*1 v. UNITED STATES. PUTNÁM'
Syllabus. the review of all This numerous very completes error which have been our consid- pressed upon grounds that we find that result are all with- eration, out merit.
The is, therefore, judgment
Affirmed. PUTNAM UNITED STATES. v. SAME.
SAME ERROR THE OF THE TO CIRCUIT COURT UNITED STATES THE FOR
DISTRICT OF NEW HAMPSHIRE.
Nos. 574. Submitted 1896.Decided January 23, May4, 1896. president bank, agaiust defrauding An indictment its for a national de- “ Bank,” scribed the bank carrying as the National Granite State on a banking city national business of Exeter.” The showed .evidence was, that the authorized name bank the National Granite State Held, Bank of Exeter.” that the variance was immaterial. person place August, December, Conversations with a took 1893. In grand jury he testified to them before the which found- the indict- ment in this case. On the trial of this evidence before case.his grand jury memory was offered to as to refresh those conversa- Held, cotemporaneous tions. that that evidence was not with the con- versations, support probability a reasonable would witness, trial, impaired if at the time of the was not equally writing; so when his was committed to and that the evidence therefore inadmissible for the offered. was bank, president defrauding On the trial a- national bank a wit- asked, cross-examination, government, ness for the on as t.o the to,- president. being objected amount of stock This held cross-examination, out, proper govern- ruled as not having opened up ownership ment affirmatively “not of the stock.” Held, that, produced as the order in which shall be evidence is within the court, discretion sought of the trial and as the matter to lie elicited on. cross-examination for any the accused was offered him at subsequent stage trial, prejudicial no error was committed ruling. against provisions When an offence begun of Rev. Stat. 5209is in one § TERM, 1895. another, completed United States court the latter State prosecution jurisdiction of the offender. over the has State proof guilt sufficient to warrant the court leav- in this case was *2 guilt jury the accused. ing to the decide .to each, having been distinct the entire on both counts as The sentence punishment imposed undergone, although the convic- will be amount of second are set aside. and as to the count tion sentence ordered the the court submitted, case This having judg- was be affirmed. below to judgment ment Subsequently, is stated The case opinion. vacated. Streeter for error.
Mr. S. plaintiff Fra/rtk for defendant error. Solicitor General Mr. of the
Me. Justice "White delivered court. opinion a of a of error to obtain reversal This is a writ judgment States for District of Court United of the'Circuit a on verdict of entered jury, New Hampshire, finding the second and seventh counts of an upon guilty defendant of sec- violations indictment which provisions alleged Statutes. 5209 of the Revised tion ten counts. A consisted of The indictment de~. originally trial, 5 and 8 was sustained. at 3, to counts Upon murrer 6, evidence counts 4, the close of the prosecution, from the consideration of the 10 were and jury, withdrawn 2 and 7. 1, submitted to them on counts the case was and count 1 transaction, 1 and 2 covered same charg- Counts unlawful while count 2 an embezzlement, an charged the same abstraction of property. defendant, count The second charged president 26, Bank,” National Granite State having, July with Exeter, New abstracted and
1893, unlawfully Hampshire, own and to his use certain described bonds converted obliga- of said association. tions, property The seventh count while defendant, charged president did, 1, aforesaid, and at the aforesaid, January between place 15, and without and and July “unlawfully wilfully, PUTNAM UNITED STATES.
Opinion oX the Court. and of said association, .the consent intent with knowledge defraud said abstract and convert to association, injure his own use funds and credits moneys, property association, wit, said thousand dollars of the forty moneys, association, credits of funds and said a more particular descrip tion of which funds and credits moneys, said jurors Before unknown.5’ a statement of trial, the items upon which the intended to a conviction under government rely count furnished, the seventh the district attorney, counsel for and the accused, court limited the evidence with to that reference count matters embraced in the list. sums, referred fifteen each of specification stated have been drawn the accused checks signed in the name of the bank him, as its president, to the order of the Loan American Com payable Trust Boston, or to order of H. N. Smith on.the National pany .Bank of institution located and *3 Redemption, banking doing business at Boston. checks The were delivered the de by fendant to the in in thereof Boston return cash payees ” in the form of checks or funds drafts him in handed to -the were the and checks Boston bank on Boston, paid by whom were drawn. they
A in overruled, motion arrest of been the judgment having court, 31, on 1895, sentenced defend- the January separately ant on each count to five in the state- years imprisonment the but Concord, ordered under prison imprisonment the seventh count be concurrent with should that- under the second count. errors, in are number. In addition ássigned eighteen
a second writ of on error was sued and out, this writ errors of the the sentence solely validity assigned relating num- This second writ was docketed and imposed. separately bered this court. We are from relieved the considering writ, of this second as well the as soundness the legality errors thereon as all the matters assigned, complained thereon were abandoned tbe hearing. Of error, the four 11 eighteen (Nos. assignments reviewed,
and are not and need not counsel, 18) pressed
voi,. cr.xn —44 TEEM, 1895. OCTOBEK 6 and 1 to affect both 16) (Nos. assignments Teh and to an had, conviction was relate as- coimts upon name of the bank in the between alleged serted variance defrauded and name established have been indictment No. 9 affects the second Assignment proof. co.unt error in a witness prose- and alone, permitting alleges refresh his examination, direct cution, 10No. to be alleges claimed illegal. Assignment a manner questions in the objections error sustaining the defendant of the bank owned during of stock amount acts to in the unlawful referred when alleged period while Nos. and committed, count were assignments seventh 1(7 over the offence set court attack jurisdiction count. forth the seventh these will which arise from
