Thomas v. United States , 156 F. 897 ( 1907 )

SANBORN, Circuit Judge

(concurring). I concur in the reversal of the judgments in these cases for the reason stated in the foregoing ■opinion, and also because it seems to me that the testimony of George A Barton to the contents of-the record book, or of the memoranda, ■which he swore that Kimber L. Barton kept of the moneys received for’ Barton Bros., was hearsay evidence, and its reception fatal error. •Conceding that Kimber E. Barton was a co-conspirator with the defendants .below, and that his overt acts in the execution of the conspiracy were admissible against them, the proof of those overt acts was ■still subject to the established rules of evidence. Whether or not he ■or his firm received the sums of money which George A. Barton read from that book from the defendants, or either of them, whether or not he correctly entered in that book what he or his firm received, were questions of fact which were decisive in the trial of this action. If George A. Barton had testified that Kimber L. Barton had told him that Kimber, or his firm, had received the moneys entered in that book, that testimony would have been hearsay. The mere fact that those amounts were written in the book by a person other than the witness ■does not change their character. Written hearsay is not more competent than oral hearsay. Before the contents of that book could become admissible evidence against the defendants, competent proof that the •moneys there entered were received from the defendants, or one of them, and that Kimber L. Barton correctly wrote down in that book the amounts which he, or his firm, so received, was indispensable. Even if the concession were niade, and it is not, that Kimber’s statements were admissions of all the .conspirators, and hence of the defendants, still the book was incompetent because there was no evidence in the case that Kimber ever said or admitted that he had correctly entered in the book, or in the memoranda, the amount of moneys which he, or his firm, had received, and George A. Barton did not ■testify that those moneys were correctly entered. The fact is, however, that those entries were not acts in execution of the conspiracy. The making of those entries did nothing toward the accomplishment ■of the purpose of the conspiracy. This purpose either had or had not ■been accomplished before the entries were made, hence these entries were not admissible, either as overt acts, or admissions of a conspirator, nor as independent testimony of verified writings. They were nothing but the unverified, and hence incompetent evidence of that which Kimber L. Barton happened to write.

The chief reason for the rule which excludes • hearsay testimony is that its obedience subjects, while its disregard relieves, the parties ■whose statements are offered, from the cross-examination of opposing ;parties. The right of cross-examination is the great safeguard against fraud, false statements, and half truths resulting from statements of , parts and omissions of other parts of conversations and transactions, which are frequently more misleading and dangerous than direct falsehoods,, It furnishes the cardinal and most effective, means to discover •and disclose the whole truth in all judicial investigations, and, under the English and American systems of jurisprudence, the opportunity •to exercise the right of cross-examination is a condition precedent to •the reception of the direct evidence of the witness. Heath v. Waters, 40 Mich. 457, 471; Sperry v. Moore’s Estate, 42 Mich. 353, 361, 4 N. W. 13. If the unsworn written statements of witnesses may be received in evidence upon the testimony of a third party that the witnesses told him they were true, then the witnesses who know the facts may make their written statements thereof, and tell one who knows them not that those statements are true, arid the accused may be deprived of the privilege of being confronted by, and of all opportunity to cross-examine, the real witnesses against him, for, as in the case at bar, they may be conveniently absent and the witness who produces their written statements may know nothing, but that they told him they were true.

No rule of law is more salutary, or more indispensable to the security of the life, liberty, and property of the citizen, than that which prohibits the repetition of the written or oral statements of absent persons to determine issues between litigants, and commands that only after due notice, after opportunity for cross-examination of the very parties whose statements are offered, and then only under the solemnity of an oath or affirmation shall their stories be evidence. Disregard this rule, and the most sacred rights of persons and property-are at the mercy of the whimsical and pernicious gossip of the reckless, the irresponsible, and the vicious. Mima Queen, etc., v. Hepburn, 7 Cranch, 290, 295, 3 L. Ed. 348; Board of Com’rs v. Keene Five Cents Sav. Bank, 47 C. C. A. 464, 470, 108 Fed. 505, 510; Resurrection Gold Min. Co. v. Fortune Gold Min. Co., 64 C. C. A. 186, 186, 188, 129 Fed. 668, 674, 676; National Masonic Acc. Ass’n, etc., v. Shryock, 20 C. C. A. 3, 7, 73 Fed. 774, 777. In the ease in hand one of the most important, if not the most important, fact in issue was permitted to be proved to the jury by the unverified written statement of one who was either a stranger or a criminal and who was permitted to be absent from the trial, so that the defendants were deprived of all opportunity to cross-examine him on this crucial question, and of the right to he confronted with one of the principal witnesses against them. A conviction in this case ought never to be permitted to stand upon such evidence.

The other questions discussed in the opinion of the majority are not determinative of the case as it is now presented to this court, and I do not desire to be deemed to have expressed any opinion upon them.