*1 v. Rutе. Syllabus. the part of the county attorney not “good cause to the con-
trary/’ within the meaning of that phrase as used in said sec- tion. The bond mentioned in the county attorney’s reply was for the appearance of the defendant at the next term of said court, and we know of no law that requires the defendant or his attorneys to call the county attorney’s attention to the dere- liction of the committing magistrate. The filing of the informa- tion in the trial court could not be affected by the condition of the court fund.
We are constrained to think that the reply of the county attorney to the motion to dismiss was in effect a confession that the motion was well founded. It follows that the judgment should be reversed, and the court below directed to dismiss the prosecution and discharge the defendant.
ARMSTRONG, P. J., and FURMAN, J., concur.
STATE v. M. RULE.
No. A-2274. Filed December 19, 1914. (144 807.) Pac. 1. EVIDENCE —Other Offenses—Res Gestae. general 'As a rule, evi- dence of other offenses, though of the same nature, is nоt ad- missible for of showing that the defendant is guilty particular offense charged. To this rule, however, there are well-settled exceptions. applicable Those pre- sented on the record in this case are as follows: (a) Evidence of other offenses similar to that charged is relevant and admissible, when it prove tends to some element of the one charged, as when it shows or tends to guilty show knowledge or intent in the commission of the offense charged. (b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because proves or .teuds to prove him guilty of another and distinct offense. (c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or con- nected as to form a gestae. of the res (d) Evidence of other offenses is competent specific offense charged when it tends to systematic establish a plan schеme or embracing the commission of two or more of- fenses so related to each other of one tends to estab- lish the other, or to connect the defendant with the commission charged. offense n
Syllabus. aof filing charging information, an support In (e) such state, defraud intent claim false Auditor the State obtain did pretense false is admissible claim, evidence amount warrant tending thing, same did instances charged offense intent, knowledge guilty show state. defraud cheat scheme plan or part of awas *2 Purpose of —Instruction. Evidence —Statement of TRIAL —Offer Where 2. defendant that the tending to offered is evidence is on he which for that than other offense an has committed attorney should prosecuting the that requires practice good trial, and, if it offered, evidence which the for purpose the state the instruct should court trial the purpose, that for admissible jury it. may consider which to the G-estae Admissibility—Res Evidence — Doсumentary WITNESSES — 3. in information an trial of the On Interest. Against —Admission warrant, a state larceny of the charging first counts, the two to intent with claim a false filing of the charging second the defendant the pretense false by such that state, and the defraud the warrant, said Auditor State the from obtain did print- legislative do to contract a secured defendant that showed ing, said the do Company to Printing W. the employed against claims defendant to delivered company, that said printing, warrant the delivered, that printing of amount the state the in claims, these of upon one defendant by the secured was question Journal House from raised of which item ap- also page. a $1.10 pages at to page a $1.10 pages at against pending were informations similar three that peared P.W. the of president The trial. the of time the at defendant Go. testified out made were state the against claims the that were therein entries Co.; that the P.W. the of books the from by the by witness of business course usual the in made cor- were entries the knew he employee; that by an secretary and recollec- independent present no- he had made; that when rect the to delivered claims the inor books entries the tion were entries the when that secretary testified The defendant. claim relating to the entries the correct; that they were made upon by made were obtained was warrant the entries the some that testified witness, witness Another entries Co., and the P.W. the employee as an him by secre- president the assisted he correct; so tary done, and printing pages the count company During made. correct wore entries knows therein the entries book witness each examination book use To by state. evidence offered was sustained court The objected. defendant evidence president offered. excluded objections, book without stated recalled P. Co. W. asked then He wаs therein. stated facts state not could he amount state the memory and refresh book refer objection, defendant’s which, on done, legislative reserved state do. by the permitted not Held: court. rulings of the objections v. Rule. Statement of Facts. (a) That said book, with the entries therein, was admissible, only as independent evidence of facts forming gestae, res but also as declarations or admissions made against his interest; and further that, held on the testimony of witnesses the entries therein were made in the usual course business, and known them to have been correct when made, said book with entries therein was competent and admissible as evidence of the facts therein stated. Held, (b) further, that, whether the witness retained present independent recollection of the facts therein stated not, the witness had right to refresh his memory consulting on the witness stand the entries book, said and the same
was also admissible as a means of verification or confirmation of what the witness stated from memory. (Syllabus Court.)
Appeal District Court, Oklahoma Cou'nty;
John J. Carney, Judge. M. Rule was acquitted of grand larceny and obtaining a warrant under pretenses, false and the State appeals on ques- tions reserved. Questions answered in opinion.