We consider assign- questions in which have been mentioned. the order just ments ' to exist between the name bank 1. Variance asserted and name i/ndiciment as established charged proof. referred to bank have defrauded was alleged . The association, as a
in the indictment certain national banking known Granite and National then there designated Bank, which said association had been heretofore created State under and of the laws of the United virtue organized America, which said was then and association States on a at' national business there carrying banking acting under of Exeter the laws aforesaid.” the city offered The evidence authorized name proved the National Exeter, the bank was Granite State Bank of the words “of Exeter” therefore, omission vari- being, *4 The if relied on. court held not material, ance that carried its known bank and was as well business the other. name as one text writers the rule that where the name
The state to be in an be indictment, third is used it must person of a proved 102a; Crim. Ev. sec. 1 Crim. .Proc. as laid. Bish. (Whart. 667, illus- 488, sub. sec. sub. authorities 3, sec. 3.) Many are We this rule referred to in the brief of counsel. trating v. PUTNAM UNITED STATES. 691 notice the two cases relied to wit: Mc on, principally v. 45 N. 153, Y. v. 132 Gary People, Sykes People, Illinois, 32. Both of these cases are conflict with Commonwealth v Jacobs, Mass. which last case the rule is . laid down as declared the trial court in case at bar. However, the case now before is from us distinguishable in Mc v. presented Gary People, Sykes People, supra, from the fact that the variance relied on in those cases in an of the name whilst here it consists integral part proper, in the omission of the words of which, whilst simply Exeter,” be understood as name; would refer part commonly of business of the A case ring only place corporation. where precisely State, point Rogers Georgia, a railroad was referred to an indictment company name under which it transacted and was business, usually in a well held, reasoned that the omission of the words opinion, ” at the name of the com close of Georgia designated was not a fatal variance. pany
In the the accused was bar, indictment charged pres- ident of bank, and it was the institution alleged therefore, carried on business at Exeter. It is impossible, “of the omission of the words Exeter” could suppose failed to defendant, have misled the any way convey referred to. It is. his mind what bank was intended could manifest, that the omission have therefore, oper- preiudice. dispose assignments ated to his views These from to 6.
2. the cov/rt in Error averred to have beencommitted by per- a witness, the memory mitting prosecution refresh called it, testimony to certain previously given by reference the witness grand jury. before error is asserted from which this ruling court in chief of have resulted was made the examination during He was a ex- C. M. bank Dorr, witness for the prosecution. the whereabouts of aminer, and was as to being questioned certain count of the indict- bonds referred to in the second and the ment. The of the witness was important, bear- had a direct matter as to which he examined was being *5 TERM, 1895. Opinion of Court. bill of the accused. The or innocence guilt time of took at the what place ruling, discloses exceptions as follows: “ what he Q. had done he tell ever, time, you Did any bonds ? with these “ I now recollect. A. Not that a to ask this witness : I leading ques- “'Mr. Branch propose at his answer. I have I taken am tion, because by surprise him if and I wish ask before jury, grand before the to certain he did tilings jury. not testify grand “ do that. You The Court: “ To I that object except. Streeter: Mr. “The Court: It is a matter discretion with the court ask who are on either side they surprised allow counsel say is not a matter of It exception. such question. “ : Branch Mr. By ' “ Q. minutes, apparently reading (Deferring Do now recollect that you of putting question.) that when discovered you testified before jury you grand went to Boston and learned that wei’e bonds gone you those and that he them, had acknowledged you Mr. Putnam Did not so on the 3d of August? you had those bonds day ? before the testify grand jury “ it that is is matter of I so. Mr. record, A. If it a suppose of the business letters. done considerable Putman “ †Q. if did before the am not so you asking testify grand ? jury “ it is a matter of I do the record. record, A. dispute If. “ Q. not recollect fact that asked him Do you you with ? had done them what he. “ it 1 still is Mr. Streeter: because object except in- before the and should not be the record taken jury grand ; and I it. here it is troduced improper object not think I do The Court: you improper ought say ruled court has is. after the I I did not “Mr. Streeter: honor’s beg your pardon; under: ruled on this stand you point. a done, It is often and when The Court: counsel say thing 'v. UNITED STATES. PUTNAM’ are recollects it is surprised by way thing of the court to the discretion allow counsel to direct within *6 of the witness to attention refresh something his recollection. “ the Court: By “ Q. Do recollect this conversation in view of at- you your it? now called to tention being “ I do not A. recall where I had that interview, distinctly I think it must have been at but the station Exeter. “ been, Q. It is not a it where must have but question recall it now. whether you “ Branch : Mr. By “ Q. Let me refresh a little your recollection further. Did before the said to him you testify grand some- jury you bond, and about the ‘Mr. T will Dorr, said, state thing ’ you going away i I am not ; A. sir I did. Yes, “Mr. Streeter: I here before this object reading — taken tribunal the records before the records grand jury — and I room renew the I took grand jury objection in, when it brother first two or three minutes my put ago. I then took to renew objection production grand records court. before this jury “ Mr. Branch: not. I am “ The Court: It is competent. : Mr. Streeter I except. (cid:127) “ Q. And did he not 1 will the bonds for say, as get you I can ?'
