it was a true statement of the facts as he then recollected them, the record may, under certain circumstances, be admissible as evidence in itself and aside from anything the witness may testify to orally. The using of the evidence of a past recollection embodied in a writing which the witness swears was true to his knowledge when he made it, but about which he has no present recollection whatever, depends upon certain rules which have nothing to do with the use of memorandum to refresh the recollection and consequently demand no discussion in this place.

A present recollection of past events may be strong or weak according to circumstances. These circumstances are the character of the events, whether of striking interest or of mere commonplace routine; and also on the remoteness of the events in point of time. In the case of events of great importance and interest, particularly if the witness was himself an interested person, the present recollection is apt to be vivid and no refreshing is required. Events of routine or commonplace character are very apt to be faint in the recollection of a witness who may have participated in them and for this reason, the rule that he may refresh his memory when necessary was enunciated. For a witness may aid or refresh his memory, meaning thereby his present recollection of past events, if he has a present recollection where it is weak or faint by consulting, on the witness stand, a writing or memorandum whether it was made by himself or some other person; if after examining the memorandum and because of what he has read thereon, he is able to testify of his present recollection thus renewed and revived.42

If the memorandum is one whose sole use is to refresh the memory, it is not usually competent evidence and a memorandum. or other writing which is admitted to be incompetent may always be used to refresh the memory. The question of its relevancy and materiality should not be considered. It ought not to be read to the jury as evidence,** though it has been held that the

Jenkins v. State, 31 Fla. 196, 12 So. 677; Kingory v. United States, 44 Fed. 669; Commonwealth v. Clancy, 154 Mass. 128, 27 N. E. 1001; State v. Collins, 28 R. I. 439, 67 Atl. 796; Johnson v. State, 125 Ga. 243, 54 S.

E. 184; O'Brien v. United States, 27
App. Cas. D. C. 263.

45 Flood v. Mitchell, 68 N. Y. 507; Pickard v. Bryant, 92 Mich. 430, 52 N. W. 788.

Raynor v. Norton, 31 Mich. 210.

jurors may examine it, not as evidence in the case but to test the credibility of the witness by seeing from it whether it was of such a nature that it could have refreshed the recollection of the witness.45

The opposite party is always entitled to cross-examine the witness in order to ascertain if he has testified truthfully after consulting the memorandum, but he cannot introduce the memorandum for the purpose of establishing the facts therein or for the purpose of contradicting the witness. And inasmuch as the writing is solely to aid the memory if the witness can swear that he 'has a full present recollection of the facts he should not be allowed to inspect the writing.*

46

A witness in a criminal trial will be allowed to consult a writing to refresh his memory under the following circumstances: First. If he, while retaining no independent recollection of the facts transcribed, remembers having made the memorandum, or, when it was made by another, if he remembers having seen it, and that, when he saw it, he knew it was correct.*

47

45 Commonwealth v. Haley, 13 Al- transaction. State v. Legg, 59 W. Va. len (Mass.) 587. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152n.

16 State v. Baldwin, 36 Kan. 1, 12 Pac. 318.

"The opposite party is entitled to inspect it, and he may cross-examine the witness in regard to it; and it may be shown to the jury, not for the purpose of establishing the facts therein contained, but for the purpose of showing that it could not properly refresh the memory of the witness." Commonwealth v. Jeffs, 132 Mass. 5. "But by resort to some memorandum or writing, his memory may be so stimulated and refreshed as to enable him to recollect the fact, and where this is so, it is not proper to introduce the writing in evidence, or read it in the presence of the jury, because it forms no part of the testimony, being used only for the purpose of aiding the mental effort of the witness to recollect the particular

"State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Palmberg, 199 Mo. 233, 97 S. W. 566; Watters v. State (Tex. Cr.), 94 S. W. 1038, 116 Am. St. 476; State v. Colwell, 3 R. I. 132; Woodruff v. State, 61 Ark. 157, 32 S. W. 102; Owens v. State, 67 Md. 307, 10 Atl. 210, 302; Baum v. Reay, 96 Cal. 462, 29 Pac. 117, 31 Pac. 561; Hartley v. Cataract, etc., Co., 64 Hun 634, 19 N. Y. S. 121; Card v. Foot, 56 Conn. 369, 15 Atl. 371, 7 Am. St. 311. See Underhill on Ev., p. 478. In Dugan v. Mahoney, II Allen (Mass.) 572, the court said: "It is obvious that this species of evidence must be admissible in regard to numbers, dates, sales, and deliveries of goods, payments and receipts of money, accounts, and the like, in respect to which no memory could be expected

The other class of cases includes writings which the witness does not remember having seen before, and of whose contents he has no present recollection, but, being able to identify the handwriting as his own or as that of some other person, and knowing it to be genuine, he is able on consulting the writing, and because of its aid and his confidence in its genuineness, to swear independently, and of his own knowledge, to the facts. Suppose, for example, a subscribing witness recognizes his signature to an attestation clause of a will. His memory refreshed, he may be able to testify to the facts of acknowledgment or publication and subscription by the testator and to other accompanying circumstances, though he may have no independent memory thereof. In regard to the first class of writings, it is clear that, under certain circumstances, they may be admissible as independent evidence forming a part of the res gesta. What the requirements are, which must be fulfilled before declarations will be receivable as a part of the res gestæ, is fully explained elsewhere.

