Owens v. State

Alvey, C. J.,

delivered the opinion of the Court:

The appellants were indicted, tried, and convicted, for the offense of having conspired and combined together, to make false and fraudulent returns of votes .cast at a municipal election, held in the City of Baltimore on the 27th of Oct., 1886. The three appellants first named in the indictment were judges at said election, and the two last named were clerks. The indictment charges that they “willfully, fraudulently, and unlawfully did conspire, combine, confederate and agree together, to fraudulently count and return large numbers of illegal votes cast at said election, in said seventh precinct of the first .ward, and to cause to be falsely entered on the hooks of the polls for said precinct of said ward at said election, large numbers of names of persons who .did not vote at said election,” &c.; and that they did, in pursuance of such conspiracy,fraudulently count and return a large number of illegal votes, “and did fraudulently cause to be falsely entered on the books of said election, &c., the names of a large number of persons who did not vote at said election, to wit: [naming particularly twenty-one persons] ; all of which persons did not vote at said election as the appellants well knew.”

It is apparent, from the averments of the indictment, that one of the leading questions in the case was, whether the persons named in the indictment as the persons whose names had been falsely entered in the poll-books of voters as having voted at the election, did in fact vote, as certified by the appellants in the return of said election.

The most simple and direct means, of course, of ascertaining this fact, would have been by the testimony of the persons themselves whose names were thus entered and returned, if they were inexistence and within the reach of the process of the Court. But their testimony was not the only means of establishing the fact the one way or the-other.

In the course of the trial, the appellants took three bills of exception to the admissibility ,'of evidence, adduced by the State, for the purpose of proving that the persons named in the indictment as having been falsely returned as voting, did not in fact vote at the election. It appears-by the first bill of exception, that the State called a witness named Crawford, who testified that he was a challenger at the precinct polls where the appellants officiated' as judges and clerks, and that he had a duly certified copy of thej-egistration poll-hook for that precinct, in which he checked off the names of all persons who voted. That he was at the polls the whole day, except for about am hour —half an hour to get his breakfast, and half an hour to get his dinner — and that during the time of his absence he left the boob in the hands of Foxwell and Hamilton,, who acted in his place. He was then requested by the State to produce the book so used by him at the polls ; and the hook, purporting to be a duly certified copy of the registration poll-book of the precinct, being produced by the witness, the State offered the same in evidence, for the purpose of showing that the witness, Crawford, and Fox-well and Hamilton, had checked off on it the name of every person who had voted at that election ; and offered to follow up the proof by evidence of Foxwell and Hamilton, as to what marks had been put in the hook during the hour when it was not in Crawford's possession. To the use of the boob in evidence the appellants objected ; . hut the Court overruled the objection, and allowed the 1 hook to he used in evidence, under the offer by the State, ! and the appellants excepted.

By the second bill of exception, it appears that the State proceeded with the examination of the witness Crawford,. and proved by him that he checked off alljbut one of those who voted at the polls whiie he was there. He was then asked, if he could identify the checks made by him in the book; to which he replied, that, he could identify nearly all of them. The appellants thereupon again-objected to the admission of the book in evidence, in view of the fact that the witness could not identify all of his checks made in the book, and asked that the book be excluded. This objection was also overruled, and the appellants excepted.

In the third bill of exception it is shown, that the State further proceeded with the examination of Crawford, as to his use of the book, and the care with which he checked off the names of those voting; and at the close of his examination, the State called Charles Foxwell, who testified “that when Crawford left the polls each time, he gave said book into the custody of himself (the witness) and Hamilton, and that they returned it to Crawford each time when he came back : That during Crawford's absence Hamilton held the book, and that he, Foxwell, was present with Hamilton all the time, and saw him check off the name of every man who voted.” It is also shown that a summons was issued for Hamilton, but it was returned non est.

After the State had closed its evidence, the appellants asked the Court to exclude from the consideration of the jury the challenger’s book produced by Crawford, because all three men who held it at the polls had not been produced, Hamilton not testifying, and therefore the original proffer of the State had not been fulfilled. But this request was refused, and the appellants excepted.

We have thus fully stated the facts as set out in the bills of exception, in order to show exactly how the questions arose, and what -was the scope and extent of the rulings of the Court upon the objections taken by the appellants. The whole matter seems to be reducible to a single question, and that is, whether, under the facts as set forth in the several exceptions, there was error in allowing the introduction and use of the challenger’s book as evidence, in copnection with, apd in support of, the testimony of Crawford and Eoxwell. As independent evidence, clearly, the book kept and produced by Crawford would not be admissible, but whether it was not properly admitted with the checks made therein, in connection with the testimony of the witnesses mentioned, is a different question.