soon
“A. I can assent to that. Yes; “The It must be Court: understood that into putting is for a conversation done merely purpose the witness’s attention to the matter, that it is directing the witness remembers the in, not unless conversation and it here. states ‘ me, Mr. If honor will Streeter: your pardon my exception record, do its "is in the and I read want to be being of that. deprived “ The Court: is all That right.” TERM, 1895. our are attention which are pressed upon objections
Many to arise from the which were exceptions alleged properly which we but deem taken just during proceedings quoted, taken. or not reserved either unfounded exception court in its that a trial can, It is settled discretion,-permit, examination, to be asked, a when direct leading question the examination is counsel conducting surprised States, St. United Clair statements witness.. a memorandum It is clear that where 150. also U. S. refresh to witness purpose presented writing have been made the wit it must either memory, it or he must connected with direction, or under his ness for which as to make such way competent did below it. But here the objection use is .proposed the minutes itself the fact that address *7 had not been authenti taken before jury properly grand in the been reduced to that writing cated or they him or at the witness read over by or .examined presence taken,. reserves none of therefore, The the -time. exception hence, We in the matter, these shall considering questions. use of taken that assume these particulars was not to refresh jury objec before the grand memory tionable. that the of a witness be
It re- memory may elementary his attention to or memo- freshed proper writing calling rule is thus stated Greenleaf Greenl. (1 randum. The Ev. 436): '§ as are a witness can such facts testify^
“Though recollection, he is within his own yet knowledge permitted of a written and assist his the use to refresh memory, by com- in-a instrument, book, memorandum entry maybe do if the- is- in court. It does so pelled writing presented have been to be that should not. seem necessary writing it be nor that should an himself, original he to the facts it, after can speak provided, inspecting writing, recol- where the witness So, also, from his own recollection. in his he while the facts were fresh lects that saw paper that the and remembers that then knew particu- memory, ¡;. PUTNAM UNITED STATES. 695 lars therein stated. And it is not correctly mentioned that the thus used to refresh the necessary writing memory should itself admissible evidence: for if inadmissible be as for of a itself want be still referred to' may stamp, witness.” however, of the essence, to thus refresh the very right of the witness is, the matter used for
memory pur- with the occurrences as which pose contemporaneous the witness is called the rule which Indeed, testify. allows a witness to refresh his or memo- memory by writings randa is founded on the reason that the law solely presupposes that the matters, used for the were reduced to writ- purpose, so after the were fresh shortly occurrence, when facts in the mind of the witness, he can with be allowed safety to recur to them order to remove any weakening memory on bis which have from of time. part, supervened lapse
In Maxwell v. 113 U. S. Wilkinson, 656, 658, speaking Mr. Justice the court said: through Gray, “ Memoranda are not evidence reason of competent been made in the course of business, unless having regular with the transaction to relate. contemporaneous Nicholls Ins. Co. Webb, 337; Weide, Wheat. 375; Wall. and 14 Wall. v. United States, Chaffee Wall. 516. “ It is well settled that memoranda are inadmissible to re or, fresh the unless of a witness reduced to writing transaction, after the time of the and while must shortly have been fresh The memorandum must have memory. committed Holt in Lord Sandwell ‘presently writing,’ *8 ‘ 295; v. Sandwell, while the occur 445; Holt, Comb. S. C. hin recent, rences mentioned it were his recollec fres in tion,’ Lord in 2 Martin, v. Burrough 112; Camp. Ellenborough ‘ written transaction,’ with the Chief Jus contemporaneously tice Tindal in 313 Steinkeller v. 9 & P. or Newton, ; Car. ‘ or with facts so to,’ contemporaneously deposed nearly Chief Justice Wilde Lord Chancellor in (afterwards Truro) Aland, v. 2 & K. 1015. v. See, also, Car. Burton Whitfield Plummer, 2 Ad. & El. 4 341; S. C. Nev. & Man. 315; Wood TERM, 1896. 696 Opinion of the Coart. ; 1 & K. 645 Morrison v. v. Car. 97 Mass. 72, Cooper, Chapin, Evans, Ins. Co. v. 15 77; Garden 54.” Spring Maryland, time wliat oí after the In occurrence length appreciating u be considered as after contemporaneous,” shortly transaction,” or while in fresh the time his recollec somewhat, tion,” have differed courts course depending . each case. facts of particular v. & K. a was 645, 646, Car. Cooper, In Wood look before in at his examination commissioners allowed within a him, given bankruptcy, signed fortnight occurrences, certain when time happening Colwell, I. in his So State v. 3 R. were fresh memory. facts 132, to refer to a made witness was allowed memorandum a an trial, two after a when interval about a previous day from the time when the occurrences elapsed days eight which the In witness gave testimony. transpired concerning 323, it was held State. Alabama. Billingslea proper to refresh his a witness recollection resort to allow statements made within a week grand minutes jury which, he about was the occurrence after being interrogated. 54, Mutual Ins. Evans, Garden Co. In Maryland, Spring witness, who, five months after the occur held that facts, interested, and at the of a certain request party rence and swore to could not be al it, a statement writing to his belief its correctness. lowed testify at bar the indictment was found the Decem- case In the term, Court, of the District and the used ber of the witness was time at that memory refresh given The conversations to which the testi- the grand jury. before witness, before the related given grand jury, mony effort, third of the previous August. transpired therefore, to refresh the of the witness as to an interview, which had taken place August, by referring December, words, 1893 in; other to his testimony given witness more than four use testimony given the occurrence. think it clear that after We testi- months after time was lapse contemporaneous, mony given a reasonable would probability support *9 STATES. UNITED PUTNAM 697 V. Opinion tlie of Court. memory if at the time of the witness, impaired of on the so when his testimony prior was not
trial, equally committed occasion was writing. which we well rule to have with the just
