ments. This rule is of general application to all writings in th possession of one or more accused persons indicted and trie jointly. Thus, where documentary evidence of an incriminating character was, at the request of one defendant delivered to th other, the defendants tried jointly are not prejudiced by the ad mission of proof of the contents of the document by secondary evidence.38 So, the contents of a letter which was written from jail by the accused to his wife may be proved by secondary evi dence for the reason that the law does not permit the prosecution to compel the wife to produce it in court. A jailor or other cus todian of the prison, who, under the rules of the jail or with the knowledge of the accused, opened and read the letter may testify to its contents.39 Documentary evidence which is proved to have been in the possession of the prosecution, before the trial, should be produced or its absence accounted for before the court should admit secondary evidence of its contents.40

§ 43. Writings whose existence and contents are in issue-Im peachment by contradictory writings.-Where the existence or the contents of a writing which is material to the issue, or has an im portant bearing upon the credibility of a witness, are disputed they cannot be shown orally, or by a copy, until the absence of the original is accounted for. So, where in a criminal prosecution based on a violation of a statute, or city ordinance, it is necessary to prove the existence, or contents, of the statute, or by-law, i cannot be done by oral evidence.1 It has been found, as matter of observation, that the memory is extremely unreliable. Aside from any temptation to commit perjury, to avoid which this rule has been adopted, but which would always be present if the lan guage of disputed instruments were allowed to be shown by ora evidence, the court has a right to see the whole document, in its entirety.

Where a witness is cross-examined on the contents of a letter which he is alleged to have written, for the purpose of impeaching

39 State v. Marsh, 70 Vt. 288, 40 Atl. 836.

41 See

Tiedeman on Municipa Corp., p. 264, note 5; Underhill or DeLeon v. Territory, 9 Ariz. 161, Evid., §§ 32, 143a, for mode of prov ing ordinances and statutes.

80 Pac. 348.

40 Young v. People, 221 Ill. 51, 77 N. E. 536.

42

him, by proving prior contradictory statements therein, the letter itself must first be read to him, and he must be asked if he has written it. It is not proper to read a portion of it, or to incorporate a part, or all of it in a question, and to ask him if he wrote a letter to that effect. So, where a witness is examined under a commission, and, in reply to an interrogatory, gives the contents of a letter without producing it, the answer will be stricken out, if there is no method of obtaining the letter.43

44

An allegation of forgery suggests by implication the existence of a forged paper which must be produced, as the best evidence of the fact of forgery, or accounted for, even where the forgery is collateral and is relevant solely for the purpose of showing a criminal intent. Unless the accused has been connected the erroneous admission of parol evidence of the contents of a missing writing is cured by its subsequent production, by the party claiming under it, or by his adversary. A copy of a writing may be received to prove the original upon condition that its correctness shall subsequently be made to appear, and the impropriety, if any, of receiving such a copy is cured by showing that it is a true and correct copy.

46

45

44. Primary evidence of collateral facts.-Wherever the facts. in issue are not the reciprocal rights and duties of the parties under a writing, but some fact collateral to its contents, its production is not required as primary evidence of that collateral fact, The fact may be proved by parol, for, if oral evidence is as near the fact to be proved as the writing, both are primary evidence.*

42 Underhill on Evid., § 350.

42 Peck v. Parchen, 52 Iowa 46, 2 N. W. 597; State v. Matthews, 88 Mo. 121, 125, 126.

**State v. Breckenridge, 67 Iowa 204, 206, 25 N. W. 130. See post,

$$ 423, 427.

duce a writing by which his title vested, but may testify orally to the fact of ownership where that fact is collateral. That a certain person was a tenant may be proved orally by showing he paid rent, though a written lease exists. Rex v. Holy Trin

State v. King, 81 Iowa 587, 47 N. ity, 7 B. & C. 611, 614, I Man. & Ry. W. 775, 776.

"Glover v. Thomas, 75 Tex. 506, 12 S. W. 684; DeLoach v. Stewart, 86 Ga. 729, 12 S. E. 1067.

47 The owner of real or personal property will not be required to pro

444; but the contents of the lease, the names of the parties and the terms of the tenancy can be proved only by the lease itself. Strother v. Barr, 5 Bing. 136, 139, 145, 152, 2 M. & P. 207; Doe v. Harvey, 8 Bing.

Accordingly the oral evidence of prison or jail officials is admissible to prove that prisoners, whom the accused had visited in jail, were imprisoned for crimes similar to that with which he is charged. The fact of their being in prison being collateral to the issue of the guilt of the accused may be proved orally. The arrest of the accused on a charge other than that for which he is on trial may be proved by parol. The testimony of an officer who made the arrest is primary evidence of that fact, though the loss of a book in which it was recorded is not shown.

Generally when the contents of a letter or telegram are essential to determine the rights of the parties, it must be produced.50 But if the sole fact to be proved is that a letter or telegram was sent or received, the writing need not be produced. 51

So payment may be shown by oral evidence of a tender and acceptance, though a receipt in writing has been given, while an oral demand may be proved though a written demand may have

239; Rex v. Merthyr Tidvil, 1 B. & Ad. 29, 31; Wooldridge v. State, 49 Fla. 137, 38 So. 3; Kearney v. State, IOI Ga. 803, 29 S. E. 127, 65 Am. St. 344.

48 Long v. State, 10 Tex. App. 186, 198; State v. McKinnon, 99 Me. 166, 58 Atl. 1028.

10 State v. McFarlain, 42 La. Ann. 803, 806, 8 So. 600. An oral statement by a witness that he had been divorced from the accused is competent where the divorce was merely collateral to the guilt of the accused. Williams v. State, 149 Ala. 4, 43 So. 720.

