§ 32. Term Defined.

CHAPTER VI.

DOCUMENTARY EVIDENCE.

33. Public Documents in Evidence.

a. Examined Copy.

b. Recent State Legislation on the Subject.

c. The Rule in California.

d. The Rule in New York.

e. Rule in United States Courts.

34. Refreshing Memory by the Use of.

a. Private Accounts and Documents Obtained by Seizure. 35. The English Rule.

36. Parol Evidence as Affecting.

37. Maps, Charts, etc., in Evidence.

§ 32. Term Defined. "Written document" has been defined as "that which conveys information; that which furnishes evidence or proof; a written or printed instrument. An instrument on which is recorded, by means of letters, figures, or marks, matter which may be evidently used." 1 Whart. Ev. § 614; Anderson, Law. Dict. title Document.

"Recent statutes having used the term 'document' to desig nate the objects of forgery, as well as in some measures of larceny, it becomes our duty to inquire, in the first place, what the term 'document' includes. And the answer is that a document, in this sense, is an instrument on which is recorded, by means of letters, figures, or marks, matter which may be evidently used. In this sense tho term document applies to writings; to words printed, lithographed, or photographed; to seals, plates, or stones on which inscriptions are cut or engraved; to photographs and pictures; to maps and plans. So far as concerns admissibility, it makes no difference what is the thing on which the words or signs offered may be recorded." Wharton, Crim. Ev. § 519.

Under this term are properly included all material substances on which the thoughts of men are represented by writing or any other species of conventional mark or symbol; this is the comprehensive definition by Best. Sir James Stephen's definition is more

restricted: "Any substance having any matter expressed or described upon it by marks capable of being read." Stephen, Dig. Ev. art. 1.

Chamberlain, in his valuable annotations on the treatise of Best, at page 215, comments suggestively as follows: "Within these definitions, a ring or banner with an inscription, a musical composition, and a savage tattooed with words intelligible to himself, would all be documents. Photographs, caricatures, wooden tallies, and the like, would probably be excluded under Stephen's definition, not apparently under the others."

While the sweeping definitions here given are probably sufficiently accurate for the purpose of distinguishing documentary from personal evidence, it may be doubted whether the definition of "document" could not with advantage be narrowed to the single case of writing as a means of conveying thought in certain instances. Thus it is submitted, the so-called "best evidence rule” applies only to written documents. Thus, for example, in Com. v. Morrell, 99 Mass. 542, it was held that a tag of a valise on which words were inscribed was not a document. But see Memphis & C. R. Co. v. Maples, 63 Ala. 601.

Public documents include "an instrument of record concerning the business of the people at large, preserved in or emanating from any department of government; also, a publication printed or issued by order of one or both houses of Congress or of a state legislature." Anderson, Law Dict. title Document.

Public documents include also state papers, maps, charts, and like formal instruments, made under public auspices. A copy of such document, issued by public authority, is as valid as the original; as, an officially published statute. The term also embraces official records required to be kept by statute. See McCall v. United States, 1 Dak. 321; 1 Supp. Rev. Stat. pp. 154, 288. There are records which partake both of a public and private character, and are treated as the one or the other, according to the relation in which the appellant stands to them. The books of a corporation are public with respect to strangers. tices of Peace, 677.

Haines, Jus

The California Code of Civil Procedure, after dividing all writings into two kinds, viz: public and private, declares public writings to be: "1. The written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public

officers, legislative, judicial and executive, whether of this state, of the United States, of a sister state or of a foreign country. 2. Public records of public writings." Cal. Code Civ. Proc. (1888) $18.

Public documents, presumptively, contain the records made by the public functionaries in the executive, legislative and judicial departments of the government. They import necessarily a high degree of credibility. Their recitals are supposed to contain authentic memoranda of what especially concerns the general public. And they are frequently the memorials and repositories of both vested and inchoate rights. It is contrary to public policy and the rules of effective government to allow them to be disturbed. In rare instances, where clerical error can be disclosed, or where fraudulent practices can be established, a public document can be assailed and its force and effectiveness utterly vitiated. But from a very early period these documents have been open to inspection at all reasonable hours, and frequently where written and other documents are in the official custody of some officer of the court, inspection may be had upon due application and an order granted. Rex v. Staffordshire, 6 Ad. & El. 99; Atherfold v. Beard, 2 T. R. 610; Stone v. Crocker, 24 Pick. 88.