In conflict settled courts, of of last referred, some there are adjudications States, in the of this noted of several margin opinion,1 resort rule an there exists exception general holding to refresh memory contempora which restricts right This is said to arise or neous memoranda exception writiug. adverse testi when a is unexpectedly surprised party witness, in which case he of his own may, pur mony witness, be permitted memory refreshing pose written, statements, or whether oral ask him as to any prior their reference to without error contemporaneousness. conclusion, hereafter demonstrate as we shall of this origi laid of the doctrine down from a arose misconception nally v. has been Collier, or Melhuish v. Beckett infra, Wright this first from correct continued departure merely following misunderstand And confusion thought principles. the mind of seems to have of those cases operated upon done, “it often and when said is court, the trial thing a witness recollects are way counsel say surprised allow coun of the court to it within the discretion thing, witness to which the attention of the sel to direct something counsel to But refresh his recollection/' right may in no on the a witness depends refresh way memory created have been may surprise a witness, to refresh memory the witness. The right matter, "Where exists surprise. independently by proper a. exists, be instrument for may refreshing legal be the witness himself permitted availed the course of without reference to the court referred to bv State, 1 Garth, Alabama, 44; Hemingway v. Alabama, 51 Campbell v. 23 Pearsall, 230; State, 530; Hurley 320; 46 St. v. Ohio Y. Bullard v. 53 N. 647, 651; Aldrich, 163; People Kelly, v. State 15 R. I. Hildreth 113 N. Y. v. Shoemaker, 531; Iowa, 223; Sorter, Kansas, Hall v. 70 Humble v. Railroad, Triplett, (N. George Iowa, 311; Chicago Dak.) 63 N. W. &c. Rep. 891. TERM, 1895. on the examiner counsel. part the examining Surprise *10 the latter’s adverse on of a witness unexpected by testimony, which was examination, was elements it direct among existed to ask a witness as to con- that determined right not for the him, statements previously tradictory with his but of memory, refreshing object purpose his this course or overthrowing, testimony, neutralizing- to neutralize where the allowed right impeach was only own existed. this- Indeed, one’s witness the testimony was a of the to part controversy doctrine as. surprise or contradict the- could be allowed neutralize one whether own witness under conditions which of his given testimony and which of the- culminated some was agitated,' long in. on Union and England statutory States provision the subject. we of the cases to which detailed have.above
A analysis that will clear the fact rest make referred upon but reason, solely exception sound upon supposed have adverted. which we & held Moo. Rob. was Beckett,
In Wright Denman, a review B., (Bolland, dissenting,) Lord where destruc that a witness evidence cases, gives previous called to call case which was prove, party tive be order to neutralizé his him testimony, permitted, as to had not at a the witness whether he pre to interrogate differ an account of the transaction time entirely vious given trial, him the that sworn to from ent other to establish the fact of also call witnesses party may inconsistent statements. of such making prior Q. 878, a for the Collier, B. In Melhuish omitted in her trial, having plaintiff, act of violence committed on the an plaintiff by speak counsel, was defendant, plaintiff’s questioned cross-examination, seen whether had mot asked she hair; take the she denied this, defendant plaintiff by asked whether on an examination before then magistrates, Avas it. said to saw had not she plaintiff’s attorney she if all-lies.. answered that had said so, The witness she PUTNAM v. UNITED STATES.
Opinion oí the Court. She then asked she had not made the same whether further and on statement, attorney specified objection being “ made the court ruled that the be question might put, discredit, but to remind the witness.” Queen’s Bench, at the
In the course the argument, defendant that it counsel for trial, motion for a new urged but Pat- was error to have put, question permitted fact that it had called attention terson, J., ” “ the witness. The allowed reminding ” the word remind was understood counsel evidently witness, with caution he said a mere synonymous 886): (p. had the to remind should have char- A merely admonitions which sometimes are acter those given general consider that he is himself and to to a witness to recollect *11 does not take down, and which oath, judge on speaking to at have not, farthest, It notice to the ought gone jury. had not whether been party inquiry beyond simple have been so should, rate, It shaped before. any examined the former admitted statement have that witness might herself.” alluded to without discrediting that the -was counsel objection also, urged So, opposing on to If counsel ask gone (p. 882): premature, saying not it ones, the true the former her whether statements ; n but the to time object objection would have been proper n taken.” now from that differed would have conclusion, a in to coming Patterson, J., .difficulty found (p. 888.) J., observed (p. 889):
Coleridge, taken between has been which I in the distinction agree statements, former as to the witness a question putting suggested It has ingeniously his answer. and contradicting it must be admissible, be if the that, Mr. Smith question without the witness’s memory, the fact to to recall so as put he then be account gives if the his credit to impeach tending in conceive case I- can first: and different from the first his be flurried witness may that might happen. when his statement his examination and afterwards vary TERM, 1895. to but it is that circumstances; is recalled said here attention to contradict distinctly question the object draw a and I line, difficult to am It not is disposed witness. think that, I case, too closely. present draw to than farther did not be inquiry may properly go question carried.” J., said 890): Erie, (p.
‘ “ that witness effect, has A says, plaintiff plaintiff’s Then he is asked whether he has of action. not, no cause think different statement. I that question formerly, with rule that a not inconsistent party knowing proper, the. him, infamous to and must ought produce a witness take of his the chance and then allowed answers him. We do not contradict interfere with evidence bring are witnesses will hold There treacherous who out rule. then, fhcts on one side in a cause, can that they prove some other make motive, or from statements a bribe sup- In cases, interest. such law undoubt- opposite port permit party calling edly' ought statement, if what ascertain, former him as possible, him tb it.” change induces moreover, intimated a doubt to the cor
The judges, Denman’s Beckett, of Lord opinion Wright rectness of a when far right surprised so recognized party, his own to call witnesses, other witness, the testimony but statements, followed contradictory Wright to prove the extent it-held one v. Beckett might,'when to in of his ask him as witness, surprised *12 statements, to in order neutralize his consistent testimony, of however, “remind,” the word in stead the employing, Collier, v. remind,” The word in neutralize, used Melhuish sense, of the would, in its broadest be certainly, susceptible of to and if it were' re interpretation refreshing memory, be that construction the-case would au undoubtedly ceive for the that one taken thority proposition by surprise, of his witness, could the own testimony memory refresh.the witness his the attention by calling contradictory- turn without reference statements -previously PUTNAM UNITED STATES.