There is no.point made upon the fact that the registration poll-book, used and produced by Crawford, was a copy; nor could there be any such objection taken to it. It was an official copy, duly certified under the law; but it derived its importance _and effect as evidence from the feet of itspuse and the checks or marks that were made therein at the polls, during the progress of the election. f As to.such checks or marks, therefore, they must be re-jlj garded as original entries or memoranda, made cotempo-j/¡¡ raneously with the transaction to which they relate. i"

This, as we have seen from the facts stated, is not the case of the use of a book or entry for the mere purpose of refreshing the faded recollection of a witness. But it is the case of a witness who does not profess to be able to repeat from memory all the details of the transaction in question, but testifies that he made correct entries a't_the time of the transaction as it progressed, and that he knows that such entries were made in accordance with the truth, and that they faithfully represent the whole transaction as it occurred; and the question is, whether in reason, or upon any well settled doctrine of law, such entries ought to be excluded as evidence, when offered in correction with i;the testimony of the witness ? We certainly know of no idecision in this State that would require the exclusion of /isuch evidence; nor are we aware of any established prin- / ciple that requires it. On the contrary, we think both decision and principle fully justify its admission.

In the case of Owings vs. Low, 5 G. & J., 134, the question being as to the sale and delivery of goods, the clerk of the plaintiff proved that the goods charged for on the day-book, produced at the trial, were at times made by witness, or one of the other persons named by him; and “ that all the things charged by himself he knew were delivered as charged,- because he never made such charges without delivery.” And it was held, without question, that it was competent for the clerk to prove the delivery of the goods, by referring to the entries made by him in the day-book, upon his testifying to his belief that the entries were truthfully made at the time they professed to have been made. The same principle has been fully adopted by the Supreme Court of the United States. In the case of Ins. Co. vs. Weide, 6 Wall., 677, the witness, one of the plaintiffs, identified the day-books and ledger produced, and testified that such books were kept by him and his partner, (who was also examined as a witness and testified to the same facts,) and that they were correct: that the entries in the day-book were the original entries of purchases and sales; but that he could not state from recollection the amount or value of the stock on hand at the time of the fire. And upon the question of the admissibility of these books in evidence, the Court said: “ There can be no doubt but the day-books and ledger, the entries in which were testified to be correct by the persons who made them, were properly admitted. They would not have been evidence per se, but with the testimony of the witnesses accompanying them all objections were removed»-” And the same principle was strongly re-affirmed by the same Court, in the subsequent case of Ins. Co. vs. Weide, 14 Wall., 375. In this latter case the Court said: “How-far papers, not evidence per se, but proved to have been true statements of facts, at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has many times been decided that they are to be received. And why should they not he? Quantities and values are retained in the memory with great difficulty. If at the time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as is the memory of the witness.” And the same principle has been maintained and applied by other Courts of high authority, without qualification. Farm, & Mech. Bank vs. Boraef, 1 Rawle, 152; Smith vs. Lane, 12 Sergt. & Rawle, 84, 87; State vs. Rawles, 2 Nott & McC., 331, 333.

Nor is there any real departure made in these decisions from former settled doctrine upon the subject. This is fully shown, by a careful and able review of all the cases, by Messrs. Gowen and Hill, in Note 377 to page 412 of 2 Phillips Evidence (2 Vol. notes, 726.) And in the case of Halsey vs. Sinsebaugh, 15 N. Y., 485, the same thing is shown, and the principle deduced from the cases by Messrs. Co wen and Hill, in their note to Phillips', is, in that case, fully approved. In the case of Halsey vs. Sinsebaugh the question was as to what a witness had sworn on a former trial, and one of the counsel engaged was called as a witness, who testified that he was present at'the former trial, and took notes of the testimony, and that he had no doubt of the correctness of his notes, which he produced. But objection was made to his stating what the witness had said, unless he recollected the testimony independently of the notes taken by him; and upon his saying that he did not, the objection was sustained by the Court below. But upon appeal that ruling was reversed ; the Court of Appeals holding, that where a note or memorandum made at or about the time when the event or transaction mentioned in it took place, and where the author swears that he knows it to have been correct when made, such note or memorandum may be read to the jury as evidence, in connection with the oral testimony of the witness. And the Court say, what is certainly true, that to exclude such note 'or memorandum, when shown to have been honestly made, would be to reject the best and frequently the only means of arriving at truth. That case, and also the note of Cowen and Hill to 2 Phillips’ Evidence, supra, have both been referred to with approval by this Court, in the case of Martin vs. Good, 14 Md., 409. And in a still more recent case, that of Morrow vs. Ostrander, 13 Hun, 219, where the genuineness of a teacher’s certificate was in question, the School Commissioner was called as a witness, and testified that, to the .best of his knowledge and belief, he did not sign or issue the certificate; and further, that he kept a book, in which he entered the certificates issued by him during the month in which the certificate in question bore date; and which book was produced and offered in evidence to show that it contained no entry of the certificate held by the plaintiff. And upon objection being made, the hook was excluded by the Court below, but on appeal, that ruling was reversed ; and the Court of review said: “The Court below seems to have excluded the memoranda on the ground that they were not required to he kept by law. Whether or not the memoranda were admissible, the reason assigned for excluding them was not sound. There is no distinction, in this respect, between entries which are required to be made officially, or in the course of business, and those which are made voluntarily outside of the routine of the business of the party making them.” And they cite the cases of Monroe vs. Culver, 2 Hill, 531, and Merrill vs. The Ithaca and Oswego R. R. Co., 16 Wend., 599, And the Court, referring to the case of Halsey vs. Sinsebaugh, supra, held that the hook was admissible as evidence, in connection with the testimony of the witness making the entries therein.

