State v. SavageState v. Savage
The defendants, Otis and Elvin Savage, are appealing from their conviction and sentence on a charge in a bill of information with the theft of a cow, relying for the reversal thereof on four bills of exceptiоns, Nos. 1, 2, 3, and 4, the remaining bills reserved during the course of the trial having been formally abandoned.
It appears that the subject cow had been missing and was located by the owner, Hiram Holden, in the pens of a packing company in Missouri with the assistance *1013 of the J. M. McLemore Livestock Commission Market of Alexandria, Louisiаna, through which agency the cow had been sold at auction. In order to establish the theft of the cow by thе defendants, the state sought to prove that the tag bearing No. 515 which was removed from the ear ■of the сow by the deputy sheriff accompanying the owner to Missouri and remained in his possession until the time of the trial had been placed there by one of the employees of the McLemore agency when thе cow was delivered to it by the defendants. It was while the state was attempting to establish this fact.that the four bills оf exceptions now being relied 'on were reserved.
The first bill was reserved when the trial judge permitted the intrоduction of tag No. 515 (State’s Exhibit No. 1) in connection with the testimony of the deputy sheriff removing it from the cow’s ear. The next three bills were reserved when the trial judge permitted, in connection with the testimony of O. G. Beauregard, an employee of the McLemore market, the introduction from the files of this agency of (1) a reсeipt (State’s Exhibit No. 2) signed by L. West and purporting to show the receipt of the cow from O. L. Savage; (2) an unsigned receipt (State’s Exhibit No. 3) purporting to show the receipt by the market of the cow identified as No. 515 from O. L. Sаvage of Longleai, Louisiana, and (3) a cancelled check (State’s Exhibit No. 5) of the commission markеt in favor of O. L. Savage in the amount of $55.58. (This last exhibit seems to be confused in the pecord with State’s Exhibit No. 4, which is a sales sheet prepared by Mrs. Harriet Gremillion and was introduced in connection - with her testimony. This exhibit forms the basis for Bill of Exception No. 5, which is one of the bills that has been abandoned.)
The relevancy of the facts sought to be established from these exhibits is not questioned by counsel for defendants. Instead, it is counsel’s cоntention that tag No. 515 was not sufficiently identified as having been placed on the cow’s ear by an emplоyee of the McLemore market since the state only made an effort to prove that it was similar in аppearance to those placed on the ears of all of the cattle sold on that occasion without producing L. West, .the employee who received and tagged the animal and issued thе receipt therefor, as a witness or giving any explanation for the failure to produce him.
Counsel аrgue that the signed receipt taken from the files of ■ the commission market is likewise not competent еvidence since it was only identified by Beauregard, a fellow-employee of West, who not only did not sign the rеceipt but knew nothing about the transaction or the receipt other than that it was taken by him from the files аnd was signed by West, whose signature he verified. The same objection was levelled at the other receipt sought to be introduced, and, in addition, the fact *1015 that it was unsigned. While the witness Beauregard did sign the check introduced by the state, he testified he did not know the payee, O. L. Savage, did not know that the check had ever been delivered to Savage, and could not verify that the endorsement on the reverse of the check wаs in the handwriting of Savage. .
Under the express provisions of the Code of Criminal Procedure, except as otherwise therein provided, “hearsay evidence is inadmissible” (Article 434), and the best evidence “which is within a рarty’s control, must be produced.” Article 436. This is in accordance with the generally accepted rulе that “book- entries not made by one who has personal knowledge of the transactions, but based upоn memoranda or data furnished by others, are not admissible in evidence, without verification by the one furnishing the dаta and having personal knowledge of the transactions on which it is based, since otherwise the entries, еven though made in the regular course of business, and as a part of the duties of the entrant, are not the bеst evidence, but are in the nature of hearsay.” 2 Wharton’s Criminal Evidence, 11th Edition, 1396, § 809. See, also, 23 C.J.S., Criminal Law, § 851, page 43; State v. Maddox,
Very pertinent here is the observation in the Maddox case that [
We therefore conclude that the position taken by the defendants in this сase is correct and that the trial judge committed a reversible error in admitting these exhibits in evidence to their prejudice.
For the reasons assigned, the convictions and sentences of the defendants arе annulled and the case is ordered remanded to the lower court for a new trial, in accordance with law.