This case comes to this court under the third subdivision of section Raws, Rev. upon exceptions taken by the prosecut- ing attorney to certain rulings of the court," trial excluding evi- dence offered by the state.
The facts of case, the as shown by the record, are as fol- lows: On the 5th day of December, 1913, the county attorney of Oklahoma county filed an information in the district court of said county, containing two counts. In the first count the defend- ant was charged with the crime of grand larceny committed in taking by fraud and stealth a certain state warrant, described in the information, payable in the sum $1,310.20. of In the second count the defendant was charged with the crime of the obtaining said warrant under pretenses. false On January 1914, the case proceeded to trial.
It appears that on the 13th day of January, 1911, the Third Legislature of the state of Oklahoma was in session, and, resolutions of the House and Senate, the standing committees on legislative printing were instructed to let a contract for the legislative printing of the 1911 session of the Legislature. Bids were received for the printing, among which was the bid of the 11 Oklahoma Facts. of
Statement committees the determined It was Rule. defendant, M. the to agreeably defendant, and the to contract the award’ to of Board matters, the such in prevailing regulations and laws enter to directed was Oklahoma of state the of Affairs Public legislative the for defendant the with contract written into was contract 1911, a January, of day 13th said on and printing, de- the and Affairs Public of Board the between into entered separate parts, two in prepared being fendant; the contract Senate the for one and printing House the for contracts, one em- defendant named. therein prices certain at printing, do to City of Company Printing the Warden ployed entered contract verbal upon.by agreed prices at printing tlie Company, Printing the Warden and defendant the between into per- and contract of this discharge the upon entered and defendant. the for services certain formed time from time, but stated any at made Payments bills its rendered company the progressed; work time, the to Legislature the to delivered of amount the showing having of the For statement. previous last the since ob- Company form, the Warden regular in presented bills its are blanks the Affairs Public of Board the tained supplies materials for bills presenting in use prescribed out, it was made was a bill instance, when In each state. vouchers, blank these Company Printing Warden number showed voucher Each triplicate. price contract printing, of clаss separate each of pages bill; each items amount aggregate page, per copies tlie one retaining Company Printing Warden with contract under defendant with settlement its use its remaining delivering company, certified properly being which, after vouchers, copies two State regulations according himby sworn Af- Public Board office office Auditor’s Board with copy him, -one filed fairs, Auditor. the copy Affairs, and Public vouchers issued warrant Board filed with vouchers comparison and, upon filed, *4 241 v. Ruee. State of Facts. Statement retained copy with the Auditor the State Affairs Public that, after ascertained it was Company, Printing Warden by the pur- items defendant, the triplicates two delivery printed House pages number Journals show porting delivered Company Printing the Warden as made page a $1.10 at pages from raised defendant said for amount aggregate that page; at $1.10 $781, that $310.20 from raised House Journals that $1,310.20, and $839.40 raised had been amount gross and filed raised voucher said presented defendant dupli- Affairs Public Board the State with thereof copy for allowed Auditor; the claim State with the copy cate voucher, $1,310.20; and face shown amount his warrant received way warrant upon which voucher copy A amount. fig- words information out is set issued as follows:
ures Original. 10806. No. Claim Contract No.
Order 7th, 1911. March Rule, Address M. in Account Oklahoma The State City, Okla. House, Fund Legislative Department follows: supplies For Contg. Leg. $1,310.20. Correct Found Checked D. Elkins by R. Received Remark by (Reed) Approved Crossett. A. G. O.K. Whitman, Chairman.
F.S. Durant,
A.W. House.
Speaker Farris, Printer. W. Giles 11 Oklahoma
Statement Facts. The undersigned, upon oath doth depose and say that the *5 above account just, true and correct and law, according to and to the provisions the under contract which the items mentioned furnished; therein were that the materials and supplies were fur- nished as therein charged and that the amount claimed after allowing just all credits, is wholly unpaid, and'that I full have knowledgе of the facts herein set and that forth I duly au- am. thorized to make this affidavit. . M. Rule, Claimant.
Subscribed and sworn to before me this the 8th day of March, Libby 1911. Goldman, Public. Notary
My commission expires 18, January 1914. Checked and approved for-by B., W. N. Jr. Check and approved $1,310.20 for by-. Audited and approved $1,310.20 for this the 1th day of March, 1911.
