filed the following dissenting opinion:
The bills of exception make a very meagre statement of the facts of this case. We have not, however, any legitimate means of knowing what occurred at the trial in the Criminal Court, beyond what is stated in the record. We are strictly confined to that, and are obliged to foun'd our opinion exclusively upon what is therein stated. John Crawford, a witness for the State, testified that he was at the seventh precinct of the first ward of the City of Baltimore at the last municipal election; that he was there during the whole time the polls were open with the exception of an hour; that during that hour of absence he left a book with Foxwell and Hamilton. The testimony in reference to this book is thus stated in the first bill of exception: “Q. What book did you have there — you say you had a book there? A. Yes sir. Q. Get it and let us see what it is?” The witness here produced a book purporting to be a duly certified copy of registration poll-book of the seventh precinct of the first ward; to the use of which in evidence the traverser objected. The State offered the book for the purpose of showing that the witnesses Crawford, Foxwell 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 book during the hour when it was not in Crawford’s *319possession. The Court overruled the objection of the traversers, and permitted said hook to be used in evidence.
The traversers were indicted for a conspiracy, fraudulently to count and to return large numbers of illegal votes cast at the municipal election, and to cause to be falsely entered on the poll-books large numbers of persons who did not vote at the election. And the overt act of the conspiracy was charged to be the false entry on the poll-hooks of the names of twenty-one persons who did not vote. The names are stated in the indictment. As a matter of course, unless the State could succeed in showing in point of fact that some one of these twenty-one persons did not vote, the indictment could not be sustained. The hook was offered for the purpose of showing that they did not vote, and that the entry of their names on the poll-books was fraudulent and false.
If the names of all persons who voted were checked off on the book which was offered in evidence, it followed as a necessary inference that those persons whose names were not checked failed to vote. These checks were made without the knowledge or acquiescence of the accused, by persons who kept the hook in their own possession. They were in fact private unsworn declarations that certain! persons voted, and that certain others did not vote. The^ law has prescribed with great accuracy and precision the circumstances under which unsworn memoranda may he admitted in evidence. In the second reign of Queen Anne, the case of Price vs. Earl of Torrington established the rule of evidence, which has always been recognized and maintained by the Courts of this State. It made an exception to the general rule which excludes hearsay testimony. In Romer vs. Jaecksch, 39 Md., 589, this Court speaking of the doctrine in question, quotes with approval the following passage from Taylor on Evidence : “ From the cases cited above, it may be collected, that in order to *320bring a declaration within the present exception, proof must be given that it was made contemporaneously with the fact which it narrates, and in the usual routine of business, by a person whose duty it was to make the whole of it, who was himself personally acquainted with the fact, who had no interest in stating an untruth, and who is since dead.” There is another rule of evidence which permits a witness for the purpose of refreshing his memory, to use writings which have been made by himself. The distinction is very manifest between the cases coming under these different rules. In the one case the writings go to the jury as evidence of the matters stated in them, and the oath of the witness is necessary merely to prove that they are original, and that they were made in the usual course of business; in the other case the oath of the witness must establish the truth of the matter in question, according to his present knowledge and belief, and the writings are not instruments of evidence to any extent whatsoever. The distinction between' these two classes of cases is clearly marked in the text hooks and in decided cases. In the notes to Price vs. Earl of Torrington, 1 Smith’s Leading Cases, it is said : “ The cases involving this principle are to be distinguished from those which turn upon a witness’ being allowed to refresh his memory by referring to memoranda or entries.” It is held that the docuipents used to refresh the recollection of a witness must he produced at the trial, so that the opposite counsel should have an opportunity of inspecting them, so-that he may have the benefit of refreshing the memory of the witness by every part of them; but these documents are not evidence, and do not become so by reason of the fact that the adverse counsel has looked at them, and cross-examined the witness in respect to them. 1 Taylor on Evidence, section 1270; 1 Greenleaf on Evidence, section 437. In Kensington vs. Inglis, 8 East, 273, it