State v. Bacon

41 Vt. 526 | Vt. | 1869

The opinion of the court was delivered by

Psout, J.

This case comes into this court from the recorder’s court of the city of Burlington. On the trial in the recorder’s court, the prosecution introduced Josiah Kellogg as a witness, who testified to material facts, and who, during his examination in chief, referred to a memorandum for the purpose of refreshing his recollection. On cross-examination he refused to allow the respondent’s counsel to examine it. The recorder was requested to direct the witness to allow it, but he declined, in effect holding that the respondent was not entitled to examine it for purposes of cross-examination, to which decision the respondent excepted.

On the trial the witness was at liberty to refer to the memorandum on the ground that it aided his memory in respect to the subject of inquiry involved in the prosecution, and to which his testimony related. This is allowed to enable the witness to testify with more precision and accuracy than he otherwise could, and proceeds upon the ground that the memory is often at fault and imperfect. An entry or memorandum, therefore, made by the witness himself, at or near the time of the transaction in question., and before it has in any degree faded from his memory, which is full and complete, so as naturally to suggest and aid the mind in recalling what really transpired, is a strong ground of reliance and belief. It would therefore seem, that it is a legitimate subject of inquiry and examination with reference to a witness referring to entries on the stand .for the purpose of refreshing his recollection, whether the memorandum thus used and referred to really does assist his memory or not. That must depend in some measure upon its character, and that can bo ascertained only by an inspection and cross-examination in respect to it; as when and by whom made, its appearance, genuineness, fullness and faithfulness. Text writers treating the subject seem to entertain this view: “ If the memory of the witness is refreshed by a paper put into his hands, the adverse party may cross-examine the witness upon that paper.” 1 Green. Ev., § 466. “It is always,” says Phillipps, (1 vol., 289,) “and very reasonable when a witness speaks from memoranda, that the counsel should have an opportunity of looking at them, when he is cross-examining the witness;” and Starkie (1 vol., 179,) asserts the same doctrine. He remarks, “ the witness may be cross-examined as to other parts of the entry. * * If the document be produced, the opposite counsel is entitled to cross-examine from it.” See also Part 1 Cowen, and Hill’s Notes, (2d ed.) 757 ; Rex v. Ramsden, 12 C. L. E., 758. The view as presented by these authorities is alone consistent with the party’s right to cross-examine the witness upon whose credibility the question in issue somewhat depends, and which, it is said, constitutes a “ strong test, both of the ability and willingness of the witness to declare the truth.” In no other way can his accuracy and recollection be ascertained and tested, which in all cases are proper matters of inquiry with a view of weighing his evidence; and the range of inquiry is open to this extent. And a witness can not deprive a party of this right, or shield himself from the obligation of disclosing the whole truth to this end, or refuse the production and examination of a memorandum which is in court, and upon which he relies and refers, for the reason disclosed by this case ; certainly not, unless it appears to the court that he had a reasonable ground of belief that he would subject himself to personal injury in consequence of producing and allowing an examination of it. This decision of the recorder was therefore incorrect.

Another question is made in the case, relating to'the refusal of the court to direct the prosecuting attorney to furnish the respondent, before pleading, a specification of offenses he proposed to prove. The complaint charges the respondent in the form provided by the act relating to the traffic, with selling, furnishing and giving away intoxicating liquor at divers times. The request was for a specification wherein should be set forth specifically each offense proposed to be proved on the trial; what the offense was, whether selling, furnishing or giving away, when and where committed, and to whom the liquor was sold, furnished or given away. The attorney, without any direction from the court, furnished a specification, but did not therein set forth the particulars required by the request, except with respect to the sales to the witness Kellogg, and limited the prosecution to proof of thirty offenses of different kinds, committed between June 1, 1867, and September 13, 1867. From the evidence the court found the respondent guilty “ of four third offenses,” as it is expressed in the record, and the prosecution having proved two former convictions, sentenced him to three months imprisonment, and to pay a fine of -eighty dollars and costs of prosecution. The complaint, as observed, is in the general form provided by the act creating the effense, and under it proof of an unlimited number of offenses of the character charged was admissible, and, as if they had been set forth and charged in as many separate and distinct counts. It was undoubtedly in consequence of the general form of charging the offense, and to prevent possible injustice in the administration ©f the law, that the court in State v. Conlin, 27 Vt., 319, and in State v. Freeman, 27 Vt., 525, held that the accused was entitled to a specification of offenses. But this is always, in prosecutions of this character, a matter of discretion with the court, to be exorcised with reference to the circumstances of the case; and in this case it not being shown that the attorney could be more specific hr the specification he did furnish, or that the respondent was misled, or in any way prejudiced, wo think there is no error in this respect.

The constitutional question arising on the refusal of the court to allow the respondent a trial by jury is the point in judgment in State v. Peterson, ante, and which it is unnecessary to consider in this case. The result is, the judgment of the recorder’s court is reversed, and cause remanded.