State Board oe Affairs, Public E. B. Howard, Chairman. Eugene Morris. E. presented defendant to the State Auditor raised vouchers and drew three other warrants for printing done by the Warden Printing Company under the same contract and surrounded all respects by the same circumstances. Informations filed by the county attorney on each of the last named three transac- tions similar to the information filed in this case. These cases were numbered on the calendar of the court, district respec- 3612, tively, and and were- pending when the de- fendant went to trial in case numbered 3619—the case upon which this appeal is based. After the jury had been im- duly paneled sworn, and counsel for the state suggested the to court the settlement of the legal question which it was claimed was involved in the case and the determination which, the court, would materially influence and affect the opening, state- ment of the prosecuting attorney to the jury, and, for the purpose of determining the question, it was deemed advisable by v. Rute. Facts.
Statement until be excused parties, jury the court, as the well the prose- the stated then presented. could be the question the the consideration that the attorney cuting this: court was proposed right, claimed prosecutor “That the de- intent that, bearing jury, state charged acts committed he time when at fendant showing evidence introduce would information, prosecutor between part on the other transactions transaction, pro- same out arising parties same to, be acts other these jury state posed intent criminal showing the sole 'offered committed time at the defendant case.” in this information charged acts statement that, opening making held court con- should of.evidence, no statement introduction funds, state’s misappropriations purported cerning ruling admitted. not be would same alleged what constitutes excepted *6 of the trial. in the error material abe in error plaintiff state- opening his attorney prosecuting When state- make then elected ment, counsel show, ma- would what defense ment as follows: part terial statements Rule’s Mr. that show “Now, propose we deliv- actually was correct; the property that account
this' testi- by -the but testimony own by our alone there —not ered mony Now, why themselves. witnesses —there state’s offi- delivered claim, prepared mean the bill—I case, state’s of the ais Now, this House. cers develop will D.R. by Elkins—that gentlemen—received Auditor, I mean House—not Auditor he was that Elkins, D.R. by prove willWe House. man property by which assistant testimony assistant—their first —the his delivered, counted this- property made—that audit was here, notation that this copy, by copy page by page audit careful result of Elkins,’ is the R. D. ‘Received develop It will department. particular his Mr. Elkins House, this clerk chief A. Crosscut G. of G. the O.K. will be found prosecution) basis (the bill claim, Judge actual have like I would Crosscut. A. Criminai, Reports. 11 Oklahoma Statement of Faets. Thompson, in this case. (Judge Thompson hands to Mr. Ready.) Mr. Ready (continuing): Here is the original bill or claim upon which this prosecution is based. ‘Received R. D. Elk- ins.’ Now will develop that G. A. Crosscut was chief clerk
of the House. You see G. A. Crosscut’s signature and his O.K. on that claim. G. A. Crosscut, if necessary, will testify before you as to what was done—what investigation Now, he made. G. A. will here, appear .Crosscut ánd it will appear testimony that he made a thorough investigation of this print- ing; that he was satisfied that this bill was proper in pre- its sentation, for the amount of -printing delivered for the' price charged. It will develop during trial of this case that Mt\ S. F. Whitley at that time was a member of the House of Representatives; that he had position of chairman of the committee of public printing; that he made certain investigations and O.K.’d this bill: F. Whitley, ‘S. Chairman Committee of Public Printing.’ We will that S. F. Whitman signed that. It will develop further —a matter you already are aware of—that Mr. W. A. Durant was the Speaker of the Third Legislature. ture: It will develop in the proof this is his signa- Durant, ‘W. A. Speaker House.’ You see on this particular bill, gentlemen, checked and correct, $1,- found 310.20: ‘Giles Farris, W. State Printer.’ develop will proof that Mr. I-Iem-y McGill, who was at that time Assistant Printer, signed that name. It will develop his testi- mony that he personally checked each page and copy of this printing. It may develop that he checked this together with Mr. W. M. Brown, Jr., the chief clerk of the State Board of Affairs; that Mr. Brown will testify he made this investigation, checking accurately each page of done, shown this bill. You will see on this bill checked and approved for $1,310.20, B., W. M. It will develop proof that Mr. Jr. W. B.,M. Jr., is Brown, Mr. W. M. Jr., of the State Board of Affairs. Eugene this On same bill you will find B. E. Howard and Morris; those are the signatures of those two gentle- men who time, were at that and I think are time, at this mem- bers of the State Board of Affairs. This contract was origi- nally entered into between Mr. Rule and this State Board of Affairs. It will develop Rule, that Mr. after the approval claim, called at the State Auditor’s office and inquired if *7 there were any warrants him; there for that there were war- there; rants that they were delivered to him and upon the war- rant calendar presence of the State Auditor or his as- sistant, M. Rule signed for those warrants. Now, gentle- Rule.