appeared that licenses to trade with the public enemy *321had been granted by a colonial governor, and entries of the licenses had been made by the governor’s secretary in a memorandum book; and the question was whether it was necessary to produce the book in evidence for the purpose of proving the granting of a license. Lord Ellen-borough said: “As to the non-production of the secretary’s memorandum book, in-which he had made entries of licenses for his own and the governor’s information; that book, if it had existed, and been in the secretary’s hands ready to be produced, could not have been produced at the trial in proof of the fact of granting any particular license.; the only use which it could have been allowed to answer being by way of memorandum to refresh the memory of the secretary who made the entries, when he should be called as a witness.” In Field vs. Thompson, 119 Massachusetts, 151, the question being on the admission of certain entries in the plaintiff’s account book, the Court said : “ The entries might doubtless be shown to the witness to aid his recollection ; and if they did not appear to have been admitted for any other purpose the exception to their admission could not be sustained.” Dugan vs. Mahoney, 11 Allen, 572; Cobb vs. Boston, 109 Mass., 438. But the final ruling of the learned Judge, as stated in the bill of exceptions allowed by him, went beyond this. It was, “that the entry in the book might be regarded as a memorandum made by the plaintiff at the time, and, as such, entitled to some weight in confirmation of the recollection and evidence of the plaintiff,” upon the question at issue between the parties. This ruling was inconsistent with the first one, and allowed to these entries a weight as evidence in corroboration of the plaintiff’s testimony, to which they were not legally entitled. Townsend Bank vs. Whitney, 3 Allen, 454; Maine vs. Harper, 4 Allen, 115; Bentley vs. Ward, 116 Mass., 333; Prew vs. Donahue, 118 Mass., 438.” In Cobb vs. Boston, 109 Massachusetts, the Court said : “ We do not understand that the *322memorandum was offered as being of itself evidence, but that the witness testified to his present recollection of the truth and correctness of a valuation, which he made six months previous to the taking (of land for the use of the City of Boston). The fact that he made a record at the time ought not to prevent him from testifying to the matters which he had so recorded, if at the time of testifying, he kn,ew them to be true. Under such circumstances, the commissioners might in their discretion permit him to read from his memorandum.” In Commonwealth vs. Ford, 130 Massachusetts, 64, the Court, quoting from Lord Ellenborough, said: “ It is not the memorandum that is evidence, but the recollection of the witness.”
These rules of the common law prevail in Maryland. Let us examine some of the decisions of this Court. In Owings vs. Piet and Low, 5 Gill & Johnson, 134, cited in the opinion of the majority of the Court, a witness testified that he and one Dukehart were clerks in the employment of the plaintiffs who carried on the hardware business in the City of Baltimore ; that during that time various articles of hardware -were sold and delivered to the defendant; that sometimes the things were delivered by witness to defendant, or his order ; sometimes by plaintiffs or one of them ; and sometimes by Dukehart; that the charges for the same on the day-book of plaintiffs were at times made by witness, or by one or other of said persons ; that all the things charged by himself, he knew were delivered as charged, because he never made such charges without delivery; and that it was the constant usage of the plaintiffs and Dukehart, never to make entries in the book without a like delivery. The defendant objected to the admissibility of all the evidence, except the evidence of the entries actually made by the witness, and the goods, amounts and particulars comprised in such, entries ; and Baltimore County Court sustained the objection. .The Court of Appeals affirmed this ruling. The witness *323swore that he knew that the things charged by himself were delivered as charged. His evidence, as to the matters which he knew was not objected to, and no question about this part of it was decided by the County Court or by the Court of Appeals. The point decided by both Courts was that the evidence was not competent to show the entries made by the plaintiffs and by Dukeliart. In Reynolds vs. Manning, 15 Md., 510, this Court explicitly quotes and approves the rule stated in Price vs. Torrington in these words: “It has been long held that entries made by a clerk in the regular course of business, he having no interest at the time in stating an untruth, should be received in evidence after the clerk’s death on proof of his hand-writing ;” and the only change which the Court makes in the rule is, that it extends the admissibility of this testimony to a case where the witness had gone to Australia, and had not been heard of for three years. As we have already seen, this Court in Romer vs. Jaecksch 39 Md., 585, had occasion to refer to and approve of the rule in Price vs. Torrington. This