, Foxwell, was present with Hamilton all the time, and saw him check off the name of every man who voted.” It is also shown that a summons was issued for Hamilton, but it was returned non est.
After the State had closed its evidence, the appellants asked the Court to exclude from the consideration of the jury the challenger’s book produced by Crawford, because all three men who held it at the polls had not been produced, Hamilton not testifying, and therefore the original proffer of the State had not been fulfilled. But this request was refused, and the appellants excepted.
We have thus fully stated the facts as set out in the bills of exception, in order to show exactly how the questions arose, and what -was the scope and extent of the rulings of the Court upon the objections taken by the appellants. The whole matter seems to be reducible to a
There is no.point made upon the fact that the registration poll-book, used and produced by Crawford, was a copy; nor could there be any such objection taken to it. It was an official copy, duly certified under the law; but it derived its importance _and effect as evidence from the feet of itspuse and the checks or marks that were made therein at the polls, during the progress of the election. f As to.such checks or marks, therefore, they must be re-jlj garded as original entries or memoranda, made cotempo-j/¡¡ raneously with the transaction to which they relate. i"
This, as we have seen from the facts stated, is not the case of the use of a book or entry for the mere purpose of refreshing the faded recollection of a witness. But it is the case of a witness who does not profess to be able to repeat from memory all the details of the transaction in question, but testifies that he made correct entries a't_the time of the transaction as it progressed, and that he knows that such entries were made in accordance with the truth, and that they faithfully represent the whole transaction as it occurred; and the question is, whether in reason, or upon any well settled doctrine of law, such entries ought to be excluded as evidence, when offered in correction with i;the testimony of the witness ? We certainly know of no idecision in this State that would require the exclusion of /isuch evidence; nor are we aware of any established prin- / ciple that requires it. On the contrary, we think both decision and principle fully justify its admission.
Nor is there any real departure made in these decisions from former settled doctrine upon the subject. This is fully shown, by a careful and able review of all the cases, by Messrs. Gowen and Hill, in Note 377 to page 412 of 2 Phillips Evidence (2 Vol. notes, 726.) And in the case of Halsey vs. Sinsebaugh, 15 N. Y., 485, the same thing is shown, and the principle deduced from the cases by Messrs. Co wen and Hill, in their note to Phillips', is, in that case, fully approved. In the case of Halsey vs. Sinsebaugh the question was as to what a witness had sworn on a former trial, and one of the counsel engaged was called as a witness, who testified that he was present at'the former trial, and took notes of the testimony, and that he had no doubt of the correctness of his notes, which he produced. But objection was made to his stating what the witness had said, unless he recollected the testimony independently of the notes taken by him; and upon his saying that he did not, the objection was sustained by the Court below. But upon appeal that ruling was reversed ; the Court of Appeals holding, that where a note or memorandum made at or about the time when the event or transaction mentioned in it took place, and where the author swears that he knows it to have been correct when made, such note or memorandum may be read to the jury as evidence, in connection with the oral testimony of the witness. And the Court say, what is
It has been urged in argument that the entry or memorandum can only he used where the witness has no
Here, the' book was offered in evidence in connection with the testimony of Crawford, with a proffer of other evidence to cover the whole time from the opening to the close of the election polls. Crawford testified to the fact that he had checked off all but one of those who had voted at the polls, while he ivas there; and Foxwell testified, that, upon both occasions when Crawford left the polls, he, Crawford, placed the book in the hands and custody of witness and Hamilton, and that they gave it back to Crawford upon his return ; and that during Crawford’s absence Hamilton held the book, and he, Foxwell, was present with Hamilton all the time, and saiv him check off
Nor was it any sufficient reason for excluding the book that Crawford could not identify each and all the marks or checks placed in the book by himself, and distinguish them from those made by Hamilton or Foxwell. Whether the marks were made by one or the other of these witnesses was quite immaterial; for the checks or marks placed in the book were simply to designate those who had voted; and it was not so much the purpose of the i evidence to show what persons had voted, as to show in j a negative way that those particular persons named in | the indictment did not vote, as certified by the appellants.
Nor was the failure to produce Hamilton as a witness to testify cause for excluding the book, in view of the testimony of Foxwell; for the latter testified that he was present and saw the name of every man who voted, during the absence of Crawford, checked off by Hamilton, and that the book in that condition was returned to Crawford. The absence of Hamilton, doubtless, afforded matter of comment to the jury, and was a circumstance for their consideration in estimating the value of the evidence; but in view of the testimony of the witnesses in relation to the book, and the manner of its use at the polls, the Court was clearly right in refusing to exclude it from the consideration of the jury. If the indictment had been for wilfully and corruptly omitting the names mentioned from, instead of including them in, the returns, and on the trial the traversers had offered the evidence here offered by the State,/very fair-minded person would say at once that the evidence ought to be admitted; and clearly, if it would be proper to admit the evidence in that case, it ought not to be excluded in this. Its weight and force the jury wej-e vei’y competent to consider, the only question for the Üourt being its legal admissibility.
The case has been very ably and ingeniously argued for the appellants, and we have carefully considered all the points taken; but we discover no error in the rulings of the Court below, and those rulings, as presented by the bills of exception, must be affirmed.
Rulings affirmed, and cause remanded.