Statement of Facts. men I mean at this jury, time only give you to a gen- eral idea to defendant expects what the to case this offenses, are here charged —we those two two grand larceny of warrants, thаt the proof will develop that we signed for and 'for and receipted the obtaining of this property —of these under particular warrants the alleged pretenses false that we did not deliver this property to the state Legislature, al- though by every O.K.’d officer in of the charge department to was delivered and by every department this of the state ” which this claim affects
It further appears that in the progress of the trial it was officers, shown managers, employees of the Warden Printing Company that the company kept, course regular business, books, of its a set of transactions, its showing and that in said book there was a record of all matter pertaining to printing done under the case; contract alluded this said records showed the date of the actual printing, amount of printing, all necessary information. The books were offered in evidence for the purpose of proving the facts contained in them, and, on objection defendant, they were ex- cluded, and the question was reserved by the state for con- sideration of this court. n case,
When the state rested its the defendant moved the jury court to advise the to return a verdict of not guilty. There- court, tjie without the state requiring to elect upon which stand, count it would instructed the jury as follows: jury, you “Gentlemen now are advised by the court present under the state of the case it is opinion this court that you advice of should return a verdict of not this defendant. I against will state guilty you advice are not you of the court absolutely compelled follow, but you are advised that shall you go your room, jury select foreman, number as your you there may, if you desire, find not guilty, the defendant or guilty, or disagree, think proper you gentlemen according your individual opinion. But are advised you opinion that it is the and judg- ment of this court that the defendant is guilty you return a verdict accordingly.” should
Opinion of the Court. defendant finding their vеrdict jury returned J. discharging judgment rendered M. Rule not The court guilty. defendant. reserved'by An appeal perfected upon questions 1914, a May, day 26th of state in this court on the by filing in error with case-made. petition Atty., Y. Asst. Co. Atty., Thompson, K. Co. H. Pope,
D. for the State. Cruce, Stuart, and McAdams Cruce & Ready, &
Vaught Haskell, in error. defendant for & brief
DOYLE, error their plaintiff Counsel for state: present the state desires to “The which questions follows: in this case are as for its consideration intent, can of criminal purpose showing For the “First. between transactions, arising in character and similar other same in evidence transactions, introduced the same be and out of parties a criminal cause? in the trial of firm, books, corporation kept by person, Are “Second. course, verified, business, properly after being of usual in the stated, in facts therein proof in evidence receivable cause? a criminal trial of cause, criminal does the law for- trial of a In the “Third. witness, authentication, aby proper after book the use bid memory?” rеfreshing purpose questions presented* and answer consider
willWe are set forth. order in offenses, rule; though of other evidence As a general nature, showing admissible for is not same particular offense charged. is guilty person is that no shall be convicted of for the rule reason he is of another. guilty To by proving an offense however, exceptions, are which are well stated in rule, there as follows: part are They Cyc. not apply rule does where the evidence an- “The general directly prove tends defendant's guilt crime which is relevant to defendant’s guilt charged. -rendered crime is Evidence it proves inadmissible because or tends to prove not v. Rule.
Opinion of the Court. happens often him of another and distinct crime. guilty connected that inseparably distinct are so that two offenses other, involves necessarily proving of one can proving evidence it prosecution such a case on а it the other. proves excluded because also Evidence committed is admissible if it was another and distinct crime the res part and forms of the same transaction gestae guilty such that knowl- “Where the nature of the crime is that at is admissible to proved, must be
edge another time and or accused committed place not too remote the charged.” a crime similar to attempted to commit rele- charged other crimes similar to that “Evidence particular tends show a vant and admissible when criminal Any competent, shows or crime charged. necessary intent which is to constitute *9 intent is particular tends to proves prove fact or incidentally proves and cannot excluded it be because a certain crime. is whether an Where the independent accidental, show that accused evidence to act was intentional or relevant to show acts before is intentionally committed similar intent.” a or of charged part plan system the crime is of “Where action, crimes near it in evidence of other
criminal time show the knowl- character is relevant admissible to of similar edge and that act charged intent the accused of This rule is often of accident or inadvertence. not the result a series of crime is one of swindles charged where the applied or other intent for the purpose a fraudulent involving crimes 411 inclusive.) 406 to Cyc. pages. this intent.” '(12 of showing Prof. Says. Wigmore: intent, a criminal volition generic notion of or prove “To