last case was decided by Chief Justice JBartol and Judges Bowie, Grason, Miller, Alvey, and Robinson. In Spiker vs. Nydegger, 30 Md., 315, the plaintiff sought to prove by a witness who had been a justice of the peace, certain entries which he had made on his docket; the Court below excluded the entries, but permitted the witness to use them for the purpose of refreshing his recollection, and then permitted the parol testimony of the witness to go in evidence to the jury. This Court affirmed this ruling. In Swartz vs. Chickering, 58 Md., 290, certain papers written by the witness were offered in evidence. This’ Court, on page 298, says: “Exception was taken to the production of these papers, and it is very clear they were wholly inadmissible as evidence. They contain the mere statements made hv the witness to Ohickering out of the presence of the appellant and after Mr. Snowden’s death; and the Judge *324of the Circuit Court was right in holding that they could not be used in evidence to prove the happening of the events to which they refer. The ilearned Judge held, however, that they might be used to refresh the memory of the witness. This rule would apply if they had been written contemporaneously with, or soon after the transaction.” In Ward vs. Leitch, 30 Md., 326, where entries in the plaintiff’s ledger made in the hand-writing of the defendant’s testator, were offered in evidence against the defendant, this Court said: “Now although these entries would not’ have been admissible for the purpose of charging a third person, because not made by a clerk in the ordinary discharge of his duty; and contemporaneous with the transactions to which they relate, yet they were admissible as declarations or admissions made by the party against his interest.” page 333. In Bullock vs. Hunter, 44 Md., 416, where Ward vs. Leitch and other cases were cited, it was said : “The case is clearly distinguishable from those cited,by the fact that the witness had a distinct recollection of the several transactions independently of the paper, and was able to testify from his own recollection, after looking at the account which was used merely for the purpose of refreshing his memory.” In this last case the Court refer to Henry vs. Lee, 2 Chitty’s Reports, 124, already cited, in which Lord Ellekborough said: “It is not the memorandum that is the evidence, but the recollection of the witness.” In Waters vs. Waters, 35 Md., 540, the question was whether the testimony of a deceased witness, given in a former cause between the same parties, could be proved by reading to the jury the notes of such testimony as taken down by one of the attorneys at the former trial. The Court below refused to permit the notes to be read as evidence, but “allowed the attorney, who was sworn as a witness, to refresh his memory by looking at the notes, and then to state what recollection he had of the testimony given by the deceased witness after he had read the notes.” *325This Court, affirmed the judgment and decided that such notes are mere memoranda, which may be used to refresh the memory of' the witness who took them, but are not of themselves evidence. The Court say that they fully concur in the reasoning of C. J. Tilghman in Lightner vs. Wike, 4 Sergeant & Rawle, 203. In that case he said: “These notes have no character recognized by the law; they are no more than a private memorandum, by which the witness would have heen permitted to refresh his memory; but when refreshed, lie must swear from his own memory and not from his notes.” In Martin vs. Good, 14 Md., 399, cited in the opinion of the majority, the Court did not permit an entry to go to the jury in evidence. On the contrary the question was about the admission of the parol' testimony of a witness, and they quote from Greenleaf, and state the rule in these terms: “From an examination of the adjudged cases, we are of opinion that the law applicable to the point under review is correctly stated in 1 Greenlf. Ev., 437, as follows : ‘Where the writing is neither recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to he genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact,’ the testimony will be received.” These references have been made at great length, hut they were necessary to show the frequent and oft-repeated declarations of this Court on the rule of evidence now under consideration. A reference to Hare & Wallace’s Notes to Price & Torrington in Smith’s Leading Cases, will readily show that the law is different in some of the other States. The cases cited from the New York Reports in the opinion of the majority of the Court, show that a different rule of evidence prevails in that State. And the cases cited from the Supreme Court of the United States, show that that tribunal has adopted *326the New York rule. In Insurance Company vs. Weide, 9 Wallace, 677, the Court founds its opinion on two New York cases. It is not necessary to consider how far it is our duty to adhere to our own law, established by immemorial usage and solemn adjudication, when we find that it varies from the opinions held elsewhere. Nor is it at all necessary for us to discuss the reasons which have controlled the