Dissenting Opinion
filed the following dissenting opinion:
The bills of exception make a very meagre statement of the facts of this case. We have not, however, any legitimate means of knowing what occurred at the trial in the Criminal Court, beyond what is stated in the record. We are strictly confined to that, and are obliged to foun'd our opinion exclusively upon what is therein stated. John Crawford, a witness for the State, testified that he was at the seventh precinct of the first ward of the City of Baltimore at the last municipal election; that he was there during the whole time the polls were open with the exception of an hour; that during that hour of absence he left a book with Foxwell and Hamilton. The testimony in reference to this book is thus stated in the first bill of exception: “Q. What book did you have there — you say you had a book there? A. Yes sir. Q. Get it and let us see what it is?” The witness here produced a book purporting to be a duly certified copy of registration poll-book of the seventh precinct of the first ward; to the use of which in evidence the traverser objected. The State offered the book for the purpose of showing that the witnesses Crawford, Foxwell and Hamilton, had checked off on it the name of every person who had voted at that election, and offered to follow up the proof by evidence of Foxwell and Hamilton as to what marks had been put in the book during the hour when it was not in Crawford’s
The traversers were indicted for a conspiracy, fraudulently to count and to return large numbers of illegal votes cast at the municipal election, and to cause to be falsely entered on the poll-books large numbers of persons who did not vote at the election. And the overt act of the conspiracy was charged to be the false entry on the poll-hooks of the names of twenty-one persons who did not vote. The names are stated in the indictment. As a matter of course, unless the State could succeed in showing in point of fact that some one of these twenty-one persons did not vote, the indictment could not be sustained. The hook was offered for the purpose of showing that they did not vote, and that the entry of their names on the poll-books was fraudulent and false.
If the names of all persons who voted were checked off on the book which was offered in evidence, it followed as a necessary inference that those persons whose names were not checked failed to vote. These checks were made without the knowledge or acquiescence of the accused, by persons who kept the hook in their own possession. They were in fact private unsworn declarations that certain! persons voted, and that certain others did not vote. The^ law has prescribed with great accuracy and precision the circumstances under which unsworn memoranda may he admitted in evidence. In the second reign of Queen Anne, the case of Price vs. Earl of Torrington established the rule of evidence, which has always been recognized and maintained by the Courts of this State. It made an exception to the general rule which excludes hearsay testimony. In Romer vs. Jaecksch, 39 Md., 589, this Court speaking of the doctrine in question, quotes with approval the following passage from Taylor on Evidence : “ From the cases cited above, it may be collected, that in order to
These rules of the common law prevail in Maryland. Let us examine some of the decisions of this Court. In Owings vs. Piet and Low, 5 Gill & Johnson, 134, cited in the opinion of the majority of the Court, a witness testified that he and one Dukehart were clerks in the employment of the plaintiffs who carried on the hardware business in the City of Baltimore ; that during that time various articles of hardware -were sold and delivered to the defendant; that sometimes the things were delivered by witness to defendant, or his order ; sometimes by plaintiffs or one of them ; and sometimes by Dukehart; that the charges for the same on the day-book of plaintiffs were at times made by witness, or by one or other of said persons ; that all the things charged by himself, he knew were delivered as charged, because he never made such charges without delivery; and that it was the constant usage of the plaintiffs and Dukehart, never to make entries in the book without a like delivery. The defendant objected to the admissibility of all the evidence, except the evidence of the entries actually made by the witness, and the goods, amounts and particulars comprised in such, entries ; and Baltimore County Court sustained the objection. .The Court of Appeals affirmed this ruling. The witness
Let us recur to the testimany as stated in the first bill of exception. The marks in the book were mere private memoranda made by the witnesses. They were as distinctly hearsay, as if they had been mere oral statements. I think that I have shown by reference to decided cases, that no such testimony is tolerated in our Courts. The book might have been used to refresh the memories of the witnesses. In that case they ought to have been required to state what recollection they had on the subject as ruled in Waters vs. Waters, 35 Md., 531. Or if they had forgotten j the particulars, yet knowing the writing to be genuine, \ their minds were so convinced, that they were able to swear positively to the facts, their testimony ought to have been received ; this would have been according to the decision in Martin vs. Good, 14 Md., 398. The facts to be proved were that the twenty-one persons named in the indictment were falsely entered as having voted, and that they did notin fact vote ; or, at least that someone of them was falsely entered as a voter, and failed to vote. The record does not state that the book showed anything whatever about anyone of these persons ; nor does it state that any of the witnesses mentioned any one of them, or in any way alluded to one of them. It is stated in the first bill of exception that the book was admitted in evidence, on the pledge of the State to follow it up by evidence of Eoxwell and Hamilton as to what marks had been put in the book during the hour when it was not in Crawford’s possession. In the second and third exceptions, evidence was offered tending to show that the names of all persons who voted had been checked off on the book. This proof does not remove the objection to the admissibility of the book. In the view of the law the book was hearsay ; a private memorandum made by the witnesses. As such it is peremptorily excluded by the
The crime alleged against these traversers is one of much enormity. But surely no one willimagine that they are not entitled to be tried according to the law of the land. Upon the Courts is devolved the solemn duty of administering this law, “without fear, favor or affection,” dealing out justice strictly and impartially to all without respect to persons. It is my deliberate conviction that the evidence in this record was admitted contrary to the law as heretofore understood and established ; and that the traversers are entitled to a new trial.
(Filed 21st June, 1887.)