willfulness, the various mental states ac- non-innocent including acts, an en- employed criminal there is different companying here is thought. argument purely of process different tirely doctrine of chances—the instinc- of view of the point which eliminates ele- logical process tive of recognition re- intent instances of same by multiplying innocent ment of explain element cannоt perceived until is that this them sult it test, accurate and without at- formulating any all. Without certainty numerous instances to secure absolute tempting inference, and instinctive applies rough process mind this unusual and abnormal element namely, might an reasoning, instance, in but the oftener similar in- present be perhaps the Court. results, likely less is similar stances occur with element short, abnormal. * * * In explanation of them. to be the true likely abnormal usually through occur results do not similar shape causes; (here a result the recurrence of similar in instance) each tends inadvertence or self-defense with act) (increasingly an unlawful faith good accident or or negative state, (provision- establish mental and tends to innocent or other normal, least, of the presence not though certainly) ally, at act; the force criminal, such an accompanying intent e., i. each kind offense vary instance will each additional repеated, act could within that the probability according circumstances, an innocent under given a limited time * * * peculiar that the feature of It will be seen intent. done, itself is assumed to be is that the act process conceded, jury is or because usually) it (as —either because point proceed- from this consider the evidence instructed not to are have done and are find the act to until view a marked explains the intent. what determine ing courts, namely, a disinclination rulings feature scheme as a or purpose general of common any feature insist on used. It is evidentially acts for the other necessary requirement discover a scheme or to general to look for necessary here acts; dis- attempt merely in all the system united prior and the question; the act accompanying the intent cover acts, scheme clearly of a whether other similar doing of ques- the act. possibility not, reducing is useful Wig- seс. (Vol. intent.” done with innocent tion Evidence.) more on similar evidence of other transac- opinion are of We afterwards, contract, whether before or same under the tions issue, made inadmissible and was not was relevant to tend to fact that would reason of the in the information. charged than that another offense guilty knowl- proving guilty admissible for clearly It was *10 the act committed. charged intent with which or the edge, defendant a continuous series of were acts of They contract, under the and party the same same with transactions character as the act for the same which was precisely were tried, they were so connected that formed a part being part a of the entire transaction un- res were gestae, contract to do the legislative printing der the defendant’s v. Rule. Statu the Court. as settled may regarded be Representatives.
the House of connected with the that where the is so charged offense entire of an part as to form sought proved offenses be transaction, show the may the latter given evidence of evidence offered was character of the former. We think the stated exceptions admissible under first three of the clearly ad- It seems evidence offered was also above. to us that the above, pur- under fourth stated for the exception missible systematic or or pose pre-existing design, scheme proving and defraud the plan, on the defendant to cheat state, act particular charged. included the of the doing State,
In the case of Cr. Koontz Okla. Pac. court said: this “Generally competent evidence of other crimes is speaking, the scheme or crime establish a specific charged tends to commission plan, embracing common more of two or crimes related tends to each other that of one other, defendant the com- to estаblish to connect the mission of the crime charged.” upon which is raised controlling importance Print- appeal admissibility is the of the books of Warden state, Co., the de- as offered in evidence
ing objections fendant’s excluded the trial court. required legisla- contract that on each hundred each of the copies
tive he should furnish two day Calendar, all copies hundred House two Journal printed. bills ordered the War- R. testified that he was president AVarden S. the War- employed den that the defendant Printing Company, legislative printing required den to do the Printing Company state, Printing and the Warden under his contract with the vouchers for said did the same. That the bills or Company delivered de- triplicate made out in fendant, copy that one was retained settlement with except defendant; were made out from books these bills That the entries the books Company. the Warden Printing Warden, Mrs. secretary witness and who was *11 Oiclahoma