judgment of other judicatures. An examination of the cases cited, will, however, show that they rest upon premises which have been denied and rejected by our Courts. In Halsey vs. Sinsebaugh, 15 New York, 485, the decision is thus stated : “Minutes of the testimony of a living witness taken by counsel upon a former trial, who produces them and swears that he has no doubt of their correctness, but has no recollection, independent of the minutes, may be read by him, and are evidence to the jury.” A ruling in direct conflict with our law as declared in Waters vs. Waters, 35 Md., 531. In Morrow vs. Ostrander, 13 Hun, 219, the decision in Halsey vs. Sinsebaugh was followed, and it was further stated that there was “no distinction 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.” This last declaration is at war with the whole theory of the rule of evidence, as-always held in this State, and as emphatically-stated in Romer vs. Jaecksch, 39 Md., 589. As has been stated, the Supreme Court of the United States has:adopted the New York rule. In the cases cited from that Court in the opinion of the majority of this Court, it was held that entries made' by the plaintiffs themselves were admissible in evidence. When the Supreme Court decides a question arising under the Constitution and laws of the United States, its decision must be accepted and obeyed by the State Courts. But it has never been held or even surmised by any legal authority, that its opin*327ions can change the local law of the different States. Assuredly no such idea has ever been entertained by any member of this Court.
Let us recur to the testimany as stated in the first bill of exception. The marks in the book were mere private memoranda made by the witnesses. They were as distinctly hearsay, as if they had been mere oral statements. I think that I have shown by reference to decided cases, that no such testimony is tolerated in our Courts. The book might have been used to refresh the memories of the witnesses. In that case they ought to have been required to state what recollection they had on the subject as ruled in Waters vs. Waters, 35 Md., 531. Or if they had forgotten j the particulars, yet knowing the writing to be genuine, \ their minds were so convinced, that they were able to swear positively to the facts, their testimony ought to have been received ; this would have been according to the decision in Martin vs. Good, 14 Md., 398. The facts to be proved were that the twenty-one persons named in the indictment were falsely entered as having voted, and that they did notin fact vote ; or, at least that someone of them was falsely entered as a voter, and failed to vote. The record does not state that the book showed anything whatever about anyone of these persons ; nor does it state that any of the witnesses mentioned any one of them, or in any way alluded to one of them. It is stated in the first bill of exception that the book was admitted in evidence, on the pledge of the State to follow it up by evidence of Eoxwell and Hamilton as to what marks had been put in the book during the hour when it was not in Crawford’s possession. In the second and third exceptions, evidence was offered tending to show that the names of all persons who voted had been checked off on the book. This proof does not remove the objection to the admissibility of the book. In the view of the law the book was hearsay ; a private memorandum made by the witnesses. As such it is peremptorily excluded by the *328law of Maryland. And it cannot be made more than hearsay by statements of witnesses that it was correctly kept. Hearsay may be true or untrue ; but it is hearsay still. The witnesses who kept the book may examine it at the trial and refresh their memories, and if they are able to swear that the matters stated are true, it is competent for them to do so. The persons accused are' entitled to the oath of the witnesses as to their present knowledge, tested by the ordeal of a cross-examination,, which is something more precise and certain than any statements that they made correct entries in a book on a previous occasion. And so the law considered when it rejected such entries, unless they .were made by a 'person whose duty it was to make them in the usual course of business, who was himself personally acquainted with the facts stated, and who was dead or so far distant, that it was impossible to obtain his testimony. It has already been seen that according to the record before this Court, neither the book nor the testimony of any witness shows that any person was falsely entered on the poll-books as a voter.
The crime alleged against these traversers is one of much enormity. But surely no one willimagine that they are not entitled to be tried according to the law of the land. Upon the Courts is devolved the solemn duty of administering this law, “without fear, favor or affection,” dealing out justice strictly and impartially to all without respect to persons. It is my deliberate conviction that the evidence in this record was admitted contrary to the law as heretofore understood and established ; and that the traversers are entitled to a new trial.
(Filed 21st June, 1887.)