objections of the defendant to the introduction of dispatches purporting to be from the defendant, and to and from McDonald and Joyce: "We are of the opinion that the objection to the dispatches which have been offered in evidence, based upon the ground that they are not relevant or material, is not well taken. The jury is the constitutional tribunal to determine controverted questions of facts, under appropriate advice from the court to assist them in the discharge of this duty. If the evidence offered tends, in any degree, to establish the existence of any material fact, it cannot be rejected as irrelevant, but must be received and submitted to the consideration of the jury. "To reject the dispatches offered, on the ground that they were irrelevant and immaterial, would be a decision by the court that such dispatches had nothing to do with the alleged conspiracy, and would take that question, which is a question of fact, from the jury, whose exclusive province it is to decide questions of fact. We do not deem it expedient, or even proper, to remark upon the several dispatches, or to say anything in the presence of the jury calculated to disclose the views of the court as to the force and effect of the several dispatches offered in evidence. It is not to be inferred that, in admitting the dispatches, the court holds that they do or do not connect the defendant with the alleged conspiracy. That is a question for the jury, under advice and direction from the court, which should properly come in the charge or summing up to the jury. "As to the objection that some of the dispatches addressed to the defendant were unanswered, we are of the opinion that, this alone does not constitute a sufficient ground to exclude them. Such dispatches are to be viewed in connection with all the circumstances of the case, including the nature of the dispatches themselves, as calling for an answer or otherwise, and the situation and relation of the parties, and the effect to be given to the circumstance, that no answers were returned, is to be determined by the jury upon the whole evidence, under the rules of the law to be given in the charge to the jury, bearing upon the subject. "As to the dispatches between McDonald and Joyce, confessed conspirators, such dispatches are admissible as statements or acts of conspirators among themselves, in furtherance of the conspiracy; but as to the defendant (Babcock) they go for naught, unless he is shown, by other evidence, to be connected with the conspiracy charged in the indictment." United States v. Babcock, 3 Dill. 571. § 60. Presumptions as to Telegrams.-Proof of the sending of a letter by mail raises the presumption of its receipt by the addressee, and for the same reasons telegrams are now held to be subject to the same rules. Trotter v. Maclean, L. R. 13 Ch. Div. 574; United States v. Babcock, 3 Dill. 573; Breed v. First Nat. Bank, 6 Colo. 235; Scott & Jarnagin, Telegraphs, §§ 340, 341; Allen, Teleg. Cas. passim; Howley v. Whipple, 48 N. H. 487; Dunning v. Roberts, 35 Barb. 471; Trevor v. Wood, 36 N. Y. 307; Durkee v. Vermont Cent. R. Co. 29 Vt. 127; Rosenthal v. Walker, 111 U. S. 185, 28 L. ed. 395. The notice to produce is sufficient to authorize the admission of a telegram, although it may have been presumed that the papers called for were in the possession of the telegraph company. Burton v. Payne, 2 Car. & P. 520. By the unqualified indorsement of the United States Supreme Court, the principles announced by the state jurisdictions have received additional commendation as authoritative utterance of the law, and in Rosenthal v. Walker, supra, Mr. Justice Wood announced the rule in language that places the sentiments of the Federal court beyond cavil, controversy, or question. He says: "The rule is well settled that if a letter properly directed is proved to have been either put into the postoffice or delivered to the postman, it is presumed from the known course of business in the postoffice department, that it reached its destination at the regular time and was received by the person to whom it was addressed. Saunderson v. Judge, 2 H. Bl. 509; Woodcock v. Houldsworth, 16 Mees. & W. 124; Dunlop v. Higgins, 1 H. L. Cas. 381; Callan v. Gaylord, 3 Watts, 321; Starr v. Torrey, 22 N. J. L. 190; Tanner v. Hughes, 53 Pa. 289; Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Huntley v. Whittier, 105 Mass. 392, 7 Am. Rep. 536. As was said by Gray, J., in the case last cited: The presumption so arising is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty and the usual course of business, and when it is opposed by evidence that the letters never were received, must be weighed, with all the other circumstances of the case, by the jury, in determining the question whether the letters were actually received or not."" § 61. Secondary Evidence of Contents.