Opinion the Court. of ah by and Cоmpany, Printing and treasurer of the Warden in the made Canuth; entries were D. that the employee, V. in made were the entries That when business. regular course of checked and pages counted the original of entries he book or vouchers the claims entry; a correct that up and made them correctly were legislative the defendant for furnished printed pages of the number in accordance with made out independent had no in That the entries this book. by shown bills, calen- journals, number of House recollection the in forth as set in each dars, contained pages the number of or the settled with the defendant so That claims furnished. made the claims basis Printing Company Warden by company. him the out and delivered to which, plfered the book in evidence The state then H.” The de- identification, marked .was “Exhibit purpose of in the book evidence the admission of objection to fendant’s part in that state offered Thereupon thе sustained. The made witness. the entries as containing of the book sustained. objection was defendant’s and treasurer secretary R. Warden testified that Mrs. S. bookkeeping supervision general she company the book marked Third that Legislature; session of during entries; the entries that original PI” was a book of “Exhibit claim in pages question number indicating counted witness; made the she that when she entries the number of That entry pages. a correct pages assisted her. That before the and Mr. Carruth Mr. Warden she counted pages, the defendant claims were delivered to them, compared them with again checked them back listed correct; she verified claim and found them each the entries them,” as we had just gone over be sure “to machine. inde- adding added the total on That and then book, entries, without the use of the witness or pendent any tell number of pages charged not be able to would claims. of the part D. of the entries in V. Carruth testified the book him as employee IT” were made an of the Warden “Exhibit Ruee. Court. copies take two always he would Printing Company. That tracer, them each or calendar journal place bill order, and an the number of envelope containing which was she made out which was filed to to Mrs. Warden when go he counted book claims. That he made entries calendar, bill, journal, the number of each pages correct. absolutely entries so made him were contain- the book The state offered in evidence made out. the entries which the ing claim defendant's thereto. objection sustained the *12 PI.” The court state offered in evidence the book again “Exhibit same. The sustained the and excluded the objection defendant’s court below seems have excluded the evidence offered hearsay, that it was and. that its admission would ground the violate the defendant’s to be confronted with right constitutional the witnesses him. agаinst
The learned counsel the defendant in their con- brief : tend identified the though books of Warden Print- “Even the and as in Company, kept the course of ing having regular
business, they were not evidence in this original admissible third proceeding, party, they kept by the reason were books super- and over which the defendant had no control or vision, and for the further their introduction would reason deprived have the defendant of his constitutional to be con- right the him.” against fronted with witnesses . obviously We think that these contentions are untenable. clearly PI” is established competency of book “Exhibit admitted on the same testimony, it should have been evidence, material documentary relevant and ground any is admitted. proved competent, be that the defendant confided entire business' appears under contract doing legislative printing with The book contained Printing Company.
state to Warden un- statement of the items done showing detailed state, contract entries in der the defendant’s which testified to correct made them. persons were be who order, These entries show the number of each the date of the the Court.. journals calendars and House legislative day for which journal. calendar and of each printed, pages the number of pages number of printed, the number of House bills Also bill, bill, and date House number of of each official each delivery order. the Warden settled with It also that the defendant appears in this book. to the entries Company according Printing done, delivery printing, in is sufficient itself to show in question warrant the state. If he had secured the voucher, Auditor, se- a raised claim or upon the State or vouchers upon cured other warrants other raised claims the Warden employee, settled with his or subsequently agent as originally the claims or vouchers Company, upon Printing Com- Printing made out and delivered to him the Warden knew necessarily follow almоst that the pany, would raised and was false claim had been or voucher warrant for the from the Auditor the when obtained amount of the claim. rule is in section Rev. statutory found Raws provides: which evidence, may account admitted in books of “Entries it is made the oath appear by person who correct, that such entries are and were made at or the entries near the relate, time the transaction to or entries, person who made the hand-writing county, upon proof his death absence from the or in case of usual course that same made in the of business.”
We are all entries the book offered opinion were admis- printing, relating legislative evidence House sible, forming of facts only independent not evidence declarations or admissions gestae, of the res but also as certainly interest. know the defendant We against evidence, re- decision, principle rule of or established no in conneс- such offered quires the exclusion of evidence when entries persons who testimony tion with therein, provision, The constitutional correct. 28, accused the to be Rights, giving right Bill of Section him, apply does not against the witnesses confronted with Rule. Opinion of the Court.
proof of facts in their nature essentially and purely documentary. In bar, the case at persons who made the entries were pro- duced witnesses, and the book was identified, properly the defendant had the opportunity to cross-examine said wit- nesses. For this reason no question of the defendant’s consti- tutional right to be confronted with the witnesses him against arises in this case.
