Lord v. Moore , 37 Me. 208 ( 1854 )

Rice, J.

—- The first exception presents the question, whether, when a deposition is taken on written interrogatories, to which no objection is made at the time of taking, and incompetent testimony is drawn out in response thereto, such testimony can properly be excluded by the Court, at the trial.

A preliminary question has been raised in the arguments as to the meaning of the words, “ written interrogatories,” as used in the 20th § of c. 133, R. S. The plaintiff contends that these words apply to interrogatories when filed for the purpose of taking depositions on commissions; the defendant, tha‘t they apply in all cases where the interrogatories propounded to the witness are in writing.

By reference to § 15 of the same chapter, a solution of this question will be found. It is there provided, that the witness shall first be examined by the party producing him, on “verbal or written interrogatories,” showing clearly that written interrogatories may be resorted to within the meaning of the statute, as well in taking depositions before magistrates on notice, as when taken on commissions* The reason for the rule would seem to apply with equal force in both cases.

In practice, it is well known, that the substance of the testimony of a witness is often given voluntarily, or on the verbal interrogatories of the parties. In such cases, the proceedings are comparatively informal, and an imperfect opportunity is afforded to interpose specific objections. Not so, however, when interrogatories are reduced to writing. Then the same opportunity is presented for a distinct and specific objection, as when interrogatories are filed for taking depositions on commission, and the rule applies alike in each case.

The provisions of § 20, c. 133, were copied, substantially from § 26, c. 94, R. S., Massachusetts. The Court in that State have decided, that that provision does not require objections to the competency of a witness to be made when the deposition is taken, but such objection may be made at the trial. Whitney v. Heywood, 6 Cush. 82. This Court has decided, in the case Polleys v. Ocean Ins. Co., 14 Maine, 141, that testimony, illegal in itself, cannot be admitted-because objection was not made to the interrogatories before they were answered. Such was the established rule of law in this State before the enactment of the statute cited. Does that statute change the rule? We think not. The language of the statute is general, it is true; but in terms it applies to interrogatories only. It is however contended, that if objection cannot be taken to an interrogatory, after it has been answered, the answer itself, if responsive, should be received. To this proposition it is a sufficient answer, that'the statute does not thus extend the rule; and to do so by construction, would be to interpolate into the statute a most important provision. Courts will not hold that established and salutary principles and rules of law are changed by legislative enactment, -when it is necessary, to accomplish that object, to extend those provisions materially, by judicial construction, but will rather seek to harmonize the legislative provisions with existing law. This we think may be done in this case without doing any violence to the language of the statute.

There is a marked distinction between proving a fact which is pertinent to the issue to be tried, in an informal •manner, or by secondary evidence, and in proving a fact wholly foreign to the issue, by primary evidence, though produced in the most formal and technical manner. In the former case, the -evidence is proper in itself; the objection is only to the form of its introduction, and is therefore matter of form, rather than of substance. In the latter the objection is to the evidence itself, to the substance in whatever form it may be produced. This latter species of evidence, being from its very nature illegal, should he excluded from the consideration of the jury, in whatever stage of the proceedings its character may be discovered. The party whose testimony is thus excluded loses no rights, because his evidence being from its nature illegal and incompetent, could not be changed by any modification or change in the form of the interrogatory, if objection should be made thereto. Not so when the objection is merely to the form of the interrogatory, or to the particular manner of proving a pertinent fact. Then, on objection being made, the interrogatory may be modified or withdrawn, or the fact proved in a mode consistent with the established rules of law. It is to this class of interrogatories that the statute applies. This exception is not sustained.

Objection is made to the admission, by the presiding Judge, of certain portions of the deposition of Charles Carr, in which the witness professes to detail conversations had by him with the defendant, in which the witness was solicited by the defendant to blow up a building of one Stack-pole.

Declarations of the defendant, relating to matter in no wise connected with the subject matter then before the jury, could not properly be admitted in evidence. But when the declarations of a party which refer to other matters, are by him so intermingled and connected with other declarations which are pertinent to the issue to be tried, •that they cannot be separated without modifying the signification of the pertinent matter, or to render its meaning obscure, then the whole conversation becomes competent testimony, and should be admitted. It is the fault of the party, if in detailing one transaction or in speaking upon one subject, he so commingles it with other foreign matter, as to make it necessary to introduce the whole conversation, in order to render the part which is competent as evidence intelligible. Such we think was the case in the conversation referred to, and that the whole was therefore properly admitted.

The depositions of Brassbridge, Knox and Works, were propei-ly excluded. They did not contradict the witness sought to be impeached, and were competent for no other purpose.