It has been urged in argument that the entry or memorandum can only he used where the witness has no_present independent recollection of the transaction referred to. But its admissibility depends upon no such distinction. If the witness swears that he made the entry or memorandum in accordance' with the truth of the matter, as he knew it to exist at the time of the occurrence, whether he 'retains a present recollection of the facts or not, the entry or memorandum is admissible; for though he may have a present recollection, (of doubtful or varying degree of certainty, it may be,) independently of the memorandum, ¿1 the paper is admissible as means of verification or confirmation of what he states from memory. This is the clear logical deduction from the cases cited. New men are so gifted with the powers of memory as to be able to recall the details of past transactions with perfect accuracy, especially when such transactions involve great number of names, dates., amounts, &c., and therefore the best recollections, and the greatest degree of self-reliance in the statement of past facts, may derive force and reliability from truthful memoranda made at the time of the transaction; and the law always prefers that evidence which insures the greatest degree of certainty in the establishment of truth. The admissibility, however, of such entry or memorandum, does not depend upon the distinction made in the law, between primary and secondary proof,

Here, the' book was offered in evidence in connection with the testimony of Crawford, with a proffer of other evidence to cover the whole time from the opening to the close of the election polls. Crawford testified to the fact that he had checked off all but one of those who had voted at the polls, while he ivas there; and Foxwell testified, that, upon both occasions when Crawford left the polls, he, Crawford, placed the book in the hands and custody of witness and Hamilton, and that they gave it back to Crawford upon his return ; and that during Crawford’s absence Hamilton held the book, and he, Foxwell, was present with Hamilton all the time, and saiv him check off the name of every man who voted. With this testimony, we can entertain no doubt of the admissibility of the book in evidence, upon the principle of the cases to which we have referred.

Nor was it any sufficient reason for excluding the book that Crawford could not identify each and all the marks or checks placed in the book by himself, and distinguish them from those made by Hamilton or Foxwell. Whether the marks were made by one or the other of these witnesses was quite immaterial; for the checks or marks placed in the book were simply to designate those who had voted; and it was not so much the purpose of the i evidence to show what persons had voted, as to show in j a negative way that those particular persons named in | the indictment did not vote, as certified by the appellants.

Nor was the failure to produce Hamilton as a witness to testify cause for excluding the book, in view of the testimony of Foxwell; for the latter testified that he was present and saw the name of every man who voted, during the absence of Crawford, checked off by Hamilton, and that the book in that condition was returned to Crawford. The absence of Hamilton, doubtless, afforded matter of comment to the jury, and was a circumstance for their consideration in estimating the value of the evidence; but in view of the testimony of the witnesses in relation to the book, and the manner of its use at the polls, the Court was clearly right in refusing to exclude it from the consideration of the jury. If the indictment had been for wilfully and corruptly omitting the names mentioned from, instead of including them in, the returns, and on the trial the traversers had offered the evidence here offered by the State,/very fair-minded person would say at once that the evidence ought to be admitted; and clearly, if it would be proper to admit the evidence in that case, it ought not to be excluded in this. Its weight and force the jury wej-e vei’y competent to consider, the only question for the Üourt being its legal admissibility.

(Decided 21st June, 1887.)

The case has been very ably and ingeniously argued for the appellants, and we have carefully considered all the points taken; but we discover no error in the rulings of the Court below, and those rulings, as presented by the bills of exception, must be affirmed.

Rulings affirmed, and cause remanded.