State v. Hayden , 171 La. 495 ( 1930 )

The fundamental error in the prevailing opinion in this case is in the failure to observe the difference between documentary evidence and ex parte or hearsay declarations. Documentary evidence is admissible in a criminal prosecution, when the existence of the document or record is itself relevant to some issue in the case; but ex parte declarations or certificates, even by a public officer, are not admissible when the mere fact that such a declaration was made, or that such a certificate was issued, is not relevant, and when the purpose of offering the document in evidence is to prove the truth of what is stated in it. I tried to make that distinction plain in the explanation I gave, and by the authorities I cited, in the opinion which I wrote, and which was unanimously adopted, in State v. Wilson,14 La. 404, 75 So. 95, 97, Ann. Cas. 1918D, 789. In that case it was held that Act No. 40 of 1908 violated article 9 of the Constitution, in that the statute undertook to permit the introduction in evidence in a criminal case of an ex parte declaration or certificate of the internal revenue collector that a certain license or permit had been issued to a certain person. It was said that the statute would not be unconstitutional if it declared that a certified copy of a record in the office of the internal revenue collector was admissible as prima facie evidence. The distinction was drawn thus:

"If the statute did provide merely that a certified copy of the record kept in the office of the collector of internal revenue should be admissible in evidence in a prosecution for retailing intoxicating liquor without a license, and that such certified copy of the record would be prima facie evidence of the guilt of the party accused, it would not violate the constitutional guaranty referred to, according to the decision rendered in the case of State v. Donato, 127 La. 393, 53 So. 662, where it was held that that constitutional provision had application only to witnesses, not to documentary evidence. But a certified copy of the record kept in the office of the collector of internal revenue is not, of itself, sufficient proof to warrant the conviction of a person accused of selling intoxicating liquor in violation of the law.

"At common law an officer who is authorized to certify to the correctness of a copy of a record kept in his office has no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect. The ex parte certificate of a public officer, as to what the records kept in his office show, or prove, is not, in the absence of statutory authority, admissible in evidence on the trial of a lawsuit. That is because it is the province, not of a keeper of public records, but of the judge or jury charged with the trial and determination of the case, to interpret documentary evidence and determine its effect. See Wigmore, § 1678, note 1; Jones on Evidence (2d Ed.) p. 684, par. 543; Sykes v. Beck, 12 N.D. 242, 96 N.W. 844; McGuire v. Sayward, 22 Me. 230; State v. Champion, 116 N.C. 987,21 S.E. 700; Francis v. Mayor, 58 N.J. Law, 522, 33 A. 853; Brill v. Christy, 7 Ariz. 217, 63 P. 757; 17 Cyc. 337. See, also, Gill v. Phillips, 6 Mart. (N.S.) 298; Seghers v. His Creditors, 10 Mart. (O.S.) 54.

"The Act No. 40 of 1908, authorizing the collector of internal revenue to furnish a certificate showing what his records contain or prove, and making such certificate admissible in evidence on the trial of a lawsuit, and making it prima facie proof of a relevant fact, would not violate any provision of the Constitution of this state, and would, perhaps, be valid legislation, if it had reference to civil cases. But the Legislature cannot allow an ex parte certificate from the internal revenue collector, showing that a United States internal revenue license or permit was issued to a person named in the certificate, to be admissible in evidence in a criminal prosecution, and to be prima facie evidence of the guilt of the party accused, without violating the constitutional guaranty that:

"``The accused in every instance shall have the right to be confronted with the witnesses against him.'

"Undoubtedly the Legislature can provide that a certifiedcopy of a record kept in the office of the internal revenue collector shall be prima facie evidence that any person to whom a license for the sale of intoxicating liquor has issued is engaged in selling such liquor. And such certified copy would be admissible in evidence on the trial of any person bearing the name given in the certified copy, for selling intoxicating liquor in violation of law. The introduction of a certified copy of suchpublic record in evidence in a criminal prosecution would not violate article 9 of the Constitution. Our objection to the Act No. 40 of 1908 is that it makes an ex parte statement orcertificate prima facie evidence of the guilt of a person on trial for violating a criminal statute."

I have italicized the expression "certified copy of a public record" and the term "ex parte statement or certificate" in order to distinguish them. The distinction is this: That a certified copy of a public record is documentary evidence; and the constitutional guaranty that the accused shall have the right in every instance to be confronted by the witnesses against him does not apply to documentary evidence. But an ex parte certificate of a public officer, purporting to state what his records show, or purporting to furnish his knowledge on a particular subject, is not documentary evidence; and to say that such a certificate or declaration is admissible in evidence, in lieu of the testimony of the officer himself, is violative of the constitutional guaranty.