50 The oral testimony of a jailer to the contents of letters sent or received by a prisoner while in jail is inadmissible until their non-production is accounted for. McAfee v. State, 85 Ga. 438, 11 S. E. 810; Bell v. State (Ala.), 47 So. 242.

51 Conner v. State, 23 Tex. App. 378, 385, 5 S. W. 189; Holcombe v. State, 28 Ga. 66, 67. The fact that the prosecutrix in a trial for seduc

tion made an assignation by a letter may be proved orally though the letter is not forthcoming. State v. Ferguson, 107 N. Car. 841, 846, 847, 12 S. E. 574. The presence of a document during an interview may be shown orally without accounting for its absence. Tatum v. State, 82 Ala. 5, 8, 2 So. 531. The fact that the deceased was an officer is provable by parol on a trial for homicide of an officer. Hardin v. State, 40 Tex. Cr. App. 208, 49 S. W. 607. The existence of a corporation either foreign or domestic has been proved in a criminal case by parol. Graff v. People, 208 Ill. 312, 70 N. E. 299, aff'g 108 Ill. App. 168. As to necessity for the production of a doctor's diploma where its existence is material, see McAllister v. State (Ala.), 47 So. 161. As for example when the accused is on trial for practicing medicine without a license. The fact that a person is a physician when only collaterally involved may also be proved orally.

been made.52 Where the receiver of a telegraphic dispatch is the employer of the company, the writing delivered to the company's operator by the sender is the original.53 But where the company is the agent, not of the receiver but of the sender of the dispatch, the written message which is delivered to the addressee is the original.54

The tally sheets showing the count of the ballots cast at an election are primary evidence of the count of the ballots where the accused, an officer of elections, is charged with making a false count. The ballots themselves are evidence of the number of ballots cast but they are not the only evidence of that fact.5

55

A certificate, parish register, transcript of a public record or other public writing is not necessarily primary evidence of the existence of the marriage relation, even when it has been declared by law to be presumptive evidence.50 As a general rule, and though a certificate which is known to exist is not produced, the fact of a marriage having been solemnized may be proved by other evidence, even in criminal trials. The performance of a marriage ceremony may be shown by the evidence of witnesses who were present, and sometimes by the declarations or admissions of the accused. The evidence of such witnesses is not secondary to that furnished by the writing. But usually greater cogency of evidence to prove marriage is required in a criminal trial where marriage is directly in issue as in bigamy than will be demanded in a civil proceeding.57

52 Smith v. Young, I Campb. N. P. 439.

State v. Gritzner, 134 Mo. 512, 36 S. W. 39; Utley v. Donaldson, 94 U. S. 29, 24 L. ed. 54. See cases, Underhill on Ev., § 34. A typewritten copy of a telegram is admissible if the accused has admitted he sent the telegram without accounting for the absence of the original message. Dunbar v. United States, 156 U. S. 185, 195, 39 L. ed. 390, 15 Sup. Ct. 325.

It is necessary, in order to bind the alleged sender of a telegram, to show either that he signed or sent it

or that he acted thereupon if the telegram had been received by the addressee. Young v. People, 221 Ill. 51, 77 N. E. 536.

Commonwealth v. Edgerton, 200 Mass. 318, 86 N. E. 768. Parol proof may be made of the election of the officers of a corporation and any one present at the election may state who was elected. State v. Farrier, 114 La. 579, 38 So. 460.

56 Commonwealth v. Dill, 156 Mass. 226, 228, 30 N. E. 1016.

57 See Underhill on Evid., §§ 114, 144, and post, §§ 383, 403-405.

Where a writing has no direct bearing upon a material point in issue, or relevancy to it, but is only evidence of a collateral fact, or so far as it is evidence of a collateral fact, no objection exists to oral evidence to prove a fact contained in it.58

So, a written report of an incident made by a witness as a part of his duty need not be produced or accounted for to render his oral testimony admissible. Thus, a jailer may state orally that a prisoner admitted he was married, though this fact was also entered on the prison books," as it should have been.

§ 45. Exceptions in the case of proving general results.-To prevent the time of the court from being unduly occupied in the examination of numerous and bulky books of account and other writings to prove a single fact, the production of the writings may be dispensed with and a witness, who has examined the documents, may state orally the result of the examination which he has made out of court. This rule is applicable only where the books are multifarious and voluminous, and the jury would find it difficult, if not impossible, to ascertain anything material from their inspection. If the general result is stated in writing, it must be verified by the party who abstracted it, and the adverse party must be given a fair opportunity to examine the originals.

60

In such cases, it should be remarked, the witness is not required to prove the contents of the writing. He is merely asked

58 For example, a writing is not indispensable to prove the nationality of a ship, where that fact is collateral merely. United States v. Pirates, 5 Wheat. (U. S.) 184, 5 L. ed. 64; State v. Hayes, 138 N. Car. 660, 50 S. E. 623; Cox v. State, 3 Ga. App. 609, 60 S. E. 283.

59 Commonwealth v. Walker, 163 Mass. 226, 39 N. E. 1014. If the writing is one that it is customarily destroyed as soon as used, it would not seem logical, or fair, to require its production if its contents could be proved orally. But it was held in State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, that the admissions of a deaf mute, written on slips used by

him in conversing with others, could not be proved orally, when the slips used were missing and unaccounted for.

60

Boston, etc., R. Co. v. Dana, I Gray (Mass.) 83, 104; Bode v. State, 80 Neb. 74, 113 N. W. 996; People v. Miles, 123 App. Div. (N. Y.) 862, 108 N. Y. S. 510. It has been held that a witness will not be permitted to state the result of his examination of books unless the books were kept by him, and the entries made by him, or in his presence. Donner v. State, 69 Neb. 56, 95 N. W. 40. This, however, is not the general rule. Ruth v. State, 140 Wis. 373, 122 N. W. 733.