Opinion of the Convt. statements or not whether such were were contemporaneous, oral or But the or whether written. context opinions demonstrates that the has no case such The significance. the of one learned not considering right judges the witnesses, refresh his whether could memory but is, that neutralize his own witness; a had to do so as a whether witness right party incidental, him effect be introduced though might his credit. shows reasoning opinion impeach that the "use of the word “remind” was intended' rather as a neutralize, on the case surprise, qualification right v. Beckett, which was Wright and, therefore, recognized in Melhuish case to was ruling purpose rule of evidence which restricts elementary overthrow of witness memory refreshing contemporaneous for the And view that the memoranda support writings. of in the witness Melhuish case spoken reminding with the to refresh not considered synonymous right that the is found in the fact before whom recollection, judge, tried, in the was first case case subsequently, Williams, C. C. held that where a Cox Regina a different answer on his witness prosecution gave that which examination in chief from his expected, case before the coroner or might justice, deposition in his be, be hands put refreshing might his from the and then deposition might memory,” question court further said be to him in form. The leading put same answer if the witness ‘giving persisted refreshed, after his been so question might but form, to him from the deposition leading repeated could counsel when witness answered further. any proceed in 1854, was decided, v. Collier after Melhuish A few years Act, Law Procedure which, the Common Parliament adopted as follows: other provided things, among not be allowed to a witness shall “A producing party of bad character, evidence credit by general impeach in the shall in case opinion but he may, *13 TERM, 1895. 702 Opinion of the Court. other adverse, evidence,or, contradict him judge prove that he has other times of the made at leave judge, prove with his but be- a statement present testimony; inconsistent mentioned can be the circumstances fore such last given, proof sufficient to statement, designate particu- supposed witness, mentioned he must occasion, lar must be whether .or not he has made such statement.” asked 17 22. and 18 Viot. c. 125, § of this statute was to one a'
Clearly give right under circumstances to or discredit the certain testi neutralize own and in witness, of his rule mony way change ho a witness’s writ as refreshing contemporaneous statute was, or memoranda. This a' substantially, ings legis of the correctness of the rule laid down in lative recognition Beckett, v. the modern cases have treated Wright English the act as contradict and power applying neutralize of one’s own witness when he adverse proves' and as examination of the witness hostile, controlling inconsistent statements, himself well as the concerning prior Brine, thereof other witnesses. Faulkner v. 1 Fost. proof 251; v. 1 & Finl. Dear Fost. & Finl. 433. Knight, view of the act is also the one taken This by Taylor on Evidence. He refers to the Law Proced- treatise Common Act of settled how far a ure having question is at discredit his own witness,” liberty party “ for which he Westminster Hall.” says years agitated 1246. Ev. Statutes similar to the act have Taylor English § Union, various States some before and passed others thereto. 1 Greenl. Ev. note b to 444. subsequent §
The case held that a State, Alabama, 44, Campbell had not trial court committed error in the State’s permitting of a witness for the whether attorney inquire prosecution on the not, made statements day preceding, conflicting what, he with had said trial, on the avowed object to refresh the witness’s question being memory. ruling was rested on the Beckett, authority Wright supra, on the of Greenleaf and But the learned opinions Phillips. court overlooked the fact v. Beckett Wright expressly v. UNITED STATES.
PUTNAM *14 to the order neutralize confined put question, right him the witness when of party testimony introducing neither in treatise of taken was by surprise, this a wit that of is examine right G-reenleaf nor Phillips his of confounded ness neutralizing purpose and different of refresh confused with distinct faculty witness by .contemporaneous writings ing 51 Garth, Alabama, v. was 530, or memoranda. Hemingway of case. authority previous placed simply upon 230, 53 N. Y. trial in the Pearsall, In Bullard v. called for the court, a witness was lower purpose proving between the witness certain conversation took that a place June, but to 1868, and the the 17th defendant previous the witness the con testified that plaintiff surprise 24th The ma on the date was July. versation took place to ask the whether The terial. plaintiff permitted that the on a sworn conversa not, examination, he had prior of the trial took action June, tion this place judge to be held The Court of speaking through, Appeals, proper. J., said Rapallo, (p. 231):
“We are of that such asked may opinion questions recollection, his recall- witness for the purpose probing made, his mind the he has statements previously his inconsistency. out an apparent drawing explanation wit- result in course of examination This may satisfying the his state- error, that he fallen into and that original ness has is to elicit truth. It and it calculated correct, ments the circumstances is also for the. proper showing him. to. call answers induced Though party him in contradictions calculated of the witness involve that is sufficient reason not. impair credibility, excluding inquiry.” the learned this
As judge authority supporting language said (p. 232): in which the is re The cases in State subject principal v. Denio, 118; 5 ferred to are: v. Thompson People Safford, v. 22 311; Sanchez N. Y. 147: Blanchard, Comst. People, and in it is discussed Melhuish very thoroughly England TERM, 1895 Opinion Court. of tho Q. B. It since been 878. has there Collier, regulated Parliament, The 1854. Ameri act passed English in 1 are referred to Greenl. can authorities Ev. sections 444, 444a and notes.’' fact does not that Melhuish Collier sustain the prop cited we which it thus have