§ 33. Public Documents in Evidence.-The statutory law of the various states makes ample provision for the introduction of public documents in evidence and indicates the method to be adopted. Many of the principles which underlie the introduction of judicial records in evidence apply to the principle under discussion. It will be remembered that not only are the judicial proceedings of the courts of any state admitted in evidence, when properly attested, but the records also are entitled to the same privilege. The language of the congressional Act is "the records and judicial proceedings of the courts of any state shall be proved if admitted in any other state in the United States by the attestations of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form." Act of May 26, 1790, § 1; 1 Story, U. S. Const. 93. This Act was passed pursuant to the Constitution, conferring the power upon Congress to prescribe the manner in which public acts, records and judicial proceedings of one state shall be proved in any other state and the effect to be given to them. U. S. Const. art. 4, § 1.

The Act prescribes the persons by whom the records shall be attested, but the form of the attestation, and that alone, is not prescribed, but must conform to the usage of the state in which the record is, and not to that of the United States or of the state in which it is to be used in evidence. Morris v. Patchin, 24 N. Y. 395, 82 Am. Dec. 311.

Judge Allen in the above entitled cause lays down the rule that the clerk alone can certify under this statute, and that the certificate of his under clerk in his absence is incompetent.

We do not think the various provisions of the state constitutions securing to the defendant in a criminal prosecution the right "to be confronted with the witnesses against him," can apply to the proof of facts in their nature essentially and purely documentary, and which can only be provided by the original, or by a copy officially authenticated in some way especially when the fact to be proved comes up collaterally. People v. Jones, 24 Mich.

215.

The Constitution of the United States (Amendment VI.) contains the same provision in the same words; yet, upon an indictment for arresting a person accredited as a foreign minister, contrary to an Act of Congress, it has been held that the certificate of the Secretary of State (of the United States) that the person had been so recognized by the Department of State, was full evidence of the fact (United States v. Benner, 1 Baldw. 234); and so upon an indictment for an assault and battery upon an attaché and secretary to the legation of Spain, such certificate was held the highest and best evidence. United States v. Liddel, 2 Wash. C. C. 205. Yet, the fact certified to was much more directly in issue, and more essential to the offense charged, than in the present case. See also United States v. Ortega, 4 Wash. C. C. 531. Roscoe and Wharton, and other writers upon evidence in criminal cases, in support of the doctrines which they lay down touching this matter of the production and use of documents as evidence, cite civil as well as criminal cases, and Roscoe says, that the rules of evidence with regard to the proof of documents, are the same in both.

The general doctrine, as stated by them all, is substantially this, that records and entries of a public nature, in books required by law to be kept, may be proved by an examined copy, and by a certified copy where the officer having charge of the record is

authorized by law to make copies to be used as evidence, both for the sake of convenience and because of the public character of the facts they contain, and the ease with which any fraud or error in the copy can be detected. Roscoe, Crim. Ev. (6th Am. ed.) 148, et seq., 157, 160; 1 Whart. Am. Crim. Law, § 654; 1 Greenl. Ev. (1st ed.) § 91.

So where a person is served by a subpoena duces tecum to produce a document, which is of itself competent evidence, or may be identified by some one else, it is not necessary to have him sworn or to put him on the stand. Perry v. Gibson, 1 Ad. & El. 32, cited in Roscoe, Crim. Ev. 101; State v. Frederic, 69 Me.

400.

a. Examined Copy.-The most felicitous evasion of the embarrassments frequently encountered, under the old practice in introducing public documents in evidence is by "examined copy," that is, a copy sworn to be a true copy by a witness who has compared it carefully with the original. This mode of proof avoids much inconvenience. There is an insuperable objection to the actual production of the original documents themselves. They are, comparatively speaking, little liable to abstraction, alteration or misrepresentation. The entire community are interested in their preservation. With but few exceptions they are subject to daily inspection, and they are frequently required for evidentiary purposes, so frequently, in fact, as to be demanded in several places at the same time. Obviously this constant handling and bandying would result in mutilation and loss, and the rule of "examined copy" avoids much confusion, delay and hardship.

b. Recent State Legislation on the Subject.-Colorado legislation illustrates the latest phase of statutory enactment concerning this subject of public documents. Its Code of Civil Procedure, as amended in 1889, provides:

"A copy of any document or record or paper, in the custody of a public officer of this state or of the United States, within this state, certified under the official seal, or verified by the oath of such officer to be a true, full and correct copy of the original in his custody, may be read in evidence in an action or proceeding in the courts of this state, in the like manner, and with the like effect as the original could be if produced." Rice, Ann. Code Civ. Proc. § 422.

It must be remembered, however, that courts do not take ju