In the case of Curtis v. Bradley, 99, 65 Conn. 591, 31 Atl. 28 R. A. L. 48 Am. St. Rep. the Connecticut Supreme Court of say: Errors
“Regal evidence is not confined to the human voice or oral testimony; it includes every tangible object capable of making a statement, truthful such evidence being roughly classified as documentary evidence. In oral evidence the witness is the man who speaks; in documentary evidence the witness is’ the thing that speaks. In either case the witness must be e., competent,—i. must be deemed competent to make a truthful statement. And either case the competency of the witness must be proved be- fore the admittéd; the difference being that in oral evidence the competency proved by a legal presumption, and in documentary evidence the competency must be proved by actual and the testimony, further difference that in oral evi- dence the credit witness is tested by his own cross-examina- tion, while in documentary evidence the credit of the- witness is tested by the cross-examination of those who must be called its competency." It appears that after the court sustained objection
the introduction of the books of Warden Printing Company as evidence of what they contained, S. R. Warden was re called and if asked he could state from memory the dates of printing, and the number of pages of date, each he said that he could not. He was then asked whether or not he could refer books refreshing his memory there from state the dates and the amount of printing actually done date, on each and he said that he could. He was then subjected to cross-examination concerning what memory had, and it appears conclusively from the testimony of the witnessJ without the aid of the books he could facts, state but that with the aid the books he could correctly state the *14 REPORTS. CRIMINAL OKLAHOMA Couv®. re to the books to refer to asked then He was sought. facts legislative of House the amount and state memory his fresh he was objection, which, defendant’s done, on the raises court ruling to do. by permitted refresh to aof witness right presented. question the third memorandum stand the witness on consulting memory by
his made correctly have been to witness to the or entries known rule of necessary and transaction, is a settled at the time evidence. Criminal Evi- treatise on in his Air. Underhill by stated
As 217: sec. dence, page those speak to permitted will be generally “A witness recol- knowledge personal within his are only facts is weak or at if it memory, his refresh may He aid or lection. memo- writing a or the witness stand on fault, consulting if, person, by another himself or
randum, made whether therein, he has read what and because it examining after he is thus renewed recollection his own testify to able be, ever need it nor generally, is not The memorandum revived. competent materiality, relevancy, or its Hence evidence. read as considered; need be nor not be should examine may they it seems though jury, to could have the witness if recollection see it to con- to allowed be trial will in a criminal A witness refreshed. cir- following under the memory his refresh to writing sult a recol- independent no he, retaining while First. If cumstances: hаving transcribed, remembers facts lection of memorandum, another, remem- if he or, it was when it was it, he knew that, saw it, he seen having bers writings which includes of cases class The other correct. witness before, whose and of seen having remember does not iden- but, recollection, able being present no he has contents tify per- some other or his own handwriting consulting he is able genuine, it to be son, knowing genu- in -its confidence and his its aid and because writing, knowledge, his own independently, ineness, to swear recog- witness subscribing a example, Suppose, facts. His clause of will. an attestation signature nizes facts of testify able to may refreshed, he memory the testator subscription publication acknowledgment have circumstances, may though accompanying and to no class first regard In thereof. memory independent Rule. Opinion of the Court. that,
of writings, circumstances, it is clear under certain are admissible as independent evidencе part of forming gestae!’ res It clearly appears from the this is not a testimony case of the use of a book or the entries mere therein purpose of witness, case refreshing memory of a but it is a of a witness who does not profess to be able from mem- repeat *15 ory therein, the facts stated but who testifies the entries were made at the time of the transaction as it and that progressed, he knows that such-entries were correct made. We think when that it is immaterial whether the witness retained a in- present dependent not, recollection of the facts therein stated or witness had right to refresh his memory by referring therein, the entries and the book the entries therein also admissible as a means of verification or confirmation of what the witness stated from memory. In Insurance Weides, 380, v. Company 81 (14 U. Wal.) S. 894,
20 it is said: L. Ed. far “How not papers, se, evidence per but proved to have fact, been true statements made, at the time they were are in admissible connection with the aof witness testimony who them, made has been a frequent subject inquiry, and it has many times been decided that are they received. be And why they should not be? Quantities and values are retained the memory If, with great difficulty. at the time when an entry of aggregate quantities made, or values was the witness knew correct, it was it is hard to see itwhy is not at least as reliable as is the memory of the witness.” The case of Iowa, 191, State v. 100 Brady, 69 N. W. 290, 560, 62 Am. Rep. 36 St. was an L. R. A. indict ment against an overseer of the poor a false claim filing for furnishing transportation to a poor person with intent to defraud, and by such false pretense the defendant did obtain from Auditor a warrant for the amount of the claim. Supreme Court of Iowa held that memoranda made at the time sale of tickets at the office of a railroad com pany, for a given period, although account, are, not books of authenticated, when properly admissible in evidence for the purpose of showing when and what tickets were sold. Court.