osition is es support already a casual examination of tablished, and even the New York to demonstrates that do not cases referred up are but, adverse hold views the'contrary, expressed, reference to them. The sections only remaining on Evidence. One of these 444 and 444a of Greenleaf which we have bears no rela sections already quoted, (444) other, 442, tion to the does not to refresh refer subject. The *15 treats of the but whether one recollection, question may to, The third his own witness. section referred contradict 444a, of not a of the treatise Greenleaf. The learned is part to or twelfth, btedfield’s, referred tlie edition of course judge work, 18110.where the comments Greenleafs published text, are included in the in brackets, of the editor and by sections, in this is. edition there such way supplemental section, 444a: author seems section to have stated preceding “[The to contradict .own the doctrine party right him, who testifies somewhat against unexpectedly held than is and the courts; more by English strongly courts more that ride of the American is even restricted than courts that Tho of the is exten- English respect. Q. in the case v. B. Collier, discussed of Melhuish 15 sively the different 878, both counsel members of by by is, arrived at court, the conclusion cross- you if he what own witness to you examine your testify contrary to he had had a as what stated in expect, regard right otherwise, occasions, either in the matter former court him and thus refresh witness and give all will, the matter if and at full to set right opportunity But cannot to set before jury. events right you yourself witness, nor for the mere do this discrediting be allowed statements can you prove contradictory STATES. UNITED PUTNAM Opinion Court. but must be restricted other occasions, witness upon other evidence. And the the fact' otherwise proving Lochlibo, rule in the courts same admiralty. prevails ” L. &
14 Jur. 792; Eq. Eng. 645.] is not the seen, as we have This however, opin- language, Red of his editor field, ion of but the comment Greenleaf, mistaken view of what influenced the same was doubtless to which we have Collier, decidéd in Melhuish v. really adverted. already the other cases on a detailed review of
Brevity prevents
hereof. Suffice it
mentioned
the margin
subject previously
all rest
that an examination discloses
they
upon
say
-
out.
if
Indeed,
the mistaken
which we have
idea
pointed
rest are
these cases
necessarily
upon which
-principles
under the
to their
conclusion,
logical
pushed
rule as
refresh
an
overthrow the
general
exception
guise
but also subvert
elementary principles
ing memory,
are the
fact that these
evidence. The
consequences
judicial
of the cases we have
outcome
necessary
legitimate
but
mere abstract
not on
reasoning,
reviewed, depends
a grand jury said: tice mode not a recollection of a It is assisting regular - recollection of his to his before to recur testimony witness If was not true it is then, not true now; the grand jury. now, it is true and can be testified to a then, if it was true fact that had a memo- fact. what Of importance him in before the To randum to aid testifying grand jury? has no to before the ten- what he testified jury ask grand his The fact of his testi- refresh memory. having dency It is an attempt then is not now. fied for former substitute present testimony.” are lucid and of the cogent expressions Equally v. Velott Lewis, Court Pennsylvania Supreme where, a 326, holding Penn. St. not be refreshed to him notes of could witness reading him in a former trial of the cause, same testimony given If the a fact that the court said failed 333): (p. what he had sworn to were previously to recollect enough former notes óf "a as well trial, admit we might it with testimony altogether, abandon original supply “ It an' would be *17 STATES. v. UNITED PUTNAM Opinion Court. of the ' is that the conclusion, therefore, exception Our' made of the the use minutes court action the allowing and that taken, well there was the grand jury Its existence, however, error in this particular. prejudicial under the conviction the second and affects relates .to indictment. count the in the bank.
3. stock ownership Defendants an ob- error in sustaining tenth alleged assignment for defendant the counsel to a question propounded jection witness for the 'cross-examination of prosecution. on direct exam- testified, E. The witness (Charles Byington) to the bank turned over bonds the defendant had ination, thát and that the dollars, thousand value of of the thirty-five par in the interest had a companies defendant paramount cross-examination, the On had issued such bonds. account, his own held, accused large stated referred to, of the of the amount stock companies buying or less said securities. on hand more and had and selling, then asked accused The counsel .for following question:
“Q. stock .of National Granite What of the percentage own first did Mr. Putnam during Bank Exeter State ” of 1893? six months counsel stated On the-government, objection being accused to that his was to show relations and that stock, and his the bank pro- ownership the intent of as bearing upon evidence was pertinent posed securities reference to purchasing 'defendant with and that funds; with the bank’s bank, (cid:127)for dealing (cid:127) all of the owned stock or made- a difference whether he ruled not court did own of it. The govern- any ownership ment had affirmatively opened up. was not cross- evidence stock,” proper that the proposed examination. is within evidence be produced
As the in which order shall the matter sought of the trial court, discretion accused was be elicited on the cross-examination it mani- trial, offered him at stage any subsequent TERM, 1895. T08 *18 Opinion or the Court. error was committed that no by fest prejudicial ruling of. complained seventh
. the court over the count. 4. Jurisdiction twelfth and seventeenth error result assignments taken to refusal of the court to an grant from exception made at close of the for a testimony, defendant’s request, in instruction as to the seventh count. favor, peremptory that all' the acts was based on the This assumption request and rvere enu- under that which convict, count, on, relied Massachusetts, in in the bill of took merated particulars, place of the court. A like were and hence beyond jurisdiction arises from an taken to also charge exception first the the same "We will consider court on subject. since if it erro- taken to of the court, charge exception to reversal, the law to the facts it must lead neously applied have the court refused may peremptory rightly although instruction.