The fourth objection is entitled to more serious consideration. The situation and acts of the defendant' on the night on which the plaintiff’s property was destroyed, are very material. Isaac Pray had stated in his deposition, that the defendant had requested him, and one Curtis, to blow up the plaintiff’s store, and had agreed to furnish powder with which to accomplish that object; and that on the night on which the property was destroyed, he and Curtis saw defendant about nine o’clock, in his (defendant’s) back yard, near the back side of his barn in Berwick, and that they then and there received from him a bag of powder for the purpose of blowing up plaintiff’s store.

To rebut this testimony, the defendant called Alice Lawrence, who testified, that she was at the defendant’s house on the afternoon before the plaintiff’s store was burned, and that the defendant retired to bed that day one half an hour before sunset, and that she was so situated, that the defendant could not have passed from his chamber from the time he retired to bed, until after midnight, that she was reading during the evening a book called “Afloat and Ashore,” taken from the Great Palis Library, in the name of her uncle, George Moore..

Thus it will be perceived that in this stage of the trial time became material. Was the defendant present at the barn, and did he deliver the powder as testified by the witness Pray ? Bearing directly upon this point, is the testimony of the witness Lawrence. To show that she was mistaken as to the time when she was at defendant’s house reading the book referred to by her, Hayes, the assistant librarian of the Great-Falls Library, was called, and he testified that a book which he then produced, contained the entries of the books taken out of that library, -and that the book, entitled “Afloat and Ashore,” was taken out in the name of George Moore, on the 15th of September, 1849, and not before; and that he delivered said Moore other books from said library, which are charged to him under date of the first and eighth of September. The store of the plaintiff was burned on the night of the 8th of September, 1849.

On cross-examination, it appeared that this book of records was kept in pencil; that the librarian kept the key of the library; that any director could make entries in said book, and take out books, as could any stockholder, who could get the key. He further testified that nearly all the page on which he kept the account of books taken out by George Moore, was in his handwriting; but the entry of the book entitled “ Afloat and Ashore,” was not in his hand writing, but in that of some person unknown to him. He also testified that he knew the entries, under date of Sept. 1 and 8, were made in 1849.

In this position of the case, the book of records was offered in evidence by the plaintiff, and under the objection of the defendant, permitted to go to the jury.

The plaintiff now contends, that the contents of the book were drawn out by the defendant on cross-examination, and therefore, that he cannot be permitted to interpose any objection to the introduction of the book itself.

The witness had, in his examination in chief, stated certain facts in relation to the delivery of books to Moore, and the time when they were delivered. The cross-examination only disclosed the fact that his knowledge of the time when the book, “Afloat and Ashore,” was delivered to Moore^ was obtained wholly from seeing the entry in the book of records, in the hand-writing of some person unknown to him. This could in no just sense be deemed the introduction of the book or its contents, as evidence, by the defendant. The object of the cross-examination, was to show that the statements of the witness were not legitimate evidence for the consideration of the jury; he testifying to facts of which he had no personal knowledge.

The circumstances under which entries made by-third parties, in public records, or books of private individuals, have been much discussed both in this, country and England, and the principles upon which such entries have been admitted as original evidence, are by no means uniform. Perhaps the rule adopted by this Court in the cases Augusta v. Windsor, 19 Maine, 311, and Dow v. Sawyer, 29¡.Maine, 118, is based upon as satisfactory reasons as any found in the reported cases. To make such entries in books of a private character admissible, the books in which they are made must have been fairly and regularly kept, the entries must have been made by a deceased person whose duty it was-to make them, or in the regular course of business, who had personal knowledge of the subject matter entered, and whose situation was such as to exclude all presumption of his having any interest to misrepresent the fact recorded.

.Applying this rule, as indeed any other found in the adjudged cases, and the result cannot be doubtful. The - book was kept in pencil, and on that account the entries were liable to be obliterated, or might easily be modified; entries were made upon it by a very large number of persons, who had access to the library when they desired, and the entry which was most material, that of Sept. 15, was made by some person whose handwriting was unknown to the witness. Entries made in books thus kept, and under such circumstances, are not admissible as original evidence by' any established rules of law. The only purpose for which they could have been properly used was to refresh the recollection of the person by whom they were actually made.

Such was the peculiar posture of affairs at the time when this book was introduced, that it would be difficult to say that it had no influence upon the minds of the jury. The presumption is very strong that it would have very considerable weight with them. The book should have been excluded.

The exceptions are sustained, and a new trial granted.

Shepley, O. J., and Cutting, J., concurred. Hathaway, J., concurred in the result.