Opinion of the court, said: Deemer, opinion delivering J., admitting erred the lower court is contended “It city at sales daily showing the ticket office records the ques- claim presents This 1893. year during the of Ottumwa these conceded must be case. doubt of most tion contem- the statute such as account are not books records caused made and sense, statements are, expert ain They plates. to be them, what and are identified who the witness by the witnesses ‘memoranda’ be termed properly might admis- these memoranda Are the transaction. at the time sible who the witnesses used evidence, can be recollection? aid to their as an simply them produced the courts answers different widely been given has question rule common-law The old England. country and admissible; that were not memoranda that such read seemed to they foundаtion after proper the witness could be recollection had no the witness laid, though even doctrine, The modern them. having read after matters even are that such documents to be country, seems in this at least admissible the useless through go evidence, will and that court document read witness having ceremony recollection, ex- present no he had a fact of relating hold- The previous made. correct knew it was cept that he in entire seem to be do not the of this ings & St. M. Chicago, Taylor v. See question. accord Iowa, Novak, 97 v. 431; State Bank Iowa, City Co., Iowa P. R. attempt- Iowa, 536. 41 think Without 186; Zangs, Adae 66 N. W. *16 that say to it sufficient cases, these we to reconcile ing American— called the modern—so apply to are constrained we admissible. the records case, hold that and to this rule Milwaukee Chicago, of the agent the showed The evidence kept railroads a Central Iowa Wabash and the Paul & St. respec- the over his sold at office tickets of the daily record to do required he represented; he lines which tive kept he companies; the several regulation rule or aby March as in evidence ‘Exhibit introduced record the 8/ sta- stated what 10, record to 1S94. This 1893, 24, January to The agent the sale. sold, day and the were Burlington tickets the tions he testified Railroad Quincy & Chicago, the of used line, there his which tickets over selling a machine ticket, when a printed the same machine This of paper. pieces two printed and at time paper, for, piece a called This the ticket sold. effect, duplicate a was, stub, which a 11—-s
Cr. Rute. Opinion of the Court. stub was sent into main company, office of railway a record of sales. He also testified machine prints that this
register at the same time. The witness this record presented by 1893, made before referred the machine for the year upon the stubs printed to, and it was introduced in evidenсe. This same witness was also agent for the Rock Island Railroad Company, he testified that personally kept a record of the tickets sold over this road during year and that the record was correctly kept. record was also introduced in evidence. Now, is clear from this statement of the case that none of these witnesses could remember the by number of tickets sold them during year, whole and it would be absolutely impos sible for them to remember with certainty the places to which they sold tickets on any particular day. They would to have rely upon that records, these identified. It is conceded them, they might rely upon and might have read from them the jury, although they may have been able to re member a single sale. To use the language J., of Hamersley, in the case of Curtis Bradley, v. in from the Supreme Court of Connecticut, reported 65 Conn. R. A. Tt 143: L. seems us far, to be pressing use of a fiction legal too court to permit the statemеnt such paper to be evidence, read in sion as proof while that the holding law forbids admis paper evidence of the which is original only words, of the statement admitted. In other it would read, seem as if in necessity admitting paper to be so the court of paper evidence, therefore, admitted courts, concurrent authority of all paper is itself admis judge sible.’ that learned further said: ‘All courts recognize hold that right, rightly used thing to refresh the memory is not reason of such use itself admissible as evi dence. application When of the rule a document like in question was presented to the witness and absolutely memory, failed freshing refresh his its exclusion as a means of re memory became'imperative; but the evidence.of document was so clearly essential to a fair just trial that its use in some form imperative. seemed also Instead of treat ing paper competent evidence, as itself documentary resort fiction; a palpable the paper is read by the wit ness, and the the. witness knowledge once had of the facts paper imputed stated him as still and the existing, paper received as the statement testimony of the-wit ness, itself, paper only and the capable witness of mak statement, is excluded. The use ing of such a fiction in *17 CrimiNal the Court. justified. if ever be rarely can justice the administration lawof The principles instance. in this uncalled for certainly is involved, support, sufficient amply the fiction are justify as evidence. demand, the document admission of indeed, justice. secure in order to truth to sacrifice is occasion There no evidence, substantial is no there admissibility its regards As object other any tangible paper between difference rea statement.’ and relevant a truthful making capable peculiarly it as adopt logical is so soning applicable cite the cogent that.we than bar, further nоthing need do case at rule: support authorities additional following 112; Wendell, 11 H. 462; N. v. Y. Haven Mead, 22 N. Guy v. & 210; v. Boston 307, 10 Atl. Donovan State, 67 Md. v. Owens Dow, 64 Mich. 583; People 33 N. Co., 158 M. Mass. E. R. error no There was 597; pp. 748-751. 2 Rice 33 N. W. Ev. evidence.” of this in the admission sometimes cases, which has foregoing The doctrine supported doctrine, to be best seems American called the and principle. reason au- conflicting to discuss necessary deem it We do evidence satisfied, that the thorities, principle, we are erred admissible, the trial and that relevant the same. excluding in its rulings is offered said may when
In conclusion offense committed an has that the defendant tending trial, requires practice good he is on than that for which for which the purpose should state attorney prosecuting that the purpose, for that offered, is admissible and if it the evidence by the requested given, instructions court in the trial for which defendant, jury instruct the should consider such evidence. may FURMAN, concur. ARMSTRONG, J., J., P.