As this count the unlawful ab- stated, heretofore charged the defendant at conversion to his own use and straction monies, credits New Exeter, Hampshire, funds Bank, National Granite State association,” (the of said property funds monies, of which more description particular etc.,) and that unknown;” the said is to jurors and credits furnished to the counsel for the defendant district attorney fifteen checks. bill of covering particulars clear, is at the outset In .these considering assignments.it of the offence the commission may that, charged although in if it was in Massachusetts, completed have begun under Kev. Stat. the court had jurisdiction, New Hampshire offence “That when which any against provides: § in one district and States is completed begun judicial United be deemed to have been committed it should another, determined with, be dealt of, tried, either, inquired if it had in either district the same manner and punished committed therein.” been actually wholly in the which are stated at facts, "Wesummarize length State bill of as follows: The National Granite exceptions, Bank account Bank of Exeter an with National kept STATES. PUTNAM UNITED' Opinion Court. which awas reserve From time Boston, agent.
Redemption the bank were made time Exeter with the deposits to the credit of and were bank, account, Boston placed drawn the bank of on were Exeter the Boston and checks the latter debited to when were the account. bank, and paid all the bill of drawn The checks mentioned particulars of the National Granite State the accused, president Two of these on Boston bank. checks Exeter, Bank of and were were drawn respectively January were both drawn and dated each. These checks $5000 to the American Loan and were made ; Boston payable to the accused, Trust there, *19 company gave Company drafts on Lanier & Winslow, Co., for its them, as consideration which drafts were the accused New York, paid in no enured to the benefit the and the way assigns, proceeds American Loan and Trust Exeter bank. The Company, them in and the sum of checks, Boston, collected payee of. out bank was debited the checks thus Boston by by paid The other referred account of the Exeter bank. checks to the accused, the bill of also by were drawn particulars the Exeter on the between bank, bank, Boston president and and the 6th they 1st day April day May, for thereof a valuable Boston were delivered payees in no enured Exeter which also consideration, way debited to and the amount also and were bank, paid, bank. At the time.' these checks were account of the Exeter were to and when paid by drawn, they presented was a credit to the bank and there ac- it, Boston debited by checks, the bank of Exeter meet so count of adequate them was not to overdraw the the effect .debiting The bill of moreover of the Exeter bank. exceptions account that: recites to defendant’s admitted, exception, subject Evidence of the directors of the that at a to show meeting tending un- held about one Exeter, year alleged bank at prior a vote Boston, the defendant of checks lawful by drawing that no one but of directors the board had been passed draw checks have authority.to the cashier should thereafter TERM, 1895. the account with the reserve that the defend- against agent; ant was at that and acted as clerk of present meeting board.
“ Such a vote was never recorded the directors’ record, and the reserve was never notified of it.” agent also, There was to show that the Boston testimony tending and Exeter banks month twice a their ac- adjusted running count means statements'-which are called in the record “reconciliation sheets.” When these reconciliation sheets came to the Exeter bank in February they accompa- nied with which were the cancelled vouchers, two among . $5000, checks drawn each which had January, above stated. The evidence also paid debited, tended to show that bank at Exeter to the Ameri- owed can Loan Trust a note or. notes Company amounting When the $10,000. cashier of the Exeter bank discovered of the two checks on the reconciliation January debit ' sheets and observed these checks the vouchers re- among turned the Boston bank, asked the ac- (the president for what he had drawn the and the cused) checks, answered had been drawn in order to president pay note or notes of the Exeter bank held American Loan and Trust cashier entered Company. Thereupon books of the bank at Exeter the of the note or notes payment held the American Loan and Trust and settled Company, *20 the reconciliation sheets with the Boston and bank, accord- credited the account of with sum ingly the Boston bank the of the two checks. tend- January There was also testimony to show that neither the cashier or directors the (except knew of until accused) the checks drawn January anything the of the and that receipt sheets, reconciliation February also they of until the checks the knew.nothing April May reconciliation sheets for vouch- with their May, accompanying ers, were received. The evidence also tended to show that when the of these last checks the Boston bank payment was discovered, the defendant an was asked for explanation. He first refused to' then evaded information, give doing.so, iintil about the 24th of when stated directors May, STATES.
PUTNAM UNITED Opinion the of Court. in order been used cheeks had
of the Exeter bank that the Com- into the Electric Railway Leavenworth put money and the Hydraulic Company.” pany the that facts it is evident On the face of the foregoing checks criminal the two January acts from alleged arising such were The is, Massachusetts. question begun essen- was did final which fact, acts there the completed with bank Exeter tial to absorb the credit of the effectually rela- The ? the take bank, Boston Hew place Hampshire creditor. tion the banks debtor and between was of been, Boston, debited checks collected and drawn, having a if there was authority constituted concluded transaction, the draw them. was no authority, On the if there contrary, mere the account were debited to fact bank, of that Exeter bank did not the credit absorb debit. have lawful and authorized check could justified the checks cause Of no course, ratification was essential for such bank, the Boston obtain the successfully money fact of was consummated and concluded obtaining con- here we are out But the same on- the checks. paying the money cerned not with obtained the checks whether absorbed checks Boston but with whether such bank, distinct sepa- credit of the fact was Exeter which bank, whether rate from the and depended payment, the debit made in checks payment consequence then, If, bank. Exeter absorbed the credit of the lawfully was debit checks were and the unauthorized illegal made as the was ratified result of their payment it is clear bank, in Hew the Exeter binding Hampshire by credit that the act which consummated taking was the Exeter bank in Hew was Hampshire, completed was Such therefore within the court. jurisdiction follows: view taken the court in its jury, charge whole “Mr. says Branch, government, representing checks transaction so far as Boston, drawing fraudulent. and the concerned, receiving money He resolur that the bank at a argues adopted meeting checks, draw tion, should providing president *21 TERM, 1895. no and the had that, authority, therefore, president and to draw checks. This had no authority, knew president if he had the