-As in cases of other writings, proof of the loss of a telegram is a necessary foundation to the admission of parol evidence of its contents. Whilden v. Merchants & P. Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1. It has been held that the testimony of the operator in charge of the company's office from which a telegram was sent, that he sent away all the papers found there shortly after the telegram was sent, and that he has been informed that they were destroyed, is not competent to show the destruction of the telegram for the purpose of admitting parol evidence of its contents. American U. Teleg. Co. v. Daughtery, 89 Ala. 191. This subject is treated generally in connection with the topic of the preceding chapter in 2 Rice, Civil Evidence, 1007-1040. CHAPTER X. MEMORANDA IN EVIDENCE. § 62. Prerequisites Necessary to the Introduction of Memoranda. 63. Time of Making Memoranda. 64. Memoranda of Party Since Deceased. 65. Views of the United States Supreme Court. 66. Views of the Alabama Supreme Court. 67. Statement of the English Rule. 68. A Distinction Noted. 69. Restrictions of the General Rule. 71. The Formula Deduced. 62. Prerequisites Necessary to the Introduction of Memoranda.—It is an indispensable preliminary to the introduction of memoranda in evidence that it should appear in the case that the witness is unable without the aid of the memoranda to speak from memory as to the facts. It is only as auxiliary to, and not as a substitute for the oral testimony of the witness that the writing is admissible. It is the duty of the court in all cases to see, before receiving a memorandum in evidence, that it was made at or about the time of the transaction to which it relates, that its accuracy is duly certified by the oath of the witnesses, and that there is necessity for its introduction on account of the inability of the witness to remember the facts. Collins v. Rockwood, 64 How. Pr. 57. A witness who says that after refreshing his memory by a written memorandum, made by himself at or about the time of the occurrence, he cannot recollect the fact, but that he is confident that he knew the memorandum to be correct when it was made, is not required to swear to the facts in positive terms, but the memorandum itself is received in connection with and as auxiliary to the oral testimony. § 63. Time of Making Memoranda.-It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the trans action, and while it must have been fresh in his memory. The memorandum must have been "presently committed to writing," (Lord Holt in Sandwell v. Sandwell, Comb. 445, Holt, 295); "while the occurrences in it were recent and fresh in his recollection," (Lord Ellenborough in Burrough v. Martin, 2 Campb. 112); "written contemporaneous with the transaction," (Chief Justice Tindal in Steinkeller v. Newton, 9 Car. & P. 313); or "contemporaneously or nearly so with the facts deposed to," Chief Justice Wilde, afterwards Lord Chancellor Truro, in Whitfield v. Aland, 2 Car. & K. 1015. See also Burton v. Plummer, 2 Ad. & L. 341, 4 Nev. & M. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72-77; Spring Garden Mut. Ins. Co. v. Evans, 15 Md. 54, 74 Am. Dec. 555. The reason for limiting the time within which the memorandum must have been made are, to say the least, quite as strong when the witness, after reading it has no recollection of the facts stated in it, but testifies to the truth of those facts only because of his confidence that he must have known them to be true when he signed the memorandum. Halsey v. Sinsebaugh, 15 N. Y. 485; Marely v. Shults, 29 N. Y. 346; State v. Rawls, 2 Nott. & McC. 331; O'Neale v. Walton, 1 Rich. L. 234. It is an elementary rule that when an entry has been repeated, in the regular course of business, one having been copied from another, at or near the time of the transaction, all the entries are regarded as original. § 64. Memoranda of Party Since Deceased.--The authorities are unanimous in declaring that memoranda made by a person in the regular course of his employment are competent as evidence after his death and the inclination seems to be to extend this rule so as to include those parties who have passed beyond the jurisdiction of the court or through infirmity or insanity are unable to attend the trial. These assertions find warrant and support in the following cases: Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 181; Philadelphia Bank v. Officer, 12 Serg. & R. 49; Augusta v. Windsor, 19 Me. 317; Cass v. Bellows, 31 N. H. 501, 64 Am. Dec. 347; Whitcher v. McLaughlin, 115 Mass. 167; Mayson v. Beazley, 27 Miss. 106; Massey v. Allen, L. R. 13 Ch. Div. 558; Welsh v. Barrett, 15 Mass. 380; Stewart v. Conner, 9 Ala. 803; Elliott v. Dycke, 78 Ala. 150; Laird v. Campbell, 100 Pa. 159; State v. Phair, 48 Vt. 366; Porter v. Judson, 1 Gray, |