State v. MacE

Bosworth, J.

In this cause, evidence was admitted to pass to the jury of a certain entry in a book, being the cash-book of the Providence Gas Company. The purpose of the evidence was, to prove that the defendant paid for gas used at the Empire Saloon in the city of Providence ; the question being, whether the defendant was proprietor and manager of the said saloon. The entry was made in the book by one Thomas F. Vaughn, who was alleged to be without the jurisdiction of the court. The testimony was admitted upon proof of the handwriting of said Vaughn, it being admitted that Vaughn was out of the jurisdiction of the court, and in parts unknown.

The general principle, as established by the leading English and American cases, is, that entries made in the regular and usual course of business are admissible in evidence after the death of the person who made them, on proof of his handwrit- • ing. In some of the states of this country absence from the state, as far as it affects the admissibility of secondary evidence, has the same effect as the death of the witness. In Massachusetts insanity has been held equivalent to death. In New York and Alabama the strict rule is adhered to, that the person who made the entry must be dead to render the entry admissible. The principle as established by the American decisions, on which an entry is admitted as -evidence, seems to be, that the acts of men performed in the usual course of business and committed to writing, being under obligation to do the act, and where there is no inducement to misstate facts, may be relied on as evidence of things done as they occur. On this principle, entiles made in the regular and usual course of business are admitted as proof, although the person who made them may recollect nothing of the facts, upon his testifying to the authenticity of the entry. It would seem, therefore, if this evidence may be admitted, when the person who made the entry is present to verify the book, the entry being all that constitutes the evidence, if he be dead or absent, secondary proof that it was kept by him is admissible, on the same ground that a subscribing witness to an instrument, being absent, his handwriting may be proved, or a copy of an instrument, when the original is lost, may be offered in proof. All that is necessary to render the entry admissible as evidence, if the witness is living, is, that he shall testify that the entry was made in the regular course of business in his handwriting; and if he be absent or dead, other witnesses may be competent to testify to that.

We think, therefore, that the testimony was properly admitted. Whether, when admitted, the entry amounted to any proof of the fact, to establish which it was introduced, is another question. If it did not, it was irrelevant testimony. It was a mere memorandum of money received to credit of cash, from the defendant. In a subsequent stage of the trial, the defendant put in evidence what the person who made the entry swore to on a former trial, which went to show that the gas bills for the Empire Saloon were not paid by the defendant, but that the money was received from another person. It is contended that the entry in the book is competent testimony in answer to this testimony offered by the defendant. We are inclined to think, that the testimony was irrelevant, and, on that ground, ought not to have been admitted. But we do not see how it could aflect the verdict of the jury. The judge charged the jury that it was evidence of the very lightest character, and entitled, in any respect, to very little weight, and that in connection with the testimony of Vaughn on the former trial, it was entitled to very little if any- consideration, and that no inference whatever could be drawn by the jury from said entry. We thinkát could not have affected the verdict injuriously to the defendant, and is not a sufficient cause for awarding to him a new trial. The ruling of the judge, in effect, excluded it from the case, as affirmative testimony on the part of the state.