I concede that, before the Code of Criminal Procedure was adopted, this court had decided in several cases that the procès verbal of the coroner's inquest was admissible in evidence in a prosecution for murder or manslaughter to prove the death and the cause of death. But, in the cases where that was held to be the law, the proof of the death and of the cause of the death did not affect the question of guilt or innocence of the party on trial. In many homicide cases the proof of the death and cause of death does not tend to convict the party on trial. For example, where the defense is self-defense, there is generally no dispute about the death or the cause of death. In fact, it is very seldom that there is any dispute about the fact or the cause of the death in a prosecution for murder or manslaughter. And, even in cases where the fact or the cause of the death is disputed, the circumstances of the case may be such that the proof of the death and of the cause of death would not affect seriously the question of guilt or innocence of the party on trial. It was on that theory that the court ruled as it did in State v. Parker, 7 La. Ann. 83; for the court said, in substance, that, if the proof of the death and of the cause of death did tend to prove that the party on trial committed the crime, the procès verbal of the coroner's inquest would not be admissible. I quote from page 85 of the report, viz.:

"Our Constitution, however, provides that a person accused of a crime, shall have the right of meeting the witnesses face to face. Therefore, that part of the coroner's inquest, which tends to trace the death to a person accused of the deed, is not evidence on the trial, because it tends to show guilt in him, to the exclusion of others; and, therefore, he has the constitutional right of meeting the witnesses face to face. The deposition of the witnesses before the inquest, if taken in writing, should not, therefore, be given in evidence on the trial, much lessshould the opinion of the coroner and jury of inquest, given asthe foundation of an order of arrest, that the death was causedby the accused." (The italics are mine.)

Now, if we follow the philosophy and reason for the decision which I have quoted, we are bound to observe that the procès verbal of the coroner's inquest was not admissible in this case, "because," as the court said in State v. Parker, "it tends to show guilt in him" — the defendant in this case. His defense was that no poison had been administered to his wife — that she had died of acute Bright's disease. It was he who administered medicine to her and attended to her wants during her last illness; and, so, if her death was caused by strychnine poisoning, as stated in the procès verbal of the coroner's inquest, the jury was bound to conclude that the defendant on trial administered the poison. In fact the question of the cause of the death was the only question of fact which the jury had to decide in determining the question of guilt or innocence of the defendant. Under those circumstances, I say that, according to the rulings cited in the prevailing opinion rendered in this case, the procès verbal of the coroner's inquest was not admissible in evidence.

It is not possible to reconcile the ruling in this case with the ruling made in State v. Green, 161 La. 620, 109 So. 143; where it was held that section 4 of Act No. 60 of 1914, p. 152, which declared that a certificate issued by the registrar of vital statistics should be prima facie evidence of the facts therein recited, was violative of section 9 of article 1 of the Constitution 1921, in so far as it undertook to make such a certificate admissible to prove the fact of the death in a prosecution for murder.

Referring now to bill of exception No. 2, I do not see how it can be said that the affectionate letters which were written by the wife to her husband during their separation, a short time before her death, were "hearsay evidence." The defendant's stepdaughter — daughter of the deceased — testified, as a witness for the state, that the defendant had treated his wife cruelly. The love letters which she wrote to him at that time were offered in evidence to rebut the testimony given by the child. They were not offered or intended to prove the truth of any declaration made in the letters, but merely to prove the fact that the relation between the husband and wife was amicable and affectionate; that is, to prove the fact itself of the wife's manifestations of love and affection for her husband. The rule which forbids the introduction of hearsay evidence is not applicable when the mere fact of the making of the ex parte statement is itself a relevant fact, regardless of the truth of the ex parte statement. The letters were not only admissible in evidence, but they were in fact the best evidence, and were therefore the only admissible evidence, to prove what the letters contained — not to prove the truth of what the letters contained, but to prove the fact itself that such letters were written by the wife to her husband. The letters might not have been deemed sufficient to rebut the testimony of the stepchild of the defendant; but that was a matter for the jury to determine. For that reason, I respectfully submit that the following expression in the prevailing opinion rendered in this case is out of place, viz.:

"The feelings of affection for the husband, said to have been expressed in the letters, were not at all inconsistent with the unkindness of the husband towards his wife, nor could the letters be in rebuttal of the act of brutality in choking her."

That is the same as to argue — or to lay down as a rule of human conduct — that a woman is as apt to have an affection for a brutal husband as she is to have an affection for a kind husband. I doubt that a jury would believe that. It is not every wife who is so tolerant or considerate as to say to her husband: "I know not, I ask not, if guilt's in thy heart; I but know that I love thee, whatever thou art."