§ 218. Character of memoranda employed to refresh the memory.— The writing used to refresh the memory should ordinarily be contemporaneous with the transactions or facts which are mentioned in it. This is the rule which has received the support of the majority of cases. But many authorities hold that the writing need not have been made precisely at the time of the events it describes, if it was made before the memory of the person making it had become weakened and unreliable by lapse of time.1o

to be sufficiently retentive, without depending upon memoranda, and even memoranda would not bring the transaction to present recollection. In such cases, if the witness on looking at the writing is able to testify that he knows the transaction took place, though he has no present memory of it, his testimony is admissible." “Williams v. Wager, 64 Vt. 326, 24 Atl. 765; Weston v. Brown, 30 Neb. 609, 46 N. W. 826; Commonwealth v. Clancy, 154 Mass. 128, 27 N. E. 1001, and Underhill on Ev., ¿338.

49 Sisk v. State, 28 Tex. App. 432, 13 S. W. 647; Culver v. Scott, etc., Lumber Co., 53 Minn. 360, 55 N. W. 552; McGowan v. McDonald, III Cal. 57, 43 Pac. 418, 52 Am. St. 149; Adams v. Board of Trustees, 37 Fla. 266, 20 So. 266; Wilber v. Scherer, 13 Ind. App. 428, 41 N. E. 837; Dwight v. Cutting, 91 Hun 38, 36 N. Y. S. 99, 71 N. Y. St. 114. Testimony before the grand jury, taken four months after the occurrences to which it relates, cannot be used to refresh the memory of witnesses called to prove those occurrences. Putnam

Sometimes copies of a writing or memorandum made at the time of the facts which are transcribed have been used to refres the memory when the copy was made after the original, but only if the witness could swear of his own knowledge to their accuracy,50 and the absence of the original is properly accounted for." So a newspaper reporter, testifying as a witness, may refresh his memory by reading a printed article published from manuscript furnished by him, on proof that the original was destroyed. 52

If on the examination of a witness for the prosecution, it turns out that his memory is actually or apparently weak and particularly where, as very frequently happens, he outlines the framework of his evidence for the prosecution but omits details such as dates and places, his memory may be refreshed by asking him whether, on prior occasions he has not made statements containing the forgotten facts before the grand jury or to some of the prosecuting officials or to police officials. His memory, having been refreshed, he may then testify; but if he denies having made the statements he cannot be contradicted by the prosecution by proof that he has made them.5

53

$219. Purpose and importance of cross-examination.-As a means of ascertaining truth, cross-examination is correctly deemed to be at once effective and impartial.54 Writers on evidence have fre

v. United States, 162 U. S. 687, 40 L. ed. 1118, 16 Sup. Ct. 923, 52 Am. St. 149. Counsel have been permitted to refresh the memory of a forgetful witness by reading or having the witness read his evidence on a former trial or from the stenographer's notes. Ehrisman v. Scott, 5 Ind. App. 596, 32 N. E. 867; Battishill v. Humphreys, 64 Mich. 514, 38 N. W. 581. The same rule applies to evidence taken on the preliminary examination. State v. Legg, 59 W. Va. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152n; and to notes taken by counsel or other persons. State v. Dean, 72 S. Car. 74, 51 S. E. 524, or a statement made and signed by him before the grand jury. Smith v. State,

46 Tex. Cr. 267, 81 S. W. 936, 108 Am. St. 991.

50

Stavinow v. Home Ins. Co., 43 Mo. App. 513; Watson v. Miller, 82 Tex. 279, 17 S. W. 1053; Bonnet v. Gladfelt, 24 Ill. App. 533; Flint v. Kennedy, 33 Fed. 820; People v. Munroe, 100 Cal. 664, 35 Pac. 326, 38 Am. St. 323, 24 L. R. A. 33n;

51 Anderson v. Imhoff, 34 Neb. 335, 51 N. W. 854; Birmingham v. McPoland, 96 Ala. 363, 11 So. 427. 62 Hawes v. State, 88 Ala. 37, 7 So.

quently adverted to its peculiar efficacy and excellence, as a means of investigating the motives and personal prejudices of the witness, his relation to the accused or to the prosecution, or to the criminal transaction which is under investigation.

By this process his knowledge and general intelligence, the vividness of his memory, his impartiality or bias towards the accused, his means of observation and his opportunities for obtaining accurate and full information may all be explored and ascertained for the consideration of the jurors to assist them in determining the weight they shall give to his evidence. Whether a witness has been examined so that the opposite party shall be entitled to cross-examine is sometimes an important question. A witness who has been sworn, but to whom no questions have been put, cannot be cross-examined.56 This is the case where the only object of calling the witness is to procure a writing which is to be proved by another witness.57

One of several jointly indicted and tried may be required to cross-examine the state's witnesses and produce his own before the same is done by his co-defendants.58

§ 220. When right to cross-examine is lost-Cross-examination confined to matters brought out on direct.-Where either party has a right to cross-examine in civil cases, it is reversible error for the court to refuse to permit the exercise of the right. But the right of cross-examining is usually but not universally waived by the party making the witness his own. 59

895-897. Right to cross-examine accused who has taken the witness stand as to a confession not admissible in evidence, see 10 L. R. A. (N. S.) 604.

1 Greenl. on Ev., § 446; 1 Stark. on Ev., §§ 160, 161.

one as a means of separating hear- criminal prosecutions, see 38 Am. St. say from knowledge, error from truth, opinion from fact, and inference from recollection, and is a means of ascertaining the order of the events as narrated by the witness in his examination in chief, and the time and place, when and where they oc,curred, and the attending circumstances; and of testing the intelligence, memory, impartiality, truthfulness and integrity of the witness." The Ottawa, 3 Wall. (U. S.) 268, 18 L. ed. 165.

67

Austin v. State, 14 Ark. 555. Rush v. Smith, 1 Cr. M. & R. 94; Underhill on Evid., p. 481.

State v. Howard, 35 S. Car. 197, 14 S. E. 481.

50 Hemminger v. Western Assur. Cross-examination of accused in Co., 95 Mich. 355, 54 N. W. 949.