it was because so, if find material you becomes did withdraw the funds, and checks draw authority it done have misappro- he may although if he had money, authority and abstracting priating and it would become past checks, completed those draw if he did not have but, will see ; in Massachusetts you act act- his and outside of authority, if he was acting authority, was effect- of the checks while fraudulently, drawing funds from the Bank of Redemption ual in withdrawing and abstract the credit of would not withdraw it Boston, in in in its behalf the Bank of Exeter, in existing the bank Boston, in because notwithstanding drawing Redemption to draw if he had no the Exeter checks, them, authority enforce and still be its would position rights bank credit which had benefits of' its been improperly receive some interfered with unauthorized act unlawfully and and while Boston, money gone misapplied sajne the Exeter bank would be the substan- the credit be enforced. . . in order So, . to give tially might here and enable this you pass upon question, jurisdiction find that the offence was committed in must partly you if which is conceded was there was Massachusetts, so, any here, is, order this court offence, give partly to make this offence order completed partly jurisdiction, here, must find that he in Massachusetts partly you conceived plan, abstracting moneys by but of checks, the transaction means complete making in behalf the credit and effectual by withdrawing existing if the Exeter bank'. So he came into JSlew Hampshire, artful and fraudulent deception misrepresenta- and through intent of with the the’ abstraction tion, making begun bank ro induced the officers of the complete, Massachusetts under, then credit, he is charge surrender guilty (cid:127) he abstracted and unlawfully wilfully alleges and credits Exeter bank.” funds moneys, of. instruction, determined the of this correctness Having STATES. UNITED PUTNAM *22 Opinion of the Court. to ascertain the sustained the
remains whether only- proof of the in the the ascertainment facts court to leaving jury in that is whether the court the charge, say, contemplated made the defend refused the request, rightly peremptory a in can be no doubt ant, to direct his favor. There verdict has that the á national virtute not officii, of bank, president the the account to draw checks necessarily against power of with another bank the bank which is bjr president. kept the of the the statutes powers Indeed, expressly provide a be defined the board of of national bank may president is, it a of Rev. True directors. Stat. 5136. course § of the an officer to awith power particular person, dealing when such act implied power may particular perform Bank, Bank State with law. Merchants' inconsistent was an entire of here-there absence all 604. Now, Wall. on behalf to a of business implying authority as course proof in name the of the draw checks bank. of the president to draw the check did the that the In of fact view power in in the functions of the inhere consequence president, of business the as to a course the absence implying proof of the fact the also in as consideration January power, but establishment, were not drawn at checks banking think was we the proof adequate another city, justify case from and in to take the court jury, refusing whether there was it to them to such determine leaving ratification, checks as subsequent infirmity the fraudulent New obtained representation Hampshire causes one the efficient defendant, absorption debit of the checks. of the credit from Apart resulting view, the court, from which was covered by charge im which rendered other considerations equally there were It cannot be take denied the case from jury. proper called attention that if when the checks January to draw Exeter, of the bank authority president com if such denial had been them had been repudiated, to the Boston bank the municated ability president of the bank to have obtained payment Exeter subsequent of the have existed. As the failure Exeter checks would not TERM, 1895. 7U and in checks, so January bank repudiate doing give bank, the Boston have been notice to consequent upon as to the for which the fraudulent misrepresentation drawn, checks were the January competent consider the relation which this fact bore to the draw jury checks. In other words, of the condition subsequent such that the of evidence was made in Hew misrepresentation to the reason for the drawing Hampshire January with all the other evidence, connection checks, compe to show not tent to the com go jury tending in Hew Hampshire wrongful pletion obtaining *23 and commenced credit, Boston, drawing debiting, but also the initiation Hew checks, of the January Hamp of the credit shire of subse wrongful obtaining completed in Massachusetts and drawing April quently if the from all the checks,- evidence that May jury thought when the misstatements made as to the checks January was to further the subse defraud drawing checks. quent considerations of all the foregoing dispose questions which, and the conclusion results from them is,
presented, that there is error the conviction as to the second count, as to that under the and none seventh count. The sentence n verdict on both consequence imposed guilty was distinct and counts as to each and count, separate concurrent. It follows, if the only therefore, and verdict as to the second be set sentence, count, aside, nevertheless the entire amount of will punishment imposed Under these circumstances, is doubtful undergone. whether the error as to the second committed, should count, be treated as since the effect of prejudicial, reversing trial, as to this new count, will be leave ordering the full term of the sentence in force and to submit existing the accused to another trial on the second from count, if convicted, an additional sentence trial, result. Con- may this situation, we deem that sidering The ends will best he subserved count, justice by affirming and sentence under judgment seventh STATES. v. UNITED
PUTNAM Brown, Fuller, J., Brewer, Opinion: JJ. Dissenting C. count, the second and re- as to the judgment
reversing such below proceedings case to the court manding be in as conformity to that count with reference and it is so ordered. law, Me. Me. dissenting: The Chief Brewer, Justice Justice on the second think the conviction Brown myself
Justice of. our the discretion stand. In count opinion ought exercised leading allowing Court was Circuit properly amounted Dorr, the witness put questions .him overcome temporary more than enabling nothing he had to what said prior reference forgetfulness examination. notes depositions.” certainly previous to avoid- contradiction of doubtful wit- excellent way thus led to the exact words he could ness, always for As we are not an former evidence. yet prepared we must court kind, ruling advance of accept . below as correct.” of. the it is well this branch case In say leaving States, 151 referred to v. S. United Hickory U. Dakota in North Triplett, Court George Supreme N. W. sustaining exception general Rep. does not announced, warrant assumption. rule there concerned United States merely Hickory laid, after foundation had proper party, right involved witness, and in no way his own to contradict the con- without reference to the memory refresh right statements, or whether temporaneousness or written. oral .